Case 2:15-cv-00286-JLQ Document 28 Filed 02/11/16
1 La Rond Baker, WSBA No. 43610
2 [email protected] AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 3 901 Fifth Avenue, Suite 630
4 Seattle, WA 98164 Phone: 206-624-2184 5
6 Dror Ladin (admitted pro hac vice) Steven M. Watt (admitted pro hac vice) 7 Hina Shamsi (admitted pro hac vice)
8 Jameel Jaffer (admitted pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 9 125 Broad Street, 18th Floor 10 New York, New York 10004
11 Paul Hoffman (admitted pro hac vice) 12 Schonbrun Seplow Harris & Hoffman, LLP 723 Ocean Front Walk, Suite 100 13 Venice, CA 90291 14 Attorneys for Plaintiffs 15
16 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON 17
18 SULEIMAN ABDULLAH SALIM, No. 2:15-CV-286-JLQ MOHAMED AHMED BEN SOUD, OBAID 19 ULLAH (AS PERSONAL PLAINTIFFS’ 20 REPRESENTATIVE OF GUL RAHMAN), MEMORANDUM IN
21 OPPOSITION TO Plaintiffs, DEFENDANTS’ MOTION 22 TO DISMISS v. 23
Note On Motion Calendar: 24 JAMES ELMER MITCHELL and JOHN
“BRUCE” JESSEN 25 April 22, 2016, 9:00 a.m., at
Spokane, Washington 26 Defendants.
27
AMERICAN CIVIL LIBERTIES MEMORANDUM OPPOSING UNION OF WASHINGTON FOUNDATION MOTION TO DISMISS 901 Fifth Ave, Suite 630 Seattle, WA 98164 (No. 2:15-CV-286-JLQ) – Page | i (206) 624-2184
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1 TABLE OF CONTENTS
2 INTRODUCTION ...... 1 3
4 LEGAL STANDARD ...... 2
5 ARGUMENT ...... 2
6 I. PLAINTIFFS’ CLAIMS ARE JUSTICIABLE...... 2 7 A. Prisoner abuse and torture are not unreviewable 8 political decisions...... 3
9 B. Plaintiffs’ claims are judicially manageable...... 7 10 II. DEFENDANTS ARE NOT ENTITLED TO IMMUNITY...... 10 11
12 A. Defendants are not entitled to Yearsley immunity...... 13
13 B. Defendants are not entitled to Filarsky immunity...... 16
14 III. THE COURT HAS JURISDICTION OVER PLAINTIFFS’ 15 ATS CLAIMS...... 20
16 A. Plaintiffs’ claims sufficiently touch and concern the 17 United States to establish jurisdiction...... 20
18 B. Plaintiffs state valid claims under the ATS...... 24 19 1. Plaintiffs have stated claims for torture under 20 the ATS...... 25 21 2. Plaintiffs have stated claims for non-consensual 22 human experimentation under the ATS...... 27
23 IV. DEFENDANTS’ ATTEMPT TO DISMISS MR. RAHMAN’S 24 CLAIMS IS GROUNDLESS...... 30
25 CONCLUSION ...... 30 26 CERTIFICATE OF SERVICE ...... 32 27
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1 TABLE OF AUTHORITIES
2 Cases 3 Abdullahi v. Pfizer, 4 562 F.3d 163 (2d Cir. 2009) ...... 27 5 Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 6 686 F.3d 965 (9th Cir. 2012) ...... 5 7 Al Shimari v. CACI Premier Tech., Inc., 8 758 F.3d 516 (4th Cir. 2014) ...... 21, 22, 23
9 Al Shimari v. CACI, 10 2012 WL 123570 (C.A.4) ...... 12
11 Ali v. Rumsfeld, 12 649 F.3d 762 (D.C. Cir. 2011) ...... 11
13 Am. Civil Liberties Union v. Clapper, 14 785 F.3d 787 (2d Cir. 2015) ...... 5
15 Avendano-Hernandez v. Lynch, 16 800 F.3d 1072 (9th Cir. 2015) ...... 9
17 Baker v. Carr,
18 369 U.S. 186 (1962) ...... 3, 7
19 Boumediene v. Bush,
20 553 U.S. 723 (2008) ...... 4
21 Bowoto v. Chevron Corp., 557 F.Supp.2d 1080 (N.D. Cal. 2008) ...... 9 22
23 Cabalce v. Thomas E. Blanchard & Associates, Inc., 797 F.3d 720 (9th Cir. 2015) ...... 16 24
25 Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) ...... 10, 12, 13, 14 26
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1 Corrie v. Caterpillar, Inc.,
2 503 F.3d 974 (9th Cir. 2007) ...... 6
3 Doe I v. Cisco Sys., Inc.,
4 66 F. Supp. 3d 1239 (N.D. Cal. 2014) ...... 24
5 Doe I v. Nestle USA, Inc., 766 F.3d 1013 (9th Cir. 2014) ...... 2, 20 6
7 Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75 (D.D.C. 2014) ...... 21 8
9 Doe v. Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004) ...... 9 10
11 Doe v. Saravia, 348 F. Supp. 2d 1112 (E.D. Cal. 2004) ...... 27 12
13 Filarsky v. Delia, 132 S. Ct. 1657 (2012) ...... 12 14 Gomez v. Campbell-Ewald Co., 15 768 F.3d 871 (9th Cir. 2014) ...... 12, 16, 17 16 Hamdan v. Rumsfeld, 17 548 U.S. 557 (2006) ...... 4 18 Hamdi v. Rumsfeld, 19 542 U.S. 507 (2004) ...... 5
20 Hilao v. Estate of Marcos, 21 103 F.3d 789 (9th Cir. 1996) ...... 25
22 In re Estate of Ferdinand Marcos Human Rights Litig., 23 25 F.3d 1467 (9th Cir. 1994) ...... 8
24 In re Hanford Nuclear Reservation Litig., 25 534 F.3d 986 (9th Cir.2008) ...... 16
26 INS v. Chadha,
27 462 U.S. 919 (1983) ...... 6
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1 Ireland v. United Kingdom,
2 25 Eur. Ct. H.R. (ser. A) (1978) ...... 18, 19
3 Jama v. I.N.S.,
4 22 F.Supp.2d 353 (D.N.J.1998) ...... 9
5 Jensen v. Lane Cty., 222 F.3d 570 (9th Cir. 2000) ...... 17 6
7 Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) ...... 8, 18, 25 8
9 Kaplan v. Cent. Bank of Islamic Republic of Iran, 961 F. Supp. 2d 185 (D.D.C. 2013) ...... 7 10
11 Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) ...... 20, 23 12
13 Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992) ...... 5, 8 14 Lang v. Texas & P. Ry. Co., 15 624 F.2d 1275 (5th Cir. 1980) ...... 30 16 Little v. Barreme, 17 6 U.S. (2 Cranch) 170 (1804) ...... 6, 15 18 Malinowski v. DeLuca, 19 177 F.3d 623 (7th Cir. 1999) ...... 17
20 Mastafa v. Chevron Corp., 21 770 F 3d 170 (2d. Cir. 2014) ...... 22
22 McCullum v. Tepe, 23 693 F.3d 696 (6th Cir. 2012) ...... 17
24 Mujica v. AirScan Inc., 25 771 F.3d 580 (9th Cir. 2014) ...... 20
26 Mwani v. Bin Laden,
27 947 F.Supp.2d 1 (D.D.C. 2013) ...... 23
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1 Padilla v. Yoo,
2 678 F.3d 748 (9th Cir. 2012) ...... 3, 18, 19
3 Rasul v. Bush,
4 542 U.S. 466 (2004) ...... 4
5 Richardson v. McKnight, 521 U.S. 399 (1997) ...... 11, 17 6
7 Saldana v. Occidental Petroleum Corp., 774 F.3d 544 (9th Cir. 2014) ...... 6 8
9 Sexual Minorities Uganda v. Lively, 960 F.Supp.2d 304 (D. Mass. 2013)...... 23 10
11 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ...... 27, 28 12
13 Tachiona v. Mugabe, 216 F.Supp.2d 262 (S.D.N.Y. 2002) ...... 9 14 Tchemkou v. Gonzales, 15 495 F.3d 785 (7th Cir. 2007) ...... 9 16 The Paquete Habana, 17 175 U.S. 677 (1900) ...... 5 18 U.S. ex rel. Ali v. Daniel, Mann, Johnson & Mendenhall, 19 355 F.3d 1140 (9th Cir. 2004) ...... 14
