Salim v. Mitchell

• Decision Date: 07 August 2017
• Docket Number: No. CV–15–0286–JLQ,CV–15–0286–JLQ
• Citation: 268 F.Supp.3d 1132
• Parties: Suleiman Abdullah SALIM, et al., Plaintiffs, v. James E. MITCHELL and John Jessen, Defendants.
• Court: U.S. District Court — District of Washington

268 F.Supp.3d 1132

Suleiman Abdullah SALIM, et al., Plaintiffs,
v.
James E. MITCHELL and John Jessen, Defendants.

No. CV–15–0286–JLQ

United States District Court, E.D. Washington.

Signed August 7, 2017

Anthony P. DiCaprio, Pro Hac Vice, Law Office of Anthony DiCaprio, Rye, NY, Avram D. Frey, Pro Hac Vice, Daniel J. McGrady, Pro Hac Vice, Kate E. Janukowicz, Pro Hac Vice, Lawrence S. Lustberg, Pro Hac Vice, Gibbons PC, Newark, NJ, Dror Ladin, Pro Hac Vice, Jameel Jaffer, Pro Hac Vice, Steven Watt, Hina Shamsi, New York, NY, Paul L. Hoffman, Pro Hac Vice, Schonbrun DeSimone Seplow Harris & Hoffman LLP, Venice, CA, Emily Chiang, ACLU of Washington, Seattle, WA, Jeffry Keith Finer, Finer & Winn PS, Spokane, WA, for Plaintiffs.

Brian S. Paszamant, Pro Hac Vice, Henry F. Schuelke, III, Pro Hac Vice, Jeffrey N. Rosenthal, Pro Hac Vice, James T. Smith, Pro Hac Vice, Blank Rome LLP, Philadelphia, PA, Christopher W. Tompkins, Seattle, WA, for defendants.

MEMORANDUM OPINION RE: MOTIONS FOR SUMMARY JUDGMENT

JUSTIN L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE

BEFORE THE COURT are Defendants' Motion for Summary Judgment (ECF No. 169), Plaintiffs' Motion for Partial Summary Judgment (ECF No. 178), and Defendants' Motion to Exclude (ECF No. 198). Response and Reply briefs have been filed and considered. The parties have submitted a voluminous record of over 4,000 pages of evidentiary exhibits. The court heard oral argument on the Motions on July 28, 2017. James Smith, Henry Schuelke, III, Brian Paszamant, and Christopher Tompkins appeared for Defendants James Mitchell and John Jessen. Hina Shamsi, Steven Watt, Dror Ladin, Lawrence Lustberg, and Jeffry Finer appeared for Plaintiffs Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Obaid Ullah. The court issued its preliminary oral ruling. This Opinion memorializes and supplements the court's oral ruling.

I. Introduction and Factual Allegations from Complaint

The Complaint in this matter alleges Plaintiffs Suleiman Abdullah Salim ("Salim"),

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Mohamed Ahmed Ben Soud ("Soud"), and Gul Rahman ("Rahman")¹ (collectively herein Plaintiffs) were the victims of psychological and physical torture. Plaintiffs are all foreign citizens and bring these claims pursuant to the Alien Tort Statute, 28 U.S.C. § 1350 (hereafter "ATS"). Plaintiffs allege the Defendants, James Mitchell and John Jessen, "are psychologists who designed, implemented, and personally administered an experimental torture program for the U.S. Central Intelligence Agency." (Complaint, ¶ 1).

A. Allegations of Mr. Salim

Plaintiff Salim is a Tanzanian citizen who was captured by the CIA and Kenyan Security Forces in Somalia in March, 2003, where he was working as a trader and fisherman. He was transferred to official U.S. Government sites in Afghanistan and held there for a total of sixteen months. In July 2004, he was transferred to Bagram Air Force Base in Afghanistan and held in custody there for an additional four years, until being released in August 2008. (Complaint ¶ 9). Mr. Salim alleges he was subjected to numerous coercive methods, including: prolonged sleep deprivation, walling, stress positions, facial slaps, abdominal slaps, dietary manipulation, facial holds, and cramped confinement. (Id. at ¶ 74). He also claims he was subjected to prolonged nudity and "water dousing that approximated waterboarding."(Id. ). The conditions of his confinement are pled with great specificity, including that he was kept in a dark, frigid cell, "continually chained to the wall" in a stress position in which the "only position he could adopt was a squatting position that very quickly became uncomfortable and extremely painful" and was fed a meager meal of "a small chunk of bread in a watery broth—only once every other day." (Id. at ¶ 79–82).

