A novel lawsuit seeking to hold Americans liable for complicity in alleged torture may haunt President-elect Donald Trump if he follows through on his pledge to bring back waterboarding “and worse” to fight terrorism.
Two psychologists who designed and personally administered an enhanced interrogation program at overseas CIA facilities in the aftermath of the Sept. 11 attacks face claims that they are responsible for human rights abuses of two former prisoners and a third who died in custody.
If the lawsuit succeeds, it may encourage other prisoners to pursue claims they were tortured in the U.S. war on terrorism, said Dror Ladin, a lawyer for the plaintiffs with the American Civil Liberties Union. The case marks the first time the 228-year-old Alien Tort Claims Act would be used to fix blame for torture on U.S. citizens, unlike previous cases brought against foreigners, he said.
Senior U.S. District Judge Justin Quackenbush said during a hearing Thursday in Spokane, Wash., that he intends to reject the psychologists’ argument they can’t be sued for detention-related claims made by prisoners who were properly held as enemy combatants. They argued they were acting as agents of the CIA.
“I don’t think the facts establish that they were acting as agents of the U.S.,” Quackenbush told lawyers. “The contracts are explicit they were independent contractors.” The judge said he will issue a written ruling later.
On the campaign trail, Trump said he wanted to use waterboarding to extract information from suspected terrorists. After winning, Trump told the New York Times he was surprised to have heard from retired Marine Corps General James Mattis, his nominee for defense secretary, that torture didn’t work as well as sitting down with “a pack of cigarettes and a couple of beers.” His nominee to head the Central Intelligence Agency, Mike Pompeo, came out against waterboarding in his Senate confirmation hearing.
The lawsuit followed the 2014 release of a Congressional report on CIA interrogation techniques that for the first time published the names of the three prisoners and described what they had been through.
The complaint doesn’t name the CIA as a defendant but instead targets the psychologists “whose company made $81 million as private profiteers from torture,” Ladin said in an interview.
The CIA declined to comment on the case. The government is covering legal expenses for the psychologists, James Elmer Mitchell and John “Bruce” Jessen.
“Dr. Mitchell and Dr. Jessen are patriots who answered their government’s call following the catastrophic terrorist attacks of 9/11,” their lawyer, Henry Schuelke, said in a statement. “Their interrogations of the world’s most extreme terrorists were authorized in their entirety by the Department of Justice and led to actionable intelligence that saved countless lives.”
Mitchell stood by his actions in his 2016 book, Enhanced Interrogation, Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America.
Mitchell said he was asked after the Sept. 11 attacks not only to create the program for “rough interrogation techniques,” but also to conduct the interviews.