PRICE, Judge:
I. INTRODUCTION .........................................................1155II. PROCEDURAL HISTORY ...................................................1155III. JURISDICTIONAL BASIS FOR REVIEW ......................................1157IV. ISSUES ON APPEAL .....................................................1158A. Result of Court's Review .........................................1158V. STATEMENT OF FACTS ..................................................1159A. The Al-Qaeda Plan ................................................1159B. Appellant's Background, Conduct, and Trial .......................1161VI. STANDARD OF REVIEW ...................................................1164VII. MILITARY COMMISSION SUBJECT MATTER JURISDICTION ......................1164A. Introduction ......................................................1164B. Issue Presented ...................................................1166C. The Law ..........................................................11671. Military Commissions Act of 2006 ...............................11682. Congressional Authority to Define and Punish Offenses Against the Law of Nations ...........................................11693. The Law of Nations ............................................11734. The Law of Armed Conflict .....................................1174
a. Combatants—Lawful and Unlawful .....................................1177(1) Alien Unlawful Enemy Combatant (AUEC)—Common Element 1 ....................................................1182(a) AUEC and the Law of Armed Conflict .........................1184(b) Irregular Warfare ..........................................1184(c) U.S. Army 1914 and 1956 Manuals ............................1186(d) Terrorists .................................................1188(e) Conclusion ................................................1188(2) Conduct in the Context of and Associated with an Armed Conflict—Common Element 2 ...............................1188VIII. PROVIDING MATERIAL SUPPORT FOR TERRORISM, EX POST FACTO, AND INSTRUCTIONAL ERROR ......................................1190A. Providing Material Support for Terrorism—an Offense Under the Law of Armed Conflict ............................................11911. The Charge .....................................................11912. The 2006 M.C.A. and 2007 M.M.C .................................1192a. Material Support or Resources ...............................1193b. Terrorism defined ...........................................11943. Non-U.S. Domestic Providing Material Support for Terrorism-Type Laws ..........................................................1198B. Discussion ........................................................12021. Criminal Organizations—International Military Tribunal at Nuremburg .....................................................12032. Control Council 10—Nuremburg Military Tribunals ................12053. Joint Criminal Enterprise ......................................1210C. Analysis ..........................................................1214D. Complicity .......................................................1215E. Aiding the Enemy ..................................................1216F. Ex Post Facto .....................................................1218G. Instructional Error ...............................................1218IX. CONSPIRACY TO VIOLATE THE LAW OF WAR AS AN OFFENSE TRIABLE BY MILITARY COMMISSION .....................................1220A. Conspiracy—The Charge and Specification ...........................1222B. Conspiracy under the 2006 M.C.A. and 2007 M.M.C ...................1223C. Analysis ..........................................................12231. Non-U.S. Conspiracy-Type Laws .................................1227D. Conclusion ........................................................1230X. SOLICITATION AS AN OFFENSE TRIABLE BY MILITARY COMMISSION ..........................................................1231A. Solicitation—The Charge and Specification .........................1231B. Solicitation under the 2006 M.C.A. and 2007 M.M.C ................1231C. Analysis ..........................................................12321. Solicitation-Type Laws .........................................1235XI. FIRST AMENDMENT ISSUES ...............................................1242A. Discussion ........................................................1242B. The Military Commissions Act and the First Amendment .............1245C. Potential Chilling Effect on U.S. Citizens ........................1250D. Military Commission Judge's Instructions .........................1250E. Conclusion ........................................................1251XII. 2006 M.C.A. AND BILL OF ATTAINDER .....................................1251A. Bills of Attainder and Legislative Analysis ........................12511. Legislatively Determines Guilt .................................12522. Legislatively Inflicts Punishment ...............................1252a. Historical Test ..............................................1253
b. Functional Test ..............................................1254c. Motivational Test ...........................................1254(1) Specificity of Identification ............................1255(2) Lack of Judicial Trial ...................................1256B. Conclusion ........................................................1256XIII. EQUAL PROTECTION ....................................................1256XIV. WAIVER OF ASSIGNMENTS OF ERROR I, III to V ...........................1256A. The Law ..........................................................1257B. Analysis ..........................................................1258XV. SENTENCE APPROPRIATENESS ............................................1258A. Applicable Law ....................................................1259B. Analysis ..........................................................12601. The Offense and the Offender ...................................12602. Closely-Related Cases ..........................................1263XVI. CONCLUSION ...........................................................1264Judge SIMS concurring ................................................1264
In this appeal by Ali Hamza Ahmad Suliman al Bahlul, we review for the second time
A military commission comprised of military members determined that appellant was an alien unlawful enemy combatant, see infra nn. 23, 24, 53, and contrary to his pleas convicted him of: (1) providing material support and resources, including himself to al Qaeda,
One week after the September 11, 2001, attacks on the United States, Congress passed the Authorization for Use of Military Force resolution (AUMF). Pub. L. No. 107-40, 115 Stat. 224 (2001). The AUMF authorized 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,
In 2001, appellant was captured in Pakistan and turned over to the U.S. military. In 2002, he was transported to a military detention facility in Guantanamo Bay, Cuba, where he remains confined.
In July 2003, the President declared appellant eligible for trial by military commission on unspecified charges pursuant to his Military Order.
On November 8, 2004, a Federal District Court stayed a military commission trial until the Department of Defense complied with various requirements of the Court. Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 173-74 (D.D.C.2004). The same issues were present in appellant's case, and on December 10, 2004, the Appointing Authority directed that appellant's case be "held in abeyance" pending the outcome of the appeal filed in Hamdan.
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 scheme then in existence violated Article 36, Uniform Code of Military Justice (UCMJ) and did not satisfy the requirements of Common Article 3 of the Geneva Conventions.
Congress subsequently passed the 2006 M.C.A., which President Bush signed into law. 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.
On February 26, 2008, the convening authority referred appellant's charges and specifications to trial by military commission. Trial began on May 7, 2008. Following trial on the merits, during which appellant mounted no substantive defense, the military commission returned findings of guilty on each charge and specification and on November 3, 2008, sentenced appellant
Congress subsequently passed the Military Commissions Act of 2009 (2009 M.C.A.), which President Obama signed into law. Presidential Remarks on Signing the National Defense Authorization Act for Fiscal Year 2010, (Oct. 28, 2009) Govt. Printing Office DCPD Number: DCPD200900858. The 2009 M.C.A. revised portions of the 2006 M.C.A., including expansion of this Court's scope of review.
We recently decided the first direct appeal of a conviction by military commission convened under the 2006 M.C.A. United States v. Hamdan, 801 F.Supp.2d 1247, 2011 WL 2923945 (USCMCR June 24, 2011). In Hamdan, we concluded that the charged conduct of providing military support for terrorism was punishable under the law of armed conflict from at least February 1996, when Hamdan joined al Qaeda, that a rational basis existed for disparate treatment of aliens in the 2006 and 2009 M.C.A., and that such disparate treatment did not violate the Equal Protection Clause of the Constitution.
The Court of Military Commission Review was authorized by Congress in the 2006 M.C.A. and established by the Secretary of Defense. The 2006 M.C.A. provides for "automatic referral" for review by this Court
In section 950f(a) of the 2009 M.C.A., Congress designated our Court as the United States Court of Military Commission Review, and significantly expanded
This expanded authority mirrors that exercised by the military service Courts of Criminal Appeals in review of courts-martial in which the approved sentence includes death, a punitive discharge, or confinement for one year or more, an authority characterized as an "awesome, plenary, de novo power of review." United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990) (citing 10 U.S.C. § 866). We apply the standards and scope of review in the 2009 M.C.A. §§ 950a(a) and 950f(d), as it is more favorable to appellant. See Hamdan, 801 F.Supp.2d at 1264 n. 15, 2011 WL 2923945 at *9 n. 15 (citations omitted).
We have jurisdiction over this case because the final decision of the military commission, as approved by the convening authority, includes findings of "guilty." See supra n. 9.
Appellant raises six assignments of error that merit discussion. First, that his convictions must be reversed as none of his charged offenses constitute war crimes triable by military commission. Second, that his conviction for providing material support for terrorism must be reversed as that charge violated the Ex Post Facto Clause of the U.S. Constitution and the term "material support" was erroneously defined by the military commission judge. Third, that he was convicted on the basis of political speech in violation of the First Amendment of the U.S. Constitution. Fourth, that the 2006 M.C.A. is an unconstitutional Bill of Attainder. Fifth, that the 2006 M.C.A. violates the Constitution's Equal Protection Clause by making aliens, but not citizens, subject to trial by military commission. Sixth, that a sentence of life imprisonment is inappropriately severe and disproportionate to the sentences of closely-related defendants. We specified two issues.
We have carefully considered the record, the various pleadings and oral arguments of the parties. We hold that the findings and sentence are correct in law and fact
Appellant, a self-described "officer" in al Qaeda, joined that group with knowledge that al Qaeda engaged in terrorism and did so in complete agreement with Usama bin Laden's declarations that all Americans and anyone in the United States were legitimate targets of armed attack. Following completion of al Qaeda's military-like training, appellant met personally with bin Laden, discussed al Qaeda's view of itself as a government in exile for the Muslim world engaged in jihad (or "holy war") with the United States, and pledged his personal fealty, including his willingness to die for bin Laden and al Qaeda.
Bin Laden then assigned appellant to al Qaeda's media office and later as his personal assistant/secretary for public relations. Appellant's conduct in those positions and membership in al Qaeda provide the factual basis for his convictions of: (1) providing material support and resources to al Qaeda; (2) conspiring with bin Laden and others to, inter alia, commit murder, attack civilians and civilian objects, commit terrorism, and provide material support for terrorism; and (3) soliciting various persons to commit those same offenses.
A brief review of al Qaeda's history, organization and goals is essential to put appellant's conduct in context.
In December 1979, the former Soviet Union invaded Afghanistan. The Soviets were soon opposed by the mujahideen (self-proclaimed Muslim "holy warriors"), including native Afghans and volunteers for the proclaimed jihad against the Soviet Union. By 1985 radical Palestinian cleric Dr. Abdullah Azzam emerged as leader of the Arab recruits. "Azzam and his supporters schemed to use the conflict in Afghanistan as a means to create a multinational Muslim army to wipe out secular regimes across the Middle East, Asia and North Africa," and to establish an Islamic Caliphate. "In April 1988, Azzam published [a] manifesto, titled `Al-Qaida', meaning `The Base' or the Solid Foundation,'" in which he advocated armed struggle:
"[M]illionaire Saudi exile Usama Bin Laden . . . provided . . . financing and logistical support to Azzam's organization and soon . . . became a dominant force among the Arabs fighting in Afghanistan.... On September 10, 1988, Azzam, bin Laden, and mujahideen convened the first meeting of al Qaeda." The leaders of al Qaeda formed a Shura (Advisory Council) and divided operations "amongst various wings, including a military committee, a security committee, a financial committee, a religious legal committee, a political committee, and a media committee."
Following withdrawal of Soviet troops from Afghanistan, the varying mujahideen factions turned on each other and Dr. Azzam died. In 1991, facing collapse of the armed struggle in Afghanistan, bin Laden moved to Sudan, set up business enterprises and sponsored overseas terrorist activities.
In December 1991, following a "fatwa" (religious edict) issued on behalf of al Qaeda condemning the presence of U.S. military peacekeepers, militants attempted to attack U.S. soldiers in Yemen who were en route to Somalia peacekeeping duties. In 1993, bin Laden announced 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." Later that year, Somali militiamen, some of whom were al Qaeda-trained, shot down two U.S. Blackhawk helicopters over Mogadishu, and 18 U.S. servicemen were killed in the ensuing battle.
In 1996, the Sudanese regime ordered bin Laden and his associates out of Sudan. They relocated to Afghanistan at the invitation of the Taliban. In August 1996, bin Laden published a "declaration of war" in which he wrote:
In February 1998, bin Laden and like-minded allies founded the World Islamic Front Against Jews and Crusaders and signed a joint fatwa requiring all able Muslims to kill Americans—whether civilian or military—anywhere they can be found and to "plunder their money." On May 29, 1998, bin Laden issued a second declaration entitled "The Nuclear Bomb of Islam," in which he stated that "it is the duty of the Muslims to prepare as much force as possible to terrorize the enemies of God."
On August 7, 1998, U.S. embassies in Kenya and Tanzania were suicide-bombed by al Qaeda operatives, resulting in 257 deaths including 12 Americans. On August 20, 1998, the U.S. responded by striking terrorist training camps and a suspected chemical weapons laboratory. In October 1999, the U.S. Government officially designated al Qaeda a foreign terrorist organization, making it unlawful for anyone in the United States to provide material support to al Qaeda, and froze al Qaeda linked resources held by U.S. financial institutions.
In January 2000, al Qaeda attempted an attack on the USS THE SULLIVANS near Yemen; however, the attack boat was overloaded and sank. That boat was recovered and on October 12, 2000, disguised as a friendly civilian boat welcoming the USS COLE to port, suicide-detonated against the COLE, killing 17 American sailors, wounding 39 others, and extensively damaging the ship.
On September 11, 2001, 19 men recruited by al Qaeda hijacked four commercial
Born in Yemen on September 11, 1969, appellant is well-educated and speaks some English. In the early 1990s he was inspired by Azzam's speeches and traveled to Afghanistan to fight the Soviet-supported regime. He then returned to Yemen.
In the late 1990s, appellant approached a known al Qaeda member in Yemen about returning to Afghanistan. He used money and a visa provided by al Qaeda operatives and traveled to Afghanistan. After completing military-like training, appellant talked to and pledged bayat to bin Laden and joined al Qaeda. Bin Laden then assigned him to al Qaeda's media office.
Following the October 2000 attack on the USS COLE, bin Laden instructed appellant to prepare a video exploiting that attack for recruiting purposes. This full-length video, entitled "The Destruction of the American Destroyer Cole," is comprised of extensive footage intended to inflame the viewers and incite them to migrate to Afghanistan to train for, and actively participate in, violent jihad against the United States. Appellant was proud of the video, claiming it was al Qaeda's best propaganda video at that time, and that it "was influential" and produced "a good result" for al Qaeda. Tr. 534. Translated into multiple languages and widely distributed outside Afghanistan, the video demonstrated power to incite persons with no prior connection to al Qaeda to action. The video is organized into three parts: "The Problem," "The Causes," and "The Solution."
"The Problem" is appellant's portrayal of the Muslim nation or "Ummah" and includes emotive footage of purported Muslims, particularly women and children, being mistreated and killed. It also depicts the presence of U.S. diplomats and troops in the Middle East as part of "The Problem." The video identifies "The Causes" as diplomatic relationships between the United States and regional leaders and an alliance between the United States and Israel.
"The Solution" includes incensing images of violence against women and children, interspersed with images of world leaders including American Presidents laughing. The horrific and infuriating images are shown repeatedly with religious chanting and "a cappella" singing, known as "anasheed," audible in the background to increase the emotional impact of the video. The anasheed extol the virtues of martyrdom (suicide bombings), of sacrifice, and of combat, somberly chanting lyrics such as "revolt, revolt ... with blood, with blood." Tr. 809. The anasheed instructs the listener to trade blood for blood and destruction for destruction, while showing images of violence against women and children dying, then images of recruits training in al Qaeda camps and terrorist attacks on Americans, and finally joyful Muslims celebrating in the streets. After highly emotional scenes of Muslims suffering attributed to "Western infidels" and complicit Middle Eastern regimes, the video asserts violent jihad as the solution. It calls on viewers to come to Afghanistan to train for, and actively participate in, violent jihad against the United States.
During training camp scenes, bin Laden says, "the outcome of this training is jihad for the cause of God.... [T]hey are waiting
Appellant explained the importance he and bin Laden ascribed to appellant's role as a "media man" in supporting al Qaeda's objectives:
Tr. 195.
After work on the video was completed, bin Laden appointed appellant as his personal assistant and secretary for public relations. Appellant assisted bin Laden in preparing public statements. He operated and maintained data processing equipment, arranged for Mohammad Atta and Ziad al Jarrah (two 9/11 hijackers/pilots) to pledge fealty to bin Laden, and prepared propaganda declarations styled as "martyr wills" to motivate those individuals to commit the 9/11 attacks and document al Qaeda's role in those attacks.
Before the 9/11 attacks bin Laden ordered al Qaeda's Kandahar site evacuated, and told appellant to ready the media van, which included computer, satellite, television, and radio communications equipment. Appellant evacuated Kandahar and traveled in a vehicle convoy, which included bin Laden and other al Qaeda leaders. On 9/11, appellant was unable to obtain a video signal, so bin Laden and other al Qaeda leaders first heard reports of the 9/11 attacks via a radio operated by appellant. At bin Laden's request, appellant researched the economic impact of the 9/11 attacks and provided the results of his research to bin Laden.
Following his capture, appellant voluntarily spoke with multiple investigators regarding his background and role in al Qaeda, including his membership, status as an officer, role in production of the COLE video, and belief in bin Laden's 1996 "declaration of war." Appellant advised investigators that he was willing to discuss his own actions but unwilling to discuss those of others. Prosecution Ex. 13 at 4. He admitted committing each charged act. He also wrote several letters while detained at Guantanamo Bay to al Qaeda leaders renewing his pledge of bayat, restating his resolve to fight to the end, and reaffirming his belief that war is the only way to secure al Qaeda's objectives. Prosecution Ex. 15-18. In Prosecution Ex. 18, he stated:
Following this colloquy, appellant absented himself from the next session of court on August 15, 2008. The military commission judge then noted appellant's voluntary absence, particularly with respect to the pro se issue. Major Frakt, appellant's detailed defense counsel, represented to the military commission judge that he discussed his willingness to "defend [appellant] in the manner in which [appellant] desired to be defended." Tr. 80. Major Frakt also confirmed he had discussed the pro se representation issue with appellant, that appellant understood the impact of his voluntary absence from proceedings on his request to proceed pro se, and then Major Frakt related that appellant expressed "his very strong desire to return to the detention facility and to have no further communication with counsel of any kind." Tr. 80. In light of appellant's stated boycott and voluntary absence, the military commission judge ruled that detailed defense counsel, Major Frakt, would continue to represent appellant. Appellant's defense counsel then commented, "In accordance with Mr. Al Bahlul's wishes, defense demands, under Rule for Military Commission 707, a speedy trial. The defense waives all pretrial motions of any kind and is prepared to go to trial at the soonest possible date." Tr. 85.
Appellant's posturing, equivocation about his exercise of the right to counsel and proceeding pro se, and variable attendance have combined to create a significant ambiguity in the record. Detailed defense counsel, whose services were ostensibly rejected by appellant at the preceding session of court, appeared on August 15, 2008, without appellant present, putatively representing appellant's wishes. This ambiguity informs our treatment of the matters of waiver and forfeiture, discussed in Part XIV, infra at pp. 1256-58.
Appellant attended the next session of court on September 24, 2008, and expressed his preference to attend the trial if such attendance would not forfeit his boycott. The military commission judge informed appellant that his attendance would not forfeit his stated boycott, and appellant attended all subsequent proceedings. Appellant entered pleas of not guilty to all charges and specifications. With the exception of administrative matters and appellant's unsworn statement and related documents presented during the presentencing hearing, appellant presented no defense, made no closing argument, interposed no objection to prosecution evidence, conducted no cross-examination of prosecution witnesses, and presented no defense evidence.
In an unsworn statement to the members during the presentencing hearing, appellant acknowledged his membership in al Qaeda, asserting "we are the only ones on earth who will stand against you," the
Tr. 978-79. The members sentenced appellant to confinement for life.
On appeal, appellant challenges the authority of Congress to legislate and the President, or his designee, to implement the 2006 M.C.A., on a number of constitutional grounds. He also alleges that the military commission judge misapplied the law and that the sentence awarded is inappropriately severe. Whether a military commission may exercise jurisdiction over the charged offenses is a question of law we review de novo. Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 919 (D.C.Cir.2008); Hamdan, 801 F.Supp.2d at 1263-65, 2011 WL 2923945 at *9; United States v. Khadr, 717 F.Supp.2d 1215, 1220 (USCMCR 2007). Challenges to the constitutionality of the 2006 M.C.A. are reviewed de novo. Hamdan, 801 F.Supp.2d at 1264 n. 14, 2011 WL 2923945 at *9 n. 14 (citations omitted). We also review sentence appropriateness and factual sufficiency de novo.
