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The following is my best attempt to summarize some of the arguments made at this morning's oral argument in United States v. Al Bahlul. This argument--audio for which is here--stood in considerable contrast to the Hamdan session (which I plan to summarize separately) in that the judges, and particularly Judge (Captain) Eric Price, were quite lively and kept both advocates on their toes throughout their allocated argument time. Three other judges interjected questions at various points, but the Al Bahlul session was largely a collegial conversation between Judge Price and the litigants. This summary will by necessity gloss over some of the more interesting exchanges, and, both because the session was over an hour long and because we have the audio available, I have not tried to do the sort of blow-by-blow we do at D.C. Circuit arguments. The panel of eight military judges convenes somewhat incongruously beneath the seal of the Court of Appeals for the Federal Circuit. They all look very civilian, sitting as they do in ordinary judicial robes. But this is no patent case. Colonel Barbara Brand is presiding, and she takes a brief moment to introduce Colonel William Orr, who was just sworn in as a military judge this morning. Judge Brand warns the parties not to reveal classified information, and then informs the appellant's counsel that he may proceed. Counsel for Al Bahlul, Michel Paradis, begins his presentation by stating that the government has asked the court to accept an unprecedented position in order save Al Bahlul’s conviction. The biggest defect, he says, is in the first question presented. Joint criminal enterprise (“JCE”) is a theory of liability, he urges, not a standalone crime, and in this case the crimes charged were three inchoate charges that were not “plain and unambiguous” war crimes prior to the Military Commissions Act of 2006 (the statute under which the defendant was charged and convicted). Judge Price wastes no time jumping in to ask his first question: Is “plain and unambiguous” really the operative standard the court should apply? Paradis maintains that it is, citing Hamdan. He says that the language means that courts must find “plain and unambiguous” precedent for the offense charged, and that this is required by the Ex Post Facto Clause. Paradis maintains that the court must look at the law at the time of the alleged conduct, not the law as Congress later tried to define it. The government is arguing, he contends, that however Congress codifies the crimes—even if the conduct occurred seven years prior, and even if it was not so clear that it was criminal at the time it was committed—that is is sufficient to convict and sentence. This prompts Judge Price to ask him whether Congress even has the authority to define law of war offenses, as it did in the Military Commissions Act (“MCA”). Paradis responds that while the defense does think there is a limit on Congress’s power even for legislating prospectively, it isn’t necessary for the court to reach that question. Here, it matters that the conduct concerned was simply not plainly and unambiguously criminal at the time it happened. One of the judges (they did not have placards), then asks Paradis about the importance of the 1957 Army Field Manual, particularly the fact that it lists conspiracy under the heading of “Crimes Under International Law.” Paradis deftly responds that, while that language may appear in the Manual in 1957, neither the Nuremburg Military Tribunal nor the International Military Tribunal in practice criminalized inchoate offenses as standalone offenses. Paradis then says that not only was joint criminal enterprise not part of this case--indeed, no underlying crime was part of this case--the government’s position is that Al Bahlul can be convicted as a war criminal for nothing more than agreeing with, advocating, and aiding a criminal enterprise. Judge Price cuts him off, pointing out that he’s overstated the facts. After all, it’s not fair to say that there was no underlying crime here; the charge sheet does list crimes. He will allow that maybe it would have been cleaner if Congress had enacted a different law, but that doesn’t mean the conviction must be overturned. This leads to a discussion about the difference between the MCA’s jurisdictional requirements and the substantive offenses. Paradis makes clear that the defense doesn’t dispute the tribunal’s personal jurisdiction, but the judges want to know how the jurisdiction and the substantive offenses relate to each other. Paradis allows that, while the “alien unlawful enemy combatant” finding is a factual predicate for jurisdiction, he contends that it actually highlights how unprecedented the government’s charges really are. If all that is required for a conviction is a showing that someone is supporting Al Qaeda, then there’s really no difference between the showing necessary to establish personal jurisdiction and the showing necessary to establish the alleged criminality. The Judge isn’t sure this is right, and says that the relevant concept might actually be more like the one, imported from Nuremberg, of organizational guilt. Paradis sticks to his main point that liability for supporting and agreeing with criminal actors has been decisively rejected. The judges take him off on a short tangent about whether this has been equally the case in both international and non-international armed conflict, and they briefly discuss whether the precedents of the International Criminal Tribunal for the Former Yugoslavia holdings constitute state practice under international law or whether they perhaps simply inform a tribunal as to the status of international law. They then discuss other tribunals’ rulings about joint criminal enterprise liability, and Paradis makes sure to note that the ICTR has rejected it as an independent basis for liability and held that the prosecution must plead it with exceptional particularity. He contends that