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CIA Psychologists Sued Over Enhanced Interrogation

CIA Psychologists Sued Over Enhanced Interrogation

 I have looked into the eyes of the worst people on the planet. I have heard their eagerness to convert or kill millions of people in the process.… Our actions were necessary, effective, legal and authorized and helped save lives in America.

-James Mitchell in Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America

After the attacks of September 11, 2001, the United States government launched a full-scale attack on global terrorism. This included efforts to extract information from thousands of suspected terrorists who were captured on the frontlines of the war on terror.

            In 2001, the CIA created a prison known as “COBALT” where interrogators used harsh measures to “break any resistance of al-Qaeda captives by inducing a state of helplessness.”

Nearly fifteen years later, the American Civil Liberties Union filed a lawsuit against psychologists James Mitchell and John Bruce Jessen on behalf of three former detainees exposed to these advanced interrogation techniques: Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and a representative for the deceased detainee Gul Rahman.

Mitchell and Jessen originally developed the methods used in the interrogation program and ran a Spokane, Washington-based company that received $81 million from the CIA to extract information from detainees. Each plaintiff seeks compensatory and punitive damages.

On July 28, Judge Justin Quackenbush of the United States District Court for the Eastern District of Washington denied motions from both sides to end the case in the pre-trial stage, ruling that the evidence warrants a trial on the issues. Trial is set for September 5. [1]

            Let’s look at some of the legal issues surrounding the lawsuit. What is the basis of the suit? What are the relevant legal standards? If the suit goes to trial, what will the psychologists assert in their defense?

The basis of the lawsuit is the Alien Tort Statute. Passed all the way back in 1789, it allows non-citizens to sue in US courts for violations of the law of nations or a treaty of the United States.[2] Federal courts are also given jurisdiction to hear non-citizens’ claims regarding international law when the claims “touch and concern the territory of the United States.” [3]  

The plaintiff’s claims in this case touch and concern the United States because the US government is alleged to have carried out the disputed conduct and because the defendants were acting with and on behalf of the United States.

The plaintiffs allege two underlying causes of action:

First, the plaintiffs allege that they were subjected to interrogation methods that violated international law. Specifically, the Geneva Convention, which the United States is a party to, prohibits:

Outrages upon personal dignity, in particular humiliating and degrading treatment.

The plaintiffs also argue that the defendants helped the CIA violate customary intentional law, established by the International Committee of the Red Cross’s Rule 90, which states:

Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.[4]

The plaintiffs argue that the methods that the psychologists developed violated these standards for several reasons. Allegedly, the conditions in COBALT resembled “a dungeon” and detainees were kept in total darkness. The prison’s guards monitored detainees using headlamps and constantly blared loud music in their cells. Methods such as prolonged sleep deprivation, walling, stress positions, facial slaps, abdominal slaps, dietary manipulation, facial holds and cramped confinement in large and small boxes are all alleged. These could objectively qualify as “humiliating and degrading” treatments as defined by international law.

            The plaintiffs’ second claim is that Mitchell and Jessen experimented on the plaintiffs without their consent, which violates international law bans on non-consensual human experimentation. Specifically, the defendants are alleged to have created an experimental theory that prisoners could be reduced through abusive treatment to a state of “learned helplessness” that would render them unable to resist their interrogators’ demands for information.

The defendants allegedly monitored and recalibrated their experimentation based on the plaintiffs’ physical and psychological reactions to the interrogation techniques.

            Mitchell and Jessen will make a variety of arguments in their defense. The first set of arguments will center around jurisdiction. The second set of arguments will center around whether the psychologists aided and abetted the CIA in committing a crime.

Mitchell and Jessen will first argue that a federal court does not have jurisdiction to even hear these claims, perhaps relying on the Military Commissions Act. That Act precludes federal courts from hearing claims relating to the detention of foreign enemy combatants.

