Ali Hamza Ahmad al Bahlul v. United States , 792 F.3d 1 ( 2015 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued October 22, 2014                 Decided June 12, 2015
    No. 11-1324
    ALI HAMZA AHMAD SULIMAN AL BAHLUL,
    PETITIONER
    v.
    UNITED STATES OF AMERICA,
    RESPONDENT
    On Petition for Review from the
    United States Court of Military Commission Review
    Michel Paradis, Counsel, Office of the Chief Defense
    Counsel, argued the cause for petitioner. With him on the briefs
    were Mary R. McCormick, Counsel, and Major Todd E. Pierce,
    JA, U.S. Army (Ret.).
    Jeffrey T. Renz was on the brief for amici curiae First
    Amendment Scholars and Historians and The Montana Pardon
    Project in support of petitioner.
    Agnieszka M. Fryszman was on the brief for National
    Institute of Military Justice as amicus curiae in support of
    petitioner.
    McKenzie A. Livingston was on the brief for amici curiae
    Robert D. Steele and other former members of the Intelligence
    2
    Community in support of petitioner.
    Robert Barton and Thomas J. McIntosh were on the brief
    for amicus curiae Professor David W. Glazier in support of
    petitioner.
    Jonathan Hafetz was on the brief for amici curiae Asian
    American Legal Defense and Education Fund, et al., in support
    of petitioner.
    John F. De Pue, Attorney, U.S. Department of Justice,
    argued the cause for respondent. With him on the brief were
    Steven M. Dunne, Chief, Appellate Unit, and Joseph Palmer,
    Attorney. Francis A. Gilligan, Office of Military Commission,
    Lisa O. Moreno and Jeffrey M. Smith, Attorney, U.S.
    Department of Justice, entered appearances.
    James A. Schoettler Jr. was on the brief for amici curiae
    Former Government Officials, et al., in support of respondent.
    Before: HENDERSON, ROGERS, and TATEL, Circuit Judges
    Opinion for the Court by Circuit Judge ROGERS
    Concurring opinion by Circuit Judge TATEL
    Dissenting opinion by Circuit Judge HENDERSON
    ROGERS, Circuit Judge: Pursuant to the Military
    Commissions Act of 2006, 10 U.S.C. §§ 948a et seq. (“2006
    MCA”), a law of war military commission convened at
    Guantanamo Bay, Cuba, found Ali Hamza Ahmad Suliman al
    Bahlul guilty of material support for terrorism, solicitation of
    others to commit war crimes, and inchoate conspiracy to commit
    war crimes. The court, sitting en banc, vacated Bahlul’s
    3
    convictions for material support and solicitation as violative of
    the Ex Post Facto Clause of the U.S. Constitution, see Bahlul v.
    United States, 
    767 F.3d 1
    (D.C. Cir. 2014), and remanded
    Bahlul’s remaining challenges to his conspiracy conviction to
    the original panel, see 
    id. at 31.
    Bahlul contends that his
    inchoate conspiracy conviction must be vacated because: (1)
    Congress exceeded its authority under Article I, § 8 of the
    Constitution by defining crimes triable by military commission
    that are not offenses under the international law of war; (2)
    Congress violated Article III of the Constitution by vesting
    military commissions with jurisdiction to try crimes that are not
    offenses under the international law of war; (3) the government
    put his thoughts, beliefs, and ideas on trial in violaton of the
    First Amendment of the Constitution; and (4) the 2006 MCA
    discriminates against aliens in violation of the Equal Protection
    component of the Due Process Clause of the Fifth Amendment.
    Because Bahlul’s challenges include a structural objection
    under Article III that cannot be forfeited, see Commodity
    Futures Trading Comm’n v. Schor, 
    478 U.S. 833
    , 850–51
    (1986), we review that challenge de novo, and we conclude, for
    the following reasons, that his conviction for inchoate
    conspiracy must be vacated.
    I.
    Bahlul contends that the jurisdiction of law of war military
    commissions is, under the Constitution, limited to offenses
    under the international law of war, and thus that Congress has
    encroached upon the Article III judicial power by authorizing
    Executive Branch tribunals to try the purely domestic crime of
    inchoate conspiracy. As a threshold matter, the government
    maintains that Bahlul has forfeited the Article III challenge,
    having failed to raise the argument at his trial before the military
    commission. Bahlul’s challenge, however, presents a structural
    4
    violation of Article III and is not waivable or forfeitable.
    The Supreme Court held in Schor that an Article III
    structural claim of encroachment on the judicial power was not
    subject to waiver. 
    Id. at 850–51.
    The Court explained that
    “Article III, § 1, not only preserves to litigants their interest in
    an impartial and independent federal adjudication of claims
    within the judicial power of the United States, but also serves as
    an inseparable element of the constitutional system of checks
    and balances.” 
    Id. at 850
    (internal quotation marks omitted).
    Further, the Court explained, it “safeguards the role of the
    Judicial Branch in our tripartite system by barring congressional
    attempts to transfer jurisdiction to non-Article III tribunals for
    the purpose of emasculating constitutional courts, and thereby
    prevent[s] ‘the encroachment or aggrandizement of one branch
    at the expense of the other.’” 
    Id. (quoting Buckley
    v. Valeo, 
    424 U.S. 1
    , 122 (1976)) (alterations and some internal quotation
    marks omitted). The Court held:
    To the extent that this structural principle is
    implicated in a given case, the parties cannot by
    consent cure the constitutional difficulty for the same
    reason that the parties by consent cannot confer on
    federal courts subject-matter jurisdiction beyond the
    limitations imposed by Article III, § 2. When these
    Article III limitations are at issue, notions of consent
    and waiver cannot be dispositive because the
    limitations serve institutional interests that the parties
    cannot be expected to protect.
    
    Id. at 850
    –51 (internal citation omitted). As a result, even
    though Schor had consented to adjudication of his state-law
    claim by an Article I tribunal, see 
    id. at 849–50,
    the Supreme
    Court analyzed his structural challenge de novo, see 
    id. at 851–57.
                                      5
    The Court reaffirmed Schor’s analysis in Plaut v.
    Spendthrift Farm, Inc., 
    514 U.S. 211
    (1995), explaining that it
    was consistent with a rule that although res judicata claims were
    waivable, courts had discretion to excuse the waiver. See 
    id. at 231–32.
    Accordingly, this court, as well as every other circuit
    court to address the issue, has held that under Schor a party
    “could not . . . waive his ‘structural’ claim” under Article III.
    Kuretski v. Comm’r of Internal Revenue Serv., 
    755 F.3d 929
    ,
    937 (D.C. Cir. 2014) (emphasis added); see In re BP RE, L.P.,
    
    735 F.3d 279
    , 287–90 (5th Cir. 2013); Wellness Int’l Network,
    Ltd. v. Sharif, 
    727 F.3d 751
    , 769 (7th Cir. 2013) (rev’d on other
    grounds); Waldman v. Stone, 
    698 F.3d 910
    , 917–18 (6th Cir.
    2012). Most recently, in Wellness International Network, Ltd.
    v. Sharif, No. 13-935 (U.S. May 26, 2015), the Supreme Court
    again confirmed that “Schor forbids [] using consent to excuse
    an actual violation of Article III.” 
    Id., slip op.
    at 14 n.10; see 
    id. at 9,
    11–12; accord 
    id. at 12
    (Roberts, C.J., dissenting).
    Of course, the issue before us is not waiver but forfeiture.
    See generally United States v. Olano, 
    507 U.S. 725
    , 733–34
    (1993). The Supreme Court’s analysis of waiver in Schor
    applies to forfeiture as well. There, the Court rejected waiver of
    Article III § 1 claims “for the same reason” that parties cannot
    waive Article III § 2 jurisdictional 
    limitations, 478 U.S. at 851
    ,
    which are not subject to forfeiture, see United States v. Cotton,
    
    535 U.S. 625
    , 630 (2002). The Court cited United States v.
    Griffin, 
    303 U.S. 226
    , 229 (1938), where it had addressed de
    novo a subject-matter jurisdiction challenge that the defendants
    had failed to raise in the district court. In Schor, the Court
    explained that the analogy stems from the fact that both “Article
    III limitations . . . serve institutional interests that the parties
    cannot be expected to 
    protect.” 478 U.S. at 851
    . As four
    Justices observed in Freytag v. Comm’r of Internal Revenue,
    
    501 U.S. 868
    (1991), “[i]t is clear from our opinion in Schor that
    we had the analogy to Article III subject-matter jurisdiction in
    6
    mind.” 
    Id. at 897
    (Scalia, J., joined by O’Connor, Kennedy, and
    Souter, JJ., concurring in part and concurring in the judgment).
    Likewise in Stern v. Marshall, 
    131 S. Ct. 2594
    (2011), the Court
    analyzed de novo a structural Article III challenge to a
    bankruptcy court’s jurisdiction even though that challenge had
    not been raised in the bankruptcy court. 
    Id. at 2601–02,
    2608–20. Again in Sharif, the Court reviewed the structural
    Article III issue de novo, even though the claim had not been
    raised in the bankruptcy court or the district court. See Sharif,
    No. 13-935, slip op. at 6, 12–15. We therefore hold that under
    Schor’s analysis, Bahlul’s structural challenge under Article III
    is not subject to forfeiture.
    Such searching, de novo review is appropriate because
    Bahlul’s Article III challenge implicates the power of the
    political branches to sideline the federal courts. “Trial by
    military commission raises separation-of-powers concerns of the
    highest order.” Hamdan v. Rumsfeld, 
    548 U.S. 557
    , 638 (2006)
    (Kennedy, J., concurring in part). “Every extension of military
    jurisdiction is an encroachment on the jurisdiction of the civil
    courts . . . .” Reid v. Covert, 
    354 U.S. 1
    , 21 (1957) (plurality
    op.). The government has conceded, in light of Schor, that to the
    extent Bahlul raises a structural challenge, it is subject to de novo
    review. See Appellee’s Br. 50; Oral Arg. Tr. 29, 30. It
    mistakenly suggests, however, that Bahlul’s Article III challenge
    asserts only his personal right to a jury trial, which is subject to
    forfeiture and thus plain error review. See Appellee’s Br. 49–50.
    This ignores Part II of Bahlul’s brief where he discusses the
    “judicial power” and relies on Article III structural precedent of
    the Supreme Court in maintaining that “[t]his [c]ourt must be
    sure that the political branches are not seeking to ‘chip away at
    the authority of the Judicial Branch . . . . ‘Slight encroachments
    create new boundaries from which legions of power can seek
    new territory to capture.’’” Appellant’s Br. 27 (quoting 
    Stern, 131 S. Ct. at 2620
    (quoting 
    Reid, 354 U.S. at 39
    (plurality op.)));
    7
    see 
    id. at 27–37;
    Reply Br. 20.
    Our dissenting colleague misreads Schor in maintaining that
    its holding, quoted above, does not speak to waivability or
    forfeitability at all. Dis. Op. 11–18. To the contrary, the
    Supreme Court, at that point in its opinion, was addressing the
    distinction between the waivability of the right component and
    the structural component of Article III § 1, and concluded that
    only the former was waivable. See 
    Schor, 478 U.S. at 848
    –51.
    The Court reiterated that distinction in Sharif, No. 13-935, slip
    op. at 9, 11–12, and emphasized that Schor “forbids” waiver of
    the latter, 
    id. at 14
    n.10. The dissent suggests that Schor’s non-
    waiver holding applies only to substantive rights, not arguments.
    See Dis. Op. 17–19. But the analysis in Schor applied to both
    “consent and 
    waiver,” 478 U.S. at 851
    (emphasis added), and
    later Supreme Court precedent confirms that Schor’s non-waiver
    holding applies to “defense[s],” “doctrine[s],” “challenge[s],”
    and “claim[s],” not just rights, 
    Plaut, 514 U.S. at 231
    –32.
    Indeed, the discussion in Plaut about excusing waiver in the res
    judicata context would make little sense if waiver meant there
    was no violation in the first place. See 
    id. at 231.
    Under Schor
    and Sharif, parties can waive neither a separation-of-powers
    violation nor a separation-of-powers challenge. Our colleague
    also confuses Sharif’s analysis by conflating the individual right
    and the structural interest protected by Article III § 1. See Dis.
    Op. 14–17. Each acknowledgment of waivability in the Court’s
    opinion refers to the individual right. See Sharif, No. 13-935,
    slip op. at 2, 9, 11, 12–13, 17, 19 & n.13. By contrast, each time
    the Court discussed the distinction, it made clear that the
    structural interest, unlike the individual right, is not subject to
    waiver. 
    Id. at 9,
    11–12, 14 n.10. The Court explained that it
    could “not rely on Sharif’s consent to ‘cure’” an “actual”
    separation-of-powers violation, but simply treated his consent as
    relevant to the merits question of whether “such violation has
    occurred” in the first place. 
    Id. at 14
    n.10 (alteration omitted).
    8
    Our dissenting colleague also misinterprets Sharif to
    suggest that structural Article III claims can be forfeited. See
    Dis. Op. 15–16. Having decided the structural question de novo,
    the Court remanded two questions: Whether Sharif had in fact
    consented to adjudication by the bankruptcy court, and if so,
    whether he had forfeited his right to adjudication by an Article
    III judge by failing to raise an Article III objection in the district
    court. Sharif, No. 13-935, slip op. at 6, 20. The reference to
    forfeiture is unremarkable. If the Seventh Circuit on remand
    finds that Sharif consented, then all that is left for the Seventh
    Circuit to decide is Sharif’s personal right claim, and it has
    always been clear that individual rights — even individual
    Article III rights — are subject to forfeiture. The Court resolved
    the structural issue de novo without regard to any possible
    forfeiture. Even the Justice who was certain that Sharif had
    forfeited his constitutional claim thought it proper to resolve the
    structural Article III issue de novo. See 
    id. at 1–2
    (Alito, J.,
    concurring in part and concurring in the judgment). Indeed, the
    Court tied its remand instruction to the contentions in the
    petitioners’ brief, see 
    id. at 20,
    which acknowledged there are
    some Article III claims that “raise ‘structural’ concerns that
    litigants may not waive or forfeit.” Br. for Pet’rs Wellness Int’l,
    et al. 52.
    Our analysis would not change even if, as the dissent
    maintains, the Court in Schor had instructed that courts should
    excuse waivers of Article III structural claims, instead of holding
    that such claims were unwaivable. See Dis. Op. 12–13, 19. The
    Article III challenge in Bahlul’s case goes to the heart of the
    judiciary’s status as a coordinate branch of government. Our
    colleague’s focus on the fact that Bahlul is “concededly — and
    unapologetically — guilty of the charged offenses,” 
    id. at 25,
    is
    a red herring. To excuse forfeiture would not be for the purpose
    of protecting an individual defendant, but to “safeguard[] the role
    of the Judicial Branch in our tripartite system.” Schor, 
    478 U.S. 9
    at 850. The court would vindicate “the federal judiciary’s strong
    interest[s],” 
    Kuretski, 755 F.3d at 937
    (emphasis added), not
    merely Bahlul’s. Any disruption to normal appellate process, see
    Dis. Op. 20–22, 22 n.8, is “plainly insufficient to overcome the
    strong interest of the federal judiciary in maintaining the
    constitutional plan of separation of powers” under Article III.
    Glidden Co. v. Zdanok, 
    370 U.S. 530
    , 536 (1962). To the extent
    the dissent insists that this court lacks the power to excuse
    forfeiture, see Dis. Op. 19–20; contra Nguyen v. United States,
    
    539 U.S. 69
    , 80 (2003), it relies on precedent applying Federal
    Rule of Criminal Procedure 52(b), which “governs on appeal
    from criminal proceedings . . . in district court,” 
    Olano, 507 U.S. at 731
    ; see Fed. R. Crim. P. 1 Advisory Comm. Note (“[T]hese
    rules are intended to govern proceedings in criminal cases triable
    in the United States District Court.”), whereas Bahlul is
    appealing the decision of the Court of Military Commission
    Review, and the statute governing such appeals, see 10 U.S.C. §
    950g, contains none of the limitations the dissent labors to
    establish. The United States Court of Appeals for the Armed
    Forces has rejected the same argument in the court-martial
    context, affirming the decision of a lower tribunal to excuse
    forfeiture and conducting its own review de novo. See United
    States v. Quiroz, 
    55 M.J. 334
    , 338 (C.A.A.F. 2001); 10 U.S.C. §
    950f(d).
    We turn to the merits of Bahlul’s structural Article III
    challenge to his conspiracy conviction.
    II.
    “Article III, § 1, of the Constitution mandates that ‘[t]he
    judicial Power of the United States, shall be vested in one
    supreme Court, and in such inferior Courts as the Congress may
    from time to time ordain and establish.’” 
    Stern, 131 S. Ct. at 2608
    . Section 2, clause 1, provides that “[t]he judicial Power
    10
    shall extend” to, among others, “all Cases, in Law and Equity,
    arising under this Constitution, the Laws of the United States,
    and Treaties made, or which shall be made, under their
    Authority” and “to Controversies to which the United States
    shall be a Party.” These cases and controversies include criminal
    prosecutions. See United States ex rel. Toth v. Quarles, 
    350 U.S. 11
    , 15 (1955); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121
    (1866). Article III § 2 requires that “[t]he Trial of all Crimes,
    except in Cases of Impeachment, shall be by Jury.” U.S. CONST.
    art. III, § 2, cl. 3. The Supreme Court, based on the text of
    Article III and its own precedent, has continued to reaffirm that
    Article III is an inseparable element of the
    constitutional system of checks and balances that both
    defines the power and protects the independence of
    the Judicial Branch. Under the basic concept of
    separation of powers that flows from the scheme of a
    tripartite government adopted in the Constitution, the
    “judicial Power of the United States” can no more be
    shared with another branch than the Chief Executive,
    for example, can share with the Judiciary the veto
    power, or the Congress share with the Judiciary the
    power to override a Presidential veto.
    
    Stern, 131 S. Ct. at 2608
    (alterations and some internal quotation
    marks omitted) (quoting U.S. CONST. art. III, § 1).
    If a suit falls within the judicial power, then “the
    responsibility for deciding that suit rests with Article III judges
    in Article III courts.” 
    Id. at 2609.
    There are limited exceptions:
    Congress may create non-Article III courts to try cases in the
    District of Columbia and U.S. territories not within a state. See
    Palmore v. United States, 
    411 U.S. 389
    , 390–91 (1973);
    American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511,
    546 (1828). It may assign certain criminal prosecutions to courts
    11
    martial, see Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857),
    and military commissions, see Ex parte Quirin, 
    317 U.S. 1
    , 46
    (1942). And it may assign to administrative agencies the
    adjudication of disputes involving “public rights” stemming from
    federal regulatory programs. See 
    Stern, 131 S. Ct. at 2610
    ;
    Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S.
    (18 How.) 272, 284 (1855). There are three types of military
    commissions. See, e.g., 
    Hamdan, 548 U.S. at 595
    –98 (plurality
    op.), 683 (Thomas, J., dissenting). Bahlul was tried by a law of
    war military commission, 
    Bahlul, 767 F.3d at 7
    , so the question
    is whether conspiracy falls within the Article III exception for
    that type of commission.
    A.
    The Supreme Court addressed the contours of the exception
    to Article III for law of war military commissions in the seminal
    case of Ex parte Quirin, 
    317 U.S. 1
    (1942). There, Nazi soldiers
    found out of uniform in the United States during World War II
    were convicted of sabotage and other offenses by a law of war
    military commission. They challenged their convictions on the
    ground that Article III guaranteed them a right to trial by jury in
    civil court. The Supreme Court held that the law of war military
    commission had jurisdiction to try “offense[s] against the law of
    war,” of which sabotage was one. 
    Id. at 46.
    The Court explained
    that Article III § 2 was intended
    to preserve unimpaired trial by jury in all those cases
    in which it had been recognized by the common law
    and in all cases of a like nature as they might arise in
    the future, but not to bring within the sweep of the
    guaranty those cases in which it was then well
    understood that a jury trial could not be demanded as
    of right.
    
    Id. at 39
    (citation omitted). Given this “long-continued and
    12
    consistent interpretation,” the Court stated “that § 2 of Article III
    and the Fifth and Sixth Amendments cannot be taken to have
    extended the right to demand a jury to trials by military
    commission, or to have required that offenses against the law of
    war not triable by jury at common law be tried only in the civil
    courts.” 
    Id. at 40.
    “[S]ince the founding of our government” and
    continued in the Articles of War, Article III has been construed
    “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.
    In Quirin, the Supreme Court described the law of war as a
    “branch of international 
    law,” 317 U.S. at 29
    , and defined “the
    law of war as including that part of the law of nations which
    prescribes, for the conduct of war, the status, rights and duties of
    enemy nations as well as of enemy individuals.” 
    Id. at 27–28.
    The Court stated that Congress had
    exercised its authority to define and punish offenses
    against the law of nations by sanctioning . . . 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.
    In addition to international precedents, see 
    id. at 30
    n.7, 31 n.8, 35 n.12, the Court also considered domestic
    precedents (during the American Revolution, the War of 1812,
    and the Mexican and Civil Wars, see 
    id. at 31
    nn.9 & 10, 42
    n.14), but only as potential limits on the law of war. The Court
    explained:
    We may assume that there are acts regarded in other
    countries, or by some writers on international law, as
    offenses against the law of war which would not be
    13
    triable by military tribunal here, either because they
    are not recognized by our courts as violations of the
    law of war or because they are of that class of
    offenses constitutionally triable only by a jury.
    
    Id. at 29
    (citing, as an example of the latter, Ex parte Milligan,
    71 U.S. (4 Wall.) 2 (1866)). Thus, “our courts” may recognize
    fewer law of war offenses than other countries’ courts, whether
    because they disagree about the content of international law or
    because of independent constitutional limitations. In the same
    vein, the Supreme Court recognized that Congress had
    “adopt[ed] the system of common law applied by military
    tribunals so far as it should be recognized and deemed applicable
    by the courts.” 
    Id. at 30.
    The Court in Hamdan likewise treated
    “the American common law of war” as a source of constraint,
    not 
    expansion. 548 U.S. at 613
    .
    The Supreme Court has adhered to Quirin’s understanding
    of the meaning of the “law of war” for over seventy years. In
    Application of Yamashita, 
    327 U.S. 1
    (1946), the Court
    reaffirmed Quirin’s “governing principles,” 
    id. at 9,
    and its
    statement that Congress had exercised its power to “define and
    punish Offenses against the Law of Nations, of which the law of
    war is a part,” 
    id. at 7
    (alterations omitted) (citing U.S. CONST.
    art. I, § 8, cl. 10). The Court held that the offenses there,
    stemming from the commanding general’s breach of duty to
    protect civilian populations and prisoners of war against
    atrocities committed by troops under his command, were
    “recognized in international law as violations of the law of war.”
    
    Id. at 14
    . To determine the content of the law of war, the Court
    looked to international sources, 
    id. at 14
    –16, and it concluded
    that those sources alone “plainly imposed on petitioner . . . an
    affirmative duty” that he had violated. 
    Id. at 16.
    Having
    established that the charged offenses were violations of the
    international law of war, the Court mentioned two domestic field
    14
    orders, but only to confirm domestic recognition of the duty
    imposed by the Hague and Geneva Conventions. See 
    id. at 16
    &
    n.3. Again, in Johnson v. Eisentrager, 
    339 U.S. 763
    (1950), the
    Supreme Court looked only to international law sources to
    determine whether the charged offense, “[b]reach of the terms of
    an act of surrender,” was a “war crime.” 
    Id. at 787–88
    & n.13.
    More recently, in Hamdan, the Supreme Court reaffirmed
    Quirin’s principle that the “law of war” means “the body of
    international law governing armed 
    conflict.” 548 U.S. at 641
    (Kennedy, J., concurring in part); 
    id. at 603
    (plurality op.)
    (quoting 
    Quirin, 317 U.S. at 30
    , 35–36).
    The Supreme Court’s reason in Quirin for recognizing an
    exception to Article III — that international law of war offenses
    did not entail a right to trial by jury at common 
    law, 317 U.S. at 40
    –41 — does not apply to conspiracy as a standalone offense.
    The Court in Quirin held that the international law of war
    offense of unlawful belligerency was triable by law of war
    military 
    commissions. 317 U.S. at 36
    , 46. Although the Court
    had no occasion to speak more broadly about whether other
    offenses came within the Article III exception, its reasoning
    precludes an Article III exception for conspiracy, which did
    entail a right to trial by jury at common law. In Callan v.
    Wilson, 
    127 U.S. 540
    (1888), cited in 
    Quirin, 317 U.S. at 39
    , the
    Court pointed to authorities “sufficient to show” that “the nature
    of the crime of conspiracy at common law . . . [was] an offense
    of a grave character, affecting the public at large,” such that a
    person so charged could not be tried without a jury, see 
    Callan, 127 U.S. at 556
    . The reasoning in Quirin also counsels against
    expanding the exception beyond international law of war
    offenses. Stating that “[f]rom the very beginning of its history
    th[e] Court has recognized and applied the law of war as [being]
    part of the law of nations,” 
    Quirin, 317 U.S. at 27
    , the Court
    explained that some offenses may not be triable by military
    commission because “they are not recognized by our courts as
    15
    violations of the law of war,” 
    id. at 29.
    No subsequent Supreme
    Court holding suggests that law of war military commissions
    may exercise jurisdiction over offenses not recognized by the
    “law of war” as defined in Quirin.
    B.
    The parties agree that Bahlul was tried by a law of war
    military commission that had jurisdiction to try charges for
    offenses against the law of war as defined in Quirin. The
    government concedes that conspiracy is not a violation of the
    international law of war. See U.S. Appellee’s Br. to the En Banc
    Court at 34 (July 10, 2013). The question, therefore, is whether
    a law of war military commission may try domestic offenses —
    specifically conspiracy — without intruding on the judicial
    power in Article III.
    The government insists that the Article III exception
    identified in Quirin is not limited to international law of war
    offenses because “the sabotage offense at issue in Quirin —
    which the Court viewed as akin to spying — is not and has never
    been an offense under the international law of war.” Appellee’s
    Br. 54. Yet the Supreme Court in Quirin concluded otherwise.
    It looked to “authorities on International Law” who “regarded as
    war criminals” saboteurs who passed behind enemy lines without
    
    uniform. 317 U.S. at 35
    & n.12. It relied on international
    sources to establish that the offense was recognized “[b]y
    universal agreement and practice.” 
    Id. at 30
    & n.7, 31 n.8, 35
    n.12. And it quoted language from early statutes and military
    tribunal proceedings where spying was identified as punishable
    by military tribunal under the “law and usage of nations.” 
    Id. at 31
    n.9, 41. The government points to scholarly criticism of the
    Court’s conclusion, see Appellee’s Br. 32, but this court is bound
    by the Supreme Court’s analysis in Quirin, which was premised
    on sabotage being an international offense. See 
    Quirin, 317 U.S. at 35
    –36.
    16
    Alternatively, the government maintains that even if Quirin
    did not extend the Article III exception to domestic offenses,
    historical practice demonstrates that it has been so extended. See
    Appellee’s Br. 20, 31–39. The Supreme Court, however, when
    relying on historical practice to analyze the separation of powers,
    has required much more evidence of a settled tradition than the
    government has identified. For instance, in Myers v. United
    States, 
    272 U.S. 52
    , 175 (1926), the Court held, upon reviewing
    more than seven decades in which Presidents had continuously
    removed Executive Branch officers without congressional
    involvement, that Congress lacked authority to restrict the
    President’s removal power. In United States v. Curtiss-Wright
    Export Corp., 
    299 U.S. 304
    (1936), the Court rejected, in view
    of an “unbroken legislative practice which has prevailed almost
    from the inception of the national government to the present
    day,” the argument that a joint resolution of Congress
    authorizing the President to determine whether to embargo the
    sale of arms and munitions to belligerents in a foreign war was
    an unlawful delegation of legislative power. 
    Id. at 322.
    Recently, in National Labor Relations Board v. Noel Canning,
    
    134 S. Ct. 2550
    (2014), the Court defined the scope of the
    President’s authority under the Recess Appointments Clause,
    U.S. CONST. art. II, § 2, cl. 3, based on a lengthy and dense
    historical practice. Upon identifying “thousands of intra-session
    recess appointments” and noting that “Presidents since Madison
    have made many recess appointments filling vacancies that
    initially occurred prior to a recess,” 
    id. at 2562,
    2571, the Court
    concluded that the Clause authorized those types of
    appointments. By contrast, where the Court found only a
    handful of instances in which a President had made a recess
    appointment during an inter-session recess lasting less than ten
    days, the Court held that those recesses were “presumptively too
    short to fall within the Clause.” 
    Id. at 2567.
    The history on which the government relies fails to
    17
    establish a settled practice of trying non-international offenses in
    law of war military commissions. The longstanding statutes
    conferring military jurisdiction over charges of spying and aiding
    the enemy do not, as the government maintains, demonstrate that
    domestic offenses come within the Article III exception. The
    Congresses that enacted those statutes viewed those offenses as
    punishable under the international law of war. The 1806 statute
    “imposed the death penalty on alien spies ‘according to the law
    and usage of nations, by sentence of a general court martial.’”
    
