479 F.Supp.2d 85 (2007)
In re: IRAQ AND AFGHANISTAN DETAINEES LITIGATION This document relates to: Ali v. Pappas Ali v. Rumsfeld Ali v. Karpinski Ali v. Sanchez.
Nos. 06-0145 (TFH), CIV. 05-1377(TFH) to CIV. 05-1380(TFH).
United States District Court, District of Columbia.
March 27, 2007.
86*86 87*87 Lucas Guttentag, Cecillia D. Wang, Jennifer C. Chang, Monica M. Ramirez, American Civil Liberties Union Foundation Immigrants' Rights Project, San Francisco, CA, Steven R. Shapiro, Amrit Singh, Omar C. Jadwat, Steven Watt, American Civil Liberties Union Foundation, New York, NY, Michael H. Posner, Hina Shamsi, Priti N. Patel, Law & Security Program, Human Rights First, New York, NY, Arthur B. Spitzer, American Civil Liberties Union, Washington, DC, Bill Lann Lee, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Oakland, CA, Paul L. Hoffman, Schonbrun Desimone Seplow Harris & Hoffman, Venice, CA, Chimene I. Keitner, Nirej S. Sekhon, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, CA, David Rudovsky, Kairys, Rudovsky, Epstein & Messing LLP, Philadelphia, PA, Erwin Chemerinsky, Duke University School of Law, Durham, NC, Deborah N. Pearlstein, Woodrow Wilson School of Public and International Affairs, Princeton, NJ, for Plaintiffs.
Marcus Meeks, Department of Justice, Washington, DC, for Defendant Rumsfeld; Stephen L. Braga, Mark Thomas Stancil, Ryan E. Bull, Joshua Klein, Baker Botts L.L.P., Washington, DC, for Defendant Sanchez, Michael L. Martinez, Aryeh S. Portnoy, David E. Bell, Matthew F. Scarlato, Rhonda M. Galaz, Crowell & Moring, LLP, Washington, DC, for Defendant Karpinski, Mark E. Nagle, Tracy P. Varghese, Eileen Moorhead, Troutman Sanders, LLP, Washington, DC, for Defendant Pappas.

88*88 Sidney Samuel Rosdeitcher, Douglas M. Pravda, Carmen K. Cheung, Judd S. Harvey, Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY, James J. Silk, Yale Law School, New Haven, CT, for Amici Curiae.
MEMORANDUM OPINION
THOMAS F. HOGAN, Chief Judge.
This is a lamentable case in which the Court has been called upon to determine whether the plaintiffs may pursue monetary damages and declaratory relief against the former Secretary of Defense and other high-ranking military officers who the plaintiffs allege are liable for torture and abuse inflicted on them while detained by the United States military during ongoing hostilities in Iraq and Afghanistan. Pending before the Court are the defendants' motions to dismiss the plaintiffs' Consolidated Amended Complaint for Declaratory Relief and Damages (the "Amended Complaint"). Despite the horrifying torture allegations, after a searching and careful review of the relevant case law, and thorough consideration of the' parties' legal briefs and the arguments presented during the hearing held on December 8, 2006, the Court has determined that the motions to dismiss filed by the defendants, Colonel Janis Karpinski, Lieutenant General Ricardo Sanchez, and Colonel Thomas Pappas shall be granted in part and denied in part as moot, and the motion to dismiss filed by former Secretary of Defense Donald Rumsfeld and the United States shall be granted in its entirety, thereby resolving all claims pending before the Court.
BACKGROUND
Nine plaintiffs filed these lawsuits claiming they are innocent civilians[1] who were tortured and abused while detained by the United States military at various locations in Iraq and Afghanistan. Am. Compl. ¶¶ 16-25; Pls.' Consol. Opp'n to Defs.' Mots. to Dismiss 4 ("Pls.'s Opp'n Br. ___"). Plaintiffs Arkan Mohammed Ali, Thahe Mohammed Sabar, Sherzad Kamal Khalid, Ali H., and Najeeb Abbas Ahmed are Iraqi citizens (collectively referred to as the "Iraqi plaintiffs") who were detained at Abu Ghraib prison or other military facilities in Iraq. Am. Compl. ¶¶ 16-25. Plaintiffs Mehboob Ahmad, Said Nabi Siddiqi, Mohammed Karim Shirullah, and Haji Abdul Rahman are Afghani citizens (collectively referred to as the "Afghani plaintiffs") who were detained at military facilities in Afghanistan. Am. Compl. ¶¶ 16-25; Pls.' Opp'n Br. 4. The plaintiffs were detained for varying durations ranging from one month to one year, and several plaintiffs were detained on multiple occasions. Am. Compl. ¶¶ 16-25. Each plaintiff ultimately was released from custody without ever being charged with a crime. Am. Compl. ¶ 1.
The plaintiffs assert that they were tortured and otherwise subjected to cruel, inhuman and degrading acts during their detentions. Pls.' Opp'n Br. 4. To be more explicit, Mehboob Ahmad alleges that a chain was used to hang him upside-down from the ceiling, in which position he remained for several hours while "military personnel slapped and pushed him in order to cause his

body to swing . . . resulting in 89*89 his loss of consciousness, then, after providing him with medical attention and reviving him, again hanging him upside-down from the ceiling with a chain for several more hours, again leading to loss of consciousness." Am. Compl. ¶ 174. Mr. Ahmad also was manacled to a chain used to pull him upward and drop him to the ground, repeatedly pushed and kicked, subjected to electrical shocks until he lost consciousness, stripped and anally probed, and forced to hang by his arms while hooded and an aggressive dog "grab[bed] and pull[ed] at his arms and legs." Am. Compl. ¶ 174. Said Siddiqi was forced to remain in a push-up position while doused with water and then beaten if he failed to sustain the position, stripped naked and photographed, anally probed, deprived of water for prolonged periods, and detained in a room flooded with water. Am. Compl. ¶ 178. Mohammad Shirullah was assaulted in the head "so fiercely and repeatedly" that he ruptured an eardrum, and was forced to remain in painful physical positions for prolonged periods, such as sitting in a space with no back support while his wrists and legs were tied and his eyes and ears were covered. Am. Compl. ¶ 182. Haji Rahman alleges that interrogators used a chain to force his arms upward While they were handcuffed behind his back and he was in a kneeling position with blackout goggles on, loud noises and bright lights were used to deprive him of sleep, he was anally probed multiple times, stripped naked in front of other people and photographed, and forced to wear blackout goggles and sound-deadening headphones for prolonged periods to induce sensory deprivation. Am. Compl. ¶ 186. Arkan Ali was beaten to unconsciousness, forcibly restrained and stabbed with a knife in his forearm, burned or shocked, locked for days in a phone-booth-sized wood box while stripped naked and hooded, urinated on, shackled with his hands behind his head while his head was stepped on and the shackles pulled, denied sleep and then dragged face down and beaten for falling asleep, chained to a metal container while kicked, spit on, choked, and threatened with a guard dog, threatened with death by having a gun placed to his head and a round chambered, mock executed by threat of being run down by a military vehicle, threatened with slaughter by sword, and denied food and water. Am. Compl. ¶ 190. Thahe Sabar was severely beaten while handcuffed, hit in the genitals, forced to "run through a gauntlet of 10 to 20 uniformed soldiers who were screaming at [him] and beating [him] with wooden batons," electrically shocked, sexually assaulted by soldiers who inserted their fingers in his anus and fondled his buttocks and penis, placed before a mock firing squad with simulated gunfire, placed in a cage of live lions, hooded and shackled in such a way as to cause breathing difficulties, bleeding and loss of consciousness, deprived of food or fed spoiled food that caused vomiting, denied access to toilets while shackled so he soiled his pants, and subjected to the desecration of the Quran. Am. Compl. ¶ 195. Sherzad Khalid was randomly kicked and punched while shackled and hooded, subjected to simulated anal rape by having a water bottle pressed against the seat of his pants, threatened with sodomy by use of a wooden pole, restrained and hooded in such as way as to impair his breathing and vision, shackled to a fence with his hands behind him in extreme temperatures without food or water, put in a cage of live lions, and placed before a mock firing squad. Am. Compl. ¶ 200. Ali H. was shot when arrested and had the bullets removed without anesthesia, shackled for prolonged periods with his hands behind his back and feet spread, denied medical treatment after sustaining a life-threatening shrapnel wound during a mortar attack while detained, dragged to and from locations after abdominal surgery, refused bandage changes thereby

leading to infection, and forced to sleep unsheltered outdoors in extreme temperatures 90*90 while injured. Am. Compl. ¶ 205. Najeeb Ahmed was subjected to:
[A] scheme to humiliate, sexually assault, and physically injure Plaintiff Ahmed, by throwing him to the ground, stepping on his neck and legs, sitting on his back and feet, tying him with extremely tight restraints on his wrists, then calling a group of 10 to 12 U.S. soldiers to come into the room. The soldiers taped toy animals to Plaintiff Ahmed's head and shoulder and chanted racial epithets at him. A soldier kicked the soles of [his] feet. A soldier put a gun to his head. Another approached him in a menacing way and then spat in his face. A soldier stepped on his head. When Plaintiff Ahmed begged for water because he was sweating and suffering from chest pains, a solder approached him, exposed his penis, told Plaintiff Ahmed to drink, and then unzipped Plaintiff Ahmed's pants. Soldiers shone a bright beam of light in Plaintiff Ahmed's face. During all these proceedings, soldiers videotaped and photographed Plaintiff Ahmed. . . .
Am. Compl. ¶ 209. These are only some of the many examples of abuse allegedly inflicted on the plaintiffs, as described in their Amended Complaint. Each plaintiff avers that he suffered various injuries resulting from the torture and abuse, both physical and psychological. Am. Compl. ¶¶ 175, 179, 183, 187, 191, 196, 201, 206, 210.
The Iraqi plaintiffs filed lawsuits against former Secretary of Defense Donald Rumsfeld, Colonel Thomas Pappas, who was Commander of the 105th Military Intelligence Brigade, Lieutenant General Ricardo Sanchez, who was Commander of the Coalition Joint Task Force-7, and Colonel Janis Karpinski, who was Commander of the 800th Military Police Brigade.[2] Pls.' Opp'n Br. 3. The Afghani plaintiffs filed a lawsuit against Rumsfeld alone. Id. All claims lodged against Rumsfeld seek to impose liability both individually and in his official capacity, whereas the claims against the other defendants seek to impose only individual liability. Id.
The plaintiffs originally filed their lawsuits in four different jurisdictions in the United States: the District of Connecticut, the Northern District of Illinois, the District of South Carolina, and the Southern District of Texas. By an order of the Judicial Panel on Multidistrict Litigation dated June 17, 2005, the cases were transferred to this Court for coordinated and consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. On January 5, 2006, the plaintiffs filed their Amended Complaint. Two months later, each of the four defendants filed a separate motion to dismiss the Amended Complaint. In response, the plaintiffs filed a consolidated opposition on May 19, 2006, to which the defendants replied on July 21, 2006. The parties presented oral arguments in support of their respective positions on December 8, 2006. The Court also authorized the filing of briefs amici curiae by concerned retired military officers and military law and history scholars, as well as J. Herman Burgers and Theo van Boven. Both briefs filed by amici curiae were submitted in support of the plaintiffs' opposition to the motions to dismiss.[3]

91*91 The plaintiffs advance six causes of action, five of which are premised on tort liability for violations of (1) the Fifth Amendment right to due process, (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 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365 ("Geneva Convention IV").[4] Am. Compl. ¶¶ 235-263. The plaintiffs' sixth cause of action seeks declaratory relief for violations of the law of nations, Geneva Convention IV, and the United States Constitution. Id. at ¶¶ 260-63. With regard to the constitutional violations; the plaintiffs argue that the Court should infer causes of action for tort liability pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Am. Compl. 238, 243; Pls.' Opp'n Br. 35-58. The remaining tort claims involving violations of the law of nations and Geneva Convention IV are asserted pursuant to the Alien Tort Statute, 28 U.S.C. § 1350, as well as directly under Geneva Convention IV. Pls.' Opp'n Br. 4. The plaintiffs assert that the defendants are liable for the plaintiffs' injuries because the defendants "issued orders and authorizations that caused the widespread torture and — wholly independent of those orders — failed in their legal duty to stop and prevent the torture and abuse of detainees they knew or had reason to know were being committed by subordinates under their command." Id. at 1. According to the plaintiffs, "[e]ach Defendant had command and control over some or all of the military personnel who tortured and abused Plaintiffs."[5] Id. at 6.
The defendants seek dismissal of the plaintiffs' Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state claims upon which, relief may be granted. Pappas' Mot. Dismiss 1; Rumsfeld's Mot. Dismiss 1; Karpinski's Mot. Dismiss 1; Sanchez's Mot. Dismiss 1. The defendants 92*92 mount a multi-pronged attack, arguing that dismissal is warranted on the grounds that special factors counsel against recognizing a Bivensremedy for the alleged constitutional violations, the defendants are entitled to qualified immunity from liability for the alleged constitutional violations, the defendants are entitled to absolute immunity under the so-called Westfall Act for alleged violations of the law of nations and Geneva Convention IV, and Geneva Convention IV does not confer judicially enforceable rights on the plaintiffs. Pappas' Mem. Supp. Mot. Dismiss 13-40; Rumsfeld's Mem. Supp. Mot. Dismiss 3-33; Karpinski's Mem. Supp. Mot. Dismiss 10-34, 45; Sanchez's Mem. Supp. Mot. Dismiss 10-36. In addition to these challenges, which were uniformly raised by each defendant, Karpinski and Sanchez also argue separately that the plaintiffs' claims raise nonjusticiable political questions. Karpinski's Mem. Supp. Mot. Dismiss 34-44; Sanchez's Mem. Supp. Mot. Dismiss 5-10. Rumsfeld further argues that the plaintiffs lack standing to seek declaratory relief because they failed to show that they face a real and imminent threat of detention in the future. Rumsfeld's Mem. Supp. Mot. Dismiss 36-38. Finally, Colonel Pappas argues that theBivens tort claims against him should be dismissed because the plaintiffs failed to connect him to the alleged constitutional violations and all claims should be dismissed because the United States District Court for the District of Connecticut lacks personal jurisdiction over him. Pappas' Mem. Supp. Mot. Dismiss 41-43.

LEGAL STANDARDS
When adjudicating the defendants' motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim, the Court assumes the truth of the facts alleged in the plaintiffs' complaint and construes in the plaintiffs' favor all reasonable inferences drawn from those alleged facts. Scandinavian Satellite Sys., AS v. Prime TV Ltd., 291 F.3d 839, 844 (D.C.Cir.2002); Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C.Cir.1998); E.E.O.C. v. St. Francis Xavier Parochial School, 117 F.3d 621, 625 (D.C.Cir.1997); Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987). As the Supreme Court has explained:
When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The liberal construction afforded the plaintiffs' complaint does not, however, require the Court to give credence to asserted inferences that lack factual support or legal conclusions proffered in the guise of factual allegations. Kowal v. MCI Commc'ns Corp.,16 F.3d 1271, 1276 (D.C.Cir.1994). Furthermore, although the general standards that apply to the Court's review of 12(b)(1) and 12(b)(6) motions are similar in most respects, the rules implicate distinct legal challenges. "Rule 12(b)(1) presents a threshold challenge to the court's jurisdiction, whereas 12(b)(6) presents a ruling on the merits with res judicata effect." 93*93 Haase, 835 F.2d at 906. Thus, a motion to dismiss a complaint for failure to establish subject matter jurisdiction will be successful only if the plaintiffs fail to carry their burden of showing by a preponderance of the evidence that the Court has the statutory and constitutional power to adjudicate the claims. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), on the other hand, will be successful if the defendants show that the plaintiffs can prove no facts in support of their claims that would entitle them to relief. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Harris v. Ladner, 127 F.3d 1121, 1123 (D.C.Cir.1997).
DISCUSSION
I. WHETHER THE COURT SHOULD INFER BIVENS REMEDIES FOR ALLEGED TORTS COMMITTED BY THE DEFENDANTS

The Court first considers the defendants' challenges to the plaintiffs' claims for constitutional violations. The plaintiffs seek to have this Court fashion new nonstatutory damages remedies pursuant to Bivens for alleged torts committed in violition of the Fifth and Eighth Amendments to the United States Constitution by military officials who detained them.[6] The defendants counter that "special factors" counsel against inferring a Bivens cause of action and qualified immunity shields them from liability.
In Bivens, the Supreme Court held that a plaintiff could invoke the federal question jurisdiction of federal courts to recover money damages against federal officials who violated the plaintiffs constitutional rights. 403 U.S. at 397, 91 S.Ct. 1999. In that case, the plaintiff alleged that federal agents violated his Fourth Amendment rights when they searched his home and arrested him without probable cause and a lawful warrant, thereby subjecting him to humiliation and mental suffering. Id. at 389-90, 91 S.Ct. 1999. Although Congress had not expressly legislated authority for private lawsuits against government officials who violated the Fourth Amendment, the Supreme Court nonetheless inferred a cause of action and remedy directly under the Constitution based on the principle that "`where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.'" Id. at 396, 91 S.Ct. 1999 (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). Bivenstherefore stands for the proposition that a plaintiff who can establish the violation of a constitutional right for which a damages remedy is an appropriate form of relief may invoke the authority of federal courts to vindicate that right against the offending official. Butz v. Economou, 438 U.S. 478, 486, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)(stating that "Bivens established that compensable injury to a constitutionally protected interested could be vindicated by a suit for damages invoking the general federal-question jurisdiction of the federal courts").
Although inferring a Bivens cause of action serves the desired public policy of 94*94deterring individual federal officials from violating the Constitution, it would be fair to say that recognizing such a claim is clearly disfavored, as demonstrated by the fact that, in the 35 years or so since Bivens was decided, the Supreme Court has "extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct." Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ("The purpose of Bivens is to deter individual federal officers from committing constitutional violations.") (emphasis omitted). Indeed, the Supreme Court observed some time ago that its "decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts." Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). Notwithstanding this sentiment, the plaintiffs ask the Court to" extend Bivens to claims asserted by nonresident aliens allegedly tortured and abused while detained by the United States military in Iraq and Afghanistan during ongoing hostilities incident to war.[7]

