Legal analyst calls 2028 Sept. 11 trial date 'entirely unrealistic'

August D.C. Circuit ruling backed Austin’s authority to revoke plea deals

Georgetown University Law Center professor Steve Vladeck told CNN on Monday the summer 2028 military commission trial date for Khalid Sheikh Mohammed and two co-defendants accused of planning the Sept. 11, 2001, terrorism attacks is “entirely unrealistic,” given how many issues remain to be resolved.

Vladeck, a legal analyst who had filed a friend-of-the-court brief asking the justices to take up the defendants’ appeals, spoke after the U.S. Supreme Court on Monday declined to review a 2024 Pentagon decision revoking plea deals the three had reached earlier that year.

The high court left in place an appeals court decision that said former Defense Secretary Lloyd Austin, a member of the Biden administration, had the authority to cancel the agreements, which had removed the death penalty from possible punishments, CNN reported.

Military prosecutors had reached the deals with the alleged conspirators earlier in 2024, and a military commission judge signed off on them. Under the agreements, the three would have received life sentences in exchange for guilty pleas to all charges, with a public sentencing attended by survivors of the Sept. 11 attacks and family members of those killed.

Austin revoked the agreements days later. Military courts said he did not have the authority to do so, but the U.S. Court of Appeals for the District of Columbia Circuit backed his decision in August.

“The practical effect of today’s denials of certiorari is to clear the way for the inexorable pre-trial proceedings in these cases to continue,” Vladeck told CNN. “It would be one thing if a trial were reasonably likely in the near future, but even the current summer 2028 trial date is entirely unrealistic given how many issues remain to be resolved.”

The United States has held Mohammed at the U.S. base in Guantanamo Bay, Cuba, since 2006. Co-defendants Mustafa Ahmed al-Hawsawi and Walid bin Attash, who also appealed, are also held at the facility.

Monday’s announcement is one step toward clearing the way for the three to face a military commission, which could happen in 2028 at the soonest. The military commission trials have been delayed in part as leaders and legal authorities determine how to deal with questions and concerns about using evidence obtained by CIA torture.