The House Judiciary Committee’s top Republican, Lamar Smith of Texas, on Friday sent a letter to Attorney General Eric Holder requesting answers from the Obama administration regarding the anticipated prosecutions of Khalid Sheikh Mohammed and four others who allegedly conspired on the Sept. 11, 2001, terrorist attacks.

Smith released the following statement:

“Despite guarantees from Administration officials that KSM and his co-conspirators will be brought to justice, there is still a significant amount of uncertainty about how civilian trials for terrorists would work. Unfortunately, failure is an option in the federal courts.  Part of being innocent until proven guilty means there is no way to guarantee a successful trial.

The Obama administration is making promises it can’t keep.  If terrorists are brought to trial in the U.S., the courts will grant them additional constitutional rights, making it harder for prosecutors to obtain a conviction. Further, defense attorneys may argue successfully that statements made by Administration officials prejudiced the jury.

Terrorists should be treated as enemies of America — not common criminals. The American people deserve to have the facts before Gitmo terrorists are brought to the U.S. for trial.”

Here is Smith’s letter to Holder:

Although Attorney General Eric Holder has reconsidered his decision to hold the trial of Khalid Sheikh Mohammed in Manhattan, some continue to voice support for the location, The Los Angeles Times reported Tuesday.

In November, Holder announced that KSM, the self-described “mastermind” of the Sept. 11, 2001 terrorist attacks, would be tried in the Southern District of New York. The office is headed by U.S. Attorney Preet Bharara. Holder quickly came under fire for the decision and in February decided to move the trial out of SDNY.

One of the locations under consideration from the start was the Eastern District of Virginia, which hosted the spring 2006 trial of Zacarias Moussaoui. The Alexandria, Va.,-based district is the only place to date that has held a Sept. 11, 2001-related trial. The LA Times reports that as Justice Department officials, aided by Holder and President Barack Obama, continue to look for a trial location, they remain steadfast that the trial should be conducted where one of the attacks occurred, meaning New York City, Northern Virginia or western Pennsylvania.

However, those outside the DOJ remain divided on where the trial should take place.

Ron Kuby, a New York City criminal defense lawyer who has represented terrorism defendants for three decades said, KSM “has said repeatedly and publicly, ‘I did it. Kill me.’ And the government has said repeatedly and publicly, ‘He did it. We want to kill him.’” He added, “It sounds like a plan. Not a lot can go wrong.”

However, Larry Homenick and Tina Rowe — the two top U.S. marshals who coordinated security in Denver for the 1997 trial of Oklahoma City bomber Timothy McVeigh — said the world has dramatically changed in the past decade. When McVeigh was tried, the concern was that anti-government militias might create trouble. Now, the concerns include suicide bombers and airplane attacks, the U.S. marshals told The LA Times.

Both said the trial should not take place in the crowded borough of Manhattan. “That case in New York would be like the McVeigh trial on steroids,” Homenick told The LA Times.

Another concern is that having New York host the trial would make the city a target for another attack. But Bernard V. Kleinman, a lawyer who represented Ramzi Ahmed Yousef in the 1993 World Trade Center attack disagrees. “New York has been a target for years,” he told The LA Times. Kleinman added that KSM and his co-defendants might plead guilty, which would mean short sentencing hearings. He also told The LA Times, ” It’s important they hold the trial right there” because of what happened there.

Defense attorney James J. Brosnahan — who represented John Walker Lindh who was tried in Alexandria, Va., for fighting with the Taliban — told The LA Times neither he nor his client felt they were in any danger. “Courts today are built to deal with all kinds of problems.”

Thomas Penfield Jackson (Jackson & Campbell, P.C.)

A former U.S. District Court judge wrote an op-ed piece in Friday’s Washington Post calling for the trial of Khalid Sheik Mohammed to be moved to Washington, D.C.

