The U.S. Government’s Entirely Predictable Problems with Resettling Guantánamo Prisoner Majid Khan

Majid Khan, in the most recent photo available of him from Guantánamo.

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By Andy Worthington, August 15, 2022

It’s difficult enough to get out of Guantánamo at the best of times, and considerably more difficult when the U.S. authorities have to find a third country prepared to take in former prisoners, generally because it is unsafe for them to be returned to the countries of their birth.

In dozens of resettlement cases over the years, the U.S. government has made resettlement additionally difficult by refusing to concede that the men in question might have been fundamentally insignificant by sharing assessment files from Guantánamo with the governments of these countries (fundamentally, the files released by WikiLeaks in 2011), which, more often than not, are full of lies about the prisoners, extracted from their fellow prisoners under duress, or through the promise of favorable treatment, to justify their lawless imprisonment (without any adequate screening at the time of capture) in the first place.

Last week, a new twist on these difficulties came to light in the District Court in Washington, D.C., as Justice Department lawyers sought to prevent a judge from addressing a habeas corpus petition submitted by the Pakistani national Majid Khan, who has been imprisoned at Guantánamo since September 2006, and who previously spent three and a half years in CIA "black sites," where he was subjected to torture.

Finding a new home for Majid Khan

The problem for the U.S. government is that Khan needs resettling, but is a convicted terrorist, making the task of finding a compliant country an even more uphill struggle than is the case with men charged and convicted of nothing, and merely portrayed as significant in their fundamentally worthless intelligence files.

Khan’s conviction is a fact, but the story behind it ought to thoroughly mitigate any security fears countries approached by the U.S. might have regarding resettling him.

In 2002, at a low point in his life, when he was distraught at the death of his mother, Khan, a legal U.S. resident who had grown up in Baltimore, was preyed on by Al-Qaeda sympathizers in his own family on a visit to Pakistan, and ended up couriering money that was used to finance a terrorist attack, in which civilians were killed. However, from the time that he was first seized, in March 2003, Khan sought to cooperate with the U.S. authorities, having recognized that what he did was wrong, and seeking to make amends.

Instead, the CIA decided to torture him, and, even after his transfer to Guantánamo in September 2006, the abuse continued. It was only when he was finally able to meet his lawyers, at the Center for Constitutional Rights, that negotiations with the U.S. authorities began, whereby Khan would thoroughly cooperate, by providing evidence in other terrorism-related cases, in exchange for receiving a plea deal, which would guarantee his release ten years later, in the military commission trial system that the Bush administration dragged out of the history books in the wake of the terrorist attacks of September 11, 2001. That plea deal was agreed at the end of February 2012, and last October Khan’s sentencing finally took place, leading, as planned for ten years, to a sentence that ended on March 1 this year.

Despite having had ten years to prepare for this moment, however, the U.S. authorities had failed to find — or, I suspect, to even look for — a third country prepared to offer him a new life, which is necessary because Khan can’t be sent back to Pakistan, to be reunited with his wife and daughter, because his life would be in danger as a result of his extensive cooperation with his captors.

In their filing challenging Khan’s habeas petition, the Justice Department pointed out that, since Khan’s sentence ended, "the Department of State has engaged eleven countries on the possibility of accepting Petitioner for resettlement."

The Justice Department’s lawyers stressed that the government was "giving a high priority to effecting [Khan]’s transfer because … it is in the Government’s national security interests to encourage cooperation by individuals accused of acts of terrorism or other offenses triable by military commission."

This is why, while insignificant prisoners at Guantánamo, approved for release through internal administrative processes, can languish there for years without actually being freed, the handful of individuals convicted in the military commissions, mostly through plea deals, have generally been released when were told that they would be, as stipulated in their plea deals, and it remains significant now, as the U.S. is actively engaged in discussions regarding plea deals with some of the ten men (out of the 36 still held) who are currently facing charges, and one of the ten, Abd al-Hadi al-Iraqi, recently finalized a plea deal that should see him being released in two years’ time.

