In Historic Ruling, US Court Allows Lawsuit Against James Mitchell and Bruce Jessen, Architects of CIA Torture Program, to Proceed

In a hugely significant court ruling on April 22, US District Court Senior Judge Justin Quackenbush, in Spokane, Washington State, allowed a lawsuit to proceed against James Mitchell and John “Bruce” Jessen, the psychologists who designed and implemented the CIA’s post-9/11 torture program. Both men had worked for the military’s SERE program (Survival, Evasion, Resistance, Escape), which trains US personnel to resist torture, if captured by a hostile enemy, by subjecting them to torture techniques to prepare them to resist.

The case was brought by the American Civil Liberties Union (ACLU), on behalf of three victims of the torture program — Gul Rahman, who died, and Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, who are both still alive.

As the ACLU described it, when Judge Quackenbush announced his ruling from the bench, he “gave attorneys in the case 30 days to come up with a plan for discovery, a first in a lawsuit concerning CIA torture.”

ACLU Staff Attorney Dror Ladin, who had argued the men’s case in court, said afterwards, “This is a historic win in the fight to hold the people responsible for torture accountable for their despicable and unlawful actions. Thanks to this unprecedented ruling, CIA victims will be able to call their torturers to account in court for the first time.”

Steven Watt, a Senior Staff Attorney with the ACLU, told The Intercept, “This is amazing, this is unprecedented. This is the first step towards accountability.”

Judge Quackenbush turned down a motion submitted by Mitchell and Jessen, who had argued that the lawsuit should be dismissed because the judiciary could not consider the case. That, they said, was because it was a “political question” that only the executive and legislative branches of government were able to make decisions about. Mitchell and Jessen, as the ACLU put it, “also argued that they have immunity from lawsuits because they were working as government contractors.”

As the ACLU also explained, until this ruling, “every lawsuit trying to hold people accountable for the CIA torture program has been dismissed before reaching the merits because the government successfully argued that letting the cases proceed would reveal state secrets.” A notorious example is the Jeppesen case, in which a number of victims of rendition and torture tried to sue a Boeing subsidiary for its role in their rendition, but were blocked by the government in September 2010 (under Barack Obama), who invoked the “state secrets” doctrine (basically, a blanket argument for secrecy for unspecified reasons of “national security,” which, in reality, cover up crimes or incompetence, or both).

However, in this case, “earlier this month [and] in an unprecedented move,” as the ACLU described it, “the Justice Department filed a ‘statement of interest’ in the case but specifically did not invoke the state-secrets privilege. To the contrary, the government indicated that it would be open to the case proceeding to discovery if certain information is off limits, such as the identities of covert CIA operatives.” The ACLU added that its lawyers believe they “can come to an agreement with the Justice Department on a set of procedures for information that is not relevant to the lawsuit.”

Of the three plaintiffs, the first is the family of Gul Rahman, an Afghan who was tortured to death. As the ACLU explained, “He was an Afghan refugee living in Pakistan with his wife and their four daughters, making a living selling wood to fellow residents of their refugee camp,” but after he was swept up and mistakenly thought to be of significance, “An autopsy and internal CIA review found the cause of death to be hypothermia caused ‘in part by being forced to sit on the bare concrete floor without pants’ with contributing factors of ‘dehydration, lack of food, and immobility due to “short chaining.”‘ The family has never been officially notified of his death, and his body has never been returned to them for burial.” The stories of other prisoners who were killed in Afghanistan can be found in my July 2009 article, When Torture Kills: Ten Murders In US Prisons In Afghanistan.

The second plaintiff is Suleiman Abdullah Salim, a fisherman from Tanzania. As the ACLU explained, “The US military released him over five years after his abduction with a letter acknowledging that he poses no threat to the United States. He now lives in Zanzibar with his wife and his young daughter.” A video of Suleiman speaking about his ordeal, “Here the Rain Never Finishes,” is posted below, via YouTube, and further details of his account are posted below, from the ACLU’s detailed feature about the case, Out of the Darkness.

The third plaintiff is Mohamed Ahmed Ben Soud. As the ACLU described it, “He fled his native Libya in 1991, fearing persecution for his opposition to Muammar Gadhafi’s dictatorship. In 2003, Ben Soud was captured in a joint US-Pakistani raid on his home and sent to two secret CIA prisons in Afghanistan, where he was held and tortured for over two years. Ben Soud saw Mitchell in the first of these prisons, later identifying him as a man present in a room where CIA interrogators were torturing him by forcibly submerging him in ice water. Ben Soud was freed in 2011 after Gadhafi was deposed, and he now lives with his wife and three children.”

Mohamed’s testimony, from “Out of Darkness,’ is also posted below.

