I came across this piece by Sean Colarossi, of PoliticsUSA.com, whining about how Donald Trump may want to try American citizens in Guantanamo.
What Trump is saying, Colarossi reminds us, isn’t legal. That’s technically true. The military commissions (trials for terrorists) are not for U.S. citizens — even if they’re jihadis caught fighting overseas.
The writer seems to be thinking that this is a violation of some ancient principle. It’s not. He may have forgotten that these military commissions were set up by Congress only ten years ago. They’re not for American citizens because they designed it that way at the time.
It’s as though Trump’s critics keep looking for things they can point to as stupid, ignorant and unconstitutional. This is none of those things.
The military commissions were originally set up by the Bush administration. They used the post-WWII Nuremberg trials as a model. What could be wrong with that? Most people would think that’s fine. Even lefties like to say they’d have been tough on Nazis. (I could argue that depends, but that’s an argument for another time.)
The Supreme Court decided (Hamdan v Rumsfeld, 2006) that Common Article 3 of the Geneva Conventions applies, and that meant they could only be tried in “a regularly constituted court.” The Court further decided that meant it needed to be set up by Congress. Note that this was the Geneva Conventions of 1949, which came after the Nuremberg trials.
But most of that was just details to the left. Of what I’d just written in that last paragraph, the lefties mostly just heard that the military commissions were illegal, and had violated the Geneva Conventions. The lefties didn’t seem to understand that all the Bush administration needed to do was ask Congress to pass a law authorizing the trials, which is what happened.
And that’s basically where Trump would be if he decided it was important to try jihadis who were U.S. citizens in Guantanamo military commissions. He would have to ask Congress to pass a law similar to the one they passed before, with one minor change. Would Congress do it? They will if it becomes important.
August 15, 2016
A number of critics point out that it would violate the Bill of Rights to try U.S. citizens in a military commission. The Sixth Amendment says:
“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.”
Elura Nanos at LawNewz.com writes: “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.”
Nanos raises some good points, but neglects to mention Ex Parte Quirin (1942), where eight German saboteurs were convicted in a military commission. Two of those Germans were legally U.S. citizens, and yet the Supreme Court ruled that the military commission was legal under the Constitution, despite their citizenship.
While people can argue with the differences between WWII’s Quirin and the Civil War’s Milligan cases, I’m just going to leave it at this. Trump isn’t really likely to want to do this anyway unless the war takes a hard turn for the worse.