The Supreme Court on Monday rejected Pentagon plea deal appeals denied for Khalid Sheikh Mohammed and two alleged accomplices, leaving in place the withdrawal of plea agreements the Biden administration had revoked. The unsigned order keeps the deals off the table for Mohammed, Mustafa al Hawsawi and Walid bin 'Atash.
The three men had reached agreements with military prosecutors in 2024, and the deals were approved by Susan Escallier in 2024. Those agreements would have required guilty pleas to all charges and life sentences while avoiding the death penalty.
June 2028 trial date
Five of the charges in the military commission carry the death penalty. In August, the judge overseeing the cases set a trial date of June 2028, but that schedule depends on the parties meeting certain deadlines and milestones on time.
Mohammed, Hawsawi and Walid were captured in 2003, held at secret CIA prisons and moved to Guantanamo Bay in 2006. They were formally charged in 2008, and the long-running case has been delayed by disputes over what evidence could be used in court.
Lloyd Austin withdrawal
Then-Defense Secretary Lloyd Austin withdrew the plea agreements, and a military judge ruled in November 2024 that the nullification was unlawful. A military appeals court then said Austin could not rescind the deals because the defendants had begun to perform one of the terms.
The Justice Department asked the D.C. Circuit to find that Austin validly withdrew from the pretrial agreements, and the D.C. Circuit ruled last year that the defense secretary had the authority to withdraw from the plea deals. The panel said, "The Secretary acted within the bounds of his legal authority, and we decline to second-guess his judgment," and the Supreme Court left that ruling in place.
Justice Brett Kavanaugh
Justice Brett Kavanaugh did not participate in the court's consideration of the appeal, leaving the unsigned order to reflect the view of the remaining justices. For the defendants, the immediate result is that the revoked plea agreements stay revoked while the June 2028 trial date remains tied to deadlines and milestones that still have to be met.
Whether the June 2028 trial date will still hold if those steps slip is the open point left by Monday's order, and the case now moves forward under the withdrawal Austin imposed.
