[00:00:00] Speaker 00: Case number 22-1097 et al. [00:00:03] Speaker 00: Ali Amjad Ahmad with a mentality of a practitioner versus United States of America. [00:00:09] Speaker 00: Mr. Ferryby for the petitioner. [00:00:10] Speaker 00: Ms. [00:00:11] Speaker 00: Daring for the respondent. [00:00:15] Speaker 04: Mr. Parity, welcome whenever you're ready. [00:00:17] Speaker 03: Thank you, Your Honor. [00:00:18] Speaker 03: Judge Katz, Judge Santel, Judge Pankow, and may it please the court. [00:00:23] Speaker 03: I'd like to make two brief points this morning and then obviously answer any questions you might have. [00:00:27] Speaker 03: The first being that under this court's prior decision and the Supreme Court's intervening decision in the United States versus Arthrex, the Convening Authority for Military Commissions is a principal officer. [00:00:38] Speaker 03: and must be appointed by the president and confirmed by the Senate. [00:00:41] Speaker 03: Under this court's prior holding, the chief committee authority in this case was appointed as an inferior officer, despite the fact that she exercised unreviewable authority to make dispositive decisions and executive judicial decisions. [00:00:54] Speaker 03: What in Arthur X called the decision to bind the executive branch in the application of executive power. [00:01:00] Speaker 03: Arthrex resolves this case, and Respondent remains free to prosecute the petitioner before a appropriately convened military commission. [00:01:09] Speaker 03: Second, a military jury sentenced petitioner on the basis of three novel charges to life in prison. [00:01:19] Speaker 03: This court unanimously vacated two of those charges, including the central charge around which the prosecution built this case on the grounds that those were not crimes. [00:01:30] Speaker 03: Those are not crimes. [00:01:32] Speaker 03: The CMCR affirmed a sentence of life without parole, a more serious sentence, a graver sentence than was imposed by the members. [00:01:42] Speaker 03: by applying the wrong standard of review, making erroneous factual inferences, relying on admissible evidence, and most seriously, making inferences and speculations about how prosecutors could have brought a case for conspiracy alone. [00:01:58] Speaker 04: Let's just start with the appointments issue. [00:02:04] Speaker 04: This court rejected that argument, applying Edmund, [00:02:10] Speaker 04: So that's law of the case, it's law of the circuit. [00:02:12] Speaker 04: You need to show not just close question, you need to show that Arthrex eviscerated our decision. [00:02:22] Speaker 04: And that seems a little hard since Arthrex on its face, the concluding paragraph says we reaffirm and apply the rule from, which is the rule we applied. [00:02:36] Speaker 03: That's correct. [00:02:37] Speaker 03: But what Arthur did at this rate was this court's interpretation of Edmund. [00:02:41] Speaker 03: Edmund identified various factors that would make an individual a principal versus an inferior officer. [00:02:48] Speaker 03: This court had looked to those three factors essentially as cumulative so that an officer could make unreviewable decisions so long as they were subject to certain removal provisions or rulemaking by the Secretary of Defense in this case. [00:03:01] Speaker 03: What Arthur said was that in the context of adjudications, [00:03:04] Speaker 03: The ability to make final decisions, final unreviewable decisions is despotic, is sufficient to make a principal officer, principal officer, because what had been significant, what you, Justice Roberts, actually says in Arthrex, what was significant in Edmonds, what was absent in Arthrex and what is absent here, is the ability of the executive branch to challenge, reverse, review any decision that the convening authority makes. [00:03:27] Speaker 04: What decision could she have made that would be [00:03:33] Speaker 04: final, unreviewable, and adverse to your client. [00:03:39] Speaker 03: Uh, if I don't remember, well, I know in this case, one of the things that petitioners trial council asked the convening authority to do was to vacate the charges on the grounds that he hadn't been allowed to represent himself in the manner he had desired. [00:03:53] Speaker 03: And she rejected that argument. [00:03:56] Speaker 03: Um, and so the rejection of that argument, the denial of a benefit is, is a harm. [00:04:01] Speaker 04: Yeah, but that's that argument about it is garden variety trial error, which is [00:04:08] Speaker 04: reviewable by the CMCR. [00:04:10] Speaker 03: It's not because the convening authority makes a decision on whether or not to affirm or overturn a judgment of a military commission in her sole discretion and prerogative. [00:04:20] Speaker 03: She is able to make judgments essentially purely based on policy, consequential decisions. [00:04:25] Speaker 04: If she enters judgment on the verdict, you have an appeal right to the CMCR with perfectly conventional standards of review [00:04:35] Speaker 04: to make whatever arguments you want. [00:04:38] Speaker 03: With respect to legal error, but I think for Appointments Clause purposes, that actually makes the problem worse because Appointments Clause problems, the Appointments Clause is concerned about ensuring that the president is able to ensure the laws are faithfully executed and being able to ensure that executive branch decisions are made by accountable officers, that the individual making the decision is identifiable and accountable ultimately to the people. [00:05:00] Speaker 03: And here, the executive branch has no way of countermanding any decision the convening authority makes. [00:05:06] Speaker 03: For example, to overturn a verdict. [00:05:07] Speaker 03: This court identified three unreviewable powers that the convening authority exercises, including overturning a verdict. [00:05:14] Speaker 04: The ones that are unreviewable are powers to do things favorable to your client, to grant what seems to be the rough equivalent [00:05:28] Speaker 04: the judgment of acquittal, to downgrade a conviction to a lesser included offense, to lower the sentence, but not raise it. [00:05:39] Speaker 03: The error here, if I may, Your Honor, the error here is that the convening authority was improperly appointed, which deprived the Military Commission of jurisdiction. [00:05:47] Speaker 04: The question is whether she's an inferior officer. [00:05:52] Speaker 03: The threat will help you as a superior officer. [00:05:55] Speaker 03: And the problem is that under Arthrex, to the extent an executive agent has the ability to make final unreviewable decisions in favor of a petitioner, in favor of the government, ultimately is irrelevant, so long as that power is unreviewable. [00:06:11] Speaker 