A defense attorney for the man accused of masterminding the Sept. 11 terror attacks told a military judge Thursday that, in the summer of 2017, he was negotiating trading a guilty plea for a life sentence in U.S. military custody, rather than face a death-penalty trial.
Khalid Sheik Mohammed never signed the agreement, capital defense attorney David Nevin said, and the talks were incomplete.
Under pointed questioning by judge Marine Col. Keith Parrella at a pretrial hearing Thursday evening, Nevin said a member of his office staff “hand-delivered” a skeletal proposal on Aug. 17, 2017 to the office of the then-top overseer of military commissions, Convening Authority Harvey Rishikof.
The deal was never realized. While Rishikof was still exploring the idea of case plea agreements, Secretary of Defense James Mattis fired him.
Mattis said he was told Rishikof had not followed a Pentagon chain-of-command on certain administrative duties, and his then General Counsel William Castle recommended termination. Castle testified this week that he assembled a group of experts to find out how to lawfully fire Rishikof without the specter of political or higher-up meddling, known as Unlawful Influence. Before the firing, Castle testified, he was in Mattis’ office on Oct. 13, 2017 and listened to a telephone call between Mattis and former Attorney General Jeff Sessions, who opposed a 9/11 trial plea agreement.
Castle, now the No. 2 lawyer at the Pentagon, said Sessions declared “no deal.“ McClatchy in July was the first to report Sessions’ efforts to scuttle the deal.
Castle testified that he initially didn’t know what Sessions was talking about but chimed in with “no deal” too.
Hearing participants were discussing the disrupted plea deal in the context of an effort by defense lawyers to get the case dismissed, or to at least to make it a non-capital trial, on grounds that Sessions’ call and Rishikof’s firing amounted to Unlawful Influence. The judge has yet to decide whether he’ll hear from more witnesses on the question.
Mohammed is accused of orchestrating the Sept. 11, 2001 attacks, the worst terror attack on U.S soil. Hijackers flew commercial airliners into New York’s World Trade Center, the Pentagon and a Pennsylvania field, killing 2,976 people. Four other men are charged in the joint death-penalty trial as alleged plot conspirators.
Soon after his 2006 arrival at Guantánamo from three and a half years in CIA custody, incognito, the man U.S. agents nicknamed KSM boasted to a military panel that he was “responsible for the 9/11 operation — from A to Z.” His lawyers argue that statement was tainted by torture, notably 183 rounds of waterboarding, a now outlawed near-drowning technique.
A man whose 34-year-old brother was killed in the attack on the World Trade Center told reporters Friday that he was opposed to any deal.
Canadian Ralph Gerhardt, an executive at the Cantor Fitzgerald brokerage firm, was on the 105th floor of a trade center tower when the terrorists struck. He managed to call his parents to say something bad had happened. Then the towers collapsed.
“I personally think the death penalty is the proper sentence in this crime,” said his Canadian-American brother Stephan. “You killed 3,000 people, you bragged that this was your idea, yeah. Ralph was not in a battlefield. He was sitting in a desk.”
Gerhardt, who is here observing the proceedings, said he bears no ill will toward the alleged terrorists’ lawyers. He said he wants the Pentagon-paid attorneys “to work as hard as they can” to get them a fair trial “and then not succeed.”
Nevin told the judge at the end of a daylong open hearing Thursday that his proposed deal sought Rishikof’s agreement that KSM “would not not be prosecuted elsewhere” but did not require the U.S. Attorney General’s approval or signature. He said the idea of the agreement was “that Mr. Mohammed would not be transferred out of the custody of the Department of Defense.” This was to prevent Mohammed from being tried in a U.S. civilian court.
Rishikof, however, did at one point consult Department of Justice officials about the proposed plea offer.
In another mysterious development, another attorney, Jim Harrington, said he never reached a decision on whether to propose a Pretrial Agreement, as the plea deals are called, and was still discussing it with his client, alleged plot deputy Ramzi bin al Shibh.
But Harrington said that, after Rishikof was fired, Harrington met with his successor, acting Convening Authority Jim Coyne, a since-retired Pentagon bureaucrat, and asked Coyne if he had seen any documentation about the proposed plea agreements. Coyne said the paperwork was not in the Convening Authority Office.
“I asked him whether he was aware of negotiations between Mr. Rishikof and me, and he said no,” Harrington said in court. “When he took office, he found no evidence of anything with respect to plea agreements; not just no draft of an agreement, no memoranda, no notes, no anything.”