By Jerry Markon
Washington Post Staff Writer
Sunday, December 12, 2010; 6:58 PM
The Senate is expected to consider a provision this week that would block the Obama administration from bringing Guantanamo Bay detainees to the United States for trial, including the self-proclaimed mastermind of the Sept. 11, 2001 attacks.
The House on Wednesday approved the nine-month ban on transfers of Guantanamo inmates, drawing fierce opposition from Attorney General Eric H. Holder Jr. The provision then went to the Senate as part of a broad spending bill that the chamber is likely to take up in some form this week.
Although it was unclear whether the Senate will go along, the legal fate of the accused planners of Sept. 11 remained more uncertain than ever nearly a decade after the attacks, according to administration and congressional officials.
Holder announced in the fall of 2009 that Khalid Sheik Mohammed, who has claimed responsibility for Sept. 11, and four other al-Qaeda detainees would go on trial in Manhattan federal court. But the plan soon ran into a bipartisan storm of opposition, which is 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.
New York officials and lawmakers objected to civilian trials, saying they would be too expensive and dangerous. Administration officials said in March that New York was out and that the detainees, who had already been charged in a military commission at Guantanamo, would likely face a military trial.
Ever since, the cases have languished, with no decision on the venue. And the political prospects for civilian trials grew even dimmer last month when Ahmed Ghailani, the first Guantanamo detainee brought to the United States for trial, was acquitted of 284 counts for his role in the 1998 U.S. embassy bombings in East Africa. Jurors convicted the 36-year-old Tanzanian on one count of conspiracy, and he could face life in prison.
But the lack of a clear and unequivocal victory left administration officials believing they have no choice but to hold detainees such as Mohammed indefinitely while proceeding with a select number of military commissions. Administration officials say federal court trials are highly unlikely for the foreseeable future.
In that political context, the House passed the provision that would prohibit the use of any funds to transfer Mohammed - who was specified by name - and other Guantanamo detainees to the United States for trial. The three-paragraph measure was tucked into a more than $1 trillion spending bill designed to fund the federal government through Sept. 30, 2011.
The bill passed by a vote of 212-206 on the strength of 212 Democratic votes. Republicans, many of whom have long opposed civilian trials for Guantanamo detainees, voted against it for other reasons, congressional aides said.
In response, Holder wrote to Senate leaders on Thursday urging them to reject the Guantanamo provision, calling it "an extreme and risky encroachment on the authority of the Executive branch to determine when and where to prosecute terrorist suspects.''
In a news conference the same day, the attorney general was even more blunt.
"I also want to emphasize in the strongest possible terms that on a very personal level and as the person who knows these cases better than anybody, anybody, that this legislation is unwise,'' he said. "It takes away from the Justice Department, from our investigative agencies; it takes away from the American people the ability to hold accountable people who have committed mass murder, people who intended to harm, kill American citizens.''
Senate leaders declined to comment on Holder's letter or on whether the Guantanamo provision will remain in the spending measure that the body is expected to take up this week. Congressional officials said a spending bill must pass both houses in some form by Saturday, when the current resolution funding the government runs out.
At least one Democrat who is influential on detainee issues, Sen. Patrick J. Leahy (D-Vt.), indicated that he wanted the Guantanamo measure stricken from the final legislation.
"Rather than addressing the real question of how to close the prison facility at Guantanamo Bay, Congress continues to try to tie the hands of law enforcement and other security agencies,'' said Leahy, the Judiciary Committee chairman. "In the end, the result is a failure to bring these criminals to justice. I hope the final version of important legislation to keep the government running will not include this unprecedented, damaging, and ill-considered provision."