649 F.3d 762 (D.C. Cir. 2011), 07-5178, Ali v. Rumsfeld

Docket Nº:07-5178, 07-5185, 07-5186, 07-5187.
Citation:649 F.3d 762
Opinion Judge:KAREN LECRAFT HENDERSON, Circuit Judge:
Party Name:Arkan Mohammed ALI et al., Appellants v. Donald H. RUMSFELD, Individually, et al., Appellees.
Attorney:Cecillia D. Wang argued the cause for the appellants. Lucas Guttentag, Jennifer Chang Newell and Kate Desormeau, Steven R. Shapiro, Paul Hoffman, James P. Cullen, Bill Lann Lee, Arthur B. Spitzer, David Rudovsky, and Erwin Chemerinsky were on the brief. Stephen A. Saltzburg was on brief for amici...
Judge Panel:Before: SENTELLE, Chief Judge, HENDERSON, Circuit Judge, and EDWARDS, Senior Circuit Judge. EDWARDS, Senior Circuit Judge, dissenting:
Case Date:June 21, 2011
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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649 F.3d 762 (D.C. Cir. 2011)

Arkan Mohammed ALI et al., Appellants

v.

Donald H. RUMSFELD, Individually, et al., Appellees.

Nos. 07-5178, 07-5185, 07-5186, 07-5187.

United States Court of Appeals, District of Columbia Circuit.

June 21, 2011

Argued Jan. 13, 2011.

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the District of Columbia (No. 05cv01378).

Cecillia D. Wang argued the cause for the appellants. Lucas Guttentag, Jennifer Chang Newell and Kate Desormeau, Steven R. Shapiro, Paul Hoffman, James P. Cullen, Bill Lann Lee, Arthur B. Spitzer, David Rudovsky, and Erwin Chemerinsky were on the brief.

Stephen A. Saltzburg was on brief for amici curiae National Institute of Military Justice et al. in support of the appellants.

William J. Aceves was on brief for amici curiae Human Rights & Torture Treatment Organizations in support of the appellants.

Robert M. Loeb, Attorney, United States Department of Justice, argued the cause for the appellees. Barbara L. Herwig, Michael L. Martinez, Mark E. Nagle, Stephen L. Braga and Ryan E. Bull, Attorneys, were on brief.

Before: SENTELLE, Chief Judge, HENDERSON, Circuit Judge, and EDWARDS, Senior Circuit Judge.

OPINION

KAREN LECRAFT HENDERSON, Circuit Judge:

Four Afghan and five Iraqi citizens captured and subsequently held in Afghanistan and Iraq, respectively, by the United States military sued Donald Rumsfeld, former Secretary of the United States Department of Defense, and three high-ranking Army officers 1 (collectively, defendants)

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under the Fifth and Eighth Amendments to the United States Constitution, the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Third and Fourth Geneva Conventions, 6 U.S.T. 3316 and 6 U.S.T. 3516, seeking damages and declaratory relief as the result of their treatment while in U.S. custody. The district court granted the defendants' motion to dismiss all six claims and the plaintiffs appeal the dismissal of their constitutional and ATS claims only. For the reasons set forth below, we affirm the district court's judgment.

I.

The amended complaint alleges the following facts. Arkan Mohammed Ali is an Iraqi citizen who was held at Abu Ghraib and other military facilities in Iraq for almost one year, from approximately July 2003 to June 2004. Am. Compl. ¶ 17. He alleges he was beaten to the point of unconsciousness; stabbed and mutilated; stripped naked, hooded and confined in a wooden phone booth-sized box; subjected to prolonged sleep deprivation enforced by beatings; deprived of adequate food and water and subjected to mock execution and death threats. Id. Thahe Mohammed Sabar is an Iraqi citizen who was held at Abu Ghraib and other military facilities in Iraq for about six months from approximately July 2003 to January 2004. Id. ¶ 18. He alleges he was severely beaten, sexually assaulted and humiliated, deprived of adequate food and water, intentionally exposed to dangerously high temperatures for prolonged periods and subjected to mock executions and death threats. Id. Sherzad Kamal Khalid is an Iraqi citizen who was held at Abu Ghraib and other military facilities in Iraq for about two months from approximately July 2003 through September 2003. Id. ¶ 19. He alleges he was frequently and severely beaten, sexually assaulted and threatened with anal rape, deprived of adequate food and water, intentionally exposed to dangerously high temperatures and subjected to " mock executions, death threats ... and prolonged sleep deprivation enforced by beatings." Id. Ali H. is an Iraqi citizen who was held at Abu Ghraib and other military facilities in Iraq for about four weeks from August to September 2003. Id. ¶ 20. He alleges the U.S. military intentionally withheld and delayed necessary medical treatment, intentionally inflicted " pain after surgery by dragging him from one location to another and forcefully ripping away the surgical dressing," intentionally exposed him to infection by leaving his surgical wound half-bandaged and deprived him of adequate food and water. Id. Najeeb Abbas Ahmed is an Iraqi citizen who was held at Abu Ghraib and other military facilities in Iraq for two separate periods, the first from approximately May 2003 to July 2003 and the second from approximately July 2003 through December 2003. Id. ¶ 21. He alleges U.S. soldiers held a gun to his head, threatened him with death and with life imprisonment at Guantanamo Bay, sexually assaulted him, stepped and sat on his body while he was in extreme restraints, humiliated him by chanting racial epithets while videotaping and photographing him, held him in an outdoor cage at temperatures exceeding approximately 120 degrees Fahrenheit, intentionally deprived him of sleep for prolonged periods, confiscated medication for his high blood pressure and heart disease and intentionally deprived him of medical care after he " suffered more than one heart attack and a possible stroke in detention." Id. Mehboob Ahmad is a citizen of Afghanistan who was held by the U.S. military at the detention facility located at Bagram Air Force Base (Bagram) and at other military

