JIM LEHRER: Next tonight: tough questions for Attorney General Eric Holder over trying the 9/11 suspects in New York City. He faced them today at a hearing of the Senate Judiciary Committee. NewsHour congressional correspondent Kwame Holman has our report.
KWAME HOLMAN: It was the attorney general`s first appearance before Congress since he announced last week that Khalid Sheikh Mohammed and four other suspects would be tried in federal district court in Manhattan.
Mohammed claimed direct credit for masterminding the airliner attacks of September 11. The others allegedly helped train and finance the attackers. But the partisan divide over Holder`s decision was obvious in opening statements by committee leaders.
SEN. PATRICK LEAHY. D-VT., judiciary committee chairman: They committed crimes of murder in our country, and we will prosecute them in our country.
SEN. JEFF SESSIONS, R-Ala.: Khalid Sheikh Mohammed is a terrorist — is alleged to be a terrorist. The correct way to try him is by military tribunal.
KWAME HOLMAN: In his opening statement, the attorney general laid out the thinking that went into his decision.
ERIC HOLDER: I am a prosecutor. And, as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case and the best law. We need not cower in the face of this enemy. Our institutions are strong. Our infrastructure is sturdy. Our resolve is firm, and our people are ready.
KWAME HOLMAN: Under questioning, Holder played down Republican concerns that Mohammed might not be convicted and whether he would be free to go if he’s found not guilty.
ERIC HOLDER: Failure is not an option. This — these are cases that have to be won. I don’t expect that we will have a contrary result.
SEN. CHARLES GRASSLEY, R-Iowa: I don’t know how you can make a statement that failure to convict is not a — an option.
Failure is not an option
ERIC HOLDER: I have thought about, you know, that possibility. And one of the things that this administration has consistently said, in fact, Congress has passed legislation that would not allow for the release into this country of anybody who was deemed dangerous.
KWAME HOLMAN: Holder clashed with Republican Jon Kyl of Arizona when Kyl pointed out Mohammed already had agreed to plead guilty to a military tribunal.
SEN. JON KYL, R-AZ, minority whip: How could you be more likely to get a conviction in federal court, when Khalid Sheikh Mohammed has already asked to plead guilty before a military commission and be executed?
ERIC HOLDER: I don't know what Khalid Sheikh 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. He will not select the prosecution venue. I will select it. And I have.
KWAME HOLMAN: Republicans also argued there is considerable public concern about bringing the detainees to the U.S. mainland and about the potential financial and emotional costs of a trial. And there was more.
SEN. LINDSEY GRAHAM, R-S.C.: I'm telling you right now, we're making history, and we're making bad history.
KWAME HOLMAN: South Carolina`s Lindsey Graham raised concerns that giving the suspects legal rights in criminal courts will undermine efforts to get them to tell what they know.
LINDSEY GRAHAM: You've made a fundamental mistake here. You have taken a wartime model that will allow flexibility when it comes to intelligence gathering, and you have compromised this country's ability to deal with people at war with us.
'Symbol of American justice'
KWAME HOLMAN: Even before the attorney general arrived here at the Capitol, President Obama already had weighed in, before leaving China. In a series of interviews, he gave his answer to those who have taken offense at trying Khalid Sheikh Mohammed and the others in a federal court in New York.
BARACK OBAMA: I don't think it will be offensive at all when he is convicted and when the death penalty is applied to him. People will not be offended if that's the outcome. I'm not prejudging, and I'm not going to be in the courtroom. That's the job of the prosecutors, the judge, and the jury.
KWAME HOLMAN: For the most part, Judiciary Committee Democrats at today's hearing agreed with the Justice Department's decision. Maryland's Ben Cardin:
SEN. BEN CARDIN, D-Md.: It gives us an established process that has been used before. It gives us the credibility of our system, which is internationally understood and -- and respected. And it gives us the ability to showcase that we are using the American values to hold the terrorists responsible.
KWAME HOLMAN: And Illinois` Dick Durbin said few Republicans complained when Zacarias Moussaoui, the alleged 20th hijacker of 9/11, was tried and convicted in federal court in Virginia.
Durbin quoted former New York Mayor Rudolph Giuliani, who opposes the upcoming trial in New York, but praised the Moussaoui trial.
SEN. RICHARD DURBIN, D- Ill.: He said, "At the same time, I was in awe of our system. It does demonstrate that we can get people a fair trial, but we are exactly what we say we are. We are a nation of law." I think he's going – it's going to be a symbol of American justice.
KWAME HOLMAN: Relatives of some of the 9/11 victims attended today`s hearing. Some said the 9/11 suspects don't deserve the same legal rights as U.S. citizens.
In turn, Rhode Island Democrat Sheldon Whitehouse cautioned against holding prosecutors accountable to public opinion. He called it "a very dangerous bellwether." For now, the transfer of suspects to New York still is many weeks away. And there's no indication of when the trial might begin.