On Thursday, disagreement over the Constitution was aired on Fox News' "Fox & Friends" when legal analyst and former judge Andrew Napolitano said that the New York City alleged terrorist should not be treated as an enemy combatant. President Donald Trump suggested on Wednesday that Sayfullo Saipov -- the assailant from Uzbekistan who killed eight persons and injured 11 in a vehicular attack on Monday -- should be tried as an enemy national and confined at the Guantanamo detention facility. When Napolitano was asked about the decision by police to read Saipov his Miranda rights, he said that it was necessary under the Constitution.

“Fox & Friends” co-host Steve Doocy pointed out that Saipov is a legal resident of the United States,  “which entitles him to certain Constitutional protections,” adding, “unfortunately.”

“Because we’re defending the Constitution,” Napolitano said. “And the Constitution was written to protect the people we hate.” A visibly angry show co-host Brian Kilmeade rebutted, saying, “And the people that hate us and kill us, we actually treat them great.”

Napolitano responded, “We do treat them constitutionally, and I know your anger —.” Kilmeade said, “They don’t deserve it. It’s not anger. It’s not anger, it’s self-preservation.” He then read a quote from remarks made on Wednesday by Sen. Lindsey Graham (R-SC) that Saipov should be treated as a “soldier of the caliphate.”

While Napolitano said that he had no brief against against Graham, he suggested that the United States “should declare war on the caliphate, which we’ve not done. Which would then make these people soldiers, which would then make them subject to the Geneva convention, which would then remove them from the prosecutorial system.” He added, “Look, we cannot take shortcuts around the Constitution.”

Partial transcript:

BRIAN KILMEADE (CO-HOST): And he could be looking at the death penalty. He is way too comfortable. I'm not saying torture, but there's got to be a way for these terrorists not to feel as though they're in the promised land in our hospital. He also complained about his wounds when he was in the wheelchair, which he demanded, while he was being read his rights. He is way too comfortable.

STEVE DOOCY (CO-HOST): Yeah his public defender asked for them to change --

KILMEADE: Keep in mind, he is actually looking at his iPhone of people being run over by tanks and shot in the face, and at the same time he's complaining about his wounds after he gets medical treatment, smiling ear to ear about what he did. There is a fundamental inequity to what's going on right now. And we are not getting what he knows into our intelligence people's hands. Law enforcement doesn't know what he knows. And that's the problem. 


KILMEADE: By evening, somebody in the district court read him his rights. For some reason, our attorney general was just sitting on his hands. He never stepped up, got on the same page, and decided if he should be looked at as an enemy combatant. Remember, George Bush took his enemy combatant, one, and put him in South Carolina in the brig for 30 days. It's not so much what happens to him. It's we need to know what he knows and who else he’s in contact with. 


KILMEADE: This guy is an enemy combatant, should be treated like that, if we're serious about keeping our people safe. Your mindset should be this: What if that was your family member that was run over at that bike path on a 56-degree beautiful day? And I think people are distancing themselves, trying to put him through the criminal justice system, and they're not acknowledging that we're in a war.



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Martin Barillas is a former US diplomat and the editor of Spero News.

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