Thomas Penfield Jackson, who for 22 years served as a judge in the U.S. District Court for the District of Columbia before joining Jackson & Campbell, P.C. in 2004, argues that KSM’s trial should be held in Washington, D.C., because “KSM’s crimes were committed against the entire nation, and it is fitting that the nation’s capital should host his trial.” In addition, the federal government will bear the brunt of the cost of the “expensive” trial,  not the city in which the trial is held, Jackson writes.

One cause for concern — whether the trial is held in New York City, as Attorney General Eric Holder announced last November, or in Washington, D.C. –  is that “the trial would once again make New York an enticing target for a terrorist attack, but New York is always an appealing target for attack.” He adds, “For that matter, so is Washington.”

Jackson continues that Holder “should reject the suggestion that [KSM] be tried by a military commission at Guantánamo Bay or anywhere else. His crimes were civil, not military.” He notes that KSM “owed no allegiance to any flag, nor did he wear the uniform of any country” and he “answered to no code of military honor or of the law of war.” Jackson writes, “A public trial in a civilian federal criminal court would demonstrate to the world, once again, that the United States, applying its well-respected standards for fairness, can convict terrorists as the common criminals they are.”

The retired judge writes that he is “sure my former colleagues on the court would not appreciate the extra work the KSM trial would require, but they have all become intimately familiar in recent years with the problems of the administration of justice in the age of terrorism.” In addition, “most of them have tried high-profile, protracted and complex criminal cases, some of them capital cases,” Jackson writes.

While the Justice Department “has been rumored to be concerned with an alleged reluctance of D.C. juries to impose the death penalty … no prosecution should ever be undertaken for the primary purpose of putting the defendant to death. The goal is a fair trial,” according to Jackson.

However, “There is virtually no possibility of an acquittal or even a hung jury.” He adds, “Obtain the conviction, and the penalty will take care of itself. (In KSM’s case, it could never be less than life in a maximum-security prison without parole.)”

In dueling interviews this morning with ABC’s This Week and NBC’s Meet the Press, Vice President Joe Biden and former Vice President Dick Cheney traded shots on the Obama administration’s decision to try self-confessed 9/11 mastermind Khalid Sheikh Mohammed in federal court in New York, and to treat the Christmas Day bomber Umar Farouk Abdulmutallab as a criminal suspect rather than a military prisoner.

Biden defended the decision to turn over Abdulmutallab to the FBI, and drew parallels with the Bush Administration’s treatment of Richard Reid, who tried to blow up an American Airlines flight from Paris to Miami in December 2001 with explosives hidden in his shoes.

Here’s Biden on NBC:

‘Let me choose my words carefully here. Dick Cheney’s a fine fellow. He’s entitled to his own opinion. He’s not entitled to rewrite history. He’s not entitled to his own facts. The Christmas Day Bomber was treated the exact way that he suggested that the Shoe Bomber was treated. Absolutely the same way. .

under the Bush administration there were three trials in military courts. Two of those people are now walking the streets. They are free. There were 300 trials of so-called terrorists and those who have engaged in terror against the United States of America who are in federal prison, and have not seen the light of day, prosecuted under the last administration.

.. Dick Cheney’s a fine fellow, but he is not entitled to rewrite history without it being challenged. I don’t know where he has been. Where was he the last four years of the last administration?’

Cheney has argued that Abdulmutallab’s actions should have treated as an act of war.

Cheney told ABC’s Jonathan Karl this morning: “I do see repeatedly examples that there are key members in the administration, like Eric Holder, for example, the attorney general, who still insists on thinking of terror attacks against the United States as criminal acts as opposed to acts of war, and that’s a — that’s a huge distinction.”

An interesting exchange came when Karl asked Cheney about the Reid parallels. Cheney first argued that the military commission infrastructure had not been ready at the time. Then he acknowledged disagreements within the Bush administration over which approach to take.

KARL: But you still had an option to put him into military custody.

CHENEY: Well, we could have put him into military custody. I don’t — I don’t question that. The point is, in this particular case, all of that was never worked out, primarily because he pled guilty.

