Citing anonymous sources, The New York Daily News told us Tuesday morning that federal officials are thinking about bringing to New York for trial alleged 9/11 mastermind Khalid Sheik Mohammed. The concept is a good one -- our federal courts are perfectly capable of prosecuting terror suspects like Mohammed -- but the purported choice of venue is weak. The trial of the century for the most important Al Qaeda member ever captured ought to take place in Virginia or Pennsylvania, not New York, for a number of very good reasons.
Bringing Mohammed to trial in New York in a capital case certainly has historical, political and narrative appeal -- it would take place just blocks from where the World Trade Center once stood. But locating a death penalty case in downtown Manhattan would immediately give Mohammed's lawyers a trenchant argument to change venue because of the possibility of an unfair trial due to pretrial publicity. If Timothy McVeigh couldn't be assured a fair trial in Oklahoma City before the age of the Internet how in the world could Mohammed be tried fairly today in New York City, which bore the brunt of the 9/11 attacks?
Bringing Mohammed to trial in the Eastern District of Virginia—Alexandria, to be exact—or to the Western District of Pennsylvania—Shanksville, to be exact—would also create live change-of-venue arguments for his lawyers. Northern Virginia was the scene of the crash of Flight 77 into the Pentagon. Somerset County saw the demise of Flight 93. But those arguments wouldn't be nearly as strong as the change-of-venue motion filed in New York. The media in those other places does not remotely saturate the market or drive public conversation the way the media does in Manhattan. So why not start the trial where it is likely to end up? Why not preclude a strong venue challenge?
Virginia already has hosted a major trial involving a 9/11 conspirator—Zacarias Moussaoui was sentenced to life there. Pennsylvania has not—but when you think about it neither has New York City. You can't compare what a Mohammed trial would look like with the 1996-97 trial of Ramzi Yousef, the first World Trade Center bomber, who was convicted in the Foley Square Courthouse in the Southern District of New York. The Mohammed trial would be an order of magnitude bigger. Is the symbolism of having the biggest Al Qaeda trial take place at the scene of the biggest crime worth the risk of a post-conviction reversal or, more likely, a pre-trial delay? Is this really what New Yorkers want?
Security and convenience also ought to play a role in the coming venue decision. Yes, it is relatively safe to try Mohammed in the heart of New York City. But wouldn't it be safer, and less of a hassle for everyone else involved, if the trial were held in a less concentrated metro area? If the site of the trial is going to become a symbol in the war on terrorism aren't we better off having that symbol reside away from our most densely populated city? If, as Congress has indicated, it's not a good idea to bring low-level terror suspects to trial in rural areas like Fort Leavenworth, Kansas why is it a good idea to bring a highly symbolic terror defendant to trial near a thousand commuter trains, a dozen crucial bridges and tunnels, and three major airports?
Judges also consider the placement of evidence and the location of witnesses when determining venue motions. This is a wash. The Mohammed trial will be a national trial no matter where it will be held and witnesses from all over the world will be subpoenaed to attend. Will it matter if New Yorkers are forced to go to Virginia or Pennsylvania as opposed to Virginians being forced to go to New York? I don't think so. Besides, it's not as thought the distances between the three likely venues are so great or burdensome. It's closer from New York to Shanksville, for example, than it is from Oklahoma City to Denver, which is where McVeigh's trial ended up. And closed-circuit television remotes can easily link survivors and the family members of victims to the proceeding no matter where it is.
Because of the enormity of the crime on 9/11, because of the geographical range of the assault, the Justice Department and White House have these varied options should they decide to bring Mohammed to trial in the United States. "Forum shopping" of this sort is always a part of litigation, in criminal or civil cases alike, and here the decision the feds make will have enormous practical ramifications, not just for the defendant and the victims but for perhaps tens of millions of other people who will be directly affected by it.
After six years of unconscionable delay, the government will get only one chance to get the Mohammed trial right. Making sure the proceeding occurs in a sensible place would be a good place to start.
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.