THE VIDEOGRAPHER: We are now on the record. This begins DVD No. 1 in the deposition of James Elmer Mitchell in the matter of Salim versus James Elmer Mitchell and Bruce John Bruce Jessen in the United States District Court for the Eastern District of Washington. Today is January 16th, 2017, and the time is 10:19 AM. This deposition is being taken at 130 North 18th Street, Philadelphia, Pennsylvania, at the request of Gibbons, PC. The videographer is Benjamin Neate of Magna Legal Services and the court reporter is Connie Kent of Magna Legal Services. All counsel and parties present will be noted on the stenographic record. Will the court reporter please swear in the witness.
Andrew Warden: Thank you. At the outset I'd like to say that I'm Andrew Warden from the United States Department of Justice and I represent the United States government in this case. On behalf of the United States Government, I have here with me today Joseph Sweeney, attorney for CIA Office of General Counsel, Cody Smith, an attorney for the CIA Office of General Counsel, Heather Walcott, an attorney for the CIA Office of General Counsel, Megan Beckman, paralegal with the CIA Office of General Counsel, Antoinette Shiner, Information Review Officer from the CIA. On behalf of the Department of Defense, have Richard Hatch, an attorney with the Office of General Counsel, and Thomas Ellis, a senior program analyst with the Joint Personnel Recovery Agency. The Government is not a party to this case, but we are here today to represent the interests of the United States. We understand that the questions in this deposition will cover topics related to Dr. Mitchell's career with the Department of Defense and later as a contractor with the CIA. Given the sensitive nature of the positions Dr. Mitchell held with those agencies and the information he acquired while in those positions, we are here today to protect against unauthorized disclosure of classified, protected or privileged government information. At the outset, I'd like to mark as Exhibit 1 and 2 for the record, and have them produced to the parties, the classification guidance we have given from the CIA and the DOD. (Exhibit No. 1, CIA Classification Guidance, Bates USA 22 through 24, and No. 2, Department of Defense Classification Guidance, Bates USA 2169 through 2170, were marked for identification.) I've marked as Exhibit 1 and produced to the parties the CIA guidance. It's stamped as US Bates No. 22 to 24. The production date of May 20, 2016. It provides a list of categories of information about the CIA's former detention and interrogation program that remains classified, and a list of categories of information that is now unclassified. Exhibit 2 is the Department of Defense Classification Guidance. It's marked as Bates 2169 through 2170, production date January 14, 2017. It provides a list of categories of information about DOD's survival, evasion, resistance and escape training program that remains classified and categories of information about that program that are now unclassified. The government issued would like to issue an instruction to the witness continuing throughout this deposition that in response to any question, the government instructs the witness not to answer with any of the information identified as classified in our classification guidance as Exhibit 1 and 2. We reserve our right to object any specific questions posed to Dr. Mitchell consistent with his nondisclosure agreements with the Government and instruct him not to answer more specific questions that would tend to call for disclosure of classified, protected or privileged government information.
Mr. Lustberg: Thank you.
Cody Smith: Before we just in furtherance of the housekeeping, my name is Jim Smith and I represent Dr. Mitchell at this deposition today. Mr. Warden, I want to make sure that the record is plain here, and in keeping with my prior discussions with you, we intend to do everything we in our powers our client to protect classified information, but I want to make sure that you understand that we we believe the onus is on the government to advise the witness if his answer may require him to disclose classified information and so instruct him, so that simply handing Exhibits 1 and 2 to the witness, while he's read them and he will do his best to follow them, you should be listening very carefully to these questions and you'll know, because I won't, whether or not his answer may reveal classified information, and if it does, put him on notice of that. Because as you know, I don't know what the classified information is so I'm I'm unable to assist in this regard. So again, I'm just urging you to do that. And then just as another housekeeping matter, we agreed with the counsel for the ACLU that for this deposition, and for all depositions going forward as a means to try to accelerate the process, just stating objection on the record will preserve any argument at a later date as to the basis for the objection.
Mr. Lustberg: That's correct. And you don't even have to instruct your client, "you may answer," just to save the time. If you object, unless you direct him not to answer, we'll assume he's going to go ahead and answer.
Cody Smith: Correct. Do you understand that, Dr. Mitchell? I may be objecting from time to time. Even though I object, unless I instruct you not to answer, you should answer the question.
James Elmer Mitchell: Okay.
Cody Smith: And I do think we should put pauses between when we think Counsel is finished asking the question and before you begin to answer it to give the Government time to process the scope of the question and allow the Government to take whatever position it needs to take on the record.
Mr. Lustberg: Yeah. I'll instruct I'll give you some quick instructions on that.
Cody Smith: Okay.
Mr. Lustberg: Thanks, Mr. Smith.
Cody Smith: Thank you.
Mr. Lustberg: So good morning, Dr. Mitchell. Nice to meet you. My name is Larry Lustberg and I work at a law firm called Gibbons, PC, which is headquartered in Newark, New Jersey. Along with my colleagues who are here, there's a whole list, but I won't make them all introduce themselves, we represent the plaintiffs in this case. You're represented by Counsel today, and I'm sure you've been well prepared, but I'm going to go through some very quick instructions and then Mr. Smith can clarify any that need clarification. First, there's a stenographer here as you can see, as well as a videographer. So you understand that what they're doing is recording what happens here today for potential future use at a trial, correct?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. One thing, let me just say now, I'm going to speak and I'm going to ask you questions. If you would make sure to just let me finish before you answer, and as Mr. Smith said, just pause a bit so that anybody who needs to object can, that would be better. Okay?
James Elmer Mitchell: Okay.
Mr. Lustberg: Well done. And I'll do the same. I mean, I'll let you finish your answers before I jump in with the next question. You've been sworn so that oath is just the same as if you were at trial to tell the truth. Mr. Smith will be defending you and he will, as he just said, object at times. Unless he directs you not to answer, you should answer the question. Do you understand that?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. One thing that's important at depositions have you ever been deposed before, sir?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. More than once?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. So a lot of this is stuff that I'm telling that you know already and so I apologize for that, but just to make it clear. If you don't understand a question, let me know. If you answer the question, we'll assume that you did understand it or at least had an understanding of it. Does that make sense to you?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. It's important, as you know, to verbalize your answers because even though the videographer will be able to pick up, you know, nods or shaking of the head, the court reporter can't. So if it's a yes, say yes; if it's a no, say no. And try to avoid just nodding or shaking your head, okay?
James Elmer Mitchell: Yes.
Mr. Lustberg: Are you on any drugs or medication or anything like that that would cause you to have any difficulty understanding or answering questions today?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. You should feel free to take a break for, we discussed as we were both getting coffee, for a restroom or whatever, any time you want. We we're here for the today, so take your time and take whatever breaks you need. Okay. So with that, I'll get started? Unless, Mr. Smith, do you have anything you want to add or
Cody Smith: Not at this time.
Mr. Lustberg: Okay. Thank you. So, Dr. Mitchell, what did you do to prepare for this deposition?
James Elmer Mitchell: I read through your complaint, I read through some of the documents the Government had released. Obviously I spoke with my attorneys.
Mr. Lustberg: Did you speak to anyone else?
James Elmer Mitchell: I'm not going to I did within the within the umbrella of attorney/client privilege, but I didn't otherwise.
Mr. Lustberg: Okay. So you didn't speak to anybody other than counsel other than your counsel?
James Elmer Mitchell: And obviously my codefendant because that's part of the process.
Mr. Lustberg: Okay. So you spoke to your codefendant as well? Okay.
James Elmer Mitchell: You're talking about specifically in preparation for this?
Mr. Lustberg: Yes.
James Elmer Mitchell: Yeah.
Mr. Lustberg: When did you have a meeting with your with your codefendant?
James Elmer Mitchell: I'm not going to go into anything that we discussed with with our attorney.
Mr. Lustberg: So there were no meetings at which your attorney was not present; is that right?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. Let's let's just start then with your background.
James Elmer Mitchell: Okay.
Mr. Lustberg: If you could, just quickly summarize what your educational background is first.
James Elmer Mitchell: I want to be sure I understand the question.
Mr. Lustberg: Okay.
James Elmer Mitchell: Do you mean just with respect to college?
Mr. Lustberg: Yeah, well, that's a good question. Let's just start with your you can start with college education and post-college education, you know, that kind of schooling education as opposed to training, other trainings you may have had.
James Elmer Mitchell: Okay. I have a just a two-year liberal arts degree from a community college. I have a two-year degree in explosive technology from a community college. I have a four-year degree in psychology.
Mr. Lustberg: And what I'm sorry to interrupt. Just if you could, what schools are those?
James Elmer Mitchell: The community college?
Mr. Lustberg: You can start with the four-year degree.
James Elmer Mitchell: University of Alaska in Anchorage.
Mr. Lustberg: Uh-huh. Continue.
James Elmer Mitchell: I have a master's degree in psychology from the University of Alaska in Anchorage, and I have a Ph.D. in psychology from the University of South Florida in Tampa.
Mr. Lustberg: Okay. Focusing on your the Ph.D. first in psychology from South Florida, when did you get that?
James Elmer Mitchell: 19- well, 1985 is when I completed everything except my internship, and you know you have to spend a year in internship, so I think 1986. It's been a while.
Mr. Lustberg: Okay.
James Elmer Mitchell: But 1986.
Mr. Lustberg: Okay. And was did you have any kind of specialty or focus of your of your graduate education in psychology?
James Elmer Mitchell: The Ph.D. is in clinical psychology.
Mr. Lustberg: Okay.
James Elmer Mitchell: I have a minor in behavioral medicine.
Mr. Lustberg: Okay. And just if you would briefly describe for the record when you a degree clinical psychology, what do you learn in that kind of program?
James Elmer Mitchell: I want to be comprehensive and organized, so
Mr. Lustberg: Take your time.
James Elmer Mitchell: You learn about personality issues, you learn about issues related to clinical diagnoses. I had a forensic psychologist who was a professor at my university and I spent quite a bit of time with him learning about things like, you know, police evaluations and the use of psychological instruments for forensic examinations. You learn about psychological testing, therapy, how to ask questions, how to establish rapport, how to it was a scientist practitioner model under the APA example, so you learn both the clinical piece of the thing as well as the other skills, but you also learn, you know, things like statistics and how to educate yourself about other topics and that's just a general list of what comes to mind right now, recognizing that there would be undoubtedly other things that I'll remember.
Mr. Lustberg: Okay. You mentioned that you learned about things like police evaluations and the use of psychological instruments for forensic examinations. Could you just elaborate on each of those?
James Elmer Mitchell: Sure. One of them was the use of psychological instruments in interviewing for evaluations where you look at a person who has committed a crime and you question them about their motives and beliefs around that crime they've committed to determine whether or not they meet the McNaughton rules for admission McNaughton rules for an insanity plea basically. That's one piece of it. The other piece of it had to do with assessment and selections for police officers, you know, who were going to be hires, new hires for police officers, and the kinds of psychological characteristics that were likely to do well as a police officer and likely to do poorly as a police officer. That was more of a because I knew the guy and he needed help than part of the actual core curriculum. In fact not that you would necessarily care, but you know when you get a Ph.D., you have to take comprehensive exams at the end of the thing? The comprehensive exam from his section of the school was all related to forensic psychology, and I was the first person to pass it in seven years so I think seven, it could have been five.
Mr. Lustberg: Congratulations. So let me make sure I understand, one of the things you said was that you well, let me just back up a second. You said that the comprehensive exam had to do with forensic psychology?
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: When you say forensic psychology, what do you mean?
James Elmer Mitchell: I mean he provided you with real with sanitized, but real-life psychological test data and interview data, and they asked you for a diagnosis and opinion that you provide.
Mr. Lustberg: Okay. You mentioned that you some of the training that you received was in having in talking to people and establishing rapport. Did I get that right?
James Elmer Mitchell: Not talking to people. You know what a psychologist does. A psychologist asks questions, establishes rapport, you know, gets people to reveal things about themselves that they would rather not talk about, helps them understand the impact of that on their life and help make suggestions how about they can improve their life.
Mr. Lustberg: Okay. And is that something that you would do practices on, you know, sort of role playing or that kind of thing during the course of your education?
James Elmer Mitchell: Are you talking about when I was in college?
Mr. Lustberg: Yeah. No, well, I'm talking about for your graduate degree.
James Elmer Mitchell: I worked at a private psychiatric hospital almost the entire time I was getting because I came in with a Master's, so to receive grant funding, the school hooked me up with a private psychiatric hospital, and so I worked at that private psychiatric hospital doing some police selection stuff in addition to making various rotations in and around various wards.
Mr. Lustberg: Just back to education for just a couple more questions.
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: Did you did you do did you have any study in general about how to talk to people or ask questions to people from different cultures?
James Elmer Mitchell: I don't remember that specifically being covered.
Mr. Lustberg: Okay. Did you take courses in psychological experimentation?
James Elmer Mitchell: Well, I took courses in statistics and research, yeah.
Mr. Lustberg: Okay. Have you been have you engaged in psychological experimentation during your career?
James Elmer Mitchell: I've done research on HIV. I was one of the first people to look at the impact of AIDS on the performance of pilots. I was one of many people who did that study, but so yes.
Mr. Lustberg: Other than the study that you just mentioned on the effect of AIDS on pilots, any other psychological research that you've done?
James Elmer Mitchell: Are you talking about experimentation?
Mr. Lustberg: Experimentation, research.
James Elmer Mitchell: Well, see, experiment to me means something different
Mr. Lustberg: Okay.
James Elmer Mitchell: than it does to many people. Experiment to me has a has a group that is an experimental group and it has other groups that are control groups. When I did my dissertation, it had to be an experimental study in the sense that I'm using the term. So I looked at the effect of diet and exercise on essential hypertension primarily because that's the only way that I could get a behavioral medicine degree because you had to do it through the medical school and so you had to get a professor that was at the medical school and so I had to do some of his research.
Mr. Lustberg: You mentioned that in your mind experimentation requires having a testing group and a control group. In the absence of that, you would not there's no other type of experimentation in your mind?
James Elmer Mitchell: No. I mean, not as I understand it now. I mean, you could do single subject experiments, right, but they end up having to be their own controls.
Mr. Lustberg: So the study you did on pilots and HIV, was there a control group in that?
James Elmer Mitchell: What you did in that particular study was you you followed them over the years and you looked at the metabolites of AIDS as it occurred in their cerebrospinal fluid and you correlated the results of that with their cognitive function.
Mr. Lustberg: So that would not have been study where there was actually literally a control group the way you were describing it before, right?
James Elmer Mitchell: It would not have been, you're right about that.
Mr. Lustberg: How about ethics, did you study psychological ethics during the course of either either in your Ph.D. program, your master's program, any, like, ethics for psychologists?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. And what were the nature of those courses?
James Elmer Mitchell: I don't remember a specific course on you know, called ethics. I remember in terms of, like, personality testing, you know, the ethics of a client/patient relationship and what you could do with the testing and who you could reveal the test results to, that sort of stuff.
Mr. Lustberg: Okay. Anything else that you recall about so you're saying strike that. So you're saying that you did not take specifically recall taking a course in ethics during your Ph.D. program?
James Elmer Mitchell: Not during the Ph.D. program. I don't specifically recall, I'd have to look at my transcript. I haven't looked at that transcript since the '80s so I don't specifically recall it. It just doesn't stand out.
Mr. Lustberg: And the ethics issues that you just described had to do with the ethics of a client/patient relationship. Can you elaborate on that at all?
James Elmer Mitchell: Yeah. One of the things that you have to be sure to do is understand who the client is. You know, in some places the client is the person who comes to you, and in other cases your client is the Government or someone else, and you have to be clear, you know, who's the client and who's the patient, even if it is a patient because it might not be a patient. All right? So if you're doing a police assessment, for example, assessment and selection, the person is not a patient.
Mr. Lustberg: Right.
James Elmer Mitchell: And your client is the police department.
Mr. Lustberg: And so what are the ethical issues with regard to that?
James Elmer Mitchell: Who owns the information.
Mr. Lustberg: Okay. So for purposes of, like, a privilege and that kind of thing?
James Elmer Mitchell: Well, this debate, as you know, about what's privileged and what's not privileged. That's been going on for quite some time with psychologists. So in general most, at least the state that I was in recognized it as a privilege as long as you didn't believe that the person was going to harm himself or harm someone else, in which case you were responsible for contacting you know, alerting. You didn't necessarily have to reveal a lot of details, but you had to alert.
Mr. Lustberg: Okay. During the course of your education, and we'll come back to this again in your practice, did you study the long-term psychological impact of trauma, for example, posttraumatic stress disorder, anything along those lines?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. So what did you study about that?
James Elmer Mitchell: Well, my minor was in behavioral medicine so what I was interested in was human coping under stressful situations and the impact it has on the physiology of the body, immune responses and their psychological and mental responses.
Mr. Lustberg: And in particular with regard to coping with trauma?
James Elmer Mitchell: I don't know well, in psychology, trauma is one of those words that gets tossed around a lot, so without knowing what kind of trauma a person is talking about. I mean, some people people report being traumatized by all sorts of stuff. So if a person came in and reported they were being traumatized by something, you would do some kind of assessment to determine what the vocational personality impact of that was.
Mr. Lustberg: Okay. So let me just focus more specifically, do you remember taking courses during the course of your education with regard to the effects of trauma?
James Elmer Mitchell: I don't remember a specific course that had that as, like, a course catalog feature of it, but it was spread throughout. You know, it was a clinical program, so it was spread throughout the program.
Mr. Lustberg: Okay. So you know what PTSD or posttraumatic stress disorder is?
James Elmer Mitchell: Yes.
Mr. Lustberg: And do you agree that it's been recognized by mental health professionals for quite a long time, since at least 1980?
James Elmer Mitchell: I don't know whether it's since 1980 or not, but in my military career, I've actually done assessments of people PTSD.
Mr. Lustberg: So you recognize there is such a thing as PTSD, right?
James Elmer Mitchell: Well, I know that the Diagnostic and Statistical Manual for psychiatric disorders includes a diagnosis of PTSD, so yes.
Mr. Lustberg: And do you know how far how long it's been that PTSD has been listed in the Diagnostic and Statistical Manual, has it been throughout your entire career?
James Elmer Mitchell: I think you know, the diagnosis has changed over the years, but I think in the mid-'80s is when I first ran into that.
Mr. Lustberg: Okay. So thank you for spending a little time on your educational background. Let's talk now about your the various jobs you've had.
James Elmer Mitchell: Okay.
Mr. Lustberg: Because you mentioned you started to talk about that before. After you graduated from I think you said you graduated from South Florida, right?
James Elmer Mitchell: Right.
Mr. Lustberg: What was what was the first job that you had?
James Elmer Mitchell: Okay. So my first job was not when I graduated from South Florida.
Mr. Lustberg: No, no. I'm okay.
James Elmer Mitchell: So do you want to exclude some
Mr. Lustberg: You can go back as far as you want, but I'm interested in your career as a psychologist.
James Elmer Mitchell: Oh. Okay.
Mr. Lustberg: So what was the first job you had as a psychologist, sir?
James Elmer Mitchell: I did my internship, which the Air Force calls a residency, at Wilford Hall Medical Center and I stayed on staff there.
Mr. Lustberg: Where is that?
James Elmer Mitchell: Lackland Air Force Base in Texas, San Antonio.
Mr. Lustberg: And what was what was the nature of your work there?
James Elmer Mitchell: Well, during the internship it covered a whole spectrum of things. I mean, it covered everything from well, I tested out of the clinical piece of it because I've had so much clinical experience. I doubled up on neuropsychology. There's a there's a whole lot of focus on the particular kinds of examinations and investigations you do inside of the military. There's it's just basically the way a clinical psychologist operates inside of the military. You basically are a functioning clinical psychologist under the supervision and control of a person who is, you know, on staff and licensed.
Mr. Lustberg: And how long did that internship last?
James Elmer Mitchell: The internship was only a year.
Mr. Lustberg: Okay. And did you then did you stay at Lackland after that?
James Elmer Mitchell: I did.
Mr. Lustberg: And what position did you have after your internship?
James Elmer Mitchell: I had a variety of positions. I was, I think, the chief of outpatient adult psychology. I don't remember the titles, but I was all over the place.
Mr. Lustberg: Uh-huh.
James Elmer Mitchell: I was the acting chief of neuropsychology.
Mr. Lustberg: And so let's talk about each of those two things. I think the first thing you mentioned was the chief of adult outpatient psychology, right? What was what were your responsibilities in that position?
James Elmer Mitchell: Generally related to people who either came into the ER complaining of psychiatric emergencies or walked into the clinic in the morning. I was also the hostage negotiator for the you know, for law enforcement agency that was there.
Mr. Lustberg: Okay. Let's just put that on hold for one second. But what when I hear chief, it sounds like you had a supervisory role; is that correct?
James Elmer Mitchell: I was on staff. There were ten psychology residents and ten psychiatry residents who I helped with psychological issues around the sorts of intakes they were doing for the military.
Mr. Lustberg: Okay. And so how much of what you did was supervising and how much of what you did was actually treating patients yourself?
James Elmer Mitchell: Probably about and this is a guess, 65/35.
Cody Smith: Dr. Mitchell, guessing is not a good thing at your deposition.
James Elmer Mitchell: I don't know.
Cody Smith: You can approximate, but a guess has no evidentiary value.
James Elmer Mitchell: Oh. Well, in that case I would say approximately 65 percent of the time.
Cody Smith: Approximations are acceptable.
Mr. Lustberg: Any experimentation while you were at Wilford Hall?
James Elmer Mitchell: Where we did that study on HIV.
Mr. Lustberg: Oh, that was there?
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: Any others?
James Elmer Mitchell: I think I applied for a human subjects to do a study of the psychological effects of finding out that you're HIV positive, but we never did the actual study. But it really wasn't an experiment. And again, it was one of those things when I think of experiment, to me that's different than research. Research is where you look to see what is there, and an experiment is where you manipulate variables, which you end up when you do that sort of collective stuff that I'm talking about where you correlate things, you don't actually manipulate the variables in real-life, you do it statistically. So it's a you know, so it's a different sort of thing.
Mr. Lustberg: So you saw a distinction between experimentation on one hand and study on the other?
James Elmer Mitchell: Research study, yeah.
Mr. Lustberg: Okay. How long did you stay at Wilford Hall?
James Elmer Mitchell: Including my residency?
Mr. Lustberg: Sure.
James Elmer Mitchell: Four years.
Mr. Lustberg: And what was your next position after that?
James Elmer Mitchell: I went to the Air Force Survival School.
Mr. Lustberg: And the you refer to that as the SERE School? And just so the record is clear, SERE stands for?
James Elmer Mitchell: Survival, evasion, resistance and escape.
Mr. Lustberg: What was your what were your responsibilities at the SERE school?
James Elmer Mitchell: They were very varied. One of one of the primary things that I did was work in the resistance training laboratory. I had two primary jobs there: One was to make sure that the instructors didn't engage in what we called abusive drift, all right, and the other one was to work with the students to be sure that as many of them got through their training as possible. But I had other duties there as well. Sometimes with JPRA, I would help them when they wanted to debrief returning POWs. Sometimes I would work with their advanced training unit to help them provide advanced SERE training to groups who are at higher risk of capture than ordinary military people. Sometimes I would engage in special projects that my commander required me to do. Like, for example, I helped them they asked me to study the injury rates when they were restructuring the school after the first desert war, and so I got with JPRA, I don't know if it was called that, and contacted the other schools and asked about the individual techniques in terms of their injuries rates and what they expected. He I mean, they redeployed me to hurricane zones to do things. They I mean, they asked me to do a variety of different things. Like for example, I was there when that B52 crashed. It crashed about 100 yards from my office. We responded to the crash and did the critical incident debriefing stuff from all the families that were there. Because I responded immediately after the shooting that was there because that shooter killed a psychiatric and psychologist and a bunch of other people. And that person all of their psychiatric patients were in turmoil and we had to manage that. I'm trying to think of other stuff that I did. They loaned me out to our counterterrorist unit about three months of the year starting in 19- I want to say '93 until a position was made for me in that unit. And I'm sure that's not all of it because you know, my duties were to get familiar with the different ways that different organizations, different approaches did interrogations, you know, including foreign enemies and domestically, law enforcement types. Let's see that else we did. I did some training working with JPRA. I did another thing that wasn't training called a the B52 pilots that flew nukes, they would call it they would capture them and then they would they would actually interrogate them in a much more realistic setting than you did training, because they didn't actually train them, it was some sort of a readiness test. I think that's what it was called. I did some interrogations for the wing commander in those settings. I did, throughout my Air Force career and continued to do it at survival at the survival school, friend of the court evaluations, investigations into whether or not a person who had committed a crime who was who was attempting to withhold information, actually met the McNaughton rules or not, and in the course of doing that, I questioned rapists, kidnappers, child molesters, you know, petty thieves, people who had stolen $100,000 worth of gear, that sort of stuff. The list goes on. It's 22 years. I'm not sure that I can recall them all now.
Mr. Lustberg: Fair enough.
James Elmer Mitchell: But if you have a document you'd like me to look at, I'd be happy to look at something.
Mr. Lustberg: Sure. We'll have plenty of documents. Let me just go back to a couple of things that you said. Did you say that you did interrogations including foreign enemies?
James Elmer Mitchell: No. Did I say that?
Mr. Lustberg: I just want to make sure because it looks like you said that. I just
James Elmer Mitchell: No. I said my job was to get familiar with how foreign enemies interrogated people.
Mr. Lustberg: Okay.
James Elmer Mitchell: That's a very different thing than what you just said.
Mr. Lustberg: So you didn't actually do interrogations of
James Elmer Mitchell: Of foreign enemies, no.
Mr. Lustberg: Okay. I want to just go back to a couple other things that you said you did. One thing you talked about was, when you talked about your two primary responsibilities at the SERE school, one of them was to avoid abusive drift, and the other was to get the students, I take it, through the program; is that right?
James Elmer Mitchell: Right. Though students are not the high risk of capture war practice.
Mr. Lustberg: Right. When you say you would you would help to get them through, what do you mean by that?
James Elmer Mitchell: Sometimes people who have experienced trauma in the past, like, for example, a person who had been raped or robbed or beaten, in the course of what they would call hard rounds at the school, would re-experience some of the, you know, emotional distress, and my job was to help them get through the training so that that did not ruin their career, because for many people, in spite of the fact that it's voluntary, meaning that you can withdraw, it's a career ender, it's over, you go do something else. So the Air Force is, you know and the other organizations I worked for were highly committed to they don't want to spend $10 million on a person and then have them washout because 18 years earlier they were in some sort of a, you know, altercation where they got hurt.
Mr. Lustberg: Okay. So what would so what would you do to assist them to get through so that there wasn't that waste of resources by the Air Force?
James Elmer Mitchell: Would you like me to give you a specific example?
Mr. Lustberg: You can if that would be helpful.
