Full opinion text
PUBLISHED OPINION OF THE COURT PER CURIAM. I. STATEMENT OF FACTS ...............................................1254 II. CHARGE AND SPECIFICATIONS WITH GUILTY FINDINGS.............1258 III. PROCEDURAL HISTORY ..............................................1259 IV. ISSUES................................................................1260 V. MILITARY COMMISSION PROCEDURES...............................1260 VI. STANDARD OF REVIEW...............................................1263 VII.PROVIDING MATERIAL SUPPORT FOR TERRORISM AS A LAW OF WAR OFFENSE......................................................1264 A. Authority to Define Law of War Offenses.............................1264 1. War Powers.....................................................1264 2. Foreign Affairs..................................................1267 Defining Terrorism and Providing Material Support for Terrorism.... 1270 W 1. U.S. Domestic Terrorism Offenses — Title..........................1270 2. Congressional Finding that Providing Material Support for Terrorism is a Traditional Law of War Offense..................1273 3. The M.C.A. and Providing Material Support for Terrorism..........1274 4. M.M.C.’s List of Elements for Appellant’s Specifications............1275 5. Criminal Intent and Wrongfulness................................1276 6. Findings of the Military Commission Judge .......................1279 Criminalization of Analogous Global Conduct.........................1279 O 1. International Conventions and Declarations.......................1280 2. International Criminal Tribunals.................................1284 3. Non-United States Domestic Terrorism Laws......................1288 Prosecutions for Wrongfully Providing Aid or Support to the Enemy.... 1292 1. Contents of Specifications........................................1293 2. 19th Century Irregular Warfare and Aiding the Enemy.............1294 3. The Philippine-American War, 1899-1902..........................1303 4. World War II Era...............................................1304 5. Army 1914 and 1956 Manuals.....................................1309 Ex Post Facto......................................................1310 Conclusion.........................................................1312 VIH. EQUAL PROTECTION .................................................1313 A. Jurisdiction of Article I Courts.......................................1314 B. Due Process........................................................1315 C. Boumediene and Equal Protection under the Fifth Amendment.........1316 D. The 2006 M.C.A. and the Equal Protection Component of the Due Process Clause of the Fifth and Fourteenth Amendments............1319 E. Legal Test..........................................................1320 F. Application of Rational Basis Review.................................1322 IX. CONCLUSION..........................................................1322 Appellant was convicted, contrary to his pleas, of five specifications of providing material support for terrorism, in violation of the Military Commissions Act of 2006, 10 U.S.C. § 950v(b)(25), at a military commission convened at U.S. Naval Station, Guantanamo Bay, Cuba. The military commission sentenced him to 66 months confinement, and the convening authority approved the findings and sentence. Under our review authority, we have carefully considered the record and the various pleadings, briefs, and oral arguments of the parties and amici We find appellant’s assignments of error and pleadings, to include his filing on granted issues, to be without merit, and we affirm the findings and sentence. I. STATEMENT OF FACTS The record establishes and the military commission found that appellant joined and became a member of al Qaeda, a well-established terrorist organization, with the knowledge that al Qaeda has engaged in and engages in terrorism. He had the intent to join in al Qaeda’s purposes, and he subsequently took actions to further al Qaeda’s goals and purposes. As early as 1989, Usama bin Laden associated with al Qaeda’s Shura Counsel, especially the leader of the Egyptian Islamic Jihad Movement, Dr. Ayman al-Zawahiri, and Omar Abdel Rahman, the Blind Shaykh. Rahman was “the joint spiritual leader of the two leading terrorist organizations in Egypt, the Islamic Jihad and Al-Gama’at al-Islamiyya.” Al Qaeda, a military organization, has been involved in various violent activities directed against U.S. civilian and military personnel since at least 1991. “In December 1991, Islamic militants launched a failed bomb attack at a hotel in Aden, Yemen targeting 100 U.S. soldiers who were staying there en route to peacekeeping duties in nearby Somalia.” The 1991 Aden bombing, which killed two tourists, was “in response to a ‘fatwah,’ or religious edict, issued on behalf of [al-Qaeda] in late 1991 — which condemned the presence of U.S. military peacekeepers as an attempt to colonize the Muslim world.” In late 1992, bin Laden led meetings of terrorists at al Qaeda guesthouses in Khartoum, Sudan. Al Banshiri, al Qaeda’s chief military commander, told al Qaeda members that al Qaeda hoped the United States would become involved in the civil war in Somalia so “that we make a big war with them.” Bin Laden announced to 30-40 al Qaeda members in late 1993 that “the American army now they came to the Horn of Africa, and we have to stop the head of the snake ... the snake is America, and we have to stop them. We have to cut the head and stop them.” In 1993, al Qaeda’s leaders sent al Qaeda Shura Council member Mohammed Atef (a.k.a. Abu Hafs al Masri) to Somalia to organize and train for an attack upon U.S. forces. In October 1993, Somali militiamen used rocket-propelled grenades to shoot down two U.S. Blackhawk helicopters over Mogadishu. Eighteen U.S. military personnel and numerous militiamen were killed in the ensuing street battle. Shortly thereafter, Abu Hafs spoke with al Qaeda members in the Sudan and stated, “everything happening in Somalia, it’s our responsibility ... the al Qaeda group, our group.” In January 1996, Rahman was convicted in U.S. federal court of conspiracy for inspiring the February 1993 bombing of the World Trade Center. United States v. Rahman, 189 F.3d 88, 103 (2d Cir.1999). In early 1996, Mohammed bin Attash, a close associate of bin Laden, convinced appellant that he should go from his home in Yemen to Tajikistan for Jihad. Bin Attash gave appellant a false passport and an airline ticket to fly from Yemen to Pakistan. Appellant stayed in guest houses in Pakistan, and then he went to Afghanistan. Once in Afghanistan, appellant spent 30-40 days at Al Farouq, an al Qaeda training camp. While