Military Judge Rules That Terrorism Sentence at Guantánamo Can Be Reduced Because of CIA Torture

24.6.20

Guantánamo prisoner Majid Khan, in a photo taken at the prison in 2018, and the military commissions judge, Army Col. Douglas K. Watkins, who has ruled that his sentence, based on a plea deal agreed in 2012, can be reduced because he was tortured in “black sites” by the CIA.

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I wrote the following 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.

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.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or here for the US, or you can watch it online here, via the production company Spectacle, for £2.55), and for his photo project ‘The State of London’ he publishes a photo a day from seven years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

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Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

15 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, an important update from the military commissions at #Guantanamo, which are normally a ‘Groundhog Day’ of broken justice.

    However, in the case of Majid Khan, a “high-value detainee,” a judge recently ruled that he should be allowed to have his sentence reduced because of the torture he was subjected to in CIA “black sites” between the time of his capture, in 2003, and his arrival at Guantanamo in 2006.

    Khan agreed to a plea deal in 2012, on the basis that he would testify in the 9/11 trial, and, in particular, against Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks with whom he was briefly involved.

    This is the first time that a decision involving a reduced sentence because of torture has been taken, and it is to be hoped that Khan will now be released before the previously agreed date of 2031.

  2. Andy Worthington says...

    Barbara Bendzunas wrote:

    Should not be ‘can be’, should be will be,

  3. Andy Worthington says...

    Agreed, Barbara, but we’ll have to wait and see. The sentencing jury will decide, although shamefully, I think, there’s still no date set for the sentencing to take place.

  4. Andy Worthington says...

    Susan McLucas wrote:

    Really good news! Thanks for staying on top of all this, Andy!

  5. Andy Worthington says...

    Thanks, Susan. Great to hear from you.

  6. Andy Worthington says...

    Asiya Muhammad wrote:

    So wait, he’s going to testify against a man who has been tortured 100s of times to make him “confess” aka repeat the CIA/USA narrative fed to him while under torture.
    Others were tortured into repeating this accusation from the CIA/US gov against KSM in the first place.
    And now they’re offering this man Khan his freedom, if he testifies against someone, after he has also been tortured into submission to make him repeat said CIA narrative.
    Is everyone all good with this kind of “justice” 😳 how is this is “good news”??

  7. Andy Worthington says...

    Asiya Muhammad wrote:

    All This means is people can be tortured as a means to frame someone, and they can also be offered freedom from torture if they agree to bear witness against those who were tortured. What happened to proof and evidence? No one’s testimony gained under torture can be used as any kind of proof in a court of law.

  8. Andy Worthington says...

    I think the problem is the torture that took place initially, Asiya, which has poisoned any ability on the part of the US to deliver anything resembling proper justice in the cases of any of these men. That said, if Khan did work for KSM and has since recognised that what he did was wrong, and wants to make up for it by testifying against him, I can’t really complain about that process, although as you suggest, there’s still a problem because torture permeates all these stories.

  9. Andy Worthington says...

    Asiya Muhammad wrote:

    Yes exactly, nothing Khan claimed under torture can be believed. Nothing Khan claims as a means to escape years of continued incarceration and torture, whether physical or mental, can be accepted as a means to lawfully convict a person in a court of justice either.

    The US have pushed a narrative and have tortured thousands, to get someone to repeat their narrative, because that’s exactly what torture has been used for for at least half a millenia. This is no different to the mediaeval witch trials when you look at it.

  10. Andy Worthington says...

    But what is the US government supposed to do with the “black site” prisoners given that the torture took place, Asiya? It’s already quite clear that the CIA is happy for the proposed trials to never take place, so that all those held in the “black sites” will stay at Guantanamo forever, including Majid Khan, even though he has presented a coherent case for having worked for KSM, but having changed his mind about that involvement.

  11. Andy Worthington says...

    Asiya Muhammad wrote:

    Anyone who is actually guilty of anything has surely been punished enough through some of the most horriffic torture the world has witnessed in the last 50 years.
    They have also more than served their time. Enough is enough.
    People do tend to “change their mind” on stories fed to them, while they are being horrifically tortured. The only way to make it stop is to agree to any and everything.

  12. Andy Worthington says...

    Asiya Muhammad wrote:

    What we really should be concerned about at this point is holding the US government, the architects of torture and their agents accountable for what they have done to people. There has to be justice. Even those released are until now suffering horribly in so many ways, they have no justice, and they are still being mentally tortured. No one who is left there is enjoying their life now.

  13. Andy Worthington says...

    Agreed, Asiya, but it’s such an uphill struggle. Even if Trump is removed in November and the Democrats win, it will be a fight to get Guantanamo closed, and a fight to oblige the US government to take responsibility for those released but still not allowed to live freely. I keep floating the idea of creating an organisation to push for an end to the “enemy combatant” stigma, and to call for reparations, but I can’t seem to get it off the ground.

  14. Andy Worthington says...

    Asiya Muhammad wrote:

    Yes sadly that’s probably the upshot of it all, and really hats off to you for continuing and trying, unfortunately many of the general public are Guantanamo weary 😔 much like reparations for the torture and atrocities in Kenya carried out by the British, it will be another 50 years before any justice is seen, if ever.

  15. Andy Worthington says...

    “Guantanamo weary”, Asiya – like it’s something someone might have as a slogan on a T-shirt. A line by T. S. Eliot has stayed with me since I was a student – “Humankind cannot bear very much reality.”

    Meanwhile, those of us who can bear to look at reality head-on are marginalised as being too heavy or too serious – if we’re lucky enough to evade censure as being unpatriotic or even as terrorist sympathisers – and the abuse and the legacy of that abuse continues.

    And yet, even if it’s against hope, those of us opposed to the existence of Guantanamo, and aware of the indelible marks it leaves on the lives of those brutalised there, must continue to call for its closure, and for, one day, there to be reparations.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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