Free as a bird, he bragged about his patriotic experiences torturing Jews and others and proudly presiding over the Final Solution. Of course, he wouldn’t call them death camps, he’d call them “relocation centers.” And he wouldn’t call it torture, he would call it, let’s say, “enhanced interrogation.” And through it all, he would claim, he was just following orders.
From August 2002 through January 2009, James E. Mitchell served as a contractor for the Central Intelligence Agency. He developed the program used to interrogate detainees in US custody in various secret CIA “black sites” around the world. He personally waterboarded Abu Zubaydah and Khalid Sheikh Mohammed, and interrogated 12 other “high-value detainees.”
Mitchell has never been prosecuted for violating the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, which is enforceable under U.S. Code Title 18 Sections 2340-2340A. Instead, he has written a book entitled Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America. It is a remarkably candid exercise in justifying and excusing his brutal conduct. He seems quite comfortable admitting to committing crimes over and over again, because, as he explains several times, he was just following orders — in this case, the discredited “Torture Memos,” written by Bush administration lawyers.
Mitchell, who holds a PhD in clinical psychology from the University of South Florida, served 22 years in the US Air Force, including seven years at the USAF Survival School in Spokane, Washington. In August 2001, Mitchell contracted with the CIA to develop new strategies to assess foreign CIA operatives (“assets”) in high-risk situations. A month later, the 9/11 terror attacks occurred, which Mitchell says “killed approximately three thousand innocent Americans,” overlooking the hundreds from 90 other countries who also died that day.
For many years, Mitchell, as an operational psychologist, had provided Survival, Evasion, Resistance, and Escape (SERE) training to prepare US service men and women to survive the stress, shock, and torture they might suffer if they were held as hostages or POWs, by recreating the harrowing conditions they could expect if captured. For example, in the SERE program, the US military, under carefully controlled circumstances, subjects American personnel to various methods of torture, including waterboarding, borrowed from the playbook of our enemies in previous wars.
In April 2002, the CIA asked Mitchell to deploy to the secret location where Abu Zubaydeh, a suspected al-Qaeda operative, was being held to help interrogators overcome Zubaydeh’s resistance. Mitchell says he was told to “think outside the box.” Apparently, the “box” was the US Army Field Manual, which up to that point specified the authorized techniques to question detainees in US custody and prohibited all forms of torture. The CIA was frustrated that its hands were tied by these annoying restrictions.
In Mitchell, the CIA found a willing partner. He told them about this readymade set of interrogation techniques in the SERE program which could now be used to extract information from the detainees. His meetings with the CIA sound more like a high-tech entrepreneur pitching new software to a potential customer. Mitchell seems totally oblivious to the fact that he’s proposing that the CIA use various forms of torture on prisoners in US custody, which the United States had previously condemned as violations of international law.
The CIA signed a deal with a company owned by Mitchell and his partner Dr. John Bruce Jessen, which was eventually paid a whopping $81 million. Mitchell goes to great pains to try to debunk the “myth” that he and Jessen “made $81 million running the program.” They had expenses and salaries (including their own hourly fees, which he does not disclose) and in the end the “percentage of profit I earned from the contract was in the small digits.” Mitchell doesn’t do the math for us, but at three percent or four percent, his profit was anywhere between $2.4 and $3.2 million.
The CIA loved Mitchell’s idea of reverse engineering the SERE program and eventually approved 10 Enhanced Interrogation Techniques (EITs). One cannot appreciate the depths of the CIA’s and Mitchell’s depravity without pausing to examine each of these barbaric techniques — which he calls “temporary discomfort” — as Mitchell himself describes them:
Attention grasp. Grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogater. [Mitchell specifies no limitation on frequency or duration.]
Walling. The detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash. [Mitchell specifies no limitation on frequency or duration.]
Facial hold. The interrogator places an open palm on either side of the detainee’s face with the interrogator’s fingertips kept well way from the detainee’s eyes. [Mitchell specifies no limitation on frequency or duration].
