Attorney General Eric Holder came under fire Thursday from a Republican Congressman who said Holder and President Barack Obama had tainted the possibility of a fair trial for Khalid Sheikh Mohammed by publicly indicating that the alleged 9/11 ringleader would be convicted and put to death.
At an oversight hearing, Rep. Trent Franks (R-Ariz.) challenged Holder over his statement that “failure is not an option” and over Obama’s comment in an interview last November that those skeptical of the idea of a civilian trial would be convinced “when he's convicted and when the death penalty is applied to him.”
“You, as the attorney general of the United States, and certainly Mr. Obama, must know that KSM and his co- conspirators are afforded in our civilian courts the presumption of innocence,” Franks said.
Holder said his comment was not guaranteeing an outcome but trying to focus the prosecution team on the importance of their task.
“Maybe I can clear this up once and for all,” Holder said. “When I said failure is not an option, that was not a prediction about the course of the trial. It was from my perspective an exhortation [in] the way in which a coach talks to his players and tells them, you guys got to go out there and win this game, because failure is not an option. And that's what I was saying.”
However, Franks said he was concerned that the president’s comments and other statements about holding the defendants even if they were acquitted gave an opening to defense lawyers and created headaches for the courts.
“You put a judge in the impossible position of either trying to do what's right and protect the country or break the rules as a judge,” Franks insisted. “If you're a defense attorney there, you've got a plethora of options to try to undermine the trial.”
Holder, a former judge, said he didn’t think it would be tough to find a jury that hadn’t heard those statements or could set them aside.
“I'm sure that you could find people who would be able to judge this case based on only the evidence and testimony that was introduced during the course of the trial,” the attorney general said. “The notion that somehow, some way, something that I have said has so tainted a jury so tainted a potential jury pool that we would not be able to give Khalid Sheikh Mohammed and his confederates a fair trial I think is belied by the facts that we've done this in the past with high-profile terrorism cases in the Bush administration.”
Franks made clear that he wasn’t advocating for the prisoners but pointing out what he viewed as the downside of the Holder’s decision to try the alleged Al Qaeda operatives in federal court in New York. After local officials, businesses and lawmakers objected, the administration backed away from Holder’s plan and is considering whether to try the men elsewhere, possibly in a military commission.
Franks called the decision for a New York trial “incredibly misguided.”
“It just seemed like a terrorist's dream,” he said.
Despite the recent attempted bombing in Times Square, Rep. Anthony Weiner (D-N.Y.) reiterated his backing for having a trial in New York. However, he expressed frustration that the issue has been dragging on. Holder and the White House have been saying for months that a decision will come “within weeks.”
“I believe that law enforcement should transcend politics. That has led me to support you and your decision to hold the trial of Khalid Sheikh Mohammed in the Southern District, where we have perhaps the best prosecutors anywhere in the world, the most experienced at prosecuting terrorism cases,” Weiner said. I, frankly, think that sooner or later you should stop the kabuki dance and tell us where that trial is going to be held. And I think if you make a good case and if you sell it and you get the facts out there, it'll be supported.”
One Democrat, Rep. Sheila Jackson-Lee of Texas came to the president’s defense, saying he had as much right as anyone else to opine on the likely outcome of a 9/11 trial.
“The president had a right to make comments because he has a First Amendment right of freedom of speech,” Jackson-Lee said.
Members of both parties also subjected Holder to skeptical questioning about his recent suggestion that Congress should pass a law detailing and broadening a public safety exception to the usual Miranda rule that criminal suspects be read their rights.
“We now find ourselves in 2010 dealing with very complicated terrorism matters,” Holder said. “And we think that with regard to that small sliver, only terrorism-related matters, not in any other way, terrorism cases, that modernizing, clarifying, making more flexible the use of the public safety exception would be something beneficial.”
Rep. Bobby Scott (D-Va.) said that exception might scuttle cases if police suspected terrorism but the defendant ended up charged with some other crime.
“At the point the interrogation starts, a police officer might not be able to tell whether it's terrorism or not. And thinking wrongly that it is terrorism, you can mess up an otherwise fairly good case,” said Scott.
Rep. Dan Lungren (R-Calif.) said the proposal really wasn’t just broadening the public safety exception, but stretching it beyond prior precedent.
“In cases involving suspected terrorists, presumably, we're trying to get more information than just the immediate danger. We're trying to solicit information with respect to perhaps a terrorist network,” he said. “The underlying legal argument made before the court is different.”
Holder insisted that what the administration wants to do is consistent with what the courts have approved in the past. “The definition of immediate danger really is -- can be different,” he said.
Before the questioning got underway Thursday, Judiciary Committee Chairman John Conyers (D-Mich.) tried to postpone the hearing. Some members wanted to return to their districts because the day’s last vote unexpectedly came early. However, Republicans insisted that the hearing go forward.