Salim v. Mitchell (268 F. Supp. 3d 1132, 2017)

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 Jes-sen. Hina Shamsi, Steven Watt, Dror La-din, 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 (“Sal-ira”), Moharaed Ahmed Ben Soud (“Soud”), and Gul Rahman (“Rahman”) collectively herein Plaintiffs) were the victims of psychological and physical torture. Plaintiffs are all foreign citizens, and bring these claims pursuant to the Men 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 waterboarding.”(M). 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 cpld 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 GIA 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. 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 waterboarding. (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 Rah-man

Gul Rahman was born in Afghanistan. In October 2002, Mr. Rahman was living in Pakistan where we was detained by a joint U.SVPakistani 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 A1-Qa’ida Resistance to Interrogation Techniques: Á 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 Zu-baydah’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 waterboarding.- (Id. at ¶ 43-44). Defendants argued waterboarding 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 waterboarding. (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 ¶ 65-56). 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 fíléd 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 pf 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 Counterterrorism 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 2\, 2001, Mitchell entered into another contract with the CIA, this time for “consultation and research on counterterrorism 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 $l,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 Jes-sen 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, Counterter-rorism. (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 interrogar tion 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 téato 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 vtould 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 the same 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 Condoleé'za 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' “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 ' waterboard 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 videoconference was scheduled with HQS for August 13, 2002 to view the application of the EITs to AZ. (Id. at ¶ 196). After the videoconference, 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 Jes-sen 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 2008. (Id. at ¶ 260).

Plaintiff Salim was arrested in 2003 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. Sal-im 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 takedown” and cold showers. (Id. at ¶ 299 & 300). During the “hard takedown” 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 takedown 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 Rahmán, 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 Rah-man 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. (EOF No. 201 at ¶336). From 2005 to 2009, MJA was paid between $72 and $81 million dollars.

III. Standard of Review

The purpose of summary judgment is to avoid unnecessary triáis when there is no dispute as to the material facts before' the court. Northwest Motorcycle Ass’n v. U.S. Dept. of Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994). A motion for summary judgment will be granted when, viewing the evidence and the inferences arising therefrom in the light most favorable to the nonmoving party, there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). While the moving party does not have to disprove matters on which the opponent will bear the burden of proof at. trial, they nonetheless bear the burden of producing evidence that negates an essential element of the opposing party’s claim and the ultimate burden of persuading the court that no genuine issue of material fact exists. Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102 (9th Cir. 2000), When the non-, moving party has the burden of proof at trial, the moving party need only point out that there is an absence of-evidence to support the-nonmoving party’s case. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).

Once the moving party has carried its burden, the opponent must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Rather, the opposing party must come forward with specific facts showing that there is a genuine issue for trial. Id. Although a summary judgment motion is to be granted with caution, it is not a disfavored remedy: “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2648, 91 L.Ed.2d 265 (1986)(citations and quotations omitted).

IY, Discussion

Defendants raise, four primary arguments in support of their Motion for Summary Judgment: 1) the court lacks jurisdiction due to the Political Question Doctrine; 2) Defendants are entitled to derivative sovereign immunity; , 3) the Alien Tort Statute does not confer, jurisdiction over Plaintiffs’ claims; and 4) Defendants are not directly liable for violating law of nations, nor liable for aiding and abetting or conspiracy. (ECF No. 169). Plaintiffs argue in their Motion for Partial Summary Judgment the undisputed facts establish as a matter of law Defendants are liable under the Alien Tort Statute for aiding and abetting, the torture and other cruel, inhuman, and degrading treatment suffered by Plaintiffs (ECF No, 178), Defendants have additionally filed a Motion seeking to exclude “any evidence- or argument or reference” to the Senate Select Committee on Intelligence Study of the Central Intelligence Agency’s Detention and Interrogation Program (hereafter the “SSCI Report”). (ECF No. 198, p. 2).

1, Defendants’ Motion for Summary Judgment — The court will first address the arguments .raised in Defendants’ Motion for Summary Judgment, many of which were previously raised via Motion to Dismiss. (See Order of. April 28, 2016 Denying Motion to Dismiss, ECF No. 40).

