Case 2:15-Cv-00286-JLQ Document 204 Filed 06/26/17

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Emily Chiang, WSBA No. 50517

2 [email protected] AMERICAN CIVIL LIBERTIES UNION 3 OF WASHINGTON FOUNDATION

4 901 Fifth Avenue, Suite 630 Seattle, WA 98164 5 Phone: 206-624-2184

6 Dror Ladin (admitted pro hac vice) 7 Steven M. Watt (admitted pro hac vice)

8 Hina Shamsi (admitted pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 9

10 Lawrence S. Lustberg (admitted pro hac vice) Kate E. Janukowicz (admitted pro hac vice) 11 Daniel J. McGrady (admitted pro hac vice)

12 Avram D. Frey (admitted pro hac vice) GIBBONS P.C. 13

14 Attorneys for Plaintiffs

15 UNITED STATES DISTRICT COURT 16 FOR THE EASTERN DISTRICT OF WASHINGTON

17 SULEIMAN ABDULLAH SALIM, No. 15-CV -0286-JLQ

18 MOHAMED AHMED BEN SOUD, PLAINTIFFS’ REPLY TO OBAIDULLAH (AS PERSONAL 19 DEFENDANTS’ RESPONSE REPRESENTATIVE OF GUL RAHMAN), TO PLAINTIFFS’ 20 STATEMENT OF Plaintiffs, 21 UNDISPUTED MATERIAL FACTS 22 v. NOTE ON MOTION 23 JAMES ELMER MITCHELL and JOHN CALENDAR:

24 “BRUCE” JESSEN JULY 28, 2017, 9:30 A.M., AT 25 SPOKANE, WASHINGTON Defendants. 26

27 PLAINTIFFS’ REPLY TO DEFENDANTS’ AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON RESPONSE TO PLAINTIFFS’ SUMF FOUNDATION No. 15-CV-286 (JLQ) 901 Fifth Ave, Suite 630 Seattle, WA 98164 Page | 1 (206) 624-2184

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1 Plaintiffs Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and 2 ObaidUllah (as personal representative of Gul Rahman), pursuant to Rule 56 of 3

4 the Federal Rules of Civil Procedure and Rules 7.1 and 56.1 of the Local Rules

5 for the United States District Court, Eastern District of Washington, file this

6 reply to Defendants’ Response to Plaintiffs’ Statement of Undisputed Material

7 Facts (“Defendants’ Response”). In an effort to avoid repetition, Plaintiffs here

8 set forth several objections that address errors Defendants repeat throughout 9 their Response. 10 1. Most of Defendants’ purported factual responses fail to comply 11 with the Federal and Local Rules because they do not cite specific evidence 12

13 demonstrating disputed issues of fact. See Fed. R. Civ. P. 56(c)(1); Local Civil

14 Rule 56.1 (requiring a party to set forth the “specific facts which [it] asserts

15 establish[] a genuine issue of material fact precluding summary judgment” and

16 “refer to the specific portion of the record” establishing such disputes).

17 Defendants repeatedly fail to even address Plaintiffs’ asserted facts, and instead 18 raise unrelated subjects in an effort to manufacture disputes. This approach is 19 improper. To avoid repetition, Plaintiffs will refer to this objection as 20 “Response—No record dispute.” 21

22 2. Throughout their Response, Defendants object that information

23 related to Abu Zubaydah is irrelevant. Defendants’ personal use of their

24 methods on Abu Zubaydah is, however, an integral aspect of Defendants’ design

25 and implementation of the CIA program. As this Court has observed,

26 Defendants themselves requested “documents pertaining to Abu Zubaydah as

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1 relevant to Defendants alleged role in the design of the enhanced interrogation 2 program,” because “it appears Zubaydah was the first detainee involved in the 3

4 program.” 2:16-mc-00036-JLQ, ECF No. 31 at 4–5; see also id. at 5 (ordering

5 production of “documents referencing Abu Zubaydah”). Indeed, Abu Zubaydah

6 was the first CIA detainee and the first prisoner Defendants ever interrogated,

7 and as Defendants admit, the methods they used on Abu Zubaydah were

8 formalized as the CIA’s “Enhanced Techniques.” Defendants’ Statement of 9 Undisputed Facts (“Defs.’ SOF”), ECF No. 170 ¶ 229. Information in the record 10 related to Abu Zubaydah is essential to causation, establishing Defendants’ test- 11 run of the program before it was expanded to other prisoners, including 12

13 Plaintiffs. Moreover, Defendants’ personal implementation of their methods on

14 Abu Zubaydah is highly relevant to Plaintiffs’ claims, because it establishes

15 Defendants’ firsthand knowledge of the severe physical and mental pain and

16 suffering their methods caused, which is directly relevant to the mens rea

17 element of aiding and abetting liability. Defendants’ objection therefore has no 18 merit and should be overruled. Plaintiffs will refer to this objection as 19 “Response—Zubaydah.” 20 3. Defendants also repeatedly object to the relevance of documents 21

22 mentioning their proposal to use and actual use of the waterboard method as part

23 of the CIA program. This objection is groundless. As an initial matter, the

24 record shows that Plaintiffs Salim and Ben Soud were subjected to methods that

25 approximated waterboarding. See infra ¶¶ 97–98, 117–18. Also importantly,

26 the waterboard was one component of Defendants’ methods, all of which were

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1 part of their psychologically-based program to “instill fear and despair” in 2 detainees. ECF No. 182-8 at U.S. Bates 001110–11. In Abu Zubaydah’s case, 3

4 Defendants used the waterboard; for other detainees, similar methods were used,

5 in combination with other methods Defendants advanced. This combined

6 program was formalized and used by Defendants and others on CIA prisoners.

7 When examining Defendants’ firsthand knowledge of the extreme suffering

8 their program caused Abu Zubaydah, the effects of the waterboard—which 9 Defendants combined with walling, cramped confinement, stress positions, sleep 10 deprivation, and many other abuses—cannot be artificially isolated from the rest 11 of their methods. Abu Zubaydah suffered on the waterboard, as he suffered in 12

13 the box and against the wall, all of which establishes that Defendants knew

14 exactly what their program consisted of, and what its effects were. Defendants

15 claimed all their methods were safe, effective, and would not cause severe pain

16 and suffering; they cannot retroactively eliminate a method they themselves

17 proposed and used. Plaintiffs will refer to this response as “Response— 18 Waterboard.” 19 4. In their Response, Defendants repeatedly speculate that Plaintiffs 20 were part of a “parallel” CIA program, unrelated to the program Defendants 21

22 designed and implemented. Defendants present no evidence that there was a

23 separate CIA program that used Defendants’ methods, nor that Plaintiffs were

24 subjected to a separate program. It is undisputed that in July 2002, Defendants

25 provided the CIA with a list of twelve coercive interrogation techniques, ten of

26 which were eventually authorized for use on the CIA’s first prisoner, Abu

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1 Zubaydah. ECF No. 175-10 at U.S. Bates 001109–001111; ECF No. 174-10 at 2 U.S. Bates 001760–001765. Together with “abdominal slap,” which Defendants 3

4 admit using on Abu Zubaydah, these techniques became known as the

5 “enhanced interrogation techniques”. Id. After Defendants implemented these

6 methods on the CIA’s first detainee, the CIA formalized its use of these twelve

7 methods in guidelines sent to COBALT in January 2003. ECF No. 174-14 at

8 U.S. Bates 001170–001174. These guidelines were directed to “all agency 9 personnel” for “the conduct of interrogations of persons” detained by the CIA. 10 Id. Consistent with the preamble to the Guidelines, John Rizzo testified that 11 there was a single program in which the methods were used—an “enhanced 12

13 interrogation program.” Deposition of John Rizzo 64:8–23 (McGrady Decl.,

14 Exh. A, cited hereinafter as “Rizzo Dep.”). Mr. Rizzo further testified that there

15 was no other CIA interrogation program in which Defendants’ methods were

16 used. McGrady Decl., Exh. A, Rizzo Dep. 64:8–23; 101:20–102:15. Jose

17 Rodriguez, the former Chief of the CIA Counterterrorism Center, described 18 Defendant Mitchell as “the architect of the CIA interrogation program.” 19 Deposition of Jose Rodriguez 53:19–21 (McGrady Decl., Exh. B, cited 20 hereinafter as “Rodriguez Dep.”). Plaintiffs Salim and Ben Soud were detained 21

22 at COBALT in April 2003. ECF No. 181 ¶ 3 (Salim Decl.); ECF No. 180 ¶ 3

23 (Ben Soud Decl.). CIA records verify that Plaintiffs Salim and Ben Soud were

24 subjected to “enhanced interrogation techniques” during this period. ECF No.

25 183-2 at U.S. Bates 001567, 001581; Defendants have presented nothing

26 beyond their own unsupported speculation that Plaintiffs were abused in some

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1 “parallel” program that—purely coincidentally—employed the exact same 2 methods that Defendants proposed, advanced, and were approved. Accordingly, 3

4 Defendants’ objection is without merit. Plaintiffs will refer to this response

5 below as “Response—Speculation about multiple programs.”

7 Plaintiffs’ Reply to Defendants’ Response to Plaintiffs’ Statement of Undisputed Material Facts 8

9 1. Plaintiffs’ Fact: Defendants “played a significant and formative role in the

10 development of [CIA Counterterrorism Center (CTC)’’s] detention and 11 interrogation program.” Deposition of James Elmer Mitchell 335:22-24 12 (Ladin Decl., Exh. A, cited hereinafter as “Mitchell Dep.”). 13

15 Defendants’ Response: Disputed. Plaintiffs mischaracterize the citation to

16 the deposition of James Elmer Mitchell (“Dr. Mitchell”) as testimony

17 when it is, in fact, part of a question posed by Plaintiffs’’ attorney. Dr.

18 Mitchell did not adopt or agree with the characterization. Deposition of

19 James Elmer Mitchell (“Mitchell Dep.”) 335:22-24. 20

21 Plaintiffs’ Response: Response—No Record Dispute. Contrary to 22 Defendants’ assertion, Defendant Mitchell explicitly agreed that he and 23

24 Defendant Jessen played a significant and formative role in the

25 development of the detention and interrogation program. See Deposition

26 of James Elmer Mitchell 336:10-15 (McGrady Decl., Exh. C, cited

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1 hereinafter as “Mitchell Dep.”) (“Q. Okay. Do you agree that you played 2 – you and Dr. Jessen played a significant and formative role in the 3

4 development of CDC’s [sic] detention and interrogation program? A.

5 Yes.”).

7 2. Plaintiffs’ Fact: When the CIA captured its first prisoner, Abu Zubaydah, the

8 CIA Counterterrorism Center had no experience or expertise on 9 interrogation. Deposition of Jose Rodriguez 46:23-48:4 (Ladin Decl., Exh. B, 10 cited hereinafter as “Rodriguez Dep.”). 11

13 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion

14 for Partial Summary Judgment (“Plaintiffs’ Motion”). Objection—

15 Zubaydah.

17 Plaintiffs’ Response: Response—Zubaydah. 18

19 3. Plaintiffs’ Fact: Defendants had never interrogated a prisoner before Abu 20 Zubaydah. Deposition of John “Bruce” Jessen 116:3-8 (Ladin Decl., Exh. C, 21

22 cited hereinafter as “Jessen Dep.”).

24 Defendants’ Response: Disputed. Plaintiffs imply that Defendants Dr.

25 Mitchell and John “Bruce” Jessen (“Dr. Jessen”) (collectively,

26 “Defendants”) were not qualified to conduct interrogations. Although

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1 Defendants had not “done interrogations of live terrorists before”, Dr. 2 Jessen had extensive experience designing advanced courses that 3

4 specifically prepared trainees for capture by terrorist groups and Dr.

5 Mitchell had extensive experience as part of a counterterrorism unit

6 studying how enemy organizations approached interrogations.

7 Defendants Statement of Undisputed Facts (“Defs.’ SOF”) (ECF No. 170)

8 ¶¶ 17, 20; Jessen Dep. 116:3-8. 9

10 Plaintiffs’ Response: Response—No record dispute. Defendants admit 11 they had never interrogated a prisoner prior to Abu Zubaydah. See 12

13 Deposition of John “Bruce” Jessen 116:3-8 (McGrady Decl., Exh. D,

14 cited hereinafter as “Jessen Dep.”); McGrady Decl. Exh. C, Mitchell Dep.

15 48:16-18.

17 4. Plaintiffs’ Fact: Before the aggressive phase began, Defendant Mitchell 18 recommended that Abu Zubaydah’s sleep be disrupted, that he not be 19 provided with any amenities, and that noise be fed into Abu Zubaydah’s cell. 20 Am. Answer, ECF No. 77 ¶ 34. 21

23 Defendants’ Response: Disputed. These recommendations were made by

24 a three-member behavioral team led by a CIA employed psychologist, of

25 which Dr. Mitchell was merely one member. Defs.’ SOF ¶¶ 46-51.

26 Objection—Zubaydah.

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2 Plaintiffs’ Response: Response—No record dispute. In their Amended 3

4 Answer, Defendants explicitly admit “that Mitchell recommended that

5 Zubaydah not be provided with any amenities, his sleep be disrupted and

6 that noise be fed into his cell.” Am. Answer, ECF No. 77 ¶ 34.

7 Response—Zubaydah.

9 5. Plaintiffs’ Fact: The plan was that “white noise generators” would disrupt 10 Abu Zubaydah’s ability to think and would “increase his sense of 11 helplessness by highlighting his inability to alter the environment around 12

13 him.” The goal was to emphasize that “the only mechanism [Abu Zubaydah]

14 has at his disposal to control the environment will be in providing vital

15 intelligence,” and that pleasing his interrogators was the only way to “earn

16 basic privileges” and receive better conditions. Ladin Decl., Exh. D at U.S.

17 Bates 001828. 18

19 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 20 Defendants further state that the interrogation plan for Zubaydah included 21

22 the use of “physically non-harmful” white noise generators to “be used in

23 variable lengths of time[.]” Ladin Decl., Exh. D at U.S. Bates 001826 at ¶

24 3, 001828. Objection—Zubaydah.

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1 Plaintiffs’ Response: Response—No record dispute. Defendants’ 2 argument that the white noise generators were “physically non-harmful” 3

4 is also irrelevant, as detention conditions in the CIA program were

5 designed to induce psychological, not physical harm. See ECF No. 182-4

6 at U.S. Bates 001826. Response—Zubaydah.

8 6. Plaintiffs’ Fact: Defendant Mitchell took part in recommending sensory 9 deprivation, including painting the cell white, installing halogen lights, 10 installing sound-dampening carpeting, and “the sanding of the holding cell 11 bars to reduce AZ’s ability to stimulate his sensorium via rubbing of the 12

13 bars.” Ladin Decl., Exh. E at MJ00022604; Ladin Decl., Exh. F at U.S. Bates

14 002000.

16 Defendants’ Response: Defendants do not contest for purposes of

17 Plaintiffs’ Motion that these recommendations were made by a three- 18 member behavior team led by a CIA employed psychologist, of which Dr. 19 Mitchell was merely one member. Defs.’ SOF ¶¶ 46-51. Objection— 20 Zubaydah. 21

23 Plaintiffs’ Response: Response—No record dispute. Response—

24 Zubaydah.

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1 7. Plaintiffs’ Fact: Abu Zubaydah was subsequently kept naked in a cell lit by 2 halogen lamps for 24 hours per day, while being subjected constantly to rock 3

4 music or other noise. Am. Answer, ECF No. 77 ¶ 38.

6 Defendants’ Response: Disputed to the extent that this implies that the

7 music or noise was something other than “physically non-harmful” noise.

8 Ladin Decl., Exh. D at U.S. Bates 001826 at ¶ 3. Disputed to the extent 9 Plaintiffs imply that either Defendant played any role in determining that 10 Zubaydah would be kept naked, as there is no support in the record for 11 Defendants’ involvement in that determination. Otherwise not contested 12

13 for purposes of Plaintiffs’ Motion. Objection-Zubaydah.

15 Plaintiffs’ Response: Response—No record dispute. Defendants do not

16 dispute that Defendant Mitchell was part of the three-person behavioral

17 team that made recommendations for how Abu Zubaydah was to be 18 initially treated. See Defs.’ SOF #6. In fact, it was Defendant Mitchell 19 who personally cut off Abu Zubaydah’s clothing. McGrady Decl., Exh. E 20 at U.S. Bates 001669. Defendants’ argument that that the loud music was 21

22 “physically non-harmful” is irrelevant, as the detention conditions in the

23 CIA program were designed to induce psychological, not physical harm.

24 See ECF No. 182-4 at U.S. Bates 001826. Response—Zubaydah.

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1 8. Plaintiffs’ Fact: The “deliberate manipulation of the environment” in 2 accordance with these recommendations was “intended to cause 3

4 psychological disorientation . . . as well as an increased sense of learned

5 helplessness.” Ladin Decl., Exh. F at U.S. Bates 002000.

7 Defendants’ Response: Disputed that “learned helplessness” as described

8 by Dr. Martin Seligman (“Dr. Seligman”) was intended. Defs.’ SOF ¶¶ 9 53-56. Individuals affiliated with the CIA often misused the term “learned 10 helplessness” in documents because they did not understand and 11 appreciate the distinction between helplessness to induce cooperation—as 12

13 utilized in the Survival Evasion Resistance and Escape (“SERE”)

14 training—and “learned helplessness,” as described by Dr. Seligman,

15 which would inhibit cooperation. Defs.’ SOF ¶57. Defendants do not

16 contest for purposes of Plaintiffs’ Motion that the underlying document is

17 accurately quoted. Objection—Zubaydah. 18

19 Plaintiffs’ Response: Response—No record dispute; the cable speaks for 20 itself; Response—Zubaydah. 21

23 9. Plaintiffs’ Fact: During this phase, the “development of psychological

24 dependence, learned helplessness and short term thinking” were pursued by

25 the deliberate environmental modifications and sleep deprivation, which

26 aimed to produce “disorientation by not allowing in natural light nor routine

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1 of schedule.” Ladin Decl., Exh. D at U.S. Bates 001826. The desired result 2 was that “the early phases of the process will encourage the development of 3

4 the necessary mindset where [the CIA prisoner] will have difficulty

5 concentrating, planning, and most importantly resisting the process.” Ladin

6 Decl., Exh. D at U.S. Bates 001827.

8 Defendants’ Response: Disputed that “learned helplessness” as described 9 by Dr. Seligman was pursued. Defs.’ SOF ¶¶ 53-56. Individuals affiliated 10 with the CIA often misused the term “learned helplessness” in documents 11 because they did not understand and appreciate the distinction between 12

13 helplessness to induce cooperation—as utilized in SERE—and “learned

14 helplessness,” as described by Dr. Seligman, which would inhibit

15 cooperation. Defs.’ SOF 1 57. Defendants do not contest for purposes of

16 Plaintiffs’ Motion that the underlying document is accurately quoted.

17 Objection—Zubaydah. 18

19 Plaintiffs’ Response: Response—No record dispute; the cable speaks for 20 itself. Response—Zubaydah. 21

23 10. Plaintiffs’ Fact: Eventually, the interrogation team “substituted a stereo to

24 play loud rock music to enhance his sense of hopelessness.” Ladin Decl.,

25 Exh. G at U.S. Bates 002146.

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1 Defendants’ Response: Disputed. The April 25, 2002 Cable cited by 2 Plaintiffs as support for this statement (US Bates 002146) states, “We 3

4 have recently substituted a stereo to play loud rock music to enhance his

5 sense of hopelessness.” (emphasis added) Disputed that the term “we”

6 denotes the interrogation team because the sender of the cable is redacted.

7 Ladin Decl., Exh. G at U.S. Bates 002146. Disputed to the extent this

8 implies that the music was something other than “physically non-harmful” 9 noise. Ladin Decl., Exh. D at U.S. Bates 001826 at ¶ 3. Objection— 10 Zubaydah. 11

13 Plaintiffs’ Response: Response—No record dispute. Response—

14 Zubaydah. Indeed, Defendants themselves cite this cable as evidence of

15 what the “Zubaydah interrogation team” did in April 2002. ECF No. 170

16 ¶ 67 (citing cable). As Defendants know, all cables sent by the

17 interrogation team have the sender identification redacted in accordance 18 with the discovery stipulation into which all parties have entered. See 19 ECF No. 47 ¶ 12 (Defendants agree “to explore ways in which 20 information relevant to the claims or defenses asserted can be provided 21

22 subject to the limitations expressed by the United States, including

23 redaction of documents”). Moreover, the cable contains a firsthand

24 description of Abu Zubaydah’s interrogation that only the interrogation

25 team could provide. Defendants’ argument that the music was

26 “physically non-harmful” is irrelevant, as detention conditions in the CIA

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1 program were aimed at inducing psychological, not physical harm. See 2 ECF No. 182-4 at U.S. Bates 001826. 3

5 11. Plaintiffs’ Fact: Defendant Mitchell decided that he had sufficient

6 “qualifications to put together a psychologically based interrogation

7 program.” Ladin Decl., Exh. E at MJ00022632.

9 Defendants’ Response: Disputed. Plaintiffs mischaracterize MJ00022632, 10 which states “[T]he question was about my qualifications to put together a 11 psychologically based interrogation program that would condition Abu 12

13 Zubaydah to cooperate and then interrogate him using it. I knew it would

14 need to be based on what was called ‘Pavlovian Classical Conditioning’ . .

15 . and I was very familiar with it because my early training was as a

16 behavioral psychologist.” Ladin Decl., Exh. E at MJ00022632.

18 Plaintiffs’ Response: Response—No record dispute. Plaintiffs quote 19 directly from Defendant Mitchell’s book, and Defendants merely add 20 additional material, which does not dispute Plaintiffs’ Fact. To the extent 21

22 Defendants’ clarification is intended to suggest that Defendants’ program

23 was somehow limited to Abu Zubaydah, see Response—Speculation

24 about multiple programs.

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1 12. Plaintiffs’ Fact: Mitchell “knew that the bulk of psychologists would 2 probably object” to his actions. Ladin Decl., Exh. A, Mitchell Dep. 270:12- 3

4 13.

6 Defendants’ Response: Disputed. Plaintiffs mischaracterize Dr.

7 Mitchell’s cited testimony. Although the partial quotation is accurate,

8 Plaintiffs incorrectly attribute the statement broadly to all of Dr. 9 Mitchell’s “actions.” In fact, Dr. Mitchell testified that he “knew the bulk 10 of psychologists would probably object” to him being the individual that 11 conducted the interrogations using EITs. Mitchell Dep. 270:12-13; 12

13 Mitchell Dep. Ex. 4 (Mitchell’s Manuscript) at MJ00022631.Objection—

14 Zubaydah.

16 Plaintiffs’ Response: Response—No record dispute. Response—

17 Zubaydah. Moreover, Defendant Mitchell admitted that after he decided 18 “to put together an interrogation program using EITs” and to “conduct the 19 interrogations using EITs,” “I knew [that] if I agreed, my life as I knew it 20 would be over. I would never again be able to work as a psychologist.” 21

22 See McGrady Decl., Exh. F at MJ00022631.

24 13. Plaintiffs’ Fact: At Defendant Mitchell’s recommendation, the CIA

25 contracted his friend, Defendant Jessen to help “put together an interrogation

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1 program” and implement it on Abu Zubaydah. Ladin Decl., Exh. A, Mitchell 2 Dep. 399:22-400:19; Ladin Decl., Exh. E at MJ00022631-32. 3

5 Defendants’ Response: Disputed. The cited documents indicate that Dr.

6 Jessen was contracted to help “put together an interrogation program” for

7 “use” exclusively on Zubaydah. Ladin Decl., Exh. E at MJ00022631.

