David J Puentes – In 2014, the executive summary of the Senate Select Committee on Intelligence’s report relating to the Central Intelligence Agency’s use of torture was declassified and released to the public. Also declassified and released were the views of the minority of the committee and a response by the director of the Central Intelligence Agency, dated June 27, 2013.
The report itself, which remains classified, is more than 6,700 pages and analyzes the methods of interrogation employed by the C.I.A. in obtaining information from detainees after the terrorist attacks on September 11, 2001. Using the declassified Executive Summary as a basis, the American Civil Liberties Union (“ACLU”), on behalf of Sileiman Abdullah Salim, Mohamed Ahmed Ben Soud, and the estate of Gul Rahman (who died while in C.I.A. custody), filed suit against James Elmer Mitchell and John “Bruce” Jessen in the United States District Court for the Eastern District of Washington.
Mitchell and Jessen are psychologists whose expertise prior to their involvement in this program was training military members on how to resist interrogations. The C.I.A. contracted their company, Mitchell Jessen & Associates, to assist in designing a program aimed at defeating any training al Qaeda members may have received in resisting interrogations. The Complaint states claims for relief alleging “Torture and Other Cruel, Inhuman, and Degrading Treatment,” “Non-Consensual Human Experimentation,” and “War Crimes.”
The Complaint further sets forth that the suit is brought pursuant to “[t]he Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, enacted in 1789, [which] permits non-citizens to bring suit in U.S. courts for violations of the law of nations or a treaty of the United States. Under the ATS, federal courts are authorized to recognize a common law cause of action for violations of clearly defined, widely accepted human rights norms. The ATS extends jurisdiction to federal courts to adjudicate non-citizens’ claims for violation of those international law norms when the claims ‘touch and concern the territory of the United States.’” (citations omitted).
There is precedent of successful actions under the ATS, such as a $2 Billion judgment entered in the United States District Court in Hawaii against Ferdinand E. Marcos, former president of the Philippines who ruled under martial law for nine years. However, this was in the 1990s and more recent cases (specifically initiated by the ACLU against the C.I.A.) have not had such success.
In 2006, the United States District Court for the Eastern District of Virginia ruled that the United States’ claim of state secrets privilege was valid and granted the United States’ motion to dismiss the claim of Khaled El-Masari. El-Masari is a German citizen who claimed abduction by Macedonian authorities and subsequent torture by C.I.A. operatives and filed suit under similar ATS claims as those in this case. In 2007, the United States Court of Appeals for the Fourth Circuit affirmed the order dismissing El-Masari’s claims.
There, the court rejected an argument advanced by the ACLU, as here, that everything they needed in order to prove their allegations was already in the public record. The court, however, stated that it is not the same to argue a case in the court of public opinion as to litigate in a court of law and that where, as there, government secrets would have to be exposed in order to properly prosecute a claim or put forth a defense, the privilege triggers. Here, it is true that there an executive summary of the report numbering hundreds of pages in the public record. However, the Executive Summary that has been declassified contains many redactions and is merely what it claims to be, a summary. The report upon which is based, numbering over twelve times as many pages, is still classified information.
In addition to the possibility that the United States federal government could assert the privilege of state secrets to move that the action be dismissed, American University law professor Stephen Vladeck has pointed out that if the allegedly torturous conduct was nevertheless within the scope of their federal employment, the government could argue the case be dismissed and brought under the Federal Tort Claims Act.
As with most lawsuits filed, only time will tell what the result will be, but it seems as though the plaintiffs will have many hurdles to surpass if they are to be successful. Given prior failures of similar lawsuits it seems unlikely that there will be a different result here.
