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NY Times, Nov. 28 2016
Lawsuit Aims to Hold 2 Contractors Accountable for C.I.A. Torture
By SHERI FINK and JAMES RISEN
Suleiman Abdullah Salim, a Tanzanian man and a former detainee by the
C.I.A., is a plaintiff in a lawsuit focusing on C.I.A. interrogations
now likened to torture. Credit Bryan Denton for The New York Times
Nearly 15 years after the United States adopted a program to interrogate
terrorism suspects using techniques now widely considered to be torture,
no one involved in helping craft it has been held legally accountable.
Even as President Obama acknowledged that the United States “tortured
some folks,” his administration declined to prosecute any government
officials.
But now, one lawsuit has gone further than any other in American courts
to fix blame. The suit, filed in October 2015 in Federal District Court
in Spokane, Wash., by two former detainees in C.I.A. secret prisons and
the representative of a third who died in custody, centers on two
contractors, psychologists who were hired by the agency to help devise
and run the program.
One of them, James E. Mitchell, has written a book to be released
Tuesday about his involvement in the program. In the book, he argues
that he acted with government permission and that he and Bruce Jessen,
the other psychologist and his co-defendant in the lawsuit, received
medals from the C.I.A.
Legal experts say the incoming administration of Donald J. Trump could
force the case’s dismissal on national security grounds. Deciding
whether to invoke the so-called state secrets privilege over evidence
requested in the lawsuit could represent the new president’s first
chance to weigh in on the issue of torture. Mr. Trump has endorsed the
effectiveness of torture and said he would bring back waterboarding,
though it is not clear now that he intends to do so.
Lawyers for Dr. Mitchell and Dr. Jessen have clashed with the Justice
Department over what classified evidence is needed to defend against the
suit’s allegations that the men “designed, implemented, and personally
administered an experimental torture program.”
Last month, despite United States government opposition, the court
approved the defendants’ request for oral depositions of John Rizzo, a
former C.I.A. acting general counsel, and José Rodriguez, the former
chief of the agency’s clandestine spy service who also headed the
C.I.A.’s Counterterrorism Center.
Dr. Mitchell was first publicly identified as one of the architects of
the C.I.A.’s “enhanced interrogation” program nearly a decade ago, and
has given some news media interviews, but is now providing a more
detailed account of his involvement. His book, “Enhanced Interrogation:
Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy
America” (Crown Forum), was written with Bill Harlow, a former C.I.A.
spokesman. It was reviewed by the agency before release. (The New York
Times obtained a copy of the book before its publication date.)
In the book, Dr. Mitchell alleges that harsh interrogation techniques he
devised and carried out, based on those he used as an Air Force trainer
in survival schools to prepare airmen if they became prisoners of war,
protected the detainees from even worse abuse by the C.I.A.
Dr. Mitchell wrote that he and Dr. Jessen sequestered prisoners in
closed boxes, forced them to hold painful positions for hours and
prevented them from sleeping for days. He also takes credit for
suggesting and implementing waterboarding — covering a detainee’s face
with a cloth and pouring water over it to simulate the sensation of
drowning — among other now-banned techniques. “Although they were
unpleasant, their use protected detainees from being subjected to
unproven and perhaps harsher techniques made up on the fly that could
have been much worse,” he wrote. C.I.A. officers, he added, “had already
decided to get rough.”
Mr. Obama declined to open a broad inquiry into the treatment of
terrorism suspects, saying as president-elect that the nation needed to
“look forward.” He did not rule out prosecuting those who went beyond
techniques authorized by the Justice Department, but no one has been
charged with those offenses under his watch. During the George W. Bush
administration, a C.I.A. contractor was convicted in the death of an
Afghan detainee at an American military base in Afghanistan.
Henry F. Schuelke, a Washington lawyer with the firm Blank Rome, who
represents Dr. Mitchell and Dr. Jessen, said that he believed his
clients “were left holding the bag” while C.I.A. officials involved in
the program have been protected from the lawsuit. “The government and
its officers, namely many of the C.I.A. officers, enjoy sovereign
immunity,” Mr. Schuelke said in an interview.
Mr. Schuelke and colleagues have argued in court that the senior United
States District Court judge, Justin L. Quackenbush, should dismiss the
case because, among other reasons, “sovereign immunity” extended to
their clients, who were acting on the government’s behalf. But the judge
denied the motion and the case has proceeded under the Alien Tort
Statute, which allows foreigners to sue in United States court for
violations of their human rights.