James Elmer Mitchell: It might be helpful. Mostly it's social influence stuff, right? So in the one case that I'm thinking about, we had a female who, I don't remember what kind of pilot she was, but she was something, she might have been a steward on the general's airplane or she could have been a pilot, I just don't remember, and she had been raped, and when the during the hard rounds when they were yelling at her, she began to re- experience her rape and she wanted to quit, and if she quit, then her career would be over. So I met with her, I listened to her story, and then I reframed what she was experiencing for her, because as you know, strong experiences can sometimes impact how things are remembered and then how they're stored again. So in her case I said, Isn't it interesting that that SOB raped you 20 years ago, he's in jail, but he can reach into your future and take your future away from you, and which she said, I'm not going to let him do that. And then I was able to work with her because she was committed to viewing the emotional distress she was experiencing more as a crucible for getting better than an indication that she was brokem. So in a lot of cases it's a matter of taking emotions are accompanied by an urge to act, and in a lot of cases, what you have to do is figure out what that urge to act is and what they believe it means and reframe it in a way that they can act on that urge to act but it strengthens them because you sometimes can't make that go away.
Mr. Lustberg: Okay. So one of the things one of the types of, I don't know if you would call them patients, or you know, the SERE trainees.
James Elmer Mitchell: I don't think they think of them as patients.
Mr. Lustberg: Yeah. Let's call is that a SERE trainee one of the types of SERE trainee that you would assist would be people who had something in their background that made you that you were aware of that you would help them through, right? That you would become aware of?
James Elmer Mitchell: I would become aware of when they acted out.
Mr. Lustberg: Okay. How about just normal people going through the SERE program. They understood, right, that you were available in the event that you were needed, right?
James Elmer Mitchell: I don't know if going into the program, whether they knew a psychologist was there or not. I don't know. I know they knew afterwards. And if they used a safe word like flight surgeon, or whatever it was, I knew they knew that during that, but they make a point of having the medical personnel dress and act like the other folks so that I don't I don't think they're aware going in that there is a psychologist there or a PA because they use well, they didn't use PAs.
Mr. Lustberg: Okay. So your first interaction with SERE trainees would then be if there was some sort of reason for you to assist them; is that right?
James Elmer Mitchell: That would not be my first interaction with them, that would be their first interaction with me.
Mr. Lustberg: What do you mean by that?
James Elmer Mitchell: Meaning I'm there, I watch, I'm there the whole time. They can't distinguish me from another person in the group, but if they have a problem, they become aware of me.
Mr. Lustberg: Okay. You talked about abusive drift, and I've seen some other writings that you've done on that. Abusive if you could, just for the record, explain what you mean by that.
James Elmer Mitchell: Okay. In some instances what happens is that people who are who are take on the roles of interrogators in the case of the SERE program forget what it was like to be a student and they escalate the amount of coercion they use, and that happens over time, and the thing that the psychologist that's present there is supposed to do, along with the supervisors, is monitor that and intervene in real time, and to do annual assessments and to do special assessments if that person's boss or the wing commander or someone else wanted you to do that. And also to do some training with them so that they understood what the mechanisms were that would likely to impact them, and I think that was that was probably it.
Mr. Lustberg: Uh-huh.
James Elmer Mitchell: I mean, there's more, but I can't remember it offhand.
Mr. Lustberg: There's more?
James Elmer Mitchell: With respect to what you do to prevent abusive drift.
Mr. Lustberg: One thing that you also mentioned is that you would brief returning POWs.
James Elmer Mitchell: I didn't say brief.
Mr. Lustberg: Okay. What did you debrief?
James Elmer Mitchell: I said I would help JPRA debrief some returning POWs.
Mr. Lustberg: Debrief is what I meant to say. Okay. And what was that? Explain what that means?
James Elmer Mitchell: Well, the time that came to mind when you mentioned that was right after the first desert war, there was a brouhaha that occurred among the POWs and they were unhappy with each other because of some of the stuff that had occurred inside of their holding cells and they got me and Dr. Jessen and the SERE psychologist from the Tier 1 units to meet with those folks and to discuss you know, to take their story and to discuss what was going on and try to get rid of some of the tension that was among them. That sort of stuff.
Mr. Lustberg: Okay. Did you assist them to overcome the trauma that being a POW must have had?
James Elmer Mitchell: I don't know if I assisted those particular people in that particular issue. Some of them they were pretty hardy. I don't remember them expressing a lot of you know, PTSD symptoms. I don't remember that. I do I do remember that, you know, that there was a lot of emotional distress and we certainly talked about that. There was some feelings of betrayal, and we certainly talked about that. I don't remember and that would not have been something that I did anyway, so...
Mr. Lustberg: Who why is that not something that you would do you?
James Elmer Mitchell: Because I was on loan from the Air Force SERE school, like the other SERE psychologists were, to JPRA, and JPRA has its own psychological director of psychology, and if they had asked me to help with something like that I would, but if they didn't ask, I wouldn't.
Mr. Lustberg: So if there had been issues of trauma, then the JPRA psychologists would have dealt with that, is that what
James Elmer Mitchell: It really depends on the service, doesn't it? So I don't recall. I just don't recall that being an issue.
Mr. Lustberg: Just my colleagues remained me, just so that the record is clear, JPRA stands for what?
James Elmer Mitchell: Joint Personnel Recovery Agency.
Mr. Lustberg: And what is that?
James Elmer Mitchell: That's the executive agent that is tasked with making sure that the various SERE schools and the various other forms of advanced SERE training are uniform and follow the policy guidance established by the executive agency.
Mr. Lustberg: Okay. With regard to so you were at the SERE school then for how long did you do that?
James Elmer Mitchell: '89 to sometime in '96.
Mr. Lustberg: Okay. And after that?
James Elmer Mitchell: I went to a counterterrorist unit.
Mr. Lustberg: And what was that? Explain what that position was, just what your job was there?
Andrew Warden: From the Government's perspective, I would instruct the witness not to answer. You can provide a description of the counterterrorist unit.
Mr. Lustberg: Okay.
Andrew Warden: Anything beyond the job functionality is classified.
Mr. Lustberg: Okay. Fair enough. Got it. So I guess you can provide a brief discussion of what it was.
James Elmer Mitchell: I did a variety of tasks for them. The primary focus really was on things like war criminals and terrorists. I don't know how much more I can say than that. I really don't.
Cody Smith: Let me let me pipe in here, Dr. Mitchell. I don't want to do trial-and-error here. If I don't know what your answer is, but if you need to confer with the Government to find out what you're permitted to say, I think that would probably be the better way to handle a situation like this.
Mr. Lustberg: I have no objection to that.
Cody Smith: Okay. So why don't we go off the record. We'll give you the opportunity to confer with the appropriate governmental government official over there and then we'll go back on the record and you can continue with answer. All right?
James Elmer Mitchell: Okay.
Mr. Lustberg: Thank you.
THE VIDEOGRAPHER: The time is 11:10 PM. We are now off the video record. (Recess.) The time is 11:20 AM. We are now back on the video record.
Mr. Lustberg: How do you want to handle that, Jim?
Cody Smith: Well, we are in the process of getting a resume copied and if you have it
Mr. Lustberg: Yeah.
Cody Smith: The Government has allowed the witness to amplify a little bit more in response to the question. So let's mark it and
Mr. Lustberg: Okay. So let's mark this, as how about JEM-1?
Cody Smith: 3.
Mr. Lustberg: We're up to 3.
Cody Smith: Well, we already marked 1 and 2.
Mr. Lustberg: Okay. 3. Fine.
James Elmer Mitchell: Thank you, sir. (Exhibit No. 3, Resume of James E. Mitchell, Ph.D., was marked for identification.)
Mr. Lustberg: Dr. Mitchell, let me know when you've had a chance to look at that.
James Elmer Mitchell: I'm just trying to sort out where it came from.
Mr. Lustberg: Yup.
James Elmer Mitchell: Okay.
Mr. Lustberg: Okay. The specific job experience that we were talking about was, if you look at the second page of Exhibit 3.
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: It was it looks like the period 1996 to 2001?
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: It says 24th Special Tactics Squadron, USAF, Pope Air Force Base, North Carolina. Do you see that?
James Elmer Mitchell: I do.
Mr. Lustberg: And it lists there a number of job responsibilities or functions that you performed.
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: Is that right?
James Elmer Mitchell: These are the these are the ones that were unclassified that I could put on here because, as you know when it comes to classification, there's a need-to-know issue, so there are things that I did for them that went beyond what's here.
Mr. Lustberg: Okay. So if we could, though, let's just if you could just talk about the ones that are here.
James Elmer Mitchell: Okay.
Mr. Lustberg: And we understand that this is an incomplete list of your functions because of what's classified so we all understand that.
James Elmer Mitchell: Okay.
Mr. Lustberg: And appreciate that. So let me just ask a couple of questions about these specific areas, and we'll try to stay within them so as not to go into any classified information. One of the things it talks about is performed critical incident debriefings.
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: Do you see that?
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: What does that mean?
James Elmer Mitchell: There's two things that come to mind when we're discussing that.
Mr. Lustberg: Thank you.
James Elmer Mitchell: The first thing is when there was a people died, I would meet with the team leaders and the team and the other people who were responsible to help them to help them walk through the issue you know, do a critical incident timeline, walk through the issue, figure out what each person had done at each section, how it impacted the other people, what the beliefs and expectations were about what they were supposed to do, and then try to defuse, as you might imagine in one of those units, the kind of high-spirited guys that you're dealing, and gals in some cases, that you're dealing with, any kind of conflicts that are around, who's blaming who for what happened when people died. Also there were other incidents where something had happened and they felt like it was necessary to have someone, again, do some sort of a timeline of what had occurred and you know, I took a course in aircraft accident investigation, so it's almost the same sort of procedural template where you try to set up a timeline of what occurred, who was doing what and what they were thinking and what they were doing and try to work out the details so the teams can function smoothly.
Mr. Lustberg: And was any of that work did any of that work have to do with dealing with posttraumatic stress that people might be experiencing as a result of those events, either deaths or accidents or whatever?
James Elmer Mitchell: Yes. Go ahead.
Mr. Lustberg: No, no. Sorry.
James Elmer Mitchell: I'm done.
Mr. Lustberg: And so would you provide psychological counseling as a psychologist to people who were experiencing posttraumatic stress under those circumstances?
James Elmer Mitchell: Sometimes. It depended on the classification of the problem and the incident around it. So if it was a highly classified setting when it occurred and the person needed to talk about the setting, I might do it. If it was an incident like our guys were shot up in Mogadishu, I would probably refer that out to the hospital.
Mr. Lustberg: And when you would refer it out to the hospital, would you do it with your recommendation as to a diagnosis of PTSD, or would you be referring it if you could just answer that?
James Elmer Mitchell: You'd refer it for an evaluation, you'd say, you know, rule out PTSD.
Mr. Lustberg: Okay. And do you recall actually doing that in some circumstances?
James Elmer Mitchell: I recall back when I was at Wilford Hall, I recall treating people for PTSD who were in Desert 1. I don't know if you're familiar with that.
Mr. Lustberg: Pardon me?
James Elmer Mitchell: Desert 1? That's when they tried to rescue the hostages
Mr. Lustberg: Right.
James Elmer Mitchell: that the Iranians had and they were all those mishaps on those planes. I worked with some of the flight engineers off the C130s that had burned up, and I did, you know, PTSD counseling with those folks.
Mr. Lustberg: And I guess just one just one definitional thing. I was looking at this resume. It says, chief psychological applications.
James Elmer Mitchell: Right.
Mr. Lustberg: What what does that mean, psychological applications?
James Elmer Mitchell: That means anything your boss tells you to do that at all brushes up against psychology.
Mr. Lustberg: That's what I thought it might mean. Okay.
James Elmer Mitchell: It means it doesn't mean it's not a clinical position, it's a special operations position.
Mr. Lustberg: Uh-huh.
James Elmer Mitchell: I was a clinical psychologist with a background in special duty that was assigned to this unit.
Mr. Lustberg: Uh-huh. But you were not a clinical psychologist in this position?
James Elmer Mitchell: I was a clinical psychologist in that position, but it wasn't like a psychology clinic position is what I'm saying. It's not the same thing.
Mr. Lustberg: I understand. Okay. So let's move from that, and the next and this will help us go through this. The next position that's listed here, it says in 2001 to present, Knowledge Works, LLC. Before I ask you about Knowledge Works, do you know, looking at this resume, what "to present" means? In other words, any idea when this resume was written?
James Elmer Mitchell: Well, it probably was written for the Government so I don't recall specifically when it was written, you know. I don't recall specifically when it was written.
Mr. Lustberg: Okay. What did Knowledge Works do?
James Elmer Mitchell: Knowledge Works was an LLC that did that did these sorts of things, provided that provided psychologists who would help with these things that you see listed.
Mr. Lustberg: Uh-huh. Who were you the owner of Knowledge Works?
James Elmer Mitchell: Yes.
Mr. Lustberg: Were there any other owners of Knowledge Works?
James Elmer Mitchell: No.
Mr. Lustberg: And
James Elmer Mitchell: Yeah, this is just my functioning LLC.
Mr. Lustberg: Uh-huh. And so leaving aside these general descriptions, who were your clients at Knowledge Works?
James Elmer Mitchell: It would have been the Government.
Mr. Lustberg: Any other any private enterprise?
James Elmer Mitchell: If it was a private enterprise, it would have been somebody with a classified contract for the Government.
Mr. Lustberg: Okay. How many people worked at Knowledge Works?
James Elmer Mitchell: Me.
Mr. Lustberg: One? Any so did you have any other was that a full-time position? Let me ask it that way.
James Elmer Mitchell: It was my personal LLC.
Mr. Lustberg: Right. Did you have other did you have other working for any other corporate entities at that time? Let's start there.
James Elmer Mitchell: I think I did do some I don't know the date on this. So 2001? I probably did do some work for some corporations there who probably.
Mr. Lustberg: I want to try to fill out your job history quickly. Beyond Knowledge Works. This says 2001 to present, and as you pointed out, you don't know exactly when that was, but obviously we know that there was Mitchell Jessen and Associates, and I just want to make sure we have all of the other corporate entities that you may have been involved with since this time. Were there others, first of all?
James Elmer Mitchell: You mean my personal ones?
Mr. Lustberg: Yes.
James Elmer Mitchell: Yes. And I'm trying to remember what they were called. I think one of them was yes.
Mr. Lustberg: Do you remember the names of any of them?
James Elmer Mitchell: I do.
Mr. Lustberg: What were they?
James Elmer Mitchell: What If and Mind Science.
Mr. Lustberg: And, Dr. Mitchell, when did those exist?
James Elmer Mitchell: They're Florida corporations, so it would have been after I moved from Sanford, North Carolina.
Mr. Lustberg: Could you give me a year, approximately?
James Elmer Mitchell: 2004? It's an approximation. Circa 2004. If you've got something that could refresh my memory I would welcome it, because I don't recall when I moved from
Mr. Lustberg: Yeah. I would if I had something, I would show it to you. When did Mitchell Jessen and Associates form?
James Elmer Mitchell: I think that I think the original company formed sometime in 2005, maybe late 2004. I don't recall exactly, but to the best of my recollection, it was sometime in 2005.
Mr. Lustberg: And What If and Mind Science, those two entities that you mentioned before, did he they predated Mitchell Jessen and Associates?
James Elmer Mitchell: No, what if became Mind Science.
Mr. Lustberg: Okay.
James Elmer Mitchell: I just changed the name.
Mr. Lustberg: Okay.
James Elmer Mitchell: And Mind Science was the was my personal LLC that I billed Mitchell Jessen and Associates.
Mr. Lustberg: That you billed? What I'm sorry, does that mean?
James Elmer Mitchell: That means that we subcontracted with my LLC.
Mr. Lustberg: I see. So so Mitchell Jessen and Associates subcontracted with Mind Science?
James Elmer Mitchell: Mind Science sub- was a subcontractor of Mitchell Jessen and Associates.
Mr. Lustberg: Got it. And
James Elmer Mitchell: At least that's my recollection.
Mr. Lustberg: And what kind of work did Mind Science and What If before it do?
James Elmer Mitchell: It did the work for the CIA.
Mr. Lustberg: So was there any distinction between the work that it did and the work that Mitchell Jessen and Associates did?
James Elmer Mitchell: Yes, because if I had some downtime, which wasn't a lot, I did some stuff for the Department of Defense. And so I would have used Mind Science to bill the company that I did some subcontracting for the Department of Defense with as well, where you know.
Mr. Lustberg: I'm sorry, just finish your sentence.
James Elmer Mitchell: I did.
Mr. Lustberg: Okay. And was there strike that. We'll move on. Let's just since we're on this resume, I just want to ask you about a couple of presentations. There's several pages here of presentations and publications.
James Elmer Mitchell: I wish I would have seen this earlier, I think I could have saved you some time.
Mr. Lustberg: Unfortunately it's just the way we do it. I'm not going to ask about all of them, I promise. You did a lot of presentations. But I want to ask about a couple of them. Just so directing your attention to the, one, two, three, four to the fourth page, there's I want to ask you, at the bottom of the fourth page, there's a presentation that says, Mitchell James E., that's you, "Captivity Familiarization and Learned Helplessness." Do you remember what that was about?
James Elmer Mitchell: Yeah, that I do remember what that was about.
Mr. Lustberg: Great. What was it?
James Elmer Mitchell: Essentially when you when you use the word helplessness, it gets used by psychologists in at least two different ways: One way is the outcome of the experimental group in Martin Seligman's learned helplessness research, right? That's not how I'm referring to it here. What I'm referring to is that sometimes when people get in situations where they can't they feel like they don't have a way out of it, they begin to experience a sense of that they can no longer organize and execute the courses of action necessary to, you know, get out of the thing. And the kind of acquired helplessness, because learns means acquired, that I'm talking about, exists on a continuum from just being able to perceive it all the way to the debilitating end of this thing. And what this focused on was the two things, as I recall, it was the actually, I don't know if it was two things. If you have the paper, I'd be happy to answer any questions you have about it.
Mr. Lustberg: I don't.
James Elmer Mitchell: But my belief right now, without having the paper to look at to refresh my memory, is that the focus really was on two things: Was to ensure that the training didn't produce the catastrophic kind of learned helplessness over here, because for the training to be effective, you have to get a little bit of helplessness going because what happens then is the person begins to search for a way out of it, and you want that search for a way out of it piece of it, but you don't want the profound helplessness that leads to depression, passivity and withdrawal and an inability to sort of seek a solution, right?
Mr. Lustberg: The Seligman type?
James Elmer Mitchell: Yeah, the Seligman outcome of the experimental thing.
Mr. Lustberg: Right.
James Elmer Mitchell: It's more consistent with the control group, the escape group in Seligman's research where what happens is you have the exact same initial paradigm, but when the person begins to experience helplessness, one group is allowed to escape and the other group isn't. What happens in the escape group is that they become much more likely to use the same strategies to escape the next time. And so in order for training to be realistic, the person really has to experience disappointment in their performance. They really do have to experience some of the difficult emotions so that they could learn to bounce back and return with honor. And they have to experience those real emotions in that setting so that they can learn to use the tools that they're being taught in the presence of those emotions rather than being overwhelmed by them. And so what you have to do is kind of carefully monitor where on that continuum between just being able to perceive it and being overwhelmed by it. And I think that's what that paper was about.
Mr. Lustberg: Okay. So the phrase "captivity familiarization," what does that mean?
James Elmer Mitchell: My to the best of my recollection, there was SERE training used to be conducted this way: You would be a pilot, I would bring you you'd be a fighter pilot. You would come to the Air Force Survival School, we would give you all the classes in resisting interrogation and then we would put you in the interrogation lab and we would see how you did.
Mr. Lustberg: Uh-huh.
James Elmer Mitchell: The problem that they ran into was that fighter pilots are little bit cocky and they just don't think the rules apply to them. And so what captivity familiarization refers to is the first thing you do is capture them with no training I don't know if they did this or not, but they did this after the revision while I was there. You capture them with no training, show them what they're up against, and then they're leaning forward in the seat when you're teaching them how to beat these guys, right? Beat them in the sense of employ the resistance strategies, and so that's what captivity familiarization is. It's the first step in the overall teaching of people to protect secrets.
Mr. Lustberg: Uh-huh. So when it says, captivity familiarization and learned helplessness, what you're well, so how do those two concepts go together? Because this one lecture I mean, this one presentation says captivity familiarization and learned helplessness, and then there's also a paper called from 1995, and you see in publications it's actually unpublished. There's an unpublished manuscript at the bottom of the second to the last page that says: "Background paper on captivity familiarization and learned helplessness," which we also don't have or I'd be happy to show it to you. So that's why I'm asking it. How do those two concepts go together?
James Elmer Mitchell: There was some resistance in this school to capture pilots before you did the training and expose them to what captivity was really going to be like because the belief was, amongst some, as I recall, Why are we wasting the money, you know, why don't we train them and put them in. Well, the problem with that was that our experience after Desert Storm was that they were not as confident in their ability to resist. So the point of captivity familiarization was to show them what they were up against and then give them the tools to deal with it, and then put them back into a laboratory where they could have a more successful experience. So that's how they relate.
Mr. Lustberg: So the idea was to teach them not to lapse all the way into the Seligman type of learned helplessness that
James Elmer Mitchell: Yeah. Well, the profound piece of it, yeah.
Mr. Lustberg: Right.
James Elmer Mitchell: And also to caution people not to, you know, go too far.
Mr. Lustberg: At the time that you were making these making this presentation, writing this paper, did you focus at all or discuss with anyone the idea of inducing a state of learned helplessness as an interrogation technique?
James Elmer Mitchell: No.
Mr. Lustberg: And is there any relationship in your view between learned helplessness and posttraumatic stress disorder?
James Elmer Mitchell: Yes.
Mr. Lustberg: What is that relationship?
James Elmer Mitchell: Again, you have to imagine this continuum. On this end of it, successfully dealing with acquired helplessness, not Seligman's outcome, right, but acquired helplessness would help alleviate posttraumatic stress disorder in my opinion. On that end of it, it could actually induce it so....
Mr. Lustberg: Did you study that at all?
James Elmer Mitchell: In what way?
Mr. Lustberg: Did you study the relationship between posttraumatic stress disorder and learned helplessness?
James Elmer Mitchell: I reviewed them. I don't recall.
Mr. Lustberg: So what you just told what you just us told, which is that along the spectrum there may be varying degrees of and correct me I don't mean to mischaracterize it, correct me if I do, that as you reach the far extremes of learned helplessness, that would correlate, in your view, with posttraumatic stress disorder. Did I get that right?
James Elmer Mitchell: It would likely correlate, right? If by that you meant some people would develop it and some people wouldn't.
Mr. Lustberg: More people would develop it at the extreme than for the people who experienced less learned helplessness, right?
James Elmer Mitchell: I would think that was true.
Mr. Lustberg: Okay. Well, when you say you would think that's true, I think that's what you testified and I'm just wondering what the scientific basis of that was.
James Elmer Mitchell: I believe, and again I don't have it I mean, this is you're talking about 1995.
Mr. Lustberg: Yes.
James Elmer Mitchell: So I believe one of the theories of PTSD was learned helplessness, and I believe that I reviewed the writings on that. That's what I believe but...
Mr. Lustberg: We'll come back a little bit to learned helplessness later, but one what relationship is there, in your view, between torture and learned helplessness?
James Elmer Mitchell: I would guess it would depend on the frequency, intensity, duration and ambiguity of the course of pressure that was used and the psychological resilience of the person.
Mr. Lustberg: And would your answer be the same if I asked you what the relationship is between torture and posttraumatic stress disorder?
James Elmer Mitchell: It would be the same.
Mr. Lustberg: Let me ask you about another another paper. This one is published, although I don't have it here. This is on the second to the last page of that resume. And it's a 1995 paper that says written by you and by Dr. Jessen called, "The Circle Concept, Its Use in Resistance Training." Do you see that one? It's the second to the last page, it's the third document down under Publications.
James Elmer Mitchell: I see it. I'm going to need to talk to the lawyers. Well, maybe not. Go ahead and ask your question.
Mr. Lustberg: I just well, why don't I ask it in a very general way
James Elmer Mitchell: Okay.
Mr. Lustberg: and see if you can answer it in a way that would be appropriate.
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: What was the paper about? It's a published document.
James Elmer Mitchell: It's a published in a classified journal.
Mr. Lustberg: Oh, that's a classified journal. The SERE Instructor Bulletin is classified?
James Elmer Mitchell: The paper is about what the title says.
Mr. Lustberg: I don't know what the Circle Concept means, so that's why I
Andrew Warden: I think at this point, we'd ask the witness not to answer the questions about the Circle Concept.
James Elmer Mitchell: Given that you've retracted all of it from that paper where we discussed it, the CIA redacted the paper where we used this metaphor, and you guys redacted all of it.
Mr. Lustberg: I'm going to read you a quotation from a book. The book, so you know, is The Dark Side by Jane Mayer. Are you familiar with that book?
James Elmer Mitchell: I know she wrote the book, I don't I didn't pay much attention to it.
Mr. Lustberg: Okay. So I'm going to read you a quote and ask you your reaction to it. The quote is: "According to Steve Kleinman, a Reserve Air Force colonel and experienced interrogator who's known Mitchell personally for years, learned helplessness was his whole paradigm. Mitchell, he said, draws a diagram showing what he says is the whole cycle. It starts with isolation, then they eliminate the prisoner's ability to forecast the future, when their next meal is, when they can go to the bathroom. It creates dread and dependency." Is that an accurate description of your, quote, whole paradigm?
James Elmer Mitchell: No.
Mr. Lustberg: What's wrong with it?
James Elmer Mitchell: It's just not my paradigm.
Mr. Lustberg: In what sense?
James Elmer Mitchell: In the sense that it's not my paradigm.
Mr. Lustberg: Okay. What's different between your paradigm and what's described in that book?
Cody Smith: Objection.
Mr. Lustberg: You can answer.
James Elmer Mitchell: Oh. Read that quote again?
Mr. Lustberg: Sure. "According to Steve Kleinman, a Reserve Air Force colonel and experienced interrogator who's known Mitchell professionally for years." Let me stop right there. Do you know Mr. Kleinman?
James Elmer Mitchell: Yeah, I offered him a job in 2005 just before he asked me for a job in 2005 just before this article and book was published and we turned him down because we thought he was a glory hound.
Mr. Lustberg: You thought he was a?
James Elmer Mitchell: He was seeking glory. He wanted to be a talking head and he was just trying to fill out his resume.
Mr. Lustberg: Okay. Sorry, I interrupted the sentence, I apologize: "According to Steve Kleinman, a Reserve Air Force colonel and an experienced interrogator who's known Mitchell for years, learned helplessness was his whole paradigm. Mitchell, he said, draws a diagram showing what he says is the whole cycle. It starts with isolation, then they eliminate the prisoner's ability to forecast the future, when their next meal is, when they can go to the bathroom. It creates dread and dependency." And the question I had asked was you had said that was not your paradigm, and so my question had been, what's different about that from your paradigm.
James Elmer Mitchell: Well, that's
Mr. Lustberg: And there was an objection.
Cody Smith: There was an objection.
James Elmer Mitchell: Well, that's a description of a paradigm that some people in foreign countries have used, and it's a description of a paradigm that produces increased dependence, but it doesn't necessarily lead to learned helplessness.
