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Speaker 1: Bruce Jesson and Jan Mitchell are psychologists whose company received

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Speaker 1: about eighty one million dollars from the CIA to develop

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Speaker 1: the CIA's post nine eleven methods to obtain information from prisoners,

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Speaker 1: including water boarding, water boarding, starvation, and sleep deprivation. The

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Speaker 1: s c l YOU sued them on behalf of three

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Speaker 1: men who are allegedly kidnapped, brought to so called CIA

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Speaker 1: black sites, and tortured using techniques designed by the psychologists.

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Speaker 1: One of the men died in captivity, and the other

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Speaker 1: two contend that they were water boarded and beaten before

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Speaker 1: they were then released because officials determined that they didn't

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Speaker 1: pose a threat. Now, as the lawsuit proceeds, attorneys for

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Speaker 1: the psychologists want to obtain CIA records to defend their clients,

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Speaker 1: and the judge in the case is given the CIA

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Speaker 1: time to decide whether it wants to try to keep

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Speaker 1: some of its records secret. Here to talk with us

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Speaker 1: about the cases, Margaret Chatterthwaite, the faculty director of the

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Speaker 1: Robert L. Bernstein Institute for Human Rights at n y

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Speaker 1: U Law School. Meg Let's start by talking about what

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Speaker 1: this case is, what what what exactly is going on here?

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Speaker 1: What's the lawsuit. Right, So the lawsuit is an incredibly

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Speaker 1: important one UM in the history of the efforts to

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Speaker 1: seek accountability for the torture program or the enhanced interrogation

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Speaker 1: program that was run during the George W. Bush Um presidency.

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Speaker 1: And the reason it's an important case is because it's

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Speaker 1: actually against the what is alleged to be at least

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Speaker 1: the architects of the torture program itself, and that's the

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Speaker 1: two defendants you described. It's also important because it's one

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Speaker 1: of the first cases where until this point the U. S.

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Speaker 1: Government has not intervened or been a party and asserted

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Speaker 1: what's called the state secrets privilege to try to get

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Speaker 1: rid of a lawsuit. So it's it's really a case

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Speaker 1: that has gotten as far as any other case and

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Speaker 1: and potentially further depending on what happens by this deadline

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Speaker 1: that you mentioned, Jens, Will you explain why the CIA

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Speaker 1: or the government is not part of this lawsuit? Well?

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Speaker 1: The sorry you said, who's part of this lawsuit? Why

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Speaker 1: it just explained why the CIA isn't being sued or

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Speaker 1: the federal government. Well, because they went directly after the psychologist,

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Speaker 1: which was an interesting um, which was an interesting strategy

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Speaker 1: to go after Mitchell and Jens Jesson directly. Um, since

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Speaker 1: they were the architects of the theory behind the torture

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Speaker 1: they really are in a unique position in terms of

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Speaker 1: in terms of their liability. And that's really what's generated

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Speaker 1: the odd conflict in this case. Up until now, the

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Speaker 1: CIA and the federal government and the psychologists who constructed

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Speaker 1: the torture program, we're all on the same side. So

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Speaker 1: for example, when the when the U. S. Senate under

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Speaker 1: the Obama presidency, when Feinstein was running, the Senate decided

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Speaker 1: to conduct a really wide ranging inquiry into the torture program. Uh,

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Speaker 1: they were looking for documents from the from the CIA

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Speaker 1: and the federal government, and and and in that situation,

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Speaker 1: the psychologists and the CIA were basically on the same

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Speaker 1: side and wanting to keep all the information secret. But

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Speaker 1: now dispute has broken out between the psychologists and the CIA,

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Speaker 1: which are now on opposite sides of the of this

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Speaker 1: dispute because the psychologists say, hey, we need access to

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Speaker 1: the records about the torture program in order to defend

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Speaker 1: ourselves against this against this lawsuit, Whereas I'm pretty sure

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Speaker 1: the federal government and the CIA are going to say

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Speaker 1: we want this stuff kept secret. Well, Meg, in terms

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Speaker 1: of keeping things secret, Uh, you know you mentioned that

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Speaker 1: there's a complicated procedure here for figuring out whether these

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Speaker 1: kinds of documents can come to the light of day

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Speaker 1: in court. Can you take us through how the court's

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Speaker 1: going to end up reviewing the documents and making that decision. Sure, So,

