TRUMP’S TRIBUNALS: THE GOP NOMINEE EMBRACES USE OF GITMO TO TRY CITIZENS

Camp_x-ray_detainees495px-Donald_Trump_by_Gage_SkidmoreBelow 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.

73 thoughts on “TRUMP’S TRIBUNALS: THE GOP NOMINEE EMBRACES USE OF GITMO TO TRY CITIZENS”

  1. Investigating whether or not IUD’s have been placed is the role of the Special Victims Unit.

  2. Hold on. I meant to say “military and foreign combatants,” not “our military” – that would be a court martial.

  3. Paul:

    “as I cited a couple of days ago, civilian spys were tried by military tribunals during WWII.”

    That’s interesting. I was under the impression that military trials were for our military and foreign combatants. I had not realized military tribunals would be applied for espionage, although I can see how it is consorting with the enemy. What are the rules governing their use?

  4. I think that the Second Amendment gives us citizens the right to own and use drones. So when Al Sharpton calls in his gang and they burn the convenience store on W. Florissant on the edge of Ferguson, the people of Ferguson should be able to fly their drone over Harlem and bomb Al Sharpton. Turnabout is fair play.

  5. Thanks to JT and all previous commenters for this discussion/debate. Having read it all so far, I have concluded that the nation will definitely be better off with Donald Trump as President.

    The reason for this is what I see as the currently extreme power of the federal government. From abuse of RICO law and eminent domain to the Patriot Act; President Obama’s circumvention of supine Congress with executive orders; the IRS and other agencies targeting people on the basis of politics, etc, etc.

    Given all that and more, or remove some if you disagree — we need Trump for president because most of the press will not question anything Hillary Clinton does or says. We need an adversarial press, because it keeps (Republican) politicians on their toes. Democrats could practically commit atrocities on the White House lawn, and most reporters would still focus on how wonderful they are when they express empathy for [insert plight of favored sympathetic persons or memes here].

  6. I think that is well summed-up Olly. There is another whole level of hammer that can be dropped on us yet, and I think many realize it.

  7. That’s an interesting point Olly and would explain many things we see around us.

    I don’t think I’d call the US a utilitarian republic because as I understand those words, we are neither utilitarian or a republic. But you may mean something different from what I’m thinking. Still, I believe your idea accounts for a lot of the “team” thinking we see which translates into amazing hypocrisy and essential agreement for totalitarian govt. on the right and left!

  8. “What is making people, left and right, so willing to suspend our Constitution? I understand people are afraid. But that is no reason to abandon the rule of law.”

    I believe people realize it’s already suspended. We are now a utilitarian republic and their fear is they will be trampled under the “rule of law” of the wrong regime. If that weren’t the case then elections wouldn’t matter so much. They would remain secure in their own life, liberty and property, even if the “wrong” regime was pulling the strings.

  9. Yes, we have finally arrived at the state of affairs the military industrial complex has been trying for all these years–a state of perpetual war. Crank up the fear. Hype up the enemy. Crank up the band. Never mind what the rest of the world spends on weapons of war. We outspend them all.

    A perpetual state of war means that we can always declare people, anyone really, a combatant and haul them off to Gitmo. A perpetual state of war means that our military and national security budget will continue to consume any share of peace-time investments we might be considering. A perpetual state of war means we don’t need an excuse to interfere in the affairs of other nations at any level. We will continue to sell arms of all types to people on any side of any battle and then go to war with them…eventually if not immediately.

    By some accounts, the United States has been at war for more than 90% of its existence. Apparently that’s not enough. The Pentagon reports that AT LEAST $8 TRILLION dollars is missing and they cannot account for it. They have no idea where they spent or lost or gave it away. No one cares.

    What’s at stake here is not whether Guantanamo will stay open or be closed. What’s at stake is whether we will continue to buy into this idea of unending fear, the torture of other human beings, and the perpetual war in which we are now engaged.

  10. Sqeeky,

    It would be difficult to round up the many members of our govt. who are engaged in illegal actions both in the US and abroad, but I have faith that the civilian justice and law enforcement apparatus at hand could do the work if they wanted to!

    What is making people, left and right, so willing to suspend our Constitution? I understand people are afraid. But that is no reason to abandon the rule of law.

