On Thursday Donald Trump told the Miami Herald that he thinks it'd be a good idea to try American citizens accused of terrorism in military tribunals at Guantanamo Bay.
“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. I would say they could be tried [at Guantanamo], that would be fine,” he said.
That that is a pretty frightening statement. The 2006 Military Commissions Act expressly forbids the trial of U.S. citizens in Guantanamo Bay military commissions, so the policy Trump is suggesting would be "fine" is, in a word, illegal.
The legal justifications for why non-citizens can be tried by military tribunals are already tenuous in the eyes of many legal advocates. Under the United States Constitution, all persons charged with crimes in the United States are entitled to due process and a jury trial regardless of their citizenship status. Proponents of GITMO have been able to use the laws of war, as well as GITMO's status as a Cuban territory under U.S. control, in order justify the tribunals.
In 2008, then-Senator Barack Obama was critical of GITMO's military tribunals and he vowed as a presidential candidate that he would close Guantanamo Bay. However, after congress blocked his efforts to have prisoners from Guantanamo tried in the United States, Obama kept the military tribunals in place.
If Donald Trump were to somehow expand the military tribunals to American citizens charged with terrorism, it would have considerable implications for the future of due process in the United States, and likely not just for terrorism cases.
Even though Trump should be barred by current law from trying Americans at GITMO, that doesn't mean a Trump administration couldn't somehow make it happen. The history of GITMO seems to suggest that when U.S. law gets in the way of the military's ambition, the military usually prevails. So it's not hard to imagine a world in which national security officials in a Trump White House could get U.S. citizens in terrorism cases tried in the military tribunals where a defendant's rights are limited.
Trump has previously told supporters that he hopes to "load" the prison at Guantanamo with "bad dudes." Trump's suggestion that he might also broaden the legal scope of GITMO's already questionable practices, should be an additional incentive for the Obama administration to do everything in its power to close the prison before the end of his term.
President Obama's latest plan for closing the prison left many anti-GITMO activists disappointed, as it basically redounded to an attempt to get a recalcitrant Congress to change the law and allow detainees to be moved to the U.S.
Activists say the administration has weapons in its legal arsenal that it can use to reduce the number of prisoners in GITMO, but that it is refusing to use them for political reasons. Maybe with the prospect of a Trump presidency on the horizon, they will reconsider.