Fordham Law


A Turning Point in Terror Prosecutions

Karen J. Greenberg in Baltimore Sun, February 29, 2012

Media Source

By Matthew Hay Brown

Former Baltimore County man pleads guilty in hotel bombing, agrees to help government prosecute other terror suspects

The conviction of a former Baltimore County man in a deadly hotel bombing in Indonesia is seen as a turning point in the long-delayed prosecution of terror suspects at Guantanamo Bay.

Majid Shoukat Khan, who on Wednesday admitted to conspiring with Osama bin Laden and 9/11 mastermind Khalid Sheikh Mohammad in plots in Indonesia, Pakistan and the United States, is the first of the 14 so-called high-value detainees at Guantanamo Bay to be convicted. The suspects have been implicated in some of the deadliest attacks of the past decade.

Under a plea agreement, the Owings Mills High School graduate will serve no more than 19 years for his role in the 2003 suicide car bombing at the J.W. Marriott Hotel in Jakarta that killed 11, as well as other plots, in exchange for cooperating with the government in the prosecutions of his former comrades.

Experts say his testimony could give the government new insights into the workings of al-Qaida. It also could allow prosecutors to sidestep the problem of using evidence obtained through coercion, which has been a deterrent to bringing these cases to trial.

The "clean" evidence Khan could provide "takes away what has haunted these cases from the beginning, which is how much of this evidence was going to come from torture by U.S. hands," said attorney Karen Greenberg, director of the Center on National Security at Fordham Law School. "It's a huge logjam that would break through."

Michael Greenberger, law professor and director of the Center for Health and Homeland Security at the University of Maryland, said Khan's experience with al-Qaida in the weeks and months after the attacks of Sept. 11, 2001, makes him uniquely valuable to the government.

"The intelligence value gathered from somebody who was on the inside and familiar with the kinds of plots that were being planned in 2001 and 2002 — that's critically important information," Greenberger said.

Khan, 32, pleaded guilty to war crimes that included murder, spying and conspiracy in the hotel bombing and in plots to kill Pakistan President Pervez Musharraf in Karachi and to blow up gas stations in the United States.

Appearing Wednesday before a military commission at Guantanamo Bay, Khan admitted to working with Mohammad and conspiring with bin Laden, though he said he never met the al-Qaida leader.

News reporters watched the arraignment from Fort Meade via secure video feed.

In the unusual plea agreement, Khan's sentencing is to be delayed for four years, during which he apparently will testify against Mohammad and other detainees awaiting trial at the U.S. base in Cuba.

If he gives prosecutors his "full and truthful cooperation," he will be sentenced to no more than 15 more years in prison. He still could be detained as an enemy combatant after his sentence is complete, but would be allowed to petition for his release.

Khan told the military judge, Col. James L. Pohl, that he understood the terms.

"This agreement does not guarantee that I will be able to get free, even after I do my time," he said. "I'm taking a leap of faith here, sir. That's all I can do."

Khan was relaxed and respectful in his responses to Pohl. He appeared in a suit and shorn of the thick beard in which he had been photographed.

At the outset of the proceeding, he affirmed that he understood English and said he would ask his attorneys to clarify anything he didn't understand. He said he was satisfied with his defense team but wished to add a Pakistani government attorney "down the road" for his sentencing.

After the proceeding, his lead military attorney said Khan had approached the government about a deal because he "wanted a second chance at life."

"I can tell you he's remorseful," Lt. Col. Jon S. Jackson said. "He wishes he had never been involved with al-Qaida.

Now, Jackson said, Khan wants to "join Team America and do the right things to ensure that he has a chance to have a productive, meaningful life."

The chief prosecutor said it was commendable that Khan had accepted responsibility and expressed remorse. But he also said it was "instructive" to review the offenses of which he has been convicted.

"Our hearts go out to the surviving victims of and to the family members of those who did not survive the Marriott hotel bombing," Brig. Gen. Mark S. Martins said. "Be confident that the United States is committed to accountability under law for those who have plotted to attack peace-loving people."

Attending the hearing at Guantanamo was Patricia Pond, a California businesswoman who suffered severed tendons, burns and lacerations in the hotel blast. She told reporters Wednesday that she contracted HIV from a dirty needle while being treated in Jakarta for her injuries.

She said the sentence "seems fair to me."

"The person who actually drove the truck is long gone," Pond said. "Majid Khan was not one of the ones who actually planned that specific terrorist event."

Eugene Fidell, a retired Coast Guard attorney who teaches military justice at Yale University, said the government has performed a "justice cost-benefit analysis" in agreeing to the plea in exchange for help with higher-profile detainees. "You have to assume they've taken a hard look at the trade-offs."

A native of Pakistan, Khan was a teenager when he moved with his family to Catonsville in 1996. After graduating from Owings Mills High School in 1999, he worked at his family's gas station and in a succession of office jobs.

He was employed as a database administrator in an office building in Tysons Corner, Va., on Sept. 11, 2001, when American Airlines Flight 77 slammed into the Pentagon.

Prosecutors say he watched the smoke rising from his office window and soon became radicalized.

Khan acknowledged traveling in January 2002 from Baltimore to Pakistan, where he was introduced to Mohammad as someone whose familiarity with the United States might make him useful to al-Qaida.

He admitted telling Mohammad that his family owned gas stations and discussing a plot to blow up underground fuel tanks. Mohammad then directed him to attend training on explosive device detonators.

Khan returned to Baltimore in March 2002, bought a laptop computer for al-Qaida and contacted a military recruiter to obtain materials that he intended to give to Mohammad.

He acknowledged taking $50,000 in al-Qaida funding from Pakistan to Thailand — money that would help finance the hotel bombing.

He told Pohl he did not know the details of the plot, which was carried out after he was captured in March 2003, but said he understood that it would include killing people.

"I did not know where the money was going," he said. "But I voluntarily did that."

He acknowledged recording a martyr video, donning an explosive vest and waiting in a mosque for Musharraf to arrive. Musharraf did not show up.

At a hearing in 2007, Khan had vehemently denied the allegations.

"I am not al-Qaida. I am not an enemy combatant, and there were not any terrorist acts," he said then. "How can a homeowner in Baltimore, Md., be an enemy terrorist?"

He also said he had been tortured while in CIA custody. Under terms of the plea agreement, he would forfeit his right to sue the government.

Nonetheless, his defense team indicated plans to raise his treatment at his sentencing hearing.

"He was tortured, and he was tortured very badly," said J. Wells Dixon, an attorney with the Center for Constitutional Rights who has helped to represent Khan. Just as his client has accepted responsibility for his actions, Dixon said, so should the United States.

Fidell said it was "interesting and potentially important" that the "stone wall" among terror suspects "is being eroded."

"You're seeing one detainee testify against another," he said. "So, I'm sure the government is relieved to be in that position."

But he added that the slow pace of the prosecutions at Guantanamo Bay makes if feel as if "one has entered the fifth dimension, where time proceeds according to a different clock."

"Mr. Kahn might be in limbo in terms of his sentence for four years, which in turn tells me that the government's thinking that it may not be done with trial of everybody they hope he will testify against for four years," Fidell said. "There is a different kind of slow-motion administration of justice that's happening already in all of these cases."