Eric Holder And The Politics Of Terrorism Trials.

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Eric Holder And The Politics Of Terrorism Trials

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

Republicans have been attacking Attorney General Eric Holder and
President Obama for the decision to give a civilian trial to Khalid
Sheikh Mohammed, the alleged architect of 9/11, instead of trying him
before a military commission; and for treating the Christmas Day bomber,
Umar Farouk Abdulmutallab, as a civilian, as opposed to an enemy
combatant, getting him a lawyer and reading him his Miranda rights.

My guest, Jane Mayer, writes about how Holder's decisions have
galvanized Republicans. Her article, "The Trial: Eric Holder and the
Battle Over Khalid Sheikh Mohammed," is in the current edition of the
New Yorker. She covers politics and national security for the magazine.
She's also the author of the 2008 book "The Dark Side: The Inside Story
of How the War on Terror Turned Into a War on American Ideals."

Jane Mayer, welcome back to FRESH AIR. Is it fair to say that there's a
parallel war to the war against terrorism, and that's a political war at
home, about how to handle alleged terrorists?

Ms. JANE MAYER (Author, "The Trial: Eric Holder and the Battle Over
Khalid Sheikh Mohammed," New Yorker; Author, "The Dark Side: The Inside
Story of How the War on Terror Turned Into a War on American Ideals"):
There certainly seems to be, and it seems to be getting fiercer by the
week.

GROSS: You describe this new political organization called Keep America
Safe that's all about this political battle. What's this organization,
and who's behind it?

Ms. MAYER: This is an organization that was actually founded by former
Vice President Cheney's daughter, Elizabeth Cheney, and Bill Kristol,
who is a conservative pundit who has worked for a number of Republican
administrations. And then the third partner is Debra Burlingame, who is
the sister of one of the pilots who was killed in the 9/11 attacks, and
she is a Republican activist.

So the three of them have founded this political action group that is
dedicated basically to simply attacking Obama on national security
issues. They are going to get involved in congressional races and to
make sure these issues come to the forefront, and they pretty much argue
in every way they can that in a way that would sort of vindicate the
Bush administration policies by attacking the Obama ones.

GROSS: The Bush administration policies being what, in this instance?
Like, what policies are they trying to bring back or justify?

Ms. MAYER: Pretty much the whole constellation of issues that have to do
with how you fight terrorists, and basically, the most controversial
parts of those are – have to do with how you detain terrorists and how
you interrogate terrorists.

And during the Bush years, America changed its stance on this subject.
Before 9/11, terrorists were treated as criminals, which is how the rest
of the world continues to treat them. They were caught, they were
charged, they were read their rights, they were put on trial, and they
were convicted and - just like every other criminal.

But after 9/11, Bush declared the war on terrorism and basically said
that terrorists were not criminals, they were warriors of some sort. And
this then completely changed the category of treatment. It became a war
crime, and they became – Bush argued that they should be treated in a
military system instead of in the regular criminal system.

And what that actually meant, sort of, practically speaking, was that
the Justice Department took a back seat to the Pentagon in prosecuting
terrorists.

GROSS: Now, you mentioned that this new political organization, Keep
America Safe, that wants to justify Bush administration terrorist
policies and attack Obama administration policies, you said they want to
fund Republican congressional races, races of people who have a similar
point of view on how to deal with alleged terrorists. This issue figured
prominently in the campaign of Scott Brown.

People think oh, it was about health care, he won because of health
care. But you spoke with his chief political advisor, and what did he
tell you about how terrorism figured into his victory?

Ms. MAYER: Well, yes, his name is Eric Fehrnstrom, and what he told me
was surprising, because people think that the Scott Brown victory was
based on Brown's attack on Obama's health care policies. But what Eric
Fehrnstrom told me was that, in fact, the most potent issue that they
had was attacking Obama on terror, and particularly on the way that
Obama handled the Christmas Day bomb suspect; and also Obama's decision
to try Khalid Sheikh Mohammed in the civilian system rather than in
military tribunals.

Now these are – it's funny because these seem like they're actually very
legalistic and complicated issues, but what Scott Brown was able to do
was reduce them to a simple soundbite, which was basically saying some
people think that we need to give constitutional rights to terrorists -
not me.

So anyway, it worked very well for them, and the soundbite on the other
side, for the Obama administration, is much more complicated, and in
fact, the Obama administration for some reason really was not out front,
politically, and didn't see this coming, I think.

