Eric Holder And The Politics Of Terrorism Trials Attorney General Eric Holder has come under fire, mostly from the Republican side of the aisle, for the decision to try Sept. 11 mastermind Khalid Sheikh Mohammed in a civilian court — and for the handling of "underwear bomber" Umar Abdulmutallab after his arrest. New Yorker journalist Jane Mayer looks at growing partisan differences about national security.

Eric Holder And The Politics Of Terrorism Trials

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This is FRESH AIR. I'm Terry Gross.

Republicans have been attacking Attorney General Eric Holder and President Obama for the decision to give a civilian trial to Khalid Sheikh Mohammed, the alleged architect of 9/11, instead of trying him before a military commission; and for treating the Christmas Day bomber, Umar Farouk Abdulmutallab, as a civilian, as opposed to an enemy combatant, getting him a lawyer and reading him his Miranda rights.

My guest, Jane Mayer, writes about how Holder's decisions have galvanized Republicans. Her article, "The Trial: Eric Holder and the Battle Over Khalid Sheikh Mohammed," is in the current edition of the New Yorker. She covers politics and national security for the magazine. She's also the author of the 2008 book "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals."

Jane Mayer, welcome back to FRESH AIR. Is it fair to say that there's a parallel war to the war against terrorism, and that's a political war at home, about how to handle alleged terrorists?

Ms.�JANE MAYER (Author, "The Trial: Eric Holder and the Battle Over Khalid Sheikh Mohammed," New Yorker; Author, "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals"): There certainly seems to be, and it seems to be getting fiercer by the week.

GROSS: You describe this new political organization called Keep America Safe that's all about this political battle. What's this organization, and who's behind it?

Ms.�MAYER: This is an organization that was actually founded by former Vice President Cheney's daughter, Elizabeth Cheney, and Bill Kristol, who is a conservative pundit who has worked for a number of Republican administrations. And then the third partner is Debra Burlingame, who is the sister of one of the pilots who was killed in the 9/11 attacks, and she is a Republican activist.

So the three of them have founded this political action group that is dedicated basically to simply attacking Obama on national security issues. They are going to get involved in congressional races and to make sure these issues come to the forefront, and they pretty much argue in every way they can that in a way that would sort of vindicate the Bush administration policies by attacking the Obama ones.

GROSS: The Bush administration policies being what, in this instance? Like, what policies are they trying to bring back or justify?

Ms.�MAYER: Pretty much the whole constellation of issues that have to do with how you fight terrorists, and basically, the most controversial parts of those are have to do with how you detain terrorists and how you interrogate terrorists.

And during the Bush years, America changed its stance on this subject. Before 9/11, terrorists were treated as criminals, which is how the rest of the world continues to treat them. They were caught, they were charged, they were read their rights, they were put on trial, and they were convicted and - just like every other criminal.

But after 9/11, Bush declared the war on terrorism and basically said that terrorists were not criminals, they were warriors of some sort. And this then completely changed the category of treatment. It became a war crime, and they became Bush argued that they should be treated in a military system instead of in the regular criminal system.

And what that actually meant, sort of, practically speaking, was that the Justice Department took a back seat to the Pentagon in prosecuting terrorists.

GROSS: Now, you mentioned that this new political organization, Keep America Safe, that wants to justify Bush administration terrorist policies and attack Obama administration policies, you said they want to fund Republican congressional races, races of people who have a similar point of view on how to deal with alleged terrorists. This issue figured prominently in the campaign of Scott Brown.

People think oh, it was about health care, he won because of health care. But you spoke with his chief political advisor, and what did he tell you about how terrorism figured into his victory?

Ms.�MAYER: Well, yes, his name is Eric Fehrnstrom, and what he told me was surprising, because people think that the Scott Brown victory was based on Brown's attack on Obama's health care policies. But what Eric Fehrnstrom told me was that, in fact, the most potent issue that they had was attacking Obama on terror, and particularly on the way that Obama handled the Christmas Day bomb suspect; and also Obama's decision to try Khalid Sheikh Mohammed in the civilian system rather than in military tribunals.

Now these are it's funny because these seem like they're actually very legalistic and complicated issues, but what Scott Brown was able to do was reduce them to a simple soundbite, which was basically saying some people think that we need to give constitutional rights to terrorists -not me.