If the former detainees are successful, it would be the first time a
United States civilian court has held individuals accountable for their
role in developing counterterrorism policies after the Sept. 11, 2001,
attacks. “All of the other cases have been thrown out on procedural
grounds,” said Jonathan Hafetz, a professor at Seton Hall Law School.
“If this is successful, it could pave the way for other torture victims
to seek redress.” Still, some lawyers say it could be difficult for the
plaintiffs to prevail.
The case has proceeded in large part because the psychologists’ role in
the program has already been documented, particularly in the
declassified executive summary of a Senate Intelligence Committee
investigation of the interrogation program released in 2014. While the
Justice Department has fought to restrict the scope of sensitive
information that it has been asked to produce in the case, it has thus
far not asserted the state secrets privilege, a broad power to protect
national security that could effectively shut down the suit. That could
change, analysts say, under the Justice Department in the Trump
administration. Representatives for Mr. Trump did not reply to requests
for comment on the case, scheduled for trial in June 2017.
Lawyers for the detainees said they had no need for classified
information. “There are dramatically more details in the public record
about what the C.I.A. and the psychologists did,” said Steven Watt, a
lawyer with the American Civil Liberties Union. “Now, any attempt to
argue that torture is a state secret would be a transparent attempt to
evade accountability.”
But lawyers for the psychologists contend they require access to secret
information to prepare an adequate defense. In his book, Dr. Mitchell,
who had been identified years before the Senate Intelligence Committee
report and had formed a company that received $81 million for
counterterrorism after Sept. 11 (his personal percentage of profit from
the contract “was in the small single digits,” he wrote), nonetheless
criticizes Senate staff for allegedly leaking his name, which he said
made him a target of terrorist threats. He also says that the techniques
he used sometimes caused resistant detainees to cooperate in providing
useful intelligence, though the book offers little, if any, new evidence
that this is the case.
Dr. Mitchell says Democratic Senate staff “cherry-picked documents to
create a misleading narrative” from tens of thousands of pages of the
C.I.A.’s own documentation that the committee reviewed over several
years while compiling its report. The report concluded that the C.I.A.’s
use of harsh interrogation techniques was brutal, costly, ineffective at
gathering intelligence and “damaged the United States’ standing in the
world.” The C.I.A. did not provide comment on Dr. Mitchell’s book by the
time of this article’s publication.
In one instance, Dr. Mitchell describes his and Dr. Jessen’s experiences
with Gul Rahman, an Afghan citizen captured in November 2002 in
Peshawar. He was found dead, naked from the waist down on a bare
concrete floor in the freezing cold at a secret C.I.A. prison that
month, shackled and short-chained to a wall. A representative of Mr.
Rahman’s estate is a party to the lawsuit against the two psychologists.
Dr. Mitchell writes that he and Dr. Jessen raised concerns about Mr.
Rahman’s well-being before their departure from the site, just days
before his death. “To imply that his death was part of the program I was
involved with is simply false,” Dr. Mitchell writes.
But a January 2003 C.I.A. memorandum outlining an investigation into Mr.
Rahman’s death, released to the A.C.L.U. in late September, found that
Dr. Jessen interrogated Mr. Rahman after he was subjected to “48 hours
of sleep deprivation, auditory overload, total darkness, isolation, a
cold shower, and rough treatment.” (The document had previously been
released, but in a more redacted form without the psychologists’ names.)
During that interrogation, Mr. Rahman resisted answering questions and
“complained about the violation of his human rights.”
Dr. Jessen also said he “thought it was worth trying” a so-called rough
takedown, during which Mr. Rahman was forced out of his cell, secured
with Mylar tape after his clothes were cut off, covered with a hood,
slapped, punched and then dragged along a dirt floor, the memo said. Mr.
Rahman died of what an autopsy suggested was hypothermia.
The other two plaintiffs, Suleiman Abdullah Salim, a Tanzanian, and
Mohamed Ahmed Ben Soud, a Libyan, continue to suffer from psychological
problems related to their torture, The New York Times has reported.
The plaintiffs are seeking compensatory and punitive damages. “This case
shows that there are consequences for torturing people,” Mr. Watt of the
A.C.L.U. said, adding that it “should serve as a warning to anyone
thinking about bringing back torture.”
Charlie Savage and Matt Apuzzo contributed reporting.
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