U.S. Supreme Court rejects bid by 9/11 mastermind Khalid Shaikh Mohammad to revive plea deal sparing him death penalty

WASHINGTON

The U.S. Supreme Court on Oct. 19 (local time) declined to take up petitions seeking to revive plea agreements that would have spared Khalid Shaikh Mohammad, charged as the mastermind of the Sept. 11 attacks, from the death penalty. In an order list released that day, the court denied both the petition filed jointly by Mohammad and Mustafa Ahmed Adam al-Hawsawi (26-13) and the petition filed separately by Walid bin 'Attash (25-1335). That leaves in place a ruling by the U.S. Court of Appeals for the D.C. Circuit that then-Defense Secretary Lloyd Austin lawfully withdrew, in August 2024, the agreements the military commissions' convening authority had reached with the three men. The Guantanamo military commission case will continue with prosecutors able to seek the death penalty.

Court denies petitions by Mohammad and al-Hawsawi and by bin 'Attash together

The two cases appeared side by side under "CERTIORARI DENIED" in the court's Oct. 19 order list. The entry for the Mohammad case carried the words "The petition for a writ of certiorari is denied" along with the note "Justice Kavanaugh took no part in the consideration or decision of this petition." The bin 'Attash case carried no such note. The court gave no reasons for the denials. Neither entry noted any dissent.

Kavanaugh also did not participate on June 29, when the court granted Mohammad's motion to file part of an appendix under seal. The docket does not state why he did not participate.

Consideration of the two petitions was postponed twice. According to the docket, the two cases were distributed for the Sept. 28 private conference before being rescheduled, then distributed again for the Oct. 9 conference and postponed again. They were distributed once more for the Oct. 16 conference and denied on Oct. 19.

Mohammad and al-Hawsawi are represented by Michel Paradis of the law firm Steptoe. Bin 'Attash is represented by Xiao Wang of the University of Virginia School of Law's Supreme Court Litigation Clinic. For the government, Solicitor General D. John Sauer of the Justice Department filed the brief in opposition.

Agreements provided guilty pleas to all charges in exchange for dropping death penalty

According to the D.C. Circuit's opinion, the Sept. 11 attacks "killed 2,976 people." According to the petition filed by Mohammad and al-Hawsawi, the two were captured in March 2003 and held incommunicado at secret Central Intelligence Agency (CIA) sites for about three and a half years. They were transferred to Guantanamo in September 2006 and arraigned before the military commission on June 5, 2008.

The government initiated plea negotiations in March 2022. The bin 'Attash petition said the negotiations lasted "27 months." The three defendants signed the agreements and stipulations of fact admitting the crimes on July 29 and 30, 2024. The convening authority for military commissions, retired Army Brig. Gen. Susan Escallier, accepted the agreements on July 31.

According to the appeals court's opinion, the defendants agreed to plead guilty to "all charges and specifications." In return, the government agreed not to seek the death penalty. The defendants agreed to answer questions from victims' families at a public sentencing hearing, waive all waivable motions and withdraw pending motions. They also waived the appeal automatically referred to the U.S. Court of Military Commission Review. Sentences were to be determined by members of the commission, who serve in a role akin to a jury.

The bin 'Attash petition said the agreements also included provisions that the defendants would not obtain financial or material benefit from their crimes, would not join damages claims against the United States, and would not support hostilities against the United States. Co-defendant Ali Abdul Aziz Ali (al-Baluchi) in the same case did not reach an agreement.

Then-Defense Secretary Austin ordered withdrawal two days after agreements were approved

Then-Defense Secretary Lloyd Austin withdrew the agreements in a memorandum to convening authority Escallier on Aug. 2, 2024. In the memorandum, quoted in the appeals court's opinion, Austin said that "in light of the significance of the decision to enter into pre-trial agreements," the "responsibility for such a decision should rest with me as the superior convening authority." Austin withdrew the authority to enter into agreements he had delegated to the convening authority and withdrew from the agreements.

The issue was timing. Rule for Military Commissions (R.M.C.) 705(d)(4)(B) provides that the convening authority may withdraw from an agreement "at any time before the accused begins performance of promises contained in the agreement." The defense argued that signing the stipulations of fact, agreeing to supplementary Letterhead Memoranda and not cross-examining a witness at the Aug. 1 hearing all constituted the beginning of performance. The government countered that performance had not begun at the time of the withdrawal.

According to the Justice Department's brief, the Military Commissions Act (10 U.S.C. 948h) defines the convening authority as "the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose." Section 949a(a) of the same law gives the defense secretary broad authority to prescribe pretrial, trial and post-trial procedures. The brief noted in a footnote that the current secretary also uses the title "Secretary of War."

Military judge and review court concluded withdrawal came too late

Air Force Col. Matthew McCall, the military commission judge presiding at the trial level, ruled for the defense on Nov. 6, 2024. McCall said in his ruling that he could find no legal basis allowing the defense secretary to "withdraw" convening authority Escallier's authority. McCall found that even if the secretary had such authority, "the Secretary's new power would only be effective prospectively, not retroactively."

McCall found that "Mr. Mohammad, Mr. bin 'Attash, and Mr. Hawsawi all began performance." The ruling concluded that "the three PTAs remain valid and are enforceable" and said a hearing would be scheduled for entry of the guilty pleas.

The U.S. Court of Military Commission Review (CMCR) upheld McCall's ruling on Dec. 30, 2024. Professor Vladeck's amicus brief said the review court upheld the ruling unanimously. The government petitioned the D.C. Circuit for a writ of mandamus. The appeals court temporarily stayed the lower-court proceedings on Jan. 9, 2025, and heard oral arguments on Jan. 28.

Federal appeals court rules 2-1 that defense secretary's withdrawal was lawful

The appeals court granted the government's petition on July 11, 2025. Judges Millett and Rao jointly wrote the majority opinion, and Judge Wilkins concurred in part and dissented in part. The majority said the Military Commissions Act establishes the defense secretary as "the superior convening authority." The majority held that "The Secretary's power to delegate his convening authority in part necessarily includes the power to withdraw a delegation in part."

The majority rejected one by one the evidence of performance put forward by the defense. It found that a promise not to cross-examine witnesses "appears nowhere in the agreements' text." On leaving motions in place, it said "silent inaction is not performance of that promise." It found that the stipulations of fact could not be a basis for performance because they were signed before the agreements were formed. The appeals court vacated McCall's Nov. 6, 2024, ruling and barred the military commission from holding plea hearings under the withdrawn agreements. The majority said the prosecution must proceed "according to the Secretary's best judgment."

Wilkins wrote in dissent: "The accused clearly and indisputably began performance of at least three of the many promises they made." Wilkins said: "The government has not come within a country mile of proving clearly and indisputably that the Military Judge erred."

According to military commission prosecutors, the appeals court provided for the stay of lower-court proceedings to lift after 21 days, and the ruling took effect on Aug. 1, 2025, when the stay ended.