There had been rallies, and you asked me earlier about what Keep America
Safe did. One of the things that they've done is they've helped to
promote public demonstrations. And there was a pretty – there was a
small but kind of virulent rally in New York City that took place in
early December where they pushed these issues very hard.

GROSS: And what was the rhetoric like at the rally?

Ms. MAYER: The rhetoric was – I was there. It – the rhetoric was as
poisonous as any rally I've ever attended, and I've been covering
politics for 25 years. Some of the things that were said by the crowd we
at the New Yorker were unable to print because it was really too vile.
But basically, the crowd was shouting at a Jumbotron that showed
coverage of Eric Holder, the attorney general's, testimony in Congress
on the subject of giving civilian trials to Khalid Sheikh Mohammed.

And basically, the crowd was screaming things like traitor and communist
and hang him, and they literally were...

GROSS: Hang Eric Holder.

Ms. MAYER: Hang Eric Holder, and they were also – they were actually
literally saying lynch him, of Eric Holder, who is of course our first
black attorney general.

So it was an ugly scene. It was an upsetting scene, and the crowd was
upset.

GROSS: Well, let's talk about how Eric Holder is trying to handle the
trial of the, quote, underwear bomber, Umar Farouk Abdulmutallab.
Republicans have criticized attorney general Eric Holder for allowing
Abdulmutallab to be read his Miranda rights. What do you know of why
Holder decided to allow Abdulmutallab to be arrested as a criminal
suspect, as opposed to an enemy combatant, which would put him in a
military tribunal situation?

Ms. MAYER: Well - and I've spent a fair amount of time talking with Eric
Holder about all these issues. I've been lucky enough to have had three
long interviews with him recently. So I've, you know, been able to kind
of draw him out on these issues.

Basically, the treatment of Abdulmutallab, the Christmas Day bomb
suspect, was exactly like the treatment of every other terror suspect
who's been ever been captured inside the United States. It's completely
consistent with the Bush administration's treatment of terror suspects
and previous administration's treatments of terror suspects. And there
really wasn't a question of sending in the Army or the, you know, the
special forces or something and grabbing this man at the airport in
Detroit.

A senior administration official in the White House said to me there's,
you know, that – there is no alternative justice system. That's a kind
of fantasy that takes place in the show "24" or something. We – the
Constitution does not allow the military to just come in and take people
away to some dark place without any kind of judicial supervision and
make them talk - whatever that would really mean.

There isn't an alternative. And so what Holder did in this instance was
what everybody has done in such instances. He had the FBI arrest the
man, along with the customs agents and the airport law enforcement
officials, and then question him as best they could under something
called the Public Safety Exception, which allows the law enforcement
officials to start interrogating somebody even without giving them their
Miranda Rights if the situation seems that the public safety is in
danger.

And they did that for about 50 minutes, and they got a fair amount of
information out of Abdulmutallab. They found out where he was from,
which was Yemen. They found out where he got his explosives in Yemen,
which was from the al-Qaida group there, how he had been trained, who'd
trained him.

He actually gave them a good bit of information, and then he had to go
in for medical treatment, and after that medical treatment he stopped
talking, and at that point he demanded a lawyer. And so when he had
already stopped talking and demanded a lawyer, they read him his rights
and got him access to a lawyer, which is exactly how the Constitution
requires that such a situation be treated.

So anyway – and Holder, actually we've just learned recently, not only
did what everybody else has done in such a situation, but he also
notified the Republican leadership in Congress that this was what they
were planning to do, and though the Republicans have turned this into
kind of a political football game and really made a big deal about it
later, at the time they raised no questions about. Nobody would. It's
very much what we have always done.

GROSS: What do you know about when Abdulmutallab's family was called in,
because...

Ms. MAYER: Well, this is very interesting too, I think. Basically, there
are two pieces of the Christmas Day bomb suspect story that involves his
family.

The first part was, before he was caught, his father went to United
States authorities and warned them that he thought his son was getting
sucked into some kind of dangerous militant radicalism that was anti-
American, and he worried that he might do something that was dangerous
to America. So he voluntarily came to U.S. officials.

Then later, after Abdulmutallab was taken into U.S. custody, the FBI and
CIA working together were able to get other family members, not the
father, to work with them and come over to America from Nigeria, where
he is from, and to convince him to cooperate further with the United
States government and start talking more in order to try – you know, in
the end of the day, I think probably the incentive is that this suspect
now faces – he's 23 years old, he faces life in prison, and the only
chance he has of any kind of deal ever of getting out of prison would be
to become an informer on the subject of al-Qaida, and his family has
convinced him to start doing that.