20 U.S. v. Belfast, 21 611 F.3d 783 (11th Cir. 2010) ...... 14
22 United States v. Munoz-Flores, 23 495 U.S. 385 (1990) ...... 8
24 United States v. Stanley, 25 483 U.S. 669 (1987) ...... 19
26 Xuncax v. Gramajo,
27 886 F.Supp. 162 (D. Mass.1995)...... 9
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1 Yearsley v. W.A. Ross Const. Co.,
2 309 U.S. 18 (1940) ...... 12, 14
3 Zivotofsky v. Clinton,
4 132 S. Ct. 1421 (2012) ...... 6, 7, 8
5 Statutes
6 28 U.S.C. § 1350 ...... 7 7 28 U.S.C. § 2671 ...... 11 8
9 28 U.S.C. § 2679 ...... 11
10 Torture Act, 18 U.S.C. § 2340 ...... 7, 14
11 War Crimes Act, 18 U.S.C. § 2441 ...... 7, 14 12 Other Authorities 13
14 Christine Byron, War Crimes and Crimes Against Humanity in the Rome Statute of the International Criminal Court (2009) ...... 29 15
16 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 17 (1988), 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984) ...... 9, 26
18 Convention Relative to the Treatment of Prisoners of War, 19 Aug. 12, 1949, 75 U.N.T.S. 135 ...... 14
20 David Margolis, Memorandum of Decision Regarding the Objections to 21 the Findings of Professional Misconduct in the Office of Professional Responsibility's Report (Jan. 5, 2010) ...... 15 22
23 HCJ 5100/94 Public Committee Against Torture in Israel v. Israel, 53(4) PD 817 [1999] (Isr.) ...... 19 24
25 International Committee of the Red Cross Study on Customary International Humanitarian Law 26 (Jean-Marie Henckaerts & Louise Doswald-Beck, eds., 2009) ...... 29
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1 International Covenant on Civil and Political Rights,
2 Dec. 19, 1966, 999 U.N.T.S. 171 ...... 29
3 M. Cheriff Bassiouni et al., An Appraisal of Human Experimentation in
4 International Law and Practice, 72 J. Crim. L. & Criminology (1981) ..... 29, 30
5 Oona Hathaway et. al., Tortured Reasoning, 52 Va. J. Int’l L. 791 (2012) ...... 26 6
7 Press Release, White House, Press Conference by the President (Aug. 1, 2014) ...... 18 8
9 Report of Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central 10 Intelligence Agency’s Use of “Enhanced Interrogation Techniques”
11 on Suspected Terrorists (2009) ...... 15
12 U.S. Dep’t of State, United States Response to Questionnaire
13 Concerning the Montreux Document Related to the Operations of Private Military and Security Companies During Armed Conflict 14 (Dec. 19, 2013) ...... 24
15 Rules 16 Fed. Rule Civ. P. 9(a) ...... 30 17
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1 INTRODUCTION
2 This case concerns war crimes committed by Defendants James Mitchell 3
4 and Bruce Jessen, two psychologists who designed an experimental torture
5 program aimed at psychologically destroying prisoners through the deliberate and
6 methodical infliction of severe pain and suffering. Defendants helped convince 7
8 the CIA and other government agencies to adopt their methods and, as
9 independent contractors, profited from personally administering, evaluating, and 10 refining the torture of CIA prisoners. 11
12 Plaintiffs Suleiman Abdullah Salim, Mohamed Ben Soud, and Gul Rahman
13 are victims of Defendants’ torture program. After enduring extensive abuse in 14 accordance with Defendants’ protocols—including water torture, excruciating 15
16 stress positions, prolonged standing sleep deprivation, and confinement in coffin-
17 like boxes—Plaintiffs Salim and Ben Soud were released without charge; Mr. 18 Rahman died during his torture. 19
20 Plaintiffs seek accountability from Defendants under the Alien Tort Statute
21 (ATS), through which the First Congress vested federal courts with jurisdiction 22 over tort claims arising from violations of customary international law. In 23
24 response, Defendants ask this Court to replace carefully limited jurisdictional and
25 immunity doctrines with sweeping new rules of impunity, and urge a reading of 26 the ATS that would nullify Congressional intent. Contrary to Defendants’ 27
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1 arguments, however, whether American citizens personally violated the
2 prohibitions against torturing, cruelly treating, and experimenting on prisoners is 3
4 not a nonjusticiable political question. Nor are Defendants—independent
5 contractors who profited enormously from their torture program—entitled to
6 blanket immunity. Finally, the ATS provides jurisdiction over Plaintiffs’ claims, 7
8 which are closely connected to the United States and allege violations of
9 universally accepted international norms. Defendants’ arguments are meritless. 10 LEGAL STANDARD 11
12 In considering a motion to dismiss, except where Defendants submit
13 factual evidence attacking jurisdiction, “[a]ll factual allegations in the complaint 14 are accepted as true, and the pleadings construed in the light most favorable to the 15
16 nonmoving party.” Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1018 (9th Cir. 2014)
17 (quotation marks omitted). 18 ARGUMENT 19
20 I. PLAINTIFFS’ CLAIMS ARE JUSTICIABLE.
21 Defendants argue that Plaintiffs’ claims are nonjusticiable because they 22 “are inherently entangled with (and predicated upon) decisions reserved for the 23
24 political branches of the U.S. government.” ECF No. 27 at 1. Their argument
25 boils down to two basic propositions: That prisoner abuse and torture are political 26 decisions reserved for the executive branch, and that no judicially manageable 27
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1 standards exist to adjudicate Plaintiffs’ claims. Defendants misunderstand the
2 political question doctrine, ignore the Supreme Court’s most recent guidance, and 3
4 misread a Ninth Circuit decision that is directly on point.
5 A. Prisoner abuse and torture are not unreviewable political
6 decisions.
7 According to Defendants, decisions about prisoner treatment in wartime are 8 constitutionally committed to the executive branch, ECF No. 27 at 5–6 (citing the 9
10 first factor identified in Baker v. Carr, 369 U.S. 186 (1962)), and any case
11 implicating “U.S. policy on the war against al-Qa’ida” is nonjusticiable, id. at 8– 12 10 (citing the third through sixth Baker factors). These arguments are foreclosed 13
14 by Ninth Circuit and Supreme Court precedent.
