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Panel Ignored Evidence on Detainee

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."


Murat Kurnaz, 23, has been held at Guantanamo Bay since at least January 2002. (Hurriyet Via AP)

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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. 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 Guantanamo 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.

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, 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 New Jersey. "Having concluded long ago that he has no links to terrorists, what is keeping him there?"

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.


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