PUBLISHED OPINION OF THE COURT

PER CURIAM.

   I. STATEMENT OF FACTS ..................................................... 1254

  II. CHARGE AND SPECIFICATIONS WITH GUILTY FINDINGS ......................... 1258

 III. PROCEDURAL HISTORY ..................................................... 1259

  IV. ISSUES ................................................................. 1260

   V. MILITARY COMMISSION PROCEDURES ......................................... 1260

  VI. STANDARD OF REVIEW ..................................................... 1263

VII. PROVIDING MATERIAL SUPPORT FOR TERRORISM AS A LAW OF
      WAR OFFENSE ............................................................ 1264
    A. Authority to Define Law of War Offenses ............................... 1264
       1. War Powers ......................................................... 1264
       2. Foreign Affairs .................................................... 1267

    B. Defining Terrorism and Providing Material Support for Terrorism ....... 1270
       1. U.S. Domestic Terrorism Offenses—Title ....................... 1270
       2. Congressional Finding that Providing Material Support for
            Terrorism is a Traditional Law of War Offense .................... 1273
       3. The M.C.A. and Providing Material Support for Terrorism ............ 1274
       4. M.M.C.'s List of Elements for Appellant's Specifications ........... 1275
       5. Criminal Intent and Wrongfulness ................................... 1276
       6. Findings of the Military Commission Judge .......................... 1279
    C. Criminalization of Analogous Global Conduct ........................... 1279
       1. International Conventions and Declarations ......................... 1280
       2. International Criminal Tribunals ................................... 1284
       3. Non-United States Domestic Terrorism Laws .......................... 1288
    D. Prosecutions for Wrongfully Providing Aid or Support to the Enemy ..... 1292
       1. Contents of Specifications ......................................... 1293
       2. 19th Century Irregular Warfare and Aiding the Enemy ................ 1294
       3. The Philippine-American War, 1899-1902 ............................. 1303
       4. World War II Era ................................................... 1304
       5. Army 1914 and 1956 Manuals ......................................... 1309
    E. Ex Post Facto ............................................................... 1310
    F. Conclusion ............................................................ 1312

VIII. EQUAL PROTECTION ....................................................... 1313
    A. Jurisdiction of Article I Courts ...................................... 1314
    B. Due Process ........................................................... 1315
    C. Boumediene and Equal Protection under the Fifth Amendment .... 1316
    D. The 2006 M.C.A. and the Equal Protection Component of the Due
        Process Clause of the Fifth and Fourteenth Amendments ................ 1319
    E. Legal Test ............................................................ 1320
    F. Application of Rational Basis Review .................................. 1322

IX. CONCLUSION ............................................................... 1322

Appellant was convicted, contrary to his pleas, of five specifications of providing material support for terrorism, in violation of the Military Commissions Act of 2006, 10 U.S.C. § 950v(b)(25), at a military commission convened at U.S. Naval Station, Guantanamo Bay, Cuba. The military commission sentenced him to 66 months confinement, and the convening authority approved the findings and sentence. Under our review authority,2 we have carefully considered the record and the various pleadings, briefs, and oral arguments of the parties and amici. We find appellant's assignments of error and pleadings, to include his filing on granted issues,3 to be without merit, and we affirm the findings and sentence.

I. STATEMENT OF FACTS

The record establishes and the military commission found that appellant joined and became a member of al Qaeda, a well-established terrorist organization, with the knowledge that al Qaeda has engaged in and engages in terrorism. He had the intent to join in al Qaeda's purposes, and he subsequently took actions to further al Qaeda's goals and purposes.4

As early as 1989, Usama bin Laden associated with al Qaeda's Shura Counsel, especially the leader of the Egyptian Islamic Jihad Movement, Dr. Ayman al-Zawahiri, and Omar Abdel Rahman, the Blind Shaykh. Rahman was "the joint spiritual leader of the two leading terrorist organizations in Egypt, the Islamic Jihad and Al-Gama'at al-Islamiyya."5 Al Qaeda, a military organization, has been involved in various violent activities directed against U.S. civilian and military personnel since at least 1991. "In December 1991, Islamic militants launched a failed bomb attack at a hotel in Aden, Yemen targeting 100 U.S. soldiers who were staying there en route to peacekeeping duties in nearby Somalia." The 1991 Aden bombing, which killed two tourists, was "in response to a `fatwah,' or religious edict, issued on behalf of [al-Qaeda] in late 1991—which condemned the presence of U.S. military peacekeepers as an attempt to colonize the Muslim world."

In late 1992, bin Laden led meetings of terrorists at al Qaeda guesthouses in Khartoum, Sudan. Al Banshiri, al Qaeda's chief military commander, told al Qaeda members that al Qaeda hoped the United States would become involved in the civil war in Somalia so "that we make a big war with them." Bin Laden announced to 30-40 al Qaeda members in late 1993 that "the American army now they came to the Horn of Africa, and we have to stop the head of the snake . . . the snake is America, and we have to stop them. We have to cut the head and stop them." In 1993, al Qaeda's leaders sent al Qaeda Shura Council member Mohammed Atef (a.k.a. Abu Hafs al Masri) to Somalia to organize and train for an attack upon U.S. forces. In October 1993, Somali militiamen used rocket-propelled grenades to shoot down two U.S. Blackhawk helicopters over Mogadishu. Eighteen U.S. military personnel and numerous militiamen were killed in the ensuing street battle. Shortly thereafter, Abu Hafs spoke with al Qaeda members in the Sudan and stated, "everything happening in Somalia, it's our responsibility. . . the al Qaeda group, our group."

In January 1996, Rahman was convicted in U.S. federal court of conspiracy for inspiring the February 1993 bombing of the World Trade Center. United States v. Rahman, 189 F.3d 88, 103 (2d Cir.1999). In early 1996, Mohammed bin Attash, a close associate of bin Laden, convinced appellant that he should go from his home in Yemen to Tajikistan for Jihad. Bin Attash gave appellant a false passport and an airline ticket to fly from Yemen to Pakistan. Appellant stayed in guest houses in Pakistan, and then he went to Afghanistan. Once in Afghanistan, appellant spent 30-40 days at Al Farouq, an al Qaeda training camp. While there, appellant received training on a variety of weapons, including AK-47s, machine guns, pistols, and rockets. After training, appellant became a driver for an al Qaeda guest house where he ferried people and supplies between Al Farouq and the guest houses. Shortly thereafter, appellant was introduced to bin Laden, gained his trust, and became a primary driver for him. Appellant was trained on convoy techniques and standard operating procedures to engage in if one of bin Laden's compounds came under attack. In addition to serving as bin Laden's driver, appellant also served as his bodyguard. All bodyguards and drivers were armed.

During this period as bin Laden's personal driver and bodyguard, appellant pledged bayat, or "unquestioned allegiance" to bin Laden. The bayat extended to bin Laden's campaign to conduct jihad against Jews and crusaders and to liberate the Arabian Peninsula from infidels; however, appellant reserved the right to withdraw his bayat if bin Laden undertook a mission with which he did not agree. The record does not reveal any instance where appellant exercised this prerogative and refused to support an al Qaeda mission or declined to obey bin Laden's orders.

Appellant, on numerous occasions, delivered requests for logistical support, including weapons and ammunition, to al Qaeda's logistical officer and subsequently delivered the military supplies to the Panjshir Valley. Appellant also delivered bin Laden's orders for military supplies. Appellant repeatedly attended anti-Western lectures given by bin Laden. This began with his own training at an al Qaeda training camp and continued throughout his association with bin Laden, including driving him to training camps and other meetings.

In August 1996, bin Laden issued a video which included a "declaration of war" against the Americans who were occupying land in the Arabian Peninsula (1996 Jihad Declaration). Bin Laden's 1996 Jihad Declaration encouraged the killing of American soldiers in the Arabian Peninsula, and he called upon Muslims everywhere to carry out operations to expel Americans and non-Muslims from the Arabian Peninsula by use of "explosions and jihad" stating:

In February 1998, bin Laden held a press conference in Afghanistan and announced the founding of the "World Islamic Front Against Jews and Crusaders." "Bin Laden and his colleagues signed a joint fatwah requiring all Muslims able to do so to kill Americans—whether civilian or military—anywhere they can be found and to `plunder their money.'" Bin Laden issued a declaration called "The Nuclear Bomb of Islam" which included the statement, "it is the duty of Muslims to prepare as much force as possible to terrorize the enemies of God." On August 7, 1998, al Qaeda operatives detonated truck bombs outside the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, killing 257 people, including 12 Americans, and wounding thousands more. Before the bombings of the U.S. Embassies in Nairobi and Tanzania in 1998, appellant knew that a terrorist attack outside of Afghanistan targeting Americans was going to take place. Bin Laden did not know how the U.S. would react, so bin Laden left his compound in Kandahar the day after the attacks and went to Kabul for 10 days. In 1998, appellant drove bin Laden to a press conference related to the 1998 East African Embassy bombings. While there, appellant met al-Zawahiri. On August 20, 1998, the United States retaliated, sending tomahawk missiles and striking "terrorist training camps in Afghanistan and a suspected chemical weapons laboratory in Khartoum, Sudan." Shaykh Omar Abdel Rahman responded from inside his American jail cell by urging new recruits to join the cause and issuing a new fatwah, saying, "Oh, Muslims everywhere! Cut the transportation of their countries, tear it apart, destroy their economy, burn their companies, eliminate their interests, sink their ships, shoot down their planes, kill them on the sea, air, or land. Kill them when you find them, take them and encircle them. . . ."

In October 2000, al Qaeda operatives exploded a bomb alongside the USS COLE, "killing 17 American sailors, wounding 39 others, and causing nearly $250 million in damage. The COLE operation came at the direction and urging of Usama bin Laden, Abu Hafs Al Masri, and other senior [al-Qaeda] leaders." At the time of the USS COLE bombing, appellant was in Yemen. He believed that due to his close association with bin Laden, he might be apprehended, so he made arrangements to return to Afghanistan. Appellant knew that the scope of bin Laden and al Qaeda's operations included terrorist attacks targeting Americans outside of Afghanistan.

Appellant drove bin Laden in a convoy in August 2001 to a large gathering with 150-200 attendees, mostly Egyptian Islamic Jihad members and al Qaeda members. After the dinner, al-Zawahiri and bin Laden announced that the Egyptian Islamic Jihad and al Qaeda were merged. Subsequently, appellant drove bin Laden to meetings with al-Zawahiri and drove in convoys with both bin Laden and al-Zawahiri.

Al Qaeda's actions achieved worldwide infamy when, on September 11, 2001, 19 men recruited by al Qaeda hijacked four commercial airliners on the east coast of the United States and crashed one into the Pentagon in Washington D.C. and two into the World Trade Center towers in New York. The fourth aircraft crashed in Pennsylvania after the passengers attacked the hijackers.

Seven to ten days before September 11, 2001, bin Laden told appellant they were evacuating the compound because an operation was about to take place. Two days prior to the operation, appellant took bin Laden to Kabul, where they stayed until just after the 9/11 attack. The day after the attack, at dinner, bin Laden confirmed that he was responsible for the 9/11 operation. Subsequently, appellant drove bin Laden to Lahore, a military camp with numerous tunnels and structures for hiding. After a week hiding there with bin Laden, appellant continued to transport bin Laden around Afghanistan, changing locations every few days to help bin Laden escape retaliation by the United States. Shortly after 9/11, appellant drove bin Laden and al-Zawahiri to a camp outside of Kabul where bin Laden made a video talking about Jews, Americans, and jihad.

Congress passed the Authorization for Use of Military Force resolution (AUMF) one week after the September 11, 2001 terrorist attacks. Pub.L. No. 107-40, 115 Stat. 224 (2001). The AUMF authorizes the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." Id. The President ordered the armed forces to Afghanistan "to subdue al Qaeda and quell the Taliban regime that was known to support it." Hamdi v. Rumsfeld, 542 U.S. 507, 510, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). Subsequently, United States and allied armed forces engaged in military operations in Afghanistan where appellant was seized on November 24, 2001.

II. CHARGE AND SPECIFICATIONS WITH GUILTY FINDINGS

Appellant was convicted of two types of providing material support for terrorism. First, he provided material support for carrying out an act of terrorism. Second, he provided material support to an international terrorist organization. See 2007 M.M.C., Part IV, ¶¶ 6(25)bA and 6(25)bB. The five specifications of which he was convicted begin with identical language:

The specifications continue with individualized allegations as follows:

III. PROCEDURAL HISTORY

In late 2001, militia forces in Afghanistan captured appellant, and on November 24, 2001, they turned him over to the U.S. military. In 2002, the U.S. military transported him to a military detention facility in Guantanamo Bay, Cuba, where he was held until he was transferred to Yemen in November 2008.

On July 3, 2003, the President declared appellant eligible for trial by military commission on unspecified charges pursuant to the President's Military Order of November 13, 2001. Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 155 (D.D.C.2004). On July 13, 2004, the Appointing Authority referred to trial by military commission one charge with one specification of conspiracy with bin Laden and other "members and associates of the al Qaeda organization, known and unknown, to commit" the offenses of "attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism." Charge Sheet and Referral, Allied Papers.

On April 6, 2004, appellant filed a petition for mandamus or habeas corpus in the U.S. District Court for the Western District of Washington. Hamdan, 344 F.Supp.2d at 155. On July 8, 2004, the Ninth Circuit directed that all habeas cases from Guantanamo "should be heard in the District Court of the District of Columbia." Id. at 156 (citing Gherebi v. Bush, 374 F.3d 727 (9th Cir.2004)). On September 2, 2004, appellant's case was docketed in the District Court of the District of Columbia. Id. On November 8, 2004, the District Court stayed appellant's military commission trial until the Department of Defense complied with various requirements of the Court. Id. at 173-74. On July 15, 2005, a D.C. Circuit panel unanimously reversed the District Court. Hamdan v. Rumsfeld, 415 F.3d 33, 44 (D.C.Cir.2005). On November 7, 2005, the Supreme Court granted certiorari. Hamdan v. Rumsfeld, 546 U.S. 1002, 126 S.Ct. 622, 163 L.Ed.2d 504 (2005).

On June 29, 2006, the Supreme Court ruled in Hamdan v. Rumsfeld, 548 U.S. 557, 635, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), that the military commission system then in existence violated Article 36, Uniform Code of Military Justice (UCMJ) and the Geneva Conventions, and that appellant was entitled to the protections of Common Article 3 of the Geneva Conventions (Common Article 3). See pp. 1261-63 infra (discussing Supreme Court decision and quoting Common Article 3). Subsequently, Congress passed the 2006 M.C.A., which President Bush signed into law on October 17, 2006. Remarks on Signing the Military Commissions Act of 2006, 42 Weekly Comp. Pres. Doc. 1831-33 (Oct. 17, 2006). The 2006 M.C.A. established a revised system of military commissions, which limited jurisdiction to alien unlawful enemy combatants (AUECs). 2006 M.C.A. § 948c. See n. 48, infra. (defining the term AUEC).

On May 10, 2007, the convening authority referred to trial by military commission one charge each of conspiracy and providing material support for terrorism, citing violations of 10 U.S.C. §§ 950v(b)(28) and 950v(b)(25). Appellant again asked the District Court to stop his trial. On July 18, 2008, the District Court declined to stop his trial, acknowledging the new landscape of military commissions after enactment of the 2006 M.C.A. Hamdan v. Gates, 565 F.Supp.2d 130, 136-37 (D.D.C. 2008).

Appellant pleaded not guilty to the two charges. Although the military commission found appellant not guilty of conspiracy and three specifications of providing material support for terrorism, he was found guilty of five specifications of providing material support for terrorism.

On August 7, 2008, the military commission sentenced appellant to 66 months of confinement, and the military commission judge awarded confinement credit of 61 months, seven days. In late November 2008, appellant was transferred to his native Yemen for the remaining few weeks of confinement. Appellant's Brief at 3. In January 2009, Yemeni authorities released appellant. Id. On July 16, 2009, the convening authority approved appellant's conviction and sentence.

IV. ISSUES

Appellant urges this court to vacate the findings and sentence of the military commission for three reasons. First, he contends the military commission, established pursuant to Congress's Article I power to "define and punish . . . Offenses against the Law of Nations," lacked subject matter jurisdiction over the offense of providing material support for terrorism, because it is not a violation of the international law of war. Second, he argues his conviction for that offense is the result of an ex post facto prosecution prohibited by both the U.S. Constitution and international law, because 10 U.S.C. § 950v(b)(25) was signed into law on October 17, 2006, several years after the alleged conduct in the charges occurred. Third, he claims that the 2006 M.C.A. violates the Constitution by making aliens, but not citizens, subject to trial by military commission. Our Court also granted appellant's motion to be heard on two issues relating to appellant's second argument,7 and appellant continued to maintain that his prosecution was barred because the offenses were ex post facto.

V. MILITARY COMMISSION PROCEDURES

In light of its predicate application of Common Article 3,8 in 2006 the Supreme Court determined the Presidentially-directed structure for appellant's original trial in 2004 was inconsistent with the limitations imposed by Congress pursuant to Article 36, UCMJ, 10 U.S.C. § 836,9 and was therefore illegal. Hamdan, 548 U.S. at 620-25, 126 S.Ct. 2749. The Court considered the President's authority to convene appellant's military commission without specific statutory authority to prosecute the charged offense, and addressed the jurisdictional basis of military commissions stating:

The Hamdan Court, quoting Chief Justice Chase in Ex parte Milligan, emphasized the limits on the President's authority to convene military commissions without more specific statutory authorization stating:

Id. at 591-92, 126 S.Ct. 2749 (quoting Ex parte Milligan, 71 U.S. 2, 139-40, 4 Wall. 2, 18 L.Ed. 281 (1866); citation omitted). The Court found appellant's initial military commission substantially deviated from regular court-martial practice, and the record lacked an adequate demonstration that procedures more similar to courts-martial were not practicable. Id. at 622 & n. 50, 624, 126 S.Ct. 2749. Article 36, UCMJ, required either uniformity or justification for variation from UCMJ procedures, rendering those military commission's variations illegal. Id. at 625, 126 S.Ct. 2749. Distinguishing the pre-enactment of the UCMJ precedent which supported military commissions like appellant's, the Court noted, "Prior to the enactment of Article 36(b), [UCMJ,] it may well have been the case that a deviation from the rules governing courts-martial would not have rendered the military commission illegal. Article 36(b), however, imposes a statutory command that must be heeded." Id. at 625 n. 54, 126 S.Ct. 2749 (internal citations, quotation marks, and emphasis omitted).

Justice Breyer suggested the President seek Congressional authorization for military commissions when those procedures are inconsistent with the UCMJ stating, "Indeed, Congress has denied the President the legislative authority [under Article 36, UCMJ] to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary." Id. at 636, 126 S.Ct. 2749 (Breyer, Kennedy, Souter, and Ginsburg, JJ., concurring).

In response, Congress passed the 2006 M.C.A., and President Bush signed the Act into law. On October 28, 2009, President Obama signed into law the 2009 M.C.A.11 With the enactment of the 2009 M.C.A., two different Presidents and two different Congresses have spoken on the issue of how military commissions should be conducted. After vigorous Congressional debate, the 2009 M.C.A. did not change the jurisdiction of military commissions nor did it eliminate the offense of providing material support for terrorism. Compare 2006 M.C.A. §§ 948d, 950v(b)(25) with 2009 M.C.A. §§ 948d, 950t(25). The 2006 and 2009 M.C.A.s broadly conformed commission procedures to those under the UCMJ, with several exceptions.12

Current structure of military commissions is similar to trials in U.S. district courts and courts-martial. The duties of a military commission judge, who is required to have the same qualifications as a trial judge at courts-martial, include deciding pretrial motions and other issues of law and instructing the military commission about the elements of offenses. 2006 M.C.A. §§ 948j(b), 949d, and 9491; Article 26, UCMJ. The accused automatically receives assigned military counsel, who is required to have the same qualifications as military defense counsel at courts-martial, and the accused may be represented by civilian counsel. 2006 M.C.A. §§ 948k(c) and 949c(b); Article 27, UCMJ. The members detailed to a military commission act as the "jury" for findings and sentencing, and they are required to have the same qualifications as all-officer courts-martial panels, "those active duty commissioned officers, who in the opinion of the convening authority are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament." 2007 M.M.C., Rule for Military Commissions 502(a)(1); MMC (2008), Rule for Courts-Martial 502(a)(1). See also M.C.A. § 948i(b); Article 25, UCMJ.

The merits phase of a military commission trial begins with opening statements, and the Government and accused have opportunities to present their cases. Next, both sides make their closing arguments, the military commission judge instructs the commission members about the elements of the offenses, evidentiary matters, and burden of proof. Then the members decide, in closed session, whether the Government has proven the guilt of the accused beyond a reasonable doubt. If the accused is found guilty of any specification, the commission members specify the sentence in a manner similar to trials by court-martial. The accused's rights at a military commission are briefly listed at n. 171, infra.

After a trial resulting in a finding of guilty, the record is reviewed by the convening authority, the U.S. Court of Military Commission Review, and the U.S. Court of Appeals for the District of Columbia Circuit. 2006 and 2009 M.C.A. §§ 950b, 950f, and 950g. The Supreme Court may review by writ of certiorari the final judgment of the United States Court of Appeals for the District of Columbia Circuit.2006 and 2009 M.C.A. § 950g(e).

VI. STANDARD OF REVIEW

We review the military commission judge's decision whether the military commission had subject matter jurisdiction de novo because jurisdiction is a question of law.13 We also consider appellant's challenges to the constitutionality of the 2006 M.C.A. under a de novo standard of review.14 We must ensure that findings of guilty are correct in law and fact and the sentence is appropriate.15 We review factual sufficiency de novo applying a proof beyond reasonable doubt standard.16 Our Court is required to "weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the military commission saw and heard the witnesses." 2009 M.C.A. § 950f(d). We also review the sentence to ensure appellant is "sentenced only for the offense or offenses of which he has been found guilty. A proper sentence is one tailored to the particular accused member and the nature and seriousness of the offense."17

VII. PROVIDING MATERIAL SUPPORT FOR TERRORISM AS A LAW OF WAR OFFENSE

A. Authority to Define Law of War Offenses

Appellant contends that Congress exceeded its authority in violation of the Constitution's Define and Punish Clause, art. I, § 8, cl. 10, when Congress established providing material support for terrorism as an offense in the 2006 M.C.A.18 We disagree. Provided their actions are taken respecting the Constitution, the President and the Congress have broad discretion when acting during an ongoing conflict in the areas of war powers, foreign relations, and aliens.19 Nothing in the current appeal serves to challenge the outer limits of the Congress's authority under the Constitution's Define and Punish Clause.

1. War Powers

The Government has broad powers to safeguard the United States under the Constitution in time of war. In addition to the Define and Punish Clause, the Supreme Court listed nine constitutional sources relevant to authorizing military commissions to support the nation's warfighting efforts.20 One constitutional source of authority for appellant's military commission stems from the Constitution's War Powers. In 1948, the Supreme Court emphasized the nation's war powers include:

Lichter v. United States, 334 U.S. 742, 767 n. 9, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948) (citations omitted).

"From the very beginning of its history [the Supreme Court] has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals." Ex parte Quirin, 317 U.S. 1, 27-28, 63 S.Ct. 2, 87 L.Ed. 3 (1942). Like the law of nations, the law of war must adapt to changing circumstances to be effective. This requirement was recognized during the trials of Nazi war criminals after World War II:

Using its authority to define and punish offenses against the law of nations, Congress approves, within constitutional limitations, jurisdiction of military commissions to try persons for offenses against the law of war. Quirin, 317 U.S. at 26-31, 63 S.Ct. 2. An important tool of the military command, military commissions are "an institution of the greatest importance in a period of war and should be preserved." Madsen v. Kinsella, 343 U.S. 341, 353 n. 20, 72 S.Ct. 699, 96 L.Ed. 988 (1952) (quoting S.Rep. No. 229, 63d Cong., 2d Sess. 53, 98-99 (1914) (reporting testimony of Brig. Gen. Enoch M. Crowder to the House Committee on Military Affairs in 1912 and to the Sen. Subcommittee on Military Affairs, Revision of the Articles of War, Feb. 7, 1916, vol. I, 40-41)). As Colonel Winthrop, the "Blackstone of Military Law,"22 explained:

More recently, the Supreme Court reemphasized the necessity for the Judiciary to refrain from review of "issues aris[ing] in the context of ongoing military operations conducted by American Forces overseas.. . . [being] cognizant that `courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.'" Munaf v. Geren, 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (quoting Dep't of the Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988)). For example, the Supreme Court declined to permit habeas intervention, over the objection of the executive branch, in an Iraq court case involving a U.S. citizen held by U.S. forces stating:

Although "deference does not mean abdication," the Supreme Court has consistently refrained from interfering in congressional decisions made pursuant to the national security clauses.25 "[J]udicial deference to [a] congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). Similarly, the political branches' determination of United States' obligations under international law is a determination about the conduct of American foreign policy.26

2. Foreign Affairs

Defining and enforcing the United States' obligations under international law implicitly require the making of extremely sensitive policy decisions. Such decisions will inevitably color our relationships with other nations. Decisions of this nature "are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.. . ." Finzer v. Barry, 798 F.2d 1450, 1458-59 (D.C.Cir.1986) (citation omitted), affirmed in part and reversed in part, Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). Under the "political question" doctrine, courts should abstain from cases where there "is found a textually demonstrable constitutional commitment of the issue to a coordinate political department." Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

Article II of the Constitution establishes that the "President has the lead role . . . in foreign policy" and the "vast share of responsibility for the conduct of our foreign relations." Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414-15, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (citations omitted; internal quotation marks omitted). The President's constitutional function "uniquely qualifies him to resolve the sensitive foreign policy decisions that bear on compliance" with international agreements. Medellin v. Texas, 552 U.S. 491, 523-24, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (citations omitted; internal quotation marks omitted). The United States Government's interpretation, construction and application of treaty provisions and responsibilities are "entitled to great weight." Id. at 513, 128 S.Ct. 1346 (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982)); see also Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961). In addition, the President "has a degree of independent authority to act" in foreign affairs. Am. Ins. Ass'n, 539 U.S. at 414, 123 S.Ct. 2374 (citation omitted).

