James Mitchell (right) and Bruce Jessen (left), the architects of the CIA's post-9/11 torture program.

By Andy Worthington, June 25, 2017 (the day before the U.N. International Day in Support of Victims of Torture, which commemorates the entry into force, on June 26, 1987, of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the U.S. is a signatory).

Here at "Close Guantánamo," we have always been concerned not only with closing Guantánamo for good, and seeking justice for anyone put forward for a trial, but also with accountability.

We believe that those who authorized the defining characteristics of the "war on terror" declared after the terrorist attacks of September 11, 2001 — a global program of kidnapping and torture, and, at Guantánamo, indefinite imprisonment without charge or trial — must one day be held accountable for their actions.

Unfortunately, even before President Obama took office, he expressed "a belief that we need to look forward as opposed to looking backwards," adding that part of his job was "to make sure that, for example, at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got spend their all their time looking over their shoulders."

True to his word, President Obama then refused to allow any efforts to seek accountability to proceed to trial. In the Jeppesen case, in which a number of former prisoners sought to sue a Boeing subsidiary for being the CIA's "travel agent for torture," the president invoked the little-used "state secrets doctrine" to keep the case out of court.

In another notorious example of obstruction, he allowed a Department of Justice "fixer," David Margolis, to override the highly critical conclusion of a four-year ethics investigation into John Yee and Jay S. Bybee, who had written and approved the notorious "torture memos" in August 2002, in which they had sought to redefine torture so that it could legally be used by the CIA.

In general, because of this obstruction in the U.S., those seeking accountability have had to look outside the U.S. — via the Council of Europe, for example, which produced reports about the Bush administration’s rendition program in 2006 and 2007, the United Nations, for whom I was the lead writer of a report about secret detention in 2010, and the European Court of Human Rights, which, in 2015, ordered Poland to pay compensation to two of the victims of Bush’s torture program, Abu Zubaydah and Abd al-Rahim al-Nashiri, held in a secret prison operated by the CIA on Polish soil in 2002-03. Despite the compensation, both men are still held at Guantánamo, with al-Nashiri facing a military commission trial that seems to be endlessly stuck in pre-trial hearings, and Zubaydah held as a "forever prisoner," left to rot without ever being charged.

In December 2014, there was an outbreak of hope amongst those seeking accountability when the Senate Intelligence Committee publicly released the executive summary of its four-year investigation into the CIA’s post-9/11 torture program, which was devastatingly critical. The report noted how the CIA repeatedly lied about what it was doing and what it had achieved, when the reality was that the program was a hideously brutal and counter-productive disaster, which produced no worthwhile intelligence.

However, despite the report’s damning evidence of wrongdoing (readily discernible from just the redacted executive summary that was published, and not even the entire report, which has not been publicly released), no one has been held accountable.

The lawsuit against James Mitchell and Bruce Jessen

As a result, the great hope for those seeking accountability is a case in Washington State against James Mitchell and Bruce Jessen, the architects of the post-9/11 torture program, which, last May, a judge allowed to proceed. The case was brought by the American Civil Liberties Union (ACLU), on behalf of three victims of the torture program — Gul Rahman, who died in Afghanistan in 2002, and two survivors, Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, who were held and tortured in secret prisons.

Last week, the New York Times obtained videos of the depositions made by Mitchell and Jessen in their court case, in which the two men attempted to defend their positions (the Times also obtained the depositions of two former CIA officials and Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, as well as newly declassified CIA documents).

Mitchell and Jessen were psychologists who had worked for the U.S. military’s SERE program (Survival, Evasion, Resistance, Escape), which trains U.S. personnel to resist torture, if captured by a hostile enemy, by subjecting them to torture techniques to prepare them to resist. After 9/11, they proposed reverse-engineering these techniques for use on prisoners seized in the "war on terror," and were rewarded with payments of $81m.

