Senate Report Tests U.S. State-Secrets Defense

The Senate’s report on CIA interrogation practices is poised to become a new weapon in legal proceedings for former and current detainees, both in the United States and foreign courts.

Lawyers expect to seize on the details revealed in the 500-page executive summary made public Tuesday to reignite old lawsuits in the United States, file new ones in Europe and fight military commissions in Guantanamo Bay.

By disclosing the details, the report invites a challenge to the U.S. state secrets doctrine that has made it so hard for lawyers to bring cases on behalf of torture victims. The United States government has used that doctrine to claim litigation could harm national security. U.S. courts have agreed with the government argument.

“I think the government will be hard pressed to say this information is a secret when we all have access to a 500-page document that details a good portion of what some of these men experienced,” said Andrea Prasow, deputy Washington director at Human Rights Watch.

The release of the report is far from a guarantee that U.S. courts will change their stance, but Prasow’s comment is a measure of the optimism among lawyers for the detainees who are expected to refile their cases in U.S. courts.

Take the case of Abou Elkassim Britel, one of five detainees who accused Jeppesen Dataplan, a U.S. company, of playing an integral role in their forced abduction, detention and torture. He could refile on the basis of the Senate report.

The case was thrown out in 2010 after the U.S. government moved to dismiss plaintiffs’ complaint under the state secrets doctrine. The U.S. Court of Appeals for the 9th Circuit narrowly decided to dismiss the case and the U.S. Supreme Court declined to hear the appeal in 2011.

The details in the report could also become a worry for foreign governments in countries where torture took place. Lawsuits there target countries that aided the CIA’s extraordinary rendition program.

Alka Pradhan, counterterrorism counsel for Reprieve US who has worked on detainee cases, said she expects the report to create a wave of new filings from former detainees in European countries or before the European Court of Human Rights, which has already issued two decisions on challenges to the CIA’s controversial post-9/11 program.

The report names new individuals who could bring new claims, Pradhan said. It also provides further information and detail in an official account of the CIA’s program that could be used to bolster detainee claims. Countries were not named in the report but can be identified with a few minutes of legwork for those familiar with the CIA’s program, Pradhan said.

“While it’s not from the United States, it is some measure of compensation for the victim and the result of that is that it sort of dampens ties and affects foreign relations between the US and those countries,” Pradhan said. “Which is quite an important consideration and I know the State Department is concerned about it.”

Pradhan also expects a huge impact on pending prosecutions on military commissions in Guantanamo Bay because of case studies, also cited in the Senate report, about what the CIA actually thought about some so-called “high-profile” detainees like Ramzi Bin al-Shibh.

“That’s the kind of detail that I promise you is going to show up and going to be waived around by Ramzi Bin al-Shibh lawyers,” Pradhan said.