Justice Jackson described the President's authority for executive action when national security relating to foreign affairs is an issue and Congress has provided express authorization stating:

There is no dispute that "the United States has a vital national interest in complying with international law. The Constitution itself attempts to further this interest by expressly authorizing Congress `to define and punish. . . . Offenses against the Law of Nations.' U.S. Const., Art. I, § 8, cl. 10." Boos v. Barry, 485 U.S. 312, 323, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). "[T]he Constitution authorized Congress to derive from the often broadly phrased principles of international law a more precise code . . . [to comply] with rules governing the international community." Finzer, 798 F.2d at 1455.

There is judicial precedent for the proposition that Congress's authority is not restrained "by principles of customary international law in its ability to legislate in respect of extraterritorial conduct." United States v. Yousef, 327 F.3d 56, 109 n. 44 (2d Cir.2003) (citing The Nereide, 13 U.S. 388, 9 Cranch 388, 3 L.Ed. 769 (1815)). Congress has constitutional authority to "manifest [its] will" to establish a rule not necessarily reflective of customary international law "by passing an act for the purpose." Id. at 109 (quoting The Nereide, 13 U.S. at 423). "[S]ubsequently enacted statutes . . . preempt existing principles of customary international law— just as they displaced prior inconsistent treaties" and "no enactment of Congress can be challenged on the ground that it violates customary international law." Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C.Cir.1988). Further, courts are required to defer to Congress's "unambiguous exercise" of its power to grant jurisdiction to agencies or to courts, and that is true even if such an exercise might be argued to "exceed the limitations imposed by international law." FTC v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1323 (D.C.Cir.1980) (citation omitted). We will not assume the scope of this principle to be so expansive as to contravene the precedence of U.S. law as provided for by the Constitution.

In this case, Congress and the President seek to protect our Nation's interests in ensuring compliance with the law of war and adherence to the law of nations, including customary international law, through adjudication and punishment of particular crimes against the law of war. The nature of questions concerning the jurisdiction of a military commission to prosecute specific war crimes authorized by statute "requires us to proceed with circumspection" to avoid "adjudicating issues inevitably entangled in the conduct of our international relations."28

The protective principle in international law provides a basis for jurisdiction of offenses occurring outside the United States. Recently, the courts have discussed the constitutional authority of Congress to establish and punish drug traffickers apprehended outside U.S. territorial waters under the Maritime Drug Law Enforcement Act (MDLEA).29 The Supreme Court noted that Congress may constitutionally operate under a broader inherent authority when acting to protect national interests. Youngstown, 343 U.S. at 637, 72 S.Ct. 863. This is so even in instances where the act occurs outside the territory of the United States. In a challenge to the constitutionality of the MDLEA to prosecute noncitizen defendants captured on the high seas, the 1st Circuit Court noted:

United States v. Vilches-Navarrete, 523 F.3d 1, 21-22 (1st Cir.2008) (Lynch, J., concurring in judgment) (quotation marks and citations omitted). More specifically, in dealing with a direct challenge to constitutionality of the 1990 Antiterrorism Act for murder of U.S. nationals outside the United States, a Federal District Court made the following observation, which provides some authority for concluding the Define and Punish Clause does not limit prosecution of extraterritorial conduct connected to terrorism:

There is no constitutional prerequisite of universal, international, or scholarly unanimity before Congress may act to subject appellant to trial before a military commission for his support of bin Laden and al Qaeda in the unlawful conflict they are waging against the United States.33

B. Defining Terrorism and Providing Material Support for Terrorism

1. U.S. Domestic Terrorism Offenses— Title 18

Congress passed prohibitions against terrorism in 1996, including providing material support for terrorism under 18 U.S.C. §§ 2339A and 2339B. Congress made specific findings emphasizing the importance of combating terrorism under multiple specific powers, interests, and concerns. Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 301, 110 Stat. 1247, note following 18 U.S.C. § 2339B (Findings and Purpose), and § 324, 110 Stat. 1255, note following 18 U.S.C. 2339A (Findings) (Apr. 24, 1996). See also Holder v. Humanitarian Law Project, 561 U.S. ___, 130 S.Ct. 2705, 2712, 2724-26, 2729, 2733, 2735, 177 L.Ed.2d 355 (2010) (citing provisions from Congress's specific findings in § 301). Congress described the purpose and made the following specific findings for AEDPA § 301:

In AEDPA § 324, the Congress found that:

All of those same necessary concerns, plus the necessity to successfully prosecute the ongoing conflict, are present in the 2006 M.C.A.'s codification of the offense of providing material support for terrorism under § 950v(a)(25).

Providing material support for terrorism (18 U.S.C. §§ 2339A, 2339B) was the basic model for the 2006 M.C.A. offense bearing the same name.34 On September 13, 1994, Congress enacted 18 U.S.C. 2339A. Title 18 U.S.C. 2339A was amended on April 24, 1996 to read:

On April 24, 1996, Congress enacted 18 U.S.C. § 2339B, "Providing material support or resources to designated foreign terrorist organizations," which included extraterritorial jurisdiction and provided:

Al Qaeda was not designated as a "foreign terrorist organization" as required for 18 U.S.C. 2339B(a) until October 8, 1999.37

Under U.S. domestic law, members of al Qaeda have violated federal statutes relating to terrorism. Title 18 U.S.C. § 2331(1) defines "international terrorism" to be activities that:

On April 24, 1996, Congress enacted the AEPDA of 1996, 18 U.S.C. § 2332b, "Acts of terrorism transcending national boundaries." AEPDA includes extraterritorial jurisdiction under 18 U.S.C. § 2332b(e) for violations of 18 U.S.C. § 2332b(a), which now provides:

Section 2332b(g)(5), defines the term "Federal crime of terrorism" to mean an offense that—"(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct," and this definition is included in numerous offenses listed in § 2332b(g)(5)(B), several of which are particularly relevant to al Qaeda's attacks upon U.S. citizens, diplomatic personnel, and facilities.38

2. Congressional Finding that Providing Material Support for Terrorism is a Traditional Law of War Offense

The 2006 M.C.A. § 950p defines preexisting violations of the law of war in its "Statement of substantive offenses" as follows:

After several witnesses discussed the issue of whether the M.C.A. offense of providing material support for terrorism could be retroactively applied to AUECs,39 Congress decided the M.C.A. offense was a recognized law of war violation. The 2009 M.C.A. § 950p(d) states:

3. The M.C.A. and Providing Material Support for Terrorism

The 2006 and 2009 versions of the M.C.A. contained identical language concerning the offense of providing material support for terrorism. Compare 2006 M.C.A. § 950v(b)(25) with 2009 M.C.A. § 950t(25). The 2007 M.M.C.40 has drawn the elements for this offense from Section 950v(b)(25) of the 2006 M.C.A., which reads:

4. M.M.C.'s List of Elements for Appellant's Specifications

Appellant was convicted of Specifications 5 and 7 of Charge II, providing material support for an act of terrorism. The 2007 M.M.C., Part IV, ¶ 6(25)bA, lists the particular elements as follows:

Appellant was convicted of Specifications 2, 6, and 8 of Charge II, providing material support for an international terrorist organization. The 2007 M.M.C. in Part IV, ¶ 6(25)bB, lists the particular elements as follows:

5. Criminal Intent and Wrongfulness

It is not appellant's conduct in isolation that constitutes a law of war violation triable by military commission. Rather, it is his knowledge, intent, and conduct, in support of terrorism, and in the specific context of a conflict triggering application of U.S. treaty obligations per Common Article 3, which make it cognizable under the 2006 M.C.A. In enacting the 2006 M.C.A., Congress circumscribed the capacity of the military to unilaterally interpret the law of war and craft law of war offenses and punishments in connection with al Qaeda and terrorism offenses. The charges at bar are not the exercise of fiat or expediency by the executive branch; they are the product of closely prescribed statutes of limited application encompassing the peculiarities of the modern geopolitical environment.

First, the 2006 M.C.A. strictly limited jurisdiction of military commissions to AUECs,48 as defined under the 2006 M.C.A. §§ 948a(1)(A) and 948a(3).49 Our Court explained in 2007:

United States v. Khadr, 717 F.Supp.2d 1215, 1221 (USCMCR 2007) (internal footnote omitted). Lawful enemy combatants and those lawfully aiding or providing material support to lawful enemy combatants receive various privileges under international law, including combatant immunity. Id. The M.C.A. incorporates the necessity that the accused must be an unlawful combatant to emphasize the requirement of wrongfulness.50 In addition, the military commission members must determine that appellant's conduct was wrongful—that is in furtherance of an act of terrorism, and not legitimate warfare undertaken by a lawful combatant.51

Second, the conduct took place in the context of and was associated with an armed conflict.52 The Supreme Court emphasized the importance of this requirement.53 The military commission judge properly instructed,54 and the military commission found beyond a reasonable doubt that this requirement was met.

Third, appellant had the requisite criminal intent and knowledge. The military commission judge properly instructed about these elements, see pp. 1282-84, infra, and the military commission found these requirements were met.

The acts were committed by an AUEC in the context of an armed conflict with the requisite knowledge and intent. Accordingly, we find they constitute clear law of war violations per the 2006 M.C.A.

6. Findings of the Military Commission Judge

At trial, the military commission judge considered various U.N. Security Council Resolutions against terrorism, referenced in the domestic criminal offense of providing material support for terrorism in Title 18 of the U.S. Code. See AE 263. He also discussed records about "guerilla-marauders," "bushwhackers," and "jayhawkers" dating from the American Civil War. See AE 263 at 4-5. The military commission judge quoted Winthrop's description of these "armed prowlers":

Id. at 4 (quoting 1920 Winthrop, supra n. 23, at 783-84). See p. 57, infra (quoting Lieber's Instructions 26-27 (Articles 82 and 84)). He equated the conduct of these marauding bands with terrorism, "[i]n modern parlance, they might be referred to as terrorists, or those who provided material support for terrorism." AE 263 at 5. He concluded "that Congress `had an adequate basis' to conclude that providing material support for terrorism has "traditionally been considered [a violation] of the law of war," and he denied appellant's ex post facto motion to dismiss. Id. at 6.

C. Criminalization of Analogous Global Conduct

Even though Congress concluded the offense of providing material support for terrorism has "traditionally been triable under the law of war or otherwise triable by military commission," that conclusion is not due absolute deference by this court. "It is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed. 60 (1803). We have an independent responsibility to determine whether appellant's charged conduct existed as well-recognized criminal conduct.

We, like the military commission judge, consider international and domestic sources of law55 for pre-existing examples of criminalization under the law of war of conduct similar to that for which appellant was convicted. In addition to those sources discussed from pp. 1272-80, supra, we look to international conventions and declarations, international tribunals, and other U.S. precedent associated with armed conflict.

1. International Conventions and Declarations

"Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation." Restatement (Third) of Foreign Relations Law of the United States § 102(2) (Am. L. Inst. 1987). "International agreements" establish duties and responsibilities for the state parties and can be evidence of customary international law "when such agreements are intended for adherence by states generally and are in fact widely accepted." Id. at § 102(3). We are concerned here with a specific subset of this body of law, the laws or customs of war. Colonel Winthrop described in his influential treatise, supra n. 23, at 42, the manner of application of "Laws or Customs of War" stating:

In 1949, four separate international conventions were adopted to address the needs of (1) wounded and sick in the field; (2) wounded, sick, and shipwrecked at sea; (3) prisoners of war; and (4) civilians.57 The Geneva Conventions articulated various positive and negative duties towards each of these groups. Common Article 3 to the Geneva Conventions of 1949 requires humane treatment of persons taking no active part in the hostilities and prohibits violence against such persons.58 Numerous antiterrorism treaties or conventions predate appellant's offenses.59 Congress made violation of Common Article 3 a war crime under the War Crimes Act of 1996.60 The Rome Statute for the International Criminal Court and the War Crimes Act of 1996, have explicitly referenced the standards for grave breaches of the Geneva Conventions in defining war crimes.61 For example, the 1971 Terrorism and Extortion Convention62 provides that the contracting States:

Similarly, the 1971 Aviation Convention, supra n. 59, asserts criminal liability for both hijackers and their accomplices. Other conventions follow this scheme.63 In 1994, the UN General Assembly solemnly declared:

The 1994 Terrorism Declaration urged action "to ensure the apprehension and prosecution or extradition of perpetrators of terrorist acts. . . ." § 15(b), supra n. 64.

