Panel Ignored Evidence on
By Carol D. Leonnig
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
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
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
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."
About 540 foreign nationals are detained at
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 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
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,
"CITF has no definite link/evidence of detainee having an association
with Al Qaida or making any specific threat against the
Another newly declassified document reports that the "Germans confirmed
this detainee has no connection to an al-Qaida cell in
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. It says he was working with German terrorists and trying in the
fall of 2001 to reach
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
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
"Failing to do that would undercut the argument that the military, in times of war, is capable of policing itself."
Azmy, Kurnaz's attorney, said reading the classified records at first "exhilarated" him, because they corroborated his client's account. Now that Kurnaz remains detained and some of the information about his case can come to light, Azmy 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
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 may have been improperly declassified and should be treated in the foreseeable future as classified.
Kurnaz, 23, told the tribunal he was traveling to
One of the tribunal's assertions is that Kurnaz was traveling to
Military records do not make it clear what the incident was, but in November
Bilgin, who is still alive and living in
Uwe Picard, the German prosecutor who investigated the case against Bilgin, said in an interview last week that there was no evidence of Bilgin being a suicide bomber and that authorities there had to drop the case.
"We don't have proof the two wanted to go to
He said German state security agencies told him they had never heard of an Elalananutus bombing or a group by that name.
"As far as I'm concerned, this group 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."
Staff writer Dita Smith and researcher Julie Tate contributed to this report.