What's important about this is that the critics of our legal system -
and this is, again, something that the legal system does often, is to
work with families and try to work out sort of plea deals that get
cooperation. People who are against this system have suggested that they
would do better with Abdulmutallab if they had just taken him and
started to use kind of tough measures of some sort and not given him to
law enforcement authorities but to the military.

But what Holder told me was: look at the – look at the facts here. The
things that have worked are working with his family. And Holder said to
me: His family would have never worked with us if they thought that the
son was going to be taken off the face of the Earth and disappeared into
a black prison site and tortured.

You know, in order to get the kind of cooperation we need, we have to
have a system that is consonant with American values, is what Holder
argues.

GROSS: Now, Republicans have been making a big issue about how the Obama
administration is being soft on terrorists and, you know, Mirandizing
them, making fun of the Obama administration giving Miranda rights to
alleged terrorists.

Former Vice President Dick Cheney has equated Attorney General Eric
Holder's approach to handling terrorism with giving aid and comfort to
the enemy.

So let's compare how Holder handled the Christmas Day bomber with how
the Bush-Cheney administration handled Khalid Sheikh Mohammed, who is
believed to have been one of the masterminds of 9/11. He was
waterboarded 183 times. So what did we get from that?

Ms. MAYER: Well, I think that Vice President Cheney would say that we
got a lot of intelligence out of Khalid Sheikh Mohammed. The record,
unfortunately, is not open to public inspection. So we can't really see
what he told us. But we also got, because he was waterboarded 183 times,
a big legal problem, which is once somebody's rights have been violated
like that, and you know, under our Constitution, nobody can be subjected
to cruel and unusual punishment or to torture, and once that's happened
to a suspect, it gives his lawyers the right to argue that, that, you
know, none of the testimony that was wrung out of him that way is usable
in a trial. It's all considered tainted.

And so now the Obama administration inherits this record of intelligence
information that was taken from Khalid Sheikh Mohammed under coercive
sort of situations, and they can't use it, and it makes it much harder
to make the case against him.

GROSS: My guest is Jane Mayer. We're talking about her article in the
current New Yorker, "The Trial: Eric Holder and the Battle Over Khalid
Sheikh Mohammed." She covers politics and national security for The New
Yorker. More after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Jane Mayer, and she covers politics and national
security for The New Yorker. Her current article is called "The Trial:
Eric Holder and the Battle Over Khalid Sheikh Mohammed." The article is
really about the larger battle in the United States over how to deal
with alleged terrorists and how Republicans are attacking the Obama
administration. It examines how the Obama administration is trying to
proceed.

Let's look at two examples of how the Bush administration took alleged
terrorists and moved them from the criminal justice system into military
custody for interrogation and detention. I'm thinking of Jose Padilla
and Ali Saleh Al-Mari(ph). What was the outcome with them?

Ms. MAYER: Well, this is a good question because these are really the
kind of guinea pig cases that are the only ones where – in recent
history where the government has turned a suspect over to the military
for questioning inside the U.S., a terror suspect. And they didn't go
well, is the answer, which is so interesting because, you know, there's
this myth that somehow the military is going to be tougher and more
effective in making terrorists talk, and actually it's – the record does
not support that conclusion.

In the case of Jose Padilla, he was held for – at least for the first
seven months, there's a document I've seen where the military that's got
custody of him is incredibly frustrated and they're complaining. They
have not been able to get a word out of him that's of any use
whatsoever.

I think eventually he cooperated somewhat, but I don't think they got
anything, from what I've been told, that was considered particularly
interesting or, you know, actionable intelligence from Padilla.

And Al-Mari was even more difficult to crack. In fact, they never did.
The military held Al-Mari for six years, and he was in solitary
confinement, and they tried all kinds of things, but he never gave them
a shred of intelligence.

So there really is no reason to believe that the military is any better
at making people talk than the FBI is. In fact, the FBI has actually a
pretty strong record on getting people to talk, because again, they have
incentives that they can give people. They can work with lawyers to work
out plea deals. And what's important when you take a terror suspect, I'm
told, is to try to get them to talk fast.

You want to get them to give you intelligence when it's still fresh and
maybe before the people that they've been working with in another
country know that they've ever been captured. Time is of the essence,
and in the two cases where they've tried this with the military, it took
months and years, and in fact in some cases never did they get any
intelligence out of the people at all.

