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August 12, 2005.

ILHAM NASSIR IBRAHIM, et al., Plaintiffs,
TITAN CORPORATION, et al., Defendants.

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.


Legal standard

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).

Alien Tort Statute Claim

Plaintiffs assert that defendants violated the "law of nations" as described in the Alien Tort Statute (ATS), 28 U.S.C. ยง 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 ...

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