[wvns] Evidence Of Innocence Rejected at Guantanamo
Evidence Of Innocence Rejected at Guantanamo
By Carol D. Leonnig
Washington Post Staff Writer
Wednesday, December 5, 2007; Page A01
http://www.washingtonpost.com/wp-dyn/content/article/2007/12/04/AR2007120402307.html
Just months after U.S. Army troops whisked a German man from Pakistan
to the military prison at Guantanamo Bay, Cuba, in 2002, his American
captors concluded that he was not a terrorist.
"USA considers Murat Kurnaz's innocence to be proven," a German
intelligence officer wrote that year in a memo to his colleagues. "He
is to be released in approximately six to eight weeks."
But the 19-year-old student was not freed. Instead, over the next four
years, two U.S. military tribunals that were responsible for
determining whether Guantanamo Bay detainees were enemy fighters
declared him a dangerous al-Qaeda ally who should remain in prison.
The disparity between the tribunal's judgments and the intelligence
community's consensus view that Kurnaz is innocent is detailed in
newly released military and court documents that track his fate. His
attorneys, who sued the Pentagon to gain access to the documents, say
that they reflect policies that result in mistreatment of the hundreds
of foreigners who have been locked up for years at the controversial
prison.
The Supreme Court intends to weigh the legitimacy of the military
tribunals at a hearing this morning. Lawyers for Kurnaz and other
detainees plan to argue that the panels violate the U.S. Constitution
and international law. They say that the proceedings have not provided
Guantanamo Bay detainees with a fair and impartial hearing.
Lawyers for the Bush administration will argue that the tribunals have
afforded suspected enemies all the rights to which they are entitled.
The administration maintains that detainees need not know all of the
evidence against them. The tribunals were established in 2004 after
the Supreme Court ruled that such panels are needed when holding
prisoners indefinitely, and Congress endorsed them in 2005.
U.S. District Judge Joyce Hens Green, who was privy to the classified
record of the tribunal's decision-making about Kurnaz in 2004,
concluded in January 2005 that his treatment provided powerful
evidence of bias against prisoners, and she deemed the proceedings
illegal under U.S. and international law. But her ruling, which
depicted the allegations against Kurnaz as unsubstantiated and as an
inappropriate basis for keeping him locked up, was mostly classified
at the time.
In newly released passages, however, Green's ruling reveals that the
tribunal members relied heavily on a memo written by a U.S. brigadier
general who noted that Kurnaz had prayed while the U.S. national
anthem was sung in the prison and that he expressed an unusual
interest in detainee transfers and the guard schedule. Other documents
make clear that U.S. intelligence officials had earlier concluded that
Kurnaz, who went to Pakistan shortly after the terrorist attacks of
Sept. 11, 2001, to visit religious sites, had simply chosen a bad time
to travel.
The process is "fundamentally corrupted," said Baher Azmy, a professor
at Seton Hall Law School who represents Kurnaz. "All of this just
reveals that they had the wrong person and they knew it."
He added: "His entire file reveals he has no connection with
terrorism. None. Confronted with this uncomfortable fact, the military
panel makes up evidence" to justify its claim that only real
terrorists are incarcerated at Guantanamo Bay.
Cmdr. Jeffrey D. Gordon, a Pentagon spokesman, declined to comment on
whether the military now believes that it erred in imprisoning Kurnaz,
or to discuss the release of new records. He stressed that a
substantial amount of information about Kurnaz remains classified.
In a written statement, Gordon said that the military's determinations
about detainees are "necessarily impacted by a variety of factors
which can include the passage of time. Also, such decisions are based
on the entirety of the information before DoD, and it is misguided to
draw conclusions based on only parts of some documents."
Some of Kurnaz's experience -- including the existence of official
documents suggesting that he was detained by mistake -- is well known.
In March 2005, The Washington Post wrote about Green's decision after
court officials inadvertently declassified portions of it. Kurnaz was
released from Guantanamo Bay in August 2006, a few months after new
German Chancellor Angela Merkel told President Bush in a private
meeting that obtaining the detainee's freedom was one of her top
priorities.
But the text of the internal government memos exonerating Kurnaz, the
Army general's memo supporting Kurnaz's continued incarceration and
key portions of Green were not disclosed earlier because the U.S.
military official overseeing Guantanamo Bay argued that their release
would compromise national security.
Combatant Status Review Tribunals, created by the Pentagon, have
overwhelmingly supported continued detention of those at Guantanamo
Bay. (Photos By Brennan Linsley -- Associated Press)
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Kurnaz was born in Turkey and had lived nearly his entire life in
Germany. He traveled to Pakistan on Oct. 3, 2001, to visit religious
sites, connecting at one point with a missionary group that U.S.
military officials have said promotes jihadi ideology and has been
used as a cover by members of the Taliban and al-Qaeda.
In December 2001, Pakistani police pulled Kurnaz and missionaries off
a bus and handed him to U.S. troops. Four weeks later, he was flown to
Guantanamo Bay -- one of the first detainees to arrive in the newly
opened prison.
