Another strike against civilian courts, critics contend, is the possibility that the proceedings will expose classified information to the public and, as a result, to al Qaeda. Holder and supporters counter that there is a long history of using classified materials in public trials while still protecting national security. Legal analysts note that determining which classified information is eligible for use in a trial is often the subject of lengthy legal fights, which happened during the Moussaoui trial.
Also complicating the admission of evidence at a trial in a civilian court is the fact that Mohammed was waterboarded while in U.S. custody. In 2003, he was subjected to the simulated drowning procedure, which Holder has called torture, more than 180 times during a 30-day period. Experts say that any evidence obtained as a result of such treatment would likely not surface at a trial.
The families of the victims of 9/11, like the American public, are divided over the decision to hold civilian trials. Polls show New Yorkers slightly in favor of them, by 45 percent to 41 percent, with the remaining 14 percent undecided. But critics contend that the proceedings will give Mohammed and his coconspirators a soapbox from which to spread al Qaeda's message and make a farce of the proceedings. Alice Hoagland, whose son died on Flight 93, confronted a somber attorney general last week in the crowded Senate Judiciary Committee room after his testimony amid a slew of television cameras. "I am afraid that the theatrics will take over at this point," she said.
Holder had earlier dismissed those concerns. "If Khalid Sheikh Mohammed makes the same statements he made in his military commission proceedings, I have every confidence the nation and the world will see him for the coward he is," he told senators. "I'm not scared of what Khalid Sheikh Mohammed will have to say at trial, and no one else needs to be either."
In the end, the biggest problem for Holder and the Obama administration is choosing which forum, civilian trial or military commission, is appropriate for each suspected terrorist. Holder struggled to explain to senators how the decisions were made. Glen Greenwald, a constitutional lawyer and influential blogger for Salon, argues that Holder "can't possibly defend the sanctity of jury trials . . . since he's the same person who is simultaneously denying trials to Guantánamo detainees by sending them to military commissions and even explicitly promising that some of them will be held without charges of any kind." Critics also note that the trials may be less fair than they at first appear. In July, the Pentagon's general counsel, Jeh Johnson, told senators that even if suspected terrorists are acquitted in court, the government has the authority to continue imprisoning them.