James Mitchell Testifies at Guantanamo

Carol Rosenberg of the NYSlime describing the scene in [sarcasm] unbiased [/sarcasm] terms:

GUANTÁNAMO BAY, Cuba — On the witness stand was James E. Mitchell, a psychologist and architect of the Bush-era interrogation program that had inflicted torture on prisoners held in secret C.I.A. prisons after the Sept. 11, 2001, attacks.

Defiantly, he described how the program came about and why in his view it was necessary, growing emotional only when recounting how he came to the conclusion that it was his patriotic duty to personally implement the techniques he had devised.

Sitting yards from him in the military courtroom built specifically for their death-penalty trial were the five men accused of helping plot the attacks. All of them had been subject to the methods developed by Dr. Mitchell. Their alleged leader, Khalid Shaikh Mohammed, was waterboarded 183 times in March 2003 by a team including Dr. Mitchell. They sat impassively as he testified at a pretrial hearing in their case.

It was an extraordinary moment in the slow-moving justice system set up to try foreign prisoners of the war on terror, with American lawyers for defendants who were tortured more than a decade and a half ago flipping the script to question an interrogator from the so-called black sites.

Dr. Mitchell, a former contract psychologist for the C.I.A., expressed no regrets or contrition, tearfully saying he did it for the American people at a time when President George W. Bush’s administration feared a follow-on attack by airplane or nuclear bomb to the Sept. 11 hijackings that killed 2,976 people.

“I’d get up today and do it again,” he said.

“I thought my moral duty,” he said, choking up, “to protect American lives outweighed the feelings of discomfort of terrorists who voluntarily took up arms against us. To me it just seemed like it would be dereliction of my moral responsibilities.”

He was talking about the first man he waterboarded, a Palestinian known as Abu Zubaydah. In 2002, Mr. Zubaydah was the first known C.I.A. prisoner subjected to the full range of interrogation techniques, which also included sleep deprivation and being crammed inside a coffin-size box and slammed into a wall. He has never been charged with a crime and has never been to the war court but is held at Guantánamo as an indefinite detainee.

But the five men charged as conspirators in the Sept. 11 attacks were present. It was the first time they had seen Dr. Mitchell since their transfer to Guantánamo from the black sites in 2007. Lawyers for Mr. Mohammed and another defendant, Walid bin Attash, asked the judge to clear two thick binders of materials off the witness stand that had obstructed their view of him.

None of the defendants expressed any visible emotion, although defense lawyers had a psychologist and a psychiatrist with experience treating torture survivors in court to sit with two of them.

James Mitchell…..outstanding:

“I never thought of it as a Dr. Mitchell operation, or even as a CIA operation. I thought of it as America’s program,” Mitchell said. “I think the CIA was representing America at the tip of the spear.”

Mitchell, who waterboarded alleged 9/11 mastermind Khalid Sheikh Mohammed and other suspected terrorists, sparred with James Connell, a defense attorney for Mohammed’s nephew, Ammar al Baluchi. Mohammed, Baluchi, and three other charged with plotting 9/11 watched Mitchell’s testimony in the packed court.

Mitchell said he overheard, “The gloves are off,” during his initial April 2002 meeting at the CIA’s Counterterrorism Center, which he thought meant that, following the murder of nearly 3,000 people, the CIA was “intending to do whatever was legal to stop the next attack.”

“Are you going to argue that April 2002 was not right after 9/11?” Mitchell sharply asked Connell. “I saw you roll your eyes.”

“I’m not arguing anything,” Connell replied. “I was just doing the math.”

“I was told there was another catastrophic attack planned by the defendants, possibly involving nuclear weapons,” Mitchell said.

When Connell thanked Mitchell for traveling to Guantanamo Bay, Mitchell fired back.

“I actually did it for the victims and families, not for you,” Mitchell said.

Mitchell said he ignored Connell’s outreach prior to the hearing because he “assumed [Connell] had an agenda.”

“You folks have been saying untrue and malicious things about me and Dr. Jessen for years, so you shouldn’t be surprised I didn’t want to spend a lot of time with you,” he said.

Mitchell said there was a distinction between how the FBI and the CIA approached captured terrorists.

“The CIA was never interested in prosecuting — the CIA was not going to let another catastrophic attack go off,” he said. “They were going to walk up to the line of what was legal, put their toes on it, and lean forward.”

Connell told the judge that, although Mitchell is often portrayed as the face of the program, it was an institutional program and he is not a rogue actor.

“This whole effort to extract information from these detainees was an interagency and governmentwide effort,” the defense lawyer said.

“I didn’t stop to think about whether it was a full government effort … or about food fighting between the FBI and CIA,” Mitchell said. “My sole focus was on stopping the next attack.”