So anyway, it worked very well for them, and the soundbite on the other side, for the Obama administration, is much more complicated, and in fact, the Obama administration for some reason really was not out front, politically, and didn't see this coming, I think.

There had been rallies, and you asked me earlier about what Keep America Safe did. One of the things that they've done is they've helped to promote public demonstrations. And there was a pretty there was a small but kind of virulent rally in New York City that took place in early December where they pushed these issues very hard.

GROSS: And what was the rhetoric like at the rally?

Ms.�MAYER: The rhetoric was I was there. It the rhetoric was as poisonous as any rally I've ever attended, and I've been covering politics for 25 years. Some of the things that were said by the crowd we at the New Yorker were unable to print because it was really too vile. But basically, the crowd was shouting at a Jumbotron that showed coverage of Eric Holder, the attorney general's, testimony in Congress on the subject of giving civilian trials to Khalid Sheikh Mohammed.

And basically, the crowd was screaming things like traitor and communist and hang him, and they literally were...

GROSS: Hang Eric Holder.

Ms.�MAYER: Hang Eric Holder, and they were also they were actually literally saying lynch him, of Eric Holder, who is of course our first black attorney general.

So it was an ugly scene. It was an upsetting scene, and the crowd was upset.

GROSS: Well, let's talk about how Eric Holder is trying to handle the trial of the, quote, underwear bomber, Umar Farouk Abdulmutallab. Republicans have criticized attorney general Eric Holder for allowing Abdulmutallab to be read his Miranda rights. What do you know of why Holder decided to allow Abdulmutallab to be arrested as a criminal suspect, as opposed to an enemy combatant, which would put him in a military tribunal situation?

Ms.�MAYER: Well - and I've spent a fair amount of time talking with Eric Holder about all these issues. I've been lucky enough to have had three long interviews with him recently. So I've, you know, been able to kind of draw him out on these issues.

Basically, the treatment of Abdulmutallab, the Christmas Day bomb suspect, was exactly like the treatment of every other terror suspect who's been ever been captured inside the United States. It's completely consistent with the Bush administration's treatment of terror suspects and previous administration's treatments of terror suspects. And there really wasn't a question of sending in the Army or the, you know, the special forces or something and grabbing this man at the airport in Detroit.

A senior administration official in the White House said to me there's, you know, that there is no alternative justice system. That's a kind of fantasy that takes place in the show "24" or something. We the Constitution does not allow the military to just come in and take people away to some dark place without any kind of judicial supervision and make them talk - whatever that would really mean.

There isn't an alternative. And so what Holder did in this instance was what everybody has done in such instances. He had the FBI arrest the man, along with the customs agents and the airport law enforcement officials, and then question him as best they could under something called the Public Safety Exception, which allows the law enforcement officials to start interrogating somebody even without giving them their Miranda Rights if the situation seems that the public safety is in danger.

And they did that for about 50 minutes, and they got a fair amount of information out of Abdulmutallab. They found out where he was from, which was Yemen. They found out where he got his explosives in Yemen, which was from the al-Qaida group there, how he had been trained, who'd trained him.

He actually gave them a good bit of information, and then he had to go in for medical treatment, and after that medical treatment he stopped talking, and at that point he demanded a lawyer. And so when he had already stopped talking and demanded a lawyer, they read him his rights and got him access to a lawyer, which is exactly how the Constitution requires that such a situation be treated.

So anyway and Holder, actually we've just learned recently, not only did what everybody else has done in such a situation, but he also notified the Republican leadership in Congress that this was what they were planning to do, and though the Republicans have turned this into kind of a political football game and really made a big deal about it later, at the time they raised no questions about. Nobody would. It's very much what we have always done.

GROSS: What do you know about when Abdulmutallab's family was called in, because...

Ms.�MAYER: Well, this is very interesting too, I think. Basically, there are two pieces of the Christmas Day bomb suspect story that involves his family.

The first part was, before he was caught, his father went to United States authorities and warned them that he thought his son was getting sucked into some kind of dangerous militant radicalism that was anti-American, and he worried that he might do something that was dangerous to America. So he voluntarily came to U.S. officials.

Then later, after Abdulmutallab was taken into U.S. custody, the FBI and CIA working together were able to get other family members, not the father, to work with them and come over to America from Nigeria, where he is from, and to convince him to cooperate further with the United States government and start talking more in order to try you know, in the end of the day, I think probably the incentive is that this suspect now faces he's 23 years old, he faces life in prison, and the only chance he has of any kind of deal ever of getting out of prison would be to become an informer on the subject of al-Qaida, and his family has convinced him to start doing that.

