The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiffs Talal Al-Zahrani ("Al-Zahrani, Sr.") and Ali Abdullah Ahmed Al-Salami ("Al-Salami, Sr."), in their individual capacities and as the representatives of the estates of their sons, Yasser Al-Zahrani ("Al-Zahrani") and Salah Ali Abdullah Ahmed Al-Salami ("Al-Salami"), have sued the United States and a host of government officials under the Alien Tort Claims Act ("ATCA" or "ATS"), 28 U.S.C. § 1350 (2006); the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680; and the Fifth and Eighth Amendments to the United States Constitution. Al-Salami and Al-Zahrani were detainees at the United States Naval Base in Guantanamo Bay, Cuba from 2002 until their deaths on June 10, 2006. Currently before the Court are the individual defendants' motion to dismiss plaintiffs' constitutional claims, the government's motion for substitution for plaintiffs' ATCA claims, and the government's motion to dismiss plaintiffs' claims under the ATCA and FTCA. For the reasons set forth herein, the Court will grant defendants' motions.
Plaintiffs allege the following in their amended complaint. Yasser Al-Zahrani, Jr., a citizen of Saudi Arabia, and Salah Ali Abdullah Ahmed Al-Salami, Jr., a citizen of Yemen, were among nearly 800 individuals deemed to be "enemy combatants" by the United States government and transferred to Guantanamo beginning in January 2002. (Am. Compl. ¶¶ 11, 13, 43-44.) Al-Zahrani was apprehended in Afghanistan in late 2001 and was moved to Guantanamo in January 2002, when he was 17 years old. (Id. ¶ 83.) Al-Salami was arrested by local forces in Pakistan in March 2002. (Id. ¶ 125.) He was held in Pakistani custody until May 2002, when he was turned over to U.S. authorities. (Id.) Following detention in one or more U.S.-controlled sites in Afghanistan, Al-Salami was transferred to Guantanamo in June 2002. (Id.)
After two and a half years of confinement, in the fall of 2004, Combatant Status Review Tribunals ("CSRTs") were convened to review the detentions of Al-Zahrani and Al-Salami. During the proceedings before the CSRTs, Al-Zahrani and Al-Salami were presumed to be enemy combatants, denied the right to an attorney, and denied the right to see all of the evidence used against them. The CSRTs confirmed earlier findings that both detainees were enemy combatants and that they were therefore subject to continued detention at Guantanamo. (Id. ¶¶ 85, 128.) Administrative Review Boards ("ARBs") were convened in 2005 and 2006 to review Al-Zahrani's and Al-Salami's detentions and after a hearing, the ARBs affirmed the conclusions of the CRSTs. (Id. ¶¶ 86, 129.) As a result, Al-Zahrani and Al-Salami remained in U.S. custody at Guantanamo until their deaths, though neither man was ever charged with a crime. (Id. ¶ 41.)
Plaintiffs further allege that during the years in which Al-Zahrani and Al-Salami were imprisoned at Guantanamo, they endured inhumane and degrading conditions of confinement and violent acts of torture and abuse. (Id. ¶¶ 51-70.) Conditions at Guantanamo included detention in six-by-six foot cages and exposure to the elements, followed by near-constant enclosure in sealed, concrete cells with 24-hour camera monitoring, continuous florescent lighting, and no air conditioning; isolation and confinement with little human contact, exercise, or access to soap, toilet paper, toothbrushes, or other basic items; and little or no communication with family members or the outside world. (Id. ¶¶ 53, 56-59.) Plaintiffs also allege that AlZahrani and Al-Salami were subjected to "specific methods and acts of physical and psychological torture and abuse," including sleep deprivation, exposure to prolonged temperature extremes, invasive body searches, beatings, threats, inadequate medical treatment and withholding of necessary medication, and religious abuse, such as forced shaving and desecration of the Qur'an. (Id. ¶¶ 61, 93, 138-140.) The amended complaint also alleges that Al-Zahrani and Al-Salami were among the hundreds of detainees at Guantanamo who participated in hunger strikes for weeks or months at a time to protest their conditions and continued detention. (Id. ¶¶ 66, 96, 142-44.) As a result of these hunger strikes, Al-Zahrani and Al-Salami were strapped into "restraint chairs" and force-fed formula using painful, humiliating, and unsanitary procedures. (Id. ¶¶ 69, 96, 144.) Plaintiffs contend that defendants devised, recommended, approved, sanctioned, and/or implemented many of these acts of torture, issued and updated the procedures governing the conditions at Guantanamo, and introduced, approved of, supervised, and implemented the procedures by which plaintiffs were force-fed. (Id. ¶¶ 60-62, 69-70.)
