The American Gulag

Remember the Martin Niemoller quote.


Panel Ignored Evidence on Detainee

By Carol D. Leonnig
The Washington Post
Page A01 March 27, 2005

A military tribunal determined last fall that Murat Kurnaz, a German national seized in Pakistan in 2001, was a member of al Qaeda and an enemy combatant whom the government could detain indefinitely at the U.S. military prison at Guantanamo Bay, Cuba.

The three military officers on the panel, whose identities are kept secret, said in papers filed in federal court that they reached their conclusion based largely on classified evidence that was too sensitive to release to the public.

In fact, that evidence, recently declassified and obtained by The Washington Post, shows that U.S. military intelligence and German law enforcement authorities had largely concluded there was no information that linked Kurnaz to al Qaeda, any other terrorist organization or terrorist activities.

In recently declassified portions of a January ruling, a federal judge criticized the military panel for ignoring the exculpatory information that dominates Kurnaz’s file and for relying instead on a brief, unsupported memo filed shortly before Kurnaz’s hearing by an unidentified government official.

Kurnaz has been detained at Guantanamo Bay since at least January 2002.

“The U.S. government has known for almost two years that he’s innocent of these charges,” said Baher Azmy, Kurnaz’s attorney. “That begs a lot of questions about what the purpose of Guantanamo really is. He can’t be useful to them. He has no intelligence for them. Why in the world is he still there?”

The Kurnaz case appears to be the first in which classified material considered by a “combatant status review tribunal” has become public. While attorneys for Guantanamo Bay detainees have frequently complained that their clients are being held based on thin evidence, Kurnaz’s is the first known case in which it has been revealed that a panel disregarded the recommendations of U.S. intelligence agencies and information supplied by allies.

A Pentagon spokesman, Lt. Cmdr. Daryl Borgquist, said the government will not answer questions about the decisions made by the tribunals. “We don’t comment on the decisions of the tribunals,” he said.

About 540 foreign nationals are detained at Guantanamo Bay as suspected al Qaeda or Taliban fighters, or associates of terrorist groups. In response to a landmark Supreme Court ruling in June that allowed the detainees to challenge their imprisonment, the military began holding new review tribunals last fall.

During tribunal hearings, a panel of military officers considers public and secret evidence, and the detainee is offered an opportunity to state his case and answer questions. The military panel then decides whether a captive should be designated an enemy combatant and be further detained. A second panel later reviews how dangerous the detainee would be if released.

According to the Defense Department, 558 tribunal reviews have been held. In the 539 decisions made so far, 506 detainees have been found to be enemy combatants and have been kept in prison. Thirty-three have been found not to be enemy combatants. Of those, four have been released.

In January, U.S. District Judge Joyce Hens Green ruled that the tribunals are illegal, unfairly stacked against detainees and in violation of the Constitution. The Bush administration has appealed her decision.

U.S. District Judge Richard J. Leon, who, like Green, sits in the federal district for the District of Columbia, has ruled that the tribunals provide an appropriate legal forum for the detainees. Detainees are appealing his ruling.

In Kurnaz’s case, a tribunal panel made up of an Air Force colonel and lieutenant colonel and a Navy lieutenant commander concluded that he was an al Qaeda member, based on “some evidence” that was classified.

But in nearly 100 pages of documents, now declassified by the government, U.S. military investigators and German law enforcement authorities said they had no such evidence. The Command Intelligence Task Force, the investigative arm of the U.S. Southern Command, which oversees the Guantanamo Bay facility, repeatedly suggested that it may have been a mistake to take Kurnaz off a bus of Islamic missionaries traveling through Pakistan in October 2001.

“CITF has no definite link/evidence of detainee having an association with Al Qaida or making any specific threat against the U.S.,” one document says. “CITF is not aware of evidence that Kurnaz was or is a member of Al Quaeda.”

Another newly declassified document reports that the “Germans confirmed this detainee has no connection to an al-Qaida cell in Germany.”

Only one document in Kurnaz’s file, a short memo written by an unidentified military official, concludes that the German Muslim of Turkish descent is an al Qaeda member. In recently declassified portions of her January ruling, Green wrote that the panel’s decision appeared to be based on this single anonymous memo, labeled “R-19.”

The R-19 memo, she wrote, “fails to provide significant details to support its conclusory allegations, does not reveal the sources for its information and is contradicted by other evidence in the record.” Green reviewed all the classified and unclassified evidence in the case.

Eugene R. Fidell, a Washington-based expert in military law, said Green appropriately chided the tribunal for not considering the overwhelming conclusion of the government that Kurnaz was improperly detained and should be released.

“It suggests the procedure is a sham,” Fidell said. “If a case like that can get through, what it means is that the merest scintilla of evidence against someone would carry the day for the government, even if there’s a mountain of evidence on the other side.”

Douglas W. Kmiec, a law professor at Pepperdine University who supports the tribunal process, said the lack of evidence against Kurnaz is “very troubling” and should prompt a military review of this particular tribunal. “Failing to do that would undercut the argument that the military, in times of war, is capable of policing itself.”

Azmy, Kurnaz’s attorney and a professor at Seton Hall University School of Law in New Jersey, asked, “Having concluded long ago that he has no links to terrorists, what is keeping him there (at Guantanamo Bay)?” Azmy said the Pentagon seems unable to admit it was wrong to detain someone so long. “Or perhaps it’s just a bureaucratic trap that Murat cannot get out of,” Azmy said.

Justice Department lawyers told Azmy last week that the information that exonorated Kurnaz may have been improperly declassified and should be treated in the foreseeable future as classified.

Uwe Picard, the German prosecutor who investigated the case said, “As far as I’m concerned, this group (that Kurnaz was accused of belonging to) is just a series of letters that means absolutely nothing,” he said. “And as I see it, the Americans really have no reason to hold Mr. Kurnaz. That wouldn’t be allowed under German law.”

Washington Post staff writer Dita Smith and researcher Julie Tate contributed to this report.

“I still think today as yesterday that the color line is a great problem of this century. But today I see more clearly than yesterday that back of the problem of race and color, lies a greater problem which both obscures and implements it: and that is the fact that so many civilized persons are willing to live in comfort even if the price of this is poverty, ignorance, and disease of the majority of their fellowmen; that to maintain this privilege, men have waged war until today war tends to become universal and continuous, and the excuse for this war continues largely to be color and race.”
W.E.B. Du Bois

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