- The Washington Times - Thursday, November 19, 2009

Attorney General Eric H. Holder Jr. let stand Wednesday a claim that confessed Sept. 11 mastermind Khalid Shaikh Mohammed will remain in U.S. custody even if he is acquitted in the so-called “trial of the century” scheduled for a New York courtroom.

The claim arose during a tense Senate Judiciary Committee hearing, at which Mr. Holder defended from a storm of Republican criticism his decision to bring five suspects in the Sept. 11 attacks to trial in New York.

“It’s my understanding that if [Mohammed] is not convicted, and somehow the judge lets him off on a technicality or something, then he becomes an enemy combatant, and then you are right back where you started,” said Sen. Charles E. Grassley, Iowa Republican. “So what do you gain?”

Mr. Grassley moved on to another topic without waiting for a reply, and Mr. Holder did not return to the question, though he did say elsewhere in the hearing that he is convinced Mohammed will be convicted.

But the assertion raises questions whether the trial will send the powerful message about America’s legal values that Mr. Holder has said it will.

President Obama also said Wednesday that he expects Mohammed to be convicted and executed, statements that could be used by the defense to argue that the suspects cannot receive a fair trial. There also likely will be major problems in selecting an impartial jury in New York, where almost 3,000 people died in the attacks and almost every resident was affected in some way.

“Failure is not an option,” Mr. Holder said of the prospect that Mohammed might not be convicted. “These are cases that have to be won. I don’t expect that we will have a contrary result.”

Several senators argued that it would be better to try to suspects in the military commissions that were created during the Bush administration.

“How could you be more likely to get a conviction in federal court, when Khalid Shaikh Mohammed has already asked to plead guilty before a military commission and be executed?” asked Sen. Jon Kyl, Arizona Republican, to applause from some in the audience. “How could you be more likely to get a conviction in [a federal court] than that?”

“That was then. I don’t know what Khalid Shaikh Mohammed wants to do now. And I’m not going to base a determination, on where these cases ought to be brought, on what a terrorist - what a murderer - wants to do,” Mr. Holder responded forcefully. “He will not select the prosecution venue. I will select it. And I have.”

Mr. Holder also denied charges made during Wednesday’s hearings and by Republicans for the past several days that the decision to try Mohammed proves that the Obama administration views terrorism as a criminal matter and not a war.

“I know that we are at war with a vicious enemy,” Mr. Holder shot back. He remained steadfast that prosecuting the architects of the attacks sends a powerful message about America’s legal values.

The administration remains in Congress’ cross hairs Thursday, when the Senate Homeland Security and Governmental Affairs Committee will hold a hearing into whether military and law enforcement officials missed troubling signs about Maj. Nidal Malik Hasan before the massacre earlier this month that left 13 dead and dozens wounded at Fort Hood in Texas.

As with the Mohammed decision, Republicans and national-security hawks in the Democratic Party have used the Fort Hood shootings to paint the Obama administration as feckless in the fight against Islamist terrorism.

Mr. Obama has urged members of Congress to delay hearings into the shootings, saying members of the administration will not participate. Democrats in the House and Senate have agreed to stand down.

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