there, appellant received training on a variety of weapons, including AK-47s, machine guns, pistols, and rockets. After training, appellant became a driver for an al Qaeda guest house where he ferried people and supplies between Al Farouq and the guest houses. Shortly thereafter, appellant was introduced to bin Laden, gained his trust, and became a primary driver for him. Appellant was trained on convoy techniques and standard operating procedures to engage in if one of bin Laden’s compounds came under attack. In addition to serving as bin Laden’s driver, appellant also served as his bodyguard. All bodyguards and drivers were armed. During this period as bin Laden’s personal driver and bodyguard, appellant pledged bayat, or “unquestioned allegiance” to bin Laden. The bayat extended to bin Laden’s campaign to conduct jihad against Jews and crusaders and to liberate the Arabian Peninsula from infidels; however, appellant reserved the right to withdraw his bayat if bin Laden undertook a mission with which he did not agree. The record does not reveal any instance where appellant exercised this prerogative and refused to support an al Qaeda mission or declined to obey bin Laden’s orders. Appellant, on numerous occasions, delivered requests for logistical support, including weapons and ammunition, to al Qaeda’s logistical officer and subsequently delivered the military supplies to the Panjshir Valley. Appellant also delivered bin Laden’s orders for military supplies. Appellant repeatedly attended anti-Western lectures given by bin Laden. This began with his own training at an al Qaeda training camp and continued throughout his association with bin Laden, including driving him to training camps and other meetings. In August 1996, bin Laden issued a video which included a “declaration of war” against the Americans who were occupying land in the Arabian Peninsula (1996 Jihad Declaration). Bin Laden’s 1996 Jihad Declaration encouraged the killing of American soldiers in the Arabian Peninsula, and he called upon Muslims everywhere to carry out operations to expel Americans and non-Muslims from the Arabian Peninsula by use of “explosions and jihad” stating: My Muslim Brothers of The World: Your brothers in Palestine and in the land of the two Holy Places are calling upon your help and asking you to take part in the fighting against the enemy— your enemy and their enemy — the Americans and the Israelis. They are asking you to do whatever you can, with one[’s] own means and ability, to expel the enemy, humiliated and defeated, out of the sanctities of Islam. In February 1998, bin Laden held a press conference in Afghanistan and announced the founding of the “World Islamic Front Against Jews and Crusaders.” “Bin Laden and his colleagues signed a joint fatwah requiring all Muslims able to do so to kill Americans — whether civilian or military — anywhere they can be found and to ‘plunder their money.’ ” Bin Laden issued a declaration called “The Nuclear Bomb of Islam” which included the statement, “it is the duty of Muslims to prepare as much force as possible to terrorize the enemies of God.” On August 7, 1998, al Qaeda operatives detonated truck bombs outside the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, killing 257 people, including 12 Americans, and wounding thousands more. Before the bombings of the U.S. Embassies in Nairobi and Tanzania in 1998, appellant knew that a terrorist attack outside of Afghanistan targeting Americans was going to take place. Bin Laden did not know how the U.S. would react, so bin Laden left his compound in Kandahar the day after the attacks and went to Kabul for 10 days. In 1998, appellant drove bin Laden to a press conference related to the 1998 East African Embassy bombings. While there, appellant met al-Zawahiri. On August 20, 1998, the United States retaliated, sending tomahawk missiles and striking “terrorist training camps in Afghanistan and a suspected chemical weapons laboratory in Khartoum, Sudan.” Shaykh Omar Abdel Rahman responded from inside his American jail cell by urging new recruits to join the cause and issuing a new fatwah, saying, “Oh, Muslims everywhere! Cut the transportation of their countries, tear it apart, destroy their economy, burn their companies, eliminate their interests, sink their ships, shoot down their planes, kill them on the sea, air, or land. Kill them when you find them, take them and encircle them....” In October 2000, al Qaeda operatives exploded a bomb alongside the USS COLE, “killing 17 American sailors, wounding 39 others, and causing nearly $250 million in damage. The COLE operation came at the direction and urging of Usama bin Laden, Abu Hafs Al Masri, and other senior [al-Qaeda] leaders.” At the time of the USS COLE bombing, appellant was in Yemen. He believed that due to his close association with bin Laden, he might be apprehended, so he made arrangements to return to Afghanistan. Appellant knew that the scope of bin Laden and al Qaeda’s operations included terrorist attacks targeting Americans outside of Afghanistan. Appellant drove bin Laden in a convoy in August 2001 to a large gathering with 150-200 attendees, mostly Egyptian Islamic Jihad members and al Qaeda members. After the dinner, al-Zawahiri and bin Laden announced that the Egyptian Islamic Jihad and al Qaeda were merged. Subsequently, appellant drove bin Laden to meetings with al-Zawahiri and drove in convoys with both bin Laden and al-Zawahiri. Al Qaeda’s actions achieved worldwide infamy when, on September 11, 2001, 19 men recruited by al Qaeda hijacked four commercial airliners on the east coast of the United States and crashed one into the Pentagon in Washington D.C. and two into the World Trade Center towers in New York. The fourth aircraft crashed in Pennsylvania after the passengers attacked the hijackers. Seven to ten days before September 11, 2001, bin Laden told appellant they were evacuating the compound because an operation was about to take place. Two days prior to the operation, appellant took bin Laden to Kabul, where they stayed until just after the 9/11 attack. The day after the attack, at dinner, bin Laden confirmed that he was responsible for the 9/11 operation. Subsequently, appellant drove bin Laden to Lahore, a military camp with numerous tunnels and structures for hiding. After a week hiding there with bin Laden, appellant continued to transport bin Laden around Afghanistan, changing locations every few days to help bin Laden escape retaliation by the United States. Shortly after 9/11, appellant drove bin Laden and al-Zawahiri to a camp outside of Kabul where bin Laden made a video talking about Jews, Americans, and jihad. Congress passed the Authorization