Under a deal with the military court, Majid Khan, who has admitted being a courier for Al Qaeda, will give up his chance to call witnesses to his torture in return for being released as soon as next year.,
Guantanamo Detainee Agrees to Drop Call for C.I.A. Testimony
Under a deal with the military court, Majid Khan, who has admitted being a courier for Al Qaeda, will give up his chance to call witnesses to his torture in return for being released as soon as next year.
WASHINGTON — A detainee at Guantanamo Bay has agreed to a deal intended to lead to his release in the next few years in return for giving up the right to question the C.I.A. in court about its torture program, United States government officials said.
The deal, negotiated by the Pentagon official who oversees the military commissions that serve as a court for some detainees, was reached in recent weeks, and comes as a number of those who have been charged at Guantanamo are seeking to cite their abuse at the hands of the C.I.A. as part of their defense.
Under the deal, the prisoner, Majid Khan, 41, who has pleaded guilty to serving as a courier for Al Qaeda, would complete his prison sentence as early as next year and no later than 2025 and then could be released to another country, assuming one will take him, according to people who have seen the terms or are familiar with its details.
In exchange, Mr. Khan will not use his sentencing proceedings to invoke a landmark war court decision that allowed him to call witnesses from the C.I.A.’s secret prison network to testify about his torture.
The arrangement means that the C.I.A. for now will avoid a further accounting in court for its use of what it called “enhanced interrogation techniques” under the Bush administration after the attacks of Sept. 11, 2001.
Mr. Khan, a citizen of Pakistan who went to high school in Maryland, was captured in Pakistan in 2003 and held incommunicado by the C.I.A. for three years. He was kept in darkness for years and in his second year of detention, the agency “infused” a puree of pasta, sauce, nuts, raisins and hummus into his rectum because he went on a hunger strike, according to a 2014 Senate investigation. He was also sleep deprived, kept naked and hung by his wrists, and hooded, to the point of hallucinations.
Mr. Khan was transferred to Guantanamo Bay in 2006 and saw a lawyer for the first time in his fourth year of detention. In 2012, he pleaded guilty to terrorism-related charges stemming from his work for Al Qaeda after the Sept. 11 attacks, and agreed to postpone his sentencing while he cooperated with government prosecutors.
On April 16, he and his lawyers reached agreement with the overseer of military commissions for a sentence that would end sometime between early next year and March 1, 2025.
The agreement itself is under seal, at least until a judge questions Mr. Khan on whether he voluntarily entered into it. But several people, speaking on the condition of anonymity to describe details of the deal, said that it has a sentencing range of 11 to 14 years, applied starting with his guilty plea in 2012.
The jury in the case will still be instructed to impose a sentence of 25 to 40 years. But under the deal, the judge will then reduce the sentence to the agreed 11 to 14 years, with the precise length depending on a number of factors including the government’s assessment of his cooperation with U.S. authorities.
Mr. Khan’s lawyers declined to comment. The C.I.A. referred questions about the deal to the convening authority, the overseer of the court at Guantanamo. A spokeswoman for the agency said the “C.I.A.’s detention and interrogation program ended in 2009.”
The deal averted a looming showdown between prosecutors and the judge in Mr. Khan’s case, Col. Douglas K. Watkins of the Army, over the judge’s order to take C.I.A. witnesses to Guantanamo Bay to testify about Mr. Khan’s torture during his 2003-06 detention in the overseas C.I.A. prison system, known as black sites.
Colonel Watkins ruled last year that a military commissions judge had the power to award Mr. Khan time off his sentence for “pretrial punishment.” He ordered a fact-finding hearing at Guantanamo on Mr. Khan’s claims and said, if true, his descriptions of his treatment amounted to torture and pretrial punishment.
Under the agreement, Mr. Khan gives up the fact-finding hearing.
Separately, Colonel Watkins awarded him a year off his eventual sentence because prosecutors failed to disclose certain evidence. Colonel Watkins retires from the Army on Aug. 1 and was replaced on the case Wednesday by an Air Force judge, Col. Mark W. Milam.
The agreement is the first involving a Guantanamo detainee that the Biden administration has reached since taking office. It was made by Jeffrey D. Wood, a National Guard colonel who was appointed by the Trump administration to the civilian role of convening authority for military commissions.
