Prosecutors in the Office of Military Commissions at Guantanamo Bay have informed some attorneys defending “war on terror” detainees that their clients could be removed from the indefinite detention list and eventually released from the prison facility if they agree to cooperate and testify against certain prisoners selected for prosecution before the tribunals, according to emails obtained by Truthout and interviews with a half-dozen military defense lawyers who were briefed about the discussions.
Prosecutors have also told the attorneys if detainees agree to this arrangement they would be eligible for transfer to a special communal camp, currently under consideration by Joint Task Force-Guantanamo officials, that would be designed specifically to house cooperating detainees where the conditions of their confinement would be greatly improved.
The military attorneys, who requested anonymity in order to openly discuss and share internal details they have learned about the prosecution of terrorism suspects before military commissions, added that previous chief prosecutors in the Office of Military Commissions had fiercely opposed providing detainees with incentives in exchange for their cooperation.
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Capt. Edward White in the Office of Military Commissions, Office of the Chief Prosecutor is the government official attorneys were told to contact if they were interested in arranging meetings to discuss whether their clients wanted to cooperate with the prosecution, the military attorneys said.
The talks took place during the first week of February. According to an email written by a prosecutor in the Office of Military Commissions, Brig. Gen. Mark S. Martins, Guantanamo's chief prosecutor, has already put together a list of detainees he intends to prosecute, which he prioritized and made up of cases Martins strongly believes he can win. The identities of the detainees on that list is unknown.
There are still 171 detainees imprisoned at Guantanamo. More than half have already been cleared for release. Thirty-six are expected to face war crimes charges and the remainder were deemed by an Obama administration task force as being too dangerous to release or too difficult to prosecute because the evidence against them was obtained through torture.
Martins, who became chief prosecutor in October, has informed his staff, according to another email written by the same military prosecutor, that he is interested in obtaining information about detainees he intends to prosecute that will help the government secure convictions. The detainees who cooperate with the prosecution and show a willingness to testify against other prisoners, in a manner that “pleases” the government, would receive plea deals for the terrorist-related crimes they are accused of and could eventually be repatriated to another country.
“Proffer” sessions have already taken place between some defense attorneys and detainees, where the prisoners have discussed what evidence they can offer the prosecution for use in war crimes trials, the prosecutor's email says.
Reached for comment, Pentagon spokesman Lt. Col. Todd Breasseale told Truthout, “legal discussions that take place amongst members of the government's prosecution team are not appropriate for me to discuss.”
But, he added, “It is well established in civilian as well as military criminal justice systems for suspects, accused persons, and other witnesses to provide testimony and cooperation to authorities.”
“The prosecution and defense maintain an open dialog and every legal option remains a consideration for all individuals suspected or alleged to have committed crimes triable by military commission,” Breasseale said.
As for the possibility of moving detainees to a special camp designated to house cooperating prisoners, Breasseale said he “won't discuss the security apparatus that surrounds either the detainees or those who work in and around Joint Task Force-Guantanamo Bay.”
It appears that Martins' proposal was attractive to Majid Khan, a high-value prisoner, who was charged February 15 with conspiracy, murder and attempted murder and providing material support for terrorism in violation of the laws of war.
On Wednesday, according to a report published in the Washington Post, Khan, 31, a resident of Baltimore, accepted a plea deal and will cooperate and testify against other detainees in exchange for a reduced sentence that could result in his repatriation to Pakistan in four years.
Khan, who was held at CIA black site prisons in Europe and tortured before being transferred to Guantanamo in 2006, has already been moved out of Camp 7, the facility that houses about 13 other high-value prisoners. His is the first plea deal the government has reached with a high-value detainee. He is the only legal US resident held at Guantanamo.
Since being transferred to Guantanamo, Khan has twice attempted suicide by chewing through his arteries, The Washington Post reported, citing the transcript of a 2007 hearing released by the Department of Defense.
One of the guards at the high-value detainee camp where Khan was held had attended the same high school with him in Baltimore, although the two men did not know each other, according to military sources.
The guard, who was attached to a Maryland National Guard military intelligence unit, was handpicked for the job because of his close connection to Khan, said the military sources.
Guantanamo officials believed the guard, who worked at Camp 7 between September 2006 and March 2007, would be able to obtain intelligence from Khan about self-professed 9/11 mastermind Khalid Sheikh Mohammed and al-Qaeda's operations.
Mohammed's war crimes tribunal, along with the tribunals of other 9/11 co-conspirators, is expected to begin in the spring. Some of Khan's alleged terrorist activities were conducted under Mohammed's direction and its believed Khan will cooperate with the prosecution's case against Mohammed and perhaps even testify against the al-Qaeda leader.
Neither Khan's military attorney nor his civilian lawyer at the Center for Constitutional Rights in New York could be reached for comment. Khan's attorneys declined to comment on the plea deal when The Washington Post contacted them.
Breasseale told Truthout, “there is a well-defined procedure for pre-trial agreements between the government and an accused person,” which he said is “identical to that used in courts-martial and comparable to that used in the federal system.”
“Any agreement must be in writing and must be freely and voluntarily entered into by an accused,” Breasseale said, adding, “I make no representation about any individual case.”
Col. Morris Davis, the former Guantanamo chief prosecutor, said he was not “the least bit surprised” about the deal prosecutors struck with Khan.
“I predicted the Majid Khan deal a week ago when I saw the convening authority referred charges to trial less than a day after he got them from Martins where before it was weeks between charging and referral,” Davis said in an interview with Truthout. “If there wasn't a deal they would have at least wanted to give the appearance of giving the case some thoughtful consideration before the convening authority acted.”
When he was prosecuting detainees for war crimes, Davis had a strategy “for the order in which I wanted to arrange” them, which he said may be similar to the way in which Martins is handling the cases.
“Like ordinary organized crime cases, the prosecution usually wants to start at the bottom of the pyramid and cuts deals with the small fish and then work their way up the food chain to bag the big fish,” said Davis, who resigned from his position in October 2007. “When I was [chief prosecutor] during the Bush administration, there were a number of obstructionists, like [Undersecretary of Defense for Intelligence] Stephen Cambone, who had no interest in declassifying information for use in trials. They thought that if we can detain these guys indefinitely until the war on terror is over … which is not in this lifetime … then why expose intel to the light of day and risk an acquittal? Back then it wasn't a question of doing cases in a logical order, it was just a battle to try and get a case … any case … to a stage where we could get it to court.”
“I suspect Martins is proceeding in a logical order and is interested in deals with low and mid-level detainees if they can help him shore up cases against the main players like [Khalid Sheikh Mohammed] and al-Nashiri,” Davis added. “It probably helps that several more years have gone by and after a decade or more behind bars the detainees would welcome a chance to see light at the end of the tunnel.”
Moreover, Davis said, “It's an election year and it helps the administration with critics on both sides to show some forward progress.”
Still, Stephen Truitt, a habeas corpus attorney who represents Yemeni citizen Hani Abdullah, told Truthout, while plea deals and cooperation agreements “is certainly normal prosecutorial conduct, the fact that the reward is termination of illegal behavior, adds an ironic nuance of 'cooperate and I will no longer throw away the key to your jail.'”