Update January 2, 2022: The Military Judge has canceled the KSM et al hearings that were scheduled for January 10-21 at Guantanamo Bay.
Washington, DC – One day before the 43rd hearing in the 9/11 military commission commenced, Majid Shoukat Khan was sentenced for conspiring with Khalid Sheikh Mohammad and others to commit various terrorist acts. In his public statement during the sentencing hearing, Khan provided previously unknown details of the torture to which he was subjected while in US custody.
Vince Warren, Executive Director of the Center for Constitutional Rights, which has represented Mr. Khan since 2006 said, “We knew about some of the horrors he was subjected to, like the so-called ‘rectal feeding,’ from the Senate torture report, but the new details in his own words were chilling. From the ice-bath waterboardings to the ‘Torture Doctor’ who put hot sauce on the tip of his IV, the acts committed by our government shock the conscience ‒ yet no one has ever been held accountable.” Seven out of the eight jurors submitted a handwritten clemency letter to the Convening Authority (CA) in which they condemned Mr. Khan’s torture as “a stain on the moral fiber of America” that “should be a source of shame for the U.S. government.”
The information provided by Mr. Khan shows that much is still unknown about the US torture program. Khan’s statement and the clemency letter were submitted as exhibits in the military commission hearing and in testimonies at the Senate Judiciary Committee hearing on “Closing Guantanamo: Ending 20 Years of Injustice.”
Briefing reporters prior to the start of the 43rd military commission hearing in Guantánamo Bay last month, James Connell, the lead lawyer defending Ammar al Baluchi, said that Khan’s statement reinforced something that they’ve been saying for a long time. “The Senate Select Committee on Intelligence (SSCI) report on torture is really only part of the story,” said Connell. He emphasized that much of what Ammar is suffering from now, and a lot of the things that he has expressed real concerns about are not reflected in the SSCI report, but are reflected in one way or another in Khan’s statement.
In a speech on the Senate floor on November 30th, Senate Judiciary Committee Chair Dick Durbin (D-IL) spoke about the importance of closing the Guantánamo Bay detention facility. The Senator/Senate Whip announced he had filed an amendment to the National Defense Authorization Act (NDAA) to close the facility once and for all. Referencing Khan’s description of torture at CIA black sites and the clemency letter condemning the torture of Khan, Durbin concluded, “The human rights abuses we committed in Guantánamo and CIA black sites are not merely inhumane; they don’t work. Khan testified, ‘I lied just to make the abuse stop.'”
Testifying at the Senate Judiciary Committee hearing on December 7th, Brigadier General John G. Baker, the Chief Defense Counsel (CDC) for the Military Commissions Defense Organization (MCDO) said that after capture in Pakistan in March 2003, Khan “cooperated with his captors, telling them everything he knew, with the hope of release. ‘Instead, the more I cooperated, the more I was tortured,’ he said.” After listening to his statement, the military jury – composed of senior military officers drawn from all branches of the military, “although they had been told that they could sentence Khan to between 25 and 40 years, they imposed a sentence of 26 years – one year over the minimum sentence. More remarkably still, they did something that had never been done in a commissions case –they wrote a letter asking that Mr. Khan be granted clemency.”
General Baker went on to say that “government decisions that have corrupted the process from its outset, and that make any just or satisfying future outcomes of commission cases – in the form of legitimate convictions and fair sentences — unlikely if not impossible.” He said that allowing the military commissions to proceed in their current form will result “at very best in many more years of agonizing delay, and at worst in verdicts that – following those years of delay — are overturned on appeal. To be blunt, the government is gambling with the victims’ real need to achieve closure in some form. That is unconscionable.”
In Baker’s assessment the Khan sentencing offers a preview of the likely outcome of the remaining military commission cases — in particular the capital cases. “If the Khan jury heard his story and thereafter wrote a clemency letter on his behalf, it is difficult to believe that a sentencing jury in any of the other cases would impose a sentence of death – at least when they are given the sentencing option of life without parole, which they will be.”
Colleen Kelly is the co-founder of September 11th Families for Peaceful Tomorrows, which has official observer status in the military commissions. Testifying before the Senate Judiciary Committee, Kelly said, “The rule of law is a bedrock principle of our nation, and after 9/11 we expected our government to uphold the rule of law in seeking accountability for our relatives’ deaths. It failed to do so and as a result we still are awaiting justice twenty years later.”
She spoke of victims’ family members who have passed away while waiting for justice for 9/11. In over nine years of pre-trial hearings, there have been over ten Convening Authorities, four judges, replacement of counsel, and other civilian and military personnel changes. Kelly said that “We know that each of the 9/11 defendants was tortured…and members of our organization began to feel that the classification of information about torture and the invocation of the state secrets privilege were less about risks to our national security and more about withholding information that is embarrassing to the government.” In August of this year, Peaceful Tomorrows filed an amicus brief in the Supreme Court case U.S.A. v. Abu Zubaydah. The brief states:
Peaceful Tomorrows seeks justice and accountability for the September 11th attacks and for the torture that was subsequently carried out in its family members’ names by the United States government. To that end, Peaceful Tomorrows wants those responsible for the September 11th attacks held accountable for their crimes pursuant to a just process that follows the rule of law. To ensure a just process, Peaceful Tomorrows believes the rule of law must also apply to our government.
Referencing the Khan case and clemency letter, Kelly said that Peaceful Tomorrows advocates pre-trial agreements to resolve the remaining cases and provide a path to achieving Guantánamo’s eventual closure.
The five defendants in the 9/11 case – Khalid Shaikh Mohammad, Walid Bin Attash, Ramzi Bin Al Shibh, Ammar Al-Baluchi, and Mustafa Al-Hawsawi – were arraigned almost a decade ago. Pre-trial hearings will resume in the new year, but with no trial date set, justice is nowhere in sight.
Poonam is a multi-media journalist, and Founder and Editor of Global Strat View. She was the Managing Editor of India America Today (IAT) for seven years, and launched its print edition in 2019 with IAT's Founder and Editor, the late Tejinder Singh.