U.S. Resists CIA Agent Testimony in Bush-Era Torture Lawsuit

(Bloomberg) -- The Trump administration asked a federal judge to protect three CIA agents from testifying in a lawsuit accusing two agency contractors of overseeing the torture of terrorism detainees more than a decade ago. 

The Justice Department argued that national-security secrets would be compromised if the current and former CIA officers are questioned in a lawsuit seeking to hold Americans liable for complicity in alleged human-rights abuses. The psychologists who worked as contractors for the agency are accused of administering an experimental torture program on two former prisoners and a third who died in custody.

The so-called state’s secrets objection may be the last best shot for the government, which is on the hook for the psychologists’ legal costs, to keep key witnesses out of the case. The suit, brought by Suleiman Abdullah Salim and others. already has survived repeated efforts by defense lawyers to get it thrown out and is heading toward trial.

CIA Director Mike Pompeo “has personally considered the matter and has determined that disclosure of the information at issue reasonably could be expected to cause serious, and in some cases exceptionally grave, harm to national security,” the U.S. said in a filing Wednesday in federal court in Spokane, Washington.

Deputy Director

The detainees’ lawyers are seeking to question Gina Haskel, who was appointed in February as deputy director of the agency. Another, James Cotsana, is a retired intelligence officer who the government has never acknowledged as having a role in its detainee interrogation program, although the psychologists have said he was their supervisor, according to the court filing. A third official isn’t identified by name in court papers, but is described as having later taken over Cotsana’s supervisory role.

Dror Ladin, an American Civil Liberties Union lawyer representing the former prisoners, said the government’s objection doesn’t endanger the lawsuit.

“This case has already shown that the claims of CIA torture survivors are not too secret for our courts to handle,” he said in an email. “Whether or not the government’s new state secrets claims are upheld, there is more than enough evidence in the public record for our clients to prove their case.”

Ladin has said that if the lawsuit succeeds, it may encourage other prisoners to pursue claims they were tortured in the U.S. war on terrorism. 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.

Trump, Waterboarding

While running for president, Donald Trump said he wanted to use waterboarding to extract information from suspected terrorists. He later said he would defer to his defense secretary, James Mattis, who’s been quoted saying that torture doesn’t work as well as sitting down with “a pack of cigarettes and a couple of beers.” Pompeo opposed 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 after they were captured in 2002 and 2003.

In 2015, two of the men and the estate of a third, who died as a result of hypothermia during his captivity, filed a complaint accusing the contractor psychologists of war crimes, including torture, cruelty, inhuman and degrading treatment and non-consensual human experimentation.

The psychologists, James Elmer Mitchell and John “Bruce” Jessen, have denied wrongdoing. In January, they argued that while acting as agents of the CIA, they couldn’t be sued for detention-related claims made by prisoners who were properly held as enemy combatants. Senior U.S. District Judge Justin Quackenbush rejected that defense and allowed the case to proceed. The CIA isn’t a defendant in the case.

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. He was told another deadly attack might come at any time.

The case is Salim v. Mitchell, 15-cv-00286, U.S. District Court, Eastern District of Washington (Spokane).

To contact the reporters on this story: Pamela Maclean in San Francisco at pmaclean2@bloomberg.net, Peter Blumberg in San Francisco at pblumberg1@bloomberg.net.

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net, Paul Cox, Joe Schneider