Trump wants to send the NYC attacker to Guantanamo Bay. That will not work.

There's this little thing called the rule of law.

CREDIT: AP Photo/Evan Vucci
CREDIT: AP Photo/Evan Vucci

Sayfullo Saipov, the man accused of driving a truck along a New York City bike path and killing eight people on Tuesday afternoon, should be held as an “enemy combatant” and sent to Guantanamo Bay prison, according to Sens. John McCain (R-AZ) and Lindsey Graham (R-SC). “Take him to Guantanamo. He’s a terrorist and he should be kept there. And there’s no Miranda rights for somebody who kills Americans,” McCain told reporters, falsely claiming that the Supreme Court’s decision in Miranda v. Arizona contains an exception for people accused of homicide.

Not long thereafter, President Donald Trump said he was open to this idea, telling reporters that he would “certainly consider” sending Saipov to Gitmo. At one point in his statement, Trump even yelled the phrase “send him to Gitmo!

There is no evidence that civilian courts are unable to effectively try or dole out harsh punishment to people who commit what’s often labeled as terroristic violence. Dylann Roof, the white supremacist who killed nine people in Charleston, South Carolina, received a death sentence. Dzhokhar Tsarnaev, the Boston Marathon bomber, also received a death sentence.

If there’s one thing the United States is good at, it’s doling out harsh punishments to people we determine to be criminals. The United States locks people up at a higher rate than any other nation. We carry out more executions than all but four other nations.

Nevertheless, Trump seems to believe that the constitutionally mandated process that led to death sentences for Roof and Tsarnaev operates too slowly. “We have to come up with punishment that’s far quicker and far greater than the punishment these animals are getting right now,” Trump told reporters. He added that “what we have right now is a joke, and a laughingstock.”

Trump does not cite any legal authority permitting him to detain and punish Saipov outside of the criminal justice system, and it is doubtful that he has any such authority. Though the Supreme Court’s decisions do permit bona fide “enemy combatants” to be detained outside of the criminal process, it is unlikely that Saipov qualifies as one.

Saipov has expressed solidarity with the militant group ISIS. But there is not yet any evidence that he had a formal affiliation with this group, and authorities say he was a “lone actor.” Moreover, as law professor Steve Vladeck notes on Twitter, even if it does turn out that Saipov was acting at ISIS’ direction, it is far from clear that the Authorization of Military Force that permitted Guantanamo Bay detainees to be held as enemy combatants applies to ISIS.

As a legal matter, moreover, moving Saipov to Guantanamo Bay is likely to be pointless. The Bush administration chose to house certain detainees at Gitmo because they thought the base would be beyond the reach of federal courts, but this belief proved to be erroneous.

In a 1950 case called Johnson v. Eisentrager, the Supreme Court held that “21 German citizens who had been captured by U. S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in the Landsberg Prison in occupied Germany” could not challenge that detention in federal court. In reaching this decision, however, Eisentrager placed a great deal of weight on the fact that these German nationals had very little connection to the United States.

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

Thus, by housing enemy combatants somewhere other than the United States, the Bush administration hoped to take advantage of Eisentrager.

Even if we assume that Saipov qualifies as an “enemy alien,” however, none of the other factors mentioned by the Court in Eisentrager apply to him. Saipov doesn’t just reside in the United States, he is a lawful permanent resident. He committed his offenses within the United States, was arrested in the United States, and is currently being held within the United States. In Rasul v. Bush, moreover, the Supreme Court held that 14 Gitmo detainees with far fewer ties to the United States than Saipov could challenge their detentions in federal court.

If Saipov were moved to Guantanamo, he would still be able to seek a court order challenging his detention — this would be true no matter where he is detained. Moreover, because it is unlikely that he qualifies as an enemy combatant, the government’s best lawful grounds to detain him would be because he is an accused criminal awaiting trial and entitled to the same constitutional rights afforded to criminal defendants (the government may be able to hold him for an immigration violation as well, but Saipov deserves a much greater punishment than deportation if he is found guilty).

There are two caveats here to keep in mind.

One is that Hamdi v. Rumsfeld, which established that the government has the power to detain bona fide enemy combatants pursuant to an act of Congress, involved a United States citizen and not a foreign national. The detainee in Hamdi relied on a federal law providing that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” It’s possible that a federal court could hold that lawful permanent residents who the government suspects of terrorism have fewer rights than citizens — though Saipov would still be protected by the Fifth Amendment, which provides that “no person shall…be deprived of life, liberty, or property, without due process of law.”

The other is that, while existing Supreme Court precedents call for Saipov to be afforded due process, the Court’s membership could change. Last June, Justice Clarence Thomas indicated that he believes Trump’s Muslim Ban should be upheld. He was joined in this opinion by Justice Samuel Alito, and by Neil Gorsuch, who occupies the seat Senate Republicans held open for a year until Trump could fill it. The Muslim Ban cases present distinct legal questions from Saipov’s case, but Thomas’ opinion certainly shows a willingness to defer when Trump claims a national security justification for his actions.

If Trump gets to add two other Gorsuches to the Supreme Court, the constitutional landscape facing someone Trump wishes to detain under dubious legal circumstances could change rapidly.

Assuming that the rule of law still applies in the United States, however, Trump’s suggestion that Saipov may be held outside the ordinary criminal process is unlikely to be sustained by federal courts. And the question of whether Saipov is held at Gitmo or in a jail on American soil should have little to do with the scope of his legal rights.