Military Commission Judge Penalizes Prosecution's Discovery Practices in United States v. Khan

On Monday, COL Douglas Watkins, the military judge presiding in the case of United States v. Khan ruled that the prosecution had systemically failed to meet "the spirit or letter of Article 46, 10 U.S.C. §949j, R.M.C. 701, or accepted standard practice in the military, it has created needless litigation and potentially delayed the resolution of this Commission." As a sanction, Judge Watkins gave the defendant, Majid Khan, a year of credit against the sentence the military commission will ultimately impose.

Khan pled guilty in 2012 as part of a plea agreement in which he agreed to testify at the September 11th trial. As the September 11th case has dragged on over the intervening years, Khan's sentencing has been routinely postponed.

The present controversy arose after the Secretary of Defense designated RADM (Ret.) Christian Reismeier as the military commission's convening authority in 2019. Reismeier had a long professional history of supporting the Office of the Chief Prosecutor and recused himself from two military commission cases on which he had played a public role when he took the job. Khan sought discovery into whether Reismeier's past conduct should also disqualify him from continuing to exercise convening authority in Khan's case and COL Watkins ordered the prosecution to produce that discovery back in September 2019.

In a ruling issued Monday, Watkins chastised the prosecution in the starkest terms possible. "The Government's sovereign obligation," he wrote, "in maintaining this prosecution is to ensure not a particular outcome, but rather that justice shall be done. Gamesmanship, second-guessing, and replacing the statutory language with the Government’s unique interpretation of the discovery rules is unacceptable and will not be tolerated by this Commission." After reciting a series of particular discovery abuses caused by what Watkins called the prosecution's "faulty and unreasonably restrictive" view of its Brady obligations, he found "the Government’s discovery practice worthy of sanction."

The most obvious sanction would have been to disqualify RADM Reismeier, since it was discovery in support of a motion to disqualify that the prosecution had improperly withheld. That remedy, however, was off the table because the Secretary had rescinded Reismeier's convening authority designation back in April. Watkins nevertheless concluded that a sanction was still needed to remedy the prejudice to Khan and to sanction the prosecution's misconduct. So, Watkins granted Khan a year of confinement credit.

Given that eight years have elapsed since Khan's guilty plea, the year of confinement credit is modest in practical terms. But the ruling is likely to have greater significance in the other military commission cases, particularly United States v. Mohammed, et al., and United States v. Al-Nashiri, which are both capital cases.
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The blow up in Khan's case has pulled back the curtain on discovery practices that appear to be widespread within the Office of the Chief Prosecutor. If the prosecution took an "faulty and unreasonably restrictive" view of its discovery obligations with respect to an issue as ancillary as the potential biases of a convening authority, are these same standards being applied to the government's discovery obligations concerning torture, intelligence records, and the myriad other forms of Brady evidence that will be at the heart of these other cases?

Michel Paradis

LOAC Editor