District court finds Alien Tort Statute applicable to acts of torture committed extraterritorially where other relevant conduct touched or concerned the United States
Salim v. Mitchell, No. 2:15-cv-286 (E.D. Wash. Aug. 7, 2017) [click for opinion]
Plaintiffs Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Gul Rahman are former CIA detainees subject to Bush-era enhanced interrogation techniques. Each Plaintiff alleges prolonged periods of physical and psychological abuse involving starvation, sleep deprivation, confinement in painful positions, forced nakedness, and beatings. Salim was detained in Somalia in 2003, and transferred to Afghanistan where he was held for more than five years. Soud was detained in Pakistan in 2003 and held in Afghanistan until he was transferred to Libya in 2004, where he was further imprisoned by the Libyan government until 2011. Rahman was detained in Pakistan in October 2002 and transferred to Afghanistan, where in November 2002 he died of hypothermia while chained, partially nude, in a stress position.
Defendants James Mitchell and John Jessen are psychologists who advised the CIA on interrogation techniques and were principals of the consulting firm Mitchell, Jessen, and Associates that provided interrogation-related services to the government.
Plaintiffs, relying on the declassified Senate torture report, allege that Defendants played a key role in convincing the CIA to adopt torture as a matter of policy. Plaintiffs produced evidence showing that Mitchell, Jessen, and their firm were paid at least $70 million under various government contracts. Plaintiffs allege that Mitchell and Jessen personally oversaw the torture of detainees, including Rahman. Plaintiffs brought suit against Defendants under the Alien Tort Statute (“ATS“). Defendants moved for summary judgment, and Plaintiffs moved for partial summary judgment. The court denied both motions.
In denying Defendants’ motion for summary judgement, the court considered whether it had jurisdiction to apply the ATS to acts of torture committed extraterritorially. The court recognized a Circuit split on the issue—some Circuits require that the specific conduct constituting a violation of the ATS occur within United States territory (the “focus test”), while the Ninth Circuit and other Circuits consider the extent to which conduct related to the claims “touches or concerns” the United States. The court applied the Ninth Circuit standard, rejecting Defendants’ argument that the recent Supreme Court decision in RJR Nabisco v. European Community compels the adoption of the focus test.
Accordingly, the court found jurisdiction based on evidence showing that Defendants were U.S. citizens, Defendants entered into relevant government contracts in the United States, and Defendants directly consulted or oversaw the provision of consulting services from their company’s domestic offices, domestic CIA facilities, and CIA facilities abroad. The court further held, in the alternative, that the focus test would be met if it did apply, because Plaintiffs alleged and provided evidence that Defendants’ domestic conduct constituted aiding and abetting another’s violation of the ATS. The court also considered whether it had jurisdiction under the political question doctrine. The court found that it did have jurisdiction, in light of numerous other court cases addressing the legality of Bush-era interrogation policies.
The court further considered whether Defendants were entitled to derivative sovereign immunity. In rejecting sovereign immunity, the court found that Defendants had a significant role in designing and implementing the CIA’s torture programs and were not merely acting at the direction or control of the CIA. Finally, in denying Plaintiffs’ motion for partial summary judgment, the court held that the extensive factual record before the court presented several disputed material facts.
Shortly after the court’s ruling, the parties announced a confidential settlement.