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 the 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 Department of Justice.

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. They 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 Holder would hold a news conference later in the day. But he said he was “absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice. 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.

The case of one of the al-Nashiri is complicated by the fact that he is one of three detainees known to have been waterboarded during his interrogation. That means that some of the evidence obtained from him could be tainted.

Mohammed and the four alleged co-conspirators in the 9/11 plot 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.

Federal prosecutors in New York and Virginia have jockeyed for months with each other and with military prosecutors for the right to prosecute the high-value detainees, accused of orchestrating the hijacking of the commercial airliners that crashed into the World Trade Center towers in New York, the Pentagon in Arlington and a barren field in Pennsylvania. Top among them is KSM, as Mohammed is widely known.

Since Obama, shortly after taking office, set a one-year deadline to close the military prison at Guantanamo, the question of where to prosecute has also been the subject of vigorous public debate.

Human rights groups have long argued that military commissions lack the legitimacy of federal prosecutions and say that any death sentences stemming from a military proceeding would be tainted.

Republicans and some advocacy and relatives’ groups have expressed dismay at the prospect of trials in U.S. criminal courts, arguing that military commissions at Guantanamo Bay offer both a secure environment and adequate legal protections for defendants.

Some Republicans, including Sen. Lindsey Graham of South Carolina, as well as some former military prosecutors, have said that if high-profile detainees such as Mohammed are sent to federal court, the military commission will be degraded and viewed as a second-class system of justice for other terror suspects.

(Source: Washington Post)