“It’s as if the wind just dies away,” an administration official said.
Efforts to bring a 9/11 figure to trial
There were still glimmers of fight. When the ability to use federal courts to try Guantanamo detainees was threatened by Congress, the White House political machine kicked into gear.
In fall 2009, Sen. Lindsey O. Graham (R-S.C.) led an effort designed to bar the administration from putting Khalid Sheik Mohammed and four co-defendants on trial in federal court. With Holder on the brink of announcing just such a prosecution, the White House fought to kill the measure, and the Senate rejected it in a 55 to 45 vote.
“The administration engaged hard,” said Chris Anders, senior legislative counsel for the ACLU, which opposed the Graham measure.
A second crippling amendment, proposed by Sen. James M. Inhofe (R-Okla.), was also defeated. “We thought we were darn close to closing Guantanamo,” a senior administration official said.
On Nov. 13, Holder announced at the Justice Department that Mohammed and his co-conspirators would be tried in a Manhattan federal courthouse less than a mile from Ground Zero. It was the boldest act yet by the Obama administration. “Our nation has had no higher priority than bringing those who planned and plotted the attacks to justice,” the attorney general said.
In New York, the decision was initially welcomed by the city’s leadership. “It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered,” Mayor Michael R. Bloomberg said.
But within just two months, the prosecution collapsed. At the Justice Department, officials thought they had been sandbagged by inflated security estimates made by the New York Police Department, and exaggerated concerns about disruption to the life of the city. NYPD Commissioner Ray Kelly spoke about creating security rings around the courthouse at an annual cost of approximately $200 million.
In New York, there was anger that when Bloomberg was facing increased local opposition to the trial, the administration was silent and did nothing to help him, despite pleas from City Hall that someone in Washington should speak up to ameliorate public concerns.
By the end of January 2010, the sense of dismay inside the administration was profound.
Emanuel turned to Graham to help resurrect the Guantanamo policy. In exchange, the senator — who supported closing Guantanamo and had met with Obama about it even before the inauguration — insisted on legislation creating an overarching detention framework for future captures.
Bob Bauer, brought in to replace Craig as White House counsel, led the negotiations alongside Emanuel, conducting a series of meetings at the White House and on Capitol Hill through the first part of 2010. Both sides talked about a “grand bargain”— a comprehensive piece of legislation that would close Guantanamo, give new legislative backing to law-of-war detention, allow some federal trials of Guantanamo detainees but send the prosecution of Mohammed back to a military commission.
“We negotiated very strongly and heavily about the pathway forward,” said Graham, adding that he met with the president two or three times on the subject.
“I think what the president misunderstood is there was an anxiousness about these defendants in America,” Graham continued. “Polls would ask, ‘Should we close Guantanamo Bay?’ and [support] got up to 60 percent. But underneath that, people still wanted to be reassured they would be safe.”
The only way to fix that, Graham thought, was to create a framework in which terrorism suspects like Mohammed would be tried by military commissions, something the administration would not sanction.
From the administration’s perspective, negotiating with Graham was a long shot. Some Democrats were furious that the administration was now contemplating what they saw as an about-face.
And so, like so many previous efforts, the negotiations simply withered. By May, the discussions with Graham were over. “I was never told why,” Graham said. “I guess it got to be too hard a sell.”
Military commissions are revisited
In August 2010, the Defense Department began to advocate forcefully for a full resumption of military commissions. A handful of cases that had been charged and referred under the Bush administration had proceeded at Guantanamo, but Defense Secretary Robert M. Gates had put a hold on the swearing of new charges. Senior defense officials argued that unless commissions resumed, and quickly, the Pentagon would start to lose key military prosecutors who in some cases had devoted years to building cases that were now in limbo.
At an Aug. 10 meeting of the National Security Council, defense officials made their case. Secretary of State Hillary Rodham Clinton responded with what one official called a “fairly elaborate speech” arguing forcefully against any piecemeal return to military commissions. The Guantanamo policy, she said, needed a comprehensive approach that followed the road map set down by the president in the National Archives speech.
Any resumption of military commissions, she said, must be accompanied by federal trials. Otherwise, she said, it’s going to look like “we’re not closing Gitmo,” one participant said.
