Case 2:15-cv-00286-JLQ Document 1 Filed 10/13/15

1 La Rond Baker, WSBA No. 43610 2 lbaker@aclu-wa.org
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 3 901 Fifth Avenue, Suite 630 4 Seattle, WA 98164
Phone: 206-624-2184
5
6 Steven M. Watt (pro hac vice pending) Dror Ladin (pro hac vice pending)
7 Hina Shamsi (pro hac vice pending) 8 Jameel Jaffer (pro hac vice pending)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION 9 125 Broad Street, 18th Floor 10 New York, New York 10004

11 Paul Hoffman (pro hac vice pending) 12 Schonbrun Seplow Harris & Hoffman, LLP
723 Ocean Front Walk, Suite 100 13 Venice, CA 90291
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Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON
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18 SULEIMAN ABDULLAH SALIM, MOHAMED AHMED BEN SOUD, OBAID
19 ULLAH (AS PERSONAL 20 REPRESENTATIVE OF GUL RAHMAN),

Civil Action No.

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Plaintiffs,

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v.
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24 JAMES ELMER MITCHELL and JOHN 25 “BRUCE” JESSEN

2:15-CV-286-JLQ
COMPLAINT AND DEMAND FOR JURY TRIAL

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Defendants.

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I. INTRODUCTION

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1. Defendants James Elmer Mitchell and John “Bruce” Jessen are
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psychologists who designed, implemented, and personally

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administered an experimental torture program for the U.S. Central

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Intelligence Agency (“CIA”).
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2. To create a torture program with a scientific veneer, Defendants drew

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on experiments from the 1960s in which researchers taught dogs

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“helplessness” by subjecting them to uncontrollable pain. Defendants
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theorized that if human beings were subjected to systematic abuse, the

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victims would become helpless and unable to resist an interrogator’s

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demand for information. The CIA adopted Defendants’ approach and
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paid Defendants to devise, supervise, refine, and evaluate the resulting

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torture program. With Defendants’ support, the CIA sought and

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obtained authorization from U.S. government agencies and officials
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for use of torture and cruel methods, and, over time, for the program’s

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continuation and expansion.

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3. Plaintiffs Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud

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were kidnapped by the CIA and tortured and experimented upon in

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accordance with Defendants’ protocols. They were subjected to

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solitary confinement; extreme darkness, cold, and noise; repeated

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beatings; starvation; excruciatingly painful stress positions; prolonged
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sleep deprivation; confinement in coffin-like boxes; and water torture.

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Plaintiffs Salim and Ben Soud suffered lasting psychological and

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physical damage from this torture. Gul Rahman was tortured in many
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of the same ways, including after Defendant Jessen trained and

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supervised CIA personnel to apply these methods. Shortly after that

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training, Mr. Rahman died as a result of hypothermia caused by his
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exposure to extreme cold, exacerbated by dehydration, lack of food,

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and his immobility in a stress position. His family has never been

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officially notified of his death and his body never returned to them.
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4. Plaintiffs Salim, Ben Soud, and Mr. Obaid Ullah on behalf of Mr.

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Rahman’s estate bring this action against Defendants for their

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commission of torture, cruel, inhuman, and degrading treatment; non-
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consensual human experimentation; and war crimes, all of which

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violate well-established norms of customary international law.

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II. JURISDICTION AND VENUE

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5. This Court has jurisdiction over this action pursuant to 28 U.S.C.
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§ 1331 (federal question); 28 U.S.C. § 1332 (diversity jurisdiction);

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and 28 U.S.C. § 1350 (Alien Tort Statute).

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6. This Court has personal jurisdiction over Defendant John “Bruce”
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Jessen because he is domiciled in Spokane, Washington.

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7. This Court has personal jurisdiction over Defendant James Elmer

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Mitchell because these causes of action arise from or are connected
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with his extensive business activities and residence in Washington

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State.

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8. Venue is proper pursuant to 28 U.S.C. § 1391(b)(3).
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III. PARTIES

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9. Plaintiff Suleiman Abdullah Salim is a Tanzanian citizen. In March

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2003, the CIA and Kenyan Security Forces captured Mr. Salim in
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Somalia, where he was working as a fisherman and trader, and

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rendered him to Kenya. From there the CIA rendered Mr. Salim to an

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Agency prison in Afghanistan, referred to in an official U.S.
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government report as COBALT. Mr. Salim was held at COBALT

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from March 2003 until May 2003. He was then transferred to a second

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CIA prison in Afghanistan, referred to as the “Salt Pit,” where he was

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held for 14 months. In July 2004, Mr. Salim was transferred from the
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custody of the CIA to the custody of the U.S. military and held at a

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prison at Bagram Air Force Base in Afghanistan for four years. He

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was released from U.S. custody on August 17, 2008 and given a
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memorandum from the U.S. Department of Defense stating that he

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“has been determined to pose no threat to the United States Armed

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Forces or its interests in Afghanistan.” The U.S. government has
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never charged Mr. Salim with any crime. He currently lives in

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Zanzibar with his wife and their three-year-old daughter.

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10. Plaintiff Mohamed Ahmed Ben Soud (formerly Mohamed Shoroeiya,
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Abd al-Karim) is a Libyan citizen. In April 2003, U.S. and Pakistani

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forces captured Mr. Ben Soud in Pakistan, where he was living in exile

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from Muammar Gaddafi’s regime. The CIA rendered him to
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COBALT. Mr. Ben Soud was held at COBALT for a year, until April

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2004. He was then transferred to a second CIA prison, where he was

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held for 16 months, until August 2005. The U.S. government has
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never charged Mr. Ben Soud with any crime. In August 2005, the CIA

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rendered Mr. Ben Soud to Libya, where he was imprisoned by

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Gaddafi’s regime for over five years. Mr. Ben Soud was released from

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prison on February 16, 2011, following the overthrow of Gaddafi. Mr.
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Ben Soud lives in Misrata, Libya, with his wife and their three

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children.

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11. Plaintiff Obaid Ullah is an Afghan citizen and the personal
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representative of the estate of Gul Rahman. Mr. Rahman was also an

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Afghan citizen. In 2002, Mr. Rahman and his family were living as

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refugees in the Shamshato Refugee Camp, Peshawar, Pakistan. On or
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around November 5, 2002, the CIA captured Mr. Rahman in

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Islamabad, Pakistan, where he had gone for a medical checkup, and

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rendered him to COBALT. On November 20, 2002, Mr. Rahman was
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tortured to death. Mr. Rahman is survived by his wife and four

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daughters.

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12. Defendant James Elmer Mitchell is a U.S. citizen and a psychologist.
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Defendant Mitchell was the chief psychologist at the U.S. Air Force

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Survival, Evasion, Resistance and Escape (“SERE”) training program,

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Fairchild Air Force Base, Washington. From 2001 to 2005, Defendant
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Mitchell worked as an independent contractor for the CIA. From 2005

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to 2009, Defendant Mitchell was the Chief Executive Officer of a

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company he co-founded, Mitchell, Jessen & Associates, with corporate

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headquarters and offices in Spokane, Washington, through which he
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worked under contract to the CIA.

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13. Defendant John “Bruce” Jessen is a U.S. citizen and a psychologist.

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Defendant Jessen was the chief psychologist for the Department of
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Defense Joint Personnel Recovery Agency, which oversees all four of

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the SERE training programs, serving there until 2002. From 2002 to

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2005, Defendant Jessen worked as an independent contractor for the
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CIA. From 2005 to 2009, Defendant Jessen was the President of a

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company he co-founded, Mitchell, Jessen & Associates, with corporate

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headquarters and offices in Spokane, Washington, through which he
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worked under contract to the CIA.

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IV. LEGAL FRAMEWORK

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14. The Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, enacted in 1789,
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permits non-citizens to bring suit in U.S. courts for violations of the

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law of nations or a treaty of the United States. Under the ATS, federal

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courts are authorized to recognize a common law cause of action for
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violations of clearly defined, widely accepted human rights norms.

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Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The ATS extends

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jurisdiction to federal courts to adjudicate non-citizens’ claims for

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violation of those international law norms when the claims “touch and
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concern the territory of the United States.” Kiobel v. Royal Dutch

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Petroleum Co., 133 S. Ct. 1659, 1669 (2013).

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15. Defendants’ conduct described herein constitutes (1) torture and cruel,
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inhuman, and degrading treatment; (2) non-consensual human

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experimentation; and (3) war crimes, all of which are violations of

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“specific, universal, and obligatory” international law norms, as
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evidenced by numerous binding international treaties, declarations, and

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other international law instruments. Sosa, 542 U.S. at 732.

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Accordingly, Defendants’ conduct is actionable under the ATS.
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16. Defendants Mitchell and Jessen are liable because they directly violated

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these prohibitions while acting under color of law.

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17. Defendants Mitchell and Jessen are also liable because they conspired
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with the CIA in violating these international law norms, or committed

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those violations as part of a joint criminal enterprise with the Agency,

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and aided and abetted the CIA in their commission.
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18. This Court has jurisdiction under the ATS to adjudicate Plaintiffs’

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claims because they touch and concern the territory of the United
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States. For example:

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• Defendants Mitchell and Jessen are U.S. citizens;

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• Defendants Mitchell and Jessen are domiciled in the United States;
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• Defendants Mitchell and Jessen devised their torture plan in the

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United States;

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• Defendants Mitchell and Jessen supervised their plan’s
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implementation from the United States, including pursuant to contracts

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they executed with the CIA in the United States;

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• Defendants Mitchell and Jessen participated in and oversaw
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Plaintiffs’ torture and cruel, inhuman, and degrading treatment; non-

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consensual human experimentation; and war crimes while Plaintiffs

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were held in the custody and control of the CIA in detention facilities
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operated by the U.S. government.

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19. Congress’s express intent in enacting the ATS was to give non-citizens

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access to U.S. courts to hold U.S. citizens accountable for violations of
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international law norms that “touch and concern” the United States, as

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Defendants’ actions do.

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V. FACTUAL ALLEGATIONS

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GENERAL FACTS
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20. Defendants’ design and implementation of, and personal participation

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in, the experimental CIA torture program is documented in, inter alia,

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official government reports, Congressional testimony, Defendant
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Mitchell’s own public admissions, and investigative reports by the

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media and non-governmental organizations. Official and public

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government reports documenting Defendants’ role include the CIA’s
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June 2013 Response to the Senate Select Committee on Intelligence’s

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Study on the Former Detention and Interrogation Program (June 27,

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2013) (“CIA June 2013 Response”); CIA Office of Inspector General
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Special Review of Counterterrorism Detention and Interrogation

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Activities (Sept. 2001 – Oct. 2003) (May 7, 2004) (“CIA OIG

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Report”); the Senate Committee on Armed Services Inquiry into the
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Treatment of Detainees in U.S. Custody (Nov. 20, 2008) (“SASC

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Report”); and the report of the Department of Justice’s Office of

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Professional Responsibility Investigation into the Office of Legal
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Counsel’s Memoranda Concerning Issues Relating to the Central

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Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on

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Suspected Terrorists (July 2009).
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21. Defendants’ central role in devising and administering the CIA’s

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torture program is also detailed in the Executive Summary of the

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Senate Select Committee on Intelligence (“SSCI”) Study of the CIA’s
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Detention and Interrogation Program (“SSCI Report”), which was

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publicly released on December 9, 2014. The report also identifies

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Plaintiffs by name as three of the 39 named victims and survivors of
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Defendants’ “enhanced interrogation techniques.” The SSCI Report

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“is the most comprehensive review ever conducted” of the CIA’s

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detention and interrogation program, and is based on six million pages
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of material, including “CIA operational cables, reports, memoranda,

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intelligence products, and numerous interviews conducted of CIA

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personnel by various entities within the CIA…as well as internal email
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and other communications.” SSCI Report 9.

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Defendants Devise a Torture Program for the CIA.

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22. Defendants Mitchell and Jessen laid the foundations for the CIA’s use

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of torture in or around December 2001 when, at the request of the

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Agency, they collaborated in reviewing a document known as the

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“Manchester Manual.” The Manual was found by the Manchester

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(England) Metropolitan Police during a search of an alleged al-Qa’ida
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member’s home. The CIA assessed the Manchester Manual to be an

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al-Qa’ida document that included strategies to resist interrogation.

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23. The CIA requested Defendant Mitchell’s review of the Manchester
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Manual. Defendant Mitchell collaborated with Defendant Jessen to

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provide the review, even though neither Mitchell nor Jessen “had

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experience as an interrogator, nor did either have specialized
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knowledge of al-Qa’ida, a background in terrorism, or any relevant

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regional, cultural, or linguistic expertise.” SSCI Report 21. The

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Agency thought Defendants had expertise in “non-standard means of
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interrogation.” SSCI Report 32 n. 138 (citing CIA June 2013

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Response 49). It conducted no research on the theory and practice of

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traditional, non-coercive interrogation methods.
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24. Defendants Mitchell and Jessen produced a white paper for the CIA

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entitled Recognizing and Developing Countermeasures to Al-Qa’ida

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Resistance to Interrogation Techniques: A Resistance Training
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Perspective. In it, Defendants told the CIA that the Manchester

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Manual was evidence that al-Qa’ida members were trained to resist

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interrogation, elaborated on their purported resistance capabilities, and

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proposed countermeasures that could be employed to defeat that
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resistance. SASC Report 7.

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25. Defendants proposed a pseudoscientific theory of countering resistance

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that justified the use of torture and other forms of cruel, inhuman, and
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degrading treatment. Their theory relied on the work of psychologist

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Dr. Martin Seligman, who in the 1960s pioneered studies on a concept

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called “learned helplessness.” In his experiments, Dr. Seligman
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restrained dogs and subjected them to random and repeated electric

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shocks. Dogs that could not control or influence their suffering in any

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way “learned” to become helpless, collapsing into a state of passivity.
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Dr. Seligman found that if a researcher inflicted uncontrollable pain on

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a dog for a long enough period, the animal abandoned any attempt to

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escape its confinement or avoid further pain, even if given the
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opportunity.

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26. Defendants hypothesized that they could “counter” any resistance to

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interrogation on the part of detainees by inducing the same state of
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“learned helplessness” in humans that Seligman had induced in dogs.

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They proposed that interrogators induce “learned helplessness” in

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people suspected of withholding information by confining them under

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physically and psychologically abusive conditions and further abusing
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them using coercive techniques. Defendants theorized that detainees

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would become passive, compliant, and unable to resist their

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interrogators’ demands for information.
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27. Defendants subsequently devised and proposed coercive methods and

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conditions of detention that bore a distant resemblance to training

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techniques they had used as instructors in the SERE training programs.
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As part of the SERE program, military personnel volunteer for training

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to resist abusive interrogation in the event of capture by an enemy that

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does not abide by the Geneva Conventions and other international laws
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prohibiting torture and other forms of cruel, inhuman, or degrading

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treatment. Defendants, who had no experience with real-life

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interrogations, relied on their experience with SERE training at
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Fairchild Air Force Base to create and justify the torture program.

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28. All SERE training programs incorporate strict physical and

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psychological safeguards to protect students from harm, including
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“medical and psychological screening for students, interventions by

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trained psychologists during training, and code words to ensure that

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students can stop the application of a technique at any time should the

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need arise.” SASC Report xxvi. A declassified version of the SERE
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training manual specifically requires that “[m]aximum effort will be

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made to ensure that the students do not develop a sense of ‘learned

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helplessness’” during training.
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29. Because Defendants’ very purpose was to induce “learned

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helplessness,” the abusive methods that they devised and proposed to

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apply to CIA prisoners incorporated none of the SERE-school
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controls.

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30. Defendants’ hypothesis became the basis for the experimental tortures

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that they and the CIA inflicted on prisoners. In a memorandum dated
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December 30, 2004, the CIA confirmed to the Department of Justice

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Office of Legal Counsel (“OLC”) that “[t]he goal of interrogation is to

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create a sense of learned helplessness and dependence conducive to the
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collection of intelligence in a predictable, reliable, and sustainable

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manner. . . . it is important to demonstrate to the [detainee] that he has

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no control over basic human needs.” Defendants’ experimental
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“learned helplessness” model remained a key feature of the CIA’s

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torture program from its inception to its end in 2009. SSCI Report

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484–487.
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Defendants test, apply, and refine torture.

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31. In late March 2002, the CIA and Pakistani government authorities

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captured Zayn al-Abidin Muhammad Husayn, also known as Abu
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Zubaydah. The CIA rendered Abu Zubaydah to Thailand. Initially

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Abu Zubaydah was hospitalized for serious gunshot wounds to his

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thigh, groin, and stomach sustained during his capture, and from April
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15, 2002, he was held at a CIA black-site prison referred to as GREEN

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in the SSCI Report.

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32. Before the CIA conducted any meaningful assessment of Abu
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Zubaydah’s level of cooperation, on April 1, 2002, it contracted with

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Defendant Mitchell to “provide real-time recommendations to

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overcome Abu Zubaydah’s resistance to interrogation.” SSCI Report
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26. That same evening, Mitchell, “who had never conducted an actual

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interrogation, encouraged the CIA to focus on developing ‘learned

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helplessness’ in CIA detainees.” SSCI Report 463–464.
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33. Even as Mitchell and the CIA were considering Abu Zubaydah’s

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torture, FBI agents with interrogation experience and Arabic language

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skills were interviewing him in the hospital using non-coercive,

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rapport-building interrogation methods. “Abu Zubaydah confirmed
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his identity to the FBI officers, informed the FBI officers he wanted to

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cooperate, and provided background information on his activities.”

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SSCI Report 25. FBI agents continued to obtain information from
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Abu Zubaydah while he was hospitalized. FBI agents assisted in Abu

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Zubaydah’s medical care and remained at his bedside to establish trust

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and rapport.
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34. On the assumption that Abu Zubaydah was withholding information,

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Mitchell recommended that Abu Zubaydah be “kept in an all-white

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room that was lit 24 hours a day, that Abu Zubaydah not be provided
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any amenities, that his sleep be disrupted, that loud noise be constantly

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fed into his cell, and that only a small number of people interact with

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him.” SSCI Report 26. The CIA ultimately adopted this
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recommendation. In early April 2002, CIA Headquarters sent Mitchell

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to GREEN to consult on the psychological aspects of Abu Zubaydah’s

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interrogation.
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35. In the first two weeks of April 2002, an interagency conflict developed

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between the CIA and FBI over whether Abu Zubaydah should be

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tortured. “In a message to FBI Headquarters, an FBI special agent

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wrote that the CIA psychologists had acquired ‘tremendous
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influence.’” SSCI Report 27. The conflict was resolved when the

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White House transferred full responsibility for Abu Zubaydah’s

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continued interrogation to the CIA.
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36. Once in control of the interrogation, Defendant Mitchell seized the

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opportunity to test Defendants’ theory on Abu Zubaydah. Defendants

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would go on to document their methods meticulously.
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Phase I: “Setting the conditions” for “learned helplessness”

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37. While Abu Zubaydah was still hospitalized, Mitchell and the rest of

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the CIA interrogation team implemented their “new interrogation
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program.” SSCI Report 27.

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38. The program began by setting abusive conditions that were specifically

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intended to “enhance[] the strategic interrogation process” through
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“psychological disorientation,” and to increase Abu Zubaydah’s “sense

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of learned helplessness.” SSCI Report 26 n. 94. On April 15, 2002,

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pursuant to Defendant Mitchell’s scripted plan, Abu Zubaydah was
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sedated and moved from the hospital where he was still recovering

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from his injuries to a tiny cell in GREEN. He was stripped naked and

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held in solitary confinement. His cell was brightly lit with four

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halogen lights 24 hours a day. The cell’s temperature was kept
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extremely cold and he was constantly bombarded with either loud rock

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music or discordant noise. Throughout, he was kept shackled to one of

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two chairs in his cell, and only unchained long enough to let him use
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the toilet, which was a bucket in the cell. His diet was restricted to

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minimal sustenance. He was continuously deprived of sleep;

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whenever he started to fall asleep, one of his guards sprayed water in
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his face to wake him. He was continually and repeatedly interrogated

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while held under these conditions for the next two to three weeks.

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39. At the end of April 2002, assessing Abu Zubaydah to still be
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uncooperative, Defendant Mitchell and the rest of the CIA

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interrogation team at GREEN provided CIA Headquarters with three

18
strategies for obtaining information from him. CIA Headquarters
19

20

chose the most coercive option, which had been proposed by Mitchell.

21

40. In early June 2002, Defendant Mitchell and the other members of the

22
CIA interrogation team at GREEN proposed that Abu Zubaydah be
23

24

subjected to several weeks of isolation, in part to keep him “off-

25

balance” and so the interrogation team could discuss the “endgame”

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for him with CIA Headquarters. SSCI Report 30. CIA Headquarters

2
agreed and Abu Zubaydah was held in complete isolation without
3

4

being asked any questions for 47 days, from June 18 to August 4,

5

2002.

6

Phase II: “Aggressive phase” of torture and cruel, inhuman, and

7

degrading treatment

8
41. In July 2002, Defendant Mitchell and the CIA assessed Abu Zubaydah
9

10

as “uncooperative,” and decided that additional coercive measures

11

were required for him to become “compliant” and reveal the

12
information the CIA believed he was withholding. SSCI Report 31.
13

14

Based in part on a psychological evaluation Defendant Mitchell

15

conducted of Abu Zubaydah, Defendant Mitchell proposed a new

16
“aggressive phase” of Abu Zubaydah’s torture during which he would
17

18

be subjected to a regime of 12 highly coercive methods that

19

Defendants had devised. SSCI Report 42.

20
42. Also in July 2002, on Defendant Mitchell’s recommendation, the CIA
21

22

contracted with Defendant Jessen to join Defendant Mitchell to assist

23

him in testing and developing the Defendants’ theory on Abu

24

25

Zubaydah.

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43. Working with the CIA, Defendants helped convince Justice

2
Department lawyers to authorize specific coercive methods that
3

4

Mitchell had initially proposed for use on Abu Zubaydah. These

5

methods included: (1) the attention grasp, (2) walling, (3) facial hold,

6
(4) facial slap, (5) cramped confinement, (6) wall standing, (7) stress
7

8

positions, (8) sleep deprivation, (9) waterboard, (10) use of diapers,

9

(11) use of (non-stinging) insects, and (12) mock burial. SSCI Report

10
31–32. The CIA agreed to propose all but the “mock burial” technique
11

12

to the Attorney General and OLC.

13

44. On July 24, 2002, the Attorney General gave his verbal approval to all

14
of the proposed methods except the waterboard. Defendants and the
15

16

CIA interrogation team stated that they would not proceed until the

17

Attorney General also approved use of the waterboard. Defendants

18
asserted that the waterboard was an “absolutely convincing technique,”
19

20

necessary for use on Abu Zubaydah. SSCI Report 36. On July 26,

21

2002, the Attorney General approved the use of the waterboard.

22

23

45. On August 1, 2002, OLC authorized the use of every method the CIA

24

proposed, except that it did not address the diapering technique. The

25

methods OLC authorized, together with others that were subsequently

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devised, developed and refined by Mitchell and Jessen, were referred

2
to as “enhanced interrogation techniques.”
3

4

46. On August 4, 2002, Defendants Mitchell and Jessen began what they

5

and the CIA referred to as the “aggressive phase” of Abu Zubaydah’s

6
torture. Defendants personally conducted or oversaw this phase,
7

8

subjecting Abu Zubaydah to a combination of the 10 coercive methods

9

on a near 24-hour basis until August 23, 2004. The abusive

10
“conditions” of Abu Zubaydah’s detention—combining prolonged
11

12

solitary confinement, sensory bombardment by light and sound, use of

13

extreme temperature, nudity, sleep deprivation and dietary

14
restrictions—remained in place for the duration of this phase.
15

16

47. At approximately 11:50 a.m. on August 4, security personnel entered

17

Abu Zubaydah’s cell, shackled and hooded him, and removed his

18
towel, leaving him naked. Without asking any questions, Mitchell and
19

20

Jessen then placed a rolled towel around his neck like a collar and

21

slammed him against a concrete wall. They removed his hood and

22
performed an “attention grab” on him, directing his face toward a
23

24

coffin-like box. SSCI Report 41.

25

48. Defendants Mitchell and Jessen subjected Abu Zubaydah to “cramped

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confinement” in two boxes that they had designed. Defendants forced

2
Abu Zubaydah inside the larger of the two boxes, which was coffin-
3

4

sized, for several hours before forcing him inside the second,

5

significantly smaller, box, which measured 2.5 foot square and 21

6
inches deep. In the smaller box, Zubaydah was made to squat in a
7

8

fetal position, reopening the stomach wounds he had sustained at the

9

time of his capture. When Abu Zubaydah was inside each box, a

10
heavy cloth was draped over the outside to block any light, increase
11

12

the temperature inside, and restrict the air supply.

13

49. Once Abu Zubaydah was removed from the smaller confinement box,

14
Defendants Mitchell and Jessen again subjected him to repeated wall
15

16

slamming. In between, they shouted questions at him, demanding

17

information on terrorist operations planned against the United States.

18
SSCI Report 41. Each time Abu Zubaydah denied having the
19

20

information, Defendants beat him severely around his face and torso,

21

using the facial slap, abdominal slap and facial grab techniques.

22
Defendants repeatedly employed this routine for some six and a half
23

24

hours on the first day of the “aggressive phase.”

25

50. At approximately 6:20 p.m. on the first day, Defendants Mitchell and

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Jessen introduced the “waterboard” into the regimen. Defendants

2
conducted two to four waterboard sessions daily in this same manner.
3

4

In total they waterboarded Abu Zubaydah 83 times in August 2002

5

alone.

6
51. Over approximately three subsequent weeks, Defendants Mitchell and
7

8

Jessen continued to subject Abu Zubaydah to walling, facial and

9

abdominal slaps, the facial hold, stress positions, cramped confinement

10
in stress positions (in the large and small boxes), prolonged sleep
11

12

deprivation, and waterboarding repeatedly and in varying

13

combinations on a near 24-hour basis.

14
52. During this period and as a result of Defendants’ methods, Abu
15

16

Zubaydah, “cried,” “begged,” “pleaded,” “whimpered,” became

17

“hysterical” and “distressed to the level that he was unable to

18
effectively communicate.” He became “compliant” to the extent that
19

20

when an interrogator “raised his eyebrow, without instructions,” Abu

21

Zubaydah “slowly walked on his own to the water table and sat down.”

22
When the interrogator “‘snapped his fingers twice,’ Abu Zubaydah
23

24

would lie flat on the waterboard.” SSCI Report 42–43.

25

53. In an email dated August 21, 2002, discussing their waterboarding of

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Abu Zubaydah, Defendants wrote, “As for our buddy; he capitulated

2
the first time. We chose to expose him over and over until we had a
3

4

high degree of confidence he wouldn’t hold back. He said he was

5

ready to talk during the first exposure.” SSCI Report 471 n. 2578.

6
54. Some contemporary CIA observers of Defendants’ methods were
7

8

“disturbed” by what they saw and concerned about consequences. A

9

few days into the “aggressive phase,” “[s]everal on the team [were]

10
profoundly affected . . . some to the point of tears and choking up.”
11

12

SSCI Report 44. Others were concerned that Abu Zubaydah would die

13

from Defendants’ methods, and videotaped his interrogation in an

14
attempt to protect themselves from legal liability. The CIA later
15

16

destroyed those tapes.

17

55. On August 23, 2002, the “aggressive phase” of Abu Zubaydah’s

18
torture stopped. Defendants told the CIA it was a “success” because
19

20

they could “confidently assess that he does not/not possess undisclosed

21

threat information, or intelligence that could prevent a terrorist event.”

22
SSCI Report 46. Defendants explained: “Our goal was to reach the
23

24

stage where we have broken any will or ability of subject to resist or

25

deny providing us information (intelligence) to which he had access.”

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Id.

2
56. Defendants recommended to the CIA that “‘the aggressive phase . . .
3

4

should be used as a template for future interrogation of high value

5

captives.’” SSCI Report 46. Presumably referring to themselves,

6
Defendants recommended that psychologists “‘familiar with
7

8

interrogation, exploitation and resistance to interrogation should shape

9

compliance of high value captives prior to debriefing by substantive

10
experts.’” Id.
11

12

57. Using their torture of Abu Zubaydah as a model, Defendants

13

developed a phased program to induce “learned helplessness” in CIA

14
captives through the infliction of severe physical and mental pain and
15

16

suffering. Defendants “largely devised the CIA enhanced

17

interrogation techniques,” SSCI 471 n.2578, including by designing

18
instruments of torture such as confinement boxes. They standardized,
19

20

refined and recalibrated their methods over time.

21

58. Defendants and the CIA collaborated in applying their coercive

22
methods to varying degrees as they deemed necessary for individual
23

24

prisoners. In the phased program, Defendants designated coercive

25

conditions and methods as either “standard”/“conditioning” or

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“enhanced”/“aggressive,” depending on the perceived degree of

2
physical or psychological coercion applied to prisoners.
3

4

59. Defendants’ first phase “set the conditions” for inducing a state of

5

“learned helplessness” in CIA captives. Abusive “conditions” in this

6
phase began as soon as persons were captured and rendered by the
7

8

CIA to its black site prisons. Conditions during rendition included

9

sensory manipulation and humiliation to create “significant

10
apprehension” and “dread.” Memorandum from CIA to OLC,
11

12

Background Paper on CIA’s Combined Use of Interrogation

13

Techniques (Dec. 30, 2004). This “conditioning” phase was continued

14
once captives were imprisoned at CIA black sites. Prisoners there
15

16

were subjected to some or all of: solitary confinement; constant

17

extreme light or darkness; the perpetual loud playing of music or white

18
noise; extreme temperatures; forced nudity or dressing solely in
19

20

diapers; restrictions on food and water; shackling in painful stress

21

positions; and prolonged sleep deprivation. Some or all of these

22
confinement conditions remained in place for the duration of
23

24

prisoners’ confinement and interrogation, including during any second

25

“aggressive” phase of interrogation and after.

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60. The conditions at COBALT, where all three Plaintiffs were held,

2
conformed to Defendants’ first phase. In April 2003, the CIA’s chief
3

4

of interrogations explained that COBALT was “good for interrogations

5

because it is the closest thing he has seen to a dungeon, facilitating the

6
displacement of detainee expectations.” SSCI Report 50 n.240.
7

8

“[D]etainees were kept in total darkness. The guards monitored

9

detainees using headlamps and loud music was played constantly in

10
the facility. While in their cells, detainees were shackled to the wall
11

12

and given buckets for human waste.” SSCI Report 49. A CIA

13

interrogator at COBALT during that time stated that detainees

14
“‘literally looked like a dog that had been kenneled.’ When the doors
15

16

to their cells were opened, ‘they cowered.’” SSCI Report 50 n.240.

17

61. If Defendants and the CIA assessed a prisoner as “resistant” after the

18
first phase, they progressed to the second, the “aggressive phase,” and
19

20

used some or all of the coercive methods Defendants had initially

21

tested on Abu Zubaydah. These methods were applied repeatedly, in

22
combination, and in escalating fashion, until Defendants and the CIA
23

24

assessed a prisoner psychologically broken.

25

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62. Defendants trained and supervised CIA personnel in applying their

2
phased torture program. For example, in November 2002, Defendant
3

4

Jessen traveled to COBALT for approximately a week to assess the

5

“resistance” of prisoners to interrogation and determine whether they

6
should be subjected to the “aggressive phase” of the program. While
7

8

there, he instructed and trained CIA personnel in assessing prisoners’

9

“resistance” and in using coercion on them. Among the CIA personnel

10
Jessen trained and supervised was the officer then in charge of
11

12

COBALT, referred to in the SSCI Report as “CIA Officer 1.”

13

63. Together with the CIA, Defendants supervised and oversaw the

14
implementation of Defendants’ experiment. Because the program’s
15

16

underlying theories had never been tested on actual prisoners before,

17

Defendants and the CIA experimented on individual prisoners to

18
assess whether: (1) they had been tortured long enough to induce a
19

20

state of “learned helplessness” or additional torture was necessary; (2)

21

certain combinations and sequences of torture techniques were most

22
effective at overcoming “resistance”; and (3) prisoners became fully
23

24

compliant with their interrogators’ demands once they had been

25

reduced to a state of learned helplessness.

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64. Defendants’ role in assessing and evaluating their torture experiment

2
gave rise to significant conflicts of interest. In January 2003, CIA
3

4

personnel expressed concerns over Defendants’ financial and ethical

5

conflicts of interest in employing coercive methods, assessing their

6
“effectiveness,” and being paid for both. They observed that “the
7

8

same individuals applied an EIT [Enhanced Interrogation Technique],

9

judged both its effectiveness and detainee resilience, and implicitly

10
proposed continued use of the technique—at a daily compensation” of
11

12

$1,800 a day, “or four times that of interrogators who could not use the

13

technique.” SSCI Report 66. The CIA has since acknowledged that

14
“the Agency erred in permitting [the Defendants] to assess the
15

16

effectiveness of enhanced techniques. They should not have been

17

considered for such a role given their financial interest in continued

18
contracts from CIA.” CIA June 2013 Response 49.
19

20

65. On May 31, 2015, Defendant Mitchell confirmed in an email to the

21

law firm Sidley Austin that he and Defendant Jessen were never fully

22
able to assess the effectiveness of their theory and coercive methods.
23

24

Their contract was terminated, he stated, before they were able “to find

25

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and pay an independent researcher, not involved with the program,” to

2
make a final assessment.
3

4

66. Defendants were compensated for and profited from their work with

5

and on behalf of the CIA. From 2001 to 2005, as independent

6
contractors to the CIA, Mitchell and Jessen each received $1,800 per-
7

8

day, tax free, amounting to $1.5 million and $1.1 million respectively.

9

67. In 2005, as the number of detainees in CIA custody grew, Defendants

10
formed a company, Mitchell, Jessen & Associates, with corporate
11

12

headquarters and offices in Spokane, Washington, to meet the CIA’s

13

increasing need for their services. Under Defendants’ direction and

14
control, Mitchell, Jessen & Associates provided security teams for
15

16

renditions, interrogators, facilities, training, operational psychologists,

17

de-briefers, and security personnel at all CIA detention sites. By April

18
2007, 11 out of 13 interrogators (85%) used by the CIA were directly
19

20

employed by Mitchell, Jessen & Associates. As of July 2007, the

21

company had between 55 and 60 employees.

22

23

68. Until the termination of its contract by the CIA in 2010, the Agency

24

paid Mitchell, Jessen & Associates $81 million to implement and assist

25

in rendition and coercive interrogation of CIA prisoners.

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69. Defendants and the CIA continued to use the phased torture program’s

2
most “aggressive” techniques until November 8, 2007. Defendants
3

4

and the CIA subjected at least 119 individuals to either the partial or

5

full phased program.

6
70. Plaintiffs are among 39 individuals who were experimented on and
7

8

subjected by Defendants and the CIA to the most coercive methods of

9

torture.

10
SPECIFIC ALLEGATIONS BY PLAINTIFFS
11

12

Suleiman Abdullah Salim

13

71. Suleiman Abdullah Salim was born in Stone Town, Zanzibar,

14
Tanzania in 1972. Mr. Salim left high school early to fish and trade
15

16

around the Swahili coast. In 2003, Mr. Salim settled in Mogadishu,

17

Somalia, and in March that year he married a Somali woman, Magida.

18
72. On or around March 15, 2003, agents from the CIA and the Kenyan
19

20

National Intelligence Service abducted Mr. Salim in Mogadishu. He

21

was rendered to Nairobi, Kenya, where he was secretly detained and

22
interrogated on a daily basis for some eight days by Kenyan
23

24

authorities. On or around March 23, 2003, Mr. Salim was transferred

25

to the exclusive custody and control of U.S. officials. Mr. Salim’s

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detention in Kenya and subsequent transfer to U.S. custody is

2
confirmed in public statements made at the time by Kenya’s then-
3

4

national security chief, Chris Murungaru.

5

73. The CIA rendered Mr. Salim to its COBALT black site prison in three

6
stages: from Kenya to a U.S. Air Base in Bossasso, Somalia; from
7

8

Bossasso to Djibouti; and, on or around March 26, 2003, from Djibouti

9

to COBALT.

10
74. During Mr. Salim’s custody by the CIA, he was experimented upon
11

12

and subjected to a regimen of torture and cruel, inhuman, and

13

degrading treatment in accordance with the phased torture program

14
that Defendants Mitchell and Jessen designed, supervised, and
15

16

implemented. Mr. Salim suffered coercion and abuse during his

17

rendition; torture, cruel, inhuman, and degrading treatment during his

18
confinement; and further torture and abuse through the application of
19

20

at least 8 of the 10 coercive methods Defendants devised for the

21

torture program: prolonged sleep deprivation (seating and standing),

22
walling, stress positions, facial slaps, abdominal slaps, dietary
23

24

manipulation, facial holds, and cramped confinement (large and small

25

boxes). In addition, Mr. Salim was subjected to prolonged nudity and

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to water dousing that approximated waterboarding. He was also

2
strapped to a waterboard and threatened with waterboarding. Some of
3

4

these methods were used on Mr. Salim repeatedly and in combination.

5

Phase I: “Setting the conditions” for “learned helplessness”

6
75. The CIA began its torture of Mr. Salim during his rendition, subjecting
7

8

him to severe physical and mental pain and suffering through

9

humiliation, extreme sensory deprivation, and other forms of abusive

10
treatment, in accordance with Defendant Mitchell and Jessen’s
11

12

specifications. CIA personnel first cut Mr. Salim’s clothes from his

13

body. Once he was naked, they forcibly inserted an object into his

14
anus, causing him excruciating pain. They photographed him; Mr.
15

16

Salim could sense the flash of a camera. He was then dressed in a

17

diaper, a pair of trousers, and a short-sleeved shirt. CIA personnel

18
stuffed earplugs in his ears, placed a hood over his head, and over
19

20

those, placed a pair of goggles and headphones. They cuffed and

21

shackled him. Disorientated and terrified, Mr. Salim was shoved

22
aboard a small aircraft, chained to the floor between two guards, and
23

24

flown some eight or more hours.

25

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76. Upon landing, CIA personnel unchained Mr. Salim, forced him off the

2
plane, and threw him into the back of a truck. He was pinned to the
3

4

floor on his stomach—with someone’s knee pressing into the small of

5

his back—and driven a short distance down a bumpy dirt track road.

6
Two large men then removed him from the truck and marched into a
7

8

nearby building, which was the CIA’s COBALT prison.

9

77. Mr. Salim was detained at COBALT for approximately five weeks.

10
He was shackled, handcuffed, blindfolded, and in headphones when he
11

12

first entered COBALT. His sense of smell was immediately flooded

13

with an overpowering stench that reminded Mr. Salim of rotting

14
seaweed. After his headphones, hood, and earplugs were removed, he
15

16

was overwhelmed by ear-splitting noise: loud western pop-music

17

sometimes interrupted by a mixture of cacophonous sounds like

18
yowling and the clanging of bells. Mr. Salim could also make out the
19

20

sounds of voices speaking in different languages, including English,

21

Kiswahili, and Somali. He heard phrases such as, “there’s no God, no

22
God, no God.” Even once his blindfold was removed, Mr. Salim could
23

24

not see—the entire building was pitch black, though he sensed it was

25

large and cavernous. Mr. Salim and other CIA prisoners came to call

26

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COBALT “The Darkness.”

2
78. The putrid smell, crashing noises and loud music, and pitch blackness
3

4

at COBALT remained constant for the entire five weeks of Mr.

