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Defendants' Motion to Compel Cia Depositions No. 16-Mc

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Defendants' Motion to Compel Cia Depositions No. 16-Mc Case 2:16-mc-00036-JLQ Document 64 Filed 02/14/17 1 Christopher W. Tompkins, WSBA #11686 2 [email protected] Betts Patterson & Mines, P.S. 3 One Convention Place, Suite 1400 4 701 Pike Street Seattle, Washington 98101-3927 5 6 James T. Smith (admitted pro hac vice) [email protected] 7 Brian S. Paszamant (admitted pro hac vice) 8 [email protected] Blank Rome LLP 9 One Logan Square, 130 N. 18th Street 10 Philadelphia, PA 19103 11 Attorneys for Petitioners Mitchell and Jessen 12 13 UNITED STATES DISTRICT COURT 14 FOR THE EASTERN DISTRICT OF WASHINGTON AT SPOKANE 15 JAMES ELMER MITCHELL and 16 NO. 16-MC-0036-JLQ JOHN “BRUCE” JESSEN, 17 Petitioners, DEFENDANTS’ MOTION TO 18 COMPEL CIA DEPOSITIONS vs. 19 UNITED STATES OF AMERICA, March 16, 2017 20 Oral Argument Requested Expedited Hearing Requested 21 Respondent. 22 Related Case: NO. CV-15-0286-JLQ 23 SULEIMAN ABDULLAH SALIM, et 24 al., Plaintiffs, 25 vs. 26 Betts Patterson DEFENDANTS’ MOTION TO Mines One Convention Place COMPEL CIA DEPOSITIONS - i - Suite 1400 NO. 16-MC-0036-JLQ 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 1116881.docx/021417 1247/8360-0001 Case 2:16-mc-00036-JLQ Document 64 Filed 02/14/17 1 2 JAMES E. MITCHELL and JOHN JESSEN, 3 Defendants. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Betts Patterson DEFENDANTS’ MOTION TO Mines One Convention Place COMPEL CIA DEPOSITIONS - ii - Suite 1400 NO. 16-MC-0036-JLQ 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 1116881.docx/021417 1247/8360-0001 Case 2:16-mc-00036-JLQ Document 64 Filed 02/14/17 1 I. INTRODUCTION 2 Petitioners James Elmer Mitchell and John “Bruce” Jessen (collectively, 3 “Defendants”) hereby move this Court to compel non-party the United States 4 (“Government”) to produce for deposition Ms. Gina Haspel and John/Jane “Doe.” 5 On December 1, 2016, Defendants served subpoenas via a Touhy request on 6 the Government, specifically upon the Central Intelligence Agency (“CIA”) 7 directed to: (1) CIA employee, Gina Haspel (who, at the time, was identified as 8 Gina “Doe” in recognition of her status as a covert CIA employee); and (2) 9 John/Jane “Doe” (who likewise was identified in this way in recognition of his 10 status as a covert CIA employee) in compliance with the parties’ and this Court’s 11 agreed-upon procedures. Since then, the Government has willfully delayed 12 responding to these subpoenas almost to the point of nullifying the request, with 13 the apparent hope that the discovery clock will simply run out before these noticed 14 depositions can occur. Indeed, Defendants reached out to the Government’s 15 designated discovery point-of-contact, Andrew Warden, multiple times since 16 serving the Touhy request. But only yesterday, February 13, 2017, did the 17 Government finally inform Defendants it will “not authorize” these depositions. 18 Nor did the Government ever object to the subpoenas prior to the date for 19 compliance—as it did with other CIA deponents—thereby resulting in a waiver 20 with respect to these. With the deadline for the close of discovery rapidly 21 approaching, Defendants seek to compel compliance with their Touhy request. 22 As shown, Ms. Haspel was centrally involved in the events alleged in 23 Plaintiffs Suleiman Abdulla Salim, Mohamed Ahmed Ben Soud, and Obaid Ullah, 24 on behalf of Gul Rahman’s (collectively, “Plaintiffs”) suit against Defendants for 25 actions they purportedly took while contractors for the CIA. In fact, recent articles 26 Betts Patterson DEFENDANTS’ MOTION TO Mines One Convention Place COMPEL CIA DEPOSITIONS - 1 - Suite 1400 NO. 16-MC-0036-JLQ 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 1116881.docx/021417 1247/8360-0001 Case 2:16-mc-00036-JLQ Document 64 Filed 02/14/17 1 identify Ms. Haspel as the person running the black site where Abu Zubaydah and 2 Abd al-Rahmin al-Nishiri—both of whom Defendants interrogated at the direction 3 and under the control of the CIA—were detained. It is similarly believed 4 John/Jane “Doe”—whose true identity remains concealed—was the former Chief 5 of Special Missions for the CIA’s Counterterrorism Center (CTC), and was also 6 the immediate successor to CIA employee Mr. Jim Cotsana. 7 Defendants do not seek to delay this case or pursue unnecessary motions. 