Ali Hamza Ahmad al Bahlul v. United States

Opinion for the court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion concurring in the judgment in part and dissenting filed by Circuit Judge ROGERS.

Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge BROWN.

Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge KAVANAUGH.

On Petition for Rehearing En Banc

Ali Hamza Ahmad Suliman al Bahlul (Bahlul) served as a personal assistant to Osama bin Laden, produced propaganda videos for al Qaeda and assisted with preparations for the attacks of September 11, 2001 that killed thousands of Americans. Three months after 9/11, Bahlul was captured in Pakistan and transferred to the United States Naval Base at Guantanamo Bay, Cuba. Military prosecutors charged him with three crimes: conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes. A military commission convicted him of all three crimes and sentenced him to life imprisonment. The United States Court of Military Commission Review (CMCR) affirmed his conviction and sentence. Bahlul appeals. For the reasons that follow, we reject Bahlul’s ex post facto challenge to his conspiracy conviction and remand that conviction to the original panel of this Court for it to dispose of several remaining issues. In addition, we vacate his material support and solicitation convictions.

I. Background

Bahlul is a native of Yemen. In the late 1990s, he traveled to Afghanistan to join al Qaeda. He completed military-like training while staying at an al Qaeda guesthouse and eventually met and pledged an oath of loyalty (“bayat”) to bin Laden. Bin Laden assigned Bahlul to work in al Qaeda’s media office.

On October 12, 2000, al Qaeda suicide bombers attacked the U.S.S. Cole, killing 17 American servicemen and wounding 39 others. Bin Laden later instructed Bahlul to create a video celebrating the attack for use as a recruiting tool. The video Bahlul produced (and bin Laden edited) includes *6footage of the attack, calls for jihad against the United States and propaganda blaming “Western infidels” and complicit Middle Eastern regimes for Muslim suffering. Bahlul considered it one of the best propaganda videos al Qaeda had produced and it has been translated into several languages and widely distributed.

Bin Laden then appointed Bahlul as his personal assistant and secretary for public relations. Bahlul arranged the loyalty oaths of two of the 9/11 hijackers, Mohamed Atta and Ziad al Jarrah, and prepared their “martyr wills”—propaganda declarations documenting al Qaeda’s role in the attacks. Bahlul claims he sought to participate in the 9/11 attacks himself but bin Laden refused because he considered his media man too important to lose. In the days preceding 9/11, Bahlul assembled al Qaeda’s media equipment and evacuated al Qaeda’s Kandahar headquarters with bin Laden and other senior al Qaeda leaders. They traveled to a remote region of Afghanistan where, on September 11, 2001, they heard reports of the day’s attacks via a radio operated by Bahlul. Bin Laden subsequently asked Bahlul to research the economic effects of the attacks and report his findings.

In the following weeks, Bahlul fled to Pakistan. He was captured there in December 2001 and turned over to U.S. forces. In 2002, he was transferred to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has since been detained as an enemy combatant pursuant to the 2001 Authorization for Use of Military Force (AUMF). See Pub.L. No. 107-40, § 2(a), 115 Stat. 224, 224; Hamdi v. Rumsfeld, 542 U.S. 507, 518, 521, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality). Two months after 9/11, President Bush invoked the AUMF and Article 21 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 821 (hereinafter “section 821”), to establish military commissions to try “member[s] of ... al Qaida” and others who “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor.” See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.Reg. 57,833 (Nov. 13, 2001). In 2003, the President designated Bahlul eligible for trial by military commission and in 2004 military prosecutors charged him with conspiracy to commit war crimes.

Bahlul’s prosecution was stayed pending the outcome of another detainee’s challenge to the lawfulness of his trial by military commission. In Hamdan v. Rumsfeld, the United States Supreme Court held that the military commission procedures then in place contravened certain constraints imposed by the UCMJ and the four Geneva Conventions signed in 1949. 548 U.S. 557, 613-35, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). In response to the Hamdan decision, the Congress enacted the Military Commissions Act of 2006 (2006 MCA), Pub.L. No. 109-336, 120 Stat. 2600, which amended the statutory procedures governing military commissions to cure the flaws identified in Ham-dan. The 2006 MCA specifically enumerated 30 war crimes triable by military commission, see 10 U.S.C. §§ 950t-950v (2006),1 and conferred jurisdiction on military commissions to try “any offense made punishable by this chapter or the law of war when committed by an alien unlawful *7enemy combatant before, on, or after September 11, 2001,” id. § 948d(a).

