“This is his best shot at going home,” Lt. Col. Jon Jackson, Khan’s military defense counsel, said of the deal, which calls for the 32-year-old Pakistani to serve no more than 19 years if he fully cooperates with the government. Without a deal, Khan faced life in prison.
The debate over the appropriate forum for terrorism suspects is likely to sharpen with President Obama’s decision this week to issue a series of waivers that will make the transfer of any future captives to military custody a rare event. Republicans have blocked the Obama administration from transferring Guantanamo detainees to the United States for any reason, including prosecution.
But the justice system here is already scrambling any calculation that the military trials will produce long sentences, particularly when compared with the terms of incarceration handed down in federal courts.
“There’s a widespread perception that military commissions are tilted strongly against defendants, often based on the assumption that military officers will come down more harshly than federal judges. The record to date tells a very different story,” said Matthew Waxman, a professor at Columbia Law School and a former Pentagon official in the George W. Bush administration. “This plea deal will likely cause discomfort among both hard-line detention hawks and civilian libertarians. The former will see the sentence as too light, and the latter oppose the use of military courts.”
Before Khan’s, six military commissions had been completed over the past decade. Of those, five ended with relatively mild sentences. Two detainees have already gone home, and three more are scheduled to be repatriated in the next few years.
As part of his plea deal, Khan described meeting Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 attacks, several times on the streets of Karachi in 2002 and talking about various plots, including a possible suicide attempt against Pakistan’s then-president, Pervez Musharraf.
Later, in a hotel room in Peshawar, Mohammed told Khan that he wanted him to become a “new model” for sleeper agents in the United States. And for a defendant so closely associated with Mohammed, a 19-year sentence seems surprisingly short to some observers.
“It’s a better deal than you might have expected,” said Karen Greenberg, director for the Center on National Security at Fordham Law School. “The message here is that agreeing to cooperate is worth your while.”