As Majid Khan Asks a Court to Order His Release from Guantánamo, 100 Days Since Completing His Sentence, 20 Other Prisoners, Never Charged or Tried, Also Await Their Freedom

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By Andy Worthington, June 18, 2022

On paper, the prospects for the closure of the prison at Guantánamo Bay are better now than they have been at any other time in its unforgivably long and bleak 20-year history.

Just 37 men are still held (less than five percent of the total number of prisoners held by the U.S. military since the prison opened on January 11, 2002), and 21 of these men have been approved for release.

The problem, however, is that there is absolutely no sense of urgency within the Biden administration when it comes to freeing them.

20 of these men have been approved for release by high-level government review processes, and I’ll be discussing them in the second part of this article, but the most newsworthy aspect of this story right now concerns Majid Khan, the other man approved for release.

One of a shockingly small number of prisoners in Guantánamo who were credibly accused of involvement with terrorism, Khan, now 42, moved with his family from Pakistan to the U.S. when he was a teenager, but, distraught after the death of his mother, was preyed on by Al-Qaeda sympathizers in his family after visiting his wife in Pakistan, eventually helping to transfer money that was used to finance a terrorist attack in Indonesia in August 2003 (although he was never told what the money was for).

By that time, however, he was already in U.S. custody, having been seized in Karachi in March 2003. He then spent three and a half years in CIA "black sites," where he was subjected to torture, despite having been remorseful from the very beginning of his imprisonment, and, throughout, having told his captors the truth.

In September 2006, he was finally moved to Guantánamo, with 13 other "high-value detainees," but he wasn’t allowed to meet the lawyers representing him, at the New York-based Center for Constitutional Rights, until October 2007, and it then took many more years for the authorities to accept that, in exchange for him becoming a cooperating witness (almost certainly the most significant in Guantánamo’s history), he should be offered a plea deal.

That plea deal finally emerged on February 29, 2012, two weeks after he was formally charged via the military commissions, and last October, after having continued to cooperate on cases involving men at Guantánamo and elsewhere, his sentencing hearing finally took place, at which he was allowed to deliver an extraordinary public statement about his experiences, which I transcribed and posted here and here.

On March 11 this year, Army Col. Jeffrey D. Wood of the Arkansas National Guard, the Convening Authority for the military commissions, confirmed that, although Khan had received a 26-year sentence, he was officially reducing that sentence to ten years, meaning that it ended on March 1.

Over three months later, however, Majid Khan is still held, even though, as I explained at the time that his sentence ended, the Biden administration must be aware that "reneging on release dates stipulated in plea deals … undermine[s] future efforts to persuade prisoners held at Guantánamo to cooperate."

The habeas petition

Fed up with the administration’s inaction, Khan’s attorneys submitted a habeas corpus petition on his behalf to the District Court in Washington, D.C. on June 7, pointing out that, despite "his unequivocal acceptance of responsibility and unwavering cooperation" — in which he provided "substantial assistance to [the] U.S. authorities, regarding his own conduct and that of other terrorism suspects, including members of Al Qaeda in Pakistan, Southeast Asia, and the United States," and which he undertook "at substantial, continuing risk to himself and his family" — "he continues to be imprisoned at Guantánamo, beyond the expiration of his sentence, and without foreseeable end."

As Khan’s attorneys also explain, "Petitioner’s conditions of confinement at Guantánamo also have not improved since his sentence ended; in certain respects, they have become more punitive. For example, since completing his sentence, Petitioner’s access to his counsel has been significantly restricted and effectively denied by Respondents."

On the first point, Khan’s attorneys provide a roll call of ways in which his ongoing imprisonment violates laws and treaties, including as a violation of the Military Commissions Act, the Authorization for Use of Military Force (the post-9/11 justification for imprisonment at Guantánamo), the law of war, the Geneva Conventions, the Eighth Amendment to the U.S. Constitution, and the Due Process Clause of the Fifth Amendment.

Regarding his conditions of confinement, the attorneys explain that they "have not improved since his sentence ended," because the authorities "have not taken sufficient steps to prepare [Khan] for transfer and resettlement." Instead, he "remains imprisoned as he was for more than a decade while he served his sentence. He is held by himself, away from other detainees, and without direct access to his family or the outside world."

Providing examples, the attorneys explain that the authorities "continue to deny him direct telephone calls with his family which is indispensable in terms of helping him to prepare for life after Guantánamo," and that they "also continue to deny him a laptop or other means to study and prepare himself for transfer and resettlement." They add that, "From [Khan’s] perspective — from what he experiences day-to-day at Guantánamo — his life remains in nearly all respects the same as it was while he was serving his sentence," and that it "certainly does not appear to him that Respondents intend to release him or otherwise contemplate his transfer and resettlement in the foreseeable future."

Explaining how his "conditions of confinement at Guantánamo have become more punitive in certain respects since he completed his sentence," the attorneys describe how defense secretary Lloyd Austin and Brig. Gen. Lance Okamura, Guantánamo’s Commander, "have limited Petitioner’s ability to meet with his counsel at Guantánamo, and, in fact, have cut off entirely Petitioner’s ability to speak with his counsel via secure videoconferencing — a method of communication that was routine prior to Petitioner’s completion of his sentence," and that they "appear to have done so on the purported basis that Petitioner no longer has an 'active case' before a military commission."

I understand that Khan’s release is complicated by the fact that, as CCR explained in a press release, the U.S. government "has an obligation to resettle him somewhere other than Pakistan to protect him from persecution based on his cooperation with U.S. authorities," but as I explained in my article two months ago, the government has "had ten years to prepare for this day, and have clearly done nothing about it."