The Supreme Court has long recognized that unlawful enemy combatants may be prosecuted by military commission for their war crimes. See Hamdan, 548 U.S. at 592-98, 126 S.Ct. 2749; Hamdi 542 U.S. at 518, 124 S.Ct. 2633; In re Yamashita, 327 U.S. 1, 7-8, 11, 66 S.Ct. 340, 90 L.Ed. 499 (1946); Ex parte Quirin, 317 U.S. 1, 28, 31, 63 S.Ct. 2, 87 L.Ed. 3 (1942). There are three traditional bases for military commission jurisdiction: military government, martial law and the law of war. See Hamdan, 548 U.S. at 595-98, 126 S.Ct. 2749 (plurality opinion); see also id. at 683, 126 S.Ct. 2749 (Thomas, J., dissenting). First, military commissions may try ordinary crimes—e.g., manslaughter or robbery—and violations of military orders committed by both soldiers and civilians in territories under U.S. military government. Id. at 595-96, 126 S.Ct. 2749. Second, military commissions may try ordinary crimes and violations of military orders committed by soldiers and civilians in territory under martial law—as much of our country was during the Civil War. See id. at 595, 126 S.Ct. 2749; William Winthrop, Military Law and Precedents 832-34 (rev.2d ed.1920). Third, and “utterly different” from the first two categories, military commissions may try offenses against the law of war. Hamdan, 548 U.S. at 596, 126 S.Ct. 2749 (plurality opinion) (citation omitted). It is undisputed that the commission that tried Bahlul is of the third type: a law-of-war military commission. A military commission convened pursuant to the 2006 MCA must be composed of at least five “members,” who are qualified active duty officers of the armed forces and play a role similar to a petit jury. 10 U.S.C. §§ 948i, 948m. A military judge presides over the trial. Id. § 948j.

In 2008, military prosecutors amended the charges against Bahlul to allege three of the offenses enumerated in the 2006 MCA based on the conduct summarized above-conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes. See id. §§ 950u, 950v(b)(25), 950v(b)(28) (2006). The conspiracy and solicitation charges alleged seven object crimes proscribed by the 2006 MCA: 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. See id. § 950v(b)(l)-(3), (15)—(16), (24)-(25). Bahlul admitted all of the factual allegations against him, with the exception of the allegation that he had armed himself with a suicide belt to protect bin Laden. He nevertheless pleaded not guilty to the charged offenses because he denied the legitimacy of the military commission and sought to absent himself from the proceedings as a boycott. He objected to representation by appointed defense counsel and expressed a desire to proceed pro se, although his attempts to absent himself from the proceedings at times complicated matters and forced defense counsel to stand in for Bahlul and carry out his instructions not to present a defense. Bahlul waived all pretrial motions, asked no questions during voir dire, made no objections to prosecution evidence, presented no defense and declined to make opening and closing arguments.

The military commission convicted Bah-lul of all three offenses. Using a detailed findings worksheet, it found that Bahlul conspired to commit and solicited each of the seven alleged object offenses and that Bahlul committed ten of the eleven alleged overt acts. See Petitioner’s Appendix *8(App.) 132-33.2 The commission sentenced him to life imprisonment and the convening authority, Susan J. Crawford,3 approved the findings and sentence. The CMCR affirmed Bahlul’s conviction and sentence in a 112-page opinion. See United States v. Bahlul, 820 F.Supp.2d 1141 (2011). Bahlul then appealed to this Court.

While Bahlul’s appeal was pending, this Court held that the 2006 MCA “does not authorize retroactive prosecution for conduct committed before enactment of that Act unless the conduct was already prohibited under existing U.S. law as a war crime triable by military commission.” Hamdan v. United States (Hamdan II), 696 F.3d 1238, 1248 (D.C.Cir.2012) (emphasis in original). The Court declared that providing material support for terrorism—the only charge at issue in that appeal—was not a pre-existing war crime triable by military commission; it therefore vacated Hamdan’s conviction on that offense. Id. at 1248-53. The Government subsequently conceded that Hamdan II’s reasoning required vacatur of all three of Bahlul’s convictions. Based on that concession, a panel of this Court vacated the convictions. Order, Bahlul v. United States, No. 11-1324, 2013 WL 297726 (D.C.Cir. Jan. 25, 2013). We subsequently granted the Government’s petition for rehearing en banc.

