Scotti A. Hill for GlobalJusticeBlog
The 2016 campaign trail was replete with irregular statements from one of America’s most unconventional candidates. “Don’t tell me it doesn’t work — torture works,” Donald Trump emphatically stated at a campaign event to a retirement community in February 2016. In his call to be tougher on terrorism, Trump went even further by stating that under his presidency, waterboarding, the extreme interrogation practice that ceased nearly a decade ago, would make a triumphant return. U.S. law defines torture as an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control. While the United States has publicly condemned torture on many occasions, it is widely acknowledged that the Central Intelligence Agency made great use of torture against terrorist suspects after the September 11, 2011 terrorist attacks.
Now, with a bit of historical hindsight, much can be gleaned from the CIA’s short but brutal use of Enhanced Interrogation Techniques (EIT) after the 9/11 attacks and during the Iraq War. While the CIA maintains that the use of harsh interrogation techniques produced valuable intelligence that stopped additional terrorist plots against the United States and led to the capture of 9/11 mastermind Osama Bin Laden, a lengthy Senate Intelligence investigation completed in 2014 produced contradictory findings. In the report, the Senate stated that the “CIA was encouraged by political leaders and the public to do whatever it could to prevent another attack [and] under any common meaning of the term, CIA detainees were tortured.”
Reaction to disclosure of CIA and military prisoner abuse had already occurred before the Senate report. In 2009, President Obama signed Executive Order 13491 to prevent the CIA from holding detainees for longer than a short period of time and to limit interrogation methods to those found in the Army Field Manual. Additionally, the Senate codified Obama’s executive order in an amendment to the 2010 National Defense Authorization Act, with a resounding majority of votes. Now that this provision is embedded in law, any executive action brought by the Trump presidency on this matter would be very difficult, presumably requiring the cooperation from both the Senate and House to pass the measure. While Congress’ initial reaction to the Senate Intelligence report was mixed, no recent efforts have been made to revive the practice, and it is unlikely anything will follow in the future. However, constituents largely motivate Congress’ actions, worrying insiders who note that the United States has a more favorable attitude toward torture than most of the world.
The aforementioned measures should comfort anti-torture advocates, despite now-president Trump’s public support. In August 2017, yet another victory emerged. In a historic case, the American Civil Liberties Union (ACLU) brought suit, on behalf of three detainees, against two psychologists tasked with crafting the CIA’s severe interrogation program. In a settlement conference, ACLU attorneys praised the outcome as the first time the CIA or its private contractors has been held liable for torturing suspects during the war on terror.
Salim v. Mitchell
In this case, the plaintiffs Suleiman Abullah Salim, Mohamed Ahmed Ben Soud, and Gul Rahman, all foreign citizens, brought suit against defendants James Mitchell and John Jessen under the Alien Tort Statute for psychological and physical torture initiated by the defendants through the use of their program by the CIA. Salim worked as a fisherman in Somalia before being captured by the CIA in 2003, where he was eventually held at U.S. government sites in Afghanistan for sixteen months. Salim alleged that from 2003 until his release in 2008, he was subjected to numerous coercive methods including: prolonged sleep deprivation, wailing, stress positions, facial slaps, abdominal slaps, dietary manipulation, facial holds, cramped confinement, prolonged nudity, and water dousing that approximated waterboarding. Pakistani and U.S. forces captured both Mr. Soud and Mr. Rahman in 2003 and 2002 respectively. After denying that he had any connection to Al-Qaeda, Soud was subjected to near identical interrogation techniques as that of Salim. After the U.S. released Salim in 2003, he was imprisoned by the Libyan government until 2011. On November 19, 2002, Mr. Rahman was chained, partially nude, in a stress position, with very cold temperatures. The next morning he was discovered dead, and a subsequent autopsy determined that his cause of death was hypothermia. No formal charges were made in connection with this incident and the plaintiffs allege that Mr. Rahaman’s death was hidden from the public until 2010.
