Detainees at Camp X-Ray at Naval Base Guantanamo Bay, Cuba, during in-processing to the temporary detention facility on Jan. 11, 2002. DoD photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy.
Last week, October 31, New York City experienced its deadliest terrorist attack since the September 11, 2001 assault on the World Trade Center. A 29-year old Uzbek man, whom U.S. law enforcement authorities have identified as Sayfullo Saipov, drove a Home Depot truck that he rented at approximately 2:06 pm that afternoon and drove it into a bike path along the West Side Highway. Saipov left a trail of destruction, from mangled bicycles and injured people lying on the sidewalk to the bodies of eight who would lose their lives. He only stopped when the truck crashed into a school bus (wounding two children inside) and was shot in the abdomen by a New York City police officer who rushed to the scene—an act that subdued the attacker and very likely prevented more casualties.
The next morning, President Donald Trump spoke briefly to reporters at the White House, and he was clearly angry at what happened in his hometown. He referred to Saipov as an “animal” who deserved quick and harsh justice (no New Yorker would disagree with that) and all but blamed Senate Minority Leader Chuck Schumer’s pro-immigration stances for the carnage on Twitter. All of this is par for the course from this president, a man who considers himself a great counterpuncher when he isn’t starting brawls.
What was far more noteworthy than Trump’s rhetoric toward a Democratic lawmaker was his openness to sending the New York terrorism suspect to the Guantanamo Bay detention facility. Asked whether that was an option for the administration, Trump replied that he would consider it. Sens. John McCain and Lindsey Graham, two of the upper chamber’s most hawkish lawmakers, backed up the president. “Take him to Guantanamo,” Sen. John McCain (R-Ariz.) said on Capitol Hill. “He’s a terrorist, he should be kept there.” Added Graham: “[He] should be held as [an] enemy combatant under the law of war.”
No one doubts Trump’s propensity to change his mind on short notice without his national security advisers present, so the comments that the president made the morning after the attack may just be about letting off steam. The next day, Trump jumped on Twitter again and clarified that while he would have liked to send Saipov to Gitmo, it would be more symbolically gratifying to prosecute him in New York.
He may very well change his mind for a second time if the legal process isn’t rapid enough to Trump’s liking. But barring the emotional aspect of slapping an orange uniform on a killer who ran over innocent people, facts indicate that shipping Saipov to Guantanamo and trying him there as an enemy combatant would be a tedious and unnecessary political decision based on nothing but politics.
For one, the military commission system set up at Gitmo has been notoriously expensive, time-consuming, and unproductive. Khalid Sheikh Mohammed and four co-conspirators, charged in 2012 for orchestrating and planning the 9/11 attacks and “attacking civilian objects…in violation of the law of war,” have still yet to be put to trial. The KSM case has been and remains the ultimate joke among the law community, not because the charges are baseless (they certainly aren’t) or due to the defendants’ legal representation (they have adequate counsel available) but rather because pre-trial motions have lasted for years. The amount of filings and motions that the prosecution and defense teams have presented to the judge has extended the start of the actual trial to an unforeseen date. Prosecutors are aiming for an accelerated schedule of court filings and for the jury selection to begin by January 7, 2019. The presiding judge declined the request two hours after it was publicly released. Not even the teams prosecuting or defending the 9/11 defendants can tell you when witnesses will be called or evidence will be presented in court.
Another case stuck in Guantanamo’s labyrinthine commissions system, that against U.S.S. Cole bomber Abd al-Rahim al-Nashiri, has devolved into an internal conflict within the courtroom itself. The judge and the chief defense counsel are too busy fighting over who has the power to fire members of the defense team to worry about the merits of Nashiri’s crime.
Meanwhile, the civilian U.S. court system (what constitutional experts and lawyers call Article III courts) have produced conviction after conviction of suspected terrorists who are brought to trial. The list of successful prosecutions and life sentences of high-profile terrorists are long and getting longer. Mary B. McCord, a former principal deputy assistant attorney general for national security at the Justice Department, described the U.S. government as having an “almost perfect record of convictions” on terrorism cases. “[P]rosecution in Article III federal courts,” McCord writes, “arguably has proved to be the most successful long-term disposition option for enemy combatants.” Just ask Zainab Ahmad the Assistant U.S. Attorney with the Eastern District of New York, who has prosecuted thirteen terrorism cases since 2009 and hasn’t lost a single one to date.
If you were reading or listening to former Bush administration officials like Vice President Dick Cheney and Attorney General Michael Mukasey, you would perhaps conclude that civilian terrorism trials are a disaster. What happens, for instance, if a jury acquits a dangerous individual that the U.S. government knows is a terrorist, either due to prosecutorial neglect, evidence of coerced confessions, or lack of evidence?
It’s a legitimate concern and indeed has happened in the past. In 2007, a jury acquitted one defendant and ruled a mistrial on six others on charges that they plotted to bomb Chicago’s Sears Tower (the seven were later re-tried, with that trial resulting in six guilty verdicts and one deportation). In one of the most renowned terrorism cases, Ahmed Khalfan Ghailani, accused by the Justice Department of being a key planner of the 1998 U.S. Embassy bombings in Africa, was cleared on 276 counts of murder and attempted murder. Conservatives in Washington were visibly distraught about the verdict, using it as an example of why a trial-by-jury could hypothetically put an individual back on the street who wants to slaughter Americans. But in even this specific case, Ghailani’s single count conviction of conspiring to destroy U.S. government property earned him a life sentence.
Other convictions of note: Suleiman Abu Ghaith, Osama bin Laden’s son-in-law, who was convicted and sentenced for conspiring to kill Americans; Ibrahim Suleiman Adnan Adam Harun, convicted last March for being a member of Al-Qaeda operative and participating in an ambush in Afghanistan that killed two U.S. troops; Ahmad Khan Rahimi, the New York City and New Jersey pipe bomber; and Dzhokhar Tsarnaev, the 2013 Boston Marathon bomber who used improvised explosive devices to kill kill and main runners sprinting towards the finish line. As this is being written, the Justice Department is currently trying Ahmed Abu Khatalla for the 2012 murder of four Americans in Benghazi, including U.S. Ambassador Chris Stevens, in a civilian court.
President Trump, therefore, may want to tame his emotions and impulses on the matter. Would sending this “animal” to Guantanamo fulfill his appetite for revenge? Probably.
But if he’s looking to throw Saipov in prison where he belongs for the rest of his life, then let the career prosecutors at the Justice Department take care of it.
Daniel R. DePetris is a fellow at Defense Priorities.