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President Obama's advisers are poised to announce a recommendation to reverse course on Attorney General Eric Holder's plan to try the admitted architect of the 9/11 attacks in federal court and instead prosecute Khalid Sheikh Mohammed in a military commission, The Washington Post reported on Friday.
According to high-level sources in the story that spoke on the condition of anonymity, the deliberation over where to try Mohammed and his co-conspirators is in its final stages and the administration could announce its plan before Obama leaves on an upcoming trip to Indonesia on March 18.
Moving Mohammed's trial from a civilian court to a military proceeding would be a setback for the Justice Department, which has openly pledged to try terrorism suspects in federal courtrooms.
"If President Obama reverses Holder's decision to try the 9/11 defendants in criminal court and retreats to using the Bush military commissions, he deals a death blow to his own Justice Department," Anthony Romero, executive director of the American Civil Liberties Union told the Post.
The flip-flop could also undermine the media's ability to cover the trials. The commissions, which were created during the Bush administration, have little precedent behind them and it is unclear what journalists should expect.
Emily Berman, counsel at New York University's Brennan Center for Justice, pointed out commissions have been used to convict three terrorism suspects. Federal courts, which have established procedures that ensure some level of public access, have been used to convict hundreds.
"The idea that the military commission is the way to handle these cases is really a very new idea, it hasn't been used much and when it has been used it hasn't been very effective," Berman said.
The federal courts use a system, PACER, to make court filings available online. It is unclear whether a similar system would be developed if the government decides to try the 188 remaining Guantanamo Bay detainees in military commissions and what categories of documents would be posted on such as system if it is created.
"When is a judge going to determine that it's necessary?" Berman said. "Are they going to make the same judgments as a civilian judge or give more deference to the government's claims?"