The opinion of the court was delivered by: James Robertson, United States District Judge
Plaintiffs are a number of Algerian citizens and a non-governmental organization of Algerian women called the Rassemblement Algerien de Femmes Democrates (FASD).*fn1 They bring this action under the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350,*fn2 against an Algerian political group known as the Islamic Salvation Front (FIS)*fn3 and one Anwar Haddam, who is or was a member of the FIS. The plaintiffs allege that Haddam assisted and encouraged armed Islamic groups in committing crimes against humanity, war crimes, and other violations of international law and domestic law. Haddam denies any involvement in facilitating or encouraging the alleged acts and moves for summary judgment. His motion will be granted, for the reasons set forth below.
In 1992, the military-backed government of Algeria aborted the first parliamentary elections ever held in that country when it appeared that the FIS, a fundamentalist Islamic group opposed to the military and secular regime, was about to win a majority of the seats. The FIS was dissolved and banned, and several of its leaders were arrested or killed. A bloody and brutal conflict between armed Islamic groups and the military ensued, with many atrocities committed against civilians.
The plaintiffs lay blame for that violence upon the FIS and other Islamic groups, alleging that the FIS espoused an extremist interpretation of Islamic law and encouraged and facilitated armed Islamic groups to kill, injure, and threaten civilians, including political activists and journalists who were critical of Islamic fundamentalism. In this case, they also lay blame upon — and seek to affix liability to — Anwar Haddam, an Algerian citizen and FIS member who was elected to the parliament before the final round of elections was canceled. They allege that Haddam facilitated the FIS in its violent activities and then publicly condoned the violence as the FIS's spokesperson in the United States, by issuing newsletters, communiques, declarations, and other statements from an office that he set up in Washington, D.C.*fn4 Haddam denies the plaintiffs' allegations.
Plaintiffs brought this action in 1996. Several years of litigation were consumed by discovery disputes related to confidentiality issues. Haddam asserted that he could not adequately prepare his defense unless he could obtain basic information about the allegations against him, such as the identities of the anonymous plaintiffs. Both sides resisted making certain disclosures, asserting safety concerns. The individual anonymous "Jane Doe" or "John Doe" plaintiffs, some of whom currently reside in Algeria, said that they feared reprisal from Islamic groups for bringing this action. Haddam said that he feared for himself and his family because of his status as a defendant in this case.
Discovery disputes were twice referred to a magistrate judge, who issued a final report and recommendation on May 25, 2000. Based on that report and recommendation, I quashed a subpoena duces tecum plaintiffs had served upon the INS seeking information related to Haddam's asylum application, and I granted Haddam's motion to compel answers to interrogatories, amending the confidentiality order to require plaintiffs to reveal their identities and to provide specific information about the alleged incidents. Plaintiffs' interlocutory appeal of those rulings was dismissed.
Some of the plaintiffs then voluntarily dismissed their claims (without prejudice). The remaining plaintiffs are:
1. Jane and John Doe I: their son was killed in June
1994 for his opposition to Islamic fundamentalism.
Algerian police suspect that the Armed Islamic Group
(GIA) was responsible. These plaintiffs fled the
country after their home was ransacked.
2. Jane Doe II: witnessed from the airport and watched
on television the hijacking of an airplane by the GIA
on December 24, 1994. Her daughter and sister were
passengers on the plane.
3. Jane Doe IX: her husband, a journalist who worked
for a secular newspaper critical of the Islamic
insurgency, was killed in 1995. The Islamic Salvation
Army (AIS) allegedly placed her husband on its hit
list and advocated his death months before his
4. Omar Belhouchet: he has allegedly received threats
from the FIS. Plaintiff is an editor of El Watan, a
newspaper that opposes the Islamist insurgency. He
alleges that Haddam incited a violent campaign against
5. Zazi Sadou (Jane Doe III): spokesperson for RAFD
and leading Algerian feminist activist. She alleges
that she has been targeted by armed Islamic groups.
She blames Haddam for encouraging violence against
"non-innocents" who opposed the FIS.
6. RAFD: suing on behalf of members who have been
targeted by armed Islamic groups.
I. Statute of limitations
Haddam first seeks to interpose D.C.'s one-year statute of limitations for intentional torts as a bar to all of plaintiffs' ATCA claims, citing Tel-Oren v. Libyan Arab Republic, 517 F. Supp. 542, 550-51 (D.D.C. 1981), aff'd on other grounds, 726 F.2d 774 (D.C. Cir. 1984). The ATCA lacks a specific statute of limitations. In such a situation, courts apply the statute of limitations of a closely analogous federal statute, if federal law "provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking." Reed v. United Transp. Union, 488 U.S. 319, 324 (1989). When Tel-Oren was decided, there was no federal statute that was closely analogous to the ATCA. After the enactment in 1991 of the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350, note, however, the federal courts found the TVPA to be closely analogous to the ATCA and borrowed its ten-year statute of limitations for the ATCA. E.g., Papa v. United States, 281 F.3d 1004, 1012 (9th Cir. 2002); Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887, at *19 (S.D.N.Y. Feb. 28, 2002) (cataloguing three other district court cases). Plaintiffs brought their ATCA claims well within that ten-year period. Their claims are not time-barred.
Haddam next argues that plaintiffs' claims are precluded by the BIA's decision reversing the denial of his asylum application, because the BIA found that he did not in fact participate in plans to target or persecute civilians. In re Anwar Haddam, Interim Decision, 2000 WL 1901995 (BIA 2000) (unpublished). Haddam's contention is that, by providing information to the BIA accusing him of complicity in the violence directed at civilians, plaintiffs "litigated" the issues in this case before the BIA. Plaintiffs were not allowed to testify in that proceeding, but they did provide written submissions making the same allegations against Haddam that they make here. The BIA decision indeed discusses some of the very evidence that plaintiffs offer here, namely, statements attributed to Haddam that condone violence, and information about the link between the GIA and the FIS during 1994-1995. The plaintiffs were not parties to the BIA proceeding, however, Allen v. ...