What's important about this is that the critics of our legal system -and this is, again, something that the legal system does often, is to work with families and try to work out sort of plea deals that get cooperation. People who are against this system have suggested that they would do better with Abdulmutallab if they had just taken him and started to use kind of tough measures of some sort and not given him to law enforcement authorities but to the military.

But what Holder told me was: look at the look at the facts here. The things that have worked are working with his family. And Holder said to me: His family would have never worked with us if they thought that the son was going to be taken off the face of the Earth and disappeared into a black prison site and tortured.

You know, in order to get the kind of cooperation we need, we have to have a system that is consonant with American values, is what Holder argues.

GROSS: Now, Republicans have been making a big issue about how the Obama administration is being soft on terrorists and, you know, Mirandizing them, making fun of the Obama administration giving Miranda rights to alleged terrorists.

Former Vice President Dick Cheney has equated Attorney General Eric Holder's approach to handling terrorism with giving aid and comfort to the enemy.

So let's compare how Holder handled the Christmas Day bomber with how the Bush-Cheney administration handled Khalid Sheikh Mohammed, who is believed to have been one of the masterminds of 9/11. He was waterboarded 183 times. So what did we get from that?

Ms. MAYER: Well, I think that Vice President Cheney would say that we got a lot of intelligence out of Khalid Sheikh Mohammed. The record, unfortunately, is not open to public inspection. So we can't really see what he told us. But we also got, because he was waterboarded 183 times, a big legal problem, which is once somebody's rights have been violated like that, and you know, under our Constitution, nobody can be subjected to cruel and unusual punishment or to torture, and once that's happened to a suspect, it gives his lawyers the right to argue that, that, you know, none of the testimony that was wrung out of him that way is usable in a trial. It's all considered tainted.

And so now the Obama administration inherits this record of intelligence information that was taken from Khalid Sheikh Mohammed under coercive sort of situations, and they can't use it, and it makes it much harder to make the case against him.

GROSS: My guest is Jane Mayer. We're talking about her article in the current New Yorker, "The Trial: Eric Holder and the Battle Over Khalid Sheikh Mohammed." She covers politics and national security for The New Yorker. More after a break. This is FRESH AIR.

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GROSS: My guest is Jane Mayer, and she covers politics and national security for The New Yorker. Her current article is called "The Trial: Eric Holder and the Battle Over Khalid Sheikh Mohammed." The article is really about the larger battle in the United States over how to deal with alleged terrorists and how Republicans are attacking the Obama administration. It examines how the Obama administration is trying to proceed.

Let's look at two examples of how the Bush administration took alleged terrorists and moved them from the criminal justice system into military custody for interrogation and detention. I'm thinking of Jose Padilla and Ali Saleh Al-Mari(ph). What was the outcome with them?

Ms. MAYER: Well, this is a good question because these are really the kind of guinea pig cases that are the only ones where in recent history where the government has turned a suspect over to the military for questioning inside the U.S., a terror suspect. And they didn't go well, is the answer, which is so interesting because, you know, there's this myth that somehow the military is going to be tougher and more effective in making terrorists talk, and actually it's the record does not support that conclusion.

In the case of Jose Padilla, he was held for at least for the first seven months, there's a document I've seen where the military that's got custody of him is incredibly frustrated and they're complaining. They have not been able to get a word out of him that's of any use whatsoever.

I think eventually he cooperated somewhat, but I don't think they got anything, from what I've been told, that was considered particularly interesting or, you know, actionable intelligence from Padilla.

And Al-Mari was even more difficult to crack. In fact, they never did. The military held Al-Mari for six years, and he was in solitary confinement, and they tried all kinds of things, but he never gave them a shred of intelligence.

So there really is no reason to believe that the military is any better at making people talk than the FBI is. In fact, the FBI has actually a pretty strong record on getting people to talk, because again, they have incentives that they can give people. They can work with lawyers to work out plea deals. And what's important when you take a terror suspect, I'm told, is to try to get them to talk fast.

You want to get them to give you intelligence when it's still fresh and maybe before the people that they've been working with in another country know that they've ever been captured. Time is of the essence, and in the two cases where they've tried this with the military, it took months and years, and in fact in some cases never did they get any intelligence out of the people at all.

