Tribunal orders that Guantanamo detainee be freed

WASHINGTON -- The US military admitted for the first time yesterday that one of the prisoners whom the Bush administration has held without charges for more than two years at Guantanamo Bay was never an Al Qaeda or Taliban fighter and should be immediately released from the interrogation camp in Cuba.

The man, who was captured in Afghanistan and taken to the base in May 2002, was ordered set free by the military's new "combatant status review tribunal."

The Pentagon set the panel up after the Supreme Court ruled in June that the Guantanamo detainees are entitled to greater safeguards, including a right to challenge the basis for their indefinite detention in civilian court.

Navy Secretary Gordon England, who is overseeing the reviews, announced the finding yesterday but declined to identify the man. He said the man had previously been determined to be an enemy combatant by other officials, but he did not explain why the tribunal reached a different conclusion in this case.

"This is a very, very difficult process," England said. "These are very complex issues. The information, many times it's ambiguous. It's conflicting. . . . These are very hard decisions. They're very thoughtful decisions because you do try to balance this individual with the security of the United States."

Before the Supreme Court order, however, the administration had contended that all the detainees were enemy combatants, and had resisted any official recourse for those who claimed to be innocent.

Rachel Meeropol of the Center for Constitutional Rights, which brought the Guantanamo case before the Supreme Court, said yesterday's decision came two years late and showed why the Bush administration should have given a hearing to each prisoner from the beginning.

"The fact that they've held someone for two or three years who they've now determined was not an enemy combatant is awful," Meeropol said. "We think the administration should apologize and compensate this individual for the years that were stolen from his life."

England said there were no plans for compensation. He drew parallels to the roughly 150 former Guantanamo prisoners who were released before the creation of the new review tribunals.

In those earlier cases, the military said the detainees had been enemy combatants, but were being released because they no longer posed a threat and had no further intelligence value.

"He was determined to be an enemy combatant at different times," England said. "We now have more data available, we have a different group of people [who] came to a different conclusion."

The regulations define the term "enemy combatant" as anyone who "was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

The Bush administration says it can indefinitely detain any captured "enemy combatant" until the end of the conflict to prevent that person from returning to the battlefield, a theory the Supreme Court endorsed. However, the court also ruled that those people must be given a fair chance to show that they were not combatants and were captured by mistake.

The government has set up the reviews in response to the Supreme Court decision. But some legal watchdogs say the panels don't provide enough of an opportunity for detainees to challenge their incarceration. It could take a second Supreme Court decision to determine if the reviews are sufficient.

England said the other 29 detainees for whom the review process is now complete were found to be properly categorized as "enemy combatants" and will continue to be held.

For 25 other detainees, hearings have been held but a final determination has not been made. Case files have been opened for about 200 of the 585 detainees at the base, he said, and all will have a hearing soon.

Several human rights groups who have been battling the government over its detainee policies said yesterday that the decision to release one man does not prove that the reviews are sufficiently fair.

"One case doesn't validate the process," said Wendy Patten of Human Rights Watch. "These tribunals are deeply flawed. The detainees face serious limitations on their ability to tell their side of the story, they can't have lawyers, and the process is stacked against them."

Ken Hurwitz of Human Rights First said the case of the detainee who will now be freed fits a pattern of several recent terrorism-related cases in which the government has held suspects before evidence emerged that they were innocent.

Each case demonstrates why it is "crucial" that an independent decision-maker be involved in all terrorism cases, he said.