In a stark rebuke of the torture carried out by the CIA after 9/11, seven senior military officers who heard graphic descriptions last week of the brutal treatment of a terrorist while in the agency’s custody have written a letter calling it “a stain on the moral fiber of America.”
The officers, part of an eight-member jury of Army, Navy and Marines, condemned the US government’s conduct in a clemency letter on behalf of Majid Khan, a suburban Baltimore high school graduate-turned-al-Qaida courier. They were brought to the base to sentence Khan, who had pleaded guilty to terrorism charges. After issuing him a 26-year sentence, they handwrote the letter proposing clemency.
Deliberations began after Khan spent two hours describing in grisly detail the violence that CIA agents and operatives inflicted on him in dungeonlike conditions in prisons in Pakistan, Afghanistan and a third country, including sexual abuse and mind-numbing isolation, often in the dark while he was nude and shackled.
“Mr. Khan was subjected to physical and psychological abuse well beyond approved enhanced interrogation techniques, instead being closer to torture performed by the most abusive regimes in modern history,” according to the letter, which was obtained by The New York Times.
The panel also responded to Khan’s claim that after his capture in Pakistan in March 2003, he told interrogators everything, but “the more I cooperated, the more I was tortured,” and so he subsequently made up lies to try to mollify his captors.
“This abuse was of no practical value in terms of intelligence, or any other tangible benefit to U.S. interests,” the letter said. “Instead, it is a stain on the moral fiber of America; the treatment of Mr. Khan in the hands of U.S. personnel should be a source of shame for the US government.”
In his testimony Thursday night, Khan became the first former prisoner of the CIA’s so-called black sites to publicly describe in detail the violence and cruelty that US agents used to extract information and to discipline suspected terrorists in the clandestine overseas prison program that was set up after 9/11.
In doing so, Khan also provided a preview of the kind of information that might emerge in the death penalty trial of the five men accused of plotting 9/11, a process that has been bogged down in pretrial hearings for nearly a decade partly because of secrecy surrounding their torture by the CIA.
The agency declined to comment on the substance of Khan’s descriptions of the black sites, which prosecutors did not seek to rebut. It said only that its detention and interrogation program, which ran the black sites, ended in 2009.
Khan, 41, was held without access to either the International Red Cross, the authority entrusted under the Geneva Conventions to visit war prisoners, or to a lawyer until after he was transferred to Guantánamo Bay in September 2006. He pleaded guilty in February 2012 to terrorism crimes, including delivering $50,000 from al-Qaida to an allied extremist group in Southeast Asia, Jemaah Islamiyah, that was used to fund a deadly bombing of a Marriott hotel in Jakarta, Indonesia, five months after his capture. Eleven people were killed, and dozens more were injured.
The clock on his prison sentence began ticking with his guilty plea in 2012, meaning the panel’s 26-year sentence would end in 2038.
But Khan, who has cooperated with the US government, helping federal and military prosecutors build cases, has a deal that was kept secret from the jury that could end his sentence in February or in 2025 at the latest.
Under the military commission system that was set up after 9/11, even defendants who plead guilty and make a deal with the government must have a jury sentencing hearing. This was the case for Khan, who had a cooperator’s deal from 2012 that was not known to the jurors and delayed sentencing by nearly a decade to give him time to work with government investigators and win favor in the form of early release from a jury sentence.
The letter also condemned the legal framework that held Khan without charge for nine years and denied him access to a lawyer for the first 4 1/2 years as “complete disregard for the foundational concepts upon which the Constitution was founded” and “an affront to American values and concept of justice.”
Although it is rarely done, a military defense lawyer can ask a panel for letters endorsing mercy, such as a reduction of a sentence, for a service member who is convicted at a court-martial.
But this was the first time the request was made of a sentencing jury at Guantánamo, where accused terrorists are being tried by military commission in Khan’s continuing efforts to win release. A recommendation of clemency is not binding, but it could send a powerful message to the convening authority of military commissions, the senior Pentagon official overseeing the war court, whose role is to review a completed case and accompanying clemency petition from defense lawyers to decide whether to shorten a sentence.
In closing arguments, Khan’s military lawyer, Army Maj. Michael Lyness, asked the panel to sentence him to the minimum and then to consider drafting a letter recommending clemency.
The jury foreman, a Navy captain, said in court that he took up the request and drafted it and that all but one officer on the sentencing jury signed it, using their panel member numbers because jurors are granted anonymity at the national security court at Guantánamo. It was addressed to the convening authority of military commissions. An Army colonel, Jeffrey Wood of the Arkansas National Guard, currently fills that role as a civilian.
Ian Moss, a former Marine who is a civilian lawyer on Khan’s defense team, called the letter “an extraordinary rebuke.”
“Part of what makes the clemency letter so powerful is that, given the jury members’ seniority, it stands to reason that their military careers have been impacted in direct and likely personal ways by the past two decades of war,” he said.
At no point did the jurors suggest that any of Khan’s treatment was illegal. Their letter noted that Khan, who never attained U.S. citizenship, was held as an “alien unprivileged enemy belligerent,” a status that made him eligible for trial by military commission and “not technically afforded the rights of US citizens.”
But, the officers noted, Khan pleaded guilty, owned his actions and “expressed remorse for the impact of the victims and their families. Clemency is recommended.”
Sentencing was delayed for nearly a decade to give Khan time and opportunity to cooperate with federal and military prosecutors, so far behind the scenes, in federal and military terrorism cases. In the intervening years, prosecutors and defense lawyers clashed in court filings over who would be called to testify about Khan’s abuse in CIA custody, and how.
Unknown to the jurors when they deliberated the sentence and crafted the clemency letter, Wood had reached an agreement with Khan to evaluate his cooperation with the government and reduce his sentence. In exchange, Khan and his legal team agreed to drop their effort to call witnesses to testify about his torture, much of it most likely classified, as long as he could tell his story to the jury.
The jurors were also sympathetic to Khan’s account of being drawn to radical Islam in 2001 at age 21, after the death of his mother, and being recruited to al-Qaida after 9/11. “A vulnerable target for extremist recruiting, he fell to influences furthering Islamic radical philosophies, just as many others have in recent years,” the letter said. “Now at the age of 41 with a daughter he has never seen, he is remorseful and not a threat for future extremism.”
The panel was provided with nine letters of support for Khan from family members, including his father and several siblings — US citizens who live in the United States — as well as his wife, Rabia, and daughter, Manaal, who were born in Pakistan and live there.