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 , and detailing the two psychologists’ responsibility. And the ACLU’s own Freedom of Information Act lawsuits have made public a huge amount of the 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, 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 , 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 , the of the CIA’s torture program, concerns within the CIA about , plans for , and much more. These declassified documents are available to everyone in the .
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.
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Press ReleaseDec 2024
Free Speech
National Security
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Press ReleaseDec 2024
National Security
Religious Liberty
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VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
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ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.