Appellant alleges that his convictions must be reversed because none of the charges constitute war crimes triable by military commission. Brief for Appellant 21-28; Reply Brief for Appellant 11-13. Brief on Specified Issues for Appellant 6-39; Reply Brief on Specified Issues for Appellant 5-31. He argues that the military commission's subject matter jurisdiction is limited to war crimes, that Congress' authority to define and punish offenses triable by military commission is constrained to those offenses internationally recognized as violations of the law of war, and that none of the offenses of which he stands convicted are so recognized. Id. Appellant, in essence, asserts that Congress exceeded the scope of its constitutional authority in making the offenses of which he was charged and convicted punishable by military commission. Id.
Appellant's challenge of Congress' constitutional authority to "define" his conduct as an offense raises fundamental and significant questions as to the scope of legislative and executive authority in this area and as to what, if any, deference is due the exercise of that authority by reviewing courts. Our review is guided by two fundamental principles. First, the canon of "constitutional avoidance," that being "when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity."
The offenses of which appellant stands convicted were explicitly defined, as such, by Congress in coordination with the President following the Supreme Court's decision in Hamdan, and explicitly intended to address punishment of those with whom the United States was and remains engaged in armed conflict. In the words of Justice Jackson, when national security relating to foreign affairs is an issue, "[an action] executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring; citations omitted; quoted at infra n. 29). See also Hamdan, 801 F.Supp.2d at 1267 and n. 27, 2011 WL 2923945 at *12 and n. 27.
In the 2006 M.C.A., Congress endeavored "to enumerate or define by statute" the acts punishable by military commission in a conflict characterized by the Supreme Court as "not of an international character occurring in the territory of one of the High Contracting Parties." See Hamdan, 548 U.S. at 629, 126 S.Ct. 2749. This is an area of law where explicit international treaty law is generally characterized as "rudimentary" and customary international law is appropriately described as evolving.
Even cursory review of the 2006 M.C.A. reveals that Congress cast a wide net of potential individual criminal liability with respect to the offenses which may be subject of trial by military commission.
In addition, the hybrid nature of international terrorism presents unique legal and policy challenges as the underlying conduct is often punishable under the law of nations, the domestic law of civilized nations, or both. Consideration of the aforementioned, particularly in this statutorily prescribed, yet nascent military commissions system "requires us to proceed with circumspection."
Accordingly, we see the jurisdictional issue presented as similar to that addressed in Ex parte Quirin, "[w]e are concerned only with the question whether it is within the constitutional power of the National Government to place [appellant] on trial before a military commission for the offenses charged." Ex parte Quirin,
"Congress and the President, like the courts, possess no power not derived from the Constitution." Quirin, 317 U.S. at 25, 63 S.Ct. 2. The Constitution invests in Congress the authority to:
Id. at 26, 63 S.Ct. 1. In addition, the Constitution authorizes Congress "To constitute Tribunals inferior to the Supreme Court." U.S. Const., art. I, § 8, cl. 9.
"The Constitution confers on the President the `executive Power,' Art. II, 1, cl. § 1, and imposes on him the duty to `take Care that the Laws be faithfully executed' Art. II, § 3. It makes him the Commander in Chief of the Army and Navy, Art. II, § cl. 1." Quirin, 317 U.S. at 26, 63 S.Ct. 2. The President, as Commander in Chief has "the power to wage war" which Congress has declared, "and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war." Id.
Military commissions derive their authority from these provisions of the Constitution as well as statutes, military usage, and the common law of war. Quirin, 317 U.S. at 26-28, 30, 34, 63 S.Ct. 2; Winthrop, Military Law and Precedents at 831 (2d ed. 1920) (1920 Winthrop). Military tribunals have existed since the Revolutionary War, and Congress has long recognized the "`military commission' ... as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by courts-martial." Quirin, 317 U.S. at 26-27, 63 S.Ct. 2 (citing Articles of War 12, 15); id. at 42 n. 14, 63 S.Ct. 2 (listing revolutionary war military commissions). The Uniform Code of Military Justice, enacted in 1950, which provides rules for the government of the armed forces, also acknowledges the jurisdiction of the "military commission" for trial and punishment of "offenders or offenses" as provided "by statute or by the law of war." See 10 U.S.C. §§ 821, 836, UCMJ, Act of May 5, 1950, ch. 169, 64 Stat. 107, 115, 120, 149 (quoted in Hamdan, 548 U.S. at 592-93, 126 S.Ct. 2749, cited at 652 (Kennedy, Souter, Ginsburg, and Breyer, JJ., concurring in part)).
Id. (emphasis in original). In Hamdan, the Supreme Court agreed that military commissions have historically been used by the United States in three circumstances, and that the situation relevant to the conflict with al Qaeda is "incident to the conduct of war" when there is a need "to seize and subject to disciplinary measures those enemies who ... have violated the law of war ....'"
The 2006 M.C.A. was developed and passed in direct response to the Supreme Court's decision in Hamdan.
The jurisdiction of military commissions convened under the 2006 M.C.A. is limited to: (1) alien
The parties agree the constitutional authority "To define and punish Offences against the Law of Nations" (the "Define and Punish Clause") provides Congress a basis to establish a statutory framework, such as the 2006 M.C.A., for trying and punishing violations of the law of war. U.S. Const. art. I, § 8, cl. 10. In addition, the Government asserts that when Congress exercises its authority to "define and punish" violations of the law of war, in conjunction with the Executive and "especially in the context of an armed conflict where national security is at stake, its judgment is entitled to the greatest deference."
In 1820, the Supreme Court addressed Congressional authority in Article I, § 8, cl. 10, "[t]o define and punish Piracies and Felonies committed on the high seas," the same clause containing the separate congressional power, "[t]o define and punish... Offenses against the Law of Nations." United States v. Furlong, 18 U.S. 184, 198, 5 Wheat. 184, 5 L.Ed. 64 (1820). The Court found a lack of nexus to the United States where Furlong, his victim, and the ship where the murder occurred were all British, and the Court concluded Congress had exceeded the scope of its constitutional authority by declaring "murder [at sea] to be piracy." Id. at 195.
Furlong, a British subject, had engaged in an act of piracy against a British vessel, and while aboard that vessel killed another British subject. Id. at 195. He was tried and convicted by a U.S. court under a 1790 law criminalizing piracy to include the offense of murder. Id. at 193. The Supreme Court reasoned:
Id. at 198. We glean from Furlong that the Supreme Court recognized "the province and duty of the judicial department... to say what the law is" includes review of the Congressional exercise of authority "[t]o define and punish Piracies and Felonies committed on the high seas." Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803); U.S. Const., art. I, § 8, cl. 10.
The outer boundaries of Congress' discretion to "define and punish ... Offences against the Law of Nations" and to make such conduct punishable by military commissions remain an open question.
On the other hand, there is substantial authority supporting the Government's position
Nonetheless, we are not persuaded by the Government's suggestion that Congress' power to "define and punish ... Offences against the Law of Nations," U.S. Const., art. I, § 8, cl. 10, even when exercised in collaboration with the President in a time of armed conflict, includes the power to make conduct punishable by military commission without any reference to international norms.
When the U.S. Constitution was adopted, "the law of nations was understood" to be "a branch of natural law, deducible by reason, ... obligatory on all nations," and according to "Blackstone and Lord Mansfield, ... incorporated into the common law of England."
More recently, the law of nations or international law is defined as "rules and principles of general application dealing with the conduct of States and of international organizations and with their relations inter se, as well as some of their relations with persons, natural or juridical." Restatement (Third) of Foreign Relations Law of the United States, § 101 (1987). This modern definition reflects the integration of humanitarian law, or perhaps more succinctly individual human rights, into the evolving body of law previously primarily related to relations among nation states with almost exclusive focus on state sovereignty.
The horrors of World War II produced a host of developments in international law, among the most significant was crystallization of the principle that violation of certain international norms, even on behalf of a nation state, could give rise to individual criminal responsibility. The emergence of this principle was primarily driven by the need for effective means of enforcement. The International Military Tribunal at Nuremberg reasoned, "[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."
The sovereignty of states over their territory and nationals, the protection of "succeeding generations from the scourge of war," and the maintenance of "international peace" and security remain fundamental tenets of international law. Preamble and Article 1, United Nations Charter. The generally accepted sources of international law include:
International law's traditional function of regulating relations between and among states is at the apex of importance when
In his influential 1886 treatise, Colonel William Winthrop explained the laws or customs of war as:
William Winthrop, Military Law, vol. I, 42-43 (Morrison 1886).
Since Colonel Winthrop's 1886 treatise, the number of conventions and treaties applicable in armed conflict has increased significantly. Most conventions addressing the law of armed conflict fall within two broad categories, "Hague Law" or "Geneva Law."
While the aforementioned principles impose restraints on the conduct of hostilities, the "combatants' privilege" is a fundamental rule of the law of armed conflict. The "privilege of combatant immunity" is limited to "lawful combatants" and "the quid pro quo for attaining such immunity must be that combatants distinguish themselves from the civilian population—that is, `persons entitled to immunity for pre-capture war-like acts must have made themselves legitimate targets while performing those acts.'" Rosen, supra n. 39, at 770 (citation omitted). Lawful combatants enjoy "combatant immunity" for their pre-capture acts of warfare, including the targeting, wounding, or killing of other human beings, provided those actions were performed in the context of ongoing hostilities against lawful military targets, and were not in violation of the law of war.
The law of armed conflict regulates the means by which armed force is employed, to include the intentional killing of other human beings. Lawful combatants are immunized from prosecution for the act of killing, so long as the fundamental principles of the law of armed conflict are not violated.
"Lawful enemy combatants [have] ... combatant immunity and [enjoy]... the protections of the Geneva Conventions if wounded or sick, and while being held as prisoners of war (POWs)." United States v. Khadr, 717 F.Supp.2d 1215, 1221 (USCMCR 2007) (citations omitted). Lawful enemy combatants, who are being tried for offenses that violate the law of war or for their "post-capture offenses committed while they are POWs, are entitled to be tried by the same courts, and in accordance with the same procedures, that the detaining power would utilize to try members of its own armed forces (i.e., by court-martial for lawful enemy combatants held by the United States)." Id. (citing GCIII, supra n. 6, arts. 84, 87 and 102.).
"By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants." Quirin, 317 U.S. at 30-31 and n. 7, 63 S.Ct. 2 (citing Hague Convention No. IV (Oct. 18, 1907), 36 Stat. 2295, and Annex I to Hague Convention No. IV; other citations omitted). This determination of "lawful" or "unlawful" combatant status is far more than simply a matter of semantics. Unlawful combatants are not entitled to "combatant immunity" or the privileges generally afforded lawful combatants who become POWs. "Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." Id. at 31, 63 S.Ct. 2; see also United States v. Lindh, 212 F.Supp.2d 541, 554 (E.D.Va.2002).
Prior to implementation of Common Article 3, irregular bands of men carrying on irregular wars not in compliance with the law of armed conflict were under the common law of war upon capture subject to a punishment of death, often without trial.
Although international conventions and treaties primarily address international armed conflict or "conflict between nations," in Hamdan, the Supreme Court concluded that "at least" Common Article 3 of the Geneva Conventions (so called because it appeared in all four conventions) applies to the United States' conflict with Al Qaeda. Hamdan at 548 U.S. at 629-30, 126 S.Ct. 2749. The Court reasoned:
Id. (citing GCIII, art. 3, ¶ 1(d), 6 U.S.T. at 3320). In Hamdan, noncompliance with the requirement that "judgment [be] pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," id. at 630, 632, 126 S.Ct. 2749 (citing GCIII, art. 3, ¶ 1(d), 6 U.S.T. at 3320), provided one of the two primary bases for the Supreme Court's conclusion that the military commission convened under Military Commission Order No. 1, lacked the authority to try Hamdan. Id. at 632-33, 126 S.Ct. 2749.
Common Article 3, applicable to the United States' conflict with al Qaeda, reflects elementary considerations of humanity, "provides a rudimentary framework of minimum standards[,] and does not contain much detail." Customary International Humanitarian Law (IHL), International Committee of the Red Cross (ICRC), 2005, vol. I at Intro. XXXV. Common Article 3 was adopted to provide minimum humanitarian standards applicable in internal armed conflict, including prohibition of "sentences and executions without previous trial" or "summary justice." GCI, supra n. 6. Less than one typed page in length, Common Article 3 declares in GCI:
Common Article 3 is supplemented by APII.
APII, art. 4, ¶¶ 1-2. "Protection of the civilian population" is of fundamental import:
APII, art. 13, supra n. 39 (emphasis added).
Suffice it to say there is no statute, treaty, or other international agreement which exhaustively details all offenses or conduct violative of the laws or customs of war. However, the "fundamental guarantees" of treaties applicable "at any time and in any place whatsoever" including conflicts not of an international character, explicitly prohibit: murder, the intentional targeting of civilians, "acts of terrorism," and "acts or threats of violence the primary purpose of which is to spread terror among the civilian population" as specifically alleged or directly implicated here. See Discussion of Common Article 3 and APII at pp. 33-34, supra n. 39. These fundamental guarantees and prohibitions are central to determining whether appellant was lawfully tried and punished by military commission. Although Common Article 3 does not specifically adopt individual criminal liability for its violation,
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), an ad hoc tribunal established by the United Nations in 1993 to address varying atrocities that took place during the conflicts in the Balkans in the 1990s, addressed this very issue. In Tadić, the Appeals Chamber found that certain norms of international armed conflict have evolved through customary law and now apply during non-international armed conflict as well. Prosecutor v. Tadić, Case No. IT-94-1-AR72, Jurisdiction Appeal, ¶ ¶ 67-71 (Oct. 2, 1995). Specifically:
Tadić, IT-94-1-AR72 at ¶ 70. Although we are not bound by the ICTY Appeals Chamber's decision in Tadić, the principles embodied in Tadić reveal that conduct during armed conflict that breaches fundamental principles or values may provide the basis for individual criminal liability for violation of the common law of war.
Fundamental laws applicable in any armed conflict, regardless of type, and relevant here include:
(1) Lawful combatants enjoy combatant immunity for pre-capture acts of warfare performed in the context of ongoing hostilities against lawful military targets. To qualify as a lawful combatant an individual must satisfy the conditions specified in the 2006 M.C.A. § 948a(2) infra at n. 53 and listed infra p. 1182.
(2) The law of armed conflict prohibits the intentional targeting of civilians and "[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population."
Prosecution Ex. 22 at 2.
On May 28, 1998, bin Laden was interviewed by ABC News and reiterated that "[w]e do not differentiate between those dressed in military uniforms and civilians, they are all targets in this fatwah." Prosecution Ex. 24 at 2. On May 29, 1998, 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."
With this foundational framework we turn to the statutory elements of the three offenses of which appellant stands convicted. We will discuss the elements common to all three offenses, and then discuss each offense individually.
The term AUEC is fundamental to determining both persons subject to trial by military commission, and the subject matter jurisdiction of military commissions convened under the 2006 M.C.A. Each specification states that appellant was an "alien unlawful enemy combatant" and alleges a direct nexus to al Qaeda. See Charges, infra pp. 48, 86, 97. The statute, as written and as applied at trial, confirms the essential jurisdictional function of the AUEC determination.
The 2006 M.C.A. explicitly limits jurisdiction over persons subject to trial by military commission to AUECs and defines an AUEC as a person who: (1) was not a citizen of the United States, (2) was not a "lawful combatant,"
At trial, the military commission judge made a threshold determination that appellant was an "unlawful enemy combatant," for the limited purpose of establishing jurisdiction, as that term is defined in the 2006 M.C.A. § 948a(1). Tr. 836-37, 873.
Based upon the record before us, making allowances for not having personally observed the witnesses, we agree with the military commission judge and the members that appellant was an AUEC, as defined by the 2006 M.C.A., and conclude that the military commission properly exercised jurisdiction over him. We base this conclusion on our findings, beyond any reasonable doubt that: (1) appellant was a member of al Qaeda during the charged time frame as evidenced by his admissions and other corroborating evidence; (2) appellant was a citizen of Yemen, and that he was neither a citizen nor resident of the United States; and (3) that appellant was not a lawful combatant, as that term is defined in 2006 M.C.A. § 948a(2). See supra n. 53.
The specification of each charge explicitly stated that appellant was an AUEC and alleged a direct nexus to al Qaeda. The 2006 M.C.A. defines "unlawful enemy combatant" as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." 2006 M.C.A. § 948a(1), supra n. 24. This definition implicitly reflects that membership in al Qaeda renders an individual an unlawful enemy combatant potentially punishable by military commission if that person is also an "alien" and not otherwise a "lawful combatant." This implication was made explicit in the 2009 M.C.A. where an "unprivileged enemy belligerent," "means an individual (other than a privileged belligerent) who—(C) was a part of al Qaeda at the time of the charged offense under this chapter." 2009 M.C.A. § 948a(7)(C). See infra n. 58.
The military commission judge applied the 2006 M.C.A. precisely in that manner. He instructed the members that the AUEC determination was an element "common to all the offenses," and further instructed that "the government must prove to you beyond a reasonable doubt that [appellant]" was an AUEC, defining each key term in accordance with the statute.
Under the law of armed conflict, an AUEC is effectively synonymous with "unprivileged enemy belligerent," in other words a belligerent who is not entitled to "combatant immunity" or, upon capture, treatment as a prisoner of war. It is based upon the statutory language and findings required by the military commission judge and members. Congress' substitution of the phrase "unprivileged enemy belligerent" for "unlawful enemy combatant" in the 2009 M.C.A. further supports this proposition.
As previously discussed, "unlawful combatants are ... subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." Quirin, 317 U.S. at 30-31, 63 S.Ct. 2. The Supreme Court has long recognized that "men and bodies of men, who, without being lawful belligerents nevertheless commit hostile acts of any kind are not entitled to the privileges of prisoners of war if captured, and may be tried by military commission and punished by death or lesser punishment." Id. at 34, 63 S.Ct. 2 (citing 1940 Rules of Land Warfare promulgated by the War Department for the guidance of the Army, ¶ 351)(internal quotation marks omitted). Clearly, both the plain language of the 2006 M.C.A., see supra n. 24, and Quirin use the word "unlawful" in contradistinction to the word "lawful" or "privileged." See supra n. 58.
At the time of the Civil War it was a well-established principle that guerilla-type bands were not exempt from military tribunals, and by the "laws of war" treated as murderers, robbers and thieves. Fisher, supra n. 46, at 19 (citation omitted). Early in the American Civil War then General-in-Chief of the U.S. Army, Major General (MG) H.W. Halleck posed several related questions to Dr. Francis Lieber, a noted law of war expert and future author of the Lieber Code, one of the first comprehensive lists of the laws of war.
Francis Lieber, Guerrilla Parties Considered with Reference to the Laws and Usages of War (Lieber, Guerrilla Parties) Forward (1862). See also James G. Garner, General Order 100 Revisited, 27 Mil. L.Rev. 1, 17 (1965) (citing letter of MG H.W. Halleck to Francis Lieber of Aug. 6, 1863). In response, Doctor Lieber explained:
Lieber, Guerrilla Parties at 5-6.
Id. at 7-8, 18-19.
Id. at 17, 20-21.
Id. at 21-22.
This reasoning was repeated in Attorney General Speed's opinion regarding trial by military commission of those charged with
James Speed, Opinion of the Constitutional Power of the Military to Try and Execute the Assassins of the President, 11 Op. Atty. Gen. 297, 312 (1865).
Post World War II, before the International Military Tribunal at Nuremburg, both the Chief French Prosecutor and Deputy Chief French Prosecutor acknowledged that unlawful belligerents or "francs-tireurs could be condemned to death[.]"
11 T.W.C., supra n. 60, at 1269, see also id. at 529-30, 1244 (discussing necessity for compliance with the four requirements in the Annex to the Hague Convention, art. 1, at p. 31); 2006 M.C.A. § 948a(2), supra n. 53 (requirements for lawful combatant). The Tribunal also held that List's deputy, Walter Kuntze, had "no criminal responsibility... because of the killing of captured members of the resistance forces, they being francs-tireurs subject to such punishment." Id. at 1276.
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."
