WASHINGTON – The Obama administration has given up its bid to try professed 9/11 mastermind Khalid Sheikh Mohammed in civilian court, a bow to political reality that leaves the administration's plan to close Guantanamo Bay hanging by a thread.
Like a low-grade fever that's hard to get rid of, the Gitmo problem is back at the White House, early enough in the president's re-election campaign to be treated successfully but still troublesome because it could make many return appearances between now and election day 2012.
Proof, as if any were needed, that campaign promises can be dangerous to those who make them.
Military commissions fit into the Guantanamo Bay picture frame because that's where Mohammed and other detainees are being held now, and where a military commission trial or trials for Mohammed and his four alleged coconspirators would probably be conducted.
The chief prosecutor in the office of military commissions, Capt. John Murphy, said he would recommend a joint trial for the five men.
The administration of George W. Bush opened Guantanamo Bay as a prison for terrorist suspects. President Barack Obama, amid a clamor here and abroad to close the place, vowed to do just that and move the detainees.
But that was then and this is now, and the picture has changed because of one simple question: Move them where?
"Congress is not behind closing Guantanamo ... because the American people aren't behind it," said Vijay Padmanabhan, a former attorney-adviser in the State Department's Office of the Legal Adviser from 2003-08 who was involved in litigation and repatriation of Guantanamo Bay detainees.
"The president has not clearly communicated why it's important to take the final step and close the facility, and unless and until he does, he's not going to be able to," said Padmanabhan, now a visiting assistant professor at the Benjamin N. Cardozo School of Law in New York City.
The former State Department lawyer said it's fair to conclude that Guantanamo Bay will remain open into the immediate future, "if not the remainder of the president's time in office."
Monday played out as a sort-of warmup for the presidential campaign. The White House had little to say. Republicans had a lot to say. And Attorney General Eric Holder, caught in the middle, refused to be pushed around.
"Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments," the attorney general told a news conference.
Republicans went on the attack when Holder announced that his plan for a civilian court trial in New York of Mohammed and his four alleged coconspirators was out and that military commissions were in.
"An inexperienced and naïve president has finally reversed himself on Guantanamo and terrorist trials; let's hope he sees the light on his other flawed policies," said former Massachusetts Gov. Mitt Romney, who is expected in the coming weeks to enter the GOP race to challenge Obama in 2012.
In December, congressional conservatives spearheaded legislation that barred the transfer of Guantanamo Bay detainees to the United States. In several other congressional votes last year, many Democrats joined Republicans in opposing bringing Gitmo prisoners to the U.S. for trial or detention.
The November 2009 decision for a "KSM" trial near Ground Zero seemed to roll over on the Obama administration quickly.
With New York City still trying to recover from the hit it took in 2008 when the economy collapsed, fears that a major trial would harm real estate values on choice land in lower Manhattan and create high expenses for the city's police department seemed to be deciding factors. Mayor Michael Bloomberg and initial supporters of the idea changed their minds.
Which all led inevitably to Monday's pullback and a flood of responses.
"The administration needs to unconditionally abandon its irresponsible, pre-9/11 approach to terror," said Senate Judiciary Committee member John Cornyn, R-Texas.
"It is shocking that it took nearly a year and a half of bipartisan opposition and the outcry of the American people to sway the administration to reverse course, but I'm glad the president and attorney general have changed their minds," Cornyn added.
Underlying the rhetoric was Holder's national security argument that disabling the federal court option for trying Gitmo detainees is a bad idea.
"Too many people, many of whom should know better, many of whom certainly do know better, have expressed doubts about our time-honored and time-tested system of justice," said Holder. "That's not only misguided, it is simply wrong."
The White House left it to the attorney general to announce the switch, just as the White House did when Holder announced in November 2009 that the five men would be tried in civilian court.
Asked whether the president had any involvement in the decision, White House spokesman Jay Carney said, "I believe there are conversations about heads-up and that sort of thing, but nothing substantive."
"The president's primary concern here is that the perpetrators, the accused perpetrators of that terrible attack on the American people, be brought to justice as swiftly as possible and as fairly as possible," said Carney.