Author's Note: I wrote the piece below on November 15, 2009. After that, the NYPD released cost estimates indicating that the trial would cost over $200 million a year in security. To me, these cost estimates are outrageous and suggest that the site is not safe under any circumstances. I wrote an op-ed in the New York Times published Januray 17th, 2010 arguing that the trial should be moved to Governors Island. Why on earth would we spend what could amount to $1 billion on the trial in the financial capital of our country, that has twice been attacked by terrorists, and in a dense residential and commercial neighborhood that went through the aftermath of September 11th? Since then, as Chair of Community Board 1, I advocated for moving the trials to military bases in the Southern District of New York where a federal trial could be held, including but not limited to Stewart National Guard base, West Point and the Federal Bureau of Prisons in Otisville, NY. Recently, Mayor Bloomberg indicated that he supported Community Board 1's idea of moving the trials to a military installation.
My phone started ringing within minutes of Attorney General Eric Holder's decision to try Khalid Sheikh Mohammed in Lower Manhattan, just blocks away from Ground Zero. I have represented the Lower Manhattan district for over four years as Chairperson of Community Board 1 and sit on several of the government boards that govern downtown Manhattan. People in the community called me upon hearing the news, some saying it is fitting that Khalid Sheikh Mohammed be brought to justice in the community that he attacked, while others feared security risks of the impending trial. The announcement led to a torrential outpouring of emotion and viewpoints, which Republican officials were quick to pounce on and politicize.
Personally, and I stress I speak for myself here, I think it is imperative and absolutely appropriate that Mr. Mohammed be tried in the shadow of the World Trade Center site. In my view, it should indeed be a jury of New Yorkers, the community who was most adversely impacted by the horrific events of September 11th, who decide Mr. Mohammed's fate. The people outside of the court room are entitled to have the trial in their community, the place of the attack, just as Mr. Mohammed is entitled to a fair trial in the court room. Federal trials are open to the public and this will then be an opportunity for family members, the community and the public as a whole to try to get closure on a horrifying event. Some defense attorneys have suggested that Lower Manhattan will not afford him a fair trial, as the jury pool is tainted. But what community was not impacted by 9-11? What constitutes fairness will be a well run jury selection process and voire dire.
Another reason the trial should absolutely be held in federal court in Lower Manhattan is for the rule of law to be upheld. Holder's announcement brought an end to a dishonorable chapter in our nation's history when the Bush Administration in 2006 set up special military tribunals with their own standards of evidentiary rules that were significantly looser than those required in a criminal trial in federal court. Most disturbingly, no sooner did Holder make his announcement, then we quickly saw Republican officials jump to condemn the decision and to urge a return to the secret military tribunals.
"Classified information can be inadvertently leaked" intoned Senate Minority leader Mitch McConnell and then further ominously warned: "And our communities will be potential targets for attack." McConnell and others capitalized on the politics of fear to scare Americans into believing that we must accept these secret military tribunals as the only venue. Dick Cheney and Joe Lieberman quickly took to the Fox news airwaves to deride Holder's decision. Don't McConnell, Cheney and Lieberman remember that it was a New York federal court who convicted Sheik Omar Abdel Rahman, who was the mastermind behind the 1993 World Trade Center bombing? Since the September 11th attacks, in fact, 195 terrorists have been tried and convicted in the federal justice system. Not one of these convicted individuals has ever escaped from the supermax federal prisons. Under Bush's much vaunted military tribunal system, only 3 cases have commenced with none of them resulting in a conviction.
Most disconcerting, however, is the absolute disregard for the rule of law that these special tribunals had. We would have had justice served years ago for the families of the 9/11 victims, for the community that was attacked, and for our nation as a whole, if the Bush Administration had handled Mr. Mohammed and other detainees in the proper way from the beginning. After years of delaying a proper trial, we now finally have the opportunity to bring closure to the horrific events of September 11th.
A final reason that it is imperative that the venue be in federal court is so we can have a full public airing of the methods of interrogation that were utilized. Mr. Mohammed was the subject of 183 instances of waterboarding, or simulated drowning. Why should that information about waterboarding and other methods of enhanced interrogation be locked away in a secret tribunal rather than see the light of the day that a public trial in federal court will afford. We once and for all need to shed light on the fact that a means of torture was used, and used repeatedly. We have to remember that the United States after World War II, in the Tokyo Trials, tried and convicted, and indeed hung, Japanese soldiers who had waterboarded American POW's. It is also instructive to look at our Founding Fathers such as Thomas Jefferson who decried the use of torture in his Notes on the State of Virginia "What has been the effect of coercion?" he asked. "To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth." In words that ring all the more truly today, Jefferson wrote to Thomas Paine: "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
New York City deserves this trial. Our community has lived with the impact of the September 11th attacks. We expect a fair trial, and one that actually happens unlike the secret military tribunals, and one which is open and public and upholds the rule of law, except of course for issues affecting national security where the federal government has proper procedures in place to handle classified information. We finally have the opportunity to have a full airing on the devastating September 11th attacks and I hope to be there in the trial room in my community to hear it too.