Last week I traveled to Guantanamo Bay to observe the military commission pre-sentencing hearings for Maryland resident Majid Khan. Most of the proceedings covered classified topics, so neither the defendant nor the public could be present, but the one half-day of hearings I was able to observe grappled with one of the most persistent issues at the Guantanamo military commissions: what to do with evidence of torture.
Watching through triple-pane glass and listening with a 40-second audio delay, I observed as Khan—sporting a suit, clean haircut, and glasses—entered the courtroom trailed by military guards. Had I missed his entrance, I would have assumed he was part of the defense team.
Khan’s attorneys point out that he is “Guantanamo’s sole high-value cooperator.” Yet despite his plea agreement, Khan is facing a contested sentencing. According to his attorneys, the prosecution has even threatened to withdraw its plea agreement.
After years of torture at the hands of the CIA, Khan pled guilty in 2012 to charges related to his role as a financial courier in the 2003 Jakarta Marriott bombing and nain a plot to assassinate the former president of Pakistan, Pervez Musharraf. While in CIA custody, Khan’s captors subjected him to a laundry list of torture and inhumane treatment. According to a Senate intelligence committee investigation report and notes from Khan’s interviews by his attorneys, the CIA hung Khan naked from a wooden beam for days at a time, submerged him in a tub of ice water while hooded and shackled, and ordered him to write a confession while being videotaped naked.
The “Torture Report” also describes how the CIA forced the pureed contents of Khan’s lunch, including hummus, pasta, nuts, and raisins, into his rectum. The CIA called this practice “rectal rehydration,” but medical professionals say it has no legitimate medical purpose. Khan’s lawyers say it was a form of rape.
Military Judge Col. Douglas Watkins presided over the pre-sentencing hearing, in which the parties addressed three motions from the defense, including one to access Brady material (in this case, pretrial evidence concerning Khan’s torture). This Brady material would allow the defense to ask for a more lenient sentence in light of the torture that Khan endured.
It is up to the military commission to weigh the government’s interest in protecting information related to the CIA torture program against Khan’s interest in showing evidence of what happened to him to the panel (military justice jargon for a jury-like body). The government argues that airing information about Khan’s torture would threaten national security. The defense lawyers argues that they are seeking material relating to Khan’s torture to put on a credible mitigation case during sentencing proceedings, but they are facing the full force of government resistance. Torture seems to be the third rail in the military commissions.
In an Article III court, deciding these motions would be straight-forward: there is a cooperating defendant and a pre-sentencing agreement. In the military commissions system, by contrast, the path is not so clear thanks to questions of extraterritoriality, claims of national security, and a severe lack of precedent.
These issues were on full display in the other motions discussed during the open hearing. Even though this iteration of the military commissions system is a decade old, it is unclear how constitutional rights apply to GTMO detainees. This week, the defense argued that the Fifth Amendment applies to Khan, while Judge Watkins was skeptical given that higher courts have not definitively decided this question. The hearing also touched on whether witnesses could be discussed in open session, due to claims of national security concerns.
Khan’s sentencing proceedings are scheduled for July 2019. Whether his defense team can obtain the requested Brady material or produce individuals from their potential witness list remains unknown. The week showed that even when it comes to the relatively simple issue of plea bargains, the military commissions are still fraught with issues.
By Holly Bauer