Facial or insult slap. The interrogator’s fingers are slightly spread apart, and his hand makes contact with the area between the tip of the detainee’s chin and the bottom of the corresponding earlobe. [Mitchell specifies no limitation on frequency or duration.]
Cramped confinement. The detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours, and in the larger space it lasts for up to eighteen hours. [Mitchell specifies no limitation on frequency.]
Insects. Harmless insects can be placed in the confinement box with the detainee.
Stress positions. The detainee sits on the floor with his legs extended straight out in front of him and with his arms raised above his head, or kneels on the floor while leaning back at a 45-degree angle. [Mitchell specifies no limitation on frequency or duration.]
Wall standing: The detainee may stand about four to five feet from a wall with his feet spread approximately to shoulder width. His arms are stretched out in front of him, and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet. [Mitchell specifies no limitation on frequency or duration.]
Sleep deprivation. Not to exceed eleven days at a time.
Waterboard. The detainee is bound to a bench with his feet elevated above his head. The detainee’s head is immobilized, and an interrogator places a cloth over the detainee’s moth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for twenty to forty seconds, and the technique produces the sensation of drowning and suffocation. [Mitchell specifies no limitation on frequency.]
Most readers will pause at this point in Mitchell’s book to digest the full impact of what they have just read: the United States government deliberately considered, documented, and approved a program of subjecting human beings, held in their custody, to these 10 abominable “techniques,” and an individual like Mitchell willingly carried them out and now publishes his deeds in a book. The banality of evil does not begin to describe it. One’s mind races from the detailed records of Nazi atrocities to the annals of Tomas de Torquemada, who ordered waterboarding (then called the “water cure”) during the Spanish Inquisition in the 15th century.
Mitchell presents a matter-of-fact account of his interrogation of Abu Zubaydeh, which any decent person would find shocking, but which Mitchell recounts with great pride and satisfaction. Early on, Zubaydeh had been subjected to sleep deprivation, nudity, loud noise, and “dietary manipulation.” Mitchell then takes over, joined by his previously mentioned partner Jessen, a CIA operational psychologist, who worked with Mitchell in the SERE program. He titles this chapter “Getting Rough” and recounts his interrogation as if he were the hero in a John le Carré spy novel:
I signaled the guards, and they brought in a large wooden black box. It was about as big as a wooden crate one would need to ship a full-sized American refrigerator, only taller. It was big enough for him to stand in, but if you were claustrophobic, you would not want to be placed in it. […] “This is your new home.” I motioned, and the guards placed him inside. […] He was left in the box overnight.
Early the next morning, the guards opened the box, shackled Abu Zubaydeh, hooded him, took him out, and placed him against the newly built walling wall. Bruce put the rolled-up towel we used as a safety collar around his neck and pulled him forward into an attention grasp. He then bounced Abu Zubaydah’s shoulders off the walling wall maybe three or four times. Each time it made a big boom.
Dissatisfied with Abu Zubaydeh’s answers to their questions, Mitchell and Jessen later moved on to waterboarding their victim.
Bruce poured the water out of a one-liter plastic bottle, and I controlled the duration of the pours by standing at the top by Abu Zubaydeh’s head, raising and lowering a black cloth to cover his face. When I lowered the cloth, Bruce was to pour. I would watch the guard count out the seconds. When I raised the cloth, Bruce was to stop immediately. The legal guidance said we could pour water for twenty to forty seconds, allow the person to breathe unimpeded for three or four breaths, and then lower the cloth and pour water for another twenty to forty seconds, and so on, for twenty minutes. That would have been one waterboarding session with multiple applications or pours of water.
