Ninth Circuit Agrees That Former Guantanamo Detainee Lacks Grounds to Sue for Waterboarding
On June 30, 2025, the U.S. Court of Appeals for the Ninth Circuit affirmed dismissal of a complaint filed by Abu Zubaydah, 52, a falsely accused Al-Qaeda conspirator captured after the terrorist attacks on September 11, 2001, who is still being held without charges as an “enemy combatant” by the U.S. military at its naval base in Guantanamo, Cuba.
As PLN reported, Zubaydah was wrongly called Al-Qaeda’s “number three” leader when he was captured in March 2002. John Kiriakou, who led the joint CIA-FBI team that apprehended Zubaydah, later confirmed that the detainee had no part in planning the attacks that damaged the Pentagon and destroyed the World Trade Center in New York City. Yet Zubaydah was repeatedly tortured at CIA “black sites”—including waterboarding 83 times. [See: PLN, Nov. 21, 2016, online.]
Zubaydah sued a pair of CIA-contracted psychologists, James Mitchell and John Jessen, who developed the “enhanced interrogation technique” repeatedly used on him over 17 days in August 2002 at a “black site” in Thailand. The complaint accused them of torture, non-consensual medical experimentation, war crimes and arbitrary detention pursuant to the Alien Tort Statute (ATS).
Defendants moved to dismiss, arguing that federal courts lacked subject matter jurisdiction. On February 27, 2024, the U.S. District Court for the Eastern District of Washington agreed and granted the motion. It found that the Military Commissions Act (MCA), 28 U.S.C. § 2241(e)(2), barred suit against Defendants because they acted as “agents” of the U.S. The Court said that MCA’s legislative history demonstrated that the term applies to government employees and contractors alike, noting also that Defendants were under CIA supervision and control. “Absent CIA permission and supervision, Defendants had no independent authority to interrogate” Zubaydah, the district court declared.
It further found that the Political Questions Doctrine deprived it of jurisdiction. A case or controversy involves a “political question” if there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it,” as held in Nixon v. United States, 506 U.S. 224 (1993). The district court said that this doctrine applied to the CIA, which was seeking information to prevent further acts of terrorism, so Defendants were entitled to derivative sovereign immunity. It was further found that Plaintiff asserted insufficient allegations to sustain a claim under the ATS. Calling amendment futile, the district court dismissed the complaint with prejudice. See: Husayn v. Mitchell, 2024 U.S. Dist. LEXIS 33694 (E.D. Wash.). Zubaydah timely appealed.
But the Ninth Circuit affirmed the district court’s decision. “Whether Defendants tortured Zubaydah … is not at issue,” the Court observed. “The only question” was whether Congress—by enacting the MCA—”put Zubaydah’s action against Defendants beyond the jurisdiction of the district court because they acted as agents of the United States.” Since the MCA “denies federal courts jurisdiction over certain actions relating to the detention and treatment of enemy combatants by the United States and its agents,” the Court said that the question boiled down to one of agency.
In examining whether Defendants were agents of the government, the Ninth Circuit provided some enlightening history about both. Training soldiers in the military’s Survival, Evasion, Resistance, and Escape (SERE) program, Mitchell “developed and supervised a course involving mock torture in a pretend prisoner-of-war camp,” the Court recalled, while Jessen served as chief psychologist in the department overseeing SERE training programs. Using “simulated scenarios in a controlled and constructive manner,” they trained soldiers to “build resistance to the extreme … stresses of capture.” Since these “mock interrogations” also “presented serious psychological and physical risks,” there were “safeguards including strict time limits and careful psychological monitoring to prevent students from developing ‘learned helplessness,’ a state of total submission.”
Moreover, after they tortured Zubaydah for the CIA, Mitchell and Jessen continued to be contracted by the agency, collecting $80 million for work they performed between 2002 and 2009. The CIA “authorized and contracted with them to interrogate Zubaydah on its behalf.” It also could and did control “aspects of their interrogations.” And the CIA “ratified any conduct exceeding the agreed scope by accepting the benefits and having actual knowledge of their actions.” For these reasons, the Court said that they qualified as agents of the government over whom the MCA gave the Court no jurisdiction.
Before the Court, Plaintiff was represented by Spokane attorney Jeffrey K. Finer, with co-counsel from attorneys with Lewis Baach Kaufmann Middlemiss PLLC in New York City and Washington, DC. See: Husayn v. Mitchell, 2025 U.S. App. LEXIS 16036 (9th Cir.).
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Related legal case
Husayn v. Mitchell
| Year | 2025 |
|---|---|
| Cite | 2025 U.S. App. LEXIS 16036 (9th Cir.) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |