It appears that Khalid Sheikh Mohammed might not get tried in New York City after all. The N.Y. Daily News reports:
The White House ordered the Justice Department on Thursday night to consider other places to try the 9/11 terror suspects after a wave of opposition to holding the trial in lower Manhattan.
The dramatic turnabout came hours after Mayor Bloomberg said he would “prefer that they did it elsewhere” and then spoke to Attorney General Eric Holder.
“It would be an inconvenience at the least, and probably that’s too mild a word for people that live in the neighborhood and businesses in the neighborhood,” Bloomberg told reporters.
“There are places that would be less expensive for the taxpayers and less disruptive for New York City.”
State and city leaders have increasingly railed against a plan to try Khalid Shaikh Mohammed in Manhattan federal court since Holder proposed it last month.
Dilan Esper says:
It’s one more propaganda victory for terrorists if they move it.
January 28, 2010, 11:11 pmAnon21 says:
From what I’ve heard, Bloomberg is right that it would be seriously disruptive, as currently planned. But there’s no need for it to go ahead as planned. The DoJ is talking about thousands of steel barriers and perhaps hundreds of federal officials. This is pure security theater; al Qaeda is not going to bust these guys out of the federal courthouse. Security procedures should be the same as for any other dangerous defendant, and should focus on preventing an escape by the suspects without outside help (incredibly unlikely) and also on preventing the suspects from killing themselves before or during the trial (somewhat more likely).
January 28, 2010, 11:14 pmNot worried says:
What hasn’t changed is that he’ll be convicted and executed, just as the president said.
January 28, 2010, 11:17 pmCornellian says:
Traffic problems? That’s his objection?
January 28, 2010, 11:25 pmSoronel Haetir says:
It doesn’t seem like there are all that many districts that would have hjurisdiction over a 9/11 case if KSM were to attempt an argument about being tried in the district wherein the crime was alleged to have occured. There’s Pennsylvania and DC, where else? Perhaps Boston or other cities because some of the terrorists boarded planes there?
There was a fun state case earlier this year with just such a fact pattern, a conviction getting tossed because the trial judge refused to move it back to the county where the crime had taken place after it got moved for publicity reasons. The state court ruled that a defendant has an absolute right to be tried in the original court if the venue is going to be changed anyway.
January 28, 2010, 11:37 pmJay says:
It could be transferred anywhere if the defense so moves. Fed. R. Crim. P. 21. Otherwise, Rule 18 requires prosecution “in a district where the offense was committed.” The obvious thing to do would be a move to EDVA. There’s no requirement as to division within a district, so the trial could even be moved down to Richmond or Norfolk if the gov’t wanted to avoid Alexandria.
January 29, 2010, 12:04 amneurodoc says:
Oh yes, that should be the paramount consideration NOT. I’d worry more about the effect it would have on morning traffic congestion.
January 29, 2010, 12:09 amKirk Parker says:
I think Gitmo would be a lot more convenient, not to mention secure.
January 29, 2010, 12:09 amSteve says:
This is all about local business leaders freaked out about the commercial impact of a year-long trial with all kinds of over-the-top security measures. I’m one of those people who derides opponents of civilian trials for the most part, but if those concerns are valid… gosh, maybe the mayor speaks for me after all. (Strangely for a man who won 3 terms, he usually has his finger on the pulse.)
Personally, I find it really hard to believe this is going to be some kind of year-long trial… but if it’s not, there’s apparently been some pretty shoddy communication between the DOJ and the mayor’s office.
I agree that there’s absolutely no need for all this crazy lockdown crap, though. It’s not like this is NYC’s first terrorism trial. We should know by now that there aren’t going to be mad bombers lurking around every corner waiting to blow up the courthouse.
January 29, 2010, 12:26 amEH says:
Oh well, we tried. It was just that the traffic, you see, the traffic was going to be crazy due to the over-the-top security measures. And yes, it is entirely necessary to go over-the-top. Saddam Hussein has nukes, after all.
January 29, 2010, 1:04 amLarryA says:
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I think I’m with the NIMBYs on this one.
