DV, October 1, 2010
On September 28, Judge Ellen Huvelle affirmed the D.C. District Court’s decision to dismiss Al-Zahrani v. Rumsfeld, a civil lawsuit brought by the Center for Constitutional Rights (CCR) and co-counsel concerning three men who died in detention at Guantánamo in June 2006. Her decision came despite new evidence from four soldiers stationed at the base, which strongly suggests the three men were murdered at a secret site at Guantánamo and that the government worked hard to cover up the true cause and circumstances of the deaths. The government reported the three men committed suicide by hanging themselves in their cells.
The court acknowledged that the allegations were "disturbing," but dismissed the case by citing national security considerations and possible "embarrassment" to the government. It also made the incredible assertion that even if every allegation of torture and homicide against U.S. officials is entirely true, the defendants’ conduct was within their permissible scope of employment. The court also said that only Congress can judge whether a mechanism for accountability should exist for the families of the deceased, and that the Military Commissions Act of 2006 still deprives the courts of jurisdiction over the treatment of any foreigners designated as "enemy combatants." In other words, after the government arbitrarily labels a foreign citizen as an "enemy combatant," it can torture or kill that individual, and then cover it up, without any legal accountability. If this weren’t callous enough, note that the court also held that "qualified immunity" protects government officials from accountability for the deaths because in 2006 it was not clear whether the Constitution applied in the island-prison of Guantánamo (where the U.S. is the only governing authority), and government officials could therefore not have known whether or not torture and killings violated the law.
A little known but odious fact about Guantánamo litigation: an old case concerning U.S. government crimes in Nicaragua in the 1980s has been repeatedly resuscitated to block efforts to secure accountability for the wrongful detention and torture of men detained on the island-prison. Sanchez-Espinoza v. Reagan was a suit filed by CCR in 1985 on behalf of twelve Nicaraguan citizens and twelve members of the U.S. House of Representatives against nine U.S. officials, two organizations operating paramilitary training camps in the United States, and the leader of "Contra" forces that terrorized the civilian population and tried to overthrow the left-leaning government of Nicaragua. The suit was an attempt to expose and curb the Reagan administration’s responsibility for human rights violations in Nicaragua and the illegal funding of an undeclared war that would go on to claim over 30,000 Nicaraguan lives.
Those tuned in to the history of U.S. support for right-wing political forces should find it remarkable that in ruling to dismiss Al-Zahrani v. Rumsfeld, the D.C. District Court cited Sanchez-Espinoza v. Reagan, arguing that if the latter case—which alleged U.S. involvement in horrors such as "summary execution, murder, abduction, torture, [and] rape"—was dismissed on the basis of its interfering with "the special needs" of the U.S. government (including by potentially causing the "embarrassment of our government abroad"), then Al-Zahrani v. Rumsfeld should also be dismissed on similar grounds. After all, whatever abuses the three men who died at Guantánamo suffered in 2006, they could not be graver than the abuses for which CCR sought remedy in 1985. The irony is that while Sanchez-Espinoza v. Reagan lost in the courts, it helped create an important international solidarity movement with Nicaraguans. Indeed, the injustice of U.S. support for the Contra War is today widely considered beyond debate. But this same case is now being used in the courts to block any case attempting to secure accountability for the wrongful detention and torture of men detained in Guantánamo.
Returning to the present, Talal Al-Zahrani’s eloquent voice, which has become familiar to me as we have spoken about his case, rings in my ears. I don’t have the experience to fathom the full contours of his grief. "No one can compensate me for the loss of my son; no one can bring him back to me," he said, referring to his son, Yasser Al-Zahrani, who was 17 when he was taken to Guantánamo and 21 when he died there in 2006. "But the court’s refusal to hear my son’s case is devastating and deepens my family’s pain. 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 U.S. preaches to the world, rather than going to court to defend the lies and gruesome crimes of the Bush administration."
