Law

Here’s Why Sending the New York Attacker to Guantanamo Bay is a Bad Idea

After this week’s terrorist attack in New York City, President Trump floated and then quickly walked back the idea of sending the perpetrator to Guantanamo Bay.

He wasn’t the only one. Sen. Lindsay Graham, R-South Carolina, has been making the rounds on TV to push the idea of declaring Sayfullo Saipov an enemy combatant.

While politicians grandstand on the mainland, America’s military prison in Guantanamo finally handed down its first conviction. Not for a member of al-Qaeda or ISIS, but for a one-star Marine general.

He was the head of the defense lawyers participating in the Gitmo’s “military commissions.” Brig. Gen. John Baker was sentenced to 21 days confinement for contempt of court, for refusing to comply with orders he saw as illegal and unethical.

Guantanamo Bay’s military commissions have always been constitutionally dubious

Trying terrorism suspects by military commissions in Guantanamo was always constitutionally dubious, but in practice it’s turned out to be even more dysfunctional and ineffective. The dispute in Baker’s case arose in the trial of Abd al-Rahim al-Nashiri, the accused mastermind of the USS Cole bombing in Yemen in 2000.

Al-Nashiri was captured in 2002, a full 15 years ago. Under the hybrid military-federal system of tribunals, he was first arraigned in 2008. Nearly a decade later, his trial has still year to begin, and is currently in its seventh year of pre-trial hearings.

Since al-Nashiri is facing possible execution, the law requires that he have the assistance of “learned counsel,” or lawyers experienced in handling death-penalty cases.

Lacking such lawyers in the military, the government hired two civilians. Both resigned when their lawyer-client confidentiality was breached, and they were forbidden from freely communicating that fact to their client.

In line with the ethical strictures which govern their profession, they refused to proceed.

No convictions from Gitmo’s commissions, except against an American general standing for principle

Gen. Baker backed them up on this, refusing to order them to continue in such circumstances. That was enough for the judge in the case to convict him of contempt, despite Baker’s objection that the court had no such jurisdiction over him.

He has currently filed for a writ of habeas corpus with the U.S. District Court in Washington.

Aside from Gen. Baker’s contempt charge, the military tribunals in Guantanamo have produced zero convictions.

By contrast, the regular federal courts managed to convict and execute Timothy McVeigh, the Oklahoma City bomber, in just over six years. No federal criminal prosecution has ever dragged on for as long as the military tribunals in Cuba.

Gitmo isn’t a way to “get tough” on terrorism, despite the posturing from the likes of Sen. Graham and President Trump. Instead, it’s a bureaucratic farce, trampling on basic legal principles while simultaneously failing to even deliver any kind of timely, if only “rough justice.”

There’s no reason why charges against any remaining detainees not be brought in the same federal courts that routinely handle deadly-serious cases of terrorism and mass murder.

(A picture of suspect Sayfullo Saipov is displayed during a news conference about yesterday’s attack along a bike path in lower Manhattan that is being called a terrorist incident on November 1, 2017, in New York City. Eight people were killed and 12 were injured on the afternoon of October 31, when suspect 29-year-old Saipov intentionally drove a truck onto a bike path in lower Manhattan. Photo by Spencer Platt/Getty Images.)

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