Full opinion text
BEFORE THE COURT EN BANC, BRAND, PRICE, SIMS, GALLAGHER, PERLAK, ORR, Appellate Military Judges. PUBLISHED OPINION OF THE COURT PRICE, Judge: I. INTRODUCTION.......................................................1155 II. PROCEDURAL HISTORY ..............................................1155 III. JURISDICTIONAL BASIS FOR REVIEW................................1157 IV. ISSUES ON APPEAL...................................................1158 A. Result of Court’s Review............................................1158 V. STATEMENT OF FACTS ...............................................1159 A. The Al-Qaeda Plan .................................................1159 B. Appellant’s Background, Conduct, and Trial ..........................1161 VI. STANDARD OF REVIEW...............................................1164 VII. MILITARY COMMISSION SUBJECT MATTER JURISDICTION...........1164 A. Introduction........................................................1164 B. Issue Presented.....................................................1166 C. The Law...........................................................1167 1. Military Commissions Act of 2006.................................1168 2. Congressional Authority to Define and Punish Offenses Against the Law of Nations............................................1169 3. The Law of Nations .............................................1173 4. The Law of Armed Conflict ......................................1174 a. Combatants — Lawful and Unlawful...........................1177 (1) Alien Unlawful Enemy Combatant (AUEC) — Common Element 1.............................................1182 (a) AUEC and the Law of Armed Conflict.................1184 (b) Irregular Warfare....................................1184 (c) U.S. Army 1914 and 1956 Manuals......................1186 (d) Terrorists............................................1188 (e) Conclusion ..........................................1188 (2) Conduct in the Context of and Associate d with an Armed Conflict — Common Element 2....................1188 VIII. PROVIDING MATERIAL SUPPORT FOR TERRORISM, EX POST FACTO, AND INSTRUCTIONAL ERROR...............................1190 A. Providing Material Support for Terrorism — an Offense Under the Law of Armed Conflict............................................1191 1. The Charge.....................................................1191 2. The 2006 M.C.A. and 2007 M.M.C..................................1192 a. Material Support or Resources...............................1193 b. Terrorism defined...........................................1194 3. Non-U.S. Domestic Providing Material Support for Terrorism- Type Laws....................................................1198 B. Discussion..........................................................1202 1. Criminal Organizations — International Military Tribunal at Nuremburg...................................................1203 2. Control Council 10 — Nuremburg Military Tribunals................1205 3. Joint Criminal Enterprise........................................1210 C. Analysis............................................................1214 D. Complicity.........................................................1215 E. Aiding the Enemy...................................................1216 F. Ex Post Facto......................................................1218 G. Instructional Error.................................................1218 IX. CONSPIRACY TO VIOLATE THE LAW OF WAR AS AN OFFENSE TRIABLE BY MILITARY COMMISSION..............................1220 A. Conspiracy — The Charge and Specification............................1222 B. Conspiracy under the 2006 M.C.A. and 2007 M.M.C.....................1223 C. Analysis............................................................1223 1. Non-U.S. Conspiracy-Type Laws .................................1227 D. Conclusion.........................................................1230 X. SOLICITATION AS AN OFFENSE TRIABLE BY MILITARY COMMISSION........................................................1231 A. Solicitation — The Charge and Specification...........................1231 B. Solicitation under the 2006 M.C.A. and 2007 M.M.C....................1231 C. Analysis............................................................1232 1. Solicitation-Type Laws..........................................1235 XI. FIRST AMENDMENT ISSUES..........................................1242 A. Discussion..........................................................1242 B. The Military Commissions Act and the First Amendment..............1245 C. Potential Chilling Effect on U.S. Citizens.............................1250 D. Military Commission Judge’s Instructions ............................1250 E. Conclusion.........................................................1251 XII. 2006 M.C.A. AND BILL OF ATTAINDER.................................1251 A. Bills of Attainder and Legislative Analysis............................1251 1. Legislatively Determines Guilt...................................1252 2. Legislatively Inflicts Punishment.................................1252 a. Historical Test..............................................1253 b. Functional Test.............................................1254 c. Motivational Test ...........................................1254 (1) Specificity of Identification...............................1255 (2) Lack of Judicial Trial....................................1256 B. Conclusion.........................................................1256 XIII. EQUAL PROTECTION .................................................1256 XIV. WAIVER OF ASSIGNMENTS OF ERROR I, III to V......................1256 A. The Law...................... 1257 B. Analysis............................................................1258 XV. SENTENCE APPROPRIATENESS ......................................1258 A. Applicable Law.....................................................1259 B. Analysis............................................................1260 1. The Offense and the Offender....................................1260 2. Closely-Related Cases...........................................1263 XVI. CONCLUSION..........................................................1264 Judge SIMS concurring......................................:...........1264 1. INTRODUCTION In this appeal by Ali Hamza Ahmad Suliman al Bahlul, we review for the second time a conviction under the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006), codified at 10 U.S.C. §§ 948a-950w (2006 M.C.A.) relating to the military commission trial of appellant, a citizen of Yemen. A military commission comprised of military members determined that appellant was an alien unlawful enemy combatant, see infra nn. 23, 24, 53, and contrary to his pleas convicted him of: (1) providing material support and resources, including himself to al Qaeda, an international terrorist organization then engaged in hostilities with the