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ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

And we begin this hour with the case of two Iraqi refugees. The FBI suspected the men of trying to provide weapons to al-Qaida and captured them late last month in Kentucky. Their story has reignited the political debate over where to bring terrorists to justice. Republican Senator Mitch McConnell of Kentucky says the men pose a danger to the people in his state and he wants them sent to Guantanamo Bay.

But as NPR's Carrie Johnson reports, the Justice Department insists the real danger is fear-mongering by politicians.

CARRIE JOHNSON: Terrorism suspects nabbed on American soil have never been sent outside the U.S. to face military trial. But if the Senate's top Republican, Mitch McConnell, gets his way, that's exactly what could happen. Here's McConnell on Capitol Hill this week.

Senator MITCH MCCONNELL (Kentucky): I think it's safe to say that a lot of Kentuckians, including me, would like to know why two men who either killed or plotted to kill U.S. soldiers and Marines over in Iraq aren't sitting in a jail cell in Guantanamo right now.

JOHNSON: McConnell says the two refugees, Waad Alwan and Mohanad Hammadi, don't belong in his backyard. He wants to see Kentucky rise up, just like New York did when it prevented the trial of September 11th mastermind Khalid Sheikh Mohammed from happening there.

Attorney General Eric Holder isn't backing down this time. He told the American Constitution Society, Thursday night, that the fight is on.

Attorney General ERIC HOLDER: Politics has no place, no place in the impartial and effective administration of justice. Decisions about how, where and when to prosecute must be made by prosecutors, not politicians.

JOHNSON: Prosecutors, Holder says, have a better understanding of the law. And according to the law, here's what matters. The two Iraqi refugees involved in the Kentucky case are already on American soil. They're charged with trying to send weapons to al-Qaida in Iraq. And the conversations that form the bulk of the criminal case against them happened in Kentucky, so there's no legal basis for sending them to Guantanamo. Still, McConnell says he's worried about safety.

Senator MCCONNELL: Sending them to Gitmo is the only way we can be certain there won't be retaliatory attacks in Kentucky.

JOHNSON: The Republican candidate in Kentucky's governor's race has already come out in support of sending the Iraqi men to Guantanamo and his Democratic opponent quickly followed suit. Jim Earhart, a defense lawyer for one of the Iraqi men, says he doesn't get it.

Mr. JIM EARHART: I just don't understand why anybody fears our Constitution, particularly when they're sworn to uphold it. It really just perplexes me that people have this fear that constitutional rights somehow will jeopardize our country. It should be totally the opposite.

JOHNSON: Meanwhile, back in Washington, lawmakers in the House are using safety concerns to justify language in a Pentagon spending bill that would force the attorney general to send any accused foreign terrorist to military courts, not just the two men in Kentucky. Holder said hundreds of terrorism suspects have been tried in ordinary courts since 9/11. And he says Congress isn't paying attention to the facts.

Attorney General HOLDER: Not one of these individuals has escaped custody. Not one of the judicial districts involved has suffered retaliatory attacks. And not one of these terrorists arrested on American soil has been tried by a military commission.

Mr. JIM CULLEN (Army Judge Advocate General Corp): I'm Jim Cullen. I'm a retired brigadier general in the Army Judge Advocate General's Corps.

JOHNSON: Cullen is one of a group of retired military officers lobbying Congress not to tie the Justice Department's hands when it comes to national security.

Mr. CULLEN: The core competency of the Department of Defense is to defend the nation. It is not to take over the role of the Justice Department.

JOHNSON: Cullen says most of the terrorists convicted in U.S. courts are serving long sentences. They're behind bars for decades. They're no longer a terrorist threat. And they're no longer fodder for politicians.

Carrie Johnson, NPR News, Washington.

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