United States v. Khalid Sheikh Mohammed, et al. or KSM II is a trial of five alleged al-Qaeda members accused of orchestrating the September 11, 2001, attacks. Charges were announced by Brigadier General Thomas W. Hartmann on February 11, 2008, at a press conference hosted by the Pentagon. The accused are Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi and Mustafa al-Hawsawi. The trial for Ramzi bin al-Shibh is formally separate.
The trial is held in front of a U.S. military commission court at the Expeditionary Legal Complex in Guantanamo Bay, Cuba. In 2009 the case was planned to be transferred to a civilian court of the Southern District of New York, which was effectively prevented by an Act created by Congress and signed by President Obama in 2011. The pretrial proceedings started in Guantanamo Bay on May 5, 2012. As of 2026, the pretrial proceedings are still ongoing, and the trial is set to begin June 5, 2028.
Charges The five individuals are charged under the military commission system, as established by Congress under the Military Commissions Act of 2006. The charges, which were brought in 2011, are the following: attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, terrorism, and providing material support for terrorism.The federal charge of material support for terrorism is codified at 18 USC §§ 2339A & 2339B If convicted, they may face the death penalty.
The murder charge involves 2,977 individual counts of murderone for each person killed in the 9/11 attacks (not including the terrorists that orchestrated the attacks).
The trial in a military commission
On February 11, 2008, at a Pentagon press briefing, original charges were announced by Brigadier General Thomas W. Hartmann against six accused. By the time charges were "referred"Rule for Military Commission 601(e). Rules for Military Commissions (the military procedural equivalent of an indictment) in May 2008, there were only five accused. Later, it was revealed that the military commission Convening Authority (Susan Crawford, at the time) who referred the charges had seen evidence that the additional detainee originally charged, Mohammed al-Qahtani, had been tortured in military custody. Crawford determined that, as a result, he could not be prosecuted.
The trial was first presided over by military judge Colonel Ralph Kohlmann. The trial began on June 5, 2008, with the arraignment. Court personnel, prosecutors, defense attorneys, victims and family members of victims, as well as members of the press and non-governmental organizations, all traveled to Guantanamo Naval Station for the arraignment.
The U.S. Department of Defense has built a $12 million "Expeditionary Legal Complex" in Guantánamo with a courtroom designed to protect classified information, and capable of trying the alleged co-conspirators before one judge and jury. Only members of the defense teams of each of the five defendants, the prosecution team, court staff, and jury members may enter the courtroom itself. Media and other observers may watch unclassified proceedings only, sequestered in a room behind thick glass, located at the back of the large court facility. The sound from the courtroom to the spectator gallery is delayed 40 seconds, to allow the judge or court security officer to cut the sound feed, when necessary to protect classified information.
The death penalty against any of the accused requires the unanimous agreement of the members of the commission. Members of a military commission must all be active duty U.S. military officers.Rule for Military Commissions 503(a) (Members) Rules for Military Commissions
At the 2008 arraignment, Mohammed insisted he would not be represented by any attorneys. The other detainees quickly followed suit and said they too wanted to represent themselves, although the judge did not allow them to do so. One of the civilian attorneys Mohammed spurned, David Nevin, later told the Associated Press that he would attempt to meet with Mohammed to "hear him out and see if we can give him information that is helpful".
Mohammed lost his composure after the judge ordered several defense attorneys to keep quiet, saying in broken English, "It's an inquisition. It's not a trial. After torturing they transfer us to inquisition-land in Guantanamo."
Mohammed stated that he believes only in Sharia law and railed against U.S. president George W. Bush for waging a "crusade war". When the judge warned Mohammed that he will face execution if convicted of organizing the attacks, Mohammed said he welcomes the death penalty, stating that "Yes, this is what I wish, to be a martyr for a long time. I will, God willing, have this, by you."
A sound feed to journalists from the courtroom was turned off twice.
The sound was also turned off when another defendant discussed early days of his imprisonment. Judge Ralph Kohlmann said that in both cases the sound was turned off because classified information was discussed.
On September 23, 2008, in the voir dire process, Mohammed questioned the judge on his potential bias at trial.
On October 12, 2008, Kohlmann ruled that Mohammed and his four co-charged should be provided with laptops so they can work on their defenses..
Kohlmann unexpectedly replaced Kohlmann was scheduled to retire in 2009. In November 2008, he was unexpectedly replaced by Stephen Henley.