Describing terrorism as a crime of international significance, the treaties oblige the parties to criminalize various facets of terrorism in their domestic criminal codes and to cooperate amongst themselves to prevent and punish acts of terrorism. The 1997 Bombing Convention, supra n. 59, has 58 signatories and 164 state parties. It adopted broad language similar to providing material support for terrorism. In Article 2, 112, this Convention provides criminal liability for any person who:

Similarly, the 1999 Financing Convention, supra n. 59, provides, "Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used . . . in full or in part, in order to carry out" violent terrorism-type offenses or offenses "within the scope and defined in" one of the nine UN Conventions or Protocols listed in the 1999 Financing Convention's Annex. Id. at Article 2, ¶ 1. See also, id. at Article 2, ¶¶ 3-5. This language is of particular significance to our analysis insofar as it seeks to criminalize conduct falling within the definition of providing material support for terrorism articulated in the M.C.A.

Gradually, regional conventions focused on combating terrorism began to encourage member states to broaden their application of criminal liability.65 Forty-six member countries of the Council of Europe ratified or accessed a treaty supporting the extradition of those who commit or support terrorist acts, and recognized kidnapping, hostage taking, bombing, attempts, and "participation as an accomplice" in such activity.66 If the suspected terrorist is not extradited, a State shall "submit the case, without exception whatsoever and without undue delay, to its competent authorities for the purpose of prosecution." Id. at Art. 7. More recently, the South Asian Association for Regional Cooperation (SAARC) Regional Convention on Suppression of Terrorism, (Nov. 4, 1987) was signed by representatives from Bangladesh, India, Nepal, Bhutan, Maldives, Pakistan, and Sri Lanka.67 Under Article I, it listed as cognizable crimes various terrorism-related offenses, including attempt, conspiracy, aiding, abetting, accomplice, and counseling, when connected to multiple UN Conventions or other violent-terrorism-type offenses. Articles II-VIII urge members to facilitate extradition and prosecution.

These conventions occurred in the context of the United Nations Security Council's condemnations of international terrorism and its supporters. At a Security Council meeting on January 31, 1992, "at the level of Heads of State and Government, the Council expressed its deep concern over acts of international terrorism, and emphasized the need for the international community to deal effectively with all such criminal acts."68 In 1998, the Security Council adopted Resolution 1189 "[s]trongly condem[ning] the terrorist bomb attacks in Nairobi, Kenya and Dares-Salaam, Tanzania on August 7, 1998 which claimed hundreds of innocent lives, injured thousands of people and caused massive destruction to property." Id. at ¶ 1. It "calls upon all states and international institutions to cooperate" and provide assistance "to apprehend the perpetrators of these cowardly criminal acts and to bring them swiftly to justice." Id. at ¶ 3. Finally, it urges "all States to adopt. . . effective and practical measures . . . for the prevention of such acts of terrorism, and for the prosecution and punishment of their perpetrators." Id. at ¶ 5. In the same year, the Security Council expressed its concern in Resolution 1214 about "the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and the planning of terrorist acts, and reiterating that the suppression of international terrorism is essential for the maintenance of international peace and security." S.C. Res. 1214, U.N. Doc. S/RES/1214 (Dec. 8, 1998), Preamble (emphasis in original). It demanded "that the Taliban stop providing sanctuary and training for international terrorists and their organizations." Id. at 1113.

Although the approach of various nations towards punishment of terrorism-related offenses varies, prosecution of such offenses has been encouraged by the United Nations Security Council and treaties. See n. 59, supra. We are satisfied that international conventions and treaties provided an additional basis in international law that appellant's charged conduct in support of terrorism was internationally condemned and criminal.

2. International Criminal Tribunals

In 1993, the United Nations Security Council established the first of the modern international tribunals—the International Criminal Tribunal for the former Yugoslavia (ICTY)—as an ad hoc court to prosecute crimes committed during the period of armed conflict in the former Yugoslavia.69 The Security Council's mandate limited ICTY jurisdiction to those areas of international humanitarian law which were "beyond any doubt" part of customary international law.70 Consequently, the subject matter jurisdiction of the Yugoslavia Tribunal was limited to: the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907, the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, and the Charter of the International Military Tribunal of 8 August 1945.71

Since the first hearing in 1994, the ICTY has indicted 161 individuals, completed trials on 125 persons, and 36 proceedings are ongoing.72 Defendants range from common soldiers to generals and Prime Minister Slobodan Milosević. Id.

International law also recognizes joint criminal enterprise (JCE) as a theory of criminal liability. At appellant's trial, the military commission judge granted a defense motion and excepted the JCE language from appellant's conspiracy specification, of which he was acquitted. The deletion of these words and the ultimate finding on this specification, however, do not forestall this court in this or future cases from considering JCE as a recognized theory of criminal liability for purposes of determining whether an appellant's conduct was prohibited and historically punishable as a law of nations offense.73 Our focus here is on whether the international community considered appellant's actions to be criminally punishable when he provided material support to al Qaeda.

Membership in a criminal enterprise by itself is distinguishable from JCE. "[O]nly natural persons (as opposed to juridical entities) were liable under the Tribunal's Statute, and that mere membership in a given criminal organi[z]ation [is] not sufficient to establish individual criminal responsibility" or liability under JCE.74 JCE is "concerned with the participation in the commission of a crime as part of a[JCE], a different matter."75 To be clear, the doctrine of JCE entails a combination of membership, organizational liability, and participation of the individual. Appellant's membership in Al Qaeda and knowledge of its purposes was established at the military commission. The participation aspect was met through the conduct comprising the specifications before us.

JCE doctrine provides a theory of liability for proving a specific crime, and it is not a stand-alone substantive offense.76 JCE considers each member of an organized criminal group individually responsible for crimes committed by the group within the common plan or purpose, and it requires an overt act in support of the offense. As such, the doctrine brings a similar analytical nexus to providing material support for terrorism.77

In Tadić, the Trial Chamber found no direct evidence that the accused had taken an actual part in the killings charged. Tadić Appeal Chamber, supra n. 75, at ¶¶ 178-183. The Appeals Chamber, however, overturned the Trial Chamber and convicted Tadić relying on the concept of common purpose, later referred to as JCE. Under JCE "responsibility for a crime other than the one agreed upon in the common plan arises if, under the circumstances of the case, (i) it was foreseeable that a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk." Id. at ¶ 228 (emphasis in original). Tadić actively took part in the attack on the town, and was involved in beating a resident. Id. at ¶ 232. Tadić was found criminally liable because he shared the intent of the JCE to use violence to ethnically cleanse the town of Jaskici. Id. at ¶¶ 232-33. He was, therefore, held to be responsible for the five deaths since they were perpetrated in the course of the removal and were a foreseeable consequence of the plan. Id. at ¶¶ 233-34. Tadić was found guilty of a "violation of the laws or customs of war in terms of . . . murder," among other offenses. Id. at ¶¶ 235-37.

In JCE, the establishment of a common purpose is critical for criminal liability. In the Milosević case, prosecutors argued that the indictments against Milosević were "all part of a common scheme, strategy, or plan on the part of the accused to create a `Greater Serbia,'. . . and that this plan was to be achieved by forcibly removing non-Serbs from large geographical areas through the commission of the crimes charged in the indictments."78 Under this theory of criminal liability, members of the JCE were held responsible for all of the crimes committed by the group in furtherance of the "Greater Serbia" plan.

Although the members of the JCE must have a common purpose, it is not necessary for the participants to be organized "into any sort of military, political, or administrative structure."79 The common purpose need not be previously "arranged or formulated but `may materiali[z]e extemporaneously and be inferred from the fact that a plurality of persons act in unison to put into effect a joint criminal enterprise.'" The "common criminal purpose in terms of both the criminal goal intended and its scope" may be specified in general terms, such as ethnic cleansing of certain geographic areas. Under the third category of JCE, "the accused does not need to possess the requisite intent for the extended crime—the crime falling outside the common purpose."

JCE liability does not require "that the accused [be] present at the time and place of perpetration of the crime . . ., it suffices that an accused perform acts `that in some way are directed to the furthering of the common plan or purpose.'" Although the accused's "participation or contribution . . . to the common purpose need not be substantive, . . . `it should at least be a significant contribution to the crimes for which the accused is found responsible.'"

An accused's participation in a JCE need not involve an act or failure "to act in a way that assists, encourages, or lends moral support to another in the perpetration of a crime or underlying offence. Rather, the accused need merely act or fail to act `in some way . . . directed to the furtherance of the common plan or purpose.'"80 An accused who is convicted for participating in the JCE "is guilty of the substantive crime or underlying offence committed, regardless of the role that he played in the enterprise."

On July 17, 1998, the Rome conference adopted the proposed Statute for a permanent International Criminal Court (ICC) with 120 voting in favor, 7 voting against (including the United States), and 21 abstentions.81 On April 11, 2002, the 60th ratification of the Rome Statute occurred, and the ICC came into existence on July 1, 2002. As of June 24, 2011, there are 115 state parties, and 139 states have signed the Rome Statute of the ICC,82 creating a standing tribunal with jurisdiction over individuals who commit genocide, crimes against humanity, war crimes, and eventually, crimes of aggression.83 The Rome Statute gives the ICC an expansive list of available theories of liability for individual criminal responsibility, and it provides as follows:

Id. at Art. 25(3) (emphasis added). Thus, the ICC articulates a theory of criminal liability under international law which permits it to hold individuals responsible not only for committing crimes but also for aiding, abetting, and assisting in the commission of crimes as well as the knowing or purposeful contribution to the commission or attempted commission of such crimes by a group acting with a common purpose.

In applying the JCE liability analysis, appellant's underlying conduct constitutes known, unlawful acts historically punishable and established before 1996.

3. Non-United States Domestic Terrorism Laws

There are a variety of definitions of terrorism in both domestic and international sources, but most of them entail politically motivated violence against civilians designed to coerce governments or intimidate civilian populations.84 It is the duty of this court to ascertain whether appellant's conduct, providing material support for terrorism, constituted an offense against the law of nations. In doing so, we apply the definition of terrorism in 2006 M.C.A. § 950v(b)(24), supra n. 41, and we consider the degree to which appellant's underlying conduct violated international standards defining crimes as shown by various national laws prohibiting terrorism. See Bin Laden, 92 F.Supp.2d at 220-21 (quoted at pp. 1272-74, supra).

While some nations have considerable experience with using laws to combat violence against civilians for political ends, after the attacks on September 11, 2001, many additional nations enacted criminal prohibitions against providing assistance to terrorist organizations and involvement in terrorist acts.85 UN Security Council Resolution 1373,86 Section 2(e) required all member states to establish as serious criminal offenses in domestic law any planning, preparation, support, and perpetration of terrorist acts, and report by the end of 2001 steps taken to implement this resolution. Id. Section 6. By the time the 2006 M.C.A. was enacted, providing material support for terrorism was recognized by various "members of the international community as being [an offense] against the law of nations,"87 as shown by their adoption of domestic laws prohibiting assistance to terrorist organizations or various levels of involvement in terrorist acts.88

Some nations have had prohibitions against offenses involving criminal organizations for many years,89 and such laws may also be available to punish terrorist crimes involving violence. Other nations have statutes specifically prohibiting aiding or assisting a terrorist organization or aiding in a terrorist act or similar offenses. The developments in anti-terrorism laws taking place in Canada, India, and Pakistan are briefly illustrated here.90

Canada's 2001 Anti-terrorism Act (2001 ATA), ¶ 83.01 defines "Terrorist Activity" in two ways, and "satisfying either part constitutes a `terrorist activity.'"91 First, it includes in Section 83.01(1)(a), "an act or omission that is committed in or outside Canada and that, if committed in Canada," is an offense under ten specified United Nations (UN) Conventions and Protocols relating to terrorism that the Canadian Government has signed and ratified.92 Second, the 2001 ATA, § 83.01(1) includes "(b) an act or omission, in or outside Canada, (i) that is committed (A) in whole or in part for a political, religious or ideological purpose, objective or cause, and" is intended to intimidate "the public or a segment of the public" or to compel "a person, a government or a domestic or an international organization to do or to refrain from doing any act . . . and (ii) that intentionally (A) causes death or serious bodily injury to a person by the use of violence," or that intentionally "(B) endangers a person's life, [or] (C) causes a serious risk to the health or safety of the public or any segment of the public" "The definition of `terrorist activity' includes conspiracy, attempt or threat to commit any act or omission that would fall within the definition of `terrorist activity', or being an accessory after the fact or counseling in relation to any such act or omission."93

