Holder: The Anti-Gonzales

Attorney General Eric Holder Testifies Before the Senate Judiciary Committee

Washington, D.C. ~ Wednesday, November 18, 2009

(Excerpt; emphases mine)

I would like to use the rest of the time allotted to me today to address a topic that I know is on many of your minds – my decision last week to refer Khalid Sheikh Mohammed and four others for prosecution in federal courts for their participation in the 9/11 plot. . . .

I hope we can have an open, honest, and informed discussion about that decision today, and as part of that discussion, I would like to clear up some of the misinformation that I have seen since Friday.

First, we know that we can prosecute terrorists in our federal courts safely and securely because we have been doing it for years. There are more than 300 convicted international and domestic terrorists currently in Bureau of Prisons custody, including those responsible for the 1993 World Trade Center bombing and the attacks on our embassies in Africa. Our courts have a long history of handling these cases, and no district has a longer history than the Southern District of New York in Manhattan. I have talked to Mayor Bloomberg of New York, and both he and the Police Commissioner Ray Kelly believe that we can safely hold these trials in New York.

Second, we can protect classified material during trial. The Classified Information Procedures Act, or CIPA, establishes strict rules and procedures for the use of classified information at trial, and we have used it to protect classified information in a range of terrorism cases. In fact, the standards recently adopted by Congress to govern the use of classified information in military commissions are derived from the very CIPA rules that we use in federal court.

Third, Khalid Sheikh Mohammed will have no more of a platform to spew his hateful ideology in federal court than he would have in military commissions. Before the commissions last year, he declared the proceedings an "inquisition," condemned his own attorneys and our Constitution, and professed his desire to become a martyr. Those proceedings were heavily covered in the media, yet few complained at the time that his rants threatened the fabric of our democracy.

Judges in federal court have firm control over the conduct of defendants and other participants in their courtrooms, and when the 9/11 conspirators are brought to trial, I have every confidence that the presiding judge will ensure appropriate decorum. And if KSM makes the same statements he made in his military commission proceedings, I have every confidence the nation and the world will see him for the coward he is. I’m not scared of what KSM will have to say at trial – and no one else needs to be either.

Fourth, there is nothing common about the treatment the alleged 9/11 conspirators will receive. In fact, I expect to direct prosecutors to seek the ultimate and most uncommon penalty for these heinous crimes. And I expect that they will be held in custody under Special Administrative Measures reserved for the most dangerous criminals.

Finally, there are some who have said this decision means that we have reverted to a pre-9/11 mentality, or that we don’t realize this nation is at war. Three weeks ago, I had the honor of joining the President at Dover Air Force Base for the dignified transfer of the remains of eighteen Americans, including three DEA agents, who lost their lives to the war in Afghanistan. The brave soldiers and agents carried home on that plane gave their lives to defend this country and its values, and we owe it to them to do everything we can to carry on the work for which they sacrificed.

I know that we are at war.

I know that we are at war with a vicious enemy who targets our soldiers on the battlefield in Afghanistan and our civilians on the streets here at home. I have personally witnessed that somber fact in the faces of the families who have lost loved ones abroad, and I have seen it in the daily intelligence stream I review each day. Those who suggest otherwise are simply wrong.

Prosecuting the 9/11 defendants in federal court does not represent some larger judgment about whether or not we are at war. We are at war, and we will use every instrument of national power – civilian, military, law enforcement, intelligence, diplomatic, and others – to win. 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.

We will also use every instrument of our national power to bring to justice those responsible for terrorist attacks against our people. For eight years, justice has been delayed for the victims of the 9/11 attacks. It has been delayed even further for the victims of the attack on the USS Cole. No longer. No more delays. It is time, it is past time, to act. By bringing prosecutions in both our courts and military commissions, by seeking the death penalty, by holding these terrorists responsible for their actions, we are finally taking ultimate steps toward justice. That is why I made this decision.