Mr. Lustberg: Okay. When you say it doesn't necessarily lead to learned helplessness, it could lead to learned helplessness; is that right?
James Elmer Mitchell: I don't I don't know, you know. I don't know. Because I don't know that that condition is inescapable or that the person has difficulty coping with it, so I don't know. You'd have to look at the situation and you'd have to look at the person.
Mr. Lustberg: Just a couple more I want to ask you about that on this list of presentations.
James Elmer Mitchell: Sure.
Mr. Lustberg: One of the presentations. I'm sorry this doesn't have page numbers on it, but it's from 1994, and it's actually, if you go to the hold on. The third to the last page, it's the one right at the top. I know I see that's another it's an annual meeting of the Department of Defense SERE psychologists. Does that mean that this one is called, "Reducing Resistance Training- Related Injury Rates."
James Elmer Mitchell: Right.
Mr. Lustberg: Do you see that?
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: And my question is: What kind of injuries were occurring in resistance training?
James Elmer Mitchell: I'm going to describe the SERE-related techniques that have not been discussed yet and have not been cleared by the Government. So my understanding is the individual SERE techniques they use are not classified. There was a process that they used called man handling where you essentially swing the person in a figure eight. If you guys are going to object, this is the time. All right? And what that did, it could, if done improperly or done by a person who was very strong, it could result in whiplash injuries to the neck, especially if they didn't use the special improvised collar properly. And the other kinds of injuries had to do with orthopedic injuries to the knee, I think, the knees, because some folks use cramped confinement. But the boxes at the SERE school are really small and they have special slots where they can make them super small. The other thing they do at the SERE school, what they did to me, is they'll put you in a 55-gallon drum and fill it up with water and cover the lid so that the water is just under your nose, or at least they would do that when I was there, so there were sometimes there were injuries related to to that. There were some injuries but they were and these were rare injuries, right? I mean, I only found one instance of a person who had a herniated disc from a man handling, right, but lower back strain was a little bit more common, it was but it was still in very low numbers.
Mr. Lustberg: Any other any of the other techniques cause injuries?
James Elmer Mitchell: Occasionally a slap if it's done improperly could injure an eardrum. But again, that was really rare because the way they do the slaps, it's with the fingers and it's against the cheek really if you aim it properly. Walling didn't I don't recall it producing any injuries. I don't recall there's a technique called the attention grab, I don't recall it producing any injuries. I don't recall any injuries from the approved stress positions that they use. Sometimes when instructors made up their own stress positions there could be injuries. One time an instructor decided to punish a student by having them drink water and actually managed to induce water intoxication. I think I don't recall that paper focusing on psychological problems because we just didn't see a lot of that coming out of training.
Mr. Lustberg: I just want to make sure I understand what you said. The paper been focus on psychological problems because you weren't seeing psychological problems as a result of SERE training?
James Elmer Mitchell: What I said was I don't recall the paper doing that. If we had the paper, I'd be happy to look at it and explain any paragraphs or any comments or any terms, but I don't have the paper. So but I don't recall that. I would have listed in that paper, since it dealt factually with the kinds of I went to the hospitals around and the military ones and actually asked them what kind of you know, we followed a group of folks who would come to training and then we followed them for some weeks afterwards to see whether they reported to the clinic, reported problems that sort of stuff. So we focused primarily on the following the rules and following the standard procedures and what would happen if you didn't.
Mr. Lustberg: Did you did you give any presentations or do any writing with regard to interrogation?
James Elmer Mitchell: I did at this particular point in-service training for psychological technicians that worked for me, we did quite a bit of self-study in various kinds of but I didn't give conference. I didn't give a conference. So the answer is yes.
Mr. Lustberg: Okay. And how about on did you give any presentations or do any or write anything that you recall on issues of trauma or posttraumatic stress disorder?
James Elmer Mitchell: Well, when I was at the survival school, I actually did a series of evaluations of pilots that reported having posttraumatic stress disorder, and I had to brief my commander about the symptomatology they experienced and what the probability was of being able to keep them in you know, flying and that sort of stuff, which is the primary goal.
Mr. Lustberg: Just give me one second. Just one more thing on just back to learned helplessness for a second.
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: You mentioned Dr. Seligman?
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: If I recall correctly from your book, you met with Dr. Seligman, correct?
James Elmer Mitchell: Before I was involved in the interrogation program at all, yes.
Mr. Lustberg: Uh-huh. And what was the nature of your discussions with Dr. Seligman?
James Elmer Mitchell: Okay. Dr. Seligman held a special meeting at his house for the FBI. The FBI invited me, along with one other actually, I guess the FBI invited the CIA officer, and the officer cleared it with the FBI and brought me as well, right?
Mr. Lustberg: Okay.
James Elmer Mitchell: And so I attended that conference at his house.
Mr. Lustberg: Here in Philadelphia?
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: And what was the subject of the conference?
James Elmer Mitchell: He had a variety of I don't know what you would call them, experts on various things, who talked about how they thought their approaches could affect the war on terror.
Mr. Lustberg: Okay. So this was post 9/11, right?
James Elmer Mitchell: It was post 9/11. Yeah, in fact, it was in April of 2002.
Mr. Lustberg: Okay.
James Elmer Mitchell: It was late March, actually, I think, probably.
Mr. Lustberg: Okay. For some reason I thought it was in December '01, but I could be wrong.
James Elmer Mitchell: No.
Mr. Lustberg: Okay. And you said that there were experts who talked about how they thought the approaches could affect the war on terror. What do you mean by that?
James Elmer Mitchell: They wanted to talk to the FBI about how the various theories they had, research they had, could be used to, you know, convince terrorists that they shouldn't commit terror attacks, or address what some of them thought were the inequalities in income and opportunity that lead some people to pursue, you know, jobs in terrorism or how to make I'm trying to remember all the topics. I'm having a little trouble remembering, but I can tell you one topic that wasn't discussed.
Mr. Lustberg: I was about to ask you. I'm sure. Go ahead.
James Elmer Mitchell: Go ahead and ask me.
Mr. Lustberg: Interrogation?
James Elmer Mitchell: No interrogation, nor learned helplessness.
Mr. Lustberg: Uh-huh. So there was a meeting with Dr. Seligman who's the father of this learned helplessness theory and there's no discussion with him about learned helplessness?
James Elmer Mitchell: No, because it wasn't that kind of discussion. It was more of a policy, things they wanted to get to the brass kind of thing.
Mr. Lustberg: And there was no discussion of in terms of responses to terrorism about interrogation of terrorists or
James Elmer Mitchell: I don't remember, to be candid. Certainly none that involved learned helplessness. There might have been it was primarily focused on the law enforcement efforts of the FBI, is what the conference was primarily focused on. And I think he published a I think he put out some kind of a summary of what they discussed there, so my memory is not the right judge. I would suggest you get a copy of that.
Mr. Lustberg: Let me see what I have. Following that meeting, you invited Dr. Seligman to make a presentation, correct?
James Elmer Mitchell: Yes.
Mr. Lustberg: Where was that?
James Elmer Mitchell: It was in San Diego.
Mr. Lustberg: Who was it for?
James Elmer Mitchell: It was for the SERE psychology conference for that year.
Mr. Lustberg: And what did what did he speak about?
James Elmer Mitchell: I asked him to do a presentation on learned optimism, which is the opposite of learned helplessness. It's what I was describing how when you put a person in a situation where they first begin to experience some sensations of helplessness and then you give them an opportunity to successfully cope with it, it kinds of burns in the optimism and increases the tendency of the person to continue to try to resolve the problem. And I thought that what he would do, and I think he actually did do, is and I say I think he actually did do it because I wasn't there, I was deployed, was talk about how that relates to POWs coming back.
Mr. Lustberg: So if so Dr. Seligman is quoted as saying that he was invited to speak about how American personnel could use what is known about learned helplessness to resist torture and evade successful interrogation by their captures. This is what I spoke about. Is that consistent with I'm just not sure if that's consistent with what you just said.
Cody Smith: Objection. You can answer.
James Elmer Mitchell: I don't know what he said. I don't know what was in his mind, all I know is what I asked him to talk about, and what I asked him to talk about was other end of that, which is his studies on learned optimism.
Mr. Lustberg: Did you ever speak to him about learned helplessness?
James Elmer Mitchell: I think I might have mentioned to him in that first meeting that his theory was a useful way to think about what happened in the SERE schools, but I don't think we had an in-depth conversation. I mean, he seemed pleased that I was talking about it, but I don't think
Mr. Lustberg: Okay. If you if you would, just explain what you just said. That his theory was a useful way to think about what happened in the SERE schools. What do you mean by that?
James Elmer Mitchell: Well, you want to prevent learned helplessness. You want them to experience a sense of helplessness, but you want to prevent that profound thing that happens over here, right? So what you really want to do is train them to be optimistic about their ability to resist to the best of their ability and then bounce back, and the way that you do that is literally evoke different kinds of emotions, which would be different for different people, you know, and give them an opportunity to successfully cope in the presence of those emotions, but they have to be real emotions. And so his learned optimism theory, which is kind of the carbon the opposite side of the other one is what I was talking about here.
Mr. Lustberg: So explain something to me about this that I have not understood. If if one experienced learned helplessness in a setting where you were a captive, if I understand the study of the dog the dog study that Dr. Seligman did, one would would just capitulate, right? You would try to find no way out, right?
Cody Smith: Objection.
James Elmer Mitchell: I don't know I don't understand are you asking me to describe his dog study?
Mr. Lustberg: No. I'm trying to understand the application of that to a human being in captivity and what it would mean. So if yeah, is that something that you have can explain or do you want me to be more specific with my question? I'm happy to try to be a it wasn't a particularly good question.
James Elmer Mitchell: I would like you to be more specific.
Mr. Lustberg: Sure. Okay. So if a person experienced learned helplessness, you said the far end of the spectrum, and they were in captivity, then under those circumstances, presumably even if they were given a way to remedy their situation, they would do nothing about it because that's what the dogs did in Seligman's study, right?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. So tell me why that's wrong.
James Elmer Mitchell: He found that you could completely reverse what was going on for most of his dogs by helping them escape and that eventually they began to do that again on their own.
Mr. Lustberg: Okay.
James Elmer Mitchell: That's my recollection of the study.
Mr. Lustberg: Okay. Because what I was thinking is if somebody was experiencing learned helplessness, then they would couldn't be induced to give any answers or provide any information because they would just accept the punishment that they were being provided and be totally passive in the face of that. Is that
James Elmer Mitchell: You're asking me to speculate about that.
Mr. Lustberg: I'm not I'm asking what your understanding of Dr. Seligman's studies were, and you were familiar with them, right? You have to answer yes?
James Elmer Mitchell: Yes.
Cody Smith: Objection.
Mr. Lustberg: No problem.
Cody Smith: Is the question were you familiar with them, was that
Mr. Lustberg: That was the last one.
Cody Smith: That question has been answered.
Mr. Lustberg: I got it.
Cody Smith: Wait for the next one.
Mr. Lustberg: Okay. So I'm going to the prior one.
Cody Smith: Okay.
Mr. Lustberg: Which is: Based upon your understanding of the studies, if a person was experiencing learned helplessness, then they would do nothing to remedy their situation; is that right? Isn't that what learned helplessness is?
James Elmer Mitchell: What sense are you using that?
Mr. Lustberg: My understanding if I'm misunderstanding learned helplessness, you'll tell me. At that far end of learned helplessness, where you're completely passive and do nothing to remedy your situation, under those circumstances you would, for example, not answer questions because you saw no way out either way, right?
James Elmer Mitchell: That's correct. And in fact, that's what I warned the CIA about. When early on when I discussed learned helplessness, and in fact, there's a document they have right now that I'm trying to get cleared, where we where we warned against that specific problem, that if you were to induce profound helplessness, you actually impair the ability of a person to provide intelligence.
Mr. Lustberg: All right. We'll probably come back to learned helplessness. Before 9/11, did you ever write or give any presentations on how SERE resistance related training techniques might be used in actual interrogations?
James Elmer Mitchell: No.
Mr. Lustberg: Did you write anything about that or have discussions with anybody about that prior to 9/11?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. I want to show you some language from your book and just ask about it. It might be easier if we
James Elmer Mitchell: Okay.
Mr. Lustberg: You'll be familiar with it because it's your book.
James Elmer Mitchell: I might not remember every word.
Mr. Lustberg: I get it. We'll mark this as 4, right? (Exhibit No. 4, Interrogating the Enemy, by James E. Mitchell, Bates MJ22577 through 22942, was marked for identification.)
James Elmer Mitchell: Is this the book as it went as it went to press or
Mr. Lustberg: It's the book as we got it.
James Elmer Mitchell: No, this is not the book that went to press. This was an early draft that was submitted to the CIA in August of 2015.
Mr. Lustberg: Well, let me point you to some language and you can tell me whether, to your knowledge, it's still accurate or it got changed.
James Elmer Mitchell: Sure.
Mr. Lustberg: Actually, just so you know, we're still on talking about your background, you talked about your background in the book.
James Elmer Mitchell: Okay.
Mr. Lustberg: And let me direct your attention in that regard to page 59.
James Elmer Mitchell: Okay.
Mr. Lustberg: So the bottom paragraph beginning on line 20. Do you see that?
James Elmer Mitchell: Yes.
Mr. Lustberg: So just to make this a little bit easier, why don't you just read that paragraph and then I'll ask about it?
Cody Smith: To himself or into the record?
Mr. Lustberg: No, no, no, you can read it to yourself.
James Elmer Mitchell: Okay.
Mr. Lustberg: So I just want to ask you a couple questions about this. It says: "As a doctoral level psychologist for 16 years, I had extensive experience questioning hostile, deceptive subjects for suitability for continued duty assessments." What what experience had you had in questioning hostile deceptive subjects for suitability for continued duty assessments?
Cody Smith: Just so the record is clear, that's only part of the sentence.
Mr. Lustberg: I'm going to I'm going to what I'll do is go through each of those areas.
James Elmer Mitchell: Well, when a commander refers, either a special operator or a survival instructor or something like that, and asks for my opinion about whether the person can continue duty, very often it occurs in the context of some crime that they've committed that they're either considering judicial punishment or some sort of I guess they wouldn't consider it a crime if it was non-judicial, but they're trying to make a decision about that. They're also trying to decide whether or not the person should continue in whatever duties they're in, and so I had I had that experience several times. I don't know I don't know.
Mr. Lustberg: You say extensive experience.
James Elmer Mitchell: Well, the extensive part applies to the entire sentence.
Mr. Lustberg: Got it.
James Elmer Mitchell: Do you want me to parse each piece?
Mr. Lustberg: Yes. So I mean, just briefly, you can do that, sure. But I mean, so I'm trying to understand what your doctoral level psychologist experience had been on each of these things: Questioning hostile, deceptive subjects for suitability for continued duty assessments, security evaluations, psychological profiling, sanity evaluations and forensic assessments for people who had committed a number of crimes.
James Elmer Mitchell: Yup.
Mr. Lustberg: So since you say you have you had extensive experience questioning those people, I just trying to understand what that experience was.
James Elmer Mitchell: It was a cumulative I wasn't trying to imply that I had extensive experience with each one.
Mr. Lustberg: Each one, I got it. Okay. That's helpful.
James Elmer Mitchell: We're talking
Mr. Lustberg: For each of those things.
James Elmer Mitchell: We're talking it's the same basic set of skills, all right? Basically what you do is you try to put together a timeline and you and you try to determine the truth because although they may call it an evaluation, in many cases it's really an investigation for the Government. The person is not coming to me seeking clinical care, they're being referred because of some kind of an issue. I'd be happy to give you an example if you'd like.
Mr. Lustberg: That would be great.
James Elmer Mitchell: Okay. So let's talk about the forensic assessments of individuals who committed a variety of criminal offenses. When I was at Wilford Hall, I got a referral for a man who had stalked his wife. He had kidnapped her from a parking garage, taken her to a hotel, duct taped her to the bed, beat her, raped her and then cut her eyelids and her clitoris off. That person was saying that he did that because the devil was inside of her and he needed to let it out. That was his thing. The request I got was to determine whether or not he understood the wrongfulness of his behavior at the time and whether he could participate in his in his own defense, and in the course of doing that, what I did was spend several days putting together his timeline, and asking him questions while he continued to pretend that it had something to do with the devil, but I could I did his timeline out of order so it was more difficult for him to follow, and you know, sometimes I would use a theme where it sounded like I was understanding why he did the sort of things that he did, because you know, people can be difficult, and he was very hostile towards me because he was busy he even threatened at one point to hit me with a lamp, I think, that was in my office. And then finally when I told him after I got the timeline completed and walked him through it and said this is what you were thinking at each stage of this thing, he leaned forward and told me why he really did what he did. And I'm reluctant to tell you what that is, but I will if you would like.
Mr. Lustberg: Sure.
James Elmer Mitchell: Because what he said was, The bitch left me, so I knew I would never get any more sleep so I took her eyelids so she couldn't sleep either. And I couldn't imagine her having sex with another man, so I took her clitoris so she wouldn't enjoy it. In my mind, that didn't meet the McNaughton rules, all right, because he he clearly understood because he had put off kidnapping her in the presence of law enforcement officers, you know, like if there was a security guard or another person around. And there were several other instances where it was clear that he had planned that out.
Mr. Lustberg: So who were you retained by a prosecutor or something to do this type of forensic
James Elmer Mitchell: I was retained by the court to do it.
Mr. Lustberg: And
James Elmer Mitchell: It was for a court-martial.
Mr. Lustberg: It was for a court-martial. And the meeting you had with him was
James Elmer Mitchell: Days.
Mr. Lustberg: in your office?
James Elmer Mitchell: Yes, for several days. He was on release pending the trial. That's just one example.
Mr. Lustberg: And is that a typical example in the sense of I mean not in terms of the specific facts, but that's the type of assessments that generally you were doing that you're referring to here?
James Elmer Mitchell: I can give you another example if you'd like.
Mr. Lustberg: Sure. Give me because two is better than one.
James Elmer Mitchell: I got a request to do an assessment of a person who had sexually assaulted an eight-year-old girl with spina bifida. Specifically what he had been alleged to have done was have her masturbate him up to the point of almost ejaculating and then quitting. And his position was that he he couldn't control himself, but in the course of the several days that I talked to him putting together his timeline where he lured her to the basement and he did all this sort of stuff, he indicated that he had stopped just prior to ejaculation, and my reasoning was that if he could stop at that point, when most people would concede that it would be difficult to stop, he could have stopped anywhere down that chain, you know, up to that point. And again, he's another one of those people who's trying to hide the actual events that had occurred and why he had done them. And so you essentially have to do it's very similar to the kinds of investigations I learned to do in psychological autopsies and airplane crashes and when I was a bomb guy, I used to be a bomb disposal guy, and we learned to do those kinds of investigations there. Similar sort of thing.
Mr. Lustberg: When you used the phrase "psychological autopsies," what does that mean exactly?
James Elmer Mitchell: In some federal
THE VIDEOGRAPHER: Less than two minutes.
Mr. Lustberg: All right. We'll get through the psychological autopsies question. I was hoping to get through this whole line, but that's okay. Go ahead.
James Elmer Mitchell: In some federal cases when a person kills themselves (sic), you try to recreate the last couple of days before they killed themselves (sic), and you do that by interviewing witnesses and by looking over records and by asking questions of people sometimes who are trying to hide their complicity in what occurred.
Mr. Lustberg: Just one last question before the break, which is: You said that you did these analyses for purposes of determining whether there might be insanity defense. That's your reference to McNaughton, right?
James Elmer Mitchell: Right, that's one end of the thing.
Mr. Lustberg: But you mentioned earlier as well that you did McNaughton, and sometimes to determine whether they were competent to stand
James Elmer Mitchell: To stand trial, and sometimes to determine if they should continue duty, sometimes to determine whether they should be allowed special access to something like nuclear weapons. I mean, it varied.
Mr. Lustberg: With regard to the McNaughton-type analysis that you did, did you ever find that somebody was, in fact, insane under McNaughton?
James Elmer Mitchell: Me personally?
Mr. Lustberg: Yeah, on any of these that you did the extensive examinations that you did.
James Elmer Mitchell: First off, insanity is a decision that the judge makes, not me.
Mr. Lustberg: Well, I know, but you're being you're being asked to render an opinion on that, right?
James Elmer Mitchell: I don't I don't specifically recall. I have a vague recollection of this one woman who was kidnapped and did a bunch of coke and then kind of stayed away for a long period of time and got involved in some other stuff, and I thought that she had some sort of diminished capacity because of the things that had happened to her, but I don't recall that specifically, the details of it. It was a long time ago.
Mr. Lustberg: I'm almost done with this, but why don't it sounds like we're done with our tape right now.
THE VIDEOGRAPHER: The time is 12:24 PM. We are now off the video record. This ends Disk No. 1. (Lunch recess.) The time is 1:11 PM. We are now back on the video record. We can proceed.
Cody Smith: As a point of clarification, it's not 1:11. You've got to fix your clock there. I think it's 1:04.
Mr. Lustberg: I've been going for purposes of keeping time, I've been going with his time as he says them.
Cody Smith: All right.
Mr. Lustberg: So I mean, it doesn't matter as long as you know, however you want to do it.
Cody Smith: Not a problem.
Mr. Lustberg: Yeah. Okay. Thanks, Dr. Mitchell. And I didn't thank you initially for coming here today. I do appreciate that. So you have many years of experience in the military, right?
Mr. Schuelke: You have to answer.
James Elmer Mitchell: Yes. Sorry. Yes.
Mr. Lustberg: And during the time that you've been in the military, have you been trained on the Geneva Conventions?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. What was the nature of that training?
James Elmer Mitchell: I was a military member of the you know, so they trained you in the Geneva Conventions and they also train you in the Geneva Conventions at the SERE school.
Mr. Lustberg: And what's your understanding of the Geneva Conventions?
James Elmer Mitchell: That if you're a signatory and you're a legal combatant that has signed the Geneva Conventions, then they apply to you. Although I think in 2006, I can't remember never mind.
Mr. Lustberg: I'm sorry, you were going to say something happened in 2006?
James Elmer Mitchell: No, I'll retract that.
Mr. Lustberg: Well, I'm going to now ask you about it. What's your understand that is it your understanding that something changed?
James Elmer Mitchell: Wasn't there a Hamdan ruling that where they required they decided that the Geneva Conventions would apply to some of the folks? I don't have a clear recollection of that, but that's what I was thinking of.
Mr. Lustberg: Okay. Now, Dr. Mitchell, I know that one second. Sorry. You're aware that your name has come up in a number of inquiries and so forth, and so when I ask you questions I'm going to ask you some questions about things that other people have said in various reports and so forth, and I do that most respectfully. So did you before you before Abu Zubaydah, did you ever conduct any interrogations?
James Elmer Mitchell: Law enforcement interrogations?
Mr. Lustberg: Yes.
James Elmer Mitchell: No.
Mr. Lustberg: And so when the Senate Select Intelligence Committee and others talk about how you had no experience as an interrogator, would they be would that have been true?
Cody Smith: Objection.
James Elmer Mitchell: The sentence that you quote is out of context and not complete. What the sentence actually says is no relevant experience, to which the CIA pushes back and they said, We would have been negligent in our duty we would have been derelict in our duty had we not sought him out. So I think your quote is incorrect.
Mr. Lustberg: Okay. Well, let me give you the exact quote and then you can respond. In the Senate Select Intelligence Report
James Elmer Mitchell: Do you have a copy that so I can look at it?
Mr. Lustberg: Sure, we can do that. Just to let you know, this is just the executive summary because that's all that's publicly available. So we'll mark yeah, if I slide it over, I'll scratch your nice table.
Mr. Schuelke: We'll put it on the bill.
Mr. Lustberg: Yeah.
Mr. Schuelke: And this is
Mr. Lustberg: We'll mark this as mark at as 5; is that right.
Cody Smith: Correct. We're up to 5. (Exhibit No. 5, Senate Select Committee on Intelligence Detention and Interrogation Program, was marked for identification.)
Mr. Schuelke: Is it 4 or 5?
Cody Smith: It's 5.
Mr. Lustberg: So I'm just going to point you to it's obviously a very long report, so why don't I just point you to a couple of passages that I want to ask you about. Let's start with on page 11 of 19, and this refers to the findings, I believe. So page 11 at the beginning. Under No. 13, the first paragraph says: "The CIA contracted with two psychologists to develop, operate and assess its interrogation operations. The psychologists' prior experience was at the US Air Force Survival Evasion, Resistance and Escape (SERE) school. Neither psychologists had any experience as an interrogator nor did either have specialized knowledge of Al-Qaeda, a background in counterterrorism or any relevant cultural or linguistic expertise." Do you agree or disagree with that statement?
James Elmer Mitchell: I disagree with that.
Mr. Lustberg: Why?
James Elmer Mitchell: Because I had over six years' experience in counterterrorism.
Mr. Lustberg: Okay.
Cody Smith: Were you finished your answer?
James Elmer Mitchell: No.
Mr. Lustberg: Oh, I'm sorry. Thank you.
James Elmer Mitchell: I would the problem I have with this thing is I don't have a timeline. So are they talking 1995, are they talking 2006? When are they referring to? Do you follow?
Mr. Lustberg: I completely understand your question. As I read it, and you tell me if you read it differently, I mean, the words are what the words are. It says the CIA contracted with two psychologists. So my assumption is that they're talking about as of the time of those contracts.
James Elmer Mitchell: As of the time that both of us were contracted?
Mr. Lustberg: I you have the same access to the words as I do.
James Elmer Mitchell: Well, if they're referring to the time that both of us were contracted to do what came to be known as EITs, then I had spent 90, maybe 100 days getting briefings every day on Al-Qaeda, briefings on what the intelligence requirements were, briefings on what was known about the organization of Al-Qaeda by the experts in the CIA. If that's the time that they're referring to.
Mr. Lustberg: How about at the time that you first began working with them?
James Elmer Mitchell: I was aware of Al-Qaeda. I did get a I did get briefings from them when they asked us to take a look at that Al-Qaeda training manual, that resistance to interrogation training manual, but nowhere near the depth that I got when I deployed in April.
Mr. Lustberg: Uh-huh. So prior to you being asked to review the Manchester manual, is that what you're referring to, sir?
James Elmer Mitchell: Yes.
Mr. Lustberg: Prior to your being asked to review that, did you have any, quote, unquote, specialized knowledge of Al-Qaeda?
James Elmer Mitchell: Not Al-Qaeda specifically.
Mr. Lustberg: What what generally?
James Elmer Mitchell: A friend of mine by the name of Don Hutchings was kidnapped in 1995 and killed by the same group well, not the same group, but by a group that was under the same spiritual leader that kidnapped Daniel Pearl, and once he was kidnapped by the Kashmiri separatists, I became interested in that whole issue around Islamic terrorism, and you know, why they're wanting to kill westerners and capture westerners. So I had I had a probably better than average familiarity with the tenants of Islam that lead to that sort of thing, but I wouldn't I wouldn't compare myself I wouldn't say that I was an expert on Al-Qaeda, because even the CIA in their documents when they explained this say that very little was known about Al-Qaeda. I knew they had done the attack. But beyond that I didn't know much more.