15 As a matter of Circuit law, Defendants’ arguments are barred by the very 16 decision they rely on. The Ninth Circuit has already determined, in Padilla v. 17
18 Yoo, that claims arising from U.S. government torture of an alleged “enemy
19 combatant” are justiciable. 678 F.3d 748, 757 (9th Cir. 2012). There, the 20
21 plaintiff’s claims arose from a Presidential order that he be detained and
22 interrogated “as a source of intelligence about personnel and activities of al
23 Qaeda.” Id. at 762 n.8 (quotation marks omitted). The Ninth Circuit did not 24
25 decline jurisdiction; it considered Mr. Padilla’s allegations that he was tortured.
26
27
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1 Yoo makes clear that the subject matter of this suit is well within the judiciary’s
2 purview. 3
4 Defendants argue that “decisions the U.S. government made in response to
5 the threat posed by al-Qa’ida,” are either solely committed to the Executive, ECF
6 No. 27 at 5–6, or are so entangled with “political decisions,” id. at 8–10, as to be 7
8 beyond judicial competence. But if this is true, the Ninth Circuit could not have
9 decided Yoo—yet the court found that case justiciable. Indeed, Plaintiffs’ case for 10 justiciability is even stronger. Unlike the plaintiff in Yoo, there are no allegations 11
12 that Plaintiffs were members of al-Qa’ida or designated “enemy combatants.”
13 See, e.g., ECF No. 1 at 52 (¶ 119). And in any event, a decade of precedent 14 directly contradicts Defendants’ claim that government decisions and policies 15
16 “made in response to the threat posed by al-Qai’ida” are beyond judicial review.
17 Courts have routinely evaluated—and frequently rejected—the government’s 18 decisions in this area. See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008) 19
20 (rejecting effort by political branches to strip federal court jurisdiction over
21 detention of alleged al-Qa’ida fighters at Guantánamo); Hamdan v. Rumsfeld, 548 22 U.S. 557 (2006) (rejecting government decision to deprive alleged al-Qa’ida 23
24 members of Geneva Convention protections and establish unlawful military
25 commissions); Rasul v. Bush, 542 U.S. 466 (2004) (rejecting executive branch 26 effort to deny habeas rights to prisoners alleged to be al Qa’ida members); Al 27
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1 Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965 (9th Cir.
2 2012) (claim arising from government sanction of charity alleged to support al 3
4 Qaida was justiciable); see also Am. Civil Liberties Union v. Clapper, 785 F.3d
5 787 (2d Cir. 2015) (rejecting executive branch decision to create post-9/11
6 surveillance program). 7
8 More generally, both the Ninth Circuit and the Supreme Court have made
9 clear that the political question doctrine does not place every question touching 10 on the Executive’s war and foreign policy decisions beyond the reach of the 11
12 courts—and torturing and experimenting on prisoners is not the type of core
13 policy determination or strategic judgment that the Constitution insulates from 14 judicial review. See Hamdi v. Rumsfeld, 542 U.S. 507, 531, 535–36 (2004) 15
16 (emphasizing distinction between questioning “core strategic matters of
17 warmaking,” and questions involving “individual liberties,” for which the 18 Constitution “most assuredly envisions a role for all three branches”); Koohi v. 19
20 United States, 976 F.2d 1328, 1331-32 (9th Cir. 1992) (“The Supreme Court has
21 made clear that the federal courts are capable of reviewing military decisions”). 22 Indeed, over the course of two centuries, the Supreme Court has repeatedly found 23
24 that claims arising from the unlawful treatment of foreign nationals in wartime
25 are justiciable. See, e.g., The Paquete Habana, 175 U.S. 677, 708 (1900) 26 (ordering restitution to enemy noncitizen for seizure of his fishing boats during 27
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1 Spanish-American war because “an established rule of international law”
2 exempted civilian vessels from capture as war prizes); Little v. Barreme, 6 U.S. (2 3
4 Cranch) 170, 179 (1804) (U.S. Navy Captain liable for illegally seizing a ship
5 during wartime even though the Captain had acted on a Presidential order); cf.
6 Saldana v. Occidental Petroleum Corp., 774 F.3d 544, 553 (9th Cir. 2014) 7
8 (distinguishing between torts arising from “the on-the-ground execution of
9 military-related operations,” which are justiciable, and the “underlying foreign- 10 policy choices such as the very decision to engage in military activity,” which are 11
12 not); Corrie v. Caterpillar, Inc., 503 F.3d 974, 982 (9th Cir. 2007) (decisions on
13 allocation of foreign aid are constitutionally committed to the political branches). 14 Defendants’ argument is also impossible to square with the Supreme 15
16 Court’s recent decision in Zivotofsky v. Clinton. In that case, which involved a
17 plaintiff seeking to enforce Congress’s decision that Americans born in Jerusalem 18 be allowed to have “Israel” recorded as their birthplace on passports, the Court 19
20 made clear that the political question doctrine is a “narrow exception” to the
21 judiciary’s “duty” to decide cases. Zivotofsky, 132 S. Ct. 1421, 1427–28 (2012). 22 Although the dispute was at the heart of a foreign relations controversy, the Court 23
24 found the case justiciable, stating that “courts cannot avoid their responsibility
25 merely ‘because the issues have political implications.’” Id. at 1428 (quoting INS 26 v. Chadha, 462 U.S. 919, 943 (1983)). 27
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1 Zivotofsky teaches that political question dismissals are particularly
2 inappropriate when plaintiffs seek to give effect to Congressional enactments. See 3
4 id. at 1427 (“[t]he existence of a statutory right. . . is certainly relevant to the
5 Judiciary’s power to decide” a claim). Of course, this is what Plaintiffs ask the
6 Court to do here. Congress enacted the ATS to confer jurisdiction over tort claims 7
8 based on violations of the law of nations, 28 U.S.C. § 1350, and it has repeatedly
9 enacted laws prohibiting the conduct Plaintiffs allege, see, e.g., War Crimes Act, 10 18 U.S.C. § 2441; Torture Act, 18 U.S.C. § 2340. As in Zivotofsky, here “the 11
12 federal courts are not being asked to supplant a foreign policy decision of the
13 political branches with the courts’ own unmoored determination of what United 14 States policy . . . should be.” Id. at 1427. Instead, Plaintiffs ask this Court to 15
16 enforce legal prohibitions through a vehicle that Congress has created for exactly
17 this purpose. This is a “familiar judicial exercise.” Id.; see also, e.g., Kaplan v. 18 Cent. Bank of Islamic Republic of Iran, 961 F. Supp. 2d 185, 192–93 (D.D.C. 19
20 2013) (courts have responsibility to determine whether particular conduct is
21 actionable in accordance with statute, even if answer implicates foreign policy). 22 B. Plaintiffs’ claims are judicially manageable. 23
24 Defendants similarly miss the mark in arguing that no “judicially
25 discoverable and manageable standards” exist for resolving Plaintiffs’ claims. 26 ECF No. 27 at 4 (quoting Baker, 369 U.S. at 217). As the Ninth Circuit has 27
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1 emphasized, “Damage actions are particularly judicially manageable.” Koohi, 976
2 F.2d at 1331. This is especially true of ATS suits, where “universally recognized 3
4 norms of international law provide judicially discoverable and manageable
5 standards . . . which obviates any need to make initial policy decisions of the kind
6 normally reserved for nonjudicial discretion.” Kadic v. Karadzic, 70 F.3d 232, 7
8 249 (2d Cir. 1995). And while certain claims may require “careful examination of
9 the textual, structural, and historical evidence put forward by the parties,” that 10 task is uniquely assigned to and manageable by the judiciary. Zivotofsky, 132 S. 11
12 Ct. at 1430. In other words, “[t]his is what courts do.” Id; see also United States
13 v. Munoz-Flores, 495 U.S. 385, 396 (1990) (finding claims justiciable and 14 observing that the judiciary is “capable of determining when punishment is ‘cruel 15
16 and unusual,’ when bail is ‘[e]xcessive,’ when searches are ‘unreasonable,’ and
17 when congressional action is ‘necessary and proper’”). 18 Courts have consistently found the types of claims Plaintiffs bring to be 19
20 judicially manageable. Courts in ATS suits evaluate on a case-by-case-basis
21 whether specific conduct violated the torture prohibition. See, e.g., In re Estate of 22 Ferdinand Marcos Human Rights Litig., 25 F.3d 1467 (9th Cir. 1994). Federal 23
24 courts also routinely apply the U.S. regulatory definition of torture, based on
25 article 1 of the Convention Against Torture and Other Cruel, Inhuman, or 26 Degrading Treatment or Punishment, art. 1, P 1, Dec. 10, 1984, S. Treaty Doc. 27
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1 No. 100-20 (1988), 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984) [“CAT”]. Courts
2 apply this definition in hundreds of cases involving immigration relief for 3
4 individuals who seek protection from torture. See, e.g., Avendano-Hernandez v.