    Quirin, 317 U.S. at 41
    (quoting Act of Congress of Apr. 10,
    1806, 2 Stat. 371). A 1776 Resolution adopted by the
    Continental Congress contained a nearly identical provision. 
    Id. at 41
    & n.13 (citing Edmund M. Morgan, Court-Martial
    Jurisdiction over Non-Military Persons Under the Articles of
    War, 
    4 Minn. L
    . Rev. 79, 107–09 (1920) (quoting Resolution of
    Aug. 21, 1776, 1 JOURNALS OF CONGRESS 450)). In 1865, the
    Attorney General of the United States, James Speed, concluded
    in a formal opinion that “to act as spy is an offence against the
    laws of war,” and that “every lawyer knows that a spy was a
    well-known offender under the laws of war.” Military
    Commissions, 11 Op. Att’y Gen. 297, 312, 313 (1865). The oft-
    cited William Winthrop, the “Blackstone of Military Law,”
    
    Hamdan, 548 U.S. at 597
    (plurality op.) (quoting 
    Reid, 354 U.S. at 19
    n.38 (plurality op.)), reached the same conclusion. See W.
    Winthrop, MILITARY LAW AND PRECEDENTS 769–70 (2d ed.
    1920). Even authority relied upon by the government indicates
    that during the early Republic spies were considered “war
    criminals.” See Appellee’s Br. 31–32 (quoting 2 L. Oppenheim,
    INTERNATIONAL LAW 287 (4th ed. 1926)).
    But even if spying and aiding the enemy were not
    international offenses, their historical pedigrees stand in marked
    contrast to that of conspiracy. Both of those offenses have been
    subject to military jurisdiction since the ratification of the
    Constitution. See 
    Quirin, 317 U.S. at 41
    ; Act of Apr. 10, 1806,
    18
    2 Stat. 359, 371. Congress has reenacted the spying and aiding
    the enemy statutes on multiple occasions, see, e.g., Act of June
    4, 1920, Pub. L. No. 66-242, 41 Stat. 759, 804; Act of Aug. 29,
    1916, Pub. L. No. 64-242, 39 Stat. 619, 663; Act of Mar. 3, 1863,
    12 Stat. 731, 737, and scores of law of war military tribunals
    have tried the offenses, see 
    Quirin, 317 U.S. at 42
    n.14. When
    analyzing separation-of-powers challenges, the Supreme Court
    has explained, “the practical construction of the [C]onstitution,
    as given by so many acts of [C]ongress, and embracing almost
    the entire period of our national existence, should not be
    overruled, unless upon a conviction that such legislation was
    clearly incompatible with the supreme law of the land.”
    Marshall Field & Co. v. Clark, 
    143 U.S. 649
    , 691 (1892); see
    Mistretta v. United States, 
    488 U.S. 361
    , 401 (1989); Stuart v.
    Laird, 5 U.S. (1 Cranch) 299, 309 (1803).
    The history of inchoate conspiracy being tried by law of
    war military tribunals is thin by comparison and equivocal at
    best. The government has identified only a handful of
    ambiguous examples, and none in which an inchoate conspiracy
    conviction was affirmed by the Judicial Branch. The examples
    are unpersuasive in themselves and insufficient to establish a
    longstanding historical practice.
    First, although the charges against the Lincoln assassins
    referred to conspiracy, the specifications listed the elements of
    the completed offense. See J. Holt & T. Ewing, CHARGE AND
    SPECIFICATION AGAINST DAVID E. HEROLD, ET AL. 3 (1865)
    (Petr.’s. Supp. App’x 77–78); see also 
    Hamdan, 548 U.S. at 604
    n.35 (plurality op.); 
    id. at 609.
    The Attorney General’s formal
    opinion in 1865 described the charge as “the offence of having
    assassinated the President.” 11 Op. Att’y Gen. at 297; see 
    id. at 31
    6–17. At the time, it was unclear that conspiracy could even
    be charged separately from the object offense, once completed.
    See Iannelli v. United States, 
    420 U.S. 770
    , 781 & n.13 (1975)
    19
    (citing Hampton L. Carson, The Law of Criminal Conspiracies
    and Agreements as Found in the American Cases, in R. Wright,
    THE LAW OF CRIMINAL CONSPIRACIES AND AGREEMENTS 191
    (1887)). When Congress first enacted a conspiracy statute in
    1867, the offense carried only a two-year penalty. See Act of
    Mar. 2, 1867, 14 Stat. 471, 484.
    Because of conspiracy’s uncertain legal status at the time,
    the dissent’s theory that “[t]he circumstances surrounding the
    Lincoln assassination” indicate that “the criminal defendants
    could only have been charged with conspiracy,” Dis. Op. 62–63
    (emphasis in original), is mere speculation, especially in view of
    the contrary contemporary analysis by the Attorney General. See
    11 Op. Att’y Gen. at 297, 316–17. Moreover, Winthrop noted
    that the Lincoln assassins’ tribunal was a mixed martial law and
    law of war military commission. See W. Winthrop, MILITARY
    LAW AND PRECEDENTS, at 839 & n.5; cf. 
    id. at 842.
    The dissent
    appears to disagree with Winthrop (on whom it otherwise relies,
    see Dis. Op. 54, 59–61, 67) regarding the jurisdictional basis for
    the assassins’ tribunal. Compare 
    id. at 63–64,
    with W.
    Winthrop, MILITARY LAW AND PRECEDENTS, at 839 & n.5. The
    dissent further ignores Winthrop’s explanation that conspiracy
    was a “civil crime” or “crime against society” and not a law of
    war offense. W. Winthrop, MILITARY LAW AND PRECEDENTS,
    at 842. Where Winthrop listed the law of war violations that had
    “principally” been charged in U.S. military commissions,
    conspiracy was not among them. See 
    id. at 839–40.
    In response,
    the dissent cites 
    Milligan, 71 U.S. at 127
    , for the proposition that
    military tribunals cannot exercise martial law jurisdiction unless
    the civil courts are closed, see Dis. Op. 64, even though Milligan
    was decided after the Lincoln assassins’ prosecution. The
    unreported district court opinion in Ex parte Mudd, 
    17 F. Cas. 954
    (1868), hardly strengthens the dissent’s position, see Dis.
    Op. 64 n.21; the district court described the offense as
    “assassination” and only used “conspiracy” in the same terms as
    20
    the charging document, while distinguishing Milligan based on
    the state of war in the Capital, not based on the nature of the
    offense. 
    Mudd, 17 F. Cas. at 954
    .
    Second, although the charges against the Nazi saboteurs in
    Quirin included conspiracy to commit the charged offenses, the
    Court upheld the jurisdiction of the law of war military
    commission only as to the charge of sabotage and did not
    mention the conspiracy charge in its analysis. See 
    Quirin, 317 U.S. at 46
    . Similarly, although William Colepaugh was
    convicted of sabotage and spying, in addition to conspiracy to
    commit those offenses, the U.S. Court of Appeals for the Tenth
    Circuit affirmed the jurisdiction of the military tribunal in view
    of the law of war acts of belligerency without addressing the
    conspiracy charge. See Colepaugh v. Looney, 
    235 F.2d 429
    ,
    431–32 (10th Cir. 1956). Moreover, in both Quirin and
    Colepaugh, the charged conspiracies involved completed
    offenses. By contrast, none of the underlying overt acts for
    Bahlul’s conspiracy conviction was a law of war offense itself,
    and the government declined to charge him with vicarious
    liability under Pinkerton v. United States, 
    328 U.S. 640
    (1946),
    or with joint criminal enterprise, see 
    Bahlul, 767 F.3d at 38
    –39
    (Rogers, J., concurring in the judgment in part and dissenting)
    (citing U.S. Appellee’s Br. to the En Banc Court at 47 (Jul. 10,
    2013)).
    Third, the government asserts that “during the Civil War,
    defendants were regularly convicted of conspiracies that were
    charged as unconsummated offenses,” Appellee’s Br. 37, but it
    cites only a single instance. Col. George St. Leger Grenfel was
    convicted by a military tribunal of conspiracy to free prisoners
    of war in Chicago and to destroy that city. See GENERAL
    COURT-MARTIAL ORDERS No. 452 (Aug. 22, 1865). As Bahlul
    points out, however, Grenfel’s commission, like that of the
    Lincoln assassins, was a “hybrid” commission exercising
    21
    jurisdiction based in part on the President’s declaration of martial
    law. See Reply Br. 18 (citing 
    Hamdan, 548 U.S. at 609
    n.37
    (plurality op.); W. Winthrop, MILITARY LAW AND PRECEDENTS,
    at 839 n.5); S. Starr, COLONEL GRENFELL’S WARS: THE LIFE OF
    A SOLDIER OF FORTUNE, 5, 219 (1971) (cited in Appellee’s Br.
    37). In defending the Grenfel commission’s jurisdiction, the
    prosecution relied on the fact that “martial law obtained
    throughout the United States and the Territories during the
    continuance of the [Civil] [W]ar.” Judge Advocate’s Reply,
    Courtroom, Cincinnati, Ohio, Jan. 17, 1865, United States v.
    Walsh, et al., reprinted in H. EXEC. DOC. NO. 50, 39th Cong., 2d
    Sess., at 20. The Grenfel commission, like the Lincoln assassins’
    commission, “is at best an equivocal” case. 
    Hamdan, 548 U.S. at 604
    n.35 (plurality op.).
    The historical examples identified by the government thus
    fall far short of what the Supreme Court has required when using
    historical practice to interpret the constitutional separation of
    powers. Our dissenting colleague adds only the orders of
    General MacArthur and General Wedemeyer from the end of
    World War II and the Korean Conflict. See Dis. Op. 66 &
    nn.22–23. But the en banc court dismissed the persuasive force
    of such military orders for lack of high-level Executive Branch
    consultation. See 
    Bahlul, 767 F.3d at 25
    n.16. And during the
    Korean Conflict there apparently were no trials conducted by
    United Nations Military Commissions. See Jordan J. Paust et al.,
    INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS 724
    (1996).
    Finally, the government asserts that any “enemy
    belligerent” can be tried by a military commission regardless of
    the offense. Appellee’s Br. 56. But the Supreme Court has
    focused on “the question whether it is within the constitutional
    power of the national government to place petitioners upon trial
    before a military commission for the offenses with which they
    22
    are charged.” 
    Quirin, 317 U.S. at 29
    (emphasis added). Thus,
    in Quirin, the Court “assume[d] that there are acts” that could
    not be tried by military commission “because they are of that
    class of offenses constitutionally triable only by a jury.” 
    Id. (emphasis added).
            Likewise, in Yamashita, the Court
    “consider[ed] . . . only the lawful power of the commission to try
    the petitioner for the offense 
    charged.” 327 U.S. at 8
    (emphasis
    added). In Hamdan, the Court explained that the status of the
    offender (being a member of a foreign armed force) and the
    nature of the offense were both necessary conditions for the
    exercise of jurisdiction by a law of war military commission.
    See 
    Hamdan, 548 U.S. at 597
    –98 (plurality op.) (citing W.
    Winthrop, MILITARY LAW AND PRECEDENTS, at 836–39); accord
    
    id. at 2826
    (Thomas, J., dissenting).
    C.
    This court need not decide the precise relationship between
    Bahlul’s Article I and Article III challenges. In Quirin, the
    Supreme Court’s Article III analysis did not look to Article I at
    all. See 
    Quirin, 317 U.S. at 38
    –46. In some contexts, however,
    Article III exceptions have turned on the extent of congressional
    power. See Palmore v. United States, 
    411 U.S. 389
    , 402–04
    (1973); Kinsella v. United States ex rel. Singleton, 
    361 U.S. 234
    ,
    236–38 (1960). Upon examining the government’s Article I
    contentions, we conclude that they do not call into question the
    conclusion that the Article III exception for law of war military
    commissions does not extend to the trial of domestic crimes in
    general, or inchoate conspiracy in particular.
    1. The government maintains that the war powers in Article
    I vest Congress with broad authority to subject war-related
    offenses to the jurisdiction of military commissions. See
    Appellee’s Br. 27–30. The war powers include the power to
    “define and punish . . . Offences against the Law of Nations,”
    U.S. CONST. art. I, § 8, cl. 10, “declare War,” 
    id. § 8,
    cl. 11,
    23
    “raise and support Armies,” 
    id. § 8,
    cl. 12, “provide and maintain
    a Navy,” 
    id. § 8,
    cl. 13, “make Rules for the Government and
    Regulation of the land and naval Forces,” 
    id. § 8,
    cl. 14, “provide
    for calling forth the Militia,” 
    id. § 8,
    cl. 15, and to “make all
    Laws which shall be necessary and proper for carrying into
    Execution the foregoing Powers,” 
    id. § 8,
    cl. 18. Because the
    war powers contain no textual limitation based on international
    law, the government concludes there is no such restriction on
    military commission jurisdiction. See Appellee’s Br. 29–30. In
    the government’s view, the war powers support military
    jurisdiction over any offense “committed by an enemy
    belligerent during and in relation to an armed conflict with the
    United States [that] . . . has a palpable effect on the nature of that
    conflict.” Oral Arg. Tr. 49.
    The Supreme Court has looked to the Define and Punish
    Clause in determining whether Congress may designate
    particular offenses within the jurisdiction of a law of war
    military commission. The Court in Quirin, Yamashita, and
    Hamdan did look to the war powers in discussing congressional
    authority to establish military commissions. See 
    Hamdan, 548 U.S. at 591
    (plurality op.); 
    Yamashita, 327 U.S. at 12
    ; 
    Quirin, 317 U.S. at 26
    ; see also W. Winthrop, MILITARY LAW AND
    PRECEDENTS, at 831 (stating that Congress’s power “to ‘declare
    war’ and ‘raise armies’” provided the “original sanction” for
    military commissions). But in addressing Congress’s authority
    to confer jurisdiction over particular offenses, the Court has
    consistently looked to the Define and Punish Clause alone. See
    
    Hamdan, 548 U.S. at 601
    –02 (plurality op.); 
    Yamashita, 327 U.S. at 7
    ; 
    id. at 26
    (Murphy, J., dissenting); 
    Quirin, 317 U.S. at 28
    . In Yamashita, the Court emphasized the distinction,
    explaining that “the [military] commission derives its existence”
    from the war 
    powers, 327 U.S. at 12
    (emphasis added), but that
    its jurisdiction over specific offenses comes from Congress’s
    “exercise of the power conferred upon it by Article I, § 8, Cl. 10
    24
    of the Constitution to ‘define and punish * * * Offenses against
    the Law of Nations * * *,’ of which the law of war is a part.” 
    Id. at 7.
    Winthrop endorsed this distinction in stating that Civil
    War-era legislation subjecting “spies and guerillas” to military
    jurisdiction “may be regarded as deriving its authority from” the
    Define and Punish Clause. W. Winthrop, MILITARY LAW AND
    PRECEDENTS, at 831.
    In applying the Define and Punish Clause, the Supreme
    Court long ago cautioned that “[w]hether the offense as defined
    is an offense against the law of nations depends on the thing
    done, not on any declaration to that effect by [C]ongress.”
    United States v. Arjona, 
    120 U.S. 479
    , 488 (1887). As noted, the
    government has conceded that conspiracy is not an international
    war crime. Notwithstanding the atrocities at issue, the
    International Military Tribunal at Nuremberg considered and
    rejected conspiracy to commit war crimes as an international law
    of war offense. See 22 TRIAL OF THE MAJOR WAR CRIMINALS
    B EFORE THE I NTERNATIONAL M ILITARY T RIBUNAL :
    NUREMBERG, 14 NOVEMBER 1945–1 OCTOBER 1946, at 469
    (1948). Conspiracy to commit war crimes is included neither in
    the major treaties on the law of war,1 nor in the jurisdiction of
    1
    See, e.g., Protocol Additional to the Geneva Conventions of 12
    August 1949, and Relating to the Protection of Victims of Non-
    International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609;
    Protocol Additional to the Geneva Conventions of 12 August 1949,
    and Relating to the Protection of Victims of International Armed
    Conflicts, June 8, 1977, 1125 U.N.T.S. 3; Geneva Convention Relative
    to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
    6 U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention Relative to the
    Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75
    U.N.T.S. 135; Geneva Convention for the Amelioration of the
    Condition of Wounded, Sick and Shipwrecked Members of Armed
    Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva
    Convention for the Amelioration of the Condition of the Wounded and
    25
    modern war crimes tribunals.2 Congress cannot, pursuant to the
    Define and Punish Clause, declare an offense to be an
    international war crime when the international law of war
    concededly does not. See United States v. Furlong, 18 U.S. (5
    Wheat.) 184, 198 (1820). The exceptions — conspiracy to
    commit genocide and common plan to wage aggressive war, see
    
    Hamdan, 548 U.S. at 610
    (plurality op.) — are not at issue here,
    for Bahlul was charged with neither. In light of the international
    community’s explicit and repeated rejection of conspiracy as a
    law of war offense, we are puzzled by our dissenting colleague’s
    statement that “[t]he international community does recognize
    that Bahlul violated the principles of the law of nations,” Dis.
    Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75
    U.N.T.S. 31; Convention Respecting the Laws and Customs of War on
    Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631; Convention with
    Respect to the Laws and Customs of War on Land, July 29, 1899, 32
    Stat. 1803, 1 Bevans 247.
    2
    See Statute of the Special Court for Sierra Leone, Jan. 16, 2002,
    2178 U.N.T.S. 138; Rome Statute of the International Criminal Court,
    July 17, 1998, 2187 U.N.T.S. 90; Statute of the International Tribunal
    for Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/955 (1994),
    reprinted in 33 I.L.M. 1598, 1602; Statute of the International
    Tribunal for the Former Yugoslavia, adopted by S.C. Res. 827, U.N.
    Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159, 1192. Some
    modern tribunals recognize war crimes liability through participation
    in a joint criminal enterprise, see Prosecutor v. Milutinovic, Case No.
    IT–99–37–AR72, Decision on Dragoljub Ojdanic’s Motion
    Challenging Jurisdiction—Joint Criminal Enterprise, ¶ 26 (Int'l Crim.
    Trib. for the Former Yugoslavia, Appeals Chamber, May 21, 2003);
    Rwamakuba v. Prosecutor, Case No. ICTR–98–44–AR72.4, Decision
    on Interlocutory Appeal Regarding Application of Joint Criminal
    Enterprise to the Crime of Genocide, ¶ 30 (Oct. 22, 2004), but the
    prosecutor at Bahlul’s military commission withdrew that charge
    against him, see Trial Tr. 110, 881 (cited in 
    Bahlul, 767 F.3d at 39
    ,
    40–41 (Rogers, J., concurring in the judgment in part and dissenting)).
    26
    Op. 31 (internal quotation marks and italics omitted), and by its
    reference to “the international community’s agreement that those
    who conspire to commit war crimes can be punished as war
    criminals,” 
    id. at 53.
    There is no such “agreement.” The dissent
    offers nothing to support this claim.
    Our dissenting colleague also maintains that this court must
    accord Congress “‘extraordinary deference when it acts under its
    Define and Punish Clause powers.’” Dis. Op. 34 (quoting
    
    Bahlul, 767 F.3d at 59
    (Brown, J., concurring in the judgment in
    part and dissenting in part)). This court has no occasion to
    decide the extent of that deference because the government has
    never maintained that Congress defined conspiracy in the 2006
    MCA as a violation of the law of nations. The legislative history
    of the 2006 MCA is not to the contrary. See 
    id. at 46
    n.17. In
    maintaining otherwise, the dissent confuses acting pursuant to
    the Define and Punish Clause with identifying the content of the
    law of nations, see 
    id. at 45–47;
    Congress purported to do the
    former, not the latter. In Bahlul’s case, the “law of nations” is
    not “too vague and deficient to be a rule,” 
    id. at 32
    (quotation
    marks omitted); to the contrary, it quite clearly does not view
    conspiracy to be an independent war crime, as the government
    has conceded.
    To the extent our colleague would interpret the Define and
    Punish Clause to confer open-ended congressional authority to
    create new war crimes, see Dis. Op. 38–43, the Supreme Court
    has rejected such an approach. In Furlong, 18 U.S. (5 Wheat.)
    184, the Court explained with regard to piracy, the other object
    of the Define and Punish Clause: “If by calling murder piracy,
    [Congress] might assert a jurisdiction over that offence
    committed by a foreigner in a foreign vessel, what offence might
    not be brought within their power by the same device?” 
    Id. at 198
    (emphasis in original). The same reasoning applies to
    “Offenses against the Law of Nations,” the other object of the
    27
    Define and Punish Clause. U.S. CONST. art. I, § 8, cl. 10.
    Congress can neither define as piracy a crime that is clearly not
    piracy, nor define as a law of nations offense a crime that is
    avowedly not a law of nations offense. In other contexts as well,
    the Supreme Court has rejected the limitless form of
    congressional power the dissent proposes. Cf. City of Boerne v.
    Flores, 
    521 U.S. 507
    , 529 (1997). Contrary to our dissenting
    colleague, international law itself affords no limit because it does
    not purport to identify which non-international offenses can and
    cannot be treated as domestic war crimes; the dissent points to no
    offenses whose trial by military commission are “inconsistent
    with” or not “permit[ted]” by international law. Dis. Op. 53, 38
    (italics omitted). In urging such a limitation, however, the
    dissent does reveal one shared premise: that the content of
    international law constrains congressional authority under the
    Define and Punish Clause.              According to the dissent,
    congressional action under the Clause must be “consistent with
    international law,” 
    id. at 47,
    such that Congress may only “track
    somewhat ahead of the international community,” 
    id. at 43
    (emphasis added). Thus, despite some rhetorical protestations to
    the contrary, see 
    id. at 1,
    42, 73, the dissent’s disagreement is not
    about whether international law constrains congressional
    authority, only to what extent.
    The dissent’s reliance on Yamashita as support for its
    understanding of the Define and Punish Clause, see Dis. Op.
    35–37, is misplaced. In Yamashita, the Supreme Court did not
    address the nature of Define and Punish Clause authority at all,
    because Congress had not defined any specific offenses. See
    
    Yamashita, 327 U.S. at 7
    . The Court therefore had to undertake
    its own analysis of international law, and it concluded that the
    Hague and Geneva Conventions “plainly imposed on petitioner”
    a duty that he had violated. 
    Id. at 16.
    It is therefore difficult to
    understand how Yamashita affects the type of deference owed to
    Congress one way or the other.
    28
    2. Nor does the Necessary and Proper Clause allow
    Congress to do what its express powers do not. See 
    Toth, 350 U.S. at 21
    –22. The government maintains that even if
    Congress’s authority arose only under the Define and Punish
    Clause, “Congress is not restricted under that Clause only to
    criminal offenses that are violations of international law.”
    Appellee’s Br. 43. “Rather, Congress may, under the Necessary
    and Proper Clause, proscribe conspiracy to commit war crimes,
    such as terrorist attacks against civilians, that are themselves
    violations of the law of nations as a necessary and proper
    implementation of its power and responsibility to prevent and
    punish such violations.” 
    Id. The Supreme
    Court has adopted a
    different view.
    In 
    Toth, 350 U.S. at 22
    , the Supreme Court explained that
    it was “not willing to hold that power to circumvent [jury]
    safeguards should be inferred through the Necessary and Proper
    Clause.” It described the “great difference between trial by jury
    and trial by selected members of the military forces,” 
    id. at 17,
    and explained that “[t]here are dangers lurking in military trials
    which were sought to be avoided by the Bill of Rights and
    Article III of our Constitution,” 
    id. at 22.
    In Singleton, the Court
    rejected expansion of military jurisdiction through the Necessary
    and Proper Clause because “[t]his Court cannot diminish and
    expand that power, either on a case-by-case basis or on a
    balancing of the power there granted Congress against the
    safeguards of Article III and the Fifth and Sixth 
    Amendments.” 361 U.S. at 246
    . The Court explained: “If the exercise of the
    power is valid it is because it is granted in Clause 14 [the Make
    Rules Clause], not because of the Necessary and Proper Clause.”
    
    Id. at 247.
    “We are therefore constrained to say that since this
    Court has said that the Necessary and Proper Clause cannot
    expand Clause 14 so as to include prosecution of civilian
    dependents for capital crimes, it cannot expand Clause 14 to
    include prosecution of them for noncapital offenses.” 
    Id. at 248.
                                    29
    As the plurality in Reid emphasized, “the jurisdiction of military
    tribunals is a very limited and extraordinary jurisdiction derived
    from the cryptic language in Art. I, § 8, and, at most, was
    intended to be only a narrow exception to the normal and
    preferred method of trial in courts of 
    law.” 354 U.S. at 21
    ; see
    
    Hamdan, 548 U.S. at 590
    (plurality op.). Consequently, “the
    Necessary and Proper Clause cannot operate to extend military
    jurisdiction to any group of persons beyond that class described
    in” an enumerated Article I power. 
    Reid, 354 U.S. at 20
    –21
    (plurality op.). “Under the grand design of the Constitution
    civilian courts are the normal repositories of power to try persons
    charged with crimes against the United States.” 
    Id. at 21.
    The government’s response is that Congress may enact
    legislation “necessary to comply with our nation’s international
    responsibilities.” Appellee’s Br. 45. In 
    Arjona, 120 U.S. at 484
    ,
    the Supreme Court upheld a counterfeiting prohibition because
    “[t]he law of nations requires every national government . . . to
    punish those who, within its own jurisdiction, counterfeit the
    money of another nation.” The Court observed that without the
    criminal statute, the United States would “be unable to perform
    a duty which they may owe to another nation, and which the law
    of nations has imposed on them as part of their international
    obligations.” 
    Id. at 487.
    Here, the government points to the
    Geneva Convention Relative to the Protection of Civilian
    Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6
    U.S.T. 3516 (“Geneva IV”), which prohibits “[c]ollective
    penalties and likewise all measures of intimidation or of
    terrorism.” 
    Id. art. 33.
    The Convention requires signatories to
    “undertake to enact any legislation necessary to provide effective
    penal sanctions for persons committing, or ordering to be
    committed, any of the grave breaches of the present
    Convention,” 
    id. art. 146,
    which include the “willful killing . . .
    of a protected person,” 
    id. art. 147,
    defined as “those who . . .
    find themselves, in case of a conflict or occupation, in the hands
    30
    of a Party to the conflict or Occupying Power of which they are
    not nationals,” 
    id. art. 4.
    Each signatory “shall take measures
    necessary for the suppression of all acts contrary to the
    provisions of the present Convention.” 
    Id. art. 146.
    Even if Congress has authority to criminalize non-
    international offenses pursuant to the Define and Punish Clause,
    as supplemented by the Necessary and Proper Clause, the
    government fails to explain why such congressional power to
    prohibit conduct implies the power to establish military
    jurisdiction over that conduct. Military jurisdiction over the
    offenses that the Supreme Court has previously upheld under the
    Define and Punish Clause — such as spying and sabotage —
    have a textual basis in the Constitution: The “Law of Nations,”
    U.S. CONST. art. I, § 8, cl. 10, itself makes those offenses
    “cognizable by [military] tribunals.” 
    Quirin, 317 U.S. at 28
    ; see
    
    id. at 41
    & n.13; Act of Apr. 10, 1806, 2 Stat. 359, 371; 11 Op.
    Att’y Gen. at 316; W. Winthrop, MILITARY LAW AND
    PRECEDENTS, at 769. Court-martial jurisdiction similarly has a
    textual basis in the Constitution, which authorizes Congress to
    “make Rules for the Government and Regulation of the land and
    naval Forces,” U.S. CONST. art. I, § 8, cl. 14, and exempts those
    offenses from trial by jury, see 
    id. amend. V.
    The sabotage
    offense in Quirin was subject to military jurisdiction based on “a
    construction of the Constitution which has been followed since
    the founding of our 
    government.” 317 U.S. at 41
    . Military
    jurisdiction over conspiracy, by contrast, has neither an express
    textual basis nor an established historical tradition.
    The government maintains that under the Necessary and
    Proper Clause, “[i]f commission of the substantive crime that is
    the conspiracy’s object would be within the scope of permissible
    congressional regulation, then so is the conspiracy.” Appellee’s
    Br. 45. But again, Bahlul’s Article III challenge is not that
    Congress lacks authority to prohibit his conduct; rather, he
    31
    challenges Congress’s authority to confer jurisdiction in a
    military tribunal. Absent a textual or historical basis for
    prosecuting conspiracy as a standalone offense in a law of war
    military commission, the government’s position is confounded
    by the Supreme Court’s repeated reluctance to extend military
    jurisdiction based on the Necessary and Proper Clause. See, e.g.,
    
    Singleton, 361 U.S. at 246
    –48; 
    Reid, 354 U.S. at 20
    –21 (plurality
    op.); 
    Toth, 350 U.S. at 21
    –22. The cases on which the
    government relies, such as Callanan v. United States, 
    364 U.S. 587
    , 593–94 (1961), and United States v. Feola, 
    420 U.S. 671
    ,
    694 (1975), involve criminal conspiracy prosecutions in civil
    courts. See Appellee’s Br. 45–46 (also citing United States v.
    Price, 
    265 F.3d 1097
    , 1107 n.2 (10th Cir. 2001); United States
    v. Jannotti, 
    673 F.2d 578
    , 591–94 (3d Cir. 1982)).
    D.
    Before concluding we address some further flaws in our
    dissenting colleague’s opinion.
    First, the dissent relies on inapposite authorities regarding
    the source of congressional authority for law of war military
    commissions. Its citations refer to military commissions
    exercising jurisdiction far beyond the law of war. Thus, in Ex
    parte Milligan, 
    71 U.S. 2
    (1866), the four Justices cited by the
    dissent, see Dis. Op. 55, were discussing courts martial and
    military commissions whose jurisdiction was based on military
    government and martial law. See 
    Milligan, 71 U.S. at 141
    –42
    (Chase, C.J., concurring in the result); see generally 
    Hamdan, 548 U.S. at 595
    –98 (plurality op.), 683 (Thomas, J., dissenting);
    
    Bahlul, 767 F.3d at 7
    . The constitutional authority for those
    commissions, whose jurisdiction may include domestic crimes,
    see 
    Hamdan, 548 U.S. at 595
    –96 (plurality op.); 
    Bahlul, 767 F.3d at 7
    , does not extend to law of war commissions. The
    dissent’s reliance on Madsen v. Kinsella, 
    343 U.S. 341
    (1952);
    see Dis. Op. 55, 58, 61, is likewise misplaced; that case involved
    32
    a military-government commission, not a law of war military
    commission. 
    Madsen, 343 U.S. at 343
    –44, 345–48. And the
    dissent’s reliance on Winthrop’s statement that “in general, it is”
    the war powers “from which the military tribunal derives its
    original sanction,” Dis. Op. 60 (alterations omitted) (quoting W.
    Winthrop, MILITARY LAW AND PRECEDENTS, at 831), ignores
    both that Winthrop was discussing all three kinds of military
    commission, stating the commission’s “authority is thus the same
    as the authority for the making and waging of war and for the
    exercise of military government and martial law,” and that
    Winthrop looked exclusively to the Define and Punish Clause as
    the source of authority for law of war commissions to try spying
    and aiding the enemy, see W. Winthrop, MILITARY LAW AND
    PRECEDENTS, at 831.
    Second, the dissent maintains that if conspiracy does not
    fall within the Article III exception for law of war military
    commissions, then Bahlul’s conviction must be affirmed under
    Schor’s multi-factor balancing approach. See Dis. Op. 73–80.
    The Supreme Court has never suggested that an entire criminal
    adjudication outside an established Article III exception could
    ever satisfy the Schor analysis. The dissent cites Palmore to
    suggest otherwise, see 
    id. at 7
    2, but the Court conducted no
    balancing analysis in Palmore because the case involved a
    criminal adjudication within the established Article III exception
    for territorial courts. 
    Palmore, 411 U.S. at 403
    ; see Northern
    
    Pipeline, 458 U.S. at 55
    & n.16 (plurality op.). But even
    accepting the dissent’s premise, its analysis fails on its own
    terms. Bahlul’s military commission is on the wrong side of
    nearly every balancing factor that the Supreme Court has
    applied.
    With respect to what the dissent characterizes as the “most
    important[]” factor, Dis. Op. 74, the 2006 MCA provides for
    appellate review “only with respect to matters of law, including
    33
    the sufficiency of the evidence to support the verdict,” 10 U.S.C.
    § 950g(d). Sufficiency review is “sharply limited,” Wright v.
    West, 
    505 U.S. 277
    , 296 (1992), and “very deferential[],” United
    States v. Harrison, 
    931 F.2d 65
    , 71 (D.C. Cir. 1991). This is
    exactly the type of limited judicial review the Supreme Court has
    repeatedly held offends Article III. See 
    Stern, 131 S. Ct. at 2611
    ;
    
    Schor, 478 U.S. at 853
    ; Northern 
    Pipeline, 458 U.S. at 85
    , 86
    n.39 (plurality op.); 
    id. at 91
    (Rehnquist, J., concurring in the
    judgment); Crowell v. Benson, 
    285 U.S. 22
    , 57 (1932). The
    dissent pretends otherwise, glossing over the details of Schor and
    ignoring Stern and Northern Pipeline. See Dis. Op. 74–76. In
    Stern, the Supreme Court faulted the bankruptcy statute for
    providing judicial review “only under the usual limited appellate
    standards,” which “require[d] marked deference to, among other
    things, the [tribunal’s] findings of 
    fact.” 131 S. Ct. at 2611
    . The
    Court reached the same conclusion in Northern 
    Pipeline, 458 U.S. at 85
    , 86 n.39 (plurality op.); 
    id. at 91
    (Rehnquist, J.,
    concurring in the judgment). In Schor, the Court noted that
    “CFTC orders are [] reviewed under the same ‘weight of the
    evidence’ standard sustained in Crowell, rather than the more
    deferential [clearly erroneous] standard found lacking in
    Northern 
    Pipeline.” 478 U.S. at 853
    . The “sufficiency of the
    evidence” standard in the 2006 MCA is more deferential than the
    “usual limited appellate standards” rejected in Stern and the
    “clearly erroneous” standard rejected in Northern Pipeline and
    Schor. Rather than addressing these holdings directly, the
    dissent relies on inapposite precedent involving (1) “adjunct”
    fact-finders within Article III courts, see Dis. Op. 75 (citing
    
