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The two psychologists who created the CIA’s so-called “torture program” will give their first public testimony this week during the ongoing trial of five men accused of plotting the 9/11 attacks.
The case, United States v. Khalid Sheikh Mohammed, et al., involves five accused al-Qaeda members facing the death penalty before a military tribunal in Guantanamo Bay, Cuba, for their alleged roles in the 2001 attack that left nearly 3,000 dead. In the coming weeks, the psychologists, James Mitchell and Bruce Jessen, will likely reveal previously unknown details of how the CIA, in the wake of 9/11, turned to aggressive, unreliable interrogation techniques, like waterboarding, cramped confinement, sleep deprivation, mock burials, and others.
If the military judge decides the CIA’s torture coerced the alleged terrorists during questioning, that could render much of the prosecution’s evidence useless — and cripple one of the only 9/11 trials to come out of Guantanamo Bay, nearly 20 years after the attacks.
“For years and years and years, these military commissions at Guantanamo have been circling around the issue of torture,” said ACLU staff attorney Dror Ladin, who deposed Jessen under oath in 2017. “The sort of crazy procedures that have taken over these military commission trials are built from the original sin of torturing the defendants. It’s made it almost impossible to see how you could have a fair trial.”
“It’s made it almost impossible to see how you could have a fair trial.”
Prosecutors say Khalid Sheikh Mohammed brought the idea of flying planes into targets to al-Qaeda leadership and masterminded the attacks alongside Osama bin Laden. The other four defendants, including “20th hijacker” Ramzi bin al-Shibh, stand accused of helping the hijackers train, plan, and finance. Captured soon after 9/11, the men weren’t charged until 2008 and have remained at the Guantanamo Bay detention center through more than a decade of pretrial motions. Their formal trial is scheduled to start in January 2021.
At this week’s hearing — the fortieth so far — the judge will consider whether statements from the defendants were given voluntarily, considering the interrogators’ aggressive tactics. Mitchell previously admitted to personally waterboarding Khalid Sheikh Mohammed to “induce fear and panic” as a precursor to interrogation. All five defendants claim to have been tortured in CIA prisons.
Now, testimony from the two psychologists will be key to establishing whether the prosecution’s evidence is tainted. What they say could also affect the viability of the military commissions set up to try Guantanamo Bay detainees. Earlier cases focusing on low-level al-Qaida foot soldiers have been overturned, and if confessions obtained through torture are no longer useable, other high-level prosecutions may wither.
“We tortured some folks”
Following the 9/11 attacks, the CIA captured hundreds of suspected terrorists, though the criteria for detaining them were notoriously murky.
In 2002, the agency turned to Mitchell and Jessen, military contractors who’d trained soldiers to endure torture at the U.S. Air Force’s Survival, Evasion, Resistance, and Escape (SERE) school, for help questioning those detainees.
The pair aimed to produce “learned helplessness” in the detainees, breaking them down so completely that they could no longer resist an interrogator’s questions. Critics say the techniques they advocated amounted to torture, yet the tactics were endorsed at the highest levels of the U.S. government and enacted at CIA “black sites” around the world. Years later, President Barack Obama admitted, “We tortured some folks.”
Mitchell and Jessen, who made $81 million for their work, have said ultimate responsibility for the program lies with the CIA and claimed they tried to leave the program. The two also avoided taking the stand in a trial once before. In 2015, the ACLU sued them on behalf of three men who were kidnapped by the CIA and put through its interrogation program. Two years later, the psychologists agreed to a settlement rather than appear in court.
Mitchell, who’s vocally defended his work in public (and in a book), will testify first. “I was told for years that my activities had saved lives and prevented attacks,” he said interview with VICE soon after his role in the interrogation program was confirmed. “And now I'm being denigrated by some of the very people who pushed me to use harsher measures."
Mitchell will likely cover his and Jessen’s roles in every step of questioning the accused terrorists, from the initial interrogations to the creation of “enhanced techniques,” which would become the CIA’s formal torture program. Jessen, although he’s been less public in his defense, will likely cover much of the same territory during his testimony.
“It’s certainly an important moment for transparency, because we’re now talking about testimony from people who were intimately involved in either personally torturing the defendants,” Ladin said, “or in setting up the program in which those defendants were tortured.”
_Cover: Protestors demonstrate the use of waterboarding on a volunteer in front of the Justice Department in Washington in this Nov. 5, 2007, file photo. (AP Photo/Manuel Balce Ceneta, File)_