5

Salim’s imprisonment. The smell and the noise were at their most

6
intense in Mr. Salim’s cell. The only time the noise and music let
7

8

up—and then only very briefly—was when the tracks changed or

9

when the system malfunctioned. The only light Mr. Salim saw was

10
from the flashlights used by his guards and the dim lights and
11

12

spotlights used in the rooms where he was interrogated.

13

79. Upon arrival, guards marched Mr. Salim to a tiny, damp, and frigid

14
concrete cell, which was about eight feet high, seven feet long, and
15

16

three feet wide. It was pitch black and empty except for a rug on the

17

floor. Mr. Salim had no bed or blanket, despite the cold, and no

18
bathroom or washing facilities. On one of the walls there was a small,
19

20

rusty metal hoop. The guards chained Mr. Salim’s arms and legs to

21

the hoop, with his arms outstretched and at eye level. The only

22
position he could adopt was a squatting position that very quickly
23

24

became uncomfortable and extremely painful, and kept him from

25

sleeping.

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80. For approximately a week, Mr. Salim was kept in the dark in his frigid

2
cell, continually chained to the wall in an excruciating stress position,
3

4

deprived of sleep, food, and water, and subjected to deafening noise

5

and a nauseating stench. He was in constant fear.

6
81. The first sustenance Mr. Salim received was approximately two days
7

8

after his arrival, when guards gave him a small piece of bread in a

9

watery, tasteless broth and a large bottle of water. The guards briefly

10
unchained him to allow him to eat. This was also the first time that
11

12

Mr. Salim was permitted to use the metal bucket that the guards placed

13

in his cell as a toilet. Before this, Mr. Salim urinated and defecated in

14
his diaper and the clothes in which he had been rendered from
15

16

Somalia.

17

82. For his entire time in COBALT, Mr. Salim was deprived of food and

18
given the same meal—a small chunk of bread in a watery broth—only
19

20

once every other day. He was given a single bottle of water every day

21

to be used both for drinking and hygiene.

22

23

83. The only time Mr. Salim left his cell during the first week or so in

24

COBALT was about two days after his arrival, when two guards took

25

him to meet with a man whom Mr. Salim assumed to be a doctor or

26

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nurse. Mr. Salim was blindfolded for the duration of the visit and the

2
man never introduced himself. The man conducted a general medical
3

4

examination, weighing Mr. Salim and palpating various parts of his

5

body. He paid particular attention to Mr. Salim’s broken nose and

6
fingers—sustained during his abduction in Mogadishu about two
7

8

weeks before. After taking an X-ray of Mr. Salim’s hand, the man told

9

Mr. Salim that his fingers were broken, put them in a cast, and gave

10
Mr. Salim a painkiller. Mr. Salim was provided with painkillers on a
11

12

daily basis thereafter. He did not take them, however, and instead

13

secreted them in his clothing or in his cell. Mr. Salim had become so

14
distressed and desperate that he had begun to contemplate suicide. He
15

16

thought that once he had enough painkillers he could use them to kill

17

himself.

18

Phase II: “Aggressive phase” of torture and cruel, inhuman, and

19

degrading treatment

20
84. Two or three days after his medical examination, Mr. Salim’s torture
21

22

increased in severity. To Mr. Salim, it seemed that the man who had

23

examined him had given the go-ahead for more abuse.

24

25

85. Before implementation of the “aggressive phase,” Mr. Salim had not

26

been questioned. Mr. Salim was one of “[a]t least 6 detainees [who]

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were stripped and shackled nude, placed in the standing position for

2
sleep deprivation, or subjected to other CIA enhanced interrogation
3

4

techniques prior to being questioned by an interrogator in 2003.”

5

SSCI Report 77 n. 409.

6
86. For the next two or three weeks, Mr. Salim was subjected to greater
7

8

humiliation, prolonged periods of sleep deprivation, repeated dousing

9

in extremely cold water in a manner that approximated waterboarding,

10
beatings, attention grabs, forceful slaps to the face and body, cramped
11

12

confinement in two boxes—one coffin-sized and the other

13

significantly smaller—and prolonged nudity. He was also strapped to

14
a waterboard and threatened with waterboarding.
15

16

87. On the first day, two guards dressed entirely in black came to Mr.

17

Salim’s cell. Working by flashlight, they unchained Mr. Salim from

18
the wall of his cell, cuffed his hands and shackled his legs, marched
19

20

him to a large, dimly-lit room, and sat him down in a chair. Mr. Salim

21

was surrounded by eight or nine men, all but one of whom wore black

22
hats, masks, and overalls. The unmasked man seemed to be the leader.
23

24

Mr. Salim later learned he was called “Viram.” Viram silently

25

approached Mr. Salim with an electric razor in one hand. He began to

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shave Mr. Salim’s head, and after one swipe passed the razor to one of

2
the masked men. Each of the masked men took a turn with the razor,
3

4

shaving Mr. Salim until he was bald and removing all his facial hair.

5

The entire episode left Mr. Salim deeply humiliated, degraded, and

6
terrified of what would happen next.
7

8

88. The two guards who had brought Mr. Salim into the room then forced

9

Mr. Salim to stand, removed his handcuffs and shackles, and ripped

10
the clothes from his body. Once he was naked, they cuffed and
11

12

shackled Mr. Salim again and laid him down in the center of a large

13

plastic sheet that covered part of the floor. A thin film of ice-cold

14
water covered the surface of the plastic sheet. Using a large jug, two
15

16

men repeatedly doused Mr. Salim in gallons of ice-cold water. The

17

water was so cold it left Mr. Salim breathless. In between the water

18
dousing, the two men kicked and slapped Mr. Salim on the stomach or
19

20

face and shouted at him in English. After some 20 or 30 minutes of

21

this water torture, the men pulled up the corners of the freezing cold

22
sheet and rolled Mr. Salim inside. Covered in the plastic sheet, Mr.
23

24

Salim was left to shiver violently in the cold for some 10 or 15

25

minutes.

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89. Mr. Salim was then taken into another room where two guards forcibly

2
restrained him and a spotlight was aimed directly in his face. A third
3

4

unmasked man then shouted at Mr. Salim in English while another

5

man translated into Somali. Mr. Salim had a limited grasp of English

6
but knew Somali fairly well. The interrogator demanded personal
7

8

background information from Mr. Salim and asked what Mr. Salim

9

had being doing in Somalia and who he knew there. The interrogator

10
listed names of people and asked Mr. Salim if he knew any of them.
11

12

Mr. Salim answered truthfully that he was a trader doing business in

13

Somalia; that he had recently married a woman from there; and that he

14
only knew one person from the interrogator’s list of names, and only
15

16

because he had bought a boat from that person. The interrogation team

17

changed two times during the “aggressive phase.” Throughout Mr.

18
Salim’s interrogation and the entire time he spent in U.S. custody, he
19

20

was asked the same questions and he provided the same truthful

21

responses.

22

23

90. After roughly half an hour, Mr. Salim was taken back into the first

24

room. His head was covered in a cloth bag, and he was again placed in

25

the middle of the plastic sheet. His two interrogators repeated the ice-

26

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cold water dousing, but this time the cloth bag clung to Mr. Salim’s

2
face, suffocating him. Mr. Salim felt like he was drowning. His heart
3

4

felt as if it was beating out of his chest. He was paralyzed with cold.

5

This water dousing session ended like the first: the men rolled Mr.

6
Salim in the plastic sheet so he felt “like a corpse” and left him in the
7

8

cold for around 15 minutes before he was dragged once again to the

9

second room for interrogation. The water torture sessions followed by

10
interrogation continued in this same manner for hours.
11

12

91. After the last water-torture session ended that first day, Mr. Salim’s

13

interrogators showed him a small wooden box, measuring about three

14
square feet. There were holes on one side and another was hinged
15

16

with a lock and padlock. Naked, chained, and shackled, Mr. Salim

17

was stuffed inside the box and it was locked shut. The space was pitch

18
black, and so small that Mr. Salim had to crouch over on his knees.
19

20

The box smelled rancid. Mr. Salim was locked in the box for what he

21

estimates was half an hour, though it felt much longer.

22

23

92. Mr. Salim vomited in pain and fear while he was inside the small

24

cramped confinement box. Interrogators used this technique on him

25

only on the first day, but they threatened to use it on him on a number

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of other occasions during interrogations at COBALT. At one time

2
they stuffed him inside the box for a short period without locking the
3

4

door. Even the threat of this technique filled Mr. Salim with dread.

5

93. Immediately after the first cramped confinement session, Mr. Salim

6
was interrogated again.
7

8

94. At the end of this first day of “aggressive” torture, Mr. Salim was

9

taken back to his cell by two guards and again put in a painful stress

10
position. The guards chained him, naked, to the metal ring in the wall
11

12

but now used a slightly longer length on the leg and arm chains, which

13

allowed Mr. Salim to sit on the floor of his cell instead of squatting. It

14
was still extremely painful, however, and coupled with the constant
15

16

loud music and cold, Mr. Salim was unable to sleep.

17

95. For the duration of this “aggressive phase,” Mr. Salim was kept naked.

18
The only time he was given clothing was during a few of his
19

20

interrogation sessions. Mr. Salim did not understand why he was

21

given clothing for these sessions, nor why he was stripped afterwards.

22

23

96. On the second day of the “aggressive” phase, Mr. Salim was again

24

subjected to repeated and hours-long water torture and interrogation

25

sessions.

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97. After the last water torture session ended on the second day, Mr. Salim

2
was taken to a room in which a wooden wall had been constructed.
3

4

The lead interrogator placed a foam collar, attached to a leash, around

5

Mr. Salim’s neck. Using the leash, the interrogator threw Mr. Salim

6
against the wooden wall. Mr. Salim crashed into the wall, and as he
7

8

rebounded, the interrogator struck Mr. Salim in the stomach. The

9

interrogator repeated this procedure several times, shouting at Mr.

10
Salim as he propelled Mr. Salim against the wall and beat him.
11

12

98. After the walling ended, Mr. Salim was interrogated again.

13

Immediately after the interrogation, he was forced into a tall, thin,

14
coffin-like box. The box was just wide and high enough to
15

16

accommodate a fully grown adult with arms stretched over their head.

17

Once crammed inside, Mr. Salim’s hands were chained above his head

18
to a thin metal rod that ran the width of the box. The door of the box
19

20

was then closed and Mr. Salim was left in darkness, with music

21

blasting at him in the box from all angles.

22

23

99. After two or three hours in the tall box, Mr. Salim was removed and

24

taken to an interrogation room. Interrogators then shone a spotlight in

25

his face and bombarded him with the same questions they had asked

26

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the day before. Once this interrogation session ended, guards took Mr.

2
Salim back to his cell and chained him by his legs and arms to the iron
3

4

ring in the wall. He was left overnight in pain, naked, cold, and unable

5

to sleep.

6
100. Mr. Salim was subjected to water torture and interrogation sessions for
7

8

two more days. On the third day, after one of the water torture

9

sessions ended and before the interrogation session began, one

10
interrogator attached a chain with a large ball at the end around Mr.
11

12

Salim’s waist and made him drag it around the perimeter of the

13

room—naked with a hood over his head—for thirty minutes, until he

14
collapsed with exhaustion, weakened by hunger and the water torture.
15

16

101. On the fourth and final day of Mr. Salim’s water torture, at the end of

17

one of the sessions, interrogators strapped his hands and feet to a

18
pivoted, wooden board—a water board—and threatened to waterboard
19

20

him, but instead spun him around 360 degrees several times.

21

102. Around the beginning of the third week of Mr. Salim’s detention at

22
COBALT, sometime after the water torture sessions had ended, Mr.
23

24

Salim was subjected to prolonged standing sleep deprivation in a new

25

painful stress position. Two guards took Mr. Salim from his cell to a

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small, pitch-black room. Working by flashlight, the guards chained

2
Mr. Salim’s arms above his head to a metal rod that ran the width of
3

4

the small room and positioned him so that the balls of his feet barely

5

touched the floor. Mr. Salim was left hanging, naked, in the darkness,

6
barraged with ear-splitting music. During this entire period, Mr. Salim
7

8

was given no food and only sips of water. He remained suspended

9

from the ceiling without interruption, including when he relieved

10
himself. The only time he was taken down was for interrogation. On
11

12

occasion, he started to drift into sleep but immediately jolted awake

13

from the excruciating pain that shot through his arms and shoulders as

14
they momentarily supported his full body weight. Mr. Salim was
15

16

subjected to this form of standing sleep deprivation for what seemed to

17

him four or five days.

18
103. As a result of the prolonged standing sleep deprivation, Mr. Salim’s
19

20

back and shoulders ached and his arms felt as if they had become

21

dislocated. Both Mr. Salim’s legs were swollen and there was a

22
sickening smell from beneath the plaster cast on his hand. A large cut
23

24

had also opened on the same hand. Once the technique stopped and

25

Mr. Salim was taken back to his cell, a male doctor or nurse came to

26

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treat Mr. Salim, doing nothing for his swollen legs but removing the

2
cast from his fingers and attempting to straighten them. He also
3

4

bathed Mr. Salim’s wound and re-bandaged his fingers.

5

104. Two or three weeks after the “aggressive phase” had begun, Mr.

6
Salim’s interrogators assessed him “broken” and “cooperative” and
7

8

stopped it.

9

105. During the fourth or fifth week of Mr. Salim’s detention at COBALT,

10
a man Mr. Salim had never seen before administered what Mr. Salim
11

12

believes was a polygraph test. He started by asking Mr. Salim a series

13

of questions that Mr. Salim thought bizarre—Are the lights on or off?

14
What time of day is it?—as well as the same questions previous
15

16

interrogators had shouted at him. Mr. Salim answered in his limited

17

English, providing the same truthful answers as before.

18
106. Sometime after this polygraph test, guards took Mr. Salim from his
19

20

cell, blindfolded him, strapped him to a stretcher, and wheeled him to a

21

dimly lit room. There he received three very painful injections in his

22
arm. Mr. Salim was not told what these injections were for, and he did
23

24

not consent to them. From under his blindfold, Mr. Salim could see

25

that he was hooked up to some kind of a computer screen or monitor.

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After the injections were administered Mr. Salim felt drowsy, like a

2
drunken person, and his face went numb, as if he’d been slapped very
3

4

hard. The next thing Mr. Salim was aware of was waking up in his

5

cell, chained to the wall. He has no recollection of what happened to

6
him in the intervening period, or how long the period lasted.
7

8

107. In approximately his fourth or fifth week at COBALT, Mr. Salim

9

become so hopeless and despondent that he decided to kill himself by

10
taking the painkillers he had stockpiled in his cell. As he began to take
11

12

the pills, however, guards stormed into his cell and stopped him.

13

108. Immediately after Mr. Salim’s failed suicide attempt, CIA personnel

14
transferred him from COBALT to another CIA black-site prison. Two
15

16

or three guards restrained him and another dressed him in shorts and a

17

t-shirt, cuffed his hands, and shackled his legs. A guard stuffed plugs

18
in his ears, placed a hood over his head, and placed goggles and
19

20

headphones over the hood. Mr. Salim was then dragged into the back

21

of a vehicle. He was driven a short distance, some 15 or 20 minutes,

22
to an underground prison that Mr. Salim later learned was known as
23

24

the “Salt Pit.”

25

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109. The CIA held Mr. Salim incommunicado and in solitary confinement

2
in the “Salt Pit” for 14 months. The Agency did not interrogate him
3

4

during that time, although the FBI did. On about seven occasions, two

5

individuals who represented themselves as agents of the FBI, one male

6
and the other female, came to talk to him. The male agent called
7

8

himself “Mike,” and spoke to Mr. Salim in Kiswahili. Mike asked Mr.

9

Salim the same questions that he had been asked in COBALT, and Mr.

10
Salim again gave the same truthful responses.
11

12

110. The only other visitor Mr. Salim had during his time in the “Salt Pit”

13

was one of his interrogators from COBALT. The interrogator brought

14
fruit and nuts for Mr. Salim, said he had been forced to torture Mr.
15

16

Salim, apologized, and asked for Mr. Salim’s forgiveness.

17

111. In approximately July 2004, Mr. Salim was transferred to the custody

18
of the U.S. military and held at a prison at the Bagram Air Force Base,
19

20

a thirty-minute helicopter ride away. For over four years, Mr. Salim

21

was detained at Bagram, where his prisoner number was 1075.

22
Throughout, Mr. Salim was held in solitary confinement in a series of
23

24

small cages in a large, hanger-type building. Bright lights remained on

25

constantly. He never saw daylight.

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112. On August 17, 2008, a representative of the International Committee

2
of the Red Cross (“ICRC”) told Mr. Salim that he was to be released.
3

4

The ICRC gave Mr. Salim a memorandum from the U.S. Department

5

of Defense confirming his detention by the “United States/Coalition

6
Forces,” certifying his release, and stating that Mr. Salim “has been
7

8

determined to pose no threat to the United States Armed Forces or its

9

interests in Afghanistan.” The memo also stated that there were no

10
charges pending against Mr. Salim.
11

12

113. The ICRC arranged to fly Mr. Salim to Dubai, and from there to Dar

13

es Salaam and on to his home and family in Zanzibar.

14
114. Upon Mr. Salim’s return, he made repeated efforts to find his wife,
15

16

with whom he had lost all contact during his incommunicado

17

detention. He has never been able to find her. Mr. Salim now lives

18
with his second wife, whom he married in 2011, their three-year-old
19

20

daughter, and his extended family.

21

115. Mr. Salim continues to suffer acute physical injuries from torture. He

22
experiences debilitating pain in his jaw and teeth, making it difficult to
23

24

eat solid foods. His senses of taste and smell are impaired. He suffers

25

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severe pain in his back, shoulders, and legs. The chronic pain makes it

2
extremely difficult for Mr. Salim to work or perform other activities.
3

4

116. Mr. Salim also suffers severe and lasting psychological injuries from

5

torture. His injuries include frequent nightmares and terrifying

6
flashbacks to his time in COBALT and, during daytime, frequent
7

8

spells of dizziness and confusion. A forensic examination conducted

9

after his release confirms many other symptoms of post-traumatic

10
stress disorder, including intrusive recollections, avoidance/emotional
11

12

numbing, hyper-arousal symptoms, and major depression.

13

Mohamed Ahmed Ben Soud (formerly Mohamed Shoroeiya, Abd

14

al-Karim)

15

117. Plaintiff Mohamed Ahmed Ben Soud is a Libyan citizen, born in

16
Misrata in 1969. In 1991, Mr. Ben Soud fled Libya, fearing
17

18

persecution for his opposition to Muammar Gadaffi’s regime. In exile,

19

Mr. Ben Soud later joined a group opposed to the Gadaffi government,

20
the Libyan Islamic Fighting Group. He resided temporarily in a
21

22

number of countries before settling in Pakistan. In April 2003, he was

23

living in the city of Peshawar with his wife, whom he married in 2000,

24

25

and their nine-month old daughter.

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118. On April 3, 2003, Mr. Ben Soud was arrested during a raid on his

2
home by U.S. and Pakistani forces. During the raid, Mr. Ben Soud
3

4

was shot in the left leg. The gunshot shattered a bone.

5

119. Mr. Ben Soud was detained, interrogated and abused for two weeks by

6
Pakistani and U.S. officials. At one point, a doctor x-rayed his injured
7

8

leg and fitted it with a plaster cast. The interrogators questioned Mr.

9

Ben Soud about his knowledge of terrorism threats against the United

10
States and his connections with al-Qa’ida. Mr. Ben Soud explained
11

12

truthfully that he had no knowledge of any terrorism plans against the

13

United States and no connection with al-Qa’ida. Mr. Ben Soud was

14
repeatedly asked these same questions during his time in U.S. custody.
15

16

120. On April 18, Mr. Ben Soud’s U.S. interrogators told him that he was

17

being uncooperative and that they were going to send him to a place

18
where he would be made to cooperate. That night, Mr. Ben Soud was
19

20

blindfolded and handcuffed and driven some forty minutes to an

21

airport. The CIA rendered Mr. Ben Soud to its black-site prison,

22
COBALT.
23

24

121. During Mr. Ben Soud’s imprisonment by the CIA, Mr. Ben Soud was

25

experimented upon and subjected to and regimen of torture and cruel,

26

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inhuman, and degrading treatment in accordance with the phased

2
torture program that Defendants Mitchell and Jessen designed,
3

4

supervised and implemented. He suffered coercion and abuse during

5

his rendition; torture and cruel, inhuman and degrading treatment

6
during his confinement and further torture and abuse through the
7

8

application of 9 of the 10 coercive methods Defendants devised for the

9

torture program: prolonged sleep deprivation (seating and standing),

10
walling, stress positions, the facial slap, abdominal slap, dietary
11

12

manipulation, the facial hold, cramped confinement (large and small

13

boxes), and a form of waterboarding. In addition, he was subjected to

14
prolonged nudity and water dousing that approximated waterboarding.
15

16

Some of these methods were used on him repeatedly and in

17

combination.

18
Phase I: “Setting the conditions” for “learned helplessness”
19

20

122. The CIA began its torture of Mr. Ben Soud during its rendition of him

21

to COBALT by subjecting him to severe physical and mental pain and

22
suffering through humiliation, extreme sensory deprivation, and other
23

24

forms of abusive treatment in accordance with Defendant Mitchell and

25

Jessen’s specifications. Mr. Ben Soud’s blindfold was removed, and

26

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he saw he was surrounded by five or six men, all dressed in black and

2
wearing masks so that only their eyes were visible. A strong light was
3

4

shone directly into his face. CIA personnel cut his clothes from his

5

body. Once Mr. Ben Soud was naked, one of the men conducted what

6
appeared to be a medical examination, checking his anus, eyes, ears,
7

8

nose and throat. He was then dressed in a diaper, a pair of trousers and

9

a short-sleeved shirt. The men handcuffed Mr. Ben Soud and chained

10
his cuffs to a belly chain. They shackled his legs together and fastened
11

12

them to the same belly chain. They stuffed earplugs into his ears and

13

taped cotton pads over his eyes. They covered his head with a hood

14
and placed headphones over the hood and his ears. Deafened, blinded,
15

16

and terrified, Mr. Ben Soud was forced up a set of stairs and into what

17

he sensed was an aircraft. Once inside, he was chained to one of the

18
seats, and flown for what seemed like an hour, although it was difficult
19

20

for him to gauge time given his disorientation and sensory deprivation.

21

123. After landing, Mr. Ben Soud was removed from the plane and thrown

22
into the back of a truck. He landed on top of another prisoner. The
23

24

vehicle drove a short distance, arriving at a hangar-type building,

25

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which was COBALT. Mr. Ben Soud was removed from the back of

2
the truck and hoisted onto someone’s shoulder.
3

4

124. Inside COBALT, Mr. Ben Soud’s headphones, hood, earplugs, and

5

blindfold were removed. CIA personnel sat him on an old ammunition

6
box at a table with two spotlights aimed directly at his face. Across
7

8

the table from him stood a middle-aged woman whom he identified

9

from her accent as American. Two guards stood behind him, one on

10
each side. Through a translator, the woman shouted at him that he was
11

12

a prisoner of the CIA, that human rights ended on September 11, and

13

that no laws applied in this prison. She asked him no questions.

14
125. Guided by flashlights, two guards then took Mr. Ben Soud to a small,
15

16

concrete, pitch-black, windowless cell measuring approximately 13

17

feet high by 10 feet long, with a steel door and tiny barred ventilation

18
slot. There was a metal ring attached to one wall. A small metal
19

20

bucket served as a toilet. There were no washing facilities, only a

21

liter-sized water bottle that was filled every morning but was sufficient

22
only for drinking. There was no bed, just two thin blankets, one of
23

24

which Mr. Ben Soud used to sleep on and the other he used as a cover,

25

26

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although the cover did little to keep him warm during the winter

2
months.
3

4

126. In the cell, the CIA guards removed Mr. Ben Soud’s handcuffs and

5

belly chain, his clothing and his diaper, but left the shackles around his

6
ankles. The whole procedure was precise and well-practiced, seeming
7

8

almost scientific to Mr. Ben Soud. Mr. Ben Soud was left naked.

9

127. Mr. Ben Soud was kept naked for more than a month. At what he

10
estimated was the end of May, he was provided with clothing for the
11

12

first time, a light pair of trousers and a t-shirt, but both were cut-up

13

oddly, missing a leg or a sleeve.

14
128. Throughout his time in COBALT, Mr. Ben Soud was bombarded by
15

16

Western music. The music was played at ear-splitting levels and filled

17

the entire building. It only ever stopped very briefly as the tracks

18
changed or when the system malfunctioned. Mr. Ben Soud’s cell was
19

20

kept pitch black, and stank. At first, the stench came chiefly from the

21

toilet bucket, but eventually also from Mr. Ben Soud, who was not

22
permitted to wash for five months nor cut his hair, beard or nails. The
23

24

smell in his cell was so bad that the guards wore masks when they

25

came to take him to interrogation.

26

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129. Mr. Ben Soud was subjected to food deprivation and dietary

2
manipulation throughout his year-long detention at COBALT. In the
3

4

first five months, from April until September 2003, Mr. Ben Soud was

5

provided one meal a day, and occasionally two meals. These meals

6
consisted of rice or bread and beans. After five months, meals were
7

8

provided on a more regular basis, but the nutritional quality remained

9

low. Mr. Ben Soud was weighed by a medic when he first arrived at

10
COBALT and again three months later. In this period he lost nearly
11

12

49 pounds, falling from 187 pounds to 139 pounds.

13

130. Throughout Mr. Ben Soud’s imprisonment at COBALT he was

14
subjected to sleep deprivation, able to sleep only for minutes at a time
15

16

because of painful stress positions, constant blaring music, and guards

17

banging loudly on the door of his cell every hour or so. In the first few

18
months at COBALT, Mr. Ben Soud was continually placed in one of
19

20

three painful seated stress positions: he was kept chained to the ring on

21

his cell wall by one wrist; both wrists; or by the wrists and both legs.

22
The seated positions were, “[t]o accommodate [Mr. Ben Soud’s]
23

24

injuries . . . rather than being shackled standing during sleep

25

deprivation, [he should] be ‘seated, secured to a cell wall, with

26

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intermittent disruptions of normal sleeping patterns.” SSCI Report

2
492 n.2675. Once medics removed the cast from his injured leg, Mr.
3

4

Ben Soud was subjected to standing sleep deprivation. Guards would

5

take him from his cell and force him to march around the prison naked,

6
“‘15 minutes every half-hour through the night and into the morning.’”
7

8

SSCI Report 492. This caused Mr. Ben Soud excruciating pain in his

9

leg.

10
131. For Mr. Ben Soud, the prolonged sleep deprivation was the worst form
11

12

of torture that he had to endure. It drove him close to madness.

13

132. During the first two weeks of Mr. Ben Soud’s detention at COBALT,

14
he was interrogated on a regular basis. Mr. Ben Soud was cuffed,
15

16

shackled and naked, with a spotlight aimed in his face, and two

17

interrogators took turns questioning him. In addition to the questions

18
he had been asked in Pakistan, the interrogators asked Mr. Ben Soud
19

20

whether he knew certain individuals, including Osama Bin Laden, Abu

21

Faraj al Libi, and Abu Leith al-Libi. Mr. Ben Soud answered truthfully

22
that he knew of them but only from reports in the media. In response
23

24

to the questions he had also been asked in Pakistan, Mr. Ben Soud

25

gave the same truthful answers as before: he had no connections with

26

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al Qa’ida and he was neither involved in nor knew of any terrorism

2
plots against the United States.
3

4

Phase II: “Aggressive phase” of torture and cruel, inhuman, and

degrading treatment

5

6

133. It was difficult for Mr. Ben Soud to have a firm sense of time—the

7

differences between day and night were almost imperceptible—but he

8
estimates that roughly two weeks after he arrived at COBALT his
9

10

torture increased in severity with the introduction of new methods.

11

134. The “aggressive phase” of Mr. Ben Soud’s torture lasted for about four

12
or five weeks. During this phase, Mr. Ben Soud saw Defendant
13

14

Mitchell three times in COBALT: at least twice while being subjected

15

to water torture, where Mitchell appeared to be observing and

16
supervising the proceedings, and once at the end of the “aggressive
17

18

phase.”

19

135. The “aggressive phase” was conducted by two separate interrogation

20
teams. Each team tortured Mr. Ben Soud for approximately two
21

22

weeks. The first team was comprised of a male lead interrogator and

23

four assistants, both men and women. The second team was

24

25

comprised of two male lead interrogators and four or five male and

26

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136. The first interrogation team subjected Mr. Ben Soud to repeated

2
walling sessions, abdominal slaps, and water torture sessions, often in
3

4

combination on the same day for over a two-week period.

5

137. During wall slamming sessions the lead interrogator placed a foam

6
collar around Mr. Ben Soud’s neck and then slapped him firmly, first
7

8

in the face and then in the stomach, before throwing him against a

9

wooden wall. Interrogators repeated walling and slaps for 20 or 30

10
minutes before taking Mr. Ben Soud to be interrogated in another
11

12

room, and then back again for another session. As the sessions

13

continued they became increasingly painful. The noise of Mr. Ben

14
Soud hitting the wall was also extremely loud and terrifying to him.
15

16

When back in his cell, Mr. Ben Soud could hear others also being

17

subjected to walling, even above the noise of the music.

18
138. About a week after his first wall slamming session, Mr. Ben Soud’s
19

20

interrogators started to combine walling with water torture. On the

21

first day of his water torture, two guards took Mr. Ben Soud from his

22
cell to a room where the interrogation team and some others were
23

24

waiting. A large plastic sheet covered part of the floor. Guards forced

25

Mr. Ben Soud, naked, into the center of the plastic sheet. With his

26

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hands cuffed at the wrists, they forced his arms over his head. On the

2
lead interrogator’s word, four of the assistants pulled up the four
3

4

corners of the sheet to form a shallow basin. They then threw buckets

5

of ice-cold water over Mr. Ben Soud’s face and body until he was

6
partially submerged in the ice-cold water. The water seemed to have
7

8

been treated with some substance and clung to Mr. Ben Soud’s body

9

like a gel. It was so cold he shook violently. A person whom Mr. Ben

10
Soud took to be a doctor monitored the proceedings, periodically
11

12

checking Mr. Ben Soud’s vital signs. When the doctor decided that

13

Mr. Ben Soud’s temperature was dangerously low, he would give

14
instructions for warm water to be thrown over him until Mr. Ben
15

16

Soud’s temperature raised modestly. The water torture sessions lasted

17

about half an hour to forty minutes, sometimes longer. After each

18
ended, Mr. Ben Soud was taken naked and shivering to another room
19

20

and interrogated. This process was repeated multiple times.

21

139. After the first water torture session, the cast on Mr. Ben Soud’s leg

22
began to disintegrate. The same doctor who had monitored his
23

24

temperature examined the plaster. In the next session, the doctor tried

25

to protect the plaster by covering it in a plastic bag before the water

26

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was applied, in accordance with guidance in a CIA cable: “For water

2
dousing, [Mr. Ben Soud’s] injured leg[] would be ‘wrapped in
3

4

plastic.’” SSCI Report 492 n.2675. When this proved ineffective,

5

however, the doctor later designed and fitted Mr. Ben Soud with a cast

6
that could be easily removed during water torture sessions.
7

8

140. After approximately two weeks, the lead interrogator told Mr. Ben

9

Soud that he was not being cooperative and that another team of

10
interrogators would be taking over to make Mr. Ben Soud cooperate.
11

12

Before leaving, he provided Mr. Ben Soud with a pair of trousers and a

13

t-shirt.

14
141. For the next two to three weeks, a second interrogation team took over
15

16

and subjected Mr. Ben Soud to a combination of walling, water

17

torture, cramped confinement in large and small boxes, prolonged

18
standing sleep deprivation and a form of waterboarding, while
19

20

threatening him with additional abuses. The new team stripped Mr.

21

Ben Soud of the clothing he had briefly possessed; he was kept naked

22
for the duration of this period.
23

24

142. The walling and accompanying physical beatings were more severe

25

than those conducted by the first team. The water torture sessions also

26

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increased in intensity because interrogators covered Mr. Ben Soud’s

2
head with a hood before pouring ice-water over him. The addition of
3

4

the hood caused Mr. Ben Soud to choke and suffocate. He felt like he

5

was drowning.

6
143. Mr. Ben Soud’s interrogators also placed him in a narrow, coffin-like
7

8

box which was approximately 1.5 ft. wide and tall enough for him to

9

stand with his hands chained above his head in a painful position.

10
Speakers were located on both sides of the box at the level of his ears.
11

12

Once inside, loud Western rock music was turned full volume through

13

the speakers. Mr. Ben Soud was forced into this box for forty-five

14
minutes, and found it unbearable. After using this technique on him
15

16

once, interrogators threatened him with it again if he did not cooperate.

17

144. Interrogators also forced Mr. Ben Soud into a smaller wooden box,

18
measuring approximately 3 feet by 3 feet. The box had a series of
19

20

small holes on each side. Once squeezed inside, the box was locked

21

and Mr. Ben Soud was left there for some forty-five minutes. Again,

22
Mr. Ben Soud found this experience unbearable. He was subjected to
23

24

this method once, but interrogators threatened Mr. Ben Soud with its

25

use on numerous other occasions.

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145. During this same period, for one and a half days, Mr. Ben Soud was

2
hung naked from a metal rod by his arms. He was positioned with his
3

4

arms over his head and so that the balls of his feet—including the foot

5

of his broken leg—were barely able to touch the ground. If he

6
loosened his arms, they felt like they would come out of their sockets.
7

8

It was impossible for Mr. Ben Soud to sleep. The room was small and

9

pitch-black except for a tiny blinking red light level with his head. As

10
he was being strung up he could see blood-smeared walls by the light
11

12

of the guards’ flashlights. Loud Western music was blasted into the

13

room for the duration of his suspension from the ceiling. After a very

14
short time, alone in that room and unable to sleep, Mr. Ben Soud
15

16

began to hallucinate and slowly became hysterical. After a day and a

17

half, the guards released him and brought him to see a doctor, who

18
examined his legs. They had become engorged and swollen with fluid,
19

20

his broken leg especially. Both limbs were excruciatingly painful.

21

Mr. Ben Soud was unable to walk and had to be carried by the guards

22
to the examination room for treatment.
23

24

146. On one occasion, Mr. Ben Soud was subjected to a form of

25

waterboarding. He was strapped to a wooden board that could spin

26

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around 360 degrees. His interrogators spun him around on this board

2
with a hood over his head covering his nose and mouth. While
3

4

strapped to the board with his head lower than his feet, his

5

interrogators poured buckets of cold water him. While they did not

6
pour water directly over his mouth and nose, they threatened to do so
7

8

if he did not cooperate.

9

147. After two to three weeks, the interrogation team assessed Mr. Ben

10
Soud as “broken” and “cooperative,” and stopped the “aggressive
11

12

phase” of his torture.

13

148. From around June 2003 through April 2004, Mr. Ben Soud continued

14
to be subjected to solitary confinement, other forms of extreme sensory
15

16

deprivation, including being kept in the dark and bombarded with high

17

decibel music, painful stress positions and prolonged sleep

18
deprivation.
19

20

149. During this period, there was also a change in the personnel

21

conducting his interrogations, which now consisted only of

22
questioning. These sessions occurred on a daily basis, but towards the
23

24

end of Mr. Ben Soud’s time in COBALT they became less regular.

25

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150. On September 3, 2003, Mr. Ben Soud was taken outside, into the

2
daylight. It was the first time he had seen the sun in over four months.
3

4

He knew the exact date because he spoke with an American man at

5

this time and noticed the date and time on his wrist watch. Seeing the

6
date allowed Mr. Ben Soud to calculate the time he had spent in
7

8

COBALT. He then kept a tally of the days moving forward using

9

paper and a pen that his captors provided to him.

10
151. On April 25, 2004, Mr. Ben Soud was transferred to another CIA black
11

12

site prison referred to in the SSCI Report as ORANGE, where he was

13

detained and interrogated for a further year and four months. Mr. Ben

14
Soud was held in secret, in solitary confinement and chained to the
15

16

wall of his cell when he was not being interrogated.

17

152. On August 22, 2004, the CIA rendered Mr. Ben Soud from ORANGE

18
to Gaddafi’s government in Libya.
19

20

153. In Libya, Mr. Ben Soud was handed over to Libyan officials. He was

21

detained pending a show trial and sentenced to life imprisonment on

22
July 20, 2006. He was released February 16, 2011, a day after the
23

24

uprising that led to the overthrow of the Gaddafi regime.

25

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154. Mr. Ben Soud lives in Misrata together with his wife and their three

2
children. He continues to suffer physically and psychologically from
3

4

the tortures he endured when he was a subject of Mitchell and Jessen’s

5

experimental program. He experiences pain in his left leg in particular

6
and is unable to walk on it for any length of time. A CIA cable from
7

8

May, 2003 “stated that, even given the best prognosis, [Mr. Ben Soud]

9

would have arthritis and limitation of motion for the rest of his life.”

10
SSCI Report 492. He has been diagnosed with rheumatism in his
11

12

knees and back and has been prescribed medication for the pain. Mr.

13

Ben Soud has also been receiving on-going treatment for hearing loss

14
in both ears, and hears a continuous ringing sound. He has also lost
15

16

his sense of taste and smell. He continues to suffer deep psychological

17

harm.

18
Gul Rahman
19

20

155. Gul Rahman was born in Afghanistan in the 1970s. He married there

21

and he and his wife had four daughters. In 2001, the family fled

22
Afghanistan to Pakistan to escape the armed conflict after the U.S.-led
23

24

invasion. They lived together as refugees in the Shamshatoo refugee

25

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camp located on the outskirts of Peshawar, in Pakistan. Mr. Rahman

2
earned a living selling wood to the other Shamshatoo camp refugees.
3

4

156. On October 28, 2002, Mr. Rahman, who suffered from allergies, went

5

to Islamabad for a medical checkup. He stayed the night in Islamabad

6
with an old friend and former employer, Dr. Ghairat Baheer. While
7

8

living in Afghanistan before 2001, Mr. Rahman had [periodically]

9

worked as a driver for Dr. Baheer, who was a physician and leader of

10
Hezb-e-Islami, a group formed in opposition to the Communist
11

12

Government of Afghanistan.

13

157. In the early hours of October 29, 2002, Dr. Baheer’s home in

14
Islamabad was raided in a joint U.S./Pakistani operation. Mr. Rahman
15

16

was taken captive, together with Dr. Baheer, two guards and a cook.

17

All of them were detained at a facility in Islamabad for about a week.

18
158. On or around November 5, 2002, Mr. Rahman was rendered by the
19

20

CIA from Pakistan to the CIA’s black-site COBALT prison.

21

159. During Mr. Rahman’s custody by the CIA, he was experimented on

22
and subjected to a regime of torture and abuse in accordance with the
23

24

phased program Defendants Mitchell and Jessen designed, supervised

25

and implemented. Mr. Rahman suffered abuse and coercion during his

26

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rendition; torture and cruel, inhuman, and degrading treatment during

2
his confinement; and further torture and abuse through the application
3

4

of at least 6 of the 10 coercive techniques Defendants devised for the

5

torture program: facial holds, insult slaps, abdominal slaps, stress

6
positions, dietary manipulation, and prolonged sleep deprivation. Mr.
7

8

Rahman was also subjected to prolonged nudity and water dousing.

