For Holder, much wrestling over decision

By Carrie Johnson

Washington Post Staff Writer

Saturday, November 14, 2009; A01

Eric H. Holder Jr. called his order Friday to send the suspected plotters of the Sept. 11 attacks to trial in Manhattan “the toughest decision I’ve had to make as attorney general.” But what the nation’s chief law enforcement officer did not lay bare for public consumption was the four months of deliberation, lobbying and tug of war inside his own Justice Department that preceded an announcement that will follow him into history.

In his nine months in office, Holder has jettisoned a public corruption case against former senator Ted Stevens (R-Alaska) because of prosecutorial lapses, launched an inquiry into CIA interrogators who abused terrorism suspects and announced a turnaround on medical-marijuana enforcement. Each decision has drawn a measure of criticism from Capitol Hill and some of his predecessors.

Nevertheless, the fate of the five men who allegedly conspired to use fully fueled airliners as weapons of mass destruction in 2001 posed the single biggest legal and political question that Holder is likely to face. The criminal proceedings against Khalid Sheik Mohammed and his four alleged confederates may display to the world all the protections and failings of the U.S. justice system.

“The stakes are high,” Holder said Friday in a brief conversation. “You have what is truly the trial of the century. The American people are committed to the resolution of this, and I considered that closely in picking the right place, the right forum, the right team.”

For Holder, a native New Yorker who observed the construction of the World Trade Center’s twin towers as a student at Columbia University, the decision to send the detainees to a heavily secured courthouse in Lower Manhattan held special meaning. His brother, William, is a retired Port Authority police officer who lost friends in the attacks, and many of their relatives continue to reside in the Queens neighborhood where Holder grew up playing street basketball.

At a news conference, Holder emphasized the location to full symbolic effect: “After eight years of delay, those allegedly responsible for the attacks of September 11th will finally face justice. They will be brought to New York — to New York — to answer for their alleged crimes, in a courthouse just blocks away from where the twin towers once stood.”

The attorney general, who personally opposes the death penalty, all but vowed to seek capital punishment against each of the five defendants. Two hours later, in a Washington hotel ballroom, his immediate predecessor, Michael B. Mukasey, said that the decision to send Mohammed to criminal court was “unwise” and a misunderstanding of the threat posed by Islamist extremists. Republicans in Congress and some victims’ families, notified early Friday by phone of the decision, reacted with anger.

Resolving the fate of the military prison at Guantanamo Bay, Cuba, for terrorism suspects was one of the first and ugliest problems to hit the Obama administration’s lawyers. Reviews by interagency teams of the haphazard case files took months longer than anticipated. Congress balked at funding the effort, and lawmakers from both parties howled at the prospect that detainees could be brought onto American soil.

Developing a plan

Holder rolled up his sleeves in July, after developing a protocol with the Defense Department over how the two agencies would decide whether to send 200-odd Guantanamo Bay detainees to military commissions, to federal courts or into a legal limbo known as indefinite detention. He ordered top federal prosecutors in four districts — the District of Columbia, Northern Virginia, Brooklyn and Manhattan — to present by Oct. 1 their recommendations on how to proceed, and sought input from military prosecutors who had sole control over the cases for years.

He consulted with intelligence experts within the Justice Department, the national security division and the solicitor general’s office. He kept in continual phone contact with Jeh Johnson, the general counsel of the Defense Department, and deputy Bill Lynn, the Pentagon’s point man on detainees. Some military lawyers worried — and continue to express concern — that they will be left with the less notorious and legally insignificant cases. But in at least one instance, their lobbying worked.

The Defense Department lawyers made a particularly powerful plea, government attorneys said, to retain the case involving the attack on the USS Cole, a Navy vessel bombed in 2000 while docked off Yemen. The attack killed 17 sailors, and the man accused of orchestrating the attack, Abd al-Rahim al-Nashiri, indeed will face military trial, Holder announced.

