The Justice Department has signaled that it won’t try to block a lawsuit arising from the CIA’s harsh interrogation techniques, leaving the door open for a court challenge over tactics that have since been discontinued and widely discredited.
Lawyers call the government’s stance unprecedented, but also a recognition that a once-secret program is now largely out in the open. They say it’s the first time the Justice Department has not sought, as its first step, to dismiss a lawsuit over the interrogation program by arguing that its mere existence is too secret to discuss in court. Judges have previously accepted that assertion, turning aside cases about a program that was designed to extract intelligence from suspected militants captured overseas.
The lawsuit at issue, pending in federal court in Washington state, accuses the two Air Force psychologists who designed the interrogation program of endorsing and teaching torture tactics under the guise of science.
Although the Justice Department isn’t part of the case, it submitted a filing ahead of a Friday hearing saying that it wanted to ensure that certain classified information — such as identities of interrogators and locations of detention sites — remains private as the suit moves forward. But the lawyers who brought the case were heartened that the government did not immediately invoke the state secrets privilege, which protects the government’s right to shield sensitive information in lawsuits. Instead, the Justice Department suggested that it was willing to let the suit proceed through the information-sharing stage known as discovery.
“The government is actually going to show up at the hearing instead of trying to shut it down,” said Dror Ladin, a staff attorney at the American Civil Liberties Union, which brought the case. “It’s going to be suggesting procedures that might allow the case to go forward.”
That’s a departure for the Justice Department, which has successfully fended off multiple lawsuits by invoking the state secrets privilege.
A notable example was the case of Khaled El-Masri, a German citizen who unsuccessfully sued after he said he had been beaten and sodomized in a CIA-run prison in Afghanistan known as “the Salt Pit.” Courts sided with the government in holding that the danger that state secrets could be revealed far outweighed the injuries he suffered.
The veil of secrecy surrounding CIA interrogations was pierced by the 2014 release of the executive summary of a scathing Senate report on the program. That report said the interrogation techniques — including sleep deprivation, waterboarding and beatings — had inflicted pain on al-Qaida prisoners far beyond the legal limits and did not yield lifesaving intelligence.
In their filing, Justice Department lawyers acknowledged that the release of the report “had the effect of disclosing a significant amount of information concerning the detention and interrogation program,” including specific interrogation techniques and confinement conditions. But they also said other categories of information remain secret and that the two psychologists will likely be asked to disclose classified information if the case moves forward. They did not rule out the possibility of eventually invoking the state secrets privilege to prevent disclosure of certain information.
The ACLU sued the psychologists, James E. Mitchell and John “Bruce” Jessen, last October on behalf of three former CIA prisoners. One, Gul Rahman, was alleged to have been interrogated at the Salt Pit and subjected to isolation, darkness and extreme cold water, and was later found dead of hypothermia. The other two, Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, were held in CIA prisons but never charged with crimes and are now free.
It alleges that the psychologists, despite having no expertise on al-Qaida, devised a program for the CIA that drew from 1960s experiments involving dogs and the theory of “learned helplessness.” The two spent years training military officials to resist interrogations and had subjected U.S. troops in training sessions to harsh techniques, but had no experience as interrogators themselves, the Senate report says.
The pair worked as independent contractors, which the Justice Department has conceded.
A lawyer for the men, Henry Schuelke III, declined to comment. They have sought to dismiss the case, arguing among other things that the court lacks jurisdiction to hear a matter best reserved for the “political branches of the U.S. government.”
A hearing Friday will likely include discussion of how to protect the secrecy of certain information if the case proceeds. Those procedures could include having Justice Department lawyers in the room during depositions, or being given the opportunity to review disclosures by the defendants about the interrogation program.
Stephen Vladeck, a national security law professor at American University, said it was too early to know the significance of the government’s filing. The lawsuit might eventually be dismissed, or as the matter proceeds through discovery, the Justice Department might yet decide that it involves too many secrets after all and should be dismissed, he said.
“Whether this is going to have the consequences that I suspect the ACLU hopes remains to be seen,” he said.
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