The Atlanta Journal-Constitution
Sessions objected to 9/11 deal for guilty pleas, no executions
Mattis fired civilian overseer pursuing resolution of case.
GUANTANAMO BAY NAVAL BASE, CUBA — Attorney General Jeff Sessions called Secretary of Defense Jim Mattis in October to protest exploratory talk about a plea deal in the 9/11 case that would have taken the death pen- alty 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 arraign- ment of alleged plot master- mind Khalid Sheikh Moham- med and four alleged accomplices.
Nearly 3,000 people died on Sept. 11, 2001, when 19 men seized four commer- cial airliners and crashed them into the World Trade Center, the 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.
Now, defense attorneys argue that Trump administration meddling in the guiltyplea 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 testimony in open court from Sessions, Mattis and Castle, military justice expert Eugene Fidell said.
“There’s certainly enough there that a thorough eviden- tiary 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 foster- ing 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 behindthe-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, Dep- uty 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.
The Guantanamo war court judiciary is meant to be inde- pendent of politics. Mattis appointed Rishikof, a civil- ian 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.
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 “long-standing 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 Guantanamo not a Supermax federal prison in the United States.