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 a panel appeared to disregard 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. “They make the best decision based on what they saw before them at the time.”
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 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. © 2005 The Washington Post Company