A. Political Question Doctrine

Defendants’ argument concerning the Political Question Doctrine adds little to the argument previously made and rejected by this court. Defendants’ argument relies on several factual and legal contentions which are not conclusively established by the summary judgment record: 1) the CIA exercised complete operational control over Defendants at all relevant times; 2) the EITs were not intended to cause severe physical pain and mental pain or suffering; 3) Defendants acted in good faith and/or the law was unsettled; and 4) “there is no applicable international norm prohibiting” non-consensual human experimentation. (ECF No. 169, p. 10).

Executive branch decisions are not immune from judicial review. See for example N.L.R.B. v. Noel Canning, — U.S.—, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014)(holding the President lacked the power to make the recess appointments at issue in the case). “Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them.” Alperin v. Vatican Bank, 410 F.3d 532, 539 (9th Cir. 2006). The Supreme Court set forth its most detailed discussion of the political question doctrine in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), wherein the Court articulated six considerations: ,1) is. there a textually demonstrable constitutional commitment- of the issue to a coordinate political department; 2) a lack of judicially discoverable and manageable standards for resolving the case; 3) the impossibility of deciding the case without an initial policy determination of the kind clearly.for. nonjudicjal discretion; 4) the impossibility-of the court undertaking independent resolution without expressing lack of respect for coordinate branches of government; 6) an unusual need for unquestioning .adherence to a political decision already made; or 6) potentiality of embarrassment from multifarious pronouncements by various departments on one question.

These six factors have been described as “formulations” and “six independent tests,” yet there is often overlap. Alperin, 410 F.3d at 544. In the arena of foreign affairs, the Supreme Court has “cautioned against sweeping statements that imply all questions involving- foreign relations are political ones.” Id. at 544-45 citing Baker v. Carr. The Supreme Court has stated, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Baker, 369 U.S. at 211, 82 S.Ct. 691. The Ninth Circuit has stated: “The Supreme Court has made clear that the federal courts are capable of reviewing military decisions, particularly when those decisions cause injury to civilians,” Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir. 1992).

Defendants urge the court to follow a two-part test utilized by the Fourth Circuit Court of Appeals in Taylor v. Kellogg Brown & Root, 658 F.3d 402 (4th Cir. 2011). This court is obviously not required to follow Fourth Circuit precedent. However, the Fourth Circuit’s Al Shimari case was extensively discussed during a hearing on Defendants’ Motion to Dismiss. The Al Shimari ease has three times been dismissed by the district court, and three times reversed by the Fourth Circuit. In early briefing in this case (EOF No. 29), Defendants relied heavily on the District Court opinion from the Eastern District of Virginia, Al Shimari v. CACI Premier Technology, 119 F.Supp.3d 434 (E.D.Va. 2015), where the court dismissed the action based on the political question doctrine. However, the Fourth Circuit reversed that dismissal. See Al Shimari v. CACI Premier Technology, 840 F.3d 147 (4th Cir. 2016). The Al Shimari case involves four Iraqi nationals who brought suit concerning their detention and treatment at Abu Gh-raib prison in 2003 and 2004. The defendant, CACI, “provided contract interrogation services for the military.” Id, at 151, The Fourth Circuit stated: “We hold that conduct by CACI employees that was unlawful when committed is justiciable, irrespective of whether that conduct occurred under the actual control of the military.” Id. The coprt further found actions would be shielded from judicial review under the political question doctrine “if they were not unlawful when committed and occurred under the actual control of the military.” Id.

Defendants’ argument asks the court to determine inter alia that they acted only under the control of the CIA and to determine Defendants’ intent. It further asks the court to determine if Defendants’ actions were lawful. These are ultimate questions, and “when the jurisdictional facts and the facts central to a tort claim are inextricably intertwined the district . court ordinarily should withhold a determination regarding subject matter jurisdiction and proceed to the merits of the case.” Id. at 154.

