TRIPOLI, Libya — The Obama administration is confronting a legal and policy dilemma that could reshape how it pursues terrorism suspects around the world as investigators try to determine who was responsible for the Sept. 11 attack on the U.S. mission in Benghazi.
Should it rely on the FBI, treating the assaults on the two U.S. compounds like a regular crime for prosecution in U.S. courts? Can it depend on the dysfunctional Libyan government to take action? Or should it embrace a military option by ordering a drone strike — or send more prisoners to Guantanamo Bay?
President Barack Obama has vowed to "bring to justice" the killers of Ambassador Christopher Stevens and three other Americans. But nearly one month later, the White House has not spelled out how it plans to do so, even if it is able to identify and capture any suspects.
A slow-moving investigation is complicating matters, with the FBI taking three weeks to reach the unsecured crime scene. Meanwhile, the administration has given contradictory assessments, initially suggesting the attack was committed in the heat of the moment by a mob and more recently saying it was planned by terrorists affiliated with al-Qaida.
Today, Obama's chief counterterrorism adviser, John Brennan, is scheduled to visit Tripoli to meet with senior Libyan officials and give a high-level kick to the investigation.
The administration is not ruling out any option, an administration official told the Washington Post. The official, who spoke on the condition of anonymity to describe the evolving policy, said the involvement of the FBI at this stage should not be taken as evidence that the administration plans to prosecute any suspects in U.S. courts.
More broadly, it remains uncertain whether the White House will respond to the assault as a criminal act or an act of war, a legal distinction that has gone unresolved in Washington since the terror attacks on Sept. 11, 2001.
"It brings into sharp focus a number of issues that the government has been dealing with since the beginning of the so-called war on terror," said Karen Greenberg, director of the Center on National Security at the Fordham University School of Law. "It clarifies so beautifully all of the hard issues we've had to confront over the last 11 years."
All of the options available to the Americans could have lasting consequences in Libya, where a transitional government is plagued by infighting and elected leaders have been unable to assume the full reins of power.
Even the basic issue of allowing the FBI to access the crime scene at the U.S. diplomatic post in Benghazi for less than a day on Thursday has been politically sensitive for Libyans, a Foreign Ministry official said.
"There is very strong public opinion about the Americans coming here and running the investigation," said Saad el-Shlmani, a Foreign Ministry spokesman. Some top officials, he added, see the country's sovereignty at stake.
But deferring to Libya's fragile justice system — still warped after 42 years of undemocratic rule by Moammar Gadhafi —hardly presents an attractive choice for the administration.
As of last weekend, the Libyan government still had not secured the remains of the primary U.S. compound in Benghazi, let alone interviewed many witnesses. Many Libyan courts are chaotic places, especially in Benghazi. Lawyers say security concerns can paralyze the system, which is only slowly beginning to assume the trappings of ordinary procedure in a country that does not yet have a constitution.
Courts are "functioning in Benghazi, but they're partially functioning," said Col. Mohammed Gweider, the head of the special courts and prison in Tripoli that handle high-level cases. "It's the government weakness that's being reflected in the court system."