WASHINGTON — President Barack Obama's willingness to consider moving the trial of self-professed 9/11 mastermind Khalid Sheikh Mohammed out of New York reflects the trouble that Obama's facing in Congress, not just from Republicans but also from Democrats in this tough midterm election year.
If he capitulates, the consequences could go well beyond the trial's location, perhaps unraveling Obama's progress on holding civilian terrorism trials, closing Guantanamo and moving detainees to a prison in the U.S. or pushing ahead with unrelated aspects of his agenda in Congress.
It also could feed one perception that Obama acknowledged in his State of the Union address — that he promised big changes but hasn't delivered — and another that he didn't — that he's a compromiser who always seeks some middle ground.
The president failed to close the detainee center at Guantanamo Bay, Cuba, within his first year, as promised, after Congress balked about transferring detainees to U.S. soil. His bid to overhaul the nation's health care system has stalled, as has a push for legislation to cut carbon emissions to curb global warming. More fights over spending, taxes and jobs programs loom as he prepares to unveil his budget plan Monday.
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He hasn't said for certain that the trial for Mohammed and other alleged conspirators in the Sept. 11, 2001, terrorist attacks will be moved, and some military experts say that Obama can change the location while sticking to his guns on the broader policies, so long as he doesn't give in on requiring a civilian trial and explains his thinking clearly to the public.
Obama already has directed the Justice Department to consider contingencies, as Democrats began joining New York Mayor Michael Bloomberg in urging that the trial be moved because of concerns over costs and chaos.
An administration official confirmed Friday that "conversations have occurred within the administration to discuss contingency options should the possibility of a trial in Lower Manhattan be foreclosed upon by Congress or locally." The official spoke on condition of anonymity because he wasn't authorized to speak on the record.
Those who want to move the trial include Democrats in New York such as U.S. Sen. Charles Schumer, and others such as Sen. Dianne Feinstein of California, the chairwoman of the Senate Intelligence Committee. Critics fear that a trial might cost the city $1 billion and security checkpoints could trigger gridlock for New Yorkers.
Feinstein, in a letter dated Friday, said she worried about the publicity of a trial in Manhattan fueling more terrorist recruits.
She also mentioned the attempt to blow up a U.S.-bound airliner on Christmas Day.
"Without getting into classified details, I believe we should view the attempted Christmas Day plot as a continuation, not an end, of plots to strike the United States by al Qaida and its affiliates," Feinstein wrote.
Gary Solis, a Georgetown University law professor, said that pursuing trials in federal courts was more important than the locations of the trials.
"The most serious offenders should be tried in a federal court because their trial in that forum would remove all doubt in international eyes as well as domestic eyes as to the fairness of the trial."
To address security concerns, the administration could move the trial to a federal court on a military base, Solis said.
"It would not hinder their trial if they were moved elsewhere," he said. "New York was a good place for several reasons and a negative place for other reasons. The same will be true of other cities."
If the trial were moved, however, that could send varying signals about the president's leverage or backbone, depending on whether it stayed in New York state, moved to another state or went to a military base or offshore.
Republicans who oppose the administration's shift toward civilian terrorism trials and think detainees should be dealt with through military commissions see the controversy as an opportunity to force changes.
Sen. Lindsey Graham, R-S.C., said Friday that next week he'd introduce legislation to cut off funds for trying 9/11 conspirators in civilian court like U.S. citizens.
"Moving the trial out of New York City addresses only half the problem," said Graham, a military lawyer and one of the only Senate Republicans who have open, ongoing dialogues with the administration anymore.
Because Congress controls the funding needed to carry out trials and other detainee policies, Obama can't dig in his heels if his own party thinks it can cross him.
Democrats are losing their 60-vote supermajority in the Senate — the number needed to stave off filibusters — after Massachusetts voters last week elected Republican Scott Brown to replace the late Democrat Edward Kennedy.
Administration officials say the president remains committed to trying detainees in federal civilian courts when possible and to closing Guantanamo and purchasing an Illinois prison to relocate some of the detainees.
Demonstrating the obstacles the administration faces, a Guantanamo review panel has concluded that "roughly" 50 of the detainees should be held indefinitely, even though there isn't enough valid evidence to prosecute them.
White House spokesman Ben LaBolt said the president and military officials agreed that "we must close the detention facility at Guantanamo because it is a national security imperative. Guantanamo has consistently been used as a rallying cry and recruiting tool by al Qaida."
At the same time, LaBolt acknowledged "it will take the cooperation of Congress and our allies to close the facility and to bring those detainees who have murdered Americans or conspired to do so to justice."
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