The court finds it does not lack jurisdiction under the political question doctrine. Other courts have adjudicated cases touching on the same, or similar, subject matter. The Ninth Circuit has already adjudicated a case involving the several year detention of an'American citizen, allegedly “held incommunicado in military detention, subjected to coercive interrogation techniques and detained under harsh conditions.” The Defendant was a Deputy Assistant Attorney General with the Department of Justice. See Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012); The Supreme Court has found it had jurisdiction to “consider challenges to the legality of detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base.” See Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004). Much closer in time to the events of September 11, 2001, the courts of this country have adjudicated cases involving Executive and Legislative branch actions taken in response to those attacks. See for example Hamdi v. Rumsfeld, 542 U.S. 507, 509, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)(“At this difficult time in our Nation’s history, we are called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an ‘enemy combatant’ ... We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.”). The Ninth Circuit has stated a “claim of military necessity will not, without more, shield governmental operations from judicial review.” Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir. 1992). The court further stated, “this is true in time of war as well as in time of peace, and with respect to claims by enemy civilians as well as by Americans.” Id. at 1332. These cases demonstrate the court is not required to decline jurisdiction based on political question doctrine.

Defendants’ Motion for Summary Judgment based on the political question doctrine is DENIED.

B. Derivative Sovereign Immunity

Defendants claim as private contractors performing work on the Government’s behalf they are immune from suit under the doctrine of derivative sovereign immunity. Defendants seek immunity pursuant to two Supreme Court cases: 1) Yearsley v. W.A. Ross Const. Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 564 (1940); and 2) Filarsky v. Delia, 566 U.S. 377, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012). Under Yearsley immunity Defendants argue they acted pursuant to validly conferred authority and within the scope of their contracts, and aré therefore entitled to immunity. Plaintiffs argue the Government may not immunize illegal acts by delegating them to private parties. Plaintiffs contend the Executive could not lawfully authorize torture and abuse, and therefore immunity does not shield the Defendants.

Citing Filarsky, Defendants argue they should not be “left holding the bag-facing full liability for actions taken in conjunction with government employees who enjoy immunity for the same activity.” (ECF No. 169, p. 19). However, as Plaintiffs pointed out at prior arguments, Defendants can hardly be considered to be left ‘holding the bag. They operated under a profit incentive different than that of Government employees. The Defendants and the company they formed were paid $80 million dollars. There is an indemnity provision in the contracts between the Government- and the CIA under which the CIA has paid the considerable defense litigation expenses for this action.

Defendants argue Filarsky immunity is available if the contractor’s claim for immunity is: 1) historically grounded in the common law; and 2) did not violate clearly established rights. (ECF No. 169, p. 19). Plaintiffs argue Defendants are not entitled to derivative immunity under Fi-larsky because psychologists were not traditionally entitled to immunity at common law and Defendants violated clearly established rights. Defendants’ argument fails under both prongs'. Defendants argue psychiatrists and psychologists are given immunity when they render an opinion on a criminal defendant’s mental competency in a legal proceeding. Defendants’ actions herein are not analogous to a psychologist assisting court proceedings by evaluating a criminal defendant and writing a report or testifying. Additionally, Plaintiffs rely on Jensen v. Lane County, 222 F.3d 570 (9th Cir. 2000) for the proposition that medical doctors performing psychological assessments during commitment proceedings are not entitled to immunity. In Jensen the court referenced a lack of a “firmly rooted tradition” of such immunity. Id. at 577. The court also addressed privatization and market force arguments in acknowledging distinctions between private contractors and government employees. The- court observed “the potential for insurance, indemnification agreements, and higher pay all may operate to encourage qualified candidates” to undertake such obligations even without immunity; Id. Defendants have not established their claim for immunity is historically grounded in the common law.

Secondly, Defendants argue it was not clearly established that subjecting an individual to torture or other cruel, inhuman, and degrading conditions violated clearly established rights, citing to Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012). However, the illegality of torture is long-established. See for example Filartiga v. Pena- Irala, 630 F.2d 876, 884 (2nd Cir. 1980)(“We conclude that official torture is now prohibited by the law of nations. The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens.”). The case Defendants rely upon states, “the unconstitutionality of torturing a .United States citizen was beyond debate by: 2001.” Padilla v. Yoo, 678 F.3d 748, 763 (9th Cir. 2012). The inquiry in this case is whether the enhanced interrogation methods outlined in the Program constituted “torture”.

