President Barack Obama and Attorney General Eric Holder are struggling with where to try Khalid Sheikh Mohammed, whose anticipated prosecution has already drawn threats from Osama bin Laden. | Composite image by POLITICO No good KSM trial options for Obama

Now that the yearlong battle over health care is finally behind it, the Obama administration has a messy terrorism and national security problem to tackle — and unlike with health care, there doesn’t seem to be even the dim possibility of a political upside for the White House.

The immediate decision President Barack Obama must make is where and how to try Khalid Sheikh Mohammed and four other men accused of plotting the Sept. 11, 2001, attacks, but the larger issue is whether the president has the political will to implement the change in approach to combating terrorism that he promised in his campaign.


After Attorney General Eric Holder’s attempt to try KSM in federal court in New York foundered, Obama was under heavy pressure to reverse course and try him instead in a military commission. Sources say most of Obama’s top advisers have endorsed that approach.

If it happens, it would be a humiliating reversal for Holder, who once said that he regarded trying Khalid Sheikh Mohammed in a courtroom as “the defining event of my time as attorney general,” and would open the president to claims that he’s forsaking his principles for the sake of political convenience.

But if Obama defies expectations and presses forward with a civilian trial, he is certain to provoke a partisan battle over terrorism policy that is just what the GOP wants — with midterm elections a little more than seven months away.

“The longer it goes, the more difficult it becomes,” said Thomas Kean, a co-chairman of the 9/11 Commission and a former Republican governor of New Jersey. “It’s an absolute conundrum. It’s very, very difficult for the president at this point.”

As with another difficult issue, the war in Afghanistan, the Obama administration’s internal struggle to develop a coherent approach to terrorism has revealed ideological fault lines within the administration and presented tough political choices that go to the core of Obama’s presidency. Already, one high-ranking official, White House counsel Greg Craig, has resigned after disagreements over the issue, and there is speculation that Holder at some point could follow him.

Wary of the political consequences for Obama, especially after the controversy sparked by his handling of the so-called Christmas bomber, top White House advisers, led by chief of staff Rahm Emanuel, have entered negotiations with Sen. Lindsey Graham (R-S.C) over what would amount to a grand bargain:

In return for military trials for the alleged Sept. 11 plotters, Graham would support congressional funding to establish a detention facility in Illinois for some current Guantanamo prisoners, reform of laws about who constitutes an enemy combatant and a preventive detention statute to allow the imprisonment of allegedly dangerous individuals whom the government can’t or won’t charge with a crime.

“It would be the biggest mistake we could possibly make, in my view, since 9/11,” Graham has said about a civilian trial. “We would be giving constitutional rights to the mastermind of 9/11, as if he were any average, everyday criminal American citizen. We would be basically saying to the mastermind of 9/11, and to the world at large, that 9/11 was a criminal act, not an act of war.”

For proponents of civilian trials, agreeing to Graham’s proposal would mean Obama had betrayed one of the fundamental liberal critiques of the Bush administration — that it unnecessarily abandoned the country’s traditional system of justice in its approach to fighting terrorism

“What’s at stake is the whole national security narrative — who was right and who was wrong about the best way to fight terrorism over the last eight years,” said Tom Malinowski of Human Rights Watch, a proponent of using the regular justice system.

“If they compromise on this one, the Republican response will be to continue to go after every Democratic member of Congress and senator up for reelection in November and say they’re a member of a party that had the crazy idea of wanting to hold terrorism trials in civilian courts. And they’ll be able to add the kicker that President Obama admitted that he was wrong.”

Already unhappy with what they see as Obama’s failure to reject other Bush policies, liberal critics seem to be hoping that Holder makes any reversal of his decision on KSM a point of principle.

“If that’s the way it unfolds, it seems to me Attorney General Holder has to address the question of resignation,” said Eugene Fidell, a Yale Law School lecturer and expert on the military justice system. “The question is, How much of this medicine can you stand?”

The Senate Judiciary Committee postponed a hearing last week at which Holder was expected to be closely questioned about the plans for KSM. But at a House hearing earlier this month, Holder seemed to acknowledge a trial in New York City was a lost cause.

“You might be right that ... the train has left the station,” Holder told Rep. Jose Serrano (D-N.Y.), the lone member of the city’s congressional delegation who still favors a trial there. Local opposition “is certainly a factor that we are working with as we try to determine ... where this trial should occur,” Holder added.

Holder has said he expects a decision within weeks, after consultations with the White House, and it seems clear it will not be his to make. White House spokesman Robert Gibbs has said Obama will be “more involved” this time around and will have “strong equities” in the decision.

Lawyers say the only places with clear legal authority to host a civilian trial are those directly involved in the Sept. 11 attack: the Southern District of New York, which covers Manhattan; the Eastern District of Virginia, which includes the Pentagon; and the Western District of Pennsylvania, which includes the field in Shanksville where one of the hijacked aircraft crashed.

After the idea of a Manhattan trial fizzled, Holder asked his aides to re-examine those options and all others. “He said to be creative,” one Justice Department official said, a suggestion aides took to mean considering military bases, prison complexes and other sites where a civilian court could be convened.

