The jurisdictional and procedural barriers are high for plaintiffs seeking to hold individuals liable for post-9/11 U.S. counterterrorism programs. But a torture suit brought by alien plaintiffs against two American CIA contractors seems likely to reach a trial on the merits after surviving a second motion to dismiss last Friday. Judge Justin Quackenbush, a senior judge in the Eastern District of Washington, held that the plaintiffs’ suit is not barred by the Military Commissions Act (MCA), a statute that divests courts of jurisdiction to hear claims relating to the detention of foreign enemy combatants.
The ACLU filed this civil action in 2015 on behalf of three former detainees, one of whom died in CIA custody (see our earlier case coverage here). According to the complaint, Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Gul Rahman (deceased) were subjected to an “experimental torture program” that was “designed, implemented, and personally administered” by the two defendants, psychologists hired as CIA contractors. The plaintiffs seek relief under the Alien Tort Statute (ATS), which gives district courts jurisdiction over claims by non-U.S. persons for torts “committed in violation of the laws of nations.” Specifically, the plaintiffs allege that the psychologists’ actions constituted torture, non-consensual human experimentation, and war crimes, and they seek compensatory and punitive damages. The case is currently in discovery, and the trial is scheduled to begin in June.
The defendants filed a motion to dismiss late last year, arguing that the court lacked jurisdiction under the MCA. After the Supreme Court’s decision in Boumediene v. Bush, courts may hear habeas petitions from foreign detainees, but the Ninth Circuit has held that other claims are still barred under 28 U.S.C. § 2241(e)(2). This provision only applies, however, to actions “against the United States or its agents” where the detainee at issue was “determined by the United States to have been properly detained as an enemy combatant.” In other words, the MCA bars the plaintiffs’ action only if the psychologists were agents of the United States and there is evidence that the United States made a determination that the plaintiffs were enemy combatants.
Of course, the parties disputed these two points. Defendants James Mitchell and John “Bruce” Jessen maintained that, as government contractors, they were agents of the United States for purposes of the statute. Starting in 2001, Mitchell and Jessen advised the CIA on interrogation techniques they developed, in part based on their experience working as psychologists training U.S. military personnel to resist abusive interrogations. Eventually, the two formed a company that was paid a total of $81 million by the U.S. government for counterterrorism activities.
Plaintiffs argued in response that § 2241(e)(2) does not apply to independent contractors, citing other statutes where Congress specifically included government contractors in addition to agents. Judge Quackenbush didn’t find the question of explicit statutory inclusion dispositive, but held that Mitchell and Jessen hadn’t carried their burden of showing that they were in fact “agents” of the United States, at least at based on the record submitted with the motion.
If the defendants were not agents, the MCA poses no bar to suit, but for good measure the court went on to address whether each of the three plaintiffs was determined “to have been properly detained as an enemy combatant or is awaiting such determination,” as required by § 2241(e)(2). The plaintiffs argued that only a determination by a military tribunal like a Combatant Status Review Tribunal (CRST) satisfies this requirement, while the defendants asserted that other evidence of a determination—like a reference in a government memo—should suffice. The court did not reach a holding on what is required but decided that references to Ben Soud as a “probable member of Libyan Islamic Fighting Group” in government documents was not enough. Rahman, who died in CIA custody less than one month after his capture in Pakistan, was described as an enemy combatant in a government cable only after his death, and the court was not convinced that he was “awaiting” a formal determination.
Salim appears to have been designated a “high level enemy combatant” by an Enemy Combatant Review Board in 2007 but was declared “no longer an enemy combatant” a year later. Given these conflicting determinations, the court declined to decide definitively whether the determination requirement was satisfied. However, Judge Quackenbush seemed inclined to apply the Fourth Circuit’s two-step determination test from the now vacated case of al-Marri v. Wright, which requires “1) an initial decision to detain, followed by 2) a determination by the United States that the initial detention was proper.” According to Judge Quackenbush, under this test, a later decision that the detention was improper would reverse the earlier decision, and the determination requirement would not be met.
If Salim v. Mitchell makes it to trial this June, it will likely be a surprise for followers of CIA torture litigation. As others have observed, these cases are typically thrown out on any number of grounds. Yet in their first motion to dismiss, the defendants proved unsuccessful in arguing (1) that the claims were non-justiciable because of the Political Question Doctrine, (2) that they were entitled to derivative sovereign immunity, and (3) that the ATS did not confer jurisdiction. Judge Quackenbush denied that first motion, noting that other courts had not declined to review similar cases, despite relating to difficult questions of war and foreign policy. And, though contractors may be immune if they act under the direction of the government with limited discretion, the specific facts alleged in this case prevented that conclusion here, at least at the motion-to-dismiss stage.
Finally, the court decided that it had jurisdiction under the ATS, even after the Supreme Court significantly narrowed the statute’s reach in Kiobel v. Royal Dutch Petroleum. Despite the presumption against extraterritorial application of the statute, claims can still be brought where the claims “touch and concern” the United States. Unlike Kiobel, this is not an “f-cubed” case: the defendants are U.S. citizens, and some of the conduct arguably occurred domestically. For Judge Quackenbush, it was enough that the company Mitchell and Jessen operated to assist the CIA with interrogation was located in Spokane, Washington, and that they likely executed contracts and worked on the interrogation program within the United States.
One major stumbling block for this type of litigation is the state secrets privilege, which the government has successful invoked to dismiss lawsuits when holding proceedings on the issues would harm national security. But the Obama administration chose not to invoke this privilege here, likely because the enhanced interrogation program, as well as Mitchell and Jessen’s role in it, was described in detail in the publicly released Executive Summary of the CIA’s Detention and Interrogation Program (SSCI Report). Additional information, including a detailed report on Rahman’s death, was released in 2016 in response to a FOIA lawsuit.
In a twist, here it is the plaintiffs’ lawyers who disclaim any need for information not already in the public record, and it is the defendants who seek access to government records to prepare their defense. Judge Quackenbush has ordered several high-ranking CIA officials to sit for depositions, including John Rizzo and Jose Rodriguez, and denied a motion by the U.S. for a protective order.
The United States is present in the suit to protect the interests of the CIA and the DOJ, but so far its involvement has been limited to contesting the scope of discovery. In a strange footnote to the story of Trump’s controversial executive order on immigration, the 90-day entry ban for people from Libya will almost certainly prevent Ben Soud, a Libyan, from testifying at trial. According to a joint report filed on January 9, both Salim and Ben Soud were having difficulty securing visas, though Ben Soud’s request to the U.S. Citizenship and Immigration Services for parole had not been declined outright. The two plaintiffs are scheduled to be deposed this week in Dominica.