The allegations of interrogation methods are pled with great detail. (Complaint ¶¶ 71–116). By way of brief example, the following: Mr. Salim alleges being stripped naked and then placed, cuffed and shackled on the center of a large plastic sheet where, he alleges, he was repeatedly doused with ice-cold water and kicked and slapped in the stomach and face. After 20 to 30 minutes of dousing, he was then rolled up in the plastic sheet and "left to shiver violently in the cold for some 10 or 15 minutes." (Id. at ¶ 88). He claims he was forced naked into "a small wooden box, measuring about three square feet", which was locked with a padlock. Inside, the box smelled "rancid" and he "vomited in pain and fear" while locked inside the box. (Id. at ¶ 91–92).

Mr. Salim claims after two or three weeks of these "aggressive" methods he was assessed by his interrogators to be "broken" and "cooperative." (Id. at ¶ 104). Mr. Salim occasionally met with people he believed to be health care providers and received treatment. He was given a polygraph test. (Id. at ¶ 105). He claims shortly thereafter he was given "three very painful injections in his arm", against his will. He states he does not know what happened after his face went numb and he fell asleep/lost consciousness. (Id. at ¶ 106). After some four or five weeks in custody, he alleges he attempted to kill himself by taking pain pills. (Id. at ¶ 107).

Shortly after the suicide attempt, Mr. Salim was transferred by CIA personnel to another site in Afghanistan he states was known as the "Salt Pit" and remained there for 14 months, often in solitary confinement. (Id. at ¶ 109). Thereafter he was transferred to Bagram Air Force Base,

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where he was detained for four years, in a small cage in a "hangar-type building" with constant illumination. He was never allowed outside. (Id. at ¶ 111). After being released Mr. Salim contends he continues to suffer repercussions from the torture: debilitating pain in his jaw and teeth; pain in his back, shoulders, and legs; frequent nightmares/flashbacks; and other symptoms of post-traumatic stress disorder (PTSD). (Id. at ¶ 115–116).

B. Allegations of Mr. Soud

Mr. Soud is a Libyan citizen, who allegedly fled Libya fearing prosecution from the Gadaffi regime and went to Pakistan, where in 2003 his home was raided by U.S. and Pakistani forces. (Complaint at ¶ 117–18). He states during the raid he was shot which shattered a bone in his left leg. He claims he was detained, interrogated, and abused for two weeks after the raid by Pakistani and U.S. officials. (Id. at ¶ 119). He denied any knowledge of terrorism plans against the U.S. or any connection to al–Qa'ida. He alleges he was then told he was not being cooperative and transported to COBALT² . He alleges he was subjected to several of the same interrogation procedures as Mr. Salim, including: prolonged sleep deprivation, stress positions, walling, being slapped, dietary manipulation, facial holds, cramped confinement, and a form of waterboarding. (Id. at ¶ 121). Mr. Soud claims that after he arrived at COBALT he was told "he was a prisoner of the CIA, that human rights ended on September 11, and that no laws applied in prison." (Id. at ¶ 124).

At COBALT, Mr. Soud was "kept naked for more than a month" and he was not allowed to wash for five months. (Id. at ¶ 127–28). Mr. Soud alleges he was given meager meals of poor nutritional quality and during his year-long detention at COBALT his weight fell from 187 to 139 pounds. (Id. at ¶ 129). He additionally claims to have been subjected to prolonged sleep deprivation which "drove him close to madness". (Id. at ¶ 131). He alleges about two weeks after he arrived at COBALT the "torture increased in severity" and moved into an "aggressive phase" that lasted four to five weeks. (Id. at ¶ 133–34). He alleges he was subjected to "walling" where a foam collar was placed around his neck, and he was then thrown into a wooden wall, while also being slapped in the face and stomach. (Id. at ¶ 137–38). Similar to Mr. Salim, he describes being doused in ice water while on a plastic sheet. These methods of interrogation allegedly lasted for approximately two weeks, until another interrogation team took over.

Mr. Soud alleges the new interrogation team increased the severity of the physical beatings. (Id. at ¶ 142). He states he was also subjected to two different confinement boxes. After two to three weeks, the second interrogation team found Mr. Soud to be "broken" and "cooperative" and stopped the aggressive interrogation tactics. Mr. Soud was held by the U.S. Government, often in solitary confinement, until August 22, 2004 when he was turned over to the Libyan Government. In Libya, Mr. Soud was sentenced to life imprisonment, but was released in 2011 after the overthrow of the Gaddafi regime. (Id. at ¶ 153). Mr. Soud alleges he "continues to suffer both physically and psychologically from the tortures he endured" while in the custody of the U.S. Government. (Id. at ¶ 154).

C. Allegations Concerning Gul Rahman

Gul Rahman was born in Afghanistan. In October 2002, Mr. Rahman was living in Pakistan where we was detained by a joint

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U.S./Pakistani operation. Plaintiff alleges that in November 2002, "Defendant Jessen conducted a psychological evaluation of Mr. Rahman at COBALT."...