UPDATED: Don’t Use State Secrets Privilege to Block CIA Torture Lawsuit, Groups Tell Attorney General

UPDATE:  In a move the ACLU’s Dror Ladin called “unprecedented,” the Department of Justice notified the U.S. District Court in eastern Washington state that it would allow the case to go forward so long as the federal government could employ “protective measures” to prevent disclosure of classified information.

ORIGINAL POST (Nov. 20, 2015): The Department of Justice should not seek dismissal on state secrets grounds of a lawsuit recently filed by three victims of torture identified in the publicly-released summary of the Senate Select Committee on Intelligence Study of the CIA’s Detention and Interrogation Program, according to TCP and seven organizations that work to combat torture at home and abroad.

“Now that release of the SSCI Report has demonstrated that the CIA’s torture program may be openly discussed and examined, the Justice Department should not act to bar victims of that program from seeking redress in U.S. courts,” the groups said in a letter delivered to Attorney General Loretta Lynch on November 19.

The state secrets privilege permits the government to block the release of any information in a lawsuit that, if disclosed, would cause harm to national security. Once rarely invoked, the Bush and Obama administrations have used it routinely to dismiss entire lawsuits at the onset. However, the groups note in their letter that DOJ policies require that uses of the state secrets privilege be narrowly tailored, and that the government should seek dismissal only if no other remedy would be sufficient.

“Seeking dismissal of claims that are based on information in the SSCI Report would be manifestly inappropriate under this standard, because litigation based on public information ‘would not reasonably be expected to cause significant harm to national security,’” the groups wrote.

Last month, the ACLU filed a lawsuit against James Mitchell and Bruce Jessen, psychologists contracted by the CIA to design, implement, and oversee its post-9/11 torture program, on behalf of the family of Gul Rahman, an Afghan man who died while in CIA custody; Mohamed Ahmed Ben Soud, a Libyan man who the U.S. held in Afghanistan from 2003 to 2005 before the CIA sent him to Libya; and Suleiman Abdullah Salim, a Tanzanian man who was held in U.S. custody in Afghanistan for five years. All three were identified as torture victims in the SSCI report.

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