On December 5th, several hundred people gathered in Foley Square, in lower Manhattan, and withstood a drenching rainstorm for two hours in order to send a message to Attorney General Eric Holder. A JumboTron, set up by the protesters, played clips of Holder’s recent testimony before Congress, in which he explained his decision to hold the trial of Khalid Sheikh Mohammed—the self-proclaimed planner of the terrorist attacks of September 11, 2001—and four co-conspirators in the colonnaded federal courthouse flanking the square, rather than in a military commission at Guantánamo Bay, Cuba. Members of the crowd shouted at the screen: “Holder’s gotta go!”; “Arrogant bastard!”; “Communist!”

Holder’s choice of a civilian trial for the architect of 9/11 has galvanized Republicans. Illustration by Finn Graff

Greg Manning, whose wife, Laura, was severely burned in the World Trade Center attacks, stood before the crowd and said, “Thousands are already dead because of Khalid Sheikh Mohammed’s choices. We do not want to see . . . hundreds of thousands dead because of the Attorney General’s choices.”

Andrew McCarthy, the former Chief Assistant U.S. Attorney who led the prosecution of the 1993 World Trade Center attacks, also gave a speech, declaring that Holder didn’t “understand what rule of law has always been in wartime.” He said, “It’s military commissions. It’s not to wrap our enemies in our Bill of Rights.”

“Traitor!” someone shouted.

Edith Lutnick, who works for the Cantor Fitzgerald Relief Fund, told the crowd, “My brother, Gary, lost his life that day.” The 9/11 victims, she said, “were murdered by the terrorist Khalid Sheikh Mohammed, and we do not want him and his fellow-terrorists tried in that building. . . . We need to tell Eric Holder that we will be victims no more.”

“Lynch Holder!” an onlooker cried.

One protester, Carolyn Walton, who works for a water-filtration company in Manhattan, told me that Holder was “a Marxist mole.” She asked, “How can someone who is not an American have any right to our rights? Holder wants to help the terrorists.”

The rally was organized, in part, by Debra Burlingame, the sister of the pilot Charles Burlingame, who was killed on 9/11 when Al Qaeda hijackers crashed the plane he had been flying into the Pentagon. Burlingame is one of the three founders of Keep America Safe, a new political-advocacy group. Her partners in the venture, which is aimed at attacking the Obama Administration’s national-security decisions and vindicating those of the Bush Administration, are William Kristol, the conservative pundit, and Elizabeth Cheney, the daughter of former Vice-President Dick Cheney. The organization’s political strategist is Michael Goldfarb, a spokesman for Senator John McCain during his 2008 Presidential campaign; among its funders is Mel Sembler, a conservative donor and a former finance chairman of the Republican National Committee.

Despite the prominence of the demonstration’s organizers, the campaign against Holder’s Justice Department was largely overlooked by the national media, which considered the event a fringe affair. But the anger was growing, and it became impossible to ignore on January 19th, when Scott Brown, a Republican, captured the Senate seat left vacant by the death of Edward Kennedy, the Massachusetts Democrat. As Eric Fehrnstrom, Brown’s political consultant, put it to me recently, the “most potent political issue” in the race was voter opposition to the Justice Department’s decision to extend customary legal protections to suspected terrorists such as Khalid Sheikh Mohammed and Umar Farouk Abdulmutallab, the Nigerian suspect who on Christmas Day attempted to detonate a bomb on a Northwest Airlines passenger plane bound for Detroit. In a debate with his Democratic opponent, Martha Coakley, Brown declared, “We’re at war in our airports, we’re at war in our shopping malls. I have to be honest with you, folks. . . . I’m scared at some of the policies I’ve heard.”

In a television ad, Brown, who is in the Army National Guard, flashed a photograph of himself in fatigues and declared, “Some people believe our Constitution exists to grant rights to terrorists who want to harm us. I disagree.” Brown also announced his support for waterboarding suspected terrorists—a tactic that Holder, among others, has denounced as torture. As Brown’s attacks grew more pointed, Fehrnstrom said, Coakley got “bollixed up” defending Obama’s policies. He added, “The obvious follow-up is: Are you going to read Osama bin Laden the Miranda warning if you catch him?”

After the Christmas Day incident, conservative pundits lambasted the Justice Department’s handling of Abdulmutallab, who had concealed in his underwear a bomb that ignited but failed to explode. When the plane landed, Abdulmutallab was taken to a hospital for treatment; at Holder’s directive, he was arrested as a criminal suspect. (The F.B.I., the C.I.A., and the Pentagon signed off on Holder’s decision.) F.B.I. agents questioned Abdulmutallab for some fifty minutes, under what is known as the “public-safety exception” to the right to remain silent. He divulged time-sensitive intelligence: he had been trained in Yemen, by affiliates of Al Qaeda, and had obtained explosives from them. After he received medical treatment, a Justice Department source said, he started to “act like a jihadi and recite the Koran.” He stopped coöperating and demanded a lawyer, at which point authorities read him his rights. On “Inside Washington,” Charles Krauthammer declared that it was “almost criminal” that Holder had allowed Abdulmutallab access to an attorney. Rudy Giuliani, the former mayor of New York, appeared on ABC, saying, “Why in God’s name would you stop questioning a terrorist?”

Joseph Lieberman, the Independent senator from Connecticut, released a statement declaring that Abdulmutallab was “an enemy combatant and should be detained, interrogated, and ultimately charged as such.” Then, to the dismay of Justice Department officials, the Obama Administration’s top intelligence official, Dennis Blair, the director of National Intelligence, appeared at a Senate hearing and, under harsh questioning from Republicans, second-guessed Holder’s decision to turn Abdulmutallab over to the F.B.I. (Blair later said that his remarks had been “misconstrued.”) Soon, even Democrats were attacking Holder’s decisions. In a letter to Obama, Dianne Feinstein, the chair of the Senate Intelligence Committee, suggested that holding a trial in New York was dangerous. “New York City has been a high-priority target since at least the first World Trade Center bombing,” she wrote. “The trial of the most significant terrorist in custody would add to the threat.”