In addition to Defendants’ reliance on Yearsley and Filarsky, the analysis must include the Supreme Court’s more recent discussion of derivative sovereign immunity in Campbell-Ewald v. Gomez, — U.S. —, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016). Therein the Supreme Court framed the question as: “Do federal contractors share the' Government’s unqualified immunity from liability and litigation?” Id. at 672. The Court answered the question quite succinctly and definitively: “We hold they do not.” Id. The majority opinion could be read as somewhat dismissive of the concept: “Campbell asserts ’derivative sovereign immunity,- but can offer no authority for the notion that private persons performing Government work acquire the Government’s . embracive immunity.” Id. (internal citations omitted). The Court construed a private contractor’s immunity as “qualified” and it may be. overcome “if the defendant knew or should have known that his conduct violated a right clearly established at the time of the episode in suit.” Id. at 673.

Government contractor immunity “unlike the sovereign’s, is not absolute.” Campbell-Ewald, 136 S.Ct. at 672. An inquiry is required into whether the contractor “exceeded his authority,” or whether the governmental authority “was not validly conferred.” Id. at 673. In either of those circumstances, the contractor could be liable. As the Supreme Court instructed in Campbellr-Ewald, “at the pretrial stage of litigation, we construe the record in a light favorable to the party seeking to avoid summary disposition.” Id. Plaintiffs’ contentions are not merely that Defendants Mitchell and Jessen acted specifically at the direction of the Government, but rather that they designed and implemented an experimental torture program. (ECF No. 1, ¶ 20). Plaintiffs argue it was Defendants who proposed the “pseudoscientific theory” of “learned helplessness.” (Id. at ¶25). Plaintiffs allege, “Defendants'helped convince Justice Department lawyers to authorize specific coercive methods” and argued to the Attorney General for the use of waterboarding as “an absolutely convincing technique.”. (Id. at ¶ 43-44). It is also alleged Jessen and Mitchell personally participated in the torture of Abu Zubay-dah, including waterboarding. (Id. at ¶ 46-52).

Plaintiffs’ allegations are largely supported by the factual'record. Defendants make several conclusory assertions that they acted only at the direction of the CIA, that the CIA was “responsible”, or that the CIA had full operational control. However, the allegation Defendants had a role in designing the Program is supported by the evidence. Jose Rodriguez testified that pri- or to September 2001 the CTC had no expertise in interrogation, he asked Mitchell to “put together an interrogation program”, and Mitchell was the “architect” of the Program. (ECF1 No. 195, Ex. A, Rodriquez Depo. p. 46-47, 52-53, 55), Rodriguez further testified he asked Mitchell to “take charge of .creating and implementing” the Program, and Defendants’ proposal became the CIA’s Program. (Id. at p. 58 & 63). John Rizzo testified Defendants were the “architects” of the Program and Defendants trained other CIA interrogators. (ECF No. 195, Ex. D, Rizzo Depo. p. 67 & 69). The CIA Inspector General Report of May 7, 2004 stated, “the two psychologists [Defendants] developed a list of new and more aggressive EITs that they recommended' for use in interrogations.” (ECF No. 176’, Ex. 25, p. 13, ¶ 32).

The factual evidence supports Plaintiffs’ assertions that Defendants recommended the EITs and advocated for waterboarding as a convincing measure. A CIA cable, apparently from July 2002, with subject “Comments on Proposed Enhanced Interrogation Process,” has a section entitled, “IC SERE Psychologists Feedback.” (ECF No. 176, Ex. 40). That section reads in part: “The plan hinges on the use of an absolutely convincing technique. The wa-terboard meets this need. Without the wa-terboard, the remaining pressures would constitute a 50 percent solution...” (Id.). John Rizzo testified Mitchell and Jessen were the only SERE psychologists providing advice to the CIA. (ECF No. 195, Ex. D, Rizzo Depo. p. 177),

The evidence is undisputed Defendants administered EITs to Abu Zubaydah, including waterboarding. Mitchell’s own book describes he and Jessen utilizing the waterboarding technique on AZ, A CIA cable entitled, “Increased Pressure In The Next Phase of The Abu Zubaydah Interrogations” from July 2002 states Defendants will be the interrogators during the “increased pressure phase”. (ECF No. 175, Ex. I). It states AZ will be subjected to a series of “fear and despair rounds” for approximately 30 days, and “the effectively orchestrated treatment of Abu Zubaydah will convey the feeling of helplessness.” (Id. at p. 6-7).

