Spokane psychologists James Mitchell and Bruce Jessen may not be done talking to attorneys about waterboarding.
Even though the government settled a civil suit earlier this summer brought on behalf of three detainees by the ACLU, different attorneys were in court Tuesday seeking approval from U.S. District Court Judge Justin Quackenbush to interview Mitchell and Jessen about their observations during the torture of Abu Zubaydah at a CIA black site in Poland.
The United States worked with several countries to operate secret CIA prisons, called black sites. One of those sites, according to court records, was in Poland where agents between 2002 and 2003 held Zubaydah, who originally was suspected of being an Al Qaida operative who helped plan the 9/11 attacks.
A court in Poland is now conducting a criminal investigation to determine whether any Polish nationals took part in Zubaydah’s torture and therefore should face prosecution.
“The really important fact here is that Mr. Zubaydah has been given the right under Polish law to provide evidence,” said attorney David Klein, of Washington, D.C., who is representing Zubaydah.
Hired by the CIA, Mitchell and Jessen were paid a total of about $81 million to develop and sometimes carry out the methods of torture used to extract information from detainees. The psychologists, who formerly had worked at Fairchild Air Force Base to train troops how to resist interrogation, reverse engineered the program to gleen information from enemy combatants.
Under the belief that Zubaydah had information that could thwart another attack, interrogators, including Mitchell and Jessen, forced Zubaydah to undergo sleep deprivation, extreme confinement, forced nudity and physical assaults. They also waterboarded Zubaydah some 83 times over 17 days, according to court records.
A U.S. Senate investigation later found that Mitchell and Jessen’s techniques produced no actionable intelligence in the war on terror. That Senate investigation, first released in 2014, became the basis of the civil suit brought by the ACLU on behalf of on behalf of three men, Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and the late Gul Rahmam.
That case ended with a settlement just weeks before a scheduled September trial. The terms of the settlement were not disclosed.
Despite eventually finding that Zubaydah had no role in the 9/11 attacks or ties to Al Qaida, Zubaydah remains in custody at the Guantanamo Bay detention center in Cuba, according to court records.
Klein is seeking to have Quackenbush approve the depositions of Mitchell and Jessen not as suspects, but as witnesses to what happened at the black site in Poland.
Quackenbush pressed Klein about whether the psychologists would put themselves at legal risk because “they could be incriminating themselves. Are you aware of any grant of immunity for their testimony.”
Klein said he did not, but that as U.S. citizens they would be “beyond the reach of Polish authorities,” he said. “Again, that is not our interest here. My intention is not to use the machinery of the court to force them to incriminate themselves. But, I want to know what they observed to help this investigation.”
Justice Department attorney Andrew Warden, who also argued against the civil case brought by the ACLU, said that Zubaydah’s request for depositions should be denied outright because it comes in conflict with the government’s state secrets privilege.
“Our concern is … to have Dr. Mitchell and Dr. Jessen sit for a deposition would be confirming or denying a relationship that the U.S. had with Poland,” he said. “We would disagree that fact has been acknowledged and therefore calls under the state secrets privilege. That information … would be catastrophic to covert operations overseas.”
But Klein argued that the secrets privilege can’t be used to hide something that is already known.
“For it to be a state secret, it must first be a secret,” Klein said. “The European Court of Human Rights held that Zubaydah was held at a dark site in Poland with the help of Polish authorities. So we are here to understand the story around it.”
Klein said the subpoenas could be crafted to avoid testimony about state secrets and sidestep “the parade of horribles laid out by the government. We would prefer that Mr. Mitchell and Mr. Jessen be allowed to testify about who was involved,”
“This could help identify people … and provide facts to establish a crime under Polish law.”
Warden countered that actions of European courts “don’t constitute a waiver of the state secrets privilege. The government can’t fairly litigate those claims without confirming or denying that it had a something to do with Poland.”
Quackenbush indicated that he would not allow the attorneys for Zubaydah to go fishing for information about torture at other black sites, which he said clearly would fall under the state secrets privilege. But Quackenbush seemed open to the idea of allowing Mitchell and Jessen to be questioned.
“I would not preclude the fact that two witnesses were in Poland when Abu Zubaydah was there,” he said, and “what they observed with regard to Polish activities. I’ll advise counsel in writing of my decision on these matters.”