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Why We Shouldn’t Be ‘Fine With’ Trump’s Unconstitutional Plan for Terrorists


shutterstock_460918750Exhausting as it is to keep up with Donald Trump’s inane campaign rhetoric, we’re still obligated to pay some attention to the talking points he’s relying upon to propel him into the Oval Office. In his characteristic mélange of illegality, willful blindness and bravado, Trump recently told a Miami Herald reporter that he would be “fine with” holding over suspected terrorists (including U.S. citizens) for military trials in the Guantanamo Bay Navy Base in Cuba. At least until Trump tries to pass off the statement as a “joke” or as “sarcasm,” we’ll need to analyze the plain meaning of his statements: when terrorism is alleged, a President Trump would wield any power he could find – regardless of legality or appropriateness – against the suspect. Laws would be ignored, proceedings would be secret, and his government would create a parallel system of law enforcement that is bound neither by statute nor by precedent.

When Trump was asked about whether he thinks American citizens should be tried in military tribunals instead of in civilian courts, he responded, “well, I know that they want to try them in our regular court systems, and I don’t like that at all. I don’t like that at all.” The statement, conspicuously lacking identification for who “they” are, and without any reference to legislation that would be necessary to effect such a change, underscores the isolated narcissism that defines Trump’s political brand. He will say what he wants. He will do what he wants. He seems utterly unconcerned with the content of American laws, most likely because has no intention of following them.
In the non-Trump plane of reality, the U.S. law that applies to the prosecution of persons accused of terrorism is located in the 6th Amendment:

Amendment VI

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

Under the 6th Amendment’s clear language, crimes –even very serious crimes — are to be adjudicated in speedy, public, and local trials within the United States. The framework of the American criminal justice system would permit the prosecutions to be handled by either state or federal authorities – but as a practical matter, most prosecutions for “terrorist” activities occur at the federal level.

Courts martial, or military tribunals, on the other hand, are reserved for the prosecution of members of the armed forces for violations of military law. The jurisdiction of military tribunals isn’t a de novo legal issue; the Supreme Court grappled with the question of the appropriate use of military tribunals as far back as the Civil War. In Ex Parte Milligan, an 1866 case that is still good law today, the Supreme Court specifically held that trying civilian citizens in military courts is unconstitutional when civilian courts are still operating. And the Milligan Court didn’t set out a rule that only applied sometimes; it held that a civilian citizen cannot be tried in a military tribunal ever, even when habeas corpus is suspended, as President Lincoln did during the Civil War. Therefore, trying accused terrorists in a military tribunal in Guantanamo Bay (or anywhere else, for that matter) would require a Constitutional amendment. And no, a SCOTUS decision cannot be overturned by executive order, even if that decision is from 200 years ago. It’s Constitutional Amendment or bust.

Until the attacks of September 11, 2001, there had been little question about where accused terrorists would stand trial; “terrorism” was simply the conversational name of a group of crimes; persons who were prosecuted for having committed those crimes would be tried in federal district court, just like any other criminals. Prior to 9/11, a public declaration that a criminal was a “terrorist” may have described the kind of crime for which person was prosecuted, but did nothing to change the procedure or forum by which such defendants would stand trial. Accordingly, federal district courts tried, convicted, and sentenced “terrorists” with the same capability they’ve exercised for other a panoply of crimes. Timothy McVeigh, Ted Kaczynski, and many lesser-known “domestic terrorists” all received their justice at the hands of civilian criminal courts; it was a system that wasn’t broken and didn’t need fixing.

After 9/11, however, America wrestled with mustering an appropriate response to unprecedented threats of international terrorism. During the early 2000s, rules about the detention, interrogation, and prosecution of non-citizen “enemy combatants” began to take center stage. As war against sovereign nations countries evolved into the “War on Terror,” the distinction between “enemy combatants” (those fighting on behalf of an enemy state) and “terrorists” (those who commit crimes without state backing) became obscured. The 2004 SCOTUS decision in Hamdi v. Rumsfeld further muddied the waters with a confusing plurality decision allowing enemy combatants the right to challenge their status before an impartial judiciary. Cases that followed Hamdi continued to refine the rules that applied to enemy combatants with regard to their detention and due process rights. Never, though, did makers, interpreters, or enforcers of law even suggest that American citizens accused of criminal activity be afforded lesser due process rights based on which crimes they had committed.

President George W. Bush did issue an Executive Order on November 13, 2001 that authorized the detention and military trial of certain criminals – but only those who were not American citizens. President Bush’s Executive Order created a framework whereby those some of those accused of terrorism could be tried outside the civilian court system:

“(e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.”

George W. Bush may have made some mistakes during his presidency, but in this case, misreading the 6th Amendment doesn’t appear to be one of them. The Executive Order continued on to clarify who that executive it actually affected:

“Sec. 2. Definition and Policy.

(a) The term “individual subject to this order” shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this order.

(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.

(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense.”

Why did President Bush make this Executive Order?

That’s unclear. There’s a good chance that the order was given based in large part on a widescale misunderstanding about the military justice system. Many, including those at the highest level of government, believed that those tried before military tribunals would be subject to harsher and swifter justice than they might have received at the hands of a civilian court.

This week, I had the opportunity to speak with Margeret Stock, an Independent running for U.S. Senate in Alaska, and a renowned expert in the field of national security law. Retired Lieutenant Colonel Stock is an Army reservist and former military police officer, a graduate of Harvard Law School, the Harvard Kennedy School of Government, and the Army War College, a Constitutional law professor, and the former Director of National Security Law at West Point. She is also the 2013 recipient of the MacArthur “Genius” Award. To put it mildly, she knows about this stuff.