5 Lynch, 800 F.3d 1072 (9th Cir. 2015); Tchemkou v. Gonzales, 495 F.3d 785, 795
6 (7th Cir. 2007) (torture definition satisfied by conduct including “a beating and a 7
8 detention under deplorable conditions,” and an “abduction and beating” that “only
9 could be described as the intentional infliction of severe pain or suffering”). 10 Again, Yoo is not to the contrary. Cf. ECF No. 27 at 7 (arguing that Yoo shows 11
12 that torture claims are nonjusticiable). The Ninth Circuit found the torture claim
13 there justiciable, but held that the particular conduct alleged did not clearly 14 constitute torture in 2003. 15
16 Courts also regularly determine whether specific conduct constitutes cruel,
17 inhuman, or degrading treatment. “[N]early every case addressing the question 18 . . . has held that conduct sufficiently egregious may be found to constitute cruel, 19
20 inhuman or degrading treatment under the [ATS].” Doe v. Qi, 349 F. Supp. 2d
21 1258, 1322 (N.D. Cal. 2004); see, e.g., Tachiona v. Mugabe, 216 F.Supp.2d 262, 22 281 (S.D.N.Y. 2002); Jama v. I.N.S., 22 F.Supp.2d 353, 363 (D.N.J.1998); 23
24 Xuncax v. Gramajo, 886 F.Supp. 162, 187 (D. Mass.1995). Defendants’ own
25 authorities confirm that these claims are judicially manageable. For example, in 26 Bowoto v. Chevron Corp., 557 F.Supp.2d 1080, 1094 (N.D. Cal. 2008), aff’d, 621 27
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1 F.3d 1116 (9th Cir. 2010), the court found the standard met where the plaintiffs
2 were beaten, held in inhuman conditions, and subjected to stress positions. 3
4 At bottom, Defendants fundamentally misunderstand the meaning of the
5 “judicially discoverable and manageable standards” requirement. They argue that
6 the prohibition against nonconsensual human experimentation is beyond judicial 7
8 competence because “non-consensual human medical experimentation was
9 substantively addressed only once,” and they find the “parameters” supplied by 10 that case inadequate. ECF No. 27 at 8. But whether a claim is capable of judicial 11
12 review in no way turns on whether that claim has been previously addressed.
13 Defendants’ proposed rule is nonsensical: no new claim would ever be justiciable 14 if courts required prior decisions to establish its “parameters.” Of course, that is 15
16 not the law.
17 II. DEFENDANTS ARE NOT ENTITLED TO IMMUNITY. 18 Defendants maintain that they are entitled to “derivative sovereign 19
20 immunity” because “the CIA has not waived its sovereign immunity.” ECF No.
21 27 at 13. But as the Supreme Court recently affirmed, federal contractors do not 22 “share the Government’s unqualified immunity from liability and litigation.” 23
24 Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). There is “no authority
25 for the notion that private persons performing Government work acquire the 26 Government’s embracive immunity.” Id. Congress has likewise explicitly refused 27
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1 to provide contractors the immunity from tort liability it provided to federal
2 employees under the Federal Tort Claims Act (FTCA). See 28 U.S.C. §§ 2679 3 1 4 (immunizing employees); 2671 (excluding contractors from statute).
5 The law treats independent contractors differently in part because, unlike
6 federal employees, they face a different set of incentives and restrictions. 7
8 Contractors are not subject to civil service laws or administrative discipline, and
9 can reap profits far in excess of any public servant. See Richardson v. McKnight, 10 521 U.S. 399, 411 (1997) (“unlike a government department,” contractor could 11
12 “offset any increased employee liability risk with higher pay or extra benefits”).
13 The potential for profit and the absence of accountability mechanisms poses 14 unique risks. Here, Defendants peddled pseudoscientific and unlawful torture 15
16 methods from which they could—and did—profit enormously. See ECF No. 1 at
17 31 (¶¶ 66–68) (Defendants were personally paid millions of dollars, and the 18 corporation they formed was paid $81 million). And once the details of 19
20 Defendants’ torture program became public, the CIA itself acknowledged
21
22 1 Defendants’ reliance on Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011), 23
24 which addresses FTCA immunity for federal employees, is particularly inapt. See
25 ECF No. 27 at 16–17. Defendant cannot claim for themselves the statutory
26 immunity that Congress denied them. 27
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1 Defendants’ conflict of interest. See ECF No. 1 at 30 (¶ 64). Tort liability
2 mitigates risks and discourages contractor abuses. As a result, contractors are 3
4 routinely held liable where the U.S. and its officials might be immune. See, e.g.,
5 infra 16–17 (citing examples).2
6 In a case denying contractor immunity, the Ninth Circuit has emphasized 7
8 that “immunity must be extended with the utmost care” because of the great costs
9 it imposes on injured persons and “the basic tenet that individuals be held 10 accountable for their wrongful conduct.” Gomez v. Campbell-Ewald Co., 768 11
12 F.3d 871, 882 (9th Cir. 2014), aff’d, 136 S. Ct. 663 (quotation marks omitted).
13 Accordingly, contractors are entitled to immunity only in accordance with narrow 14 doctrines. Specifically, certain contractors may acquire immunity under the 15
16 doctrines of Yearsley v. W.A. Ross Const. Co., 309 U.S. 18, 19 (1940), and
17 Filarsky v. Delia, 132 S. Ct. 1657 (2012). See Gomez, 136 S. Ct. at 673 18 (explaining contractor immunity doctrines). As Plaintiffs explain below, neither 19
20 doctrine shields Defendants because they fail to satisfy the carefully-drawn
21
22 2 Particularly with respect to torture, the government has recognized this 23
24 rationale for treating contractors and federal employees differently. See Brief of
25 United States as Amicus Curiae, Al Shimari v. CACI, 2012 WL 123570 (4th Cir.
26 2012), at *23 n.8 27
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1 requirements imposed by the Ninth Circuit and Supreme Court. Defendants
2 ignore these requirements, relying instead on inapposite out-of-circuit authority to 3
4 cobble together a theory of immunity broad enough to reach their deplorable acts.