Plaintiffs further allege that the brutal acts and conditions that Al-Zahrani and Al-Salami endured for over four years had damaging effects on their physical and psychological heath, effects that defendants intended, knew of, and/or should have anticipated but failed to prevent.
(Id. ¶¶ 97-100; 146-164.) After months of hunger strikes and, for Al-Salami, multiple medical evaluations evidencing depression and suicidal thoughts, Al-Zahrani and Al-Salami were found dead on June 10, 2006. (Id. ¶¶ 101, 146-164, 165.) A final report from the Naval Criminal Investigative Service ("NCIS") issued in 2008 concluded that the deaths were suicides by hanging. (Id. ¶ 4.) The government did not notify the families of Al-Zahrani or Al-Salami of their deaths, nor did they return the bodies to their families in time for proper burial under Islamic law. (Id. ¶¶ 116-117, 174-175.) Moreover, the government performed autopsies on the bodies without seeking the consent of the detainees' families, and when returned, the bodies were damaged and missing certain organs. (Id. ¶¶ 118-19, 176-77.) Al-Zahrani, Sr. and Al-Salami, Sr. also allege that government and military spokespersons, including some defendants, made a number of derisive comments about Al-Zahrani and Al-Salami after their deaths. (Id. ¶¶ 121, 179.)
Based on these claims, plaintiffs claim compensation and punitive damages for physical, psychological, and emotional injuries; loss of earnings and earning capacity; loss of interfamilial relations; and medical expenses. (Id. ¶ 198.)
Plaintiffs filed their complaint against the government, twenty-four named individuals, and one hundred unnamed military, medical, and civilian personnel members on January 7, 2009.*fn1 (Compl. ¶ 6.) That complaint was amended on January 29, 2009, and includes fourteen claims for relief. (Am. Compl. ¶¶ 199-325.) Claims I through IV seek damages under the ATCA against the individual defendants for arbitrary detention, torture, and cruel and inhuman treatment of Al-Zahrani and Al-Salami, as well as violation of various Geneva Conventions. (Id. ¶¶ 199-234.) Claims V and VI are also against the individual defendants and allege that the detention and treatment of Al-Zahrani and Al-Salami constituted cruel and unusual punishment and deprived them of their life and liberty interests in violation of their constitutional rights under the Eighth and Fifth Amendments. (Id. ¶¶ 235-253.) The amended complaint alleges that the individual defendants are liable for these violations in that defendants "participated in, set the conditions, directly and/or indirectly facilitated, ordered, acquiesced, confirmed, ratified, aided and abetted, and/or conspired together" in the detention and treatment of Al-Zahrani and Al-Salami. (Id. ¶¶ 240, 251.) Claims VII though XIV are against the United States under the FTCA for negligence, medical negligence, medical malpractice, intentional infliction of emotional distress, battery, and wrongful death. (Id. ¶¶ 254-325.)
On June 26, 2009, defendants filed three motions that are now before the Court. The individual defendants have moved to dismiss plaintiffs' constitutional claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that this Court lacks subject matter jurisdiction over these claims and that plaintiffs have failed to state a claim upon which relief can be granted. (Mem. of P. & A. in Supp. of the Individual Defs.' Mot. to Dismiss Pls.' Constitutional Claims ["Constitutional Mem."] at 1-2.) The government has also filed a motion to substitute itself for the individual defendants with respect to plaintiffs' claims under the ATCA. The United States contends that the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Westfall Act"), 28 U.S.C. § 2679(b)(1), provides that a claim against the United States under the FTCA is the exclusive remedy for persons seeking damages for any "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." (Mem. of P. & A. in Supp. of United States' Mot. for Substitution for Claims I to IV of the Am. Compl. ["Substitution Mem."] at 6.) Finally, the United States has filed a motion to dismiss all of plaintiffs' claims under the FTCA, including the ATCA claims for which it has sought substitution, on the grounds that this Court lacks subject matter jurisdiction over these claims. (Mem. of P. & A. in Supp. of the United States' Mot. to Dismiss Claims I to IV and VII to XIV of the Am. Compl. ["FTCA Mem."] at 5.)
I. MOTION BY THE INDIVIDUAL DEFENDANTS TO DISMISS CONSTITUTIONAL CLAIMS IN COUNTS V AND VI
The individual defendants have moved to dismiss plaintiffs' constitutional claims under the Fifth and Eighth Amendments on the grounds that: 1) this Court lacks jurisdiction to hear these claims under Section 7 of the Military Commissions Act of 2006 ("MCA"), Pub. L. No. 109-366, 20 Stat. 2600 (2006); 2) special factors preclude the Court from implying a remedy for plaintiffs under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and 3) even if the Court has ...