ROBERT SIEGEL: Attorney General Holder, welcome to the program.
ATTY. GEN. ERIC HOLDER: Well, thanks for having me.
MR. SIEGEL: And, first, Guantanamo. Now, you've acknowledged that it will be difficult to make good on closing the facility by January 22nd. That's within a year of President Obama's executive order. Being realistic, is it going to be difficult or is it frankly impossible to do it by January 22nd?
ATTY. GEN. HOLDER: I'd say it's difficult. We continue to make, I think, great progress with regard to the work that we're doing in the task forces that are looking at the people who are still housed there, making determinations as to who can be transferred, who will be prosecuted. We expect to make determinations about these prosecutive decisions, whether they go into Article III courts or into military commissions by the middle of November. So I think the possibility still exists, but it will be difficult to meet that deadline.
MR. SIEGEL: You say by the middle of November you'll decide what kinds of courts people who are to be tried will go to. But have you already decided who is to be tried, who is to be released, who is to be transferred?
ATTY. GEN. HOLDER: That process continues. We've made a lot of progress looking at that original group of about 240 people. The number of people still —- where determinations still are to be made is substantially lower than it was. And we will have all of those decisions made, I think, by the middle of November.
MR. SIEGEL: One of the questions is where people who are to be — where detainees who are to be transferred or released are to be transferred or released to. Can you explain why other countries, why third countries should accept detainees if the United States isn't willing to accept them?
ATTY. GEN. HOLDER: Well, I think that our allies, those nations who have decided to accept detainees understand that closing Guantanamo will ultimately make them safer as it will make us safer. Guantanamo is a chief recruiting tool for al-Qaida. It has put a wedge between the United States and at least some of its allies. And I think they understand that by helping us in this closure process, they will lessen the possibility that they themselves will come under attack.
MR. SIEGEL: What you're saying is it makes them safer just as it makes us safer. What about us? Is the United States willing to accept these people? Why have you run into so much opposition to resettling these people in the United States, reincarcerating them somewhere in the United States?
ATTY. GEN. HOLDER: Yeah, I mean, we have to deal with these restrictions that Congress has placed on our supplemental budgets. There are restrictions that are at least being considered now. Some of the concerns that have been expressed by at least some in Congress seem illogical to me, a concern that we will not, for instance, have an ability to bring people to this country, detain them so that they can be tried.
We have in our prison system now people who are terrorists, people who are unbelievably bad criminals who we have had an ability to keep in prison, to try, and with no threats to the communities that surround the places where those trials have occurred.
MR. SIEGEL: But do you regard that as, now, a restriction on what you can do? As you understand it, could you actually not bring people into the U.S. to be detained for trial because of congressional restrictions? Or would it merely provoke criticism in Congress if you did that?
ATTY. GEN. HOLDER: Well, I think it's an ongoing process. I think there are some in Congress who probably do not want us to be able to bring them into the United States. I think that once we have made our case and we've had a full discussion about this issue that we will ultimately be in a position that the administration is comfortable with.
MR. SIEGEL: Have you chosen a facility yet where —- if there is to be a trial or multiple trials in U.S. criminal courts —- where those trials will be held in the U.S.?
ATTY. GEN. HOLDER: No, that determination has not been made yet but we are actively engaged in that process, and our hope would be that in a relatively short period of time, we'll be able to announce where we think we can safely hold those trials; safely detain people pending trials, whether they be military commissions or Article III courts.
MR. SIEGEL: You assume it would be under special security circumstances and different from an ordinary federal courthouse?
ATTY. GEN. HOLDER: Well, we're going to have to obviously make sure that the place where these people are detained is consistent with the Geneva Convention, and that's different from the way in which ordinary prisoners are housed.
We also have safety concerns that we will obviously follow. We're going to do whatever it is that we have to do to protect the American people, protect the communities in which these proceedings might occur and also do it in a way that's consistent with our international obligations.
MR. SIEGEL: In the case of, say, Khalid Sheikh Mohammed, perhaps the most notorious of the detainees, can you imagine a trial that is fair of someone who was waterboarded 183 times during his interrogation? Can there be a fair criminal proceeding of a person who's been treated that way in custody?
ATTY. GEN. HOLDER: Oh, sure, I think you can have a fair trial. A judge will have to look at —- or a military commission would have to look at —- the way in which he has been treated during the course of his confinement.
Decisions can be made to exclude evidence if that were something a judge thought was appropriate. We have trials that occur all the time in which police conduct is called into question; where ultimately a trial is made fair as a result of the evidentiary rules that we apply.
MR. SIEGEL: But can you think of any criminal trial you're familiar with where the police —- the abusive police behavior was comparable to 183 waterboardings of a suspect?
ATTY. GEN. HOLDER: Well, waterboarding is not something I was necessarily familiar with until I became attorney general some time before that. So I'm not familiar with that technique. But I am familiar with a variety of things over time —- practices, perhaps, that have been outlawed now that were used. The question will ultimately be, you know, can we produce a trial that is fair, use evidence that is reliable —- was reliably obtained. And it may be that there are things other than the words of Khalid Sheikh Mohammed or some other defendant that will be ultimately dispositive in the determination of guilt or innocence.
MR. SIEGEL: I want to take you back, for a moment, to the speech that you gave when you described the U.S. as a nation of cowards when it comes to talking about race. This generated many, many blogs, some of them very critical. A lot of people said, yeah, there are other countries that are not cowardly when it comes to talking about race; on the other hand, they haven't elected a black president or had black secretaries of state, black attorneys general, black supervisors of the office. Maybe you were selling the U.S. short. Any regrets?
ATTY. GEN. HOLDER: No, not really. I mean, I think people need to look at that speech in its entirety. It was a very hopeful speech. It talked about some deficiencies that I noted in our country. I might have chosen different words.
MR. SIEGEL: You mean on the "coward" —- that "coward" was the word you might rethink.
ATTY. GEN. HOLDER: Yeah, I might have said, you know, we were "reluctant to" as opposed to "cowards," but I think I stand by what I said in the speech. And that is that, you know, this is a country that has been afflicted with racial issues for much of its history. We have a coming demographic change that's going to make us more diverse than we ever have been. And unless we are willing to talk with one another in an open way about these kinds of issues, this coming diversity might be a negative when it should be a very positive thing for our nation.
MR. SIEGEL: But so if you had to choose that one phrase again, you think that "we are reluctant when it comes to talking about race" might have been —- (chuckles) —- might have been a word you would go with today?
ATTY. GEN. HOLDER: Yeah, I might have changed that word and saved the bloggers a lot of ink.
MR. SIEGEL: Well, Attorney General Eric Holder, thank you very much for talking with us today.
ATTY. GEN. HOLDER: Thanks for having me.