Each potential venue that’s been publicly discussed presents difficulties both practical and political. Sites considered in New York include Governors Island in New York City and an Air National Guard base in Newburgh. However, picking one of those locations would mean taking on New York Democratic Sens. Chuck Schumer and Kirsten Gillibrand, who oppose those options.

“The other locations each have unique challenges that would preclude them from holding the trial, in the senator’s view,” Gillibrand spokesman Matt Canter said.

Bringing the trial to Virginia would present similar political problems. Courthouses in Alexandria and Newport News were mentioned as potential sites, but Democratic Sen. Jim Webb opposes any type of civilian trial and GOP Gov. Bob McDonnell opposes bringing any Guantanamo inmates to the state.

Still, Virginia attorney Ed MacMahon, who worked on the Zacarias Moussaoui defense, insists the obstacles aren’t insurmountable. “They could have this trial anywhere they want to have it. It’s a matter of political will,” the lawyer said.

Western Pennsylvania courthouses potentially usable for a trial include Pittsburgh, Johnstown and Erie, but locals say none of those places have the experience of handling a trial approaching this magnitude. And, again, the political pain for Obama would be intense. Quickly coming out against a Keystone State option were Gov. Ed Rendell and Sens. Bob Casey and Arlen Specter, all Democrats.

Kean calls it a classic "not in my backyard" problem and notes that any switch now would trigger questions to Holder about why he rejected the alternate sites in the first place. “The people in New York have said we don’t want it here, so everybody else says, ‘Why should we do it?’” the former governor noted. “Because they didn’t do the proper consulting in the beginning, now the options are few.”

In November, Graham got a Senate vote on his amendment to bar Sept. 11 trials in civilian courts. He won the backing of every Republican, as well as Sen. Joe Lieberman (I-Conn.) and four Democrats: Sens. Jim Webb, Maria Cantwell, Blanche Lincoln and Mark Pryor. But the White House persuaded 54 Democrats to reject the measure.

Advocates and some congressional aides say the White House has become convinced that if Graham’s amendment were brought to a vote again, as he is vowing to do, it would pass. Officials have pointed to increased public concern about terrorism in the wake of the attempted airline bombing on Christmas Day and to reports that opposition to civilian trials for terrorists played a role in the unexpected victory of Sen. Scott Brown (R-Mass.) in January.

Some backers of civilian trials say a flip-flop by the White House will only make matters worse.

“All those who went out on a limb at the administration’s request don’t want that limb sawed off behind them in a way, going forward, that makes them look like they’re to the left of the president,” said Chris Anders, senior legislative counsel for the American Civil Liberties Union. “If the president switches sides now, how can they take seriously anything the White House says on such a difficult vote?”

Whether Democratic senators would seriously begrudge a reversal by the administration is unclear. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) and Specter have openly urged Obama to keep the case in the civilian system. And Anders says the ACLU has spoken with every opponent of Graham’s measure and found no groundswell of support for it.

Despite the White House’s ongoing discussions with Graham, it’s unclear who would sign on to such a broad-ranging deal. Even a reversal on a civilian Sept. 11 trial would be more acceptable to many liberals than a deal that would include a preventive detention statute.

With or without such a law, the White House has claimed the right to hold Al Qaeda and Taliban operatives indefinitely — regardless of whether they are convicted of crimes. Critics of the administration’s stance from both the left and the right say that means the new prison the administration wants to set up in Illinois would simply become Gitmo North and that trials could be irrelevant.

Meanwhile, centrist Democrats and most Republicans would very likely support a preventive detention statute but stridently oppose bringing Guantanamo prisoners to U.S. soil.

There are also signs of a split between Graham and some of those who backed his proposed ban on civilian trials for Sept. 11 suspects. Lieberman and Sen. John McCain (R-Ariz.) now oppose all civilian trials for enemy fighters, while Graham wouldn’t go that far.

And even if there were agreement over trying KSM in a military commission, there is no consensus on where the trial should be held. Many Republicans favor holding it at Guantanamo, but doing so would effectively nullify Obama’s prediction that the prison would close by the end of this year — a goal that’s already a year behind his initial promise.

“Obviously, Guantanamo would have to be kept open well beyond President Obama’s first term if he were to decide to launch the Sept. 11 trials there,” said Ramzi Kassem, a lawyer representing Guantanamo detainees.

The options facing Obama are so grim that two prominent voices in the counterterrorism debate, the Brookings Institution’s Ben Wittes and former Bush Justice Department official Jack Goldsmith, have proposed that the president simply do nothing — scuttle all plans for trials and hold the suspects indefinitely.

That move to prolong the status quo has some attractiveness but would undercut Obama’s promise of “swift justice” for victims’ families, would eliminate any chance for the death penalty and could feed perceptions abroad that the U.S. is too scared to try its enemies.

“Closing Guantanamo while giving up on all the substantive issues that it symbolizes really risks dissipating the goodwill,” Malinowski said. “You don’t want a sense to set in around the world that Gitmo simply moved from one location to another without a fundamental change in what it symbolizes.”