Twenty-five years later, the 9/11 military commission is still litigating how to litigate

The 25th anniversary of the September 11 attacks passed this week with the men accused of planning them still sitting in cells at Guantanamo Bay, no closer to a verdict than they were a decade ago. A military judge, Air Force Lt. Col. Michael Schrama, has now set jury selection to begin on June 5, 2028, rejecting prosecutors' request for a January 2027 start because, by his own estimate, roughly 90 more rulings must be issued before the case can proceed. Even that date is provisional. It would fall nearly 27 years after the attacks, on a case first charged in 2008 and now in the hands of its fifth presiding judge.

What has made the past year different is not progress toward trial but a jurisdictional fight over a canceled plea deal that has reached the Supreme Court, and a ruling this summer that stripped prosecutors of a central piece of evidence. Together they illustrate something the military commission system was specifically designed to avoid: a case so encumbered by its own procedural history that neither conviction nor acquittal looks close.

A settlement that would not stay settled

In July 2024, Khalid Sheikh Mohammed and two co-defendants, Walid bin Attash and Mustafa al-Hawsawi, signed pretrial agreements to plead guilty in exchange for the government dropping the death penalty. Within days, then-Defense Secretary Lloyd Austin moved to withdraw the deals. Military judges twice ruled that Austin had acted too late, since the defendants had already begun performing under the agreements. The government then took the unusual step of asking a federal appeals court to intervene in an active criminal case before final judgment, and in July 2025 a divided U.S. Court of Appeals for the D.C. Circuit sided with the Pentagon, issuing a writ of mandamus that barred the military judge from accepting the guilty pleas.

Mohammed and al-Hawsawi have now asked the Supreme Court to undo that ruling, in a case docketed as Mohammad v. United States, No. 26-13. The question before the justices is narrow on its face: whether an appeals court may use the All Writs Act to review an interlocutory ruling in a criminal case that does not amount to a dismissal. But the practical stakes are not narrow at all. The Solicitor General's office, in an opposition brief filed August 26, urged the Court to leave the appeals court's ruling intact, effectively keeping the case on the path to a capital trial rather than a negotiated plea. The petitioners filed a reply on September 8, and the case is scheduled for the justices' private conference on September 28.

The unusual alignment of interests in that fight is itself notable. Some family members of the victims want to see the case decided at trial, with the death penalty available. Others have told the Court the opposite. September Eleventh Families for Peaceful Tomorrows, joined by 66 individual relatives of people killed in the attacks, filed an amicus brief warning that overturning the plea agreements guarantees more delay, not more accountability.

"If left to stand, the decision raises the possibility that the prosecution of those responsible for the mass murder of thousands of people on U.S. soil will never be concluded."

Georgetown law professor Stephen Vladeck filed a separate brief arguing the D.C. Circuit has applied the mandamus standard inconsistently across the commission's history, calling the pattern a "recurring institutional failure" rather than an isolated error. Whichever way the Court rules on the underlying jurisdictional question, the more damning fact is that a procedural dispute over who gets to review a judge's ruling has itself become a multi-year detour, layered atop two decades of others.

Torture's evidentiary bill keeps coming due

The plea fight is not the only recent setback for prosecutors. In August, the military judge excluded statements Mohammed made to an FBI "clean team" in 2007, ruling the government had failed to prove they were voluntary given his earlier torture, including waterboarding, in CIA custody. Michael Lebowitz, a former Guantanamo prosecutor and national security attorney, has argued publicly that enough untainted evidence remains to convict Mohammed and his co-defendants without those statements, but acknowledged the exclusion makes prosecutors' task of connecting the evidentiary dots meaningfully harder.

This is the recurring pathology of the commissions: evidence obtained through torture in the years after 2001 keeps resurfacing as a legal liability two decades later, forcing judges to relitigate the voluntariness of statements taken under conditions the CIA itself has since disavowed. A system built partly to avoid the evidentiary constraints of an Article III courtroom has instead produced its own, arguably thornier, version of the same problem, except slower, because the commissions lack the settled body of precedent that ordinary federal courts long ago developed for handling coerced confessions.

The comparison the commissions keep losing

The counterfactual is not hypothetical. Zacarias Moussaoui, charged in connection with the same conspiracy, pleaded guilty in an ordinary federal district court in 2005 and was sentenced to life in prison within four years of the attacks. The men considered far more central to planning September 11 have now been in U.S. custody for two decades without a verdict, tried in a forum invented specifically to handle their cases more efficiently and more securely than a civilian court could. NPR's review of the case's status and CBS News's accounting of the record both note that the commission has now cycled through five judges since Mohammed's 2012 arraignment, each change resetting portions of pretrial litigation.

Family members who have followed the case for years describe a familiar cycle of announced dates that do not hold. Gordon Felt, president of Families of Flight 93, has said the commission has set trial dates before, and that with roughly 90 rulings still outstanding, he will "believe it when I see it." Brett Eagleson, whose father died in the World Trade Center, put it more bluntly: everything the government has attempted at Guantanamo, he said, it has botched.

• Case first charged in 2008; formal arraignment in 2012
• Fifth military judge now presiding; roughly 90 pretrial rulings still pending
• 2024 plea deals rescinded by the Pentagon, upheld on appeal in 2025, now before the Supreme Court
• Key 2007 confession evidence excluded in August 2026 as fruit of earlier torture

None of this argues that Mohammed and his co-defendants deserve leniency, or that the attacks should go unanswered. It argues something narrower and, in its way, more damning: a bespoke legal system created explicitly to deliver swifter, more secure justice than ordinary courts has instead delivered neither swiftness nor, so far, justice of any describable kind. Whatever the Supreme Court decides about mandamus review this fall, the deeper failure predates that question and will outlast its answer. A trial date set for 2028 is not a resolution. It is an admission that the commissions have already failed at the one task that justified their existence.