Ali Hamza Ahmad al Bahlul v. United States

dissenting:

When confronted with the facts of this case, one is tempted to search for a way to sustain Ali Hamza Ahmad Suliman al Bah-lul’s conviction for the crime of inchoate conspiracy to violate the laws of war. After all, he has admitted that he swore an oath of loyalty to Osama bin Laden, served as bin Laden’s personal secretary, and made al Qaeda recruitment videos. But tempting as it may be, too much is at stake to affirm. The prosecution of al Bahlul in a law-of-war military commission for inchoate conspiracy infringes the judiciary’s power to preside over the trial of all crimes, as set forth in Article III of the Constitution. History and precedent have established a narrow, atextual exception to Article III under which the military may try enemy belligerents for offenses against *805the international “laws of war,” but inchoate conspiracy is not such an offense.

The challenges of the war on terror do not necessitate truncating the judicial power to make room for á new constitutional order. “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty arid security can be reconciled; and in our system they are reconciled within the framework of the law.” Boumediene v. Bush, 553 U.S. 723, 798, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). The exceptional authority the government seeks here falls outside the bounds established by more than a century of constitutional practice. Equally important, the government here has never contended that such authority is even necessary. The prosecution could have charged al Bahlul with recognized war crimes using conspiracy as a theory of liability or it could have charged him before an Article III court with inchoate conspiracy and any number of other crimes triable there but it chose neither course. The circumstances of this case thus present no occasion for the judicial branch to abandon its responsibility to enforce the constitutional plan of separated powers.

Accordingly, for the reasons set forth below, we respectfully dissent from the judgment affirming al Bahlul’s conviction. We begin in Part I with the standard of review, concluding—along with the majority of this court—that al Bahlul’s' separation-of-powers claim is properly reviewed de novo. In Part II we set forth the relevant precedent governing that claim, explaining that it fails to provide support for the government’s prosecution of al Bahlul in a military commission for the crime of inchoate conspiracy. We also respond to the government’s key arguments for upholding al Bahlul’s conspiracy conviction, finding none persuasive. Part III then responds to several of our colleagues’ arguments, and Part IV addresses the potential consequences of the government’s asserted authority. We conclude by emphasizing that, in keeping with our Constitution’s commitment to judicial independence, a majority of this court declines to cede the requested judicial authority to the military.

I.

As a threshold matter, the government argues that during the military commission proceedings, al Bahlul failed to raise each of the challenges he now advances against his conspiracy conviction and that he has,'therefore, forfeited them. Resp’t’s Br. 17-18;. see Millett Op. at 778-80. If al Bahlul did forfeit them, this court would ordinarily review those claims only for plain error—a highly deferential standard. See Al Bahlul v. United States (Al Bahlul I), 767 F.3d 1, 9-10 (D.C. Cir. 2014) (en banc). The challenge we address, however, asks whether trying al Bahlul for the crime of inchoate conspiracy in a law-of-war military commission violates the separation-of-powers principles enshrined in Article III, §' 1 of the Constitution. That question warrants de novo review.

