The Trump administration has invoked executive powers in a bid to block the testimony of several top CIA officials in a federal lawsuit against two psychologists who helped run the agency’s harsh interrogation program, along with portions of 172 internal agency documents.
Hoping to prevent the officials, including Gina Haspel, the agency’s new deputy director, from being forced to testify, the administration is using the state secrets privilege, which means the executive branch is asking the judge in the case to keep information out of court by asserting that its disclosure would damage national security.
The government rarely tries to use the extraordinary power, and this is among the first assertions of it by the Trump administration. At an earlier phase of the case in U.S. District Court in Spokane, Washington, the Obama administration did not invoke the privilege — although in court filings last year, it did leave the door open to doing so at a later stage.
The lawsuit was filed in 2015 by two former detainees at CIA secret prisons overseas and the representative of a third man who died in custody. If they prevail in the suit against the former military psychologists, James E. Mitchell and Bruce Jessen, who helped devise and run the interrogation program, it would be the first time a U.S. civilian court has held anyone accountable for a role in developing counterterrorism policies after the Sept. 11, 2001, attacks.
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The two former prisoners say they suffered lasting harm from their treatment at CIA “black sites,” secret interrogation and detention centers that it operated overseas. Suleiman Abdullah Salim, a Tanzanian who may have been a victim of mistaken identity, was held in a darkened CIA prison in Afghanistan and subjected to beatings, hanging in chains, sleep deprivation, and water dousing, which involves pouring ice water over detainees to create a sensation of drowning, according to a Senate report and interviews with him.
Mohamed Ahmed Ben Soud, a Libyan also held in Afghanistan, who was likewise mentioned in the Senate report, described being slammed against a wall, shackled to the ceiling, locked in wooden boxes and also subjected to the ice water treatment. The third man, an Afghan named Gul Rahman, died in 2002 in a secret CIA prison in Afghanistan after being left nearly naked and shackled to a wall in the cold.
Lawyers for Mitchell and Jessen have clashed with the Justice Department over what classified evidence is needed to defend against the lawsuit’s allegations that the two men designed and put in place “an experimental torture program.” Their lawyers argue that the psychologists were contractors acting under CIA direction, so they should be considered government agents entitled to protection from civil lawsuits.
Lawyers for the former prisoners have said that they do not need any classified information to make their case, and they are instead relying on declassified documents, including the executive summary of the 2014 Senate Intelligence Committee report that condemned the agency’s use of torture, including the use of waterboarding and other agonizing techniques.
Complicating matters, in the military commissions system at Guantánamo Bay, defense lawyers for a detainee who was tortured in CIA custody are seeking courtroom testimony by Mitchell and Jessen.
The detainee, Abd al Rahim al Nashiri, is accused of helping orchestrate the 2000 bombing of the destroyer USS Cole off the coast of Yemen and could face the death penalty if convicted.
In December, Nashiri’s lawyers, who are trying to get the case thrown out, asked the military judge to order pretrial testimony from the two psychologists, as well as the CIA’s former top lawyer, John Rizzo, and the former chief of the Counterterrorism Center of the CIA, José Rodriguez Jr., in connection with the destruction of videotapes showing Nashiri being waterboarded.
On Tuesday, the Miami Herald reported that the military judge had authorized the defense lawyers to call four former CIA officials as witnesses. But it was not clear whether that testimony would be public. The ruling, which was not yet available, was said to have identified them only as witnesses A, B, C and D.
In the lawsuit in federal court in Spokane, the judge had already approved requests for oral depositions of Rizzo and Rodriguez. But the lawyers for the defendants have sought testimony from more CIA officials. In June 2016, the defendants asked to depose James Cotsana, a former CIA official who they said oversaw their activities, but the agency refused to allow him to testify.
In December, the defendants issued subpoenas to depose two other agency employees: Haspel, who was initially described in court papers as “Gina Doe,” and a still unidentified official described as “John/Jane Doe,” Cotsana’s successor as chief of special missions for the CIA’s Counterterrorism Center and chief of the CIA’s renditions group.
After the CIA announced Feb. 2 that Haspel was President Donald Trump’s choice as the agency’s deputy director, a lawyer for Mitchell and Jessen reminded the government of the subpoenas. The defendants said in their filings that Haspel, who ran one of the CIA’s secret detention sites, was “centrally involved in the events alleged” by the plaintiffs. The defense has also asked for dozens of documents from the CIA and the Justice Department.
In a declaration and formal claim of privileges, the CIA director, Mike Pompeo, said it was necessary to keep certain information secret, including the identities of agency personnel who participated in the program, whom he said have been the subject of “death threats and security incidents.”
He acknowledged that there had been “public speculation” that Haspel and Cotsana been involved in the program, but said the agency had never officially confirmed whether that was true, and “the absence of official confirmation from the CIA leaves an important element of doubt about the veracity of the information and, thus, carries with it an additional layer of protection and confidentiality.”
He added: “That protection would be lost, however, if the government were forced to confirm or deny the accuracy of speculation or unauthorized disclosures,” so “the agency could not permit these individuals to answer any questions pertaining to the program.”
The court gave the government until Wednesday to assert any claims of privilege or the state secrets doctrine. Now it will be up to the U.S. District Court judge, Justin L. Quackenbush, to determine whether the state secrets privilege and other privileges claimed by the government were properly invoked to block that testimony and, if so, whether the case can go forward despite those restrictions. The government did not seek dismissal of the case. It is set for trial June 26.
“This case has shown that the claims of CIA torture survivors are not too secret for our courts to handle,” said Dror Ladin, a staff lawyer for the American Civil Liberties Union, which, with the Gibbons law firm in Newark, New Jersey, represents the former detainees. “Whether or not the government’s new state secrets claims are upheld, there’s already more than enough evidence in the record for our clients to prove their case.”
This month, the Trump administration invoked the state secrets privilege in a federal lawsuit involving a classified contract. But the Obama administration had already invoked the privilege in an earlier stage of that dispute when the lawsuit was before a state court.
The state secrets privilege became controversial under the Bush administration, which frequently invoked it to block lawsuits related to the CIA interrogation program and the NSA’s warrantless surveillance program. The government’s growing use of the power prompted civil liberties advocates to accuse the administration of abusing the privilege to prevent judiciary scrutiny of executive branch wrongdoing.
In 2009, after the Obama administration took office, the Justice Department created a task force to review all pending cases it had inherited in which the Bush administration had invoked the privilege. Led by Donald B. Verrilli Jr., who later became the solicitor general, the task force found that each of the invocations was legitimate.
However, Verrilli put together a more restrictive process for deciding whether to invoke the privilege in the future. It required the attorney general personally to sign off before the department could do so.
While the Obama administration did not invoke the privilege as frequently as the Bush administration had done, it did make some use of it. The first instance came in September 2010 in response to a lawsuit filed by the father of Anwar al Awlaki, a U.S. citizen and radical cleric for al-Qaida’s Yemen branch, seeking an injunction against attempts to kill his son.
A federal judge dismissed that lawsuit on technical grounds, so there was no ruling on whether the invocation of the privilege was legitimate. The United States killed Awlaki a year later in a drone strike.