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Why New York’s the right place to try Sept. 11 cases—A Commentary by Eugene R. Fidell

The following commentary was posted on Politico.com on March 15, 2010.

Why New York’s the right place to try Sept. 11 cases
By Eugene R. Fidell

Not since the Watergate-era Saturday Night Massacre has so much controversy engulfed the Department of Justice. Three roiling issues surround Attorney General Eric Holder and his department.

Each looks like an opportunity to score political points. But they are linked and, taken together, threaten the balance between the civil and military spheres that the country needs in the administration of justice and the fight against terrorism.

The issues could also do lasting damage to a department whose probity and morale are integral to good government in general and national security in particular. It’s critical that the administration get out in front here — and stay there.

First, former Vice President Dick Cheney’s daughter Liz Cheney stirred up a McCarthy-style campaign against the handful of talented department attorneys who previously worked, directly or indirectly, on behalf of Guantanamo detainees.

This has already survived more news cycles than most people would have expected. It may be because many former GOP officeholders flooded the airwaves and blogosphere with suggestions that she take a hike. But it may also have to do with the disclosure that when Holder was nominated for his job, he neglected to mention that he had signed friend-of-the-court briefs in the case of accused terrorist Jose Padilla.

Second, the controversy over the department’s ethics investigation of the work of John Yoo and Jay Bybee on the so-called torture memos shows little sign of abating. Were the authors ethically challenged, or was their work simply below par?

It depends on whether you ask the department’s Office of Professional Responsibility or the front office. Some observers think state bar action is warranted. A more constructive approach would be to establish an independent commission to begin the process of holding those responsible for torture to account.

The third controversial issue — where to try Khalid Sheikh Mohammed and others accused of terrorism — is also up in the air. It shouldn’t be.

Originally, he and other “high-value detainees” were slated for trial before military commissions. Last year, following through on President Barack Obama’s campaign promises, the Justice Department worked with the Defense Department to review all potential military commission cases. They announced broad criteria designating which detainees should be tried before a commission and which in federal district court.

At first it looked like KSM would be tried in the Southern District of New York, site of the World Trade Center attacks. Mayor Michael Bloomberg supported it.

Until, that is, Wall Street and Lower Manhattan activists gained traction arguing against it. Things got out of hand once the New York Police Department came up with an $800 million price tag for security. Preposterous — unless it includes building new subway stops.

When the wind shifted, the mayor jumped ship. Rumors — fed by leaks from the White House — started to swirl. Perhaps a Foley Square trial was not a done deal, and the case might wind up back at Guantanamo.

There is also talk of trying Umar Farouk Abdulmutallab, the alleged underwear bomber, in a military commission.

Trying KSM, Abdulmutallab or the others in military commissions is a terrible idea. Here’s why:

We’ve prosecuted numerous terrorism cases in the federal courts, and the Justice Department has a solid record of success in obtaining convictions and lengthy jail terms.

People around the world see nothing to admire in the military commissions that President George W. Bush revived, after a 50-year hiatus, in the aftermath of Sept. 11.

The federal courts are perfectly capable of handling classified information.

The Constitution permits interrogations without Miranda warnings in emergencies, under the “public safety exception” the Supreme Court announced in 1984 in New York v. Quarles.

New York is the right place to try Sept. 11 cases. We can do it there safely and at reasonable cost. Why hide this trial in a Cheney-esque “secure location” on some military base? We need to show that when it comes to the administration of justice, America remains a free country with a functioning, self-confident civilian government.

If the government shifts gears yet again — as it did with Padilla and Ali al-Marri — and puts Abdulmutallab before a military commission, that will signal to the world that we are irresolute when it comes to our core values. Why do that?

The attorney general should stick with the decision he made and scotch, once and for all, the notion of sending Abdulmutallab’s case to a commission. Federal court is where such cases belong.

The administration has to pick a policy (many thought it had), stick with it and defend it aggressively. Throwing the engines into reverse only emboldens those who want to wrestle the Justice Department — and the administration — into a defensive crouch.

The one sure way to foster public confidence in the administration of justice is to build public confidence in the administration of Justice.

Eugene R. Fidell teaches at Yale Law School and is president of the National Institute of Military Justice.