Court: District Court, E.D. Washington; August 7, 2017; Federal District Court
Defendants’ Motion for Summary Judgment, Plaintiffs’ Motion for Partial Summary Judgment, and Defendants’ Motion to Exclude are before the court, following a detailed submission of over 4,000 evidentiary pages and oral arguments held on July 28, 2017. Plaintiffs Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Gul Rahman allege they were victims of psychological and physical torture, invoking claims under the Alien Tort Statute (ATS).
Specifically, Plaintiff Salim, a Tanzanian citizen, alleges he was captured by the CIA and Kenyan forces in Somalia in March 2003 and subsequently held in U.S. facilities in Afghanistan for a total of approximately five years, experiencing severe coercive interrogation techniques. He describes being subjected to prolonged sleep deprivation, water dousing, and physical assaults, including slaps and stress positions. Salim details the harsh conditions of confinement, such as being kept in a frigid, dark cell, chained in a painful squatting position, and receiving minimal food. He recounts being stripped naked, doused with ice-cold water, and confined in a small, rancid-smelling box, leading to significant physical and psychological distress. After weeks of these methods, he claims to have been deemed "broken" and "cooperative" by his interrogators. Salim also mentions involuntary medical treatment, including painful injections administered without his consent.
After approximately four to five weeks in custody, Mr. Salim attempted suicide using pain pills. Following this, he was transferred to a site in Afghanistan known as "the Salt Pit," where he spent 14 months, primarily in solitary confinement. He was then moved to Bagram Air Force Base, where he was detained for four years in a small cage within a brightly lit hangar, without outdoor access. Post-release, Mr. Salim reports ongoing physical and psychological issues, including severe pain, nightmares, and symptoms consistent with post-traumatic stress disorder (PTSD).
Mr. Soud, a Libyan national who fled the Gaddafi regime, was captured in Pakistan during a 2003 raid by U.S. and Pakistani forces. He was shot in the leg during the incident and subsequently detained and abused for two weeks. Despite denying any terrorist affiliations, he was sent to COBALT, where he experienced severe interrogation techniques similar to those used on Mr. Salim, such as sleep deprivation and physical abuse. He was kept naked for over a month, received inadequate nutrition, and lost significant weight. His treatment escalated into a more aggressive phase of torture, including walling and water dousing. Mr. Soud remained in solitary confinement until August 22, 2004, when he was handed over to Libya, where he was sentenced to life imprisonment but released in 2011 post-Gaddafi. He reports lasting physical and psychological effects from his torture.
Gul Rahman, an Afghan citizen, was detained by U.S.-Pakistani forces in October 2002 while living in Pakistan. In November 2002, he underwent a psychological evaluation by Defendant Jessen at COBALT, who allegedly determined that further torture was necessary to break Rahman's will. Jessen is accused of directly participating in his aggressive interrogation, which included various forms of torture such as slapping, stress positions, dietary manipulation, sleep deprivation, prolonged nudity, and water dousing, which continued after Jessen's departure from COBALT.
On November 19, 2002, Mr. Rahman was found dead after being chained in a stress position, partially nude, and exposed to low temperatures. The autopsy indicated hypothermia as the likely cause of death, compounded by dehydration, lack of food, and immobility due to short chaining. Plaintiffs assert that the CIA investigated his death, which was included in a 2004 CIA Inspector General Report, but no accountability was established. They allege that his death was concealed until 2010.
Defendants James Mitchell and John "Bruce" Jessen, both U.S. citizens and psychologists, were involved in the CIA's interrogation practices, having worked as independent contractors for the CIA and at their firm, Mitchell, Jessen, Associates. They produced a document for the CIA that advocated for countermeasures against resistance to interrogation, which, according to Plaintiffs, justified torture and inhumane treatment by promoting a theory of "learned helplessness."
In March 2002, after Abu Zubaydah's capture, Mitchell was contacted for interrogation strategies, leading to his involvement in suggesting learned helplessness techniques. By July 2002, after deeming Zubaydah uncooperative, the CIA decided on more aggressive interrogation methods, with Jessen's assistance. The Attorney General initially approved 11 of 12 proposed coercive methods, including waterboarding, which was approved shortly thereafter.
Plaintiffs allege that both defendants personally conducted or oversaw Zubaydah’s interrogation, employing tactics such as physical assault and waterboarding, and that they deemed the interrogation a success, recommending these methods for future use on high-value detainees. They are accused of creating the CIA's "enhanced interrogation techniques" program and training CIA personnel in these methods. Between 2001 and 2010, Mitchell, Jessen, and their firm reportedly received over $80 million for various services related to CIA operations.
