Holder announced the plan to try Mohammed and the other defendants in federal court in Manhattan in late 2009. He had to reverse course after being criticized by political leaders in New York and a bipartisan group of lawmakers in Congress, who said a trial on U.S. soil carried too many security risks and costs.
Although the Obama administration backed down and returned the case to the Defense Department, Holder has always said he believes that it would have been the better legal path to try Mohammed and the others in civilian court.
“Not to be egocentric about that, but I was right,” Holder said when asked about his initial decision Monday. “I had access to documents, files, recommendations by the military, U.S. attorney’s offices in the Eastern District of Virginia, as well as the Southern District of New York. And I think the decision that I announced on that day was the right one. And I think that the facts and events that have occurred since then demonstrate that.”
The military commission proceeding is still in pretrial hearings, and it is unclear when the trial might start. Some lawyers estimate it might not begin for two years.
“Since they were arraigned last year, the military commission for the accused 9/11 co-conspirators continues to progress through pretrial hearings, giving the accused and their counsel the opportunity to fully raise and litigate their legal challenges,” said Lt. Col. Todd Breasseale, a Defense Department spokesman.
Holder said his decision was derailed for political, not legal, reasons.
“We unfortunately did not go down that road, I think, for reasons other than those connected to the litigation, I think largely political,” Holder said. “The opposition was largely political in nature. And I think this is an example of what happens when politics gets into matters that ought to be simply decided by lawyers and by national security experts.”
Holder cited a recent case, the prosecution in New York of Libyan Nazih Abdul-Hamed al-Ruqai, also known as Anas al-Libi, as an example of how the civilian court system can be effectively used to try foreign terrorism suspects. He is accused of involvement in the 1998 East African embassy bombings.
“It is our intention to hold him totally accountable, as we have others who were part of that conspiracy,” Holder said. “If you look at the history of the Article III prosecutions, you will see that they don’t take nearly as long as those that occur in the military system. . . . We hold people accountable.”