Shimari v. Caci Premier Technology, Inc., 1:08cv827 (GBL).

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation657 F.Supp.2d 700
Docket NumberNo. 1:08cv827 (GBL).,1:08cv827 (GBL).
PartiesSuhail Najim Abdullah AL SHIMARI, et al., Plaintiffs, v. CACI PREMIER TECHNOLOGY, INC. and CACI International, Inc., Defendants.
Decision Date19 March 2009
657 F.Supp.2d 700
Suhail Najim Abdullah AL SHIMARI, et al., Plaintiffs,
v.
CACI PREMIER TECHNOLOGY, INC. and CACI International, Inc., Defendants.
No. 1:08cv827 (GBL).
United States District Court, E.D. Virginia, Alexandria Division.
March 19, 2009.

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Susan L. Burke, Burke Oneil LLC, Washington, DC, for Plaintiffs.

Joseph William Koegel, Jr., Steptoe & Johnson, Washington, DC, for Defendants.

Memorandum Order

GERALD BRUCE LEE, District Judge.


THIS MATTER is before the Court on Defendants CACI Premier Technology, Inc. and CACI International, Inc.'s (collectively, "CACI") Motion to Dismiss Plaintiffs' Amended Complaint. This case concerns the civil tort claims of four Iraqi citizens alleging that United States government contractor interrogators tortured them during their detention at Abu Ghraib prison in Iraq. There are seven issues before the Court. The first issue is whether alien civil tort claims against government contractor interrogators present a nonjusticiable political question. The second issue is whether government contractor interrogators are entitled to derivative absolute immunity where the lack of discovery prevents the Court from reviewing the government contract. The third issue is whether wartime interrogation claims involve "combatant activities" within the meaning of the combatant activities exception to the Federal Tort Claims Act ("FTCA") and are therefore preempted. The fourth issue is whether the Alien Tort Statute ("ATS") provides a basis for this Court to exercise original jurisdiction over tort claims against government contractor civilian interrogators. The fifth issue is whether Plaintiffs allege sufficient facts to support their claims against Defendants under the theory of respondeat superior. The sixth issue is whether Plaintiffs sufficiently allege conspiratorial liability where they fail to specifically identify the individuals involved in the conspiracy. The seventh issue is whether Plaintiffs allege sufficient facts to show that Defendants' employees caused Plaintiffs' injuries.

The Court denies Defendants' Motion to Dismiss on all grounds except the Court grants the Motion to the extent that Plaintiffs' claims rely upon ATS jurisdiction. The Court holds that Plaintiffs' claims are justiciable because Defendants are private corporations and civil tort claims against private actors for damages do not interfere with the separation of powers between the executive branch and the judiciary. Second, the Court finds that Defendants are not entitled to immunity at the dismissal stage because discovery is necessary to determine the extent of Defendants' discretion in interaction with detainees and to weigh the costs and benefits of granting Defendants immunity in this case. Third,

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the Court holds that Plaintiffs' claims are not preempted by the combatant activities exception at this stage because the parties must conduct discovery to determine whether the interrogations here constitute "combatant activities" within the meaning of the exception. Fourth, the Court dismisses Plaintiffs' claims to the extent that they rely upon ATS jurisdiction because tort claims against government contractor interrogators are too modern and too novel to satisfy the Sosa requirements for ATS jurisdiction. Fifth, the Court holds that Plaintiffs sufficiently allege facts supporting vicarious liability because the Amended Complaint states that Defendants' employees engaged in foreseeable tortious conduct when conducting the interrogations. Sixth, the Court holds that Plaintiffs sufficiently allege conspiratorial liability because facts alleging the use of code words and efforts to conceal abusive treatment plausibly suggest conspiratorial activity. Seventh, the Court holds that the Amended Complaint sufficiently alleges the direct involvement of Defendants' employees in causing Plaintiffs' injuries because Plaintiffs paint to specific employees who played a direct role in supervising and participating in the alleged conduct. These issues are addressed in turn below.

I. BACKGROUND1

September 11, 2001, was one of the worst days in American history. At nine o'clock in the morning, as many Americans were either on their way to or arriving at their jobs, the al Qaeda terrorist network hijacked commercial airliners to attack prominent targets in the United States. Approximately 3000 people were killed in the attacks. One week later, the United States Congress passed the Authorization for Use of Military Force Joint Resolution, which authorized the President to use "all necessary and appropriate force" against those associated with the attacks.

On March 20, 2003, a multinational coalition force, led and composed almost entirely of troops from the United States and Great Britain, invaded Iraq. The invasion, initially premised on the threat of and in search of weapons of mass destruction ("WMDs"), led to the rapid defeat of the Iraqi military and the capture and execution of Saddam Hussein.2 Throughout the occupation, coalition forces met with fierce hostility. Conventional and asymmetric warfare tactics employed by insurgents, including the much-publicized improvised explosive device ("IED"), led to the deaths of over 4000 coalition troops and counting.