Mr. Lustberg: And how about the part where it says, "Neither psychologist had any experience as an interrogator"?
James Elmer Mitchell: Can you explain what you mean by interrogator?
Mr. Lustberg: I'm reading I'm reading the words on this page. So do you disagree with that statement?
James Elmer Mitchell: I didn't have any experience as a law enforcement interrogator at all. And if what you mean if what they mean is law enforcement interrogator, the answer is I didn't have any experience. If what they mean is the A. Merriam Webster definition of interrogator, which is asking criminals, people who have been charged with crimes, questions when they might be seeking to, you know, withhold information, then those things that I discussed earlier I had skills that but no, in terms of law enforcement interrogator.
Mr. Lustberg: Had you had any law enforcement interrogation training by that time?
James Elmer Mitchell: I had I had studied the various methods that we used. Are we still talking about when I wrote that paper?
Mr. Lustberg: I'm talking about when you began your work for the
James Elmer Mitchell: I don't know I don't know what that timeline is.
Mr. Lustberg: Okay.
James Elmer Mitchell: You've got to tell me again.
Mr. Lustberg: So let's say late 2001, early 2002.
James Elmer Mitchell: Well, I I had been law enforcement trained as a hostage negotiator, all right, with the San Antonio Police Department, they might call it crisis negotiating now, but that's what it was at the time. I had, in the course of getting familiar with the various interrogation techniques that were used, I had studied law enforcement interrogation, including sort of the standard list of things that, you know, folks had used like establishing rapport, that kind of stuff. In addition, I, through video studies, studied the Reid technique, so I was familiar with those.
Mr. Lustberg: And what is that?
James Elmer Mitchell: The Reid technique is this nine-step process that's used primarily to elicit confessions. Also, I had attended two interrogation courses, and I know you have two copies of that document, one of which included the country that provided the training and one of which doesn't. But I had had two interrogation courses on interrogation for intelligence gathering.
Mr. Lustberg: When did you get those?
James Elmer Mitchell: '90s. Maybe early '90s.
Mr. Lustberg: Had you ever actually performed any intelligence gathering interrogations before this?
James Elmer Mitchell: No.
Mr. Lustberg: So
Cody Smith: Were you finished with your training?
James Elmer Mitchell: I've actually lost track of what I said.
Cody Smith: We can have the court reporter read it back?
James Elmer Mitchell: Would you? (Pertinent portion of the record is read.) Can you ask your original question?
Mr. Lustberg: I think you answered it.
James Elmer Mitchell: I don't know if I answered it completely, so with the reservation that I don't know if I answered it completely, we can move on.
Mr. Lustberg: Okay. Take a look at page 424
James Elmer Mitchell: 424?
Mr. Lustberg: Yeah. In the executive summary part.
THE VIDEOGRAPHER: Counsel, do you need help with your microphone?
Mr. Lustberg: I'm going to work on it. Okay now?
THE VIDEOGRAPHER: Yes.
Mr. Lustberg: Thank you.
James Elmer Mitchell: Okay.
Mr. Lustberg: At the top of page 424, it says that it says that I'm sorry, that: "CIA records indicate that CIA officers and contractors who conducted CIA interrogations in 2002 did not undergo any interrogation training. The first interrogator training course did not begin until November 12th, 2002, which time at least 25 detainees had been taken into CIA custody." Is that, to your knowledge, correct?
James Elmer Mitchell: I think if you want to know what the CIA did, you should ask the CIA.
Mr. Lustberg: I'm asking whether you to your knowledge it's correct? If you don't know, you don't know.
James Elmer Mitchell: I have no idea how many they trained or who they trained. I don't have any idea how many people they took into custody. I do know that the first interrogator training course began sometime in November of 2002.
Mr. Lustberg: And did you attend that course?
James Elmer Mitchell: I know the documents say I did, but I did not.
Mr. Lustberg: Before that, had you attended any CIA course interrogation course?
James Elmer Mitchell: No. Although we had a law enforcement interrogation specialist deployed with us with Abu Zubaydah and he conducted on-the-spot kind of seminars around the law enforcement issues that were involved.
Mr. Lustberg: He conducted on-the-spot seminars?
James Elmer Mitchell: He was deployed with us at the black site. And he would say, These are the kinds of interrogation techniques I would use with this guy and then we would get feedback afterwards.
Mr. Lustberg: Okay. And you said "we would get feedback," so you took advantage I don't mean in a bad way, you availed yourself of his advice in regard?
James Elmer Mitchell: I think you couldn't avoid it, but I did avail myself of his advice.
Mr. Lustberg: Previously I mentioned to you this book, The Dark Side, by Jane Meyer. You said you had not really read that. In that book it says, I'm just going to quote you one sentence, I can show it to you if you want, but it says: "According to one colleague who was an interrogator, Mitchell had not even" "had not even observed an interrogation." Prior this is prior to to questioning Abu Zubaydah. Is that true?
James Elmer Mitchell: No. I was deployed
Cody Smith: You can finish your answer.
James Elmer Mitchell: You want me to finish it?
Cody Smith: Go ahead.
James Elmer Mitchell: No, I was deployed with the CIA and the FBI and I was there every single day, and with the exception of those things that took place in the hospital, I observed every single interrogation that was done. Literally by the time that that man gave that piece of advice, I had watched him do over 100 interrogations and he had watched me do zero.
Mr. Lustberg: That man?
James Elmer Mitchell: Whoever gave you that piece of advice. If he said that he was there and I hadn't done any, then he hadn't observed say, then he's not telling you the truth.
Mr. Lustberg: Okay. I'm going to mark another exhibit. I'm going to show you Exhibit 6.
James Elmer Mitchell: Are we done with this?
Mr. Lustberg: Keep it because we'll come back to it. Thank you. (Exhibit No. 6, Testimony of Ali Soufan, was marked for identification.)
James Elmer Mitchell: Oh, Ali Soufan. So I was right about is this one mine or yours.
Cody Smith: Just so you know, the court reporter marks the official one for the record. That's the one you should be looking at.
Mr. Lustberg: I'm showing you what's been marked as Exhibit 6. Have you seen this before?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. Directing your attention to page 3.
James Elmer Mitchell: Okay.
Mr. Lustberg: The very last paragraph on the third page, it says: "It is also important to realize that those behind this technique" if you want to that's a little out of context, so if you want to take a quick look at it.
Cody Smith: Dr. Mitchell, in fairness, you have the right to review the whole document.
Mr. Lustberg: 100 percent. Take as much time as you need. Mr. Smith is 100 percent right. But just to orient you, I'm going to ask you about that paragraph that I just
James Elmer Mitchell: Okay. I think I'm ready to proceed.
Mr. Lustberg: Okay. It says: "It's also important to realize that those behind this technique are outside contractors with no expertise in intelligence operations, investigations, terrorism or Al-Qaeda, nor did the contractors have any experience in the art of interview and interrogation. One of the contractors told me this at the time and this lack of experience has also now been recently reported on by sources familiar with their backgrounds." Do you for purposes of this discussion, assume that the contractors are you and Dr. Jessen. If that's true, what's your reaction to that paragraph?
Cody Smith: Objection. You can answer.
James Elmer Mitchell: That he's incorrect.
Mr. Lustberg: In what ways?
James Elmer Mitchell: Well, the idea that I had no expertise in intelligence operation by the time we took over those interrogations is incorrect; that I had no no experience in investigations, completely incorrect; that I had no experience in terrorism, completely incorrect; that I knew nothing about Al-Qaeda by the time we took over those interrogations, completely incorrect. He and I sat in the same briefings over and over and over and over for six months. The briefings varied, the briefer varied, but the fact is I received the same briefings and the same intelligence reports that he received, all right? Any expertise in the art of interview? My God, I'm a clinical psychologist, interviews are what we do and my entire career has been focused on interviewing, so obviously that's incorrect. When he uses the word interrogation here, he must mean law enforcement interrogation, which is true I don't have law enforcement interrogation. It is completely untrue that I told him about any kind of lack of experience. I know this couldn't have been Dr. Jessen because he was still working for the DOD at the time, so he has to be referring to me. All right? And these recently reported sources familiar with their backgrounds, I don't know who they would be, because Kleinman claims that he knows me, but he really knows squat about me. He knows virtually nothing other than I refused to give him a job. So I would say that paragraph, in and of itself, is completely wrong.
Mr. Lustberg: Okay.
James Elmer Mitchell: Are we done with that document?
Mr. Lustberg: Yes, we are. We may come back to it.
Cody Smith: Do you need to ask me a question?
Mr. Lustberg: Do you want to speak to your counsel? You can.
Cody Smith: Just slide over here and put your hand over the mic.
Mr. Lustberg: Are you good?
Cody Smith: Yes.
James Elmer Mitchell: Let me put the mic back on. I wanted to give you more information, but...
Mr. Lustberg: Okay. Now you can't say that and not what additional information do you want to give me?
James Elmer Mitchell: That Ali Soufan heard me say something to Jennifer Matthews, who was an expert on Al-Qaeda. When Jennifer asked me, What do you know about Al-Qaeda, and I said, Next to you, virtually nothing. This was several weeks into me getting briefings every day, but she was the foremost expert on Al-Qaeda and he overheard that conversation, and my belief is that he has spun that into this.
Mr. Lustberg: Okay.
Cody Smith: Now, Dr. Jessen, while there's no question Dr. Mitchell, while there's no question pending, your job today is just to answer his questions.
James Elmer Mitchell: Got it.
Cody Smith: Okay? You will have an opportunity to tell your story when we go to trial. Okay?
James Elmer Mitchell: Got it.
Cody Smith: So let's today just answer his questions so we can get on our way here, okay?
James Elmer Mitchell: Got it.
Cody Smith: Thank you.
Mr. Lustberg: On the other hand, if you feel like telling me stuff, I'm happy to hear it.
James Elmer Mitchell: Got it.
Cody Smith: If you feel like telling him stuff, you should ask to speak to me outside so that I can have a more pointed conversation with you.
James Elmer Mitchell: Got it.
Cody Smith: Okay? Thank you, sir.
Mr. Lustberg: As of in May 2001, according to your manuscript, you turned down a CIA job. Do you recall that?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. If you need it, I can refer you to the page of your manuscript.
James Elmer Mitchell: No, I believe you.
Mr. Lustberg: Okay. But you said that you wanted to focus on starting your own business at that time; is that right?
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: Why is that?
James Elmer Mitchell: I didn't want to live in Washington, D.C., I wanted to be a contractor, I wanted to do more than, you know, just one set of things.
Mr. Lustberg: And and what were the what was your idea as to what kind of business you were setting up at that time?
James Elmer Mitchell: I wanted to do some consulting work for JPRA because those opportunities were available, and I wanted to be free to at that time I was doing some consulting to subcontractors with the FBI on things like what to do if a hostage is wired into a nuclear device where the galvanic skin response of the person is part of the firing system. I was interested in continuing to do that sort of work.
Mr. Lustberg: Did you view when 9/11 occurred, and I've heard you speak about 9/11, did you view that at all as a business as creating a set of business opportunities for you?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. So if I'm going to read you a quote from a New York Times article and just ask you for your reaction.
Cody Smith: Could we see a place a copy before the witness, please?
Mr. Lustberg: Of course. Absolutely. (Exhibit No. 7, New York Times article, "US Architects of Harsh Tactics in 9/11's Wake", was marked for identification.) Dr. Mitchell, let me know when you're ready.
James Elmer Mitchell: Is there a particular paragraph you're referring to?
Mr. Lustberg: Yeah, I'm going to refer to page 3, at the bottom towards the bottom there's a section called "A Career Shift," and it's the third paragraph from the bottoming starting with "but for someone." Let me read it. "But for someone with Dr. Mitchell's background, it was evident that the campaign against Al-Qaeda would produce opportunities. He began networking in military and intelligence circles where he had a career's worth of connections." Is that correct?
Cody Smith: Objection.
James Elmer Mitchell: I I have no idea what he was referring to. I didn't view the campaign against Al-Qaeda as a business opportunity, I viewed it as a patriotic duty.
Mr. Lustberg: Okay. I'm going to move on to another topic, which has to do with American Psychological Association. Did you belong to the American Psychological Association?
James Elmer Mitchell: At what point?
Mr. Lustberg: Did you ever belong to the American Psychological Association?
James Elmer Mitchell: Yes.
Mr. Lustberg: You resigned at some point?
James Elmer Mitchell: Yes.
Mr. Lustberg: When was that?
James Elmer Mitchell: I think it was 2006.
Mr. Lustberg: And why did you resign?
James Elmer Mitchell: I didn't like the stance that they took on involvement of psychologists in custodial interrogations of detainees.
Mr. Lustberg: And what in particular did you not like?
James Elmer Mitchell: They changed their rules and it was negatively impacting the military, you know, so I just thought it was I just didn't like it and I didn't want to support it.
Mr. Lustberg: Okay. If you would, in what way had they changed the rules?
James Elmer Mitchell: It's been a long time. My recollection, without looking at their documents, is that initially they had been more they had been more receptive to psychologists participating in roles of psychological oversight for the that's the wrong word, psychological monitoring for things that happened in in interrogations at Guantanamo and other places where the DOD was doing their interrogations. And then it got to the point where they people were saying they shouldn't be involved at all at all and there were other issues and so I resigned.
Mr. Lustberg: Okay. Let me show you I'm going to mark Exhibit 8. (Exhibit No. 8, Resolution adopted by APA on August 19, 2007, was marked for identification.) I'm sorry for the very small print. I can direct you to a particular place I'm going to ask about if you want. But I didn't want to you can read all of it if you wish.
James Elmer Mitchell: You can go ahead and ask me what you want to ask me.
Mr. Lustberg: Okay. Sure. I just want to ask you about two provisions of this. The first is: In the middle of that first page there's, under the one, two, three, the fourth be it resolved actually, the third says: "Be it resolved that the American Psychological Association unequivocally condemns torture, cruel, inhuman or degrading treatment or punishment under any and all conditions, including detention and interrogations of both lawful and unlawful enemy combatants as defined by the US Military Commissions Act of 2006." Do you see that?
James Elmer Mitchell: Did you say under the third whereas?
Mr. Schuelke: The third be it resolved.
Mr. Lustberg: I'm sorry, no, the third be it resolved.
James Elmer Mitchell: Oh, okay.
Mr. Lustberg: And then the one after that says: "Be it resolved that the unequivocal condemnation includes an absolute prohibition against psychologists knowingly planning, designing and assisting in the use of torture and any form of cruel, inhuman or degrading treatment or punishment." And then the last one that I wanted to address there is, it says: "Be it resolved that this unequivocal condemnation includes all techniques considered torture or cruel, inhuman or degrading treatment or punishment under the United States Convention against torture and other cruel, inhuman or degrading treatment or punishment, the Geneva conventions, the principles of medical ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman, or degrading treatment or punishment, the basic principles for the treatment of prisoners or the World Medical Association Declaration of Tokyo. An absolute provision against the following techniques therefore arises from, is understood in the context of, and is interpreted according to these texts: Mock executions, waterboarding or any form of simulated drowning or suffocation, sexual humiliation, rape, cultural or religious humiliation," and it goes on. And you can read for yourself and please do. And my question is: Is this the change in policy that you're referring to that caused you to resign from the American Psychological Association?
James Elmer Mitchell: This is in 2007. I resigned in 2006.
Mr. Lustberg: Okay. So if you go up above in the fourth whereas clause, it says: "Whereas in 2006, the American Psychological Association defined torture in accordance with Article 1 of the United Nations Declaration and Convention against torture and other cruel, inhuman or degrading treatment or punishment." And then it defines torture to mean: "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted," and so forth.
James Elmer Mitchell: Right. So I was not go ahead.
Mr. Lustberg: I'm sorry. So is that the is that the what occurred in 2006 that caused you to resign?
Cody Smith: Objection.
James Elmer Mitchell: No.
Mr. Lustberg: Okay. What okay. What caused you to resign in 2006?
James Elmer Mitchell: I spoke with my friends who were SERE psychologists in the military and they were complaining about the APA, and you know, I didn't like what they were telling me about what how they were being constrained.
Mr. Lustberg: Is it your view that this, what I've just read, was a change in the way the APA regarded the obligations of psychologists?
Cody Smith: Objection.
James Elmer Mitchell: I don't know. I don't know. This is the first time I'm actually reading this, so it's
Mr. Lustberg: Okay. So so you've never you've never seen this before?
James Elmer Mitchell: I haven't seen this.
Mr. Lustberg: Okay.
Cody Smith: For the record, we're referring to Exhibit No. 8.
Mr. Lustberg: 7. 8, thank you. And do you sorry. Do you know then whether the paragraphs I've read reflect a change in the APA's view of the obligations of psychologists? Just do you know whether it does or not?
James Elmer Mitchell: It looks like it. I mean, it looks like a change from the earlier stuff that I was familiar with.
Mr. Lustberg: Okay. What were you familiar with before? What's the earlier stuff that you were familiar with?
James Elmer Mitchell: The basically you tried to resolve whatever issues that you had and balance your obligation to the law, and if you were functioning as a psychologist, your obligation to the people that were involved. But they had I think they already had a prohibition against torture, which was not something we did, so...
Mr. Lustberg: And the prohibition against torture, did it define torture the same way as this?
James Elmer Mitchell: I don't know.
Mr. Lustberg: Uh-huh.
James Elmer Mitchell: If you give me the documents I'll look and see for you, but I don't recall.
Mr. Lustberg: Okay. So this defines torture as: "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted upon a person," and so forth. You can read the entire definition. It's in the fourth whereas clause.
James Elmer Mitchell: Okay.
Mr. Lustberg: Does that is it your understanding that that reflected that that was a definition that was the same or that had changed?
James Elmer Mitchell: I don't know. I don't recall. I don't recall the documents.
Mr. Lustberg: Okay. In the fourth one, two, three I'm sorry, the fifth be it resolved paragraph, it mentions a number of techniques in which you engaged, including waterboarding, stress positions, physical assault, including slapping or shaking, sensory deprivation and sleep deprivation; is that correct?
Cody Smith: Objection.
James Elmer Mitchell: Are you asking me if the paragraph includes it? The paragraph includes those items. What
Mr. Lustberg: And were those and were those actions in which you engaged as part of your as
James Elmer Mitchell: Under the direction
Cody Smith: You've got to let him finish his question.
James Elmer Mitchell: Oh, okay.
Mr. Lustberg: That's fine you can go a ahead.
James Elmer Mitchell: No, I don't want to.
Mr. Lustberg: What I was asking is are those activities in which you engaged in the course of your conduct with in working with the CIA?
Cody Smith: Objection.
James Elmer Mitchell: I yes.
Mr. Lustberg: And is it the fact that the APA was essentially saying that that sort of conduct was not appropriate that caused you to resign from the APA?
Cody Smith: Objection.
James Elmer Mitchell: I actually didn't see it in this level of detail, so no, it wasn't this.
Mr. Lustberg: Okay. It was just it was the conversation you had with somebody that you knew from the SERE school who told you that things were changing?
James Elmer Mitchell: Not just that change (sic) was changing, but that the special mission unit that he had deployed, that they were routinely deploying people with were no longer able to use psychologists and they were pulling them out and depriving the military of the use of them.
Mr. Lustberg: Uh-huh. Okay.
James Elmer Mitchell: Do you want to have a conversation?
Cody Smith: No. Put that down and wait for the next question.
James Elmer Mitchell: Okay.
Mr. Lustberg: Okay. Let's let's talk about your involvement I'm sorry. Okay. Before the just to turn to the period before the you begin the your involvement in observing and then interrogating Abu Zubaydah.
James Elmer Mitchell: That was the beginning
Mr. Lustberg: Well, you know, I don't think these dates will be particularly we'll get to dates. So first, starting in August 2001, do you recall that you had a professional services arrangement to consult with the CIA?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. And what was the purpose of that arrangement? What did you do for them? And don't discuss any particular assets or anything, just, you know, generally what did you do?
James Elmer Mitchell: They were asking me to help them revise the strategies they were using for surreptitious validation of potential assets.
Mr. Lustberg: For surreptitious validation? Does that mean just assessing assets?
James Elmer Mitchell: Without them necessarily knowing.
Mr. Lustberg: Got it. So then after 9/11, I think you mentioned earlier that you were commissioned to review the Manchester manual?
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: Is that right? Why were you chosen for that, if you know?
James Elmer Mitchell: Because of my background in resistance training.
Mr. Lustberg: Uh-huh. And in that capacity, you worked with Mr. Hubbard?
James Elmer Mitchell: I worked with Dr. Jessen.
Mr. Lustberg: Uh-huh. Did you were you approached by Mr. Hubbard to take that position?
James Elmer Mitchell: He was my contract manager.
Mr. Lustberg: Which meant he did what?
James Elmer Mitchell: Which means he was in OTS and he managed my contract, he told me what to do.
Mr. Lustberg: And that's the same Mr. Hubbard that worked for you afterwards?
James Elmer Mitchell: He eventually came to work for us, yes.
Mr. Lustberg: And you produced in December 2009, a paper entitled "Recognizing and Developing Counter- measures to Al-Qaeda Resistance to Interrogation Techniques, a Resistance Training Perspective," right?
James Elmer Mitchell: Sure.
Mr. Lustberg: Do you remember that?
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: And actually
James Elmer Mitchell: We have the document.
Mr. Lustberg: I'm about to show it to you. So if you could get that. So this is Exhibit 9. (Exhibit No. 9, Article entitled Recognizing and Developing Countermeasures to Al-Qaeda Resistance to Interrogation Techniques: A Resistance Training Perspective, was marked for identification.) Let me know when you're ready. It's quite heavily redacted.
James Elmer Mitchell: Yes.
Mr. Lustberg: Are you ready?
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: Thank you. So was this the document that you produced after having re- after having reviewed the Manchester manual?
James Elmer Mitchell: It wasn't just the Manchester manual I reviewed, but yes.
Mr. Lustberg: Okay. What else did you review?
Andrew Warden: Objection. It's described in there, other Al-Qaeda training
Cody Smith: Mr. Warden, we're having trouble hearing you down here.
Andrew Warden: Objection. We would instruct the witness not to answer beyond what's in the scope of the document, which I believe describes it as the other Al-Qaeda training.
Cody Smith: Where is it you're looking?
Mr. Lustberg: Page 1.
Cody Smith: Maybe I can help out here. Do you mean where it says: "This paper discusses the techniques and strategies for resisting interrogation described in captured Al-Qaeda training manuals and other documents"?
Andrew Warden: In fact, the Manchester manual is one of those documents. It's publicly acknowledged unclassified fact. Any further discussion of other documents that form a part of this, I instruct the witness not to answer.
Mr. Lustberg: No problem.
Cody Smith: So the record is clear: You have information, but you're protecting the Government's classified information, right?
James Elmer Mitchell: Yes, sir.
Cody Smith: Okay.
Mr. Lustberg: It what you say is that your paper suggest methods for recognizing when sophisticated resistance to interrogation technique
James Elmer Mitchell: Where are you reading?
Mr. Lustberg: The second page, the next sentence, the second sentence.
James Elmer Mitchell: I'm sorry, the second sentence.
Mr. Lustberg: Okay. So we just read the first sentence.
James Elmer Mitchell: Okay.
Mr. Lustberg: I'm sorry. I talk fast. So slow me down whenever you want. It suggests methods for recognizing when sophisticated resistance to interrogation techniques are being deployed by captured Al-Qaeda operatives with special terrorist cells, and outline strategies for developing countermeasures." Do you see that?
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: And then it says: "It does so by placing Al-Qaeda resistance to interrogation techniques within a metaphor that illustrates their operational use." What did you mean by metaphor?
James Elmer Mitchell: I meant the Circle Concept.
Mr. Lustberg: Okay. So it's the same Circle Concept that I take it we can't talk about. It says: "Our perspective for reviewing this material is based on 32 years of combined experience," by which you mean combined meaning your experience and Dr. Jessen's experience, right?
James Elmer Mitchell: Correct.
Mr. Lustberg: Uh-huh. And then it says: "We are not experts in Arab culture or the organizational structure of Al-Qaeda; however, we have found that while culture does affect perception and behavior, the cardinal dynamics of resistance to interrogation and exploitation are not culturally dependent." Is that correct?
James Elmer Mitchell: It says that there.
Mr. Lustberg: So if the FBI, including Mr. Soufan says, that cultural aspects are important to understanding how to overcome resistance, you disagree with that?
Cody Smith: Objection. You can answer.
James Elmer Mitchell: I think he's emphasizing the wrong piece of that.
Mr. Lustberg: And what
James Elmer Mitchell: I disagree I disagree with I do disagree.
Mr. Lustberg: Why do you disagree?
James Elmer Mitchell: Because what I say here is that while we found that culture does affect perception and behavior, the central dynamics of resistance to interrogation and exploitation are not culturally dependent. What that means is it's going to look different, right, they're going to act slightly different, but the big picture presentation of whether you're trying to be deceptive or whether you're trying to use any of these other resistance techniques that have been redacted from this thing, will will be the same if you can step back into the higher water and look at the way that it's playing out. It doesn't say anything about so what we're cautioning is culture does play a role, and in fact, it affects how they perceive the situation and it affects what they're going to look like. But you can still piece parse those things out that have to do with resistance training. I mean, with resistance to interrogation.
Mr. Lustberg: I'm sorry. I just need to go back over that again. I thought what you said was that culture matters, but it just doesn't matter that much or
James Elmer Mitchell: That's not what I said.
Mr. Lustberg: So explain again.
James Elmer Mitchell: I said I said what you have to do is take into account the culture of a person when you look at their behavior and look for those cardinal dynamics that apply in the context of that culture and what they're doing.
Mr. Lustberg: So isn't that very important to understanding what you would have to do to overcome resistance training?
James Elmer Mitchell: That's what we say here, just exactly what you said.
Mr. Lustberg: Okay. So okay. I thought what you said here is that we found while culture does affect perception and behavior, the cardinal dynamics are not culturally dependent?
James Elmer Mitchell: The cardinal dynamics aren't, but culture and perception does change I mean, perception and behavior does change across cultures. But let me use let me talk about a technique he used that isn't classified.
Mr. Lustberg: He
James Elmer Mitchell: Abu Zubaydah. Well, never mind, I won't do that.
Mr. Lustberg: So
James Elmer Mitchell: I'm telling you you're mischaracterizing the sentence.
Mr. Lustberg: I don't mean to mischaracterize the sentence. Explain the sentence so it's very clear for the record because
Cody Smith: Objection.
James Elmer Mitchell: The sentence speaks for itself. The meaning of the sentence is apparent in the sentence. We found that while culture does affect perception and behavior, the cardinal dynamics of resistance to interrogation and exploitation are not culturally dependent.
Mr. Lustberg: And does that sentence reflect, as you understood it, a disagreement with the way the FBI conducted
James Elmer Mitchell: I have no idea what the FBI does.
Mr. Lustberg: Weren't you present when to observe FBI interrogations of Abu Zubaydah?
