US Court Denies Justice to Dead Men at Guantanamo

On Wednesday, in the District Court in Washington D.C., Judge Ellen Huvelle turned down (PDF)
a second attempt by the families of Yasser al-Zahrani, a Saudi, and
Salah al-Salami, a Yemeni (two of the three men who died in mysterious
circumstances in Guantanamo on June 9, 2006, along with Mani al-Utaybi,
another Saudi) to hold US officials accountable for the circumstances in
which their family members were held and in which they died.

Judge Huvelle's ruling came in spite of additional evidence submitted by the families (PDF),
drawing on the accounts of four US soldiers who were present in
Guantanamo at the time of the deaths, and who have presented a number of
compelling reasons why the official story of the men's triple suicide
(as endorsed by a Naval Criminal Investigative Service report in 2008) is a cover-up. That story, written by Scott Horton, was published by Harper's Magazine in January this year, and I covered it here, and also in an update in June, although it has largely been ignored in the mainstream US media.

The case, Al-Zahrani v. Rumsfeld,
was initially filed in January 2009, and primarily involved the
families of the dead men seeking to claim damages through the precedent
of a case known as Bivens,
decided by the Supreme Court in 1971, in which, for the first time,
damages claims for constitutional violations committed by federal agents
were allowed. The families claimed relief under the Fifth Amendment Due
Process Clause (preventing individuals from being deprived of life,
liberty, or property without "due process of law") and the Eighth
Amendment (which prohibits the infliction of "cruel and unusual
punishments"), as well as submitting a claim, under the Alien Tort Claims Act, "alleging torture, cruel, inhuman and degrading treatment, and violations of the Geneva Conventions."

Despite the families' claims, the case was dismissed by the District Court on February 16, 2010, for two particular reasons. One involved a handful of legal precedents -- including Rasul v. Myers,
a case brought in 2006 by four former Guantanamo detainees from the UK,
which was finally turned down by the Supreme Court in December 2009. In
the hope of making tortuous legal reasoning comprehensible to the lay
reader, these rulings essentially provide precedents for preventing the
courts from providing a Bivens remedy and entitle the defendants to "qualified immunity against plaintiffs' constitutional claims."

Rather more readily comprehensible, and deeply shocking, is a clause
in the Military Commissions Act, passed by Congress in the fall of 2006
and unchanged in the legislation revived under President Obama in 2009, which, as well as creating -- or bringing back to life -- the much-criticized Military Commission trial system
for Guantanamo prisoners that was ruled illegal by the Supreme Court in
June 2006, also granted blanket immunity to anyone involved in any
activities relating to the detention and treatment of prisoners held in
the "War on Terror."

As Judge Huvelle explained in her opinion:

Specifically, the Court found that the section of the MCA
removing from the courts 'jurisdiction to hear or consider any other
action against the United States or its agents relating to any aspect of
the detention, transfer, treatment, trial, or conditions of
confinement' of an alien detained and determined to be an enemy
combatant by the United States is still valid law.

With these precedents, there was, to be blunt, little hope that Judge
Huvelle would grant the complaint filed by the families of Yasser
al-Zahrani and Salah al-Salami, even though the families had made an
emotional appeal, pointing out:

The fact that Defendants fought to keep secret virtually
all information concerning the cause and circumstances of Al-Zahrani and
Al-Salami's deaths from their families, the public and the courts until
compelled by FOIA litigation in 2008,
and that details of an elaborate, high-level cover-up of likely
homicide at a "black site" at Guantanamo are only now emerging nearly
four years after the fact, should disturb the Court and caution it
against permitting unspecified national security concerns to trump all
other factors in this case without question.

Perhaps more to the point, the families of al-Zahrani and al-Salami
attempted to persuade Judge Huvelle that "Courts have allowed Bivens
claims by detainees in the post-9/11 context to proceed ... despite the
presence of national security factors," citing, amongst other cases, Ertel v. Rumsfeld, an ongoing case in Chicago "permitting US citizens detained by the United States in Iraq [former contractors Donald Vance and Nathan Ertel] to bring Bivens claims against Donald Rumsfeld for authorizing their detention and abuse," and Padilla v. Yoo, another ongoing case (in California), in which Jose Padilla, a US citizen detained as an "enemy combatant" in the United States as part of the "war on terror," was permitted "to bring a Bivens suit against John Yoo [the lawyer who wrote the Bush administration's notorious "torture memos"] for authorizing his detention and torture."