The defendants James Mitchell and John Jessen are both U.S. citizens, trained psychologists and CIA independent contractors, responsible for producing a research project entitled, “Recognizing and Developing Countermeasures to Al-Qaeda Resistance to Interrogation Techniques: A Resistance Training Perspective.” In their tenure as CIA contractors, Mitchell and Jessen successfully convinced the CIA to propose 11 of the 12 recommended interrogation methods to the Attorney General, who approved all but waterboarding. The plaintiffs alleged that in concert with the CIA, the defendants supervised and oversaw the implementation of the torture program used against detainees, and were compensated over $80 million to deliver their services and advice to security personnel at all CIA detention sites.
In response to the claim under the Alien Tort Statute, the defendants made the following arguments in a motion for summary judgment: that 1) the court lacked jurisdiction under the Political Question Doctrine, 2) their work for the CIA entitles them to derivative sovereign immunity, 3) the plaintiffs lack jurisdiction under the Alien Tort Statute, and 4) the defendants are not directly liable under international law nor did they aid or abed or conspire with those who are.
In response to the Political Question Doctrine, the federal court considered whether this venue was appropriate to consider the matter. In holding federal jurisdiction appropriate in this case, the court noted that other courts, including the Supreme Court, have consistently decided similar matters, and “consider challenges to the legality of detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base.” The defendants claimed their work as private contractors on the government’s behalf granted them “derivative sovereign immunity.” The court rebutted this contention by noting the defendant’s direct authorial control in crafting the program, including the recommendation of EIT and waterboarding, which was then adopted by the CIA. In this case, it defies logic that the defendants could both lead the CIA’s torture effort and subsequently use the agency as a shield for their efforts. Lastly, the defendants’ attempt to defeat the application of the Alien Tort statute for lack of jurisdiction was denied by the court. Here, the court recognized that the plaintiffs succeeded in affirming the three elements for a successful claim under the Alien Tort Statute (ATS): 1) the plaintiffs must be aliens, 2) they must be claiming damages for a tort, and 3) the tort must result from a violation of the law of nations or a treaty of the United States.
The parties were initially set for trial in September 2017, but settled in mid-August. Time will tell whether similar cases may follow, but for now this case affirms a shifting attitude toward torture in the United States, one that promises to be more diligent against unquestioning acceptance of such practices that unequivocally break international legal standards.
Scotti Hill is a 3L specializing in intellectual property law. She has worked at the Center for Art Law in New York City and currently works as a law clerk at the University of Utah’s Technology Venture Commercialization Office.
 Jenna Johnson, “Trump says ‘Torture Works,” Backs Waterboarding and ‘Much Worse,’” The Washington Post (Feb, 17, 2016), https://www.washingtonpost.com/politics/trump-says-torture-works-backs-waterboarding-and-much-worse/2016/02/17/4c9277be-d59c-11e5-b195-2e29a4e13425_story.html?utm_term=.21020b69022a.
 18 U.S.C. §2340.
 Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, Findings and Conclusions (December 3, 2014).
 Johnson, supra.
 Adam Chandler, This is how a Prisoner of War Feels About Torture, The Washington Post, (Dec. 9, 2014), https://www.politico.com/story/2017/08/17/aclu-lawsuit-cia-interrogation-settlement-241742.
 Kevin Sieff, More Americans Support Torture than Afghans, Iraqis and South Sudanese. Why? The Washington Post (Dec. 5, 2016), https://www.washingtonpost.com/news/worldviews/wp/2016/12/05/more-americans-support-torture-than-afghans-iraqis-and-south-sudanese-why/?utm_term=.169d6c452a90.
 Settlement Reached in ACLU Lawsuit against CIA Interrogation, The Associated Press, https://www.politico.com/story/2017/08/17/aclu-lawsuit-cia-interrogation-settlement-241742.
 Salim v. Mitchell, WL 3389011 (E.D. Wash 2017).
 28 U.S.C. § 1350.
 Id. at 74.
 Id. at 164.
 Id. at 165-167.
 Id. at 43-44.
 Id. at 65-68.
 See Rasul v. Bush, 542 U.S. 466 (2004).
 See Mujica v. AirScan Inc., 771 F.3d 580, 594 (9th Cir. 2014).
 Associated Press, supra.