During a Wednesday hearing in which he defended the Obama administration's record on prosecuting terror suspects, Attorney General Eric Holder told the Senate Judiciary Committee that a New York City trial for 9/11 mastermind Khalid Sheikh Mohammed was still an option.
Asked by Senator Jeff Sessions, R..-Ala, ranking minority member on the committee, when the Obama administration would decide on a venue for the trial, Holder said, "New York City is not off the table."
The Attorney General also clarified his earlier, much-publicized remarks about not catching Osama Bin Laden alive, saying it was still policy to capture or kill bin Laden if possible, and defended the Justice Department's handling of underwear bombing suspect Umar Abdulmutallab.
Holder denounced efforts by conservatives to "drag [through] the mud" the names of Justice Department lawyers who had represented Guantanamo Bay detainees. Yet he acknowledged that despite the Obama administration's intention to shut down "Gitmo," it might not be possible unless Congress authorizes funding for its replacement.
In his prepared testimony, Holder said the administration was still deciding what to do with five 9-11 coconspirators who are now in U.S. custody.
"No final decision has been made about the forum in which Khalid Sheikh Mohammed and his codefendants will be tried," said Holder. "As I've said from the outset, this is a close call."
Holder also said that other venues within the federal court system's Southern District of New York were also a possibility.
Sen. Sessions later told the Attorney General, "I don't think the people of New York want this trial anywhere near New York ... or in the District.
Pressed by Sen. Chuck Schumer, D.-N.Y., Holder said the administration is taking into account the opposition of New York City Mayor Mike Bloomberg, other city officials and most of the New York Congressional delegation.
While Holder's comments are technically true, according to Administration officials, the trial is almost certainly not going to happen in downtown Manhattan. The Attorney General is keeping his options open and maintaining New York is still an option as the administration narrows a final list of places where a trial could take place in a civil setting or military commission.
"We know the administration is not going to hold the trial in New York," said Schumer in a paper statement. "They should just say it already."
In testimony, Holder also clarified what he told a House committee in March about the possibility of capturing Osama Bin Laden alive. In March, Holder said Bin Laden would not be captured alive, and that if he were found, U.S. soldiers would be reading Miranda rights to a corpse.
On Wednesday, Holder told the Judiciary Committee, "Our goal is to either capture Osama bin Laden or to kill him."
"What I said in that [March] hearing was an assessment of, I think, the likelihood that we're going to be able to capture him alive. What I said was that, with regard to that possibility…I see it's highly unlikely that he will be taken alive." said Holder, citing what the U.S. knows about the security forces around Bin Laden. Later he added that if Osama Bin Laden were captured alive, Bin Laden would not be read his Miranda rights.
Holder defended the way the FBI and the Justice Department had treated Umar Abdulmutallab, who is charged with attempted to blow up Northwest Flight 253 on Christmas before it landed in Detroit. The FBI has been criticized for reading Miranda rights to Abdulmutallab, a Nigerian citizen who was allegedly acting in support of Al Qaeda. Sen. Sessions told Attorney General Holder that his "actions had shaken my confidence."
"We have obtained the cooperation of [Abdulmutallab]," said Holder. "Although I obviously cannot discuss the intelligence he provided, I can tell you that it has not just been valuable, but actionable."
Asked by Sen. Sessions if there was a "presumption in favor of civilian trials" under the Obama administration, Holder noted that in November he had actually sent more cases to military commissions than to courts.
But Holder also said that both the Bush administration and the Obama administration had found the legal system an effective means for prosecuting terror suspects. According to Holder, since 9/11 there have been 240 convictions for terror-related crimes in the court system.
The Attorney General reiterated the intention of the Obama administration to close the Guantanamo Bay Detention facility.
"There was, and I think still is," said Holder, "maybe not to the degree that it once existed, bipartisan support for the notion that the Guantanamo facility should be closed."
The administration wants to move the remaining 48 detainees to a prison in Illinois. Holder conceded that the move could not be made unless Congress acts.
"We will close Guantanamo as quickly as we can, as soon as we can." Holder said. "We have in our budget for next year funds in order to come up with another facility to which these people might be transferred, those who cannot be repatriated. And we would like to move on that plan, but we need congressional support."
The Attorney General seemed irked when asked about Justice Department lawyers who had previously represented Guantanamo detainees. The names of the attorneys have been disclosed on Fox News, and in a television ad created by a group called "Keep America Safe" that refers to the lawyers as "The Al Qaeda 7."
"There has been an attempt to drag their names through the mud," said Holder. "I will not allow good decent lawyers, who did what John Adams did . . . I will not allow their reputations to be besmirched."