Needless to say, John McCain and Lindsey Graham were in total support of the President's position on this front. Said McCain, "Take him to Guantanamo. He’s a terrorist, he should be kept there. There’s no Miranda rights for somebody who kills Americans." And Sarah Huckabee Sanders described the accused terrorist as an "enemy combatant".
Of course, the statements from both Trump and especially McCain once again reflect the continued erosion in the belief of the rule of law that is enshrined in the Constitution and the underpinning of our democracy. The fact of the matter is that there is no apparent lawful way to send this suspect to Gitmo. Internment at Guantanamo Bay is by law reserved for those who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." It is already a considerable legal stretch to include ISIS fighters overseas under the umbrella of this law. It will be nearly impossible to detain someone living in the US and inspired by ISIS under this law and send them to Gitmo. Federal prosecutors have charged the suspect with terrorism and seem inclined to prosecute the case in New York.
But even beyond the awful reflex to unlawfully send the terrorist to Gitmo is the fact that sending him there will assuredly not provide the quick and strong justice Trump wants to see. As the Center for Constitutional Rights notes, "Fifteen years has proven no one will ever be successfully tried or ‘brought to justice’ at Guantanamo, and the President and his supporters within his own party are deluded if they believe otherwise."
The judicial process at Guantanamo is a shambles. The Miami Herald reports, "In rapid succession Tuesday, a Marine general refused to testify and refused to rescind an order releasing three civilian defense lawyers, a Navy defense attorney refused to file pleadings and a military judge scheduled a contempt hearing in the USS Cole death-penalty case. All were firsts at the war court created after the Sept. 11 attacks to handle national security cases, as judge Air Force Col. Vance Spath sought to stabilize a collapsed defense team in the case against Abd al Rahim al Nashiri. The 52-year-old Saudi is accused of orchestrating al-Qaida’s Oct. 12, 2000 warship bombing that killed 17 U.S. sailors, and could be executed if convicted...But the larger drama was driven by a decision by three civilian attorneys to quit the case over a secret ethical issue involving, they say, compromised attorney-client privacy at the war-on-terror prison where the alleged terrorists are held. The chief defense counsel, Marine Brig. Gen. John Baker, released attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case in mid-October based on secret information the public cannot know. Spath ruled that only a judge, not Baker, had the authority to excuse lawyers of record — and ordered the general to swear an oath and answer questions about the episode."
Much of this chaos is driven by the refusal of the prosecution to allow the defendant, who is facing the death penalty, to actually get a lawyers who specializes in death penalty cases. The Brigadier General accused of contempt is the lead defense lawyer who last year said, "Put simply, the military commissions in their current state are a farce. Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay."
It should be noted that the defendant in question, al Nashiri, was actually captured in 2002. He was held in the CIA's black prisons until 2006 when he was transferred to Gitmo. His trial continues. As Charles Pierce notes, the surviving Boston Marathon bomber was arrested in 2013 and has already been tried, convicted, and sentenced to death in US civilian court.
Of course, this is not about justice, either swift or strong. "Send them to Gitmo" is just a nice catch phrase that sounds good to the base. In fact, it appears that Guantanamo Bay is the equivalent of the Black Hole of Calcutta, where prisoners are simply sent to die without any judicial recourse.
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