The Imperial Presidency: From Gitmo to Trump v. US and Back Again

On July 31, retired brigadier general Susan K. Escallier signed a pretrial agreement under which Walid Muhammad Salih Mubarak bin Attash, and Mustafa Ahmed Adam al-Hawsawi would have pleaded guilty to various roles in the terror attacks of 9/11 in return for sentences of life imprisonment rather than the death penalty. On August 1, bending to outrage (real and feigned) over the matter, US defense secretary Lloyd Austin revoked the deal.

The case may seem unrelated to last month’s US Supreme Court ruling in Trump v. United States, granting presidential immunity for “official acts” — an immunity manufactured from whole cloth in contradiction to both the plain text of  the US Constitution and the entire history of American jurisprudence.  The two stories however, are of a piece.

The three defendants have spent their last two decades in US custody at Guantanamo Bay, Cuba. If they’d been charged and tried as ordinary criminals in federal court, they’d have almost certainly found themselves quickly convicted, shortly thereafter sentenced to death, and long since dead, like Oklahoma City bomber Timothy McVeigh (about six years from crime to execution).

That’s not a comment on their guilt or innocence; it’s just recognition that finding a jury which WOULDN’T convict them and recommend a sentence of death would have been extraordinarily unlikely given the climate of the time.

But former president George W. Bush just wasn’t having any of this Constitution stuff. Whether or not he actually called the Supreme Law of the Land “just a goddamned piece of paper,” as a later retracted article claimed, he certainly treated it that way.

The US government, under Bush and with the cooperation of Congress and, in parts, the Supreme Court, simply seized power to declare people “unlawful enemy combatants,” try them via military tribunal instead of the constitutionally required court/jury system — if it tried them at all instead of just having them murdered, as Barack Obama and Donald Trump later did — all while holding them indefinitely in violation of the Constitution’s “speedy public trial” requirements and torturing them in violation of its “cruel and unusual punishment” prohibition (as well as international law).

Let me say this again by way of emphasis, because it’s important:

If the constitutional requirements had been followed, Walid Muhammad Salih Mubarak bin Attash, and Mustafa Ahmed Adam al-Hawsawi would almost certainly have been killed by lethal injection years ago.

The way these three alleged terrorist masterminds were treated wasn’t about achieving justice.

It wasn’t about “winning the war on terror.”

It wasn’t about preventing future attacks.

It was about implementing George W. Bush’s kingly view of presidential power: “I’m the decider, and I decide what’s best.”

The SCOTUS ruling on presidential immunity in Trump’s case affirmed that claim, ensuring that neither Bush nor his predecessors or successors need ever fear they’ll face justice — even the kind of justice denied Walid Muhammad Salih Mubarak bin Attash, and Mustafa Ahmed Adam al-Hawsawi — and that their victims will never RECEIVE justice for crimes committed against them by modern American monarchs.

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