By William Fisher
The families of two prisoners who died at the U.S. Navy Base at Guantánamo Bay, Cuba, are asking a Federal court to reconsider its ruling dismissing their lawsuit, which seeks to hold federal officials and the U.S. government accountable for their sons’ torture, arbitrary detention, and ultimate deaths.
According to their lawyers, the Center for Constitutional Rights (CCR), the families’ request is based on newly discovered evidence from four soldiers who describe a cover-up by the authorities and say they were ordered not to speak out. The soldiers’ accounts were reported in Harper’s Magazine in January.
The Pentagon maintains that the two men, along with a third prisoner, committed suicide in their cells in 2006. But their lawyers say the soldiers’ first-hand accounts “raise serious questions about the actual cause and circumstances of the deaths.” They charge that “their accounts strongly suggest that the men died as the result of torture at a ‘black site’ – a secret prison – within Guantánamo.
In a statement directed to U.S. President Barack Obama and American judicial authorities, Talal Al-Zahrani, father of one of the men who died that night, said, “Mr. President, the killing of my son in the hands of his guards and under the supervision of the administration of the detention center is a serious and gruesome crime. It is against all human values and norms, and whoever covers up this gruesome crime or obstructs the criminal and judicial investigations is a co-conspirator with those who have committed the crime itself.”
“It is not unusual in any society to find crime and criminals, but it is a catastrophe when a democratic society that raises the banner of defending human rights stays silent in the face of such a crime. Mr. President, neither you nor your government stand to gain anything by covering up this crime, unless you believe in the achievements of former President Bush and his Secretary of Defense Rumsfeld, and wish to share in their legacy,” Al-Zahrani said.
He added, “I would like to tell you that the reason hatred against America is spreading all over the world is because you are disregarding people’s feelings and showing contempt and disrespect for the lives of others. Too often you let criminals -- from powerful politicians and decision makers to low-level perpetrators -- get away with serious crimes. All these people are doing is damaging your reputation and the values you stand for.”
The district court granted a request by the government and 24 federal officials, including former Secretary of Defense Donald Rumsfeld, to dismiss the families’ case. The CCR says the court therefore “accepted the defendants’ argument that national security factors should bar the constitutional claims on behalf of the deceased, and that the alleged torture of the men, even if ‘seriously criminal,’ was within the officials’ ‘scope of employment,’ thus barring claims asserted under the Alien Tort Statute (ATS).”
The court also dismissed claims under the Federal Tort Claims Act (FTCA) for breaches of the officials’ basic duty of care toward the deceased and for the emotional distress suffered by the families, ruling that Guantanamo is a “foreign country” for the purposes of the act and thus outside the scope of its protection. The dismissal effectively left the families and their sons with no remedy for the violations they asserted again U.S. officials.
The ATS gives district courts jurisdiction of any civil action by an alien, committed in violation of the law of nations or a treaty of the United States. It allows U.S. courts to hear human rights cases brought by foreign citizens for conduct committed outside the U.S. The FTCA permits private parties to sue the United States in a federal court for acts committed by persons acting on behalf of the U.S.
The families’ request for the court to reconsider its dismissal of their claims is based on the accounts of four soldiers stationed at the base the night the men died. Human rights lawyer Scott Horton reported in Harper’s Magazine in January that the soldiers’ eye-witness accounts, including that of a ranking Army officer who was on senior guard duty the night of the deaths, “strongly suggest that the men were taken to a secret ‘black site’ at Guantánamo nicknamed ‘Camp No’ that night, and died at that site or from events that transpired there.”
The CCR said the undisclosed facility is thought to have been used by the Central Intelligence Agency (CIA) or the Joint Special Operations Command of the Defense Department to hold and interrogate detainees at Guantánamo. The soldiers further describe a high-level cover-up they say was initiated by the authorities within hours of the men’s deaths. They say they were ordered by their superiors not to speak out.
Said CCR attorney Pardiss Kebriaei, “It took courage for these soldiers to come forward with information that the government had every intention of keeping secret, and the details that are emerging are disturbing to say the least. The families of these men should not be barred at the courthouse door without any further inquiry.”
A report prepared by the Seton Hall University School of Law concluded that the military’s investigation files “reveal major unanswered questions and information gaps in the official account of the deaths, including failures to review relevant available information and interview material witnesses.”
Six prisoners have died at the Guantanamo facility since it was opened in 2002. In June 2009 Muhammad Ahmad Abdallah Salih, a 31-year-old Yemeni man detained since 2002became the sixth person to die at the base.
CCR represents the families of Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, the two men who died at Guantánamo in 2006, along with a third detainee, Mani Al-Utaybi of Saudi Arabia.
At the time of their deaths, Al-Zahrani and Al-Salami had been detained for more than four years without charge. Al-Zahrani was 17 at the time of his arrest.
CCR has organized and coordinated more than 500 pro bono lawyers across the country to represent Guantanamo detainees, former detainees, and their families.