According to Ms. Stock, “there was a misunderstanding that military justice was somehow ‘quick and dirty.’   Some of the civilian leaders had read books or seen movies that talked about military justice during WWII, and they thought that old system was the current military justice system. They hadn’t realized that Congress reformed the military justice system after World War II and provided a lot more protection for defendants.”

The November 13, 2001 Executive Order was a brick in the wall of American determination to handle post-9/11 terrorism with unprecedented vigor. Plus, there was also the matter of reminding the world at large that those detained at Guantanamo wouldn’t be protected by the rules of the Geneva Convention. The logic of the Bush Administration, however, was shaky at best; the military justice system proved to be neither faster nor harsher than the civilian one.

Lt. Col. Stock continued:

“There was a misperception ‪after 9/11 that military justice would be quicker than civilian justice.  That proved not to be true. What we got with the military tribunal system was more expensive, more drawn-out, and in most cases, a system that resulted in no decisions. We didn’t get a fast process at all.”

Putting aside the matter of the wisdom of the President Bush’s Executive Order, it’s time to turn back to the issue raised by Donald Trump’s statements: whether American citizens accused of terrorism should be tried in civilian courts (as they always have been and continue to be tried today) or whether they should be shipped over to Cuba and tried before a court martial.

Trump’s complaint that “they want to try them in our regular court systems, and I don’t like that at all,” and his declaration that he’d be “fine with” American citizens being tried before military tribunals in GTMO indicates a major departure from not only from basic Constitutional rights, but from over 200 years of American government procedure. At a minimum, such a divergent plan warrants more than offhand comments or extemporaneous posturing. But more alarmingly, it indicates a truly pervasive ignorance regarding everything from Constitutional law to criminal justice to military procedure.

Even if it somehow became possible to try U.S. citizens before military tribunals, would it be a good idea?

No. Not even a little bit. Any suggestion that justice would be better served by sending accused terrorist to military courts is both absurdly dismissive of American criminal courts and seriously misinformed about the specifics of military justice.

Generally, under the Uniform Code of Military Justice (“UCMJ”), military defendants are entitled to more procedural protections than are defendants in federal criminal court.

Here’s a quick primer on some important differences between American civilian criminal courts and courts martial:

  • The UCMJ requires a heightened standard for Miranda-type warnings, which results in more cases being thrown out for improper police procedure.
  • Military prosecutions begin with Article 32 hearings (which allow the defense to actively participate) instead of grand jury proceedings (in which the defense remains silent).
  • More resources are available for military defenses. There is no question that more money can mean a more successful defense.
  • A Military defendant is entitled to a post-verdict opportunity to make a plea bargain. In civilian criminal proceedings, a defendant who opts for trial is taking a risky gamble that the outcome at trial will be better than what may have been offered during plea negotiations. Under the UCMJ, however, the defendant may still opt to take the plea deal even after being convicted.
  • Military defendants often have better defense counsel.   I’m not knocking the many intelligent and capable members of the criminal bar when I say that the lawyers who represent accused terrorists before military tribunals are an elite bunch. JAG lawyers (assigned to military defendants at taxpayer expense) are extremely skilled, expertly-trained, and well-funded. By contrast, many Public Defenders are juggling enormous caseloads with limited resources. In addition to the exclusive JAG corps, military defendants also have their choice of top-tier private lawyers who welcome the chance to represent high-profile defendants in the highest of profile forums.

Trump may have hoped to garner support by presenting an idea that would treat suspected terrorists worse than ordinary criminals, but suggesting a Guantanamo tribunal doesn’t even approach that goal. If anything, Trump’s intention would create an expensive, lengthy, public proceeding in which accuseds have greater procedural rights, more experienced counsel, and increased resources – all at the great expense to American taxpayers.    We have a presidential nominee saying he’d be “fine with” treating American citizens in a way that is as illegal as it is imprudent.

And here’s one thing that Trump definitely hasn’t thought about.

If all terrorists stood trial before military tribunals, a President Trump would be forced to keep his mouth shut about those prosecutions. Under military law, there’s a concept called Unlawful Command Influence. Because of the significance of chain-of-command within the military, a commanding officers comments about a prosecution, creates reversible error in doing so.

Margaret Stock shared with me her take on the problem with Donald Trump’s remarks:

“I don’t think he understands this at all.  As president, he would be Commander-in-Chief, and he can’t make public comments about these cases.  As a candidate, he can say whatever he wants, but as president, his comments could derail the government’s ability to prosecute someone through the military.”

Like most of Trump’s public comments, the recent ones regarding citizens and Guantanamo tribunals were poorly-reasoned and are likely to evolve. The obligation that Trump continues to shirk is only partially grounded in his status as a presidential nominee; as anyone making public speeches before millions of Americans for any purpose, Trump has a duty to speak responsibly. Characterizing the prosecution of terrorism and the function of the military justice system as something that he, or any president, has the power to change on a whim is irresponsible.

The true danger of Trump’s candidacy lies not in his actions, but in the actions he inspires in others. So while the possibility of making the changes Trump favors is remote at best, many Americans will champion his ill-advised cause. The average citizen has limited knowledge about the law underlying the procedure and prosecution of crimes of terror; it’s hardly dinner-table conversation, even in the most informed households. We largely delegate such matters to our leaders, and we rely on them to present their positions on things in the proper context. When they misrepresent the American legal system, we deteriorate as a nation. When a presidential nominee bases his platform on unresearched, erroneous assumptions about the military justice system, he denigrates the U.S. military as a whole – an insult not only to our men and women in uniform, but also to the millions of patriots who deeply appreciate their sacrifices.


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

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos