Court Closes Door to Families of Wrongfully Detained Men Who Died at Guantánamo

From Center for Constitutional Rights, a press release relating to a new low in the attitude of the Obama administration and the federal courts, who have made a point of blocking judicial remedies for those tortured, and now even those murdered, by the U.S. in the ongoing "war against terror." The government's claims of "national security" are quite clearly meant to cover war crimes and other crimes against humanity.

The press release:

September 29, 2010 Washington and New York – Today, the United States District Court for the District of Columbia affirmed its decision to dismiss Al-Zahrani v. Rumsfeld, a civil lawsuit brought by the Center for Constitutional Rights (CCR) and co-counsel concerning the deaths of three Guantánamo prisoners in June 2006, despite newly-available evidence from soldiers stationed at the base at the time of the deaths that strongly suggest the men were killed at a black site at Guantánamo and a government cover-up of the true cause and circumstances of the deaths. The government reported the deaths as suicides.

“No one can compensate me for the loss of my son; no one can bring him back to me,” said Talal Al-Zahrani, father of Yasser Al-Zahrani. “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.”

The case, filed on behalf of the families of two of the deceased, Yasser Al-Zahrani of Saudi Arabia and Salah Ali Abdullah Ahmed Al-Salami of Yemen, charged the government and 24 federal officials with responsibility for the men’s abuse, wrongful detention and ultimate deaths. Earlier this year, the court granted the defendants’ motion to dismiss the case, holding that national security considerations prevented the court from hearing the families’ claims. Following the dismissal, the families filed a motion for reconsideration on the basis of the evidence from the soldiers, as reported by Scott Horton in Harper’s Magazine in January 2010, arguing that the new facts compelled the court to reopen the case.

While noting that “‘it is, as plaintiffs argue, ‘disturb[ing]’ that defendants allegedly ‘fought to keep secret virtually all information concerning the cause and circumstances of Al-Zahrani and Al-Salami’s deaths’ and that ‘details of an elaborate, high-level cover-up of likely homicide at a ‘black site’ at Guantanamo’ are now emerging,’” the court’s decision today held that national security considerations still bar it from considering the families’ claims, and that the defendants’ alleged involvement in the murder of Al-Zahrani and Al-Salami was still within the scope of their employment.

“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,” said CCR Attorney Pardiss Kebriaei, lead counsel in the case. “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.”

The suit was brought by CCR and co-counsel William Goodman of Goodman & Hurwitz, P.C. and the International Human Rights Law Clinic (IHRLC) at the Washington College of Law. The decision, the complaint, the government briefs and other court documents, as well as video of Mr. Talal Zahrani addressing the U.S. government, courts and people regarding his son’s death can be found on CCR’s legal case page.

This appears to be the heart of the court's decision (PDF — bold emphasis added):

Specifically, plaintiffs maintain that “unspecified national security concerns” should not be allowed to trump other factors in this case without question, given the government’s alleged efforts to keep the circumstances of Al-Zahrani and Al-Salami’s deaths secret and the possibility of a homicide at a “black site.” (Id. at 10.) Plaintiffs allege that the new evidence compels the creation of a Bivens remedy, or at least additional discovery geared toward uncovering sufficient evidence to allow the Court to conduct a special factors analysis….

Relying on the Supreme Court’s post-Bivens special factor analysis in Sanchez-Espinoza, the D.C. Circuit “ha[d] no doubt that . . . considerations of institutional competence preclude judicial creation of damage remedies” where federal defendants are sued by nonresident aliens asserting their constitutional rights. Id. There, plaintiffs accused defendants of “acting in concert and conspiracy with the other defendants and others unknown, [and] authoriz[ing], financ[ing], train[ing], direct[ing] and knowingly provid[ing] substantial assistance for the performance of activities which terrorize and otherwise injure the civilian population of the Republic of Nicaragua.” Id. at 205. The assistance allegedly provided by the United States “resulted in summary execution, murder, abduction, torture, rape, wounding, and the destruction of private property and public facilities.” Id. The extreme nature of these allegations notwithstanding, the Court held that “the special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad.” Id. at 209. The Court concluded that the “foreign affairs implications” of suits like that in Sanchez-Espinoza “cannot be ignored,” because of “their ability to produce . . . ‘embarrassment of our government abroad’ through ‘multifarious pronouncements by various departments on one question.’” Id. (quoting Baker v. Carr, 369 U.S. 186, 226 (1962)).

Nearly twenty-five years later, in Rasul II, the D.C. Circuit, invoking Sanchez-Espinoza, affirmed the dismissal of claims under the Fifth and Eighth Amendments brought by former detainees at the military facility in Guantanamo Bay. Although it found that plaintiffs had failed to state a Bivens claim because defendants were entitled to qualified immunity, Rasul II, 563 F.3d at 532, it also identified an alternative ground for dismissing plaintiffs’ Bivens claims—that “special factors” counseled against doing so. Id. at 532 n.5. The Court found that “[t]he danger of obstructing U.S. national security policy is one such factor” and that there was “no basis” for distinguishing the Rasul plaintiffs’ claims from the claims in Sanchez-Espinoza….

The Court finds that the new evidence and allegations4 presented by plaintiffs do not change the application of Rasul II to this case nor do they compel reconsideration of the Court’s dismissal of plaintiffs’ constitutional claims….

While it is, as plaintiffs argue, “disturb[ing]” that defendants allegedly “fought to keep secret virtually all information concerning the cause and circumstances of Al-Zahrani and Al-Salami’s deaths” and that “details of an elaborate, high-level cover-up of likely homicide at a ‘black site’ at Guantanamo” are now emerging (id. at 10), these claims are comparable to those in Sanchez-Espinoza, where it was alleged that the United States had violated fundamental human rights when it allegedly sponsored terrorist raids in Nicaragua that resulted in the “execution, murder, abduction, torture, rape [and] wounding” of “innocent Nicaraguan civilians.” 770 F.2d at 205. And, they are comparable to allegations that U.S. officials threatened, tortured, and beat detainees at Guantanamo Bay. Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 27, 29 (D.D.C. 2006). Moreover, even if every allegation of “shocking conduct” in plaintiffs’ proposed amended complaint and the Harper’s Magazine article is true (Pls.’ Mot. at 14), the highly disturbing nature of allegations in a complaint cannot be a sufficient basis in law for the creation of a Bivens remedy where special factors counsel hesitation. The question before the Court is not whether homicide “exceeds the bounds of permissible official conduct in the treatment of detainees in U.S. custody and demands accountability” or whether the families of Al-Zahrani and Al-Salami deserve a remedy. (Id. at 13-14.) Rather, the question is “who should decide whether such a remedy should be provided.” Bush, 462 U.S. at 380; see also Wilson v. Libby, 535 F.3d 697, 705, 709 (D.C. Cir. 2008). The D.C. Circuit unequivocally answered that question when it found that courts “must leave to Congress the judgment whether a damage remedy should exist” in cases involving national security and foreign policy concerns

The court bows to the government’s claims of “national security.” It’s outrageous, and they are quite blatant in their claims that the worst of crimes are not to be addressed by the courts if “national security” is invoked. As commenter phred wrote at the Emptywheel blog:

So Article III totally abdicates their authority to a hopelessly dysfunctional Article I, leaving all of us at the mercy of a tyrannical Article II.

What happened to checks and balances?

And to paraphrase bmaz from awhile back… When you are comparing legality to our conduct in Nicaragua, you’ve already lost the argument.

In the Emptywheel article on this, Marcy Wheeler notes, "here’s one of Scott Horton’s articles on this to remind you of the background and the new evidence the plaintiffs submitted."