As this court has recognized, a party can waive or forfeit the argument that an opposing party has waived or forfeited a claim. See, e.g., Solomon v. Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014) (“By failing to argue forfeiture or a failure to properly plead the claims before the district court, the Secretary has—in a. word—forfeited his forfeiture argument here.”); United States v. Delgado-Garcia, 374 F.3d 1337, 1340 (D.C. Cir. 2004) (holding that, by failing to advance it, the government had “waived its waiver argument”). Here, the government has undoubtedly forfeited any argument it -might have had that al Bahlul failed to pursue (and thereby forfeited) his “structural” Article III claim. In its first en banc brief to this court, the government forcefully argued that al Bahlul had for*806feited his ex post facto challenge by failing to raise it at trial and that the challenge was consequently subject to plain error review. Brief for the United States 63, Al Bahlul I, 767 F.3d 1, No. 11-1324, 2013 WL 3479237, at *63. But the government never suggested that al Bahlul had similarly forfeited his Article III objection or that this court should review that claim only for plain error. Id. at 70-71, That was so even though al Bahlul had expressly sought de novo review of that claim. See Brief for Petitioner 13, Al Bahlul I, 767 F.3d 1, No. 11-1324, 2013 WL 2325912, at *13. Later, on remand to the original panel, the government again failed to argue that al Bah-lul had forfeited his structural Article III claim. Instead, it expressed its belief that the claim was nonforfeitable and thus subject to de novo review. See Transcript of Oral Argument at 29-30, Al Bahlul v. United States (Al Bahlul II), 792 F.3d 1 (D.C. Cir. 2015) (No. 11-1324) (“Q: Are you also saying that the structural Article 3 claim is forfeitable? A: I. am saying that argument is not forfeitable.”). Now, after four years of litigation before this court, the government changes its tune and, for the very first time, argues that al Bahlul forfeited the structural claim at trial. Because the government long ago “forfeited [its] forfeiture argument” with respect to that claim, Solomon, 763 F.3d at 13, this court properly reviews it de novo. See Ka-vanaugh Op. at 760 n.l.

Even if the government had, from the outset, pressed its view that al Bahlul forfeited his structural Article III claim, we would still review it de novo. The Supreme Court has made clear that ordinary forfeiture and waiver principles do not apply to structural Article III claims like this one. As the Court has explained, Article III, § 1, which vests “[t]he judicial Power of the United States, ... in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” serves two distinct purposes. First, it “safeguard^] litigants’ right to have claims decided before judges who are free from potential domination by other branches of government.” Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 848, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (internal quotation marks omitted). Second, it “protect[s] the role of the independent judiciary within the constitutional scheme of tripartite government.” Id. (internal quotation- marks omitted). As with other constitutional rights, litigants can waive or forfeit their personal right to an Article III adjudication. See id. at 848-49, 106 S.Ct. 3245; Wellness International Network, Ltd. v. Sharif, — U.S. -, 135 S.Ct. 1932, 1949, 191 L.Ed.2d 911 (2015) (remanding the case for the lower court to determine whether the litigant forfeited his personal right to an Article III adjudication). But because the provision also protects “institutional interests that the parties cannot be expected to protect,” the Supreme Court has held that when courts are presented with structural Article III, § 1 claims, “notions of consent and waiver cannot be dispositive.” Schor, 478 U.S. at 851, 106 S.Ct. 3245. Instead, where structural principles are implicated, courts may ignore a party’s waiver or forfeiture to consider an Article III, § 1 claim de novo. See, e.g., id. at 850-57, 106 S.Ct. 3245 (examining whether an Article I tribunal’s adjudication of a state law counterclaim impermissibly infringed on the judiciary’s domain despite the petitioning party having waived his right to pursue the claim in an Article III tribunal).

The Court has repeatedly reaffirmed this approach. In Plaut v. Spendthrift Farm, Inc., the Court stated that courts have discretion to excuse waivers where parties purport to waive “doctrines central to the courts’ structural independence” such as res judicata. 514 U.S. 211, 231-32, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). *807Most recently, in Wellness International Network v. Sharif, the Court demonstrated once again that a litigant’s waiver or forfeiture of the “personal right” to an Article III adjudication presents no bar to courts’ consideration of structural Article III claims on the merits. 135 S.Ct. at 1943 (quoting Schor, 478 U.S. at 850, 106 S.Ct. 3245) (emphasis added). Despite recognizing that Sharif may have forfeited his personal right to have a so-called Stem claim adjudicated before an Article III judge, id. at 1941 n.5, 1949, the Court proceeded to consider whether allowing bankruptcy courts to adjudicate Stem claims with the parties’ consent would “impermissibly threaten the institutional integrity of the Judicial Branch,” id. at 1944-46 (internal quotation marks and alteration omitted). Thus, rather than following ordinary rules of appellate procedure under which it would have declined to review a potentially waived or forfeited claim, the Court disregarded the potential forfeiture and considered the structural issue on the merits.