GROSS: You know, ironically, the people who the Bush administration sent
to the criminal courts, those people are – some of them are serving life
sentences now, like Richard Reid, the shoe bomber. Give us some other
examples of how alleged terrorists were handled in the criminal courts,
what the outcome was.

Ms. MAYER: And Zacarias Moussaoui is also serving a life sentence. He
was the person who at one point they thought was the 20th hijacker who
was missing. I think he was more, actually in retrospect, someone who
was going to be a second wave of al-Qaida.

But he and Richard Reid are, you know, are serious al-Qaida terrorists,
and they were put on trial by the Bush administration, which is now –
members of whom are now criticizing Obama for doing exactly the same
thing, and they were very successful in convicting these people.

And at the time, their convictions were celebrated by some of the people
now who are criticizing Obama. In fact, really, if you take a look at
the numbers, the Bush administration convicted some 150 terrorists on
terror charges after 9/11, and three in military commissions. Vastly
more people were tried during the Bush years in the regular civilian
courts and with great results.

The courts are – I mean, we have a terrific justice system in this
country, and we have very experienced prosecutors and very sophisticated
judges who can keep order in the court. So there's a good track record
here for the U.S. courts.

GROSS: So why is it, do you think, that Republicans are using this issue
of trying alleged terrorists in the criminal courts? Why are they using
this against the Obama administration when the fact is that the Bush
administration did it too and the Bush administration had much, much,
much more success in the criminal courts than through the military
system?

Ms. MAYER: Well, I think it boils down to what works politically,
basically. There is a serious policy argument underneath this, which is
also true, that the – which is that in the Bush years they tried to
elevate the role of the military in dealing with terrorists, and as one
of the people I interview in my story says, emasculate the Justice
Department, have it play a much smaller role in dealing with terrorists.

And so there is a fight going on about the proper role for the U.S.
courts in dealing with terrorism, but it's more symbolic than actual,
and the problem for the Obama administration is that there's a fear
factor here.

People who – people are easily frightened about terrorism for obvious
reasons, and the critics of the Obama administration are arguing that
he, that Obama is weak because he's too legalistic.

So we have, for instance, Sarah Palin in her speech at the Tea Party
convention saying we don't need a law professor fighting terrorism, we
need a commander in chief.

So she's suggesting Obama, because he wants to work within the U.S.
legal system, is somehow weak. The problem is, the president takes an
oath to uphold the U.S. Constitution. He has to be both commander in
chief and he has to uphold the laws, and it's not an either-or choice,
and it's a false choice to make it sound otherwise.

GROSS: Jane Mayer will be back in the second half of the show. Her
article, "The Trial: Eric Holder and the Battle Over Khalid Sheikh
Mohammed," is in the current edition of The New Yorker. You'll find a
link to the article on our Web site, freshair.npr.org. I'm Terry Gross,
and this is FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. I’m Terry Gross back with Jane Mayer. She
covers politics and national security for "The New Yorker." We're
talking about her article "The Trial: Eric Holder and the battle over
Khalid Sheikh Mohammed." She says Attorney General Eric Holder's choice
of a civilian trial for the architect of 9-11 has galvanized Republicans
who want him tried before a military commission.

Let's look at the trial of Khalid Sheikh Mohammed or the attempted
trial...

(Soundbite of laughter)

GROSS: ...of Khalid Sheikh Mohammed. Eric Holder wanted to hold the
trial in New York and he said it was a fitting place; it was the site of
the World Trade Center attacks. What were some of his other reasons for
wanting to hold a criminal trial in New York?

Ms. MAYER: Well, in that there's a death penalty statute and I think
they made it pretty clear they're going to seek the death penalty for
Khalid Sheikh Mohammed. In that statute, it says you should try the
suspect in the place where the crime was committed. And certainly, there
was, you know, incredible loss of life on 9-11 in New York. They had,
the only other choices were Pennsylvania and Virginia where the Pentagon
is. So they chose New York, and they chose it for other reasons as well.
The judges in New York have dealt with earlier terror trials. They’ve
dealt with earlier al-Qaida suspects, actually, very well.

In the 1993 bombing of the World Trade Center case took place there and
those suspects have all been put away for multiple life sentences and
are serving in maximum security prisons. So there's experience in New
York, and the prosecutors there are fantastic; they're some of the best
in the country, and the FBI there has dealt a lot with terrorism, so
they can support that kind of prosecution.