In summary judgment proceedings, facts are considered in favor of the non-moving party, but both parties have submitted cross-motions for summary judgment. The document presents undisputed background facts while noting areas of significant factual dispute, primarily referencing ECF No. 201, a comprehensive 200-page document consolidating the parties’ statements. Defendants James Mitchell and John Jessen, both psychologists, were involved with the CIA in the context of counterterrorism following the September 11 attacks. President Bush authorized the CIA to capture and detain threats to U.S. security on September 17, 2001, leading to the establishment of secret detention facilities, known as "black sites." Mitchell began consulting for the CIA in August 2001 and subsequently expanded his contract in June 2002, with fees ranging from $1,000 to $1,800 per day. He had prior experience with the U.S. Air Force’s SERE program. Jessen, also a SERE program member, joined the CIA on July 22, 2002, at Mitchell's request, to assist in developing strategies to counteract Al-Qa’ida's resistance to interrogation. After the capture of Abu Zubaydah on March 27, 2002, Mitchell contributed to the interrogation efforts, providing recommendations for enhancing the interrogation environment to induce disorientation and helplessness. There is a dispute between the parties regarding whether the interrogation methods aimed to create a state of "learned helplessness."
The parties acknowledge that "learned helplessness" results in severe feelings of depression, passivity, and withdrawal. Defendants deny promoting this concept, which remains contested. The interrogation team was informed they could use non-traditional methods on AZ, who was not afforded Geneva Convention protections. Interrogation commenced around April 17, 2002, with Mitchell aiding in identifying AZ's resistance tactics and developing countermeasures. Following each session, formal reports and situation updates were submitted to headquarters. A strategy review meeting occurred on May 8, 2002, where the team decided to disrupt AZ’s sleep to impair his mental faculties.
In June 2002, a meeting attended by Mitchell aimed to strategize the next interrogation phase, with concerns that AZ was withholding crucial information. An isolation phase began on June 18, 2002. By late June, Rodriguez sought additional interrogation techniques from Mitchell to break AZ's resistance. A July 2002 meeting focused on refining tactics for a decisive interrogation push concerning imminent terrorist threats, during which Mitchell suggested techniques from SERE training, including walling, cramped confinement, stress positions, sleep deprivation, waterboarding, and mock burial, aimed at inducing fear and compliance.
At the July meeting's conclusion, Rodriguez encouraged Mitchell to collaborate with the CIA to implement these techniques. Mitchell requested Jessen's assistance, and Jessen became a CIA contractor on July 22, 2002. Subsequent meetings included discussions on increased pressure phases, leading to a request for a written list of interrogation techniques and their intended effects, resulting in a memo (the "July 2002 Memo") detailing what became known as Enhanced Interrogation Techniques (EITs). A subsequent CIA cable outlined the EITs, noting that waterboarding and mock burial required Attorney General approval, while other techniques could be sanctioned by the CIA's legal team.
The CIA determined the necessary U.S. Government approvals for Enhanced Interrogation Techniques (EITs), not the Defendants. On July 13, 2002, Rizzo met with John Yoo and others to discuss EITs, focusing on waterboarding and mock burial, and indicated that more aggressive methods were needed for the interrogation of AZ. He assured that trained medical personnel would be present to mitigate risks of severe health issues. Rizzo sought input on the psychological impacts of the EITs, noting that their effects might differ from those experienced in SERE training. The CIA acknowledged that while efforts would be made to prevent permanent harm, risks remained.
On July 17, 2002, Condoleezza Rice approved the use of EITs on AZ. A cable sent on July 23 indicated that SERE psychologists recommended an escalating interrogation strategy culminating in a convincing technique, specifically mentioning waterboarding. On August 1, Rizzo received the Bybee Memo, which concluded that ten EITs, including waterboarding, did not violate the torture prohibition under 18 U.S.C. § 2340A. The aggressive phase of AZ's interrogation began on August 4, 2002.
