WASHINGTON — Looking to breathe life into President Barack Obama's stalled pledge to close the Guantanamo Bay prison, White House advisers are inching toward recommending military trials for alleged Sept. 11 mastermind Khalid Sheik Mohammed and four accused henchmen.
Attorney General Eric Holder's original plan to try them in a civilian court in New York City met with criticism so fierce that it threatened to derail Obama's promise to shut the U.S. military's Cuban prison.
As difficult as the politics are concerning how and where to try the most notorious terror suspect in U.S. custody, that's only one step toward the even more fraught and complicated goal of closing Guantanamo where Mohammed and nearly 200 other terror detainees remain.
Closing Guantanamo was a signature promise of Obama's presidency, and it is still unkept well past his original deadline of January. Failing to keep it would have huge implications for the president, both with his base of supporters in the Democratic Party and in his efforts to remake America's image around the globe.
Holder decided in November to transfer Mohammed and four other accused Sept. 11 terrorists from Guantanamo to New York City for civilian trials. City officials initially embraced the idea.
But they later reversed themselves, citing the enormous costs, security and logistics of hosting a 9/11 trial – making things awkward for the Obama administration. And then the attempted Christmas Day airline bombing altered the political dynamic further, as Republicans focused anew on Obama's terrorism policies in general, including the trials.
The drumbeat of policy criticism, combined with the increasingly loud outcry from New York, made it nearly impossible for the White House to hold on to Holder's decision without review. That review is not finished, so no new recommendation is yet before the president. A decision is not expected for weeks, said a senior administration official, speaking on condition of anonymity because he wasn't authorized to discuss private deliberations.
But the recommendation almost certainly will be for a switch to a military process for the five accused men, said administration officials.
The reason for the probable reversal is simple: The more the trial controversy spun out of control, the harder it was becoming to make progress on other, already difficult issues crucial to closing Guantanamo, such as securing funding from Congress for the closure, arranging a replacement facility in the United States and planning other trials.
White House officials now see the Mohammed trial decision as the key to unlocking those logjams.
Republicans in Congress, including Rep. Peter King, R-N.Y., and Sen. Lindsey Graham, R-S.C., have proposed a ban on trying terrorism defendants in any American community.
The administration believes a civilian trial is doable, even preferable, as a demonstration of U.S. commitment to rule of law. Officials have cited the numerous terrorism trials held previously in U.S. criminal courts. They also argue that decisions on how to prosecute defendants are not for lawmakers to make.
But the White House also wants to move on.
As the Obama administration has been forced to defend its terrorism policies, the White House has taken control of the decision-making process on major terror trials and in negotiations with key lawmakers, all with greatly reduced input from the Justice Department.
In political terms, that could suggest Obama and his top aides have lost confidence in Holder for not having generated enough political support with local officials before making his decision to try Mohammed in New York. But privately White House aides blame New York officials' reversal and the heightened security fears that followed the Christmas Day bombing attempt.
If Obama does settles on a military commission for Mohammed and the others, he will face criticism from liberal Democrats. This was evident Friday even based on the hint of such a decision.
"If this stunning reversal comes to pass, President Obama will deal a death blow to his own Justice Department, not to mention American values," said the executive director of the American Civil Liberties Union, Anthony D. Romero. "Even with recent improvements, the military commissions system is incapable of handling complicated terrorism cases and achieving reliable results. President Obama must not cave in to political pressure and fearmongering."
Donna O'Connor, a spokesperson for September 11th Families for Peaceful Tomorrows, a national organization of more than 200 relatives of victims of the 9/11 attacks, also bemoaned the potential choice. "Civilian trials in federal courts have resulted in hundreds of successful terrorism prosecutions whereas military commissions are an illegitimate system that undermine the rule of law," she said.
New Yorkers cheered, however.
"It makes absolutely no sense to hold a multiyear, almost billion-dollar trial in a community that had already grappled with Sept. 11 and is the financial capital of our country," said Julie Menin, who is chair of Community Board 1 in Lower Manhattan.
Regardless of reactions, the White House hopes the eventual decision will accomplish one important objective: moving beyond one controversy so Obama can tackle others.
Associated Press writers Verena Dobnik in New York and Devlin Barrett in Washington contributed to this story.