The American Civil Liberties Union (ACLU) filed a landmark lawsuit in federal district court in Washington state against two psychologists, James Mitchell and Bruce Jessen, the architects of the C.I.A. interrogation program conducted in the wake of 9/11 at the agency’s secret prisons. The complaint, available here, was filed on behalf of three former C.I.A. detainees, and it alleges that defendants Mitchell and Jessen developed an experimental torture program and sold it to the agency for $81 million.
According to the lawsuit, defendants Mitchell and Jessen committed torture, human experimentation, and war crimes because of their roles in the secret interrogation program. The torturous interrogation techniques devised by Mitchell and Jessen included waterboarding, sleep deprivation, isolation and stress positions. These techniques inflicted severe physical and mental pain on detainees to induce a state of “learned helplessness,” where detainees become passive and fully compliant with all of their interrogators’ demands. According to the complaint, these techniques amounted to torture and cruel, degrading and inhuman treatment as well as war crimes. In addition, the complaint alleges that Mitchell and Jessen kept detailed logs of interrogation sessions in order to analyze detainees’ reactions to torture, calibrate the methods used, and provide the Bush administration with false assurances that such practices were “safe” and “effective.” According to the complaint, collecting such information without informed consent constitutes unlawful research and experimentation.
All three causes of action – torture/cruel, degrading and inhuman treatment, war crimes, and unlawful experimentation- were pleaded in this complaint under the Alien Tort Statute. The Alien Tort Statute is a federal statute which provides that United States’ federal courts shall have jurisdiction over law suits by aliens for torts committed in violation of the law of nations. The statute was dormant for two centuries, before it was resurrected in the famous Filartiga v. Pena-Irala case, in which the Second Circuit held that a Paraguayan national could sue another Paraguayan national in a United States’ court, under the Alien Tort Statute, for violations of international law (kidnapping and torture leading to death) that occurred in Paraguay. More recent judicial decisions, however, have limited the ability of foreign plaintiffs to sue in American courts under the Alien Tort Statute. In light of the 2004 Supreme Court opinion in Sosa v. Alvarez Machain, federal courts are only authorized to recognize limited causes of action under the Alien Tort Statute, for violations of clearly defined, widely accepted human rights norms. The complaint alleges that the three causes of action mentioned above (torture/cruel, degrading and inhuman treatment, war crimes, and unlawful experimentation) constitute such violations of widely accepted international law norms, as evidenced by both treaty and customary law. Moreover, in light of the more recent Supreme Court opinion in Kiobel v. Royal Dutch Petroleum (2013), federal courts will only have jurisdiction over non-citizens’ claims for violations of international law when such claims “touch and concern the territory of the United States.” According to the complain, the territoriality requirement has been met in this case, because both defendants are American citizens and reside in the United States, because the defendants devised their torture plan in the United States, because they supervised and implemented the plan from the United States, and because the ill-treatment of the three detainees took place while they were held at United States-operated detention facilities.
According to the complaint, “Congress’s express intent in enacting the ATS was to give non-citizens access to U.S. courts to hold U.S. citizens accountable for violations of international law norms that “touch and concern” the United States, as Defendants’ actions do.” It will be interesting to read the defendants’ answer (interestingly, the government is contractually obliged to pay for the defendants’ legal defense), as well as to predict the court’s treatment of this type of lawsuit – filed post-Sosa and post-Kiobel, but raising completely different legal issues, involving potential United States governmental liability for possible violations of international law norms. According to Physicians for Human Rights, this lawsuit is a “landmark step toward accountability.” I do not disagree, but suspect that the district court may dismiss the case at the pleading stage. Stay tuned for further developments on this case.