Trump, Manhattan Terror, and the Dream of Gitmo

This article originally appeared on this site.

President Donald Trump likes the prison at Guantánamo Bay, or at least the idea of it, and has spoken, more than once, about packing it with more prisoners—as he put it, “bad dudes.” And yet in a stream of constitutionally questionable tweets following Tuesday’s terror attack in lower Manhattan, he included a couple of truths about Gitmo that, whether he noticed it or not, illustrate why the prison has been such a legal and moral failure. On Thursday, just before 8 A.M., he tweeted, “Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system…” That is a fact: the military commissions at Guantánamo have managed only a few convictions, several of which have been overturned, while federal courts have, since September 11th, 2001, successfully prosecuted more than six hundred people. (I wrote about some of the reasons for this state of affairs in September.)

Trump continued in his next tweet, “…There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!” There is something inappropriate about the President calling for a particular sentence for someone who has not been tried, even in the case of Sayfullo Saipov, who is accused of killing eight people in a rampage with a rental truck that took him within sight of children leaving Stuyvesant High School. But part of the tweet is apt: if you murder people in New York City, you ought to be brought before a jury of New Yorkers. It’s a post-9/11 American tragedy that that insight has not been brought to bear in what should be the most prominent of prosecutions: that of Khalid Sheikh Mohammed, the admitted planner of the World Trade Center attacks, who is languishing at Gitmo fifteen years after his arrest. Instead, the public has been offered a myth of expediency wrapped in a damaging argument about the nature of justice.

Trump has done much to propagate that myth, in a way that reveals—not incidentally—how little committed he is to the rule of law. Thursday morning’s tweets were part of a dialogue with himself, and, effectively, with those, like Senator Lindsey Graham, who were disappointed that federal prosecutors filed terrorism charges against Saipov, rather than shipping him off to Guantánamo. (Graham called this “very sad.”) Trump, as he often does, had swerved back and forth. On Wednesday, in response to questions from reporters as Trump met with his Cabinet, he said that he was “considering” sending Saipov to Guantánamo. He had been laying out the various ways he wanted to curtail immigration, including ending family reunification (the families of immigrants, he said in a tweet, “can be truly evil”) and the green-card lottery (or at least “lotteries where the wrong people are in the lotteries”). “We have to get much tougher,” Trump said. “We have to get much smarter. And we have to get much less politically correct.” Then he had turned to the judicial system. “We also have to come up with punishment that’s far quicker and far greater than the punishment these animals are getting right now.”

“These animals” was a phrase whose broadness and boundaries were not clear. Another one is “enemy combatant,“ the phrase that Graham argued should be applied to Saipov, with the effect, in his view, of removing certain constraints on his detention. Sarah Huckabee Sanders, the White House press secretary, said that Trump believed it did apply, though she was vague about what that meant. In an attack in America, in which the suspect is a legal resident—as Saipov apparently was—how would that status even be determined without a real judicial proceeding? The risk is that the determination would be based on circumstantial impressions—perhaps only on rumors, race, or religion.

Trump continued with what can only be called scorn for the criminal-justice process: “They’ll go through court for years. And at the end, they’ll be—who knows what happens. We need quick justice and we need strong justice—much quicker and much stronger than we have right now. Because what we have right now is a joke and it’s a laughingstock.”

We don’t always know what will happen at the end of court processes—and that is why American justice is strong, not why it is weak. It is what separates trials from show trials. Our civilian courts, imperfect as they can be, are the envy of countries struggling to establish, or hold onto, the rule of law. There are people in the world, no doubt, who think that what their American counterparts have to go through is a joke. A certain number of those people might be oligarchs who prefer the approach of buying justice in their own countries. Or they might be dispatchers of extrajudicial enforcers, like the Philippine President Rodrigo Duterte, or torturers. They might be foreign leaders who are surprised that Trump would let Robert Mueller’s investigation proceed as far as it has. Their laughter should hardly be dispositive.

If justice seeks a balance between due process and a lack of delay, Gitmo, with its stalled, improvised military commissions, is entirely out of whack. Even as Trump was speaking on Wednesday, there was a further example of Gitmo’s contortions and absurdities in a case involving the bombing of the U.S.S. Cole—one which, after several years, is still in pretrial hearings. In this case, Colonel Vance Spath, the presiding judge, ordered that General John Baker, the supervisor of the defense team, be confined to his quarters for twenty-one days for contempt of court. This was, as Carol Rosenberg—the only reporter on the scene—wrote, in the Miami Herald, a first for the court, and legally “dizzying.” (Rosenberg also noted that Baker’s quarters are a trailer.) In brief, Spath sanctioned Baker because Baker wouldn’t rescind his order releasing three civilian lawyers who wanted to quit out of ethical concerns, related to their sense that attorney-client privilege and confidential communications were being routinely violated. Spath’s contempt ruling—he also fined General Baker a thousand dollars—raised the question of what precise legal authority the military has to compel civilians to stay on the job. As with much about Guantánamo, it’s a puzzle.

The easy solution is turning to our civilian courts. The danger with Trump, though, is that if all he is looking for is something quick, tough, and not “politically correct,” he might just decide that Guantánamo is simply not the place he imagines or desires—but that some place needs to be. Where might he construct the Gitmo of his dreams?

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