United States with exceptions; (2) conspiring with Usama bin Laden and other members and associates of al Qaeda to, inter alia, commit murder, attack civilians and civilian objects in violation of the law of war, commit terrorism, and provide material support for terrorism with exceptions; . and (3) soliciting various persons to commit these same offenses in violation of 2006 M.C.A. §§ 950v(b)(25), 950v(b)(28), and 950u. The members sentenced appellant to confinement for life and the convening authority approved the sentence. II. PROCEDURAL HISTORY One week after the September 11, 2001, attacks on the United States, Congress passed the Authorization for Use of Military Force resolution (AUMF). Pub. L. No. 107-40, 115 Stat. 224 (2001). The AUMF authorized 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). In 2001, appellant was captured in Pakistan and turned over to the U.S. military. In 2002, he was transported to a military detention facility in Guantanamo Bay, Cuba, where he remains confined. In July 2003, the President declared appellant eligible for trial by military commission on unspecified charges pursuant to his Military Order. On February 23, 2004, the Deputy Appointing Authority referred to trial by military commission one charge and an accompanying specification alleging al Bahlul conspired with Usama 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.” 2004 Charge Sheet and Referral. On November 8, 2004, a Federal District Court stayed a military commission trial until the Department of Defense complied with various requirements of the Court. Hamdan v. Rumsfeld, 344 F.Supp.2d 152, 173-74 (D.D.C.2004). The same issues were present in appellant’s case, and on December 10, 2004, the Appointing Authority directed that appellant’s case be “held in abeyance” pending the outcome of the appeal filed in Hamdan. 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 scheme then in existence violated Article 36, Uniform Code of Military Justice (UCMJ) and did not satisfy the requirements of Common Article 3 of the Geneva Conventions. Following the Supreme Court’s decision in Hamdan, the military commission judge abated the proceedings in appellant’s case. Tr. 8. Congress subsequently passed the 2006 M.C.A., which President Bush signed into law. 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. On February 26, 2008, the convening authority referred appellant’s charges and specifications to trial by military commission. Trial began on May 7, 2008. Following trial on the merits, during which appellant mounted no substantive defense, the military commission returned findings of guilty on each charge and specification and on November 3, 2008, sentenced appellant to confinement for life. On June 3, 2009, the convening authority approved the findings and sentence and ordered the sentence executed. Congress subsequently passed the Military Commissions Act of 2009 (2009 M.C.A.), which President Obama signed into law. Presidential Remarks on Signing the National Defense Authorization Act for Fiscal Year 2010, (Oct. 28, 2009) Govt. Printing Office DCPD Number: DCPD200900858. The 2009 M.C.A. revised portions of the 2006 M.C.A., including expansion of this Court’s scope of review. We recently decided the first direct appeal of a conviction by military commission convened under the 2006 M.C.A. United States v. Hamdan, 801 F.Supp.2d 1247, 2011 WL 2923945 (USCMCR June 24, 2011). In Hamdan, we concluded that the charged conduct of providing military support for terrorism was punishable under the law of armed conflict from at least February 1996, when Hamdan joined al Qaeda, that a rational basis existed for disparate treatment of aliens in the 2006 and 2009 M.C.A., and that such disparate treatment did not violate the Equal Protection Clause of the Constitution. III. JURISDICTIONAL BASIS FOR REVIEW The Court of Military Commission Review was authorized by Congress in the 2006 M.C.A. and established by the Secretary of Defense. The 2006 M.C.A. provides for “automatic referral” for review by this Court “each case in which the final decision of a military commission (as approved by the Convening Authority) includes a finding of ‘guilty.’ ” The 2006 M.C.A. limited our jurisdiction to act “to matters of law” and “[a] finding or sentence of a military commission under this chapter may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” 2006 M.C.A. §§ 950f(d) and 950a(a). In section 950f(a) of the 2009 M.C.A., Congress designated our Court as the United States Court of Military Commission Review, and significantly expanded the scope of our review authority in cases automatically referred for appellate review. In addition to the authority to act with respect to “matters of law,” the 2009 M.C.A. § 950f(d), requires us to review the record for factual sufficiency and sentence appropriateness: The Court may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the military commission saw and heard the witnesses. This expanded authority mirrors that exercised by the military service Courts of Criminal Appeals in review of courts-martial in which the approved sentence includes death, a punitive discharge, or confinement for one year or more, an authority characterized as an “awesome, plenary, de novo power of review.” United States v. Cole, 31 M.J. 270, 272 (C.M.A.1990) (citing 10 U.S.C. § 866). We apply the standards and scope of review in the 2009 M.C.A. §§ 950a(a) and 950f(d), as it is more favorable to appellant. See Hamdan, 801 F.Supp.2d at 1264 n. 15, 2011 WL 2923945 at *9 n. 15 (citations omitted). We have jurisdiction over this case because the final decision of the military commission, as approved by the convening authority, includes findings of “guilty.” See supra n. 9. IV. ISSUES ON APPEAL Appellant raises six assignments of error that merit discussion. First, that his convictions must be reversed as none of his charged offenses constitute war crimes triable by military commission. Second, that his conviction for providing material support for terrorism must be reversed as that charge violated the Ex Post Facto Clause of the U.S. Constitution and the term “material support” was erroneously defined by the military commission judge. Third, that he was convicted on the basis of political speech in violation of the First Amendment of the U.S. Constitution. Fourth, that the 2006 M.C.A. is an unconstitutional Bill of Attainder. Fifth, that the 2006 M.C.A. violates the Constitution’s Equal Protection Clause by making aliens, but not citizens, subject to trial by military commission. Sixth, that a sentence of life imprisonment is inappropriately severe and disproportionate to the sentences of closely-related defendants. We specified two issues. A. Result of Court’s Review We have carefully considered the record, the various pleadings and oral arguments of the parties. We hold that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of appellant occurred. 