By Brad Gerstman
Our US Attorney General Eric Holder recently announced that terrorist prisoners being held in Guantanamo Bay, Cuba, will be tried in the Southern District of New York. The trials will be around the corner from Ground Zero, which is very symbolic in many ways.
That being said, I have two questions to ask. The first is why hold the trial in NYC? My second question, is why are these Guantanamo Bay detainees being tried in Federal District Court instead of Military Tribunals?
Taking a step back for a moment and looking at the general state of New York, one would come to the conclusion that holding these trials in NYC may not be the best idea. We have a floundering economy, New York City and the Federal Government have budget problems and NYC is the biggest American target for future terrorist attacks. Despite these facts, the Obama administration thinks that New York is the best forum for these trials. However, one must wonder whether the Obama administration thought about the cost to New York for the additional security that will be required to have the trials here? Not only will there be security issues but think about the traffic and disruption this will cause in the lives of NYC citizens who are simply trying to live their day to day lives and take care of their families. New Yorkers who live and work near where terrorists will be held and tried face additional risks of an attack. Think about the fear each of us New Yorkers felt going over our bridges, riding our subways and trains after September 11th. Does the Obama administration appreciate the fact that those fears will resurface as a result of holding these trials in New York?
If the abovementioned doesn’t make logical sense as to why we shouldn’t have the trials in New York, let’s look at it from a legal standpoint. These Guantanamo Bay detainees, these terrorist, are true enemy combatants and therefore are subject to military tribunal trials. Those who commit war crimes are arrested in environments that are very different from everyday domestic crimes. Since this is the case, rules of evidence in these military tribunals aren’t the same as in our Federal District Courts. Moreover, the rules of discovery in the Federal Courts will likely cause many dilemmas in terms of military secrets and classified information, which again puts American lives at risk. Which begs the question, why place a square peg in a round hole? This situation doesn’t make sense from a legal standpoint and I don’t understand how it makes sense to the Obama administration from any standpoint.
Those who would argue that holding the trials in New York is appropriate because all Americans are tried in the same manner, with a judge and jury, wouldn’t be completely wrong. However, even though this may appear to be the most honest and fair-minded approach, these are crimes that were committed during war. We are offering far too many protection to terrorists that are trying to kill us and our very way of life that offers such protections. To make matters worse, we are doing it in our backyard. The questions is, why us?
Brad Gerstman is a partner at Gotham Government Relations