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.
Heard a rumor that Trump, if elected, will move the prison in Gitmo to Sverdlovsk and that Manafort is going to own the prison facilities through a holding company as a cutout for unnamed Russian oligarchs. Holy K-k-k-k-kim Philby, Batman.
Paul:
Have you followed Chelsea Manning’s treatment under military control?
Manning is experiencing low grade continuous torture.
She/he is guilty as hell, but that kind of treatment violates the 8th Amendment.
We as a country were should be better than that – and it is up to American citizens to demand that our leaders respect the Bill of Rights.
Steve – the tribunal is not torturing him, the military facility is.
Instead of worrying about what Trump sez and may or may not do I think we need to focus on a clear and present danger: the TPP (which will certainly have tribunals)
Obama is trying to get it through and we know HRC is for it.
A legitimate confrontational “Trial” is the process for finding out what the truth is. An Article III (Judicial Branch) trial is far more accurate than any “truth” obtained by an intelligence agency. None of us know what the truth is without a confrontational trial and discovery process.
For example: anyone can be photographed with the guy delivering pizzas and deemed guilty based solely on doctored photographs and other circumstantial evidence. By confronting the suspect in court, in a timely manner, the suspect can deny or clarify what the photograph or circumstantial evidence is or isn’t.
Confrontation is vitally important to reaching the truth because their is a healthy risk of perjury for the “accusers” and witnesses. In other words why did the official falsify reports or withhold exculpatory evidence.
In Guantanamo, most (exceeding 80%) detainees were never on a battlefield or any evidence linking them to taking up arms against us – so the military tribunal didn’t have proper jurisdiction in the first place. Even military tribunals operate more accurately with a confrontational trial process where there is a healthy legal risk to accusers and witnesses for committing perjury.
You’d think that Trump would be easily defeated just by his buffoonery, his arrogance, his lack of knowledge, his narcissism, but those characteristics apparently appealed to primary voters. So the Dems now have to demonize everything he says, including the stuff that actually makes good sense. Trump says a little bit of everything. He’s trying to please everyone – racists, misogynists, bigots, gun nuts and also progressives, pro-choice folks, anti-war folks, anti-corruption folks. It’s a tough job but somebody’s got to do it.
Every time MrTrump makes one of his famous proclamations regarding his power he will assume once in the Oval Office is remarkable and I think beneficial. This latest example shines light on the whole concept of Guantamo and military tribunals. His casually mentioning his reluctance to support NATO members that are dilinquent with their dues brings attention to the efficacy of NATO itself. His hammering of Jeb Bush during the debates about the value of our endevour in Iraq was unspeakable in Republican
company but said what hasn’t been said and needed to be in the worst ways.
Hes certainly predictably unpredictable but his comments make us consider the validity of our behavior and challenge buried assumptions about our direction and ambitions as a nation.
I predict he will accept a severance fee of several hundred million dollars to step aside here shortly and walk away with a deal that only he could negotiate.
Minimal investment, massive return on his brand and will have provided a note able service to the dialog of our nation.
Thank you Donald J Trump
Paul,
Trump is saying he gets to pick out any persons he believes are “terrible” and put them into the military tribunal system.
Obama says he gets to pick out any person he believe is “terrible” and kill them via drone.
There is no other basis for the decision to try someone in a military tribunal or kill them via drone other than the president’s own say so. Why isn’t this a dictatorship?
if you object to Obama pointing the bony finger of death on other people, why do you not object to Trump pointing the bony finger of military tribunals (which will include torture) onto others?
The law covering military tribunals is very complex and they only cover certain circumstances. Those circumstances are irrelevant to this discussion because what Trump is saying is that he, on his own say so, will send people to Gitmo for military tribunal.
That’s a dictatorship. Even though you may think the press isn’t fair to Trump, and I agree with you on this, you are still agreeing that Trump will be a dictator, not a president.
Jill – actually the President does have the power to send people to Gitmo right now. Congress gave it to him. I am not sure where you get the idea that military tribunals include torture. Where in the process does the torture begin and end?
I have seen video recordings of military tribunals and no one was tortured.
