Obama advisers set to recommend military tribunals for alleged 9/11 plotters

Starting over

Military lawyers said prosecutors cannot simply reconstitute the case the government dropped in January and will have to re-arraign Mohammed and the others. Facing trial with Mohammed are four other alleged key players in the Sept. 11 conspiracy: Ramzi Binalshibh, a Yemeni; Walid bin Attash, also a Yemeni; Ali Abd al-Aziz Ali, also known as Ammar al-Baluchi, a Pakistani who is Mohammed's nephew; and Mustafa Ahmed al-Hawsawi, a Saudi. The five defendants were first arraigned in June 2008.

"You start back at square one, but it wouldn't take long to catch up to where we were," said a military official who spoke on the condition of anonymity because the administration has made no formal announcement about the case.

It may be that some in the government want to start from scratch. Justice Department lawyers who were preparing for the civilian trial of Mohammed and his alleged co-conspirators planned to avoid using any evidence obtained through the coercive interrogation of the defendants while they were held in CIA secret prisons. Mohammed is one of three known detainees subjected to waterboarding while in CIA custody.

Nothing bars the government from using Justice Department lawyers to help try the case in a military commission.

Moving the Sept. 11 case back to military court could scuttle the administration's plans to bring other Guantanamo detainees to federal jurisdictions. Administration officials had said they planned to put about 35 Guantanamo detainees on trial, either in federal court or military commissions. While some of the other suspects are not as well known, it may be hard for the administration to argue that they can be tried in civilian court, having relented on Mohammed.

The case of Ahmed Khalfan Ghailani, a Tanzanian who was transferred to New York from Guantanamo in June to face trial on charges relating to the 1998 East Africa embassy bombings, will continue in federal court.

To close the detention center at Guantanamo, the administration needs funding to acquire and refurbish a prison in the United States, probably a state-owned maximum-security facility in Thomson, Ill. Because Congress has barred the transfer to the United States of all detainees except those destined for prosecution, the White House needs legal authority to move prisoners it plans to hold in some form of indefinite detention.

An interagency review of all cases at Guantanamo Bay concluded that about 50 prisoners will have to be held in some form of prolonged detention without trial, because the evidence against them was obtained through the use of harsh interrogation methods or because its revelation in court would compromise intelligence gathering. The government says the detainees are too dangerous to release.

Anger from the left

A decision to reverse course on Mohammed is likely to dismay civil liberties groups and human rights groups who loudly cheered Obama's election because they thought he would dismantle military tribunals developed during the Bush administration.

"If President Obama reverses Holder's decision to try the 9/11 defendants in criminal court and retreats to using the Bush military commissions, he deals a death blow to his own Justice Department, breaks a clear campaign promise to restore the rule of law and demonstrates that the promises to his constituents are all up for grabs," said Anthony Romero, executive director of the American Civil Liberties Union. "The military commissions have not worked, they are doomed to failure, and Obama will invariably find himself running for office again while not achieving justice for the 9/11 attacks."

Staff researcher Julie Tate contributed to this report.