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Salim v. Mitchell

United States District Court, E.D. Washington

August 7, 2017

SULEIMAN ABDULLAH SALIM, et al., Plaintiffs,
v.
JAMES E. MITCHELL and JOHN JESSEN, Defendants.

          MEMORANDUM OPINION RE: MOTIONS FOR SUMMARY JUDGMENT

          JUSTIN L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are Defendants' Motion for Summary Judgment (ECF No. 169), Plaintiffs' Motion for Partial Summary Judgment (ECF No. 178), and Defendants' Motion to Exclude (ECF No. 198). Response and Reply briefs have been filed and considered. The parties have submitted a voluminous record of over 4, 000 pages of evidentiary exhibits. The court heard oral argument on the Motions on July 28, 2017. James Smith, Henry Schuelke, III, Brian Paszamant, and Christopher Tompkins appeared for Defendants James Mitchell and John Jessen. Hina Shamsi, Steven Watt, Dror Ladin, Lawrence Lustberg, and Jeffry Finer appeared for Plaintiffs Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Obaid Ullah. The court issued its preliminary oral ruling. This Opinion memorializes and supplements the court's oral ruling.

         I. Introduction and Factual Allegations from Complaint

         The Complaint in this matter alleges Plaintiffs Suleiman Abdullah Salim (“Salim”), Mohamed Ahmed Ben Soud (“Soud”), and Gul Rahman (“Rahman”)[1](collectively herein Plaintiffs) were the victims of psychological and physical torture. Plaintiffs are all foreign citizens and bring these claims pursuant to the Alien Tort Statute, 28 U.S.C. § 1350 (hereafter “ATS”). Plaintiffs allege the Defendants, James Mitchell and John Jessen, “are psychologists who designed, implemented, and personally administered an experimental torture program for the U.S. Central Intelligence Agency.” (Complaint, ¶ 1).

         A. Allegations of Mr. Salim

         Plaintiff Salim is a Tanzanian citizen who was captured by the CIA and Kenyan Security Forces in Somalia in March, 2003, where he was working as a trader and fisherman. He was transferred to official U.S. Government sites in Afghanistan and held there for a total of sixteen months. In July 2004, he was transferred to Bagram Air Force Base in Afghanistan and held in custody there for an additional four years, until being released in August 2008. (Complaint ¶ 9). Mr. Salim alleges he was subjected to numerous coercive methods, including: prolonged sleep deprivation, walling, stress positions, facial slaps, abdominal slaps, dietary manipulation, facial holds, and cramped confinement. (Id. at ¶ 74). He also claims he was subjected to prolonged nudity and “water dousing that approximated water boarding.” (Id.). The conditions of his confinement are pled with great specificity, including that he was kept in a dark, frigid cell, “continually chained to the wall” in a stress position in which the “only position he could adopt was a squatting position that very quickly became uncomfortable and extremely painful” and was fed a meager meal of “a small chunk of bread in a watery broth-only once every other day.” (Id. at ¶ 79-82).

         The allegations of interrogation methods are pled with great detail. (Complaint ¶¶ 71-116). By way of brief example, the following: Mr. Salim alleges being stripped naked and then placed, cuffed and shackled on the center of a large plastic sheet where, he alleges, he was repeatedly doused with ice-cold water and kicked and slapped in the stomach and face. After 20 to 30 minutes of dousing, he was then rolled up in the plastic sheet and “left to shiver violently in the cold for some 10 or 15 minutes.” (Id. at ¶ 88). He claims he was forced naked into “a small wooden box, measuring about three square feet”, which was locked with a padlock. Inside, the box smelled “rancid” and he “vomited in pain and fear” while locked inside the box. (Id. at ¶ 91-92).

         Mr. Salim claims after two or three weeks of these “aggressive” methods he was assessed by his interrogators to be “broken” and “cooperative.” (Id. at ¶ 104). Mr. Salim occasionally met with people he believed to be health care providers and received treatment. He was given a polygraph test. (Id. at ¶ 105). He claims shortly thereafter he was given “three very painful injections in his arm”, against his will. He states he does not know what happened after his face went numb and he fell asleep/lost consciousness. (Id. at ¶ 106). After some four or five weeks in custody, he alleges he attempted to kill himself by taking pain pills. (Id. at ¶ 107).

