Khalid Sheikh Mohammed Plea Deal: Torture, Delay and Fair Trial Law

Introduction

The Khalid Sheikh Mohammed plea deal will not be reinstated following the United States Supreme Court's October 19, 2026, refusal to review a federal appellate ruling that permitted the government to withdraw the agreements. Mohammed and two other defendants accused of participating in the September 11, 2001, terrorist attacks had negotiated guilty pleas in exchange for removing the possibility of capital punishment. The Supreme Court's decision leaves those agreements withdrawn, with the prosecution scheduled to proceed toward trial before a military commission in June 2028 (Khalid Shaikh Mohammad et al. v. United States, 2026).

The decision did not establish the defendants' guilt or determine whether the government acted lawfully in every aspect of the plea negotiations. By denying certiorari, the Supreme Court declined to examine the merits of the challenge, leaving the July 2025 judgment of the U.S. Court of Appeals for the District of Columbia Circuit in force. That judgment held that the Secretary of Defense possessed authority to withdraw the agreements before the defendants began performing their contractual promises (In re United States, 2025).

The failed negotiations return attention to a prosecution affected by more than two decades of detention, disputed interrogation evidence, and repeated procedural challenges. Between April 2025 and October 2026, military judges suppressed FBI statements obtained from all four defendants following their detention in CIA custody. The latest rulings deepen the difficulties confronting prosecutors, who must establish criminal responsibility through admissible evidence while complying with the procedural protections governing capital military commissions.

1. The Supreme Court's October 2026 Refusal

On October 19, 2026, the Supreme Court denied the petition for a writ of certiorari in Khalid Shaikh Mohammad et al. v. United States, No. 26-13. The petition had been filed by Mohammed, Walid Muhammad Salih Mubarak bin 'Atash, and Mustafa Ahmed Adam al Hawsawi, challenging the federal appellate decision that permitted the government to withdraw its negotiated pretrial agreements. The Supreme Court's order contained no substantive explanation. Justice Brett Kavanaugh did not participate in its consideration or decision (U.S. Supreme Court, 2026).

A denial of certiorari has a limited legal effect. It means that the Supreme Court has declined to undertake discretionary review of the questions presented. It does not constitute an affirmation on the merits or establish that the Court agrees with every part of the lower court's reasoning. The operative legal determination remains the D.C. Circuit's July 11, 2025, judgment, which authorized the government's withdrawal under the circumstances established in the appellate record.

The result leaves the defendants exposed to the penalties authorized for their alleged offenses, including death. No capital sentence has been imposed in these proceedings, and the withdrawn arrangements did not produce accepted guilty pleas or final convictions. Prosecutors must still establish criminal responsibility through the procedures governing military commissions, subject to applicable evidentiary requirements and subsequent judicial review.

The Supreme Court's order did not decide whether CIA interrogation practices affected the admissibility of particular statements or whether the prolonged proceedings satisfy every applicable fair-trial guarantee. Those questions belong to separate litigation within the criminal prosecution. The Court's refusal to hear the appeal resolves the immediate attempt to reinstate the agreements but leaves the underlying charges and their eventual disposition unresolved.

2. The 2024 Khalid Sheikh Mohammed Plea Deal

The disputed arrangements developed from negotiations conducted between October 2023 and July 2024. Retired Brigadier General Susan Escallier, appointed convening authority for military commissions by Defense Secretary Lloyd Austin in August 2023, authorized prosecutors to pursue potential agreements. Mohammed, bin 'Atash, and al Hawsawi submitted signed offers on July 29 and 30, 2024. Escallier accepted them on July 31 (In re United States, 2025).

The defendants faced charges arising from the September 11 attacks, including murder in violation of the law of war, terrorism, conspiracy, hijacking or hazarding aircraft, and attacks against civilians and civilian objects. Prosecutors allege that Mohammed played a central role in organizing the operation involving four hijacked passenger aircraft. These allegations remain the subject of criminal proceedings, notwithstanding the defendants' earlier willingness to admit guilt under negotiated conditions.