James Elmer Mitchell: I was.
Mr. Lustberg: Uh-huh. And did you notice anything that would or did you speak to anybody that would indicate to you that they viewed culture as a more important factor in conducting these sorts of interrogations than you're expressing today?
James Elmer Mitchell: I don't no.
Mr. Lustberg: Okay. You think you think that your your view is that you and the FBI that the FBI would also agree with that sentence based on what your
James Elmer Mitchell: If they if they read this document and they fully understood it in the context that I mean it, and they fully understood the words, I believe they would agree that otherwise no interrogation technique you employ ever would move from culture to culture. So their technique, like catching them in a big lie, wouldn't go from culture to culture. Do you see what I mean? So while while culture does affect the perception and behavior, the cardinal dynamics of that resistance, the propensity to withhold information and want to be deceptive, that doesn't change and you can you can observe that.
Mr. Lustberg: Okay. Let me ask you about go to page so there's it's a little hard to follow, but at the bottom there are Bates numbers. You see those Bates numbers?
James Elmer Mitchell: I see them.
Mr. Lustberg: Okay. Go to the one that is #001153.
James Elmer Mitchell: Okay.
Mr. Lustberg: See where it says Countermeasures?
James Elmer Mitchell: Yes.
Mr. Lustberg: There's a sentence there that says: "Skillfully crafted counter- measures can be developed in such a way that they do not violate the Geneva Conventions."
James Elmer Mitchell: Yes.
Mr. Lustberg: What did you mean by that?
James Elmer Mitchell: I meant you can craft the countermeasures that we describe in the rest of this paper that is blank in a way that doesn't violate the Geneva Conventions.
Mr. Lustberg: Uh-huh. And so the countermeasures without obviously we don't know what they are, but the counter-measures were your view is that the countermeasures here were did not violate the Geneva Conventions?
Cody Smith: Objection. And in fairness, the witness does know what they are. They've been redacted by the United States Government
Mr. Lustberg: Right.
Cody Smith: from this document, and presumably the Government is instructing the witness not to disclose them.
Andrew Warden: There's a if there's a question about what the countermeasures are, yes.
Mr. Lustberg: Well, I'm not asking what the countermeasures are.
Cody Smith: Well, I think you may have misspoken when you said we don't know them.
Mr. Lustberg: Well, the "we" was wrong.
Cody Smith: He does know.
THE LUSTBERG: We
Cody Smith: "We" meaning me, too.
Mr. Lustberg: Yeah, I know.
Cody Smith: The witness does.
Mr. Lustberg: Okay. I understand. Without in any way describing what the countermeasures were, your view is that the countermeasures that were set forth here did not violate the Geneva Conventions; is that right?
James Elmer Mitchell: My view is that the countermeasures that were set forth could be constructed in a way that they didn't violate the Geneva Conventions.
Mr. Lustberg: Why why were you writing about the Geneva Conventions here?
James Elmer Mitchell: Because at this particular time I don't know that I can I don't know that I can I'll need to talk to the attorneys about that answer.
Mr. Lustberg: Okay.
Cody Smith: Could we just repeat the question?
Mr. Lustberg: Yeah.
Cody Smith: Could you read it back, Madam Court Reporter? (Pertinent portion of the record is read.)
James Elmer Mitchell: Because a customer of the CIA requested it.
Mr. Lustberg: Because a customer of the CIA requested that you write about the Geneva Conventions?
James Elmer Mitchell: No, this requested that this particular manual be interpreted.
Mr. Lustberg: So you had a specific
James Elmer Mitchell: I'm writing about this because I was asked to write about it.
Mr. Lustberg: And you were specifically asked to write about whether the countermeasures that are described and that are redacted violated the Geneva Conventions or not?
James Elmer Mitchell: No, I'm writing about them because I expect they will be applied in a situation where the Geneva Conventions apply.
Mr. Lustberg: Okay. So you were concerned that the Geneva Conventions would apply and you were reassuring the reader that the countermeasures that would follow did not, in fact, violate the Geneva Conventions?
James Elmer Mitchell: That's not how I would phrase that.
Mr. Lustberg: Okay. Well, how would you phrase it?
James Elmer Mitchell: I would phrase it to say that exactly what it says here. I'm not saying that they couldn't be constructed in a way that violated the Genova Conventions, because obviously you can construct anything in a way that violates the Geneva Conventions. I'm saying that with care, you could remain within the Geneva Conventions, and I think I'm encouraging them to do so.
Mr. Lustberg: Uh-huh. Exhibit 10. (Exhibit No. 10, Document, Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), Bates USA 1335 through 1493, was marked for identification.)
James Elmer Mitchell: Thank you, ma'am.
Mr. Lustberg: You have in front of you Exhibit 10, which is a report of the CIA Inspector General, dated May 7, 2004. Do you see that?
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: Have you seen this before?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. Directing your attention to page 13, paragraph 32.
Cody Smith: The page of the report 13 or the Bates page?
Mr. Lustberg: The page of the report 13, thank you. Thanks for the clarification. Did you have a chance to look at that, Dr. Mitchell?
James Elmer Mitchell: I did.
Mr. Lustberg: Thank you. So you can see that that paragraph says that: "Several months earlier, in late 2001, CIA had tasked an independent contractor psychologist who had 13 years of experience in the US Air Force's Survival, Evasion, Resistance and Escape (SERE) training program to research and correct a paper on Al-Qaeda's resistance to interrogation techniques." Is that a reference to you?
James Elmer Mitchell: Well, the full sentence is, "resisting training perspective."
Mr. Lustberg: I'm sorry. Okay.
James Elmer Mitchell: You left out part of the sentence.
Mr. Lustberg: Oh, I'm sorry, I didn't mean to. Does that refer to you, though?
James Elmer Mitchell: I believe it does?
Mr. Lustberg: It says that: "This psychologist collaborated with a DOD psychologist," that would be Dr. Jessen?
James Elmer Mitchell: I believe it is.
Mr. Lustberg: And when you add the 19 years of his experience and the 13 years of yours, that gets you to those 32 years of experience that are described in the report?
James Elmer Mitchell: I believe it does.
Mr. Lustberg: Sorry. That's how were we lawyers do it. So it says here: "Subsequently, the two psychologists developed a list of new and more aggressive EITs that they recommended for use in interrogations." Do you agree with that sentence?
James Elmer Mitchell: The sentence I agree with the sentence, but I want to comment.
Mr. Lustberg: Go ahead.
James Elmer Mitchell: The sentence is true, but the way that the two are put together here, it makes it seem as if that document is somehow linked to this request, and what the paragraph does is mischaracterize the document.
Mr. Lustberg: Which document?
James Elmer Mitchell: The recognizing the development countermeasures for Al-Qaeda resistance to interrogation techniques from a resistance training perspective. It makes it seem like subsequently the two psychologists developed a new list. While that sentence is true, the juxtaposition of those two sentences together makes it appear that the manual stuff was somehow related to the development of these well, it's not even development, it's we provided them with a list. It makes it seem like the two are related when the two, in fact, are not related.
Mr. Lustberg: Well, it sounds like to me, tell me if this is wrong, that what they're saying that it's saying is that the second list is more aggressive than what was in the original paper.
Cody Smith: Objection.
Mr. Lustberg: Is that correct?
Cody Smith: In fairness, there is no second list, right?
Mr. Lustberg: Well, yes, there is. It says well, let me ask it. Thank you, let me lay a foundation. "Subsequently, the two psychologists developed a list of new and more aggressive EITs that they recommended for use in interrogations." Did did you and Dr. Jessen develop a list of new and more aggressive EITs that they recommended for use in interrogations later?
James Elmer Mitchell: The answer to the question as asked is no. But we did provide them with a list of interrogation techniques that we did not develop.
Mr. Lustberg: You did not develop it, somebody else developed it.
James Elmer Mitchell: They were at the SERE school. They had been at the SERE school for 50 years.
Mr. Lustberg: So then this sentence that says that the two psychologists developed the list is is incorrect?
James Elmer Mitchell: Correct.
Mr. Lustberg: Because of the use of the word "developed"?
James Elmer Mitchell: We provided them with a list, we didn't develop a bunch of new EITs.
Mr. Lustberg: Okay. So what you did was you took existing EITs that were being used at the SERE school and you made a list of them?
James Elmer Mitchell: Yeah, we made a list of of the sorts of things that were done in the SERE school.
Mr. Lustberg: Uh-huh. Of the sorts of things that were done at the SERE school. All of them or some of them?
James Elmer Mitchell: I don't I don't have a comment on that. I don't think I don't think there was anything on that list that hadn't been done at the SERE school.
Mr. Lustberg: Okay. Was there were there things done at the SERE school that were not on that list, though?
James Elmer Mitchell: An infinite number of things.
Mr. Lustberg: So the bottom so the thing I'm focused on is was that list so you've said that the word developed, you have trouble with. What about that it's more aggressive than what was than what was recommended in the paper?
James Elmer Mitchell: I don't know what he means by aggressive. They were certainly more coercive.
Mr. Lustberg: Okay. So if the word was changed from aggressive to coercive you would agree with it?
James Elmer Mitchell: Yes.
Mr. Lustberg: So for this sentence to be accurate it, from your perspective, would have to say, Subsequently the two psychologists listed more coercive EITs than they recommended for use in interrogations
James Elmer Mitchell: Well, they weren't called EITs at the time.
Mr. Lustberg: Okay.
James Elmer Mitchell: All right? So this sentence would have to be completely rewritten to be accurate.
Mr. Lustberg: Okay. How would you rewrite it, sir?
James Elmer Mitchell: I would say, Subsequently the two psychologists provided a list of interrogation techniques that have been used at the SERE a more coercive list of interrogation techniques that had been used at the SERE school that eventually became EITs, and we recommended that they consider using them in interrogations. Because my recollection of that particular thing that you're talking about is we said, Here's a list of the sorts of things they do at the SERE school, and if you guys are going to be physically coercive with him, I suggest that what you do is use these techniques that have been shown over the last 50 years to not produce the kinds of things you would like to avoid, like severe pain and suffering and long-term
Mr. Lustberg: So so your testimony is that you were saying if they decided to use more coercive techniques, these are the ones that should be used?
James Elmer Mitchell: No, what I said that's not what I said.
Mr. Lustberg: Okay. Tell me what you said.
James Elmer Mitchell: What I said was you should consider using these. They my expectation was that the choice to use them or not was theirs, they should think about it, they should decide if they wanted to do it, they should do due diligence on it, all right?
Mr. Lustberg: Uh-huh.
James Elmer Mitchell: And if they chose to do it, they should do it.
Mr. Lustberg: Uh-huh. And was that what you said to them, that they should do due diligence on it?
James Elmer Mitchell: I told them that they would need to that they should check with the SERE schools to make sure I don't know if I used the word due diligence, but I told them that they needed to check with.
Mr. Lustberg: I'm sorry.
James Elmer Mitchell: No, I'm done.
Mr. Lustberg: So
Cody Smith: While there's no question pending, may I just confer with my client for a minute, please?
Mr. Lustberg: Of course. (Discussion held off the record.)
James Elmer Mitchell: I need to make a point of clarification.
Mr. Lustberg: Okay. Go ahead, sir.
Cody Smith: Hold that thought.
Mr. Lustberg: Let's wait until your lawyer is ready. Do you need more water?
James Elmer Mitchell: I'm good. I need to make a point of clarification.
Mr. Lustberg: Sure. Go ahead. You've been
Mr. Schuelke: I'm sorry
Cody Smith: We're on the record.
Mr. Lustberg: Thank you.
James Elmer Mitchell: You probably noticed in my sentence when I was talking to you that I said, recommended this list for potential use with him. Specifically I'm referring to Abu Zubaydah. In these early conversations about the more coercive SERE-related techniques were solely focused on Abu Zubaydah. There in my recollection there was no discussion of a larger program. They were discussing only Abu Zubaydah. And secondarily, I had come to believe that because of the comments that were made to me by the CIA officers, both in the field and at headquarters when we had that meeting, that they had already decided to use some form of physical coercion on Abu Zubaydah. And so my recommendation was that if you're thinking about using physical coercion on Abu Zubaydah, then you should consider using these techniques.
Mr. Lustberg: So let's just go to you mentioned a meeting.
James Elmer Mitchell: Several meetings, yes.
Mr. Lustberg: Just in what you said a minute ago, you said, I had come to believe that because of the comments that were made to me by the CIA officers, both in the field and at headquarters when we had that meeting, that they had already decided to use some form of physical coercion on Zubaydah. Is was that is that what you said?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. When you said "that meeting," what meeting were you referring to?
James Elmer Mitchell: A meeting early in July. I don't remember the exact date, but it was early in July of 2002.
Mr. Lustberg: Okay. So let's go back a little. But before we because I want to go right to to Zubaydah, which is so but before we do, just one last question. In when we discussed the what I've been calling the paper, the countermeasures paper, that was the one that talked about how there were certain countermeasures that could be taken, and if they were skillfully done, they would not violate Geneva, right?
Cody Smith: For the record, that's Exhibit 9.
Mr. Lustberg: Thank you.
James Elmer Mitchell: Yeah. What it actually says is skillfully crafted countermeasures to be developed in such a way that they do not violate the Geneva Conventions.
Mr. Lustberg: Uh-huh. And without discussing what the countermeasures were that followed, the ones that followed in the paper afterward to your mind did not violate
James Elmer Mitchell: If crafted correctly.
Mr. Lustberg: Well, we're talking about the ones that you crafted that followed that followed after that statement.
James Elmer Mitchell: I discussed principles in this paper.
Mr. Lustberg: So you didn't so this paper did not propose certain countermeasures?
James Elmer Mitchell: I think what it says is it's not possible to provide a detailed cookbook, however it will provide a flavor for how this might be accomplished. So it's been a while since I wrote this, but my recollection is we probably provided a couple of examples.
Mr. Lustberg: And the examples you provided were not ones that violated Geneva?
James Elmer Mitchell: I don't think they did, no.
Mr. Lustberg: Okay. But you've described the ones that you then told them that they should consider as more coercive, right?
James Elmer Mitchell: Yes.
Mr. Lustberg: And is it your view that those also did not violate Geneva?
James Elmer Mitchell: No, that's not my view.
Mr. Lustberg: Okay. So it's your view that they did violate Geneva?
James Elmer Mitchell: It's my view that they could have and they were going to make a determination about whether they were legal or not and whether they could be legally applied to the detainee. I abstain I'm not a legal scholar, I'm not a constitutional scholar, you know, I'm not a so I'm not making a call on whether something does or doesn't violate the Geneva Conventions. That's the bailiwick of the Office of the General Counsel of CIA. I'm relying on them completely, and the Department of Justice, when it comes to a decision about whether this is applicable to someone or not.
Mr. Lustberg: Did you have concerns that they violated Geneva?
James Elmer Mitchell: I didn't I don't know
Mr. Lustberg: I'm sorry. I'm sorry. I just want to make sure that the question is clear. I apologize for interrupting, but when I say "they," what I was referring to is the countermeasures that you said that they should consider that were more coercive. And so my question was: Did you have any concerns that those countermeasures might violate Geneva. And I'm sorry to interrupt. I just want to be
James Elmer Mitchell: Well, I had been told that the Geneva Conventions did not apply to the captured detainees.
Mr. Lustberg: Did not?
James Elmer Mitchell: Did not apply to the captured detainees by the attorneys at the CIA. And so I don't think I thought about Geneva Conventions. I was concerned that they were legal.
Mr. Lustberg: When were you told that?
James Elmer Mitchell: We were told that in those first meetings that I think it's it might have been as early as March, April, 2002 that that Geneva Conventions didn't apply to enemy combatants, illegal enemy combatants that were detained by the CIA, but they did if they were detained by the Department of Defense. That's my recollection.
Mr. Lustberg: Okay.
James Elmer Mitchell: And I know that was discussed again in those meetings in June, July.
Mr. Lustberg: Okay. So let's talk let's go back before the meetings in June and July to your first involvement with Abu Zubaydah.
Cody Smith: Let's take a five-minute stretch.
Mr. Lustberg: No worries.
Cody Smith: Stretch break and then we'll give the court reporter a couple minutes
Mr. Lustberg: Yes, I see her flexing her hands. We're off the record.
THE VIDEOGRAPHER: The time is 2:18 PM. The actual time on the camera is 2:24 PM. now off the video record. (Recess.) We're now back on the video record. The time is 3:25 PM. You may proceed.
Mr. Lustberg: Thank you.
THE VIDEOGRAPHER: This is Disk No. 3.
Mr. Lustberg: Okay. Real quick: Back to the to the Senate Select Intelligence report. If I could remember the number. Five, it's Exhibit 5. Okay. On page 30?
James Elmer Mitchell: All right.
Mr. Lustberg: I'm sorry. Okay. In the middle paragraph, Dr. Mitchell, it says: "At the end of April 2002, the Detention Site Green interrogation team provided CIA headquarters with three integration strategies."
Mr. Schuelke: Whoa, where are you?
Mr. Lustberg: Page 30.
James Elmer Mitchell: That's not what my
Mr. Lustberg: It's in the middle.
Cody Smith: Which paragraph?
Mr. Lustberg: They don't have paragraph numbers. In the middle of page 30 of 499.
Mr. Schuelke: In the beginning of the paragraph?
Mr. Lustberg: Right in the middle.
James Elmer Mitchell: Are you sure it's page 30?
Mr. Schuelke: The first full paragraph in the middle?
Mr. Lustberg: It starts with, During the month of April 2002"?
Cody Smith: Yes.
James Elmer Mitchell: Okay.
Mr. Lustberg: Okay. And then the second sentence begins at the end, that's what I was reading.
Cody Smith: Okay. Sorry.
Mr. Schuelke: Excuse me, are you looking at the sentence that begins, "At the end of April"?
Mr. Lustberg: Yup.
Mr. Schuelke: Okay.
Mr. Lustberg: "At the end of April 2002, the Detention Site Green interrogation team provided CIA headquarters with three interrogation strategies. CIA headquarters chose the most coercive interrogation option, which was proposed and supported by CIA contractor Swigert," which is you. Is that true?
James Elmer Mitchell: I don't know whether they chose the most coercive strategy or not. I mean, it is true that I'm Swigert, but I don't know what the I don't have a recollection of what the other strategies were, so I don't know
Mr. Lustberg: Real quick, please. No. 13.
Mr. Schuelke: You want him to read through the rest of that paragraph?
Mr. Lustberg: He doesn't have to.
Mr. Schuelke: It appears to me that the answer to the question is in the rest of that paragraph.
Mr. Lustberg: It isn't. The he's saying he did not recall recommending the most coercive interrogation option.
Cody Smith: That's not what he said.
James Elmer Mitchell: That's not what I said.
Mr. Lustberg: Okay. Did you?
Cody Smith: Well, that question he did answer.
Mr. Lustberg: Okay.
Cody Smith: He said he didn't know what the other ones were, so how can we know
Mr. Lustberg: I'm going to show you what the other ones were. That's what this next exhibit is.
Cody Smith: 16.
Mr. Lustberg: Uh-huh.
Cody Smith: Okay. (Exhibit No. 16, Document, Bates USA 2015 through 2018, was marked for identification.)
Mr. Lustberg: Go to the top of the second page, you'll see the three options.
Cody Smith: So can we just identify for the record what this is that the witness is looking at?
Mr. Lustberg: This is a cable.
Cody Smith: Okay. Undated?
Mr. Lustberg: May 2002.
Cody Smith: Okay. I see it now.
Mr. Lustberg: You see that?
James Elmer Mitchell: I see that paragraph, yes, sir.
Mr. Lustberg: Okay. And option 2 was you see the three options?
James Elmer Mitchell: I see three options.
Mr. Lustberg: Option 2 is: "Press AZ for threat information only and employ immediate countermeasures when he resists." Do you see that?
James Elmer Mitchell: Yes.
Mr. Lustberg: That was the option that was proposed?
James Elmer Mitchell: Those three options were proposed.
Mr. Lustberg: The option 2 was the one that was adopted?
James Elmer Mitchell: Is there a document that says that?
Mr. Lustberg: Take a look at this document. So you don't know whether that option was the option that was adopted?
James Elmer Mitchell: I've never seen this cable until the Government produced it. So I haven't spent any time
Mr. Lustberg: I understand?
James Elmer Mitchell: parsing it, so I don't I'm not
Mr. Lustberg: Right below the three options it says: "HQ/Alex concurred for {blank} for {blank} to follow option 2 and press AZ for threat-related information. Do you see that?
James Elmer Mitchell: Okay. I see that.
Mr. Lustberg: Was that your recommendation?
James Elmer Mitchell: I don't I don't have a specific recollection of recommending that, but it's not inconsistent with something I could have recommended, I just don't have a specific recollection of it.
Mr. Lustberg: Okay. After this time, and beginning in June, Abu Zubaydah was held in complete isolation for for a period of time, right?
James Elmer Mitchell: Not complete isolation.
Mr. Lustberg: From June 18 to August 4th, for 47 days, he was held in isolation? Would you agree with that?
James Elmer Mitchell: Yes.
Mr. Lustberg: And during that time, the members of the team, including you, discussed what would occur next, right?
James Elmer Mitchell: There was discussion, yes.
Mr. Lustberg: And the and you were part of the decision you were involved in the decision to
James Elmer Mitchell: I wasn't involved in the decision, I was involved in making recommendations.
Mr. Lustberg: Okay. What was what was your recommendation?
James Elmer Mitchell: I don't recall the specific recommendation.
Mr. Lustberg: You didn't you didn't recommend that he be kept in isolation for those 47 days while as a matter of keeping him off balance?
James Elmer Mitchell: I never recommended that he be kept in isolation for 47 days.
Mr. Lustberg: Did you did you recommend that he been kept in isolation?
James Elmer Mitchell: I don't recall specifically, but it's not out of the possibility.
Mr. Lustberg: As of that time, in July, you had assessed Abu Zubaydah as uncooperative; is that right?
James Elmer Mitchell: It was my opinion that he was cooperative on some things and uncooperative on others.
Mr. Lustberg: Had you did you assess him overall as being uncooperative?
James Elmer Mitchell: I assessed him as being cooperative on some things and uncooperative on others.
Mr. Lustberg: I just want to make sure under the if you look at the answer to the complaint.
James Elmer Mitchell: Sure.
Mr. Lustberg: Exhibit 15 is the answer. Wait a second, I'll get it. Paragraph 41.
James Elmer Mitchell: 41?
Mr. Lustberg: Uh-huh.
Cody Smith: Page 20.
Mr. Lustberg: Page 14 of the answer and page 20 of the complaint.
James Elmer Mitchell: All right. Okay.
Mr. Lustberg: And if you'll notice in paragraph 41 of the answer, it says: "Defendants admit that in July 2002, Mitchell and the CIA assessed Zubaydah as uncooperative."
James Elmer Mitchell: Okay.
Mr. Lustberg: Is that correct?
James Elmer Mitchell: Yes. And I don't think that's inconsistent with what I said.
Mr. Lustberg: I'm just asking whether you and the CIA assessed Zubaydah as uncooperative.
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. So in at that time, did you were you involved in several meetings at CIA headquarters to discuss the Zubaydah interrogation?
Cody Smith: Objection. At what time?
Mr. Lustberg: July 2002.
James Elmer Mitchell: I think the yes.
Mr. Lustberg: And what was the nature of those meetings?
James Elmer Mitchell: The entire interrogation team minus the OTS psychologist that stayed back there to monitor Abu Zubaydah attended several meetings at CIA headquarters where they talked about including the FBI, attended several meetings where they talked about where he was, what information they had gotten, whether or not it addressed the concerns about the potential attacks that could occur, and you know, sort of next steps of what they were willing to do. That's my recollection.
Mr. Lustberg: Okay. In your book you say that you were asked by Jose Rodriguez, which is who?
James Elmer Mitchell: At the time he was the director of CTC. He became the director of Clandestine Services.
Mr. Lustberg: You had "asked by him to accompany other senior members of the interrogation team back to the US to attend a meeting at Langley," correct?
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: "The agenda was to discuss Abu Zubaydah's interrogation thus far and what would be done to get him not only talking again, but providing more full and complete answers than he had provided before." Is that
James Elmer Mitchell: Yes.
Mr. Lustberg: Jose asked you to discuss some of the resistance to interrogation ploys that you had seen Abu Zubaydah use; is that right?
James Elmer Mitchell: Yes.
Mr. Lustberg: What were those ploys?
James Elmer Mitchell: Oh, he would go on for hours about dead people without revealing that they were dead. He would talk about endlessly about old Soviet plots plots against the Soviet Union when they were doing the Jihad. He would, as I said before, play one interrogator off of the other. He would he would he would answer in vague and misleading ways so that he talked for a great deal of time, but he provided no real information, and he would I don't remember the whole list. I mean, there was a variety of things I mentioned. I tried to be accurate in the book and...
Mr. Lustberg: Since at that point, did you recommend that more coercive measures be used against Abu Zubaydah?
James Elmer Mitchell: I don't know that I recommended it. I certainly know it was part of the discussion, and I probably weighed in on it.
Mr. Lustberg: And when you weighed in, what was your what was your recommendation?
James Elmer Mitchell: I think that was at the time when I had already come to my own mind to believe that they were going to use coercive techniques, and if they were going to use coercive techniques, they should use the ones that had been used in the SERE school.
Mr. Lustberg: And so your view was that because the SERE school techniques hadn't did not cause any damage from what you had seen, then those techniques should apply to could be applied to Abu Zubaydah as well without causing harm; is that right?
Cody Smith: Objection.
James Elmer Mitchell: No.
Mr. Lustberg: Okay. Tell me what's wrong about that.
James Elmer Mitchell: I never said they caused no damage at all.
Mr. Lustberg: Okay.
James Elmer Mitchell: I said some of them did, and you know, others could sometimes result if they were misapplied. And I don't remember the rest of this question.
Mr. Lustberg: My question was tell me what's wrong about that. But what I asked so let's break it down. You understanding that the CIA apparently intended to use coercion
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: you proposed that techniques from the SERE school be used, correct?
James Elmer Mitchell: I recommended that they consider using them.
Mr. Lustberg: That they consider using them. And that and by this time you said you weighed in and you believed that some coercive techniques should be used by them?
James Elmer Mitchell: I felt like he wasn't going to provide the information that they were looking for using rapport-based approaches.
Mr. Lustberg: Okay.
James Elmer Mitchell: At least not in the time period that we were talking about.
Mr. Lustberg: Okay.
James Elmer Mitchell: Because it's important to remember that at this particular time, although we didn't know it particularly who it was, there was a great deal of information about this upcoming threat that was going to occur. You know, there was the suggestion in the immediate aftermath of 9/11 that there was a potential for a nuclear device, and the CIA had reported in other places that they already knew that UBL had met with the Pakistanis who were passing out nuclear technology to rogue states, and the Pakistani scientist had said to UBL, the hard part is getting the fissional material, and UBL had said, What if we've already got it. And so there was this press to do whatever was legal, whatever was within the bounds to take it, as the attorneys at the time said, that gloves were off and we need to walk right up to the line of what's legal.
