Geraldine Davie has already seen one 9/11 co-conspirator tried in the United States, and that was enough for her. "I went to the Moussaoui trial every day," says Davie, of the years-long prosecution of the "20th hijacker" Zacarias Moussaoui in federal court in Alexandria, Virginia. "That was a travesty."
Davie, a petite brunette, is quick to proclaim her Italian, New York heritage, but her accent says it for her. Her daughter Amy O'Doherty-- Irish-Italian, she specifies, as she pulls out a photo of a grinning, lightly freckled young woman--had graduated from college and gone to work at Cantor Fitzgerald in the World Trade Center 16 months before 9/11.
"I had just moved her into Manhattan, into Soho . . . weeks before," Davie says. "She had one foot in young adulthood and one in maturity." Davie shifts from tenderness when talking about her daughter, to toughness, when it comes to her murderers.
"This fellow [Moussaoui], you know what he would do? He would wait until the judge left the courtroom, and the jury left, and then he would spew this terrible anger," she says. "Hateful, hateful stuff. . . . We're gonna have that in New York? For years?" The trial, which ended with Moussaoui's guilty plea, was notorious for its theatrics. Moussaoui represented himself and was noted for such legal arguments as, "God Bless Mohammed Atta" and "America, you lost. . . . I won."
Sitting three rows behind Attorney General Eric Holder Wednesday in a cavernous Capitol Hill hearing room, Davie had come to let him know she doesn't want to face such a spectacle again.
She joined 12 other 9/11 family members at a Senate Judiciary Committee hearing on the Obama administration's decision to try Khalid Sheikh Mohammed (KSM) and four other 9/11 planners not as enemy combatants and war criminals before a military commission, but as civilians in federal court in New York City. They brought with them more than 100,000 signatures gathered by three 9/11 and national security websites--TheBravest.com, 911Familesfor-America.org, and Keep-AmericaSafe.com (on whose board this magazine's editor serves).
Holder spoke of the trials as a correction of Bush-era delays and an overdue attempt to seek justice for the victims of 9/11, but many present disagreed with his definition of justice. "To give these animals due process and to afford them constitutional rights is obscene," said John Owens, whose brother died in the towers on 9/11. (Peter Owens would have turned 50 next week.) "It angers me to no end that this guy is gonna get a platform, paid for by us, in the shadow of Ground Zero where my brother died."
Senator Patrick Leahy, the Vermont Democrat who chaired the hearing, touted the backing of Peaceful Tomorrows, a pacifist group of 9/11 families, in favor of the Holder plan, but the showing of support in the gallery was sparse. The antiwar protesters of Code Pink only mustered two uncharacteristically quiet women. The Jersey Girls, a politically active group of 9/11 widows, released a statement supporting the decision two days after the hearing.
At times, emotions bubbled over, causing Leahy to call the crowd to order once. Holder's assertion that "failure is not an option" in these prosecutions raised senatorial eyebrows and snickers from the crowd. "Well, that's an interesting point of view," said Herb Kohl (D-Wisc.). Chuck Grassley (R-Iowa) added, "I don't know how you can say failure is not an option. I'm a farmer, not a lawyer, but it seemed to me ludicrous."
Jon Kyl, the Arizona Republican, raised cheers from the gallery with his sharp questioning of Holder, who contended that his decision to bring 9/11 terrorists to civilian courts was based, not on politics, but on where he'd have the best shot at conviction.
"How could you be more likely to get a conviction in federal court when Khalid Sheikh Mohammed has already asked to plead guilty to a military commission and be executed," he asked. "How can you be more likely to get a conviction in a [civilian] court than that?"
Peter Regan--who lost his dad, a New York firefighter, on 9/11--is disturbed by the plan on several fronts. After 9/11, the then 20-year-old joined the Marines, serving two tours in Iraq before coming back home to follow in his father's footsteps in the fire department. The possibility that they may face trial in civilian courts means suspected terrorists captured on the battlefield may have to be informed of their right to counsel and to remain silent.
"I just couldn't imagine," Regan says. "We're soldiers and Marines and sailors. It's not our job. We're not cops. We learn Miranda rights once we come back if we want to pursue that career."
Holder could not answer when asked by Lindsey Graham if combatants apprehended on the battlefield had ever in U.S. history been prosecuted in federal courts.
"I'll answer it for you, and the answer is no," the South Carolina Republican said. "We're makin' history. And, we're makin' bad history."
As Holder left the hearing room, Alice Hoagland confronted him about his decision. Hoagland's son Mark Bingham died on Flight 93 in Shanksville, Pennsylvania. "I have great respect for you and your office, but I have to say that I take great exception to your decision to give short shrift to the military commissions," Hoagland said.
Hoagland was at the Guantánamo Bay detention facility where KSM is being held last December 8, when he and four other 9/11 conspirators expressed their desire to plead guilty and be executed. The pleas were not accepted because of questions about the defendants' competence to represent themselves and whether the death penalty could be applied without a jury verdict.
"I think I speak for many 9/11 families when I say we are heartsick and weary of the delays and the machinations, and I'm afraid that the theatrics are going to take over at this point," Hoagland told Holder.
The attorney general repeated to her his argument that his decision is based on evidence he can't disclose, which makes federal-court prosecution preferable to military commissions.
"This is almost a 'trust me' thing, I suppose," he said. "There are reasons why bringing this case in an Article III [federal] court, when it comes to the admissibility of certain evidence, is really the right way to go, and really maximizes our chances of getting a successful outcome."
Davie was not reassured, as she imagined herself and other 9/11 family members sitting in a courtroom in lower Manhattan, watching KSM rant for the gathered media.
"We struggle every day to get up out of that bed and make a life, and I'm preparing for a wonderful Thanksgiving, and now I'm being thrown back into this horrible place," she said. "I should be having grandchildren; I should be going to weddings and parties and family gatherings, and look-- my life demands now that I do this. Terrible."
Mary Katharine Ham is a staff writer at THE WEEKLY STANDARD .