Government retreating on civilian trial for accused terrorist

Monday, February 1, 2010

THE OBAMA administration did not consult with New York Mayor Michael Bloomberg on security matters before making the decision to prosecute Sept. 11 mastermind Khalid Sheik Mohammed in a Manhattan courthouse. Instead, Attorney General Eric H. Holder Jr. simply gave Mr. Bloomberg a courtesy call on the morning of Nov. 13, just hours before announcing the decision.

The failure to solicit input from the Bloomberg administration is inexcusable. Federal prosecutors normally do not -- and are not required to -- consult with local jurisdictions before filing charges. But this is not a typical case, and New York is not a typical venue.

The breach of common sense also goes a long way toward explaining why Mr. Bloomberg changed his mind about the wisdom of holding a trial in Manhattan after his administration conducted its own review and crafted a security plan. According to the mayor's estimates, security for the trial could cost the city upward of $200 million a year and would significantly disrupt businesses and residents in and near Lower Manhattan, where the federal courthouse is located. While it is customary for the federal government to pick up at least part of the additional cost, the Obama administration had not formally guaranteed that it would; some within the administration questioned what they saw as inflated cost estimates.

In public comments last week, Mr. Bloomberg urged the administration to drop its plans for a prosecution in New York City, as did roughly a dozen members of Congress, including Dianne Feinstein (D-Calif.), chairman of the Senate Intelligence Committee. In response, the Justice Department leaked word Friday that it had abandoned the plan and is looking for an alternative site; White House adviser David Axelrod said on Sunday that "we need to take into consideration what the local authorities are saying."

The administration is right to take the mayor's concerns seriously. Where Mr. Mohammed is tried is not as important as that he be tried in a legitimate forum operating under clear and fair rules. The administration could have prosecuted these defendants in a military commission, which, because of new rules adopted last year, provides many of the same protections and procedures as do traditional federal proceedings. But a federal court trial, if that is possible, is a better choice that offers greater legitimacy. That is why Congress should reject legislation expected to be proposed by Sen. Lindsey O. Graham (R-S.C.) that would make a federal trial of Mr. Mohammed impossible.

The Justice Department made a judgment call that it had enough solid evidence to win a conviction in federal court. We have, for now, no reason to question that decision. It would have been ideal for the court to have been in Manhattan, site of the death and destruction that Mr. Mohammed and his cohorts are accused of plotting. But it is not necessary.

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