The government has forfeited the right to seek the death penalty against the accused 9/11 mastermind, sources said

Editor's note: This article was supported by the Pulitzer Center.

Guantanamo Naval Base, Cuba – The historic attempt to impose the death penalty on Khalid Shaikh Mohammad for his role as an accused 9/11 mastermind may be in jeopardy as multiple sources report that the plea agreement he signed – which Defense Secretary Lloyd Austin has reportedly revoked – contained a poison pill , which takes the death penalty off the table if the government withdraws from the agreement without good reason.

“The death penalty is definitely off the table,” said a source familiar with the agreement.

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

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

The plea agreements are currently under seal, as are some of the legal documents establishing their enforceability amid the Pentagon's unprecedented policy change.

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

The withdrawals were a “big mistake” if Austin intended to push the case toward a death trial but instead guaranteed “exactly the opposite,” another source said. A Defense Department spokesman did not immediately respond to written questions.

The week after Austin withdrew from the deals, he told reporters that he “believes the victims' families, our military members and the American public deserve the opportunity to see trials conducted.” He did not indicate whether he wanted death sentences.

The court's convening authority, Susan Escallier, signed agreements with Mohammad, bin Attash and al Hawsawi on July 31. The agreements removed the death penalty as a sentencing option in exchange for defendants admitting their role in planning or facilitating the 9/11 attacks. The announcement of the deals sparked immediate backlash from senior politicians and some victims' family groups who firmly believe the defendants should face the death penalty for the worst-ever attacks on American soil. A group supporting the deals complained of “emotional whiplash” that could be further shaken.

Austin's brief memorandum to Escallier dated August 2 did not allege that she had acted outside her authority as convening authority in drafting the agreements, nor did it allege that he had found any deficiencies in the terms of the agreement. The New York Times reported on August 4 that Austin, who was traveling when Escallier signed the contracts, had not read the agreements before his decision to withdraw from them.

Austin instead wrote that he was revoking Escallier's authority to reach a settlement in the 9/11 case and reserving it to himself “given the importance of the decision.” He indicated that he would exercise this authority and withdraw from the three agreements.

Since that tumultuous turn of events, the three defense teams filed motions asking McCall to enforce the agreements and hear guilty pleas – as had been agreed upon before Austin's actions. Defense attorneys argue that Austin had no legal basis to revoke valid contracts signed by an official who had discretion to approve plea agreements – especially after she had already performed the role Austin had assigned to her. They have also argued that their clients began fulfilling the terms of the agreements by signing statements of fact admitting their involvement in the 9/11 conspiracy and by refusing to take part in the ongoing one to participate in the suppression hearing in connection with the defendants' confessions. This hearing is now limited to Ammar al Baluchi, a nephew of Mohammad, who was unable to reach an agreement.

The prosecution team led by Clay Trivett, meanwhile, alleges that Austin acted lawfully within his broad powers as defense secretary and as the military commissions' “supreme convening authority.” Any actions by the defense team within two days of Escallier signing the contracts did not constitute legal performance of “performance” under a plea agreement, according to the government.

Likewise, the sources did not know whether the government would claim that Austin had broad power to revoke the poison pill when it expressly intended to do the opposite. None of the dozen or so released files related to the controversial plea agreements contain any reference to a clause that would abolish the death penalty if the government withdraws or to specific provisions of the sealed documents. A source said the defense had referred to the provision in sealed filings, but the prosecution had not addressed it directly.

People familiar with the agreements said the exit clause was intended to protect future administrations from future administrations hostile to the agreements, with one source citing particular fears that a second Trump administration would try to scuttle the agreements .

McCall had initially planned to hear oral arguments on the controversial plea agreements at this ongoing hearing, which is scheduled to run from Sept. 16 to Oct. 18. However, it now appears likely that he will hear arguments – if any – at the scheduled three-week November hearing beginning on November 4, the day before the 2024 presidential election. In the first week of that hearing, McCall said he might be at the decide on the dispute based on the written pleadings.

McCall devoted the first two weeks of this hearing to testifying in favor of al Baluchi's request to suppress the confessions he made to FBI agents at Guantanamo Bay in January 2007 after years in CIA custody. These lengthy defense efforts had dominated all four defendants' cases for the past few years until the trio signed their plea agreement with Escallier on July 31, and their plea agreements remain in effect; McCall ordered that each team must have at least one attorney present as an observer at each hearing.

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

Stephan Gerhardt, whose younger brother Ralph was killed in the North Tower of the World Trade Center on September 11, attended the first week of this session hoping to hear oral arguments on the plea deals. He said by phone this week that he was “not thrilled” with the plea agreements because the death penalty was “justified” for the Sept. 11 crimes.

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

The plea agreements, if ever finalized, will culminate in a lengthy sentencing process in which defendants must admit their crimes. The defendants have also agreed to answer questions from the victim's family members. Gerhardt said a conviction of the 9/11 defendants was preferable to the uncertainty of a pretrial trial that could drag on for many years and may never result in a trial.

“I don’t want to see the eternal process,” he said.

About the author: John Ryan ([email protected]) is co-founder and editor-in-chief of Lawdragon Inc., where he oversees all web and magazine content and regularly reports on the military commissions at Guantanamo Bay. When he's not at GTMO, John lives in Brooklyn. He has been reporting on complex legal issues for 20 years and has won several awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the September 11 case. His book on the 9/11 case is scheduled to be published early next year.