Washington is abuzz about questions whether bin Laden would ever see the inside of an American courtroom or where he might be imprisoned if he doesn't stand trial. The discussion, which on Wednesday bounced from Capitol Hill to the White House, is still mostly an academic exercise because there is no suggestion that the government is any closer to finding or capturing bin Laden, believed to be hiding in Pakistan.
For years, President Barack Obama's administration has maintained that criminal courts were more than equipped to handle even the most serious terror cases, but when faced with that question Wednesday during a Senate hearing, CIA Director Leon Panetta said the administration probably would just send bin Laden to the U.S. prison at Guantanamo Bay, Cuba.
That suggests that, at least under current U.S. law, bin Laden would never be transferred to U.S. soil to be tried in the civilian court system. Congress last year ordered that no federal money could be spent to ship prisoners from Guantanamo Bay to the U.S. mainland.
Bin Laden, who has evaded capture for more than 10 years, has been indicted and could stand trial in New York City.
Panetta's remarks indicate that given the choice, Obama would opt to use the Bush administration policy that the president has long criticized.
National Intelligence Director James Clapper told senators if bin Laden was caught, there likely would be a debate about whether to try him.
These plans were not echoed by the White House.
"The president remains committed to closing the prison at Guantanamo Bay because as our military commanders have made clear, it's a national security priority to do so," spokesman Jay Carney said when asked about this. "I'm not going to speculate about what, you know, would happen if we were to capture Usama bin Laden."
Attorney General Eric Holder has been asked a similar question which he deflected, saying he hoped the U.S. will capture and interrogate bin Laden, but he doesn't expect the Al Qaeda leader will be taken alive.
The varied answers from Obama administration officials show that nearly 10 years after the worst terror attack on U.S. soil, there is still not a clear message for what to do with the people behind it. So far, no one has been prosecuted for the Sept. 11, 2001, attacks.
Panetta and Clapper offered their plans in response to a hypothetical question from the top Republican on the Senate Intelligence Committee, Sen. Saxby Chambliss of Georgia. Chambliss asked what the government would do if it captured two of America's most wanted terrorists -- bin Laden and his deputy, Ayman al-Zawahiri.
"We would probably move them quickly into military jurisdiction at Bagram (in Afghanistan) for questioning, and then eventually move them probably to Guantanamo," Panetta said.
Clapper said, "If we were to capture either one of those two luminaries -- if I can use that term -- I think that that would probably be a matter of some interagency discussions as to what their ultimate disposition would be and whether they would be tried or not."
A CIA spokesman, George Little, later said the decision about bin Laden's capture would be left to senior government officials.
"As Director Clapper made clear, and as Director Panetta agrees, any decision about what might happen if Usama bin Laden and other terrorists are captured would be a decision for policymakers, and would have to be informed by the circumstances of his capture," Little said after the hearing. Little said Panetta supports the president's plan to close the prison at Guantanamo.
The Obama administration maintains that terrorists can and should be tried in the U.S. The fight over bringing Guantanamo detainees to the U.S. became a political issue for the White House after Holder announced in November 2009 that professed 9/11 mastermind Khalid Sheikh Mohammed would be brought before a civilian court in New York City to stand trial. Criticism from Republicans and New York Democrats forced the administration to back away from that plan.
The administration still has not announced a decision on how to proceed with trials or shutter the Guantanamo prison that still holds 172 detainees.