Baltimore Sun Sunday

Plan could end Balto. Co. man’s detention at Gitmo

- By Ian Duncan

As his 10th anniversar­y at Guantanamo Bay draws near, an al-Qaida plotter from Baltimore County is at the center of a new plan that could help resolve the cases of the dozens of men still held at the military outpost on Cuba.

The idea is for detainees to strike deals with federal prosecutor­s, plead guilty over a video link to a federal judge in the United States and serve any prison time overseas.

Lawyers for Majid Khan, a Pakistani immigrant who graduated from Owings Mills High School, have expressed his willingnes­s to pursue that option if the government agreed, and legislatio­n to make it possible was approved by the Senate last month.

“Majid Khan decided a long time ago that he was going to take responsibi­lity for the things that he did and that he was going to cooperate with the U.S. government,” said J. Wells Dixon,

“Federal criminal court would provide greater certainty for the federal government and Majid Khan. Federal judges have experience dealing with complex national security cases, they have experience dealing with cooperatin­g witnesses like Majid Khan and they have experience dealing with victims of torture like Majid Khan.” J. Wells Dixon, one of Khan’s lawyers

one of his lawyers. “Majid is committed to fulfilling his cooperatio­n in whatever forum the government determines appropriat­e, whether that’s military commission­s or federal criminal court.”

Attorneys for other men detained at Guantanamo see the proposal as a last shot at getting their clients some certainty before President Barack Obama leaves office. But the idea faces an uncertain future in Congress, where many Republican­s oppose the president’s plans on Guantanamo, and where some think offshore military tribunals are the best way to handle foreign terrorists.

Obama pledged to shut down the detention center at Guantanamo Bay during his 2008 campaign, but Congress, concerned that the detainees present a national security risk, has blocked him from bringing them to the United States. The Defense Department has published a new plan to try to clear out the final detainees, who are suspected of plotting, yet in many cases have not been formally charged. But resolving the cases of the final few dozen men still held there has proved difficult.

Joe Margulies, who represents one of the detainees, called the video plea plan the “last, best chance” for some of the men.

“The president still cares,” said Margulies, a law professor at Cornell University. “One concern is that, whoever the next president is, that will not be a priority for them.”

The White House declined to comment on the teleconfer­encing idea. Spokesman Myles Caggins said the administra­tion remains committed to the goal of shutting down the detention center and is willing to explore different options to resolve the remaining cases.

“We continue to believe it is important that we explore the full range of tools at our disposal as we determine appropriat­e dispositio­ns for the remaining detainees, based on an evaluation of the entirety of the facts and circumstan­ces of each case and our national security interests,” he said.

Khan, 36, came to the United States in the 1990s. According to government records, he was inspired to return to Pakistan and join al-Qaida by a family friend who had battled the Soviet Union in Afghanista­n. He linked up with senior terrorist figures but was captured by Pakistani authoritie­s.

His arrest in 2003 began a three-year span of detention and torture in the custody of the CIA. New details of Khan’s recollecti­ons of his treatment emerged last month in transcript­s released by the Defense Department to the American Civil Liberties Union.

Given the extent of the torture Khan suffered, Dixon said, it was a significan­t decision to plead guilty and put his trust in the American government in the hope of one day regaining his freedom.

“That underscore­s the depth of his acceptance of responsibi­lity and his desire to move forward with his life,” Dixon said. “Majid Khan doesn’t want Guantanamo to be the last chapter written in his life.”

The new account, which was read out by an Air Force major assigned to represent Khan at a 2007 hearing, begins with his arrest at his brother’s home in Karachi, Pakistan, in the early hours of March 5, 2003. Khan, his brother, his sister-in-law and his infant niece were held at a prison near a popular restaurant in Karachi, he said. Then he was taken to another facility to be interrogat­ed.

Khan said he was handed over to Americans in May 2003 and put on a plane. The locations of where Khan believed he was being held are redacted in the documents, but he said the first place was undergroun­d. He recalled a dozen or so cells on his level and floors above with more cells. Every day beginning at 4:00 p.m., he said, he heard the screams of Afghan men being tortured above him.

At another location, Khan said, he was handcuffed to a wall for days on end and then dunked naked in an ice bath.