The torture to which the men were subjected was detailed in the Senate Intelligence Committee’s report into the CIA’s torture program, of which the damning 500-page executive summary was published in December 2014, playing an important role in facilitating this case, and in ensuring that the government can no longer hide behind towering walls of secrecy to shield itself from calls for accountability. In Mitchell and Jessen’s case, the report spelled out, unambiguously, that they had no expertise whatsoever of real-life interrogations. “Neither psychologist had experience as an interrogator, nor did either have specialized knowledge of al-Qa’ida, a background in terrorism, or any relevant regional, cultural, or linguistic expertise,” the report stated.

The lawsuit was filed in federal court in Washington State, because that is where Mitchell, Jessen & Associates was based, and it is where Jessen still lives. Mitchell and Jessen’s company, as the torture report also revealed, received $81 million for its work, a revelation that disturbed me and angered me to such an extent that I wrote a song about it, 81 Million Dollars, which I performed with my band The Four Fathers on our debut album Love and War.

As the ACLU also explained, “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.”

The ACLU further described Mitchell and Jessen as having “performed illegal human experimentation on CIA prisoners to test and refine the program,” also noting that they “personally took part in torture sessions,” and adding that the torture methods devised by Mitchell and Jessen and used on the three plaintiffs and others included “slamming them into walls, stuffing them inside coffin-like boxes, exposing them to extreme temperatures and ear-splitting levels of music, starving them, inflicting various kinds of water torture, depriving them of sleep for days, and chaining them in stress positions designed for pain and to keep them awake for days on end.” The ACLU added, “The two victims who survived still suffer physically and psychologically from the effects of their torture.”

The ACLU also explained how, “Citing experiments conducted on dogs in the 1960s, Mitchell and Jessen proposed to the CIA a program based on the intentional infliction of intense pain and suffering, both physical and mental.” In the experiments from the 1960s, “dogs were subjected to random electric shocks, and they eventually collapsed into a passive state termed ‘learned helplessness.'” Mitchell and Jessen, groundlessly, claimed that, “if humans were psychologically destroyed through torture and abuse, they would become totally unable to resist demands for information.”

Disgracefully, as detailed in the torture report, and in the excerpts from the ACLU’s report below, “The CIA let Mitchell and Jessen themselves evaluate the effectiveness of their torture in ‘breaking’ detainees, and the agency has since admitted that this was a mistake”; a case of understatement if ever there was one.

Excerpts from the ACLU feature, “Out of Darkness”

The CIA used the music of an Irish boyband called Westlife to torture Suleiman Abdullah in Afghanistan.

His interrogators would intersperse a syrupy song called “My Love” with heavy metal, played on repeat at ear-splitting volume. They told Suleiman, a newly wed fisherman from Tanzania, that they were playing the love song especially for him. Suleiman had married his wife Magida only two weeks before the CIA and Kenyan agents abducted him in Somalia, where he had settled while fishing and trading around the Swahili Coast. He would never see Magida again.

The music pounded constantly as part of a scheme to assault prisoners’ senses. It stopped only when a CD skipped or needed changing. When that happened, prisoners would call to one another in a desperate attempt to find out who was being held alongside them. A putrid smell that reminded Suleiman of rotting seaweed permeated the prison. His cell was pitch black; he couldn’t see a thing. The U.S. government refers to the prison as “COBALT.” Suleiman calls it “The Darkness.”

For more than a month, Suleiman endured an incessant barrage of torture techniques designed to psychologically destroy him. His torturers repeatedly doused him with ice-cold water. They beat him and slammed him into walls. They hung him from a metal rod, his toes barely touching the floor. They chained him in other painful stress positions for days at a time. They starved him, deprived him of sleep, and stuffed him inside small boxes. With the torture came terrifying interrogation sessions in which he was grilled about what he was doing in Somalia and the names of people, all but one of whom he’d never heard of.

After four or five weeks of this relentless pain and suffering, Suleiman’s torturers assessed him as psychologically broken and incapable of resisting them. Suleiman could take no more. He decided to end his life by consuming painkillers he had stockpiled. But as he began to take the pills, guards stormed into his cell to stop him. He was then shackled, hooded, and driven a short distance to another CIA prison close by — a prison Suleiman came to know as the “Salt Pit.” Although Suleiman’s torture would continue for many years more, the very worst of it was over.

A year and two months later, the CIA handed Suleiman over to the U.S. military, which imprisoned him at Bagram, also in Afghanistan. Finally, in 2008, after more than five years in U.S. custody, with no charges ever leveled against him, he was sent home with a document confirming he posed no threat to the United States. His family had heard nothing of him since his disappearance, and they had presumed him dead.

But even once home in his native Zanzibar, Suleiman felt far from free. Constant flashbacks transported him back to his torture at the hands of his CIA captors. After years of near-starvation he was unable to eat normally. He suffered splitting headaches and pain throughout his body from the torture. Prolonged isolation left him unaccustomed to human interaction. Despite repeated attempts, he couldn’t find Magida. Unable to sleep due to the torment of his memories and the physical pain, he found limited solace playing with his family’s rabbits in the middle of the night.