2009 M.C.A. §§ 950a(a) and 950f(d). Y. STATEMENT OF FACTS Appellant, a self-described “officer” in al Qaeda, joined that group with knowledge that al Qaeda engaged in terrorism and did so in complete agreement with Usama bin Laden’s declarations that all Americans and anyone in the United States were legitimate targets of armed attack. Following completion of al Qaeda’s military-like training, appellant met personally with bin Laden, discussed al Qaeda’s view of itself as a government in exile for the Muslim world engaged in jihad (or “holy war”) with the United States, and pledged his personal fealty, including his willingness to die for bin Laden and al Qaeda. Bin Laden then assigned appellant to al Qaeda’s media office and later as his personal assistant/secretary for public relations. Appellant’s conduct in those positions and membership in al Qaeda provide the factual basis for his convictions of: (1) providing material support and resources to al Qaeda; (2) conspiring with bin Laden and others to, inter alia, commit murder, attack civilians and civilian objects, commit terrorism, and provide material support for terrorism; and (3) soliciting various persons to commit those same offenses. A brief review of al Qaeda’s history, organization and goals is essential to put appellant’s conduct in context. A. The Al-Qaeda Plan In December 1979, the former Soviet Union invaded Afghanistan. The Soviets were soon opposed by the mujahideen (self-proclaimed Muslim “holy warriors”), including native Afghans and volunteers for the proclaimed jihad against the Soviet Union. By 1985 radical Palestinian cleric Dr. Abdullah Azzam emerged as leader of the Arab recruits. “Azzam and his supporters schemed to use the conflict in Afghanistan as a means to create a multinational Muslim army to wipe out secular regimes across the Middle East, Asia and North Africa,” and to establish an Islamic Caliphate. “In April 1988, Azzam published [a] manifesto, titled ‘Al-Qaida’, meaning ‘The Base’ or ‘the Solid Foundation,’ ” in which he advocated armed struggle: Azzam reasoned that every revolutionary ideology needs a rugged, elite cadre to protect it, inspire it, and lead it to ultimate victory .... Azzam issued what he referred to as “the final call”: “We shall continue the Jihad no matter how long the way is until the last breath and the last beating of the pulse or we see the Islamic state established.” “[Mjillionaire Saudi exile Usama Bin Laden ... provided ... financing and logistical support to Azzam’s organization and soon ... became a dominant force among the Arabs fighting in Afghanistan .... On September 10, 1988, Azzam, bin Laden, and mujahideen convened the first meeting of al Qaeda.” The leaders of al Qaeda formed a Shura (Advisory Council) and divided operations “amongst various wings, including a military committee, a security committee, a financial committee, a religious legal committee, a political committee, and a media committee.” Following withdrawal of Soviet troops from Afghanistan, the varying mujahideen factions turned on each other and Dr. Azzam died. In 1991, facing collapse of the armed struggle in Afghanistan, bin Laden moved to Sudan, set up business enterprises and sponsored overseas terrorist activities. Al Qaeda’s leaders were angered by-American troop presence in Saudi Arabia following the 1991 Persian Gulf War and “believed that Islamic doctrine prohibits the presence of infidels, or non-Muslims, in the ‘Land of the Two Holy Places’ ..., the Arabian Peninsula, home to the sacred Muslim cities of Mecca and Medina.” In December 1991, following a “fatwa” (religious edict) issued on behalf of al Qaeda condemning the presence of U.S. military peacekeepers, militants attempted to attack U.S. soldiers in Yemen who were en route to Somalia peacekeeping duties. In 1993, bin Laden announced 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.” Later that year, Somali militiamen, some of whom were al Qaeda-trained, shot down two U.S. Blackhawk helicopters over Mogadishu, and 18 U.S. servicemen were killed in the ensuing battle. In 1996, the Sudanese regime ordered bin Laden and his associates out of Sudan. They relocated to Afghanistan at the invitation of the Taliban. In August 1996, bin Laden published a “declaration of war” in which he wrote: It is now clear that those who claim that the blood of the American soldiers (the enemy occupying the land of the Muslims) should be protected are merely repeating what is imposed on them by the regime; fearing the aggression and interested in saving themselves. It is a duty now on every tribe in the Arab Peninsula to fight, Jihad, in the cause of Allah and to cleanse the land from those occupiers. Allah knows that thefir] blood is permitted (to be spilled) and their wealth is a booty to those who kill them.... Death is better than life in humiliation! ... My Muslim Brothers of The World: Your brothers ... are calling upon your help and asking you to take part in fighting against the enemy — your enemy and their enemy — the Americans and the Israelis. They are asking you to do whatever you can ... to expel the enemy, humiliated and defeated, out of the sanctities of Islam. In February 1998, bin Laden and like-minded allies founded the World Islamic Front Against Jews and Crusaders and signed a joint fatwa requiring all able Muslims to kill Americans — whether civilian or military — anywhere they can be found and to “plunder their money.” On May 29, 1998, bin Laden issued a second declaration entitled “The Nuclear Bomb of Islam,” in which he stated that “it is the duty of the Muslims to prepare as much force as possible to terrorize the enemies of God.” On August 7, 1998, U.S. embassies in Kenya and Tanzania were suicide-bombed by al Qaeda operatives, resulting in 257 deaths including 12 Americans. On August 20, 1998, the U.S. responded by striking terrorist training camps and a suspected chemical weapons laboratory. In October 1999, the U.S. Government officially designated al Qaeda a foreign terrorist organization, making it unlawful for anyone in the United States to provide material support to al Qaeda, and froze al Qaeda linked resources held by U.S. financial institutions. In January 2000, al Qaeda attempted an attack on the USS THE SULLIVANS near Yemen; however, the attack boat was overloaded and sank. That boat was recovered and on October 12, 2000, disguised as a friendly civilian boat welcoming the USS COLE to port, suicide-detonated against the COLE, killing 17 American sailors, wounding 39 others, and extensively damaging the ship. On September 11, 2001, 19 men recruited by al Qaeda hijacked four commercial airliners in the United States and intentionally crashed one airliner into the Pentagon in Washington, D.C. and two into the World Trade Center in New York. The fourth aircraft crashed in Pennsylvania after the passengers attempted to retake the plane from the hijackers. Thousands of Americans and others were killed as a