Related to this, Lawfare Blog’s Brian Greer writing last Friday:

The Senate Select Committee on Intelligence’s (SSCI’s) groundbreaking study on the CIA’s use of enhanced interrogation techniques (EITs) has been receiving attention again due to the release of the movie “The Report.” “The Report” focuses on the efforts of SSCI investigator Daniel Jones to research and eventually publish the so-called “Torture Report” that was released by the SSCI in December 2014 (referred to here as the “study,” to distinguish it from the movie title). In a companion Lawfare piece, I documented the film’s numerous inaccuracies with respect to how it portrays the CIA’s response to the SSCI investigation, based on my own experience with those events as a lawyer in the CIA’s Office of General Counsel. This post has a different purpose—namely, to document the significant shortcomings in the SSCI study that have little to do with the important debate over whether EITs were legal, moral or effective. These shortcomings have prevented the study from living up to its potential as a historical record and as a vehicle for long-term reforms. To the extent the study is held out as the role model for effective congressional oversight, it’s important to have a serious dialogue about these limitations—so that we can learn from these mistakes and avoid them in the future.

The SSCI study is undoubtedly an important document, and I am not suggesting that it be disregarded in its entirety. In particular, Part II of the study, which is a detailed, mostly factual chronology of the creation and operation of the interrogation program, is by far the most comprehensive public accounting available. It will be a valuable resource for years to come. In addition, if the study ultimately contributes to its goal of ensuring that the U.S. government never repeats these mistakes, it will have generated a critical achievement despite these flaws.

Notwithstanding these attributes, the SSCI study is still a limited document that didn’t live up to its full potential. The release of “The Report,” along with the five-year anniversary of the study’s publication, provides an opportunity to reflect on its long-term impact. In looking back, I believe that if the study had avoided the mistakes set forth below, it would have been more respected within the government and more persuasive with the general public. Instead, these problems allowed the study to be easily rejected by those who took issue with any one of the problems identified below. Most CIA officers I worked with, particularly the generation that joined the agency after the detention and interrogation program had been shut down, recognized that there were significant problems with the program. I knew few officers who were ardent defenders of the use of EITs (with the benefit of hindsight), and no officers who wanted to return to that practice. But virtually everyone I knew in the CIA and elsewhere in government immediately saw the SSCI study as a biased, agenda-driven document because of these flaws, and, as a result, they found little utility in it. They believed that the aim of the study was not just to ensure that EITs were never used again but also to inflict long-term institutional damage to the CIA and its officers. In addition, because of its misguided focus on “whether torture works,” the study ensured that the public discussion would focus on this issue and not any of the additional, more complicated questions the program raised relating to morality, legality, oversight, accountability and shared responsibility.

As documented in my companion Lawfare piece, I had no involvement in the detention and interrogation program (I joined the CIA in 2010 and left in 2018), and I am not a defender of the use of EITs. I strongly supported the large-scale declassification of information relating to the program (an effort I helped coordinate) and the need to have a public accounting of what occurred. In addition, I believe that strong, effective oversight is essential for the proper functioning of the CIA and for maintaining its credibility within the government and the general public. Based on these views, I believed that the SSCI study (if done right) presented a unique opportunity not only to help ensure that EITs were never deployed again but also to provide valuable insights into how the government should manage and oversee sensitive covert action programs in a time of crisis. It failed to live up to this potential in this regard.

Many of the study’s shortcomings documented below reflect deliberate choices made by the SSCI investigators, led by Jones. It is true that they had limited time and resources, and that every choice in an investigation requires making trade-offs. But Jones and his colleagues also spent four years generating a more-than-6,000-page report, so they cannot reasonably argue that any of these issues were beyond their reach. By presenting a more limited picture in the study, it was easier for Jones to support his thesis (which is also reflected in “The Report”) that the CIA cannot be trusted in any circumstance. “EITs never worked, and the CIA lied to everyone about everything” is a fairly simple argument. The trouble is that the real story of the interrogation program’s failures is much more complicated, and the study failed to grapple with the difficult questions presented by this more nuanced history.

In documenting the study’s shortcomings, my primary intent is not to provide substantive counterarguments to its factual findings and analytical assessments. Readers should refer to the CIA’s official response to the study for that and make their own judgment. Rather, my aim is to outline the study’s strategic mistakes, which have limited its long-term impact. In other words, this is not a rebuttal, but a road map for how the study could have been much better. Those strategic mistakes include the following:

Read Greer’s analysis because it is very apolitical and even-keeled.

I’ve covered this topic quite a bit in the past.  Click on the “CIA Interrogation Program” category to look back on previous posts.