Below is my column in USA Today on Donald Trump’s statement that he thinks that American citizens should be tried at Guantanamo Bay with other “terrible people” accused of terrorism. I have previously criticized Hillary Clinton for her views on free speech and executive power. However, the suggestion that U.S. citizens could be sent for faux trials at Gitmo is truly chilling. Here is the column.
Donald Trump and his supporters have long objected to an alleged media bias in favor of Democratic nominee Hillary Clinton and the portrayal of his every statement as revealing an authoritarian or even fascistic agenda. Some of these objections are well-founded, but Trump continues at times to display a deeply troubling failure to recognize constitutional protections and limits.
The latest example is Trump’s statement that he would try American citizens in military tribunals at Guantanamo Bay. It was an unnerving thing to say, and an ironic moment for a man who has campaigned on the significance of citizenship in his promised crackdown on illegal immigrants. It would seem that citizenship is important enough to deport undocumented persons, but would do little to guarantee constitutional rights for those deemed unworthy by a President Trump.
Trump’s comments came in an Aug. 11 interview with the Miami Herald. Asked if he would use the tribunals against U.S. citizens, he responded: “Well, I know that they want to try them in our regular court systems, and I don’t like that at all. I don’t like that at all. I would say they could be tried there, that would be fine.”
I have long been a critic of military tribunals as constitutionally dubious and practically ineffectual institutions. The tribunals at Guantanamo Bay have cost hundreds of millions of dollars, produced few actual trials and undermined the standing of the United States as a nation committed to the rule of law. Since 9/11, the military tribunals (or “commissions”) convicted only four terrorists while the criminal system convicted over 400 at a fraction of the per-case cost.
As an attorney who has long practiced in the national security field (including terrorism cases), the tribunal system has never made a great deal of sense to me. Federal courts have long tried terrorists and the government has a high success rate in such cases. The creation of a faux court system gives our enemies a rallying cry and fuels those who call us hypocrites.
Defenders of this system from the Bush and Obama administrations have long stressed that such tribunals would not be used against U.S. citizens. Yet Trump dismissed such distinctions and suggested that he would play a Caesar-like role in allowing some citizens to receive real trials in our federal courts while sending others to military tribunals for perfunctory proceedings.
Let’s be clear. This is not up to Trump. While he may consider it “fine” to have citizens carted away to Guantanamo, it would also be unconstitutional. Congress can create new courts, but it cannot create new courts designed to deny constitutional protections under the Bill of Rights.
Trump has raised legitimate points about the conditions and definition of citizenship in the immigration debate. However, the very point of this debate is to determine who is entitled to enjoy the benefits of citizenship. The most important benefits are found in the Bill of Rights. We are defined as a people by those rights, our common article of faith in the rule of law. Trump’s inclination to dismiss such due process rights is chilling.
The November 2001 order signed by President George W. Bush authorized the secretary of Defense to detain and try by military tribunals any person who was, among other things, “not a United States citizen.” Trump would apparently dispense with that distinction and send citizens for proceedings widely described as “Kangaroo courts.” Citizenship would offer little protection to Americans he declared to be a danger or, as he put it, “terrible people.”
But there is no dual track for “good citizens” and “terrible citizens” under our laws. We are just citizens as defined by our Constitution. If Trump truly wants to take the oath of office Jan. 20 to “preserve, protect and defend the Constitution of the United States,” he needs to recognize the core guarantees of that defining document.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.