Mitchell takes great umbrage that he and Jessen have been accused by the Senate Select Committee on Intelligence and others of waterboarding Abu Zubaydeh 83 times. He calls that “nonsense.” Why? Not because he denies waterboarding Abu Zubaydeh. He’s proud of that. But because the Senate and others consider each “pour” — each time Bruce tipped the bottle and poured water down the victim’s mouth and nose — as an act of waterboarding. Mitchell whines that only each of the five times Abu Zubaydeh was strapped into the gurney should be counted as an act of waterboarding, despite the average of 16 pours administered each time. That’s like a slaveholder claiming he only whipped his slave once each time he inflicted 40 lashes.
Mitchell even attempts to justify his conduct by arguing that during the 95 months he worked for the CIA, he only applied EITs five percent of the time. That’s like excusing an abusive husband because he only beat his wife 18 days a year.
Mitchell also tries to discount the pain and suffering caused by waterboarding, because he, Jessen, participants in the SERE program, and two government lawyers were waterboarded in order to experience what it felt like. Of course, this was nothing like the conditions in which Mitchell waterboarded detainees in secret black hole prisons. All of the incidents Mitchell sites to sanitize waterboarding were conducted under controlled circumstances, in a friendly environment, where the process could be called off at any time. Nonetheless, after being waterboarded apparently once, a government lawyer admitted: “It was terrifying. I felt like I was going to drown.”
But Mitchell’s ultimate defense is that he was only following the orders of his CIA superiors based on the infamous “Torture Memos” issued by the Bush Justice Department Office of Legal Counsel written by Jay Bybee and John Yoo. Mitchell says he knew everything he had done was “deemed” legal by the Department of Justice. These memos have since been discredited and several were withdrawn by the Bush administration itself. The deeper problem is that the government cannot whitewash its own use of torture by having compliant government lawyers write memos purporting to transform illegal activity into legal activity with the stroke of a pen.
In essence, the Torture Memos say:
The CIA has informed us that none of the Enhanced Interrogation Techniques, including waterboarding, inflict actual pain or physical harm, therefore the Office of Legal Counsel concludes that the EITs, including waterboarding, inflict no actual pain or physical harm, and therefore are legal.
This would be like the Mafia getting their trusted consigliere to write memos concluding their activities are legal. Or, closer to home, Nixon’s lawyers writing memos concluding that the Watergate cover-ups were legal. The Bush administration, including its lawyers, were part of a conspiracy to violate US and international law prohibiting torture and cruel, inhuman, and degrading treatment. The illegal conduct of one co-conspirator such as Mitchell is not rendered legal by the memos written by fellow co-conspirators such as Bybee or Yoo.
The Torture Memos justifying EITs, including waterboarding, due to the needs of national security to respond to the 9/11 terrorist attacks were invalid from the moment they were written. The Convention against Torture, ratified by the United States in 1994, expressly provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Mitchell might still be held accountable. In October 2015, torture survivors Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, as well as a representative of the estate of Gul Rahman — who froze to death in a CIA black site in Afghanistan — sued Mitchell and Jessen in federal court in the state of Washington, where the defendants currently reside. The plaintiffs are represented by the ACLU. The lawsuit alleges that Mitchell and Jessen “designed, developed, and implemented” the torture program, in which the plaintiffs were subjected to brutal torture, causing severe and lasting emotional distress and physical consequences.
Unlike other lawsuits against the CIA, which have been dismissed, this one is set for trial on June 26, after US District Judge Justin Quackenbush last January denied a motion to dismiss filed on behalf of Mitchell and Jessen. The court ruled that the defendants, as independent contractors, were not protected under the Military Commissions Act, which prohibits legal actions by detainees against the United States and its agents.
In February, the lawsuit gained added prominence when lawyers for Mitchell and Jessen sought a court order to depose Gina Haspel, recently appointed Deputy CIA Director by President Donald Trump. Haspel ran the CIA black site prison where Mitchell and Jessen tortured Zubaydeh.
While Mitchell has so far escaped criminal prosecution, in the upcoming civil trial the full extent of his brutal conduct may finally be publicly exposed. His book should be Exhibit A.
Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.