To the surprise of some in the Situation Room, Gates seemed to relent, saying that commissions and federal trials should operate in tandem, like “two wheels on a bicycle.”
But, Gates said, he wanted to be able to lift the hold on commissions in 90 days. What was needed, he said, was a plan.
Holder said he was working on a fresh one. The attorney general continued to study the possibility of bringing Mohammed to trial in the Southern District of New York, even if not in New York City. Surreptitiously, he sent his then chief of staff, Kevin Ohlson, to see if a federal prison in Otisville might work as a venue. Under the guise of a visit to his family in the area, Ohlson dropped by the prison as if it were a routine check on behalf of the Justice Department.
Ultimately, Holder and other Justice officials concluded that the politics of moving to Upstate New York would probably be no better than they were in Manhattan.
The administration began to consider what some called the “no name strategy.” A number of detainees, through their lawyers, had expressed an interest in reaching plea agreements with the government. Of the six cases prosecuted in military commissions at Guantanamo, four had ended in pleas with relatively mild sentences.
Some in the administration began to advocate doing a series of deals in federal court in which detainees would be brought into New York or Virginia with a plea agreement already in hand.
“The idea was you could do five or six successful Article III cases, and then go to KSM,” said an administration official, using the common abbreviation for Mohammed.
But the Justice Department was reluctant to start moving on other cases until the trial of the one Guantanamo Bay detainee who had already been brought into the United States was over.
Ahmed Ghailani, a former high-value detainee at Guantanamo Bay, was charged with multiple counts of murder and attempted murder for his alleged role in the 1998 bombings of U.S. embassies in East Africa. Ghailani was first moved to Manhattan in June 2009, and his trial began in October 2010.
“We were watching the trial like hawks,” the administration official said. Prosecutors assured nervous officials in the administration that despite some setbacks in rulings by the judge, they would secure a conviction.
On Nov. 17, a jury found Ghailani guilty of conspiracy to damage or destroy U.S. property, but acquitted him of 284 other counts, including all the murder charges. Although Ghailani ended up getting a life sentence in January, the optics for the administration were terrible. Critics seized on the number of acquittals and said an al-Qaeda terrorist almost got off.
The only plan that remained viable was doomed.
Avoiding a showdown with Congress
In December, in the provisions of a major defense bill, Congress imposed the tightest restrictions yet on the handling of Guantanamo detainees, barring the administration from bringing any into the United States even for prosecution.
To some in the administration, by attempting to dictate prosecution decisions, Congress had clearly stepped on an executive prerogative, and they wanted the president to declare the provision unconstitutional in a signing statement in which he would indicate that he was not bound by certain provisions.
Another lively internal administration debate arose about the degree to which the administration should challenge Congress. Some officials were skittish about employing a maneuver — the signing statement — that the president had criticized the Bush administration for using to disregard the parts of laws it didn’t like. Others argued that Congress’s action was so clearly unconstitutional it had to be challenged, according to administration officials.
In the end, Obama called the restrictions a “dangerous and unprecedented challenge” to the executive branch, but he stopped short of saying he could lawfully ignore them.
There would be no standoff with Congress.
In March, Obama signed an executive order creating review procedures for detainees whom it planned to hold indefinitely and without trial.
Administration officials insisted that the president was still committed to closing the detention center, although Obama made no mention of that goal in a short statement. But he did endorse federal trials. “I strongly believe that the American system of justice is a key part of our arsenal in the war against al-Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system — including Article III courts,” he said.
Inside the administration, there was much less confidence. Over several weeks in March, Holder informed Cabinet officials of his conclusion that congressional restrictions on bringing Guantanamo Bay detainees into the United States made a federal trial all but impossible for the 9/11 defendants. Holder decided that after years of delay, it would be politically untenable to wait any longer before bringing Mohammed to justice, especially with the 10th anniversary of the Sept. 11 attacks approaching.
Less than a month later, on the the day Obama announced that he would seek reelection, a clearly crestfallen Holder took to the lectern at the Justice Department to scuttle the federal prosecution of Mohammed, which he once expected would be the “defining event” of his time at the helm of the department.
Mohammed is to be tried at Guantanamo in a purpose-built courthouse, just a few miles from the camps that continue to hold 172 detainees.
Staff researcher Julie Tate contributed to this report.