Noah Feldman, Columnist

Two Messy Gitmo Trials Land at Supreme Court's Step

Both cases reveal U.S. prosecutors trying to be creative with the law.

October 26, 2016 at 2:55 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Bad precedent.
Photographer: John Moore/Getty Images

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Two important Guantanamo military commission cases are hovering on the edge of review by the U.S. Supreme Court, and the bad news is, both involve claims of legal overreach by government prosecutors. One defendant says he can’t be tried for the USS Cole bombing in 2000, because the U.S. wasn’t at war with al-Qaeda until Sept. 11, 2001. The other says he can’t be convicted of a conspiracy that didn’t come to fruition because international law doesn’t recognize such a crime.

So far, neither defendant has prevailed in the lower courts, and it’s hard to say exactly how the Supreme Court would rule if it takes either of the cases. But what’s noteworthy is that, no matter the outcome, these two Guantanamo trials are going to end up tainted in the eyes of future legal scholars and analysts. Apart from general concerns about victors’ justice, both cases reveal the U.S. government making up creative legal theories as it goes in the hopes of regularizing the al-Qaeda military commissions.