“I was afraid of so many things,” he says in the halting English he acquired in prison. “Everyone thought I’m crazy.”

Suleiman, a reggae-loving fisherman who had once been known as “Travolta” for his prowess on the dance floor, had become a shell of himself.

* * * * *

“That’s him,” Mohamed Ben Soud said earlier this year in a meeting with his lawyer, ACLU Staff Attorney Steven Watt, pointing at a photo of James Mitchell. “He was there.”

Mohamed saw James Mitchell several times while he was imprisoned at COBALT, where the CIA held him for a year following his capture in April 2003 during a joint US-Pakistani raid on his home. Mohamed fled his native Libya in 1991, fearing his persecution for his opposition to the Gaddafi regime. He was living in Pakistan with his wife and infant child at the time of his disappearance. As Human Rights Watch has detailed, a rapprochement between Washington and Gaddafi resulted in Libya supplying the United States with the names of citizens it claimed were terrorism suspects.

Mitchell, Mohamed says, made an appearance at his water torture sessions at COBALT, the same CIA prison where the agency had held Suleiman a month earlier. Mitchell seemed to be observing and supervising the proceedings. That description accords with what we know from the Senate report about the many facets of Mitchell and Jessen’s roles. The CIA didn’t just contract the two to devise and administer the torture program. It also had them evaluating their own theory and work. That included monitoring the application of torture techniques and calibrating them in accordance with their ultimate goal of inducing learned helplessness.

CIA personnel would complain about the conflict of interest inherent in the same people evaluating the effectiveness of techniques from which they were reaping enormous profits. The Senate report quotes a CIA Office of Medical Services memorandum reading:

OMS concerns about conflict of interest … were nowhere more graphic than in the setting in which the same individuals applied an EIT which only they were approved to employ, judged both its effectiveness and detainee resilience, and implicitly proposed continued use of the technique — at a daily compensation reported to be $1800/day, or four times that of interrogators who could not use the technique.

The course of Mohamed’s torture adhered closely to the “procedures” the CIA laid out in a 2004 memo to the Justice Department. Even before arriving at COBALT, Mohamed was subjected to “conditioning” procedures designed to cause terror and vulnerability. He was rendered to COBALT hooded, handcuffed, and shackled. When he arrived, an American woman told him he was a prisoner of the CIA, that human rights ended on September 11, and that no laws applied in the prison.

Quickly, his torture escalated. For much of the next year, CIA personnel kept Mohamed naked and chained to the wall in one of three painful stress positions designed to keep him awake. He was held in complete isolation in a dungeon-like cell, starved, with no bed, blanket, or light. A bucket served as his toilet. Ear-splitting music pounded constantly. The stench was unbearable. He was kept naked for weeks. He wasn’t permitted to wash for five months.

For Mohamed the prolonged sleep deprivation was the most debilitating part of his torture: It drove him close to madness. Mohamed’s torturers kept him awake in many different ways. They chained him in painful stress positions — seated when his broken leg was in a cast, standing once it was removed. Guards banged on his door every hour. Once his broken leg had healed, they added to his torment. Guards would take him from his cell and force him to march around the prison naked for “15 minutes every half-hour through the night and into the morning.” They bombarded him with music. Once, his captors deprived him of sleep for some 36 hours, hanging him naked by his arms from a metal rod where he balanced on the tips of his toes. His legs became engorged with fluid, and he started to hallucinate.

His torturers introduced water torture into their regimen some two weeks after Mohamed arrived in COBALT. They would submerge him naked in ice water, his cuffed hands forced over his head, until a doctor deemed his temperature dangerously low and warm water would be thrown on him. When his cast began to disintegrate from the water, a doctor first covered it in plastic, and when that didn’t work, designed a cast that could be easily removed during the sessions. During later sessions, Mohamed’s torturers placed a hood over his head before he was doused to make him feel like he was drowning.

After some two months of torture in COBALT, Mohamed’s captors stopped the most aggressive phase of his torture, deeming him sufficiently “broken” and “cooperative.” Eight months later, April 2004, Mohamed was transferred to a second CIA-run prison, codenamed ORANGE in the Senate report. He spent the next several months in solitary confinement, chained to the wall when he wasn’t being interrogated. In August 2004, the United States rendered him into the hands of the same Gadaffi government he had fled fearing persecution more than a decade previously. Sentenced to life in prison following an unfair trial, Mohamed eventually won his freedom in February 2011, a day after the start of the revolution that led to Gadaffi’s overthrow. Today, he lives in Misrata, Libya, together with his wife and three young children. Mohamed continues to suffer the effects of his torture at COBALT.  He suffers from hearing loss, a damaged sense of taste and smell, and regular pains in his leg, which he can’t walk on for a significant length of time.

Note: See all the documents about the case here.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album, ‘Love and War,’ is available for download or on CD via Bandcamp — also see here). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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