Supreme Court turns away appeal from alleged 9/11 mastermind

Washington — The Supreme Court on Monday rebuffed a bid from accused Sept. 11 mastermind Khalid Sheikh Mohammed and two alleged accomplices to revive plea agreements that they reached with military prosecutors before being revoked by the Biden administration.

In an unsigned order, the high court turned away the appeals from Mohammed, Mustafa al Hawsawi and Walid bin 'Atash of a lower court decision that prevented a military judge from enforcing pretrial agreements they reached with military prosecutors in 2024, which were withdrawn by then-Defense Secretary Lloyd Austin.

In rejecting their case, the government's withdrawal of the plea deals remains in place. Justice Brett Kavanaugh did not participate in the court's consideration of the appeal.

Mohammed, Hawsawi and bin 'Atash, were captured in 2003 and charged before a military commission with several crimes for their alleged roles in crafting and perpetrating the Sept. 11 attacks, five of which carry the death penalty. In August, the judge overseeing their cases set a trial date of June 2028, which depends on the parties meeting certain deadlines and milestones on time.

The prosecutions have been mired in lengthy legal delays over whether evidence extracted during their interrogations could be used in court. The defendants were held at secret CIA prisons, where they were subjected to "enhanced interrogation techniques," or torture, before they were moved to Guantanamo Bay in 2006. They were formally charged in 2008.

In 2023, following the appointment of retired Brigadier General Susan Escallier as the Convening Authority for military commissions, military lawyers began discussing plea deals with the defendants. Agreements were subsequently reached in 2024 and approved by Escallier, who oversees the military court at Guantanamo Bay.

Under the terms of the deals, the defendants would plead guilty to all charges arising from their alleged roles in the 9/11 terror attacks and serve life sentences, avoiding the death penalty. But shortly after the agreements were announced, Austin said he was revoking them. 

But a military judge ruled in November 2024 that Austin's nullification of the deals was unlawful, rendering the agreements valid and enforceable. A military appeals court then said Austin couldn't rescind the plea deals because the defendants had begun to perform one of the terms. 

The Justice Department then asked the D.C. Circuit to step in and find that Austin validly withdrew from the pretrial agreements. The D.C. Circuit sided with the government in a decision last year and ruled that the defense secretary "indisputably" had the authority to withdraw from the plea deals.  

"The Secretary acted within the bounds of his legal authority, and we decline to second-guess his judgment," the D.C. Circuit panel found.