9 Plaintiffs’ Response: Response—No record dispute. The document does 10 not say that the program was to be applied “exclusively” on Abu 11 Zubaydah. 12

14 14. Plaintiffs’ Fact: The program was based on “Pavlovian Classical

15 Conditioning.” Ladin Decl., Exh. E at MJ00022632.

17 Defendants’ Response: Defendants do not contest for purposes of 18 Plaintiffs’ Motion that the program that they were contracted to help 19 develop for Zubaydah was based upon Pavlovian Classic Conditioning. 20 Ladin Decl., Exh. E at MJ00022631-32. Objection—Zubaydah. 21

23 Plaintiffs’ Response: Response—No record dispute. Response—

24 Zubaydah. In further response, Defendants’ use of “Pavlovian Classical

25 Conditioning” was an essential part of the program and not limited to Abu

26 Zubaydah. Defendant Mitchell specifically admitted that Defendants used

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1 their methods to “condition KSM and the other detainees.” See, e.g, 2 McGrady Decl., Exh. F at MJ00022763 (“To condition KSM and the 3

4 other detainees to experience fear and emotional discomfort when they

5 thought about being deceitful, we had to time the application of an

6 aversive EIT, like walling, to start when they were thinking about

7 withholding information and stop when they were thinking about anything

8 else.”) (emphasis in original). 9

10 15. Plaintiffs’ Fact: A prisoner subjected to the program would be given “a 11 choice, you can start talking or you can get some more physical pressure.” 12

13 Ladin Decl., Exh. C, Jessen Dep.161:20-162:2.

15 Defendants’ Response: Disputed. Plaintiffs mischaracterize Dr. Jessen’s

16 cited testimony. Dr. Jessen explained how the CIA’s interrogation

17 program for HVDs (the “HVD Program”) used helplessness as described 18 in the Army Field Manual. More specifically, temporary helplessness was 19 induced through physical pressures designed to be used in a way that did 20 not harm, but made someone uncomfortable, and the subject knew that the 21

22 pressures would stop if he cooperated in some way. Jessen Dep. 160:19-

23 163:22. Dr. Jessen also testified that during each HVD interrogation,

24 medical, psychological, administrative and intelligence staff were able to

25 stop an interrogation if there was a physical or psychological threat to the

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1 detainee. Id. at 136:5-16. Thus, an interrogation could be stopped even if 2 the prisoner did not cooperate. 3

4 Defendants further dispute any implication that they were part of an

5 interrogation program that was used on Plaintiffs, or on any detainees who

6 were not HVDs. Defs.’ SOF ¶ 208-11 (the interrogation techniques

7 proposed by Defendants were for use only on HVDs).

9 Plaintiffs’ Response: Response—No record dispute. Response— 10 Speculation about multiple programs. Plaintiffs quote directly from 11 Defendant Jessen’s testimony. 12

14 16. Plaintiffs’ Fact: Mitchell testified that “my thinking on the subject was that,

15 much like with a dental phobia, the time that they’re going to be most

16 motivated to get out of it is before the next time” the physical pressures were

17 applied. Ladin Decl., Exh. A, Mitchell Dep. 358:20-24. 18

19 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 20

23 17. Plaintiffs’ Fact: Jose Rodriguez, who was then the head of CTC, explained

24 that he heard Defendant Mitchell use the phrase “learned helplessness,” and

25 “explaining these psychological terms,” but that Mr. Rodriguez’s own

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1 interest was “in getting results, not in, you know, the psychological state of 2 people.” Ladin Decl., Exh. B, Rodriguez Dep. 85:6-86:20. 3

5 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

6 But, objected to as irrelevant to the resolution of the issues presented in

7 Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. EVID. 401, 402).

9 Plaintiffs’ Response: That Jose Rodriguez relied upon Defendant 10 Mitchell’s psychological explanations in adopting the program is directly 11 relevant because it is part of the substantial assistance Defendant Mitchell 12

13 provided in aiding and abetting the program to which Plaintiffs were

14 subjected and that caused Plaintiffs’ injuries.

16 18. Plaintiffs’ Fact: Jose Rodriguez testified that Defendant Mitchell “had a

17 good vision for what needed to be done,” which “was the use of enhanced 18 interrogations to get Abu Zubaydah to cooperate with us.” Ladin Decl., Exh. 19 B, Rodriguez Dep. 37:8-38:4. 20

22 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

23 Objection—Zubaydah.

25 Plaintiffs’ Response: Response—Zubaydah.

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1 19. Plaintiffs’ Fact: In July 2002, Defendant Mitchell and others within the CIA 2 assessed Abu Zubaydah as uncooperative. Am. Answer, ECF No. 77 ¶41. 3

5 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

6 Objection—Zubaydah.

8 Plaintiffs’ Response: Response—Zubaydah. 9

10 20. Plaintiffs’ Fact: Defendants drafted and submitted to the CIA a 11 recommended list of 12 physically coercive methods that they claimed would 12

13 “instill fear and despair”: “Attention Grasp,” “Walling,” Facial Hold,”

14 “Facial Slap (Insult Slap),” “Cramped Confinement,” “Wall Standing,”

15 “Stress Positions,” Sleep Deprivation,” “Water Board,” “Use of Diapers,”

16 “Insects,” and “Mock Burial.” Ladin Decl., Exh. H at U.S. Bates 0001110-

17 11; Ladin Decl., Exh. C, Jessen Dep. 114:20-115;11; Ladin Decl., Exh. A, 18 Mitchell Dep. 262:5-21. 19

20 Defendants’ Response: Disputed. Not contested for purposes of 21

22 Plaintiffs’ Motion that Defendants drafted US Bates 001110-11 (the “July

23 2002 Memo”). But, Plaintiffs mischaracterize the July 2002 Memo, which

24 characterizes the 12 interrogation methods (i.e. the EITs) as “potential

25 physical and psychological pressures” not as “physically coercive

26 methods,” as asserted by Plaintiffs. Additionally, the document states,

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1 “[t]he aim of using these techniques is to dislocate the subject’s 2 expectations concerning how he is apt to be treated and instill fear and 3

4 despair.” Defendants did not claim that the interrogation methods “would

5 instill fear and despair,” as asserted by Plaintiffs. Ladin Decl., Exh. H at

6 U.S. Bates 0001110-11.

8 Plaintiffs’ Response: Response—No record dispute. Defendant Mitchell 9 himself has described the techniques as coercive. McGrady Decl., Exh. 10 C, Mitchell Dep. 342:7–11 (“What we did, regardless of what phrase 11 somebody else decides to use to describe it, is we provided them with a 12

13 list of techniques that they should consider in our view using if they were

14 going to use coercive techniques.”).

16 21. Plaintiffs’ Fact: Defendants based their list of coercive methods on

17 techniques used in training in the Department of Defense’s Survival, 18 Research, Evasion and Escape (“SERE”) program. Ladin Decl., Exh. A, 19 Mitchell Dep. 186:1-187:3. 20

22 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion,

23 except that the July 2002 Memo does not characterize the EITs as

24 “coercive methods” as asserted by Plaintiffs (as discussed immediately

25 above).

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs’ Response: Defendant Mitchell admitted the methods were 2 coercive. See Pls.’ Resp. to SUMF #20. 3

5 22. Plaintiffs’ Fact: “The techniques used in SERE school, based, in part, on

6 Chinese Communist techniques used during the Korean War to elicit false

7 confessions, include stripping students of their clothing, placing them in

8 stress positions, putting hoods over their heads, disrupting their sleep, 9 treating them like animals, subjecting them to loud music and flashing lights, 10 and exposing them to extreme temperatures.” S. Comm. on Armed Servs., 11 110th Cong., 2d Sess., Report on Inquiry into the Treatment of Detainees in 12

13 U.S. Custody (Comm. Print 2008) at xiii, xxvi (Ladin Decl., Exh. I, cited

14 hereinafter as “SASC Report”).

16 Defendants’ Response: Defendants object to this “fact” as inadmissible

17 hearsay and irrelevant to the resolution of the issues presented in 18 Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. EVID. 802, 401, 19 402). Defendants do not contest that the SASC Report is accurately 20 quoted, although the relevant portions are not attached as part of Exhibit I 21

22 to the Ladin Decl. Ladin Decl., Exh. I.

24 Plaintiffs’ Response: Contrary to Defendants’ objection, the fact is

25 admissible as “factual findings from a legally authorized investigation.”

26 Fed. R. Evid. 803(8)(A)(iii); see also, e.g., Barry v. Trustees of Int’l Ass’n

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1 Full-Time Salaried Officers & Employees of Outside Local Unions & 2 Dist. Counsel’s (Iron Workers) Pension Plan, 467 F. Supp. 2d 91, 101 3

4 (D.D.C. 2006) (“[T]his Court concludes that the Senate Report is

5 trustworthy and admissible as an exception to the hearsay bar”). In any

6 event, substantially similar evidence is presentable through other

7 admissible sources, including Defendants’ testimony. See McGrady

8 Decl., Exh. D, Jessen Dep. 56:20–57:14, 64:10–65:23. Fact #22 is 9 relevant because it establishes the background and derivation of 10 Defendants’ methods, and also rebuts that Defendants thought those 11 methods could be used safely, effectively, and lawfully. 12

14 23. Plaintiffs’ Fact: Defendant Jessen admitted that techniques used in SERE

15 training were based in part on coercive interrogation methods inflicted by

16 enemies on American soldiers in the Korean War. He testified that he didn’t

17 “know who determines what’s legal and illegal, but the techniques were to 18 represent what we thought our enemy might do if they weren’t adhering to 19 the Geneva Conventions.” Ladin Decl., Exh. C, Jessen Dep. 57:3-14; 65:10- 20 23. 21

23 Defendants’ Response: Defendants object to this fact as irrelevant to the

24 resolution of the issues presented in Plaintiffs’ Motion (FED. R. CIV. P.

25 56(e)(1); FED. R. EVID. 401, 402). Defendants further dispute that Dr.

26 Jessen “admitted” that the SERE techniques were based on interrogation

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1 methods used on American soldiers during the Korean War. In response 2 to the question “Did you ever have an understanding that the SERE 3

4 techniques were based in part on Chinese Communist techniques from the

5 Korean War?”, Dr. Jessen said “I think I do remember that.” Jessen Dep.

6 57:3-14. Defendants do not dispute for purposes of Plaintiffs’ Motion that

7 Dr. Jessen’s testimony is otherwise accurately quoted.

9 Plaintiffs’ Response: Response—No record dispute. Plaintiffs’ Fact #23 10 is relevant to intent because Defendant Jessen knew that his proposed 11 techniques did not comply with the Geneva Conventions, which prohibit 12

13 torture and cruel, inhuman, or degrading treatment.

15 24. Plaintiffs’ Fact: (a) SERE training differed from Defendants’ proposal:

16 Techniques were used on volunteers, not on prisoners with serious injuries

17 and open wounds. Ladin Decl., Exh. C, Jessen Dep. 134:21-135:20. (b) 18 SERE volunteers knew the start and end date of their training, and could end 19 it at any time, while prisoners were made to believe that their interrogation 20 could last for the rest of their natural lives. Ladin Decl., Exh. I, SASC Report 21

22 at 31; Ladin Decl., Exh. J at U.S. Bates 001957-58.

24 Defendants’ Response: Defendants object to this “fact” as compound.

25 (a) Disputed. Plaintiffs mischaracterize Dr. Jessen’s testimony. Dr. Jessen

26 testified that SERE training was voluntary and that during his experience

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 at SERE, he did not witness a SERE trainee participate in the program 2 with an open wound or gun-shot wound. Plaintiffs’ remaining statements 3

4 are not supported by Dr. Jessen’s testimony. Ladin Decl., Exh. C, Jessen

5 Dep. 134:21-135:20. Furthermore, record evidence indicates that the CIA

6 was aware that the SERE techniques were safely applied to volunteers at

7 SERE, but that there was no assurance that the same would be true if the

8 SERE techniques were applied to detainees; and that this information was 9 provided to the Department of Justice (“DOJ”) Office of Legal Counsel 10 (“OLC”) as it was assessing the EITs’ legality. Defs.’ SOF ¶¶ 150-51, 11 153, 157. 12

13 (b) Objected to as irrelevant to the resolution of the issues presented in

14 Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. EVID. 401, 402) as

15 there is no evidence in the record that any Plaintiff was “made to believe

16 that [his] interrogation could last for the rest of [his] natural [life].”

17 Disputed that US Bates 001957-58 supports the broad proposition that 18 “prisoners were made to believe that their interrogation could last for the 19 rest of their natural lives[.]” Rather, the document indicates that on 20 August 12, 2002, Zubaydah was told that he would not be leaving the 21

22 interrogation room for a very long time. Ladin Decl., Exh. J at U.S. Bates

23 001957-58. Not contested for purposes of Plaintiffs’ Motion that SERE

24 volunteers knew the start and end date of their training, and could end it at

25 any time.

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1 Plaintiffs’ Response: 2 (a) Response—No record dispute. 3

4 (b) Response—No record dispute. Plaintiffs and other CIA prisoners had no

5 way of knowing when they would ever be released or their interrogations

6 would end, and Gul Rahman’s interrogation did last for the rest of his life,

7 as he was killed as a result of it. ECF No. 176-25 at U.S. Bates 001407.

8 The differences between the SERE program and real-world interrogations 9 are directly relevant to Defendants’ mens rea, as well as to rebut 10 Defendants’ defense that their methods were safe because they were based 11 on SERE. 12

14 25. Plaintiffs’ Fact: Waterboarding as carried out by Defendants was different

15 from the technique used in SERE training: it involved much larger volumes

16 of water, and Defendant Jessen or Defendant Mitchell acknowledged that

17 Defendants’ method was “different because it is ‘for real’ and is more 18 poignant and convincing.” Ladin Decl., Exh. K at U.S. Bates 001376. 19

20 Defendants’ Response: Objection—waterboarding. 21

22 Also, disputed. Waterboarding as applied by Defendants on HVDs was

23 consistent with that used in SERE training. In SERE, “the subject is

24 immobilized on his back, and his forehead and eyes covered with a cloth.

25 A stream of water is directed at the upper lip. Resistant subjects then have

26 the cloth lowered to cover the nose and mouth, as the water continues to

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 be applied, fully saturating the cloth, and precluding the passage of air . . . 2 . this process can continue for several minutes, and involve up to 15 3

4 canteen cups of water.” OIG Report at US Bates 001489. This is

5 consistent with US Bates 001376’s description of waterboarding an HVD:

6 the Agency interrogator “continuously applied large volumes of water to a

7 cloth that covered the detainee’s mouth and nose.” Ladin Decl., Exh. K at

8 U.S. Bates 001376. 9 Also, the statement in US Bates 001376 cannot be attributed to 10 Defendants. The document identifies the speaker as “one of the 11 psychologists/interrogators”, and psychologists with a SERE background 12

13 other than Defendants formed part of Zubaydah’s interrogation team.

14 Defs.’ SOF ¶¶ 69, 146.

16 Plaintiffs’ Response: Response—No record dispute. The OIG Report,

17 which Defendants cite to argue that Fact #25 is disputed, is unequivocal: 18 “OIG’s review of the videotapes revealed that the waterboard 19 technique employed at [redacted] was different from the technique

20 as described in the DoJ opinion and used in SERE training. The difference was in the manner in which the detainee’s breathing was 21 obstructed. At the SERE School and in the DoJ opinion, the

22 subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of 23 water to the cloth in a controlled manner. By contrast, the Agency 24 interrogator [redacted] continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the 25 psychologists/interrogators acknowledged that. . . the Agency’s 26 technique is different because it is ‘for real’ and is more poignant

and convincing.’” 27 PLAINTIFFS’ REPLY TO DEFENDANTS’ AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON RESPONSE TO PLAINTIFFS’ SUMF FOUNDATION No. 15-CV-286 (JLQ) 901 Fifth Ave, Suite 630 Seattle, WA 98164 Page | 28 (206) 624-2184

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 ECF No. 176-25 at U.S. Bates 001376. Whether or not there was another 2 SERE psychologist, there were no other psychologist/interrogators who 3

4 waterboarded prisoners, so the report’s quotation is necessarily of

5 Defendants. See , ECF No. 172 ¶ 10 (Mitchell Decl.); ECF No. 171 ¶ 5

6 (Jessen Decl.).

8 26. Plaintiffs’ Fact: Coercive methods were also used on detainees in the CIA 9 program with a higher frequency than permitted in the SERE program. Ladin 10 Decl., Exh. C, Jessen Dep.156. 11

13 Defendants’ Response: Disputed. Plaintiffs misrepresent Dr. Jessen’s

14 cited testimony. Dr. Jessen testified that the SERE pressures were applied

15 to detainees “the same as they were applied in the SMU training, but their

16 frequency was more in the CIA Program.” Dr. Jessen does not state that

17 the pressures were applied more “than permitted in the SERE program” 18 and Plaintiffs present no evidence to support this statement. Ladin Decl., 19 Exh. C, Jessen Dep. 156:14-24. 20

22 Plaintiffs’ Response: Response—No record dispute.

24 27. Plaintiffs’ Fact: (a) Defendants knew the effect of their proposed methods

25 might be different for prisoners than for volunteers. Ladin Decl., Exh. C,

26 Jessen Dep. 127:11-24. (b) But when Defendant Mitchell presented his

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 proposal to the Director of the CIA and the head of CTC, he did not mention 2 that fact. Ladin Decl., Exh. A, Mitchell Dep. 281:4¬16. 3

5 Defendants’ Response: Defendants object to this “fact” as compound.

6 (a) Disputed. Plaintiffs mischaracterize Dr. Jessen’s cited testimony. When

7 asked, “In your mind, is there a difference between having these things pressures

8 done to you by a hostile government versus in training?”, Dr. Jessen responded, 9 “In terms of how they’re employed, no; in terms of where you’re at emotionally, 10 I think it is different . . . I think you’d have more concern about the outcome.” 11 Ladin Decl., Exh. C, Jessen Dep. 127:11-24. 12

13 Furthermore, the record evidence indicates that the CIA was aware that the

14 SERE techniques were safely applied to volunteers at SERE, but that there was

15 no assurance that the same would be true if the SERE techniques were applied to

16 detainees; and that this information was provided to the OLC as it was assessing

17 the EITs’ legality. Defs.’ SOF ¶¶150-51, 153, 157. 18 (b) Disputed. Plaintiffs mischaracterize Dr. Mitchell’s cited testimony. Dr. 19 Mitchell testified that in one specific meeting with the Director of the CIA and 20 Jose Rodriguez, he did not mention that “the application of SERE techniques, 21

22 which had been able to be used for many years without producing problems,

23 might nonetheless produce problems in a different setting where the subject is

24 not there voluntarily.” The cited testimony does not indicate that Dr. Mitchell

25 was “presenting” a “proposal” nor that this issue was not discussed at some

26 other time. Ladin Decl., Exh. A, Mitchell Dep. 277:11¬281:16. Further, as set

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1 out in 27(a), the CIA was aware that the SERE techniques were safely applied to 2 volunteers at SERE, but that there was no assurance that the same would be true 3

4 if the SERE techniques were applied to detainees.

6 Plaintiffs’ Response:

7 (a) Response—No record dispute.

8 (b) Response—No record dispute. Defendants point to no evidence 9 supporting their speculation that Defendants actually informed the CIA 10 of the differences between SERE and real world interrogations “at 11 some other time.” Defendants’ objections to the terms “presenting” 12

13 and “proposal” ignore Defendant Mitchell’s own description of this

14 meeting: “I remember illustrating some of the techniques that were

15 harder to visualize with hand gestures and occasionally getting out of

16 my seat to demonstrate, because that sometimes seemed like the

17 clearest way to get across what was being proposed. Tenet and Rizzo 18 listened intently and asked lots of questions. They were particularly 19 interested in the fact that all of the techniques we were discussing had 20 been used on thousands of high-risk of capture U.S. military personnel 21

22 for fifty-plus years.” McGrady Decl., Exh. F at MJ00022638

23 (emphasis added).

25 28. Plaintiffs’ Fact: Defendants told the CIA that these techniques were likely to

26 be safe to use and effective at extracting information from Abu Zubaydah.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Ladin Decl., Exh. B, Rodriguez Dep. 98:7-11; Ladin Decl., Exh. C, Jessen 2 Dep. 113:4-22. 3

5 Defendants’ Response: Objection—Zubaydah. Also, disputed. Plaintiffs

6 mischaracterize the cited testimony of Dr. Jessen and Rodriguez. Dr.

7 Jessen testified that he was told Dr. Mitchell and Rodriguez had a

8 conversation during which Dr. Mitchell said SERE techniques “had been 9 used for decades without ill effect, and even though the students knew 10 they were in training, they still tended to give up information they were 11 supposed to protect and that that might be something that they could use 12

13 that would provide more effectiveness and predictable safety.” Exh. C,

14 Jessen Dep. 113:4-22. Additionally, Rodriguez testified that Drs. Mitchell

15 and Jessen told him that there was “a good chance [the SERE program

16 techniques] could work.” Ladin Decl., Exh. B, Rodriguez Dep. 98:7-11.

17 Additionally, Dr. Mitchell did not opine on the likely safety of the 18 techniques as applied to detainees, but told the CIA to conduct its own 19 due diligence. Mitchell Dep. at 189:8-22. Furthermore, the record 20 evidence indicates that the CIA was aware that the SERE techniques were 21

22 safely applied to volunteers at SERE, but that there was no assurance that

23 the same would be true if the SERE techniques were applied to detainees;

24 and that this information was provided to the OLC as it was assessing the

25 EITs’ legality. Defs.’ SOF ¶¶ 150-51, 153, 157.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs’ Response: Response—No record dispute. Response— 2 Zubaydah. Further, Plaintiffs clarify that Defendant Mitchell’s testimony 3

4 was not that he “told the CIA to conduct its own due diligence,” but that

5 this was his “expectation.” McGrady Decl., Exh. C, Mitchell Dep.

6 189:16-22. In his book, Defendant Mitchell explained that he did not learn

7 about the Senate Committee on Armed Services’ Report on the Inquiry

8 into the Treatment of Detainees in U.S. Custody (“SASC”) “due 9 diligence” until 2007, when SASC investigators showed him documents 10 stating “that SERE interrogation methods, including the waterboard, could 11 be used on detainees with minimal risk of physical or mental harm.” 12

13 McGrady Decl., Exh. F at MJ00022891. He explained that he was

14 “floored” by this conclusion and that “this was the first [he’d] heard about

15 it.” Id.

17 29. Plaintiffs’ Fact: (a) Defendants inflicted many of the methods they had 18 proposed over the 19-day “Aggressive Phase” of Abu Zubaydah’s 19 interrogation. Am. Answer, ECF No. 77 ¶ 51; Ladin Decl., Exh. L at U.S. 20 Bates 002382. (b) These methods “were applied in varying combinations, 24 21

22 hours a day.” Ladin Decl., Exh. M at U.S. Bates 002021.

24 Defendants’ Response: Object to this “fact” as compound. Objection—

25 Zubaydah.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 (a) Not contested for purposes of Plaintiffs’ Motion that at the 2 direction and under the supervision of the CIA, Defendants interrogated 3

4 Zubaydah for 19 days using many of the EITs they had proposed to the

5 CIA via the July 2002 Memo. Am. Answer, ECF No. 77 ¶ 51; Ladin

6 Decl., Exh. L at U.S. Bates 002382. Defs.’ SOF ¶¶ 176-181, 186-189.

7 (b) Disputed. US Bates 002021indicates that for the first 14 days,

8 psychological and physical pressures were applied to Zubaydah in varying 9 combinations, 24 hours a day. There is no evidence this occurred for 19 10 days. Ladin Decl., Exh. M at U.S. Bates 002021. 11

13 Plaintiffs’ Response: Response—Zubaydah.

14 (a) None.

15 (b) Response—No record dispute. U.S. Bates 002382 states clearly that

16 “following 19 days in the aggressive phase of interrogation,” the “team

17 assessment is that we have successfully broken subject’s willingness to 18 withhold threat and intelligence information.” ECF No. 182-12 at U.S. 19 Bates 002382. Moreover, contrary to Defendants’ assertion, cables from 20 after the fourteenth day indicate that the techniques continued, including, 21

22 for example, waterboarding Abu Zubaydah on the sixteenth day of the

23 aggressive phase. See, e.g., ECF No. 182-23 at U.S. Bates 001807–08;

24 ECF No. 182-24 at U.S. Bates 002380; ECF No. 182-13 at U.S. Bates

25 002022.

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1 30. Plaintiffs’ Fact: (a) On the first day of the aggressive phase of Abu 2 Zubaydah’s interrogation, Defendants began using their proposed methods 3

4 on him. Either Defendant Mitchell or Defendant Jessen delivered to Abu

5 Zubaydah the “very firm and pointed message that things would continue to

6 get worse for [him]” but that “at any time [Abu Zubaydah] could stop the

7 situation from getting worse by providing the required information.” Ladin

8 Decl., Exh. N at U.S. Bates 001757. 9 (b) Abu Zubaydah “continued to deny any additional knowledge.” 10 Defendants told Abu Zubaydah “their job was to obtain information and 11 that if [he] did not cooperate he was only going to bring more misery onto 12

13 himself.” Defendants then waterboarded Abu Zubaydah, who “coughed

14 and vomited in small amounts but continued to maintain his position that

15 he did not have any additional information other than what he had already

16 provided” to the FBI, which had not used Defendants’ methods. Id. at

17 U.S. Bates 001758. 18

19 Defendants’ Response: Defendants object to this “fact” as compound. 20 Also, Objection— Zubaydah. 21

22 (a) Not contested for purposes of Plaintiffs’ Motion that at the

23 direction and under the supervision of the CIA, Defendants began

24 interrogating Zubaydah as set out in US Bates 001755-59. Defs.’ SOF

25 ¶¶176-181, 186-189.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 (b) Objection—waterboarding. Defendants dispute what information 2 Zubaydah provided. US Bates 001758 states Zubaydah “did not have any 3

4 additional information other than what he had already provided to FBI SA

5 [REDACTED] and [REDACTED].” Ladin Decl., Exh. N at U.S. Bates

6 001758. Further, Plaintiffs offer no evidence about interrogation methods

7 used by the FBI.

