Lawyers: Military violated rules at Gitmo


Lawyers for Guantanamo Bay detainees told a federal appeals court Wednesday that the United States violated its own rules when it branded hundreds of prisoners as enemy combatants – basing their argument on statements by two U.S. military officers.

The lawyers asked the U.S. Court of Appeals for the District of Columbia Circuit to order the immediate release of Mohammed Sulaymon Barre, a Somali among some 360 prisoners at Guantanamo Bay. Barre was arrested in Pakistan in November 2001 after he had obtained refugee status from a U.N. agency.

Shane Kadidal, a New York lawyer, said petitions will be filed for other Guantanamo detainees, alleging the military violated its own rules in the Combatant Status Review Tribunals – the military panels that determine whether someone was an enemy combatant who should be held.

Barre’s attorneys say a Navy rear admiral who used to be in charge of the tribunal system noted in an affidavit that the military, at least in some cases, did not present all exculpatory evidence.

In his May 31 statement, Navy Rear Adm. James M. McGarrah acknowledged that “if certain information which suggested that the detainee should not be designated as an enemy combatant was duplicative” then that “duplicative information” might not have been presented to the tribunals at Guantanamo.

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Evidence indicating a detainee was not an enemy combatant may also have been excluded “if it did not relate to a specific allegation being made against the detainee,” McGarrah said.

Combatant Status Review Tribunals have been held for about 570 detainees at Guantanamo Bay, a U.S. Naval base in southeast Cuba. The military determined that all but 38 were “no longer enemy combatants.”

Rules issued by Deputy Secretary of Defense Gordon England in July 2006 stipulate that any “evidence to suggest that the detainee should not be designated as an enemy combatant” must be presented to the tribunal.

A Pentagon spokesman defended the process Wednesday, referring a reporter to a statement by Justice Department lawyers that said “it is manifestly reasonable not to fill the administrative record with duplicative material.”

Furthermore, presenting exculpatory evidence unrelated to a specific allegation against the detainee “would be useless at best and confusing at worst,” the Justice Department lawyers argued.

The New York-based Center for Constitutional Rights, which represents many of the Guantanamo detainees, filed the petition Wednesday. It did not file the petition on behalf of other detainees because the court previously requested that cases be presented individually, Kadidal said.

The petition also cited a statement by Army Reserve Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who served as a main liaison between the Combat Status Review Tribunals and intelligence agencies. Abraham’s affidavit, submitted to the U.S. Supreme Court in June, said Combatant Status Review Tribunal members relied on vague and incomplete intelligence while being pressured to rule against detainees.

The petition said that among the exculpatory evidence that the military failed to present was that he was recognized by the United Nations as a refugee from war-torn Somalia.

He is accused of having links to al-Wafa, a charity the U.S. State Department classifies as a terrorist organization. Barre has consistently denied having any ties to al-Wafa.

Meanwhile, the Miami-based Democracy Movement said 22 Cuban men were entering the third day of a hunger strike at the Migrant Operation Center at Guantanamo Bay. A U.S. official said there were 17 strikers.

The protesters are among 44 Cubans who were captured at sea but could not be returned to Cuba because U.S. authorities determined they had a credible fear of persecution. They have been detained at Guantanamo while the U.S. seeks to settle them in a third country.