Spokane psychologists turn to Nuremberg trial ruling on Nazi gas killings to defend role in torture

The attorneys defending Spokane psychologists James Mitchell and Bruce Jessen are arguing that the successful defense of the “gas technician” of the firm that developed Zyklon B used by Nazis to kill Jews during the Holocaust should also apply to their clients.

The attorneys for Mitchell and Jessen said the psychologists only provided the CIA with the interrogation techniques – later determined to be torture – and they shouldn’t be held legally responsible for the CIA carrying out those techniques against detainees taken into custody during the war on terror.

As part of their defense, the defense attorneys have noted arguments used in the Nuremberg trials following the end of World War II. The military court held that the German owner and second-in-command of the firm that developed Zyklon B were guilty for providing the poison gas. But the court exonerated the company’s gassing technician.

The court noted that the technician played an integral part in supplying the poison gas, “but this alone could not render him liable for its criminal use even if he was aware that his functions played such an important role in the transfer of gas,” the attorneys for Mitchell and Jessen wrote. “Without influence over this supply, he was not guilty.”

Dror Ladin, one of the attorneys for the American Civil Liberties Union, criticized the defense’s legal argument from the Nuremberg trials in a blog post on Tuesday.

“Making comparisons to the Nazi regime’s murderous use of poison gas is rarely a good idea,” Ladin wrote. “In fact, the Nuremberg tribunals that judged the Nazis and their enablers after World War II established the opposite rule: Private contractors are accountable when they choose to provide unlawful means and profit from war crimes.”

The attorneys are scheduled to appear Friday before U.S. District Court Judge Justin Quackenbush in the civil suit brought by the ACLU on behalf of three detainees, Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and the late Gul Rahmam. The men were suspected terrorists during the early years of the war on terror.

The three men claimed they were tortured based on interrogation techniques designed and sometimes carried out by Mitchell and Jessen. The civil case is scheduled to go to trial in September in Spokane. The two who survived the torture sessions were eventually released when the CIA determined they were not a threat to the United States.

The attorneys defending Mitchell and Jessen acknowledge in court records that the psychologists, who originally taught Survive, Evasion, Resistance and Escape (SERE) techniques at Fairchild Air Force Base, served as independent contractors for the CIA. But the attorneys argued that they lacked the authority to “control, prevent, or modify” the CIA’s use of torture on detainees.

“For instance, even when the defendants wanted to stop waterboarding (Abu) Zubaydah, they had to obtain (headquarters) approval to do so – which was denied,” they wrote. And like the legal cases at the Nuremberg trial, including arguments for the company that produced Zyklon B, “even if defendants played an ‘integral part of the supply and use of the’ (enhanced interrogation techniques) … this too could not render them liable for the CIA’s alleged ‘criminal use’ on plaintiffs.”

Ladin wrote that the tribunal ruled that knowingly supplying something like poisonous gas to the state that was using it for mass extermination “was a war crime, and that the people who did it were war criminals.”

The ACLU filed the suit in 2015 following the partial release of documents in 2014 from the Senate Select Committee on Intelligence’s report on CIA detentions and interrogations.

But attorneys for Mitchell and Jessen have asked Judge Quackenbush to bar that report because it was led by U.S. Sen. Dianne Feinstein, a Democrat from California.

Quackenbush will preside over oral arguments, including the request to bar the Senate report, at 9:30 a.m. Friday, which is expected to be the final hearing before the case proceeds to trial on Sept. 5.