  11. @Roscoe

    I fully expect it, for not following the politically correct party line.

    @RB

    I still think you are missing the point, which is: The criminal justice system is not well adapted to handling large numbers of people acting in collusion, as a group. It can’t even handle the Mafia. It might be able to handle small numbers, but not large numbers. My SUV can handle 7 people. It can not handle 70. Because it ain’t built for that. For 70 people, you need a bus.

    Neither is the criminal justice system built to handle large numbers of people behaving badly, as a group. Thus, we have this thing called “The Military” which has weapons designed to kill large numbers of people at one time, and well as well armed soldiers who act in unison to kill large numbers at one time. Sometimes, they kill innocent people. It is called “collateral damage”. It is a part of war. Should the terrorist war come to our shores, in a bigger way, get prepared to lose your finickyness. Or your life.

    You can gripe and moan about innocence and stuff, and maybe you are even right at some point. But you still have not provided a cogent response to the whole “evidenciary” and “criminal procedure” problem. Which is relevant in court, but a lot less so in a Military Tribunal.

    Squeeky Fromm
    Girl Reporter

  12. @ Paul Schulte

    “Porkchop – you are right on that, but this is a different case.”

    Yes, it is — one that involves US citizens and, thus, would be governed by Ex Parte Milligan.

    The law is: non-citizens who enter the country to commit sabotage during a time of declared war — Military tribunals OK

    US Citizens charged with offenses against the laws of war while in a battle zone — Military tribunals OK

    US Citizens with a bad attitude toward the United States while outside the United States in areas that are not actually battle zones — Summary execution by drone strike seems to be the solution, even though the legal basis is highly questionable

    US Citizens charged with offenses within the United States in areas not under direct military control during time of declared war — Military tribunals NOT OK

    US Citizens charged with offenses within the United States in areas not under direct military control NOT during time of declared war — Military Tribunals EVEN MORE NOT OK

    1. Porkchop – from Wikipedia

      During World War II, President Franklin D. Roosevelt ordered a military tribunal for eight German prisoners accused of espionage and planning sabotage in the United States as part of Operation Pastorius. Roosevelt’s decision was challenged, but upheld, in Ex parte Quirin (1942). All eight of the accused were convicted and sentenced to death. Six were executed by electric chair at the District of Columbia jail on August 8, 1942. Two who had given evidence against the others had their sentences reduced by Roosevelt to prison terms. In 1948, they were released by President Harry S. Truman and deported to the American Zone of occupied Germany.

      Two of those convicted were American citizens.

  13. “The stated intended purpose of the Guantanamo Bay Detention Center (GTMO) was to
    house the most dangerous detainees captured in the course of the Global War on Terrorism.
    Founded in 2002, the commander in charge of detention operations, Brigadier General (BG)
    Rick Baccus, effectively operated the camp as a facility for housing prisoners of war. As POWs,
    the detainees were entitled to basic human rights afforded under the Geneva Conventions.
    Pursuant to typical military command structure, BG Baccus answered to the United States’
    Southern Command (SOUTHCOM). Little did he know, however, the Executive Branch had
    created a second, secret chain of command, forging direct access between intelligence officials to
    the President of the United States.

    The intelligence commander and head of this second chain of command, Major General (MG) Michael E. Dunlavey, received his marching orders directly from President George W. Bush. These orders commanded MG Dunlavey to debrief Secretary of Defense Rumsfeld once a week, in person, on matters of intelligence, which avoided placing any record of their discussions in written form. MG Dunlavey’s predecessor, MG Miller, also reported daily to the Secretary of Defense once per week by telephone. This arrangement
    operated beyond the scope of the established military chain of command.

    What was it that the Executive Branch was so eager to gain from intelligence at GTMO? Results. The continued pressure effectively created GTMO’s alter ego.

