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.
But Sen. Joe Lieberman, Connecticut independent and chairman of the committee, did not. His committee is going forward with hearings that he and ranking member Sen. Susan Collins, Maine Republican, hope will “connect the dots” to determine whether the shooting could have been prevented.
“We know violent Islamist extremism is a threat here in the U.S. and the military is a particular target of that threat,” Mr. Lieberman said during a press conference Wednesday. “I believe it was a terrorist act, the most destructive on America since September 11.”
The committee will hear from terrorism, law enforcement, and military experts, but will not receive testimony from administration officials or members of an FBI-led Joint Terrorism Task Force that failed to pursue a full investigation into reports that Maj. Hasan had been in contact with a radical Muslim cleric.
“Was there a failure to connect the dots?” Miss Collins asked. “The shootings at Fort Hood appear to demonstrate that communication failures and poor judgment calls can defeat systems intended to ensure that vital information is shared to protect our country and our citizens.”
The House Homeland Security Committee, unlike Mr. Lieberman’s panel, bowed to the administration’s request to refrain from holding hearings. But that did not sit well with its ranking member, Rep. Peter T. King, New York Republican.
“We don’t have the luxury of waiting until the administration finishes its own investigations,” Mr. King said. “I see this as an attempt to keep Congress from exposing what happened there. We need to have hearings.”
Other Republicans continued the drumbeat of criticism Wednesday, with former New York City Mayor Rudolph W. Giuliani saying the Obama administration has put the country on a vulnerable, defensive footing against terrorism.
“It sends a signal to the terrorists that we are not taking this as seriously as we did before,” said Mr. Giuliani, a former Republican presidential hopeful. He said the decision to conduct civilian trials demonstrates that Mr. Obama does not consider the fight against terrorism a real “war.”
“I think that puts us in a very vulnerable position, not just in New York, but in general, domestically [and] internationally.”
• S.A. Miller contributed to this report.