Published June 01, 2009
GUANTANAMO BAY NAVAL BASE -- With Usama bin Laden and his top deputies in hiding, Khalid Sheikh Mohammed is the public face of the 9/11 conspiracy. But the U.S. government has no good options to try the confessed mastermind of the attacks that killed 3,000 people.
Defense experts say that bin Laden's former propaganda chief will use any public platform granted him during trial to attack the U.S. and inflame members of Al Qaeda.
"He has a massive ego and he will use any criminal trial or commissions or federal district court as a soapbox to spew his hatred of the U.S. and the West," said Cully Stimson, former senior Defense Department official for detainee affairs.
Nearly five months into the review of all Guantanamo detainees ordered by President Obama, Mohammed's case is still on hold. Sources familiar with the review tell FOX News that at least three options are under consideration.
The first option, according to some sources the most likely, appears to be one begun by the Bush administration -- one that was initially rejected by Obama on his first full day in office.
"I think the Obama administration, upon second thought, is looking at the military commissions as being a much more acceptable political solution to this problem than bringing these guys back to the United States," said Neil Livingstone, a terrorism and national security analyst.
But even if those commissions are revamped to grant more rights to detainees, as the Obama administration ordered last month, more than the legal process and the 9/11 crimes will be on trial.
"The whole care and treatment of the CIA is going to come up, and that is going to block them into a trial within a trial and it will be circus," said Stimson.
Sending the case to a federal court in the Southern District of New York is another option government prosecutors could use to keep the focus off of the so-called enhanced interrogation techniques used to pry information from high-level detainees and keep the focus on the alleged crimes committed by KSM.
There is an existing indictment covering Mohammed's alleged role in the Bojinka plot, which called for the hijacking and exploding of 12 jets over the Pacific in 1995 (bojinka is Serbian for loud bang or explosion). But experts say convicting KSM of these crimes is like getting Al Capone for tax evasion.
"That's the last resort," said Livingstone. "It's like getting him because he hasn't paid his parking tickets or something."
A lawyer for one of the 9/11 conspirators, who would not comment directly on Mohammed's prosecution, said there are serious drawbacks for the government if prosecutors seek the death penalty in federal court.
"If a juror decided that somebody had been tortured, and (believed) that was punishment enough . . . one juror is all you need" to ensure that the accused gets life in prison instead of the death penalty, said Edward MacMahon, a defense lawyer for Zacarias Moussaoui.
The pragmatic solution maybe a hybrid: push Khalid Sheikh Mohammed into federal court for pre-9/11 terrorist activity and if there's a conviction, bring in families of those killed on 9/11 for victim impact statements during sentencing.
Whether that would truly be justice for the architect of 9/11 is another question.