After six days, the interrogation team reported it was unlikely AZ had actionable intelligence, but he might be withholding other information. Despite recommending a halt to EITs, HQS instructed their continuation. A videoconference on August 13 mandated further use of EITs for two to three weeks. Plaintiffs argue that Mitchell influenced the prolonged interrogation due to his initial recommendation for a 30-day period. On August 19, waterboarding was executed under observation, and by August 23, the aggressive phase concluded with AZ deemed compliant. A subsequent cable suggested using this approach as a model for future high-value interrogations. The authorship of this cable is disputed, with Plaintiffs claiming Defendants wrote it. Finally, the Office of Legal Counsel affirmed that EITs could be applied to other detainees, and Mitchell and Jessen believed they were the only authorized individuals to conduct EITs until late 2002.
On January 31, 2003, formal guidelines for detainee interrogations were issued by the CIA Director to all CIA black-sites, including COBALT, which was located outside the U.S. A CIA Staff Officer, the Chief of Base at COBALT, arrived in August 2002, prior to its operational start. Plaintiff Salim was arrested in Somalia in 2003 and detained at COBALT for approximately two months, during which he experienced various forms of interrogation, including "walling," sleep deprivation, and physical abuse. Salim was unaware of any interaction with defendants Mitchell or Jessen. He was transferred to Bagram Air Force Base in March 2004 and released in 2008.
Plaintiff Soud was captured in Pakistan on April 3, 2003, and transferred to COBALT, where he was held for over a year and subjected to similar abusive techniques, including sleep deprivation and stress positions. He also did not interact with Mitchell or Jessen and was released on August 22, 2004.
Rahman was captured in Pakistan in October 2002 and later transferred to COBALT. Jessen, who arrived in November 2002, assessed Rahman and authorized interrogation techniques, including the facial slap EIT. Rahman experienced severe interrogation methods, including a "hard takedown" and unauthorized techniques, leading to physical abuse. Jessen recommended continued environmental deprivation and frequent questioning. Six days after Mitchell and Jessen left COBALT, Rahman was found dead, having succumbed to hypothermia while shackled and exposed to freezing conditions.
In March 2005, Mitchell and Jessen formed Mitchell, Jessen, Associates (MJA), which provided services for CIA detention sites and received between $72 and $81 million from 2005 to 2009.
Summary judgment aims to prevent unnecessary trials when material facts are undisputed. A motion for summary judgment is granted if, when evidence is viewed favorably to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The moving party must produce evidence negating essential elements of the opposing claim but does not need to disprove every aspect of the opponent’s case. If the nonmoving party bears the burden of proof at trial, the moving party can simply highlight the lack of supporting evidence. The opposing party must present specific facts demonstrating a genuine issue for trial rather than merely suggesting doubt. Summary judgment is viewed as an integral part of the Federal Rules, promoting just and efficient case resolution.
Defendants present four arguments for their Motion for Summary Judgment: (1) lack of jurisdiction under the Political Question Doctrine; (2) entitlement to derivative sovereign immunity; (3) the Alien Tort Statute does not provide jurisdiction for Plaintiffs’ claims; and (4) lack of direct liability for violations of international law, aiding and abetting, or conspiracy. Conversely, Plaintiffs assert in their Motion for Partial Summary Judgment that the undisputed facts legally establish Defendants' liability under the Alien Tort Statute for aiding and abetting torture and cruel treatment. Additionally, Defendants seek to exclude references to the Senate Select Committee on Intelligence Study of the CIA's Detention and Interrogation Program (the "SSCI Report"). The court will first evaluate Defendants’ arguments, many of which were previously addressed in a Motion to Dismiss. The Political Question Doctrine argument offers little new insight and relies on several disputed factual and legal assertions, including claims of CIA control, intent behind enhanced interrogation techniques (EITs), good faith actions by Defendants, and the absence of international norms against non-consensual human experimentation. Importantly, decisions made by the executive branch are subject to judicial review, as illustrated in N.L.R.B. v. Noel Canning, where the Supreme Court ruled against the President's recess appointment power.
U.S. courts have the authority and generally the duty to adjudicate cases presented to them, as established in Baker v. Carr, which outlines the political question doctrine through six considerations. These include: 1) constitutional commitment of the issue to a political department; 2) absence of judicial standards for resolving the case; 3) need for a policy determination requiring nonjudicial discretion; 4) potential disrespect for other government branches; 5) necessity for adherence to existing political decisions; and 6) risk of conflicting statements from different departments. While the Supreme Court has warned against assuming all foreign relations issues are political questions, it has affirmed that federal courts can review military decisions affecting civilians.
