SPOKANE, Wash. -- A federal judge indicated Friday he will deny a request from two CIA-contracted psychologists to throw out a lawsuit filed on behalf of three victims of the agency’s now-defunct enhanced interrogation program.
“I don’t think I have any other choice,” said Senior Judge Justin L. Quackenbush of the Eastern District of Washington, indicating that he would allow the case to move forward despite objections from the psychologists' lawyers, who claimed their clients are immune from civil liability.
The decision was a landmark victory for the American Civil Liberties Union, the group representing Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, as well as the family of Gul Rahman, who died in CIA custody in 2002. The ACLU is seeking damages for their clients from the two psychologists, who they allege in their complaint “designed, implemented, and personally administered an experimental torture program for the [CIA]."
“This has never happened before,” Hina Shamsi, an ACLU lawyer on the case, told reporters outside the courtroom after the hearing. She and her team didn’t expect the judge to make a decision on whether to scrap the case so quickly and appeared genuinely surprised that he ruled in their favor.
“There have been so many cases brought by torture victims ... and not one of them has been able to go forward, for shameful reasons,” Shamsi said. “This is a very big deal for our clients.”
The three men represented by the ACLU were identified in the Senate’s 500-page executive summary of a 6,000-page report on the CIA’s “enhanced interrogation program” as being exposed to brutal interrogation methods that constitute torture. They were waterboarded, beaten, hung from metal rods, held in coffin-sized boxes, and deprived of light, food, and sleep.
When the executive summary was declassified in December 2014, much of the information needed to make a case against those involved in the interrogation program became public, making it harder for the government to argue a lawsuit would expose state secrets.
The Senate report refers to psychologists James Elmer Mitchell and John “Bruce” Jessen using pseudonyms, and describes their integral role in creating and executing an interrogation program that taught prisoners “learned helplessness” by exposing them to uncontrollable pain. The duo’s company received $81 million from the CIA for the work on the interrogation program.
Spokane, located in the northeastern corner of a state better known for producing legal marijuana than CIA contractors, is an unusual site for a major national security court case. But it’s where Mitchell and Jessen, who both taught U.S. soldiers survival, evasion, resistance and escape techniques at the nearby Fairchild Air Force Base, set up shop when they contracted with the intelligence agency.
About 20 people filled the courtroom Friday morning, although that number will likely climb if the case goes to trial, where Mitchell and Jessen, as well as Salim and Ben Soud, could testify.
Mitchell and Jessen’s lawyers are presenting a multi-faceted argument that their clients are immune to legal punishment. In part, they argued, the enhanced interrogation program was a “political decision” made by the executive branch during a time of war, and is therefore not subject to judicial review. (Quackenbush cited former President Harry Truman’s decision to use nuclear weapons against Japan in World War II as an example of a political decision not subject to judicial review.)
““Nowhere in the AUMF does it say, ‘You may torture prisoners. Go forth and torture prisoners.'"”
The ACLU refuted that claim, noting that former President George W. Bush was kept in the dark about the methods used in the CIA’s interrogation program for several years, and that the 2001 Authorization for Use of Military Force that declared the U.S. to be at war did not provide cover for the methods used in the interrogation program.
“Nowhere in the AUMF does it say, ‘You may torture prisoners. Go forth and torture prisoners,’” said Dror Ladin, an ACLU attorney on the case.
Mitchell and Jessen’s lawyers have also argued in court filings that it is nonsensical to prosecute the two CIA contractors, when the CIA itself has been granted immunity. Ladin disputed that argument, saying it's still possible to bring cases against CIA employees.
Although President Barack Obama outlawed the use of torture early in his administration, he has declined to prosecute individuals responsible for creating and implementing the torture program operated by the CIA between 2002 and 2007, setting a precedent of immunity for those involved.
The U.S. government has blocked past efforts by the ACLU to sue individuals and entities for actions related to CIA torture by arguing that the lawsuits risked exposing state secrets. Judges dismissed those prior cases, ruling in a way that Ladin described Friday as “overly deferential” to the government.
Quackenbush, a veteran judge with 36 years of experience on his current bunch, was not deferential to the government on Friday.
During a back-and-forth discussion with Justice Department attorney Andrew Warden over how to deal with classified evidence, Warden suggested the government may invoke its state secrets privilege over the admission of some documents related to the torture program.
“I’ll make that determination,” Quackenbush responded, reminding the courtroom he has final say in what evidence can be used.
The judge ordered both parties to present a plan for discovery -- the exchange of evidence between both sides before trial -- within 30 days. The ACLU team has said it can litigate its entire case on public records, due largely to the declassification of the Senate torture report. But the defense lawyers for Mitchell and Jessen say they’ll have to undergo a lengthy process of getting approval to use classified documents to prove that their clients shouldn’t be held responsible for what happened under the CIA’s program.
If the judge rules that Mitchell and Jessen are not immune as former CIA contractors, their lawyers appear prepared to argue that the two men did not help create the now infamous torture program, but simply offered interrogation techniques to the CIA, which had final say in whether or not to adopt those techniques.
While there is no evident dispute of the fact that the CIA made the final determinations in the use of interrogation techniques, the Senate torture report describes Mitchell and Jessen advising the agency on which methods to apply to certain detainees, and personally waterboarding some of the prisoners. Mitchell has admitted in an interview to waterboarding alleged 9/11 conspirator Khalid Sheikh Mohammed. Jessen personally examined Rahman, the man who died in a CIA black site, and recommended which techniques to use to “break” his will, according to the Senate report.
Mitchell has a forthcoming book on his experiences working for the CIA, entitled, Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying To Destroy America.
The promotional blurb for the book boasts of Mitchell’s instrumental role in the CIA program at the heart of the lawsuit:
"The creator of the CIA's controversial Enhanced Interrogation Program provides a dramatic firsthand account of the design, implementation, flaws and aftermath of the program, including personally interrogating 9/11 mastermind Khalid Sheikh Mohammed and learning from America's enemies what we need to know to win the continuing struggle against global jihad."