U.S.
Lawsuit Aims to Hold 2 Contractors Accountable for C.I.A. Torture
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.
BRYAN DENTON FOR THE NEW YORK TIMES
By SHERI FINK and JAMES RISEN
November 27, 2016
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 cases 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 presidents 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
suits allegations that the men designed, implemented, and personally
administered an experimental torture program.
Interactive Feature | Lasting Scars Articles in this series examine the
American legacy of brutal interrogations.
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 agencys
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 detainees 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.
<img class="span-asset-img "
src="https://cdn1.nyt.com/images/2016/11/28/world/28mitchell-2/28mitchell-2-
jumbo.jpg" />
Gul Rahman, an Afghan captured in November 2002, was found dead in a secret
C.I.A. prison. A representative of his estate is a party to the lawsuit
against the two C.I.A. contractors.
HABIB RAHMAN, VIS ASSOCIATED PRESS
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 governments 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. Mitchells book by the time of this
articles publication.
<img class="span-asset-img "
src="https://cdn1.nyt.com/images/2016/11/28/world/28mitchell-3/28mitchell-3-
articleLarge.jpg" />
Mohamed Ahmed Ben Soud, a Libyan plaintiff, continues to suffer from
psychological problems related to his torture.
HOLLY PICKETT / THE AMERICAN CIVIL LIBERTIES UNION
In one instance, Dr. Mitchell describes his and Dr. Jessens 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. Rahmans estate is a party
to the lawsuit against the two psychologists.
Dr. Mitchell writes that he and Dr. Jessen raised concerns about Mr.
Rahmans 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.
Rahmans 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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modal-lightboxmodal-lightbox
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.
Bryan Denton for The New York Times
By SHERI FINK and JAMES RISEN
November 27, 2016
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 cases 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 presidents 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
suits allegations that the men designed, implemented, and personally
administered an experimental torture program.
http://www.nytimes.com/interactive/2016/10/08/world/100000004697079.embedded
.htmlhttp://www.nytimes.com/interactive/2016/10/08/world/100000004697079.emb
edded.html
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 agencys
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.)
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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 detainees 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.
modal-lightboxmodal-lightbox
Gul Rahman, an Afghan captured in November 2002, was found dead in a secret
C.I.A. prison. A representative of his estate is a party to the lawsuit
against the two C.I.A. contractors.
Habib Rahman, vis Associated Press
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 governments 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. Mitchells book by the time of this
articles publication.
modal-lightboxmodal-lightbox
Mohamed Ahmed Ben Soud, a Libyan plaintiff, continues to suffer from
psychological problems related to his torture.
Holly Pickett / The American Civil Liberties Union
In one instance, Dr. Mitchell describes his and Dr. Jessens 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. Rahmans estate is a party
to the lawsuit against the two psychologists.
Dr. Mitchell writes that he and Dr. Jessen raised concerns about Mr.
Rahmans 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.
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But a January 2003 C.I.A. memorandum outlining an investigation into Mr.
Rahmans 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.