9

Some of these coercive methods were used on Mr. Rahman repeatedly

10
and in combination.
11

12

160. In November 2002, Defendant Jessen conducted a psychological

13

evaluation of Mr. Rahman at COBALT “to determine which CIA

14
enhanced interrogation techniques should be used on him” to counter
15

16

perceived resistance. SSCI Report 497. Defendant Jessen concluded

17

that Mr. Rahman was resistant and that further torture would be

18
required to “break” his will and render him compliant. Defendant
19

20

Jessen directly participated in the more “aggressive phase” of Mr.

21

Rahman’s torture, with the assistance of an individual identified in the

22
SSCI Report as CIA Officer 1. Both Jessen and CIA Officer 1 tortured
23

24

Mr. Rahman. The abuses to which Jessen and CIA Officer 1 subjected

25

Mr. Rahman included “48 hours of sleep deprivation, auditory

26

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overload, total darkness, isolation, a cold shower and rough treatment”

2
SSCI Report 54.
3

4

161. Defendant Jessen also oversaw and encouraged Mr. Rahman’s

5

continued torture by the other CIA agents and guards Jessen was

6
training. Those methods included “rough takedown”/“hard
7

8

takedown,” which “was done for shock and psychological impact and

9

signaled the transition to another phase of the interrogation.” CIA OIG

10
Report at 77. Defendant Jessen described the technique as a
11

12

“thoroughly planned and rehearsed” form of severe physical and

13

psychological abuse that when performed on Mr. Rahman resulted in

14
abrasions to his face, legs, and hands from his being slapped, punched
15

16

and dragged naked, hooded and bound over the concrete and dirt floors

17

of COBALT. Defendant Jessen explained that after the technique was

18
used, “interrogators should speak to the prisoner to give them
19

20

something to think about.” SSCI Report at 56 n. 278.

21

162. Before Defendant Jessen departed COBALT, he proposed that the CIA

22
continue its torture of detainees using the methods he and Defendant
23

24

Mitchell had devised for the agency “and offered suggestions to [CIA

25

OFFICER 1], the site manager, on the use of such techniques.” SSCI

26

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Report 54. After Defendant Jessen’s departure, CIA interrogators

2
continued to use many of those same methods on Mr. Rahman.
3

4

“Rahman was placed back under the cold water by the guards at [CIA

5

Officer 1]’s direction. Rahman was so cold that he could barely utter

6
his alias . . . the entire process lasted no more than 20 minutes. It was
7

8

intended to lower Rahman’s resistance and was not for hygienic

9

reasons. At the conclusion of the shower, Rahman was moved to one

10
of the four sleep deprivation cells where he was left shivering for
11

12

hours or overnight with his hand chained over his head.” SSCI Report

13

at 63 n.314.

14
163. On November 19, 2002, CIA Officer 1 assessed Mr. Rahman as still
15

16

uncooperative, and ordered him to be shackled in a painful stress

17

position that required Mr. Rahman to kneel on the bare concrete floor

18
of his cell with his hands chained above his head. CIA Officer 1 also
19

20

ordered Mr. Rahman to be stripped of his clothes, except for a

21

sweatshirt, as punishment for a perceived lack of cooperation during

22
an earlier torture session. CIA Officer 1 ordered Mr. Rahman to be
23

24

left partially nude and in a stress position overnight, when the

25

temperatures were known to dip below 36 degrees Fahrenheit.

26

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164. On November 20, 2002, guards found Mr. Rahman dead in his cell.

2
An autopsy report and internal CIA review found that Mr. Rahman
3

4

likely died from hypothermia caused “in part from being forced to sit

5

on the bare concrete floor without pants,” with the contributing factors

6
of “dehydration, lack of food, and immobility due to ‘short chaining.’”
7

8

SSCI Report at 54–55 n. 272.

9

165. The CIA and the CIA Office of the Inspector General completed

10
reports on Mr. Rahman’s death on January 28, 2003 and April 27,
11

12

2003, respectively. Mr. Rahman’s death was also examined by the

13

CIA Inspector General in a report on the CIA’s detention and

14
interrogation activities from September 2001 to October 2003, dated
15

16

May 7, 2004. No one was held accountable for Mr. Rahman’s death or

17

the torture that caused it.

18
166. In March 2003, CIA Officer 1 was recommended for a “cash award”
19

20

for his “consistently superior work” and remained in charge of the

21

COBALT facility until July 2003. SSCI Report 55.

22

23

167. The CIA covered up Mr. Rahman’s death until 2010, when the

24

Associated Press reported on the story. Mr. Rahman’s wife and four

25

26

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daughters have never been officially notified of Mr. Rahman’s death,

2
nor has his body ever been returned to them for a dignified burial.
3

4

VI. CAUSES OF ACTION

5

First Claim for Relief

6

Alien Tort Statute: Torture and Other Cruel, Inhuman, and

7

Degrading Treatment

8

168. Defendants Mitchell and Jessen tortured Plaintiffs and subjected them

9

10

to other forms of cruel, inhuman and degrading treatment under color

11

of law in that they intentionally inflicted severe physical and mental

12

pain or suffering on each of the Plaintiffs, for the purposes of obtaining

13

14

information or a confession, punishing them, and/or intimidating or

15

coercing them, and that they did so at the instigation of or with the

16
consent or acquiescence of public officials or other persons acting in
17

18

an official capacity.

19

169. Defendants are directly liable because they designed, developed, and

20
implemented a program for the CIA intended to inflict physical and
21

22

mental pain and suffering on Plaintiffs, and because Plaintiffs were

23

tortured and subjected to cruel, inhuman, and degrading treatment as a

24
consequence of their inclusion in that program.
25

26

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170. Defendants are also liable because they conspired and/or acted

2
together in a joint criminal enterprise with agents of the United States
3

4

in Plaintiffs’ torture and cruel, inhuman and degrading treatment.

5

Defendants entered into an agreement with agents of the United States

6
to design and implement a program of torture and cruel, inhuman, and
7

8

degrading treatment for the CIA and Plaintiffs suffered severe physical

9

and mental pain and suffering as a consequence of their inclusion in

10
that program. Defendants participated in or committed wrongful acts
11

12

in furtherance of the conspiracy, resulting in injury to Plaintiffs.

13

171. Defendants are also liable because they aided and abetted Plaintiffs’

14
torture and cruel, inhuman, and degrading treatment by agents of the
15

16

United States. Defendants intended to cause Plaintiffs severe physical

17

and mental pain and suffering. Defendants controlled and profited

18
from Plaintiffs’ pain and suffering. Torture and cruel, inhuman, and
19

20

degrading treatment were an inextricable and purposeful component in

21

every aspect of Defendants’ program. Defendants provided substantial

22
practical assistance to agents of the United States, resulting in
23

24

Plaintiffs’ torture and cruel, inhuman, and degrading treatment.

25

26

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172. Defendants’ acts and omissions caused Plaintiffs to suffer damages,

2
including severe physical, mental, and emotional pain and suffering.
3

4

173. Defendants’ acts or omissions were deliberate, willful, intentional,

5

wanton, malicious, oppressive, and in conscious disregard for

6
Plaintiffs’ rights under international and U.S. law and should be
7

8

punished by an award of punitive damages in an amount to be

9

determined at trial.

10
Second Claim for Relief
11

12

Alien Tort Statute: Non-Consensual Human Experimentation

13

174. Defendants Mitchell and Jessen experimented on Plaintiffs under color

14
of law and without Plaintiffs’ consent. Specifically, Plaintiffs were
15

16

forced to be part of the test of Defendants’ experimental theory that

17

prisoners could be reduced through abusive treatment to a state of

18
“learned helplessness” and thereby rendered passive, compliant, and
19

20

unable to resist their interrogators’ demands for information. As part

21

of this experiment, Defendants implemented an experimental protocol

22
that required assessments of whether (1) prisoners had been tortured
23

24

long enough to induce a state of “learned helplessness” or additional

25

torture was necessary; (2) certain combinations and sequences of

26

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torture techniques were most effective at overcoming “resistance”; and

2
(3) whether detainees became fully compliant with interrogators’
3

4

demands once they had been reduced to a state of learned helplessness.

5

175. Defendants are directly liable because they experimented on Plaintiffs

6
by seeking to induce in them a state of “learned helplessness” to break
7

8

their will by means of torture and cruel, inhuman, and degrading

9

treatment. Defendants monitored, recalibrated, and refined their

10
experiment based on their assessment of Plaintiffs’ and other
11

12

prisoners’ physical and psychological reactions to torture and cruel,

13

inhuman, and degrading treatment.

14
176. Defendants are also liable because they conspired and/or acted
15

16

together in a joint criminal enterprise with agents of the United States

17

in conducting their experiments on Plaintiffs without their consent.

18
Defendants conspired with agents of the United States to experiment
19

20

on Plaintiffs by torturing and subjecting them to cruel, inhuman, and

21

degrading treatment and by monitoring, recalibrating, and refining

22
their experiment based on their assessment of Plaintiffs’ and other
23

24

prisoners’ physical and psychological reactions to their torture and

25

cruel, inhuman, and degrading treatment. Defendants participated in

26

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or committed wrongful acts in furtherance of said conspiracy and/or

2
joint criminal enterprise, resulting in injury to Plaintiffs.
3

4

177. Defendants are also liable because they aided and abetted agents of

5

the United States to experiment on Plaintiffs without their consent.

6
They controlled and directly profited from those experiments. Non-
7

8

consensual human experimentation was an inextricable and purposeful

9

component in every aspect of Defendants’ program. Defendants

10
provided substantial practical assistance to U.S. government officials
11

12

in experimenting on Plaintiffs, resulting in Plaintiffs’ becoming

13

subjects of non-consensual human experimentation, and resulting in

14
their physical pain and mental suffering, as a consequence.
15

16

178. Defendants’ acts and omissions caused Plaintiffs to suffer damages,

17

including severe physical, mental, and emotional pain and suffering.

18
179. Defendants’ acts or omissions were deliberate, willful, intentional,
19

20

wanton, malicious, and oppressive, and in conscious disregard for

21

Plaintiffs’ rights under international and U.S. law prohibiting non-

22
consensual human experimentation and should be punished by an
23

24

award of punitive damages in an amount to be determined at trial.

25

26

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Third Claim for Relief

2
Alien Tort Statute: War Crimes
3

4

180. Plaintiffs were subjected to war crimes of torture, cruel treatment and

5

other “outrages upon personal dignity,” and “medical and scientific

6
experimentation” without their consent in the context of an
7

8

international armed conflict.

9

181. Mitchell and Jessen are directly liable for these war crimes.

10
Defendants designed, developed, and implemented a program intended
11

12

to inflict physical pain and mental suffering on Plaintiffs. Plaintiffs

13

were tortured and cruelly treated as a consequence of their inclusion in

14
that program. Defendants also experimented on Plaintiffs without
15

16

their consent by attempting to induce in them a state of “learned

17

helplessness” to break their wills by torturing and cruelly-treating

18
them, and by monitoring, recalibrating, and refining their mistreatment
19

20

based on their assessment of Plaintiffs’ and other prisoners’ physical

21

and psychological reactions to torture and cruel treatment.

22

23

182. Mitchell and Jessen are also liable because they conspired and/or

24

entered into a joint criminal enterprise with agents of the United States

25

in the commission of these war crimes: (1) Torture and cruel

26

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treatment: Defendants entered into an agreement with agents of the

2
United States to design and implement a program for the CIA intended
3

4

to inflict physical and mental suffering on Plaintiffs. Plaintiffs were

5

tortured and cruelly treated within that program. Defendants

6
participated in or committed wrongful acts in furtherance of said
7

8

conspiracy and/or joint criminal enterprise, resulting in injury to

9

Plaintiffs. (2) Non-consensual medical and scientific human

10
experimentation: Defendants conspired or entered into a joint criminal
11

12

enterprise with agents of the United States to experiment on Plaintiffs

13

without their consent by abusing them to induce a state of “learned

14
helplessness.” Defendants and agents of the United States
15

16

experimented on Plaintiffs by torturing and cruelly treating them, and

17

monitoring and assessing their physical and psychological reactions to

18
that torture and cruel treatment. Defendants participated in or
19

20

committed wrongful acts in furtherance of said conspiracy and/or joint

21

criminal enterprise, resulting in injury to Plaintiffs.

22

23

183. Defendants Mitchell and Jessen are also liable because they aided and

24

abetted agents of the United States in the commission of these war

25

crimes: (1) Torture and cruel treatment: Defendants intended to inflict

26

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physical and mental pain and suffering on Plaintiffs. They controlled

2
and directly benefited from Plaintiffs’ torture and cruel treatment.
3

4

Torture and cruelty were an inextricable and purposeful component in

5

every aspect of the CIA’s torture program. Defendants’ provided

6
substantial practical assistance to agents of the U.S. government in
7

8

carrying out that program, resulting in Plaintiffs’ torture and cruel

9

treatment. (2) Non-consensual medical and scientific human

10
experimentation: Defendants aided and abetted agents of the United
11

12

States in experimenting on Plaintiffs without their consent. They

13

controlled and directly benefited from those experiments. Non-

14
consensual medical and scientific experimentation was an inextricable
15

16

and purposeful component in every aspect of the CIA’s torture

17

program. Mitchell and Jessen provided substantial practical assistance

18
to U.S. government officials in experimenting on Plaintiffs resulting in
19

20

Plaintiffs’ being experimented on without their consent and their

21

torture and cruel treatment.

22

23

184. Defendants’ acts and omissions described herein caused Plaintiffs to

24

suffer damages, including severe physical, mental and emotional pain

25

and suffering.

26

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185. Defendants’ acts or omissions were deliberate, willful, intentional,

2
wanton, malicious, oppressive, and in conscious disregard for
3

4

Plaintiffs’ rights under international and U.S. law prohibiting war

5

crimes and should be punished by an award of punitive damages in an

6
amount to be determined at trial.
7

8

VII. REQUEST FOR RELIEF

9

10

Plaintiffs respectfully request that this Court grant the following relief:

11

A. compensatory damages in an amount to be proven at trial, but in an

12

amount over $75,000;

13

B. punitive and exemplary damages in an amount to be proven at trial;

14
C. reasonable attorneys’ fees and costs of suit; and

15

16

D. such other relief as the Court deems just and proper.

17
VIII. JURY TRIAL DEMAND
18

19

Plaintiffs demand a jury trial on all issues so triable.

20

21

22

23

24

25

26

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Case 2:15-cv-00286-JLQ Document 1 Filed 10/13/15

1 Dated: October 13, 2015
2
3
4 Steven M. Watt (pro hac vice pending)
5 swatt@aclu.org 6 Dror Ladin (pro hac vice pending)
dladin@aclu.org 7 Hina Shamsi (pro hac vice pending) 8 hshamsi@aclu.org
Jameel Jaffer (pro hac vice pending) 9 jjaffer@aclu.org 10 AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 11 125 Broad Street, 18th Floor 12 New York, New York 10004
Phone: 212-519-7870
13
14
Paul Hoffman (pro hac vice 15 pending) 16 Hoffpaul@aol.com
Schonbrun Seplow Harris & 17 Hoffman, LLP 18 723 Ocean Front Walk, Suite 100
Venice, CA 90291 19 Phone: 310-396-0731
20
21
22
23
24
25
26
27 COMPLAINT Page | 82

Respectfully submitted, s/ La Rond Baker La Rond Baker, WSBA No. 43610 lbaker@aclu-wa.org AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Phone: 206.624.2184
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Ave, Suite 630 Seattle, WA 98164 (206) 624-2184

 
 1

2

UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF WASHINGTON

4

5 SULEIMAN ABDULLAH SALIM, et al., )

)

6

) No. CV-15-0286-JLQ

Plaintiffs,

)

7

) MEMORANDUM OPINION

) AND ORDER DENYING

8

vs.

) MOTION TO DISMISS

)

9

)

JAMES E. MITCHELL and JOHN

)

10 JESSEN,

)

)

11

Defendants.

)

___________________________________ )

12

BEFORE THE COURT is Defendants’ Motion to Dismiss (ECF No. 27), which

13

seeks dismissal of the action with prejudice. Response and Reply briefs have been filed

14

and considered. Oral argument was held on April 22, 2016. James Smith, Henry

15

Schuelke, III, and Christopher Tompkins appeared for Defendants James Mitchell and

16

John Jessen, with Mr. Smith taking the lead on argument. Hina Shamsi, La Rond Baker,

17

Steven Watt, and Dror Ladin appeared for Plaintiffs Suleiman Abdullah Salim, Mohamed

18

Ahmed Ben Soud, and Obaid Ullah, with Mr. Ladin taking the lead on argument. The

19

court issued its oral ruling denying the Motion to Dismiss. This Opinion memorializes

20

and supplements the court’s oral ruling.

21

I. Introduction and Factual Background

22

The Complaint in this matter alleges Plaintiffs Suleiman Abdullah Salim (“Salim”),

23
Mohamed Ahmed Ben Soud (“Soud”), and Obaid Ullah (“Ullah”)1(collectively herein

24

25 1Ullah is the personal representative of the Estate of Gul Rahman who allegedly “died as a result
26 of hypothermia caused by his exposure to extreme cold, exacerbated by dehydration, lack of food, and
27 his immobility in a stress position.” (Complaint ¶ 3).
28 ORDER - 1

1 Plaintiffs) were the victims of psychological and physical torture. Plaintiffs are all

2 foreign citizens and bring these claims pursuant to the Alien Tort Statute, 28 U.S.C. §

3 1350 (hereafter “ATS”). As this is review of a motion to dismiss under Fed.R.Civ.P. 12,

4 the factual allegations are taken as true, unless they do not pass the plausibility standard

5 of Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S.

6 544 (2007). The court’s recitation of the alleged facts are taken solely from Plaintiffs’

7 Complaint and do not constitute findings of fact by this court. Plaintiffs allege the

8 Defendants, James Mitchell and John Jessen, “are psychologists who designed,

9 implemented, and personally administered an experimental torture program for the U.S.

10 Central Intelligence Agency.” (Complaint, ¶ 1).

11

A. Allegations of Mr. Salim

12

Plaintiff Salim is a Tanzanian citizen who was captured by the CIA and Kenyan

13 Security Forces in Somalia in March, 2003, where he was working as a trader and

14 fisherman. He was transferred to official U.S. Government sites in Afghanistan and held

15 there for a total of sixteen months. In July 2004, he was transferred to Bagram Air Force

16 Base in Afghanistan and held in custody there for an additional four years, until being

17 released in August 2008. (Complaint ¶ 9). Mr. Salim alleges he was subjected to

18 numerous coercive methods, including: prolonged sleep deprivation, walling, stress

19 positions, facial slaps, abdominal slaps, dietary manipulation, facial holds, and cramped

20 confinement. (Id. at ¶ 74). He also claims he was subjected to prolonged nudity and

21 “water dousing that approximated waterboarding.”(Id.). The conditions of his

22 confinement are pled with great specificity, including that he was kept in a dark, frigid

23 cell, “continually chained to the wall” in a stress position in which the “only position he

24 could adopt was a squatting position that very quickly became uncomfortable and

25 extremely painful” and was fed a meager meal of “a small chunk of bread in a watery

26 broth–only once every other day.” (Id. at ¶ 79-82).

27

The allegations of ongoing torture are also pled with great specificity. (Complaint

28 ORDER - 2

1 ¶¶ 71-116). By way of brief example, the following: Mr. Salim alleges being stripped

2 naked and then placed, cuffed and shackled on the center of a large plastic sheet where,

3 he alleges, he was repeatedly doused with ice-cold water and kicked and slapped in the

4 stomach and face. After 20 to 30 minutes of dousing, he was then rolled up in the plastic

5 sheet and “left to shiver violently in the cold for some 10 or 15 minutes.” (Id. at ¶ 88).

6 He claims he was forced naked into “a small wooden box, measuring about three square

7 feet”, which was locked with a padlock. Inside, the box smelled “rancid” and he

8 “vomited in pain and fear” while locked inside the box. (Id. at ¶ 91-92).

9

Mr. Salim claims after two or three weeks of these “aggressive” methods he was

10 assessed by his interrogators to be “broken” and “cooperative.” (Id. at ¶ 104). Mr. Salim

11 occasionally met with people he believed to be health care providers and received

12 treatment. He was given a polygraph test. (Id. at ¶ 105). Shortly thereafter, he claims

13 he was given “three very painful injections in his arm”, against his will. He states he

14 does not know what happened after his face went numb and he fell asleep/lost

15 consciousness. (Id. at ¶ 106). After some four or five weeks in custody, he alleges he

16 attempted to kill himself by taking pain pills. (Id. at ¶ 107).

17

Shortly after the suicide attempt, Mr. Salim was transferred by CIA personnel to

18 another site in Afghanistan he states was known as the “Salt Pit” and remained there for

19 14 months, often in solitary confinement. (Id. at ¶ 109). Thereafter he was transferred to

20 Bagram Air Force Base, where he was detained for four years, in a small cage in a

21 “hangar-type building” with constant illumination. He was never allowed outside. (Id.

22 at ¶ 111). After being released Mr. Salim contends he continues to suffer repercussions

23 from the torture: debilitating pain in his jaw and teeth; pain in his back, shoulders, and

24 legs; frequent nightmares/flashbacks; and other symptoms of post-traumatic stress

25 disorder (PTSD). (Id. at ¶ 115-116).

26

B. Allegations of Mr. Soud

27

Mr. Soud is a Libyan citizen, who allegedly fled Libya fearing prosecution from

28 ORDER - 3

1 the Gadaffi regime and went to Pakistan, where in 2003 his home was raided by U.S. and

2 Pakistani forces. (Complaint at ¶ 117-18). During the raid, he states he was shot which

3 shattered a bone in his left leg. He claims he was detained, interrogated, and abused for

4 two weeks after the raid by Pakistani and U.S. officials. (Id. at ¶ 119). He denied any

5 knowledge of terrorism plans against the U.S. or any connection to al-Qa’ida. He alleges 6 he was then told he was not being cooperative and transported to COBALT2. He alleges

7 he was subjected to several of the same interrogation techniques as Mr. Salim, including:

8 prolonged sleep deprivation, stress positions, walling, being slapped, dietary

9 manipulation, facial holds, cramped confinement, and a form of waterboarding. (Id. at ¶

10 121). Mr. Soud claims that after he arrived at COBALT he was told “he was a prisoner

11 of the CIA, that human rights ended on September 11, and that no laws applied in

12 prison.” (Id. at ¶ 124).

13

At COBALT, Mr. Soud was “kept naked for more than a month” and he was not

14 allowed to wash for five months. (Id. at ¶ 127-28). Mr. Soud alleges he was given

15 meager meals of poor nutritional quality and during his year-long detention at COBALT

16 his weight fell from 187 to 139 pounds. (Id. at ¶ 129). He additionally claims to have

17 been subjected to prolonged sleep deprivation which “drove him close to madness”. (Id.

18 at ¶ 131). He alleges about two weeks after he arrived at COBALT the “torture increased

19 in severity” and moved into an “aggressive phase” that lasted four to five weeks. (Id. at

20 ¶ 133-34). He alleges he was subjected to “walling” where a foam collar was placed

21 around his neck, and he was then thrown into a wooden wall, while also being slapped

22 in the face and stomach. (Id. at ¶ 137-38). Similar to Mr. Salim, he describes being

23 doused in ice water while on a plastic sheet. These methods of interrogation allegedly

24 lasted for approximately two weeks, until another interrogation team took over.

25

Mr. Soud alleges the new interrogation team increased the severity of the physical

26 beatings. (Id. at ¶ 142). He states he was also subjected to two different confinement

27 2COBALT is alleged to be a CIA prison in Afghanistan. (Complaint ¶ 9).
28 ORDER - 4

1 boxes. After two to three weeks, the second interrogation team found Mr. Soud to be

2 “broken” and “cooperative” and stopped the aggressive interrogation tactics. Mr. Soud

3 was held by the U.S. Government, often in solitary confinement, until August 22, 2004

4 when he was turned over to the Libyan Government. In Libya, Mr. Soud was sentenced

5 to life imprisonment, but was released in 2011 after the overthrow of the Gaddafi regime.

6 (Id. at ¶ 153). Mr. Soud alleges he “continues to suffer both physically and

7 psychologically from the tortures he endured” while in the custody of the U.S.

8 Government. (Id. at ¶ 154).

9

C. Allegations of Gul Rahman

10

Gul Rahman was born in Afghanistan. In October 2002, Mr. Rahman was living

11 in Pakistan where we was detained by a joint U.S./Pakistani operation. Plaintiff alleges

12 that in November 2002, “Defendant Jessen conducted a psychological evaluation of Mr.

13 Rahman at COBALT.” (Complaint at ¶ 160). Defendant Jessen allegedly concluded Mr.

14 Rahman was resistant and further torture would be required to break his will. It is alleged

15 Defendant Jessen “directly participated in the more aggressive phase” of Mr. Rahman’s

16 interrogation and “tortured” him. (Id.)

17

After Mr. Jessen left COBALT, the interrogation of Mr. Rahman allegedly

18 continued, using techniques such as: slaps, stress positions, dietary manipulation, sleep

19 deprivation, prolonged nudity, and water dousing. On November 19, 2002, Mr. Rahman

20 was chained, partially nude, in a stress position, with temperatures in the 30s. The next

21 morning he was found dead. The autopsy report listed the likely cause of death as

22 hypothermia, with contributing factors of dehydration, lack of food, and “immobility due

23 to short chaining.” (Id. at ¶ 164).

24

Plaintiffs allege Mr. Rahman’s death was investigated by the CIA and included in

25 a CIA Inspector General Report in 2004, but no one was held accountable. Plaintiffs

26 allege Mr. Rahman’s death was concealed from the public until 2010. (Id. at 165-167).

27

28 ORDER - 5

1

D. Alleged Conduct and Involvement of Defendants

2

Defendant James Mitchell is a U.S. citizen and a psychologist. He was the chief

3 psychologist at the Survival, Evasion, Resistance, and Escape (“SERE”) training program

4 at Fairchild Air Force Base near Spokane, Washington. From 2001 to 2005 he “worked

5 as an independent contractor for the CIA”, and from 2005 to 2009 worked at Mitchell,

6 Jessen & Associates in Spokane, Washington, and continued to work under contract with

7 the CIA. (Complaint at ¶ 12). Defendant John “Bruce” Jessen is also a psychologist, U.S.

8 citizen, and worked under contract with the CIA and at Mitchell, Jessen & Associates in

9 Spokane, Washington. (Id. at ¶ 13).

10

Plaintiffs allege Defendants began working with the CIA in December 2001.

11 Defendants allegedly produced a “white paper” for the CIA entitled: “Recognizing and

12 Developing Countermeasures to Al-Qa’ida Resistance to Interrogation Techniques: A

13 Resistance Training Perspective.” (Id. at ¶ 24). The paper allegedly proposed

14 countermeasures that could be employed to defeat resistance to interrogations, and

15 according to Plaintiffs “justified the use of torture and other forms of cruel, inhuman, and

16 degrading treatment.” (Id. at ¶ 25). The paper allegedly described a theory of “learned

17 helplessness”.

18

In March 2002, U.S. authorities captured Abu Zubaydah and Defendant Mitchell

19 was allegedly contacted to provide “real-time recommendations to overcome Zubaydah’s

20 resistance to interrogation.” (Id. at ¶ 32). Mitchell allegedly encouraged the CIA to

21 develop the learned helplessness techniques. (Id.) In April 2002, “CIA Headquarters sent

22 Mitchell to GREEN [a CIA black-site prison] to consult on the psychological aspects of

23 Abu Zubaydah’s interrogation.” (Id. at ¶ 34). Allegedly there was a dispute between the

24 CIA and FBI as to whether Zubaydah should be tortured, and control of the interrogation

25 was transferred to the CIA and led by Mitchell. (Id. at ¶ 35-37). In July 2002, the CIA

26 and Mitchell believed Zubaydah was being “uncooperative” and decided to pursue a more

27 “aggressive” phase of interrogation, and contracted with Defendant Jessen to assist

28 ORDER - 6

1 Mitchell. (Id. at ¶ 41-42). The Complaint alleges Jessen and Mitchell proposed 12

2 coercive methods, and the CIA agreed to propose 11 of them to the Attorney General.

3 On July 24, 2002, the Attorney General allegedly verbally approved all of the proposed

4 methods except waterboarding. (Id. at ¶ 43-44). Defendants argued waterboarding was

5 a convincing technique and necessary, and the Attorney General approved it on July 26,

6 2002. Plaintiffs allege Defendants “personally conducted or oversaw” aspects of

7 Zubaydah’s interrogation, including physically assaulting him, forcing him into

8 confinement boxes, and waterboarding. (Id. at ¶ 46-48).

9

Plaintiffs claim Defendants pronounced the interrogation of Zubaydah a “success”

10 and recommended the CIA use the aggressive coercion methods for future high value

11 captives. (Id. at ¶ 55-56). Defendants then allegedly devised the program of CIA

12 “enhanced interrogation techniques” including “designing instruments of torture such as

13 confinement boxes”. (Id. at ¶ 57). Defendants “trained and supervised CIA personnel in

14 applying their phased torture program”. (Id. at ¶ 62). Plaintiffs allege that “together

15 with the CIA, Defendants supervised and oversaw” the program including assessing: 1)

16 whether prisoners had been tortured long enough to induce “learned helplessness”; 2)

17 what combinations and sequences of torture were most effective; and 3) had the prisoners

18 become fully compliant. (Id. at ¶ 63). Plaintiffs allege the CIA has since concluded that

19 Defendants should not have assessed the effectiveness of the techniques, because

20 Defendants had designed the techniques and had a financial conflict of interest in the

21 continuation of the interrogation program. (Id. at ¶ 64). Plaintiffs contend that between

22 2001 and 2010, Defendants, and the company they formed, Mitchell, Jessen, &

23 Associates, were paid over $80 million to provide “security teams for renditions,

24 interrogators, facilities, training, operational psychologists, de-briefers, and security

25 personnel at all CIA detention sites.” (Id. at ¶ 65-68).

26

II. Standard of Review

27

Defendants bring their Motion pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).

28 ORDER - 7

1 Federal Rule of Civil Procedure 8(a)(2) requires only a “short and plain statement of the

2 claim showing the pleader is entitled to relief.” This rule does not require “detailed

3 factual allegations” but does require more than labels and conclusions. Twombly, 550

4 U.S. at 555. “To survive a motion to dismiss, a complaint must contain sufficient factual

5 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft

6 v. Iqbal, 556 U.S. at 677.

7

As to the jurisdictional challenge under Rule 12(b)(1), Defendants argue they can

8 “challenge the sufficiency of the pleadings to establish jurisdiction (facial attack), or a

9 lack of any factual support for subject matter jurisdiction despite the pleading’s

10 sufficiency (factual attack)”. (ECF No. 27, p. 2). A factual attack “contests the truth of

11 the plaintiff’s factual allegations, usually by introducing evidence outside the pleadings.” 12 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). If a defendant raises a factual

13 attack on subject matter jurisdiction, a plaintiff must then support jurisdictional

14 allegations with competent proof. Id. Defendants have presented no evidence outside the

15 pleadings to support a “factual attack.” Therefore, the court reviews this matter as a

16 facial attack, accepting the Plaintiffs’ allegations as true and drawing all reasonable

17 inferences in the Plaintiffs’ favor and determining if those allegations are sufficient to

18 invoke the court’s jurisdiction. Id.

19

III. Discussion

20

Defendants raise four primary arguments in support of dismissal: 1) the court lacks

21 jurisdiction due to the Political Question Doctrine; 2) Defendants are entitled to

22 derivative sovereign immunity; 3) the Alien Tort Statute does not confer jurisdiction over

23 Plaintiffs' claims; and 4) Plaintiff Obaid Ullah lacks the capacity to sue. Plaintiffs contest

24 all these arguments in their Response (ECF No. 28).

25

A. Political Question Doctrine

26

Defendants argue the case is not justiciable due to the Political Question Doctrine

27 and claim Plaintiffs seek review of “foreign policy” choices. Defendants argue there are

28 ORDER - 8

1 not “judicially manageable standards” and that there is no clear definition of torture.

2 (ECF No. 27, p. 7). Plaintiffs rebut this argument and claim prisoner abuse and torture

3 are not unreviewable political decisions, and argue prior case law demonstrates such are

4 justiciable.

5

Executive branch decisions are not immune from judicial review. See for example

6 N.L.R.B. v. Noel Canning, 134 S.Ct. 2550 (2014)(holding the President lacked the power

7 to make the recess appointments at issue in the case). “Courts in the United States have

8 the power, and ordinarily the obligation, to decide cases and controversies properly 9 presented to them.” Alperin v. Vatican Bank, 410 F.3d 532, 539 (9th Cir. 2005). The

10 Supreme Court set forth its most detailed discussion of the political question doctrine in

11 Baker v. Carr, 369 U.S. 186, 217 (1962), wherein the Court articulated six

12 considerations: 1) is there a textually demonstrable constitutional commitment of the

13 issue to a coordinate political department; 2) a lack of judicially discoverable and

14 manageable standards for resolving the case; 3) the impossibility of deciding the case

15 without an initial policy determination of the kind clearly for nonjudicial discretion; 4)

16 the impossibility of the court undertaking independent resolution without expressing lack

17 of respect for coordinate branches of government; 5) an unusual need for unquestioning

18 adherence to a political decision already made; or 6) potentiality of embarrassment from

19 multifarious pronouncements by various departments on one question.

20

These six factors have been described as “formulations” and “six independent

21 tests,” yet there is often overlap. Alperin, 410 F.3d at 544. In the arena of foreign affairs,

22 the Supreme Court has “cautioned against sweeping statements that imply all questions

23 involving foreign relations are political ones.” Id. at 544-45 citing Baker v. Carr.

24 Defendants argue the Constitution commits decisions involving war and foreign policy

25 to the Executive and Legislative branches. However, Defendants' argument sweeps too

26 broadly, and the Supreme Court has stated, “it is error to suppose that every case or

27 controversy which touches foreign relations lies beyond judicial cognizance.” Baker, 369

28 ORDER - 9

1 U.S. at 211. The Ninth Circuit has stated: “The Supreme Court has made clear that the

2 federal courts are capable of reviewing military decisions, particularly when those 3 decisions cause injury to civilians.” Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir.

4 1992).

5

Defendants also argue no judicially manageable standards apply and contend there

6 is no clear definition of “torture”. This argument is rejected. Courts are well-equipped

7 to construe the meaning of terms and do so frequently. Congress passed the Torture

8 Victims Protection Act in 1991, and the TVPA contains a definition of “torture”. Other

9 statutes also define "torture". See for example 18 U.S.C. 2340 ("torture" means an act

10 committed by a person acting under color of law specifically intended to inflict severe

11 physical or mental pain or suffering..."); 18 U.S.C. § 2241(d)(1)(A)(defining “torture”

12 under the War Crimes Act). Thus, it cannot credibly be argued that no judicially

13 manageable standards exist to adjudicate a case involving allegations of "torture". Nor

14 is the adjudication of cases involving "torture" a relatively recent development. See

15 Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2nd Cir. 1980)("We conclude that official

16 torture is now prohibited by the law of nations. The prohibition is clear and

17 unambiguous, and admits of no distinction between treatment of aliens and citizens.").

18 The Ninth Circuit has stated “the unconstitutionality of torturing a United States citizen 19 was beyond debate by 2001.” Padilla v. Yoo, 678 F.3d 748, 763 (9th Cir. 2012). In 20 Chowdhury v. Worldtel Bangladesh Holding, 746 F.3d 42, 51 (2nd Cir. 2014), the court

21 concluded that administering electric shocks for the purpose of coercion met the

22 definition of “torture”. The inquiry under the second Baker factor is not “whether the

23 case is unmanageable in the sense of being large, complicated, or otherwise difficult to

24 tackle from a logistical standpoint,” but rather whether the courts “have the legal tools

25 to reach a ruling that is principled, rational, and based upon reasoned distinctions.”

26 Alperin, 410 F.3d at 552.

27

Defendants further argue the remaining four Baker factors support this court

28 ORDER - 10

1 declining jurisdiction based on the Political Question Doctrine. The argument submitted

2 as to those four factors is brief. The Defendants’ arguments as to the remaining Baker

3 factors is limited. Plaintiffs have not addressed it in their Response. This focus on the

4 first two factors is not surprising. See Alperin, 410 F.3d at 545 (“The Vieth plurality’s

5 observation that the Baker tests ‘are probably listed in descending order of both

6 importance and certainty,’ 124 S.Ct. at 1776, is borne out by the disproportionate

7 emphasis on the first two tests in both Supreme Court and lower court cases.”).

8

Some courts apply a different variation of the Baker factors, in cases such as this,

9 that include Government contractor defendants. The Fourth Circuit has stated it has

10 “distilled the six Baker factors into two critical components: 1) whether the government

11 contractor was under the ‘plenary’ or ‘direct’ control of the military; and 2) whether

12 national defense interests were ‘closely intertwined’ with military decisions governing

13 the contractor’s conduct, such that a decision on the merits of the claim would require the

14 judiciary to question actual, sensitive judgments made by the military.” Al Shimari v. 15 CACI Premier Technology, 758 F.3d 516, 533-34 (4th Cir. 2014). The Fourth Circuit’s

16 test requires a court to “look beyond the complaint” and consider “facts developed

17 through discovery or otherwise made a part of the record in the case.” Id. at 534. No

18 discovery has yet been conducted in this case.

19

In Reply (ECF No. 29), Defendants rely heavily on the District Court opinion from

20 the Eastern District of Virginia, Al Shimari v. CACI Premier Technology, 119 F.Supp.3d

21 434 (E.D.Va. 2015), where the court dismissed the action based on the political question

22 doctrine. Although the parties agree Al Shimari is relevant, and Plaintiffs cite the Fourth

23 Circuit opinion, as discussed infra, in regard to ATS jurisdiction, the District Court’s

24 opinion is not controlling authority. The case is currently on appeal to the Fourth Circuit.

25 Furthermore, the Al Shimari case sits in a very different procedural posture, with the

26 District Court having made its decision after seven years of litigation and “based on the

27 discoverable evidence presented.” Id. at 438. In contrast, this Motion to Dismiss seeks

28 ORDER - 11

1 dismissal on the pleadings, when no discovery has taken place.

2

The court finds the very decisions cited in the briefing on the political question

3 issue are contrary to Defendants’ argument. The Ninth Circuit has already adjudicated

4 a case involving the several year detention of an American citizen, allegedly “held

5 incommunicado in military detention, subjected to coercive interrogation techniques and

6 detained under harsh conditions.” The Defendant was a Deputy Assistant Attorney 7 General with the Department of Justice. See Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012).

8 The Supreme Court found it had jurisdiction to “consider challenges to the legality of

9 detention of foreign nationals captured abroad in connection with hostilities and

10 incarcerated at the Guantanamo Bay Naval Base.” See Rasul v. Bush, 542 U.S. 466

11 (2004). Much closer in time to the events of September 11, 2001, the courts of this

12 country have adjudicated cases involving Executive and Legislative branch actions taken

13 in response to those attacks. See for example Hamdi v. Rumsfeld, 542 U.S. 507, 509

14 (2004)(“At this difficult time in our Nation’s history, we are called upon to consider the

15 legality of the Government’s detention of a United States citizen on United States soil as

16 an ‘enemy combatant’ ... We hold that although Congress authorized the detention of

17 combatants in the narrow circumstances alleged here, due process demands that a citizen

18 held in the United States as an enemy combatant be given a meaningful opportunity to

19 contest the factual basis for that detention before a neutral decisionmaker.”). The Ninth

20 Circuit has stated that a “claim of military necessity will not, without more, shield

21 governmental operations from judicial review.” Koohi v. United States, 976 F.2d 1328, 22 1331 (9th Cir. 1992). The court further stated, “this is true in time of war as well as in

23 time of peace, and with respect to claims by enemy civilians as well as by Americans.”

