The civil trial of two psychologists who helped design the CIA's post- 9/11 waterboarding program is delaying pretrial testimony by four key figures from the CIA's secret prison network in a war crimes case here.
Psychologists James Mitchell and Bruce Jessen are being sued by the American Civil Liberties Union on behalf of three men who said they were tortured with techniques the two men designed. The trial starts in Washington State on Sept. 5, creating a conflict with their scheduled testimony in pretrial hearings against the alleged mastermind of the USS Cole bombing.
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Now, the soonest they could testify at Guantánamo is in November, judge Air Force Col. Vance Spath said in court Friday. Also due to testify at the same time: former CIA General Counsel John Rizzo and Jose Rodriguez Jr., the spy agency’s clandestine service chief who in 2005 ordered the destruction of videotapes over Rizzo’s advice.
Attorneys for the alleged mastermind of al-Qaida’s USS Cole bombing in 2000, Abd al Rahim al Nashiri, persuaded Spath to let them question the four men in a bid to recreate what happened during Nashiri’s four years in the CIA’s Black Sites.
Mitchell wrote in his book, “Enhanced Interrogation,” that he and Jessen personally waterboarded Nashiri, who was so small he kept slipping out of the gurney straps when guards tipped the board to help him breathe between bouts of near drowning. Neither of them, Mitchell wrote, were responsible for “unauthorized techniques” used on Nashiri, such as threatening him with a cocked handgun or revving drill.
But defense lawyers want the four to discuss what was on the videotapes — evidence that was protected by a court order in 2005, when Rodriguez ordered them destroyed.
The lawsuit in a federal court in Spokane, Washington, is going forward after lawyers for the two psychologists failed to persuade a judge that the two CIA contractors were no more responsible for what went on in the CIA black sites after the Sept. 11, 2001, attacks than a poison gas contractor was responsible for the extermination of human beings in the Holocaust.
Spath ruled in March that the Pentagon-paid defense lawyers for Nashiri could question the four former CIA employees over the prosecutor’s objections. Nashiri, a Saudi, is accused of orchestrating al-Qaida’s suicide bombing of the warship off Aden, Yemen, on Oct. 12, 2000 that killed 17 U.S. sailors and wounded dozens more. The Pentagon prosecutor is seeking his death by military execution, if Nashiri is convicted.
Case defense lawyers have asked the judge to cancel the November hearings, meaning the testimony could come in 2018. After November, the next hearings are scheduled for Jan. 16-26, when both the USS Cole case and Sept. 11 judges have double-booked Camp Justice’s lone national-security courtroom.