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.
@BLM Dog
I know little doggies aren’t good readers, sooo listen while Squeeky explains this to you!
The Nuremburg Trials were MILITARY TRIBUNALS.
You know, “Kangaroo Courts” and “faux trials.”
Now, run along and quit pooping in the house!
Squeeky Fromm
Girl Reporter
America was once a self proclaimed “exemplary nation”. After WWII we prosecuted Germans and other Nazis at The Nuremberg Trials. One portion of that set of trials was The Judges Trial. We prosecuted Germans for doing what Trump wants us to do at Gitmo.
If torture is banned, then why do we need an out of country torture facility?
The worst of the worst should be charged with a crime and then given a trial.
If you are such a sadist as SFGR is then just try them, release them and then drone them if that makes your sick ass happy.
At least they would get a trial.
The days of Richard Bruce Cheney’s role in the staining of our reputation as a fair and just nation need to go.
One of the issues that Trump will have most difficulty accepting is that he cannot control what the media says about him, biased or not. His army of lawyers ready to sue for libel and slander will not be able, nor should they, protect him should he become President.
This is something Bush deeply understood, and handled with class. The media is going to hate him. The media should view each and every President with a deep level of distrust, because that keeps them honest. The public deserves to know the truth about power, not be left with a State propaganda machine, like we have lately seen.
What he should do, and which I doubt he will be able to, is to consistently take the approach that he disagrees with what the press says about him, but he’ll fight to the death to protect their right to do so. And perhaps focus his efforts on getting accurate information out rather than spin or punishment.
The other issue is we have a court system that can handle crime, including treason, should an American be found aiding and abetting Al Qaeda, ISIS, or any other entity with which we are at war. Military tribunals are for foreign combatants or for the military.
First and foremost, before the economy or terrorism, we must safeguard our Constitution and the balance of powers. I have very grave doubts about both Presidential candidates’ commitment to doing so.
Readers should look up one of the last episodes of the CBS show “The Good Wife” dealing with these issues. This show was almost always spot on dealing with these types of legal issues in our forever “War on a Tactic”.
In the episode, the actors portraying attorneys were hired as government consultants on the Drone Program and issued gag orders not to talk to anyone about their consultation.
The attorneys were asked to assess the legality of assassinating a teenager in Pakistan. Attorneys that ruled it was indeed a war crime were essentially fired by the government.
Once the “Yes Men” attorneys signed off on the illegal assassination, the attorneys found out that the U.S. Government was using “pseudonyms” and they really assassinated a teenage boy in Texas. Apparently Congress created the appropriate ambiguity in the laws where they really weren’t talking about Muslims but Christians.
This show has a long track record of being spot in legally! Just something to consider when giving someone like Trump unchecked power.
RB – the DNC and the Obama Administration have its tentacles in the major TV networks. They whistle and the networks wag their tails. Why do you think there is a program called Madam Secretary? Why is the feel good issue of the week on all the channels? It is because the master has whistled.
In case you were on the fence whether or not Trump is and apparently always was a shill to insure Hillary wins, this should confirm the answer in the affirmative.
May Trump rot in hell, and even that’s too good a fortune.
Squeaky Fromm Girl Reporter:
Based on the government’s own records 86% of Gitmo detainees since 2001 were SOLD to coalition troops by extremely poor adversary tribes for huge financial bounties – we paid millions of dollars to poor trial chieftains in places like Pakistan to basically turn over people they disliked, which is hearsay evidence at best. There was no evidence whatsoever this 86% were bad guys.
Traditionally during wartime on a real battlefield, you might have a building where they may be 2 shooters shooting at our troops. If there are 100 people in the building, we may detain and interrogate those 100 people for a period of time until we get to the truth. In such a situation, you have U.S. troops that witnessed the attack. 86% of Gitmo detainees didn’t meet that standard according to the United States government own records and therefore the military justice system had no legal jurisdiction over them.
This is not primarily about giving foreigners a fair trial, it’s about how best to get to the truth. Intelligence agencies provide very important information but it is highly inaccurate information. Although most Intel and law enforcement guys are probably somewhat honest, there are many that will fabricate evidence as well.
@RB
You said above, “If there were hard evidence to locate them, it would be preferable to capture them to obtain more intelligence and then provide a confrontational trial to get to the truth. Federal trials have successfully convicted over 400 terrorists, Guantanamo has resulted in “0” convictions.
The point is if you receive an anonymous video, there has to be some hard evidence to get the right guys.”
Darn straight! You sure do IF YOU ARE GOING TO CRIMINAL COURT with them! Here’s the rub. They don’t make enough people to get the hard evidence. This is from June 2016 following the Pulse Nightclub Massacre:
The reality is, that we are never going to be able process large numbers of terrorists through a criminal justice system and legal system that is geared toward protecting individual rights. We are even less able to do so if the individuals are part of a gang, jihadi klan, or terrorist network.
Why do you think we still have an FBI Mob Unit, and why do we still have a Mob? Sheeesh, we have been after the Mob since the 1940s. And there is still a Mob. It is because while our laws work enough to let us prosecute an individual here and there, the laws are not geared toward dealing with GANGS, or with GROUPS of terrorists/criminals. That failure with the Mob means we have more corruption, and life goes on. Mobs and gangs mostly kill other mob and gang members. So who really cares? And think what happens when an innocent is gunned down in a mob hit? Then we get a little more proactive.
But when that same systemic failure is applied to terrorists, who just kill us for being Americans, it also still isn’t going to work, when and if large numbers join the parade. Then, the victims are going to be soccer moms, and kids at a mall, and homos at a club. Then, I suspect there will be less fastidiousness with how their Miranda Rights and due process.
