An official recently appointed by the Trump administration to the No. 2 spot in the Central Intelligence Agency is being sought to testify on behalf of two psychologists who created “extreme interrogation” techniques used on suspected terrorists at black prison sites overseas.
But government lawyers argued in Spokane on Friday that allowing CIA Deputy Director Gina Haspel to give a deposition would be a threat to national security.
U.S. District Court Judge Justin Quackenbush indicated that testimony by Haspel, whose February appointment drew fire from human rights critics, may not be needed in the only post-911 torture case to be allowed to go to trial.
The historic civil action, Salim v Mitchell, was filed by the American Civil Liberties Union on behalf of two former suspected terrorists—who say they were wrongly accused and tortured—and the family of another accused suspect who died from mistreatment shortly after his abduction.
Suleiman Abdullah Salim, a Tanzanian fisherman abducted by the CIA in Somalia in 2003, was allegedly tortured and released five years later and told he posed no threat to the United States. Mohammed Ahmed Ben Soud, a Libyan abducted in 2003 and allegedly tortured in Afghanistan, was later rendered to Libya and held until 2011, after the overthrow of the Kadafi regime.
Gul Rahman, also abducted, died after two weeks in CIA custody, chained up and suffering from hypothermia. Rahman was held at a facility in Afghanistan known as the “Salt Pit.”
While the government has not invoked national security in an attempt to dismiss the suit as it has in similar cases, the Department of Justice has now raised the issue to prevent Haspel and a second, former CIA official from testifying, and to block the full or partial release of secret documents.
The testimony and documents are being sought by the defendants, psychologists James Mitchell and John “Bruce” Jessen of Spokane, who devised the interrogation program under contract with the CIA. Their company earned $81 million through a series of government contracts from 2003 until President Obama ended the program in 2009.
The tactics they developed included waterboarding, beatings and stressful, mind-bending experiments with glaring lights and incessant music in attempts to force detainees—including 911 mastermind Khalid Shaikh Mohammed—to talk. He was waterboarded 183 times.
A 2014 Senate investigation concluded that tactic and other techniques failed to elicit any useful intelligence in the U.S. war on terror.
Mitchell and Jessen contend they can’t be sued because they acted under the color of law as a secret but integral part of the CIA. According to court documents and Friday arguments before Judge Quackenbush, Haspel and former CIA official James Cotsana—whom Mitchell and Jessen say were their direct supervisors—can provide support for that argument.
The psychologists’ attorneys say in a court brief that “the Government has refused to permit Cotsana to testify due solely to its unwillingness to permit him to admit or deny his role in the Program. The Government has refused Defendants’ request to depose Haspel for the same reason, even though Haspel’s involvement with the CIA and the Program has now been formally acknowledged due, in part, to her recent promotion to Deputy Director of the CIA.”
Justice Department lawyer Andrew Warden told Quackenbush the U.S. could not confirm or deny whether Haspel or Cotsana helped run the interrogation program. Haspel, however, was outed in a recent New York Times report and is mentioned in a CIA-approved book by former official Jose Rodriguez as a “head of one of [the CIA’s] earliest ‘black sites,’” and as his “chief of staff when [he] led the clandestine service.”
Haspel, who attorneys said ran a secret prison in Thailand, would confirm the psychologists’ direct ties to the CIA if she was allowed to give a deposition, the duo’s lawyers said in court papers and during Friday’s arguments.
The case, at this point, has resulted in some strange bed-fellowing. The government is thwarting the former CIA contractors’ defense attempts while the ACLU is siding with the U.S. in opposing the CIA depositions and release of some documents.
The U.S. says it is compelled to do so by laws that protect government secrets. Dror Ladin, an ACLU lawyer, said his clients are more concerned with the creation of the torture program rather than the officials who oversaw it.
“This case has always been, from day number one, about the design of the program,” he said, “…and how those techniques were used on our clients.”
Trial is currently set to start in September.