Former AG Michael Mukasey has this op-ed in the WaPo responding to the Sullivan-Freeh proposal to form a US District Court in Guantanamo Bay for the trial of terrorists. The trial judge of the 1995 embassy bomber case still believes that military commissions are the way to go.
Among other problems, Mr. Mukasey cites the Sixth Amendment requirement of "an impartial jury of the state and district wherein the crime shall have been committed...," which he interprets as requiring juries from the districts where the planes crashed. I'm not sure that is a big problem, given that much of the crime -- and all of the defendants' acts in the crime -- occurred overseas. The law has long provided for foreign-committed crimes to be tried in stateside districts with domestic juries, and multijurisdictional crimes can be tried in any of the several venues. The venue for a foreign-committed crime is the district where the defendant is first brought after his capture, which would indeed be Gitmo if Gitmo were a district. But it's not.
A potentially thornier problem is the next phrase, "... which district shall have been previously ascertained by law." That seems to me to be a flat prohibition on creating a new district or expanding an existing one ex post facto to try a case in an Article III court with a jury from a district that didn't exist before.
So if we can't draw the jury from Gitmo itself, and if we can't fly the jurors down from New York, for the reasons Mr. Mukasey discusses, what is left? How about a technological fix? Have the jurors in New York with a big television screen watching the trial being conducted in Gitmo. Or maybe we could have multiple television screens. Have the jurors in a courtroom and put a screen where each of the players would be sitting -- one for the judge, one for the witness, one at each counsel table -- and have a dedicated camera for each screen.
Among other problems, Mr. Mukasey cites the Sixth Amendment requirement of "an impartial jury of the state and district wherein the crime shall have been committed...," which he interprets as requiring juries from the districts where the planes crashed. I'm not sure that is a big problem, given that much of the crime -- and all of the defendants' acts in the crime -- occurred overseas. The law has long provided for foreign-committed crimes to be tried in stateside districts with domestic juries, and multijurisdictional crimes can be tried in any of the several venues. The venue for a foreign-committed crime is the district where the defendant is first brought after his capture, which would indeed be Gitmo if Gitmo were a district. But it's not.
A potentially thornier problem is the next phrase, "... which district shall have been previously ascertained by law." That seems to me to be a flat prohibition on creating a new district or expanding an existing one ex post facto to try a case in an Article III court with a jury from a district that didn't exist before.
So if we can't draw the jury from Gitmo itself, and if we can't fly the jurors down from New York, for the reasons Mr. Mukasey discusses, what is left? How about a technological fix? Have the jurors in New York with a big television screen watching the trial being conducted in Gitmo. Or maybe we could have multiple television screens. Have the jurors in a courtroom and put a screen where each of the players would be sitting -- one for the judge, one for the witness, one at each counsel table -- and have a dedicated camera for each screen.
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