This Week at the Military Commissions, Special Majid Khan Edition: “The Whole Enhanced Interrogation Thing”

Yes, we’re back at the military commission, but no, there’s no Abd Al-Rahim Al-Nashiri. There’s no KSM or Ramzi Binalshibh either.

We’re here today featuring a blast from the past. Remember Majid Shoukat Khan, the low-level Al Qaeda operative who pled guilty to all charges filed against him in 2012? Actually, I didn’t either. Khan’s time in court on Wednesday was only his second public appearance in the decade he has been detained at Guantanamo, and the first since he agreed to enter a guilty plea four years ago.

With all that in mind, you can imagine there was some anticipation here at Lawfare HQ over the announcement that a hearing in the Khan case had been scheduled for Wednesday. Given that Khan had already pled guilty to all charges, what could possibly be happening now?

Not all that much, it turns out. With Army Colonel Tara Osborn presiding as military judge, the court convened to allow Khan to withdraw his guilty plea for a charge that’s no longer considered a war crime and to clean up a few related administrative matters.

Judge Osborn begins by reviewing those present for the defense and prosecution. For the government, we have William Schneider and Major David Abdalla. For the defense, Khan’s lineup includes Lieutenant Colonel Jon Jackson, Katya Jestin, Wells Dixon, Lieutenant Tia Suplizio, and Natalie Kay Orpett. Schneider, Abdalla, Suplizio, and Orpett are all new to Khan’s case, so Judge Osborn has them run through their qualifications before giving them her seal of approval.

Judge Osborn then moves on to questioning the accused, confirming that Khan—who grew up in Baltimore—is fluent in English and won’t need an interpreter for the proceedings. “No ma’am,” says Khan. “I’m pretty fluent.”

That’s all we get before the court heads into a brief recess for a closed 505 session, for which Khan is returned to his holding cell. Judge Osborn reconvenes the court an hour and a half later with Khan back in the courtroom.

Judge Osborn, who is new to the case, invites both the defense and prosecution to question her on her biography. The government declines, but Dixon—who works for the Center for Constitutional Rights, which is representing Khan—jumps right in, asking if the judge is familiar with the Center’s work on Guantanamo cases; she hasn’t. He then asks whether Judge Osborn has read the SSCI “torture report;” she hasn’t. Does she know that “Mr. Khan’s torture is described at length in that report?” She doesn’t. Has she ever been involved in a case in which an accused was tortured by the CIA? She hasn’t.

Dixon then gets into a back-and-forth with Judge Osborn over her role as military judge in the court-martial of Army Major Nidal Hasan, the Fort Hood shooter. The court-martial sentenced Hasan to death. Judge Osborn says that she doesn’t believe “the case had any type of personal residual impact on me” and disclaims any antipathy towards Khan on the basis of her work on Hasan’s case.

With that out of the way, Judge Osborn takes up Khan’s withdrawal of his guilty plea as to Charge IV, Material Support for Terrorism. For the defense, Jestin explains that the Khan’s team is withdrawing the plea because, under the D.C. Circuit Court of Appeals’ 2014 en banc decision in Al-Bahlul, material support no longer constitutes a war crime prosecutable by military commission. Schneider chimes in for the prosecution and tells Judge Osborn that if she accepts Khan’s withdrawal of his plea, either the government or the defense will move to have Charge IV dismissed under Al-Bahlul.

Assuming that Khan withdraws his guilty plea to the material support charge, the pretrial agreement has to be modified accordingly. (Khan’s original pretrial agreement and associated documents are available here.) Judge Osborn reviews the document and confirms that Khan understands the changes, noting that the revisions provide for a delay of seven years in sentencing proceedings. (The sentencing had originally been postponed for four years.) Since Khan pled guilty in 2012, sentencing will now take place in 2019—at which point Khan will have been detained in Guantanamo for 13 years. If he’s fazed by this delay, he doesn’t show it. He’s been here a long time already, after all.

Schneider reviews the possibilities for Khan’s sentencing. The original pretrial agreement specified a sentence range of “no less than 25 years and no more than 40 years,” though a 2012 Joint Motion by the prosecution and defense indicates that the Convening Authority agreed to cap Khan’s sentence at 25 years. For the defense, Jestin notes that Appendix A of the pretrial agreement allows for a sentence of only 19 years if Khan provides “full and truthful cooperation amounting to substantial assistance.” Judge Osborn makes sure Khan understands that despite his decision to withdraw his guilty plea to Charge IV, the sentencing options remain unchanged.

After confirming that Khan’s decision to withdraw his guilty plea was made willingly and has not been coerced, Judge Osborn grants both the request to withdraw the plea and the motion to dismiss Charge IV.

Judge Osborn now turns to several administrative matters regarding scheduling and discovery. According to Schneider, the government has no plans to introduce classified evidence during the discovery process. The defense also notes that Colonel Jackson is scheduled to retire in November and has submitted a request to withdraw from the case, but Khan wants it on the record that he does not consent to Jackson’s withdrawal.

With Judge Osborn’s permission, Khan now makes a statement to the court:

First of all, thanks to Allah, the omnipotent and omniscient, to give me courage to do the right thing and took me away from prevarication path to the guidance and I'd like to use this opportunity to show some kind of—well, it's very imperative and incumbent for me to show some kind of compunction to the families that my actions, my grotesque and pernicious actions, may have caused some understandably nonvenal pain to the family; and if it's any consolation, I would like to sincerely apologize to the family that I've caused, whether physically or mentally, pain.

And it's not like, you know, I don't get to come to court as often as possible, so this is the—probably the second time I'm addressing court, so I'm using this opportunity to just to show some kind of compunction or regret; and actions speak more than words and that's what I believe in and that's what I'm trying to show by my cooperation that if that can ameliorate some of the pain for the family and that was my whole objective to just use few minutes to show some of the—a true penitence by action—so they can—will ask Allah to forgive me and maybe they can—Allah can put forgiveness for me in their heart.

And, it's, you know, they say it's not how you start but how you end the game, so I made obviously some grotesque mistakes in my life. That's why I end up here. And—but I'd like to move on, even the whole—I am not honestly interested in the whole enhanced interrogation thing, method they used. I just want to move on, as like the President says, Let's move on, and—but I just—my objective in future would be that I would really like to help the young—I call them the young jihadi wannabes.

Khan closes with a plea for transparency, asking that his attorneys be allowed to see his medical records and “all the things I need for my defense.” He has trouble putting his faith in the military commissions process if he feels there’s “something sub rosa going on.”

That’s all for Majid Khan’s third ever public appearance at Guantanamo Bay. Sentencing hearings are set to proceed in 2019, three years down the road.