Defense lawyer Wells Dixon took questions from the media on July 28.
The word “closure” has rarely been associated with the military commissions on Guantanamo Bay in recent years, particularly as the global pandemic slowed progress in a series of already long-pending cases. For detainee Majid Khan and the U.S. government, however, the goal of attaining resolution of his case took a significant step forward late last month when a military judge determined that Khan “knowingly and voluntarily” entered into a revised plea agreement that could lead to his release as early as February 2022. Khan is scheduled to be sentenced at the end of October.
“I guess we will be back in October, Mr. Khan, and hopefully we will be done and your life can proceed from that point on, OK?” the judge, Air Force Col. Mark Milam, said at the conclusion of the July 27 hearing.
“Looking forward to it, sir,” Khan replied in English.
“I bet you are,” Milam said. “And I know a lot of other people are here, too.”
After Milam recessed the brief proceedings, Khan, with closely cropped hair and dressed in a dark suit, shook hands and chatted amiably for several minutes with the lead prosecutor, Army Col. Walter Foster, and other members of the government team.
Khan’s hearing is the second to take place since the resumption of proceedings on the Guantanamo Bay Naval Base after more than 500 days of delays. The 41-year-old Pakistani, who lived in Baltimore for several years as a minor, was arrested in Pakistan in 2003 and transferred to Guantanamo Bay in 2006. In between, the CIA held him at overseas black sites and subjected him to abusive interrogative techniques, a number of which were documented in the Senate’s 2014 summary report on the agency’s “Rendition, Detention and Interrogation” program. He pleaded guilty in 2012 to charges related to his work as a courier for al Qaeda and has been cooperating with the government while awaiting sentencing.
His lead lawyer, Wells Dixon of the Center for Constitutional Rights, told reporters after the hearing that Khan agreed to fully cooperate despite his past torture.
“He has taken full responsibility for his actions,” Wells said. “And he’s never looked back.”
Khan’s legal team gained significant leverage last year when Milam’s predecessor, Army Col. Douglas Watkins, ruled that he had the authority to reduce Khan’s sentence “as a remedy for illegal pretrial punishment” based on his time in CIA custody. That set the stage for an evidentiary hearing at which defense lawyers could call witnesses with knowledge of Khan’s torture in order to argue for a lesser sentence.
“The U.S. government did not want that to happen,” Wells said.
As part of the deal reached in April, Khan agreed to move to vacate Judge Watkins’ favorable ruling for pretrial sentencing credit, and also to withdraw his motion to compel witnesses. In court July 27, Milam confirmed with Khan that he understood and agreed to these modifications of the 2012 plea agreement. Milam granted the defense motions to vacate and withdraw and said he may do written rulings to "make sure the record is clean."
Wells said after court that the decision to forgo the evidentiary hearing over CIA torture was “not a difficult” one for his client because the agreement provides the relief sought in the motion for pretrial sentencing credit. He added that Khan will be able to give a statement that describes his time in CIA custody at the October sentencing.
While a jury panel of military officers will be instructed to sentence Khan to 25 to 40 years, the Pentagon official overseeing the military commissions will not approve a sentence of more than 11 years if he finds that Khan has fully cooperated with the government, according to the agreement. The maximum sentence he can approve is 14 years.
“He has met his obligation completely,” Katya Jestin, a lawyer for Khan from Jenner & Block, told reporters. “There has never been any backpedaling or second thoughts by our client. By any measure, he’s successfully fulfilled his cooperation obligation.”
Khan will receive credit for the nine years served since his initial pretrial agreement in 2012, as well as a one-year credit given by Judge Watkins last summer as a sanction against the government for discovery violations. That queues up an early 2022 release if he receives an 11-year sentence.
Ian Moss, another of Khan’s civilian lawyers who worked on detainee transfers for the State Department under President Obama, said that the Biden administration should now be “diligently” exploring the process of finding a country in which his client can begin a new life. Khan has a daughter he has never met as she was born after his 2003 capture.
In their meeting with the seven members of the media who traveled to the hearing, Khan’s team discussed the potential implications of his case for other commissions, including the case against the five detainees charged with planning the Sept. 11 attacks. That case is set to resume Sept. 6 with a two-week hearing, though one team has filed a motion opposing the current schedule.
Wells said that the government’s acceptance of such a favorable sentencing agreement for his client suggests that it will never allow CIA witnesses to testify about torture to benefit a defendant’s case.
In the Sept. 11 case, defense lawyers have begun calling witnesses in support of their motions to suppress incriminating statements the defendants made to FBI agents on Guantanamo Bay in early 2007, after their arrival from the CIA black sites. Lawyers claim the confessions should be ruled inadmissible because of the past torture as well as mounting evidence of the FBI’s role in the CIA program.
In January 2020, the five defense teams examined Dr. James Mitchell, the contract psychologist who designed the CIA’s interrogation program, over nine days. His partner in the program, Dr. Bruce Jessen, testified for one day before the two-week hearing concluded. However, the government has opposed calling other CIA witnesses who participated in the abusive interrogations.
James Connell, the lead lawyer for one of the 9/11 defendants, Ammar al Baluchi, told reporters in a July 28 meeting on Guantanamo Bay that the government has drawn a line between CIA employees – who are off limits – and the contractors thus far made available.
“The government has denied either access to interview, investigate or call any actual CIA person as a witness,” Connell, who was on the Naval Base to meet with his client, said.
Connell said he would have preferred that Judge Watkins’ ruling allowing for sentence reductions based on illegal pretrial punishment not be vacated, as agreed to in the Khan deal, in the event the 9/11 case ever reaches a sentencing phase. He said, though, that the commissions operate under D.C. Circuit law “where a vacated opinion still carries persuasive precedential weight.” Connell said he was eager to call more witnesses for his suppression motion whenever the Sept. 11 case resumes.
The challenges of resuming in-person hearings on Guantanamo Bay during a pandemic spike were highlighted when two members of the media tested positive for Covid-19 upon their return from the Khan hearing. Both were fully vaccinated and had received a negative PCR test within 72 hours of the flight departure out of Joint Base Andrews, as required to make the trip.
In response to written questions, Dawn Grimes, the public affairs officer for the base hospital, said the base’s current plan “does not include quarantine requirement for vaccinated personnel or visiting media,” which had been in place prior to an easing of restrictions at the end of May. However, she said that vaccinated visitors will now undergo a Covid-19 antigen test after arriving on the base and then a second PCR test if the initial test is positive. Plans for how to deal with infected travelers were not yet finalized.
Grimes said that five base residents have tested positive for Covid-19 since July 20, two of them fully vaccinated; all were immediately placed in a 14-day quarantine after testing positive. She added that the base has had a total of 12 known cases since March 2020, not including the journalists who tested positive after leaving. Sixty-three percent of the base’s approximately 6,000 residents have been fully vaccinated, Grimes said, which is up two percentage points from mid-July.
About the author: John Ryan (email@example.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.