Can American Citizens Be Executed at GITMO?

While American citizens cannot currently be executed at Guantánamo Bay (GITMO), there are complex legal factors that make the issue ambiguous. The primary barriers are federal law and constitutional protections, but there are historical and legal precedents that raise questions about the possibility. 

Here is a breakdown of the legal context.

Federal Law:
Military Commissions Act of 2006: This act established the military commissions at Guantánamo and specified that they have jurisdiction over “alien unlawful enemy combatant[s]“. This wording legally prohibits the trial of U.S. citizens by military commission at GITMO.

Federal Court Jurisdiction:
U.S. citizens accused of terrorism are tried in federal criminal courts, where they are afforded constitutional protections and due process rights. The American justice system relies on this distinction, which is a key reason why critics argue that trying foreign detainees in military commissions is a form of discrimination based on nationality.

Military Tribunals: 
Military commissions at Guantanamo Bay have been used to prosecute non-U.S. citizens suspected of terrorism. While there have been proposals to try American citizens at GITMO, they have been opposed by legal experts and human rights organizations because it would violate established U.S. law. 

Status of Guantanamo Bay

Legal Standing: 
The legal status of Guantanamo Bay has been a subject of debate. The U.S. government has argued that because it is technically not on U.S. soil, certain constitutional rights do not apply to non-citizens held there.

Citizen Rights: 
However, federal courts have consistently upheld that U.S. citizens have different rights from foreign nationals. The possibility of American citizens being executed at Guantanamo would only arise if U.S. law were changed to allow it, which would be a significant and highly controversial legal challenge. 

Constitutional Questions

Sixth Amendment: 
This amendment grants the right to a speedy and public trial by an impartial jury in the state and district where the crime was committed. Using a military tribunal at GITMO would violate this fundamental right for American citizens.

Supreme Court Rulings: 
While the law is clear, constitutional precedent is less so. In the past, the Supreme Court has had mixed rulings on the use of military commissions for U.S. citizens, with one case (Ex parte Milligan) holding it unconstitutional when civilian courts are available, and another (Ex parte Quirin) holding it constitutional for a U.S. citizen who was also an unlawful enemy combatant.

Access to Habeas Corpus: 
In 2008, the Supreme Court ruled in Boumediene v. Bush that detainees at Guantánamo were entitled to constitutional protections and could challenge their detention in federal habeas corpus proceedings. This decision extended some constitutional rights to the base, but it did not fully resolve the legal status of U.S. citizens there. 

Hypothetical Paths to Execution

Congress Changes the Law: 
A future Congress could potentially amend the Military Commissions Act to authorize the trial of U.S. citizens by military commission at Guantánamo. However, such a move would face immediate constitutional challenges.

Presidential Action: 
Former President Donald Trump has in the past suggested he would be “fine” with trying U.S. citizens in military commissions at GITMO, but doing so would have been illegal under current federal law.

Execution Chamber: 
In 2008, military regulations were quietly amended to allow executions by lethal injection at GITMO, away from the typical location at Fort Leavenworth, Kansas. While this amendment enables the possibility of executions on the base, it does not bypass the federal laws preventing the trial of U.S. citizens by military commission. 

Current Situation

For now, the trial of U.S. citizens by military commission at GITMO is illegal under federal law. Anyone accused of a crime meriting the death penalty would be tried in the U.S. federal court system, as was the case with Boston Marathon bomber Dzhokhar Tsarnaev. Constitutional issues remain a point of legal debate, but the clear statutory prohibition is currently the primary barrier.