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Holder on KSM Conviction: 'Failure is Not an Option'

3:20 PM, Nov 18, 2009 • By MARY KATHARINE HAM
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Attorney General Eric Holder seemed to take an unorthodox view of the guarantees of the American justice system today during a committee hearing about his decision to try 9/11 co-conspirators in federal courts in New York City.

Asked by Sen. Herb Kohl (D-Wis.) if the justice department had contingency plans, should by some technicality, KSM and others not be successfully prosecuted, Holder replied:

"Failure is not an option. These are cases that have to be won. I don't expect that we will have a contrary result."

The answer met with audible snickers in the gallery, perhaps from those who were under the impression that the very essence of our court system is that failure to prosecute is always an option.

"Well, that's an interesting point of view," Kohl said. "And, I'll leave it at that."

Sen. Chuck Grassley later criticized Holder's assertion.

"I don't know how you can say failure is not an option," Grassley said. "I'm a farmer, not a lawyer, but it seemed to me ludicrous."

Holder sought to soothe critics by explaining the administration has already determined that if something did go wrong, and a mistrial or acquittal happened, it would "not allow release into this country of anyone who was deemed dangerous." KSM and others would remain detained as enemy combatants, Holder said, in that case.

Holder was asked on several occasions about his confidence in convictions. He said it lay in evidence that others don't have access to-evidence he had determined could be best used in U.S. courts instead of military tribunals.

"My top priority is to select the venue where the government will have the opportunity to present strongest evidence," he said.

Republican senators asked repeatedly why, if Holder is concerned with which evidence would be admissible, he had picked civilian courts rather than military tribunals, which have fewer restrictions on what evidence may be considered.

"There is really, from my perspective, very compelling evidence that I'm not at liberty to discuss now that will probably not be revealed until we are in a trial setting," he said. "The evidence that I am not talking about I think is compelling, is not tainted, and I think it will prove to be decisive in this case."

Alice Hoagland, who lost her son Mark Bingham on Flight 93, disagrees with Holder's decision about 9/11 co-conspirators, and was in the gallery for the hearing. She approached him after the hearing and the two spoke for about five minutes, surrounded by media and cameras.

"It's a bit of a 'trust me' thing, I suppose," Holder told her. "There are reasons why bringing this case in an Article III (federal) court, in terms of admissibility of certain evidence, is really the right thing, and really maximizes our chances to be successful."