The agreements applied to three of the four defendants currently included in the scheduled September 11 trial. Ali Abdul Aziz Ali, also known as Ammar al Baluchi, was not a party. Any agreed disposition would have affected the participating defendants individually rather than resolving the entire prosecution. The arrangements were pretrial agreements within the statutory military-commission system, not executive pardons or decisions to release the accused from detention.

The prosecution belongs to the longer history of legal responses to September 11. The attacks prompted changes in counterterrorism policy, armed-conflict detention, intelligence collection, and the interpretation of humanitarian protections. Those developments are examined more broadly in the history of how 9/11 changed international law. The plea negotiations arose after years of difficulty in obtaining a final criminal judgment within the institutional system developed following the attacks.

2.1 Guilty Pleas, Sentencing and the Death Penalty

The agreements contemplated guilty pleas to all charges and specifications against the participating defendants. In exchange, the government undertook not to pursue capital punishment. The anticipated disposition was life imprisonment without the possibility of parole, reached through guilty pleas followed by public sentencing proceedings rather than a fully contested capital trial (In re United States, 2025).

A pretrial agreement does not itself amount to a criminal conviction. Under military-commission procedure, acceptance of a negotiated arrangement by the convening authority must be distinguished from the subsequent entry and judicial acceptance of a guilty plea. The military judge must perform the functions required by the applicable procedural rules before the proposed disposition can produce its intended legal consequences. The government withdrew before those guilty-plea hearings occurred.

The distinction became central to the litigation because the defendants had undertaken substantial commitments even though the formal judicial process remained incomplete. The agreements would have permitted prosecutors to rely on admissions of responsibility without independently litigating every contested element through a trial. Their withdrawal reinstated the burden of proving guilt through admissible evidence, including the need to address longstanding disputes over statements obtained after coercive interrogation.

2.2 Admissions, Evidence and Victims' Participation

The defendants' commitments extended beyond entering guilty pleas. The agreements incorporated signed stipulations of fact intended to establish a factual basis for the pleas and assist sentencing. The defendants also undertook to withdraw specified motions and waive objections capable of lawful waiver. These concessions could have reduced substantial portions of the pretrial litigation that had occupied the military commission for years (In re United States, 2025).

A particularly significant provision concerned FBI Letterhead Memoranda summarizing statements obtained during interviews in 2007 and, for bin 'Atash, additional interviews in 2008. The agreements contemplated using specified memoranda to establish guilt and inform sentencing. Their proposed admission was consequential because the voluntariness of the underlying statements remained disputed. The negotiated evidentiary concessions were contractual commitments, not judicial findings that the statements satisfied otherwise applicable admissibility requirements.

The agreements also contemplated substantial participation by victims' relatives during public sentencing hearings. Family members would have been able to address and question the defendants, who undertook to answer truthfully. These provisions offered a potential means of obtaining admissions and information while avoiding the uncertain duration of a capital trial. They did not guarantee that every relative would regard the outcome as satisfactory, and the promised participation depended on the agreements proceeding through the required judicial process.

3. Why Austin's Withdrawal Prevailed

On August 2, 2024, two days after Escallier accepted the agreements, Defense Secretary Lloyd Austin withdrew the authority previously delegated to her to enter such arrangements. He reserved that responsibility to himself and withdrew the government's participation in the agreements. His intervention followed public and political controversy concerning the removal of capital punishment in a prosecution involving the September 11 attacks.

The dispute was legal as well as political. Escallier had acted under authority delegated by the Secretary, and the defendants argued that her acceptance created obligations the government could no longer disregard. The military judge agreed that withdrawal was unavailable under the circumstances presented. The United States Court of Military Commission Review subsequently denied the government's request for extraordinary relief, leaving the plea process capable of proceeding unless a higher court intervened.

The government sought writs of mandamus and prohibition from the D.C. Circuit. These extraordinary remedies permit appellate intervention in limited circumstances, including when a lower tribunal is alleged to have exceeded its authority and ordinary appellate remedies are inadequate. On July 11, 2025, a divided panel granted relief, allowing the withdrawal and preventing hearings for entry of guilty pleas under the disputed arrangements (In re United States, 2025).

