The 9/11 trial and New York
After 9/11 it became an article of faith in New York City that we must resume normal lives and not let terrorists win by drastically altering our ways. There was a down side to that – for example, the environmental hazards of the attack were not addressed properly. But overall, it worked, and New York got its strut back.
I have to say I am a little disappointed that the Obama administration, facing a sudden spurt of opposition in the city, has dropped its plan to pursue the 9/11 trial at the federal district court in lower Manhattan. It is a courthouse where many famously dangerous people have been brought to justice – spies, terrorists of many stripes, including al-Qaeda members, leaders in narcotics cartels, a former CIA agent who conspired to murder a string of prosecutors, Mafia bosses, serial hit men. In the five years I worked there as a reporter, the building always felt secure, protected by an excellent security staff made up of retired police Intelligence Division officers.
The decision to move the trial elsewhere brings a sense of relief – relief that city taxpayers won’t have to spend hundreds of millions of dollars to make the trial happen; relief that Manhattan won’t be tied up for months and months; relief that we won’t have to be reminded quite so relentlessly about that sunny day in September. It’s true that the trial would have been an undue burden on people living downtown, especially in Chinatown.
But the city has lost something by not being able to bring these people to justice within the normal jurisdiction for a terrorist crime committed in Manhattan. Particularly objectionable is how it came to pass that Mayor Bloomberg withdrew his support for the trial – due to lobbying from the Real Estate Board of New York, as today’s New York Times story makes clear enough. It’s often said in New York that everything comes down to real estate values. There are other values to consider as well.
How about Governors Island?
Regarding a 9/11 trial –
The September 11 attacks require September 11 response to bring them to “justice,” not a September 10 response.
I think we tried the first World Trade Center bombers (the ones back in the 90s) in NY; that worked out fine. I’m sure there are security issues, but if the US government feels it isn’t even capable of safely trying these men on US soil, it certainly undermines my confidence in our overall ability to wage this “war on terror” in foreign countries.
This post simply begs the question. You say we should try them in the “normal jurisdiction.” That’s the point. There is no “normal jurisdiction” for trying someone who plans an attack on your country from another country and kills 3000 citizens.
As Bender says – this is approach is sooo September 10th.
Irene
Shouldn’t we learn from the first trial? Doesn’t the fact that important intelligence information, like for instance that we had identified Osama bin Laden as an al Queda leader, was made public bother you?
It’s all together possible that 9/11 would not have occurred but for that trial.
How likely is it that “9/11 basically happened on Clinton’s watch” will catch on? Not very, I think, but you gotta admire the effort.
F.Y.I.:
http://www.nytimes.com/2009/11/24/opinion/24iht-edgerson.html?_r=1
For some, it may seem a matter of poetic justice to have the 9/11 trial in New York. But it seems to me that serious safety issues, the heavy expense required of local government and the likely tying up of a major part of New York City, including the financial district, for an indefinite but surely very long period of time, justify finding a more easily secured site.
Consider the incentives offered to terrorists under the Attorney General’s guidance: Carry off a bloodthirsty spectacular, killing thousands and destroying the center of a city and then, under the Holder rules, receive the added bonus of paralyzing the same city for another five years during a show trial that all agree has a foregone conclusion. The bigger the city the bigger the bonus bestowed upon the fanatics.
Holder undoubtedly knows the maxim “Fiat justitia, ruat caelum” – Let justice be done though the sky fall and apparently embraces it. I wish he would consult more widely before he imposes it upon the rest of us.
I don’t beleive in arguing in contray to fact speculations and Sean’s standards brands politiczation gets us nowhere.
The trial will be moved down the east coast it seems and Mr. Forlini et al can be happy here, and, my guess, probably for the best.
Mollie
It’s not about blaming Clinton. Back in 1993 no one was thinking in terms of military commissions, so I don’t blame him for that decision. However, in the wake of 9/11 virtually all those involved in the 1993 trial, including members of Clinton’s own Justice Dept, believe trying these men in a civilian court is a mistake. The 1993 trial resulted in serious leaks of intelligence, some of which aided bin Laden and al Queda – that’s a fact.
There is a tangential irony in all this: Obama is sanctioning Predator assasinations of Taliban an AQ cadres, without due process, but insists that the people he has here get the whole enchilada. What’s with that?