In addition to the hunt for WMDs, the invasion also sought the liberation of the Iraqi people from Saddam Hussein's oppressive regime, infamous for imprisoning political dissidents. One singularly imposing locus of this legendary oppression was the Abu Ghraib prison, located near Baghdad. During Saddam Hussein's regime Abu Ghraib was one of the world's most notorious prisons. Some detainees were held without charge for decades and subjected to testing in experimental chemical and biological weapons programs. As many as 40 detainees were squeezed into cells measuring approximately 170 square feet each. In this 280-acre city within a city, torture was the rule and not the exception. Executions occurred weekly, and vile living conditions made life miserable

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for the tens of thousands who lived and died there.

Just before the 2003 coalition invasion, the then-existing Iraqi regime, aiming to create havoc for coalition forces, released the detainees held at Abu Ghraib prison and other facilities. After the invasion the United States military took over Abu Ghraib. The military used it to detain three types of prisoners: (1) common criminals, (2) security detainees accused or suspected of committing offenses against the Coalition Provisional Authority, and (3) "high value" detainees' who might possess useful intelligence (insurgency leaders, for example). As it had in the past, the post-invasion Abu Ghraib prison population included women and juveniles. A U.S. military police brigade and a military intelligence brigade were assigned to the prison. The intelligence operation at the prison suffered from a severe shortage of military personnel, prompting the U.S. government to contract with private corporations to provide civilian interrogators and interpreters. These contractors included L-3 Services (formerly Titan Corporation) and CACI International.

Abu Ghraib prison again received negative publicity, this time in late April 2004, when CBS aired an extended report on the modern Abu Ghraib on 60 Minutes II. The broadcast showed sickening photographic evidence of U.S. soldiers abusing and humiliating Iraqi detainees at Abu Ghraib. It showed photographs of naked detainees stacked in a pyramid; a photograph of two naked and hooded detainees, positioned as though one was performing oral sex on the other; and a photograph of a naked male detainee with a female U.S. soldier pointing to his genitalia and giving a thumbs-up sign. Another photograph showed a hooded detainee standing on a narrow box with electrical wires attached to his hands. A final photograph showed a dead detainee who had been badly beaten. U.S. soldiers were in several of the photographs, laughing, posing, and gesturing. The abuses stunned the U.S. military, public officials in general, and the public at large.

This case arises out of the detention, interrogation and alleged abuse of four Iraqi citizens detained as suspected enemy combatants at Abu Ghraib between September 22, 2003, and November 1, 2003, a period corresponding to the Abu Ghraib prison abuse scandal. Plaintiffs are Suhail Najim Abdullah Al Shimari, Taha Yaseen Arraq Rashid, Sa'ad Hamza Hantoosh AlZuba'e, and Salah Hasan Usaif Jasim AlEjaili. Between 2004 and 2008, all four Plaintiffs were released from Abu Ghraib without ever being charged with any crime. (Am. Compl. ¶¶ 25, 44, 53, and 63.)

On June 30, 2008, Plaintiffs filed this action against Defendants CACI International, Inc., a Delaware corporation with its headquarters in Arlington, Virginia, and CACI Premier Technology, Inc., its wholly-owned subsidiary located in Arlington, Virginia. Defendants are corporations that provided interrogation services at Abu Ghraib during the period in question. Beginning in September 2003, Defendants provided civilian interrogators for the U.S. Army's military intelligence brigade assigned to the Abu Ghraib prison. Plaintiffs allege that Defendants committed various acts of abuse, including food deprivation, beatings, electric shocks, sensory deprivation, extreme temperatures, death threats, oxygen deprivation, shooting prisoners in the head with taser guns, breaking bones, and mock executions. Plaintiffs assert that jurisdiction is proper under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity), 28 U.S.C. § 1350 (Alien Tort Statute) and 28 U.S.C. § 1367 (supplemental jurisdiction). Plaintiffs allege the following twenty (20) counts:

1) Torture;

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2) Civil conspiracy to commit torture;

3) Aiding and abetting torture;

4) Cruel, inhuman or degrading treatment;

5) Conspiracy...

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    ...the ATS claims against CACI, but permitting the common-law tort claims to proceed. See Al Shimari v. CACI Premier Tech., Inc., 657 F.Supp.2d 700 (E.D.Va.2009). In so ruling, the court acknowledged its considerable reservations that the action implicated a political question, in that CACI, a......
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    ...Apr. 19, 2010), appeal docketed, No. 10-1543 (4th Cir.2010) (adopting Johnson definition); Al Shimari v. CACI Premier Tech., Inc., 657 F.Supp.2d 700, 721 (E.D.Va.2009), appeal docketed, No. 09-1335 (4th Cir.2010) (adopting Skeels definition). Regardless of the exact definition, "[t]he ratio......
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    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 21, 2011
    ...here constitute ‘combatant activities' within the meaning of the exception.” Al Shimari v. CACI Premier Technology, Inc., 657 F.Supp.2d 700, 731 (E.D.Va.2009). On the contractor's appeal, we reverse and remand with instructions to dismiss this case. We conclude that the plaintiffs' state la......
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    • July 29, 2010
    ...official policies and directives that were established by the executive branch and are consequently nonreviewable by the judiciary." 657 F.Supp.2d 700, 708 (E.D.Va.2009). There, as here, plaintiffs alleged that defendant contractors conspired together without orders from or approval by the ......
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