II. Standard of Review

Bahlul argues that the 2006 MCA must be construed to make triable by military commission only those crimes that were recognized under the international law of war when committed. He further contends that, if the 2006 MCA authorizes retroactive prosecution of new law-of-war offenses by military commission, his convictions violate the Ex Post Facto Clause. Bahlul made neither of these arguments before the military commission.

*9“—‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)). This fundamental principle of appellate review generally bars a party who failed to preserve an argument in a lower tribunal from raising it on appeal absent plain error or exceptional circumstances. See United States v. Atkinson, 297 U.S. 157, 159, 56 S.Ct. 391, 80 L.Ed. 555 (1936); Salazar ex rel. Salazar v. Dist. of Columbia, 602 F.3d 431, 437 (D.C.Cir.2010).

To preserve error for appellate review, an appellant must interpose a “timely” objection, United States v. Simpson, 430 F.3d 1177, 1183 (D.C.Cir. 2005), and “state the specific ground for [the] objection,” United States v. Boyd, 54 F.3d 868, 872 (D.C.Cir.1995). Although he need not “cite the particular case that supports his position,” United States v. Rashad, 396 F.3d 398, 401 (D.C.Cir.2005), he must state the ground for his objection “with sufficient precision to indicate distinctly [his] thesis,” Miller v. Avirom, 384 F.2d 319, 322 (D.C.Cir.1967). Thus, “[a]n objection is not properly raised if it is couched in terms too general to have alerted the trial court to the substance of the petitioner’s point.” United States v. Breedlove, 204 F.3d 267, 270 (D.C.Cir. 2000); see also Noonan v. Caledonia Gold Min. Co., 121 U.S. 393, 400, 7 S.Ct. 911, 30 L.Ed. 1061 (1887) (“The rule is universal, that where an objection is so general as not to indicate the specific grounds upon which it is made, it is unavailing on appeal, unless it be of such a character that it could not have been obviated at the trial.”).

The contemporaneous-objection rule is not mere “obeisance to ritual.” Miller, 384 F.2d at 322. It serves two purposes. First, the rule promotes judicial efficiency by giving the trial tribunal the opportunity to quickly and efficiently resolve errors that would otherwise require burdensome and unnecessary appellate review and remand. See Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Second, the rule discourages the intentional withholding of an objection by a party to be raised on appeal only if he loses at trial. See id.; see also Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (citing Crumpton v. United States, 138 U.S. 361, 364, 11 S.Ct. 355, 34 L.Ed. 958 (1891)).

To mitigate the sometimes harsh results of the forfeiture rule in criminal cases, the Congress authorizes the court of appeals to exercise its discretion to notice and correct a certain type of forfeited error: “plain error.” Fed.R.CRIm.P. 52(b); see United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); see also 10 U.S.C. § 950a(a) (Supp. Ill 2010) (Military Commissions Act of 2009 review provision specifying that only errors that “materially prejudice[ ] the substantial rights of the accused” may be corrected).4 A plain error is “[1] an ‘error’ [2] that is ‘plain’ and [3] that ‘affect[s] substantial *10rights.’ ” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (quoting Fed. R. Ckim P. 52(b)) (final alteration in original). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quotation marks and brackets omitted). Plain-error review, however, is “highly circumscribed.” United States v. Brinson-Scott, 714 F.3d 616, 625 (D.C.Cir.2013); see also Puckett, 556 U.S. at 134, 129 S.Ct. 1423 (“Meeting all four prongs is difficult, as it should be.” (quotation marks omitted)); Young, 470 U.S. at 15, 105 S.Ct. 1038 (“[T]he plain-error exception to the contemporaneous-objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” (quotation marks omitted)). “There is good reason for this; anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpre-served error would be fatal” to the policies furthered by the contemporaneous-objection rule. Puckett, 556 U.S. at 134, 129 S.Ct. 1423 (quotation marks omitted). We therefore must guard against “unwarranted extension of this exacting definition of plain error.” Young, 470 U.S. at 15, 105 S.Ct. 1038.5