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 Dep't of the Army, Field Manual 27-10, The Law of Land Warfare (1956 FM 27-10). The 1956 FM 27-10 ¶ ¶ 502-504 listed grave breaches of the Geneva Conventions and a representative list of other war crimes. At 11499 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 FM 27-10 permits prosecution of unlawful combatants or unprivileged belligerents as war criminals stating:
A former Legal Adviser, U.S. State Department, eloquently addressed the status of terrorists vis-à-vis privileged or lawful belligerency in the following statement:
The 2006 M.C.A. definition of an AUEC is consistent with the meaning of an unprivileged belligerent under the common law of armed conflict. See supra n. 58. In the absence of any meaningful support for the proposition that appellant or other members of an armed group like al Qaeda qualify as lawful or privileged belligerents under the law of armed conflict, and upon consideration of the charged conduct and the entire record, we also conclude, beyond any reasonable doubt, that appellant was an AUEC as defined in the 2006 M.C.A.
The 2006 M.C.A., as implemented in the 2007 M.M.C., requires a nexus between the charged conduct and an armed conflict
This element, sometimes referred to as the "contextual element"
In this case, each specification states that all conduct occurred in "various locations
Tr. 844-45.
In conclusion, the requirement that the charged conduct occur "in the context of and associated with an armed conflict," as defined in the M.M.C. and by the military commission judge at trial are consistent with the law of armed conflict and the 2006 M.C.A. This element is fundamental to the military commission's proper exercise of jurisdiction over any charged offense. Moreover, after weighing all the evidence in the record and recognizing that we did not see or hear the witnesses, we are also convinced, beyond a reasonable doubt, that the United States was engaged in an armed conflict with al Qaeda during the charged timeframe in "various locations in Afghanistan, Pakistan, and elsewhere."
We begin our analysis by combining appellant's three challenges to the charge of providing material support for terrorism:
Appellant alleges that "Providing Material Support for Terrorism" is a "novel domestic crime" neither recognized nor charged as a war crime before passage of the 2006 M.C.A. Brief for Appellant 24; Reply Brief for Appellant 11-13.
In Hamdan, we recently concluded that a military commission properly exercised jurisdiction under the 2006 M.C.A. over the charged conduct in five specifications of "providing material support for terrorism" when committed by an AUEC in the context of an armed conflict with the requisite knowledge and intent. See Hamdan, 801 F.Supp.2d at 1276-79, 2011 WL 2923945 at *18 (citations omitted). The conduct detailed in those five specifications was charged under two distinct formulations of the offense of providing material support for terrorism.
We disagree with appellant's primary assertion that the charged conduct was not punishable by military commission when he committed the offenses. See Hamdan, 801 F.Supp.2d at 1312-15, 1322-23, 2011 WL 2923945 at *43-*44, *50 (citations omitted). The charged conduct, including appellant's pledge of fealty to bin Laden, membership in al Qaeda, and intentional provision of material support or resources to al Qaeda, an international terrorist organization, then engaged in armed conflict with the United States, with knowledge that al Qaeda had engaged in or engages in terrorism, was punishable by military commission when committed.
Appellant was charged in the Specification of Charge III with and convicted of:
The charged conduct shares some commonality with Hamdan's conviction for that same offense, as both Hamdan and al Bahlul received military-type training at an al Qaeda-sponsored training camp, both pledged fealty to bin Laden, both were al Qaeda members, and both provided personal services to bin Laden in support of al Qaeda's goals and objectives. However, unlike Hamdan's more traditional soldier-like support (e.g. armed physical security and transportation of persons and weapons), appellant provided staffing and strategic support, and was acquitted of providing physical security.
The 2006 M.C.A.'s definition of "Providing Material Support for Terrorism" includes two principal formulations of conduct comprising that offense.
The statute defines "material support or resources" as "any, property, tangible or intangible, or [any] service[.]"
By defining "material support or resources" as "any, property ... or [any] service" Congress cast a wide net with respect to the scope of support and resources subject of the statute. The Supreme Court acknowledged the broad "scope" of this definition, in ruling on a recent challenge to the domestic law source of this definition. "Of course, the scope of the material-support statute may not be clear in every application." Holder v. Humanitarian Law Project, 561 U.S. ___, 130 S.Ct. 2705, 2720, 177 L.Ed.2d 355 (2010).
In this case, the Specification of Charge III states appellant provided both material support and resources. The primary resource charged was that he provided himself to al Qaeda as a member; consistent with the statute's explicit recognition of "personnel [including] oneself" as material support or resources. See 2006 M.C.A. § 950v(b)25(A) (quoted supra at nn. 68-69,). The specification states he traveled to Afghanistan to join al Qaeda, met with an al Qaeda leader, underwent military-type training at an al Qaeda sponsored camp, met with and pledged personal loyalty to bin Laden, and then joined al Qaeda. The Specification of Charge III ¶¶ a-d.
Appellant was also charged with providing services in direct support of bin Laden and al Qaeda including: preparation of
Although the services he provided are not explicitly identified in the statute, the statutorily enumerated examples are a non-exhaustive list. The charged services fall within the scope of the statutorily defined services to include expert advice or assistance.
After review of the record, including the Specification of Charge III, and pleadings of the parties, we conclude that appellant's provision of himself as a member of al Qaeda and his provision to al Qaeda of various services constitute "material support or resources," as those terms are defined in the 2006 M.C.A.
The offense of "terrorism" warrants particularized discussion as it is invoked in each charged offense. The 2006 M.C.A. § 950v(b)(24) prohibits AUECs from committing terrorism stating:
This definition of "terrorism," is incorporated into "providing material support for terrorism," see n. 68 (quoting 2006 M.C.A. 950v(b)(25)(A)), and may be appropriately characterized as the underlying offense. In addition, the specifications of the conspiracy and solicitation charges cite "terrorism" as an object offense. Accordingly, we will discuss "terrorism" as that offense is defined in the 2006 M.C.A. and international law.
The 2006 M.C.A. definition is more comprehensive than Common Article 3 of the Geneva Conventions, API, and APII. All prohibit the "intentional targeting and killing of protected persons" and "acts or threats of violence the primary purpose of which is to spread terror among the civilian population." See supra n. 39. In addition, the 2006 M.C.A. requires the Government prove that "[t]he accused did so in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct." 2007 M.M.C. Part IV, ¶ 6(24)b(2). The 2006 M.C.A.'s inclusion of an additional element actually narrows the conduct subject to individual criminal liability, and places an additional burden of proof on the Government.
The 2006 M.C.A. definition is also consistent with the most comprehensive definition of "terrorism" by international treaty extant on September 11, 2001. Specifically, the 1999 Financing Terrorism Convention included in its prohibition
Article 2.1, International Convention for the Suppression of the Financing of Terrorism (Dec. 9, 1999) (1999 Financing Terrorism Convention), 2178 U.N.T.S. 197, 39 I.L.M. 270, G.A. Res. 54/109 (emphasis added).
The similarity in these definitions does not suggest that a universally accepted definition of terrorism existed at the time of appellant's charged conduct, or that such a definition currently exists in international law. A more accurate description of the treaty law addressing international terrorism would be ad hoc. Long-standing efforts to define "terrorism" have been the subject of persistent political dispute, primarily associated with national liberation movements, concerns inapplicable to al Qaeda's attacks on the United States. See Alex Schmid, Terrorism on Trial: Terrorism—The Definitional Problem, 36 Case W. Res. J. Intl. L. 375 (2004).
At least 12 antiterrorism treaties or conventions predate appellant's offenses.
These conventions occurred in the context of numerous debates in the United Nations about the causes of international terrorism and ways to suppress and eliminate terrorism. A 1994 General Assembly Resolution on measures to eliminate international terrorism declared that:
In 1998, the Security Council adopted a resolution in response to the attacks on the United States' embassies in Kenya and Tanzania, which are named in the specification of the charge, by "[s]trongly condemn[ing] the terrorist bomb attacks in Nairobi, Kenya and Dar-es-Salaam, Tanzania on 7 August 1998 which claimed hundreds of innocent lives, injured thousands of people and caused massive destruction to property." S.C. Res. 1189, U.N. Doc. S/RES/1189 (Aug. 13, 1998) at ¶ 1. In the same year, the Security Council expressed its concern 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," and demanded "that the Taliban stop providing sanctuary and training for international terrorists
The Organization of the Islamic Conference (OIC) was established on September 25, 1969, and currently has 57 member countries with a total population of 1.5 billion people. See OIC webpage on UN website, http://www.oicun.org/2/23/. The OIC Convention on Combating International Terrorism defines "Terrorism" as:
There is ample evidence that an "intent" or "manner calculated to influence or affect the conduct of government . . . by intimidation or coercion," supra p. 52, now constitutes "international custom, as evidence of a general practice accepted as law" or at minimum "the general principles of law recognized by civilized nations." Statute of the International Court of Justice art. 38(1). This conclusion is based upon the implicit acceptance of the 1999 Financing Terrorism Convention's definition of "terrorism" as it was signed by at least 39 nations before September 11, 2001, entered into force in April 10, 2002, and now has 132 signatories and 174 parties. See Hamdan, 801 F.Supp.2d at 1282 n. 59, 2011 WL 2923945 at *20 n. 59 (listing number of signatories and parties). In addition, this requirement has routinely appeared in draft definitions emanating from the United Nations since the original working group report in November 2001, and in varying forms in domestic counter-terrorism laws.
The domestic laws of many nations prohibit conduct that is similar to providing material support for terrorism. Under Afghan law, for example, membership in a terrorist organization, recruiting another to commit a terrorist act, or helping in any form or way in order to complete the commission of a terrorist act is a crime. Law on Combat Against Terrorist Offenses, Art. 19 (July 2008). Article 3(1) of this law defines "Terrorist Offenses" and Article 3(2) defines "Terrorist and Terrorist Organizations" as a "real or legal person which has committed one of the offences mentioned in this Law or designated as a terrorist or terrorist organization by Resolution of the Security Council of the United Nations, provided that the Resolution is certified by the National Assembly."
Brazilian law punishes whoever:
Egypt promulgated Law No. 97 in 1992, and amended it to address terrorist acts and terrorism "committed anywhere in the world." SCOR Report S/2001/1237 at 3 (Dec. 21, 2001) (citing Law No. 97 of 1992). "`[T]errorism' means any use of force or violence or any threat or intimidation to which the perpetrator resorts in order to carry out an individual or collective criminal plan aimed at disturbing the peace or jeopardizing the safety and security of society and which" harms or creates fear or "imperil[s person's] lives, freedoms or security; harm[s] the environment; damage[s]
The "cornerstone" of French counter-terrorism law is the Act of Sept. 9, 1986. SCOR Report S/2001/1274 at 3 (Dec. 27, 2001). "Terrorist acts are generally defined by combining the existence of an offence under ordinary criminal law which appears on a restrictive list with an `individual or collective undertaking, the aim or which is to cause a serious disturbance to public order by means of intimidation or terror.'" Id. Some offenses such as "membership of terrorist groups" have separate legal definitions. Id.
The Terrorist and Disruptive Activities (Prevention) Act (1987) (1987 TADA) of India prohibits terrorists acts stating, "Whoever with the intent to overawe the Government ... or to strike terror ... in any section of the people ... or to adversely affect the harmony amongst different sections of the people does any act or thing." 1987 TADA, Ch I, Pt. II, ¶ 3(1). It broadly describes the prohibited means and objectives for commission of a terrorist act:
Id. See also Hamdan, 801 F.Supp.2d at 1290-92, 2011 WL 2923945 at *26 (citations omitted) (describing in more detail the development of counter-terrorism law in India).
Indonesian law punishes "[a]ny person who with deliberate intent sets fire, causes explosion or causes a flood." SCOR Report S/2001/1245 at 7 (Dec. 26, 2001) (citing Penal Code of Indonesia, Book II on Crimes, Ch. VII on Crimes whereby the General Security of Persons or Property is Endangered, art. 187). Whoever "produces, receives, tries to procure, ..., conceals, transports or imports into Indonesia... objects ... of which he knows or reasonably must suspect that they are intended... to cause an explosion, whereby danger of life or general danger to property is feared" commits an offense. Id. The Government Regulation in Lieu of Legislation of the Republic of Indonesia No. 1/2002 on Combating Criminal Acts of Terrorism penalizes the intentional use of violence or the "uses violence or the threat of violence to create a widespread atmosphere of terror or fear in the general population or to create mass casualties, by forcibly taking the freedom, life or property of others or causes damage or destruction to ... the environment or public facilities or international facilities." Id. at Ch. III, §§ 6, 7 (Oct. 18, 2002).
Italy implemented measures in the 1960s and 1970s to combat domestic terrorism, and adopted additional measures to combat international terrorism after September 11, 2001. Elies van Sliedregt, European Approaches to Fighting Terror ism, 20 Duke J. Comp. Intl. L. 413, 420 (2010); SCOR Report S/2002/8 at 4-6 (Jan. 2, 2002). The Cossiga Law, enacted on February 6, 1980, punished "[mere participation in] ... an `association with the aim of terrorism and of subversion of the democratic order' and `attack for subversive or terrorist purposes'" without the necessity of actual participation in a violent act.
Pakistan adopted the Anti-Terrorism Act of 1997 (1997 ATA) to prevent terrorist acts. SCOR Report S/2001/1310 at 6 (Jan. 10, 2002). "In August 2001, the [1997 ATA] was further amended to enlarge its scope. Under the amended Act, terrorism is a punishable offence and abetting terrorism, including membership of terrorist groups and recruitment and support for such groups, is an offence." Id. "Sections 11(A) to 11(X) [of the 1997 ATA as amended] prohibit organizations involved in terrorist activities and bars membership and support to such organizations." Id. at 8. See also Hamdan, 801 F.Supp.2d at 1290-93, 2011 WL 2923945 at *26-*27 (citations omitted) (describing in more detail Pakistan's counter-terrorism laws). The ATA (Second Amendment) Ordnance XIII 1999, § 6 (Gazette of Pakistan, Extraordinary, Pt. I, Aug. 27, 1999), which provides:
Russian law defines "terrorism" as "violence or the threat of violence against individuals or organizations, and also the destruction (damaging) of or threat to destroy (damage) property and other material objects." Russian Federation Federal Law No. 130-FZ, art. 3 (July 25, 1998). Terrorism includes, for example, to "threaten to cause loss of life, significant damage to property, or other socially dangerous consequences and are implemented with a view to violating public security, intimidating the population, or influencing the adoption of decisions advantageous to terrorists by organs of power, or satisfying their unlawful material and (or) other interests." Id. "[T]errorist crimes are crimes envisaged by Articles 205-208, 277, and 360 of the Russian Federation Criminal Code. Other crimes envisaged by the Russian Federation Criminal Code may be categorized as terrorist crimes if they are committed for terrorist purposes."
Spanish law indicates that "terrorism" is defined in Spanish Criminal Code, art. 571-79 "of the, `On crimes of terrorism', and also in the Organic Act on the Reform of the Criminal Code (LO 10/1995 of 23 November 1995)."
Before September 11, 2001, "Swedish legislation ... contained no reference to specific criminal offences for terrorist acts. Persons committing terrorist acts were punished under the general provisions in the Penal Code." SCOR Report S/2001/1233 at 4 (Dec. 24, 2001). To comply with the European Framework Decision on Combating Terrorism, Sweden enacted the Act on Criminal Responsibility for Terrorist Crimes, which entered into force on July 1, 2003. This act defines a terrorist act as one that is designed to:
SCOR Report S/2004/476 at 3 (June 10, 2004). "Attempt, preparation or conspiracy to commit terrorist crimes or failure to disclose such crimes is also punishable." Id.
The Terrorism Act of 2000 of the United Kingdom states that "terrorism" means "the use or threat of action" if such action "(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person[']s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public ..." Terrorism Act 2000, ch. 11, pt. 1 § 1(1), 1(2) (July 20, 2000). http://www.legislation.gov.uk/ukpga/2000/11/contents/enacted. Such use or threat must be "for the purpose of advancing a political, religious or ideological cause," or "designed to influence the Government or intimidate a section of the public," and be "made for the purpose of advancing a political, religious or ideological cause." Id. at § 1(1). See also SCOR Report S/2001/1232 at 10 (Dec. 24, 2001).
The 2006 M.C.A. definition of terrorism is narrower in its prohibitions than the language of Common Article 3 and APII, consistent with international norms applicable at the time of the charged conduct, consistent with the general principles of law recognized by civilized nations, and constitutes conduct in violation of the common law of armed conflict. Congress acted within the scope of its constitutional authority in defining terrorism as an offense in the 2006 M.C.A. and in making such conduct punishable by military commission.
Applying the elements in the M.M.C. Part IV, ¶ 6(25)bB, supra p. 50, to the facts in the Specification of Charge III reveals that at trial the Government proved, by legal and competent evidence, beyond a reasonable doubt that appellant:
(1) was an AUEC see 2006 M.C.A. § 948(a), supra nn. 22-24, 53;
(2) provided material support or resources to an international terrorist organization engaged in hostilities against the United States," M.M.C. Part IV, ¶ 6(25)bB(1), when he provided himself and various services to bin Laden and al Qaeda by preparation of various propaganda products intended for al Qaeda recruiting and indoctrination training, and incited persons to commit terrorism; facilitated the pledges of loyalty to bin Laden and prepared the propaganda declarations styled as Martyr Wills for two suspected September 11, 2001 hijackers/pilots, researched the economic effect of those attacks on the United States and provided the results to bin Laden, and operated and maintained data processing equipment and media communications equipment for the benefit of bin Laden and other al Qaeda leaders and to al Qaeda an international terrorist organization. Al Qaeda was engaged in hostilities against the United States from at least February 1999. The Specification of Charge III, ¶¶ e, g, h, j;
(3) intended to provide such material support or resources to such an international terrorist organization," M.C.M. Part IV, ¶ 6(25)bB(2), as demonstrated by his "a. traveling to Afghanistan with the purpose and intent of joining al Qaeda; b. meeting with Saif al `Adl, the head of the al Qaeda Security Committee, as a step toward joining the al Qaeda organization; c. undergoing military-type training at an al Qaeda sponsored training camp then located in Afghanistan near Mes Aynak; d. pledging fealty, or "bayat" to the leader of al Qaeda, Usama bin Laden, joining al Qaeda." The Specification of Charge III, ¶¶ a-d;
(4) knew that such organization has engaged or engages in terrorism," M.M.C. Part IV, ¶ 6(25)bB(3), as established by al Qaeda's "violent attacks on the United States' embassies [in] Nairobi, Kenya and Dar es Salaam, Tanzania [on] August 7, 1998; on the U.S.S. COLE [near] Aden, Yemen [on] October 12, 2000, and; at various locations in the United States [on] September 11, 2001"); the Specification of Charge III; and
(5) That "the conduct took place in the context of and was associated with hostilities." M.M.C. Part IV, ¶ 6(25)bB(4), as shown by a series of violent actions by al Qaeda against the United States and bin Laden's declarations of his plans to attack the United States.
Providing material support for terrorism as codified and charged provided comprehensive notice of both the conduct in issue and the elements of the offense. In fact, the Government was required to prove that the material support provided satisfied both objective and subjective elements.
The objective elements include an actus reus: appellant's provision of himself as a member of al Qaeda and various services as material support for al Qaeda; common element 1—"alien unlawful enemy combatant element;" see supra pp. 1182-87, common element 2—that the conduct took place "in the context of and was associated with an armed conflict," and that the recipient of the support was "an international terrorist organization engaged in hostilities against the United States." See supra pp. 1187-93. As alleged, the Government was required to prove that al Qaeda was "then engaged in hostilities against the
The subjective elements include both a mens rea or intent element, and scienter or knowledge element. Specifically, the 2006 M.C.A. requires that the accused "intentionally provides material support and resources" to such an international terrorist organization, with "kn[owledge] that such organization has engaged or engages in terrorism." 2006 M.C.A. § 950v(25).
Review of the elements of "providing material support for terrorism" amply demonstrates that appellant's charged conduct is not an inchoate offense. Instead, the charged offense makes punishable the provision of "material support or resources to an international terrorist organization engaged in hostilities against the United States," with knowledge of that organization's past or ongoing terrorism and with specific intent to "provide material support" to that international terrorist organization. This offense is akin to providing direct support to an ongoing criminal enterprise, in this case one engaged in terrorism, with knowledge of that enterprise's past or ongoing crimes and with specific intent to support that criminal enterprise.