8 But as this Court’s Order Re: Case Management Procedures provides, discovery 9 concerning Plaintiffs’ claims that Defendants designed, promoted, and 10 implemented the methods alleged in the Complaint shall focus in part on “whether 11 Defendants merely acted at the direction of the US, within the scope of their 12 authority, and that such authority was legally and validly conferred[.]” (ECF No. 13 51 at 3.) That information, unlike information upon which Plaintiffs rely, is not in 14 the public record and is vital to their defenses. Thus, Defendants request this Court 15 compel the Government’s compliance with their Touhy request. 16 II. RELEVANT FACTUAL BACKGROUND 17 Plaintiffs have sued Defendants for actions they purportedly took while 18 contractors for the CIA. Specifically, Plaintiffs allege Defendants designed, 19 implemented, and participated in the CIA’s former detention and interrogation 20 program. According to Plaintiffs, they were subjected to this program when they 21 were detained by the CIA in connection with the United States’ War on Terror in 22 the aftermath of the September 11th attacks. Plaintiffs claim Defendants’ actions 23 violated the law of nations, and thus, they can be held personally liable under the 24 Alien Tort Statute, 28 U.S.C. § 1350, for compensatory and punitive damages. 25 26 Betts Patterson DEFENDANTS’ MOTION TO Mines One Convention Place COMPEL CIA DEPOSITIONS - 2 - Suite 1400 NO. 16-MC-0036-JLQ 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 1116881.docx/021417 1247/8360-0001 Case 2:16-mc-00036-JLQ Document 64 Filed 02/14/17 1 To defend against these claims, on December 1, 2016, Defendants issued 2 subpoenas, via a Touhy request to the CIA (the “Touhy Request”), for testimony 3 from its employee, “Gina Doe, former Chief of Staff to Jose Rodriguez when he 4 served as the Chief of the CIA’s Clandestine Service and former Deputy to Jose 5 Rodriguez when he served as the Director of the CIA’s Counterterrorism Center.” 6 (Decl. of Brian S. Paszamant in Support of Motion to Compel [hereinafter 7 “Paszamant Decl.”] ¶ 3, Exhibit A at 44.) Defendants simultaneously sought 8 testimony from CIA employee, “John/Jane Doe, former Chief of Special Missions 9 for the CIA’s CTC and immediate successor to Jim Cotsana in that position and 10 who also served as the Chief of the CIA’s CTC Renditions Group.” (Id. at 47.) 11 Per the accompanying Affidavit of Brian S. Paszamant In Connection With 12 Subpoenas For Depositions Of Gina Doe and John/Jane Doe, Defendants further 13 explained that “[t]he depositions that are requested pursuant to the enclosed 14 subpoenas are critical to the defense of Plaintiffs’ allegations because, among other 15 things, it will enable Defendants to demonstrate the following”: 16 a. Defendants’ role in the CIA’s detention and interrogation program, 17 framework and implementation. 18 b. That Defendants’ actions/inactions were within the scope of legally 19 and validly conferred authority. 20 c. That even assuming, arguendo, that Defendants’ actions/inactions 21 somehow fell outside the scope of legally and validly conferred authority, their actions/inactions were nevertheless known to and 22 approved by individuals possessing higher authority. 23 d. That whatever improper actions/inactions, if any, were taken (or not 24 taken) vis-à-vis one or more Plaintiffs is not capable of being attributable to Defendants’ direct involvement. 25 26 Betts Patterson DEFENDANTS’ MOTION TO Mines One Convention Place COMPEL CIA DEPOSITIONS - 3 - Suite 1400 NO. 16-MC-0036-JLQ 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 1116881.docx/021417 1247/8360-0001 Case 2:16-mc-00036-JLQ Document 64 Filed 02/14/17 1 e. That Defendants were not present for any interrogation of two of the three Plaintiffs and had only minor involvement with regard to Gul 2 Rahman, whose executor is the third Plaintiff. 3 f. That Defendants’ actions/inactions did not cause, directly or 4 indirectly, Plaintiffs’ alleged injuries. 5 (Ex. A at 4-5.) The Touhy Request set January 4 as the proposed deposition date 6 for Gina “Doe,” and January 5 for John/Jane “Doe”; it also identified counsel’s 7 Washington, D.C. office as the proposed deposition location. (Id. at 44, 47.) 8 The Touhy Request was served on the Government, specifically the CIA, via 9 email on December 1, 2016, and by regular mail. (Exhibit B.) Two weeks later, 10 on December 14, Mr. Warden responded to the email as follows: 11 I am in receipt of your Touhy request and attendant subpoenas for 12 depositions of Gina Doe and John/Jane Doe. In accordance with 13 paragraph 6 of the discovery stipulation, I accept service of the Touhy request on behalf of the CIA and I have passed the request 14 on to the appropriate officials at CIA for a decision.1 I am not 15 authorized to accept service of the subpoena on behalf of the two Doe witnesses at this time and will not be authorized to do so, at a 16 minimum, while the Touhy request remains under consideration with 17 the CIA.
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