WASHINGTON -- White House aides are increasingly convinced that the professed mastermind of the Sept. 11, 2001, attacks, Khalid Sheikh Mohammed, will not face trial in a civilian court and are trying to cut a deal that would still transfer Guantanamo Bay terror suspects to the United States, where many would face criminal charges, a senior administration official said Monday.
President Barack Obama is trying to keep a campaign pledge to close the island military prison, which has attracted criticism from Republicans who say it would jeopardize national security. He also has been under fire lately from people within his Democratic Party who say Obama should not accept any deal that would prosecute Mohammed outside the normal judicial system.
A senior official, speaking on condition of anonymity to discuss the sensitive negotiations, said the most important goals are closing Guantanamo Bay and ensuring that the government can prosecute some detainees in U.S. courts. To do so, the only option may be to abandon the administration's original plan to prosecute the alleged 9/11 conspirators in civilian courts and instead send them before military tribunals.
Republican Sen. Lindsey Graham is seen as key to the deal. During the weekend, the moderate Republican expressed willingness to cut a deal that leads to closing Guantanamo Bay.
"If we could get Khalid Sheik Mohammed and the co-conspirators of 9/11 back in the military commission, it'd go down well with the public," Graham said on CBS's Face the Nation.
The deal is far from done. The White House does not want to hold military commissions at Guantanamo Bay, a U.S. naval base on the southeastern tip of Cuba. 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 have to be reached.
It is 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 terror, and many Democrats appear loathe to tackle the issue themselves, particularly when the administration appears conflicted and indecisive.
Ben Wittes, a senior fellow at the Brookings Institution think tank who recently rallied conservative lawyers to counter a new line of Republican attack directed at lawyers within the administration, said the political debate over terror is "so coarse and stupid" it ignores the complexities of the national security problem.
He said the administration has made the situation worse for itself by announcing plans, such as closing Guantanamo Bay or prosecuting Mohammed in New York, then letting opposition grow.
Underscoring what a political quagmire this has become, the American Civil Liberties Union ran a full-page advertisement in The New York Times on Sunday that criticized Obama for even considering military tribunals for Mohammed. The ad portrayed Obama morphing into President George W. Bush, reflecting a disappointment expressed by several supporters.
"The president must know, as a constitutional scholar, that he's making a horrible, horrible deal. I have no doubt about that," said David Nacham, a New York attorney who handles detainee cases and who supported and donated to Obama. "And I have no doubt that the people around him believe the deal is necessary to preserve other goals of the administration."
He said, however, that does not excuse a compromise he sees as unprincipled.
Retired Brig. Gen. James P. Cullen, who met with Obama when he announced in January 2009 that Guantanamo Bay would be closed, said Monday 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," Cullen said.
One clear sign that such a Sept. 11 criminal trial is unlikely: Justice Department experts on Guantanamo Bay, national security and international law are not participating in the negotiations over the fate of Mohammed and others, several U.S. officials said.
The Justice Department could legally prosecute Mohammed in New York, Virginia or Pennsylvania, states that were attacked on Sept. 11, 2001. But New York politicians already have eliminated their state as a possibility and the political sentiment does not appear any friendlier in Virginia or Pennsylvania.
That leaves Obama little or no ability to insist on a criminal case if he still wants to close Guantanamo Bay and keep criminal courts open for terror cases down the road, and those remain the top priorities.