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facilities in Afghanistan for approximately five months from June to November 2003. Id. ¶ 22. He alleges U.S. soldiers placed him in restraints and positions calculated to cause pain, intimidated him with a vicious dog, questioned him while he was naked, threatened his family and subjected him to sensory deprivation. Id. Said Nabi Siddiqi is a citizen of Afghanistan who was also held at military facilities in Afghanistan, including Bagram and the Kandahar detention facility, from July to August 2003. Id. ¶ 23. He alleges he was beaten, placed in restraints and positions calculated to cause pain, subjected to " verbal abuse of a sexual nature," humiliated by being photographed naked, denied water, intentionally deprived of necessary medication, intentionally exposed to dangerous temperatures for prolonged periods and deprived of sleep. Id. Mohammed Karim Shirullah is a citizen of Afghanistan who was held at Bagram and other military facilities in Afghanistan for approximately six months, from December 2003 to June 2004. Id. ¶ 24. He alleges he was beaten, placed in restraints and positions calculated to cause pain, interrogated and photographed while naked, subjected to sensory deprivation and placed in solitary confinement for an extended period, denied medical care for injuries caused by abuse, intentionally exposed to extreme temperatures for prolonged periods, doused with cold water and deprived of sleep. Id. Haji Abdul Rahman is a citizen of Afghanistan who was held at Bagram and other military facilities in Afghanistan for approximately five months, from December 2003 to May 2004. Id. ¶ 25. He alleges he was questioned and photographed while naked, subjected to complete sensory deprivation for twenty-four hours, placed in solitary confinement and deprived of sleep. Id.

The plaintiffs originally filed separate actions in four different jurisdictions— the District of Connecticut, the Northern District of Illinois, the District of South Carolina and the Southern District of Texas. By an order dated June 17, 2005, the Judicial Panel on Multidistrict Litigation transferred the cases to the district court of the District of Columbia for coordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. The plaintiffs filed an amended complaint on January 5, 2006. They allege the defendants:

(1) formulated or implemented policies and practices that caused the torture and other cruel, inhuman or degrading treatment of Plaintiffs; and (2) had effective command and control of U.S. military personnel in Iraq and/or Afghanistan and knew and had reason to know of torture and abuse by their subordinates and failed to promptly and effectively prohibit, prevent and punish unlawful conduct.

Id. ¶ 26. The plaintiffs asserted six causes of action in the district court; five asserted claims for violations of (1) the Due Process Clause of the Fifth Amendment, (2) the Fifth Amendment and Eighth Amendment prohibitions against cruel and unusual punishment, (3) the law of nations prohibition against torture, (4) the law of nations prohibition against cruel, inhuman or degrading treatment and (5) the Geneva Conventions. Am. Compl. ¶ ¶ 235-59. The sixth cause of action sought a declaratory judgment that defendant Rumsfeld violated " the law of nations, binding treaties and the U.S. Constitution." Id. ¶ ¶ 260-63. In March 2006, the defendants moved to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (FRCP) for lack of subject matter jurisdiction and failure to state claims upon which relief may be

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granted.2

On March 27, 2007, the district court dismissed the plaintiffs' amended complaint pursuant to FRCP 12(b)(1) and 12(b)(6) " and on the ground that the defendants are entitled to qualified immunity." In re Iraq & Afghanistan Detainees Litig. ( Detainees Litig. ), 479 F.Supp.2d 85, 119 (D.D.C.2007). Regarding the constitutional claims brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),3 the district court held the Fifth and Eighth Amendments do not apply to " nonresident aliens who were injured extraterritorially while detained by the military in foreign countries where the United States is engaged in wars." 4 Detainees Litig., 479 F.Supp.2d at 95. The court relied on the United States Supreme Court's holdings in Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), and United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), and Zadvydas v....

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