In a First, the Trump Administration Moves to Invoke Secrecy Claims in Torture Lawsuit

As a landmark case surrounding the CIA’s Bush-era torture program approaches its trial date, the government is seeking to block the release of certain information it claims must be kept secret. Yet unlike previous cases in which the government successfully blocked torture lawsuits from moving ahead, even the government’s new claims make clear this case can go forward and CIA torture survivors should finally have their day in court.

The government filing comes in Salim v. Mitchell, a lawsuit against two psychologists who devised and implemented the torture program at the behest of the spy agency. The ACLU represents Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and the family of Gul Rahman over the torture the three endured in a secret CIA prison. In accordance with detailed protocols that two CIA-contracted psychologists based on experiments conducted on dogs, the men were confined in dungeons, hung by their arms from the ceiling for days, stuffed into coffin-like boxes, and kept naked, degraded, and starved. Their lawsuit seeks to hold accountable James Mitchell and John “Bruce” Jessen, the contract psychologists who designed and helped implement the systemic abuse of CIA prisoners, pocketing millions of dollars for their work.

In yesterday’s filing, the Trump administration does not claim that the case should be dismissed on secrecy grounds — although Mitchell and Jessen have indicated they might seek such a dismissal themselves. Rather, the government is arguing that information in certain documents, including information about people and countries who were complicit in CIA torture, shouldn’t be disclosed. It is also arguing that CIA personnel who have not been officially acknowledged as part of the torture program — including Gina Haspel, the new deputy director of the agency — should not have to answer questions that would reveal their roles.

The government’s brief notes that “[t]he existence of the program and a significant amount of information about the operation of the program have been declassified and publicly acknowledged.” That information includes the roles that Drs. Mitchell and Jessen played in the CIA’s torture program as well as the abuse inflicted on Mr. Salim, Mr. Ben Soud, and Mr. Rahman. With so much already and indisputably in the public record, the government makes clear in its brief that it is not seeking dismissal of the torture survivors’ case.

The government’s filing marks a change from recent state secrets claims in other cases. The state secrets privilege is a legal doctrine that can be legitimately applied only in the very narrowest of circumstances. Under both the Bush and Obama administrations, however, the government invoked the “state secrets privilege” far too broadly. Both administrations sought to use claims of secrecy to completely shut down lawsuits by survivors of torture, claiming that even considering their claims would harm national security. Unfortunately, judges often gave in to these efforts. As a result, despite numerous lawsuits against the architects and perpetrators of the CIA torture program, not a single victim had their claims considered by an American court. Salim v. Mitchell changes that dismal record.

When properly invoked, the privilege permits the government to block the release of information in a lawsuit that, if publicly disclosed, would cause harm to national security. The government might legitimately invoke it, for example, to prevent the release of technical specifications of very sensitive military equipment or the date of a future military operation. The state secrets privilege should never be used to thwart accountability for government wrongdoing or to avoid public embarrassment.

Whatever the government’s arguments in previous torture cases, the secrecy landscape has fundamentally changed in recent years. There are now official public reports naming our clients, describing their torture, and detailing the two psychologists’ responsibility. And the ACLU’s own Freedom of Information Act lawsuits have made public a huge amount of the government’s own records about the CIA torture program.

That’s why, when the ACLU filed the Salim case in November 2015, we formally wrote to former Attorney General Loretta Lynch urging the government not to invoke the state secrets privilege. Our call was echoed by a range of allies, including Human Rights Watch, the Constitution Project, Physicians for Human Rights, and the National Religious Campaign Against Torture.

Our argument resonated. During the Obama administration, the government did not try to stop the case from going forward, and there have been unprecedented breakthroughs for accountability and transparency in the case. For the first time:

• Rather than restricting its analysis to secrecy, the court evaluated the substance of the defendants’ attempts to dismiss the case. And in a historic first for victims and survivors of CIA torture, the court firmly recognized our clients’ right to seek justice. It repeatedly rejected the psychologists’ attempts to dismiss the case, affirming that our clients’ torture claims were neither barred as “political questions” nor blocked by the Military Commissions Act, despite the defendants’ claims to the contrary.
• Former top CIA officials are having to answer, under oath, questions about the CIA torture program. Just this week, Jose Rodriguez, an architect of the Bush-era torture program who the government once described as “the nation’s top spy,” had to answer questions by both parties in this lawsuit. He testified for hours about the CIA’s torture program in the presence of government lawyers.
• Hundreds of never-before-seen documents have been made public through the discovery process in the case, revealing details about torture profiteering, the clinical brutality of the CIA’s torture program, concerns within the CIA about Mitchell and Jessen’s ethics and qualifications, plans for a secret Department of Defense prison, and much more. These declassified documents are available to everyone in the ACLU’s Torture Database.

Transparency matters. The public still does not know the full extent of the CIA program’s legal and moral failings or its evasions and misrepresentations about that program to Congress, the White House, and the public. But thanks to an ongoing struggle for transparency on the part of torture survivors, their civil society allies, and congressional investigators, any attempt to argue that our clients’ claims are too secret to litigate would be absurd.

Whether or not the government’s more limited state secrets claims in this case are upheld, it’s clear that the Salim case can go forward. U.S. government’s torture victims can have their day in court.