Trump Administration Plans To Invoke State Secrets In Case Against Psychologists Behind CIA Torture Program

President Donald Trump’s administration informed a federal court that it plans to invoke the state secrets privilege to prevent two CIA witnesses from testifying on the role of psychologists in developing and administering the CIA torture program.

One of the witnesses is Gina Haspel, who was appointed CIA deputy director. Haspel briefly ran a “black site” in Thailand, where Abu Zubaydah and Abd al-Rahim al-Nashiri were both waterboarded. She also played a key role in the destruction of videotapes that contained evidence of torture against Zubaydah and Nashiri.

The American Civil Liberties Union brought a lawsuit against James Mitchell and Bruce Jessen by three victims of the CIA torture program. Mitchell and Jessen were the main architects behind development of the CIA’s torture program.

According to a filing [PDF], the government claims it “never officially acknowledged” whether Haspel or a “John/Jane Doe” witness held “senior operational positions in the CIA’s former detention and interrogation program.”

Haspel worked undercover when she was involved in the CIA torture program and the destruction of torture evidence. Yet, remarkably, Mike Morell, former CIA deputy director, wrote about Haspel’s role at the CIA.

He indicated the media is “likely to refer to a moment in her career when she drafted a cable instructing a field station to destroy videotapes of CIA interrogations of senior al Qaeda operatives.” And added, “She did so at the request of her direct supervisor and believing that it was lawful to do so. I personally led an accountability exercise that cleared Haspel of any wrongdoing in the case.”

Judge Justin Quackenbush, in a separate order, gave the Trump administration until March 8 to file a declaration invoking the state secrets privilege.

Already at issue in the case is whether the government has “failed to timely assert the privilege.”

“There is a credible argument the government has waived the privilege. It is undisputed the government has not employed the proper procedure to invoke the state secrets privilege,” Quackenbush stated. But ruling on the issue of the state secrets privilege was essentially withheld for a later date.

Defendants in the case filed two motions to dismiss. Those were each fully briefed and heard. Both were denied. Currently, there is a date for trial scheduled on June 26.

This is not a lawsuit against the CIA, but rather a lawsuit against two independent contractors that worked for the CIA.

The “state secrets privilege” has its roots in a 1953 case known as United States v. Reynolds, where the United States government refused to tell victims’ families how their loved ones had died in a military plane crash because they contended “secrets” would be revealed. In recent years, it has become known through declassified Air Force documents that fraud was likely perpetrated by the government in this case. The fraud essentially deprived victims of judgments in court.

As a petition that was filed by victims seeking compensation for being defrauded argues, “The government concealed its fraud for decades, holding the accident reports and witness statements as “classified materials” until the 1990s, even though they contained no secrets and had no conceivable further utility. Indeed, that was the Air Force’s purpose in classifying them—to bury them so deep and so long that no one would find them.”

President George W. Bush’s administration invoked the privilege when covering up torture and abuse at the Guantanamo Bay military prison and CIA “black site” prisons. When President Barack Obama was in office, he carried on Bush’s legacy of invoking state secrets to prevent torture victims from obtaining some semblance of justice.

In a key case, Mohamed v. Jeppesen Data Plan, which the American Civil Liberties Union (ACLU) summarized, “five survivors of the CIA’s rendition program” sued after they were subject to abuse and torture.

The Bush administration argued the case could not be litigated because “state secrets” would be disclosed. A district court agreed. Then, when the decision was appealed in the Ninth Circuit Court of Appeals, the Obama administration argued the “district court was correct to deny the plaintiffs any opportunity to present their case in court.” The Ninth Circuit ruled in favor of the survivors and “vacated the lower court decision.” Later, the Obama administration requested the court reconsider this decision and pushed for the case to not be litigated at all.

The Executive Branch had its way with the court. The ruling was reversed in September 2010, and the Supreme Court refused to hear an appeal in 2011.

This gave the government the ability to avoid having to answer for its barbarism. According to an ACLU profile of Ethiopian native Binyam Mohamed, who was a plaintiff in the case, he was rendered from Pakistan to Morocco on an aircraft, which received flight and logistical support services from Jeppesen Dataplan, Inc.

Mohamed was handed over to interrogators in Rabat, Morocco, where he was detained and tortured for eighteen months. He was routinely beaten, “sometimes to the point of losing consciousness.” He “suffered multiple broken bones.” His genitals were once “cut 20 to 30 times.” In another instance, “hot stinging liquid was poured into open wounds on his penis as he was being cut.” He was threatened with rape, electrocution, and death, forced to listen to loud music for long periods of time, and “placed in a room with open sewage for a month.” Mohamed also was “drugged repeatedly.”

Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and a representative of Gul Rahman’s estate sued Mitchell and Jessen. Salim and Soud were kidnapped by the CIA and suffered torture and experimentation. Rahman was captured by the CIA and tortured until he died at a secret prison referred to as COBALT in the Senate intelligence committee’s report on the torture program.

According to the ACLU, Salim and Ben Soud live with lasting psychological and physical damage from being subjected to “solitary confinement, extreme darkness, cold, and noise, beatings, starvation, stress positions, prolonged sleep deprivation, confinement in coffin-like boxes and water torture.”

The lawsuit alleges the CIA immediately established conditions for “learned helplessness” by cutting off all of Salim’s clothes and then forcibly inserting “an object into his anus,” causing Salim “excruciating pain.” They took photos, put Salim in a diaper, pants, and a short-sleeved shirt. He then had earplugs stuffed in his ears, a hood put over his head, and a pair of goggles and headphones placed over his hood and earplugs. Then, he was cuffed and shackled. He was “disoriented and terrified” and brought on board an aircraft, where he was chained to the floor and flown for at least eight hours.

These techniques for creating “learned helplessness” in a person like Salim were developed by Mitchell and Jessen. They played a role in their administration at several “black sites.”

The civil case against CIA psychologists involved in the torture program will not be the last time the Trump administration invokes the “state secrets privilege.” And, unfortunately for victims of human rights abuses, there are plenty of precedents, where Obama and Bush convinced federal judges to block victims from getting their day in court. The Trump administration has that history to embolden their efforts in thwarting these cases brought by the ACLU.