July 20, 2010
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,
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.
remainder: http://www.harpers.org/archive/2011/07/hbc-90008158
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