Criminal Act or Act of War?

" Critics say -- already that this will be the most high profile and heavily guarded terror trial ever in American history. And it is set out to take place in New York City. Attorney general Eric Holder announcing that self proclaimed 9/11 mastermind Khalid Sheikh Mohammed and four other suspects. Will they tried just steps away from ground zero where the world trade towers once stood. It's a decision that brings huge legal implications not to mention security concerns. But attorney general holder says he's reviewed all the evidence. And feels certain of -- quote satisfactory. Result so what does a former attorney general think about that. Michael Mukasey was president George W. Bush his last attorney general and also so interestingly isn't -- judge he presided over the trial following the 1993 World Trade Center bombing. This is an exclusive interview on Fox News Channel an attorney general Casey is joining us now live in studio. It is very good to see judge thank you for being with us today for inviting. There are so many questions about this but big picture what is at stake for our country to have these terrorists brought to New York City. And this high profile trial take place in lower Manhattan."

" That picture. Is what's at stake is trying them in the wrong place under the wrong circumstances in the long form. After an -- eleven. We recognize that we were -- war congress created. A forum that was established specifically for this kind of case -- military tribunal. We had used military tribunal since the revolutionary war we use them during World War II after World War II it. They are. Forms that allow the presentation of evidence in a controlled atmosphere where you can limit access to classified information. And we you can receive evidence was gathered on the battlefield not necessarily under the -- of conditions in which police gather evidence and conventional case. That's not true in federal court."

" Speaking -- collected in the battlefield these five suspects. -- picked up in Pakistan. They were not on US soil so the question is -- the military tribunal is not appropriate in that instance for example. The Jose Padilla case that -- Padilla as you. -- over as the judge. He was US citizen. If I'm correct so that's a different situation -- terrorist highway you have -- have been affiliation with our country who has constitutional rights. If they're picked up in Pakistan. When one of the military tribunal be appropriate if not there."

" That's an excellent question and it seems to me if it wouldn't be appropriate there wouldn't be appropriate anyway. What rights a -- alien has in custody the United States is very much an open question but one thing that is clear is that. A connection between that foreign alien in the United States establishes. Those rights that's why we try to keep people away when Haitians were trying to come here we talked to the North American soil. Not a mouse but simply because of somebody lands here. Then they automatically have the same rights that American citizens. When these people are brought here they will have the same rights that you went on would have been an American court."

" Let's talk about that judgment KC some of the confessions. In particular Khalid Sheikh Mohammed confessed he was ready to plead guilty in a military tribunal. Now essentially with the civilian court trial we start at. Square work. We have to start all over that confession gets tops. He can raise defenses a change of venue could be pursued may be there could be an acquittal. Am I overstating it."

" Well I think that that's a possibility I don't think frankly that's a likelihood there's so much evidence with respect him so many statements he made spontaneously. And decides the questioning of him was not about getting a confession was about getting intelligence and he provided that by the truckload. The real problem is that there's other evidence that may very well come from classified sources that. Would be easier to handle in -- military tribunal much harder to handle on the civilian tribunal completely apart from that to putting. College Sheikh Mohammed. Ramzi Binalshibh and the others on the kind of states that terrorist wanna be on. They wanna be on the big stage and has no biggest stage in new York and they proved that in. Venues from Mumbai to the courtroom in in Virginia. Where Moussaoui carry on for a year after a plea of guilty in order to turn his trial into a circus of course -- by Wasilla. Terrorist shooting up the city to attract attention to themselves they want a big stage and the gonna get it extends from the come here."

" Now the families of some of the 9/11 victims and they're not alone in this are concerned about them happy that stage. Possibly. Spewing. -- hottest propaganda. And recruiting perhaps. Noon. Terrorists both on our homeland and overseas and let's face it this is probably going to be one of them. Largest covered. Trials that we've seen by the media how concerned are you about that. And what specifically can a judge do it in that courtroom took control it."

" A judge has a variety of tools available to control it from. Physically. Shackled defendant to removing a defendant making watched the proceedings on television. But of course no judges gonna wanna do that. In the view of the world because then people will claim that the trial is somehow unfair and so you what you do run into that problem. Defendants to be excluded defendants can be restrained. That I think is less of a problem than what they say on the outside. What they issuing statements that are not even part of the prophecy."

" We the world watching. Why do you think these five suspects -- calm and have a civilian trial in New York City. -- USS Cole suspects will be handled and tried in the military tribunal. As a former attorney general why did Eric Holder the attorney general now. Split these two and give them a different. Protocol in terms of pursuing justice hate to answer a long question with a short answer would -- to me. Really so there's no reason that the two would be treated differently -- I suppose one could rationalize it by saying that those who tactical attack the military target. On the other hand those who attacked the trade center were launching a war they said so and we acknowledge that they were. So I don't really see any substantive difference let's talk about sentencing. -- attorney general Eric Holder said in this press conference yesterday that he is confident there will be a satisfactory. Result. He did not saying necessarily that he would expect and can guarantee a conviction. What would you advise this judge in terms of sentencing the death penalty on the one hand some would argue would. Deliberate martyrdom."

" Well I'm not -- who advised the judge and sentencing in a capital case is not really up to protect it took to a jury. I'm so far as martyrdom is concerned. Khalid Sheikh Mohammed said that that's what he wants. I don't know exactly how someone would be executed after. Well after civilian trial there was certainly executed by the executed by lethal injection. On this dying like a sick dog or cat is martyrdom then. I suppose that's fine. If that's what he sees it I see no reason not to accommodate. Because capital punishment is among other things statements that these are people we don't want to have on this earth among civilized human beings. So I don't see but particularly dangerous in imposing capital punishment but again that's for the jury. In a civilian case not to cut interest think Karen can they get a fair jury in New York. Of course they can get a fair jury in New York I think all what's necessary is to get citizens who can will be an oath. To decide the case based on the evidence presented in court. They don't have to never heard of it obviously it -- to have been in a coma for the last twenty years not to refer -- it. But they have to get people who can look at the evidence in the courtroom and decide the case based only on the evidence and we have very intelligent. Honest decent citizens in the city you can do that. That's not the problem. What is the problem the problem is that you provide a stage that this becomes a focus for Jihad the activity. And it provides the precisely the kind of for them but they want and precisely the kind of form that is not suited to the presentation of the kind of evidence we've got. Because we have investigated this case as a conventional criminal case we've gathered evidence on the battlefield we have intelligence evidence that could be compromised. In this kind of proceeding it is precisely the wrong form for that reason judge."

" We can see I've talked to families. Some are in favor having the trial here they want to be in the courtroom they want to look these defendants. So to speak in the -- I wanna be there. Others say that they didn't do when not. That its heart wrenching to go through all the details again and it's too close to where their loved ones say they often quote to me 20000 body parts. What found so close to where this trial will take place -- may do anything about this. May."

" As a group I don't think -- other than to speak out when we bring prosecutions in this country would bring them in the name of the state it's not. The needs of the families against the defendant it's the United States of America and the defendants' sole responsibility for proceeding is in the hands of the government. And all that they can do -- to try to convey their point of view to their government representatives and see if they take --"

" The -- and I just have to ask before you go the attorney general made this announcement with the president on its way to an overseas trip is that standard protocol that the attorney general. Can do this in enough himself for. In your experience with the president normally have been by her side."

" Well. I don't think there's anything analogous to this I'm not going to second guess the way it was done. Certainly. I can't believe the president was ignorant of and -- that it was a huge decisions so regardless of who announced it. Is the decision of the administration has any decision."

" By the Justice Department and thank you is that really hurt me when they played very much for sharing our unique insight on this site thanks for being with us."