"This demonstrates that our federal civilian criminal justice system has the ability to incapacitate terrorists, has the ability to gain intelligence from those terrorists and is a valuable tool in our fight against terrorism," Holder said at news conference after Zazi's guilty plea.Holder is hoping that because Zazi entered a plea deal in a federal court case that it will somehow influence the outcome on whether and where to hold the KSM trial (or tribunal).
Holder has faced Republican fire for dealing with the underwear bomber airliner plot as a civilian case and for his decision, now being reconsidered, to try Khalid Shaikh Mohammed and four henchmen in lower Manhattan.
A resolution of where to try Mohammed is expected "relatively soon," Holder said. But a Manhattan trial - strongly opposed by New York officials - remains in play, he added.
Under pressure from congressional critics, the Justice Department is also considering sending Mohammed to trial before a military tribunal.
The problem for Holder is that these are two completely different situations with two completely different levels of evidence gathered that lead to two completely different outcomes.
Zazi was captured in the US for crimes committed in the US, including plotting to use WMD, conspiracy to commit mass murder, and working for al Qaeda. He was taken into custody by the NYPD and the Joint Terrorism Task Force that includes the CIA and FBI. Zazi was provided full rights under the law, including rights provided under Miranda.
KSM was captured in Pakistan and held incommunicado for years before being brought to Guantanamo Bay. Harsh interrogation methods were used. Miranda was not a consideration.
Investigators developed evidence and prosecuted the Zazi case as a law enforcement matter from the outset. Zazi entered into a plea deal, perhaps because he didn't want to see his mother deported even though Zazi claimed that he was attacking the US because of the way the US was treating Afghans. There is no such lever to procure a deal from KSM, and any KSM trial is apt to become a forum for him and his cohorts to spread their propaganda and hate against the US.
Holder and the Justice Department took KSM from the tribunal system where KSM confessed to all manner of terror-related crimes in 2007, including admitting to his role in the 9/11 attacks. KSM's lawyers even sent a note to the military judge in December 2008 of their intention to enter guilty pleas. With that backdrop, Holder sought to push the case into federal court, even though the evidenicary hurdles are far higher than they would have been in the tribunal system that the Obama Administration hopes to use in cases where they do not feel that the US has sufficient evidence to convict in federal court. Holder's decision to bifurcate treatment of detainees was a huge mistake, and his latest press conference reinforces the fact that he's engaging in damage control over this wholly unforced error.