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An artist's intepretation of prisoner mistreatment, because the real photos may never be released. 'A reminder of those still being held indefinitely at Guantanamo Bay, Bagram, and other detention centers around the globe,' reads the subtitle of the photo called 'Indefinite Detention.' (Photo: Justin Norman / cc / flickr)

ACLU Lawyers Will Get to Question Ex-CIA Officials in Torture Case

Dror Ladin

 by Speak Freely / ACLU

In a critical step towards accountability, a federal judge has ordered that former high-ranking CIA officials will have to sit for depositions in the lawsuit against the two psychologists who designed and implemented the CIA torture program.

Two of the officials are John Rizzo and Jose Rodriguez, who both held top positions when the torture program was developed and carried out. Rizzo was the CIA’s chief lawyer, and Rodriguez was the head of the CIA Counterterrorism Center and then deputy director of operations. The depositions are expected to happen in the next few months as part of the discovery process, which will be completed by mid-February.

The case was brought by the American Civil Liberties Union on behalf of three men — Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, Gul Rahman — who were tortured using methods developed by the CIA-contracted psychologists, James Mitchell and John “Bruce” Jessen.

Rizzo was the CIA’s acting general counsel for much of the George W. Bush administration. President Bush nominated him to be confirmed in the position in 2007 but was forced to withdraw the nomination amid objections over Rizzo’s involvement in the torture program. Rizzo went along with the now-discredited Justice Department Office of Legal Counsel memos that purported to approve torture, privately acknowledging the OLC’s “ability to interpret over, under and around Geneva, the torture convention, and other pesky little international obligations.” Rizzo also helped draft Bush’s still-secret order authorizing the CIA to establish secret detention facilities overseas and to interrogate detainees.

Rodriguez has repeatedly defended the CIA’s torture of detainees and played an integral role in the program from the start, authorizing the use of specific abusive methods on detainees. In 2005, over the objections of the White House and Congress and in violation of a federal court ruling, Rodriguez ordered the destruction of more than 90 videotapes that showed the torture of detainees through waterboarding and other methods.

The depositions were requested by Mitchell and Jessen, who have also asked the government to turn over a large number of documents relating to the torture program. The ACLU says that all of the information it needs to win the lawsuit is already public, mainly thanks to official government reports, including the Senate’s report on CIA torture. But the ACLU attorneys will still get to question Rizzo, Rodriguez, and two others, who will be under oath.

James Mitchell and Bruce Jessen

Mitchell and Jessen are being representing by private attorneys. The Justice Department is involved in the case to represent the government’s interests in keeping classified information secret. It sought an order that would have barred oral questioning of the CIA officials. During a hearing on the order last Thursday, Justice Department attorney Andrew Warden said:

“It is, frankly, unprecedented — and that word gets thrown around quite a bit — but unprecedented for the nation’s top spy, the head of the National Clandestine Service, to be deposed on operational information by a private party. I don’t think that’s ever happened in the history of this country.”

U.S. District Court Senior Judge Justin Quackenbush issued the decision on Tuesday. He also ordered the government to produce certain documents requested by Mitchell and Jessen, while focusing discovery on the issues identified by ACLU attorneys. A trial date has been set for June 26, 2017, and the judge has been adamant about staying on schedule. In his opinion, the judge wrote:

“The court intends to hold firm to the scheduled dates and it would be completely inappropriate for the Government and the Defendants to take actions, or fail to act, in a manner that would interfere with the court's schedule or the right of the Plaintiffs to have their claims resolved in accordance with the Scheduling Order.”

According to the Senate Intelligence Committee’s investigation into the torture program, Mitchell and Jessen helped convince the CIA to adopt torture as official policy, making millions of dollars in the process. The two men, who had previously worked as psychologists for the U.S. military, designed the torture methods and performed illegal human experimentation on CIA prisoners to test and refine the program. They personally took part in torture sessions and helped implement the program for the CIA.

Suleiman Abdullah Salim

Torture methods devised by Mitchell and Jessen and inflicted on the three men include slamming them into walls, stuffing them inside coffin-like boxes, exposing them to extreme temperatures, starving them, inflicting various kinds of water torture, and chaining them in stress positions designed for pain and to keep them awake for days on end. The two plaintiffs who survived still suffer physically and psychologically from the effects of their torture. The third, Gul Rahman, died of hypothermia in a CIA secret prison.

In addition to torturing prisoners themselves, Mitchell and Jessen trained and supervised other CIA personnel in their methods. In 2005, they founded a company — Mitchell, Jessen & Associates — that the CIA contracted with to run its entire torture program, including supplying interrogators and security for black sites and rendition operations. According to the Senate report, the government paid the company $81 million over several years.

The lawsuit was filed in federal court in Washington State, where Mitchell, Jessen & Associates was based and where Jessen still lives. The plaintiffs are suing Mitchell and Jessen under the Alien Tort Statute — which allows federal lawsuits for gross human rights violations — for their commission of torture; cruel, inhuman, and degrading treatment; non-consensual human experimentation; and war crimes.

For years, claims of secrecy shut the courthouse doors to survivors, but the systematic abuse of prisoners can’t be swept under the rug forever. This order affirms that our judicial system can handle claims of CIA torture, including when those claims involve high-level government officials.

© 2021 ACLU
Dror Ladin

Dror Ladin

Dror Ladin is a staff attorney at the ACLU National Security Project, and was previously a Skadden Fellow at the ACLU Immigrants' Rights Project. Prior to joining the Immigrants' Rights Project, Dror clerked for the Honorable Kim McLane Wardlaw of the U.S. Court of Appeals for the Ninth Circuit, and worked as a fellow at the ACLU National Security Project and as an associate at Cleary Gottlieb Steen & Hamilton. He graduated Phi Beta Kappa from Vassar College, and received his J.D. from Yale Law School.

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