[Marxism] Lawsuit Aims to Hold 2 Contractors Accountable for C.I.A. Torture

Louis Proyect lnp3 at panix.com
Mon Nov 28 08:07:00 MST 2016

NY Times, Nov. 28 2016
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. 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 

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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