Usually, and for understandable reasons, the CIA frowns on people comparing it to Nazis, whether the insult comes from random trolls or the president of the United States. Rarer still are Nazi comparisons coming from the CIA’s own contractors.
Vanishingly, once-in-a-lifetime, Halley’s Comet-rare are the times when those CIA contractors will not only compare the agency to Nazis, but themselves to the manufacturers of poison gas used in the Holocaust—and do it in their own defense.
As contractor psychologists for the agency, James Mitchell and Bruce Jessen played an integral role in designing the CIA’s post-9/11 torture program.They personally waterboarded Abu Zubaydah, a detainee effectively used as human guinea pig for torture. And the company they subsequently founded to contract with the CIA on the brutal interrogations earned them $81 million, according to the 2014 Senate torture report. Senator Dianne Feinstein called it “a stain on our values and on our history.”
Unlike every senior U.S. official who ordered and implemented the program, Mitchell and Jessen now face civil – though not criminal – liability. Three survivors of the CIA torture program have sued the two contractors in federal court for compensatory damages. They are joined by the estate of Gul Rahman, who died from hypothermia in CIA custody in November 2002 in an undisclosed prison in Afghanistan known as Cobalt. Jessen was present for Rahman’s interrogation.
After failing to convince a federal judge in Washington state to dismiss the suit, attorneys for Mitchell and Jessen have settled on an unexpected argument ahead of a critical Friday court hearing. They’re like contractors to Nazis and other war criminals, attorneys claim, but the sort that war-crimes tribunals have exonerated.
In a recent filing in the case, Mitchell and Jessen’s attorneys portray the two contract psychologists as analogous to those who made the Zyklon B gas used to murder Jews and others in Nazi concentration camps.
Mitchell and Jessen’s lawyers note that in a British military court in 1946, the Zyklon manufacturing company Tesch & Stabenow’s “first gassing technician” was ultimately acquitted. Although the technician, Joachim Drohsin, played “an integral part of the supply and use of the poison gas,” the British court wrote, he was “without influence” and was found not guilty.
“Here,” Mitchell and Jessen’s attorneys argue, “it is undisputed that, as independent contractors serving on a larger interrogation team, Defendants lacked authority to ‘control, prevent or modify’ the CIA’s decision to use [torture] on detainees.”
Since the contractors were unable to make the decision to torture – instead designing torture regimens for the CIA and implementing them – their lawyers contend they are modern-day Drohsins, supplying modern-day Zyklon and advising on its use. (The 1946 court found the owner and second-in-command at the Zyklon manufacturing firm guilty and condemned them to death.)
It is not the only Nazi comparison Mitchell and Jessen roll out in their defense.
The psychologists note that the Nuremberg tribunals acquitted Karl Rasche, a banker who loaned SS head Heinrich Himmler, the architect of the Jewish “Final Solution,” large sums of money. The tribunal said the loan was like offering “raw materials” to a “builder of a house that the seller knows will be used for an unlawful purpose,” a point the contractors’ attorneys seized upon.
“By providing a list of pre-existing SERE [survival, evasion, resistance, escape] techniques to the CIA – which had already decided to use an approach on Zubaydah ‘different’ from the FBI’s – Defendants, at most, provided the ‘raw materials,’” Mitchell and Jessen’s attorneys write.
“It is extraordinarily rare for anyone to willingly compare themselves to people who aided and abetted some of the worst crimes in human history,” Dror Levin, an ACLU attorney representing the torture survivors, told The Daily Beast.
At other points in their brief, Mitchell and Jessen contend that the three surviving detainees were too small-time for them to focus on, as the contractors only focused on so-called “HVTs,” or high-value targets. (Though the 2014 Senate torture report recounts in exhaustive detail how the techniques they designed for Abu Zubaydah – from the bodily contortions called “stress positions” to prolonged nudity to days-long sleep deprivations – were used on at least 118 others.)
But they cannot say the same for the now-deceased Gul Rahman. Instead, they have a different exculpation in mind.
“Jessen only applied a single ‘insult slap’ in a non-EIT [enhanced interrogation techniques, a torture euphemism] context to Rahman under the authority of the Chief of Base (“COB”) for Cobalt,” the attorneys write.
On Friday, a judge will hear the opposing sides’ arguments for why the case should or shouldn’t proceed to a full trial. But in their filing, Mitchell and Jessen have already written a new chapter in their own legacy.
“Like Ruehl and Graf in the Nuremberg trials, and Drosihn in Zyklon B, even if Defendants’ played an ‘integral part of the supply and use of the’ EITs (which they did not) this too could not render them liable for the CIA’s alleged ‘criminal use’ on Plaintiffs,” the attorneys write, “as Defendants had no ‘influence’ over the application of EITs on such unknown detainees selected by the CIA.”