Revoked guilty plea On December 8, 2008, Khalid Sheikh Mohammed and his four co-defendants told the judge that they wished to confess and plead guilty to all charges. The plea was to be delayed until mental competency hearings for Mustafa Ahmad al-Hawsawi and Ramzi bin al-Shibh could be held regarding which Mohammed said, "We want everyone to plead together.", . Spencer Ackerman, writing in the Washington Independent, reported that Presiding Officer Stephen Henley had to consider whether he was authorized to accept guilty pleas.
On July 31, 2024, Mohammed, Attash, and al-Hawsawi agreed to plead guilty. Their plea deals were revoked by secretary of defense Lloyd Austin two days later.
Transfer of the case to a civilian court In July 2009, US attorney general Eric Holder assigned eight experienced criminal prosecutors to build the best criminal case they could against Khalid Sheikh Mohammed and his co-conspirators. His prosecutors, Holder said, had "constructed a case that uses materials and evidence that does not derive from the techniques that were controversial", which would "maximize our chances for success". It was a major concern to Holder that the case not rest on torture. "It's a statement about what this Administration is about", he said. "It's a statement about this Attorney General. We are not going to use the products of interrogation techniques that this President has banned."
On November 13, 2009, Eric Holder announced that Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi will all be transferred to the U.S. District Court for the Southern District of New York for trial. He also expressed confidence that an impartial jury would be found "to ensure a fair trial in New York".
A rally near the federal court building in Foley Square, in lower Manhattan, was held on December 5, 2010, at which the decision to transfer the case to a civilian court was severely criticized. It was organized, in part, by Debra Burlingame, the sister of the pilot Charles Burlingame, who was killed when Al Qaeda hijackers crashed the plane he had been flying into the Pentagon. Burlingame is one of the three founders of Keep America Safe, a political-advocacy group. Andrew McCarthy, the former Chief Assistant U.S. Attorney who led the prosecution of the 1993 World Trade Center attack, spoke at this rally declaring that Eric Holder didn't "understand what rule of law has always been in wartime". He said, "It's military commissions. It's not to wrap our enemies in our Bill of Rights."
In a letter to President Barack Obama, Dianne Feinstein, the chair of the Senate Intelligence Committee, suggested that holding a trial in New York was dangerous. "New York City has been a high-priority target since at least the first World Trade Center bombing", she wrote. "The trial of the most significant terrorist in custody would add to the threat."
On January 21, 2010, all charges have been withdrawn in the military commissions against the five suspects in the September 11, 2001, terror attacks being held at Guantanamo Bay. The charges were dropped "without prejudice"a procedural move that allows federal officials to transfer the individuals to trial in a civilian court and also allows for the possibility, if necessary, of bringing charges again in military commissions.
In February 2010, White House spokesman Robert Gibbs on CNN said that he expects Mohammed to be found guilty and executed. "Khalid Sheikh Mohammed is going to meet justice and he's going to meet his maker. He will be brought to justice and he's likely to be executed for the heinous crimes he committed."Al Jazeera English, 1 Feb, 2010, "Execution 'Likely' for 9/11 Suspect," The White House spokesperson's statement has been criticized as violating the principle of the presumption of innocence and has been characterized as egregious by an attorney of Guantanamo Bay detainees.
In February 2010, Fox News reported that the legal counsel of Khalid Sheikh Mohammed, and the legal counsel of several other captives, was halted without warning. The attorneys had made the trip to Guantanamo in the usual manner, advising authorities of the purpose of their trip. However, upon their arrival in Guantanamo, they were informed they were no longer allowed to see their clients. They were told that letters they had written to their clients could not be delivered, as they were no longer authorized to write to their clients. Camp authorities told them that since the charges against their clients had been dropped while the Department of Justice determined where to charge them, they no longer needed legal counsel. Camp authorities told them that all future access to the captives had to be approved by Jeh Johnson, the Department of Defense's General Counsel. Fox reported that during earlier periods when the charges had been dropped the captives had still been allowed to see their attorneys. Fox claimed that questions they asked camp authorities lead to the captives' access to their attorneys being restored.
Transfer of the case back to a military commission On January 7, 2011, US president Barack Obama signed the National Defense Authorization Act which explicitly prohibits the use of US Defense Department funds to transfer detainees from Guantanamo Bay to the United States or other countries. It also bars Pentagon funds from being used to build facilities in the United States to house detainees, as the president originally suggested. The move essentially barred the administration from trying detainees in civilian courts. The president objected to the provision in the bill before signing it, calling it "a dangerous and unprecedented challenge to critical executive branch authority" but also said his team would work with the US Congress to "seek repeal of these restrictions".