Supreme Court Rejects 9/11 Plea Deal Appeal, Khalid Sheikh Mohammed Can Still Face the Death Penalty

On October 19, 2026, the U.S. Supreme Court declined to hear appeals from Khalid Sheikh Mohammed and co-defendants who wanted to restore 2024 plea agreements in the September 11 attacks case. Those agreements would have meant guilty pleas in exchange for life sentences without parole and a promise that prosecutors would not seek the death penalty.

The Court did not issue a written opinion and did not decide whether the defendants are guilty. It simply refused to review the D.C. Circuit’s July 2025 ruling, which held that then-Defense Secretary Lloyd Austin could withdraw the government from the agreements. That ruling now stands.

Bottom line: The 2024 plea deals are not restored, the death penalty is again legally possible if the defendants are convicted of eligible charges and the government seeks it, and the military-commission trial of four defendants is scheduled to begin June 5, 2028, at Guantanamo Bay, Cuba.

Quick Facts: The Supreme Court’s 9/11 Plea-Deal Decision

Issue	What the records show
Date of Supreme Court action	October 19, 2026
Type of action	Petitions for a writ of certiorari denied (no opinion, no explanation)
Main case	Khalid Shaikh Mohammad, et al. v. United States, No. 26-13
Related case	Walid bin ‘Atash v. United States, No. 25-1335
Lower-court ruling under review	In re United States of America, No. 25-1009 (D.C. Cir. July 11, 2025), decided 2–1
Rehearing	Denied by the D.C. Circuit on January 6, 2026
Petitioners	Khalid Sheikh Mohammed, Walid bin ‘Atash, Mustafa al-Hawsawi
Respondent	United States
Dispute	Whether the Defense Secretary could withdraw from 2024 pretrial (plea) agreements
Plea-deal terms	Guilty pleas; no death penalty; life without parole
Did the Court decide guilt?	No
Death penalty possible?	Yes, under eligible charges, if the government seeks it
Trial court	Military commission, Guantanamo Bay, Cuba
Scheduled trial start	June 5, 2028 (four defendants)

What the Supreme Court Actually Did

The Court denied certiorari. A petition for a writ of certiorari is a request that the Supreme Court review a lower court’s decision under its discretionary jurisdiction (28 U.S.C. § 1254(1); Supreme Court Rule 10). The Court takes only a small fraction of the petitions it receives.

This distinction matters, and many headlines blur it:

• A denial is not an affirmance. The Court did not “uphold” or “approve” the D.C. Circuit’s reasoning. It chose not to review it.
• A denial is not a ruling on the merits. It sets no new Supreme Court precedent on a Defense Secretary’s authority.
• A denial is not “an emergency appeal turned away.” These were regular certiorari petitions, not emergency applications.
• The practical result is the same for the defendants: the D.C. Circuit decision remains in force and the agreements are not revived.

The docket for the main case also notes that Justice Brett Kavanaugh did not participate in considering that petition. No reason is given.

Who Are the Defendants?

All are detained at Guantanamo Bay and charged before a military commission. These are allegations, not findings.

• Khalid Sheikh Mohammed: Described by prosecutors as the principal architect and operational leader of the 9/11 plot.
• Walid bin ‘Atash: Alleged to have helped with the plot, including gathering information on airport and airplane security.
• Mustafa al-Hawsawi: Alleged to have helped facilitate the hijackers’ travel and funding.
• Ali Abdul Aziz Ali (Ammar al-Baluchi): Did not sign a plea agreement and was not a petitioner, but is scheduled for the 2028 trial alongside the others.
• Ramzi bin al-Shibh: Originally charged in the same case but found unfit to stand trial in 2023; not among the four scheduled for 2028.

What the 2024 Plea Agreements Said

Negotiations began in 2023 and concluded in July 2024. Retired Brig. Gen. Susan Escallier, serving as Convening Authority for Military Commissions, had authorized the talks. Mohammed and bin ‘Atash submitted signed offers on July 29, 2024, al-Hawsawi on July 30, and Escallier signed the agreements for the United States on July 31, 2024.

