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An Offshore Trial Everyone Could Agree On

On November 13, 2009, Eric Holder’s Justice Department announced that the United States would try 9/11 mastermind Khalid Shaikh Mohammed in federal court at a location in Lower Manhattan, literally blocks from where the twin towers once stood. The Justice Department’s pronouncement immediately incited negative reactions from many conservatives and generally positive reactions from most progressives. Former New York City Mayor Rudolph Giuliani, for example, stated that trying terror suspects in New York federal court rather than by military commission in Guantanamo Bay was “absolutely the wrong decision.” On the other hand, Vermont Senator Patrick Leahy, chairman of the Senate Judiciary Committee, stated that he has “…full confidence in the capacity of New York” to try suspected terrorists in civilian court. After all, since the September 11th attacks nearly 200 instances of terrorism have been prosecuted in civilian courts, three terror-related trials are presently taking place in or around New York City, and all of these cases have a 91% conviction rate. Perhaps the solution to the apparent ideological impasse is to try suspected terrorists such as Khalid Shaikh Mohammed neither in Guantanamo nor in New York City – but on Governors Island.

Governors Island is a 172-acre island located approximately one-half mile from Lower Manhattan in the East River and is only accessible by water or by air. The island was sold by the federal government to New York in 2003 and has been used variously as a military installation, prison, and stockade for over 200 years. Because it is isolated geographically and rich in military history, some have advocated that Governors Island is the ideal location to conduct high-profile terror trials. The Executive Committee of Community Board 1, whose jurisdiction includes not only Governors Island but also the previous location of the World Trade Center twin towers, recently passed a unanimous resolution urging the Justice Department to consider the possibility of relocating the trials to the island. Julie Menin, the chairwoman of Community Board 1, has pointed out that holding the trials in Lower Manhattan as opposed to Governors Island would require approximately $200 million per year for security alone, and would disrupt countless lives of those living or working in or around the area. “The advantage of Governor’s [sic] Island is jurisdictionally, it falls in the Southern District of New York,” Menin also stated. Governors Island also retains a symbolic advantage over other locations that have been proposed such as Guantanamo since it is located in New York where the 9/11 attacks occurred and lies in the shadow of the Statue of Liberty.

Although Governors Island has been portrayed by some as the ideal location for high-profile terror trials, a number of legitimate reservations and outright objections have been raised. New York City Police Commissioner Raymond Kelly was recently assigned the task of studying the feasibility of staging such trials on Governors Island and concluded that a change in venue could cause serious problems. No prison facility currently exists on the island, the facilities that do exist on the island have been poorly maintained and would require serious maintenance work, and a high school is scheduled to open on the island later in 2010. The financial and other resources required to restore the island’s infrastructure to trial-level capacity would require at least two years of work. The initial review by the New York Police Department also indicated that risks existed involving the transportation of prisoners to and from the island. Because of these and other reasons, New York City Mayor Michael Bloomberg has stated that the proposal to move the trials the Governors Island is “one of the dumber ideas” he has ever heard. In addition, Bloomberg and Kelly have stated that Lower Manhattan would be prepared to handle the high-profile trials that will likely take several years and millions of dollars to complete.

Recent events and statements indicate that the terror-trials of Khalid Sheikh Mohammed and others will likely proceed in Lower Manhattan. Although this result seems more than certain at this point, it is notable that Governors Island has received significant attention from the public, government officials, and to a lesser degree, the media. Governors Island could perhaps represent a tangible compromise between those that would like to see the trials take place in New York, symbolically near ground zero, and those who would enjoy keeping suspected terrorist on an island off the coast of a major U.S. state (also a largely symbolic position). What’s clear to both sides of the ideological divide is that the imminent terror trials must be symbolic – the United States must be able to deliver the hammer of justice to the perpetrators of terror while also maintaining the basic standards of integrity, fairness, and equality that have suffered since at least the beginning of the previous administration. Governors Island can certainly represent the opportunities of compromise and transformation, but only the will of Eric Holder and the direction of Justice Department can change this.


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