9 Plaintiffs’ Response: Response—Zubaydah. 10 (a) None. 11 (b) Response—Waterboard. Response—No record dispute. It is 12

13 undisputed that FBI agents left before the “aggressive phase” began and

14 Defendants began inflicting their methods on Abu Zubaydah, as the FBI

15 refused to be a party to Defendants’ methods. See Office of Professional

16 Responsibility, Rep. on Investigation into the OLC’s Memoranda

17 Concerning Issues Relating to the CIA’s Use of ‘Enhanced Interrogation 18 Techniques’ on Suspected Terrorists (2009), ECF No. 176-11 at U.S. 19 Bates 000640. 20

22 31. Plaintiffs’ Fact: On the second day of the “aggressive phase,” Defendants

23 again inflicted a variety of the methods they had proposed on Abu Zubaydah,

24 including walling, stress positions, confinement boxes, and waterboarding.

25 Abu Zubaydah again vomited after Defendants waterboarded him, and again

26 provided “persistent denials” that he possessed undisclosed threat

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 information. The interrogation team nonetheless concluded that “there still 2 appears to be areas that subject is withholding information on - we have not 3

4 pinpointed what those areas are.” Ladin Decl., Exh. O at U.S. Bates 001801.

6 Defendants’ Response: Objection—Zubaydah and Objection—

7 waterboarding.

8 Additionally, the quoted language in US Bates 001801 cannot be 9 attributed to Defendants. The sender is redacted and the interrogation 10 team included many individuals. Defs.’ SOF ¶ 168. Furthermore, all 11 cables went through the COB without review from Defendants and 12

13 Defendants were unable to draft cables during this time period. Jessen

14 Dep. 143:2-13; Defs.’ SOF ¶ 298.

16 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard.

17 Response—No record dispute. Plaintiffs did not “attribute[]” the cable to 18 Defendants. As Plaintiffs accurately described, the cable was sent by the 19 interrogation team, of which Defendants were members—which is 20 undisputed. 21

23 32. Plaintiffs’ Fact: On the third day of the “aggressive phase,” Defendants used

24 their walling method on Abu Zubaydah while demanding “What is it that you

25 do not want us to know?” After inflicting several more of the methods they

26 had proposed, Defendants again told Abu Zubaydah “that he could stop the

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 process at any time,” while Abu Zubaydah “continued with his appeal that he 2 has told all that he has and muttered ‘help me.’“ Defendants waterboarded 3

4 Abu Zubaydah and placed him in a confinement box, after which he

5 “appeared despondent” and “cried in an apparently genuine fashion.”

6 Defendants stuffed Abu Zubaydah back in a box for several hours.

7 Afterwards, Abu Zubaydah “started crying and claimed he had given us

8 everything.” The interrogation team noted “At the risk of stating the obvious, 9 there are potentially two reasons” that Abu Zubaydah had not provided the 10 threat information that Defendants demanded: either he was concealing it, or 11 actually did not have the information that his interrogators wanted. The 12

13 interrogation team noted that, in their opinion, “it is premature” to decide

14 which reason explained the lack of new threat information. Ladin Decl., Exh.

15 P at U.S. Bates 001804-1805.

17 Defendants’ Response: Objection—Zubaydah and Objection— 18 waterboarding. Additionally, quoted language in US Bates 001804-05 19 cannot be attributed to Defendants for the reasons asserted in #31 above. 20 Defendants do not contest for purposes of Plaintiffs’ Motion that at the 21

22 direction and under the supervision of the CIA, Defendants interrogated

23 Zubaydah as set out in US Bates 001803-06. Ladin Decl., Exh. P at U.S.

24 Bates 001803-1806; Defs.’ SOF ¶¶ 176-181, 186-189.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard. 2 Response—No record dispute. Plaintiffs did not “attribute[]” the cable to 3

4 Defendants. As Plaintiffs accurately described, the cable was sent by the

5 interrogation team, of which Defendants were members—which is

6 undisputed.

8 33. Plaintiffs’ Fact: On the fourth day of the “aggressive phase,” after using their 9 walling and slapping methods on Abu Zubaydah, Defendants told him that 10 they would stop inflicting their methods on him if he provided the threat 11 information they demanded. They warned him not to make up an answer. 12

13 Abu Zubaydah “began to whimper and was visibly trembling; he continued

14 to deny he had any new info to give.” Defendants then waterboarded Abu

15 Zubaydah and left his cell. When they returned, they “noted that [Abu

16 Zubaydah’s] distress level increased the moment the team entered the cell, a

17 sign that the conditioning strategy was working.” Ladin Decl., Exh. Q at U.S. 18 Bates 001943-44. 19

20 Defendants’ Response: Objection—Zubaydah and Objection— 21

22 waterboarding. Defendants do not contest for purposes of Plaintiffs’

23 Motion that at the direction and under the supervision of the CIA,

24 Defendants interrogated Zubaydah as set out in US Bates 001942-44.

25 Ladin Decl., Exh. Q at U.S. Bates 001942-44; Defs.’ SOF ¶¶ 176-181,

26 186-189.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

2 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard. 3

5 34. Plaintiffs’ Fact: On the fifth day of the “aggressive phase,” Defendants

6 inflicted a series of their methods on Abu Zubaydah when he told them he

7 did not have the information they demanded. They told him “that he had the

8 choice to stop this treatment at any time by providing the information we 9 sought, that he should not waste our time with denials, and that he better not 10 tell any lies.” Ladin Decl., Exh. R at U.S. Bates 001946. They observed that 11 he “continued to cry.” He displayed “despair and helplessness” throughout 12

13 the day. Defendants continued to inflict their methods on him. Id. at U.S.

14 Bates 001947.

16 Defendants’ Response: Objection—Zubaydah and Objection—

17 waterboarding. Defendants do not contest for purposes of Plaintiffs’ 18 Motion that at the direction and under the supervision of the CIA, 19 Defendants interrogated Zubaydah as set out in US Bates 001945-48. 20 Ladin Decl., Exh. R at U.S. Bates 001945-48; Defs.’ SOF ¶¶ 176-181, 21

22 186-189.

24 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard.

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1 35. Plaintiffs’ Fact: By the sixth day of the “aggressive interrogation phase,” 2 Defendants and the rest of the interrogation team reached a “collective 3

4 preliminary assessment that it is highly unlikely [Abu Zubaydah] has

5 actionable new information about current threats to the United States.” They

6 nonetheless resolved that “the team plans to maintain the current level of

7 psychological pressures for the time being to develop and refine this

8 preliminary assessment.” Ladin Decl., Exh. S at U.S. Bates 002341. The 9 medical officer at the site also assessed that “under current medical 10 intervention subject’s medical status is likely to deteriorate to an 11 unacceptable level over the next two weeks, and thus will continue to be 12

13 closely monitored.” Id.

15 Defendants’ Response: Objection—Zubaydah. Defendants dispute that

16 the cited cable was sent on the sixth day of Zubaydah’s interrogation. The

17 cable was sent on August 10, 2002, which was the seventh day of 18 Zubaydah’s interrogation. Exh. S at U.S. Bates 002341; Ladin Decl., Exh. 19 T at U.S. Bates 001955-56 (“The teams assessment remains the same 20 [REDACTED] on 10 August 02 -day seven of the aggressive 21

22 interrogation phase”).

23 Defendants further dispute the implication that they had the ability to stop

24 Zubaydah’s interrogation. US Bates 002341 states that on the seventh day

25 of the interrogation, the interrogation team did “not recommend escalating

26 the pressure” on Zubaydah and requested that a team from CIA

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Headquarters (“HQS”) visit the site where Zubaydah was being 2 interrogated within the next week, or at least arrange a videoconference to 3

4 “discuss the team’s preliminary assessment and post-interrogation steps.”

5 Ladin Decl., Exh. S at U.S. Bates 002340-42. In response, HQS sent a

6 cable to the site the same day demanding that Defendants “stay the

7 course” and “the aggressive phase must continue.” Defs.’ SOF ¶¶ 194-95.

8 Additionally, quoted language in US Bates 002341 cannot be attributed to 9 Defendants for the reasons asserted in #31 above. 10

11 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard. 12

13 Response—No record dispute. Plaintiffs did not “attribute[]” the cable to

14 Defendants. As Plaintiffs accurately described, the cable was sent by the

15 interrogation team, of which Defendants were members—which is

16 undisputed.

18 36. Plaintiffs’ Fact: On the seventh day of the “aggressive interrogation phase,” 19 Defendants again subjected Abu Zubaydah to 24 hours of their methods, and 20 he again did not provide any of the new threat information they demanded. 21

22 Ladin Decl., Exh. T at U.S. Bates 001955-56.

24 Defendants’ Response: Objection—Zubaydah. Defendants do not contest

25 that at the direction and under the supervision of the CIA, Defendants

26 interrogated Zubaydah as set out in US Bates 001955-56. Ladin Decl.,

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Exh. T at U.S. Bates 001955-56; Defs.’ SOF ¶¶ 176-181, 186-189, 194- 2 95. 3

5 Plaintiffs’ Response: Response—Zubaydah.

7 37. Plaintiffs’ Fact: On the eighth day of the “aggressive interrogation phase,”

8 Defendants again subjected Abu Zubaydah to their methods, and again 9 acquired no new threat information. Defendants told Abu Zubaydah that “the 10 only way he was going out of that room was in the large box in the corner. 11 They prompted him to tell them what the box was shaped like; he whispered 12

13 ‘a coffin.’ Interrogators then said subject would not be leaving the room for a

14 long, long, long time, because he was in no imminent danger of dying.”

15 Ladin Decl., Exh. J at U.S. Bates 001957-58. While Defendants inflicted

16 their methods on Abu Zubaydah, he was “trembling and shaking’ and

17 “frantically pleaded” that “he had given everything he knew.” Id. at U.S. 18 Bates 001959. 19

20 Defendants’ Response: Objection—Zubaydah. Defendants further 21

22 dispute the implication that Defendants had the ability to stop Zubaydah’s

23 interrogation. Exh. J at U.S. Bates 001957-60. Defs.’ SOF ¶¶ 176-181,

24 186-189, 194-95. On this same day, the interrogation team again told

25 HQS that they did not think Zubaydah possessed any further information

26 about new or current threats against the United States and that they

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 “looked forward to the upcoming [videoconference]” so that HQS could 2 see the interrogation first hand. Ladin Decl., Exh. U at U.S.Bates 002345- 3

4 46.

6 Plaintiffs’ Response: Response—Zubaydah. Response—No record

7 dispute.

9 38. Plaintiffs’ Fact: The interrogation team reported that Defendants’ use of the 10 methods they proposed “on a 24/7 basis for the last eight days” had 11 “produced the desired results of almost total compliance on subject’s part.” 12

13 Ladin Decl., Exh. U at U.S. Bates 002346. However, the use of Defendants’

14 methods on Abu Zubaydah had not produced any new threat information, and

15 Abu Zubaydah’s “persistent responses” had been “‘I have no more’ or ‘I

16 have nothing more’ or ‘I told you everything.” Id.

18 Defendants’ Response: Objection—Zubaydah. Defendants dispute the 19 assertion that Zubaydah did not provide any new useful information. The 20 document cited by Plaintiffs states that Zubaydah had begun providing 21

22 “new nuggets of information” about past activities. Ladin Decl., Exh. U at

23 U.S. Bates 002345-47; Defs.’ SOF ¶¶ 176-181, 186-189, 194-95.

24 Additionally, quoted language in US Bates 002346 cannot be attributed to

25 Defendants for the reasons asserted in #31 above.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Defendants do not contest that at the direction and under the supervision 2 of the CIA, Defendants interrogated Zubaydah as set out in US Bates 3

4 002345-47.

6 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard.

7 Response—No record dispute. Defendants’ argument that Zubaydah

8 provided information about “past activities” does not create a dispute 9 about whether he provided threat information; as the cable states, he did 10 not. In addition, Plaintiffs did not “attribute[]” the cable to Defendants. As 11 Plaintiffs accurately described, the cable was sent by the interrogation 12

13 team, of which Defendants were members—which is undisputed.

15 39. Plaintiffs’ Fact: On the eleventh day of the “aggressive phase,” the

16 interrogation team reported that “subject exhibited initial apprehension

17 followed by complete compliance to all verbal and nonverbal commands for 18 movement. . . . He seemed to display a desperate resignation at his inability 19 to convince the interrogators that he was not holding back information. . . . 20 When the interrogators told him that his protests of ignorance regarding 21

22 additional information about threats against the U.S. would not stop them

23 from using the water board, subject’s eye teared, his breathing increased, and

24 he appeared desperate.” Ladin Decl., Exh. V at U.S. Bates 002364.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Defendants’ Response: Objection—Zubaydah. Defendants further 2 dispute the implication that Defendants had the ability to stop Zubaydah’s 3

4 interrogation. Ladin Decl., Exh. V at U.S. Bates 002363-65; Defs.’ SOF

5 ¶¶ 176-181, 186-189, 194-95. The day before, on August 13, 2002, HQS

6 acknowledged that the interrogation team believed that Zubaydah had no

7 additional information on current threats and HQS participated in a

8 videoconference during which EITs were applied to Zubaydah. HQS 9 ordered that the interrogation team “continue with the aggressive 10 interrogation strategy for the next 2-3 weeks” because “the HQS 11 consensus” was that Zubaydah possessed additional information that was 12

13 “critical to saving American lives.” Specifically, HQS directed the

14 interrogation team to continue waterboarding Zubaydah and apply other

15 interrogation pressures. Defs.’ SOF ¶¶ 198-99, 201-03.

16 Additionally, quoted language in US Bates 002364 cannot be attributed to

17 Defendants for the reasons asserted in #31 above. 18 Defendants do not contest that at the direction and under the supervision 19 of the CIA, they interrogated Zubaydah as set out in US Bates 001807-08. 20 Ladin Decl., Exh. W at U.S. Bates 001807-08; Defs.’ SOF ¶¶ 176-181, 21

22 186-189, 194-95, 198-99, 201-03.

24 Plaintiffs’ Response: Response—Zubaydah. Response—No record

25 dispute. Also, Plaintiffs did not “attribute[]” the cable to Defendants. As

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs accurately described, the cable was sent by the interrogation 2 team, of which Defendants were members—which is undisputed. 3

5 40. Plaintiffs’ Fact: On the fifteenth day of the “aggressive phase,” Abu

6 Zubaydah was “compliant and totally submissive,” and “continue[d] to be

7 fearful of the interrogators. He “continued to maintain that he knows of no

8 threats to the United States or against United States interests beyond what he 9 has already provided.” Defendants walled Abu Zubaydah, and “repeatedly 10 and aggressively pressed” him for new details. He “did not have any 11 significant details on this topic beyond what he already provided,” and the 12

13 interrogation team noted that “thus far” the aggressive phase had not resulted

14 in any “significant actionable info beyond previously provided details.”

15 Ladin Decl., Exh. W at U.S. Bates 001807-08.

17 Defendants’ Response: Objection—Zubaydah and Objection— 18 waterboarding. 19 Defendants further dispute the implication that Defendants had the ability 20 to stop Zubaydah’s interrogation Ladin Decl., Exh. X at U.S. Bates 21

22 002379-81; Defs.’ SOF 11 176-181, 186-189, 194-95, 198-99, 201-03. At

23 this time, in response to the request from the interrogation team to stop

24 using EITs, HQS had sent a team to the site where Zubaydah was being

25 interrogated, GREEN. The HQS team arrived on August 16, 2002 (three

26 days before this cable), and the HQS team became actively involved in

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Zubaydah’s interrogation, including observing this interrogation. Defs.’ 2 SOF ¶ 204-06. 3

4 Additionally, quoted language in US Bates 002380 cannot be attributed to

5 Defendants for the reasons asserted in #31 above. Defendants do not

6 contest that at the direction and under the supervision of the CIA, they

7 interrogated Zubaydah as set out in US Bates 001807-08. Ladin Decl.,

8 Exh. W at U.S. Bates 001807-08; Defs.’ SOF ¶¶ 176-181, 186-189, 194- 9 95, 198-99, 201-03. 10

11 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard. 12

13 Response—No record dispute. Plaintiffs did not “attribute[]” the cable to

14 Defendants. As Plaintiffs accurately described, the cable was sent by the

15 interrogation team, of which Defendants were members—which is

16 undisputed.

18 41. Plaintiffs’ Fact: On the sixteenth day of the “aggressive phase,” Abu 19 Zubaydah “was repeatedly pressured and instructed that revealing the 20 requested information would stop the procedure.” He “again stated that he 21

22 had no information in addition to that which he had already provided, and

23 alternatively begged and cried that procedure be stopped.” Defendants then

24 waterboarded Abu Zubaydah to the point where he exhibited “involuntary

25 body (leg, chest and arm) spasms.” The interrogation team then resumed the

26 questioning, while Abu Zubaydah “continued to cry, and claim ignorance of

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 any additional information. This resulted in a second full-face watering. At 2 the onset of involuntary stomach and leg spasms, subject was again elevated 3

4 to clear his airway, which was followed by hysterical pleas. Subject was

5 distressed to the level that he was unable to effectively communicate or

6 adequately engage the team.” Defendants then stuffed Abu Zubaydah into a

7 box and bombarded him with noise to continue his “elevated level of

8 disorientation.” Ladin Decl., Exh. X at U.S. Bates 002380. 9

10 Defendants’ Response: Objection—Zubaydah and Objection— 11 waterboarding. 12

13 Defendants further dispute the implication that Defendants had the ability

14 to stop Zubaydah’s interrogation Ladin Decl., Exh. X at U.S. Bates

15 002379-81; Defs.’ SOF ¶¶ 176-181, 186-189, 194-95, 198-99, 201-03. At

16 this time, in response to the request from the interrogation team to stop

17 using EITs, HQS had sent a team to the site where Zubaydah was being 18 interrogated, GREEN. The HQS team arrived on August 16, 2002 (three 19 days before this cable), and the HQS team became actively involved in 20 Zubaydah’s interrogation, including observing this interrogation. Defs.’ 21

22 SOF ¶ 204-06.

23 Additionally, quoted language in US Bates 002380 cannot be attributed to

24 Defendants for the reasons asserted in #31 above. Defendants do not

25 contest that at the direction and under the supervision of the CIA, they

26 interrogated Zubaydah as set out in US Bates 001807-08. Ladin Decl.,

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Exh. W at U.S. Bates 001807-08; Defs.’ SOF ¶¶ 176-181, 186-189,194- 2 95, 198-99, 201-03. 3

5 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard.

6 Response—No record dispute. Plaintiffs did not “attribute[]” the cable to

7 Defendants. As Plaintiffs accurately described, the cable was sent by the

8 interrogation team, of which Defendants were members—which is 9 undisputed. 10

11 42. Plaintiffs’ Fact: On the seventeenth day of the aggressive phase, Abu 12

13 Zubaydah “cried and begged the interrogators to believe him when he said

14 that he was not holding back information as he was placed in position for

15 watering. Two iterations of the watering cycle were applied. During the

16 watering he cried, begged and pleaded; finally becoming hysterical.” Ladin

17 Decl., Exh. M at U.S. Bates 002022. 18

19 Defendants’ Response: Objection—Zubaydah and Objection— 20 waterboarding. Defendants do not contest that at the direction and under 21

22 the supervision of the CIA, Defendants interrogated Zubaydah as set out

23 in US Bates 002019-23. Ladin Decl., Exh. M at U.S. Bates 002019-23;

24 Defs.’ SOF 11 176-181, 186-189, 194-95, 198-99, 201-06.

26 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

2 43. Plaintiffs’ Fact: After seventeen days of the aggressive phase, the 3

4 interrogation team reported that “psychological and physical pressures have

5 been applied to induce complete helplessness, compliance and cooperation

6 from the subject. Our goal was to reach the stage where we have broken any

7 will or ability of subject to resist or deny providing us information

8 (intelligence) to which he had access.” Ladin Decl., Exh. M at U.S. Bates 9 002020. 10

11 Defendants’ Response: Objection—Zubaydah. Defendants further 12

13 respond that the quoted language cannot be attributed to the “interrogation

14 team” for the reasons asserted in #31 above. Also, other documents

15 suggest that the team from HQS, not the Zubaydah interrogation team,

16 drafted this cable. Ladin Decl., Exh. K at U.S. Bates 001423-24 (“A team

17 of senior CTC officers traveled from Headquarters to [REDACTED] to 18 assess Abu Zubaydah’s compliance and witnessed the final waterboard 19 session, after which, they reported back to Headquarters that the EITs 20 were no longer needed on Abu Zubaydah.”). 21

23 Plaintiffs’ Response: Response—Zubaydah. Contrary to Defendants’

24 claim, the quoted language was sent from the interrogation team (of which

25 it is undisputed Defendants were members) to HQS, as indicated by the

26 fact that the cable “request[s] HQS concurrence with the program plan.”

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 ECF No. 182-13 at U.S. Bates 002019. Moreover, only the interrogation 2 team was present and could report on the full seventeen days of the 3

4 “aggressive phase” that had taken place, because HQS observers arrived

5 only at the end of phase. Finally, while Plaintiffs did not assert that

6 Defendants sent this specific cable, the Senate Select Committee on

7 Intelligence report titled “Committee Study of the Central Intelligence

8 Agency’s Detention and Interrogation Program” (“SSCI Report”) 9 concluded that CIA records show that it was specifically Defendants who 10 authored this cable. See ECF No. 195-20 at 46 (SSCI Report). 11

13 44. Plaintiffs’ Fact: (a) Defendants had previously claimed Abu Zubaydah was a

14 skilled resistor, Ladin Decl., Exh. Y at U. S. Bates 001771; Ladin Decl., Exh.

15 A, Mitchell Dep. 252:6-255:21, (b) and CIA Headquarters thought Abu

16 Zubaydah might still be withholding information and that the program

17 Defendants had recommended might yet extract new threat information from 18 Abu Zubaydah. Ladin Decl., Exh. E at MJ00022666. 19

20 Defendants’ Response: Defendants object to this “fact” as compound. 21

22 Also, Objection— Zubaydah.

23 (a) Disputed. Plaintiffs mischaracterize Dr. Mitchell’s cited testimony

24 and US Bates 001771. Dr. Mitchell testified that Zubaydah employed

25 resistance techniques, not that he was a “skilled resister.” Exh. A,

26 Mitchell Dep. 252:6-255:21.Furthermore, US Bates 001771 cannot be

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 attributed to Defendants for the reasons asserted in #31 above. 2 Nevertheless, all US Bates 001771 states is that Zubaydah “is an 3

4 incredibly strong willed individual which is why he has resisted this

5 long.” Exh. Y at U. S. Bates 001771.

6 (b) Disputed. Plaintiffs mischaracterize the information in

7 MJ00022666. This document discusses the fact that after HQS viewed the

8 videoconference of Zubaydah’s interrogation, HQS still wanted the 9 interrogation to continue, including waterboarding, despite Defendants’ 10 opinion that further interrogation was unnecessary. The document does 11 not discuss why HQS had this view or otherwise support Plaintiffs’ 12

13 implications. Ladin Decl., Exh. E at MJ00022666.

15 Plaintiffs’ Response: Response—Zubaydah.

16 (a) Response—No record dispute. Defendant Mitchell testified about the

17 resistance methods that he assessed Abu Zubaydah was employing. 18 Defendants’ claim that U.S. Bates 001771 cannot be attributed to them is 19 disingenuous: Defendants themselves claim the quoted language in this 20 specific cable as their own. See ECF No. 170 ¶¶ 154–55 (quoting the 21

22 same language and attributing it to “The IC SERE psychologists—in this

23 case Drs. Mitchell and Jessen”).

