When psychologists James Mitchell and John "Bruce" Jessen were hired by the CIA to design and help carry out harsh interrogation techniques on suspected terrorists after 9/11, they obviously became agents of the government. Or so argued the men's attorney, who recently told a federal judge that, as agents of the government, Mitchell and Jessen cannot be sued for their actions.
Not so, says the family of an elderly Afghan farmer who died in 2002 after two weeks in CIA custody. The family has been joined in a lawsuit by two other former CIA detainees who say the interrogation techniques Mitchell and Jessen taught and promoted at the spy agency amount to war crimes.
This key question — whether the former Air Force psychologists can be sued — is at the heart of the case, which a federal judge has ruled can proceed. The first lawsuit alleging torture by the CIA, it comes as President Trump has called for harsh interrogation of terrorism suspects.
Mitchell and Jessen created a company that earned $81 million through a series of government contracts from 2003 until President Obama ended the arrangement, and torture tactics, in 2009.
The pair helped birth what grew into the notorious U.S. rendition program involving abductions, flights to "black site" prisons overseas, and "enhanced interrogation" techniques. The methods included waterboarding, beatings and mind-bending experiments with glaring lights and incessant music in attempts to force detainees, including Khalid Shaikh Mohammed to talk.
The admitted plotter of the Sept. 11, 2001, attacks, Mohammed was waterboarded 183 times and eventually confessed to involvement in a series of terrorist acts, the U.S. said, including a never-launched second wave of aerial attacks that was planned against the US Bank Tower in Los Angeles and skyscrapers in Chicago, Seattle and Manhattan.
Skeptics, however, said there was no proof to support Mohammed's claims and, in the words of Sen. John McCain (R-Ariz.), the brutal questioning "actually produced false and misleading information" from Mohammed.
Trump recently said he believed enhanced interrogation "absolutely works," but his CIA director, Mike Pompeo, said he would "absolutely not" bring back torture, and Trump's secretary of Defense, retired Marine Gen. James N. Mattis, doesn't support waterboarding or torture.
"Give me a pack of cigarettes and a couple of beers," he famously told Trump during one of their meetings, "and I do better with that than I do with torture."
In an ABC interview on his fifth day in office, Trump appeared to still be holding out for the use of torture, vowing to do "everything within the bounds of what you're allowed to do legally." If that included waterboarding, he said, "then I will work for that end [because] I think it works."
The next day, he hedged, saying he'd leave the final decision to Mattis. "I'm going to rely on him," Trump said. Mattis "would override [me] because I am giving him that power."
Psychologist Mitchell, however, on a recent U.S. tour to promote his new book on the interrogation and rendition saga, "Enhanced Interrogation," said the media were probably overstating Mattis' objections.
"Would you [as a prisoner] give up information that would get Americans killed if you were captured by ISIS or Al Qaeda, for a Michelob and a pack of Winstons?" he asked.
"I don't think so," he answered, Buzzfeed reported.
Whether the lawsuit can proceed against Mitchell — who personally interrogated prisoners, including Mohammed — and Jessen was the subject of a Jan. 19 hearing held by a federal judge in Spokane. Though the psychologists developed the torture program as independent CIA contractors, they took their marching orders from the agency, argued their attorney James T. Smith during a telephonic court hearing.
The military's oversight, Smith maintained, effectively made the psychologists agents of the government who were protected from lawsuits under the color of law by the Military Commissions Act. "Every action taken by our clients," Smith said on the phone from Philadelphia, "was taken at the request of the United States of America."
Dror Ladin, an American Civil Liberties Union attorney in New York who brought the lawsuit on behalf of former detainees, disagreed. "Acting jointly in no way changes that definition [of contractor]. There is no support for immunity for that type of action," Ladin said.
Ladin represents Suleiman Abdullah Salim, a Tanzanian fisherman abducted by the CIA in Somalia in 2003, allegedly tortured and released five years later with a document stating he posed no threat to the United States; and Mohammed Ahmed Ben Soud, a Libyan abducted in 2003 and allegedly tortured in Afghanistan, then rendered to Libya and held until 2011, after the overthrow of the Kadafi regime.
He also represents the Afghan family of Gul Rahman, also abducted, who died after two weeks in CIA custody, chained up and suffering from hypothermia. Rahman was held at a facility in Afghanistan known as the "Salt Pit."
The plaintiffs are seeking compensatory damages of more than $75,000, plus punitive damages and attorneys' fees.
U.S. District Court Judge Justin L. Quackenbush, ruling from the bench, gave the nod to Ladin. The folksy Quackenbush, 87, had turned away a defense motion last April to dismiss the lawsuit, and said his mind hadn't been changed.
"I don't think they were operating as agents," he said.
He later issued a written ruling, stating that "while an 'independent contractor' could be in an agency relationship with a principal whom it has contracted with, Defendants have not presented such facts."
The judge also said Mitchell and Jessen failed to establish that the three detainees had been named as enemy combatants, which would have prevented them from suing the psychologists. "None of the three plaintiffs was determined by a Combatant Status Review Tribunal to be an 'enemy combatant,'" as defined by the George W. Bush administration, the judge concluded.
During the telephone arguments, Smith said CIA officials should be brought to court and questioned about their definitions of agents and combatants. "We've been trying to get the CIA to take a position on this," said Smith. The judge should put CIA officials under oath "and force them" to explain, he added, an idea Quackenbush also rejected.
The CIA has cooperated in other efforts to enable the case — tentatively set for trial starting June 26 — by providing documents and choosing not to invoke a national security defense to prevent disclosure.
The government's turnabout was due in part to an explosive 525-page summary of a 7,000-page government expose released in 2014 by the Senate Select Committee on Intelligence, revealing abuses, CIA misrepresentations, and U.S. officials' awareness that the program was illegal. The report described waterboarding, sleep deprivation, beatings and exposure to loud noises, among other techniques.
Sen. Dianne Feinstein (D-Calif.), who unsuccessfully urged President Obama in his final months in office to release the full report, said history would judge the nation by its "willingness to face an ugly truth and say, 'Never again.'"
The CIA disputed the report's findings. So did Mitchell, who in his new book rejected many of the Senate report's conclusions and said the techniques produced valuable information to aid the U.S. war on terrorism.
"I have looked into the eyes of the worst people on the planet," he wrote. "I have heard their eagerness to convert or kill millions of people in the process.… Our actions were necessary, effective, legal and authorized and helped save lives in America." Those claims are now headed to trial.