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Opposition to U.S. trial likely to keep mastermind of 9/11 attacks in detention

This March 1, 2003 file picture shows Khalid Sheik Mohammed, shortly after his capture during a raid in Pakistan.
This March 1, 2003 file picture shows Khalid Sheik Mohammed, shortly after his capture during a raid in Pakistan. (AP)

Some administration officials want to proceed with a number of military commission cases at Guantanamo Bay, including the prosecution of Abd al-Rahim al-Nashiri, the alleged planner of the 2000 attack on the USS Cole in Yemen. The administration has also considered trying a low-profile Guantanamo detainee in federal court to begin building up public confidence in such prosecutions.

But key administration officials fear that no federal case could proceed, given stiff congressional opposition. It is expected to grow more intense when the new Republican majority assumes power in the House of Representatives.

For now, administration officials are closely watching the outcome of the trial of Ahmed Ghailani, the only Guantanamo Bay detainee transferred to the United States for prosecution under Obama. A New York jury has been deliberating for two days in the case against Ghailani, accused of being a key operative in the 1998 East Africa embassy bombings.

Some administration officials think that a guilty verdict in the case might allow them to bring another Guantanamo case into the federal system. "A clean case against an unknown," another senior official said.

But if the jury comes back with a not-guilty verdict, officials said, it would be the death knell for any further federal prosecutions of Guantanamo detainees.

The debate over a trial for Mohammed has, in the view of many senior administration officials, unfairly become the symbol of Obama's national security policy.

"We have said he should be brought to justice, and brought to justice swiftly," one of the senior officials said. "The problem is these legacy cases have been very heavily bogged down in very strong feelings and very heavy politics, and therefore it has become very difficult to work this through to a successful conclusion."

Officials said Mohammed's uncertain future should not obscure what they see as significant and aggressive changes in national security policy, including banning interrogation methods that the administration deemed torture, establishing interrogation units, using unmanned drones to kill hundreds of enemy fighters in Pakistan, and articulating a legal basis for using those drones.

The Mohammed case is "a case that has to be addressed, and clearly it's complicated in ways that weren't originally foreseen, but as a symbol in some way of a thwarted policy, it is wholly misleading," the senior official said.

Administration officials also think that they will probably not secure the funding and legal authority from Congress to close the prison at Guantanamo Bay and transfer any remaining detainees to the United States. There are 174 detainees at Guantanamo Bay, down from 241 when Obama took office. Diplomatic efforts continue to reduce that number through the resettlement or repatriation of detainees cleared for transfer by an interagency task force.

But, one official said, "Gitmo is going to remain open for the foreseeable future."

Staff researcher Julie Tate contributed to this report.

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