3.1 Authority, Withdrawal and the Start of Performance

The governing provision was Rule for Military Commissions 705(d)(4)(B). It permits a convening authority to withdraw from a pretrial agreement before the accused begins performance of promises contained in that agreement. The rule places a temporal restriction on withdrawal. Its operation depends on what the accused promised and whether conduct qualifying as the beginning of performance occurred before the government withdrew.

Austin's supervisory authority arose from the Military Commissions Act and its implementing rules. Under 10 U.S.C. § 948h, the Secretary of Defense may convene military commissions or designate other officials to do so. The D.C. Circuit concluded that Austin possessed authority to withdraw the delegation previously given to Escallier and assume responsibility for the relevant decisions. The remaining controversy concerned the separate procedural restriction created by Rule 705.

The defendants maintained that performance had already begun. They relied on signed factual stipulations, commitments concerning pending motions, and their conduct during suppression proceedings on August 1 and 2, 2024. Defense counsel had refrained from questioning an FBI witness during hearings that continued for a defendant who had not entered an agreement. The government argued that these actions did not constitute performance of the particular promises contained in the negotiated instruments.

Resolving that disagreement required interpretation of the agreements. Signing a document before acceptance did not necessarily constitute performance of a promise requiring a subsequent procedural act. Equally, the fact that an obligation had not been fully completed did not settle whether its performance had begun. That distinction became the central point of disagreement between the appellate majority and Judge Robert Wilkins.

3.2 The D.C. Circuit Majority and Judge Wilkins's Dissent

Judges Patricia Millett and Neomi Rao concluded that the Secretary possessed the necessary withdrawal authority and that the defendants had not begun the contractual performance required to prevent its exercise. The majority treated the signed factual stipulations as elements of the defendants' offers rather than performance of obligations arising after acceptance. It reasoned that the agreements contemplated formally entering those stipulations before the military judge, something that had not occurred when Austin withdrew (In re United States, 2025).

The majority also rejected the argument that declining to question a witness constituted performance. The agreements contained promises to withdraw certain motions and waive specified objections, but the defendants had not carried out those procedural steps before withdrawal. The court considered the government entitled to extraordinary relief because the lower tribunal's interpretation was legally erroneous, no adequate alternative remedy was available, and the circumstances justified immediate appellate intervention.

The majority expressly considered United States v. Dean (2009), a decision of the Court of Appeals for the Armed Forces concerning performance under a military pretrial agreement. Although decisions of that court may be instructive for military commissions, they are not automatically binding under 10 U.S.C. § 948b(c). The D.C. Circuit majority found Dean unpersuasive and factually distinguishable, criticizing its treatment of contractual performance and declining to follow its reasoning.

Judge Wilkins disagreed with that assessment. In his partial dissent, he considered Dean persuasive authority supporting the military judge's conclusion that performance had begun. He emphasized the difference between commencing an undertaking and completing all associated procedural obligations. In his view, the government's position did not establish the clear and indisputable entitlement required for mandamus, particularly where the military judge and the Court of Military Commission Review had relied on an analogous military precedent.

The disagreement concerned the interpretation of military procedural rules and the demanding standard for extraordinary appellate relief. It did not concern the defendants' ultimate guilt or the admissibility of evidence obtained through coercive interrogation. The majority's judgment remains controlling in the plea-withdrawal dispute, while Wilkins's dissent records the principal legal objection to that outcome.

4. CIA Torture and the Later FBI Questioning

Mohammed was captured in Pakistan in March 2003 and subsequently transferred into the CIA's secret Rendition, Detention, and Interrogation program. He remained within that detention system until his transfer to Guantánamo Bay in September 2006. During CIA custody, he was subjected to waterboarding, prolonged sleep deprivation, stress positions, and other coercive interrogation practices. The Senate Select Committee on Intelligence documented the program in its 2014 investigation, drawing on extensive CIA records (Senate Select Committee on Intelligence, 2014).

The Senate investigation challenged earlier government representations concerning the effectiveness and conditions of CIA interrogations. Mohammed's treatment was particularly significant because the interrogation program was designed to obtain intelligence through methods that subjected detainees to severe physical and psychological pressure. Military-commission findings subsequently documented how coercion and conditioning were used to secure detainee cooperation, making that history directly relevant to the admissibility of later statements.