I think this was a very sound move by the Obama administration to decide not to hold the trail here. I don’t think in any way these men can be compared to Mafia gangsters and the like. They are of a totally different order. And the protection needed to secure their safety and the safety of all those living and working in the neighborhood would be far too expensive and disruptive to New Yorkers. New Yorkers paid enough on 9/11.
Full disclosure here: I would prefer military trials for all them (and the Christmas Day attempted-terrorist over Detroit). These men were not criminals. They were all about committing an act of war against a sovereign nation and should be handled thus. However, if convicted, they should NOT receive the death penalty.
Not to worry, President Obama’s spokesman, Robert Gibbs, assures us that it will all be a show trial, that is, that KSM will certainly be executed.
However, if the goal was to gain more world-wide “respect” by not having those who committed acts of war adjudicated in military commissions, I’m not sure that show trials are the way to do it.
“They were all about committing an act of war against a sovereign nation and should be handled thus. However, if convicted, they should NOT receive the death penalty.”
If they are actually soldiers, then they should be treated as prisoners of war. Also, their “country” would have to be recognized. Only countries (and not individuals) can commit “acts of war”.
If they are not soldiers, they are criminals and should be tried as such.
None of the stories reporting Mayor Bloomberg’s comments about the costs and the restrictions, seemed to note that he said if there was no other solution, than, of course, New York would cooperate with the Feds. He doesn’t call for military tribunals, I noticed. And the Mayor of Newburg up the Hudson volunteers his city! What’s with the New York City cold feet?
Irene — I agree that the phrase “war on terror” is a very ambiguous one.
Unagidon — I agree that if the “war on terror” is indeed a war in the old sense, then these are not criminals.
and this points out.
It seems to me that this new war is a new *kind* of war. It is not a legal act of a nation. It is an act of a *movement* and one of international origin. It is not conducted like an old war — its means are assassination and indiscriminate killing *by choice*. And it is highly limited in its methods — it is directed against relatively few people at a time.
It seems to me that the last two facts might require/enable a different sort of ethics to determine the morality of self-defense in such “wars”. We definitely need a new word for whatever it is the terrorists are doing.
Ann & Sean, What’s always been hard for me to get my head around in the war on terror is what exactly distinguishes an enemy combatant from a POW from a plain old civilian. And what makes defendants like these war criminals as opposed to criminal mass murderers? Is it the fact that the target was the US government? The fact that the defendants see themselves as soldiers in a war? What box would we put Timothy McVeigh (Oklahoma City) in? He was tried in a civilian court (though not in Oklahoma). And I guess my other question is, if there are unresolved issues about status, if things really are different today, who gets to decide? Shouldn’t those kind of issues be resolved through our existing court system?
It seems NYC has suffered anough over 9-11.
If the people of NYC via their elected representatives (e.g. mayor, and their US senators and representatives), say they do not want to bear the burden of this, the Feds should move it to another venue. A change of venue is not uncommon, and this is a large country after all.
Why not hold the trial in Washington DC, or maybe Chicago, Minneapolis, Dallas, or Los Angeles?
Irene,
These are good questions, and are indeed the reason that we have to be careful about how we treat these men because we are creating precedent.
Although the law of war is now codified to a great extent in various multilateral treaties, the nature of warfare is such that the law of war is always developing by custom based on the way war is conducted. In fact, a lot of what we now have codified in things like the Geneva Conventions is really just customary law that developed over generations. Every generation and every war has features that the customs and treaties may not directly address.
The easy answers are, a lawful combatant is a member of the armed forces of another state that follows the laws of war. It’s really two parts – he has to be in a lawful status and he has to abide by the laws of armed combat. An unlawful combatant is someone who lacks lawful status – i.e. is not a member of the armed forces or other recognized force and does not abide by the laws of war. Technically an unlawful combatant is by definition a war criminal since to engage in combat while not in a lawful status is itself a war crime. I think, in fact, we usually use the term war criminal we mean someone who has violated the law of war in a way that is more than just engaging in combat – e.g. intentionally targeting civilians, executing prisoners, etc.
