Khan Today, Who Tomorrow: Repugnant Finely Tuned Conviction Machines

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Over at lawfareblog.com, the presentation of the guilty plea by Majid Khan in the military commission is done.  Reading what he admits to is terrible to read – he is accused of, admits to, and is convicted of, many many awful things.

Along with the transcript of the hearing  before Military Judge Pohl and the documents for the case there is a press statement by Chief Prosecutor Mark Martins dated February 29, 2012 in which he states, among other things (it is available at http://www.lawfareblog.com/2012/02/majid-khan-arraignment-5-prosecution-remarks-to-the-press/#more-6176):

“In conclusion, I will note that astute observers familiar with international terrorism prosecutions in the federal courts have predicted that military commissions would need to decrease the level of legal uncertainty in order to develop into a more effective part of our national security and justice institutions.  I submit that what you have seen today is just that.  Today, you saw in open court an intelligent defendant accused of serious violations of the law of war.  He has been well-advised by a zealous and competent team of three defense counsel, having regular access to that defense team.  He faced overwhelming and admissible evidence of guilt, resulting from thorough criminal investigation and prosecution work.  And he decided to plead guilty to his crimes, to accept responsibility for his actions, to face up to a long sentence of confinement, and to fully acknowledge the lawfulness of his detention to date as a belligerent despite previous denials.  Experienced criminal justice practitioners will tell you that this requires predictability in outcomes, both as to what the system will determine with regard guilt or innocence and on what charges, and as to what the system will adjudge as a sentence on those charges.  Such predictability was achieved here, and the agreed-upon outcome upholds the interests of the people of the United States, the security interests of our nation and other nations, and the interests of justice.

The reforms incorporated into the 2009 Military Commissions Act, resulting from action by all three branches of our government and review by our federal courts, have reduced the legal uncertainty of the system and made it more predictable in its outcomes.  While appreciating the criticisms leveled by concerned Americans and international partners, we believe that these reformed military commissions are fair and that they serve an important role in the armed conflict against al Qaeda and associated forces.  There is increasing evidence that the American people support this view, and we aim to be worthy of their trust. Your military exists to fight our nation’s wars, not to police its streets.  We do not lobby for missions, and we did not lobby for this one.  But we will carry out this assignment, as customary with other assignments, with integrity, dedication, and skill, and availing ourselves of expertise from across the federal government. When called upon to try those within our jurisdiction who have violated the laws of armed conflict, we will do so faithfully, transparently, respectful of the various roles within an adversarial system, and in accordance with the rule of law.  Thank you.”

I understand that it may be considered bad form to write what I shall put here, but, I feel it is my duty as an American citizen to point out that in the agreement Mr. Khan agrees to not challenge what happened in his detention (available at http://www.lawfareblog.com/wp-content/uploads/2012/02/Khan-AE012-PTA.pdf), to wit:

“Once my guilty plea is accepted, I will not initiate any legal claims against the United States Government, any United States Government Agency or official, or any civilian or civilian agency regarding my capture, detention, or confinement conditions prior to my plea. I further agree to withdraw or dismiss without prejudice any pending litigation regarding my capture, detention. confinement conditions, or alien unlawful enemy combatant or alien unlawful enemy belligerent status. Notwithstanding the foregoing or any other provision of this Offer or Appendix A, after I have served any unsuspended portion of an approved sentence to confinement, I retain the right to seek release from the appropriate United States authorities by challenging my continued detention, if any, through a petition for a writ of habeas corpus or other available remedies.”

In the hearing before Military Judge Pohl, when it comes to questions of what happened in his detention (including at CIA black sites) the summary that is provided at lawfareblog.com states:

“Judge Pohl verifies that Khan waives his appeals rights and gives up the right to collaterally attack his conviction. He also verifies that Khan understands that under the PTA, he can’t litigate or challenge the circumstances of his capture or detention–except that after he has served his approved sentence, he retains the right to challenge any continued detention through habeas. Khan says he understands that he can’t sue the CIA for what happened in the past and that the government can still hold him after he does his time–that this agreement does not guarantee that he will ever go free.

“I’m making a leap of faith here, sir,” he says.

Judge Pohl also clarifies that Khan has agreed to seek dismissal of his pending habeas petition without prejudice.

At this point, the audio gets blocked, presumably because Khan has mentioned his CIA detention. When it comes on again, Judge Pohl instructs him not to discuss any individual agency of government–whereupon the feed briefly goes out again.”

And with that, Majid Khan moves into a world over the next four years in which he is to cooperate in testifying against other detainees and await his final sentencing at that point four years in the future – presumably after he has done his testifying.

The chief prosecutor appears to want to assure us that all that has happened here is perfectly fine.  If you come to the same conclusion urged upon us by the prosecutor that justice has been done and seen to be done with this outcome, may I suggest another view: the finely tuned conviction machine has been carefully oiled and calibrated to do its work more efficiently.

The decrease of  the level of legal uncertainty has not been the complaint with this system that I have made.  Rather the complaint that I have made is with the respect of judicial norms.  In a perverse way, the use of the phrase “decrease of the  level of legal uncertainty” makes me think that I am hearing further Orwell speak that through euphemism is really saying “increase the certainty of conviction.”  In other words, the intelligent people who have revamped the system over the years have made (through the forms used) the military commissions appear more likely to provide justice but I see that as a gloss.  In practice, as strikingly evidenced by the cut of the feed, these military commissions are machines that assure that the ordinary citizen does not hear in open court what has been done in his or her name.  Only the cognoscenti – all who have a stake in not having information revealed – are allowed to hear what really happened.  Repugnant!

These guilty plea cases appear to be the American version of the 1930’s Soviet show trials – complete with gulag.  Well, given all the things that Majid Khan stipulates as fact, I guess we Americans are to sleep well at night that this was the right guy picked up and convicted by the forces of the American state, that the three branches of our federal government have acted properly, and all is right in the world.  As the French policeman was jokingly said to say “Circulez, il n’y a rien a voir.”

All  in  this package seems to be tied together too neatly for my taste.  It is in the neatness that we see just how finely tuned the conviction machine has been made to come – in a bipartisan manner.  We are not duped, it is repugnant what is being done here by my country.

Not that anyone really appears to care in this election season.  Being insistent on due process over ersatz process appears to now be definitely demode for both the Bush and Obama Administrations. So it goes. Still does not change the fact these military commissions are unlawful (See Jordan J. Paust, Still Unlawful: The Obama Military Commissions, Supreme Court Holdings, and Deviant Dicta in the D.C. Circuit, Cornell International Law Journal Vol. 45, No. 2 2012 http://ssrn.com/abstract=1997478.