CIA torture victims' case will go forward after judge hears claims – as it happened
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Judge says discovery may begin in case of three CIA torture victims who were subjected to some of the most brutal interrogation techniques of post-9/11 era
Summary: court hearing ends with victory for torture victims
For the first time in a civil lawsuit brought by victims of the CIA torture program, a federal judge has allowed the case to move forward
Judge Justin Quackenbush denied a motion to dismiss the case against two contract psychologists, the architects of the CIA’s “enhanced interrogation” program
In 30 days, attorneys for the psychologists and the three victims who sued and the Department of Justice must come up with a plan for discovery
During the discovery process, depositions will be taken of the psychologists and the victims, among others, and the DoJ will help figure out how to navigate a plethora of classified information
Today's win is huge. It means for the 1st time, victims will be able to call their torturers to account in court https://t.co/4kVEXVcKoJ
The CIA is accused of torturing three men – one of whom died. Claims are being heard for Suleiman Abdullah Salim, a Tanzanian fisherman; Mohamed Ahmed Ben Soud, a Libyan who was living in exile from Muammar Gaddafi’s regime; and Gul Rahman, an Afghan refugee who froze to death while being detained and interrogated at a CIA black site.
Suleiman Abdullah Salim. Photograph: Molly Kaplan/ACLU
Today’s hearing would not have been possible without the Senate torture report. The entire 6,700-plus-page document has not been declassified, but a 525-page executive summary was made public in December 2014. The chilling document, whose publication was long resisted by the CIA, outlines methods the agency used to obtain information from detainees after the 9/11 terrorist attacks.
The report is damning in its catalogue of torture and mistakes. It details the actions of outside contractors Mitchell and Jessen, although it refers to them by psuedonyms. Here are some excerpts of the report:
“CIA personnel, aided by two outside contractors, decided to initiate a program of indefinite secret detention and the use of brutal interrogation techniques in violation of U.S. law, treaty obligations and our values.”
“The CIA contracted with two psychologists to develop, operate, and assess its interrogation operations. … Neither psychologist had any experience as an interrogator, nor did either have specialized knowledge of al-Qa’ida, a background in counterterrorism, or any relevant cultural or linguistic expertise.”
“At least five CIA detainees were subjected to ‘rectal rehydration’ or rectal feeding without documented necessity. The CIA placed detainees in ice water ‘baths.’ The CIA led several detainees to believe they would never be allowed to leave CIA custody alive, suggesting to one detainee that he would only leave in a coffin-shaped box.”
“One interrogator told another detainee that he would never go to court, because ‘we can never let the world know what I have done to you.’ CIA officers also threatened at least three detainees with harm to their families – to include threats to harm the children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to ‘cut [a detainee’s] mother’s throat’.”
“While being subjected to the CIA’s enhanced interrogation techniques and afterwards, multiple CIA detainees fabricated information, resulting in faulty intelligence. Detainees provided fabricated information on critical intelligence issues, including the terrorist threats which the CIA identified as its highest priorities.”
Quackenbush: I’ll deny the motion to dismiss ... and direct that counsel submit within 30 days their proposed discovery … if we need to meet again on that specific issue I can accommodate you either here in the court or telephonically.”
Quackenbush said that he will toss out the defendants’ motion to dismiss. The case can move forward and discovery can soon begin.
When pressed by DoJ attorney Andrew I Warden on how discovery could go forward if he denied the motion to dismiss, Quackenbush said, “I’ve already said I’m going to deny it.”
The US government for the first time is allowing a civil case involving the CIA torture program to go forward. In a federal courtroom in Spokane, lawyers for the two contract psychologists are posting up against attorneys for three men who were brutally tortured.
Friday’s hearing is on a motion to dismiss the case and to figure out, if the case were to go forward, how discovery were to happen.
Much of the discussion is about volition – who decided whether the torture program that the psychologists created for the CIA should be implemented, who said the plaintiffs should be doused with icy water, strung up by their arms for hours, who should be deprived of sleep, beaten, terrified.
Other parts of the back and forth between the judge and the attorneys concerned whether there was a contract between the CIA and the defendants and what exactly it said.