A. Whether the Plaintiffs Assert a Constitutionally-Protected Right
The threshold question for the purpose of a Bivens analysis is whether the plaintiffs assert a right protected by the Constitution. See Davis, 442 U.S. at 234, 99 S.Ct. 2264(stating that the analysis of whether a Bivens remedy is appropriate "proceeds in three stages[,]" the first of which asks whether the "petitioner asserts a constitutionally protected right"). The plaintiffs claim that the defendants violated rights protected by both the Fifth and Eighth Amendments to the Constitution. Am. Compl. ¶¶ 235-46. The defendants refute this claim and argue that the plaintiffs may not assert a right protected by the Fifth Amendment because that amendment does not apply extraterritorially to nonresident aliens detained in Iraq and Afghanistan where the United States lacks sovereignty and is engaged in a war.[8] 95*95 Pappas' Mem. Supp. Mot. Dismiss 3-13; Pappas' Reply Br. 1-7; Rumsfeld's Mem. Supp. Mot. Dismiss 19-26; Rumsfeld's Reply Br. 5-9; Karpinski's Mem. Supp. Mot. Dismiss 28-36; Karpinski's Reply Br. 15-18; Sanchez's Mem. Supp. Mot. Dismiss 11, 20-24; Sanchez's Reply Br. 13-17. The defendants also argue that the plaintiffs may not assert a right protected by the Eighth Amendment because that amendment applies only to prisoners convicted of crimes, which is not the case here. Pappas's Mem. Supp. Mot. Dismiss 13; Rumsfeld's Mem. Supp. Mot. Dismiss 19; Rumsfeld's Reply Br. 6; Karpinski's Mem. Supp. Mot. Dismiss 29 n. 23; Sanchez's Mem. Supp. Mot. Dismiss 20-21. If, as the defendants claim, the plaintiffs cannot assert constitutionally-protected rights, then creating aBivens remedy is unwarranted.
No matter how appealing it might be to infer a Bivens remedy to vindicate injuries caused by federal officials committing abuses as severe as those alleged here, which otherwise might not be fully redressed, the reality is that several controlling cases compel the inescapable conclusion that the plaintiffs in this case are not entitled to such a cause of action because the Fifth and Eighth Amendments do not apply to them. Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950),United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and the D.C. Circuit's recent decision in Boumediene v. Bush, 476 F.3d 981 (D.C.Cir.2007),each make clear that the Constitution's reach is not so expansive that it encompasses these nonresident aliens who were injured extraterritorially while detained by the military in foreign countries where the United States is engaged in wars.
Eisentrager is the most instructive of these cases because, like the instant case, it involved nonresident aliens detained abroad during a war and is the seminal case holding that the Fifth Amendment does not apply to such aliens. In Eisentrager, twenty-one German prisoners filed writs of habeas corpus in this jurisdiction challenging their imprisonment for violating the laws of war by failing to cease active hostilities after Germany surrendered. 339 U.S. at 765, 70 S.Ct. 936. They were tried and convicted in China by an authorized American military commission and repatriated to Germany to serve their sentences. Id. at 766, 70 S.Ct. 936. They filed habeas corpus petitions alleging that their trial, conviction, and imprisonment violated the Fifth Amendment, as well as the Geneva Convention that governs the treatment of prisoners of war, among other asserted legal

infirmities. Id. at 767, 70 S.Ct. 936. The district court dismissed their petitions, id., but the D.C. Circuit reversed and reinstated them after concluding that constitutional provisions "apply directly to acts of Government, or Government officials, and are not conditioned upon persons or territory." Eisentrager v. Forrestal174 F.2d 961, 965 (D.C.Cir.1949), rev'd on other grounds sub 96*96 nom. Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255. From that conclusion followed the D.C. Circuit's determination that "a distinction between citizens and aliens cannot be made in respect to the applicability of constitutional restrictions upon the power of government." Id.
On appeal, the Supreme Court considered whether the Fifth Amendment applied to the German prisoners and flatly rejected the D.C. Circuit's rationale for reinstating their petitions because that rationale "dispensed with all requirement of territorial jurisdiction based on place of residence, captivity, trial, offense, or confinement" and "gave our Constitution an extraterritorial application to embrace our enemies in arms."Eisentrager, 339 U.S. at 784, 70 S.Ct. 936. The. Supreme Court first reasoned that:
[E]ven by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments.
Id. at 769, 70 S.Ct. 936: The Supreme Court went on to observe that the alien historically has been treated hospitably and "accorded a generous and ascending scale of rights as he increases his identity with our society." Id. at 770, 70 S.Ct. 936. The Supreme Court stated in no uncertain terms, however, that "in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id. at 771, 70 S.Ct., 936.
The Supreme Court also emphasized the peril in which the alien's status is placed by virtue of his nationality and allegiance to an enemy nation at war with the United States.Id. at 771-72, 70 S.Ct. 936. The Supreme Court recognized that "in war `every individual of the one nation must acknowledge every individual of the other nation as his own enemy — because the enemy of his country.'" Id. at 772, 70 S.Ct. 936 (quotingThe Rapid, 12 U.S. (8 Cranch) 155, 161, 3 L.Ed. 520 (1814)). As the Supreme Court explained, "[i]t is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us."[9] Id.at 771, 70 S.Ct. 936. The Supreme Court further explained that:
The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards

him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.
Id. The Supreme Court therefore set the enemy alien apart and acknowledged that nonresident enemy aliens historically lacked any standing to maintain an action in United States courts for the duration of 97*97 ongoing hostilities.[10] Id. at 776, 70 S.Ct. 936.
The Supreme Court ultimately concluded that the Fifth Amendment did not apply to the German prisoners and offered the following discussion about the factors it found significant:[11]
We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.
We have pointed out that the privilege of litigation has been extended to aliens, 98*98 whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.
Id. at 777-78, 70 S.Ct. 936 (emphasis added). It is clear from this passage that the Supreme Court found the extraterritoriality of all events relating to the prisoners' status, as well as the fact that they were enemies of our country, to be sine qua non.Accordingly, the Supreme Court held that "the Constitution does not confer a right of personal security . . . upon an alien enemy engaged in the hostile service of a government at war with the United States." Id. at 785, 70 S.Ct. 936.
As the defendants correctly point out, two subsequent Supreme Court decisions reaffirmed the principle that the Fifth Amendment does not apply extraterritorially to nonresident aliens, regardless of whether they are considered enemies. In Verdugo-Urquidez, the Supreme Court endorsed Eisentrager's holding and noted that its "rejection of extraterritorial application of the Fifth Amendment was emphatic." 494 U.S. at 269,, 110 S.Ct. 1056. Verdugo-Urquidez involved Fourth Amendment violations asserted by a citizen of Mexico who was arrested there for various narcotics offenses and transported to the United States for prosecution. Id. at 262, 110 S.Ct. 1056. After his arrest, agents of the United States Drug Enforcement Agency ("DEA") searched and seized property in Mexico without a warrant. Id. The Supreme Court declined to apply the Fourth Amendment extraterritorially to the nonresident alien and citedEisentrager with approval. Id. at 269, 275, 110 S.Ct. 1056 ("Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights

outside the sovereign territory of the United States."). Although the plaintiff in Verdugo-Urquidez was held in the United States against his will, the Supreme Court stated that "this sort of presence — lawful but involuntary — is not the sort to indicate any substantial connection with our country." Id. at 271, 110 S.Ct. 1056. Likewise, in Zadvydas,[12] the Supreme Court reiterated that "certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders" and favorably cited both Eisentrager and Verdugo-Urquidez for the proposition that the Fifth Amendment does not extend to nonresident aliens outside the territorial boundaries of the United States. 533 U.S. at 693, 121 S.Ct. 2491. Thus, at the very least, it is considered settled law that nonresident aliens must be within the sovereign territory of the United States to stake any claim to the rights secured by the Fifth Amendment.[13]
The D.C. Circuit's timely decision in Boumediene, which was issued last month, removes any doubt about whether this Circuit views the Constitution as conferring any rights on nonresident aliens detained 99*99 abroad. In Boumediene, the D.C. Circuit addressed the question of federal court jurisdiction over habeas petitions "filed by aliens captured abroad and detained as enemy combatants at the Guantanamo Bay Naval Base in Cuba[.]" 476 F.3d at 984. After summarizing the state of the law, the D.C. Circuit first determined that the recently-enacted Military Commissions Act of 2006, Pub.L. No. 109-366, 120 Stat. 2600 (2006) ("MCA"), applied to the detainees' habeas petitions. Id. at 986-88. The D.C. Circuit next considered the detainees' argument that the MCA provision barring federal court jurisdiction over their habeas petitions was an unconstitutional violation of the Suspension Clause. Id. at 988-94. The D.C. Circuit dispelled any notion that the detainees could invoke the Suspension Clause as a constitutional right when it stated that "[p]recedent in this court and the Supreme Court holds that the Constitution does not confer rights on aliens without property or presence within the United States." Id. at 991 (citing Eisentrager as "the controlling case").
The plaintiffs do not address Eisentrager or its progeny to any satisfaction;[14] instead, they latch on to the theory that nonresident aliens possess "fundamental rights"[15]under the Constitution in territories subject to the United States' control. Pls.' Opp'n Br. 16-24. For support, the plaintiffs rely principally on a line of cases known as the Insular Cases[16] and further argue that the correct test is whether recognizing a particular constitutional right would be "impracticable and anomalous," which the plaintiffs derive from Justice Harlan's concurrence in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), a plurality decision in which the Supreme Court held that civilian wives who were citizens of the United States could not be subjected to courts martial for murdering their military husbands overseas during a time of peace. Pls.' Opp'n Br. 19-20; 354 U.S. at 40-41, 74, 77 S.Ct. 1222. The plaintiffs further contend that this "impracticable and anomalous" test was recognized by Justice Kennedy in his concurring opinion in' Verdugo-Urquidez, which was cited with approval in a footnote inRasul I[17] and subsequently adopted by the district court in In re Guantanamo Detainee Cases, 355 F.Supp.2d 443 (D.D.C.2005), vacated and dismissed, Boumediene v. Bush, 476 F.3d 981 (D.C.Cir.2007). Pls.' Opp'n Br. 19-20 (arguing that "Justice Harlan's crucial concurrence . . . set forth the analysis that should govern").

The Court is not persuaded that the plaintiffs' asserted "fundamental rights" standard and "impracticable and anomalous" test hold sway. As a preliminary matter, the Insular Cases are truly historical cases decided predominantly at the beginning of the Twentieth Century and generally involved islands the United States 100*100 acquired as territories by annex or treaty, such as the Philippines, Hawaii and Puerto Rico. Reid,354 U.S. at 14, 77 S.Ct. 1222. The Supreme Court summarized these cases as follows:
In a series of decisions that have come to be known as the Insular Cases, the Court created the doctrine of incorporated and unincorporated Territories, e.g., De Lima v. Bidwell 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041 (1901); Dooley v. United States, 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Armstrong v. United States, 182 U.S. 243, 21 S.Ct. 827, 45 L.Ed. 1086 (1901); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). The former category encompassed those Territories destined for statehood from the time of acquisition, and the Constitution was applied to them with full force. See, e.g., Rassmussen v. United States, 197 U.S. 516, 25 S.Ct. 514, 49 L.Ed. 862 (1905); but seeHawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (1903). The latter category included those Territories not possessing that anticipation of statehood. As to them, only "fundamental" constitutional rights were guaranteed to the inhabitants. Although the question whether certain rights were or were not fundamental continued to provoke debate among the Members of the Court, it was clear that the Constitution was held not to extend ex proprio vigore to the inhabitants of Puerto Rico.
Examining Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 601 n. 30, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976). Accordingly, the fundamental rights analysis drawn from these cases has been applied only to aliens residing in incorporated and unincorporated territories of the United States. As the D.C. Circuit explained in Boumediene, "in each of [the Insular] cases, Congress had exercised its power under Article IV, Section 3 of the Constitution to regulate `Territory or other Property belonging to the United States,' U.S. Const., art. IV, § 3, cl. 2." 476 F.3d at 992. No case was brought to the Court's attention in which the fundamental rights analysis was applied to nonresident enemy aliens lacking any voluntary territorial contact with our country.
Significantly, Justice Black's plurality opinion in Reid, which garnered the support of four justices, announced in the most unmistakable terms the "judgment that neither the [Insular Cases] nor their reasoning should be given any further expansion." 354 U.S. at 14, 77 S.Ct. 1222. Furthermore, Justice Black's opinion essentially rejected Justice Harlan's impracticable and anomalous standard:
The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution,

that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.
Id. (emphasis added). Admittedly, Justice Black's opinion is not binding[18] — and even less so is Justice Harlan's concurrence — but it does signal an intent to limit the holdings in the Insular Cases. It also is 101*101 important to note that Justice Harlan's "impracticable and anomalous" test was discussed only in the context of exercising power over American citizens abroad, not aliens:
For Ross and the Insular Cases do stand for an important proposition, one which seems to me a wise and necessary gloss on our Constitution. The proposition is, of course, not that the Constitution "does not apply" overseas, but that there are provisions in the Constitution which do notnecessarily apply in all circumstances in every foreign place. In other words, it seems to me that the basic teaching of Ross and the Insular Cases is that there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over Americans overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the conditions and considerations are that would make adherence to a specific guarantee altogether impracticable and anomalous.
Id. at 74, 77 S.Ct. 1222 (second emphasis added). So the plaintiffs' assertion that "six Justices categorically rejected any suggestion that the Constitution does not apply outside the United States" must be placed in its proper context. Pls.' Opp'n Br. 19. Reiddealt only with rights applicable to United States citizens overseas. Because the plaintiffs are not United States citizens, "[they] can derive no comfort from the Reidholding." Verdugo-Urquidez, 494 U.S. at 270, 110 S.Ct. 1056. Moreover, Justice Harlan's concurrence suggests that even American citizens overseas may not be entitled to "all the guarantees of the Constitution," Reid, 354 U.S. at 74, 77 S.Ct. 1222,which certainly does not bode well for nonresident enemy aliens, who most assuredly would have a more tenuous right to invoke the Constitution's protections, if they have any right at all. Again, as the D.C. Circuit stated in Boumediene, nonresident aliens "without property or presence in the United States" have no constitutional rights. No. 05-50636, slip op. at 18.
The citation to Justice Harlan's concurrence in Reid is only the first stop on the circuitous route that is the plaintiffs' argument in favor of an "impracticable and anomalous" standard. The plaintiffs next rely on Justice Kennedy's concurring opinion in Verdugo-Urquidez, which they urge "endorses" the Insular Cases and sets the stage for the majority opinion in Rasul I. Reliance on Justice Kennedy's concurrence also is unavailing, however, because in Verdugo-Urquidez a majority of the Supreme Court acknowledged that the fundamental rights guaranteed by the Insular Cases applied only to aliens in unincorporated territories of the United States, whereas aliens in foreign nations with no ties to the United States had an "even weaker" claim to the Constitution. 494 U.S. at 268, 110 S.Ct. 1056. Thus, the majority in Verdugo-Urquidezintimated that nonresident aliens lacking any territorial contact with the United States were entitled to something less than the fundamental rights afforded by the Insular Cases. Id.

