Guantánamo’s Military Commissions: More Chaos in the Cases of Abd Al-Rahim Al-Nashiri and Majid Khan

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At Guantánamo, as I have been reporting recently, the military commissions, a broken trial system ill-advisedly dragged out of historical retirement for prisoners seized in the “war on terror,” have reconvened after a summer break — see my articles Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions and Chief Defense Counsel of Guantánamo’s Military Commissions Calls Them a “Poisoned Chalice,” a Betrayal of the Constitution and the Law. Also see my updated Full List of Prisoners Charged in the Military Commissions at Guantánamo.

That the commissions are a poor substitute for justice can readily be understood from the fact that only eight convictions have been secured, and four of those have subsequently been overturned by appeals court judges, and from the realization that the only ongoing cases are almost permanently deadlocked because, on the one hand, prosecutors seek to hide the fact that the men facing trials were tortured, while on the other those defending the men insist that fair trial cannot take place until the torture is openly discussed.

The failures of the commissions have also been made clear in a recent appeals court ruling in the case of Abd al-Rahim al-Nashiri, accused of involvement in the attack on the USS Cole in 2000, and in a hearing at Guantánamo for Majid Khan, who first agreed to a plea deal over four and a half years ago, in February 2012, but who has not yet been sentenced.

Al-Nashiri in the courts: a “lingering cloud of jurisdictional uncertainty”

Al-Nashiri, one of 14 “high-value detainees” held and tortured in CIA “black sites” and transferred to Guantánamo in September 2006, was referred for trial in September 2011 (after several inconclusive years in George W. Bush’s military commission  system), but pre-trial hearings have dragged on for five years with no sign of when his trial will actually take place. See my articles here, here, here, here and here, looking at pre-trial hearings in his case from 2011 to 2014. Since then, worryingly for the US and its credibility, the European Court of Human Rights condemned the US for implementing a program of extraordinary rendition and torture, and Poland for hosting a CIA “black site” from 2002 to 2003, and ordered the Polish government to pay €100,000 in damages to al-Nashiri.

Last year, al-Nashiri’s lawyers sought to have the entire Senate Intelligence Committee torture report issued, the Polish government asked the US not to execute him, and his case became mired in legal challenges. If you can navigate your way through complex legal issues, you can check out Steve Vladeck’s article from last June, “The D.C. Circuit’s Thoroughly Convincing Decision in al-Nashiri,” but I confess that I have been struggling to comprehend everything that has been going on, which leads me to suspect that, yet again, it reflects badly on the US’s credibility when it comes to the legitimacy of the military commissions.

What is certainly clear is that the legal challenges have been crawling through the courts for a year and a half, and that no definitive conclusion has been reached. On August 30, for example, as Human Rights First reported, a three-judge panel of the D.C Circuit Court — the appeals court in Washington, D.C. — denied al-Nashiri’s petition “to halt his trial by military commission,” although the court “failed to resolve the issue of whether or not the military commission, which can only try war crimes, has jurisdiction to prosecute al-Nashiri,” who “is accused of heading al Qaeda’s bombing of the USS Cole, which took place prior to 9/11 and therefore before the war with al Qaeda began.”

The article continued, “Declining to decide the important issue of whether al-Nashiri can even be tried by a military commission for the Cole bombing, the D.C. Circuit sent the case back to the military commission to be the judge of its own jurisdictional limits. As law professor Steve Vladeck noted, the D.C. Circuit’s failure to rule on the merits leads to a ‘lingering cloud of jurisdictional uncertainty.'”

At Guantánamo, where hearings resumed the week after the D.C. Circuit Court ruling, al-Nashiri’s defense attorney Richard Kammen stated that he had “decided to appeal the decision to the Supreme Court,” as Human Rights First noted, citing an article in the Miami Herald, and adding, “If the Supreme Court accepts the petition to review the case, this would be the first opportunity for the Supreme Court to rule upon the legal consequences of the Bush Administration’s torture program and the validity of the military commission system established by the 2009 Military Commissions Act.”

Elusive justice for Majid Khan

From this inconclusiveness to another: that of the sentencing of Majid Khan, the Pakistani “high-value detainee,” who, in a 2012 plea deal, pled guilty to conspiracy, material support, murder and spying — for delivering money to al-Qaeda operatives in Indonesia, which paid for the 2003 truck bombing of a Marriott hotel in Jakarta that killed 11 people and wounded at least 80 others, and plotting with the alleged 9/11 mastermind Khalid Sheikh Mohammed to conduct terrorist attacks in the United States.

