Will the Country Go BANANAs Over Terrorism Trials?

By Mike Dorf

Taken to its logical extreme, the NIMBY phenomenon--"not in my back yard"--leads to BANANA--"build absolutely nothing anywhere near anyone," because if some site is undesirable in X's backyard, it will often be undesirable in Y's backyard.  This phenomenon is now at work in the Obama Administration's apparent reversal of its initial decision to try Khalid Shaikh Mohammed and four accomplices in federal district court in Manhattan. In this post I want to underscore the path-dependence of how we got here.

According to published accounts, the volte-face by Mayor Michael Bloomberg and other NYC officials on a civilian court trial was the product of renewed terrorism jitters arising out of the foiled Christmas Day airline bombing and the revelation that the NYPD's plan to secure the KSM+4 trial would be inordinately expensive and disruptive of traffic (and thus business) in lower Manhattan.  Neither of these obstacles would be as serious in just about any other federal district court.

True, the whole country is jittery about terrorism, but given past events, including the first WTC bombing, 9/11, and various foiled plots, NYC is a special case.  Moreover, the congestion and disruption from the security plan for lower Manhattan are likely substantially higher than the impact in any other American city with a federal courthouse.  Thus, the factors that led NYC officials to reject hosting the KSM+4 trial would not necessarily lead to the same conclusion anywhere else.   Had the Administration planned trials somewhere else in the first instance, that other locale might have been willing to accept the costs (especially if compensated by the federal government.)  However, now that NYC has said NIMBY to the trial, it would be politically suicidal for elected officials elsewhere to say "bring it on."

Widening our frame even further, it's worth asking why the Bush Administration chose to hold detainees at Gitmo in the first place.  A big piece of the answer was the Administration's calculation that by doing so, it could avoid having to answer to courts about the legal and factual basis for detention in any particular case.  That hope proved illusory after the Supreme Court held that even Gitmo detainees have a right to federal court access (where the alternative is not equivalent to habeas corpus), but in the meantime, the Bush Administration had planted a different meme in the public mind: That the Gitmo detainees are so dangerous--the "worst of the worst"--that even housing them in a supermax prison on US soil would be to risk escape or terrorist attack from their comrades in arms.

Never mind that this was never the basis for holding the detainees at Gitmo or the fact that the civilian federal courts have successfully handled terrorism prosecutions before.  The sequence of events--hold them at Gitmo; then transfer them to NYC; then give up on NYC--has effectively convinced large numbers of Americans and their elected representatives that the security and logistical issues presented by a criminal trial in a federal district court are so great as to rule it out anywhere on U.S. soil.

It may not be fully rational, but the BANANA logic from this sequence translates into TANTSANA--Try Absolutely No Terrorist Suspect Anywhere Near Anyone.