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Judge H. Lee Sarokin

Judge H. Lee Sarokin

Posted: January 9, 2010 01:58 PM

Civil Terrorist Trials - Yes; New York - No

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President Obama wants to convince the world that we are not the same as we were before. He has renounced torture and extraordinary renditions. He has determined to close Guantanamo for what it represents and symbolizes. He has decided to try major terrorists as criminals and accord them the rights granted by our Constitution. There is a legitimate debate as to whether terrorists should be treated as enemy soldiers or criminals or some other designation. They are clearly a hybrid. They have no uniforms, no centralized command, no single national origin or base, no one with whom to negotiate and no one to surrender. Their plots are criminal and their intentions are destruction of property and innocent human lives. If it is a war, it is a never-ending one. Thus, if treated as soldiers, for those captured, confinement could be indefinite. The Obama administration has decided to grant civil trials in federal courts. It is a principled decision with a view toward earning the respect of the civilized world and restoring the country's integrity and commitment to its values. Whether it wins the hearts and minds of our enemies is doubtful.

Conservatives, such as Bill O'Reilly suggest that "terror thugs have no rights and they should be killed on the spot". Even if we determined them to be soldiers in "the war on terror", once captured, just killing them is not the American way----not even for conservatives. Mr. O'Reilly should be reminded that of the 775 detainees at Guantanamo, (supposed terrorists), 420 were freed without charges ever having been made against them. It is easy to arouse public support for denying rights to someone who clearly tried to blowup an airplane and murder its passengers, but many suspected of terrorism are not terrorists. Nonetheless, under the previous administration for a number of years, they were detained, denied lawyers, denied hearings, denied visitors and denied their lives with their families. Concededly, Mr. O'Reilly's policy would have avoided the need for Guantanamo; he just would have had everyone executed, the guilty and innocent, and touted the conservative values of economic benefits and taxpayer savings.

We cannot have a justice system that differentiates on the rights accorded depending upon the amount of evidence pointing to guilt. We presume innocence in this country, even for those we are convinced are guilty. I am fully confident of the federal judiciary's ability to conduct such trials and for our prison system to securely confine those found guilty. However, I do oppose having those trials conducted in New York City. I assume that symbolism was one of the reasons that it was chosen. But I think that having the trials is symbolic enough. I agree with the President that we should not be guided by fear, but I do not think that we would reduce protection at airports to prove that we are not afraid. Designating New York as the venue is an act of bravado and provocation---sticking one's chin out. It creates unnecessary risks for the citizens of the city. Mayor Bloomberg predicts that it will cost $200 million per year for the trials, and that was the clincher for me. We could feed a lot of children; pay a lot of teachers, etc. with that money. I suspect that a new (and isolated) courthouse for just these trials could be built for a fraction of that cost.

It is not too late to change the venue. Indeed, the defendants will probably request it. The trial should be conducted at a remote rural location and a safe perimeter established. In that way all those involved can be secured, and the uninvolved not put at increased risk. That cannot be accomplished in New York City. It is not a sign of fear to reduce the risk of attack in the same way that we do (or at least try to do) at airports. The risks to the public and the costs for a trial in the city are too great. The fact of the trial demonstrates our commitment to our values; the location of it does not.