Never before, however, has a third country had to be found for one of the handful of men convicted in the military commissions, and while it’s evident from Khan’s story that he is a thoroughly repentant individual who wouldn’t pose a security threat to anyone, it’s also understandable that potential resettlement countries might worry about how any decision to resettle him would be received by the most alarmist parts of their media or their political establishments.

The irony, of course, is that, as a cooperating witness, Khan would, in normal circumstances, have been put in a witness protection program in the U.S., given a new identity, along with his family, and helped to establish a new anonymous life, but because his story involves Guantánamo, all the normal rules have been jettisoned. As the Justice Department lawyers explained, "release into the United States [is not] possible because U.S. law expressly prohibits the use of funds for the transfer of detainees from Guantánamo Bay to the United States."

That ban on bringing Guantánamo prisoners to the U.S. mainland for any reason — for urgent medical care that is impractical or impossible at Guantánamo, or for trials or ongoing imprisonment, for example — has been part of the annual National Defence Authorization Act (NDAA) for ten years now, since Republicans gained a majority in Congress in the first midterm elections under President Obama and cynically introduced a raft of onerous measures relating to Guantánamo, and it has, sadly, been maintained ever since, as Democrats have not, since 2010, had a majority in both the Senate and the House of Representatives.

Now, however, it is not beyond reason to suggest that an exception will need to be made for Majid Khan if no other country can be found that will take him in, to avoid the U.S. falling foul of the law in the only place it operates at Guantánamo — in relation to convictions and plea deals in the military commissions.

The government's case

Because of the government’s ongoing efforts to find a third country to offer a new home to Majid Khan, the Justice Department’s lawyers urged Judge Reggie B. Walton, hearing the case, not to grant his petition, in which he argued that, "if [he] is not released within 30 days, the Court should order a hearing to address his conditional release into the Migrant Operations Center operated by the State Department and the Department of Homeland Security at Naval Station, Guantánamo Bay, or release him into the custody of his family in the United States."

To be fair to the government, neither of those options is possible, given current laws, and it is clear that serious efforts are being made to find a third country for Khan and his family, although some of the arguments that took place during the hearing served not to reinforce the government’s case, but simply to highlight the predicament in which Khan still finds himself.

In response to Khan’s claim that his current conditions of detention are "essentially solitary confinement," as Carol Rosenberg described it for the New York Times, Army Col. Matthew Jemmott of the Army, the prison’s warden, claimed in an affidavit that, instead, he "socializes with FBI agents, prison guards, military lawyers and top prison officials during 'religious feasts, social meetings and meetings regarding detention-related issues.'"

Col. Jemmott also said that Khan "was entitled to quarterly calls with family through a prison program called the Detainee Interactive Call Experience, but that he had declined his last two offers." Rosenberg added that the program — DICE — "has been described in court as stop-and-go, intelligence-monitored conversations. A security officer listens to what the prisoner wants to say on the call and decides on the spot whether to release the audio to the family member. The relative’s response is also on a censored delay." No explanation was given about why Khan has "declined his last two offers," but it may be reasonable to assume that he is despondent at still being held over five months after his sentence ended.

In addition, as Rosenberg also explained, Justice Department lawyers also stepped into profoundly dubious territory, claiming that, regardless of the end of his sentence, his ongoing imprisonment "was lawful because 'hostilities with Al Qaeda remain ongoing,'" and "cited the drone strike by the CIA last month that killed the movement’s leader, Ayman al-Zawahiri, in Kabul, Afghanistan, as proof that the war had not ended."

That was a low blow, as it has always seemed profoundly unjust to suggest that anyone held at Guantánamo can continue to be held, even if they have been tried and convicted and have reached the end of their sentence, as the Bush administration argued from the prison’s early days, and it will, presumably, do nothing to reassure Majid Khan that the government is, as it claims, doing all it can to find him a new home.