Under the 2001 ATA, a terrorist group is defined as an entity that has as one of its purposes or activities the facilitating or carrying out of terrorist activities or any entity that associates with such a group.94 The entity is set forth in a list established by regulation.95 Being on the list does not itself constitute a criminal offence, although "it can lead to criminal consequences."96

After Indira Gandhi's assassination in 1984, India prohibited various terrorismrelated activities.97 The Terrorist and Disruptive Activities (Prevention) Act, No. 31 of 1985 and No. 43 of 1987 (1987 TADA), were Amended by Act 43 of 1993.98 The 1987 TADA punished "terrorist acts"99 and various offenses related to terrorist acts.100 Moreover, anyone who harbors or conceals a terrorist is criminally liable, as is anyone "who is a member of a terrorist gang or a terrorist organization." 1987 TADA, § 3(4). TADA lapsed in 1995; however, new cases continue to be initiated "based on allegations arising from the period when TADA was in effect." Kalhan, supra n. 97, at 150 (citations omitted). The Prevention of Terrorism Act, No. 15 of 2002 (2002 POTA), "came into force on October 24, 2001," and "remain[ed] in force for three years." Id. at 152 n. 245. The 2002 POTA criminalizes:

Id. at 155 (citing 2002 POTA § 3). The 2002 POTA broadly defines "terrorist act," duplicating many of the core offenses in the 1987 TADA, and adds organizational or association prohibitions. Id. at 155-57 (citations omitted). Subsequent legislation continued many of the important prohibitions contained in the 2002 POTA.101

For decades, the Pakistani legal system has punished acts of terrorism. "Under the Suppression of Terrorist Activities (Special Courts) Act, 1975 [ (1975 STA)], many times subsequently amended, special courts were" established to try suspects for terrorist offenses.102 An August 1997 Pakistan Law Commission Report noted that in mid-1997 in four provinces "some 18,625 cases were pending under" the 1975 STA. Id. Section 6 of the Anti-Terrorism Act, 1997 (1997 ATA) provides:

Various amendments addressed the Pakistani judiciary's procedural concerns about the 1997 ATA, and Pakistani terrorism law and procedures evolved.104 The Anti-Terrorism (Second Amendment) Ordnance, 1999 (Dec. 2, 1999) (1999 ATA), expanded the offenses cognizable by the anti-terrorism courts to include offenses of abetment, concealment, conspiracy, attempts, and facilitation of offenses.105 The Anti-Terrorism (Amendment) Ordnance or Act, 2001 (Aug. 15, 2001) (2001 ATA) further enlarged the class of cases under the jurisdiction of the terrorism courts. The 2001 ATA defines "terrorism" to be an offense if:

The 2001 ATA "stated that any person committing or linked to a terrorist act either in Pakistan or abroad" or who "train[ed] someone in the use of weapons or for terrorism" was subject to punishment.107 Pakistan also began to apply criminal sanctions against membership in specified organizations involved in terrorism. Kennedy, supra n. 103, at 403-04 (citing 2001 ATA § 11-A). Additional amendments changed the investigative procedures and the procedures at the antiterrorism courts. Id. at 408-10 (citations omitted). The Anti-Terrorism (Amendment) Ordnance, 2004 "increased the penalties for persons assisting terrorists in any manner."108

D. Prosecutions for Wrongfully Providing Aid or Support to the Enemy

The offense of aiding the enemy "is almost as old as warfare itself, and . . . may be found in the earliest of recorded military codes."109 On September 20, 1776, the Continental Congress enacted the American Articles of War of 1776, including Section XIII, Article 18, which punishes any person who provides relief of "the enemy with money, victuals, or ammunition," or who "knowingly harbor[s] or protect[s] an enemy." 1920 Winthrop, supra n. 23, at 967.

The court recognizes as a preliminary matter the occurrence of these events prior to the 1949 Geneva Conventions and 1950 Uniform Code of Military Justice era and look to these cases as historic precedent for the law of war. Comparison of the contents of 19th century military commission law of war charges and specifications with appellant's charges and specifications is one way of determining whether offenses similar to appellant's were already punishable. Some basic information about the contents of military commission charges and specifications before appellant's offenses is helpful in making this assessment.

1. Contents of Specifications

Under military law in the 1860s and today, "the charge designates the crime, or offence in law, as mutiny; the specification alleges or specifies the act, with time, place, and circumstance."110 Military law requires that each specification "must specify the material facts necessary to constitute the offence."111 However, "[t]he specification need not possess the technical nicety of an indictment at common law. The most bald statement of facts is sufficient, provided the legal offense itself be distinctly and accurately described; this should be done, if possible, in the words of the Article violated."112 When an accused was charged with both murder, and murder in violation of the laws of war, the dual charges recognized that a murder can violate both civil law and the laws of war and that the murder was not exclusively a civil crime.113 During the Civil War-era each specification of a charge was required to be complete and independent of other specifications and stand on its own as a separate criminal offense.114 They were required to allege the factual basis for the elements of the offense.115 Each finding of guilty for each specification must be supported by evidence, and the members of the court must vote on each specification.116 The members may amend the specification by making findings by exceptions and substitutions. Id. For example, if the absence of a breach of duty or allegiance is not in the elements and form specifications, the members are not required to assess this element before making their findings, and they are free to find enemy aliens with no such duty guilty of aiding the enemy. Compare n. 28, infra (listing elements of providing material support for terrorism) with 1920 Winthrop, supra n. 23, at 1023 (form charge and specification for "Guerilla warfare, in violation of the Laws of War" for "acting independently of" lawful belligerents, "did, in combination with sundry other persons similarly acting, engage in unlawful warfare against the inhabitants of the United States.").

2. 19th Century Irregular Warfare and Aiding the Enemy

In 1818, during the first Seminole War, General Andrew Jackson and the U.S. Army entered Florida, which at that time was neutral Spanish territory, in pursuit of Indian warriors. David Glazier, The Laws of War: Past, Present, and Future: Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int'l L. 5, 27 (2005) (citations omitted) Two British citizens, Arbuthnot and Ambrister, were aiding the Indian warriors. Id. (citation omitted). Following their capture, a special court,117 military commission,118 or court-martial119 was convened to try the two men. Arbuthnot was found guilty of, "Charge 1st. Exciting and stirring up the Creek Indians to war against the United States . . . [and] Charge 2d. [A]iding, abetting, and comforting the enemy, supplying them with the means of war," and he was sentenced to hang. Glazier, supra n. 113, at 28 (citations omitted). Ambrister was convicted of, "Charge 1st. Aiding, abetting, and comforting the enemy, supplying them with the means of war, he being a subject of Great Britain, at peace with the United States, and lately an officer in the British colonial marines . . ." and, "Charge 2d. Leading and commanding [Indians], in carrying on a war against the United States." Id. at 28 (citing Minutes of the Proceedings of a Special Court, H.Q. Div. of the South at 154-55, 164; H.Q. Div. of the South, G.O. (Apr. 29, 1818)). Colonel Winthrop criticized General Jackson for approving a harsher sentence than the tribunal adjudged on reconsideration.120 Birkhimer, however, considered General Jackson's actions to be lawful in every respect.121 Winthrop did not criticize the decision to charge Arbuthnot and Ambrister with aiding the enemy. 1920 Winthrop, supra n. 23, at 464-65.

The court takes no comfort in the historical context in which these events occurred or the ultimate disposition of these cases. We cite to these events for their historical occurrence as an embryonic effort of the United States to deal with the complexity of fighters in irregular warfare. In contrast, under the 2006 M.C.A., AUECs have significant due process and are not subject solely to the discretion of the executive. See n. 171 infra.

During the War with Mexico, "guerilla warfare became in fact a systematic mode of prosecuting hostilities sanctioned by the Mexican government." 1920 Winthrop, supra n. 23, at 783 n. 51 (citing G.O. 372, H.Q. of Army, 1847). Military commission-type "trials, however, were few; this branch of jurisdiction not then becoming fully developed." Id. at 832-33 (internal footnote omitted).

There were 4,271 documented military commission trials during the Civil War and another 1,435 during Reconstruction.122 A number of commissions tried individuals for being guerillas and for their conduct while a guerilla.123 The Civil War General Orders establishing military commissions were consistent with this position. On December 4, 1861, HQ, Dept. of the Missouri issued General Orders No. 13, ¶¶ II, III, IV, and VII which read:

In 1862, Major General (Maj. Gen.) Henry Halleck was the General-in-Chief of the Union Army and a leading international law scholar of his time.125 In General Orders No. 1, HQ, Dept. of the Missouri (Jan. 1, 1862) (G.O. 1),126 Halleck noted in Pt. II, Rule 5 that charges preferred before a military commission should be "`violation of the laws of war,' . . . in [such] cases we must be governed by the general code of war." G.O. 1, Pt. II, Rule 9 stated:

In an August 6, 1862 letter, Maj. Gen. Halleck asked Lieber to write a pamphlet addressing violent guerilla activity behind the lines. Halleck succinctly described the Union Army's problem:

Garner, supra n. 125, at 17. In August 1862, Lieber responded to Halleck's request with a pamphlet entitled, "Gue[ ]rilla Parties Considered with Reference to the Laws and Usages of War." Id. at 17. Dr. Lieber defined a "gue[ ]rilla party" as follows:

George B. Davis, Doctor Francis Lieber's Instructions for the Government of Armies in the Field, 1 Am. J. of Int. L. 14, 16 (1907) (quoting Francis Lieber, Miscellaneous Writings (1881)) (emphasis in original), http://www.jstor.org/stable/2186282. See also 1920 Winthrop, supra n. 23, at 783. Guerillas are known for "intentional destruction for the sake of destruction," and "general and heinous criminality . . . because the organization of the party being but slight and the leader utterly dependent upon the band, little discipline can be enforced." Davis, supra at 16. The concern was that "he that today passes you in the garb and mien of a peaceful citizen, may tomorrow, as a guerilla-man, fire your house or murder you from behind the hedge." Id. Lieber concluded, guerilla parties do not enjoy the full benefit of the law of war because after committing a violent act they blend back into the noncombatant population, and because they, "cannot encumber themselves with prisoners of war; they have, therefore, frequently, perhaps generally, killed their prisoners. . . thus introducing a system of barbarity which becomes [more intense] in its demoralization as it spreads and is prolonged." Id.

Lieber was the lead author of Army General Orders 100 (1863) (G.O. 100), which was subsequently styled the Lieber Code. See Francis Lieber, Instructions for the Government of Armies of the United States in the Field (Lieber's Instructions) 2 (1898). It represented one of the first comprehensive lists of the laws of war.127 On April 24, 1863, President Abraham Lincoln approved G.O. 100, and directed its publication, "for the information of all concerned." Lieber's Instructions, supra at 2. We address two categories of individuals described in G.O. 100 as law of war violators.

General Orders 100, § V, includes several articles that address the issue of loyalty, allegiance, or treason. See e.g., Lieber's Instructions, at 28-30 (G.O. 100, arts. 88-98). A "war traitor" or "traitor" is "a person in a place or district under martial law who, unauthorized by military commander, gives information of any kind to the enemy, or holds intercourse with him." Id. (G.O. 100, art. 90).128 Numerous Civil War and Philippine-era military commission specifications alleged violation of a duty of allegiance to the United States, or violation of an oath of allegiance.129 Those articles and specifications relating to a breach of loyalty or allegiance are not pertinent here because appellant and al Qaeda have no duty to the United States.130 Military commission trials for aiding the enemy-type offenses were not limited to such offenses.

General Orders 100, § IV addresses "armed enemies not belonging to the hostile Army," who unlawfully engage in violence and are therefore eligible for military commission trial, and it labels two of these categories, "Armed enemies not belonging to the hostile army" and "Armed Prowlers." G.O. 100, Articles 82 and 84. Those two articles provide:

The conduct described in G.O. 100, Articles 82 and 84 was exemplified by guerilla raiders "in Kansas and Missouri who simply slaughtered unarmed soldiers and civilians, including an infamous massacre in Lawrence, Kansas in 1863."131 "The guerilla fighting in Missouri produced a form of terrorism that exceeded anything else in the war. Jayhawking Kansas and bushwhacking Missourians took no prisoners, killed in cold blood, plundered and pillaged and burned . . . without stint." Id. (citation omitted).

The Lieber Code and Attorney General Speed's 1865 Opinion (1865 AG Opinion) state that such offenses committed in connection with membership in a guerilla band, or similar informal organization, violate the law of war. See Opinion of the Constitutional Power of the Military to Try and Execute the Assassins of the President, 11 Op. Atty. Gen. 297 (1865). Although the motivation for rape, robbery, murder, and theft may be personal gain, other crimes such as burning bridges, and destroying telegraph and railroad lines were clearly designed to aid or provide material support to the enemy and to impede the Union's ability to prosecute the war. Such offenses, if done by an unauthorized guerilla force, are traditional lawof-war violations.

