Abu Zubaydah and the Case Against Torture Architect James Mitchell

Attempts to call to accountability any of the architects of the Bush administration's torture program have so far been depressingly unsuccessful. First, any hopes that President Obama would lead the way were dashed when, even before taking office, the President-Elect declared "a belief that we need to look forward as opposed to looking backwards." Then, in January this year, the best hope to date -- the final report of a four-year internal investigation into the Justice Department lawyers who wrote the "torture memos" in 2002 and 2003 that purported to redefine torture so that it could be practiced by the CIA, and later by the US military -- was shattered when a senior Justice Department official was allowed to override the report's damning conclusions, declaring that, instead of facing disciplinary measures for "professional misconduct," the men in question -- John Yoo, now a professor at Berkeley, and Jay S. Bybee, now a judge in the Ninth Circuit Court of Appeals -- had only exercised "poor judgment."

The actions of that official, David Margolis, were disgraceful, because bending the law out of shape in an attempt to justify the use of torture is clearly illegal, and is particularly distressing when the lawyers involved were working for the Office of Legal Counsel, the department within the Justice Department that is obliged to render impartial legal advice to the Executive branch. The report's authors made it clear that Yoo "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice," and that Bybee "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice."

However, they also indicated that Yoo and Bybee were not acting alone, as, for example, when they noted that they "found evidence" that the men "tailored their analysis to reach the result desired by the client" -- in other words, former Vice President Dick Cheney, who is mentioned as putting "great pressure" on the OLC regarding three revised memos defending the use of torture, which were issued in May 2005 by Acting Assistant Attorney General Stephen Bradbury (who largely escaped censure in the report), and Cheney's Legal Counsel, David Addington, and White House Deputy Counsel Tim Flanigan, who are mentioned in relation to the original "torture memos" of August 1, 2002. Unsurprisingly, these men were key players in what Philippe Sands (in his book Torture Team) identified as a "War Council" of lawyers who met regularly to plan and implement the legal strategies they wanted for the "War on Terror" -- largely without any outside consultation -- which consisted of just six men: Addington, Flanigan, Yoo, White House Counsel Alberto Gonzales, William J. Haynes II, the Pentagon's General Counsel, and his deputy, Daniel Dell'Orto.

The complaint against Dr. James Mitchell

Last Wednesday, however, a new front in the search for accountability opened up, when Texan psychologist Jim L.H. Cox, Ph.D., assisted by Dicky Grigg, a lawyer in Austin, Texas, and Joe Margulies of Northwestern University School of Law in Chicago (who has been involved in the Guantanamo litigation since the prison opened in January 2002) filed a complaint to the Texas State Board of Examiners of Psychologists regarding another architect of the torture program, James Elmer Mitchell (PDF).

The complaint, which accuses Mitchell of numerous grave violations of his duties as a practicing psychologist, ought to be explosive, because Mitchell, along with a colleague, John "Bruce" Jessen, devised the horrendous experimental program that was used on Zubaydah, after his capture in Pakistan on March 28, 2002, and his subsequent rendition to a secret CIA facility in Thailand, which, on August 1, 2002, was ostensibly approved by John Yoo and Jay S. Bybee in their "torture memos." Explaining Mitchell's role in Zubaydah's torture, the complaint stated:

[Mitchell] ordered that Zubaydah be chained to a chair for weeks on end; that he be whipped by the neck into concrete walls; that he be stuffed into a small, black box and left for hours; that he be hung naked from the ceiling; that he be kept awake for 11 consecutive days, and sprayed with cold water if he dozed. But the torture designed by Dr. Mitchell was about to pass to another level. It was time to implement the final stage of Dr. Mitchell's program.

Abu Zubaydah lay strapped to a gurney specially designed to maximize his suffering. His feet were above his head, just as Dr. Mitchell had ordered. His hands, arms, legs, chest, and head were restrained by heavy leather straps. As Zubaydah lay helpless, Mitchell and his subordinates placed a black cloth over his face and began to pour water onto the cloth. Rivers of water ran up Zubaydah's nose and down his throat. He could not breathe. Panic gripped him as he began to drown. And when Mitchell sensed that Zubaydah dangled on the precipice between life and death, he ordered that the board be raised. Zubaydah expelled the water in a violent, racking spasm of coughing, gurgling and gasping. But before Zubaydah could catch his breath, Dr. Mitchell repeated the experiment. Then he did it again. And again. According to the United States Government, Abu Zubaydah was waterboarded 83 times in August 2002 alone.

Mitchell's purported expertise in interrogations came from his involvement as a psychologist in the US Air Force's SERE program (Survival, Evasion, Resistance and Escape). Similar programs are run by the Army and the Navy, and, as the Senate Armed Services Committee explained in a damning report on the abuse of detainees, issued in December 2008 (PDF), they involve teaching US personnel "to withstand interrogation techniques considered illegal under the Geneva Conventions," which are "based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions." As the Committee proceeded to explain, the techniques used include "stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures." In some circumstances, they also include waterboarding.

