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Split DC Circuit panel upholds authority of Defense Secretary to reject plea deals with three 9/11 defendants for LWOP sentences

By Douglas Berman
July 11, 2025

In the latest chapter of a long running saga, a panel of the DC Circuit today upheld the authority of then-Secretary of Defense Lloyd  Austin to withdraw from plea agreements with three of the 9/11 defendants.  The start of the majority opinion in In Re: United States of America , No. 25-1009 (DC Cir. July 11, 2025) (available here), starts this way:

Respondents Khalid Sheikh Mohammad, Walid Muhammad Salih Mubarak bin ‘Atash, and Mustafa Ahmed Adam al Hawsawi are being tried by military commission at the United States Naval Base in Guantanamo Bay, Cuba. They are each accused of participating in the planning and execution of the terrorist attacks on September 11, 2001, which killed 2,976 people.

At the end of July 2024, each Respondent offered, and the Convening Authority overseeing their cases accepted, pretrial agreements in which Mohammad, bin ‘Atash, and Hawsawi agreed to plead guilty, and the government agreed not to seek the death penalty. Ruling on Defense Motions to Schedule Entry of Pleas, United States v. Mohammad, Military Comm’ns Trial Judiciary No. AE 955J / AE 956J / AE 957I, at 7 (U.S. M.C.T.J. Nov. 6, 2024) (“Pretrial Agreement Order”). Each Respondent also promised, among other things, to withdraw certain motions filed in their criminal cases and to waive all waivable motions. On August 1st and 2nd — right after the Convening Authority signed the agreements — Respondents stayed silent during the questioning of a witness in a suppression hearing that went forward for a non-settling codefendant. On August 2nd, then-Secretary of Defense Lloyd J. Austin III withdrew from each of the agreements.

As relevant here, the military commission judge and the United States Court of Military Commission Review (“CMCR”) refused to recognize the Secretary’s withdrawal on the ground that Respondents had begun to perform under the contracts. The CMCR denied the government’s petition for writs of mandamus and prohibition. The military judge then scheduled the prompt entry of Respondents’ pleas. After the government’s request for a stay was denied, it asked this court to issue writs of mandamus and prohibition enforcing the Secretary of Defense’s withdrawal from the pretrial agreements and prohibiting the military judge from entering guilty pleas under the agreements.

While mandamus and prohibition are extraordinary forms of relief, they are warranted in this case. The Secretary of Defense indisputably had legal authority to withdraw from the agreements; the plain and unambiguous text of the pretrial agreements shows that no performance of promises had begun; the government has no adequate alternative remedy to vindicate its interests; and the equities make issuance of the writs appropriate. 

I expect the defendants to appeal this ruling to the full DC Circuit and also to the Supreme Court, but I do not expect there will be further review.  Then again, few cases get as high-profile or as consequential as this one, so maybe there will be a cohort of additional judges or Justices eager to do additional review.

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