result of the September 11, 2001 attacks. B. Appellant’s Background, Conduct, and Trial Born in Yemen on September 11, 1969, appellant is well-educated and speaks some English. In the early 1990s he was inspired by Azzam’s speeches and traveled to Afghanistan to fight the Soviet-supported regime. He then returned to Yemen. In the late 1990s, appellant approached a known al Qaeda member in Yemen about returning to Afghanistan. He used money and a visa provided by al Qaeda operatives and traveled to Afghanistan. After completing military-like training, appellant talked to and pledged bayat to bin Laden and joined al Qaeda. Bin Laden then assigned him to al Qaeda’s media office. Following the October 2000 attack on the USS COLE, bin Laden instructed appellant to prepare a video exploiting that attack for recruiting purposes. This full-length video, entitled “The Destruction of the American Destroyer Cole,” is comprised of extensive footage intended to inflame the viewers and incite them to migrate to Afghanistan to train for, and actively participate in, violent jihad against the United States. Appellant was proud of the video, claiming it was al Qaeda’s best propaganda video at that time, and that it “was influential” and produced “a good result” for al Qaeda. Tr. 534. Translated into multiple languages and widely distributed outside Afghanistan, the video demonstrated power to incite persons with no prior connection to al Qaeda to action. The video is organized into three parts: “The Problem,” “The Causes,” and “The Solution.” “The Problem” is appellant’s portrayal of the Muslim nation or “Ummah” and includes emotive footage of purported Muslims, particularly women and children, being mistreated and killed. It also depicts the presence of U.S. diplomats and troops in the Middle East as part of “The Problem.” The video identifies “The Causes” as diplomatic relationships between the United States and regional leaders and an alliance between the United States and Israel. “The Solution” includes incensing images of violence against women and children, interspersed with images of world leaders including American Presidents laughing. The horrific and infuriating images are shown repeatedly with religious chanting and “a cappella ” singing, known as “anasheed,” audible in the background to increase the emotional impact of the video. The anasheed extol the virtues of martyrdom (suicide bombings), of sacrifice, and of combat, somberly chanting lyrics such as “revolt, revolt ... with blood, with blood.” Tr. 809. The anasheed instructs the listener to trade blood for blood and destruction for destruction, while showing images of violence against women and children dying, then images of recruits training in al Qaeda camps and terrorist attacks on Americans, and finally joyful Muslims celebrating in the streets. After highly emotional scenes of Muslims suffering attributed to “Western infidels” and complicit Middle Eastern regimes, the video asserts violent jihad as the solution. It calls on viewers to come to Afghanistan to train for, and actively participate in, violent jihad against the United States. During training camp scenes, bin Laden says, “the outcome of this training is jihad for the cause of God.... [T]hey are waiting for our youths to annihilate America and Israel.” Prosecution Ex. 31 at 15. He continues, “[t]he only way to eradicate the humiliation and disbelief that has overcome the Land of Islam is jihad, bullets, and martyrdom operations.” Id. at 16. Toward the end of the video, bin Laden declares, “[w]e are terrorists, and terror is an obligation in the Book of God. Let the West and East know that we are terrorists and we strike fear.” Id. at 18. Appellant explained the importance he and bin Laden ascribed to appellant’s role as a “media man” in supporting al Qaeda’s objectives: I was bored when I was in Afghanistan and working on computers and papers and cameras and TVs; and I asked bin Laden for a martyrdom operation, suicide operation; but he refused. The reason why he refused was that he— that there are many other people other than you or so — the recruiting people through media gets you more people than suicidal attacks. Even in America, in every country in the world, media is the master ministry or department; and it has strategic goals, just like the United Nations and Internal Affairs and the Treasury Department; and God bless us, his speech was right. Tr. 195. After work on the video was completed, bin Laden appointed appellant as his personal assistant and secretary for public relations. Appellant assisted bin Laden in preparing public statements. He operated and maintained data processing equipment, arranged for Mohammad Atta and Ziad al Jarrah (two 9/11 hijackers/pilots) to pledge fealty to bin Laden, and prepared propaganda declarations styled as “martyr wills” to motivate those individuals to commit the 9/11 attacks and document al Qaeda’s role in those attacks. Before the 9/11 attacks bin Laden ordered al Qaeda’s Kandahar site evacuated, and told appellant to ready the media van, which included computer, satellite, television, and radio communications equipment. Appellant evacuated Kandahar and traveled in a vehicle convoy, which included bin Laden and other al Qaeda leaders. On 9/11, appellant was unable to obtain a video signal, so bin Laden and other al Qaeda leaders first heard reports of the 9/11 attacks via a radio operated by appellant. At bin Laden’s request, appellant researched the economic impact of the 9/11 attacks and provided the results of his research to bin Laden. Following his capture, appellant voluntarily spoke with multiple investigators regarding his background and role in al Qaeda, including his membership, status as an officer, role in production of the COLE video, and belief in bin Laden’s 1996 “declaration of war.” Appellant advised investigators that he was willing to discuss his own actions but unwilling to discuss those of others. Prosecution Ex. 13 at 4. He admitted committing each charged act. He also wrote several letters while detained at Guantanamo Bay to al Qaeda leaders renewing his pledge of bayat, restating his resolve to fight to the end, and reaffirming his belief that war is the only way to secure al Qaeda’s objectives. Prosecution Ex. 15-18. In Prosecution Ex. 18, he stated: The days go on, the war will wage, the conflict will continue, the blood did not and will never dry, and the fate of their [American] utmost interests of their civilization is tied to and mortgaged by our Islamic region ... They and their strategic allies have opened a big door that will not be closed until we regain our occupied holy places — the war is long and we are still at the beginning ... democracy is on its death bed and it is about to succumb to its demise. Appellant objected to the legitimacy of the military commission that tried him and indicated his intent to boycott the proceedings. He also objected to representation