Mr. Lustberg: That was what the attorneys at the time said to you?
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: And but just back to what you said before, that so I asked you whether you recommended that in the event they were going that way, that they should consider they should consider the SERE school techniques.
James Elmer Mitchell: I did recommend that.
Mr. Lustberg: And I asked you, and that was because they weren't harmful and you said, well, they could be harmful?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. Now
James Elmer Mitchell: And again, at this particular time, they had not yet asked me if I would do the interrogations. I'm thinking I'm providing a list that they're going to go off and do whatever they decide to do with, all right? I'm not, you know...
Mr. Lustberg: So in any event, you did provide a list, right?
James Elmer Mitchell: By then they had already asked me the techniques I outlined before they asked me. After they asked me and they brought Dr. Jessen onboard, we actually wrote out the list of things I had suggested earlier on.
Mr. Lustberg: Uh-huh. Okay. So let's just let's just show you that list. Just make sure we're working off the same list.
James Elmer Mitchell: Sure.
Mr. Lustberg: This is Exhibit 17. (Exhibit No. 17, Document, Bates USA 1109 through 1111, was marked for identification.) Are you ready?
James Elmer Mitchell: I need to ask for guidance from the Government about something. Sorry.
Mr. Lustberg: Okay. No, no worries.
James Elmer Mitchell: I need to ask you for some guidance.
THE VIDEOGRAPHER: We're off the record?
Mr. Lustberg: Yup, please.
THE VIDEOGRAPHER: The time is 3:43 PM and we're now going off the video record. (Recess.) The time is 3:44 PM. We are now back on the video record.
Mr. Lustberg: Looking at Exhibit 17, is that the list of enhanced interrogation techniques that you provided to Mr. Rodriguez?
James Elmer Mitchell: They weren't called enhanced interrogation techniques, but yes.
Cody Smith: Could I just confer while there's no question? (Discussion held off the record.)
James Elmer Mitchell: It looks like what somebody did is cut and paste into a document that I provided them into a bigger document. This stuff was not on my document.
Mr. Lustberg: I understand. Let's take a look at the second and third page.
James Elmer Mitchell: Okay.
Mr. Lustberg: The third page ends, "Hopes this helps. Jim Mitchell." That's you, right?
James Elmer Mitchell: Right. Obviously somebody cut and pasted it, yeah.
Mr. Lustberg: Somebody cut and so what was cut and pasted?
James Elmer Mitchell: The whole I didn't have access to their system.
Mr. Lustberg: Okay.
James Elmer Mitchell: So I couldn't write a classified document on their system. I could write a classified document on a stand-alone system. Someone else had to take that document and cut and paste it into one of their documents, which is what this all these headers are.
Mr. Lustberg: On the first page?
James Elmer Mitchell: The original people who sent this out.
Mr. Lustberg: Okay. I'm just
James Elmer Mitchell: So I provided this classified document that was on a stand-alone computer, right, as a file to a person, and that person cut and pasted it into this.
Mr. Lustberg: Looking at pages 2 the second and third page.
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: And if you need to, read the whole thing from top to bottom on the second and third page. Was are those your words or have those been cut and pasted in some way other than attaching them to the first page?
James Elmer Mitchell: No, these are my words.
Mr. Lustberg: So the answer is that these one, two these 12 techniques, which we'll come back in a second what they are, those these 12 techniques are described in your words?
James Elmer Mitchell: I wrote these words, yes.
Mr. Lustberg: Right. And they were the, according to the first paragraph by the way, the first paragraph also at the top of page 2 is your words?
James Elmer Mitchell: Yes.
Mr. Lustberg: So these are the descriptions of potential physical and psychological pressures that were discussed in the July 8th, 2002 meeting; is that right?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. At the July 8, 2002 meeting, Mr. Rodriguez asked you to, quote, unquote, craft the program, right?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. Let's if you could, let's just take a quick look at your book. And pages 54 and 55, if you have it. I believe that was Exhibit 4.
Cody Smith: For the record, I think you referred to this as "his book," and I don't think the witness
Mr. Lustberg: It's the manuscript, you're right.
James Elmer Mitchell: Yes. Well, in fact, it's a work draft.
Cody Smith: A draft.
James Elmer Mitchell: You said 55 and 56?
Mr. Lustberg: 54 and 55.
James Elmer Mitchell: Okay.
Mr. Lustberg: And on page actually top of page 55.
James Elmer Mitchell: Okay.
Mr. Lustberg: The page before talks about a meeting and then it says: "A day or so later," so maybe it was a day or so later, "Rodriguez asked me if I would help put together an interrogation program using EITs."
James Elmer Mitchell: A program for Abu Zubaydah.
Mr. Lustberg: Okay. "I told him I would, thinking I would remain in the role I occupied during the first few months, pointing out resistance techniques employed by the detainees and advising on the psychological aspects of the interrogation. But that's not what he had in mind. Jose not only wanted me to help them craft the program, he wanted me to conduct the interrogations using EITs myself." Do you see that?
James Elmer Mitchell: Right.
Mr. Lustberg: Okay. Is that correct?
James Elmer Mitchell: That sentence is correct, yes.
Mr. Lustberg: Okay. And is that sentence appropriately read, that he wanted you to craft
James Elmer Mitchell: No.
Cody Smith: You've got to let him finish.
James Elmer Mitchell: Okay.
Mr. Lustberg: Well, he did not want you to help craft the program?
James Elmer Mitchell: You're inserting the word help now, but before you said wanted you to craft.
Mr. Lustberg: Help no, no, I'm using your your word is help.
James Elmer Mitchell: Sorry. When you're replying to me, you were using the words that I used. When you asked me the question, you're leaving the word help out.
Mr. Lustberg: Oh, I understand.
James Elmer Mitchell: And you're just giving me the entire onus of crafting that program. He asked me to help him craft a program for interrogating Abu Zubaydah. He was the only detainee that was part of that discussion. There was no discussion at that time about a larger program involving multiple detainees
Mr. Lustberg: No.
James Elmer Mitchell: or any of that stuff. Nor was it the case that he asked me to craft the program independently, but rather to help him craft a program.
Mr. Lustberg: Okay.
James Elmer Mitchell: And I think the word help is important.
Mr. Lustberg: Okay. When you drafted Exhibit 17, what role did Mr. Rodriguez play in drafting that?
James Elmer Mitchell: He asked me to draft this list of potential things for them to consider.
Mr. Lustberg: Okay.
James Elmer Mitchell: But this is not the program. This is a list of potential techniques for them to consider.
Mr. Lustberg: Okay. And we'll come back in a second to what parts of that become the program. But before we do, a few minutes ago you said that, at this time, you did not understand that you were going to also be doing interrogations, but in your book you say: "Jose not only wanted me to help them craft a program, he wanted me to conduct the interrogations using EITs myself."
James Elmer Mitchell: You are, again, not following what I said.
Mr. Lustberg: Okay.
James Elmer Mitchell: What I said was when I gave them the oral list that included these things, I didn't know that he wanted me to do the thing. When I gave him the written list, I did.
Mr. Lustberg: Okay. And what was the difference in time between those two things?
James Elmer Mitchell: Days.
Mr. Lustberg: Okay. Couple days, right?
James Elmer Mitchell: Yeah. I don't know how many days, but days.
Mr. Lustberg: Uh-huh. And other than so what parts of this list became the program?
Cody Smith: Objection.
James Elmer Mitchell: You know, it was
Mr. Lustberg: For Abu Zubaydah.
James Elmer Mitchell: Right. But this was not the whole program for Abu Zubaydah, so there were it makes it sounds like this is the program, but in fact, these these techniques were really only to move into a position where we could start using social influence techniques again. So it's incorrect to think that this the whole program.
Mr. Lustberg: Okay. How about the part of the program involving using enhanced interrogation techniques, was this this was your recommendation for the enhanced interrogation techniques
James Elmer Mitchell: This is my recommendation for the ones they consider.
Mr. Lustberg: Okay. And of these my question was which ones did they not adopt. It would be a shorter list than the ones that they did.
James Elmer Mitchell: I didn't think they did they didn't do mock burial. I think that's the only one I think mock burial was the only one. No, I don't recall insects either. I think they did approve insects but I think it was just mock burial. But if there's another list, I'll be happy to refresh my memory, I just
Mr. Lustberg: One one other question on this page of your manuscript.
James Elmer Mitchell: Sure.
Mr. Lustberg: And if this doesn't appear in the book or it's just part of the manuscript, you'll tell me, but it says: "I was surprised and reluctant. I knew that if I agreed, my life as I knew it would be over. I would never again be able to work as a psychologist." Why is that?
James Elmer Mitchell: Well, I think it was because at the time I thought I just couldn't see myself going back to, you know, treating mental health patients after being an interrogator. It just didn't seem like something that I was going to do. I also knew that there were people psychologists in general are quite liberal and they tend to be primarily focused on who they perceive as the patient rather than necessarily the client. And I knew that the bulk of psychologists would probably object, you know. So what I thought was, it's highly probable that I'm not going to go back to, you know, doing mental health work.
Mr. Lustberg: It wasn't because you understood that the APA or any other organization
James Elmer Mitchell: To be honest with you no. I know it's it's easy and glib to say that if someone who is the expert on Al-Qaeda just told you they're getting ready to set off a nuclear bomb, that you can say, No, no, hands-off, I don't want to participate. But that wasn't the way it was for me. The way it was for me was, Jennifer Matthews and the rest of those folks, briefed me that there was already intelligence suggesting there were people inside of New York who were smuggling explosives in and they were going to smuggle in a nuclear bomb, and I was willing to help. So if if what happened as a result of that was that I couldn't go back to doing marital therapy, I was okay with that.
Mr. Lustberg: On the next page, you're talking about you were talking about whether you had the qualifications to put together a psychologically-based interrogation program. What did you mean by psychologically-based interrogation program?
James Elmer Mitchell: Well, I don't I don't think that EITs themselves are what's necessarily going to yield the information. I think there's a lot of misinformation about EITs. But what came to be known as EITs, but the whole point of those EITs was to move him into a position where he would cooperate so that you could then use social influence stuff to get the greater details and the more information. So I think it's I think that primarily, even if you're using coercive measures, the point is to produce a psychological effect.
Mr. Lustberg: A sentence or two just a little bit later, and I'm on the bottom of page 56 of your manuscript?
James Elmer Mitchell: Sure.
Mr. Lustberg: You said that you knew that it would need to be based on what is called Pavlovian classical conditioning?
James Elmer Mitchell: Right.
Mr. Lustberg: In what regard was it were these techniques based on Pavlovian classical conditioning?
James Elmer Mitchell: Well, the techniques themselves weren't, but the use of them were, you know, particularly what you wanted to do was to condition him so that when he began to resist, he experienced an adverse of consequence, right? And when he started to cooperate, that adverse of consequence went away, which is straight Pavlovian conditioning.
Mr. Lustberg: At the top of your on page 2 of the of Exhibit 17, you talk about: "The aim of using these techniques is to dislocate the subjects expectations concerning how he's apt to be treated instill fear and despair."
James Elmer Mitchell: Right, that's the adverse consequence.
Mr. Lustberg: "The intent is to elicit compliance by motivating him to provide the required information while avoiding permanent physical harm or profound and pervasive personality change."
James Elmer Mitchell: Yes.
Mr. Lustberg: And the so what you're trying to avoid is permanent physical harm; is that right?
James Elmer Mitchell: Well, what I'm trying to do that's what I said here obviously, but you don't want to have permanent or profound, you know, mental harm, mental or physical harm.
Mr. Lustberg: Okay. What did you mean by profound and pervasive personality change?
James Elmer Mitchell: One of the things that happens if you use these techniques too much, and going this is this is the warning that I provided them about Seligman's things. If you apply one of these techniques the object it's just the same it's the same template that's used in the Army field manual today for the use of helplessness. Same template, different techniques, right? You put the person in a situation that they perceive to be helpless and then you gave them a way out of that situation by answering questions. If you don't give them that way out, then you run the risk of doing the sorts of things where you where instead of just talking about acquired helplessness, now you're talking about the experimental outcomes that Seligman talks about, all right? So what what you have to be sure you do is once the person begins to display a sense of whatever the emotion is that you're using, for example, anger. Anger would be another one that you could use, or affinity for the person would be one you could use, or fear would be one you could use. What you do is you evoke that fear or that emotion, create it somehow, the current Army field manual, you can only use psychological pressures, right, but you evoke that emotion, then you give them a way to act on the impulse that emotion creates by answering questions. So if what you're using is fear, you would give them a way to dissipate the fear by answering questions. If it's anger and you think they're angry at someone, you give them a way to get back at that person by answering questions. If it's if it's that they sense they can no longer or they're having trouble organizing and executing the course of actions that are required to if you want them to believe that it's futile to continue to resist, right, you engender a little helplessness, or a sense of helplessness, I think is the way that I've used the term in the past, and then you give them a way out of that situation by answering questions. So the thing that you're trying to do is get that seeking to get out of this situation, not the end product, not the not the profound helplessness, not the pervasive personality change. Like for example it's called in Pavlovian conditioning, condition neurosis, where a person essentially begins to look as if they're psychotic, have trouble putting thoughts together, you know, have difficulty remembering things, they become profoundly depressed, that sort of stuff. That's not what you're trying to achieve. What you're trying to achieve is that setting where they're looking to get out of that situation and you have to be sure that you don't let it go too far.
Mr. Lustberg: So we'll come back a little bit to letting it go too far, but before we do that, let's move to, before you actually implement these techniques, you have a meeting with the director of the CIA, George Tenet, correct?
James Elmer Mitchell: Correct.
Mr. Lustberg: And what was the purpose of that meeting?
James Elmer Mitchell: Well, if you want to know what the CIA thought the purpose of that meeting was for, you need to ask the CIA.
Mr. Lustberg: Well, from you let me be clear then. What happened at that meeting?
James Elmer Mitchell: Jose Rodriguez asked me to accompany him to a meeting in the director the CIA's office. In that meeting, he laid out to the director of the CIA that that they felt that it was the CIA felt it was necessary to increase the pressure. He told him that I was going to help them put together some techniques, I think he might have even told him I don't remember whether he told I was I think he must have told him I was going to do it, so it would have been after that point when he asked me to. Several days passed after he asked me to do it and Bruce Jessen was allowed to come onboard. So and then he described the techniques or had me describe the techniques, and they were waiting for his approval to go ahead before they did anything else on determining the legality or doing the other things that they were going to do to check out whether or not they wanted to go forward with it.
Mr. Lustberg: Okay. During that meeting, did you tell him that these techniques were based upon techniques that had been used in the SERE program?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. And did he ask any questions about that?
James Elmer Mitchell: He asked me what they were and I demonstrated what they were. I think I demonstrated a couple of stress positions, I demonstrated an attention grab. I think I don't recall what I don't recall what some of the other techniques were. Maybe it will refresh my memory if I look at them. Yeah, I think I showed him what a facial hold was. I'm sure they went over he clearly had been briefed before as to specifically what they were because he seemed to know.
Mr. Lustberg: Okay. Is it during the course of so let me just go back and make sure I understand. Was there a discussion in that meeting of the fact that these were SERE program techniques?
James Elmer Mitchell: I believe so. I mean, I don't know that I said it, but it was the sort of thing that Jose or somebody else would have said if I didn't.
Mr. Lustberg: Was there any discussion in the meeting about whether the use of these SERE techniques strike that. Was there any discussion about whether they could be used safely, whether the idea of this in other words, what was the relevance of the fact that they were SERE techniques, why was that important?
James Elmer Mitchell: Okay. That's two questions.
Mr. Lustberg: Okay. Either one. Take either one. What was the significance of the fact that they were SERE techniques? Why is that again, why is that an important fact?
James Elmer Mitchell: I think it's important because they had been used for years without, you know, producing significant problems.
Mr. Lustberg: Was there any discussion about whether the application of SERE techniques, which had been able to be used for many years without producing problems, might nonetheless produce problems in a different setting where the subject is not there voluntarily?
James Elmer Mitchell: I don't recall that discussion.
Mr. Lustberg: Did you did you mention that?
James Elmer Mitchell: I don't recall mentioning that.
Mr. Lustberg: How about just going back to the SERE techniques for a moment.
James Elmer Mitchell: Are we still talking about the meeting with Director Tenent?
Mr. Lustberg: If you want to it be.
James Elmer Mitchell: No, I'm just asking you, when you say go back to the SERE techniques.
Mr. Lustberg: No, I'm asking I'm asking whether I mean, I asked you whether at that meeting it was discussed that somebody who was let's be clear, right? I mean, when these are used on someone in the SERE program, that person is there voluntarily, right?
James Elmer Mitchell: In the sense that they can pull the volunteer statement and leave.
Mr. Lustberg: And they there's a safe word, right?
James Elmer Mitchell: There is a safe word, yes.
Mr. Lustberg: And for Abu Zubaydah, he was not there voluntarily, correct?
James Elmer Mitchell: He was not there voluntarily.
Mr. Lustberg: And he did not have what was the I think you said what the safe word was, wasn't it?
James Elmer Mitchell: Flight surgeon is the usual one they use.
Mr. Lustberg: Flight surgeon. Okay. Right. He didn't have that available to him?
James Elmer Mitchell: He had the ability to say, I'll answer that question, which would have had the same effect as flight surgeon.
Mr. Lustberg: Okay. So the only now, going to what occurred with respect to Abu Zubaydah, you went back and you applied these these techniques, right?
James Elmer Mitchell: Yes.
Mr. Lustberg: You did, right?
James Elmer Mitchell: Yes.
Mr. Lustberg: Uh-huh. Was it successful?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. When was it successful?
James Elmer Mitchell: It was successful when he began to provide information that the that the CIA analyst and targeters and subject matter experts judged as valuable.
Mr. Lustberg: When was that?
James Elmer Mitchell: It was as we were tapering as we would be, as we were taping it off, I think I think what happened was he began to provide bits and pieces of information, and as he did, we dialed that stuff back.
Mr. Lustberg: Uh-huh. Okay. This phase by the way, let's talk about the phases of I'm sorry. There was with Abu Zubaydah, at the beginning there's these different phases that he goes through, and this is the final phase, right, where he's where he's where you're applying these techniques. Before that there was the isolation phase, before that there was the phase where he was being questioned with lesser techniques as you described them, or lesser adverse conditions, right?
James Elmer Mitchell: You know, this whole concept of phase, I've never seen that in the cable traffic, but I don't remember at that particular point calling them phases like that. I mean, it wasn't that wasn't something that I mean, I know they called it the aggressive phase, right?
Mr. Lustberg: Right.
James Elmer Mitchell: But I don't remember it become orchestrated in the way that you seem to be implying that it was.
Mr. Lustberg: I'm I'm just asking. I'm not implying anything, just take the words as so there's this aggressive so would you agree with me that there's this new aggressive phase when you go back and apply these enhanced interrogation techniques to Abu Zubaydah?
James Elmer Mitchell: Yes, it's more aggressive.
Mr. Lustberg: And does he does he immediately respond and provide information?
James Elmer Mitchell: No.
Mr. Lustberg: Does he does he respond in within 72 hours and provide information?
James Elmer Mitchell: I think he started providing information within 72 hours.
Mr. Lustberg: And in what regard did you then dial it back? Because I'm reading these cables and it looks like for 17 days, he's being waterboarded and put in confined in a confinement box and put in stress positions and walled. Am I wrong about that?
Cody Smith: Objection.
James Elmer Mitchell: You're wrong in the sense that we don't have all of the cable traffic around that time because there came a point when Dr. Jessen and I said, We're not going to continue doing this. We don't think it's necessary to continue to waterboard Abu Zubaydah. And the CIA COB initially said, No, no, no, we're going to do this for 30 days. And then in conjunction with headquarters, they continued to order those sessions done in 30 days so for 30 days. And at some point, we brought the COS, who is the chief of station for the country, the most senior CIA person in that country, we asked him to visit the site, showed him the process and asked him if he could intercede with headquarters to get them to discontinue the use of particularly of waterboarding, but of enhanced interrogations. And eventually we ended up in a video conference with Jose Rodriguez and a bunch of folks, and prior to that, Bruce and I had said, We're not going to continue doing this, and what they said was, Well, you guys have lost your spine. I think the word that was actually used is that, You guys are pussies, there was going to be another attack in America and the blood of dead civilians are going to be on your hands. If you won't follow through with this, then we're going to send somebody out there who will. And Bruce and I were concerned that they would send somebody out there who would do the sorts of things that we had recommended that they not do in terms of frequency, intensity, that sort of stuff. And so we we administered the pours for an average of about eight seconds, which resulted in more pours, but more opportunities to breathe, and whereas our concern was if they sent somebody out from headquarters, the DOG (sic) DOJ guidance said you could do it for 20 to 40 seconds, and that would be multiple applications at 20 to 40 seconds, and we thought that was not necessary, you know, and could actually interfere with and we talked it over with the COB, and the COB Chief of Base, the person who was actually in charge, and we were working under that person's authority and control, and just told him we weren't going to continue to do this, and so eventually we had this videoconference and they said, Send your most skeptical person, who was the person that was sending those cables actually, I don't think they were cables, I think they were phone calls and emails, and somebody who has enough throw weight at the CIA, somebody who is a high enough SIS guy, that when he said, We don't need to do this anymore, he would be believed back home, and they did. So there was a period of days there where we didn't do any waterboarding, you know. And the way the authorization was written this has been a while, but the way the authorization was written, you could have waterboarded several times a day, and I think we had one waterboard session in the afternoon in the normal using I think walling or something, which we actually were able to get away from pretty quickly then. Does that answer your question?
Mr. Lustberg: I think so. I have to just unpack it a little bit. First of all, let's talk just a bit about waterboarding.
James Elmer Mitchell: Okay.
Mr. Lustberg: In your book you discuss how you actually forgot about waterboarding and then the night before you made the list, suddenly it came to you. Do you remember that?
James Elmer Mitchell: Yeah, it was the night before I don't if it was the night before we made the list, but it was the night before one of those meetings that we had. I mean, I could have the timing off in the book or
Mr. Lustberg: And
James Elmer Mitchell: But still I was thinking that I wasn't going to be the guy doing it.
Mr. Lustberg: At that time, you didn't think you would be the guy doing it. Why is that important? I mean, you're recommending waterboarding and you thought that that was I mean, you thought waterboarding was a bad was a painful thing, right?
James Elmer Mitchell: No, I thought I thought it could be done safely. I thought he would be uncomfortable. It sucks, you know. I don't know that it's painful.
Mr. Lustberg: Well, I saw an interview
James Elmer Mitchell: But it's distressing.
Mr. Lustberg: I saw an interview with you where you said it was as between somebody breaking their leg and somebody being waterboarded, most people would chose to have their leg broken. Do you remember saying that in an interview?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. Well, let's we can play that.
James Elmer Mitchell: It might have been hyperbole. I mean, if you've got an interview of me saying it, I'm willing to concede that I could have said it, but it sounds like hyperbole to me.
Mr. Lustberg: So you exaggerated when you said that
James Elmer Mitchell: I mean
Mr. Lustberg: if it's hyperbole?
James Elmer Mitchell: I mean
Mr. Lustberg: Do you want to see the clip?
Cody Smith: Yes.
James Elmer Mitchell: Okay. Show me the clip. (Video played.) Okay. Now, you're using the word painful, I'm using the word distressing.
Mr. Lustberg: Okay.
James Elmer Mitchell: The two things are not synonymous in my mind.
Mr. Lustberg: Okay. So you say that it would be less distressing to break your leg than to be waterboarded?
James Elmer Mitchell: Well, I think I said most people.
Mr. Lustberg: All right. Let's play it again. (Video played.)
James Elmer Mitchell: Okay. Right. I've broken bones. For me it was not I didn't like being waterboarded. It wasn't particularly painful, but it was distressing.
Mr. Lustberg: It's more distressing than breaking your leg you're saying?
James Elmer Mitchell: That was hyperbole.
Mr. Lustberg: Okay. I want to I want to take a look at page 88 of your manuscript, please.
James Elmer Mitchell: Sure.
Mr. Lustberg: And the part I want to ask about is right at the top where it says on page 88.
James Elmer Mitchell: Okay.
Mr. Lustberg: I'm sorry, did I not give you the page? Page 88. "After about 72 hours," this is when you come back and begin the this more aggressive phase, "after about 72 hours, Abu Zubaydah gradually started answering our questions, but he did more than that," and you go on to say, "Over time he provided information."
James Elmer Mitchell: Right.
Mr. Lustberg: Why was he waterboarded after he started cooperating?
James Elmer Mitchell: You'd have to ask the CIA why they wanted to continue doing that. We Bruce and I recommended to them that they dial that back, that they not do that.
Mr. Lustberg: I could be wrong, but I thought I read in your book that you there was only one time that you waterboarded him that you didn't want to, that is to say, there was only one time when you said you would waterboard him one more time and am I right about that?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay.
James Elmer Mitchell: You're wrong about how you characterized it.
Mr. Lustberg: Okay. Just tell you know, you tell it like it is then.
James Elmer Mitchell: Well, we didn't think it was necessary after about 72 hours. We knew he was still withholding information, but we thought social influence stuff and walling or something like that would probably get it. Or at least that's what we surmised. I don't know you can't say you knew, but you know, we surmised that. The CIA made it clear that they were going to continue waterboarding, and if we didn't do it, somebody else was.
Mr. Lustberg: Okay. So it's your testimony that after 72 hours, you recommended ceasing the waterboarding; is that correct?
James Elmer Mitchell: Yeah. Well, I don't know if we recommended it right at 72 hours, but it was in that first few days after he began to cooperate.
Mr. Lustberg: And would you agree that he was waterboarded for 17 days?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. How long was he waterboarded for?
James Elmer Mitchell: I'd have to see the cable traffic to refresh my my memory, but there were several days there when they gave us permission to stop while they were waiting for that team to come out, right, and then that's when Bruce and I said, We will waterboard him one more time for you to watch it, but we're not going to do it again.
Mr. Lustberg: So you agreed to waterboard him one more time that they could watch, right?
James Elmer Mitchell: So they could do their assessment of whether or not they felt it was necessary.
Mr. Lustberg: And you wanted them to be actually present in the room for that, right?
James Elmer Mitchell: Yes.
Mr. Lustberg: And why is that?
James Elmer Mitchell: Because I didn't want them watching it on TV, I wanted them to see what it was really like, you know? I wanted them to hear the noises that he made, and you know, see the water, and you know, see the see the whole incident. Because in my mind it's easy for the people who have power and make those decisions, to make those decisions when they're at arm's length. It's a lot harder for them to do it when they're right there with you.
Mr. Lustberg: Because being present, you can see how much worse it is than just looking at it on a video, right, on a video screen?
James Elmer Mitchell: Well, yes, how much more how much worse it is in terms of distress, yes.
Mr. Lustberg: Uh-huh. Uh-huh.
James Elmer Mitchell: I don't think you're getting enough notes.
Mr. Lustberg: Yeah, I'm with you 100 percent. Did you did you say that did you ever describe waterboarding as being, quote, unquote, horrific?