         Shortly after the suicide attempt, Mr. Salim was transferred by CIA personnel to another site in Afghanistan he states was known as the “Salt Pit” and remained there for 14 months, often in solitary confinement. (Id. at ¶ 109). Thereafter he was transferred to Bagram Air Force Base, where he was detained for four years, in a small cage in a “hangar-type building” with constant illumination. He was never allowed outside. (Id. at ¶ 111). After being released Mr. Salim contends he continues to suffer repercussions from the torture: debilitating pain in his jaw and teeth; pain in his back, shoulders, and legs; frequent nightmares/flashbacks; and other symptoms of post-traumatic stress disorder (PTSD). (Id. at ¶ 115-116).

         B. Allegations of Mr. Soud

         Mr. Soud is a Libyan citizen, who allegedly fled Libya fearing prosecution from the Gadaffi regime and went to Pakistan, where in 2003 his home was raided by U.S. and Pakistani forces. (Complaint at ¶ 117-18). He states during the raid he was shot which shattered a bone in his left leg. He claims he was detained, interrogated, and abused for two weeks after the raid by Pakistani and U.S. officials. (Id. at ¶ 119). He denied any knowledge of terrorism plans against the U.S. or any connection to al-Qa'ida. He alleges he was then told he was not being cooperative and transported to COBALT[2]. He alleges he was subjected to several of the same interrogation procedures as Mr. Salim, including: prolonged sleep deprivation, stress positions, walling, being slapped, dietary manipulation, facial holds, cramped confinement, and a form of water boarding. (Id. at ¶ 121). Mr. Soud claims that after he arrived at COBALT he was told “he was a prisoner of the CIA, that human rights ended on September 11, and that no laws applied in prison.” (Id. at ¶ 124).

         At COBALT, Mr. Soud was “kept naked for more than a month” and he was not allowed to wash for five months. (Id. at ¶ 127-28). Mr. Soud alleges he was given meager meals of poor nutritional quality and during his year-long detention at COBALT his weight fell from 187 to 139 pounds. (Id. at ¶ 129). He additionally claims to have been subjected to prolonged sleep deprivation which “drove him close to madness”. (Id. at ¶ 131). He alleges about two weeks after he arrived at COBALT the “torture increased in severity” and moved into an “aggressive phase” that lasted four to five weeks. (Id. at ¶ 133-34). He alleges he was subjected to “walling” where a foam collar was placed around his neck, and he was then thrown into a wooden wall, while also being slapped in the face and stomach. (Id. at ¶ 137-38). Similar to Mr. Salim, he describes being doused in ice water while on a plastic sheet. These methods of interrogation allegedly lasted for approximately two weeks, until another interrogation team took over.

         Mr. Soud alleges the new interrogation team increased the severity of the physical beatings. (Id. at ¶ 142). He states he was also subjected to two different confinement boxes. After two to three weeks, the second interrogation team found Mr. Soud to be “broken” and “cooperative” and stopped the aggressive interrogation tactics. Mr. Soud was held by the U.S. Government, often in solitary confinement, until August 22, 2004 when he was turned over to the Libyan Government. In Libya, Mr. Soud was sentenced to life imprisonment, but was released in 2011 after the overthrow of the Gaddafi regime. (Id. at ¶ 153). Mr. Soud alleges he “continues to suffer both physically and psychologically from the tortures he endured” while in the custody of the U.S. Government. (Id. at ¶ 154).

         C. Allegations Concerning Gul Rahman

         Gul Rahman was born in Afghanistan. In October 2002, Mr. Rahman was living in Pakistan where we was detained by a joint U.S./Pakistani operation. Plaintiff alleges that in November 2002, “Defendant Jessen conducted a psychological evaluation of Mr. Rahman at COBALT.” (Complaint at ¶ 160). Defendant Jessen allegedly concluded Mr. Rahman was resistant and further torture would be required to break his will. It is alleged Defendant Jessen “directly participated in the more aggressive phase” of Mr. Rahman's interrogation and “tortured” him. (Id.)