24 Id. at 1332. Although application of the political question doctrine is case-specific, the

25 cases cited demonstrate the present fallacy of Defendants’ argument that the court must

26 decline jurisdiction because the case falls within the realm of war and foreign policy.

27

The court does not find, based on the current record, that the Baker factors require

28 ORDER - 12

1 the court to decline jurisdiction based on the political question doctrine. Defendants’

2 Motion to Dismiss on political question grounds is DENIED.

3

B. Derivative Sovereign Immunity

4

Defendants claim private citizens and contractors who are performing work on the

5 Government’s behalf are immune from suit under the doctrine of derivative sovereign

6 immunity. Defendants argue Plaintiffs claim Defendants acted pursuant to contract with

7 the CIA and Plaintiffs cannot “allege that the authority conferred upon Defendants

8 pursuant to their contracts with the CIA was improperly conferred or that Defendants

9 exceeded this authority.” (ECF No. 27, p. 14). Defendants also contend in their Motion

10 to Dismiss that the Ninth Circuit’s decision in Gomez v. Campbell-Ewald, 768 F.3d 871 11 (9th Cir. 2014) was wrongly decided. However, after the Motion was filed, the Gomez

12 decision was affirmed by the Supreme Court, infra.

13

Plaintiffs, in their Response, rely on the Supreme Court’s recent decision in

14 Campbell-Ewald v. Gomez, 136 S.Ct. 663 (Jan. 20, 2016), wherein the Supreme Court

15 framed the question as: “Do federal contractors share the Government’s unqualified

16 immunity from liability and litigation?” Id. at 672. The Court answered the question

17 quite succinctly and definitively: “We hold they do not.” Id. Plaintiffs further argue the

18 Government may not immunize illegal acts by delegating them to private parties.

19 Plaintiffs argue the Executive could not lawfully authorize torture and abuse, and

20 therefore immunity does not shield the Defendants. Additionally, Plaintiffs argue

21 Defendants are not entitled to derivative immunity under Filarsky v. Delia, 132 S.Ct.

22 1657 (2012) because psychologists were not traditionally entitled to immunity at common

23 law and Defendants violated clearly established rights. (ECF No. 28, p. 16).

24

Government contractor immunity “unlike the sovereign’s, is not absolute.”

25 Campbell-Ewald, 136 S.Ct. at 672. An inquiry is required into whether the contractor

26 “exceeded his authority,” or whether the governmental authority “was not validly

27 conferred.” Id. at 673. In either of those circumstances, the contractor could be liable.

28 ORDER - 13

1 It is too early in this action, where no discovery has been conducted, to make a qualified

2 immunity determination. As the Supreme Court instructed in Campbell-Ewald, “at the

3 pretrial state of litigation, we construe the record in a light favorable to the party seeking

4 to avoid summary disposition.” Id. Plaintiffs’ allegations are not merely that Defendants

5 Mitchell and Jessen acted specifically at the direction of the Government, but rather that

6 they designed and implemented an experimental torture program. (ECF No. 1, ¶ 20).

7 Plaintiffs allege it was Defendants who proposed the “pseudoscientific theory” of

8 “learned helplessness.” (Id. at ¶ 25). Plaintiffs allege, “Defendants helped convince

9 Justice Department lawyers to authorize specific coercive methods” and argued to the

10 Attorney General for the use of waterboarding as “an absolutely convincing technique.”

11 (Id. at ¶ 43-44). It is also alleged Jessen and Mitchell personally participated in the

12 torture of Abu Zubaydah, including waterboarding. (Id. at ¶ 46-52).

13

Rather than merely acting at the direction of Government personnel, it is alleged

14 “Defendants trained and supervised CIA personnel in applying their phased torture

15 program.” (Id. at ¶ 62). Plaintiffs allege Defendants operated under a conflict of interest

16 where Defendants were allowed to judge the effectiveness of the interrogation methods

17 when they had a financial interest in the program continuing. (Id. at ¶ 64). It is alleged

18 Defendants ultimately were paid over $80 million for their efforts. (Id. at ¶ 68). Given

19 the allegations of the Complaint, which must be accepted as true at this stage in the

20 litigation, the court cannot conclude Defendants Mitchell and Jessen merely acted at the

21 direction of the Government, within the scope of their authority, and that such authority

22 was legally and validly conferred. See also Cabalce v. Thomas E. Blanchard &

23 Associates, 797 F.3d 720, 732 (9th Cir. 2015)("We have held that derivative sovereign

24 immunity ... is limited to cases in which a contractor 'had no discretion in the design

25 process and completely followed government specifications.'").

26

Defendants’ Motion to Dismiss on the basis of derivative sovereign immunity is

27 DENIED.

28 ORDER - 14

1

C. Alien Tort Statute

2

Defendants contend Plaintiffs’ allegations do not overcome the presumption

3 against extraterritorial application of the Alien Tort Statute, 28 U.S.C. § 1350, (“ATS”)

4 as set forth by the Supreme Court in Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659

5 (2013). Defendants claim Plaintiffs have failed to plead sufficient facts to demonstrate

6 their actions “touch and concern” the territory of the United States.

7

Plaintiffs counter that although the alleged “injuries were sustained abroad,

8 virtually every fact underpinning their claims is connected to the United States.” (ECF

9 No. 28, p. 20). Plaintiffs rely on Al Shimari v. CACI Premier Tech, Inc., 758 F.3d 516 10 (4th Cir. 2014), which they contend is the “most closely analogous” case. Paragraph 18

11 of the Complaint contains several allegations which Plaintiffs contend demonstrate the

12 claims herein “touch and concern” the United States. Plaintiffs allege:

13

- Defendants are U.S. citizens;

14

- Defendants are domiciled in the U.S.;

15

- Defendants devised the torture plan in the U.S.;

16

- Defendants supervised the plan’s implementation from the U.S. and pursuant to

17 contracts they executed with the CIA in the U.S.; and

18

- Plaintiffs were subjected to the interrogation methods while in the custody and

19 control of the CIA in detention facilities operated by the U.S. government.

20 (ECF 1, ¶ 18).

21

The Ninth Circuit has recognized the Supreme Court in Kiobel v. Royal Dutch

22 Petroleum, 133 S.Ct. 1659 (2013), did not delineate the “touch and concern” test with a 23 great deal of specificity. In Mugica v. AirScan Inc., 771 F.3d 580 (9th Cir. 2014), the

24 court stated: “Admittedly, Kiobel (quite purposely) did not enumerate the specific kinds

25 of connections to the United States that could establish that ATS claims ‘touch and

26 concern’ this country.” Id. at 594. The court recognized a defendant’s U.S. citizenship

27 is an appropriate factor to consider, but that a plaintiff cannot bring an action based solely

28 ORDER - 15

1 on extraterritorial conduct merely because the defendant is a U.S. national. Mugica is

2 factually distinguishable from the case at bar. In Mugica, the plaintiffs were Colombian

3 citizens who brought suit in California arising out of the bombing of a Colombian village

4 by members of the Colombian Air Force. Id. at 584. Plaintiffs sued two U.S.-

5 headquartered corporations for their alleged complicity in the bombing. The Mugica

6 majority decision dismissed the claim on the basis that the ‘touch and concern’ test was

7 not met by the mere allegation that the defendants were United States corporations.

8

This case, as Plaintiffs contend, bears more similarity to Al Shimari v. CACI

9 Premier Technology, 758 F.3d 516 (4th Cir. 2014). In Al Shimari, four foreign citizens

10 brought claims against a U.S. corporation that was a military contractor alleging they

11 were tortured during their detention at Abu Ghraib. The Fourth Circuit found important

12 that the claims involved the performance of a contract executed by a U.S. corporation

13 with the U.S. Government. Also, the court considered the defendant was headquartered

14 in Virginia, the alleged torture occurred at a U.S. military facility, defendant hired

15 employees in the U.S. to perform the contract, and defendant collected payments by

16 mailing invoices to a government office in Colorado. Id. at 528-29.

17

In the present case, the two individual Defendants are U.S. citizens. The

18 Defendants ran a company, located in Spokane, Washington, that allegedly employed 55

19 to 60 people to assist with the enhanced interrogation program at CIA detention sites.

20 (Complaint ¶ 67). Plaintiffs allege Defendants devised and supervised the interrogation

21 program from the United States. Plaintiffs claim Defendants executed contracts with the

22 CIA in the United States. Although the court has not seen the alleged contracts, it is

23 certainly plausible that a company located in the United States and the CIA, a U.S.

24 agency, executed a contract in the United States. Similarly, as Mitchell, Jessen, &

25 Associates was located in Spokane, Washington, it is also plausible that, as alleged, work

26 on the interrogation program was performed from the United States. Plaintiffs’

27 allegations are sufficient to overcome the presumption against extraterritorial application

28 ORDER - 16

1 of the ATS.

2

Defendants also argue Plaintiffs fail to state a claim for relief under the ATS. The

3 Supreme Court has stated that although the ATS is primarily jurisdictional, “we think that

4 at the time of enactment the jurisdiction enabled federal courts to hear claims in a very

5 limited category defined by the law of nations and recognized at common law.” Sosa v.

6 Alvarez-Machain, 542 U.S. 692, 712 (2004). The Court further stated that lower courts

7 “should require any claim based on the present-day law of nations to rest on a norm of

8 international character accepted by the civilized world and defined with specificity 9 comparable to the features of the 18th-century paradigms we have recognized.” Id. at 725. 10 It is recognized torture violates the law of nations. See Filartiga, 630 F.2d at 878 (2nd Cir.

11 1980)(“we hold that deliberate torture perpetrated under color of official authority

12 violates universally accepted norms of the international law of human rights, regardless

13 of the nationality of the parties.”)

14 The majority opinion of the Supreme Court in Kiobel addressed only jurisdiction, and

15 not whether plaintiffs stated a claim. 133 S.Ct. at 1664 (“The question here is not whether

16 petitioners have stated a proper claim under the ATS, but whether a claim may reach

17 conduct occurring in the territory of a foreign sovereign.”). However, Justice Breyer, in

18 concurrence and joined by Justices Ginsburg, Sotomayor, and Kagan clearly found the

19 ATS reached acts of torture:

20

We should treat this Nation’s interest in not becoming a safe harbor for violators

of the most fundamental international norms as an important jurisdiction-related

21

interest justifying application of the ATS in light of the statute’s basic purposes–in

22

particular that of compensating those who have suffered harm at the hands of, e.g.,

torturers or other modern pirates. Nothing in this statute or its history suggests that

23

our courts should turn a blind eye to the plight of victims in that “handful of

24

heinous actions. Id. at 674.

25 By analogy to piracy, which was covered by the ATS at the time of its enactment, it is 26 clear the four concurring Justices believed that those who commit torture fall within the 27 reach of the ATS, both as to jurisdiction and substantively.
28 ORDER - 17

1

Plaintiffs have sufficiently alleged the acts of Defendants “touch and concern” the

2 United States, such as to rebut the presumption against extraterritorial application of the

3 ATS. Plaintiffs have further alleged that the Defendants engaged in torture, and

4 substantively state a claim under the ATS. Defendants’ Motion to Dismiss for lack of

5 jurisdiction and failure to state a claim under the ATS is DENIED.

6

D. Capacity of Obaid Ullah

7

Defendants contend that capacity to sue is determined by state law, and under

8 Washington law, a personal representative must be appointed by a court. Defendants

9 argue the allegation that Mr. Ullah is the personal representative of Mr. Rahman (ECF

10 No. 1, ¶ 11) is insufficient. Plaintiffs respond they are not required to plead the facts

11 supporting legal capacity, and in any event, Mr. Ullah is the court appointed personal

12 representative. Plaintiffs have submitted an Order from the Spokane County Superior

13 Court, dated September 24, 2015 (before this action was commenced), demonstrating that

14 Mr. Ullah was appointed as personal representative of Mr. Rahman’s estate. (ECF No.

15 28-1). Defendants Motion to Dismiss Mr. Ullah for lack of capacity is DENIED.

16

IV. Conclusion

17

Defendants’ Motion to Dismiss asks the court to dismiss the action, with prejudice,

18 based solely on the allegations in the Complaint. No discovery has taken place, and the

19 court has been presented with no materials outside the pleadings. Taking the well-

20 pleaded factual allegations as true, and for the reasons stated herein, the Motion to

21 Dismiss is denied.

22 IT IS HEREBY ORDERED:

23

1. Defendants’ Motion to Dismiss (ECF No. 27) is DENIED.

24

2. The court discussed with counsel for the parties and with Department of Justice

25 attorney Andrew Warden the discovery process in this matter. The parties have agreed

26 to discuss further a proposed discovery plan and to submit that plan to the court. The

27 proposed plan concerning both the procedure for discovery and scope shall be submitted

28 ORDER - 18

1 no later than May 23, 2016.

2

IT IS SO ORDERED. The Clerk shall enter this Order and furnish copies to

3 counsel.

4

Dated this 28th day of April, 2016.

5

s/ Justin L. Quackenbush

JUSTIN L. QUACKENBUSH

6

SENIOR UNITED STATES DISTRICT JUDGE

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28 ORDER - 19

Salim et al v. Mitchell et al, Docket No. 2:15-cv-00286 (E.D. Wash. Oct 13, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Eastern District of Washington; United States District Court for the Eastern District of Washington Other Statutory Actions[890] 2:15-cv-00286

© 2017 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 20

 
 1

2

3

UNITED STATES DISTRICT COURT

4

EASTERN DISTRICT OF WASHINGTON

5

6 SULEIMAN ABDULLAH SALIM, et al., )

)

7

) No. CV-15-0286-JLQ

Plaintiffs,

)

8

) ORDER RE: MOTION TO DISMISS

)

9

vs.

)

10

) )

11

JAMES E. MITCHELL and JOHN JESSEN,

) )

12

Defendants.

) )

13 ___________________________________ )

14

BEFORE THE COURT is Defendants' Motion to Dismiss (ECF No. 105). The

15 Motion has been fully briefed, and telephonic argument was held on January 19, 2017.

16 Dror Ladin, Hina Shamsi, Steven Watt, and Emily Chiang appeared for Plaintiffs, with

17 Mr. Ladin taking the lead. James Smith, Brian Paszamant, Henry Schuelke, III, and

18 Christopher Tompkins appeared for Defendants, with Mr. Smith taking the lead. Counsel

19 did not appear for Interested Party, the United States of America.

20

I. Introduction and Procedural Background

21

The Complaint in this matter alleges Plaintiffs Suleiman Abdullah Salim (“Salim”),

22 Mohamed Ahmed Ben Soud (“Soud”), and Obaid Ullah (“Ullah”)1(collectively herein

23 Plaintiffs) were the victims of psychological and physical torture. Plaintiffs are all

24 foreign citizens and bring these claims pursuant to the Alien Tort Statute, 28 U.S.C. §

25 1Ullah is the personal representative of the Estate of Gul Rahman who allegedly “died as a result
26 of hypothermia caused by his exposure to extreme cold, exacerbated by dehydration, lack of food, and
27 his immobility in a stress position.” (Complaint ¶ 3).
28 ORDER - 1

1 1350. Plaintiffs allege the Defendants, James Mitchell and John Jessen, “are

2 psychologists who designed, implemented, and personally administered an experimental

3 torture program for the U.S. Central Intelligence Agency.” (Complaint, ¶ 1).

4

The Complaint was filed on October 13, 2015. Defendants filed a Motion to

5 Dismiss (ECF No. 27) in January 2016. After briefing and oral argument, that Motion

6 was Denied. (See Memorandum Opinion of April 28, 2016, at ECF No. 40). Thereafter

7 the court issued a Scheduling Order (ECF No. 59) and the parties have engaged in

8 discovery. A dispute between Defendants and the Central Intelligence Agency

9 concerning the scope of a subpoena and document production led to additional litigation

10 in case number 16-mc-0036-JLQ. The document production was completed on

11 December 20, 2016. Trial in this matter is set for June 26, 2017.

12

The Defendants’ instant Motion was filed on November 18, 2016, and contends

13 the Military Commissions Act (“MCA”), specifically 28 U.S.C. § 2241(e)(2), deprives

14 this court of jurisdiction over “non-habeas detention-related claims” brought by an alien

15 when the alien was determined to have been properly detained by the United States as an

16 “enemy combatant”. (ECF No. 105, p. 1). Plaintiffs’ Response (ECF No. 12) contends

17 the MCA does not apply for two primary reasons: 1) Defendants are not military

18 servicemembers or government employees or agents, but are independent contractors; and

19 2) none of the three Plaintiffs were determined by an executive branch tribunal to have

20 been properly detained as an enemy combatant. (ECF No. 120, p. 1).

21

II. Standard of Review

22

As this is review of a motion to dismiss under Fed.R.Civ.P. 12, the Plaintiffs’

23 factual allegations are taken as true, unless they do not pass the plausibility standard of

24 Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544

25 (2007). Defendants bring the Motion pursuant to Fed.R.Civ.P. 12(b)(1) and argue the

26 court lacks subject-matter jurisdiction due to operation of the MCA. When reviewing a

27 motion to dismiss pursuant to Rule 12(b)(1) this court may review evidence. McCarthy

28 ORDER - 2

1 v. United States, 850 F.2d 558, 560 (9th Cir. 1988). Attacks on jurisdiction can be either

2 facial, confining inquiry to the allegations in the complaint, or factual, permitting the

3 court to look beyond the complaint. Savage v. Glendale High School, 343 F.3d 1036, 4 1040 n. 2 (9th Cir. 2003). The parties have filed documentary evidence in support of, and

5 in opposition to, the Motion and the court has considered those filings.

6

III. The Complaint

7

Because the central focus of the instant Motion To Dismiss is whether Plaintiffs

8 were classified as “enemy combatants,” and whether the Defendants were “agents” of the

9 United States or independent contractors, the court sets forth the relevant allegations from

10 the Complaint. Salim is alleged to be a Tanzanian citizen who was detained in Somalia

11 in March 2003, where he was working as a fisherman and trader. (Complaint ¶ 9). The

12 Complaint alleges Salim was released from U.S. custody in August 2008 and given a

13 Department of Defense memorandum stating he had “been determined to pose no threat

14 to the United States Armed Forces or its interests in Afghanistan.” (Id.).

15

Soud is a Libyan citizen who was detained in Pakistan in 2003 and held by the U.S.

16 Government until 2005. (Id. at ¶ 10). The Complaint alleges Soud had fled Libya fearing

17 persecution under the Gadaffi regime. (Id. at ¶ 117). Rahman is alleged to have been an

18 Afghan citizen who was living in a refugee camp in Peshawar, Pakistan. He was

19 allegedly taken into custody by the CIA in November 2002, in Pakistan. (Id. at ¶ 11).

20 The Complaint alleges he went into Islamabad for a medical appointment, and spent the

21 night at a friend’s home. The friend’s home was raided and Rahman was detained by

22 joint United States and Pakistani forces. (Id. at ¶ 156). Defendants Mitchell and Jessen

23 are alleged to have worked as independent contractors for the CIA. (Id. at ¶¶ 12-13).

24 Plaintiffs allege Defendants “aided and abetted” and “conspired or acted together with

25 agents of the United States” in subjecting Plaintiffs to torture, cruel, inhuman, and

26 degrading treatment. (Id. at ¶¶ 170-171).

27 / / /

28 ORDER - 3

1

IV. Discussion

2

Defendants’ Motion to Dismiss argues the action must be dismissed because the

3 MCA divests the court of jurisdiction. The two main areas of dispute between the parties

4 are: 1) whether Defendants are “the United States or its agents”; and 2) whether Plaintiffs

5 were “determined by the United States to have been properly detained as an enemy

6 combatant”; both within the meaning of 2241(e)(2).

7

A. Military Commissions Act

8

The relevant statutory provision, 28 U.S.C. 2241(e)(2) provides:

9

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee

10

Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have

jurisdiction to hear or consider any other action against the United States or its

11

agents relating to any aspect of the detention, transfer, treatment, trial, or

12

conditions of confinement of an alien who is or was detained by the United States

and has been determined by the United States to have been properly detained as

13

an enemy combatant or is awaiting such determination.

14

The Ninth Circuit Court of Appeals has established a five element test for

15 determining whether the court lacks jurisdiction under the MCA: 1) the action is against

16 the “United States or its agents”; 2) the action relates to “any aspect of the detention,

17 transfer, treatment, trial or conditions of confinement of an alien who is or was detained

18 by the United States”; 3) the action relates to an alien who was “determined by the United

19 States to have been properly detained as an enemy combatant” or an alien awaiting such

20 a determination; 4) the action is other than an application for writ of habeas corpus; and

21 5) the action does not qualify for an exception under the Detainee Treatment Act. Hamad

22 v. Gates, 732 F.3d 990, 995 (9th Cir. 2013). It appears the parties agree the second,

23 fourth, and fifth requirements for application of subsection (e)(2) are met. However,

24 Plaintiffs contest the first and third requirements. Plaintiffs contend Defendants are not

25 “agents” of the United States and Plaintiffs were never “determined by the United States

26 to have been properly detained as an enemy combatant.”

27 / / /

28 ORDER - 4

1

B. Agents of the United States

2

Defendants’ Motion spends only a page and a half discussing this issue, and seems

3 to present as a given fact that Jessen and Mitchell were “agents” of the United States.

4 (ECF No. 105, p. 7-8). Defendants rely on legislative history, a statement by Senator

5 Harkin, in opposition to the bill, stating it would immunize the CIA and “any contractors

6 with the CIA” for acts of torture. Defendants also argue the Complaint alleges they were

7 acting pursuant to a contract with the CIA.

8

Plaintiffs vigorously contest Defendants were “agents” of the United States. They

9 argue the MCA provision was intended to apply only to military service members and

10 government employees. (ECF No. 120, p. 1). Plaintiffs argue Defendants were

11 independent contractors, and not agents. Plaintiffs argue agency cannot be presumed, and

12 the burden is on Defendants to establish it, citing Atrium of Princeton v. NLRB, 684 F.3d

13 1310, 1315 (D.C. Cir. 2012)(“The party asserting that a relationship of agency exists

14 generally has the burden in litigation of establishing its existence”); and Karl Rove & Co. 15 v. Thornburgh, 39 F.3d 1273, 1296 (5th Cir. 1994)(“Agency is never to be presumed; it

16 must be shown affirmatively.”). Convincingly, the Plaintiffs cite to the contracts between

17 the CIA and Defendants, which repeatedly state the “legal status under this agreement is

18 that of Independent Contractor”. (ECF No. 120, p. 5 citing ECF No. 84-1). Defendants

19 do not point to any contractual language establishing an agency relationship.

20

Plaintiffs argue even if the court were inclined to consider legislative history, the

21 Defendants reliance on a statement of Senator Harkin, who opposed the bill, is not

22 probative. The court concurs with Plaintiffs on this point.

23

Plaintiffs further argue “Congress knows how to extend statutes to independent

24 contractors when it wishes to do so” (ECF No. 120 p. 7-8) and cites several statutes: 28

25 U.S.C. 1494 (granting jurisdiction over accounts of “any officer or agent of, or contractor

26 with, the United States”); 31 U.S.C. § 3729(b)(2) (False Claims Act applies to claims

27 “presented to an officer, employee, or agent of the United States” or “a contractor,

28 ORDER - 5

1 grantee, or other recipient”); 30 U.S.C. § 1716 (defining covered “person” as “any agent

2 or employee of the United States and any independent contractor”). These examples

3 illustrate there may be important distinctions between a “contractor” and an “agent”.

4 Congress did not use the word “contractor” in the MCA.

5

Defendants are referred to an “independent contractors” in their contracts with the

6 Government and not as “agents”. However, “whether a relationship is characterized as

7 an agency in an agreement between parties or in the context of the industry or popular

8 usage is not controlling.” Restatement (Third) of Agency § 1.02 (2006). Rather, "agency",

9 as defined at common law, "posits a consensual relationship in which one person, to one

10 degree or another or respect or another, acts as a representative of or otherwise acts on

11 behalf of another person with power to affect the legal rights and duties of the other

12 person." Id. at § 1.01, Comment (c). Plaintiffs argue Defendants did not have the power

13 to affect the legal rights and duties of the Government. Defendants focus on the control

14 issue, and argue Defendants were acting under the control of the Government.

15

The Restatement states "the common term 'independent contractor' is equivocal in

16 meaning and confusing in usage because some termed independent contractors are agents

17 while others are nonagent service providers." Id. The Ninth Circuit, albeit in a different

18 context, has agreed the term is equivocal: "Unlike employees, independent contractors

19 are not ordinarily agents." United States v. Bonds, 608 F.3d 495, 505 (9th Cir. 2010).

20 However, independent contractor status "does not preclude a finding the speaker is also

21 an agent for some purposes." Id.

22

Defendants’ Reply brief contains a more substantive discussion of the agency

23 issue, and Defendants contend “whether an agency relationship exists is a legal

24 conclusion made after an assessment of the facts of the relationship and the application

25 of the law of agency to those facts.” (ECF No. 126, p. 1). Defendants also argue the

26 Plaintiffs’ use of a blanket rule that independent contractors are not agents “ignores, and

27 does not discuss, the facts showing that Defendants acted on behalf of and subject to the

28 ORDER - 6

1 control of the United States.” (ECF No. 126, p. 3). Defendants have not submitted any

2 evidence to the court to convincingly establish an agency relationship. While an

3 'independent contractor' could be in an agency relationship with a principal whom it has

4 contracted with, Defendants have not presented such facts. Defendants submitted over

5 170 pages of documents with the Motion to Dismiss (at ECF No. 106), but those

6 documents were directed to the issue of enemy combatant status, not agency.

7 Consideration of the Complaint, and the contractual language, does not establish an

8 agency relationship. It is telling the Defendants, who wish to establish the nature of the

9 legal relationship between themselves and the Government, did not cite to the contracts

10 in their Motion. The contracts (at ECF No. 84) also contain indemnification provisions

11 which may have been deemed unnecessary had the parties contemplated an agency

12 relationship that would entitle Defendants to governmental immunities. "The law

13 presumes that a party acts for himself, and the party asserting an agency relationship

14 bears the burden of proving the agency." MGIC Indem. Corp. v. Moore, 951 F.2d 361

15 (9th Cir. 1991)(unpublished). Defendants have not established, based on the record

16 submitted with the Motion to Dismiss, they were "agents" of the United States.

17

C. Enemy Combatant Status

18

The central focus of the briefing and evidentiary submissions is whether Plaintiffs

19 were determined to be “enemy combatants.” The issue of enemy combatant status is

20 unique as to each of the three Plaintiffs. The critical statutory language is:“is or was

21 detained by the United States and has been determined by the United States to have been

22 properly detained as an enemy combatant or is awaiting such determination.” 28 U.S.C.

23 § 2241(e)(2). Plaintiffs argue the determination must be made by a military tribunal, a

24 Combatant Status Review Tribunal (“CSRT”), to trigger the jurisdiction-stripping portion

25 of the statute. Defendants argue no tribunal finding is required, and appear to argue any

26 reference to an individual as a “combatant” in a governmental memo, or reference to

27 affiliation with a hostile organization, suffices.

28 ORDER - 7

1

In Janko v. Gates, 741 F.3d 136 (D.C. Cir. 2014), the Court of Appeals addressed

2 the meaning of “the United States” in the phrase “determined by the United States to have

3 been properly detained”. The court found “a determination by the United States is one

4 made by the Executive Branch.” Id. at 141. Janko was evaluated twice by CSRT’s and

5 found to be lawfully detained as an enemy combatant. Thereafter, he obtained habeas

6 review in federal district court, and the petition was granted. Janko argued he was

7 therefore never properly detained as an “enemy combatant”. The court disagreed, noting

8 “properly does not modify determined, it modifies detained.” Id. at 143. The court found

9 a determination by a CSRT was a determination by the United States: “we are convinced

10 that ‘determined by the United States to have been properly detained as an enemy

11 combatant’ refers to a determination by the executive-branch tribunal the Congress knew

12 was making that determination.” Id. at 145. The court found the language of the Detainee

13 Treatment Act and MCA demonstrated that Congress was well aware of the Executive

14 Branch’s practice of using CSRTs to make enemy combatant status determinations when

15 Congress drafted and passed the MCA. Id.

16

In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court struck down as

17 unconstitutional § 2241(e)(1) which stripped the courts of jurisdiction to hear petitions

18 for writ of habeas corpus filed by an alien detained by the United States and who had

19 been determined to have been properly detained as an enemy combatant. The court found

20 the statute to be an unconstitutional suspension of the writ of habeas corpus and the

21 petitioners who were aliens, were found to "have the habeas corpus privilege." Id. at 732.

22 The Supreme Court further stated: "Because the Constitution's separation-of-powers

23 structure, like the substantive guarantees of the Fifth and Fourteenth Amendments,

24 protects persons as well as citizens, foreign nationals who have the privilege of litigating

25 in our courts can seek to enforce separation-of-powers principles." Id. at 743 (internal

26 citations omitted).

27

The Court in Boumediene also discussed the history of legislative and executive

28 ORDER - 8

1 branch response to the 9/11 terror attacks, including the creation of CSRT. In so doing,

2 the court recognized the procedural protections afforded at a CSRT hearing are "limited"

3 and "fall well short of the procedures and adversarial mechanisms that would eliminate

4 the need for habeas corpus review." Id. at 767. At the CSRT the Government's "evidence

5 is accorded a presumption of validity." Id. The Court further stated: "Although we make

6 no judgment whether the CSRTs, as currently constituted, satisfy due process standards,

7 we agree with petitioners that, even when all parties involved in this process act with

8 diligence and in good faith, there is a considerable risk of error in the tribunal's findings

9 of fact." Id. at 785. The Supreme Court has thus left open the question of whether a CSRT

10 proceeding satisfies Due Process and found there is a "considerable risk of error" in a

11 CSRT determination. Plaintiffs argue a CSRT determination of “enemy combatant”

12 status is necessary to invoke the jurisdiction stripping provision of the MCA. Defendants

13 argue something less than a CSRT determination is sufficient, and a CSRT is not a

14 required.

15

In Boumediene the Supreme Court stated § 2241(e) was unconstitutional. Id. at 795

16 ("The only law we identify as unconstitutional is MCA § 7, 28 U.S.C. § 2241(e)).

17 Subsection (e) has two parts: (1) dealing with habeas corpus, and (2) claims such as those

18 at issue in this case. Courts, including the Ninth Circuit, have found that sub-section (2)

19 can be severed and survived Boumediene. See Hamad v. Gates, 732 F.3d 990 (9th Cir.

20 2013)("Although Boumediene did not expressly differentiate between 2241(e)(1) and (2),

21 the logic and context of the opinion make clear that the Supreme Court was addressing

22 only 2241(e)(1).")

23

With this background, the court now addresses the enemy combatant status issue

24 as to each of the three Plaintiffs:

25

1. Salim - Defendants argue Salim is referred to in documents produced by the

26 CIA as “combatant”, “Low Level Enemy Combatant”, and “HLEC”, which Defendants

27 state “presumably stands for High Level Enemy Combatant.” (ECF No. 105, p. 2).

28 ORDER - 9

1 Defendants admit Salim was later reclassified as “No Longer Enemy Combatant.”

2 Defendants contend these classifications were made by an Enemy Combatant Review

3 Board. (Id.).

4

Plaintiffs contend Salim was found not to be an enemy combatant by the Unlawful

5 Enemy Combatant Review Board (“UECRB”) at Bagram Airforce Base, and whatever

6 preliminary determination there may have been concerning Salim’s status is not sufficient

7 to strip the court of jurisdiction. On this point, the Fourth Circuit’s now vacated decision 8 in al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007), although not controlling, is relevant

9 and of some persuasive value. There the court stated: “The statute’s use of the phrase

10 ‘has been determined ... to have been properly detained” requires a two-step process to

11 remove 2241 jurisdiction: 1) an initial decision to detain, followed by 2) a determination

12 by the United States that the initial detention was proper.” Id. at 169. The Fourth Circuit

13 required an Executive Branch tribunal decision, subsequent to the initial decision, finding

14 the detention was proper.

15

The documentary evidence concerning Salim suggests conflicting results.

16 Defendants cite to (ECF No. 106, Ex. B) appearing to recommend Salim be detained as

17 a “low level enemy combatant”. Then Defendants contend in March 2007, an Enemy

18 Combatant Review Board designated Salim as a “high level enemy combatant”. (ECF No.

19 106, Ex. D). However, Defendants admit the very next year, in 2008, Salim was

20 redesignated as “no longer enemy combatant” and released. (Id. at Ex. I). The report

21 states a conclusion “that although [Salim] was an associate of the conspirators, he was

22 uniformly considered too addicted to drugs to be trusted with operations.” (Id.)

23

This presents a difficult question of conflicting determinations by the Executive

24 Branch. It also raises the following questions: 1) is a two-step determination required as

25 stated by the Fourth Circuit panel in al-Marri v. Wright; 2) is a CSRT determination

26 required; and 3) what is the result of multiple inconsistent determinations by the

27 Executive Branch? In Jawad v. Gates, 832 F.3d 364, 368 (D.C. Cir. 2016), the court

28 ORDER - 10

1 stated: “We assume Jawad is right, as a matter of law, that the government could override

2 a prior determination that an alien had been properly detained by issuing a new

3 determination to the contrary in habeas litigation.” However, the court seemed to draw

4 a distinction: “It never said that Jawad was not properly detained, only that the United

5 States would no longer treat him as such.” Id.

6

From the documents submitted, there are references to Salim as “low level” enemy

7 combatant, “HLEC” (presumably “high level” enemy combatant), and as no longer an

8 enemy combatant. The second review by the Review Board found him to not be an

9 enemy combatant, pose no danger to the United States, and directed his release. Thus,

10 if a two-step determination is required, the second determination reversed the first, and

11 the third requirement for the MCA to apply would not be satisfied. However, if the 2007

12 determination is sufficient determination of enemy combatant status, then the court could

13 find the enemy combatant element satisfied as to Salim. The court need not definitively

14 resolve the issue of enemy combatant status at this juncture, as Defendants have not

15 established they were acting as agents of the United States. All five requirements must

16 be met for the MCA to apply.

17

2. Soud - Defendants point to no documentation referring to Soud as an “enemy

18 combatant”. Defendants rely on documents referring to him as a “probable member of

19 Libyan Islamic Fighting Group,” calling his capture a success in the war on terrorism,

20 stating he “may have important information about al-Qa-ida network” and that he may

21 pose a threat to U.S. persons and interests. (ECF No. 105, p. 3). Defendants admit none

22 of the documents they have obtained in discovery “use the specific words ‘enemy

23 combatant’” to describe Soud, but contend the documents “make it clear that the CIA

24 determined that it was proper to detain and then transfer, and then render, Soud.” (Id. at

25 17). Defendants contend “because the CIA determined that it was proper to detain Soud

26 based on his membership in a terrorist group, this Court lacks jurisdiction over his

27 claims.” (Id.).

28 ORDER - 11

1

Section 2241(e)(2) does not state this court lacks jurisdiction to hear the claims of

2 anyone thought by the CIA to be a member of a terrorist group. The statute states: “...has

3 been determined by the United States to have been properly detained as an enemy

4 combatant.” Defendants point to no evidence Soud was ever determined to be an enemy

5 combatant by an Executive Branch tribunal. Defendants’ reading of the statute would

6 allow an agency memo’s mere reference to a possible affiliation with a terrorist

7 organization to strip the federal courts of jurisdiction to hear torture claims. Such a

8 reading would raise serious constitutional concerns. Defendants have failed to prove

9 Soud was ever determined by the United States to have been properly detained as an

10 “enemy combatant”.

11

3. Gul Rahman - Defendants rely upon a CIA Inspector General report from

12 2005, three years after Rahman’s death in U.S. custody, to support the conclusion that he

13 was an “enemy combatant”. The Report states Rahman was a “suspected Afghan

14 extremist associated with the Hezbi Islami Gulbuddin”. (ECF No. 106-11). It further

15 states that following Rahman’s rendition to COBALT six cables were generated: “Only

16 one of these cables, which reported the chronology of Rahman’s death, provided a

17 characterization of Rahman, describing him as an ‘enemy combatant.’” (ECF No. 106-11,

18 at p. 8). Defendants have presented no evidence Gul Rahman was determined to be an

19 enemy combatant prior to his death.

20

Plaintiffs argue no determination was made as to Rahman’s status. (ECF No. 120,

21 p. 20). In Reply, Defendants acknowledge no formal determination as to status was made

22 prior to his death, but that Rahman could be considered to be “awaiting such

23 determination” within the terms of § 2241(e)(2). The Complaint alleges Rahman was

24 captured on October 29, 2002, and rendered by the CIA on November 5, 2002. (ECF No.

25 1, ¶¶ 157-58). Rahman died in custody on November 20, 2002. He was in CIA custody

26 for less than 1 month, which may not have been sufficient time for a formal Executive

27 Branch tribunal determination. Also, 2002 was prior to the use of CSRTs and prior to the

28 ORDER - 12

1 enactment of the MCA in 2006. Defense counsel stated at oral argument CSRTs came

2 into use in July 2004.

3

There is little case law construing the “awaiting such determination” language in

4 2241(e)(2). The most extensive discussion is in al-Marri v. Wright, 487 F.3d 160 (4th Cir.

5 2007), vacated by en banc review. There the court rejected the Government’s argument

6 that they planned to provide petitioner with a CSRT in the future. The court noted al-

7 Marri had been in custody four years: “If al-Marri is ‘awaiting’ a CSRT it is only because

8 he might, through the good graces of the Executive, some day receive one. But he might

9 not.” Id. at 173. The court further stated the phrase “awaiting such determination”

10 applies to “alien detainees captured and held outside the United States–whom Congress

11 both believed had no constitutional right to habeas and expected would receive a CSRT.”

12 Id. Gul Rahman was an alien detainee captured and held outside the United States.

13 However, as CSRTs were not in use at the time of his death, it is not reasonable to

14 consider him “awaiting such determination” from a CSRT or other Executive Branch

15 tribunal. Defendants have presented no evidence Rahman was determined by the United

16 States to have been properly detained as an enemy combatant prior to his death.

17 Defendants have not satisfied the court the “awaiting such determination” language

18 should be read so broadly as to encompass the alleged facts concerning Rahman.

19

V. Conclusion

20

This is not a case where the United States is a named party. Nor have Plaintiffs

21 brought suit directly against the CIA, military servicemembers, or governmental

22 employees. Instead this is an action against two individuals who were working as

23 independent contractors with the CIA. Defendants assert an agency relationship with the

24 Government, and thus have the burden of proving it. They have not done so. All of the

25 documentary evidence submitted with the Motion to Dismiss was directed at the issue of

26 “enemy combatant” status, not at the agency claims. (See ECF No. 106 and attachments).

27 Defendants have not relied on any of the language from their contracts with the

28 ORDER - 13

1 Government in arguing for an “agency” determination. Defendants belatedly, at the time

2 of oral argument, requested an evidentiary hearing, but did not convincingly argue what

3 evidence would be presented. Plaintiffs opposed the request. On the instant record, the

4 agency relationship is not established, and thus the Motion To Dismiss must be denied.