This bureaucratic state and the oligarchs that created it will NEVER allow a constitutionalist anywhere near the office that leads it. Maybe Trump understands this and that explains why he has never said he will restore the rule of law and respect the separation of powers. Not likely however. Had he even hinted at that he would’ve been buried right next to Ron Paul and Ted Cruz.
At this point in our republic’s lifecycle, we NEED 4+ years with a President that will begin to restore the confidence and trust of the American people that the government WILL place EVERYONE subordinate to the rule of law. We won’t get it of course. Instead we will get an even greater loss of civil liberties and very likely the protected right speak or defend ourselves against these losses.
This will not end well.
More important than the candidates themselves, are the “U.S. Supreme Court Justices” that the next president will choose.
Constitutionally speaking, this current court has refused to provide timely “judicial review” and even harmed many constitutional rights like free speech, guilt-by-association, unconstitutional searches, eminent domain (seizing private property for non-government purposes), Habeas corpus, illegal ex post facto laws by Congress.
Maybe the most outrageous high-court decision was placing the “burden of proof” on defenseless domestic spying “victims” – defenseless citizens had to prove they were being spied upon by the most powerful spy agencies on Earth.
In other words, the top duty of the Judicial Branch is to penalize and stop the political branches of government from stepping “out-of-bounds” constitutionally. This court acts as though it’s subordinate to the other co-equal branches, refusing to overturn unconstitutional legislation by Congress.
The 2016 election is about U.S. Supreme Court picks!
Just look at how orange Kardashian pathetically threatens pulling credentials for the New York Times and other outlets with which he disagrees. He fails to understand the difference between libel as a private citizen and (justified) criticism of a public figure. In another country he’d easily become tyrant Trump.
(And it doesn’t require reading Freud to see how he desires pharaoh-hood: building gold towers in which he sits on gold furniture whilst peering down upon all those ant people.)
Imagine if President Obama removed Fox News from the press room. The Second Amendment people would be up in arms. Believe me, believe me.
Trump is a know-nothing surrounded by know-nothings who are all successful only at peddling BS. And those who can’t see that are the dummies who provide him with monetary success.
Just witness the arrogance when that family exits the Trump helicopter. They think their $#it is chocolate ice-cream.
Dave137 – even the hoi poloi have noticed the hatchet job the press is doing on Trump. And if he pulls the credentials for his press conference, at least he is giving them.
Paul,
We are in a state of illegal war and war does not suspend the Constitution. If you support Trump deciding that some people will get a military tribunal and others will get a civilian trial on his say so, you have turned him into a dictator by your own hand.
You have never supported, to my knowledge, Obama having the right to pick out people he wants to assassinate. What you are suggesting here is giving Trump the same kind of dictatorship that left wing people have handed over to Obama. What is the basis for complaining about Obama but supporting Trump for acting in the same manner?
We have a Constitution and a civilian court system. I don’t know how much of the system at Gitmo you know about. These are not fair trials. Gitmo itself is breaking the laws of warfare. Torture occurs there. Surely, this is not something you want for other people?
When you start leaving it up to one man to pick out who he thinks is “terrible” and allow him to point his finger at the person and decree they will be put into a system of non-justice which is contrary to our laws, you have just helped create a dictatorship. I don’t think you want that.
Issac, it is a mistake to think that Clinton will follow the rule of law as president. She has already broken the rule of law as SOS, for example, phoning in assassinations by cell phone! Do not seek justice from such a person or pretend they are the lessor of two evils.
Jill – military tribunals are legal in my opinion, regardless of who the President is. There is precedent for it. It is also a fight the Republican and the Democrats have been fighting since the USS Cole was attacked. Should it be handled by civilian courts or military courts?
Hillary is just Obama 2.0. And he is letting them out of Gitmo and back into the field where they can kill us.
A military tribunal is not a faux trial. We are at war. Military tribunals handle this sort of thing during war. It is not a criminal offense.
Kind of illustrates the ‘lesser of the two evils’ thing. Clinton, with all of her shortcomings and Bill’s thrown in for good measure, still comes no where to the insanity that would be a Trump Presidency. Clinton for President for eight years and then move from the bottom up: remove massive concentrated funding for candidates, and so on.
