Given the constraints about to be imposed by Congress, administration officials concede that it seems next to impossible to bring the 9/11 terrorism plotters to the United States for an Article III, or federal, trial. A decision, made by the president, is weeks away, but the Justice Department's National Security Division has already given up hope, in a sense, after the violent counterreaction to the announcement that KSM would be tried in the Southern District of New York. The problem there was that the administration faced a court imposed deadline to make an announcement, and yet it was not ready to effectuate the prisoner transfer, leaving opponents plenty of time to create objections, both real and manufactured.
It is true that several Obama advisers are pushing back strongly, arguing that there must be SOME way to try at least one or two of the 9/11 plotters in federal court. But the legal consensus -- the options being given to the president by David Kris, by Mary DeRosa, the legal adviser to the NSC, and by Bob Bauer, the White House counsel, make it clear that military tribunals would be the most feasible option at this point. These advisers seem to have arrived at this conclusion reluctantly, but without prejudice. Goal number one is to close Gitmo, and that means introducing its detainees to the justice system. Goal number two is to bring the 9/11 plotters to justice -- lower-case "j" -- because the venue and manner has always been a matter of intense dispute.
Officials know full well that Obama himself is committed to the principle his administration has been trying to articulate since its inception, which is that combating terrorism need not be at odds with full adherence to the rule of law. Primarily, and this is something the president has said privately and publicly, whatever legal rules he creates or uses to deal with detainees, he wants them to be permanent and legitimate--accepted by the courts, Congress and the public. The irony is that legitimacy comes at the price of compromise , because there is an opposition that wants nothing less than a complete dismantlement of Obama's modifications.
As the Washington Post article notes , Obama hasn't made a decision yet, and I'm told he is inclined to do everything he can to preserve the Article III option...even though he's running out of time. Even though Obama has kept (with important modifications) much of the Bush national security apparatus in place, this has been one major area where the differences in approaches signal fundamentally different views about the American justice system. Officials say that this issue is very close to the President's heart, and he's not going to give up without a fight. In the end, though, he might not have a real choice. (Could he force Congress to filibuster the war funding bill?)
If the idea is to give KSM and his pals justice -- some form of justice -- as opposed to a particular form of justice (as urgent and principled as it might be), even though KSM wasn't picked up on a battlefield (the administration hoped to be about to reserve military tribunals for those picked up in the heat of battle), they may have no other legal recourse other than to hold the man indefinitely without trial. At the same time, by putting KSM into the military commissions system, Obama will be seen as essentially codifying the Bush-Cheney legal architecture and their definition of the laws of war as applied to terrorism. This appalls the left, and one can see why, because that legal schema was built to make it easier to deprive suspected terrorists of their rights much more quickly and with much less transparency. The truth, though, is that Obama, since he became president, doesn't see this issue in black and white.