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Majid Khan: Anatomy of a Terrorist’S Plea Bargain Charles D ISSUE BRIEF No. 3526 | MARCH 1, 2012 Majid Khan: Anatomy of a Terrorist’s Plea Bargain Charles D. Stimson he first Guantanamo detainee to attacks occurred. After the 9/11 associates, who in turn used some of Thave been in CIA custody (a so- attacks, Khan, who had graduated that money and other funds to carry called high-value detainee, or HVD) from Owings Mills High School out the terrorist attack on the J.W. pleaded guilty yesterday before in Baltimore, traveled to Karachi, Marriott in Jakarta, Indonesia. That a military commission judge in a Pakistan, to “explore the possibility attack in August 2003 resulted in 11 courtroom on the U.S. Naval Base in of entering Afghanistan and under- dead and at least 81 wounded. Guantanamo Bay. In exchange for a standing jihad from close terrorist Khan also discussed with KSM a cap on his confinement related to his associates.”2 plan to return to the United States military commissions case, Majid Once in Pakistan, an unnamed and serve as an al-Qaeda sleeper Khan agreed to testify truthfully in co-conspirator introduced Khan to agent and to recruit others to form a future military commissions cases, Khalid Sheikh Mohammed (KSM), new cell to conduct domestic terror- including against the 9/11 co-con- the mastermind of the 9/11 attacks. ism operations. spirators. The historic plea, which Khan told KSM that his family According to the stipulation of the military judge accepted, is a sig- owned gas stations in the United fact, that did not happen, because “he nificant milestone in the war against States, and they discussed a plot was thwarted only by his capture.”3 terrorism and likely foreshadows to blow up underground gasoline As a result of “irrefutable and cases to come. storage tanks at gas stations in the lawfully obtained evidence,”4 Khan Who Is Khan and What Did United States and poison water res- pleaded guilty to five charges: con- He Do? According to the military ervoirs. KSM ordered Khan to attend spiracy, murder in violation of the commissions charges against Khan training on explosive device deto- laws of war, attempted murder in and the stipulation of fact,1 Kahn nators and timers and then return violation of the laws of war, material was living in Baltimore and working to Baltimore in furtherance of the support for terrorism, and spying. in northern Virginia at Electronic conspiracy. Khan’s Plea Bargain. All fair Data Systems (EDS) when the 9/11 Khan worked at his family gas criminal justice systems include, station in Baltimore for about five and indeed count on, plea bargains. months in 2002 until KSM ordered Military commissions are no dif- This paper, in its entirety, can be found at him to return to Pakistan, which ferent. To date, there have been http://report.heritage.org/ib3526 he did. Over the next few months, six military commissions cases at Produced by the Center for Legal & Judicial Studies Khan worked closely with KSM. He Guantanamo since 9/11. Of those six The Heritage Foundation attempted to assassinate Pakistani cases, four defendants pleaded guilty. 214 Massachusetts Avenue, NE Washington, DC 20002–4999 President Pervez Musharraf by wear- However, the terms of Khan’s (202) 546-4400 | heritage.org ing an explosive vest and lying in wait plea were creative and unique com- Nothing written here is to be construed as necessarily at a mosque. At the behest of KSM, he pared to the four other pleas.5 Here, reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill clandestinely transferred $50,000 the plea required Khan to testify before Congress. to Jemaah Islamiyah and al-Qaeda truthfully against fellow HVDs in ISSUE BRIEF | NO. 3526 MARCH 1, 2012 exchange for a benefit, the major the actual time of any confinement courts-martial. That means that one being a known cap on criminal adjudged by the judge or jury. the members must sentence Khan confinement. Khan was held in CIA custody to any term not less than 25 years Against whom he is expected to from 2003 to 2006, when he was or more than 40 years, but that the testify, the number of cases in which brought to Guantanamo. Knowing Convening Authority will have the he is expected to cooperate, and the that Khan might well ask the judge ultimate say depending on whether “truth” of his testimony is not known for day-for-day confinement credit Khan cooperates fully. at this time. However, it is reasonable for his confinement and/or treat- That unique aspect of the plea to assume that both sides, including ment at the hands of the CIA, the incents Khan to testify truthfully the accused, have a relatively clear government insisted and Khan and cooperate fully to take