Service members who have followed the Guantanamo cases sometimes call us expecting their own court martial to look like what they read about: years of delay, classified evidence fights, a plea followed by a decade of waiting. It will not. The Majid Khan case is a useful way to see why, because almost nothing about how it ran applies to a court martial under the UCMJ.
What Actually Happened, in Order
February 2012. Khan pleaded guilty before a military commission at Guantanamo Bay to charges including murder and attempted murder in violation of the law of war, conspiracy, and providing material support for terrorism. Under the terms of his pretrial agreement, he agreed to cooperate with the government, and sentencing was deferred.
- Army Col. Tara A. Osborn was assigned to preside over the case. At that point the guilty plea was four years old. What remained was sentencing, not a plea.
October 2021. The sentencing hearing was held. Khan gave an account of his treatment in CIA custody, the first such account delivered in open court by a former detainee. A panel of military officers recommended clemency.
- Khan was transferred out of Guantanamo after completing his sentence.
The Casualty Figure
Khan’s conduct was tied to a 2003 hotel bombing in Jakarta, Indonesia. Official records give different casualty counts depending on the source and the counting method: the military commission charging documents refer to eleven persons killed, and other official records give twelve or thirteen. Any figure substantially above that range, including the figure of 81 that appeared in the original version of this post, is not supported by the record.
Where sources differ on a factual detail of this kind, the honest approach is to give the range and identify the sources, not to pick a number.
Why the Commission Process Is Not a Court Martial
The distinction matters because expectations formed from commission reporting run in the direction that hurts: they suggest there is time. A court martial does not offer it. In a case headed toward a general court martial, charges are preferred, an Article 32 preliminary hearing follows unless it is waived, and a trial date is set, frequently while an accused is still working out who will represent them. Cases disposed of at a special or summary court martial do not carry the Article 32 requirement at all. Joseph L. Jordan, Attorney at Law has taken more than 250 cases to verdict, and much of what decides a case happens well before the trial date is reached.
Military commissions and courts martial are separate systems, and conflating them causes real confusion.
Jurisdiction. Courts martial try service members under the UCMJ. Military commissions under the Military Commissions Act try alien unprivileged enemy belligerents for violations of the law of war.
Charges. A court martial charges UCMJ articles. A commission charges law of war offenses, some of which have been contested as to whether they are recognized war crimes at all. The “material support for terrorism” charge against Khan is one example that has been litigated.
Procedure. Commission rules differ from the Rules for Courts-Martial on classification handling, on the treatment of statements obtained in custody, and on appellate review.
Timeline. Khan’s case ran from a 2012 plea to a 2021 sentencing. That interval is not typical of courts martial.
If you are a service member facing charges, the commission process is not your process. Reading about Guantanamo cases will not tell you how your court martial will work.
What Does Apply to Service Members
Each of these has a moment at which it is used or lost. Article 31(b) protects a service member only if it is invoked. Where a case is headed to a general court martial, an Article 32 preliminary hearing produces the government’s first full account of its own case, which is worth having before that account hardens. Mr. Jordan handled military criminal cases from the government side at Fort Hood, Texas, and with the 2nd Infantry Division in South Korea before moving into defense practice.
The parts of the Khan case that do carry over are narrower and more practical:
- Cooperation agreements exist and have consequences. A pretrial agreement can defer sentencing and can obligate a defendant to cooperate over a long period. Those terms need to be understood before they are signed.
- Statements made in custody are litigated. How and when a statement was obtained shapes whether it can be used.
- Delay cuts both ways. Long proceedings degrade evidence and memory for both sides.
Speak With a Military Defense Attorney
A court martial does not run on the timeline the commission cases have made familiar. Charges are preferred, a preliminary hearing is scheduled, and a trial date is set on a schedule that does not wait for an accused to get organized.
Joseph L. Jordan, Attorney at Law is a former Army JAG officer who represents service members at installations worldwide. Call (888) 643-6254 as soon as you learn you are under investigation.