    Crowell, 285 U.S. at 51
    ); see also 
    Stern, 131 S. Ct. at 2619
    ;
    Northern 
    Pipeline, 458 U.S. at 78
    (plurality op.), (2) factual
    review in appeals from state courts and Article III district courts,
    see Dis. Op. 75–76 (citing Jackson v. Virginia, 
    443 U.S. 307
    ,
    318–19 (1979); The Francis Wright, 
    105 U.S. 381
    , 386 (1881)),
    and (3) cases within the “public rights” exception to Article III,
    where there is no reason to apply a balancing analysis, see Dis.
    34
    Op. 76 (citing Estep v. United States, 
    327 U.S. 1
    14 (1946)). No
    Article III issue was raised or addressed in Estep or Jackson.
    Thus, the dissent’s “most important[]” factor — appellate review
    for legal error only, 
    id. at 7
    4 — is one the Supreme Court has
    expressly foreclosed.
    In Sharif, where the Court upheld adjudication by
    bankruptcy courts outside the established Article III exception,
    the two necessary factors were the parties’ consent to the
    adjudication, and the fact that “Article III courts retain[ed]
    supervisory authority over the process.” Sharif, No. 13-935, slip
    op. at 12. Neither is true in Bahlul’s case. First, the Court in
    Sharif emphasized that litigant consent has been a crucial factor
    in its prior decisions on non-Article III adjudication: In Schor,
    the Court “[l]ean[ed] heavily on the importance of Schor’s
    consent.” Sharif, No. 13-935, slip op. at 9; see 
    id. at 14
    n.10.
    Subsequent decisions by the Supreme Court involving the
    Federal Magistrates Act “reiterated the importance of consent to
    the constitutional analysis.” 
    Id. at 10.
    And in both Stern and
    Northern Pipeline, compliance with Article III “turned on”
    whether the litigant “truly consent[ed]” to the adjudication. 
    Id. at 15
    (internal quotation marks omitted). Bahlul plainly did not
    “consent” to his trial by military commission. As the en banc
    court observed, he “objected to the commission’s authority to try
    him” and “flatly refused to participate in the military commission
    proceedings,” even assuming his objections were “too general”
    to raise specific legal claims. 
    Bahlul, 767 F.3d at 10
    (internal
    quotation marks omitted); see Trial Tr. 96–97 (“Bahlul has made
    it very clear that he is boycotting and that he does not recognize
    this commission.”); contra Dis. Op. 74. Second, the Court in
    Sharif relied on the fact that bankruptcy judges are appointed,
    referred cases, allowed to keep cases, supervised, and removable
    by Article III judges, who thus retain “total control and
    jurisdiction” over bankruptcy adjudication. Sharif, No. 13-935,
    slip op. at 13 (internal quotation marks omitted); see 
    id. at 3–4.
                                   35
    The Court expressly conditioned its holding on this level of
    “control by the Article III courts.” 
    Id. at 12,
    15. Nothing of the
    sort is true in Bahlul’s case. Military commissions under the
    2006 MCA are independent of the Article III courts except for
    very limited appellate review.
    Another factor the Supreme Court has considered is the
    “concern[] that drove Congress to depart from the requirements
    of Article III.” 
    Schor, 478 U.S. at 851
    . In non-Article III
    adjudications upheld by the Supreme Court, Congress’s
    “concern” was the fact that an ostensibly “private” claim was so
    “closely intertwined with a federal regulatory program,”
    Granfinanciera, S.A. v. Nordberg, 
    492 U.S. 33
    , 54 (1989), that
    the program would be “confounded” without the ability to
    adjudicate that claim. 
    Schor, 478 U.S. at 856
    ; see Sharif, No. 13-
    935, slip op. at 13; 
    Stern, 131 S. Ct. at 2613
    –14; Thomas v.
    Union Carbide Agric. Products Co., 
    473 U.S. 568
    , 593–94
    (1985). Neither the government nor the dissent offer any reason
    to conclude that otherwise-valid military commission
    prosecutions will be “confounded” by the inability to prosecute
    non-law of war offenses.
    Bahlul’s military commission fails a number of other Schor
    factors the dissent neglects to mention. The military commission
    resolves “all matters of fact and law in whatever domains of the
    law to which” a charge may lead. 
    Stern, 131 S. Ct. at 2610
    (internal quotation marks and alterations omitted). It “‘issue[s]
    final judgments, which are binding and enforceable,’” 
    id. at 26
    10–11 (quoting Northern 
    Pipeline, 458 U.S. at 85
    –86
    (plurality op.)); see 
    Schor, 478 U.S. at 853
    , and “subject to
    review only if a party chooses to appeal,” 
    Stern, 131 S. Ct. at 2619
    . As for the “origins and importance of the right to be
    adjudicated,” 
    Schor, 478 U.S. at 851
    , the right to “[f]reedom
    from imprisonment” is one of the oldest and most basic in our
    legal system. Zadvydas v. Davis, 
    533 U.S. 678
    , 690 (2001). The
    36
    circumstances of Bahlul’s prosecution thus could not be further
    from Schor. There, Congress added to an Article I tribunal
    otherwise within an established Article III exception the
    authority to adjudicate a closely intertwined common-law cause
    of action, only with the consent of the parties, without authority
    to issue final enforceable judgements, and with meaningful
    factual review on appeal. Here, in Bahlul’s case, Congress has
    created a standalone Article I tribunal to adjudicate his entire
    criminal case without his consent, with the ability to issue final
    enforceable judgments, and with almost no factual review on
    appeal.
    If Bahlul’s military commission falls outside the historical
    Article III exception for law of war military commissions, then
    there is no question that it usurps “the essential attributes of
    judicial power.” 
    Schor, 478 U.S. at 851
    (internal quotation
    marks omitted). The Supreme Court unanimously agreed in
    Stern that “Congress may not vest in a non-Article III court the
    power to adjudicate, render final judgment, and issue binding
    orders in [an adjudication of private rights], without consent of
    the litigants, and subject only to ordinary appellate 
    review.” 131 S. Ct. at 2624
    (Breyer, J., dissenting); 
    id. at 26
    15 (majority op.);
    see 
    Thomas, 473 U.S. at 584
    . The dissent struggles,
    unpersuasively, to avoid this conclusion. It suggests that military
    commissions somehow do not raise the same separation-of-
    powers concerns as bankruptcy courts, see Dis. Op. 79; contra
    
    Hamdan, 456 U.S. at 638
    (Kennedy, J., concurring in part), even
    though bankruptcy judges are appointed, supervised, and
    removable by Article III courts, see Sharif, No. 13-935, slip op.
    at 13; Peretz v. United States, 
    501 U.S. 923
    , 938–39 (1991). It
    points to the established Article III exception for military
    commissions, see Dis. Op. 79–80, even though the analysis in
    Schor is premised on the adjudication being outside of such an
    exception, as the dissent elsewhere acknowledges, see 
    id. at 7
    1,
    37
    73, 80. The government, unsurprisingly, has barely presented
    any balancing analysis, see Appellee’s Br. 51.
    III.
    For more than seventy years the Supreme Court has adhered
    to the definition of the law of war articulated in Quirin, which
    the government concedes does not prohibit conspiracy. The
    government has failed to identify a sufficiently settled historical
    practice for this court to conclude that the inchoate conspiracy
    offense of which Bahlul was convicted falls within the Article III
    exception for law of war military commissions. Absent further
    guidance from the Supreme Court, this court must apply the
    settled limitations that Article III places on the other branches
    with respect to the “judicial Power of the United States.” U.S.
    CONST. art. III, § 1.
    Contrary to the government’s suggestion, vacating Bahlul’s
    inchoate conspiracy conviction does not “cast doubt on the
    constitutional validity of the most prominent military
    commission precedents in our nation’s history.” Appellee’s Br.
    52. The Lincoln assassins and Colonel Grenfel were tried by
    mixed commissions, whose jurisdiction was based on martial
    law. The lawfulness of military commission jurisdiction over the
    charges against the Nazi saboteurs and Colepaugh was judicially
    upheld without having to reach the conspiracy charges. Neither
    does our holding “inappropriately restrict Congress’s ability, in
    the absence of broad concurrence by the international
    community, to adapt the range of offenses triable by military
    commission in light of future changes in the practice of modern
    warfare and the norms that govern it.” 
    Id. at 38.
    Military
    commissions retain the ability to prosecute joint criminal
    enterprise, aiding and abetting, or any other offenses against the
    law of war, however it may evolve. Congress retains the
    authority it has always had to proscribe domestic offenses
    38
    through the criminal law in the civil courts. The international
    law of war limits Congress’s authority because the Constitution
    expressly ties that authority to “the Law of Nations,” U.S.
    CONST. art. I, § 8, cl. 10.
    Accordingly, we hold that Bahlul’s conviction for inchoate
    conspiracy by a law of war military commission violated the
    separation of powers enshrined in Article III § 1 and must be
    vacated. We need not and do not address Bahlul’s other
    contentions.
    1
    TATEL, Circuit Judge, concurring: Although I agree that
    al Bahlul’s conviction runs afoul of Article III of the
    Constitution, I write separately to explain why, having joined
    the en banc Court in upholding that conviction, I now join an
    opinion that invalidates it. I also wish to draw out a few points
    that are especially relevant to the separation-of-powers
    questions this case presents.
    Sitting en banc, this Court decided last year that the Ex
    Post Facto Clause does not prevent Congress from granting
    military commissions jurisdiction over the crime of
    conspiracy. We began by noting that in the months leading up
    to the September 11th attacks, when al Bahlul committed his
    crimes, federal law gave military commissions jurisdiction
    over “offenders or offenses that by statute or by the law of
    war may be tried by military commissions.” 10 U.S.C. § 821
    (emphasis added). Because no statute on the books in 2001
    allowed military commissions to try conspiracy, the en banc
    Court needed to determine whether that crime qualified as a
    “law of war” offense at that time and was thus triable by
    military commission. If so, the Court observed, al Bahlul’s ex
    post facto argument would necessarily fail. Reviewing much
    of the same history and case law before us now, the en banc
    Court was unable to conclude that “conspiracy was not
    already triable by law-of-war military commissions” in 2001.
    Al Bahlul v. United States, 
    767 F.3d 1
    , 18 (D.C. Cir. 2014).
    So why the different result here? The answer is the
    standard of review. The en banc Court came down the way it
    did, and I voted the way I did, because al Bahlul had forfeited
    his ex post facto challenge by failing to raise it before the
    Commission, so our review was for plain error. Applying that
    highly deferential standard, the Court concluded that it was
    “not ‘obvious’” that conspiracy was “not . . . triable by law-
    2
    of-war military commissions” at the time al Bahlul committed
    his crimes. 
    Id. at 27.
    The government insists that al Bahlul also failed to raise
    his Article III argument below. But even if that were true, the
    Article III claim is structural, see Reid v. Covert, 
    354 U.S. 1
    ,
    21 (1957) (“Every extension of military jurisdiction is an
    encroachment on the jurisdiction of civil courts . . . .”), and
    the Supreme Court held in Commodities Futures Trading
    Commission v. Schor that structural claims cannot be waived
    or forfeited, see 
    478 U.S. 833
    , 850–51 (1986) (“To the extent
    that [a] structural principle is implicated in a given case, the
    parties cannot by consent cure the constitutional difficulty.”).
    This Court followed suit in Kuretski v. Commissioner of
    Internal Revenue Service, holding that “the Supreme Court
    has recognized an exception” to the “general rule” that a party
    may forfeit an argument it fails to raise below: we may
    nonetheless “hear ‘a constitutional challenge’ . . . if the
    ‘alleged defect . . . goes to the validity of the . . .
    proceeding.’” 
    755 F.3d 929
    , 936 (D.C. Cir. 2014) (quoting
    Freytag v. Commissioner of Internal Revenue Service, 
    501 U.S. 868
    , 879 (1991)). The Supreme Court, moreover,
    recently reaffirmed Schor’s holding in Wellness International
    Network, Ltd. v. Sharif: “a litigant’s waiver of his ‘personal
    right’ to an Article III court is not always dispositive[;] . . .
    [t]o the extent that [a] structural principle is implicated in a
    given case . . . the parties cannot by consent cure the
    constitutional difficulty.” 575 U.S. __ (2015), slip op. at 9
    (quoting 
    Schor, 478 U.S. at 850
    –51); see 
    id., dissenting op.
    at
    12 (Roberts, C.J.) (“nobody disputes that Schor forbids a
    litigant from consenting to a constitutional violation when the
    structural component of Article III is implicated”) (internal
    quotation marks omitted); Op. at 6–7. If, as the dissent argues,
    the Court instead intended to hold that structural claims are
    now forfeitable, see Dissenting Op. 14–15, thus overruling
    3
    decades of precedent and requiring us to depart from our own
    case law, then I suspect it would have made that point clear.
    Under these circumstances, the en banc Court’s
    conclusion that it was neither “clear” nor “obvious”—that is,
    not “plain”—that the law of war is purely international cannot
    determine the outcome of this case. However unclear the law
    and the evidence, we must decide not whether the error below
    was plain, but whether there was any error at all. In my view,
    whether Article III prohibits military commissions from
    trying conspiracy turns on what Ex Parte Quirin says and
    what Hamdan does not.
    Article III provides that Congress “may vest[] . . . the
    judicial power of the United States . . . only in courts whose
    judges enjoy the protections set forth in that Article.” Stern v.
    Marshall, 
    131 S. Ct. 2594
    , 2620 (2011) (emphasis added).
    The Supreme Court has ruled time and again that this mandate
    is essentially ironclad, allowing exceptions only where
    “delineated in [the Court’s] precedents, rooted in history and
    the Constitution.” Northern Pipeline Construction Co. v.
    Marathon Pipe Line Co., 
    458 U.S. 50
    , 74 (1982). One such
    exception—the only one relevant here—permits Congress to
    assign certain criminal cases to military commissions. See Al
    
    Bahlul, 767 F.3d at 7
    . The question in this case is whether
    conspiracy to commit war crimes falls within the military-
    commission exception to Article III as articulated by the
    Supreme Court.
    The search for precedent on that question begins and, for
    the most part, ends with Ex Parte Quirin. Although the en
    banc Court considered Quirin in some depth, our review here
    must be more searching, and that heightened standard leads
    me to a different result.
    4
    In Quirin, the Supreme Court described the contours of
    the military-commission exception: commissions, the Court
    ruled, may try enemy belligerents for violations of the “law of
    war.” Ex Parte Quirin, 
    317 U.S. 1
    (1942). That holding, of
    course, goes only so far. Because the conviction the Court
    sustained was for passing behind enemy lines out of uniform
    in order to attack military assets, and because the Court
    assumed that that crime violated the international law of
    war—whatever the contemporary scholarly view—it had no
    reason to decide whether the law-of-war exception was
    limited to international law. See 
    Quirin, 317 U.S. at 36
    –37;
    Op. at 10–11.
    That question is critical here because in defending the
    constitutionality of MCA section 950, the government
    concedes that conspiracy does not violate the international
    law of war, thus implicitly acknowledging that by enacting
    that provision, Congress was not exercising its Article I
    authority to “define” the law of war. Given this, the issue
    before us is not whether this court must defer to Congress’s
    “definition” of international law, but whether, as the
    government insists, the law of war includes some domestic
    crimes.
    In my view, the weight of the Court’s language in Quirin
    strongly indicates that the law-of-war exception is exclusively
    international. Making this point repeatedly, the Court
    observed that in sending Quirin and his fellow saboteurs to a
    military commission, Congress had permissibly “exercised its
    authority . . . by sanctioning . . . 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
    (emphasis added); see also 
    id. at 29
    (calling the law
    of war a “branch of international law”). The Court made the
    5
    point even clearer in Yamashita: military-commission
    authority derives from “the Law of Nations . . . of which the
    law of war is a part.” 
    327 U.S. 1
    , 7 (1946) (alteration in
    original) (emphasis added); see also Op. at 12–14.
    Still, the Supreme Court never held—because it had no
    need to—that military commissions are barred from trying
    crimes recognized only by domestic law. Instead, it left that
    question for another day. That day looked like it would come
    in 2006 when the Court took up the case of Salim Hamdan,
    Osama Bin Laden’s personal driver, who was convicted of,
    among other things, conspiring to commit acts of terrorism.
    Like al Bahlul, Hamdan argued that the military commission
    that convicted him lacked jurisdiction because conspiracy was
    not a violation of the law of war. The Court, however, never
    reached that issue because it resolved the case on statutory
    grounds, i.e., it held that the commission’s procedures ran
    afoul of the Uniform Code of Military Justice. In other words,
    the Court ruled that domestic law could limit military
    commission jurisdiction, but it had no reason to decide
    whether it could extend it.
    The government, though agreeing that the Hamdan Court
    never directly held that the law of war includes domestic
    precedent, nonetheless argues that “seven justices . . . agreed
    that resolution of the question did not turn solely on whether
    conspiracy was a violation of international law.”
    Respondent’s Br. 41. As the government points out, Justice
    Thomas, writing on behalf of himself and two other Justices,
    did embrace this proposition. See 
    Hamdan, 548 U.S. at 689
    (Thomas, J., dissenting) (“The common law of war as it
    pertains to offenses triable by military commission is derived
    from the experience of our wars and our wartime tribunals,
    and the laws and usages of war as understood and practiced
    by the civilized nations of the world.”) (citation and internal
    6
    quotation marks omitted). But Justice Kennedy, writing for
    himself and three other Justices, relied on Quirin for the
    proposition that the law of war “derives from ‘rules and
    precepts of the law of nations’; it is the body of international
    law governing armed conflict,” 
    id. at 641
    (Kennedy, J.,
    concurring) (quoting 
    Quirin, 317 U.S. at 28
    ) (emphases
    added)—a definition that rules out resort to domestic law.
    To be sure, Justice Stevens observed that “[t]he crime of
    ‘conspiracy’ has rarely if ever been tried as such in this
    country by any law-of-war military commission.” 
    Id. at 603
    (Stevens, J., plurality opinion). The government, however,
    reads far too much into this reference to domestic practice, for
    in the very same sentence Justice Stevens emphasized that
    “international sources”—the Geneva Conventions and the
    Hague Conventions, which he described as “the major treaties
    on the law of war”—“confirm” that conspiracy “is not a
    recognized violation of the law of war.” 
    Id. at 610
    (emphasis
    added). Justice Stevens described Quirin in similar terms:
    sabotage was triable by military commission in that case
    because it “was, by universal agreement and practice both in
    this country and internationally, recognized as an offense
    against the law of war.” 
    Id. at 603
    (quoting 
    Quirin, 317 U.S. at 30
    ) (emphasis added) (internal quotation marks omitted).
    By stating that international law “confirms” that conspiracy is
    not a violation of the law of war, and by describing the Quirin
    sabotage as a violation of the law of war because it was
    treated as such “both in this country and internationally,”
    Justice Stevens was saying that, at a minimum, an act must
    violate the international law of war before Congress can grant
    military commissions jurisdiction over that crime. In other
    words, Justice Stevens did not conclude that domestic law
    alone could support military-commission jurisdiction over
    conspiracy. This interpretation of Justice Stevens’s opinion
    seems especially obvious given that the three Justices who
    7
    signed onto his opinion also joined Justice Kennedy’s
    statement that the law of war “is . . . international law,” 
    id. at 641
    (Kennedy, J., concurring), and not Justice Thomas’s
    opinion to the contrary.
    Thus, although the Court held in Hamdan that domestic
    law—namely, the UCMJ—can limit the scope of military-
    commission jurisdiction, only three Justices would have
    extended that jurisdiction beyond the international law of war
    to the “American common law of war.” Given this, and given
    that Article III courts are the default, that exceptions must be
    “delineated in [the Court’s] precedents,” Northern 
    Pipeline, 458 U.S. at 74
    , and that the Schor balancing factors favor al
    Bahlul, see Op. at 33–36, this “inferior” court is without
    authority to go beyond the Supreme Court’s clear signal, sent
    first in Quirin and repeated in Yamashita, that military-
    commission jurisdiction is limited to crimes that violate the
    international law of war. See United States v. Dorcely, 
    454 F.3d 366
    , 375 (D.C. Cir. 2006) (the Supreme Court’s
    “carefully considered language . . . must be treated as
    authoritative”). Instead, we must leave it to the Supreme
    Court to take that step.
    Moreover, and again proceeding on de novo review, I see
    nothing in Article I of the Constitution that requires a
    different result. Judge Rogers demonstrates this convincingly.
    See Op. at 19–26. I add only that were the government correct
    about Article I, Congress would have virtually unlimited
    authority to bring any crime within the jurisdiction of military
    commissions—even theft or murder—so long as it related in
    some way to an ongoing war or the armed forces. Congress
    could simply declare any crime to be a violation of the law of
    war and then vest military commissions with jurisdiction to
    try it, thereby gutting Article III’s critical protections. The
    Supreme Court rejected that view of Article I in Northern
    8
    Pipeline. There, the Court concluded that Congress had no
    authority to establish bankruptcy courts entirely outside of
    Article III’s reach because any limit on such “broad
    legislative discretion” would prove “wholly illusory.”
    Northern 
    Pipeline, 458 U.S. at 73
    –74. Like the bankruptcy
    scheme the Court rejected in Northern Pipeline, the
    government’s view of Article I would “effectively eviscerate
    [Article III’s] guarantee of an independent Judicial Branch of
    the Federal Government.” 
    Id. at 74.
    Although the foregoing is sufficient to resolve this case,
    the government makes one more argument that deserves
    attention. Limiting commission jurisdiction to offenses that
    violate international law, it asserts, “would . . . inappropriately
    restrict Congress’s ability, in the absence of broad
    concurrence by the international community, to adapt . . . [to]
    future changes in the practice of modern warfare and the
    norms that govern it.” Respondent’s Br. 38; see also
    Dissenting Op. at 30–31. I agree with the government’s
    premise: that as a result of today’s decision, Congress will be
    unable to vest military commissions with jurisdiction over
    crimes that do not violate the international law of war. But as
    explained above, that is precisely what the Constitution, as
    interpreted by the Supreme Court, requires.
    Despite the government’s protestations, moreover, this
    court’s holding will not “inappropriately restrict” the nation’s
    ability to ensure that those who conspire to commit terrorism
    are appropriately punished. After all, the government can
    always fall back on the apparatus it has used to try federal
    crimes for more than two centuries: the federal courts. See 18
    U.S.C. § 371 (criminalizing conspiracy). Federal courts hand
    down thousands of conspiracy convictions each year, on
    everything from gun-running to financial fraud to, most
    important here, terrorism. See CENTER ON LAW AND
    9
    SECURITY,    NEW YORK UNIVERSITY SCHOOL OF LAW,
    TERRORIST     TRIAL REPORT CARD: SEPTEMBER 11, 2001-
    SEPTEMBER      11, 2011 at 2, 7, table 1, available at
    http://goo.gl/Ks3Okc (since September 11, 2001, prosecutors
    have prevailed in almost 200 “jihadist-related” terrorism and
    national-security cases in federal courts); 
    id. at 13
    (“the most
    commonly charged crimes” have included violations of 18
    U.S.C. § 371, for “general criminal conspiracy”). For
    instance, Zacarias Moussaoui—the potential 20th 9/11
    hijacker—pled guilty in federal court to six counts of
    conspiracy for his role in planning the 2001 attacks, see
    United States v. Moussaoui, 
    591 F.3d 263
    , 266 (4th Cir.
    2010); a federal jury convicted Wadih el Hage, Mohamed
    Odeh, and Mohamed al Owhali for conspiring to bomb the
    American embassies in Kenya and Tanzania, see In re
    Terrorist Bombings of U.S. Embassies in East Africa, 
    552 F.3d 93
    , 107 (2d Cir. 2008); and Ahmed Abu Khattalah, who
    stands accused of conspiring to attack the American
    diplomatic mission in Benghazi, Libya, awaits trial in this
    very courthouse, see Superseding Indictment, United States v.
    Ahmed Abu Khattala, No. 14-cr-141 (D.D.C. Oct. 14, 2014),
    ECF No. 19.
    By contrast, although the detention camp at the U.S.
    naval station at Guantánamo Bay has held at least 780
    individuals since opening shortly after September 11th, and
    although military prosecutors have brought charges against
    some two hundred, the commissions have convicted only
    eight: al Bahlul, Hamdan, Noor Uthman Muhammed,
    David Hicks, Omar Khadr, Majid Khan, Ibrahim al Qosi, and
    Ahmed al Darbi. See MIAMI HERALD, Guantánamo: By the
    Numbers, http://goo.gl/SEPfV6 (last updated May 12, 2015).
    Furthermore, due to various questions about the military-
    commission process itself, as of this writing only three of
    10
    those convictions—Khan’s, al Darbi’s, and al Qosi’s—remain
    on the books and unchallenged.
    1
    KAREN LECRAFT HENDERSON , Circuit Judge, dissenting:
    In 1952, the Honorable Robert H. Jackson—Associate Justice
    of the United States Supreme Court and former chief
    prosecutor at Nuremberg—set out what has become the
    “accepted framework” for our constitutional jurisprudence in
    the areas of national security and military affairs. Medellín v.
    Texas, 
    552 U.S. 491
    , 524 (2008). Justice Jackson famously
    identified three categories of governmental action.
    Youngstown Sheet & Tube Co. v. Sawyer, 
    343 U.S. 579
    , 635–
    38 (1952) (Jackson, J., concurring). When the President and
    the Congress disagree (Category 3), their powers are
    subtractive. 
    Id. at 637–38.
    When the President and the
    Congress act in concert (Category 1), however, their powers
    are additive: “the United States is invested with all the
    attributes of sovereignty” and the courts “should hesitate long
    before limiting or embarrassing such powers.” 
    Id. at 635–37
    & n.2 (quoting Mackenzie v. Hare, 
    239 U.S. 299
    , 311 (1915))
    (emphasis omitted).
    Yet, according to my colleagues, Justice Jackson didn’t
    get the math quite right. He apparently failed to factor in an
    additional constraint on the political branches’ combined war
    powers: international law. My colleagues contend—as a
    matter of constitutional law, not simple comity—that the
    Congress cannot authorize military-commission trials unless
    the international community agrees, jot and tittle, that the
    offense in question violates the law of war. And the content
    of international law is to be determined by—who else?—the
    Judiciary, with little or no deference to the political branches.
    Contra Rostker v. Goldberg, 
    453 U.S. 57
    , 65–66 (1981)
    (“perhaps in no other area has the Court accorded Congress
    greater deference” than “in the context of Congress’ authority
    over national defense and military affairs”).            But the
    definition and applicability of international law is, in large
    part, a political determination, see Finzer v. Barry, 
    798 F.2d 2
    1450, 1459–60 (D.C. Cir. 1986), aff’d in part, rev’d in part
    sub nom. Boos v. Barry, 
    485 U.S. 312
    (1988), and the
    decision to try an alien enemy combatant by military
    commission is part and parcel of waging war, see Application
    of Yamashita, 
    327 U.S. 1
    , 11–12 (1946). The majority
    opinion thereby draws us into a thicket, one in which our
    “lack of competence . . . is marked,” 
    Rostker, 453 U.S. at 65
    ,
    our democratic unaccountability glaring, Gilligan v. Morgan,
    
