'Heads I Win, Tails You Lose': In 9/11 Case, KSM Won't Walk Free Even If Found Not Guilty

Attorney General Eric Holder acknowledged on Wednesday a previously unspoken proviso to the controversial decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four co-conspirators in a federal court in New York: even if the defendants are somehow acquitted, they will still stay behind bars.

Holder's comments at a hearing before the Senate Judiciary Committee would seem to turn the criminal-justice system on its head. The whole point of a criminal trial is to determine guilt—and if the government fails to make its case beyond a reasonable doubt, the defendant walks free.

At least that's the way the system usually works.

But pressed today by Sen. Lindsey Graham, Republican of South Carolina, about what might happen "if, by some one in a million fluke, one of the defendants were acquitted," Holder responded in effect that they won't be released.

First, he noted, Congress has already barred any Guantánamo detainees from being released inside the United States. But then, pressed again about what would happen "if one of these terrorists" in the future were found not guilty or given a short sentence, Holder agreed that the Justice Department would still retain the authority to lock them up as enemy combatants.

"I certainly think that under the regime that we are contemplating, the potential for detaining people under the laws of war, we would retain that ability," Holder said.

"Yes," replied Graham. "So in the Sheikh Mohammed case, we've never going to let him go if something happened wrong in the federal court."

Holder's comments were not the first time the administration has asserted its plans to continue some form of indefinite detention—a legal concept that was central to the Bush administration's philosophy for dealing with detainees.

President Obama (who acknowledged today that he won't meet his deadline for closing Gitmo by next January) first drew fire from civil-liberties groups when he raised the prospect of "prolonged detention" for some detainees during his National Archives speech last May. ("We are not going to release anyone if it would endanger our national security," Obama said then.)

But Holder's responses today were the first time the idea has been specifically mentioned in the context of the 9/11 trial, giving criminal-defense lawyers an opportunity to poke fun at the Justice Department's rationale behind the decision to try the case in federal court.

"It's heads I win, tails you lose," says Joshua Dratel, a top New York criminal-defense lawyer who has represented numerous defendants in terrorism cases. "It does unfortunately ruin the effect of the notion that we are bringing them to federal court to uphold the rule of law, if you say, 'If the rule of law doesn't work, we'll try something else.' "

To be sure, Holder later expanded on his answer when another Republican senator, John Cornyn of Texas, pushed him on the same question.

What would happen, Cornyn asked, if a federal judge were to decide that Mohammed had been denied his constitutional rights—such as not being advised of his Miranda rights (to be represented by a lawyer)—and orders the Justice Department to let him go?

"We have taken the view that the judiciary does not have the ability [to] require us to, with people who are held overseas, to release them," Holder said.

But Holder added that in the case of Mohammed, "there are other legal things we can do with him"—apparently a reference to other charges the Justice Department might bring against him beyond orchestrating the 9/11 case.

"You can certainly hold people in connection with matters that are pending," said Holder. "And we have the capacity to make sure that Khalid Sheikh Mohammed is not released into the United States."