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Speaker 1: if the US government does assert state secrets, it has

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Speaker 1: to do so using a very specific formal procedure. Um. Now,

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Speaker 1: as we've already mentioned, the U S Government is not

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Speaker 1: a party in this case. So the first thing that

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Speaker 1: will have to do, and I will actually do this

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Speaker 1: at the same time, it will have to make a

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Speaker 1: motion to intervene in the case, and that will allow

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Speaker 1: it to then also make a motion to assert the

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Speaker 1: state secrets privilege. And that assertion both has to be

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Speaker 1: in that formal motion and also has to be supported

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Speaker 1: by two affidavits from the head of the agency that's

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Speaker 1: asserting the privilege. Here, it would be the CIA director

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Speaker 1: um and one of the public affidavit in which he

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Speaker 1: sets out the reasons for this assertion, and the other

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Speaker 1: is a secret classified ex parte. So only for the

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Speaker 1: judges eyes um declaration in which he sets out, you know,

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Speaker 1: anything that needs to remain classified that the judge needs

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Speaker 1: to take into consideration. Then the judge has to make

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Speaker 1: a determination about whether the privilege is properly invoked, So

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Speaker 1: did they actually follow this proper procedure? Um? And then

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Speaker 1: he has to determine whether, um, what would be the

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Speaker 1: effect of the assertion of that privilege? So does it

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Speaker 1: actually deprive the defendants of their defense? Um? If so,

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Speaker 1: is that a valid defense and not just a hypothetical

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Speaker 1: one that they have UM invoked in order to you

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Speaker 1: make this assertion um. And at that point, let's say

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Speaker 1: the judge decides that it was properly invoked and it

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Speaker 1: does deprive the defendants of a defense, then the judge

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Speaker 1: has to determine what's the effect on the lawsuit as

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Speaker 1: a whole. And that's where I think you get into, um,

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Speaker 1: the fact that this case is unique and that there

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Speaker 1: are so many documents and so many facts already in

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Speaker 1: the public um, including statements and even a book by

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Speaker 1: Mitchell himself about the role of these two defendants in

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Speaker 1: the torture program. So Jen's will that make it more

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Speaker 1: difficult two for the CIA to retain the privilege? UM.

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Speaker 1: I think it will make it more difficult UM. So

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Speaker 1: much of this is now in the public record that

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Speaker 1: the administration is going to have a hard time UH

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Speaker 1: convincing the court that all of this should be shielded

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Speaker 1: from from public view. That being the case, I think

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Speaker 1: that there's a huge number of deep tales UM that

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Speaker 1: are not in the public record in terms of UM,

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Speaker 1: the specific uh nature of the interrogations, the injuries UM,

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Speaker 1: the the exact role that Mitchell and Jesson played UM.

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Speaker 1: A lot of the details are not in the in

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Speaker 1: the public record, and I think the government could make

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Speaker 1: a case that this would be really damaging if, if,

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Speaker 1: if some of this UM details were released to the public.

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Speaker 1: One thing I'd say is that a lot of this

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Speaker 1: information was already collected by the Senate Select Committee on

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Speaker 1: Intelligence that UM investigated all of this, but the only

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Speaker 1: part that was publicly released UM was was a very

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Speaker 1: short executive summary. Actually it wasn't that short, but the

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Speaker 1: underlying report was never released to the public. I mean

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Speaker 1: that's volumes and volumes of detailed information, and the government,

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Speaker 1: in particular the intelligence community kind of fought tooth and

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Speaker 1: nail to make sure that that underlying document UM was

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Speaker 1: never released to the to the public. And you know,

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Speaker 1: my bead is that the government in this case is

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Speaker 1: going to be equally um insistent that the you know,

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Speaker 1: that the details not be released to the public. That's

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Speaker 1: Jen's David Allan, Associate Dean for Academic Affairs and Professor

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Speaker 1: of Law at Cornell Law School, and our other guest

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Speaker 1: Margaret meg shattered Waite to the faculty director at the

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Speaker 1: Robert L. Bernstein Institute for Human Rights at n Y

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Speaker 1: You thanks to both of you for being on Bloomberg Law.

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Speaker 1: That's it for this edition of Bloomberg Law will be

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Speaker 1: our technical director Marx and Escalchi and our producer David Suckerman.

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