Salim et al v. Mitchell et al, No. 2:2015cv00286 - Document 40 (E.D. Wash. 2016)
Court Description: MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS Signed by Senior Judge Justin L. Quackenbush. (LAM, )
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Salim et al v. Mitchell et al Doc. 40 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 SULEIMAN ABDULLAH SALIM, et al., ) ) ) No. CV-15-0286-JLQ Plaintiffs, ) ) MEMORANDUM OPINION ) AND ORDER DENYING vs. ) MOTION TO DISMISS ) ) JAMES E. MITCHELL and JOHN ) JESSEN, ) ) Defendants. ) ___________________________________ ) BEFORE THE COURT is Defendants’ Motion to Dismiss (ECF No. 27), which seeks dismissal of the action with prejudice. Response and Reply briefs have been filed and considered. Oral argument was held on April 22, 2016. James Smith, Henry Schuelke, III, and Christopher Tompkins appeared for Defendants James Mitchell and John Jessen, with Mr. Smith taking the lead on argument. Hina Shamsi, La Rond Baker, Steven Watt, and Dror Ladin appeared for Plaintiffs Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Obaid Ullah, with Mr. Ladin taking the lead on argument. The court issued its oral ruling denying the Motion to Dismiss. This Opinion memorializes and supplements the court’s oral ruling. I. Introduction and Factual Background The Complaint in this matter alleges Plaintiffs Suleiman Abdullah Salim (“Salim”), Mohamed Ahmed Ben Soud (“Soud”), and Obaid Ullah (“Ullah”)1(collectively herein 24 25 1 26 27 28 Ullah is the personal representative of the Estate of Gul Rahman who allegedly “died as a result of hypothermia caused by his exposure to extreme cold, exacerbated by dehydration, lack of food, and his immobility in a stress position.” (Complaint ¶ 3). ORDER - 1 Dockets.Justia.com 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.). 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 28 The conditions of his The allegations of ongoing torture are also pled with great specificity. (Complaint 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 2 28 COBALT is alleged to be a CIA prison in Afghanistan. (Complaint ¶ 9). 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). 7 psychologically from the tortures he endured” while in the custody of the U.S. 8 Government. (Id. at ¶ 154). 9 Mr. Soud alleges he “continues to suffer both physically and 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). 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”. The paper allegedly proposed 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). 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). Plaintiffs allege that “together 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. 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 28 The prohibition is clear and Defendants further argue the remaining four Baker factors support this court 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 28 The court does not find, based on the current record, that the Baker factors require 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 18 contracts they executed with the CIA in the U.S.; and - 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. 27 allegations are sufficient to overcome the presumption against extraterritorial application 28 ORDER - 16 Plaintiffs’ 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: 24 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 interest justifying application of the ATS in light of the statute’s basic purposes–in 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 our courts should turn a blind eye to the plight of victims in that “handful of 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 20 21 22 23 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 2 3 4 no later than May 23, 2016. IT IS SO ORDERED. The Clerk shall enter this Order and furnish copies to counsel. Dated this 28th day of April, 2016. s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER - 19
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