WASHINGTON — More than two months into a review of where to try the self-professed mastermind behind the 9/11 terrorist attacks, Attorney General Eric Holder said the decision still hasn't been made and described it as a "close call."
Holder's comments Wednesday before the Senate Judiciary Committee demonstrated how conflicted the administration remains after President Barack Obama indicated his willingness to consider moving the trial of 9/11 defendant Khalid Sheikh Mohammed out of New York City.
Holder said that New York "is not off the table," although he acknowledged, "We have to take into consideration the concerns that have been raised by local officials and by the community."
New York Mayor Michael Bloomberg and other officials, including Democrats, have said that the cost — estimated at perhaps $1 billion — and the disruption and gridlock that would be involved in providing a secure civilian trial for Mohammed in Manhattan are too burdensome and requested that he be tried elsewhere. Republicans favor trying him and other suspected terrorists before military commissions.
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After controversy grew, the White House stepped in to review Holder's decision to prosecute Mohammed in federal court in Manhattan. Holder said that a final decision on where to prosecute Mohammed remains weeks away.
While Holder said he was "very jealous in guarding the prerogatives" of the Justice Department, he said the involvement of the White House "makes sense."
"It should be clear to everyone by now that there are many legal, national security and practical factors that have to be considered here," he said. "As a consequence, there are many perspectives on what the most appropriate and effective forum is."
Sen. Orrin Hatch, R-Utah, said that Holder had made a flawed decision that unnecessarily jeopardized national security.
"You need to reevaluate this," Hatch told Holder. "I don't think the people of New York want this trial anywhere in their state or their city."
Holder emphasized that the administration doesn't think that all suspected terrorists should be prosecuted in the same forum. The administration has referred six cases to military tribunals, and Holder said: "We will no doubt refer other cases, as well."
"Let me be clear: this administration will use every tool available to fight terrorism," Holder said. "That includes both civilian courts and military commissions."
The hearing came amid a continuing Republican attack on the administration for its handling of anti-terrorism measures, including the decision to try the Christmas Day underwear bombing suspect in federal court. The suspect, Umar Farouk Abdulmutallab, has since agreed to cooperate with prosecutors, a development that Holder said demonstrates that federal court was the best forum for the case.
Also reacting to criticism, Holder attempted to walk back comments he made last month that rather than interrogating or prosecuting Osama bin Laden, "The reality is we will be reading Miranda rights to a corpse."
That comment prompted Army Gen. Stanley McChrystal, the top U.S. military commander in Afghanistan, to say that the United States hopes to capture bin Laden alive.
Wednesday, Holder agreed but defended his original assertions, saying they were based on intelligence indicating that bin Laden's aides have been ordered to kill him if U. S. forces are closing in.
Democrats accused Republicans of unfairly attacking Holder on all fronts.
Sen. Dianne Feinstein, D-Calif., who formerly demanded a review of the Mohammed trial site decision, said she's come to think that Holder needed flexibility in deciding where to try terrorism suspects and called Republican criticism "reprehensible."
"The degree to which this dialogue has escalated is really very unhealthy," she said.
Republicans, however, weren't the only source of criticism.
After Holder's testimony, the American Civil Liberties Union took issue with his assertion that 48 Guantanamo detainees need to be held indefinitely because they're too dangerous to transfer and can't feasibly be prosecuted.
"Detaining terrorism suspects without charge or trial is illegal and un-American," the ACLU said in a statement.
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