by counsel detailed by the Chief Defense Counsel of Military Commissions. He expressed a desire to proceed pro se and represent himself. Appellant also expressed his aspiration to absent himself from all sessions of the military commission, except he wanted to attend the final session to hear announcement of his sentence. The military commission judge advised appellant that his voluntary absence would constitute “waiver of the right to be present,” that his absence “could negatively impact the presentation of [his] case,” and that his absence would be inconsistent with representing himself and would provide a basis to terminate his proceeding pro se. Appellant conveyed his understanding stating “[t]his is my final decision, and it’s voluntary[ ]y and I’ve chosen that.” Tr.78. Following this colloquy, appellant absented himself from the next session of court on August 15, 2008. The military commission judge then noted appellant’s voluntary absence, particularly with respect to the pro se issue. Major Frakt, appellant’s detailed defense counsel, represented to the military commission judge that he discussed his willingness to “defend [appellant] in the manner in which [appellant] desired to be defended.” Tr. 80. Major Frakt also confirmed he had discussed the pro se representation issue with appellant, that appellant understood the impact of his voluntary absence from proceedings on his request to proceed pro se, and then Major Frakt related that appellant expressed “his very strong desire to return to the detention facility and to have no further communication with counsel of any kind.” Tr. 80. In light of appellant’s stated boycott and voluntary absence, the military commission judge ruled that detailed defense counsel, Major Frakt, would continue to represent appellant. Appellant’s defense counsel then commented, “In accordance with Mr. A1 Bahlul’s wishes, defense demands, under Rule for Military Commission 707, a speedy trial. The defense waives all pretrial motions of any kind and is prepared to go to trial at the soonest possible date.” Tr. 85. Appellant’s posturing, equivocation about his exercise of the right to counsel and proceeding pro se, and variable attendance have combined to create a significant ambiguity in the record. Detailed defense counsel, whose services were ostensibly rejected by appellant at the preceding session of court, appeared on August 15, 2008, without appellant present, putatively representing appellant’s wishes. This ambiguity informs our treatment of the matters of waiver and forfeiture, discussed in Part XIV, infra at pp. 1256-58. Appellant attended the next session of court on September 24, 2008, and expressed his preference to attend the trial if such attendance would not forfeit his boycott. The military commission judge informed appellant that his attendance would not forfeit his stated boycott, and appellant attended all subsequent proceedings. Appellant entered pleas of not guilty to all charges and specifications. With the exception of administrative matters and appellant’s unsworn statement and related documents presented during the presentencing hearing, appellant presented no defense, made no closing argument, interposed no objection to prosecution evidence, conducted no cross-examination of prosecution witnesses, and presented no defense evidence. In an unsworn statement to the members during the presentencing hearing, appellant acknowledged his membership in al Qaeda, asserting “we are the only ones on earth who will stand against you,” the United States was responsible for the deaths of innocent civilians for 50 years and as such “we give you the same cup you have given us[.]” Tr. 968-69. He declared that al Qaeda does not submit to any Arab government or to international law, only to God. He also commented that 9/11 was the consequence of U.S. Government policies, and he expressed his willingness to die in prison and belief that al Qaeda will prevail in its war against the United States. He then cited a poem penned by bin Laden named “The Storm of the Airplanes”: Then the war is ongoing. It’s not going to be stopped and until you become fair and go back to your country and pull your ships from the peninsula ... As long as you occupy the Islam island in a direct way or an indirect way and you are around it from the sea and by land and by air, we will continue the war.... [A]s a media man in al Qaeda, we actually take the words into action; and the members of 9/11, they were all media men before they became military men; and I was number 20, but bin Laden refused. My presence here today, I tell you: Sentence me the way you choose. It’s not going to stop us from saying the word of truth. Any power-we consider America as a tiger made out of paper. Yes, there is a weight for its force, but we are not scared of it. We are only scared of his almighty God.... Tr. 978-79. The members sentenced appellant to confinement for life. VI. STANDARD OF REVIEW On appeal, appellant challenges the authority of Congress to legislate and the President, or his designee, to implement the 2006 M.C.A., on a number of constitutional grounds. He also alleges that the military commission judge misapplied the law and that the sentence awarded is inappropriately severe. Whether a military commission may exercise jurisdiction over the charged offenses is a question of law we review de novo. Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 919 (D.C.Cir.2008); Hamdan, 801 F.Supp.2d at 1263-65, 2011 WL 2923945 at *9; United States v. Khadr, 717 F.Supp.2d 1215, 1220 (USCMCR 2007). Challenges to the constitutionality of the 2006 M.C.A. are reviewed de novo. Hamdan, 801 F.Supp.2d at 1264 n. 14, 2011 WL 2923945 at *9 n. 14 (citations omitted). We also review sentence appropriateness and factual sufficiency de novo. VII. MILITARY COMMISSION SUBJECT MATTER JURISDICTION A. Introduction Appellant alleges that his convictions must be reversed because none of the charges constitute war crimes triable by military corpmission. Brief for Appellant 21-28; Reply Brief for Appellant 11-13. Brief on Specified Issues for Appellant 6-39; Reply Brief on Specified Issues for Appellant 5-31. He argues that the military commission’s subject matter jurisdiction is limited to war crimes, that Congress’ authority to define and punish offenses triable by military commission is constrained to those offenses internationally recognized as violations of the law of war, and that none of the offenses of which he stands convicted are so recognized. Id. Appellant, in essence, asserts that Congress exceeded the scope of its constitutional authority in making the offenses of which he was charged and convicted punishable by military commission. Id. Appellee replies that the military commission validly exercised jurisdiction over the charged offenses. Brief for Appellee 16-30; Brief on Specified Issues for Appellant 1-31. Specifically, that the constitutional authority to define and