No Dismissal in Detainee War-Crimes Lawsuit

SPOKANE, Wash. (CN) - Do government contractors for the U.S. military and intelligence community get immunity for the harm their services or products may cause? The question is currently being debated in Federal Court, in a lawsuit against two psychologists contracted by the Central Intelligence Agency to build a torture and interrogation program for detainees suspected in having a role in terrorist groups.

Former CIA detainees sued psychologists James E. Mitchell and John Jessen over their role in spearheading an "enhanced interrogation program" that promoted "learned helplessness" through torture techniques, according to the American Civil Liberties Union, which is representing the detainees.

Two of the detainees, Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, were released from custody after being subjected to torture including water boarding and sleep deprivation. The ACLU is also representing the family of a third detainee, Gul Rahman, who died of hypothermia while in custody after being "short-chained" to a wall and denied food and water, according to the ACLU.

In an April 22 hearing on the case, U.S. District Judge Justin Quackenbush denied a motion to dismiss the suit and lifted a stay on discovery in the case. Quackenbush also posed several hypothetical questions to both sides that hit at the heart of the government-contractor liability debate.

"Wartime decisions are given sovereign immunity that prohibits lawsuits based on decisions made during that time," Quackenbush said. "When President Truman approved killing 140,000 people in Hiroshima, those political decisions were made by the executive branch. Tactics and strategies during wartime are not for the courts to review."

He then asked, "If a general makes a decision, for instance, to interrogate and torture German soldiers during World War II in order to find out all there is to know, who would the German soldiers sue? The torturers?"

But ACLU attorney Dror Ladin said drawing a correlation between actions of military service members and civilian contractors is not an easy nexus.

"The defendants were not engaged in battle and it would stretch the battlefield beyond all concept to say picking up people off the street in foreign countries we are not at war with and take them to a secret prison is the same as actions on the battlefield," Ladin said.

Because military and intelligence contractors fall into a liability gap of being neither a branch of the military that is subject to the Uniform Code of Military Justice nor a government employee who can be disciplined, the issue of contractor liability is an ongoing issue in Federal Court.

At the hearing, both sides highlighted recent court decisions regarding contractor immunity questions, including Campbell-Edwal Co. vs. Gomez and Al Shimari vs. CACI.

One point that Quackenbush found troubling was that neither the ACLU, the psychologists' lawyers at Blank Rome Law nor Justice Department attorney Andrew Warden had read or seen the contract between the CIA and Mitchell and Jensen.

"I am concerned that no one at this hearing has a copy of the contract," Quackenbush said. "I am feeling a void."

He gave the attorneys one month to develop an agreement on discovery proceedings, and directed them to work with the Justice Department to prevent leaks of confidential intelligence information. The department recommended that it have someone at any depositions in the case and that it be able to review any documents Mitchell and Jensen may have to submit before they are given to attorneys.

One group enthused by Judge Quackenbush's decision is the Peace and Justice Action League of Spokane, which held a demonstration outside the courthouse during the hearing. League spokesman George Taylor said the group hopes the case will set a precedent in the United States.

"We hope this goes all the way to the Supreme Court and all contractors who engage in torture go to jail," Taylor said. "We want to prevent torture by the U.S. government and are working to end future wars."

Photos by Jamie Henneman/CNS

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