Putting aside whether cases like Schor and Sharif should be read to hold that structural Article III, § 1 claims can never be waived or forfeited, see Al Bahlul II, 792 F.3d at 3-7 (explaining how the Schor line of cases may be read to prohibit waiver or forfeiture of structural Article III claims); id. at 23-24 (Tatel, J., concurring) (same), those cases stand, at the very least, for the proposition that courts should not reflexively apply ordinary rules of waiver and forfeiture to dispose of such claims. Instead, under that line of cases, courts may exercise their discretion to protect the judiciary’s role within our system of government. We believe this is one of those cases in which the court should exercise that discretion.

To be sure, al Bahlul is hardly a sympathetic litigant, and it is tempting to cut him no slack. Not only has he admitted nearly all of the allegations against him, including that he pledged an oath of loyalty to Osa-ma bin Laden and produced al Qaeda recruiting materials, but during his trial he “flatly refused” to put on any defense, conducting a self-styled boycott instead. Al Bahlul I, 767 F.3d at 5-7, 10. The question presented by Schor and its progeny, however, is not whether this court should exercise its discretion for al Bahlul’s sake. The question is whether the court should exercise its discretion to “safeguard[ ] the role of the Judicial Branch in our tripartite system.” Schor, 478 U.S. at 850, 106 S.Ct. 3245. In our view,, the answer here is plainly yes.

As Justice Kennedy observed in Hamdan v. Rumsfeld, “[t]rial by military commission ■ raises separation-of-powers concerns of the highest order.” 548 U.S. 557, 638, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (Kennedy, J., concurring). Here, al Bahlul presents substantial questions as to whether the political branches have invaded the judiciary’s domain. Specifically, he argues that Congress and the executive branch have ventured beyond the scope of the Article III exception for law-of-war military commissions sanctioned in Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942), a case four Justices recently described as “the high-water mark of military power to try enemy combatants for war crimes.” Hamdan, 548 U.S. at 597, 126 S.Ct. 2749 (plurality opinion). Determining whether such an expansion of military power is constitutional is especially critical as our nation enters a new era in which many of the traditional constraints on the political branches’ authority to prosecute individuals in military- commissions—including wars’ temporal limits and the presence of clearly defined enemies—are dissipating. See, e.g., Legal Issues Regarding Military Commissions and the Trial of Detainees for Violations of the Law. of War:. Hearing Before the Senate Committee oh Armed Services, 111th Cong. 11 *808(2009) (statement of David Kris, Assistant Attorney General, National Security Division, Department of Justice) (“In the past, military commissions have been associated with a particular conflict of relatively short duration. In the modern era, ... the conflict could continue for a much longer time.”).

In this new context, it is also essential that courts give Congress and the President clear guidance on the offenses that can be tried by law-of-war military commissions. The purpose of such tribunals has long been to “dispense swift justice” in the midst of battle. Hamdan, 548 U.S. at 607, 126 S.Ct. 2749 (plurality opinion). But in recent years, the uncertainty surrounding the legal limits on military commissions has made this form of justice anything but swift. Indeed, Congress first codified conspiracy as an offense triable by military commission a decade ago, and al Bahlul was convicted of inchoate conspiracy over seven years ago. Nevertheless, the legitimacy of that charge remains in doubt. Because clear limits can assist Congress and the Executive as they continue to combat al Qaeda and its associated forces and as they consider the United States’ role in future conflicts, it would be unwise to put off final resolution of the commissions’ authority to preside over such charges for still more years to come. Cf. id. at 589, 126 S.Ct. 2749 (majority opinion) (declining the government’s request to abstain from reaching the merits of an unlawful enemy combatant’s challenge to a military commission’s authority because, among other things, he and the government both had “a compelling interest in knowing in advance whether [he] may be tried by a military commission”).