24 (b) Response—No record dispute. Further, Defendant Mitchell admitted

25 that a reason HQS chose to continue waterboarding Abu Zubaydah was

26 because of Mitchell’s statement that it would take 30 days before an

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 interrogator could confirm that a detainee “either didn’t have the 2 information or was going to take it to the grave with them.” McGrady 3

4 Decl., Exh. F at MJ00022666. Defendant Mitchell added that his

5 representation about a 30-day timeline had “come back to haunt us.” Id.

7 45. Plaintiffs’ Fact: Defendants did not believe that the final waterboarding

8 session would result in the extraction of new threat information, but thought 9 it would demonstrate that Abu Zubaydah was compliant. Ladin Decl., Exh. K 10 at U.S. Bates 001423-24. Defendant Mitchell stated that “[i]t was ugly and 11 hard to do.” Ladin Decl., Exh. E at MJ00022668. 12

14 Defendants’ Response: Objection—Zubaydah and Objection—

15 waterboarding.

16 Dispute the implication that Defendants had the ability to stop Zubaydah’s

17 interrogation. US Bates 001423-24 goes on to state, “According to this 18 senior officer, the decision to resume use of the waterboard on Abu 19 Zubaydah was made by senior officers of the DO. A team of senior CTC 20 officers traveled from Headquarters to [REDACTED] to assess Abu 21

22 Zubaydah’s compliance and witnessed the final waterboard session, after

23 which, they reported back to Headquarters that the EITs were no longer

24 needed on Abu Zubaydah. Ladin Decl., Exh. K at U.S. Bates 001423-24.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs’ Response: Response—Zubaydah. Response—Waterboard. 2 Response—No record dispute. 3

5 46. Plaintiffs’ Fact: After nineteen days of the aggressive phase Defendants and

6 the rest of the interrogation team issued the “assessment that we have

7 successfully broken subject’s willingness to withhold threat and intelligence

8 information. He is presently in a state of complete subjugation and total 9 compliance.” However, they noted that, having failed to acquire the threat 10 information they had demanded over nineteen days, “[t]he issue of whether 11 subject in fact has specific threat information (not already provided) will 12

13 always be open to some conjecture.” Ladin Decl., Exh. L at U.S. Bates

14 002382-83.

16 Defendants’ Response: Objection—Zubaydah. Defendants dispute the

17 implication that they drafted or assented to the language in this cable. The 18 document states the “team assessment” is that “we have successfully 19 broken subject’s willingness to withhold threat and intelligence 20 information. He is presently in a state of complete subjugation and total 21

22 compliance.” It also states “[t]he issue of whether subject in fact has

23 specific threat information (not already provided) will always be open to

24 some conjecture.” Ladin Decl., Exh. L at U.S. Bates 002382-83.

25 Defendants did not draft or review this cable. All cables went through the

26 COB without review from Defendants and Defendants were unable to

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 draft cables during this time period. Jessen Dep. 143:2-13; Defs.’ SOF ¶ 2 298. And the interrogation team included many individuals other than 3

4 Defendants. Defs.’ SOF ¶ 168.

6 Plaintiffs’ Response: Response—Zubaydah. Response—No record

7 dispute. Plaintiffs did not assert that Defendants sent this specific cable,

8 but that it was sent by the interrogation team, of which Defendants were 9 members, and that the cable provides the collective “team assessment”— 10 all of which is undisputed. Defendants elsewhere admit their role in 11 collective team assessments that were sent by cable. See, e.g., ECF No. 12

13 170 ¶ 190 (citing cable and admitting that “After six days of applying

14 EITs to Zubaydah, on August 11, 2002, the interrogation team sent HQS

15 an update indicating that the team collectively thought it was highly

16 unlikely Zubaydah had actionable new information about current threats

17 to the United States.”). 18

19 47. Plaintiffs’ Fact: The interrogation team proposed that, although the 20 “aggressive phase” had been stopped, “we will carefully continue to observe 21

22 [Abu Zubaydah] to ensure he remains ‘compliant’ and [Defendants] will

23 stand by to ‘tune him up’ as required.” After completion of the aggressive

24 phase of Abu Zubaydah’s interrogation, the team planned to “systematically

25 drain him dry of any useful intelligence.” Ladin Decl., Exh. Z at U.S. Bates

26 002390.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

2 Defendants’ Response: Objection—Zubaydah. Disputed. The quoted 3

4 language cannot be attributed to the “interrogation team” or “Defendants”.

5 The sender of US Bates 002388-90 is redacted and not otherwise

6 identified. Ladin Decl., Exh. Z at U.S. Bates 002388-90. Also, Defendants

7 did not draft or review this cable. All cables went through the COB

8 without review from Defendants and Defendants were unable to draft 9 cables during this time period. Jessen Dep. 143:2-13; Defs.’ SOF ¶ 298. 10

11 Plaintiffs’ Response: Response—Zubaydah. Response—No record 12

13 dispute. Plaintiffs did not assert that Defendants sent this specific cable,

14 but that it was sent by the interrogation team, of which Defendants were

15 members—which is undisputed. The cable states “we have applied the

16 techniques aggressively and conditioned subject,” and only the

17 interrogation team—and specifically Defendants—applied the techniques. 18 ECF No. 182-26 at U.S. Bates 002389–90. That the cable is sent from the 19 base, not from headquarters, is clearly demonstrated by the statement in it 20 that “If we succeed, base will return to the aggressive phase tools and use 21

22 every available technique allowed us.” Id. at U.S. Bates 002390.

24 48. Plaintiffs’ Fact: The aggressive interrogation of Abu Zubaydah did not end

25 because he finally provided threat information, but because Defendants and

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 the CIA determined that “it was no longer useful” to continue. Ladin Decl., 2 Exh. C, Jessen Dep. 145:21-46:9, 148:6-12. 3

5 Defendants’ Response: Objection—Zubaydah.

6 Disputed. Plaintiffs misrepresent the record. Dr. Jessen testified that after

7 he and Dr. Mitchell thought further interrogation of Zubaydah was “no

8 longer useful,” the CIA “told us we had to continue” because “we worked 9 for them and they wanted to continue.” In fact, Zubaydah’s interrogation 10 did not stop until the CIA, at Defendants urging, came to GREEN where 11 Zubaydah was being interrogated and witnessed the interrogation. Only 12

13 then did the CIA allow Defendants to stop interrogating because HQS

14 determined that Zubaydah was “total[ly] compliant”. Jessen Dep.

15 145:21¬46:9, 147:18-149:7; Defs.’ SOF ¶¶ 191-207. Furthermore, the

16 record cited by Plaintiffs does not state whether or not Zubaydah provided

17 threat information, and this assertion is not supported by admissible 18 evidence. 19

20 Plaintiffs’ Response: Response—Zubaydah. Response—No record 21

22 dispute.

24 49. Plaintiffs’ Fact: (a) Defendant Mitchell “had a visceral reaction to the tapes”

25 of Defendants’ using their methods on Abu Zubaydah, and “thought they

26 were ugly.” He “didn’t like the fact that the tapes were out there” and

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 recommended they be destroyed. Ladin Decl., Exh. A, Mitchell Dep. 386:10- 2 A23; 389:2-22; 392:10-17. 3

4 (b) A senior CIA official, Jose Rodriguez, agreed: he believed the tapes

5 “would make the CIA look bad,” and, if released, would “almost destroy

6 the clandestine service.” Rodriguez Dep: 92:18-93:25.

7 (c) On Rodriguez’s orders, the CIA destroyed the tapes. Mitchell Dep:

8 387:21-388:7. 9

10 Defendants’ Response: Defendants object to this “fact” as compound. 11 Also, Objection— Zubaydah. 12

13 (a) Disputed. Contrary to Plaintiffs’ statement, Dr. Mitchell did not

14 “recommend” that the tapes be destroyed but “thought [the tapes] should

15 be destroyed”. Ladin Decl., Exh. A, Mitchell Dep. 386:10-23; 389:2-22.

16 (b) Not contested for purposes of Plaintiffs’ Motion. Defendants further

17 object to this “fact” as irrelevant to the resolution of the issues presented 18 in Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. EVID. 401, 19 402). 20 (c) Not contested for purposes of Plaintiffs’ Motion. Defendants further 21

22 object to this “fact” as irrelevant to the resolution of the issues presented

23 in Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. EVID. 401,

24 402).

26 Plaintiffs’ Response: Response—Zubaydah.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 (a) Defendants mischaracterize Defendant Mitchell’s testimony. It was 2 not his private “thought” that the tapes be destroyed. Defendant Mitchell 3

4 testified that he “told . . . the Chief of Clandestine Service[] that I thought

5 those videotapes should be destroyed.” McGrady Decl., Exh. C, Mitchell

6 Dep. 386:15–23.

7 (b) The conclusion of the Chief of the CIA Counterterrorism Center that

8 the videotapes of Defendants applying their methods to Abu Zubaydah 9 would make the CIA look bad and could destroy the CIA clandestine 10 service is relevant to the severity of the methods Defendants employed 11 and their firsthand knowledge of the effects of their use. 12

13 (c) The conclusion of the Chief of the CIA Counterterrorism Center that

14 the videotapes of Defendants applying their methods could destroy the

15 CIA clandestine service, and the fact that the tapes were destroyed, are

16 relevant to the severity of the methods Defendants employed and their

17 firsthand knowledge of the effects of their use. 18

19 50. Plaintiffs’ Fact: Although they had failed to acquire any new threat 20 information, the interrogation team was “satisfied” that they had “applied the 21

22 techniques aggressively and conditioned subject to the point that we can

23 assess he is compliant.” The interrogation team was satisfied that Abu

24 Zubaydah did not possess undisclosed threat information, and observed that

25 the intelligence they had was consistent with what Abu Zubaydah had told

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 them. Ladin Decl., Exh. L at U.S. Bates 002383; Ladin Decl., Exh. Z at U.S. 2 Bates 002389-90. 3

5 Defendants’ Response: Objection—Zubaydah. Disputed. The quoted

6 language in US Bates 002388-90 cannot be attributed to the “interrogation

7 team” or “Defendants” because the sender is redacted and not otherwise

8 identified. Ladin Decl., Exh. Z at U.S. Bates 002388-90. All cables went 9 through the COB without review from Defendants and Defendants were 10 unable to draft cables during this time period. Jessen Dep. 143:2-13; 11 Defs.’ SOF ¶ 298. 12

14 Plaintiffs’ Response: Response—Zubaydah. Response—No record

15 dispute. Plaintiffs did not assert that Defendants sent this specific cable,

16 but that it was sent by the interrogation team, of which Defendants were

17 members. The cable states “we have applied the techniques aggressively 18 and conditioned subject,” and only the interrogation team—and 19 specifically Defendants—applied the techniques. ECF No. 182-26 at U.S. 20 Bates 002389–90. That the cable is sent from the base, not from 21

22 headquarters, is clearly demonstrated by the statement that “If we

23 succeed, base will return to the aggressive phase tools and use every

24 available technique allowed us.” Id. at U.S. Bates 002390.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 51. Plaintiffs’ Fact: Defendant Mitchell later wrote in response to a question as 2 to why Defendants had waterboarded Abu Zubaydah so many times: “As for 3

4 our buddy, he capitulated the frist [sic] time. We chose to expose him over

5 and over until we had a high degree of confidence he wouldn’t hold back. He

6 said we [sic] was ready to talk during the first exposure.” Ladin Decl., Exh.

7 AA at U.S. Bates 002581 (emphasis in original).

9 Defendants’ Response: Objection—Zubaydah and Objection— 10 waterboarding. 11 Defendants dispute the implication that Defendants had the ability to stop 12

13 Zubaydah’s interrogation. As set forth above, Defendants requested to

14 stop waterboarding Zubaydah, but the CIA demanded they continue.

15 Defs.’ SOF ¶¶ 190¬207.

17 Plaintiffs’ Response: Response—No record dispute. Response— 18 Zubaydah. Response—Waterboard. 19

20 52. Plaintiffs’ Fact: Defendant Mitchell, summing up Defendants’ interrogation 21

22 of Abu Zubaydah, wrote: “I left feeling good about what we had

23 accomplished.” Ladin Decl., Exh. E at MJ00022671

25 Defendants’ Response: Objection—Zubaydah. Otherwise, not contested

26 for purposes of Plaintiffs’ Motion.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

2 Plaintiffs’ Response: Response—Zubaydah. 3

5 53. Plaintiffs’ Fact: After seventeen days of the “aggressive phase,” the

6 interrogation team, which included Defendants, who wrote to CIA

7 headquarters that “the aggressive phase” of Abu Zubaydahs’ interrogation

8 “should be used as a template for future interrogation of high value captives.” 9 Ladin Decl., Exh. M at U.S. Bates 002023. 10

11 Defendants’ Response: Objection—Zubaydah. Defendants respond that 12

13 US Bates 002019-23 cannot be attributed to the “interrogation team” or

14 “Defendants”. The sender is redacted and not otherwise identified. Ladin

15 Decl., Exh. M at U.S. Bates 002019-23. All cables went through the COB

16 without review from Defendants and Defendants were unable to draft

17 cables during this time period. Jessen Dep. 143:2-13; Defs.’ SOF ¶ 298. 18

19 Plaintiffs’ Response: Response—Zubaydah. Contrary to Defendants’ 20 claim, the quoted language was incorporated in a cable that was sent from 21

22 the interrogation team (of which it is undisputed Defendants were

23 members) to HQS, as indicated by the fact that the cable “request[s] HQS

24 concurrence with the program plan.” Moreover, only the interrogation

25 team was present and could report on the full seventeen days of the

26 “aggressive phase” that had taken place, because HQS observers arrived

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1 only at the end of that phase. Finally, while Plaintiffs did not assert that 2 Defendants sent this specific cable, the SSCI Report concluded that CIA 3

4 records show that it was specifically Defendants who authored this cable.

5 See ECF No. 195-20 (SSCI Report) at 46.

7 54. Plaintiffs’ Fact: Defendants’ methods became the basis for the CIA’s

8 enhanced interrogation program. Ladin Decl., Exh. B, Rodriguez Dep. 59:19- 9 60:25, 63:6-10. 10

11 Defendants’ Response: Disputed that the interrogation methods posed by 12

13 Defendants were of Zubaydah and later the CIA’s HVD Program.

14 Rodriguez Dep. 183:22-184:25; 186:17-20; Defs.’ SOF ¶¶ 209-11.

16 Plaintiffs’ Response: Response—Speculation about multiple programs.

18 55. Plaintiffs’ Fact: 19 (a) Defendants participated in the program’s initial expansion, opining on 20 potential lessons from Abu Zubaydah’s interrogation for future 21

22 interrogations. Ladin Decl., Exh. BB at U.S. Bates 001611; Ladin Decl.,

23 Exh. DD at U.S. Bates 001891-92.

24 (b) Defendants’ contracts expanded after Abu Zubaydah’s interrogation as

25 well. For example, less than two months after Abu Zubaydah’s

26 interrogation, the value of Defendant Jessen’s contract had already

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1 doubled. Ladin Decl., Exh. CC at U.S. Bates 000086, 000092, 000094. 2

4 Defendants’ Response: Defendants object to this “fact” as compound.

5 (a) Disputed. Plaintiffs mischaracterize the underlying documents.

6 Contrary to Plaintiffs’ statement, the documents do not indicate that

7 Defendants participated in “the program’s” initial expansion. Rather, US

8 Bates 001611 indicates that all those involved in Zubaydah’s 9 interrogation, including CTC Legal, the incoming and outgoing Chief of 10 Base, the Usama Bin Laden taskforce, the Office of Technical Services, 11 IC SERE psychologists, and additional personnel, were asked for 12

13 observations. Similarly, US Bates 001891-92 indicates that in December

14 2002, after the CIA had already designed and operated a training for

15 “High-Value Target” interrogation techniques, Defs.’ SOF ¶ 226, Dr.

16 Mitchell, as “one data point” was asked for feedback from Zubaydah’s

17 interrogation. Ladin Decl., Exh. DD at U.S. Bates 001891-92. As stated at 18 US Bates 001891, CTC was “[c]learly . . . in charge of the operation” and 19 thus the CIA determined how to use the information it requested from 20 Defendants and had complete control over any “expansion.” 21

22 (b) Defendants object to this “fact” as irrelevant to the resolution of the

23 issues presented in Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R.

24 EVID. 401, 402). Disputed that Dr. Mitchell’s contract value increased, as

25 Plaintiffs present no such evidence. Not contested for purposes of

26 Plaintiffs’ Motion that Dr. Jessen’s original contract amount was to be a

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1 maximum amount of $135,000 from July 22, 2002 until July 21, 2003 and 2 that in October 2002, Dr. Jessen’s maximum contract amount was 3

4 increased to $267,500, with the same duration. Ladin Decl., Exh. CC at

5 U.S. Bates 000086, 000092, 000094.

7 Plaintiffs’ Response:

8 (a) Response—No record dispute. Defendants’ assertion that others were 9 also involved in the expansion of the program does not create a dispute. 10 (b) Response—No record dispute. Defendant Mitchell’s contract value 11 increased from $101,600 in April 2002 to $410,100 by September 2002. 12

13 ECF No. 84-1 at U.S. Bates 000047–54. Defendants do not dispute that

14 the value of Defendant Jessen’s contract increased. The value of

15 Defendants’ contracts is relevant to Defendants’ mens rea.

17 56. Plaintiffs’ Fact: Defendants were aware of a phenomenon called “abusive 18 drift”: once coercion was employed, interrogators would tend to exceed any 19 approved limits, resulting in even more severe abuse of prisoners. Ladin 20 Decl., Exh. C, Jessen Dep. 35:24-36:17; Ladin Decl., Exh. E at MJ00022633, 21

22 MJ00022857.

24 Defendants’ Response: Defendants object to this “fact” as irrelevant to

25 the resolution of the issues presented in Plaintiffs’ Motion (FED. R. CIV.

26 P. 56(e)(1); FED. R. EVID. 401, 402). Plaintiffs make no allegation that

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1 Defendants exceeded the legal boundaries set by DOJ for the EITs 2 because of abusive drift or otherwise. 3

4 Disputed. Plaintiffs mischaracterize the record. Dr. Jessen testified that

5 abusive drift is a phenomenon that occurs when, “without proper

6 oversight and [] independent eyes on authorities, people can start to push

7 the limits of what they’re authorized to do.” Dr. Jessen’s role at SERE

8 was to “make sure that [he] identified that and stopped it.” He also 9 indicated that “abusive drive” was more likely to happen in real life than 10 in training scenarios. Ladin Decl., Exh. C, Jessen Dep. 35:24-36:17. Dr. 11 Mitchell wrote about his similar role at SERE when he was responsible 12

13 for determining what went wrong in interrogations and specifically

14 “monitor[ing] and directly intervene[ing] to prevent escalating abusive

15 drift . . . that could lead to increased risk of lasting mental or physical

16 harm among students.” He further wrote that when he saw photographs

17 from Abu Ghraib—which was not part of any CIA interrogation 18 program—he was “dismayed” and “angry” because he “had studied the 19 psychological mechanisms that lead to that sort of abusive drift.” Ladin 20 Decl., Exh. E at MJ00022633, MJ00022857. Defendants do not contest 21

22 that they were aware of “abusive drift.” The remainder of Plaintiffs’

23 statement is disputed. Plaintiffs’ statement that “once coercion was

24 employed, interrogators would tend to exceed any approved limits,

25 resulting in even more severe abuse of prisoners” is unsupported by the

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1 record and contrary to Dr. Jessen’s testimony explaining that abusive drift 2 occurs when there is not proper oversight. 3

5 Plaintiffs’ Response: Response—No record dispute, Defendants’

6 response confirms that they were aware of a phenomenon called abusive

7 drift. Defendants’ knowledge is relevant to their mens rea, and in

8 particular to Defendants’ knowledge of the harm that would likely result 9 from their methods. 10

11 57. Plaintiffs’ Fact: Defendants “designed a program for the CIA to get 12

13 prisoners to talk, but the CIA would decide which prisoners to apply it to.”

14 Ladin Decl., Exh. B, Rodriguez Dep. 244:9-12.

16 Defendants’ Response: Disputed that the interrogation methods posed by

17 Defendants were the basis of one overarching CIA interrogation program 18 and, specifically, that the interrogation methods posed by Defendants 19 were the basis for interrogation of any Plaintiff. The interrogation 20 methods proposed by Defendants became the basis only for the CIA’s 21

22 interrogation of Zubaydah and later the CIA’s HVD Program. Rodriguez

23 Dep. 183:22-184:25; 186:17-20; Defs.’ SOF ¶¶ 209-11. Not contested that

24 the CIA would decide which HVDs would be interrogated and how

25 interrogations would be conducted. Rodriguez Dep. 125:23-126:3,

26 167:15-19, 169:4-8, 174:6-10, 183:22-184:25, 186:17-20; US Bates

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1 001631-32; US Bates 001593; US Bates 001594; Rizzo Dep. 60:10-25, 2 85:1-12, 187:2-25, 188:1-7, 192:23-25. Also, the CIA assessed and 3

4 approved all interrogation plans. US Bates 001592; US Bates 001635.

5 The CIA

7 Plaintiffs’ Response: Response—Speculation about multiple programs.

9 58. Plaintiffs’ Fact: When the CIA sought approval for the program, it submitted 10 to the Justice Department’s Office of Legal Counsel only the 12 methods 11 Defendants had proposed. Deposition of John Rizzo 47:4-15 (Ladin Decl., 12

13 Exh. EE, cited hereinafter as “Rizzo Dep.”).

15 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion

16 that the CIA asked the DOJ’s OLC to evaluate the legality of the EITs

17 because they had been recommended “by CTC management[.]” Rizzo 18 Dep. 47:4-48:1. 19

20 59. Plaintiffs’ Fact: By January 2003, the methods that Defendants had proposed 21

22 and used on Abu Zubaydah were standardized as the official “Enhanced

23 Interrogation Techniques” in the “enhanced interrogation program” used on

24 CIA prisoners. Ladin Decl., Exh. FF at U.S. Bates 001170-72; Ladin Decl.,

25 Exh. EE, Rizzo Dep. 64:8-23.

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1 Defendants’ Response: Disputed. Contrary to Plaintiffs’ statement, Mr. 2 Rizzo, Deputy General Counsel at the CIA in January 2003, did not testify 3

4 that “the methods that Defendants had proposed and used on Zubaydah

5 were standardized as the official ‘Enhanced Interrogation Techniques.’“

6 Rather, Mr. Rizzo testified that US Bates 001170-72 represented

7 instructions as to how interrogations were to be conducted within the legal

8 authorization and stated that the techniques developed for Zubaydah 9 “served as a template for the enhanced interrogation techniques that were 10 used on a number of subsequent high value detainees.” Ladin Decl., Exh. 11 EE, Rizzo Dep. 64:8-65:15. 12

13 Defendants further respond that US Bates 00170-72 does not reflect

14 “methods Defendants had proposed and used on Abu Zubaydah,” but

15 includes interrogation techniques not contained in the July 2002 Memo.

16 Specifically, it includes the use of isolation, reduced caloric intake,

17 deprivation of reading material, use of loud music or white noise (non- 18 harmful), and the abdominal slap. Ladin Decl., Exh. FF at U.S. Bates 19 001170-72. 20 Finally, it is disputed that the interrogation methods posed by Defendants 21

22 were the basis of one overarching CIA interrogation program for use on

23 all CIA detainees and, specifically, that the interrogation methods posed

24 by Defendants were the basis for interrogation of any Plaintiff. The EITs

25 were proposed by Defendants for use on Zubaydah and later for use in the

26 CIA’s HVD Program. Rodriguez Dep. 183:22-184:25; 186:17-20; Defs.’

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1 SOF ¶¶ 209-11. Even then, EITs were applied to HVDs in only specific 2 circumstances when the proper approvals were granted. Defs. SOF ¶¶ 3

4 216-24.

6 Plaintiffs’ Response: Response—No record dispute. Response—

7 Speculation about multiple programs. As Defendants admit in their

8 response, Mr. Rizzo testified “that the techniques developed for Zubaydah 9 ‘served as a template for the enhanced interrogation techniques.’” 10 Defendants’ methods as set forth in July 2002, are identified as the 11 “enhanced techniques” in the formalized CIA guidelines. ECF No. 182-32 12

13 at U.S. Bates 001172.