GROSS: You know, ironically, the people who the Bush administration sent to the criminal courts, those people are some of them are serving life sentences now, like Richard Reid, the shoe bomber. Give us some other examples of how alleged terrorists were handled in the criminal courts, what the outcome was.

Ms. MAYER: And Zacarias Moussaoui is also serving a life sentence. He was the person who at one point they thought was the 20th hijacker who was missing. I think he was more, actually in retrospect, someone who was going to be a second wave of al-Qaida.

But he and Richard Reid are, you know, are serious al-Qaida terrorists, and they were put on trial by the Bush administration, which is now members of whom are now criticizing Obama for doing exactly the same thing, and they were very successful in convicting these people.

And at the time, their convictions were celebrated by some of the people now who are criticizing Obama. In fact, really, if you take a look at the numbers, the Bush administration convicted some 150 terrorists on terror charges after 9/11, and three in military commissions. Vastly more people were tried during the Bush years in the regular civilian courts and with great results.

The courts are I mean, we have a terrific justice system in this country, and we have very experienced prosecutors and very sophisticated judges who can keep order in the court. So there's a good track record here for the U.S. courts.

GROSS: So why is it, do you think, that Republicans are using this issue of trying alleged terrorists in the criminal courts? Why are they using this against the Obama administration when the fact is that the Bush administration did it too and the Bush administration had much, much, much more success in the criminal courts than through the military system?

Ms. MAYER: Well, I think it boils down to what works politically, basically. There is a serious policy argument underneath this, which is also true, that the which is that in the Bush years they tried to elevate the role of the military in dealing with terrorists, and as one of the people I interview in my story says, emasculate the Justice Department, have it play a much smaller role in dealing with terrorists.

And so there is a fight going on about the proper role for the U.S. courts in dealing with terrorism, but it's more symbolic than actual, and the problem for the Obama administration is that there's a fear factor here.

People who people are easily frightened about terrorism for obvious reasons, and the critics of the Obama administration are arguing that he, that Obama is weak because he's too legalistic.

So we have, for instance, Sarah Palin in her speech at the Tea Party convention saying we don't need a law professor fighting terrorism, we need a commander in chief.

So she's suggesting Obama, because he wants to work within the U.S. legal system, is somehow weak. The problem is, the president takes an oath to uphold the U.S. Constitution. He has to be both commander in chief and he has to uphold the laws, and it's not an either-or choice, and it's a false choice to make it sound otherwise.

GROSS: Jane Mayer will be back in the second half of the show. Her article, "The Trial: Eric Holder and the Battle Over Khalid Sheikh Mohammed," is in the current edition of The New Yorker. You'll find a link to the article on our Web site, I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. Im Terry Gross back with Jane Mayer. She covers politics and national security for "The New Yorker." We're talking about her article "The Trial: Eric Holder and the battle over Khalid Sheikh Mohammed." She says Attorney General Eric Holder's choice of a civilian trial for the architect of 9-11 has galvanized Republicans who want him tried before a military commission.

Let's look at the trial of Khalid Sheikh Mohammed or the attempted trial...

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GROSS: ...of Khalid Sheikh Mohammed. Eric Holder wanted to hold the trial in New York and he said it was a fitting place; it was the site of the World Trade Center attacks. What were some of his other reasons for wanting to hold a criminal trial in New York?

Ms. MAYER: Well, in that there's a death penalty statute and I think they made it pretty clear they're going to seek the death penalty for Khalid Sheikh Mohammed. In that statute, it says you should try the suspect in the place where the crime was committed. And certainly, there was, you know, incredible loss of life on 9-11 in New York. They had, the only other choices were Pennsylvania and Virginia where the Pentagon is. So they chose New York, and they chose it for other reasons as well. The judges in New York have dealt with earlier terror trials. Theyve dealt with earlier al-Qaida suspects, actually, very well.

In the 1993 bombing of the World Trade Center case took place there and those suspects have all been put away for multiple life sentences and are serving in maximum security prisons. So there's experience in New York, and the prosecutors there are fantastic; they're some of the best in the country, and the FBI there has dealt a lot with terrorism, so they can support that kind of prosecution.

GROSS: Now Holder had gotten key people in New York to agree to this, including Mayor Bloomberg, Police Commissioner Raymond Kelly, Senator Chuck Schumer, and then they turned against the idea. What changed?