Holder also contended with turf battles among his prosecutors, who vied for a piece of the biggest criminal cases in years. He twice listened to presentations by the top prosecutors in Alexandria and Manhattan, who appeared side by side in the secret command center in the department headquarters and lobbied him to send the era’s biggest terrorism case to their office.

As a Nov. 16 deadline for resuming military commissions approached, Holder spent the bulk of a 15-hour flight to Qatar poring over 240 pages of legal memos on the cases, and he stopped in London on the way back home to consult by phone with Sen. Lindsey O. Graham (R-S.C.), an outspoken and respected advocate for military prosecutions.

Deciding on a venue

In the end, the biggest factor that influenced Holder’s decision-making, according to senior Justice Department officials, turned out to be a confidential security study prepared by the U.S. Marshals Service. That agency operates behind the scenes to protect courthouses, judges and witnesses in scores of facilities across the country. The marshals concluded that the Southern District of New York — with its hardened courthouse, secure Metropolitan Correctional Center and underground transportation tunnels through which to bring defendants to and from court each day — was, hands down, the safest option.

Newport News, Va., appeared attractive to Holder at first, until he considered that the options to transport defendants from a naval brig might prove too difficult. What was the point, he thought, of having a civilian trial if the procedures resembled the military process, according to the sources.

Another factor loomed: New York Gov. David A. Paterson (D), New York Mayor Michael R. Bloomberg (I) and Police Commissioner Raymond Kelly all said they supported the detainees’ transfer to the city, as did Sen. Charles E. Schumer (D-N.Y.).

In Virginia, there was Rep. Frank R. Wolf (R), who this year blew the whistle on the idea of relocating several ethnic Chinese Muslims held for years at the Cuban facility but not accused of any wrongdoing, into his suburban Washington district. And Sen. James Webb (D) said Friday that the Sept. 11 suspects “do not belong in our country, they do not belong in our courts, and they do not belong in our prisons.” Webb, a former secretary of the Navy, said the civilian trials “will be disruptive, costly and potentially counterproductive.”

The decision on trials coalesced in Holder’s mind Wednesday, at a White House principal’s meeting attended by Defense Secretary Robert M. Gates and other top administration officials. But not until Thursday did Holder send a message to the president, then en route to Tokyo, that he had closed the thick briefing book on the cases.

Moments later, he called both Neil MacBride, the well-respected U.S. attorney in Alexandria who considers Holder a mentor, and Preet Bharara, the genial top prosecutor in New York who spent years conducting tough investigations for the U.S. Senate. MacBride, who will send lawyers to New York to present evidence to a grand jury and help try the case, accepted the decision without criticism and pledged his support, two Justice Department officials said. The ultimate composition of the trial team will be decided by Amy Jeffress, Holder’s national security adviser, and by Holder himself.

MacBride’s office in Virginia, which developed an expertise in national security and convicted al-Qaeda militant Zacharias Moussoaui, is still in line for others of the dozen or more cases that could be prosecuted in civilian courts.

Bharara dispatched an officewide e-mail Friday morning that described the case as “a challenge and opportunity of historic proportions. I could not be more confident, however, that we are up to that challenge.” He urged his staff members to welcome the lawyers from Virginia with open arms, as partners. The prospect seemed unlikely in the near term, according to current and former government lawyers, who say such turf battles can leave bruises, at least for a while.

Holder acknowledges that tensions remain high across the nation when it comes to Guantanamo. The attorney general is to testify Wednesday before the Senate Judiciary Committee, where a majority of Republicans have blasted his decision about criminal trials.

“I’ll just have to take my lumps, to the extent those are set in my way,” Holder told reporters. “But I think if people will, in a neutral and detached way, look at the decision that I have made today, understand the reasons why I made those decisions, and try to do something that’s rare in Washington — leave the politics out of it and focus on what’s in the best interest of this country — I think the criticism will be relatively muted.

“Having said that, I’m sure we’ll hear a lot of criticism.”