Providing material support for terrorism is essentially co-perpetrator liability, analogous to membership in a criminal organization in that the essence is cooperation for criminal purposes, and akin to aiding and abetting, or complicity. As such, the theory of individual criminal liability has long been recognized as a general principle of law under the law of armed conflict and by civilized nations. This is particularly true where the accused voluntarily joins an organization, with knowledge of that organization's systematic engagement in criminal activity. See Hamdan, 801 F.Supp.2d at 1299-1304, 2011 WL 2923945 at *32-*35. We recall two related and long-standing legal principles. In 1865, Attorney General James Speed explained that the act of "unit[ing] with banditti, jayhawkers, guerillas, or any other unauthorized marauders is a high offence against the laws of war; the offence is complete when the band is organized or joined." 11 Op. Atty. Gen. at 312, see supra p. 1186. Similarly in 1942, the Supreme Court commented, "Unlawful combatants are ... subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." Quirin, 317 U.S. at 31, 63 S.Ct. 2 (emphasis added; citations omitted). There is also ample support for this conclusion in international jurisprudence.
The London Charter established the International Military Tribunal (IMT) at Nuremburg "for the just and prompt trial and punishment of the major war criminals of the European Axis."
Article 9 of the London Charter empowered the IMT to "declare ... that the
Six organizations, with about 2,000,000 members in Germany and about 500,000 in the U.S. zone, were indicted as criminal organizations before the IMT.
The IMT determined that the SA, Reich Cabinet, and General Staff and High Command (GSHC) were not criminal organizations and declared three other charged organizations criminal: the Leadership Corps of the Nazi (National Socialist German Workers') Party, the SS, the Secret State Police (Gestapo) and the SD (the Gestapo and SD were considered as one group because of their close working relationship). 22 T.M.W.C., supra n. 36, at 501-23. With respect to the three organizations declared criminal, "the court suggested, despite its inability to bind zonal governments, that future trials for criminal membership ought to include stiff due process guarantees." Jonathan Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said; 109 Colum. L.Rev. 1094, 1161 (2009) (citing 22 T.M.W.C., supra n. 36, at 499). Although members of the convicted organizations
In accordance with Article 10 of the charter the competent national authorities (e.g. Nuremberg Military Tribunals (NMT)) tried individuals for membership in the organizations declared criminal by the IMT before national, military and occupation courts. In some cases, the indictments before the NMT included four counts "corresponding to the categories of crime defined" in Control Council No. 10. Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials under Control Council No. 10 (Taylor Report) 64-72, 79 (Aug. 15, 1949) (citing the "Medical," "Justice," and "Pohl" cases). Count One—Common Design or Conspiracy; Count Two—War Crimes; Count Three—Crimes Against Humanity; and Count Four—Membership in Criminal Organizations.
There were 12 trials conducted by the NMT administered by the United States with American judges. Id. at 35-36. Each trial included a group of defendants and the cases are generally referred to by the name of one lead defendant, type of case, common organization, or other trait of the accused.
Eighty-seven 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. Taylor Report, supra n. 82, at 93. The level of culpability of those convicted solely of membership in a criminal organization varied widely. "The great bulk of SS officers and Nazi Party officials were tried, if they were tried at all, before local German `denazification' boards (Spruchkammern)."
Doctor Helmut Poppendick, tried during the medical cases, 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 T.W.C., supra n. 60, at 186, 248-50. The tribunal found the evidence "insufficient to sustain guilt under counts two and three of the indictment," (war crimes and crimes against humanity), although the tribunal noted that Poppendick "at least had notice of [the experiments] and of their consequences." Id. at 252. The tribunal found Poppendick guilty of membership in an organization declared criminal, and sentenced him to ten years imprisonment. Id. at 253, 299.
"Konrad Meyer-Hetling was the chief of the planning office within the Staff Main Office." 5 T.W.C., supra n. 60, at 156. 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 Tribunal found him guilty of only membership in a criminal organization, namely that he was a member of the SS, id. at 157, 165, and sentenced him to time served. Id. at 165.
In the Flick Case, defendants Flick and Steinbrinck were charged 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 committed by ... principally the ... SS." 6 T.W.C., supra n. 60, at 23. The indictment charged the defendants, as members of the group "Friends of Himmler ..., which, ... 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 [the charge] is that as members of the Himmler Circle of Friends, Flick and Steinbrinck with knowledge of the criminal activities of the SS contributed funds and influence to its support." Id. at 1216.
The Tribunal reasoned that where clear crimes against humanity and war crimes were committed, an "organization which on a large scale is responsible for [crimes such as "mass murders"] 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, ... certainly an accessory to such crimes." Id. at 1217. The Tribunal noted that the monetary contributions commenced before the criminal activities of the SS were widely known, that the prosecution did not prove that the money contributed was directly used for criminal activities, that defendants "played but a small part in the criminal program of the SS," and that some of the money was likely used for cultural purposes. Id. at 1219, 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. 1220-21. The Tribunal found Flick and Steinbrinck
With respect to Steinbrinck the Tribunal noted that: "[h]e did not seek admission into the SS"; "[h]is 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. Yet the Tribunal found Steinbrinck guilty of "membership, subsequent to 1 September 1939, in the ... [SS], declared to be criminal by the International Military Tribunal, and paragraph 1(d) of Article II of Control Council Law No. 10." Id. at 25, 1223. Both were sentenced to confinement, Flick to seven years and Steinbrinck to five years. Id. at 1223.
Although the concept of organizational guilt was not used for the hundreds of thousands of people potentially liable under the London Charter and the decisions of the IMT, many businessmen, doctors, and jurists were tried by military tribunals in the American Occupied zone for their membership in these four criminal organizations.
Hamdan, 548 U.S. at 696, 126 S.Ct. 2749 (Thomas & Scalia, JJ., dissenting); see also 2 T.W.C., supra n. 60, at 298-300 (sentences in The Medical Case); Taylor Report, supra n. 82, at 91.
Similarly, in Einsatzgruppen, a U.S. Tribunal sitting at Nuremberg tried members of Einsatz units for a large number of murders, and noted that:
More recently the Convention against Transnational Organized Crime
The 2006 M.C.A. uses language which is akin to the criminal organization provisions of the Nuremburg Charter, as implemented by the IMT. In fact, the crime of conspiracy and criminal organizations were the subject of correspondence from the uniformed services senior military legal advisors and topics of discussion during Congressional hearings.
The 2006 M.C.A. is consistent with the IMT's suggestion "that future trials for criminal membership ... include stiff due process guarantees" to prevent injustice. Bush; supra n. 88, at 1161 (citing 22 T.M.W.C., supra n. 36, at 499). Providing material support for terrorism includes stringent procedural safeguards and comprehensive factual determinations which must be satisfied before a conviction may be returned or punishment imposed.
The charged conduct readily meets the requirements of membership in a criminal organization. Appellant pledged fealty to bin Laden and joined al Qaeda, an armed non-state international terrorist organization, engaged in armed conflict as a belligerent, not entitled to either combatant immunity or POW protection. From the time he joined al Qaeda until his capture in 2001, al Qaeda was engaged in hostilities and terrorism against the United States. Appellant had knowledge that al Qaeda engaged in terrorism before he joined and intentionally provided material support and resources to al Qaeda from February 1999 through December 2001.
That support included providing himself as a member of al Qaeda and various services including propaganda products intended for al Qaeda recruiting and indoctrination training; inciting others to commit terrorism; facilitating pledges of loyalty to bin Laden and preparing the propaganda declarations styled as Martyr Wills of two suspected September 11, 2001 hijackers/pilots; operating and maintaining data processing equipment and media communications equipment used to obtain the first reports of the September 11 attacks to bin Laden and other al Qaeda leadership; and researching the economic effect of those attacks on the United States and providing the results of his research to bin Laden.
Similar to the IMT's declaration of groups and organizations as "criminal organizations," Congress stated that an unlawful enemy combatant includes a member of al Qaeda, not otherwise a lawful combatant in the 2006 M.C.A.
Finally, this proposition is also consistent with the long-held U.S. view expressed through successive U.S. Army Field Manuals that unprivileged belligerents who engage in hostilities are subject to punishment under the law of armed conflict. See supra pp. 1186-88 (quoting 1914 Manual ¶¶ 369, 371, and 373; 1956 FM 27-10, ¶¶ 80, 81, and 82).
The Government has made a "substantial showing," see supra n. 32, that appellant's charged conduct, including his membership in al Qaeda, an international terrorist organization, and intentional provision of material support and resources to al Qaeda, with knowledge that al Qaeda engaged in or engages in terrorism and was engaged in armed conflict with the United States, constituted an offense
As articulated in our recent decision in Hamdan, the relatively recent, yet widely accepted, theory of individual criminal liability known as "joint criminal enterprise" (JCE) provides additional support for the conclusion that the charged formulation of providing material support for terrorism was punishable by military commission when the offense occurred.
JCE has been adopted or recognized as a theory of individual criminal liability based upon one's participation in a criminal enterprise under customary international law in various treaties and international tribunal decisions since at least the 1990s.
"Dusko Tadić was the first defendant tried before an international tribunal[, the ICTY,] since post-World War II courts ceased operating.
The Appeals Chamber concluded that it was not limited to the liability theories specified in the ICTY statute reasoning that:
Also known as the common plan or purpose doctrine, the Appeals Chamber identified three types of JCE "basic," "concentration camp," and "extended." Tadić Judgment, supra n. 89, ¶¶ 196, 202, 203.204. We find the "basic" and "extended" categories of JCE particularly relevant here. The general actus reus requirements are the same for all three categories, while the mens rea elements are substantially different.
The Appeals Chamber summarized the objective elements, or actus reus, of JCE provided for in the ICTY statute as:
Prosecutor v. Tadić, Case No. IT-94-1-A, 38 ILM 1518 ¶ 227 (ICTY Appeals Chamber Judgment, July 15, 1999) (emphasis added). Tadić Judgment, supra n. 89, ¶ 227 (emphasis in original).
The Appeals Chamber concluded that the mens rea element differs according to the category of common design under consideration summarized as follows:
Id. at ¶ 228 (emphasis added). See Prosecutor v. Brdanin, IT-99-36-A, ¶¶ 365, 411, 429 (ICTY Appeal Chamber Judgment Apr. 3, 2007).
The evidence needed to prove participation in, and thus liability for participation in a JCE, is therefore distinct and dependent upon the type of JCE in issue. In Tadić, the Trial Chamber found no evidence that the accused had taken an actual part in the killings charged. Id. at ¶¶ 178-83. The Appeals Chamber, however, overturned the Trial Chamber and convicted Tadić, relying on the concept of common purpose. Id. at ¶¶ 230-37. The Appeals Chamber stated that criminal responsibility under Extended JCE "for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willing took that risk." Id. at ¶ 228 (emphasis in original). As Tadić actively took part in the attack on the town, and was involved in beating a resident, the Appeals Chamber found him criminally liable because he shared the intent to ethnically cleanse the town of Jaskici of its non-Serb population. Id. at ¶¶ 232-33. He was, therefore, held to be responsible for the five deaths since they were perpetrated in the course of and were a foreseeable consequence of the common plan. Id. at ¶¶ 233-34.
The JCE doctrine, which extends individual criminal liability to each member of an organized criminal group for crimes committed by the group within the common plan or purpose, and requires an overt act in support of the offense, shares many attributes of providing material support for terrorism. For example, following World War II a British military court tried two German servicemen and five civilians for war crimes in the deaths of three British airmen, who were attacked and killed by a mob while under the escort of a German soldier in the "Essen Lynching" case.
In the Milośević case, prosecutors argued that the indictments against Milośević were "all part of a common scheme, strategy, or plan on the part of the accused to create a `Greater Serbia,' a centralized Serbian state encompassing the Serb-populated areas of Croatia and Bosnia and all of Kosovo, 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."
At least three high-ranking members of the police and government, Nikola Sainović,
JCE "responsibility does not require any showing of superior responsibility, nor the proof of a substantial or significant contribution." Id. ¶ 104. JCE "does not require proof of intent to commit a crime." Prosecutor v. Brdjanin, Case No. IT-99-36-A, Decision on Interlocutory Appeal ¶ 7 (ICTY Appeals Chamber Mar. 19, 2004). See also Intent necessary to establish "Extended JCE" supra at pp. 1211-12. "There is no specific legal requirement that the accused make a significant contribution" to the JCE. Kvoécka Appeals Chamber Judgment at ¶ 97. "The contribution of the Accused need not have been either substantial or necessary to the achievement of the JCE's objectives." Id. at ¶ 98. An accused may be found guilty even if his acts or omissions do not "assist, encourage, or lend moral support" to the commission of the underlying offence. Milutinović Trial Chamber Judgment, vol. I at ¶ 103. JCE responsibility "does require participation by the accused, which may take the form of assistance in, or contribution to, the execution of the common purpose." Brdanin Appeal Chamber Judgment at ¶ 424.
Although the United States has not ratified the Rome Statute of the International Criminal Court (ICC), as of June 24, 2011, there were 115 state parties, and 139 states have signed the Rome Statute of the ICC,
Thus, the ICC statute includes a JCE theory of individual criminal liability based upon the knowing or purposeful contribution to the commission or attempted commission of such crimes by a group acting with a common purpose. The incorporation of JCE in other international conventions including the 1997 Convention for the Suppression of Terrorist Bombings are reflective of the efficacy of JCE under international law.
In response to issues specified by this Court, appellant asserts that for JCE "to be relevant here, the offenses charged would have to [establish his] co-perpetration of a specific and completed war crime," and that such "completed elements were neither alleged nor found." Brief on Specified Issue for Appellant 6. He further argues that the "Material Support charge" is not a completed offense, that it does not require intent "to further a foreign terrorist organization's illegal activities," and that "assuming the provisions of the [2006 M.C.A.] could be construed as requiring the equivalent of [JCE] liability for the underlying crimes" that appellant was not on notice that he was subject to personal liability "as a principal for underlying war crimes." Id. at 16-17 (citations omitted). We disagree.
Appellant correctly asserts that for JCE to be relevant, the specification must allege a completed offense, but contrary to his assertion, that requirement is satisfied here. For the reasons discussed supra, we conclude that the specification describes at least two theories of culpability: (1) membership in a criminal organization (e.g. intentionally joining or membership in al Qaeda, an international organization that engages in terrorism, with knowledge of that terrorism), and (2) terrorism (e.g. as a co-perpetrator of that offense).
The charged offense of providing material support for terrorism shares attributes with all three types of JCE, but most closely resembles "basic" and "extended" JCE. The charged conduct includes that appellant intentionally provided himself, as a member of al Qaeda, and various material support or resources to al Qaeda with knowledge that al Qaeda engaged in or engages in terrorism (e.g. intentional attacks on protected persons with the intent to terrorize the civilian population) and was then engaged in hostilities with the United States. Although the mens rea element of the charged offense is not identical to the mens rea requirements of either "basic JCE" or "extended JCE," it is substantially similar to the intent element of both types of JCE. See supra pp. 1211-12 and n. 89.
In fact, the mens rea requirements of the charged offense of providing material support for terrorism may be more onerous than that present in either "basic" or "extended" JCE in that the Government must prove beyond a reasonable doubt that the accused with knowledge that al Qaeda engaged in or engages in terrorism, intentionally provided himself and other services, which requires two separate mens rea findings. First, that he
At a minimum, the "extended JCE" mens rea requirement (e.g. "intent to participate in, contribute to, and further the criminal activity or criminal purpose of al Qaeda" see supra pp. 1211-12.) is implied in the specification, which provides examples of the hostilities al Qaeda engaged in both before appellant joined, and while he was a member of Al Qaeda. Indeed, the most notorious charged conduct was that appellant prepared "propaganda products including the video `The Destruction of the American Destroyer U.S.S. Cole,' to solicit material support for al Qaeda, to recruit and indoctrinate personnel to the organization and objectives of al Qaeda, and to solicit, incite and advise persons to commit terrorism," a video titled to sensationalize one of the enumerated examples of al Qaeda's violent attacks on the United States, the October 2000 attack on the USS COLE in Aden, Yemen. The Specification of Charge III, ¶ e, supra p. 48.
Even assuming arguendo that the providing material support for terrorism mens rea requirement is less arduous than that required in "Extended JCE," and as such reduces the Government's burden while expanding the scope of conduct punishable, we are convinced that Congress did not exceed its constitutional authority to define and punish offenses against the law of nations in codifying this formulation of providing material support for terrorism.
The charged conduct, of which the members ultimately returned findings of guilty, was that appellant travelled to Afghanistan with the purpose and intent of joining al Qaeda, met with a key al Qaeda figure as a step to joining al Qaeda, underwent "military-type" training at an al Qaeda sponsored training camp, pledged loyalty to al Qaeda's then leader bin Laden, and joined al Qaeda with knowledge of its terroristic activities which continued throughout the entire period charged of February 1999-December 2001.
The Government has made a "substantial showing," see supra n. 32, that the JCE theory of individual criminal liability provides additional support for the conclusion that the charged offense of providing material support for terrorism was punishable by military commission at the time committed.
"Principle VII of The Nuremberg Tribunal Report" also recognized complicity in the commission of a war crime as an offense under international law.
In the Tadić Judgment, supra n. 89, ¶ 191, the ICTY Appeals Chamber commented on the distinction between persons in organizations implicated in war crimes, particularly organizational leaders, who often are accomplices, as opposed to the physical perpetrators of the acts as follows:
One scholar recently argued in the context of genocide that:
Another scholar asserts that proof of complicity requires prosecutors "to show intentional participation in acts that contributed toward a criminal result without defendant's prior agreement toward that end." Bush, supra n. 88, at 1208. The offense of complicity further supports the conclusion that appellant's conduct violated the law of armed conflict at the time committed.
The historical U.S. practice of trying the offense of aiding the enemy by military commission provides additional support, or at a minimum, analogical support, for the conclusion that appellant's charged conduct as providing material support for terrorism was punishable by military commission.
"Enemy" is defined in the 2006 M.C.A. §§ 948a(1) and 948a(2), and it includes persons who have "purposely and materially supported hostilities against the United States." See 10 U.S.C. §§ 948a(1) and 948a(2), supra nn. 24, 53. See also Hamdan, 801 F.Supp.2d at 1298 n. 130, 2011 WL 2923945 at *31 n. 130 (quoting 2008 MCM, Part IV, ¶ 23c(1)(b)). The term, "enemy," clearly includes members of al Qaeda who have engaged in acts of terrorism. Id. at § 948a(1)(i). The elements of providing material support to terrorism are similar to the elements of Article 104, UCMJ. As Colonel Winthrop noted:
Winthrop, supra n. 32, at 777 (emphasis added). In 1916, Article of War 81,
In conclusion, the Government has made a "substantial showing," see supra n. 32, that the charged conduct, including appellant's pledge of fealty to bin Laden and membership in al Qaeda, an international terrorist organization, and intentional provision of material support and resources to al Qaeda with knowledge that
Appellant has simply proffered no persuasive argument under treaty or customary international law that membership in a terrorist organization such as al Qaeda, when engaged in armed conflict with a nation state, entitles an individual member to any special status under the law of armed conflict. To the contrary, customary practice has been to treat such persons as outside the protections of the law of armed conflict, punishable for their own criminal acts and, if membership is established, their membership in that criminal organization. The domestic laws of many nations prohibiting conduct similar to providing material support for terrorism also strongly suggest that such prohibitions constitute general principles of law recognized by civilized nations.
The statutory scheme employed by Congress in the 2006 M.C.A., including the common elements (AUEC and in the context of an armed conflict), stringent procedural safeguards and comprehensive factual determinations are consistent with international norms. Congress did not exceed its constitutional authority in choosing a name for the offense—"providing material support for terrorism" or in defining the elements of providing material support for terrorism.
Appellant had knowledge that al Qaeda engaged in terrorism before he joined and intentionally provided himself and other material support and resources to al Qaeda, including various propaganda products intended for al Qaeda recruiting and indoctrination training, and inciting others to commit terrorism. He was also convicted of facilitating the pledges of loyalty to bin Laden and preparing the propaganda declarations styled as Martyr Wills of two suspected September 11, 2001 hijackers/pilots, operating and maintaining data processing equipment and media communications equipment used to obtain the first reports of the September 11 attacks to bin Laden and other al Qaeda leadership. In addition, he was convicted of researching the economic effect of those attacks on the United States and providing the results of his research to bin Laden, and acting as media and personal secretary for bin Laden.