Applying these principles here, we conclude that Bahlul forfeited the arguments he now raises. He flatly refused to participate in the military commission proceedings and instructed his trial counsel not to present a substantive defense. Although he objected to the commission’s authority to try him, his objection was couched entirely in political and religious terms. He disclaimed guilt and contended that “what [he] did was not a crime.” Trial Tr. 175. But context makes clear that Bahlul argued that his acts were not criminal because they were inspired by religious fervor. See id. at 175-76. After claiming that the United States had “put on the side[ ] the meaningless American laws” and “legislated new laws” for “the planet Earth,” he explained that he “believe[s] that no one has the right in the land to set laws for the people, the right of legislating laws[] is absolutely to Allah, the All Mighty.” Id. at 23-24. Bahlul did ask a “legal question” about whether the “law here by you stems from the action, before action, or post action,” id. at 104, but the military judge could not ascertain what Bahlul was asking and Bahlul did not elaborate. Bahlul’s objection to the commission’s authority was unquestionably “too general to have alerted the trial court to the substance of [his] point.” United States v. Bolla, 346 F.3d 1148, 1152 (D.C.Cir.2003) (Roberts, J.) (quotation marks omitted); Breedlove, 204 F.3d at 270. Accordingly, we review his convictions for plain error.6

*11Two of our colleagues contend that, by applying only plain-error review, we have provided insufficient clarity in this case. They argue that the Executive Branch’s need for guidance in this area warrants de novo review. Brown Op. 34, 62; Kava-naugh Op. 80. But the Government itself has asked that we apply plain-error review. E.B. Br. of the United States 63. Indeed, at oral argument, it insisted that we do so, notwithstanding the potential lack of “clarity” that such review might entail. Oral Arg. Tr. 45.

III. Statutory Analysis

As noted, Hamdan II held that the 2006 MCA “does not authorize retroactive prosecution for conduct committed before enactment of that Act unless the conduct was already prohibited under existing U.S. law as a war crime triable by military commission.” 696 F.3d at 1248. Because we conclude, for the reasons that follow, that the 2006 MCA is unambiguous in its intent to authorize retroactive prosecution for the crimes enumerated in the statute— regardless of their pre-existing law-of-war status—we now overrule Hamdan II’s statutory holding. See United States v. Burwell, 690 F.3d 500, 504 (D.C.Cir.2012) (en banc); Critical Mass Energy Project v. NRC, 975 F.2d 871, 876 (D.C.Cir.1992) (en banc); Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C.Cir.1988) (en banc).7

*12A. The 2006 MCA is Unambiguous

The 2006 MCA confers jurisdiction on military commissions to try “any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.” 10 U.S.C. § 948d(a) (2006) (emphases added). “Any,” in this context, means “all.” See OxfoRD English Dictionary 539 (2d ed.1989) (“indifference as to the particular one or ones that may be selected”); see also Dep’t of Housing & Urban Dev. v. Rucker, 535 U.S. 125, 131, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002); United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). The “offense[s] made punishable by this chapter” include the charges of which Bahlul was convicted: conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes. 10 U.S.C. §§ 950u, 950v(b)(25), 950v(b)(28) (2006). There could hardly be a clearer statement of the Congress’s intent to confer jurisdiction on military commissions to try the enumerated crimes regardless whether they occurred “before, on, or after September 11, 2001.” And the provisions of the statute enumerating the crimes triable thereunder expressly “do not preclude trial for crimes that occurred before the date of the enactment of this chapter.” 10 U.S.C. § 950p(b) (2006). For good reason: If it were otherwise, section 948d’s conferral of jurisdiction to prosecute the enumerated crimes occurring on or before September 11, 2001 would be inoperative. See Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (“A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” (quotation marks, brackets and ellipsis omitted)). Although we presume that statutes apply only prospectively “absent clear congressional intent” to the contrary, that presumption is overcome by the clear language of the 2006 MCA. Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); see also Johnson v. United States, 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (clear statement of intent overcomes presumption against ret-roactivity); Martin v. Hadix, 527 U.S. 343, 353-54, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (“ ‘unambiguous directive’ or ‘express command’” overcomes presumption against retroactivity); Reynolds v. M’Arthur, 27 U.S. (2 Pet.) 417, 434, 7 L.Ed. 470 (1829) (Marshall, C.J.) (“[L]aws by which human action is to be regulated ... are never to be construed retrospectively unless the language of the act shall render such construction indispensable.”).