January 29, 2010, 1:25 amAnon21 says:
Don’t be daft. Al Qaeda isn’t even a serious organization anymore. They’re limited to laughable, pathetic attempts to strike at the outermost portions of American power. They have no capacity to launch some sort of daring rescue operation in New York City, nor have they ever.
January 29, 2010, 1:39 amJohn Burgess says:
How about Guam?
January 29, 2010, 2:04 amfooburger says:
Wow… this is some serious hubris.
January 29, 2010, 2:08 amMass destruction is not that far from hand.
Perhaps you would be unimpressed by Al Qaeda’s ‘seriousness’ prior to 9/11 as well.
After all, they operated in remote regions of a backwater country and only managed to pull off the occasional bombing.
This trial would be a target, though likely not for a ‘rescue’ in the traditional sense of those captive being released in physical form.
billw, Silicon Valley, CA says:
I agree with Kirk Parker, Gitmo is the place. House Minority Leader John Boehner said Wednesday the Obama administration doesn’t have the votes to change the law to move detainees to U.S. territory for trial or to spend $500 million to refurbish the Thompson prison in Illinois to host the detainees who would be held there while awaiting trial in New York City.http://www.foxnews.com/politics/2010/01/27/boehner-way-terrorist-trials-held-new-york/
January 29, 2010, 2:08 amMaybe this is really the issue.
Tatil says:
I’d think it would be a badge of honor to bring those responsible back to New York and try them there. Now all of a sudden we are making cost-benefit analysis. I thought we were going to fight and win this war at all costs. I guess it is OK if we send our boys to the Middle East, but traffic jams are where we draw the line.
January 29, 2010, 4:26 amKSM terrorist trail may be moved out of New York City | Radio Vice Online says:
[...] noting include Volokh Conspiracy, Gateway Pundit and Michelle [...]
January 29, 2010, 7:15 amMalvolio says:
I think the concern is not that Al Qaeda might make some lame rescue attempt, but some home-grown wacko is looking forward to going all Ellie Nesler on KSM’s hairy ass.
At least, that would be a sensible concern (IMHO), but this is the government, so who knows.
January 29, 2010, 7:34 amRichard Aubrey says:
I think we need a venue for all the VCers sneering at those who thought NYC was a bad idea.
January 29, 2010, 7:54 amIn this venue, they could nuance their previous position until it passed out from hypoxia.
Sarcastro says:
Yay, Richard Aubrey, free speech zones for those you disagree with!
We do need to be afraid of the terrorists we’ve captured. They (or their buddies) are totally gonna kill America unless we don’t give them full due process. It’s the only way to be safe!
January 29, 2010, 8:10 amHoward Gilbert says:
Questions: Given that KSM was in Afghanistan during the entire period, is that not the location of the conspiracy? Does an extraterritorial crime have a specific jurisdiction?
The trial of Noriega took place in Miami although whatever he did took place in Panama. Was this a case where the US could have chosen any venue? Why is it that the DC Circuit has jurisdiction over detainees held overseas but not over crimes committed overseas?
I have long held that it is easier to try KSM for the airline hijacking and the deaths of aircrew and passengers [crimes defined in federal and international law] than for the deaths on the ground. You can only hang him once. Given that the hijacked planes flew all over the place, can you try him in any of those locations or only where the place took off or crashed. Why Pennsylvania? The plane crashed in Penn. because of the actions of the passengers, not the hijackers. DC was the target.
KSM plausibly has a say in the matter. If he asserts that he was an officer in the Army of Afghanistan at the time, he can insist on a military trial. He knows his final destination, so his options now are to try and control the way the folks back home view his story. Forcing Obama to go back on his plans for a civilian trial may be regarded as poking America in the eye.
January 29, 2010, 8:40 amGlenn Bowen says:
Nope- it’s a failure of the administration to push the faces of New Yorkers into it with either a calculated action or just the most moronic lack of foresight ever; I favor that cited first.
Just sayin’. I live here.
January 29, 2010, 9:00 amKevin P. says:
Yawn. Sarcastro, your shtick was mildly amusing years ago but it has long overcome any initial gloss of originality and has just become lame and stale. No doubt it amuses yourself, but I doubt it amuses anyone else any more. Give it up, dude! Life is too short to try to be an unfunny comedian.