These guys don’t neatly fit any of the normal categories, nor do they fit in the categories that have developed post WWII. They are non-state actors, but they aren’t exactly insurgents as in a civil war. When they are operating in Iraq or Afghanistan, they are, but when they directly attack the US it’s more complicated. They aren’t like McVeigh. He was a US citizen during peacetime who attacked the government. His status might have been different if there was a state of rebellion, but in peacetime I think the only way to treat him was as a civilian.
Key factors that it seems to me weigh in favor of treating them as combatants and not criminals are, a) that their target is not individuals or groups of individuals, but the nation itself.- it’s an existential threat; b) they receive or have received support and shelter from other states or elements within other states; c) they act internationally; and d) they consider themselves in a state of war. Since they have no status as lawful combatants and do not follow the laws of war, they should be tried as war criminals. The traditional way to try such people is in either and international or military tribunal.
The thing that is being lost in this discussion is that the Congress has already established a military tribunal system. It seems to me that it is incumbent on the administration to do more than exercise its discretion to choose the forum. It has an obligation to explain why doing it their way is better. Indeed, since these people have no recognized right to a trial in civilian court, unless they can show that it is safer, they have no basis for doing it.
US citizens have the right to access our civil and criminal court system; they cannot be denied that right.
Foreigners on the other hand, do not have the same rights as American citizens. For example, someone visiting here from Italy who is not an American citizen does not have the same rights as an American citizen. Likewise, is I (an American Citizen) am visiting Italy, while in Italy I do not have the same rights as an Italian citizen.
That having been said, most civilized nations recognize the rights of Man, those basic humans rights to which are all entitled, and the dignity with which we should be treated.
Now come these terrorists. They are not civilized and they wish to destroy things, kill people and in general, hurt and weaken our society.
You are correct Sean, in that society (all societies) has the right, either to grant foreigners the full set of civil liberties, or to only grant them basic human rights.
With the 2008 election, the majority Americans decided to grant these men the rights and privileges normally only accorded to American citizens. I am a Republican, but I must admit that to their credit; regarding this issue, both President Obama and leading Democrats were very clear prior to the election.
I do not happen to entirely agree with this (apparently neither do you) but no matter; in our land the majority rules, and most of my fellow Americans (and yours) think the civilian criminal court system is the best way to deal with these men.
And so now the main question is; where to hold the trial?
Again, considering what NYC has been through, and what this will cost the people of that city by way of money, inconvenience, and a not unreal risk to life and property, and that most leaders of NY state and NY city have said they do not want the trial in their state, it seems the Feds should move the proceedings to another area.
Accordingly then, prudence would dictate the Feds carefully consider how to best maximize security and how to minimize inconvenience to the public. The public after all, is paying for the proceedings.
Some large cities are better suited to these sorts of things. San Francisco for example, would not be a good choice, narrow streets and lots of daily traffic issues. As a practical matter then, the great cities of the Midwest and South would probably be better suited to handle such a trial. Washington DC might have enough public facilities to accommodate an even like this, but then security comes into play; nation’s capital and all. I think they should review Minneapolis, Chicago, Dallas, Phoenix, or even smaller cities like Detroit, Indianapolis, Omaha, or Saint Louis.
And so Sean, while you are correct in that we have the say-so in this, the fact of the matter is we have already settled whether on not to try these men in civilan or military courts. We settled that question via the 2008 election.
As a group, as a society, Americans by our vote in the 2008 election, decided to elect people who flatly stated their preference for using the civilian courts; the majority ruiles. End of story then; it is time to accept the wishes of the majority of your fellow citizens, have confidence in their good judegment, and move on.
I tend to agree with you, but the whole issue (military versus civilan courts) has moved beyond your argument.
Your point is not moot, but in fact the matter has been settled.
“Since they have no status as lawful combatants and do not follow the laws of war, they should be tried as war criminals. The traditional way to try such people is in either and international or military tribunal.”
Sean, this makes sense to me. But looking at the situation at Guantanamo – prisoners being detained for many years without being charged or tried – it seems that, if this is the norm for military tribunals, then those norms need to be revised. Do the codes that control military tribunals make any representations about such things?
I think most Americans believe that these prisoners are being detained simply to keep them from operating against us. But the right way to do that would be via a court proceeding that determines their guilt (or innocence) and an appropriate sentence. Or so it seems to me.
Ken
I don’t think this is as settled as you do. We still have a congress, and a single election can’t be seen as settling an issue like this for good. The Guatanamo issue was only important for a very small portion of the electorate as can be seen by the reaction to the decision.