After Mohammed's transfer to Guantánamo, FBI and High Value Detainee Prosecution Task Force personnel questioned him between January 12 and 16, 2007. The interviews occurred in a different institutional setting from the CIA's secret facilities. Prosecutors later sought to introduce the resulting statements in the military proceedings. The central evidentiary question was whether the change in interrogators and detention location had sufficiently separated the interviews from the coercion Mohammed previously experienced.

Detention in an armed-conflict setting does not remove the minimum legal protections owed to individuals in custody. Common Article 3 of the Geneva Conventions prohibits torture, cruel treatment, and sentences imposed without essential judicial guarantees. The Supreme Court recognized the relevance of Common Article 3 to the conflict with al-Qaeda in Hamdan v. Rumsfeld (2006). That judgment did not determine the voluntariness of Mohammed's later FBI statements, which required a separate assessment under the evidence rules governing his military commission.

5. Why the 2007 Statements Were Suppressed

On August 28, 2026, military judge Lieutenant Colonel Michael A. Schrama granted Mohammed's motion to suppress statements recorded in FBI Letterhead Memoranda from January 2007. The ruling, designated AE 630BBBBBB, followed extensive litigation and evidentiary proceedings concerning the relationship between CIA interrogation practices and subsequent questioning conducted at Guantánamo Bay (U.S. Military Commissions Trial Judiciary, 2026).

The judge concluded that prosecutors had failed to prove, by a preponderance of the evidence, that the statements were voluntary. His assessment concerned both the lasting consequences of the CIA's treatment and the circumstances surrounding the later FBI questioning. The ruling addressed the particular statements offered by the prosecution; it did not determine the admissibility of every other item of evidence or require dismissal of the charges.

The decision was independent of the dispute over the plea agreements. Under the negotiated arrangements, Mohammed had agreed to permit specified interview memoranda to be used in the proposed disposition. Once those arrangements were withdrawn, the statements remained subject to contested admissibility proceedings. The suppression ruling demonstrates the practical difficulty of returning to a capital trial after negotiations that would have resolved significant evidentiary disputes through agreed admissions.

5.1 The Military Judge's August 2026 Findings

Schrama examined whether the coercive effects of the CIA program had dissipated by the time Mohammed was questioned in January 2007. Although the interviews occurred after his transfer to Guantánamo, Mohammed had never been released from government custody or restored to ordinary autonomy. The judge emphasized the continuity of official control over his confinement and the psychological conditioning produced during the earlier interrogation program (U.S. Military Commissions Trial Judiciary, AE 630BBBBBB, 2026).

The ruling also considered the immediate conditions of the FBI interviews. Mohammed was transported under guard, physically restrained, and questioned in a controlled environment that the judge regarded as intimidating. Investigators deliberately withheld warnings concerning the right to remain silent and did not explain that earlier statements extracted through coercion could not be used against him. When Mohammed asked about access to legal counsel, investigators denied his request.

Prosecutors pointed to circumstances suggesting that Mohammed retained some ability to exercise choice, including adjustments to interview arrangements and his ability to end participation in questioning. The military judge found those considerations insufficient to establish voluntariness. He concluded that the prosecution had failed under both relevant analyses: the earlier coercion had not been shown to have lost its effect, and the circumstances of the 2007 questioning did not independently establish a voluntary statement.

The absence of Miranda warnings was relevant to the assessment, but the ruling did not establish a universal requirement that FBI investigators administer such warnings in every military-commission interrogation. The judge considered their absence alongside prolonged detention, prior coercion, physical restraint, and the failure to explain the legal status of earlier confessions. The decision concerned the cumulative effect of those circumstances on Mohammed's ability to make a voluntary statement.

5.2 U.S. Rules Excluding Coerced Statements

The Military Commissions Act of 2009 establishes specific rules concerning statements obtained through prohibited interrogation practices. Section 948r(a) of Title 10 excludes statements obtained through torture or cruel, inhuman, or degrading treatment, subject to a narrow exception allowing such statements to be used against a person accused of that mistreatment as evidence that the statement was made. The statutory exclusion applies irrespective of the seriousness of the criminal allegations.