         After Mr. Jessen left COBALT, the interrogation of Mr. Rahman allegedly continued, using techniques such as: slaps, stress positions, dietary manipulation, sleep deprivation, prolonged nudity, and water dousing. On November 19, 2002, Mr. Rahman was chained, partially nude, in a stress position, with temperatures in the 30s. The next morning he was found dead. The autopsy report listed the likely cause of death as hypothermia, with contributing factors of dehydration, lack of food, and “immobility due to short chaining.” (Id. at ¶ 164). Plaintiffs allege Mr. Rahman's death was investigated by the CIA and included in a CIA Inspector General Report in 2004, but no one was held accountable. Plaintiffs allege Mr. Rahman's death was concealed from the public until 2010. (Id. at 165-167).

         D. Alleged Conduct and Involvement of Defendants

         Defendant James Mitchell is a U.S. citizen and a psychologist. He was the chief psychologist at the Survival, Evasion, Resistance, and Escape (“SERE”) training program at Fairchild Air Force Base near Spokane, Washington. From 2001 to 2005 he “worked as an independent contractor for the CIA”, and from 2005 to 2009 worked at Mitchell, Jessen & Associates in Spokane, Washington, and continued to work under contract with the CIA. (Complaint at ¶ 12). Defendant John “Bruce” Jessen is also a psychologist, U.S. citizen, and worked under contract with the CIA and at Mitchell, Jessen & Associates in Spokane, Washington. (Id. at ¶ 13).

         Defendants allegedly produced a “white paper” for the CIA entitled: “Recognizing and Developing Countermeasures to Al-Qa'ida Resistance to Interrogation Techniques: A Resistance Training Perspective.” (Id. at ¶ 24). The paper proposed countermeasures that could be employed to defeat resistance to interrogations, and according to Plaintiffs “justified the use of torture and other forms of cruel, inhuman, and degrading treatment.” (Id. at ¶ 25). The paper allegedly described a theory of “learned helplessness.”

         In March 2002, U.S. authorities captured Abu Zubaydah and Defendant Mitchell was contacted to provide “real-time recommendations to overcome Zubaydah's resistance to interrogation.” (Id. at ¶ 32). Mitchell allegedly encouraged the CIA to develop the learned helplessness techniques. (Id.) In April 2002, “CIA Headquarters sent Mitchell to GREEN [a CIA black-site prison] to consult on the psychological aspects of Abu Zubaydah's interrogation.” (Id. at ¶ 34). In July 2002, the CIA and Mitchell believed Zubaydah was being “uncooperative” and decided to pursue a more “aggressive” phase of interrogation, and contracted with Defendant Jessen to assist Mitchell. (Id. at ¶ 41-42). The Complaint alleges Jessen and Mitchell proposed 12 coercive methods, and the CIA agreed to propose 11 of them to the Attorney General. On July 24, 2002, the Attorney General allegedly verbally approved all of the proposed methods except water boarding. (Id. at ¶ 43-44). Defendants argued water boarding was a convincing technique and necessary, and the Attorney General approved it on July 26, 2002. Plaintiffs allege Defendants “personally conducted or oversaw” aspects of Zubaydah's interrogation, including physically assaulting him, forcing him into confinement boxes, and water boarding. (Id. at ¶ 46-48).

         Plaintiffs claim Defendants pronounced the interrogation of Zubaydah a “success” and recommended the CIA use the aggressive coercion methods for future high value captives. (Id. at ¶ 55-56). Defendants then allegedly devised the program of CIA “enhanced interrogation techniques” including “designing instruments of torture such as confinement boxes”. (Id. at ¶ 57). Defendants “trained and supervised CIA personnel in applying their phased torture program”. (Id. at ¶ 62). Plaintiffs allege that “together with the CIA, Defendants supervised and oversaw” the program including assessing: 1) whether prisoners had been tortured long enough to induce “learned helplessness”; 2) what combinations and sequences of torture were most effective; and 3) had the prisoners become fully compliant. (Id. at ¶ 63). Plaintiffs contend that between 2001 and 2010, Defendants, and the company they formed, Mitchell, Jessen, & Associates, were paid over $80 million to provide “security teams for renditions, interrogators, facilities, training, operational psychologists, de-briefers, and security personnel at all CIA detention sites.” (Id. at ¶ 65-68).