punish offenses against the law of nations is vested in Congress, that the authority to determine the jurisdiction of military commissions belongs to the political branches exercising their war powers, and that exercise of that authority is entitled to great deference. Id. In addition, appellee asserts that even if a military commission’s jurisdiction is limited to common law of war offenses, appellant stands convicted of conduct which violates the common law of war. Id. at 19-30. Appellant’s challenge of Congress’ constitutional authority to “define” his conduct as an offense raises fundamental and significant questions as to the scope of legislative and executive authority in this area and as to what, if any, deference is due the exercise of that authority by reviewing courts. Our review is guided by two fundamental principles. First, the canon of “constitutional avoidance,” that being “when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity.” Second, we are also guided by the longstanding principle that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.... ” Murray v. Schooner Charming Betsy, 6 U.S. 64, 118, 2 Cranch 64, 2 L.Ed. 208 (1804). The offenses of which appellant stands convicted were explicitly defined, as such, by Congress in coordination with the President following the Supreme Court’s decision in Hamdan, and explicitly intended to address punishment of those with whom the United States was and remains engaged in armed conflict. In the words of Justice Jackson, when national security relating to foreign affairs is an issue, “[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.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring; citations omitted; quoted at infra n. 29). See also Hamdan, 801 F.Supp.2d at 1267 and n. 27, 2011 WL 2923945 at *12 and n. 27. In the 2006 M.C.A., Congress endeavored “to enumerate or define by statute” the acts punishable by military commission in a conflict characterized by the Supreme Court as “not of an international character occurring in the territory of one of the High Contracting Parties.” See Hamdan, 548 U.S. at 629, 126 S.Ct. 2749. This is an area of law where explicit international treaty law is generally characterized as “rudimentary” and customary international law is appropriately described as evolving. The parties’ acknowledgement that Congress, with the full support of the President, developed a comprehensive code to define and punish the conduct of widely disparate individuals in a global-battle space also informs our analysis. Even cursory review of the 2006 M.C.A. reveals that Congress cast a wide net of potential individual criminal liability with respect to the offenses which may be subject of trial by military commission. Of course, we need not, and jurisprudentially speaking, indeed should not, attempt to define the outer edges or margins of this plainly broad net unless required to do so by a specific issue in controversy. In addition, the hybrid nature of international terrorism presents unique legal and policy challenges as the underlying conduct is often punishable under the law of nations, the domestic law of civilized nations, or both. Consideration of the aforementioned, particularly in this statutorily prescribed, yet nascent military commissions system “requires us to proceed with circumspection.” B. Issue Presented Accordingly, we see the jurisdictional issue presented as similar to that addressed in Ex parte Quirin, “[w]e are concerned only with the question whether it is within the constitutional power of the National Government to place [appellant] on trial before a military commission for the offenses charged.” Ex parte Quirin, 317 U.S. 1, 29, 63 S.Ct. 2, 87 L.Ed. 3 (1942). More specifically, we will focus on the charged conduct in each specification and “inquire whether any of the acts charged is an offense against the law of war cognizable before a military tribunal, and if so whether the Constitution prohibits the trial.” Id.; see also Ex Parte Milligan, 71 U.S. 2, 45, 4 Wall. 2,18 L.Ed. 281 (1866). We will discuss the issues of law common to the offenses of which appellant stands convicted and address whether each individual offense describes conduct punishable by military commission. C. The Law “Congress and the President, like the courts, possess no power not derived from the Constitution.” Quirin, 317 U.S. at 25, 63 S.Ct. 2. The Constitution invests in Congress the authority to: provide for the common Defence, Art. I, § 8, cl. 1, ... To make Rules for the Government and Regulation of the land and naval Forces, Art. I, § 8, cl. 14, ... To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations, Art. I, § 8, cl. 10, ... [and] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Art. I, § 8, cl. 18. Id. at 26, 63 S.Ct. 1. In addition, the Constitution authorizes Congress “To constitute Tribunals inferior to the Supreme Court.” U.S. Const., art. I, § 8, cl. 9. “The Constitution confers on the President the ‘executive Power,’ Art. II, 1, cl. § 1, and imposes on him the duty to ‘take Care that the Laws be faithfully executed’ Art. II, § 3. It makes him the Commander in Chief of the Army and Navy, Art. II, § cl. 1.” Quirin, 317 U.S. at 26, 63 S.Ct. 2. The President, as Commander in Chief has “the power to wage war” which Congress has declared, “and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war.” Id. Military commissions derive their authority from these provisions of the Constitution as well as statutes, military usage, and the common law of war. Quirin, 317 U.S. at 26-28, 30, 34, 63 S.Ct. 2; Winthrop, Military Law and Precedents at 831 (2d ed. 1920) (1920 Winthrop). Military tribunals have existed since the Revolutionary War, and Congress has long recognized the “ ‘military commission’ ... as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by courts-martial.” Quirin, 317 U.S. at 26-27, 63 S.Ct. 2 (citing Articles of War 12, 15); id. at 42 n. 14, 63 S.Ct. 2 (listing revolutionary war military commissions). The Uniform Code of Military Justice, enacted in 1950, which provides rules for the government of the armed forces, also acknowledges the jurisdiction of the “military commission” for trial and punishment of “offenders or offenses” as provided “by statute or by the law of war.” See 10 U.S.C. §§ 821, 836, UCMJ, Act of May 5, 1950, ch. 169, 64 Stat. 107, 115, 120, 149 (quoted in Hamdan, 548 U.S. at 592-93, 126 S.Ct. 2749, cited at 652 (Kennedy, Souter, Ginsburg, and Breyer, JJ., concurring in part)). Colonel Winthrop explained the genesis of military commissions stating, “[I]n our military law, the distinctive name of military commission has been adopted for the exclusively war-court, which ... is essentially a distinct tribunal from the court-martial of the Articles of war.” 1920 Winthrop 831. He continued: [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. Id. (emphasis in original). In Hamdan, the Supreme Court agreed that military commissions have historically been used by the United States in three circumstances, and that the situation relevant to the conflict with al Qaeda is “incident to the conduct of war” when there is a need “to seize and subject to disciplinary measures those enemies who ... have violated the law of war ....’” 