5 But the cases Defendants cite are inapposite, contrary to Circuit law, or both.
6 A. Defendants are not entitled to Yearsley immunity. 7
8 Defendants cannot claim immunity under the Yearsley doctrine, which
9 protects the government’s ability to delegate its lawful powers to agents acting on 10 its behalf. Yearsley immunity is available only for conduct that (1) exercises 11
12 validly-delegated and lawful government authority, and (2) is undertaken
13 pursuant to a government plan the contractor had no discretion in devising. 14 Defendants meet neither of these necessary criteria.3 15
16 Under the first prong of the Yearsley doctrine, immunity extends only to
17 contractually-required actions that are “tortious when done by private parties but 18
19 3 20 These requirements are confirmed by the Supreme Court’s recent
21 affirmance of the Ninth Circuit’s denial of contractor immunity in Gomez. 136 S.
22 Ct. at 673. The Court made clear that a Navy contractor could not qualify for 23
24 immunity unless it acted in accordance with lawful government instructions,
25 disagreeing with the Ninth Circuit only “to the extent that” the Ninth Circuit had
26 described Yearsley immunity as limited to public works. Id. at 673 n.7. 27
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1 not wrongful when done by the government.” U.S. ex rel. Ali v. Daniel, Mann,
2 Johnson & Mendenhall, 355 F.3d 1140, 1146 (9th Cir. 2004). As the Supreme 3
4 Court has emphasized, the government cannot by contract immunize unlawful
5 acts because that authority is “‘not validly conferred.’” Gomez, 136 S. Ct. at 673
6 (quoting Yearsley, 309 U.S. at 21); see also Yearsley, 309 U.S. at 22 (conferring 7
8 immunity where contractor was “lawfully acting” on government’s behalf).
9 Because the Executive could not lawfully authorize the torture and abuse of 10 Plaintiffs, Yearsley does not shield Defendants from suit. The conduct Plaintiffs 11
12 allege violates the Convention Against Torture, which Congress made “the law of
13 the land on November 20, 1994.” U.S. v. Belfast, 611 F.3d 783, 802 (11th Cir. 14 2010); see 18 U.S.C. § 2340. Moreover, Defendants’ conduct is explicitly 15
16 prohibited by the Geneva Conventions, which designate “torture” and “inhuman
17 treatment” as “grave breaches” of the Conventions. See, e.g., Convention Relative 18 to the Treatment of Prisoners of War, art. 130, Aug. 12, 1949, 75 U.N.T.S. 135. 19
20 Common article 3 also prohibits subjecting any prisoner to “cruel treatment and
21 torture” and “humiliating and degrading treatment.” Id. art. 3. Congress has 22 criminalized these acts as war crimes. See 18 U.S.C. § 2441. 23
24 Nonetheless, Defendants argue that they are immune because Office of
25 Legal Counsel (“OLC”) memoranda purported to authorize the torture program. 26 ECF No. 27 at 20. But no executive branch official can create immunity by 27
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1 “interpreting” statutes to permit unlawful actions. See Little, 6 U.S. (2 Cranch) at
2 178–79 (President’s orders purporting to interpret an Act of Congress did not 3
4 entitle U.S. Naval officer to immunity from suit for unlawful seizure). As Justice
5 Marshall explained in rejecting a Naval officer’s claim to immunity in Little,
6 executive branch interpretations of law “cannot change the nature of the 7
8 transaction, or legalize an act.” Id. at 179. It is solely for this Court—not OLC—
9 4 to decide whether Defendants acted unlawfully. 10 Defendants also fail to meet the second prong of Yearsley. “[D]erivative 11
12 sovereign immunity, as discussed in Yearsley, is limited to cases in which a
13 contractor ‘had no discretion in the design process and completely followed 14
15 4 16 Notably, the Department of Justice Office of Professional Responsibility
17 determined that the now-withdrawn OLC guidance consisted of “illogical” and
18 “convoluted” justifications for torture. Report of Investigation into the Office of 19
20 Legal Counsel’s Memoranda Concerning Issues Relating to the Central
21 Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected
22 Terrorists (2009) at 230; see also David Margolis, Memorandum of Decision 23
24 Regarding the Objections to the Findings of Professional Misconduct in the
25 Office of Professional Responsibility's Report 67 (Jan. 5, 2010) (withholding
26 discipline but concluding that the torture memos contained “significant flaws”). 27
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1 government specifications.’” Cabalce v. Thomas E. Blanchard & Associates, Inc.,
2 797 F.3d 720, 732 (9th Cir. 2015) (quoting In re Hanford Nuclear Reservation 3
4 Litig., 534 F.3d 986, 1001 (9th Cir.2008)). This requirement ensures that
5 immunity insulates only the government’s lawful discretion, as expressed in
6 specific contracts. Defendants cannot meet this requirement because they 7
8 personally designed the torture program and its individual techniques. ECF No. 1
9 at 26 (¶57); see Cabalce, 797 F.3d at 732 (holding that “[e]ven if we applied 10 Yearsley,” the defendant contractor “would not benefit” because it exercised 11
12 discretion “in devising” tortuous plan).
13 B. Defendants are not entitled to Filarsky immunity. 14 Independent contractors are not automatically entitled to the qualified 15
16 immunity provided to government officials. Under Filarsky, certain contractors,
17 such as attorneys performing traditional law enforcement functions, may receive 18 qualified immunity if their claim is historically grounded in common law and if 19
20 they violated no clearly established rights. Defendants satisfy neither requirement.
