DC Court: National Security Requires Dismissal of Suit Brought by Families of Men “Suicided” at Gitmo

Given that our President now holds that he has the authority to assassinate US Citizens with no due process–and he doesn’t have to explain that authority to any  court–it should be no surprise that the DC District Court has upheld its earlier decision dismissing the suit of a filed by the families of a bunch of men “suicided” at Gitmo. (I’m already 3 hours into my 15 hour transit from Holland to Holland, so I’m going to just quote from CCR’s press release; here’s one of Scott Horton’s articles on this to remind you of the background and the new evidence the plaintiffs submitted.)

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.

Obama, of course, would say that he had to support this cover up to protect the spooks in the field.

But consider the change we’ve made? The last Administration conducted cover-ups by claiming that it was in the job description of top employees to out CIA spies. Now, the President conducts cover-ups in the name of protecting CIA spies by holding that murder is within the job description of spooks and soldiers. Hope! Change!

(Thanks for all the advice on Scotch the other night–I hope to put that advice to good use.)

  1. phred says:

    And Mary would say that Obama supports the cover up to protect war criminals in the field.

    (Sorry Mary for putting words in your mouth, but the words coming out of mine are not fit to type. I’ll give you a hint though, they aren’t “vote for Democrats”)

    Have a great trip EW. Maybe I should take up drinking scotch — in vast quantities.

  2. JasonLeopold says:

    I’ve only read the press release thus far, but this statement from the court, as it appears in the press release, is explosive:

    ‘details of an elaborate, high-level cover-up of likely homicide at a ‘black site’ at Guantanamo’ are now emerging,’”

  3. nomolos says:

    Don’t you ever stop working? Jeeze you will not have any time to drink.

    It is sad that this president seems to hold the constitution in even lower regard than did the previous occupant of the oval office.

  4. Jeff Kaye says:

    This appears to be the heart of the 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.

    • phred says:

      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.

      [emphasis mine]

      That is just shocking.

      Ummm, let me guess, the answer to the question in italics above: The Courts?

      Nope! Congress. Thanks for playing.

      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.

      • Jeff Kaye says:

        It points out, too, that the failure to get accountability for earlier state crimes, e.g., Nicaragua, has set the stage for the sick drama we are witnessing today. The failure to address these issues today will lead to even worse abuses in the future.

        • phred says:

          The tragedy is that they can spell that out, and even go so far as to concede the point of the plaintiffs, and yet rather than coming to the conclusion that the time has come to revisit old mistakes, they are content to wash their hands of it and walk away.

          They are despicable and should face impeachment for refusing to uphold their constitutional oaths of office.

    • b2020 says:

      “the worst of crimes are not to be addressed by the courts if “national security” is invoked”

      The rule of law has been replaced by the primacy of national security. Individuals of Mass Destruction (IMD’s) have to be considered Too Big To Be Free, and as such are guilty until proven innocent, and dangerous until they can prove that they have not be radicalized by their schutzhaft.

      We are now all in the protective custody of an executive charged to keep us safe from ourselves. Knowledge Is Detention. Competence Is Threat. Welcome to the National Information State.



  5. phred says:

    And just because I would like to rub their noses in it, here are the oaths of office taken by members of the federal judiciary (per Wikipedia):

    In the United States, federal judges are required to take not just one, but two oaths. The first oath is this:[38]

    I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.

    The second oath that federal judges must take is this; it is the same oath that members of Congress take:[37]

    I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

  6. orionATL says:

    like jason leopold @ 3

    i thought the phrase he highlighted was a key phrase in the court’s decision,

    but i doubt it will prove “explosive” within our torture-tolerant contemporary culture (overseas might be another matter altogether).

    this is what courts sometimes do to “render” (and i do mean “render”) justice:

    they protect the judiaciry by never daring to exercise the court’s full authority,
    (thereby encouraging executive branch injustice/criminality to proceed without fear of consequence.)

    while salving their consciences and giving a consolation prize to those harmed by executive misconduct by including statements like the one j.l. highlighted @3.

    the families can take solice from the court’s having said what the families already knew – that their sons were murdered by american agents

    and those murders were covered up.

      • fatster says:

        Thnx so much and I’m sure bmaz will provide a spot-on tribute to Walker, a great judge. It is more essential now than ever that we get Goodwin Liu confirmed. Fingers crossed, etc.

  7. pdaly says:

    Well, there’s no statue of limitations on murder, so here’s hoping to the issue being revisited some time soon–or has jeopardy somehow attached before the suit got off the ground?

  8. alinaustex says:

    Can this ruling be apppealed by the families?

    How does this further our “national security ” if we are proving to the world in general and the Salafist & Wahabees in particular that we are abusing & killing hapless Moslems in our custody ?

    Where is Congress in this cover up of murder by our Armed Forces ?

    And President Obama- hey just .. ” Meet the new boss , same as the old boss”

  9. DWBartoo says:

    It may no longer be suggested that the courts do not know what is going on.

    The courts know, in appalling and disgusting detail, exactly and precisely, what is going on … and refuse, in the most cowardly and craven manner possible, to do their Constitutionally mandated jobs, refusing to accept the fact that it is indeed their job, specifically to “check” the excesses of the Executive, that the courts “pass” this clearly delineated responsibility “off” to Congress suggests that the are NO effective “balances” or “checks” being exercised at all.