03: And if they have the power to make an unreviewable decision, to use Chief Justice Roberts's words, to put something in the books that a superior officer in the executive branch can't erase, [00:06:21] Speaker 03: Well, then that person has to be a principal officer. [00:06:23] Speaker 03: And I don't think there's probably more significant a decision, more unreviewable decision than the ability to overturn a verdict. [00:06:31] Speaker 03: That's what the courts of appeals do. [00:06:32] Speaker 03: And in Arthrex, the very issue is that one of the powers given to administrative patent judges [00:06:37] Speaker 03: was the power to overturn a patent without reviewing the executive branch. [00:06:41] Speaker 03: And if the power to overturn a patent is sufficient to make someone a principal officer, if that decision is not reviewable, then certainly the power to overturn a verdict in a capital case even is sufficient, consequential enough to use this court's language to make that person a principal officer. [00:06:58] Speaker 04: If we accepted your reading of Arthrex, we would then have a question of remedy. [00:07:06] Speaker 04: And Arthrex tells us when we have this sort of problem, which is someone appointed as if an inferior officer is given too many powers to function as an inferior officer. [00:07:22] Speaker 04: Arthrex says we don't blow up the whole scheme. [00:07:26] Speaker 04: We excise the impermissible powers. [00:07:31] Speaker 04: So what we would do is we would either eliminate [00:07:36] Speaker 04: the declare that she didn't have the authority to do all these things favorable to your client, or we would declare that she could do those things and then the secretary of defense could review that. [00:07:50] Speaker 04: But all of that is harmless error because she didn't do any of that anyway. [00:07:57] Speaker 03: Two answers on that, just to buy my mind. [00:07:58] Speaker 03: First of all, the improper appointment of the Convening Authority is jurisdictional error. [00:08:02] Speaker 03: It deprives the Military Commission of jurisdiction. [00:08:05] Speaker 05: That is a two-step thing there. [00:08:07] Speaker 05: You say she has a problem with her jurisdiction and then you say that deprives the Military Commission of jurisdiction. [00:08:16] Speaker 05: If you have [00:08:18] Speaker 05: at a commission that is sworn in and has been de facto appointed before they were sworn in. [00:08:26] Speaker 05: Would they be void? [00:08:27] Speaker 05: Their decision would seem to be voidable if they were. [00:08:31] Speaker 03: It would be void. [00:08:32] Speaker 03: This is a longstanding principle of military law that goes back literally centuries. [00:08:36] Speaker 03: I can provide a court of 28 jail letter with just a list of cases involving the improper appointment of convening authorities, where the improper appointment is incredibly technical oftentimes. [00:08:45] Speaker 03: It's sometimes even as much as the memo didn't specifically give a convening authority general court martial convening authority as opposed to special court martial convening authority. [00:08:53] Speaker 03: So just as a matter of longstanding principle of military law, the committee authority, because everything turns on the committee authority of sole discretion and prerogative from the creation of the court to the finalization of its judgment. [00:09:03] Speaker 03: The improper appointment of a convening authority for any reason is a jurisdictional defect. [00:09:08] Speaker 03: But if I can get, I think, more to the crux of what I think Your Honor's question is, do we have to blow up the whole system? [00:09:13] Speaker 03: Absolutely not. [00:09:14] Speaker 03: For the vast majority of the military commission's history in Guantanamo, the convening authority has been a presidential appointee confirmed by the Senate. [00:09:21] Speaker 03: It's just that in two instances, and we list the convening authorities on page, I think it's 38 of our appendix, [00:09:28] Speaker 03: In two instances, the Secretary of Defense designated essentially SES hires that have been brought into the government as civilian employees hired by the Deputy Secretary of Defense and then designated that individual to be convening authority. [00:09:40] Speaker 03: But if the secretary of defense wanted to be the committee authority, if the deputy secretary of defense wanted to be the committee authority as it was, as a number of other military and civilian officials who haven't been properly appointed wanted to be the committee authority, that's fine. [00:09:51] Speaker 03: There's no reason to touch that issue. [00:09:53] Speaker 03: And just to give you a sense of what the power of the committee authority is all about and how easy this is to comply with, [00:09:59] Speaker 03: Every military officer above the greater lieutenant colonel or commander in the Navy is appointed by the Senate, or appointed by the president, confirmed by the Senate. [00:10:09] Speaker 03: And if you go back in history, as the government often does in these cases, to say who were the committee authorities during World War II, it's Dwight Eisenhower. [00:10:17] Speaker 03: Douglas MacArthur, General Steyer in the Philippines. [00:10:19] Speaker 03: In fact, FDR was the convening authority in the ex parte Kirin case. [00:10:24] Speaker 03: And it wasn't just a pro forma position. [00:10:26] Speaker 03: He actually had the record of trial from Kirin sent to him in Hyde Park so that he could review and ultimately approve it. [00:10:31] Speaker 03: So this is a very, very consequential power. [00:10:34] Speaker 03: And under our directs, it just can't be given to someone who is an interior officer. [00:10:39] Speaker 02: Yes, Your Honor. [00:10:40] Speaker 02: If we can just go back to our threats for a minute, it seems that for us to rule in your favor, we would have to accept your interpretation of our threats. [00:10:48] Speaker 02: Do you say that our threats is completely at odds with the prior ruling on this issue in this case? [00:10:56] Speaker 02: Yes. [00:10:57] Speaker 02: And so you you're saying that. [00:10:59] Speaker 02: Under Arthrex, if the convening authority can exercise final decision-making authority on behalf of the executive branch for anything, not just the things in this case, then that officer has to be a principal officer, not an inferior officer. [00:11:15] Speaker 02: And so I think I agree with Judge Katz that you have some hurdles here because in Arthrex, the Supreme Court applied Edmonds, said it was applying Edmonds, looked at not just that one factor but all three factors, said [00:11:28] Speaker 02: And I quote, we are not setting forth an exclusive criterion for distinguishing between