5

None of the three Plaintiffs was determined by a Combatant Status Review

6 Tribunal to be an “enemy combatant.” Each of the three Plaintiffs’ status determinations

7 is unique. Salim was initially determined to be an enemy combatant and then later

8 determined by the Unlawful Enemy Combatant Review Board at Bagram Airforce Base

9 to not pose a threat to the United States. (See ECF No. 121-1). The Executive Branch

10 made two conflicting, but temporally separate, determinations as to Salim’s status. Soud

11 was never determined by any tribunal to be an “enemy combatant”. Defendants have not

12 presented any documentation that Soud was classified as an enemy combatant. The MCA

13 clearly does not strip jurisdiction over Soud’s claims. Gul Rahman died approximately

14 one month after he was captured and transferred to United States custody. No evidence

15 has been presented that a status determination was made prior to his death, and none was

16 made by a CSRT. Gul Rahman was referred to as “enemy combatant” in a CIA Report

17 in 2005, more than two years after his death. The MCA does not strip jurisdiction over

18 Gul Rahman’s claims unless the court finds he was “awaiting such determination” within

19 the meaning of 2241(e)(2). The court does not so find.

20

IT IS HEREBY ORDERED:

21

Defendants’ Motion to Dismiss (ECF No. 105) is DENIED.

22

The Clerk shall enter this Order and furnish copies to counsel.

23

Dated January 27, 2017.

24

s/ Justin L. Quackenbush

JUSTIN L. QUACKENBUSH

25

SENIOR UNITED STATES DISTRICT JUDGE

26

27

28 ORDER - 14

Salim et al v. Mitchell et al, Docket No. 2:15-cv-00286 (E.D. Wash. Oct 13, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Eastern District of Washington; United States District Court for the Eastern District of Washington Other Statutory Actions[890] 2:15-cv-00286

© 2017 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 15

 
 Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9393 Page 1 of 43

1

2

UNITED STATES DISTRICT COURT

3

EASTERN DISTRICT OF WASHINGTON

4

5 SULEIMAN ABDULLAH SALIM, et al., )

)

6

) No. CV-15-0286-JLQ

Plaintiffs,

)

7

) MEMORANDUM OPINION

) RE: MOTIONS FOR SUMMARY

8

vs.

) JUDGMENT

)

9

)

JAMES E. MITCHELL and JOHN

)

10 JESSEN,

)

)

11

Defendants.

)

___________________________________ )

12

BEFORE THE COURT are Defendants’ Motion for Summary Judgment (ECF No.

13

169), Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 178), and Defendants’

14

Motion to Exclude (ECF No. 198). Response and Reply briefs have been filed and

15

considered. The parties have submitted a voluminous record of over 4,000 pages of

16

evidentiary exhibits. The court heard oral argument on the Motions on July 28, 2017.

17

James Smith, Henry Schuelke, III, Brian Paszamant, and Christopher Tompkins appeared

18

for Defendants James Mitchell and John Jessen. Hina Shamsi, Steven Watt, Dror Ladin,

19

Lawrence Lustberg, and Jeffry Finer appeared for Plaintiffs Suleiman Abdullah Salim,

20

Mohamed Ahmed Ben Soud, and Obaid Ullah. The court issued its preliminary oral

21

ruling. This Opinion memorializes and supplements the court’s oral ruling.

22

I. Introduction and Factual Allegations from Complaint

23

The Complaint in this matter alleges Plaintiffs Suleiman Abdullah Salim (“Salim”),

24
Mohamed Ahmed Ben Soud (“Soud”), and Gul Rahman (“Rahman”)1(collectively herein

25

Plaintiffs) were the victims of psychological and physical torture. Plaintiffs are all

26

27 1Obaid Ullah is the personal representative of the Estate of Gul Rahman.
28 ORDER - 1

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9394 Page 2 of 43

1 foreign citizens and bring these claims pursuant to the Alien Tort Statute, 28 U.S.C. §

2 1350 (hereafter “ATS”). Plaintiffs allege the Defendants, James Mitchell and John

3 Jessen, “are psychologists who designed, implemented, and personally administered an

4 experimental torture program for the U.S. Central Intelligence Agency.” (Complaint, ¶

5 1).

6

A. Allegations of Mr. Salim

7

Plaintiff Salim is a Tanzanian citizen who was captured by the CIA and Kenyan

8 Security Forces in Somalia in March, 2003, where he was working as a trader and

9 fisherman. He was transferred to official U.S. Government sites in Afghanistan and held

10 there for a total of sixteen months. In July 2004, he was transferred to Bagram Air Force

11 Base in Afghanistan and held in custody there for an additional four years, until being

12 released in August 2008. (Complaint ¶ 9). Mr. Salim alleges he was subjected to

13 numerous coercive methods, including: prolonged sleep deprivation, walling, stress

14 positions, facial slaps, abdominal slaps, dietary manipulation, facial holds, and cramped

15 confinement. (Id. at ¶ 74). He also claims he was subjected to prolonged nudity and

16 “water dousing that approximated waterboarding.”(Id.). The conditions of his

17 confinement are pled with great specificity, including that he was kept in a dark, frigid

18 cell, “continually chained to the wall” in a stress position in which the “only position he

19 could adopt was a squatting position that very quickly became uncomfortable and

20 extremely painful” and was fed a meager meal of “a small chunk of bread in a watery

21 broth–only once every other day.” (Id. at ¶ 79-82).

22

The allegations of interrogation methods are pled with great detail. (Complaint ¶¶

23 71-116). By way of brief example, the following: Mr. Salim alleges being stripped

24 naked and then placed, cuffed and shackled on the center of a large plastic sheet where,

25 he alleges, he was repeatedly doused with ice-cold water and kicked and slapped in the

26 stomach and face. After 20 to 30 minutes of dousing, he was then rolled up in the plastic

27 sheet and “left to shiver violently in the cold for some 10 or 15 minutes.” (Id. at ¶ 88).

28 ORDER - 2

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9395 Page 3 of 43

1 He claims he was forced naked into “a small wooden box, measuring about three square

2 feet”, which was locked with a padlock. Inside, the box smelled “rancid” and he

3 “vomited in pain and fear” while locked inside the box. (Id. at ¶ 91-92).

4

Mr. Salim claims after two or three weeks of these “aggressive” methods he was

5 assessed by his interrogators to be “broken” and “cooperative.” (Id. at ¶ 104). Mr. Salim

6 occasionally met with people he believed to be health care providers and received

7 treatment. He was given a polygraph test. (Id. at ¶ 105). He claims shortly thereafter he

8 was given “three very painful injections in his arm”, against his will. He states he does

9 not know what happened after his face went numb and he fell asleep/lost consciousness.

10 (Id. at ¶ 106). After some four or five weeks in custody, he alleges he attempted to kill

11 himself by taking pain pills. (Id. at ¶ 107).

12

Shortly after the suicide attempt, Mr. Salim was transferred by CIA personnel to

13 another site in Afghanistan he states was known as the “Salt Pit” and remained there for

14 14 months, often in solitary confinement. (Id. at ¶ 109). Thereafter he was transferred to

15 Bagram Air Force Base, where he was detained for four years, in a small cage in a

16 “hangar-type building” with constant illumination. He was never allowed outside. (Id.

17 at ¶ 111). After being released Mr. Salim contends he continues to suffer repercussions

18 from the torture: debilitating pain in his jaw and teeth; pain in his back, shoulders, and

19 legs; frequent nightmares/flashbacks; and other symptoms of post-traumatic stress

20 disorder (PTSD). (Id. at ¶ 115-116).

21

B. Allegations of Mr. Soud

22

Mr. Soud is a Libyan citizen, who allegedly fled Libya fearing prosecution from

23 the Gadaffi regime and went to Pakistan, where in 2003 his home was raided by U.S. and

24 Pakistani forces. (Complaint at ¶ 117-18). He states during the raid he was shot which

25 shattered a bone in his left leg. He claims he was detained, interrogated, and abused for

26 two weeks after the raid by Pakistani and U.S. officials. (Id. at ¶ 119). He denied any

27 knowledge of terrorism plans against the U.S. or any connection to al-Qa’ida. He alleges

28 ORDER - 3

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9396 Page 4 of 43

1 he was then told he was not being cooperative and transported to COBALT2. He alleges

2 he was subjected to several of the same interrogation procedures as Mr. Salim, including:

3 prolonged sleep deprivation, stress positions, walling, being slapped, dietary

4 manipulation, facial holds, cramped confinement, and a form of waterboarding. (Id. at ¶

5 121). Mr. Soud claims that after he arrived at COBALT he was told “he was a prisoner

6 of the CIA, that human rights ended on September 11, and that no laws applied in

7 prison.” (Id. at ¶ 124).

8

At COBALT, Mr. Soud was “kept naked for more than a month” and he was not

9 allowed to wash for five months. (Id. at ¶ 127-28). Mr. Soud alleges he was given

10 meager meals of poor nutritional quality and during his year-long detention at COBALT

11 his weight fell from 187 to 139 pounds. (Id. at ¶ 129). He additionally claims to have

12 been subjected to prolonged sleep deprivation which “drove him close to madness”. (Id.

13 at ¶ 131). He alleges about two weeks after he arrived at COBALT the “torture increased

14 in severity” and moved into an “aggressive phase” that lasted four to five weeks. (Id. at

15 ¶ 133-34). He alleges he was subjected to “walling” where a foam collar was placed

16 around his neck, and he was then thrown into a wooden wall, while also being slapped

17 in the face and stomach. (Id. at ¶ 137-38). Similar to Mr. Salim, he describes being

18 doused in ice water while on a plastic sheet. These methods of interrogation allegedly

19 lasted for approximately two weeks, until another interrogation team took over.

20

Mr. Soud alleges the new interrogation team increased the severity of the physical

21 beatings. (Id. at ¶ 142). He states he was also subjected to two different confinement

22 boxes. After two to three weeks, the second interrogation team found Mr. Soud to be

23 “broken” and “cooperative” and stopped the aggressive interrogation tactics. Mr. Soud

24 was held by the U.S. Government, often in solitary confinement, until August 22, 2004

25 when he was turned over to the Libyan Government. In Libya, Mr. Soud was sentenced

26 to life imprisonment, but was released in 2011 after the overthrow of the Gaddafi regime.

27 2COBALT is alleged to be a CIA prison in Afghanistan. (Complaint ¶ 9).
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1 (Id. at ¶ 153). Mr. Soud alleges he “continues to suffer both physically and

2 psychologically from the tortures he endured” while in the custody of the U.S.

3 Government. (Id. at ¶ 154).

4

C. Allegations Concerning Gul Rahman

5

Gul Rahman was born in Afghanistan. In October 2002, Mr. Rahman was living

6 in Pakistan where we was detained by a joint U.S./Pakistani operation. Plaintiff alleges

7 that in November 2002, “Defendant Jessen conducted a psychological evaluation of Mr.

8 Rahman at COBALT.” (Complaint at ¶ 160). Defendant Jessen allegedly concluded Mr.

9 Rahman was resistant and further torture would be required to break his will. It is alleged

10 Defendant Jessen “directly participated in the more aggressive phase” of Mr. Rahman’s

11 interrogation and “tortured” him. (Id.)

12

After Mr. Jessen left COBALT, the interrogation of Mr. Rahman allegedly

13 continued, using techniques such as: slaps, stress positions, dietary manipulation, sleep

14 deprivation, prolonged nudity, and water dousing. On November 19, 2002, Mr. Rahman

15 was chained, partially nude, in a stress position, with temperatures in the 30s. The next

16 morning he was found dead. The autopsy report listed the likely cause of death as

17 hypothermia, with contributing factors of dehydration, lack of food, and “immobility due

18 to short chaining.” (Id. at ¶ 164). Plaintiffs allege Mr. Rahman’s death was investigated

19 by the CIA and included in a CIA Inspector General Report in 2004, but no one was held

20 accountable. Plaintiffs allege Mr. Rahman’s death was concealed from the public until

21 2010. (Id. at 165-167).

22

D. Alleged Conduct and Involvement of Defendants

23

Defendant James Mitchell is a U.S. citizen and a psychologist. He was the chief

24 psychologist at the Survival, Evasion, Resistance, and Escape (“SERE”) training program

25 at Fairchild Air Force Base near Spokane, Washington. From 2001 to 2005 he “worked

26 as an independent contractor for the CIA”, and from 2005 to 2009 worked at Mitchell,

27 Jessen & Associates in Spokane, Washington, and continued to work under contract with

28 ORDER - 5

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1 the CIA. (Complaint at ¶ 12). Defendant John “Bruce” Jessen is also a psychologist, U.S.

2 citizen, and worked under contract with the CIA and at Mitchell, Jessen & Associates in

3 Spokane, Washington. (Id. at ¶ 13).

4

Defendants allegedly produced a “white paper” for the CIA entitled: “Recognizing

5 and Developing Countermeasures to Al-Qa’ida Resistance to Interrogation Techniques:

6 A Resistance Training Perspective.” (Id. at ¶ 24). The paper proposed countermeasures

7 that could be employed to defeat resistance to interrogations, and according to Plaintiffs

8 “justified the use of torture and other forms of cruel, inhuman, and degrading treatment.”

9 (Id. at ¶ 25). The paper allegedly described a theory of “learned helplessness.”

10

In March 2002, U.S. authorities captured Abu Zubaydah and Defendant Mitchell

11 was contacted to provide “real-time recommendations to overcome Zubaydah’s resistance

12 to interrogation.” (Id. at ¶ 32). Mitchell allegedly encouraged the CIA to develop the

13 learned helplessness techniques. (Id.) In April 2002, “CIA Headquarters sent Mitchell

14 to GREEN [a CIA black-site prison] to consult on the psychological aspects of Abu

15 Zubaydah’s interrogation.” (Id. at ¶ 34). In July 2002, the CIA and Mitchell believed

16 Zubaydah was being “uncooperative” and decided to pursue a more “aggressive” phase

17 of interrogation, and contracted with Defendant Jessen to assist Mitchell. (Id. at ¶ 41-42).

18 The Complaint alleges Jessen and Mitchell proposed 12 coercive methods, and the CIA

19 agreed to propose 11 of them to the Attorney General. On July 24, 2002, the Attorney

20 General allegedly verbally approved all of the proposed methods except waterboarding.

21 (Id. at ¶ 43-44). Defendants argued waterboarding was a convincing technique and

22 necessary, and the Attorney General approved it on July 26, 2002. Plaintiffs allege

23 Defendants “personally conducted or oversaw” aspects of Zubaydah’s interrogation,

24 including physically assaulting him, forcing him into confinement boxes, and

25 waterboarding. (Id. at ¶ 46-48).

26

Plaintiffs claim Defendants pronounced the interrogation of Zubaydah a “success”

27 and recommended the CIA use the aggressive coercion methods for future high value

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1 captives. (Id. at ¶ 55-56). Defendants then allegedly devised the program of CIA

2 “enhanced interrogation techniques” including “designing instruments of torture such as

3 confinement boxes”. (Id. at ¶ 57). Defendants “trained and supervised CIA personnel in

4 applying their phased torture program”. (Id. at ¶ 62). Plaintiffs allege that “together

5 with the CIA, Defendants supervised and oversaw” the program including assessing: 1)

6 whether prisoners had been tortured long enough to induce “learned helplessness”; 2)

7 what combinations and sequences of torture were most effective; and 3) had the prisoners

8 become fully compliant. (Id. at ¶ 63). Plaintiffs contend that between 2001 and 2010,

9 Defendants, and the company they formed, Mitchell, Jessen, & Associates, were paid

10 over $80 million to provide “security teams for renditions, interrogators, facilities,

11 training, operational psychologists, de-briefers, and security personnel at all CIA

12 detention sites.” (Id. at ¶ 65-68).

13

II. Summary Judgment Factual Record

14

In summary judgment proceedings, the facts are viewed in a light most favorable

15 to the non-movant. However, in this instance the parties have filed cross-motions for

16 summary judgment. The following recitation attempts to set forth the undisputed

17 background facts. Significant disputes of fact are noted. Citation is frequently made to

18 ECF No. 201 because it is an over 200-page document which consolidates Defendants’

19 affirmative statement, Plaintiffs’ response, and Defendants’ reply. Additional facts are

20 discussed as pertinent to specific legal issues in “IV. Discussion” infra.

21

Defendants James Mitchell and John Jessen are psychologists. (D’s St. Of Facts,

22 ECF No. 201, ¶ 1). Defendant Mitchell began work with the Central Intelligence Agency

23 in August 2001, shortly before the terrorist attacks of September 11, 2001. (Id. at ¶ 2 &

24 4). On September 17, 2001, President Bush signed a Memorandum of Notification

25 authorizing the CIA “to capture and detain individuals who pose a continuing, serious

26 threat of violence or death to U.S. persons and interests or who are planning terrorist

27 activities.” (Id. at ¶ 6). The Director of the CIA then directed the CIA’s Counterterrorism

28 ORDER - 7

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1 Center (“CTC”) to establish a program to capture, detain, and interrogate al-Qa’ida

2 operatives to obtain critical threat and actionable intelligence. (Id. at ¶ 7). The CIA began

3 building secret detention facilities referred to as ‘black sites’. (Id. at ¶ 10).

4

On December 21, 2001, Mitchell entered into another contract with the CIA, this

5 time for “consultation and research on counterterrorism and special ops.” (ECF No. 201

6 at ¶ 11). On June 13, 2002, Mitchell’s contract with CIA was expanded for him to serve

7 as “consultant to CTC special programs.” (Id. at ¶ 14). Mitchell’s contract called for a

8 consultation fee of $1,000 to $1,800/day. At that time, Mitchell had thirteen years

9 experience with the U.S. Air Force’s Survival Evasion Resistance and Escape program

10 (“SERE”). (Id. at ¶ 16). Mitchell had previously collaborated with Jessen, who in 2002,

11 was employed by the Department of Defense. (Id. at ¶ 18). Jessen had also been part of

12 the SERE program and had “helped design an advanced course that specifically prepared

13 trainees for capture by terrorist groups.” (Id. at ¶ 20). The CIA asked Mitchell to review

14 the Manchester Manual, which contained instructions for resistance to interrogation, and

15 Mitchell requested that Jessen take part in the project. (ECF No. 201 at ¶ 21-22). Jessen

16 then contracted with the CIA on July 22, 2002. (Id. at ¶ 120). Defendants Mitchell and

17 Jessen drafted a paper on Al-Qa’ida’s resistance to interrogation techniques entitled,

18 “Recognizing and Developing Countermeasures to Al-Qa’ida Resistance to Interrogation

19 Techniques: A Resistance Training Perspective” (the “Resistance Paper”). (Id. at ¶ 23).

20

Abu Zubaydah (“AZ”) was captured by the United States on March 27, 2002. (ECF

21 No. 201, ¶ 25). Mitchell was part of the team to interrogate AZ. On April 1, 2002, a

22 cable was sent from CIA Headquarters to black site GREEN transmitting Defendants’

23 Resistance Paper. (Id. at ¶ 34). At GREEN, the Chief of Base (“COB”) reported to the

24 Station Representative who reported to Chief of Station who reported to CIA

25 Headquarters (hereafter ‘HQS’). (Id. at ¶ 41). In April 2002, Mitchell became part of a

26 team monitoring AZ’s interrogation that was led by a full-time CIA officer, who was also

27 a psychologist. (Id. at ¶ 42). Mitchell’s role was to observe the interrogation and make

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1 recommendations for overcoming AZ’s resistance to interrogation. (Id. at ¶ 43). Mitchell

2 reported directly to HQS and Jose Rodriguez, Chief Operation Officer, Counterterrorism.

3 (Id. at ¶ 44-45).

4

Mitchell made recommendations for environmental modifications to the holding

5 compound and interrogation room for AZ. (Id. at ¶ 46). The physical environment was

6 designed to “further disorient” AZ through the use of bright light, white noise, no natural

7 light, and sleep deprivation. (Id. at ¶ 51). One of the goals of this stage of the

8 interrogation was to induce a psychological state of “helplessness”. (Id. at ¶ 52). The

9 parties dispute whether the interrogation methods were designed to induce a state of

10 “learned helplessness.” The parties agree “learned helplessness” is a profound level of

11 helplessness that leads to feelings of depression, passivity, and withdrawal. (Id. at ¶ 54).

12 Defendants contend they did not advocate for “learned helplessness,” which is a disputed

13 fact. (ECF No. 201 at ¶ 56).

14

The interrogation team for AZ was specifically told that they were not limited to

15 traditional law enforcement methods because AZ was “not entitled to the legal

16 protections of the Geneva Conventions.” (Id. at ¶ 73). The interrogation of AZ began on

17 or about April 17, 2002. (Id. at ¶ 74). Mitchell assisted in identifying AZ’s resistance

18 methods and designing effective countermeasures. (Id. at ¶ 76). After each interrogation,

19 the interrogator prepared a formal report to HQS that set forth intelligence and the

20 interrogation team produced twice-daily situation reports. (Id. at ¶ 79).

21

On or about May 8, 2002, the interrogation team met to review strategy for further

22 interrogation. The team decided to interfere with AZ’s sleep “to degrade his ability to

23 maintain his full mental capacities.” (ECF No. 201 at 82). HQS ordered the AZ

24 interrogation team to press for threat-related information and increase the pressure,

25 including use of a confinement box. (Id. at 84 & 85). In June 2002 HQS held a meeting,

26 which Mitchell attended, to discuss the next phase of AZ interrogation. (Id. at ¶ 89). The

27 individuals present at the meeting believed AZ was withholding critical information and

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1 they needed to take a harder line. (Id. at ¶ 90-91).

2

The interrogation team tried an isolation phase with AZ which began on June 18,

3 2002. (Id. at ¶ 96). In late-June 2002, Rodriguez asked Mitchell to identify other

4 potential interrogation techniques that could be used on AZ to overcome his perceived

5 resistance and obtain more information. (Id. at ¶ 97). In July 2002, Mitchell attended a

6 meeting at HQS to discuss further refining tactics. (Id. at ¶ 98). The major focus of the

7 meeting was to consider the next phase of interrogations, a “last hard push” to

8 concentrate on “pending terrorist attacks”. (Id. at ¶ 101). Mitchell suggested the use of

9 various techniques that had been used on SERE trainees, which included walling,

10 cramped confinement, stress positions, sleep deprivation, water boarding, and mock

11 burial. (Id. at ¶ 104). At the time he made the suggestion, Mitchell did not know he

12 would become an interrogator. (Id. at ¶ 107). Mitchell explained the goal of these

13 techniques would be to “dislocate” AZ’s expectations and the interrogation could produce

14 “fear, helplessness, compliancy, or false hope.” (Id. at ¶ 108).

15

At the conclusion of the July 2002 meeting at HQS, Rodriguez asked Mitchell to

16 consider working with the CIA to use some or all of the techniques he had suggested. (Id.

17 at ¶ 114). Mitchell requested the CIA also hire Jessen to assist him with the interrogation

18 of AZ, and Rodriguez approved the request. (Id. at ¶ 115 & 116). Jessen agreed to assist

19 and became an independent contractor with the CIA on July 22, 2002. (Id. at ¶ 120).

20 Mitchell and Rodriguez had several meeting at HQS. On July 8, 2002, another meeting

21 was held at HQS, which was attended by several people including Mitchell, Jessen,

22 Rodriguez, and Rizzo. (Id. at ¶ 123). An “increased pressure phase” was discussed, as

23 well as Mitchell’s suggested interrogation techniques. (Id. at ¶ 124). After the meeting,

24 Rodriguez requested Defendants provide him with a written list identifying potential

25 interrogation techniques, describing how they could be implemented, and their intended

26 effect on AZ. (Id. at ¶ 125). Defendants drafted a memo (hereafter ‘July 2002 Memo’)

27 for Rodriguez based on their knowledge of interrogation techniques used at SERE. (Id.

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1 at ¶ 127). The techniques listed in the July 2002 Memo came to be known as Enhanced

2 Interrogation Techniques (“EITs”). (ECF No. 201 at ¶ 131).

3

The CIA thereafter sent a cable discussing the “next phase” of the AZ interrogation

4 which contained descriptions of the EITs consistent with the July 2002 Memo. (Id. at ¶

5 132-34). The cable stated water boarding and mock burial would require Attorney

6 General approval and the others “can be approved by the CIA’s legal staff.” (Id. at ¶ 135).

7 The CIA, not Defendants, determined what approvals from the U.S. Government were

8 required for the EITs. (Id. at ¶ 139). On July 13, 2002, Rizzo met with John Yoo, Deputy

9 Assistant Attorney General, and others from Department of Justice and Office of Legal

10 Counsel (“OLC”) and the various EITs were discussed, with an emphasis on water board

11 and mock burial. (Id. at ¶ 141). At this meeting, Rizzo reported the interrogation team

12 had concluded more aggressive methods were required for the AZ interrogation. (Id.).

13 Rizzo further informed it was not their intent to permit AZ to die and appropriately

14 trained medical personnel would be on site, but there was always a risk of heart attack,

15 stroke, or other adverse event. (Id.).

16

Thereafter, Rizzo requested Defendants comment on the short and long term

17 psychological effects of water boarding and mock burial. (ECF No. 201, at 145). While

18 assessing the EITs the CIA prepared a memo acknowledging the effects of the EITs may

19 be different than in the SERE school setting. The memo stated techniques “are

20 administered to student volunteers in the U.S. in a harmless way, with no measurable

21 impact on the psyche of the volunteer, we do not believe we can assure the same here for

22 a man forced through these processes and who will be made to believe this is the future

23 course of the remainder of his life. While the CIA will make every effort possible to

24 ensure that the subject is not permanently physically or mentally harmed, some level of

25 risk still exists.” (Id. at ¶ 150).

26

On July 17, 2002, Rodriguez and Rizzo were informed National Security Adviser

27 Condoleeza Rice had approved the use of EITs on AZ. (Id. at ¶ 152). On July 23, 2002,

28 ORDER - 11

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1 a cable was sent to HQS, stating in part that IC (independent contractor) SERE 2 psychologists3 “recommend using an escalating interrogation strategy” and “the

3 escalation must culminate with pressure which is absolutely convincing.” (Id. at ¶ 154).

4 The cable further stated: “The plan hinges on the use of an absolutely convincing

5 technique. The waterboard meets this need.” (Id.).

6

On August 1, 2002, Rizzo received a confidential memo from OLC Assistant

7 Attorney General Bybee (the “Bybee Memo”) which concluded that 10 of the proposed

8 EITs, including waterboarding, did not violate the prohibition against torture established

9 by 18 U.S.C. § 2340A. (ECF No. 201 at 165). This legal conclusion was communicated

10 to black-site GREEN, where AZ was being detained. The “aggressive phase” of the

11 interrogation of AZ then commenced on August 4, 2002. (Id. at ¶ 187). Defendants

12 applied EITs to AZ. (Id. at ¶ 188). After six days, on August 11, 2002, the interrogation

13 team sent a cable to HQS stating “it was highly unlikely Zubaydah had actionable new

14 information about current threats to the United States,” but he may be withholding

15 information on other issues. (Id. at ¶ 190). A few days later, Defendants recommended

16 that EITs not be used on AZ any longer. (Id. at ¶ 191). HQS instructed Defendants to

17 continue with use of the water board. (Id. at ¶ 194).

18

A videoconference was scheduled with HQS for August 13, 2002 to view the

19 application of the EITs to AZ. (Id. at ¶ 196). After the videoconference, HQS directed

20 the EITs continue for the next two-to-three weeks. (Id. at ¶ 199). Plaintiffs contend

21 Mitchell bears some blame for the continued interrogation of AZ because he had

22 originally recommended a 30-day period for EITs. (Id. at ¶ 200). On August 16, 2002,

23 a team from HQS arrived at GREEN to discuss the general strategy for AZ’s

24 interrogation. On August 19, 2002, Defendants used the water board on AZ while

25 individuals from CIA and GREEN’s Chief of Base observed. (ECF No. 201, at ¶ 206).

26 The aggressive phase of interrogation ended on August 23, 2002, because AZ was judged

27 3A reference to Defendants.
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1 to be “in a state of complete subjugation and total compliance.” (Id. at ¶ 207). Thereafter

2 a cable was transmitted between GREEN and HQS which recommended the aggressive

3 phase at GREEN “should be used as a template” for future interrogation of high value

4 captives. (Id. at ¶ 208). The parties dispute who wrote the cable, with Plaintiffs

5 contending it was authored by Defendants.

6

Thereafter the Office of Legal Counsel confirmed EITs could be used on other

7 detainees. (Id. at ¶ 209). Mitchell and Jessen understood that they were the only

8 individuals authorized to administer EITs until around November/December of 2002.

9 (ECF No. 201, at ¶ 225). On January 31, 2003, the CIA Director sent formalized

10 guidelines for detainee interrogations to all CIA black-sites, including COBALT. (Id. at

11 227 & 229). COBALT was not in the United States. (Id. at 254). A CIA Staff Officer

12 was Chief of Base (“COB”) at COBALT and arrived in August 2002, about a month

13 before the site became operational. (Id. at ¶ 255). When detainees arrived at COBALT,

14 it was the COB’s responsibility to interrogate them. (Id. at ¶ 258). The COB had no

15 formal training in interrogations until April 2003. (Id. at ¶ 260).

16

Plaintiff Salim was arrested in 20034 in Somalia and taken to COBALT where he

17 was detained for approximately 2 months. (Id. at 268). Salim was interrogated by CIA

18 agents and testified they put a cloth around his neck and were punching him against the

19 wall and putting him down and kicking him. (Id. at ¶ 269). Plaintiffs contend this was

20 Defendants’ EIT of “walling”, which Defendants dispute. Salim testified that while at

21 COBALT he was subjected to sleep deprivation, water dousing, cramped confinement,

22 slaps, grasps, and walling. (Id. at ¶ 270). Neither Mitchell or Jessen conducted Salim’s

23 interrogation, and Salim is not aware that he ever met Mitchell or Jessen. (Id. at ¶ 272).

24 Salim was transferred from CIA custody to Bagram Air Force Base in March 2004, and

25 was ultimately released by U.S. Government in 2008.

26

Plaintiff Soud was captured in Pakistan on April 3, 2003. (ECF No. 201 at ¶ 277).

27 4The Complaint alleges March 2003, the Statement of Facts asserts only 2003.
28 ORDER - 13

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1 Soud was transferred to COBALT later that month and held there for over a year. (Id. at

2 ¶ 278). He was subjected to sleep deprivation, nudity, dietary manipulation, facial hold,

3 attention grasp, abdominal slap, facial slap, stress positions, cramped confinement, water

4 dousing and walling. (Id. at ¶ 280). Defendants Mitchell and Jessen never interacted with

5 Soud at COBALT. Soud was released by U.S. Government on August 22, 2004. (Id. at

6 ¶ 281-82).

7

Rahman was captured in Pakistan in October 2002. (ECF No. 201 at ¶ 284).

8 Rahman was transferred to COBALT for interrogation. Defendant Jessen arrived at

9 COBALT in early November 2002. (Id. at ¶ 286). The COB asked Jessen to assess

10 Rahman and recommend interrogation tactics. (Id. at ¶ 289). The COB asked Jessen to

11 assess whether EITs should be used on Rahman. (Id. at ¶ 291). Jessen interrogated

12 Rahman over a 48-hour period and at one point used the facial slap EIT. (Id. at ¶ 292-93).

13 Jessen concluded Rahman was strong, centered, focused, and good at resistance. Jessen

14 recommended Rahman be interrogated frequently and that environmental deprivations

15 continue. (Id. at ¶ 295 & 297).

16

Jessen observed Rahman being subjected to two unauthorized techniques – the

17 “hard takedown” and cold showers. (Id. at ¶ 299 & 300). During the “hard takedown”

18 Rahman was dragged from his cell, his clothes cut off, hands taped, and a hood put over

19 his head. (ECF No. 175, Ex. S ¶ 107 ). Rahman was run up and down the hall, sometimes

20 stumbled and was dragged. (Id.). Rahman was slapped and punched in the stomach. (Id.).

21 Jessen said the takedown was “rehearsed and professionally executed” according to the

22 CIA’s Inspector General Report. (Id.). Mitchell then arrived at COBALT. (ECF No. 201

23 at ¶ 305). The COB at COBALT asked Defendants to administer a mental health status

24 exam and provide an assessment of interrogation measures. (Id. at ¶ 306). Mitchell

25 observed one interrogation of Rahman, but did not himself interrogate Rahman. (Id. at

26 ¶ 308). Jessen recommended a continued interrogation plan for Rahman, and sent a cable

27 to HQS stating in part: “The most effective interrogation plan for Gul Rahman is to

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1 continue the environmental deprivations he is experiencing and institute a concentrated

2 interrogation exposure regimen.” (Id. at ¶ 309). Defendants then left COBALT. At the

3 time they left, Rahman had been detained for 10 days. (Id. at ¶ 311-313). Approximately

4 6 days after Defendants left, Rahman died. Rahman was found ‘short-chained’ with his

5 hands and feet shackled and a chain connecting the shackles which forced him to sit on

6 the concrete floor. He was naked from the waist down. The temperature at COBALT

7 was near freezing. The cause of death was determined by an Office of Inspector General

8 investigation to be hypothermia. (Id. at ¶ 322-330).

9

In March 2005, Defendants formed Mitchell, Jessen & Associates (“MJA”) to

10 provide “qualified interrogators, detainee security officers for CIA detention sites, and

11 curriculum development and training services” for the Program. (ECF No. 201 at ¶ 336).

12 From 2005 to 2009, MJA was paid between $72 and $81 million dollars.

13

III. Standard of Review

14

The purpose of summary judgment is to avoid unnecessary trials when there is no

15 dispute as to the material facts before the court. Northwest Motorcycle Ass'n v. U.S. Dept.

16 of Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994). A motion for summary judgment will

17 be granted when, viewing the evidence and the inferences arising therefrom in the light

18 most favorable to the nonmoving party, there are no genuine issues of material fact in

19 dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

20 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). While the moving

21 party does not have to disprove matters on which the opponent will bear the burden of

22 proof at trial, they nonetheless bear the burden of producing evidence that negates an

23 essential element of the opposing party’s claim and the ultimate burden of persuading the

24 court that no genuine issue of material fact exists. Nissan Fire & Marine Ins. Co. v. Fritz

25 Companies, 210 F.3d 1099, 1102 (9th Cir. 2000). When the nonmoving party has the

26 burden of proof at trial, the moving party need only point out that there is an absence of

27 evidence to support the nonmoving party’s case. Devereaux v. Abbey, 263 F.3d 1070,

28 ORDER - 15

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1 1076 (9th Cir. 2001).

2

Once the moving party has carried its burden, the opponent must do more than

3 simply show there is some metaphysical doubt as to the material facts. Matsushita Elec.

4 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the opposing party

5 must come forward with specific facts showing that there is a genuine issue for trial. Id.

6 Although a summary judgment motion is to be granted with caution, it is not a disfavored

7 remedy: “Summary judgment procedure is properly regarded not as a disfavored

8 procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which

9 are designed to secure the just, speedy and inexpensive determination of every action.”

10 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)(citations and quotations omitted).

11

IV. Discussion

12

Defendants raise four primary arguments in support of their Motion for Summary

13 Judgment: 1) the court lacks jurisdiction due to the Political Question Doctrine; 2)

14 Defendants are entitled to derivative sovereign immunity; 3) the Alien Tort Statute does

15 not confer jurisdiction over Plaintiffs' claims; and 4) Defendants are not directly liable

16 for violating law of nations, nor liable for aiding and abetting or conspiracy. (ECF No.

17 169). Plaintiffs argue in their Motion for Partial Summary Judgment the undisputed facts

18 establish as a matter of law Defendants are liable under the Alien Tort Statute for aiding

19 and abetting the torture and other cruel, inhuman, and degrading treatment suffered by

20 Plaintiffs (ECF No. 178). Defendants have additionally filed a Motion seeking to exclude

21 "any evidence or argument or reference" to the Senate Select Committee on Intelligence

22 Study of the Central Intelligence Agency's Detention and Interrogation Program

23 (hereafter the "SSCI Report"). (ECF No. 198, p. 2).

24

1. Defendants’ Motion for Summary Judgment - The court will first address

25 the arguments raised in Defendants' Motion for Summary Judgment, many of which were

26 previously raised via Motion to Dismiss. (See Order of April 28, 2016 Denying Motion

27 to Dismiss, ECF No. 40).

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1

A. Political Question Doctrine

2

Defendants’ argument concerning the Political Question Doctrine adds little to the

3 argument previously made and rejected by this court. Defendants' argument relies on

4 several factual and legal contentions which are not conclusively established by the

5 summary judgment record: 1) the CIA exercised complete operational control over

6 Defendants at all relevant times; 2) the EITs were not intended to cause severe physical

7 pain and mental pain or suffering; 3) Defendants acted in good faith and/or the law was

8 unsettled; and 4) "there is no applicable international norm prohibiting" non-consensual

9 human experimentation. (ECF No. 169, p. 10).

10

Executive branch decisions are not immune from judicial review. See for example

11 N.L.R.B. v. Noel Canning, 134 S.Ct. 2550 (2014)(holding the President lacked the power

12 to make the recess appointments at issue in the case). “Courts in the United States have

13 the power, and ordinarily the obligation, to decide cases and controversies properly 14 presented to them.” Alperin v. Vatican Bank, 410 F.3d 532, 539 (9th Cir. 2005). The

15 Supreme Court set forth its most detailed discussion of the political question doctrine in

16 Baker v. Carr, 369 U.S. 186, 217 (1962), wherein the Court articulated six

17 considerations: 1) is there a textually demonstrable constitutional commitment of the

18 issue to a coordinate political department; 2) a lack of judicially discoverable and

19 manageable standards for resolving the case; 3) the impossibility of deciding the case

20 without an initial policy determination of the kind clearly for nonjudicial discretion; 4)

21 the impossibility of the court undertaking independent resolution without expressing lack

22 of respect for coordinate branches of government; 5) an unusual need for unquestioning

23 adherence to a political decision already made; or 6) potentiality of embarrassment from

24 multifarious pronouncements by various departments on one question.

25

These six factors have been described as “formulations” and “six independent

26 tests,” yet there is often overlap. Alperin, 410 F.3d at 544. In the arena of foreign affairs,

27 the Supreme Court has “cautioned against sweeping statements that imply all questions

28 ORDER - 17

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1 involving foreign relations are political ones.” Id. at 544-45 citing Baker v. Carr. The

2 Supreme Court has stated, “it is error to suppose that every case or controversy which

3 touches foreign relations lies beyond judicial cognizance.” Baker, 369 U.S. at 211. The

4 Ninth Circuit has stated: “The Supreme Court has made clear that the federal courts are

5 capable of reviewing military decisions, particularly when those decisions cause injury 6 to civilians.” Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir. 1992).

7

Defendants urge the court to follow a two-part test utilized by the Fourth Circuit

8 Court of Appeals in Taylor v. Kellogg Brown & Root, 658 F.3d 402 (4th Cir. 2011). This

9 court is obviously not required to follow Fourth Circuit precedent. However, the Fourth

10 Circuit’s Al-Shimari case was extensively discussed during a hearing on Defendants’

11 Motion to Dismiss. The Al-Shimari case has three times been dismissed by the district

12 court, and three times reversed by the Fourth Circuit. In early briefing in this case (ECF

13 No. 29), Defendants relied heavily on the District Court opinion from the Eastern District

14 of Virginia, Al Shimari v. CACI Premier Technology, 119 F.Supp.3d 434 (E.D.Va. 2015),

15 where the court dismissed the action based on the political question doctrine. However,

16 the Fourth Circuit reversed that dismissal. See Al Shimari v. CACI Premier Technology, 17 840 F.3d 147 (4th Cir. 2016). The Al-Shimari case involves four Iraqi nationals who

18 brought suit concerning their detention and treatment at Abu Ghraib prison in 2003 and

19 2004. The defendant, CACI, “provided contract interrogation services for the military.”

