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Holder: 9/11 Trials Will Weigh ‘Crime of the Century’

November 13, 2009 at 12:00 AM EDT
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In an interview with Jim Lehrer, Attorney General Eric Holder discusses the decision to prosecute the alleged Sept. 11 mastermind Khalid Sheikh Mohammed and four other Guantanamo Bay detainees in civilian federal court in New York, calling the stakes "enormous."
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TRANSCRIPT

JIM LEHRER: I talked with the attorney general this afternoon at the Justice Department.

Mr. Attorney General, welcome.

ERIC HOLDER, U.S. Attorney General: Thanks for having me.

JIM LEHRER: You said this morning that deciding to prosecute these five 9/11 detainees in civilian federal court was a very tough decision for you to make.

Why so?

ERIC HOLDER: The stakes are so enormous. We’re talking about what literally is the crime of the century.

Where should this case properly be housed? How do I deal with the concerns of the victims? Am I placing it in a jurisdiction where we can handle the security? There were a whole series of questions that I had to ask, and answer, before I was able to say that this was the right decision to make.

JIM LEHRER: Who did you consult while making this decision?

ERIC HOLDER: I talked to the prosecutors in the Justice Department, prosecutors from the Department of Defense, people on the staff here at the Justice Department, people at Defense, a whole variety of people, who shared ideas, thoughts, gave cautionary ideas as well, and, using all of that, came up with the decision that we announced just earlier today.

JIM LEHRER: Did you run it by President Obama?

ERIC HOLDER: Just informed him of the decision.

He’s a person who believes that a president’s supposed to have hands off with his Justice Department. He’s a good lawyer. And there are times when I would like to involve him maybe a little more, but his view is that, in those things that are in the province of the attorney general, all he needs to be is informed.

JIM LEHRER: So, you just told him what your decision was; you didn’t say, “What do you think about it, Mr. President?”

ERIC HOLDER: Nope. Told him last night — or had relayed to him what I was going to do last night while he was on Air Force One on his way to Asia.

JIM LEHRER: Did you talk to anybody outside the government?

ERIC HOLDER: I talked to my wife…

JIM LEHRER: Yes? OK.

ERIC HOLDER: … about what she thought. And I actually talked to my brother, who’s a retired Port Authority police officer who served…

JIM LEHRER: Oh, is that right? Yes.

ERIC HOLDER: … in New York, New Jersey, and who lost friends and colleagues on 9/11 in the towers, and talked to them about what — was it appropriate to bring it in New York, the symbolic significance of it, the possibility of getting a good and fair detached jury.

So, those are at least two people I spoke to outside the normal realm.

JIM LEHRER: And you believe these five men can get a fair trial in New York?

ERIC HOLDER: Yes, I think so. I don’t think it’s going to be an easy thing. I think it will take a really extended voir dire by a very skilled judge asking a lot of questions, maybe having to do it on an individual basis.

But I think, if you do all of those things, we can come up with a fair jury.

JIM LEHRER: At your news conference, you left little doubt that, in your mind, at least, based on your study of the situation, you believe these men are guilty, correct?

ERIC HOLDER: Well, I certainly think that the evidence that we have uncovered, a lot of which has not been made public or people are not aware of, will allow us to be successful in the prosecution of these cases.

JIM LEHRER: Now, Khalid Sheikh Mohammed has confessed, correct?

ERIC HOLDER: He has indicated in a number of contexts that he was involved.

JIM LEHRER: Have the other four also confessed?

ERIC HOLDER: Well, that’s one of the things that we will be introducing at trial, a variety of statements and evidence that we think will be pretty conclusive.

JIM LEHRER: Is there anything that has led you to believe that their confessions, if, in fact, they are confessions, will be accepted up and down the legal chain, from district court all the way to the Supreme Court, if it goes there — that far?

ERIC HOLDER: Well, that was one of the things that I had to consider.

