The opinion of the court was delivered by: JAMES ROBERTSON, District Judge
Plaintiffs sue seeking compensation from two private government
contractors for alleged acts of torture inflicted upon them at
the Abu Ghraib prison in Iraq. Defendants move to dismiss on a
number of grounds. Their motion must be granted as to most
counts. It will be denied however, as to several of plaintiffs'
common law claims.
Plaintiffs are seven Iraqi nationals who allege that they or
their late husbands were tortured while detained by the U.S.
military at the Abu Ghraib prison in Iraq. Defendants are private
government contractors who provided interpreters (Titan) and
interrogators (CACI) to the U.S. military in Iraq. Plaintiffs
apparently concede that they cannot sue the U.S. Government
because of sovereign immunity.
Plaintiffs' allegations are broad and serious. They assert that
defendants and/or their agents tortured one or more of them by:
beating them; depriving them of food and water; subjecting them to long periods of excessive noise; forcing them
to be naked for prolonged periods; holding a pistol (which turned
out to be unloaded) to the head of one of them and pulling the
trigger; threatening to attack them with dogs; exposing them to
cold for prolonged periods; urinating on them; depriving them of
sleep; making them listen to loud music; photographing them while
naked; forcing them to witness the abuse of other prisoners,
including rape, sexual abuse, beatings and attacks by dogs;
gouging out an eye; breaking a leg; electrocuting one of them;
spearing one of them; forcing one of them to wear women's
underwear over his head; having women soldiers order one of them
to take off his clothes and then beating him when he refused to
do so; forbidding one of them to pray, withholding food during
Ramadan, and otherwise ridiculing and mistreating him for his
religious beliefs; and falsely telling one of them that his
family members had been killed.
Plaintiffs assert claims under the Alien Tort Statute, RICO,
government contracting laws, and the common law of assault and
battery, wrongful death, false imprisonment, intentional
infliction of emotional distress, conversion, and negligence. The
motion to dismiss generally asserts lack of jurisdiction and
failure to state a claim upon which relief can be granted. Of
particular interest are defendants' submissions that plaintiffs'
claims present non-justiciable political questions, that "the law of nations" under the Alien Tort Statute does not cover torture
by non-state actors, and that plaintiffs' common law tort claims
are preempted by the government contractor defense.
A motion to dismiss for failure to state a claim under Rule
12(b)(6) will be granted only if it "appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The complaint will be construed in the light
most favorable to the plaintiff, and the plaintiff will have "the
benefit of all inferences that can be derived from the facts
alleged." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994) (internal citations omitted). On the other hand,
a court may accept "neither `inferences drawn by plaintiffs if
such inferences are unsupported by the facts set out in the
complaint,' nor `legal conclusions cast in the form of factual
allegations.'" Browning v. Clinton, 292 F.3d 235, 242 (D.C.
Cir. 2002) (quoting Kowal, 16 F.3d at 1275).
A motion to dismiss for lack of jurisdiction under Rule
12(b)(1) is treated like a Rule 12(b)(6) motion. E.g., Barr v.
Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). To survive a Rule
12(b)(1) motion, a plaintiff has the burden of establishing that jurisdiction is proper. E.g., Macharia v. United States,
334 F.3d 61, 67-68 (D.C. Cir. 2003).
Plaintiffs assert that defendants violated the "law of nations"
as described in the Alien Tort Statute (ATS), 28 U.S.C. § 1350.
The ATS provides: "The district courts shall have original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the
United States." In Sosa v. Alvarez-Machain, 124 S. Ct. 2739
(2004), the Supreme Court settled an old question by announcing
that the ATS confers jurisdiction but does not create a cause of
action. The Sosa decision also made it clear that, in limited
circumstances, aliens can look to the "law of nations" for a
federal common law cause of action. Id.
The ATS was first enacted as part of the Judiciary Act of 1789.
The only "violation[s] of the law of nations" known at that time
were "violation of safe conducts, infringement of the rights of
ambassadors, and piracy." Id. at 2761. New claims may be
recognized under common law principles, but they must "rest on a
norm of international character accepted by the civilized world
and defined with a specificity comparable to the features of the
18th-century paradigms we have recognized." Id. at 2761-62. The
Court in Sosa discussed five factors counseling very great
caution on this front: 1) common law judges in the past were seen as "discovering" law, but they are now seen as making or creating
law; 2) since Erie v. Tompkins, 304 U.S. 64 (1938), the role of
federal common law has been dramatically reduced, and courts have
generally looked for legislative guidance before taking
innovative measures; 3) creating private rights of action is
generally best left to the legislature; 4) decisions involving
international law may have collateral consequences that impinge
on the discretion of the legislative and executive branches in
managing foreign affairs; and 5) there is no mandate from
Congress encouraging judicial creativity in this area, and in
fact there are legislative hints in the opposite direction. See
id. at 2762-63.
Plaintiffs make reference to numerous treaties and other
sources of international law that strongly condemn torture. Those
authorities generally address official (state) torture, and the
question is whether the law of nations applies to private
actors like the defendants in the present case. The Supreme
Court has not answered that question, see id. at 2766 n. 20,
but in the D.C. Circuit the answer is no. In Tel Oren v. Libyan
Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), cert. denied,
470 U.S. 1003 (1985), victims of a 1978 terrorist attack in
Israel sued a number of parties, including several private
organizations, for violations of the law of nations under the
ATS. A three-judge panel unanimously dismissed the case with
three separate opinions. Judge Edwards gave the ATS the broadest reach,*fn1
generally agreeing with the Second Circuit's landmark decision in
Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980), that
acts of official torture violate the law of nations. See
Tel-Oren, 726 F.2d at 386-87, 791. However, Judge Edwards found
no consensus that private actors are bound by the law of nations.
Id. at 791-95.*fn2 The Court of Appeals addressed the
issue again only a year later in Sanchez-Espinoza v. Reagan,
770 F.2d 202 (D.C. Cir. 1985), a case involving allegations of
"execution, murder, abduction, torture, rape, [and] wounding" by
the Nicaraguan Contras, id. at 205, stating quite clearly that
the law of nations "does not reach private, non-state conduct of
this sort for the reasons stated by Judge Edwards in Tel-Oren v.
Libyan Arab Republic, 726 F.2d ...