A visibly shaken Dror Ladin labored in court as he tried on July 28 to convince U.S. District Court Judge Justin Quackenbush why the ACLU’s lawsuit on behalf of three tortured men should go forward.
The legal quandary was this: An exhaustive investigation by the 2014 Senate Select Report on Intelligence found ample evidence that Spokane psychologists Bruce Jessen and James Mitchell provided the CIA the methods for torture, including waterboarding, that were used on dozens of detainees in the early years on the war on terror.
But Ladin could not cite any direct evidence that Mitchell and Jessen directly supervised or carried out the torture on his clients, Sulieman Abdullah Salim and Mohamed Ahmed Ben Soud. However, ample evidence showed that Jessen took part in the torture of Gul Rahman, who was short-chained to a floor and died of hypothermia in his cell.
While Quackenbush openly questioned the merits of the case in court, he later wrote a 43-page opinion released on Monday allowing the case to proceed towards a scheduled Sept. 5 trial in Spokane.
“The factual record would support a finding defendants had a role in the design of the program, trained interrogators for the program, and exercised some discretion in the application of the program,” Quackenbush wrote. Mitchell and Jessen “have not established they merely acted at the direction of the government, within the scope of their authority, and that such authority was legally and validly conferred.”
Even Ladin seemed somewhat surprised at the ruling, given the grilling he took in court.
“The judge did express reservations,” Ladin said. “But he certainly agreed that their claims can go to trial.”
The ruling denied legal efforts by the attorneys representing Mitchell and Jessen to limit the scope of the case or to dismiss it outright.
In the last hearing, defense attorney Brian Paszamant argued that his clients only provided the CIA with a list of potential interrogation techniques.
“The problem is my clients were involved in drafting the guidelines (for the CIA) and didn’t know they were going to be applied at” CIA black-site prisons, Paszamant said. “There is a huge disconnect.”
Quackenbush asked Paszamant about the treatment of Rahman, who was placed in a diaper before he died on a cold floor. Evidence suggested that Jessen helped interrogate Rahman but it only included one slap to his face.
“I’m not sure a single slap to the face would constitute torture under international law,” Paszamant said last month.
Quackenbush replied: “He was tortured.”
Paszamant pointed out that Rahman died of exposure … “none of which my clients had anything to do with. I’m not at a position to acknowledge (Rahman) was subjected to torture.”
The judge then added: “That’s why we have juries.”
In his written findings, Quackenbush noted that the defense attorneys made “several unconvincing arguments” that there was no connection between developing the interrogation techniques and those applied to Sulieman and Ben Soud.
“That is factually incorrect,” Quackenbush wrote. “Some techniques are identical and others appear to be variations, such as water dousing,” he wrote.
Ladin said he’s glad the judge ruled to move the case forward.
“This is a historic day for our clients and all who seek accountability for torture,” Ladin said. “The court’s ruling means that for the first time, individuals responsible for the brutal and unlawful CIA torture program will face meaningful legal accountability for what they did.”
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