Torture Can Be Considered in Sentencing Guantánamo Prisoners, Judge Rules

Colonel Watkins disagreed. “The defense has met their burden in this commission to show, by a preponderance of the evidence,” he wrote, “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.”

Lawyers have described the Guantánamo military commissions as the only U.S. venue available to former C.I.A. prisoners, provided they are charged with war crimes, to seek a remedy for their torture in the black sites. Those sites, hidden in a number of countries, were set up by the George W. Bush administration after the Sept. 11 attacks to interrogate high-value prisoners that U.S. ally security forces arrested and handed over to the C.I.A.

“A military commission has taken a meaningful step toward a C.I.A. torture victim receiving some type of modest reparation or remedy, a step that no other U.S. government institution has taken,” said Scott Roehm, the Washington policy director for the Center for Victims of Torture, an advocacy group.

Mr. Roehm called it “the most basic acknowledgment of the United States’ obligations, and Mr. Khan’s rights, under the Convention Against Torture. The bigger test in this case will be whether Judge Watkins actually grants the pretrial punishment credit Mr. Khan deserves.”

The Pentagon’s chief war crimes prosecutor, Brig. Gen. Mark S. Martins of the Army, did not respond to a question of whether he would or could appeal the decision.

The chief defense counsel, Brig. Gen. John G. Baker of the Marines, cast it as a watershed decision. “It is about time that we see a means to hold the government accountable for the reprehensible torture of Mr. Khan and other commissions defendants in a court a law.” he said. “While it may seem obvious that being tortured by government actors should have some effect on a defendant’s ultimate sentence, the prosecution has disagreed every step of the way.”

Prosecutors argued that, because he pleaded guilty, Mr. Khan had no right to seek the credit. Colonel Watkins disagreed: “He did not bargain away or waive any credit for the conditions under which he has been detained at any point in time since his capture in 2003.”