WASHINGTON — As the White House reconsiders the decision to prosecute the five alleged plotters of the Sept. 11, 2001, terrorist attacks in civilian court, the likely change of course seems designed to protect vulnerable Democrats in Congress more than it is to improve the chances for conviction.
With public dissatisfaction with the Obama administration at record levels, some Democrats see trying the alleged terrorists in military court as a way of blunting the issue and helping to preserve the party's large majorities in the House and Senate.
The Jan. 19 special election of Sen. Scott Brown, R-Mass., demonstrated to skittish Democrats that the decision to prosecute the suspected Christmas Day underwear bomber in civilian court was a polarizing campaign issue.
Even now, said Brown this week, "It's still the number two or three issue back home."
A lot of Democrats, particularly from more conservative states, say the issue — while not as prominent as health care or the economy — could become damaging to incumbents.
"I believe Republicans have used this issue to successfully line up opposition," said Sen. Mary Landrieu, D-La.
The White House and Democratic leaders are privately negotiating how to handle the trials, and the Senate's No. 2 Democrat, Dick Durbin of Illinois, said politics "is part of it," because "it's an issue that's easily exploited."
For its part, the administration denies the upcoming midterm elections are playing a role in the review of Attorney General Eric Holder's decision to try the 9/11 defendants in federal court, an administration official said. However, the official, who wouldn't be quoted by name as a matter of policy, acknowledged that Republican threats to withhold funding to close the U.S. military prison at Guantanamo Bay, Cuba, forced the White House to reconsider.
"It's not a political calculation," the official said. "It's a process to preserve core priorities that recognize congressional realities."
The official also denied that a move to military courts would demonstrate that the White House is reversing course, saying "Nobody is stepping in to reverse anyone at this point. If anyone is, it's Congress."
Yet critics accuse Obama of caving when it matters most.
"I can't see any principled reason for reversing the decision that they announced months ago," said Jameel Jaffer, the director of the National Security Project for the American Civil Liberties Union. "It seems purely political, and political in the worst sense of that word."
A shift in the polls may be prodding White House officials more than they're willing to acknowledge.
At stake isn't only what the majority of Americans feel comfortable with, but also the White House's ability to deliver on one of Obama's central campaign promises: the pledge to close Guantanamo.
"There are just too many political and public opinion factors that must have made them rethink this," said Tobe Berkovitz, a Boston University communications professor.
A Quinnipiac University poll from February gave voters two choices: trying 9/11 terror suspects in military courts to assure better security, or trying them in civilian court to demonstrate the American justice system to the world. Voters clearly preferred military courts.
A CNN/Opinion Research Corp. poll from last month asked specifically about the underwear bombing suspect, and 59 percent favored a military trial for him, a 2 percentage point increase from when the same question was asked in January.
"All of a sudden, a decision that no one except New Yorkers gave a damn about became a hot button issue," Berkovitz said. "Once things get hot, Obama tends to waver."
Democrats are willing to give him lots of leeway.
Sen. Ben Cardin, D-Md., a judiciary committee member, said he saw "consistency" in the administration's positions, not politics. "What the administration is talking about is making judgments on an individual basis," Cardin said. "We have no objection to that."
"The president should have flexibility," added Sen. Dianne Feinstein, D-Calif., the chairman of the Senate Intelligence Committee. Former President George W. Bush "had total flexibility for eight years."
Trial venues, she said, should be evaluated on a "case by case basis."
ï¿½Sen. Lindsey Graham's amendment to block funding for civilian courts got 45 votes in November. In February, the South Carolina Republican introduced full legislation to do the same thing and is working to build support. Sen. Lamar Alexander of Tennessee, the chairman of the Senate Republican Conference, said Graham didn't have the votes yet, adding "We've made the point. We don't have the votes, but we have voices."
No matter what, legal experts said, any reversal by the administration would have little to do with the strength of the case against the 9/11 defendants.
When Holder announced his decision, he noted that he and other prosecutors reviewed the case against each suspected terrorist and determined that the 9/11 defendants should be tried in federal court.
John Hutson, a retired Navy judge advocate general who supports keeping the trials in federal court, said that trying the 9/11 defendants in a military court is more legally risky because the system is relatively untested and likely to be challenged before the Supreme Court, which already struck down an earlier incarnation.
So far, military prosecutors have tried three detainees before a military commission. Two of them already have been released from prison.
Even critics of Holder's decision acknowledge that they don't think confessed 9/11 mastermind Khalid Sheik Mohammed will be acquitted if he's tried in a federal court.
Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee — who advocates a military court — said his main objection to the civilian route is that the U.S. is treating terrorists as criminal defendants rather than wartime enemies.
"They're being treated like convenience store robbers rather than terrorists," Smith said.
Many Americans agree with Smith. When voters were asked as part of the Quinnipiac poll if 9/11 suspects should get the same constitutional protections that U.S. citizens get in civilian trials, or get military trials without those protections, the response was 68 percent in favor of military trials.
Nonetheless, a reversal would be seen as a betrayal by some of Obama's staunchest supporters.
On March 7, the ACLU published a full-page ad in the New York Times calling on President Obama to stick to federal court. The ad features a picture of Obama changing into his predecessor and asks, "What will it be, Mr. President? Change, or more of the Same?"
Even so, Berkovitz said Obama risks little.
"I don't see it backfiring for them politically," he said, adding that it'll probably help insulate the administration from accusations that it's soft on terrorists and "make the terrorism trials recede as an issue."
(Margaret Talev and James Rosen contributed to this article.)
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