Jawad v. Gates, Civil Action No. 14–811 (ESH)

• Court: U.S. District Court — District of Columbia
• Writing for the Court: ELLEN SEGAL HUVELLE, United States District Judge
• Citation: 113 F.Supp.3d 251
• Parties: Mohammed Jawad, also known as Saki Bacha, Plaintiff, v. Robert M. Gates, et al., Defendants.
• Docket Number: Civil Action No. 14–811 (ESH)
• Decision Date: 08 July 2015

113 F.Supp.3d 251

Mohammed Jawad, also known as Saki Bacha, Plaintiff,
v.
Robert M. Gates, et al., Defendants.

Civil Action No. 14–811 (ESH)

United States District Court, District of Columbia.

Signed July 8, 2015

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Eric Sebastian Montalvo, Federal Practice Group, Washington, DC, for Plaintiff.

Jean Marie Cunningham, U.S. Department of Justice, Washington, DC, for Defendants.

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MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

Plaintiff Mohammed Jawad has sued the United States and a host of government officials under the Alien Tort Claims Act ("ATCA" or "ATS"), 28 U.S.C. § 1350 ; the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 –2680 ; the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 ; and the Fifth and Eighth Amendments to the United States Constitution. Jawad was a detainee at Forward Operating Base 195 in Afghanistan and subsequently at the United States Naval Base in Guantanamo Bay, Cuba from 2002 until he was released in 2009. The United States has now moved to dismiss plaintiff's ATCA and FTCA claims. The individual plaintiffs have moved to dismiss the TVPA and constitutional claims. Because D.C. Circuit precedent has already addressed plaintiff's claims and rejected them, this Court will grant defendants' motions to dismiss.

BACKGROUND

Plaintiff alleges the following in his amended complaint. Although he does not know his exact age, plaintiff, an Afghan citizen, believes he was born in 1987. (Am. Compl. for Damages [ECF No. 10] ("Compl.") ¶¶ 1, 28.) On December 17, 2002, Afghan forces captured plaintiff after a hand grenade attack badly injured several U.S. soldiers and their Afghan interpreter in a Kabul bazaar. (Id. ¶ 31.) Plaintiff's Afghan captors abused and threatened him, eventually forcing him to sign a confession (written in a language that he could not read) with his thumbprint. (Id. ¶¶ 33–34.) Plaintiff was subsequently transferred into the custody of U.S. forces at Forward Operating Base ("FOB") 195 outside Kabul. (Id. ¶¶ 39–40.) U.S. officials continued to interrogate plaintiff and "deprive[d] him of food, drink, and sleep." (Id. ¶ 41.) Plaintiff was "strip-searched, and then photographed in the nude in front of several on-lookers." (Id. ¶ 43.) "He was blindfolded and hooded, told that if he did not cooperate that he would never see his family again, and made to hold a water bottle which he was told was a bomb that could explode at any moment." (Id. ) Several hours later, "he admitted responsibility for the attack." (Id. ¶ 44.)

On December 18, 2002, plaintiff was transferred from FOB 195 to "the U.S. detention facility [in] Bagram, Afghanistan." (Id. ¶ 48.) At that installation, plaintiff was "subjected to cruel, abusive, and inhumane treatment," including "maltreatment, torture in the form of beatings, hooding, physical and linguistic isolation, sleep deprivation, death threats, forced stress positions, being chained to the wall for prolonged periods, pushed down the stairs, and various other forms of intimidation." (Id. ¶ 50.)

On February 6, 2003, plaintiff was transferred to Guantanamo Bay Naval Base. (Id. ¶ 52.) Prior to his transfer, plaintiff was "intentionally starved for three days and given only sips of water," because detainees "were not permitted to use the toilet while in transit." (Id. ¶ 52 & n.8.) Plaintiff "spent the majority of 2003 in social, physical, and linguistic isolation, with his only human contact being his interrogators." (Id. ¶ 56.) He was "housed with the adult population, rather than in separate facilities for juveniles." (Id. ) On December 25, 2003, he attempted suicide. (Id. ¶ 57.) "By March 2004, Plaintiff was deemed to be of no intelligence value to the U.S.," but "he was still subjected to over 60 interrogations," which included "excessive cold, loud noise, beatings, pepper-spray, and being shackled for prolonged periods." (Id. ¶¶ 58–60.)