GROSS: Now Holder had gotten key people in New York to agree to this,
including Mayor Bloomberg, Police Commissioner Raymond Kelly, Senator
Chuck Schumer, and then they turned against the idea. What changed?

Ms. MAYER: Well, there's some - some of this remains somewhat
mysterious. But yes, Holder did get them all on board and then they
flipped, basically, as the politics started turning against them. The
neighborhood groups started to get really worried about it. The
merchants and real estate people who work in the downtown area also
started turning against it. They worried, for business reasons, that
traffic would be tied up and - or that people might be frightened and
not want to come near the area.

And then, of course, what happened was - I think that the - probably the
seminal of that was that the Christmas Day bomb attempt happened, and at
that point, people became frightened again about terrorism. It kind of
renewed all of these worries about whether people could be safe in this
country and that was exploited by political pundits of Obama and fear
was whipped up, and the next thing you know, all of the local officials
started crumbling.

GROSS: What are some of the legitimate concerns that New Yorkers have
about having the Khalid Sheikh Mohammed trial in Manhattan - concerns
about safety, security expenses?

Ms. MAYER: I think that there are fears that many people have who are,
that are - that the trials will maybe rile up terrorists watching around
the world who may try to attack the courthouse or attack the
neighborhood or New York again. Just that it would kind of whip up a
certain amount of tension, so that there's that worry. And I think,
certainly there were financial worries. I mean, what happened was that
Ray Kelly, who's the commissioner of police in New York, was put in
charge of coming up with the cost estimates for this trial and the cost
estimates just grew and grew and grew. So it started at about $75
million dollars a year and then it went to a couple hundred million a
year. And then by the time Kelly folded and turned on these trials, he
was saying it was going to cost a billion dollars for over several
years, and that kind of money just seemed absurd to many people.

So those were legitimate concerns I think that many people in New York
City have. And to some extent they feel that, you know, they’ve gone
through a lot already in this neighborhood. My sister actually lives
there and I was talking to her about it. She lives just a few blocks
from where that courthouse is. And she said, you know, we're just trying
so hard to not think about 9-11 every day and this is just going to
bring it back again. I mean they're many people for many different
reasons did not welcome this. And I think I can certainly understand
that sentiment. But part of the reason that it didn’t go well for the
Obama administration, I think, is they didn’t really make the argument
well themselves.

For some reason, they made it always sound like it was only Eric
Holder's decision rather than Obama's. In fact, the day that Eric Holder
announced this decision to try Khalid Sheikh Mohammed in New York, Obama
was in Asia and so not standing there with him and backing it up. He
gave a supportive statement, but from all away around the world. And
they haven't spoken up about it that much and they haven't really sold
it that much, politically. And meanwhile, people who opposed it were
very outspoken.

GROSS: Is there a way that Khalid Sheikh Mohammed can be legally tried
in the middle of the desert or in some like unpopulated place in the
United States where security wouldn’t be as much of a concern, where
there wouldn’t be neighborhoods that would be impinged on, but there
could still be a criminal court trial?

Ms. MAYER: You know, I've been asking these questions and it creates a
kind of a novel situation and I'm not really sure what the answers are.
Apparently they could pick a - for instance, a military installation of
some sort and hold a federal criminal trial there. So that's a
possibility if they can find a military installation that would work for
it. Though, for instance, Chuck Schumer, who is the senator form New
York who was originally in favor of these trials, has said he's against
holding these trials now, anywhere in New York State, so that kind of
rules out West Point, for instance or Stewart Air Force Base in New
York. So you’re going to need some buy-in from some local officials and
I'm sure they're working hard behind the scenes to see if they can't
find some.

GROSS: Now, President Obama had said that the Bush administration's
legal approach had created a mess - a mess inherited by the Obama
administration. One of the people you spoke to for your current article
in "The New Yorker" was Amy Jeffress, Eric Holder's national security
advisor. She said that the Bush administration clearly hadn't planned on
prosecuting anyone. Instead, it was let's take a shortcut and put them
in Gitmo. Can you explain what she meant by that?

Ms. MAYER: Right. And Amy Jeffress is a career prosecutor herself. She
was in the U.S. Attorney's Office in Washington, so she's had a lot of
experience prosecuting cases and she's - her job was to review the cases
of the detainees down in Guantanamo. And the hope was that they could
bring charges against them, put them on trial, convict those who are
guilty and send the others home some place, you know. But what happened
was, when they started opening up these cases - they inherited them from
the Bush administration - they looked at the files and, first of all,
the files were all over the government. There was no sort of centralized
place where they were. They were in many different bits and pieces of
evidence and different agencies. And when they put all the evidence
together, which she said was, you know, it was pretty thin stuff.