    Out of it emerged America’s “Battle Lab,” as M G Dunlavey and MG Miller both referred to GTMO. Every lab
    must have its test subjects and GTMO was no different; its rats were human beings, detainees. Instead of receiving POW treatment, the detainees underwent a level of interrogation overwhelmingly condemned by federal government agencies at the time, and criticized by all by the agencies involved in intelligence gathering. When the FBI expressed concern over the legality of some interrogation techniques, the agents were told by intelligence officials at GTMO to act like the “guests” that they were. Soon, all personnel not connected with intelligence gathering became guests at the base, unwelcome in many areas of the camp. BG Baccus was muscled out of the facility when his complaints regarding detainee treatment began to interfere with the intelligence mission. Soon after this, all operations were consolidated into a Joint Task
    Force under the direct supervision of intelligence commander, MG Miller.

    The criticized torture tactics, known as Enhanced Interrogation Techniques, were not utilized for the purpose of obtaining reliable information. Instead, the “results” the Executive Branch was searching for was something more sinister. The government sought information on the most effective ways to torture a human physically, information on the most damaging ways to break a man psychologically, and insight as to just how far the human body could be pushed in pain and terror before organ failure or death. Upon arrival, detainees were routinely given psychosis inducing drugs and were held in isolation for up to 30 days without access to human contact, including the International Committee of the Red Cross. Once in GTMO, non compliant
    detainees could also be subject to isolation techniques, which triggered denial of access to both doctors and Red Cross representatives…”

    https://law.shu.edu/policy-research/upload/guantanamo-americas-battle-lab-january-2015.pdf

    Our proud history in Gitmo!

  14. Squeaky Fromm Girl Reporter:

    In a previous comment, I gave some leeway to detaining some people near a battlefield. If the suspect is on a different continent and the IUD was planted the night before – that’s serious doubt of guilt.

    Also supposedly the U.S. has surveillance drones flying 24/7 all over those areas, so there should be some evidence to follow many of the bad guys back to their hiding places.

    I am talking about people not anywhere near a battlefield and no real evidence. Even if we didn’t give them a regular trial, a federal judge could review evidence used to detain someone without it becoming public.

    The other big difference is that most wars have ended within 4 years, so even mistakes get relief in 4 years. This war has no end date – so how long do we hold someone without sufficient evidence? It seems like 15 years is ample time to put a case together, what new evidence could emerge after 15 years?

  15. “So no matter which party wins the White House, controls Congress or appoints future Supreme Court justices, rest assured that the menace of the shadow government—the permanent, unelected bureaucracy that operates beyond the reach of the Constitution, the courts and the citizenry—will continue uninterrupted.”

    http://www.rutherford.org/publications_resources/john_whiteheads_commentary/the_greatest_threat_to_our_freedoms_a_government_of_scoundrels_spies_t

  16. I propose cutting out the tongue of anyone who uses “lesser of 2 evils” again, regarding this election.

  17. @Paul Schulte

    The petitioners in Ex Parte Quirin were all German citizens who had entered the US in foreign uniforms from a submarine for the purpose of committing sabotage. That is they were not United States citizens — a critical difference. Ex Parte Quirin, 317 U.S. 1 (1942).

  18. @RB

    It is NOT that I don’t think you may be right, and that some Gitmo detainees are innocent. It’s more of a practicality thing. As I said above, if there are small numbers of terrorists, a criminal court may be able to take the time and do the discovery work to weed out the innocent from the guilty. BUT, think how one would go about meeting that evidenciary burden.

    Some Muzzie in Pakistan crosses the border, and snipes at Americans. Or, plants an IUD. He goes back to Pakistan. How do we prove he is a terrorist or enemy combatant? There is no uniform. There are no enlistment papers. There are not secret video cameras to record him. There is nothing. By staying with the criminal court system, we are screwed.

    Sooo, we offer a bounty to people in Pakistan. They give us this guy, Abdul. His lawyer says, “Abdul, STFU and don’t say a word!” Sooo, in court, there is no evidence and Abdul prisses out scot free!

    At Gitmo, he don’t priss out free until we are more sure. He can be interrogated, and questioned. He may not talk, but he may. At least there is the chance of getting him to say something.

    Your nice and civilized way means we have massive trouble prosecuting terrorists, and as the FBI said above, they ain’t got enough people to follow the ones they know about, much less a bunch more. The result will probably be more dead Americans.

    I just think you are getting hung up in legal niceties and missing the reality. Which you can, until something big happens.

    Squeeky Fromm
    Girl Reporter

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