Nor is a vague footnote in Rasul I persuasive authority to support extending the fundamental rights doctrine to extraterritorial nonresident aliens. The plaintiffs in Rasul I, like several of the plaintiffs here, were detained by the United States military during ongoing hostilities in Afghanistan. 542 U.S. at 470, 124 S.Ct. 2686. Unlike the plaintiffs in the instant case, however, the plaintiffs in Rasul I were not nationals of countries at war with the United States and were detained at Guantanamo Naval Base, Cuba, a place over which the Supreme Court found the United States exercised complete jurisdiction and control. Id. at 480, 124 S.Ct. 2686. At issue in Rasul I was the question whether 102*102 "the habeas statute confers a right, to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not `ultimate sovereignty.'" Id. at 475, 124 S.Ct. 2686. The Supreme Court found that, because the habeas statute drew "no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship." Id. at 481, 124 S.Ct. 2686. Because the Supreme Court's examination of the issue resorted to the statutory authority for habeas petitions, and did not involve a substantive constitutional analysis, the decision has little practical applicability to the questions facing this Court, notwithstanding the plaintiffs' assertions that Rasul I effected a limitation on Eisentrager. As one defendant observed, "plaintiffs attempt to create binding Supreme Court precedent based solely on a footnote, citing to a concurring opinion that cites to yet another concurring opinion." Pappas' Reply Br. 6. This Court agrees and notes that the viability of the plaintiffs' theory would require the Court to wholly ignore binding precedent, which it is not willing to do.
Although the plaintiffs are correct that the district court in In re Guantanmo Detainee' Litigation inferred from Rasul I that constitutional rights were available to detainees at Guantanamo Bay Naval Base, no other case supports that conclusion and, more importantly, that decision was vacated and dismissed by Boumediene, which also vacated and dismissed the decision in Khalid v. Bush, 355 F.Supp.2d 311, 320-21 (D.D.C.2005), where the district court rejected the detainees' attempt to "cling to an expansive interpretation of the Supreme Court's recent opinion in Rasul as authority for this novel proposition." The only other recent decision in this court that considered the issue was Hamdan II, in which the district court relied on Eisentrager to hold that a nonresident alien detained at Guantanamo Bay Naval Base had no constitutional right to the writ of habeas corpus because the detainee lacked "the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus." 464 F.Supp.2d at 18 (stating that "the detention facility lies outside the sovereign realm, and only U.S. citizens in such locations may claim entitlement to a constitutionally guaranteed writ") (internal citation omitted).
The plaintiffs' final argument in support of their claim to Fifth Amendment protection asks the Court to find that Iraq and Afghanistan are territories over which the United States exercises control sufficient to warrant extending constitutional rights to nonresident aliens there, Pls.' Opp'n Br. 24-29. The United States is presently engaged in a war in both countries, a fact of which this Court takes judicial notice. See Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 301, 57 S.Ct. 724, 81

L.Ed. 1093 (1937) ("Courts take judicial notice of matters of common knowledge."). With the exception of various agreements and orders that govern the United States' military personnel, property and assets, and ensure freedom of action required to conduct military operations, the plaintiffs cite no authority for the proposition that the United States exercises plenary control or sovereign authority over Iraq or Afghanistan. Pls.' Opp'n Br. 24-29 (citing CPA Order No. 17 (Revised), Status of the CPA, MNFI, Certain Missions and Personnel in Iraq, § 2 (June 27, 2004) (originally issued June 26, 2003) and the Joint Declaration of the United States-Afghanistan Strategic Partnership, May 23, 2005). Daily news accounts reveal otherwise and the Court expresses skepticism about whether United States sovereignty can 103*103 ever be established simply by virtue of our Armed Forces' presence in a country with which we are at war and where hostilities are ongoing and no victor has been declared. The plaintiffs' asserted facts show only that the United States military has secured control over its own resources and ability to conduct military operations. The Court finds this insufficient to demonstrate the exercise of sovereignty such that the Constitution should be extended to all Iraqi and Afghani nationals resident there. More to the point, the D.C. Circuit noted in Boumediene that the determination of sovereignty is reserved for the political branches. No. 05-5062, slip op. 20 (citing Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380, 69 S.Ct. 140, 93 L.Ed. 76 (1948)).
Finally, with regard to the plaintiffs' assertion of a constitutional right under the Eighth Amendment, that claim fails not only because the plaintiffs are precluded from invoking the Constitution for the reasons already discussed, but also because the Eighth Amendment applies only to convicted criminals. Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) ("An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was intended to protect those convicted of crimes."); Bell v. Wolfish, 441 U.S. 520, 537 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (citing Ingraham and explaining that the Eighth Amendment comes into play only after a formal adjudication of guilt, whereas the Fourteenth Amendment covers the imposition of punishment absent such an adjudication); Whitley v. Albers, 475 U.S. 312, 318, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) ("The Cruel and Unusual Punishments Clause `was designed to protect those convicted of crimes,' and consequently the Clause applies `only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.'" (quoting Ingraham, 430 U.S. at 671 n. 40, 97 S.Ct. 1401)). Even assuming the Eighth Amendment applied to nonresident enemy aliens, the plaintiffs cannot avail themselves of that amendment's prohibition against cruel and unusual punishment because they were never convicted of a crime, whether a war crime or otherwise. As a result, they have not asserted a right under the Eighth Amendment that warrants the creation of a Bivens remedy.
B. Whether "Special Factors" Counsel Against Inferring a Bivens Remedy
While the creation of a Bivens remedy is foreclosed when no constitutionally-protected right is asserted, as is the case here, the same result also will obtain when there are "special factors

counselling [sic] hesitation in the absence of affirmative action by Congress." 403 U.S. at 396, 91 S.Ct. 1999. Special factors counseling hesitation "relate not to the merits of the particular remedy, but `to the question of who should decide whether such a remedy should be provided.'" SanchezEspinoza v. Reagan, 770 F.2d 202, 208 (D.C.Cir. 1985) (quoting Bush v. Lucas, 462 U.S. 367, 380, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)). According to this principle, courts should avoid creating a new, nonstatutory remedy when doing so would be "plainly inconsistent" with authority constitutionally reserved for the political branches. Chappell v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Moreover, even when authority is not constitutionally reserved for the political branches, there nevertheless might be reasons that favor allowing Congress, rather than the judiciary, to prescribe the scope of relief available to the plaintiffs. Bush, 462 U.S. at 380-90, 103 S.Ct. 2404. "Where, for example, the issue `involves a host of considerations 104*104 that must be weighed and appraised,' its resolution `is more appropriately for those who write the laws, rather than for those who interpret them.'" Sanchez-Espinoza, 770 F.2d at 208 (quoting Bush,462 U.S. at 380, 103 S.Ct. 2404). In addition, "the concept of `special factors counselling hesitation in the absence of affirmative action by Congress' has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent." Chilicky, 487 U.S. at 423, 108 S.Ct. 2460.
The defendants argue that special factors counseling hesitation exist in this case because inferring a Bivens cause of action would interfere with "core" executive and legislative functions by calling into question judgments made by the political branches regarding national security and military affairs. Pappas' Mem. Supp. Mot. Dismiss 14-22; Rumsfeld's Mem. Supp. Mot. Dismiss 7; Sanchez's Mem. Supp. Mot. Dismiss 11. The defendants claim that a Bivens remedy would interfere with military decision-making by imposing judicial oversight on military strategy and policies relating to the appropriate circumstances according to which enemy aliens are detained during a war. Pappas' Mem. Supp. Mot. Dismiss 14-22; Rumsfeld's Mem. Supp. Mot. Dismiss 15; Karpinski's Mem. Supp. Mot. Dismiss 23; Sanchez's Mem. Supp. Mot. Dismiss 13-17. The defendants also note that the federal courts have refused to extend Bivens into other forms of tort liability that are less sensitive and intrusive than would be the case here, and the Supreme Court has only twice determined that the judiciary was in a better position than the political branches to fashion a private cause of action under the Constitution. Pappas' Mem. Supp. Mot. Dismiss 16-18; Rumsfeld's Mem. Supp. Mot. Dismiss 3-4; Karpinski's Mem. Supp. Mot. Dismiss 17-18, 20-22; Sanchez's Mem. Supp. Mot. Dismiss 12. See also Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).
The plaintiffs, as well as amici, contest the notion that a Bivens remedy would impose judicial oversight over military decision-making and chill military effectiveness on the battlefield, arguing instead that "providing an effective remedy for the violation of Plaintiffs' constitutional rights would, be wholly consonant with longstanding military laws and regulations and would not entangle the Court in any inappropriate inquiry." Pls.' Opp'n Br. 36. See also Br. Amici Curiae of Concerned Retired Mil. Officers and Mil. Law and Hist. Scholars In Supp. of Pls.' Consol. Opp'n 5-23.[21] The

plaintiffs assert that105*105 Congress has not explicitly declared that plaintiffs are barred from recovering damages against military officials and there currently is no comprehensive remedial scheme to redress their injuries. Id. The plaintiffs argue that they "seek only the enforcement of the non-discretionary requirements of the Constitution in accord with the laws and regulations that have constrained the conduct of U.S. military detention operations for decades, and that manifestly prohibit the kinds of torture and abuse alleged here." Id. at 36-37.
The Court cautions against the myopic approach advocated by the plaintiffs and amici,which essentially frames the issue as whether torture is universally prohibited and thereby warrants a judicially-created remedy under the circumstances. There is no getting around the fact that authorizing monetary damages remedies against military officials engaged in an active war would invite enemies to use our own federal courts to obstruct the Armed Forces' ability to act decisively and without hesitation in defense of our liberty and national interests, a prospect the Supreme Court found intolerable inEisentrager:
Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.
Eisentrager, 339 U.S. at 779, 70 S.Ct. 936. Although the Supreme Court's concern was voiced in the context of granting writs of habeas corpus to enemy aliens, the same reasoning is equally applicable here. The discovery process alone risks aiding our enemies by affording them a mechanism to obtain what information they could about military affairs and disrupt command missions by wresting officials from the battlefield to answer compelled deposition and other discovery inquiries about the military's interrogation and detention policies, practices, and procedures. Military discipline and morale surely would be eroded by the spectacle of high-ranking military officials being haled into our own courts to defend against our enemies' legal challenges, which might leave subordinate personnel questioning the authority by which they are being commanded and further encumber the military's ability to act decisively. Commanders likely would hesitate to act for fear of being held personally liable for any injuries resulting from their conduct. These are only some of the many reasons why "[e]xecutive power over enemy aliens, undelayed and unhampered by 106*106 litigation, has been deemed, throughout our history, essential to war-time security." Id. at 774, 70 S.Ct. 936.
Moreover, the Supreme Court advised in United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), that it is irrelevant whether Congress has provided an adequate remedy for a plaintiffs injuries if "congressionally uninvited intrusion into military affairs by the judiciary is

inappropriate." 483 U.S. at 683, 107 S.Ct. 3054. In both Stanley and Chappell, the Supreme Court held that the need for unhesitating and decisive action by military officers, in conjunction with recognition of Congress' constitutionally-vested authority over military affairs, required the judiciary to abstain from inferring Bivens remedies against military officials for injuries arising out of, or in the course of, activities incident to military service.[22] Stanley, 483 U.S. at 683-84, 107 S.Ct. 3054 (reaffirming Chappell and holding that the same special factors counseled against creating Bivens remedies for injuries arising out of activities incident to military service); Chappell, 462 U.S. at 304-305, 103 S.Ct. 2362 ("The special nature of military life — the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel — would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command."). The D.C. Circuit has decreed that the same rationale applies when courts consider whether to infer Bivens remedies against military officials for constitutional violations involving aliens abroad. See SanchezEspinoza, 770 F.2d at 208-209.
In Sanchez-Espinoza, the D.C. Circuit considered on appeal claims filed by plaintiffs who were Nicaraguan citizens seeking redress against United States government officials, among others, for injuries inflicted by Contra forces fighting the Nicaraguan government. 770 F.2d at 204-205. The plaintiffs claimed the defendants violated the Fourth and Fifth Amendments by financing, supporting, and assisting the Contra forces' acts of terrorism, including torture, murder, rape, and summary execution. Id. at 205, 208. The D.C. Circuit concluded that the constitutional claims were properly dismissed by the district court because the claims involved considerations that rendered it more appropriate for Congress to decide whether a damages remedy should be available:
We have no doubt that . . . considerations of institutional competence preclude judicial creation of damage remedies here. Just as the special needs of the armed forces require the courts to leave to Congress the creation of damage remedies against military officers for allegedly unconstitutional treatment of soldiers, see Chappell v. Wallace, . . . so also the special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad. The foreign affairs implications of suits such as this cannot be ignored — their ability to produce what the Supreme Court has 107*107 called in another context `embarrassment of our government abroad' through `multifarious pronouncements by various departments on one question.' Whether or not the present litigation is motivated by considerations of geopolitics rather than personal harm, we think that as a general matter the danger of foreign citizens' [sic] using the courts in situations such as this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist.
Id. at 208-209 (internal citations omitted) (emphasis added). The same considerations are at play in this case and counsel hesitation in the creation of Bivens causes of action and remedies against the defendants.

It is established beyond peradventure that military affairs, foreign relations, and national security are constitutionally committed to the political branches of our government and "the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918); Schneider v. Kissinger, 412 F.3d 190, 194 (D.C.Cir.2005) ("Absent precedent, there could still be no doubt that decision-making in the fields of foreign policy and national security is textually committed to the political branches of government."). Although it may be the case that standards appropriate for judicial application are available to resolve whether certain acts constitute torture, in the Unique factual circumstances presented here that legal determination invariably would place the Court in the position of inquiring into the propriety of specific interrogation techniques and detention practices employed by the military while prosecuting wars. Some methods undoubtedly might be deemed improper and unlawful, but others might not — and still others might occupy a place on the periphery between the two. Military, executive, and congressional officials might arrive at a different conclusion from the judiciary about where, on the spectrum a particular interrogation technique falls and whether it was, or is, properly used to obtain information about our enemies while conducting a war. It is at this point of divergence that the judiciary most risks intruding into military and foreign affairs. The hazard of such multifarious pronouncements — combined with the constitutional commitment of military and foreign affairs to the political branches and the Court's previously expressed concerns about hindering our military's ability to act unhesitatingly and decisively — warrant leaving to Congress the determination whether a damages remedy should be available under the circumstances presented here.[23]
108*108 C. Whether the Defendants are Entitled to Qualified Immunity
The defendants insist they are entitled to qualified immunity from Bivens liability for any constitutional violations claimed by the plaintiffs. Pappas' Mem. Supp. Mot. Dismiss 22; Pappas' Reply Br. 13; Rumsfeld's Mem. Supp. Mot. Dismiss 16, 19; Rumsfeld's Reply Br. 9; Karpinski's Mem. Supp. Mot. Dismiss 27; Karpinski's Reply Br. 14-15; Sanchez's Mem. Supp. Mot. Dismiss 24; Sanchez's Reply Br. 17. The "threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Given the Court's determination that the plaintiffs are not entitled to assert a constitutionally-protected right derived from either the Fifth or Eighth Amendments, supra Part A(1), it logically follows that their allegations also fail to establish the violation of constitutional rights, for there can be no constitutional violation where no constitutional rights inure in the first place. Even assuming that the plaintiffs could establish that they are entitled to assert rights under the Fifth and Eighth Amendments, the Court finds that those rights were not clearly established at the time the alleged injurious conduct occurred.
The law recognizes that holding government officials liable for acts alleged to be an abuse of office comes with potential social costs, such as "the expenses of litigation, the diversion of official energy from pressing public issues . . . the deterrence of able citizens from acceptance of public office" and

"the danger that fear of being sued will `dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.'" Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To balance these social costs with the interest in vindicating constitutional rights, government officials are afforded qualified immunity, which shields them from "liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. 2727. To determine whether a constitutional right was clearly established, the Court must assess whether "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. 2151. "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Court looks to the state of the law at the time the alleged injuries occurred to determine whether constitutional rights were clearly established:
Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004).
Determining whether the defendants' acts violated clearly established constitutional rights need not require extended explication in this case because, as discussed at some length above, Supreme Court precedent at the time the plaintiffs were injured established that the Fifth 109*109 Amendment did not apply to nonresident aliens outside the sovereign territory of the United States. See Eisentrager, 339 U.S. at 784-85, 70 S.Ct. 936; Verdugo-Urquidez, 494 U.S. at 269, 110 S.Ct. 1056; Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491. Furthermore, in March 2003, again before the plaintiffs allegedly were injured, the D.C. Circuit issued its decision in Al Odah v. United States, 321 F.3d 1134 (D.C.Cir. 2003), rev'd sub nom. Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004), which confirmed the view that basic constitutional protections were unavailable to aliens abroad. 321 F.3d at 1141. As a colleague on this court observed, "not until the Supreme Court decisions in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (granting Guantanamo detainees the right to counsel) and Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (granting federal courts jurisdiction to hear Guantanamo detainees' habeas petitions) . . . were military personnel provided their first indication that detainees may be afforded a degree of constitutional protection." Rasul v. Rumsfeld, 414 F.Supp.2d 26, 44 (D.D.C.2006) ("Rasul II").
The plaintiffs seek to avoid this result by recasting the issue as whether it was clearly established that torture was unlawful, not whether it was clearly established that the constitutional right existed.

Pls.' Opp'n Br. 54-56 (arguing that "[q]ualified immunity was never meant to excuse knowing violations of the law based on a post hoc argument that the victim's legal remedies were not certain"). But the cases make clear that what must be "clearly established" is the constitutional right. See, e.g., Harlow, 457 U.S. at 818, 102 S.Ct. 2727 (stating that officials will be immune from liability when their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known"). The focus is on whether "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. 3034. This is the formulation the. Supreme Court has adopted and this Court must follow. This standard makes sense given that a Bivens remedy is available only for constitutional violations, not for violations of some other source of law, such as international law or treaties.
At the time the defendants committed the alleged violations, no constitutional right could be invoked by the plaintiffs; as a result, no reasonable official could have understood that what he was doing violated the Fifth Amendment as it applied to them, regardless of whether the defendants' conduct otherwise was illegal under some other source of law. Similarly, it also was not clearly established that the Eighth Amendment applied to nonresident aliens who were detained by the military but never convicted of a crime. The decisions in Ingraham, Bell, and Whitley, for example, which also were controlling law at the time the defendants allegedly injured the plaintiffs, clearly evinced a rule that the Eighth Amendment applied only after conviction. Ingraham, 430 U.S. at 664, 97 S.Ct. 1401; Bell, 441 U.S. at 537 n. 16, 99 S.Ct. 1861; Whitley, 475 U.S. at 318, 106 S.Ct. 1078. Accordingly, there being no violation of clearly established constitutional rights in this case, the defendants are entitled to qualified immunity from liability for the alleged constitutional torts.
II. WHETHER THE WESTFALL ACT SHIELDS THE DEFENDANTS FROM LIABILITY
The plaintiffs' remaining tort claims assert liability pursuant to the Alien Tort Statute, 28 U.S.C. § 1350, for violations of international law and Geneva Convention 110*110 IV. Pls.' Opp'n Br. 4. The defendants contend that they are absolutely immune from liability for such violations by the Federal Employees Liability Reform and Tort compensation Act of 1988, Pub.L. No. 100-694 (codified at 28 U.S.C. §§ 2671, 2674, 2679), which is, commonly referred to as the Westfall Act. The defendants take the position that absolute immunity is warranted because the Westfall Act applies to the plaintiffs' asserted international law claims and the defendants were acting within the scope of their employment. Pappas' Mem. Supp. Mot. Dismiss 34-38; Pappas' Reply Br. 13-18; Rumsfeld's Mem. Supp. Mot. Dismiss 26-31; Rumsfeld's Reply Br. 12-25; Karpinski's Mem. Supp. Mot. Dismiss 10-16; Karpinski's Reply Br. 2-6; Sanchez's Mem. Supp. Mot. Dismiss 25-34; Sanchez's Reply Br. 20-23. The plaintiffs challenge any such resort to the Westfall Act on the grounds that (1) the Act does not cover "intentional, egregious torts in violation of jus cogens norms such as the prohibition against torture and other cruel, inhuman or degrading treatment," (2) the defendants were acting outside the scope' of their employment, and (3) the international law claims fall within the Westfall Act's exception for statutory violations. Pls.' Opp'n Br. 60-61.