Ms. MAYER: Well, there's some - some of this remains somewhat mysterious. But yes, Holder did get them all on board and then they flipped, basically, as the politics started turning against them. The neighborhood groups started to get really worried about it. The merchants and real estate people who work in the downtown area also started turning against it. They worried, for business reasons, that traffic would be tied up and - or that people might be frightened and not want to come near the area.

And then, of course, what happened was - I think that the - probably the seminal of that was that the Christmas Day bomb attempt happened, and at that point, people became frightened again about terrorism. It kind of renewed all of these worries about whether people could be safe in this country and that was exploited by political pundits of Obama and fear was whipped up, and the next thing you know, all of the local officials started crumbling.

GROSS: What are some of the legitimate concerns that New Yorkers have about having the Khalid Sheikh Mohammed trial in Manhattan - concerns about safety, security expenses?

Ms. MAYER: I think that there are fears that many people have who are, that are - that the trials will maybe rile up terrorists watching around the world who may try to attack the courthouse or attack the neighborhood or New York again. Just that it would kind of whip up a certain amount of tension, so that there's that worry. And I think, certainly there were financial worries. I mean, what happened was that Ray Kelly, who's the commissioner of police in New York, was put in charge of coming up with the cost estimates for this trial and the cost estimates just grew and grew and grew. So it started at about $75 million dollars a year and then it went to a couple hundred million a year. And then by the time Kelly folded and turned on these trials, he was saying it was going to cost a billion dollars for over several years, and that kind of money just seemed absurd to many people.

So those were legitimate concerns I think that many people in New York City have. And to some extent they feel that, you know, theyve gone through a lot already in this neighborhood. My sister actually lives there and I was talking to her about it. She lives just a few blocks from where that courthouse is. And she said, you know, we're just trying so hard to not think about 9-11 every day and this is just going to bring it back again. I mean they're many people for many different reasons did not welcome this. And I think I can certainly understand that sentiment. But part of the reason that it didnt go well for the Obama administration, I think, is they didnt really make the argument well themselves.

For some reason, they made it always sound like it was only Eric Holder's decision rather than Obama's. In fact, the day that Eric Holder announced this decision to try Khalid Sheikh Mohammed in New York, Obama was in Asia and so not standing there with him and backing it up. He gave a supportive statement, but from all away around the world. And they haven't spoken up about it that much and they haven't really sold it that much, politically. And meanwhile, people who opposed it were very outspoken.

GROSS: Is there a way that Khalid Sheikh Mohammed can be legally tried in the middle of the desert or in some like unpopulated place in the United States where security wouldnt be as much of a concern, where there wouldnt be neighborhoods that would be impinged on, but there could still be a criminal court trial?

Ms. MAYER: You know, I've been asking these questions and it creates a kind of a novel situation and I'm not really sure what the answers are. Apparently they could pick a - for instance, a military installation of some sort and hold a federal criminal trial there. So that's a possibility if they can find a military installation that would work for it. Though, for instance, Chuck Schumer, who is the senator form New York who was originally in favor of these trials, has said he's against holding these trials now, anywhere in New York State, so that kind of rules out West Point, for instance or Stewart Air Force Base in New York. So youre going to need some buy-in from some local officials and I'm sure they're working hard behind the scenes to see if they can't find some.

GROSS: Now, President Obama had said that the Bush administration's legal approach had created a mess - a mess inherited by the Obama administration. One of the people you spoke to for your current article in "The New Yorker" was Amy Jeffress, Eric Holder's national security advisor. She said that the Bush administration clearly hadn't planned on prosecuting anyone. Instead, it was let's take a shortcut and put them in Gitmo. Can you explain what she meant by that?

Ms. MAYER: Right. And Amy Jeffress is a career prosecutor herself. She was in the U.S. Attorney's Office in Washington, so she's had a lot of experience prosecuting cases and she's - her job was to review the cases of the detainees down in Guantanamo. And the hope was that they could bring charges against them, put them on trial, convict those who are guilty and send the others home some place, you know. But what happened was, when they started opening up these cases - they inherited them from the Bush administration - they looked at the files and, first of all, the files were all over the government. There was no sort of centralized place where they were. They were in many different bits and pieces of evidence and different agencies. And when they put all the evidence together, which she said was, you know, it was pretty thin stuff.