21 In Filarsky itself, the Court “afforded immunity only after tracing two 22 hundred years of precedent” supporting qualified immunity for private attorneys 23
24 in law enforcement roles. Gomez, 768 F.3d at 882. Defendants, by contrast,
25 provide no authority for the proposition that psychologists are entitled to 26 immunity at common law in circumstances even remotely comparable to those 27
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1 alleged here. This failure is fatal to their immunity claim. See Jensen v. Lane Cty.,
2 222 F.3d 570, 580 (9th Cir. 2000) (contract psychiatrist “not entitled to qualified 3
4 immunity” where no common law tradition immunized mental health
5 professionals for civil commitment decisions); McCullum v. Tepe, 693 F.3d 696,
6 702 (6th Cir. 2012) (denying immunity to contractor prison psychiatrist based on 7
8 lack of common law tradition); see generally Gomez, 768 F.3d at 882 (qualified
9 immunity unavailable to Naval contractor that failed to show “decades or 10 centuries of common law recognition of the proffered defense”); Richardson, 521 11
12 U.S. at 404 (denying immunity where “[h]istory does not reveal a ‘firmly rooted’
13 tradition of immunity applicable to privately employed prison guards”); 14 Malinowski v. DeLuca, 177 F.3d 623, 627 (7th Cir. 1999) (denying immunity in 15
16 the absence of “any cases or historical evidence to lend support to the notion that
17 private building inspectors have historically enjoyed qualified immunity”). 18 Even if Defendants were able to meet the Filarsky test—which they are 19
20 not—they remain liable because they violated well-established prohibitions
21 against torture, cruel, inhuman, or degrading treatment, nonconsensual 22 experimentation, and war crimes. For over half a century, U.S. officials have 23
24 known that this conduct is forbidden under the Geneva Conventions, and that
25 “[t]he liability of private individuals for committing war crimes has been 26
27
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1 recognized since World War I and was confirmed at Nuremberg after World War
2 II.” Kadic, 70 F.3d at 243. 3
4 No decision supports Defendants’ claim to qualified immunity. Defendants
5 invoke Yoo, but in that case the Ninth Circuit did not evaluate all of the torture
6 methods at issue here. In particular, it did not address Defendants’ use of a water 7
8 torture, prolonged and shackled standing sleep deprivation, and confinement
9 boxes, nor the ways in which Plaintiffs were forced to endure these and other 10 methods in combination. See Yoo, 678 F.3d at 764 (evaluating whether more 11
12 limited set of torture methods clearly constituted torture in 2001–03). As the
13 President himself recognized with respect to several of Defendants’ methods, 14 “any fair minded person would believe [the techniques] were torture.” Press 15
16 Release, White House, Press Conference by the President (Aug. 1, 2014),
17 http://1.usa.gov/1RHhYUx. Plaintiffs’ allegations go far beyond the allegations in 18 Yoo, and clearly constitute torture. 19
20 There was no ambiguity in 2003 about whether Defendants violated the
21 torture ban, but even if there were, the very cases cited by Defendants 22 demonstrate a consensus at that time that their actions violated the well- 23
24 established prohibitions on cruel, inhuman, or degrading treatment and war
25 crimes. Defendants cite Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) 26 (1978), which evaluated the combined use of “(stress positions), hooding, 27
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1 subjection to noise, sleep deprivation, and deprivation of food and drink.” Yoo,
2 678 F.3d at 765. But as the Ninth Circuit recognized, Ireland concluded that the 3
4 combined methods “‘undoubtedly amounted to inhuman and degrading treatment’
5 in violation of Article 3” of the Geneva Conventions. Id. (quoting Ireland).
6 Defendants also cite HCJ 5100/94 Public Committee Against Torture in Israel v. 7
8 Israel, 53(4) PD 817 [1999] (Isr.), which likewise found that “hooding, violent
9 shaking, painful stress positions, exposure to loud music and sleep deprivation” 10 were each illegal, violating either the prohibition against torture or against other 11
12 forms of cruel, inhuman, or degrading treatment. Yoo, 678 F.3d at 765.
13 Defendants were therefore on notice that their methods “undoubtedly amounted 14 to” cruel, inhuman or degrading treatment. 15
16 Defendants were also on notice that nonconsensual experimentation on
17 prisoners has been prohibited since Nuremberg. See United States v. Stanley, 483 18 U.S. 669, 687 (1987) (Brennan, J., concurring in part and dissenting in part) 19
20 (“The medical trials at Nuremberg in 1947 deeply impressed upon the world that
21 experimentation with unknowing human subjects is morally and legally 22 unacceptable.”). 23
24
25
26
27
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1 III. THE COURT HAS JURISDICTION OVER PLAINTIFFS’ ATS
2 CLAIMS.
3 A. Plaintiffs’ claims sufficiently touch and concern the United 4 States to establish jurisdiction.
5 Plaintiffs’ claims easily meet the “touch and concern” test for ATS 6
7 jurisdiction established by the Supreme Court in Kiobel v. Royal Dutch Petroleum
8 Co., 133 S. Ct. 1659 (2013). Kiobel requires that courts engage in a fact-based,
9 claims-specific inquiry to determine if extraterritorial injuries sufficiently “touch 10
11 and concern” the United States to allow for consideration by a U.S. court. See
12 Nestle USA, 766 F.3d at 1028; Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir.
13 2014). Defendants argue that the complaint contains no facts connecting 14
15 Plaintiffs’ ATS claims to the United States. ECF No. 27 at 23. That is incorrect.
16 Although Plaintiffs’ injuries were sustained abroad, virtually every fact
17 underpinning their claims is connected to the United States. 18
19 In determining whether ATS claims sufficiently “touch and concern” the
20 United States, courts examine whether “part of the conduct underlying their
21 claims occurred within the United States,” Nestle USA, 766 F.3d at 1028, and 22
23 whether a defendants’ U.S. citizenship “in conjunction with other factors, can
24 establish a sufficient connection between an ATS claim and the territory of the
25 United States to satisfy Kiobel.” Mujica, 771 F.3d at 594 & n. 9. Critically, “when 26
27 plaintiffs allege U.S. based conduct itself constituting a violation of the ATS, the
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1 presumption against extraterritoriality is no obstacle to consideration of ATS
2 claims.” Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75, 95 (D.D.C. 2014). 3
4 Plaintiffs’ allegations more than satisfy the “touch and concern” test, as
5 demonstrated by the ATS case most closely analogous to this one, Al Shimari v.
6 CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014). Al Shimari involved 7
8 claims brought by Iraqi citizens against a U.S. military contractor for the torture
9 and cruel treatment they endured at the U.S.-run Abu Ghraib prison in Iraq. The 10 defendant contractor sought dismissal, arguing that “the ATS does not under any 11
12 circumstances reach tortious conduct occurring abroad.” Id. at 528. The Fourth
13 Circuit rejected the contractor’s argument, explaining that 14 when a claim’s substantial ties to United States territory include the 15 performance of a contract executed by a United States corporation 16 with the United States government, . . . . it is not sufficient merely to say that because the actual injuries were inflicted abroad, the claims 17 do not touch and concern United States territory. 18 Id. After considering “the facts that [gave] rise to the ATS claims, including the 19
20 parties’ identities and their relationship to the causes of action” the court
21 concluded that jurisdiction was proper. Id. 527, 530–31. In particular, the Kiobel
22 test was satisfied by allegations that U.S. citizens, under contract with the U.S. 23
24 government, abused detainees in an overseas “facility operated by United States
25 government personnel,” id. at 528, combined with allegations that the contractor 26 took action in the United States in furtherance of overseas torture, id. at 531. 27
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1 Jurisdiction was reinforced by Congress’s intent to “provide aliens access to
2 United States courts and to hold citizens of the United States accountable for acts 3
4 of torture committed abroad.” Id.
