A Window Into the Future: The Plea Bargain of Majid Khan

Guantanamo Bay Naval Base – At 9 AM Wednesday morning, after a decade in detention, Majid Khan was given his day in court. Nongovernmental organizations, media and victims of the Jakarta bombing waited anxiously for Khan's plea in the observation gallery. The gallery was positioned in the back of the commission's courtroom, insulated by double-paned glass and outfitted with five flat-screen monitors and speakers broadcasting the proceedings on closed-circuit television. These speakers would act as our ears – reaching through the soundproof barrier separating observers from court participants.

As Judge Pohl entered the courtroom, the loud speakers remained silent, yet instinctively, all in the gallery rose. The observers stood respectfully and only lowered themselves back into numbered chairs after the judge and counsel found their seats – all the while, loud speakers stayed quiet. Several moments later, the bailiff's voice made an announcement over the PA system, “All rise, the honorable Judge Pohl presiding.” The monitors displayed the judge's recent entrance into the courtroom, the bailiff's request and the immediate compliance of counsel and defendant.

Though only 20 feet away, we were subject to a 30-second delay on video and voice feeds. This, we were informed, was to ensure that we were not exposed to classified information which may be inadvertently disclosed in the session. The resulting effect produced two parallel realities – the slightly slowed reality that existed within the observation gallery and the reality behind the glass, which would not reach us for another half minute. It seemed that these large slats of protective glass offered a 30-second window into the future – offering subtle visual hints of news that was soon to grace us.

While the view into the courtroom was clear, the view into Khan's future was anything but. After belabored discussion of the relevant charges, Judge Pohl explained that, if the plea was entered, Khan would be subject to a sentence ranging from 19 to 25 years, but would not be guaranteed eventual freedom. Pohl took caution to explain that, while Khan's cooperation could translate to a 19-year sentence, it would not alter his status as a detained individual. Thus, Khan may serve a near two-decade sentence and then remain in detention indefinitely. When Khan was asked if he understood this distinction, he replied candidly, “I am making a leap of faith here, sir. That is all I can do.”

Judge Pohl further explained that, as part of accepting the terms of the plea deal, Khan was restricted from bringing suit against the US or its agencies. When asked if this was clear, Khan responded, “basically … I can't sue the CIA or any government agency, whatever happened to me, I can't talk about.” At this moment, the red, flashing “kill switch” was activated and our tether to the proceedings was cut. Static filled the loud speakers and monitors went black. All that remained of the hearing was our soundless future window. The next several minutes unfolded like a silent film; parties bustled about, hands motioned for unknown emphasis and heads nodded in agreement.

Eventually, the video feed resumed and Khan pled guilty to all counts. This painstaking process required Khan to affirm that he fully understood the charges and admitted to committing all elements of each crime. Particularly complicated were the discussions on the conspiracy related charges. The dry and complicated law was dizzying even for well-versed lawyers and law students in the gallery, and Khan's true understanding of the charges was less than convincing.

When asked if Khan was part of a conspiracy that involved high-ranking members of al-Qaeda including Osama bin Laden, Khan replied, “You mentioned Sheikh Osama bin Laden. I've never met him, obviously. I just want to make sure there was no conspiracy with him.” Judge Pohl attempted further clarification and explained that “legally” Khan could have participated in a conspiracy without actually knowing the other co-conspirators. Khan was again stunned by this concept and responded, “You can be part of a conspiracy not even knowing that there is going to be a conspiracy?”

Pohl tried to further clarify by way of example and explained that, while Khan's only task was delivering funds to an associate, because those funds were eventually used to undertake a hotel suicide bombing, Khan could be held liable for the underlying crime. Pohl offered, “When I say 'you did commit the bombing,' I don't mean you personally, but 'you' in the legal sense. Do you understand?” Khan replied, “I'm afraid to speak a little bit…. I delivered the money, I didn't know where the hell the money was going.” Judge Pohl, continued to inform Khan that he was legally linked to the bombing even though he had been captured by authorities several months earlier. Khan believed that the conspiracy ended upon his capture and questioned, “So, even a person who wants to withdrawal cannot withdrawal because they are kidnapped … illegally?”

After much debate, Khan eventually submitted to the elements of conspiracy and the remaining charges of murder, attempted murder, acts in furtherance of terrorism and spying. The judge in the soundless window rose and, reflexively, we did as well. We watched Judge Pohl exit into his chambers, all the while his voice still lingering over the lagging loud speaker. Eventually, the speaking stopped and the window went silent again. The cast of characters behind the glass made friendly motions to one another and slowly filed out of view.

Held for nine years without charge, Khan received an indefinite end to his indefinite detention. But Khan's arraignment and plea not only informed his future, but the future of other high-value detainees who may seek to cooperate with the government as well. With this hearing, expectations were set on both ends of the spectrum. Detainees would need to be offered a sufficiently lowered sentence to justify cooperation and prosecution would need to receive information reliable enough to incentivize the deal.

Whereas once it seemed that the observations from the gallery gave only a window into Khan's future, they may actually inform the direction of all future detainee negotiations.

Editor's note: Coverage of this week's military commission hearing at Guantanamo in the case of US resident Majid Khan is a collaboration between Truthout and Seton Hall University School of Law, Center for Policy & Research.