Guantánamo inmate agrees to drop appeal for CIA testimony

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WASHINGTON – An inmate at Guantánamo Bay has agreed to a deal meant to lead to his release in the next few years in exchange for giving up the right to question the CIA in court about his torture program, officials said. US government.

The deal, brokered by the Pentagon official who oversees military commissions that serve as courts for some detainees, has been reached in recent weeks and comes as a number of people who have been indicted in Guantánamo seek to cite their abuses . of the CIA as part of their defense.

Under the deal, prisoner Majid Khan, 41, who pleaded guilty to serving as a courier for Al Qaeda, would complete his prison term as early as next year and no later than 2025, and then could being released in another country, assuming one will take it, according to people who have seen the terms or know its details.

In return, Mr Khan will not use his sentencing process to invoke a landmark war tribunal ruling that allowed him to call witnesses from the CIA’s secret prison network to testify to his torture.

This arrangement means that the CIA will for the time being avoid reporting to the tribunal for its use of what it called “improved interrogation techniques” under the Bush administration after the September 11, 2001 attacks.

Mr. Khan, a Pakistani citizen who attended high school in Maryland, was captured in Pakistan in 2003 and held incommunicado by the CIA for three years. He was kept in the dark for years, and during his second year in detention, the agency “infused” mashed pasta, sauce, nuts, raisins, and hummus into his rectum because he had eaten it. a hunger strike, according to a 2014 Senate investigation. He was also deprived of sleep, held naked and hung by the wrists, and hooded, to the point of hallucinations.

Mr. Khan was transferred to Guantánamo Bay in 2006 and saw a lawyer for the first time during his fourth year in detention. In 2012, he pleaded guilty to terrorism-related charges stemming from his work for Al Qaeda after the September 11 attacks and agreed to postpone his conviction while cooperating with government prosecutors.

On April 16, he and his lawyers reached an agreement with the military commission overseer for a sentence that would end between early next year and March 1, 2025.

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The deal itself is under seal, at least until a judge questions Mr Khan about whether he entered it voluntarily. But several people, speaking on condition of anonymity to describe the details of the deal, said it included a range of sentences ranging from 11 to 14 years, applied from his guilty plea in 2012.

The jury in charge of the case will still be responsible for imposing a sentence of 25 to 40 years. But as part of the deal, the judge will then reduce the sentence to the agreed 11 to 14 years, the precise length depending on a number of factors, including the government’s assessment of its cooperation with US authorities.

Lawyers for Mr. Khan declined to comment. The CIA referred questions about the deal to the convening authority, the supervisor of the Guantánamo court. A spokeswoman for the agency said that “The CIA’s detention and interrogation program ended in 2009.”

The deal avoided a looming confrontation between prosecutors and the judge in the case of Mr. Khan, Army Col. Douglas K. Watkins, over the judge’s order to take CIA witnesses to Guantánamo Bay to testify about the torture of Mr. Khan during his 2003-06 detention in the CIA prison system overseas, known as black sites.

Colonel Watkins ruled last year that a military commission judge had the power to grant Khan a suspension of his sentence for “pre-trial punishment.” He ordered an information hearing in Guantánamo into Mr. Khan’s allegations and said that, if true, his descriptions of his treatment amounted to torture and pre-trial punishment.

Under the terms of the deal, Mr. Khan abandons the fact-finding hearing.

In addition, Colonel Watkins gave him a year off on his final sentence because prosecutors did not disclose certain evidence. Colonel Watkins retires from the military on August 1 and was replaced Wednesday in the case by an Air Force judge, Colonel Mark W. Milam.

The agreement is the first concerning a Guantánamo detainee that the Biden administration has reached since taking office. It was directed 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.

Prosecutors had repeatedly argued that the military judge did not have the power to hold a hearing into the mistreatment of a Guantánamo prisoner and then reduce a sentence. They lost, although some government officials continue to argue the decision could be overturned.

Prosecutors then resisted having witnesses testify in Guantánamo Bay, even anonymously, about the torture of Mr. Khan. A US government official said there were questions as to whether specific witnesses the judge ordered to testify actually saw Mr. Khan in CIA custody.

The problem had simmered but had not reached a tipping point as travel restrictions during the coronavirus pandemic crippled most military commission hearings in the past year.

Whether Mr. Khan could receive a reduced sentence for his torture was also a potential defense model in the momentous conspiracy case against Khalid Shaikh Mohammed and four other men accused of plotting the terrorist attacks. September 11th. Defense attorneys for the five defendants say there is evidence that each has been systematically tortured at black sites, and they want a judge or jury to hear graphic details about it to avoid a death sentence when the long-delayed case will continue.

Two contract psychologists who designed the CIA’s interrogation program, James Mitchell and John Bruce Jessen, have been publicly identified. But the identities of those who interviewed Mr Khan, and in which countries they did so, are still on file with the tribunal, which operates under rules the government says are intended to balance state secrets and the right to a fair trial.

Prosecutors have argued that an anonymous in-person testimony about Mr Khan’s treatment, whether in a confidential session or in public, risked exposing secret US government employees, and said he was not possible to take them to Guantánamo Bay. This left the possibility for the judge to order their appearance, with prosecutors refusing to bring them in and, as a remedy, the judge reduced Mr Khan’s sentence.

Government officials familiar with the deal said the CIA wanted to prevent its officers from being exposed and did not want them to testify in Guantánamo, but that Mr Wood, as the summoning authority, had decided on its own to defuse the dispute over the witnesses.

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Descriptions of the deal suggest that there are victories for both sides. When the court finally assembles a sentencing jury in Guantánamo, Mr Khan will be allowed to describe his torture for the panel of military officers who convict him – but perhaps not in open court. He just cannot call corroborating witnesses.

In return, according to a filing filed on April 22, Khan’s attorneys will also ask the post-sentencing judge to overturn the June 2020 ruling that credit for the pre-trial sentence is a recourse available to a court. military commission – reducing its potential use in September. 11 cases.

Mr. Khan has been separated from other former CIA prisoners at Guantánamo since pleading guilty. At that time, he became a government informant and was debriefed on request although prosecutors have yet to hold a trial where his testimony would be needed.

By pleading guilty, he admitted to handing over $ 50,000 from Mr. Mohammed to activists in Indonesia that were used to finance the 2003 bombing of a Marriott hotel in Jakarta, Indonesia, killing 11 people. Three men from Guantánamo have been indicted in the plot, but have yet to be brought to justice and do not have a trial date.

During the Trump administration, Khan was also listed as a government witness in a planned federal prosecution against fellow Pakistani Uzair Paracha. Mr. Paracha was convicted in 2005 in New York of federal terrorism-related offenses, but his conviction was overturned. Rather than try it again last year, federal prosecutors dropped the case in exchange for Mr. Paracha voluntarily relinquishing his residence in the United States and returning to Pakistan, after 17 years of incarceration.

For Mr. Khan, Guantánamo’s exit may be more complex. Successive US administrations have argued that a convicted war criminal who completes his sentence can still be held at Guantánamo in the quasi-prisoner of war status of an inmate, as long as the United States considers itself at war with Al -Qaida and other terrorists. groups.

In addition, it is not clear where Mr. Khan would go. He was born in Saudi Arabia, lived as a child in Pakistan, but attended high school in suburban Baltimore and was granted asylum in the United States before returning to Pakistan after the September 11 attacks. By law, it cannot be sent to the United States.