James Elmer Mitchell: Probably. I don't specifically remember, but I I found it distressing, you know?
Mr. Lustberg: In your book you describe it as
James Elmer Mitchell: In fact, I might have said that to an attorney that wanted me to waterboard her.
Mr. Lustberg: Maybe. It seems like you've enjoyed waterboarding attorneys.
James Elmer Mitchell: Well, it's more of a prank than anything else. It's not that I enjoyed it, it's that it's that they asked me to do it, and it seems like a you know, it seemed
Mr. Lustberg: Yeah. I saw in your book where you said, you know, "Waterboarding two attorneys in one day is a good start."
James Elmer Mitchell: I did say that.
Mr. Lustberg: In your book you say that waterboarding is, quote, Scary and uncomfortable but not painful. Do you agree with that?
James Elmer Mitchell: I don't think I didn't I experienced it myself. I didn't find it painful in the sense of pain.
Mr. Lustberg: In the in the cables, Abu Zubaydah cries and whimpers and eventually completely capitulates to waterboarding. If it's just scary and uncomfortable but not painful, why is he crying?
Cody Smith: Objection.
James Elmer Mitchell: He I know that he taught resistance training because he told me, and I know some of the resistance training and strategies that he told me, and I know what I would do if I were in his situation and I would be whining and crying and moping. Some of them I think were real, some of them were fake. But you know what I hear when someone is making a noise like that? I hear a clear airway, which is what we're supposed to really monitor, because what, mattered is whether or not he can breathe in the in the moment. Do you know what I mean? Long-term there were some things that matter. But we've got a psychologist and a physician and other people out there monitoring these things to be sure that they don't go too far. And so it's clear to me that I really wanted those folks to I wanted them to hear what was going on in the room.
Mr. Lustberg: I mean, my question had to do with whether so your testimony is that when he's whimpering and crying that way, that that's a resistance technique, at least some of the time?
James Elmer Mitchell: Some of the time, yes; some of the time not.
Mr. Lustberg: Uh-huh. Okay. And how about when he would vomit after waterboarding, was that also feigned?
James Elmer Mitchell: He only vomited one time.
Mr. Lustberg: Was it feigned?
James Elmer Mitchell: Oh, no. The physicians had said that you had to give him 12 hours between the time that he ate his beans and rice and when you waterboarded him, this was early in the process, and the COB waited 12 hours and then we waterboarded him and he threw up the beans and rice.
Mr. Lustberg: I want to go back one more second to the SERE program and its application here. And let me show you Exhibit This is number what, 18?
THE REPORTER: 18, yup. (Exhibit No. 18, Document, Bates USA 1770 through 1172, was marked for identification.)
Mr. Lustberg: This is a cable from July 2002. You can see that, right?
James Elmer Mitchell: I can see that it's a cable from July 2002, yes.
Mr. Lustberg: I want to direct your attention to the bottom of the page.
James Elmer Mitchell: That page.
Mr. Lustberg: Uh-huh. And here's and it says this: "We are a nation of laws and we do not wish to parse words." By the way, have you ever seen this before?
James Elmer Mitchell: No.
Mr. Lustberg: You've never seen it before this minute?
James Elmer Mitchell: No, I've seen it when the Government provided it, but I didn't see it in real time when it was written.
Mr. Lustberg: Okay. "A bottom line in considering the new measure" "new measures proposed for use at {blank}, is that subject is being held in solitary confinement against his will, without legal representation as an enemy of our country, our society and our people. Therefore, while the techniques described in HQ's meetings and below are administered to student volunteers in the US in a harmless way with no measurable impact on the psyche of the volunteer, we do not believe we can assure the same here for a man forced through these processes and who will be made to believe this is the future course of the remainder of his life. "Station {blank} COB and {blank} personnel will make every effort possible to ensure that subject is not permanently physically or mentally harmed, but we should not say at the outset of this process that there is no risk." Do you agree with that?
James Elmer Mitchell: I don't agree or disagree with it. It's what the person wrote. I mean, it's what they wrote and it speaks for itself.
Mr. Lustberg: Okay.
James Elmer Mitchell: I agree
Mr. Lustberg: I'm sorry.
James Elmer Mitchell: No, I'm done.
Mr. Lustberg: Okay. Was this thought ever communicated to you by anybody, that the SERE program that conditions of the SERE program are so different than the conditions that Abu Zubaydah was under that the fact that this was potentially harmless or that this I guess you said it could be harmful, that it was potentially harmless in the SERE in the context of the SERE program might not mean that it would be harmless in the in the context of somebody like Abu Zubaydah?
James Elmer Mitchell: I'm trying to recall and I don't recall that conversation.
Mr. Lustberg: So you don't recall anybody at any time ever distinguishing between the application of these techniques in the SERE context in contrast to the application of these techniques to somebody who was there involuntarily and did not have a safe word, for example?
James Elmer Mitchell: Well, the first time you asked the question, you asked me about this paragraph. This paragraph is written in a way that is the connotations of the words he used, you know, makes it seem to me like what he's trying to or she I think it's a he I think that wrote this.
Mr. Lustberg: Do you know who wrote this?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. I don't know if I can ask who wrote this. Can I ask who wrote this?
James Elmer Mitchell: You can ask, but I can't answer.
Andrew Warden: You can ask, but I'll give an instruction.
Mr. Lustberg: So I'm asking
Andrew Warden: You are asking?
Mr. Lustberg: Who wrote it? Do you know who wrote it?
James Elmer Mitchell: Yes.
Andrew Warden: We instruct the witness not to answer that question on the grounds of classified information and privilege.
Mr. Lustberg: I understand.
Cody Smith: Just as a point of clarification, that was a yes or no question. Right? Do you know who wrote it.
Andrew Warden: I thought he answered yes. I thought that was what the question was.
Cody Smith: Did you answer yes?
James Elmer Mitchell: Yes.
Cody Smith: Okay.
Mr. Lustberg: Right. But the next question was who, and that's what Andrew is objecting to.
Cody Smith: Okay. Got it.
Mr. Lustberg: Take a look at paragraph 5 on page 2 of this document.
James Elmer Mitchell: Okay.
Mr. Lustberg: It says: "Effective use of the waterboard overwhelms the individual's ability to resist." Do you believe that's true?
James Elmer Mitchell: It can. I mean, I think prior to KSM, I would have thought with near certainty; after KSM, I don't know.
Mr. Lustberg: In the middle of that paragraph, it says: "IC SERE psychologists are not aware of any specific statistics regarding long-term mental health outcomes or consequences from use of waterboarding in training." Do you see that?
James Elmer Mitchell: Yes.
Mr. Lustberg: IC SERE psychologists in these cables typically describes you and Dr. Jessen?
James Elmer Mitchell: Yes.
Mr. Lustberg: Do you remember being asked whether you were aware of whether there were any significant long-term mental health consequences of waterboarding?
James Elmer Mitchell: I don't remember specifically being asked, but it seems like the sort of topic someone would have asked me about. I don't remember a specific instance, but it seems reasonable that they would have asked me if I knew of any.
Mr. Lustberg: And if they had asked you if you knew of any, what would you have answered?
James Elmer Mitchell: That I didn't know specifically what it says here, any specific any long-term mental health outcomes or consequences from the use of the waterboarding in training. Waterboarding was one of those things I asked about when we were doing the when we were doing the study looking at injury rates. So I asked about the use of water and waterboarding specifically and was told both by the Navy and by JPRA that they didn't have any long-term statistics suggesting there were long-term mental health outcomes that were associated with it.
Mr. Lustberg: And on the next page, it says: "The JPRA SERE psychologists" I'm sorry, going a sentence down. It says: "Speaking directly to the issue of inducing severe mental pain or suffering, any physical pressure applied to extremes can cause severe mental pain or suffering, including the use of loud music, sleep deprivation, controlling darkness and light, slapping, walling, or the use of stress positions taken to extreme can have the same outcome." Do you agree with that?
James Elmer Mitchell: I agree with the next sentence, too.
Mr. Lustberg: That "The safety of any technique lies primarily in how it is applied and monitored"
James Elmer Mitchell: Yes, sir.
Mr. Lustberg: is that right? Okay. Bear with me for one moment. Can we just take a quick break?
Cody Smith: Sure.
THE VIDEOGRAPHER: We are now off the video record. The time is 4:33. PM. We are now off the record. This ends Disk No. 3. (Recess.) We are now back on the video record. The time is 5:42 PM. This begins Disk No. 4.
Mr. Lustberg: Disk No. 4. Okay. So we talked a little bit about just before the break about the to establish, ba, ba, ba, ba, I just wanted to get the exact quote. But we were talking about the fact that there was this discussion about studying potentially lesser, sort of lesser techniques, right?
James Elmer Mitchell: Yeah. What they yes.
Mr. Lustberg: And what that means is an adjustment so that it's less than the EITs that had been utilized before, right?
James Elmer Mitchell: Less physical coercion. Less coercion, yeah.
Mr. Lustberg: Right. So it's an adjustment in whatever the program was to something that included, for example, you thought that the most important techniques were walling and sleep deprivation?
James Elmer Mitchell: This didn't address that, this was no EITs at all.
Mr. Lustberg: So okay. So this was this was a change in that program to go to no EITs?
James Elmer Mitchell: That's what the person who wrote this was interested in.
Mr. Lustberg: Uh-huh. And just to go back for a second, did you was there were there discussions about just reducing the EITs so that it was only those two, what you viewed as the essential EITs of sleep deprivation and walling?
James Elmer Mitchell: I remember in, I think 2005, I think it was the Hamdan decision, I can't remember exactly when, there was a discussion about reducing EITs and changing to a different the same EITs, but a different selection of those EITs. And and I remember they called all the interrogators back to the headquarters and they had us sit for three days or two days, or whatever it was, and come up with a list of recommendations, and it was you know, it was pretty unanimous that the only ones we thought we really needed was, you know, walling and sleep deprivation.
Mr. Lustberg: And why those?
James Elmer Mitchell: Because they were the easiest to use. By easy that's the wrong word. In order to do the initial conditioning, you need a technique that starts and stops and that you can control the start and stop, right? So if you're walling a person, you can take your hands completely off the person any time they make any kind of movement toward cooperating. So it's easier to condition the offering side of this thing where you want to reward them for talking to you, right? It's easier to condition that. Whereas if you're trying to use something like waterboarding, you know, you can stop waterboarding the person, but the person is still on the waterboard. So it's much more difficult to logistically orchestrate that and to adjust the timing. Because it's always a timing issue.
Mr. Lustberg: Okay. I believe I've seen where you have talked about the fact that the way these techniques were supposed to work, though, was that you were not supposed to be trying to get answers right then and there while you're going through the process, the idea is to to employ whatever the techniques were, provide a bridge question and then try to come back later before you applied additional techniques to see if you could if they were going to give you the question to the bridge question. Did I get that right more or less?
James Elmer Mitchell: I think you got that part of the discussion almost correct.
Mr. Lustberg: Okay. So go ahead and correct me. I want to get it perfect.
James Elmer Mitchell: Okay. So we had of all these subject matter experts who gave us intelligence reports, and we actually asked them the questions they asked, and if they provided information, then we would stop using the EITs, and they would take them any time, right, but my thinking on the subject was that, much like with a dental phobia, the time that they're going to be most motivated to get out of it is before the next time, and that's when they're going to be most clear headed as well. And so what we would do is to alert them to be particularly cognizant during that period because we think that's where the person is going to be most likely looking for a way to provide enough of an answer that we don't go onto the EITs.
Mr. Lustberg: And again, why is why was walling considered one of the two that you thought was the most optimal when you in terms of reducing the EITs?
James Elmer Mitchell: Because then what you could do is you could have that in a much you could compress the time scale so that you could ask them a question, and if they started to lie to you or started to answer in some vague way, you could ask them, Is this thing that you're telling me going to answer this question, in which they would say no, right? And then you could wall them and start over. You bounce them off the wall two, maybe three times, and then you can take your hands completely off of them and start over. And you've got like mini little mini sessions of the larger thing because they're not going to want the next walling, but you can still work it's a lot harder to do with some of the other techniques.
Mr. Lustberg: And why is why was walling sufficiently uncomfortable or
James Elmer Mitchell: You know, I've been walled hundreds, maybe thousands of times, because the only way that I can be sure that the people who we were training at the SERE schools or the people that the interrogators back after, I don't know, 2004 or whenever it was that we started doing the training for the CIA, knew when they were doing it correctly was to let them do the techniques on me, right? Because I'm a pretty good judge of what it's like to be walled, and...
Mr. Lustberg: Okay. So my question was: So why is it why is it effective?
James Elmer Mitchell: Oh, it's discombobulating. It's not painful. My guess would be that some of the people sitting here have been walled. It stirs up your inner ears, and it's like being on one of those whirly gigs or something, you know, you move around quite a bit, and you know, it's in fact, if it's painful, you're doing it wrong. (Exhibit No. 24, Independent Review Relating to APA Ethics Guidelines, National Security Interrogations, and Torture, was marked for identification.)
Mr. Lustberg: Take a look. Have you seen this this report before?
James Elmer Mitchell: I have looked at the report. I haven't read this particular page.
Mr. Lustberg: Okay. So the question the sentence I want to focus on is sort of halfway, a little bit more, down the first paragraph.
James Elmer Mitchell: Sure.
Mr. Lustberg: Where it says: "Mitchell said that he and Jessen never intended to study the effectiveness of the techniques themselves, but rather that their role was 'to find and pay an independent researcher not involved with the program to do the work.'" Do you recall discussing that with anybody?
James Elmer Mitchell: I recall saying that sentence.
Mr. Lustberg: You do?
James Elmer Mitchell: The way this paragraph is written, it conflates a lot of times and it conflates a lot of other things, so the paragraph itself is is misleading.
Mr. Lustberg: How is it misleading?
James Elmer Mitchell: Well, "In July 2002, Mitchell joined Jessen who had recently retired and other former GI" "JPRA to form Mitchell Jessen and Associates." Mitchell Jessen and Associates wasn't formed in 2002. The data just is completely wrong. "The CIA soon contracted the newly formed company to support CIA's fledgling program." Again, not true for 2002. "Mitchell's role under the contract initially included conducting interrogations and assessing the detainees' fitness for interrogations and assessing the effectiveness of particular interrogation techniques." I I know that they asked me for my opinions in 2002 to around 2004, '5, whenever MJA came onboard, and I know there's even some discussion in these things of doing that.
Mr. Lustberg: Of doing what?
James Elmer Mitchell: Assessing the effectiveness of the technique, but I don't believe that was ever done. I have no recollection of doing that. If you've got a document that I wrote assessing the techniques, I would appreciate the opportunity to refresh my memory because I have no recollection of ever writing a document that or even, when people ask me my opinion, I provide it, but I don't recall ever writing it.
Mr. Lustberg: Fair enough. I mean, what it says here is that you said that you and Jessen never intended to study the effectiveness of the techniques themselves, but rather that your work was to find and pay an independent researcher.
James Elmer Mitchell: This was after 2005 when the CIA in our contract included a manpower slot, because we were basically a manpower company, right? We provided people to the CIA that were embedded in their program under the direct supervision and control of the CIA officers, not under our control, and they had said they wanted an independent researcher to look at these to look at this program. So they created a slot in the contract for it, but they never chose to exercise that. Because what they get to do is they say, We want this slot filled and then they put money against that slot and they and we fill that slot and that person goes off and works with the CIA. But we're just a manpower place like Booz Allen, or somebody else in that regard, right? So when this sentence is taken out of context and inserted in a very poorly written paragraph that doesn't reflect what actually happened, so what I said to that person was, we weren't we weren't the ones that were intending to do the independent, whatever this says here.
Mr. Lustberg: Independent research.
James Elmer Mitchell: Never intended to study right. That wasn't our role in the contract. They weren't asking me and Bruce to do that. They were saying, if we chose to execute this particular manpower requirement, because you have the contract, we want you to go find a person. That's what this refers to.
Mr. Lustberg: Uh-huh. And what the person was going to do was to study the effectiveness of the techniques, though?
James Elmer Mitchell: The person was going to do whatever the CIA told them to do. No study program had been set up, so I don't know what the details are. If you want to know what they think he should do, you should ask the CIA.
Mr. Lustberg: I understand. But you had to find the person.
James Elmer Mitchell: Right.
Mr. Lustberg: Find and pay the person, and you were and so to that extent, you had to have at least some understanding that as to what they were going to do and
James Elmer Mitchell: No.
Mr. Lustberg: No? You had no idea. You were going to you were going to
James Elmer Mitchell: What we had to have was an understanding of what the requirements were, so the person had to be well-versed in statistics, for example, they had to be well-versed in doing you know, if a person researches the restaurants here in around One Logan Square, they're not experimenting on the restaurants, they're looking to see what's there. So the person had to have the capacity to do a literature review. The person had to have the capacity to take in a lot of different pieces of information and put them into whatever categories they had. What they would do when they chose to execute something is they would come to us and say, We need a body to do this thing, this is how we imagine this will happen. That's different than putting a slot in the contract, because once they decided that they wanted that person, they would tell us what specifically that person was to do.
Mr. Lustberg: Okay. But again, what the person was to do, as far as you understood, was to study the effectiveness of the techniques themselves, right? And so in order to do that, they had to be capable of doing a literature review, they had to be capable of doing a statistical analysis.
James Elmer Mitchell: In my mind, they also had to have access to their databases.
Mr. Lustberg: Uh-huh. Okay. And but and the purpose of all that, as you understood it, the person you were looking for would be somebody who would have the necessary
James Elmer Mitchell: We weren't looking for someone.
Mr. Lustberg: Pardon me?
James Elmer Mitchell: We weren't looking for someone
Mr. Lustberg: Well
James Elmer Mitchell: Because they never executed the that part of the contract.
Mr. Lustberg: Okay. You okay. So it never happened, but what you're saying this never this part of the contract never was fulfilled?
James Elmer Mitchell: Exactly.
Mr. Lustberg: Okay. But that the role that you were looking for was to find and pay an independent researcher to do the work, which was to study the effectiveness of the techniques, at least that's what you said to this person at that time?
James Elmer Mitchell: Well, I think there's a you have the contract. I think there's a manpower slot in the contract. Whatever whatever the contract says is what I was trying to convey. So rather than me fumbling around on what I remember now, the more simple thing to do is just look at the contract and see what's there. Because they released that entire thing with several redactions, so you can actually look and see what they were
Mr. Lustberg: That entire?
James Elmer Mitchell: The entire, was it a statement of work? I think it might have been a statement of work.
Mr. Lustberg: Oh, I see. Uh-huh.
James Elmer Mitchell: Or a technical proposal, or it might have been statement of work and then the technical proposal, but there was a series of documents that they redacted and released that explained specifically what they were asking us to do. So like I said, my recollection 15 years not 15 years, nine years later is probably not as good as the original contract.
Mr. Lustberg: Okay. So I want to go back to Exhibit 11.
James Elmer Mitchell: Okay. I've got to find it in this pile. Are we can I put away
Mr. Lustberg: Yeah.
James Elmer Mitchell: this exhibit? I don't even know what Exhibit 11 is.
Mr. Lustberg: Okay. So have you found that yet? Because if not
James Elmer Mitchell: I have it.
Mr. Lustberg: Okay. Great. This is really going to test your eyesight. This is the last page.
James Elmer Mitchell: Okay.
Mr. Lustberg: Okay. You see that little chart with the Xs in it?
James Elmer Mitchell: Yes.
Mr. Lustberg: Have you seen anything like this before, by the way?
James Elmer Mitchell: No.
Mr. Lustberg: This is you've never seen any kind of chart like
James Elmer Mitchell: Well, I've seen it when they released it, but I haven't seen it before this.
Mr. Lustberg: Okay. So you can see that those are two of the plaintiffs in this case?
James Elmer Mitchell: Yes.
Mr. Lustberg: And you can
James Elmer Mitchell: The one guy that was involved in Al-Qaeda in East Africa and participated in the blowing up of the embassies, and the other guy that ran a terrorist training camp in Afghanistan. I see both of those guys on here.
Mr. Lustberg: Uh-huh. And you can see the EITs that were that were utilized with them, right?
James Elmer Mitchell: I see the Xs in these little boxes, yes.
Mr. Lustberg: Right. So but these if you go across the list of EITs, that's basically your list, right?
Cody Smith: Objection.
James Elmer Mitchell: I don't think this is my list. This is a list that includes the techniques that I recommended to them, but this is someone else's list.
Mr. Lustberg: Well, let's go through it. I mean, isn't isn't each of these items the same items that were on your list?
James Elmer Mitchell: No.
Mr. Lustberg: What's not what's different than what's on I mean, okay. Sleep deprivation, that was on your list, right?
James Elmer Mitchell: Correct.
Mr. Schuelke: What's the first one?
Mr. Lustberg: It says destination.
James Elmer Mitchell: Destination.
Mr. Schuelke: See, my eyesight failed your test.
Mr. Lustberg: I hear you. It says then the next one is nudity. That was on the list, right?
James Elmer Mitchell: Correct.
Mr. Lustberg: Initially? Next one is dietary. We talked about that. That was on the list?
James Elmer Mitchell: Correct.
Mr. Lustberg: Facial hold, that was on the list?
James Elmer Mitchell: Yes.
Mr. Lustberg: Attention grasp, that was on the list?
James Elmer Mitchell: Yes.
Mr. Lustberg: Abdominal slap, that was on the list?
James Elmer Mitchell: I'd have to look at the list, but okay.
Mr. Lustberg: Well, I mean, you don't you're not sure whether that was these were on the list?
James Elmer Mitchell: I think abdominal slap was on the list, yeah.
Mr. Lustberg: Facial slap, that was on the list. We talked about that before.
James Elmer Mitchell: Right.
Mr. Lustberg: Stress positions, that was on the list?
James Elmer Mitchell: Yes.
Mr. Lustberg: Cramped confinement, that was on the list?
James Elmer Mitchell: Yes.
Mr. Lustberg: Water dousing, that was on the list?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. Water dousing was not on the list?
James Elmer Mitchell: No.
Mr. Lustberg: Are you sure?
James Elmer Mitchell: Absolutely.
Mr. Lustberg: What walling, that was on the list?
James Elmer Mitchell: Yes.
Mr. Lustberg: And waterboard, that was on the list?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. And and the Xs show which of those enhanced interrogation techniques were used with each of these two two men, right?
Cody Smith: Objection.
James Elmer Mitchell: Yes.
Mr. Lustberg: So Did you get the answer? Okay. Thank you. And you're saying that with the with the exception of water dousing, all of these other things were on your list, right?
James Elmer Mitchell: They were on the list that we provided.
Mr. Lustberg: That's what I mean. When I say your list, you know that I'm referring to the list that you provided to the
James Elmer Mitchell: I actually don't know what you're referring to.
Mr. Lustberg: Okay. Well okay. I want to just a couple other areas we want to cover and then we'll be we'll be done. You mentioned earlier in our conversation about a document that you was taken from your home and that you wanted to provide but you haven't been able to, right?
James Elmer Mitchell: There's several of those documents.
Mr. Lustberg: Uh-huh. The documents, as a general matter, don't nothing specific because we haven't seen them, what types of documents did you have at your home?
James Elmer Mitchell: I had documents that were unclassified if not associated with the program, but might be classified if they were.
Mr. Lustberg: And what and how could you have had documents that might be classified in your home?
James Elmer Mitchell: Well, they're unclassified because I put them together from open open source material, and they didn't mention the CIA, so by themselves, a non-coercive interrogation manual wouldn't be classified. But if you say, this is the interrogation manual that was provided the CIA, then they get to choose whether or not it's classified.
Mr. Lustberg: Uh-huh. Now, when did they when did they come and get these from your home?
James Elmer Mitchell: Months ago. It's been weeks.
Mr. Lustberg: Mid-October?
Mr. Schuelke: Two months.
James Elmer Mitchell: Is it two months? Yeah.
Mr. Lustberg: Uh-huh. And did you have any concern that you were that you had materials that might be classified in your home?
James Elmer Mitchell: No, because they weren't associated with the CIA at the time they were there.
Mr. Lustberg: Okay. And why were they not associated with the CIA?
James Elmer Mitchell: Because they don't say CIA and I had a life before and after.
Mr. Lustberg: Okay.
James Elmer Mitchell: So there's no if I write an interrogation manual and you find it at my house, if it doesn't isn't associated and I use open source material, then...
Mr. Lustberg: Uh-huh. Let's let's just talk about some of the companies that we talked about before.
James Elmer Mitchell: Sure.
Mr. Lustberg: So let's just just go back. I'm I'm not recalling what the first company was after you left before so just there was Mind Science, there was What If, and there was one before. What? Knowledge Works. Thank you. Do you have any documents from Knowledge Works?
James Elmer Mitchell: No.
Mr. Lustberg: Why not?
James Elmer Mitchell: Because I'm not required to keep them and I don't keep those things.
Mr. Lustberg: Uh-huh. There were documents that had been destroyed?
James Elmer Mitchell: No, I think they've been destroyed. I mean, that company existed in, what, 2001, through the time that I left North Carolina. So I probably would have got rid of those documents then around then when the company was shut down and there was no need to keep them.
Mr. Lustberg: Uh-huh. What kind of documents were they that you didn't keep?
James Elmer Mitchell: Well, they're the ones you can find online if you go to North Carolina and go to the Division of Corporations, or whatever they call it. The only documents I had were the organizing documents, and then the I think you're annually required or if there's a name change, or whatever the you know, whatever the documents are that set the company up.
Mr. Lustberg: Uh-huh. Is that the same with What If and Mind Science?
James Elmer Mitchell: Yes.
Mr. Lustberg: So for each of those, there there are no documents that you have anymore; is that right?
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: And all that there ever were, were the corporate founding documents and whatever whatever other filings you had to do?
James Elmer Mitchell: They're my they're my individual, independent LLCs that I used, so yeah. There's no reason for me to hold a shareholder meeting because it's just me.
Mr. Lustberg: Right. What about the correspondence, reports, whatever the business was. There was none of that?
James Elmer Mitchell: No, I don't have any of that, didn't have any.
Mr. Lustberg: Uh-huh. And it's surprising that we have not received any emails. Do you not email?
James Elmer Mitchell: You should have received a lot of emails from me.
Mr. Lustberg: Okay. Well, leaving aside stuff that's undergoing review by the Government, what what emails would there be that would be would have been responsive to our subpoenas?
James Elmer Mitchell: You guys requested emails from the publisher to me, all right? You requested any emails I had I think in and around my book, you know.
Mr. Lustberg: Right.
James Elmer Mitchell: I mean, I'd have to look at the list but oh, I think you also requested that email.
Mr. Lustberg: This email?
James Elmer Mitchell: Well, from them. But I didn't have that email.
Mr. Lustberg: Right.
James Elmer Mitchell: Because here's the way I handle emails: I keep them as long as I need them and then I delete them, you know?
Mr. Lustberg: Okay. The only emails we have are the ones related to the book. You're saying that there are other emails that existed, but that you've deleted?
James Elmer Mitchell: Before your
Mr. Lustberg: Before the lawsuit?
James Elmer Mitchell: Yeah.