15 60. Plaintiffs’ Fact: The list of “Enhanced Techniques” standardized in the

16 January 2003 guidelines are “the attention grasp, walling, the facial hold, the

17 facial slap (insult slap), the abdominal slap, cramped confinement, wall 18 standing, stress positions, sleep deprivation beyond 72 hours, the use of 19 diapers for prolonged periods, the use of harmless insects, [and] the 20 waterboard.” Ladin Decl., Exh. FF at U.S. Bates 001172. The list of 21

22 “standard techniques” included “isolation, sleep deprivation not to exceed 72

23 hours, reduced caloric intake . . . use of loud music or white noise . . . and the

24 use of diapers for limited periods.” Id.

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1 Defendants’ Response: Disputed. US Bates 001170-72 does not indicate 2 EITs had become “standardized” but that “the use of each specific [EIT] 3

4 must be approved by Headquarters in advance, and may be employed only

5 by approved interrogators for use with the specific detainee, with

6 appropriate medical and psychological participation in the process.” Ladin

7 Decl., Exh. FF at U.S. Bates 001170-72. Not contested for purposes of

8 Plaintiffs’ Motion that US Bates 001170-72 is accurately quoted. 9

10 Plaintiffs’ Response: Response—No record dispute. Defendants’ 11 objection to the word “standardized” is immaterial. It is undisputed that 12

13 CIA Director George Tenet issued a memorandum in January 2003

14 adopting Defendants’ methods as the “enhanced techniques” to be applied

15 to detainees. See ECF No. 182-32 at U.S. Bates 001170–72.

17 61. Plaintiffs’ Fact: (a) With the exception of the “abdominal slap” technique, 18 the standardized “Enhanced Techniques” are the methods Defendants 19 proposed in July 2002. Ladin Decl., Exh. H at U.S. Bates 001110-11. 20 (b) The “abdominal slap” was a technique that Defendants used on Abu 21

22 Zubaydah in an interrogation that they claimed was successful. ECF No.

23 77 ¶ 49.

25 Defendants’ Response: Defendants object to this “fact” as compound.

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1 (a) Not contested for purposes of Plaintiffs’ Motion. Ladin Decl. Exh. FF at 2 U.S. Bates 001170-72; Exh. H at U.S. Bates 001110-11. 3

4 (b) Disputed. Defendants’ Answer at ¶ 77 does not state the abdominal slap

5 was used “in an interrogation that they claimed was successful” and this

6 assertion is unsupported by admissible evidence. ECF No. 77 ¶ 49. Not

7 contested for purposes of Plaintiffs’ Motion that Defendants used the

8 “abdominal slap” on Zubaydah during interrogation. 9

10 Plaintiffs’ Response: 11 (a) None. 12

13 (b) Response—No record dispute. Defendants admit they used the

14 abdominal slap technique on Abu Zubaydah. Defendants dispute that

15 they claimed the interrogation of Abu Zubaydah was successful, but that

16 is exactly what Defendant Mitchell said during his deposition. See

17 McGrady Decl., Exh. C, Mitchell Dep. 283:5–13 (“Q. Okay. So the only 18 – now, going to what occurred with respect to Abu Zubaydah, you went 19 back and you applied these – these techniques, right? A. Yes. Q. You 20 did, right? A. Yes. Q. Uh-huh. Was it successful? A. Yes.”). 21

23 62. Plaintiffs’ Fact: “As initially proposed, sleep deprivation was to be induced

24 by shackling the subject in a standing position, with his feet chained to a ring

25 in the floor and his arms attached to a bar at head level, with very little room

26 for movement.” Office of Professional Responsibility, Rep. on Investigation

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1 into the OLC’s Memoranda Concerning Issues Relating to the CIA’s Use of 2 “Enhanced Interrogation Techniques” on Suspected Terrorists 36 n.35, U.S. 3

4 Bates 000643 (2009) (Ladin Decl., Exh. GG, cited hereinafter as “OPR

5 Report”). “[D]etainees were typically shackled in a standing position, naked

6 except for a diaper.” OPR Report 126, U.S. Bates 000733; Ladin Decl., Exh.

7 C, Jessen Dep. 228:20-229:2.

9 Defendants’ Response: Defendants deny any implication that they played 10 a role in the development of methodologies for inducing sleep 11 deprivation. The OPR Report does not identify who made this proposal. 12

13 Otherwise, not contested for purposes of Plaintiffs’ Motion.

15 Plaintiffs’ Response: Response—No record dispute. It is undisputed that

16 Defendants proposed the sleep deprivation method in their July 2002

17 memo, and that Defendant Jessen testified that the only way he ever saw it 18 used was the way in which Defendants used it on Abu Zubaydah: “There 19 is a tether anchored to the ceiling in the center of the detention cell. The 20 detainee has handcuffs and they’re attached to the tether in a way that 21

22 they can’t lie down or rest against a wall.” McGrady Decl., Exh. D, Jessen

23 Dep. 228:20–229:2. While Defendants deny—without citing any

24 evidence—any role in developing methodologies for inducing sleep

25 deprivation, John Rizzo testified that during a meeting with then Secretary

26 of State Condoleezza Rice, Defendants Mitchell and Jessen “described the

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1 genesis of the original techniques they came up with.” McGrady Decl., 2 Exh. A, Rizzo Dep. 69:9–24. After Secretary Rice “expressed concern” 3

4 regarding the method of sleep deprivation by shackling a nude detainee in

5 a standing position, Defendants agreed to “work on alternative methods

6 for implementing sleep deprivation[.]” Id. 74:5–8.

8 63. Plaintiffs’ Fact: Defendants’ list of methods was specifically sent to 9 COBALT. Ladin Decl., Exh. FF at U.S. Bates 001170-72. Ladin Decl., Exh. 10 B, Rodriguez Dep. 71:20-73:24. 11

13 Defendants’ Response: Disputed that US Bates 001170-72 was

14 “Defendants’ list of methods,” as it was drafted by the CTC Legal

15 Department at the direction of the CIA’s then General Council, Scott

16 Muller, with no involvement from Defendants. Rizzo Dep. at 185:23-

17 186:21. Rizzo Decl. ¶ 51. Not contested that US Bates 001170-72 was 18 transmitted to COBALT. 19

20 Plaintiffs’ Response: Response—No record dispute. Eleven of the twelve 21

22 methods sent to COBALT were directly specified in Defendants’ July

23 2002 memorandum. See ECF No. 182-32 at U.S. Bates 001170–72; ECF

24 No. 182-8 at U.S. Bates 001110–11. As for the one additional method,

25 the “abdominal slap,” Defendants personally administered this technique

26 on Abu Zubaydah. Am. Answer, ECF No. 77 ¶ 49.

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2 64. Plaintiffs’ Fact: Prisoners at COBALT were subjected to total darkness “to 3

4 disorient prisoners so they didn’t know if it was day or night.” Ladin Decl.,

5 Exh. HH at U.S. Bates 001126.

7 Defendants’ Response: Disputed to the extent this implies Defendants

8 had any involvement in determining conditions at COBALT. CIA Staff 9 Officer stated the prisoners were kept in total darkness because “he 10 wanted to disorient prisoners so they didn’t know it was day or night.” 11 Ladin Decl., Exh. HH at U.S. Bates 001126. And because there was only 12

13 one light switch for all the lights in the cell area, CIA Staff Officer

14 decided to keep them off all the time. Defs.’ SOF ¶¶ 262.

16 Plaintiffs’ Response: Response—No record dispute. Moreover, that

17 Defendant Mitchell joined in recommending that the CIA’s first prisoner 18 be disoriented by depriving him of natural light and disrupting his ability 19 to perceive the passage of time is undisputed. See supra Fact #9; Am. 20 Answer, ECF No. 77 ¶ 38. 21

23 65. Plaintiffs’ Fact: Prisoners at COBALT were deprived of amenities: “A

24 prisoner begins his confinement with nothing in his cell except a bucket used

25 for human waste,” but can be given “rewards for cooperation.” These

26 “rewards” included lights to cut the endless darkness, earplugs to block out

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1 the endless music, a mat to sleep on, and extra blankets against the cold. Id. 2 at U.S. Bates 001127. 3

5 Defendants’ Response: Disputed to the extent this implies Defendants

6 had any involvement in setting the conditions at COBALT. CIA Staff

7 Officer was responsible for the final construction of COBALT and for

8 detainee affairs. Defs. SOF ¶¶ 255-57. 9

10 Plaintiffs’ Response: Response—No record dispute. It is undisputed that: 11 Defendant Mitchell recommended that the CIA’s first prisoner be 12

13 deprived of amenities; the “behavioral team” stated that the goal was to

14 emphasize that “the only mechanism [Abu Zubaydah] has at his disposal,

15 to control the environment will be in providing vital intelligence;” and

16 pleasing his interrogators was the only way for Abu Zubaydah to “earn

17 basic privileges” and receive better conditions. See supra Facts #4–5; Am. 18 Answer, ECF No. 77 ¶¶ 34, 38. 19

20 66. Plaintiffs’ Fact: Prisoners at COBALT were kept in diapers “solely to 21

22 humiliate the prisoner for interrogation purposes.” When guards ran out of

23 diapers, they either used “a handcrafted diaper secured by duct tape,” or kept

24 the prisoners nude. Id. at U.S. Bates 001126.

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1 Defendants’ Response: Disputed that prisoners at COBALT were kept in 2 diapers “solely to humiliate the prisoners for interrogation purposes.” 3

4 There was also “hygienic reasons” for the use of diapers because there

5 were “no drains in the cells” that would facilitate clean-up if a detainee

6 had an accident between breaks. Tompkins Decl., Ex. 18 at US Bates

7 001086. Defendants do not dispute for purposes of Plaintiffs’ Motion that

8 when guards ran out of diapers, they either used “a handcrafted diaper 9 secured by duct tape,” or kept the prisoners nude. Id. at U.S. Bates 10 001126. 11

13 Plaintiffs’ Response: The conclusion that diapers were used solely for

14 humiliation at COBALT is the factual determination of the CIA’s

15 investigation into Mr. Rahman’s death. ECF No. 182-34 at U.S. Bates

16 001126. The self-serving statement by a CIA officer that diapers also

17 helped facilitate clean-up between interrogations was not accepted by the 18 CIA investigators who interviewed him and concluded that diapers were 19 used “solely to humiliate the prisoner.” Defendants point to no admissible 20 evidence contradicting this fact. 21

23 67. Plaintiffs’ Fact: (a) In November 2002, Mr. Rahman was abducted and

24 taken to COBALT.

25 (b) Defendants traveled to COBALT that same month, during which

26 Defendant Jessen personally participated in multiple interrogations of Mr.

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1 Rahman at COBALT during which Mr. Rahman was kept naked or in a 2 diaper, “in cold conditions with minimal food and sleep,” and subjected to 3

4 physical assault. Ladin Decl., Exh. II at U.S. Bates 001076; Ladin Decl.,

5 Exh. JJ at 001051; Ladin Decl., Exh. KK at 001547–49.

7 Defendants’ Response: Defendants object to this “fact” as compound.

8 Defendants further respond that Plaintiffs mischaracterize the record. 9 (a) Disputed. Mr. Rahman was captured in Pakistan in October 2002. He 10 was transferred to COBALT in November 2002. Defs.’ SOF ¶¶ 284-85; 11 Exh. KK at 001547. 12

14 (b) Disputed that Defendants had control over Mr. Rahman’s treatment at

15 COBALT. Dr. Jessen was at COBALT when Mr. Rahman arrived. Defs.’

16 SOF ¶ 287. It was the COBALT COB’s responsibility to monitor

17 COBALT. Defs.’ SOF ¶ 288. At the request of COBALT’s COB, Dr. 18 Jessen observed interrogations of Mr. Rahman and then participated in 19 other interrogations of Mr. Rahman. Defs.’ SOF ¶¶ 289, 291-92. During 20 this time, Mr. Rahman was sometimes naked and sometimes had clothing. 21

22 When Mr. Rahman was naked, he had a blanket. Ladin Decl., Exh. JJ at

23 001050-51. Dr. Jessen observed Mr. Rahman being subjected to rough

24 treatment on one occasion. Defs.’ SOF ¶ 299. Dr. Mitchell arrived at

25 COBALT later. Ladin Decl., Exh. KK at 001548. Dr. Mitchell did not

26 interrogate Rahman or observe the application of any interrogation

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1 techniques on Rahman, although Dr. Mitchell did observe one custodial 2 debriefing of Rahman. Defs.’ SOF ¶ 308. 3

5 Plaintiffs’ Response: Plaintiffs do not dispute Defendants’ clarification

6 that Mr. Rahman was captured in Pakistan in October 2002, and

7 thereafter, in November 2002, transferred to COBALT. The remainder of

8 Defendants’ response is unresponsive, as Defendants do not deny 9 Defendant Jessen’s personal participation in multiple interrogations of 10 Mr. Rahman at COBALT or in witnessing the conditions and nature of 11 those interrogations. 12

14 68. Plaintiffs’ Fact: (a) Defendant Jessen advised the CIA that Mr. Rahman

15 displayed a “sophisticated level of resistance training,” because he

16 “complained about poor treatment,” and said he couldn’t think because he

17 was so cold. Ladin Decl., Exh. LL at U.S. Bates 001073. 18 (b) Defendant Jessen was asked to assess Mr. Rahman for resistance methods 19 and to design an interrogation plan. Ladin Decl., Exh. C, Jessen Dep. 20 238:11–241:15. 21

23 Defendants’ Response: Defendants object to this “fact” as compound.

24 (a) Disputed. Dr. Jessen specifically testified that he did not recall Mr.

25 Rahman complaining about poor treatment or complaining about the

26 violation of his human rights. Jessen Dep. 211:20-213:20. He further

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1 testified that he did not recall ever assessing that Mr. Rahman used health 2 and welfare behaviors as a resistance technique. Jessen Dep. 232:10-14. 3

4 Furthermore, Dr. Jessen did not draft or review US Bates 001072-74 or

5 any other cable at COBALT so the information contained in it cannot be

6 attributed to him. Jessen Dep. 143:2-13; Defs.’ SOF ¶ 298.

7 (b) Disputed. Jessen testified only that he was asked to look at Rahman

8 “to give the Chief of Base recommendations on how they should continue 9 interrogating him, try to get information.” He does not state he was asked 10 to “design” an interrogation plan. 11

13 Plaintiffs’ Response: Response—No record dispute.

14 (a) Defendant Jessen testified that he “didn’t know” whether he made

15 assessments of Mr. Rahman, and that he “could have, in fact, made those

16 observations to the Chief of Base who then incorporated them in his

17 cable.” McGrady Decl., Exh. D, Jessen Dep. 209:11–16. This does 18 nothing to undermine record evidence from much closer in time to 19 Defendant Jessen’s actions. Shortly after Mr. Rahman’s death, Defendant 20 Jessen in fact admitted that the cited cable “is pretty much what he 21

22 recalls,” and that he was the source of “many of the bullets that were used

23 in the cable.” ECF No. 182-36 at U.S. Bates 001049. Contemporaneous

24 record evidence confirms that Defendant Jessen advised the CIA that Mr.

25 Rahman “continues to use ‘health and welfare’ behaviors and complaints

26 as a major part of his resistance posture,” ECF No. 182-35 at U.S. Bates

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1 001077, and that Jessen told a CIA investigator that Mr. Rahman “knew 2 how to use physical problems or duress as a resistance tool.” ECF No. 3

4 182-36 at U.S. Bates 001053. In addition, McGrady Decl., Exh. D, Jessen

5 Dep. 143:2–13 concerns another cable sent in July 2002, not November

6 2002.

7 (b) With respect to Defendant Jessen’s recommendations and decision,

8 Defendant Jessen testified that he was asked to “make your 9 recommendations about an interrogation plan, and tell us if you think he’s 10 okay to do that. So I did that… [and ] sent the report.” McGrady Decl., 11 Exh. D, Jessen Dep. 240:22 – 241:10; 242:2–24; 243:1–6. Defendants’ 12

13 response to Plaintiff’s Fact # 71 specifically admits: “Dr. Jessen

14 concluded the following, ‘Because of [Mr. Rahman’s] remarkable

15 physical and psychological resilience and determination to persist in his

16 effective resistance posture employing enhanced measures is not the first

17 or best option to yield positive interrogation results … The most effective 18 interrogation plan for Gul Rahman is to continue the environmental 19 deprivations he is experiencing and institute a concentrated interrogation 20 exposure regimen’” quoting ECF No. 182-44 at U.S. Bates 001057–58 21

22 (emphasis added).

24 69. Plaintiffs’ Fact: Defendant Mitchell participated in one of Defendant

25 Jessen’s sessions with Mr. Rahman. Ladin Decl., Exh. MM at U.S. Bates

26 001290.

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2 Defendants’ Response: Disputed. Dr. Mitchell did not interrogate 3

4 Rahman or observe the application of any interrogation techniques on

5 Rahman, although Dr. Mitchell did observe one custodial debriefing of

6 Rahman. Defs.’ SOF ¶ 308. The document cited by Plaintiff does not

7 indicate that Dr. Jessen was present in the debriefing that Dr. Mitchell

8 observed, and there is no other evidence that he was. Ladin Decl., Exh. 9 MM at U.S. Bates 001290. 10

11 Plaintiffs’ Response: Response—No record dispute. The cited cable 12

13 clearly states “Mitchell participated in one of Jessen’s sessions with

14 Rahman.” ECF No. 182-39 at U.S. Bates 001290. See also, ECF No. 182-

15 36 at U.S. Bates 001053 (“Jessen stated that he interrogated Rahman

16 twice by himself and two or three other times with []. Jim Mitchell,

17 another IC psychologist also interrogated him once.”). 18

19 70. Plaintiffs’ Fact: Defendant Jessen conducted an assessment as to whether 20 Mr. Rahman “would be profoundly or permanently affected by continuing 21

22 interrogations, to include HVT-enhanced measures.” As part of his

23 assessment, Defendant Jessen used one of the “enhanced interrogation

24 techniques” that Defendants had proposed for use on Abu Zubaydah—a

25 facial slap “to determine how he would respond.” Defendant Jessen

26 concluded that Mr. Rahman “was impervious to it,” and assessed that Mr.

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1 Rahman would not be “profoundly and permanently affected” by the use of 2 any of the methods Defendants had proposed for use on Abu Zubaydah. 3

4 Ladin Decl., Exh. C, Jessen Dep. 238:22–241:15, 211:7–15.

6 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

8 71. Plaintiffs’ Fact: Defendant Jessen advised that rather than using the more 9 active “enhanced interrogation techniques,” Mr. Rahman’s interrogators 10 should instead focus on “deprivations”: “it will be the consistent and 11 persistent application of deprivations (sleep loss and fatigue) and seemingly 12

13 constant interrogations which will be most effective in wearing down this

14 subject’s resistance posture.” Ladin Decl., Exh. NN at U.S. Bates 001057–

15 58.

17 Defendants’ Response: Disputed. Plaintiffs mischaracterize US Bates 18 001057-58. Dr. Jessen did not characterize “enhanced interrogation 19 techniques” as active or inactive. Rather, Dr. Jessen concluded the 20 following, “Because of [Mr. Rahman’s] remarkable physical and 21

22 psychological resilience and determination to persist in his effective

23 resistance posture employing enhanced measures is not the first or best

24 option to yield positive interrogation results. . . The most effective

25 interrogation plan for Gul Rahman is to continue the environmental

26 deprivations he is experiencing and institute a concentrated interrogation

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1 exposure regimen. This regimen would ideally consist of repeated and 2 seemingly constant interrogations . . . . It will be the consistent and 3

4 persistent application of deprivations (sleep loss and fatigue) and

5 seemingly constant interrogations which will be most effective in []

6 wearing down [] this subject’s resistance posture. It will be important to

7 manage the deprivations so as to allow the subject adequate rest and

8 nourishment[.]” Ladin Decl., Exh. NN at U.S. Bates 001057–58. 9

10 Plaintiffs’ Response: Response—No record dispute. As Defendants 11 admit, Defendant Jessen advised the CIA that what Defendant Jessen 12

13 assessed as Mr. Rahman’s resistance could be broken by subjecting him to

14 “deprivations” including sleep deprivation (one of Defendants’ methods),

15 and fatigue and constant interrogations to wear him down – as opposed to

16 the more active methods, such as the “facial slap” method, which

17 Defendant Jessen had used on Mr. Rahman. 18

19 72. Plaintiffs’ Fact: (a) During the weeks Mr. Rahman spent in the CIA prison 20 before his death, Rahman was mostly naked or wearing a diaper. Ladin Decl., 21

22 Exh. MM at U.S. Bates 001291.

23 (b) Defendant Jessen admitted that Mr. Rahman’s diaper and clothes were

24 removed at the interrogators’ direction. Id.

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1 Defendants’ Response: Defendants object to this “fact” as compound. 2 Defendants further respond that Plaintiffs mischaracterize the record. 3

4 (a) Not contested for purposes of Plaintiffs’ Motion. Ladin Decl., Exh.

5 MM at U.S. Bates 001291.

6 (b) Disputed. This information is not supported by US Bates 001291.

7 Furthermore, the record indicates that CIA Officer, not Dr. Jessen, used

8 Mr. Rahman’s clothing “to try to manipulate and motivate Rahman.” US 9 Bates 001050. 10

11 Plaintiffs’ Response: Response—No record dispute. Defendant Jessen 12

13 specifically admitted that Mr. Rahman’s “diaper and clothes would have

14 been removed at the interrogators’ direction.” ECF No. 182-39 at U.S.

15 Bates 001292. Plaintiffs inadvertently cite the wrong page of this record.

16 See also ECF No. 182-36 at U.S. Bates 001052 (“Jessen stated that

17 Rahman would have lost his clothes and diaper at our direction.”). 18

19 73. Plaintiffs’ Fact: (a) The diaper and nudity were used to humiliate Mr. 20 Rahman, and had the intended effect: Mr. Rahman was “particularly 21

22 concerned with being naked in front of . . . the guards,” and “asked to be

23 covered” during every interrogation. Id. at U.S. Bates 001293.

24 (b) This was in accord with Defendants’ proposal that diapers be used to

25 “leverage” a prisoner’s being “very sensitive to situations that reflect a loss

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1 of status or are potentially humiliating.” Ladin Decl., Exh. H at U.S. Bates 2 001110–11. 3

5 Defendants’ Response: Defendants object to this “fact” as compound.

6 (a) Disputed. Plaintiffs mischaracterize US Bates 001293. The document

7 does not discuss why CIA Staff Officer had Mr. Rahman naked. US Bates

8 001293 states only that “Rahman was particularly concerned with being 9 naked in front of [REDACTED] the guards. Every time Rahman came to 10 the interrogation room, he asked to be covered.” 11 (b) Disputed. Plaintiffs present no evidence that CIA Staff Officer was 12

13 aware of Defendants’ proposals, which were specifically related to

14 Zubaydah, in US Bates 001110-11 or that Mr. Rahman being in a diaper

15 was related to Defendants’ proposal. Also, Plaintiffs again

16 mischaracterize US Bates 001110-11 which discusses the use of diapers

17 specifically with Zubaydah who “spen[t] much time cleaning himself and 18 seem[ed] to go out of his way to avoid circumstances likely to bring him 19 in contact with potentially unclean objects or material. And who was 20 “very sensitive to situations that reflect a loss of status or are potentially 21

22 humiliating.” Defendants therefore stated, as specific to Zubaydah, “One

23 way to leverage his concerns, while helping ensure his wound doesn’t

24 become infected with human waste . . . is to place him in an adult diaper.”

25 Even if CIA Officer had knowledge of US Bates 001110-10, there is no

26 evidence Rahman was similarly “fastidious” or that diapers were used in

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1 response to such fastidiousness. Ladin Decl., Exh. H at U.S. Bates 2 001110–11. 3

5 Plaintiffs’ Response: Response—No record dispute. ECF No. 182-39 at

6 U.S. Bates 001293, which speaks for itself, establishes that Mr. Rahman

7 was humiliated by his nakedness during interrogation. That one of the

8 intended effects of Defendants’ diaper method was to humiliate a detainee 9 during interrogation is undisputed, as is the fact that Defendants used 10 diapers and nudity on Abu Zubaydah. See also Fact # 65. 11

13 74. Plaintiffs’ Fact: According to Defendant Jessen, Mr. Rahman was subjected

14 to consistent sleep deprivation for days, with Mr. Rahman “chained to the

15 overhead bar in his cell,” to induce “sleep deprivation right from the

16 beginning.” Ladin Decl., Exh. JJ at U.S. Bates 001049, 001051.

18 Defendants’ Response: Disputed. Plaintiffs mischaracterize US Bates 19 001049 and 001051. The document states only that “Jessen stated that the 20 use of sleep deprivation with Rahman started very early. The sleep 21

22 deprivation was consistent for the first few days. He was chained to the

23 overhead bar in his cell.” The documents do not contain the second

24 quoted excerpt. Ladin Decl., Exh. JJ at U.S. Bates 001049, 001051.

