Faking Toughness on Terrorism

Calls to declare Sayfullo Saipov an enemy combatant and send him to Guantanamo threaten the Constitution while doing nothing to advance public safety.

Jane Rosenburg / Reuters

On Wednesday, prosecutors filed charges in civilian court against 29-year-old Sayfullo Saipov, the man accused of using a truck to kill eight in New York City. Critics like Senator Lindsey Graham, Senator John McCain, and President Donald Trump quickly suggested that America should get tough and declare him an enemy combatant instead.

The public should reject that view as ill-considered and idiotic.

In civilian court, Saipov will be eligible for the death penalty, like Timothy McVeigh, who was executed in June 2001 for murdering 168 people in Oklahoma City.

There is no harsher penalty available in America than killing someone for their crimes, unless you think that the worse fate is being imprisoned for decades until death. If the FBI is being truthful, it possesses enough evidence to ensure Saipov never leaves prison. Terry Nichols, a co-conspirator in the Oklahoma City bombing, has lived in a supermax prison since being given 161 life terms with no chance of parole.

The Oklahoma City cases should have reassured Americans that the civilian justice system was adequate to the task of handling terrorism cases after September 11, 2001. But the Bush administration felt military tribunals would be tougher. Among many in Red America, that remains the politically correct position. But folks who trust the facts in evidence more than their guts may find Charlie Savage is actually correct:

Since the Sept. 11, 2001, attacks, the Justice Department has successfully prosecuted hundreds of terrorism-related cases in civilian court. Last month, it convicted Ahmad Khan Rahami, who was arrested in September 2016 for setting off bombs in New York City and now faces a life sentence. By contrast, the military commissions system at Guantanamo has repeatedly plunged into chaos. It has struggled to bring contested cases to trial, and several of its few convictions were overturned.

Justice is most likely to come in civilian court, as politically incorrect as Trumpists find that truth.

Declaring Saipov an enemy combatant would be particularly ill-advised. Forget that he has already talked, that he is all but certain to be convicted, that he is eligible for the death penalty, and that civilian courts have a better track record. Even apart from all that, the costs of declaring him an enemy combatant would be considerable.

Doing so would set at least two alarming precedents: that the government can declare someone to be outside of civilian law when they are a legal resident arrested on U.S. soil; and that they can declare someone an enemy combatant even though there is no declaration of war or authorization to use military force against the group to which they expressed an affinity. Surely the attendant dangers are self evident. Both precedents could enable future tyrants. Both pose a greater threat to the liberty of Americans than the status quo. Bearing those costs without any benefit is idiocy.

It would delight some members of ISIS, who’d love nothing more than for their terrorist attacks to inspire the U.S. to give up on that which helps to preserve our successful system.

Some members of the public will inevitably be fooled by those who conflate getting tough on terrorism with declaring more people to be enemy combatants and spiriting them to Gitmo. But informed observers recognize that such rhetoric is the political demagogue’s analog of that beefy bro at your local gym who spends all his time on biceps, has a weak core, and cares more for the illusion of strength than the thing itself.

Trump can’t harken back to past military service to seem tough, or ride around on a horse with his shirt off, so he used harsh rhetoric about getting tough to fuel an illusion. To his credit, he reversed his initial position on Thursday morning, tweeting, “Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system.” The question then remains, if the federal system brings faster justice, why would he “love to send the NYC terrorist to Guantanamo”? Because it seems tougher to some Americans.

The remaining “send him to Gitmo” know-nothings are unwittingly jeopardizing both liberty and safety in support of what seems tougher to the uninformed. For sense to prevail, others must defend constitutionally and pragmatically superior methods. Don’t let the fake tough guys of counter-terrorism trick the masses with their bicep flexes.

Their position is very, very weak.