The statute provides:

…no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. [5]

For this statute to apply, the defendants must successfully argue that:

1.    They are agents of the United States; and

2.    The plaintiffs were enemy combatants.

Regarding the question of whether the defendants were agents of the United States, the defendants could maintain that they acted as representatives of the US government when devising their methods of interrogation. Though their contracts with the government referred to the them as “independent contractors,” their close working relationship with the CIA could be reasonably interpreted to be one of agency.

The plaintiffs take a narrower view of the definition of agent and will counter that the psychologists are not agents. They believe that agents under the statute means service members and government employees. Since they were explicitly listed and classified as independent contractors, the protections afforded by the MCA would not apply to them.

In determining whether the plaintiffs were “enemy combatants,” the Plaintiffs argue that the determination on enemy combatant status must be made by a military tribunal that they were enemy combatants to trigger that element of the statute. No such determination was made with respect to these plaintiffs. The defendants will assert that no tribunal finding is required. They may even claim that any government reference to a person as a “combatant” or government reference to affiliation with a hostile organization is enough.

The facts on this question are not clear either way. In some documents, Salim is referred to as a “low level enemy combatant” while other documents submitted state that he is no longer an enemy combatant. A “Review Tribunal” conducted a review at one point and found that he was not an enemy combatant that would threaten the United States. There is no documentation referring to Soud as an enemy combatant; instead, he is listed as “a probable member of the Libyan Islamic Fighting Group.” A mere affiliation with a terrorist group may not render one an enemy combatant. The third plaintiff, Gul Rahman, who died in custody in 2002, was a suspected Afghan extremist associated with an Afghani terrorist organization. When he was detained and interrogated, he was referred to as “an enemy combatant” on only one occasion. Prior to his detention, there was no evidence demonstrating that he was detained as an enemy combatant. Despite this, at the time of his death, a Review Tribunal was reviewing his situation to see whether he was an enemy combatant, though the review was rendered moot and ended by his death.

The jury will have to analyze these facts and weigh the evidence to reach a conclusion as to whether the three plaintiffs were enemy combatants.

Mitchell and Jessen’s second set of arguments will be that they did not aid and abet the CIA in commission of a crime. Even assuming the CIA’s actions were illegal, the plaintiffs would have to show:

1.    That the defendants provided substantial assistance to the CIA in the commission of the crime; and

2.    The defendants intended to aid and abet the CIA in the commission of these acts.

Regarding the “substantial assistance” element, the defendants argue that their activities fall short of this standard. For a defendant to aid and abet, there must be substantial assistance in the form of finances, strategy, and other types of support that will have a practical and substantial effect on the perpetration of a crime.[6] The psychologists weren’t actively involved in the techniques employed during the interrogation at COBALT. They merely provided the CIA with a list of options for interrogations. In fact, the psychologists did not personally interrogate two of the plaintiffs and one of the psychologists also advised that enhanced interrogation techniques NOT be used on the other. The CIA obtained the prisoners and organized and carried out the techniques and did not seek or need permission to do so from the defendants. They will claim that none of this peripheral involvement rises to the level of “substantial” assistance.

Second, the defendants can argue that they lacked the intent to aid and abet the CIA. To have the requisite intent, Mitchell and Jessen would need to have purposely facilitated a criminal act. The facts demonstrate, however, that the defendants stated that they had no wish to harm the detainees. Moreover, the defendants had received memos from the Department of Justice’s Office of Legal Counsel giving them the impression that the interrogation techniques they developed were legal. This could potentially negate the requisite intent to aid and abet in a crime.

Judge Quackenbush’s decision to allow a jury to resolve these issues puts pressure on all parties to settle the case. Due to the nature and sensitivity of the lawsuit’s subject, an out-of-court resolution may serve both the interest of the United States and those who were detained better than a drawn-out trial and a lengthy appeals process. Negotiations during the next few weeks may be crucial to reaching an accord that balances these interests.