Section 948r(c) establishes additional conditions for admitting an accused person's statements. The military judge must find that the totality of the circumstances makes the statement reliable and sufficiently probative. The statute also requires either that the statement was voluntarily given or that it was made incident to lawful military operations at the point of capture or during closely related active combat engagement, with admission serving the interests of justice.

Section 948r(d) identifies considerations relevant to voluntariness, including the circumstances of questioning, the accused's characteristics, the elapsed time, and changes in the location or identity of interrogators. Military Commission Rule of Evidence 304 implements the statutory requirements and governs challenges to the admissibility of accused-person statements. In Mohammed's case, prosecutors were required to establish voluntariness by a preponderance of the evidence.

Schrama applied those provisions together with established constitutional

jurisprudence concerning coerced confessions, including Culombe v. Connecticut (1961) and Schneckloth v. Bustamonte (1973). Following the approach identified in Al-Hela v. Biden (2023), the military judge assumed without deciding that the Due Process Clause applied to the proceedings. His ruling consequently did not settle the broader constitutional question of which protections noncitizen defendants may invoke before military commissions.

The decisive holding was narrower. Prosecutors had not established that Mohammed's January 2007 statements were voluntary. The judge did not separately decide every possible ground for exclusion, including whether the statements had themselves been obtained through torture or cruel, inhuman, or degrading treatment, whether particular derivative-evidence rules independently required suppression, or whether the statements failed a separate reliability test. Those distinctions define the legal reach of the August ruling.

5.3 Torture, International Law and Evidentiary Remedies

The Convention Against Torture establishes obligations that extend beyond prohibiting abusive interrogation. Article 2(2) excludes war, threats of war, public emergencies, and other exceptional circumstances as justifications for torture. Article 15 requires states parties to ensure that statements established to have resulted from torture are not invoked as evidence in proceedings, except against a person accused of torture to prove that the statement was made (United Nations, 1984).

These obligations regulate different aspects of state conduct. The prohibition of torture governs the treatment of persons in custody, while Article 15 addresses the subsequent evidentiary use of torture-produced statements. The prohibition itself has been recognized as a peremptory norm of international law, including by the International Court of Justice in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (2012, para. 99). Its peremptory status does not independently determine every evidentiary remedy available in a domestic criminal proceeding.

The prohibition of torture as a peremptory norm establishes a fundamental limit on state conduct. The separate question of whether a particular statement may be admitted in a U.S. military commission is governed by the applicable domestic evidentiary provisions, interpreted consistently with relevant legal obligations. Those rules include protections that extend expressly to cruel, inhuman, or degrading treatment, rather than torture alone.

The United States ratified the Convention Against Torture subject to reservations, understandings, and declarations, including a declaration that Articles 1 through 16 are not self-executing. That declaration concerns direct judicial enforceability within the domestic legal system; it does not extinguish the United States' international treaty obligations. The Military Commissions Act supplies independent statutory protections concerning statements obtained through prohibited interrogation practices.

Schrama's August 2026 ruling rested on voluntariness under domestic military-commission law. Although the Convention Against Torture provides relevant international legal context, Article 15 was not the independent ground on which the judge resolved Mohammed's motion. The distinction is significant because excluding a statement for involuntariness and applying a treaty-based prohibition on torture-derived evidence involve related but legally separate inquiries.

6. Delay and the Limits of Guantánamo Military Justice

The September 11 prosecution has experienced an unusually prolonged pretrial history. Mohammed was captured in 2003, transferred to Guantánamo in 2006, and initially brought before military-commission proceedings in 2008. The present prosecution proceeded under the revised framework established by the Military Commissions Act of 2009, with an arraignment in May 2012. By October 2026, substantial questions about evidence and procedure remained unresolved.

The delay cannot be explained by a single event. The prosecution has involved successive legal frameworks, multiple defendants, capital charges, extensive classified evidence, and disputes arising from the CIA detention program. Determining which statements may be used at trial has required lengthy proceedings concerning government records, interrogation practices, witness testimony, and restrictions on access to intelligence material.

