Government Forfeited Right to Seek Death Penalty Against Accused 9/11 Mastermind, Sources Claim

Editor's Note: This article was supported by The Pulitzer Center.

Guantanamo Naval Base, Cuba – The historic effort seeking to impose the death penalty on Khalid Shaikh Mohammad for his role as the accused mastermind of Sept. 11 may be in jeopardy as several sources report the plea agreement he signed – which Secretary of Defense Lloyd Austin ostensibly revoked – contained "a poison pill" taking capital punishment off the table if the government withdraws from the agreement without proper cause.

“The death penalty is off the table no matter what,” one source familiar with the agreement said.   

Austin may have triggered the penalty clause by withdrawing from plea agreements on Aug. 2, just two days after they were signed by the Pentagon official he appointed to oversee the Guantanamo court system.

The clause is also included in the agreement with Mustafa al Hawsawi, sources said. However, it is not known to be in the deal with Walid bin Attash, the third defendant who agreed to a plea deal.

The plea agreements are currently under seal, as are some of the legal filings to determine their enforceability in the wake of the unprecedented change of course by the Pentagon.

The judge on the case, Air Force Col. Matthew McCall, is currently weighing competing written arguments from the prosecution and three defense teams on whether Austin could lawfully revoke the deals. Some individuals who have read the plea agreements believe that the tribunal may now have to proceed as a non-capital case for Mohammad and al Hawsawi – even if McCall finds that Austin acted within his legal right to withdraw.

The withdrawals are a "major screw up," if Austin intended to push the case toward a capital trial but instead guaranteed "just the opposite," said another source. A spokesperson for the Department of Defense did not immediately respond to written inquires.

The week after Austin withdrew from the deals, he told reporters that he “believed that the families of the victims, our service members, and the American public deserve the opportunity to see” trials carried out. He did not specify if he wanted capital trials.

The court’s convening authority, Susan Escallier, signed deals with Mohammad, bin Attash and al Hawsawi on July 31. The agreements removed the death penalty as a sentencing option in exchange for the defendants pleading guilty to their roles in either planning or facilitating the 9/11 attacks. Announcement of the deals sparked immediate backlash from senior political figures and some victim family groups who fervently believe that the defendants should face the death penalty for the worst-ever attacks on American soil. A group in support of the deals complained of an "emotional whiplash" that may yet experience additional jolts.

Austin’s brief memorandum to Escallier on Aug. 2 did not assert that she acted outside of her authority as convening authority in reaching the agreements, nor did it claim that he found any deficiencies in the terms of the deals. The New York Times reported on Aug. 4 that Austin, who was traveling when Escallier signed the deals, had not read the agreements prior to his decision to withdraw from them.

Austin wrote, instead, that he was removing Escallier’s authority to reach plea agreements in the 9/11 case and reserving it for himself “in light of the significance of the decision.” He stated he was exercising that authority to withdraw from the three agreements.

Since that tumultuous about-face, the three defense teams filed motions requesting that McCall enforce the plea agreements and hear the entry of guilty pleas – as had been agreed to before Austin's actions. Defense lawyers claim that Austin had no legal basis to revoke valid contracts signed by an official with independent discretion to approve plea agreements – particularly after she already exercised that function assigned to her by Austin. They have also argued that their clients had begun fulfilling the terms of the agreements by signing stipulations of fact admitting to roles in the 9/11 plot and by declining to participate in the ongoing suppression hearing related to the defendants' confessions. That hearing is now limited to Ammar al Baluchi, a nephew of Mohammad’s, who did not reach a plea agreement.

The prosecution team led by Clay Trivett, meanwhile, claims Austin acted lawfully within his broad powers as Secretary of Defense and as the “superior convening authority” of the military commissions. Any actions by the defense teams in the two-day window after Escallier signed the deals did not constitute any legal fulfillment of “performance” under a plea agreement, according to the government.

Similarly, the sources did not know if the government would claim Austin had the broad power to revoke the penalty clause despite its explicit purpose to the contrary. None of the dozen or so filings made public that are associated with the disputed plea agreements make any reference to a clause that removes the death penalty upon a government withdrawal, or to any specific terms of the sealed documents. One source said the defense has referenced the provision in sealed filings but that the prosecution has not directly addressed it.

The individuals familiar with the plea agreements said that the withdrawal clause was intended to guard against future administrations hostile to the deals, with one source citing a particular fear that a second Trump administration would seek to kill the agreements. 

McCall initially planned to hear oral arguments on the disputed plea deals at this ongoing hearing, set to last from Sept. 16 to Oct. 18. However, he now appears likely to hear arguments – if any – at the three-week November hearing scheduled to start Nov. 4, the day before the 2024 presidential election. During the first week of this hearing, McCall said he may be able rule on the dispute based on the written briefs.

McCall devoted the first two weeks of this hearing session to witness testimony for al Baluchi’s motion to suppress the confessions he gave to FBI agents on Guantanamo Bay in January 2007, following his years in CIA custody. That protracted defense effort had dominated the case for all four defendants in recent years, until the trio reached their plea deals with Escallier on July 31. The defense teams for the three defendants who signed a plea deal have since declined to participate in proceedings, claiming their plea agreements remain valid; McCall has ordered each team to have at least one lawyer attend each hearing as an observer.

The judge has decided not to hold hearings in the case next week, the session’s third. The government will call its planned final witness in the suppression sessions, forensic psychiatrist Dr. Michael Welner, during the fourth week. McCall has told the parties he may cancel the fifth week.

Stephan Gerhardt, whose younger brother Ralph was killed in the World Trade Center’s North Tower on 9/11, attended the first week of this session in hopes of hearing oral arguments on the plea deals. He said this week by phone that he “was not excited” by the plea agreements because the death penalty was “justifiable” for the crimes of 9/11.

“But they were a logical, sensible solution to the quagmire that we were in,” Gerhardt said.

The plea agreements, if ever finalized, will culminate in a lengthy sentencing trial in which the defendants will be required to admit to their crimes. The defendants have also agreed to answer questions submitted by victim family members. Gerhardt said that getting convictions for the 9/11 defendants is preferable to the uncertainty of pretrial proceedings that could continue for many more years and may never reach a trial.

“I don’t want to see the forever trial,” he said.

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case.  His book on the 9/11 case is scheduled for publication early next year.