(CN) - A man who was tortured at a CIA secret prison and remains imprisoned without charge in Guantanamo Bay can't seek damages from government contractors that designed the torture program because federal courts don't have jurisdiction over the treatment of people deemed enemy combatants, a Ninth Circuit panel determined on Monday.
Zayn al-Abidin Muhammad Husayn, better known as Abu Zubaydah, was captured in Pakistan by U.S. and Pakistani intelligence agencies in 2002 under suspicion he was a leader in Osama Bin Laden's Al-Qaeda militant group and involved in the planning of the September 11, 2001 terrorist attacks in the U.S.
Zubaydah sued psychologists James Mitchell and John Jessen in federal court in the Eastern District of Washington for damages under Alien Tort Statute for the injuries he suffered during his detention and interrogations.
He said that Mitchell and Jessen tortured him and violated international law when he was subjected to a program called Survival, Evasion, Resistance, and Escape, and subsequently other interrogation techniques.
The three-judge Ninth Circuit panel agreed with a federal court that denied Zubaydah's claim and ruled that under the George W. Bush era Military Commissions Act passed by Congress, federal courts don't have jurisdiction over the detention and treatment of enemy combatants by the U.S. and its agents.
In his appeal, Zubaydah argued that the Military Commissions Act doesn't define what the term "agents" means and if Congress wanted to extend the term and immunity to contractors like the psychologists, it would have explicitly said so.
"We presume that Congress used terms consistently in the MCA, so 'agent' must mean something beyond just officers and employees of the United States," wrote U.S. Circuit Judge Anthony Johnstone, a Joe Biden appointee, writing for the panel. "Zubaydah points to nothing in the MCA's text that rebuts this presumption, so we take the term 'agent' to include contractors as well as officers and employees."
From 2002 to 2009, Mitchell and Jessen pocketed more than $80 million from their contract with the CIA and the torture techniques developed from Zubaydah's interrogations.
To the extent that Zubaydah's interrogations went beyond the scope of the CIA's agreement with Mitchell and Jessen, the psychologists were still acting on behalf of the agency and the agency essentially okayed those acts through its conduct, the judge said.
"'The CIA knew of defendants' treatment of Zubaydah, expressed concerns about it, and once intervened to stop Mitchell's interrogation. So even when the CIA did not always exert control over defendants' interrogations of Zubaydah, the allegations establish that the CIA and defendants mutually agreed that the CIA could do so." Johnstone wrote.
U.S. Circuit Judges John Owens, a Barack Obama appointee and Lawrence VanDyke, a George W. Bush appointee, joined Johnstone on the panel.
Brian Paszamant of Blank Rome LLP, Mitchell and Jessen's attorney, told Courthouse News that "Doctors Mitchell and Jessen are pleased that the Ninth Circuit affirmed the district court's decision to summarily dismiss this meritless lawsuit brought by a known enemy combatant of our country."
Attorneys for Zubaydah did not immediately provide comment.
That Zubaydah was tortured in CIA custody is not disputed. His story is among the most prominent within a study by the Senate Select Committee on Intelligence of the CIA's detention and interrogation program.
The full report, which extends over 6,000 pages, is classified but the 500-page summary released by the Senate mentions Zubaydah 1,001 times.
After his capture, Zubaydah was transferred to a secret CIA "black site" prison in Thailand where he was stripped naked and interrogated in an all-white room for up to 76 hours under the Survival, Evasion, Resistance, and Escape, or SERE, program.
After a month of interrogations with Zubaydah providing little information, Mitchell, who developed SERE, requested permission to use more aggressive torture techniques, under the euphemism "enhanced interrogation techniques," that were developed with Jessen, another contracted psychologist.
After getting the okay from the agency via the Department of Justice, Zubaydah was waterboarded 83 times, confined in a box for 266 hours over 17 days in August 2002 and subjected to a mock execution and burial. He was the first detainee of the war on terror to be tortured under the CIA's "enhanced interrogation techniques" program.
In 2007, he was designated an enemy combatant. Zubaydah was eventually sent to U.S.'s Guantanamo Bay military detention center. He remains imprisoned there today.
At Guantanamo Bay, his detainee profile pictures him wearing an eye patch - a consequence of his torture by the CIA, according to his lawyers.
The U.S., meanwhile, accuses Zubaydah not only of involvement in the training of two 9/11 hijackers but of possessing advanced knowledge of even earlier attacks: the 1998 bombings of U.S. embassies in Kenya and Tanzania and the 2000 attack on the USS Cole. Zubaydah has also been accused of helping build a mujahidin network in the early 1990s. He denies the CIA's claims.
Though the government had deemed Zubaydah a high-level al-Qaida leader at the time of his capture in 2002, details about Zubaydah's terrorist ties are shaky. Some news investigations indicted that its sources in the government later concluded that Zubaydah was not even a formal member of the group.
Representatives of Zubaydah told Guantanamo's Periodic Review Board in a 2016 hearing that he had never expected to be released "because of the reputation that has been created through the use of his name."
While no longer describing Zubaydah as "al-Qaida's chief of operations" - as President George W. Bush did in 2002 - an unclassified profile of the detainee insists that he "played a key role in al-Qaida's communications with supporters and operatives abroad and closely interacted with al-Qaida's second-in-command at the time, Abu Hafs al-Masri."
Before the CIA smuggled Zubaydah away to secret "black sites," the Palestinian had been open with his FBI captors, the Senate found. It was Zubaydah in 2002 who identified Khalid Sheik Mohammad to the FBI as the mastermind of the 9/11 attacks.
Source: Courthouse News Service