    413 U.S. 1
    , 10 (1973), and the ramifications of our actions
    unpredictable, Holder v. Humanitarian Law Project, 
    561 U.S. 1
    , 34 (2010) (“most federal judges” do not “begin the day
    with briefings that may describe new and serious threats to
    our Nation and its people”).
    The immediate consequences of today’s decision are
    serious enough: my colleagues bar the Government from
    employing military commissions to try individuals who
    conspire to commit war crimes against the United States. But
    the consequences moving forward may prove more alarming
    still. My colleagues’ opinion means that, in future conflicts,
    the Government cannot use military commissions to try
    enemy combatants for any law-of-war offense the
    international community has not element-by-element
    condoned. Their timing could not be worse. See Letter from
    the President to the Congress of the United States –
    Authorization for the Use of United States Armed Forces in
    Connection with the Islamic State of Iraq and the Levant
    (Feb. 11, 2015). And the beneficiary of today’s decision
    could not be less deserving. Ali Hamza Ahmad Suliman al
    Bahlul (Bahlul) “is an alien unlawful enemy combatant
    who—like Hitler’s Goebbels—led Osama bin Laden’s
    propaganda operation.” Bahlul v. United States, 
    767 F.3d 1
    ,
    33–34 (D.C. Cir. 2014) (en banc) (Henderson, J., concurring).
    He “freely admitted”—indeed, bragged about—his role in the
    attacks of September 11, 2001. 
    Id. at 34.
    During his military-
    3
    commission trial, he never raised any of the arguments we
    today consider. The en banc court deemed his Ex Post Facto
    challenge forfeited and reviewed it for plain error only. 
    Id. at 9–11.
    We should have taken the same approach here, rather
    than declaring unconstitutional a provision of the Military
    Commissions Act of 2006 (2006 MCA), Pub. L. No. 109-366,
    120 Stat. 2600.
    Accordingly, I must dissent.
    I. Standard of Review ................................................................3
    II. The Constitutional Challenges ...........................................29
    A. Article I .........................................................................30
    1. Define and Punish Clause.......................................32
    2. Necessary and Proper Clause .................................48
    3. Broader War Powers ...............................................53
    a. Supreme Court Precedent .................................55
    b. Winthrop’s Treatise ..........................................59
    c. Historical Practice .............................................62
    B. Article III.......................................................................68
    1. Judicial Power Clause .............................................68
    2. Criminal Jury Clause ..............................................80
    C. Equal Protection & First Amendment .........................85
    I. STANDARD OF REVIEW
    Beyond its troubling ramifications, one of the real
    tragedies of today’s decision is just how unnecessary it is.
    Rather than reaching the merits, this case should begin and
    end with the “measuring stick” of appellate decisionmaking:
    the standard of review. John C. Godbold, Twenty Pages and
    Twenty Minutes: Effective Advocacy on Appeal, 30 SW. L.J.
    801, 810 (1976). The measuring stick we should use to
    review Bahlul’s arguments is plain error.
    4
    Bahlul is an “alien unlawful enemy combatant” (enemy
    combatant) subject to trial by military commission under the
    2006 MCA. 10 U.S.C. § 948c (2006). He contends that his
    conviction of conspiracy to commit war crimes, 10 U.S.C.
    § 950v(28) (2006) (the challenged provision), violates the
    Define and Punish Clause of Article I, the Judicial Power and
    Criminal Jury Clauses of Article III, the equal protection
    component of the Fifth Amendment Due Process Clause and
    the First Amendment. Had Bahlul properly preserved these
    questions of law, we would review them de novo. See United
    States v. Popa, 
    187 F.3d 672
    , 674 (D.C. Cir. 1999). But he
    failed to do so.
    During the military-commission proceedings, as the en
    banc court determined, 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.” 
    Bahlul, 767 F.3d at 7
    .
    He “flatly refused to participate” and “instructed his trial
    counsel not to present a substantive defense.” 
    Id. at 10.
    When Bahlul did make objections, they were “couched
    entirely in political and religious terms.” 
    Id. He began
    by
    accusing the United States of being “an enemy [of] the Nation
    of Muslims” that supports “the great injustice that is carried
    out by . . . the Jews on the Muslims in Palestine.” Appendix
    (App.) 112. He concluded by disclaiming concern with the
    proceedings because they were based on earthly law, not
    Allah’s dictates. App. 116. Although he made stray
    references to “discrimination” and the “illegal” nature of his
    trial, App. 114–15, his remarks were “unquestionably ‘too
    general to have alerted the trial court to the substance of his
    point.’ ” 
    Bahlul, 767 F.3d at 10
    (quoting, inter alia, United
    States v. Bolla, 
    346 F.3d 1148
    , 1152 (D.C. Cir. 2003)
    (alteration omitted)).     Bahlul therefore forfeited every
    5
    substantive challenge to his conviction. See Puckett v. United
    States, 
    556 U.S. 129
    , 134 (2009).
    In other words, Bahlul violated the contemporaneous-
    objection rule. That rule requires a party to, in a phrase,
    “speak now or forever hold your peace”: if he fails to raise an
    argument in the trial court, he cannot raise it later on appeal.
    See 
    id. at 13
    5; Miller v. Avirom, 
    384 F.2d 319
    , 321–22 (D.C.
    Cir. 1967). The contemporaneous-objection rule serves at
    least two purposes. First, it encourages fairness by penalizing
    sandbagging—i.e., “the intentional withholding of an
    objection by a party to be raised on appeal only if he loses at
    trial.” 
    Bahlul, 767 F.3d at 9
    (citing, inter alia, Wainwright v.
    Sykes, 
    433 U.S. 72
    , 89 (1977)). Second, the rule promotes
    judicial efficiency by giving the trial court the first
    opportunity to correct errors, 
    Puckett, 556 U.S. at 134
    , and by
    ensuring that “litigation remains, to the extent possible, an
    orderly . . . winnowing process,” Exxon Shipping Co. v.
    Baker, 
    554 U.S. 471
    , 487 n.6 (2008) (quotation marks
    omitted).      See also 
    Wainwright, 433 U.S. at 90
    (contemporaneous-objection rule makes trial “main event”
    rather than mere “tryout on the road”).
    The rule operates differently in civil and criminal cases.
    See Salazar ex rel. Salazar v. Dist. of Columbia, 
    602 F.3d 431
    , 437 (D.C. Cir. 2010). In civil cases, forfeiture is usually
    the end of the matter; the appellate court does not review the
    tardy argument at all, unless it excuses the forfeiture due to
    “exceptional circumstances.” Dist. of Columbia v. Air Fla.,
    Inc., 
    750 F.2d 1077
    , 1085 (D.C. Cir. 1984). In criminal
    cases—including these unique enemy combatant cases—
    forfeiture triggers plain-error review. 
    Bahlul, 767 F.3d at 9
    (citing, inter alia, FED. R. CRIM. P. 52(b); 10 U.S.C.
    § 950a(a)). The appellate court automatically excuses the
    defendant’s forfeiture but reviews his argument under a more
    6
    exacting standard. See United States v. Olano, 
    507 U.S. 725
    ,
    732 (1993) (“[t]he appellate court must consider the error”
    but it “may correct the error . . . only if” it is plain (first
    emphasis added)). In this way, the plain-error standard
    “tempers the blow” of the contemporaneous-objection rule for
    a criminal defendant. United States v. Young, 
    470 U.S. 1
    , 15
    (1985). But it also “reflects a careful balancing of our need to
    encourage all trial participants to seek a fair and accurate trial
    the first time around against our insistence that obvious
    injustice be promptly redressed.” United States v. Frady, 
    456 U.S. 152
    , 163 (1982).
    The plain-error standard applies to “all” forfeited
    arguments in a criminal case. 
    Puckett, 556 U.S. at 136
    ;
    accord United States v. Delgado, 
    672 F.3d 320
    , 331 (5th Cir.
    2012) (“[W]e do not read [the Supreme Court’s cases] as
    allowing for any exceptions to the application of the plain-
    error test for forfeited claims.”). 1 There is only one type of
    argument that is nonforfeitable and therefore exempt from
    plain-error review: subject-matter jurisdiction. See United
    States v. Cotton, 
    535 U.S. 625
    , 631 (2002); United States v.
    David, 
    96 F.3d 1477
    , 1482 (D.C. Cir. 1996); accord United
    States v. Washington, 
    653 F.3d 1251
    , 1257–58 (10th Cir.
    2011) (“if a court ordinarily would consider an argument . . .
    1
    Most of Bahlul’s arguments involve personal constitutional rights that
    are indisputably forfeitable. See Peretz v. United States, 
    501 U.S. 923
    ,
    936 (1991) (“[t]he most basic rights of criminal defendants” can be
    forfeited); Yakus v. United States, 
    321 U.S. 414
    , 444 (1944) (“No
    procedural principle is more familiar to this Court than that a
    constitutional right may be forfeited . . . .”); see also, e.g., Johnson v.
    United States, 
    520 U.S. 461
    , 466 (1997) (right to petit jury); United States
    v. Broxton, 
    926 F.2d 1180
    , 1183 (D.C. Cir. 1991) (equal protection);
    United States v. Accardi, 
    669 F.3d 340
    , 343–44 (D.C. Cir. 2012) (First
    Amendment).
    7
    to be forfeited, it should only refrain from doing so . . . when
    the alleged error is jurisdictional”). 2         Subject-matter
    jurisdiction “can never be forfeited” because “it involves a
    court’s power to hear a case.” 
    Cotton, 535 U.S. at 630
    (emphasis added); see also United States v. Baucum, 
    80 F.3d 539
    , 540 (D.C. Cir. 1996).
    Bahlul cannot seriously contest the military
    commission’s jurisdiction. The 2006 MCA authorizes trial by
    military commission of “any offense made punishable by this
    chapter,” including “conspiracy.” 10 U.S.C. §§ 948d(a),
    950v(b)(28) (2006). It “explicitly confers jurisdiction on
    military commissions to try [Bahlul on] the charged
    offenses.” 
    Bahlul, 767 F.3d at 10
    n.6. Granted, Bahlul
    challenges this jurisdictional grant as beyond the Congress’s
    authority under the Define and Punish Clause. A challenge to
    the constitutionality of a jurisdictional statute, however, is not
    itself jurisdictional. See United States v. Williams, 
    341 U.S. 58
    , 66 (1951) (“Even the unconstitutionality of the statute
    2
    Nguyen v. United States, 
    539 U.S. 69
    (2003), and Glidden Co. v.
    Zdanok, 
    370 U.S. 530
    (1962) (plurality), are not to the contrary. In both
    cases, the criminal defendants complained that a non–Article III judge sat
    by designation on the court that reviewed or issued their respective
    convictions. 
    Nguyen, 539 U.S. at 72
    (chief judge of District Court for
    Northern Mariana Islands); 
    Glidden, 370 U.S. at 532
    (retired judge of
    Court of Customs and Patent Appeals). Although the defendants failed to
    timely raise their objections, the Supreme Court nevertheless declined to
    apply the plain-error standard. 
    Nguyen, 539 U.S. at 80
    –81; 
    Glidden, 370 U.S. at 535
    –36. Both Nguyen and Glidden, however, fit comfortably
    within the “jurisdictional” exception to plain-error review. In Glidden, the
    plurality declared that it was “treat[ing] the alleged defect as
    ‘jurisdictional.’ 
    370 U.S. at 536
    . And in Nguyen, the Court repeatedly
    described the alleged error as a challenge to the court’s 
    “authority.” 539 U.S. at 79
    –80; see also Rivera v. Illinois, 
    556 U.S. 148
    , 161 (2009)
    (unanimous) (describing Nguyen as case where court of appeals “lacked
    statutory authority to adjudicate the controversy” (emphasis added)).
    8
    under which the proceeding is brought does not oust a court
    of jurisdiction.”); United States v. Drew, 
    200 F.3d 871
    , 876
    (D.C. Cir. 2000) (noting “the error in labeling a challenge to
    the constitutionality of a statute a jurisdictional issue”);
    
    Cotton, 535 U.S. at 630
    (same); 
    Baucum, 80 F.3d at 540
    –41
    (because every federal statute enjoys “a presumption of
    validity,” the “assertion of a constitutional defect does not
    work to divest th[e] court of its original jurisdiction”).
    Bahlul’s Article I Define and Punish Clause argument is no
    more jurisdictional than his Article I Ex Post Facto Clause
    argument, which the en banc court reviewed for plain error.
    See 
    Bahlul, 767 F.3d at 10
    n.6 (“The question whether [the
    2006 MCA] is unconstitutional does not involve the court[’s]
    statutory or constitutional power to adjudicate the case.”
    (quotation marks omitted)); see also, e.g., United States v.
    Nueci-Peña, 
    711 F.3d 191
    , 197 (1st Cir. 2013) (reviewing
    Define and Punish Clause challenge for plain error); United
    States v. Urena, 140 F. App’x 879, 881 (11th Cir. 2005)
    (same).
    Bahlul’s challenge under the Judicial Power Clause of
    Article III is also forfeitable. Like his Define and Punish
    Clause argument, his Judicial Power Clause challenge is to
    the constitutionality of a jurisdictional statute, a challenge that
    is itself, to repeat, plainly nonjurisdictional. See 
    Williams, 341 U.S. at 66
    ; 
    Bahlul, 767 F.3d at 10
    n.6; 
    Baucum, 80 F.3d at 540
    –41. The “Article III” label changes nothing; by this
    Clause, Article III restricts the Congress’s power, not the
    power of the courts or military commissions. See CFTC v.
    Schor, 
    478 U.S. 833
    , 850 (1986) (“Article III, § 1 . . . bar[s]
    congressional attempts to transfer jurisdiction to non-Article
    III tribunals” (emphasis added) (quotation marks and
    alterations omitted)). If a Judicial Power Clause challenge
    were in fact jurisdictional, a court would be required to raise it
    sua sponte each time it reviews a decision of a non–Article III
    9
    tribunal (e.g., agency adjudicator, magistrate judge,
    bankruptcy court). See 
    Baucum, 80 F.3d at 541
    . Courts, of
    course, do not do this because they “would have to assure
    themselves of a statute’s validity as a threshold matter,”
    “run[ning] afoul of established Supreme Court precedent
    declining to address constitutional questions not put in issue
    by the parties.” Id.; see also, e.g., Granfinanciera, S.A. v.
    Nordberg, 
    492 U.S. 33
    , 64 n.19 (1989) (declining to reach
    Article III issue because “however helpful it might be for us
    to adjudge every . . . constitutional issue presented by [a
    statute], we cannot properly reach out and decide matters not
    before us”); United States v. Spector, 
    343 U.S. 169
    , 172
    (1952) (declining to consider sua sponte Article III Judicial
    Power Clause issue); Benjamin v. Jacobson, 
    172 F.3d 144
    ,
    163 n.** (2d Cir. 1999) (en banc) (same); In re Constr.
    Equip. Co., 
    665 F.3d 1254
    , 1256 n.3 (Fed. Cir. 2011) (same).
    Why, then, do my colleagues review Bahlul’s Article III
    challenge de novo? As best I can tell, their answer is
    “because Schor says so.” See Maj. Op. 3–9; Concur. Op. 2. I
    respectfully disagree. Here is the relevant passage from
    Schor:
    [O]ur precedents establish that Article III, § 1, not
    only preserves to litigants their interest in an
    impartial and independent federal adjudication of
    claims within the judicial power of the United States,
    but also serves as an inseparable element of the
    constitutional system of checks and balances.
    Article III, § 1 safeguards the role of the Judicial
    Branch in our tripartite system by barring
    congressional attempts to transfer jurisdiction to non-
    Article III tribunals for the purpose of emasculating
    constitutional courts, and thereby preventing the
    encroachment or aggrandizement of one branch at
    10
    the expense of the other. To the extent that this
    structural principle is implicated in a given case, the
    parties cannot by consent cure the constitutional
    difficulty for the same reason that the parties by
    consent cannot confer on federal courts subject-
    matter jurisdiction beyond the limitations imposed
    by Article III, § 2. When these Article III limitations
    are at issue, notions of consent and waiver cannot be
    dispositive because the limitations serve institutional
    interests that the parties cannot be expected to
    
    protect. 478 U.S. at 850
    –51 (emphases added) (quotation marks,
    citations and alterations omitted). But the High Court did not,
    by this language, instruct courts to treat Judicial Power Clause
    challenges as nonforfeitable or to automatically review them
    de novo.3
    3
    My colleagues note that the Government “conceded” their reading of
    Schor is correct. Maj. Op. 6. I do not take them to be saying, however,
    that the Government waived its plain-error argument. On the contrary, the
    Government “argued for plain-error review before the [United States
    Court of Military Commission Review (CMCR)], in its original brief to a
    panel of this Court and in its brief to the en banc court.” 
    Bahlul, 767 F.3d at 10
    n.5. The Government again asked us to review Bahlul’s Article III
    challenge for plain error. See Resp’t’s Br. 49–52, 60. And, even at oral
    argument, the Government objected to the notion that Bahlul was raising a
    nonforfeitable structural challenge—hardly a concession of the point. See
    Oral Arg. Recording 30:47 (“I do not acknowledge that he [Bahlul] was
    raising it [the structural Article III argument].”).
    In any event, to the extent the Government misinterprets Schor, I
    would decline to accept its interpretation. See Young v. United States, 
    315 U.S. 257
    , 259 (1942) (“The proper administration of the criminal law
    cannot be left merely to the stipulation of parties.”). The Government
    cannot alter our standard of review—by concession, inadvertence, poor
    oral advocacy or otherwise. See United States v. Delgado-Garcia, 374
    11
    Put simply, Schor is not a case about forfeitability at all.
    As already discussed, the only nonforfeitable argument is
    subject-matter jurisdiction. See 
    Cotton, 535 U.S. at 631
    ;
    
    David, 96 F.3d at 1482
    ; accord Freytag v. Comm’r, 
    501 U.S. 868
    , 893–94 (1991) (Scalia, J., concurring) (“A party forfeits
    the right to advance on appeal a nonjurisdictional claim,
    structural or otherwise, that he fails to raise at trial.”
    (emphasis added)). Schor did not hold that a Judicial Power
    Clause challenge is “jurisdictional.” Granted, the Court said
    that “parties cannot by consent cure the constitutional
    difficulty for the same reason that the parties by consent
    cannot confer on federal courts subject-matter jurisdiction.”
    
    Schor, 478 U.S. at 851
    (emphasis added). In a later case, four
    Justices speculated that Schor drew an “analogy” between the
    Judicial Power Clause and subject-matter jurisdiction.
    
    Freytag, 501 U.S. at 897
    (Scalia, J., concurring). But an
    issue’s analogy to subject-matter jurisdiction does not make it
    jurisdictional; in fact, the very need for analogy suggests that
    the concepts are different. See William Fleming, Vocabulary
    of Philosophy, in A VOCABULARY OF THE PHILOSOPHICAL
    SCIENCES 21 (1878) (“Analogy implies a difference in sort,
    and not merely in degree . . . .”); see also NFIB v. Sebelius,
    
    132 S. Ct. 2566
    , 2656 n.6 (2012) (Scalia, Kennedy, Thomas,
    Alito, JJ., dissenting) (“That the penalty is to be ‘assessed and
    collected in the same manner as taxes’ refutes the proposition
    that it is a tax . . . .” (emphases in original)). And the analogy
    is a poor one at that. Because there is nothing jurisdictional
    F.3d 1337, 1341 (D.C. Cir. 2004) (declining to accept Government’s
    concession that issue was jurisdictional and thus subject to de novo
    review); 
    Nueci-Pena, 711 F.3d at 196
    n.5 (declining to accept
    Government’s concession that constitutional challenge should be reviewed
    de novo, rather than for plain error); United States v. Vontsteen, 
    950 F.2d 1086
    , 1091 (5th Cir. 1992) (“[N]o party has the power to control our
    standard of review.” (emphasis in original)).
    12
    about a challenge to the Congress’s constitutional authority to
    enact a statute, see 
    Williams, 341 U.S. at 66
    ; 
    Bahlul, 767 F.3d at 10
    n.6; 
    Baucum, 80 F.3d at 540
    –41, a one-sentence analogy
    is far too slim a reed to conclude that Schor carved out a
    “judicial power” exception to the Court’s earlier—and
    consistent—precedent on the forfeitability of constitutional
    arguments. See, e.g., 
    Williams, 341 U.S. at 66
    ; 
    Yakus, 321 U.S. at 444
    . See generally Shalala v. Ill. Council on Long
    Term Care, Inc., 
    529 U.S. 1
    , 18 (2000) (“This Court does not
    normally overturn, or so dramatically limit, earlier authority
    sub silentio.”).
    But don’t take my word for it. The Supreme Court has
    since clarified that Schor did not declare Judicial Power
    Clause challenges to be nonforfeitable; instead, the Court in
    Schor at most exercised its discretion to excuse the forfeiture.
    In Plaut v. Spendthrift Farms, Inc., the Government—like
    Bahlul—attempted to rely on Schor for the proposition that
    “parties cannot waive the structural principle of Article III.”
    Brief for United States at 27, 
    514 U.S. 211
    (1995) (No. 93-
    1121), 
    1994 WL 387806
    . The Supreme Court expressly
    rejected this view:
    [T]he proposition that legal defenses based upon
    doctrines central to the courts’ structural
    independence can never be waived simply does not
    accord with our cases. Certainly one such doctrine
    consists of the “judicial Power” to disregard an
    unconstitutional statute; yet none would suggest that
    a litigant may never waive the defense that a statute
    is unconstitutional. . . . We held in Schor that,
    although a litigant had consented to bring a state-law
    counterclaim before an Article I tribunal, we would
    nonetheless choose to consider his Article III
    challenge, because “when these Article III
    13
    limitations are at issue, notions of consent and
    waiver cannot be dispositive,” 
    id., at 851
    (emphasis
    added). See also Freytag v. Commissioner, 
    501 U.S. 868
    , 878–879 (1991) (finding a “rare cas[e] in which
    we should exercise our discretion” to hear a waived
    claim based on the Appointments Clause, Art. II, § 2,
    cl. 2).
    
    Plaut, 514 U.S. at 231
    –32 (first emphasis added) (some
    citations omitted). Plaut makes plain that a party can forfeit a
    Judicial Power Clause argument and there is no “Schor
    exception” to the rule that a “structural” constitutional
    challenge is forfeitable. Whether an appellate court entertains
    such a challenge is a matter of discretion, not an inexorable
    command from Schor.4
    Granted, in a series of bankruptcy cases, many of our
    sister circuits interpreted Schor to create a rule of
    nonforfeitability, despite the Supreme Court’s clarification in
    Plaut. See Wellness Int’l Network, Ltd. v. Sharif, 
    727 F.3d 751
    , 767–73 (7th Cir. 2013), rev’d, No. 13-935, 
    2015 WL 2456619
    (U.S. May 26, 2015); In re BP RE, L.P., 
    735 F.3d 279
    , 286–87 (5th Cir. 2013); Waldman v. Stone, 
    698 F.3d 4
       My colleagues also cite Stern v. Marshall, 
    131 S. Ct. 2594
    (2011), to
    support their reading of Schor. Maj. Op. 6. But Stern said nothing about
    the forfeitability of Judicial Power Clause challenges. In Stern, the
    Supreme Court reviewed de novo the respondent’s Judicial Power Clause
    challenge to the bankruptcy court’s adjudication of a state-law
    counterclaim. See 
    id. at 26
    08. There is no indication, however, that the
    respondent ever forfeited this argument. Although he did forfeit his
    challenge to the bankruptcy court’s adjudication of his defamation claim,
    
    id. at 26
    06, he “did not truly consent to” its adjudication of the petitioner’s
    tortious-interference counterclaim, 
    id. at 26
    14. And, in fact, the
    respondent had earlier objected to the bankruptcy court’s jurisdiction of
    the counterclaim. See 
    id. at 26
    01–02.
    14
    910, 917–18 (6th Cir. 2012). But see In re Bellingham Ins.
    Agency, Inc., 
    702 F.3d 553
    , 566 (9th Cir. 2012), aff’d on other
    grounds sub nom. Exec. Benefits Ins. Agency v. Arkison, 
    134 S. Ct. 2165
    (2014). In Kuretski v. Commissioner, this
    Court—relying in part on the bankruptcy cases from our sister
    circuits—read Schor to mean that a party “did not (and could
    not) . . . waive his ‘structural’ claim” under the Judicial Power
    Clause of Article III. 
    755 F.3d 929
    , 937 (D.C. Cir. 2014)
    (emphasis added); see also 
    id. at 938
    (citing Waldman). No
    matter the correctness vel non of these cases when they were
    decided, their continued validity has been fatally undermined
    by two very recent Supreme Court decisions.
    In B&B Hardware, Inc. v. Hargis Indus., Inc., 
    135 S. Ct. 1293
    (2015), the Supreme Court considered whether the
    decisions of the Trademark Trial and Appeal Board—a non–
    Article III tribunal—were entitled to issue-preclusive effect.
    See 
    id. at 12
    99, 1303. If issue preclusion applied, the
    respondent claimed that the Judicial Power Clause would be
    violated. See 
    id. at 13
    04. The Court expressly declined to
    consider the claim because the respondent had not briefed it.
    See id.; see also 
    id. at 13
    05 n.2 (“[W]e do not decide whether
    such preclusion is unconstitutional because the issue is not
    before us.”); 
    id. at 13
    04 (“To the extent . . . there could be a
    meritorious constitutional objection, it is not before us.”). In
    other words, the respondent forfeited the Article III
    argument—a holding that plainly contradicts the notion that
    Judicial Power Clause challenges are nonforfeitable.
    Significantly, the Court relied on Plaut to support its
    forfeiture determination. See 
    id. at 13
    04 (citing 
    Plaut, 514 U.S. at 231
    –32).
    In Wellness International Network, Ltd. v. Sharif, No. 13-
    935 (U.S. May 26, 2015), the Supreme Court made its view
    on the forfeitability of a Judicial Power Clause challenge as
    15
    plain as day. The main holding of Sharif is that a party’s
    consent eliminates the Article III problem presented by
    bankruptcy court adjudication. See No. 13-935, slip op. at 2.
    But, near the end of the opinion, the Court also indicated that
    Judicial Power Clause challenges are forfeitable. In the
    decision under review, the Seventh Circuit had held that the
    “structural interests” protected by the Judicial Power Clause
    cannot be forfeited. See 
    id. at 7
    & n.5 (quoting 
    Sharif, 727 F.3d at 771
    ). The Supreme Court reversed that decision in
    toto. See 
    id. at 8,
    20. In fact, the Court remanded the case to
    the Seventh Circuit with instructions to conduct the
    “factbound analysis” necessary to determine “whether . . .
    Sharif forfeited his Stern argument below.” 
    Id. at 20.
    [A
    “Stern argument”—it should go without saying, contra Maj.
    Op. 7–8—is a “structural” Judicial Power Clause challenge.
    See 
    Arkison, 134 S. Ct. at 2170
    (“Stern claims” are “claim[s]
    designated for final adjudication in the bankruptcy court . . .
    but prohibited from proceeding in that way as a constitutional
    matter” because “Article III prohibits Congress from vesting a
    bankruptcy court with th[at] authority” (emphasis added)).]
    One Justice in Sharif went further, concluding that remand
    was unnecessary because the Judicial Power Clause challenge
    was indisputably forfeited:
    [R]espondent forfeited any Stern objection by failing
    to present that argument properly in the courts
    below. Stern vindicates Article III, but that does not
    mean that Stern arguments are exempt from ordinary
    principles of appellate procedure.
    
    Id., concurring op.
    at 2 (Alito, J.). He, unsurprisingly, relied
    on B&B Hardware for this conclusion. 
    Id. (citing B&B
    Hardware, 135 S. Ct. at 1304
    ). The other five Justices in the
    Sharif majority necessarily agreed that “ordinary principles of
    appellate procedure” govern, id.: they would not have
    16
    remanded the forfeiture question if the Seventh Circuit were
    right all along that a “structural” Judicial Power Clause
    challenge cannot be forfeited. 5 Accordingly, Sharif not only
    overruled our sister circuits’ earlier bankruptcy cases, but, in
    my reading, it also undermined the relevant language from
    Kuretski. Contra Maj. Op. 5.
    Notwithstanding the charge that I “misinterpret[]” Sharif,
    Maj. Op. 8, it is my colleagues’ reading that misses the mark.
    They believe Sharif reinforced Schor’s supposed rule of
    nonforfeitability. To support this point, they rely on passages
    in Sharif that discuss the distinction between the “personal”
    and “structural” aspects of Article III. See Maj. Op. 5, 6, 8
    5
    My colleagues emphasize that in Sharif the Supreme Court reviewed the
    Article III question de novo. Maj. Op. 6, 8. This is true but unhelpful to
    them. The Supreme Court granted certiorari in Sharif to determine
    whether a party’s consent cures the structural Article III problem posed by
    bankruptcy court adjudication—a question that was decided by the
    Seventh Circuit and briefed in the Supreme Court. The Court answered
    the question in the affirmative. It then remanded to the Seventh Circuit to
    determine whether Sharif in fact consented to bankruptcy court
    adjudication and—if not—whether Sharif nonetheless forfeited his
    Judicial Power Clause challenge by not timely raising it. See No. 13-935,
    slip op. at 20; Pet’r’s Wellness Int’l, et al. Br. 47–48, 
    2014 WL 4467356
    (U.S. 2014) (arguing that “litigants may waive or forfeit constitutional
    rights that implicate structural concerns”); Pet’r’s Wellness Int’l, et al.
    Reply Br. 26, 
    2014 WL 7272803
    (U.S. 2014) (again arguing that “Sharif
    forfeited his Stern argument” (quotation marks and brackets omitted)). In
    other words, the Supreme Court answered an important question of law de
    novo but still allowed for the prospect that Sharif would ultimately lose his
    appeal because he forfeited his structural Article III challenge. My
    colleagues’ decision to vacate Bahlul’s conviction in fact contradicts,
    rather than hews to, this approach. If they wanted to be faithful to Sharif’s
    disposition in the criminal context, they could have resolved Bahlul’s
    Article III claim de novo under the “error” prong of the plain-error
    standard but then affirmed his conviction because the error was not
    “plain.” See infra p. 28.
    17
    (citing Sharif, No. 13-935, slip op. at 9, 11–12, 14 n.10; 
    id., dissenting op.
    at 12 (Roberts, C.J.)). These passages,
    however, have nothing to do with appellate procedure; they
    instead speak to the merits.
    To put it another way, when Sharif speaks of “waiver,” it
    means the waiver of rights, not the forfeiture of arguments.
    The question the Court addressed in Sharif is whether
    “consent” (sometimes referred to, interchangeably, as
    “waiver”) can “cure the constitutional difficulty” presented by
    non–Article III adjudication. No. 13-935, slip op. at 9, 14
    n.10 (quoting 
    Schor, 478 U.S. at 851
    (emphasis added)); id,
    dissenting op.. at 12 (Roberts, C.J.) (same). The idea is that,
    when a party knowingly and voluntarily waives certain
    constitutional rights, no constitutional violation occurs in the
    first place. See 
    id., slip op.
    at 14 n.10; see also 
    id., dissenting op.
    at 2 (Thomas, J.) (“Although it may not authorize a
    constitutional violation, consent may prevent one from
    occurring in the first place.”). This is true for “personal”
    rights, like the right to a jury, but—as Schor and Sharif make
    plain—it is not true for violations of the Article III Judicial
    Power Clause. See 
    id., slip op.
    at 9; 
    Schor, 478 U.S. at 849
    –
    51. A party’s consent cannot, by itself, “excuse an actual
    violation of Article III” because the Judicial Power Clause
    protects “structural” interests aliunde the narrow concerns of
    the parties. Sharif, No. 13-935, slip op. at 14 n.10; see also
    
    Schor, 478 U.S. at 851
    (“When these Article III limitations
    are at issue, notions of consent and waiver cannot be
    dispositive because the limitations serve institutional interests
    that the parties cannot be expected to protect.” (emphasis
    added)). Sharif, however, clarified that consent can be one
    factor that keeps a violation of Article III from occurring, so
    long as it is not the only factor. See No. 13-935, slip op. at 14
    n.10 (“[C]onsent remains highly relevant when determining
    . . . whether a particular adjudication in fact raises
    18
    constitutional concerns . . . . [C]onsent shows, in part, why no
    [structural] violation has occurred.” (citation omitted)). This
    is an important holding: it clarifies the role of consent in the
    application of the Schor balancing test. Yet it says nothing
    about forfeiture, appellate procedure, preservation of
    arguments, standards of review or the like. It pertains only to
    the merits, i.e. the question whether Article III is in fact
    violated. 6
    The Supreme Court eloquently explained the waiver-of-
    rights/forfeiture-of-arguments distinction in Puckett:
    [The defendant’s] argument confuses the concepts of
    waiver and forfeiture. Nobody contends that [the
    defendant’s] counsel has waived—that is,
    intentionally relinquished or abandoned—[the
    defendant’s] right . . . . The objection is rather that
    [the defendant] forfeited the claim of error through
    his counsel’s failure to raise the argument in the
    District Court. This Court’s precedents requiring
    that certain waivers be personal, knowing, and
    voluntary are thus simply irrelevant. Those holdings
    6
    Even if my colleagues were correct that Sharif’s discussion of “waiver”
    refers to forfeiture, they could not reconcile the Court’s repeated
    admonitions that structural Article III challenges can, in fact, be waived.
    See, e.g., Sharif, No. 13-935, slip op. at 16–17 n.11 (“[T]he proposition
    that legal defenses based upon doctrines central to the courts’ structural
    independence can never be waived simply does not accord with our
    cases.” (quoting 
    Plaut, 514 U.S. at 231
    (emphasis added) (alteration in
    original))); 
    id. at 12
    –13 (“[A]llowing bankruptcy litigants to waive the
    right to Article III adjudication of Stern claims does not usurp the
    constitutional prerogatives of Article III courts.” (emphasis added)); 
    id. at 17
    (distinguishing Stern—a structural Article III precedent—on basis that
    “[t]he Court has never . . . h[e]ld that a litigant who has the right to an
    Article III court may not waive that right through his consent.”).
    19
    determine whether error occurred, but say nothing
    about the proper standard of review when the claim
    of error is not 
    preserved. 556 U.S. at 138
    (citation omitted) (second emphasis added).
    The Court’s analysis makes plain an obvious point when
    applied here. An enemy combatant must knowingly and
    voluntarily consent to non–Article III adjudication before his
    consent can ward off a violation of the Judicial Power Clause.
    See Sharif, No. 13-935, slip op. at 18–19. But we should not
    even review a Judicial Power Clause challenge if he forfeits
    the argument by failing to timely raise it.
    To summarize, the Supreme Court has made triply clear
    in Plaut, B&B Hardware and Sharif that Schor did not label
    an Article III challenge as nonforfeitable; instead, the Schor
    Court exercised its discretion to excuse a forfeiture of the
    Judicial Power Clause challenge. This distinction—between
    nonforfeitability, on the one hand, and discretion to excuse
    forfeiture, on the other—is crucial for two reasons.
    First, in a criminal case like this one, an appellate court
    lacks the kind of discretion the Court exercised in Schor. As
    noted, appellate courts in civil cases can excuse a forfeiture in
    “exceptional circumstances.” Air 
    Fla., 750 F.2d at 1085
    . The
    Supreme Court has expressly declined to limit this discretion.
    See Exxon 
    Shipping, 554 U.S. at 487
    . Accordingly, courts
    occasionally exercise their discretion in civil cases to review
    “structural” separation-of-powers challenges de novo,
    notwithstanding they were not raised below. See, e.g.,
    
    Freytag, 501 U.S. at 879
    ; 
    Schor, 478 U.S. at 851
    ; 
    Glidden, 370 U.S. at 536
    –37 (plurality); 
    Kuretski, 755 F.3d at 936
    –37.
    But see 
    Freytag, 501 U.S. at 892
    –901 (Scalia, J., concurring)
    (explaining why “structural” constitutional challenges should
    not receive special treatment).
    20
    The rules are different, however, in criminal cases. Over
    the last three decades, the Supreme Court has repeatedly
    restricted our authority to deviate from the plain-error
    standard. See, e.g., United States v. Marcus, 
    560 U.S. 258
    ,
    262–66 (2010); 
    Puckett, 556 U.S. at 134
    –43; 
    Cotton, 535 U.S. at 629
    –34; 
    Johnson, 520 U.S. at 466
    –70; 
    Olano, 507 U.S. at 731
    –41; 
    Young, 470 U.S. at 14
    –16 & nn.12, 14; 
    Frady, 456 U.S. at 163
    & nn.13–14. In criminal cases, the plain-error
    standard operates as a “limitation on appellate-court
    authority.” 
    Puckett, 556 U.S. at 134
    ; see also United States v.
    Farrell, 
    672 F.3d 27
    , 36 (1st Cir. 2012). It “strictly
    circumscribe[s]” our ability to remedy forfeited errors,
    
    Puckett, 556 U.S. at 134
    ; we “must” review them for plain
    error only. 
    Marcus, 560 U.S. at 266
    ; United States v. Brown,
    
    508 F.3d 1066
    , 1076 (D.C. Cir. 2007). The plain-error
    standard strikes a “careful balance” between furthering the
    purposes of the contemporaneous-objection rule and
    remedying obvious injustice. 
    Puckett, 556 U.S. at 135
    ; see
    also 
    Johnson, 520 U.S. at 466
    ; 
    Young, 470 U.S. at 15
    . “Any
    unwarranted extension” of the standard “skew[s]” this
    balance, 
    Young, 470 U.S. at 15
    , and “the creation of an
    unjustified exception”—like the one Bahlul requests—is
    “even less appropriate.” 
    Puckett, 556 U.S. at 136
    (alteration
    omitted); see also 
    Young, 470 U.S. at 16
    n.14 (criticizing
    practice of creating “per se” exceptions to plain-error review).
    Courts apply plain-error review in criminal cases
    notwithstanding “the seriousness of the error claimed.”
    