Volition was also an enormous part of the discussion in court Friday morning, whether putting together an enhanced interrogation plan that included torture was enough to make Mitchell and Jessen liable.
Ladin: “You’re asking if the defendants put together a torture package ... but didn’t say who it would be used on would they still be liable?” Yes, he told the judge, they would.
Quackenbush responded that he’s been involved in questions of aiding and abetting for many years during his career, and “no one would ever be convicted of aiding and abetting by putting forward, ‘here are options you can utilize’.”
Ladin: “They set this up ... they were paid for years.”
Quackenbush: “If the bottom line is that in my hypothetical, the contract wherever it might be, said the defendants put together the options and gave it to the CIA. ... You’re suggesting that there’s aiding and abetting liability?”
Ladin answered with a hypothetical of his own: Say Mitchell and Jessen were financial planners and told their clients that they had two plans to make money. One was legal and “one is robbing a bank and here is the map”.
The defendants, he said, were “not merely suggesting” the torture program “but designing it and being paid. ... There’s no argument that the defendants were not deeply involved in the program.”
There has been lots of back and forth going on as a federal judge for the first time is hearing claims of three CIA torture victims who underwent some of the most brutal interrogation techniques of the post-9/11 era. Attorneys for two contract psychologists are arguing before senior federal judge Justin L Quackenbush that the case should be dismissed because they did not commit the acts for which they are accused. Dror Ladin, an ACLU attorney representing the torture victims, called the actions “war crimes”.
The mysterious contract loomed large throughout the proceedings in Department 903, where the defendants had three grey-suited attorneys present, the plaintiffs had four and a single lawyer sat alone at a table representing the Department of Justice.
Neither the two living plaintiffs nor the two defendants were present.
Ladin argued that “even if they produce a contract… the decisions implicated by that contract are not beyond this court’s ability to review….It would be premature to decide whether they were acting 100% within the letter.”
And he insisted that “what defendants seek in dismissing this case is a blank check...nowhere in the authorization for the use of military force does it say you may torture prisoners. Go forth and torture prisoners.”
Quackenbush responded: “But if the military tortured people there is no civil remedy” like the one the three men who filed the suit are seeking.
Quackenbush: I’m more concerned, counsel, about the political doctrine question and acts of war. You say there was no war. I disagree. The US was at war both factually and legally after 9/11.
Ladin: In no way have we suggested that there was not a war. But that these were war crimes.
'The president was kept in the dark about the techniques until 2006'
Quackenbush probed ACLU attorney Dror Ladin about whether the federal courts have the authority or ability to second-guess the military in wartime.
And whether it would make any difference if the person tortured was a civilian.
And whether the fact that no one has the contract between the CIA and the defendants matters.
Quackenbush: Do you know of any case where a member of the US military was sued civilly when carrying out orders?
Ladin: No, your honor. … But it’s not something the courts have turned a blind eye to. … This case doesn’t call on you to make the sort of broad strategic second-guessing as would have been needed in world war II…
Quackenbush: Do you share the sense of factual void I discussed with Mr Smith? The defendants were acting pursuant to a contract with the CIA.
Ladin: As you pointed out, we are on a motion to dismiss. … Extraneous information about the contours of a contract are not before us today.
And Ladin went on to correct Smith’s interpretation of the Senate torture report. “According to CIA records no CIA member briefed the president,” he said. “The president was kept in the dark about the defendants’ techniques until 2006.”
Quackenbush: Let’s assume the secretary of defense authorized it. What’s the difference then?
Ladin: When Mitchell and Jessen went to the CIA … they were not part of any military chain of command. They were independent contractors selling their expertise to the CIA. … This is not a case about combat. It’s about three men who were kidnapped in foreign countries.
Quackenbush asked defense attorney Smith about a recent US supreme court decision in the Gomez case.
Quackenbush: Let me ask you about the Gomez decision, which came down on January 20 of 2016 by the US supreme court. … Do federal contractors share the government’s unqualified immunity? The supreme court answered the question: “We hold they do not.” There is no blanket immunity.
Smith: Gomez of course is not a political question. It’s an immunity issue. The question is whether or not the subcontractor went and did exactly what the navy told them not to do. … The supreme court said no, you don’t get immunity when you do what the government told you not to do.
