Alex Wong/Getty Images
Attorney General Eric Holder testifies during a hearing before the Senate Judiciary Committee on Wednesday.
Attorney General Eric Holder testifies during a hearing before the Senate Judiciary Committee on Wednesday. Alex Wong/Getty Images
Attorney General Eric Holder on Wednesday stoutly defended his decision to try the Sept. 11 conspirators in U.S. federal court as driven by evidence, not politics.
During his appearance before the Senate Judiciary Committee, Holder as much as promised convictions of professed Sept. 11 mastermind Khalid Sheikh Mohammed and his four alleged associates.
"Failure," Holder said, "is not an option."
But that assertion — and the audience laughter it prompted from Sept. 11 victims' family members opposed to his decision — suggest that Holder and President Obama are indeed taking a political gamble by deciding to bring the suspected terrorists from Guantanamo Bay, Cuba, to New York City to stand trial.
After all, said Wisconsin Democratic Sen. Herb Kohl during his questioning of Holder, "you never know what happens when you walk into a court of law" — and hand a decision to a jury.
Lines Drawn, But Not Clear
In the five days since Holder announced that the alleged Sept. 11 conspirators would be tried in federal court instead of by military commission in Guantanamo, political forces have arrayed for and against the decision, as expected.
But the partisan dividing lines are not easily drawn.
Some high-profile Republicans, including former New York mayor and failed presidential candidate Rudolph Giuliani, have taken to the airwaves to denounce Holder. And Senate Republicans predictably roughed Holder up Wednesday, arguing that a civilian trial will give terrorists an international platform, compromise domestic safety and perhaps lead to the dissemination of classified material.
But Holder's decision has also elicited strong support from some unexpected GOP corners, and opposition from a handful of Democrats, including New York Gov. David Paterson and Virginia Sen. Jim Webb, a former secretary of the Navy.
GOP stalwarts Grover Norquist, president of Americans for Tax Reform; David Keene, chairman of the American Conservative Union; and former Georgia Republican Sen. Bob Barr signed on to a statement asserting that civilian courts "are the proper forum for terrorism cases," and that federal prisons are "fully capable of safely holding" convicted terrorists.
Civilian trials, in the city where the worst of the Sept. 11 attacks occurred, will move the country toward closing Guantanamo, they said, where military commissions have convicted just three detainees in eight years.
On the other hand, Webb has argued that military commissions are a more appropriate venue.
GOP strategist John Feehery says he would advise Republicans to "go hard after" Holder's decision to try the five Sept. 11 suspects in federal court.
"This is a perfect situation where you can make a case that they're war prisoners and not common criminals," Feehery said. "Holder is so vulnerable on this because he's very liberal."
House Republicans have introduced a discharge petition that would compel Democratic House Speaker Nancy Pelosi to allow a vote on legislation that could bar the administration from transferring or releasing Guantanamo prisoners to any state without the approval of the governor or legislature of that state. The petition on the "Keep Terrorists Out of America Act" needs the signatures of 218 members for approval; 169 members have currently signed on. Democrats control the House 258-177.
The intraparty divide on the issue perhaps influenced the largely silent conservative message machine Wednesday during and after Holder's appearance before the Judiciary Committee hearing.
Polls also show a split among Americans over where the Sept. 11 suspects should be tried. A recent ABC News/Washington Post poll found that 48 percent of those surveyed said they should be tried by military tribunals; 47 percent said they should be put on trial in the federal court system.
In a CNN poll that asked specifically whether Mohammed should be tried in a civilian criminal court or in a military court run by the armed forces, 64 percent preferred a military court trial, while 34 percent favored a criminal court. However, 60 percent of those surveyed by CNN said that no matter which court system is used, Mohammed should be brought to the U.S. to stand trial.
Courts Vs. Commissions: Not That Dissimilar?
The issue of civilian federal courts vs. military commissions is not as black and white as it has been portrayed, says former Bush administration official John Bellinger III.
"The trials were not going to be that dissimilar," says Bellinger, who was a legal adviser for the State Department and National Security Council.
"It's not going to be easy to do in New York City, but the idea that this is going to be a disaster is just not there," he said during a conference call Wednesday. "Federal prosecutors are more used to doing these kinds of cases."
In fact, Bellinger said, the Bush administration had begun to shore up the ranks of military prosecutors with federal prosecutors who had more experience trying big terrorism cases.
Holder has also downplayed concerns that a civilian trial could require the release of sensitive evidence that could be kept secret during a military tribunal. The rules of evidence in both venues, he said Wednesday, are largely the same.
During an interview Wednesday with NBC News, Obama was asked about those who had taken offense at the decision to try Mohammed in civilian court. "I don't think it would be offensive at all when he's convicted and when the death penalty is applied to him," the president said.
His confidence, Obama said, came from "tough" New York investigators who "specialize in terrorism."
A Bold Move
Holder dismissed the political and public relations aspect of his decision. But there is little doubt that it will have a profound effect at home and abroad.
Steven Simon of the Council of Foreign Relations said there needs to be a focus on the propaganda benefits of the civilian trials, particularly in the Arab world.
"Public relations is an important component of national security," says Simon, author of The Age of Sacred Terror and The Next Attack.
"There's a war for hearts and minds at the center of what the military refers to as 'the long war,' " he said during a conference call. "Whether this will have an effect — and how big — remains to be seen."
Sept. 11 Victims' Families Divided, Too
David Beamer's son, Todd, died on Sept. 11, 2001, when United Airlines Flight 93, commandeered by terrorists, crashed in Pennsylvania. He calls Holder's decision "unconscionable" and says he views it as an attempt by the Obama administration to exact retribution from the Bush administration.
"We don't need a show trial in the shadow of the terrorists' greatest achievement to further their efforts," said Beamer, who attended Wednesday's hearing. "I've tried to think if there's an American reason for doing this, and I can't come up with one."
He says that those who oppose Holder's decision will try to make it part of the conversation leading up to next year's midterm congressional elections.
But Lorie Van Auken, whose husband was killed in the attack on the World Trade Center's north tower, says she sees a powerful reason to bring the alleged terrorists to justice in New York City.
"The taint at Guantanamo is terrible," says Auken, one of the New Jersey widows who successfully pressed for the formation of the 9/11 Commission.
"The thing for me is that this is not about them; it's about us," she said. "If the evidence shows that these people are guilty and held accountable in civilian court, people will accept that verdict as legitimate."
"It's better than the alternative we've had: putting them in a black hole and torturing them," she said.
But she says she understands where Beamer and other family members who oppose federal trials are coming from.
"I understand wanting revenge, but at the end of the day, just getting revenge won't be sweet," she says. "If you show the people, if you show the rest of the world, 'Here's the evidence, here's the punishment' — that's justice."
Uncertain Road Ahead
In a sharp exchange with Holder Wednesday, GOP Sen. Jon Kyl of Arizona asked why the attorney general would transfer Mohammed to a civilian court from a from a military system, where the alleged terrorist has said in the past he wants to plead guilty and be executed.
What's the gain? Kyl asked.
Holder's response: "I'm not going to base a determination on where these cases ought to be brought on what a terrorist — what a murderer — wants to do."
"He will not select the prosecution venue. I will select it," Holder said. "And I have."
Of that, there's no doubt. But how that plays out politically in Washington, in New York City, and beyond will remain a very large —- and debatable — issue for years to come.