The US Government’s Entirely Predictable Problems with Resettling Guantánamo Prisoner Majid Khan

16.8.22

Majid Khan over the years: as a student in 1999, prior to his capture; shortly after his arrival at Guantánamo, after three and a half years of forture in CIA “black sites”; during the negotiations regarding his plea deal; and in recent years.

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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 difficult enough to get out of Guantánamo at the best of times, and considerably more difficult when the US authorities have to find a third country prepared to take in former prisoners, generally because it is unsafe for them to be returned to the countries of their birth.

In dozens of resettlement cases over the years, the US government has made resettlement additionally difficult by refusing to concede that the men in question might have been fundamentally insignificant by sharing assessment files from Guantánamo with the governments of these countries (fundamentally, the files released by WikiLeaks in 2011), which, more often than not, are full of lies about the prisoners, extracted from their fellow prisoners under duress, or through the promise of favorable treatment, to justify their lawless imprisonment (without any adequate screening at the time of capture) in the first place.

Last week, a new twist on these difficulties came to light in the District Court in Washington, D.C., as Justice Department lawyers sought to prevent a judge from addressing a habeas corpus petition submitted by the Pakistani national Majid Khan, who has been imprisoned at Guantánamo since September 2006, and who previously spent three and a half years in CIA “black sites,” where he was subjected to torture.

Finding a new home for Majid Khan

The problem for the US government is that Khan needs resettling, but is a convicted terrorist, making the task of finding a compliant country an even more uphill struggle than is the case with men charged and convicted of nothing, and merely portrayed as significant in their fundamentally worthless intelligence files.

Khan’s conviction is a fact, but the story behind it ought to thoroughly mitigate any security fears countries approached by the US might have regarding resettling him.

In 2002, at a low point in his life, when he was distraught at the death of his mother, Khan, a legal US resident who had grown up in Baltimore, was preyed on by Al-Qaeda sympathizers in his own family on a visit to Pakistan, and ended up couriering money that was used to finance a terrorist attack, in which civilians were killed. However, from the time that he was first seized, in March 2003, Khan sought to cooperate with the US authorities, having recognized that what he did was wrong, and seeking to make amends.

Instead, the CIA decided to torture him, and, even after his transfer to Guantánamo in September 2006, the abuse continued. It was only when he was finally able to meet his lawyers, at the Center for Constitutional Rights, that negotiations with the US authorities began, whereby Khan would thoroughly cooperate, by providing evidence in other terrorism-related cases, in exchange for receiving a plea deal, which would guarantee his release ten years later, in the military commission trial system that the Bush administration dragged out of the history books in the wake of the terrorist attacks of September 11, 2001. That plea deal was agreed at the end of February 2012, and last October Khan’s sentencing finally took place, leading, as planned for ten years, to a sentence that ended on March 1 this year.

Despite having had ten years to prepare for this moment, however, the US authorities had failed to find — or, I suspect, to even look for — a third country prepared to offer him a new life, which is necessary because Khan can’t be sent back to Pakistan, to be reunited with his wife and daughter, because his life would be in danger as a result of his extensive cooperation with his captors.

In their filing challenging Khan’s habeas petition, the Justice Department pointed out that, since Khan’s sentence ended, “the Department of State has engaged eleven countries on the possibility of accepting Petitioner for resettlement.”

The Justice Department’s lawyers stressed that the government was “giving a high priority to effecting [Khan]’s transfer because … it is in the Government’s national security interests to encourage cooperation by individuals accused of acts of terrorism or other offenses triable by military commission.”

This is why, while insignificant prisoners at Guantánamo, approved for release through internal administrative processes, can languish there for years without actually being freed, the handful of individuals convicted in the military commissions, mostly through plea deals, have generally been released when were told that they would be, as stipulated in their plea deals, and it remains significant now, as the US is actively engaged in discussions regarding plea deals with some of the ten men (out of the 36 still held) who are currently facing charges, and one of the ten, Abd al-Hadi al-Iraqi, recently finalized a plea deal that should see him being released in two years’ time.

Never before, however, has a third country had to be found for one of the handful of men convicted in the military commissions, and while it’s evident from Khan’s story that he is a thoroughly repentant individual who wouldn’t pose a security threat to anyone, it’s also understandable that potential resettlement countries might worry about how any decision to resettle him would be received by the most alarmist parts of their media or their political establishments.