These problems have developed within a system distinct from ordinary federal criminal courts. Military commissions exercise authority conferred by Congress and operate under specialized procedural rules. Their statutory jurisdiction extends to specified offenses involving persons classified as alien unprivileged enemy belligerents. Congressional authorization does not remove the need to respect applicable judicial guarantees or resolve challenges to the fairness and legality of particular proceedings.

6.1 Causes of the Prolonged Pretrial Proceedings

The CIA interrogation program created lasting difficulties for criminal prosecution. Defense counsel required information about their clients' treatment to challenge the voluntariness of subsequent statements. The government sought to protect classified intelligence and sensitive operational information. Disputes concerning disclosure, protective orders, and permissible substitutes required extensive judicial supervision and contributed to repeated delays.

The military-commission system also underwent substantial legal changes after the Supreme Court's decision in Hamdan v. Rumsfeld (2006). That judgment identified defects in the commission structure and procedures then before the Court, including incompatibility with applicable requirements of the Uniform Code of Military Justice and Common Article 3. Congress subsequently enacted military-commission legislation, including the revised framework adopted in 2009.

In Boumediene v. Bush (2008), the Supreme Court recognized constitutional habeas corpus protections for noncitizens detained at Guantánamo, rejecting the proposition that the detention facility's location beyond formal U.S. sovereignty necessarily excluded judicial review. The judgment concerned the constitutional availability of habeas corpus rather than the validity of every subsequent military-commission procedure. These decisions shaped the legal environment in which the September 11 prosecution developed, but neither determined Mohammed's present evidentiary disputes.

The plea-agreement controversy added another substantial period of litigation. After the agreements were accepted in July 2024, the parties contested their withdrawal before the military judge, the military appellate court, the D.C. Circuit, and ultimately the Supreme Court. The resulting proceedings prevented the negotiated disposition from taking effect without resolving the underlying disputes concerning prosecution evidence. Responsibility for the overall delay must be assessed by reference to the individual proceedings rather than attributed categorically to either the defense or the government.

6.2 Trial Without Undue Delay and Fair-Trial Guarantees

Article 14(3)(c) of the International Covenant on Civil and Political Rights guarantees accused persons the right to be tried without undue delay. The guarantee forms part of the broader protection of a fair and public hearing before a competent, independent, and impartial tribunal. In General Comment No. 32, the Human Rights Committee explained that the reasonableness of delay depends on the circumstances, including the complexity of the case, the conduct of the parties, and the actions of the authorities (Human Rights Committee, 2007).

The length of the September 11 proceedings raises substantial questions under these standards. Years of pretrial litigation may affect witness availability, preservation of evidence, recollection of events, and the defense's ability to investigate disputed government conduct. The prosecution's complexity and national-security context are relevant explanations for delay, but they do not eliminate the need to assess whether prolonged proceedings remain justified.

The application of the ICCPR to Guantánamo remains contested. The United States has historically maintained a restrictive position concerning the Covenant's extraterritorial application, while the Human Rights Committee interprets the treaty as protecting individuals subject to a state's power or effective control in circumstances beyond its territory. The United States also declared Articles 1 through 27 non-self-executing upon ratification. Those positions affect the relationship between international obligations and remedies available before U.S. courts (United Nations, 1966; Human Rights Committee, 2004).

Domestic constitutional principles provide another relevant point of reference. In Barker v. Wingo (1972), the Supreme Court identified factors concerning the length and reasons for delay, assertion of the speedy-trial right, and prejudice to the accused. Applying constitutional speedy-trial doctrine to military-commission proceedings requires attention to the governing statutes and jurisdiction-specific authorities. Neither the passage of time alone nor the existence of complex litigation establishes a final judicial determination that Mohammed's speedy-trial rights have been violated.

The relationship between detention and fair-trial guarantees is developed within international human rights law, including the protections established by Articles 9 and 14 of the ICCPR. The Human Rights Committee's General Comments provide authoritative interpretations of the Covenant, although they are not themselves binding judgments. The legal assessment must distinguish treaty obligations, their interpretation by supervisory bodies, and the rules governing their enforcement in a particular domestic forum.

