The question is asked because even though President Donald Trump initially said that the man who killed 8 and injured about twice as many in an Islamist rampage on the Lower West Side of Manhattan bike lane using a rental truck should be sent to Gitmo and tried as an enemy combatant, but then later changed his mind, saying it would take too much time compared to a Federal prosecution.

He had it right the first time.

If the NYC terrorist is an unlawful combatant in the Global War on Terror, then he belongs at the U.S. military detention facility at Guantanamo Bay, Cuba (a.k.a. Gitmo).

The problem is Obama’s 2009 Military Commissions Act, which gives unlawful combatant detainees accused of war crimes virtually the SAME rights you or I would enjoy in a Federal court of law. That’s why it’s taken years for several accused detainees to come to trial.

The Law of Land Warfare (U.S. Army Field Manual 27-10) and the Geneva Conventions allow accused war criminals only the same rights as an accused U.S. soldier would have under the Uniform Code of Military Justice. Giving accused terrorists (unlawful combatants) an opportunity in U.S. Federal Court to be read Miranda rights, go free on technicalities, go to a Federal prison where they can spread their rhetoric and recruit other inmates and then eventually be set free puts us all at risk. Expediency should never come before security.

Gitmo is legal, and it is a small but essential piece to the big puzzle of how we defend ourselves in the Global War on Terror.

Trump needs to get Gitmo right and use Gitmo as a tool in our efforts to defeat the Islamist threat. He is fence-sitting, and it doesn’t suit him or his objective of winning the Global War on Terror.

Imagine for a moment that Osama bin Laden had been captured instead of killed in a raid. Would the President believe he should be tried in Federal court or a Military Commission? Why?

If Osama bin Laden had been captured it would have been the ultimate test of legal and political wills.

We are either at war or we are not at war. The Authorization for the Use of Military Force (AUMF) provides the legal permission to wage war against terrorists. It allows us to capture, interrogate and retain detainees. Once captured, the Law of War and Geneva take over as guiding edicts on treatment and privileges for those detained and those accused of war crimes.

Would bin Laden have been tried in Federal court or a military tribunal?

His status as the leader of al Qaeda and the planner of the attacks of September 11, 2001, would make him the top commander for the opposing forces. Surely if anyone could be tried for war crimes it would have been him.

Why then is there even a debate about the status of those who followed his example and perpetuate the jihad against the infidels?

Lawfare and politics.

Using the liberal legal system of the United States against us is not a new tactic, and has been practiced vigorously by our enemies since the very beginning of the Global War on Terror, shortly after the attacks of 9/11/01.

An al Qaeda manual captured by British intelligence prior to 9/11 revealed our enemy’s protocols if captured. They should lie about their treatment, claim they were abused and tortured, disrupt detention operations, threaten and harass guards and demand a lawyer.

That last part has proved most advantageous. The result? 730 Gitmo detainees have been released. None have been executed, beheaded, blown up, hacked to death, dragged naked and lifeless through the streets, drowned or burned alive, all things our enemies have done to us and/or our allies.

Never mind that at least 30 percent of released detainees are either confirmed or suspected to have returned to the fight. My concern is more about the 70 percent of released detainees we don’t know about. Where are they, your neighborhood, trying to rent a truck?

Even in a game of Capture the Flag the jailer knows not to release captured members of the other team until the game is over. Why then has our strategy been to release unlawful combatants before the end of hostilities? That’s not a winning formula, and it sends a message to the enemy that we are inferior and weak.

Some released detainees have been paid off by their governments of origin and profited from published book proceeds. So, if you survive the jihad and get captured by the Americans, you’ve hit the jackpot!

Former Gitmo detainees were allowed to claim habeas corpus, even though precedent dictated that even lawful combatant POW’s could not challenge their wartime status in civilian court. How then did we get from there to here, where an obvious and confirmed case of jihad has been turned almost matter-of-factly into a civilian crime? Expediency?  Convenience?

My patience with the POTUS on this one is running thin.

If your gut tells you that the NYC terrorist should be held and tried at Gitmo then so let it be done.

If bin Laden would have been taken and then tried at Gitmo, then so too, should the lowest member of the group.

If not, then we are not at war with unlawful combatant Islamists who want to kill us; we  are victims of random, disconnected violence, and should study the childhood of every terrorist and attempt to empathize with their disadvantaged upbringing and feel sorry for them and others like them, and then bear our throats for beheading.