5 All the factors the Fourth Circuit found sufficient to displace the Kiobel
6 presumption in Al Shimari are present here: Plaintiffs were tortured in facilities 7
8 under the control of the United States government, ECF No. 1 at 9 (¶ 18),
9 pursuant to the torture program Defendants devised and administered under 10 contract with the U.S. government in the United States, id. at 9, 31 (¶¶ 18, 66), 11
12 and coordinated with U.S. officials located in the United States, id. at 21 (¶¶ 43–
13 44). In addition, nearly all relevant conduct underlying Plaintiffs’ aiding and 14 abetting and conspiracy/joint criminal enterprise-based claims took place in the 15
16 United States: Plaintiffs allege that Defendants violated customary international
17 law because, in collaboration with U.S. government officials, they conceived of 18 and designed a torture program in the United States, and then implemented, 19
20 administered and oversaw it in large part from the United States. See id. at 9 (¶
21 18) (design and supervision of torture program occurred in the United States); 12- 22 –14 (¶¶ 24–27); 26–27 (¶¶ 57–59) (detailing design and implementation). These 23
24 facts are more than sufficient to establish jurisdiction under the ATS. See Mastafa
25 v. Chevron Corp., 770 F 3d 170 (2d. Cir. 2014) (ATS reaches U.S-based acts of 26 aiding and abetting tortious conduct causing injury abroad); Mwani v. Bin Laden, 27
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1 947 F.Supp.2d 1, 5 (D.D.C. 2013) (ATS claims sufficient because plaintiffs had
2 “presented evidence that . . . overt acts in furtherance of [the defendants’] 3
4 conspiracy took place in the United States”); Sexual Minorities Uganda v. Lively,
5 960 F.Supp.2d 304, 323 (D. Mass. 2013) (jurisdiction over overseas tort because
6 of “conduct undertaken by Defendant in the United States to provide assistance”). 7
8 None of the policy considerations identified in Kiobel militate against
9 jurisdiction in this case. This case does “not present any potential problems 10 associated with bringing foreign nationals into United States courts to answer for 11
12 conduct committed abroad.” Al Shimari, 758 F. 3d at 530. And, because the
13 norms that are the basis of Plaintiffs’ claims are all prohibited by U.S. law, 14 policy, and practice, “further litigation of these ATS claims will not require 15
16 ‘unwarranted judicial interference in the conduct of foreign policy.’” Id. (quoting
17 Kiobel, 133 S. Ct. at 1664). In fact, declining jurisdiction in this case would 18 undermine important U.S. policy objectives and threaten the serious foreign 19
20 policy consequences that Kiobel aimed in part to protect. Foreclosing jurisdiction
21 of these claims would provide U.S.-based torturers with a “safe harbor” in this 22 country, id., and undermine government assurances that our courts are capable of 23
24 providing remedies to victims and survivors of torture by U.S. government
25 contractors, see e.g., U.S. Dep’t of State, United States Response to 26 Questionnaire Concerning the Montreux Document Related to the Operations of 27
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1 Private Military and Security Companies During Armed Conflict (Dec. 19, 2013),
2 ¶16, http://1.usa.gov/20c9iFu (persons harmed by U.S. government contractors 3
4 can seek ATS remedies (citing Kiobel)).
5 Defendants do not cite—let alone distinguish—Al-Shimari, relying instead
6 on inapposite cases that contain no allegations that “human rights abuses were 7
8 planned, directed, or committed in the U.S.” ECF No. 27 at 23 (citing Doe I v.
9 Cisco Sys., Inc., 66 F. Supp. 3d 1239 (N.D. Cal. 2014)). Those cases bear little 10 resemblance to this one: Plaintiffs’ claims arise from the torture program that 11
12 Defendants devised and oversaw from the United States, coordinated with U.S.
13 officials located in the United States, and operated in collaboration with the U.S. 14 government pursuant to contracts with the U.S. government executed and 15
16 administered in the United States. Jurisdiction under the ATS is proper.
17 B. Plaintiffs state valid claims under the ATS. 18 Defendants argue that Plaintiffs have failed to sufficiently plead ATS 19
20 claims for torture and nonconsensual human experimentation. ECF No. 27at 23–
21 5 29. Defendants misunderstand the pleading requirements. 22
23 5 24 Defendants do not challenge the sufficiency of Plaintiffs’ ATS claims for
25 cruel, inhuman, and degrading treatment and for war crimes. Defendants’
26 violations of these prohibitions are actionable under the ATS. See p. 9, supra 27
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1 1. Plaintiffs have stated claims for torture under the ATS.
2 According to Defendants, Plaintiffs cannot plead a claim for torture 3
4 because “the OLC and CIA authorized Defendants’ alleged conduct and because
5 the OLC memoranda specifically concluded that the interrogation techniques
6 purportedly applied by Defendants did not result in the intentional infliction of 7
8 severe pain or suffering.” ECF No. 27 at 26. But, as discussed above, executive
9 branch memoranda cannot preempt this Court’s role in determining whether 10 Defendants violated the norm against torture. 11
12 Plaintiffs sufficiently allege claim of torture actionable under the ATS. As
13 Defendants concede, customary international law prohibits official torture, and 14 claims of violations are actionable under the ATS. ECF No. 27 at 24–25. The 15
16 Ninth Circuit has affirmed jury instructions that define torture under the ATS in
17 accordance with Article 1.1 of the CAT. See Hilao v. Estate of Marcos, 103 F.3d 18 789, 792 (9th Cir. 1996). The prohibition against torture extends to “any act by 19
20 which severe pain or suffering, whether physical or mental, is intentionally
21 inflicted on a person” for purposes including “obtaining from him or a third 22
23
24 (collecting ATS cases arising from cruel, inhuman and degrading treatment); see
25 also, e.g., Kadic, 70 F.3d at 243 (violations of Common Article 3 give rise to
26 ATS claims for war crimes, regardless of state action). 27
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1 person information.” CAT, art. 1.1. Plaintiffs’ allegations meet this definition.
2 The complaint alleges that “Defendants developed a phased program to induce 3
4 ‘learned helplessness” in CIA captives through the infliction of severe physical
5 and mental pain and suffering.’” ECF No. 1 at 26 (¶ 57). Defendants’ “very
6 purpose was to induce ‘learned helplessness,’” in prisoners by subjecting them to 7
8 “systematic abuse” modeled on experiments inflicting uncontrollable pain on
9 dogs. Id. at 2, 15 (¶¶ 2, 29). Plaintiffs were tortured to Defendants’ specifications: 10 “They were subjected to solitary confinement; extreme darkness, cold, and noise; 11
12 repeated beatings; starvation; excruciatingly painful stress positions; prolonged
13 sleep deprivation; confinement in coffin-like boxes; and water torture.” Id. at 2–3 14 (¶ 3). As a result, Plaintiffs endured “severe physical, mental, and emotional pain 15
16 and suffering.” Id. at 75 (¶ 172). Neither Defendants’ motion nor OLC’s memos
17 negate these allegations. Indeed, The OLC memoranda were specifically 18 repudiated for their erroneous and unsupportable interpretations of “severe pain 19
20 and suffering,” and the intent necessary for torture. See n. 4, supra; see also,
21 Oona Hathaway et. al., Tortured Reasoning, 52 Va. J. Int’l L. 791 (2012) 22 (defining intent requirement for torture under U.S. and international law). 23
24 Moreover, Defendants acknowledge that ATS claims for “official torture”
25 encompass claims against private individuals who “acted ‘together with state 26 officials,’ or with ‘significant state aid.’” ECF No. 27 at 24–25 n.2 (quoting Doe 27
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1 v. Saravia, 348 F. Supp. 2d 1112, 1145 (E.D. Cal. 2004)). And they concede that
2 “Plaintiffs allege that Defendants were acting under ‘color of law,’ and acting 3
4 alongside the CIA” when they designed and oversaw the torture program that
5 gave rise to this suit. Id. Defendants are mistaken, however, that by collaborating
6 with the CIA they acquired sovereign immunity. See supra Section II. 7
8 2. Plaintiffs have stated claims for non-consensual human experimentation under the ATS. 9
10 Defendants argue that the customary international law norm prohibiting
11 nonconsensual human experimentation is insufficiently specific, universal and 12 obligatory to give rise to a claim under the ATS. ECF No. 27 at 27. But the only 13
14 court to have evaluated this issue found the claim actionable. See Abdullahi v.
