Testy exchange over CIA records marks hearing in civil torture case against Mitchell and Jessen

A federal judge on Friday in Spokane plowed through legal arguments over secret CIA records to clear a path forward for a civil trial against two psychologists who helped develop the government’s interrogation techniques used against the detainees in the war on terror.

The hearing was the latest in the suit brought by the American Civil Liberties Union on behalf of three men, one of whom died in custody, who were subjected to what they considered torture. The actions in question were directed, and sometimes carried out, by former Spokane psychologists Bruce Jessen and James Mitchell. The trial is currently set to begin Sept. 5 in Spokane.

U.S. District Court Judge Justin Quackenbush opened the hearing, in which attorneys outnumbered people in the gallery 12 to three, by asking one of the defense attorneys, Henry Schuelke, whether he had watched the developments Thursday night in Washington, D.C.

“I try not to pay attention to it,” Schuelke responded. After an uncomfortable pause, Quackenbush said: “I meant the (Washington) Wizards.”

“Oh, I thought you meant the Congress,” Schuelke said to laughter.

The levity was short-lived. Quackenbush reminded the attorneys – including four from the ACLU – that the true purpose of the case was to determine whether Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and the late Gul Rahman were subjected to torture based on interrogation techniques designed by Mitchell and Jessen.

“Despite the public interest in this case, the people we all need to pay attention to are the plaintiffs in this case, who have allegedly been tortured,” Quackenbush said, “rather than making this the cause célèbre … about torture and waterboarding.”

Rahman, an Afghan, was taken from his home in Pakistan in November 2002 to a secret CIA prison. He died of hypothermia several weeks later after being shackled to a floor in near-freezing conditions.

According to the lawsuit, Salim and Ben Soud both suffered waterboarding, daily beatings and sleep deprivation while inside CIA “black sites.” Both men were later released after officials determined that they posed no threat to the United States.

A U.S. Senate investigation in 2014 found that Mitchell and Jessen’s techniques produced no actionable intelligence in the war on terror.

The civil suit filed by the ACLU, however, has turned into a quagmire of legal arguments, as the government seeks to keep certain records secret while Mitchell and Jessen argue that the same secrecy is preventing them from mounting an adequate defense.

“Now as I start my 38th year here … I do not recall another case, civil or criminal, where there was this number of pretrial discovery motions,” Quackenbush said.

The attorney who argued on behalf of Mitchell and Jessen, Brian Paszamant, again asked Quackenbush to authorize depositions of CIA officials Gina Haspel and James Cotsana, who he said were his clients’ immediate supervisors in the interrogation program.

“We felt from the outset, to defend ourselves, we needed documents from the government,” Paszamant said. “You have an obligation … to look with a skeptical eye to see if the privilege has been asserted too broadly.”

The most contentious moment of the hearing came when Quackenbush ordered Andrew Warden, of the Justice Department, to provide a list of documents relating to Haspel and Cotsana.

“I cannot do that in open court,” Warden said. “I’m not confirming they are in the documents or not.”

“I’m running this court. Not you, Mr. Warden,” Quackenbush said. “I’m directing you to identify which documents” relate to Haspel and Cotsana. “I think that is the most important matter here today.”

“I cannot do that without prejudicing our case,” Warden responded.

However, ACLU attorney Dror Ladin said depositions of Haspel and Cotsana would have no bearing on the interrogation program in which the government paid Mitchell and Jessen some $81 million.

“It’s never been a defense in a torture or war crimes case to say I was just following instructions,” Ladin said. “This case has always been about the defendants designing the program … and those techniques being used against our clients.”

After Warden found a way for Quackenbush to review a series of records, some of which will be done next week, the judge reminded the attorneys of the immense fees for government time and the cost of the defense for Mitchell and Jessen that eventually will be passed onto taxpayers.

“I speak for the families of the decedent and the plaintiffs,” Quackenbush said. “It is in their best interests, and in the government’s best interest, to sit down and seriously discuss a resolution to this case.”