Defendant Jessen testified about his interactions with Rahman, including that he utilized the facial slap on Rahman. Jessen’s testimony would support a reasonable inference that he was not specifically authorized to use EITs on Rahman. When asked how he knew the facial slap was authorized, he~ testified: “I was authorized to use these techniques. I was asked by the CIA to' assess him for their use. The only reasonable way to determine that would be to pick the least intrusive one, see how he responded ...” (ECF No. 195', Ex. F, Jessen Depo. p. 214-215). The finder of fact could find such testimony contradicts the defense assertions the CIA exercised absolute control over who would be subjected to EITs and which EITs would be used.

The CIA Inspector General Report of April 27, 2005 concerning the Death of Rahman indicates Jessen played á significant’ role in his" interrogation. (ECF No. 175, Ex. S). The Report states Rahman “underwent at least six interrogation sessions” and the interrogation team included Jessen. (Id. at ¶3). A lead CIÁ Staff Officer at COBALT told investigators “Rah-man was the responsibility of Jessen.” (Id. at ¶ 53). Jessen drafted cables documenting the interrogation sessions with Rah-man. (Id. at ¶54). Mitchell came to COBALT and “participated in one of Jessen’s sessions with Rahman”, and then Defendants left COBALT six days prior to Rah-man’s, death. (Id. at ¶57). The Report states Jessen. “prepared the interrogation plan for Rahman” before departing COBALT. (Id. at ¶ 70). A CIA Staff Officer told investigators Jessen’s recommendations included continuation of “environmental deprivations.” (Id. at ¶ 123). The Report concludes a CIA Staff Officer’s decision to have Rahman short-chained to a concrete floor, while wearing only a sweatshirt in near freezing temperatures, “directly led to Rahman’s death by hypothermia.” (Id. at ¶ 173). The Report found the CIA Staff Officer exhibited “reckless indifference”. to Rahman’s life. (Id. at ¶ 10). Apparently criminal charges were investigated but never filed.

As Defendants are requesting summary judgment on this issue, the facts are viewed in a light favorable to the non-movant Plaintiffs. The finder of fact could conclude Defendants Mitchell and Jessen had a significant role in the design of the Program. A jury could find they were not acting merely and solely as directed by the Government. See Cabalce v. Thomas E. Blanchard & Associates, 797 F.3d 720, 732 (9th Cir. 2015)(“We have held that derivative sovereign immunity ... is limited to cases in which a contractor ‘had no discretion in the design process and completely followed government specifications.’ ”). Additionally, Defendants were involved in the actual interrogations of certain individuals, including Rahman, which occurred in foreign, secret, locations. The finder of fact could conclude that although the CIA may have maintained ultimate control of the Program, Defendants, being on site, exercised significant control during individual interrogations. For example, excerpts from Mitchell’s book describe that he decided to deviate from the legal guidance on the length of pours during waterboarding. He states, “legal guidance said we could pour water between 20 to 40 seconds and then lower the cloth and pour water another 20 to 40 seconds, and so on, for 20 minutes.” (ECF No. 195, Ex. C p. 83). He states, “it quickly became apparent that 20 seconds was too long for the shortest pour,” and he “decided, on the spot, to shorten the pours.” (Id. at p. 84). This is further evidence Defendants exerciséd discretion in applying the EITs.

The factual record would support a finding Defendants had a role in the design of the Program, trained interrogators for the Program, and exercised some discretion in the application of the Program. Defendants have not established they merely acted at the direction of the Government, within the scope of them authority, and that such authority was legally and validly conferred.

Defendants’ Motion for Summary Judgment on the basis of derivative sovereign immunity is DENIED.

C. Alien Tort Statute

Defendants renew the argument previously raised via Motion to Dismiss that the ATS does not apply extraterritorially and the court lacks jurisdiction. Defendants now rely on more recently decided Supreme Court precedent, RJR Nabisco v. European Cmty., — U.S.—, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (2016). Defendants contend under the Supreme Court’s “focus test” if the conduct relevant to the statute’s focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory. (ECF No. 169, p. 21-22).