Key terms:

• Guilty pleas to the charges.
• The government would not seek the death penalty.
• Sentences of life imprisonment without parole.
• Signed factual stipulations, and agreement that summaries of certain FBI interviews could be used for guilt and sentencing.
• A public sentencing proceeding where victims’ relatives could address the defendants and ask questions, with truthful answers expected.

The deals offered no release. No pleas had been entered when the government withdrew.

Related article: Elon Musk Dogecoin Lawsuit, $258 Billion Case Against Musk and Tesla Dismissed, Appeal Withdrawn and What Investors Can Do

Why Lloyd Austin Withdrew the Agreements

On August 2, 2024, Secretary Austin issued a memorandum withdrawing from the agreements and reserving to himself the authority to enter pretrial agreements in these cases. His stated reasoning was that, given the gravity of 9/11, a decision to take the death penalty off the table should be made by the Secretary as the superior convening authority, not a subordinate.

The agreements had drawn sharp criticism from Republican lawmakers and some victims’ relatives. Other families supported a negotiated end to decades of delay. Families were divided.

How the Case Reached the Supreme Court

1. November 6, 2024 – Military judge: Ruled that Austin could not undo the agreements, finding among other things that the defendants had already begun performing their promises.
2. December 2024 – Court of Military Commission Review (CMCR): Agreed with the military judge’s conclusion (CMCR review exists under 10 U.S.C. § 950f).
3. 2025 – Government seeks mandamus: The Justice Department asked the D.C. Circuit to intervene using extraordinary-writ power (the All Writs Act, 28 U.S.C. § 1651(a)).
4. July 11, 2025 – D.C. Circuit (2–1): Judges Millett and Rao in the majority, Judge Wilkins dissenting in part. The court vacated the military judge’s order, held that Austin had authority to withdraw, and concluded the defendants had not begun the kind of “performance” that would block withdrawal.
5. January 6, 2026: Rehearing denied.
6. June 5, 2026: Certiorari petition filed after the Chief Justice extended the filing deadline.
7. August 2026: The Solicitor General opposed review; amicus briefs were filed, including one by September Eleventh Families for Peaceful Tomorrows and other relatives supporting review.
8. October 19, 2026: Review denied.

The defense argued, among other things, that the D.C. Circuit used mandamus to give the government an appeal Congress had not authorized. The government argued the military judge had disregarded the Secretary’s authority in prosecutions of paramount national significance. The Supreme Court did not resolve that dispute in a written opinion.

The Laws and Rules Behind This Case

Law or rule	Why it matters here
Military Commissions Act of 2009, 10 U.S.C. § 948a et seq.	The statute creating the commission system that now governs these prosecutions.
10 U.S.C. § 948h and related provisions	Commissions are convened by the Secretary of Defense or a designated convening authority. This was central to whether Austin could override Escallier.
Rule for Military Commissions (R.M.C.) 705 (pretrial agreements), including R.M.C. 705(d)(4)(B)	Generally allows withdrawal from an agreement before the accused begins performance of promises in it. The “performance” question decided the D.C. Circuit case.
10 U.S.C. § 950t	Defines the offenses triable by military commission (including murder in violation of the law of war, attacking civilians, terrorism, and conspiracy).
10 U.S.C. §§ 948m and 949m	Rules on commission membership and voting; a death sentence requires heightened safeguards, including a unanimous vote of members and a larger panel in capital cases.
10 U.S.C. § 950f	Establishes the Court of Military Commission Review.
10 U.S.C. § 950g	Gives the D.C. Circuit review of final commission judgments.
10 U.S.C. § 950i	A death sentence cannot be carried out unless approved by the President.
28 U.S.C. § 1651(a) (All Writs Act)	Source of mandamus authority the D.C. Circuit used.
28 U.S.C. § 1254(1) and Supreme Court Rule 10	Govern Supreme Court certiorari review and the Court’s discretion to deny it.

