Government Files Brief, Reams of Paper, in Bahlul

We noted last week that the D.C. Circuit Court of Appeals denied Ali Hamza Ahmad Suliman al Bahlul's petition for an initial hearing in that court en banc. The government has now filed its respondent brief in the case (and quite a lengthy one, at that), as well as two separate supplements. The government frames the Questions Presented in this case slightly differently than Bahlul had previously:

1. Whether the offenses of providing material support for terrorism, conspiracy to commit terrorist offenses, and solicitation to commit terrorist offenses are, as Congress has found, properly triable by military commission.
2. Whether Bahlul’s convictions violate the First Amendment.
3. Whether the Military Commissions Act of 2006 violated the equal protection component of the Due Process Clause because it limited the jurisdiction of military commissions to offenses committed by alien unlawful enemy combatants.

The government summarizes its argument as follows:

In the Military Commissions Acts of 2006 and 2009, Congress established a historically grounded and narrowly defined military jurisdiction within which the United States could pursue accountability for serious crimes committed during armed conflict. As the Supreme Court made clear in Hamdan v. Rumsfeld, “Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them.” 548 U.S. at 645. Military commissions have been part of our legal architecture since the Revolutionary War, and they are tailored to the realities of armed conflict. They are a lawful and reasonable means of addressing the threat posed by al Qaeda and its associated forces. Indeed, Bahlul’s role in al Qaeda’s declared war against the United States, a war characterized by repeated acts of terrorism including attacks on innocent civilians and civilian targets, places his activities squarely within traditional military commission jurisdiction. Despite the established pedigree of military commissions, Bahlul urges that Congress exceeded its constitutional authority in making subject to trial by such tribunals the offenses of providing material support to terrorists engaged in an armed conflict with the United States, as well as conspiracy and solicitation to commit acts of terrorism during armed conflict. As we demonstrate below, Congress’s constitutional authority to make such offenses, when committed by alien unprivileged enemy belligerents, subject to trial by military commission extends beyond the category of crimes that are today regarded as violations of customary international law. Congress’s constitutional authority to codify military commissions resides both in its war-making powers and in its authority to “define and punish . . . Offences against the Law of Nations” (U.S. Const. art. I, § 8, cl. 10). Moreover, Congress correctly concluded that, in codifying these offenses in the MCA, it was not “establish[ing] new crimes” but simply “codify[ing] offenses that have traditionally been triable by military commissions.” 10 U.S.C. § 950p(a) (2006). Each of the offenses at issue has a direct antecedent in “the system of common law applied by [this nation’s] military tribunals,” Ex parte Quirin, 317 U.S. 1, 30 (1942), and incorporated into military regulations at least since the Civil War. The MCA did nothing more than codify these long-standing offenses and define their elements in a manner that narrowed and clarified their scope. Moreover, Bahlul’s convictions did not violate the First Amendment. Bahlul’s contention that he was convicted merely for making an offensive video mischaracterizes the trial record. In any event, even if Bahlul had been convicted on the basis of the video alone, that would not violate the First Amendment given that: (1) Supreme Court precedent makes it clear that the First Amendment does not protect such acts when committed overseas by enemy aliens engaged in warfare against the United States; (2) the Supreme Court’s recent decision in Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), holds that punishing activities such as Bahlul’s made on behalf of a foreign terrorist organization does not violate the First Amendment; and (3) speech that constitutes the gravamen of a crime such as solicitation or conspiracy is not protected from prosecution by the First Amendment. Bahlul’s final claim – that, because the MCA confines the jurisdiction of military commissions to alien unlawful enemy combatants, it violates the equal protection component of the Due Process Clause of the Fifth Amendment – is likewise meritless. Even assuming arguendo that equal protection rights apply in the context of military commission proceedings against aliens held at Guantanamo Bay, Bahlul’s argument fails on the merits because Congress’s decision to limit the jurisdiction of military commissions to alien unlawful enemy combatants satisfies the rational basis test that applies in this context.

In addition to its 124 page brief, the government submitted a huge quantity of historical material (in four parts). You can read Vol. I part 1 here, Vol. I part 2 here, Vol. II part 1 here, and Vol. II part 2 here. Let me just warn you before you impulsively hit "Print" that it's 426 pages. You can read Bahlul's petitioner brief here. Oral argument has not yet been scheduled.