The irony, of course, is that, as a cooperating witness, Khan would, in normal circumstances, have been put in a witness protection program in the US, given a new identity, along with his family, and helped to establish a new anonymous life, but because his story involves Guantánamo, all the normal rules have been jettisoned. As the Justice Department lawyers explain, “release into the United States [is not] possible because US law expressly prohibits the use of funds for the transfer of detainees from Guantánamo Bay to the United States.”

That ban on bringing Guantánamo prisoners to the US mainland for any reason — for urgent medical care that is impractical or impossible at Guantánamo, or for trials or ongoing imprisonment, for example — has been part of the annual National Defence Authorization Act (NDAA) for ten years now, since Republicans gained a majority in Congress in the first midterm elections under President Obama and cynically introduced a raft of onerous measures relating to Guantánamo, and it has, sadly, been maintained ever since, as Democrats have not, since 2010, had a majority in both the Senate and the House of Representatives.

Now, however, it is not beyond reason to suggest that an exception will need to be made for Majid Khan if no other country can be found that will take him in, to avoid the US falling foul of the law in the only place it operates at Guantánamo — in relation to convictions and plea deals in the military commissions.

The government’s case

Because of the government’s ongoing efforts to find a third country to offer a new home to Majid Khan, the Justice Department’s lawyers urged Judge Reggie B. Walton, hearing the case, not to grant his petition, in which he argued that, “if [he] is not released within 30 days, the Court should order a hearing to address his conditional release into the Migrant Operations Center operated by the State Department and the Department of Homeland Security at Naval Station, Guantánamo Bay, or release him into the custody of his family in the United States.”

To be fair to the government, neither of those options is possible, given current laws, and it is clear that serious efforts are being made to find a third country for Khan and his family, although some of the arguments that took place during the hearing served not to reinforce the government’s case, but simply to highlight the predicament in which Khan still finds himself.

In response to Khan’s claim that his current conditions of detention are “essentially solitary confinement,” as Carol Rosenberg described it for the New York Times, Army Col. Matthew Jemmott of the Army, the prison’s warden, claimed in an affidavit that, instead, he “socializes with FBI agents, prison guards, military lawyers and top prison officials during ‘religious feasts, social meetings and meetings regarding detention-related issues.’”

Col. Jemmott also said that Khan “was entitled to quarterly calls with family through a prison program called the Detainee Interactive Call Experience, but that he had declined his last two offers.” Rosenberg added that the program — DICE — “has been described in court as stop-and-go, intelligence-monitored conversations. A security officer listens to what the prisoner wants to say on the call and decides on the spot whether to release the audio to the family member. The relative’s response is also on a censored delay.” No explanation was given about why Khan has “declined his last two offers,” but it may be reasonable to assume that he is despondent at still being held over five months after his sentence ended.

In addition, as Rosenberg also explained, Justice Department lawyers also stepped into profoundly dubious territory, claiming that, regardless of the end of his sentence, his ongoing imprisonment “was lawful because ‘hostilities with Al Qaeda remain ongoing,’” and “cited the drone strike by the CIA last month that killed the movement’s leader, Ayman al-Zawahiri, in Kabul, Afghanistan, as proof that the war had not ended.”

That was a low blow, as it has always seemed profoundly unjust to suggest that anyone held at Guantánamo can continue to be held, even if they have been tried and convicted and have reached the end of their sentence, as the Bush administration argued from the prison’s early days, and it will, presumably, do nothing to reassure Majid Khan that the government is, as it claims, doing all it can to find him a new home.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), 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 you can watch it online here, via the production company Spectacle, for £2.50).

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 struggle for housing justice — and against environmental destruction — 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.

10 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, looking at the problems faced by the US government in finding a third country prepared to offer a new home to Guantanamo prisoner Majid Khan, whose sentence for involvement in terrorism ended on March 1 this year.

    Khan is thoroughly repentant about his actions, and has cooperated with the authorities on other terrorism-related cases, but it remains uncertain whether another country can be found that will take him in, as it is unsafe for him be repatriated to Pakistan.

    In response to a habeas corpus petition submitted by Khan’s lawyers, the government argues that it has approached eleven countries in its efforts to locate a new home for him (and his wife and daughter), and requests more time to pursue these options.

    As a cooperating witness, he should, it seems to me, be resettled with his family under a new identity in the US, but that is currently illegal under provisions in the annual National Defense Authorization Act introduced by Republicans during the Obama presidency, and maintained ever since.

    Meanwhile, of course, the clock is ticking, and the longer the wait, the more damage is inflicted on the credibility of the government when it comes to the viability of plea deals at Guantanamo. A solution needs be found, and soon.