    Johnson, 520 U.S. at 466
    ; accord United States v. Padilla,
    
    415 F.3d 211
    , 220 (1st Cir. 2005) (en banc) (“forfeited errors,
    even if structural, are subject to [plain-error review]”).
    Notably, when the Supreme Court was presented with a
    “structural” Article III challenge in a criminal case, four
    Justices thought it should be reviewed for plain error—Schor
    notwithstanding. See 
    Nguyen, 539 U.S. at 88
    (Rehnquist,
    21
    C.J., dissenting). 7 Likewise, our sister circuits frequently
    review Judicial Power Clause challenges in criminal cases for
    plain error only. See, e.g., United States v. Shultz, 
    733 F.3d 616
    , 621 (6th Cir. 2013); United States v. Woodard, 
    387 F.3d 1329
    , 1331, 1333 (11th Cir. 2004); United States v. Bishop,
    
    603 F.3d 279
    , 280 (5th Cir. 2010); United States v. Tejeda,
    
    476 F.3d 471
    , 474 (7th Cir. 2007); United States v. Torres,
    
    258 F.3d 791
    , 794 (8th Cir. 2001); United States v. Mike, 
    632 F.3d 686
    , 691–92, 700 (10th Cir. 2011); United States v.
    Nash, 
    438 F.3d 1302
    , 1304 (11th Cir. 2006); United States v.
    Daniels, 
    182 F.3d 910
    (4th Cir. 1999) (table).
    The distinction between criminal and civil cases may
    seem counterintuitive because, ordinarily, the plain-error
    standard places a criminal defendant in a better position than
    a civil litigant. See 
    Bahlul, 767 F.3d at 9
    (plain-error review
    “mitigate[s] the sometimes harsh results of the forfeiture rule
    in criminal cases”). But this intuition focuses myopically on
    one side of the plain-error “balance” to the exclusion of the
    other. 
    Puckett, 556 U.S. at 135
    . Plain-error review gives the
    contemporaneous-objection rule its “necessary bite.” Daniel
    J. Meltzer, State Court Forfeitures of Federal Rights, 99
    HARV. L. REV. 1128, 1135 (1986); see also 
    id. (“A requirement
    that a particular issue be raised in a particular
    fashion or at a particular time would hardly be effective if
    failures to comply were never punished.”). As the Supreme
    Court has cautioned, “a reflexive inclination by appellate
    courts to reverse because of unpreserved error would be fatal”
    to the rationale of the contemporaneous-objection rule.
    
    Puckett, 556 U.S. at 134
    (emphasis added). That rationale is
    “especially compelling” in criminal cases. Cobbledick v.
    7
    The majority in Nguyen did not reach the Article III question because it
    decided the case on an alternate statutory ground. 
    See 539 U.S. at 81
    .
    22
    United States, 
    309 U.S. 323
    , 325 (1940); see also Di Bella v.
    United States, 
    369 U.S. 121
    , 124 (1962) (“undue litigiousness
    and leaden-footed administration of justice [are] particularly
    damaging to the conduct of criminal cases”). Society has an
    especially strong interest in the finality of criminal
    proceedings because “[w]ithout [it], the criminal law is
    deprived of much of its deterrent effect.” Teague v. Lane, 
    489 U.S. 288
    , 309 (1989); see also 
    id. (“No one,
    not criminal
    defendants, not the judicial system, not society as a whole is
    benefited by a judgment providing that a man shall tentatively
    go to jail today, but tomorrow and every day thereafter his
    continued incarceration shall be subject to fresh litigation.”);
    
    Young, 470 U.S. at 16
    (“To turn a criminal trial into a quest
    for error no more promotes the ends of justice than to
    acquiesce in low standards of criminal prosecution.”). In
    short, plain-error review reconciles multiple competing
    concerns in criminal cases and provides a rule to
    accommodate them ex ante. Absent jurisdictional error, we
    cannot do otherwise than apply this venerable standard. 8
    8
    None of this analysis—contrary to my colleagues’ contention, Maj. Op.
    9—turns on the applicability of FED. R. CRIM. P. 52(b). The en banc court
    imported the plain-error standard into enemy combatant cases “whether or
    not Rule 52(b) directly governs.” 
    Bahlul, 767 F.3d at 9
    n.4 (citing
    
    Salazar, 602 F.3d at 437
    ). The plain-error standard strikes a delicate
    “balance” that is irrevocably “skew[ed]” whenever courts exempt litigants
    from its requirements. 
    Salazar, 602 F.3d at 440
    . The Supreme Court’s
    decisions to this effect bind us no matter the doctrinal source of the plain-
    error standard. See 
    Olano, 507 U.S. at 731
    (noting that Rule 52(b) is
    merely “a restatement of existing law” (quoting FED. R. CRIM. P. 52(b),
    advisory committee’s note (1944))).
    To the extent it makes a difference, the plain-error standard does
    have a statutory basis in enemy combatant cases. The 2009 MCA
    provides that “[a] finding or sentence of a military commission . . . may
    not be held incorrect on the ground of an error of law unless the error
    23
    materially prejudices the substantial rights of the accused.” 10 U.S.C.
    § 950a(a). The Congress took this language from the review provision in
    the Uniform Code of Military Justice (UCMJ). See 
    id. § 859(a);
    see also
    
    id. § 948b(c)
    (“[t]he procedures for military commissions . . . are based
    upon the procedures for trial by general courts-martial under . . . the
    [UCMJ]”). The U.S. Court of Appeals for the Armed Forces (CAAF) has
    long read the UCMJ’s review provision to incorporate a plain-error
    standard that is identical, in all material respects, to Rule 52(b). See
    United States v. Tunstall, 
    72 M.J. 191
    , 197 n.7 (C.A.A.F. 2013); see also
    
    id. at 196
    (“To establish plain error, an appellant has the burden to
    demonstrate: (1) there was error; (2) the error was plain or obvious; and
    (3) the error materially prejudiced a substantial right of the accused.”).
    Given the CAAF’s interpretive gloss on the UCMJ and the Congress’s use
    of identical language in the 2009 MCA, the plain-error standard applies
    with the same statutory force here. See 10 U.S.C. § 948b(c) (“judicial
    construction and application” of UCMJ is “instructive” in interpreting
    2009 MCA); Sekhar v. United States, 
    133 S. Ct. 2720
    , 2724 (2013) (“[I]f a
    word is obviously transplanted from another legal source, whether the
    common law or other legislation, it brings the old soil with it.”); Bragdon
    v. Abbott, 
    524 U.S. 624
    , 645 (1998) (“When administrative and judicial
    interpretations have settled the meaning of an existing statutory provision,
    repetition of the same language in a new statute indicates, as a general
    matter, the intent to incorporate its administrative and judicial
    interpretations as well.”). The sources cited by my colleagues, Maj. Op. 9,
    are inapposite because they deal with review by the Service Courts of
    Criminal Appeals (CCAs) and CMCR, rather than the “much more
    limited” review of the CAAF and this Court. United States v. Claxton, 
    32 M.J. 159
    , 162 (CMA 1991); see also United States v. Powell, 
    49 M.J. 460
    ,
    463 (CAAF 1998) (“[CCAs] enjoy much broader appellate authority than
    civilian intermediate courts or our Court.”); United States v. Riley, 
    47 M.J. 276
    , 281 (CAAF 1997) (Gierke, J., concurring) (whereas “a [CCA] may
    take notice of errors of law, whether or not they were preserved by timely
    objection[, the CAAF] is constrained by the rules of waiver and the
    doctrine of plain error”). Indeed, the CAAF applies plain error even when
    the CCA reviewed a forfeited issue de novo. See, e.g., 
    Riley, 47 M.J. at 279
    –80 (majority op.); United States v. Goings, 
    72 M.J. 202
    , 203–04
    (CAAF 2013); 
    Tunstall, 72 M.J. at 193
    –96; United States v. Sweeney, 
    70 M.J. 296
    , 300 n.8, 304 (CAAF 2011).
    24
    Second, even if we could bypass the plain-error standard
    and review Bahlul’s Article III challenge de novo, I would
    follow the en banc court and decline to do so here.
    Preliminarily, my colleagues are wrong to suggest that the
    Supreme Court has “instructed that courts should excuse
    waivers of Article III structural claims.” Maj. Op. 8
    (emphasis added). Quite the contrary: it is a “rare” case in
    which we entertain a forfeited Article III argument. 
    Plaut, 514 U.S. at 232
    (quoting 
    Freytag, 501 U.S. at 878
    –79).
    Enforcing the traditional rules of waiver and forfeiture in the
    context of a Judicial Power Clause challenge, as in other
    contexts, serves the important interests of “increasing judicial
    efficiency and checking gamesmanship.” Sharif, No. 13-935,
    slip op. at 19. Moreover, several factors unique to Bahlul’s
    case make it a particularly inappropriate occasion to forgive
    his forfeiture.
    Most notably, my colleagues’ application of de novo
    review leads them to invalidate a provision of the 2006
    MCA—a duly enacted statute produced by a coequal branch.
    See 
    Rostker, 453 U.S. at 64
    (“[W]e must have due regard to
    the fact that this Court is not exercising a primary judgment
    but is sitting in judgment upon those who also have taken the
    oath to observe the Constitution and who have the
    responsibility for carrying on government.” (quotation marks
    omitted)). Examining the constitutionality of a statute is
    “legitimate only in the last resort, and as a necessity.”
    Chicago & G.T. Ry. Co. v. Wellman, 
    143 U.S. 339
    , 345
    (1892); see also Pearson v. Callahan, 
    555 U.S. 223
    , 241
    (2009) (courts should not “pass on questions of
    constitutionality unless such adjudication is unavoidable”
    (ellipsis omitted)); Lyng v. Nw. Indian Cemetery Protective
    Ass’n, 
    485 U.S. 439
    , 445 (1988) (“A fundamental and
    longstanding principle of judicial restraint requires that courts
    avoid reaching constitutional questions in advance of the
    25
    necessity of deciding them.”); N. Pipeline Constr. Co. v.
    Marathon Pipe Line Co., 
    458 U.S. 50
    , 90 (1982) (Rehnquist,
    J., concurring in judgment) (“Particularly in an area of
    constitutional law such as that of ‘Art. III Courts,’ with its
    frequently arcane distinctions and confusing precedents,
    rigorous adherence to the principle that this Court should
    decide no more of a constitutional question than is absolutely
    necessary accords with both our decided cases and with sound
    judicial policy.”). Restraint is particularly necessary here
    because our decision affects sensitive matters of national
    security, the consequences of which we have neither the
    information nor the perspicacity to predict. See Dep’t of Navy
    v. Egan, 
    484 U.S. 518
    , 530 (1988) (“courts traditionally have
    been reluctant to intrude . . . in military and national security
    affairs”); Latif v. Obama, 
    677 F.3d 1175
    , 1182 (D.C. Cir.
    2011) (“Both the Constitution and common sense support
    judicial modesty” in this area because “the judiciary has the
    least competence and the smallest constitutional footprint.”);
    Humanitarian Law 
    Project, 561 U.S. at 34
    (“[N]ational
    security and foreign policy concerns arise in connection with
    efforts to confront evolving threats in an area where
    information can be difficult to obtain and the impact of certain
    conduct difficult to assess.”).
    Further, excusing Bahlul’s forfeiture would not serve the
    interests of justice because he is concededly—and
    unapologetically—guilty of the charged offenses. Before the
    military commission, Bahlul candidly admitted to being a
    member of al Qaeda and engaging in all of the conduct
    attributed to him. See App. 190–94. Although he took one
    exception to the charge that he wore an explosive belt in order
    to protect bin Laden, he also noted, “[T]his doesn’t mean that
    if I was given an explosive belt and bin Laden . . . asked me to
    explode myself, that I wouldn’t do that. Of course, I would.”
    App. 194. He promised to continue “to fight America” if
    26
    released “until the last drop of blood.” App. 161–62; see also
    App. 161 (“I will not leave the American government
    anywhere on the face of this earth.”). As I explain later, infra
    pp. 38–42, Bahlul’s conduct was indisputably illegal under
    international law, whether or not he was charged with an
    offense the international community expressly recognizes.
    See 
    Marcus, 560 U.S. at 265
    (declining to exempt from plain-
    error review “errors that create a risk that a defendant will be
    convicted based exclusively on noncriminal conduct”). The
    notion that we should pardon Bahlul’s forfeiture is “so
    ludicrous as itself to compromise the public reputation of
    judicial proceedings.” 
    Puckett, 556 U.S. at 143
    ; see also
    
    Cotton, 535 U.S. at 634
    (“The real threat . . . to the ‘fairness,
    integrity, and public reputation of judicial proceedings’ would
    be if respondents, despite the overwhelming and
    uncontroverted evidence that they were [guilty], were to
    [benefit from] an error that was never objected to at trial.”).
    Finally, nothing prevented Bahlul from raising his
    constitutional challenges before the military commission. See
    Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 
    571 F.3d 69
    , 76 (D.C. Cir. 2009) (declining to forgive forfeiture
    because party “offer[ed] no justification for its delay”).
    Bahlul chose to “boycott” the proceedings in the hope it
    would “make the Muslims rise for [al Qaeda’s] cause.” App.
    156, 162. By rejecting the assistance of counsel and
    voluntarily absenting himself from the proceedings, forfeiture
    was “one of the perils [Bahlul] assume[d].” United States v.
    Vonn, 
    535 U.S. 55
    , 73 n.10 (2002). Bahlul had every
    opportunity to raise his challenges and he must accept the
    consequences of his deliberate failure to do so. See 
    Puckett, 556 U.S. at 136
    .
    Nor is this a case where applying the ordinary rules of
    forfeiture would forever prevent de novo review of the
    27
    constitutionality of the challenged provision. This concern
    may have been the principal motivation behind Schor. The
    law at issue in Schor permitted the CFTC to hear state-law
    counterclaims in reparations 
    proceedings. 478 U.S. at 837
    .
    But the CFTC’s jurisdiction was non-exclusive: parties
    remained free to bring reparations claims in federal court. 
    Id. at 836.
    Thus, parties who chose to litigate before the CFTC
    arguably waived their right to complain about the CFTC’s
    adjudication of state-law counterclaims. The same was true
    for the parties who raised the counterclaims—which were
    permissive, not compulsory, under the relevant law. 
    Id. at 837.
    As a result, the Supreme Court faced a dilemma. If the
    ordinary rules of waiver applied, no court could ever
    determine whether the CFTC’s adjudication of state-law
    counterclaims violated the Judicial Power Clause of Article
    III. This Catch-22 likely animated the Schor Court’s decision
    to excuse the waiver and explains why it thought that “the
    parties cannot be expected to protect” the “institutional
    interests” behind Article III. 
    Id. at 851.
    Here, that concern is
    plainly absent because every enemy combatant has the
    ability—and      incentive—to       challenge    the     military
    commission’s jurisdiction. See Bond v. United States, 
    131 S. Ct. 2355
    , 2365 (2011) (“[T]he claims of individuals—not
    of Government departments—have been the principal source
    of judicial decisions concerning separation of powers and
    checks and balances.”); Daniel J. Meltzer, Legislative Courts,
    Legislative Power, and the Constitution, 65 IND. L.J. 291, 304
    (1990) (“[T]he strategic interests of litigants substantially
    coincide with institutional interests protected by article III.”).
    We can indeed check “the power of the political branches to
    sideline the federal courts,” Maj. Op. 6, once an enemy
    combatant properly preserves the argument. See Sharif, No.
    13-935, slip op. at 19 (“the Article III right is substantially
    honored” notwithstanding courts “permitting waiver” in some
    cases).
    28
    In sum, I believe my colleagues err by parting ways with
    the en banc court and reviewing Bahlul’s Article III challenge
    de novo. Their decision to sidestep the plain-error standard
    reads too much into an obscure passage from Schor—a
    reading the Supreme Court disavowed in Plaut and overruled
    in Sharif—and ignores important distinctions between civil
    and criminal cases. Cf. Sharif, No. 13-935, dissenting op. at
    18 (Thomas, J.) (Article III issues “cannot—and should not—
    be resolved through a cursory reading of Schor, which itself is
    hardly a model of careful constitutional interpretation”).
    Applying the plain-error standard of review, I would
    easily reject Bahlul’s challenges to his conspiracy conviction.
    The plain-error standard is “difficult” to satisfy, “as it should
    be.” United States v. Dominguez Benitez, 
    542 U.S. 74
    , 83 n.9
    (2004). The forfeited error must be “so obvious” that “the
    trial judge and prosecutor were derelict in countenancing it.”
    
    Bolla, 346 F.3d at 1153
    . Here, the Congress’s decision to
    authorize the trial of conspiracy by military commission did
    not plainly transcend Article III, as the en banc court’s
    decision and my colleague’s concurrence impliedly recognize.
    See 
    Bahlul, 767 F.3d at 18
    –27; Concur. Op. 1–2. At the very
    least, “the lack of prior precedent . . . and the novelty of the
    issue presented militate against calling th[is] mistake plain
    error.” United States v. Blackwell, 
    694 F.2d 1325
    , 1342 (D.C.
    Cir. 1982); see also United States v. Terrell, 
    696 F.3d 1257
    ,
    1260 (D.C. Cir. 2012) (error not plain unless “a clear
    precedent in the Supreme Court or this circuit establishe[s] its
    erroneous character”). Thus, no matter one’s view of the
    merits, Bahlul cannot satisfy the “plainness” requirement of
    the plain-error standard. See 
    Olano, 507 U.S. at 732
    . Nor do
    I believe he can satisfy the “error” requirement, a topic I turn
    to now.
    29
    II. THE CONSTITUTIONAL CHALLENGES
    Bahlul argues that (i) the Congress—in codifying
    conspiracy to commit war crimes as an offense triable by
    military commission—exceeded its Article I powers and
    independently violated Article III; (ii) he was convicted based
    on his thoughts, beliefs and ideals in contravention of the First
    Amendment; and (iii) the 2006 MCA discriminates against
    him as an alien in violation of the equal protection component
    of the Fifth Amendment. The latter two arguments are
    frivolous on their face. See infra Part II.C. Bahlul’s Article I
    and Article III arguments, however, warrant a more thorough
    examination.
    As detailed below, the Congress acted within its Article I
    authority and did not contravene any personal or structural
    Article III principles in codifying conspiracy as an offense
    triable by military commission. Bahlul’s conspiracy trial and
    conviction were sanctioned by the President, 9 “pursuant to an
    express . . . authorization of Congress.” 
    Youngstown, 343 U.S. at 635
    (Jackson, J., concurring). Their constitutionality
    is therefore “supported by the strongest of presumptions and
    the widest latitude of judicial interpretation, and the burden of
    persuasion . . . rest[s] heavily upon” Bahlul to rebut it. 
    Id. at 637.
    Additionally:
    [T]he detention and trial of petitioner[]—ordered by
    the President in the declared exercise of his powers
    as Commander in Chief of the Army in time of war
    and of grave public danger—are not to be set aside
    9
    See 
    Bahlul, 767 F.3d at 6
    (“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.”).
    30
    by the courts without the clear conviction that they
    are in conflict with the Constitution . . . .
    Ex parte Quirin, 
    317 U.S. 1
    , 25 (1942) (emphasis added). 10
    A. ARTICLE I
    Bahlul begins with an uncontroversial premise: “law-of-
    war military commissions” can try only those “offenses
    against the law of war.” Pet’r’s Br. 12 (quoting 
    Bahlul, 767 F.3d at 7
    ). But he then embroiders that premise with
    needlework that produces naught but knots. First, he insists
    that the Congress’s power to codify a law-of-war offense
    derives exclusively from the Define and Punish Clause, U.S.
    CONST. art I, § 8, cl. 10. Second, he argues that the Define
    and Punish Clause allows the Congress to codify a law-of-war
    offense only if the international community has expressly
    agreed, element-by-element, that the offense is cognizable.
    And based on the Government’s concession that “conspiracy
    has not attained recognition at this time as an offense under
    customary international law,” Gov’t’s En Banc Br. at 34,
    Bahlul insists that “[t]he answer . . . is both plain and
    10
    In Hamdan, the plurality flipped Quirin’s “clear conviction” language,
    stating “[w]hen . . . neither the elements of the offense nor the range of
    permissible punishments is defined by statute or treaty, the precedent must
    be plain and unambiguous” because “[t]o demand any less would be to
    risk concentrating in military hands a degree of adjudicative and punitive
    power in excess of that contemplated either by statute or by the
    Constitution.” 
    Hamdan, 548 U.S. at 602
    (plurality). Justice Thomas, in
    dissent, correctly pointed out that “[t]his is a pure contrivance, and a bad
    one at that. It is contrary to the [clear conviction] presumption we
    acknowledged in Quirin.” 
    Id. at 690
    (Thomas, J., dissenting). In any
    event, the Quirin presumption, even by the Hamdan plurality’s lights,
    applies here because Bahlul’s offense is “defined by statute”—namely, the
    2006 MCA. See 
    id. at 602
    (plurality).
    31
    uncontested”: conspiracy falls outside the Congress’s Article I
    power. Pet’r’s Br. 24.
    Both of Bahlul’s embroidered premises are wrong. Even
    under the Define and Punish Clause alone, the Congress has
    the constitutional authority to codify conspiracy to commit
    war crimes by military commission. The international
    community does recognize that Bahlul violated “the
    principles of the law of nations, as they result from the usages
    established among civilized peoples, from the laws of
    humanity and the dictates of the public conscience,” 
    Quirin, 317 U.S. at 35
    , and the Congress has done nothing more than
    provide for “the limits or precise meaning” of those principles
    in authorizing the trial and sentencing by military commission
    for the violation thereof. 11 U.S. Op. Atty. Gen. 297, 299
    (1865) (then–Attorney General James Speed’s review of
    Lincoln conspirators’ trial).
    Bahlul’s other embroidered premise fares no better. The
    Congress does not derive its power to enumerate war crimes
    triable by military commission solely from the Define and
    Punish Clause. As the Supreme Court has recognized, the
    “capture, detention, and trial of unlawful combatants” are
    “ ‘important incidents of war,’ ” Hamdi v. Rumsfeld, 
    542 U.S. 507
    , 518 (2004) (plurality) (quoting 
    Quirin, 317 U.S. at 28
    (emphases added) (alteration omitted)), and the Congress’s
    power to conduct war, in all of its “incidents,” necessarily
    derives from its several Article I war powers mutatis
    mutandis. “[U]nlike the Define and Punish Clause, . . . the
    other Article I war powers clauses do not refer to international
    law and are not defined or constrained by international law.”
    
    Bahlul, 767 F.3d at 7
    3 (Kavanaugh, J., concurring/dissenting).
    32
    1. Define and Punish Clause
    The Define and Punish Clause declares that “[t]he
    Congress shall have Power . . . [t]o define and punish Piracies
    and Felonies committed on the high Seas, and Offences
    against the Law of Nations.” U.S. CONST . art. I, § 8, cl. 10.
    The power to “define” means that the Congress can
    “determine,” “decide” or “lay down definitely” offenses
    against the law of nations. Define, OXFORD ENGLISH
    DICTIONARY (2d ed. 1989). The word “define”—especially
    joined by the conjunction “and”—has teeth.
    At the Constitutional Convention, the debate over the
    Define and Punish Clause focused on whether the Congress
    should be given the power to do more than merely punish
    violations of the law of nations. An early draft of the Clause
    recited that the Congress could “define & punish piracies and
    felonies on the high seas” but could only “punish offenses
    agst. the law of nations.” Charles D. Siegal, Deference and
    Its Dangers: Congress’ Power to “Define . . . Offenses
    Against the Law of Nations”, 21 VAND. J. TRANSNAT’ L L.
    865, 876 (1988) (quoting 2 THE RECORDS OF THE FEDERAL
    CONVENTION OF 1787, at 614 (Farrand ed. 1937) (Madison’s
    notes) (emphasis added)).            Gouverneur Morris, a
    Pennsylvania delegate to the Constitutional Convention,
    “moved to strike out ‘punish’ before the words ‘offenses agst.
    the law of nations’ ” so that they would be “definable as well
    as punishable, by virtue of the preceding member of the
    sentence.” 
    Id. (emphasis in
    original). James Wilson, another
    Pennsylvania delegate, objected, arguing that “[t]o pretend to
    define the law of nations” would give the drafters a “look of
    arrogance” and “make us ridiculous.” 
    Id. (emphasis in
    original). In rejoinder, Morris explained that passive reliance
    on the international community was unworkable because “the
    law of nations [is] often too vague and deficient to be a rule.”
    33
    
    Id. (alterations omitted);
    see also THE FEDERALIST NO. 42, at
    266 (Madison) (explaining that “define” power was necessary
    to secure “certainty and uniformity”). Morris’s approach
    carried the day, establishing that the Congress was not
    reflexively to follow other nations’ lead in formulating
    offenses but instead to contribute to their formulation. See
    Peter Margulies, Defining, Punishing, and Membership in the
    Community of Nations: Material Support and Conspiracy
    Charges in Military Commissions, 36 FORDHAM INT’ L L.J. 1,
    27 (2013) (“Morris’s concern suggested that Congress would
    play a valuable role by not merely defining the law of nations
    in a mechanical fashion, but refining that occasionally turgid
    and murky stream of disparate sources.”); cf. 2 THE RECORDS
    OF THE FEDERAL CONVENTION OF 1787, at 316 (Morris)
    (“define . . . was said by others to be applicable to the creating
    of offences”).
    The Clause’s history and text suggest two principles
    helpful to our interpretive task. The first is that international
    law derives from “a myriad of sources” and is “vast and
    always changing.” 
    Margulies, supra, at 24
    ; see also 
    Bahlul, 767 F.3d at 54
    (Brown, J., concurring/dissenting). Justice
    Joseph Story, in 1820, recognized the varying nature of
    international law, observing that “[o]ffences . . . against the
    law of nations, cannot, with any accuracy, be said to be
    completely ascertained and defined in any public code
    recognised by the common consent of nations,” and therefore
    the Congress was given the “power to define.” United States
    v. Smith, 
    18 U.S. 153
    , 159 (1820). The observation has stood
    the test of time. As declared at the Nuremburg International
    Military Tribunal that tried the World War II war criminals:
    [I]nternational law is not the product of an
    international legislature, and . . . international
    agreements . . . have to deal with general principles
    34
    of law. . . . The law of war is to be found not only in
    treaties, but in the customs and practices of states
    which gradually obtained universal recognition, and
    from the general principles of justice applied by
    jurists and practised by military courts. This law is
    not static, but by continual adaptation follows the
    needs of a changing world.”
    1 INT’L MILITARY TRIBUNAL (IMT), TRIAL OF THE MAJOR
    WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY
    TRIBUNAL: N UREMBERG 221 (1947).
    The second principle is that “[t]he judiciary must give
    Congress extraordinary deference when it acts under its
    Define and Punish Clause powers.” 
    Bahlul, 767 F.3d at 59
    (Brown, J., concurring/dissenting). The Framers recognized
    that “[d]efining and enforcing the United States’ obligations
    under international law require the making of extremely
    sensitive policy decisions, decisions which will inevitably
    color our relationships with other nations.” 
    Finzer, 798 F.2d at 1458
    (emphasis added). “[S]uch decisions ‘are delicate,
    complex, and involve large elements of prophecy. . . . They
    are decisions of a kind for which the Judiciary has neither
    aptitude, facilities nor responsibility.’ ” 
    Id. at 14
    58–59
    (quoting Chi. & S. Air Lines, Inc. v. Waterman Steamship
    Corp., 
    333 U.S. 103
    , 111 (1948)). Indeed, “[j]udicial
    deference to such congressional definition is but a corollary to
    the grant to Congress of any Article I power.” Eldred v.
    Ashcroft, 
    537 U.S. 186
    , 218 (2003) (emphasis added)
    (quotation marks omitted).
    The Supreme Court has remained faithful to these
    principles in the few instances in which it has examined the
    prosecution of war crimes by military commission. The first
    instance was Quirin. There, the Court had no difficulty
    35
    concluding that the offenses charged against the Nazi
    saboteurs—espionage and sabotage—had “generally been
    accepted” as punishable by military commission under
    international law. 
    Quirin, 317 U.S. at 31
    –36. The offenses
    with which the saboteurs were charged, according to the
    Quirin Court, resulted from conduct “plainly” recognized as
    violative of the law of war. 
    Id. at 46.
    But the precedent my colleagues cannot reconcile with
    their Define and Punish Clause holding is Application of
    Yamashita, 
    327 U.S. 1
    (1946). At the time Japanese
    Commander Yamashita assumed command, General
    MacArthur’s troops were waging their assault on, and
    ultimate liberation of, the Philippines. Id.. at 31–32 (Murphy,
    J., dissenting). Although Allied victory was imminent,
    Yamashita’s army troops and naval forces “exterminate[d] a
    large part [more than 25,000] of the civilian population of
    Batangas Province.” 
    Id. at 14
    (majority op.). While the
    crimes committed by Yamashita’s soldiers and sailors were
    “recognized in international law as violations of the law of
    war,” Yamashita himself was not charged with participating
    in, or directing, their commission but instead with “fail[ing] to
    discharge his duty as commander to control . . . the members
    of his command.” 
    Id. at 13–14.
    The difficulty, then, was that
    international law did not expressly provide that a war-time
    commander could be prosecuted for failing to stop those
    under his command from committing war crimes. See 
    Siegal, supra, at 883
    (noting international law “dealt only
    tangentially with the issue” and “no provision dealt
    specifically with a commander’s obligation to control his
    troops”). Nevertheless, the Court affirmed Yamashita’s
    conviction and capital sentence.
    In so doing, the Court framed the question as follows:
    36
    [W]hether the law of war imposes on an army
    commander a duty to take such appropriate measures
    as are within his power to control the troops under
    his command for the prevention of the specified acts
    which are violations of the law of war and which are
    likely to attend the occupation of hostile territory by
    an uncontrolled soldiery, and whether he may be
    charged with personal responsibility for his failure to
    take such measures when violations result.
    