Defendants in this case reference a two-part test from the Fourth Circuit's Taylor v. Kellogg Brown & Root, asserting that the court is not obligated to follow this precedent. The Al Shimari case, which has been dismissed and reversed multiple times, involves Iraqi nationals suing for their treatment at Abu Ghraib, where CACI provided military interrogation services. The Fourth Circuit ruled that unlawful conduct by CACI employees is justiciable, regardless of military control. The court also noted that actions may be shielded from review if lawful and under military control. Defendants argue that their actions were solely under CIA control and question the legitimacy of their conduct, highlighting the intertwining of jurisdictional and tort claim facts, which necessitates caution in determining jurisdiction.
The court asserts that it should not refrain from addressing subject matter jurisdiction and can proceed to evaluate the case's merits. It concludes that it has jurisdiction, rejecting the political question doctrine as a barrier, noting that similar cases have been adjudicated by other courts, including the Ninth Circuit's ruling on the detention of an American citizen under harsh conditions. The court references the Supreme Court's jurisdiction in cases involving the legality of detaining foreign nationals at Guantanamo Bay and relevant cases such as Hamdi v. Rumsfeld, affirming the need for due process for U.S. citizens detained as enemy combatants. It emphasizes that Congress's authorization does not eliminate the requirement for judicial review of such detentions.
The court denies the Defendants' Motion for Summary Judgment based on the political question doctrine. Regarding derivative sovereign immunity, Defendants claim immunity as private contractors acting on behalf of the government, citing Supreme Court cases Yearsley v. W.A. Ross Const. Co. and Filarsky v. Delia. They argue that their actions were within the bounds of valid authority and contractual scope. Conversely, Plaintiffs contend that the government cannot shield illegal actions by delegating them, asserting that the authorization of torture is inherently unlawful. Defendants argue against being solely liable for actions that government employees are immune from, but Plaintiffs highlight that the Defendants had a profit motive distinct from government employees, having received $80 million, with the CIA covering significant defense costs through indemnity provisions in their contracts.
Defendants claim that Filarsky immunity applies if their immunity claim is historically rooted in common law and does not violate clearly established rights. Plaintiffs counter that psychologists have never traditionally held such immunity and that Defendants violated established rights. Defendants assert that psychiatrists and psychologists receive immunity when assessing a defendant's mental competency, but their actions do not align with typical psychological evaluations in legal contexts. Plaintiffs reference Jensen v. Lane County, which indicates that medical professionals conducting psychological assessments in commitment proceedings lack immunity due to the absence of a "firmly rooted tradition" of such protection. The court also distinguished between private contractors and government employees, highlighting that market factors can incentivize qualified candidates without immunity.
Defendants failed to prove their immunity claim is historically justified. They further argue that subjecting individuals to torture did not clearly violate established rights, citing Padilla v. Yoo; however, the illegality of torture is well-established, as noted in Filartiga v. Pena-Irala, asserting that torture is prohibited universally. The Padilla case confirms that the unconstitutionality of torturing U.S. citizens was indisputable by 2001.
Additionally, the Supreme Court's ruling in Campbell-Ewald v. Gomez clarifies that federal contractors do not share the government's absolute immunity. The Court emphasized that contractor immunity is qualified and can be overridden if the contractor knew or should have known their actions violated clearly established rights. The inquiry considers whether the contractor exceeded their authority or if the government’s authority was improperly granted, which could lead to contractor liability. Plaintiffs argue that Defendants Mitchell and Jessen not only acted under government direction but also designed and implemented an experimental torture program based on a flawed psychological theory of "learned helplessness."
Plaintiffs allege that Defendants influenced Justice Department lawyers to approve coercive interrogation techniques, specifically waterboarding, which they described as "an absolutely convincing technique." Defendants Jessen and Mitchell are accused of directly participating in the torture of Abu Zubaydah, including the application of waterboarding. Evidence supports these claims, countering Defendants' assertions that they acted solely under CIA direction. Testimony from Jose Rodriguez indicates that prior to September 2001, the CIA's Counterterrorist Center (CTC) lacked interrogation expertise, leading him to recruit Mitchell to develop an interrogation program, which Mitchell is described as the "architect" of. John Rizzo corroborated that Defendants were instrumental in creating the program and training other CIA interrogators. A CIA Inspector General Report from May 2004 reveals that Defendants proposed new aggressive enhanced interrogation techniques (EITs) and advocated for waterboarding. Documentation from July 2002 outlines that the interrogation plan depended on waterboarding, asserting it was critical for effective pressure. It is established that Defendants administered EITs, including waterboarding, to Abu Zubaydah, with Mitchell's own writings confirming their involvement. A CIA cable indicates that during an "increased pressure phase," Abu Zubaydah would face prolonged psychological pressure. Jessen's testimony regarding his use of techniques like facial slapping implies a lack of explicit authorization, potentially contradicting claims of CIA's absolute control over interrogation methods. Furthermore, an April 2005 CIA Inspector General Report highlights Jessen's significant role in the interrogation of another individual, Rahman, indicating his involvement in multiple sessions.