         II. Summary Judgment Factual Record

         In summary judgment proceedings, the facts are viewed in a light most favorable to the non-movant. However, in this instance the parties have filed cross-motions for summary judgment. The following recitation attempts to set forth the undisputed background facts. Significant disputes of fact are noted. Citation is frequently made to ECF No. 201 because it is an over 200-page document which consolidates Defendants' affirmative statement, Plaintiffs' response, and Defendants' reply. Additional facts are discussed as pertinent to specific legal issues in “IV. Discussion” infra.

         Defendants James Mitchell and John Jessen are psychologists. (D's St. Of Facts, ECF No. 201, ¶ 1). Defendant Mitchell began work with the Central Intelligence Agency in August 2001, shortly before the terrorist attacks of September 11, 2001. (Id. at ¶ 2 & 4). On September 17, 2001, President Bush signed a Memorandum of Notification authorizing the CIA “to capture and detain individuals who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities.” (Id. at ¶ 6). The Director of the CIA then directed the CIA's Counter terrorism Center (“CTC”) to establish a program to capture, detain, and interrogate al-Qa'ida operatives to obtain critical threat and actionable intelligence. (Id. at ¶ 7). The CIA began building secret detention facilities referred to as ‘black sites'. (Id. at ¶ 10).

         On December 21, 2001, Mitchell entered into another contract with the CIA, this time for “consultation and research on counter terrorism and special ops.” (ECF No. 201 at ¶ 11). On June 13, 2002, Mitchell's contract with CIA was expanded for him to serve as “consultant to CTC special programs.” (Id. at ¶ 14). Mitchell's contract called for a consultation fee of $1, 000 to $1, 800/day. At that time, Mitchell had thirteen years experience with the U.S. Air Force's Survival Evasion Resistance and Escape program (“SERE”). (Id. at ¶ 16). Mitchell had previously collaborated with Jessen, who in 2002, was employed by the Department of Defense. (Id. at ¶ 18). Jessen had also been part of the SERE program and had “helped design an advanced course that specifically prepared trainees for capture by terrorist groups.” (Id. at ¶ 20). The CIA asked Mitchell to review the Manchester Manual, which contained instructions for resistance to interrogation, and Mitchell requested that Jessen take part in the project. (ECF No. 201 at ¶ 21-22). Jessen then contracted with the CIA on July 22, 2002. (Id. at ¶ 120). Defendants Mitchell and Jessen drafted a paper on Al-Qa'ida's resistance to interrogation techniques entitled, “Recognizing and Developing Countermeasures to Al-Qa'ida Resistance to Interrogation Techniques: A Resistance Training Perspective” (the “Resistance Paper”). (Id. at ¶ 23).

         Abu Zubaydah (“AZ”) was captured by the United States on March 27, 2002. (ECF No. 201, ¶ 25). Mitchell was part of the team to interrogate AZ. On April 1, 2002, a cable was sent from CIA Headquarters to black site GREEN transmitting Defendants' Resistance Paper. (Id. at ¶ 34). At GREEN, the Chief of Base (“COB”) reported to the Station Representative who reported to Chief of Station who reported to CIA Headquarters (hereafter ‘HQS'). (Id. at ¶ 41). In April 2002, Mitchell became part of a team monitoring AZ's interrogation that was led by a full-time CIA officer, who was also a psychologist. (Id. at ¶ 42). Mitchell's role was to observe the interrogation and make recommendations for overcoming AZ's resistance to interrogation. (Id. at ¶ 43). Mitchell reported directly to HQS and Jose Rodriguez, Chief Operation Officer, Counter terrorism. (Id. at ¶ 44-45).

         Mitchell made recommendations for environmental modifications to the holding compound and interrogation room for AZ. (Id. at ¶ 46). The physical environment was designed to “further disorient” AZ through the use of bright light, white noise, no natural light, and sleep deprivation. (Id. at ¶ 51). One of the goals of this stage of the interrogation was to induce a psychological state of “helplessness”. (Id. at ¶ 52). The parties dispute whether the interrogation methods were designed to induce a state of “learned helplessness.” The parties agree “learned helplessness” is a profound level of helplessness that leads to feelings of depression, passivity, and withdrawal. (Id. at ¶ 54). Defendants contend they did not advocate for “learned helplessness, ” which is a disputed fact. (ECF No. 201 at ¶ 56).