In an accompanying article, "Psychologists Open a Window on Brutal CIA Interrogations," Sheri Fink and James Risen wrote about the depositions, noting how "[t]heir accounts were sometimes at odds with their own correspondence at the time, as well as previous portrayals of them by officials and other interrogators as eager participants in the program."

Jessen, for example, described how both he and Mitchell were "reluctant participants," as the Times put it. Jessen said, "I think any normal, conscionable man would have to consider carefully doing something like this. I deliberated with great, soulful torment about this, and obviously I concluded that it could be done safely or I wouldn’t have done it."

As the Times article described it, "For years, Dr. Mitchell, polished and assertive, has defended the two men’s actions in the press and in a recent book, while Dr. Jessen remained silent. But Dr. Jessen answered questions under oath on Jan. 20, the same day that President Trump was inaugurated." The Times added that the two men "argue that the CIA, for which they were contractors, controlled the program," but that "it is difficult to successfully sue agency officials because of government immunity." As Mitchell and Jessen describe it, under the agency’s direction "they proposed the 'enhanced interrogation' techniques — which were then authorized by the Justice Department — applied them and trained others to do so." They do not dispute that their business received $81 million from the agency.

However, in his deposition, Jessen "indicated that the two men had some reservations," in the Times’ words. He stated, "Jim [Mitchell] and I didn’t want to continue doing what we were doing. We tried to get out several times and they needed us, and we — we kept going." He proceeded to state, "Jim and I went into a cubicle. He sat down at a typewriter and together we wrote out a list." Paraphrasing Jessen’s words the Times added that the two men "thought those techniques — including sensory and sleep deprivation, shackling for hours in uncomfortable positions and waterboarding — would be safer than others the CIA might consider to get resistant detainees to provide information that could help head off another terrorist attack … Soon after, the CIA asked them to use the techniques to interrogate a terrorism suspect, something with which they had no experience."

As Jessen put it, "I had been in the military my whole life and — and I was committed to and used to doing what I was ordered to do. That’s the way I considered this circumstance."

Here at "Close Guantánamo," we are not convinced by the explanations proferred above.

The torture of Abu Zubaydah

Abu Zubaydah at Guantanamo, in a photo taken by representatives of the International Committee of the Red Cross. His lawyer Mark Denbeaux released the photo in May 2017, and stated that it was a recent image.

The first prisoner subjected to the torture program was Abu Zubaydah, and as the Times put it, accurately, the U.S. government "believed he was a top leader of Al Qaeda, though it later abandoned that claim."

Zubaydah, seized in Pakistan, where he was severely wounded, was flown to the CIA’s first "black site," in Thailand, where a struggle took place between the FBI and the CIA regarding his interrogation. The FBI used traditional rapport-building, securing useful information, while, as the Times put it, the CIA, "worried that he was holding back information," which the agency "later concluded he never had," chose to torture him instead — or in the Times’ unnecessary dancing around the truth, chose to "use extreme physical force to break him."

Mitchell and Jessen subjected Zubaydah to the array of torture techniques they had come up with, including waterboarding — an ancient form of water torture, consisting of controlled drowning — to which he was subjected on 83 occasions. The Senate report noted how, "at one point he was completely unresponsive, with bubbles rising from his mouth," and the Times noted that a newly declassified August 2002 cable from the prison to headquarters stated, "At the onset of involuntary stomach and leg spasms, subject was again elevated to clear his airway, which was followed by hysterical pleas. Subject was distressed to the level that he was unable to effectively communicate or adequately engage the team."

As the Times described it, Mitchell and Jessen claim that, "When those at the prison wanted to end the waterboarding sessions as no longer useful, CIA supervisors — including Jose Rodriguez, then the head of the agency’s Counterterrorism Center and a witness who testified under oath in the lawsuit — ordered them to continue." Jessen stated, "They kept telling me every day a nuclear bomb was going to be exploded in the United States and that because I had told them to stop, I had lost my nerve and it was going to be my fault if I didn’t continue."