A lead CIA Staff Officer at COBALT indicated that Jessen was responsible for Rahman, having drafted cables regarding the interrogation sessions. Mitchell participated in one of these sessions and, along with Jessen, left COBALT shortly before Rahman's death. Jessen prepared the interrogation plan for Rahman and recommended ongoing environmental deprivations. The report concluded that a CIA Staff Officer's decision to short-chain Rahman to a concrete floor in near-freezing temperatures led directly to his death from hypothermia, demonstrating “reckless indifference” to his life. Although criminal charges were investigated, none were filed. As Defendants seek summary judgment, the facts are viewed favorably towards the Plaintiffs, suggesting that Mitchell and Jessen played a significant role in the program's design and were not merely following government orders.
The court noted that derivative sovereign immunity is limited to cases where contractors have no discretion in the design process. Defendants were involved in actual interrogations and exercised significant control despite the CIA's ultimate oversight. Evidence from Mitchell's book illustrated his discretion in changing the application of interrogation techniques. The factual record supports that Defendants contributed to the program's design, trained interrogators, and exercised discretion in its application. The court denies the motion for summary judgment based on derivative sovereign immunity.
Regarding the Alien Tort Statute (ATS), Defendants renewed their argument that the ATS does not apply extraterritorially, relying on the Supreme Court's RJR Nabisco decision. They argued that if the conduct relevant to the statute's focus occurred abroad, it constitutes impermissible extraterritoriality. However, the court previously found the Plaintiffs' allegations sufficient to meet the “touch and concern” standard established in Kiobel v. Royal Dutch Petroleum.
The presumption against the extraterritorial application of the Alien Tort Statute (ATS) remains intact, as established by the Ninth Circuit in Doe I v. Nestle USA, Inc. Defendants argue for the application of the ‘focus’ test from RJR Nabisco, which the Ninth Circuit has previously rejected. While Morrison v. Nat’l Australia Bank Ltd. may provide insights for the “touch and concern” standard, it does not apply to ATS claims, which are based on international legal norms. The Ninth Circuit refrained from resolving the extraterritorial application of the ATS in Nestle, remanding for further proceedings. Although RJR Nabisco addresses extraterritoriality in the context of the Racketeer Influenced and Corrupt Organizations Act (RICO), it does not directly relate to the ATS. The Supreme Court outlined a two-step framework for analyzing extraterritoriality, where the first step assesses if the presumption has been rebutted, followed by determining if the case involves a domestic application of the statute. In Kiobel, the Court affirmed that the ATS is subject to this presumption but did not explore the focus inquiry. The Kiobel majority noted that claims must “touch and concern” U.S. territory significantly to overcome this presumption. Various Justices expressed that significant questions regarding the ATS's reach remain unresolved. Notably, some Justices would allow ATS jurisdiction under specific conditions, including if the alleged tort occurs in the U.S. or if the defendant is an American national. This court concludes that RJR Nabisco does not displace the Kiobel precedent regarding the ATS's extraterritoriality, maintaining that Doe I v. Nestle continues to be the controlling authority. The court notes a dismissal in the Nestle case conflicts with recent Supreme Court and Ninth Circuit rulings, and acknowledges the ongoing appeal in that case, as well as a recent Fifth Circuit ruling in Adhikari v. Kellogg Brown.
A 2-1 decision by the court affirmed the dismissal of plaintiffs’ Alien Tort Statute (ATS) claims, ruling them as an impermissible extraterritorial application of the ATS. The Fifth Circuit recognized a divergence in interpretation from the Ninth Circuit, which holds that the Supreme Court's Kiobel decision does not incorporate the Morrison focus test. The Fifth Circuit noted differing interpretations among other Circuits regarding Kiobel's "touch and concern" language. A dissenting opinion in Adhikari asserted that the majority's application of the focus inquiry would effectively eliminate the ATS's extraterritorial reach, a position the Fifth Circuit disagrees with, suggesting that such an interpretation would be illogical and contrary to historical applications of the statute. The court stated that it will apply the touch and concern standard, albeit acknowledging its vagueness.
