By Anne E. Kornblut and Carrie Johnson
Washington Post Staff Writer
Friday, February 12, 2010; A01
President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001, attacks, three administration officials said Thursday, signaling a recognition that the administration had mishandled the process and triggered a political backlash.
Obama initially had asked Attorney General Eric H. Holder Jr. to choose the site of the trial in an effort to maintain an independent Justice Department. But the White House has been taken aback by the intense criticism from political opponents and local officials of Holder's decision to try Khalid Sheik Mohammed in a civilian courtroom in New York.
Administration officials acknowledge that Holder and Obama advisers were unable to build political support for the trial. And Holder, in an interview Thursday, left open the possibility that Mohammed's trial could be switched to a military commission, although he said that is not his personal and legal preference.
"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. "If we do that, I'm not sure the location or even the forum is as important as what the world sees in that proceeding."
Administration officials said the president's involvement has to do with securing congressional funding for the costly trial before bipartisan efforts to strip financing for the case against Mohammed and four alleged co-conspirators gain greater momentum. They said it was a matter of national security, not just politics.
Senior White House officials said that the decision to try Mohammed in New York was Holder's and that no single person in the administration was responsible for handling the politics of that choice. In an effort to avoid leaks, Holder kept the decision close in the days leading up to his Nov. 13 news conference, calling New York officeholders that day to inform them. Several New York officials said they have dealt exclusively with Holder, first during the rollout of the announcement and more recently as he struggles to find another venue.
Officials acknowledged that Holder does not deserve all the blame for the political problems. "Their building represents what they do -- justice. It's rightly not staffed with people who have to worry about congressional relations or federal funding," one White House official said.
At first blush, the choice of New York made sense to many lawyers inside and outside of the administration: Judges and prosecutors there have handled serious national security trials, the Manhattan courthouse and tunneled detention complex would not require any of the suspects to move aboveground, and security costs would be lower than building a new facility.
But several sources questioned why the administration -- especially one replete with political veterans -- has not done a better job of managing the complex politics of national security.
"How did this happen?" asked Rep. Peter T. King (R-N.Y.). "It was being blind to political realities, and I don't mean partisan politics. I mean the real, legitimate grass-roots feelings. They misread it."
Managing the politics of terrorism has not been assigned to one person at the White House. Many people are dealing with the issue of the trial, including Chief of Staff Rahm Emanuel, National Security Council Chief of Staff Denis McDonough, deputy national security adviser Thomas E. Donilon, senior adviser David Axelrod and White House press secretary Robert Gibbs. Increasingly, Phil Schiliro, the head of White House legislative affairs, has worked on building support in Congress. The new White House counsel, Bob Bauer, is also managing "a central piece of it," one senior White House adviser said.
Word of Obama's increased attention to one of the biggest national security issues he inherited comes as disagreement grows over the Justice Department's use of federal courts to try accused terrorists. George W. Bush's administration employed that strategy at least 100 times, but the public mood has shifted since the Mohammed trial announcement and a thwarted Christmas Day airline bombing plot.
According to the latest Washington Post-ABC News poll, 55 percent of voters say military tribunals should be used to try suspected terrorists, compared with 39 percent who say the civilian court system should be used. In November, there was an even split on this question. Still, Obama has an advantage on national security, with a majority of Americans continuing to approve of the way he is handling the threat of terrorism -- his highest-rated issue -- and 47 percent saying they mainly trust Obama on the issue compared with 42 percent who trust the GOP.
Officials across the administration recognize that they have been slow to respond, defend and communicate their position, prompting a flurry of forceful comments over the past week.
Democrats, to help the administration push back on Republican attacks, sent Obama a letter Thursday afternoon that endorsed the use of federal criminal courts. "Our system of justice is strong enough to prosecute the people who have attacked us," wrote Senate Judiciary Chairman Patrick J. Leahy (Vt.) and Senate Intelligence Chairman Dianne Feinstein (Calif.).
In his interview, Holder reiterated his belief that a civilian trial would be the best legal option for Mohammed. "Trying the case in an article III court is best for the case and best for our overall fight against al-Qaeda," he said. "The decision ultimately will be driven by: How can we maximize our chances for success and bring justice to the people responsible for 9/11, and also to survivors?"
Holder reflected on his first year as the nation's top law enforcement official and the nature of his interaction with the White House on counterterrorism, his top priority.
"What I've tried to do is re
establish the department in the way that it has always been seen at its best, as an agency that is independent, given the unique responsibilities that it has," he said. "But to be truly effective in the national security sphere, you've got to involve partners outside this building. To make decisions the AG has to make, you have to involve the commander in chief and these other people. I'm part of the national security team in a way that I'm not involved in the environmental resources team, the civil rights team."
Support from allies on Capitol Hill may not translate into a venue that would welcome a trial of Mohammed and four other defendants, especially after New York's mayor, police commissioner and senior U.S. senator all but ruled out Holder's first choice: the courthouse in Manhattan.
White House officials said that negotiations with Congress are underway -- even suggesting that some sort of deal may be in the works, with the White House using the Mohammed trial as an opening to prod Congress to act on a range of detainee-related issues. "Our hope would be that we could use the increased attention to the issue on Capitol Hill to come up with a solution to this piece of a much bigger puzzle," one senior adviser said.
Administration officials said the decision will be made soon.
Obama gave little clue about how the administration will proceed when he was asked Sunday about the trial. But he made clear that, in a shift from last year, he is now part of the decision-making process, saying in a CBS interview that Manhattan was still an option. "I have not ruled it out," Obama said.
If the White House is unable to find a civilian court where the Mohammed trial can be held, and if the political pressure continues, the administration may be forced to shift to a military commission.
Officials in the states where a civilian trial could be held have voiced clear opposition to hosting one. Two of the likeliest states with ties to the terrorist attacks -- New Jersey and Virginia -- recently elected Republican governors. Two other potential states -- New York and Pennsylvania -- have key 2010 elections. One possible site is the town of Newburgh, N.Y. State officials have said they would fight that move.