German and American intelligence officers interviewed Kurnaz in
September 2002, records show. They jointly concluded that nothing was
linking the man from Bremen to terrorist cells or enemy fighters and
that he should be freed. In a memo dated May 19, 2003, the commanding
general of the Criminal Investigation Task Force, a Pentagon
intelligence unit that interrogates detainees and collects evidence
about them, wrote that "CITF is not aware of evidence that Kurnaz was
or is a member of al-Qaeda. CITF is not aware of any evidence that
Kurnaz may have aided or abetted, or conspired to commit acts of
terrorism."
After the Supreme Court ruled in 2004 that Guantanamo Bay prisoners
could not be held indefinitely without fact-finding by an objective
tribunal, the Pentagon hastily assembled panels of field-grade
officers to serve as Combatant Status Review Tribunals. Since they
began, the panels have overwhelmingly supported continued detention of
those at Guantanamo Bay, ruling that 534 detainees were "enemy
combatants," while only 38 were not.
In September 2004, one such panel cited intelligence on a suicide
bombing by someone Kurnaz allegedly knew -- an account later found to
be incorrect -- in concluding that Kurnaz was "properly classified as
an enemy combatant" and was a member of al-Qaeda.
In a previously classified passage of her ruling, Green said the panel
ignored "conflicting exculpatory evidence in at least three separate
documents," thereby raising questions about its impartiality. The only
solid information in Kurnaz's file showed that the CIA, U.S. military
intelligence and German intelligence found nothing linking him to
terrorist groups, she said.
Green complained about the panel's reliance on an unsubstantiated
memo, dated June 25, 2004, written by Brig. Gen. David B. Lacquement,
then head of U.S. Southern Command's intelligence unit, to Defense
Secretary Donald H. Rumsfeld.
Much of Lacquement's memo is still redacted. But besides noting
Kurnaz's prayers during the U.S. national anthem, the newly
declassified portions also state that he "asked how tall the
basketball rim was" in the prison yard, which Lacquement said revealed
a desire to escape. In addition, Kurnaz "attempted to obtain
information concerning detainee transfers" and "to discuss the current
work schedule of the guards," the memo notes.
Green expressed doubt that Lacquement had developed compelling new
information about terrorist links that tipped the scales. Lacquement,
who is now a major general commanding the Army Intelligence and
Security Command at Fort Belvoir, did not respond to requests for
comment.
At a minimum, Green wrote, the documents raised the question of what
specific information could have been discovered between the May 2003,
memo stating that there was no evidence that the detainee was a member
of al-Qaeda or was in direct contact with any Taliban recruiters, and
the June 2004, memo by the general stating that the detainee was a
danger.
"However the record in Kurnaz is interpreted, it definitively
establishes that the detainee was not provided with a fair opportunity
to contest the material allegations against him," Green wrote. Until
recently, much of her denunciation was classified, by a court security
office relying on Pentagon and Justice Department officials for advice
on what to conceal from the public.
In January 2006, another military review panel decided once again that
Kurnaz was still "a danger" and should remain at Guantanamo Bay.
Internal Defense Department e-mails show that this administrative
review board, roughly comparable to a parole board, did not look at
the material that Kurnaz's lawyer had submitted to make its decision.
Combatant Status Review Tribunals, created by the Pentagon, have
overwhelmingly supported continued detention of those at Guantanamo
Bay. (Photos By Brennan Linsley -- Associated Press)
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Discussion PolicyDiscussion Policy CLOSEComments that include
profanity or personal attacks or other inappropriate comments or
material will be removed from the site. Additionally, entries that are
unsigned or contain "signatures" by someone other than the actual
author will be removed. Finally, we will take steps to block users who
violate any of our posting standards, terms of use or privacy policies
or any other policies governing this site. Please review the full
rules governing commentaries and discussions. You are fully
responsible for the content that you post.
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After a public uproar in Germany over the German government's role in
Kurnaz's continuing imprisonment, Merkel pressed Bush at a private
meeting that January to release him. In July 2006, an unusual second
review board convened.
The FBI's counterterrorism division, new records show, wrote in a memo
dated May 31, 2006, for that board that "the FBI has no investigative
interest in this detainee" and that "there is no information that
Kurnaz received any military training or is associated with the
Taliban or al-Qa'ida." The wording of its brief conclusion about
whether Kurnaz posed any threat was redacted.
The second review board ruled that Kurnaz was no longer an enemy
combatant and that he could be released, but the reasons remain redacted.
Not until August 2006, nearly five years after his imprisonment began,
was Kurnaz flown home, goggled, masked and bound, as he had been when
he was flown to Guantanamo Bay. As U.S. military officials led him out
of Ramstein Air Base, and as he was about to take his first steps onto
German soil, the Americans offered to leave plastic wrist cuffs on
their former prisoner. German federal police declined.
He was escorted as a free man to the back seat of a Mercedes-Benz
sedan for the short ride to his reunion with his parents and two
younger brothers.
Staff researcher Julie Tate contributed to this report.
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