Holder Defends Sept. 11 Prosecution Strategy

Attorney General Eric Holder spent hours testifying on Capitol Hill Wednesday. He defended his decision to send the alleged mastermind of the Sept. 11 attacks and four other men to New York to face a criminal trial. Senators spent much of the hearing telling Holder why they think he's wrong.

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RENEE MONTAGNE, host:

In the next few minutes we turn to questions about what might lead to terrorism; about choices made and then challenged. NPR's Daniel Zwerdling reports on the specific and serious concerns that Army had about the behavior of Nidal Hasan, long before he was sent to Fort Hood.

First, we turn to Capitol Hill where, yesterday, Attorney General Eric Holder spent hours defending his decision to send the alleged the mastermind of the 9/11 attacks and four other men to New York City to face a criminal trial.

Mr. ERIC HOLDER (U.S. Attorney General): As a prosecutor, my top priority was simply to select a venue where the government will have the greatest opportunity to present the strongest case and the best law(ph).

MONTAGNE: Senators spent much of the hearing telling the attorney general why they think he's wrong - as NPR's Dina Temple-Raston reports.

DINA TEMPLE-RASTON: Attorney General Holder said he knew his decision to try to 9/11 suspects in a criminal court would be controversial.

Mr. HOLDER: This was a tough call and reasonable people can disagree with my conclusion that these individuals should be tried in federal court rather than a military commission.

TEMPLE-RASTON: Senator John Kyl of Arizona asked how the attorney general could conclude that a federal court, known as an Article 3 court, would be better than a military commission to convict the 9/11 suspects.

Senator JOHN KYL (Republican, Arizona): Khalid Sheikh Mohammed has already asked to plead guilty before a military commission and be executed. How could you be more likely to get a conviction in an Article 3 court than that?

TEMPLE-RASTON: Families of the 9/11 victims in the audience applauded quietly before they were shushed by the chairman.

Kyl went further. He accused the attorney general of Khalid Sheikh Mohammed exactly what he wanted - a show trial in New York. Holder bristled.

Mr. HOLDER: 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 and I have.

TEMPLE-RASTON: The debate grows out of the fact that the 9/11 attacks fall in a gray area. Holder said the attacks were both an act of war and a violation of federal law, and that's precisely what worries Senator Lindsey Graham. He said that the criminalizing terrorism complicates things for the people on the frontlines of the fight.

Senator LINDSEY GRAHAM (Republican, South Carolina): But I'm telling you right now, we're making history and we're making bad history.

TEMPLE-RASTON: Graham gave an example. What would happen, he asked the attorney general, if Osama bin Laden were captured on the battlefield? Would he be read his rights and given a lawyer, just like any other criminal defendant? The attorney general said that people picked up on the field of battle are very rarely read their Miranda rights.

Mr. HOLDER: The notion that a conviction of Khalid Sheikh Mohammed would depend on his getting Miranda rights is simply not accurate.

TEMPLE-RASTON: Another concern: that all these legal protections could mean the trial of one or more of the suspects could end in acquittal. Here's Democratic Senator Herb Kohl of Wisconsin.

Senator HERB KOHL (Democrat, Wisconsin): In the event that, for whatever reason, they do not get convicted, what would be your next step? I'm sure you must have talked about it.

TEMPLE-RASTON: Holder wouldn't even entertain the possibility.

Mr. HOLDER: What I told the prosecutors and what I will tell you in what I spoke to them about is that failure is not an option. Failure is not an option. These are cases that have to be won. I don't expect that we will have a contrary result.

TEMPLE-RASTON: Kohl called that an interesting point of view, and the audience in the hearing room murmured. Senator Kohl also asked about the other major news affecting the Justice Department - the shooting at Fort Hood - and Holder was careful about his answer.

Mr. HOLDER: We are at close to the beginning stages of this inquiry and I think we have to determine, on the basis of a sound investigation, exactly what happened.

TEMPLE-RASTON: He said a review of the intelligence the government had gathered on the shooting suspect was due at the end of the month. Another Senate committee announced it will conduct its own investigation of the Fort Hood shooting. They're holding a hearing on that, today.

Dina Temple-Raston, NPR News.

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