WASHINGTON (CN) – Under intense questioning by Republicans on the Senate Judiciary Committee, Attorney General Eric Holder on Wednesday condemned Khalid Sheikh Mohammed – who allegedly has admitted being the September 11 mastermind – as a “terrorist” and a “murderer” while defending his decision to try him in Federal Court in New York. Holder said that if Mohammed is acquitted, the Justice Department can ensure that he is not released in the United States.
“I’m not going to let the whims of a terrorist, a murderer, decide where this gets tried,” Holder said during a fiery hearing in responding to a question about Mohammed. Holder had said that the chances of Mohammad’s conviction would be “enhanced” in a federal court.
He was answering a question posed by Arizona Republican Sen. Jon Kyl, who won applause from the audience when he asked, “How could you be more likely to get a conviction in a civilian court than in a military court when Khalid Sheik Mohammad has already pled guilty and asked for the death penalty before a military commission?”
Holder addressed what he called “extreme hypotheticals” by Republicans that Mohammed might be found not guilty by a civilian court and released. “We have the capacity to make sure that Khalid Sheikh Mohammed is not released into the Unite States,” Holder said assuredly, and added, “There are other legal things that we could do with him.”
Texas Republican Sen. John Cornyn, who was apparently ill, noted in a scratchy voice that the United States cannot hold people indefinitely.
“You can certainly hold people in matters pending,” Holder corrected.
But he expressed enormous confidence that detainees would be convicted, and said critics of his decision have not seen all the information he has seen. When speaking to the mom of a September 11 victim after the hearing, he told her to trust him.
Republican senators argued against Holder’s decision, saying that it would make New York an even more tempting target and that it could give the detainees a handful of burdensome new rights, concluding that the accused September 11 perpetrators should be tried as war criminals.
Democrats argued that the federal court system is reliable, pointed to the shortfalls of the alternative military commissions, and dismissed accusations that the decision strikes out in a new direction, noting that suspected terrorists have already been tried in federal courts.
“We have a justice system that is the envy of the world,” Vermont Democratic Chair Patrick Leahy said, noting that the federal courts have already handled more than 100 terrorism cases since the September 11 attacks. “We can rely on the American justice system,” he said.
Leahy also addressed calls by Republicans to hold the trials somewhere else out of concern that New York trials would highlight the city as a terrorist target. “New York was one of the primary targets of the September 11 attacks,” he said. “Those who perpetrated the attacks should be tried there.”
In a long and stinging criticism of the Justice Department’s decision to try September 11 suspects in civilian courts, Alabama Ranking Member Jeff Sessions called it a political decision and said, “I think these policies signal that for the United States, fighting terrorism is not the priority that it once was.”
Sessions argued that the attacks were acts of war, urging that the alleged perpetrators be tried in military courts. “Mohammad is a terrorist,” Sessions said before correcting himself, “is alleged to be a terrorist.” He said Mohammad should not be tried as a common criminal, and that, “The United States court system was not designed to handle unlawful enemy combatants.”
“There was not a political component to my decision,” Holder said in defense.
He said suspects in the September 11 attacks could be tried in either federal courts or military commissions because it was both an act of war and it violated federal criminal law, but that the chances of conviction are “enhanced” in a civilian court.
Wisconsin Democrat Sen. Herb Kohl noted that nothing is certain in a federal court and asked what would happen if the suspects are found not guilty and allowed to walk free. “Failure is not an option,” Holder said, noting that the evidence is strong.
Iowa Republican Sen. Chuck Grassley appeared skeptical. “I don’t know how you can say failure is not an option,” he said, pointing to the renowned O.J. Simpson trial, where Simpson was found not guilt of killing his wife and her friend. Many observors of the trial remain highly skeptical of that outcome.
Sen. Lindsay Graham called Holder’s decision a “perversion” of the justice system. He said that handling terrorism suspects in civilian courts would entitle detainees to burdensome rights, like the right to silence and the right to a lawyer. As an example, Graham said that if a soldier did not read the suspect his Miranda rights during capture, the detainee might be able to get any incriminating statements suppressed.
Cornyn asked if the detainees would have a right to claim asylum once they arrive in the United States. Holder replied that he is not an immigration expert and that he could not answer the question.
California Democratic Sen. Dianne Feinstein expressed her support of the decision. “I’ve watched the failure of the military commissions for the last seven years,” she said. And Rhode Island Sen. Sheldon Whitehouse noted that only three convictions had resulted since the Obama administration reformed the heavily tarnished commissions.
But Holder upheld the fairness of military commissions and has also sent five detainees to be tried before the commissions.
On the same day, Obama announced that the government would not be able to meet its deadline to close Guantanamo Bay Prison by mid-January, as his administration had planned, and Holder said the biggest problem in closing the facility is moving the detainees elsewhere.
One member of the audience carried a sign reading, “Rule of Law.”