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Guantánamo Detainee Agrees to Drop Call for C.I.A. Testimony

WASHINGTON — A detainee at Guantánamo Bay has agreed to a deal intended to lead to his release in the next few years in return for giving up the right to question the C.I.A. in court about its torture program, United States government officials said.

The deal, negotiated by the Pentagon official who oversees the military commissions that serve as a court for some detainees, was reached in recent weeks, and comes as a number of those who have been charged at Guantánamo are seeking to cite their abuse at the hands of the C.I.A. as part of their defense.

Under the deal, the prisoner, Majid Khan, 41, who has pleaded guilty to serving as a courier for Al Qaeda, would complete his prison sentence as early as next year and no later than 2025 and then could be released to another country, assuming one will take him, according to people who have seen the terms or are familiar with its details.

In exchange, Mr. Khan will not use his sentencing proceedings to invoke a landmark war court decision that allowed him to call witnesses from the C.I.A.’s secret prison network to testify about his torture.

2014 Senate investigation. He was also sleep deprived, kept naked and hung by his wrists, and hooded, to the point of hallucinations.

Mr. Khan was transferred to Guantánamo Bay in 2006 and saw a lawyer for the first time in his fourth year of detention. In 2012, he pleaded guilty to terrorism-related charges stemming from his work for Al Qaeda after the Sept. 11 attacks, and agreed to postpone his sentencing while he cooperated with government prosecutors.

On April 16, he and his lawyers reached agreement with the overseer of military commissions for a sentence that would end sometime between early next year and March 1, 2025.

The agreement itself is under seal, at least until a judge questions Mr. Khan on whether he voluntarily entered into it. But several people, speaking on the condition of anonymity to describe details of the deal, said that it has a sentencing range of 11 to 14 years, applied starting with his guilty plea in 2012.

prosecutors failed to disclose certain evidence. Colonel Watkins retires from the Army on Aug. 1 and was replaced on the case Wednesday by an Air Force judge, Col. Mark W. Milam.

The agreement is the first involving a Guantánamo detainee that the Biden administration has reached since taking office. It was made by Jeffrey D. Wood, a National Guard colonel who was appointed by the Trump administration to the civilian role of convening authority for military commissions.

had actually seen Mr. Khan in C.I.A. detention.

The issue had been simmering but had not come to a head because travel restrictions during the coronavirus pandemic brought most military commission hearings to a standstill for the last year.

The question of whether Mr. Khan could receive a reduction in his sentence because of his torture was also a potential model for the defense in the capital conspiracy case against Khalid Shaikh Mohammed and four other men accused of plotting the Sept. 11 attacks. Defense lawyers for all five defendants say there is evidence that each was systematically tortured in the black sites, and they want a judge or jury to hear graphic details about it to avert a death sentence when the long-delayed case eventually proceeds.

Two contract psychologists who devised the C.I.A.’s interrogation program, James Mitchell and John Bruce Jessen, have been publicly identified. But the identities of the people who interrogated Mr. Khan, and in which countries where they did it, are still classified at the court, which operates under rules that the government says are intended to balance state secrets and fair trial rights.

Prosecutors argued that anonymous, in-person testimony about Mr. Khan’s treatment, whether in a classified session or in public, risked exposing covert U.S. government employees, and said it was not possible to take them to Guantánamo Bay. That left the possibility of the judge ordering their appearances, prosecutors refusing to bring them and as a remedy, the judge reducing Mr. Khan’s sentence.

filing on April 22, Mr. Khan’s lawyers will also ask the judge after sentencing to void the June 2020 ruling that found credit for pretrial punishment is an available remedy at a military commission — undercutting its potential use in the Sept. 11 case.

Mr. Khan has been kept apart from the other former C.I.A. prisoners at Guantánamo since he pleaded guilty. At that time, he became a government informant, and has been debriefed on demand although prosecutors have yet to hold a trial where his testimony would be needed.

In pleading guilty he admitted to delivering $50,000 from Mr. Mohammed to militants in Indonesia that was used to finance the bombing of a Marriott hotel in Jakarta, Indonesia, in 2003, killing 11 people. Three men at Guantánamo have been charged in that plot, but have yet to be arraigned and have no trial date.

During the Trump administration, Mr. Khan was also listed as a government witness in a planned federal prosecution of another Pakistani man, Uzair Paracha. Mr. Paracha was convicted in 2005 in New York of federal terrorism-related offenses, but the conviction was overturned. Rather than retry him last year, federal prosecutors dropped the case in exchange for Mr. Paracha voluntarily giving up his U.S. residency and returning to Pakistan, after 17 years of incarceration.

For Mr. Khan, the path out of Guantánamo may be more complex. Successive U.S. administrations have argued that a convicted war criminal who completes his sentence may still be held at Guantánamo in the quasi-prisoner of war status of a detainee, as long as the United States considers itself to be at war with Al Qaeda and other terrorist groups.

Also, it is unclear where Mr. Khan would go. He was born in Saudi Arabia, lived as a child in Pakistan but went to high school in suburban Baltimore and had asylum in the United States before he returned to Pakistan after the Sept. 11 attacks. By law, he cannot be sent to the United States.

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US Defends Detention of Afghan at Guantánamo Despite Pullout

WASHINGTON — A Justice Department lawyer said in federal court on Monday that, even as the Pentagon is withdrawing all troops from Afghanistan, the United States has the authority to continue to detain a former Afghan militia member at Guantánamo Bay, Cuba, because of his past association with members of Al Qaeda.

“We remain at war with Al Qaeda,” the lawyer, Stephen M. Elliott, said at the start of hearing in U.S. District Court in Washington in a case brought by Asadullah Haroon Gul, an Afghan citizen who has been held by the U.S. military since 2007.

