Sayfullo Saipov: Enemy Combatant, Terrorist of Just Plain Criminal?
Until Halloween 2017, Sayfullo Saipov was an indiscreet 29-year-old Uzbek immigrant and legal U.S. resident who drove for Uber. On that day, he became the prime suspect for a terrorist attack that killed eight people and injured a dozen others.
In their criminal complaint, federal authorities charged Saipov with providing support to a terrorist organization, ISIS, stating that the group inspired him to ram a truck into a group of bystanders. The complaint also alleges that Saipov told authorities he was particularly inspired by a video capturing Islamic State leader Abu Bakr al-Baghdadi asking Muslims in the United States to avenge the deaths of Muslims abroad.
Hours after the attack, President Donald Trump tweeted “Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system...” Senators John McCain and Lindsey Graham, two of President Trump’s most vocal critics, rallied around the president and immediately called for Saipov to be held as an enemy combatant to allow investigators to gather certain intelligence regarding his activities.
Saipov arrived in the United States seven years ago through the Diversity Visa Program, a State Department initiative that promoted immigrant populations that were underrepresented. Saipov is a lawful permanent resident, but he is not a US citizen. This fact, though, doesn’t impact his constitutional rights. In the 1886 United State Supreme Court case Yick Wo v. Hopkins, the Court established that “the guarantees of protection contained in the Fourteenth Amendment to the Constitution extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, of color, or of nationality.” So as a legal resident, Saipov is entitled to constitutional protections of due process, including the Fifth Amendment protection against self-incrimination and the right to counsel.
So, how, and why, would Saipov be labeled as an “enemy combatant” and would this designation impact his rights? After the September 11, 2001 terrorist attacks, Congress passed the Authorization for Use of Military Force, granting the President the power to use force against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” The Act also granted the president the power to label captured suspects as “enemy combatants.” Should Saipov be labeled as an enemy combatant, his rights may be suspended, and he would be treated the same way as someone captured as a prisoner of war. The Law of Armed Conflict, not the United States Constitution, would govern and proscribe Saipov’s rights. Then, for example, he could be interrogated without an attorney present and the government could hold him indefinitely without charging him with a crime.
The law is unsettled as to whether President Trump can label suspects affiliated with ISIS as “enemy combatants” under the Authorization for Use of Military Force. Should Saipov legally challenge his enemy combatant label, it would be the first time a court would review the question of whether the Authorization applies to US operations against ISIS. President Barack Obama’s administration maintained that the AUMF also justified capturing people affiliated with the Islamic State, but that determination has not been challenged legally. This is a thorny issue, as ISIS didn’t exist when the Authorization for Use of Military Force was passed in 2001 and there’s no clear legal precedent as to whether it applies to ISIS. In the last few years, the United States government has used the Act to justify air strikes in Syria, drone strikes in Yemen and other military actions all over the world against entities with connections to ISIS. Wells Dixon, an attorney from the Center for Constitutional Rights, has said that should a court rule that the Act doesn’t authorize the President to combat against ISIS because ISIS and its affiliates played no role in the 9/11 attacks, the United States’ efforts at combating the Islamic State across the world could be jeopardized.
In the days following the attack, federal prosecutors charged Saipov in federal court with several counts of criminal conduct. Though the case is now proceeding in a federal court, President Trump may not be prevented from sending Saipov to Guantanamo Bay, although no one arrested on American soil has ever been sent to Guantanamo and no one captured on foreign soil has been sent there since 2008. Still, Guantanamo is still a federal detention facility and can be used as such by the US government.
After the 9/11 attacks, the United States government repurposed the existing migrant detention facilities at the naval station at Guantanamo to hold detainees and suspected terrorists captured abroad in the “War on Terror.” Men from 49 different nationalities have been detained there since 2001. From 2002 to 2004, suspected terrorists captured abroad were held at Guantanamo because it was not considered the United States’ territory for jurisdictional purposes. Detainees were denied constitutional rights such as the ability to file a writ of habeas corpus to go before a court and contest imprisonment.
A series of four Supreme Court cases transformed Guantanamo’s legal status. Starting in 2004 with Rasul v. Bush, the legal isolation of detainees in Guantanamo gradually whittled away. In that case, the Court held that the United States’ jurisdiction extended to the detention facility at the naval base and that “aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority.” In the next case, Hamdi v. Rumsfeld, a U.S. citizen was captured in Afghanistan and held indefinitely at Guantanamo as an enemy combatant. The Court held that Hamdi was entitled to a formal determination of his status and an indefinite detention of an American citizen as an enemy combatant is “not authorized.” In Hamdan v. Rumsfeld, the detainee, Osama bin Laden’s personal driver and bodyguard, objected to being tried by a military commission at Guantanamo. The Court decided that the special military commissions that tried suspects in Guantanamo must cease because they violated the Geneva Conventions and the Uniform Code of Military Justice. Finally, in Boumediene v. Bush, the Court held that detainees were entitled to access to federal courts and that federal court jurisdiction extended to Guantanamo.
The closest the government ever came to sending enemy combatants captured in the United States to Guantanamo was during President George W. Bush’s administration, when on two occasions, he declared that people arrested on American soil, Jose Padilla and Ali Saleh Kahlal al-Marri, were “enemy combatants,” though they were placed in indefinite military detention at the Naval Consolidated Brig in South Carolina instead of Guantanamo. If the government sends Saipov to Guantanamo, he, like Padilla and al-Marri, can be held for prolonged interrogation without further charges and without access to a defense attorney.
The ACLU’s Executive Director, Anthony Romero, has said “Sending Saipov to Guantánamo or treating him as an ‘enemy combatant’ would violate due process and the rule of law. The FBI and our federal court system are more than capable of dealing with terrorism cases, and Guantanamo was shown long ago to be an epic failure.” Currently, the population at the Guantanamo Bay detention facility stands at 41 individuals. As the legal challenge brews, it’s unlikely that facility’s population will be increasing any time soon.
 Michael Strauss, “Guantanamo Bay: What Next? Cuba and State Responsibility for Human Rights at Guantanamo Bay,” 37 S. Ill. U. L. J. 533, (2013).
 Jerica Morris-Frazier, “Missing in Action: Prisoners of War at Guantanamo Bay,” 13 D.C. L. Rev. 155, (2010).
 Hamdi v. Rumsfeld, 542 U.S. 507, (2004).
 Hamdan v. Rumsfeld, 548 U.S. 557, (2006).
 Boumediene v. Bush, 553 U.S. 723, (2008).