Jurors Recommend Clemency After Detainee’s Graphic Account of CIA Torture

Guantanamo Naval Base, Cuba – The tale of how a weed-smoking Baltimore schoolboy became an al Qaeda terrorist who was brutally tortured by the CIA was two decades in the making. So it was perhaps only appropriate that Majid Khan told his unlikely and tragic story into the twilight hours of a rare Thursday evening session in Guantanamo Bay.

Khan accepted a plea deal to work as a U.S. government informant back in 2012, and had waited since to tell his story. At 7:34 Thursday evening, the judge presiding over his two-day sentencing trial, Air Force Col. Mark Milam, put that wait to an end.

Khan walked to the podium and began to address the eight military officers who had been empaneled earlier in the day to sentence him. For most of his two-hour-and-six-minute statement, Khan described in detail his treatment in the CIA interrogation program that disappeared and abused terrorism suspects in the years after the Sept. 11 attacks. He is the first detainee to do so in open court. Khan explained how he endured multiple bouts of “water torture” and “sexual assaults” in the form of rectal hydrating and feeding, among other abuses, at the hands of his CIA interrogators from 2003 until his transfer to Guantanamo Bay in 2006.

Khan told the jury that, over the past decade, he’s had to learn to forgive CIA personnel as well as himself for his past mistakes.

“For those who tortured me, I forgive you,” Khan said near the outset of his written statement. “I forgive all y’all.”

The 41-year-old Pakistani, dressed in a black suit and light tie, spoke in accented but clear English as his father and sister sat in the viewing gallery, sobbing intermittently. Khan apologized for his crimes, renounced al Qaeda and said he was hoping to reunite with his wife and see his daughter – who was born after his 2003 capture – for the first time.

Khan gave an “unsworn statement” that was not subject to cross-examination by the prosecution team and has less weight than testimony given under oath. It appeared to have an impact, however. On Friday afternoon, Milam instructed the panel to sentence Khan to 25 to 40 years with a nine-year credit for time served since the 2012 pretrial agreement – a sentencing range agreed to by the parties as part of that earlier deal. Three hours later, the panel returned with a sentence of 26 years for Khan and a letter recommending clemency addressed to the Pentagon official – known as the “convening authority” – who oversees the military commissions and decides the final sentence.

The leader of the panel told Milam that seven of the eight jurors supported clemency. In that handwritten letter, the panel members said that Khan's treatment "in the hands of U.S. personnel should be a source of shame for the U.S. government.”

The result was a largely symbolic victory for Khan. In July, Milam signed off on a revision to the plea agreement in which the convening authority agreed to approve a maximum sentence that could have Khan eligible for release as early as February 2022 with time served. His legal team, led by Wells Dixon of The Center for Constitutional Rights, reached the more favorable sentencing deal after agreeing to forgo an evidentiary hearing that would have involved the testimony of CIA witnesses. (Military commission rules require a formal sentencing by a jury regardless of the details of a plea deal. The panel was not informed of this revised agreement.)

The prosecution’s case at sentencing rested mostly on Khan’s admissions in a “stipulation of fact” agreed to by the government and Khan’s team in February 2012.  One of the prosecutors, Army Maj. Stephen Romeo, read the entire 18-page document over the course of an hour Thursday afternoon. Among Khan's admissions were traveling to Pakistan in 2002 and meeting with Khalid Shaikh Mohammad, the accused mastermind of the Sept. 11 attacks, to begin assisting with al Qaeda operations.

Khan agreed to be a suicide bomber in a failed plot to kill Pervez Musharraf, then the president of Pakistan, in 2002. He also sent $50,000 to the Southeast Asian terror group Jemaah Islamiyah for the August 2003 bombing that killed eight people and wounded several dozen others at the J.W. Marriott in Jakarta, Indonesia. As part of the 2012 deal, Khan pleaded guilty to murder and attempted murder in violation of the law of war for the Jakarta bombing.

At the outset of his statement Thursday evening, Khan told the panel that he did everything listed in the joint stipulation. He said that he was a normal teenager who “smoked weed,” dated girls and aspired to be a DJ after his family fled Pakistan for the Baltimore area in 1996, when he was 16.