7. Capital Punishment and Competing Claims to Justice

The withdrawal of the 2024 agreements restores the possibility of capital punishment for the participating defendants. It does not impose a death sentence or establish that prosecutors will ultimately secure one. The military commission must determine guilt under the applicable standards, and any capital sentence must satisfy the separate statutory requirements governing punishment.

This distinction has particular significance because the prosecution concerns allegations of mass civilian killings. The seriousness of the charges supports the public interest in accountability and lawful punishment, but it cannot replace the requirement of proving individual criminal responsibility. A capital prosecution must comply with the procedural safeguards established by domestic law, regardless of the defendants' alleged conduct or the political importance of the proceedings.

The failed agreements also reveal different understandings of justice among those affected by the attacks. Some relatives of victims supported a negotiated resolution that could secure admissions and final sentences. Others opposed removing the possibility of execution. These positions concern legitimate interests in accountability, punishment, and finality, although none can independently determine the legal obligations of prosecutors or the tribunal.

7.1 Sentencing Requirements and the Possibility of Execution

Under 10 U.S.C. § 949m, military commissions may impose capital punishment only where death is authorized for the offense, prosecutors provide the required advance notice, and the necessary voting conditions are satisfied. Section 949m(a) ordinarily requires concurrence of two-thirds of the primary commission members for conviction, subject to the statutory provision concerning accepted guilty pleas. A capital conviction is subject to the additional unanimity requirement prescribed by § 949m(b)(2)(C).

Sentencing involves separate voting rules. Section 949m(b)(1) ordinarily requires concurrence of two-thirds of the primary members for a sentence. A sentence of life imprisonment or confinement exceeding ten years requires three-fourths concurrence under § 949m(b)(3). For a death sentence, every primary member participating in the sentencing vote must concur, as required by § 949m(b)(2)(D). The statute also recognizes the distinct position of an accused whose guilty plea has been accepted and not withdrawn before sentencing.

A capital commission ordinarily requires at least twelve primary members under § 949m(c). Where physical conditions or military exigencies make twelve members not reasonably available, the convening authority may specify a smaller commission of no fewer than nine members. The statute requires a detailed written explanation of that determination, appended to the record. These requirements establish procedural safeguards beyond those applicable to ordinary noncapital sentencing.

International human rights law imposes additional restrictions on capital punishment. Article 6(2) of the ICCPR limits its application in states that have not abolished it to the most serious crimes and requires a final judgment by a competent court. In General Comment No. 36, the Human Rights Committee interpreted that threshold restrictively, identifying crimes of extreme gravity involving intentional killing and emphasizing the importance of rigorous fair-trial protections (Human Rights Committee, 2018).

The United States retains capital punishment and entered relevant reservations upon ratifying the ICCPR. Its treaty position must be considered when assessing the scope of its obligations, while the Human Rights Committee's interpretations must be distinguished from the binding text of the Covenant. The broader restrictions governing the death penalty under international law are particularly relevant where evidentiary reliability, coerced statements, and prolonged proceedings arise in a capital prosecution.

7.2 Victims' Families and the Value of a Final Resolution

The 2024 agreements divided relatives of September 11 victims. Some supported the proposed guilty pleas because they offered a means of obtaining admissions, public sentencing proceedings, and permanent imprisonment without awaiting the outcome of further years of litigation. For those families, certainty about responsibility and punishment could provide a form of resolution that an uncertain capital trial might not deliver.

Other relatives opposed the negotiated removal of the death penalty. They regarded the possibility of execution as an appropriate response to the scale and severity of the attacks and believed that a full trial was necessary to establish criminal responsibility publicly. Their objections also reflected concern about the decision to negotiate away capital punishment before the prosecution reached a final judgment (Associated Press, 2026; Reuters, 2026).

Neither position represents every victim's family, and the competing interests cannot be reduced to a simple division between accountability and leniency. The negotiated arrangements contemplated admissions of guilt and life imprisonment, while a contested trial may produce a different sentence but involves substantial procedural uncertainty. Victims' interests are relevant to the public significance of the proceedings, yet the commission's responsibility remains to determine guilt and punishment according to law.