Mitchell said that agency officials told them, "'You guys have lost your spine.' I think the word that was actually used is that you guys are pussies. There was going to be another attack in America and the blood of dead civilians are going to be on your hands."

Contravening these assertions, the Times noted that an agency cable noted how "the psychologists’ interrogation team recommended using the aggressive techniques as a 'template for future interrogations of high-value captives,'" and it is beyond dispute that two other prisoners — al-Nashiri and Khalid Sheikh Mohammed, the alleged architect of the 9/11 attacks — were subsequently subjected to waterboarding, just as it is also beyond dispute that Mitchell and Jessen continued to be employed and paid for many years after their so-called doubts first allegedly emerged.

The Times article also expressed other doubts about the men’s truthfulness, noting that Mitchell tried to downplay the significance of waterboarding, saying, in response to a lawyer’s reference to the practice as painful, "It sucks, you know. I don’t know that it’s painful. I’m using the word distressing." However, Mitchell is on record as having previously stated that "most people would prefer to have their legs broken than to be waterboarded."

Both men also tried to reject the notion that anyone subjected to their program suffered any long-term physical or psychological damage, although Fink and Risen contrasted this position with the results of an investigation they conducted for the Times last year (with Matt Apuzzo), "in which they found a pattern of long-term psychological damage among dozens of former detainees subjected to brutal treatment by the United States," and in which the men in question "described grappling with depression, anxiety, withdrawal and flashbacks."

CIA prisoners Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud provide evidence

Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, victims of the CIA's post-9/11 torture program (photos made available by the ACLU).

In the depositions, Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud also described their torture, although the Times noted that Mitchell and Jessen "said they had not interrogated or encountered the two men." Jessen, however, took part in the interrogation of Gul Rahman, who died in CIA custody in Afghanistan in 2002, almost certainly through hypothermia. In his deposition, he "said he had asked guards several times to provide clothes and blankets to him," although it is not known if that is true.

Ben Soud, a Libyan, "was held by the CIA in Afghanistan and was subjected to being locked in small boxes, slammed against a wall and doused with buckets of ice water while naked and shackled," as the Times described it. He said he "still suffered from nightmares, fear, mood swings and other psychological injuries as a result of his captivity," stating, "It comes to me during my sleep and as if I’m still imprisoned in that horrible place and still shackled. I get the feeling of worry about my future and about the fear that this could happen again."

Salim, a Tanzanian captured in 2003 and also held by the CIA in Afghanistan, described how he "was beaten, isolated in a dark cell for months, subjected to dousing with water and deprived of sleep." He said he "suffered from flashbacks, headaches, sleeplessness and ringing in his ears." As he put it, "I don’t feel like being with people, I like being with myself, and I don’t like walking around to see people. I feel like I’m so weak and I can’t do anything."

Despite their criticism of the torture program, both Mitchell and Jessen still defend it, as can be seen from Mitchell’s recently published book, reviewed and thoroughly repudiated here by former CIA interrogator John Kiriakou, who was later imprisoned as a whistleblower, and in both men’s comments in their depositions. As the Times described it, Mitchell "asserted that the current legal limits on interrogation methods were too restrictive," and both men "said that some of the physically harsh techniques were useful."

Jessen stated that "walling," in which a prisoner is repeatedly slammed against a flexible plywood wall, was "one of the most effective" techniques. "It’s discombobulating. It doesn’t hurt you, but it jostles the inner ear, it makes a really loud noise," he said. He also defended what the Times described as "extreme sleep deprivation," saying, "There is a tether anchored to the ceiling in the center of the detention cell. The detainee has handcuffs and they’re attached to the tether in a way that they can’t lie down or rest against a wall. They’re monitored to make sure they don’t get edema [swelling] if they hang on the cuffs too much."

In his deposition, Mitchell also revealed how "he, along with others, urged the CIA to destroy videotapes the agency had made of some interrogations," and claimed, describing the graphic images of waterboarding and other practices, "I thought they were ugly and they would, you know, potentially endanger our lives by putting our pictures out so that the bad guys could see us," an explanation that, rather too neatly, it seems to me, attempts to divert attention from questions about the techniques’ lawfulness.