         The interrogation team for AZ was specifically told that they were not limited to traditional law enforcement methods because AZ was “not entitled to the legal protections of the Geneva Conventions.” (Id. at ¶ 73). The interrogation of AZ began on or about April 17, 2002. (Id. at ¶ 74). Mitchell assisted in identifying AZ's resistance methods and designing effective countermeasures. (Id. at ¶ 76). After each interrogation, the interrogator prepared a formal report to HQS that set forth intelligence and the interrogation team produced twice-daily situation reports. (Id. at ¶ 79).

         On or about May 8, 2002, the interrogation team met to review strategy for further interrogation. The team decided to interfere with AZ's sleep “to degrade his ability to maintain his full mental capacities.” (ECF No. 201 at 82). HQS ordered the AZ interrogation team to press for threat-related information and increase the pressure, including use of a confinement box. (Id. at 84 & 85). In June 2002 HQS held a meeting, which Mitchell attended, to discuss the next phase of AZ interrogation. (Id. at ¶ 89). The individuals present at the meeting believed AZ was withholding critical information and they needed to take a harder line. (Id. at ¶ 90-91).

         The interrogation team tried an isolation phase with AZ which began on June 18, 2002. (Id. at ¶ 96). In late-June 2002, Rodriguez asked Mitchell to identify other potential interrogation techniques that could be used on AZ to overcome his perceived resistance and obtain more information. (Id. at ¶ 97). In July 2002, Mitchell attended a meeting at HQS to discuss further refining tactics. (Id. at ¶ 98). The major focus of the meeting was to consider the next phase of interrogations, a “last hard push” to concentrate on “pending terrorist attacks”. (Id. at ¶ 101). Mitchell suggested the use of various techniques that had been used on SERE trainees, which included walling, cramped confinement, stress positions, sleep deprivation, water boarding, and mock burial. (Id. at ¶ 104). At the time he made the suggestion, Mitchell did not know he would become an interrogator. (Id. at ¶ 107). Mitchell explained the goal of these techniques would be to “dislocate” AZ's expectations and the interrogation could produce “fear, helplessness, compliancy, or false hope.” (Id. at ¶ 108).

         At the conclusion of the July 2002 meeting at HQS, Rodriguez asked Mitchell to consider working with the CIA to use some or all of the techniques he had suggested. (Id. at ¶ 114). Mitchell requested the CIA also hire Jessen to assist him with the interrogation of AZ, and Rodriguez approved the request. (Id. at ¶ 115 & 116). Jessen agreed to assist and became an independent contractor with the CIA on July 22, 2002. (Id. at ¶ 120). Mitchell and Rodriguez had several meeting at HQS. On July 8, 2002, another meeting was held at HQS, which was attended by several people including Mitchell, Jessen, Rodriguez, and Rizzo. (Id. at ¶ 123). An “increased pressure phase” was discussed, as well as Mitchell's suggested interrogation techniques. (Id. at ¶ 124). After the meeting, Rodriguez requested Defendants provide him with a written list identifying potential interrogation techniques, describing how they could be implemented, and their intended effect on AZ. (Id. at ¶ 125). Defendants drafted a memo (hereafter ‘July 2002 Memo') for Rodriguez based on their knowledge of interrogation techniques used at SERE. (Id. at ¶ 127). The techniques listed in the July 2002 Memo came to be known as Enhanced Interrogation Techniques (“EITs”). (ECF No. 201 at ¶ 131).

         The CIA thereafter sent a cable discussing the “next phase” of the AZ interrogation which contained descriptions of the EITs consistent with the July 2002 Memo. (Id. at ¶ 132-34). The cable stated water boarding and mock burial would require Attorney General approval and the others “can be approved by the CIA's legal staff.” (Id. at ¶ 135). The CIA, not Defendants, determined what approvals from the U.S. Government were required for the EITs. (Id. at ¶ 139). On July 13, 2002, Rizzo met with John Yoo, Deputy Assistant Attorney General, and others from Department of Justice and Office of Legal Counsel (“OLC”) and the various EITs were discussed, with an emphasis on water board and mock burial. (Id. at ¶ 141). At this meeting, Rizzo reported the interrogation team had concluded more aggressive methods were required for the AZ interrogation. (Id.). Rizzo further informed it was not their intent to permit AZ to die and appropriately trained medical personnel would be on site, but there was always a risk of heart attack, stroke, or other adverse event. (Id.).

