How to Leave Guantánamo: Via a Plea Deal, or In A Coffin

Guantánamo briefly emerged from the shadows on Wednesday, when Majid Khan, a Pakistani national described as one of 14 “high-value detainees” when he arrived at Guantánamo in September 2006, after three and a half years in secret CIA prisons, appeared in public for the first time since his capture almost nine years ago.

Khan, now 32, pleaded guilty to five charges — conspiracy, murder and attempted murder in violation of the law of war, providing material support for terrorism and spying — as part of a plea deal designed to help him avoid spending the rest of his life imprisoned, and to help the US authorities to prosecute other “high-value detainees” also held in Guantánamo.

A resident of Baltimore from 1996 onwards, Khan was granted asylum in 1998, graduated from high school in 1999, and was working in computing when, in January 2002, he traveled to Pakistan, was introduced to Khalid Sheikh Mohammed, the “high-value detainee” who stated in his tribunal at Guantánamo in 2007 that he was the mastermind of the 9/11 attacks, and apparently became involved with al-Qaeda until his capture at his home in Karachi on March 5, 2003.

His charge sheet states that he conspired with Khalid Sheikh Mohammed to blow up fuel tanks in the US and to assassinate then-Pakistani President Pervez Musharraf, although neither of these plots materialized. In contrast, Khan did apparently take $50,000 from Pakistan to Thailand as funding for the terrorist group Jemaah Islamiyah, whose attack on a hotel in Jakarta, Indonesia in August 2003 killed eleven people.

However, he was already in US custody at the time of the attack — in a secret CIA prison, as he explained in his hearing at Guantánamo on Wednesday. He was held “illegally,” he said, adding, “I was kidnapped,” and although Carol Rosenberg in the Miami Herald noted that, in the courtroom, he “agreed that he made the plea voluntarily,” she also noted that he “seemed baffled by the conspiracy portion of the charges.”

“Even though I delivered the money,” he said, “I did not know where the money was going. I was not aware of the conspiracy.” Further diminishing his supposed significance, he “also appeared puzzled by the portion of his signed stipulation that said he had conspired with Osama bin Laden by being in league with al-Qaeda.” Explaining his misgivings about this particular charge, he said, “I never met him, obviously.”

In exchange for his cooperation, Khan’s sentence will reportedly be capped at 19 years, although he will not know for certain until four years’ time, when he is officially sentenced — allowing time for him to prove his willingness to testify against other prisoners — presumably including Khalid Sheikh Mohammed. Maybe this is fair, but it seems like yet another example of the kind of invented justice that is typical of the military commissions, especially when other factors are considered — Khan’s torture during his 42 months in secret detention, which, conveniently for the authorities, he has agreed not to discuss until after his release. He has also agreed never to try to sue those responsible for it.

Nevertheless, Khan’s torture is barely hidden, and also clearly makes the authorities jumpy. In the hearing, as the New York Times reported, when he said, “‘Basically, you’re saying I can’t sue the CIA or any agency for what happened to me,’ security officers briefly stopped the video feed and blocked sound from the courtroom with loud static.”

Absurdly, Khan was also required to acknowledge that, even after his sentence is served, “he could be held endlessly as an ordinary ‘enemy combatant’ for ‘the rest of my life.'” Asked how he felt about this, he told the judge, Army Col. James Pohl, “I’m making a leap of faith here, sir. That’s all I can do.”

Beyond Majid Khan’s immediate case, however, what Wednesday’s proceedings ought to do in addition is to remind those watching Guantánamo that 170 other men are still held, and that most of them are not being given the opportunity to cut deals to get out of the prison, even in 19 years’ time. This is not because they are regarded as particularly significant, like Khan. The interagency Guantánamo Review Task Force established by President Obama to review all the prisoners’ cases in 2009 only recommended 36 prisoners for trial — or plea deals.

89 other prisoners were cleared for release, but they remain held either because it is unsafe for them to be repatriated, and no other country has been found that is prepared to take them (including the US), or because they are Yemenis, and the administration and Congress both believe that it is appropriate not to release cleared prisoners to Yemen because of security concerns, even though this is nothing less than “guilt by nationality,” which ought to be unacceptable in a supposedly civilized society.

46 others are even more unfortunate, as they were designated for indefinite detention without charge or trial, on the distinctly dubious basis that they are too dangerous to release, but that there is insufficient evidence for them to be put on trial — or offered a plea deal — even though most of these men are obviously regarded as less significant than the “high-value detainees.”

Add to this the recent discussions about releasing a handful of significant Taliban prisoners as part of negotiations preceding the withdrawal of US forces from Afghanistan, and it’s clear that, although justice may be negotiable for those regarded as significant, it has disappeared completely for the low-level prisoners and those supposedly awaiting release, who have been sacrificed through fearmongering and political expediency.

The last living prisoner released from Guantánamo left in January 2011. Since then, two more have left — but in coffins. One died taking exercise, the other committed suicide. Moreover, without some willingness on the the part of those in power to amend this terrible stalemate, others — beyond the handful able to negotiate plea deals, in exchange for testifying against their fellow prisoners — will also find that the only way for them to leave Guantánamo is by dying.

Note: The courtroom sketch above is by Janet Hamlin, and is reproduced courtesy of Janet Hamlin Illustration.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.