'Are you kidding me?': Terror expert reacts to president's Gitmo idea

Liz Goodwin
Senior National Affairs Reporter
A guard tower at the entrance of the U.S. prison at Guantánamo Bay, Cuba. (Photo: John Moore/Getty Images)

WASHINGTON — President Trump and his occasional congressional critic Sen. John McCain, R-Ariz., were in agreement Wednesday on the U.S. federal court system’s shortcomings when it comes to prosecuting terrorists.

McCain, the chair of the Senate Armed Services Committee, told reporters that the man accused of running over cyclists and pedestrians in an ISIS-inspired terror attack in New York City Tuesday should be sent to the prison at Guantánamo Bay, Cuba, instead of facing trial in the United States.

“Take him to Guantánamo,” McCain said of Sayfullo Saipov. “He’s a terrorist and he should be kept there and there is [sic] no Miranda rights for somebody who killed Americans.”

Miranda rights refer to a required warning to criminal suspects that they have a right to remain silent and not incriminate themselves.

Trump told reporters Wednesday that he would “certainly consider” sending Saipov to Guantánamo and suggested U.S. federal courts are not capable of prosecuting terrorists.

“We need quick justice and we need strong justice — much quicker and much stronger than we have right now,” Trump told reporters Wednesday. “Because what we have right now is a joke and it’s a laughingstock. And no wonder so much of this stuff takes place.”

The federal court system, meanwhile, was proceeding on the case. The Southern District of New York’s acting U.S. attorney, Joon H. Kim, announced federal terrorism charges against Saipov Wednesday evening.

Federal courts have taken on the lion’s share of terrorism cases since 9/11, prosecuting hundreds of accused terrorists. Major terror trials have not even officially begun at the military commissions in Guantánamo. The five men accused of plotting the 9/11 terror attack that killed thousands of Americans still do not have a trial date, more than 15 years later, as lawyers and the military judge have gone back and forth for years on pre-trial motions. The trial for the accused plotter of the USS Cole bombing is also mired in delays, with the judge recently sentencing a military defense lawyer to 21 days’ confinement for contempt of court.

President Trump meets with Cabinet officials. (Photo: Evan Vucci/AP)

“Are you kidding me? Have we gone back in time? Did we not learn any lessons? Really?” Karen Greenberg, an expert on federal terror prosecutions at Fordham University School of Law in New York, said Wednesday of the president’s suggestion.

Greenberg called Guantánamo’s military commissions a “quagmire,” and said Americans will be explaining to their grandchildren why the 9/11 plotters were not tried and convicted.

Asked about the Guantánamo military commission’s poor track record thus far, McCain conceded the system is dysfunctional.

“It doesn’t work well, but it beats the hell out of Miranda rights,” the senator said.

But Miranda rights can be suspended under a “public safety exemption,” Greenberg said, if authorities make the case that the suspect needs to be questioned about other possible attacks before he or she is notified of the right to remain silent. That occurred in 2009 during the questioning of Umar Farouk Abdulmutallab, the failed “underwear bomber,” who tried unsuccessfully to detonate explosives on a flight to Detroit on Christmas Day.

“Miranda rights have not gotten in the way of these very high-profile, potentially dangerous cases in the past,” Greenberg said.

Trump campaigned on promises to fill Guantánamo with terror suspects and told his supporters at rallies that “torture works.” But so far, the president has not sent anyone to the military prison, and no new detainee has arrived there since 2008. No one has ever been transferred from U.S. soil to Guantánamo, and doing so would set off a constitutional legal battle that would likely need to be resolved by the Supreme Court.

Anthony Romero, executive director of the ACLU, released a statement Wednesday saying that sending the suspect to Guantánamo would be illegal.

“Sending Saipov to Guantánamo or treating him as an ‘enemy combatant’ would violate due process and the rule of law,” Romero said.

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