Not So Fast on Khan Plea Bargain

By Benjamin Wittes, Raffaela Wakeman, Lawfare Staff
Tuesday, February 28, 2012, 4:12 PM

There's been a lot of buzz in the press on the plea bargain reached between Majid Khan and the prosecution in his Military Commission case--and a lot of it has focused on the mere four years before Khan might be eligible for release.

Peter Finn started this meme last week:

Khan has agreed, if requested, to testify at military commission trials in the next four years, and he would then be eligible to be transferred to Pakistan at some point after that, the officials said. Khan has a wife and daughter in Pakistan.

The officials would not specify the amount of time Khan would serve if he fulfilled his obligations under the agreement.

This caught on in other press coverage, including in Carol Rosenberg's story today:

Majid Khan has agreed to be a government witness at future military commissions, sources say, in exchange for Wednesday’s guilty plea and the possibility of return to his native Pakistan in four years.

The four years has drawn outrage from people like Marc Thiessen:

Giving this killer a reduced sentence is outrageous. Khan is no run-of-the-mill terrorist. He was directly subordinate to KSM and was selected by the 9/11 mastermind to conduct terrorist operations inside the United States.


Under the reported deal, Khan has agreed to testify against his fellow terrorists during the next four years at Guantanamo, after which he would then be eligible to be transferred to Pakistan.

But as this Joint Motion by the prosecution and defense in the run-up to tomorrow’s arraignment shows, the press appears to have misleadingly reported a key fact about the plea agreement--which is still not public in all of its details. As Josh Gerstein reports today, the deal is actually not for Khan to be released or transferred in as little four years, it is for sentencing itself to be delayed for four years. The actual sentencing range itself remains a bit opaque. The parties have agreed to ask the military judge to instruct the commission to impose a sentence of between 25 and 40 years, but the motion also makes clear that there is a separate understanding between the parties and the Convening Authority that will cap the time served irrespective of the sentence selected by the jury. Paragraph 4b on p. 2 reads: “As a negotiated term of the [pretrial agreement], the Convening Authority agreed that he ‘will not approve a sentence of confinement in excess of twenty-five (25) years.’”

We will have more as the actual likely sentencing range comes into focus.