1. Military Commissions Act of 2006 The 2006 M.C.A. was developed and passed in direct response to the Supreme Court’s decision in Hamdan. The stated “purpose” of the 2006 M.C.A. is to “establish[ ] procedures governing the use of military commissions to try alien unlawful enemy combatants[] engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.” 10 U.S.C. § 948b(a). The 2006 M.C.A. proclaims, “[t]he 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” and acknowledges the effect of codifying pre-existing offenses stating, “[bjecause the provisions of this subchapter ... are declarative of existing law, they do not preclude trial for crimes that occurred before the date of enactment of this chapter.” 2006 M.C.A. § 950p. The jurisdiction of military commissions convened under the 2006 M.C.A. is limited to: (1) alien unlawful enemy combatants (AUEC), and (2) “any offense made punishable by this chapter or the law of war.” 2006 M.C.A. § 948d(a). The significance of these limits on the jurisdiction of a military commission convened under the 2006 M.C.A. to our resolution of the assigned error is difficult to overstate. These limits define both the type of person subject to trial by military commission convened under the 2006 M.C.A., an AUEC, and the offenses for which that person may be tried. In a broad sense, these two provisions define the personal or in personam jurisdiction and are fundamental to the definition of subject matter jurisdiction of military commissions convened under the 2006 M.C.A. 2. Congressional Authority to Define and Punish Offenses Against the Law of Nations The parties agree the constitutional authority “To define and punish Offences against the Law of Nations” (the “Define and Punish Clause”) provides Congress a basis to establish a statutory framework, such as the 2006 M.C.A., for trying and punishing violations of the law of war. U.S. Const, art. I, § 8, cl. 10. In addition, the Government asserts that when Congress exercises its authority to “define and punish” violations of the law of war, in conjunction with the Executive and “especially in the context of an armed conflict where national security is at stake, its judgment is entitled to the greatest deference.” In response, appellant avers that the “Supreme Court has consistently required a plain and unambiguous showing that a war crime was established under the laws of war” when the charged conduct occurred. Judicial review of the scope of Congressional authority to define and punish offenses against the law of nations is infrequent. In an 1887 decision, the Supreme Court upheld a federal statute criminalizing the counterfeiting of foreign government securities explaining that “the obligation of one nation to punish those who within its own jurisdiction counterfeit the money of another nation has long been recognized [under the law of nations].” United States v. Arjona, 120 U.S. 479, 484, 7 S.Ct. 628, 30 L.Ed. 728 (1887). The Court went on to reason that “[w]hether the offence as defined is an offence against the law of nations depends on the thing done, not on any declaration to that effect by Congress.” Id. at 488, 7 S.Ct. 628. In Arjona, the Supreme Court did not address the scope of Congress’ discretion or what, if any deference, Courts should show a determination that a particular act constitutes an offense under the law of nations. In 1820, the Supreme Court addressed Congressional authority in Article I, § 8, cl. 10, “[t]o define and punish Piracies and Felonies committed on the high seas,” the same clause containing the separate congressional power, “[t]o define and punish ... Offenses against the Law of Nations.” United States v. Furlong, 18 U.S. 184, 198, 5 Wheat. 184, 5 L.Ed. 64 (1820). The Court found a lack of nexus to the United States where Furlong, his victim, and the ship where the murder occurred were all British, and the Court concluded Congress had exceeded the scope of its constitutional authority by declaring “murder [at sea] to be piracy.” Id. at 195. Furlong, a British subject, had engaged in an act of piracy against a British vessel, and while aboard that vessel killed another British subject. Id. at 195. He was tried and convicted by a U.S. court under a 1790 law criminalizing piracy to include the offense of murder. Id. at 193. The Supreme Court reasoned: [t]hese are things so essentially different in their nature, that not even the omnipotence of legislative power can confound or identify them.... If by calling murder piracy, it might assert 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. We glean from Furlong that the Supreme Court recognized “the province and duty of the judicial department ... to say what the law is” includes review of the Congressional exercise of authority “[t]o define and punish Piracies and Felonies committed on the high seas.” Marburg v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803); U.S. Const., art. I, § 8, cl. 10. The outer boundaries of Congress’ discretion to “define and punish ... Offences against the Law of Nations” and to make such conduct punishable by military commissions remain an open question. An 1865 Attorney General Opinion suggests Congressional authority to “define” such offenses is limited: To define is to give the limits or precise meaning of a word or thing [already] in being; to make is to call into being ... Congress has the power to define, not to make, the laws of nations.... Hence Congress may define those laws [and] may modify [those laws] on some points of indifference. On the other hand, there is substantial authority supporting the Government’s position that “greatest deference” is due Congress’ determination that the offenses of which appellant stands convicted constitute offenses under the law of nations; particularly where that determination directly implicates both national security interests in an ongoing armed conflict and foreign affairs, including interpretation of treaty obligations and customary international law. Nonetheless, we are not persuaded by the Government’s suggestion that Congress’ power to “define and punish ... Offences against the Law of Nations,” U.S. Const., art. I, § 8, cl. 10, even when exercised in collaboration with the President in a time of armed conflict, includes the power to make conduct punishable by military commission without any reference to international norms. It is emphatically the province and duty of a reviewing Court to “say ‘what the law is.’” Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2259, 171 L.Ed.2d 41, 77 (2008) (quoting Marbury, 5 U.S. at 177); see also Hamdan, 801 F.Supp.2d at 1279, 2011 WL 2923945 at *19 (citation omitted). We find this duty particularly compelling in the assessment of the constitutionality of a federal statute that by its plain language casts a wide, potentially global net of individual criminal liability, and we conclude this applies to our determination of whether Congress exceeded its constitutional authority by defining the subject conduct as punishable by military commission. In making this determination, we will employ the “substantial showing” standard discussed- in the Supreme Court’s Hamdan decision, aware that a standard more favorable to the Government may, as a matter of law, be applicable. Where Congress’ determination that certain acts constitute offenses under the law of nations is consistent with international norms, we also conclude that the specific statutory scheme employed by Congress to include the name of the offense, the elements of that offense, the forum by which that offense is punishable, and the applicable rules/procedures, is due great deference. When incorporating existing offenses against the law of nations into American jurisprudence, it is well within Congress’ grant of authority under the Define and Punish Clause to define the specific elements of an offense in the context of the American legal system. See Hamdan, 801 F.Supp.2d at 1274 and n. 40, 1318-20, 2011 WL 2923945 at *17 and n. 40, *47 (citations omitted). This is particularly so when, as in the present instance, the executive and legislative branches act together and “weighty interests of national security and foreign affairs” are the basis for the legislative act. See supra n. 29. We begin our analysis by addressing the law of nations, the law of armed conflict, and their applicability in a non-international armed conflict. 3. The Law of Nations When the U.S. Constitution was adopted, “the law of nations was understood” to be “a branch of natural law, deducible by reason, ... obligatory on all nations,” and according to “Blackstone and Lord Mansfield, ... incorporated into the common law of England.” “[T]he scope and structure of the law of nations [evolved] in the nineteenth century ... [and] the law of nations came to govern primarily relations among nation-states, reflecting this new orientation the law of nations became known as ‘international law.’ ” “The first general American treatise on the subject, published in 1836, used the term ‘international law1 rather than the ‘law of nations’ and covered only the law that governed nation-states.” Curtis A. Bradley and Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modem Position, 110 Harv. L. Rev. 815, n. 34 (1997) (citing Henry Wheaton, Elements of International Law Passim (Philadelphia, Lea & Blanchard 1836)). “[T]he sovereign equality of states and the related principle of non-intervention have been paramount,” while “norms generated within this system have been traditionally understood to have as their legal subject the state alone, and their breach gave rise only to the responsibility of the state.” War Crimes Research Office, International Criminal Law: A Discussion Guide for the Extraordinary Chambers in the Courts of Cambodia War Crimes, Am. U. Wash. College of Law 5 (May 2006). More recently, the law of nations or international law is defined as “rules and principles of general application dealing with the conduct of States and of international organizations and with their relations inter se, as well as some of their relations with persons, natural or juridical.” Restatement (Third) of Foreign Relations Law of the United States, § 101 (1987). This modern definition reflects the integration of humanitarian law, or perhaps more succinctly individual human rights, into the evolving body of law previously primarily related to relations among nation states with almost exclusive focus on state sovereignty. The horrors of World War II produced a host of developments in international law, among the most significant was crystallization of the principle that violation of certain international norms, even on behalf of a nation state, could give rise to individual criminal responsibility. The emergence of this principle was primarily driven by the need for effective means of enforcement. The International Military Tribunal at Nuremberg reasoned, “[cjrimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The sovereignty of states over their territory and nationals, the protection of “succeeding generations from the scourge of war,” and the maintenance of “international peace” and security remain fundamental tenets of international law. Preamble and Article 1, United Nations Charter. The generally accepted sources of international law include: a. international conventions establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d .... judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 4. The Law of Armed Conflict International law’s traditional function of regulating relations between and among states is at the apex of importance when those relations degenerate into armed conflict. Indeed, the regulation of armed conflict has long been recognized as essential to the preservation of civilization. The corpus of international norms that regulate the conduct of hostilities and that provide protection for persons not taking part, or no longer taking part, in hostilities is known as the law of armed conflict, is one of the oldest subject areas of international law. It is the “customary and treaty law applicable to the conduct of warfare ... and to relationships between belligerents ...” and “requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.” Dep’t. of the Army, Field Manual 27-10, The Law of Land Warfare (1956) (1956 FM 27-10), ¶¶ 1, 3. See also Quirin, 317 U.S. at 29, 63 S.Ct. 2 (the law of war was not codified or bound by statute). al his influential 1886 treatise, Colonel William Winthrop explained the laws or customs of war as: [T]he rules and principles, almost wholly unwritten, which regulate the intercourse and acts of individuals during the carrying on of war between hostile nations or peoples. While properly observed by military commanders in the field, they may often also enter into the question of the due administration of justice by military courts in cases of persons charged with offences growing out of the state of war. Such laws and customs would especially be taken into consideration by military commissions in passing upon offences in violation of the laws of war. William Winthrop, Military Law, vol. I, 42-43 (Morrison 1886). Since Colonel Winthrop’s 1886 treatise, the number of conventions and treaties applicable in armed conflict has increased significantly. Most conventions addressing the law of armed conflict fall within two broad categories, “Hague Law” or “Geneva Law.” Hague law primarily addresses restraints on the conduct of hostilities, including the outright prohibition of certain means and methods of warfare. Richard D. Rosen, Targeting Enemy Forces in the War on Terror: Preserving Civ