CIA Deputy May Be Spared Testifying in Bush-Era Torture Case

(Bloomberg) -- A pair of U.S. psychologists accused of overseeing the torture of terrorism detainees more than a decade ago face reluctance from a federal judge to let them question the CIA's deputy director to show they were only following orders.

The judge indicated at a hearing Friday that the psychologists should be able defend themselves in the 2015 lawsuit without compromising government secrecy around the exact role Gina Haspel played in the agency's overseas interrogation program years before she was tapped to be second in command by the Trump administration.

The American Civil Liberties Union, which filed the case on behalf of three ex-prisoners, one of whom died in custody, is urging the judge not to let the psychologists' lawyers question Haspel and a retired Central Intelligence Agency official. While the defendants want to demonstrate their actions were approved by the agency, the ACLU says that won't shield them from liability.

The psychologists, James Elmer Mitchell and John “Bruce” Jessen, who worked as contractors for the agency, are accused in the suit of torture, cruelty, inhuman and degrading treatment and non-consensual human experimentation. They have denied wrongdoing. The CIA isn't a defendant in the case, but the government is covering the psychologists' legal expenses.

The government objected to the requests by attorneys for Mitchell and Jessen to interview the CIA officials and have access to certain classified records on the grounds that making the information public would harm national security.

First Female

Haspel, the first female career CIA officer to be named deputy director, had a role in the CIA's former covert program under President George W. Bush where suspected terrorists were subjected to harsh interrogation methods, including waterboarding, which simulates drowning, according to the Associated Press and other media.

The government has never acknowledged that the retired intelligence officer the defendants are seeking to question, James Cotsana, was involved in its detainee interrogation program. The psychologists have said he was their supervisor, according to a court filing.

Lawyer Brian Paszamant, representing the psychologists, argued at Friday's hearing in Spokane, Washington, that the so-called state's secrets privilege doesn't apply to Haspel and Cotsana because it's already public knowledge that they worked on the interrogation program.

Senior U.S. District Judge Justin Quackenbush said his “impression” was that the role of the officials shouldn't be identified if the government hasn't disclosed it.

‘Foreign Terrorist'

“What could be more a state secret than who was involved in interrogating foreign terrorists?” he said

Quackenbush said that based on the material he's reviewed in the case, the testimony of Haspel and Cotsana would be “merely supplemental” and not “critical evidence” for the psychologists. The hearing ended without a final ruling from the judge.

In its opposition to CIA testimony, the ACLU argued that no confirmation of “CIA approvals could possibly establish that defendants acted in accordance with ‘properly delegated' authority because the CIA has no power to confer a license to commit war crimes.”

The ACLU's lawyer, Dror 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.

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 reporter on this story: Pamela Maclean in San Francisco at pmaclean2@bloomberg.net.

To contact the editors responsible for this story: Elizabeth Wollman at ewollman@bloomberg.net, Peter Blumberg