KARL: Now, I’d like to read you something that the sentencing judge reading the — giving him his life sentence read to Richard Reid at the time of that sentencing. Here it is. He said to Reid, “You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. To give you that reference, to call you a soldier gives you far too much stature. We do not negotiate with terrorists. We hunt them down one by one and bring them to justice.”

The judge in that case was a Reagan appointee. Doesn’t he make a good point?

CHENEY: Well, I don’t think so, in a sense that it — if it — if you interpret that as taking you to the point where all of these people are going to be treated as though they’re guilty of individual criminal acts.

KARL: Now, on that question of trying, you know, dealing as enemy combatants or through the criminal justice system, I came across this. This is a document that was put out by the Bush Justice Department under Attorney General Ashcroft…

CHENEY: Right.

KARL: … covering the years 2001 to 2005. And if you go right to page one, they actually tout the criminal prosecutions…

CHENEY: They did.

KARL: … of terror suspects, saying, “Altogether, the department has brought charges against 375 individuals in terrorism- related investigations and has convicted 195 to date.” That was 2005. Again, seems to make the administration’s point that they’re not doing it all that differently from how you were doing it.

CHENEY: Well, we didn’t all agree with that. We had — I can remember a meeting in the Roosevelt Room in the West Wing of the White House where we had a major shootout over how this was going to be handled between the Justice Department, that advocated that approach, and many of the rest of us, who wanted to treat it as an intelligence matter, as an act of war with military commissions.

We never clearly or totally resolved those issues. These are tough questions, no doubt about it. You want my opinion, my view of what ought to happen, I think we have to treat it as a — as a war. This is a strategic threat to the United States. I think that’s why we were successful for seven-and-a-half years in avoiding a further major attack against the United States.

In his interview, Biden also responded to criticism from Cheney about Holder’s decision to try Mohammed in New York federal court. That decision has not only raised the ire of Republicans but also of New York Mayor Michael Bloomberg and the state’s congressional delegation.

Biden reiterated the administration’s claim that Mohammed’s trial would result in a guilty verdict. ”That decision as to where and when…is being considered right now,” Biden said, adding: “he will not be acquited, he will be found guilty, he will be in jail, and he will stay there.”

Biden did not rule out moving Mohammed to a military commission.

President Barack Obama will help choose the location of the KSM trial (White House).

President Obama will help select the location of the trial of Khalid Sheik Mohammed and insert himself into the process that has faced major political setbacks, The Washington Post reports.

Administration officials acknowledged that Attorney General Eric Holder and Obama advisers were not able to build support for the trail in New York City. Meanwhile, Holder acknowledged in an interview with The Post that the trial may be switched to a military commission.

“At the end of the day, wherever this case is tried, in whatever forum, what we have to do is ensure is that it’s done as transparently as possible and with adherence to all the rules,” Holder said. “If we do that, I’m not sure the location or even the forum is as important as what the world sees is proceeding.”

That position is a major shift from where he stood previously, but reflects the political reality of holding the trial in a city against the will of Mayor Michael Bloomberg and several Republican and Democratic senators who have signaled support for a bill which would bar the Justice Department from funding the trail in civilian court.

In November when he announced the decision, he cited the symbolism of bringing the men to justice near the site of the World Trade Center towers, which were demolished in the Sept. 11, 2001 terrorist attacks.

“After eight years of delay, those allegedly responsible for the attacks of September the 11^th will finally face justice,” Holder said in a statement. “They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.”

The decision to try Mohammed was Holder’s alone, officials said, and was not influenced by politics.

“Their building represents what they do — justice. It’s rightly not staffed with people who have to worry about congressional relations or federal funding,” one White House official told The Washington Post.

Reflecting on his first year, Holder told The Post: “What I’ve tried to do is reestablish the department in the way that it has always been seen at its best, as an agency that is independent, given the unique responsibilities that it has,” he said. “But to be truly effective in the national security sphere, you’ve got to involve partners outside this building. To make decisions the AG has to make, you have to involve the commander in chief and these other people. I’m part of the national security team in a way that I’m not involved in the environmental resources team, the civil rights team.”