The plaintiffs allege that their claims have substantial connections to the United States: the defendants are U.S. citizens who devised and supervised a torture plan from the U.S., executed contracts with the CIA in the U.S., and the plaintiffs were subjected to interrogation methods while under U.S. custody. The court found these allegations sufficient to overcome the presumption against extraterritorial application of the ATS, but stressed that plaintiffs must substantiate these claims with factual evidence post-discovery. It is confirmed that defendants Mitchell and Jessen are U.S. citizens who worked with the CIA, operated a company in Washington, and attended meetings at CIA headquarters in the U.S. The Ninth Circuit has noted that the Supreme Court did not specify the “touch and concern” test in detail in Kiobel.
The Ninth Circuit acknowledges that a defendant's U.S. citizenship can be a relevant factor in legal cases, but a plaintiff cannot base a lawsuit solely on a defendant's status as a U.S. national in relation to extraterritorial conduct. The case Mujica, involving Colombian plaintiffs suing U.S. corporations for complicity in a bombing in Colombia, was dismissed because the claims did not meet the "touch and concern" standard with the U.S. despite the defendants being U.S. entities. In contrast, the case at hand is more akin to Al Shimari v. CACI Premier Technology, where the Fourth Circuit allowed claims against a U.S. military contractor relating to torture at a U.S. military facility, emphasizing the connection to the U.S. through the contract's execution, defendant's headquarters, and operational conduct.
In this case, the individual defendants are U.S. citizens who operated a company in Spokane, Washington, supporting the CIA's enhanced interrogation program. They interacted with U.S. government officials, developed interrogation techniques in the U.S., and executed contracts with the CIA, indicating a substantial connection to U.S. soil. The court concludes that the defendants' actions sufficiently "touch and concern" the U.S. to justify the application of the Alien Tort Statute (ATS) despite its presumption against extraterritorial reach. The court recognizes uncertainty regarding the "focus" test, which relates to conduct violating international law, but suggests that this test could also be satisfied as the plaintiffs allege that the defendants aided and abetted violations of international law, with significant conduct occurring within the U.S.
Defendants’ Motion for Summary Judgment regarding their liability under the Alien Tort Statute (ATS) is denied. They argue three points related to jurisdiction and immunity and a fourth concerning the merits of their claim, contending they are not directly liable for violating international law, nor for aiding and abetting or conspiracy. Plaintiffs seek partial summary judgment, claiming Defendants aided and abetted torture and inhumane treatment, asserting that their actions meet the legal standards for aiding and abetting liability under the ATS. Plaintiffs reference established law regarding the necessary elements for such liability, although they acknowledge ambiguity as highlighted in Doe I v. Nestle USA.
In response, Defendants challenge the factual basis of Plaintiffs’ claims, asserting their involvement in the CIA Program did not significantly contribute to any alleged crimes and that they lacked the required mental state for aiding and abetting. They maintain they are not directly liable, do not possess the necessary mens rea, and are not involved in conspiracy with the U.S. government.
The ATS grants federal jurisdiction for civil actions by aliens for torts violating international law. The Supreme Court has indicated that while the ATS is primarily jurisdictional, it allows federal courts to hear a limited category of claims recognized under common law at the time of enactment. Plaintiffs must demonstrate they are aliens seeking damages for a tort arising from violations of international law or U.S. treaties. Torture is recognized as a violation of international law. Plaintiffs’ claims hinge on Defendants' design of the CIA Program, with Doe I v. Nestle serving as a key precedent on aiding and abetting liability under the ATS, wherein Nestle was accused of facilitating child slavery in cocoa production.
Nestle, while not owning the farms in question, was alleged by plaintiffs to have provided financial and technical support to Ivorian farmers, knowingly facilitating forced child labor. The Ninth Circuit stated that customary international law governs aiding and abetting claims under the Alien Tort Statute (ATS), addressing the necessary mens rea and actus reus for liability. It explored whether a "knowledge" or "purpose" standard should apply for mens rea, acknowledging differing interpretations among other Circuits but ultimately concluded that plaintiffs' allegations met the threshold under either standard. The court inferred that defendants prioritized profits over human welfare, suggesting their actions were aimed at facilitating child slavery and that they benefited from these violations of international law.