Mr. Lustberg: Uh-huh. And you haven't deleted any emails since the lawsuit?
James Elmer Mitchell: None that are responsive.
Mr. Lustberg: Uh-huh. And with regard to emails from this time period
James Elmer Mitchell: 2002?
Mr. Lustberg: Yeah. Would they even exist?
James Elmer Mitchell: I'm sure they exist in the ether somewhere, but they don't exist on my they don't the thing that may be difficult for you to understand is that when you're in a clandestine program, you don't send a lot of emails. You know, you don't say, you know, I'm in this foreign company at this black site and this is what I'm doing. You don't have those kind of emails. So you know, you don't have that life that most corporations have, you know, where you you just don't have it.
Mr. Lustberg: Uh-huh. Were you able to email when you were when you were on location?
James Elmer Mitchell: No, not usually.
Mr. Lustberg: Uh-huh. Sometimes?
James Elmer Mitchell: Rarely, but occasionally.
Mr. Lustberg: Uh-huh. And when you received our document requests, did you work with your attorneys don't give me any communications between them to respond, or did you look for documents yourself first, and who determined what was responsive to our subpoena?
Cody Smith: There's a lot of questions in there.
Mr. Lustberg: Yeah, yeah. Do the best you can, we're late.
Cody Smith: How about we pick one and he answers that?
Mr. Lustberg: That will do.
James Elmer Mitchell: I don't know what the question is now.
Mr. Lustberg: There you go.
Cody Smith: Did you work with your lawyers?
James Elmer Mitchell: No. I mean, I'm not going to answer that.
Cody Smith: You can answer it yes or no.
James Elmer Mitchell: Oh, yes.
Mr. Lustberg: Okay. And and did you take the first cut at what was responsive to what we were requesting then and then discuss it with your lawyers, or did did you do it together?
James Elmer Mitchell: We didn't sit down at the machine together and do it, no.
Mr. Lustberg: So you so you first selected what was responsive and sent it over to them for their review?
James Elmer Mitchell: Of the stuff that's within the last year or two, the stuff that's within the time period that you're talking about primarily, he had the information from I can't remember his name, the special prosecutor.
Mr. Lustberg: Durham?
James Elmer Mitchell: Durham. He had the information that Durham had requested off of my hard drive, and when that was over I mean, I gave my computer to a third party, they did whatever they do to that, gave him the documents, he had those documents, I didn't keep them. I put a new hard drive into that machine, and then when it came back to me, I reformatted that hard drive and used it to put audio books on.
Mr. Lustberg: Speaking of Durham, one of the things that he investigated was the destruction of the of the videotapes of the Abu Zubaydah interrogation; is that right?
James Elmer Mitchell: Yes.
Mr. Lustberg: And did you have anything to do with the with the destruction of those videotapes?
James Elmer Mitchell: No.
Mr. Lustberg: Did you have any conversations with anybody at any time about the destruction of those videotapes other than your lawyers?
James Elmer Mitchell: Yes.
Mr. Lustberg: Okay. And what were those conversations?
James Elmer Mitchell: I told, I forget what he's called, I think the Chief of Clandestine Service, that I thought those videotapes should be destroyed.
Mr. Lustberg: Uh-huh. Before they were destroyed?
James Elmer Mitchell: Yes.
Mr. Lustberg: Uh-huh. Why did you want them destroyed?
James Elmer Mitchell: Because I I thought they were ugly and they would, you know, potentially endanger our lives by putting our pictures out so that the bad guys could see us.
Mr. Lustberg: Uh-huh. And what was your response to your statement that they should be destroyed?
James Elmer Mitchell: That that was a CIA decision and that they were going to hold on to them because they were still potentially discoverable or something like that.
Mr. Lustberg: Uh-huh. And do you know how how it was under those circumstances that they did get destroyed?
James Elmer Mitchell: I know what I read. I mean, I know what I read and I know what the CIA told me.
Mr. Lustberg: What did the CIA tell you?
James Elmer Mitchell: The CIA told me that Jose Rodriguez had asked the lawyers if he had the authority to destroy them. The lawyers said yes. Jose then, I don't know if he called or emailed the Chief of Station where they were held and asked that person to send him a cable requesting permission to destroy them, and then they sent that cable and they were destroyed.
Mr. Lustberg: Uh-huh. Did Jose discuss this with you at any point?
James Elmer Mitchell: He might he didn't discuss it beforehand, but after he may have.
Mr. Lustberg: When you say "he may have," do you have a recollection of a conversation?
James Elmer Mitchell: I have a vague recollection of me being in his office one time and him telling me that he thought destroying the tapes was the right thing to do and that he did it. I don't recall that we had a you and I have spent more time talking about it than he and I spent.
Mr. Lustberg: We can go longer, too, if you want.
James Elmer Mitchell: It's up to you.
Mr. Lustberg: The so you so you advised I'm sorry. You just said and I don't recall. You advised somebody that you thought that the tapes should be destroyed; is that right?
James Elmer Mitchell: I didn't advise them, I told them.
Mr. Lustberg: You told them. Okay. You told them that you thought
James Elmer Mitchell: Yes.
Mr. Lustberg: And and did you provide a rationale for why you thought they should be destroyed? You just told us that, you know, that they were ugly.
James Elmer Mitchell: I told them I told them that they were ugly, that that if they got out, and they would get out, that the identities of the people on those tapes would be revealed and that those tapes would be taken out of context and played over and over and over on the TVs.
Mr. Lustberg: Uh-huh. Anything else that you said?
James Elmer Mitchell: I don't recall specifics of it but...
Mr. Lustberg: Uh-huh. Did you see any other downsides to the potential potentially not destroying those tapes other than that they might get out and be played on TV over and over and over?
James Elmer Mitchell: Well, just that the tapes were they were ugly and that people who weren't familiar I don't recall saying this to him, all right, but in my mind I recall thinking that looking at those tapes without knowing specifically that the Justice Department had determined, not once, but several times, that the things that had happened were legal, right, then they could be taken out of context.
Mr. Lustberg: That's not that's what I'm not understanding. If the Justice Department had determined that they were legal, why did the tapes have to be destroyed?
James Elmer Mitchell: Why don't we have tapes of abortions? We don't have tapes of abortion because they're not pleasant to look at even though that they're legal. And individual doctors wouldn't probably want videotapes of them aborting babies on You Tube even though it's legal.
Mr. Lustberg: Okay. So that was the reason, that they would make a bad appearance even though it was lawful?
Cody Smith: Objection.
Mr. Lustberg: Is that what you're saying?
Cody Smith: That's not what he said.
Mr. Lustberg: Okay. Then he can say no.
Cody Smith: Yeah, but he's already answered the question three times.
Mr. Lustberg: Okay. So this will be the last time.
James Elmer Mitchell: Now I've lost the question.
Mr. Lustberg: So that so that the concern was that they would make a bad appearance even though they were lawful?
Cody Smith: Objection.
Mr. Lustberg: That was the problem?
James Elmer Mitchell: That was it's sort of a shorthand version of one minuscule part of what the issue was, yeah.
Mr. Lustberg: I don't want I don't want it to be a shorthand version and I don't want to have to repeat, but so what am I missing in that summary?
James Elmer Mitchell: I didn't like the fact that the tapes were out there. I had a visceral reaction to the tapes. I thought they were ugly.
Mr. Lustberg: Had you seen them?
James Elmer Mitchell: Of course I saw them.
Mr. Lustberg: Uh-huh. You saw the tapes of yourself?
James Elmer Mitchell: Yeah.
Mr. Lustberg: Uh-huh. When did you see them?
James Elmer Mitchell: When we were putting together the videotape that we played to Jose Rodriguez and the other people at at the CTC when we were asking them to discontinue waterboarding. I saw I think we showed them a videotape, a standard videotape of one of his waterboarding sessions, and then the law enforcement expert that was with us had pieced together into a single tape a bunch of of the longer pours and we showed them that because we wanted them to get a sense of what was actually happening.
Mr. Lustberg: Just one more document.
Cody Smith: Never believe that from a lawyer.
James Elmer Mitchell: Yeah, I don't. That's what that's what we used to do. We used to say the interrogation is over and then come and ask him
Mr. Lustberg: No, no. This is I'm telling you just one more document. Oh, no, well, we might have to refer back to
James Elmer Mitchell: Yeah, I understand.
Mr. Lustberg: We may we may have to refer to one that you already have.
James Elmer Mitchell: Okay. (Exhibit No. 25, Request for formal declination of prosecution, was marked for identification.) I don't know what this is. It's mostly empty.
Mr. Lustberg: Take a look. When you've had a chance to look at it, let me know.
James Elmer Mitchell: Okay, I've had a chance to look at it.
Mr. Lustberg: Uh-huh. Do you recall making having a request made for a formal declination of prosecution that applied would apply to your activities with regard to Abu Zubaydah?
James Elmer Mitchell: I recall hearing some years afterwards that one they had considered doing that. There had been some discussions among CTC Office of General Counsel and CTC Legal, but I didn't know about this at the time.
Mr. Lustberg: Okay. So at the time so your testimony under oath is that at the time this was sent, you had no idea that this letter was being sent?
James Elmer Mitchell: I never saw this until they produced it for us, so...
Mr. Lustberg: Okay. So leaving aside whether you saw it, did you know that a request was being made to for a formal
James Elmer Mitchell: You mean in real time?
Mr. Lustberg: At the time it was occurring.
James Elmer Mitchell: I don't no, I don't recall knowing that.
Mr. Lustberg: Uh-huh. When you say you don't recall knowing that, so it may be that you did know it, but you just don't remember?
James Elmer Mitchell: I'm 99 percent confident that I that that I didn't know it. I mean, I just
Mr. Lustberg: Uh-huh. When did you find out about it?
James Elmer Mitchell: Months, years later and probably in talking to a CTC attorney about whether or not you know, I don't know. I mean, I just I don't have a specific recollection.
Mr. Lustberg: Uh-huh. Do you have any idea why a someone would have made a request for a formal declination of prosecution with regard to your activities?
James Elmer Mitchell: It was not necessarily my activities, right?
Mr. Lustberg: And yours and others.
James Elmer Mitchell: Does it say this is for my activities?
Mr. Lustberg: So what this says is that this you can see that this addresses aggressive methods required to persuade Abu Zubaydah to provide critical information. You were involved in that, weren't you?
James Elmer Mitchell: I'm looking at the I want to okay, 07/08/02. So this would be July. So clearly this was in anticipation of that, just from the date.
Mr. Lustberg: Okay. And so my my question is: You had no do you have any idea why a request would have been made for a formal statement that you would not be criminally prosecuted for those actions?
James Elmer Mitchell: I think if you wanted to know what the CIA thought about why they were doing this, you should ask the CIA.
Mr. Lustberg: I'm asking
James Elmer Mitchell: I don't have I don't they didn't tell me their reasoning behind doing it. And at the time I was unaware that they did it. So I don't have a thought about it.
Mr. Lustberg: Uh-huh. Okay. So if the SS if Senate Select Intelligence Committee says and you can take a look at this, Exhibit 5. That big Exhibit 5. This is what I said that there might be one other one
James Elmer Mitchell: Okay.
Mr. Lustberg: that we go back to. This on page 33. So, Dr. Mitchell, just read the first full paragraph on page 33. 33 of 499.
James Elmer Mitchell: In May
Mr. Lustberg: No, it starts, "After the July 2002." So yeah, I think the other one is a run-over paragraph.
James Elmer Mitchell: Okay. "After the July 2002 meeting"
Mr. Schuelke: Do you want him to read this aloud?
Mr. Lustberg: No, he doesn't You can read it yourself or if you want to read it aloud, whichever.
Cody Smith: Read it to yourself.
James Elmer Mitchell: I see it.
Mr. Lustberg: So the last sentence says this letter was circulated internally at the CIA, including to you?
James Elmer Mitchell: I see that.
Mr. Lustberg: Uh-huh. Is that not true?
James Elmer Mitchell: I don't recall that.
Mr. Lustberg: Uh-huh. Do you think if there was a letter requesting a declination of prosecution, you would remember it?
James Elmer Mitchell: Not necessarily. The lawyers were figuring out the lawyer part of this thing, you know. I was I was deployed to the site in July of 2002, so I have no recollection of seeing a letter that was circulated internally.
Mr. Lustberg: One second. Is when did you when did you first meet Dr. Jessen?
James Elmer Mitchell: 1988.
Mr. Lustberg: And when did you start working with him?
James Elmer Mitchell: 1989.
Mr. Lustberg: What were you doing together at that time?
James Elmer Mitchell: He was he was the chief of psychology for JPRA, and I was the chief of SERE psychology at the survival school.
Mr. Lustberg: Uh-huh. And you know, talk take us through how your relationship with him developed.
James Elmer Mitchell: He was the chief of psychology at the survival school and I was sent there, and you know, he briefed me on what his duties were.
Mr. Lustberg: And you became friends, right?
James Elmer Mitchell: Yes, we became friends.
Mr. Lustberg: Right. And you hunt together?
James Elmer Mitchell: We don't hunt.
Mr. Lustberg: Oh, you don't hunt together?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. You hike together, you do stuff
James Elmer Mitchell: We were mountain we were alpine climbers and ice climbers and rock climbers.
Mr. Lustberg: Okay. And how did how did it come about that you decided to go into business with him in Mitchell at Mitchell Jessen and Associates?
James Elmer Mitchell: In 2005?
Mr. Lustberg: Uh-huh. Whenever you did it.
James Elmer Mitchell: I think initially what we were intending to do was to offer continuing education credit to folks who were in a position like we had been in the military where it was hard to get continuing education credit that actually focused on your job your job stuff. And so the company was initially put together, and I think we used I had by then retired and dissolved Knowledge Works, and we decided to use that company's name. I think it was organized then in Delaware as that portion of it, yeah.
Mr. Lustberg: Uh-huh. Did in terms of developing the list that you that was provided to the CIA for their consideration in terms of the EITs
James Elmer Mitchell: You're fascinated with the word developing. I listed the I listed the techniques.
Mr. Lustberg: You did it, not Bruce?
James Elmer Mitchell: Well, I actually provided them with a verbal description of what was on that list before he was ever cut lose from the DOJ I'm sorry, from the DOD, Department of Defense. Then when he came onboard, there was another meeting where we again discussed what was on that list, and then sometime around the 8th or 9th of July, whatever date it says on that thing, we actually I actually sat at a laptop and typed up the list.
Mr. Lustberg: Okay. I'm sorry, so did you consult with him with regard to the list, was that something that you talked about before it was finalized and sent over?
James Elmer Mitchell: We we talked about it in that big meeting with CTC I had given them a list, all right, and described the techniques that were on the list. They brought him in. There were an additional meeting where we again discussed those things without producing a list, so he was involved in that meeting.
Mr. Lustberg: Okay. And did did Dr. Jessen did you have any disagreements with him as to what should be on the list or what the EITs ought to be?
James Elmer Mitchell: Well, they weren't called EITs.
Mr. Lustberg: I know that. So the list of whatever they were called at that time.
James Elmer Mitchell: I don't recall that there was any disagreements about it.
Mr. Lustberg: Uh-huh.
James Elmer Mitchell: He was curious about a couple things.
Mr. Lustberg: What was he curious about?
James Elmer Mitchell: Uh-huh. I think he was curious about the mock burial thing.
Mr. Lustberg: Uh-huh. Anything else?
James Elmer Mitchell: I don't recall.
Mr. Lustberg: Uh-huh. So you were advocating for the mock burial and he was against it or
James Elmer Mitchell: I wasn't advocating for the mock burial.
Mr. Lustberg: Well, you wanted to put it on the list and he did not want it on the list; is that right?
James Elmer Mitchell: No.
Mr. Lustberg: Okay. So what was what were the conditions?
James Elmer Mitchell: He was curious about why it was there.
Mr. Lustberg: Uh-huh. And what did you say?
James Elmer Mitchell: I said that I had that we used those techniques at the SERE school and that the FBI one of the FBI agents and I had discussed a way to do a hand-off to the FBI if, you know, the approach that the CIA took didn't work, and they were he was interested in working with me to develop a realistic threat and rescue kind of approach that was believable, and the FBI agent and I sat there and talked this thing out and I and I wrote it up.
Mr. Lustberg: I'm sorry, what's a what's a threat and rescue kind of approach?
James Elmer Mitchell: A threat and rescue is where, in this particular case, we had came had come up with the idea that it would look as if as if the CIA was washing their hands of Abu Zubaydah and that they were wanting to just simply get rid of him, you know, and the FBI could show up and rescue Abu Zubaydah, and because of that, you know, he might be more willing to work with them.
Mr. Lustberg: I'm sorry, I lost track. What does all this have to do with the mock burial part that you didn't that he was asking you about?
James Elmer Mitchell: Who was asking me about?
Mr. Lustberg: I thought I thought you said that Dr. Jessen asked you about
James Elmer Mitchell: He asked me why the mock burial was on the thing and I explained to him that we had worked out this threat and rescue I had worked out this threat and rescue idea with a with an FBI agent who wanted to be sure that they had some way to get back in that was realistic if for some reason the CIA opted out of it.
Mr. Lustberg: Okay. And again, I'm just trying to tie that to the mock burial. What does that have to do with the mock burial?
James Elmer Mitchell: Well, it would obviously be a threat if you walked a person out and you
Mr. Lustberg: I see.
James Elmer Mitchell: Right? And as you know from looking at the cable traffic, that was not done.
Mr. Lustberg: Yes. Have you you've been very public in discussing this program as, you know
James Elmer Mitchell: After they released me from some portion of my
Mr. Lustberg: Yup. So you can Goggle yourself and see lots of interviews.
James Elmer Mitchell: I don't
Mr. Lustberg: You're much more handsome in real life.
James Elmer Mitchell: I don't Google myself.
Mr. Lustberg: Yeah. So but any any reason that you know of why Dr. Jessen doesn't do those those kinds of interviews, doesn't speak up publicly?
James Elmer Mitchell: You'd have to ask Dr. Jessen about that. He's a more private person than I am.
Mr. Lustberg: Have you discussed that with him?
James Elmer Mitchell: I don't I asked him if he wanted to to do an interview with me at the 9/11 museum and he said he would be interested in doing that. I asked him if he would be willing to do a long-form interview with Malcolm Gladwell. He declined. So we've had a few discussions about that.
Mr. Lustberg: Uh-huh. Does it bother you that he hasn't wanted to speak up?
James Elmer Mitchell: No.
Mr. Lustberg: Are you do you know do you know whether anybody who was subjected to any of the enhanced interrogation techniques was damaged as a result of the use of those techniques on them?
James Elmer Mitchell: I don't know that for a fact.
Mr. Lustberg: Uh-huh. Do you think that do you think that people have suffered long-term harm as a result of that?
James Elmer Mitchell: I don't know that for a fact. It's one of those things that you can establish. If they're out there and that happened, then, you know, show me the data.
Mr. Lustberg: So do you think that it's do you think that that's possible? As a psychologist, do you think that's possible?
Cody Smith: Objection.
James Elmer Mitchell: Repeat the question?
Mr. Lustberg: Okay. You know what occurred with regard to these enhanced interrogation techniques, you know what they were. Do you think it's possible, as a psychologist, that an individual who was subjected to them suffered long-term physical or psychological harm?
Cody Smith: Objection.
James Elmer Mitchell: Not if they were applied in the way that the program recommended.
Mr. Lustberg: So if if they were subjected to those techniques in the way that the program intended, your view was that it was impossible that they would be harmed?
James Elmer Mitchell: My view is that it's so unlikely so as to be impossible.
Mr. Lustberg: Just one last question on that and which is: I've seen you talk about the fact that and I think it's in some of the cables as well, that you that there was always somebody present who could stop one of these interrogations at any time; is that right?
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: Do you is it your view that that would be immediately apparent if a technique was being used in a way that would cause long-term psychological or physical harm?
James Elmer Mitchell: Yes.
Mr. Lustberg: So if somebody was being harmed, you would know it from watching right then and there every time?
James Elmer Mitchell: Well, it's impossible to make that sort of a, you know, speculation. The most you can do is build in the safeguards to, you know, attempt to prevent that. And so you had physicians that were there who were specifically charged with monitoring that, you had psychologists that were that had a role that was specifically charged with monitoring for that, and you had the Chief of Base, you had other people who were there specifically charged for monitoring that. So the safeguards were built in, but like any endeavor that includes human beings, it's possible. You know, I think it's remote, but possible.
Mr. Lustberg: And in your experience, did the doctors shut down interrogations?
James Elmer Mitchell: I recall incidents and incident when that happened.
Mr. Lustberg: One time?
James Elmer Mitchell: Uh-huh.
Mr. Lustberg: What was that incident?
James Elmer Mitchell: I think I can't remember which detainee it was, but one of them began to report early indication of auditory hallucinations from sleep deprivation and they recommended that he get sleep.
Mr. Lustberg: How about the psychologist, did the psychologist there ever shut shut an interrogation?
James Elmer Mitchell: Well, keep in mind, I only did enhanced interrogation on five people.
Mr. Lustberg: Right.
James Elmer Mitchell: All right? And I didn't do any after 2003. So the only thing I can speak to is my experience with those five people, and I don't recall any of them stepping in and stopping an interrogation.
Mr. Lustberg: So other than your own experience, did you ever hear of other circumstances in which interrogations were stopped by doctors or psychologists?
James Elmer Mitchell: I I remember me stopping one.
Mr. Lustberg: Uh-huh. Which one was that?
James Elmer Mitchell: The one on Nashiri.
Mr. Lustberg: What did you do?
James Elmer Mitchell: I walked into the room and said, You're doing things that aren't authorized by the Justice Department, you need to stop.
Mr. Lustberg: Other than that, any other times that you know about either directly or somebody else told you?
James Elmer Mitchell: I don't recall sitting here right now of another time.
Mr. Lustberg: Just give us one minute. I think we're done, but I just want to talk to our team for a second. But I think we're done. Just go off the record for literally a minute.
THE VIDEOGRAPHER: The time is 6:37 PM. We are now off the record. (Recess.) We are now back on the record. The time is 6:41 PM.
Mr. Lustberg: And for the record, no further questions at this time.
Cody Smith: Dr. Mitchell, I have just a couple of questions. Could I ask you to put Exhibit 11 before you again, please?
James Elmer Mitchell: Okay.
Cody Smith: Do you have it there?
James Elmer Mitchell: Yes.
Cody Smith: When is the first time you saw this document?
James Elmer Mitchell: When it was released by the Government.
Cody Smith: In connection with this case?
James Elmer Mitchell: Yes.
Cody Smith: This document was, across the top the first page, top secret.
James Elmer Mitchell: Uh-huh.
Cody Smith: Do you know what that means?
James Elmer Mitchell: Yeah, it means it's that the release of it could the release of the information contained in the document could result in grave damage to US security. I think it's grave. I think that's the right word. They would know.
Cody Smith: Who created this document, do you know?
James Elmer Mitchell: I don't know who created it.
Cody Smith: Do you know when it was created?
James Elmer Mitchell: No.
Cody Smith: Do you know what the purpose was in creating it?
James Elmer Mitchell: No.
Cody Smith: Turn if you would to the last page of the document. Do you remember you were asked by counsel for the plaintiffs about this last page?
James Elmer Mitchell: Yes.
Cody Smith: Who created this page?
James Elmer Mitchell: I don't know.
Cody Smith: Do you know when it was created?
James Elmer Mitchell: No.
Cody Smith: Do you know if any of the information on this page is accurate?
James Elmer Mitchell: No.
Cody Smith: Now, if you see, there are two names that haven't been redacted.
James Elmer Mitchell: Yes.
Cody Smith: And I think you testified that they were two of the plaintiffs in this case?
James Elmer Mitchell: Yes.
Cody Smith: Do you know anything about those plaintiffs?
James Elmer Mitchell: No.
Cody Smith: And the X marks that are placed in the boxes for the under the various techniques
James Elmer Mitchell: I need to address that answer that I gave you. I said I don't know anything about those plaintiffs.
Cody Smith: Yes.
James Elmer Mitchell: I didn't know anything about those plaintiffs while they were in CIA custody, but because of release of documents that they had that established who they were, I now know.
Cody Smith: Okay.
James Elmer Mitchell: But I never heard of them at all until that lawsuit showed up on my doorstep.
Cody Smith: Okay. Thank you for that clarification.
James Elmer Mitchell: Sure.
Cody Smith: Where the X marks appear, for example, under sleep dep and then there's an X mark in the box for both of the plaintiffs, do you know anything about that?
James Elmer Mitchell: I don't know whether they actually had sleep dep or not. I can look at the page and tell you there's an X in it.
Cody Smith: Okay. Do you know why that X is there?
James Elmer Mitchell: I don't know why that X is there, no.
Cody Smith: Did anyone ever consult with you from the CIA about either of these two plaintiffs at any time about anything?
James Elmer Mitchell: No.
Cody Smith: Did you know anything about their treatment at any time that they were detained?
James Elmer Mitchell: No.
Cody Smith: All right. Now, you were asked a number of questions about the Zubaydah tapes of the interrogations. Do you remember that?
James Elmer Mitchell: Yes.
Cody Smith: It was just the Zubaydah tapes?
James Elmer Mitchell: There was only the Zubaydah tapes.
Cody Smith: Okay. And you made a recommendation that the Zubaydah tapes be destroyed?
James Elmer Mitchell: No.
Cody Smith: You didn't?
James Elmer Mitchell: No.
Cody Smith: Okay. Did you have a discussion about whether or not the Zubaydah tapes should be destroyed?
James Elmer Mitchell: Yes.
Cody Smith: Okay. And I think you testified to that discussion, right?
James Elmer Mitchell: I said I wanted them destroyed.
Cody Smith: You wanted them destroyed. And what was your primary reason in wanting those Zubaydah tapes of the interrogations destroyed?
James Elmer Mitchell: I was concerned that it was going to reveal our identities.
Cody Smith: Reveal whose identities?
James Elmer Mitchell: The identities of the people who were on the tape who were unmasked and in plain view.
Cody Smith: Okay. And why were you concerned that your identify would be and the others who participated, that the identities of those folks would be revealed?
James Elmer Mitchell: Abu Zubaydah had threatened to kill us several times.
Cody Smith: How many times did he threaten to kill you?
James Elmer Mitchell: About once a month he would say, If I ever get out of here, you know after the EITs were over, he would joke with us that he'd say, In here, we're friends; out there, I will kill you if I see you.
Cody Smith: Okay.
James Elmer Mitchell: All right? And in addition to that, I was just concerned about not having my face out there.
Cody Smith: Do you think if those tapes would have been released, that your life would have been in jeopardy?
James Elmer Mitchell: Yes.
Cody Smith: Do you think the lives of the other people who were participating in this process, their lives would have been in jeopardy as well?
James Elmer Mitchell: Yes.
Cody Smith: And was that the primary reason why you said what you said about the tapes?
James Elmer Mitchell: It was the most important reason.
Cody Smith: Okay. I have no further questions for the witness.
THE VIDEOGRAPHER: The time is 6:46 PM. We are now off the video record. This ends Disk No. 4 and today's deposition. (Witness excused.)