Friday marks the 25th anniversary of the Sept. 11, 2001, terrorist attacks. At the Supreme Court, the justices will soon consider whether to again wade into the legal fallout from that terrible event.
Since May, the court has received three petitions for review related to the attacks, including two involving the federal government’s effort to withdraw from plea agreements reached with some of the men accused of planning the attacks. The men claim the federal appeals court that allowed the withdrawal did not have the authority to make that decision. The third petition comes from, among others, family members of 9/11 victims. Specifically, it addresses their effort to access $3.5 billion in frozen Afghan funds held at the Federal Reserve Bank of New York.
These appeals call to mind the many 9/11-related cases the Supreme Court took up in the first decade after the attacks. Below is a brief overview of some of those earlier disputes and a closer look at the issues raised in the new petitions.
Past 9/11 rulings
Although the government’s response to 9/11 raised a wide variety of questions, including on surveillance and war powers, Supreme Court cases related to the attacks focused primarily on the due process rights of individuals who were detained and accused of supporting terrorist groups and on newly created processes for prosecuting these detainees.
For example, in 2004’s Hamdi v. Rumsfeld, the justices considered whether the government had violated the Fifth Amendment’s due process clause by indefinitely detaining Yaser Hamdi, who was a U.S. citizen, and not giving him access to an attorney or scheduling a trial. Hamdi had been labeled an “enemy combatant” after he fought with the Taliban in Afghanistan during the U.S. invasion of that country after 9/11. The Supreme Court addressed whether Hamdi had a right to challenge that designation (which led to his indefinite detention) or if courts should, instead, defer to the government’s determination.
In a plurality opinion from Justice Sandra Day O’Connor, the court held “that although Congress authorized the detention of combatants” such as Hamdi, “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.” O’Connor’s opinion was joined in full by three other justices and in part by Justices David Souter and Ruth Bader Ginsburg, who agreed with the outcome of the case but concluded that Congress had not authorized Hamdi’s detention.
On the same day it handed down its ruling in Hamdi, the Supreme Court decided Rasul v. Bush, another case involving indefinite detention and the Fifth Amendment. The key difference was that this case involved noncitizens – specifically, two Australians and 12 Kuwaitis – who had been captured by the U.S. military during the “war on terror” and then transported to Guantanamo Bay, a naval base in Cuba. The court considered whether U.S. courts had the authority to consider foreign detainees’ efforts to secure their release or if, instead, as the government claimed, their jurisdiction did not extend to Guantanamo Bay.
The court, by a 6-3 vote, sided with the detainees. Writing for the majority, Justice John Paul Stevens explained that recognizing their right to challenge their detention in U.S. courts was “consistent with the historical reach of the writ of habeas corpus.”
The Supreme Court revisited issues concerning Guantanamo Bay two years later in Hamdan v. Rumsfeld. That case addressed the use of military commissions for trials at the base. Specifically, the court considered whether President George W. Bush had the authority to establish these commissions, holding that he did not. “[I]n undertaking to try [Salim Ahmed] Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction,” Stevens wrote in the majority opinion.
Months after the court issued its decision in Hamdan, Congress “re-established the military commissions President Bush had created” “by passing the Military Commissions Act of 2006,” as described by the National Constitution Center. “The law also barred foreign nationals labeled as ‘enemy combatants’ from challenging their detention in the Article III courts.” A Guantanamo Bay detainee, Lakhdar Boumediene, challenged the law, and the Supreme Court ultimately took up his case.
In June 2008, the court held in Boumediene v. Bush that the Military Commissions Act of 2006 “operates as an unconstitutional suspension of the writ” of habeas corpus and that U.S. courts had jurisdiction over Boumediene’s challenge to his detention. “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law,” wrote Justice Anthony Kennedy for the five-justice majority. “The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”
Plea agreement petitions
More recently, the justices have been asked to revisit the military’s approach to 9/11 prosecutions in petitions for review filed by men who allegedly participated in the planning and execution of the attacks. The first is from Khalid Sheikh Mohammad, who is accused of being the mastermind behind 9/11, and Mustafa Ahmed Adam al Hawsawi, and the second is from Walid Muhammad Salih Mubarak bin ‘Atash. The men seek to revive plea agreements they reached with prosecutors in July 2024 after spending nearly two decades in Guantanamo Bay.