for Use of Military Force resolution (AUMF) one week after the September 11, 2001 terrorist attacks. Pub.L. No. 107-40, 115 Stat. 224 (2001). The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Id. The President ordered the armed forces to Afghanistan “to subdue al Qaeda and quell the Taliban regime that was known to support it.” Hamdi v. Rumsfeld, 542 U.S. 507, 510, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). Subsequently, United States and allied armed forces engaged in military operations in Afghanistan where appellant was seized on November 24, 2001. II. CHARGE AND SPECIFICATIONS WITH GUILTY FINDINGS Appellant was convicted of two types of providing material support for terrorism. First, he provided material support for carrying out an act of terrorism. Second, he provided material support to an international terrorist organization. See 2007 M.M.C., Part IV, ¶¶ 6(25)bA and 6(25)bB. The five specifications of which he was convicted begin with identical language: In that Hamdan, a person subject to trial by military commission as an alien unlawful enemy combatant, did, in Afghanistan and other countries, from in or about February 1996 to on or about November 24, 2001, in context of or associated with an armed conflict— The specifications continue with individualized allegations as follows: Specification 2: [Hamdan] with knowledge that al Qaeda has engaged in or engages in terrorism, did provide material support or resources, to wit: personnel, himself, to al Qaeda, an international terrorist organization engaged in hostilities against the United States, with the intent to provide such material support and resources to al Qaeda, by becoming a member of the organization and performing at least one of the following [: a.Received training at an al Qaeda training camp; b. Served as a driver for Usama bin Laden transporting him to various locations in Afghanistan; c. Served as Usama bin Laden’s armed bodyguard at various locations throughout Afghanistan; d. Transported weapons or weapons systems or other supplies for the purpose of delivering or attempting to deliver said weapons or weapons systems to Taliban or al Qaeda members and associates. Specification 5: [Hamdan did] provide material support and resources to wit: service or transportation by serving as a driver for Usama bin Laden by transporting him to various locations in Afghanistan knowing that by providing said service or transportation he was directly facilitating communication and planning used for an act of terrorism. Specification 6: [Hamdan did] with knowledge that al Qaeda, an international terrorist organization engaged in hostilities against the United States, had engaged in or engages in terrorism, intentionally provide material support or resources to al Qaeda, to wit: service or transportation to Usama bin Laden by transporting him to various areas in Afghanistan knowing that by providing said service or transportation he was directly facilitating communication and planning used for acts of terrorism. Specification 7: [Hamdan did] provide material support and resources to wit: service as an armed body guard for Usama bin Laden, knowing that by providing said service as an armed bodyguard he was protecting the leader of al Qaeda and facilitating communication and planning used for acts of terrorism. Specification 8: [Hamdan did] with knowledge that al Qaeda, an international terrorist organization has engaged in hostilities against the United States, had engaged in or engages in terrorism, intentionally provide material support or resources, to al Qaeda, to wit: service as an armed body guard for Usama bin Laden by knowing that by providing said service as an armed body guard for Usama bin Laden he was protecting the leader of al Qaeda and facilitating communication and planning used for acts of terrorism. III. PROCEDURAL HISTORY In late 2001, militia forces in Afghanistan captured appellant, and on November 24, 2001, they turned him over to the U.S. military. In 2002, the U.S. military transported him to a military detention facility in Guantanamo Bay, Cuba, where he was held until he was transferred to Yemen in November 2008. On July 3, 2003, the President declared appellant eligible for trial by military commission on unspecified charges pursuant to the President’s Military Order of November 13, 2001. Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 155 (D.D.C.2004). On July 13, 2004, the Appointing Authority referred to trial by military commission one charge with one specification of conspiracy with bin Laden and other “members and associates of. the al Qaeda organization, known and unknown, to commit” the offenses of “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism.” Charge Sheet and Referral, Allied Papers. On April 6, 2004, appellant filed a petition for mandamus or habeas corpus in the U.S. District Court for the Western District of Washington. Hamdan, 344 F.Supp.2d at 155. On July 8, 2004, the Ninth Circuit directed that all habeas cases from Guantanamo “should be heard in the District Court of the District of Columbia.” Id. at 156 (citing Gherebi v. Bush, 374 F.3d 727 (9th Cir.2004)). On September 2, 2004, appellant’s case was docketed in the District Court of the District of Columbia. Id. On November 8, 2004, the District Court stayed appellant’s military commission trial until the Department of Defense complied with various requirements of the Court. Id. at 173-74. On July 15, 2005, a D.C. Circuit panel unanimously reversed the District Court. Hamdan v. Rumsfeld, 415 F.3d 33, 44 (D.C.Cir.2005). On November 7, 2005, the Supreme Court granted certiorari. Hamdan v. Rumsfeld, 546 U.S. 1002, 126 S.Ct. 622, 163 L.Ed.2d 504 (2005). On June 29, 2006, the Supreme Court ruled in Hamdan v. Rumsfeld, 548 U.S. 557, 635, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), that the military commission system then in existence violated Article 36, Uniform Code of Military Justice (UCMJ) and the Geneva Conventions, and that appellant was entitled to the protections of Common Article 3 of the Geneva Conventions (Common Article 3). See pp. 1261-63 infra (discussing Supreme Court decision and quoting Common Article 3). Subsequently, Congress passed the 2006 M.C.A., which President Bush signed into law on October 17, 2006. Remarks on Signing the Military Commissions Act of 2006, 42 Weekly Comp. Pres. Doc. 1831-33 (Oct. 17, 2006). The 2006 M.C.A. established a revised system of military commissions, which limited jurisdiction to alien unlawful enemy combatants (AUECs). 