What was the source of this information that comes from them? How was it elicited? Will it stand judicial scrutiny? And taking that into account and taking the other sources of information that we have. And that, as I said, has not necessarily been revealed to the public. I’m confident that we will have sufficient evidence to successfully prosecute these cases.

JIM LEHRER: Well, Mohammed was water-boarded, was he not?

ERIC HOLDER: He was.

JIM LEHRER: And did he confess as a result of that? And is that going to be part of the evidence against him?

ERIC HOLDER: Well, I think, that, we will have to see at trial. I don’t know what motions the defense will make. I don’t want to speculate about that. But we are prepared to handle those kinds of motions and rely on evidence that is not in any way tainted.

"What we have here is a conspiracy"

Eric Holder
Attorney General
I think that we are going to be able to successfully prosecute all five of them.

JIM LEHRER: Now, Mohammed is -- and you have said it again this morning, and it's all part of the public record -- that Mohammed was the brains behind the 9/11 attack.

What about the other four? What, in general, did they do to participate in the 9/11 attacks?

ERIC HOLDER: They played a variety of roles, all designed to effectuate the plot.

Khalid Sheikh Mohammed was clearly the person I guess we would call the mastermind. But they all -- the other ones all played key roles or are equally culpable and we think ultimately worthy of the ultimate penalty, the death penalty, as I indicated in the news conference.

JIM LEHRER: And you believe also that they should be tried together, right, not individually?

ERIC HOLDER: I think that we what we have here is a conspiracy among these five men to bring down the towers, to hijack those airplanes, and to do all the things that happened on September the 11th. They worked as a team.

JIM LEHRER: Now, go back to your thought processes, back to your decision-making.

Did you consider the possibility -- you say they're going to have a fair trial. A fair trial means that there's going to be a defense. A fair trial means, of course, that people can challenge things on technical and legal grounds, every piece of evidence, including, as I just mentioned, the confessions, whatever they may be, whatever statements have been made.

You must have considered the possibility, at least, that one or all four or five of these people could be judged innocent. Did you?

ERIC HOLDER: Well, you know, you look at these cases, and that's one of the things that you have to decide. Is it likely that one of these people, all of these people are ultimately going to be found not guilty?

There are certain standards that you have to reach in any Justice Department-brought case. And the standards, the level at which that bar is set, I thought, was met here, I thought it was exceeded here. And I think that we are going to be able to successfully prosecute all five of them.

JIM LEHRER: But did you consider the possibility, as remote as you think it is, that they could be, in fact, turned loose, found not guilty? And then what happens?

ERIC HOLDER: Well, sure, that was a part of the process I went through, looking at the evidence, trying to see, what would be the rejoinders to the evidence that we would introduce? Is there a possibility that they might be found not guilty? How do we handle the defenses that will be brought up?

And, at the end of that process, at the end of my analysis, with the gut that I have as a career prosecutor, my determination was that we will be successful.

JIM LEHRER: But there's also -- beyond the prosecution, there's also an appeal process that goes to -- you know, could go all the way to the United States Supreme Court. There could be legal technicalities. Did you explore that, too?

ERIC HOLDER: Oh, absolutely. I have had the Solicitor General's Office in on at least a couple of issues.

We have talked to the appellate people in both the Eastern District of Virginia and the Southern District of New York to examine: Let's assume that these people are convicted. And let's imagine how the trial will proceed. What are the kinds of appellate issues that we're going to have to deal with, and how do we handle those in the trial setting, so that we minimize the possibility that an appellate court would overturn a successful prosecution?

A show trial?

Eric Holder
Attorney General
This is a case that will be treated as any other criminal case.

JIM LEHRER: Did you consider the idea that people might suggest that this is, in fact, going to be a show trial, in other words, that you already know these guys are guilty, and you are -- you are banking on the certainty that they're going to be, not only found guilty, but probably given the death penalty, and this is just kind of a thing to show the American people and the rest of the world, this is how we do it?

ERIC HOLDER: No, it's not a show trial at all.

