Bad precedent.

Photographer: John Moore/Getty Images

Two Messy Gitmo Trials Land at Supreme Court's Step

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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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.

The case closest to Supreme Court review is that of Abd al-Rahim al-Nashiri, accused among other things of masterminding the Cole attack in Yemen. His trial hasn’t begun yet, but he’s already asked the federal courts to stop it on the theory that the crimes he is charged with have no connection to “hostilities” between the U.S. and al-Qaeda. Those, he argues, began with the World Trade Center and Pentagon attacks that led Congress to authorize military force against al-Qaeda on Sept. 18, 2001. He points out that military commissions are only legally authorized to consider war crimes, which he defines as crimes occurring during wartime.

The federal courts haven’t ruled on this claim yet. A federal district court said that the issue could be considered after Nashiri is tried, and in August a divided panel of the U.S. Court of Appeals for the D.C. Circuit agreed.

In dissent, Judge David Tatel went out of his way to emphasize Nashiri’s (totally plausible) argument that his legal claims should be considered now, before trial, because he was tortured during his detention at secret Central Intelligence Agency facilities. Among other atrocities, Nashiri was waterboarded, shackled, kept naked in freezing conditions and forced to live in a kennel. The government hasn’t dispute Nashiri’s assertions about what happened to him in detention, rather claiming that it’s irrelevant to the question of his guilt.

Nashiri’s lawyers have said they will ask the Supreme Court to review the D.C. Circuit’s decision. It’s unclear whether the justices will feel they need to consider whether his legal claims should be heard now or after trial. On one hand, the justices would probably like to defer the legal issues. On the other hand, the court’s liberals know and respect Tatel, and will have a hard time ignoring his dissent.

But regardless, Nashiri’s underlying claim -- that the commission has no jurisdiction over his actions because there was no war between al-Qaeda and the U.S. when he committed them -- is the kind of argument that will have resonance with future generations of legal scholars. It casts light on the way the entire conflict was turned into a legal war retroactively, blurring the boundaries classically associated with the laws of war.

It’s possible that war can exist for purposes of war crimes tribunals even without formal declaration of hostilities. But it certainly looks ad hoc for the U.S. to retrospectively declare the Cole attacks to have been part of hostilities it only formalized after the Sept. 11 attacks.

The other case involves Ali al-Bahlul, an al-Qaeda publicist who was convicted of conspiracy to commit war crimes. In 2015, a panel of the D.C. Circuit held that Bahlul shouldn’t have be charged with the crime of uncompleted or “inchoate” conspiracy because it isn’t a recognized crime under international law. Last week, the en banc D.C. Circuit reversed the panel.

The new decision, which Bahlul will almost certainly ask the Supreme Court to review, is a mess of six different opinions running to 163 pages. The bottom line is that the judgment allows Bahlul’s conviction to stand. Three judges, including Tatel, dissented, arguing that Congress has no power to make inchoate conspiracy into an international war crime when other countries don’t recognize it as such.

This issue echoes the Supreme Court’s disreputable 1942 decision in Ex Parte Quirin upholding the conviction of German saboteurs who slipped into the U.S. and then did absolutely nothing to attack the homeland. The justices decided that case just a few days after they heard it. By the time they got around to issuing their opinions, two of the saboteurs had already been executed. The justices had a hard time coming up with a rationale to justify their decision, and the opinion is poorly reasoned.

The D.C. Circuit plurality relied on the Quirin opinion to conclude that Congress may authorize a military commission to try crimes even if they aren’t recognized under international laws of war. That means that, even if the Supreme Court upholds the appellate court, Bahlul’s conviction is tainted by its association with the bad World War II precedent.

If Bahlul’s conviction isn’t overturned, future scholars will also notice the doubtful way the U.S. government relied on its own idiosyncratic version of international law to legitimize its war crimes trials. That’s not the way to establish legal legitimacy.

Perhaps the Guantanamo trial of Khalid Sheikh Mohammed for planning the Sept. 11 attacks will ultimately avoid some of these serious legal problems. But the two cases likely headed to the court now don’t create a very promising legal atmosphere. No matter what the justices ultimately hold, these two cases are going to go down in history as legally doubtful.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net