by Andy Worthington
Last 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 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 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 — or bringing 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 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 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.
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 Guantánamo 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 Guantánamo. 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 Guantánamo 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 Guantánamo 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 Guantánamo. 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.
– Andy Worthington is a journalist, the author of “The Guantanamo Files: The Stories of the 774 Detainees in America’s Illegal Prison,” and the co-director of the documentary film, “Outside the Law: Stories from Guantanamo.” A version of this article first appeared on Cageprisoners.