Eric Holder's Trials and Tribulations

It is easy to imagine that Holder and Obama, in those private moments, might be a little bewildered — and defensive — about the way their handling of the Khalid Sheikh Mohammed trial has turned out. Obama rejected military tribunals during his presidential campaign and suspended them soon after he took office. By July, Obama had asked Holder to decide whether it was feasible to prosecute KSM in a civilian court. Holder chewed on that question for weeks. Meanwhile, Obama's chief of staff, Rahm Emanuel, who opposed civilian trials, asked Holder to meet with Republican Senator Lindsey Graham of South Carolina, a key centrist vote on matters of counterterrorism. Graham told Holder he strongly opposed civilian trials for the alleged 9/11 conspirators and that they could affect his support for closing Guantánamo Bay prison, a key Obama goal. If that was a warning shot, Holder chose to ignore it. On Nov. 13, Holder announced that the U.S. would bring KSM and his four co-conspirators to New York for trial.

At first it appeared that Holder would carry the day. "I have complete confidence in the American people and our legal traditions and the prosecutors, the tough prosecutors from New York, who specialize in terrorism," Obama said after the announcement. In private he was even more supportive of Holder. When Obama met with Graham in early December, the Senator laid out his case against civilian trials. But the President said he thought Holder had the better side of the argument. "I just agreed to disagree with the President on that issue," Graham told TIME.

Then the failed Christmas bombing attempt on a Detroit-bound airliner gave the GOP an opening. Former New York City mayor Rudy Giuliani launched a campaign against the trials, saying they could lead to new terrorist attacks against the city, while Republicans on Capitol Hill prepared to kill the Holder plan by simply defunding the civilian proceedings — just as they had defunded any domestic alternative to Guantánamo Bay a year before. On Jan. 27, the dam broke: New York City Mayor Michael Bloomberg reversed his previous position and said he opposed a trial in Manhattan because it could cost the city as much as $1 billion.

The next day, Obama asked Holder for "options" — the word this White House uses when it needs to start over. The day after, Holder delivered them in the Situation Room. He urged the President to stick to his guns, and Obama seemed to agree. But in the same session, Emanuel presented a game plan for negotiations with Graham in which the White House would seek to try KSM in a military tribunal in exchange for winning Graham's support for a new U.S. detention facility to replace the controversial military facility at Guantánamo Bay. Obama expressed skepticism about Emanuel's approach, sources at the meeting tell TIME, but approved the talks with Graham anyway. The hunt for a back door had begun.