20 Id. at 151. The Fourth Circuit stated: “We hold that conduct by CACI employees that

21 was unlawful when committed is justiciable, irrespective of whether that conduct

22 occurred under the actual control of the military.” Id. The court further found actions

23 would be shielded from judicial review under the political question doctrine “if they were

24 not unlawful when committed and occurred under the actual control of the military.” Id.

25

Defendants’ argument asks the court to determine inter alia that they acted only

26 under the control of the CIA and to determine Defendants’ intent. It further asks the

27 court to determine if Defendants’ actions were lawful. These are ultimate questions, and

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1 “when the jurisdictional facts and the facts central to a tort claim are inextricably

2 intertwined the district court ordinarily should withhold a determination regarding subject

3 matter jurisdiction and proceed to the merits of the case.” Id. at 154.

4

The court finds it does not lack jurisdiction under the political question doctrine.

5 Other courts have adjudicated cases touching on the same, or similar, subject matter. The

6 Ninth Circuit has already adjudicated a case involving the several year detention of an

7 American citizen, allegedly “held incommunicado in military detention, subjected to

8 coercive interrogation techniques and detained under harsh conditions.” The Defendant

9 was a Deputy Assistant Attorney General with the Department of Justice. See Padilla v. 10 Yoo, 678 F.3d 748 (9th Cir. 2012). The Supreme Court has found it had jurisdiction to

11 “consider challenges to the legality of detention of foreign nationals captured abroad in

12 connection with hostilities and incarcerated at the Guantanamo Bay Naval Base.” See

13 Rasul v. Bush, 542 U.S. 466 (2004). Much closer in time to the events of September 11,

14 2001, the courts of this country have adjudicated cases involving Executive and

15 Legislative branch actions taken in response to those attacks. See for example Hamdi v.

16 Rumsfeld, 542 U.S. 507, 509 (2004)(“At this difficult time in our Nation’s history, we are

17 called upon to consider the legality of the Government’s detention of a United States

18 citizen on United States soil as an ‘enemy combatant’ ... We hold that although Congress

19 authorized the detention of combatants in the narrow circumstances alleged here, due

20 process demands that a citizen held in the United States as an enemy combatant be given

21 a meaningful opportunity to contest the factual basis for that detention before a neutral

22 decisionmaker.”). The Ninth Circuit has stated a “claim of military necessity will not,

23 without more, shield governmental operations from judicial review.” Koohi v. United 24 States, 976 F.2d 1328, 1331 (9th Cir. 1992). The court further stated, “this is true in time

25 of war as well as in time of peace, and with respect to claims by enemy civilians as well

26 as by Americans.” Id. at 1332. These cases demonstrate the court is not required to

27 decline jurisdiction based on political question doctrine.

28 ORDER - 19

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1

Defendants’ Motion for Summary Judgment based on the political question

2 doctrine is DENIED.

3

B. Derivative Sovereign Immunity

4

Defendants claim as private contractors performing work on the Government’s

5 behalf they are immune from suit under the doctrine of derivative sovereign immunity.

6 Defendants seek immunity pursuant to two Supreme Court cases: 1) Yearsley v. W.A.

7 Ross Const. Co., 309 U.S. 18 (1940); and 2) Filarsky v. Delia, 566 U.S. 377 (2012).

8 Under Yearsley immunity Defendants argue they acted pursuant to validly conferred

9 authority and within the scope of their contracts, and are therefore entitled to immunity.

10 Plaintiffs argue the Government may not immunize illegal acts by delegating them to

11 private parties. Plaintiffs contend the Executive could not lawfully authorize torture and

12 abuse, and therefore immunity does not shield the Defendants.

13

Citing Filarsky, Defendants argue they should not be “left holding the bag–facing

14 full liability for actions taken in conjunction with government employees who enjoy

15 immunity for the same activity.” (ECF No. 169, p. 19). However, as Plaintiffs pointed

16 out at prior arguments, Defendants can hardly be considered to be left ‘holding the bag’.

17 They operated under a profit incentive different than that of Government employees. The

18 Defendants and the company they formed were paid $80 million dollars. There is an

19 indemnity provision in the contracts between the Government and the CIA under which

20 the CIA has paid the considerable defense litigation expenses for this action.

21

Defendants argue Filarsky immunity is available if the contractor’s claim for

22 immunity is: 1) historically grounded in the common law; and 2) did not violate clearly

23 established rights. (ECF No. 169, p. 19). Plaintiffs argue Defendants are not entitled to

24 derivative immunity under Filarsky because psychologists were not traditionally entitled

25 to immunity at common law and Defendants violated clearly established rights.

26 Defendants’ argument fails under both prongs. Defendants argue psychiatrists and

27 psychologists are given immunity when they render an opinion on a criminal defendant’s

28 ORDER - 20

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1 mental competency in a legal proceeding. Defendants’ actions herein are not analogous

2 to a psychologist assisting court proceedings by evaluating a criminal defendant and

3 writing a report or testifying. Additionally, Plaintiffs rely on Jensen v. Lane County, 222 4 F.3d 570 (9th Cir. 2000) for the proposition that medical doctors performing

5 psychological assessments during commitment proceedings are not entitled to immunity.

6 In Jensen the court referenced a lack of a “firmly rooted tradition” of such immunity. Id.

7 at 577. The court also addressed privatization and market force arguments in

8 acknowledging distinctions between private contractors and government employees. The

9 court observed “the potential for insurance, indemnification agreements, and higher pay

10 all may operate to encourage qualified candidates” to undertake such obligations even

11 without immunity. Id. Defendants have not established their claim for immunity is

12 historically grounded in the common law.

13

Secondly, Defendants argue it was not clearly established that subjecting an

14 individual to torture or other cruel, inhuman, and degrading conditions violated clearly 15 established rights, citing to Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012). However, the

16 illegality of torture is long-established. See for example Filartiga v. Pena-Irala, 630 F.2d

17 876, 884 (2nd Cir. 1980)("We conclude that official torture is now prohibited by the law

18 of nations. The prohibition is clear and unambiguous, and admits of no distinction

19 between treatment of aliens and citizens."). The case Defendants rely upon states,“the

20 unconstitutionality of torturing a United States citizen was beyond debate by 2001.” 21 Padilla v. Yoo, 678 F.3d 748, 763 (9th Cir. 2012). The inquiry in this case is whether the

22 enhanced interrogation methods outlined in the Program constituted “torture”.

23

In addition to Defendants’ reliance on Yearsley and Filarsky, the analysis must

24 include the Supreme Court’s more recent discussion of derivative sovereign immunity

25 in Campbell-Ewald v. Gomez, 136 S.Ct. 663 (2016). Therein the Supreme Court framed

26 the question as: “Do federal contractors share the Government’s unqualified immunity

27 from liability and litigation?” Id. at 672. The Court answered the question quite

28 ORDER - 21

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1 succinctly and definitively: “We hold they do not.” Id. The majority opinion could be

2 read as somewhat dismissive of the concept: "Campbell asserts 'derivative sovereign

3 immunity, but can offer no authority for the notion that private persons performing

4 Government work acquire the Government's embracive immunity." Id. (internal citations

5 omitted). The Court construed a private contractor’s immunity as "qualified" and it may

6 be overcome "if the defendant knew or should have known that his conduct violated a

7 right clearly established at the time of the episode in suit." Id. at 673.

8

Government contractor immunity “unlike the sovereign’s, is not absolute.”

9 Campbell-Ewald, 136 S.Ct. at 672. An inquiry is required into whether the contractor

10 “exceeded his authority,” or whether the governmental authority “was not validly

11 conferred.” Id. at 673. In either of those circumstances, the contractor could be liable.

12 As the Supreme Court instructed in Campbell-Ewald, “at the pretrial stage of litigation,

13 we construe the record in a light favorable to the party seeking to avoid summary

14 disposition.” Id. Plaintiffs’ contentions are not merely that Defendants Mitchell and

15 Jessen acted specifically at the direction of the Government, but rather that they designed

16 and implemented an experimental torture program. (ECF No. 1, ¶ 20). Plaintiffs argue

17 it was Defendants who proposed the “pseudoscientific theory” of “learned helplessness.”

18 (Id. at ¶ 25). Plaintiffs allege, “Defendants helped convince Justice Department lawyers

19 to authorize specific coercive methods” and argued to the Attorney General for the use

20 of waterboarding as “an absolutely convincing technique.” (Id. at ¶ 43-44). It is also

21 alleged Jessen and Mitchell personally participated in the torture of Abu Zubaydah,

22 including waterboarding. (Id. at ¶ 46-52).

23

Plaintiffs’ allegations are largely supported by the factual record. Defendants make

24 several conclusory assertions that they acted only at the direction of the CIA, that the CIA

25 was “responsible”, or that the CIA had full operational control. However, the allegation

26 Defendants had a role in designing the Program is supported by the evidence. Jose

27 Rodriguez testified that prior to September 2001 the CTC had no expertise in

28 ORDER - 22

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1 interrogation, he asked Mitchell to “put together an interrogation program”, and Mitchell

2 was the “architect” of the Program. (ECF No. 195, Ex. A, Rodriquez Depo. p. 46-47, 52-

3 53, 55). Rodriguez further testified he asked Mitchell to “take charge of creating and

4 implementing” the Program, and Defendants’ proposal became the CIA’s Program. (Id.

5 at p. 58 & 63). John Rizzo testified Defendants were the “architects” of the Program and

6 Defendants trained other CIA interrogators. (ECF No. 195, Ex. D, Rizzo Depo. p. 67 &

7 69). The CIA Inspector General Report of May 7, 2004 stated, “the two psychologists

8 [Defendants] developed a list of new and more aggressive EITs that they recommended

9 for use in interrogations.” (ECF No. 176, Ex. 25, p. 13, ¶ 32).

10

The factual evidence supports Plaintiffs’ assertions that Defendants recommended

11 the EITs and advocated for waterboarding as a convincing measure. A CIA cable,

12 apparently from July 2002, with subject “Comments on Proposed Enhanced Interrogation

13 Process,” has a section entitled, “IC SERE Psychologists Feedback.” (ECF No. 176, Ex.

14 40). That section reads in part: “The plan hinges on the use of an absolutely convincing

15 technique. The waterboard meets this need. Without the waterboard, the remaining

16 pressures would constitute a 50 percent solution...” (Id.). John Rizzo testified Mitchell

17 and Jessen were the only SERE psychologists providing advice to the CIA. (ECF No.

18 195, Ex. D, Rizzo Depo. p. 177).

19

The evidence is undisputed Defendants administered EITs to Abu Zubaydah,

20 including waterboarding. Mitchell’s own book describes he and Jessen utilizing the

21 waterboarding technique on AZ. A CIA cable entitled, “Increased Pressure In The Next

22 Phase of The Abu Zubaydah Interrogations” from July 2002 states Defendants will be the

23 interrogators during the “increased pressure phase”. (ECF No. 175, Ex. I). It states AZ

24 will be subjected to a series of “fear and despair rounds” for approximately 30 days, and

25 “the effectively orchestrated treatment of Abu Zubaydah will convey the feeling of

26 helplessness.” (Id. at p. 6-7).

27

Defendant Jessen testified about his interactions with Rahman, including that he

28 ORDER - 23

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1 utilized the facial slap on Rahman. Jessen’s testimony would support a reasonable

2 inference that he was not specifically authorized to use EITs on Rahman. When asked

3 how he knew the facial slap was authorized, he testified: “I was authorized to use these

4 techniques. I was asked by the CIA to assess him for their use. The only reasonable way

5 to determine that would be to pick the least intrusive one, see how he responded ...”.

6 (ECF No. 195, Ex. F, Jessen Depo. p. 214-215). The finder of fact could find such

7 testimony contradicts the defense assertions the CIA exercised absolute control over who

8 would be subjected to EITs and which EITs would be used.

9

The CIA Inspector General Report of April 27, 2005 concerning the Death of

10 Rahman indicates Jessen played a significant role in his interrogation. (ECF No. 175, Ex.

11 S). The Report states Rahman “underwent at least six interrogation sessions” and the

12 interrogation team included Jessen. (Id. at ¶ 3). A lead CIA Staff Officer at COBALT

13 told investigators “Rahman was the responsibility of Jessen.” (Id. at ¶ 53). Jessen drafted

14 cables documenting the interrogation sessions with Rahman. (Id. at ¶ 54). Mitchell came

15 to COBALT and “participated in one of Jessen’s sessions with Rahman”, and then

16 Defendants left COBALT six days prior to Rahman’s death. (Id. at ¶ 57). The Report

17 states Jessen “prepared the interrogation plan for Rahman” before departing COBALT.

18 (Id. at ¶ 70). A CIA Staff Officer told investigators Jessen’s recommendations included

19 continuation of “environmental deprivations.” (Id. at ¶ 123). The Report concludes a CIA

20 Staff Officer’s decision to have Rahman short-chained to a concrete floor, while wearing

21 only a sweatshirt in near freezing temperatures, “directly led to Rahman’s death by

22 hypothermia.” (Id. at ¶ 173). The Report found the CIA Staff Officer exhibited “reckless

23 indifference” to Rahman’s life. (Id. at ¶ 10). Apparently criminal charges were

24 investigated but never filed.

25

As Defendants are requesting summary judgment on this issue, the facts are viewed

26 in a light favorable to the non-movant Plaintiffs. The finder of fact could conclude

27 Defendants Mitchell and Jessen had a significant role in the design of the Program. A

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1 jury could find they were not acting merely and solely as directed by the Government.

2 See Cabalce v. Thomas E. Blanchard & Associates, 797 F.3d 720, 732 (9th Cir.

3 2015)("We have held that derivative sovereign immunity ... is limited to cases in which

4 a contractor 'had no discretion in the design process and completely followed government

5 specifications.'"). Additionally, Defendants were involved in the actual interrogations of

6 certain individuals, including Rahman, which occurred in foreign, secret, locations. The

7 finder of fact could conclude that although the CIA may have maintained ultimate control

8 of the Program, Defendants, being on site, exercised significant control during individual

9 interrogations. For example, excerpts from Mitchell’s book describe that he decided to

10 deviate from the legal guidance on the length of pours during waterboarding. He states,

11 “legal guidance said we could pour water between 20 to 40 seconds and then lower the

12 cloth and pour water another 20 to 40 seconds, and so on, for 20 minutes.” (ECF No. 195,

13 Ex. C p. 83). He states, “it quickly became apparent that 20 seconds was too long for the

14 shortest pour,” and he “decided, on the spot, to shorten the pours.” (Id. at p. 84). This is

15 further evidence Defendants exercised discretion in applying the EITs.

16

The factual record would support a finding Defendants had a role in the design of

17 the Program, trained interrogators for the Program, and exercised some discretion in the

18 application of the Program. Defendants have not established they merely acted at the

19 direction of the Government, within the scope of their authority, and that such authority

20 was legally and validly conferred.

21

Defendants’ Motion for Summary Judgment on the basis of derivative sovereign

22 immunity is DENIED.

23

C. Alien Tort Statute

24

Defendants renew the argument previously raised via Motion to Dismiss that the

25 ATS does not apply extraterritorially and the court lacks jurisdiction. Defendants now

26 rely on more recently decided Supreme Court precedent, RJR Nabisco v. European

27 Cmty., 136 S.Ct. 2090, 2101 (2016). Defendants contend under the Supreme Court’s

28 ORDER - 25

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1 “focus test” if the conduct relevant to the statute’s focus occurred in a foreign country,

2 then the case involves an impermissible extraterritorial application regardless of any other

3 conduct that occurred in U.S. territory. (ECF No. 169, p. 21-22).

4

In its prior Order denying Defendants’ Motion to Dismiss, this court found

5 Plaintiffs’ allegations sufficient to meet the ‘touch and concern’ standard of Kiobel v.

6 Royal Dutch Petroleum, 133 S.Ct. 1659 (2013), and overcome the presumption against

7 extraterritorial application of the ATS. Defendants now rely on RJR Nabisco to argue the

8 ‘focus’ test should be applied in the context of the ATS. The Ninth Circuit has 9 previously rejected this argument. Doe I v. Nestle, Inc., 766 F.3d 1013, 1028 (9th Cir.

10 2014)(“Morrision may be informative precedent for discerning the content of the touch

11 and concern standard, but the opinion in Kiobel II did not incorporate Morrison’s focus

12 test.”). Additionally, the Ninth Circuit stated, “since the focus test turns on discerning

13 Congress’s intent when passing a statute, it cannot sensibly be applied to ATS claims,

14 which are common law claims based on international legal norms.” Id. at 1028. The

15 Ninth Circuit in Nestle did not ultimately resolve the argument concerning extraterritorial

16 application of the ATS, but remanded for further proceedings.

17

RJR Nabisco is not an ATS case, but rather at issue was the extraterritorial

18 application of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Thus

19 the case did not speak directly to extraterritorial application of the ATS, but it did discuss

20 Kiobel. The Supreme Court stated: “Morrison and Kiobel reflect a two-step framework

21 for analyzing extraterritoriality issues. At the first step, we ask whether the presumption

22 against extraterritoriality has been rebutted ... If the statute is not extraterritorial, then at

23 the second step we determine whether the case involves a domestic application of the

24 statute, and we do this by looking at the statute’s focus.” 136 S.Ct. at 2101. In Kiobel the

25 Court found “the presumption against extraterritoriality applies to claims under the ATS,”

26 but it did not proceed to a focus inquiry. 133 S.Ct. at 1669. Instead, the Kiobel court

27 made the statement that when claims “touch and concern” the territory of the United

28 ORDER - 26

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9419 Page 27 of 43

1 States “with sufficient force” they may displace the presumption against extraterritorial

2 application. Id. Justice Kennedy, concurring, observed the majority opinion “is careful

3 to leave open a number of significant questions regarding the reach and interpretation of

4 the Alien Tort Statute.” Id. Justices Alito and Thomas, concurring, also observed the

5 touch and concern “formulation obviously leaves much unanswered.” Id. The four other

6 concurring Justices in Kiobel (Breyer, Ginsburg, Sotomayor, and Kagan), would not

7 invoke the presumption against extaterritoriality and instead would find ATS jurisdiction

8 where: “(1) the alleged tort occurs on American soil, (2) the defendant is an American

9 national, or (3) the defendant’s conduct substantially and adversely affects an important

10 American national interest.” Id. at 1671.

11

This court finds RJR Nabisco has not displaced Kiobel when the issue is

12 extraterritorial application of the ATS. Therefore, Doe I v. Nestle, Inc., 766 F.3d 1013, 13 1028 (9th Cir. 2014) remains controlling authority, including its determination that Kiobel

14 II did not incorporate Morrison’s focus test. The court is aware on remand the district

15 court in Nestle dismissed the Second Amended Complaint and found: “Nestle’s

16 conclusion that the Morrison focus test did not apply to ATS claims is in irreconcilable

17 conflict with subsequent Supreme Court and Ninth Circuit cases.” (C.D. Cal., Case # 05-

18 CV-5133, ECF No. 249, Order of March 2, 2017). This court disagrees with that

19 conclusion, and notes the Nestle case is again pending on appeal.

20

The court is also aware of the Fifth Circuit’s recent decision in Adhikari v. Kellogg

21 Brown & Root, 845 F.3d 184 (5th Cir. 2017), wherein a 2-1 decision the court applied the

22 focus inquiry to an ATS claim and affirmed dismissal of plaintiffs’ claims as an

23 impermissible extraterritorial application of the ATS. Therein, the Fifth Circuit

24 acknowledged the Ninth Circuit had taken a different route: “The Ninth Circuit has

25 explicitly held that Kiobel did not incorporate Morrison’s focus test.” Id. at 194. The

26 Fifth Circuit also acknowledged other Circuits had “offered differing interpretations of

27 Kiobel’s ‘touch and concern’ language, including to what extent it adopts Morrison’s

28 ORDER - 27

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1 ‘focus’ inquiry.” Id. As stated by the dissent in Adhikari, the majority’s application of

2 the focus inquiry “would eliminate the extraterritorial reach of the statute completely.”

3 Id. at 208. This court does not read the Supreme Court’s decision in Kiobel as entirely

4 eliminating the extraterritorial reach of the ATS. To apply the touch and concern test or

5 focus test in a manner to deprive the ATS of all extraterritorial application would be

6 nonlogical. As Judge Posner stated of the ATS, writing for the Seventh Circuit prior to

7 Kiobel: “Courts have been applying the statute extraterritorially (and not just to violations

8 at sea) since the beginning; no court to our knowledge has ever held that it doesn’t apply

9 extraterritorially ... Deny extraterritorial application, and the statute would be

10 superfluous, given the ample tort and criminal remedies ... in this country.” Flomo v. 11 Firestone Nat. Rubber Co., 643 F.3d 1013 (7th Cir. 2011). This court will apply the

12 touch and concern standard, while acknowledging it is a somewhat vague standard. See 13 Mugica v. AirScan Inc., 771 F.3d 580, 594 (9th Cir. 2014)(“Admittedly, Kiobel (quite

14 purposely) did not enumerate the specific kinds of connections to the United States that

15 could establish that ATS claims ‘touch and concern’ this country.”).

16

Plaintiffs have alleged their claims “touch and concern” the United States in

17 several ways:

18

- Defendants are U.S. citizens;

19

- Defendants are domiciled in the U.S.;

20

- Defendants devised the torture plan in the U.S.;

21

- Defendants supervised the plan’s implementation from the U.S. and pursuant to

22 contracts they executed with the CIA in the U.S.; and

23

- Plaintiffs were subjected to the interrogation methods while in the custody and

24 control of the CIA in detention facilities operated by the U.S. government.

25 (ECF No. 1, ¶ 18).

26

In considering the Motion to Dismiss, the court found those allegations sufficient

27 to overcome the presumption against extraterritorial application of the ATS. However,

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1 now that discovery has closed, Plaintiffs must support those allegations with the factual

2 record. It is undisputed that Defendants Mitchell and Jessen are United States citizens

3 and that they worked with the CIA and entered into contracts with the United States

4 Government. It is undisputed that Defendants ran Mitchell Jessen & Associates (“MJA”),

5 a company located in Spokane, Washington, and MJA provided “qualified interrogators,

6 detainee security officers for CIA detention sites, and curriculum development and

7 training services” for the Program. During the development of the Program, Mitchell

8 attended a meeting at CIA HQS in the United States. (ECF No. 201, ¶ 98). Mitchell in

9 fact had several meetings at HQS with Rodriguez, and on July 8, 2002, Mitchell and

10 Jessen met with Rodriguez and Rizzo at HQS. (Id. at ¶ 122 & 123). Jessen testified that

11 he and Mitchell put together their list of proposed EITs while at Langley. (ECF No. 195,

12 Ex. F, Jessen Depo. p. 129).

13

The Ninth Circuit has recognized the Supreme Court in Kiobel v. Royal Dutch

14 Petroleum, 133 S.Ct. 1659 (2013), did not delineate the “touch and concern” test with a 15 great deal of specificity. In Mugica v. AirScan Inc., 771 F.3d 580, 594 (9th Cir. 2014),

16 the Ninth Circuit recognized a defendant’s U.S. citizenship is an appropriate factor to

17 consider, but that a plaintiff cannot bring an action based solely on extraterritorial

18 conduct merely because the defendant is a U.S. national. Mugica is factually

19 distinguishable from the case at bar. In Mugica, the plaintiffs were Colombian citizens

20 who brought suit in California arising out of the bombing of a Colombian village by

21 members of the Colombian Air Force. Id. at 584. Plaintiffs sued two U.S.-headquartered

22 corporations for their alleged complicity in the bombing. The Mugica majority decision

23 dismissed the claim on the basis the ‘touch and concern’ test was not met by the mere

24 allegation that the defendants were United States corporations.

25

This case bears more similarity to Al Shimari v. CACI Premier Technology, 758

26 F.3d 516 (4th Cir. 2014). In Al Shimari, four foreign citizens brought claims against a

27 U.S. corporation military contractor pertaining to alleged torture during detention at Abu

28 ORDER - 29

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1 Ghraib. The Fourth Circuit found important the claims involved the performance of a

2 contract executed by a U.S. corporation with the U.S. Government. Also, the court

3 considered the defendant was headquartered in Virginia, the alleged torture occurred at

4 a U.S. military facility, defendant hired employees in the U.S. to perform the contract,

5 and defendant collected payments by mailing invoices to a government office in

6 Colorado. Id. at 528-29.

7

In the present case, the two individual Defendants are U.S. citizens. The

8 Defendants ran a company, located in Spokane, Washington, to assist with the enhanced

9 interrogation program at CIA detention sites. Defendants held meetings with U.S

10 Government officials at CIA HQS in the United States during the development of the

11 Program. Defendants developed their list of EITs while in the United States. Defendants

12 each executed multiple contracts with the CIA. As Mitchell, Jessen, & Associates was

13 located in Spokane, Washington, it is a reasonable inference that work related to the

14 interrogation program was performed from the United States.

15

The court finds Defendants’ relevant conduct touches and concerns the United

16 States with sufficient force to overcome the presumption against extraterritorial

17 application of the ATS. Alternatively, although the court does not find the focus test

18 applies, it would find the focus test to be met. Neither the Supreme Court or Ninth

19 Circuit has applied the the “focus” test to an ATS claim, so application is uncertain. The

20 Fifth Circuit stated, “the focus is conduct that violates international law, which the ATS

21 seeks to regulate by giving federal courts jurisdiction over such claims.”Adhikari v. 22 Kellogg Brown & Root, 845 F.3d 184 (5th Cir. 2017). In Mastafa v. Chevron Corp., 770 23 F.3d 170 (2nd Cir. 2014), the Second Circuit stated, “the focus of the ATS is on conduct

24 and the location of that conduct.” Id. at 185. The court further stated the relevant conduct

25 for the inquiry is “conduct of the defendant which is alleged by plaintiff to be either a

26 direct violation of the law of nations,” or “conduct that constitutes aiding and abetting

27 another’s violation of the law of nations.” Id. at 185.

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1

Plaintiffs have asserted a claim against Defendants for aiding and abetting.

2 Plaintiffs have alleged, and provided evidence of, conduct of the Defendants which

3 occurred in the United States. Defendants created their list of EITs in Langley, Virginia.

4 Defendants had numerous meetings at CIA HQS in the United States concerning the

5 creation of the Program. Although the physical acts against Plaintiffs alleged to be

6 “torture” occurred in foreign, unknown ‘black site’ locations, relevant conduct to the

7 claim of aiding and abetting occurred in the United States. Defendants’ Motion for

8 Summary Judgment as to this issue is DENIED.

9

D. Defendants’ Liability on ATS Claim

10

Defendants first three arguments raise either the issue of jurisdiction or immunity.

11 Defendants’ fourth argument goes to the merits -- that they are not directly liable for

12 violating the law of nations, nor liable for aiding and abetting or conspiracy. As the

13 argument intersects with the issues in Plaintiffs’ Motion for Partial Summary Judgment,

14 it is addressed infra.

15

2. Plaintiffs’ Motion for Partial Summary Judgment

16

Plaintiffs seek summary judgment on their claim Defendants aided and abetted

17 torture and other cruel, inhuman, and degrading treatment. (ECF No. 178). Plaintiffs

18 contend Defendants’ actions, as a matter of law, satisfy the standard for aiding and

19 abetting liability under the Alien Tort Statute (“ATS”). Plaintiffs state the “law is clear

20 with respect to both the act and intent elements that form the basis for aiding and abetting

21 liability.” (ECF No. 178, p. 1). However, the law is not clear, as evidenced by Doe I v. 22 Nestle, USA, 766 F.3d 1013 (9th Cir. 2014), discussed infra. Defendants’ Response

23 (ECF No. 190) attacks Plaintiffs’ recitation of the factual record. Defendants argue their

24 role in the CIA Program did not have a “substantial effect” on the perpetration of any

25 crime against the Plaintiffs. Defendants also argue they lacked the requisite mental state

26 for aiding and abetting liability. Defendants Motion (ECF No. 169, p. 24-34) argues they

27 are not “directly liable”, did not have the necessary mens rea for aiding and abetting, and

28 ORDER - 31

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9424 Page 32 of 43

1 are not liable for conspiring with the United States government.

2

The ATS provides, in full: “The district courts shall have original jurisdiction of

3 any civil action by an alien for a tort only, committed in violation of the law of nations

4 or a treaty of the United States.” 28 U.S.C. § 1350. The Supreme Court has stated

5 although the ATS is primarily jurisdictional, “we think that at the time of enactment the

6 jurisdiction enabled federal courts to hear claims in a very limited category defined by

7 the law of nations and recognized at common law.” Sosa v. Alvarez-Machain, 542 U.S.

8 692, 712 (2004). There are three elements to an ATS claim. Plaintiffs must: 1) be aliens;

9 2) claiming damages for a tort; and 3) resulting from a violation of the law of nations or

10 of a treaty of the United States. Presbyterian Church of Sudan v. Talisman Energy, Inc., 11 582 F.3d 244 (2nd Cir. 2009). It is recognized torture violates the law of nations. See 12 Filartiga, 630 F.2d at 878 (2nd Cir. 1980)(“we hold that deliberate torture perpetrated

13 under color of official authority violates universally accepted norms of the international

14 law of human rights, regardless of the nationality of the parties.”)

15

Plaintiffs are pursuing a theory of aiding and abetting liability under the ATS based

16 largely on Defendants’ design of the Program. Doe I v. Nestle, USA, 766 F.3d 1013 (9th

17 Cir. 2014) is the primary Ninth Circuit authority on aiding and abetting liability under the

18 ATS. The Plaintiffs in Nestle were former child slaves who were forced to harvest cocoa

19 in the Ivory Coast. They sued Nestle under the ATS “alleging that defendants aided and

20 abetted child slavery by providing assistance to Ivorian farmers.” Id. at 1016. The district

21 court dismissed the complaint for failure to state a claim, but the Ninth Circuit reversed.

22

The three plaintiffs in Nestle alleged they were forced to work up to 14 hours per

23 day, given only scraps of food to eat, and whipped and beaten by overseers. Id. at 1017.

24 Plaintiffs alleged Nestle was aware of the use of child slavery on the cocoa farms.

25 Although Nestle did not own the farms, plaintiffs alleged Nestle provided financial and

26 technical assistance and “continue to supply money, equipment, and training to Ivorian

27 farmers, knowing that these provisions will facilitate the use of forced child labor.” Id.

28 ORDER - 32

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9425 Page 33 of 43

1 at 1017.

2

The Ninth Circuit stated: “Customary international law–not domestic law–provides

3 the legal standard for aiding and abetting ATS claims.” Id. at 1023. The court addressed

4 the required mens rea and actus reus requirements for aiding and abetting liability under

5 the ATS. As to mens rea, the court discussed whether “knowledge” or “purpose” is

6 required. Under the knowledge standard, one must act with “knowledge that the aider

7 and abetter’s acts would facilitate the commission of the underlying offense.” Id. The

8 court acknowledged that two other Circuits, the Second and the Fourth, had found for

9 aiding and abetting liability under the ATS a defendant “must act with the purpose of

10 facilitating the criminal act.” Id. The Ninth Circuit concluded: “we need not decide

11 whether a purpose or knowledge standard applies to aiding and abetting ATS claims.” Id.

12 at 1024. The court found plaintiffs’ allegations sufficed under either standard.

13

The Ninth Circuit in Nestle found the allegations supported an inference that

14 “defendants placed increased revenues before basic human welfare.” Id. The allegations

15 were that defendants, driven by the goal to reduce costs, supported child slavery, and the

16 slavery benefitted the defendants. The court found these “allegations support the

17 inference that defendants acted with the purpose to facilitate child slavery.” Id. The court

18 found important the allegation defendants “obtained a direct benefit from the commission

19 of the violation of international law.” Id.

20

On the issue of actus reus, the Ninth Circuit stated: “The actus reus of aiding and

21 abetting is providing assistance or other forms of support to the commission of a crime.”

22 Id. at 1026. The parties agreed the assistance must be “substantial,” but disputed whether

23 it must be “specifically directed towards the commission of the crime.” Id. The Ninth

24 Circuit did not resolve the issue: “we decline to adopt an actus reus standard for aiding

25 and abetting liability under the ATS.” Id. at 1026. However, after discussing some

26 international court opinions, the Ninth Circuit stated: “What appears to have emerged is

27 that there is less focus on specific direction and more of an emphasis on the existence of

28 ORDER - 33

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9426 Page 34 of 43

1 a causal link between the defendants and the commission of the crime.” Id.

2

Plaintiffs’ Motion argues Mitchell and Jessen played a crucial role in developing,

3 refining, and supporting the Program and thus substantially assisted the detainee abuse.

4 Plaintiffs argue Defendants were paid millions of dollars to do so, thus evidencing their

5 purpose. Plaintiffs contend the actus reus component is met because Defendants

6 provided the means for the systematic abuse of detainees, and they directly participated

7 in the interrogation of Rahman. Plaintiffs argue Defendants cannot “claim ignorance of

8 the severe pain and suffering that prisoners could endure in the program.” (ECF No. 178,

9 p. 20). Plaintiffs point out that Defendants in applying EITs to AZ had observed

10 firsthand the ill effects to AZ. (Id.)(“their methods caused Abu Zubaydah to vomit, cry,

11 beg, plead, shake, tremble, whimper, moan, desperately pray, and become so hysterical

12 and distressed he could not communicate.”). Much of Plaintiffs’ brief is also devoted to

13 the argument that Plaintiffs were in fact submitted to torture and other cruel, inhuman,

14 and degrading treatment.

15

Defendants’ Response (ECF No. 190) makes several unconvincing arguments.

16 First, Defendants argue there were other “parallel” interrogation Programs, which is

17 contradicted by John Rizzo’s testimony that there was only one legally authorized

18 Program. (ECF No. 205, Ex. A p. 101-102). Second, the argument Defendants designed

19 the Program only for use on HVDs is unconvincing. Jessen testified the terms “evolved

20 over time” and the term HVD “didn’t exist when we started.” (ECF No. 195, Ex. F p.

21 200-201). He also testified he worked with MVDs at COBALT. (Id.). As seen in the

22 briefing on Defendants’ second Motion to Dismiss, the designation of an individual could

23 change, and is thus arbitrary. Plaintiff Salim was designated as “low level”, “high level”

24 and “no longer enemy combatant.” (See Order at ECF No. 135, p. 10). Further, the

25 designation is somewhat speculative – what information does the CIA think the

26 individual possesses. Third, Defendants’ Response makes the factually unsupportable

27 argument: “There is no connection between the EITs proposed by Defendants and those

28 ORDER - 34

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9427 Page 35 of 43

1 allegedly applied to Plaintiffs.” (ECF No. 190, p. 2). This is factually incorrect – some

2 techniques are identical and others appear to be variations–such as water dousing.

3

Returning specifically to the required mens rea, the Ninth Circuit has not

4 determined whether it is “knowledge” that one’s acts would facilitate the commission of

5 an offense, or acting with the “purpose” of facilitating the act. The evidence would

6 support a finding Defendants designed the EITs to be used on detainees, and thus they

7 clearly had knowledge they would be so used. Whether they had the purpose of

8 facilitating a criminal act is not as clear because of Defendants’ testimony about their

9 own actions, whether they believed the EITs could be utilized safely, and whether they

10 relied on legal opinions prepared by the Government. Defendants contend they lacked the

11 requisite mens rea because they “believed the EITs were legal and appropriate based on

12 the OLC memos” and received constant assurances from HQS. (ECF No. 190 at 22).

13

As to actus reus, whether the Defendants provided “substantial assistance” is

14 disputed. A jury could find the Defendants provided “substantial assistance.” The jury

15 could find Defendants were asked to, and did design the EITs. A jury could find

16 Defendants then subjected Abu Zubaydah to these EITs as a way of testing them. The

17 OLC then approved these EITs for use on other detainees. Defendants visited COBALT

18 and knew that detainees there, such as Rahman, were being evaluated for potential use

19 of EITs. Defendants interrogated Rahman, and Jessen admits utilizing an EIT on Rahman

20 to evaluate him. As to Plaintiffs Salim and Soud and whether Defendants acts were

21 specifically directed at them, the Ninth Circuit has stated there appears to be “less focus

22 on specific direction and more of an emphasis on the existence of a causal link between

23 the defendants and the commission of the crime.” Nestle, 766 F.3d at 1026.

24

In Nestle, the defendants did not own the cocoa farms on which were being farmed

25 by child slaves, but they were aware of the problem of child slavery in the Ivory Coast.

26 Plaintiffs in Nestle “conceded that defendants did not have the subjective motive to harm

27 children”, but nonetheless the court found the allegations sufficient to satisfy the mens

28 ORDER - 35

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9428 Page 36 of 43

1 rea requirement under either a knowledge or purpose standard. Id. at 1025-26. Similarly,

2 Plaintiffs herein are not required to demonstrate Defendants had a subjective motive to

3 harm Salim and Soud. As for the actus reus, and a causal link between Defendants and

4 Salim and Soud, a jury could find such link established. As stated supra, the jury could

5 find Defendants designed the EITs for use on foreign detainees held by the CIA, they

6 tested the EITs on Abu Zubaydah, and they were aware EITs could be used at COBALT.

7 Jessen and Mitchell were both at COBALT in November 2002, and Jessen evaluated

8 Rahman for use of EITs. A jury could find Defendants were aware individuals other than

9 HVDs were housed at COBALT. It is undisputed EIT Guidelines based on Defendants’

10 techniques “were sent to all CIA locations, including COBALT, and all CIA personnel

11 involved in interrogations or detentions were required to review and acknowledge them.”

12 (D’s St. of Facts, ECF No. 201, ¶ 230). Defendants argue the fact their EITs were

13 communicated to COBALT was not known to them and breaks the causal chain required

14 for actus reus. (ECF No. 190 p. 21). Although Defendants deny knowing the Guidelines

15 were sent to COBALT in January 2003, a jury could find they should have known. Salim

16 and Soud arrived at COBALT in March and April of 2003 and a jury could find a

17 sufficient actus reus for liability and sufficient causal link between the actions of

18 Defendants and the treatment of Salim and Soud.

19

Defendants’ briefing in arguing against “substantial assistance” attempts to

20 minimize their participation, and at times goes to incredible lengths: “Defendants’

21 involvement was limited to suggesting potential EITs for Zubaydah, and then providing

22 a detailed list of techniques that had been used at SERE for fifty years.” (ECF No. 190,

23 p. 9). This statement is factually inaccurate and misleading. It is not credible to argue

24 Defendants were paid $80 million dollars for suggesting some techniques the Air Force

25 SERE program already knew about. It is also undisputed that Defendants did not merely

26 suggest EITs they actually applied EITs to Zubaydah,interrogated Rahman, and

27 participated in the Program for several years.

28 ORDER - 36

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1

The ultimate determination of aiding and abetting liability will also turn on

2 whether the EITs constituted “torture”. Defendants state: “Plaintiffs cannot demonstrate

3 that the general rule against torture applies specifically to Defendants’ proposed EITs

4 precisely because there were no clear international norms concerning these techniques

5 when they were being considered and applied.” (ECF No. 190, p. 27). Defendants rely 6 on Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012), where the court found Deputy Assistant

7 Attorney General John Yoo was entitled to qualified immunity because it was not clearly

8 established in 2001-2003 that the treatment which Padilla alleged amounted to torture.

9 Padilla alleged inter alia he was subjected to prolonged isolation, deprivation of light,

10 extreme variations in temperatures, “sleep adjustment”, threats of physical abuse, death

11 threats, interference with religious observance, and denial of medical care. Padilla

12 alleged he was detained for 44-months and suffered severe mental and physical harm.