How the torture program was developed

James Mitchell retired from the SERE program in May 2001, after 13 years' service, but, as the complaint noted, after the September 11 attacks, he "saw an opportunity to sell his independent consulting services to the CIA." According to the CIA Inspector General's "Special Review: Counterterrorism Detention and Interrogation Activities (September 2001 - October 2003)," another important document analyzing the perceived successes and failures of the torture program, which was issued in May 2004 but was only made publicly available (in a heavily redacted form) last August (PDF), Mitchell's involvement in developing the program began in December 2001, when, in collaboration with a Department of Defense psychologist who also had SERE experience -- John "Bruce" Jessen - he was "tasked ... to write a paper on Al-Qaeda's resistance to interrogation techniques."

As the New York Times explained last August, Jessen was the SERE psychologist at the Air Force SERE school in the 1980s, but when he "moved in 1988 to the top psychologist's job at a parallel 'graduate school' of survival training, a short drive from the Air Force school," Mitchell "took his place." The two men became friends, but the Times profile noted that, although "many subordinates considered them brainy and capable leaders, some fellow psychologists were more skeptical." Two colleagues recalled that, at an annual conference of SERE psychologists, Mitchell "offered lengthy put-downs of presentations that did not suit him," and Jessen ran into trouble when he moved from being a supervising psychologist to a mock enemy interrogator. According to colleagues, he "became so aggressive in that role" that they "intervened to rein him in, showing him videotape of his 'pretty scary' performance."

This should have been an early warning sign for Jessen of the dangers of what the Senate Armed Services Committee report identified as "behavioral drift, which if left unmonitored, could lead to abuse of students," and which, in a real-world scenario, involving alleged threats to the national security of the United States, was even more likely to occur. However, Jessen and Mitchell failed to pay it any attention, and in December 2001, despite having no experience whatsoever of al-Qaeda or of real-life interrogations, the two men produced a paper entitled, "Recognizing and Developing Countermeasures to Al-Qaeda Resistance to Interrogation Techniques: A Resistance Training Perspective," which clearly met with approval. As the CIA IG report continued, "Subsequently, the two psychologists developed a list of new and more aggressive EITs ["enhanced interrogation techniques"] that they recommended for use in interrogations."

The techniques recommended by Mitchell and Jessen included slamming prisoners into walls, cramped confinement, the prolonged use of painful stress positions, sleep deprivation for up to 11 days at a time, and waterboarding, and, as the New York Times explained last August, by early 2002, Mitchell was consulting with the CIA's Counterterrorist Center, where director Cofer Black, and chief operating officer Jose A. Rodriguez Jr. were "impressed by his combination of visceral toughness and psychological jargon." One witness said Mitchell "gave the CIA officials what they wanted to hear," and by the end of March, when Abu Zubaydah was seized, "the Mitchell-Jessen interrogation plan was ready."

This was in spite of numerous criticisms identified in the complaint filed last week, and in the Senate Armed Services Committee report. One of Mitchell and Jessen's most prominent critics is Air Force Colonel Steve Kleinman, described in the complaint as "a former colleague at SERE who was also a career military interrogator with training in intelligence". Col Kleinman stated that:

[W]hen Dr. Mitchell and Dr. Jessen became involved in CIA interrogations, "that was their first step into the world of intelligence ... Everything else was role-play." "What [Dr. Mitchell and Dr. Jessen] failed to understand was they were stepping out of their area of expertise," yet they nonetheless promoted themselves as offensive interrogation experts despite the "disconnect between the SERE model, a resistance model, and an actual interrogation for intelligence purposes."

Col. Kleinman has also stated, "I think they have caused more harm to American national security than they'll ever understand," and other high-level criticism has come from Michael Rolince, the former section chief of the FBI's International Terrorism Operations, who described the methods employed by Mitchell and Jessen as "voodoo science."

The importance of the timing of Mitchell's involvement

The exact timing of Mitchell and Jessen's involvement in developing the program is crucial, although it is not addressed in the complaint, because it is clear from the Senate Armed Services Committee report into detainee abuse that, in December 2001, William J. Haynes II, the Pentagon's General Counsel (and a protege of Vice President Dick Cheney), had begun soliciting advice from the Joint Personnel Recovery Agency (the DoD agency responsible for the SERE program). As the New York Times reported last August, that same month Mitchell's involvement seems to have begun when he was invited as a member of "a small group of professors and law enforcement and intelligence officers," including CIA psychologist Kirk M. Hubbard, who "gathered outside Philadelphia at the home of a prominent psychologist, Martin E. P. Seligman, to brainstorm about Muslim extremism." As the Times also explained, to the later horror of Seligman, who had pioneered the notion of "learned helplessness" -- whereby animals were taught through mistreatment that resistance was futile -- Mitchell told him how much he admired his work, which, of course, fed directly into his plans for terrorist suspects captured in the "War on Terror."