In its prior Order denying Defendants’ Motion to Dismiss, this court found Plaintiffs’ allegations sufficient to meet the ‘touch and concern’ standard of Kiobel v. Royal Dutch Petroleum, 569 U.S. 108, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), and overcome the presumption against extraterritorial application of the ATS. Defendants now rely on RJR Nabisco to argue the ‘focus’ test should be applied in the context of the ATS. The Ninth Circuit has previously rejected this argument. Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1028 (9th Cir. 2014)(“Morrison [v. Nat’l Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) ] may be informative precedent for discerning the content of the touch and concern standard, but the opinion in Kiobel II did not incorporate Morrison’s focus test.”). Additionally, the Ninth Circuit stated, “since the focus test turns on discerning Congress’s intent when passing a statute, it cannot sensibly be applied to ATS claims, which aré common law claims based on international legal norms.” Id. at 1028. The Ninth Circuit in Nestle did not ultimately resolve the argument concerning extraterritorial application of the ATS, but remanded for further proceedings.

RJR Nabisco is not an ATS case, but rather at issue was the extraterritorial application of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Thus the case did not speak directly to extraterritorial application of the ATS, but it did discuss Kiobel. The Supreme Court stated: “Morrison and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted ... If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking at the statute’s focus.” 136 S.Ct. at 2101. In Kiobel the Court found “the presumption against extraterritoriality applies to claims under the ATS,” but it did not proceed to a focus inquiry. 133 S.Ct. at 1669. Instead, the Kiobel court made the statement that when claims “touch and concern” the territory of the United States “with sufficient force” they may displace the presumption against extraterritorial application. Id. Justice Kennedy, concurring, observed the majority opinion “is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.” Id. Justices Alito and Thomas, concurring, also observed the touch and concern “formulation obviously leaves much unanswered.” Id. The four other concurring Justices in Kiobel (Breyer, Ginsburg, Sotomayor, and Kagan), would not invoke the presumption against extaterri-toriality and instead would find ATS jurisdiction where: “(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” Id. at 1671.

This court finds RJR Nabisco has not displaced Kiobel when the issue is extraterritorial application of the ATS. Therefore, Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1028 (9th Cir. 2014) remains controlling authority, including its determination that Kiobel II did not incorporate Morrison’s focus test. The court is aware on remand the district court in Nestle dismissed the Second Amended Complaint and found: “Nestle’s conclusion that the Morrison focus test did not apply to ATS claims is in irreconcilable conflict with subsequent Supreme Court and Ninth Circuit cases.” (C.D. Cal., Case #05-CV-5133, ECF No. 249, Order of March 2, 2017). This court disagrees with that conclusion, and notes the Nestle case is again pending on appeal.

The court is also aware of the Fifth Circuit’s recent decision in Adhikari v. Kellogg Brown & Root, 845 F.3d 184 (5th Cir. 2017), wherein a 2-1 decision the court applied the focus inquiry to an ATS claim and affirmed dismissal of plaintiffs’ claims as an impermissible extraterritorial application of the ATS. Therein, the Fifth Circuit acknowledged the Ninth Circuit had taken a different route: “The Ninth Circuit has explicitly held that Kiobel did not incorporate Morrison’s focus test.” Id. at 194. The Fifth Circuit also acknowledged other Circuits had “offered differing interpretations of Kiobel’s ‘touch and concern’ language, including to what extent it adopts Morrison ⅛ ‘focus’ inquiry.” Id. As stated by the dissent in Adhikari, the majority’s application of the focus inquiry “would eliminate the extraterritorial reach of the statute completely.” Id. at 208. This court does not read the Supreme Court’s decision. in Kiobel as entirely, eliminating the extraterritorial reach of the ATS. To apply the touch and concern test or focus test in a manner to deprive the, ATS of all extraterritorial application would be non-lo'gical. As Judge Posner stated of the ATS, writing for the Seventh Circuit prior to Kiobek “Courts have been applying the statute extraterritorially' (and not just to violations at sea) since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially ... Deny extraterritorial application, and the statute would be superfluous, given the ample tort arid criminal remedies ... in this country.” Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013 (7th Cir. 2011). This court will apply' the touch and concern standard, while' acknowledging it is a somewhat vagué standard. See Mujica v. AirScan Inc., 771 F.3d 580, 594 (9th Cir. 2014)(“Ad-mittedly, Kiobel (quite purposely) did not enumerate the specific kinds of connections to