advan- understanding of what that means in agreed not to ask the sentencing tage of the possible 19-year cap, practice. judge for confinement credit related and it incents the government to In exchange for pleading guilty to his CIA time. bring other HVDs to trial soon to to all five charges, where he faced a The actual sentencing proceeding, take advantage of Khan’s expected maximum possible sentence of life, to be held before a panel of mili- testimony. and testifying against others, his sen- tary officers, will be delayed for four The government also insisted that tence will be capped at 25 years from years,6 ostensibly to give the govern- Khan temporarily dismiss his habeas the date of his guilty plea (February ment time to bring other HVDs to petition and agree not to sue the 29, 2012). trial and utilize Khan’s testimony government, including the CIA, for If he provides full and truthful against them. Per the terms of the his capture, detention, or interroga- cooperation and substantial assis- deal, sentencing will begin the week tion. These two terms are significant tance, the Convening Authority (the of February 29, 2016. victories for the government and entity that “owns” military com- At that hearing, where the govern- may likely be requirements in future missions cases) agrees to a sentence ment will argue its case in aggra- pleas. of not more than 19 years from vation and the defense its case in Another significant term of the February 29, 2012. mitigation, both sides have agreed plea is this: Khan acknowledged and In standard courts-martial, it is that the defense cannot ask for less agreed that the government has the common for an accused to ask the than 25 years, and the government legal authority, under the law of war, court at sentencing for confinement cannot ask for more than 40 years to hold him as an enemy combat- “credit” because of unique circum- confinement. The jury (called “mem- ant even after he serves his 19-year stances related to his pre-trial bers”) will not be told of the unique criminal sentence. treatment. A military judge has the arrangement with the Convening As a legal matter, the law of war authority to give the accused day- Authority, just as members are not allows the government to detain for-day confinement credit in certain told of a sentence cap agreement with the enemy until the end of hostili- circumstances. Those credits reduce the Convening Authority in standard ties. There is not, and never has been, 1. Stipulations of fact are specifically authorized in military courts-martial and military commissions and are routinely used as part of guilty pleas in both justice systems. 2. Stipulation of Fact at 3, ¶ 11, United States v. Majid Shoukat Khan, at http://www.lawfareblog.com/wp-content/uploads/2012/02/Khan-PE001-Stipulation-of-Fact. pdf (March 1, 2012). 3. Ibid., at 4, ¶ 12. 4. Brigadier General Mark Martins, Chief Prosecutor, Post-plea Remarks at Majid Khan’s Arraignment, February 29, 2012, at http://www.lawfareblog. com/2012/02/majid-khan-arraignment-5-prosecution-remarks-to-the-press/ (March 1, 2012). 5. United States v. Majid Shoukat Khan, Offer for Pretrial Agreement, February 13, 2012, at http://www.lawfareblog.com/wp-content/uploads/2012/02/Khan-AE012- PTA.pdf (March 1, 2012). 6. In state and federal court, there is typically a delay between the entry of a guilty plea and the sentencing proceeding. Those delays range from a matter of weeks to months. In regular courts-martial, sentencing proceedings typically begin immediately after the acceptance of the guilty plea. Military commissions’ practice is modeled, for the most part, on courts-martial. A delay of four years between the entries of guilty pleas to sentencing is unusual but not unlawful. 2 ISSUE BRIEF | NO. 3526 MARCH 1, 2012 a requirement that the enemy be Bull”) Gravano was a “made member” General Mark Martins in charge of charged with a crime. Enemy com- and 1976 inductee into the Gambino prosecutions and detailing seasoned batants are detained not as pun- crime family who had worked his national security prosecutors from ishment, but to keep them from way up to hold the No. 2 spot—the the Department of Justice (DOJ) to returning to the battlefield during underboss. After his arrest along military commissions cases. The an ongoing conflict. Unlawful enemy with John Gotti and Paul Locascio in Khan plea was handled by a veteran combatants who have committed December 1990 for a series of mur- DOJ counterterrorism prosecutor war crimes and are charged and ders, racketeering, loan-sharking, who has substantial experience han- convicted of those war crimes can tax evasion, and the like, Gravano dling terrorism cases in federal court.
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