Regarding actus reus, the Ninth Circuit defined it as providing substantial assistance to a crime, though it refrained from establishing a specific standard for determining whether such assistance must be directed at the crime itself. The court noted that the focus should be on the causal link between the defendants and the crime. In a separate context, plaintiffs argued that Mitchell and Jessen significantly contributed to a program that resulted in detainee abuse, asserting that their financial compensation evidenced intent. They contended that defendants directly participated in the mistreatment of detainees, specifically citing the extreme suffering inflicted on one individual, Abu Zubaydah, as evidence of the torture and inhumane treatment involved. Defendants' counterarguments were deemed unconvincing.
Defendants claim the existence of multiple interrogation programs, which contradicts John Rizzo's testimony affirming only one legally authorized program. Furthermore, Defendants' assertion that the program was designed solely for High-Value Detainees (HVDs) is challenged by Jessen's testimony that terminology evolved, and he also worked with Medium-Value Detainees (MVDs). The classification of detainees is deemed arbitrary and speculative, as demonstrated by Plaintiff Salim's changing designations. Defendants argue there is no factual link between the Enhanced Interrogation Techniques (EITs) they proposed and those used on Plaintiffs, but evidence suggests similarities between the techniques. The Ninth Circuit has not clarified whether the necessary mens rea involves knowledge or purpose regarding the facilitation of a crime. However, evidence indicates that Defendants designed EITs for detainees and had knowledge of their intended use. The question of whether Defendants acted with the purpose of facilitating a criminal act remains ambiguous due to conflicting testimony on their beliefs and reliance on legal opinions. Regarding actus reus, a jury could determine that Defendants provided substantial assistance by designing EITs and testing them on detainees like Abu Zubaydah and Rahman. The Ninth Circuit's precedent suggests that specific intent to harm is not required, focusing instead on the causal link between Defendants and the alleged crimes. Thus, a jury could find sufficient evidence of this link concerning Plaintiffs Salim and Soud.
The jury may find that the Defendants designed Enhanced Interrogation Techniques (EITs) specifically for foreign detainees held by the CIA, tested these techniques on Abu Zubaydah, and were aware that EITs could be applied at COBALT. Jessen and Mitchell were present at COBALT in November 2002, where Jessen evaluated Rahman for EIT application. There is a possibility that the jury could determine the Defendants knew other individuals besides High-Value Detainees (HVDs) were housed at COBALT. It is undisputed that EIT Guidelines, based on the Defendants' techniques, were disseminated to all CIA locations, including COBALT, and that all personnel involved in interrogations were required to review these guidelines. The Defendants argue they were unaware that the guidelines were sent to COBALT, which they claim breaks the causal chain necessary for establishing actus reus. However, a jury could conclude that they should have known, especially with Salim and Soud arriving in 2003, potentially establishing a sufficient actus reus for liability.
The Defendants attempt to downplay their involvement, claiming it was limited to suggesting potential EITs and providing a list of techniques already known through the Air Force SERE program. This assertion is considered misleading, as evidence indicates they not only suggested EITs but also employed them on Zubaydah, interrogated Rahman, and participated in the program for several years. The determination of aiding and abetting liability may hinge on whether the EITs constituted torture. The Defendants claim that the general prohibition against torture does not apply to their EITs due to the lack of clear international norms at the time.
The Defendants reference the case of Padilla v. Yoo, where it was determined that the treatment alleged by Padilla did not meet the legal definition of torture as understood during 2001-2003, thus granting qualified immunity to Yoo. Despite similarities in treatment, Padilla's claims did not include specific techniques such as waterboarding or extreme sleep deprivation, which were recognized in the Bybee Memo as potentially torturous.
Courts employ a totality-of-the-circumstances approach to assess whether torture has occurred, evaluating the full context of actions taken. The use of waterboarding is identified as a threat of imminent death. A May 10, 2005 DOJ/OLC Memo by Steven Bradbury asserts that torture contradicts American laws and international standards, with widespread condemnation reflected in both criminal law and international treaties. The Memo raises "substantial questions" regarding the use of waterboarding and sleep deprivation as forms of torture, noting that sleep deprivation could cause significant physical distress. Despite these concerns, the Memo concludes that neither technique, considered alone, would violate U.S. laws against torture, as defined by Title 18 U.S.C. § 2340.
