By Maria L. La Ganga
CIA torture victims who were subjected to some of the most brutal interrogation techniques of post-9/11 era
A federal judge in eastern Washington state ruled Friday for the first time ever that a civil lawsuit brought by victims of the CIA torture program can move forward.
After hearing attorneys for the two contract psychologists who created the torture program post up against American Civil Liberties Union (ACLU) lawyers representing three victims of the program’s most brutal techniques, senior federal judge Justin L Quackenbush said he could not dismiss the case.
“I cannot summarily dismiss the complaint plaintiffs have filed,” Quackenbush said before the two-hour hearing had even ended. “It’s thorough to say the least. On its face, the complaint alleges not only aiding and abetting but participation and complicity in the administration of this enhanced interrogation program.”
Attorneys for the three victims – one of whom froze to death while being tortured at a CIA black site – were jubilant and a little disbelieving after the hearing ended Friday.
“This has never happened before,” said Hina Shamsi, director of the ACLU’s national security project. “There have been so many cases brought by torture victims, Iraq, Afghanistan, elsewhere, and not one of them has been able to go forward for shameful reasons. This is a very big deal for our clients.”
The ACLU filed the suite on behalf of Suleiman Abdullah Salim, a Tanzanian fisherman; Mohamed Ahmed Ben Soud, a Libyan who was living in exile from Muammar Gaddafi’s regime; and Gul Rahman, an Afghan refugee who died of hypothermia while undergoing so-called “enhanced interrogation”.
Although they were held for years and subjected to what their lawsuit describes as “war crimes”, the three men were never accused of being members of al-Qaida. They were never charged with any crimes. They were left with serious psychological and physical injuries but have received no compensation from the US government.
The victims’ civil lawsuit alleges that psychologists James Elmer Mitchell and John “Bruce” Jessen, independent contractors hired by the CIA, designed a brutal torture program that amounted to a “joint criminal enterprise”.
Over the course of five years, 119 men were abused using their techniques; the three plaintiffs in the suit were among the 39 subjected to the most harsh torture and scientific experimentation, which included anal penetration, mock execution, being doused with icy cold water, and enduring something akin to waterboarding.
In 2012, the Department of Justice announced that CIA officials responsible for the torture regime would not face criminal charges.
The case opened with Quackenbush asking whether it mattered who made the decisions in the torture program.
“Is there evidence in this case that the president of the United States of America specifically authorized the activities?” he asked.
James Smith, attorney for the defendants, responded: “Ultimately the CIA was authorized by the president of the United States to take these actions.”
Quackenbush pressed about whether the president had actually given the orders.
Smith: “I haven’t had the opportunity to take depositions in this case.”
Quackenbush expressed annoyance that neither the attorneys for the psychologists nor the victims had read the contract between the CIA and the torture program’s architects, implying that the document would possibly clear up critical questions, including who picked the victims, who decided which techniques to use, and who was in charge.
The mysterious contract loomed large throughout the proceedings in department 903, where the defendants had three grey-suited attorneys present, the plaintiffs had four and a single lawyer sat alone at a table representing the DoJ.
Neither the two living plaintiffs nor the two defendants were present.
ACLU attorney Dror Ladin argued that “even if they produce a contract ... the decisions implicated by that contract are not beyond this court’s ability to review. … It would be premature to decide whether they were acting 100% within the letter.”
And he insisted that “what defendants seek in dismissing this case is a blank check ... nowhere in the authorization for the use of military force does it say you may torture prisoners.”
Quackenbush responded: “But if the military tortured people there is no civil remedy” like the one the three men who filed the suit are seeking.
Ladin told the court that Mitchell and Jessen “were not part of any military chain of command. They were independent contractors selling their expertise to the CIA. ... This is not a case about combat. It’s about three men who were kidnapped in foreign countries.”
As the case moved one step closer to a possible trial, Quackenbush ordered attorneys for both sides and the DoJ to come up with a plan in the next 30 days that would guide evidence collection; depositions of the victims, the psychologists and others; and the handling of classified information.
“The judge has said these are claims that can go forward,” said a delighted Ladin. “They will be decided on the facts of this case, which has never happened.”