Sept. 11 terrorism trials still in search of a venue

By Jerry Markon
Washington Post Staff Writer
Sunday, July 4, 2010

In February, as the Justice Department's plan for civilian terrorism trials in Manhattan was collapsing, Obama administration officials said they would soon choose an alternative venue for the case that promised to secure justice for the Sept. 11, 2001, attacks.

In March, officials said that Khalid Sheik Mohammed, the self-proclaimed mastermind of the attacks, probably would be tried before a military tribunal and that a decision appeared to be imminent.

In April, Attorney General Eric H. Holder Jr. told Congress that the White House-led review of the case would be completed in "a number of weeks."

That was 11 weeks ago.

Now, the decision on where to hold the high-profile trials of Mohammed and four others accused of being Sept. 11 conspirators has been put on hold and probably will not be made until after November's midterm elections, according to law enforcement, administration and congressional sources. In an unusual twist, the matter has been taken out of the hands of the Justice Department officials who usually make prosecutorial decisions and rests entirely with the White House, the sources said.

"It's a White House call," said one law enforcement official, who spoke on condition of anonymity to discuss internal deliberations. "We're all in the dark."

The delays are tied to the administration's broader difficulties in closing the U.S. military prison at Guantanamo Bay, Cuba -- where Mohammed and the other detainees are held -- and are unlikely to affect the outcome of a trial that officials vow will be held at some point. But people on all sides of the debate over whether Mohammed should be tried in federal court or before a military commission expressed frustration that nearly nine years after Sept. 11, justice for the attacks seems so elusive.

"It's important that these trials actually take place, and soon," said Jameel Jaffer, director of the national security project at the American Civil Liberties Union, which has long pushed for the trials to be held in federal court. "It's not just that people held for long periods of time in government custody deserve to contest the evidence against them. It's also that these trials are important to the country."

The administration thought it had resolved the issue when Holder announced last fall that Mohammed and the four other al-Qaeda detainees would go on trial in Manhattan federal court. They were already charged in a military commission at Guantanamo, but Obama had vowed to close the facility and to bring a new approach to handling high-profile detainees.

New York officials and lawmakers soon objected, saying the trial would be too expensive and dangerous, and the White House took control amid the bipartisan political storm. Senior administration officials said New York was out and the military was again the likely venue.

The White House and Justice Department declined to comment publicly Friday, but officials attributed the delay in making a final decision to a lack of good options. Negotiations on closing Guantanamo are stalled, and the administration remains opposed to holding trials there, arguing that it is a symbol of George W. Bush-era detention policies. Federal court trials would arouse heated opposition from Republicans; proceedings at a military base would anger the political left.

And Congress has blocked funding for another possibility: moving detainees to a prison in Thomson, Ill. "It's hard to make decisions when you don't know what the available choices are, and until Congress steps up and pays to close Guantanamo, it is very difficult to take the next step," said one administration official, who spoke on condition of anonymity because no decision has been made.

Some Republicans and relatives of Sept. 11 victims see political motivations in the delay. "It will be a very unpopular decision, one way or another, and they don't want it to have any impact on the [midterm] congressional races," said Rep. Frank R. Wolf (R-Va.), a critic of the administration's national security policies.

D. Hamilton Peterson of Bethesda, whose father and stepmother were killed on the hijacked airplane that crashed in a Pennsylvania field Sept. 11, said he found it "frustrating that domestic politics are subordinating criminal national security prosecutions."

Holder, at a June 17 news conference, denied any political motive. "The conversations that we are having are ongoing," he said. "The political thing . . . the fact of the elections, is not a part of the conversations at all."

Staff writer Anne Kornblut contributed to this report.

© 2010 The Washington Post Company