    Yamashita, 327 U.S. at 14
    –15. The Court looked to four
    international-law sources for an answer. Although none
    directly addressed whether a commanding officer’s failure to
    affirmatively prevent his troops from committing war crimes
    was itself a war crime, the Fourth Hague Convention of 1907
    established that armed forces could be considered lawful
    belligerents only if commanded by an individual “responsible
    for his subordinates.” 
    Id. at 15
    (quoting 36 Stat. 2295).
    Article 43 of the Annex to the Fourth Hague convention
    required a commander occupying enemy territory to “take all
    the measures in his power to restore, and ensure, as far as
    possible, public order and safety, while respecting, unless
    absolutely prevented, the laws in force in the country.” 
    Id. at 16
    (quoting 36 Stat. 2306) (emphases added). 11
    Notwithstanding the absence of international authority
    outlawing a commander’s failure to affirmatively prevent
    11
    The other two sources included Article 19 of the Tenth Hague
    Convention, which mandated that commanding officers of bombarding
    naval vessels must adhere to the principles of the Tenth Hague
    Convention, 
    Yamashita, 327 U.S. at 15
    (quoting 36 Stat. 2389), and
    Article 26 of the Geneva Red Cross Convention of 1929, which included
    rules related to wounded and sick in armies and made it the commander’s
    duty to provide “details of execution of” his duties under that Convention.
    
    Id. at 15
    –16 (quoting 47 Stat. 2074, 2092).
    37
    those under his command from committing war crimes, the
    Court was not deterred, finding it “evident that the conduct of
    military operations by troops whose excesses are unrestrained
    by the orders or efforts of their commander would almost
    certainly result in violations which it is the purpose of the law
    of war to 
    prevent.” 327 U.S. at 15
    (emphasis added). That
    “purpose . . . would largely be defeated if the commander . . .
    could with impunity neglect to take reasonable measures for
    their protection.” 
    Id. “Hence the
    law of war presupposes that
    its violation is to be avoided through the control of the
    operations of war by commanders who are to some extent
    responsible for their subordinates.” 
    Id. (emphasis added).
    The holding was attacked—molto agitato—by the two
    dissenting Justices, see 
    id. at 35
    (Murphy, J., dissenting)
    (noting that “[i]nternational law ma[de] no attempt to define
    the duties of a commander of an army under constant and
    overwhelming assault; nor [did] it impose liability under such
    circumstances”); 
    id. at 43
    (Rutledge, J., dissenting), on the
    same ground Bahlul today urges. Justice Murphy’s criticism
    was sweeping: “Nothing in all history or in international law”
    established that “such a charge against a fallen commander of
    a defeated force” constituted a war crime. 
    Id. at 35
    (Murphy,
    J., dissenting); see also Eugene Kontorovich, Discretion,
    Delegation, and Defining in the Constitution’s Law of Nations
    Clause, 106 NW. U. L. REV. 1675, 1736 (2012) (charge in
    Yamashita was upheld “with some general and not quite on-
    point citations to the Hague Conventions.”). 12
    12
    Contrary to my colleagues’ suggestion, I do not rely on Yamashita as
    precedent that speaks directly to “the type of deference owed to
    Congress.” Maj. Op. 27. Rather, in Yamashita, as in Quirin and Hamdan,
    the Court noted that the Congress did not “itself undertake[] to . . . define”
    the law of war. See infra p. 44. It is wrong, however, to suggest that
    38
    Mindful of the two principles discussed above—the
    inherently fluid nature of international law and the deference
    owed to the Congress’s power to define offenses against the
    law of nations—we should examine whether the international
    community permits Bahlul to be tried by military commission
    rather than requiring that the charge against him, as defined
    by the Congress, matches an offense expressly recognized by
    the law of nations as a war crime.
    Bahlul was convicted of “conspiracy to commit war
    crimes.” 
    Bahlul, 767 F.3d at 5
    .13 The 2006 MCA defines
    conspiracy as including any enemy combatant “who conspires
    to commit one or more” law-of-war offenses and “who
    knowingly does any overt act” in furtherance thereof. 10
    U.S.C. § 950v(28) (2006). As is common in the United
    States, the conspiracy offense set out in the 2006 MCA has
    two elements: an agreement to commit a war crime and an
    overt act in furtherance of that agreement. Cf., e.g., 18 U.S.C.
    § 371.
    In civil-law countries, conspiracy is instead viewed as a
    type of vicarious liability requiring proof of a completed
    offense. See 
    Margulies, supra, at 84
    . Inchoate conspiracy has
    Yamashita does not bear on the proper interpretation of the Define and
    Punish Clause. Far from it. Yamashita demonstrates that the Supreme
    Court, implicitly rejecting the rigid international-law veto my colleagues
    rely upon to vacate Bahlul’s conviction, recognizes that military
    commissions may constitutionally try offenses that, like inchoate
    conspiracy, reflect broad international norms. My colleagues make no
    attempt to meet Yamashita on its terms and, given Yamashita’s
    significance, the silence is deafening.
    13
    Bahlul was also convicted of material support and solicitation, which
    convictions were earlier vacated by the en banc court. See 
    Bahlul, 767 F.3d at 5
    , 29, 31.
    39
    been internationally recognized, however, in connection with
    certain war crimes. See 1 
    IMT, supra, at 224
    –26 (“common
    plan” to wage aggressive war); Updated Statute of the
    International Criminal Tribunal for the Former Yugoslavia,
    art. 4 (2009) (making punishable “conspiracy to commit
    genocide” as well as incitement or attempt to commit
    genocide and complicity in genocide); Statute of the
    International Criminal Tribunal for Rwanda, art. 2 (1994)
    (same); Convention on the Prevention and Punishment of the
    Crime of Genocide, art. 3 (1948) (same). Additionally,
    international law recognizes “joint criminal enterprise” (JCE).
    See Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals
    Chamber Judgment, ¶ 220 (Int’l Crim. Trib. for the Former
    Yugoslavia July 15, 1999). JCE has three essential elements:
    “a plurality of persons participating in the criminal plan,” “the
    existence of a common purpose which amounts to or involves
    the commission of a crime,” and “the accused’s participation
    in the common design.”           Giulia Bigi, Joint Criminal
    Enterprise in the Jurisprudence of the International Criminal
    Tribunal for the Former Yugoslavia and the Prosecution of
    Senior Political and Military Leaders: The Krajišnik Case, in
    14 MAX PLANCK YEARBOOK OF UNITED N ATIONS LAW 56 (A.
    von Bogdandy & R. Wolfrum eds. 2010).
    At one point, my colleagues suggest that the conspiracy
    offense set out in the 2006 MCA is inconsistent (as opposed
    to not recognized in haec verba) with international law. They
    note that “[t]he International Military Tribunal at Nuremberg
    considered and rejected conspiracy to commit war crimes as
    an international law of war offense.” Maj. Op. 24. The
    Nuremburg Tribunal, however, did recognize one inchoate
    conspiracy offense: “common plan” to wage aggressive war.
    1 
    IMT, supra, at 224
    –26. The Congress is aware of this
    history and could have legitimately concluded that the
    international community would agree that the September 11,
    40
    2001 attacks are sufficiently abhorrent to impose inchoate-
    conspiracy liability. Importantly, the “jurisdiction” of the
    military commission has traditionally been “adapted in each
    instance to the need that called it forth,” Madsen v. Kinsella,
    
    343 U.S. 341
    , 347–48 (1952),14 and international terrorism is
    “the global security challenge of the 21st Century.” 
    Bahlul, 767 F.3d at 6
    1 (Brown, J., concurring/dissenting).
    Furthermore, international law has developed since the
    Nuremberg trials of seventy years ago. International tribunals
    now prosecute JCE, which “functions in ways virtually
    identical to” inchoate conspiracy. Allison Marston Danner &
    Jenny S. Martinez, Guilty Associations: Joint Criminal
    Enterprise, Command Responsibility, and the Development of
    International Criminal Law, 93 C AL. L. REV . 75, 119 (2005).
    Thus, the hesitation of certain Allies at Nuremberg—that
    “overbroad application of the conspiracy principle may drag
    innocent people into the prosecution’s net,” TELFORD
    TAYLOR, THE ANATOMY OF THE N UREMBERG TRIALS: A
    PERSONAL MEMOIR 553 (1992)—appears to have been
    removed by the international community. Indeed, JCE allows
    the prosecution as war criminals of those who join together
    and participate in a criminal plan, which plan’s purpose
    “amounts to” the commission of a crime. 
    Bigi, supra, at 56
    ;
    see also 
    Tadic, supra
    , at ¶ 199. Bahlul joined with other al
    Qaeda members and participated 15 in the plan to attack our
    14
    My colleagues fault my reliance on Madsen because “that case
    involved a military government commission, not a law of war military
    commission.” Maj. Op. 31–32. But Madsen’s reliance on Yamashita, in
    which case the Supreme Court expressly decided a law-of-war military
    commission had jurisdiction over a law-of-war offense, makes plain that
    Madsen’s discussion of “the history of United States military
    commissions” encompasses Bahlul’s military commission. See 
    Madsen, 343 U.S. at 346
    .
    15
    The charges against Bahlul, on which he was convicted, alleged that he:
    41
    a.   traveled to Afghanistan with the purpose and intent of
    joining al Qaeda;
    b.   met with Saif al ‘Adl, the head of the al Qaeda Security
    Committee, as a step toward joining the al Qaeda
    organization;
    c.   underwent military-type training at an al Qaeda sponsored
    training camp then located in Afghanistan near Mes
    Aynak;
    d.   pledged fealty, or “bayat,” to the leader of al Qaeda,
    Usama bin Laden, joined al Qaeda, and provided personal
    services in support of al Qaeda;
    e.   prepared and assisted in the preparation of various
    propaganda products, including the video “The
    Destruction of the American Destroyer U.S.S. Cole,” to
    solicit material support for al Qaeda, to recruit and
    indoctrinate personnel to the organization and objectives
    of al Qaeda, and to solicit, incite and advise persons to
    commit Terrorism;
    f.   acted as personal secretary and media secretary of Usama
    bin Laden in support of al Qaeda;
    g.   arranged for Muhammed Atta, also known as Abu Abdul
    Rahman al Masri, and Ziad al Jarrah, also known as Abu
    al Qa’qa al Lubnani, to pledge fealty, or “bayat,” to
    Usama bin Laden;
    h.   prepared the propaganda declarations styled as martyr
    wills of Muhammed Atta and Ziad al Jarrah in preparation
    for the acts of terrorism perpetrated by the said
    Muhammed Atta, Ziad al Jarrah and others at various
    locations in the United States on September 11,2001;
    i.   at the direction of Usama bin Laden, researched the
    economic effect of the September 11, 2001 attacks on the
    United States, and provided the result of that research to
    Usama bin Laden;
    j.   operated and maintained data processing equipment and
    media communications equipment for the benefit of
    Usama bin Laden and other members of the al Qaeda
    leadership.
    Charge Sheet 2–3; Findings Worksheet 3–4.
    42
    country on September 11, 2001, which plan’s purpose—to
    murder civilians—“amounts to” the commission of a war
    crime.
    Discernible in this brief discussion is a common
    animating principle that, notwithstanding the differences in
    descriptive labels or elements, individuals who join together
    to further the commission of a war crime violate the law of
    war. Granted, the Congress did not include proof of a
    completed war crime as an element of the conspiracy offense
    included in the 2006 MCA. My colleagues characterize this
    omission as the creation of a new, purely “domestic” offense,
    as if it were made out of whole cloth. Maj. Op. 15. In my
    view, the Congress has taken a preexisting international law-
    of-war offense—conspiracy to commit war crimes—and
    eliminated one element. This it is constitutionally authorized
    to do within its “power to define” that Justice Story wrote
    about almost 200 years ago. 
    Smith, 18 U.S. at 159
    ; see also
    
    Bahlul, 767 F.3d at 5
    7 (Brown, J., concurring/dissenting).
    Nor does the Define and Punish Clause require the
    Congress to wait for the international community to catch up.
    The Yamashita Court did not play “Mother, may I” with
    established international law. 
    See 327 U.S. at 15
    –16. Instead,
    it used what it viewed as the international law of war’s
    “presuppos[ition]” and “purpose” in order to uphold
    Yamashita’s conviction of “failure to prevent” war crimes,
    which failure “result[ed] in” war crimes it was “the purpose of
    the law of war to prevent.” 
    Id. at 15
    –16 & n.3. Moreover, it
    upheld Yamashita’s war crimes convictions for omissions to
    act; even more cognizable as war crimes, then, are Bahlul’s
    commissions. 
    See supra
    pp. 40–41 n.15. And today, in our
    post-Erie world, we recognize that there is no “transcendental
    body of law outside of any particular State.” Erie R. Co. v.
    Tompkins, 
    304 U.S. 64
    , 79 (1938). Law is created, not
    43
    discovered, and it changes based on the actions of individual
    sovereigns. As one commentator puts it:
    [I]nternational law has grown more fluid and
    responsive to shifts in international consensus. The
    United States’ influence on international law has
    changed as well: the twentieth century saw the nation
    develop into a superpower, one that, when it trims its
    sails, can cause the winds of international law to
    blow in a new direction.
    Note, The Offences Clause After Sosa v. Alvarez-Machain,
    118 HARV. L. REV . 2378, 2390 (2005); see also Stewart Jay,
    The Status of the Law of Nations in Early American Law, 42
    VAND . L. REV . 819 (1989). In my view, the Congress can,
    consonant with the Define and Punish Clause, track somewhat
    ahead of the international community. The United States can
    be the standard bearer and take the reins in resolving difficult
    questions of international law related to the ongoing threat of
    international terrorism. See 
    Bahlul, 767 F.3d at 6
    1 (Brown, J.,
    concurring/dissenting) (“Perhaps the United States should be
    a leader in this area—a leader in international law
    commensurate with its status as a military leader in the war on
    terror—recognizing the offense of conspiracy to commit acts
    of terrorism.”). 16
    16
    Unlike my colleagues, see Maj. Op. 24, 26–27, I do not find the dicta
    from United States v. Furlong, 
    18 U.S. 184
    (1820), or United States v.
    Arjona, 
    120 U.S. 479
    (1887), on point. Furlong merely held that the
    Congress could not declare “murder to be piracy” because “there exist
    well-known distinctions between the crimes of piracy and murder” and
    “[t]hese are things so essentially different in their nature[] that not even
    the omnipotence of legislative power can confound or identify 
    them.” 18 U.S. at 196
    , 198. The same bright line cannot be drawn here because,
    unlike piracy—“a crime of a settled and determinate nature”—“[o]ffences
    44
    My colleagues’ narrow view of the Congress’s authority
    under the Define and Punish Clause, requiring that a law-of-
    war offense be already recognized by the international
    community on an element-by-element basis, follows, they
    believe, from Quirin and Hamdan. In my view, these two
    cases did not set the outer limits of the Congress’s authority
    because neither involved an exercise of the Congress’s power
    to “define” the law of nations. The military commissions in
    Hamdan and Quirin operated under section 821 (or its
    predecessor), giving military commissions jurisdiction of
    “offenses that by statute or by the law of war may be tried by
    military commissions.” 10 U.S.C. § 821 (emphasis added).
    By enacting this statute, however, the Congress did not “itself
    undertake[] to . . . define” the law of war but instead left its
    definition to the courts.       
    Quirin, 317 U.S. at 29
    –30.
    Accordingly, to determine whether an offense was covered by
    section 821, the Supreme Court had to survey the “common
    law” of war, 
    id. at 30
    ; 
    Hamdan, 548 U.S. at 593
    , which is
    necessarily limited to the offenses already recognized as
    triable by military commission. See 
    Hamdan, 548 U.S. at 595
    (plurality) (“The common law governing military
    commissions may be gleaned from past practice and what
    sparse legal precedent exists.”); see also Quirin, 317 U.S. at
    . . . against the law of nations, cannot, with any accuracy, be said to be
    completely ascertained and defined.” 
    Smith, 18 U.S. at 159
    , 161. Arjona,
    moreover, stands only for the proposition that a statute need not include
    the phrase “offense against the law of nations” to be a valid exercise of the
    Congress’s Define and Punish Clause 
    power. 120 U.S. at 488
    . It says
    nothing about the deference we owe the Congress when it exercises that
    power. Cf. 
    Boos, 485 U.S. at 329
    (deferring to “congressional judgment in
    this delicate area”); Ware v. Hylton, 
    3 U.S. 199
    , 224 (1796) (opinion of
    Chase, J.) (“If the right is conceded to be in Congress, it necessarily
    follows, that she is the judge of the exercise of the right, as to the extent,
    mode, and manner.”).
    45
    29 (looking to what “our courts” have recognized as
    “violations of the law of war”).
    In Hamdan, however, five Justices emphasized that their
    task would have been considerably easier had the Congress
    affirmatively defined conspiracy as an offense against the law
    of war. 
    See 548 U.S. at 601
    –02 (plurality) (noting Congress
    had not “positively identified ‘conspiracy’ as a war crime”);
    
    id. at 612
    (noting “the absence of specific congressional
    authorization”); 
    id. at 595
    (majority op.) (same); 
    id. at 636
    (Breyer, J., concurring) (“Nothing prevents the President from
    returning to Congress to seek the authority he believes
    necessary.”). As Justice Kennedy put it:
    I . . . see no need to address the validity of the
    conspiracy charge . . . . Congress may choose to
    provide further guidance in this area. Congress, not
    the Court, is the branch in the better position to
    undertake the “sensitive task of establishing a
    principle not inconsistent with the national interest or
    with international justice.”
    
    Id. at 655
    (Kennedy, J., concurring in part) (quoting Banco
    Nacional de Cuba v. Sabbatino, 
    376 U.S. 398
    , 428 (1964)).
    Heeding this call, the Congress provided such guidance
    by enacting the 2006 MCA, which expressly enumerates
    conspiracy as a law-of-war offense triable by military
    commission. See 10 U.S.C. § 950v(28) (2006). Inexplicably,
    my colleagues suggest that the Congress was not exercising
    its power to “define” the law of nations in enacting the
    challenged provision. Maj. Op. 26; Concur. Op. 4. The en
    banc court, however, necessarily recognized that the Congress
    was exercising its power to “define” in the 2006 enactment.
    See 
    Bahlul, 767 F.3d at 13
    (“[T]he 2006 MCA . . . provides
    the President the very power he sought to exercise in
    46
    Hamdan—the power to try the 9/11 perpetrators for
    conspiracy . . . by military commission . . . . We must heed
    this inter-branch dialogue.” (citations omitted)); 
    id. at 26
    (“[T]he elements of the conspiracy charge were not defined
    by statute in Hamdan . . . . Here, the Congress has positively
    identified conspiracy as a war crime.” (citation omitted)).
    Moreover, the legislative history accompanying the 2006
    MCA makes plain that the Congress viewed itself as acting
    pursuant to its authority under the Define and Punish
    Clause. 17 My colleagues rely on the Government’s failure to
    argue this point but we “retain[] the independent power to
    identify and apply the proper construction of governing law.”
    U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,
    
    508 U.S. 439
    , 446 (1993). And, to the extent we consider the
    parties’ characterizations of what the Congress did, Bahlul
    himself concedes that the Congress “codified a conspiracy
    offense . . . in a self-conscious exercise of its power under the
    Define & Punish Clause.” Pet’r’s Br. 22; see also 
    id. at 21–
    22 (“The Define & Punish Clause is the authority . . . to which
    Congress looked when enacting the 2006 Act.” (citing H.R.
    REP. NO. 109-664, pt. 1, at 24)); 
    id. at 25
    (“Congress enacted
    17
    See, e.g., H.R. REP. NO. 109-664, pt. 1, at 24 (2006) (“The offenses
    defined here . . . reflect the codification of the law of war into the United
    States Code pursuant to Congress’s constitutional authority to ‘Define and
    Punish * * * Offences against the Law of Nations.’ ”); 
    id., pt. 2,
    at 15
    (“[T]he Committee finds the authority for this legislation in article 1,
    section 8 of the Constitution, including clauses 10 [the Define and Punish
    Clause], 11, 14 and 18.”); S. 3930, 109th Cong. § 102 (2006) (“Congress
    makes the following findings: (1) The Constitution of the United States
    grants to Congress the power ‘To define and punish . . . Offenses against
    the Law of Nations’, as well as the power ‘To declare War . . . To raise
    and support Armies . . .  To provide and maintain a Navy’. . . . It is
    in the national interest for Congress to exercise its authority under the
    Constitution to enact legislation authorizing and regulating the use of
    military commissions to try and punish violations of the law of war.”).
    47
    [the challenged provision] in explicit reliance on its power
    under the Define & Punish Clause.”). Contrary to my
    colleagues’ suggestion, Maj. Op. 26, the Congress does not
    need to incant any magic words to invoke its “define” power.
    See 
    Arjona, 120 U.S. at 488
    (if “[a] statute defines the
    offense, . . . there is no more need of declaring in the statute
    that it is . . . an offense [against the law of nations] than there
    would be in any other criminal statute to declare that it was
    enacted to carry into execution any other particular power”).
    Bahlul’s conspiracy conviction thus stands on firmer
    constitutional footing than Hamdan’s, Quirin’s or even
    Yamashita’s convictions. The Congress has in fact exercised
    its Article I power to “define” conspiracy as an offense
    against the law of nations. The difference between this case
    and Hamdan is the difference between Justice Jackson’s first
    and third categories, respectively. See 
    Youngstown, 343 U.S. at 635
    –38 (Jackson, J., concurring). The Congress has used
    its expertise in national security and military affairs, see
    
    Finzer, 798 F.2d at 1458
    –59, which warrants the Judiciary’s
    utmost deference. Unlike my colleagues, I would not treat
    this case as another Quirin or Hamdan. Every Justice in
    Hamdan who ruled against the Government necessarily
    recognized that a case like Bahlul’s would present a much
    easier question. Here, the Congress and the President have
    acted in concert, cloaking their actions “with all the attributes
    of sovereignty.” 
    Youngstown, 343 U.S. at 635
    n.2 (Jackson,
    J., concurring). We should “hesitate long before limiting or
    embarrassing such powers,” 
    id. (emphasis omitted)—much
    longer and harder than my colleagues have hesitated here.
    Accordingly, the Congress’s decision to define
    conspiracy to commit war crimes as an offense against the
    law of war triable by military commission is consistent with
    international law—even if not a perfect match. Add to that
    48
    the elevated level of deference we give the Congress in
    exercising its Article I powers and, to me, the inclusion of
    conspiracy to commit war crimes in the 2006 MCA is plainly
    within its authority under the Define and Punish Clause.
    2. Necessary and Proper Clause
    Next, the Necessary and Proper Clause augments the
    Congress’s already ample Define and Punish Clause authority
    to codify conspiracy as a law-of-war offense triable by
    military commission. The Supreme Court has made plain
    that, “in determining whether the Necessary and Proper
    Clause grants Congress the legislative authority to enact a
    particular federal statute,” courts “look to see whether the
    statute constitutes a means that is rationally related to the
    implementation of a constitutionally enumerated power.”
    United States v. Comstock, 
    560 U.S. 126
    , 134 (2010); see also
    Gonzales v. Raich, 54
    5 U.S. 1
    , 22 (2005) (statute falls within
    Necessary and Proper Clause if “Congress had a rational
    basis” for concluding statute implements another enumerated
    Article I power). The constitutionally enumerated power
    here—the Define and Punish Clause—allows the Congress, at
    a minimum, to codify Bahlul’s object offenses (e.g., murder
    in violation of the law of war) as war crimes triable by
    military commission. See 
    Quirin, 317 U.S. at 29
    . Trying by
    military commission those who conspire to commit war
    crimes is “convenient,” “useful,” and “ ‘conducive’ to the . . .
    ‘beneficial exercise’ ” of the Congress’s power to authorize
    the trial of substantive war crimes and doing so is abundantly
    rational. 
    Comstock, 560 U.S. at 133
    –34 (quoting M’Culloch
    v. Maryland, 
    17 U.S. 316
    , 413, 418 (1819)).
    In Comstock, the Supreme Court held that the Necessary
    and Proper Clause granted the Congress the authority to enact
    a civil-commitment statute allowing the Department of Justice
    49
    to detain certain federal prisoners beyond their release date.
    
    Id. at 129–30.
    It based its holding on “five considerations”:
    (1) the Necessary and Proper Clause “grants Congress broad
    authority to enact federal legislation,” 
    id. at 13
    3; (2) the civil-
    commitment statute was a “modest addition” to preexisting
    law, 
    id. at 13
    7; (3) the Congress had sound reasons for the
    statute and the statute was “reasonably adapted” thereto, 
    id. at 14
    2–43; (4) the statute “properly accounts for state interests,”
    
    id. at 14
    3; and (5) the connection between the statute and an
    enumerated Article I power was “not too attenuated” and the
    statute was not “too sweeping in its scope,” 
    id. at 14
    6. Here,
    each of these considerations indicates that the Congress acted
    within its constitutional authority.
    First, as Comstock emphasized, the Congress’s power
    under the Necessary and Proper Clause is broad. See 
    id. at 13
    3; see also Armstrong v. Exceptional Child Center, Inc.,
    
    135 S. Ct. 1378
    , 1383 (2015) (Necessary and Proper Clause
    “vests Congress with broad discretion over the manner of
    implementing its enumerated powers”).           Indeed, in
    M’Culloch, “Chief Justice Marshall emphasized that the word
    ‘necessary’ does not mean ‘absolutely necessary.’ ”
    
    Comstock, 560 U.S. at 134
    (quoting 
    M’Culloch, 17 U.S. at 413
    –15 (emphasis omitted)). Rather, he wrote:
    Let the end be legitimate, let it be within the scope of
    the constitution, and all means which are
    appropriate, which are plainly adapted to that end,
    which are not prohibited, but consist with the letter
    and spirit of the constitution, are constitutional.
    
    M’Culloch, 17 U.S. at 421
    . For this reason, courts deciding
    whether the Necessary and Proper Clause supports a piece of
    legislation ask only “whether the statute constitutes a means
    that is rationally related to the implementation of a
    50
    constitutionally enumerated power.” 
    Comstock, 560 U.S. at 134
    ; see also Sabri v. United States, 
    541 U.S. 600
    , 605 (2004)
    (using “means-ends rationality” to describe necessary
    relationship).     Moreover, the “choice of means” lies
    “primarily” with “the judgment of Congress” and “the degree
    of their necessity, the extent to which they conduce to the end,
    the closeness of the relationship between the means adopted,
    and the end to be attained, are matters for congressional
    determination alone.” Burroughs v. United States, 
    290 U.S. 534
    , 547–48 (1934).
    Second, the Congress, through the 2006 MCA, legislated
    in an area that is exclusively federal, not simply one with a
    “long history of federal involvement.” 
    Comstock, 560 U.S. at 149
    . The Supreme Court has long held that “the government
    of the United States has been vested exclusively with the
    power of representing the nation in all its intercourse with
    foreign countries,” 
    Arjona, 120 U.S. at 483
    , and that states are
    “expressly prohibited from entering into any ‘treaty, alliance,
    or confederation.’ ” 
    Id. (quoting U.S.
    CONST . art. I, § 10, cl.
    1). In fact, the Define and Punish Clause itself recognizes
    that “[t]he national government is . . . responsible to foreign
    nations for all violations by the United States of their
    international obligations.” 
    Id. Third, the
    Congress has indisputably sound reasons for
    codifying conspiracy as a war crime triable by military
    commission.       As the Supreme Court has explained,
    “[c]oncerted action both increases the likelihood that the
    criminal object will be successfully attained and decreases the
    probability that the individuals involved will depart from their
    path of criminality.” Callanan v. United States, 
    364 U.S. 587
    ,
    593 (1961). Bahlul himself recognized this fact at his
    military-commission trial. He stated that he had “asked bin
    Laden for a martyrdom operation, a suicide operation; but
    51
    [bin Laden] refused.” App. 194. He was instead put in
    charge of propaganda because, according to bin Laden,
    “recruiting people through media gets you more people than
    suicidal attacks.” 
    Id. Furthermore, there
    is no principled
    reason to prevent the United States—or any member of the
    international community, for that matter—from subjecting to
    military justice those enemy combatants who plot, but fail, to
    commit war crimes.          Once conspirators enter into an
    agreement, their “[c]riminal intent has crystallized, and the
    likelihood of actual, fulfilled commission warrants preventive
    action.” United States v. Feola, 
    420 U.S. 671
    , 694 (1975)
    (emphasis added).
    Fourth, for the reasons discussed in the second 
    point, supra
    , the challenged provision does not infringe on any state
    interest.
    Fifth, the link between the Congress’s decision to
    authorize trial of conspiracy to commit war crimes by military
    commission and its undisputed power to authorize trial of
    other war crimes by military commission is not attenuated.
    Indeed, under the challenged provision, an enemy combatant
    tried by military commission can be convicted of conspiracy
    only if the Government proves that he agreed to commit, and
    took acts in furtherance of committing, a war crime. There is
    no question that the object offenses underlying Bahlul’s
    conspiracy conviction—which the Government proved or
    Bahlul conceded—violated the international law of war. See,
    e.g., Findings Worksheet 2 (Bahlul convicted of conspiring to
    “murder . . . protected persons”); Rome Statute of the
    International Criminal Court, art. 8, July 17, 1998, 2187
    U.N.T.S. 90 (murder of civilians constitutes international war
    crime). Nor is the conspiracy provision of the 2006 MCA
    sweeping in scope.
    52
    Bahlul makes no attempt to distinguish Comstock,
    arguing instead that United States ex rel. Toth v. Quarles, 
    350 U.S. 11
    (1955), forecloses application of the Necessary and
    Proper Clause. But Toth, a case involving the court-martial
    trial of an Army veteran who had been honorably discharged,
    
    id. at 13
    , is beyond inapposite. In Toth, the Supreme Court
    rejected an attempt to use the Necessary and Proper Clause to
    supplement the Congress’s power “[t]o make Rules for the
    Government and Regulation of the land and naval Forces.”
    