The Times also noted that both men, as they put it, "denied accusations that they evaluated the effectiveness of the methods they promoted," although the newspaper added that just this week the advocacy group Physicians for Human Rights, in a report entitled, "Nuremberg Betrayed: Human Experimentation and the CIA Torture Program," "contends that the men and the CIA engaged in unethical experimentation on detainees, which is banned by the Nuremberg Code for health professionals developed after World War II." As the Times put it, PHR "said the explicit mention of applied research in the psychologists’ contracts with the agency, released recently through the lawsuit, and similar references in recently released CIA cables, indicate that the enhanced interrogation program 'was itself an applied research regime and implicitly conceptualized as such by the CIA.'"

The case against Mitchell and Jessen is scheduled to go to trial on September 5. As the Times also noted, last month both sides asked Judge Justin L. Quackenbush "to rule summarily in their favour," adding, "He declined to do so, but did grant the United States government’s request to block the deposition of two additional former CIA officials as witnesses and the release of certain documents requested by Drs. Mitchell and Jessen, on grounds it could harm national security. However, the case was permitted to continue."

In "The Torturers Speak," an op-ed following the publication of the article, the New York Times’ editorial board had little time for Mitchell and Jessen’s excuses.

They "strike a professional pose," the editors wrote. "Dressed in suits and ties, speaking matter-of-factly, they describe the barbaric acts they and others inflicted on the captives, who were swept up indiscriminately and then waterboarded, slammed into walls, locked in coffins and more — all in the hunt for intelligence that few, if any, of them possessed. One died of apparent hypothermia. Many others were ultimately released without charge."

However, the editors added, "When pushed to confront the horror and uselessness of what they had done, the psychologists fell back on one of the oldest justifications of wartime. 'We were soldiers doing what we were instructed to do,' Dr. Jessen said. Perhaps, but they were also soldiers whose contracting business was paid more than $81 million."

The editors also stated, "The full story of what happened under the torture program may never be made public. Earlier this month, the Trump administration began returning copies of [the] 2014 Senate classified report on torture to Congress, where it may be locked away for good … Many people bear responsibility for the depravity of the torture program, but most will never suffer any legal consequences. The suit against Dr. Jessen and Dr. Mitchell may be the last opportunity for some accountability."

Note: In another development relating to Abu Zubaydah, the legal organization Reprieve stated, in a press release on June 7, that his attorneys "have filed a new U.S. federal lawsuit against the architects of the CIA torture program as part of an official investigation into U.S.-led torture in Poland."

Reprieve added that the lawsuit, first filed on May 22, seeks to depose James Mitchell and Bruce Jessen in Washington State, and to "compel them to turn over information relating to the torture of Mr Zubaydah at a CIA 'black site' in Poland."

The press release also explained that the lawsuit "employs an American discovery law used by businesses to subpoena information needed for a proceeding overseas. The law can allow the American courts to assist foreign governments to prosecute torturers, even if the U.S. executive branch refuses to do so. In this case, Poland’s government is seeking to hold itself accountable for U.S.-led abuses on Polish soil, with an official inquiry into the hosting of CIA 'black sites' used to torture prisoners."

Reprieve also noted that, "Separately, German prosecutors are weighing a request from the European Center for Constitutional Rights to issue an arrest warrant for Gina Haspel, the Deputy Director of the CIA. Ms Haspel oversaw a notoriously brutal CIA 'black site' in Thailand, where Mr Zubaydah was waterboarded 83 times in a month and used as a 'guinea pig' for Mitchell and Jessen’s torture techniques. She subsequently helped destroy video evidence of the abuse."

Note: Please also feel free to check out '81 Million Dollars' by my band The Four Fathers, which looks at the torture program, the role of Mitchell and Jessen, and the need for accountability.