Asked at oral argument why the court should not exercise its discretion to review this question de novo, the government principally argued that constitutional avoidance principles counseled against it. See Oral Arg. Tr. 58-60 (Dec. 1, 2015). But on that logic, courts would never exercise their discretion to consider structural Article III claims because such claims always implicate constitutional questions. That outcome would stand in direct conflict with the Supreme Court’s instruction that a party’s waiver or forfeiture of a structural Article III claim not be dispositive as to whether a court reaches the claim on the merits.

Although acknowledging that “Schor affords this court some discretion to review a forfeited Article III claim de novo,” Millett Op. at 782, Judge Millett would decline to exercise that discretion here, id. at 782-88. In our view, her reasons for doing so insufficiently account for the central teaching of Schor and its progeny and overstate the consequences of exercising our discretion. In particular, although it is true that the Supreme Court has typically invoked Schor to ignore a party’s waiver or forfeiture of a structural Article III claim in civil cases involving adjudicatory systems premised on the parties’ consent—that is, in cases where parties necessarily waived their right to later challenge the adjudication of their claims in non-Article III fora, see id. at 784-85—those cases recognize that Article III, § 1 protects the judiciary’s role in our system of government and that the judiciary cannot be wholly dependent on litigants to assert its institutional interests, see, e.g., Schor, 478 U.S. at 851, 106 S.Ct. 3245. This principle—that there are Article III, § 1 guarantees that are not the parties’ to waive or forfeit—applies at least as strongly in criminal as in civil cases. See Peretz v. United States, 501 U.S. 923, 925, 937-39, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (acknowledging in the context of a criminal case that, under Schxrr, there may be structural principles litigants cannot waive or forfeit); id. at 950, 111 S.Ct. 2661 (Marshall, J., dissenting) (“Although parties may waive their per*809sonal guarantee of an independent Article III adjudicator, parties may not waive Article Ill’s structural guarantee.” (internal citation omitted))..

For similar reasons, Judge Millett’s concern that the court not “reward[ ]” al Bah-lul for his refusal to participate in the military proceedings and that excusing al Bahlul’s forfeiture would undermine the judicial process, Millett Op. at 784, misses the point. As already noted, the court, in exercising its discretion to consider the matter de novo, is doing so for the judicial branch’s own benefit, not for al Bahlul’s. And although enforcing forfeitures generally ensures timely raised objections, deters sandbagging of the other party, and enables timely fact-finding and error correction, see id. at 778-79, those concerns are not compelling here because future litigants will have no way of knowing in advance whether courts will exercise their discretion to consider structural Article III claims. Moreover, any disruption to normal appellate process, see id. at 784-85, is “plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers.” Glidden Co. v. Zdanok, 370 U.S. 530, 536, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); see Kuretski v. Commissioner of Internal Revenue Service, 755 F.3d 929, 936 (D.C. Cir. 2014).

In sum, although the government now claims that al Bahlul forfeited his personal right to a trial in an Article III court, it conceded otherwise at every prior stage of this litigation, thereby “forfeiting the forfeiture.” In any event, strong reasons counsel in favor of exercising our discretion to consider the matter de novo. We therefore ask whether Congress has, in the Military Commissions Act of 2006, im-permissibly encroached on the province of Article III courts by authorizing law-of-war military commissions to try alien unlawful enemy combatants for the crime of conspiracy. On that question, too, we think the answer is clear: it has.

II.

By its text, Article III commits the entire “judicial Power of the United States” to the Supreme Court and “such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const, art. Ill, § 1. It - further provides that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under th[e] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority,” id. § 2, cl. 1; that the judges who sit on Article III courts shall enjoy life tenure and salary protections, id. § 1; and that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury,” id. § 2, cl. 3.

