Supreme court lets Austin veto 9/11 plea deals

By Adele Rutherford · Reporting from Atlanta · October 19, 2026

The justices left the Pentagon's withdrawal of the 2024 plea agreements intact, affirming executive authority over military commissions as the 2028 trial approaches.

Procedure is where power actually lives

The Supreme Court declined to review an appeal brought by Khalid Sheikh Mohammed, Mustafa Ahmed al-Hawsawi, and Walid bin Attash, as reported by NBC News and Axios. The order left standing an August ruling by the U.S. Court of Appeals for the District of Columbia Circuit that the defense secretary "indisputably" had the authority to cancel their 2024 plea agreements, according to WBAL-TV. That decision means the case returns to the jurisdiction of military courts. As Steve Vladeck, a CNN legal analyst and professor at Georgetown University Law Center, noted in reports covered by WBAL-TV, the practical effect is to clear the way for ongoing pretrial proceedings while a tentative trial date is set for June 5, 2028. We are left looking at a process that has dragged on since the defendants were first arraigned in 2008, after being held at the U.S. military prison at Guantánamo Bay, Cuba, since 2006.

The appellants argued that the appeals court had no authority to intervene in the case, pointing to the earlier 2024 military court ruling that found the plea agreements valid and enforceable. They sought to hold the government to those agreements, which would have traded guilty pleas for life sentences, sparing them the death penalty, as detailed by CBS News and the Pittsburgh Post-Gazette. But then-Defense Secretary Lloyd Austin rejected the proposal days after it was signed, asserting that "responsibility for such a decision should rest with me," as noted by Axios and The Guardian. The Justice Department subsequently petitioned the D.C. Circuit to find that Austin validly withdrew from the pretrial agreements. When we judge the process rather than the score, the question is not whether we like the outcome for Khalid Sheikh Mohammed, who is accused of being the ringleader of the plot to crash hijacked planes into the World Trade Center in New York and the Pentagon on Sept. 11, 2001, along with a fourth plane that crashed in a field in Pennsylvania. The question is whether an executive officer can reverse a subordinate's negotiated settlement after the fact.

The shadow of Hamdan v. United States

We have seen this movie before, during the long legal wrangling of Hamdan v. Rumsfeld (2006-2008), which challenged the legality of military commissions established by the Executive branch to try detainees at Guantanamo Bay. Both cases center on the legality and procedural validity of military commissions at Guantanamo Bay and the tension between executive authority and judicial oversight. When the Bush administration tried to bypass statutory frameworks back then, the courts stepped in to enforce the rules of the road. But here, the D.C. Circuit and now the Supreme Court have affirmed that the executive branch retained the upper-tier authority to pull back a delegated deal. The plea agreements, reached with military prosecutors after more than two years of negotiation, required the accused to plead guilty to all charges and undergo a public sentencing hearing including questions from survivors and family members of the September 11, 2001, attack. Yet Susan Escallier, appointed as the Convening Authority for military commissions in 2023, operated under a chain of command that ultimately answers to the Pentagon chief.

The strongest opposing case for the defendants rests on the principle of detrimental reliance and the finality of legal agreements entered into by authorized agents of the state. As the military judge ruled in November 2024, once the parties bargain in good faith and the convening authority signs off, the executive should not be permitted to move the goalposts simply because the political cost of the bargain becomes unpalatable. If a plea deal means nothing until the cabinet secretary personally signs it, then no prosecutor has real authority to settle a case. But this argument mistakes administrative delegation for absolute abdication. The defense secretary holds ultimate supervisory responsibility over military justice administration, and the statute does not strip the principal of the power to rescind a subordinate's act before the judgment becomes final. A rule that only works while your people hold power was never a rule. If we demand that prosecutors be strictly bound by premature deals, we invite future administrations to override bargains struck by their predecessors in routine courts-martial and civilian prosecutions alike.

The long record of delay

The historical pattern of this prosecution is defined by delay, and nothing in this latest order alters that dreary trajectory. The defendants were captured in 2003, held at secret CIA prisons and subjected to "enhanced interrogation techniques," or torture, before being moved to Guantanamo Bay in 2006. Trial delays have consistently been caused by determinations regarding the torture of individuals at CIA prisons and the admissibility of evidence obtained through torture. As Steve Vladeck observed, even the current summer 2028 trial date is entirely unrealistic given how many issues remain to be resolved. We also saw Boumediene v. Bush (2008) open the courthouse doors to habeas petitions, and we saw the Plea Agreement of the 'Benghazi' suspects (2004) test our tolerance for foreign militant adjudications, followed by United States v. Khalid Sheikh Mohammed (2017) as an earlier chapter of this same endless pretrial struggle.

Justice Brett Kavanaugh recused himself from the decision, having served as associate counsel to President George W. Bush and assisted with legal and policy discussions following the 9/11 attacks, as reported by Axios. The court offered no explanation for rejecting the appeal, adhering to its routine practice on interlocutory petitions. But by declining to step in, the high court leaves the military commission system to grapple with its own accumulated procedural wreckage. Prosecutors sought a trial date of January 2027, but a judge determined that timeline provided insufficient time to resolve pretrial issues, pushing the tentative date to June 5, 2028, where five of the charges against the defendants still carry the death penalty. We are left with a system that bends over backward to avoid procedural shortcuts, only to find itself trapped in a labyrinth of its own making.

The Supreme Court was entirely right to let the D.C. Circuit's ruling stand, because an administrative superior must retain the authority to correct or withdraw unauthorized concessions made down the chain of command, no matter how unpalatable the subsequent political fallout may be.

Supreme court lets Austin veto 9/11 plea deals

Procedure is where power actually lives

The shadow of Hamdan v. United States

The long record of delay

Sources