principal and inferior officers, whereas I think you are advocating an exclusive criterion, which is if they can exercise that final decision-making authority. [00:11:47] Speaker 02: And in our threats, [00:11:50] Speaker 02: It wasn't the case that that was the only factor. [00:11:52] Speaker 02: There was also the factor about removability, because in Arthrex that was removability for cause, whereas here it's at will. [00:11:59] Speaker 02: So I think that there are a number of hurdles for us to agree with you that Arthrex must be applied in the way that you are advocating. [00:12:08] Speaker 03: I'd like to respectfully disagree. [00:12:09] Speaker 03: I'm about to cut into my time, though. [00:12:12] Speaker 03: We'll give you time. [00:12:13] Speaker 03: Thank you. [00:12:14] Speaker 03: So, specifically what Arthrox held was that when the power is to make a final decision, a consequential final decision, not just any decision, but consequential decisions, and this court already identified three of those that the community authority makes. [00:12:27] Speaker 03: that when those consequential decisions are unrevealable, that that is a sufficient condition to make an officer, that that is a sufficient condition to make an individual a principal officer. [00:12:37] Speaker 02: So where are the words in Arthrex that specifically say that? [00:12:40] Speaker 03: I would actually go to the part at the end of it. [00:12:42] Speaker 03: It's part two of the court's opinion where it says, we hold. [00:12:46] Speaker 03: And the court says, we hold. [00:12:47] Speaker 03: Now, again, they're talking specifically about the APJs. [00:12:49] Speaker 03: And so some of the language references the powers of the APJs. [00:12:52] Speaker 03: It basically says that the power of the APJs to make final binding decisions [00:12:56] Speaker 03: on behalf of the United States, to bind the executive branch in the application of executive power in a particular way, must be exercised by a principal officer. [00:13:04] Speaker 03: And these individuals were not appointed as principal officers. [00:13:08] Speaker 02: That language was also in Edmund, and it doesn't say that we're excluding the other factors of Edmund. [00:13:13] Speaker 03: No, but again, there are different ways in which there are different reasons someone might be a principal officer. [00:13:19] Speaker 03: If they're an agency head, they might have to be a principal officer, even though they have nothing to do with adjudications. [00:13:23] Speaker 03: Edmund was simply articulating various ways. [00:13:25] Speaker 03: But if I can point to removability, even if you accept that these factors still bear some weight, again, what Arthur says is that removability matters to these. [00:13:34] Speaker 03: And ultimately, Chief Justice Robertson even [00:13:36] Speaker 03: Go that far. [00:13:37] Speaker 03: But he said, even if remobility were to matter, it matters because it allows essentially superior properties within the executive branch to control and direct specific decisions. [00:13:47] Speaker 03: And we know under section 949B, that's the one reason you can't threaten to remove a convening authority or remove a convening authority. [00:13:54] Speaker 03: court is to influence a particular decision. [00:13:56] Speaker 03: This is a longstanding principle called unlawful influence in military law. [00:14:00] Speaker 03: The court appeals for the armed forces decision in United States versus Boyce deals specifically with essentially trying to muscle a convening authority out in order to influence their [00:14:10] Speaker 02: But it's exactly the same as in Edmund. [00:14:12] Speaker 02: That was the same type of removability provision in Edmund as here. [00:14:17] Speaker 03: Absolutely. [00:14:17] Speaker 03: But again, what was important, and this is, I think, about page 665 of Edmund, is where the court says, and this is ultimately what Chief Justice Roberts says was significant about Edmund. [00:14:26] Speaker 03: There was literally no decision that a court of criminal appeals judge could make that was not reviewable by the executive branch, either by virtue of a direct appeal from a power the government does not have with respect to the actions of the convening authority, or to the extent they acted in administrative ways. [00:14:43] Speaker 03: Then things like the judge advocate's supervisory power over their administrative functions allowed them to be under the direct supervision and control of the judge advocate. [00:14:51] Speaker 03: But here, again, I don't think this is an over read, I think this is a fairly straightforward reading of Arthrex, that to the extent the convening authority is given the power to make unreviewable final decisions that are dispositive to new adjudications, this court already held that she has that power, the fact that she might be removable for some other reasons that have nothing to do with her decision, [00:15:11] Speaker 03: Or the fact that she might generally be subject to general administrative supervision is just not sufficient to overcome that exercise of sovereign power that only can be entrusted to principal officers. [00:15:22] Speaker 03: And so to the extent there was, I think, ambiguity that this court relied upon about whether or not these three factors essentially offset each other and can work together so that someone with unreviewable authority can be an inferior officer so long as they might be removable. [00:15:38] Speaker 03: To the extent that removability affected their decisions and could be used to defect the decisions, perhaps that's still good law. [00:15:44] Speaker 03: But Arthur says ultimately it's the decision, not the decision maker that must be supervised, because that ensures that the executive branch is accountable for the decisions executive officers are making. [00:15:52] Speaker 03: Again, I just point to the significance of being able to overturn a verdict. [00:15:56] Speaker 03: The convening authority could overturn the verdict in the September 11th case. [00:16:00] Speaker 03: The September 11th case doesn't warrant the death penalty. [00:16:02] Speaker 02: No, I understand all that and I understand your position, but I'm still not convinced that Arthrex elevates the finality of decision-making over all the other elements and to the exclusion of those other elements. [00:16:14] Speaker 02: And it has to be read in the way that you are advocating. [00:16:17] Speaker 02: We would have to hold that Arthrex must be read in the way that you are advocating. [00:16:21] Speaker 02: in order to rule in your favor. [00:16:23] Speaker 02: Even if it's not clear that, even if it's not clear that they're ruling that way, I don't think we can rule in your favor. [00:16:29] Speaker 