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Originally published March 28, 2005 at 12:00 AM | Page modified March 28, 2005 at 12:30 AM

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Military tribunal ignored evidence on detainee

A military tribunal determined last fall that Murat Kurnaz, a German national seized in Pakistan in 2001, was a member...

The Washington Post

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

The three 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.

However, that evidence, recently declassified, shows that U.S. military intelligence and German law-enforcement authorities had largely concluded there was no information that linked Kurnaz to al-Qaida or 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.

"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 Guantánamo really is. He can't be useful to them. He has no intelligence for them. Why in the world is he still there?"

Kurnaz, 23, told the tribunal he was traveling to Pakistan with an Islamic missionary group. He said he is a religious man who pays no attention to politics and detests terrorists for violating the Koran's teachings to practice nonviolence, according to transcripts of his appearance before the tribunal.

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. "They make the best decision based on what they saw before them at the time."

Court-ordered tribunals

About 540 foreign nationals are detained at Guantánamo Bay as suspected al-Qaida 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 panel then decides whether a captive should be designated an enemy combatant and be detained further. A second panel later reviews how dangerous the detainee would be if released.

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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 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.

"Evidence" lacking

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-Qaida 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 (CITF), the investigative arm of the U.S. Southern Command, which oversees the Guantánamo Bay facility, repeatedly suggested that it may have been a mistake to take Kurnaz off a bus of Islamic missionaries traveling in 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-Qaida."

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 by an unidentified military official, concludes that the German Muslim of Turkish descent is an al-Qaida member. It says he was working with German terrorists and trying in the fall of 2001 to reach Afghanistan to help fight U.S. forces.

In recently declassified portions of her January ruling, Green wrote that the panel's decision appeared to be based on a single document, labeled "R-19." She said she found that to be one of the most troubling military abuses of due process among the many cases of Guantánamo detainees that she has reviewed.

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.

Sign of "troubling" process

"It suggests the procedure is a sham," Eugene Fidell, a Washington-based expert in military law, said of the Green ruling. "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 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," he said.

Azmy, Kurnaz's attorney, said he is deeply disturbed at what he calls the government's "whitewash."

"No American could possibly understand why we are holding someone we know we don't need to hold," said Azmy, a professor at Seton Hall University School of Law in New Jersey. "Having concluded long ago that he has no links to terrorists, what is keeping him there?"

One of the tribunal's assertions is that Kurnaz was traveling to Pakistan with Selcuk Bilgin, who Kurnaz said was a friend from his gym and who the military said is suspected of being "the Elalananutus suicide bomber."

Military records aren't clear on what the incident was, but in November 2003, an Istanbul synagogue was bombed and suspected bomber Gokhan Elaltuntas died.

Bilgin, who is alive and living in Germany, did not go on the trip with Kurnaz, according to German court records that are part of the tribunal process.

He was detained at the airport in Germany for failing to pay a fine on his dog.

Uwe Picard, the German prosecutor who investigated the case against Bilgin, said last week that there was no evidence of Bilgin being a bomber and that authorities there had to drop the case.

"We don't have proof the two wanted to go to Afghanistan or had any terrorist plans," he said, adding that German state security agencies told him they had never heard of an Elalananutus bombing or a group by that name.

"And as I see it," he said, "the Americans really have no reason to hold Mr. Kurnaz. That wouldn't be allowed under German law."

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