13 The court stated: “we cannot say that any reasonable official in 2001-03 would have

14 known that the specific interrogation techniques allegedly employed against Padilla,

15 however appalling, necessarily amounted to torture.” Id. at 768.

16

The court in Padilla also stated: “In 2001-03, there was general agreement that

17 torture meant the intentional infliction of severe pain or suffering, whether physical or

18 mental.” Id. at 764. The court also held “the unconstitutionality of torturing a United

19 States citizen was beyond debate by 2001.” Id. at 763. Although there are similarities

20 between Padilla’s post-9/11 detention and alleged treatment, noticeably absent from

21 Padilla’s allegations are waterboarding, walling, confinement boxes, and extreme sleep

22 deprivation. The Bybee Memo of August 1, 2002 recognized that waterboarding could

23 cause “incipient panic” and the “perception of drowning”. (ECF No. 174, Ex. I p. 4). It

24 further stated, “courts tend to take a totality-of-the-circumstances approach and consider

25 the entire course of conduct to determine whether torture occurred.” (Id. at p. 9). The

26 Memo further concluded: “We find that the use of the waterboard constitutes a threat of

27 imminent death.” (Id. at 15).

28 ORDER - 37

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1

A May 10, 2005 Memo from DOJ/OLC, authored by Steven Bradbury, Principal

2 Deputy Assistant Attorney General, to John Rizzo concerning the Program states:

3 “Torture is abhorrent both to American law and values and to international norms. The

4 universal repudiation of torture is reflected not only in our criminal law but also in

5 international agreements.” (ECF No. 174, Ex. S, p. 1). The Memo found use of

6 waterboard and sleep deprivation raised “substantial questions” concerning whether their

7 use was torture. (Id. at p. 28). It concluded sleep deprivation could result in “substantial

8 physical distress.” (Id. at p. 38). The Memo ultimately concluded, “although extended

9 sleep deprivation and use of the waterboard present more substantial questions in certain

10 respects under the statute and the use of the waterboard raises the most substantial

11 issue–none of these specific techniques, considered individually, would violate the

12 prohibition in sections 2340-2340A.” (Id. at p. 45). Title 18 U.S.C. § 2340 defines

13 “torture” as “an act committed by a person acting under color of law specifically intended

14 to inflict severe physical or mental pain or suffering.”

15

On the voluminous record submitted to the court, including over 600 pages of

16 “statements of fact,” the court finds neither side has demonstrated the absence of material

17 dispute of fact entitling the movant to judgment as a matter of law on the issue of liability

18 for aiding and abetting torture under the ATS. Defendants’ Motion for Summary

19 Judgment and Plaintiffs’ Motion for Partial Summary Judgment are DENIED.

20

3. Defendants’ Motion to Exclude SSCI Report

21

Defendants move to exclude the Senate Select Committee on Intelligence Report

22 on the CIA’s Detention and Interrogation Program (“SSCI Report”) based on the

23 argument it is hearsay. Defendants argue the SSCI Report is unreliable and is a “partisan

24 result” of an investigation and study led by Democratic Senator Dianne Feinstein.

25 However, Defendants acknowledge Federal Rule of Evidence 803(8)(A)(iii) provides an

26 exception to the hearsay rule for “factual findings from a legally authorized government

27 investigation.” (ECF No. 198, p. 5).

28 ORDER - 38

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1

Plaintiffs oppose the Motion and argue the specific facts from the SSCI Report

2 which are at issue in the summary judgment briefing are admissible pursuant to the FRE

3 803(8)(A)(iii). Plaintiffs contend the SSCI Report contains admissible factual findings,

4 and the Report is timely, trustworthy, and unbiased. Plaintiffs also raise the procedural

5 argument that the Motion to Exclude is an improper motion in limine in violation of the

6 court’s prior Order requiring each side to present all trial evidentiary issues in a single

7 consolidated motion in limine. (ECF No. 187).

8

The court does not find convincing Defendants’ assertions that the Senate Select

9 Committee on Intelligence was not qualified to investigate the Program and has produced

10 an untrustworthy, partisan, and unreliable report. Defendants have submitted the

11 Declarations of John Rizzo (ECF No. 174, ¶ 77)(“The SSCI Report is an errant,

12 inaccurate, one-side, unremitting, wholesale assault on the CIA’s EIT Program) and Jose

13 Rodriguez (ECF No. 177, ¶ 122)(“The SSCI Report is an errant, one-sided assault on the

14 CIA’s EIT Program that reaches numerous unsupportable and baffling conclusions.”).

15 These are merely conclusory statements of opinion by Rizzo and Rodriguez, and not

16 proper averments of fact for an affidavit. Additionally, given their participation and

17 involvement with the Program they are not uninterested observers and may not be

18 objective.

19

As the Declaration of Senator Ron Wyden states, the SCCI Report was the product

20 of a “five year review of over six million pages of documents, including interrogation

21 logs, interview transcripts, internal emails, and memoranda”. (ECF No. 206-4, ¶ 5). The

22 discussion of the SSCI Report by the United States Court of Appeals, District of

23 Columbia Circuit, in American Civil Liberties Union v. CIA, 823 F.3d 655 (D.C. Cir.

24 2016) is also informative. The court states, “in 2009, as part of its oversight of the

25 intelligence community, the Senate Committee announced it would conduct a

26 comprehensive review” of the CIA’s detention and interrogation program. Id. at 658.

27 Arrangements were made for Senators and their staff to have access to classified

28 ORDER - 39

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9432 Page 40 of 43

1 information. Id. Then, “in 2014, after completing its review and receiving comments and

2 proposed edits from the Executive Branch,” the SSCI produced an over 6,000 page

3 investigative report and 500 page executive summary. Id. The opinion details the efforts

4 made to allow the SSCI access to the classified materials including “review of CIA

5 records in a secure electronic reading room at a CIA facility” and the “CIA agreed to

6 create a segregated network drive at the CIA facility where Senate personnel could

7 prepare their work product.” Id. at 659. The opinion further states a draft of the full

8 report and executive summary were provided “to an approved list of individuals in the

9 Executive Branch for the limited purpose of eliciting their comments and proposed edits,”

10 in December 2012, over a year before the SSCI Report was finalized. Id. at 660.

11

The Seventh Circuit in Daniel v. Cook County, 833 F.3d 728, 740 (7th Cir. 2016),

12 in construing this hearsay exception stated that such a report is “presumed to be

13 admissible” and the trial court has discretion to exclude it “if circumstances demonstrate

14 a lack of trustworthiness.” Id. at 740. “The burden to show untrustworthiness lies on the

15 party seeking to exclude an evaluative report.” Id. The court noted there is also a

16 presumption “public officials, in crafting such a report acted properly and without bias.”

17 Id. citing Fed.R.Evid. 803(8) advisory committee note (“Justification for the exception

18 is the assumption that a public official will perform his duty properly...”). “The burden

19 of persuasion still lies with the party seeking to exclude the investigative findings.” Id. 20 at 741; see also Keith v. Volpe, 858 F.2d 467, 481 (9th Cir. 1988)(under this Fed.R.Evid.

21 803 hearsay exception, “The presumption is one of trustworthiness, with the burden of

22 establishing untrustworthiness on the opponent of the evidence.”).

23

The parties have briefed a four-factor test for considering the trustworthiness of

24 public reports: 1) timeliness; 2) special skill or experience of investigator; 3) whether

25 hearings were held; and 4) possible bias/motivation problems. Some courts utilize such 26 a test. See for example United States v. The Boeing Company, 825 F.3d 1138 (10th Cir.

27 2016). However, the court is not required to employ the test. See Daniel v. Cook County,

28 ORDER - 40

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1 833 F.3d 728, 741 (7th Cir. 2016)(observing the test comes from the advisory committee

2 notes and “is not the law of this court”). The court will briefly address these factors. The

3 court does not find the SSCI Report untimely. It was commissioned in 2009, shortly after

4 the Program was ended. The investigation and comprehensive review of millions of

5 pages of documents took time, and the SSCI Report was completed in 2014. Concerning

6 special skill or experience, the Senate Select Committee on Intelligence has the duty to

7 oversee and study the intelligence agencies of the United States and report its findings

8 to the Senate. (ECF No. 206-4, Dec. of Senator RonWyden, ¶ 1). Plaintiffs contend no

9 hearings were held because the information was classified.

10

The fact hearings were not held because the SSCI was dealing with classified

11 information does not render the Report untrustworthy, nor does the fact some portions

12 of the Executive Summary are still redacted. In United States v. The Boeing Company, 13 825 F.3d 1138 (10th Cir. 2016), the party seeking to exclude a Federal Aviation

14 Administration report argued it was untrustworthy because it was partially redacted. The

15 Tenth Circuit rejected the argument: “Relators cite no authority suggesting partial

16 redaction of a public record is a sign of untrustworthiness, and we decline to find so

17 here.” Id. at 1146.

18

Lastly, the court does not find Defendants’ allegations of partisanship render the

19 SSCI Report, as a whole, untrustworthy. The Declaration of Senator Wyden states the

20 decision to initiate a study of the CIA’s detention and interrogation program was

21 approved by a 14-1 bipartisan vote. (Id. at ¶ 3). The SSCI then approved the Study by

22 a 9-6 vote, and voted to make the Executive Summary public by an 11-3 vote. (Id. at ¶

23 6). Defendants’ assertion the Report is untrustworthy because 6 Republicans on the SSCI

24 voted against it is not convincing.

25

The court finds Defendants’ have not met their burden of establishing the SSCI

26 Report is untrustworthy. The Motion to Exclude (ECF No. 198) is DENIED. The court

27 will not exclude references to the SSCI Report from the summary judgment record.

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Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9434 Page 42 of 43

1 Defendants may renew their motion for purposes of trial5.

2

Defendants have also argued in the instant briefing that portions of the SSCI

3 Report “lack[] the ‘factual findings’ contemplated by Rule 803, and as such, cannot be

4 admitted under this exception.” (ECF No. 198, p. 5). The parties should bear in mind the

5 Supreme Court’s holding in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162 (1988),

6 that “factually based conclusions or opinions are not on that account excluded from the

7 scope” of the Rule 803 exception. The Supreme Court referred to the “broad approach

8 to admissibility” under the Rule 803(8) exception. Id. at 169. The Court also observed:

9 “the admission of a report containing ‘conclusions’ is subject to the ultimate

10 safeguard–the opponent’s right to present evidence tending to contradict or diminish the

11 weight of those conclusions.” Id. at 168.

12

V. Conclusion

13

Defendants present three arguments in their Motion for Summary Judgment which

14 were previously made via Motion to Dismiss and rejected. When considering the past

15 Motion to Dismiss, the court was considering the allegations of the Complaint. Now the

16 court is considering the evidence in the summary judgment record. As Plaintiffs have

17 presented evidence which generally supports the basic allegations of the Complaint, the

18 arguments concerning political question, derivative sovereign immunity, and

19 extraterritorial application of the ATS largely fail for the reasons previously stated.

20

As to ATS jurisdiction, the legal landscape is evolving, but this court finds the

21 touch and concern test of Kiobel and Doe I v. Nestle, 766 F.3d 1013 (9th Cir. 2014), to be

22 the appropriate and controlling standard. The court does not agree with the formulation

23 of the ‘focus test’ as presented by the Fifth and Second Circuit cases discussed supra, but

24 if required to utilize the focus inquiry, the court would find it met as the evidence of

25 record would support a finding Defendants engaged in the relevant conduct to aid and

26 5The court observes Plaintiffs have raised this issue in a recently filed Motion in Limine
27 (ECF No. 234, p. 23-25), which will be addressed at the Pretrial Conference.
28 ORDER - 42

Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9435 Page 43 of 43

1 abet the Program from the United States.

2

On the merits of the claims, the issue of aiding and abetting liability under the ATS

3 present complicated issues of both fact and law. Neither side has demonstrated judgment

4 as a matter of law is appropriate.

5 IT IS HEREBY ORDERED:

6

1. Defendants’ Motion for Summary Judgment (ECF No. 169) is DENIED.

7

2. Defendants’ Motion to Exclude the SSCI Report (ECF No. 198) is DENIED.

8

3. Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 178) is DENIED.

9

4. This matter remains set for the commencement of what appears to be a lengthy

10 pretrial conference in Spokane, Washington on August 21, 2017, at 10:00 a.m. Jury trial

11 remains set to commence on Tuesday, September 5, 2017.

12

5. All pretrial deadlines remain as previously set (See Order at ECF No. 187), with

13 the exception of the trial brief deadline. At counsel’s request, the deadline for trial briefs

14 is extended to Friday, August 25, 2017, at 4:00 p.m.

15

IT IS SO ORDERED. The Clerk shall enter this Order and furnish copies to

16 counsel.

17

Dated August 7, 2017.

18

s/ Justin L. Quackenbush

JUSTIN L. QUACKENBUSH

19

SENIOR UNITED STATES DISTRICT JUDGE

20

21

22

23

24

25

26

27

28 ORDER - 43

 
 Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 1 of 25
CLOSED,JURY,LC01,PROTO
Eastern District of Washington U.S. District Court (Spokane) CIVIL DOCKET FOR CASE #: 2:15−cv−00286−JLQ

Salim et al v. Mitchell et al Assigned to: Senior Judge Justin L. Quackenbush Case in other court: District of Columbia,
1:16−MC−1799−KBJ Cause: 28:1350 Alien Tort Statute
Plaintiff

Date Filed: 10/13/2015 Date Terminated: 08/17/2017 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Suleiman Abdullah Salim

represented by Anthony P DiCaprio Law Office of Anthony DiCaprio 64 Purchase Street Rye, NY 10580 917−439−5166 Email: ad@humanrightslawyers.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Avram D Frey Gibbons PC One Gateway Center Newark, NJ 07102 973−596−4415 Fax: 973−639−6358 Email: afrey@gibbonslaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel J McGrady Gibbons PC One Gateway Center Newark, NJ 07102 973−596−4500 Fax: 973−639−6465 Email: dmcgrady@gibbonslaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dror Ladin American Civil Liberties Union Foundation 125 Broad St, 17th Floor New York, NY 10004 212−284−7303 Email: dladin@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hina Shamsi American Civil Liberties Union Foundation 125 Broad St, 17th Floor New York, NY 10004 212−284−7321 Email: hshamsi@aclu.org

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 2 of 25
LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffry Keith Finer Finer & Winn PS 421 W Riverside Suite 1081 Spokane, WA 99201 509−279−2709 Fax: 509−955−3740 Email: jeffry@finerwinn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate E Janukowicz Gibbons PC One Gateway Center Newark, NJ 07102 973−596−4500 Fax: 973−639−8325 Email: kjanukowicz@gibbonslaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lawrence S Lustberg Gibbons PC One Gateway Center Newark, NJ 07102 973−596−4500 Fax: 973−639−6285 Email: llustberg@gibbonslaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman Schonbrun DeSimone Seplow Harris & Hoffman LLP 723 Ocean Front Walk Suite 100 Venice, CA 90291 310−396−0731 Email: Hoffpaul@aol.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Watt American Civil Liberties Union Foundation 125 Broad St, 17th Floor New York, NY 10004 212−519−7870 Email: swatt@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Chiang ACLU of Washington 901 5th Avenue Suite 630 Seattle, WA 98164 206−624−2184

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 3 of 25

Email: echiang@aclu−wa.org ATTORNEY TO BE NOTICED

Jameel Jaffer Knight First Amendment Institute at Columbia University 475 Riverside Drive Suite 302 New York, NY 10115 6467458500 Email: jameel.jaffer@knightcolumbia.org TERMINATED: 08/31/2016 PRO HAC VICE

La Rond Baker ACLU of Washington 901 5th Avenue Suite 630 Seattle, WA 98164 206−624−2184 Email: lbaker@aclu−wa.org TERMINATED: 06/16/2016

Plaintiff Mohamed Ahmed Ben Soud

represented by Anthony P DiCaprio (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Avram D Frey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel J McGrady (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Dror Ladin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffry Keith Finer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kate E Janukowicz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 4 of 25

Plaintiff
Obaid Ullah as personal representative of Gul Rahman

Lawrence S Lustberg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Watt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) TERMINATED: 08/31/2016 PRO HAC VICE
La Rond Baker (See above for address) TERMINATED: 06/16/2016
represented by Anthony P DiCaprio (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Avram D Frey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel J McGrady (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Dror Ladin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Hina Shamsi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffry Keith Finer (See above for address)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 5 of 25
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate E Janukowicz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lawrence S Lustberg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul L Hoffman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven Watt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) TERMINATED: 08/31/2016 PRO HAC VICE
La Rond Baker (See above for address) TERMINATED: 06/16/2016

V. Defendant James Elmer Mitchell

represented by Brian S Paszamant Blank Rome LLP One Logan Square 130 North 18th Street Philadelphia, PA 19103 215−569−5791 Email: Paszamant@blankrome.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Henry F Schuelke , III Blank Rome LLP 600 New Hampshire Avenue NW Washington, DC 20037 202−772−5800 Email: HSchuelke@blankrome.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James T Smith

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 6 of 25

Blank Rome LLP One Logan Square 130 North 18th Street Philadelphia, PA 19103 215−569−5643 Fax: 215−832−5643 Email: smith−jt@blankrome.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey N Rosenthal Blank Rome LLP One Logan Square 130 N 18th Street Philadelphia, PA 19103 215−569−5553 Fax: 215−832−5553 Email: rosenthal−j@blankrome.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher W Tompkins Betts Patterson Mines PS 701 Pike Street Suite 1400 Seattle, WA 98101−3927 206−292−9988 Fax: 12063437053 Email: ctompkins@bpmlaw.com ATTORNEY TO BE NOTICED

Defendant
John Jessen also known as Bruce Jessen

represented by Brian S Paszamant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Henry F Schuelke , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James T Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey N Rosenthal (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher W Tompkins (See above for address) ATTORNEY TO BE NOTICED

Interested Party United States of America

represented by

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 7 of 25
Andrew Irwin Warden United States Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 202−616−5084 Fax: 202−616−8470 Email: andrew.warden@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Andrew Johnson US Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue NW Room 7322 Washington, DC 20530 202−514−1359 Fax: 202−616−8470 Email: timothy.johnson4@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 10/13/2015 10/13/2015 10/13/2015 10/23/2015
10/23/2015
10/23/2015
10/23/2015
10/27/2015

# Docket Text
1 COMPLAINT against John Jessen and James Elmer Mitchell (Receipt # SPO025286) Jury Demand. Filed by Suleiman Abdullah Salim, Obaid Ullah, and Mohamed Ahmed Ben Soud. (Attachments: # 1 Civil Cover Sheet)(CC, Case Administrator) (Entered: 10/13/2015)
Notice of Judge Assignment. Senior Judge Justin L. Quackenbush assigned to case. (CC, Case Administrator) (Entered: 10/13/2015)
2 Summons Issued as to John Jessen and James Elmer Mitchell. (Attachments: # 1 Summons)(CC, Case Administrator) (Entered: 10/13/2015)
3 MOTION to Appear Pro Hac Vice re Attorney: Dror Ladin. Filing fee $ 200, receipt number 0980−2191812. by All Plaintiffs. Motion Hearing set for 11/23/2015 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Admission Pro Hac Vice of Dror Ladin)(Baker, La Rond) (Entered: 10/23/2015)
4 MOTION to Appear Pro Hac Vice re Attorney: Jameel Jaffer. Filing fee $ 200, receipt number 0980−2191831. by All Plaintiffs. Motion Hearing set for 11/23/2015 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Admission Pro Hac Vice of Jameel Jaffer)(Baker, La Rond) (Entered: 10/23/2015)
5 MOTION to Appear Pro Hac Vice re Attorney: Hina Shamsi. Filing fee $ 200, receipt number 0980−2191839. by All Plaintiffs. Motion Hearing set for 11/23/2015 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Admission Pro Hac Vice of Hina Shamsi)(Baker, La Rond) (Entered: 10/23/2015)
6 MOTION to Appear Pro Hac Vice re Attorney: Steven Watt. Filing fee $ 200, receipt number 0980−2191845. by All Plaintiffs. Motion Hearing set for 11/23/2015 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Admission Pro Hac Vice of Steven Watt)(Baker, La Rond) (Entered: 10/23/2015)
7 ORDER GRANTING MOTION FOR PRO HAC VICE PARTICIPATION − granting 3 Motion for Leave to Appear Pro Hac Vice. granting 4 Motion for Leave to Appear Pro Hac Vice. granting 5 Motion for Leave to Appear Pro Hac Vice. granting 6 Motion for Leave to Appear Pro Hac Vice. Added Attorney Dror Ladin, Jameel Jaffer, Hina Shamsi and Steven Watt on behalf of Plaintiffs. Signed by Senior Judge Justin L. Quackenbush. (VR, Courtroom Deputy) (VR, Courtroom Deputy). (Entered: 10/27/2015)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 8 of 25

11/12/2015 11/12/2015 12/01/2015 12/07/2015 12/11/2015 12/11/2015
12/11/2015 12/11/2015 12/11/2015 12/17/2015 12/17/2015 12/17/2015 12/17/2015 12/21/2015
12/21/2015

8 WAIVER OF SERVICE Returned Executed by All Plaintiffs re James Elmer Mitchell. (Ladin, Dror) (Entered: 11/12/2015)
9 WAIVER OF SERVICE Returned Executed by All Plaintiffs re John Jessen. (Ladin, Dror) (Entered: 11/12/2015)
10 MOTION to Appear Pro Hac Vice re Attorney: Paul Hoffman. Filing fee $ 200, receipt number 0980−2216127. by All Plaintiffs. Motion Hearing set for 12/31/2015 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Baker, La Rond) (Entered: 12/01/2015)
11 ORDER GRANTING MOTION FOR PRO HAC VICE PARTICIPATION − granting 10 Motion for Leave to Appear Pro Hac Vice. Added Attorney Paul L. Hoffman for Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, and Obaid Ullah. Signed by Senior Judge Justin L. Quackenbush. (CC, Case Administrator) (Entered: 12/07/2015)
12 NOTICE of Appearance by Christopher W Tompkins on behalf of All Defendants (Attorney Christopher W Tompkins added to party John Jessen(pty:dft), Attorney Christopher W Tompkins added to party James Elmer Mitchell(pty:dft))(Tompkins, Christopher) (Entered: 12/11/2015)
13 MOTION to Appear Pro Hac Vice re Attorney: Henry F. Schuelke III. Filing fee $ 200, receipt number 0980−2225160. by All Defendants. Motion Hearing set for 1/11/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 12/11/2015)
14 MOTION to Appear Pro Hac Vice re Attorney: Brian S. Paszamant. Filing fee $ 200, receipt number 0980−2225172. by All Defendants. Motion Hearing set for 1/11/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 12/11/2015)
15 Joint MOTION Briefing Schedule & Stay of Initial Activity Pending Motion by All Defendants. Motion Hearing set for 1/11/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 12/11/2015)
16 DECLARATION by Christopher W. Tompkins in Support re 15 Joint MOTION Briefing Schedule & Stay of Initial Activity Pending Motion filed by All Defendants. (Tompkins, Christopher) (Entered: 12/11/2015)
17 Joint MOTION to File Over−Length Briefing by All Parties. Motion Hearing set for 1/19/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) Modified on 12/17/2015 (CC, Case Administrator). (Entered: 12/17/2015)
18 DECLARATION by Christopher W. Tompkins in Support re 17 Joint MOTION to File Over−Length Briefing filed by All Parties. (Tompkins, Christopher) Modified on 12/17/2015 (CC, Case Administrator). (Entered: 12/17/2015)
19 Joint MOTION to Expedite Consideration of Pending Motions by All Parties. Motion Hearing set for 12/22/2015 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) Modified on 12/17/2015 (CC, Case Administrator). (Entered: 12/17/2015)
20 DECLARATION by Christopher W. Tompkins in Support re 19 Joint MOTION to Expedite Consideration of Pending Motions filed by All Parties. (Tompkins, Christopher) Modified on 12/17/2015 (CC, Case Administrator). (Entered: 12/17/2015)
21 ORDER GRANTING MOTIONS FOR PRO HAC VICE PARTICIPATION − granting 13 and 14 Motion for Leave to Appear Pro Hac Vice. Added Attorneys Henry F. Schuelke, III, and Brian S. Paszamant for John Jessen and James Elmer Mitchell. Signed by Senior Judge Justin L. Quackenbush. (CC, Case Administrator) (Main Document 21 replaced on 1/5/2016) (RG, Ops Supervisor). (Entered: 12/21/2015)
22 ORDER SETTING BRIEFING SCHEDULE − granting in part 15 Motion; granting 17 Motion; and granting 19 Motion to Expedite. Signed by Senior Judge Justin L. Quackenbush. (CC, Case Administrator) (Entered: 12/21/2015)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 9 of 25

12/23/2015
12/28/2015
12/28/2015 12/29/2015
01/05/2016 01/08/2016
02/11/2016 03/02/2016 03/03/2016 04/08/2016 04/08/2016 04/08/2016 04/08/2016 04/19/2016 04/20/2016 04/20/2016 04/22/2016 04/27/2016

23 MOTION to Appear Pro Hac Vice re Attorney: James T. Smith. Filing fee $ 200, receipt number 0980−2233604. by All Defendants. Motion Hearing set for 1/22/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 12/23/2015)
24 ORDER RE: REMAINING PRETRIAL DATES signed by Senior Judge Justin L. Quackenbush. (CC, Case Administrator) Remark: Document incorrectly filed in this case. Modified on 12/28/2015 (LAM, ). Modified on 12/28/2015 (LAM, ). (Entered: 12/28/2015)
Docket Annotation − Re Filing Error: Order ECF No. 24 incorrectly filed in this case. Text Entry − No PDF attached. (LAM, ) (Entered: 12/28/2015)
25 ORDER GRANTING MOTION FOR PRO HAC VICE PARTICIPATION − granting 23 Motion for Leave to Appear Pro Hac Vice. Added Attorney James T. Smith for John Jessen and James Elmer Mitchell. Signed by Senior Judge Justin L. Quackenbush. (CC, Case Administrator) (Entered: 12/29/2015)
26 Docket Annotation − Re Filing Error: 21 Order on Motion for Leave to Appear Pro Hac Vice. Incorrect PDF attached to original docket entry. Attached is the correct PDF. (RG, Ops Supervisor) (Entered: 01/05/2016)
27 MOTION to Dismiss by All Defendants. Motion Hearing set for 4/22/2016 at 09:00 AM in Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 01/08/2016)
28 MEMORANDUM in Opposition re 27 MOTION to Dismiss filed by All Plaintiffs. (Attachments: # 1 Declaration of Dror Ladin)(Baker, La Rond) (Entered: 02/11/2016)
29 REPLY MEMORANDUM re 27 MOTION to Dismiss filed by All Defendants. (Tompkins, Christopher) (Entered: 03/02/2016)
30 ORDER DIRECTING FILING OF DISCOVERY PLAN AND PROPOSED SCHEDULE. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 03/03/2016)
31 LR 26.1 / LR 16.1 Attorney Report Proposed Discovery Plan & Scheduling Plan by All Defendants. (Attachments: # 1 Exhibit A)(Tompkins, Christopher) (Entered: 04/08/2016)
32 NOTICE of Appearance by Andrew Irwin Warden on behalf of United States of America (Attorney Andrew Irwin Warden added to party United States of America(pty:ip))(Warden, Andrew) (Entered: 04/08/2016)
33 STATEMENT of Interest by United States of America. (Warden, Andrew) (Entered: 04/08/2016)
34 LR 26.1 / LR 16.1 Attorney Report Proposed Discovery Plan and Scheduling Plan by All Plaintiffs. (Baker, La Rond) (Entered: 04/08/2016)
35 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING Re Maria L. LaGanga *U.S. MARSHALS ACTION REQUIRED*. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 04/19/2016)
36 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING Re: David Welna. *U.S. MARSHALS ACTION REQUIRED* Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 04/20/2016)
37 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING Re: Jessica Schulberg *U.S. MARSHALS ACTION REQUIRED*. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 04/20/2016)
38 Minute Entry for proceedings held before Senior Judge Justin L. Quackenbush: Motion Hearing held on 4/22/2016 re 27 MOTION to Dismiss filed by John Jessen, James Elmer Mitchell. (Reported by: Mark A. Snover) (LAM, ) (Entered: 04/25/2016)
39 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING. Proceedings held on 04−22−2016 in SPOKANE before Judge JUSTIN L QUACKENBUSH. Page Numbers: 1−90

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 10 of 25

04/28/2016 05/06/2016
05/06/2016 05/06/2016
05/06/2016 05/12/2016 05/23/2016
05/23/2016 06/09/2016
06/09/2016 06/09/2016 06/15/2016

Parties have seven (7) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
Information regarding the policy can be found on the court website at www.waed.uscourts.gov/sites/default/files/transcript_policy_notice_20130215.pdf.
To purchase a copy of the transcript contact Court Reporter/Transcriber MARK A SNOVER at 5094583434
. Redaction Request due 5/18/2016. Redacted Transcript Deadline set for 5/31/2016. Release of Transcript Restriction set for 7/26/2016. (Snover, Mark) (Entered: 04/27/2016)
40 MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 04/28/2016)
41 MOTION for Extension of Time to File Answer Unopposed by John Jessen, James Elmer Mitchell. Motion Hearing set for 6/6/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 05/06/2016)
42 DECLARATION by Christopher W. Tompkins in Support re 41 MOTION for Extension of Time to File Answer Unopposed filed by John Jessen, James Elmer Mitchell. (Attachments: # 1 Exhibit 1)(Tompkins, Christopher) (Entered: 05/06/2016)
43 MOTION to Expedite Unopposed Motion to Set Time to File Answer by John Jessen, James Elmer Mitchell. Motion Hearing set for 5/6/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 05/06/2016)
44 DECLARATION by Christopher W. Tompkins in Support re 43 MOTION to Expedite Unopposed Motion to Set Time to File Answer filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 05/06/2016)
45 ORDER GRANTING MOTION TO SET TIME TO FILE ANSWER Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 05/12/2016)
46 RESPONSE re 45 Order on Motion for Extension of Time to Answer, Order on Motion to Expedite ; Statement of the United States Addressing Production of Defendants' Non−Disclosure Agreements and Contracts by United States of America. (Warden, Andrew) (Entered: 05/23/2016)
47 STIPULATION Re Discovery by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 05/23/2016)
48 MOTION Case Management Procedure Unopposed by All Defendants. Motion Hearing set for 7/11/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 06/09/2016)
49 MOTION to Expedite ECF 48 by All Defendants. Motion Hearing set for 6/13/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 06/09/2016)
50 DECLARATION by Christopher W. Tompkins in Support re 49 MOTION to Expedite ECF 48 filed by All Defendants. (Tompkins, Christopher) (Entered: 06/09/2016)
51 ORDER RE: MOTION TO ESTABLISH CASE MANAGEMENT PROCEDURES (granting in part and denying in part 48 Motion to Establish Case Management Procedures; granting 49 Motion to Expedite; setting Telephonic Scheduling Conference 7/7/2016 at 1:30 P.M. PDT) Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 06/15/2016)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 11 of 25

06/15/2016 06/16/2016
06/16/2016 06/21/2016 06/21/2016
06/30/2016 06/30/2016 07/08/2016 07/08/2016 07/13/2016

Telephonic Scheduling Conference set for 7/7/2016 at 1:30 PM PDT before Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 06/16/2016)
52 NOTICE of Appearance by Emily Chiang on behalf of All Plaintiffs (Attorney Emily Chiang added to party Mohamed Ahmed Ben Soud(pty:pla), Attorney Emily Chiang added to party Suleiman Abdullah Salim(pty:pla), Attorney Emily Chiang added to party Obaid Ullah(pty:pla))(Chiang, Emily) (Entered: 06/16/2016)
53 NOTICE OF WITHDRAWAL OF COUNSEL by La Rond Baker on behalf of Plaintiffs Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah (Baker, La Rond) (Entered: 06/16/2016)
54 ANSWER to Complaint and Affirmative Defenses by John Jessen, James Elmer Mitchell.(Tompkins, Christopher) (Entered: 06/21/2016)
55 NOTICE RESETTING TELEPHONIC SCHEDULING CONFERENCE − Text entry;no PDF document. − By Court: Telephonic Scheduling Conference previously set for 7/7/16 is stricken and is RESET to Friday, 7/8/2016 at 10:30 AM PDT before Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 06/21/2016)
56 RESPONSE re 51 Order on Motion for Miscellaneous Relief,, Order on Motion to Expedite, by John Jessen, James Elmer Mitchell. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tompkins, Christopher) (Entered: 06/30/2016)
57 RESPONSE re 51 Order on Motion for Miscellaneous Relief,, Order on Motion to Expedite, by All Plaintiffs. (Ladin, Dror) (Entered: 06/30/2016)
58 Minute Entry for TELEPHONIC proceedings held before Senior Judge Justin L. Quackenbush: Scheduling Conference held on 7/8/2016. (Reported by: Ronelle F. Corbey) (LAM, ) (Entered: 07/08/2016)
59 SCHEDULING ORDER: (Pretrial Conference set for 6/9/2017 at 10:00 AM; Jury Trial set for 6/26/2017 at 9:00 AM). Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 07/08/2016)
60 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephonic Scheduling Conference. Proceedings held on 7/8/2016 in Spokane, WA, before Judge Justin L. Quackenbush. Page Numbers: 1 − 27

Parties have seven (7) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Information regarding the policy can be found on the court website at www.waed.uscourts.gov/sites/default/files/transcript_policy_notice_20130215.pdf.

To purchase a copy of the transcript contact Court Reporter/Transcriber Ronelle Corbey at Ronelle_Corbey@waed.uscourts.gov

08/23/2016 08/31/2016 09/07/2016

. Redaction Request due 8/3/2016. Redacted Transcript Deadline set for 8/15/2016. Release of Transcript Restriction set for 10/11/2016. (Corbey, Ronelle) (Main Document 60 replaced on 7/13/2016) (Corbey, Ronelle). (Main Document 60 replaced on 7/13/2016) (Corbey, Ronelle). (Entered: 07/13/2016)
61 NOTICE by All Defendants of Related Case Filing (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Tompkins, Christopher) (Entered: 08/23/2016)
62 NOTICE OF WITHDRAWAL OF COUNSEL by Jameel Jaffer on behalf of Plaintiffs Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah (Jaffer, Jameel) (Entered: 08/31/2016)
63 ORDER SETTING BRIEFING SCHEDULE ON MOTION TO COMPEL. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 09/07/2016)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 12 of 25

09/14/2016 09/15/2016 09/15/2016 09/15/2016 09/15/2016 09/15/2016 09/15/2016 09/19/2016
09/20/2016 09/20/2016 09/23/2016
09/23/2016 09/27/2016 09/28/2016 09/28/2016 09/28/2016

69 ORDER RE: MOTION FOR OVERLENGTH BRIEF. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 09/15/2016)
64 MOTION to Appear Pro Hac Vice re Attorney: Avram D. Frey. Filing fee $ 200, receipt number 0980−2432537. by All Plaintiffs. Motion Hearing set for 10/17/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 09/15/2016)
65 MOTION to Appear Pro Hac Vice re Attorney: Daniel J. McGrady. Filing fee $ 200, receipt number 0980−2432540. by All Plaintiffs. Motion Hearing set for 10/17/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 09/15/2016)
66 MOTION to Appear Pro Hac Vice re Attorney: Kate E. Janukowicz. Filing fee $ 200, receipt number 0980−2432542. by All Plaintiffs. Motion Hearing set for 10/17/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 09/15/2016)
67 MOTION to Appear Pro Hac Vice re Attorney: Lawrence S. Lustberg. Filing fee $ 200, receipt number 0980−2432543. by All Plaintiffs. Motion Hearing set for 10/17/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 09/15/2016)
Set/Reset Deadlines/Hearings: Jury Trial resumes 9/16/2016 at 8:30 AM in Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. Docketed in incorrect case (LAM, ) Modified on 9/15/2016 (LAM, ). (Entered: 09/15/2016)
68 Docket Annotation − Re Filing Error:Trial continuation notice for 9/16/16 filed in incorrect case. (LAM, ) (Entered: 09/15/2016)
70 ORDER GRANTING MOTIONS FOR PRO HAC VICE PARTICIPATION − granting 64 Motion for Leave to Appear Pro Hac Vice. granting 65 Motion for Leave to Appear Pro Hac Vice. granting 66 Motion for Leave to Appear Pro Hac Vice. granting 67 Motion for Leave to Appear Pro Hac Vice. Added Attorneys Avram D Frey,Daniel J McGrady,Kate E Janukowicz,Lawrence S Lustberg for Plaintiffs Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and Obaid Ullah. Signed by Senior Judge Justin L. Quackenbush. (VR, Courtroom Deputy) (Entered: 09/19/2016)
71 MOTION to Amend/Correct 54 Answer to Complaint by All Defendants. Motion Hearing set for 10/20/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 09/20/2016)
72 DECLARATION by Christopher W. Tompkins in Support re 71 MOTION to Amend/Correct 54 Answer to Complaint filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Tompkins, Christopher) (Entered: 09/20/2016)
73 MOTION for Protective Order Limiting Depositions Of CIA Officials To Written Questions by United States of America. Motion Hearing set for 9/29/2016 at 01:30 PM Spokane Courtroom 903 Teleconference before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Warden, Andrew) (Entered: 09/23/2016)
74 MOTION to Expedite Consideration Of The Government's Motion For Protective Order by United States of America. Motion Hearing set for 9/29/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Warden, Andrew) (Entered: 09/23/2016)
75 ORDER GRANTING MOTION FOR LEAVE TO AMEND ANSWER (ECF No. 71 ) Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 09/27/2016)
76 ORDER GRANTING MOTION TO EXPEDITE (ECF No. 74 ) Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 09/28/2016)
77 AMENDED ANSWER to Complaint by All Defendants.(Tompkins, Christopher) (Entered: 09/28/2016)
78 RESPONSE to Motion re 73 MOTION for Protective Order Limiting Depositions Of CIA Officials To Written Questions filed by All Defendants. (Tompkins, Christopher)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 13 of 25

09/29/2016 10/04/2016 10/11/2016 10/11/2016 10/11/2016 10/11/2016
10/11/2016
10/13/2016 10/17/2016
10/17/2016 10/18/2016 10/18/2016 10/20/2016 10/25/2016 11/01/2016 11/02/2016 11/02/2016 11/08/2016