Over time, the Supreme Court has recognized certain limited exceptions, based on principles “rooted in history and the Constitution,” Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 74, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (plurality opinion), to Article Ill’s commitment of the judicial power to constitutional courts and the judge and jury protections that go along with it. Thus, Congress may create non-Article III courts to try cases in the District of Columbia and U.S. territories. Palmore v. United States, 411 U.S. 389, 390-91, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); American Insurance Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 546, 7 L.Ed. 242 (1828); see U.S. Const. art. I, § 8, cl. 17. It may assign to administrative agencies the adjudication of private disputes involving “public rights” stemming from federal regulatory programs. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284, 15 L.Ed. 372 (1855); see U.S. Const, art. I, § 8, cl. 1. It may also assign certain criminal prosecutions of in*810dividuals connected to military service to courts martial. Dynes v. Hoover, 61 U.S. (20 How.) 65, 79, 15 L.Ed. 838 (1857); see U.S. Const. art I, § 8, cl. 14. Finally, at issue here, the Supreme Court has upheld a narrow Article III carve-out for military commissions. See Quinn, 317 U.S. at 39-41, 63 S.Ct. 2.

Historically, the government has established military commissions in three situations in which wartime necessity has required them: First, it has established commissions to operate as general courts in areas under martial law. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 127, 18 L.Ed. 281 (1866) (recognizing that “there are occasions when martial rule can be properly applied”). Second, the government has employed military commissions as general courts in areas that the military temporarily occupies. See Madsen v. Kinsella, 343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988 (1952) (upholding a military commission’s jurisdiction to try a civilian for murder in' occupied Germany). Third, the government has created commissions to punish enemy belligerents who commit offenses against the laws of war during an armed conflict. See Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3; see also Hamdan, 548 U.S. at 595-97, 126 S.Ct. 2749 (plurality opinion); William WinthROp, Military Law and Precedents 836-40 (rev. 2d ed. 1920) [hereinafter Winthrop, Military Law].

The parties agree that al Bahlul was tried before the third type of tribunal— that is, a law-of-war military commission. They'part ways, however, in defining the permissible scope of those commissions’ jurisdiction. Al Bahlul contends that law-of-war military commissions may try only offenses against the international laws of war, and that the sole remaining charge here, the standalone crime of conspiracy, is not such an offense. The government responds to al Bahlul’s constitutional challenge in two ways. First, it contends that Congress may authorize military commissions to try enemy belligerents for violations of the international laws of war as well as any other offenses Congress defines as violations of the “laws of war.” Following from this point, the government asserts that although conspiracy to commit war crimes is not recognized as an international law-of-war offense, Congress in the Military Commissions Act of 2006 lawfully vested military commissions with authority to try individuals like al Bahlul for the crime of conspiracy. In doing so, the government takes the position that international law imposes no constraints on the kinds of offenses Congress can make triable by military commission. Alternatively, the government takes the slightly narrower position that the military can try enemy belligerents for international war crimes, as well as any offenses punishable under a “U.S. common law of war,” by which the government means any offenses traditionally tried.by military commission in the United States. On this point, the government contends that there is sufficient historical precedent for trying conspiracy before law-of-war military commissions, and that the charge against al Bahlul was, therefore, lawful. Based on the Supreme Court-precedent most directly on point— which we, as a lower court, must follow—al Bahlul has the better of these arguments.

A.

The principal decision that governs here is Ex parte Quirin, a case in which seven Nazi saboteurs challenged, the government’s authority to try them in a military, as opposed to civilian, tribunal. Prior to their arrests, the saboteurs had received military training at a sabotage school in Germany, traveled to the United States by submarine, discarded their military uniforms once ashore, and then traveled to various locales in civilian dress with the apparent intent to destroy U.S. war indus*811tries and facilities. 317 U.S. at 21, 63 S.Ct. 2.After they were apprehended and detained, President Roosevelt issued an executive order establishing a military commission to try them for offenses against the laws of war and the Articles of War. Id. at 22, 63 S.Ct. 2. Pursuant to that order, the Army Judge Advocate General prepared four charges against the saboteurs, which read as follows:

1. Violation of the law of war.

2. Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy.

3. Violation of Article 82, defining the offense of spying.

4. Conspiracy to commit the offenses alleged in charges 1,2 and 3.

Id. at 23, 63 S.Ct. 2. .

