Fired Official Was Exploring Resolution to 9/11 Case Precluding Death Penalty

WASHINGTON — Before his sudden firing last week, the Pentagon official who oversaw military commission trials at Guantánamo Bay was exploring potential plea deals to end the long-delayed prosecution of five suspects in the Sept. 11 attacks, a move that would foreclose the possibility of execution, according to several people familiar with the matter.

No deal was imminent, the people said, but the talks were active and contemplated the defendants — including Khalid Sheikh Mohammed, the self-described architect of the attacks — pleading guilty and probably receiving life sentences. Most of the people spoke on the condition of anonymity to discuss sensitive deliberations.

The Pentagon has refused to explain the moves in public, and it provided no rationale to the men when they were handed one-paragraph letters notifying them of their dismissal, one person said.

It is not clear whether the settlement talks prompted the Trump administration’s abrupt ouster Monday of the official, Harvey Rishikof, who was the military commission system’s convening authority. His legal adviser, Gary Brown, was simultaneously fired.

But either way, Rishikof’s discussions with defense lawyers about a potential way to bring a swifter end to the Sept. 11 case in a way that could be deemed favorable to the accused appears likely to inject the firings into the already troubled proceedings.

Under the military commission rules, the convening authority — not prosecutors — negotiate plea deals with the defense, and even the appearance of “unlawful command influence,” or attempts by superiors to influence the handling of a case, is forbidden.

David Nevin, the lead defense lawyer for Mohammed, said he had asked Brig. Gen. Mark Martins, the lead prosecutor, this past week to provide information about the basis for Rishikof’s firing as a matter of discovery, the process by which the government must turn over to the defense relevant information in its possession.

“The firing fairly raises the question of whether it constituted unlawful influence on the convening authority, and we have an obligation to try to learn everything we can about that,” Nevin said.

Guilty pleas would offer a way out of a complex case that has been mired in years of pretrial hearings and is certain to face many more years of appeals if it ever gets to trial and results in convictions. Taxpayers have already spent hundreds of millions of dollars pursuing the case, and plea deals would bring earlier closure to victims’ families.

But striking such a deal would mean giving up on winning death sentences against defendants accused of aiding the killing of nearly 3,000 people, and could amount to surrender over the idea of using military commissions to prosecute terrorism cases.

Rishikof was removed by Jim Mattis, the secretary of defense, and Brown was removed by William Castle, the acting general counsel of the Pentagon, according to a statement issued Monday by Tom Crosson, a spokesman for the Office of the Secretary of Defense.

Crosson did not respond on Saturday to an email asking whether the firings were connected to any disagreement over whether the Sept. 11 case should be settled. The firings came less than a week after President Donald Trump announced in his State of the Union speech his intention to make greater use of Guantánamo, despite having sent no new detainees there in his first year in office, and signed an executive order directing Mattis to come up with a new policy for handling future terrorism captives.

Last year, both Trump and Attorney General Jeff Sessions, who have been outspoken supporters of using Guantánamo in general, publicly disparaged the tribunals system as too slow. The system’s larger problems, however, were not the doing of Rishikof and Brown, who were appointed to their roles last spring.

Late last year, Rishikof’s office rejected potential charges against three detainees in connection with the 2002 bombing in Bali, Indonesia, after prosecutors put forward the idea of starting a new case. A person familiar with the matter said Brown had sent the charging package back to prosecutors because it was missing a required element, so it never reached Rishikof for a policy decision.

Cmdr. Sarah Higgins, a Pentagon spokeswoman, confirmed that the charges “were returned to the prosecution team due to a procedural issue” and were never formally received by Rishikof.

Another looming issue is whether the Trump administration will live up to an Obama-era deal that Rishikof’s predecessor struck four years ago with a Saudi detainee, Ahmed al-Darbi, who agreed to plead guilty and cooperate in exchange for being sent home to serve the remainder of his sentence by mid-February 2018. The Trump administration has shuttered the State Department office that negotiated detainee transfers.

Rishikof appears to have been pursuing separate discussions with different legal teams in the Sept. 11 case at various stages of development.

James Connell, a lawyer for another Sept. 11 defendant, Ammar al-Baluchi, said that the last concrete step in his settlement discussions with Rishikof was a meeting last fall, but that the question of Darbi’s fate had slowed the talks.

“I said I could not seriously consider negotiating,” Connell wrote in a text message, unless he knew whether Rishikof “could make an enforceable deal. I said we would talk again after Darbi transfer.”

The Sept. 11 case defendants offered to plead guilty in late 2008, but the Obama administration then took office and shut the commissions down. It later decided to overhaul the system and keep it, but wanted to move the Sept. 11 case to civilian court. After Congress blocked that option, the Sept. 11 defendants were re-arraigned before a Guantánamo tribunal in 2012 — and pleaded not guilty.

Years of pretrial hearings and delays ensued. Last year, prosecutors completed providing the defense with the evidence the government thinks it is entitled to see. But, in an illustration of the continuing complexities that settling the case would sidestep, defense lawyers are insisting that they must have a freer hand to try to learn more about the CIA’s former black-site prisons, where their clients were tortured.

Defense lawyers’ strategy is to focus on that torture as mitigation against potential death sentences and to seek suppression of statements their clients made to the FBI shortly after the CIA sent them to Guantánamo in 2007.

The evidence the government has turned over about that program includes summaries about what agency employees and contractors who served as guards, doctors and interrogators at the prisons saw and did. Most are described by codes, because the CIA is determined to keep their identities secret.

After providing those summaries, the prosecution told defense lawyers that they are not allowed to directly approach people they think might be such witnesses or to travel to countries they think might have hosted prisons to ask questions. Rather, the defense must go through the government to request interviews, they said — hinting that defense lawyers could be prosecuted for spilling classified secrets if they disobey.

But Connell said defense lawyers had an ethical obligation to independently seek additional details that might persuade members of the jurylike commission to spare their clients’ lives — suggesting that the rival imperatives are creating an irreconcilable conflict.

The issue “sort of blew up out of nowhere, but in another way, it is a long time coming,” Connell told the judge.