On Wednesday, Senators Lindsey Graham and John McCain reignited a seemingly settled debate by urging that Sayfullo Saipov, the suspect in Tuesday’s horrific terrorist attack in downtown Manhattan, be transferred to Guantanamo Bay.  President Trump also said he was considering the option.  This would be novel even for the turbulent world of Guantanamo: Sending a legal permanent resident detained on U.S. soil to Guantanamo would be a first, as would sending there anyone detained for his association with ISIS, rather than al-Qa’ida or the Taliban.

It now appears that, thankfully, Guantanamo is not the direction in which Saipov’s case is headed.  Late on Wednesday, Senator Lindsey Graham said that Trump will not be declaring Saipov an enemy combatant, a first step toward sending him to Guantanamo; and, even more to the point, on Wednesday federal prosecutors filed criminal charges against Saipov in federal district court.  President Trump this morning affirmed that Saipov will be tried in the federal system.  This is the right way to go; and we applaud the government for taking this path.  That’s because, even leaving to the side broader questions about Guantanamo, for anyone who really wants the “quick justice and . . . strong justice” that Trump said he craves, the place to look is a federal courtroom.

When confronted with a detainee like Saipov, national security professionals ask themselves a key question: How do we address the threat posed by this individual and bring him to justice?  They then consider the potential options for doing so.  And, here, criminal prosecution clearly emerges as the right way forward.

Our federal courts have been used extensively and successfully to convict hundreds of individuals on terrorism-related charges since 9/11—620 times, by one countNone of these convicted terrorists has ever escaped from prison.  And the sentences imposed on these defendants have generally been lengthy terms—far lengthier than those handed down by the few military commission proceedings at Guantanamo that have even made it to the sentencing phase.  Plus, criminal prosecution has proven no impediment to gathering any intelligence he or she might have that could help the government to stop another attack.  For one thing, as Steve Vladeck has noted, Miranda is “only an exclusionary rule; even when violated, it simply limits the government’s ability to use a suspect’s statements against him at trial. Given the apparent physical evidence against Saipov, it’s hard to see why that would matter here.”  More fundamentally, whether by invoking the Quarles public-safety exception to providing a Miranda warning or—more frequently—by eliciting cooperation from a suspect, interrogation before prosecution has consistently provided a way to ensure that the government learns what a detainee knows.  (Indeed, press reports this morning indicate that Saipov has waived his Miranda rights.)

When it comes to articulating the proven successes of the criminal justice system, we can’t say it any better than the Acting U.S. Attorney for the Southern District of New York in announcing the charges against Saipov:

The folks in that unit [of the Southern District] working with the NYPD and the JTTF [Joint Terrorism Task Force] have a long and unblemished track record of successfully investigating and prosecuting domestic and international terrorists.  Whether it’s the Chelsea bomber, just convicted a few weeks ago on all counts, who will be serving life, mandatory life in prison.  Or the other terrorists convicted in our courthouse just down the street in the last few years alone.  That list includes the recent convictions by this office after the trial of Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law; Abu Hamza, the United Kingdom-based radical cleric; Ahmed el-Gammal, the homegrown ISIS supporter; and Khalid al-Fuaz, one of al-Qa’ida’s embassy bombing defendants.  It is an amazing record of success.

Indeed it is; and it makes this tool the right one for this job.

In fact, the ability to deliver justice at Guantanamo would be much less certain.  The military commissions at Guantanamo have convicted only eight people since September 11, and three of those convictions have been overturned.  The 9/11 defendants remain mired in pretrial proceedings and have yet to be tried, over 16 years after the attacks; thus, by the time the cases get to full trial, the evidence, including witness testimony, against the defendants will have potentially seriously eroded.  Perhaps the perfect example of the seemingly endless problems that have faced the commissions is how the ongoing attempt to try Abd al Rahim al Nashiri for the U.S.S. Cole bombing is now mired in controversy and delay over the attempt of Nashiri’s defense attorneys to withdraw because of a secret ethics conflict involving attorney-client privilege.

If anything, one would expect even more problems with any attempt to transfer Saipov to military custody and then hold him at Guantanamo.  In only two previous post-9/11 cases—the cases of Jose Padilla and Ali al-Marri—were suspects captured in the United States and transferred to military custody.  In both cases, years of contentious litigation over the Government’s ability to hold the detainees in military custody ensued, before the Government ultimately transferred both men back to federal courts for prosecution.  The Supreme Court has never resolved the questions presented by the cases; as Marty Lederman has noted, “it is unsettled whether Congress has authorized the detention of a member of enemy forces who is a lawful permanent resident and who was detained in the United States.  This is, in effect, the question on which the Court granted certiorari in al-Marri v. Spagone.  It’s not clear what the Court would ultimately decide, but I think it’s fair to say it’s a close and difficult question.”  (The fact that Congress, in clarifying the scope of detention authority granted by the 2001 Authorization for Use of Military Force (AUMF) in the 2012 National Defense Authorization Act, explicitly reserved the question of whether it authorized the detention of “United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States” underscores the difficulty of this issue.)

Moreover, here the facts appear even more difficult for the Government.  With respect to Padilla, the Government offered the following facts:

[Padilla] moved to Egypt in 1998 and traveled to several countries in the Middle East and Southwest Asia between 1999 and 2000. During this period, he was closely associated with known members and leaders of al Qaeda. While in Afghanistan in 2001, Padilla became involved with a plan to build and detonate a “dirty bomb” within the United States, and went to Pakistan to receive training on explosives from al Qaeda operatives. There he was instructed by senior al Qaeda officials to return to the United States to conduct reconnaissance and/or other attacks on behalf of al Qaeda. He then traveled to Chicago, where he was arrested upon arrival on May 8, 2002.

