President Trump said yesterday that he would “certainly consider” transferring Sayfullo Saipov–the person who murdered eight people in Manhattan on Tuesday–to military custody at the Guantánamo Bay Naval Base.  Senator Lindsey Graham likewise announced that the government should detain Saipov as an “enemy combatant.”  To similar effect, Senator John McCain insists that Saipov “should be held and interrogated—thoroughly, responsibly, and humanely—as an enemy combatant consistent with the Law of Armed Conflict,” and adds, for good measure, that the attackers in Orlando, San Bernardino and Boston ought to have been militarily detained as “enemy combatants,” too.

No one should take these suggestions seriously.  There’s no reason to transfer Saipov to military custody–and it would likely be unlawful, to boot.

The Absence of Policy Reasons for Transfer.  Senators McCain and Graham appear to be under the impression that Saipov’s access to counsel would be materially delayed if he were in military custody–and that such delay would be of great value because the prospects of obtaining important intelligence from Saipov would be harmed as soon as counsel is in the picture.  There are several problems with this “argument,” however (if it even deserves to be called that).

For starters, there’s no particular reason, at least based upon what we know as of now, to believe that Saipov has important intelligence about any future attacks–certainly the criminal complaint filed last night indicates that he was a proverbial “lone wolf,” inspired by ISIL propaganda, but not someone who was tied in to any larger schemes that ISIL or any other terrorist group might be planning.

Moreover, even if there were reason to believe Saipov had knowledge of important information regarding someone else’s future threats, there’s no apparent basis for concluding that he would offer less such information to the government once he consults with a lawyer; to the contrary, a good lawyer will, in many cases, advise a suspect to provide more information, because such cooperation is likely to be to the defendant’s advantage in the subsequent criminal justice proceedings.  (As John Brennan explained in a speech at Harvard in 2011, although “it’s . . . been suggested that prosecuting terrorists in our federal courts somehow impedes the collection of intelligence,” a “long record of experience . . . proves otherwise,” and “[c]laims that Miranda warnings undermine intelligence collection ignore decades of experience to the contrary.”)

Third, Saipov reportedly waived his right to speak to an attorney yesterday, even after being advised of his right to counsel, so there’s no reason to believe he would (or will) insist upon such access to counsel imminently within the criminal justice system.

Finally, and perhaps most importantly, Graham’s and McCain’s major premise–that Saipov would not be permitted to consult with a lawyer anytime soon if detained by the military–is almost certainly wrong.  Saipov would, of course, have a right to challenge his military detention in a habeas proceeding in federal court, and to have a lawyer assist him in doing so.  It remains an open question exactly when his right of access to counsel would kick in, but it would be sometime before Saipov is entitled to petition the court, and the Court in Boumediene indicated that the court must entertain such a habeas challenge without “undue delay.”  (To be sure, the Court added that “[t]he Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition.”  According to Graham and McCain, however, DoD could and should immediately designate Saipov as a “military combatant” who can be detained pursuant to an authorization for the use of military force.  At that point, there’d be no obvious reason to delay the habeas challenge–and the consultation with counsel that would precede it.)  Therefore it is not at all obvious that Saipov wouldn’t have access to counsel even sooner–or, in any event, sometime in the short run–if he were to be transferred to military custody.  Perhaps to the chagrin of Senators Graham and McCain, GTMO no longer is a “law-free zone.”

For his part, President Trump appears to believe that a military trial would be more efficient and more effective than a trial in an ordinary Article III federal court:  Yesterday he referred to the civilian criminal justice system “a joke” and “a laughingstock” when it comes to prosecuting terrorism cases.  This statement is so preposterous, and displays such woeful ignorance about the experiences and the relative virtues of civilian and military trials over the past 17 years, that it truly does not deserve anyone’s serious consideration.  (For those who are new to the question, however, see generally Mary McCord’s excellent post here on this topic, and the post soon to follow here from Chris Fonzone and Josh Geltzer.)  I would be surprised if there is anyone in the federal government, including in DoD–not anyone with any knowledge of the two systems, anyway–who would advise the President that the military justice system is preferable to an Article III proceeding, no matter which metrics one might consider in deciding such questions.  [UPDATE:  It appears that someone schooled the President on this last night–he’s gotten the message!]

