It’s been nearly two years since I last reported on the military commission trial system at Guantánamo, which is less an oversight than a tacit acknowledgement that the entire system is broken, a facsimile of justice in which the defense teams for those put forward for trials are committed to exposing the torture to which their clients were subjected in secret CIA “black sites,” while the prosecutors are just as committed to keeping that information hidden.
I’m pleased to be discussing the commissions again, however, because, in a recent ruling in the case of “high-value detainee” Majid Khan, a judge ruled that, as Carol Rosenberg described it for the New York Times, “war court judges have the power to reduce the prison sentence of a Qaeda operative at Guantánamo Bay, Cuba, as a remedy for torture by the CIA.”
When I last visited the commissions, the chief judge, Army Col. James L. Pohl, who had also been the judge on the case of the five men accused of involvement in the 9/11 attacks since the men were arraigned in May 2012, had just caused a stir by ruling that confessions obtained by so-called “clean teams” of FBI agents, after the men were moved to Guantánamo from the CIA “black sites” where their initial confessions were obtained through the use of torture, would not be admitted as evidence. In a second blow, he announced his resignation.
While Col. Kohl was 67 years old, his successor, Marine Col. Keith A. Parrella, was just 44, although he evidently lacked his predecessor’s stamina, as he only made it to May 2019 before announcing that he would be taking up a new job commanding the Marine Corps Embassy Security Group in June.
Col. Parrella was replaced by Air Force Col. Shane Cohen, but he only lasted nine months, announcing in March this year that he was “retiring from active duty military in July,” and that his last day on the bench would be April 24. Col. Cohen said that he was leaving “based on the best interests of my family,” but it must surely also be connected to the fact that he allowed secret in-court communication between the CIA and prosecutors. In addition, his departure has thrown into doubt the January 2021 date he had enthusiastically set for the 9/11 trial to begin, 19 years and 4 months after the 9/11 attacks, and nearly 18 years since the alleged mastermind of the attacks, Khalid Shaikh Mohammed, was captured in Pakistan.
As NPR explained, Col. Cohen’s announcement was “the latest of many disruptions in the controversial and problematic case, which has cost US taxpayers at least $6 billion since 2002.” It also came “a month after another prominent Guantánamo legal figure effectively asked to quit.” In February, James P. Harrington, the lead attorney for Ramzi bin al-Shibh, one of the five men charged in the 9/11 trial, “requested Cohen remove him from the case, citing health issues and ‘incompatibility’ with his client.”
As a fourth judge is sought to take the poisoned chalice that is the judge’s chair in the 9/11 trial, another judge, Army Col. Douglas K. Watkins, who was appointed in October 2018 to replace Col. Pohl as the commissions’ chief judge, and who was also assigned to the case of Major Khan, delivered a ruling that, like Col. Pohl’s “clean team” ruling, has sent shockwaves through the prosecution team.
Khan, a hapless Al-Qaeda recruit, agreed to a plea deal in 2012, in which it was agreed that he would serve a further 13 years from the date of his sentencing if he testified in connection with the 9/11 trial. As Carol Rosenberg explained, Khan’s guilty plea in 2012 involved him accepting that he worked for Khalid Shaikh Mohammed, and “deliver[ed] $50,000 of Qaeda money that helped finance the 2003 bombing of a Marriott Hotel in Jakarta, Indonesia, that killed 11 people, and plotting other, unrealized terrorist attacks.” She added that the ruling “could have implications for other Guantánamo trials.”
However, Khan’s sentencing has been repeatedly delayed, because the 9/11 trial is stuck in pre-trial hearings, which does nothing to reward him for being what I described two years ago as “a reformed character, who has cooperated fully with the authorities, and ought to be regarded as having paid his debt to society, and to be able to resume his life.”
As Rosenberg also explained, “During his time in the CIA black sites, Mr. Khan says, he was hung from his wrists and kept naked and hooded to the point of wild hallucinations. He was held in darkness for a year, isolated in a cell with bugs that bit him until he bled. A Senate investigation disclosed that in his second year of CIA detention, the agency ‘infused’ a purée of pasta, sauce, nuts, raisins and hummus into his rectum because he went on a hunger strike.”
In his 43-page ruling, Col. Watkins “did not address the veracity of Mr. Khan’s claims. But he said that ‘taken as true, this mistreatment rises to the level of torture.’” He added that “he would decide the facts — and whether Mr. Khan would earn credit — based on evidence about what happened to Mr. Khan in CIA and US military custody during a presentation to his sentencing jury, a panel of military officers.” No date has been set for sentencing, but Col. Watkins also said that “Mr. Khan and his lawyers could make additional presentations beyond what the jury hears.”
Prosecutors, in contrast, “had argued that the judge had no such authority because, unlike in the court-martial cases that Colonel Watkins hears as an Army judge, there was no explicit provision for it in the manual for the commissions, which are a hybrid of military and civilian tribunals.” Col. Watkins, however, disagreed. As he explained in his ruling, “The defense has met their burden in this commission to show, by a preponderance of the evidence, that this military judge has the inherent authority to grant a remedy in the form of administrative sentencing credit for abusive treatment amounting to illegal pretrial punishment, especially when no other remedy is available.”
Responding to the ruling, Scott Roehm, the Washington policy director for the Center for Victims of Torture, said, “A military commission has taken a meaningful step toward a CIA torture victim receiving some type of modest reparation or remedy, a step that no other US government institution has taken.” He called the ruling “the most basic acknowledgment of the United States’ obligations, and Mr. Khan’s rights, under the Convention Against Torture,” adding, “The bigger test in this case will be whether Judge Watkins actually grants the pretrial punishment credit Mr. Khan deserves.”
The chief defense counsel, Marine Brig. Gen. John G. Baker, called it “a watershed decision.” As he described it, “It is about time that we see a means to hold the government accountable for the reprehensible torture of Mr. Khan and other commission defendants in a court a law. While it may seem obvious that being tortured by government actors should have some effect on a defendant’s ultimate sentence, the prosecution has disagreed every step of the way.”
As Rosenberg explained, prosecutors had attempted to argue that, “because he pleaded guilty, Mr. Khan had no right to seek the credit.” Col. Watkins, however, again disagreed, stating, “He did not bargain away or waive any credit for the conditions under which he has been detained at any point in time since his capture in 2003.”
Khan’s attorney, J. Wells Dixon of the New York-based Center for Constitutional Rights, explained that he read the judge’s decision as also “open[ing] the door to a claim that Mr. Khan was denied due process because he was not given access to a lawyer in his first year at Guantánamo.” He called the opinion “a recognition of the universal prohibition on torture that exists throughout all bodies of law, including the military commissions at Guantánamo,” and noted that the judge had quoted William Blackstone, described by Rosenberg as “the 18th-century British jurist whose treatises are a foundation of American law,” and who averred that, “in the dubious interval” between capture, detention and trial, “a prisoner ought to be used with the utmost humanity.”
There could hardly be a more poignant reminder of how, in Majid Khan’s case, the very opposite was true — and I very much hope that we will hear, in due course, that his sentence will be reduced.
I wrote the above article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.