         Thereafter, Rizzo requested Defendants comment on the short and long term psychological effects of water boarding and mock burial. (ECF No. 201, at 145). While assessing the EITs the CIA prepared a memo acknowledging the effects of the EITs may be different than in the SERE school setting. The memo stated techniques “are administered to student volunteers in the U.S. in a harmless way, with no measurable impact on the psyche of the volunteer, we do not believe we can assure th e s ame here for a man forced through these processes and who will be made to believe this is the future course of the remainder of his life. While the CIA will make every effort possible to ensure that the subject is not permanently physically or mentally harmed, some level of risk still exists.” (Id. at ¶ 150).

         On July 17, 2002, Rodriguez and Rizzo were informed National Security Adviser Condoleeza Rice had approved the use of EITs on AZ. (Id. at ¶ 152). On July 23, 2002, a cable was sent to HQS, stating in part that IC (independent contractor) SERE psychologists[3] “recommend using an escalating interrogation strategy” and “the escalation must culminate with pressure which is absolutely convincing.” (Id. at ¶ 154). The cable further stated: “The plan hinges on the use of an absolutely convincing technique. The water board meets this need.” (Id.).

         On August 1, 2002, Rizzo received a confidential memo from OLC Assistant Attorney General Bybee (the “Bybee Memo”) which concluded that 10 of the proposed EITs, including waterboarding, did not violate the prohibition against torture established by 18 U.S.C. § 2340A. (ECF No. 201 at 165). This legal conclusion was communicated to black-site GREEN, where AZ was being detained. The “aggressive phase” of the interrogation of AZ then commenced on August 4, 2002. (Id. at ¶ 187). Defendants applied EITs to AZ. (Id. at ¶ 188). After six days, on August 11, 2002, the interrogation team sent a cable to HQS stating “it was highly unlikely Zubaydah had actionable new information about current threats to the United States, ” but he may be withholding information on other issues. (Id. at ¶ 190). A few days later, Defendants recommended that EITs not be used on AZ any longer. (Id. at ¶ 191). HQS instructed Defendants to continue with use of the water board. (Id. at ¶ 194).

         A video conference was scheduled with HQS for August 13, 2002 to view the application of the EITs to AZ. (Id. at ¶ 196). After the video conference, HQS directed the EITs continue for the next two-to-three weeks. (Id. at ¶ 199). Plaintiffs contend Mitchell bears some blame for the continued interrogation of AZ because he had originally recommended a 30-day period for EITs. (Id. at ¶ 200). On August 16, 2002, a team from HQS arrived at GREEN to discuss the general strategy for AZ's interrogation. On August 19, 2002, Defendants used the water board on AZ while individuals from CIA and GREEN's Chief of Base observed. (ECF No. 201, at ¶ 206). The aggressive phase of interrogation ended on August 23, 2002, because AZ was judged to be “in a state of complete subjugation and total compliance.” (Id. at ¶ 207). Thereafter a cable was transmitted between GREEN and HQS which recommended the aggressive phase at GREEN “should be used as a template” for future interrogation of high value captives. (Id. at ¶ 208). The parties dispute who wrote the cable, with Plaintiffs contending it was authored by Defendants.

         Thereafter the Office of Legal Counsel confirmed EITs could be used on other detainees. (Id. at ¶ 209). Mitchell and Jessen understood that they were the only individuals authorized to administer EITs until around November/December of 2002. (ECF No. 201, at ¶ 225). On January 31, 2003, the CIA Director sent formalized guidelines for detainee interrogations to all CIA black-sites, including COBALT. (Id. at 227 & 229). COBALT was not in the United States. (Id. at 254). A CIA Staff Officer was Chief of Base (“COB”) at COBALT and arrived in August 2002, about a month before the site became operational. (Id. at ¶ 255). When detainees arrived at COBALT, it was the COB's responsibility to interrogate them. (Id. at ¶ 258). The COB had no formal training in interrogations until April 2003. (Id. at ¶ 260).