Section numbers above are provided for orientation. Readers needing exact current statutory text should consult the official U.S. Code and the Manual for Military Commissions.

Can the Defendants Still Face the Death Penalty?

Yes, but it is not automatic. The agreements would have removed capital punishment. With them unenforceable, the death penalty is legally available for eligible charges. The D.C. Circuit opinion describes seven law-of-war offenses charged against the three plea-deal defendants, five of which carry a possible death sentence.

To reach a death sentence, the government would need to:

1. Prove guilt before a commission panel.
2. Seek capital punishment and satisfy the sentencing procedures, including the unanimity and panel-size safeguards for capital cases.
3. Survive post-trial review by the CMCR, the D.C. Circuit, and potentially the Supreme Court.
4. Obtain presidential approval of any death sentence.

The Supreme Court’s denial does not guarantee a conviction or a death sentence.

The June 5, 2028 Trial Date

On August 27, 2026, the military judge set the trial of four defendants (Mohammed, bin ‘Atash, al-Hawsawi and al-Baluchi) for June 5, 2028. The judge rejected prosecutors’ request for a January 2027 start, citing unresolved pretrial evidence and compliance issues.

As reported, the schedule runs roughly as follows: select the military panel, open statements about 30 days after the panel is seated, then prosecution evidence, with defense evidence starting about 60 days after the prosecution rests, followed by sentencing if needed. The date may still shift.

Why the Case Has Taken So Long

• CIA detention and interrogation: The defendants were held in secret CIA facilities before transfer to Guantanamo in 2006 and were subjected to “enhanced interrogation techniques” widely described as torture. This created major disputes over which statements can lawfully be used.
• Evidence rulings: Pretrial litigation continues over the admissibility of evidence, including statements tied to earlier interrogation.
• Unusual forum: In 2009 a federal indictment was returned; in 2011 the Justice Department dismissed it and referred the cases to military commissions after Congress restricted bringing Guantanamo detainees to U.S. courts for trial.

The October 19 denial did not decide the admissibility of any evidence.

What the Denial Means and Does Not Mean

It means:

• The Supreme Court will not review these petitions.
• The D.C. Circuit ruling allowing Austin’s withdrawal stays in effect.
• The 2024 agreements are not restored through this route.
• The prosecution proceeds without the negotiated death-penalty protection.

It does not mean:

• The defendants have been convicted or sentenced.
• The Supreme Court wrote an opinion approving the D.C. Circuit’s reasoning.
• All future appeals are barred. Legally available challenges can still be raised during the trial and after any final judgment.

For a related example of the difference between asking the Supreme Court to act and winning on the merits, see our report on Donald Trump’s petition to revive his dismissed 2016 election lawsuit. For a separate military-justice process, see Is It Legal to Livestream Nidal Hasan’s Execution?. Both involve different defendants and legal frameworks.

Timeline: 2001 to 2028

Date	Event
September 11, 2001	Al-Qaeda attacks kill nearly 3,000 people.
2006	Defendants transferred to Guantanamo Bay from CIA custody.
2009	Federal indictment returned; Military Commissions Act of 2009 enacted.
April 2011	Federal indictment dismissed; cases referred to military commissions.
2023	Plea negotiations authorized.
July 29–31, 2024	Offers submitted; agreements signed by the Convening Authority.
August 2, 2024	Austin withdraws the government from the agreements.
November 6, 2024	Military judge blocks the withdrawal.
December 2024	CMCR agrees with the military judge.
July 11, 2025	D.C. Circuit rules 2–1 for the government.
January 6, 2026	D.C. Circuit denies rehearing.
June 5, 2026	Certiorari petition filed.
August 27, 2026	Trial set for June 5, 2028.
October 19, 2026	Supreme Court denies review.

Frequently Asked Questions

Did the Supreme Court throw out the 9/11 plea deals?

No. It declined to review the D.C. Circuit’s decision. The D.C. Circuit is the court that held the government could withdraw, so the deals remain unenforceable.