The Westfall Act affords federal employees absolute immunity from tort liability for negligent or wrongful acts or omissions they commit while acting within the scope of their employment. 28 U.S.C. § 2679(b)(1). The purpose of the Westfall Act is "to relieve covered employees from the cost and effort of defending the lawsuit, and to place those burdens on the Government's shoulders." Osborn v. Haley, ___ U.S. ___, ___, 127 S.Ct. 881, 901, 166 L.Ed.2d 819 (2007). Accordingly, the Westfall Act provides that, if the Attorney General or his designee certifies that a federal employee was acting within the scope of his employment when an alleged act or omission occurred, then the lawsuit automatically is converted to one against the United States under the Federal Tort Claims Act, the federal employee is dismissed as a party, and the United States is substituted as the defendant. 28 U.S.C. § 2679(d)(1); Osborn, 127 S.Ct. at 888. "The litigation is thereafter governed by the Federal Tort Claims Act. . . ." Osborn,127 S.Ct. at 888 (internal citation omitted).
A. Whether the Westfall Act Applies to Intentional Torts
The plaintiffs contest the notion that the Westfall Act applies to intentional torts that violate jus cogens norms that are recognized by the law of nations and Geneva Convention IV. Pls.' Opp'n Br. 62-66. The plaintiffs arrive at this conclusion by arguing that the Westfall Act statement that it applies to a "negligent or wrongful act or omission" is ambiguous. Id. at 62. To be specific, the plaintiffs take issue with the term "wrongful" — which is not defined in the statute — and invite the Court to resort to the legislative history to discern what Congress intended by this term. Id. The defendants oppose this tactic by arguing that it would be improper to consider the legislative history because the term "wrongful" should be interpreted according to its plain meaning. Pappas' Reply Br. 18; Rumsfeld's Reply Br. 12-14; Karpinski's Reply Br. 2.
The Court agrees with the defendants' approach. It has long been a cannon of statutory interpretation that courts will resort to legislative history only when, there is an ambiguity to be resolved. See, e.g., BedRoc Ltd. v. United States, 541 U.S. 176, 186, 124 S.Ct. 1587, 158 L.Ed.2d 338 (counseling against an approach that would depart with "longstanding precedents that permit resort to legislative history only when necessary to interpret ambiguous statutory text"). Otherwise, in the absence 111*111 of such an ambiguity, the legislature is presumed to have intended what it plainly expressed. See, e.g., United States v. Fisher, 6 U.S. 358, 399, 2 L.Ed. 304 (1805) (2 Cranch) ("Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction."). The mere fact that a term is undefined does not, by default, indicate an ambiguity that warrants resort to the statute's legislative history; to the contrary, an undefined term typically is construed according to its ordinary meaning. FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ("In the absence of . . . a definition, we construe a statutory term in accordance with its ordinary or natural meaning.").
The term "wrongful" ordinarily means "having no legal sanction." Merriam-Webster's Collegiate Dictionary 1368 (10th ed.1999). The Westfall Act therefore applies to a federal employee's acts or

omissions that have no legal sanction. It is axiomatic that intentional torts are not legally sanctioned, so it follows that the Westfall Act applies to intentional torts. This interpretation comports with legal precedent, according to which other courts have recognized application of the Westfall Act in the context of intentional tort claims. See Duffy v. United States, 966 F.2d 307, 313 (7th Cir.1992) ("We are unwilling to accept that intentional torts do not fall under the rubric of wrongful acts.");Rasul II, 414 F.Supp.2d at 31-36; Bancoult v. McNamara, 370 F.Supp.2d 1, 13 (D.D.C.2004), aff'd on other grounds, 445 F.3d 427 (D.C.Cir.2006); Waters v. United States, 812 F.Supp. 166, 169 (N.D.Cal.1993) ("By its terms, FTCA covers `negligent or wrongful acts or omissions.' The courts have interpreted this language to encompass both negligent and intentional torts."); Nadler v. Mann, 731 F.Supp. 493, 495 n. 6 (S.D.Fla.1990), aff'd in part and rev'd in part on other grounds, 951 F.2d 301 (11th Cir.1992) ("Certainly, if Congress intended to confine the Act to negligence claims, it would have written the Act in those terms. Moreover, while the legislative history quoted by Plaintiff emphasizes claims for negligence, the sponsor of the bill specifically referred to defamation as one of the torts covered by the Act.").
In light of the foregoing discussion, the plaintiffs' argument that the statute does not cover intentional torts is contrary to the plain meaning of the statute as well as precedent concluding otherwise. This Court therefore finds that the Westfall Act applies to the intentional, torts alleged by the plaintiffs in their Amended Complaint.
B. Whether the Westfall Act Applies to Claims Asserting Violations of the Law of Nations and Geneva Convention IV
Although the Westfall Act broadly applies to negligent acts or omissions committed by federal employees during the scope of employment, there are two exceptions that preclude its application "when an injured plaintiff brings: (1) a Bivens action, seeking damages for a constitutional violation by a Government employee; or (2) an action under a federal statute that authorizes recovery against a Government employee."United States v. Smith, 499 U.S. 160, 166-67, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991); 28 U.S.C. § 2679(b)(2). These are the only exceptions to the Westfall Act and the Supreme Court has indicated that it would be error to infer others. Smith, 499 U.S. at 167, 111 S.Ct. 1180. Consequently, the absolute immunity provided by the Westfall Act cannot be invoked by a defendant to shield himself from claims involving a Bivens 112*112remedy or claims premised on a statute that authorizes a private lawsuit against a federal employee.
The defendants maintain that they are entitled to absolute immunity under the Westfall Act for all claims asserted by the plaintiffs under the Alien Tort Statute for violations of the law of nations and Geneva Convention IV because those claims do not fall within either of these two exceptions to the Act. Pappas' Mem. Supp. Mot. Dismiss 22; Pappas' Reply Br. 13; Rumsfeld's Mem. Supp. Mot. Dismiss 16, 19; Rumsfeld's Reply Br. 9; Karpinski's Mem. Supp. Mot. Dismiss 27; Karpinski's Reply Br. 14-15; Sanchez's Mem. Supp. Mot. Dismiss 24; Sanchez's Reply Br. 17. In opposition, the plaintiffs attempt to avoid application of the Westfall Act by defending their contrary approach, which

argues that the claims for torture and abuse brought under the Alien Tort Statute and Geneva Convention IV do fall within the Act's exception for suits brought pursuant to a federal statute that authorizes recovery against a federal employee. Pls.' Opp'n Br. 73-77.
The question whether the Alien Tort Statute falls within the statutory exception to the Westfall Act was answered by the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 724, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), where it held that "the ATS is a jurisdictional statute creating no new causes of action." Accordingly, the plaintiffs cannot rely on the Alien Tort Statute to waive the Westfall Act because the plaintiffs have no claim for a violation of that statute itself. In other words, the Alien Tort Statute is not a federal statute that authorizes recovery against a federal employee. Two recent decisions from this court reached the same conclusions. See Rasul II, 414 F.Supp.2d at 38 ("The plain language of the ATCA . . . does not confer rights nor does it impose obligations or duties that, if violated, would trigger the Westfall Act's statutory exception."); Harbury v. Hayden, 444 F.Supp.2d 19, 38-39 (D.D.C.2006) (stating that "the ATCA cannot be the subject of `a violation' of a federal statute because the ATCA provides no substantive rights that could be the subject of any claimed violation"). The plaintiffs, however, ask the Court simply to ignore the Supreme Court's holding in Sosabecause "at the time Congress considered both the TVPA and the Westfall Act, it understood that the ATS provided a substantive cause of action for violations of the law of nations or treaties of the United States." Pls.' Opp'n Br. 75. This argument plainly is untenable given the binding effect Sosa has on this Court.
The plaintiffs' argument that Geneva Convention IV, a treaty, also falls within the statutory exception to the Westfall Act is equally unsound. Because the term "statute" is undefined, this Court will again resort to traditional cannons of statutory interpretation and look to the plain meaning of the word. Meyer, 510 U.S. at 476, 114 S.Ct. 996. In this case, the term "statute" is generally recognized to mean "a law enacted by the legislative branch of a government." Merriam-Webster's Collegiate Dictionary at 1149. The Westfall Act exception for violations of statutes further states that it applies to statutes "of the United States." 28 U.S.C. § 2679(b)(2)(B). Thus, taken as a whole, the Westfall Act's exception unmistakably applies to a law enacted by the legislative branch of the United States, i.e., Congress. Treaties are not enacted by the legislative branch. Treaties are international agreements made by the President with the advice and consent of Congress pursuant to Article II of the Constitution. See, e.g., Restatement (Third) of the Foreign Relations Law of the U.S. § 303 cmt. a (1987). 113*113 See alsoWhitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed. 386 (1888) (stating that "[a] treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law"). Because Geneva Convention IV is not a law enacted by Congress it does not fall within the Westfall Act's exception for statutes.[24]
C. Whether the Defendants were Acting within the Scope of Their Employment
The Westfall Act provides that the Attorney General may certify that an employee was acting within the scope of his employment. That certification is not conclusive, however.Osborn, 127 S.Ct. at

888 (citing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995)); Council on Am. Islamic Relations v. Ballenger,444 F.3d 659, 662 (D.C.Cir.2006). A plaintiff may challenge the certification by requesting judicial review to verify its legitimacy. Id. The plaintiffs have advanced such a challenge, so this Court now takes up that inquiry.
The D.C. Circuit has held that when the Attorney General's certification is challenged, the law of the jurisdiction where the employment relationship exists will govern the "scope of employment" analysis. Majano v. United States, 469 F.3d 138 (D.C.Cir.2006). According to District of Columbia law, the scope of employment is governed by the Restatement (Second) of Agency, which states that employee conduct is within the scope of employment if (1) it is the kind of conduct the employee is employed to perform, (2) the conduct occurs substantially within the authorized time and space limits, (3) the conduct is actuated, at least in part, by a purpose to serve the master, and (4) the intentional use of force is not unexpected by the master. Id. at 141 (citing the Restatement (Second) of Agency § 228 (1957)). "The test for scope of employment is an objective one, based on all the facts and circumstances." Weinberg v. Johnson,518 A.2d 985, 991 (D.C.1986).
The parties do not dispute this legal standard. What the parties do dispute, however, is whether violations of jus cogens international law ever can be deemed to be within the scope of employment. The plaintiffs seek a per se rule that violations of jus cogensinternational law are never within the scope of employment and bank their entire argument on the first prong of the scope of employment analysis, which asks whether the conduct at issue is the kind of conduct the employee is employed to perform. Pls.' Opp'n Br. 67. 114*114 The plaintiffs assert that the "[d]efendants' conduct cannot be deemed to be within the scope of employment because, it is not foreseeable that the Secretary of Defense of the United States or high-ranking U.S. military commanders would authorize and tolerate torture and other cruel, inhuman or degrading treatment of detainees." Id. at 69. The defendants dispute this contention and argue that two other decisions of this court considered and rejected similar arguments in cases involving alleged human rights violations by government officials. See Rasul II, 414 F.Supp.2d at 31-36; Schneider, 310 F.Supp.2d at 264-67.
To determine whether conduct is of the kind an employee is employed to perform, the conduct either must be of the same general nature as that which he is authorized to perform or be incidental to authorized conduct. Ballenger, 444 F.3d at 664. As the D.C. Circuit explained in Ballenger, "[t]he proper inquiry in this case `focuses on the underlying dispute or controversy, not on the nature of the tort, and is broad enough to embrace any intentional tort arising out of a dispute that was originally undertaken on the employer's behalf.'" Id. (quoting Weinberg, 518 A.2d at 992) (emphasis added). In that case, a congressman was sued for defamation by a pro-Islam nonprofit organization that alleged he engaged in a telephone conversation with a reporter during which he described the organization as a fund-raising arm for Hezbollah. Id. at 662. The organization argued that the statement exceeded the scope of the congressman's employment because making such a statement was not conduct of the kind he was supposed to perform. Id. The D.C. Circuit rejected framing the issue so narrowly and focused instead on whether the telephone conversation that resulted in the

statement was the kind of conduct the congressman was employed to perform. The D.C. Circuit concluded that "[s]peaking to the press during regular work hours in response to a reporter's inquiry falls within the scope of a congressman's `authorized duties."' Id. At 664.
Following this reasoning, the proper inquiry for this Court's purpose is whether detaining and interrogating enemy aliens were the kinds of conduct the defendants were employed to perform or were incidental to the conduct the defendants were employed to perform. The Court finds that they were. As military officials commanding Armed Forces serving our country during a war, there can be no credible dispute that detaining and interrogating enemy aliens would be incidental to their overall military obligations. The plaintiffs' Amended Complaint concedes as much by describing the defendants in terms of their command and control over United States military personnel and responsibility for detainees. Am. Compl. ¶¶ 26-30. The Court finds that, unlike many other cases where the scope of employment is properly a question of fact for the jury, in this case no reasonable jury could reach a different conclusion. The plaintiffs never argued that the detention and interrogation of aliens was outside the scope of the defendants' employment but, instead, focused their entire argument on the nature of the tort, a tactic the D.C. Circuit expressly rejected in Ballenger.
Because the plaintiffs' challenge under the first factor of the scope-of-employment analysis fails, and they invoked no other factors to oppose the Attorney General's certification, the Court holds that the certification stands and the defendants are entitled to absolute immunity pursuant to the Westfall Act for the alleged international law violations. Accordingly, the plaintiffs' lawsuit is converted to one against the United States under the Federal Tort Claims Act, in which case Rumsfeld, Pappas, Karpinski and Sanchez shall be dismissed 115*115 as parties and the United States shall be substituted as the sole defendant for all international law claims raised under the Alien Tort Statute.[25]
Anticipating that substitution might be upheld, the United States moved for dismissal under the Federal Tort Claims Act based on its assertion that the plaintiffs have not exhausted their administrative remedies as required by the statute. Rumsfeld's Mem. Supp. Mot. Dismiss 30-31. The Federal Tort Claims Act mandates that "[a]n action shall not be instituted upon a claim against the United States for money damages . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675(a). The plaintiffs never rebutted the United States' assertion that they failed to exhaust their administrative remedies. As a result, for lack of subject matter jurisdiction, the Court also will dismiss without prejudice the international law claims that are now asserted against the United States pursuant to the Federal Tort Claims Act.
III. WHETHER GENEVA CONVENTION IV AFFORDS THE PLAINTIFFS A PRIVATE RIGHT OF ACTION

In addition to invoking the Alien Tort Statute as authority for a cause of action for money damages to remedy alleged violations of Geneva Convention IV, the plaintiffs also assert, that the treaty itself provides a private right to sue. Pls.' Opp'n Br. 77-84. The plaintiffs point to Articles 3, 27, 31, 32, 118 and 119 of Geneva Convention IV as self-executing provisions and rely principally on the decision in Jogi v. Voges, 425 F.3d 367 (7th Cir.2005), to validate this contention. Id. at 79-80. The defendants counter that the D.C. Circuit's decision in Hamdan v. Rumsfeld, 415 F.3d 33, 39 (D.C.Cir.2005),rev'd on other grounds, ___ U.S. ___, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006)("Hamdan I"), as well as other cited precedent, forecloses any notion that Geneva Convention IV affords private rights. Pappas' Mem. Supp. Mot. Dismiss 38-39; Pappas' Reply Br. 20-21; Rumsfeld's Mem. Supp. Mot. Dismiss 31-32; Karpinski's Mem. Supp. Mot. Dismiss 45; Karpinski's Reply Br. 21-23; Sanchez's Mem. Supp. Mot. Dismiss 36.
The Court is not convinced that Geneva Convention IV is self-executing and establishes individual rights that may be judicially enforced via private lawsuits in federal courts. "Absent authorizing legislation, an individual has access to courts for enforcement of a treaty's provisions only when the treaty is self-executing, that is, when it expressly or impliedly provides a private right of action." TelOren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (per curium) (Bork, J., concurring). First, the decision in Jogi is not as authoritative as the plaintiffs would like it to be with respect to interpretation of the treaty provisions at issue here. In Jogi, the Seventh Circuit considered a foreign national's claim that he was deprived of his right under the Vienna Convention on Consular Relations to contact his country's consulate for assistance after he pled guilty to aggravated battery with a firearm and was imprisoned. 425 F.3d at 369-70. The Seventh Circuit's determination that the Vienna Convention provided a private right of action was premised on an article 116*116 in the treaty that stated that a person could request that authorities notify his consulate about his arrest or detention and expressly mandated that the "authorities shall inform the person concerned without delay of his rights" to make such a request. Id. at 374 (emphasis added). None of the provisions of Geneva Convention IV contain any such express or implied language indicating that persons have individual "rights" that may be enforced under the treaty. Instead, the provisions of Geneva Convention IV state general obligations with regard to the treatment of protected persons that are imposed on signatory States.
Second, the Court's position on this issue is bolstered by the language of the treaty itself. Judge Bork's concurrence in Tel-Oren, 726 F.2d at 809, explained that "[a] treaty that provides that party states will take measures through their own laws to enforce its proscriptions evidences its intent not to be self-executing." In this case, Article 146 of Geneva Convention IV, which is located in Part IV titled "Execution of the Convention," states:
The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.
6 U.S.T. 3516, art. 146. In addition, it is the law of this circuit that a treaty is not self-executing when the rights of individuals are intended to be vindicated through diplomatic recourse. Holmes v. Laird, 459 F.2d 1211, 1222 (D.C.Cir.1972). Article 149 provides that any alleged violation of the treaty shall be subject to an "enquiry" at the request of a party to the conflict, which enquiry shall be undertaken according to procedures negotiated by the parties or determined by an agreed-upon umpire. Id. at art. 149. If a violation of the treaty is established, "the Parties to the conflict shall put an end to it and shall repress it with the least possible delay." Id. When considered as a whole, it is apparent from these provisions — which make clear that enforcement of Geneva Convention IV is to be left to the legislation and laws of the parties or to diplomatic enquiry — that the treaty is not intended to be self-executing, in which case the plaintiffs are not entitled to pursue private lawsuits against the defendants for alleged violations. This result is consonant with the recognized rule that "international agreements, even those directly benefitting private persons, generally do not create private rights or provide for a private cause of action in domestic courts." Restatement (Third) of the Foreign Relations Law of the United States § 907 cmt. a (1987); Hamdan I, 415 F.3d at 39.
Third, other courts that have passed on the question of whether provisions of Geneva Convention IV are self-executing also concluded otherwise. See Huynh Thi Anh 117*117 v. Levi, 586 F.2d 625, 629 (6th Cir.1978) (stating that general language in Geneva Convention IV offered no evidence that the treaty "was intended to be self-executing or to create private rights or action in the domestic courts of the signatory countries, in the absence of further domestic legislative action"); Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 439 n. 16 (D.N.J.1999) ("Had Iwanowa attempted to assert a claim under the Hague or Geneva Conventions, it would have been dismissed for lack of jurisdiction because only self-executing treaties, i.e., those that do not require legislation to make them operative, confer rights enforceable by private parties.");American Baptist Churches v. Meese, 712 F.Supp. 756, 770 (N.D.Cal. 1989)(determining that Article I of Geneva Convention IV is not selfexecuting because it "does not impose any specific obligations on the signatory nations, nor does it provide any intelligible guidelines for judicial enforcement").
Fourth, the recently-enacted Military Commissions Act of 2006, 109 P.L. 366, 120 Stat. 2600, confirms the Court's view that Geneva Convention IV is not self-executing. Section 5 of the Act states that "[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas

corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories." However, given that the other stated grounds support the Court's conclusion that Geneva Convention IV is not self-executing, it is not necessary to address at this time whether the Military Commissions Act of 2006 has retroactive application to the plaintiffs' lawsuit.
Because Geneva. IV manifests an intent to be enforced through legislation or diplomacy, it is not a self-executing treaty that provides a private right for the' plaintiffs to sue the defendants for money damages. The plaintiffs' cause of action for violations of Geneva Convention IV therefore fails to state a claim for relief and will be dismissed.
IV. WHETHER THE PLAINTIFFS ARE ENTITLED TO A DECLARATORY JUDGMENT
The plaintiffs' final cause of action seeks a "judicial declaration that Defendant Rumsfeld's conduct deprived them of their rights under the law of nations, provisions of the Geneva Conventions, and the Fifth and Eighth Amendments to the U.S. Constitution." Am. Compl. ¶ 262. Pappas, Karpinski, and Sanchez respond by arguing that the plaintiffs lack standing, waived such claims by failing to allege them in the Amended Complaint, and may not pursue a declaratory judgment against government officials in their individual capacities. Pappas Reply Br. 21-22; Karpinski Reply Br. 2325; Sanchez Reply Br. 23-24. Rumsfeld challenges only the plaintiffs' standing to pursue a declaratory judgment. Rumsfeld Reply Br. 25.
According to the Declaratory Judgment Act, "in a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a); Medlmmune, Inc. v. Genentech, Inc., ___ U.S. ___, ___, 127 S.Ct. 764, 771, 166 L.Ed.2d 604 (2007). It is well established that "district courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites." Wilton v. Seven Falls Co., 515 U.S. 277, 283, 115 S.Ct. 118*118 2137, 132 L.Ed.2d 214 (1995). "The fact that a court can enter a declaratory judgment does not mean that it should." Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). So, for example, a declaratory judgment should be declined when it would serve only as a statement of law without any practical enforcement effect. S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch., Inc., 24 F.3d 427, 431 (2d Cir.1994). Furthermore, to establish standing that satisfies the case-or-controversy requirement under Article III of the Constitution, the dispute that is the subject of the request for a declaratory judgment must "be `definite and concrete, touching the legal relations of parties having adverse legal interests'; and that it be `real and substantial' and `admit of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'" MedImmune, 127 S.Ct. at 771. Thus, "[p]ast exposure to illegal conduct does not in itself

show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects."O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).
The plaintiffs' argue that they have standing to pursue a declaratory judgment based on their allegations that they are at risk of being re-arrested and injured again, several of the plaintiffs were arrested based on alleged false accusations by third parties that place them at risk for rearrest, military officials threatened several of the plaintiffs with re-arrest if they discussed the treatment they received while in custody, and the United States military continues to exercise control over detainees in Iraq and Afghanistan, among other claims. Pls.' Opp'n Br. 85-86. The fundamental problem with the plaintiffs' assertion of standing is that Pappas, Karpinski, and Sanchez are no longer in positions of command in Iraq, a point the plaintiffs concede in their opposition brief. Pls.' Opp'n Br. 40. The same can be said for Rumsfeld, who resigned from his position as Secretary of Defense several months ago. Significantly, Congress also has passed the Detainee Treatment Act of 2005, 109 P.L. 148, 119 Stat. 2680, which establishes uniform standards for interrogations and prohibits cruel, inhuman or degrading treatment, of detainees. Section 6 of the newly-enacted Military Commissions Act also contains provisions directed at enforcing Geneva Convention IV prohibitions against torture and cruel or inhuman treatment. Since the defendants are no longer in positions to enforce policies permitting torture or abuse, Congress has taken action to prohibit such policies and provide remedies for violations, and the plaintiffs have been at liberty for more than two years without rearrest, the plaintiffs have made an insufficient showing that they face a real and imminent threat of being wronged again in the future.See Los Angeles v. Lyons, 461 U.S. 95, 105-113, 103 S.Ct. 1660, 75 L.Ed.2d 675. A declaratory judgment therefore would have no practical enforcement effect or serve as anything other than an opinion advising the plaintiffs what the law would be if they were rearrested, if the military officials detaining them interrogated them again, and if the military officials violated federal law in doing so.
Even if the plaintiffs could establish standing, the defendants' argument that it would be improper to grant declaratory relief against them in their individual capacities is well taken under the circumstances. See Feit v. Ward, 886 F.2d 848, 858 (7th Cir.1989)(holding that "a declaration that the policy is unconstitutional and an injunction barring the defendants from implementing the policy in the future — can 119*119 be obtained only from the defendants in their official capacities, not as private individuals"). The plaintiffs' request for declaratory relief is grounded on the "policies, practices and procedures that caused the torture and cruel, inhuman or degrading treatment" and their fear that they might be subjected to the same official policies in the future if they are rearrested. Pls.' Opp'n Br. 85-86. Because the challenged policies were carried out by the defendants in their capacities as military officials, however, the plaintiffs must seek declaratory relief against them in their official capacities, which they have failed to do here. Feit, 886 F.2d at 858.
Because the plaintiffs lack standing to pursue a declaratory judgment against the defendants and, even if standing existed, the request for declaratory judgment is unavailable against the defendants

in their individual capacities, this cause of action will be dismissed for lack of subject matter jurisdiction and failure to state a claim for relief.
V. WHETHER THE PLAINTIFFS' CLAIMS RAISE NONJUSTICIABLE POLITICAL QUESTIONS
Both Karpinski and Sanchez independently argued that the allegations leveled against them in the plaintiffs' Amended Complaint raise nonjusticiable political questions that deprive this Court of jurisdiction. Karpinski's Mem. Supp. Motion Dismiss 34-44; Sanchez's Mem. Supp. Mot. Dismiss 510. "Since [the Court] find[s] other bases for dismissing the suit — and bases which do not expand [the Court's] jurisdiction by resolving the assertedly political question on its merits," the Court will rest its judgment on those other bases and deny as moot Karpinski's and Sanchez's arguments that the plaintiffs' claims involve nonjusticiable political questions. Sanchez-Espinoza v. Reagan,770 F.2d 202, 206 (1985).
CONCLUSION
For the foregoing reasons, the Court will grant the defendants' motions to dismiss the plaintiffs' First and Second Causes of Action for failure to state claims upon which relief may be granted and on the ground that the defendants are entitled to qualified immunity. The Court also will grant each defendant's motion to dismiss the plaintiffs' Third, Fourth and Fifth Causes of Action for lack of subject matter jurisdiction and failure to state claims for relief. In addition, pursuant to the Westfall Act, the United States having been substituted as the sole defendant for those claims brought under the Alien Tort Statute, those claims shall be dismissed without prejudice for lack of subject matter jurisdiction pending the exhaustion of all administrative remedies. Lastly, the defendants' motions to dismiss the plaintiffs' Sixth Cause of Action will be granted for lack of subject matter jurisdiction and failure to state a claim for relief. Because all claims are dismissed against all parties, Colonel Thomas Pappas' motion to dismiss for lack of personal jurisdiction is denied as moot and Colonel Janis Karpinski's and Lieutenant General Ricardo Sanchez's motion to dismiss on the ground that the plaintiffs' Amended Complaint raises nonjusticiable political questions also will be denied as moot. An appropriate order will accompany this Memorandum Opinion.
ORDER
In accordance with the accompanying Memorandum Opinion, it is hereby
ORDERED that the Motion to Dismiss filed by Thomas Pappas [05-CV-1377 Doc. No. 13] is GRANTED IN PART and DENIED IN PART as moot. It is also
120*120 ORDERED that Defendant's and the United States' Motion to Dismiss [05-CV-1378 Doc. No. 10] is GRANTED in its entirety. It is also

ORDERED that Defendant Janis Karpinski's Motion to Dismiss [05-CV-1379 Doc. No. 13] is GRANTED IN PART and DENIED IN PART as moot. In addition, it is also
ORDERED that Lieutenant General Ricardo Sanchez's Motion to Dismiss Amended Complaint [05CV-1380 Doc. No. 12] is GRANTED IN PART and DENIED IN PART as moot. Accordingly, it is further
ORDERED that the plaintiffs' cases shall be dismissed.
SO ORDERED.
[1] The plaintiffs state that they "were not engaged in any hostilities against the United States and pose no threat." Pls.' Consol. Opp'n to Defs.' Mots. to Dismiss 4. The Afghani plaintiffs maintain that they were "targeted . . . for arrest and detention based on the false statements of local individuals who worked closely with U.S. forces and harbored personal and/or political animosity toward" them. Am. Compl. ¶¶ 176, 180, 184, 188. The Iraqi plaintiffs offered no theory about the reasons for their detentions by the military. During oral arguments before this Court on December 8, 2006, the defendants implied that the plaintiffs' characterization of themselves as innocent civilians might be subject to dispute. Nevertheless, as explained in Part II, infra, for the purpose of resolving the pending motions to dismiss, the Court will assume the truth of all facts alleged in the plaintiffs' Amended Complaint.
[2] Based on the facts asserted in the Amended Complaint and the legal briefs submitted by the parties, it appears to the Court that these officials possessed the identified titles at the relevant times the conduct occurred that gave rise to the plaintiffs' lawsuits. Am. Compl. ¶¶ 27-30; Pappas' Mem. Supp. Mot. Dismiss 2. It is possible, if not likely, these titles have changed due to subsequent reassignments, retirements, or other career-related events.
[3] The military officers and scholars assert that they "have an interest in the maintenance of the long and honorable tradition of the United States military of humane treatment of detainees captured in armed conflict and strict enforcement of military, domestic and international law requiring such treatment." Br. Amici Curiae of Concerned Retired Mil. Officers and Mil. Law and Hist. Scholars In Supp. of Pls.' Consol. Opp'n 1. Messrs. Burgers and van Boven stress that, because of their scholarship and work with international human rights organizations, they "have a significant interest in ensuring the enforcement of human rights norms, particularly the norm against torture and cruel, inhuman, or degrading treatment, in the United States and around the world." Br. of J. Herman Burgers and Theo van Boven as Amici Curiae In Supp. of Pls.' Opp'n to the Defs.' Mots. to Dismiss 1-2.
[4] Although the plaintiffs originally asserted a cause of action under the Third Geneva Convention as well, they essentially abandoned that claim once it became clear that the government was not characterizing the plaintiffs as prisoners of war, albeit the plaintiffs sought to reserve argument on the matter in the event it later became an issue. Pls.' Opp'n Br. 77 n. 65.
[5] The plaintiffs claim that the defendants were directly and personally involved in establishing the interrogation procedures that "authorized abusive techniques and that foreseeably caused this torture and abuse." Pls.' Opp'n Br. 6. The plaintiffs also claim that the defendants knew torture and abuse were occurring, were present at Abu Ghraib at times when officials under their command were committing the torture and abuse, and continued to permit the torture and abuse rather than preventing or punishing the conduct, which resulted in a "climate in which torture and detainee abuse were condoned." Pls.' Opp'n Br. 6-7.
[6] The plaintiffs do not allege that the defendants personally tortured and abused them; rather, the plaintiffs seek to impose liability on the defendants for the acts of their subordinates under the "command responsibility" doctrine, which they argue "is an entrenched and central part of military law and training." Pls.' Opp'n Br. 14 (citing Estate of Ford v. Garcia, 289 F.3d 1283 (11th Cir.2002), In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499 (1946),Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995), and Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir.1996)).
[7] In response to the September 11, 2001, terrorist attacks, "Congress passed a joint resolution authorizing the President to use `all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . or harbored such organizations or persons.'" Rasul v. Bush, 542 U.S. 466, 470, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (quoting Authorization for Use of Military Force, Pub.L. 107-40, §§ 12, 115 Stat. 224) ("Rasul I"). "Acting pursuant to that authorization, the President sent U.S. Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it." Id. Little more than a year later,

on October 16, 2002, Congress passed another joint resolution authorizing the President to "(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub.L. 107-243, § 3, 116 Stat. 1498, 1501 (2002). There appears to be no dispute that, presumably in accordance with both' authorizations, the United States has been enmeshed in ongoing wars in both Afghanistan and Iraq, and was engaged in active hostilities in both countries at the relevant times the plaintiffs allege they were detained and tortured. The plaintiffs argue, however, that they were "detained in prisons and detention facilities away from the exigencies of combat. . . ." Pls.' Opp'n Br. 37.
[8] Pappas and Sanchez raised this argument as an independent ground for dismissal apart from the question of whether the defendants are entitled to qualified immunity. Pappas' Mem. Supp. Mot. Dismiss 3-13; Pappas' Reply Br. 1-7; Sanchez's Mem. Supp. Mot. Dismiss 11, 20-24; Sanchez's Reply Br. 13-17. Rumsfeld and Karpinski discuss the question of whether the Fifth Amendment applies to the plaintiffs only in the context of considering whether the defendants are entitled to qualified immunity, perhaps because the legal standard for review of the qualified immunity defense requires the Court to first assess whether the official's conduct violated a constitutional right before proceeding any further. See, e.g., Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Thus, the legal standard for review of the qualified immunity defense essentially incorporates the very inquiry necessary to determine whether a Bivens remedy would be available to the plaintiffs at all, although the qualified immunity inquiry takes the analysis one step further by asking whether the asserted constitutional right was actually violated.
[9] The Supreme Court also stated that, "[w]hile [the enemy alien's] lot is far more humane and endurable than the experience of our citizens in some enemy lands, it is still not a happy one." Id. at 771-72, 70 S.Ct. 936. Regrettably, the facts alleged in the plaintiffs' Amended Complaint stand as an indictment of the humanity with which the United States treats its detainees.
[10] In this regard, the Supreme Court observed that:
The standing of the enemy alien to maintain any action in the courts of the United States has been often challenged and sometimes denied. The general statement was early made on combined authority of Kent and Story "That they have no power to sue in the public courts of the enemy nation." Our rule of generous access to the resident enemy alien was first laid down by Chancellor Kent in 1813, when, squarely faced with the plea that an alien enemy could not sue upon a debt contracted before the War of 1812, he reviewed the authorities to that time and broadly declared that "A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity." A unanimous Court recently clarified both the privilege of access to our courts and the limitations upon it. We said: "The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today."
But the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy. Our law on this subject first emerged about 1813 when the Supreme Court of the State of New York had occasion, in a series of cases, to examine the foremost authorities of the Continent and of England. It concluded the rule of the common law and the law of nations to be that alien enemies resident, in the country of the enemy could not maintain an action in its courts during the period of hostilities. This Court has recognized that rule . . . and followed it . . . and it continues to be the law throughout this country and in England.
Id. at 776-77, 70 S.Ct. 936 (internal citations omitted) (emphasis added). The argument could be made that the Supreme Court's analysis in Eisentrager left this common law rule intact; however, neither party addressed in their briefs the rule or the case law from which it reportedly is derived. Albeit, at first glance the Supreme Court's more recent decision in Rasul I, discussed infra, would appear to call into question the viability of the rule by rejecting the notion that aliens detained in military custody lack the privilege of litigation and by granting jurisdiction to, review the habeas petitions and other "nonhabeas statutory claims," that case involved petitioners who were nationals of countries that were not at war with the United States and whose status as "enemies" was not yet proven. 542 U.S. at 476, 124 S.Ct. 2686. But see Hamdan v. Rumsfeld, 464 F.Supp.2d 9, 17 (D.D.C. 2006) ("Hamdan II") (stating that a detainee at Guantanamo Bay "has not become a part of the population enough to separate himself from the common law tradition generally barring non-resident enemy aliens from accessing courts in wartime").
[11] In Rasul I, the Supreme Court described these facts as "critical." 542 U.S. at 475, 124 S.Ct. 2686.
[12] Zadvydas involved appeals by resident aliens who challenged a federal statute authorizing the government to detain removable aliens indefinitely. 533 U.S. at 682, 684-86, 121 S.Ct. 2491.