So basically, the emphasis in the Bush years you have to understand, was on capturing people who seemed like they might be enemy combatants and taking them off the battlefield and getting whatever intelligence you could out of them and keeping them from harming the United States. The emphasis was not on prosecuting them as criminals. And when you look at these cases, they didnt do the kind of diligent work that you would do to prosecute someone. And so it's created a huge legal headache for them.

GROSS: My guest is Jane Mayer. She covers politics and national security for "The New Yorker."

We'll talk more after a break.

This is FRESH AIR.

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GROSS: My guest is Jane Mayer. She's a staff writer for "The New Yorker." Her article in the current edition is titled "The Trial: Eric Holder and the battle over Khalid Sheikh Mohammed."

There are disagreements within the Obama administration now, about how to handle the legal experts from the Bush administration who wrote the memos that justified the use of waterboarding and other extreme interrogation techniques. Eric Holder has argued that these people should be prosecuted. He studied under Telford Taylor, who was one of the prosecutors at Nuremberg, the war crimes trial in Germany after World War II, and he felt that it was his responsibility to investigate torture allegations. But it looks like charges against John Yoo and Jay Bybee, two of those legal experts from the Bush administration, will not go further. What is the story behind that?

Ms. MAYER: Well, I mean listen, this is a hot potato subject for the Obama administration that they didnt ask for again. They have their own political agenda and theyve got enough problems with that and meanwhile, theyve inherited again these complicated legal issues from the Bush years. And so, inside the White House, the people who deal with politics say dont look back. Let's not get into things - doing things that look vindictive or might criminalize what our predecessors did in trying to protect the country from terrorism. But the problem is, the lawyers over in the Justice Department who are looking inevitably at -the law requires them to look back to a certain extent.

The convention against torture, which the U.S. has signed, says that if they're credible allegations of torture the United States has to investigate them. So, as attorney general, Eric Holder is - he knows that's his responsibility and he has seen documents - many of which are still classified - that suggest that the U.S. interrogators crossed the line between doing things that were legal and things that might've violated the law, and he feels he's got a responsibility to at least have somebody take a second look at that. So he put a special counsel who was already investigating related matters. He had this man, John Durham take a look at whether or not the law was violated in these interrogations where they used things like waterboarding. And that decision on Holder's part, really annoyed the political people who saw this as counterproductive. They saw it as something that's going to get the independent voters who they needed upset.

So it created a big fight and it basically had Rahm Emanuel, the Chief of Staff to President Obama inside the White House, against doing this and you had Holder deciding to do it anyway, and Rahm Emanuel sort of saying to colleagues in the White House, didnt Eric get the memo? We're not looking backwards. We're not re-litigating the past. But Holder has a different responsibility again. His job is to be the chief law enforcement officer and he's very much tried to do this in what he thinks of as a non-political way - just look at the law and try not to get bogged down in politics one way or the other. So it's created a lot of political friction.

GROSS: Rahm Emanuel, President Obama's Chief of Staff seems to be playing a pretty significant role in deciding how the administration will go forward and how it deals with alleged terrorists. Now you write that Rahm Emanuel feels that he needs the support of Lindsey Graham in order to close Gitmo. And Lindsey Graham is a proponent of military commissions, not criminal court trials for alleged terrorists. So how is that affecting Rahm Emanuel's strategy and how is that strategy affecting Eric Holder?

Ms. MAYER: Right. Rahm Emanuel's, his portfolio is politics and he needs to think about how to protect the president and move the president's agenda forward. And he, from his point of view, if the president wants to close Guantanamo they're going to need bipartisan support. And the senator who has been or one of them who's been most helpful on the Republican side to them is Lindsey Graham on the Senate Arms Services Committee. And so Rahm Emanuel wants to keep Lindsey Graham working with them to close Guantanamo. But Lindsey Graham has exacted a price. He will only help the White House if they use military commissions, not civilian trials for these major 9-11 suspects. So Rahm Emanuel wants to make that deal and please Lindsey Graham and get his help in closing Guantanamo.

But Eric Holder, again, has a different position because he's looking at the law and he's saying if we want to really truly use the most reliable means of convicting these terror suspects, and do it in an above board way that America has - you know, can be proud of we should use our courts, not some sort of makeshift military commissions that the Bush administration came up with down in Guantanamo.

