Could Trump Really Send the Lower Manhattan Terror Suspect to Guantanamo?

Doing so would be unprecedented—and quite possibly illegal.
November 3, 2017
Mother Jones

Following Tuesday’s terror attack in Lower Manhattan, President Donald Trump suggested that he might send the suspect, Sayfullo Saipov, to the US naval base at Guantanamo Bay, where the US has been holding alleged terrorists indefinitely, often without charges, for the past 15 years. “We have to get much tougher,” Trump said. “We have to get much smarter. And we have to get much less politically correct. We’re so politically correct that we’re afraid to do anything.” Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.) piled on, suggesting that not only should Trump declare Saipov an enemy combatant and send him to Guantanamo, but Saipov should be interrogated there without a lawyer. “You could if you wanted to,” Graham said.

But could you? Such a move would be unprecedented. The US government has never sent someone arrested on US soil to Guantanamo. That may be one reason Trump has backpedaled on his initial comments, suggesting that Saipov could get the death penalty more quickly by going through federal court. Graham and McCain, though, are still pushing the administration to declare Saipov an enemy combatant, raising questions about whether Trump even has the authority to dispatch Saipov to the Cuban prison. Here’s why doing so would be constitutionally dubious.

First, Saipov, a citizen of Uzbekistan, was in the United States legally at the time of the attack. As a result, he’s entitled to all the constitutional protections of due process, the Fifth Amendment protection against self-incrimination, and the right to a lawyer. All of the men who have been sent to Guantanamo were captured on foreign soil and, as a result, don’t have these rights. That’s why many of them have languished there for so long without being charged with a crime. Because he was captured inside the United States, Saipov couldn’t be tried by a military tribunal, as other Guantanamo detainees have been, because the law authorizing those proceedings don’t apply to him. He would have to be tried in a federal civilian court.

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November 3, 2017