President Trump on Wednesday labeled the U.S. federal justice system as a “joke” and a “laughing stock” as he called for “quick” and “strong justice” for terrorism suspects like Sayfullo Saipov, the Uzbek national who authorities say carried out Tuesday’s fatal terrorist attack in New York City. The president also said he would “certainly consider” sending Saipov to the U.S. military prison on Guantanamo Bay, Cuba, repeating a long-held position that terrorism suspects should not be tried by U.S. courts. Sarah Huckabee Sanders, the White House spokeswoman, said the administration considers Saipov an “enemy combatant.”
That line is consistent with Trump’s remarks since before he became president. During the 2016 presidential campaign, for instance, Trump said he would consider sending U.S. citizens to Guantanamo, where the U.S. has attempted to try terrorism suspects captured on the battlefield following the attacks of September 11, 2001; no U.S. citizen has ever been sent there. His remarks Wednesday notwithstanding, the federal court system has been far more effective at trying and convicting terrorism suspects than the military courts at Guantanamo. Since the September 11 attacks, eight people have been convicted of terrorism at Guantanamo. Of those, three convictions were completely overturned; one was partially overturned. Khalid Sheikh Mohammed, the alleged 9/11 mastermind who has been at Guantanamo since he was captured in 2003, has yet to be tried. Federal courts, on the other hand, have convicted 620 terrorists, including such figures as Zacarias Moussaoui, the so-called 20th hijacker, and Jose Padilla, the al-Qaeda member.
“If he [Trump] really wants quick justice and strong justice then he shouldn’t designate this individual as an enemy combatant and send him to Guantanamo, because the fact of the matter is that our federal court system has a very strong track record of dealing with these individuals, fairly and expeditiously,” General Charles C. Krulak, the former commandant of the Marine Corps, said in an interview. “Whereas, the truth be told, the military commissions have not been able to effectively and judiciously and rapidly take action.”
Then there is the legal question of whether the administration can take individuals from the U.S. and transfer them to Guantanamo. Raha Wala, director of national-security advocacy at Human Rights First, a civil-liberties group, told me that it’s prohibited to try U.S. citizens at Guantanamo and legally problematic to try green-card holders, like Saipov, who are permanent residents of the U.S. and enjoy most of the same rights as citizens.
“There’s not much precedent for picking up individuals, especially green-card holders, who are in the United States and seeking to transfer them to Guantanamo,” he said. “Even the Bush administration declined to take this route at the height of the fear of terrorism after 9/11.” (Indeed, civil-liberties lawyers argue that for the purposes of detention, the Constitution does not distinguish between citizens and noncitizens who are physically present in the U.S.)
Many of the trials of terrorist suspects in civilian courts took place in the Bush era. The practice was continued during the Obama years, and even the Trump administration has brought two terrorism suspects, including one this week, to the U.S., where they will be tried in civilian courts.
Jonathan Hafetz, a senior staff attorney with the ACLU, said in an interview that the president could try to send a suspect captured in the U.S. to Guantanamo, but “it would not make the order lawful.” He said when presidents have tried to label suspects enemy combatants in the past, “it has proven a legal and a political disaster.” He added that the Authorization for Use of Military Force, which approved military action against al-Qaeda and associated forces, after the attacks of 9/11, does not cover ISIS suspects.
“Congress has not authorized the detention of ISIS suspects,” Hafetz said. “It’s an authority that’s directed at a different organization, al-Qaeda, and it cannot be stretched to cover this group that did not even exist at the time the AUMF was passed” in 2001.
Legal issues aside, the drama that unfolded this week at the military commission at Guantanamo underscores the difficulty of providing, in the words of the president, “quick justice” to terrorism suspects. At issue was the trial of Abd al Rahim al Nashiri, a 52-year-old Saudi accused of masterminding the attack of the USS Cole in 2000. That bombing in Yemen killed 17 U.S. sailors. The judge in the case, Air Force Colonel Vance Spath, found the Marine general who is the chief defense counsel for military commissions, Brigadier General John Baker, guilty Wednesday of contempt of court, sentencing him to 21 days in a trailer and ordering him to pay a fine of $1,000. Carol Rosenberg, the Miami Herald reporter who has for years covered the Guantanamo trials, wrote:
[T]he … drama was driven by a decision by three civilian attorneys to quit the case over a secret ethical issue involving, they say, compromised attorney-client privacy at the war-on-terror prison where the alleged terrorists are held.
The chief defense counsel, Marine Brig. Gen. John Baker, released attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case in mid-October based on secret information the public cannot know. Spath ruled that only a judge, not Baker, had the authority to excuse lawyers of record — and ordered the general to swear an oath and answer questions about the episode.
Baker stood three rows behind the defendant and refused, invoking a privilege.
The judge then ordered the general to rescind his decision to excuse the three lawyers. “I’m definitely not doing that,” the Marine general replied. Baker maintains that under the war court rule book he has the unchecked authority to release defense attorneys for “good cause.”
On Wednesday, Spath declared Baker’s decision to release the three attorneys “null and void.”
Krulak, the Marine commandant, highlighted a second significant reason not to designate Saipov an enemy combatant. It would, he said, legitimize a lone-wolf attacker as a warrior.
“The last thing we need to do is take somebody who is claiming to be ISIS-inspired and put a tag on him as a combatant or a warrior instead of what he really is—a thug and a criminal,” he said. “From a recruitment standpoint, you’ve played into the hands of the bad guy.”
At its peak, Guantanamo held more than 750 prisoners, but President Obama released those that were deemed to be of little to no risk and persuaded other countries to take them. Some 55 detainees, the so-called “worst of the worst” suspects, are still at the facility. If Trump has his way, Saipov will join them. But, as Wala said: “I think you’ll see an outcry [if that happens] … and you’ll see efforts to bring accountability in court, as well.”