15 Pfizer, 562 F.3d 163 (2d Cir. 2009). In attempting to distinguish Pfizer, 16 Defendants assert that the Second Circuit failed to properly evaluate the law, and 17
18 that its reasoning should be limited to pharmaceutical testing. ECF No. 27 at 28.
19 But Defendants fail to articulate any deficiency in the Second Circuit’s reasoning 20
21 or its exhaustive examination of relevant sources of international law and
22 practice. As the Second Circuit correctly found, the norm is “sufficiently specific,
23 universally accepted, and obligatory for courts to recognize a cause of action to 24
25 enforce the norm.” Pfizer, 562 F.3d at 187 (citing Sosa v. Alvarez-Machain, 542
26 U.S. 692 (2004)). The prohibition is incorporated in numerous ratified
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1 multilateral treaties, international agreements, declarations, and domestic laws
2 and regulations, id. 177, 185–87, and is codified, without significant exception, in 3
4 “the domestic laws of at least eighty-four” countries—all of which “uniformly
5 and unmistakably prohibit” nonconsensual medical experimentation. Id. at 184.
6 Defendants likewise fail to identify a single source that supports the proposition 7
8 that countries treat non-pharmaceutical experimentation differently for the
9 purposes of this universally accepted prohibition. 10 Defendants also argue that their torture program was not experimental 11
12 because its methods were “based on” Defendants’ training and were applied to
13 another prisoner, Abu Zubaydah, prior to Plaintiffs’ torture. ECF No. 27 at 28–29. 14 But the purpose of and safeguards inherent to Defendants’ training were very 15
16 different from Defendants’ torture program, and in any event, Defendants’ torture
17 techniques went far beyond those used in their training. ECF No. 1 at 14–15 (¶¶ 18 28–29). And Defendants’ torture experiment began with Abu Zubaydah, but it did 19
20 not end with him. Defendants continually refined their program, including by
21 assessing whether “certain combinations and sequences of torture techniques 22 were most effective,” and “whether detainees became fully compliant with 23
24 interrogators’ demands once they had been reduced to a state of learned
25 helplessness.” Id. at 75 (¶ 174); see also id. at 29–31 ( ¶¶ 59–65) (describing 26 experiment). 27
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1 Finally, Defendants argue that nonconsensual experimentation on humans
2 is not actionable if the experiment is not “medical.” ECF No. 27 at 29. But 3
4 Defendants provide no basis for their conclusion that nonmedical human
5 experimentation is permissible, and none exists. See, e.g., International Covenant
6 on Civil and Political Rights, Art. 7, Dec. 19, 1966, 999 U.N.T.S. 171 (“no one 7
8 shall be subjected without his free consent to medical or scientific
9 experimentation” (emphasis added)); International Committee of the Red Cross 10 Study on Customary International Humanitarian Law (Jean-Marie Henckaerts & 11
12 Louise Doswald-Beck, eds., 2009), Rule 92: Mutilation and Medical, Scientific or
13 Biological Experiments, http://bit.ly/20jREQe (rule against “scientific” 14 experimentation is “a norm of customary international law” applicable in all 15
16 conflicts); M. Cheriff Bassiouni et al., An Appraisal of Human Experimentation
17 in International Law and Practice, 72 J. Crim. L. & Criminology, 1597, 1597 18 (1981) (human experimentation is “anything done to an individual to learn how it 19
20 will affect him”); Christine Byron, War Crimes and Crimes Against Humanity in
21 the Rome Statute of the International Criminal Court 112 (2009) (noting that 22 international prohibitions on “medical,” “biological,” and “scientific” 23
24 experiments are interchangeable and that it “would surely be inappropriate” to
25 rely on “the classification given by the defendant” in a war crimes case). 26
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1 Plaintiffs sufficiently allege that Defendants experimented on them without
2 their consent —the core elements of the norm. Defendants forced them to be 3
4 guinea pigs in an experiment aimed at acquiring information through regimented
5 torture. As prisoners, Plaintiffs could not consent. These allegations are sufficient
6 to state claims under the ATS. See Cheriff Bassiouni et. al, at 1665 (human 7
8 experimentation on prisoners “would be a war crime”).
9 IV. DEFENDANTS’ ATTEMPT TO DISMISS MR. RAHMAN’S 10 CLAIMS IS GROUNDLESS.
11 Plaintiffs have plead that Obaid Ullah is “the personal representative of the 12 estate of Gul Rahman.” ECF No. 1 at 6 (¶ 11). No more is required. See Fed. Rule 13
14 Civ. P. 9(a); see also Lang v. Texas & P. Ry. Co., 624 F.2d 1275, 1277 (5th Cir.
15 1980) (“although not requiring a plaintiff to aver capacity,” Rule 9(a) “does 16 require a defendant to plead absence of capacity.”). Although Defendants’ 17
18 objection is baseless, the Court may take judicial notice of the attached Order of
19 the Superior Court of Washington (Sept. 24, 2015), confirming that Mr. Ullah is 20
21 indeed the personal representative of Mr. Rahman’s estate. See Dror Ladin Decl.,
22 Exh. A.
23 CONCLUSION 24
25 For the reasons stated above, Defendants’ Motion to Dismiss should be
26 denied.
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1 RESPECTFULLY SUBMITTED this 11th day of February, 2016.
2 Dror Ladin (admitted pro hac vice) s/ La Rond Baker 3 [email protected] La Rond Baker
4 Steven M. Watt (admitted pro hac vice) WSBA No. 43610 [email protected]; [email protected] 5 Hina Shamsi (admitted pro hac vice) AMERICAN CIVIL LIBERTIES
6 [email protected] UNION OF WASHINGTON Jameel Jaffer (admitted pro hac vice) FOUNDATION 7 [email protected] 901 Fifth Avenue, Suite 630
8 AMERICAN CIVIL LIBERTIES Seattle, WA 98164 UNION FOUNDATION Phone: 206.624.2184 9 th 125 Broad Street, 18 Floor 10 New York, New York 10004 Phone: 212-519-7870 11
12 Paul Hoffman (admitted pro hac vice) 13 [email protected] 14 Schonbrun Seplow Harris & Hoffman, LLP 723 Ocean Front Walk, Suite 100 15 Venice, CA 90291 16 Phone: 310-396-0731
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on the 11th day of February, 2016, I electronically 3
4 filed the foregoing document with the Clerk of Court using the CM/ECF system,
5 which will send notification of such filing to the following:
6 Christopher W. Tompkins (WSBA #11686) 7 [email protected] 8 BETTS, PATTERSON &MINES P.S. 701 Pike Street, Suite 1400 9 Seattle, WA 98101-3927 10 Henry F. Schuelke III (admitted pro hac vice) 11 [email protected] 12 BLANK ROME LLP 600 New Hampshire Ave NW 13 Washington, DC 20037 14 James T. Smith (admitted pro hac vice) 15 [email protected] 16 Brian S. Paszamant (admitted pro hac vice) [email protected] 17 BLANK ROME LLP 18 One Logan Square, 130 N. 18th Street Philadelphia, PA 19103 19
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22 By s/ Dror Ladin [email protected] 23 AMERICAN CIVIL LIBERTIES 24 UNION FOUNDATION
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