The Supreme Court on Monday declined to revive plea agreements for Khalid Sheikh Mohammed and two other defendants accused in the Sept. 11 attacks, leaving them exposed to the death penalty in their military prosecutions. The Oct. 19 order leaves intact a lower-court decision allowing former Defense Secretary Lloyd Austin to withdraw agreements reached in 2024.
The action affects Mohammed, Mustafa al Hawsawi and Walid bin 'Atash, whose agreements would have exchanged guilty pleas for protection from execution. It removes their current Supreme Court bid to enforce those agreements, not the requirement that the government prove its case. The justices issued no opinion explaining the denials, and Justice Brett Kavanaugh did not participate in Mohammed and Hawsawi’s petition.
What the justices decided
The order lists bin 'Atash’s separate petition among those denied and separately rejects the petition brought by Mohammed and Hawsawi. CBS News independently confirmed that the withdrawal of all three agreements remains in place. Neither entry resolves the criminal charges or imposes a sentence.
The distinction matters because this litigation concerned whether a military judge could enforce negotiated pretrial agreements. Monday’s action leaves the D.C. Circuit’s result undisturbed rather than supplying a new Supreme Court analysis of the military rules. It does not itself bring the long-running prosecution to trial.
Agreements canceled within two days
The government’s filing describes how retired Brig. Gen. Susan Escallier, the military commissions’ convening authority, accepted the agreements on July 31, 2024. Austin reclaimed authority over pretrial agreements and withdrew from them on Aug. 2. The defendants challenged that withdrawal, arguing that they had already begun fulfilling their promises.
A military judge accepted their position, and the military appeals court also refused to give effect to Austin’s withdrawal. But a divided D.C. Circuit panel intervened in July 2025, permitting the cancellation and barring proceedings under the withdrawn agreements. The dispute turned partly on whether steps already taken by the defendants amounted to performance that prevented the government from backing out.
Two competing views of judicial authority
In their Supreme Court petition, Mohammed and Hawsawi also challenged the federal appeals court’s power to intervene before a final military judgment. They argued that the government used an extraordinary judicial remedy, known as mandamus, to bypass statutory restrictions on appeals. Their lawyers presented the agreements as a route toward accountability and finality after years of litigation.
Solicitor General D. John Sauer’s opposing brief defended the D.C. Circuit’s authority and said the demanding requirements for that remedy were satisfied. The government argued that intervention protected the defense secretary’s lawful control over the prosecution. Those opposing positions explain the legal stakes; Monday’s unexplained denials do not identify which arguments persuaded the justices to decline review.
A prosecution still awaiting trial
The military case has survived repeated attempts to establish a path to judgment. In April 2011, the Justice Department announced that it was abandoning the planned civilian prosecution of five accused Sept. 11 plotters and referring their cases for military commissions. The department said congressional restrictions prevented it from bringing Guantanamo detainees to trial in the United States.
The immediate next stage remains military proceedings, not implementation of the canceled bargains. A military judge set a June 2028 trial date in August, according to Reuters. The scheduling order assumes completion of pretrial deadlines and does not guarantee that timetable. Monday’s order therefore closes this appeal over the plea agreements while leaving the central task unresolved: a trial or another lawful resolution of the charges arising from attacks that killed nearly 3,000 people.