I think Duterte in the Philippines is onto something workable, and is part of a coming New Wave of more-effective crime control.
Squeeky Fromm
Girl Reporter
@Paul Schulte —
“Jill – military tribunals are legal in my opinion, regardless of who the President is. There is precedent for it.”
You could not be more wrong. Military courts have no authority to try civilians when civilian courts are available. Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866). It’s still good law.
Porkchop – as I cited a couple of days ago, civilian spys were tried by military tribunals during WWII. Evidently they ignored Milligan.
Squeaky Fromm Girl Reporter:
Pertaining to your photo and comment at 1:29 above. According to news accounts and official government statements, it appears that most of the time that these videos are sent anonymously without fingerprints or any identifying information.
In other words there are very evil guys but we don’t know who they are. There has to be some form of circumstantial evidence in order to find the bad guys. Those providing the evidence need some form of legal risk to deter perjury or fabricating evidence by accusers and witnesses. (Watch the true life movie “Fair Game” sometime about what can happen if you skip this process).
If there were hard evidence to locate them, it would be preferable to capture them to obtain more intelligence and then provide a confrontational trial to get to the truth. Federal trials have successfully convicted over 400 terrorists, Guantanamo has resulted in “0” convictions.
The point is if you receive an anonymous video, there has to be some hard evidence to get the right guys.
@RB
If you have a relatively small number of defendants, then a criminal court will work about as well as any. But that is the problem with trying to address Terrorism as a criminal matter. There are large numbers of jihadis, and sooner or later, they will be here. I am not sure that you will continue to see low numbers.
Your contention that Gitmo is filled with a flock of innocents however, is laughable. There are estimates that at least 30%+ return to the fight. And we don’t know where most of the others are.
I suspect that if ISIS manages to detonate a dirty nuke in New York City, then the concern over where they are tried, will be of less concern. I also find fault with the whole “kangaroo court” and “faux trial” smear. I do not believe those charges are warranted at this time. To me, that is on a par with the conservatives’ claim that med-mal lawsuits are always frivolous, or that when some poor peon sues a bank or big corporation, that it is a “frivolous lawsuit.”
Squeeky Fromm
Girl Reporter
Gitmo is an abomination for ALL who end up there. Should it be shut down? It never should have been opened. A real travesty that puts us in the same category as every nation that systematically tortures those who disagree with the dictator. Saddam was a bad guy? We have become worse.
When we ignored our transformation from a constitutional to utilitarian republic, we gave away our legitimate right to be secure in our lives, our liberty and our property. The experiment in self-governance is finished and the answer is no. No society that becomes ignorant of history, apathetic towards the security of their unalienable rights and dependent upon the state for that which they could attain of their own free will, should expect anything other than what we have become. I used to have hope that another “long train of abuses and usurpations,…” would be enough to inspire the people to want less of this government, but it won’t happen. When it comes to natural rights and the purpose for government, we are living in the Dark Ages compared with our enlightened,18th century relatives.
How we have “progressed”.
OK, got the pic where it will fit here! About that whole “kangaroo court” thing. Its been said before.
https://pbs.twimg.com/media/Cp603buVIAAPrNN.jpg
Squeeky Fromm
Girl Reporter
Another historical response to the whole “Kangaroo Court” smear.
https://pbs.twimg.com/media/Cp6z99IUsAA__H8.jpg:large
Squeeky Fromm
Girl Reporter
Squeaky Fromm Girl Reporter:
Everyone wants to bring the bad guys to justice, but punishing the wrong people serves nobody’s interest. More than 80% of Gitmo detainees were NOT captured on any battlefield and there is no evidence linking them to any wrongdoing – they were SOLD to coalition troops by adversarial tribes for huge financial bounties. That is based on the government’s own records.
A confrontational “Trial” is the most accurate process for punishing the right people, MORE accurate than any intelligence agency, which operate largely from calculated guesses and assumptions – not testimony made under penalty of perjury by witnesses.
Intelligence is highly inaccurate, Article III courts are far more accurate than Intel agencies. Punishing the wrong guys actually makes all of us less safe.
Paul, I wanted to add one more thing.
I have noticed that people appear to believe “their” president and party will be in power forever. They love and trust “their” president, even adore him. No matter what crime they commit, however heinous, it was only an expression of “their” president’s desire to keep America safe, to protect the children, to be strong in the face of extensional danger to their children, the American people. “Their” president cannot, must not be questioned or stopped in any way because these are good men who want nothing other than to keep America safe.
And so it goes. Lawlessness, atrocity, war and torture, mass surveillance, stripping of the constitution–all good because “my” president is a good man who wants to keep me safe. Then a funny thing happens on the way to the new security forum. The wrong president gets elected! But strangely, all the powers of the benevolent president transfer to the new, evil president of the other party. Disaster!!!
Perhaps it was a disaster for any person to have these powers in the first place? People need to oppose the stripping out of justice from this nation and the world even when “their own” benevolent leader is the one doing it. We see the results of not doing so as this nation circles the drain, dragging down the rest of the world right along with it.
And, why does JT ASSUME it would be a faux trial???
Heck, the way the military has been femmed up, gayed up, and trannied up, a miltary tribunal would probably look more like the faculty at Harvard or Berkeley.
Squeeky Fromm
Girl Reporter
Assuming arguendo, that Trump meant that, I respond:
https://pbs.twimg.com/media/Cp6sabUUMAA-cwM.jpg
Squeeky Fromm
Girl Reporter
Paul,
Here is a sites about what is happening in Gitmo:
http://www.andyworthington.co.uk/
Now, do you feel it is acceptable for a president, Clinton, Obama or Trump to send people to Gitmo on their own say so? Are you good with that? If so, why is this O.K. with you?
Your source is VERY biased.