Jim
As for the length of detention, it’s a lot like the kid who kills his parents and asks for leniency because he is an orphan. An important, if not the most important, reason that the commission haven’t been held is because of numerous successful and unsuccessful legal challenges mounted by the very people now complaining about the indefinite nature of the detention. This includes AG Holder’s own former law firm.
Besides KSM’s commission was underway when Holder took this decision. He’s guaranteed another 2 or three years.
What do the terrorists call themselves besides “jihadists’? As I understand the Muslim meanings, in some cases at least a jihad must be a war against infidels. How do Muslim theologians define “war’? No, those definitions are not our legal ones, but they might be enlightening.
What does international law say about such incursions? During the American Civil War there was an analogous group, Quantrill’s Raiders, who were accepted by the Confederacy as Confederate soldiers with their leader being made a Cap;tain in the Conffederate Army. They made incursions into border states and other places attempting to convert the people there into Confederates. Their method was tovery brutal the Confederacy eventually kicked them out of their army. Quantrill was ultimately beheaded by a Union officer.
All these people sound like brutal psychotics to me. So is there really any question of guilt? Should the New York terrorists’ lawyers put forth a defense of not guilty by reason of insanity? (Could that happen under military law?) Is the solution to lock them away for life as incurably insane?
And what about Lawrence of Arabi and his band? He also led incursions against the enemy. The Muslims no doubt approved of him.
Sean – Yes we have a Congress and yes they can make and/or change laws. And so Congress – if Democrats lose control of it – could revert to handling these men via the military system.
However for the time being, the majority in Congress, along with our President have made known their preference for and intention of handling these men via the civilian court system.
We are going to try KSM in civilian court, and we will do the same with the Christmas Day bomber – period.
As a practical matter then, whether you or I like it of not, this KSM fellow will be tried in our civilian court system.
The only question of import (for now) is in what city and state will we hold the proceedings.
Time spent debating the overall philosophy does not help us settle the matter at hand i.e.; what is the best location to hold the KSM trial.
It seems to me that the * intent* of the violent acts should determine how the act is classified. If the intent is the same sort as that of military violence, then it would best be defined like “war”. War is policy enforced by military, said von Klausewitz (or something like that). But the “policy” of the terrorists is simply their group intention. It’s not the policy of a nation. So, though war and terrorism are analogous, there are important differences.
Not least among those differences are the appropriate procedures for trying them. (See Quantqnqmo.) Given the fact that we cannot gather evidence as needed in their home countries, it seems to me that an argument might be made that purported terrorists can be justlyy held until our right to discovery is made possible. Yes, this might lead to some innocent individuals being held for years but wouldn’t that unintended inequity be balanced off by the potental of a major city with all its noncombatnt citizens being destroyed by a smuggled terrorist atom bomb> (They really aren’t very large.)
It seems to me that terrorism needs its own kind of court with its own laws and procedures — especially procedures.
Ken
It’s just not as simple as that. The military commissions still exist. In fact, they are planning to begin several new prosecutions with the administration’s blessing.
No one ever “voted on” trying KSM anywhere. The administration, through the AG, took a decision to exercise one jurisdiction rather than another. The jurisdictions are not exclusive. Granted, this decision plays to their base, but they still have a choice. One thing that may drive this is funding. The administration is requesting more than $200 million to buy a prison to transfer the GTMO prisoners top the US. With 2/3 of Americans opposing closing GTMO (including half of Democtract and 3/4 of independents) I don’t see the solons on Capitol Hill summoning the will to fork that money out, particularly since we already have a $100 plus million facility at GTMO already.
If they weren’t able to get their members to commit political suicide over heal care reform, do you really think they will be able to over something as unpopular as this?
Holder made the decision to try KSM (if you believe the hokum that Obama had nothing to do with it) before Christmas and before the Brown election. Things have changed and I suspect many in the administration are already warming the coals to roast the AG.
“All these people sound like brutal psychotics to me. So is there really any question of guilt? Should the New York terrorists’ lawyers put forth a defense of not guilty by reason of insanity? (Could that happen under military law?) Is the solution to lock them away for life as incurably insane?”
Ann – How many terrorists can dance on the head of a pin?