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UNITED STATES COURT of MILITARY COMMISSION REVIEW Before F UNITED STATES COURT OF MILITARY COMMISSION REVIEW before F. Williams, D. Conn, and C. Thompson ) ) ) BRIEF ON BEHALF OF ) APPELLANT ) ) CMCR CASE NO. 09-001 ) ) Tried at Guantanamo, Cuba on UNITED STATES ) 7 May 2008, ) 15 August 2008, Appellee ) 24 September 2008, ) 27 October – 3 November 2008 v. ) ) Before a Military Commission convened by ALI HAMZA AHMAD SULIMAN ) Hon. Susan Crawford AL BAHLUL ) ) Presiding Military Judge Appellant. ) Colonel Peter Brownback, USA (Ret.) ) Colonel Ronald Gregory, USAF ) ) ) DATE: 1 September 2009 ) ) ) ) ) TO THE HONORABLE, THE JUDGES OF THE COURT OF MILITARY COMMISSION REVIEW Michel Paradis MAJ Todd E. Pierce, USAR LCDR Katherine Doxakis, USNR Capt Scott Medlyn, USAF Appellate Defense Counsel 1099 14th Street NW, Suite 2000E Washington, DC 20005 1.202.761.0631 [email protected] TABLE OF CONTENTS TABLE OF AUTHORITIES .........................................................................................................iii CONTENTS OF APPENDIX........................................................................................................ vi CERTIFICATE OF COMPLIANCE WITH RULE 14(I)............................................................ vii CERTIFICATE OF SERVICE ....................................................................................................viii ISSUES PRESENTED.................................................................................................................... 1 STATEMENT OF STATUTORY JURISDICTION ...................................................................... 2 STATEMENT OF THE CASE....................................................................................................... 3 STATEMENT OF FACTS ............................................................................................................. 5 SUMMARY OF ARGUMENT ...................................................................................................... 7 ERRORS AND ARGUMENT........................................................................................................ 9 I. MR. AL BAHLUL WAS CONVICTED ON THE BASIS OF POLITICAL SPEECH IN VIOLATION OF THE FIRST AMENDMENT. ................................................................................................................. 9 a. The First Amendment governs any judicial proceeding that seeks to impose civil or criminal liability for speech. ................................................................................................... 10 i) Even if aliens cannot file lawsuits to enjoin government action abroad, the First Amendment governs the adjudication of liability by U.S. courts......................................... 10 ii) Mr. al Bahlul’s prosecution for speech has a chilling effect on Americans’ access to information from abroad....................................................................................................... 12 iii) The fact that Mr. al Bahlul’s trial was held at GTMO is irrelevant with respect to the application of the First Amendment. .................................................................................... 14 b. State of the Ummah is protected speech as a matter of law.............................................. 14 i) Authoring political propaganda enjoys per se protection from prosecution under the First Amendment. ................................................................................................................. 14 ii) In order to prosecute the creator of a broadcast message for soliciting criminal conduct, the government must show that it rises to the level of incitement under Brandenburg. ........................................................................................................................ 16 iii) The record is unambiguous that State of the Ummah does not meet the standard for incitement.............................................................................................................................. 17 c. The military judge failed to instruct the members on the standard for incitement or on the probative value of protected speech as evidence. ................................................................... 19 i II. MR. AL BAHLUL’S CONVICTION MUST BE REVERSED BECAUSE NONE OF THE CHARGES ARE WAR CRIMES TRIABLE BY MILITARY COMMISSION....................................................................... 21 a. Because they are Article I courts, military commissions have subject matter jurisdiction over war crimes only............................................................................................................... 22 b. Congress cannot criminalize conduct as a war crime if the conduct is not recognized as a violation of international law.................................................................................................. 23 c. Providing Material Support for Terrorism is not a war crime triable by military commission. ............................................................................................................................ 24 d. Conspiracy is not a war crime triable by military commission. ....................................... 25 e. Solicitation is not a war crime triable by military commission. ....................................... 25 III. CHARGE III VIOLATED THE EX POST FACTO CLAUSE AND WAS ERRONEOUSLY DEFINED BY THE MILITARY JUDGE. .................................................................................................................... 26 a. Mr. al Bahlul’s conviction of Material Support for Terrorism must be reversed because it was not a crime at the time of the relevant conduct................................................................ 26 i) The Ex Post Facto Clause limits courts’ subject matter jurisdiction to crimes that were triable at the time of the offense. .......................................................................................... 26 ii) The fifteen year legislative history of Material Support offenses confirms that providing material support to a terrorist organization was not a crime at any time relevant to Charge III.............................................................................................................................. 26 iii) That the provision of material support to a terrorist organization pre-dated most of the alleged conduct as a domestic crime is irrelevant................................................................. 28 b. The military judge gave the members erroneous instructions on what constitutes “material support.”.................................................................................................................. 29 IV. THE MILITARY COMMISSIONS ACT IS AN UNCONSTITUTIONAL BILL OF ATTAINDER......... 30 a. The MCA applies to a discrete group of individuals defined by their past conduct......... 30 b. The MCA imposes punishment by depriving AUECs of pre-existing rights. .................. 31 i) The deprivation of pre-existing rights is the historical definition of punishment....... 32 ii) AUEC status furthers no nonpunitive legislative purpose.......................................... 33 iii) Congress created AUEC status with a punitive intention........................................... 34 c. Congress deprived Mr. al Bahlul of fundamental rights without judicial trial. ................ 35 V. THE MILITARY COMMISSIONS ACT DISCRIMINATES AGAINST ALIENS IN VIOLATION OF THE EQUAL PROTECTION COMPONENT OF THE FIFTH AMENDMENT...................................................... 37 a. The MCA’s targeting of aliens for prosecution is subject to strict scrutiny. .................... 37 b. The MCA’s targeting of aliens fails strict scrutiny........................................................... 38 i) Prosecuting aliens alone is invidious discrimination for no other purpose than to avoid the political accountability that would result if citizens could be tried. ............................... 38 ii) Prosecuting aliens alone serves no compelling state interest...................................... 38 iii) Prosecuting aliens alone is not narrowly tailored. ...................................................... 39 CONCLUSION............................................................................................................................. 41 ii TABLE OF AUTHORITIES Cases A v. Sec’y of State for the Home Dep’t, [2005] 2 A.C. 68 ............................................................ 39 Am. Land Program v. Bonaventura Uitgevers Maatschappij, 710 F.3d 1449 (10th Cir. 1983) .. 10 Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986) ............................................ 40 Bachanan v. India Abroad, 585 N.Y.S.2d 661 (N.Y. Sup. Ct. 1992)........................................... 10 Boumediene v. Bush, 128 S.Ct. 2229................................................................................ 12, 14, 32 Brandenburg v. Ohio, 395 U.S. 444 (1969).................................................................. 9, 16, 17, 20 Bryks v. Canadian Broadcasting Company, 928 F.Supp 381 (S.D.N.Y. 1996)........................... 10 Carmell v. Texas, 529 U.S. 513 (2000) ........................................................................................ 34 City of Cleburne v. Cleburne Living Ctr, 473 U.S. 432 (1985).............................................. 37, 40 Collins v. Youngblood, 497 U.S. 37 (1990) ............................................................................ 26, 29 Crawford v. Washington, 541 U.S. 36 (2004)
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