The Justice Department is urging the Supreme Court to reject a bid by alleged Sept. 11 attack mastermind Khalid Sheikh Mohammed and a co-defendant to restore plea agreements that would spare them the death penalty.
Solicitor General D. John Sauer asked the justices on Wednesday to leave in place a federal appeals court ruling that allowed the Pentagon to withdraw from the agreements with the alleged attack plotters, Mohammed and Mustafa Ahmed al Hawsawi. His response was in regard to a military judge’s November 2024 finding that the Pentagon had acted too late because the defendants had already begun fulfilling the agreements, which cleared the way for their guilty pleas that shielded them from capital punishment.
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“The military judge’s extraordinary disregard for the Secretary’s authority” justified intervention in prosecutions “of paramount national significance,” Sauer wrote.
The filing came the same day a military judge scheduled Mohammed’s trial for June 2028, nearly 20 years after he was charged with war crimes stemming from the 2001 attacks that killed 2,977 people.
Under the agreements, Mohammed and al Hawsawi would plead guilty to all charges and provide detailed admissions about their roles in the attacks. In return, prosecutors would not seek the death penalty. The men also agreed to answer questions from victims’ families.
A Pentagon official under the Biden administration approved the agreements on July 31, 2024. Two days later, then-Defense Secretary Lloyd Austin canceled them, saying a decision of such significance should rest with him.
A military judge later that year ruled that Austin acted too late because the defendants had already begun carrying out their obligations. A military appeals court upheld that decision. However, the D.C. Circuit reversed course in July 2025, blocking the military judge from accepting the guilty pleas and allowing the Pentagon’s withdrawal to stand.
Mohammed and al Hawsawi asked the Supreme Court on June 5 to overturn that ruling. They argue that the appeals court used an extraordinary order known as mandamus to give prosecutors an appeal that Congress had not authorized.
Sauer said Wednesday the D.C. Circuit had authority to intervene and that the military judge committed “egregious legal errors.”
The defendants’ decision not to question a witness did not amount to carrying out the agreements, the government argued, because the agreements did not require that action and the defendants had not withdrawn their pending motions.
Sauer noted toward the end of his filing that “The government recognizes that these prosecutions have been lengthy” and that victims’ families “are divided” about pursuing the death penalty.
However, because “this case implicates the interests of the entire nation,” Sauer added, the decision should be made by “an official who answers to the American people.”
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The Supreme Court has not decided whether it will hear the case.
Denying the petition would leave the D.C. Circuit’s ruling in place and permit the government to continue pursuing capital prosecutions against the alleged perpetrators of one of the most heinous foreign attacks ever committed on U.S. soil.
