A President Donald Trump might push for Americans accused of terrorism to be tried in military tribunal at the U.S. Navy base in Guantánamo Bay, Cuba, the Republican nominee told the Miami Herald on Thursday.Wow! This is so far beyond what any mainstream Republican would propose! ... Right? Isn't it?
“I would say they could be tried there, that would be fine,” Trump said in a brief interview ahead of his speech to home builders in Miami Beach.
Under current federal law, it’s illegal to try U.S. citizens at military commissions. Changing the law would require an act of Congress.
Senators say Tsarnaev should be declared 'enemy combatant'It was originally reported that Graham and McCain proposed sending Tsarnaev, a U.S. citizen, to Guantanamo, but they stopped just short of that. They conceded that, under the law, Tsarnaev would have to have a trial in a civilian court -- but first, they argued, he should be denied basic rights:
April 20, 2013
WASHINGTON -- Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.), said Saturday in a joint statement that alleged Boston Marathon bomber Dzhokhar Tsarnaev should be denied a defense attorney and declared an “enemy combatant.”
... The two Republican conservatives have demanded that terror suspects not be Mirandized or tried in federal courts and instead be shipped to the detainee prison on Guantanamo Bay, Cuba.
Graham acknowledged as much in his press release: “As to any future trial, if this suspect is an American citizen he is not subject to military commission trial.” But he says this doesn’t matter for purposes of detention. Here’s his proposal: Throw Dzhokhar Tsarnaev into a military brig for some prolonged period of time, once his wounds heal sufficiently, and then hand him over to military and CIA interrogators, without a lawyer or any of the other rights criminal defendants are entitled to in American courts. Then turn him over to the court system later.(The statement, signed by Senators McCain, Graham, and Kelly Ayotte, as well as Congressman Peter King, is here.)
As Benjamin Wittes points out, the 2011 National Defense Authorization Act calls for military detention and military tribunals for those deemed enemy combatants but "exempts U.S. citizens entirely." However, the Supreme Court has said that it would be constitutional to change the law in a way that subjects U.S. citizens to detention and tribunals, as Adam Serwer noted in 2011:
"There is no bar to this nation's holding one of its own citizens as an enemy combatant," Sen. Carl Levin (D-Mich.) said during [a] floor speech defending the detention provisions Tuesday. "That's not me, that's not Sen. Graham, that's not Sen. McCain. That's the Supreme Court of the United States recently."See also this 2013 statement from the Senate Republican Policy Committee:
Levin was referring to 2004's Hamdi v. Rumsfeld case, in which the Supreme Court ruled that Yaser Esam Hamdi, a US national captured during the 2001 invasion of Afghanistan, could be held in military detention but not without habeas review.
In fact, the Supreme Court has specifically held it is constitutionally permissible to hold in military custody a U.S. citizen captured on U.S. soil and prosecute him in a military commission.So a lot of D.C. politicians have walked up to that line. Donald Trump stepped over it, but that's a baby step.
... it is simply a policy question whether to immunize U.S. citizens from certain consequences of joining the enemy, namely excepting them from military detention.
... As Justice O’Connor said in the Hamdi case, testing the military detention at Guantanamo of a U.S. citizen captured abroad, “there is no bar to this Nation’s holding one of its own citizens as an enemy combatant.”
... President Bush’s Military Order of November 2001, the 2006 Military Commissions Act, and the 2009 Act all reflected the policy choice not to prosecute U.S. citizens in a military tribunal.
The state of the law regarding U.S. citizen terrorists, however, provides ample space for policymakers to make choices about how best to protect this country from domestic extremists, especially those shown to have connections to foreign terrorist enemies.