    Id. at 14
    (quoting U.S. CONST . art. I, § 8, cl. 14). The Court
    declared that the Make Rules Clause “authorizes Congress to
    subject persons actually in the armed service to trial by court-
    martial for military and naval offenses.” 
    Id. (emphasis added).
    It gave two reasons that the Congress had exceeded
    its Article I authority by trying Toth, by then a civilian, via
    court-martial: (1) the Necessary and Proper Clause did not
    empower the Congress “to deprive people of trials under Bill
    of Rights safeguards”; and (2) it was “impossible to think that
    the discipline of the Army [was] going to be disrupted, its
    morale impaired, or its orderly processes disturbed, by giving
    exservicemen the benefit of a civilian court trial when they
    [were] actually civilians.” 
    Id. at 22.
    Neither of these concerns exists here. There is no risk
    that a countervailing constitutional right supersedes the
    Necessary and Proper Clause because Bahlul—an alien
    enemy combatant outside the sovereign United States—is not
    protected by the Bill of Rights. See infra Part II.B.2. In
    addition, the Supreme Court’s holding that Toth could not be
    tried by court-martial was, by necessary implication, a
    determination that the trial of a citizen by court-martial was
    not “rationally related” to the Congress’s authority under the
    53
    Make Rules Clause. 
    Comstock, 560 U.S. at 134
    . 18 The Army
    would gain nothing in discipline or morale by court-
    martialing an individual who was no longer a service member.
    See 
    Toth, 350 U.S. at 22
    . As just discussed, supra pp. 50–51,
    the Congress’s inclusion of conspiracy to commit war crimes
    as an offense triable by military commission is rationally
    related to its unquestioned authority to make war crimes
    themselves triable by military commission. And trying
    conspiracy by military commission is not inconsistent with
    international law. Cf. 
    M’Culloch, 17 U.S. at 421
    . Conspiracy
    to commit war crimes is not a purely “domestic” offense,
    Maj. Op. 15, but instead is in accord with the international
    community’s agreement that those who conspire to commit
    war crimes can be punished as war criminals. 
    See supra
    Part
    II.A.1.
    To the extent there is any doubt that the Congress has the
    power to “define” conspiracy as a war crime and “punish” it
    by military commission, the Necessary and Proper Clause is
    more than sufficient to remove it.
    3. Broader War Powers
    “[O]ut of seventeen specific paragraphs of congressional
    power, eight of them are devoted in whole or in part to
    specification of powers connected with warfare.” Johnson v.
    Eisentrager, 
    339 U.S. 763
    , 788 (1950). Specifically, the
    Congress has the power:
    18
    My colleagues’ reliance on Kinsella v. United States ex rel. Singleton,
    
    361 U.S. 234
    (1960), and Reid v. Covert, 
    354 U.S. 1
    (1957) (plurality),
    suffers from the same deficiency as Bahlul’s reliance on Toth. The only
    difference is that in Singleton and Reid, the subjects of the attempted
    courts martial were the civilian spouses of service members, not ex-
    servicemen. See 
    Singleton, 361 U.S. at 235
    ; 
    Reid, 354 U.S. at 3
    .
    54
    •   “[T]o . . . provide for the common Defence and
    general Welfare of the United States,” U.S.
    CONST. art. I, § 8, cl. 1;
    •   “To define and punish Piracies and Felonies
    committed on the high Seas, and Offences
    against the Law of Nations,” 
    id. cl. 10;
        •   “To declare War, grant Letters of Marque and
    Reprisal, and make Rules concerning Captures
    on Land and Water,” 
    id. cl. 11;
        •   “To raise and support Armies,” 
    id. cl. 12;
        •   “To provide and maintain a Navy,” 
    id. cl. 13;
        •   “To make Rules for the Government and
    Regulation of the land and naval Forces,” 
    id. cl. 14;
        •   “To provide for calling forth the Militia to
    execute the Laws of the Union, suppress
    Insurrections and repel Invasions,” 
    id. cl. 15;
            and
    •   “To provide for organizing, arming, and
    disciplining, the Militia, and for governing such
    Part of them as may be employed in the Service
    of the United States, reserving to the States
    respectively, the Appointment of the Officers,
    and the Authority of training the Militia
    according to the discipline prescribed by
    Congress,” 
    id. cl. 16.
    Supreme Court precedent, Colonel Winthrop’s influential
    treatise and our constitutional history all support the
    proposition that the Congress’s authority to specify law-of-
    war offenses triable by military commission is also supported
    by its broader war powers.
    55
    a. Supreme Court Precedent
    The Supreme Court has recognized the breadth of the
    Congress’s war powers, both individually and in combination.
    See, e.g., 
    Rostker, 453 U.S. at 65
    (“The constitutional power
    of Congress to raise and support armies and to make all laws
    necessary and proper to that end is broad and sweeping.”);
    Wayte v. United States, 
    470 U.S. 598
    , 612 (1985) (“Unless a
    society has the capability and will to defend itself from the
    aggressions of others, constitutional protections of any sort
    have little meaning. Recognizing this fact, the Framers listed
    ‘provid[ing] for the common defence’ [in the Preamble] as a
    motivating purpose for the Constitution . . . .”).        The
    Congress’s war powers include the creation and use of
    military commissions. “Since our nation’s earliest days, such
    commissions,” also called “our commonlaw war courts,”
    “have been constitutionally recognized agencies for meeting
    many urgent governmental responsibilities related to war.”
    
    Madsen, 343 U.S. at 346
    –47. Historically, “their procedure”
    and “their jurisdiction” have been “adapted in each instance
    to the need that called [them] forth.” 
    Id. at 347–48
    (citing
    
    Yamashita, 327 U.S. at 18
    –23 (emphasis added)).
    The Supreme Court has never expressly held that the
    Congress’s power to provide for law-of-war military
    commissions stems from the Define and Punish Clause alone.
    Instead, its limited jurisprudence indicates that the combined
    effect of the Congress’s war powers allows for military-
    commission trials as their need arises. A century before
    Madsen, four Justices opined that “the power of Congress . . .
    to authorize trials for crimes against the security and safety of
    the national forces, may be derived from its constitutional
    authority to raise and support armies and to declare war.” Ex
    parte Milligan, 
    71 U.S. 2
    , 142 (1866) (Chase, C.J., concurring
    in judgment).
    56
    Moreover, nothing in Quirin suggests that the Supreme
    Court intended to limit the Congress’s war powers to the
    Define and Punish Clause in setting the jurisdiction of
    military commissions. In fact, the Quirin Court took pains to
    emphasize that “[w]e have no occasion now to define with
    meticulous care the ultimate boundaries of the jurisdiction of
    military tribunals to try persons according to the law of 
    war.” 317 U.S. at 45
    –46. Quirin held only, on the facts of that case,
    that the Congress’s power under the Define and Punish
    Clause provided sufficient authority to support the charges
    made against the Nazi saboteurs. See 
    id. at 46
    (“We hold only
    that those particular acts constitute an offense against the law
    of war which the Constitution authorizes to be tried by
    military commission.” (emphasis added)). Quirin did not
    purport to read out the Congress’s other war powers; in fact, it
    expressly recognized and listed them. See 
    id. at 26
    . The
    Quirin Court also observed, consistent with Chief Justice
    Chase’s words nearly a century earlier, 
    Milligan, 71 U.S. at 142
    (Chase, C.J., concurring in judgment), that “[a]n
    important incident to the conduct of war is the adoption of
    measures by the military command . . . 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.” 
    Quirin, 317 U.S. at 28
    –29 (emphasis added).
    To the extent Quirin’s scope may be debatable, the
    Yamashita Court made plain that Quirin does not limit the
    Congress’s power to codify law-of-war offenses to the Define
    and Punish Clause. Although it recognized Quirin’s holding
    that the Define and Punish Clause provided the Congress with
    sufficient power to authorize the trial of the Nazi saboteurs by
    military commission, 
    Yamashita, 327 U.S. at 7
    , the Yamashita
    Court reiterated that military-commission trials are “[a]n
    important incident to the conduct of war.” 
    Id. at 11
    (citing
    
    Quirin, 317 U.S. at 28
    ). The Court continued:
    57
    The trial and punishment of enemy combatants who
    have committed violations of the law of war is thus
    not only a part of the conduct of war operating as a
    preventive measure against such violations, but is an
    exercise of the authority sanctioned by Congress to
    administer the system of military justice recognized
    by the law of war. That sanction is without
    qualification as to the exercise of this authority so
    long as a state of war exists—from its declaration
    until peace is proclaimed. The war power, from
    which the commission derives its existence, is not
    limited to victories in the field, but carries with it the
    inherent power to guard against the immediate
    renewal of the conflict, and to remedy, at least in
    ways Congress has recognized, the evils which the
    military operations have produced.
    
    Id. at 11
    –12 (emphases added) (citations omitted); see also
    
    Toth, 350 U.S. at 13
    –14 & n.4 (describing Yamashita as
    holding about Congress’s war powers); Howard S. Fredman,
    Comment, The Offenses Clause: Congress’ International
    Penal Power, 8 COLUM. J. TRANSNAT’ L L. 279, 303 (1969)
    (Yamashita “put the military prosecution of war criminals
    squarely within the war powers of Congress”).
    Yamashita’s words are not mere rhetoric. To determine
    whether Yamashita had committed a war crime triable by
    military commission, the Supreme Court looked not only to
    international sources but also to the practice of “our own
    military tribunals” to conclude that Yamashita’s dereliction
    could be “penalized” as a violation of the law of war.
    
    Yamashita, 327 U.S. at 16
    (emphases added). In other words,
    the Yamashita Court cited domestic law to supplement, not
    merely “limit[],” the law of war. Cf. Maj. Op. 12. Justice
    Murphy, in dissent, likewise examined whether “the laws of
    58
    war heretofore recognized by this nation . . . impute[d]
    responsibility to a fallen commander for excesses committed
    by his disorganized troops while under attack.” 
    Yamashita, 327 U.S. at 37
    (Murphy, J., dissenting) (emphasis added).
    Thus, both the Yamashita majority and dissent agreed that, in
    the absence of international agreement that an offense
    constituted a violation of the law of war, “the principal
    offenses under the laws of war recognized by the United
    States” could also constitute cognizable war crimes triable by
    military tribunal. 
    Id. (emphasis added).
    The shift from Quirin’s reliance on the Define and Punish
    Clause to Yamashita’s recognition that military-commission
    jurisdiction of law-of-war offenses—including law-of-war
    offenses denominated as such by the Congress—derives from
    the broader war powers occurred in just four years, from 1942
    to 1946. And it was that shift that led, six years later, to the
    Supreme Court’s conclusion that the “jurisdiction” of military
    commissions had traditionally been, and should be, “adapted
    in each instance to the need that called it forth.” 
    Madsen, 343 U.S. at 347
    –48 (citing 
    Yamashita, 327 U.S. at 18
    –23). There
    can be no doubt that the war on terror, begun in response to
    the September 11, 2001 attacks, constitutes the next “need” to
    which the jurisdiction of law-of-war military tribunals must
    adapt. 
    Id. Recognizing the
    adaptive nature of the Congress’s
    war powers, the Supreme Court has, in a variety of contexts,
    referred to the broad war powers of both political branches in
    conducting this ever-evolving war. 19
    19
    See, e.g., 
    Hamdan, 548 U.S. at 591
    (listing broader war powers);
    
    Hamdi, 542 U.S. at 518
    (plurality) (“The capture and detention of lawful
    combatants and the capture, detention, and trial of unlawful combatants,
    by ‘universal agreement and practice,’ are ‘important incident[s] of war.’ ”
    (quoting 
    Quirin, 317 U.S. at 28
    , 30)); accord 
    id. at 579
    (Thomas, J.,
    59
    I believe my colleagues have incautiously interfered with
    the reasoned decisions of the political branches based solely
    on Quirin, a case in which the Supreme Court affirmatively
    failed to draw the line they today draw. 
    See 317 U.S. at 45
    –
    46. Because they apparently see Quirin as the alpha and
    omega of the Congress’s Article I war powers, they conclude
    that Bahlul’s conspiracy conviction cannot stand. But
    Yamashita belies their conclusion that Quirin set the
    “contours” of law-of-war jurisdiction, Maj. Op. 11, that those
    contours are defined exclusively by express international
    agreement, Maj. Op. 15–16, and that “[t]he Supreme Court
    has adhered to Quirin’s understanding of the meaning of the
    ‘law of war’ for over seventy years.” Maj. Op. 13.
    b. Winthrop’s Treatise
    As discussed, neither the plain text of the Congress’s
    Article I war powers nor Supreme Court precedent examining
    the contours of law-of-war military-commission jurisdiction
    supports the “clear conviction” needed to invalidate Bahlul’s
    conspiracy charge. 
    Quirin, 317 U.S. at 25
    . Secondary
    authority also weighs against him. Almost one hundred years
    ago, Colonel William Winthrop, considered the “Blackstone
    dissenting) (“The Executive Branch, acting pursuant to the powers vested
    in the President by the Constitution and with explicit congressional
    approval, has determined that Yaser Hamdi is an enemy combatant and
    should be detained. This detention falls squarely within the Federal
    Government’s war powers, and we lack the expertise and capacity to
    second-guess that decision.”); Rasul v. Bush, 
    542 U.S. 466
    , 487 (2004)
    (Kennedy, J., concurring in judgment) (“The decision in Eisentrager
    indicates that there is a realm of political authority over military affairs
    where the judicial power may not enter. The existence of this realm
    acknowledges the power of the President as Commander in Chief, and the
    joint role of the President and the Congress, in the conduct of military
    affairs.”).
    60
    of Military Law,” 
    Reid, 354 U.S. at 19
    n.38 (plurality),
    authored the definitive treatise on these matters.      In his
    chapter “Authority and Occasion for the Military
    Commission,” Winthrop made plain that, “in general, it is
    those provisions of the Constitution which empower Congress
    to ‘declare war’ and ‘raise armies,’ and which, in authorizing
    the initiation of war, authorize the employment of all
    necessary and proper agencies for its due prosecution, from
    which th[e military] tribunal derives its original sanction.”
    WILLIAM WINTHROP, MILITARY LAW & PRECEDENTS 831
    (1920) (emphasis in original). According to Winthrop, a
    military tribunal “is simply an instrumentality for the more
    efficient execution of the war powers vested in Congress and
    the power vested in the President as Commander-in-chief in
    war.” 
    Id. (emphasis added).
    Notwithstanding his reference to the “Law of War” as
    “intended [to refer to] that branch of International Law which
    prescribes the rights and obligations of belligerents,” he
    further observed that the “Law of War in this country is not a
    formal written code, but consists mainly of general rules
    derived from International Law, supplemented by acts and
    orders of the military power and a few legislative provisions.”
    
    Id. at 773
    (first emphasis in original). Winthrop, it appears,
    had no issue with Congressional “supplementation” of law-of-
    war offenses proscribed by international agreement. In his
    treatise, Winthrop listed 20 the “offences in violation of the
    20
    
    WINTHROP, supra, at 839
    –40:
    [B]reaches of the law of non-intercourse with the enemy, such
    as running or attempting to run a blockade; unauthorized
    contracting, trading or dealing with, enemies, or furnishing
    them with money, arms, provisions, medicines, &c.; conveying
    to or from them dispatches, letters, or other communications,
    passing the lines for any purpose without a permit, or coming
    61
    laws and usages of war” and described them as “those
    principally, in the experience of our wars,” that have been
    “cognizable by military tribunals.” 
    WINTHROP, supra, at 839
    (emphasis added). The most natural reading of Winthrop’s
    expertise—a reading also consistent with Article I’s multiple
    war powers and the Supreme Court’s analyses in both
    
    Yamashita, 327 U.S. at 11
    –12, and 
    Madsen, 343 U.S. at 346
    –
    48—is that the Define and Punish Clause is one grant of
    power to the Congress to determine the law-of-war offenses
    triable by military commission but it is not the exclusive one.
    back after being sent through the lines and ordered not to
    return; aiding the enemy by harboring his spies, emissaries,
    &c.; assisting his people or friends to cross the lines into his
    country, acting as guide to his troops; aiding the escape of his
    soldiers held as prisoners of war, secretly recruiting for his
    army, negotiating and circulating his currency or securities—as
    counterfeit notes or bonds in the late war, hostile or disloyal
    acts, or publications or declarations calculated to excite
    opposition to the federal government or sympathy with the
    enemy, &c.; engaging in illegal warfare as a guerilla, or by the
    deliberate burning, or other destruction of boats, trains, bridges,
    buildings, &c.; acting as a spy, taking life or obtaining any
    advantage by means of treachery; abuse or violation of a flag of
    truce; violation of a parole or of an oath of allegiance or
    amnesty; breach of bond given for loyal behavior, good
    conduct, &c.; resistance to the constituted military authority,
    bribing or attempting to bribe officers or soldiers or the
    constituted civil officials; kidnapping or returning persons to
    slavery in disregard of the President’s proclamation of freedom
    to the slaves, of January 1, 1863.
    Elsewhere, Winthrop included conspiracy among these offenses. See 
    id. at 842
    (“[c]onspiracy” is “both a crime against society and a violation of
    the laws of war”); WILLIAM WINTHROP, A DIGEST OF OPINIONS OF THE
    JUDGE ADVOCATE GENERAL OF THE ARMY 328–29 (1880) (“[c]onspiracy
    by two or more to violate the laws of war by destroying life or property in
    aid of the enemy” is an “offence[] against the laws and usages of war”).
    62
    c. Historical Practice
    My colleagues note that our nation lacks “a long-standing
    historical practice” of conspiracy trial and conviction by
    military commission, dismissing it as “thin . . . and equivocal
    at best.” Maj. Op. 18. There is no dispute that the “military
    commission . . . was born of military necessity.” 
    Hamdan, 548 U.S. at 590
    . Fortuitously, military necessity has occurred
    only sporadically since the creation of the military
    commission. But what history exists demonstrates that, each
    time military necessity has resulted in subjecting war
    criminals to military court jurisdiction, conspiracy has been
    among the charges tried.
    The majority takes issue with the example of the Lincoln
    conspirators, see WILLIAM H. REHNQUIST, ALL THE LAWS BUT
    ONE: CIVIL LIBERTIES IN WARTIME 144 (1998) (“Edwin
    Stanton personally directed the investigation of Lincoln’s
    assassination and the pursuit of the conspirators.”); 
    id. at 14
    5
    (“The administration . . . decided to try the alleged
    conspirators before a military commission rather than in the
    civil courts.”), concluding that the charging document
    “referred to conspiracy” but did not in fact charge conspiracy.
    Maj. Op. 18. According to the charging document, however,
    the Lincoln conspirators were charged with “combining,
    confederating, and conspiring together . . . to kill and murder
    . . . Abraham Lincoln.” J. HOLT & T. EWING, CHARGE AND
    SPECIFICATION AGAINST D AVID E. HEROLD, ET AL. (1865)
    (emphasis added); see also 
    REHNQUIST, supra, at 143
    (“Obviously, Booth had not acted alone in this enterprise, and
    the stage was now set for the trial of those who were charged
    with having conspired with him.” (emphasis added)). The
    circumstances surrounding the Lincoln assassination also
    make indisputable that the defendants could only have been
    charged with conspiracy. Because John Wilkes Booth was
    63
    the lone assassin and was himself killed while a fugitive, the
    remaining eight necessarily could have been tried and
    convicted based solely on their conspiracy. One of those
    eight individuals—Mary Surratt, who was hanged for her
    role—participated in the conspiracy by allowing the others to
    use her boarding house as a meeting place. See 
    REHNQUIST, supra, at 165
    . And two other Lincoln conspirators—Michael
    O’Laughlin and Samuel Arnold—could have been convicted
    only of inchoate conspiracy because, “[b]efore the final plot
    to assassinate Lincoln was hatched, O’Laughlin and Arnold
    appear to have abandoned the enterprise.” 
    Id. at 16
    2. Indeed,
    Arnold had apparently “told the others he wanted nothing
    more to do with the affair” one month before the assassination
    and, when Arnold withdrew, the remaining conspirators
    planned to kidnap—not assassinate—Lincoln. 
    Id. at 16
    0.
    Nevertheless, both O’Laughlin and Arnold were convicted
    and sentenced to life imprisonment at the conclusion of their
    military-commission trial. See 
    id. at 16
    2. Today, their
    withdrawal would have immunized them from the
    “postwithdrawal acts of [their] co-conspirators,” Smith v.
    United States, 
    133 S. Ct. 714
    , 719 (2013), and they would not
    have been convicted of a completed offense.               But
    abandonment without also preventing the object offense is not
    a defense to inchoate conspiracy. See MODEL PENAL CODE
    § 5.03(6).
    My colleagues respond by describing the military
    commission that tried the Lincoln conspirators as “a mixed
    martial law and law of war military commission.” Maj. Op.
    19. Its description, however, does not withstand scrutiny.
    True, at the time of the Lincoln conspirators’ trial,
    Washington, D.C., was under limited martial law.
    Nevertheless, the civilian courts remained open and
    operational. 11 U.S. Op. Atty. Gen. at 297 (“Martial law had
    been declared in the District of Columbia, but the civil courts
    64
    were open and held their regular sessions, and transacted
    business as in times of peace.”). But because the military
    cannot exercise martial-law jurisdiction unless civilian courts
    are closed, 
    Milligan, 71 U.S. at 127
    , the Lincoln conspirators’
    military court necessarily was purely a military commission
    with law-of-war (including conspiracy) jurisdiction. See also
    
    Hamdan, 548 U.S. at 597
    (plurality) (noting that military
    courts have at times “substituted for civilian courts at times
    and in places where martial law has been declared” (emphasis
    added)). 21    My colleagues, then, would retroactively
    undermine the constitutionality of at least two of the Lincoln
    conspirators’ convictions. Contra 
    Bahlul, 767 F.3d at 25
    (“the Lincoln conspirators’ trial [i]s a particularly significant
    precedent” because it “was a matter of paramount national
    importance and attracted intense public scrutiny”).
    My colleagues’ attempt to distinguish Bahlul from the
    Nazi saboteurs in Quirin fares no better. Quirin marked the
    first time in our nation’s history that the Supreme Court
    addressed the jurisdiction of a law-of-war military
    21
    My colleagues object to my reliance on Milligan, having been decided
    after the military-commission trial of the Lincoln conspirators. See Maj.
    Op. 19. Three Lincoln conspirators petitioned for a writ of habeas corpus
    in 1868, however, relying on Milligan to argue that “military tribunals
    have no authority to try civil offenses in districts where the regularly
    organized civil courts of the country are in undisturbed possession of all
    their powers.” Ex parte Mudd, 
    17 F. Cas. 954
    , 954 (S.D. Fla. 1868). The
    district court dismissed the petition, Milligan notwithstanding. See 
    id. (“I do
    not think that ex parte Milligan is a case in point here.”). Regardless
    whether the courts were open, the conspirators’ offense “transgressed the
    laws of war” and, thus, “the proper tribunal for the trial of those engaged
    in it was a military one.” Id.; see also 
    id. (describing “charge
    on which”
    Lincoln conspirators were convicted as “conspiracy to commit the military
    crime which one of their number did commit and some of them . . . more
    or less” participated in).
    65
    commission. See Haridimos V. Thravalos, History, Hamdan,
    and Happenstance: “Conspiracy by Two or More to Violate
    the Laws of War by Destroying Life or Property in Aid of the
    Enemy”, 3 HARV . N AT’ L SEC. J. 223, 277 (2012) (referring to
    Quirin as “the first time in civil litigation” that “the Court
    explicitly recognized the existence of law-of-war jurisdiction
    enforceable through criminal proceedings conducted by pure
    law-of-war military commissions, a source of jurisdiction that
    had long been recognized by the practice of our own military
    authorities” (quotation marks omitted)). Before Quirin, the
    Executive Branch had provided most of the legal authority
    prescribing offenses cognizable as law-of-war offenses. See
    
    id. at 240–41.
    Although the Supreme Court did not reach the
    conspiracy charge in Quirin, the petitioners’ conspiracy
    convictions secured the imprimatur of President Roosevelt.
    Because the President heads “a coequal branch of
    government” and “take[s] the same oath we do to uphold the
    Constitution of the United States,” his judgment is entitled to
    deference. 
    Rostker, 453 U.S. at 64
    ; see also United States v.
    Nixon, 
    418 U.S. 683
    , 703 (1974) (“In the performance of
    assigned constitutional duties each branch of the Government
    must initially interpret the Constitution, and the interpretation
    of its powers by any branch is due great respect from the
    others.”).
    My colleagues also distinguish the conspiracy charges in
    Colepaugh v. Looney, 
    235 F.2d 429
    (10th Cir. 1956). See
    Maj. Op. 20. The Colepaugh petitioners, described as the
    “1944 Nazi Saboteurs,” were charged with nearly identical
    offenses to those of the Quirin petitioners, including
    conspiracy. See 
    Colepaugh, 235 F.2d at 431
    ; 
    Thravalos, supra, at 241
    . As with the Quirin saboteurs, the Colepaugh
    petitioners’ convictions arrived at the court with the Executive
    Branch’s full sanction. In fact, their convictions were deemed
    lawful by (1) a special Board of Review in the Office of the
    66
    Judge Advocate General of the Army, (2) the Judge Advocate
    General himself and (3) President Harry Truman, who
    “personally approved” their convictions. 
    Thravalos, supra, at 241
    –42. The Tenth Circuit in Colepaugh affirmed “the
    charges and specifications before 
    us.” 235 F.2d at 432
    (emphasis added).       My colleagues read Colepaugh as
    affirming only “the law of war acts of belligerency,” and not
    “addressing the conspiracy charge.” Maj. Op. 20. But the
    Tenth Circuit put no such limitation on its holding. And even
    if it had, “[t]he U.S. Army continued to follow” Colepaugh
    “to try conspiracy in overseas theaters of war during the
    concluding months of World War II” 22 and to authorize trial
    of conspiracy by military commission during the Korean
    War. 23 
    Thravalos, supra, at 242
    –43.
    Rather than meet this—to me—robust history, my
    colleagues instead take issue with the Government’s
    (admittedly) paltry submission. See Maj. Op. 16–21. But we
    are “called upon to judge the constitutionality of an Act of
    Congress—‘the gravest and most delicate duty that this Court
    is called upon to perform,’ ” 
    Rostker, 453 U.S. at 64
    (quoting
    22
    See United States Army Forces, Pacific, Regulations Governing the
    Trial of War Criminals (Sept. 24, 1945) (making “participation in a
    common plan or conspiracy” punishable by military commission in Pacific
    Theater of Operations during World War II); United States Army Forces,
    China, Regulations Governing the Trial of War Criminals (Jan. 21, 1946)
    (same for China theater of operations).
    23
    See U.N. COMMAND, RULES OF CRIMINAL PROCEDURE FOR M ILITARY
    COMMISSIONS OF THE UNITED NATIONS COMMAND at Rule 4 (Oct. 22,
    1950) (making “all attempts to commit, or conspiracies and agreements to
    commit, as well as inciting, encouraging, aiding, abetting, or permitting
    violations of the laws and customs of war” committed during Korean War
    punishable by U.N. military commission); Gen. Douglas MacArthur,
    Letter Order, Gen. HQ, U.N. Command, Tokyo, Japan, Trial of Accused
    War Criminals (Oct. 28, 1950) (adopting Rule 4).
    67
    Blodgett v. Holden, 27
    5 U.S. 1
    42, 148 (1927) (Holmes, J.)),
    and I, accordingly, take issue with—and indeed reject—my
    colleagues’ languid dismissal of the Government’s
    submission without more.
    In sum, I would hold that Bahlul has not carried his
    burden of establishing—“clear[ly]” or otherwise—that his
    military trial and conviction are unconstitutional. 
    Quirin, 317 U.S. at 25
    . The Congress has ample authority under the
    Define and Punish Clause—especially when supplemented by
    the Necessary and Proper Clause and the broader war powers
    and supported by judicial precedent, Winthrop’s treatise and
    history—to authorize a military-commission trial charging
    conspiracy to commit war crimes.
    Before moving to Article III, one final point is in order.
    Both of my colleagues contend that, unless we stringently
    police the Congress’s Article I powers, the Government will
    possess “virtually unlimited authority” to try enemy
    combatants by military commission. Concur. Op. 8; see also
    Maj. Op. 26–27. Yet, when it comes to issues of national
    security and foreign affairs, abstention—not aggressive
    policing—has always been our watchword. See 
    Egan, 484 U.S. at 530
    ; 
    Latif, 677 F.3d at 1182
    . In addition, several
    limitations on military commissions remain, including the
    other jurisdictional requirements identified by Winthrop, see
    
    Hamdan, 548 U.S. at 597
    –98 (plurality) (citing 
    WINTHROP, supra, at 836
    –39); the Bill of Rights (for U.S. citizens); and—
    at the very least—the existence of an ongoing war, see
    
    Yamashita, 327 U.S. at 11
    –13. This last requirement should
    not be minimized. We would be wise to remember that, in a
    democracy like ours, not every question calls for a judicial
    answer. See Mo., K. & T. Ry. Co. of Tex. v. May, 
    194 U.S. 267
    , 270 (1904) (“[I]t must be remembered that legislatures
    are ultimate guardians of the liberties and welfare of the
    68
    people in quite as great a degree as the courts.”); Al-Bihani v.
    Obama, 
    619 F.3d 1
    , 11–12 (D.C. Cir. 2010) (Kavanaugh, J.,
    concurring in denial of rehearing en banc) (discussing
    potential “serious consequences, such as subjecting the United
    States to sanctions, undermining U.S. standing in the world
    community, or encouraging retaliation against U.S. personnel
    abroad” should political branches “ignore or disregard
    international-law norms” but nonetheless maintaining that “in
    our constitutional system of separated powers, it is for
    Congress and the President—not the courts—to determine in
    the first instance whether and how the United States will meet
    its international obligations”).
    B. ARTICLE III
    The heart of Bahlul’s appeal is his claim that the
    Congress violated Article III when it made conspiracy triable
    by military commission. In my view, Bahlul invokes two
    separate provisions of Article III: the Judicial Power Clause,
    U.S. CONST . art. III, § 1, and the Criminal Jury Clause, 
    id. § 2,
    cl. 3. I analyze both arguments below.
    1. Judicial Power Clause
    The Judicial Power Clause of Article III provides:
    The judicial Power of the United States, shall be
    vested in one supreme Court, and in such inferior
    Courts as the Congress may from time to time ordain
    and establish. . . .
    U.S. CONST. art. III, § 1. The Clause mirrors similar grants of
    power to the Congress in Article I and to the President in
    Article II. See 
    id. art. I,
    § 1 (“All legislative Powers herein
    granted shall be vested in a Congress . . . .”); 
    id. art. II,
    § 1, cl.
    1 (“The executive Power shall be vested in a President . . . .”).
    69
    Together, the Vesting Clauses erect “walls” that separate the
    three branches, 
    Plaut, 514 U.S. at 239
    , and prevent them from
    “shar[ing]” their respective powers, 
    Nixon, 418 U.S. at 704
    .
    The walls, however, are not “hermetically sealed,” 
    Stern, 131 S. Ct. at 2609
    , and they must bend a little to ensure we remain
    “a Nation capable of governing itself effectively,” Buckley v.
    Valeo, 
    424 U.S. 1
    , 121 (1976). See also Mistretta v. United
    States, 
    488 U.S. 361
    , 381 (1989) (“While the Constitution
    diffuses power the better to secure liberty, it also
    contemplates that practice will integrate the dispersed powers
    into a workable government.” (quoting 
    Youngstown, 343 U.S. at 635
    (Jackson, J., concurring)); Mo., K. & T. 
    Ry, 194 U.S. at 270
    (“Some play must be allowed for the joints of the
    machine . . . .”).
    Section 1 of Article III vests the “judicial Power” in the
    federal courts, whose judges enjoy life tenure and fixed
    salaries. See U.S. CONST . art. III, § 1. The “judicial Power,”
    as relevant here, extends to “Cases . . . arising under . . . the
    Laws of the United States.” 
    Id. § 2,
    cl. 1. Axiomatically,
    these provisions require Article III cases to be adjudicated by
    Article III judges in Article III courts. See 
    Stern, 131 S. Ct. at 2608
    –09. And they restrain the Congress’s authority to assign
    the judicial power to federal tribunals lacking the insulating
    protections of Article III. See 
    id. Despite this
    analytic simplicity, however, “the literal
    command of Art. III . . . must be interpreted in light of the
    historical context in which the Constitution was written, and
    of the structural imperatives of the Constitution as a whole.”
    N. 
    Pipeline, 458 U.S. at 64
    (plurality); see also 
    id. at 94
    (White, J., dissenting) (“[A]t this point in the history of
    constitutional law th[e Article III] question can no longer be
    answered by looking only to the constitutional text.”). The
    Supreme Court has recognized several historical—albeit
    70
    atextual—“exception[s]” to the Judicial Power Clause. See
    
    id. at 63–76
    (plurality). The deviations are justified by
    longstanding     historical    practice and   “exceptional
    constitutional grants of power to Congress” over particular
    subject matters. 
    Id. at 70
    & n.25.
    The military commission is one such exception. See
    
    Eisentrager, 339 U.S. at 785
    –90; 
    Quirin, 317 U.S. at 39
    –41;
    Ex parte Vallandigham, 
    68 U.S. 243
    , 251–53 (1863). Like
    courts martial and occupational courts, the constitutionality of
    the law-of-war military commission is “well-established.”
    