Khan’s torture in CIA custody was revealed in shocking detail last June. In an exclusive article for Reuters, David Rohde explained how, “in 27 pages of interview notes his lawyers compiled over the [previous] seven years,” Khan “said interrogators poured ice water on his genitals, twice videotaped him naked and repeatedly touched his ‘private parts’ – none of which was described in the Senate report” (the executive summary of the Senate Intelligence Committee’s report on the CIA’s detention an interrogation program, which was released in December 2014). Khan also said that “[i]nterrogators, some of whom smelled of alcohol, also threatened to beat him with a hammer, baseball bats, sticks and leather belts.”

Khan is also one of the prisoners subjected to “rectal feeding” and “rectal hydration,” with the Senate report quoting a CIA cable which stated that “Khan’s ‘lunch tray,’ consisting of hummus, pasta with sauce, nuts, and raisins, was ‘pureed’ and rectally infused.” As Reuters explained, “The CIA maintains that rectal feedings were necessary after Khan went on a hunger strike and pulled out a feeding tube that had been inserted through his nose. Senate investigators said Khan was cooperative and did not remove the feeding tube.” reuters added, “Most medical experts say rectal feeding is of no therapeutic value. His lawyers [at the New York-based Center for Constitutional Rights] call it rape.”

The notes were cleared for release in May 2015 by the Pentagon’s “privilege review team,” which assesses whether any notes of exchanges between prisoners and their lawyers can be publicly released. Every word uttered in these exchanges is presumptively classified, and for the “high-value detainees” nothing was ever unclassified until after the Senate report was published. As Reuters described it, “Before the Senate report detailed the agency’s interrogation methods … CIA officials prohibited detainees and their lawyers from publicly describing interrogation sessions, deeming detainee’s memories of the experience classified.”

For his plea deal on February 29, 2012, in exchange for a guilty plea and an agreement to cooperate with prosecutors in the 9/11 trial, Khan was supposed to receive a 19-year sentence, although that, it was stated at the time, would not be delivered until four years after his trial.

And yet, at the end of February this year, Khan did not receive a sentence, because the trial in which he is supposed to testify — of Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks — is still stuck in a pre-trial phase that is moving with almost glacial slowness, as the defence teams seek to expose evidence of torture and prosecutors continue to try to hide it, and as the untested system reveals, every step of the way, that it is full of holes that are, to put it mildly, a profound obstacle to the passage of anything resembling justice

Two weeks ago, on September 14, Khan finally appeared again before a military commission, to discuss his sentencing, and also to withdraw his guilty plea for providing material support for terrorism, because, as a number of appeals court rulings from 2012 to 2014 have established, material support is not a war crime prosecutable by military commission, and had, in fact, been invented as a war crime by Congress.

In the hearing, presided over by Army Col. Tara Osborn, Khan “apologized … to the families of victims of his crimes, calling his actions as an al-Qaida operative ‘grotesque and pernicious,’” as the Baltimore Sun described it (he had studied in Baltimore County after coming to the US with his family in the 1990s).

He told Judge Osborn, “If it’s any consolation I would like to sincerely apologize to the family that I’ve either mentally or physically caused pain. I don’t get to come to court as often as possible … I’m using this opportunity to show some kind of compunction or regret.”

As the Baltimore Sun put it, “Khan also agreed to wait another three years before being sentenced while he continues to work with investigators,” and told Judge Osborn he was “comfortable with the delay.” As he put it, “I think it will probably help me.” One of his lawyers, Katya Jestin, noted that Appendix A of his pre-trial agreement allows for a sentence of 19 years (as opposed to the 25-40 years initially sought by the prosecution) if Khan provides “full and truthful cooperation amounting to substantial assistance.”

The Baltimore Sun also noted that federal appeals courts are still “weighing what jurisdiction the military commissions have over other charges” — in particular, the charge of conspiracy — adding that Khan “asked Osborn about the possibility that other charges would be dropped.”

“There’s also a charge of conspiracy,” he said. “If that gets dropped by the court of appeals … How’s that going to work? We’re going through the same process with the exact same method, right?”

As the newspaper described it, “Osborn said the question was relevant to the hearing. Then Khan answered it himself. ‘There’s a good chance that if that happens we’d do the same procedure,’ he said.”

The paper also noted that Khan “wore a dark suit, white shirt and pink tie to the proceeding,” and “has aged visibly since the last photos of him were released, in 2009. His hair is shorter, and a formerly trim mustache and beard have been shaved to stubble.” It was also noted that he “appeared to be in good spirits,” and “let out a quick chuckle after one set of questions he had for the judge were resolved.”

However, when he was given the chance to address the judge, he “adopted a serious tone,” delivering the apology noted above, and adding, “I made obviously some grotesque mistakes in my life. That’s why I end up here.” He concluded by saying that he hoped in future to help others avoid his fate — a sound idea that I hope is recognized by the authorities. “[M]y objective in future,” he said, “would be that I would really like to help the young — I call them the young jihadi wannabes.”

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 debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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. 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).

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