3-1-2012By Melina Milazzo
Advocacy Counsel, Law and Security Program
After spending nearly a decade in U.S. custody in CIA black sites and the prison at Guantanamo Bay, Majid Shoukat Khan pled guilty before a military commission to conspiracy, murder, attempted murder, providing material support for terrorism, and spying. This is the seventh conviction since the beleaguered military tribunal was created 10 years ago, and the only conviction of a so-called “high-value detainee.” In a plea deal, Khan agreed to provide testimony against fellow Guantanamo detainees in exchange for a lighter sentence. While this might be touted as a win-win for the U.S. government and Mr. Khan himself, it’s ultimately a loss for the integrity of the American justice system.
Majid Khan, a Baltimore resident, was captured in Pakistan in 2003 and spent 3 ½ years in CIA-run black sites before landing in Guantanamo in 2006. He alleges that he was tortured and became so despondent in Gitmo that he attempted suicide by chewing through an artery in his own arm. He is accused of working with al Qaeda to plot post-9/11 attacks against the United States, attempting to assassinate Pakistani President Pervez Musharraf, and delivering money for al Qaeda associates that ultimately helped pay for the bombing of the J.W. Marriott in Indonesia.
During his hearing, Khan, speaking perfect English, accepted responsibility for committing certain acts but stressed that he never met Osama bin Laden, did not know that the money he carried would be used to finance the bombing of the Jakarta hotel, and never took a pledge or oath to join al Qaeda. While Kahn was captured in March 2003 before the August 2003 bombing occurred, he agreed that he never withdrew from the “conspiracy” and noted that even if he wanted to, being “illegally kidnapped” by the CIA would have made withdrawing impossible.
He will be sentenced in four years and could face up to 25 years in prison. He could also be detained indefinitely even after serving his sentence. Even if Khan joins what his military defense counsel LTC Jon Jackson called “team America” – by fully cooperating with the government and acting as a model prisoner – he can still remain imprisoned after he serves his sentence. When Judge James Pohl asked Mr. Khan whether he understood this possibility, Khan responded that he did but that he was “making a leap of faith … that’s all I can do.”
At a press briefing after Khan’s hearing, General Mark Martins, chief prosecutor for the military commission, remarked that “military commissions would need to decrease the level of legal uncertainty in order to develop into a more effective part of our national security and justice institutions,” adding, “[t]he reforms incorporated into the 2009 Military Commissions Act, resulting from action by all three branches of our government and review by our federal courts, have reduced the legal uncertainty of the system and made it more predictable in its outcomes.”
But Khan’s plea deal suggests the opposite: trying cases before the military commission system remains risky and it is still uncertain whether detainees will face a fair trial.
The U.S. military commission system, now in its third incarnation, faces lengthy litigation over the legality of trying individuals for offenses that do not actually constitute war crimes, the potential ex post facto problems with prosecuting conduct not considered criminal until the passage of the Military Commission Act, and the scope and meaning of the rule and procedures applicable during trials.
Pleading out of this inherently flawed system may be in the best interest of the Government as well as Khan, but it’s not in the best interest of justice.
The policies of detention, interrogation and trial at Guantanamo have negatively impacted the reputation of the United States and impaired our ability to lead the world in counterterrorism operations. Guantanamo has become a symbol of injustice and this country’s willingness to set aside its ideals.
Khan’s plea deal should mark the beginning to the end of Guantanamo. As we wind down the war in Afghanistan, we should learn from the mistakes of Guantanamo and recommit ourselves to our proven federal courts, local law enforcement, and the Constitution, which, after all, has served as a beacon of justice for more than two hundred years.