Review of the inter-branch dialogue which brought about the 2006 MCA confirms the Congress’s intent to apply all of the statute’s enumerated crimes retroactively. See Boumediene v. Bush, 553 U.S. 723, 738, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (“acknowledging] ... the litigation history that prompted Congress to enact the MCA”). In Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), the Supreme Court considered the President’s order that a military commission try Hamdan, a Guantanamo detainee, for one of the very crimes of which Bahlul was convicted: conspiracy to commit war crimes. Hamdan challenged the President’s authority to convene the military commission by petitioning for habeas corpus relief and the Supreme Court’s resulting decision initiated two games of inter*13pretive ping-pong between the judiciary and the legislature. One involves the issue presented here: whether conspiracy is triable by a law-of-war military commission. In Hamdan, four justices concluded that it was not triable under the extant statute (section 821) and three concluded that it was. Compare Hamdan, 548 U.S. at 603-13, 126 S.Ct. 2749 (plurality opinion of Stevens, J.), with id. at 697-704, 126 S.Ct. 2749 (Thomas, J., dissenting). Four justices also “specifically invited Congress to clarify the scope of the President’s statutory authority to use military commissions to try unlawful alien enemy combatants for war crimes.” Hamdan II, 696 F.3d at 1243; see Hamdan, 548 U.S. at 636, 126 S.Ct. 2749 (Breyer, J., concurring) (“Nothing prevents the President from returning to Congress to seek the authority he believes necessary.”); id. at 637, 126 S.Ct. 2749 (Kennedy, J., concurring) (“If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.”).

The Congress answered the Court’s invitation with the 2006 MCA, which provides the President the very power he sought to exercise in Hamdan—the power to try the 9/11 perpetrators for conspiracy—by including conspiracy as an offense triable by military commission, 10 U.S.C. § 950v(b)(28) (2006), and by conferring jurisdiction on military commissions to try alien unlawful enemy combatants for conspiracy based on conduct that occurred “before, on, or after September 11, 2001,” id. § 948d(a). We must heed this inter-branch dialogue, as Boumediene instructs. 553 U.S. at 738,128 S.Ct. 2229.

If this sounds familiar, it does so because it mirrors a second game of interpretive ping-pong begun in Hamdan. There, the Court also addressed the Government’s contention that section 1005(e)(1) of the Detainee Treatment Act of 2005(DTA), Pub.L. 109-148, 119 Stat. 2739, 2741-42—enacted after the Court’s grant of certiorari in Hamdan—ousted it of jurisdiction to entertain Hamdan’s habe-as petition. Hamdan, 548 U.S. at 572, 126 S.Ct. 2749. After a lengthy statutory analysis, the Court construed the DTA to apply only to petitions filed after the DTA’s enactment and, because Hamdan’s petition was filed before, the statute did not apply. Id. at 576-84, 126 S.Ct. 2749. In construing the DTA as it did, the Court avoided addressing “grave questions about Congress’ authority to impinge upon this Court’s appellate jurisdiction, particularly in habeas cases” and whether the Congress had unconstitutionally suspended the writ of habeas corpus. Id. at 575, 126 S.Ct. 2749. Although the Court relied on “[ojrdinary principles of statutory construction” to reach its result, id., its practical message to the Congress was clear: Stripping the courts of jurisdiction over detainees’ pending habeas petitions must be done unambiguously. Three justices dissented, arguing that the DTA was already unambiguous in its intent to repeal the Court’s jurisdiction. Id. at 656-69,126 S.Ct. 2749 (Scalia, J., dissenting).

The Congress returned serve in the 2006 MCA. Section 7(b) clarified that the bar to habeas jurisdiction applied to “all cases, without exception, pending on or after the date” of the statute’s enactment. 2006 MCA, § 7(b), 120 Stat. at 2636. Two years later, a detainee whose habeas petition was pending at the time of the 2006 MCA’s enactment argued that the statute did not apply to his case because section 7(b) was not a “sufficiently clear statement of congressional intent to strip the federal courts of jurisdiction in pending cases.” Boumediene, 553 U.S. at 737, 128 S.Ct. 2229