In the other case, the Government arrested al-Marri in December 2001, around three months after he entered the country, and asserted that he:

(1) is “closely associated with al Qaeda, an international terrorist organization with which the United States is at war”;  (2) trained at an al Qaeda terrorist training camp in Afghanistan sometime between 1996 and 1998;  (3) in the summer of 2001, was introduced to Osama Bin Laden by Khalid Shaykh Muhammed;  (4) at that time, volunteered for a “martyr mission” on behalf of al Qaeda;  (5) was ordered to enter the United States sometime before September 11, 2001, to serve as a “sleeper agent” to facilitate terrorist activities and explore disrupting this country’s financial system through computer hacking;  (6) in the summer of 2001, met with terrorist financier Mustafa Ahmed al-Hawsawi, who gave al-Marri money, including funds to buy a laptop;  (7) gathered technical information about poisonous chemicals on his laptop;  (8) undertook efforts to obtain false identification, credit cards, and banking information, including stolen credit card numbers;  (9) communicated with known terrorists, including Khalid Shaykh Muhammed and al-Hawsawi, by phone and e-mail;  and (10) saved information about jihad, the September 11th attacks, and Bin Laden on his laptop computer.

Unlike Padilla and al-Marri, Saipov has been lawfully in the United States for years, and we are aware of no claim that he has had recent on-the-ground training with a terrorist group in a conflict zone—or anything even approximating such a set of facts.  His case would thus not only raise the general question of whether a LPR arrested in the United States may be subjected to military detention, but also legal and factual questions about whether such detention authority would extend to individuals who (based on the facts as we understand them) are merely inspired by ISIL and not under the group’s command and control.  While we don’t have the space to unpack these issues in this short piece, we think it is fair to say that they are extremely difficult for the Government and that, at the very least, the prospect of a much wider swath of individuals lawfully within the United States being shifted to military custody would certainly ratchet up the prospects of protracted legal proceedings (as, among other things, courts would not help but think that the Government claiming such a power over a lawful permanent resident like Saipov would be a step closer to them claiming it over all U.S. citizens).

Moreover, transferring Saipov to military custody and Guantanamo would present a number of other risks not present in a federal trial.

First, Saipov would undoubtedly have the opportunity to challenge his detention in federal court by seeking habeas relief.  In considering whether detainees like Saipov could be detained, the federal courts have looked to whether the President was holding him pursuant to statutory authority granted by Congress.  The Government has argued that ISIS is covered by the 2001 Authorization for Use of Military Force (AUMF).  An attempt to challenge that interpretation was dismissed without the court reaching the merits of the challenge, but there would be a much greater risk that the Government’s position would be subject to substantive judicial review if Saipov were detained militarily.  (As we alluded to earlier, a court could of course narrowly hold that Saipov is not “part of” ISIS, which might relieve it of the need to answer the question of whether the group as a whole is covered by the 2001 AUMF, but that, of course, would lead to the Government suffering an embarrassing loss and could, depending on how the court ruled, have potentially unpredictable downstream effects on other aspects of the current armed conflict.)  If a court did reach the question of whether the 2001 AUMF covered the Islamic State, it would be just about the worst set of facts on which the Government could litigate this issue, and a court holding that the 2001 AUMF did not cover ISIS could have significant repercussions, including potentially casting doubt on the legal authority for U.S. operations including in Iraq and/or Syria.

Second, transferring Saipov to military custody and Guantanamo threatens to upset the workable status quo on Guantanamo at which the federal courts appear to have arrived.  While the post-Boumediene approaches to Guantanamo taken by the D.C. Circuit Court of Appeals and, where left open to it, the D.C. District Court have both passionate defenders and impassioned critics, at least the basic contours of the legal regime applicable at Guantanamo have been set, and the government knows how to operate within them.  A habeas petition from a legal permanent resident detained on U.S. soil and then moved to Guantanamo would demand that the federal courts confront new and potentially complicated legal issues above and beyond those associated with the AUMF’s applicability to ISIS.  What rights might Saipov have at Guantanamo that no other detainee there has ever been deemed to have, such as the right to constitutional due process protections?  And, if those do apply in some form, what would that mean for the standards and burdens of proof that the courts should apply to Saipov’s habeas petition?  This would, at a minimum, be a very controversial case going to the D.C. Circuit that could yield new answers on Guantanamo-related issues that government lawyers could have to struggle with in contexts other than this particular case.

Third, Presidents also argue that federal courts should defer to their national security judgments, and this deference is crucial in many cases.  The willingness of courts to grant deference is not absolute, however, but often tied to how credible they believe the President to be.  The federal courts have already dealt numerous setbacks to some of President Trump’s national security initiatives, such as his Executive Orders with respect to immigration and transgender military service.  Transferring Saipov to military custody—and thereby raising a number of very difficult constitutional issues and requiring courts to rule on extremely expansive claims of Presidential power—when there is such an obvious Article III option could further complicate President Trump’s difficulties in the courts, and not just in this case alone.

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For these reasons, we are virtually certain that career national security professionals are strongly supportive of the current course of action:  The Department of Justice and Federal Bureau of Investigation want to try the case and bring Saipov to justice, and we are doubtful that Department of Defense officials want the headache of having to detain Saipov and deal with the contentious litigation that will surely follow.  We agree with them, and are glad that the Administration appears to have chosen this most sensible course of action.


Image: Getty/Spencer Platt