Died in mysterious circumstances in Guantánamo

US Court Denies Justice to Dead Men at Guantánamo


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 Guantánamo 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 Guantánamo 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 asBivens, 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 Guantánamo 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 — orbringing back to life — the much-criticized Military Commission trial system for Guantánamo 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 untilcompelled by FOIA litigation in 2008, and that details of an elaborate, high-level cover-up of likely homicide at a “black site” at Guantánamo 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 Guantánamo 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, citing Padilla 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 Guantánamo, 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 Guantánamo 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 Guantánamo 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.


12:53 Posted by Jan Boeykens in Guantánamo, Human rights | Permalink | Comments (0) | Tags: guantánamo |  Facebook |