White House advisers will recommend that the Obama administration prosecute the accused mastermind of the Sept. 11 attacks before a military tribunal, according to the Washington Post.

Such a move would reverse the decision by Attorney General Eric Holder to hold the trial of Khalid Sheik Mohammed and four alleged co-conspirators in federal court. That decision was criticized by members of Congress from both parties who argued that a military tribunal is an appropriate forum for those accused of launching an attack on the country. But supporters of Holder’s decision say holding the trial in a civilian court, which would afford the accused greater constitutional protections, would demonstrate the country’s commitment to the rule of law.

But according to the Post, White House officials felt hamstrung by members of Congress. Advisers feel the reversal is the only way to secure support and funding from Congress to close the detention center at Guantánamo Bay. The administration has already missed its one-year deadline for closing the facility. More here from the Washington Post.

In other legal news:

Gitmo push back: The American Bar Association is pushing back against lawmakers seeking the names of Justice Department attorneys representing Guantánamo Bay detainees. The lawyers have been dubbed “the Al-Qaeda Seven.” (ABA Journal)

License to marry: On Wednesday, the District of Columbia began issuing marriage licenses to same-sex couples, after U.S. Supreme Court Chief Justice John G. Roberts, Jr. refused to stay a new law authorizing them. (Lawyers USA)

Greatly exaggerated: Did you hear about the rumor that Chief Justice John G. Roberts is considering retirement? Yeah, he didn’t either. (AP)

Deal breaker: A dozen House of Representatives Democrats opposed to abortion are willing to kill President Barack Obama’s health care reform plan unless it satisfies their demand for language barring the procedure, Representative Bart Stupak said on Thursday. (Reuters)

The new federal hate crimes law is being challenged by a group of pastors and a conservative organization, who claim the law violates several provisions of the Constitution.

Main Justice reports that lawyers from the Thomas More Law Center filed the lawsuit on behalf of Pastors Levon Yuille, Rene Ouellette and James Combs as well as Gary Glenn, the president of the American Family Association of Michigan.

The complaint alleges that the law, passed to stop bias-motivated crimes against gay, lesbian bisexual and transgendered individuals, violates the First, Fifth and Tenth Amendments, as well as the Commerce Clause. It lists Attorney General Eric Holder as the defendant, and is the first constitutional challenge to the new hate crimes law’s provisions.

“[T]he Hate Crimes Act .. promotes [an] Orwellian concept: thought crimes,” the complaint states. “[It] criminalizes certain ideas, beliefs, and opinions, and the involvement of such ideas, beliefs, and opinions in a crime will make the crime deserving of federal prosecution. Consequently, government officials, including Defendant, are claiming the power to decide which thoughts are criminal under federal law and which are not. [The] Hate Crimes Act is intended to send a government endorsed message to those persons who oppose the homosexual agenda on the basis of deeply held religious beliefs, such as Plaintiffs, that their religious beliefs are disfavored and the equivalent of racist beliefs.”

A Justice Department spokesman told Main Justice that the government would “defend these vital protections in court.”

HT: ABA Law Journal

The era of discord between the branches of government continues. Last week President Barack Obama took open aim at the U.S. Supreme Court for its campaign finance ruling - and Justice Samuel Alito returned fire with a grimace, a head shake and a “not true.” Now members of the executive and legislative branches spent Sunday morning taking aim at each other.

Members of Senate blasted the Justice Department over decisions the department has made in two high-profile terrorism trials.

Sen. Lamar Alexander

Sen. Lamar Alexander took to the Sunday morning talk show airwaves to call for the resignation of Attorney General Eric Holder for allowing suspected underwear bomber Umar Farouk Abdulmutallab to be given a Miranda warning.

Abdulmutallab after speaking for almost an hour, was sedated to receive medical treatment. When he awoke, he no longer wanted to talk, and was then Mirandized. The Los Angeles Times reports that a number of other agencies - the FBI, State Department and CIA - authorized the Miranda warning.

Alexander said Holder needs to explain himself to lawmakers/

“(Holder’s) doing a better job of interrogating CIA employees than he is of interrogating terrorists, and he’s not making a distinction between enemy combatants and terrorists flying into Detroit trying to blow up planes and American citizens who are committing a crime,” Alexander said on “Fox News Sunday,” reports The Hill. “He needs to go to Congress and say I made that decision, and here’s why. And based on that perhaps he should step down.”

White House advisor Davd Axelrod

Meanwhile, the Justice Department is still facing head from Republicans on the Hill for the decision to hold the Sept. 11 terror attack trial in a lower Manhattan civilian court - and now the Obama administration is considering changing the venue after New York City Mayor Michael Bloomberg expressed concern about the costs and security issues of holding Khalid Sheikh Mohammed’s trial in lower Manhattan. Bloomberg had initially supported the decision.

