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Complaint Filed by Former APA Employees and Retired Military COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CA No. Stephen Behnke; L. Morgan ~anks, III; ) Debra L. Dunivin; Larry C. James; and ) Russell Newman; ) ) Plaintiffs, ) v. ) ) Stephen Soldz; David H. Hoffman; ) Sidley Austin LLP; Sidley Austin (NY) LLP; ) American Psychological Assodation; and ) JOHN AND/OR JANE DOES 1-50 ) ) Defendants. ) COMPLAINT AND JURY DEMAND TABLE OF CONTENTS I. NATURE OF THE ACTION ........................................................................................ 1 Unprivileged, False, and Defamatory Statements in the Report Made with Actual Malice ......... ....................................................................................................... 10 Evidence of Actual Malice from the Conduct of the Investigation ................................. 12 Evidence of Actual Malice from the Institutional Defendants' Conduct After the Report's Completion .......................................................... ........................................... 14 Evidence of Actual Malice in Soldz' s Statements .......................................................... 16 Damages to Plaintiffs .................................................................................................... 18 II. THE PARTIES AND RELEVANT TIDRD PARTIES ............................................. 19 Ill. JURISDICTION .......................................................................................................... 27 IV. FACTUAL BACKGROUND ...................................................................................... 35 A. Psychologists' Participation in National Security Interrogations .... .......................... 35 B. The PENS Task Force..................... ......................................................................... 36 C. The Critics on Whom Hoffman Relied ..................................................................... 39 V. HOFFMAN AND SIDLEY'S THREE PRIMARY CONCLUSIONS ARE FALSE AND DEF AMATORY PER SE ..................................................................... 40 A. Material in Hoffman and Sidley's Possession Demonstrates They Knew His First Conclusion Was False or Acted in Reckless Disregard oflts Truth ......... .41 1. U.S. Policy Governing National Security Interrogations 2003-2005: Department of Justice and DoD Policies Became Increasingly Restrictive ........ .43 2. The Regional Military Policies Were Even More Specific and Restrictive ........ .49 3. The PENS Guidelines Incorporated the Updated and Restrictive PoHcies .......... 51 4. The Military Plaintiffs Took a Leading Role in Creating Policies and Procedures to Prevent Abusive Interrogations ........................................... ........ 54 B. Material in Hoffman and Sidley's Possession Demonstrates They Knew His Second Conclusion Was False or Acted in Reckless Disregard oflts Truth ....... 56 C. Material in Hoffman and Sidley's Possy~sion Demonstrates They Knew His Third Conclusion Was False or Acted in Reckless Disregard oflts Truth .......... 57 VI. THE INSTITUTIONAL DEFENDANTS' CONDUCT OF THE INVESTIGATION DEMONSTRATES ACTUAL MALICE .................................................................... 63 A. The Appointment of the Special Committee: The Roles of Drs. Kaslow and McDaniel. .................... ...... ......................................................... 63 B. Obscuring the Investigation's Expanded Scope and Direction .................................. 65 C. Lack of Independence: Hoffman and Sidley's Over-Reliance on the Accusers and Alignment with Their Goals ................................................................... 67 D. Lack oflndependence: Hoffman and Sidley's Alignment with the Interests of . Drs. Kaslow and McDaniel, tlie Non-Recused Members of the Special Committee .. 70 E. Failure to Follow All the Evidence: Exculpatory Leads ..... ....................................... 72 F. Failure to Provide Standard Upjohn-Type Warnings or to Warn Plaintiffs When the Investigation Had Become Adverse to Their Interests ........................ ...... 7 5 VII. HOFFMAN AND SIDLEY WROTE THE REPORT IN A MANNER THAT FURTHER DEMONSTRATES ACTUAL MALICE ................................................ 77 A. The Report Conflates DoD and CIA Policies ................................................ 77 B. The Report Relies Repeatedly on Over-Statements, Misstatements, and Unsupported Inferences .............................................................. ............................. 78 VIII. THE INSTITUTIONAL DEFENDANTS' AND SOLDZ'S ACTIONS SURROUNDING AND AFTER THE REPORT'S PUBLICATION PROVIDE FURTHER EVIDENCE OF ACTUAL MALICE ................................................... 