The US Court of Appeals for the Ninth Circuit on Monday ruled that Central Intelligence Agency (CIA) contractors who designed enhanced interrogation techniques do not fall under the jurisdiction of US federal courts in civil claims.
The three-judge panel unanimously affirmed the dismissal of Abu Zubaydah’s claims against two psychologists who designed enhanced interrogation techniques based on the military’s Survival, Evasion, Resistance and Escape (SERE) training program. Zubaydah sought damages for suffering torture, using the Alien Tort Statute (ATS), which grants federal courts jurisdiction over civil actions brought by non-US citizens for violations of US treaties and international law.
The central question in the case was whether federal courts have jurisdiction under the Military Commissions Act (MCA), which allows individuals to be tried for violations of the Law of War. The court held that despite their status as contractors, the defendants qualify as government agents under the MCA, and this means that federal courts do not have jurisdiction to hear civil claims against them.
The court found that the two psychologists qualified as government agents because the CIA authorized their conduct and maintained control over their operations. In the court opinion, Judge Anthony Johnstone relied on the Restatement (Third) of Agency, a set of legal interpretations published by the American Law Institute in 2006. Quoting case law, Judge Johnstone wrote:
At common law, “[w]hether an agency relationship exists is for a court to decide based on an assessment of the facts of the relationship” and how the parties define their relationship “is not dispositive.” While “independent contractors are not ordinarily agents,” courts still may find an agency relationship.
The court determined that because Zubaydah was designated as an enemy combatant, and the defendants were considered US agents, the MCA stripped the court of jurisdiction to hear any civil claims.
The ruling marks the latest legal development surrounding Zubaydah’s detention. In 2023, The UK Supreme Court ruled that he can bring claims against UK authorities in English and Welsh courts. In 2022, the US Supreme Court denied Zubaydah’s request for discovery to subpoena CIA contractors involved in his detention, ruling that details of his detainment and interrogation were protected by the state secrets privilege.
Originally designated as a terrorist and al-Qaeda leader, Zubaydah was captured in Pakistan in 2002 and subjected to interrogation tactics including waterboarding, sleep deprivation, and prolonged confinement in coffin-like boxes. Zubaydah’s case has drawn considerable attention due to the nature of his confinement and questions surrounding his actual role in the September 11th attacks. Zubaydah is still held today in the Guantanamo Bay detention camp under the Authorization for Use of Military Force (AUMF) Act, a joint resolution passed in 2001 that allows the use of military force against those responsible for the September 11 attacks.
Lawsuits of this nature spring from the 2006 Supreme Court ruling in Hamdan v. Rumsfeld, where it was determined that Bush-era military commissions acted in violation of the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions.