Focusing on the first charge alone, the Supreme Court upheld the commission’s jurisdiction to try the defendants. It observed that “[a]n important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.” Id. at 28-29, 63 S.Ct. 2. It further found that- Congress had authorized the use of law-of-war military commissions in Article 15 of the Articles of War. Article 15 directed that “the provisions of the[ ] articles conferring jurisdiction upon courts-martial shall not be' construed as depriving military' commissions ... of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions.” Id. at 27-28, 63 S.Ct. 2 (emphasis added). By enacting that provision, the Court explained, Congress had

exercised its authority to define and punish offenses against the law of nations-by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.

Id. at 28, 63 S.Ct. 2.

Stating that the term- “law of war” refers to a “branch of international law,” id. at 29, 63 S.Ct. 2 (emphasis added); see also id. at 27-28, 63 S.Ct. 2, the Court proceeded to consider whether the defendants had been charged with a violation of the international rules governing armed conflicts, id. at 30-31, 35-36, 63 S.Ct. 2. It ultimately concluded that they had been, expressing its belief that passing behind enemy lines in civilian dress with the purpose of committing hostile acts was then an offense under international law. Id. at 31, 63 S.Ct. 2. According to the Court, the “precept” that “those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction' of life or property, [are] ... punishable ... by military commission” was “so recognized in practice both here and abroad” and “so generally ;.. accepted as valid by authorities on international law” that it had to be “regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.” Id. at 35-36, 63 S.Ct. 2.

After concluding that Congress had lawfully authorized the military-commission trial of the offense specified in the first charge, the Court turned to consider whether, despite Congress’s authorization, the jury trial protections in Article III, § 2 and the Fifth and Sixth Amendments nonetheless barred the saboteurs’ prosecution in a military commission. Concluding that they , did not, the Court emphasized *812that military tribunals “are not courts in the sense of the Judiciary Article,” id. at 39, 63 S.Ct. 2, and that the adoptions of Article III, § 2 and the Fifth and Sixth Amendments were in no way intended to deprive the military of its traditional ability to try enemy belligerents for offenses against the laws of war, id. at 39-41, 63 S.Ct. 2. Violations of the laws of war, the Court observed, have, “since the founding of our government,” been cognizable by military tribunals. Id. at 41, 63 S.Ct. 2. For support, the Court pointed to an 1806 statute subjecting alien spies to death, “according to the law and usage of nations, by sentence of a- general court martial.” Id. at 41, 63 S.Ct. 2. That statute, the Court explained, provided a “contemporary construction of both Article III, § 2, and the Amendments as not foreclosing trial by military tribunals, without a jury, of offenses against the law of .war. committed by enemies not in or associated with our Armed Forces.” Id. at 41, 63 S.Ct, 2. Thus, in Quiñn the Supreme Court recognized an exception to Article III and its judge and jury protections for military trials of violations of the “laws of war”—a body of law that, as noted above, the Court described as international. Id. at 29, 63 S.Ct. 2. '

For over seventy years, the Court has treated the phrase “law of war”. as referring to a body of international law, thus reinforcing the idea that Quiñn recognized an Article III exception for international law-of-war offenses. For instance, only four years after Quirin, in In re Yamashita, 327 U.S. 1, 66 S.Ct. 340 (1946), the Court, reaffirming Quirin’s “governing principles,” id. at 9, 66 S.Ct. 340, considered whether a military commission could try a Japanese Commanding General for the “plain violations of the law of war” committed by his troops, based on a command theory of responsibility, id. at 16, 66 S.Ct. 340. Continuing to rely on the Articles of War as having provided congressional authorization for military commissions to try enemy combatants for offenses against the “law of war,” id. at 7, 66 S.Ct. 340, the Court concluded that the commission had jurisdiction over the specified offense, id. at 17-18, 66 S.Ct. 340. Importantly for our purposes here, the Court looked to international sources to determine whether the charges specified offenses against the “laws of war.” Id. at 15-16, 66 S.Ct. 340.

Four years later, the Court again addressed the scope of law-of-war military commissions’ jurisdiction in Johnson v. Eisentrager,