03: I disagree just on two points. [00:16:31] Speaker 03: One is all this board has to hold is that Arthrex clarified that when it's adjudicative powers being exercised by executive branch officials, there must be some kind of view. [00:16:40] Speaker 02: Right, we'd have to rule, we would have to interpret Arthrex the way you're interpreting it in order to rule in your favor. [00:16:46] Speaker 02: And even if we think that it's not clear whether Arthrex says that or not, we don't rule in your favor. [00:16:50] Speaker 03: I disagree on law of the case grounds, because, again, law of the case can't be substituted for law of the land. [00:16:56] Speaker 03: And the real question is, would this court have a valid? [00:16:58] Speaker 04: It's the law of the circuit grounds, though. [00:17:00] Speaker 04: We have a holding that she was permissibly appointed as an inferior officer. [00:17:07] Speaker 03: So there are two solutions to that. [00:17:08] Speaker 03: One would just be seeking an iron's footnote to just recognize that authorities changed the law on how the appointments plus applies in these kinds of contexts. [00:17:16] Speaker 03: But more specifically, in a law of the case situation, [00:17:20] Speaker 03: The fact that an intervening Supreme Court decision changes the foundation of the court's ruling. [00:17:25] Speaker 03: In that case, we're still on direct appeal. [00:17:27] Speaker 03: This isn't a collateral attack. [00:17:28] Speaker 03: This is not a different defendant. [00:17:30] Speaker 03: We're still on direct appeal. [00:17:31] Speaker 03: To the extent that a Supreme Court decision undermines the rationale that this court used to reach a particular conclusion, law of the case must yield to the law of the Supreme Court. [00:17:42] Speaker 04: But if we have a decision that's directly on point, and there's a later Supreme Court decision that [00:17:50] Speaker 04: might or might not impact things. [00:17:53] Speaker 04: We don't just apply the Supreme Court decision de novo. [00:17:58] Speaker 04: We ask, is there sufficient basis for us to not follow one of our precedents? [00:18:06] Speaker 04: And I think what [00:18:10] Speaker 04: Judge Pan was getting at, and I suggested earlier, is we have to find more than just a litigable issue about how Arthrex is best read. [00:18:19] Speaker 03: Sure. [00:18:19] Speaker 03: We think this is pretty straightforward. [00:18:21] Speaker 03: We think our case is really on all fours with Arthrex. [00:18:24] Speaker 02: So if we disagree, you lose? [00:18:26] Speaker 03: Well, no, but even if you disagree, again, law of the case principles do have to yield. [00:18:30] Speaker 03: I think the best case on this, just in terms of sort of a similar situation, was the decision from then Judge Korsich [00:18:37] Speaker 03: On the 10th circuit, the case of the United States v. McKay, we can provide a citation to the court in a 20-day jailer. [00:18:43] Speaker 03: But there, a defendant had essentially challenged the sufficiency of the evidence grounds whether or not their drug trafficking had resulted in death. [00:18:51] Speaker 03: That argument was rejected, but for all different reasons, the case had been remanded for re-sentencing. [00:18:56] Speaker 03: While that case is pending on re-sentencing, the Supreme Court decided verge, which significantly narrowed what it means to result in death. [00:19:04] Speaker 03: And the Justice Court just said, no, the law of the case has to yield to the law of the land. [00:19:08] Speaker 03: We have to apply the new standard governing when, in that case, something— I don't think we're disagreeing with you that the law of the case yields to the law of the land. [00:19:16] Speaker 02: I think that we have a dispute about what the law of the land is and whether it clearly has changed. [00:19:22] Speaker 02: And unless we squarely agree with you that it has changed in the way that you say, I don't think we can rule in your favor. [00:19:29] Speaker 03: So I would say the best evidence that it has squarely changed, and certainly in the way we say it squarely changed at all, is the fact that Arthrex itself applies this court law. [00:19:37] Speaker 03: It's a federal circuit decision. [00:19:39] Speaker 03: But it relies upon this circuit's precedent involving essentially the three factors from it and how they can interbalance each other. [00:19:45] Speaker 03: And there the federal circuit said, OK, if we just remove any restrictions on removability generally, [00:19:49] Speaker 03: that will solve the problem. [00:19:51] Speaker 03: That was the case that ultimately went up to the Supreme Court to be decided as artifacts, and the government made the very same arguments that it's making here about all three factors taken together, the fact that removability should be sufficient as a remedy, and that was rejected by the Supreme Court. [00:20:05] Speaker 03: And in fact, if anything, the Supreme Court, I think, threw some shade at things like removability or at least what Chief Justice Roberts called them, the machinations that actually blur the lines of accountability as opposed to just get to the heart of the matter. [00:20:18] Speaker 03: That if someone can make a decision that binds the executive branch, their superiors in the executive branch can't claim that their hands are tied unless that person's a principal officer. [00:20:28] Speaker 03: And that's precisely what the community authority can do here. [00:20:32] Speaker 04: If there are no further questions... Do you want to take some time on the sentencing issues? [00:20:36] Speaker 03: Yes, just to reiterate, I think the fact that there were three novel charges in a novel criminal justice system, the central charge which was thrown out by this court because it was not a crime, is more than sufficient to warrant a routine re-sentencing hearing. [00:20:50] Speaker 03: What charge, what crime exactly was he being sentenced for? [00:20:54] Speaker 03: So he was sentenced for conspiracy charge solicitation, which is what the government described as its central charge in the prosecution. [00:21:03] Speaker 05: It was a conspiracy that resulted. [00:21:06] Speaker 05: in the death of thousands of people, right? [00:21:09] Speaker 03: That's not correct, no. [00:21:10] Speaker 03: He was never charged with 9-11 or with any kind of responsibility for 9-11. [00:21:14] Speaker 03: And in fact, the government, in a pre-trial proceeding, unilaterally, Suiz Ponte moved to have language from the conspiracy charge saying that he engaged an enterprise of persons for the commission, excuse me, of a terrorist attack. [00:21:27] Speaker 03: They moved to have that taken out of the charge sheet in order to, as they described it, lessen the