January 29, 2010, 9:07 amSeaDrive says:
Unless it upsets the Mayor of New York City!
January 29, 2010, 9:28 amBT says:
Why not Detroit? They could use the influx of additional currency.
January 29, 2010, 9:29 amgeokstr says:
Why should he bother to attack anyone? He’s got tens of thousands of “serious journalists”, 98% of Hollywood, 99% of the unions, 100% of the trial lawyers, and the entire professoriat of the “ism” departments to be his surrogate attack dogs on his behalf. It’s easy to stay above the fray with so many Lewinskys taking the low road for you.
January 29, 2010, 9:32 amDel E. says:
I say we give KSM a fair trial down here in the Northern District of Georgia . . . then we hang him.
January 29, 2010, 9:51 amChem_geek says:
Besides, they could set many bombs off around here and we wouldn’t notice the difference… Oy! This city needs a makeover.
January 29, 2010, 10:15 amRichard Aubrey says:
Sarc.
January 29, 2010, 10:31 amWhat freedom of speech issue? I suggested that some folks nuance the hell out of their previous positions. That’s calling for more speech, not less.
Wherever this trial happens, there will be a perimeter. The Gitmo perimeter, if that’s where this ends up, will look different from the NYC perimeter, which will look different from the Guard base up north which some have suggested.
Whether this perimeter is one block from the NYC courthouse, or ten blocks, it will involve masses of people. Some will be being checked on their way to the courthouse. Some on their way to other business within the perimeter. Yet others will be passing by on their way to locations outside the perimeter, their numbers increased by those now detouring around the perimeter.
It will be a fat target for a truck bomb and its connection to the trial, being the perimeter, would make the point.
McVeigh and others unknown managed a truck bomb, which was mostly a blast bomb. They didn’t think to load it up with scrap iron, half a ton of nails, or cyanide (1993 WTC attempt).
You don’t need any organized al Q force to shoot up a bunch of guys at Ft. Hood, and only a couple to do a truck bomb–Oklahoma City–or half a dozen–see WTC 1993.
So talking about how weak al Q is is sort of skating past the real point.
Back in the days of l’arme blanche, mass murder took a lot of murderers. Now that so much energy can be harnessed and let off as desired….
mikeyes says:
The greatest advantage of holding the trial in NYC is that if he goes free, they can just walk him out the door into the street to walk back to his hotel. What are the odds of his surviving the first block?
January 29, 2010, 10:42 amSteve P. says:
If you’re pro-prosecution, don’t you usually want someone tried in the place that they inflicted the most damage?
I know it’s turned into a political thing, but I really didn’t see this whole brouhaha coming. I’d think Republicans would want to put KSM up against twelve angry New Yorkers.
January 29, 2010, 11:07 amCJColucci says:
The politically controversial point was never whether to try KSM at 500 Pearl Street or, for example, a special facility on Stewart Air Base in the Southern District. The real issue was whether to try him in a civilian court at all. The logistical and budget issues being batted around now are the sort of thing reasonable people could disagree about, and about which most sane people shouldn’t even feel the need to have an opinion.
January 29, 2010, 11:13 amslimslowslider says:
I am still amused by Sacastro. I like the pic too!
January 29, 2010, 11:16 amElliot says:
Could be. If so, we have an obligation to expend the costs efficiently and effectively. That leads to winning sooner at a lower cost. Cost-benefit is very important.
January 29, 2010, 12:17 pmneurodoc says:
Yes, but in reverse order. (It worked for the Red Queen in Alice, it would work for me…er, just kidding.)
January 29, 2010, 1:42 pmNickM says:
How are you going to find 12 New Yorkers who don’t come into the case with preconceived opinions about his guilt and who can serve as unbiased jurors?
Nick
January 29, 2010, 5:02 pmRufusLeeKing says:
Isn’t Obama subjecting himself to Senate impeachability by failing to prosecute Al Qaeda to his utmost under the Authorization to Use Force of 2001?