[13] The D.C. Circuit indicated its adherence to the principle that nonresident aliens outside the territory of the United States have no constitutional rights in Pauling v. McElroy, 278 F.2d 252, 254 n. 3 (D.C.Cir.1960), when it stated that "[t]he nonresident aliens here plainly cannot appeal to the protection of the Constitution or laws of the United States" and cited Eisentrager as support.
[14] Rather than address the legal implications of Eisentrager, the plaintiffs simply disregard the analysis as mere dicta. Pls.' Opp'n Br. 32. As the D.C. Circuit emphasized in Boumediene, however, "Editing Eisentrager, we held inPauling v. McElroy, 278 F.2d 252, 254 n. 3 (D.C.Cir.1960) (per curium), that `non-resident aliens . . . plainly cannot appeal to the protection of the Constitution or laws of the United States.'" Boumediene, 476 F.3d at 992.
[15] The plaintiffs argue that "Wile right not to be tortured is a fundamental right under any circumstance." Pls.' Opp'n Br. 23 n. 17.
[16] See De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041 (1901); Dooley v. United States, 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Armstrong v. United States, 182 U.S. 243, 21 S.Ct. 827, 45 L.Ed. 1086 (1901); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901).
[17] 542 U.S. at 484 n. 15, 124 S.Ct. 2686.
[18] See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 300 (D.C.Cir.2006) (acknowledging that a plurality opinion is nonbinding).
[21] As amici, the retired military officers and scholars argue that military history, doctrines and regulations afford officials no discretion to engage in torture and abuse so judicial enforcement of the prohibitions against such conduct will not impinge on military affairs or national security matters reserved for Congress or the Executive Branch. Br. Amici Curiae of Concerned Retired Mil. Officers and Mil. Law and Hist. Scholars In Supp. of Pls.' Consol. Opp'n 6-18. They also argue that treaties and legislation indicate that Congress and the Executive Branch recognize the competence of federal courts to adjudicate violations of norms prohibiting torture and abuse. Id. at 18-23. Although amici offer a cogent historical and legal analysis to support their contentions, their argument overlooks the fact that the question before the Court is not a general inquiry into the legality of the defendants' conduct but, rather, a specific inquiry into whether a Bivens cause of action is appropriate in this case. Even if, in fact, the defendants violated treaties or military law, it does not automatically follow that the plaintiffs are entitled to a private cause of action for damages to remedy those illegalities under Bivens. Amici appear to simply assume that if there is no discretion to engage in prohibited conduct then judicial enforcement cannot possibly implicate military affairs or national security issues. But that logic does not stand in the face of decisions like Chappell, 462 U.S. 296, 103 S.Ct. 2362, in which the Supreme Court held that "enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations." 462 U.S. at 305, 103 S.Ct. 2362. Consequently, even if an enlisted person alleged torture and abuse in violation of the Fifth and Eighth Amendments, he could not pursue a Bivens remedy for the illegal conduct — regardless of whether the military officers lacked discretion to torture or abuse him — because the Supreme Court held that "the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel — would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command." Id. at 304, 103 S.Ct. 2362.
[22] The Court agrees with the defendants that creating a Bivens remedy for these plaintiffs would result in an absurdity whereby remedies for constitutional violations that are denied our service men and women by the decisions in Stanley and Chappell would be available to the very enemies against whom those men and women risk their lives to defend our country's sovereignty. Rumsfeld's Mem. Supp. Mot. Dismiss 16. To borrow from the Supreme Court's decision in Eisentrager, "[i]t would be a paradox indeed if what [the cases] denied to Americans it guaranteed to enemies." 339 U.S. at 783, 70 S.Ct. 936.
[23] The propriety of this approach is reinforced by the fact that Congress has twice issued legislation addressing detainee treatment without creating a private cause of action for detainees injured by military officials, which this Court takes to be some indication that Congress' inaction in this regard has not been inadvertent. Nat'l Def. Authorization Act for Fiscal Year 2006, Pub.L. No. 109-163, 119 Stat. 3136, 3474-75 (2006) (codified at 42 U.S.C. § 2000dd) ("Detainee Treatment Act"); Ronald W. Reagan Nat'l Def. Authorization Act for Fiscal Year 2005, Pub.L. No. 108-375, 118 Stat. 1811, 2068-71 (2004) (codified at 10 U.S.C. § 801, stat. note §§ 1091-92) ("Reagan Act"). The mere fact that Congress has not expressly barred a cause of action does not suggest that inferring a judicially-created one is warranted, or even appropriate. Indeed, writing for the majority in Schweiker, Justice O'Conner stated that "[t]he absence of statutory relief for a constitutional violation . . . does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation."487 U.S. at 421-22, 108 S.Ct. 2460.
[24] The plaintiffs' citations to Stevens v. Griffith, 111 U.S. 48, 4 S.Ct. 283, 28 L.Ed. 348 (1884), and American Fed'n of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873 (1946), are inapposite because those cases defined the term

"statute" in the context of legislation authorizing federal courts to act with regard to statutes of States. Thus, the legislation at issue in both cases were wholly distinct from the Westfall Act such that reference to them by analogy is not particularly helpful. The Supreme Court has described treaties in such a way, as to distinguish them from statutes and explained that it is only when a treaty is self-executing that it has the force and effect of legislation. Whitney, 124 U.S. at 194, 8 S.Ct. 456. Otherwise, congressional legislation is required to give effect to the treaty, in which case the Court would be dealing with a de facto "statute" that rendered this discussion unnecessary. Id. With regard to self-executing treaties, the Supreme Court has observed that such treaties are "placed on the same footing, and made of like obligation, with an act of legislation." Id. Note, however, that the Supreme Court went only so far as to say that treaties essentially are "like" a statute, not that they are a statute. Absent some indication from Congress that the term "statute" was intended to apply to treaties, this Court is not at liberty to craft a new exception to the Westfall Act for claims raised under Geneva Convention IV. Smith,499 U.S. at 167, 111 S.Ct. 1180.
[25] The dismissal of all claims against Colonel "Pappas renders his motion to dismiss for lack of personal jurisdiction moot.

 
 Case 1:05-cv-01378-TFH Document 6 Filed 01/05/06 Page 1 of 88

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARKAN MOHAMMED ALI, THAHE MOHAMMED SABAR, SHERZAD KAMAL KHALID, ALI H., NAJEEB ABBAS AHMED, MEHBOOB AHMAD, SAID NABI SIDDIQI, MOHAMMED KARIM SHIRULLAH, and HAJI ABDUL RAHMAN,
Plaintiffs, v.
THOMAS PAPPAS, Defendant.
ARKAN MOHAMMED ALI, THAHE MOHAMMED SABAR, SHERZAD KAMAL KHALID, ALI H., NAJEEB ABBAS AHMED, MEHBOOB AHMAD, SAID NABI SIDDIQI, MOHAMMED KARIM SHIRULLAH, and HAJI ABDUL RAHMAN,
Plaintiffs, v.
DONALD H. RUMSFELD, Defendant.
ARKAN MOHAMMED ALI, THAHE MOHAMMED SABAR, SHERZAD KAMAL KHALID, ALI H., NAJEEB ABBAS AHMED, MEHBOOB AHMAD, SAID NABI SIDDIQI, MOHAMMED KARIM SHIRULLAH, and HAJI ABDUL RAHMAN,
Plaintiffs, v.
JANIS KARPINSKI, Defendant.
ARKAN MOHAMMED ALI, THAHE MOHAMMED SABAR, SHERZAD KAMAL KHALID, ALI H., NAJEEB ABBAS AHMED, MEHBOOB AHMAD, SAID NABI SIDDIQI, MOHAMMED KARIM SHIRULLAH, and HAJI ABDUL RAHMAN,
Plaintiffs, v.
RICARDO SANCHEZ, Defendant.

No. 05-cv-1377 (TFH) No. 05-cv-1378 (TFH) No. 05-cv-1379 (TFH) No. 05-cv-1380 (TFH)

CONSOLIDATED AMENDED COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES

JURY TRIAL DEMANDED

Case 1:05-cv-01378-TFH Document 6 Filed 01/05/06 Page 2 of 88
TABLE OF CONTENTS Page
I. INTRODUCTION .............................................................................................................. 1 II. JURISDICTION AND VENUE ......................................................................................... 5 III. PARTIES ............................................................................................................................ 5
A. PLAINTIFFS .......................................................................................................... 5 B. DEFENDANTS .................................................................................................... 10 IV. LEGAL FRAMEWORK .................................................................................................. 12 V. FACTUAL ALLEGATIONS ........................................................................................... 14 A. GENERAL ALLEGATIONS ............................................................................... 14 B. DEFENDANTS’ ACTIONS AND FAILURES OF COMMAND ...................... 18
1. DEFENDANTS’ INTERROGATION ORDERS, POLICIES AND PRACTICES ............................................................................................. 18
2. DEFENDANTS’ OTHER ORDERS AND AUTHORIZATIONS. ......... 28 C. DEFENDANTS’ KNOWLEDGE OF TORTURE AND ABUSE OF DETAINEES..................................................................................................................... 32
1. KNOWLEDGE AND REASON TO KNOW........................................... 33 2. FAILURE TO PREVENT OR PUNISH ABUSE AND TORTURE ....... 43 D. CONSEQUENCES OF DEFENDANTS’ CONDUCT ........................................ 47 1. PLAINTIFFS INJURED IN AFGHANISTAN AND IRAQ BY
DEFENDANTS’ ACTIONS AND DERELICTIONS ............................. 47 2. DEFENDANTS’ POLICIES, PATTERNS OR PRACTICES CAUSED
WIDESPREAD TORTURE AND ABUSE OF DETAINEES IN AFGHANISTAN AND IRAQ.................................................................. 68 3. DEFENDANTS’ POLICIES, PATTERNS AND PRACTICES CONTINUE .............................................................................................. 75
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TABLE OF CONTENTS (continued)

Page

VI. CLAIMS ........................................................................................................................... 77

First Cause of Action Violation of Fifth Amendment Due Process Clause ................................. 77

Second Cause of Action Violation of the Fifth and Eighth Amendment Prohibition on Cruel and Unusual Punishment ......................................................................................................... 78

Third Cause of Action Torture in Violation of the Law of Nations ............................................. 80

Fourth Cause of Action Cruel, Inhuman or Degrading Treatment in Violation of the Law of Nations .............................................................................................................................. 80

Fifth Cause of Action Violation of the Geneva Conventions ....................................................... 81

Sixth Cause of Action Declaratory Relief for Violation of the Law of Nations, of the Geneva Conventions and of the Constitution................................................................................. 82

VII. PRAYER FOR RELIEF ................................................................................................... 82

VIII. JURY DEMAND .............................................................................................................. 84