2006 M.C.A. § 948c. See n. 48, infra, (defining the term AUEC). On May 10, 2007, the convening authority referred to trial by military commission one charge each of conspiracy and providing material support for terrorism, citing violations of 10 U.S.C. §§ 950v(b)(28) and 950v(b)(25). Appellant again asked the District Court to stop his trial. On July 18, 2008, the District Court declined to stop his trial, acknowledging the new landscape of military commissions after enactment of the 2006 M.C.A. Hamdan v. Gates, 565 F.Supp.2d 130, 136-37 (D.D.C. 2008). Appellant pleaded not guilty to the two charges. Although the military commission found appellant not guilty of conspiracy and three specifications of providing material support for terrorism, he was found guilty of five specifications of providing material support for terrorism. On August 7, 2008, the military commission sentenced appellant to 66 months of confinement, and the military commission judge awarded confinement credit of 61 months, seven days. In late November 2008, appellant was transferred to his native Yemen for the remaining few weeks of confinement. Appellant’s Brief at 3. In January 2009, Yemeni authorities released appellant. Id. On July 16, 2009, the convening authority approved appellant’s conviction and sentence. IV. ISSUES Appellant urges this court to vacate the findings and sentence of the military commission for three reasons. First, he contends the military commission, established pursuant to Congress’s Article I power to “define and punish ... Offenses against the Law of Nations,” lacked subject matter jurisdiction over the offense of providing material support for terrorism, because it is not a violation of the international law of war. Second, he argues his conviction for that offense is the result of an ex post facto prosecution prohibited by both the U.S. Constitution and international law, because 10 U.S.C. § 950v(b)(25) was signed into law on October 17, 2006, several years after the alleged conduct in the charges occurred. Third, he claims that the 2006 M.C.A. violates the Constitution by making aliens, but not citizens, subject to trial by military commission. Our Court also granted appellant’s motion to be heard on two issues relating to appellant’s second argument, and appellant continued to maintain that his prosecution was barred because the offenses were ex post facto. V. MILITARY COMMISSION PROCEDURES In light of its predicate application of Common Article 3, in 2006 the Supreme Court determined the Presidentially-directed structure for appellant’s original trial in 2004 was inconsistent with the limitations imposed by Congress pursuant to Article 36, UCMJ, 10 U.S.C. § 836, and was therefore illegal. Hamdan, 548 U.S. at 620-25, 126 S.Ct. 2749. The Court considered the President’s authority to convene appellant’s military commission without specific statutory authority to prosecute the charged offense, and addressed the jurisdictional basis of military commissions stating: Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Article I, § 8, and Article III, § 1, of the Constitution unless some other part of that document authorizes a response to the felt need. And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war. The Hamdan Court, quoting Chief Justice Chase in Ex parte Milligan, emphasized the limits on the President’s authority to convene military commissions without more specific statutory authorization stating: But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President.... Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature. Id. at 591-92, 126 S.Ct. 2749 (quoting Ex parte Milligan, 71 U.S. 2, 139-40, 4 Wall. 2, 18 L.Ed. 281 (1866); citation omitted). The Court found appellant’s initial military commission substantially deviated from regular court-martial practice, and the record lacked an adequate demonstration that procedures more similar to courts-martial were not practicable. Id. at 622 & n. 50, 624, 126 S.Ct. 2749. Article 36, UCMJ, required either uniformity or justification for variation from UCMJ procedures, rendering those military commission’s variations illegal. Id. at 625, 126 S.Ct. 2749. Distinguishing the pre-enactment of the UCMJ precedent which supported military commissions like appellant’s, the Court noted, “Prior to the enactment of Article 36(b), [UCMJ,] it may well have been the case that a deviation from the rules governing courts-martial would not have rendered the military commission illegal. Article 36(b), however, imposes a statutory command that must be heeded.” Id. at 625 n. 54, 126 S.Ct. 2749 (internal citations, quotation marks, and emphasis omitted). Justice Breyer suggested the President seek Congressional authorization for military commissions when those procedures are inconsistent with the UCMJ stating, “Indeed, Congress has denied the President the legislative authority [under Article 36, UCMJ] to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” Id. at 636, 126 S.Ct. 2749 (Breyer, Kennedy, Souter, and Ginsburg, JJ., concurring). In response, Congress passed the 2006 M.C.A., and President Bush signed the Act into law. On October 28, 2009, President Obama signed into law the 2009 M.C.A. With the enactment of the 2009 M.C.A., two different Presidents and two different Congresses have spoken on the issue of how military commissions should be conducted. After vigorous Congressional debate, the 2009 M.C.A. did not change the jurisdiction of military commissions nor did it eliminate the offense of providing material support for terrorism. Compare 2006 M.C.A. §§ 948d, 950v(b)(25) with 2009 M.C.A. §§ 948d, 950t(25). The 2006 and 2009 M.C.A.S broadly conformed commission procedures to those under the UCMJ, with several exceptions. Current structure of military commissions is similar to trials in U.S. district courts and courts-martial. The duties of a military commission judge, who is required to have the same qualifications as a trial judge at courts-martial, include deciding pretrial motions and other issues of law and instructing the military commission about the elements of offenses. 2006 M.C.A. §§ 948j(b), 949d, and 9491; Article 26, UCMJ. The accused automatically receives assigned military counsel, who is required to have the same qualifications as military defense counsel at courts-martial, and the accused may be represented by civilian counsel. 2006 M.C.A. §§ 948k(c) and 949c(b); Article 27, UCMJ. The members detailed to a military commission act as the “jury” for findings and sentencing, and they are required to have the same qualifications as all-officer courts-martial panels, “those active duty commissioned officers, who in the opinion of the convening authority are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament.” 