Under the agreements, the men would plead guilty but avoid the death penalty and serve life in prison. News coverage from July 2024 noted that, among other things, prosecutors may have been seeking to avoid a messy trial expected to spotlight the men’s claims that they were tortured at Guantanamo Bay. Prosecutors described the deals as “the best path to finality and justice.”
However, two days after the plea agreements were announced, then-Secretary of Defense Lloyd J. Austin III moved to withdraw from them, explaining in a memo that ultimate authority over such agreements rested with him. Austin’s decision sparked a new legal battle, as Mohammad, al Hawsawi, and bin ‘Atash challenged his authority to withdraw from agreements that, according to them, had already been executed. Two military courts agreed that the agreements are binding, but, in July 2025, the U.S. Court of Appeals for the District of Columbia Circuit overturned those decisions.
In their petitions for review, the men assert that Lloyd did not have the authority to withdraw from the agreements and that the D.C. Circuit, in turn, did not have the power to grant such “extraordinary” relief to the federal government. They urge the court to reverse the D.C. Circuit and clear the way for the plea agreements to be reinstated.
In briefs responding to the petitions, U.S. Solicitor General D. John Sauer asks the justices to leave the D.C. Circuit’s decision in place, contending that it “properly held that it had jurisdiction.” He agrees with the three men that their cases have immense significance – but, he says, that’s a reason for the Supreme Court to deny the petitions, rather than a reason to take up one or both cases for argument. Prosecuting the three men “for the deadliest terror attacks on American soil is undoubtedly a matter of national significance,” and the D.C. Circuit “properly cleared the way for those prosecutions to continue,” Sauer wrote. “Far from warranting this Court’s intervention, the decision below ensured that the ‘grave’ ‘judgment about whether [the men] should face the death penalty’ lies in politically accountable hands.”
The justices are scheduled to consider these two petitions for review at their “long conference” on Sept. 28. We could know as soon as early October if the court will take up the issue for argument.
Accessing Taliban assets
The other recently filed 9/11 petition stems from efforts to hold the Taliban financially accountable for its role in the attacks. It asks the justices to address the Terrorism Risk Insurance Act, which was enacted in 2002 to resolve lingering uncertainty in the insurance industry around covering terrorism-related losses. The act provided federal funding support for insurers and sought to make it easier to enforce financial judgments against terrorists.
The case involves hundreds of family members of 9/11 victims, individuals who lost loved ones in other terrorist attacks, and insurers. Collectively, they “hold multibillion dollar judgments against, among others, the Taliban” for the support the group provided to al-Qaeda, which was primarily responsible for 9/11. The families and insurers assert that, under the TRIA, they have a right to draw from $3.5 billion in frozen assets belonging to the Afghan central bank held at the Federal Reserve Bank of New York, because the Afghan central bank – and the country of Afghanistan – is now controlled by the Taliban.
Last year, the U.S. Court of Appeals for the 2nd Circuit rejected this assertion, holding that the families and insurers cannot access the $3.5 billion because the money was frozen before the Taliban took control of the Afghan central bank. In their petition for review, filed last week, the individuals and insurance companies involved contend that the 2nd Circuit misapplied TRIA and urge the Supreme Court to hold that they have a right to the money.
“With billions of dollars at stake, the decision below denied relief to thousands of victims of the worst terrorist attack in the nation’s history—the very people Congress enacted TRIA for. The Court should grant certiorari to preserve the political branches’ emphatic commitment to fighting terrorism and compensating its victims,” the petition says.
Responses to the petition from the Taliban and Federal Reserve Bank of New York are due by Oct. 5. If these litigants do not request an extension, the justices will likely consider whether to take up this case at one of their private conferences this fall.
Ripple effects of 9/11
Just as 9/11 left an indelible mark on the United States, the day also changed the legal system, fueling disputes over – and leading to new rulings on – the due process rights of accused terrorists and the military’s process for prosecuting them, among other issues. More than two decades later, the Supreme Court remains caught up in these debates.
https://www.scotusblog.com/2026/09/911-and-the-supreme-court/