The families also urged the court to "scrutinize bald assertions of
national security and secrecy because the government's account of the
risks has in many cases been overblown," adding, "As an apt case in
point, after years of dire warnings to justify the indefinite detention
of Guantanamo detainees and forestall court review, the government has
by now released the majority of detainees without incident, including
approving dozens of detainees for transfer on the eve of habeas review."
For reference, the families drew again on the case of Jose Padilla,
citingPadilla v. Hanft,
and "observing that the government had 'steadfastly maintain[ed] that
it was imperative in the interest of national security' to hold Padilla
in military custody for three and a half years, yet abruptly changing
course on the doorstep of Supreme Court review, seeking to move him into
criminal custody, at a 'substantial cost to the government's
credibility before the courts.'" They also cited the case of Yasser Hamdi,
a US citizen held briefly in Guantanamo, who was also held as an "enemy
combatant" on the US mainland. In Hamdi's case, the Bush administration
argued that "military necessity required Hamdi's indefinite detention,
yet [the authorities] releas[ed] him to Saudi Arabia seven months
later."

Despite all these arguments, Judge Huvelle was clear in her ruling
that, although the allegations were of a "highly disturbing nature,"
that alone "cannot be a sufficient basis in law" for the case to be
heard. She also explained that the legal precedents established that
"matters relating to the conditions of detention in Guantanamo remain
the purview of Congress alone -- not the courts -- due to national
security concerns," as AFP explained.

"The question before the court," she said, "is not whether homicide
'exceeds the bounds of permissible official conduct in the treatment of
detainees in US custody and demands accountability' or whether the
families of Al-Zahrani and Al-Salami deserve a remedy. Rather, the
question is 'who should decide whether such a remedy should be
provided.'"

Following the ruling, Yasser al-Zahrani's father Talal, spoke for
everyone disturbed by the revelations of Joe Hickman and his colleagues,
when he stated,
"The courts should be investigating my son's death and holding those
responsible accountable. President Obama should be defending human
rights and the democratic values the US preaches to the world, rather
than going to court to defend the lies and gruesome crimes of the Bush
administration."

Pardiss Kebriaei of the Center for Constitutional Rights, which filed
the lawsuit with William Goodman of Goodman & Hurwitz, P.C. and the
International Human Rights Law Clinic at the Washington College of Law,
added, "The very secrecy of Guantanamo is what allowed the government
to torture and illegally imprison innocent men there for years, as we
now know from leaked government memos, whistleblowers, and repeated wins
in court in detainees' habeas cases. Yet the court's decision today
allows secrecy to continue to shroud the truth about these deaths, in
the face of compelling evidence of a four-year cover-up of murder."

With this ruling, it is uncertain how the families of Yasser
al-Zahrani and Salah al-Salami can continue their quest for truth and
justice, as it appears certain that Congress has no desire to
investigate the circumstances of the men's deaths. Sadly, only one major
media outlet, AFP, covered the latest ruling, demonstrating how the
story of the men's deaths is viewed as such a toxic issue by most of the
mainstream media that it is being ignored. If you care about what
appears to be a particular vile cover-up by parts of the US
administration, please do all you can to help to keep this story alive.

Below, I publish the sections of the families' complaint, submitted
as part of the "Motion for Reconsideration," filed on May 3, 2010, that
Judge Huvelle turned down last week, which spell out the deeply
distressing story exposed by Harper's Magazine in January this year.

Excerpts from the "Motion of Reconsideration in Light of Newly Discovered Evidence," Al-Zahrani v. Rumsfeld, Submitted May 3, 2010

In
early 2009, as Plaintiffs' Amended Complaint was pending before this
Court, a former soldier by the name of Joe Hickman approached the law
school of Seton Hall University, which had produced several reports
dealing with the deaths and whose work Hickman had followed. Hickman
was a decorated Army officer who had served a distinguished tour of duty
at Guantanamo from March 2006 to March 2007 and had been on duty as
sergeant of the guard the night Al-Zahrani and Al-Salami died. Hickman
said he had decided to come forward with his story because what he had
seen "was "haunting me" and he thought that "with a new administration
and new ideas I could actually come forward." While he did not want to
speak to the press, he felt that "silence was just wrong."

On January 18, 2010, Hickman's account and interviews from three
other soldiers under his supervision -- Specialist Tony Davila, Army
Specialist Christopher Penvose, and Army Specialist David Caroll -- were
reported by Harper's Magazine. The article, which serves as the
source for this motion and Plaintiffs incorporate in full herein, was
the first time Plaintiffs and their counsel became aware of the
soldiers' accounts.

Those accounts are dramatically at odds with the official version of
events on June 9-10, 2006. The soldiers describe a cover-up initiated by
the authorities within hours of the deaths and say they were
affirmatively told not to speak out. Despite having first-hand
observations of camp activity that night, they were never approached or
interviewed for the NCIS investigation.
While the official account of the deaths concluded that Al-Zahrani,
Al-Salami and the third deceased, Mani Al-Utaybi, had hanged themselves
in their cells, the soldiers' accounts strongly suggest that the men
were transported from their cells to an undisclosed, unofficial "black
site" nicknamed "Camp No" that was outside the perimeter of the main
prison camp, and died there or from events that transpired there.