Quackenbush: I’d feel more comfortable if you had a copy of the contract in your hand.
Smith: ... The supreme court focused on “did you do what the government told you to do?”. In this case I don’t think it’s disputed that what the contractors did was exactly what the CIA told them to do.
Suleiman Abdullah Salim is one of three men who sued James Elmer Mitchell and John “Bruce” Jensen. He told the Guardian that, while being tortured by CIA interrogators during his five years in custody, “you can’t sleep, you can’t eat, you can’t smell.” Now back home in Tanzania, he said “flashbacks come anytime, so much they make you crazy”.
And then Quackenbush began asking who was in control.
Smith: The question was about control, the question was about who.
Quackenbush: Don’t we need to read the contract as to who had control?
Smith: I don’t think the plaintiffs dispute that the government controlled every facet of the program.
Quackenbush: Don’t the plaintiffs say there was a contract entered into between the plaintiffs and the CIA and the defendants put into place the specifics of the interrogation plan that included torture?
Smith: The decision to utilize or execute the plan ... were decisions that were made by the military, by the CIA.
What is remarkable about the hearing – beyond the fact that this is the first time Mitchell and Jessen have faced legal reprisal – is that the federal government has never before allowed a CIA torture case to progress this far through the legal system.
Earlier this month, attorneys from the US Department of Justice told the court that the government wants to help shape the discovery process if the psychologists end up facing trial. The DoJ will be represented at the hearing Friday.
The government has allowed the three men’s case to move forward because it can no longer fall back on the argument that any trial would open up classified information to the scrutiny of the country’s enemies.
One reason? The Senate torture report. The entire 6,700-plus-page document has not been declassified, but a 525-page executive summary was released on 9 December 2014.
Although they were held for years and subjected to what their lawsuit describes as “war crimes”, the three men were never accused of being members of al-Qaida. They were never charged with any crimes. They were left with serious psychological and physical injuries but have received no compensation from the US government.
The victims’civil lawsuit alleges that psychologists James Elmer Mitchell and John “Bruce” Jessen, independent contractors hired by the CIA, designed a brutal torture program that amounted to a “joint criminal enterprise”.
Over the course of five years, 119 men were abused using their techniques; the three plaintiffs in the suit were among the 39 subjected to the most harsh torture and scientific experimentation, which included anal penetration, mock execution, being doused with icy cold water and enduring something akin to waterboarding.
In 2012, the Department of Justice announced that CIA officials responsible for the torture regime would not face criminal charges.
Mitchell and Jessen’s attorneys will argue before senior federal judge Justin L Quackenbush on Friday that the case should be dismissed because the psychologists did not commit the acts that they are accused of in Salim, Ben Soud and Rahman’s suit, which was filed in October.
“They did not create or establish the CIA enhanced interrogation program,” defense attorney Christopher W Tompkins said in court documents, “they did not make decisions about Plaintiffs’ capture, treatment, confinement conditions, and interrogations; and they did not perform, supervise or control Plaintiffs’ interrogations.”
A federal judge in eastern Washington state will begin considering the claims of CIA torture victims Friday for the first time.
In a hearing scheduled to begin at 9am, lawyers for three men who underwent some of the most brutal interrogation techniques of the post-9/11 era will argue that the architects of the CIA’s torture program – two contract psychologists – are not immune and should face punishment.
“We want our clients to finally receive justice, get a chance to have their torturers – the men who designed the pseudo-scientific torture program – to answer for what they did,” said Dror Ladin, an ACLU attorney representing two victims who survived beatings, water torture, solitary confinement, sleep deprivation and other assaults and the family of one man who did not.
“For America, it’s pretty critical that we finally have a hearing and some accountability for torture, otherwise we can never turn the page on it,” Ladin continued. “We run the very real risk of going down that path again.”
Ladin is representing Suleiman Abdullah Salim, a Tanzanian fisherman; Mohamed Ahmed Ben Soud, a Libyan who was living in exile from Muammar Gaddafi’s regime; and Gul Rahman, an Afghan refugee who froze to death while being detained and interrogated at a CIA black site.
