A key bit from this afternoon’s statement to the media on yesterday’s attack, during which he also said that he wants to end the Diversity Visa Lottery. (But we already knew that.) This puts POTUS right in line with one of his chief Republican antagonists, superhawk John McCain, who issued this statement earlier:
“The terrorist attack in New York is the latest brutal, horrific example of the war that radical Islamist extremists are waging against our nation and our way of life. From Orlando to San Bernardino and Boston to Manhattan, we must not consider these attacks on our homeland in isolation, but rather recognize them for what they are: acts of war. As such, the New York terror suspect should be held and interrogated—thoroughly, responsibly, and humanely—as an enemy combatant consistent with the Law of Armed Conflict. He should not be read Miranda Rights, as enemy combatants are not entitled to them. As soon as possible, the administration should notify Congress how it plans to proceed with the interrogation and trial of this suspect.
The counterpoint was delivered on, of all places, Fox News by the network’s resident libertarian, Andrew Napolitano:
“About Gitmo,” he continued, “this person, as horrific as he is, is a lawful American resident. He has the same rights, except for voting and running for office, as the rest of us. There is simply no provision for terminating his Constitutional rights by putting him in the hands of the military and taking him to Gitmo.”
Trump will only say for now that he’s “considering” sending Saipov to Gitmo but it’s impossible to believe he won’t try. Being seen as tough on terrorism is a pillar of his strongman image. In fact, pause here and watch the tirade he uncorked today about judicial processing of terror suspects as a “joke” and a “laughingstock.” We need “quick justice and we need strong justice, much quicker and much stronger than we have right now”:
Trump lashes out at US federal justice system as "joke" and "laughing stock." pic.twitter.com/Aa5vJumWvd
— Josh Marshall (@joshtpm) November 1, 2017
No wonder there’s so much terrorism when they’re treated so delicately, he muses. It’s of a piece with him wanting to waterboard terrorists as punishment purely because they deserve it, irrespective of whether it produces intelligence. But remember — Mattis talked him out of that. That’s the X factor here, whether Mattis and Kelly also support shipping jihadis off to Gitmo as enemy combatants and whether they’ll try to talk him out of this too.
The Napolitano side has an obvious slippery slope argument in support of their case. If you can send a permanent resident like Saipov off to Gitmo, can you also send an American citizen there? Given how far the 9/11 and Iraq AUMFs have been stretched to cover new conflicts, who else is eligible for Gitmo because they’re an enemy combatant in the “war on terror”? Are non-Islamic terrorists like Ted Kaczynski necessarily ineligible for Gitmo because they’re not covered by those AUMFs? A more essential question: What does sending Saipov to Gitmo accomplish, exactly? He was apprehended at the scene of the attack. There’s no chance realistically that he’ll walk if he’s charged in federal court. And with enhanced interrogation now shut down, sending him to Gitmo may not get us anything extra by way of intelligence. If Supermax is secure enough to hold Kaczysnki, why not Saipov?
Trump has an argument for his position too. If the touchstone for where to send Saipov is where he committed his act, namely, inside the United States instead of abroad, then by granting him greater legal protections than Gitmo detainees you’re actually incentivizing jihadis to try to kill Americans on U.S. soil instead of on the battlefield. Shoot a bunch of Marines in Afghanistan and get captured and it’s off to Cuba; kill a bunch of office workers on Wall Street and get captured and you’ll have a lawyer and hearings on the docket at the federal courthouse in Manhattan in no time. As a matter of pure populism, Trump’s obviously going to take the position that all jihadis need to end up in Gitmo, no matter where they strike. Whether the Supreme Court is likely to go along with this is a question I’ll leave for legal eagles to ruminate on.
Here he is today mulling Gitmo for Saipov and 18 months ago talking about sending a lot of bad dudes to Cuba once he’s president. Again, this is fundamental to his strongman bravado. And it’s a stark contrast with Obama, with whom Trump is always eager to draw a contrast.