He said the death of his mother in 2001 threw his life into “chaos and crisis” marked by a loss of direction. He said he travelled to Pakistan in January 2002 and met with a cousin and other extended family with ties to al Qaeda. Khan said the men exploited him at a vulnerable time in his life. (Unlike Khan, his family members in the Baltimore area eventually became U.S. citizens.)

“I went willingly to al Qaeda,” Khan said. “I was stupid, so incredibly stupid.”

Pakistani authorities captured Khan in Karachi in March 2003. Khan said Thursday that they subjected him to violent beatings in the presence of American interrogators before his transfer to CIA custody, where his situation deteriorated beginning with the first rendition flight.

Khan was stripped naked, searched and given an enema before having a diaper duct-taped around his waist for a flight to a location he referred to as “Prison A.” Khan said that when he later removed the duct tape that had been wrapped around his head, he “ripped” off all of his eyelashes and eyebrows.

Khan said he confessed to his work with al Qaeda in both Karachi and Site A but that interrogators believed he was withholding additional information.

At Prison A and a second black site, Khan said he endured prolonged sleep deprivation and nudity, often hanging by chains in his cell, and other shackled stress positions. He urinated and defecated on himself, or was forced to use a bucket. Interrogators subjected him to regular “water torture” by submerging him in ice water while he was hooded, Khan said.

They also doused him with ice water as he hung by chains in his cold cell, at times with a fan blowing on him. Khan said he at one point lost his “grip on reality” and hallucinated. The standing sleep deprivation led to severe bloating in his legs and feet, causing the ankle chains to tear into his skin. He added that reduced swelling eventually brought a different skin problem.

“My skin peeled like a reptile shedding,” Khan said.

Khan said he was renditioned to a third “long-term site” in the spring of 2004, where he stayed until his transfer to Guantanamo Bay in September 2006. He said that his captors responded violently to his hunger strikes. On one occasion, CIA personnel sharpened the end of a feeding tube and doused it with hot sauce before inserting it into his nose. At another time, Khan said, personnel used a plunger to force feed him down his throat, which led to severe stomach pain and diarrhea.

Khan also said he endured numerous sexual assaults and rapes when CIA personnel rectally fed and hydrated him as punishment for his hunger strikes. At one point, he said, a green garden hose was inserted into his rectum and attached to a faucet.

“I could feel the gush of water going into my rectum,” Khan said.

Khan read from sections of the Senate’s 2014 summary report of the CIA program that described how he was fed rectally with pureed food. He also quoted parts of the report as he described how he attempted to harm himself by cutting and even chewing his own skin.

Khan said his transfer to Guantanamo Bay in September 2006 ended the severe physical torture but brought a continued mental anguish like “death by a thousand paper cuts.” He said he first met his lawyers in October 2007 and immediately proposed cooperating with the government. The panel's clemency letter criticized the government's earlier refusal of legal counsel and failure to charge him for nine years as a "complete disregard for the foundational concepts upon which the Constitution was founded" and "an affront to American values."

On Friday, the lead prosecutor, Army Col. Walter Foster, told the panel members that they should “consider” the CIA’s “rough treatment” but still focus on the higher end of the sentencing range. Foster said that the prosecution had to be the voice of people killed and injured in the 2003 Jakarta bombing – victims who were “shockingly missing” from Khan’s two-hour statement.

Army Maj. Michael Lyness, Khan’s military defense lawyer, countered that Khan “joined Team America” in 2012 and “never looked back.” He also reminded jurors that the “rough treatment” included various forms of torture over three years, including multiple rapes by the U.S. government.

Lyness said that Khan has taken full responsibility for his actions and expressed genuine remorse.

“Since his plea deal, he has done everything that’s ever been asked of him,” Lyness said.

In addition to Khan’s statement, the panel members received several letters of support from his family members prior to deliberating.

Khan does not yet have a country to go to if released early next year. His lawyers said prior to the hearing that concluding the sentencing phase should help push the State Department to move forward on that process.

Khan’s is the first commission to come to a conclusion since the case of Ahmed al Darbi, who received a 13-year sentence in 2017 after pleading guilty to participating in the 2000 bombing of the USS Cole in Yemen. He was transferred to Saudi Arabia the following year to finish his sentence.

Milam called Khan's commission to a close just after 4:30 Friday afternoon.

“Mr. Khan, I wish you all the best in the future,” Milam said.

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GITMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.