The Trump Administration’s response to last week’s attacks in downtown Manhattan could go either of two directions: The United States could continue to flounder with indecision about how to handle those accused of violent attacks, or it could stop equivocating and take a clear stand on the side of the rule of law. This is a perfect time for President Donald Trump to do the latter.
Politics has so far muddied the waters. After the attack on Tuesday, Republican Senators Lindsey Graham and John McCain called for the suspect to be held as an enemy combatant rather than arraigned as an accused criminal. Although they didn’t spell it out, that would likely have meant sending the 29-year-old Sayfullo Saipov to the U.S. military prison at Guantanamo Bay, where the U.S. detains other so-called “enemy combatants.” Neither senator mentioned that he’d previously supported closing the controversial detention center in the interest of U.S. national security.
Trump, for his part, didn’t know what he wanted to do. Responding to questions from reporters the day after the attack, he said he’d “certainly consider” sending Saipov to Guantanamo. White House Press Secretary Sarah Huckabee Sanders announced later that day that Saipov would be treated as an enemy combatant. Then, hours later, prosecutors charged him in a federal civilian court. Trump then tweeted: “would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system…”
Trump was right about that. Guantanamo proceedings are too slow, among other problems. Even the accused 9/11 attackers haven’t been brought to justice there yet, 16 years after those attacks took place. That’s far too long for survivors and family members to still be waiting for accountability.
Last week’s events at Guantanamo only underscore the absurdities and ineffectiveness of that system. On Monday, the judge presiding over the prosecution of Abd al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole in Yemen, actually ordered the detention of the military commissions’ chief defense lawyer, Marine Brig. Gen. John Baker. Baker had excused three civilian defense lawyers from handling Nashiri’s case after they claimed the government had interfered in privileged attorney-client communications. This was only the latest in a series of credible claims that the government had intercepted privileged communications, whether by hidden audio devices, seizing defendants’ files or searching defense teams’ computers. But military commissions judge Air Force Col. Vance Spath decided Baker didn’t have authority to release the lawyers from their assignments and held him in contempt of court – confining him to his quarters at Guantanamo and fining him $1000. Baker then sought habeas corpus relief in a U.S. federal court in Washington, D.C. – underscoring the now widely-held view that no one involved in the military commissions system can get a fair hearing. (On Friday, Baker was released from his house arrest.)
Trump now has a perfect opportunity to make a break from this failed policy of his predecessors and take a strong stand. He can close Guantanamo and shut down the senseless military commissions. He can transfer anyone cleared to leave to other countries willing to accept them, and transfer the rest to the United States for civilian trials. He could in effect become the “Rule of Law” president – making clear that the U.S. doesn’t dither when it comes to attacks on U.S. soil or against U.S. citizens or personnel. He can make clear that the U.S. takes a strong stand that all attackers will be swiftly brought to justice – fairly and effectively — in the U.S. federal justice system, which has proven itself, as Attorney General Jeff Sessions said on Thursday, extremely effective by prosecuting hundreds of individuals on terrorism-related charges.
Shutting down Guantanamo and ending the military commissions would also be a way for Trump to reach out to lawmakers in both political parties, since he’ll need their cooperation to transfer detainees to the U.S. for trial. And it would go a long way toward mending troubled relationships with U.S. allies in Europe who have long criticized Guantanamo and even refused to extradite suspects or otherwise cooperate with U.S. counterterrorism efforts because of it.
If Trump were to shutter Guantanamo and end the military commissions, he would be accomplishing what none of his predecessors were able to do, despite President George W. Bush and President Barack Obama saying closing Guantanamo would be the right move.
This wouldn’t be just a win for Trump, of course, but a win for the U.S., and for the rule of law as a whole. It would also be a huge savings for U.S. taxpayers.
Guantanamo has cost the U.S. government around $6 billion, and continues to cost more than $445 million per year, all to hold just 41 detainees. It’s a bad situation all around that serves no one–except perhaps armed extremists who continue to use Guantanamo, and its history as a site of torture and lawlessness, to recruit new followers.
To be sure, as a candidate, Trump promised to “load up” the detention camp in Cuba with “bad dudes.” He also promised he’d support torture by “waterboarding and worse,” and that Mexico would pay to build a wall along the U.S. border. Now that he’s in office, he’s learning the realities of governing, if not the human rights violated by these policies, and may be recognizing that some of his earlier promises may not actually be very good ideas.
If Trump really wants to break with his predecessors’ policies, as he claims, this would be one bold way to do it.