In a large majority of the more than 50 case files reviewed by The Washington Post, each panel of three military officers that made the decision found the detainee's denial of the allegations unpersuasive and relied instead on classified evidence withheld from the detainee or on confessions that he said were made under duress. The military says releasing the classified material would jeopardize national security and its intelligence sources.
"The best you could say of the government's evidence against these people is that it's extraordinarily thin -- to the point of being nonexistent -- and anything that cuts against their case is rejected," said Brent Mickum, Mubanga's attorney.
Feroz Abbasi admitted that he traveled from London to Afghanistan "to take action against Americans and Jews." A tribunal reviewing his case reported that he said he was not disturbed about being called an enemy combatant.
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Some of the transcripts draw portraits of fanatical holy warriors bent on violence against the United States and Israel. Abbasi, for example, admitted to interrogators that he traveled from his home in London to Afghanistan "to take action against Americans and Jews" and that he learned how to use assault weapons, grenade launchers and machine guns in "Camp Farooq." After Sept. 11, 2001, he volunteered to help an elite terrorist group defend the airport in Kandahar against U.S. forces. The tribunal reported that he said he was not disturbed about being called an enemy combatant but was "humbled Allah would honor me so."
Abbasi was removed from his tribunal hearing as he disputed some allegations and as he shouted that the tribunal had denied him his rights as a prisoner of war. "Your actions will come before Allah," Abbasi told the tribunal. "And Allah may forgive you and Allah may punish you."
Detainee lawyers say the allegations made during the tribunal hearings cannot be trusted, for three main reasons.
First, they said the tribunal definition of enemy combatant is so broad that the military has incarcerated people who never took up arms against the United States or were arrested thousands of miles from Afghanistan or Iraq, Koran teachers who taught Taliban members, and professionals who say they unknowingly gave money to charitable organizations that funded al Qaeda.
Abd Al Aziz Sayer Uwain Al Shammeri, a Kuwaiti professor of Islamic studies, questioned the tribunal's presumption that he was an al Qaeda member, an accusation that the tribunal based on three facts: that a version of his name was on an international terrorist list, that he traveled to Afghanistan in September 2001 and that he tried to cross into Pakistan without a visa. He said millions of Arabs linked to the same Saudi tribe share his last name, and that he traveled to Afghanistan to teach the Koran as a Muslim duty.
"How can it be that travel to a large country with millions of people is travel for al Qaeda?" he asked, according to tribunal documents. "For is a person who traveled to China considered a communist?"
Al Shammeri said he fled Afghanistan after the Sept. 11 attacks without returning to his host's home to retrieve his passport when he heard that the Northern Alliance, the Taliban's main military opposition at the time, was rounding up and killing any Arabs it could find. He said he presumed Pakistani authorities would return him to Kuwait once they verified his identity.
The military officers found Al Shammeri's explanation about his passport "unpersuasive" and cited other classified evidence.
"I didn't think they would tell me, 'Since you don't have identification or a passport, that means you're a follower of Usama Bin Laden,' " Al Shammeri said, according to tribunal documents.
Detainee attorneys also contend that tribunal authorities select the information they consider. Al Hajj, a Bosnian Muslim clergyman originally from Algeria, was arrested in October 2001 based on an FBI tip that he and others were plotting to bomb the U.S. Embassy in Sarajevo. The Bosnian Supreme Court ruled in January 2002 that there was no credible evidence that he and five others had hatched such a plot. The day they were released, they were immediately taken into custody by U.S. authorities.
Al Hajj's lawyers provided the Bosnian court documents to the Justice Department months ago. The tribunal agreed that the records would be relevant but said they were "not reasonably available." The panel did, however, obtain a copy of an earlier Bosnian court document, which indicated al Hajj was under investigation.
"They can get their hands on information they want, but they can't get their hands on what detainees ask for," said Melissa Hoffer, one of al Hajj's attorneys.