The Legal Barriers.  In any event, even if there were anything to say, as a policy matter, in favor of putting Saipov in military detention–and there’s not–it would hardly matter, because such detention would almost surely be unlawful.  For starters, and as Steve explains, there are at least two serious legal questions about the scope of the AUMFs that would loom as dark shadows over any such military detention:

First, there’s the fundamental yet unresolved question whether either or both of the 2001 and 2002 AUMFs authorize any use of military force against, and detention of, ISIL forces.  A negative answer to this question would have a devastating impact, at least absent further congressional authorization, upon the whole range current military operations against ISIL, and the Saipov habeas case would be just about the least propitious context in which the government might invite the courts to opine on that critical question.

Second, even if one of those AUMFs does authorize military operations against ISIL generally, 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.  That’s among the reasons why President Obama, upon taking office, ordered “a prompt and thorough review of the factual and legal basis for al-Marri’s continued detention,” and a “thorough[] . . . evaluat[ion of] alternative dispositions” for him, and why the President shortly thereafter determined “that it is in the interest of the United States that Ali Saleh Kahlah al-Marri be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him,” thereby pretermitting the Supreme Court’s adjudication of the difficult but unnecessary question of the AUMF’s domestic application.  As Brennan explained, it was “the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts.  As they should be.”  That was a wise policy then–and it is, now, too, not least because it avoids the need to resolve the very delicate question of the scope of Congress’s authorization of the use of military force inside the United States.  

These two undecided questions of the scope of the AUMFs, however, are the least of the legal problems respecting the possible transfer of Saipov to military custody.  Even if we were to assume arguendo that one or both of the AUMFs does cover ISIL, and that Congress has authorized the longterm military detention of enemy forces even when they are U.S. persons captured in the United States, there does not appear to be any factual basis for concluding that Saipov is an “enemy combatant” who may be detained by the military pursuant to an AUMF.

In particular, it appears from the criminal complaint that Saipov is not a part of ISIL’s armed forces–that he is, instead, an individual who was inspired by ISIL and decided on his own to engage in the attack on Tuesday.  And because, from all that appears, Saipov is not a part of enemy forces (i.e., he is not subject to the enemy’s direction and control) in an armed conflict with the United States, the AUMFs probably would not authorize his military detention until the end of hostilities, even if members of ISIL forces detained in the United States could otherwise be so held.*

P.S.  Accordingly, with respect to the analogous question of international law, yes, Marko we do agree that, under the facts as we know them thus far, “under IHL, . . . there is not even a remotely plausible, let alone genuinely persuasive, argument that this individual . . . was a member of a non-state armed group engaging in hostilities in such a conflict,” and thus we also agree that Saipov “is not an ‘enemy combatant” in any international legal sense of the word; he is only a (vicious) criminal.”  You’re right:  This “is not a hard or difficult case – it’s an easy, obvious one, again assuming the facts as we know them today.”  And as to whether Saipov has any “nexus to any armed conflict”–probably not, but cf. the footnote * below.

* As Steve and I have explained, and as Ryan has suggested, it is possible that one of the AUMFs might be construed to permit the U.S. to detain, in a temporary internment capacity, civilians whose support for the enemy makes such detention “absolutely necessary,” or for “imperative reasons of security,” akin to the permissible, but temporary, detention of protected civilians in international conflicts under articles 42 and 78 of the Fourth Geneva Convention.  The government has never asserted or tested that theory of detention authority, however; and, in any event, presumably that form of internment-like detention is not what Senators Graham and McCain have in mind–they were referring, instead, to status-based military detention until the end of hostilities . . . but Saipov does not appear to be eligible for that, more common, form of military detention under the AUMFs.


Photo Credit: Marine Corps Gen. Joseph F. Dunford Jr., chairman of the Joint Chiefs of Staff, visits Joint Task Force Guantanamo, Cuba, March 9, 2016 – DoD photo by Navy Petty Officer 2nd Class Dominique A. Pineiro