Petitioner Files Reply in Bahlul v. United States

In the new filing, petitioner makes a point of rejecting the government's claim for plain error review before elaborating on the four arguments put forth in his opening brief. The argument proceeds as follows:

(1) The government forfeited any claim to plain error review. 

In response to the government's request that the court review the remaining issues in the case only for plain error, based on Bahlul's alleged forfeiture of these issues at trial,  petitioner points out that the government waited "many years, multiple rounds of briefing, and two oral arguments" before asserting forfeiture or request plain error review on any issue.

(2) Congress exceeded its authority under the Define and Punish Clause by attempting to turn conspiracy into a war crime. 

This is the crux of the petitioner's brief, and comprises five sections. First, petitioner contends that his argument under the Define and Punish Clause should be reviewed de novo. Second, petitioner rejects government's claim that Congress's power to codify war crimes could derive from its general war powers, arguing instead that it derives from the Define and Punish Clause alone. Third, petitioner attempts to poke holes in the government's heavy reliance on the historic use of military tribunals to try spying and aiding enemy offenses as evidence of Congress's broad power to proscribe law-of-war offenses, arguing instead that spying and aiding the enemy support the traditional scope of Congress's power under the Define and Punish Clause. Fourth, petitioner argues that the government has failed in its attempts to characterize the military trials of the Nazi Saboteurs, the Lincoln Assassins and Ledger Grenfel as precedent, as none supports Bahlul's conviction for the stand-alone war crime of conspiracy. Finally, petitioner dismisses the government's alternative reliance on the Necessary and Proper Clause as a "fudge-factor" that allows Congress to criminalize offenses not recognized under international law as indistinguishable from an argument rejected by the Supreme Court in the 1955 case of Toth v. Quarles, 305 U.S. 11, where the Court held that Congress's broad authority to regulate the Armed Forces does not allow it to circumvent Bill of Rights safeguards through the Necessary and Proper Clause.

 (3) Conspiracy is a domestic-law crime triable only in civilian court. 

First, petitioner argues that even if the government had not waived any reliance on procedural defaults to evade de novo review of the Article III issue, compliance with the jurisdictional limits imposed by Article III is properly reviewed de novo.  Second, Quirin establishes that conspiracy is not triable by military commission.

(4) The government cannot put thoughts, beliefs and ideals on trial.

The petitioner begins by contending that First Amendment issues present a special case on appellate review and must be reviewed de novo. Petitioner then criticizes the "cramped" view of the First Amendment underlying the government's claim that it was under no obligation to respect freedom of speech in the course of Bahlul's prosecution because he had no First Amendment rights in Afghanistan.

 (5) Segregating the criminal justice system is unconstitutional.