This Week at the Military Commissions: Majid Khan and the “Cluster Covfefe”

Quiet since September 2016, the military commission for Majid Shoukat Khan, a low-level al-Qaeda operative who pled guilty to all charges filed against him in 2012 and is cooperating with the government, reconvened for a brief afternoon session on July 17. On the schedule for the day were the voir dire of a new military judge, Army Col. Douglas Watkins, a reset of the trial schedule and sentencing date, and discussion of the status of two of Khan’s defense attorneys.

Judge Watkins, who replaced Army Col. Tara Osborn as judge earlier this year, began the session by naming for the record the members of the prosecution and defense teams. He then advised Khan of his right to detailed military defense counsel, currently Navy Lieutenant Commander Jared Hernandez, and civilian defense counsel if so desired and at no cost to the government. Khan, who is fluent in English and agreed to proceed without an interpreter, said he understood his rights and was currently satisfied with his defense team, led by civilian attorney J. Wells Dixon. Khan did, however, express frustration with the pace of the proceedings and the military commission system in general, which he referred to as a “cluster covfefe.”

Next, Judge Watkins stated his credentials and offered the parties the opportunity to question him and challenge his assignment to the case. The prosecution declined. Dixon jumped in on behalf of the defendant, asking a series of questions to establish whether Watkins could fulfill the role of impartial judge, including: what Watkins’s view was of his own role and the purpose of the military commission; whether Watkins had any prior interaction with anyone else involved in the case; whether he had communicated with anyone about the case and the underlying circumstances; whether Watkins had previously been involved in detainee operations and in what capacity; what Watkins knew about Khan and his allegation that he had been tortured while in CIA custody; whether Watkins was willing and able to remain on active duty for the duration of the case; and whether there were other circumstances that might create a conflict of interest or otherwise disqualify the judge.

At the conclusion of questioning, the defense expressed its satisfaction with Watkins’s assignment. Dixon did, however, object to Watkins’s assigned legal advisor—a military judge advocate—participating in the case, as the legal advisor previously supervised one of the prosecutors during an overseas deployment which involved detainee operations. Dixon suggested that the prior working relationship might create an apparent conflict of interest. Watkins said he saw no conflict on the current facts and overruled the objection, but noted the challenge for the record and said he would allow future challenges if the defense wanted to raise the issue again.

Next, the parties discussed Appellate Exhibit (“AE”) 025, a defense motion to compel and expedite resources for the defense team. The defense requested: 1) that Watkins order that Lt. Cmdr. Hernandez’s mobilization orders be extended to allow him to continue to defend Khan through sentencing; 2) that Khan’s former military defense attorney, now-retired Lt. Col. Jon Jackson, be permitted to rejoin the defense team on a part-time basis as a civilian hire; and 3) that a Defense Information Security Officer and an investigator be hired to assist the defense team. The government responded that the motion to compel was unnecessary because the defense was either not entitled to or had received, or at least received approval for, all resources requested. The judge indicated he would take the arguments under consideration and issue findings of fact and conclusions of law in the near future.

At the completion of the session, Judge Watkins put the commission in recess until a to-be-determined date. The parties agreed to enter a joint motion for a new trial scheduling order with a sentencing date of July 1, 2019, assuming fulfillment of the terms of the pretrial agreement.