And so he went forward, despite the fact that Rahm Emanuel was against it and decided to go ahead and have this - what he called the trial of the century in New York. Rahm Emanuel's very unhappy about it and he, behind Holder's back in the White House, was saying, if we can't close Guantanamo it's all on Eric. It's his fault basically. And so, you know, there are these divisions within the administration because they're sort of, as one person put it to me, the policy goes one way and the politics goes the other and the two things are in constant tension.

GROSS: So, in talking about this political battle about how to try alleged terrorists, between Republicans who want military commissions and the Obama administration that wants criminal trials, are there advantages of military commissions? Like, why do Republicans - why do many Republicans prefer the military commissions to the criminal trials?

Ms. MAYER: Well, the standards for evidence are more lenient in the military commissions, and so it may be easier to convict people, though I dont think there's any doubt that Khalid Sheikh Mohammed will be convicted. I mean, he's publicly stated that he's responsible for the attacks in many different forms. So I dont think that's an issue. But another thing that the military commissions can do is they can be more secretive. And so they can hold hearings in a more closed fashion when it comes to national security material. And so the argument is that they won't spill national security secrets, though in truth, the track record, again, for the civilian courts is pretty good on this. There is a process for keeping national security secrets secret.

But I think more than that, there's a symbolic argument for it in the eyes of the Republican Party, which is they want to say that al-Qaida terror suspects are waging war on the U.S. They dont want to treat this as a criminal attack against the United States. It was very important to Bush to say this was war, and it put the United States on a war footing. And so they want to continue to back up the kind of the Bush thinking that this is a war.

And, obviously, there are parts of the world where it is indisputably a war. We have soldiers who are fighting in Afghanistan. Weve got soldiers in Iraq. And in those places, it clearly is war. But what the Obama administration is saying, yes, it's a war, but it's also a crime. And the best way to convict these criminals who are waging war against us is to use the most reliable system weve got, which is the U.S. courts. And so it's something of a symbolic fight.

GROSS: You covered national security during the Bush administration. You wrote extensively about how the Bush administration, led by Vice President Cheney, initiated a lot of polices - some of them not public -about how to deal with alleged terrorists - how it set up a system, how it created, in secret, you know, waterboarding. So the Bush administration accomplished a lot in the sense of moving forward, whether you agreed with it or not, whether it was in public or in secret, they moved forward. It looks, by contrast, the Obama administration is just being stuck every step of the way, stuck in terms of moving forward, in terms of trying alleged terrorists, stuck in moving forward in terms of dealing with the alleged terrorists that the Bush administration left behind.

Ms. MAYER: Well, I dont think that's completely true. In fact, the Obama administration has been arresting and, you know, putting through the legal system a number of terror suspects and getting cooperation from them. There's David Headley, who was arrested in Chicago who is connected to that Mumbai attacks, and he's cooperating with the government. There've been a number of others, as well. And, for instance, I mean, even for all the noise about the Christmas Day bomb suspect, he was stopped - thanks not to the law enforcement by the Obama administration, but he was stopped by the passengers on the plane. And he is now cooperating with the United States government in just the sort of normal way.

So they are moving ahead and they are succeeding in - so far, so good -protecting the country from terrorist attacks. And, you know, and I think, you know, that their record is, so far, no worse than the Bush administration certainly, and in some ways better because they're no longer using things like waterboarding that created a black eye for the country's moral authority and became recruiting tools for al-Qaida.

GROSS: Do you think that the Christmas Day bomber will face the same problems in finding a site for a criminal trial that Khalid Sheikh Mohammed has faced?

Ms. MAYER: You know, I dont know. I think what weve seen really just in the last few days is that the Obama White House has really belatedly woken up to this political problem. And rather than just leaving it unanswered as a fight where the - it was kind of the Republicans took the lead and nobody pushed back, they're beginning to really push back.

So you can see Obama speaking up about it in an interview with Katie Couric. And you can see John Brennan, who handles terrorism on the National Security Council, doing a number of talk shows and saying - he said that, you know, he's really sick of playing political games with things that are very serious and where the Obama administration's handling of terrorists is almost exactly the same as the Bush administration's was. So they're beginning to push back, and that may then make it easier as they move forward to take the Christmas Day bomb suspect, for instance, and try him the usual way.

GROSS: Jane Mayer. Her article in the current edition of The New Yorker is titled "The Trial: Eric Holder and the Battle Over Khalid Sheikh Mohammed." You'll find a link on our Web site:

Coming up, rock critic Ken Tucker reviews Galactic's new funk, jazz, hip-hop album.

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