Donald Trump just changed the way Presidents talk about terror attacks.
But while Trump’s venting may be emotionally satisfying for the President and delight his supporters, it’s not clear it represents a thought-through framework for changes in how the legal war on terrorism is fought. And it’s even possible his outburst will jeopardize the process of bringing terrorists to justice.
Instead of channeling grief and offering reassurance and resolve, as his predecessors might have done after the Halloween horror in New York where eight people died, Trump amplified the fury and desire for vengeance stirred by such carnage.
He lashed out at the “animal” behind the truck attack, threatened to throw him in Guantanamo Bay, vowed to terminate the visa lottery that help draw him to the US and branded the justice system a “laughingstock.”
He then called for the death penalty against the attacker, raising questions of whether his rhetoric could potentially jeopardize a legal case against the assailant by prejudicing jurors.
Trump, handling his first major attack on American soil as President, was true to his bruiser’s persona: He was tough, politically incorrect and trampled nuance.
He also politicized the attack, all but accusing his top Democratic foe, Sen. Chuck Schumer, of enabling it by nurturing the visa program which benefited the alleged attacker Uzbek immigrant Sayfullo Saipov.
“Diversity lottery. Sounds nice. It’s not nice. It’s not good,” Trump said at a Cabinet meeting on Wednesday.
“That was a horrible event, and we have to stop it, and we have to stop it cold,” said the President, who rarely misses a chance to incite the fight against Islamic radicalism.
His approach contrasted sharply with the measured response to terrorism adopted by his predecessor Barack Obama, who was often criticized for insufficiently appreciating public anxiety after attacks.
Obama reasoned that reacting viscerally to such horror helped terrorists who want to divide Americans and spread indiscriminate fear.
Trump also did not offer assurances that the alleged attacker, who yelled “God is Great” in Arabic during the assault, was not a representative of Islam itself, as a whole, as another President, George W. Bush, often did.
Guantanamo Bay?
But the practice of fighting terrorism is more complicated than talking about it as Trump quickly discovered on Wednesday.
The President argued that accused terrorists do not deserve legal protections granted to others — but there were signs the White House was acting off the cuff without deep forethought.
In a staggering moment, the President of the United States branded his own nation’s justice system as a “joke.”
“We need punishment that’s far quicker and far greater than the punishment these animals are getting right now,” he said, before saying he might send Saipov to Guantanamo Bay in Cuba, which holds suspects caught abroad.
Trump’s spokesman Sarah Sanders told reporters later that the White House considered Saipov an “enemy combatant” — a designation that would deprive him of legal representation and the right to remain silent and would not necessarily apply to his case from a legal perspective.
Despite the tough words, Trump soon came up against a familiar impediment: the legal and constitutional constraints that sometimes frustrate his desire for a strongman presidency.
“Our criminal justice system is based on the Constitution,” said Republican Rep. Mike McCaul on “The Situation Room” with Wolf Blitzer.
“Under due process, this individual, like it or not, came into the US legally, is a lawful permanent resident and has rights under the Constitution,” said McCaul, the chairman of the House Homeland Security committee.
Shortly after McCaul spoke, New York justice officials announced federal criminal charges against Saipov, including providing material support to ISIS.
Susan Hennessey, a former National Security Agency attorney, said on CNN that the afternoon of “sound and fury” raised questions about the administration’s approach.
“It is not clear whether the President legitimately did plan on making this novel or really quite dramatic legal argument if he did not understand what the words enemy combatant meant and what the ramifications of that kind of designation would mean here,” Hennessey said.
Trump’s new favorite golf partner, South Carolina GOP Sen. Lindsey Graham, was not happy, accusing the President of following Obama’s example in viewing the war on terror as a domestic criminal issue, rather than looking at using the enemy combatant tag.
“The Trump administration missed an important opportunity to send a strong message to terrorists and make America safer. This is a huge mistake. Very sad,” Graham said in a statement.
While Trump’s contempt for the record of the justice system in terrorist cases might satisfy his sense of frontier justice, it also doesn’t reflect reality.
Most perpetrators of attacks on US soil have been handled in civilian courts since 9/11. Many of them, like shoe bomber Richard Reid and September 11 conspirator Zacarias Moussaoui, are serving life in draconian Supermax prisons where inmates are locked in spartan cells for up to 23 hours a day.
Immigration changes stalled, too
The President also announced on Wednesday that he had started the process of “terminating” the diversity lottery program. But his next sentence reflected limits of his personal power to act.
“I’m going to ask Congress to immediately initiate work to get rid of this program,” he said.
While the federal government has a say in how it implements the law, the President has repeatedly discovered that getting Congress to change it, can be futile.
A previous push to change the diversity visa lottery and to move towards a more merit-based system — that was supported by Schumer — foundered in the last comprehensive immigration reform push four years ago.
The President may be on firmer ground in his vow to enhance “extreme vetting” for immigrants — a pledge he first made in his campaign.
At the White House, Sanders called for improvements in biometric and biographical data for immigrants, to require more documentation and verification and better sharing of intelligence with foreign law enforcement and intelligence services.
But there are no guarantees that an enhanced vetting system may be effective in predicting whether an immigrant will be radicalized and embrace terror years hence. The courts have also repeatedly curtailed Trump’s plans for strict restrictions on entry by citizens of states with a history of terrorism.
Uzbekistan, meanwhile, was not on the list of nations covered by the plan’s latest iteration.
