Torture is indisputably at the extreme end of the range of conduct that could constitute unlawful pretrial punishment. Article 13 of the UCMJ permits military judges to grant administrative credit for unlawful pretrial punishment. However, an equivalent provision to Article 13 is not present in the Military Commissions Act (MCA). Do trial judges have the inherent authority to grant such credit anyway? In a deeply researched 43-page ruling in United States v. Majid Khan, Judge Watkins answers "yes":
The Commission concludes the Defense has met their burden in this Commission to show, by a preponderance of the evidence, that this Military Judge has the inherent authority to grant a remedy in the form of administrative sentencing credit for abusive treatment amounting to illegal pretrial punishment, especially when no other remedy is available. This Military Judge has an obligation to ensure this accused receives a fundamentally fair trial. The absence of Article 13 from the MCAs is not dispositive, as Article 13 codified the longstanding military practice of judicial remedies for violations of the presumption of innocence, a foundational principle of a fair trial. Despite the lack of an Article 13-like provision in the 2009 MCA, this Military Judge has broad discretion to fashion a remedy for illegal pretrial punishment a violation of the universal right to be free of torture—by virtue of the sua sponte duty to ensure the fundamental fairness, as well as the appearance of fairness, of the tribunal.How to present this evidence? Courts-martial traditionally consider Article 13 issues in pretrial motions or stipulations. Judge Watkins ruled that he would consider such evidence after conviction in the sentencing phase.
The Commission DEFERS ruling on the mixed questions of law and fact underlying the merits of the subject motion and will concurrently consider the Defense’s case in extenuation and mitigation at sentencing for the purpose of ruling on the merits of the subject motion. If the Defense desires to present certain evidence on this motion outside of the presence of the members, it will be afforded an opportunity to do so during deliberations, excusal of the members, or at some other opportune time during trial and before adjournment.In one sense, this is an efficient approach that avoids duplicative efforts since the defense sentencing case for Mr. Khan will also certainly focus on torture. However, this approach forecloses the defense from attempting to prove before trial that the torture was so egregious that no fair trial can be had. On whole though, this is a win for the defense because the real question for sentencing has always been the extent to which Mr. Khan can investigate and present torture evidence. Judge Watkins' ruling gives him a firm mandate.