offense. [00:21:34] Speaker 05: And so in any event, right now, we're deciding whether the mission with the review court aired in saying that it could be sure of what the commission would have sentenced to. [00:21:47] Speaker 05: They sent it back to the commission. [00:21:49] Speaker 05: That's essentially what we're deciding. [00:21:51] Speaker 05: Yes, it's basically if you're saying this is too harsh a penalty, which fit in your briefs, [00:21:56] Speaker 05: You're saying this is too harsh a penalty. [00:21:58] Speaker 05: What do you think an appropriate penalty would be for being a part of the conspiracy that he was proven to be part of? [00:22:05] Speaker 03: Well, I don't know precisely what that would be. [00:22:07] Speaker 05: That's the black box. [00:22:08] Speaker 05: You're saying this one's too harsh. [00:22:10] Speaker 05: If you're brief and accurately reflecting your argument on this, you must have some idea what would not be too harsh. [00:22:17] Speaker 05: What would be an appropriate sentence, counsel, for what he did? [00:22:20] Speaker 03: So the, all I can say is this is precisely why we have juries, but I would say look at the other sentences imposed by military juries in military commissions. [00:22:29] Speaker 03: There's not a single life sentence, including in cases involving an individual who is directly a participant in the bombing of nightclubs in Indonesia. [00:22:37] Speaker 03: The sentencing ranges in the military commissions have ranged eight from six months in the case of Hamdan to about 24 years in the case of [00:22:47] Speaker 03: who is the individual responsible for the nightclub bombing. [00:22:50] Speaker 03: A lot of those cases also. [00:22:52] Speaker 05: You don't have an answer to my question of what would be an appropriate sentence of this or what a commission might have done that would have been appropriate. [00:22:59] Speaker 03: Well, I'm not going to speculate because Chapman tells us not to speculate. [00:23:02] Speaker 03: We have to be certain beyond a reasonable doubt what the members would have done, what the military jury would have done. [00:23:07] Speaker 02: And if I may counsel, what is really striking to me about this resentencing is the existence of this findings worksheet, which you don't see. [00:23:17] Speaker 02: I've never seen before in a criminal case in which the jury [00:23:23] Speaker 02: or the military commission, specifically checked off the objects of the conspiracy and the overt acts and found this petition of guilty of murder of protected persons, attacking civilians, attacking civilian objects, murder in the violation of the law of war, destruction of property in violating the law of war, terrorism, [00:23:48] Speaker 02: providing material support for terrorism. [00:23:51] Speaker 02: And these are the exact same objects and also a bunch of overt acts as well. [00:23:56] Speaker 02: But they checked off the exact same things with respect to the two convictions that were vacated. [00:24:02] Speaker 02: And so it seems to me that this is as strong a record as you can have that the vacator of the two other convictions didn't affect the sentencing because the jury has checked off the findings that it relied upon to impose the sentence. [00:24:15] Speaker 02: And they're the same as the ones that were vacated. [00:24:17] Speaker 03: Well, I think if anything that compromises the integrity of the jury, precisely because we don't know if the jury put a particular weight on the government's central charge, which was the solicitation charge, which it built its entire merits. [00:24:30] Speaker 02: But you're assuming that juries put weight on charges and not facts? [00:24:33] Speaker 02: I mean, the facts are the same. [00:24:35] Speaker 02: The evidence and the facts are the same. [00:24:36] Speaker 02: I mean, in my experience as a prosecutor, I don't remember a jury ever thinking about the charges versus the facts or the evidence. [00:24:43] Speaker 03: The United States versus Tucker, there the fact that the individual had been, the prior convictions had been vacated was sufficient to require re-sentencing in the subsequent prosecution where the fact that the individual had been charged and convicted of multiple crimes was in fact sufficient basis to at least cast doubt on the ultimate verdict. [00:25:01] Speaker 02: It sort of depends on the facts of each case. [00:25:04] Speaker 02: And in this particular case, we have a worksheet that says the jury relied on the exact same overt acts and objects of the conspiracy. [00:25:13] Speaker 03: We're not saying that the finding of guilt is compromised by the vacator of the two charges. [00:25:18] Speaker 03: We're simply saying that when the government literally only mentions the conspiracy charge twice during the entirety of the sentencing hearing, [00:25:25] Speaker 03: and then only to emphasize that Mr. Alvolo has been convicted of multiple charges. [00:25:30] Speaker 03: When his entire theory of sentencing, and this is almost a direct quote, was that he made an ongoing solicitation that the members should sentence him to life so that he makes no more, then I'm forced to speculate about what the members would have done had the government brought a conspiracy prosecution, a single conspiracy prosecution, and attempted to establish Mr. Alvolo's [00:25:52] Speaker 04: I mean, except that the ongoing solicitations are overt acts in furtherance of the conspiracy. [00:26:01] Speaker 03: Right, but those are not criminal acts. [00:26:02] Speaker 03: Remember, an overt act is evidence of the conspiracy. [00:26:06] Speaker 03: The culpable conduct in a conspiracy is joining with others to commit crimes. [00:26:10] Speaker 03: And this specific conspiracy, I understand the charges are incredibly grave. [00:26:13] Speaker 03: But that's also true of all of the other conspiracies where the sentences have been far more disparate, and certainly nothing like a life sentence here. [00:26:19] Speaker 03: It's a fairly boilerplate charge, frankly, in Guantanamo. [00:26:23] Speaker 03: But again, the question is, do those overdacts prove his culpability for the conspiracy, or do those overdacts prove his culpability for solicitation? [00:26:30] Speaker 03: And the government made a very, very compelling, strong case that they established his culpability for solicitation. [00:26:36] Speaker 03: And then this court held that that conduct is not criminal. [00:26:38] Speaker 03: And so to the extent the government wants to. [00:26:40] Speaker 04: Sorry, I'm not tracking. [00:26:43] Speaker 04: Solicitation is an inchoate offense in the way conspiracy is, right? [00:26:48] Speaker 04: It's not just soliciting in the air. [00:26:52] Speaker 04: It's soliciting to commit a crime, just