Military may get 9/11 suspects' trial

White House poised to challenge plan to try them in civilian New York court

March 05, 2010|By Anne E. Kornblut and Peter Finn | The Washington Post

WASHINGTON — — President Barack Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric Holder's plan to try him in civilian court in New York City.

The president's advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some alleged terrorists in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States. The administration has failed to meet a self-imposed one-year deadline to close Guantanamo.

The administration officials, who spoke on the condition of anonymity to discuss internal deliberations, said the president's legal advisers are finalizing their review of the cases of Mohammed and four alleged co-conspirators.

Privately, administration officials are bracing for the ire of disappointed liberals and even some government lawyers should the administration back away from promises to use civilian courts to adjudicate the cases of some of the 188 detainees who remain at Guantanamo.

Marine Col. Jeffrey Colwell, acting chief defense counsel at the Defense Department's Office of Military Commissions, said it would be a "sad day for the rule of law" if Obama decides not to proceed with a federal trial.

"I thought the decision where to put people on trial - whether federal court or military commissions - was based on what was right, not what is politically advantageous," Colwell said.

Administration officials said that an announcement could come soon and that they hoped to finalize their plans before Obama leaves for Indonesia on March 18.

Holder announced last November that Mohammed and his co-defendants would be tried in a federal court in Manhattan, hailing it as a "significant step forward in our efforts to close Guantanamo and to bring to justice those individuals who have conspired to attack our nation and our interests abroad."

New York Mayor Michael Bloomberg initially embraced the decision. But when a grass-roots opposition movement took off and cost estimates for security ballooned, Bloomberg and leading New York Democrats turned against the civilian trial. Others objected on national security grounds, arguing that a Manhattan trial could attract another attack.

Capital charges against Mohammed and his four co-defendants were withdrawn without prejudice and dismissed Jan. 21 in what military prosecutors thought was a prelude to a transfer to Manhattan. But by February, there was near-universal opposition among activists and lawmakers in both parties to trying the case in New York.

In an interview with The Washington Post on Feb. 11, Holder gave his first public signal that he was open to returning to the military commission system.

"At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it's done as transparently as possible and with adherence to all the rules," Holder said.

Top Obama advisers have been negotiating with Sen. Lindsey Graham, R-S.C., a vocal critic of trying the Sept. 11 plotters in civilian court, in pursuit of a deal that would secure his help in closing Guantanamo. Graham has sought the creation a legal framework that would spell out how the government would detain and try future captives, but an administration official warned that a "grand bargain" is not likely in the immediate future. The official, also speaking on the condition of anonymity, said the talks with Graham have been mostly about "limited issues" involving the Mohammed trial and the future of Guantanamo.

Military lawyers said prosecutors cannot simply reconstitute the case the government dropped in January and will have to rearraign Mohammed and the others. Facing trial with Mohammed are four other alleged key players in the Sept. 11 conspiracy: Ramzi Binalshibh, a Yemeni; Walid bin Attash, also a Yemeni; Ali Abd al-Aziz Ali, Mohammed's nephew and a Pakistani also known as Ammar al-Baluchi; and Mustafa Ahmed al-Hawsawi, a Saudi. The five defendants were first arraigned in June 2008.

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