New York Civic: Trial of the Century By Henry J. Stern

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Stern_HenryJ Will It Displace OJ, Loeb, Scopes?

No, They Were the 20th Century. Why in NYC? Scene of the Crime.

Seventeen days have passed since Mayor Bloomberg’s re-election, and the tide of change have yet to rise. The agencies have been asked by OMB to reduce their budgets; we await their responses, due in December.

There have been mayoral press releases, indicating worthwhile initiatives now under way. You can link to them here. There have been few agency press releases. In this administration, there is only one message, and it comes from the top. In that regard, it is similar to the second term of the Giuliani administration, which was different from the first.  With the passage of time, authority tends to centralize unless it dissipates, which is worse.  The goal should be to maintain balance.

President Obama, like other chiefs, prefers to palm off unpopular announcements to deputies. An example of this is the decision to try Khalid Sheik Mohammed before a civilian court in New York City. The President has already spoken inappropriately by declaring the terrorists guilty and saying that they should receive the ultimate penalty (i.e. execution). Although what he said is clearly true, it departs from the presumption of innocence with which we favor defendants before they are convicted, even though we know they are guilty. The defendant’s lawyers will use that as one ground for appeal. How, they will argue, can their clients receive a fair trial when the chief of state himself has, in advance, found them guilty and called for their termination with extreme prejudice?

There will be enough motions and appeals in this case to keep the courts occupied for years. It may be as difficult to inject KSM (as he is now called in the media) as it has proven to capture OBL. And if there is one wacko or peacenik on the jury, no one will be able to foresee the outcome of the trial. Will we have to go through all of it again?

It is clear to us that there is a war on, America is under attack, and the terrorists are warriors who want to destroy us. When people act as mass murderers, they exceed the limits of tolerance for soldiers captured on the field of combat. If they are caught (possibly by the CIA or other clandestine forces using means inappropriate to conventional pursuit of criminals) they deserve eventual but not immediate martyrdom. There must be some punishment that would be more painful and distressing to them than instant teleportation to the domicile of the 72 virgins whose pleasures have been promised to the faithful soldiers of Allah, as Major Nasan proudly described himself on his business card.

After World War II, the victorious nations established an international military tribunal at Nuremberg, before which a score of Nazi leaders were tried. Twelve were sentenced to death, seven to prison terms, and three were acquitted. The chief prosecutor for the United States was Justice Robert H. Jackson, who stepped down temporarily from the Supreme Court for the trial. Britain, France and the Soviet Union participated in the trial.

The argument is made that giving terrorists all the rights of civilian defendants shows how great this country is. Yet five terrorists who attacked the U.S.S. Cole in Yemen in the year 2000, killing 17 sailors in a bomb attack, are to be tried by a military tribunal. It seems to us that, in deciding on civilian or military tribunals, the Obama administration decided to split the difference, sending five men to be tried each way. This might also be the way the issue of increasing troop levels in Afghanistan may be resolved. Although it is not the same as cutting the baby in half, it does demonstrate no particular conviction for either side of the argument, a sentiment that to some extent may be justified, but is highly unlikely to bring about a resolution of the problem.

Having the trial in New York City is no danger to its inhabitants, despite people’s fears. The terrorists will not be able to escape and certainly cannot kidnap anyone’s children, as an Arizona Congressman foolishly suggested. The extra money the city will get for security will be a juicy plum which will be squeezed for its rich nectar. That is what happens to many federal programs and grants: they are targets for elected officials, including a handful of poverty pimps, who desire to spend the funds for political or personal advancement or gratification. Everybody wants a slice of the pie.

The last job Attorney General Holder was supposed to do on his own was the Marc Rich pardon, in the dying days of the Clinton administration, where he served as deputy attorney general. He admitted to Congress during his confirmation hearings that he messed that up, but was loyal enough not to say that he was acting under orders, which he clearly was.

This demonstration of loyalty must have pleased President Obama, who knows that the first thing one wants in a lawyer is someone who will act in your interest, particularly when the fact situation is murky. The Attorney General is supposed to serve the public interest, which is why President Kennedy appointed his brother, someone he knew was quite able.

If the trial must be held in New York, one should find the most suitable place, not necessarily a cramped courthouse. What about the site of the former World Center, which has not yet been developed? Put in a bench, chairs and a table, replicating a 19th century Western court house. The gallows should be separated from the courtroom, but not by much. The backdrop, behind the witness stand, should be the shards of metal which were the last remaining intact portion of one of the towers.

Another suggestion made by a reader is Governors’ Island, where there is plenty of open space and an excellent view of the Statue of Liberty. There are also old dungeons on the island which could be put to use. The surrounding waters would make escape very difficult, as we have learned from Alcatraz.