I mean, we will -- this is a case that will be treated as any other criminal case. Some are stronger than others. We will present our evidence. They will have a chance to challenge that evidence. A jury of 12 detached people will ultimately make the determination about guilt or innocence, and then a penalty phase as well.

There's nothing with -- a show about this. This is something that is consistent with the way all trials are handled within the United States' judicial system.

JIM LEHRER: But, Mr. Attorney General, is it possible to find any American who would be considered detached from what happened on 9/11?

ERIC HOLDER: Yes, I think we can.

It's not a question of not having knowledge of the 9/11 facts or what happened on that day, but having an ability to detach from your mind what happened on that day as you assess the evidence, as you assess the law as it's given to you by the judge, and rendering a verdict only on the basis of what is presented to you in that courtroom.

And I think you can do that. There have been other high-profile cases that have been tried in a variety of locations where I think defendants have been given fair trials. And I think that can happen here. I think it will happen here.

Potential risks of a trial in N.Y.

Eric Holder
Attorney General
New York has also done a number of these trials in the past, has a track record for doing these high-profile terrorist trials.

JIM LEHRER: Now, New York, your decision to try these five men in New York -- you said you talked to your brother, who, of course, had -- lives in New York, is a law enforcement officer himself. Did you consider the possibility of -- that every al-Qaida person in the world, freelancer, as well as any other kind, is going to target New York and the courthouse where these people are going to be tried? Particularly if the death penalty is on the table, nobody has anything to lose. Are you consider -- you clearly considered that, did you not?

ERIC HOLDER: Well, we certainly had to take into consideration the security concerns that you're talking about.

And one of the things that's attractive about New York is that they have a really hardened site down there, both in terms of where the defendants would be housed during the trial, a very hardened courthouse itself, a means by which they can be transported from the jail to the courthouse through tunnels, so that they never have to see the light of day.

New York has also done a number of these trials in the past, has a track record for doing these high-profile terrorist trials. And I feel confident that we have under control the security considerations. I actually asked the Marshals Service to look at a number of sites, then tell me, which one do you think is going to be best? Which one's going to be the safest to bring these cases? And they said, New York was the place to do it.

JIM LEHRER: But, beyond that, did you also explore with other agencies in government, like the Central Intelligence Agency and other intelligence sources, about the possibility of al-Qaida folks targeting this? And do they have the capability of doing certain things and reacting to -- because that trial is going to last for weeks, maybe months.

Did you deal with that, as well, in your -- in your thought processes, in your decision-making?

ERIC HOLDER: Well, every morning, at 8:30, I get a briefing on what the 24 -- the past 24-hour threat stream looks like. And, so, we have a good sense of where people are in the world, what it is they are planning.

I mean, we have seen recently the Zazi case, the Headley case, where we have uncovered plots. And I'm confident that our intelligence capability is up to detecting those kinds of plots. And should they -- anybody decide to direct a plot at the trial, during the conduct of it, or before, I think there we're going to be in a position to detect it and then to handle it.

JIM LEHRER: But you coped with the thought of your decision creating a big red bullseye for every terrorist in the world?

ERIC HOLDER: Yes, it's a thought that I had, but I have also talked to the local officials there. I talked to Mayor Bloomberg. I talked to Governor Paterson. And Mayor Bloomberg especially said: "You know, this is the place where this case ought to be brought. We can handle it."

I know Ray Kelly, the police commissioner there. I worked with him when I was in the deputy attorney general in the Clinton administration. They have got good, capable people, a great police force. They will work with their federal counterparts to ensure that the people of New York are safe while this is going on.

JIM LEHRER: Was it a close call for you?

ERIC HOLDER: That's a good question.

It was a difficult call, because there were other places where the case could have been held, in the Eastern District of Virginia, potentially in Pennsylvania. And, at the end of the day, it was one that I had to take into a whole variety of things, and using the protocol that we have with the Department of Defense to come up with New York as the appropriate venue.