So basically, the emphasis in the Bush years you have to understand, was
on capturing people who seemed like they might be enemy combatants and
taking them off the battlefield and getting whatever intelligence you
could out of them and keeping them from harming the United States. The
emphasis was not on prosecuting them as criminals. And when you look at
these cases, they didn’t do the kind of diligent work that you would do
to prosecute someone. And so it's created a huge legal headache for
them.

GROSS: My guest is Jane Mayer. She covers politics and national security
for "The New Yorker."

We'll talk more after a break.

This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Jane Mayer. She's a staff writer for "The New
Yorker." Her article in the current edition is titled "The Trial: Eric
Holder and the battle over Khalid Sheikh Mohammed."

There are disagreements within the Obama administration now, about how
to handle the legal experts from the Bush administration who wrote the
memos that justified the use of waterboarding and other extreme
interrogation techniques. Eric Holder has argued that these people
should be prosecuted. He studied under Telford Taylor, who was one of
the prosecutors at Nuremberg, the war crimes trial in Germany after
World War II, and he felt that it was his responsibility to investigate
torture allegations. But it looks like charges against John Yoo and Jay
Bybee, two of those legal experts from the Bush administration, will not
go further. What is the story behind that?

Ms. MAYER: Well, I mean listen, this is a hot potato subject for the
Obama administration that they didn’t ask for again. They have their own
political agenda and they’ve got enough problems with that and
meanwhile, they’ve inherited again these complicated legal issues from
the Bush years. And so, inside the White House, the people who deal with
politics say don’t look back. Let's not get into things - doing things
that look vindictive or might criminalize what our predecessors did in
trying to protect the country from terrorism. But the problem is, the
lawyers over in the Justice Department who are looking inevitably at -
the law requires them to look back to a certain extent.

The convention against torture, which the U.S. has signed, says that if
they're credible allegations of torture the United States has to
investigate them. So, as attorney general, Eric Holder is - he knows
that's his responsibility and he has seen documents - many of which are
still classified - that suggest that the U.S. interrogators crossed the
line between doing things that were legal and things that might've
violated the law, and he feels he's got a responsibility to at least
have somebody take a second look at that. So he put a special counsel
who was already investigating related matters. He had this man, John
Durham take a look at whether or not the law was violated in these
interrogations where they used things like waterboarding. And that
decision on Holder's part, really annoyed the political people who saw
this as counterproductive. They saw it as something that's going to get
the independent voters who they needed upset.

So it created a big fight and it basically had Rahm Emanuel, the Chief
of Staff to President Obama inside the White House, against doing this
and you had Holder deciding to do it anyway, and Rahm Emanuel sort of
saying to colleagues in the White House, didn’t Eric get the memo? We're
not looking backwards. We're not re-litigating the past. But Holder has
a different responsibility again. His job is to be the chief law
enforcement officer and he's very much tried to do this in what he
thinks of as a non-political way - just look at the law and try not to
get bogged down in politics one way or the other. So it's created a lot
of political friction.

GROSS: Rahm Emanuel, President Obama's Chief of Staff seems to be
playing a pretty significant role in deciding how the administration
will go forward and how it deals with alleged terrorists. Now you write
that Rahm Emanuel feels that he needs the support of Lindsey Graham in
order to close Gitmo. And Lindsey Graham is a proponent of military
commissions, not criminal court trials for alleged terrorists. So how is
that affecting Rahm Emanuel's strategy and how is that strategy
affecting Eric Holder?

Ms. MAYER: Right. Rahm Emanuel's, his portfolio is politics and he needs
to think about how to protect the president and move the president's
agenda forward. And he, from his point of view, if the president wants
to close Guantanamo they're going to need bipartisan support. And the
senator who has been or one of them who's been most helpful on the
Republican side to them is Lindsey Graham on the Senate Arms Services
Committee. And so Rahm Emanuel wants to keep Lindsey Graham working with
them to close Guantanamo. But Lindsey Graham has exacted a price. He
will only help the White House if they use military commissions, not
civilian trials for these major 9-11 suspects. So Rahm Emanuel wants to
make that deal and please Lindsey Graham and get his help in closing
Guantanamo.