inspiring to commit a crime. [00:26:57] Speaker 04: So the object of the solicitation [00:27:00] Speaker 04: has to be criminal, no less than the object of the conspiracy, right? [00:27:04] Speaker 03: Right. [00:27:05] Speaker 03: But the conduct of solicitation is not criminal. [00:27:08] Speaker 03: And maybe I just wasn't speaking clearly. [00:27:10] Speaker 03: Maybe I missed it. [00:27:11] Speaker 03: Sure. [00:27:12] Speaker 03: So just because he's a bad guy, it's not a sufficient reason to sentence him to life imprisonment. [00:27:17] Speaker 03: He has to be sentenced on the basis of his culpable criminal conduct. [00:27:21] Speaker 03: And it's just as if he was [00:27:24] Speaker 03: an alcoholic or wasn't nice to his mother. [00:27:27] Speaker 03: Those are not facts that are relevant in sentencing just as the fact that he solicited members of al-Qaeda is not a relevant fact to the proof of a conspiracy charge. [00:27:34] Speaker 02: I'm sorry, it seems to me that in sentencing [00:27:37] Speaker 02: we take a broad view of what's relevant in terms of choosing an appropriate sentence. [00:27:43] Speaker 02: And the evidence that underlay the solicitation charge is still admissible as evidence in sentencing on a conspiracy charge. [00:27:53] Speaker 02: And there was a box checked on the findings worksheet that this defendant prepared and assisted in the preparation of various propaganda products. [00:28:00] Speaker 02: This is the solicitation. [00:28:02] Speaker 02: So the same evidence that the government relied upon to convict [00:28:08] Speaker 02: the petitioner of solicitation is still in the game. [00:28:12] Speaker 02: It still can be considered in choosing a sentence for a conspiracy. [00:28:19] Speaker 02: And it seems to me that because we have this findings worksheet, the jury checked off that evidence and could still properly consider it. [00:28:30] Speaker 02: And it seems to me that that's really difficult for you to overcome because that same evidence is still [00:28:38] Speaker 02: allowed to be considered, and it was considered, or it can be considered in the analysis of whether, beyond a reasonable doubt, the vacator of those other two convictions, whether it affected this sentence. [00:28:52] Speaker 02: Where you have a set of evidence and facts, three different charges too are vacated, but all the evidence is still in play, it seems to me difficult to say that [00:29:04] Speaker 02: The commission was not able to see that, was not able to properly consider that, and was not able to properly find beyond a reasonable doubt that the vacator of the two other convictions didn't affect the sentencing on the one. [00:29:17] Speaker 03: I understand the intuition, particularly given this court's experience with the federal sentencing guidelines, because federal sentencing is very transparent. [00:29:25] Speaker 03: obtains an individual sentence and so um and it's simply done by formula by the sentencing commission here it's the essentially just the discretion of the military jury and for that reason there are actually stricter rules with respect to sentencing evidence that go to the culpability of the accused in the military commission context precisely because we don't know ultimately why or how a military jury makes a decision to [00:29:51] Speaker 03: months in another case of life imprisonment. [00:29:53] Speaker 03: And so just on the admissibility question you raised, that's actually just a different rule that applies here. [00:29:59] Speaker 02: So can you explain this findings worksheet, how that would play into sentencing? [00:30:04] Speaker 02: This is sort of, I think, an unusual insight into what the military jury was thinking about. [00:30:11] Speaker 03: Well, it's that they found him guilty, and we don't dispute that they found him guilty of these particular facts. [00:30:16] Speaker 03: The question is what relevance, and this again is my second point, the relevance of those facts in his ultimate sense and whether or not it's [00:30:24] Speaker 02: And you think that a military jury would give more weight to evidence based on the charges that are before them versus just looking at the evidence and deciding what evidence is most relevant and probative? [00:30:37] Speaker 03: Well, we have to assume that military juries, just like regular juries, follow the instructions that they're given when they're told to sentence an individual for three charges instead of one, and they're told to sentence him to life by the prosecutor so that he makes no more solicitations. [00:30:50] Speaker 03: We have to assume that that had an impact on the military jury. [00:30:53] Speaker 03: I think both of the sentencing witnesses in this case would not have been honest. [00:30:56] Speaker 05: But you compared to federal sentencing. [00:30:58] Speaker 05: It's been upheld that federal sentencing can consider not only unproven but uncharged conduct, Rob. [00:31:07] Speaker 05: It's not part of the principal crime. [00:31:09] Speaker 03: As long as that's criminal conduct. [00:31:14] Speaker 05: And here, the real issue is that... I don't think that's necessarily the strength you're involved [00:31:20] Speaker 05: Well, I know they're wrongful conduct can be considered in the federal Senate. [00:31:25] Speaker 05: If it is criminal wrongful conduct. [00:31:29] Speaker 05: I carefully worded that to answer what you had just said. [00:31:32] Speaker 05: I can't have to be criminal conduct to be considered. [00:31:37] Speaker 03: But you can't punish them on the basis of criminal conduct. [00:31:40] Speaker 05: There have to be criminal conduct. [00:31:41] Speaker 03: A lot of circuits that have held that squarely. [00:31:44] Speaker 03: So I do think, yes, I do think it must be at least criminal in some context, even if it's unproven. [00:31:50] Speaker 05: Can you tell us for anybody if it's Presley Hill or we've been Presley Hill? [00:31:56] Speaker 03: Wrongful if not necessarily charged content. [00:31:59] Speaker 03: You can't sentence someone to a more severe sentence because they're a white supremacist or because they're an alcoholic or because they didn't, you know. [00:32:06] Speaker 05: I understand you can't use those. [00:32:07] Speaker 05: That's wrong. [00:32:08] Speaker 05: All of that would be wrong. [00:32:09] Speaker 05: Yeah, I understand you can't use those specifics, but aren't there cases that say wrongful conduct as opposed to saying criminal conduct? [00:32:15] Speaker 03: But I do believe those cases say that the wrongful conduct has to be at least culpable and criminally culpable in terms of [00:32:21] Speaker 03: Warranty. [00:32:22] Speaker 03: Can you give us the cases? [00:32:24] Speaker 03: Yes, we provided a string side of those cases