2007 M.M.C., Rule for Military Commissions 502(a)(1); MMC (2008), Rule for Courts-Martial 502(a)(1). See also M.C.A. § 948i(b); Article 25, UCMJ. The merits phase of a military commission trial begins with opening statements, and the Government and accused have opportunities to present their cases. Next, both sides make their closing arguments, the military commission judge instructs the commission members about the elements of the offenses, evidentiary matters, and burden of proof. Then the members decide, in closed session, whether the Government has proven the guilt of the accused beyond a reasonable doubt. If the accused is found guilty of any specification, the commission members specify the sentence in a manner similar to trials by court-martial. The accused’s rights at a military commission are briefly listed at n. 171, infra. After a trial resulting in a finding of guilty, the record is reviewed by the convening authority, the U.S. Court of Military Commission Review, and the U.S. Court of Appeals for the District of Columbia Circuit. 2006 and 2009 M.C.A. §§ 950b, 950f, and 950g. The Supreme Court may review by writ of certiorari the final judgment of the United States Court of Appeals for the District of Columbia Circuit.2006 and 2009 M.C.A. § 950g(e). VI. STANDARD OF REVIEW We review the military commission judge’s decision whether the military commission had subject matter jurisdiction de novo because jurisdiction is a question of law. We also consider appellant’s challenges to the constitutionality of the 2006 M.C.A. under a de novo standard of review. We must ensure that findings of guilty are correct in law and fact and the sentence is appropriate. We review factual sufficiency de novo applying a proof beyond reasonable doubt standard. Our Court is required to “weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the military commission saw and heard the witnesses.” 2009 M.C.A. § 950f(d). We also review the sentence to ensure appellant is “sentenced only for the offense or offenses of which he has been found guilty. A proper sentence is one tailored to the particular accused member and the nature and seriousness of the offense.” VII. PROVIDING MATERIAL SUPPORT FOR TERRORISM AS A LAW OF WAR OFFENSE A. Authority to Define Law of War Offenses Appellant contends that Congress exceeded its authority in violation of the Constitution’s Define and Punish Clause, art. I, § 8, cl. 10, when Congress established providing material support for terrorism as an offense in the 2006 M.C.A. We disagree. Provided their actions are taken respecting the Constitution, the President and the Congress have broad discretion when acting during an ongoing conflict in the areas of war powers, foreign relations, and aliens. Nothing in the current appeal serves to challenge the outer limits of the Congress’s authority under the Constitution’s Define and Punish Clause. 1. War Powers The Government has broad powers to safeguard the United States under the Constitution in time of war. In addition to the Define and Punish Clause, the Supreme Court listed nine constitutional sources relevant to authorizing military commissions to support the nation’s war-fighting efforts. One constitutional source of authority for appellant’s military commission stems from the Constitution’s War Powers. In 1948, the Supreme Court emphasized the nation’s war powers include: the power to wage war successfully.... Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Lichter v. United States, 334 U.S. 742, 767 n. 9, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948) (citations omitted). “From the very beginning of its history [the Supreme Court] has recognized and applied 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.” Ex parte Quirin, 317 U.S. 1, 27-28, 63 S.Ct. 2, 87 L.Ed. 3 (1942). Like the law of nations, the law of war must adapt to changing circumstances to be effective. This requirement was recognized during the trials of Nazi war criminals after World War II: The sources of international law which are usually enumerated are (1) customs and practices accepted by civilized nations generally, (2) treaties, conventions, and other forms of interstate agreements, (3) the decisions of international tribunals, (4) the decisions of national tribunals dealing with international questions, (5) the opinions of qualified text writers, and (6) the diplomatic papers. These sources provide a frame upon which a system of international law can be built but they cannot be deemed a complete legal system in themselves. Any system of jurisprudence, if it is to be effective, must be given an opportunity to grow and expand to meet changed conditions. The codification of principles is a helpful means of simplification, but it must not be treated as adding rigidity where resiliency is essential. To place the principles of international law in a formalistic strait-jacket would ultimately destroy any effectiveness that it has acquired. Using its authority to define and punish offenses against the law of nations, Congress approves, within constitutional limitations, jurisdiction of military commissions to try persons for offenses against the law of war. Quirin, 317 U.S. at 26-31, 63 S.Ct. 2. An important tool of the military command, military commissions are “an institution of the greatest importance in a period of war and should be preserved.” Madsen v. Kinsella, 343 U.S. 341, 353 n. 20, 72 S.Ct. 699, 96 L.Ed. 988 (1952) (quoting S.Rep. No. 229, 63d Cong., 2d Sess. 53, 98-99 (1914) (reporting testimony of Brig. Gen. Enoch M. Crowder to the House Committee on Military Affairs in 1912 and to the Sen. Subcommittee on Military Affairs, Revision of the Articles of War, Feb. 7, 1916, vol. I, 40-41)). As Colonel Winthrop, the “Blackstone of Military Law,” explained: [I]n 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 this tribunal derives its original sanction. Its 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. The commission 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. More recently, the Supreme Court reemphasized the necessity for the Judiciary to refrain from review of “issues arisfing] in the context of ongoing military operations conducted by American Forces overseas .... [being] cognizant that ‘courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.’ ” Munaf v. Geren, 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (quoting Dep’t of the Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988)). For example, the Supreme Court declined to permit habeas intervention, over the objection of the executive branch, in an Iraq court case involving a U.S. citizen held by U.S. forces stating: The Judiciary is not suited to second-guess such determinations — determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area. See The Federalist No. 42, p. 279 (J. Cooke ed. 1961) (J. Madison) (“If we are to be one nation in any respect, it clearly ought to be in respect to other nations”). In contrast, the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is. As Judge Brown noted, “we need not assume the political branches are oblivious to these concerns. Indeed, the other branches possess significant diplomatic tools and leverage the judiciary lacks.” Although “deference does not mean abdication,” the Supreme Court has consistently refrained from interfering in congressional decisions made pursuant to the national security clauses. “[J]udicial deference to [a] congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). Similarly, the political branches’ determination of United States’ obligations under international law is a determination about the conduct of American foreign policy. 2. Foreign Affairs Defining and enforcing the United States’ obligations under international law implicitly require the making of extremely sensitive policy decisions. Such decisions will inevitably color our relationships with other nations. Decisions of this nature “are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.... ” Finzer v. Barry, 798 F.2d 1450, 1458-59 (D.C.Cir.1986) (citation omitted), affirmed in part and reversed in part, Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). Under the “political question” doctrine, courts should abstain from cases where there “is found a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Article II of the Constitution establishes that the “President has the lead role ... in foreign policy” and the “vast share of responsibility for the conduct of our foreign relations.” Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414-15, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (citations omitted; internal quotation marks omitted). The President’s constitutional function “uniquely qualifies him to resolve the sensitive foreign policy decisions that bear on compliance” with international agreements. Medellin v. Texas, 552 U.S. 491, 523-24, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (citations omitted; internal quotation marks omitted). The United States Government’s interpretation, construction and application of treaty provisions and responsibilities are “entitled to great weight.” Id. at 513, 128 S.Ct. 1346 (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982)); see also Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961). In addition, the President “has a degree of independent authority to act” in foreign affairs. Am. Ins. Ass’n, 539 U.S. at 414, 123 S.Ct. 2374 (citation omitted). Justice Jackson described the President’s authority for executive action when national security relating to foreign affairs is an issue and Congress has provided express authorization stating: [The President’s authority] is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. [An action] executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. There is no dispute that “the United States has a vital national interest in complying with international law. The Constitution itself attempts to further this interest by expressly authorizing Congress ‘to define and punish.... Offenses against the Law of Nations.’ U.S. Const., Art. I, § 8, cl. 10.” Boos v. Barry, 485 U.S. 312, 323, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). “[T]he Constitution authorized Congress to derive from the often broadly phrased principles of international law a more precise code ... [to comply] with rules governing the international community.” Finzer, 798 F.2d at 1455. There is judicial precedent for the proposition that Congress’s authority is not restrained “by principles of customary international law in its ability to legislate in respect of extraterritorial conduct.” United States v. Yousef, 327 F.3d 56, 109 n. 44 (2d Cir.2003) (citing The Nereide, 13 U.S. 388, 9 Crunch 388, 3 L.Ed. 769 (1815)). Congress has constitutional authority to “manifest [its] will” to establish a rule not necessarily reflective of customary international law “by passing an act for the purpose.” Id. at 109 (quoting The Nereide, 13 U.S. at 423). “[Subsequently' enacted statutes ... preempt existing principles of customary international law— just as they displaced prior inconsistent treaties” and “no enactment of Congress can be challenged on the ground that it violates customary international law.” Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C.Cir.1988). Further, courts are required to defer to Congress’s “unambiguous exercise” of its power to grant jurisdiction to agencies or to courts, and that is true even if such an exercise might be argued to “exceed the limitations imposed by international law.” FTC v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1323 (D.C.Cir.1980) (citation omitted). We will not assume the scope of this principle to be so expansive as to contravene the precedence of U.S. law as provided for by the Constitution. In this case, Congress and the President seek to protect our Nation’s interests in ensuring compliance with the law of war and adherence to the law of nations, including customary international law, through adjudication and punishment of particular crimes against the law of war. The nature of questions concerning the jurisdiction of a military commission to prosecute specific war crimes authorized by statute “requires us to proceed with circumspection” to avoid “adjudicating issues inevitably entangled in the conduct of our international relations.” The protective principle in international law provides a basis for jurisdiction of offenses occurring outside the United States. Recently, the courts have discussed the constitutional authority of Congress to establish and punish drug traffickers apprehended outside U.S. territorial waters under the Maritime Drug Law Enforcement Act (MDLEA). The Supreme Court noted that Congress may constitutionally operate under a broader inherent authority when acting to protect national interests. Youngstown, 343 U.S. at 637, 72 S.Ct. 863. This is so even in instances where the act occurs outside the territory of the United States. In a challenge to the constitutionality of the MDLEA to prosecute noncitizen defendants captured on the high seas, the 1st Circuit Court noted: Under the protective principle of international law, Congress can punish crimes committed on the high seas regardless of whether a vessel is subject to the jurisdiction of the United States. Under the protective principle, [a] state has jurisdiction to prescribe a rule of law attaching legal consequences to conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems. United