It’s been more than several weeks since the Administration indicated that a decision on whether Khalid Sheikh Mohammed will be tried in a federal court or military commission was weeks away. Of course, this will be the second decision on the issue – Attorney General Eric Holder first announced that KSM and his 9/11 co-conspirators would be tried in federal court in Manhattan back on November 13.  The opposition to that announcement grew and grew, until the Administration acknowledged it was reconsidering in early February.  More recently, in testimony before the Senate Judiciary Committee on April14, Attorney General Holder again repeated that a decision would come in “a number of weeks.” 

The Administration still intends to go forward with a trial, but it appears that the trial decision has become ensnared in complex negotiations with the Hill.  Politico recently reported that the White House is bargaining with Senator Lindsey Grahamin an attempt to forge a comprehensive deal on detainee policy. According to the article, in return for military trials for the 9/11 plotters, Graham would support congressional funding to establish a detention facility in Illinois for some current Guantanamo prisoners, reform of laws as to who is an enemy combatant, and a preventive detention statute.

According to press reports, the President initially asked Attorney General Holder to choose the site of the trial in an effort to maintain an independent Justice Department.  So a decision that was originally intended to be insulated from politics has now become entirely entangled in politics. The detainee issues that are being negotiated are extremely difficult to resolve (they have been under discussion for years), and there is no reason to think that a grand deal can be achieved with Senator Graham, let alone the whole Congress, anytime soon.  If the KSM trial decision won’t come until the other detainee issues are worked out, we are in for a long wait.

DOJ has traditionally resisted any political intrusion into its charging decisions.  Indeed, as part of that resistance, the staff in the Main Justice building spends lots of time and energy fighting off Congressional requests for information concerning pending investigations and prosecutions.  To be sure, the KSM case is different than the ordinary federal prosecution in lots of important ways and the trial decision deserves a full discussion.  But the current uncertain status of the KSM prosecution is another demonstration of the utility of the traditional DOJ approach.

With any luck, the trial question will be decoupled from the rest of the detainee issues and decided soon.  Whether the prosecution is in a military or civilian courtroom, it will take a long time to complete.  And however the KSM decision is resolved, I hope it yields a consensus on the way forward that will permit prosecutors to move in other terrorism cases without delay.