Attorney General Jeff Sessions called Secretary of Defense Jim Mattis in October to protest exploratory talks about a plea deal in the 9/11 case that would have taken the death penalty off the table, according to an investigation by defense attorneys who want a military judge to order both men to testify at the war court.
At issue is Mattis’ Feb. 5 firing of the overseer of military commissions, Harvey Rishikof, at a time when he had been secretly exploring the possibility of guilty pleas to resolve the terror trial. Pretrial hearings continue this week in the case that started with the May 2012 arraignment of alleged plot mastermind Khalid Sheik Mohammed and four alleged accomplices.
Nearly 3,000 people died on Sept. 11, 2001 when 19 men seized four commercial airliners and crashed them into the World Trade Center, Pentagon and a Pennsylvania field. Within 20 months, the United States had seized the five men accused of directing, training or helping the hijackers with travel and finances. The CIA held and interrogated them for years in the spy agency’s secret overseas prisons, complicating the path to trial.
Now, defense attorneys argue that Trump administration meddling in the guilty-plea negotiations merits, if not dismissing the case entirely, then making it a non-capital trial. Mattis and his acting general counsel, William Castle, have earlier said in affidavits that they fired Rishikof and his legal adviser, Gary Brown, for failure to follow proper Pentagon channels, a taboo in a military culture led by Mattis, a retired Marine general.
But the alternative explanation involving the plea deal merits open-court testimony from Sessions, Mattis and Castle, military justice expert Eugene Fidell said in an interview.
“There’s certainly enough there that a thorough evidentiary hearing has to be conducted,” said Fidell, who teaches at Yale law school. “If you’re going to preserve the integrity of the system, and have any hope of fostering public confidence in the military commissions system, this has to be aired in a full way on the record.”
Sessions needs to answer two key questions, Fidell said: “How did he find out about discussions of a possible plea deal — and did he talk to the White House?”
Defense attorney Jay Connell describes the behind-the-scenes machinations in a 22-page document obtained by McClatchy that justifies the need for a series of in-court witnesses on the question of meddling, or unlawful influence, as it is known at the war court.
They include Mattis, Deputy Secretary Patrick Shanahan, Castle, Rishikof, Brown, Sessions, former Deputy Secretary of Defense Robert Work, deputy general counsel Ryan Newman, and U.S. Southern Command commander Adm. Kurt Tidd.
Also sought is ACLU Executive Director Anthony Romero. The document discloses for the first time that Romero unsuccessfully sought to negotiate a plea deal with the White House during the Obama administration.
The Guantánamo war court judiciary is meant to be independent of politics. Mattis appointed Rishikof, a civilian attorney, to serve as the top authority at military commissions, called the Convening Authority, on April 4, 2017 then fired him in February 2018. The Convening Authority has the power to approve or dismiss cases and make or approve plea deals, if the prosecutor proposes them.
But Connell writes in his request for a judicial order to question Castle about an Oct. 16, 2017 meeting with the top two war court officials, Rishikof and Brown. In that meeting, Connell writes,the men discussed a call earlier that month from Sessions to “Secretary Mattis to voice his objections to potential plea deals in the 9/11 case.” The call “interrupted a meeting” that Mattis was having with “senior military officers,” the document says.
At the Justice Department, Sessions’ spokeswoman, Sarah Isgur Flores, said she could not confirm the details but said that the attorney general “certainly speaks with other Cabinet members regularly, Secretary Mattis included.”
The spokeswoman declined to say whether Sessions met with Sept. 11 families or heard from the White House prior to phoning Mattis about the plea discussions.
Pentagon spokeswoman Navy Cmdr. Sarah Higgins declined comment, citing the Department of Defense’s “longstanding practice not to comment on matters in litigation.”
She specifically declined to confirm that the phone call happened, or say who Mattis was meeting with at the time of the call. On a question of whether this kind of involvement in the hybrid military-federal military commissions by the attorney general would be appropriate, she replied: “As always, the Department [of Defense] is committed to ensuring military commissions achieve a just resolution of all referred cases.”
Connell, who headed up the investigation, told McClatchy the Department of Justice apparently found out about ongoing discussions because some defense attorneys wanted assurances that, if their clients pleaded guilty, the captives could serve their sentences at Guantánamo not a SuperMax federal prison in the United States.
Rishikof had been in touch with a deputy of Sessions to discuss whether such assurances were possible, Connell said.
The transfer of any Guantánamo detainee to U.S. soil for any purpose is currently prohibited by federal law.
A soon-to-retire Pentagon bureaucrat, Defense Logistics Agency General Counsel Jim Coyne, has been filling the job of Convening Authority on an interim basis.
This effort by the 9/11 defense lawyers is part of a long series of so-far unsuccessful efforts to dismiss or downgrade the capital case due to alleged political meddling across different administrations.
▪ In May, Mohammed’s lawyers argued that President Donald Trump’s incendiary tweets on military justice tainted the 9/11 trial, which has no start date. The judge, Army Col. James L. Pohl, has yet to rule.
▪ In 2016, the judge ruled that remarks by political leaders stretching back to the George W. Bush presidency did not constitute unlawful influence but said that lawyers will be allowed to more liberally scrutinize who is chosen for the jury of U.S. military officers.
▪ In 2015, Pohl found that a Pentagon order for war court judges to live at Guantánamo until the terror trials were over raised the specter of unlawful influence. He halted the pretrial hearings, and the move-in order was withdrawn.
McClatchy obtained the document seeking Sessions’ and Mattis testimony in advance of a July 23-27 pretrial hearing in the case, which is expected to focus in part on limitations on defense attorneys in seeing original case evidence and independently investigating the CIA. Another unlawful influence motion is also on the docket brought by Mohammed’s lawyers. That one alleges that, since CIA Director Gina Haspel is the ultimate decider on what Black Site evidence remains classified, the trial is tainted by her previous involvement in the secret prison network.
Judge Pohl had initially agreed to a defense request to take testimony from Rishikof and Castle. He reversed himself June 21, at the request of prosecutors who said paperwork provided the defense lawyers surrounding Rishikof’s management objectives eliminated the need for live testimony.