BERKELEY, Calif. (CN) — Dror Ladin, the ACLU attorney who won a landmark settlement for terrorism detainees subjected to CIA tortures designed by two psychologists, warned Thursday that immunity laws may become more widely applied because of that case.
“This case faced an enormous uphill challenge,” Ladin said in a discussion at UC Berkeley School of Law. “We may see a follow-on case, but its outcome is not clear.”
The American Civil Liberties Union sued the psychologists in 2015 on behalf of Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, who said they were tortured in CIA prisons in Afghanistan for information on terrorist groups, and on behalf of Gul Rahman, who died in custody.
The lawsuit accused James Mitchell and John “Bruce” Jessen of developing interrogation methods under a secret $160 million contract with the CIA based on experiments from the 1960s that applied electric shocks to dogs.
The research into “learned helplessness” found that dogs that could not escape the pain of being shocked eventually didn't try to avoid it, even when they had the chance.
According to the ACLU, Mitchell and Jessen told the CIA that prisoners should be subjected to severe mental and physical pain and suffering, theorizing that inducing a state of learned helplessness would break their resistance to interrogation. The CIA paid Mitchell and Jessen $81 million over several years to oversee the program, in which they also tortured and experimented on prisoners, Ladin said.
The three detainees were slammed into walls, stuffed inside small boxes, shackled naked or in diapers for days in standing and stress positions, deprived of sleep, beaten, starved, forced to take cold showers, and waterboarded to simulate drowning, Ladin said. Techniques used on 116 other prisoners also included rectal force-feeding, designed to exert “total control over the detainee,” according to an investigation by the Senate Intelligence Committee.
None of the three men was charged as an enemy combatant. Salim and Ben Soud were released without charges, and Rahman died of hypothermia after two weeks in custody.
“One of the things that is most painful to some of the clients is even when they were finally released and went home and tried to tell people what happened to them, no one believed them,” Ladin said, because they didn't believe the United States would use such techniques.
The ensuing case, Salim v. Mitchell, hinged on whether Mitchell and Jessen acted as independent contractors or as agents of the federal government, which could have conferred immunity.
Ladin said they failed to show they were agents of the state because they chose to work as contractors, setting up Spokane, Washington-based Mitchell, Jessen & Associates in 2005 to run the interrogation program under the CIA contract.
Mitchell and Jessen argued that torture is a political decision outside the jurisdiction of the courts. Ladin warned Thursday that with federal appellate courts and the Supreme Court being reshaped under President Donald Trump, immunity laws could become more strict and jurisdiction more circumscribed, throwing the outcome of future torture litigation into question.
Salim v. Mitchell was settled in August 2017 for an undisclosed amount. But previous suits were thrown out of court on secrecy grounds, never making it past the motion to dismiss, Ladin said.
The case succeeded, he said, because of the Senate investigation. A resulting 524-page summary report included a declassified list of survivors of the CIA program, which meant that the government couldn’t rely as expansively on the state secrets doctrine to dismiss lawsuits, Ladin said.
“We were faced with this one-note depressing litany of courts refusing to let cases move forward,” he said. “The report changed the calculus.”
Ladin also discussed the documents unearthed during discovery, revealing that although official accounts portray top CIA brass and their lawyers as ethical actors under tremendous pressure to combat a “superpowered” terrorism, they never made a good-faith legal inquiry into what they could and could not do in the interrogation program.
In one CIA cable, Mitchell, Jessen and interrogation personnel in Afghanistan discussed with the CIA a request that the Justice Department not prosecute if they were found to have violated any laws.
In another, the interrogation team wrote to CIA headquarters demanding assurances that if they did not kill a detainee, he would not be allowed for the rest of his life to speak to another person not involved in his interrogation. The team also made arrangements to cremate the detainee’s body if he died in custody to hide evidence of torture.
During a deposition, Ladin asked Jose Rodriguez, a former director of the CIA interrogation program, about the due diligence he did on Mitchell and Jessen before hiring them.
Rodriguez replied he did “nothing” to vet them. “I just took it for granted that they knew what they were doing,” he said in the videotaped testimony.
The CIA did not return a phone call seeking comment.
“There were 119 people who the CIA detained based on nothing,” Ladin said. “It's incredible.”
News reports indicate that many of the people sent to CIA prisons in Afghanistan and elsewhere were turned in by personal enemies, or for rewards.
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