Death Penalty May Be Off Table for 9/11 Suspect No Matter How Case Unfolds

The government is trying to cancel a plea deal for Khalid Shaikh Mohammed, accused of masterminding the attacks. But a clause in the agreement may stop prosecutors from reinstating a capital case.

A military judge has yet to decide whether Defense Secretary Lloyd B. Austin III successfully canceled a plea agreement in the Sept. 11 terrorism case. But, even if Mr. Austin did, a clause in the deal may mean the government can no longer seek the death penalty in a trial of Khalid Shaikh Mohammed, accused of being the mastermind of the attacks.

Mr. Mohammed’s 20-page plea agreement is under seal at the court. But five people with knowledge of its contents described the breach of contract clause on the condition they not be identified because of the sealing order. It says if the government withdraws from the deal and the defendants have not violated their side of it, any future trial takes the death penalty off the table.

One called the bailout clause “a poison pill.”

The disclosure is the latest development to inject uncertainty into the future of the long-running military case at Guantánamo Bay that accuses Mr. Mohammed and four other prisoners there of helping to orchestrate the hijackings that killed nearly 3,000 people on Sept. 11, 2001.

The case had appeared to be partially settled on July 31, when the Defense Department announced in a two-paragraph statement that a senior Pentagon official, Susan K. Escallier, had reached plea deals with Mr. Mohammed and two other defendants in the case in her role as overseer of the war court. They would plead guilty to their roles in the attacks in exchange for life sentences rather than face a death-penalty trial.

Two days later, Mr. Austin stripped Ms. Escallier, his appointee, of the authority to reach a deal, citing “the significance of the decision to enter into pretrial agreements.” In the same brief memo, he announced that he was withdrawing from the agreements.

He later elaborated that he believed the case should go to trial but made no mention of whether it needed to be a capital punishment case.

Defense lawyers argued that Mr. Austin acted too late, and that Ms. Escallier was fully empowered to enter into the agreement when she did. They have petitioned the case judge, Col. Matthew N. McCall, to enforce the contract and move forward with questioning Mr. Mohammed and the others one by one about the plea deal.

Prosecutors argue that since Mr. Austin delegated that authority to Ms. Escallier, he had the power to take it away and put the case back on course for a trial.

Two of the defendants — Mr. Mohammed and Mustafa al-Hawsawi — have the no-capital-trial provision included in their plea agreements, but apparently not Walid bin Attash, the third defendant to have made a deal. Another Sept. 11 defendant, Ammar al-Baluchi, has no plea agreement, and his case remains capital. The fifth defendant, Ramzi bin al-Shibh, has been found mentally incompetent, and so cannot currently be put on trial or sign a plea agreement.

Colonel McCall, the judge, said in court this week that he may be able to decide the question of whether the plea deals are still valid “as a matter of law,” without hearing the lawyers argue their positions. First, he said, he wants to hear arguments on Oct. 11 on a petition by seven news media organizations, led by The New York Times, that seeks to let the public read the plea agreements.

In them, Mr. Mohammed, Mr. bin Attash and Mr. Hawsawi agreed to provide detailed admissions to their roles in the attacks in exchange for a maximum of sentence of life without the possibility of parole.

A military jury would be empaneled to hear the evidence and decide a sentence. Mr. Mohammed’s deal gives the panel a range to deliberate, which starts at 2,976 years — one for each of the named victims on the charge sheet — and extends past 4,000 years, according to two people with knowledge of the deal.

Mr. Austin was overseas at the time the deal was reached and had not read it before withdrawing from it. A Pentagon official declined to comment on Friday on whether the secretary knew about the penalty clause.

The rapid developments have unsettled relatives of victims of the Sept. 11 attacks, who have been sharply divided over whether the government should seek a capital trial, no matter how long it takes. One lawyer worried that, if the clause is invoked, and a noncapital trial is held, “the pain will go on” for family members who think only the death penalty will bring justice.

Stephan Gerhardt, whose brother Ralph was killed in the attack on the World Trade Center, said prosecutors had not told the Sept. 11 families about the clause. But he said he was not surprised that it was included in the pretrial agreements, or P.T.A.s, because business contracts routinely have such penalty clauses.

Mr. Gerhardt runs a business in the hospitality industry near Washington, D.C. His brother was a bond trader in New York City.

“I’m not excited by the P.T.A.s,” he said after a recent visit to observe the proceedings at Guantánamo Bay. “But they were a logical, sensible solution to the quagmire that we were in. I do feel that the death penalty is warranted in this situation. But I don’t want to see a forever trial.”

Two people with knowledge of the clause said lawyers who negotiated the deal did not draft it envisioning Mr. Austin overruling Ms. Escallier, whom he had appointed to the role of war court overseer. Negotiations had been underway in the case since March 2022, and prosecutors had announced in court in May that they were continuing.

Rather, the concern was that, after the court accepted the pleas, a future Trump administration would try to undo them. Nobody anticipated an attempt to reverse it so soon.