In a major setback to the public's right to know "what their government is up to," a federal appeals court has ruled that the Pentagon can keep secret the identities of foreign soldiers trained at a controversial combat school at Fort Benning, Ga.
By a 2-1 margin, the U.S. Court of Appeals for the 9th Circuit overturned a lower court ruling that had ordered the Pentagon to release the names of soldiers and instructors at the Western Hemisphere Institute for Security Cooperation (WHINSEC), formerly known as the School of the Americas (SOA). Some graduates of the U.S. Army school have been implicated in torture, assassinations and overthrowing democratic governments.
What's at stake is the public’s ability to know if its tax dollars are funding the training of human rights abusers, as well as the viability of SOA Watch, a human rights organization that has documented hundreds of atrocities committed by the school's graduates.
The appeals court's Sept. 30 ruling stems from a 2011 Freedom of Information Act (FOIA) lawsuit brought by two SOA Watch members, Theresa Cameranesi and the late Judy Liteky. Their request for the graduates' names had been granted by federal district court Judge Phyllis Hamilton. It was overturned by Circuit Judges Sandra Ikuta and Andrew Kleinfeld.
However, Circuit Justice Paul Watford wrote a strongly worded dissenting opinion, affirming the lower court's decision to uphold the public's right to know "what their government is up to."
Watford stated, "Without knowing the actual names of those allowed to attend the Institute, the public has no way of independently verifying if students are properly vetted before enrolling at the Institute, or whether after graduating they engage in human rights abuses in their home countries."
Now, he said, "the public must simply take the government's word for it that the reform measures mandated by Congress have been effective. This fox-guarding-the-henhouse notion is, of course, completely antithetical to the FOIA's core purpose."
Congressman Jim McGovern (D-Mass.), who has tried repeatedly to cut the school's funding, told NCR that he was "very disappointed" by the ruling and that he found it "appalling that the U.S. government continues to oppose public access to the names of these students."
"Many people don't get how serious this court decision is," said Roy Bourgeois, a former Maryknoll priest who founded SOA Watch in 1990 after school graduates were linked to the murders of six Jesuit priests in El Salvador.
The majority ruling, written by Ikuta, concludes that the U.S. public's right to know pales beside the unwarranted invasion of privacy of the foreign soldiers and instructors, given the Pentagon contention that disclosure "could give rise to harassment, stigma, or violence."
The judge went on to say that the Pentagon "merely" had to establish a "potential for harassment."
In his dissenting opinion, Watford noted that the Pentagon had presented no evidence that any of the "60,000 individuals whose names have been publicly released has ever been the target of harassment or violence" based on their having attended WHINSEC or SOA.
Further, he wrote, there is no evidence as to why the Pentagon suddenly changed it policy in 2005 to refuse to release the names. "It would be one thing if the Department of Defense had informed us that its risk assessment changed in 2005 because a foreign student or instructor had been targeted for harassment or violence due to his affiliation with the Institute. That would make it easy to understand the Department's about-face."
According to Bourgeois, WHINSEC stopped releasing names in 2005 after SOA Watch found damaging information that WHINSEC had enrolled well-known human rights abusers. One of those was Salvadoran Col. Francisco del Cid Diaz, implicated in the 1983 Las Hojas massacre of civilians. WHINSEC enrolled him in 2003 in the Cadet Troop Leader Training course.
While Ikuta noted in her opinion that the State Department found "no evidence to verify the very serious charges" against del Cid Diaz, the atrocity was detailed in the widely publicized 1993 U.N. Truth Commission report. The commission found "substantial evidence" that a unit commanded by del Cid Diaz at Las Hojas shot and killed civilians at point-blank range in the forehead or behind the ear, after they were dragged from their homes, bound and beaten.
Ikuta also says the public has access to "information regarding the effectiveness of the Department of State's procedures for vetting prospective trainees … through the Board of Visitors' public reports."
The Board of Visitors was created by school supporters to keep Congress from closing the school after the Pentagon admitted the school had used manuals advocating torture and assassination. It includes members of the Senate and House Armed Services Committees, representatives from the Department of State, U.S. Southern Command, U.S. Northern Command, the U.S. Army Training and Doctrine Command, and six civilian members designated by the secretary of defense.
But Watford wrote that the board's annual reports, along with those of the Department of Defense, "are utterly useless" for determining if enrollees are properly vetted or have committed human rights abuses. Which is why, he said, the public needs the records, in order to "exercise its right to remain informed about the Army's operation of the Institute or assess how well the Departments of State and Defense are performing their statutory duties."
In addition to the State Department's claim that it could find no evidence against del Cid Diaz for the Las Hojas massacre, Bourgeois has another reason to be skeptical of its role in vetting school candidates.
Both the State and Defense Departments in the 1980s vetted and approved a select group of graduates to be entered into the school's Hall of Fame. Among those they chose for the honor were two former dictators, Bolivian Gen. Hugo Banzer and Honduran Gen. Policarpo Paz, along with Honduran Gen. Humberto Regalado Hernández, who was accused of giving protection to Colombian drug traffickers.
In his dissent, Watford cited the "checkered history" of the Army school in arguing why the public has a strong interest in disclosure of the names. It's a history, he said, the relevance of which the two-judge majority "simply ignores."
While the school first came under fire when 19 Salvadoran graduates were linked to the 1989 Jesuit massacre, "that incident was not an anomaly," Watford wrote.
"After the Army began releasing the names of former SOA students and instructors in 1994 as a result of FOIA requests, human rights activists linked the school's attendees to a host of notorious crimes," he wrote, "including the assassination of Archbishop Oscar Romero, the execution of four American churchwomen, and the massacre of hundreds of civilians in the village of El Mozote," along with the beheading of an American innkeeper by a Guatemalan colonel who had attended SOA just six months before. Watford also cited graduates like Salvadoran death-squad leader Roberto D'Aubuisson; Panamanian dictator and drug-trafficker Manuel Noriega; and Argentine "dirty war" dictators Roberto Viola and Leopoldo Galtieri.
In another argument against disclosure, Ikuta suggests that the public can rely on members of Congress who get the names of WHINSEC students and instructors in a classified format.
But San Francisco attorney Duffy Carolan, who represents the SOA Watch plaintiffs, said the public would have no way of knowing whether Congress is doing anything with the names. "Historically, Congress has relied on organizations like Amnesty International and SOA Watch to sift through government documents and investigate human rights violations. Congress doesn’t really do it or have the means to do it.
"Maybe the court thinks it’s giving some kind of assurance to the public that Congress will do it, but it's just the same old trust argument that courts have rejected. And it's why we have a Freedom of Information Act."
The government, she added, doesn’t want "these records released because SOA Watch has provided an astounding amount of public scrutiny over the school to the point that Congress nearly closed it down. The Pentagon doesn't want that again."
Carolan said there are ongoing discussions to decide the next legal step. One option is to petition the 9th Circuit to have the latest ruling reviewed by a larger panel of appeals court judges.
Bourgeois said the fight will go on.
"We've had to fight to get these names from the beginning," he said. "They want to hide behind a wall of secrecy because when you're involved in torture, disappearances and executions, the truth is going to cause you some serious problems. While WHINSEC claims to be transparent, without releasing the names, there is no transparency."
[Linda Cooper and James Hodge are the authors of Disturbing the Peace: The Story of Father Roy Bourgeois and the Movement to Close the School of the Americas.]