Official: Accused 9/11 mastermind, others to be tried in N.Y.

(Washington Post) Khalid Sheik Mohammed -- the self-proclaimed mastermind of the Sept. 11, 2001, attacks -- and four co-defendants will be tried in federal court in New York instead of a military commission, a federal official said early Friday. 

Abd al-Rahim al-Nashiri, accused of orchestrating th e bombing of the USS Cole when it was docked off the coast of Yemen in 2000, will be tried at a military commission, said the official, who spoke on condition of anonymity because the decisions have not yet been formally announced by the Justice Department.

The long-awaited decisions on prosecution, part of President Obama's quest to close the military detention center at Guantanamo Bay, Cuba, do not affect the vast majority of the 215 prisoners held at the prison. The decisions come on the same day that White House counsel Gregory B. Craig, a key manager of Obama's Guantanamo Bay policy, is expected to announce his resignation.

Obama, speaking to reporters in Japan on the first day of an eight-day overseas trip, declined to comment extensively on the decisions, saying Attorney General Eric H. Holder Jr. would hold a news conference later in the day. But he dismissed concerns that trial in federal court would mean a less stringent accountability process.

"I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice," Obama said. "The American people insist on it, and my administration will insist on it."

Administration officials say they expect that up to 40 of the detainees at Guantanamo Bay will ultimately be tried in either federal court or military commissions -- possibly including federal courts in the District or Alexandria. Approximately 90 others have been cleared for repatriation or resettlement in a third country, according to an administration official.

That leaves up to 75 individuals remaining at Guantanamo who could continue to be held under the laws of war because they are deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

It is not clear whether officials will detail the reasons for keeping Nashiri's case within the military justice system, although one explanation could be that the attack he is allegedly linked to was on a U.S. warship docked in foreign territory, rather than a civilian target on American soil. Officials have said military commissions will be located within the United States, not at Guantanamo, though no location has yet been officially designated.

The prosecution of cases in both federal court and military commissions may be complicated by the treatment of detainees while in CIA custody. Both Mohammed and Nashiri were waterboarded at secret agency "black sites," and defense lawyers are likely to press hard to get evidence of abuse into the court record.

CIA interrogators also used a handgun and an electric drill in an attempt to frighten Nashiri into giving up information, according to a report by the CIA's inspector general, portions of which were released earlier this year. Intelligences sources said the drill was held near Nashiri and turned on and off repeatedly, and the suspect was also shown a gun to make him believe he would be shot.

Federal prosecutors in New York and Virginia have jockeyed for months with each other and with military prosecutors for the right to try Mohammed and the four alleged co-conspirators in the 9/11 plot, who had been facing capital charges in a military commission at Guantanamo Bay.

The administration requested a series of suspensions in those proceedings earlier this year, while officials decided on the best forum for prosecution. But the government assured military judges that they would make a final determination by Nov. 16.

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