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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.

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The attorney general said it wasn't clear that a military judge would be more likely to admit the government's evidence. And he stressed that it wasn't clear that a military commission would be as likely as a federal trial to withstand the close scrutiny of an appeals court.

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Indefinite detention a possibility

Holder was repeatedly questioned about the prospect of an acquittal. He was reluctant throughout much of the hearing to say so, but ultimately he acknowledged that in the event of an acquittal in a terror trial the administration might consider shifting a defendant back from the criminal justice system into open-ended military detention.

"Under the regime we are contemplating ... the ability to detain under laws of war, we would retain that ability," Holder said.

Sen. John Cornyn (R) of Texas asked Holder what the administration would do if a federal judge ordered the release of Mohammed.

"We have taken the view that the judiciary does not have the ability to require us to release [people held overseas]," Holder said. He added that the administration retained other options that would prevent Mohammed's release. "There are other things that we can do with him."

Senator Cornyn pressed the question. The US Supreme Court has ruled that the government cannot detain individuals indefinitely, he said.

"You can certainly hold people in connection with matters that are pending, and we have the capacity to make sure that Khalid Sheikh Mohammed is not released into the United States," Holder responded.

Later, Cornyn returned to the issue, asking whether Holder was concerned that a judge might rule that once the US government elects to try a suspected Al Qaeda member as a criminal, the government might be barred from reverting to the laws of war and open-ended military detention without charge.

"Under the congressional provisions that we have and the laws of war ... you cannot, perhaps, indefinitely detain somebody, but you certainly can detain somebody for lawful reasons," he said.

Holder promises 'taint-free' evidence

Holder said he doubted Cornyn's hypothetical would become reality. The government has a strong case and will rely at trial on a new, taint-free trove of evidence, he said.

"The trials that we will bring will not only be based on admissions and confessions, there are other ways we will prove the guilt of people we've charged," Holder said.

"There is really, from my perspective, very compelling evidence that probably won't be revealed until we are in a trial setting," he said.

"At some point an assistant US attorney will reveal that which I cannot talk about now," Holder told the senators. "It is compelling, it is not tainted, and I think will prove to be decisive in this case."

See also:

New York divided over 9/11 terror trials

Holder in the dock as critics focus on New York 9/11 terror trial

Khalid Sheikh Mohammed 9/11 trial carries risks

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