84 A. On Information and Belief, Hoffman and Soldz Leaked the Report to The New York Times Before the AP A Board Authorized Its Publication and Before Plaintiffs Had Reviewed It .............. .................................. ........................... 84 B. Drs. Kaslow and McDaniel Knew that Two of the Report's Primary Conclusions Were False or Acted with Reckless Disregard of Whether They Were False ............ 86 C. The APA Board Republished the Report Hastily and Without Adequate Review ...... 89 D. The Institutional Defendants Failed to Give Plaintiffs an Opportunity to Respond to Allegations ............. ............................................................................. 91 E. Dr. Kaslow's Statements During and After the Investigation Bolstered the Report's False Conclusions ............................................ ·.·......................................... 92 F. The Institutional Defendants Made False Claims of Privilege and Work Product.. ... 95 G. The Institutional Defendants Failed to Respond to Evidence of the Report's Falsity .................. ................................................................................................... 97 H. The APA Rehired Hoffman Despite Conflicts ...................... .................................. 100 IX. ONGOING DAMAGES TO PLAINTIFFS .............................................................. 101 ii X. COUNTS 1-19 ............................................................................................................ 103 COUNT 1: All Plaintiffs against Hoffman and Sidley for the June 27, 2015, Publication of the Draft Report to APA Special Committee and Board .... 103 COUNT 2: All Plaintiffs against Hoffman, Sidley, and APA for the June 28, 2015, Publication of the Draft Report to Soldz and Reisner ........................... ..... 105 COUNT 3: All Plaintiffs against Soldz for his July 2, 2015, Publication of Statements to AP A Board and Public Websites ................................... ...... 107 COUNT 4: All Plaintiffs against Hoffman, Sidley, APA , and Soldz for the July 2, 2015, Publication of the Draft Report to Risen and The New York Times ... 109 COUNT 5: All Plaintiffs against Hoffman and Sidley for the July 2, 2015, Publication of the Final Report to APA Special Committee and Board... .. 112 COUNT 6: All Plaintiffs against Hoffman and Sidley for the July 2 - July 7, 2015, Publication (leak by Hoffman, on information and belief) of the Final Report to Risen and The New York Times ......................................... 114 COUNT 7: All Plaintiffs against Hoffman, Sidley, and APA for the July 8, 201 5, Publication of the Final Report to APA Council.. ...................................... 117 COUNT 8: All Plaintiffs against Hoffman, Sidley, AP A, and Soldz for the July 10, 2015, Publication of the Report by Risen and The New York Times ........... 119 COUNT 9: All Plaintiffs against Hoffman and Sidley for the July 11, 201 5, Publication of the Report by The Guardian ................... ....... ........ .. ........... 121 COUNT 10: All Plaintiffs against Hoffman, Sidley, and APA for the July 10, 2015, Publication of the Final Report on the APA Website ...... .. ...................... 124 COUNT 11: All Plaintiffs against Hoffman, Sidley, and APA for the July 11 , 2015, Publication of the Final Report to APA Members by E-mail Link .......... 126 COUNT 12 All Plaintiffs against Hoffman, Sidley, and APA for the July 11 and 20, 2015, Publication of Articles and the Final Report by The Boston Globe ............................. .. .................................................. 129 COUNT 13: All Plaintiffs agcj,illfi~ AP A for Statetilents to the Press Concerning the Report by Kasl6w on Behalf of AP A, Including on WBUR Radio Bbston ................................................................ ............. 133 COUNT 14: All Plaintiffs against Hoffman and Sidley for the September 4, 2015, Publication of the Revised Report to APA Special Committee and Board ................... .... ............ , .................. ............................................... 135 iii \ COUNT 15: All Plaintiffs against Hoffman, Sidley, and APA for the September 4, 2015, Publication of the Revised Report on the APA Website ............... 138 COUNT 16: All Plaintiffs against Hoffman, Sidley, and APA for the September 11, 2015, Publication of the Revised Report to APA Governance Members by E-mail .. ............................................................................. 141 COUNT 17: All Plainii'ffs against Soldz for his November 2017 Remarks to The North Carolina Commission oflnquiry on Torture and Subsequent Republication on Its Website ................. ............................................... 143 COUNT 18: All Plaintiffs agains{Hoffman and ·sidley for the July 2 and :sJj{iember 4,
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