The 1865 AG Opinion concerns the legality of the military commission trial of several individuals who conspired to assassinate President Lincoln. It supports a tradition of prosecution by military commission of offenses similar to aiding or assisting in the President's murder or providing material support for terrorism stating:

Id. at 298. The 1865 AG Opinion continued:

Id. at 312-14 (original emphasis deleted; emphasis added).

Violations of the rules regarding assistance to enemies are traditionally punished under the law of war, including "Infractions of [the rule forbidding trade or interchange with the enemy], by selling to, buying from or contracting with enemies, furnishing them with supplies, corresponding, mail carrying, passing the lines without authority, & c." 1920 Winthrop, supra n. 23, at 777. Rendering or attempting to render "material aid or information to the enemy . . . are among the most frequent of the offences triable and punishable by military commission." Id. (emphasis added).

Colonel Winthrop organized Civil War military commission offenses into three classifications. 1920 Winthrop, supra n. 23, at 839. Here, we are exclusively interested in use of military commissions for violations "of the laws and usages of war cognizable by military tribunals only."132 Domestic crimes and law-of-war offenses were both tried before the same commissions, acting as both martial law or military government tribunals and law-of-war commissions. The following law-of-war offenses were tried by Civil War military commissions:

1886 Winthrop, supra n. 111, vol. 2, at 71-72 (footnotes omitted). In 1912, Charles Howland, on behalf of the Office of The Judge Advocate, General, described numerous offenses against the law of war, and most involved aiding the enemy in one manner or another. Charles R. Howland, A Digest of Opinions of the Judge Advocates General of the Army 1070-71 (1912) (Howland); see also Davis at 310 n. 2, supra n. 118. Howland's description of law of war military commission offenses is similar to the list in Winthrop's 1886 Treatise.

Numerous Civil-War era military commission cases resulted in law of war convictions for aiding the enemy, and the following are illustrative examples:134 giving aid, assistance, presence, advice, counsel, or comfort to a party of armed men or joining a party of armed men, who damaged or destroyed railroad or telegraph property;135 providing combatants with clothing, horses, ammunition, firearms, tools, or other supplies, or a team to haul supplies, see e.g., I. Breckinridge, I. Giddings, W. Lisk, J. Sallie, and E. Wingfield, n. 134 supra, or attempting to do so, see e.g., J. Trimble, n. 134 supra; harboring and maintaining persons in rebellion against the United States;136 offering a horse, saddle, firearm, or money to another to take up arms against the United States, see e.g., W. Lisk, n. 134 supra; or buying for or delivering cattle to the Southern army, see e.g., n. 134 supra, S. Bontwell, I. Jones, and J. Montgomery.137

Guerilla activity and aiding guerillas violate the law of war and resulted in military commission convictions for offenses such as: unlawfully plundering an oxen, wagon, horse, or other property, see e.g., W. Kirk and S. Bontwell, n. 134 supra; forcing a loyal citizen to take an oath of allegiance to the Confederacy, see e.g., W. Kirk, n. 134 supra; taking a loyal U.S. citizen prisoner, see e.g., S. Bontwell, n. 134 supra; committing various acts of outlawry,138 and murdering or advising, aiding, and assisting in the murder of a loyal U.S. citizen.139

Aid to the enemy, in violation of the law of war, included providing advice, information, one's own person, or other services to assist the enemy. See e.g., n. 134 supra (listing cases). Commissions convicted defendants of transgressing the laws of war by wrongfully taking or inciting, inducing, or procuring others "to take up arms and to commit acts of hostility" against the forces or property of the United States as an insurgent, outlaw, guerilla, bushwhacker or otherwise,140 for acts of hostility against U.S. forces;141 and for informing the enemy "where Union men lived and encouraging the enemy" to harm them to drive them from their homes or to coerce "them into the service of the Southern Army," see e.g., I. Jones, n. 134 supra.

Civil War military commissions, trying violations of the law of war, were not limited to cases involving accused that resided inside the lines or within occupied states.142 For example, in May 1865, T. Hogg and six others were convicted of a single specification and charge of "Violation of the laws and usages of civilized war."143 The seven men were "commissioned, enrolled, enlisted or engaged" by the Confederate Government, before they went aboard the "U.S. merchant steamer Salvador," which was in the port of Panama, New Granada. See n. 143, at 674. They were "in the guise of peaceful passengers," and lacked "any visible mark or insignia indicating their true character as enemies." Id. They were secretly armed and intended to capture the Salvador, secure the passengers and crew, and use her for "a cruiser to prey on the commerce of the citizens of the United States." Id. After a legal review by the Army Judge Advocate General, their convictions for violations of the laws of war were "approved and confirmed." Id. at 679-81, 650-53, 905.

As Attorney General Speed explains at p. 58, ante, the offense against the law of war is complete when these individuals joined the guerilla band. Of course, some action is usually required to manifest that they have joined the guerilla band, such as "taking up arms," providing advice on how to destroy trains or telegraphs, or providing their presence on a raid. See p. 58, supra. A person can also violate the law of war by providing assistance to a guerilla band, and Civil War military commissions punished numerous offenders for providing a wide array of such assistance. These examples of Civil War-era military commission convictions for providing support or aid to insurgents and guerillas illustrate the long-standing prohibitions against conduct similar to appellant's aid to al Qaeda.

3. The Philippine-American War, 1899-1902

General Orders No. 100 (1863), the Lieber Code, continued in force as the practical and effective "rule of conduct to which every officer understands that he must conform" during the Philippine-American War.144 It provided for punishment of those who engaged in unauthorized hostilities. 57th Cong., 1st Sess., Sen. Doc. No. 205, Part 1 (1902 Sen. Doc.) p. 29 (1902) (quoting Article 82 of the Lieber Code at p. 57, supra).

During the Philippine war, numerous residents of the Philippines were convicted of various violations of the laws and usages of war, such as: constituting themselves as a "band of armed prowlers," and damaging railroad track, a public highway, and telegraph wires, see e.g., D. Noul and 13 others; soliciting or collecting and providing money, food, clothing, information, and other items to the insurgents, see e.g., Julian Confesor; F. Morales; inciting, procuring, aiding, abetting, ordering, and commanding two native policemen to murder a U.S. Army soldier, which they did, see e.g., Julian Confesor; collecting and transmitting money, clothing, bolos, cigarettes, 20 persons (more or less to become members of the bands of outlaws), and other articles to a native outlaw engaged in guerilla warfare against the United States, see e.g., F. Trinidad; and becoming an active member in an organization that assists and supports the insurgent forces, and by contributing and collecting money, food, clothing, and tobacco or other supplies to the organization for the insurgent forces, see e.g., Juan Confesor and A. Jiloca.

Conduct and not residency is the focus of whether a law of war offense involving guerilla activity has been committed.145 In a memorandum affirming the commission conviction of D. Noul and 13 others, the reviewing authority noted that the permanent residence of the insurrectionists is irrelevant stating, "Under the laws of war, armed prowlers whether they permanently reside within or, residing elsewhere, steal within the lines of an occupying army, and there [damage public property] are not entitled to the privileges of prisoners of war." 1902 Sen. Doc., supra n. 144, at 80. Moreover, ". . . all those who order or cause the same to be done or connive at or secretly aid and assist therein will take warning that regard for the helpless and noncombative population . . . whose lives are put in jeopardy by the destruction of [public property] . . . will make unavoidable" the imposition of the most severe penalties upon those who are found guilty. Id. (emphasis added).

4. World War II Era

The extent of Nazi and Japanese outrages against civilian populations, as exemplified at Auschwitz, Nanking, and the Philippines, compelled the Allies to create a legal structure to prosecute not only those who personally committed atrocities but also those who supported such large scale war crimes.

Seven months after the Japanese attack on Pearl Harbor and the subsequent entry of the United States into the war, President Franklin Roosevelt proclaimed that enemy belligerents who "enter or attempt to enter the United States," and who commit, attempt, or prepare to commit, "hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals." Quirin, 317 U.S. at 22-23, 63 S.Ct. 2 (quoting Proclamation No. 2561, 7 Fed. Reg. 5101 (July 2, 1942)). On the same day, President Roosevelt, acting as President and Commander in Chief, appointed a military commission and directed it to try four German saboteurs for "offenses against the law of war and the Articles of War." Quirin, 317 U.S. at 22, 63 S.Ct. 2.

"On July 3, 1942, the Judge Advocate General's Department of the Army prepared" and provided to the Commission four charges and supporting specifications against the captured saboteurs: violation of the law of war;146 "relieving or attempting to relieve, or corresponding with or giving intelligence to the enemy" in violation of Article 81 of the Articles of War; spying in violation of Article 82; and conspiracy to commit the first three offenses. Id. at 23, 63 S.Ct. 2.

The Court denied the saboteurs' request for habeas relief solely on the grounds that Specification 1 of Charge I "alleged an offense which the President is authorized to order tried by military commission." Id. at 48, 63 S.Ct. 2. In Quirin, the Court discounted the arguments of the defendants that they had not actually committed any damage to the United States and did not invade an area under active military operations stating:

Even before the end of the war in Europe was in sight, Stalin, Churchill, and Roosevelt released the Moscow Declaration on November 1, 1943, which addressed the need to hold Nazi war criminals responsible for their crimes.148 In a series of meetings, the United Nations, as President Roosevelt styled the alliance in that document, worked out specific details on how the Nazis would be tried. On August 8, 1945, after long negotiation, they produced a document known as the London Charter.149

Article 9 of the London Charter empowered the tribunal to "declare groups and organizations [to be] criminal organizations" and then, under Article 10, to take individuals to trial for membership alone in one of those organizations. 1 Trial of the Major War Criminals Before the International Military Tribunal 255 (1947). The tribunal addressed the scope of membership liability or organizational guilt, and described the criminal organization's essence as being "bound together and organized for a common purpose." Id. at 256. The criminal group must be "formed or used in connection with the commission of crimes denounced by the Charter." Individuals are not subject to criminal liability for membership of the organization if they have "no knowledge of the criminal purposes or acts of the organization," or were compelled to become members, "unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter." Id. With these restrictions in mind, "[m]embership alone is not enough to come within the scope of these declarations."

The tribunal, in effect, limited liability to two groups within the criminal enterprises: (1) those "who became or remained members of the organizations with knowledge that it was being used for the commission of acts declared criminal" (i.e., war crimes), and (2) those "who were personally implicated as members of the organizations in the commission of such crimes." Quincy Wright, The Law of the Nuremberg Trial, 41 Am. J. Int'l L. 38, 70 (1947) (citing Judgment at 256, 262, 266). Additionally, the tribunal "considered criminal responsibility an individual matter," and gave "the benefit of the doubt to the accused." Id. Finally, "no person could be convicted unless as an individual he had conspired in criminal activities or purposes." Id. Even with these judicial limitations, it is clear that the concept of organizational guilt employed at Nuremberg is similar to providing material support for terrorism under the M.C.A. See M.M.C., Part IV, ¶ 6(25)b, supra p. 29 (listing elements for providing material support for terrorism).

Execution of the Moscow Declaration and London Agreement was entrusted to the Allied Control Council (ACC). On December 10, 1945, acting as the Military Government of Occupied Germany, the ACC adopted Control Council Law No. 10.150 The International Military Tribunal (IMT) "declared criminal the Leadership Corps of the Nazi Party, the Gestapo and S.D.151 (intelligence agency), which had been treated together by the Prosecution, and the S.S." 152

The United States conducted 12 trials with multiple defendants in Germany under the authority of Control Council No. 10, which are known as the Nuremberg Military Tribunals (NMT). These were considered international tribunals administering international law.153 At the NMT, 177 defendants were tried to verdict, and 142 were convicted. Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials under Control Council No. 10 (Taylor Report) 91 (Aug. 10, 1949). Although the concept of organizational guilt was not used for the hundreds of thousands of people who were potentially liable under the London Charter and the decisions of the IMT, a significant number of businessmen, doctors, and jurists were tried by military tribunals in the American Occupied zone for their membership in these four criminal organizations. Taylor Report, supra at 93 (87 defendants were tried for membership offenses, 74 were convicted of a membership charge among other charges, and 10 were convicted solely of a membership charge). See also Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said, 109 Colum. L.Rev. 1094 (2009) (discussing charging decisions for membership offenses).

The case of Mathias Graf is an example of a case with a conviction solely of a membership offense. 4 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10 at 584-85 (1947). Graf was a defendant tried as part of the Einsatzgruppen cases. He was a noncommissioned officer who never commanded a unit. Id. at 584. Graf's unit, Einsatzkommando (Kommando) 6, participated in executions and "liquidating operations," which constituted crimes against humanity and war crimes. Id. at 585. However, he was found not guilty by the NMT of those offenses, because the tribunal found lacked proof that he was present during or participated directly in the executions, and he was not in a position to protest against them. Id. The tribunal declined to presume that he had taken part in planning operations. Id. The tribunal did find, however, that he was aware of at least some of the illegal acts committed. Id. The tribunal found him guilty of membership in the SD (Der Sicherheitsdienst), found the mitigating circumstance that "his membership in the SD was not without compulsion and constraint," and sentenced him to time served. Id. at 587.

