VICE News, Tuesday 13 October 2015 7:05am
The American Civil Liberties Union (ACLU) filed a federal lawsuit Tuesday on behalf of three former CIA detainees accusing psychologists James Elmer Mitchell and John "Bruce" Jessen, the contractors who designed the agency's post-9/11 so-called "enhanced interrogation" program, of torture, non-consensual human experimentation, and war crimes.
Though plaintiffs Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Gul Rahman were all abducted and held in CIA prisons in Afghanistan, none of the men was ever charged with a crime. Salim and Ben Soud are now free and live with their families. Rahman died in a CIA prison in 2002.
"An autopsy report and internal CIA review found that Mr. Rahman likely died from hypothermia caused 'in part from being forced to sit on the bare concrete floor without pants,' with the contributing factors of 'dehydration, lack of food, and immobility due to "short chaining,"'" the ACLU lawsuit says.
According to the ACLU's complaint, Mitchell and Jessen, who operated a firm that was paid $81 million over four years by the CIA, "helped convince the agency to adopt torture as official policy." The ACLU said the civil lawsuit is the first to be filed against Mitchell and Jessen since the Senate Intelligence Committee released an executive summary from its 6,000-page CIA torture report last year. But it's actually the second lawsuit targeting the torture architects.
Last December, California civil rights attorney Stephen Yagman quietly filed a false claims act lawsuit against Mitchell and Jessen in an effort to recover the $81 million they were paid for their work for the CIA. That lawsuit was dismissed earlier this year. (Yagman is the plaintiff in the suit; he was stripped of his law license in 2010 after being convicted of tax evasion.)
"[Plaintiffs] were subjected to solitary confinement; extreme darkness, cold, and noise; repeated beatings; starvation; excruciatingly painful stress positions; prolonged sleep deprivation; confinement in coffin-like boxes; and water torture," according to the ACLU lawsuit. "Defendants are directly liable because they experimented on Plaintiffs by seeking to induce in them a state of 'learned helplessness' to break their will by means of torture and cruel, inhuman, and degrading treatment."
"The nature of what they did," Dror Ladin, a staff attorney with the ACLU's National Security Project, said of Mitchell and Jessen, "has been banned since Nuremberg."
Mitchell did not respond to VICE News' requests for comment, and the CIA declined to comment on the ACLU's lawsuit. But in exclusive interviews with VICE News last year, Mitchell acknowledged there "were some abuses that occurred" within the program.
He also said the Senate Intelligence Committee failed to acknowledge in their report that he and Jessen were the unnamed interrogators who raised many of the concerns about "abuses" and "unauthorized techniques" that were used on detainees. Moreover, Mitchell said he is one of the interrogators who reported abuses to the CIA's inspector general against rogue interrogators, which sparked an internal review of the CIA program.
Mitchell first disclosed to VICE News that he personally waterboarded three high-value terrorism suspects detained by the CIA. He said the "whole point of the waterboard was to induce fear and panic."
"We didn't think [detainees were] going to provide actionable intelligence in a state of fear and panic," he said. "You have to start the session with the waterboarding, but the questioning happens the next time you come in the room. It's like any sort of thing you fear: The closer you get to it the next time, the more you struggle to get out of it and find an escape. So the moment [a detainee] was most susceptible to beginning to provide information was just before the next waterboarding session. Not in the original one."
He added: "The interrogations I engaged in were monitored in real-time by medical personnel and leadership who could have stopped what I was doing at any time. I was never told I was doing anything outside of authorities. I was told for years that my activities had saved lives and prevented attacks."
Doctors' involvement with various forms of torture has been a dark tradition of sorts, said Leonard Rubenstein, director of the Program on Human Rights, Health, and Conflict at Johns Hopkins University.
In some countries, doctors have served as advisors to help figure out how far a prisoner could be pushed without being killed, Rubenstein said. In Iraq, army deserters routinely had ears cut off and eyes gouged out by doctors working for Saddam Hussein. In the 1950s and 60s, US doctors helped the CIA design its now-discredited "mind control" programs, parts of which involved unwitting American citizens being dosed with LSD. This, Rubenstein believes, created part of the basis for the tactics that Mitchell and Jessen formalized decades later.
"Mitchell and Jessen were sort of the masterminds of torture for the United States," Rubenstein said. "Whether or not they actually tortured these three plaintiffs personally, I think they can certainly be held responsible for creating the program that other people then executed."
Nevertheless, the system has so far "lacked the judicial fortitude to do anything about it," said Dr. Steven Miles, a professor of medicine and bioethics at the University of Minnesota Medical School.
By Miles's count, more than 105 detainees in custody of the CIA and Department of Defense have died during interrogations, but no one has ever so much as been publicly reprimanded for it. All previous legal actions have stalled, and the American Psychological Association (APA) — a report the APA itself commissioned found that top officials at the organization ignored their ethics code at the behest of the Bush administration — has maintained that Mitchell and Jessen remain "outside the reach of the association's ethics adjudication process."
But even if the case gets thrown out, Miles believes it is crucial to keep trying.
"Fundamentally, this is a civil rights issue," he said. "Remember how many lawsuits were brought before we finally dismantled Jim Crow."
Though the executive summary of the Senate torture report prompted the ACLU's suit, the summary was released "with the names of virtually every health professional redacted," said Widney Brown, director of programs at Physicians for Human Rights (PHR).
Getting details like those will be important according to Captain Michael Schwartz, a United States Air Force lawyer who represents high-value Guantanamo detainee Walid bin Attash. However, Schwartz believes the ACLU's odds of obtaining any truly meaningful evidence are near zero.
"To say the experience I've had litigating against, essentially, the CIA, has been an uphill battle doesn't really capture how difficult it actually is," he said. "My case is going nowhere. It's been four years of pretrial litigation; we've essentially made no headway at all."
Even if the ACLU's lawsuit is permitted to proceed past the initial stages, Schwartz doesn't believe much information will be made public. To establish Mitchell's and Jessen's liability, and for the ACLU to recover damages for their clients, Schwartz said the identities of people "who unquestionably committed war crimes" would have to be exposed.
"I have spent the last four years trying to get that same sort of information on behalf of a capital defendant," he said. "If someone facing the death penalty doesn't have a right to it, it's hard to imagine the plaintiffs in a civil suit will."