In an interview with The New York Times, Holder again hit back at critics of trying terrorism suspects in civilian court, saying fear and partisanship drove some of the objections to the administration’s decisions.

“I think a substantial number of people who have criticized the decisions I have made have done so on a political basis for partisan motives and have used fear in a way to support their arguments,” he said. “And it’s a difficult thing to overcome fear with facts, to overcome campaign slogans with explanations of complex policy decisions. It’s not impossible, but it’s difficult, and it’s an effort that I need to be more engaged in.”

The White House and the Justice Department have been more visible in countering the Republican attacks in recent weeks after seeming to be caught off guard by the political storm over the NYC trials.

The New York Times article pointed out that civilian trials have a much better track record than military commissions:

John Walker Lindh and David Hicks were both young Muslim converts who traveled to Afghanistan to join the Taliban and were captured there in 2001 by American troops. But then their cases diverged — in ways that might surprise anyone following the fierce political debate over how the Obama administration should treat terrorism suspects.

Bush administration officials decided to charge Mr. Lindh, an American, in the civilian criminal justice system. He was sentenced to 20 years in federal prison and will not get out until at least 2019.

Mr. Hicks, an Australian, was treated as an enemy combatant — the approach now pressed by President Obama’s Republican critics. He went before a military commission at Guantánamo Bay in Cuba and got a seven-year sentence with all but nine months suspended. He is already free.

John Ashcroft (USDOJ)

Former Attorney General John Ashcroft said on Friday that trials for the Sept. 11, 2001, plotters could endanger the public and give anti-U.S. elements a public stage to voice their rhetoric, according to the Associated Press.

“If your top priority is the liberty and life of American citizens and the security of their lives and liberty, then this decision is less than optimal,” he told reporters at a Kansas fundraiser for Republican Rep. Todd Tiahrt’s campaign for U.S. Senate. ”I believe we are still in a very significant war on terror. The administration doesn’t appear to believe that we are in a war on terror.”

Last Wednesday, Ashcroft said that Holder technically  lacks the legal standing to move alleged Sept. 11 plotter Khalid Shaikh Mohammed and other detainees to federal courts in New York City to stand trial.

“The attorney general doesn’t have the authority to mandate that the secretary of Defense turn somebody over to him and yield jurisdiction so that something that would have been done in a military setting is done in a civilian setting,” Ashcroft told the Chris Stigall show on KCMO radio, according to the Hill.

Notwithstanding Ashcroft’s views, the trials will be held in New York City; Holder made his decision in consultation with Secretary of Defense Robert Gates, according to the Justice Department

Ashcroft, who was Attorney General from 2001-2005, joins former Attorneys General Ed Meese and Michael B. Mukasey in criticizing Holder’s decision to give the Sept. 11 plotters civilian trials.

Edwin Meese III

Former Attorney General Ed Meese on Wednesday joined in the criticism of Attorney General Eric Holder’s controversial decision to try alleged Sept. 11, 2001, terrorism mastermind Khalid Sheikh Mohammed in federal court in New York. Meese served as Attorney General under President Ronald Reagan from 1985 to 1988.

In a blog posting on Web site of the Heritage Foundation, where Meese is the Ronald Reagan Distinguished Fellow in Public Policy and chairman of the Center for Legal and Judicial Studies, he also criticized the decision to “abandon” the Guantanamo Bay detention camp.

Here’s Meese’s full blog posting:

“It is clear that foreign terrorists and terrorist groups have committed acts of war against the United States, and that our national security requires that we respond accordingly. This means that President Bush’s prudent actions and the military response which he led should continue as our answer to these attacks.

