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Holder: 'Failure not an option' in New York 9/11 terror trial

But Attorney General Eric Holder also told senators Wednesday that accused 9/11 mastermind Khalid Sheikh Mohammed could be detained indefinitely if acquitted in a New York terror trial.

By Staff writer of The Christian Science Monitor / November 19, 2009

Attorney General Eric Holder testifies on the trials of Guantánamo Bay detainees before the Senate Judiciary Committee on Capitol Hill in Washington, Wednesday.

Kevin Lamarque/Reuters


Attorney General Eric Holder told the Senate Judiciary Committee on Wednesday that "failure is not an option" in the prosecution of accused 9/11 mastermind Khalid Sheikh Mohammed in a New York City courtroom.

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But he also acknowledged that the Obama administration may shift an acquitted terrorist back into open-ended military detention rather than allow him to walk free.

Mr. Holder made the comments in response to questions about whether he had considered the possibility of an acquittal.

"What I told the prosecutors and what I will tell you is that failure is not an option. These are cases that have to be won," Holder said. "I don't expect that we will have a contrary result."

The comment prompted a sharp response from Sen. Charles Grassley (R) of Iowa. "I don't know how you can make the statement that failure to convict is not an option when we have juries in this country," Senator Grassley said. "I'm a farmer not a lawyer, but I just want to make that observation."

The exchange with Grassley came during nearly four hours of testimony by the attorney general during an oversight hearing.

Delay in closing Guantánamo

Holder echoed President Obama's statement earlier Wednesday that the administration would not be able to close the Guantánamo detention facility by the announced Jan. 22 deadline.

The attorney general said the primary holdup is finding countries willing to accept detainees for transfer from Guantánamo. But he estimated the prison camp would close within a year. There are currently 215 detainees at Guantánamo.

At the top of the Judiciary Committee's agenda were questions about Holder's decision to try Mr. Mohammed and four others in New York.

"I knew this decision would be controversial," the attorney general said. "This was a tough call, and reasonable people can disagree with my conclusion."

In general, Republican senators on the committee were critical of Holder's decision. Several said the better option is to try Mohammed in a military commission. Democrats, on the other hand, emphasized that the federal court system is robust enough to hold alleged terrorists responsible for their crimes.

Would a military setting be better?

Sen. Jon Kyl (R) of Arizona asked Holder how a trial in New York would improve on a military commission process in which Mohammed had already expressed his desire to plead guilty and be executed.

Holder bristled at the question. He said his decision did not depend on the "whims and decisions" of Mohammed. "That was then; I don't know what Khalid Sheikh Mohammed wants to do now. And I am not going to base this on what a terrorist, what a murderer, wants to do," Holder said.

Senator Kyl questioned how it could be easier to win a conviction in federal court than in a military commission with its more lenient rules of evidence.