The death blow was struck by New York’s mayor, Michael Bloomberg, who had previously pledged his support to Holder. On January 27th, Bloomberg distanced himself from the Justice Department, saying that a trial in New York would be too expensive. For months, companies with downtown real-estate interests had been lobbying to stop the trial. Raymond Kelly, the commissioner of the New York Police Department, had fortified their arguments by providing upwardly spiralling estimates of the costs, which the federal government had promised to cover. In a matter of weeks, in what an Obama Administration official called a “classic City Hall jam job,” the police department’s projection of the trial costs went from a few hundred million dollars to a billion dollars.

Senator Charles Schumer, of New York, quickly released a statement echoing Bloomberg; the wisdom of moving the trial away from lower Manhattan, he said, was “obvious.” Then, on February 1st, Schumer told the Daily News that he opposed the idea of a 9/11 trial taking place anywhere in New York State. Officials in Pennsylvania and Virginia—the two other states where the 9/11 attacks occurred—began declaring their opposition to hosting the trials, too.

Bill Martel, an international-security expert at the Fletcher School, at Tufts University, told me that Holder, having been impervious to the shifting public mood, had been sucked into “a political riptide.” The Christmas Day bombing attempt, he noted, had come only a month after Nidal Malik Hasan, an Army psychiatrist who had exchanged e-mails with radical Islamists, massacred thirteen people at Fort Hood, Texas. Both incidents had revived public concern about America’s vulnerability to terrorism. Holder’s decisions, Martel warned, had “the makings of a sustained and self-inflicted political hemorrhage.” He added, “I think they’re going to have to give up on civilian trials. And Eric Holder is in for some pretty brutal days.” Indeed, on January 31st, Senator Lamar Alexander, of Tennessee, declared on Fox News that Holder should “step down,” for his inability to make “a distinction” between “terrorists who are flying into Detroit, blowing up planes, and American citizens who are committing a crime.”

On January 11th, a few weeks before his plans for a trial at Foley Square fell apart, Holder flew to Boston, to preside over the installation of a new U.S. Attorney. That evening, he returned to Washington in the Justice Department’s Gulfstream jet. Holder, who had jokingly lamented that such perks wouldn’t last forever—“I’m missing it already!”—sat down, put on headphones, and blasted one of his favorite songs, Jimi Hendrix’s “Purple Haze.” Holder, who is fifty-nine, seemed determined not to let the tensions of Washington politics poison his mood. He was equally determined not to capitulate on the idea of holding a 9/11 trial. “I don’t apologize for what I’ve done,” he told me at one point. “History will show that the decisions we’ve made are the right ones.” Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as “the defining event of my time as Attorney General.” But, he added, “between now and then I suspect we’re in for some interesting times.”

Holder, despite the controversy he has inspired, has not actually pushed for radical change. Indeed, critics in left-leaning legal circles have complained that he has kept too many of George W. Bush’s counterterrorism policies in place. For example, Holder’s Justice Department has continued blocking lawsuits by people who were subjected to extraordinary rendition—the practice of sending suspected terrorists captured abroad to countries known for administering torture—on the ground that such litigation would expose state secrets. Even some former members of the Bush Administration see more continuity than change. Bradford Berenson, who served as a White House lawyer when the Bush Administration was forging its controversial legal approach to terrorism, told me that “from the perspective of a hawkish Bush national-security person the glass is eighty-five per cent full in terms of continuity.”

Holder told me that he was frustrated by much of the criticism over the handling of Abdulmutallab. “What we did is totally consistent with what has happened in every similar case” since 9/11, he said. “There’s a desire to ignore the facts to try to score political points. It’s a little shocking.” Without exception, he noted, every previous terrorist suspect apprehended inside the country had been handled as a civilian criminal. Even so, critics such as Krauthammer were denouncing Holder for failing to send Abdulmutallab directly to Guantánamo. As a senior national-security official in the White House put it, “It’s a fantasy! Under what alternative legal system can Special Operations Forces fly into Detroit, and take someone away without court oversight?”

According to Kate Martin, the director of the Center for National Security Studies, in Washington, the military can’t simply grab suspects inside the U.S. and hold them without charge or a hearing. “It violates the Constitution, which extends to everyone inside the U.S.,” she said. “You can’t be seized without probable cause. You have the right to due process, and to a trial by a jury of your peers—which a military commission is not.” Confusion on this point may derive from the Bush Administration’s controversial handling of two suspected terrorists, José Padilla and Ali Saleh Kahlah al-Marri. Both men were arrested in the U.S. by law-enforcement officials, and indicted on criminal charges. But Bush declared Padilla and Marri to be “enemy combatants,” which, he argued, meant that they could be transferred to military custody, for interrogation and detention without trial. (Neither suspect provided useful intelligence.) The cases provoked legal challenges, and in both instances appeals courts ruled that Bush had overstepped his power. The Administration, not willing to risk a Supreme Court defeat, returned the suspects to the civilian system.

For all the tough rhetoric of the Bush Administration, it prosecuted many more terror suspects as criminals than as enemy combatants. According to statistics compiled by New York University’s Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges. Only three detainees—all of whom were apprehended abroad—were convicted in military commissions at Guantánamo. The makeshift military-commission system set up by Bush to handle terrorism cases has never tried a murder case, let alone one as complex, or notorious, as that of Khalid Sheikh Mohammed, who will face the death penalty for the murder of nearly three thousand people.