         Plaintiff Salim was arrested in 2003[4] in Somalia and taken to COBALT where he was detained for approximately 2 months. (Id. at 268). Salim was interrogated by CIA agents and testified they put a cloth around his neck and were punching him against the wall and putting him down and kicking him. (Id. at ¶ 269). Plaintiffs contend this was Defendants' EIT of “walling”, which Defendants dispute. Salim testified that while at COBALT he was subjected to sleep deprivation, water dousing, cramped confinement, slaps, grasps, and walling. (Id. at ¶ 270). Neither Mitchell or Jessen conducted Salim's interrogation, and Salim is not aware that he ever met Mitchell or Jessen. (Id. at ¶ 272). Salim was transferred from CIA custody to Bagram Air Force Base in March 2004, and was ultimately released by U.S. Government in 2008.

         Plaintiff Soud was captured in Pakistan on April 3, 2003. (ECF No. 201 at ¶ 277). Soud was transferred to COBALT later that month and held there for over a year. (Id. at ¶ 278). He was subjected to sleep deprivation, nudity, dietary manipulation, facial hold, attention grasp, abdominal slap, facial slap, stress positions, cramped confinement, water dousing and walling. (Id. at ¶ 280). Defendants Mitchell and Jessen never interacted with Soud at COBALT. Soud was released by U.S. Government on August 22, 2004. (Id. at ¶ 281-82).

         Rahman was captured in Pakistan in October 2002. (ECF No. 201 at ¶ 284). Rahman was transferred to COBALT for interrogation. Defendant Jessen arrived at COBALT in early November 2002. (Id. at ¶ 286). The COB asked Jessen to assess Rahman and recommend interrogation tactics. (Id. at ¶ 289). The COB asked Jessen to assess whether EITs should be used on Rahman. (Id. at ¶ 291). Jessen interrogated Rahman over a 48-hour period and at one point used the facial slap EIT. (Id. at ¶ 292-93). Jessen concluded Rahman was strong, centered, focused, and good at resistance. Jessen recommended Rahman be interrogated frequently and that environmental deprivations continue. (Id. at ¶ 295 & 297).

         Jessen observed Rahman being subjected to two unauthorized techniques - the “hard take down” and cold showers. (Id. at ¶ 299 & 300). During the “hard take down” Rahman was dragged from his cell, his clothes cut off, hands taped, and a hood put over his head. (ECF No. 175, Ex. S ¶ 107). Rahman was run up and down the hall, sometimes stumbled and was dragged. (Id.). Rahman was slapped and punched in the stomach. (Id.). Jessen said the take down was “rehearsed and professionally executed” according to the CIA's Inspector General Report. (Id.). Mitchell then arrived at COBALT. (ECF No. 201 at ¶ 305). The COB at COBALT asked Defendants to administer a mental health status exam and provide an assessment of interrogation measures. (Id. at ¶ 306). Mitchell observed one interrogation of Rahman, but did not himself interrogate Rahman. (Id. at ¶ 308). Jessen recommended a continued interrogation plan for Rahman, and sent a cable to HQS stating in part: “The most effective interrogation plan for Gul Rahman is to continue the environmental deprivations he is experiencing and institute a concentrated interrogation exposure regimen.” (Id. at ¶ 309). Defendants then left COBALT. At the time they left, Rahman had been detained for 10 days. (Id. at ¶ 311-313). Approximately 6 days after Defendants left, Rahman died. Rahman was found ‘short-chained' with his hands and feet shackled and a chain connecting the shackles which forced him to sit on the concrete floor. He was naked from the waist down. The temperature at COBALT was near freezing. The cause of death was determined by an Office of Inspector General investigation to be hypothermia. (Id. at ¶ 322-330).

         In March 2005, Defendants formed Mitchell, Jessen & Associates (“MJA”) to provide “qualified interrogators, detainee security officers for CIA detention sites, and curriculum development and training services” for the Program. (ECF No. 201 at ¶ ...


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