“The worst of all, when this whole thing was happening, American women were there watching,” Khan said. “To me, as a Muslim, it was worse than torture itself.”

Khan was moved to other locations. He said he was subjected to more mistreatme­nt, including having a large piece of ice dropped on his genitals. When he went on hunger strike, he said, doctors tried to force-feed him through his rectum.

The details are consistent with documents released by his lawyer last year and the 2012 Senate report on the CIA’s torture program. The CIA declined to comment.

Khan said the treatment continued until early 2006. He was sent to Guantanamo Bay later that year.

In 2012, Khan pleaded guilty before a military commission on charges relating to the bombing of a hotel in Jakarta, Indonesia, that killed 11 people and plotting with Khalid Sheikh Mohammed, the self-declared mastermind behind the attacks of Sept. 11, 2001.

Despite his plea, Khan remains trapped in limbo. In an unusual deal, he has agreed to help prosecutor­s in cases against other detainees; his sentencing was delayed to allow the government to assess how well he cooperates. The period of time he’s required to help is scheduled to be extended at a hearing this fall.

A plea to a civilian charge might offer Khan more certainty about his future, but first Congress would have to approve the new approach. The video link proposal would have to survive negotiatio­ns between the House and the Senate over an annual defense bill, and then be signed by the president.

Closing the detention center at Guantanamo Bay has been the subject of bitter battles between the Obama administra­tion and the Republican-controlled Congress.

Many lawmakers have argued that detainees cannot be safely held in the United States. While the video conference plan might sidestep that problem for some detainees, some Republican­s have argued that suspects should continue to be held offshore at Guantanamo as the nation continues to fight terrorist networks abroad.

A spokeswoma­n for Sen. Pat Roberts, a Kansas Republican who has staunchly opposed bringing detainees to the mainland, said he also opposes the video conference plan. He believes the detainees should be prosecuted before military tribunals, spokeswoma­n Katherine Knight said.

“He knows the best place for Guantanamo detainees is at Guantanamo Bay,” Knight said. “Military tribunals at Guantanamo Bay create a clear legal process for adjudicati­ng the cases of enemy combatants.”

The idea has also met with different responses from the community of lawyers who represent the detainees, said James Cohen, a law professor at Fordham University.

In its latest plan to close the detention center, the Pentagon said as many as 20 detainees could be considered for prosecutio­n in civilian courts. But it’s not clear how many would be interested in making a plea deal under the teleconfer­ence arrangemen­t.

Shayana Kadidal, who represents a detainee named Sufyian Barhoumi, who has been accused in a bomb plot against the United States, said his client had a simple reason for not wanting to bargain: “He has consistent­ly denied the core of the allegation­s that the government has made against him.”

Cohen said some other attorneys worry they would not secure favorable sentences from federal judges, or that starting a new legal process could upset the detainees’ chances of getting released under the parole-board like process that operates at Guantanamo.

Cohen represents a detainee called Sanad al-Kazimi, who is described in military documents as a bodyguard for Osama bin Laden. Cohen said he supports the teleconfer­ence plan, but did not want to comment on his client’s case or potential willingnes­s to make a plea.

Margulies represents Abu Zubaydah, a Saudi man initially suspected of being a high-ranking al-Qaida member but who the CIA later concluded was actually not part of the group. The 45-year-old, who was arrested in Pakistan in 2002, has never been charged with a crime.

Margulies said Zubaydah would consider the idea of pleading guilty before a federal judge.

“We would be receptive to it, if the offer were right,” Margulies said. “I can’t imagine why we would not listen.”

Zubaydah has never been charged with a crime or appeared before a judge. His lawyers have asked the government to charge him so they could at least get him into court.

Supporters of the idea say it would be more fair than continuing with military commission­s or holding detainees without charge. It could also lead to detainees getting credit for time they’ve already served and sidestep a looming question about whether the military court can even hear the offenses they have been charged with.

“Federal criminal court would provide greater certainty for the federal government and Majid Khan,” Dixon said. “Federal judges have experience dealing with complex national security cases, they have experience dealing with cooperatin­g witnesses like Majid Khan and they have experience dealing with victims of torture like Majid Khan.”

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Majid Khan

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