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Kar v. Rumsfeld

September 26, 2008

CYRUS KAR, PLAINTIFF,
v.
DONALD RUMSFELD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM

Cryus Kar, a U.S. citizen, was seized and detained by the U.S. military in Baghdad for nearly two months in 2005. He sues for violations of his Fourth and Fifth Amendment rights. The defendants -- the Secretary of Defense, two generals, and John Does -- move to dismiss. The motion will be granted.

Background

Kar's allegations are taken as true for the purpose of this motion. He alleges that he went to Iraq in May 2005 to work on a historical documentary; that on May 17, he and his cameraman, an Iranian national, hired a taxi from the central taxi depot in Baghdad to take them to a site they were to film; that Iraqi police stopped the taxi at a routine vehicle checkpoint near the city of Balad; that, upon searching the vehicle, the police found washing machine timers in the trunk; and that, because such timers are a common component of improvised explosive devices ("IEDs"), the police arrested him, his cameraman, and the taxi driver.

Kar informed the Iraqi police of his U.S. citizenship and was transferred to U.S. military custody. The military took him to the Poliwada detention center, where he was questioned by a U.S. Army officer. Kar told the officer that the timers were not his, that he had not known they were in the taxi, and that he did not know the taxi driver. The officer told him later that day that the taxi driver had confirmed Kar's story.

Two days later, the military transported Kar from Poliwada to a detention center in Tikrit, to Abu Ghraib prison shortly thereafter, and ultimately to Camp Cropper, a military detention center near the Baghdad airport. During this initial transfer and detention period, he was held in an "outdoor cage" for hours at a time in the sweltering heat, he passed out from heat exhaustion while being transported to Tikrit, and a guard at Abu Ghraib slammed his head against a wall.

Kar spent the next seven weeks at Camp Cropper, in solitary confinement, in a small cell with no toilet or sink. He was permitted to leave the cell for one hour a day, spending the hour in an outdoor chain-link cage covered with a tarp.

Four days after his arrival at Camp Cropper, Kar was interrogated by an FBI agent. When he asked the agent if he could speak with an attorney, the agent laughed and replied that none were available. The agent added that Kar had the right to remain silent, but he said that the last person to exercise that right was still being detained in Afghanistan two years later. Kar ultimately agreed to take a lie detector test and consented to a search of his home in Los Angeles.

On May 23, FBI agents searched Kar's home and seized his computer, personal files, and certain financial records. Approximately two weeks later, FBI agents returned Kar's belongings to his family, informed them that the FBI had found nothing incriminating during its investigation, and told them to expect Kar back in the United States shortly. When Kar did not return after a week, his family contacted the American Civil Liberties Union. ACLU attorneys asked several government agencies about Kar's status, and requested his immediate release. They also filed a habeas petition with this Court.

Back at Camp Cropper, Kar took a lie detector test on June 15. He once again asked for, and was denied, an attorney, but he was told that he had passed the test. On July 1, Kar received a letter written by the officer then serving as president of the Detainee Status Board. The letter informed him that a hearing would be held on July 4 to determine his status under the Geneva Convention; that the military suspected him of possessing explosive materials at the time of his arrest; and that he was not entitled to legal counsel, but could have a "personal representative" at the hearing.

Kar's hearing took place as scheduled on July 4 before three military officers. Kar once more requested an attorney. He asked that the FBI agents and military officers who interrogated him and the cameraman who accompanied him in the taxi be summoned as witnesses. He asked for the reports of his interrogation and the results of his lie detector test. Most of these requests were denied: the cameraman was permitted to testify, and the lie detector test results were read aloud.

The military officers decided that Kar was innocent and recommended his immediate release. Two days later, still in detention, Kar received another letter from the Detainee Status Board, confirming that he had been classified as an "Innocent Civilian" and was scheduled for immediate release. On July 10 --54 days after his detention, six days after his status hearing, four days after the letter from the Detainee Status Board, and one day before the U.S. was required to respond to the habeas petition filed in this Court on Kar's behalf -- Kar was released.

What remains of Kar's suit after his voluntary dismissal of his claims for declaratory relief (see Dkt. 17), and the dismissal of his claims for violations of the law of Nations and the Geneva Conventions (for failure to exhaust administrative remedies; see Rasul v. Myers, 512 F.3d 644, 662-63 (D.C. Cir. 2008)), is a Bivens action for damages. The named defendants, former Secretary of Defense Donald Rumsfeld, General George Casey, General William Brandenburg, and various John Does who participated ...


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