Congressional testimony this week showed that private CIA contractors were a driving force behind harsh interrogations. Although there are lawsuits against military contractors involved in detainee abuse, there has been far less legal action against contractors who worked for the CIA.
American Civil Liberties Union attorney Ben Wisner believes this is largely because of the secrecy that has surrounded the CIA's interrogation and detention program.
"There simply have not been a lot of lawsuits related to the CIA's torture program against either the CIA or its contractors, because courts have almost universally been shutting these lawsuits down on the basis of overbroad secrecy claims made by the CIA," says Wisner.
President Obama and Attorney General Eric Holder have said CIA agents who followed the Justice Department's legal advice won't be prosecuted criminally, but they have said nothing about contractors.
Criminal or civil lawsuits against CIA contractors would present their own unique legal challenges.
In 2006, Congress passed a bill called the Military Commissions Act that includes a provision immunizing contractors from lawsuits. Some lawyers believe that provision is unconstitutional, but no court has weighed in on the law.
The Justice Department memos defining torture are silent about contractors. At a congressional hearing Wednesday, subcommittee Chairman Sheldon Whitehouse (D-RI) asked Georgetown Law professor David Luban about the omission.
"I don't recall any specific mention of private contractors" in the memos, said Luban.
"I don't recall it either," replied Whitehouse, "and it would seem that might raise legal issues. It's interesting that would be a fact in the lengthy opinions that never appears to have surfaced."
When Leon Panetta took charge of the CIA a few months ago, he banned contractors from interrogating detainees. Director of National Intelligence Dennis Blair talked about the decision at a roundtable with reporters.
"It seems to me that those who do these sorts of interrogations of the most important detainees should be government employees," said Blair. "They shouldn't be contractors; they should be highly trained — very supervised."
The full significance of the decision to bar contractors from CIA interrogations was not immediately clear. Then on Wednesday, a former FBI interrogator testified that CIA contractors were the people on the ground who pushed hardest for abusive interrogations in 2002.
Former interrogator Ali Soufan helped question Abu Zubaydah — the first high-value detainee in American custody.
"The interrogation team was a combination between FBI and CIA, and all of us had the same opinion that contradicted with the contractor," said Soufan. "The contractors had to keep requesting authorization to use harsher and harsher methods."
Soufan's written testimony said contractors used nudity, sleep deprivation, loud noise and temperature manipulation against Zubaydah, even before the Justice Department provided legal permission in writing.
Soufan said the contractors did not have any experience in interrogations. They reportedly came from a school where the Army trained American personnel to resist torture.
Trainers from the military school created a private company called Mitchell Jessen & Associates. No one from the company has spoken publicly in the past few years, and they could not be reached for this story.
For attorneys representing detainees, the secrecy surrounding these issues is immensely frustrating. "Everything my client says is presumptively top secret and I'm prevented from revealing it," says Brent Mickum, the attorney for Abu Zubaydah. Mickum is not allowed to discuss whether contractors interrogated Zubaydah, which techniques they used, or anything else Mickum has learned from conversations with his client. That makes bringing a lawsuit against contractors extremely difficult.
"The issue of oversight is the principal concern," says Richard Friedman, president of the National Strategy Forum and an expert on contractors in wartime. "When we get to oversight, who are the overseers and what criteria do the overseers adhere to?" Those are questions that remain unanswered.
Attorney Susan Burke has a long-running lawsuit against military contractors who abused detainees in Iraq. "These are publicly traded corporations, they're reporting a profit to Wall Street, and a significant amount of time they're profiting from is spent in illegal conduct, in torture," says Burke. "It's appalling. And it really needs to draw much more serious consequences than it has to date."
The ACLU says to keep an eye out — as more information is declassified, attorneys expect to bring more lawsuits, including, perhaps, against CIA contractors.