In light of our decision in Hamdan, 801 F.Supp.2d at 1299, 1305-10, 2011 WL 2923945 at *32, *37-*41, and consistent with our discussion, supra pp. 1202-20, appellant's charged conduct has long been punishable as membership in a criminal organization and at a minimum, each additional charged act relates directly to appellant's knowledge, intent, or actions in support of al Qaeda, an international terrorist organization with no colorable claim of legitimacy under the law of armed conflict. The similarity of the charged conduct and statutory requirements in the 2006 M.C.A. of knowledge and intent to membership in criminal organizations, the JCE theories of individual criminal liability, complicity, and aiding the enemy reinforce our holding that appellant's charged conduct violated the law of armed conflict when committed.
Appellant also asserts the military commission judge erroneously included "propaganda" and "recruiting materials" within the definition of "material support" in his instructions to the members.
We have not previously addressed what constitutes "plain error" in the context of the 2006 M.C.A. and note that neither the statute nor M.M.C. defines "plain error." The statute does limit our authority to act with respect to matters of law in that "[a] finding or sentence of a military commission under this chapter may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused." 2009 M.C.A. §§ 950f(d) and 950a(a). This limitation is also present in the UCMJ, and closely resembles that applicable in Article III courts. 10 U.S.C. § 859(a) and Fed. R.Crim.P. 52(b). See supra p. 1158.
The Supreme Court recently commented that Federal Rule of Criminal Procedure "Rule 52(b) permits an appellate court to recognize a `plain error that affects substantial rights,' even if the claim of error was `not brought' to the district court's `attention.'" United States v. Marcus, ___ U.S. ___, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012, 1017 (2010). The Court noted:
"We `review de novo the jury instructions as a whole and view them in the context of the entire trial to determine if they accurately state the governing law and provide the jury with an accurate understanding of the relevant legal standards and factual issues in the case.'" United States v. Prince, 647 F.3d. 1257, 1265 (10th Cir.2011) (quoting United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir. 2008)).
Appellant provided a variety of resources and services, including preparing
Appellant asserts that the offense of conspiracy is not recognized as a war crime under international law, and thus is not punishable by military commission. Brief for Appellant 21, 23-26. He acknowledges U.S. precedent for conspiracy prosecutions by military commission, but notes that those military commissions "exercised jurisdiction under martial-law as well as the law of war." Reply Brief for Appellant 12. Appellant emphasizes the precedent of the Hamdan plurality opinion that "the government failed to make even a `merely colorable' case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission." Brief for Appellant 25 (citing Hamdan, 548 U.S. at 598-613, 126 S.Ct. 2749); Reply Brief on Specified Issues for Appellant 12-13.
The Government argues that the constitutional authority to establish the jurisdiction of military commissions belongs to the political branches exercising their war powers. The Government asserts that terrorists are akin to "guerrillas" engaged in "irregular war," and that "conspiracy has historically violated the law of war" and been tried by military commission. Brief for Appellee 22-23, 27-29; see also 1956 FM 27-10, supra pp. 43-44, at ¶¶ 80-82. In support of this argument, the Government cites the widespread acceptance of the JCE theory of individual criminal liability, international consensus on the illegality of conspiratorial type conduct and the long-standing U.S. view that conspiracy is punishable under the law of war. Specified Issues Brief for Appellee 1-18.
These diametrically opposed assertions represent more than adversarial hyperbole. The viability of conspiracy as a war crime has long been the subject of controversy. "Some form of conspiracy has been included as a charge and often as part of a judgment in every major American war crimes trial program, from the Civil War cases to Nuremberg and Tokyo after World War II...."
The IMT at Nuremburg "ruled that its own jurisdiction, under the London Charter, extended only to conspiracy to commit crimes against peace and not conspiracy to commit war crimes or crimes against humanity." Bush at 1162, supra n. 88, at n. 235 (citing The Nurnberg Trial, 22 T.M.W.C., at 469 ("[T]he Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war.")). This controversy is also readily apparent in the Supreme Court's decision in Hamdan.
Appellant, as an AUEC "in the context of and associated with an armed conflict at various locations in Afghanistan and elsewhere, from in or about February 1999 through in or about December 2001" was convicted of conspiring: "with Usama Bin Laden, Saif al `Adl, and other members and associates of al Qaeda, known and unknown, to commit one or more substantive offenses triable by military commission, to wit: Murder of Protected Persons; Attacking Civilians; Attacking Civilian Objects; Murder in Violation of the Law of War; Destruction of Property in Violation of the Law of War; Terrorism; and Providing Material Support for Terrorism and with knowledge of the unlawful purposes of the agreement . . . willfully entered the agreement with the intent to further those unlawful purposes and knowingly committed the following overt acts in order to accomplish some objective or purpose of the agreement:
The similarity between appellant's conviction of conspiracy in the Specification of Charge I and providing material support
The 2006 M.C.A. § 950v(b)(28) defines conspiracy as:
The 2007 M.M.C., Part IV, ¶ 6(28)b, defines the elements of conspiracy as follows:
The 2006 M.C.A. defines conspiracy more narrowly than the UCMJ,
First, only agreements to "commit. . . substantive offenses triable by military commission" under 2006 M.C.A. § 950v(b)(28) are punishable as conspiracies. Consequently, to be punishable as conspiracy under the M.C.A., the offense(s) object of the agreement must be punishable under the statute.
Second, the accused must "knowingly commit[ ] an overt act in order to accomplish some objective or purpose of the agreement or enterprise." Individual criminal liability is therefore limited to persons who have themselves (1) "committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise," and (2) "knowingly" done so. Under the UCMJ and the general conspiracy statute, 18 U.S.C. § 371, individual criminal liability attaches if an overt act is committed by any party to the agreement.
Finally, conspiracy as defined in the 2006 M.C.A. § 950v(b)(28) and the 2007 M.M.C. clearly casts a wide net of potential individual criminal liability; however, we are mindful that two Congresses and two Presidents have agreed that conspiracy to commit offenses enumerated in the 2006 and 2009 M.C.A. violate the law of armed conflict and are punishable by military commission.
Each of the seven offenses alleged as objects of the conspiracy in the Specification of Charge I is defined as an offense punishable by military commission in the 2006 M.C.A. See 2006 M.C.A. §§ 950v(b)(1), 950v(b)(2), 950v(b)(3), 950v(b)(15), 950v(b)(16), 950v(b)(24), and 950v(b)(25). The first five object offenses: (1) murder of protected persons; (2) attacking civilians; (3) attacking civilian objects; (4) murder in violation of the law of war; and (5) destruction of property in violation of the law of war constitute noncontroversial, long-standing violations of the law of armed conflict punishable by military commission.
Congress did not exceed its constitutional authority by defining terrorism as an offense in the 2006 M.C.A. and in making such conduct punishable by military commission, when committed by an AUEC in the context of an armed conflict. See supra pp. 1182-90; see also Hamdan, 801 F.Supp.2d at 1287-93, 2011 WL 2923945 at *24-*27. The 2006 M.C.A. offense of terrorism is consistent with Common Article 3 and APII, supra n. 39, firmly established international norms, and general principles of law recognized by civilized nations and was applicable at the time of the conduct alleged.
Similarly, Congress acted within the scope of its constitutional authority by defining "providing material support for terrorism" as an offense in the 2006 M.C.A. and in making the conduct alleged here and in Hamdan punishable by military commission, when committed by an AUEC in the context of an armed conflict See supra pp. 1181-91; see also Hamdan, 801 F.Supp.2d at 1277-78 and nn. 48-54, 2011 WL 2923945 at *18 and nn. 48-54. In this case, we focused on the specific circumstances of appellant's pledge of fealty to bin Laden, his membership in al Qaeda, an international terrorist organization, and his intentional provision of material support and resources with knowledge that al Qaeda engaged in or engages in terrorism and was then engaged in armed conflict with the United States. See supra pp. 1188-91. Our conclusion was grounded in the customary practice of treating such persons as outside the protections of the law of armed conflict, punishable for their own criminal acts and those of the armed group of which they were a member.
Appellant was essentially charged with and convicted of conspiring and agreeing with bin Laden and other al Qaeda members to commit the seven object offenses, and with knowledge of the unlawful purposes of that agreement willfully entering into that agreement with the intent to further those unlawful purposes. He knowingly committed the enumerated overt acts "in order to accomplish some objective or purpose of the agreement"
After joining al Qaeda, appellant committed numerous additional acts "in order to accomplish some objective or purpose of the agreement" including: "preparation of various propaganda products, including the video `The Destruction of the American Destroyer U.S.S. Cole,' to solicit material support for al Qaeda, to recruit and indoctrinate personnel to the organization and objectives of al Qaeda, and to solicit, incite and advise persons to commit Terrorism;" acting as a personal secretary and media secretary for bin Laden; facilitating the pledges of loyalty to bin Laden and preparing the propaganda declarations styled as Martyr Wills for two suspected September 11, 2001 hijackers/pilots, researching the economic effect of the acts of terrorism perpetrated on the United States by those two hijackers/pilots on September 11, 2001 and providing the results to bin Laden, and operating and maintaining data processing equipment and media communications equipment for the benefit of bin Laden and other al Qaeda leaders. The Specification of Charge I ¶¶ d-j.
This offense as codified and charged provided comprehensive notice of both the conduct in issue and the elements of the offense. In fact, the Government was required to prove both objective and subjective elements.
The objective elements include an actus reus, which is appellant's agreement with bin Laden and others to commit the offenses that are the object of the conspiracy, and the charged overt acts included his pledge of fealty to bin Laden and membership in al Qaeda as well as the various support and services he personally provided al Qaeda; his status as an AUEC; and that the conduct took place "in the context of and was associated with an armed conflict." The Specification of Charge I.
Additionally, the subjective elements include both a scienter or knowledge element, and mens rea or intent element. Specifically, that the accused "knew the unlawful purpose of the agreement" and "joined willfully, that is, with the intent to further its unlawful purpose." 2007 M.M.C., Part IV, ¶¶ 6(28)b(2)-(3), supra p. 1223. The military commission judge's instructions to the members articulated these requirements and serve to illustrate the subjective elements of the offense.
Likewise, "[t]he act of uniting with "banditti, jayhawkers, guerillas, or any other unauthorized marauders" has long violated the law of armed conflict and that "offence is complete when the band is organized or joined," 11 Op. Atty. Gen. at 312, see supra p. 1186. Recent treaty law acknowledges participation in a transnational organized criminal group in a manner similar to the charged conspiracy as punishable conduct. See Convention against Transnational Organized Crime, art. 5, quoted at p. 69 and cited supra n. 90. In addition, punishment of such conduct under domestic criminal law reflects widespread agreement on this fundamental principle.
Appellant's charged conspiracy is directly akin to the criminal organization provisions of the Nuremburg Charter in Articles 9 and 10, as implemented by the IMT. See discussion supra pp. 1203-05. We also find that appellant's conduct readily meets
Additionally, and like the conduct charged as providing material support for terrorism, see JCE supra pp. 1210-15 and complicity supra pp. 1215-16, the offense of conspiracy as charged is essentially co-perpetrator or principal liability, akin to aiding and abetting, or complicity, theories of individual criminal liability long recognized under the law of armed conflict, and in the domestic law of civilized nations. This is particularly true where, as here, the accused voluntarily conspires and agrees with al Qaeda's leadership to commit at least seven separate offenses against the law of armed conflict and with knowledge of and intent to further the unlawful purposes of that agreement, knowingly commits various overt acts to accomplish some objective of that agreement including pledging loyalty to bin Laden, joining al Qaeda, and providing various services and resources to both. The mens rea element as defined in 2006 M.C.A. § 950v(b)(28), supra p. 1223, and the 2007 M.M.C., Part IV, ¶¶ 6(28)b, supra p. 1223, and as applied by the military judge at trial also duplicates that required for "Basic JCE" (shared intent to perpetrate a certain crime), and "Extended JCE" (intent to participate in and further the criminal activity or the criminal purpose of a group). See supra pp. 1211-12.
The domestic laws of many nations address conspiracy and conspiracy-like conduct and include similar language. See supra n. 76, for the locations of documents in this section.
In Afghanistan, before December 2001, "alliance in crime" was defined as "the joining of two or more persons in committing a specific or an unspecified felony or misdemeanor, or joining in equipment, facilities or supplementary works of the said crimes, provided that the alliance is regular and continuous, even if it has taken place at the formation stage of crime or for a short time." Afghanistan Penal Code, arts. 49, 50 (Oct. 7, 1976), Issue No. 13, Ser. No. 347. "Every individual shall be sentenced, . . . even if the felony for which the alliance was made has not been initiated." Id. at art. 50(1). Current Afghanistan law criminalizes "unit[ing] with another person in order to participate in the commission of [a terrorist] offence." Law on Combat against Terrorist Offenses, Art. 18 (July 2008). See also supra p. 1198
Brazilian law prohibits "association of more than three persons for the purpose of undertaking criminal activities." SCOR Report S/2001/1285 at 11 (Dec. 27, 2001) (citing the Penal Code of Brazil, art. 288). See also pp. 1198, 1236 (discussing Brazilian terrorism laws).
Egyptian law has criminal penalties for "anyone who invites another to join even a mere agreement aimed at the commission of crime in connection with terrorist activity, even if his invitation is not accepted." SCOR Report S/2001/1237 at 4 (Dec. 21, 2001) (citing Arts. 88(b), 97, 98 of the Egypt Penal Code). It also penalizes "anyone who has knowledge of the existence of a plan to commit such crimes and fails to inform the authorities thereof." Id.
Under French Law, "criminal conspiracy of a terrorist nature . . . [includes] `participation in a group or an understanding established for the purpose of preparing, by means of one or more material actions, one of the aforementioned terrorist acts.'" SCOR S/2001/1274 at 18 (Dec. 27, 2001) (citing Act 96-647 of 22 July 1996). "The offense of criminal conspiracy for the purpose of planning terrorist acts is applicable to persons not only within French territory but also outside the country." Id. at 18-19 (citing Article 706-16 of the Code of Criminal Procedure).
German law punishes anyone who:
SCOR Report S/2006/527 at 3 (July 17, 2006) (citing the German Penal Code § 129a as promulgated on Nov. 13, 1998).
The law in India provides for punishment of anyone who "conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act" as well as "[a]ny person who is a member of a terrorist gang or a terrorist organization, which is involved in terrorist acts. . . ." Terrorist and Disruptive Activities (Prevention) Act, 1987, Part II §§ 3(3) and 3(5).
In Indonesia, a "`conspiracy' exists as soon as two or more persons agree to commit a crime." Penal Code of Indonesia, as amended May 19, 1999, art. 88. Whoever "conspire[s to commit various crimes] shall be punished . . ." Id. at art. 187. Any person having knowledge of a conspiracy to commit . . . [various] crime[s] at a moment when the commission of said crimes may still be prevented, [who] deliberately omits to give timely adequate notice thereof either to the . . . police, or to the threatened person, shall, if the crime was committed, be punished.. . ." Id. at art. 164. See also pp. 105 (discussing Indonesian laws against terrorism).
In Italy, a person "`organizing or directing an association which propose[s]'" terrorist violence, can be sentenced "`without any violence being committed.' Further, `mere participation in such an organization'. . . even if they ha[ve] never participated in a violent act" could result in a prison
Id. at 5. On December 15, 2001, the Italian Government enacted Law No. 438, and "introduced two new . . . types of [punishable] conduct." SCOR Report S/2006/611 at 3 (Aug. 4, 2006). First, "promoting, setting up, organizing, heading or funding associations whose intent is to commit acts of violence for the purposes of terrorism and international terrorism" became a crime. Id. Second, "supporting any one of the persons who participate in terrorist associations by . . . providing them with food, hospitality, and means of transportation or communication" became a new offense under Italian law. Id.
Under the Japanese Penal Code, "culpability for acts of conspiracy or instigation where the ultimate criminal act is not completed [is applied] under limited circumstances." Tom Stenson, Inchoate Crimes and Criminal Responsibility Under International Law, at 11-12, http://www.law. upenn.edu/journals/jil/jilp/articles/1-1_Stenson_Thomas.pdf. For example, [t]he Subversive Activities Prevention Law allows prosecution for instigation of a homicide for political reasons, even where no homicide actually occurs." Stenson, at 11 (citation omitted). "Insurrection, assisting the enemy, inducing a foreign nation to attack the home country, or waging private war are all crimes for which simple incitement or conspiracy to bring them about is sufficient to incur punishment." Id. at 11-12 (citing Japanese Criminal Code, Art. 129, 131, 134, 135, 138, 139, 140, 141 (1978)). "[W]hen a principal offender commences the commission of a crime, the provision or collection of funds is punishable as `aiding and abetting,' or as `complicity.'" SCOR Report S/2001/1306 at 7 (Dec. 27, 2001). "[T]he provision or collection of funds alone is not punishable under the Penal Code" when "the principal does not commence the commission of a crime." Id.
Pakistani law authorizes prosecution for abetting terrorism and includes membership in specified terrorist groups. See supra p. 1200. Whoever abets an offense shall be punished, even if the offence is not committed. Pakistan Penal Code, Part V ¶¶ 115, 116 (Oct. 6, 1860); see also id. Abetment by Conspiracy §§ 107, 108. A criminal conspiracy requires an agreement to commit an offense and an act done in pursuance thereof by one or more of the parties to such an agreement. Id. at Part VA § 120A, as inserted by Criminal Law (Amendment) Act, VIII of 1913. Conspiracy to take various actions against the State or Government of Pakistan is a criminal offense. Id. at Part VI § 121A, as
Russian Federal Act. No. 95528-3 of December 2001 "increased liability for creation of terrorist organizations, management of such organizations, recruitment to terrorist groups, supply of weapons and training of persons to commit crimes of a terrorist nature, as well as financing of terrorist organizations." SCOR Report S/2001/1284 at 4 (Dec. 27, 2001). Terrorist activity includes:
Russian Federation Federal Law No. 130-FZ, art. 3 (July 25, 1998), replaced by Federal Law No. 35-FZ of Mar. 6, 2006 (containing similar definition of terrorist activity).
Under Swedish law, "[c]onspiracy is defined as a decision to act in collusion with another person, or an offer to undertake or execute a crime or the attempt to incite another person to do so." SCOR Report S/2001/1233 at 3 (Dec. 24, 2001); Swed. Penal Code, Ch. 23 §§ 2, 4, (through May 1, 1999 amendments). "All acts constituting an offence within the scope of and defined in the international criminal law conventions for the suppression of terrorism are . . . criminal offences in Sweden." Id. at 9.
The law in the United Kingdom provides that membership in a proscribed terrorist organization is an offense, however, not participating in its activities when it was proscribed is a defense to this crime. U.K. Terrorism Act 2000, Ch. 11 § 11 (July 20, 2000). Under Section 12(1) of this chapter, "[a] person commits an offence if—(a) he invites support for a proscribed organization, and (b) the support is not, or is not restricted to, the provision of money or other property" and under Section 12(2) of this chapter:
U.K. Terrorism Act 2000, Ch. 11 § 12(1) 12(2) (July 20, 2000), http://www. legislation.gov.uk/ukpga/2000/11/contents/ enacted. Courts in the United Kingdom have jurisdiction over "offences of conspiracy to commit [a terrorism] offence, . . . inciting such an offence, attempting such an offence and aiding, abetting, counselling or procuring such an offence." SCOR Report S/2006/398 at 4 (June 16, 2006) (citing Terrorism Act of 2006, § 17).
The Government has made a "substantial showing," see supra n. 32, that the conduct alleged, including appellant's (an AUEC's) agreement with bin Laden and others to commit the object offenses, with knowledge of and intent to further the unlawful purposes of that agreement, and commission of the enumerated overt acts including meeting with and pledging personal loyalty to bin Laden, and membership in al Qaeda was punishable by military commission as an offense against the law of armed conflict when committed.
Appellant asserts that the inchoate offense of solicitation is not recognized as a war crime under international law, and thus is not punishable by military commission. Brief for Appellant 25-26.
The Government again argues that the constitutional authority to establish the jurisdiction of military commissions belongs to the political branches exercising their war powers. The Government cites descriptions of similar conduct as war crimes to include "recruiting for [the enemy] army," and "distributing publications or declarations calculated to excite opposition to the federal government or sympathy with the enemy." Brief for Appellee 28 (quoting Winthrop, supra n. 32, at 833, 841).
Appellant, as an AUEC "in the context of and associated with an armed conflict," was charged in the Specification of Charge II with and convicted of:
Charge Sheet, in violation of 10 U.S.C. §§ 950u, 950v(b)(1), 950v(b)(2), 950v(b)(3), 950v(b)(15), 950v(b)(16), 950v(b)(24), and 950v(b)(25).