But Eric Holder, again, has a different position because he's looking at
the law and he's saying if we want to really truly use the most reliable
means of convicting these terror suspects, and do it in an above board
way that America has - you know, can be proud of we should use our
courts, not some sort of makeshift military commissions that the Bush
administration came up with down in Guantanamo.

And so he went forward, despite the fact that Rahm Emanuel was against
it and decided to go ahead and have this - what he called the trial of
the century in New York. Rahm Emanuel's very unhappy about it and he,
behind Holder's back in the White House, was saying, if we can't close
Guantanamo it's all on Eric. It's his fault basically. And so, you know,
there are these divisions within the administration because they're sort
of, as one person put it to me, the policy goes one way and the politics
goes the other and the two things are in constant tension.

GROSS: So, in talking about this political battle about how to try
alleged terrorists, between Republicans who want military commissions
and the Obama administration that wants criminal trials, are there
advantages of military commissions? Like, why do Republicans - why do
many Republicans prefer the military commissions to the criminal trials?

Ms. MAYER: Well, the standards for evidence are more lenient in the
military commissions, and so it may be easier to convict people, though
I don’t think there's any doubt that Khalid Sheikh Mohammed will be
convicted. I mean, he's publicly stated that he's responsible for the
attacks in many different forms. So I don’t think that's an issue. But
another thing that the military commissions can do is they can be more
secretive. And so they can hold hearings in a more closed fashion when
it comes to national security material. And so the argument is that they
won't spill national security secrets, though in truth, the track
record, again, for the civilian courts is pretty good on this. There is
a process for keeping national security secrets secret.

But I think more than that, there's a symbolic argument for it in the
eyes of the Republican Party, which is they want to say that al-Qaida
terror suspects are waging war on the U.S. They don’t want to treat this
as a criminal attack against the United States. It was very important to
Bush to say this was war, and it put the United States on a war footing.
And so they want to continue to back up the kind of the Bush thinking
that this is a war.

And, obviously, there are parts of the world where it is indisputably a
war. We have soldiers who are fighting in Afghanistan. We’ve got
soldiers in Iraq. And in those places, it clearly is war. But what the
Obama administration is saying, yes, it's a war, but it's also a crime.
And the best way to convict these criminals who are waging war against
us is to use the most reliable system we’ve got, which is the U.S.
courts. And so it's something of a symbolic fight.

GROSS: You covered national security during the Bush administration. You
wrote extensively about how the Bush administration, led by Vice
President Cheney, initiated a lot of polices - some of them not public -
about how to deal with alleged terrorists - how it set up a system, how
it created, in secret, you know, waterboarding. So the Bush
administration accomplished a lot in the sense of moving forward,
whether you agreed with it or not, whether it was in public or in
secret, they moved forward. It looks, by contrast, the Obama
administration is just being stuck every step of the way, stuck in terms
of moving forward, in terms of trying alleged terrorists, stuck in
moving forward in terms of dealing with the alleged terrorists that the
Bush administration left behind.

Ms. MAYER: Well, I don’t think that's completely true. In fact, the
Obama administration has been arresting and, you know, putting through
the legal system a number of terror suspects and getting cooperation
from them. There's David Headley, who was arrested in Chicago who is
connected to that Mumbai attacks, and he's cooperating with the
government. There've been a number of others, as well. And, for
instance, I mean, even for all the noise about the Christmas Day bomb
suspect, he was stopped - thanks not to the law enforcement by the Obama
administration, but he was stopped by the passengers on the plane. And
he is now cooperating with the United States government in just the sort
of normal way.

So they are moving ahead and they are succeeding in - so far, so good -
protecting the country from terrorist attacks. And, you know, and I
think, you know, that their record is, so far, no worse than the Bush
administration certainly, and in some ways better because they're no
longer using things like waterboarding that created a black eye for the
country's moral authority and became recruiting tools for al-Qaida.

GROSS: Do you think that the Christmas Day bomber will face the same
problems in finding a site for a criminal trial that Khalid Sheikh
Mohammed has faced?

Ms. MAYER: You know, I don’t know. I think what we’ve seen really just
in the last few days is that the Obama White House has really belatedly
woken up to this political problem. And rather than just leaving it
unanswered as a fight where the - it was kind of the Republicans took
the lead and nobody pushed back, they're beginning to really push back.

So you can see Obama speaking up about it in an interview with Katie
Couric. And you can see John Brennan, who handles terrorism on the
National Security Council, doing a number of talk shows and saying - he
said that, you know, he's really sick of playing political games with
things that are very serious and where the Obama administration's
handling of terrorists is almost exactly the same as the Bush
administration's was. So they're beginning to push back, and that may
then make it easier as they move forward to take the Christmas Day bomb
suspect, for instance, and try him the usual way.

