Torture Case Heads to Trial Over CIA Interrogation MethodsPamela MacLean
Two U.S. psychologists must face claims by terrorism suspects
Judge refuses to make early finding on contractors’ liability
Two U.S. psychologists who helped design an overseas CIA interrogation program failed to persuade a judge to derail a trial over claims they’re responsible for the alleged torture of three terrorism suspects.
The case is over abuses in the aftermath of the Sept. 11 attacks at secret “black-site” facilities that operated under President George W. Bush. The lawsuit followed the 2014 release of a congressional report on Central Intelligence Agency interrogation techniques that for the first time published the names of the three prisoners and described what they had been through.
If the detainees win the trial, it may encourage other prisoners to pursue claims they were tortured in the U.S. war on terrorism, according to Dror Ladin, a lawyer for the plaintiffs with the American Civil Liberties Union. He’s making a novel use of the 1789 Alien Tort Claims Act to fix blame on U.S. citizens for human-rights violations committed abroad, unlike previous cases brought against foreigners.
U.S. District Judge Justin Quackenbush in Spokane, Washington, refused Friday to give the former detainees an early victory on their request that he find the liability of the contractor-psychologists is already proven. Instead, all claims will be presented to a jury in September. The judge said he’ll issue a written ruling later and urged both sides to try to reach a settlement.
Saying he’s aware the contractors “may feel strongly unfairly characterized as torturers,” the judge said he won’t allow a trial to become a political spectacle.
“It is not a question of, ‘Did the Bush administration do wrong to detainees following 9/11?” he said. It’s about whether “these plaintiffs were subjected to torture.”
The two psychologists, James Elmer Mitchell and John “Bruce” Jessen, face claims they aided and abetted torture, as well as allegations of war crimes and human experimentation.
They have denied wrongdoing. The CIA isn’t a defendant in the case, but the government is covering the contractors’ legal expenses.
“The defendants once again argued that our clients’ case should not be heard by the courts, and we’re very pleased that the judge appears inclined to reject that argument,” Ladin said Friday in a statement.
Mitchell and Jessen lost an earlier bid to get the case thrown out on grounds that as contractors who acted properly as agents of the government, they were immune from liability.
They were also denied an opportunity to question CIA officials to show they were only following orders. Quackenbush ruled in May, at the urging of the Trump administration, that disclosure of the information they sought might compromise national security. The judge said there were enough publicly known details about the events in question for the case to proceed.
Hypothermia in Captivity
The suit was brought by the ACLU on behalf of two detainees who were later released and the estate of a third, who died as a result of hypothermia during his captivity at an overseas CIA site known as COBALT.
They accused Mitchell and Jessen of creating enhanced interrogation techniques including shutting the men in coffin-like boxes, striping them naked except for a diaper while they were left hanging by their arms, prolonged sleep deprivation and exposure to continuous loud music, according to court papers.
Records in the case show that the two psychologists and the company they formed were paid $81 million by the CIA. In 2002, the two personally interrogated a so-called high-value prisoner, Abu Zubaydah, using their techniques, including waterboarding. The psychologists’ methods were then standardized by the CIA throughout the secret detainee holding facilities, according to the plaintiffs.
The judge said Friday said he has “serious concerns” about whether there’s enough evidence that the psychologists had knowledge of wrongdoing with regard to the two prisoner plaintiffs who survived because Jessen and Mitchell weren’t directly involved in their mistreatment.
They allegedly did play a part in the interrogation of the detainee who died, Gul Rahman,
who was in Islamabad for medical care in 2002 when he was captured and taken to a prison in Afghanistan.
Rahman was the subject of a pointed exchange Friday between a defense lawyer and the judge.
“There was no question he was tortured,” Quackenbush said. “He was left naked in freezing temperature for long periods and he froze to death.”
“I am not admitting he was tortured,” attorney Brian Paszamant responded.
“Maybe that’s why we have juries,” the judge said.
A 2014 report by the U.S. Senate Select Committee on Intelligence detailed the history of the program developed by Mitchell and Jessen and determined that their techniques produced no usable intelligence. They’ve asked Quackenbush to keep that report out of the trial, while Ladin contends there’s enough public information for the detainees to prevail even without the report.
The case is Salim v. Mitchell, 15-cv-00286, U.S. District Court, Eastern District of Washington (Spokane).