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1 Plaintiffs’ Response: Response—No record dispute. Additionally, 2 contrary to Defendants’ response, the document contains the quoted 3

4 excerpt: “Jessen stated that he thought that the sleep deprivation started

5 right from the beginning.” ECF No. 182-36 at U.S. Bates 001049.

7 75. Plaintiffs’ Fact: According to Defendant Jessen, Mr. Rahman “was without

8 clothes very early on in his incarceration,” and “didn’t have clothing more 9 than he did have clothing.” Id. at U.S. Bates 001050. 10

11 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 12

14 76. Plaintiffs’ Fact: Defendant Jessen observed other interrogators and guards

15 using a “hard takedown” on Mr. Rahman: the renditions team dragged Mr.

16 Rahman out of his cell, cut his clothes off, taped him, and put a hood over his

17 head. They slapped him and punched him as they ran him up and down the 18 long corridor adjacent to his cell. When Mr. Rahman stumbled, the team 19 dragged him along the ground. Afterwards, Mr. Rahman had abrasions on his 20 head and leg and crusty contusions on his face, leg, and hands. Defendant 21

22 Jessen told a CIA interrogator at COBALT that he had not used the

23 technique, but it was worth trying. Ladin Decl., Exh. JJ at U.S. Bates 1051.

24 Defendant Jessen suggested to the CIA interrogator that if you do a hard

25 takedown, you should “leverage that in some way” Ladin Decl., Exh. C,

26 Jessen Dep. 197:12–198:7. Defendant Jessen said an interrogator should

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 speak to the prisoner afterwards, to “give them something to think about.” 2 Ladin Decl., Exh. HH at U.S. Bates 001133. 3

5 Defendants’ Response: Disputed to the extent that it implies Dr. Jessen

6 approved of or otherwise ordered the hard takedown. The rough

7 treatment/hard takedown was not one of the interrogation techniques in

8 the July 2002 Memo. Dr. Jessen advised COBALT’s COB that he should 9 not use unauthorized techniques such as rough treatment/hard takedown. 10 Dr. Jessen specifically told COBALT’s COB that he did not use the hard 11 takedown and that even if it was effective at dislocating Rahman’s 12

13 expectations, for that to be useful, Rahman would have to be interviewed

14 after it was implemented instead of being placed back in his cell alone,

15 which is what COBALT’s COB had done with Rahman. Defs.’ SOF ¶¶

16 299-303.

18 Plaintiffs’ Response: Response—No record dispute. Defendants admit 19 that Defendant Jessen observed other interrogators and guards using a 20 “hard takedown” on Mr. Rahman and that Defendant Jessen provided his 21

22 comments on the procedure and how it might be better leveraged for

23 interrogation purposes.

25 77. Plaintiffs’ Fact: Defendant Jessen said the hard takedown was a “good

26 technique, but these kinds of things need to be written down and codified

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 with a stamp of approval or you’re going to be liable.” Ladin Decl., Exh. JJ 2 at U.S. Bates 001049. 3

5 Defendants’ Response: Disputed to the extent that it implies Dr. Jessen

6 approved of or otherwise ordered the hard takedown. Dr. Jessen advised

7 COBALT’s COB that he should not use unauthorized techniques such as

8 rough treatment/hard takedown. Defs.’ SOF ¶¶299-300. Defendants do 9 not contest for purposes of Plaintiffs’ Motion that the underlying 10 document is accurately quoted. 11

13 Plaintiffs’ Response: Response—No record dispute.

15 78. Plaintiffs’ Fact: After several days during which Mr. Rahman had been kept

16 in a diaper, his hands chained to an overhead bar in accord with Defendants’

17 sleep deprivation method, and after Defendant Jessen observed that Mr. 18 Rahman displayed early signs of hypothermia, Defendant Jessen 19 recommended that the CIA “continue the environmental deprivations [Mr. 20 Rahman] is experiencing.” Ladin Decl., Exh. NN at U.S. Bates 001057. 21

23 Defendants’ Response: Disputed. After conducting a captivity

24 assessment, Dr. Jessen recommended to “continue the environmental

25 deprivations [Mr. Rahman] is experiencing” instead of enhanced

26 interrogation techniques. US Bates 001057 does not indicate that Dr.

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1 Jessen’s assessment occurred after Mr. Rahman had spent several days 2 “kept in a diaper, his hands chained to an overhead bar in accord with 3

4 Defendants’ sleep deprivation method and after Defendant Jessen

5 observed that Mr. Rahman displayed early signs of hypothermia.” Ladin

6 Decl., Exh. NN at U.S. Bates 001057.

8 Plaintiffs’ Response: Response—No record dispute. In the cited cable 9 recommending continued “environmental deprivations,” which Defendant 10 Jessen drafted, he acknowledged that he had already participated in six 11 interrogations of Mr. Rahman. ECF No. 182-40 at U.S. Bates 001057. 12

13 The record is clear that Defendant Jessen wrote this cable after he had

14 observed both the early signs of hypothermia and the sleep deprivation of

15 Mr. Rahman that started “from the beginning,” see Fact #74. The record

16 shows the chronology: a cold shower was used on Mr. Rahman during the

17 first 48 hours of his captivity, as reflected in an earlier cable documenting 18 that “despite 48 hours of sleep deprivation, auditory overload, total 19 darkness, isolation, a cold shower, and rough treatment, Rahman remains 20 steadfast.” ECF No. 182-38 at U.S. Bates 001073. To the extent 21

22 Defendants now attempt to dispute the chronology, CIA records confirm

23 that Defendant Jessen’s assessment occurred after the cold showers. See

24 ECF No. 182-37 at U.S. Bates 001547–48 (confirming that cold showers

25 occurred before Jessen’s recommendation); OIG Report, ECF No. 195-11

26 at U.S. Bates 001305 (“Jessen, who was present at COBALT at the same

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1 time, recalled the guards administering a cold shower to Rahman as a 2 ‘deprivation technique.’ Jessen subsequently checked on Rahman after he 3

4 had been returned to his cell. Jessen detected that Rahman was showing

5 the early stages of hypothermia and ordered the guards to give the

6 detainee a blanket.”).

8 79. Plaintiffs’ Fact: (a) Defendant Jessen claimed that Mr. Rahman “continues 9 to use ‘health and welfare’ behaviors and complaints as a major part of his 10 resistance posture.” Ladin Decl., Exh. II at U.S. Bates 001077 11 (b) Defendant Jessen explained that “health and welfare behavior” is “[a]ny 12

13 complaint dealing with health and welfare,” and gave as an example the

14 complaint “I’m cold.” Ladin Decl., Exh. C, Jessen Dep. 234:10–235:4.

15 (c) Defendant Jessen also identified as specific examples of Mr. Rahman’s

16 “sophisticated level of resistance training” that Mr. Rahman’s “claimed

17 inability to think due to conditions (cold),” that he “complained about poor 18 treatment,” and that he “complained about the violation of his human rights.” 19 Ladin Decl., Exh. LL at U.S. Bates 001073. 20 (d) Jessen stated that after he saw Mr. Rahman “showing the early stages of 21

22 hypothermia,” he “ordered the guards to give him a blanket.” Ladin Decl.,

23 Exh. JJ at 1050.

25 Defendants’ Response: Defendants object to this “fact” as compound.

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1 (a) Disputed. Dr. Jessen specifically testified that he did not recall ever 2 assessing that Mr. Rahman used health and welfare behaviors as a 3

4 resistance technique. Jessen Dep. 232:10-14. Furthermore, Dr. Jessen did

5 not draft or review US Bates 001077 or any other cable at COBALT, and

6 there is no evidence to support attributing the information to him. Jessen

7 Dep. 143:2-13; Defs.’ SOF ¶ 298.

8 (b) Not contested for purposes of Plaintiffs’ Motion. 9 (c) Disputed. Dr. Jessen explained that he would assume “I’m cold” was a 10 resistance technique if it was not cold. But, if it was cold, he would go get 11 a doctor and ask them if it was too cold. Jessen Dep. at 234:22-235:14. 12

13 Dr. Jessen specifically testified that he did not recall Mr. Rahman

14 complaining about poor treatment or complaining about the violation of

15 his human rights. Jessen Dep. 211:20-213:20. Furthermore, Dr. Jessen did

16 not draft or review US Bates 001072-74 or any other cable at COBALT

17 so the information contained within cannot be attributed to him. Jessen 18 Dep. 143:2-13; Defs. SOF ¶ 298. 19 (d) Not contested for purposes of Plaintiffs’ Motion. 20

22 Plaintiffs’ Response to (a) & (c): Response—No record dispute.

23 Defendant Jessen testified that he “didn’t know” whether he made

24 assessments of Mr. Rahman, and that he “could have, in fact, made those

25 observations to the Chief of Base who then incorporated them in his

26 cable.” McGrady Decl., Exh. D, Jessen Dep. 209:11–16. This current

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 testimony stating a lack of recall does nothing to undermine record 2 evidence from much closer in time to Defendant Jessen’s actions. Shortly 3

4 after Mr. Rahman’s death, Defendant Jessen in fact admitted that the

5 cable “is pretty much what he recalls,” and that he was the source of

6 “many of the bullets that were used in the cable.” ECF No. 182-36 at U.S.

7 Bates 001049. Contemporaneous record evidence confirms that Defendant

8 Jessen advised the CIA that Mr. Rahman “continues to use ‘health and 9 welfare’ behaviors and complaints as a major part of his resistance 10 posture,” ECF No. 182-35 at U.S. Bates 001077, and that Defendant 11 Jessen told a CIA investigator that Mr. Rahman “knew how to use 12

13 physical problems or duress as a resistance tool.” ECF No. 182-36 at U.S.

14 Bates 001053. In addition, McGrady Decl., Exh. D, Jessen Dep. 143:2–13

15 concerns another cable sent in July 2002, not November 2002.

17 80. Plaintiffs’ Fact: Four days after Defendant Jessen left COBALT, an 18 interrogator conducted a brief question session with Mr. Rahman “based on 19 Jessen’s recommendation that Rahman be left alone and environmental 20 deprivations continued.” Ladin Decl., Exh. MM at U.S. Bates 001312. 21

23 Defendants’ Response: Disputed. Dr. Jessen’s recommendations had

24 included “continue the environmental deprivations he is experiencing and

25 institute a concentrated interrogation exposure regimen. This regimen

26 would ideally consist of repeated and seemingly constant interrogations . .

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1 . . It will be important to manage the deprivations so as to allow the 2 subject adequate rest and nourishment[.]” Ladin Decl., Exh. NN at U.S. 3

4 Bates 001057–58. CIA Officer conducting one brief interrogation session

5 four days later is not consistent with Dr. Jessen’s recommendation that

6 Mr. Rahman be subject to “repeated and seemingly constant

7 interrogations.” Ladin Decl., Exh. MM at U.S. Bates 001312.

9 Plaintiffs’ Response: Response—No record dispute. The cited document 10 speaks for itself. 11

13 81. Plaintiffs’ Fact: Two days later, Mr. Rahman—deprived of food, sleep,

14 clothing, and warmth died of hypothermia. Id. at U.S. Bates 001272–73.

16 Defendants’ Response: Disputed. US Bates 001272-73 does not support

17 the assertion that Mr. Rahman was deprived of food or sleep after 18 Defendants departed COBALT. Ladin Decl., Exh. MM at U.S. Bates 19 001272-73. Not contested that six days after Defendants left COBALT, 20 Mr. Rahman died of hypothermia. Ladin Decl., Exh. MM at U.S. Bates 21

22 001272-73.

24 Plaintiffs’ Response: Response—No record dispute. Defendants do not

25 dispute that Mr. Rahman was deprived of food, sleep, clothing, and

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1 warmth while they were at COBALT, nor that he died of hypothermia 2 days after they left. 3

5 82. Plaintiffs’ Fact: After Mr. Rahman’s death, Defendant Jessen told an

6 investigator that Mr. Rahman “knew how to use physical problems or duress

7 as a resistance tool.” Ladin Decl., Exh. JJ at U.S. Bates 001053.

9 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 10

11 83. Plaintiffs’ Fact: Defendant Jessen also told the investigator that “if a 12

13 detainee is strong and resilient, you have to establish control in someway

14 [sic] or you’re not going to get anywhere. If bound by the Geneva

15 Convention, this person would not break. You have to try different

16 techniques to get him to open up. . . .You want to instill fear and despair.” Id.

17 at U.S. Bates 001050–51. 18

19 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 20

22 84. Plaintiffs’ Fact: Defendant Jessen reported that the atmosphere at COBALT

23 “was excellent for the type of prisoners kept there—’nasty but safe,’” and

24 that the CIA officer who had ordered that Mr. Rahman be chained during his

25 final days, pantless, to a freezing concrete floor “was very level headed and

26 acted in a measured manner.” Defendant Jessen stated he would work with

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 the CIA officer “anytime, anyday.” Ladin Decl., Exh. HH at U.S. Bates 2 001124; Ladin Decl., Exh. JJ at U.S. Bates 001053. 3

5 Defendants’ Response: Disputed. Plaintiffs mischaracterize the cited

6 documents. Dr. Jessen described CIA Staff Officer as “very level headed

7 and acted in a measured manner” and further stated that “he would work

8 with [REDACTED] anytime, anyday [sic]” in reference to his experience 9 with that officer prior to Mr. Rahman’s death. The underlying documents 10 do not discuss CIA Staff Officer ordering Mr. Rahman to be short 11 chained, nor is there any indication that Dr. Jessen knew how Mr. 12

13 Rahman died or that that CIA Staff Officer had ordered Mr. Rahman’s

14 short chained, ultimately causing Mr. Rahman’s death. Ladin Decl., Exh.

15 HH at U.S. Bates 001124; Ladin Decl., Exh. JJ at U.S. Bates 001053. Dr.

16 Jessen left COBALT six days before Mr. Rahman’s death. Ladin Decl.,

17 Exh. KK at 001549. 18

19 Plaintiffs’ Response: Response—No record dispute. Defendant Jessen’s 20 statements to a CIA investigator examining the death of Mr. Rahman 21

22 speak for themselves.

24 85. Plaintiffs’ Fact: Mr. Salim was held at COBALT for two months, between

25 March 2003 and May 2003. Salim Decl. ¶ 3.

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1 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 2

4 86. Plaintiffs’ Fact: While he was held at COBALT, Mr. Salim was subjected to

5 conditions that included deprivation of natural light and any ability to

6 distinguish between day and night, continuous loud music and noise,

7 isolation. Mr. Salim felt that he was “treated like I wasn’t human, worse than

8 an animal.” Salim Decl. ¶ 6. 9

10 Defendants’ Response: Defendants state that they played no role in 11 determining the conditions under which Mr. Salim was held or the 12

13 interrogation techniques employed while he was in CIA custody. Defs.’

14 SOF ¶¶ 266-273. Not contested for purposes of Plaintiffs’ Motion.

16 Plaintiffs’ Response: Response—No record dispute.

18 87. Plaintiffs’ Fact: Interrogators also subjected Mr. Salim to forced nudity, 19 diapers, and sleep deprivation through shackling in a painful position that 20 made it impossible to sleep. For about a week he was “chained[], naked 21

22 except for a diaper, by [his] arms and legs to a rusty hoop that was attached

23 to the wall, [his] arms outstretched and at eye level. The only position [he]

24 could safely adopt was a squatting position that very quickly became

25 uncomfortable and extremely painful. The excruciating stress position,

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1 together with the putrid smell and deafening noise, made it impossible for 2 [him] to sleep.” Salim Decl. ¶ 7. 3

5 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

7 88. Plaintiffs’ Fact: Mr. Salim was deprived of any “amenities,” including

8 clothing, a toilet, and any ability to keep himself clean. Salim Decl. ¶¶ 6, 9. 9

10 Defendants’ Response: Disputed that clothing, toilet, and washing 11 facilities were considered “amenities.” Further disputed that Mr. Salim 12

13 was always deprived of clothing, which he received when he was

14 interrogated. Salim Decl. (ECF No. 181) ¶¶ 6, 9.

16 Plaintiffs’ Response: Response—No record dispute. Mr. Salim states that

17 he was deprived of clothing while he was held at COBALT, and not 18 “always” deprived. 19

20 89. Plaintiffs’ Fact: Forced nudity and use of diapers had the desired impact on 21

22 Mr. Salim: “The forced nudity left [him] feeling vulnerable, helpless, and

23 deeply humiliated.” Salim Decl. ¶ 9.

25 Defendants’ Response: Disputed. Plaintiffs offer no support for their

26 characterization of the “desired impact” of forced nudity and diapers.

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1 Defendants do not contest the description of Mr. Salim’s feelings. Salim 2 Decl. ¶ 9. 3

5 Plaintiffs’ Response: Response—No record dispute. See also Fact #66.

7 90. Plaintiffs’ Fact: The “aggressive phase” of Mr. Salim’s interrogation began

8 about a week after his initial detention, once he was examined by someone he 9 believed to be a doctor. Shortly after the examination, his torture increased in 10 severity. Salim Decl. ¶ 8. 11

13 Defendants’ Response: Disputed there was an “aggressive phase” of Mr.

14 Salim’s interrogation or that Mr. Salim was subject to “torture” because

15 Plaintiffs offer nothing to support these statements. Defendants do not

16 contest for purposes of Plaintiffs’ Motion that Mr. Salim’s interrogation

17 began about a week after his initial detention, after he was examined by 18 someone he believed to be a doctor, and that after the examination, 19 interrogators increased his “ill-treatment” and “used a variety of abusive 20 interrogation methods[.]” Salim Decl. ¶ 8. 21

23 Plaintiffs’ Response: Response—No record dispute. Mr. Salim does not

24 use the technical term “aggressive phase” or the word “torture” in his

25 declaration, but instead provides evidence of his experience of both.

26 “Aggressive phase” is a term used in CIA documents to describe the

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1 period when interrogators used Defendants’ methods. See e.g., ECF No. 2 182-13 at U.S. Bates 002019–23. Mr. Salim provides evidence about this 3

4 period, which lasted for about four or five weeks. ECF No. 181 ¶¶ 8-16

5 (Salim Decl.). Mr. Salim also provides evidence of the severe physical

6 and mental pain he suffered as a consequence of the methods inflicted on

7 him, i.e. his torture. Id.

9 91. Plaintiffs’ Fact: CIA records confirm that interrogators subjected Mr. Salim 10 to “enhanced interrogation techniques” that included “nudity” and “sleep 11 deprivation, water dousing, cramped confinement, facial slap, attention 12

13 grasp, belly slap, and walling.” Ladin Decl., Exh. PP at U.S. Bates 001567;

14 Ladin Decl., Exh. QQ at U.S. Bates 001609.

16 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

18 92. Plaintiffs’ Fact: Mr. Salim was stuffed, while “naked, chained and 19 shackled,” inside “a small wooden box, measuring about three square feet.” 20 Once interrogators locked him in the pitch black, rancid-smelling box, he 21

22 “vomited out of pain and fear.” Interrogators locked him in the box only

23 once, but used it repeatedly as a threat, stuffing him inside the box for short

24 intervals without locking the door. “Even the threat of the small box filled

25 [Mr. Salim] with dread.” Salim Decl. ¶ 11.

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1 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 2

4 93. Plaintiffs’ Fact: Interrogators subjected Mr. Salim to repeated walling,

5 combined with the repeated use of the attention grasp, facial slap, and

6 abdominal slap methods. They wrapped his neck in a cloth collar, pulled him

7 towards them, then slammed him into a wooden wall over and over while

8 assaulting him in the face and stomach, before interrogating him. “As the 9 session continued, it became more and more painful,” for Mr. Salim, 10 inflicting physical pain, and “severe headache[s] and dizziness immediately 11 after the session ended [and that] lasted for hours.” Salim Decl. ¶ 12. 12

14 Defendants’ Response: Disputed. Mr. Salim’s declaration does not use

15 the terms “walling,” “attention grasp,” “facial slap,” or “abdominal slap.”

16 Salim Decl. ¶ 12. The terms “walling”, “facial slap”, and “attention grasp”

17 had very specific meanings as described in the July 2002 Memo, and Mr. 18 Salim describes actions that are different from the descriptions set forth in 19 the July 2002 Memo. For instance, “walling” does not include being 20 struck in the stomach and the “facial slap” was to be done in a specific 21

22 way so as not to cause severe pain, but to induce shock. Furthermore, the

23 “abdominal slap” was not included in the July 2002 Memo. US Bates

24 001109-1111.

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1 Plaintiffs’ Response: Although Mr. Salim does not use the technical 2 terms “walling,” “attention grasp,” “facial slap,” or “abdominal slap,” he 3

4 provides evidence of his experience of these methods, and the severe

5 physical and mental pain he suffered as a consequence. ECF No. 181 ¶

6 12 (Salim Decl.). CIA records confirm that Mr. Salim was subjected to

7 these methods, and identify them as “nudity” and “sleep deprivation,

8 water dousing, cramped confinement, facial slap, attention grasp, belly 9 slap, and walling.” Fact # 91. 10

11 94. Plaintiffs’ Fact: Shortly after the walling and physical assault session, 12

13 interrogators subjected Mr. Salim to cramped confinement in a “tall, thin,

14 coffin-like box.” He was forced inside, and his hands were chained above his

15 head in a painful position. He was left in darkness, with music blasting him,

16 for two or three hours. After he was released from the box, he experienced a

17 splitting headache, and his shoulders felt dislocated. Salim Decl. ¶ 13. 18

19 Defendants’ Response: Disputed. Mr. Salim’s declaration does not use 20 the term “cramped confinement.” Salim Decl. ¶ 13. “Cramped 21

22 confinement,” as described in the July 2002 Memo, is different from what

23 Mr. Salim describes. Defendants, in their July 2002 Memo, described

24 “cramped confinement” as being “placed in a confined space the

25 dimensions of which restricts movement. The container is usually dark.”

26 Defendants did not suggest an individual should be chained to a metal rod

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1 in the box or that music should be blasted into the box. US Bates 001109- 2 1111. 3

5 Plaintiffs’ Response: Response—No record dispute. Although Mr. Salim

6 does not use the technical term “cramped confinement,” in his declaration

7 he provides evidence of his experience of this method, and the severe

8 physical and mental pain he suffered as a consequence. ECF No. 181 ¶¶ 9 11, 12 (Salim Decl.). CIA records confirm that Mr. Salim was subjected 10 to this method. Plaintiffs’ Fact # 91. 11

13 95. Plaintiffs’ Fact: Interrogators subjected Mr. Salim to a prolonged period of

14 sleep deprivation through forced standing in a painful position. His hands

15 were chained above his head, and he was positioned so that his feet barely

16 touched the floor. He was left to hang from his chains, naked, in the

17 darkness, barraged with music played at ear-splitting levels for what seemed 18 like four or five days. He was provided only sips of water, and remained 19 standing with his arms chained above his head even when he had to relieve 20 himself. He was taken down only for interrogation. Whenever he would drift 21

22 into sleep, he “was immediately jolted awake from the excruciating pain that

23 shot through [his] arms and shoulders as they momentarily supported [his]

24 full body weight.” Afterwards Mr. Salim suffered searing pain in his upper

25 and lower back. His legs became swollen, a large cut had opened on his

26 hand, and the cast covering his broken fingers began giving off a sickening

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 smell. Mr. Salim received only limited medical treatment from a doctor or 2 nurse for these years. Salim Decl. ¶ 15. 3

5 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

7 96. Plaintiffs’ Fact: Interrogators subjected Mr. Salim to various sessions in

8 which he was subjected to “enhanced interrogation techniques” in 9 combination without questioning, interspersed with sessions in which he was 10 assaulted while interrogators demanded information. Salim Decl. ¶ 8. 11

13 Defendants’ Response: Disputed. Mr. Salim’s declaration does not use

14 the term “enhanced interrogation techniques.” Rather, it states only that

15 after he was examined by a doctor, he was subjected to “a variety of

16 abusive interrogation methods.” Salim Decl. ¶ 8.

18 Plaintiffs’ Response: Response—No record dispute. Mr. Salim does not 19 use the technical term “enhanced interrogation techniques” in his 20 declaration but provides evidence of his experience of these methods, and 21

22 the severe physical and mental pain he suffered as a consequence. ECF

23 No. 181 ¶¶ 8-16 (Salim Decl.). And CIA records confirm Mr. Salim was

24 subjected to “enhanced interrogation techniques.” Plaintiffs’ Fact # 91.