this should be especially so where the defendant is, as here, charged with a crime seven years after the conduct took place. The judges are curious about whether a U.S. court has ever ruled that Congress exceeded its authority to define and punish crimes, and Paradis has a discussion with them about several cases cited in the appellant’s brief that have related to piracy statutes. Paradis says that the government’s argument necessarily involves creating law, as Congress must have known it was doing when it modified the UCMJ as it did. If this had not been a gap in the law, the Uniform Code would have encompassed conspiracy and there would have been no need to amend it. Thus, he argues, Congress was clearly thinking prospectively. The Supreme Court said in Hamdan that if Congress wanted to enact laws with prospective application, it would be free to do so, and that is what it did. Finally, Paradis gets a chance to turn briefly to Question II of the issues presented in the appeal (concerning the “aiding the enemy” question, which Bobby outlined yesterday), and whether a defendant must have some sort of preexisting duty of allegiance in order for an “aiding the enemy” charge to be sustained. Paradis briefly states his point—that such a duty is definitely required and so Al Bahlul is not validly charged. He argues that the government has given no good authority for its position to the contrary. Then Captain Edward White stands to argue for the government. He begins with two broad points. First, he says that the court may decide the case purely on the basis of domestic law, Military Commissions Act. The MCA, he says, was within Congress’s authority to enact. Second, he argues from Hamdan that Congress is owed deference when using its powers under the “define and punish” clause. Captain White then moves into the JCE issue. It’s important to keep in mind, he says, that the defendant’s conduct was not innocent when he committed it, and would have been understood as criminal in any of the ad hoc international tribunals. He concedes that, at the ICTY, no one could find a standalone conspiracy charge, but he says that whether conspiracy is a standalone charge is the wrong question because, in fact, it is a theory of liability. Further, he contends, the tribunals that have needed to investigate ex post facto issues (which are known in international law terms as the “principle of legality”) have all, starting with Nuremburg, held that one must look at whether the conduct was criminal when the defendant engaged in it to know if the principle of legality is violated. And assessing legality in particular involves asking whether it is foreseeable and accessible to the defendant that his conduct is criminal. At this point, White focuses on conspiratorial conduct, which, he argues, is widely criminalized either explicitly or, at a minimum, or with some law that is conceptually similar to conspiracy. Then Captain White is asked if he agrees with how the appellant frames the government’s reliance on international precedent. Clearly not, he replies, and he and the bench have an exchange about the nature of customary international law. Captain White says that many countries around the world agree with the concept of holding someone responsible for conduct like Al Bahlul's; further, he says, he agrees that this is a body of law that existed internationally but wasn’t articulated, and Congress even said that it was codifying preexisting law. This is what Congress sought to do under its “define and punish” authority and it was a perfectly reasonable exercise of that power. Captain White also gets the question about the 1957 Army Field Manual and how much deference the CMCR should accord it. He responds carefully, first by saying that the Field Manual is entitled to a great deal of deference because it is indicative of state practice, which is important if the court decides the case on the basis of international law or on the basis of U.S. domestic law. Since, by 1957, conspiracy appears in the field manual along with incitement and solicitation, it shows consistent, longstanding American tradition and practice. Furthermore, it indicates that the MCA was merely codifying the common law of war and not creating a new offense. The deference is due based on both the define and punish clause, as well as under the war powers, under Youngstown. But he also tries to distinguish the government's position on deference from what he describes as the defendant's all-or-nothing approach. Then he is asked about what the standard of review would be, but Captain White is unable to cite a specific case suggesting that abuse of discretion is the proper standard, though he urges the court to adopt. He then moves to Question 2, regarding aiding the enemy, and he notes that breach of a duty is not an element, and then proceeds to argue from legislative history that no such requirement can be inferred either; he notes that in 1776, the Continental Congress removed a requirement that individuals subject to “aiding the enemy” charges be members of the Continental Army. The issue here is whether the conduct is wrongful, he says, and that explains the case law. In rebuttal, Paradis stresses that it is the government’s burden to show that the charges are lawful, and he argues that it has provided no clarity. Judge Price pushes back, and he and Paradis get into an exchange about historical analogies going back to the Civil War precedents. Paradis focuses on how different those examples were, in particular because they involved completed crimes, whereas the instant case, he argues, does not. In conclusion, he invokes Hamdan, reading it to say that, while Congress’s powers are “awesome” in targeting and detaining the enemy in war, in undertaking prosecution we are bound by the rule of law that prevails in this jurisdiction. Because, in so many jurisdictions, judges have rejected the concept of inchoate liability, today the CMCR has a duty to apply that law. UPDATE: Typos removed.