No decision has been made on where the trial may be held, but White House officials shot back at GOP lawmakers who criticized the administration for not trying the case in a military tribunal. David Axelrod, the senior adviser to President Obama, pointed out on “Meet the Press” that suspects including “shoe bomber” Richard Reid were tried in civilian courts under President George W. Bush.

“Now we have a Democratic president and suddenly we hear these protests,” Axelrod said. “What has changed between now and then that would cause people to reverse positions?”

The Justice Department snapped the ball Friday, but lawmakers are still sounding off over the Obama administration’s decision to bring suspected Sept. 11 terrorists to trial in a New York civilian federal court. While some GOP officials blasted the move, saying it would create logistical nightmares and give terrorists a platform to spew propaganda, Democrats including Senate Judiciary Committee Patrick Leahy defended the move. More from The Washington Post.

President Obama is in Asia, where his busy agenda includes a chat with Chinese officials about defective Chinese drywall, which has led to a host of headaches and lawsuits over claims that the imported product caused damage and noxious fumes in thousands of U.S. homes.

And the U.S. Supreme Court could add some cases to its docket today. Oral arguments resume Nov. 30.

Meanwhile,

Judiciary slow to change: President Obama has nominated far fewer federal judges than President Bush did in his first 10 months in office, making the prospect of swift change in the federal judiciary seem dimmer by the day. (The New York Times)

Ricci firefighters seek promotions:  seek The New Haven firefighters who sued the city for discrimination in a case that went all the way to the Supreme Court filed a draft order in federal court Friday asking for most of them to be promoted. (Yale Daily News)

Porteous files suit: A Louisiana federal judge sued a House impeachment task force Friday, contending the panel is making the case for his ouster by using testimony he gave under a promise of immunity. (AP; More, including complaint and other filings, here from How Appealing)

More snags ahead on health care reform: Immigration looms as sticking point in health-care legislation. (Washington Post)

From Congress to prison: Former Rep. William Jefferson was to 13 years in federal prison for public corruption. (The BLT)

The Obama administration will announce today that accused Sept. 11 attacks mastermind Khalid Sheik Mohammed and three alleged co-conspirators will be tried in federal court in New York instead of a military commission.

Attorney General Eric Holder is expected to make a formal announcement at a press conference later today.

President Obama, speaking to reporters in Japan, said the federal trial will come with the same accountability standards as a military trial. “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.”

More on the developing story from The Washington Post and The New York Times.

In other legal news,

Preemption problems: “Mess,” “Muddle” and “chaos” were words used do describe the state of the doctrine preemption after the Wyeth v. Levine decision - by people on both sides of the issue - at the Federalist Society’s National Lawyers Convention. (The BLT)

Med-mal HIPAA change: Medical malpractice defense lawyers may not know that they are likely covered by new HIPAA rules on privacy breaches of health data. (Lawyers USA)

Massey overturned again: For a third time, the West Virginia Supreme Court has overturned a $50 million judgment against Massey Energy - the case that went all the way to the Supreme Court, which ordered a rehearing of the case without the judge who received campaign contributions made by Massey’s CEO. (Charleston Gazette)

Gitmo casualty: Sources tell The Washington Post that White House Counsel Gregory Craig will resign as early as today, ending a tenure marred by the struggle to close the Guantanamo Bay detention center. (WaPo)

When DC Dicta read transcripts from Alberto Gonzales’s infamous Senate Judiciary Committee hearings, we didn’t hear music. But an undergrad at a Pennsylvania college apparently did - and she went on to write a concert opera based on the fallen attorney general’s testimony. And that show is now on stage in Philadelphia!

Every word sung in The Gonzales Cantata, playing at this year’s Philadelphia Fringe Festival, comes from the transcripts of the 2007 hearings that marked the beginning of the end for the Justice Department head, who was under fire for the alleged politically-motivated firings of U.S. attorneys and other issues. And since it’s a holiday weekend, and Philly is a quick car trip from Washington, perhaps some locals might consider checking it out.

More, including a Q&A with the show’s writer, here on The WSJ’s Law Blog.

Drama! Just when you think there couldn’t possibly be more to the U.S. attorney firing scandal from the last administration, The Washington Post comes out with new details today.

