But senior officials, speaking on condition of anonymity to discuss private discussions, conceded that the one-count conviction, combined with big electoral wins for Republicans this month, will make it harder to close the prison.We're still waiting to see what Eric Holder is going to do with Khalid Sheikh Mohammed. It is already year since they announced plans to try him in civilian court in New York City. The Washington Post has reported that those plans have been abandoned in the face of almost universal condemnation of that idea from New Yorkers.
The administration had hoped for an overwhelming conviction to help ease congressional opposition to Obama's long-stymied plan for moving the detainees to U.S. soil. The administration must notify Congress before any transfer, and Republicans have said they would block such efforts.
"They couldn't come close to getting that done when the Democrats were in charge," said Rep. Peter King, a New York Republican who is expected to be the next chairman of the House Homeland Security Committee. "There's no way they're going to get it now that Republicans are in charge."
The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.So what is the alternative? Lo and behold, the alternative seems to be about where the Bush administration had ended up - leaving him in Guantanamo. They had hoped that convictions of Gahailani would have set the pattern for further federal prosecutions of those detained in Guantanamo. So, despite all of Obama's derision towards Bush's Guantanamo Bay policies, Obama is left in basically the same place despite the administration's attempts to portray themselves as more moral.
The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.
The White House has made it clear that President Obama will ultimately make the decision, and a federal prosecution of Mohammed and four alleged co-conspirators has not been ruled out, senior officials said. Still, they acknowledge that a trial is unlikely to happen before the next presidential election and, even then, would require a different political environment.
Attorney General Eric H. Holder Jr. said this week that a decision on a trial for Mohammed was close. Other administration officials said that his remark was simply a stock response to a frequently asked question and that it didn't signal that any announcement was imminent.
After Holder spoke, Democratic Sen. Charles E. Schumer and Republican Rep. Peter King, both of New York, reiterated their opposition to a Sept. 11-related trial anywhere in New York state, as did the state's governor-elect, Andrew Cuomo. Lawmakers and officials in the state have cited concerns about a trial's cost as well as security issues.
Officials said Mohammed's uncertain future should not obscure what they see as significant and aggressive changes in national security policy, including banning interrogation methods that the administration deemed torture, establishing interrogation units, using unmanned drones to kill hundreds of enemy fighters in Pakistan, and articulating a legal basis for using those drones.So Obama is going to run for reelection having to defend continuing much of the Bush policies on detaining enemy combatants. Of course, he'll never admit that there were good reasons for those policies in the first place. That would be expecting too much honesty and introspection on his part. But the evidence is clear now.
The Mohammed case is "a case that has to be addressed, and clearly it's complicated in ways that weren't originally foreseen, but as a symbol in some way of a thwarted policy, it is wholly misleading," the senior official said.
Administration officials also think that they will probably not secure the funding and legal authority from Congress to close the prison at Guantanamo Bay and transfer any remaining detainees to the United States. There are 174 detainees at Guantanamo Bay, down from 241 when Obama took office. Diplomatic efforts continue to reduce that number through the resettlement or repatriation of detainees cleared for transfer by an interagency task force.
But, one official said, "Gitmo is going to remain open for the foreseeable future."