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Trump’s Not Tough Enough To Gut The Constitution After All


Earlier this week, President Trump realized a Muslim had done something illegal and violent in New York City. He had to respond. And in typically fine form, the Twitterer-in-Chief put forth a display of strength and poise.

In response to a reporter’s question as to whether alleged Manhattan terrorist Sayfullo Saipov should be sent to the U.S. military prison at the U.S. Naval base on Guantánamo Bay in Cuba, Trump said:

I would certainly consider that, yes. I would certainly consider that. Send him to Gitmo. I would certainly consider that, yes.

Yes, certainly he would. And, by staking out such a position, Trump jumped head-first into the chorus of neoconservatives who have been itching to toss another Islamic male into the legal black hole at Guantánamo Bay for years.

That same day John McCain said the following to a group of reporters outside the U.S. Capitol, “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.”

Later, McCain issued a joint statement with Senator Lindsey Graham. Clarifying the earlier statement, it reads, in part:

[Saipov] 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.

So, that’s the legal debate club Trump was hoping to join. Graham proceeded to egg Trump on by saying that trying Saipov in an actual court room with the potential for actual justice would be Obamaesque. Trump seemed to really want to send the alleged terrorist to the place where no one is actually ever tried for terrorism. At least, until, some White House staffer got a piece of the president’s ear.

Early morning November 2, Trump tweeted, “Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system…There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!”

Aside from how embarrassing it must be for Trump to look like he was sucking up to the likes of John McCain and Lindsey Graham, sending Sapiov to Guantánamo Bay would also be illegal and unconstitutional.

Aside from John McCain’s contention about Miranda rights–they explicitly do apply to people who kill Americans as long as those people are in America when Americans are killed. Re-wind whatever tape exists in your mind and consider any murderer apprehended anywhere in these United States. Once the cops have their hands on them, they’re Mirandized.

It doesn’t matter who they killed or why–the only thing that matters is where the United States’ jurisdiction falls. And, unless you’re on United Nations’ property, as long as you’re in New York City, you’re still subject to the jurisdiction of the United States of America.

And if you’re subject to such jurisdiction while inside U.S. borders then you’re entitled to U.S. constitutional rights.

The source for this outrageous claim? The U.S. Constitution. The 14th Amendment reads:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These phrases have been litigated on repeat for decades. In 1973, the Supreme Court case Almeida-Sanchez v. United States found that all criminal law-related protections of the U.S. Bill of Rights apply to non-citizens–whether they are legally or illegally present.

Then, in 1982, the Supreme Court ruled in Plyler v. Doe that illegal immigrant children are protected by the 14th Amendment.

And once again, in 2001, the case Zadvydas v. Davis was decided and it was found that the 14th Amendment applies to any and all aliens in the United States, even those whose presence is “unlawful, involuntary or transitory.”

As far as McCain’s determination to label Saipov an “enemy combatant,” well, that’s also fine for his debate club with Graham and whatever gingham-wearing clique of D.C. lanyards feel like following the two around as they suss out the finer points and legal niceties of Campbell’s chicken soup cans. Otherwise, it has no meaning. The old men can slobber out whatever phrase they desire.

The administration can even get Sarah Huckabee Sanders to repeat phrases she doesn’t understand until everyone in the White House press room is thoroughly bored and moved. Still, labeling Saipv an “enemy combatant” is meaningless because the Law of Armed Conflict actually does not apply here–it only applies in instances where there’s an actual armed conflict–which is also known as a “war”–and that’s not what’s happening on the streets of Manhattan right now.

For those interested in the law and Constitution of the United States, Judge Andrew Napolitano demands at least a brief audience. In an appearance on Fox News‘ Outnumbered, he said:

There is simply no provision for terminating [Saipov’s] Constitutional rights by putting him in the hands of the military and taking him to Gitmo. If they send him to Cuba, it will be unfair, unlawful and unconstitutional.

[image via screengrab]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

This is an opinion piece. The views expressed in this article are those of just the author.

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