A Guantanamo Inmate Becomes a Prison Snitch

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A detainee has agreed to testify against his fellow prisoners in exchange for leniency. But after years of suffering, and even a suicide attempt, can his testimony really be trusted?

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Reuters

Let us pause for just a moment to ponder the ramifications of the news this week that military prosecutors at the terror-law prison at Guantanamo Bay, Cuba, now will be pitting one detainee against another in open court should any of the cases down there ever make it to trial. Carol Rosenberg, with more brilliant coverage of Gitmo for The Miami Herald, reports that the new strategy is "part of an evolving effort to quell criticism that confessions were extracted through torture by offering live testimony from willing captive witnesses."

Willing captive witnesses. There's another phrase for that: "prison snitch." So steps to the plate as the first batter for prosecutors a detainee named Majid Kahn, a Pakistani-born fellow who went to high school near Baltimore, who allegedly joined al Qaeda after September 11, 2001, and who allegedly helped funnel money to another current Gitmo prisoner, Riduan Bin Ismouddin, otherwise known as "Hambali." He, in turn, is accused of masterminding the 2003 bombing of a Marriott Hotel in Jakarta, Indonesia. At least, that's Rosenberg's version.

Charlie Savage of The New York Times has a different view. According to his sources, Khalid Sheik Mohammed, the 9/11 mastermind himself, 

selected Mr. Khan to carry out follow-up attacks in the United States because of his English language abilities and familiarity with the country. Officials say the two discussed blowing up gas stations and poisoning reservoirs, among other plots.

Rosenberg and Savage are probably both right, which helps explains why Kahn has been held, without trial, in military custody at Gitmo since 2003. 

Whatever he did, or is accused of doing, Kahn evidently made a deal recently with his captors and now has promised to testify against his fellow detainees over the next four years in exchange for some sort of leniency, to be determined later. Reports of the deal suggest that Kahn will testify both against Hambali for the 2003 bombing and perhaps against Mohammed as well for the latter's role in the terror attacks of September 11, 2001. The news has been leaking for days; officials are expected to formalize (and publicize) the deal Wednesday.

And why wouldn't the feds want Kahn turning state's evidence? He speaks English well (which is probably why Mohammed allegedly wanted him involved to begin with) and is now clean-cut (wearing wire-rimmed glasses at the hearing Wednesday). He may not be an American citizen -- though he was lawfully in the country on 9/11 and afterward -- but he's evidently American enough. And his alleged direct ties to Mohammed make him both a "high-profile" detainee as well as an obvious choice for the feds to flip.

What Kahn's turnaround really means is that testimony that is by law too unreliable to incriminate Kahn himself now will be introduced to incriminate other detainees. The Fifth Amendment prohibits the use of evidence obtained through torture or other forms of coercion against the person who made the incriminating statements. But the Fifth Amendment does not prohibit the use of such testimony against third parties. Whether such testimony could reasonably be considered accurate and reliable, on the other hand, is a whole different story.

Back to Rosenberg, from her Herald piece:

A year [after Kahn was captured], defense attorneys filed a brief in federal court declaring him a torture victim of the CIA's enhanced interrogation program. "Khan admitted anything his interrogators demanded of him," his lawyers wrote, "regardless of the truth, in order to end his suffering." According to transcripts, Khan told a military board in April 2007 that he emerged from CIA custody so despairing of his isolation that he tried to kill himself by chewing through an artery in his arm.   

This is the guy whose story military prosecutors are going to endorse in court against other detainees. This is the guy who is going to be subject to cross-examination by lawyers for Hambali and Mohammed. This is the guy who is going to promise that he is telling the truth now. Remember when Attorney General Alberto Gonzales called men like Kahn "killers" and when President George W. Bush called them "the worst of the worst"? Six years later, Kahn has a new name: star government witness. It's mind boggling. 

I don't blame Kahn. He's doing whatever he can to get out of Gitmo. And I don't necessarily blame the Obama Administration for using the convenient tactic of turning the detainees against one another to expedite trials for some of the prisoners. What other choice do the feds have now that Congress has limited their ability to transfer the men to the States for federal civilian trial? In any event, whatever else Kahn's testimony will do, the whole episode gives new meaning to the phrase "by hook or by crook."

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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