It’s the type of legal case that usually gets tossed out once the government claims national security is at stake.
But something surprising happened in a federal courtroom here last week — a judge ruled that a potentially embarrassing lawsuit against the CIA could go forward. And even more surprising, the U.S. Justice Department agreed to go along.
This isn’t to suggest the federal government is throwing in the towel in the suit filed by three alleged torture victims against two CIA psychologists. The government will continue to fight. But its approach to the case is different from similar suits in the past, and the shift can be traced in part to a landmark report on the CIA in 2014.
The report, partially released by the Senate Select Committee on Intelligence, exposed the dark depths of the U.S. rendition and torture programs overseas, including waterboarding, beatings, mind-bending experiments and rectal feedings intended to provoke reluctant detainees to talk. Committee Chairwoman Sen. Dianne Feinstein (D-Calif.) urged Americans not to let such history be “forgotten and grievous past mistakes to be repeated.”
History, for example, like Suleiman Abdullah’s. He is the lead plaintiff suing the psychologists.
The suit alleges that Abdullah, a Tanzanian fisherman abducted in 2003 by the CIA in Somalia, was beaten, hung by his arms, chained in stress positions for days, starved, deprived of sleep, and stuffed in a small box from time to time.
Another plaintiff is Mohammed Ahmed Ben Soud, a Libyan citizen. The suit alleges he too was abducted in 2003 and tortured in Afghanistan at two so-called black sites. In 2005, the CIA rendered him to Libya, where he was held until 2011, after the overthrow of the regime of Moammar Kadafi. Both he and Abdullah still suffer painful ailments from their imprisonment, their attorneys say.
Gul Rahman’s story was similar, except that he died in the CIA’s custody from hypothermia, according to court papers. His family says it has never been officially notified of his death, nor has his body been returned.
The two living plaintiffs and Rahman’s family are suing James Mitchell and Bruce Jessen, two former U.S. Air Force psychologists who contracted with the CIA to develop and oversee the agency’s detention, rendition and interrogation operations. The pair had previously been in charge of survival training at Fairchild Air Force Base, near Spokane, then later formed Mitchell, Jessen & Associates as a consulting firm.
The lawsuit, filed for the plaintiffs by the ACLU, seeks compensatory damages of more than $75,000, plus punitive damages and attorneys’ fees.
According to the Senate intelligence panel report, Mitchell was a believer in “learned helplessness,” a psychological stage at which individuals are thought to become passive and depressed in reaction to stressful or uncontrollable events. “He theorized that inducing such a state could encourage a detainee to cooperate and provide information,” the report states.
From there, the duo “developed the list of enhanced interrogation techniques and personally conducted interrogations of some of the CIA’s most significant detainees using those techniques. The contractors also evaluated whether the detainees’ psychological state allowed for continued use of the techniques, even for some detainees they themselves were interrogating or had interrogated.”
Among those Mitchell is reported to have used the techniques on was Khalid Shaikh Mohammed, self-proclaimed mastermind of the Sept. 11 attacks. The Senate report says he was waterboarded 183 times in one month.
Mitchell and Jessen claim they can’t be sued because they were government employees, and that the CIA is ultimately responsible for the work they did.
The federal judge’s ruling, for now, sets that argument aside. U.S. District Judge Justin Quackenbush issued his decision Friday after hearing two hours of arguments on whether to dismiss the torture lawsuit.
Quackenbush also ordered all sides to complete a plan for sharing secret documents, if necessary. That set the stage for the second surprise of the day — the defendants and government agreeing to go along.
“I think I’m optimistic we can reach an agreement” on how to handle sensitive documents, Justice Department attorney Andrew Warden told Quackenbush during the hearing. “We have been working proactively on a discovery plan.”
Quackenbush said the U.S. can renew its dismissal motion in the future, and there’s still that matter of an actual trial. But, for a limited victory, it was historic.
Rather than use national security to block the way, Warden indicated, the U.S was willing to work with the plaintiffs, whose claims are not likely provable without secret documents as evidence. Quackenbush’s subsequent ruling marked the first time a civil lawsuit filed by victims of “enhanced interrogation” has been allowed to continue.
“Every previous lawsuit has been shut down before this stage,” said ACLU attorney Dror Ladin, who will meet with government and defendants’ attorneys to devise a discovery and evidence-sharing process within 30 days.
The torture plaintiffs argue that Mitchell and Jessen got rich with an “experimental” program that harmed the victims and others using tactics that had little chance of succeeding. Experts say torture victims, when they do talk, will say anything and not necessarily the truth.
As the Senate torture report noted, “the CIA itself determined from its own experience with coercive interrogations that such techniques ‘do not produce intelligence,’ ‘will probably result in false answers,’ and had historically proven to be ineffective. Yet these conclusions were ignored.”
During the Mohammed interrogation, for example, a CIA deputy chief reported waterboarding “has proven ineffective,” but it continued anyway. Eventually, Mohammed began to talk. And though the CIA claimed he gave up crucial information, the Senate report found much of it to have been fabricated, unfounded or “not supported by internal CIA records.”
Among the documents Quackenbush said he hoped to see as the case progressed was the contract signed by Mitchell and Jessen with the CIA, from which their company earned $81 million. That will help him decide, the judge said, how much of a role the two men played not only in the development but the operation of the torture program.
Whether torture was inflicted on the plaintiffs didn’t seem to be at question Friday. Documents and testimony should settle that, Quackenbush indicated.
“Like my friend [Justice] Potter Stewart” once famously said about pornography, the judge observed, he might not be able to define torture, but he’d know it when he saw it.
Said the plaintiffs’ attorney Ladin, “I think we all know it when we see it — when prisoners are hung by their arms for days.”
Anderson is a special correspondent.