By way of example, Doctor Helmut Poppendick was Chief Physician of the Main Race and Settlement Office, Chief of the Personnel Office in Grawitz, an active duty army surgeon, a lieutenant colonel in the SS, and a colonel in the Waffen SS. 2 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10 at 186, 248-49 (1951). He was acquitted of war crimes and crimes against humanity. Id. at 252-53. However, the NMT noted that Poppendick "remained in the SS voluntarily throughout the war, with actual knowledge of the fact that organization was being used for the commission of acts now declared criminal . . . He must, therefore, be found guilty." Id. at 253. Poppendick was convicted solely of membership in a criminal organization and sentenced to imprisonment for 10 years. Id. at 299. The Supreme Court denied writs of habeas corpus and prohibition. Brandt v. United States, 333 U.S. 836, 68 S.Ct. 603, 92 L.Ed. 1119 (1948). See also Hamdan, 548 U.S. at 696, 126 S.Ct. 2749 (Thomas and Scalia, JJ., dissenting) (citations omitted).

"Konrad Meyer-Hetling was the chief of the planning office within the Staff Main Office." 5 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10 at 156 (1950). He was a professor and scientist of agriculture who worked part time developing the "General Plan East" that was a "proposed plan for the reconstruction of the East." Id. The NMT found that there was no evidence to support the assertions that Meyer-Hetling's plan was the cause of the child kidnappings, abortions, reproductive interference and general Germanization of the East, and that his plan did not contain anything incriminating. Id. at 156. The NMT found him guilty of count three, membership in a criminal organization, namely, that he was a member of the SS, id. at 157, and sentenced him to time served. Id. at 165.

In addition to prosecuting membership in a criminal organization as a separate and distinct crime, the NMT also found defendants guilty of war crimes and crimes against humanity for their support of criminal organizations. In the Flick Case, defendants Flick and Steinbrinck were charged in count four with committing "war crimes and crimes against humanity. . . in that they were accessories to, abetted, took a consenting part in, were connected with plans and enterprises involving, and were members of organizations or groups connected with: murders, brutalities, cruelties, tortures, atrocities and other inhumane acts. . . ." 6 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10 at 23 (1952). The indictment alleged that the defendants, as members of the group "Friends of Himmler," "worked closely with the SS, met frequently and regularly with its leaders, and furnished aid, advice, and support to the SS, financial and otherwise." Id. The Tribunal found that the "gist of count four is that . . . Flick and Steinbrinck with knowledge of the criminal activities of the SS contributed funds and influence to its support." Id. at 1216. Flick's monetary contributions began long before the criminal activities of the SS were widely known, and it was not proven that the money he contributed was directly used for criminal activities. Id. at 1220. The NMT concluded that Flick and Steinbrinck "played but a small part in the criminal program of the SS." Id. at 1222. Still, the Tribunal found that the criminal character of the SS "must have been known," and that how the money was spent was "immaterial." Id. at 1221. The Tribunal found Flick and Steinbrinck guilty of count four, committing war crimes and crimes against humanity by supporting the criminal organization responsible for such acts. Id. at 1221-22.

The NMT held that where clear crimes against humanity and war crimes were committed, an "organization which . . . is responsible for such crimes can be nothing else than criminal. One who knowingly by his influence and money contributes to the support thereof must, under settled legal principles, be deemed to be, if not a principal, certainly an accessory to such crimes." Id. at 1217. The NMT dismissed the argument that the defendants "could not be liable because there had been no statute nor judgment declaring the SS a criminal organization and incriminating those who were members or in other manner contributed to its support." Id. at 1217. The NMT further found that Steinbrinck did not seek admission into the SS; his membership was honorary; he only had two official tasks, neither of which were criminal in nature; he had "no duties, no pay, and only casual connection with SS leaders;" and that his activities did "not connect him with the criminal program of the SS." Id. at 1221-22. Nevertheless, the NMT found Steinbrinck guilty of membership in an organization declared criminal. Flick was sentenced to seven years confinement and Steinbrinck was sentenced to five years. Id. at 1223.

Similarly, in Einsatzgruppen, the NMT tried members of Einsatz units for a large number of murders, and noted that:

5. Army 1914 and 1956 Manuals

In 1914, the United States War Department "replaced General Orders No. 100 with an army field manual entitled `The [Rules] of Land Warfare' which, updated, is still in force."155 The purpose of the 1914 Manual was to provide authoritative guidance to military personnel on customary and treaty law applicable to the conduct of warfare on land. 1914 Manual at 3, 11-13. The 1914 Manual ¶¶ 369, 371, and 373 permit prosecution as war criminals of individuals who engage in hostilities without qualifying as lawful combatants or privileged belligerents stating:

In 1942, the Supreme Court cited the 1914 and 1940 Rules of Land Warfare as the War Department's guidance to the Army on war crimes. See Quirin, 317 U.S. at 33-34, 63 S.Ct. 2. In 1956, the U.S. Army updated the 1940 version of the Rules of Land warfare with Field Manual 27-10, The Law of Land Warfare (1956 Manual). The 1956 Manual at ¶¶ 502-504 listed grave breaches of the Geneva Conventions and a representative list of other war crimes. At ¶ 499 it defines "the term `war crime'" to be "the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime." Like the 1914 Manual, the 1956 Manual permits prosecution of unlawful combatants or unprivileged belligerents as war criminals stating:

The 1956 Manual provides for punishment of those who assist in illegal hostilities stating in 1182 that persons culpable under 111180 and 81 "who have attempted, committed, or conspired to commit hostile or belligerent acts are subject to the extreme penalty of death because of the danger inherent in their conduct. Lesser penalties may, however, be imposed."

E. Ex Post Facto

The Constitution's Ex Post Facto Clause was understood by the Founders to be among the most significant rule of law guarantees in the Constitution. In The Federalist, Alexander Hamilton stated:

Any law which removes defenses, imposes liability or otherwise makes more severe the punishment for past conduct is prohibited as an ex post facto application of the laws. Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Over 200 years ago, Justice Chase described four categories of ex post facto laws stating:

International law recognizes the legal maxim "nullum crimen sine lege" as a general principle of justice. 22 Trial of the Major War Criminals Before the International Military Tribunal 462 (1948). The perpetrator "must know that he is doing wrong and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished." Id. at 462. Like the Constitution's Ex Post Facto Clause, the maxim's goal is to prevent punishment of an individual for acts which he or she "reasonably believed to be lawful at the time of their commission. It strains credibility to contend that the accused would not recognize the criminal nature of the acts alleged in the indictment."158 Similarly, the Special Court for Sierra Leone ruled:

Changes to judicial tribunals, venue, and jurisdiction do not violate the Ex Post Facto Clause of the Constitution. Creation of a new court to assume the jurisdiction of an old court does not implicate ex post facto prohibitions so long as the "substantial protections" of "the existing law" are not changed to the prejudice of the accused. See Duncan v. Missouri, 152 U.S. 377, 382-83, 14 S.Ct. 570, 38 L.Ed. 485 (1894). Transfer of jurisdiction from one court or tribunal to another does not violate ex post facto prohibitions. As the Supreme Court explained:

Hughes Aircraft Co. v. United States, 520 U.S. 939, 951, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997) (internal citations and quotation marks omitted; emphasis in original). The Supreme Court has upheld post-offense procedural changes against ex post facto challenges "even if application of the new rule operated to a defendant's disadvantage in a particular case." Landgraf v. USI Film Products, 511 U.S. 244, 275 n. 28, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (citations omitted).

F. Conclusion

When the Supreme Court in Quirin analyzed whether the military commission had jurisdiction to adjudicate the cases of the Nazi saboteurs, the Court examined the charged offenses, noting the Congress incorporated by reference through the 15th Article of War, "as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war." 317 U.S. at 30, 63 S.Ct. 2 (internal citation omitted). "Congress had the choice of crystallizing . . . every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts."[161] It chose the latter course." Id.

In the instant case, Congress exercised authority derived from the Constitution to define and punish offenses against the law of nations by codifying an existing law of war violation into a clear and comprehensively defined offense of providing material support to terrorism.162 The President, through the Secretary of Defense, further defined the procedures for military commissions in the M.M.C. in a manner that is similar to the Manual for Courts-Martial (MCM). Congress's stated purpose for the 2006 M.C.A. was to "codify offenses that have traditionally been triable by military commissions." In this case, we find, in defining and punishing providing material support for terrorism in the 2006 M.C.A., that is precisely what Congress has done. Congress did not create a new offense, providing material support for terrorism was an existing law of war offense since at least 1996.

For purposes of compliance with the Define and Punish Clause of the Constitution, the standard of review for whether an offense as codified by Congress violates the law of war is not clearly established by applicable precedents. However, we find that the evidence supporting the 2006 M.C.A. offense of providing material support for terrorism as a pre-existing law of war offense far exceeds even the "substantial showing" standard advanced in Hamdan that "the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war."163

When appellant's charged offenses began in 1996, the underlying wrongful conduct of providing material support for terrorism, as now defined under the 2006 M.C.A., was a cognizable offense under the law of war. Crimes equivalent to providing material support for terrorism had been recognized in various United Nations Security Council Resolutions, regional conventions, and the domestic criminal codes, among other authorities. Military commission trials in the 19th and 20th centuries involved violations of the law of war similar to wrongfully providing material support to terrorism. Many of these offenses violated the laws and customs of war because they engaged in an unlawful belligerency, used an illegal means of warfare, or targeted protected persons. Additionally, the conduct of providing assistance to others with knowledge that those they assist, have, or intend to violate the laws and customs of war has long been tried as a law of war offense.

In light of our holding that providing material support for terrorism is a codification of a pre-existing law-of-war violation, we conclude that the Ex Post Facto Clause of the Constitution was not violated by appellant's conviction for providing material support to terrorism under the M.C.A. of 2006.

VIII. EQUAL PROTECTION

The military commission judge ruled that the 2006 M.C.A. properly established jurisdiction over appellant and his offenses, notwithstanding its jurisdictional limitation to aliens. On appeal, appellant disputes the military commission judge's ruling by asserting that he possesses a "fundamental right" to equality in criminal proceedings arising from a constitutional entitlement to identical trial forum and procedural treatment to that enjoyed by U.S. citizens. Appellant preserved this issue by litigating it at trial. He argues that any deviation from such equal treatment violates the Fifth and Fourteenth Amendments and the Supreme Court holding in Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), and is only permissible for reasons sufficient to survive a strict scrutiny analysis. We disagree and decline to adopt the level of scrutiny urged by appellant.

Appellant's military commission satisfied the equal protection guarantees of the U.S. Constitution and is consistent with the ruling in Boumediene.164 We agree with the military commission judge that the M.C.A.'s restriction to prosecution of AUECs does not constitute a prohibited invidious discrimination against aliens, and appellant does not have a fundamental constitutional right to criminal procedures identical to those of U.S. citizens.165

A. Jurisdiction of Article I Courts

Congress established the M.C.A. in an exercise of its constitutional authority under Article 1, sec. 8, cl. 10 to "define and punish . . . offenses against the law of nations." In this regard, the legislature provided the executive an additional forum for the prosecution of such offenses. That such executive discretion is based, in part, on a distinction between U.S. citizens and noncitizens is entirely consistent with the Supreme Court's observation that the Constitution's framers had not "supposed that a nation's obligations to its foes could ever be put on a parity with those to its defenders."166

The Supreme Court has recognized that U.S. military commissions and U.S. occupation courts are necessary to address "many urgent governmental responsibilities related to war. They have been called our common law war courts. They have taken many forms and borne many names. Neither their procedure nor their jurisdiction has been prescribed by statute. It has been adapted in each instance to the need that called it forth." Madsen v. Kinsella, 343 U.S. 341, 346-47, 72 S.Ct. 699, 96 L.Ed. 988 (1952) (internal footnotes omitted) (citing In re Yamashita, 327 U.S. 1, 18-23, 66 S.Ct. 340, 90 L.Ed. 499 (1946)). In direct contrast, the 2006 M.C.A. is an explicit statutory prescription with a further prescribed jurisdictional ambit of AUECs committing offenses in the context of and associated with armed conflict. See n. 48, 49, and 54.

