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Judge Quackenbush denies motion to dismiss torture suit against Mitchell and Jessen

UPDATED: Thu., Jan. 19, 2017, 10:38 p.m.

Protesters Kim Stankowich (left), Willow Moline (center) and Nancy Nelson demonstrate their opposition to torture during a gathering outside the office of Mitchell and Jessen at the corner of Washington and Riverside, August 23, 2007. James Mitchell and Bruce Jessen are psychologists who are contractors operating at the CIA's black sites in the war on terror. (Dan Pelle / The Spokesman-Review)
Protesters Kim Stankowich (left), Willow Moline (center) and Nancy Nelson demonstrate their opposition to torture during a gathering outside the office of Mitchell and Jessen at the corner of Washington and Riverside, August 23, 2007. James Mitchell and Bruce Jessen are psychologists who are contractors operating at the CIA's black sites in the war on terror. (Dan Pelle / The Spokesman-Review)

A federal judge in Spokane refused Thursday to dismiss a lawsuit filed by the American Civil Liberties Union against two Spokane psychologists who designed and, in some cases, carried out torture techniques against terrorism suspects.

U.S. District Court Judge Justin Quackenbush said he is inclined to dismiss a motion brought by attorneys representing James Mitchell and John “Bruce” Jessen, who used waterboarding during interviews of men suspected of involvement with or having knowledge of terrorist networks.

The case was brought by the ACLU on behalf of three men: Gul Rahman, Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud. They contend they were tortured using methods developed by CIA-contracted psychologists. Rahman died some two weeks after he was taken into custody.

The motion to dismiss was brought by Philadelphia attorney James T. Smith, who argued that Jessen and Mitchell were acting as agents of the government and were therefore immune under the Military Commissions Act.

“Let’s assume, pursuant to the contract with the CIA, that the defendants propose various interrogation methods: waterboarding,” Judge Quackenbush said. “The CIA agrees that they go forward with the waterboarding. They then proceed to waterboard a person who is still in custody.”

The judge then asked attorney Dror Ladin, who is representing the ACLU, whether, under that scenario, Jessen and Mitchell then became agents of the government.

“No,” Ladin replied. “The defendants are acting jointly with the government but that doesn’t mean they are agents of the (United States) … Acting jointly in no way changes that definition. There is no support for immunity for that type of action.”

In 2002, then-President George W. Bush issued a finding stating that prisoners suspected of being al-Qaida or Taliban were “enemy combatants” and unprotected by articles of the Geneva Convention that bar the use of torture.

The CIA then hired Mitchell and Jessen and paid them tens of millions of dollars for their work reverse-engineering the survival training taught at Fairchild Air Force Base to extract information from suspected terrorists, methods that included waterboarding, starvation and sleep deprivation.

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 then terminated the contract with the pair in 2009.

One of the key legal questions in the case is whether the CIA ever declared the three men named in the suit as enemy combatants, which would provide some legal cover for their interrogations.

Smith said in the telephone conference in court Thursday that he has been trying to get CIA officials to take a position or provide any unknown documents. Smith suggested that Quackenbush hold a hearing to determine what CIA officials had determined prior to interrogations by Mitchell and Jessen.

The judge declined.

“In two cases, I think it’s clear that there had not been a proper determination that there was an enemy combatant” designation, Quackenbush said.

The trial in the case has been set for June. However, the parties previously have had difficulty getting former government officials to give depositions.

Last October, Quackenbush ordered depositions from the CIA’s chief lawyer, John Rizzo, and Jose Rodriguez, who was the head of the CIA Counterterrorism Center.

In court on Thursday, the attorneys said the men have agreed through counsel to conduct the depositions in the Dominican Republic.