The hearing was the first in a Guantánamo habeas corpus case since the Biden administration took office, and its defense of his detention appeared identical to the positions taken by previous administrations, despite President Biden’s order to withdraw all U.S. combat troops from Afghanistan and his stated ambition to close the Guantánamo detention operation.

Mr. Elliott said Al Qaeda is “morphing and evolving” and that the U.S. “war on terrorism” continues.

when the militia made peace with the U.S.-allied Afghan government of President Ashraf Ghani. The foreign ministry of Afghanistan has filed a brief in the case seeking his return.

Most of the hearing, expected to last five to eight days, is closed to both the public and the detainee because the substance is considered classified. Mr. Haroon was permitted to listen in on the opening arguments via a phone line from Guantánamo that broke at least once, requiring a lengthy recess.

Before holding a session in open court on Monday, Judge Amit P. Mehta left his bench in Washington, D.C., to preside in a closed portion of the hearing at a secure facility in Virginia, with Mr. Haroon addressing the judge by video.

“I am not a terrorist,” he said in a statement released by his lawyers. “I am an Afghan.”

In the closed portion of the hearings, government lawyers intend to use U.S. intelligence accounts of Mr. Haroon’s interrogations to defend his continuing detention. Mr. Elliott said U.S. intelligence reports linked him to three Qaeda leaders now held at Guantánamo, starting with his attendance at a young age, apparently in the early 1990s, at seminars sponsored by Khalid Shaikh Mohammed, who is accused of being the mastermind of the attacks of Sept. 11, 2001.

Judge Mehta, an appointee of President Barack Obama. Under the current timetable, the court could reopen the hearing for unclassified closing arguments on May 28.

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Supreme Court to Rule on Whether C.I.A. Black Sites Are State Secrets

The defense lawyers want that information to seek the testimony of eyewitnesses to bolster their argument that the United States has lost the moral authority to execute prisoners who have been tortured.

Mr. Zubaydah, a Palestinian man whose real name is Zayn al-Abidin Muhammad Husayn, was captured in Pakistan in March 2002 and was initially thought be a high-level member of Al Qaeda. A 2014 report from the Senate Select Committee on Intelligence said “the C.I.A. later concluded that Abu Zubaydah was not a member of Al Qaeda.”

The Bush administration transferred Mr. Zubaydah, who is 50, to the Pentagon’s wartime prison at Guantánamo Bay, Cuba, in September 2006, after more than four years in C.I.A. custody. He is held as a “law of war detainee,” whom interagency review boards have deemed too dangerous to release. He was granted access to a lawyer for the first time in his sixth year of U.S. confinement, but unlike the defendants in the Sept. 11 case, he has never been charged with a crime.

It is undisputed that Mr. Zubaydah was subjected to brutal interrogations at one or more black sites.

“On 83 different occasions in a single month of 2002, he was strapped to an inclined board with his head lower than his feet while C.I.A. contractors poured water up his nose and down his throat, bringing him within sight of death,” Mr. Zubaydah’s lawyers told the justices. “He was handcuffed and repeatedly slammed into walls, and suspended naked from hooks in the ceiling for hours at a time.”

“He was forced to remain awake for 11 consecutive days, and doused again and again with cold water when he collapsed into sleep,” they wrote. “He was forced into a tall, narrow box the size of a coffin, and crammed into another box that would nearly fit under a chair, where he was left for hours. He was subjected to a particularly grotesque humiliation described by the C.I.A. as ‘rectal rehydration.’”

Mr. Zubaydah has sketched graphic self-portraits of the techniques while at Guantánamo.

Dr. Mitchell testified last year in a court hearing at Guantánamo that in August 2002, he and Dr. Jessen concluded that Mr. Zubaydah was cooperating with his interrogators and that they no longer needed to waterboard him to force his cooperation. He said that C.I.A. headquarters insisted that they continue.

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Biden’s Plan to End Afghanistan War Gives Some Detainees Hope for Release

That, however, left unanswered the question of what it would mean if Afghanistan was no longer an active zone of armed conflict, even as fighting raged elsewhere thousands of miles away.

Mr. Haroon’s case may be stronger since he is an Afghan citizen, as opposed to other detainees who the government says traveled to Afghanistan to join Osama bin Laden’s Islamist movement. There is only one other Afghan still at Guantánamo, Muhammad Rahim, 55, but he presents a more complex case.

He was initially held in C.I.A. custody as a “high-value detainee,” and his 2016 intelligence profile describes him as a courier and facilitator for Al Qaeda — including for Bin Laden — who had advance knowledge of the Sept. 11 attacks. He has never been charged with war crimes.

If the evidence is strong that Mr. Rahim worked directly for Al Qaeda, the government can argue that wartime authority continues to exist to hold him to prevent him from returning to the fight, even if the warfare involving the United States in Afghanistan is over. But his lawyer, Cathi Shusky, a federal defender in Ohio, argued that the evidence was weak.

“There’s a reasonable explanation he wasn’t part of either” Al Qaeda or the Taliban, said Ms. Shusky, who said many of the details of his case were classified, preventing her from elaborating. “There is some twisting of the narrative. I think when the facts are fully revealed, it will show his continued detention is not lawful.”

A U.S. military representative for Mr. Rahim, told an administrative review board in March 2016 that Mr. Rahim regretted his past and wanted to return to his two wives and seven children in Afghanistan. His motivations were not ideological, the representative said, rather “he only did what he did for money, so he could feed his family.”

His federal court petition for release has been on hold for years while he sought release through the board, which has repeatedly declared his detention a national security necessity. But Ms. Shusky said she and another lawyer were planning to revive his habeas corpus case in light of the decision to pull out of Afghanistan.

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