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9th Circuit sends ‘torture’ case involving Mitchell and Jessen back to Spokane judge

UPDATED: Thu., Sept. 19, 2019

The Thomas S. Foley U.S. Courthouse is seen in January 2014. Juan Vasquez Gonzalez received a five-year prison sentence in the courthouse this week after pleading guilty to traveling with the intent to commit an illegal sexual act with who he believed was a 13-year-old girl. (Jesse Tinsley / The Spokesman-Review)
The Thomas S. Foley U.S. Courthouse is seen in January 2014. Juan Vasquez Gonzalez received a five-year prison sentence in the courthouse this week after pleading guilty to traveling with the intent to commit an illegal sexual act with who he believed was a 13-year-old girl. (Jesse Tinsley / The Spokesman-Review)

In a split decision, federal appellate judges have ruled that a federal judge in Spokane must reconsider his dismissal of a lawsuit seeking to interview former Spokane psychologists James Mitchell and John “Bruce” Jessen about the “torture” of a detainee who was being held in a CIA black site in Poland.

Attorneys representing Abu Zubaydah filed a lawsuit in 2017 in U.S. District Court in Spokane seeking to interview Mitchell and Jessen, who have been described as the architects of enhanced interrogation techniques, including waterboarding, that previously have been alleged as torture. The interview requests relate to an ongoing criminal investigation in Poland about activities that occurred at a CIA secret prison, often referred to as a “black site.”

The lawsuit was seeking to have U.S. District Court Judge Justin Quackenbush approve a request by Zubaydah’s attorney, Joseph Margulies, to interview both Jessen and Mitchell about their interactions with Zubaydah as part of the criminal investigation in Poland.

Quackenbush acknowledged in his 2018 dismissal that the case “presented a painful conflict between human rights and national security” but dismissed it at the request of the U.S. government.

“This court concludes the CIA director’s assertion of the government’s national security interests and assertion of the state secrets privilege necessitates dismissal of the action,” Quackenbush wrote in his 2018 decision.

However, in a 2-1 ruling Wednesday, the 9th U.S. Circuit Court of Appeals reversed Quackenbush’s dismissal and sent it back to him with instructions to determine, if he can, the difference between information that is deemed state secrets and those parts of the case that are not.

The decision was applauded by attorney Margulies, a Cornell law professor, who until recently has represented Zubaydah, who continues to be held as an enemy combatant in Guantanamo Bay, Cuba, without any formal criminal charges.

“This is the first time that a court has acknowledged the enhanced interrogation as torture,” Marguiles said. “And two, it’s the first time that any court has acknowledged that the government allegations against (Zubaydah) were mistaken. We’ve been saying that forever. But, it’s never appeared in court before.”

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 worked with Air Force officials on a program to help troops resist interrogation, reverse engineered the program to glean 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 about 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 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 2017 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.

Justice Department attorney Andrew Warden, who also argued against the civil case brought by the ACLU, argued in Spokane in 2017 that Zubaydah’s request for depositions should be denied outright because it was 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 falls under the state secrets privilege. That information … would be catastrophic to covert operations overseas.”

In his dissent to the decision by the other appellate judges, Judge Ronald Gould wrote he defers to the view of government officials that the case could disclose secrets that could cause serious harm.

“The majority jeopardizes critical national security concerns in the hope that the district court will be able to segregate secret information from public information that could be discovered,” Gould wrote.

Attorney David Klein, who argued the appeal on behalf of Zubaydah, praised the majority’s decision and said he believes Quackenbush will be able to separate details needed for the case from state secrets.

“There is no doubt that what is described in the opinion is torture,” said Klein, of Washington, D.C. “In order to get justice, you need to get to the truth. I think the courts are acknowledging the truth.”

As for Zubaydah, Margulies said the government has barred the attorney from discussing Zubaydah’s current emotional and medical status. However, court records indicated that Zubaydah has suffered more than 300 seizures following his treatment during the interrogations.

“His condition is classified,” Margulies said. “What we can say is, we are very concerned about his well-being. That’s what the government has cleared us to say.”

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