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Plaintiff complains in particular about "a sleep deprivation regimen" euphemistically termed the " ‘frequent flyer’ program," which "consisted of repeatedly moving a detainee from one cell to another in quick intervals throughout the night to disrupt sleep cycles, on average every three hours." (Id. ¶¶ 61–62.) "The standard length for the frequent flyer program was two weeks." (Id. ¶ 62.) The program was used both as an "interrogation technique" and as "a form of punishment ... for detainees." (Id. ¶¶ 63–64.) "Defendant Jay Hood assumed command of [the Joint Task Force]—Guantanamo in March 2004, and ordered the use of the frequent flyer program discontinued as an interrogation technique," but it continued to be used as "a method of controlling detainees," and "Plaintiff was subjected to the frequent flyer program from May 7–20, 2004." (Id. ¶¶ 67–68.)

Plaintiff appeared before a Combatant Status Review Tribunal ("CSRT") in November 2004. (Id. ¶ 79.) The CSRT determined that plaintiff was an enemy combatant, and that status determination was reaffirmed at Administrative Review Board proceedings on December 8, 2005 and November 8, 2006. (Id. ¶¶ 80–81.) On October 9, 2007, "Plaintiff was charged under the Military Commissions Act of 2006 with three [counts] each of ‘attempted murder in violation of the law of war’ and ‘intentionally causing serious bodily injury.’ " (Id. ¶ 84.) "[P]rosecutors in the military commission expressed their intention to offer [plaintiff's] statement/confession ... into evidence ... Plaintiff's defense counsel filed a motion to suppress the statement as the product of torture." (Id. ¶ 85.) The motion was granted. (Id. ) On appeal, the U.S. Court of Military Commission Review deemed the statement inadmissible "because the confessions had been acquired through the use of death threats." (Id. ¶ 87.) The Commission also found that "[t]he infliction of the ‘frequent flyer’ technique upon the Accused ... had no legitimate interrogation purpose' and that plaintiff had been "beaten, kicked, and pepper sprayed for not complying with a guard's instruction" on or about June 2, 2008. (Id. ¶ 88.) The Commission concluded that subjecting plaintiff to the frequent flyer program constituted "abusive conduct and cruel and inhuman treatment." (Id. )

In 2005, a writ of habeas corpus was filed on plaintiff's behalf. (Id. ¶ 89.) On July 24, 2009, "the Justice Department filed a notice informing the court that it was dropping its opposition to the habeas petition and no longer considered Plaintiff legally detainable." (Id. ¶ 92.) This Court granted plaintiff's habeas petition on July 30, 2009, "and Plaintiff was repatriated." (Id. ¶ 93.)

Plaintiff has now filed suit against the United States and individual federal defendants. In his first cause of action, plaintiff alleges that "Defendants tortured and inhumanely treated Plaintiff in violation of the law of ... nations," which "constitute[d] a violation of international law under the [ATCA] and the [FTCA]." (Id. ¶ 95.) Plaintiff alleges that defendants "held Plaintiff in solitary confinement; deprived Plaintiff of food and drink; subjected Plaintiff to sleep deprivation; threatened Plaintiff; beat, kicked, and pepper-sprayed Plaintiff; exposed Plaintiff to extreme temperatures; sexually humiliated Plaintiff; [and] deprived Plaintiff of adequate medical care." (Id. ¶ 98.) Plaintiff also alleges that the " ‘frequent flyer’ program ... constituted abusive conduct and cruel and inhumane treatment." (Id. ¶ 99.) Plaintiff contends that "Defendants tortured Plaintiff under color of official authority," and argues that this torture "violated the laws of nations, as defined by customary international law, multilateral

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treaties, and other international instruments." (Id. ¶¶ 96, 105.)

In the second cause of action, plaintiff claims that defendants' actions constituted "a violation of international law under the [ATCA] and the [FTCA], in that Defendants tortured and inhumanely treated Plaintiff in violation of the Third and Fourth Geneva Conventions." (Id. ¶ 107.) He contends that the actions described above "violate the Geneva Convention's prohibition on disciplinary punishment that are inhumane, brutal, or dangerous to the health of prisoners of war." (Id. ¶ 116.)

In the third cause of action, plaintiff contends that his treatment violated Article 6 and Article 7 of the Optional Protocol on the Involvement of Child Soldiers in Armed Conflict, which he again argues constituted a violation of international law under the ATCA and the FTCA. (Id. ¶ 119.) He argues that defendants' failure to "assist in Plaintiff's physical recovery, psychological recovery, or prepare Plaintiff for social reintegration," violated the Protocol "through his release." (Id. ¶ 122.)

The fourth cause of action alleges unlawful torture in violation of the TVPA, also in violation of international law under the ATCA and the FTCA. (Id. ¶ 125.)

In the fifth and sixth causes of action, plaintiff alleges that defendants are liable for violating his Fifth and Eighth Amendment rights. (Id. ¶¶ 136–137, 146–147 (citing Bivens v. Six Unknown Named Federal Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619...