Al-Zahrani v. Rumsfeld, filed on behalf of the families of two of the deceased, Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, charges the government and 24 federal officials with responsibility for the men’s wrongful detention, abuse, and deaths. (The family of the third man who died, Mani Shaman Al-Utaybi, a 30-year-old man from Saudi Arabia, quite understandably did not have enough faith in the U.S. legal system to pursue his case in court.) Earlier this year, the court dismissed the case, not because of the facts presented, but because it accepted the government’s argument that national security considerations prevented the court from hearing the families’ claims.
Following the dismissal, the families asked the court to reconsider and hear the case, based on newly available evidence from soldiers whose testimony, as reported in Harper’s magazine in January 2010, strongly suggests that the men were killed.
These four soldiers dared to publicly air their stories at great personal risk because their consciences did not allow them to remain silent any longer. In light of this, it is particularly dismaying that the court dismissed their testimony as being insufficient to even merit further investigation, and instead accepted the findings of a report issued by the U.S. military (which has never been made fully public), for which the dissenting soldiers were never even interviewed. Even if the court determined that the soldiers’ testimonies did not provide sufficient new evidence to merit further investigation, it is remarkable that clear evidence of a government cover-up also failed to move the court. All four soldiers say they were ordered by their commanding officer to not speak out, and all provided evidence of a top-down cover up beginning almost immediately after the three deaths.
Judge Ellen Huvelle’s argument that there is a scarcity of compelling information to air the case in court is additionally distressing given that the three men died at Guantánamo before they could talk to attorneys or their families; they had no way of making public what they had suffered, and death has rendered them forever silent. Torture survivors can eventually tell their stories, but the trials of dead men must be pieced together by those committed to both truth and justice.
Further litigation to ensure the families of the men who died at Guantánamo get their day in court will be an uphill battle, making public attention to these cases, and public demands for justice, particularly critical to securing some modicum of justice and accountability for these grave crimes. This means that public attention to these cases, and public demands for justice, will be particularly critical in attempting to secure some modicum of justice and accountability for grave crimes. Every individual can help build pressure to give the families answers about what happened to their loved ones. As it stands, a man can be killed at Guantánamo without anyone being able to raise the issue in court, and without any independent investigation taking place; everyone can demand a stop to this situation.
Write to Attorney General Eric Holder at the Department of Justice and demand that he direct a full and meaningful investigation into these deaths, and into every death at Guantánamo, rather than blocking attorneys from seeking information and accountability in the courts. (There have been six deaths at Guantánamo with no transparent investigation into or accountability for any of them, or for the unknown number of deaths at Bagram and other U.S. detention facilities around the globe.). Tell Attorney General Holder that the Obama administration should be defending human rights and democratic values rather than going to court to defend the potential lies and crimes of the Bush administration.
If you are in the United States, you can also write to your congressional representatives and demand an investigation into these deaths. Tell them that the government should not be able to get away with torturing and killing foreign individuals by arbitrarily labeling them as "enemy combatants" and repeat this at every private and public forum at your disposal. (You can learn more about this case by watching a video interview with attorney Pardiss Kebriaei called "Al-Zahrani v. Rumsfeld: Murder at Guantánamo?" Of course, both the Department of Justice and most congressional representatives will want to ignore public letters of protest, unless they can be convinced that there is a groundswell of support for these sorts of investigations. So the work of those of us who want to bridge the gap between what is legal and what is just resides in maintaining and expanding legal and political pressure until we can no longer be ignored.
In 2006, Rear Admiral Harry Harris, the U.S. Navy Base Commander at Guantánamo, notoriously announced that the three men, who were never charged with any crime, had committed suicide as an excellent PR move in "an act of asymmetrical warfare waged against us," and that they had "no regard for human life, neither ours nor theirs." To paraphrase Tony Alessandrini, another writer who responded shortly after the deaths were reported: Until those living in this country can find a way to stop the government and the courts from committing and rationalizing torture and killings, and until we can turn popular feeling firmly towards supporting accountability for the grave abuses committed by the state, the admiral’s phrase should be applied to us: "They have no regard for human life."