The Constitution is not optional

In the wake of yesterday’s deadly vehicular attack in Manhattan, President Trump, Senators John McCain and Lindsey Graham and others have called for the accused attacker to be handed over to the military, for him to be sent to Guantanamo Bay and for his Miranda rights and other due process protections afforded to him under the Constitution to be disposed of.
This is not new, of course. Men in Trump’s McCain’s and Graham’s position have long sought such Constitutional rollbacks for terrorist suspects of a certain kind (though, curiously, not for terrorist suspects of a different kind). They most famously obtained such things after 9/11, with the passage Patriot Act, the advent of black site torture and interrogation centers and the imprisonment of terrorist suspects and men designated “enemy combatants” at Guantanamo Bay, with its attendant permanent, trial-free detentions.

Not that those were their only efforts in this regard. In 2010 Senator McCain sponsored the “Enemy Belligerent Interrogation, Detention, and Prosecution Act,” which called for placing terrorist suspects — including those whose alleged criminal acts occurred on American soil — in indefinite military custody for purposes of interrogation, during which time their Constitutional rights would be suspended. Calls for similar measures are often renewed following acts of terrorism.

The common thread: fear and distrust of the American criminal justice system. A belief that, somehow, our centuries-old institutions are unable to handle such cases. This is a baseless and pathetic claim. Our criminal justice system has repeatedly shown that it is capable of dealing with terrorism suspects. In contrast, our habit of throwing detainees into secret detention sites and dispensing with due process and the rule of law has been a miserable failure.

Federal civilian criminal courts have convicted hundreds of individuals on terrorism-related charges since 9/11. These convictions include those resulting from investigations of terrorist and criminal acts by those with identified links to international terrorism and include several high-profile terrorists such as the “Shoe Bomber” Richard Reid, the 1993 World Trade Center bomber Ramzi Yousef, the “Times Square Bomber” Faisal Shahzad and Osama bin Laden’s son-in-law, Sulaiman Abu Ghaith. In contrast, military commissions have convicted only eight. All of those prosecutions took years and cost millions. In the end, three of those convictions were overturned completely and one overturned partially.

Some who advocate for military tribunals doubt the security of a U.S. courtroom and stoke fears about the safety of the populace near where suspects are held, but such claims are baseless. Federal prisons hold hundreds of individuals convicted of terrorism-related offenses and none have ever escaped. None of the federal districts which have held or tried terrorism suspects have been attacked in retaliation.

​Others say that the seriousness and high-profile nature of the crimes demand a different sort of justice system. This, however, is exactly what terror suspects want. They want to be martyrs, figuratively if not literally, and want to appear as though they have gained the special attention of our highest elected officials. When they get it — when we publicly freak out like Trump, McCain and Graham are and put them before army officers in a special proceeding — their supporters can cast them as warriors, taking on the United States government and the United States Army. When you put them in a courtroom in a federal courthouse, they’re just criminals. Their crimes cast as simple murder, not an act of war.

There is a greater flaw with the calls for military tribunals and the denial of suspects’ rights than their lack of efficacy, however: denying due process rights to our enemies defies the very values we are fighting to protect.

The Constitution is not optional. Indefinite detention, suspension of basic rights and the deprivation of Due Process flies in the face of American values and violates this country’s commitment to the rule of law. Sacrificing our principles in the vain hope that doing so will make us safe has only made us weak. Weak because it sends the message to our enemies that our most sacred ideals are not strong enough to withstand external threats. Weak because it sends the message to our would-be allies that we do not stand for that which we claim to stand and that our words and promises carry no weight.

​A man attacked innocent people in New York yesterday, and he should be held responsible for his crimes. Attacking our Constitution, our federal courts, the rule of law and the bedrock values upon which our country was built is no way to do that. Indeed, doing so more effectively wages war on America and its institutions than anything a criminal terrorist suspect can ever hope to accomplish.

Craig Calcaterra

Craig is the author of the daily baseball (and other things) newsletter, Cup of Coffee. He writes about other things at He lives in New Albany, Ohio with his wife, two kids, and many cats.