States v. Vilches-Navarrete, 523 F.3d 1, 21-22 (1st Cir.2008) (Lynch, J., concurring in judgment) (quotation marks and citations omitted). More specifically, in dealing with a direct challenge to constitutionality of the 1990 Antiterrorism Act for murder of U.S. nationals outside the United States, a Federal District Court made the following observation, which provides some authority for concluding the Define and Punish Clause does not limit prosecution of extraterritorial conduct connected to terrorism: [E]ven assuming that the acts described in [the Antiterrorism Act] are not widely regarded as violations of international law, it does not necessarily follow that these provisions exceed Congress’s authority under [Article I, Section 8,] Clause 10. Clause 10 does not merely give Congress the authority to punish offenses against the law of nations; it also gives Congress the power to “define” such offenses. Hence, provided that the acts in question are recognized by at least some members of the international community as being offenses against the law of nations, Congress arguably has the power to criminalize these acts pursuant to its power to de fine offenses against the law of nations.[] See United States v. Smith, 18 U.S. (5 Wheat.) 153, 159, 5 L.Ed. 57 (1820) (Story, J.) (“Offenses ... against the law of nations, cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognized by the common consent of nations.... Therefore ..., there is a peculiar fitness in giving the power to define as well as to punish.”). There is no constitutional prerequisite of universal, international, or scholarly unanimity before Congress may act to subject appellant to trial before a military commission for his support of bin Laden and al Qaeda in the unlawful conflict they are waging against the United States. B. Defining Terrorism and Providing Material Support for Terrorism 1. U.S. Domestic Terrorism Offenses— Title 18 Congress passed prohibitions against terrorism in 1996, including providing material support for terrorism under 18 U.S.C. §§ 2339A and 2339B. Congress made specific findings emphasizing the importance of combating terrorism under multiple specific powers, interests, and concerns. Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 301, 110 Stat. 1247, note following 18 U.S.C. § 2339B (Findings and Purpose), and § 324, 110 Stat. 1255, note following 18 U.S.C. 2339A (Findings) (Apr. 24, 1996). See also Holder v. Humanitarian Law Project, 561 U.S. -, 130 S.Ct. 2705, 2712, 2724-26, 2729, 2733, 2735, 177 L.Ed.2d 355 (2010) (citing provisions from Congress’s specific findings in § 301). Congress described the purpose and made the following specific findings for AEDPA § 301: (a) Findings. The Congress finds that — (1) international terrorism is a serious and deadly problem that threatens the vital interests of the United States; (2) the Constitution confers upon Congress the power to punish crimes against the law of nations and to carry out the treaty obligations of the United States, and therefore Congress may by law impose penalties relating to the provision of material support to foreign organizations engaged in terrorist activity; (3) the power of the United States over immigration and naturalization permits the exclusion from the United States of persons belonging to international terrorist organizations; (4) international terrorism affects the interstate and foreign commerce of the United States by harming international trade and market stability, and limiting international travel by United States citizens as well as foreign visitors to the United States; (5) international cooperation is required for an effective response to terrorism, as demonstrated by the numerous multilateral conventions in force providing universal prosecutive jurisdiction over persons involved in a variety of terrorist acts, including hostage taking, murder of an internationally protected person, and aircraft piracy and sabotage; (6) some foreign terrorist organizations, acting through affiliated groups or individuals, raise significant funds within the United States, or use the United States as a conduit for the receipt of funds raised in other nations; and (7) foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct. (b) Purpose. The purpose of this subtitle [for full classification, consult USCS Tables volumes] is to provide the Federal Government the fullest possible basis, consistent with the Constitution, to prevent persons within the United States, or subject to the jurisdiction of the United States, from providing material support or resources to foreign organizations that engage in terrorist activities. In AEDPA § 324, the Congress found that: (1) international terrorism is among the most serious transnational threats faced by the United States and its allies, far eclipsing the dangers posed by population growth or pollution; (2) the President should continue to make efforts to counter international terrorism a national security priority; (3) ... the President should undertake immediate efforts to develop effective multilateral responses to international terrorism as a complement to national counter terrorist efforts; [and;] (4) the President should use all necessary means, including covert action and military force, to disrupt, dismantle, and destroy international infrastructure used by international terrorists, including overseas terrorist training facilities and safe havens.... All of those same necessary concerns, plus the necessity to successfully prosecute the ongoing conflict, are present in the 2006 M.C.A.’s codification of the offense of providing material support for terrorism under § 950v(a)(25). Providing material support for terrorism (18 U.S.C. §§ 2339A, 2339B) was the basic model for the 2006 M.C.A. offense bearing the same name. On September 13, 1994, Congress enacted 18 U.S.C. 2339A. Title 18 U.S.C. 2339A was amended on April 24, 1996 to read: (a) OFFENSE. — Whoever, within the United States, provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of section 32, 37, 81, 175, 351, 831, 842(m) or (n), 844(f) or (i), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, or 2340A of this title or section 46502 of title 49, or in preparation for, or in carrying out, the concealment from the commission of any such violation, shall be fined under this title, imprisoned not more than 10 years, or both. (b) DEFINITION. — In this section the term, “material support or resources” means currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials. On April 24, 1996, Congress enacted 18 U.S.C. § 2339B, “Providing material support or resources to designated foreign terrorist organizations,” which included extraterritorial jurisdiction and provided: (a) PROHIBITED ACTIVITIES.