in our library so I can get the page for you on rebuttal. [00:32:29] Speaker 03: That would be helpful. [00:32:30] Speaker 03: But ultimately, if I just might put the second point, Your Honor, I know I've done vastly over my time, and I appreciate that. [00:32:36] Speaker 03: But to the extent there are facts in the record that might ultimately support the sentence, that shows that this case fails under Chapman. [00:32:41] Speaker 03: Because the one thing we also know the government can't do is shoehorn various facts to do a theory of culpability that is not presented to the members. [00:32:48] Speaker 03: That's the Supreme Court's decision in Chiarella, the military justice counterpart to that is the case of the United States versus Swift. [00:32:56] Speaker 03: And under either circumstance, that's not an appropriate use of appellate authority, certainly. [00:33:00] Speaker 03: Okay. [00:33:03] Speaker 04: Thanks very much. [00:33:05] Speaker 04: We'll give you time on rebuttal. [00:33:07] Speaker 04: Thank you very much. [00:33:12] Speaker 04: Ms. [00:33:12] Speaker 04: Taryn? [00:33:15] Speaker 01: May I please record? [00:33:17] Speaker 01: Your honor, a case that you could look to is the Winkleman case to support the proposition that even where evictions have been vacated, [00:33:27] Speaker 01: that the reassessing and reviewing court can consider all of the conduct in the record of trial where the remaining conviction is predicated on the same conduct as the vacated conviction. [00:33:38] Speaker 01: And that's a court of appeals for the Armed Forces case. [00:33:42] Speaker 01: This court reviews the CMCR's decision to reassess and reaffirm the sentence for an abusive discretion. [00:33:48] Speaker 01: So this court could reverse if it concluded that the CMCR applied- We review the threshold [00:33:57] Speaker 04: decision to reassess under Winkleman for abuse of discretion. [00:34:01] Speaker 04: We've already decided that. [00:34:03] Speaker 01: Exactly. [00:34:04] Speaker 04: The question of the Chapman determination, that has to be de novo. [00:34:10] Speaker 01: The question of once the CMDR reassesses the sentence. [00:34:17] Speaker 04: Whether the record shows beyond a reasonable doubt that the error was harmless. [00:34:23] Speaker 04: We would be that, Dana. [00:34:25] Speaker 01: And the CNCR applied the proper harmless air standard of review. [00:34:28] Speaker 01: The CNCR explicitly determined beyond reasonable doubt that the panel of military commission members would have imposed a sentence of life imprisonment even absent the constitutional errors. [00:34:40] Speaker 01: And it also explicitly determined beyond a reasonable doubt that its reassessment rendered harmless any of the errors affecting the sentence. [00:34:48] Speaker 01: And the CMCR explained, as this court has previously recognized, that the remaining conviction for conspiracy to commit war crimes was predicated on the same conduct as the vacated convictions. [00:34:59] Speaker 01: And the panel of military commission members specifically found that as overt acts to the conspiracy in which Bolo personally participated, that he was a personal secretary for public relations for Bin Laden, that he pledged an oath of loyalty to Bin Laden, that he also arranged similar oaths for two of the 9-11 hijackers, that he transcribed to the pilot hijackers' martyr wills. [00:35:21] Speaker 01: And they also prepared these propaganda products, including the USS Cole video, in order to recruit others to join al-Qaeda. [00:35:29] Speaker 01: and in order to recruit others to provide additional material support to Al Qaeda. [00:35:33] Speaker 01: The CMC also recognized that although Balul didn't plead guilty at trial, at trial he did concede that he committed all of the charge conduct except for wearing a suicide belt. [00:35:44] Speaker 01: And in his allocation at the initial sentencing, [00:35:47] Speaker 01: He proudly boasted that his contributions to the conspiracy to commit murder with Osama Bin Laden that culminated in the September 11 terrorist attacks were so valuable that Bin Laden would not permit him to join the 9-11 hijackers. [00:36:02] Speaker 01: So we think that the CNCR did not abuse its discretion in reaffirming the sentence of life imprisonment, and we ask this court to affirm that decision. [00:36:11] Speaker 01: With regard to the remaining question about the convening authority, we think that there are [00:36:16] Speaker 01: to distinguishing factors between the convening authority in this case and the administrative judges in our threats. [00:36:25] Speaker 01: And the convening authority, unlike the administrative patent judges, the [00:36:30] Speaker 01: the bulk of his or her decisions are reviewed by the CMCR. [00:36:34] Speaker 01: And just like the Supreme Court acknowledged in Edmund, the Court of Appeals for the Armed Forces reviews the decisions of the judges and the Coast Guard Criminal Court of Appeals. [00:36:43] Speaker 01: And then in Edmund, what the Supreme Court found significant, if not dispositive there, was that the judges couldn't render a final decision on behalf of the United States unless a superior executive officer could permit them to do so, like you, [00:36:58] Speaker 01: explain your honor with respect to the removable provisions. [00:37:02] Speaker 01: And unlike the statutory scheme in Arthrex where the PTO director can initiate inter-partice review but can't actually adjudicate the proceedings himself, here the Secretary of Defense doesn't have to designate a convening authority at all. [00:37:17] Speaker 01: Instead, he can decide to fulfill that role himself. [00:37:21] Speaker 04: The decisions that are unreviewable [00:37:26] Speaker 04: They're unreviewable only if she rules in one direction. [00:37:31] Speaker 04: If she grants an acquittal or reduces a sentence. [00:37:36] Speaker 04: And I had thought that was a very good fact for you. [00:37:41] Speaker 04: But if we think of the appointment's clause as not only separation of powers in order to secure individual liberty, [00:37:54] Speaker 04: but also creating lines of political accountability. [00:38:00] Speaker 04: That concern is present regardless of whether the ruling can help hurt the defendant. [00:38:07] Speaker 04: So why doesn't that at least move the needle a little bit against the government? [00:38:13] Speaker 01: Because as this court explained already in bubble four, the superior executive officer doesn't have to exercise total control. [00:38:21] Speaker 04: Sorry, doesn't. [00:38:22] Speaker 01: Does not have to exercise total control over the inferior officer to qualify as an inferior officer. [00:38:28] Speaker 01: And so just like an admin where the judge evicted general could