    Eisentrager, 339 U.S. at 786
    . Military tribunals predate the
    ratification of our Constitution and were used—without
    constitutional incident—during the Revolutionary, Mexican–
    American and Civil Wars. See 
    Madsen, 343 U.S. at 346
    &
    nn.8–9; 
    Quirin, 317 U.S. at 31
    & nn.9–10. Moreover, the
    Constitution vests broad war powers in the Congress,
    
    Eisentrager, 339 U.S. at 788
    , and military-commission trials
    are part of waging war. See 
    Yamashita, 327 U.S. at 11
    –12.
    Accordingly, placing the military commission outside the
    confines of Article III is “consistent with, rather than
    threatening to, the constitutional mandate of separation of
    powers.” N. 
    Pipeline, 458 U.S. at 64
    (plurality); see also
    Maqaleh v. Hagel, 
    738 F.3d 312
    , 334 (D.C. Cir. 2013) (“The
    prosecution of our wars is committed uniquely to the political
    branches . . . .”).
    As discussed 
    earlier, supra
    Part II.A, the Congress acted
    well within its Article I powers when it made conspiracy
    triable by military commission. The challenged provision
    therefore falls within a historical exception to the Judicial
    Power Clause. The Supreme Court said it well more than 150
    years ago:
    71
    Congress has the power to provide for the trial and
    punishment of military and naval offences in the
    manner then and now practiced by civilized nations;
    and . . . the power to do so is given without any
    connection between it and the 3d article of the
    Constitution defining the judicial power of the
    United States; indeed, . . . the two powers are
    entirely independent of each other.
    Dynes v. Hoover, 
    61 U.S. 65
    , 79 (1857) (emphases added).
    For this reason alone, Bahlul’s Article III challenge should
    fail.
    My colleagues suggest that, because inchoate conspiracy
    is not an expressly recognized international law-of-war
    offense, the challenged provision falls outside the historical
    safe harbor for military-commission jurisdiction and therefore
    violates Article III. See Maj. Op. 30–32; Concur. Op. 3. But
    this syllogism is faulty, even under their crabbed view of the
    Congress’s Article I authority.         A statute does not
    automatically violate the Judicial Power Clause simply
    because it falls outside a historical exception to Article III.
    See Thomas v. Union Carbide Agric. Prods. Co., 
    473 U.S. 568
    , 587 (1985) (“[P]ractical attention to substance rather
    than doctrinaire reliance on formal categories should inform
    application of Article III.”); 
    Schor, 478 U.S. at 851
    (“Although [formalistic and unbending] rules might lend a
    greater degree of coherence to this area of the law, they might
    also unduly constrict Congress’ ability to take needed and
    innovative action pursuant to its Article I powers.”). Instead,
    we apply the general standard for Judicial Power Clause
    challenges: the Schor balancing test. See 
    Schor, 478 U.S. at 851
    (announcing “practical” test for courts to apply “in
    reviewing Article III challenges”). Criminal cases are not
    exempt from this framework. See United States v. Seals, 130
    
    72 F.3d 451
    , 459 n.8 (D.C. Cir. 1997) (“While Schor addressed
    . . . a state-law counterclaim in an administrative reparation
    proceeding, there is no reason that the structural constitutional
    analysis should be any different in the criminal context.”
    (citing 
    Mistretta, 488 U.S. at 382
    –83)). And they do not
    enjoy any special significance under Article III. As the
    Supreme Court has explained:
    It was neither the legislative nor judicial view . . .
    that trial and decision of all federal questions were
    reserved for Art. III judges. Nor, more particularly
    has the enforcement of federal criminal law been
    deemed the exclusive province of federal Art. III
    courts. Very early in our history, Congress left the
    enforcement of selected federal criminal laws to state
    courts and to state court judges who did not enjoy the
    protections prescribed for federal judges in Art. III.
    Palmore v. United States, 
    411 U.S. 389
    , 402 (1973); see also
    
    id. at 407
    (“neither this Court nor Congress has read the
    Constitution as requiring . . . every criminal prosecution for
    violating an Act of Congress[] to be tried in an Art. III
    court”).
    The Supreme Court’s decision in Stern v. Marshall does
    not alter the analysis. There, the Supreme Court held that the
    Congress could not constitutionally authorize the bankruptcy
    courts to hear a debtor’s compulsory state-law counterclaim.
    
    See 131 S. Ct. at 2620
    . The Stern Court emphasized that its
    holding was “narrow” and “isolated.” Id.; see also Sharif, No.
    13-935, slip op. at 16 (“An expansive reading of Stern . . .
    would be inconsistent with the opinion’s own description of
    its holding.”). Its decision followed quite naturally from
    Northern Pipeline—another bankruptcy case. 
    See 131 S. Ct. at 2615
    (“Northern Pipeline . . . directly covers this case.”).
    73
    Despite the dissent’s concern that the majority had not
    faithfully applied the balancing approach from earlier cases,
    including Schor, see 
    Stern, 131 S. Ct. at 2622
    (Breyer, J.,
    dissenting), the Stern Court did not overrule, or even call into
    question, those precedents. See 
    id. at 26
    15. In fact, the Court
    faithfully applied Schor’s multi-factor balancing approach.
    See 
    id. at 26
    14–19; see also 
    id. at 26
    21 (Scalia, J., concurring)
    (“I count at least seven different reasons given in the Court’s
    opinion for concluding that an Article III judge was required
    to adjudicate this lawsuit.”). Indeed, Sharif—the Supreme
    Court’s latest pronouncement on the Judicial Power Clause—
    confirmed that the Schor balancing test remains the correct
    one. See Sharif, No. 13-935, slip op. at 12–15.
    My colleagues suggest, however, that the proper
    allocation of power between the Congress and the Judiciary
    turns on the latter’s interpretation of international law. See
    Maj. Op. 11–15; Concur. Op. 3–7. This approach is troubling
    enough under Article I; but the notion that international law
    dictates the operation of the separation of powers under our
    Constitution is outlandish. Indeed, the notion “runs counter to
    the democratic accountability and federal structure envisioned
    by our Constitution.” Hon. J. Harvie Wilkinson III, The Use
    of International Law in Judicial Decisions, 27 HARV. J.L. &
    PUB. POL’Y 423, 429 (2004). Instead, if the challenged
    provision falls outside a historical exception to Article III, we
    must still assess it under Schor. Schor’s balancing test is the
    only one that considers factors that are relevant to the
    separation-of-powers concerns underlying the Judicial Power
    Clause. We should look to separation-of-powers interests to
    decide separation-of-powers questions.
    Applying the Schor balancing test here, I believe the
    challenged provision does not violate the Judicial Power
    Clause. Granted, on one side of the Schor balance, a military
    74
    trial for conspiracy implicates “private,” as opposed to public,
    rights. See HART & WECHSLER’ S THE FEDERAL COURTS &
    THE FEDERAL SYSTEM 336 (6th ed. 2009) (noting criminal
    cases are private rights cases under Schor). This observation
    “does not end our inquiry,” 
    Schor, 478 U.S. at 853
    , but it
    means our review must be “searching.” 
    Id. at 854.
    Further,
    military commissions exercise many, but not all, of the
    “ordinary powers of district courts.” N. 
    Pipeline, 458 U.S. at 85
    (plurality). But see Sharif, No. 13-935, slip op. at 11 n.9
    (non–Article III tribunal’s power to enter final judgment is
    relevant but not decisive).
    It is unclear whether Bahlul “consented” to trial by
    military commission. Although he resisted being tried at all,
    he never raised an Article III objection to the military
    commission. Compare Sharif, No. 13-935, slip op. at 19
    (“[T]he key inquiry is whether the litigant or counsel was
    made aware of the need for consent and the right to refuse it,
    and still voluntarily appeared to try the case before the non-
    Article III adjudicator.” (emphasis added) (quotation marks
    omitted)), with 
    id. at 17
    (“[T]he cases in which this Court has
    found a violation of a litigant’s right to an Article III
    decisionmaker have involved an objecting defendant forced to
    litigate involuntarily before a non-Article III court.”
    (emphasis added)), and United States v. Underwood, 
    597 F.3d 661
    , 669–73 (5th Cir. 2010) (in criminal case, failure to raise
    Article III objection can constitute implied consent). In my
    view, “consent” from an enemy combatant like Bahlul does
    not meaningfully tip the scales one way or the other.
    On the other side of the balance, several factors indicate
    that conspiracy to commit war crimes can be constitutionally
    tried by military commission. First, and most importantly, the
    75
    Congress has subjected the military commission to judicial
    review. The 2009 MCA, like its 2006 predecessor, 24 allows
    the enemy combatants held at Guantanamo Bay, Cuba, to
    appeal their convictions to this Court, 10 U.S.C. § 950g, after
    intermediate review by the CMCR, 
    id. § 950f.
    We then
    review de novo all “matters of law” that an enemy combatant
    preserves for appeal, 
    id. § 950g(d),
    with the opportunity of
    certiorari review by the Supreme Court, 
    id. § 950g(e).
    This
    safeguard “provides for the appropriate exercise of the
    judicial function in this class of cases” and keeps the military
    commission within the bounds of law. Crowell v. Benson,
    
    285 U.S. 22
    , 54 (1932). As the Supreme Court has repeatedly
    recognized, the availability of de novo review of questions of
    law by an Article III court substantially allays any Judicial
    Power Clause concerns with a given statutory arrangement.
    See 
    Schor, 478 U.S. at 853
    ; Union 
    Carbide, 473 U.S. at 592
    ;
    
    Crowell, 285 U.S. at 54
    ; see also N. 
    Pipeline, 458 U.S. at 115
    (White, J., dissenting) (“the presence of appellate review by
    an Art. III court will go a long way toward insuring a proper
    separation of powers”). Granted, we review the military
    commission’s verdict—i.e., its findings of fact—only for
    “sufficiency of the evidence.” 10 U.S.C. § 950g(d). But,
    contrary to my colleagues’ assertion, Maj. Op. 33–34, Article
    III requires very little—perhaps zero—judicial review of
    ordinary questions of fact. See 
    Crowell, 285 U.S. at 51
    (“[I]n
    [private rights] cases . . ., there is no requirement that, in order
    to maintain the essential attributes of the judicial power, all
    determinations of fact in constitutional courts shall be made
    by judges.”); The Francis Wright, 
    105 U.S. 381
    , 386 (1881)
    24
    The 2009 MCA, Pub. L. No. 111-84, 123 Stat. 2190, was enacted in
    October 2009, after Bahlul’s military-commission trial but before his
    appeal to the CMCR. See United States v. Bahlul, 
    820 F. Supp. 2d 1141
    ,
    1156–57 (USCMCR 2011).
    76
    (Congress has “power to limit the effect of an appeal to a
    review of the law as applicable to facts finally determined
    below”). The deferential review provided by the 2009 MCA
    thus goes beyond the constitutional minimum. See, e.g.,
    Estep v. United States, 
    327 U.S. 1
    14, 122 (1946) (upholding
    “no basis in fact” standard for jurisdictional facts and zero
    review for ordinary facts in criminal case); Union 
    Carbide, 473 U.S. at 592
    –93 (review for “fraud, misconduct, or
    misrepresentation” satisfies Article III); 
    Schor, 478 U.S. at 853
    (review for “weight of the evidence” satisfies Article III);
    
    Crowell, 285 U.S. at 48
    (“not supported by evidence”
    standard satisfies Article III); see also Jackson v. Virginia,
    
    443 U.S. 307
    , 318–19 (1979) (“sufficiency of the evidence”
    standard satisfies due-process requirements for criminal
    cases).
    Second, the military commission has very limited
    jurisdiction under the 2006 MCA. It “deals only with a
    particularized area of law”—namely, the law of war. 
    Schor, 478 U.S. at 852
    (quotation marks omitted). The 2006 MCA
    enumerates, in total, 30 war crimes, 10 U.S.C. §§ 950r, 950u–
    950v (2006), and only an “alien unlawful enemy combatant”
    is subject to military-commission trial, 
    id. § 948c.
    No one
    disputes that military commissions can—consistent with
    Article III—adjudicate expressly recognized international
    law-of-war offenses. An inchoate offense like conspiracy
    adds only a “narrow class of . . . claims . . . incident to the
    [military commission’s] primary, and unchallenged,
    adjudicative function.” Sharif, No. 13-935, slip op. at 13.
    This is not a case in which the Congress “created a phalanx of
    non–Article III tribunals equipped to handle the entire
    business of the Article III courts.” 
    Schor, 478 U.S. at 855
    .
    Nor does the commission possess unbounded jurisdiction
    “reaching any area of the corpus juris.” 
    Stern, 131 S. Ct. at 2615
    . Here, “the magnitude of any intrusion on the Judicial
    77
    Branch can only be termed de minimis.” 
    Schor, 478 U.S. at 856
    .
    Third, “the concerns that drove Congress to depart from
    the requirements of Article III” tilt in favor of the challenged
    provision’s constitutionality. 
    Id. at 851.
    The Congress chose
    the military commission over Article III court for one
    overriding reason: national security. Among the discussed
    concerns were the potential disclosure of highly classified
    information 25; the efficiency of military-commission
    proceedings 26; the military’s expertise in matters of national
    security 27; the inability to prosecute enemy combatants due to
    speedy-trial violations 28; the inadmissibility of certain forms
    of evidence 29; and, later, the risk of terrorist attacks on
    25
    See, e.g., 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen.
    Frist); 
    id. (statement of
    Sen. Warner); 152 Cong. Rec. H7522 (Sept. 27,
    2006) (statement of Rep. Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006)
    (statement of Rep. Hunter); 152 Cong. Rec. S10354 (Sept. 28, 2006)
    (statement of Sen. Bond); 
    id. (statement of
    Sen. McConnell); 
    id. (statement of
    Sen. Frist).
    26
    See, e.g., 152 Cong. Rec. H7522 (Sept. 27, 2006) (statement of   Rep.
    Hunter); 
    id. (statement of
    Rep. Sensenbrenner); 
    id. (statement of
      Rep.
    Cardin); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of        Rep.
    Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of        Rep.
    Sensenbrenner).
    27
    See, e.g., 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen.
    Graham); 
    id. (statement of
    Sen. Kyl); 152 Cong. Rec. S10354 (Sept. 28,
    2006) (statement of Sen. Graham); 
    id. (statement of
    Sen. Cornyn); 
    id. (statement of
    Sen. Sessions).
    28
    See 10 U.S.C. § 948b(d)(1)(A) (2006) (making “speedy trial” rules
    inapplicable in military commissions). See generally Scott L. Silliman,
    Prosecuting Alleged Terrorists by Military Commission: A Prudent
    Option, 42 CASE W. RES. J. INT’L L. 289, 294 (2009).
    29
    See, e.g., 152 Cong. Rec. S10243 (Sept. 27, 2006) (statement of Sen.
    Graham); 152 Cong. Rec. H7522 (Sept. 27, 2006) (statement of Rep.
    78
    domestic courts. 30 Unlike my concurring colleague, who
    believes that Article III courts are well-suited to try
    conspirators like Bahlul, see Concur. Op. 8–9, I would defer
    to the choice made by the Congress—an institution with real-
    world expertise in this area that has rejected a one-size-fits-all
    choice of forum. In any event, the Congress’s concerns are
    plainly legitimate; indeed, “no governmental interest is more
    compelling than the security of the Nation.” Haig v. Agee,
    
    453 U.S. 280
    , 307 (1981). And these legitimate interests
    demonstrate without question that the Congress did not
    “transfer jurisdiction to [a] non-Article III tribunal[] for the
    purpose of emasculating constitutional courts.” 
    Schor, 478 U.S. at 850
    (emphasis added) (alterations and quotation marks
    omitted).
    Finally, the system that the Congress has established—
    military-commission proceedings in the Executive Branch,
    appellate review in the Judicial Branch—“raises no question
    of the aggrandizement of congressional power at the expense
    of a coordinate branch.” 
    Schor, 478 U.S. at 856
    . As the
    Supreme Court explained in Mistretta, “encroachment and
    aggrandizement” are the hallmarks of cases in which the
    Court has invalidated a congressional statute for violating the
    separation of 
    powers. 488 U.S. at 382
    . “By the same token,”
    the Supreme Court has “upheld statutory provisions that to
    some degree commingle the functions of the Branches, but
    that pose no danger of either aggrandizement or
    Hunter); 152 Cong. Rec. H7925 (Sept. 28, 2006) (statement of Rep.
    Hunter).
    30
    See, e.g., 155 Cong. Rec. S5589 (May 19, 2009) (statement of Sen.
    McConnell); 
    id. (statement of
    Sen. Johanns); 
    id. (statement of
    Sen.
    Martinez); 155 Cong. Rec. S5650 (May 20, 2009) (statement of Sen.
    Thune); 155 Cong. Rec. S7509 (Jul. 15, 2009) (statement of Sen. Inhofe).
    79
    encroachment.” 
    Id. (citing, as
    examples, Morrison v. Olson,
    
    487 U.S. 654
    (1988) and Schor, 
    478 U.S. 833
    ). In the 2006
    MCA, the Congress has assigned conspiracy to the military
    for trial and sentencing and to the Judiciary for review
    “without appreciable expansion of its own power,” 
    Schor, 478 U.S. at 856
    –57, and while “retain[ing] for itself no powers of
    control or supervision,” 
    Morrison, 487 U.S. at 694
    . This is
    not the sort of legislation that raises separation-of-powers
    hackles.
    Notably, the Supreme Court has found a violation of the
    Judicial Power Clause in only two cases—both involving
    bankruptcy courts. See 
    Stern, 131 S. Ct. at 2620
    ; Northern
    
    Pipeline, 458 U.S. at 87
    (plurality). Outside the bankruptcy
    context, however, the Court has repeatedly upheld
    congressional statutes against such attacks.           See, e.g.,
    
    Mistretta, 488 U.S. at 393
    –97 (U.S. Sentencing Commission);
    
    Schor, 478 U.S. at 851
    –58 (CFTC); Union 
    Carbide, 473 U.S. at 582
    –93 (mandatory arbitration); 
    Palmore, 411 U.S. at 407
    –
    10 (District of Columbia courts); Williams v. United States,
    
    289 U.S. 553
    , 568–81 (1933) (Court of Claims); 
    Crowell, 285 U.S. at 48
    –65 (workmen’s compensation board); Ex parte
    Bakelite Corp., 
    279 U.S. 438
    , 452–61 (1929) (Court of
    Customs Appeals); 
    Dynes, 61 U.S. at 79
    (courts martial); Am.
    Ins. Co. v. 356 Bales of Cotton, 
    26 U.S. 511
    , 546 (1828)
    (territorial courts). The bankruptcy cases are an anomaly in
    this area of the law and I do not believe they provide a
    relevant analog. Military commissions are a recognized
    exception to Article III whereas bankruptcy courts are not.
    See N. 
    Pipeline, 458 U.S. at 71
    (plurality) (Congress’s
    bankruptcy power is not “exceptional grant of power” subject
    to Article III exception); 
    Stern, 131 S. Ct. at 2614
    (bankruptcy
    courts do not fall under “public rights” exception to Article
    III). This case, then, is much easier than Stern and Northern
    Pipeline: the historical exceptions to Article III are exceptions
    80
    not because they are close to the constitutional line but
    because they are far from it. See 
    Dynes, 61 U.S. at 79
    .
    Historically, courts martial and military commissions are
    thought to pose no Article III problem, notwithstanding they
    are subject to little judicial review. See 28 U.S.C. § 1259;
    Burns v. Wilson, 
    346 U.S. 137
    , 140–41 (1953) (plurality);
    
    Vallandigham, 68 U.S. at 252
    –53. The availability of de novo
    appellate review under the 2009 MCA keeps the challenged
    provision in the constitutional fold, even if, arguendo,
    inchoate conspiracy were to venture beyond the historical
    Article III exception for military-commission jurisdiction.
    For these reasons, I believe the challenged provision
    satisfies the Schor balancing test. Moreover, irrespective of
    Schor, the statute falls comfortably within the Congress’s
    Article I authority and, concomitantly, under the military-
    commission exception to Article III. Bahlul’s Judicial Power
    Clause challenge therefore fails.
    2. Criminal Jury Clause
    In addition to ensuring the separation of powers, Article
    III also protects individual rights. The Criminal Jury Clause
    broadly requires that “[t]he Trial of all Crimes . . . shall be by
    Jury . . . in the State where the said Crimes shall have been
    committed” or where the “Congress may by Law have
    directed.” U.S. CONST. art. III, § 2, cl. 3. Like the Sixth
    Amendment, the Criminal Jury Clause preserves the right to a
    jury only as it existed at common law. 
    Quirin, 317 U.S. at 39
    (“[I]t was not the purpose or effect of § 2 of Article III, read
    in the light of the common law, to enlarge the then existing
    right to a jury trial.”).
    Bahlul—an enemy combatant tried by military
    commission—has no right to a jury. At common law, “trial
    by a jury” was a “familiar part[] of the machinery for criminal
    81
    trials in the civil courts.” 
    Id. But it
    was “unknown to military
    tribunals, which are not courts in the sense of the Judiciary
    Article, and which in the natural course of events are usually
    called upon to function under conditions precluding resort to
    such procedures.” 
    Id. (citations omitted).
    For example, the
    Continental Congress passed a resolution ordering the trial of
    alien spies in military courts without a jury. See 
    id. at 41
    (citing Resolution of the Continental Congress of Aug. 21,
    1776, 5 J. CONT’L CONG. 693).                 The resolution—a
    “contemporary construction” of the Constitution “entitled to
    the greatest respect”—manifests that the Founders did not see
    juries as a limitation on military-commission trials. 
    Id. at 41
    –
    42; see also Kahn v. Anderson, 25
    5 U.S. 1
    , 8 (1921) (rejecting
    idea that military courts must use jury because it would
    “directly den[y] the existence of a power [that] Congress
    exerted from the beginning”). Moreover, members of our
    own military are tried by court martial without a jury; thus,
    the Constitution plainly presents “no greater obstacle” to
    trying enemy combatants by military commission. 
    Quirin, 317 U.S. at 44
    ; see also Whelchel v. McDonald, 
    340 U.S. 122
    ,
    127 (1950) (“The right to trial by jury guaranteed by the Sixth
    Amendment is not applicable to trials by courts-martial or
    military commissions.”); Sanford v. United States, 
    586 F.3d 28
    , 35 (D.C. Cir. 2009) (“[T]he Sixth Amendment right to a
    criminal jury trial does not, itself, apply to the military.”). As
    discussed 
    earlier, supra
    Part II.A, the Congress has the Article
    I authority to require Bahlul to be tried by military
    commission. He therefore has no right to a jury. See 
    Quirin, 317 U.S. at 40
    (“[section] 2 of Article III and the Fifth and
    Sixth Amendments cannot be taken to have extended the right
    to demand a jury to trials by military commission”); 
    id. at 41
    (“trials before military commissions . . . are . . . no[t] within
    the provisions of Article III, § 2”); accord 
    Colepaugh, 235 F.2d at 433
    (“Quirin . . . removes any doubt of the
    82
    inapplicability of the Fifth or Sixth Amendments to trials
    before military commissions.”).
    Bahlul contends, however, that the Criminal Jury Clause,
    like the Judicial Power Clause, is a structural limitation on
    military-commission jurisdiction. Specifically, he believes—
    and my colleagues at one point appear to agree, see Maj. Op.
    14—that a military commission has no jurisdiction of offenses
    triable by jury at common law. Bahlul is mistaken. The right
    to a jury is not a “structural” constraint but an individual right
    that can be both forfeited and waived. Johnson, 
    520 U.S. 461
    ,
    465–66 (1997); see also B&B 
    Hardware, 135 S. Ct. at 1304
    (jury-trial right “does not strip competent tribunals of the
    power to issue judgments,” no matter “the nature of the
    competent tribunal”); Gosa v. Mayden, 
    413 U.S. 665
    , 677
    (1973) (plurality) (denial of jury-trial right does not deprive
    military tribunal of jurisdiction or render its judgments void).
    Even Schor recognized this difference:
    [A]s a personal right, Article III’s guarantee of an
    impartial and independent federal adjudication is
    subject to waiver, just as are other personal
    constitutional rights that dictate the procedures by
    which civil and criminal matters must be tried. See,
    e.g., Duncan v. Louisiana, 
    391 U.S. 145
    , 158 (1968)
    (waiver of right to trial by jury in criminal 
    case). 478 U.S. at 848
    –49 (some citations omitted). The right to a
    jury—regardless of its location in Article III—is no more a
    structural limitation on military-commission jurisdiction than
    are the myriad personal safeguards in the Bill of Rights. Cf.
    
    Seals, 130 F.3d at 456
    n.3 (“constitutional safeguards
    associated with Article III supervision of federally-indicting
    grand juries . . . implicate[] personal, not structural,
    constitutional rights” (citations omitted)).
    83
    The Supreme Court’s Seventh Amendment jurisprudence
    makes doubly clear that the right to a jury is not an
    independent constraint on the Congress’s authority to use
    non–Article III tribunals. In Granfinanciera, the petitioners
    argued that their Seventh Amendment right to a civil jury
    prevented the Congress from assigning certain claims to the
    bankruptcy courts. 
    See 492 U.S. at 36
    –37. According to the
    Court, whether the petitioners had a right to trial by jury
    “requires the same answer as the question whether Article III
    allows Congress to assign adjudication . . . to a non–Article
    III tribunal.” 
    Id. at 53
    (emphasis added). In other words, the
    Judicial Power Clause—not the Seventh Amendment—is the
    only structural limit on the Congress’s authority. “[I]f
    Congress may assign the adjudication . . . to a non-Article III
    tribunal, then the Seventh Amendment poses no independent
    bar to the adjudication of that action by a nonjury factfinder.”
    
    Id. at 53
    –54 (emphasis added). The same is true here. As
    
    noted, supra
    Part II.B.1, the Judicial Power Clause allows the
    Congress to authorize the trial of conspiracy by military
    commission. Accordingly, Bahlul has no right to a jury and
    the Criminal Jury Clause poses “no independent bar” to his
    conviction. 
    Id. at 54.
    31
    Even if the Criminal Jury Clause did limit military-
    commission jurisdiction, it has no application here because
    Bahlul is neither a U.S. citizen nor present on U.S. soil. The
    Supreme Court has repeatedly held that the Constitution
    offers no protection to noncitizens outside the United States.
    See, e.g., 
    Eisentrager, 339 U.S. at 784
    –85; United States v.
    Verdugo–Urquidez, 
    494 U.S. 259
    , 273–75 (1990); Zadvydas
    31
    Notably, the Hamdan Court cited only the Judicial Power Clause, not
    the Criminal Jury Clause, as a limitation on the Congress’s authority to
    employ military commissions. 
    See 548 U.S. at 591
    .
    84
    v. Davis, 
    533 U.S. 678
    , 693 (2001); Kwong Hai Chew v.
    Colding, 
    344 U.S. 590
    , 597 n.5 (1953); United States v.
    Belmont, 
    301 U.S. 324
    , 332 (1937); United States v. Curtiss–
    Wright Export Corp., 
    299 U.S. 304
    , 318 (1936). This
    limitation on the Constitution’s extraterritorial reach
    encompasses the right to a jury trial in a criminal case. See,
    e.g., 
    Eisentrager, 339 U.S. at 784
    –85; Balzac v. Porto Rico,
    
    258 U.S. 298
    , 304–05 (1922); Dorr v. United States, 19
    5 U.S. 1
    38, 149 (1904); Territory of Hawaii v. Mankichi, 
    190 U.S. 197
    , 218 (1903). Granted, in Reid v. Covert, a plurality of the
    Supreme Court agreed that the right to a jury extends to U.S.
    citizens abroad. 
    See 354 U.S. at 7
    . But “[s]ince [Bahlul] is
    not a United States citizen, he can derive no comfort from the
    Reid holding.” 
    Verdugo-Urquidez, 494 U.S. at 270
    . The
    cases Bahlul relies on to support his jury-right argument
    suffer from the same fatal flaw: all involved U.S. citizens.
    See 
    Reid, 354 U.S. at 3
    (citizen wives of U.S. soldiers); 
    Toth, 350 U.S. at 13
    (U.S. soldier); 
    Quirin, 317 U.S. at 20
    (Nazi
    saboteur with U.S. citizenship through his parents); 
    Milligan, 71 U.S. at 107
    (U.S. citizen living in Indiana).
    In Boumediene v. Bush, the Supreme Court held “only”
    that the Suspension Clause protects enemy combatants held at
    Guantanamo Bay. 
    553 U.S. 723
    , 795 (2008). This Court has
    declined to extend Boumediene beyond its narrow holding.
    See 
    Maqaleh, 738 F.3d at 336
    n.16 (“As a novel constitutional
    development, we are loath to expand Boumediene’s reach
    without specific guidance from the Supreme Court,
    particularly where expansion would carry us further into the
    realm of war and foreign policy.”); Kiyemba v. Obama, 
    555 F.3d 1022
    , 1032 (D.C. Cir. 2009) (“Boumediene . . .
    specifically limited its holding to the Suspension Clause”).
    And we lack the authority to read Boumediene as overruling
    sub silentio Supreme Court precedent on the nonavailability
    of jury rights to noncitizens abroad. See Rodriguez de Quijas
    85
    v. Shearson/Am. Exp., Inc., 
    490 U.S. 477
    , 484 (1989) (“If a
    precedent of this Court has direct application in a case, yet
    appears to rest on reasons rejected in some other line of
    decisions, the Court of Appeals should follow the case which
    directly controls, leaving to this Court the prerogative of
    overruling its own decisions.”).
    Bahlul has no constitutional right to a jury and neither the
    Criminal Jury Clause nor the Judicial Power Clause of Article
    III can invalidate his conspiracy conviction.
    C. EQUAL PROTECTION & FIRST AMENDMENT
    Bahlul’s two remaining challenges are frivolous. He
    contends that the 2006 MCA violates the equal protection
    component of the Fifth Amendment Due Process Clause
    because it applies only to aliens, not U.S. citizens, and that he
    was convicted because of his speech in violation of the First
    Amendment. Two of my colleagues have already considered
    these arguments and rejected them. See 
    Bahlul, 767 F.3d at 6
    2 (Brown, J., concurring/dissenting); 
    id. at 7
    5–76
    (Kavanaugh, J., concurring/dissenting). I fully endorse their
    reasoning.
    For the foregoing reasons, I respectfully dissent.
    

Document Info

Docket Number: 11-1324

Citation Numbers: 416 U.S. App. D.C. 340, 792 F.3d 1, 2015 U.S. App. LEXIS 9868

Judges: Henderson, Rogers, Tatel

Filed Date: 6/12/2015

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (122)

Stern v. Marshall , 131 S. Ct. 2594 ( 2011 )

Smith v. United States , 133 S. Ct. 714 ( 2013 )

Pinkerton v. United States , 66 S. Ct. 1180 ( 1946 )

Ex Parte Quirin , 317 U.S. 1 ( 1942 )

United States v. Williams , 71 S. Ct. 595 ( 1951 )

Bragdon v. Abbott , 118 S. Ct. 2196 ( 1998 )

United States v. Al Bahlul , 820 F. Supp. 2d 1141 ( 2011 )

Northern Pipeline Construction Co. v. Marathon Pipe Line Co. , 102 S. Ct. 2858 ( 1982 )

Puckett v. United States , 129 S. Ct. 1423 ( 2009 )

Rivera v. Illinois , 129 S. Ct. 1446 ( 2009 )

Holder v. Humanitarian Law Project , 130 S. Ct. 2705 ( 2010 )

Bond v. United States , 131 S. Ct. 2355 ( 2011 )

Executive Benefits Insurance Agency v. Arkison , 134 S. Ct. 2165 ( 2014 )

B&B Hardware, Inc. v. Hargis Industries, Inc. , 135 S. Ct. 1293 ( 2015 )

Johnson v. Eisentrager , 70 S. Ct. 936 ( 1950 )

Burroughs and Cannon v. United States , 54 S. Ct. 287 ( 1934 )

In Re Yamashita , 66 S. Ct. 340 ( 1946 )

Myers v. United States , 47 S. Ct. 21 ( 1926 )

Missouri, Kansas & Texas Railway Co. v. May , 24 S. Ct. 638 ( 1904 )

Cobbledick v. United States , 60 S. Ct. 540 ( 1940 )

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