Under the George W. Bush Administration at least 780 Muslim men were brought to the prison facilities at the Guantanamo Bay Naval Base, which was opened on January 11, 2002. Today, as GITMO’s 20th anniversary approaches, 39 men remain. Ten have been charged but are waiting for their trials to begin; two have been convicted. The remaining 27 are being held in “law-of-war” detention; 14 with no end to their incarceration in sight and 13 who have been recommended for transfer to another country. While all the injustices of GITMO need to be addressed, it is most urgent that the men cleared for transfer get out. Tell President Biden and Secretary of State Blinken that they must designate a special envoy with responsibility for finding a safe country to which each of these men can be sent.
Continuing detention without charge of men at GITMO and the failure to hold anyone accountable for the horrific torture they endured at the hands of the CIA and members of the U.S. military are policies endemic to our endless wars. Until these policies are addressed those wars will still be with us. Torture and the prodigious efforts of the CIA to keep the details of what the detainees endured highly classified has virtually paralyzed judicial proceeding at Guantanamo. But last month, a remarkable breakthrough at the sentencing hearing for Majid Khan offered a potential path to resolution.
Majid Khan is unique among Guantanamo prisoners. While he is a citizen of Pakistan, he and other members of his family have held political asylum status in the U.S. Khan grew up outside of Baltimore, graduated from a suburban high school, and later lived and worked in the area. He then traveled to Pakistan, became involved with al-Qaeda and in March of 2003 was captured, disappeared, and tortured by U.S. officials at overseas “black sites” operated by the CIA. He arrived at Guantanamo Bay in 2006, at the age of 26. In February of 2012, Khan was charged and pled guilty to several offenses before a military commission at Guantanamo; most importantly he acknowledged delivering money to men who carried out the bombing of the Marriott Hotel in Jakarta in August of 2003. Since his guilty plea, Khan has been cooperating with U.S. government officials.
At Khan’s sentencing hearing, October 28-29, 2021, he addressed the jurors and read a remarkable personal statement that lasted over two hours. Khan began by stating, “To those who tortured me, I forgive you – all of you.” He went on to relate details of his youth, why he turned to al-Qaeda, a full confession, an apology to everyone his actions had killed or injured, and a lengthy description of his treatment in the black sites. This included being hung naked with his wrists shackled to a high beam for hours on end in a cold room, sleep deprivation, ice baths, and “rectal feeding,” a form of rape. Khan described how when he was moved from his cell to an interrogation room the prison guards would shackle his arms and legs behind his back and knock his head into the walls and stairs as they carried him. Khan’s statement was the first time a CIA torture survivor has spoken in any official forum about his experiences. Because Khan was giving personal testimony at a sentencing hearing, it was subject to far less censorship than the evidence allowed in the Military Commissions at Guantanamo. The Washington Director of the Center for Victims of Torture described Khan’s testimony as a “stark reminder of impunity for torture.”
The jurors were clearly deeply concerned by what they heard from Kahn. Seven out of eight voluntarily signed a clemency letter that was a stunning rebuke of the CIA’s practices. “[T]he treatment of Mr. Khan in the hands of U.S. personnel should be a source of shame for the U.S. government,” they wrote. Khan “has been held without the basic due process under the Constitution” and in “complete disregard for the foundational concepts upon which the Constitution was founded,” which they described as “an affront to American values and concept of justice.” The physical and psychological abuse Khan suffered resembled “torture performed by the most abusive regimes in modern history” and “is a stain on the moral fiber of America,” they concluded.
What lessons might be drawn from Khan’s sentencing that might help resolve the other cases before the Military Commissions at Guantanamo—including the case of the five men accused of planning and supporting the attacks of 9/11? Every single man facing trial at Guantanamo was subjected to the CIA’s practices at one or more black sites. None of the ten men charged are even close to a trial date; instead, most of the cases are stalled as prosecution and defense attorneys litigate how much evidence of the men’s torture will be made public. Pre-trial agreements could end the judicial deadlock; the commissions could accept a defendant’s guilty pleas in exchange for a “stipulation of the facts,” a defendant would receive a reduced sentence (less time or foregoing the death penalty), and a defendant would have the option to make a “personal statement”. It would allow victims and their families to learn the truth and would afford some redress (though not accountability) for torture.
As one of Majid Khan’s attorneys has written, “Justice is frequently imperfect and true accountability can be illusive. But the lack of both in the context of Guantanamo exacerbates the still raw pain associated with the 9/11 attacks and also highlights a failure to reckon with the worst excesses of the post-9/11 period which, unfortunately, Guantanamo continues to epitomize.” Plea agreements, though they offer imperfect justice, may be the only way to close Guantanamo.