was still subject to unlawful command influence provisions and couldn't reverse the decisions of the judges. [00:38:39] Speaker 01: And even though the Court of Appeals for the Armed Forces could reverse the decisions of the judges, but its review was limited only to matters of law, the Supreme Court still explained in Edmund that that was sufficient to render the judges inferior officers. [00:38:54] Speaker 01: And we think that this court's decision in below four flowed directly from Edmund and in this much more analogous context in the military justice system. [00:39:03] Speaker 01: And we don't think that anything in Arthrex called this court's decision into question. [00:39:15] Speaker 06: Thank you. [00:39:16] Speaker 06: Thank you. [00:39:17] Speaker 03: I thank you for the additional time. [00:39:27] Speaker 03: Just a very few points. [00:39:28] Speaker 03: In response to your question before Judge Sentel, we put the screen site at reply brief, page 26 to 27, where culpable conduct must be criminally culpable, not just [00:39:39] Speaker 03: bad in some general way. [00:39:41] Speaker 03: I do want to emphasize two points here. [00:39:44] Speaker 04: It is black letter law. [00:39:48] Speaker 04: Sentencing courts, at least in the civilian context, sentencing courts have broad discretion to consider any facts that are relevant to the culpability, the offense or gravity of the offense or the offense. [00:40:05] Speaker 03: Absolutely. [00:40:06] Speaker 03: And that's all we're asking for is an actual correct interpretation of the law and the facts put before a military jury so that they can exercise their discretion to determine whether or not Mr. Alvool should be sentenced to life, indeed, life without parole. [00:40:20] Speaker 03: It's, I think, that simple. [00:40:21] Speaker 03: It's a routine. [00:40:22] Speaker 03: A resending hearing is a pretty routine exercise. [00:40:24] Speaker 03: And why we're fighting it is not entirely clear. [00:40:27] Speaker 03: More specifically to a couple of points from Your Honor's questions dealing with the Appointments Clause. [00:40:34] Speaker 03: The explicit quote, the quote I was referring to before, Judge Mann as well, is the Supreme Court said that a, excuse me, I just lost the thread on that. [00:40:45] Speaker 03: Oh, yes, sorry. [00:40:46] Speaker 03: The unreviewable authority to bind the executive branch is, quote, incompatible with an officer's appointment to an inferior office. [00:40:57] Speaker 03: The question with respect to standing. [00:40:59] Speaker 02: That's a far cry from saying this is the only thing we're looking at. [00:41:03] Speaker 02: There's two other factors under Edmund. [00:41:05] Speaker 02: And what you just quoted doesn't say that we look only to this finality factor and don't even look anymore to the other two. [00:41:12] Speaker 03: You can look to those factors and we're not saying don't look to them. [00:41:15] Speaker 03: We're just simply saying that those factors must go to the reviewability of a particular decision. [00:41:21] Speaker 02: I'm just saying incompatible. [00:41:22] Speaker 02: That's not very strong language. [00:41:24] Speaker 02: That's completely consistent with what the court said in Edmund. [00:41:26] Speaker 03: It is completely consistent with what the court held in Edmond, just not what this court held in saying that total control was not required, because what the Supreme Court says in our artifacts is that when it comes to a decision that binds the executive branch, control of that decision is what is required. [00:41:40] Speaker 02: So are you saying our prior decision was wrong under Edmond? [00:41:43] Speaker 03: Well, under the Supreme Court's, I think, revised interpretation of Edmund in Arthrex. [00:41:48] Speaker 03: Again, the Supreme Court clarified that Edmund treated the unreviewability of the decision as a positive sufficient factor to make someone a principal officer if their decision. [00:41:58] Speaker 02: But procedurally, where we are is that it has to be that Arthrex changed the law under Edmund, making our prior holding erroneous. [00:42:10] Speaker 03: and our subsequent cases, which created this multi-factor balancing test. [00:42:14] Speaker 03: And the key in Arthrox is that the multi-factor balancing test is just no longer good law. [00:42:19] Speaker 03: Edmund is still good law, but the multi-factor balancing test that this court had developed is not. [00:42:24] Speaker 03: And if I could answer your honest question, or just about standing, I think even in the due process context, cases like that in Powers versus Ohio do implicate situations where a defendant has the ability to object to the unconstitutional creation of the decision-making process [00:42:40] Speaker 03: process that is ultimately going to lead to their conviction, even if like in powers, the defendant was white, you know, has no, I think it was even a white supremacist, um, has no sort of substantial, uh, right. [00:42:52] Speaker 03: Sorry. [00:42:52] Speaker 04: How is that? [00:42:53] Speaker 04: That's a third party standing question. [00:42:56] Speaker 04: How is that relevant to this case? [00:42:58] Speaker 03: Well, I was just sort of pointing out situations where even if it's not benefit, if the young constitutionality of the trial process does, you know, create. [00:43:07] Speaker 04: No, no, no. [00:43:07] Speaker 04: The discrimination challenged those cases harms the defendant. [00:43:13] Speaker 04: It's the problem is it's directed at the jury. [00:43:15] Speaker 03: So, you know, theory. [00:43:17] Speaker 03: But the only reason it harms the defendant is because it makes the decision-making process unconstitutional. [00:43:22] Speaker 03: For the same reason, the defendant can't use peremptory strikes in a discriminatory manner. [00:43:27] Speaker 03: And even if it's a white supremacist defendant, the government can't use peremptory strikes in a discriminatory manner. [00:43:33] Speaker 03: So that was really the only point I was making. [00:43:35] Speaker 03: But again, I do think the accountability point is ultimately the crucial one. [00:43:39] Speaker 03: The convening authority is able to act, do things as significant as remove the death penalty in the 9-11 case. [00:43:45] Speaker 03: Both the Secretary of Defense and the President can say, we had nothing to do with it. [00:43:49] Speaker 03: Our hands are tied. [00:43:49] Speaker 03: And I think that's a significant decision, an important decision, and it should be entrusted to a principal officer. [00:43:53] Speaker 03: Thank you. [00:43:53] Speaker 04: I understand. [00:43:54] Speaker 04: Any other questions? [00:43:56] Speaker 04: Thank you very much. [00:43:57] Speaker 04: The case is submitted.