The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantánamo Bay, Cuba. The latter option would alienate liberal supporters.
The administration asserts that it can hold Mohammed and other al-Qaida operatives under the laws of war, a principle that has been upheld by the courts when Guantánamo Bay detainees have challenged their detention.
The White House has made it clear that President Obama will ultimately make the decision, and a federal prosecution of Mohammed and four alleged co-conspirators has not been ruled out, senior officials said. Still, they acknowledge that a trial is unlikely before the next presidential election and, even then, would require a different political environment.
Attorney General Eric Holder said last week that a decision on a trial for Mohammed was close. Other administration officials said his remark was simply a stock response to a frequently asked question.
After Holder spoke, Democratic Sen. Charles Schumer and Republican Rep. Peter King, both of New York, reiterated their opposition to a Sept. 11-related trial anywhere in New York state, as did the state's governor-elect, Andrew Cuomo. Lawmakers and officials in the state have cited concerns about a trial's cost, as well as security issues.
Administration officials say opposition would be as entrenched in Virginia and Pennsylvania, the other viable federal districts for a trial, given that deaths on Sept. 11 occurred at the Pentagon and on United Flight 93.
Holder "says soon. Schumer says never. It's somewhere between the two," said a senior administration official who, like other officials, would discuss internal deliberations only on the condition of anonymity.
A Justice Department spokesman declined to comment.
Mohammed was captured in Pakistan in March 2003 and was held at secret CIA prisons overseas until he was transferred in 2006 to Guantánamo Bay. He is held there with a group of high-value detainees at a small, highly secure facility.
The Bush administration brought charges of capital murder and war crimes in February 2008 against the Pakistani national, who was raised in Kuwait. But the Obama administration suspended legal proceedings at Guantánamo Bay and in January 2010 withdrew military charges against Mohammed and four others in anticipation of a federal trial in Manhattan.
Obama came into office with a strong preference to prosecute Mohammed and other detainees in federal court as part of a larger plan to close the prison at Guantánamo Bay. Almost from the start, however, he ran into fierce political opposition.
Some administration officials want to proceed with a number of military-commission cases at Guantánamo Bay, including the prosecution of Abd al-Rahim al-Nashiri, the alleged planner of the 2000 attack on the USS Cole in Yemen.
The administration has also considered trying a low-profile Guantánamo detainee in federal court to begin building up public confidence in such prosecutions.
But key administration officials fear that no federal case could proceed, given stiff congressional opposition. It is expected to grow more intense when the new Republican majority assumes power in the House of Representatives.
For now, administration officials are closely watching the outcome of the trial of Ahmed Ghailani, the only Guantánamo Bay detainee transferred to the United States for prosecution under Obama. A New York jury began deliberating last week in the case against Ghailani, accused of being a key operative in the 1998 East Africa embassy bombings.
Some administration officials say a guilty verdict in the case might allow them to bring another Ghailani case into the federal system.
But if the jury comes back with a not-guilty verdict, officials said, it would be the death knell for any further federal prosecutions of Guantánamo detainees.
The debate over a trial for Mohammed has, in the view of many senior administration officials, unfairly become the symbol of Obama's national-security policy.
"We have said he should be brought to justice, and brought to justice swiftly," one of the senior officials said. "The problem is these legacy cases have been very heavily bogged down in very strong feelings and very heavy politics, and therefore it has become very difficult to work this through to a successful conclusion."
Officials said Mohammed's uncertain future should not obscure what they see as significant and aggressive changes in national-security policy, including banning interrogation methods that the administration deemed torture, establishing interrogation units, using unmanned drones to kill hundreds of enemy fighters in Pakistan, and articulating a legal basis for using those drones.
Administration officials also say they will probably not secure the funding and legal authority from Congress to close the prison at Guantánamo Bay and transfer any remaining detainees to the United States.
There are 174 detainees at Guantánamo Bay, down from 241 when Obama took office. Diplomatic efforts continue to reduce that number through the resettlement or repatriation of detainees cleared for transfer by an interagency task force.
But, one official said, "Gitmo is going to remain open for the foreseeable future."
Staff researcher Julie Tate contributed to this report.
Source: The Seattle Times
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