People who wildly cheer Trump, like those who cheer Clinton and Obama, seem to be dead to the policies of those whom they cheer. If citizens will not stand up for the rights of all people under our Constitution then we do get the govt. we deserve.
I feel that Trump, Clinton and Obama are “terrible citizens”. Clinton and Obama have committed war crimes. It doesn’t get much worse than that. Trump will commit war crimes on the unlikely event that he become president. Does this mean that I believe these people should be put into Gitmo and given “fake trials”? No, I do not.
Emphatically, each person, no matter how vile, deserves the rights guaranteed under our Constitution. If we don’t stand up for even someone like Dick Cheney or Obama or Bush or Clinton or Trump, then we don’t believe in the rule of law and we don’t value justice.
We should value justice. Our govt. and its minions do not. We are the thin brave line of ordinary people who say, we mean this nation to act with justice even as the powerful try to remove it from this earth. Be that person!
“We should worry more about what decisions the president gets to make than who becomes president after next year’s election.” (Doug Bandow, Cato Institute)
The American Founders created a constitution designed to make it difficult for any one person or any faction, even a majority faction, to gain too much power. They made the constitution difficult to amend, and properly so. Amendments require a general consensus rather than a simple majority or plurality – which tends to protect the rights of the minority against the tyranny of the majority.
We abandoned that system during the 20th and 21st centuries, in favor of many changes over time, large and small, that cumulatively created an imperial presidency and powerful administrative state. Increasingly, these changes have been ratified by a simple majority of five on the Supreme Court rather than through the amendment process. This process is bound to continue in any “government of men over men” (Madison). Strict separation of powers and federalism are the only possible protections from this sorry state of affairs. Alas, we have no angels to govern us.
“Waiting.. to cut out the deadwood.
Waiting… to clean up the city.
Waiting… to follow the worms.
Waiting… to put on a black shirt.
Waiting… to weed out the weaklings.
Waiting… to smash in their windows and kick in their doors.
Waiting… for the final solution to strengthen the strain.
Waiting… to follow the worms.
Waiting… to turn on the showers and fire the ovens.
Waiting… for the queens and the coons and the reds and the jews.
Waiting… to follow the worms.”
If Second Amendment supporters think Trump will protect your “constitutional” gun rights – think again!
Trump can’t violate the 14th Amendment rights of immigrants and LGBT people, or violate the 1st Amendment religious rights of Muslim-Americans or violate the 4th Amendment with warrantless spying and Stop & Frisk – while cherry-picking the Second Amendment for protection. Once you start sacrificing liberties for the perception of better safety and security – that trade off applies to all constitutional rights including gun rights.
The U.S. Constitution and Bill of Rights is a package deal, you take all of it or none of it – that’s how the Judicial Branch court system functions.
Real Second Amendment supporters should be demanding other amendments (1st, 4th, 5th, 6th, 7th, 8th, 9th, 14th and 15th Amendments) be restored fully -or- demand a constitutional amendment if an amendment is fundamentally flawed. Trump in no way supports restoring the constitutional “rule of law” which includes the Second Amendment.
Yeah, you have to really love the criteria for getting hauled off in the middle of the night. Terrible person….??? well for me, that would be the entire punk rock movement. So… would that mean…
Geeeeez. But then there’s “Let’s get WWIII going right now” Hillary… pick yer’ poison…
The definition of who is a “terrible person” would be a very slippery slope under Trump.
We are seeing the Bill of Rights being gutted.
The left is after the 2nd.
Both parties acquiesce to ignoring the 1st, 4th, 5th, and 6th.
The right destroyed the 8th.
This concept (introduced by Bush 2) of extrajudicial killing by the executive (deeming an American an enemy combatant) without judicial review is an abomination.
Now Trump proposes taking this lawlessness one step further.
What has happened to the Bill of Rights is part and parcel of the “protected” not facing the same legal standards that the rest of us face (eg Hillary being given a pass for crimes that would put the rest of us in jail).
The “protected” (Washington elites, police, journalists, the rich, etc) are governed by a flexible and forgiving set of rules.
The rest of us face a much harsher set of laws (imagine going up to congress under inquiry and proposing to tell the “least untruthful” story (Clapper). We would be in irons before the day was out.