The timetable for Mr. Khan’s release gives the Biden administration time to restart negotiations with other governments, suspended during the Trump administration, to send detainees no longer deemed a national security threat from Guantanamo Bay to countries that commit to keep an eye on them and, typically, restrict their travel.
A detention zone in 2019 at Guantanamo Bay, Cuba. Mr. Khan has been held separately from other detainees after pleading guilty and cooperating with prosecutors.Credit…Doug Mills/The New York Times
Prosecutors had repeatedly argued that the military judge had no power to hold a hearing on a Guantanamo prisoner’s mistreatment and then reduce a sentence. They lost, though some government officials continue to argue that the ruling could be reversed.
The prosecutors then resisted having witnesses testify at Guantanamo Bay, even anonymously, about the torture of Mr. Khan. A U.S. government official said there were questions about whether specific witnesses the judge had ordered to testify had actually seen Mr. Khan in C.I.A. detention.
The issue had been simmering but had not come to a head because travel restrictions during the coronavirus pandemic brought most military commission hearings to a standstill for the last year.
The question of whether Mr. Khan could receive a reduction in his sentence because of his torture was also a potential model for the defense in the capital conspiracy case against Khalid Shaikh Mohammed and four other men accused of plotting the Sept. 11 attacks. Defense lawyers for all five defendants say there is evidence that each was systematically tortured in the black sites, and they want a judge or jury to hear graphic details about it to avert a death sentence when the long-delayed case eventually proceeds.
Two contract psychologists who devised the C.I.A.’s interrogation program, James Mitchell and John Bruce Jessen, have been publicly identified. But the identities of the people who interrogated Mr. Khan, and in which countries where they did it, are still classified at the court, which operates under rules that the government says are intended to balance state secrets and fair trial rights.
Prosecutors argued that anonymous, in-person testimony about Mr. Khan’s treatment, whether in a classified session or in public, risked exposing covert U.S. government employees, and said it was not possible to take them to Guantanamo Bay. That left the possibility of the judge ordering their appearances, prosecutors refusing to bring them and as a remedy, the judge reducing Mr. Khan’s sentence.
Government officials with knowledge of the deal said that the C.I.A. wanted to avoid having its officers exposed, and did not want them to testify at Guantanamo, but that Mr. Wood in his capacity as convening authority decided on his own to defuse the dispute over the witnesses.
Descriptions of the agreement suggest there are victories for both sides. When the court finally assembles a sentencing jury at Guantanamo, Mr. Khan will be permitted to describe his torture for the panel of military officers that will sentence him — although perhaps not in open court. He just cannot call corroborating witnesses.
In exchange, according to a filing on April 22, Mr. Khan’s lawyers will also ask the judge after sentencing to void the June 2020 ruling that found credit for pretrial punishment is an available remedy at a military commission — undercutting its potential use in the Sept. 11 case.
Mr. Khan in a military photo believed to have been taken at Guantanamo soon after his September 2006 transfer there.
Mr. Khan has been kept apart from the other former C.I.A. prisoners at Guantanamo since he pleaded guilty. At that time, he became a government informant, and has been debriefed on demand although prosecutors have yet to hold a trial where his testimony would be needed.
In pleading guilty he admitted to delivering $50,000 from Mr. Mohammed to militants in Indonesia that was used to finance the bombing of a Marriott hotel in Jakarta, Indonesia, in 2003, killing 11 people. Three men at Guantanamo have been charged in that plot, but have yet to be arraigned and have no trial date.
During the Trump administration, Mr. Khan was also listed as a government witness in a planned federal prosecution of another Pakistani man, Uzair Paracha. Mr. Paracha was convicted in 2005 in New York of federal terrorism-related offenses, but the conviction was overturned. Rather than retry him last year, federal prosecutors dropped the case in exchange for Mr. Paracha voluntarily giving up his U.S. residency and returning to Pakistan, after 17 years of incarceration.
For Mr. Khan, the path out of Guantanamo may be more complex. Successive U.S. administrations have argued that a convicted war criminal who completes his sentence may still be held at Guantanamo in the quasi-prisoner of war status of a detainee, as long as the United States considers itself to be at war with Al Qaeda and other terrorist groups.
Also, it is unclear where Mr. Khan would go. He was born in Saudi Arabia, lived as a child in Pakistan but went to high school in suburban Baltimore and had asylum in the United States before he returned to Pakistan after the Sept. 11 attacks. By law, he cannot be sent to the United States.