    When do we reach the point where all three “branches” are so complicit in high crimes, all of which, individually and separately, are nothing less than treason, indeed high treason most foul, that “our” government has NO legitimacy at all? Where, in fact, “our” government is nothing but a criminal enterprise, whose primary “tools” are murder, rape, and torture?

    At this point one wonders who, if any, among and of “our” governmental “elites”, those at the very “top”, in Congress, in the Judiciary, and in the Executive “branches” is not complicit or “involved”.


      • DWBartoo says:

        The rule of law is … dead.

        “Looking forward” the BIG question is: Who really cares?

        Again, one notes the roaring silence from the legal profession as a whole.

        Does the “profession” not know?

        Or, does “it” not care?

        There may, possibly, be those who wonder why the “profession”, far more than those not “in” of “of” the “profession” should receive the attention I consistently “pile” upon “it”?

        Simply put, if the “rule of law” does not exist at the “top”, who, in what passes for “being in their right mind”, may pretend that the “rule of law’ exits in the “middle” or the “bottom”?

        If “pragmatic expediency” passes easy “muster” at the top, then how, in “deference” to the “business” of “justice”, may it be assumed that a similar expediency does not permeate all of the system?

        Bringing to mind bmaz’s discussion of federal prosecutorial “misconduct”, and the fact that if any of the prosecutors were found to have engaged in such misconduct and were reprimanded for such conduct, that the American people may not be informed or told about “findings” because to do so would offend the “privacy” protections of the prosecutors.

        A fish rots from the head … yet, by the time that occurs, the whole fish has already been quite dead … for a “while”.

        One notes that even the NY Times has, just today, noticed some wee problems with “state secrets”.

        (The Times, in its old, printed on paper form, makes an excellent “wrapper” for dead fish, by the way …)


  10. tjbs says:

    We have let the servant, the military, become the master with the CIA as head and brains.

    They, the unelected , are an ongoing criminal conspiracy, murdering at will.

    Rumored to be involved in big drug deals even the murder, in broad daylight, of a President who dared oppose their bloodlust.

    As to say who dares to challenge us next?

    Scholars who study the fail of the US empire will note that the head of the CIA became president,his father admired the Germans, his kids out of 3 million Americans by luck became two Governors and the dim bulb became president. Another amazing coincidence is the 9-11 aattacks occured on his watch.

    This present president went to CIA headquarters, after being sworn in twice, to calm any fears of criminal prosecution.Now he’s delivering for them not US.

    Where do we turn around and go back.

  11. b2020 says:

    This decision should be another hint to those who believe they can live with lack of electoral success and congressional oversight because “the courts will uphold the constitution”.

    Your judiciary is rotten to the core, all the way up to SCOTUS, which should have been obvious since the hackery of “Bush vs. Gore”. If they consider it their responsibility to “fix” anything, it is “fixing” The People.

  12. bamage says:

    Marcy, you asked me a question about a comment I dropped in the Scotch thread, and I wasn’t around to answer it. Anyway, try the Dalwhinnie, it’s a great “starter” Scotch. As far as the “add water to taste” bit you rec’d plenty of advice on that, so I’ll just share w/ you a bit of honestly earned wisdom I’ve acquired.

    There comes a point in every real Scotch drinker’s evening when they take a sip and think to themselves, “Oh, wow! This TASTES really, really GOOD!” When you reach that point – take care. You may need lots of straight H20 the next morning.

    Take care and have fun!

    • bobschacht says:

      Well, I don’t like being a party pooper, but I hope EW doesn’t get too fond of Scotch. EW’s ability to focus like a laser beam is one of her best attributes, and I’d hate to see that ability damaged by alcohol, even if dressed up in the form of good Scotch.

      Bob in AZ

        • DWBartoo says:

          I would guess, of all the things in the world to worry about, that EW’s perspective and judgment, in all things, are likely not among them.

          (Call it more than a guess, more than intuition … call it a conviction.)


  13. TheOracle says:

    We know that the top criminal and treasonous officials in the Bush/Cheney administration outed covert CIA agent Valerie Plame Wilson in 2003, but these were top public Republican officials.

    With so much outsourcing of formerly public jobs to for-profit private individuals and private contractor companies, we probably will never know if actual public members of our military or intelligence agencies tortured these detainees to death at Gitmo, or was it some of the private mercenaries responsible, whether in the shadow, privatized military or shadow, privatized intelligence area.

    This is what gets me about this federal judge’s ruling. Who is this federal judge really protecting? Federal judges have to swear an oath to protect and defend the U.S. Constitution, just like I did when I joined the U.S. military years ago, but I don’t see how letting this murder case proceed is a threat to national security.

    On the other hand, protecting for-profit contractors from facing the consequences for any crimes they may have committed while supposedly “serving” our nation seems to be Inside the Beltway policy nowadays, no matter who is in the White House, no matter who is in charge at the DOJ. I doubt if many, if any, of these private contractors swear an oath to uphold and defend our U.S. Constitution when hired. I guess that lets them off the hook. There’s no accountability even when these for-profit guys actually do threaten our national security through their criminal, brutal, torturous actions.