On the issue of aiding and abetting torture under the Alien Tort Statute (ATS), the court finds that neither party has sufficiently shown a lack of material factual dispute, resulting in the denial of both the Defendants’ motion for summary judgment and the Plaintiffs’ motion for partial summary judgment. The Defendants seek to exclude the Senate Select Committee on Intelligence (SSCI) Report on the CIA's Detention and Interrogation Program, arguing it is hearsay and partisan. However, Plaintiffs counter that the report's factual findings are admissible under Federal Rule of Evidence 803(8)(A)(iii) and argue that the motion to exclude violates a prior court order regarding evidentiary issues. The court finds Defendants’ claims regarding the SSCI's investigation and report reliability unconvincing, noting that the declarations submitted by Rizzo and Rodriguez merely express opinions and lack factual support necessary for affidavits.
Participation in the Program by certain individuals indicates a lack of objectivity, as noted in Senator Ron Wyden's Declaration regarding the SSCI Report. This report, resulting from a five-year review of over six million documents—including interrogation logs and internal communications—was discussed by the D.C. Circuit Court in American Civil Liberties Union v. CIA. The court highlighted that in 2009, the Senate Committee decided to conduct a thorough review of the CIA's detention and interrogation program, facilitating access to classified information for Senators and their staff.
The completed SSCI Report, which spanned over 6,000 pages with an accompanying 500-page executive summary, followed extensive arrangements for access to classified materials. A draft of the report was shared with select Executive Branch individuals in December 2012 for feedback prior to finalization.
In the context of hearsay exceptions, the Seventh Circuit in Daniel v. Cook County noted that such reports are generally presumed admissible, with the burden on the party challenging their trustworthiness. Public officials are presumed to act without bias when producing these reports. A four-factor test for assessing the trustworthiness of public reports includes timeliness, the investigator's experience, the holding of hearings, and potential bias. Although some courts apply this test, it is not mandated. The court found the SSCI Report timely, as it was commissioned shortly after the Program's conclusion and completed in 2014 following a comprehensive investigation.
The Senate Select Committee on Intelligence (SSCI) is responsible for overseeing U.S. intelligence agencies and reporting findings to the Senate. Plaintiffs claim that the absence of hearings, due to the classified nature of information, undermines the credibility of the SSCI Report; however, the court disagrees, noting that partial redaction does not inherently render a report untrustworthy, referencing United States v. The Boeing Company as precedent. The court also dismisses allegations of partisanship affecting the SSCI Report's trustworthiness, highlighting that the study of the CIA’s detention and interrogation program received bipartisan approval. The SSCI Report's reliability remains intact despite dissent from some committee members. Consequently, the court denies the motion to exclude references to the SSCI Report from the summary judgment record, allowing for a potential renewal of the motion at trial.
Defendants argue that parts of the SSCI Report lack the factual findings required for admissibility under Rule 803; however, the Supreme Court's decision in Beech Aircraft Corp. v. Rainey supports the inclusion of factually based opinions. The court emphasizes that the admissibility of such reports is broad and allows for opposing evidence to challenge those conclusions.
In conclusion, the court finds that the Defendants' arguments regarding political questions, derivative sovereign immunity, and the extraterritorial application of the Alien Tort Statute (ATS) largely fail, as the Plaintiffs have presented supporting evidence for their claims. The court maintains the "touch and concern" test from Kiobel and Doe I v. Nestle as the governing standard for ATS jurisdiction, rejecting the "focus test" from other circuits but indicating it would still be satisfied if applied.
Evidence supports a finding that Defendants aided and abetted a program from the United States. The issue of aiding and abetting liability under the Alien Tort Statute (ATS) involves complex legal and factual questions, with neither party demonstrating that a judgment as a matter of law is warranted. The court issued several orders: 1. Denied Defendants’ Motion for Summary Judgment; 2. Denied Defendants’ Motion to Exclude the SSCI Report; 3. Denied Plaintiffs’ Motion for Partial Summary Judgment; 4. Scheduled a pretrial conference for August 21, 2017, at 10:00 a.m. in Spokane, Washington, with a jury trial commencing on September 5, 2017; 5. Kept all pretrial deadlines intact, except for extending the trial brief deadline to August 25, 2017, at 4:00 p.m. The Clerk is instructed to enter this Order and distribute copies to counsel. Obaid Ullah represents the Estate of Gul Rahman, and COBALT is identified as a CIA prison in Afghanistan. The Complaint specifies March 2003, while the Statement of Facts only states 2003, a point raised in a recent Motion in Limine that will be addressed at the Pretrial Conference.