Here is the UCMJ, Article 99:
“Any member of the armed forces who before or in the presence of the enemy—
(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy;
…shall be punished by death or such other punishment as a court-martial may direct.”
http://usmilitary.about.com/library/milinfo/mcm/bl99.htm
Obama’s repeated failure to engage Al Qaeda attackers and failed attackers on our nation with measures short of the military effectiveness of capture, detention and hearings in a military facility, and in disregard of his ability to keep such combatants captured, without compromise by civilian litigation, under his wartime command, arguably constitutes Misbehavior Before the Enemy.
Is a Commander in Chief reachable through a violation of the UCMJ? I have found no authority that he is not.
Curiously, JFK and Clinton both argued, unsuccessfully for a civil lawsuit stay, that they were soldiers, per their Commander in Chief status.
“Two companion cases arising out of an automobile accident were filed against John F. Kennedy in 1960 during the Presidential campaign. After taking office, he unsuccessfully argued that his status as Commander in Chief gave him a right to a stay under the Soldiers’ and Sailors’ Civil Relief Act of 1940.”
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/clintonvjones.html
“…the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. app. Sections 501-25 (1988 Supp. V 1993), provides that civil claims by or against military personnel are to tolled and stayed while they are on active duty./8 Such relief is deemed necessary to enable members of the Armed Forces “to devote their entire energy to the defense needs of the Nation.” 50 U.S.C. app. Section 510 (1988). President Clinton here thus seeks relief similar to that to which he may be entitled as Commander-In-Chief of the Armed Forces, and which is routinely available to service members under his command.”
http://www.lectlaw.com/files/cas97.htm
January 29, 2010, 5:09 pmleo marvin says:
RufusLee, the flaw in your reasoning is that Obama isn’t a member of the armed forces unless you think a Muslim, born abroad of unmarried, non-citizen parents, can be President.
January 29, 2010, 5:40 pmRufusLeeKing says:
Do you have any legal authority declaring the Commander in Chief of the Army and the Navy is not a member of the military?
Would this preclude the Senate from construing he is?
Even civilian contractors can be subject to the UCMJ.
http://usmilitary.about.com/od/justicelawlegislation/a/civucmj.htm
Are you sure the top shot caller cannot be?
January 29, 2010, 10:44 pmRicardo says:
Congress can impeach a President for any reason it wants. Impeachment is generally understood to be a political question outside the scope of the court system. So far, Congress doesn’t show any interest in doing so.
I don’t know enough about military law to know the exact legal status of the Commander in Chief but it seems to me that one of the basic principles of American government is that the military is firmly under the control of civilian government. It would be very odd to argue that a President could be prosecuted in the military court system because a military prosecutor somewhere thinks the President broke the law.
That’s the kind of thing you would expect to happen in a place like Turkey or Pakistan, maybe, but not the U.S.
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January 31, 2010, 11:48 amRufusLeeKing says:
Ricrado:
I agree it would be absurd to try to deal with a Commander in Chief through a court martial. I would envision a Senate trial (had we a Senate so inclined)of the violation of the statute as constituting a high crime or misdeameanor.
The availability to the Senate of the Commander in Chief to the code ruling those members of the military beneath him is certainly food for thought were the Senate to find his military actions unmilitary. Suppose he showed outrageous disrespect to a soldier during a base inspection? Would civilian torts have to suffice to deal with an act that might better be addresed by the UCMJ?
February 1, 2010, 9:45 amStones Cry Out - If they keep silent… » Things Heard: e103v1 says:
[...] that show trial and Mr Holder’s due [...]
February 1, 2010, 9:56 amMonday Highlights | Pseudo-Polymath says:
[...] that show trial and Mr Holder’s due [...]
February 1, 2010, 9:57 amRufusLeeKing says:
I assume a defense a President would make to a UCMJ based impeachment would cite the Seperation of Powers doctrine and the custom of prosecutorial discretion in how to go after a miscreant. But could not the Senate assert its constitutional basis to regulate the military and thereby deem a failure to act militarily against a Congressionally authorized military enemy as a failure of duty?
The Authorization to Use Force (2001) says “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html
Is the determination of what is “necessary and appropriate force” (i.e. military tribunals and detention) left exclusively for the President or is it also for Congress to judge?
February 1, 2010, 10:12 am