Bruce Jesson and Jan Mitchell are psychologists whose company received about eighty one million dollars from the CIA to develop the CIA's post nine eleven methods to obtain information from prisoners, including water boarding, water boarding, starvation, and sleep deprivation. The s c l YOU sued them on behalf of three men who are allegedly kidnapped, brought to so called CIA black sites, and tortured using techniques designed by the psychologists.
One of the men died in captivity, and the other two contend that they were water boarded and beaten before they were then released because officials determined that they didn't pose a threat. Now, as the lawsuit proceeds, attorneys for the psychologists want to obtain CIA records to defend their clients, and the judge in the case is given the CIA time to decide whether it wants to try to keep
some of its records secret. Here to talk with us about the cases, Margaret Chatterthwaite, the faculty director of the Robert L. Bernstein Institute for Human Rights at n y U Law School. Meg Let's start by talking about what this case is, what what what exactly is going on here?
What's the lawsuit. Right, So the lawsuit is an incredibly important one UM in the history of the efforts to seek accountability for the torture program or the enhanced interrogation program that was run during the George W. Bush Um presidency. And the reason it's an important case is because it's actually against the what is alleged to be at least the architects of the torture program itself, and that's the
two defendants you described. It's also important because it's one of the first cases where until this point the U. S. Government has not intervened or been a party and asserted what's called the state secrets privilege to try to get rid of a lawsuit. So it's it's really a case that has gotten as far as any other case and and potentially further depending on what happens by this deadline that you mentioned, Jens, Will you explain why the CIA or the government is not part of this lawsuit? Well?
The sorry you said, who's part of this lawsuit? Why it just explained why the CIA isn't being sued or the federal government. Well, because they went directly after the psychologist, which was an interesting um, which was an interesting strategy to go after Mitchell and Jens Jesson directly. Um, since they were the architects of the theory behind the torture they really are in a unique position in terms of in terms of their liability. And that's really what's generated
the odd conflict in this case. Up until now, the CIA and the federal government and the psychologists who constructed the torture program, we're all on the same side. So for example, when the when the U. S. Senate under the Obama presidency, when Feinstein was running, the Senate decided
to conduct a really wide ranging inquiry into the torture program. Uh, they were looking for documents from the from the CIA and the federal government, and and and in that situation, the psychologists and the CIA were basically on the same
side and wanting to keep all the information secret. But now dispute has broken out between the psychologists and the CIA, which are now on opposite sides of the of this dispute because the psychologists say, hey, we need access to the records about the torture program in order to defend ourselves against this against this lawsuit, Whereas I'm pretty sure the federal government and the CIA are going to say
we want this stuff kept secret. Well, Meg, in terms of keeping things secret, Uh, you know you mentioned that there's a complicated procedure here for figuring out whether these kinds of documents can come to the light of day in court. Can you take us through how the court's going to end up reviewing the documents and making that decision. Sure, So, if the US government does assert state secrets, it has
to do so using a very specific formal procedure. Um. Now, as we've already mentioned, the U S Government is not a party in this case. So the first thing that will have to do, and I will actually do this at the same time, it will have to make a motion to intervene in the case, and that will allow it to then also make a motion to assert the
state secrets privilege. And that assertion both has to be in that formal motion and also has to be supported by two affidavits from the head of the agency that's asserting the privilege. Here, it would be the CIA director um and one of the public affidavit in which he sets out the reasons for this assertion, and the other is a secret classified ex parte. So only for the judges eyes um declaration in which he sets out, you know, anything that needs to remain classified that the judge needs
to take into consideration. Then the judge has to make a determination about whether the privilege is properly invoked, So did they actually follow this proper procedure? Um? And then he has to determine whether, um, what would be the effect of the assertion of that privilege? So does it actually deprive the defendants of their defense? Um? If so, is that a valid defense and not just a hypothetical one that they have UM invoked in order to you
make this assertion um. And at that point, let's say the judge decides that it was properly invoked and it does deprive the defendants of a defense, then the judge has to determine what's the effect on the lawsuit as a whole. And that's where I think you get into, um, the fact that this case is unique and that there are so many documents and so many facts already in the public um, including statements and even a book by Mitchell himself about the role of these two defendants in
the torture program. So Jen's will that make it more difficult two for the CIA to retain the privilege? UM. I think it will make it more difficult UM. So much of this is now in the public record that the administration is going to have a hard time UH convincing the court that all of this should be shielded
from from public view. That being the case, I think that there's a huge number of deep tales UM that are not in the public record in terms of UM, the specific uh nature of the interrogations, the injuries UM, the the exact role that Mitchell and Jesson played UM. A lot of the details are not in the in the public record, and I think the government could make a case that this would be really damaging if, if, if some of this UM details were released to the public.
One thing I'd say is that a lot of this information was already collected by the Senate Select Committee on Intelligence that UM investigated all of this, but the only part that was publicly released UM was was a very short executive summary. Actually it wasn't that short, but the
underlying report was never released to the public. I mean that's volumes and volumes of detailed information, and the government, in particular the intelligence community kind of fought tooth and nail to make sure that that underlying document UM was never released to the to the public. And you know, my bead is that the government in this case is going to be equally um insistent that the you know,
that the details not be released to the public. That's Jen's David Allan, Associate Dean for Academic Affairs and Professor of Law at Cornell Law School, and our other guest Margaret meg shattered Waite to the faculty director at the Robert L. Bernstein Institute for Human Rights at n Y You thanks to both of you for being on Bloomberg Law.
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