Congress overwhelmingly reaffirmed their commitment to military commissions in 2006, which have historically been the way that we respond to acts of war. To abandon our two centuries of tradition and to substitute some new civilian procedure as a response to such attacks endangers the security of our country and our national interest.

It was a tragic mistake to decide to abandon the prison facility at Guantanamo Bay, which was designed physically and legally to handle these types of cases. It is a further tragic mistake to now bring the detained war combatants into the United States and to employ civilian criminal procedures which were never intended for this type of situation.

The U.S. Constitution protects American citizens and visitors from the moment they are suspected of criminal wrongdoing through a potential trial. These same protections are not, have never, and should not be granted to enemy combatants in war, since it is clear that regardless of the outcome of the trial, these detainees will likely remain in the custody of the United States.”

Attorney General Eric Holder used his Senate Judiciary Committee appearance today to push back against conservative critics on national security.

Without naming names, Holder refuted recent comments by former Attorney General Michael Mukasey and Mukasey’s close friend, former New York City Mayor Rudy Giuliani, both of whom have slammed Holder’s controversial decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in federal court in New York.

“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,” Holder said in his opening remarks before a Justice Department oversight hearing. “I know that we are at war.”

The “pre-9/11 mentality” comment appeared aimed right at Mukasey, who was President George W. Bush’s last Attorney General, and who served as an Assistant U.S. Attorney in the Southern District of New York in the mid 1970s with Giuliani.

Mukasey had earlier criticized the Obama administration for dropping use of the Bush-era “war on terror” phrase.

“Using soft, cushy euphemisms instead reflect they’re back in a pre-9-11 mentality,” Mukasey told the Washington Times. “In some ways it’s worse, because at least before [the attacks] we were not aware of what we were facing.”

And Giuliani said Wednesday that if Holder “truly believes we are at war,” he will reverse the decision to try KSM in civilian court and instead let the military try him. “It sends a signal to the terrorists that we are not taking this seriously, as we did before,” the 2008 Republican presidential candidate told reporters on a conference call arranged by the Republican National Committee.

Giuliani became famous for his leadership of New York through the Sept. 11, 2001 attacks that brought down the World Trade Center. He became mayor in 1994, a year after followers of an Islamist leader with ties to Osama Bin Laden, the “blind sheikh” Omar Abdel Rahman, had first tried to bring down the towers, using explosives.

NBC’s First Read political newsletter points out a perceived inconsistency in Giuliani’s statements over time. In 1994, the New York mayor praised a guilty verdict in the first WTC bombing trial as demonstrating that “New Yorkers won’t meet violence with violence, but with a far greater weapon — the law.”

For his part Mukasey has been on an op-ed spree in recent weeks, publishing arguments in favor of military commissions in the Wall Street Journal and The Washington Post.

Holder on Wednesday said his critics who said courts can’t handle terrorism cases and that classified information wouldn’t be protected are spreading “misinformation.”

“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,” Holder said. Among the high profile terrorism trials in New York was the 1994-95 trial of Abdel Rahman, who was convicted of plotting to blow up the United Nations and other New York City landmarks. Mukasey, then a federal judge, presided over the trial.

At Wednesday’s hearing, Sen. Orrin Hatch (R-Utah) cited Mukasey’s previous statements that he believed the Abdel Rahman trial had been bad for national security. The trial produced a public list of  unindicted co-conspirators — including bin Laden — that may have tipped off the al-Qaeda leader he was wanted by the U.S. government, Mukasey has said.

Holder parried that prosecutors would have sought to keep the unindicted co-conspirator list classified and secret, if it had really compromised national security.

But one of the most interesting exchanges Wednesday came with a Democrat on the Senate panel. Sen. Herb Kohl (D-Wis) asked Holder what he planned to do if a jury failed to convict KSM. ”Failure is not an option,” Holder said, adding that he’d spoken already to the prosecutors about it. “These are cases that have to be won. I don’t expect that we will have a contrary result.”

Replied Kohl: “Well, that’s an interesting point of view. Um, I’ll just leave it at that.”