No Comment — July 20, 2011, 10:50 am

The DOJ’s “Gitmo Suicides” Slam

In Al-Zahrani v. Rodriguez, relatives of two of the three Guantánamo prisoners who died under disputed circumstances on June 10, 2006 are seeking damages from Donald Rumsfeld and 23 other named government officials, most of whom are military officers. As I’ve noted previously, Judge Ellen Huvelle dismissed the case on technical grounds, finding that the right to file such lawsuits had been cut off by the Military Commissions Act of 2006. The plaintiffs sought to have the decision reviewed following the publication of “The Guantánamo ‘Suicides’: A Camp Delta sergeant blows the whistle” in the January 2010 issue of Harper’s Magazine. However, the court noted that its decision had turned on a simple question that had little to do with the underlying circumstances of the prisoners’ deaths — namely whether “the individually named defendants were acting within the scope of their employment.” Judge Huvelle concluded that nothing in the Harper’s article led to a different conclusion, and declined to alter the original decision.

Now, on appeal, the Justice Department has attacked the article, writing, “The hearsay accounts in the article of van movements, second-hand reports, baseless speculation about a secret ‘Camp No,’ and frenzied reactions at Guantanamo in reaction to the deaths hardly amount to compelling evidence warranting reconsideration of the district court’s dismissal of plaintiffs’ claims.” It even casts doubt on whether the individuals who furnished the narrative — Staff Sergeant Joe Hickman, Specialist Tony Davila, Specialist Christopher Penvose, Specialist David Carroll — were actually present, saying they were “allegedly present.”

The Justice Department’s brief goes on to say, “The Department of Defense and the Department of Justice both took the allegations in the article seriously, investigated the matter throughly, [sic] and found no evidence of any wrongdoing.”

The major issues in the litigation have little to do with what happened during the evening of June 10, 2006. Rather, the case has continually turned on whether Congress intended to preclude federal courts from hearing suits like this one, and whether the government officials who were sued were acting in their official capacities at Gitmo. Under the jurisprudence of the District of Columbia Circuit, the Justice Department is on firm ground on these points. But the DoJ’s criticism of the article raises eyebrows in several regards.

The guards on duty that evening furnished first-person accounts of what they saw and did within the formal scope of their own duties as guards — monitoring the movement of persons in and out of Camp Delta. Their evidence strongly contradicts the official narrative about what happened that evening–but it does not definitively establish how or where the three prisoners died. The guards also discovered Camp No in the course of those duties and observed the movement of persons and vehicles into and out of the facility. None of this is “baseless speculation,” as the Justice Department account suggests. The fact that the Justice Department seems unable even to confirm that the guards were present that evening reflects poorly on its investigation (an investigation that is reviewed and critiqued in some detail in the article itself).

It is ironic that after criticizing the plaintiffs for relying on press clippings without further direct substantiation, the Justice Department proceeds to do the same thing with respect to its own investigation, citing only an AP wire story that in turn quotes my Harper’s article for support. But based on what we know about this investigation, the tactic is easy to understand. Had the Justice Department furnished an affidavit or given a direct account of what its investigation entailed, it could be held to account for any false or misleading statements. By citing and quoting press accounts, it avoids this. It also reveals the Justice Department’s overarching objective in the lawsuit: to avoid at all costs having the case turn on what actually happened to the three prisoners that evening. The families of the deceased may ultimately learn the details of what happened that fateful night, but they are unlikely to learn anything of substance courtesy of a federal court — at least not while Congress and the D.C. Court of Appeals are determined to close the doors of justice in their faces.

Share
Single Page

More from Scott Horton:

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

No Comment March 28, 2014, 12:32 pm

Scott Horton Debates John Rizzo on Democracy Now!

On CIA secrecy, torture, and war-making powers

Get access to 164 years of
Harper’s for only $39.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2014

The End of Retirement

= Subscribers only.
Sign in here.
Subscribe here.

The Octopus and Its Grandchildren

= Subscribers only.
Sign in here.
Subscribe here.

Francis and the Nuns

= Subscribers only.
Sign in here.
Subscribe here.

Return of the Strongman

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
“Evidence of a chill was plain. People in Hailey spoke to me about Bergdahl in low voices, as if about a death.”
Fox & Friends, July 6, 2014
Article
The Seductive Catastrophe·

= Subscribers only.
Sign in here.
Subscribe here.

“The world’s leaders were moved by a populace fused into a forward phalanx, were shaken by a tidal wave of militancy jubilantly united.”
Photograph courtesy Mary Evans Picture Library
Post
The Glitch in the Video-Game Graveyard·

= Subscribers only.
Sign in here.
Subscribe here.

“From the nerd squabbles of Internet discussion threads rose an urban legend that culminated in a film that hinges on digging through my town’s trash.”
Illustration (detail) by Timothy Taranto
Article
What the Camera Saw·

= Subscribers only.
Sign in here.
Subscribe here.

“They shot him behind the left ear, and he fell.”
Article
Bounty·

= Subscribers only.
Sign in here.
Subscribe here.

“If I’d been one of the unprepared, I’d be desperate, too.”
Illustration (detail) by Simon Pemberton

Rolls of toilet paper Chicago’s city government has produced this year from recycled City Hall wastepaper:

19,000

Two thirds of U.S. teenagers experience uncontrollable rage.

Russia lost, then regained, contact with a satellite carrying five geckos sent to copulate in zero gravity.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

In Praise of Idleness

By

I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today