— (1) Unlawful conduct. — Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both. A1 Qaeda was not designated as a “foreign terrorist organization” as required for 18 U.S.C. 2339B(a) until October 8, 1999. Under U.S. domestic law, members of al Qaeda have violated federal statutes relating to terrorism. Title 18 U.S.C. § 2331(1) defines “international terrorism” to be activities that: (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended — (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum. On April 24, 1996, Congress enacted the AEDPA of 1996, 18 U.S.C. § 2332b, “Acts of terrorism transcending national boundaries.” AEDPA includes extraterritorial jurisdiction under 18 U.S.C. § 2332b(e) for violations of 18 U.S.C. § 2332b(a), which now provides: (a) PROHIBITED ACTS.— (1) OFFENSES. — Whoever, involving conduct transcending national boundaries and in a circumstance described in subsection (b) — [listing jurisdictional basis for U.S. prosecution] (A) kills, kidnaps, maims, commits an assault resulting in serious bodily injury, or assaults with a dangerous weapon any person within the United States; or (B) creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States; in violation of the laws of any State, or the United States, shall be punished as prescribed in subsection (c). (2) Treatment of threats, attempts and conspiracies. Whoever threatens to commit an offense under paragraph (1), or attempts or conspires to do so, shall be punished under subsection (c). Section 2332b(g)(5), defines the term “Federal crime of terrorism” to mean an offense that — “(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” and this definition is included in numerous offenses listed in § 2332b(g)(5)(B), several of which are particularly relevant to al Qaeda’s attacks upon U.S. citizens, diplomatic personnel, and facilities. 2. Congressional Finding that Providing Material Support for Terrorism is a Traditional Law of War Offense The 2006 M.C.A. § 950p defines preexisting violations of the law of war in its “Statement of substantive offenses” as follows: (a) PURPOSE. — The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commission. (b) EFFECT.- — -Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter. After several witnesses discussed the issue of whether the M.C.A. offense of providing material support for terrorism could be retroactively applied to AUECs, Congress decided the M.C.A. offense was a recognized law of war violation. The 2009 M.C.A. § 950p(d) states: (d) EFFECT. — The provisions of this subchapter codify offenses that have traditionally been triable by military commission. This chapter does not establish new crimes that did not exist before the date of the enactment of this subchapter, ... but rather codifies those crimes for trial by military commission. Because the provisions of this subchapter codify offenses that have traditionally been triable under the law of war or otherwise triable by military commission, this subchapter does not preclude trial for offenses that occurred before the date of the enactment of this sub-chapter, as so amended. 3. The M.C.A. and Providing Material Support for Terrorism The 2006 and 2009 versions of the M.C.A. contained identical language concerning the offense of providing material support for terrorism. Compare 2006 M.C.A. § 950v(b)(25) with 2009 M.C.A. § 950t(25). The 2007 M.M.C. has drawn the elements for this offense from Section 950v(b)(25) of the 2006 M.C.A., which reads: (25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.— (A) OFFENSE. Any person subject to this chapter [10 USCS §§ 948a et seq.1 who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24) [of this section] ), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter [10 USCS §§ 948a et seq.] may direct. (B) MATERIAL SUPPORT OR RESOURCES DEFINED. — In this paragraph, the term “material support or resources” has the meaning given that term in section 2339A(b) of title 18. 4. M.M.C.’s List of Elements for Appellant’s Specifications Appellant was convicted of Specifications 5 and 7 of Charge II, providing material support for an act of terrorism. The 2007 M.M.C., Part IV, ¶ 6(25)bA, lists the particular elements as follows: A. (1) The accused provided material support or resources to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)); (2) The accused knew or intended that the material support or resources were to be used for those purposes; and (3) The conduct took place in the context of and was associated with an armed conflict. Appellant was convicted of Specifications 2, 6, and 8 of Charge II, providing material support for an international terrorist organization. The 2007 M.M.C. in Part IV, ¶ 6(25)bB, lists the particular elements as follows: B. (1) The accused provided material support or resources to an international terrorist organization engaged in hostilities against the United States; (2) The accused intended to provide such material support or resources to such an international terrorist organization; (3) The accused knew that such organization has engaged or engages in terrorism; and (4) The conduct took place in the context' of and was associated with an armed conflict. b. Elements. The elements of this offense can be met either by meeting (i) all of the elements in A, or (ii) all of the elements in B, or (iii) all of the elements in both A and B. 5. Criminal Intent and Wrongfulness It is not appellant’s conduct in isolation that constitutes a law of war violation triable by military commission. Rather, it is his knowledge, intent, and conduct, in support of terrorism, and in the specific context of a conflict triggering application of U.S. treaty obligations per Common Article 3, which make it cognizable under the 2006 M.C.A. In enacting the 2006 M.C.A., Congress circumscribed the capacity of the military to unilaterally interpret the law of war and craft law of war offenses and punishments in connection with al Qaeda and terrorism offenses. The charges at bar are not the exercise of flat or expediency by the executive branch; they are the product of closely prescribed statutes of limited application encompassing the peculiarities of the modern geopolitical environment. First, the 2006 M.C.A. strictly limited jurisdiction of military commissions to AUECs, as defined under the 2006 M.C.A. §§ 948a(l)(A) and 948a(3). Our Court explained in 2007: This critical determination of “lawful” or “unlawful” combatant status is far more than simply a matter of semantics.... [U]nder the well recognized body of customary international law relating to armed conflict, and specific provisions of GPW III, lawful combatants en