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1 97. Plaintiffs’ Fact: Interrogators also subjected Mr. Salim to water dousing that 2 approximated the water board method. They stripped him naked and forced 3

4 him to lie on a large plastic sheet, after which they repeatedly doused him

5 with gallons of icy water. The water was so cold it stopped his breathing. In

6 between dousings, he was subjected to slaps and other physical assault.

7 During some of the later sessions, a hood was placed over Mr. Salim’s head.

8 When the hood was soaked, it clung to his face, causing to “choke and 9 suffocate” and feel like he was drowning. After each 20-30 minute session, 10 his interrogators “pulled up the corners of the freezing cold sheet and rolled 11 [him] inside, leaving him “to shiver violently in the cold for about 10 or 15 12

13 minutes” before further interrogation. This procedure was repeated over and

14 over for days. Salim Decl. ¶ 10.

16 Defendants’ Response: Disputed. There is no evidentiary support for

17 Plaintiffs’ assertion that “water dousing” was similar to the “water board.” 18 The July 2002 Memo describes the water board as follows: “individuals 19 are bound securely to an inclined bench. Initially a cloth is placed over the 20 subject’s forehead and eyes. As water is applied in a controlled manner, 21

22 the cloth is slowly lowered until it also covers the mouth and nose. Once

23 the cloth is saturated and completely covering the mouth and nose, subject

24 would be exposed to 20 to 40 seconds of restricted airflow. Water is

25 applied to keep the cloth saturated. After the 20 to 40 seconds of restricted

26 airflow, the cloth is removed and the subject is allowed to breach

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1 unimpeded. After 3 or 4 full breaths, the procedure may be repeated. 2 Water is usually applied from a canteen cup or small watering can with a 3

4 spout.” US Bates 001110-11. “Water dousing” on the other hand, as

5 described by Mr. Salim, involved laying a detainee on a plastic sheet or

6 towel and pouring water on the detainee from a container while the

7 interrogator questions the detainee. Water is applied so as not to enter the

8 nose or mouth and interrogators were not supposed to cover the detainee’s 9 face with a cloth. Water dousing was proposed by someone other than 10 Drs. Mitchell and Jessen in March 2003. Defs.’ SOF ¶ 265(b); Mitchell 11 Dep. 374:19-375:2. Plaintiffs do not dispute that Mr. Salim was subjected 12

13 to “water dousing” as described in Mr. Salim’s declaration, but not

14 waterboarding. Salim Decl. ¶ 10.

16 Plaintiffs’ Response: Response—No record dispute. Plaintiffs do not

17 contend that the procedures for water dousing and the waterboard were 18 similar, but that the purpose and the physical and psychological effects of 19 water dousing on Mr. Salim approximated those of Defendants’ 20 waterboard method. ECF No. 181 ¶ 10 (Salim Decl.) (“I felt like I was 21

22 drowning”).

24 98. Plaintiffs’ Fact: Interrogators also strapped Mr. Salim to a water board and

25 threatened to pour water directly into his mouth and nose. But instead they

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1 spun him around 360 degrees several times, until he was “dizzy, nauseous, 2 and completely disoriented.” Salim Decl. ¶ 14. 3

5 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

7 99. Plaintiffs’ Fact: The use of all these abuses, applied repeatedly and in

8 combination produced in Mr. Salim “a constant state of terror.” Salim Decl. 9 17. 10

11 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 12

14 100. Plaintiffs’ Fact: Mr. Salim also suffered severe physical and mental pain

15 as a result of interrogators subjecting him to Defendants’ methods. Salim

16 Decl. ¶ 18; Deposition of Suleiman Abdullah Salim 162:3–12, 167:7–19,

17 168:24–169:14, 171:9–21 (Ladin Decl., Exh. OO, cited hereinafter as “Salim 18 Dep.”). 19

20 Defendants’ Response: Disputed. Plaintiffs present no evidence that 21

22 “Defendants’ methods” were used on Mr. Salim. Defendants had no

23 involvement with how detainees were treated at COBALT. Defs.’ SOF ¶¶

24 253-265. Defendants had no involvement with how detainees were treated

25 at COBALT. Defs.’ SOF ¶¶ 253-265. In fact, as stated above, the

26 interrogation methods used on Mr. Salim differed from those proposed by

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1 Defendants. Plaintiffs’ also mischaracterize Mr. Salim’s testimony. Mr. 2 Salim testified that his long term injuries include “dizziness,” “pain in 3

4 [his] arms,” and “pains in [his] back and around [his] waist.” Mr. Salim

5 also claimed that he has an “eye problem” but admitted that no doctor

6 ever told him his eye problem was related to his detention at COBALT.

7 Furthermore, Mr. Salim does not categorize any of these injuries as

8 “severe” and was unable to describe the level of pain he allegedly 9 endured. Salim Dep. at 162:3-12, 167:7-19, 168:24-169:14, 171:9-21. 10 Additionally, Mr. Salim admitted to experiencing flashbacks, but those 11 flashbacks were not limited to his time at COBALT, but included his time 12

13 at Bagram in military custody. Salim Dep. at 265:22-266:17.

15 Plaintiffs’ Response: Response—Speculation about multiple programs.

16 Response—No record dispute. CIA records confirm that Mr. Salim was

17 subjected to Defendants’ methods. Plaintiffs’ Fact # 91. Although in the 18 cited deposition testimony, Mr. Salim does not use the specific word 19 “severe,” he describes the abuse he suffered at COBALT, and its 20 consequences, including PTSD symptoms (flashbacks). Deposition of 21

22 Suleiman Abdullah Salim 265:22–266:17 (McGrady Decl., Exh. H). Mr.

23 Salim’s deposition testimony in no way undermines evidence provided by

24 him in his declaration on the severity of his injuries, which describe the

25 “excruciating physical and mental effects of [his] time in the Darkness

26 and the interrogators’ abusive treatment of [him]. My whole body still

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 aches, my upper and lower back especially. I regularly suffer crippling 2 flashbacks and nightmares. They’re a constant reminder of that place and 3

4 the terrible things that were done to me there.” ECF No. 181 ¶ 18 (Salim

5 Decl.).

7 101. Plaintiffs’ Fact: Interrogators’ repeated application of Defendants’

8 methods broke Mr. Salim physically and mentally to the point that he 9 attempted to take his own life by overdosing on painkillers that CIA medics 10 had given to him and that he had stockpiled over the weeks of his 11 confinement at COBALT. Salim Decl. ¶ 17. 12

14 Defendants’ Response: Disputed. Plaintiffs present no evidence that

15 “Defendants’ methods” were used on Mr. Salim. Defendants had no

16 involvement with how detainees were treated at COBALT. Defs.’ SOF ¶¶

17 253-265. In fact, as stated above, the interrogation methods used on Mr. 18 Salim differed from those proposed by Defendants. Plaintiffs also 19 misrepresent Mr. Salim’s declaration. Mr. Salim states that as a result of 20 the “interrogators’ abusive methods and the inhumane conditions” he 21

22 decided to end his life and he attempted to swallow painkillers that he had

23 stockpiled. Mr. Salim does not connect Defendants to his treatment at

24 COBALT nor does he claim that he was “broke[n] physically or

25 mentally[.]” Salim Decl. ¶ 17.

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1 Plaintiffs’ Response: Response—Speculation about multiple programs. 2 Response—No record dispute. CIA records confirm Mr. Salim was 3

4 subjected to Defendants’ methods. Plaintiffs’ Fact # 91. Contrary to

5 Defendants’ response, which completely mischaracterizes the record

6 evidence, Mr. Salim draws a direct link between Defendants’ methods,

7 how they broke him physically and mentally, and his suicide attempt.

8 ECF No. 181 ¶17 (Salim Decl.). 9

10 102. Plaintiffs’ Fact: Interrogators stopped the “aggressive phase” of Mr. 11 Salim’s immediately after his unsuccessful suicide attempt and transferred 12

13 him from the interrogation cell at COBALT to another CIA facility nearby.

14 Ladin Decl., Exhibit OO, Salim Dep. 180:12–181:12.

16 Defendants’ Response: Disputed. Mr. Salim testified only that he was at

17 the other CIA facility, which he called “Salt Pit,” for one year and some 18 months. The testimony does not state there was an “aggressive phase” of 19 Mr. Salim’s interrogation nor does it state Mr. Salim was transferred to 20 the “Salt Pit” immediately after he unsuccessfully attempted to commit 21

22 suicide. Plaintiffs do not provide any other admissible evidence to support

23 these statements. Salim Dep. 180:12-181:12.

25 Plaintiffs’ Response: Response—No record dispute. As explained in

26 Plaintiffs’ Response to Fact #90, “aggressive phase” is a term used in CIA

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1 documents to describe the period when interrogators used Defendants’ 2 methods. See e.g., ECF No. 182-13 at U.S. Bates 002019–23. Mr. Salim 3

4 specifically explains that interrogators stopped using Defendants’

5 methods after he attempted to commit suicide, and before he was

6 transferred to another prison nearby. ECF No. 181 ¶ 17 (Salim Decl.).

8 103. Plaintiffs’ Fact: Mr. Salim was detained by the CIA without charge or 9 trial for another year and several months. Salim Decl. ¶ 17. 10

11 Defendants’ Response: Disputed. Mr. Salim’s declaration states only that 12

13 he was transferred to another CIA prison nearby. Salim Decl. ¶ 17.

15 Plaintiffs’ Response: Response—No record dispute. As Defendants

16 admit in their response to Fact #102, Mr. Salim testified “that he was at

17 the other CIA facility, which he called ‘Salt Pit,’ for one year and some 18 months.” 19

20 104. Plaintiffs’ Fact: On June 9, 2004, the CIA transferred Mr. Salim from its 21

22 custody to the custody of the U.S. Department of Defense at Bagram Air

23 Force Base, where Mr. Salim was held without charge or trial, until August

24 2008. Ladin Decl., Exh. PP at U.S. Bates 001567; Ladin Decl., Exhibit OO,

25 Salim Dep. 218:12–16.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 2

4 105. Plaintiffs’ Fact: While he was detained at Bagram, the Department of

5 Defense determined that Mr. Salim had not been involved in terrorist

6 operations, and that there was no basis to detain him. Ladin Decl., Exh. RR at

7 U.S. Bates 001529.

9 Defendants’ Response: Disputed. US Bates 001529 states a “review led 10 to the conclusion that although [Salim] was an associate of the 11 conspirators, he was uniformly considered too addicted to drugs to be 12

13 trusted with operations.” US Bates 001529 does not support Plaintiffs’

14 statements that the DoD determined he “had not been involved in terrorist

15 operations” or that there had been “no basis to detain him.” Ladin Decl.,

16 Exh. RR at U.S. Bates 001529.

18 Plaintiffs’ Response: Response—No record dispute. The cited document 19 concludes that Mr. Salim had not been involved with “operations” prior to 20 his detention, and reclassifies him as an “NLEC”—a designation that 21

22 requires that the prisoner be released. See ECF No. 121-2 at 000163.

24 106. Plaintiffs’ Fact: In August 2008, the Department of Defense released Mr.

25 Salim with a certification that he “has been determined to pose no threat to

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 the United States Armed Forces or its interests in Afghanistan.” Ladin Decl., 2 Exh. SS. 3

5 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

7 107. Plaintiffs’ Fact: Mr. Ben Soud was held at COBALT for over a year,

8 between April 2003 and April 2004. Ben Soud Decl. ¶ 3. 9

10 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 11

13 108. Plaintiffs’ Fact: At COBALT, Mr. Ben Soud was subjected to conditions

14 that included deprivation of natural light and any ability to distinguish

15 between day and night, continuous loud music and noise, isolation, and

16 deprivation of amenities beyond a bucket for human waste. These “extremely

17 harsh and debilitating” conditions caused him “severe mental anguish and 18 distress.” Ben Soud Decl. ¶ 6. 19

20 Defendants’ Response: Defendants state that they played no role in 21

22 determining the conditions under which Mr. Ben Soud was held or the

23 interrogation techniques employed while he was in CIA custody. Defs.’

24 SOF ¶¶ 274-282. Not contested for purposes of Plaintiffs’ Motion.

26 Plaintiffs’ Response: Response—Speculation about multiple programs.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

2 109. Plaintiffs’ Fact: Mr. Ben Soud was deprived of sleep by being chained 3

4 and shackled in painful positions. Guards chained him in three different

5 stress positions, which caused him acute back and knee pain and exacerbated

6 the pain in his broken left foot. Ben Soud Decl. ¶ 7. When Mr. Ben Soud

7 could not be forced to stand because of his broken foot, guards would bang

8 loudly on the door to his cell to keep him awake. Once the cast on his leg was 9 removed, guards would unchain him and forcibly march him around the 10 prison, naked, every half-hour throughout the night. Mr. Ben Soud found the 11 experience “extremely humiliating and degrading,” and “incredibly painful, 12

13 especially in [his] foot, which had only recently healed.” Ben Soud Decl. ¶ 8.

15 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion

17 110. Plaintiffs’ Fact: For the first two months at COBALT, Mr. Ben Soud was 18 kept naked or in diapers. In May 2003, after the worst of his torture was over, 19 interrogators finally provided Mr. Ben Soud with clothing for the first time. 20 Ben Soud Decl. ¶ 11. 21

23 Defendants’ Response: Disputed. Mr. Soud’s declaration states only that

24 Mr. Soud was kept naked until May 2003. The declaration does not

25 indicate Mr. Soud was subject to “torture.” Plaintiffs do not provide any

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 other admissible evidence to support this additional statement. Ben Soud 2 Decl. (ECF No. 180) ¶ 11. 3

5 Plaintiffs’ Response: Response—No record dispute. In the cited

6 declaration paragraph, Mr. Ben Soud states: “Until about the end of May

7 2003, I was kept naked or in diapers.” Mr. Ben Soud states that he was

8 held at COBALT from April 2003 to April 2004, ECF No. 180 ¶ 3 (Ben 9 Soud Decl.), meaning he was kept naked or in diapers for the first two 10 months at COBALT. Although Mr. Ben Soud does not use the word 11 “torture,” throughout his declaration he describes the physical and mental 12

13 pain and suffering he suffered as a consequence of his abuse at COBALT.

14 Id. ¶¶ 5, 6-19.

16 111. Plaintiffs’ Fact: Deprivation of clothing and use of diapers had the

17 desired impact on Mr. Ben Soud, who, as a devout man, found the forced 18 nudity “especially humiliating and degrading,” and felt “vulnerable and 19 helpless.” Ben Soud Decl. ¶ 11. 20

22 Defendants’ Response: Disputed. Plaintiffs offer no admissible evidence

23 to support their assertion as to the “desired impact” on Mr. Ben Soud. Ben

24 Soud Decl. ¶ 11. Defendants do not contest the description of Mr. Salim’s

25 feelings. Ben Soud Decl. ¶ 11.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs’ Response: Response—No record dispute. See also Fact #66. 2

4 112. Plaintiffs’ Fact: The “aggressive phase” of Mr. Ben Soud’s interrogation

5 began some two weeks after his initial detention at COBALT, after CIA

6 interrogators had repeatedly asked him the same questions. Ben Soud Decl. ¶

7 9, 10.

9 Defendants’ Response: Disputed. Mr. Ben Soud’s declaration states only 10 that Mr. Ben Soud’s interrogation increased in severity about two weeks 11 after his initial detention at COBALT, after CIA interrogators had 12

13 repeatedly asked him the same questions. The declaration does not

14 indicate there was an “aggressive phase” of Mr. Ben Soud’s interrogation.

15 Plaintiffs do not provide any other admissible evidence to support this

16 assertion. Ben Soud Decl. ¶¶ 9, 10.

18 Plaintiffs’ Response: Response—No record dispute. Although Mr. Ben 19 Soud does not use the technical term “aggressive phase” in his 20 declaration, he provides evidence of his experience of it. “Aggressive 21

22 phase” is a term used in CIA documents to describe the period when

23 interrogators used Defendants’ methods on a detainee. See e.g., ECF No.

24 182-13 at U.S. Bates 002019–23. Mr. Ben Soud provides evidence of this

25 period, which lasted for about five or six weeks when CIA interrogators

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 used Defendants’ methods on him. ECF No. 180 ¶¶ 10–19 (Ben Soud 2 Decl.). 3

4 113. Plaintiffs’ Fact: CIA records confirm that interrogators subjected Mr. Ben

5 Soud to “enhanced interrogation techniques” that included “nudity, sleep

6 deprivation, insult slap, abdominal slap, attention grasp, cramped

7 confinement, water dousing, walling, stress positions,” dietary manipulation,

8 and “facial hold.” Ladin Decl., Exh. PP at U.S. Bates 001581; Ladin Decl., 9 Exh. QQ at U.S. Bates 001609. 10

11 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion. 12

14 114. Plaintiffs’ Fact: Interrogators subjected Mr. Ben Soud to repeated

15 sessions of the walling method in combination with facial slap and

16 abdominal slap methods over a four or five week-long period. The sessions

17 followed a methodical procedure: an interrogator would place a foam collar 18 around Mr. Ben Soud’s neck, slap him firmly in the face and then the 19 stomach, and then throw him repeatedly against a wooden wall. Each time he 20 was smashed into the wall, the noise was “deafening and terrifying.” The 21

22 process would be repeated for 20 or 30 minute sessions, and was interspersed

23 with questioning. The walling method and questioning were repeated over

24 and over, “on a daily basis for many hours. As the sessions continued, they

25 became increasingly painful. [Mr. Ben Soud] developed a severe headache

26 and dizziness immediately after a session ended, which lasted for hours

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 thereafter.” As Mr. Ben Soud’s interrogations became more aggressive, the 2 sessions increased in ferocity resulting in “more acute pain in [his] body, 3

4 headaches and dizziness.” Ben Soud Decl. ¶ 12.

6 Defendants’ Response: Disputed. Mr. Ben Soud’s declaration does not

7 use the terms “walling,” “facial slap,” or “abdominal slap.” Terms

8 “walling,” “facial slap,” or “abdominal slap” had very specific meanings 9 described in the July 2002 Memo, and Mr. Ben Soud describes actions 10 that are different from the descriptions for the EITs in the July 2002 11 Memo. For instance, “walling” does not include being struck in the 12

13 stomach and the “facial slap” was to be done in a specific way so as not to

14 cause severe pain, but to induce shock. Furthermore, the “abdominal slap”

15 was not included in the July 2002 Memo. US Bates 001109-1111.

17 Plaintiffs’ Response: Response—No record dispute. Although Mr. Ben 18 Soud does not use the technical terms “walling,” “attention grasp,” “facial 19 slap,” or “abdominal slap,” he provides evidence of his experience of 20 these methods, and the severe physical and mental pain he suffered as a 21

22 consequence. ECF No. 180 ¶ 12 (Ben Soud Decl.). CIA records confirm

23 that Mr. Ben Soud was subjected to these methods. Plaintiffs’ Fact # 113.

25 115. Plaintiffs’ Fact: Interrogators subjected Mr. Ben Soud to cramped

26 confinement in a tall thin wooden box, with his arms chained over his head

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1 and loud music blasting in his ears. Ben Soud Decl. ¶ 15. Interrogators also 2 subjected Mr. Ben Soud to cramped confinement in a significantly smaller 3

4 box, measuring approximately 3 ft by 3 ft. He was locked inside for roughly

5 forty-five minutes, and experienced physical and mental pain, including

6 “acute lower back pain,” severe leg pain—particularly in the leg with the

7 broken foot, and in his knees, neck, and elbows. He was filled with dread

8 when interrogators would later repeatedly threaten to stuff him back inside 9 the box. Ben Soud Decl. ¶ 16. 10

11 Defendants’ Response: Disputed. Mr. Ben Soud’s declaration does not 12

13 use the term “cramped confinement.” The “Cramped confinement” as

14 described in the July 2002 Memo is different from what Mr. Ben Soud

15 experienced. Defendants, in the July 2002 Memo, described “cramped

16 confinement” as being “placed in a confined space the dimensions of

17 which restricts movement. The container is usually dark.” Defendants did 18 not suggest an individual should be chained to a metal rod in the box or 19 that music should be blasted into the box. US Bates 001109-1111. 20

22 Plaintiffs’ Response: Response—No record dispute. Although Mr. Ben

23 Soud does not use the technical term “cramped confinement,” he provides

24 evidence of his experience of this method, and the severe physical and

25 mental pain he suffered as a consequence. ECF No. 180 ¶¶ 15, 16 (Ben

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Soud Decl.). CIA records confirm that Mr. Ben Soud was subjected to this 2 method. Plaintiffs’ Fact # 113. 3

4 116. Plaintiffs’ Fact: Towards the end of the “aggressive phase” of Mr. Ben

5 Soud’s interrogation, interrogators subjected Mr. Ben Soud to a new sleep

6 deprivation method, involving a painful standing stress position. For roughly

7 36 hours he was hung by the arms from a metal rod, naked and positioned so

8 that the balls of his feet (one of which was broken) barely touched the 9 ground. Although the room was pitch-black it was impossible to fall asleep, 10 and loud music was blasted for the duration of his time in the sleep 11 deprivation cell. “After a very short time, alone in that room and unable to 12

13 sleep, [Mr. Ben Soud] began to hallucinate and slowly became hysterical.”

14 Once he was released, he was unable to walk and guards had to carry him to

15 an examination room for treatment. His legs “had become engorged and

16 swollen with fluid,” in particular the leg that had been broken. “Both limbs

17 were excruciatingly painful,” as were his arms and back. The pain lasted for 18 many days, and remains with him. Ben Soud Decl. ¶ 17. 19

20 Defendants’ Response: Disputed that Mr. Ben Soud’s declaration states 21

22 there was an “aggressive phase” of Mr. Ben Soud’s interrogation. Ben

23 Soud Decl. ¶ 17. Further disputed that the pain Mr. Ben Soud experiences

24 has remained the same, when Mr. Ben Soud testified that the pain he feels

25 in his back has lessened over time. Soud Dep. at 250:11-252:1.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs’ Response: Response—No record dispute. “Aggressive phase” 2 is a technical term used in CIA documents to describe the period when 3

4 interrogators used Defendants’ methods. See e.g. ECF No. 182-13 at U.S.

5 Bates 002019–23. Mr. Ben Soud provides evidence of this period, which

6 lasted for about five or six weeks. ECF No. 180 ¶¶ 8–16, (Ben Soud

7 Decl.). Defendants do not dispute that Mr. Ben Soud’s pain lasted several

8 days, that it was severe, or that it remains; Mr. Ben Soud has said it has 9 lessened. 10

11 117. Plaintiffs’ Fact: During the “aggressive phase,” interrogators subjected 12

13 Mr. Ben Soud to additional coercive methods, including water dousing and

14 another approximation of waterboarding. During the water dousing sessions,

15 guards would force him, naked, onto a large plastic sheet, which they pulled

16 up to form a shallow basin. They doused him with buckets of cold water until

17 he was partially submerged. The water was so cold that it was physically 18 painful, and he shivered violently. The sessions lasted about half an hour to 19 forty minutes, sometimes longer, and were interspersed with interrogations 20 where Mr. Ben Soud, naked and shivering, was questioned. After about two 21

22 weeks, the method’s intensity was increased by placing a hood over Mr. Ben

23 Soud’s head prior to pouring the water. The addition of the hood caused him

24 to feel like he was drowning. Mr. Ben Soud was subjected to this water

25 treatment multiple times a day for four or five weeks. Ben Soud Decl. ¶13.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Defendants’ Response: Disputed. There is no evidentiary support for 2 Plaintiffs’ assertion that “water dousing” was similar to the “waterboard”. 3

4 Defendants’ July 2002 Memo describes the water board as follows:

5 “individuals are bound securely to an inclined bench. Initially a cloth is

6 placed over the subject’s forehead and eyes. As water is applied in a

7 controlled manner, the cloth is slowly lowered until it also covers the

8 mouth and nose. Once the cloth is saturated and completely covering the 9 mouth and nose, subject would be exposed to 20 to 40 seconds of 10 restricted airflow. Water is applied to keep the cloth saturated. After the 11 20 to 40 seconds of restricted airflow, the cloth is removed and the subject 12

13 is allowed to breach unimpeded. After 3 or 4 full breaths, the procedure

14 may be repeated. Water is usually applied from a canteen cup or small

15 watering can with a spout.” US Bates 001110-11. “Water dousing” on the

16 other hand, as described by Mr. Ben Soud, was when a detainee is laid

17 down on a plastic sheet or towel and water is poured on the detainee from 18 a container while the interrogator questions the detainee. Water is applied 19 so as not to enter the nose or mouth and interrogators were not supposed 20 to cover the detainee’s face with a cloth. Water dousing was proposed by 21

22 someone other than Drs. Mitchell and Jessen in March 2003. Defs.’ SOF ¶

23 265(b); Mitchell Dep. 374:19-375:2. Furthermore, Mr. Ben Soud’s

24 declaration does not indicate there was an “aggressive phase” of his

25 interrogation and Plaintiffs do not provide any other admissible evidence

26 to support this additional statement. Defendants do not dispute that Mr.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Ben Soud was subject to “water dousing” as described in Mr. Ben Soud’s 2 declaration. Ben Soud Decl. ¶ 13. 3

5 Plaintiffs’ Response: Plaintiffs do not contend that the procedures for

6 water dousing and the waterboard were similar, but that the purpose and

7 the physical and psychological effects of water dousing on Mr. Ben Soud

8 approximated those of Defendants’ waterboard method. ECF No. 180 ¶ 9 13 (Ben Soud Decl.) (“I felt like I was drowning.”). Although Mr. Ben 10 Soud does not use the technical term “aggressive phase,” he describes 11 being subjected to Defendants’ methods, a process the CIA (and the 12

13 interrogation team of which Defendants were members) labelled as the

14 “aggressive phase.” See ECF No. 182-13 at U.S. Bates 002019–23.

