WASHINGTON — White House aides are increasingly convinced that accused 9/11 mastermind Khalid Sheikh Mohammed will never face trial in a civilian court and are trying to cut a deal that would still transfer Guantanamo Bay terrorism suspects to the United States, where many would face criminal charges.
President Barack Obama is trying to keep a campaign pledge to close the U.S. military prison in Cuba, a promise that has attracted criticism from Republicans who say it would jeopardize national security. He has also lately been under fire from people within his party who say Obama should not accept any deal that would prosecute Mohammed outside the normal judicial system.
Sen. Lindsey Graham is seen as key to the deal. Over the weekend, the South Carolina Republican expressed willingness to cut a deal that leads to closing Guantanamo Bay.
But the deal is far from done. The White House does not want to hold military commissions at Guantanamo Bay. That means the administration would need to reach a deal to close the prison and hold military commissions within the United States.
Graham also wants to set up a new court system to handle detainees who are too dangerous to be released but who, because of evidence problems or other reasons, cannot be successfully prosecuted in either tribunals or civilian courts. The White House does not favor such a plan, so a compromise would need to be reached.
It's not at all clear the administration can muster the votes to pull together that compromise. Normally, the executive branch has broad discretion on how to wage war and prosecute criminals, but Congress has threatened not to pay for any trials inside the United States. That has forced the White House into a difficult bargaining position.
In an election year, every day that passes makes it more difficult to reach an accord. Republicans have seized several opportunities to criticize the administration as soft on terrorism, and many Democrats appear loathe to tackle the issue, particularly when the administration appears conflicted and indecisive.
Ben Wittes, senior fellow at the Brookings Institution think tank who recently rallied conservative lawyers to counter a new line of GOP attack directed at lawyers within the administration, said the political debate over terrorism is "so coarse and stupid" it ignores the complexities of the national security problem.
Retired Brig. Gen. James P. Cullen, who met with Obama when he announced in January 2009 that Guantanamo Bay would be closed, said Monday that the White House should not give up on Attorney General Eric Holder's plan to prosecute Mohammed in New York. "Go back. Do the political groundwork that should have been done originally," he said.