The Specification of Charge II states that Appellant:
Charge Sheet. We next turn to the statutory definition of the solicitation offense.
Solicitation is defined in the 2006 M.C.A. § 950u as follows:
The 2007 Manual for Military Commissions defines the elements of solicitation as: "(1) That the accused wrongfully solicited, ordered, induced, or advised a person or persons to commit a substantive offense triable by military commission; and (2) That the accused intended that the offense actually be committed." 2007 M.M.C., Part IV, ¶ 5b.
The charged solicitation, as instructed upon by the military commission judge
The seven object offenses of the solicitation specification are the same as the object offenses of the conspiracy specification. See supra pp. 1224-25. Each of these seven object offenses is defined as an offense punishable by military commission in the 2006 M.C.A., when committed by an AUEC in the context of an armed conflict. See supra pp. 1188-90; see also Hamdan, 801 F.Supp.2d at 1277-78 and nn. 48-54, 2011 WL 2923945 at *18 and nn. 48-54. These object offenses are punishable by military commission as violations of the law of armed conflict, and the Specification of Charge II and Charge II were charged and applied in accordance with the statutory and manual requirements, and provided appellant comprehensive notice of the conduct in issue and the elements of the offense. As charged, the Government was required to and did prove both objective and subjective elements.
The actus reus of the offense is the wrongful solicitation, order, inducement or advice through the "preparing and assisting in the preparation of various propaganda products, including but not limited to the video `The Destruction of the American Destroyer U.S.S. Cole,'" to commit the offenses that are the object of the solicitation. The objective elements include that actus reus, common element 1—"alien unlawful enemy combatant element," see p. 1182 and supra nn. 23, 24, 53, and common element 2—that the conduct took place "in the context of and was associated with an armed conflict." See supra p. 1188. While the mens rea required is the specific intent that those offenses be committed.
In addition, the Specification of Charge II also stated that the propaganda products were "intentionally designed, made, distributed and shown in order to recruit and indoctrinate personnel to the organization and objectives of al Qaeda, an international terrorist organization" and to solicit, "induce, and advise said persons to commit Murder of Protected Persons" among other offenses that violate the law of war.
Since World War II inchoate liability for crimes against peace and genocide have been recognized as offenses under international law. This is appropriate given the seriousness and insidiousness of the object offenses.
The IMT at Nuremburg referred to "Crimes Against Peace" or aggressive war as "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole,"
"The United Nations [subsequently] endorsed the doctrine [of Crimes against Peace], as part of a more general endorsement of the Nuremberg proceedings and results." Bush, supra n. 123, at 2388 (citing UN General Assembly Res. 95, A/Res/95(I) (Dec. 11, 1946); other citations omitted). We note that al Qaeda's ultimate goal, establishment of an Islamic Caliphate spanning the Arabian Peninsula, North Africa and Asia, renders al Qaeda's actions in pursuit of that goal akin to aggressive war.
The IMT's disparate findings in the cases of two Nazi defendants, the publicist Julius Streicher and Head of the Radio Division of the Propaganda Ministry Hans Fritzsche, inform our analysis of punishing incitement through propaganda under the law of armed conflict. 1 T.M.W.C. supra n. 36, at 304, 338. When the IMT heard the case of Julius Streicher, the Nazi publisher of the anti-Semitic weekly newspaper, Der Sturmer, there was no extant treaty or established custom prohibiting genocide or incitement to commit genocide. However, the IMT concluded "Streicher's incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with War Crimes as defined by the Charter, and constitutes a Crime against Humanity." Id. at 304. The IMT "linked Streicher's propaganda with the war crimes that had been carried out . . . to establish a parallel to the specific intent requirement in criminal law."
The IMT acquitted Hans Fritzsche, a senior official in Goebbel's Ministry of Popular Enlightenment and Propaganda and host of a weekly radio show. Id. at 182, 336, 338. The prosecution argued that Fritzsche "incited and encouraged the commission of War Crimes, by deliberately falsifying news to arouse in the German People those passions which led them to the commission of atrocities[.]" Id. at 337-38. However, the IMT reasoned:
Id. at 338. The judgment suggests that the IMT's "reasons for acquitting Fritzsche lay in the fact that, first, he lacked the necessary intent or such intent had not been proved to the Tribunal's satisfaction and second, his speeches were not sufficiently direct or unequivocal in calling for the murder of the Jewish people." Wibke Timmermann, Incitement in International Criminal Law, 88 Intl. Rev. of the Red Cross, No. 864, 823, 829 (Dec. 2006) (citations omitted).
"Thus, the [IMT's] death sentence for Streicher and acquittal of Fritzsche suggested that, to be actionable, incitement [to commit genocide] required specificity and a direct link to the actions for which it called." Jamie Metzl, Rwandan Genocide and the International Law of Radio Jamming, 91 Am. J. Intl. L. 628, 637 (1997) (citation omitted). Fritzsche's superior, Otto Dietrich, was "a Reichsleiter in the Leadership Corps of the Nazi Party in 1932. He maintained that position until the collapse. He was the Party Press Chief, Hitler's Press Chief, Reich Press Chief, and State Secretary in the Ministry of Propaganda." 14 T.W.C., supra n. 60, at 861. Dietrich was tried by the NMT at part of "The Ministries Case." 11-14 T.W.C., supra n. 60. He was convicted of two charges, Count Five: "War Crimes and Crimes Against Humanity; Atrocities and Offenses Committed Against Civilian Populations" and Count VIII, "Membership in Criminal Organizations." 14 T.W.C., supra n. 60, at 467, 576, 855, 861. The Tribunal found his press and periodical directives, "expressed purpose was to enrage Germans against the Jews, to justify the measures taken and to be taken against them, and to subdue any doubts which might arise as to the justice of measures of racial persecution to which Jews were to be subjected." Id. at 576.
Following World War II, the United Nations General Assembly unanimously adopted the Genocide Convention. See supra n. 113. The Genocide Convention defined "genocide" as:
Id. at art. II(a)-(e). The Genocide Convention makes punishable not only genocide,
In the Akayesu Trial Judgment, the International Criminal Tribunal for Rwanda (ICTR) emphasized the inchoate nature of the crime by declaring that, "genocide clearly falls within the category of crimes so serious that direct and public incitement to commit such a crime must be punished as such, even where such incitement failed to produce the result expected by the perpetrator." Prosecutor v. Akeyesu, Case No. ICTR-96-4-T, (Judgment) ¶ 562 (Trial Chamber, Sept. 2, 1998).
Similarly, "public provocation to commit terrorism" has been acknowledged as punishable under general principles of law recognized by civilized nations, including organizations and individual nations. Article 5(2) of The Council of Europe Convention on the Prevention of Terrorism (European Terrorism Convention) (May 16, 2005) mandates each party to criminalize "public provocation to commit a terrorist offence. . . when committed unlawfully and intentionally, as a criminal offence under its domestic law." The European Terrorism Convention defines "public provocation to commit a terrorist offence" as: "the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed." Id. The European Terrorism Convention also mandates passage of legislation prohibiting "[r]ecruitment for terrorism," defined as "means to solicit another person to commit or participate in the commission of a terrorist offence, or to join an association or group, for the purpose of contributing to the commission of one or more terrorist offences by the association or the group." Id. at art. 6(1).
The similarities between the prohibition against solicitation and recruitment in the European Terrorism Convention and solicitation as defined in the 2006 M.C.A. § 950u, supra pp. 1231-32, and charged here are manifest. The similarities include the actus reus ("public provocation to commit a terrorist offence" and public message), and mens rea (specific intent).
The OIC Convention on Combating International Terrorism, see supra n. 74, recognized the importance of preventing and combating terrorist crimes by cooperation and exchange of information regarding "[m]eans of communications and propaganda utilized by terrorist groups" and "arresting those accused of committing a terrorist crime . . . or being implicated in such acts either by assistance, collusion, instigation, or financing." Id. at Ch. I, Div. II, art. 4.1(b) and 4.4(a)(emphasis added).
The general principles of law recognized by civilized nations also recognize inchoate liability for conduct akin to solicitation, inducement, or advice to another to commit terrorism. Following is a summary of those laws from various nations arranged alphabetically.
Before December 2001, under Afghan law, it was a crime to organize or encourage another to join an organization whose aim is to disturb or nullify "one of the basic and accepted national values in political, social, economic or cultural spheres of the State or makes propaganda for its extension or attraction to it, by whatever means it may be." Afghanistan Penal Code, arts. 221, 222 (Oct. 7, 1976). Current
Brazilian law criminalizes the "association of more than three persons for the purpose of undertaking criminal activities," and the "recruitment of new members for terrorist groups would fall under the definition of this crime." SCOR Report S/2001/1285 at 11 (Dec. 27, 2001) (citing the Penal Code of Brazil, art. 288). Brazilian law also punishes "support to an association, party, committee, class entity or group whose goal is to change the current regime or of the Rule of Law, either by violent means or through serious threat." SCOR Report S/2006/680 at 3 (Aug. 21, 2006) (citing the National Security Law of Dec. 14, 1983, art. 16). "[I]ncitement to the commission of any crime in general" violates Brazilian law. Id. at 9 (citing the Penal Code of Brazil, art. 286). "[P]ublic apologia (or glorification) of any crime or criminals" is prohibited. Id. (citing the Penal Code of Brazil, art. 287).
Egyptian criminal law punishes promoting a terrorist act:
SCOR Report S/2006/351 at 10-11 (May 31, 2006) (citing Egypt Penal Code, art. 86 as amended by Act No. 97 of 1992 on terrorism). Incitement of a terrorist crime is punishable even "if no consequence resulted therefrom." Id. at 11 (citing Egypt Penal Code, art. 95 as amended by Act No. 97 of 1992 on terrorism).
French law "criminalizes incitement to and advocacy of terrorism." SCOR Report S/2006/547 at 3 (July 20, 2006) (citing Act of 1881, art. 24). "Article 23 defines the range of means used for such incitement, which can occur orally in a public place, or on any written material accessible to the public." Id. "Incitement to terrorism is punishable even if it has not resulted in an offence." Id.
Under German law, "Public Incitement to Crime," is an offense that provides, "[w]hoever publicly, in a meeting or through dissemination of writings, [and other media] incites an unlawful act, shall be punished as an inciter." SCOR Report S/2006/527 at 4 (July 17, 2006) (citing German Penal Code § 111 as promulgated on Nov. 13, 1998); see also id. at 3 (citing German Penal Code §§ 26, 30(1)). It is "irrelevant in this context whether the incitement is successful or not." Id. at 4 (citing German Penal Code § 111). "Whoever publicly, in a meeting or through dissemination of writings, approves of certain enumerated unlawful acts in a manner that is capable of disturbing the peace, is subject to punishment, . . . this includes urging or glorifying terrorism as necessary and justified." Id. (citing German Penal Code § 140(2)).
The law in India punishes whomever "advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act." 1987 Terrorist and Disruptive Activities (Prevention) Act (1987 TDAPA), pt. II, ¶ 3(3). The 1987 TADAPA defines "abet" as "i. the communication or association with any person or class of persons who is engaged in assisting in any manner terrorists . . .; [and] ii. the passing
The Penal Code of Indonesia contains two sections to stop recruiting of terrorists. First, "[a]ny person who orally or in writing incites in public to commit a punishable act, a violent action against the public authority or any other disobedience, either to a statutory provision or to an official order issued under a statutory provision, shall be punished. . . ." SCOR Report S/2001/1245 at 6 (Dec. 26, 2001) (citing Penal Code of Indonesia, Book II on Crimes, Ch. V on Crimes Against the Public Order, art. 160). Second, "[a]ny person who by one of the means . . . attempts to induce others to commit a crime, shall, if it does not result in the crime or a punishable attempt thereto, be punished." Id. at 7 (Penal Code of Indonesia, Book 11 on Crimes, Ch. V on Crimes Against the Public Order, art. 163 bis). The Republic of Indonesia, Government Regulation in lieu of Legislation No. 1/2002 on Combating Criminal Acts of Terrorism, criminalizes assisting, facilitating, and inciting terrorist acts. Id. at §§ 11-15 (Oct. 18, 2002).
Under Italian law, incitement to commit an act of terrorism is punishable, but must involve a genuine risk of inducing someone to commit the actual crime. SCOR Report S/2006/611 at 3 (Aug. 4, 2006). The incitement itself need not be successful, nor the crime actually committed. Id. A second set of measures adopted just after the bomb attacks in London in 2005 added terrorist recruitment and training to the list of terrorism crimes. Id. at 4 (citing Italian Criminal Code, art. 270 (July 31, 2005)); Elies van Sliedregt, European Approaches to Fighting Terrorism, 20 Duke J. Comp. Intl. L. 413, 420 (2010) (citing Italian Criminal Code of Italy, art. 270); see also Italian Criminal Code, arts. 39-40 (heightened penalties for anyone who incites or directs others under his authority to commit crimes).
The law in Japan provides:
SCOR Report S/2006/402 at 3 (June 16, 2006) (Penal Code, arts. 61, 62; Penal Code, Subversive Activities Prevention Act, arts. 38-40; Explosives Control Act, art. 4). The Japanese Criminal Code "only assigns culpability for acts of conspiracy or instigation where the ultimate criminal act is not completed under limited circumstances . . . [such as] prosecution for instigation of a homicide for political reasons, even where no homicide actually occurs." Stenson, at 11-12 (citing Shigemitsu Dando, The Criminal Law of Japan; The General Part 222 (B.J. George, trans., 1997)). Similarly, "[i]nsurrection, assisting the enemy, . . . [and] waging private war are all crimes for which simple incitement or conspiracy to bring them about is sufficient to incur punishment." Id. (citing Japanese Criminal Code, arts. 129, 131, 134, 135, 138, 139, 140, 141 (1978)).
The criminal law of Pakistan punished abetting terrorism, including membership of terrorist groups. See supra p. 1200 (citing SCOR Report S/2001/1310 at 6 (Jan. 10, 2002)). Whoever abets an offense
Russian law broadly criminalizes incitement to engage in terrorist activity and recruitment to a terrorist group. See supra p. 1230 (quoting Federal Act. No. 95528-3 of Dec. 2001 and Russian Federation Federal Law No. 130-FZ, art. 3 (July 25, 1998), replaced by Federal Law No. 35-FX of Mar. 6, 2006).
Under Spanish law, "membership in an armed group or terrorist groups and organizations is defined as a criminal offense,. . . [as is] inciting others, conspiring or purposing to commit these offenses of illegal association." José Luis de la Cuesta, Anti-Terrorist Penal Legislation and the Rule of Law: Spanish Experience at 4, ¶ 3.2, (2007), (citing Arts. 515.2, 516.2, 519) http://www.penal.org/IMG/ JLDLCTerrorism.pdf. The Organic Act No. 7/200 modified "exalting terrorism" as an offense in Penal Code, art. 578, and makes punishable "any praise or justification of terrorist offenses or of those involved in committing them through any form of public expression or broadcast. Exalting terrorism also covers acts that serve to discredit, scorn or humiliate the victims of terrorist offenses, their families or relations." Id. at 7, ¶ 4.4 (citation omitted).
Chapter 23, section 4, of the Swedish Penal Code provides:
SCOR Report S/2001/1233 at 3 (Dec. 24, 2001) (emphasis in original). In response to the question from the UN Security Council, "what offences in your country prohibit (i) recruitment to terrorist groups?" Sweden responded, "[a] person who publicly urges or otherwise attempts to entice people to commit a criminal act can be sentenced for inciting rebellion. The act can be committed orally, through a publication or in other messages to the public." Id. at 5. "A person who recruits people for military or comparable service without authority of the Government can be sentenced for unlawful recruiting." Id.
In the United Kingdom, under the common law it is an offense to incite another to commit an offense. SCOR Report S/2006/398 at 3 (June 15, 2006). "There is no need for the offense to be attempted or committed." Id. Section 1 of the Terrorism Act of 2006 provides that it is a criminal offense:
Id. at 3.
Under U.S. law, "`[d]irect incitement [to commit] crimes against peace, crimes against humanity and war crimes' has long been recognized as an offense punishable by military commission." 1956 FM 27-10 ¶ 500. Civil War era military commissions
The following examples are illustrative of such offenses: (1) falsely assuming "the character of a military officer" and then using such assumed character to "incite others to commit acts of hostility against the United States . . . contrary to the laws and customs of are in like cases," S.O. 28, pp. 406-27 (1862) (J. Owen); (2) aiding, assisting, and inciting others to damage railroad property, see S.O. 160, p. 457-64 (1862) (W. Petty); (3) "[i]nciting unlawful warfare" by "incit[ing], induc[ing] and procur[ing] persons to take up arms and commit acts of hostility against the . . . United States contrary to the laws and customs of war in like cases," see G.O. 15, p. 475 (1862) (E. Wingfield); (4) "[v]iolation of the laws of war" by "incit[ing] certain persons unknown to make an armed attack upon the dwelling-house . . . of a citizen of Missouri" with the intention that the occupants be murdered, see G.O. 19, p. 478 (1862) (J. Barnes); (5) "[v]iolations of the laws of war by the publication" in pamphlets and articles of information designed to "comfort the enemy and incite [the population] to rebellion" or to "incite to acts of insurrection," see S.O. 160, p. 453-57 (1862) (E.Ellis); and (6) "[i]nciting insurrection" by making speeches, circulars, and other communications to "arouse sentiments of hostility" against the United States Government."
In response to a U.N. Security Council resolution 1624 (2005), the United States listed three U.S. measures to prohibit and prevent incitement to commit terrorism stating:
SCOR S/2006/397 at 3 (June 16, 2006). See also SCOR S/2006/69 (Feb. 3, 2006); SCOR S/2004/296 (Apr. 15, 2004); SCOR
The U.S. submission to the UN explains:
SCOR S/2006/397 at 5 (June 16, 2006).
In 1996, Sheik Omar Amad Ali Abdel Rahman ("Rahman") was convicted of violating 18 U.S.C. § 2384 (conspiracy to advance the forceful overthrow of the U.S. Government), inter alia for his involvement in terrorist plots to bomb New York City facilities and to assassinate certain persons. Rahman's codefendants actually heeded the exhortations of his sermons and were incited to commit acts of terrorism. Id. at 7 (citing United States v. Rahman, 189 F.3d 88, 116-17 (2d Cir. 1999)).
Inchoate liability under international law continues to evolve. Review of the general principles of law recognized by civilized nations reflects this to be particularly true in the case of terrorism. This is consistent with the evolutionary nature of common law of armed conflict, particularly in light of both the hybrid nature of terrorism and the awareness of the threat terrorism presents to both domestic stability and international peace and security.
Much like Julius Streicher, appellant's efforts to incite others to murder and terrorize Americans reflect both his specific intent to arouse others to commit such atrocities and specific intent that such atrocities actually be committed. Unlike the IMT's reasoning in the case of Hans Fritzsche, we find appellant's position and official duties sufficiently important to establish beyond a reasonable doubt, that "he took part in originating or formulating propaganda campaigns . . . . intended to incite [others, both named and unnamed] to commit atrocities on [Americans and others based solely upon their nationality or physical presence in the United States]." See 1 T.M.W.C., supra n. 36, at 338 (discussing the IMT's basis for finding Streicher guilty).
Similarly, appellant's incitement and efforts in support of bin Laden and al Qaeda to justify the intentional killing of civilians and destruction of their property based solely upon their nationality or physical presence in the United States, and his actions equate to conduct and intent akin to that punishable as genocide. Terrorism, as advocated by appellant and employed by al Qaeda, constitutes a modern incarnation of the insidious evils present in aggressive war and genocide, and exhibit the specific intent and contextual nexus to the actions to be actionable as an offense. Solicitation, as defined, alleged, and proven in this case, is far removed from an inchoate offense involving mere criminal suggestion or prompting. Rather, in its present guise, it is criminal incitement, recruitment, indoctrination, and motivation to violence, deliberately targeting without distinction persons and interests of a particular nationality. Appellant's charged conduct is an offense against the law of nations. His relevant criminal conduct was prohibited under the laws of Afghanistan, where the conduct was committed; and the United States, the object of the solicited offenses, and the nation attacked by al Qaeda.