Is a Supreme Court denial the same as the Court agreeing with the lower court?

No. A certiorari denial is not a ruling on the merits and does not endorse the lower court’s reasoning.

Does this prove Khalid Sheikh Mohammed is guilty?

No. The case concerned the status of the plea agreements, not guilt. The charges remain allegations until resolved in the military commission.

What did the 2024 plea agreements promise?

Guilty pleas, life sentences without parole, no death penalty, factual stipulations, and a public sentencing proceeding with victims’ families able to ask questions.

Why did Lloyd Austin cancel them?

He said a decision to forgo the death penalty for 9/11 should be made by him as the superior convening authority, and he withdrew on August 2, 2024.

Why did the D.C. Circuit allow the withdrawal?

The majority held that the Secretary had authority to withdraw and that the defendants had not begun the performance that, under R.M.C. 705, bars withdrawal. Judge Wilkins dissented in part.

Can the defendants be sentenced to death?

Yes, if convicted of capital-eligible charges and the government seeks it, but only after trial, unanimity requirements for capital sentences, appellate review, and presidential approval.

Is the 2028 trial date guaranteed?

No. It is the date set by the military judge and may change with pretrial disputes.

Does the denial end all appeals?

No. It ends this petition for review. Other legally available challenges can arise later.

Why isn’t Ramzi bin al-Shibh in the 2028 trial?

He was found unfit to stand trial in 2023.

Can victims or families file a claim for compensation in this case?

No. This is a criminal prosecution before a military commission, not a class action or claims-based settlement, so there is no claim form or filing deadline.

Sources

1. U.S. Supreme Court docket, Khalid Shaikh Mohammad, et al. v. United States, No. 26-13: https://www.supremecourt.gov/docket/docketfiles/html/public/26-13.html
2. U.S. Supreme Court docket, Walid bin ‘Atash v. United States, No. 25-1335: https://www.supremecourt.gov/docket/docketfiles/html/public/25-1335.html
3. U.S. Supreme Court docket, Application No. 25A1072 (time extension): https://www.supremecourt.gov/docket/docketfiles/html/public/25A1072.html
4. D.C. Circuit, In re United States of America, No. 25-1009 (July 11, 2025): https://media.cadc.uscourts.gov/opinions/docs/2025/07/25-1009-2124903.pdf
5. U.S. Department of Defense, “Secretary Austin Signs Memo Withdrawing From the Pre-Trial Agreements in the 9/11 Military Commission Cases” (Aug. 2, 2024): https://www.defense.gov/News/Releases/Release/Article/3860710/secretary-austin-signs-memo-withdrawing-from-the-pre-trial-agreements-in-the-91/
6. U.S. Department of Justice, “Justice Department Refers Five Accused 9/11 Plotters to Military Commissions” (Apr. 4, 2011): https://www.justice.gov/archives/opa/pr/justice-department-refers-five-accused-911-plotters-military-commissions
7. Reuters, “Trial for accused mastermind of 9/11 attacks set for June 2028” (Aug. 27, 2026): https://www.reuters.com/legal/litigation/trial-accused-mastermind-911-attacks-set-june-2028-2026-08-27/
8. Associated Press, “Supreme Court rejects effort to revive Khalid Sheikh Mohammed plea deal” (Oct. 19, 2026): https://apnews.com/article/sept-11-guantanamo-plea-deal-mohammed-824102b1eee6ced225e56d54ff230acb
9. Military Commissions Act of 2009, 10 U.S.C. § 948a et seq.: https://uscode.house.gov
10. Manual for Military Commissions, Rules for Military Commissions: https://www.mc.mil

Disclaimer: This article is for general informational and educational purposes only and is not legal advice. The defendants’ charges remain allegations unless and until resolved through the legal process. AllAboutLawyer.com is an informational legal news website, not a law firm. Statutory references are summarized for orientation; consult the official text or a licensed attorney for advice on a specific legal matter.

Researched and written by Israr Ahmad, Legal Content Researcher. Last updated October 19, 2026.