Specifically, according to the soldiers' reported accounts:

* Between approximately 6-8 p.m. on June 9, Hickman observed the van
used to transport detainees drive up to the camp where the deceased were
held three separate times in short succession. Each time, guards
escorted a detainee from the camp to the van and drove away in the
direction of Camp No. By the third time he saw the van approach the
deceased's camp, Hickman decided to drive ahead of the vehicle in the
direction of Camp No to confirm where it was going. From his vantage
point shortly thereafter, he saw the van approach and turn toward Camp
No, eliminating any question in his mind about its destination.

* Camp No is an unnamed and officially unacknowledged facility
located outside the perimeter of the area enclosing the prison complex
at Guantanamo. Guards nicknamed the facility "Camp No" because anyone
who asked if it existed would be told, "No, it doesn't." Hickman was
never briefed about the site, despite frequently being put in charge of
security for the entire prison. He reported once hearing a "series of
screams" coming from the facility.

* At approximately 11:30 p.m., from his position in a watch tower,
Hickman watched the van he had seen transporting the detainees to Camp
No return to the camp. This time, the van backed up to the entrance of
the medical clinic, as if to unload something.

* At approximately 11:45 p.m., nearly an hour before the NCIS claims
the first dead body was discovered in the cells, Army Specialist
Christopher Penvose was approached by a senior navy officer who appeared
to be extremely agitated and instructed Penvose to go the prison chow
hall, identify a specific officer who would be dining there, and relay a
specific code word. Penvose did as he was instructed. The petty officer
leapt up from her seat and immediately ran out of the chow hall.

* At approximately 12:15 a.m. on June 10, Hickman and Penvose
reported that the camp was suddenly flooded with lights and the scene of
a frenzy of activity. Hickman headed to the medical clinic, which
appeared to be the center of activity, and was told by a medical
corpsman there that three dead prisoners had been delivered to the
clinic, that they had died because they had rags stuffed down their
throats, and that one of them was severely bruised.

* According to Specialist Tony Davila, guards he talked to also said
the men had died as the result of having rags stuffed down their
throats.

* While the NCIS report's narrative is that the deceased were found
dead in their cells and transported from there to the medical clinic,
Penvose, who was on guard duty in a watch tower at the time the deceased
would have been transported to the clinic, had an unobstructed view of
the walkway between the camp and the clinic, which was the path by which
any detainee would be delivered to the clinic. Penvose reported that he
saw no detainees being moved from the camp to the clinic.

* Army Specialist David Caroll, who was also on guard duty in another
watch tower at the time the NCIS report says the deceased would have
been transported to the clinic, also had an unobstructed view of the
alleyway that connected the men's specific cell block to the clinic. He
similarly reported that he had seen no detainees transferred from the
cell block to the clinic that night.

* By dawn, the news had circulated through the prison that three detainees had committed suicide by swallowing rags.

* On the morning of June 10, Defendant Mike Bumgarner, Commander of
the Joint Detention Group at Guantanamo at the time, called a meeting of
the guards during which he announced that three detainees had committed
suicide during the night by swallowing rags, causing them to choke to
death. Defendant Bumgarner said that the media would instead report that
the detainees had committed suicide by hanging themselves in their
cells. He said that it was important that the guards make no comments or
suggestions that in any way undermined the official report, and
reminded them that their phone and email communications were being
monitored. This account of the meeting was corroborated by various
guards in independent interviews conducted by Harper's.

* On the evening of June 10, Defendant Harry Harris, Commander of the
Joint Task Force at Guantanamo and Defendant Bumgarner's superior at
the time, read this statement to reporters: "An alert, professional
guard noticed something out of the ordinary in the cell of one of the
detainees. ... When it was apparent that the detainee had hung himself,
the guard force and medical teams reacted quickly to attempt to save the
detainee's life. The detainee was unresponsive and not breathing. [The]
guard force began to check on the health and welfare of other
detainees. Two detainees in their cells had also hung themselves."

* In a press interview at the time, Defendant Bumgarner, contrary to
his own admonition to the guards, let slip that each deceased detainee
"had a ball of cloth in their mouth either for choking or muffling their
voices."

* As soon as Defendant Bumgarner's interview was published, Defendant
Harris called him for a meeting and told him that the article "could
get me relieved." The same day, an investigation was launched to
determine whether classified information had been leaked from
Guantanamo. Defendant Bumgarner was subsequently suspended.

* Hickman and Davila later learned that Defendant Bumgarner's home
was raided by the FBI over a concern that he had taken classified
materials and was planning to send them to the media or use them for
writing a book.

* The only apparent discrepancy between Defendant Bumgarner's
interview and the official Pentagon narrative was on one point: that the
deaths had involved cloth being stuffed into the detainees' mouths.

* For several months after Hickman first came forward, he and his
attorneys attempted to pursue an investigation through the Department of
Justice. Their first meeting was on February 2, 2009, where they
related a detailed account of Hickman's observations and later handed
over a list of corroborating witnesses with contact information. The
Justice Department ultimately closed its investigation on November 2,
2009, concluding without explanation that "the gist of Sergeant
Hickman's information could not be confirmed" and his conclusions
"appeared" to be unsupported.