Upon consideration of the extant treaty law, customary international law, and general principles of law recognized by civilized nations, we conclude that the Government has made a "substantial showing," see supra n. 32, that public solicitation, inducement, or advice to commit any of the charged object offenses (e.g. to attack protected persons and property in violation of the laws of armed conflict, to commit terrorism, or to recruit members for or otherwise indoctrinate members in an international terrorist organization) violates international norms. Moreover, Congress did not exceed the scope of its constitutional authority to define and punish offenses under the law of nations, by making such conduct, when committed by an AUEC in the context of or associated with a non-international armed conflict, punishable by military commission.
Appellant asserts he was convicted on the basis of political speech in violation of the First Amendment.
Following the Supreme Court's decision in Holder v. Humanitarian Law Project, 561 U.S. ___, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010), appellant sought and was granted leave to file a supplemental brief. Appellant acknowledged that the Court's opinion in Holder "suggested that `independent advocacy' can be distinguished from advocacy `in coordination with or at the direction of'" a terrorist organization. Supplemental Brief on Holder v. Humanitarian Law Project for Appellant 2 (citing Holder, 130 S.Ct. at 2723). Given the Supreme Court's determination that Congress could lawfully prohibit the latter conduct, appellant "concede[d] that the clear implication of the Court's opinion is that otherwise protected speech can underlie an overt act in support of a charge of [18 U.S.C.] § 2339B, if done in the manner the Court described." Id. Nevertheless, appellant maintains that the Government's pervasive exploitation of "[his] thoughts, [ ] beliefs, [ ] ideals" as incriminating evidence warranted special instruction from the military commission judge that his "political beliefs were not on trial." Id. (citing United States v. Salameh, 152 F.3d 88, 112 (2d Cir.1998)).
For the reasons discussed below, we disagree. We hold the First Amendment does not apply to appellant's conduct, and if it did, the First Amendment was not violated. Further, we hold the military commission judge did not err in his instruction to the members.
The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. Amend. I. It is well established that "the unconditional phrasing of the First Amendment was not intended to protect every utterance." Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).
The Supreme Court has not specifically held a noncitizen speaking abroad is protected by the First Amendment. In fact, in Boumediene v. Bush, 553 U.S. 723, 770, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), Justice Kennedy wrote that before that decision, 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." In Boumediene,
In Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), the Court concluded that 21 German citizens, who had been captured in China, tried and convicted of war crimes by an American military commission and incarcerated in a prison in Germany, had no right of habeas corpus. See Rasul v. Bush, 542 U.S. 466, 475, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (discussing Eisentrager). The Eisentrager opinion was based on six factors critical to the question of the prisoners' constitutional entitlements. Id. The six factors were that the prisoner is:
Id. at 475-76, 124 S.Ct. 2686 (citing Eisentrager, 339 U.S. at 777, 70 S.Ct. 936). Both Justice Stevens and Justice Kennedy distinguished the six factors when applied to the detainees held at Guantanamo.
In Rasul, the Supreme Court held that the federal courts had jurisdiction to hear the detainees' habeas corpus cases noting that nothing in the Court's precedent categorically excludes aliens detained in military custody outside the United States from the "privilege of litigation." Id. at 484, 124 S.Ct. 2686 (emphasis added). In Boumediene, Justice Kennedy discussed another case involving American citizens invoking the rights of the Fifth and Sixth Amendments to indictment and jury trial, Reid v. Covert, 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352 (1956), that held the Fifth and Sixth amendments apply to U.S. citizen military dependents charged with criminal conduct in a foreign country. Boumediene, 553 U.S. at 759-62, 128 S.Ct. 2229. In explaining why there seems to be a difference when the Supreme Court held the Constitution applied and when it held that it did not apply, Justice Kennedy noted practical considerations were at play in the decisions of Reid (for place of both confinement and trial) and Eisentrager (post-WWII reconstruction, security, logistics of transporting convicted Germans to the U.S., among other factors). Id. at 761-62, 128 S.Ct. 2229. Justice Kennedy concluded, in Boumediene, 553 U.S. at 772, 798, 128 S.Ct. 2229.
The end result in Boumediene and in Rasul was access to a judicial forum and the privilege of litigation based upon a fundamental constitutional right, the writ of habeas corpus. There is a distinction to be drawn between habeas corpus rights and First Amendment protections. Both Justice Stevens and Justice Kennedy distinguished Eisentrager with respect to rights to habeas corpus, and the Eisentrager opinion contains comment on constitutional rights in general which proves insightful in analyzing the issue at hand. In Eisentrager, 339 U.S. at 784, 70 S.Ct. 936, the Supreme Court wrote:
In 1990, the Supreme Court held that the Fourth Amendment does not extend to a search by American authorities of the Mexican residence of a Mexican citizen and resident who had no voluntary attachment to the United States. United States v. Verdugo-Urquidez, 494 U.S. 259, 264-75, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). The Fifth Amendment's privilege against self incrimination is a fundamental trial right of criminal defendants, whereas the Fourth Amendment prohibits unreasonable searches and seizures occurring when committed, not at trial. Id. at 264, 110 S.Ct. 1056. The Court also emphasized that the First, Second, Fourth, Ninth, and Tenth Amendments provide rights or powers reserved to "the people," id. at 264-66, 110 S.Ct. 1056. "The people" relates:
Id. at 265-66, 110 S.Ct. 1056. The Court also discussed the Insular Cases,
Assuming arguendo appellant is entitled to the protections of the First Amendment, we next address the First Amendment challenge to the M.C.A. Appellant contends his speech was political speech and thus protected by the First Amendment. He cites Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) and United States v. Aguilar, 883 F.2d 662, 684 (9th Cir.1989), and states the facts of the case at hand do not rise to the level of inciting or producing imminent lawless action. Brief for Appellant 9-11; Reply Brief 9.
First, we must examine the M.C.A. to determine if it is facially overbroad. To review a law challenged on First Amendment grounds, the Supreme Court applies the overbreadth doctrine. United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).
Id. at 292, 128 S.Ct. 1830 (citations omitted). A law is overbroad, and hence void, if it "does not aim specifically at evils within the allowable area of state control, but on the contrary sweeps within its ambit
In our review of the M.C.A., we focus on the three offenses of which appellant was charged and convicted: (1) providing material support and resources, including himself, to al Qaeda, an international terrorist organization then engaged in hostilities with the United States; (2) conspiring with Usama bin Laden and other members and associates of al Qaeda to, inter alia, commit murder, attack civilians and civilian objects in violation of the law of war, commit terrorism, and provide material support for terrorism; and (3) soliciting various persons to commit these same offenses.
The 2006 M.C.A. specifically addresses offenses fundamental to a Government's first duty to those governed—protection of its citizens. Charges I and II, the conspiracy and solicitation charges, are clearly speech-based offenses. However, as the Second Circuit held in Rahman, appellant was "not immunized from prosecution for such speech-based offenses merely because one commits them through the medium of political speech.... [If appellant's] speeches crossed the line into criminal solicitation, procurement of criminal activity or conspiracy to violate the laws, prosecution is permissible." Rahman, 189 F.3d at 117.
Next we look to Charge III and the definition used in all three charges for providing material support for terrorism. See supra n. 69. The definition of material support includes prohibitions on certain types of speech, i.e., training and expert advice and assistance, but these prohibitions are directly connected to providing material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism. 2006 M.C.A. § 950v(b)(25). The creation of propaganda and recruiting materials are within the definition's terms "any product ... or services" and necessarily involve speech. See supra p. 1220.
Upon review of the entire M.C.A., we find the law is specifically aimed at the crime of terrorism, and that it does not intrude into an area of protected speech.
Assuming arguendo the M.C.A. suppressed appellant's political speech, we will subject the M.C.A. to strict scrutiny to determine if any such restrictions "further[ ] a compelling interest and [are] narrowly tailored to achieve that interest." See Citizens United v. Federal Election Commission, ___ U.S. ___, 130 S.Ct. 876, 899, 175 L.Ed.2d 753 (2010) (citing Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (WRTL)).
The Supreme Court has categorically declared several types of speech to be unprotected under the First Amendment. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (child pornography depicting actual children); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (fighting words); Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (threats of violence); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (speech that imminently
"[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg, 395 U.S. at 447, 89 S.Ct. 1827 (footnote omitted). The defendant in Brandenburg was convicted based upon a filmed Ku Klux Klan rally which depicted hooded Klansmen brandishing firearms, parading around a burning cross, and shouting despicable racial epithets. The film showed the defendant proclaiming to the armed crowd, "if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken." Id. at 446, 89 S.Ct. 1827. Quoting from an earlier decision, the Supreme Court noted that "the mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." Id. at 448, 89 S.Ct. 1827 (quoting Noto v. United States, 367 U.S. 290, 297-98, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961)). The Court continued, "A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control." Id. In reversing the conviction, the Supreme Court held that the statute in question purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Moreover, "neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not to distinguish from incitement to imminent lawless action." Id. at 448-49, 89 S.Ct. 1827 (footnote omitted).
Id. at 117. The following language falls outside the protections of the First Amendment: When Rahman was talking about killing President Mubarak: "make up with God ... by turning his rifle's barrel to President Mubarak's chest, and killing him.... Depend on God. Carry out this operation. It does not require a fatwa... you are ready in training, but do it. Go ahead." Id. In consultation regarding the bombing of the United Nations Headquarters, Rahman told another, "Yes, it's a must, it's a duty." Id. In discussing the bombing of the UN, he advised that it would be "bad for Muslims," but added that they should "find a plan to destroy or to bomb or to ... inflict damage to the American Army." Id. Rahman's speeches were not simply the expression of ideas, but in some instances constituted the crime of conspiracy to wage war on the United States, and solicitation of attack on the U.S. military installations, as well as the murder of the Egyptian President. The Second Circuit concluded "words of this nature—ones that instruct, solicit, or persuade others to commit crimes of violence—violate the law" and are not protected by the First Amendment. Id.
In United States v. Sattar, a federal district court found the defendant guilty despite his claims the test in Brandenburg was not met.
Appellant argues that Supreme Court opinions have "clarified that for lawless action to be `imminent' the speaker must be addressing specific individuals, who are intended and likely to act without further deliberation." Brief for Appellant 17 (citing Hess v. Indiana, 414 U.S. 105, 108-109, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973)). Hess is distinguishable on its facts. The Hess case involved a U.S. citizen defendant who was protesting the war and blocking a street on the campus of Indiana University. When he was required to move by the sheriff, he loudly said, "We'll take the ... street later." Hess, 414 U.S. at 107, 94 S.Ct. 326. The Court held that Hess's speech "was not directed to any person or group of persons" and found that he was not "advocating, in the normal sense, any action." Id. at 108-09, 94 S.Ct. 326. In the case at hand, although specific individuals were not named in The Video, appellant was clearly advocating violent, lawless actions (to kill and destroy) against specific targets (Americans) by an identified group (Muslims). We note the affirmed cases of Rahman and Sattar discussed above contained similar threats against a specific large group or category of targets as opposed to merely threats against specifically named individuals.
Applying strict scrutiny to the M.C.A., we conclude Congress had a compelling interest in prohibiting terrorism even if it impacted certain speech. Congress narrowly tailored the M.C.A. to focus on criminal activities of terrorists. We find appellant's claim he was convicted for making political speech unpersuasive. The Video's purpose was to incite listeners to join al Qaeda and kill Americans and others. Appellant himself described The Video as "one of the best propaganda videos the al Qaeda had to date ... influential and produced good results for [al Qaeda]." Tr. 534. A government expert testified The Video may have been the number one al Qaeda propaganda video. The Video was repeatedly shown during training at al Qaeda safehouses and terrorist training camps. The Video was an important training and indoctrination tool for al Qaeda and is commercially available in numerous languages.
The obvious purpose of The Video was to incite others to join al Qaeda and to commit crimes against Americans or other U.S. interests or to support those who do. We find The Video constitutes incitement to imminent lawless action. Unlike Brandenburg, this is a case where The Video goes beyond mere advocacy, to that of incitement. The Video was aimed at inciting viewers to join al Qaeda, to kill Americans, and to cause destruction. The target was quite specific: all Americans and American interests. Like Rahman and
Appellant argues that prosecution for his creation of The Video has a chilling effect on U.S. citizens in their exercise of the right to dissemination of information. Brief for Appellant 11-14. In Citizens United, 130 S.Ct. at 908, the Supreme Court declared:
Appellant's prosecution does not adversely affect the rights of U.S. citizens to receive such information. The Video is readily available on the Internet and in numerous foreign languages. Possession or viewing of The Video is not criminalized by the M.C.A.—providing material support for terrorism is the conduct that is prohibited. Nothing in the M.C.A. prohibits access to information such as The Video.
Appellant asserts the military commission judge failed to instruct the members of a First Amendment defense that appellant could be convicted only if The Video was intended and likely to bring about specific and imminent illegality. This issue is raised for the first time on appeal. Appellant made no objection to the proposed instructions during trial, and raised no issue of the need for a First Amendment defense instruction. Pursuant to the 2007 M.M.C., Part II, R.M.C. 920(f), the issue is waived absent plain error. See supra p. 1219 (explaining plain error rule for instructions). As noted above, appellant has no First Amendment right to commit the charged offenses, thus he has no right to have the instruction provided to the members. In review of the entire record, we find no error, let alone plain error, in the military commission judge's failure to sua sponte provide a First Amendment defense instruction.
Assuming arguendo, that it was error since the instruction is of a "constitutional dimension," we will examine the issue. United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The Supreme Court has stated that "[a]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). The Ninth Circuit found that "[w]here there is some evidence. . . that the purpose of the speaker or the tendency of his words are directed to ideas or consequences remote from the commission of the criminal act, a defense based on the First Amendment is a legitimate matter for the jury's consideration." United States v. Freeman, 761 F.2d 549, 551 (9th Cir.1985). The Freeman decision established, as a threshold for a First Amendment jury instruction, that there be "some evidence" that the defendant's purpose or the likely effect of his words was "remote" from the commission of the crime. A First Amendment defense instruction need not be given when the words are more than
The Supreme Court's observation in Holder is relevant to the instant case:
Holder, 130 S.Ct. at 2728.
We find The Video's message to be more than mere advocacy, as discussed above. The message of The Video was an incitement to imminent lawless activity. A First Amendment defense instruction was not required.
Appellant states that the Military Commissions Act is a bill of attainder because Congress has, through the 2006 M.C.A., unconstitutionally identified him as an AUEC and punished him by depriving him of "previously enjoyed rights." Brief for Appellant 30-36.
A bill of attainder "legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial."
Appellant argues that he is being punished merely for being an AUEC.
The term AUEC, in this context, is used synonymously with "unprivileged enemy belligerent." 2006 M.C.A. §§ 948a(1), (3); 2009 M.C.A. § 948a(7). Far from constituting a determination of guilt, this designation identifies one's status under the law of armed conflict including the Geneva Conventions. 2006 M.C.A. § 948c; 2009 M.C.A. § 948c; supra p. 20 and n. 21 (discussing military commission jurisdiction). The argument also ignores the additional procedural and substantive protections provided by the M.C.A., including the presumption of innocence and the Government's burden of proving every element of each offense, to include AUEC status, beyond a reasonable doubt by legal and competent evidence. The M.C.A., as implemented through the M.M.C., explicitly provides inter alia for example, the presumption of innocence, the right to have the AUEC finding and guilt determined beyond a reasonable doubt by impartial members, and the right to appellate review. 2006 and 2009 M.C.A. §§ 949a; 949l(c)(1); 950c. See also infra n. 138; see also e.g., 2007 M.M.C., Part II, R.C.M. 506, 701, 703, 806, 906, 912, 914, 916, 918, 920, 921, Chapters X-XII (listing numerous rights of the accused to a fair trial and substantial post-trial rights).
Appellant also asserts that his punishment is the deprivation of rights that he "previously enjoyed." Specifically, he claims that before his status as an AUEC, he somehow enjoyed the rights to confront evidence against him, to petition for writ of habeas corpus and to protection against self-incrimination under the Constitution of the United States of America. Brief for Appellant 32. He also asserts that his status as an AUEC deprived him of his previously enjoyed rights under the Geneva Conventions. Id. at 33.
The Supreme Court has recognized three tests when analyzing whether a statute inflicts forbidden punishment: historical, functional, and motivational tests. Nixon, 433 U.S. at 472-78, 97 S.Ct. 2777. Therefore, the inquiry requires the court to determine "(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent
In Nixon, the Supreme Court articulated the historical test standard by describing the history of bills of attainder. Nixon, 433 U.S. at 473, 97 S.Ct. 2777. In England, bills of attainder "originally connoted a parliamentary Act sentencing named individual or identifiable members of a group to death." Id. However, the prohibition against bills of attainder "also proscribes enactments originally characterized as bill of pains and penalties, that is, legislative acts inflicting punishment other than execution." Id. at 474, 97 S.Ct. 2777. The Court stated that "[o]ur country's own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations...." Id.
Appellant relies on cases which have expanded the notion of punishment to incorporate employment rights but those have little relevance here. In Lovett, the Supreme Court struck down a law designed to permanently bar three named, executive employees from government service based on their Congressionally-determined political beliefs. Lovett, 328 U.S. at 313-14, 66 S.Ct. 1073. A special subcommittee of the Appropriations Committee, which charged those individuals with "subversive beliefs and associations" adjudicated their cases in secret executive sessions where those charged were not permitted to be present or represented by counsel. Id. at 310-11, 66 S.Ct. 1073. The Court found that the law "inflict[ed] punishment without the safeguards of a judicial trial." Id. at 316, 66 S.Ct. 1073. The Court listed certain procedural safeguards required to ensure "the people of this country [are not subjected to] punishment without trial," including the following rights: to be tried by a jury; to confront witnesses; to be represented by counsel; to be informed of the charges; to the right against self-incrimination; to not be subjected to double jeopardy, the ex post facto application of laws or cruel and unusual punishment. Id. at 317-18, 66 S.Ct. 1073. Despite the fact that appellant is an AUEC, the M.C.A. provides the very procedural safeguards identified by the Supreme Court as required for citizens of this country to have a fair trial. 2006 and 2009 M.C.A. §§ 948-950; See also infra n. 138.
In each case cited by appellant as support for historically-recognized punishment, the decisions were based on U.S. citizens whose discernable rights were permanently denied without the requisite due process. As such, each case is readily and necessarily distinguishable. Further, the Geneva Conventions do not establish a private right of action, as appellant asserts; however, the United States has obligated itself to abide by those conventions. 2009 M.C.A. § 948b(e). The Supreme Court held in Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), that Common Article 3 of the Geneva Conventions is applicable in military commissions and noted that the United States must fulfill its obligations. Id. at 631-35, 126 S.Ct. 2749. We conclude that the military commission convened here under the 2006 M.C.A. qualified as a "regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." See Hamdan, 801 F.Supp.2d at 1261 n. 7, 2011 WL 2923945 at *7 n. 8 (quoting Article 3(1)(d) of GCIII, supra n. 6.) The military commissions authorized in the M.C.A., afford extensive procedural guarantees, including the right to counsel, rights to present and respond to evidence and to present
Assuming arguendo that Common Article 3 grants privately enforceable rights, the M.C.A. affords those rights.
Just as the Court stated in Nixon, we too find here that "no feature of the challenged Act falls within the historical meaning of legislative punishment." Nixon, 433 U.S. at 475, 97 S.Ct. 2777. Appellant argues that "Congress unconstitutionally" denied him eight previously available rights. However, appellant fails to articulate any viable legal support for his assertion of those rights.
The functional test analyzes whether "nonpunitive legislative purposes" are reasonably furthered given the burdens imposed. Id. at 475-76, 97 S.Ct. 2777. Considering the facts and circumstances and the purpose of the M.C.A., just as in Nixon, "legitimate justifications for the passage of the Act are readily apparent." Appellant argues that the "M.C.A. sought to reverse holdings of the Supreme Court as to the rights enjoyed by a known class of litigants." Brief for Appellant 34. As previously stated, the M.C.A. defines the class of individuals subject to the jurisdiction of military commissions. We hold that by defining AUECs for jurisdictional purposes and limiting jurisdiction thereto, the M.C.A is "an act of nonpunitive legislative policy making." Nixon, 433 U.S. at 477, 97 S.Ct. 2777.
The "third recognized test of punishment is strictly a motivational one: inquiring whether the legislative record evinces a congressional intent to punish." Id. at 478, 97 S.Ct. 2777. Appellant cites remarks from congressional floor debates and hearings as support of congressional intent to pass the M.C.A. as a punitive
Appellant contends that "[w]hat distinguishes bills of attainder from Congress' legitimate authority to make distinctions between classes of offenders is whether Congress is legislating `by rules of general applicability.'" Brief for Appellant 30-31 (citing United States v. Brown, 381 U.S. 437, 461, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965)).
