The civil lawsuit filed against two Spokane military psychologists who developed methods used to torture suspected terrorists, including at least one who died, may move forward, a federal judge ruled Friday.
U.S. District Court Judge Justin Quackenbush’s ruling in the case against Bruce Jessen and James Mitchell begins what an attorney representing the U.S. Department of Justice said likely would be “a fairly lengthy and time-consuming process” of producing documents and testimony about what the psychologists called “enhanced interrogation.” Some of that information may be classified, but Quackenbush said he wanted the ability to rule on what could be sealed.
“I’ll make that decision, not the CIA,” Quackenbush told Andrew Warden, the Justice Department attorney handling disclosure in the case, after Warden said some of the documents could be considered state secrets.
The American Civil Liberties Union, representing Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and the estate of Gul Rahman, claims Jessen and Mitchell committed war crimes and dismisses their defense attorneys’ arguments that a signed contract with the CIA grants them legal immunity.
“You can’t have a contract to do illegal activity,” Dror Ladin, the lead attorney for the ACLU, said after the hearing.
Mitchell and Jessen earned 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. 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 freezing conditions.
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, according to reports from NBC News and the New York Times.
Jim Smith, a Philadelphia attorney representing Mitchell and Jessen, told Quackenbush his clients should receive immunity because they were acting on authority from the CIA.
“The whos, whats, wheres, whens, whys and hows were all decisions made by the military,” Smith said.
Quackenbush asked if either side had a copy of the contract the psychologists signed with the CIA, to determine the scope of their authority in developing the torture methods that followed. Smith said he didn’t, and he believed that document might be classified, based on advice from other defense team members.
“When I leave the courtroom, I’m going looking for it,” Smith said.
The defense team pointed to a recent decision out of the U.S. District Court in Eastern Virginia involving four men who were held at the Abu Ghraib prison in Iraq between 2004 and 2008. The Virginia judge dismissed the claims of the men against a Delaware contractor who handled interrogation and translation services at the prison, saying he couldn’t decide the case because it involved strategic decisions by the military.
Quackenbush said he wouldn’t rule based on the decision in that case, a ruling that will be heard by the U.S. 4th Circuit Court of Appeals next month.
Protesters from the groups Veterans for Peace and the Peace and Justice Action League of Spokane gathered on the sidewalk outside the Thomas S. Foley United States Courthouse before the hearing began. Liz Moore, director of the Peace and Justice Action League, said her group was happy with Quackenbush’s ruling and hoped that it would lead to criminal prosecution for Mitchell and Jessen, who were not at the table with the lawyers Friday.
“These are war crimes,” Moore said. “There should be criminal prosecution on the federal level. There should be criminal prosecution at the international level.”
Quackenbush gave the parties 30 days to decide on a plan for how to deal with the production of potentially sensitive documents and testimony in the case. He assured Warden, the Justice Department attorney, the documents would be in safe hands.
“I think we still have the safe in the basement,” he said.
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