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Pursuant to an order of the Judicial Panel on Multidistrict Litigation, 28 U.S.C. § 1407, for pretrial and discovery purposes only, Plaintiffs file this Consolidated Amended Complaint for Declaratory Relief and Damages. I. INTRODUCTION
1. Plaintiffs are individuals who were detained in U.S. military custody in Iraq or Afghanistan where they were subjected to torture and other cruel, inhuman or degrading treatment or punishment, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, confinement in a wooden box, forcible sleep and sensory deprivation, mock executions, death threats, and restraint in contorted and excruciating positions. They were eventually released from detention and never charged with any crime or wrongdoing.
2. The Plaintiffs are among the unknown number of U.S. detainees in Iraq and Afghanistan who have suffered torture and other cruel, inhuman or degrading treatment. All of the plaintiffs bring this action against Defendant Donald H. Rumsfeld, the U.S. Secretary of Defense. Plaintiffs Arkan Mohammed Ali, Thahe Mohammed Sabar, Sherzad Kamal Khalid, Ali H., and Najeeb Abbas Ahmed also bring this action against high-ranking U.S. Army officers Ricardo Sanchez, Janis Karpinski and Thomas Pappas.
3. This lawsuit seeks redress from Defendants because they bear legal responsibility for the policies, patterns, practices, derelictions of duty and command failures that caused Plaintiffs to suffer abuse and physical and psychological injuries.
4. Official government reports have documented, and military officials have acknowledged, the scope and severity of abuses inflicted on detainees in U.S. custody. Such torture and other cruel, inhuman or degrading treatment or punishment of detainees in U.S. custody violates the U.S. Constitution, U.S.-ratified treaties including the Geneva Conventions, military rules and guidelines, the law of nations, and our fundamental values as a nation.
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5. The prohibitions against torture and other cruel, inhuman or degrading treatment are absolute, non-discretionary and subject to no exception. They are designed not only to safeguard the security and dignity of every human being in times of armed conflict, but also to ensure the humane treatment of U.S. soldiers when they are captured on the battlefield by enemy forces.
6. For generations, U.S. civilian and military leaders have sought to ensure that U.S. soldiers comply with legal mandates prohibiting torture and abuse under all circumstances and at all times regardless of whether our enemies respect the same principles. Numerous U.S. military rules, regulations, statutes and manuals governing Plaintiffs’ detention and interrogation unequivocally state that binding international treaties and U.S. law and policy forbid mistreatment. For example, the Army Field Manual governing interrogation “expressly prohibit[s] acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation. Such illegal acts are not authorized and will not be condoned by the U.S. Army.” Military rules specifically define torture to include “infliction of pain through chemicals or bondage,” “forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time,” “food deprivation,” and “any form of beating.”
7. In stark contrast to these mandates and our traditions, the public record shows that detainees in U.S. custody in Iraq and Afghanistan were subjected to unlawful torture and abuse. Those abuses, which pervaded multiple U.S. detention centers in two countries over substantial periods of time, did not spring from the spontaneous acts of individual soldiers. As the official report of former Defense Secretary James Schlesinger concluded, the abuses were “widespread,” and “were not just the failure of some individuals to follow known standards, and
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they are more than the failure of a few leaders to enforce proper discipline. There is both institutional and personal responsibility at higher levels.”
8. This suit alleges that widespread abuse was caused by the orders and derelictions of Defendant Rumsfeld and high-level commanders. First, Defendant Rumsfeld authorized an abandonment of our nation’s inviolable and deep-rooted prohibition against torture and other cruel, inhuman or degrading treatment or punishment of detainees in U.S. military custody. His actions, orders and authorizations relating to interrogation precipitated further violations of law and caused an unlawful policy, pattern or practice of torture and other cruel, inhuman or degrading treatment of detainees, which was furthered and implemented by Defendants Sanchez, Karpinski and Pappas and which caused the torture and abuse of Plaintiffs as part of the widespread pattern of abuse of countless other detainees in Iraq and Afghanistan.
9. In addition to their liability for torture and other abuse caused by their affirmative orders and authorizations, Defendants are also liable on the independent ground that they violated their legal duty to prevent and prohibit torture and other cruel, inhuman or degrading treatment by subordinates when they knew and had reason to know of it. Despite numerous credible reports of torture issued by governmental and non-governmental sources beginning in January 2002 and continuing throughout 2003, 2004, and thereafter, Defendants failed to take the reasonable, necessary, timely or adequate measures against subordinates to prohibit and prevent abuses as required by law. The vast majority of key command officials responsible for widespread and systemic torture and abuse have not been disciplined to this day. Defendants’ failures violate their legal obligations as military commanders. Defendants acted with deliberate indifference to and conscious disregard of the high likelihood that Plaintiffs would be injured.
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10. The abuses at issue here had their genesis in and were continually reinforced by policies, patterns or practices deliberately formulated and adopted in the United States over long periods of time, were inflicted in numerous places over lengthy periods, and injured an unknown number of innocent civilian detainees, including Plaintiffs, who posed no threat to U.S. forces. Plaintiffs, among many others, were injured as a direct and proximate result of Defendants’ conduct.
11. The abuse and torture of Plaintiffs did not occur in the heat of battle or under exigent circumstances. Nor was torture deployed only against carefully selected individuals who possessed critical intelligence information. To the contrary, the International Committee of the Red Cross reported estimates by military intelligence that 70 to 90% of persons detained in Iraq had “been arrested by mistake”; the Army Inspector General estimated that 80% of detainees in Iraq “might be eligible for release” if their cases had been properly reviewed, and an internal military report cited estimates from the field that 85 to 90% of detainees at Abu Ghraib “were of no intelligence value.” U.S. Army officers and assessment teams have variously concluded that 80% of detainees at one facility were “unnecessarily detained and were probably just victims of circumstance”; that detainees “happened to be in the wrong place at the wrong time,” or were “randomly accused of crimes by vindictive neighbors and enemies”; and that U.S. military personnel “were picking up people for anything, just the drop of a hat.”
12. The Defendants’ unlawful policies and practices at issue in this suit, which caused Plaintiffs’ injuries, continue. Thousands of Iraqi and Afghan civilians remain in U.S. military custody or control, and remain subject to the policies and practices at issue here.
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13. Defendants have not been held legally accountable for their acts, omissions and failures of command. Plaintiff have received no redress for their injuries and hence seek (1) a declaration that Defendants’ acts alleged herein are unlawful, and that Defendant Rumsfeld and other Defendants are legally responsible for the violations of law that caused Plaintiffs’ injuries, and (2) damages for the injuries Plaintiffs suffered. II. JURISDICTION AND VENUE
14. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1350 (the Alien Tort Statute), and directly under the Constitution.
15. Venue is proper in the original District Courts in which this action was filed, pursuant to 28 U.S.C. § 1391(b)(1)-(2) and (e). This matter was consolidated and transferred to this Court by the Judicial Panel on Multidistrict Litigation pursuant to 28 U.S.C. § 1407, by an order dated June 17, 2005. III. PARTIES
A. Plaintiffs 16. The Plaintiffs in this action are all former detainees of U.S. military forces
in either Afghanistan or Iraq. Each of the Plaintiffs was tortured and subjected to cruel, inhuman or degrading treatment while in U.S. military custody. Each of the Plaintiffs was eventually released from U.S. custody without ever being prosecuted for any wrongdoing, and without ever receiving any redress for the injuries he suffered as a result of torture and other mistreatment.
17. Plaintiff Arkan Mohammed Ali, age 28, is a citizen of Iraq who was detained by the U.S. military at various locations in Iraq for almost one year, from approximately July 2003 to June 2004. The U.S. military assigned to Plaintiff Arkan M. Ali detainee number 115319. As further detailed below, during his detention by the U.S. military, Plaintiff Arkan M.
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Ali was subjected to torture and other cruel, inhuman or degrading treatment, including but not limited to severe beatings to the point of unconsciousness, stabbing and mutilation, isolation while naked and hooded in a wooden phone booth-sized box, prolonged sleep deprivation enforced by beatings, deprivation of adequate food and water, mock execution and death threats. During relevant time periods, Plaintiff Arkan M. Ali was under the control and authority of Defendants Rumsfeld, Sanchez, Karpinski and Pappas and their subordinates.
18. Plaintiff Thahe Mohammed Sabar, age 37, is a citizen of Iraq who was detained by the U.S. military for about six months from approximately July 2003 to January 2004 at various locations in Iraq. The U.S. military assigned to Mr. Sabar detainee numbers 12538 and 116676. As further detailed below, during his detention by the U.S. military, Plaintiff Sabar was subjected to torture and other cruel, inhuman or degrading treatment, including but not limited to severe beatings, sexual assault and humiliation, deprivation of adequate food and water, intentional prolonged exposure to dangerously high temperatures, mock executions and death threats. During relevant time periods, Plaintiff Sabar was under the control and authority of Defendants Rumsfeld, Sanchez, Karpinski and Pappas and their subordinates.
19. Plaintiff Sherzad Kamal Khalid, age 35, is a citizen of Iraq who was detained by the U.S. military at various locations in Iraq for about two months from approximately July 2003 through September 2003. The U.S. military assigned to Plaintiff Khalid detainee number 12537. As further detailed below, during his detention by the U.S. military, Plaintiff Khalid was subjected to torture and other cruel, inhuman or degrading treatment, including but not limited to frequent and severe beatings, sexual abuse involving assault and threats of anal rape, deprivation of adequate food and water, mock executions, death threats, intentional exposure to dangerously high temperatures, and prolonged sleep deprivation
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enforced by beatings. During relevant time periods, Plaintiff Khalid was under the control and authority of Defendants Rumsfeld, Sanchez and Karpinski and their subordinates.
20. Plaintiff Ali H., age 20, is a citizen of Iraq who was detained by the U.S. military at various locations in Iraq for about four weeks from August to September 2003. At the time of his detention, Plaintiff Ali H. was a minor and high school student. The U.S. military assigned to Plaintiff Ali H. detainee number 14358. As further detailed below, during his detention by the U.S. military, Plaintiff Ali H. was subjected to torture and other cruel, inhuman or degrading treatment, including but not limited to intentional withholding and delay of necessary medical treatment to cause pain, fear, suffering and humiliation; intentional infliction of pain after surgery by dragging him from one location to another and forcefully ripping away the surgical dressing, and by exposing him to infection by leaving his surgical wound halfbandaged; and intentional deprivation of adequate food and water. During relevant time periods, Plaintiff Ali H. was under the control and authority of Defendants Rumsfeld, Sanchez and Karpinski and their subordinates.
21. Plaintiff Najeeb Abbas Ahmed, age 61, is a citizen of Iraq who was detained on two separate occasions by the U.S. military at various locations in Iraq. His first detention lasted from approximately May 2003 to July 2003. His second detention lasted from approximately July 2003 through December 2003. The U.S. military assigned Plaintiff Ahmed detainee numbers 0406855, 16763, and 150533. As further detailed below, during his detention by the U.S. military, Plaintiff Ahmed was subjected to torture and other cruel, inhuman or degrading treatment, including but not limited to: holding a gun to his head; threatening him with death and with life imprisonment at Guantanamo; sexual assault; stepping and sitting on his body while he was in extreme restraints and humiliating him by chanting racial epithets while
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videotaping and photographing him; keeping him in an outdoor cage at temperatures exceeding approximately 120 degrees Fahrenheit despite his suffering from chest pains; intentionally depriving him of sleep for long periods of time; and confiscating medications for his high blood pressure and heart disease and intentionally depriving him of medical care even after he suffered more than one heart attack and a possible stroke in detention. During relevant time periods, Plaintiff Ahmed was under the control and authority of Defendants Rumsfeld, Sanchez, Karpinski and Pappas, and their subordinates.
22. Plaintiff Mehboob Ahmad, approximate age 36, is a citizen of Afghanistan who was detained by the U.S. military at various locations in Afghanistan for approximately five months from June to November 2003. The U.S. military assigned Plaintiff Ahmad detainee number 655 at a detention facility at the U.S. Air Base in Bagram. As further detailed below, during his detention by the U.S. military, Plaintiff Ahmad was subjected to torture and other cruel, inhuman or degrading treatment, including but not limited to directly and deliberately inflicted pain, placement in restraints and positions calculated to cause pain (including suspension from the ceiling by his limbs), intimidation with a vicious dog, questioning while naked, threats directed at his family, and sensory deprivation. During relevant time periods, Plaintiff Ahmad was under the control and authority of Defendant Rumsfeld and his subordinates.
23. Plaintiff Said Nabi Siddiqi, approximate age 49, is a citizen of Afghanistan who was detained by the U.S. military at various locations in Afghanistan for nearly two months, from July to August 2003. The U.S. military assigned Plaintiff Siddiqi detainee number 261 at the U.S. detention facility in Kandahar and number 676 at the Bagram detention facility. As further detailed below, during his detention by the U.S. military, Plaintiff Siddiqi
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was subjected to torture and other cruel, inhuman or degrading treatment, including but not limited to beatings, placement in restraints and positions calculated to cause pain, verbal abuse of a sexual nature, humiliation by being photographed while naked, denial of water, intentional deprivation of necessary medication exacerbated by physical abuse, intentional and prolonged exposure to dangerous temperature extremes, and sleep deprivation. During relevant time periods, Plaintiff Siddiqi was under the control and authority of Defendant Rumsfeld and his subordinates.
24. Plaintiff Mohammed Karim Shirullah, approximate age 46, is a citizen of Afghanistan who was detained by the U.S. military at various locations in Afghanistan for approximately six months, from December 2003 to June 2004. The U.S. military assigned Plaintiff Shirullah detainee number 821 at the Bagram detention facility. As further detailed below, during his detention by the U.S. military, Plaintiff Shirullah was subjected to torture and other cruel, inhuman or degrading treatment, including but not limited to beatings, placement in restraints and positions calculated to cause pain, humiliation by being interrogated and photographed while naked, sensory deprivation and solitary confinement for an extended period, intentional denial of medical care for injuries caused by abuse, intentional and prolonged exposure to dangerous temperature extremes, dousing with cold water, and sleep deprivation. During relevant time periods, Plaintiff Shirullah was under the control and authority of Defendant Rumsfeld and his subordinates.
25. Plaintiff Haji Abdul Rahman, approximate age 49, is a citizen of Afghanistan who was detained by the U.S. military at various locations in Afghanistan for approximately five months, from December 2003 to May 2004. Plaintiff Abdul Rahman was assigned detainee number 819 at the Bagram detention facility. As further detailed below,
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during his detention by the U.S. military, Plaintiff Abdul Rahman was subjected to torture and other cruel, inhuman or degrading treatment, including but not limited to directly and deliberately inflicted pain, humiliation by being questioned and photographed while naked, complete sensory deprivation for 24 hours, solitary confinement, and sleep deprivation. During relevant time periods, Plaintiff Abdul Rahman was under the control and authority of Defendant Rumsfeld and his subordinates.
B. Defendants 26. Defendants Rumsfeld, Sanchez, Karpinski and Pappas are, or were at
relevant times, high-ranking civilian officials or military officers of the United States. Defendants are liable for the injuries suffered by Plaintiffs on two independent grounds. 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.
27. Defendant Donald H. Rumsfeld is, and was at all relevant times, the Secretary of Defense, the highest-ranking civilian official in the U.S. Department of Defense. He exercises command and control over all members of the U.S. military, including all individual military personnel with direct contact with or responsibility for detainees in Iraq and Afghanistan. As Secretary of Defense, Defendant Rumsfeld has command and control of all functions, in the United States and abroad, of the Department of Defense and its component services and agencies, including the Departments of the Army, Navy (including the U.S. Marine Corps) and Air Force, and the Inspector General and General Counsel of the Department of
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Defense. Defendant Rumsfeld is a citizen of the United States and a resident of Illinois, where he maintains his primary residence. He is sued in his individual and official capacities.
28. Defendant Lieutenant General Ricardo Sanchez, of the U.S. Army, served as Commander of the Coalition Joint Task Force-7 (“CJTF-7”), the U.S.-led military coalition in Iraq, from June 2003 to July 2004. As such, he was the highest-ranking U.S. military official in Iraq, with command and control over all U.S. military personnel serving there, including all individual military personnel with direct contact with or responsibility for detainees in Iraq. Lieutenant General Sanchez is a citizen of the United States and maintains his primary residence in Texas. He is sued in his individual capacity for damages.
29. Defendant Janis Karpinski served as the commander of the 800th Military Police Brigade, the unit of the U.S. Army responsible for detention facilities in Iraq, from approximately June 2003 to May 2004. During that time period, she held the rank of Brigadier General in the U.S. Army. She supervised and commanded all U.S. military police personnel in Iraq responsible for the care and control of detainees in U.S. military custody. Defendant Karpinski is a citizen of the United States and maintains her primary residence in South Carolina. She is sued in her individual capacity for damages.
30. Defendant Colonel Thomas Pappas, of the U.S. Army, was at relevant times the commander of the 205th Military Intelligence Brigade, the unit of the U.S. Army responsible for intelligence gathering in Iraq. He took command of the 205th Military Intelligence Brigade on July 1, 2003. In November 2003, he was given command of the Joint Interrogation and Debriefing Center (“JIDC”) at Abu Ghraib. As commander of the 205th Military Intelligence Brigade, Defendant Pappas supervised and commanded all military personnel at Abu Ghraib, including individual military personnel responsible for the
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interrogation of detainees. Defendant Pappas is a citizen of the United States and maintains his primary residence in Connecticut. He is sued in his individual capacity for damages. IV. LEGAL FRAMEWORK
31. Torture and other cruel, inhuman or degrading treatment of detainees are universally prohibited by the laws of all civilized societies. The prohibition against torture is a peremptory jus cogens norm from which no derogation is allowed and it is universally recognized and binding on all persons under all circumstances. As U.S. courts have recognized, the torturer, “like the pirate and slave trader before him,” is “hostis humanis generis, an enemy of all mankind.” Filartiga v. Pena-Irala, 630 F. 2d 876, 890 (2d Cir. 1980). The international law provisions forbidding torture include the Geneva Conventions and the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85, ratified by the United States in 1994. The U.S. Supreme Court recently reaffirmed that torture is among the gravest violations of the law of nations. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2763 (2004).
32. U.S. military law and regulations incorporate these international and domestic prohibitions against the use of torture and other cruel, inhuman or degrading treatment, and obligate U.S. military personnel to abide by those binding norms. During the periods of time relevant to this suit, the governing provisions of the Uniform Code of Military Justice, the Army Field Manual on Intelligence Interrogation, Army Regulations, the Military Police Leaders’ Handbook, and the 2004 Interim Field Manual on Counterinsurgency Operations all prohibited torture and abuse of prisoners and banned many of the specific practices and policies that caused Plaintiffs’ injuries. The universal condemnations of torture have been reiterated by President Bush, who has declared that “the values of this country are such that torture is not a part of our soul and our being.”
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33. No circumstance excuses torture or other cruel, inhuman or degrading treatment. In 1999, the United States declared in its initial report to the U.N. Committee Against Torture:
Torture … is categorically denounced as a matter of policy and as a tool of state authority.… No official of the Government, federal or state, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on ground of exigent circumstances … or on orders from a superior officer or public authority, and the protective mechanism of an independent judiciary are not subject to suspension. 34. The U.S. government has regularly taken official positions condemning the abusive practices suffered by Plaintiffs and has denounced many of the practices as torture. For example, a December 2004 memorandum by the Office of Legal Counsel of the Justice Department emphasized that “[t]orture is abhorrent both to American law and values and to international norms,” and endorsed court decisions that define torture to include many of the abuses to which Plaintiffs were subjected as a result of Defendants’ actions and omissions. The international Convention Against Torture to which the United States is a party defines torture to include many of the abuses suffered by Plaintiffs. The U.S. Department of State has regularly condemned other countries for abuse of prisoners and has identified such practices as beatings, blindfolding, denials of food and water, dog attacks, use of forced painful positions, mock executions, slapping, sleep deprivation, solitary confinement, stripping, exposure to extreme temperatures, and threats of sexual abuse as serious violations of human rights. The United States has condemned as torture the following acts, among others, of the Saddam Hussein regime: denial of food and water, threats to rape or otherwise harm family members and
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relatives, pulling out of fingernails, extended solitary confinement in dark and extremely small compartments, and beatings.
35. In order to ensure that the fundamental protections against torture are enforced, U.S. law, the law of nations, and binding treaty provisions provide for the liability of military or civilian commanders who authorize their subordinates to commit torture or other cruel, inhuman or degrading treatment of prisoners. U.S. civilian and military commanders and officials are liable for injuries caused by their policies and practices. The Fifth and Eighth Amendments to the U.S. Constitution prohibit both torture and other abuse of detainees that shocks the conscience.
36. The law of nations and U.S. law also impose liability on superior officers for the acts of their subordinates under the doctrine of command responsibility as recognized by the U.S. Supreme Court since at least In re Yamashita, 327 U.S. 1 (1946). Commanders are liable for the human rights violations of their subordinates in the chain of command if they (1) exercised effective control over those subordinates; (2) knew or had reason to know of their subordinates’ unlawful conduct; and (3) despite such knowledge, failed to take reasonable and necessary measures to prevent their subordinates’ conduct. V. FACTUAL ALLEGATIONS
A. General Allegations 37. The torture and other cruel, inhuman or degrading treatment suffered by
Plaintiffs and set forth in this complaint occurred in enclaves and facilities under the exclusive and/or effective jurisdiction and control of the United States. At all times relevant to this action, Plaintiffs were detained under the jurisdiction and control of the U.S. military. Access to detainees by any person including agents or employees of other governments and other U.S. government agencies was and is only with the express or tacit permission of the U.S. military.
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38. During the periods of Plaintiffs’ detention and abuse, the United States and the U.S. military under the command of Defendant Rumsfeld exercised control and authority over Iraq and Afghanistan, including under authority conferred by domestic and international law. The U.S. military continues to exercise control over detainees in U.S. military custody in Afghanistan, under authority including an agreement between the U.S. and Afghanistan governing U.S. military operations. The U.S. military continues to exercise control over detainees in U.S. military custody in Iraq, including pursuant to its assertion of legal authority to detain Iraqi nationals on security-related grounds.