(Entered: 09/28/2016)
79 Minute Entry for TELEPHONIC proceedings held before Senior Judge Justin L. Quackenbush: Motion Hearing held on 9/29/2016. (Reported by: Mark A. Snover) (LAM, ) (Entered: 10/03/2016)
80 ORDER RE: MOTION FOR PROTECTIVE ORDER Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 10/04/2016)
81 MOTION for Protective Order by All Defendants. Motion Hearing set for 11/10/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 10/11/2016)
82 DECLARATION by Tina Constable in Support re 81 MOTION for Protective Order filed by All Defendants. (Tompkins, Christopher) (Entered: 10/11/2016)
83 DECLARATION by Brian Paszamant in Support re 81 MOTION for Protective Order filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Tompkins, Christopher) (Entered: 10/11/2016)
84 NOTICE by United States of America re 80 Order on Motion for Protective Order re Filing of Defendants' Contracts and Nondisclosure Agreements (Attachments: # 1 Exhibit 1 (Mitchell contracts), # 2 Exhibit 2 (Jessen contracts), # 3 Exhibit 3 (Nondisclosure agreements))(Warden, Andrew) (Entered: 10/11/2016)
85 STATUS REPORT Addressing Document Production and Statement Addressing Redactions To Documents Produced in Response to Defendants' Subpoenas by United States of America. (Attachments: # 1 Exhibit 1 (classification guidance), # 2 Exhibit 2 (OMS document), # 3 Exhibit 3 (Gul Rahman documents))(Warden, Andrew) (Entered: 10/11/2016)
86 RESPONSE to Motion re 81 MOTION for Protective Order filed by All Plaintiffs. (Attachments: # 1 Declaration of Lawrence S. Lustberg, # 2 Exhibit A, # 3 Exhibit B)(Lustberg, Lawrence) (Entered: 10/13/2016)
87 STATEMENT re 80 Order on Motion for Protective Order Statement by the United States Addressing Proposed Deadline for Document Production by the Central Intelligence Agency by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Warden, Andrew) (Entered: 10/17/2016)
88 STATEMENT re 80 Order on Motion for Protective Order re Deadline for US Document Production by John Jessen, James Elmer Mitchell. (Paszamant, Brian) (Entered: 10/17/2016)
89 REPLY MEMORANDUM re 81 MOTION for Protective Order filed by All Defendants. (Tompkins, Christopher) (Entered: 10/18/2016)
90 DECLARATION by Ann E. Querns in Support re 81 MOTION for Protective Order filed by All Defendants. (Tompkins, Christopher) (Entered: 10/18/2016)
91 ORDER SETTING DOCUMENT PRODUCTION DEADLINE. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 10/20/2016)
92 ORDER GRANTING MOTION FOR PROTECTIVE ORDER IN PART. Granting in part 81 Motion for Protective Order. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 10/25/2016)
93 NOTICE of Appearance by Timothy Andrew Johnson on behalf of United States of America (Attorney Timothy Andrew Johnson added to party United States of America(pty:ip))(Johnson, Timothy) (Entered: 11/01/2016)
94 STATUS REPORT Re: Manuscript by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 11/02/2016)
95 ORDER RE: MOTION TO EXPEDITE. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 11/02/2016)
96 ORDER RE: MOTION TO RECONSIDER Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 11/08/2016)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 14 of 25

11/16/2016 11/16/2016 11/16/2016 11/16/2016 11/16/2016 11/16/2016 11/16/2016 11/18/2016 11/18/2016
11/21/2016 11/23/2016 11/23/2016 11/23/2016 11/30/2016 12/02/2016 12/02/2016

97 MOTION to Compel IMEs and Depositions, and for Relief from Related Deadlines by John Jessen, James Elmer Mitchell. Motion Hearing set for 12/16/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 11/16/2016)
98 DECLARATION by Charrise L. Alexander in Support re 97 MOTION to Compel IMEs and Depositions, and for Relief from Related Deadlines filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 11/16/2016)
99 DECLARATION by Dr. Joseph J. Carter in Support re 97 MOTION to Compel IMEs and Depositions, and for Relief from Related Deadlines filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 11/16/2016)
100 DECLARATION by Dr. Roger K. Pitman in Support re 97 MOTION to Compel IMEs and Depositions, and for Relief from Related Deadlines filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 11/16/2016)
101 DECLARATION by Dr. Joseph D. Zuckerman in Support re 97 MOTION to Compel IMEs and Depositions, and for Relief from Related Deadlines filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 11/16/2016)
102 Motion to Seal by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 11/16/2016)
104 Praecipe filed by John Jessen, James Elmer Mitchell: Re 102 Motion to Seal. Description: Did not file proposed order as an attchment to the motion to seal.. (Tompkins, Christopher) (Entered: 11/16/2016)
105 MOTION to Dismiss by John Jessen, James Elmer Mitchell. Motion Hearing set for 1/19/2017 at 10:00 AM Spokane Courtroom 903 Teleconference before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 11/18/2016)
106 DECLARATION by Christopher W. Tompkins in Support re 105 MOTION to Dismiss filed by John Jessen, James Elmer Mitchell. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit)(Tompkins, Christopher) (Entered: 11/18/2016)
107 Witness List and Expert Disclosures by All Plaintiffs. (Lustberg, Lawrence) (Entered: 11/21/2016)
108 ORDER RE: MOTION TO COMPEL Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 11/23/2016)
109 MOTION to Extend Deadlines by John Jessen, James Elmer Mitchell. Motion Hearing set for 12/23/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Paszamant, Brian) (Entered: 11/23/2016)
110 MOTION to Expedite Consideration of Pending Motion to Modify and Extend Certain Deadlines by John Jessen, James Elmer Mitchell. Motion Hearing set for 11/30/2016 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Paszamant, Brian) (Entered: 11/23/2016)
111 MEMORANDUM in Opposition re 97 MOTION to Compel IMEs and Depositions, and for Relief from Related Deadlines filed by All Plaintiffs. (Attachments: # 1 Declaration of Jan Pederson, # 2 Declaration of Steven M. Watt)(Lustberg, Lawrence) (Entered: 11/30/2016)
112 ORDER RE: MOTION TO COMPEL IMEs AND DEPOSITIONS AND RELATED MOTIONS; granting 102 Motion to Seal; granting 109 Motion to Extend Deadline; granting 110 Motion to Expedite. Signed by Senior Judge Justin L. Quackenbush. (CV, Case Administrator) (Entered: 12/02/2016)
113 Sealed Document. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(CV, Case Administrator) (Entered: 12/02/2016)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 15 of 25

12/07/2016 12/07/2016 12/07/2016 12/07/2016 12/09/2016 12/09/2016 12/12/2016 12/12/2016 12/20/2016 12/20/2016 12/22/2016 12/23/2016 12/27/2016 12/27/2016 12/29/2016 01/09/2017 01/19/2017
01/20/2017
01/23/2017 01/27/2017

114 REPLY MEMORANDUM re 97 MOTION to Compel IMEs and Depositions, and for Relief from Related Deadlines filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 12/07/2016)
115 DECLARATION by Jeffrey Rosenthal in Support re 97 MOTION to Compel IMEs and Depositions, and for Relief from Related Deadlines filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 12/07/2016)
116 DECLARATION by Dr. Roger K. PItman in Support re 97 MOTION to Compel IMEs and Depositions, and for Relief from Related Deadlines filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 12/07/2016)
117 Motion to Seal by John Jessen, James Elmer Mitchell. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 12/07/2016)
120 MEMORANDUM in Opposition re 105 MOTION to Dismiss filed by All Plaintiffs. (Ladin, Dror) (Entered: 12/09/2016)
121 DECLARATION by Dror Ladin in Opposition re 105 MOTION to Dismiss filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ladin, Dror) (Entered: 12/09/2016)
122 SUPPLEMENT re 114 Reply Memorandum re Motion to Compel IMEs and Depositions, and for Relief from Related Deadlines by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 12/12/2016)
123 Disclosure of Expert Witnesses Pursuant to Fed. R. Civ. P. 26(a)(2) by All Defendants. (Tompkins, Christopher) (Entered: 12/12/2016)
124 ORDER Re: Motion to Compel Medical Exams and Depositions (ECF No. 97 ) Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 12/20/2016)
125 Sealed Document. (LAM, ) (Entered: 12/20/2016)
126 REPLY MEMORANDUM re 105 MOTION to Dismiss filed by All Defendants. (Tompkins, Christopher) (Entered: 12/22/2016)
127 STATEMENT re 126 Reply Memorandum by All Plaintiffs. (Ladin, Dror) (Entered: 12/23/2016)
128 REPLY MEMORANDUM re 105 MOTION to Dismiss Amended filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 12/27/2016)
129 RESPONSE re 127 Statement re Defendants' Reply in Support of Motion to Dismiss by John Jessen, James Elmer Mitchell. (Attachments: # 1 Exhibit)(Tompkins, Christopher) (Entered: 12/27/2016)
130 AMENDED DOCUMENT by All Plaintiffs. Amendment to 107 Witness List to Include Rebuttal Expert Report of Kevin Heller. (Lustberg, Lawrence) (Entered: 12/29/2016)
131 STATUS REPORT JOINT PER 12/20/16 ORDER by All Defendants. (Tompkins, Christopher) (Entered: 01/09/2017)
132 Minute Entry for TELEPHONIC proceedings held before Senior Judge Justin L. Quackenbush: Motion Hearing held on 1/19/2017 re 105 MOTION to Dismiss filed by John Jessen, James Elmer Mitchell. (Reported by: Dorothy Stiles) (LAM, ) (Entered: 01/20/2017)
133 ORDER DENYING MOTION TO COMPEL AND ALLOWING RULE 35 EXAMS AS AGREED BY THE PARTIES (denying as moot Defendants' Motion to Compel IME's and Depositions 97 ) Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 01/20/2017)
134 ORDER RE MOTION TO EXPEDITE. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 01/23/2017)
135 ORDER RE: MOTION TO DISMISS (denying 105 Motion to Dismiss) Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 01/27/2017)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 16 of 25

01/31/2017
01/31/2017
02/02/2017 02/02/2017 02/02/2017 02/07/2017

136 MOTION to Extend Deadlines or Compel by All Plaintiffs. Motion Hearing set for 3/2/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Declaration of Lawrence S. Lustberg, Esq. In Support of Motion to Extend or Compel, # 2 Exhibits to the Declaration of Lawrence S. Lustberg, Esq., # 3 Declaration of Hina Shamsi, Esq. In Support of Motion to Extend or Compel, # 4 Proposed Order − Motion to Extend or Compel)(Lustberg, Lawrence) (Entered: 01/31/2017)
137 MOTION to Expedite Consideration of Plaintiffs' Motion to Extend or Compel by All Plaintiffs. Motion Hearing set for 2/7/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Proposed Order − Motion to Expedite Consideration of Plaintiffs' Motion to Extend or Compel)(Lustberg, Lawrence) (Entered: 01/31/2017)
138 ORDER GRANTING MOTION TO EXPEDITE 137 Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 02/02/2017)
139 RESPONSE to Motion re 136 MOTION to Extend Deadlines or Compel filed by All Defendants. (Paszamant, Brian) (Entered: 02/02/2017)
140 DECLARATION by Brian S. Paszamant in Opposition re 136 MOTION to Extend Deadlines or Compel filed by All Defendants. (Attachments: # 1 Exhibit A)(Paszamant, Brian) (Entered: 02/02/2017)
141 NOTICE OF FILING OF OFFICIAL TRANSCRIPT: Motion to Dismiss. Proceedings held on January 19, 2017, in Spokane, WA, via Teleconference, before Senior Judge Justin L. Quackenbush. Page Numbers: 1−44

Parties have seven (7) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Information regarding the policy can be found on the court website at www.waed.uscourts.gov/sites/default/files/transcript_policy_notice_20130215.pdf

To purchase a copy of the transcript contact Court Reporter/Transcriber Dorothy Stiles at 509−458−3465 or Dorothy_Stiles@waed.uscourts.gov

02/09/2017 02/14/2017
02/16/2017 02/20/2017 02/22/2017

Redaction Request due 2/28/2017. Redacted Transcript Deadline set for 3/10/2017. Release of Transcript Restriction set for 5/8/2017. (Stiles, Dorothy) (Entered: 02/07/2017)
142 ORDER Granting 136 Motion to Extend Deadlines. Signed by Senior Judge Justin L. Quackenbush. (CV, Case Administrator) (Entered: 02/09/2017)
143 Minute Entry for TELEPHONIC proceedings held before Senior Judge Justin L. Quackenbush: Motion Hearing re Motion to Compel held on 2/14/2017. (Reported by: Dorothy Stiles) (LAM, ) (Entered: 02/16/2017)
144 ORDER RE: MOTION TO EXPEDITE. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 02/16/2017)
145 ORDER RE: DISCOVERY STATUS. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 02/20/2017)
146 NOTICE OF FILING OF OFFICIAL TRANSCRIPT: Motion Hearing. Proceedings held on February 14, 2017, in Spokane via Teleconference, before Senior Judge Justin L. Quackenbush. Page Numbers: 1−41

Parties have seven (7) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 17 of 25

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Information regarding the policy can be found on the court website at www.waed.uscourts.gov/sites/default/files/transcript_policy_notice_20130215.pdf.

To purchase a copy of the transcript contact Court Reporter/Transcriber Dorothy Stiles at 509−458−3465 or Dorothy_Stiles@waed.uscourts.gov

02/28/2017 03/14/2017 03/14/2017 03/14/2017 03/20/2017 03/20/2017 03/29/2017
04/14/2017 04/14/2017
04/20/2017
04/21/2017

Redaction Request due 3/15/2017. Redacted Transcript Deadline set for 3/27/2017. Release of Transcript Restriction set for 5/23/2017. (Stiles, Dorothy) (Entered: 02/22/2017)
147 ORDER RE: FOURTH MOTION TO COMPEL. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 02/28/2017)
148 Joint MOTION to Extend Deadlines by All Defendants. Motion Hearing set for 4/13/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 03/14/2017)
149 MOTION to Expedite Unopposed by All Defendants. Motion Hearing set for 3/17/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 03/14/2017)
150 DECLARATION by Christopher W. Tompkins in Support re 149 MOTION to Expedite Unopposed filed by All Defendants. (Tompkins, Christopher) (Entered: 03/14/2017)
151 ORDER GRANTING JOINT MOTION TO EXTEND DEADLINES 148 Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 03/20/2017)
Reset Hearings per Order 151 Pretrial Conference reset for 8/21/2017 at 10:00 AM in Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. Jury Trial reset for 9/5/2017 at 9:00 AM in Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 03/20/2017)
152 ORDER SETTING HEARING (In−Court Hearing re Defendants/Petitioners' third Motion to Compel ECF No.54 MC−16−36−JLQ and Defendants/Petitioners' fourth Motion to Compel ECF No.64 MC−16−36−JLQ set for 5/5/2017 at 9:00 AM Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush). Signed by Senior Judge Justin L. Quackenbush. (LAM, ) cc: CISO W. Scooter Slade (Entered: 03/29/2017)
153 MOTION to Appear Pro Hac Vice re Attorney: Anthony DiCaprio. Filing fee $ 200, receipt number 0980−2588363. by All Plaintiffs. Motion Hearing set for 5/15/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Chiang, Emily) (Entered: 04/14/2017)
154 ORDER GRANTING MOTION FOR PRO HAC VICE PARTICIPATION. Granting 153 Motion for Leave to Appear Pro Hac Vice. Added Attorney Anthony P DiCaprio for Mohamed Ahmed Ben Soud, Anthony P DiCaprio for Suleiman Abdullah Salim, Anthony P DiCaprio for Obaid Ullah. Signed by Senior Judge Justin L. Quackenbush. (SK, Case Administrator) (Entered: 04/14/2017)
155 MOTION to Appear Pro Hac Vice re Attorney: Jeffrey N. Rosenthal. Filing fee $ 200, receipt number 0980−2592988. by John Jessen, James Elmer Mitchell. Motion Hearing set for 5/22/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 04/20/2017)
156 ORDER GRANTING MOTION FOR PRO HAC VICE PARTICIPATION. Granting 155 Motion for Leave to Appear Pro Hac Vice. Added Attorney Jeffrey N Rosenthal for John Jessen,Jeffrey N Rosenthal for James Elmer Mitchell. Signed by Senior Judge Justin L. Quackenbush. (SK, Case Administrator) (Entered: 04/21/2017)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 18 of 25

05/05/2017 05/09/2017 05/09/2017
05/09/2017 05/10/2017 05/11/2017 05/12/2017 05/19/2017

157 Minute Entry for proceedings held before Senior Judge Justin L. Quackenbush: Motion Hearing held on 5/5/2017. (Reported by: Dorothy Stiles) (Attachments: # 1 Court Exhibits 1 and 2) (LAM, ) (Entered: 05/09/2017)
158 MOTION for Leave to File Excess Pages by All Defendants. Motion Hearing set for 6/8/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Paszamant, Brian) (Entered: 05/09/2017)
159 MOTION to Expedite MOTION for Over−length Briefing [ECF 158] by All Defendants. Motion Hearing set for 5/12/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Paszamant, Brian) (Entered: 05/09/2017)
160 DECLARATION by Brian S. Paszamant in Support re 159 MOTION to Expedite MOTION for Over−length Briefing [ECF 158], 158 MOTION for Leave to File Excess Pages filed by All Defendants. (Paszamant, Brian) (Entered: 05/09/2017)
161 RESPONSE to Motion re 158 MOTION for Leave to File Excess Pages filed by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. (Ladin, Dror) (Entered: 05/10/2017)
162 REPLY MEMORANDUM re 158 MOTION for Leave to File Excess Pages filed by All Defendants. (Paszamant, Brian) (Entered: 05/11/2017)
163 ORDER RE: MOTION FOR OVERLENGTH BRIEF (granting 159 Motion to Expedite; granting in part 158 Motion for Leave to File Excess Pages) Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 05/12/2017)
164 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing. Proceedings held on May 5, 2017, in Spokane, WA, before Senior Judge Justin L. Quackenbush. Page Numbers: 1−95

Parties have seven (7) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Information regarding the policy can be found on the court website at www.waed.uscourts.gov/sites/default/files/transcript_policy_notice_20130215.pdf.

To purchase a copy of the transcript contact Court Reporter/Transcriber Dorothy Stiles at 509−458−3465 or Dorothy_Stiles@waed.uscourts.gov

05/22/2017 05/22/2017 05/22/2017 05/22/2017

Redaction Request due 6/9/2017. Redacted Transcript Deadline set for 6/19/2017. Release of Transcript Restriction set for 8/17/2017. (Stiles, Dorothy) (Entered: 05/19/2017)
165 MOTION to Take Judicial Notice by John Jessen, James Elmer Mitchell. Motion Hearing set for 6/21/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 05/22/2017)
166 DECLARATION by Brian S. Paszamant in Support re 165 MOTION to Take Judicial Notice filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 05/22/2017)
167 MOTION to Expedite Consideration of Pending Motion by John Jessen, James Elmer Mitchell. Motion Hearing set for 5/25/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 05/22/2017)
168 DECLARATION by Brian S. Paszamant in Support re 167 MOTION to Expedite Consideration of Pending Motion filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 05/22/2017)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 19 of 25

05/22/2017 05/22/2017 05/22/2017 05/22/2017 05/22/2017 05/22/2017 05/22/2017 05/22/2017
05/22/2017
05/22/2017 05/22/2017

169 MOTION for Summary Judgment by All Defendants. Motion Hearing set for 7/28/2017 at 09:30 AM in Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 05/22/2017)
170 STATEMENT OF UNDISPUTED FACTS re 169 MOTION for Summary Judgment filed by All Defendants. (Tompkins, Christopher) (Entered: 05/22/2017)
171 DECLARATION by John "Bruce" Jessen in Support re 169 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Exhibit 1)(Tompkins, Christopher) (Entered: 05/22/2017)
172 DECLARATION by James Elmer Mitchell in Support re 169 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Exhibit 1)(Tompkins, Christopher) (Entered: 05/22/2017)
173 DECLARATION by Julian G. Ku in Support re 169 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Tompkins, Christopher) (Entered: 05/22/2017)
174 DECLARATION by John Rizzo in Support re 169 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V)(Tompkins, Christopher) (Entered: 05/22/2017)
175 DECLARATION by Jose Rodriguez in Support re 169 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S)(Tompkins, Christopher) (Entered: 05/22/2017)
176 DECLARATION by Christopher W. Tompkins in Support re 169 MOTION for Summary Judgment with Exhibits 1−40 filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40)(Tompkins, Christopher) (Entered: 05/22/2017)
177 DECLARATION by Christopher W. Tompkins in Support re 169 MOTION for Summary Judgment with Exhibits 41−79 [see ECF 176]] filed by All Defendants. (Attachments: # 1 Exhibit 41, # 2 Exhibit 42, # 3 Exhibit 43, # 4 Exhibit 44, # 5 Exhibit 45, # 6 Exhibit 46, # 7 Exhibit 47, # 8 Exhibit 48, # 9 Exhibit 49, # 10 Exhibit 50, # 11 Exhibit 51, # 12 Exhibit 52, # 13 Exhibit 53, # 14 Exhibit 54, # 15 Exhibit 55, # 16 Exhibit 56, # 17 Exhibit 57, # 18 Exhibit 58, # 19 Exhibit 59, # 20 Exhibit 60, # 21 Exhibit 61, # 22 Exhibit 62, # 23 Exhibit 63, # 24 Exhibit 64, # 25 Exhibit 65, # 26 Exhibit 66, # 27 Exhibit 67, # 28 Exhibit 68, # 29 Exhibit 69, # 30 Exhibit 70, # 31 Exhibit 71, # 32 Exhibit 72, # 33 Exhibit 73, # 34 Exhibit 74, # 35 Exhibit 75, # 36 Exhibit 76, # 37 Exhibit 77, # 38 Exhibit 78, # 39 Exhibit 79)(Tompkins, Christopher) (Entered: 05/22/2017)
178 MOTION for Partial Summary Judgment by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. Motion Hearing set for 7/28/2017 at 09:30 AM in Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Ladin, Dror) (Entered: 05/22/2017)
179 STATEMENT OF FACTS re 178 MOTION for Partial Summary Judgment filed by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. (Ladin, Dror) (Entered: 05/22/2017)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 20 of 25

05/22/2017 05/22/2017 05/22/2017
05/22/2017
05/24/2017 05/25/2017 05/25/2017 05/30/2017
05/31/2017 05/31/2017 06/12/2017 06/12/2017 06/12/2017 06/12/2017

180 DECLARATION by Mohamed Ahmed Ben Soud in Support re 178 MOTION for Partial Summary Judgment filed by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. (Ladin, Dror) (Entered: 05/22/2017)
181 DECLARATION by Suleiman Abdullah Salim in Support re 178 MOTION for Partial Summary Judgment filed by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. (Ladin, Dror) (Entered: 05/22/2017)
182 DECLARATION by Dror Ladin in Support re 178 MOTION for Partial Summary Judgment with Exhibits A−NN filed by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN)(Ladin, Dror) (Entered: 05/22/2017)
183 DECLARATION by Dror Ladin in Support re 178 MOTION for Partial Summary Judgment with Exhibits OO−BBB filed by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. (Attachments: # 1 Exhibit OO, # 2 Exhibit PP, # 3 Exhibit QQ, # 4 Exhibit RR, # 5 Exhibit SS, # 6 Exhibit TT, # 7 Exhibit UU, # 8 Exhibit VV, # 9 Exhibit WW, # 10 Exhibit XX, # 11 Exhibit YY, # 12 Exhibit ZZ, # 13 Exhibit AAA, # 14 Exhibit BBB)(Ladin, Dror) (Entered: 05/22/2017)
184 MEMORANDUM in Opposition re 165 MOTION to Take Judicial Notice filed by All Plaintiffs. (Lustberg, Lawrence) (Entered: 05/24/2017)
185 CERTIFICATE OF SERVICE as to 181 Declaration in Support of Motion, 183 Declaration in Support of Motion, 182 Declaration in Support of Motion,,, 180 Declaration in Support of Motion filed by All Plaintiffs. (Ladin, Dror) (Entered: 05/25/2017)
186 REPLY MEMORANDUM re 165 MOTION to Take Judicial Notice filed by All Defendants. (Tompkins, Christopher) (Entered: 05/25/2017)
187 ORDER RE PRETRIAL FILINGS AND EXTENDING DEADLINES. Per ECF No. 151 , the Pretrial Conference will be held in Spokane, Washington on 8/21/17 at 10:00 a.m. The Jury Trial shall commence at 9:00a.m. on 9/5/17, in Spokane, Washington. Signed by Senior Judge Justin L. Quackenbush. (SK, Case Administrator) (Entered: 05/30/2017)
188 ORDER RE: THIRD AND FOURTH MOTION TO COMPEL AND ASSERTION OF STATE SECRETS PRIVILEGE (re ECF No. 54 & 64 in Case No. 16−MC−36−JLQ). Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 05/31/2017)
189 ORDER RE: MOTION TO TAKE JUDICIAL NOTICE (granting 167 Motion to Expedite; granting in part and reserving in part 165 Motion to Take Judicial Notice) Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 05/31/2017)
190 RESPONSE to Motion re 178 MOTION for Partial Summary Judgment filed by John Jessen, James Elmer Mitchell. (Paszamant, Brian) (Entered: 06/12/2017)
191 DECLARATION by Brian S. Paszamant in Opposition re 178 MOTION for Partial Summary Judgment filed by John Jessen, James Elmer Mitchell. (Paszamant, Brian) (Entered: 06/12/2017)
192 RESPONSE to Motion re 178 MOTION for Partial Summary Judgment Defs' Response to Pltfs.' Stmt of Undisputed Material Facts filed by John Jessen, James Elmer Mitchell. (Paszamant, Brian) (Entered: 06/12/2017)
193 RESPONSE to Motion re 169 MOTION for Summary Judgment filed by All Plaintiffs. Motion Hearing set for 7/28/2017 at 09:30 AM Spokane before Senior Judge Justin L. Quackenbush. (Ladin, Dror) (Entered: 06/12/2017)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 21 of 25

06/12/2017
06/12/2017
06/12/2017 06/26/2017 06/26/2017 06/26/2017 06/26/2017 06/26/2017 06/26/2017 06/26/2017 06/26/2017 06/26/2017
07/10/2017
07/13/2017

194 RESPONSE to Motion re 169 MOTION for Summary Judgment Plaintiffs' Statement of Facts in Opposition to Defendants' Motion for Summary Judgment AND Response to Defendants' Statement of Undisputed Facts in Support of Their Motion for Summary Judgment filed by All Plaintiffs. Motion Hearing set for 7/28/2017 at 09:30 AM Spokane before Senior Judge Justin L. Quackenbush. (Watt, Steven) (Entered: 06/12/2017)
195 DECLARATION by Steven M. Watt, Esq. in Opposition re 169 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Certificate of Service)(Watt, Steven) (Entered: 06/12/2017)
196 DECLARATION by Kevin Jon Heller in Opposition re 169 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Certificate of Service)(Watt, Steven) (Entered: 06/12/2017)
197 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING *U.S. MARSHALS ACTION REQUIRED*. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 06/26/2017)
198 MOTION to Exclude by All Defendants. Motion Hearing set for 7/28/2017 at 09:30 AM in Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 06/26/2017)
199 DECLARATION by ADRIEN PICKARD in Support re 198 MOTION to Exclude filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Tompkins, Christopher) (Entered: 06/26/2017)
200 REPLY MEMORANDUM re 169 MOTION for Summary Judgment filed by All Defendants. (Tompkins, Christopher) (Entered: 06/26/2017)
201 STATEMENT OF UNDISPUTED [re REPLY 200 FACTS re 169 MOTION for Summary Judgment filed by All Defendants. (Tompkins, Christopher) (Entered: 06/26/2017)
202 DECLARATION by JEFFREY N. ROSENTHAL in Support re 169 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Rosenthal, Jeffrey) (Entered: 06/26/2017)
203 REPLY MEMORANDUM re 178 MOTION for Partial Summary Judgment filed by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. (Ladin, Dror) (Entered: 06/26/2017)
204 STATEMENT OF Reply Undisputed Material FACTS re 178 MOTION for Partial Summary Judgment filed by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. (Ladin, Dror) (Entered: 06/26/2017)
205 DECLARATION by Daniel J. McGrady in Support re 178 MOTION for Partial Summary Judgment filed by Mohamed Ahmed Ben Soud, Suleiman Abdullah Salim, Obaid Ullah. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(McGrady, Daniel) (Entered: 06/26/2017)
206 RESPONSE to Motion re 198 MOTION to Exclude filed by All Plaintiffs. Motion Hearing set for 7/28/2017 at 09:30 AM Spokane before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Declaration of Lawrence S. Lustberg, # 2 Exhibit A, # 3 Exhibit B, # 4 Declaration of Senator Ron Wyden)(Lustberg, Lawrence) (Entered: 07/10/2017)
207 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING *U.S. MARSHALS ACTION REQUIRED*. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 07/13/2017)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 22 of 25

07/14/2017
07/14/2017 07/14/2017
07/14/2017
07/14/2017 07/17/2017 07/25/2017 07/26/2017 07/26/2017
07/27/2017 07/27/2017 07/28/2017 07/28/2017 07/28/2017
07/28/2017
07/28/2017

208 MOTION to Exclude in Part the Testimony of Roger K. Pitman, M.D. by All Plaintiffs. Motion Hearing set for 8/18/2017 Without Oral Argument before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Ladin, Dror) (Entered: 07/14/2017)
209 DECLARATION by Kate Janukowicz in Support re 208 MOTION to Exclude in Part the Testimony of Roger K. Pitman, M.D. filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Janukowicz, Kate) (Entered: 07/14/2017)
210 MOTION to Exclude Expert Opinions by All Defendants. Motion Hearing set for 08/21/2017 at 10:00 AM Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 07/14/2017)
211 DECLARATION by Ariel S. Glasner in Support re 210 MOTION to Exclude Expert Opinions filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Tompkins, Christopher) (Entered: 07/14/2017)
212 Motion to Seal by All Defendants. (Tompkins, Christopher) (Entered: 07/14/2017)
214 REPLY MEMORANDUM re 198 MOTION to Exclude filed by All Defendants. (Tompkins, Christopher) (Entered: 07/17/2017)
215 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING *U.S. MARSHALS ACTION REQUIRED*. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 07/25/2017)
216 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING *U.S. MARSHALS ACTION REQUIRED*. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 07/26/2017)
217 NOTICE of Appearance by Jeffry Keith Finer on behalf of All Plaintiffs (Attorney Jeffry Keith Finer added to party Mohamed Ahmed Ben Soud(pty:pla), Attorney Jeffry Keith Finer added to party Suleiman Abdullah Salim(pty:pla), Attorney Jeffry Keith Finer added to party Obaid Ullah(pty:pla))(Finer, Jeffry) (Entered: 07/26/2017)
218 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING *U.S. MARSHALS ACTION REQUIRED*. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 07/27/2017)
219 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING *U.S. MARSHALS ACTION REQUIRED*. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 07/27/2017)
220 RESPONSE to Motion re 210 MOTION to Exclude Expert Opinions filed by All Plaintiffs. (Attachments: # 1 Declaration of Dr. Sondra Crosby, # 2 Exhibit 1)(Lustberg, Lawrence) (Entered: 07/28/2017)
221 RESPONSE to Motion re 208 MOTION to Exclude in Part the Testimony of Roger K. Pitman, M.D. filed by All Defendants. (Tompkins, Christopher) (Entered: 07/28/2017)
222 DECLARATION by Ariel S. Glasner in Opposition re 208 MOTION to Exclude in Part the Testimony of Roger K. Pitman, M.D. filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Tompkins, Christopher) (Entered: 07/28/2017)
223 DECLARATION by Kate E. Janukowicz in Opposition re 210 MOTION to Exclude Expert Opinions filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Janukowicz, Kate) (Entered: 07/28/2017)
226 Minute Entry for proceedings held before Senior Judge Justin L. Quackenbush: Motion Hearing held on 7/28/2017 re 198 MOTION to Exclude filed by John Jessen, James Elmer Mitchell, 169 MOTION for Summary Judgment filed by John Jessen, James Elmer Mitchell, 178 MOTION for Partial Summary Judgment filed by Obaid Ullah, Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud. (Reported/Recorded by: Ronelle F. Corbey) (LAM, ) (Entered: 08/01/2017)

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 23 of 25

07/31/2017 07/31/2017 08/01/2017 08/01/2017 08/02/2017
08/02/2017
08/02/2017
08/02/2017 08/02/2017

224 STIPULATION re Docs Produced by US Government in Connection with this Litigation by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 07/31/2017)
225 STIPULATION to Conduct Trial Deposition of Mohamed Ben Soud by All Plaintiffs. (Lustberg, Lawrence) (Entered: 07/31/2017)
227 Exhibit List by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 08/01/2017)
228 Exhibit List by All Plaintiffs. (Lustberg, Lawrence) (Entered: 08/01/2017)
229 Consent MOTION Procedures Governing Trial Testimony of Former Government Officials and Contractors by United States of America. Motion Hearing set for 08/21/2017 at 10:00 AM Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Warden, Andrew) (Entered: 08/02/2017)
230 Stipulated MOTION Restrictions on Trial Questioning, Evidence and Argument by John Jessen, James Elmer Mitchell. Motion Hearing set for 08/21/2017 at 10:00 AM Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 08/02/2017)
231 MOTION in Limine and Request for Judicial Notice by John Jessen, James Elmer Mitchell. Motion Hearing set for 08/21/2017 at 10:00 AM Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (Attachments: # 1 Text of Proposed Order)(Tompkins, Christopher) (Entered: 08/02/2017)
232 DECLARATION by Christopher Tompkins in Support re 231 MOTION in Limine and Request for Judicial Notice filed by John Jessen, James Elmer Mitchell. (Attachments: # 1 Exhibit)(Tompkins, Christopher) (Entered: 08/02/2017)
233 NOTICE of Filing of Non−Scannable Exhibits with the Clerk. The following non−scannable exhibits have been filed with the Clerk: DVD of videoclip entitled "Flashback 9/11: As It Happened" by Fox News Network re 232 Declaration in Support of Motion in Limine and Request for Judicial Notice by John Jessen, James Elmer Mitchell

Type of application required to view or listen to digital media: Windows Media Player or other.WMV compatible media player

08/02/2017 08/02/2017 08/02/2017 08/03/2017

(Tompkins, Christopher) (Entered: 08/02/2017)
Remark − Exhibits re 233 received in Clerk's Office via Federal Express, along with two DVD's. One DVD delivered to Senior Judge Justin L. Quackenbush. (SK, Case Administrator) (Entered: 08/02/2017)
234 MOTION in Limine by All Plaintiffs. Motion Hearing set for 08/21/2017 at 10:00 AM Spokane Courtroom 903 before Senior Judge Justin L. Quackenbush. (Lustberg, Lawrence) (Entered: 08/02/2017)
235 DECLARATION by Daniel J. McGrady in Support re 234 MOTION in Limine filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(McGrady, Daniel) (Entered: 08/02/2017)
236 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motions Hearing. Proceedings held on 7/28/2017 in Spokane, WA, before Judge Justin L. Quackenbush. Page Numbers: 1 − 101

Parties have seven (7) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

Case: 2:15-cv-00286-JLQ As of: 03/28/2019 01:14 PM PDT 24 of 25

Information regarding the policy can be found on the court website at www.waed.uscourts.gov/sites/default/files/transcript_policy_notice_20130215.pdf.

To purchase a copy of the transcript contact Court Reporter/Transcriber Ronelle Corbey at 509−458−5283 or Ronelle_Corbey@waed.uscourts.gov

08/03/2017
08/04/2017 08/07/2017 08/08/2017 08/08/2017 08/08/2017 08/08/2017 08/08/2017 08/08/2017 08/08/2017 08/08/2017 08/09/2017 08/09/2017 08/10/2017 08/10/2017 08/10/2017 08/10/2017

. Redaction Request due 8/24/2017. Redacted Transcript Deadline set for 9/5/2017. Release of Transcript Restriction set for 11/1/2017. (Corbey, Ronelle) (Entered: 08/03/2017)
237 APPLICATION WITH EXHIBIT FOR AMICUS CURIE. Filed by Stan J. Caterbone, Pro Se litigant. (Attachments: # 1 Proposed Brief, # 2 DVD File List, # 3 DVDs)(SK, Case Administrator) − STRICKEN PER ORDER ECF NO. 238 (lam) (Entered: 08/04/2017)
238 ORDER DENYING APPLICATION AND STRIKING FILING Signed by Senior Judge Justin L. Quackenbush. (Application ECF No. 237 is denied and stricken from the record). cc: Mr. Caterbone via US Mail (LAM, ) (Entered: 08/04/2017)
239 MEMORANDUM OPINION RE: MOTIONS FOR SUMMARY JUDGMENT. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 08/07/2017)
240 Proposed Voir Dire by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 08/08/2017)
241 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING. Media shall pick up their Badge at the Office of the Clerk. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 08/08/2017)
242 MEDIA ORDER Signed by Senior Judge Justin L. Quackenbush. (Attachments: # 1 General Order 13−113−1)(LAM, ) (Entered: 08/08/2017)
243 ORDER RE: STIPULATIONS, CONSENT MOTION, MOTION TO SEAL, AND PRETRIAL CONFERENCE. Signed by Senior Judge Justin L. Quackenbush. (SK, Case Administrator) (Entered: 08/08/2017)
244 Sealed Document. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C − 1, # 5 Exhibit C − 3, # 6 Exhibit C − 7, # 7 Text of Proposed Order)(SK, Case Administrator) (Entered: 08/08/2017)
245 Proposed Jury Instructions submitted by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 08/08/2017)
246 Proposed Voir Dire by All Plaintiffs. (Lustberg, Lawrence) (Entered: 08/08/2017)
247 Proposed Jury Instructions submitted by All Plaintiffs. (Lustberg, Lawrence) (Entered: 08/08/2017)
248 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING Media shall pick up their Badge at the Office of the Clerk. Signed by Senior Judge Justin L. Quackenbush. (JW, Operations Clk) (Entered: 08/09/2017)
249 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING Media shall pick up their Badge at the Office of the Clerk. Signed by Senior Judge Justin L. Quackenbush. (JW, Operations Clk) (Entered: 08/09/2017)
250 RESPONSE to Motion re 234 MOTION in Limine of All Plaintiffs filed by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 08/10/2017)
251 DECLARATION by Jeffrey N. Rosenthal in Opposition re 234 MOTION in Limine by All Plaintiffs filed by John Jessen, James Elmer Mitchell. (Attachments: # 1 Exhibit)(Tompkins, Christopher) (Entered: 08/10/2017)
252 Motion to Seal by John Jessen, James Elmer Mitchell. (Tompkins, Christopher) (Entered: 08/10/2017)
254 MEMORANDUM in Opposition re 231 MOTION in Limine and Request for Judicial Notice filed by All Plaintiffs. (Ladin, Dror) (Entered: 08/10/2017)

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08/10/2017 08/11/2017 08/14/2017 08/16/2017 08/17/2017 08/17/2017
08/17/2017

255 DECLARATION by Dror Ladin in Opposition re 231 MOTION in Limine and Request for Judicial Notice filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ladin, Dror) (Entered: 08/10/2017)
256 ORDER RE: LISTS OF TRIAL WITNESSES. Signed by Senior Judge Justin L. Quackenbush. (LAM, ) (Entered: 08/11/2017)
257 ORDER REGARDING REQUEST FOR LIVE MEDIA BLOGGING Media shall pick up their Badge at the Office of the Clerk. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 08/14/2017)
258 MOTION for Reconsideration of 238 Order Dated August 4, 2017 Striking Amicus Curiae Brief. (Attachments: # 1 Non−scannable Exhibit CD, # 2 Transmittal Envelope)(SK, Case Administrator) (Entered: 08/16/2017)
259 STIPULATION of Dismissal With Prejudice by All Plaintiffs. (Lustberg, Lawrence) (Entered: 08/17/2017)
260 ORDER DIRECTING ENTRY OF JUDGMENT AND CLOSING FILE. Stipulation of Dismissal with Prejudice has been entered by the parties. Complaint and claims therein are DISMISSED WITH PREJUDICE. All hearings are STRICKEN. All pending Motions are denied as Moot. File is closed. Signed by Senior Judge Justin L. Quackenbush. (RG, Ops Supervisor) (Entered: 08/17/2017)
261 JUDGMENT IN A CIVIL ACTION. Stipulation of Dismissal Filed. Complaint and claims are DISMISSED WITH PREJUDICE. (RG, Ops Supervisor) (Entered: 08/17/2017)