Shortly after Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other alleged masterminds of the 9/11 attacks will stand trial in a New York City criminal court, he went to Capitol Hill to explain his decision at a Senate hearing.
One after another, senators quizzed him about his choice to forego the military's tribunal system. Holder insisted he would have a better chance of convicting the terrorists in a federal court, despite its stricter rules about evidence obtained under duress or from hearsay. But a question from Sen. Herb Kohl, a Democrat from Wisconsin, left Holder with no real answer. "In the worst case scenario that the trial does not result in a conviction, what would be your next steps?" Kohl asked.
Holder told Kohl, "Failure is not an option. These are cases that have to be won."
Politics Daily interviewed senators in the days following Holder's testimony and found them bitterly divided over what would happen if, as Kohl suggested, the "worst-case scenario" occurred and the terrorists were set free by the civilian court.
"How do you control 12 jurors?" Sen. Charles Grassley (R-Iowa) asked. "Twelve jurors will make that judgment. It should have been left in the commissions and should have been left at Guantanamo."
Sen. John Cornyn (R-Tex.), agreed. "With all due respect, the attorney general does not have a clue." Cornyn then warned, "If I were the attorney general, I would worry about being the fall guy if this heads south, which it will."
But the committee's chairman, Sen. Patrick Leahy (D-Vt.), rejected the criticisms. "I don't know why everybody is being so frightened. These are murderers. We prosecute murderers."
Sen. Frank Lautenberg (D-N.J.) said he is confident that the federal courts can handle the cases. "I am sure it will be very effectively done," he said. "I think it shows strength, not weakness."
Ben Wittes, a senior fellow at the Brookings Institution, said that Holder's confidence is misleading. "Holder is clearly talking nonsense when he says failure is not an option," Wittes said. "Adverse outcomes can happen, and I am certain that within the Justice Department, they don't consider it a zero possibility that this case will get totally out of control."
But Wittes also said that trying Mohammed and the other detainees in military tribunals could carry as many risks as the civilian courts. "The way this gets presented on the Hill is that there is one risky option -- bringing them here for trial in the U.S. civilian court -- and there's one tough, strong option, which is military trial by a military commission," he said. "There are two risky options; they have different risks."
Although the civilian courts could throw out evidence against Mohammed obtained from torture or based on hearsay, Wittes said the military tribunal system itself has "underperformed" since the 2001 attacks. He also said that any outcome from a tribunal could be endangered later by a legal challenge in the Supreme Court. "Everybody expects that the government is going to have to defend the lawfulness of a military commissions," he said. "If you're going to conduct one of the trials of the century, there is some security in not having to litigate over the integrity of the tribunals."
While military commissions have heard just three terrorism-related cases since 2001, the federal government had filed 119 criminal court cases against 289 people accused of terrorism-related crimes and associated with al-Qaida or other Islamist extremist groups. According to a study conducted by former federal prosecutors for the nonpartisan advocacy group Human Rights First, the conviction rate of terror-related cases in civilian courts was 91 percent.
The 9/11 trials would make history, however, because the five detainees would become the first enemy combatants captured overseas and brought to the United States for a federal trial.
No matter the outcome of the federal trials, legal scholars said that all five accused terrorists would likely be detained indefinitely by the government since their legal status as enemy combatants would not change after a trial. The Department of Justice can also try them for additional crimes or even bring them up on immigration charges, since they will have no legal immigration status in the United States.
Sen. Richard Durbin (D-Ill.) said he does not worry about the terrorists walking free. "The commander in chief still has the authority to hold dangerous people as long as they're a danger to America," he said. "So no one is going to be released. The president is not going to endanger the United States by releasing someone who could hurt us."
But Cornyn slammed the proceedings as "show trials" and asked, "If you can detain them forever, why are we trying them?"
Grassley said that Holder's decision reveals the philosophical divide between Republicans and Democrats in fighting terrorism. "It's a point of view that the war on terror really is a real war," he said. "And if it's not a war, then these people are common criminals. But they're not common criminals; they're what the Geneva Convention says they are -- enemy combatants."
Holder did not speculate about when a trial would occur, but he has already encountered challenges from members of Congress on both sides of the aisle. Sen. Lindsey Graham (R-S.C.), a JAG instructor in the Air Force Reserves, reintroduced a bill Saturday to cut off funding for criminal trials related to the planning of the 9/11 attacks, while Rep. Ike Skelton (D-Mo.), chairman of the House Armed Services Committee, wrote to Holder, saying his decision "raises many serious questions" that he would like Holder to address in a full committee briefing.
David Laufman, a partner at the Washington law firm of Kelley Drye, served as lead trial counsel in the government's successful prosecution of Ahmed Omar Abu Ali (accused of plotting to assassinate President George W. Bush) in 2005 and also worked in the Bush administration. "This isn't the government's first rodeo," he said. "The prosecutors in the Southern District are people who are experienced in terrorism prosecutions."
Laufman also said that he senses much of the criticism of the trials masks a larger issue. "If what these critics really mean is that the detainees are not entitled to any kind of a fair trial proceeding, then that might be a position that has a certain appeal to certain people," he said. "But that's very different from trying to choose between two systems of justice."