SEATTLE (AP) — Lawyers for two psychologists who developed harsh interrogation methods in the government’s war on terror asked a judge Friday to allow them to interview two CIA officials and have access to documents the government claims are secret.
But government lawyers told the federal judge in Spokane, Washington, that the officials and documents are protected under the state secrets privilege and making them public would threaten national security.
The ACLU, which sued psychologists James Mitchell and Bruce Jessen on the behalf of three men who contend they were tortured using techniques the psychologists designed, told the judge the material and CIA officials aren’t needed to decide the case.
ACLU lawyer Dror Ladin said the case is about the design of the torture program, not about the people who administered it.
U.S. District Court Judge Justin Quackenbush said the agents’ testimony is “somewhat collateral” to the case and may not be needed. The judge ruled Friday that one of the documents could continue to be redacted under the state secrets privilege, and he planned to review the other 46 documents before deciding what could be included in the case.
The lawyers met over the lunch break and narrowed the list of documents to be reviewed down to seven, some of which are challenged on attorney-client privilege and other grounds.
Mitchell and Jessen ran a Spokane-based company that received $81 million from the CIA to develop methods to extract information that included waterboarding and sleep deprivation. President Barack Obama terminated their contract in 2009. A U.S. Senate investigation in 2014 found that Mitchell and Jessen’s techniques produced no useful intelligence in the war on terror.
The American Civil Liberties Union sued the psychologists in 2015 on behalf of Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and the estate of Gul Rahman, who died in custody. The U.S. Department of Justice became involved in the case to represent the government’s interests in keeping classified information secret.
On Friday, attorney Brian Paszamant, representing the psychiatrists, said the state secret privilege doesn’t apply to CIA officials James Cotsana and Gina Haspel because the fact that they worked in the CIA interrogation program has already been made public.
“We know she was involved,” Paszamant said of Haspel, and deposing her would allow the defense to learn exactly what Mitchell and Jessen did in the program. The psychiatrists are not allowed to say what they did because they’re bound by CIA non-disclosure agreements, he said.
Paszamant said the psychiatrists were only involved in the “high-value detainee” program and did not know that the CIA planned to use the methods they developed on lower-level suspects.
“There was no ‘one-big’ program,” Paszamant said. “Haspel and Cotsana can speak to the granular in ways the others can’t.”
The sealed and redacted documents also create a problem because the defense is forced to guess at what they contain based on the classified summary, Paszamant said.
“You have an obligation to look at the documents with a skeptical eye to see if the privilege is evoked too broadly,” he told the judge, adding that he should consider if the material has already been made public though Congressional hearings or media reports.
Andrew Warden, a lawyer for the Justice Department, said the redactions are designed to protect CIA personnel, the locations of the interrogation sites and any foreign officials who may have been involved.
Warden said he could not confirm or deny whether Haspel or Cotsana were involved in the CIA interrogation program.
The trial for the civil case is set for Sept. 5.
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