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One-Way Accountability

Guantanamo Detainee Pleads Guilty; Details of Government Crimes Against Him Remain Classified Top Secret

I’m making a leap of faith here, sir. That is all I can do.
-Majid Khan, Guantánamo Bay, February 29, 2012

At the US Naval Base at Guantánamo Bay in Cuba on 29 February 2012, Pakistani national Majid Shoukat Khan pleaded guilty to a range of charges under the US Military Commissions Act, including murder and attempted murder “in violation of the law of war”, before US Army Colonel James Pohl in his role as a military commission judge.  Under the terms of a pre-trial plea agreement, Majid Khan is now convicted as charged and will be sentenced in February 2016 or earlier. In the interim, he is required under the agreement to cooperate “fully and truthfully” with the US government, including with military and civilian prosecutors, and law enforcement, military and intelligence authorities.
The factual allegations in relation to which Majid Khan admitted personal responsibility include conspiring with al-Qa’ida to assassinate a former President of Pakistan via a suicide bombing in 2002 and transferring funds for a group, al-Qa’ida, he knew to be engaged in terrorism, which were later used in the bombing of a hotel in Indonesia that occurred in August 2003 and in which 11 people were killed. Under the plea agreement, if he cooperates fully, he faces a prison sentence of up to 19 years, from the date of his guilty plea.  Once he has served any such sentence, the government reserves the right to return him to indefinite “law of war” detention. Majid Khan’s “leap of faith” is that he will be released after serving whatever term of imprisonment he is given in or before February 2016.

At a press conference at Guantánamo after the plea hearing, the current Chief Prosecutor for the military commissions, Brigadier General Mark Martins, said that “Mr Khan has, importantly and commendably, accepted responsibility and expressed remorse for his actions.” General Martins noted that “no-one has alleged that he was a mastermind or a leader” and noted that Majid Khan had been convicted “on a rationale of indirect liability” whereby “you can be guilty of a substantive offence that you didn’t directly do but that was a natural and foreseeable consequences of an agreement that came into play and that you never withdrew from”. The facts taken together with Majid Khan’s acceptance of responsibility for his actions, the Chief Prosecutor asserted, rendered the plea arrangement “a very credible result that fits, that is justice, and that is an appropriate holding of accountability”.

At the press conference, Majid Khan’s lawyer explained that Khan had sought to plead guilty “quite a long time ago”, a matter of some years earlier, and that it had “taken a long time for us to get to today”. The lawyer recalled that defence counsel’s attempts to move the case forward had originally been met by “a tremendous bureaucratic paralysis” and “perhaps even intransigence” on the part of the authorities. Until the current Chief Prosecutor arrived in post in September 2011, the lawyer continued, “we couldn’t find anyone who would talk to us in the United States government”, He suggested that this state of affairs had flowed from a situation where President Barack Obama had essentially “surrendered” matters surrounding the Guantánamo detentions to “his political opponents.”

Majid Khan’s guilty plea was entered nine years after he was taken into custody in Pakistan in the first week of March 2003, secretly handed over to the USA and held at undisclosed locations. Prior to being transferred to military custody at Guantánamo on 4 September 2006, he was subjected to more than three years of enforced disappearance in the secret detention program then being operated by the Central Intelligence Agency (CIA) under the authorization of President George W. Bush. Majid Khan has also alleged that he was subjected to torture and other cruel, inhuman or degrading treatment while held in secret custody. The details of where he was held during this time, how he was interrogated and by whom, and his conditions of confinement, remain classified at the highest levels of secrecy.

At the press conference on 29 February 2012 at Guantánamo, Majid Khan’s lawyer reiterated that Majid Khan “was tortured and he was tortured very badly” in US custody prior to his arrival at Guantánamo. That is the limit of the detail he could or can disclose publicly on this issue. The lawyer emphasised that Majid Khan’s treatment in secret custody had been “unlawful, and the United States government needs to – it must – acknowledge what happened to him and it must accept responsibility for what happened to him”. He suggested that “the principle of transparency can’t flow in only one direction…. There has to be disclosure of what happened to people like Majid Khan.”

On the same question, the Chief Prosecutor said: “Accountability is important for everyone”. He pointed to the fact that under the Military Commissions Act, as revised in 2009, statements obtained under torture or other cruel, inhuman or degrading treatment (as defined in US law) were no longer admissible before military commissions, and that Majid Khan would have the opportunity to raise allegations of ill-treatment at his sentencing in mitigation. The US government is bound under international law to prohibit the use of any statements obtained under torture or other ill-treatment. However, allowing Majid Khan to raise allegations of his ill-treatment in mitigation at his sentencing hearing in no way amounts to the access to the remedy that he is also entitled under international law. Moreover, while it is true that Majid Khan can raise his allegations of torture or other ill-treatment in CIA custody at his sentencing, as things currently stand, the public will not be able to hear them.

The Chief Prosecutor suggested that there was “significant investigation ongoing” into allegations of ill-treatment of detainees. Quite what he meant was unclear, because criminal investigations into the CIA secret detention program have all but been shut down by the US Department of Justice, and a yet to be released review of the CIA program by the Senate Select Committee on Intelligence apparently does not have accountability as its raison d’être.   Yet in such a case, where there is a reasonable ground to believe that an act of torture has been committed, the US government is obliged to conduct a prompt and impartial investigation , but despite such claims it is not apparent that any meaningful investigation is ongoing. “Trials have meaning”, General Martins concluded, “They are very important, and they have consequences in holding people accountable”. Yet while Majid Khan has now been convicted following his guilty plea, criminal trials for those who subjected Majid Khan and others to crimes under international law in the secret detention and rendition programmes remain notable by their absence.

Torture and enforced disappearance are crimes under international law. There has still been no explicit admission from the US government that crimes were committed against this and other detainees in the CIA secret detention program despite the wealth of information about these systematic human rights violations now in the public realm.

The US government has a duty to prevent acts of terrorism, protect those threatened by such attacks, and to bring those responsible to justice. To this end, the USA or other countries are clearly entitled to prosecute the conduct admitted to by Majid Khan in relation to such attacks as serious crimes (though their prosecution in a military court as “war crimes” under the USA’s sweeping “global war” theory remains deeply flawed). However, Amnesty International is concerned that accountability and remedy for the human rights violations committed in the CIA program remain apparently as remote as ever, leaving the USA in serious breach of its international legal obligations. The US government is using secrecy to obscure victims’ and society’s collective and individual right under international law to the truth.

It is long past time for disclosure and accountability on the government side.