16 118. Plaintiffs’ Fact: Mr. Ben Soud was also strapped to a waterboard with a

17 hood placed over his head. He was then spun around, and buckets of cold 18 water were poured over him while his feet were elevated. The water ran into 19 his mouth and up his nose, causing him to feel like he was drowning as he 20 choked and struggled for breath. “Although interrogators did not pour water 21

22 directly over [his] mouth and nose, they threatened to do so if [he] didn’t

23 cooperate.” The threat terrified him. Ben Soud Decl. ¶ 14.

25 Defendants’ Response: Disputed to the extent Plaintiffs’ claim this

26 constituted waterboarding, which had a specific meaning as set forth in

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 the July 2002 Memo. US Bates 001109-11. Furthermore, Plaintiffs admit 2 that what Mr. Ben Soud was subject to was not an authorized technique. 3

4 Mr. Soud’s Response to Jessen’s RFA at No. 7.

6 Plaintiffs’ Response: Plaintiffs do not claim that the procedure described

7 by Mr. Ben Soud “constituted waterboarding,” or was “authorized.”

9 119. Plaintiffs’ Fact: Interrogators subjected Mr. Ben Soud to various sessions 10 in which he was subjected to “enhanced interrogation techniques” in 11 combination, interspersed with interrogation sessions when he would be 12

13 assaulted while interrogators demanded information. During these sessions,

14 the combined physical assaults (consisting of repeated uses of the attention

15 grasp, facial hold, facial slap, and abdominal slap methods) caused him

16 “acute pain” which lasted for hours after the interrogations. Ben Soud Decl.

17 ¶18. 18

19 Defendants’ Response: Disputed. Mr. Ben Soud’s declaration does not 20 use the term “enhanced interrogation techniques,” “walling,” “facial 21

22 hold,” “facial slap,” or “abdominal slap.” In fact, it does not even use the

23 term “assault.” Rather, it states that Mr. Ben Soud was subject to repeated

24 beatings, which caused him “acute pain.” Salim Decl. ¶ 18. Defendants

25 further respond that the July 2002 Memo did not propose beatings, nor is

26 it apparent from Mr. Ben Soud’s description whether any of the treatment

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 described is consistent with Defendants’ suggestions. US Bates 001109- 2 11. 3

5 Plaintiffs’ Response: Response—No record dispute. Mr. Ben Soud did

6 not use the technical terms in his declaration but describes his personal

7 experience of Defendants’ methods as applied to him, and their

8 consequences. CIA records confirm that interrogators subjected Mr. Ben 9 Soud to “enhanced interrogation techniques” that included “insult slap,” 10 “abdominal slap,” “attention grasp,” “walling,” and “facial hold.” Fact 11 #113. 12

14 120. Plaintiffs’ Fact: Interrogators stopped the aggressive phase of Mr. Ben

15 Soud’s torture about five or six weeks after they had started it. Ben Soud

16 Decl. ¶ 5, 19.

18 Defendants’ Response: Disputed. Mr. Ben Soud’s declaration does not 19 indicate there was an “aggressive phase” of his interrogation, nor does it 20 claim Mr. Ben Soud was “tortured.” Plaintiffs do not provide any other 21

22 admissible evidence to support these statements. Defendants do not

23 dispute that Mr. Ben Soud’s interrogation lessened around the end of May

24 2003. Ben Soud Decl. ¶¶ 5, 19.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs’ Response: Response—No record dispute. Mr. Ben Soud does 2 not use the technical term “aggressive phase” or the word “torture” in his 3

4 declaration. Instead Mr. Ben Soud describes his experience of both.

5 “Aggressive phase” is a term used in CIA documents to describe the

6 period when interrogators used Defendants’ methods on a detainee. See

7 e.g., ECF No. 182-13 at U.S. Bates 002019–23. Mr. Ben Soud provides

8 evidence of the abuse he suffered during this period, which lasted for 9 about five or six weeks, ECF No. 180 ¶¶ 5–19 (Ben Soud Decl.). Mr. Ben 10 Soud also provides evidence of the severe physical and mental pain he 11 suffered as a consequence, i.e., his torture. Id. 12

14 121. Plaintiffs’ Fact: Mr. Ben Soud suffered severe mental and physical pain

15 as a result of the combination of abuses he was subjected to, in combination

16 with the humiliating and degrading conditions of his confinement. He felt

17 “completely hopeless and helpless,” and experienced “a constant state of 18 terror, apprehension and dread,” which began to let up only “once 19 interrogators stopped using some of the worst of their interrogation methods, 20 around the end of May, 2003.” Ben Soud Decl. ¶ 19. 21

23 Defendants’ Response: Not contested for purposes of Plaintiffs’ Motion.

25 122. Plaintiffs’ Fact: Mr. Ben Soud was detained by the CIA until August

26 2004, when the CIA transferred Mr. Ben Soud to the custody of the Qaddafi

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1 dictatorship in Libya. Mr. Ben Soud was imprisoned by the Qaddafi regime 2 for his membership in a group opposed to the dictatorship, and remained in 3

4 prison until Qaddafi’s overthrow in January 2011. Deposition of Mohamed

5 Ahmed Ben Soud 225:17–226:7, 228:4–16, 238:16–23 (Ladin Decl., Exh.

6 TT). Mr. Ben Soud never fought against the United States. Ben Soud Decl.

7 20.

9 Defendants’ Response: Defendants’ object to this “fact” as compound. 10 (a) Not contested for purposes of Plaintiffs’ Motion that Mr. Ben Soud 11 was detained by the CIA until August 2004. Defendants object to the 12

13 remainder of this asserted fact as irrelevant to the resolution of the issues

14 presented in Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. EVID.

15 401, 402).

16 (b) Through his dealings with the Libyan Islamic Fighting Group

17 (“LIFG”), Mr. Ben Soud had meetings with Abu Faraj al-Libi, who Mr. 18 Ben Soud knew was a member of Al-Qa’ida. After September 11, 2001, 19 members of LIFG started cooperating with Al-Qa’ida. Defs.’ SOF ¶¶ 275- 20 76. 21

23 Plaintiffs’ Response: Response—No record dispute. Response to (b)—

24 irrelevant.

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 123. Plaintiffs’ Fact: After Qaddafi was killed in 2011, President Obama 2 announced that “the dark shadow of tyranny has been lifted” from Libya. 3

4 Remarks by the President on the Death of Muammar Qaddafi, Oct. 20, 2011.

5 https://obamawhitehouse.archives.gov/the-press-office/2011/10/20/remarks-

6 president-death-muammar-qaddafi (Ladin Decl., Exh. UU).

8 Defendants’ Response: Defendants object to this “fact” as irrelevant to 9 the resolution of the issues presented in Plaintiffs’ Motion (FED. R. CIV. 10 P. 56(e)(1); FED. R. EVID. 401, 402). 11

13 124. Plaintiffs’ Fact: As the years progressed, Defendants remained “involved

14 in the selection and development of interrogation and exploitation

15 techniques” and were “instrumental in training and mentoring other CIA

16 interrogators and debriefers.” Ladin Decl., Exh. VV at U.S. Bates 001585–

17 86. 18

19 Defendants’ Response: Disputed as related to Plaintiffs. The CIA 20 conducted training in “High-Value Target” interrogation techniques in 21

22 late 2002. The training was designed, developed, and conducted by

23 individuals from CTC other than Drs. Mitchell and Jessen, and Drs.

24 Mitchell and Jessen played no role in the interrogation training.

25 Individuals from JPRA were instructors at this training. Defs.’ SOF ¶ 226.

26 Dr. Mitchell testified that he was not involved in training or mentoring

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1 until after 2005. Mitchell Dep. 343:6-344:11. Defendants further object to 2 this “fact” as irrelevant to the resolution of the issues presented in 3

4 Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. EVID. 401, 402)

5 because as of August 2004, Plaintiffs were not in CIA custody. Defs.’

6 SOF ¶¶ 273, 277-78, 324.

8 Plaintiffs’ Response: Response—No record dispute. Defendants 9 themselves argued that the post-2004 contract cited here is relevant, see 10 2:16-mc-00036-JLQ, ECF No. 32 at 9–10, and the Court ordered its 11 production, see 2:16-mc-00036-JLQ, ECF No. 47 at 6–8. Defendant 12

13 Mitchell’s cited testimony does not establish that Defendant Jessen was

14 not involved in training or mentoring interrogators prior to 2005.

16 125. Plaintiffs’ Fact: Defendants formed Mitchell, Jessen & Associates to

17 meet the “growing demand for expert consultation, operational interrogation 18 and exploitation capabilities” in the CIA program. Id. at U.S. Bates 001586. 19 Defendants’ company acquired a “sole source contract to support CTC’s 20 rendition, detention, and interrogation program.” Ladin Decl., Exh. WW at 21

22 U.S. Bates 001629. Mitchell, Jessen & Associates contracted with the CIA to

23 continue providing “professional services by Drs. Mitchell and Jessen.”

24 Ladin Decl., Exh. XX at U.S. Bates 001906. Defendants submitted a

25 technical proposal for their company, claiming they would respond to a need

26 “to continue developing and refining the program,” as “an outside source of

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 professional expertise in the area of human exploitation, interrogation, 2 debriefing, and the management of detainees in ways that facilitate 3

4 intelligence collection.” Ladin Decl., Exh. VV at U.S. Bates 001585.

6 Defendants’ Response: Not disputed for purposes of Plaintiffs’ Motion,

7 but Defendants object to these facts as irrelevant to the resolution of the

8 issues presented in Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. 9 EVID. 401, 402) because when Mitchell, Jessen & Associates (“MJA”) 10 was formed in 2005, Plaintiffs were no longer in CIA custody. Defs.’ SOF 11 ¶¶ 273, 277-78, 324, 336. 12

14 Plaintiffs’ Response: Defendants consistently argue that their

15 involvement in the CIA program was limited to providing a list of

16 methods in 2002. Evidence of their subsequent pervasive involvement in

17 and profit from the program is relevant to the knowledge and intent 18 elements of Plaintiffs’ claims and Defendants’ liability for those claims. 19

20 126. Plaintiffs’ Fact: In 2006, Defendants spent several days considering 21

22 refinements to their list of methods, and decided that “nudity, slaps, facial

23 holds, dietary manipulation, and cramped confinement,” were, in fact,

24 “completely unnecessary.” Defendants believed walling and sleep

25 deprivation were essential. They briefed their “recommendations to the mid-

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 level CIA officers who were working the issue for CIA leadership.” Ladin 2 Decl., Exh. E at MJ00022862 3

5 Defendants’ Response: Not disputed for purposes of Plaintiffs’ Motion,

6 but Defendants object as irrelevant to the resolution of the issues

7 presented in Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. EVID.

8 401, 402) because as of August 2004, Plaintiffs were no longer in CIA 9 custody. Defs.’ SOF ¶¶ 273, 277-78, 324. 10

11 Plaintiffs’ Response: Defendants’ refinement of their methods, and their 12

13 conclusion that certain of the methods were “completely unnecessary,” is

14 relevant to Defendants’ lack of qualification to devise an interrogation

15 program in the first place, the experimental nature of Defendants’

16 methods, and the pure brutality of what Plaintiffs endured as a result.

18 127. Plaintiffs’ Fact: In 2007, Secretary of State Condoleezza Rice wanted a 19 personal briefing on the program from its original architects. Defendants, 20 accompanied by John Rizzo, met with the Secretary. Ladin Decl., Exh. EE, 21

22 Rizzo Dep. 68:14¬69:8. During the discussion of sleep deprivation, the

23 Secretary of State expressed concern that Defendants’ method—which

24 involved shackling a prisoner’s hands to an overhead tether—evoked an

25 image similar to the prisoner abuse scandal that had taken place at Abu

26 Ghraib. Ladin Decl., Exh. YY at U.S. Bates 001175–76. Defendants

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 “indicated the possibility of devising alternative methods to deprive sleep,” 2 and resolved to “work on alternative methods for implementing sleep 3

4 deprivation EIT and propose courses of action.” Id. at U.S. Bates 001176–77.

6 Defendants’ Response: Defendants object to this “fact” as compound.

7 Defendants further object to this fact as irrelevant to the resolution of the

8 issues presented in Plaintiffs’ Motion (FED. R. CIV. P. 56(e)(1); FED. R. 9 EVID. 401, 402) because as of August 2004, Plaintiffs were no longer in 10 CIA custody. Defs.’ SOF ¶¶ 273, 277-78, 324. 11 Defendants do not dispute that Defendants met with Secretary of State 12

13 Condoleezza Rice and John Rizzo as set out in US Bates 001175-76 and

14 that Mr. Rizzo referenced Defendants as “the original architects of the

15 program.”

16 Disputed that there was one overarching CIA interrogation program, and

17 specifically that the interrogation methods posed by the Defendants were 18 the basis of interrogation for any Plaintiff. The interrogation methods 19 proposed by Defendants became the basis only for the CIA’s interrogation 20 of Zubaydah and later the CIA’s HVD Program. Rodriguez Dep. 183:22- 21

22 184:25; 186:17-20; Defs.’ SOF ¶¶ 209-11.

24 Plaintiffs’ Response: Response—Speculation about multiple programs.

25 Further, the fact that both John Rizzo and Secretary Rice considered

26 Defendants the “original architects” of the program is relevant to

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs’ claim of causation. In addition, the fact that Defendants were 2 tasked with devising new methods further supports that Defendants 3

4 played a central role in designing the CIA program.

6 128. Plaintiffs’ Fact: Defendants played additional leading roles in the

7 program, including “provid[ing] high-level briefings to the 7th floor,” i.e., to

8 CIA’s top management, as well as the production of papers evaluating and 9 justifying the use of “coercive physical pressures” as part of interrogation. 10 Ladin Decl., Exh. ZZ at U.S. Bates 001909; Ladin Decl., Exh. AAA at U.S. 11 Bates 002285–2291. 12

14 Defendants’ Response: Defendants object to this “fact” as irrelevant to

15 the resolution of the issues presented in Plaintiffs’ Motion (FED. R. CIV.

16 P. 56(e)(1); FED. R. EVID. 401, 402) because US Bates 001909 discusses

17 the actions of MJA, which was formed in 2005 and US Bates 002285-91 18 was drafted in February 2005. Ladin Decl., Exh. ZZ at U.S. Bates 001909; 19 Ladin Decl., Exh. AAA at U.S. Bates 002285-91. As of August 2004, 20 Plaintiffs were no longer in CIA custody. Defs.’ SOF ¶¶ 273, 277-78, 324. 21

23 Disputed. Plaintiffs mischaracterize US Bates 002285-91, which is a

24 paper titled “Interrogation and Coercive Physical Pressures: A Quick

25 Overview.” This document explains some pros and cons to applying

26 “legal and approved coercive interrogation techniques” on “high value

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 detainees[.]” In this paper, Defendants again reiterated that if 2 interrogation techniques were applied improperly, it could induce a 3

4 “severe sense of hopelessness” that would undermine efforts to obtain

5 intelligence. Ladin Decl., Exh. AAA at U.S. Bates 002285–2291

7 Disputed that there was one overarching CIA interrogation program, and

8 specifically that the interrogation methods posed by the Defendants were 9 the basis of interrogation for any Plaintiff. The interrogation methods 10 proposed by Defendants became the basis only for the CIA’s interrogation 11 of Zubaydah and later the CIA’s HVD Program. Rodriguez Dep. 183:22- 12

13 184:25; 186:17-20; Defs.’ SOF ¶¶ 209-11.

15 Plaintiffs also mischaracterize US Bates 001909. The document does not

16 state that “Defendants played additional leading roles in the program”, but

17 outlines the areas in which the CIA contracted with MJA. As discussed 18 earlier, Defendants were involved only in the CIA’s HVD Program, and 19 specifically were not involved with the interrogation for Plaintiffs Salim 20 and Ben Soud. Ladin Decl., Exh. ZZ at U.S. Bates 001909; see Defs.’ 21

22 Resp. Pls.’ SOF ¶ 54.

24 Plaintiffs’ Response: Response—No record dispute. Response—

25 Speculation about multiple programs. This fact is relevant because it

26 shows that Defendants had a central role in devising, refining, and

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 justifying the CIA program. It also confirms Plaintiffs’ theory of 2 causation, and refutes Defendants’ claims that their involvement in the 3

4 CIA program was limited to proposing methods in 2002. As to the

5 remainder of Defendants’ objections, Plaintiffs do not mischaracterize the

6 documents, which speak for themselves.

8 129. Plaintiffs’ Fact: Defendants were personally paid millions of dollars by 9 the CIA as independent contractors for “research and development as well as 10 operational services.” Ladin Decl., Exh. XX at U.S. Bates 001906. 11

13 Defendants’ Response: Defendants object to these “facts” as irrelevant to

14 the resolution of the issues presented in Plaintiffs’ Motion (Fed. R. Civ. P.

15 56(e)(1); Fed. R. Evid. 401, 402). Disputed that Defendants were

16 individually paid millions of dollars. From 2001-05, Dr. Mitchell was

17 paid $1,459,601.43 as an independent contractor to the CIA. From 2002- 18 05, Dr. Jessen was paid $1,204,550.42 as an independent contractor to the 19 CIA. Ladin Decl., Exh. XX at U.S. Bates 001906. 20

22 Plaintiffs’ Response: Response—No record dispute. Defendants were

23 paid, as Plaintiffs stated, nearly three million dollars before they began

24 profiting through Mitchell Jessen and Associates. This constitutes

25 “millions of dollars.” This fact is also relevant to the intent element of

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Plaintiffs’ claims and confirms Defendants’ intent to aid and abet the CIA 2 program. 3

5 130. Plaintiffs’ Fact: After the program was investigated by the Senate Select

6 Committee on Intelligence, the CIA agreed with the Committee’s conclusion

7 that the CIA “allowed a conflict of interest to exist wherein the contractors

8 who helped design and employ the enhanced interrogation techniques were 9 also involved in assessing the fitness of detainees to be subjected to such 10 techniques and the effectiveness of those same techniques.” Ladin Decl., 11 Exh. BBB, CIA Response at 10; Ladin Decl., Exh. B, Rodriguez Dep. 133:2– 12

13 20.

15 Defendants’ Response: Disputed. As discussed above, there was not one

16 overarching CIA interrogation program and Defendants were involved

17 only with the CIA’s HVD Program and not with interrogation of Plaintiffs 18 Salim and Ben Soud. See Defs.’ Resp. Pls.’ SOF ¶ 54. Additionally, the 19 CIA did not “agree” with the Committee’s conclusion. Rather the CIA 20 responded to the Committee’s conclusion by stating, that the Committee’s 21

22 Report “correctly points out that the propriety of the multiple roles

23 performed by contracted psychologists—particularly their involvement in

24 performing interrogations as well as assessing the detainees’ fitness and

25 the effectiveness of the very techniques they had devised—raised

26 concerns and prompted deliberation within CIA, but it fails to note that at

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 least some of these concerns were addressed” in early 2003. Ladin Decl., 2 Exh. BBB, CIA Response at 10. Further, objected to as irrelevant to the 3

4 resolution of the issues presented in Plaintiffs’ Motion (FED. R. CIV. P.

5 56(e)(1); FED. R. EVID. 401, 402).

7 Plaintiffs’ Response: Response—Speculation about multiple programs.

8 Response—No record dispute. The CIA’s statement speaks for itself and 9 is accurately quoted. In addition, this fact is relevant to Defendants’ intent 10 in promoting and advocating for the use of their methods on CIA 11 prisoners, which resulted in the expansion of those methods from use on 12

13 the CIA’s first prisoner, Abu Zubaydah, to Plaintiffs.

15 131. Plaintiffs’ Fact: Until the CIA program was shuttered and Defendants’

16 contract was terminated in 2009, Mitchell, Jessen, and Associates received

17 $81 million in taxpayer money. ECF No. 77 ¶ 68; Ladin Decl., Exh. BBB, 18 CIA Response at 11, 49. 19

20 Defendants’ Response: Defendants object to this “fact” as irrelevant to 21

22 the resolution of the issues presented in Plaintiffs’ Motion (FED. R. CIV.

23 P. 56(e)(1); FED. R. EVID. 401, 402) because MJA was not formed until

24 2005, after Plaintiffs were released from C. Defs.’ SOF ¶¶ 273, 277-78,

25 324. Disputed. As discussed above, there was not one overarching CIA

26 interrogation program and Defendants were involved only with the CIA’s

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 HVD Program and not with the interrogations of Plaintiffs Salim and Ben 2 Soud. See Defs.’ Resp. Pls.’ SOF ¶ 54. From 2005 through 2009, MJA 3

4 was paid approximately $72 million. Dr. Mitchell’s profit percentage

5 from MJA was in the “small single digits.” Defs.’ SOF ¶ 336-37.

7 Plaintiffs’ Response: Response—Speculation about multiple programs.

8 Response—No record dispute. Defendants themselves admitted that their 9 company was paid $81 million. Am. Answer, ECF No. 77 ¶ 68. The 10 document Defendants cite is earlier in time and apparently does not reflect 11 the amount Defendants’ company was paid before the contract ended. In 12

13 any event, whether Defendants’ company was paid $72 or $81 million,

14 the fact that it earned such a large amount is relevant to show both

15 Defendants’ central role in the CIA program as well as their intent and

16 motivation to promote, advance, and justify their methods and the

17 resulting CIA program. 18

21 DATED: June 26, 2017 By: s/ Dror Ladin Dror Ladin (admitted pro hac vice) 22 Steven M. Watt (admitted pro hac vice) 23 Hina Shamsi (admitted pro hac vice)

24 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 25 125 Broad Street, 18th Floor

26 New York, New York 10004

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 Lawrence S. Lustberg (admitted pro hac vice)

2 Kate E. Janukowicz (admitted pro hac vice) Daniel J. McGrady (admitted pro hac vice) 3 Avram D. Frey (admitted pro hac vice)

4 GIBBONS P.C. One Gateway Center 5 Newark, NJ 07102

6 Emily Chiang, WSBA No. 50517 7 AMERICAN CIVIL LIBERTIES UNION OF

8 WASHINGTON FOUNDATION 901 Fifth Avenue, Suite 630 9 Seattle, WA 98164

10 Paul Hoffman (admitted pro hac vice) 11 SCHONBRUN DESIMONE SEPLOW HARRIS

12 & HOFFMAN, LLP 723 Ocean Front Walk, Suite 100 13 Venice, CA 90291 14 Attorneys for Plaintiffs 15

Case 2:15-cv-00286-JLQ Document 204 Filed 06/26/17

1 CERTIFICATE OF SERVICE

2 I hereby certify that on the 26th day of June, 2017, I caused to be 3 electronically filed and served the foregoing with the Clerk of the Court using 4

5 the CM/ECF system, which will send notification of such filing to the

6 following: 7 Andrew I. Warden Brian S. Paszamant: 8 [email protected] [email protected] 9

10 Timothy Andrew Johnson Henry F. Schuelke, III: [email protected] [email protected] 11

12 Attorneys for the United States of Jeffrey N Rosenthal America [email protected] 13

14 James T. Smith: [email protected] 15

16 Christopher W. Tompkins: [email protected] 17

18 Attorneys for Defendants

22 s/ Dror Ladin Dror Ladin (admitted pro hac vice) 23 [email protected]