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Terror Trials: New York's Experienced Prosecutors Will Play Key Role

Wednesday, February 17, 2010

When Attorney General Eric Holder announced last November that he planned on trying the 9/11 defendants in New York City, the Obama Administration acted like it was a done deal. Until residents in Lower Manhattan –- like Jan Lee -– began pushing back. "Terrorists pose huge threats, not only to this neighborhood, but to the entirety of Lower Manhattan," Lee says.

It’s still up in the air where the trials will be. But for decades, prosecutors have already been trying some of the highest-profile terrorists in history, in this downtown neighborhood.

There are lots of reasons to have the trials here. This is where the World Trade Center fell. This is where some of the tightest courthouse security exists. And this is where the prosecutors with the most experience in terrorism cases are based.


A timeline of high-profile terrorism cases prosecuted in New York.

For the last 25 years, Ron Kuby has defended hundreds of accused terrorists here in Manhattan. Pending right now in the Southern District of New York is a list of terrorism cases from around the world: Afghanistan, Pakistan, Colombia, North Africa. Kuby says terrorism trials are brought here because these prosecutors have an expertise few other U.S. Attorney’s Offices can hope to replicate.

"This is where the institutional expertise exists," Kuby says. "The courts have worked with these issues and worked through these issues over a period of years and years, decades. Prosecutors have, literally now, two generations worth of experience in trying these cases."

And because of that deep expertise, legal experts say even if the Attorney General decides to hold the 9/11 trials outside New York, federal prosecutors in Manhattan will be asked to help lead those trials.

It’s happened before. John Walker Lindh and Zacarias Moussaoui were prosecuted in the Eastern District of Virginia, and prosecutors here were sent there to help get the job done. It’s a story about expertise that goes back some 30 years –- before a network called al Qaeda existed. John Martin was the U.S. Attorney then.

"There were occasional, small organizations engaged in terrorist acts," he says. "But it was not the highly organized, multi-national type of terrorist organization that you have today."

In the early '80s, Martin says his office took on terrorists a lot of people today can hardly remember -- like Omega 7, the Miami-based, anti-Castro group that assassinated a Cuban diplomat. They also prosecuted the FALN, a group seeking Puerto Rican independence that exploded a series of bombs in New York City. And they tried Croatian radicals who were protesting the Yugoslavian government by sending letter bombs and murdering a Serbian soccer coach. Martin says he gets why the federal government initially chose to have the 9/11 trials here. Frankly, he says, this is where the smartest, most capable prosecutors are.

"The Southern District, for 60 years, has been known for the quality of the people it attracts and the quality of its staff, so you really have a high-quality group of very experienced prosecutors who are available to handle this type of case," he says.

Martin smiles and admits, sure, he might be biased, but the federal government will naturally go for the best attorneys it has. It can’t afford a single mistake on this one. He says his office’s reputation for excellence was cemented in 1993, after a bomb exploded under the World Trade Center.

Federal prosecutors in Manhattan prosecuted Ramzi Yousef and five other defendants for the attack, and each was sentenced to life. Then the office went after Sheikh Omar Abdel Rahman -– the "Blind Sheikh." He also got life in prison after trying to blow up not only the World Trade Center, but also the United Nations headquarters and other city landmarks.

Mary Jo White, the U.S. Attorney at the time, determined that this was not going to be an isolated incident. So, in 1995, White appointed David Kelley to lead the first Terrorism Unit in any U.S. Attorney’s Office in the country. They outlined a strategy.

"We needed to have greater coordination, we needed to have a bank of people who could handle these cases and supervise the investigation," Kelley recalls.

Kelley describes the early days as "trial by fire." They had to deal with challenges on a scale never seen before by other prosecutors, like how to handle volumes of classified government information; how to cultivate relationships with foreign governments; and how to get evidence overseas admissible in a U.S. courtroom.

Kelley remembers taking a trip to downtown Nairobi in 1998, after two U.S. embassies were bombed in Africa.

"The local police say, 'Let’s go knock down some doors and get some suspects,' and we say, 'Well, wait a sec. That’s not how we do things,'" he explains. The challenge, he says, is how to conducting searches in a foreign country that will pass constitutional muster back home.

Then came September 11.

"After each case, we thought, well, there would never be a case that big. And sadly, we were very wrong. We would never have envisioned back then that we would be where we are today," he says.

Kelley, who became the U.S. Attorney in 2003, says the focus of the Terrorism Unit changed forever after 9/11. Instead of showing up after a crime happened, the office tried to disrupt terrorism networks before they could act. They zeroed in on immigration fraud, suspicious money transfers ,and potential terrorists. Kelley says they saved countless lives, but that work is invisible -– until you make one mistake.

"If you’re a baseball player and you hit a .325 batting average for your career, you’re going to the Hall of Fame," Kelley says. "And in fighting terrorism, if you bat anything less than a thousand, you’re horrible."

Columbia Law Professor Dan Richman says that’s true. Having a great batting average will only take you so far in the 9/11 trials. He says the trial of Khalid Sheikh Mohammed will be unprecedented in scope and in complexity. Federal prosecutors will have to deal with new legal issues no one’s really tackled before, such as the issue of "torture taint."

"There will be issues about whether the government’s whole case has been tainted by the fact that statements were obtained from him under what some will call 'enhanced interrogation' and others will call 'torture,'" Richman says.

He says it’s still anyone’s guess which federal prosecutors will ultimately take the lead in prosecuting the 9/11 defendants. And Congress might still pass legislation requiring a military tribunal to try these individuals. But here’s a track record to ponder: Since 9/11, only three terror convictions have come out of military commissions. In the same period, federal prosecutors in civilian courts across the country have won 195 convictions. And the place with the most convictions? The Southern District of New York.

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