Court-martial jurisdiction, like military commission jurisdiction, is based on Article I of the Constitution. In recent years, Congress has expanded court-martial jurisdiction over more offenses and categories of persons. See Loving v. United States, 517 U.S. 748, 752-54, 760-68, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996) (discussing history of the expansion of court-martial jurisdiction and stating "[o]ver the next two centuries, Congress expanded court-martial jurisdiction"); see also 10 U.S.C. § 802 (2011) (listing categories of persons subject to court-martial jurisdiction). For example, courts-martial can now try offenses without regard to the offense's service connection.167 Courtsmartial can and do prosecute federal crimes such as "counterfeiting (18 U.S.C. § 471) and various frauds against the Government not covered by Article 132," UCMJ. 2008 MCM, Part IV, ¶ 60c(4)(b). Courts-martial routinely assimilate state criminal codes for offenses occurring on military installations.168 See 10 U.S.C. § 934. Moreover, courts-martial are not necessarily restricted or limited by other constitutional requirements applicable to Article III Courts.169

Appellant's theory that trial of a broad array of criminal and law of war offenses is not constitutionally permitted for jurisdictional reasons in Article I courts is without merit. Like courts-martial, there is no compelling reason not to permit properly constituted military commissions to try such offenses.

B. Due Process

We recognize that the life, liberty, and property of persons tried before an American court or tribunal established under our Constitution are protected by due process.170 Analyzing the comparative rights and protections afforded by the M.C.A. in comparison to the UCMJ and criminal defendants in domestic federal District Courts, we are satisfied that the equal protection element of the due process clause has been met in this case.171

C. Boumediene and Equal Protection under the Fifth Amendment

Appellant cites Boumediene in arguing that all of the constitutional due process and equal protections must apply to appellant's military commission. We find appellant's reliance on Boumediene is not persuasive. Boumediene decided the narrow issue of whether federal courts may entertain habeas petitions from noncitizens detained outside the United States. We decline to adopt appellant's broad application of the Boumediene decision.

Our reading of Boumediene suggests that, far from an intentionally broad extension of constitutional due process rights to AUECs, the Court intended to address the more fundamental issue of "the Constitution's separation-of-powers structure." Boumediene, 128 S.Ct. at 2246; see also Rasul v. Bush, 542 U.S. 466, 485-86, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (Kennedy, J., concurring).172

The Boumediene Court held that the Suspension Clause of "Art. I, § 9, cl. 2 of the Constitution[173] has full effect at Guantanamo Bay" and "[p]etitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention." Boumediene, 128 S.Ct. at 2262. Discussing the Insular Cases,174 the Supreme Court identified factors175 relevant to determining whether a Constitutional provision should apply to noncitizens outside of the United States and concluded extension of constitutional protections depends upon "the `particular circumstances, the practical necessities, and the possible alternatives which Congress had before it' and in particular, whether judicial enforcement of the provisions would be `impracticable and anomalous'"176

The Boumediene Court recognized that there was no historical precedent that noncitizens located overseas have rights under the U.S. Constitution stating, "It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution." Boumediene, 128 S.Ct. at 2262. The Court distinguished Boumediene from other habeas cases involving enemy aliens held abroad and those tried by military commissions for war crimes by emphasizing that the proceedings in those cases all had an adverarial structure, which included counsel to defend the accused.177

Citing the Insular Cases, the Court explained that the central issue it previously confronted was not whether constitutional protections were universally applicable, but rather "which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements." Id. at 2254-55 (quoting Balzac v. Porto Rico, 258 U.S. 298, 312, 42 S.Ct. 343, 66 L.Ed. 627 (1922)). Contrary to appellant's assertion, the Court expressly stated that the doctrine arising from its precedents did not practically extend constitutional protections "always and everywhere." Id. at 2255. Instead, the Court noted that it did so "sparingly and where it would be most needed." Id. at 2255 (citation omitted). We, therefore, view Boumediene and related cases as recognizing a limited right to judicial review of extraterritorial detention of noncitizens.

Most recently, our superior court noted that any argument equating a general right to habeas corpus "with all the accoutrements of . . . domestic criminal defendants is highly suspect." Al-Bihani v. Obama, 590 F.3d 866, 876 (D.C.Cir.2010). The Al-Bihani Court elaborated as follows:

Id. at 877. In fact, the Al-Bihani opinion appeared to reject an extension of equal protection to noncitizen military detainees, when the court concluded that procedural protections of American citizens or legal residents "are likely greater than the procedures to which non-citizens seized abroad during war are entitled." Id. at 877 n. 3.

We agree with the military commission judge's determination in appellant's case that the Supreme Court's opinion in Boumediene does not reflect a broad, wholesale expansion of constitutional due process rights to military detainees and, by extension, to AUECs. We also agree with the military commission judge's further determination that, under the circumstances of the case, extending constitutional equal protection guarantees to AUECs tried before military commissions would be "impracticable and anomalous."

Appellant cites to no precedent comprehensively extending equal protection or other constitutional due process rights to noncitizens tried by military commissions, either inside or outside the United States. Likewise, we find none. We are guided by the Supreme Court's admonition that "any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution." Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). To read the Boumediene opinion to extend Fifth Amendment equal protection rights to AUECs tried before military commissions would be an exceptionally broad and incautious expansion of constitutional rights. We find, therefore, that AUECs are not under all circumstances fundamentally entitled to constitutional equal protection.

D. The 2006 M.C.A. and the Equal Protection Component of the Due Process Clause of the Fifth and Fourteenth Amendments

Assuming arguendo that AUECs tried before military commissions may, under some circumstances, possess a constitutional due process right of equal protection, we will now consider appellant's assertion that his equal protection rights were violated.

The case before this court today involves a federal statute implicating the Fifth, not Fourteenth, Amendment. While the analysis and approach of equal protection claims under the Fifth and Fourteenth Amendments are the same, the Supreme Court has recognized that there are special circumstances where federal interests compete with equal protection.178 In those cases where the Court found competing national interests, they found "special deference to the political branches of the Federal Government [are] appropriate." Id. (citing, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 101-102 n. 21, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976)). The Supreme Court held that:

In Holder v. Humanitarian Law Project, 561 U.S. ___, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010), the Supreme Court considered challenges of 18 U.S.C. § 2339B, which makes it a federal crime to provide "material support or resources to a foreign terrorist organization." Humanitarian Law Project (HLP) argued the statute violated the Fifth Amendment's Due Process Clause because of vagueness, and contravened HLP's First Amendment rights to freedom of speech and association. Id. at 130 S.Ct. at 2716-17. The Supreme Court emphasized the importance of not substituting the Court's evaluation of evidence for that of the legislative branch, recognizing that the legislative and executive branch's expertise and authority "do not automatically trump the Court's own obligation to secure the protection that the Constitution grants to individuals. But when it comes to collecting evidence and drawing factual inferences in this area, the lack of competence on the part of the courts is marked," and appropriate "respect for the Government's conclusions" is warranted. Id. at 2727 ("One reason for that respect is that national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess") (internal quotation marks and citations omitted).180 The Court emphasized, the "sensitive interests in national security and foreign affairs at stake," id. at 2728. The Holder Court, id. at 2731, concluded:

Bounded by the Constitution of the United States, Congress has the power to define and punish offenses against the laws of nations and to promulgate laws related to national defense, war power, establishment of courts and tribunals, and the treatment of aliens. U.S. Const., art. I, § 8. Individual states subject to the Fourteenth Amendment do not share these powers or responsibilities. This is a significant and dispositive distinction.

As our focus in the instant case is on equal protection under the Fifth Amendment, we decline to opine as to what other, if any, specific constitutional due process rights beyond habeas corpus might, under other circumstances, properly be afforded to AUECs.

E. Legal Test

Appellant argues that discriminatory language of the M.C.A. statute is subject to strict scrutiny because it infringes on his "fundamental rights" to due process. Appellant contends that the alienage distinction was designed to "prevent the disfavored and disenfranchised group from using the political process to protect itself" and that "[l]egislation such as the M.C.A. aimed solely at the politically powerless attracts strict scrutiny." Appellant cites to cases including Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988), Plyler v. Doe, 457 U.S. 202, 216-17, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Griffin v. Illinois, 351 U.S. 12, 15-17, 76 S.Ct. 585, 100 L.Ed. 891 (1956), to make his point that such a fundamental right as equality in criminal proceedings is subject to strict scrutiny. Appellant's Brief 26-30.

Appellant's cited authority is not persuasive and is readily distinguishable. None of the cases he cites involve competing national interests, all of the cases were tried in Article III courts, all of the cases involved the application of the Fourteenth Amendment, and only one case, Plyler, involves an alien party.181 Nothing in those precedents suggests that the Supreme Court intended courts to apply heightened scrutiny in cases involving disparate treatment by the federal government of nonresident alien enemy combatants captured abroad.

On the contrary, precedent clearly mandates that deference be given to congressional classifications based on alienage where foreign policy interests are strongly implicated. In United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir.1995), appellants challenged their conviction under the Hostage Taking Act, 18 U.S.C. § 1203, claiming that it violated the Equal Protection Clause of the Fifth Amendment by "impermissibly classifying offenders and victims on the basis of alienage." Id. at 1470. The court held that Congress's plenary control over immigration legislation and the accompanying low level of judicial review "dictate a similarly low level of review here, where foreign policy interests are strongly implicated." Id. at 1474. In fact, the 11th Circuit expressly held that "congressional classifications based on alienage are subject to rational basis review."182

In additional to congressional authority, the President traditionally has had broad authority in matters relating to enemy aliens. In 1950, the Supreme Court stated:

Eisentrager, 339 U.S. at 774-75, 70 S.Ct. 936. We find, therefore, that the strong foreign policy implications associated with the war on terror, coupled with the recognition of the President's power over enemy aliens in times of war and Congress's power to enact legislation pertaining to aliens and its war powers, dictate the M.C.A.'s alienage distinction be reviewed under the deferential rational basis standard. See pages 1265-74, supra. (discussing authority of Congress and the Executive in the areas of war powers and foreign affairs).

F. Application of Rational Basis Review

Rational basis analysis requires a two-step inquiry: (1) whether there is a legitimate government purpose identifiable, regardless of actual motives; and (2) whether a rational basis exists to believe that the legislation would further that purpose. United States v. Ferreira, 275 F.3d 1020, 1026 (11th Cir.2001) (citing Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir.2000)).

Appellant argues that the M.C.A.'s legislative history suggests that Congress intended to create a discriminatory regime of lesser criminal procedures meant to punish aliens. The M.C.A.'s legislative history recognizes that persons tried under the M.C.A. may be captured on the battlefield under conditions where widely-used police investigative procedures cannot be applied. Appellant's assertions that Congress engaged in pernicious discrimination against aliens is not persuasive and wholly irrelevant so long as there is a "conceivably rational basis, [regardless of] whether that basis was actually considered by the legislative body." Ferreira, 275 F.3d at 1026 (noting that "the actual motives of the enacting governmental body are entirely irrelevant").

The first prong of the inquiry, whether a legitimate government interest exists, is easily satisfied as Congress enacted the M.C.A. to create a forum and a process by which to bring to justice foreign unlawful combatants whose purpose is to terrorize American citizens. There can be no more legitimate purpose of a government than to protect its citizens from its enemies. The second prong of the test, whether there is a rational basis to believe that the legislation will further the legitimate purpose, is met as Congress and the President have rightly determined that the treatment of foreign detainees captured on the battlefield in a foreign land has foreign policy implications, for which they are responsible. The legislation distinguishes between alien unlawful enemy combatants and the rest of the world and has a rational connection to its purpose.

Reviewing the military commission judge's ruling de novo, we agree that the Fifth Amendment's equal protection component is not applicable to AUECs, who are tried at Guantanamo, Cuba, under the M.C.A. Nevertheless, after performing a functional analysis under Boumediene, we conclude that Congress established reasonable procedures in the M.C.A. for protecting the rights of AUECs and preserving national security. The M.C.A. provides due process, which is similar to the procedural protections received by defendants in U.S. District Courts, by accused U.S. military personnel at courtsmartial, and by accused persons tried before international tribunals under the sponsorship of the United Nations.

Appellant was represented throughout his trial by counsel and received a full and fair trial. He was found not guilty of the majority of the charges. He was sentenced to serve only a few months of confinement after his trial, and has been returned to Yemen. We decline to find that appellant, as an unlawful enemy alien combatant, is entitled to more due process under the Fifth Amendment than he received.

We find, therefore, that Congress had a rational basis for the disparate treatment of aliens in the M.C.A. and that such disparate treatment does not violate the equal protection component of the Fifth Amendment.

IX. CONCLUSION

Appellant's assigned errors and legal arguments are without merit. Pursuant to the 2006 M.C.A., these proceedings, the findings, and appellant's sentence are the product of lawful, Congressionally-created processes, "affording all the judicial guarantees of all civilized peoples." See supra n. 8.

The findings and approved sentence are correct in law and fact and no error materially prejudicial to the substantial rights of the Appellant occurred. 2009 M.C.A. §§ 950a(a) and 950f(d). Accordingly, the findings and sentence are affirmed.