Majid Kahn and the Pentagon's "Let's Make a Deal" Strategy
Under the plea deal, a military jury will hear the case and sentence Khan in 2016. The jury can order him to serve up to 40 years, after which a military judge would reduce it to at-most 25 years. A senior Pentagon official would then have the authority to suspend any or all of it. Once the sentence is over, it would be up to the Executive Branch to decide whether to keep him as a post 9/11 war-on-terror prisoner like the vast majority of the 171 captives here.
Legal Analyst Andrew Cohen's take, A Guantanamo Inmate Becomes a Snitch, raises concerns about the reliability of Kahn's future testimony, as I did below.
Original Post: 2/27/12: Carole Rosenberg at the Miami Herald reports on the Pentagon's new strategy for Guantanamo cases: Cooperate and work your way out of a major sentence, so cases without torture evidence can be made against others.
Majid Kahn, 31, has been held in detention since he was 23. He wasn't part of 9/11. How reliable is his information? Is his memory the product of what he was fed over years of interrogation or truly his own recollections?
If Majid Kahn testifies against the 9/11 defendants, or other detainees against whom up until now the Pentagon has had no case, will the Pentagon prosecutors vouch for him, feeding the military jury with a trite line like "Crimes committed in hell don't have angels as witnesses?"
The testimony of cooperators is purchased testimony and inherently unreliable. It is testimony the Government purchases with promises of leniency, and freedom is a commodity far more precious than money. The incentive to lie is enormous and the practice has made our criminal justice system morally bankrupt. Now it's about to infect the already flawed Military Commission trials.
If the Pentagon can't make its cases without torture evidence, adding dubious cooperator testimony is not the answer. Just close Guantanamo and either try the remaining detainees in federal court (where the prosecutors, defense counsel and even jurors are by now adept at presenting, defending against and evaluating cooperator testimony) or send them home.
It may not matter in the end with Majid Kahn, whom I suspect the Pentagon has no intention of calling as a witness and is just putting the potential witness language in to justify the deal. It sounds more like they want to dump the Kahn case because they can't prove the charges but can't admit that after they held the guy for 8 years. And Majid Kahn, like most defendants facing a potential life sentence, will take the deal because he's assured of going home at some point, and sooner rather than later. It's just too risky for him to throw the dice, even with a defensible case.
But it well may matter with other detainees, especially those the Pentagon has little if any evidence against. Until now, the only option for them has been indefinite detention without charges, which has raised objections around the world. Now, the Pentagon can put more detainees on trial in military proceedings, which get little coverage and even less scrutiny from the media, banking on dubious oooperator testimony to convict. A very slippery slope indeed.
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