GROSS: Jane Mayer. Her article in the current edition of The New Yorker
is titled "The Trial: Eric Holder and the Battle Over Khalid Sheikh
Mohammed." You'll find a link on our Web site: freshair.npr.org.

Coming up, rock critic Ken Tucker reviews Galactic's new funk, jazz,
hip-hop album.

This is FRESH AIR.
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Galactic: The Funk Is Always Pushing Forward

TERRY GROSS, host:

Galactic is a funk, jazz and hip-hop band from New Orleans formed about
15 years ago. Galactic is currently a five-man outfit that regularly
recruits guest vocalists.

Rock critic Ken Tucker says Galatic's new album, called "Ya-Ka-May," is
a pure rhythmic pleasure.

(Soundbite of music)

KEN TUCKER: Guided by the drumming of Stanton Moore, Galactic is a funk
band that's always moving forward, while mindful of the past. In the
case of percussion, for instance, one role model would be Ziggy
Modeliste, the off-beat-in-every-sense drummer for The Meters.
Galactic's ears are always open. They seek to collaborate with everyone
from hip-hop emcees to the pianist Allen Toussaint, the songwriter and
producer who made hits in the '50s and '60s with Lee Dorsey, Irma Thomas
and Ernie K-Doe, among many others. On Galactic's new album "Ya-Ka-May,"
they've reached out to Big Chief Bo Dollis from the fundamental New
Orleans group the Wild Magnolias. He provides the vocals for "Wild Man."

(Soundbite of song, "Wild Man")

BIG CHIEF BO DOLLIS: (Singing) (unintelligible)

TUCKER: That's an example of the kind of boundary-pushing Galactic does
with seeming ease, placing Big Chief Bo Dollis' Mardi Gras, Indian-tribe
style in the context of tricky R&B and hip-hop rhythms. They do it again
on "Dark Water," with the New Orleans jazz vocalist John Boutte. He
sings an intentionally murky song in which the drummer is compared to a
fisherman, quote, "poppin' that cork till he gets to the bottom" - in
this case, the bottom of a bass-and-drums rhythm.

(Soundbite of song, "Dark Waters")

Mr. JOHN BOUTTE: (Singing) Oh, dark waters. Oh, dark waters. Yeah. Hey,
bang, I hear tick-tock. Drop, like rolling (unintelligible). Bang, is a
bang, bang, bang. Hybrid, like John Coltrane. Shot, I hear tick-tock.
Drop, like rolling (unintelligible). With a bang, it's a bang, bang,
bang. Hybrid, like John Coltrane. Oh, yeah. Oh, yeah.

TUCKER: If I had to pick one song on this extremely thoughtful party
album as my favorite, it's the one enlisting Irma Thomas, the so-called
Soul Queen of New Orleans. Thomas, now in her late '60s, sounds as
though she's an eager newcomer out to prove herself as she navigates the
drum patterns on this chest-punch of a song called "Heart of Steel."

(Soundbite of song, "Heart of Steel")

Ms. IRMA THOMAS: (Singing) I shoulda known better than to run through a
ring of fire. Ring of fire. Uh-huh. I should've known better than to
shoot with a gun for hire. I shoulda known better to repeat everything I
see. I shoulda known better, but now it don’t mean a thing. Deep down
inside, I got a heart of steel. I'll take the pain, turn the pain turn
to something real. Deep down inside, I got a heart of gold. Got a heart
of gold. It's too late to change the past. I'll be the first to admit
shoulda left well enough alone. I shoulda known better than to think
that I...

TUCKER: Shoulda known better, sings Irma Thomas with Galactic following
her like a team of bodyguards. Shoulda known better than to stare down a
voodoo queen, she sings, and you get the feeling that everyone in that
New Orleans recording studio is taking their voodoo very seriously. Good
voodoo is created by "Ya-Ka-May." The album title comes from the name of
a spicy noodle soup that's supposed to be an excellent cure for a
hangover. I'd say Galactic's "Ya-Ka-May" is an excellent cure for the
anemic rhythms and beats of a lot of current music, its rich sense of
history only adding to its sense of urgency.

GROSS: Ken Tucker is editor-at-large at Entertainment Weekly. He
reviewed Galactic's new album "Ya-Ka-May."

You can download podcasts of our show on our Web site: freshair.npr.org.
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