GUANTANAMO BAY NAVY BASE, Cuba -- When a suburban Baltimore high school graduate steps out of the shadows of CIA detention this week to admit to serving the senior leadership of al Qaida, the Obama administration will be unveiling its latest strategy toward an endgame.
Majid Khan has agreed to be a government witness at future military commissions, sources say, in exchange for Wednesday’s guilty plea and the possibility of return to his native Pakistan in four years. It’s part of an evolving effort to quell criticism that confessions were extracted through torture by offering live testimony from willing captive witnesses.
“It’s like organized crime,” said retired Air Force Col. Morris Davis, a Bush-era Pentagon war crimes prosecutor. “Sometimes you pick the lesser of the two evils and bargain with who you can.”
Federal prosecutors describe Khan, who turns 32 Tuesday, as a one-time willing foot soldier for radical Islam. He allegedly recorded a martyr’s message and donned a fake bomb vest in 2003 in a test to see whether he was willing to kill then-Pakistani President Pervez Musharraf. He allegedly delivered $50,000 from Pakistan to Thailand, money used to fund an al Qaida affiliate’s August 2003 suicide attack on a Marriott hotel in Jakarta, Indonesia. Eleven people died, and more than 80 others were wounded.
The attack’s alleged architect, Riduan Bin Ismouddin, an Indonesian man known as Hambali, and two reputed Malaysian deputies were, like Khan, subjected to years of secret CIA interrogations — never charged but still at Guantánamo and, according to a Malaysian newspaper’s report, in the queue to face military trials.
Less clear is how Khan would help at a 9/11 trial. His charge sheet allege he joined al Qaida after the Sept. 11 terror attacks.
The Majid Khan plea also illustrates a new merging of military and federal prosecutorial techniques that was absent at the start of the war court, said veteran New York defense lawyer Joshua Dratel whose client, David Hicks, was the first to make a plea deal and the first war criminal convicted at Guantánamo, in 2007.
“They didn’t have a clue how to make a deal,” Dratel said.
Then it was driven by politics. Hicks was released to his native Australia ostensibly to help then Prime Minister John Howard silence critics of Australia’s war on terror alliance with the Bush administration as he was seeking re-election. Howard lost anyway and military prosecutors got no live testimony from Hicks, a potentially useful English-speaking insider who, like Khan, could straddle both cultures in explaining how al Qaeda worked to a military jury.
Now, says Dratel, the prosecutors are trying to institute a more “traditional criminal law approach to these cases: Get cooperators, move up the ladder and look for ways to neutralize defense arguments by creating different independent avenues of presenting the same evidence.”
Or, put another way, “the deal bank is open,” said Dratel.
Pentagon officials won’t discuss the strategy, except to say that at the Obama war court evidence gleaned through torture is both inadmissible and illegal. “We are approaching the public prosecution function as military and federal prosecutors do, seeking evidence through every available and lawful process,” said Army Brig. Gen. Mark Martins, the current chief war court prosecutor.