Given the intense media coverage over Charlottesville, a recent small headline largely escaped notice, but it could have a major impact on how Americans come to terms with the excesses that developed from the “global war on terror.” For the first time, several individuals closely associated with the CIA torture program were about to become answerable in a court of law for “legally aiding and abetting and/or factually aiding and abetting torture,” forcing the government to intervene and come to a settlement of the case.

It is surprising that it has taken this long to reach this point, where one might obtain minimal legal redress for pain and suffering. There should be no question about the legality of torture. It has been universally condemned and banned by both the Geneva and United Nations Conventions for good reasons. It is also illegal under U.S. law and its variations, which have been euphemistically described as “enhanced interrogation techniques” (EIT), have been explicitly banned by the military in its training manuals.  

It is widely recognized that torture is a line that should not be crossed, that it starts out with sleep deprivation or exposure to cold and heat before including simulated drowning and winding up with torn out fingernails and even death. On a practical level, it only is really good at producing confessions to stop the pain, many of which turn out to be false. Information produced by torture has frequently been found to be obtainable by other means and many government interrogators believe that better results are obtained by treating prisoners well. Torture debases and turns sadistic those who carry it out and those who order it. It is a black mark on the government that condones it and it opens the door for other countries and groups to engage in the same or similar practices on American citizens.

The case against the alleged torturers was argued in a federal court in Spokane, Washington, and docketed to go on to a jury trial on September 5. The suit was filed by the American Civil Liberties Union (ACLU) against two CIA psychologists on behalf of three men who were tortured in the agency’s secret prisons between 2002 and 2008. The two psychologists are James Mitchell and John Bruce Jessen, who together in 2001 formed a company called Mitchell, Jessen & Associates that served as the principal CIA contractor for the torture program. The men were tasked with using their professional skills to devise “enhanced interrogation techniques” that would break prisoners and compel them to reveal information on terrorist cells and anticipated operations. The company reportedly also provided interrogators and security for the CIA secret prison “black sites,” and appears to have been involved in the Agency’s rendition program in which suspects were abducted and flown to countries for potential torture.

According to the ACLU, Mitchell and Jessen, former military psychologists, actually devised the “enhanced interrogation techniques” that were later employed in the secret prisons. Their approach was based on reversing the training program that they had developed to help American soldiers taken prisoner survive and resist brutal interrogation by hostile forces. They offered their program to the CIA and, using the behavior models they had developed, convinced senior agency managers that the techniques were practical and would produce significant intelligence. The George W. Bush Department of Justice agreed (in its notorious Yoo memoranda) that the techniques did not constitute torture as they did not necessarily result in organ failure. The two doctors were reportedly paid over $80 million for their services.

Mitchell and Jessen’s defense team argued that the men should be granted the same blanket immunity that is enjoyed by all government officials, since it was a CIA operation and the agency was responsible for selecting subjects for intense interrogation. The defendants observed that while they provided the tools used by the agency in interrogations, they had no influence over how the “enhanced interrogation techniques” would be applied. They also claimed that the procedures used were not intended to cause severe pain or do permanent damage, so they were not technically torture at all.

The ACLU suit was brought under the terms of the Alien Tort Statute which allows foreigners to apply to American courts for justice in those instances where there is illegal activity as defined by international law or treaties that have been entered into by the United States, which have the force of law. In this case, the United Nations Convention Against Torture was cited.

The three former prisoners who were tortured were Mohamed Ben Soud, Suleiman Salim, and Gul Rahman. Ben Soud and Salim survived the experience but Gul Rahman died, frozen to death as part of the interrogation in a black site prison. His surviving family was one of the three plaintiffs. According to testimony, the three men were subjected to sleep deprivation, slamming into walls, confinement in coffins, exposure to extreme temperatures, water boarding, starving, and being chained or hung from the ceiling in stress positions.

A CIA autopsy of Gul Rahman, a married Afghan refugee with four daughters who resided in Pakistan, revealed that he had died after being chained naked to a bare concrete floor in sub-freezing conditions. He also was dehydrated and starving. Salim, a Tanzanian fisherman, was held for five years before being released and given a letter acknowledging that he posed no threat to the U.S. Ben Soud, a Libyan living in Pakistan, was tortured in secret prisons for two years before being released.

The only actual contact that either of the doctors had with any of the plaintiffs occurred when Jessen supervised the interrogation of Gul Rahman. Jessen claimed that he asked the interrogators to provide blankets and clothing for Rahman but was ignored. Rahman, of course, died.

In pre-trial depositions Mitchell and Jessen revealed that one of their earliest applications of EIT was on Abu Zubaydah in a secret prison in Thailand. They traveled to the black site and proceeded to waterboard the prisoner 83 times. When it was clear that the treatment was producing nothing, the team at the prison asked Langley if it could stop, but Jose Rodriguez, who headed the Counterterrorism Center at the time, told them to continue, arguing that if they did not do so a terrorist nuclear bomb would be exploding somewhere in the United States. Mitchell recalled that CIA staff officers referred to the doctors as “pussies” when they expressed reluctance to continue the procedure. Rodriguez later ordered video recordings that were made of the interrogations to be destroyed.

The government acted to settle the case to prevent it from going to trial, where testimony would have made public the extent to which the CIA had engaged in what are generally considered to be war crimes. The actual terms of the settlement were not revealed, but the two doctors will not be directly affected as they were not required to plead guilty. The U.S. government, acting for the CIA, indemnified them and paid for their legal expenses, the plaintiffs’ lawyers, and punitive and compensatory damages.

It is by no means clear whether the current case will serve as a precedent for more lawsuits seeking redress for illegal U.S. government activity during the war on terror. As there was no suggestion that the courts will lift government employees’ immunity from prosecution for actions carried out while on duty, there is little chance that any senior CIA managers will be hauled into court. But it just might be that a door has opened a bit, and the public will find out more about the torture program and those who were directly affected by it. The agency employed many contractors to run the black sites as well as its rendition program, and identifying them might be possible if more sections of the 6,500-page Senate report on torture are ever declassified.

For what it’s worth, Jessen is believed to be somewhat ambivalent about the EIT program that he helped develop. But Mitchell is reported to be proud of his service to the United States. He boasts about the interrogation program and describes himself as the “primary interrogator from its inception.” He is registered with a speakers’ bureau, charges between $15,000 and $25,000 for his services, and offers to provide his insights into “the minds of those trying to destroy America.”