Former White House counsel Harriet Miers told members of a House committee that former advisor Karl Rove was not happy with the job former U.S. Attorney David C. Iglesias was doing investigating key Democratic lawmakers who were in hotly contested elections against GOP challengers. Miers said Rove was “agitated” by the slow progression of the corruption cases, and told her in 2006 that Iglesias as a “serious problem” and said he wanted “something done” about it, the Post reports. The conversation came months before Iglesias was let go, Miers told lawmakers. He was one of nine U.S. attorneys fired under Attorney General Alberto Gonzales, and house lawmakers have been investigating whether the dismissals were politically motivated.

Miers comments come from transcripts of testimony she gave to the House Judiciary Committee. She did not comment for the Post story, but Rove did, saying he “never sought to influence the conduct of any prosecution” and accusing Democrats of making “false accusations and partisan innuendoes.”

House Judiciary Committee Chairman saw it differently. “Under the Bush regime, honest and well-performing U.S. attorneys were fired for petty patronage, political horse-trading, and, in the most egregious case of political abuse of the U.S. attorney corps — that of U.S. attorney Iglesias — because he refused to use his office to help Republicans win elections,” Conyers said Tuesday.

More here from the Post.

The information comes from hundreds of documents released by the Judiciary Committee Tuesday. More here from Reuters.

With the prospect of lawmakers coming to a consensus on the health care bill all but dead, next week the hottest item on the legislative agenda will be confirming Supreme Court nominee Sonia Sotomayor. The Senate is set to take up her nomination on Tuesday, but expect many, many senators to speak on the nominee, so there is no telling just when the actual vote will take place.

In other news to wrap up this work week:

Raising the red flag: With the American Bar Association threatening to sue to exempt lawyers from new identity theft rules set to go into effect this week, the Federal Trade Commission has delayed the rules for 90 days and issued guidance to help lawyers and other businesses better understand the requirements. (Lawyers USA)

Tax break speed bump: Legislation filed earlier this year that would amend the Internal Revenue Code to allow attorneys to deduct certain expenses and costs in contingency fee cases up front is stalled in Congress - and won’t move unless it can be attached to a bigger tax bill. (Lawyers USA)

GOP ‘yea’:Tennessee Sen. Lamar Alexander, the Senate’s No. 3 Republican, has announced he will vote for Supreme Court nominee Sonia Sotomayor. (AP)

Rove-ing report: Remember when all those U.S. attorneys got fired a few years ago, and the ensuing political brouhaha that ultimately led to Attorney General Alberto Gonzales’ resignation? Well Karl Rove had a little more to do with all that than previously reported. (WaPo)

Rove-ing response: Rove himself says his role in the whole thing was very small. (NYT)

Not wild for Gonzo: Speaking of Gonzales, he’s excited about his new teaching gig at Texas Tech University. The dozens of professors who signed a petition seeking protesting his presence on campus? Not so much. (WSJ’s Law Blog)

The only topic on the minds of folks on Capitol Hill and in the White House besides health care seems to be Supreme Court nominee Sonia Sotomayor. And although she faces some opposition from Senate Republicans, the biggest question surrounding her confirmation seems to be when it will happen, not if it will happen. The Chairman of the Senate Judiciary Committee has set the vote on Supreme Court nominee Sonia Sotomayor for Tuesday, but Republicans want to wait until July 28.

Meanwhile, in other legal news from Washington:

GOP A-OK: Three Republican senators have already said they will vote for the nominee. (ABA Journal)

EEOC top pick: President Obama has made his selection to head the Equal Employment Opportunity Commission: Jacqueline Berrien. (Lawyers USA)

Clinton case dismissed: A federal judge on Thursday threw out a 13-year-old lawsuit against Hillary Rodham Clinton involving the White House’s handling of FBI background records. (AP)

Bad times for AG: Dealing with congressional clashes, angry judges and a cracked tooth, it hasn’t been a good month for Attorney General Eric Holder. (WaPo)

After yesterday’s Supreme Court ruling that convicts don’t have a constitutional right to access post-conviction DNA evidence, Attorney General Eric Holder issued a statement saying that the ruling won’t foreclose DNA evidence examinations of prisoners.

“[The] decision is limited: the Court merely spoke about what is constitutional, not what is good policy.  And there is a fundamental difference,” Holder said in the statement.  “Constitutional rights are only one part of a fair and full system of justice.  Simply because a course of action is constitutional does not make it wise.”

Noting that the opinion itself speaks to the “unparalleled ability” of DNA evidence “both to exonerate the wrongly convicted and to identify the guilty,” Holder said post-conviction DNA analysis will continued to be a part of DOJ policy.

“[T]his administration believes that defendants should be permitted access to DNA evidence in a range of circumstances,” Holder’s statement said. “Today’s decision reaffirmed the power of such practices, and I hope that in light of today’s decision all levels of government will follow the federal government’s lead by working to expand access to DNA evidence.”