"Discretion and grace"

When his attorneys explained, in their submission, that Khan’s "prompt transfer from Guantánamo upon the completion of his sentence is required by law," they also contrasted his situation with that of the other 20 men approved for release, via high-level government review processes, which are not legally binding, and require the "discretion and grace" of the authorities.

"Discretion and grace": I’ve been struck by those words, which delicately capture the plight of everyone at Guantánamo who has not, unlike Majid Khan, been charged or convicted of a crime, and whose approval for release is, shamefully, not accompanied by any legal mechanism that requires the U.S. government to release them, as another Guantánamo attorney, Shelby Sullivan-Bennis, explained at an online event that we both took part in back in January, when she stated that it was "appropriate to regard the men held at Guantánamo as political prisoners, because … legally there is no mechanism whereby a court, in habeas corpus cases, or the Periodic Review Boards, an administrative, parole-type process, can actually secure the release of men who have 'won their freedom.'"

While we await a response to Majid Khan’s habeas petition, I thought it would be useful to briefly run though the cases of these 20 men, and to highlight how long they have been held as "political prisoners."

The 20 other men still held who have also been approved for release

1. ISN 038 Ridah Al Yazidi (Tunisia) Approved for release by the Guantánamo Review Task Force in January 2010, and reportedly still held because he has refused to engage with the authorities regarding his transfer.

2. ISN 309 Muieen Abd Al Sattar (a Rohingya Muslim from Myanmar, mistakenly identified as being from the UAE) Also approved for release by the Guantánamo Review Task Force in January 2010, and reportedly still held because he has refused to engage with the authorities regarding his transfer.

3. ISN 893 Tawfiq Al Bihani (Saudi Arabia) Also approved for release by the Guantánamo Review Task Force in January 2010, his attorney George Clarke has explained that "he was supposed to be settled in Saudi Arabia with nine other men in April [2017], but 'he was pulled at the last minute.'" Clarke added, "No one will tell me what the security issue is."

4. ISN 841 Said Salih Said Nashir (Hani Saleh Rashid Abdullah) (Yemen) Approved for release by a Periodic Review Board under Donald Trump in October 2020, a third country must be found that will offer him a home, because repatriations to Yemen are banned in the annual National Defense Authorization Act (NDAA).

5. ISN 027 Uthman Abdul Rahim Mohammed Uthman (Yemen) Approved for release by a PRB under President Biden in May 2021, a third country must be found that will offer him a home, because repatriations to Yemen are banned in the annual National Defense Authorization Act (NDAA).

6. ISN 1094 Saifullah Paracha (Pakistan) Approved for release by a PRB under President Biden in May 2021, there is no obvious obstacle to his repatriation.

7. ISN 1460 Abdul Rahim Ghulam Rabbani (Pakistan) Approved for release by a PRB under President Biden in May 2021, there is no obvious obstacle to his repatriation.

8. ISN 1457 Abdu Ali Sharqawi (Sharqawi Al Hajj) (Yemen) Approved for release by a PRB in June 2021, a third country must be found that will offer him a home, because repatriations to Yemen are banned in the annual National Defense Authorization Act (NDAA).

9. ISN 1463 Abdulsalam Al Hela (Yemen) Approved for release by a PRB in June 2021, a third country must be found that will offer him a home, because repatriations to Yemen are banned in the annual National Defense Authorization Act (NDAA).

10. ISN 1461 Mohammed Ghulam Rabbani (Ahmed Rabbani) (Pakistan) Approved for release by a PRB under President Biden in October 2021, there is no obvious obstacle to his repatriation.

11. ISN 1453 Sanad Al Kazimi (Yemen) Approved for release by a PRB in October 2021, a third country must be found that will offer him a home, because repatriations to Yemen are banned in the annual National Defense Authorization Act (NDAA).

12. ISN 3148 Haroon Al Afghani (Asadullah Haroon Gul) (Afghanistan) Approved for release by a PRB in October 2021, when he also had his habeas corpus petition granted by a court (the first prisoner to do so in over ten years). Relations between the U.S. and the Taliban following the U.S. withdrawal complicate his repatriation, although his family live in a refugee camp in Pakistan, where there does not appear to be any obvious obstacle to his release.

13. ISN 569 Suhayl Al Sharabi (Yemen) Approved for release by a PRB in November 2021, a third country must be found that will offer him a home, because repatriations to Yemen are banned in the annual National Defense Authorization Act (NDAA).

14. ISN 10023 Guled Hassan Duran (Gouled Hassan Dourad) (Somalia) Approved for release by a PRB in November 2021, a third country must be found that will offer him a home, because repatriations to Somalia are banned in the annual National Defense Authorization Act (NDAA).

15. ISN 028 Moath Al Alwi (Yemen) Approved for release by a PRB in December 2021, a third country must be found that will offer him a home, because repatriations to Yemen are banned in the annual National Defense Authorization Act (NDAA).

16. ISN 1017 Omar Al Rammah (Zakaria al-Baidany) (Yemen) Approved for release by a PRB in December 2021, a third country must be found that will offer him a home, because repatriations to Yemen are banned in the annual National Defense Authorization Act (NDAA).

17. ISN 10025 Mohammed Abdul Malik (Mohammed Abdul Malik Bajabu) (Kenya) Approved for release by a PRB in December 2021, there is no obvious obstacle to his repatriation.

18. ISN 682 Ghassan Al Sharbi (Abdullah Al Sharbi) (Saudi Arabia) Approved for release by a PRB in February 2022, there is no obvious obstacle to his repatriation.

19. ISN 685 Abdelrazak Ali (Saeed Bakhouche, Bakhouch) (Algeria) Approved for release by a PRB in April 2022, there is no obvious obstacle to his repatriation.

20. ISN 1456 Hassan Bin Attash (Saudi Arabia) Approved for release by a PRB in April 2022, there is no obvious obstacle to his repatriation.