WASHINGTON — Republican senators confronted Attorney General Eric Holder on Wednesday over his decision to try the Sept. 11 terrorism suspects in civilian court.
President Barack Obama, meanwhile, expressed certainty that they'll be found guilty and executed.
Holder didn't go as far as Obama did in his testimony to the Senate Judiciary Committee, though the nation's top prosecutor said he was confident that justice would be delivered to Khalid Sheikh Mohammed and other accused plotters of the Sept. 11, 2001, terrorist attacks.
"I think you've made a fundamental mistake here," South Carolina Republican Sen. Lindsey Graham, a military lawyer who's served active duty in Iraq and Afghanistan, told Holder.
"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 by interjecting into the system the possibility that they may be given the same constitutional rights as any American citizen," Graham said.
Holder said he foresaw no judicial obstacles to convicting the five terrorism suspects and putting them to death, though he acknowledged that prosecutors will have to persuade jurors.
"I do not see any legal impediments to our seeking the death penalty," Holder said. "We will obviously have to convince a jury of 12 people that the death penalty is appropriate."
Obama, in a TV interview during his tour of Asia, suggested that death sentences will vindicate Holder's and his decision to hold a federal trial for Mohammed, the self-proclaimed mastermind of the Sept. 11 assault, which killed almost 3,000 Americans.
When the president was asked whether he understood why some people might take offense at the decision, which Holder announced last week, he told NBC News: "I don't think it will be offensive at all when he's convicted and when the death penalty is applied to him."
Obama, a former law professor, appeared to realize immediately that such a statement risks harming the constitutional presumption of innocence and the right to a fair trial.
"What I said was people will not be offended if that's the outcome," he added. "I'm not prejudging" the verdict.
Former Attorney General John Ashcroft was criticized — and, in a Detroit terrorism case, threatened with being held in contempt of court — for making what were seen as inflammatory and premature declarations of guilt after the arrests of terrorism suspects.
Obama also conceded for the first time publicly that he'll miss his Jan. 22 deadline for closing the U.S. military prison in Guantanamo Bay, Cuba, where 220 terrorism suspects are held.
"Guantanamo, we had a specific deadline that was missed," the president told Fox News. "We are on a path and a process where I would anticipate that Guantanamo will be closed next year. I'm not going to set an exact date because a lot of this is also going to depend on cooperation from Congress."
At the Holder hearing, Sen. John Cornyn, a Texas Republican, grilled the attorney general in a series of testy exchanges.
Cornyn, a former judge, asked Holder how he'd respond to a federal judge ruling that Mohammed wasn't read his Miranda rights to remain silent in the absence of a lawyer at the time of his detention or to a judge's decision to release Mohammed on a legal technicality.
"What if the federal judge orders the Justice Department to release him?" Cornyn asked. "Will you defy that order?"
Holder responded: "It's hard for me to imagine a set of circumstances under which, if he were acquitted, he would released into the United States. ... There are other things that we have the capacity to do."
Sen. Charles Schumer, a New York Democrat who supports the Obama administration's stance, said it would cost an estimated $75 million to try the five suspects in the federal courthouse in lower Manhattan, just blocks from Ground Zero, where the World Trade Center towers collapsed.
Schumer extracted a promise from Holder that Washington will reimburse his state for most or all of the trial's cost.
"America was attacked on September the 11th," Holder said. "That attack was of national consequence. What we are doing is a national responsibility. And although the trial will be hosted in New York, it seems to me that New York should not bear the burden alone."
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