It is reported in Justice Department memos that Khalid Sheik Mohammed has been waterboarded 183 times. If that is true, he knows it is not a fatal experience, although assuredly an unpleasant one. In 17th century Massachusetts, alleged witches were tied to a chair and dunked underwater. If they died, it was presumed that God had accepted their souls, and they were innocent of witchcraft. If they did not drown, it was assumed that God had rejected  their souls because they were witches, and they were burned at the stake. This happened in America, but it was not a penalty inflicted by native Americans.

The trial of the terrorists will be a diversion of some sort for New Yorkers who would otherwise be preoccupied by the fiscal crisis which has been called impending so long that people wonder whether and when it will pend. The governor says the state will run out of money in December, but that would adversely affect holiday shopping, so we predict that the cash crunch will come no earlier than January. The governor has more authority to cut costs than he has yet exercised. He is trying to involve the State Legislature in the bad news, but they will beg off at the insistence of their paymasters.

Public officials are inclined to be optimistic about the budget and the future, just as sports managers predict victory for their teams. Even most journalists would like to see the city come out solvent, it would help their employers’ balance sheets and, after all, money can trickle down. But reporters also have an obligation to tell it as it is, unlike the Bear Stearns managers who were prosecuted for excessive optimism (taking their clients out of safe securities and putting them in junk), and acquitted by a jury despite an E-mail trail in which they, to put it politely, expressed their skepticism as to the reliability of the securities they were peddling to the widows and orphans who trusted them.

As the fiscal situation winds down (or up, they mean roughly the same), we call upon our public officials to get real
. We believe they will when they have to, and when they can convince their constituents and the lobbyists that they had no choice. (Rule 18-X-6: The Devil made me do it. Should devil be capitalized? English teachers, let us know.) 

The electeds will act when they must. The Republicans suffered enormously politically when the Federal government shut down between December 1995 and January 1996 because Speaker Newt Gingrich failed to increase the Federal debt limit. Doesn’t that sound archaic in November 2009, the debt limit wall has long been breached? The ANNUAL increase in the Federal debt now exceeds one TRILLION dollars. (In FY 2009, it was $1.42 trillion, or $1420 billion.)

Do you remember when Senator Everett McKinley Dirksen of Pekin, Illinois, was supposed to have said: 'A million here, a million there, before long it adds up to real money.' In fact, he didn’t say it, any more than Marie Antoinette uttered the phrase which history associates with her. Clever lines today are usually attributed to Yogi Berra or Woody Allen, who could not possibly have made all the remarks attributed to them even if they had nothing else to do.

BTW, a trillion is a million times a million. It looks like this: 1,000,000,000,000, not counting the cents. This is BIG.

The city is better off than the state, which in our judgment is run by people who are challenged, ethically and intellectually. The federal government has a better class of elected officials and executives. They are doing their best, but perhaps the financial problems we face are too great for them to solve alone.

We captured Wernher von Braun in 1945 to run our space program. Father of the V-2 rocket, he is the inspiration for Rule 18-X-4: 'That’s not my department.'  The full line, as written by Tom Lehrer, who is now 81 years old, is 'Once the rockets are up, who cares where they come down? That’s not my department,’ said Wernher von Braun.' That could have been said by some of our legislators. Perhaps some new talent would help.

We would not go so far as to suggest Hjalmar Horace Greeley Schacht (1877-1970) be consulted for our economic problems, but after his acquittal at the Nuremberg Trial in 1946, he founded a bank in Dusseldorf and became an economic advisor to developing countries. He was well regarded professionally. (The American editor, Horace Greeley, died in 1872 a month after losing a challenge to General Ulysses S. Grant, who won a second term.) He is best known for his words of advice: 'Go West, young man.'

A New Yorker who is an authority on finance and who was very helpful in resolving New York City’s 1975 fiscal crisis, Felix G. Rohatyn, who was managing director at Lazard Freres, wrote a thoughtful op-ed piece in today’s Daily News. It is titled AMERICA’S VERY SCARY ECONOMIC PREDICAMENT. We cannot do it justice in a summary, or by excerpting the lede. We suggest you link to the Rohatyn analysis here.

We await action by the legislature, which we do not believe is imminent. Today Crain’s warned of a reduction in the grading of city debt if the budget gap is not closed. This would increase the interest rate the city pays when it borrows. Closing the gap sooner rather than later could stave off the reduction and save millions of dollars.

 Henry J. Stern writes as StarQuest. Direct email to him at StarQuest@NYCivic.org. Peruse Mr. Stern’s writing at New York Civic.

eHeziNew York Civic: Trial of the Century By Henry J. Stern

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