8. What Remains Before the June 2028 Trial

On August 26, 2026, military judge Michael Schrama established June 5, 2028, as the scheduled beginning of trial proceedings. The order, AE 989BB, provides for the assembly, challenges, and empanelment of military-commission members, followed by opening statements and the presentation of prosecution and defense evidence. It does not guarantee that every pending motion will be resolved by that date or that the proceedings will continue without interruption (U.S. Military Commissions Trial Judiciary, 2026).

The prosecution's evidentiary position changed substantially during 2025 and 2026. On April 11, 2025, military judge Colonel Matthew McCall suppressed FBI statements attributed to Ali Abdul Aziz Ali, also known as Ammar al Baluchi, in ruling AE 942SSSS. The government challenged that decision through military appellate proceedings. The ruling established an important point of comparison for later disputes involving the other September 11 defendants.

Schrama subsequently suppressed Mohammed's January 2007 statements on August 28, 2026. Further suppression rulings followed for Mustafa al Hawsawi on October 2, 2026, in AE 632MMMMM, and Walid bin 'Atash on October 7, 2026, in AE 631FFFFF. The Office of Military Commissions recorded the October rulings, while contemporaneous reporting described both decisions as excluding FBI statements on voluntariness grounds (Office of Military Commissions, 2026; Rosenberg, 2026).

The result is that all four defendants' disputed FBI statements have been excluded from the September 11 prosecution through individual suppression rulings. The decisions do not necessarily rest on identical factual findings or legal reasoning. Their scope must be assessed separately, particularly because the complete public reasoning of the October orders was not available at the time of the rulings. The exclusion of those statements also remains subject to the possibility of appellate developments.

These decisions significantly alter the prosecution's evidentiary position. FBI interviews conducted after the defendants left CIA custody had been intended to produce statements usable in criminal proceedings. Military judges have now rejected the admissibility of the disputed statements from each defendant. That outcome limits prosecutors' ability to rely on the admissions they sought to introduce, although it does not establish that every potentially incriminating statement or item of evidence has been excluded.

The government may still seek to prove the charges through independently admissible material, including witness testimony, documents, operational records, and other evidence. Each category remains subject to the applicable rules governing relevance, reliability, disclosure, and lawful acquisition. The publicly available record does not establish whether the remaining evidence will be sufficient to sustain convictions against individual defendants.

Further proceedings may address classified information, outstanding discovery disputes, witness examination, and the effects of the suppression decisions. Appellate litigation concerning the excluded statements could also influence the admissibility rules applied before trial. The Supreme Court's refusal to review the plea-withdrawal judgment does not settle those questions or prevent further litigation within the criminal case.

The scheduled proceedings may ultimately produce convictions, acquittals, or additional procedural developments. If prosecutors continue seeking capital punishment, sentencing will present separate questions concerning statutory voting requirements and fair-trial guarantees. As of October 20, 2026, neither the sufficiency of the remaining prosecution evidence nor the eventual verdict and sentence has been established.

Conclusion

The Supreme Court's October 19, 2026, refusal to review the Khalid Sheikh Mohammed plea deal dispute leaves the September 11 prosecution without the negotiated guilty pleas accepted in July 2024. The D.C. Circuit's ruling permits the government's withdrawal, but it does not determine criminal responsibility or resolve the evidentiary consequences of earlier CIA interrogation practices. The suppression rulings affecting all four defendants demonstrate that those practices continue to shape the government's ability to present particular evidence.

The prolonged proceedings reflect both the complexity of the criminal allegations and the difficulties associated with the military-commission system. Classified evidence, constitutional litigation, disputed interrogations, changes in procedural law, and successive appeals have delayed the prosecution. Their cumulative effects raise substantial fair-trial concerns, although the length of the proceedings alone does not establish that every applicable legal guarantee has been violated.

The remaining question is whether the United States can complete a criminal prosecution that satisfies the applicable requirements of evidence, procedure, and sentencing. The September 11 attacks created a compelling demand for accountability. That demand does not diminish the legal protections owed to persons accused of participating in them. Any sustainable judgment must rest on admissible evidence and procedures capable of withstanding legal scrutiny, particularly if the government

ultimately seeks the death penalty.

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