Appeals Court Revives Psychologists’ Lawsuit After They Were Accused of Helping in Torture

WASHINGTON — The Washington, D.C., Court of Appeals on Thursday revived a defamation lawsuit by retired military psychologists who claimed they were inaccurately accused of encouraging torture during the U.S. war on terrorism.

The ruling also represents a setback for local laws found nationwide intended to get rid of frivolous lawsuits designed to intimidate the persons being sued.

The psychologists sued the law firm of Sidley Austin after being named in the “Hoffman report,” which listed psychologists who it said colluded with the government to develop guidelines for the military to interrogate prisoners.

The Hoffman report is named after Sidley Austin partner David Hoffman. The American Psychological Association commissioned the report.

The report said the psychologists developed “loose, high-level ethical guidelines” for interrogating detainees after the Sept. 11 attacks. They allegedly advanced a Bush administration policy authorizing “enhanced” interrogation techniques, such as waterboarding and prolonged stress positions.

Human rights advocates call the techniques torture.

The 2015 Hoffman report identified psychologists Morgan Banks and Debra Dunivin as “key players” in a task force organized by the American Psychological Association to develop interrogation guidelines that would “produce an outcome that would please DoD.”

Sidley Austin said the report was based on interviews with 150 witnesses and a review of about 50,000 documents. The firm has refused to back down from the report.

Banks and Dunivin, along with fellow task force member Larry James, sued Sidley Austin in 2017 in District of Columbia Superior Court. They argued that rather than encouraging torture, they tried to stop it.

After the Hoffman report, they said in their lawsuit they were subjected to “renewed and ongoing calls” for criminal prosecution.

A D.C. Superior Court judge dismissed the lawsuit, citing the District’s Anti-SLAPP Act.

SLAPP is an acronym for “Strategic Lawsuits Against Public Participation,” also sometimes known as intimidation lawsuits. Plaintiffs sometimes file the lawsuits to intimidate or silence critics by burdening them with legal defense costs or making it difficult for them to operate until the litigation is resolved.

The plaintiffs accomplish their goal when the defendants give up, normally by settling the lawsuit.

The Anti-SLAPP Act authorizes courts to dismiss the lawsuits as soon as the evidence indicates intimidation is a primary motive of the plaintiffs.

In reviving the lawsuit last week, the D.C. Court of Appeals said the law oversteps the authority of the D.C. Council that approved it by interfering with constitutional rights to procedural due process. The judge cut the fact-finding, or discovery, phase of pretrial proceedings too short before dismissing the lawsuit, the appellate court said.

Washington, D.C.’s, Anti-SLAPP law says, “[a] party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest.”

The “advocacy” and “public interest” in this case was the Hoffman report.

The trial court should have more closely followed the Federal Rules of Civil Procedure rather than deferring to the local Anti-SLAPP Act, the three-judge appeals court’s opinion said.

The appellate court did not rule on the defamation claims of the psychologists, instead ordering that their lawsuit can continue.

Besides the District of Columbia, 32 states have enacted Anti-SLAPP laws.

The case is Banks et al. v. Hoffman et al. in the District of Columbia Court of Appeals.

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