Arguing the specificity requirement, appellant states that Congress may legislate "by rules of general applicability" and that "[i]t cannot specify the people upon whom the sanction it prescribes to be levied." Brown, 381 U.S. at 461, 85 S.Ct. 1707. Nor can Congress designate persons "described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons." Selective Service System, 468 U.S. at 847, 104 S.Ct. 3348 (citations omitted). However, the Nixon Court cautioned against extending the already "broad and generous ... protection against bills of attainder" by presuming that "the Constitution is offended whenever a law imposes undesired consequences on an individual or on a class that is not defined at a proper level of generality." Nixon, 433 U.S. at 469-470, 97 S.Ct. 2777. The Supreme Court continued to articulate the standard, stating:
Id. at 470-71, 97 S.Ct. 2777 (footnote and citations omitted).
Additionally, appellant argues that because there is nothing he can do to avoid the label of AUEC, the law is an unconstitutional bill of attainder. Brief for Appellant 31. However, appellant fails to articulate how his status determination as an AUEC, which initially serves as a jurisdictional predicate, constitutes punishment. The Supreme Court has expressly recognized that "[e]ven if the specificity element were deemed satisfied . . . the statute would not necessarily implicate the Bill of Attainder Clause." Selective Service System, 468 U.S. at 851, 104 S.Ct. 3348. Appellant correctly states that AUEC is a status. Brief for Appellant 31. Status as
Finally, appellant argues that, because the AUEC status "was devised in the midst of an intensely contested Congressional election and the fifth anniversary of the September 11th Attacks," the M.C.A. did not establish a "regularly constituted court." Brief for Appellant 36. Although appellant alleges that the M.C.A. substituted a legislative for a judicial determination of guilt, nothing in his arguments "suggest that Congress was intent on encroaching on the judicial function of punishing an individual for blameworthy offenses." Nixon, 433 U.S. at 479, 97 S.Ct. 2777.
Though more recent cases analyze whether punishment was administered without a judicial trial, historically, the inquiry and concern was whether the legislative enactment created "the deprivation without any of the ordinary forms and guards provided for the security of the citizen in the administration of justice by the established tribunals." Cummings, 71 U.S. at 323, 71 U.S. 277. Congress properly acted within its enumerated power to enact legislation that gives substantive and procedural rights for the administration of justice in this case. Congress had no obligation under the Bill of Attainder Clause to establish courts or military commissions or tribunals identical to an Article III court.
The M.C.A. is not a bill of attainder, as it lawfully establishes comprehensive procedures for the impartial adjudication of guilt required by the Constitution and the law of armed conflict.
We resolve this assignment of error against appellant for the reasons stated in Hamdan, 801 F.Supp.2d at 1313-23, 2011 WL 2923945 at *44-*50.
The Government asserts that appellant waived the First Amendment, Ex Post Facto, Bill of Attainder, and Equal Protection challenges raised in his appeal by failing to raise those issues below. Brief for Appellee 3-5. Specifically, the Government
Appellant responds that the Government is wrong for three reasons. Appellant's Reply of 12 November 2009 at 2-7. First, appellant's challenges are not subject to implied waiver. Specifically the First Amendment challenge issue addresses the constitutional interests of society as a whole, and as such appellate courts are "obligat[ed] to make an independent examination of the whole record in order to make sure the judgment does not constitute a forbidden intrusion on the field of free expression." Id. at 2-3 quoting Bose Corp. v. Consumers Union of the U.S., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). He also asserts the Ex Post Facto, Bill of Attainder and Equal Protection challenges are jurisdictional in nature and thus not subject to waiver. Id. citing Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (First Amendment); Milhouse v. Levi, 548 F.2d 357 (D.C.Cir.1976) (Ex Post Facto ); United States v. Jones, 527 F.2d 817 (D.C.Cir. 1975) (Due Process).
Second, the record does not support a conclusion that he knowingly or voluntarily waived those issues or empowered trial defense counsel to do so on his behalf. Id. at 3-6. Specifically, that trial defense counsel's acknowledgements that appellant did not wish to be represented by counsel, "to have no further communication with counsel," and that appellant did not "authorize[ ] [trial defense counsel] to speak on his behalf or to represent him in any way ...." reflect that trial defense counsel was not empowered to waive those issues. Appellant also argues that "[the military judge effectively] allowed him to represent himself," that he raised the issues in controversy in colloquies with the military judge, that the military judge did not inform him of the purported waiver or ask "what he wanted to do," and instead broadly referred to his "boycott" as preserving appellate challenges to the Military Commissions Act (MCA). Id.
Third, application of waiver is a matter of discretion for this Court and our duty to ensure that findings are correct in law and fact counsels against waiver.
The 2006 M.C.A. does not explicitly address waiver or forfeiture of issues not raised at trial, such as at issue here. However, R.M.C. 905(e) states: "[f]ailure by a party to raise defenses or objections or to make motions or requests which must be made before pleas are entered under section (b)
The principles of "waiver" and "forfeiture" are similarly applied in U.S. Courts and Courts-Martial. See Federal Rules of Criminal Procedure 52(a), (b); 10 U.S.C. § 859(a) and R.C.M. 905(b). "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the `intentional relinquishment or abandonment of a known right.'" United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); see also United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F.2009). "Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." Olano, 507 U.S. at 733, 113 S.Ct. 1770 (citations omitted).
The distinction between the terms "waiver" and "forfeiture" is important. "If an appellant has forfeited a right by failing to raise it at trial, courts review for plain error." Gladue, 67 M.J. at 313 (citations omitted). See also supra p. 1219. When an appellant knowingly and voluntarily waives a known right at trial, it is generally "extinguished and may not be raised on appeal." Gladue, 67 M.J. at 313 (citing Olano, 507 U.S. at 733-34, 113 S.Ct. 1770).) The authority and responsibility of service Courts of Criminal Appeals to determine whether the findings and sentence "should be approved," includes discretionary authority "to determine the circumstances, if any, under which it would apply waiver or forfeiture." Nerad, 69 M.J. at 146-47 (citing United States v. Claxton, 32 M.J. 159, 164 (C.M.A.1991)(approving Court of Criminal Appeals decision ordering rehearing in light of evidentiary error under circumstances in which waiver would ordinarily preclude relief).
The Government's argument and appellant's reply raise potentially complex and wide-ranging issues including applicability of the principles of "waiver" and "forfeiture" to a military commission convened under the 2006 M.C.A., and of defense counsel's authority and responsibility when an accused voluntarily absents himself from a proceeding having repeatedly recorded his objections to counsel's performance of any role as his defense counsel.
At trial the appellant failed to "make the timely assertion of" the First Amendment, Ex Post Facto, Bill of Attainder, and Equal Protection challenges before the military commission. There were no specific motions, requests, defenses, or objections to that effect raised before the commission was adjourned as required by R.M.C. 905(e). The record also reveals ambiguity surrounding detailed defense counsel's authority to act in appellant's stead when he "waived all motions," and the absence of explicit, on the record discussion of the effect of, or appellant's understanding of his voluntary absence on motions, defenses or objections.
Having previously addressed the substance of appellant's challenges and having found those challenges without merit, we need not decide whether he forfeited or waived those challenges.
Appellant argues that as a "media man," he was effectively sentenced to "life without
The Government responds that the adjudged sentence is fair and just given appellant's character and the nature and seriousness of his crimes, and requests this Court to affirm the sentence, as approved by the convening authority. The Government also asserts that appellant mischaracterizes his sentence to confinement as "life without parole" and erroneously suggests that the President is deprived of authority to grant clemency or parole in such a case.
We find both appellant's characterization of his conduct, advanced with a decidedly content-neutral view, and his arguments unpersuasive. We also decline to entertain appellant's argument that he will be indefinitely detained regardless of his conviction and sentence, as it is irrelevant. This is a matter for the political branches and beyond the scope of our authority and responsibility in determining sentence appropriateness. 2009 M.C.A. § 950f(d).
The 2009 M.C.A. requires this Court to make a de novo determination of the appropriateness of the sentence imposed. 2009 M.C.A. § 950f(d). "[We] may affirm only such ... sentence or such part or amount of the sentence, as [we find] correct in law and fact and determine[ ], on the basis of the entire record, should be approved." Id. This mandate, unparalleled in the federal civilian sector, mirrors that exercised by the military service Courts of Criminal Appeals in review of certain courts-martial.
Each sentence is judged "on the basis of the nature and seriousness of the offense and the character of the offender."
We are not required to engage in sentence comparison between specific cases:
United States v. Lacy, 50 M.J. 286, 288 (1999) (citing United States v. Ballard, 20 M.J. 282, 286 (C.M.A.1985)); see also United States v. Brock, 46 M.J. 11, 13 (C.A.A.F.1997).
"The power to review a case for sentence appropriateness, which reflects the unique history and attributes of the military justice system, includes but is not limited to considerations of uniformity and evenhandedness of sentencing decisions." United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F.2001). In execution of this highly discretionary function, we are neither required to, nor precluded from, considering sentences in other cases, even when those cases are not "closely related."
Appellant was convicted, contrary to his pleas, of: (1) providing material support and resources including himself to al Qaeda, an international terrorist organization then engaged in hostilities with the United States; (2) conspiring with bin Laden and other members and associates of al Qaeda to, inter alia, commit murder in violation of the law of war, attack civilians and civilian objects, commit terrorism, and provide material support for terrorism; and (3) soliciting various persons to commit these same offenses.
All charged offenses allege a nexus to al Qaeda during the period February 1999 through December 2001. The nature and seriousness of these offenses are manifest in the charges themselves. The objects of both the conspiracy and solicitation charges include: committing murder in violation of the law of war, attacking civilians and civilian objects, committing terrorism,
In his voluntary statements to investigators, appellant admitted on multiple occasions to traveling to Afghanistan with the intent to join al Qaeda, undergoing military-type training at an al Qaeda sponsored camp, and meeting with bin Laden following his training. During that meeting, appellant admitted discussing bin Laden's views on Islam and jihad against the United States, agreeing with those views, and then pledging personal loyalty to bin Laden. He then joined al Qaeda as a member, worked in al Qaeda's media office, and eventually took charge of that office, where he performed a number of acts to recruit, to incite others to join al Qaeda, and to indoctrinate prospective al Qaeda recruits into the al Qaeda Plan.
Appellant readily admitted developing and producing a videotape, at the personal request of bin Laden, capitalizing on al Qaeda's perfidious attack on the USS COLE in an effort to recruit and indoctrinate prospective members into al Qaeda. That videotape identified the United States as a source of Muslim suffering world-wide and demanded, as a religious duty, other Muslims to migrate to Afghanistan and engage in jihad against the United States and others. It was also described as one of the most, if not the most, important propaganda products produced by al Qaeda to recruit, incite and motivate potential terrorists including suicide bombers.
Evidence that al Qaeda was responsible for the 9/11 attacks on the United States was also overwhelming and uncontested by appellant. The record clearly reflects that 19 men recruited by al Qaeda hijacked 4 commercial airliners and crashed those air-craft into the Pentagon in Washington D.C., the World Trade Center in New York, and into a field in Pennsylvania. Those attacks resulted in the deaths of thousands of people. Appellant's conduct is directly linked to those attacks in that he facilitated the personal pledges of loyalty to bin Laden of two 9/11 hijackers/pilots, Muhammed Atta and Ziad al Jarrah, and prepared their propaganda declarations styled as "martyr wills." Also, he maintained and operated the media equipment used to inform bin Laden of completion of those attacks, and, at bin Laden's personal request, he researched the economic effect of those attacks on the United States and provided that research to bin Laden.
Appellant was also convicted of intentionally providing material support or resources to al Qaeda, an international terrorist organization engaged in hostilities against the United States, knowing that al Qaeda had engaged in or engages in terrorism, including the August 1998 attacks on U.S. embassies in Kenya and Tanzania. These attacks also resulted in hundreds of deaths, thousands of injuries, and extensive property damage. The members concluded by legal and competent evidence beyond a reasonable doubt that appellant, with the requisite knowledge and intent, provided himself as a member to al Qaeda, traveled to Afghanistan to join al Qaeda, met with al Qaeda leadership, underwent military-type training at an al Qaeda sponsored camp, and met with and pledged personal loyalty to bin Laden. The members also found, beyond a reasonable doubt, that appellant provided services in direct support of bin Laden and al Qaeda including: preparing various propaganda products intended for al Qaeda recruiting;
The record reflects that appellant was in his 30s, married with a family, intelligent, well-educated, and that he traveled to Afghanistan to join al Qaeda with knowledge that al Qaeda had engaged in terrorism and was engaged in hostilities with the United States. The record also reflects that, armed with that knowledge and following military-like training provided by al Qaeda, appellant fulfilled his desire to join al Qaeda after personally meeting with Saif-al Adel and bin Laden and discussing their beliefs and goals. He pledged loyalty to bin Laden and remained devoted to bin Laden and al Qaeda throughout the charged timeframe and for more than six years following his capture and detention up to the day he was sentenced. Appellant's words and actions at trial, particularly his unsworn statement to the members, reveal his unwavering commitment to violence, including the intentional killing of civilians and attacks on protected persons and places. Tr. 963-80 (appellant's unsworn statement); Appellate Ex. 19 (appellant's Declaration of Renewal of the Allegiance to Usama Bin Laden).
The military commission judge properly advised the members that in determining an appropriate sentence they should consider that society recognizes five principle reasons for the sentence of those who violate the law: (1) rehabilitation of the wrongdoer, (2) punishment of the wrongdoer, (3) protection of society from the wrongdoer, (4) preservation of societal order, and (5) deterrence of the wrongdoer and those who know of his crimes and his sentence from committing the same or similar offenses. Tr. 949-50. The military commission judge properly instructed the members on the presentencing procedures including the evidence and appellant's unsworn statement. Tr. 949-51, 961-62 (sentencing instructions); 2007 M.M.C., Part II, R.M.C. 1001.
We are unmoved by appellant's argument that he was a "media man," who was sentenced to confinement for "life without parole for producing a video, writing speeches and providing tech-support," and that his being a "shock-jock" does not make him deserving of life without parole. Sentence Appropriateness Brief for Appellant 3-4. We also decline appellant's invitation to assess the appropriateness of the sentence from his perspective, a perspective which deliberately displaces the incitement to violence intended by the propaganda he produced, in deference to focus on the technical skills used in producing that propaganda. This argument grossly understates the significance of appellant's contributions to al Qaeda, and appellant's own opinion thereof. Both perhaps, were best summed up in appellant's own words "I asked bin Laden for a martyrdom operation, suicide operation, but he refused. The reason why he refused was that [] recruiting people through media gets you more people than suicidal attacks (sic)," Tr. 978-79, and that "I was [to be the 20th hijacker], but bin laden refused." Tr. 195. Appellant's contributions to al Qaeda were of strategic significance to recruiting, indoctrination, retention, and inciting others to support or join al Qaeda. He was more valuable in media or strategic communications than in suicide operations. In the case of two 9/11 hijackers/pilots, he directly facilitated their quest to kill themselves
After carefully considering the entire record of trial, the nature and seriousness of these offenses, and the matters presented by appellant, we find the sentence to be appropriate for this offender and his offenses.
Appellant also asserts that the sentence is inappropriately severe in comparison to closely-related cases involving al Qaeda members, who were sentenced to brief terms of years for personally perpetrating acts of violence. Appellant notes that, of the three individuals sentenced by military commission at the time of filing, he is the only one to receive a life sentence, a sentence that he contends is tantamount to confinement for life without the possibility of parole.
Appellant argues that there were two "closely related cases involving al Qaeda members, who were sentenced to brief terms of years for personally perpetrating acts of violence." Sentence Appropriateness Brief for Appellant 3. In the first case, United States v. Hamdan, Hamdan was sentenced to 66 months confinement and served less than five months post-trial punitive confinement, after applying credit for time served. Appellant asserts that Hamdan "was convicted on the basis of being an armed body guard to bin Laden and an al Qaeda weapons courier." Id. at 4. In the second case, United States v. Hicks, appellant asserts that "the members returned a seven-year sentence for which all but nine months was suspended pursuant to a guilty plea agreement" Id. Appellant contends that "Hicks conceded that, despite owing allegiance as an Australian to a coalition allied to the United States, he shopped himself around to various terrorist organizations in Afghanistan and ultimately served as a Taliban fighter, guarding their positions and personally engaging coalition forces in combat." Id.
Appellant has failed to sustain his burden of demonstrating that the Hicks case was "closely related" to his case. Appellant did not establish that he and Hicks were "involved in a common crime," or that they were "in a common or parallel scheme," nor did he prove any other "direct nexus between [himself and Hicks]." Lacy, 50 M.J. at 288. Additionally, Hicks was involved in "fighting with the Taliban," pleaded guilty, and accepted some responsibility for his actions, thereby providing a rational basis for any disparity in sentencing, even assuming the cases were "closely related." Even a cursory comparison of the two cases reveals significant differences in that Hicks pleaded guilty and was found guilty of only one specification of one charge, providing material support to terrorism, and the suspended sentence was predicated on multiple conditions of his cooperation. Military Commission Order Number 1, DoD, Office of the Military Commissions (1 May 2007).
Appellant's argument with respect to Hamdan bears a closer resemblance in that both were members of al Qaeda who pledged loyalty to bin Laden and provided varying forms of support directly to bin Laden and al Qaeda. Neither membership in an organization such as al Qaeda nor conduct in support of al Qaeda, standing alone, shall mandate treatment as "closely related." However, as both appellant and Hamdan were members of al Qaeda who performed substantial duties in direct support of and in close proximity to bin Laden, we will assume without deciding that these cases are "closely related." Based upon the variance in the sentences we will also assume that the sentences are "highly disparate" and determine whether "there is a rational basis for the disparity." Lacy, 50 M.J. at 288.
We conclude that each aforementioned distinction provides "a rational basis for the disparity" in the sentences. Id. Accordingly, we find the sentence correct in law and fact, and on the basis of the entire record, conclude that it should be approved.
The findings and approved sentence are affirmed.
BRAND, GALLAGHER, SIMS, PERLAK, and ORR, JJ., concur.
Judge SIMS, filed a separate opinion, concurring.
Judge SIMS concurring.
Although I concur in the analysis and the result reached by the majority, I write separately to emphasize the long-standing public position of the United States Army regarding the issue of whether the offenses in question in appellant's case, as defined by Congress in the Military Commissions Acts of 2006 and 2009, were properly recognized as existing war crimes. From 1956 onward the United States Army has consistently and explicitly recognized the following acts as being war crimes punishable under international law:
See Field Manual 27-10, The Law of Land Warfare, Ch. 8, § II, Crimes under International Law, ¶ 500 (July 1956) (1956 FM 27-10).
Accordingly, when a person such as appellant chooses to commit any of the aforementioned acts against the United States, he or she should not be surprised to find themselves in the custody of the United States military facing trial by military commission for these long-standing violations of the law of war.
The UN General Assembly has issued numerous Resolutions addressing measures to prevent international terrorism. UN Action to Counter Terrorism Webpage (listing more than 60 UN General Assembly Resolutions to suppress or eliminate terrorism, http://www. un.org/terrorism/resolutions/.shtml. See, e.g., A/RES/65/34 (Jan. 10, 2011) at p. 3, ¶ 1) ("[s]trongly condemning all acts, methods and practices of terrorism in all its forms and manifestations as criminal and unjustifiable, wherever and by whomsoever committed;" and listing eight prior counter-terrorism resolutions from 2002 to 2009).
Sen. Cong. Record S10411 (Sept. 28, 2006). This same person, as a retired vice admiral, is currently the Convening Authority for Military Commissions. Brigadier General James Walker, Staff Judge Advocate to the Commandant of the Marine Corps, stated in his letter to Senator McCain, "jurisdiction of the military commissions should be broad enough to facilitate the prosecution of all unlawful enemy combatants.... Jurisdiction must extend to other terrorist groups, regardless of their level of organization, and the individual `free-lancers' so common on the current battlefield." Sen. Cong. Record S10412 (Sept. 28, 2006).
Hamdan, 801 F.Supp.2d at 1262, 2011 WL 2923945 at *7 (quoting Hamdan, 548 U.S. at 636, 126 S.Ct. 2749) (Breyer, Kennedy, Souter, and Ginsburg, JJ., concurring).
