Trump Would Send U.S. Citizens Accused Of Terrorism To Guantanamo Bay For Trial

Republican nominee embraces military tribunals for U.S. citizens.

Donald Trump does not believe U.S. citizens accused of terrorism should be tried in the regular judicial system and would prefer to see them adjudicated by military tribunals.

He told the Miami Herald on Thursday that he would like to send more terrorists to a “very safe place” like Naval Station Guantanamo Bay, Cuba, and would stop releasing “bad ones” who are being held in that facility.

Asked by reporter Patricia Mazzei whether he would “try to get the military commissions — the trial court there — to try U.S. citizens,” Trump indicated that he would.

“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,” he explained. “I would say they could be tried there, that would be fine.”

The Sixth Amendment to the United States Constitution guarantees all accused U.S. citizens the right to a “speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

In 1866, the U.S. Supreme Court held in Ex parte Milligan that that means a U.S. citizen “not connected with the military service and a resident in a State where the courts are open and in the proper exercise or their jurisdiction cannot, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law.”

But when a U.S. citizen becomes an enemy combatant, the question becomes more complicated as to whether to treat their actions as criminal or war. In the George W. Bush administration, a plurality of Supreme Court justices muddied these waters, holding in Hamdi v. Rumsfeld that “ a citizen held in the United States as an enemy combatant” merely has “the right to contest that detention before a neutral decisionmaker.”

Georgia State University Professor of Law Neil J. Kinkopf told ThinkProgress that, like many Trump comments, his meaning is inscrutable. “One problem that is recurring with what Donald Trump says is — what does he mean? What counts as a terrorism charge? If the charge relates to someone being involved with, say, Al Qaeda, then that might bring you within the Court’s opinion in Hamdi. But in Hamdi, what the court upheld was not trying someone in a military commission, but determining their status as an enemy combatant, which itself is not a crime.”

Kinkopf added that, contrary to Trump’s assertion, the Obama administration is not proposing to move status determination to the regular court systems. “I’m not aware of any proposal to do the war crimes trials in Article III courts. He may just be saying we should keep the status quo —[but it would be clearly unconstitutional] if he’s saying U.S. citizens charged with terrorism should be tried, say the Orlando nightclub shooters, that that person should be sent to Guantanamo and tried before a military commission.”

“Does he not understand or is he being crazy like a fox? Is he signaling stuff? There’s no way to know,” Kinkopf concluded.

Two weeks ago, Trump angrily responded to Khizr Kahn’s Democratic National Convention speech, in which the Gold Star father had questioned whether the Republican presidential nominee had actually read the constitution. “ Mr. Khan who has never met me, has no right to stand in front of millions of people and claim I have never read the Constitution, (which is false).”

Last month, Trump vowed to “stand up” not only for Articles I and II of the U.S. Constitution but also for Article 12. The constitution has only seven articles.