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Torture suit against Spokane psychologists Mitchell and Jessen could face more delays

In this Dec. 2011, file picture the National Registry Office for Classified Information, behind railway tracks, also known as ORNISS, where between 2003 and 2006, the CIA operated a secret prison from the building's basement, bringing in high-value terror suspects for interrogation and detention, sits in a busy residential neighborhood minutes from the center of Romania’s capital city Bucharest. Former Romanian president Ion Iliescu has acknowledged approving the CIA’s request for a site in Romania, but said he would have refused had he known its destination, one of the CIA “black sites” - prisons outside the U.S. where suspected terrorists were held and subjected to harsh interrogation. (AP)
By Thomas Clouse tomc@spokesman.com(509) 459-5495

A federal judge appears to be growing weary of continued delays in the complex legal case brought by three men who claim they were victims of torture that was designed, and sometimes carried out, by two former psychologists from Spokane.

Attorneys for the ACLU, who represent the three former detainees, told U.S. District Court Judge Justin Quackenbush on Tuesday that they have all the information they need to proceed in their civil suit against Bruce Jessen and James Mitchell.

Attorneys for the psychologists and for the U.S. Justice Department, however, continue to battle over documents.

And Justice Department attorney Andrew Warden suggested Tuesday that further delays may be needed until President Donald Trump’s newly appointed CIA director Mike Pompeo and Attorney General Jeff Sessions have time to review the case to decide whether to release key documents.

Mitchell and Jessen made millions from the CIA to develop strategies to interrogate detainees in the war on terror. The two reverse-engineered the survival training taught at Fairchild Air Force Base to extract information from suspected terrorists, methods that included waterboarding, starvation and sleep deprivation.

Quackenbush told the attorneys, who listened on the phone from New York to Seattle, that taxpayers are footing the bill for Mitchell and Jessen’s legal work as well as the government’s as they continue to argue over which records can be turned over and those that should remain secret.

“The government is spending large sums of taxpayers’ money in the positions it’s taken thus far in this case,” Quackenbush said. The cost represents “a total figure that would almost equal a reasonable settlement in this case.”

The lawsuit was filed in 2015 by the American Civil Liberties Union, representing Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and the estate of Gul Rahman.

Rahman, an Afghan, was taken from his home in Pakistan in November 2002 to a secret CIA prison. He died of hypothermia several weeks later after being shackled to a floor in near freezing conditions.

According to the lawsuit, Salim and Ben Soud both suffered waterboarding, daily beatings and sleep deprivation while inside CIA “black sites” where Jessen and Mitchell developed and sometimes took part in the interrogation.

A U.S. Senate investigation later found that Mitchell and Jessen’s techniques produced no actionable intelligence in the war on terror. President Barack Obama terminated the contract with the pair in 2009.

Warden, the Justice Department attorney, said legal arguments will be forthcoming that will lay out why the federal government must “assert the state secret privilege,” or deny records that would show internal governmental processes.

However, Quackenbush pointedly questioned the attorney as to why it has taken this long for the government to make up its collective mind on the documents.

“We are eight months in and government agencies say that it still needs more time to determine whether to assert the state’s secret privilege,” Quackenbush said.

Warden noted that attorneys for Jessen and Mitchell recently asked for Department of Defense records dating back some 15 years in “an overly broad universe of information,” something that the attorney for the three men who filed the suit called “fishing for new information.”

Dror Ladin, the ACLU attorney who filed the case, said it’s his belief that the government has provided a “vast swath of documents … that would shed new light on issues the defendants want to advance.”

“To be clear,” Ladin continued, “we have maintained that there is enough information in the public record to proceed with the case.”

But Brian Paszamant, who represents Jessen and Mitchell, said he needs access to redacted government files to defend his clients.

“There are things identified in there that appear distinctly important to our claim,” Paszamant said. “My clients are not allowed to share with me (details)… for some of the same reasons the government says it can’t share” documents. “It’s a unique case.”

Quackenbush noted that the lawsuit isn’t against the U.S. government’s overall decision to use waterboarding or other enhanced interrogation techniques, only whether the three men “were subjected to torturous interrogation techniques … put in place by the defendants.”

“Obviously, (Jessen and Mitchell) were privy to what happened with the three plaintiffs,” Quackenbush said. “They were involved with the case from the start.”

Warden said the decision to seal the records may have to wait for Pompeo and Sessions to review so that the Trump administration has a chance to weigh in on the case.

However, Quackenbush asked why the new administration had anything to do with the case. “This started months ago when you had a long-serving director of the CIA and attorney general,” he said.

While Quackenbush said he doesn’t delay the date for civil cases “very often,” he indicated that the question of sensitive records and a pending deposition of Salim in South Africa could cause him to delay the trial, which is currently scheduled for June 26.