It was not easy, though.

JIM LEHRER: Yes.

Was it a close call to do it the civilian route, rather than the military tribunal route, as you're doing in the other cases?

ERIC HOLDER: Well, again, we used the protocol there to decide, individualized determinations, looking at -- in trying to apply normal criminal law, you want to hold trials generally in the place where the crime has occurred.

And that, for me, was a big factor, to bring these people to potentially to justice in the place where they committed these heinous acts, in New York, in lower Manhattan.

I know that complicates the trial a bit in terms of picking a jury, but that symbolism seemed important to me. I'm a native New Yorker. You know, I saw those buildings go up. I spent a lot of time there.

And it just seemed to me that New York is what sticks most in people people's minds when they think about the events of September the 11th, which is not to take away from what happened at the Pentagon or what happened in Pennsylvania. But to bring them to justice in that place, I thought, was significant.

JIM LEHRER: So, symbolism did play a part in your decision?

ERIC HOLDER: Sure. It was at least a part of it. I mean, I had to look at the cold hard facts, the cold hard law. There's an emotional component to it. There's a symbolic component to it. All of this was a part of the mix that went into the decision that I made.

Closing Guantanamo

Eric Holder
Attorney General
Finding other countries to take them is the thing that I think is going to really hold us up. And it may extend our time beyond January 22.

JIM LEHRER: Now, the decision, how does it affect now -- what -- how many people will still be at Guantanamo? There will still be over 200, correct?

ERIC HOLDER: Yes, I think that's about right, maybe in the high 100s or so who are still there. Many of them have already gotten transfer decisions. And we're just waiting to try to place them. So, we have people who are waiting to be transferred, some who we're still in the process of trying to make decisions as to whether they will be tried in federal courts or in military commissions.

That process is ongoing. We expect to have it done, I would say, in the next couple of weeks.

JIM LEHRER: So, there could be more trials like the ones that you're planning in New York, right, I mean, in the civilian federal district courts?

ERIC HOLDER: I expect that we will be announcing additional trials, both in the federal district courts, as well as military commissions. And we ought to be doing that pretty -- pretty soon.

JIM LEHRER: Is there a timeline now for when Guantanamo will actually, in fact, be closed?

ERIC HOLDER: July 22 is still our target date, but it's going to be a difficult...

JIM LEHRER: January 22.

ERIC HOLDER: I'm sorry. January 22...

JIM LEHRER: January 22, yes.

ERIC HOLDER: ... is -- is still our target date.

It's going to be difficult, given our ability to try to move these people who have already been approved by our various review boards to be transferred to other countries. Finding other countries to take them is the thing that I think is going to really hold us up. And it may extend our time beyond January 22.

JIM LEHRER: Extend it considerably? Months? Years?

ERIC HOLDER: No, I don't think so.

We're getting a pretty good response from our allies around the world. We have a guy, Dan Fried, who -- at the State Department -- who must have more mileage credits than anybody on Earth, who's been going really, literally, around the world, trying to find places for these people. And we're getting positive responses from -- for me, at least, some surprising places.

JIM LEHRER: OK.

Finally, speaking of that, Greg Craig, White House counsel, that was his mandate from President Obama, was to take care of this. And he resigned today, on the same day of these announcements. Any connection?

ERIC HOLDER: No, no connection.

This was a team effort, always, to try to close Guantanamo, bring people to justice. Greg was an instrumental part of that team. To the extent that we missed deadlines, to the extent that things have not gone right, it is not only on his shoulders.

This was either a team success, or, if there are problems, they are team problems. And, so, to single him out is something that is unfair. He's a great lawyer and has been a great addition to this president's team.

JIM LEHRER: Just a coincidence of timing?

ERIC HOLDER: Really. Yes, there was no connection whatsoever.

JIM LEHRER: OK.

Mr. Attorney General, thank you.

ERIC HOLDER: Well, thanks for having me.