The timing is central, because it is necessary to understand that Mitchell and Jessen -- though fired up by their own enthusiasm for reverse engineering SERE techniques -- were not acting alone, and were, in effect, exactly the kind of individuals that Haynes, other members of the "War Council" and Cheney were already looking for.

I stress this point because, otherwise, the impression given by the complaint filed last week may be that Mitchell and Jessen acted independently, when, like the lawyers in the Office of Legal Counsel, they were clearly part of a program that was endorsed at the highest levels of the administration.

Mitchell's numerous ethical violations

Nevertheless, in dealing specifically with James Mitchell's role as one of the two key architects of the torture program, the complaint filed last week is devastating. As the authors of the complaint explained, "Dr. Mitchell has sullied his profession by violating the standards demanded by the Psychologists' Licensing Act and the Board's Rules of Practice," specifically because he "misrepresented his professional qualifications and experience to the Central Intelligence Agency" in order to "achieve his ultimate plan of implementing a brutal interrogation and torture regime"; because he "designed this torture regime only by ignoring the complete lack of a scientific basis for the regime's safety and -- assuming its safety -- its effectiveness"; and, "most ominously," because he "himself tortured prisoners held in US custody and directly supervised others who engaged in torture at his direction."

The complaint is worth reading in its entirety, partly because of its detailed explanations of Mitchell's unprofessional activities, as, for example, when the authors note that, "At no time prior to implementing these programs did Dr. Mitchell conduct experiments, publish research about offensive interrogation techniques, or subject his theories to peer-review in a publicly-available forum," and that his "failure to verify his interrogation regime using scientifically sound, empirical methods therefore constitutes direct violations of the Board's Rule of Practice requiring licensees to rely on scientifically and professionally derived knowledge when making professional judgments and the Rule requiring licensees to take reasonable steps to ensure the safety of others involved in emerging fields of study."

Why this story is bigger than Dr. James Mitchell

Moreover, the complaint also covers extensively what was actually involved in the torture of Abu Zubaydah, beyond the short summary at the start of this article, and leaves some tantalizing unanswered questions regarding the involvement of the CIA in developing the program. According to the CIA Inspector General's 2004 report, the CIA's Office of Medical Services (OMS) "was neither consulted nor involved in the initial analysis of the risk and benefits of EITs," and claimed that "the reported sophistication of the preliminary EIT review was exaggerated, at least as it related to the waterboard, and that the power of this EIT was appreciably overstated." The OMS also stated that "there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators [Mitchell and Jessen] was either efficacious or medically safe."

This sounds plausible, but it could indicate an explicit attempt by the CIA -- or the OMS, at least -- to distance itself from the program as early as 2004, given that the Inspector General concluded the report by stating, "The Agency faces potentially serious long-term political and legal challenges as a result of the CTC [Counterterrorism Center] Detention and Interrogation Program, particularly its use of EITs and the inability of the US Government to decide what it will ultimately do with terrorists detained by the Agency."

In 2004, when Abu Zubaydah and 27 other supposed "high-value detainees" were held in secret CIA prisons, that last concern must have weighed heavily. It is no less significant now, even though 14 of the men in question, including Zubaydah, are now held in Guantanamo, and this is not only because the whereabouts of 13 others are unknown (and one, Ibn al-Shaykh al-Libi, died in mysterious circumstances last May, having been returned to Libya), but also because the Obama administration has no idea what to do with Abu Zubaydah, the "guinea pig" for the torture program, who, after his horrendous treatment, was revealed not as a significant al-Qaeda leader, but as a mentally-damaged training camp facilitator, whose relationship with al-Qaeda was, at most, minimal.

When it comes to passing the buck for implementing torture, however, the CIA is also on shaky ground. In the complaint filed last week, James Mitchell was rightly targeted for his deeply disturbing role as a psychologist who spurned his professional obligations when, as the authors state bluntly, he "tortured prisoners in US custody," but as is clear from the complaint and from other reports mentioned above, those involved in the program included senior CIA officials -- director George Tenet, CTC director Cofer Black, and CTC chief operating officer Jose A. Rodriguez Jr. -- as well as former Vice President Dick Cheney and the members of his "War Council" -- David Addington, Alberto Gonzales, Tim Flanigan, John Yoo, William J. Haynes II and Daniel Dell'Orto -- and other senior administration officials identified in the Senate Armed Services Committee's report into detainee abuse, including former President George W. Bush and former defense secretary Donald Rumsfeld.

If there is to be any accountability for those who played a part in the introduction of a widespread US torture program whose brutal inefficiency both started with and was demonstrated through the torture of Abu Zubaydah, the compliant filed last week against Bruce Mitchell ought to revive demands for a thorough investigation. To paraphrase President Obama, an investigation would need to look backwards so that America can look forward again without having to hide the dark truth about torture that continues to infect the way America views itself, and the way it is perceived by other countries -- and the only way to do that is to hold the Bush administration's torturers to account.