  2. Andy Worthington says...

    Gail Helt wrote:

    Thanks for this, Andy. The government has totally tied its own hands and made the pursuit of actual justice nearly impossible.

    As an aside, while I’d be fine with Mr Khan relocating to my town, or even my neighborhood, so many Americans would fall back into their familiar prejudices because of the GTMO stigma, and I fear he would never be safe. His photo is very distinctive — a new name would never hide his identity.

  3. Andy Worthington says...

    Good to hear from you, Gail. I’m obviously hopeful that a third country will be found for Majid Khan and his family, very probably in exchange for cash/favors, but I thought it was worth raising the US resettlement idea, if only to allow us all to reflect on how hysterical the response would be from some Republican lawmakers and from the right-wing media if it was ever to be proposed by the Biden administration.

    Some of us recall how shameful it was back in 2009, when plans to bring some of Guantanamo’s Uighurs to live in Virginia were shut down by Obama as soon as Republican lawmakers started making threatening noises. That was such a shame, as it would have done so much to puncture the hysteria about “terrorists” that is so easy to stir up when all former Guantanamo prisoners are banned from setting foot on US soil for any reason.

  4. Andy Worthington says...

    Meagan Murphy wrote:

    I say let him come here to the US asap.

  5. Andy Worthington says...

    And yet, Meagan, at present, under provisions inserted by Republicans into the annual National Defense Authorization Act (NDAA) over the last ten years, no Guantanamo prisoner can set foot on US soil for any reason. That would need to change first for it to even be possible.

  6. Andy Worthington says...

    Gail Helt wrote, in response to 3,above:

    You’re right, Andy. The vast majority of men who have endured Guantanamo are incredibly good people who anyone would love to call “neighbor” — if they knew them.

  7. Andy Worthington says...

    It’s been reassuring, Gail, that when the pandemic hit, we started holding Zoom events attended by former prisoners who could speak directly US audiences, with Mansoor Adayfi and Mohamedou Ould Salahi both effortlessly able to cut through the prevailing black propaganda in the US, but it remains shameful that so much of that propaganda – some of it emanating from within the government – is still fundamentally unchallenged, like the risible DNI recidivism reports that are still wheeled out every year, with their implausible “re-engagement” rates, and their evidence-free statistics.

    The latest report is here: https://www.dni.gov/files/documents/Newsroom/7-9-22_Report_Summary_GTMO_Reengagement_U_CR-OGC-Final.pdf

  8. Andy Worthington says...

    When Susan Hall shared this on Facebook, she wrote:

    “Khan, a legal US resident who had grown up in Baltimore,” Andy Worthington writes. This surprised me because I knew the US had sent US citizen John Lindh to the CO prison after wrapping him in barbed wire & then leaving him in a coffin for a time. So I thought there were no more US prisoners in Guantanamo.

    If he is a US citizen he should be allowed in his country now. After all we have the CIA agent who executed a man in the middle of the day sitting in his car in Pakistan living right next door in Boulder, CO; whom Clinton got home to the US without the trial that country wanted. I personally believe we need to defund the CIA & use those funds for food for the hungry.

  9. Andy Worthington says...

    Thanks for sharing this, Susan, and for your thoughts. Khan was never a US citizen, but he was a legal resident in his teenage years, although, as the government explains in its filing, “Although Petitioner contends he ‘has legal status and other substantial voluntary ties to the United States,’ in reality, Petitioner’s actions render him inadmissible to the United States. Petitioner is a Pakistani citizen who entered the United States illegally in July 1996. In July 1998 Khan was granted asylum status. On December 27, 2001, he was issued a travel document that allowed him to travel and return to the United States. That document was valid for one year. On January 4, 2002, he departed the United States and remained outside the country following the expiration of the travel document that would have permitted his lawful return.”

    The government adds, “Records of United States Citizenship and Immigration Services (‘USCIS’) also reflect that on January 11, 2022, due to Petitioner’s criminal convictions and for engaging in terrorist activity, USCIS denied his prior application for adjustment of status to that of a lawful permanent resident.”

    That said, as I explain in my article, if no other country can be found that is prepared to offer him a new home, the government will have to consider how to resettle him in the US, although they’ll no doubt be doing all they can to find a pliable third country instead.

  10. Andy Worthington says...

    For a Spanish translation, on the World Can’t Wait’s Spanish website, see ‘Los problemas completamente predecibles del gobierno estadounidense con reubicar al prisionero de Guantánamo Majid Khan’: http://www.worldcantwait-la.com/worthington-los-problemas-completamente-predecibles-gobierno-eeuu-majid-khan.htm

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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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