39. Defendant Rumsfeld exercised authority over the Coalition Provisional Authority (“CPA”) governing Iraq during periods relevant to this suit. The CPA possessed legislative, executive, and judicial authority in Iraq from April 15, 2003 through at least June 28, 2004, and CPA Administrator Paul Bremer reported to Defendant Rumsfeld. Pursuant to CPA directive, for time periods relevant to this suit and continuing throughout the U.S. military operations in Iraq, U.S. military personnel in Iraq are immunized from legal process in Iraqi courts.
40. Defendant Rumsfeld issued orders, adopted policies, and granted authorizations that foreseeably led to the widespread torture and abuse of detainees, including Plaintiffs. In doing so, he authorized a deviation from the U.S. Armed Forces’ longstanding policies and practices prohibiting torture and other mistreatment. Defendant Rumsfeld also failed to take action to stop and prevent torture and other abuses after he had knowledge that his subordinates were committing or permitting such acts. Through his actions and derelictions, Defendant Rumsfeld expressly permitted cruel, inhuman or degrading treatment or punishment and tolerated or authorized torture. This conduct occurred in the United States.
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41. As a direct and foreseeable result of Defendant Rumsfeld’s policies, practices and authorizations, the U.S. military engaged in practices that violated the absolute prohibition against torture and other cruel, inhuman or degrading treatment that caused the torture and other abuse of Plaintiffs.
42. As a consequence of Defendant Rumsfeld’s actions and on his own initiative, Defendant Sanchez initiated and issued policies and authorizations that expressly permitted cruel, inhuman or degrading treatment and that tolerated or authorized torture. Defendant Sanchez personally promulgated and implemented policies causing, allowing, and failing to prevent or stop torture and abuse in Iraq. He knew and had reason to know of torture and abuse of detainees by his subordinates, but failed to prevent and adequately punish such conduct.
43. As a consequence of Defendant Rumsfeld’s and Defendant Sanchez’s actions and on her own initiative, Defendant Karpinski, who was in command of military police in Iraq, personally executed unlawful policies, patterns or practices causing torture and abuse. She knew and had reason to know of torture and abuse of detainees by her subordinates, but failed to prevent and punish such conduct.
44. As a consequence of Defendant Rumsfeld’s and Defendant Sanchez’s actions and on his own initiative, Defendant Pappas personally executed unlawful policies, patterns or practices causing torture and abuse and personally authorized detainee abuse. He knew and had reason to know of torture and abuse of detainees by his subordinates, but failed to prevent and punish such conduct.
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45. Each of the Defendants knew and had reason to know that his or her actions and failures of duty would foreseeably lead the U.S. military to violate the laws against torture and other cruel, inhuman or degrading treatment.
46. Defendants’ actions and omissions were the proximate cause of the torture and other cruel, inhuman or degrading treatment of Plaintiffs and other detainees in U.S. military custody in Iraq and/or Afghanistan. In that conduct, Defendants acted under color of law beyond the scope of their lawful and delegated authority. In carrying out his or her unlawful policies, patterns, practices and procedures, and in his or her other actions and omissions described above, each of the Defendants violated clearly established constitutional rights and other domestic and international laws, and knew that he or she was doing so.
47. Defendants’ subordinates maliciously and sadistically inflicted unnecessary pain and harm on detainees including Plaintiffs. Defendants could foresee these actions by their subordinates because they had notice that their subordinates in the U.S. military already had been engaging in torture and other cruel, inhuman or degrading treatment before Plaintiffs suffered their injuries. Defendants thus acted with conscious disregard of an excessive risk of harm to Plaintiffs.
48. Defendants’ policies, practices and procedures remain in effect and continue to govern or determine the detention and treatment of detainees in Iraq and Afghanistan. The specific number of detainees presently in U.S. military custody is unknown but is estimated to exceed 14,000 in Iraq and 500 in Afghanistan. The U.S. military continues to seize, detain and interrogate Iraqi and Afghan civilians pursuant to the policies, practices, procedures and omissions of Defendant Rumsfeld and other military personnel under his command that are at issue in this case.
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B. Defendants’ Actions and Failures of Command 1. Defendants’ Interrogation Orders, Policies and Practices 49. Defendant Rumsfeld and other high-ranking military leaders began to
abandon the absolute prohibition against torture soon after the military conflict in Afghanistan began. Defendant Rumsfeld’s policies and practices authorized the use of unlawful interrogation techniques on detainees in U.S. custody in Guantanamo and Afghanistan. Through policies, practices and derelictions of duty that extended those illegal techniques to Iraq, Defendants Rumsfeld, Sanchez, Karpinski and Pappas further violated the prohibitions against torture and other cruel, inhuman or degrading treatment.
50. Defendants are or were at all relevant times personally responsible for developing, authorizing, supervising, and/or implementing the policies, patterns or practices governing the detention and interrogation of detainees in Afghanistan and/or Iraq during the time that Plaintiffs were in the custody of the U.S. military. Defendants authorized interrogation techniques that caused torture and abuse of numerous detainees including Plaintiffs. Defendants adopted policies and practices that allowed or encouraged subordinates to engage in torture and cruel, inhuman or degrading treatment. Defendants instituted or allowed other practices and procedures that foreseeably caused systemic abuses of detainees, including Plaintiffs.
51. Defendant Rumsfeld was directly involved in setting interrogation policies that were contrary to law and military doctrine as early as November 2002. During that month, Defendant Rumsfeld personally approved the use of military dogs to induce fear and to exploit “individual phobias” during the interrogation of a specific detainee at Guantanamo.
52. On December 2, 2002, Defendant Rumsfeld personally approved a list of illegal interrogation techniques (the “December Rumsfeld Techniques”) for use on detainees at Guantanamo.
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53. The December Rumsfeld Techniques were contrary to settled law and military standards governing detention and interrogation as set forth in the Army Field Manual 34-52, which was in effect at all times relevant to this suit. The December Rumsfeld Techniques included the following: the use of “stress positions,” 20-hour interrogations, the removal of clothing, playing upon a detainee’s phobias to induce stress (such as through the use of dogs), deception to make the detainee believe the interrogator was from a country with a reputation for torture, the use of falsified documents and reports, isolation for up to 30 days, and sensory deprivation.
54. Approximately one month before Defendant Rumsfeld approved the December Rumsfeld Techniques, senior U.S. military officers had expressed “serious reservations” about the legality of the same techniques when they were proposed by an intelligence task force at Guantanamo.
55. Senior members of the U.S. military, including the General Counsel of the Department of the Navy, were critical of the legality of the December Rumsfeld Techniques ultimately approved by Defendant Rumsfeld.
56. On January 15, 2003, Defendant Rumsfeld rescinded his blanket authorization for some of the techniques in the December Rumsfeld Techniques. However, in an order to the commander of the U.S. Southern Command, Defendant Rumsfeld stated that he personally could authorize the continued use of the otherwise-rescinded techniques, and that he wanted to be involved in the formulation of a plan to use them. His order provided: “Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me. Such a request should include a thorough
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justification for the employment of those techniques and a detailed plan for the use of such techniques.”
57. Defendant Rumsfeld’s Guantanamo interrogation policies, which deviated from existing laws on detainee treatment, along with his pressure on subordinates for more intelligence, were also applied in Afghanistan. Upon information and belief, U.S. commanders in Afghanistan were instructed that “doctrinal approaches to ‘EPW’ or ‘Detainee’ operations” were not “tak[ing] full advantage of the various policies adopted by civilian leadership to deal with the unique nature of this unconventional operation.” An official military investigation later concluded that a number of the December Rumsfeld Techniques developed for use in Guantanamo had “migrat[ed]” to Afghanistan.
58. On January 15, 2003, Defendant Rumsfeld directed the General Counsel of the Department of Defense to convene a “Working Group” on interrogation techniques for his personal review and consideration. Defendant Rumsfeld had extensive personal involvement in the Working Group, and dictated the composition of its membership.
59. The Working Group solicited and obtained information from U.S. military officers in Afghanistan concerning techniques being used by U.S. forces there. By this time, interrogators in Afghanistan were using harsh interrogation techniques on detainees, including the use of stress positions, dogs to induce fear, and sleep and sensory deprivation. These techniques violated U.S. and international law and were inconsistent with the governing Army Field Manual 34-52. The Working Group did not express any objection to any of the techniques in use in Afghanistan.
60. Reports of widespread and systemic detainee abuse in Afghanistan had already been raised by this time. Among other things, two Afghan detainees had died while in
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U.S. military custody at Bagram in December 2002. Defendant Rumsfeld knew and had reason to know that the deaths had been deemed homicides, and that other detainee abuses had been reported.
61. Upon information and belief, despite the evidence of detainee abuses in Afghanistan, neither Defendant Rumsfeld nor any of his subordinate officials at the Defense Department in the United States objected to any of the interrogation techniques in use in Afghanistan. Because of the lack of objection, the U.S. military commanders in Afghanistan considered the techniques to be “approved policy,” and U.S. personnel continued to use those techniques despite their inconsistency with standing military doctrine and international and domestic law.
62. Defendant Rumsfeld’s Working Group produced a series of draft reports, including proposed interrogation techniques. Upon information and belief, the Working Group was instructed to accept as binding and controlling authority the legal analysis set forth by the Office of the Legal Counsel (“OLC”) of the Justice Department on all legal issues concerning techniques that would constitute torture or cruel inhuman or degrading treatment under U.S. and international law. The OLC analysis adopted a definition of torture contrary to U.S. and international law. Upon information and belief, the Working Group was prohibited from developing its own analysis regarding the legality of proposed interrogation techniques. Upon information and belief, the OLC analysis was set forth in memoranda dated August 1, 2002, and March 14, 2003. The Justice Department has since withdrawn the OLC memorandum of August 1, 2002, and issued a new analysis in December 2004, superseding the August 1, 2002, OLC memorandum in its entirety.
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63. Top-ranking military attorneys of the Judge Advocate General Offices of every branch of the U.S. Armed Forces objected to the OLC’s legal analysis on the ground that it violated U.S. and international law; that the legal analysis was inconsistent with existing U.S. military training; that the erosion of existing standards would put U.S. soldiers at risk of abuse; that following the OLC analysis would expose U.S. officers and soldiers to criminal and civil liability; and that the interrogation methods suggested would be of “questionable practical value in obtaining reliable information.”
64. On April 4, 2003, the Working Group issued its final report to Defendant Rumsfeld. The final report included interrogation techniques that had been submitted by commanders in Afghanistan. The Working Group’s April 4 Report recommended 35 interrogation techniques for use at Guantanamo. On April 16, 2003, Defendant Rumsfeld personally approved the use of 24 of the techniques (the “April Rumsfeld Techniques”).
65. The April Rumsfeld Techniques authorized isolation, dietary manipulation, environmental manipulation, “sleep adjustment,” and “false flag” (leading detainees to believe that the interrogator is from a foreign country and will engage in torture). None of these techniques were authorized by the governing Army Field Manual 34-52. Defendant Rumsfeld again provided that even harsher techniques could be used with his personal authorization.
66. Terms like “environmental manipulation,” “stress positions,” “sleep adjustment,” and other terms in the December Rumsfeld Techniques or in other interrogation policies were deployed knowingly as euphemisms for torture and cruel, inhuman and degrading treatment, including extended sleep deprivation. Subordinates understood those authorizations to include practices such as keeping detainees in ice water near the point of death by hypothermia,
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using strobe lights and music to disorient detainees, and using large dogs to terrify blindfolded detainees.
67. After the beginning of the Iraq war, the unlawful interrogation techniques embodied in the December and April Rumsfeld Techniques spread to Iraq. General Paul Kern of the U.S. Army, who undertook a military investigation into the Abu Ghraib prison scandal, stated that the proliferation of techniques in the various theaters of war “became confusing” and that Defendant Rumsfeld’s interrogation techniques for Guantanamo were found on the computers of U.S. Army personnel at Abu Ghraib prison in Iraq. Military intelligence soldiers stationed at Abu Ghraib prison were “looking at Guantanamo Bay and Afghanistan as a model” for interrogation techniques.
68. Upon information and belief, Under Secretary of Defense Stephen Cambone supervised and implemented, and Defendant Rumsfeld approved, the activities of a clandestine program composed jointly of U.S. military and CIA personnel for operation in Iraq in or around the summer of 2003. Upon information and belief, members of this program were authorized to use unlawful interrogation tactics, including physical abuse and sexual humiliation, against Iraqi detainees.
69. In the summer of 2003, in anticipation of obtaining approval for harsher interrogation practices, a member of Defendant Sanchez’s staff transmitted an email message asking military intelligence personnel in Iraq to provide a “wish list” of interrogation techniques they wished to use. The email stated the “gloves are coming off,” and “we want these individuals broken.” Defendant Sanchez knew and had reason to know of the email message and did not prevent its transmittal or countermand it after it was sent.
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70. U.S. military interrogators reasonably understood this email request as permission from command headquarters to use harsh interrogation methods, and engaged in unlawful mistreatment of detainees as a direct result of the email. Upon information and belief, on the same day the email request was sent from Defendant Sanchez’s staff, intelligence officials at one of the U.S. detention centers in Iraq responded with a list of interrogation techniques. The list included open-hand strikes, closed-fist strikes, low-voltage electrocution, techniques intended to induce claustrophobia, and techniques intended to induce muscle fatigue. Defendant Sanchez used this list, among other things, to develop interrogation policy in Iraq.
71. In August and September 2003, Defendant Rumsfeld sent Major General Geoffrey Miller, the commander of the U.S. military joint task force at Guantanamo, to Iraq to deploy more aggressive interrogation methods on a widespread basis. The purpose of sending Miller to Iraq was “to make certain that [the United States] had the proper conditions within [detention facilities in Iraq] in order for … information to be gathered.” Miller was sent by Defendant Rumsfeld and his Under Secretary to “gitmo-ize” detention facilities in Iraq by importing Guantanamo interrogation practices.
72. Defendant Rumsfeld sent Major General Miller to Iraq despite Miller’s record of authorizing abuse and tolerating torture of detainees at Guantanamo. Before Miller’s mission to Iraq, his subordinates at Guantanamo had engaged in unlawful interrogation practices so extreme that agents of the FBI who had witnessed the interrogations formally presented concerns and objections to Miller.
73. Upon information and belief, Defendant Rumsfeld knew and intended that Miller would apply in Iraq the techniques that Defendant Rumsfeld had approved for use at Guantanamo as well as other abusive policies and practices. Upon information and belief,
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Defendant Rumsfeld also knew and had reason to know about the widespread detainee torture and other cruel, inhuman and degrading treatment of detainees at Guantanamo and in Afghanistan that had resulted from his policies and practices.
74. As a result of the order by Defendant Rumsfeld, Major General Miller and his team caused illegal interrogation techniques from Guantanamo to be adopted as practices and policies for detainees in Iraq. Miller’s team consisted of 17 military personnel, all of whom had served at Guantanamo. Miller and his team used the April Rumsfeld Techniques as a “baseline” for recommending new, harsher interrogation techniques for use at the U.S. detention facility at Abu Ghraib in Iraq.
75. According to Defendant Pappas, detainee policies and procedures at Abu Ghraib were enacted as a specific result of Major General Miller’s mission. Major General Miller told Defendant Karpinski that detainees at Guantanamo were “treated like dogs,” and that he recommended the same for detainees in Iraq. Defendant Sanchez had given Major General Miller complete authority to take over any detention facility he wanted to implement his policies and practices.
76. Based on Major General Miller’s recommendation, Defendant Pappas instituted the use of dogs for the purpose of instilling fear in detainees to “set[ ] the atmosphere” for obtaining information from detainees. Upon information and belief, Defendant Pappas told a sergeant at Abu Ghraib that the use of dogs to intimidate detainees was “good to go.” That sergeant and another soldier subsequently used military dogs to terrify and abuse detainees, including two juveniles.
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77. Defendant Karpinski carried out the plans of Defendant Sanchez and Major General Miller to “gitmo-ize” Abu Ghraib and abdicated her duty as a commander to prevent torture and other cruel, inhuman or degrading treatment.
78. Defendants also engaged in a pattern, policy and practice of transferring Army personnel known to have engaged in torture and cruel, inhuman or degrading treatment from Afghanistan to Iraq, which led to further “migration” of illegal interrogation or detention techniques. Defendants Rumsfeld and Sanchez knowingly permitted the transfer of Army units known to have engaged in the torture of detainees, from one theater of war to another, without preventing or punishing perpetrators of torture and without taking adequate and effective measures to prevent further abuses.
79. For example, in early 2003, Captain Carolyn Wood and members of the 519th Military Intelligence Battalion under her command were transferred from Afghanistan to Iraq, and in July 2003, Captain Wood and her battalion were assigned to Abu Ghraib. Previously, while deployed in Afghanistan, members of the 519th Military Intelligence Battalion under Wood’s command had been involved in the killing of two detainees.
80. During 2003, Defendant Sanchez’s staff approved techniques for use in Iraq that were being used at the time by U.S. military forces in Afghanistan. Upon information and belief, the approved techniques included stress positions, sensory and sleep deprivation, and use of dogs.
81. On September 14, 2003, Defendant Sanchez signed a memorandum authorizing the use of 29 interrogation techniques (the “September Sanchez Techniques”). Defendant Sanchez issued the September Sanchez Techniques a few days after Defendant Rumsfeld visited the U.S. detention facility at Abu Ghraib.
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82. At least 12 of the September Sanchez Techniques were unlawful and contrary to existing Army interrogation manuals and five went beyond even those authorized by Defendant Rumsfeld for use at Guantanamo. The September Sanchez Techniques included the use of dogs to exploit “Arab fear of dogs,” isolation, stress positions, sleep deprivation, and environmental manipulation. Some techniques, including the use of dogs, stress positions, yelling, loud music, and light control required Defendant Sanchez’s personal approval.
83. The September Sanchez Techniques were based on sources that included the April Rumsfeld Techniques and techniques used in Afghanistan that had resulted in torture and abuse and “wish lists” of techniques proposed by U.S. intelligence officials in Iraq.
84. The September Sanchez Techniques were implemented immediately even though the U.S. Central Command (“CENTCOM”) had not approved them. When CENTCOM military attorneys subsequently rejected many of the techniques, Defendant Sanchez modified his previous authorization of particular techniques but continued to authorize interrogators to “control” the lighting, heating, food, shelter, and clothing given to detainees. He placed limited restrictions on the use of dogs but continued to permit the use of dogs in interrogations with prior authorization on a case-by-case basis. Defendant Sanchez later denied approving techniques that he had authorized in his September memorandum.
85. As a result of the proliferation of interrogation memoranda issued by Defendant Sanchez, military interrogators in Iraq became increasingly confused about the legal limits of their conduct toward detainees. This confusion, created by Defendant Sanchez, caused the torture and cruel, inhuman or degrading treatment of detainees.
86. Defendant Pappas authorized interrogation techniques while in command at the Abu Ghraib prison that included, upon information and belief, sleep deprivation, use of
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dogs to intimidate detainees, shackling, and forced stripping of detainees. Defendant Pappas placed no restrictions on how techniques such as “sleep management” were to be implemented. Moreover, he knew and had reason to know that soldiers at Abu Ghraib were engaging in abusive treatment of detainees. Under such circumstances, it was highly foreseeable to Defendant Pappas that soldiers would implement “sleep management” measures through torture and cruel, inhuman or degrading treatment, such as beatings, chilling with cold water, and nudity.
2. Defendants’ Other Orders and Authorizations 87. In addition to authorizing unlawful interrogation techniques and practices, Defendants authorized nondoctrinal command structures, failed to provide adequate training and created intense pressure for intelligence. Defendants engaged in these acts even though it was highly foreseeable to them, in light of their knowledge of ongoing detainee abuse, that their acts would cause the torture and other cruel, inhuman or degrading treatment of detainees, including Plaintiffs. 88. At the direction of the Department of Defense, Army Brigadier General Charles H. Jacoby, Jr., conducted an investigation into all detention operations in Afghanistan. Upon information and belief, his official report concluded that there was a lack of clear military rules and training in U.S. detention facilities in Afghanistan. 89. An official report by U.S. Army Major General George Fay found that, among other factors, “inadequate interrogation doctrine and training,” the “lack of clear lines of responsibility between the MP and MI chains of command,” the “lack of a clear interrogation policy for the Iraq Campaign,” and “intense pressure felt by the personnel on the ground to produce actionable intelligence from detainees” resulted in the abuse of detainees in Iraq. The
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Defendants individually and together are responsible for injuries caused by the nondoctrinal command structures, the lack of training and the pressure for intelligence.
90. Among the nondoctrinal command structures Defendants instituted was ordering military intelligence and military police work together to “set the conditions for interrogations.”
91. Defendant Sanchez appointed Defendant Pappas of the 205th Military Intelligence Brigade as the base commander for Abu Ghraib prison, and made him responsible for the support of all military police assigned to the prison. In November 2003, control of Abu Ghraib was transferred from military police to military intelligence command. Defendant Karpinski acquiesced in the transfer that put military intelligence operatives in control of conditions at Abu Ghraib, despite her admission that she lacked the authority to do so.
92. The use of military police soldiers for interrogation was improper and done for the purpose of inflicting abuse on detainees to make them compliant during interrogation. Military intelligence officers told military police soldiers, who were untrained in detainee interrogation tactics, to “make sure” that a detainee “has a bad night,” or “make sure he gets the treatment.”
93. Patterns, practices and policies of misusing military police to abuse prisoners were pervasive throughout Iraq. A U.S. soldier stated: “I’ve seen this behavior throughout the country of Iraq, and Military Police could be very useful. They could roughen up the detainees. If they didn’t want their prisoner to sleep, then they wouldn’t sleep. If they didn’t want them to eat, they wouldn’t eat. They would confuse their time schedule. And this escalated all the way to nudity, to sexual innuendo, to make them fear that rape or other sexual acts could be performed on prisoners, to beatings, to dogs let loose in the room, and various other things.”
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94. Defendant Pappas ordered military police soldiers under Defendant Karpinski’s command at Abu Ghraib to alter detainees’ diets, to play loud music to disturb detainees’ sleep patterns, and to implement other techniques requested by military intelligence soldiers. Defendant Pappas encouraged soldiers under his command to “soften up” detainees for interrogation, which they understood to mean physical and mental abuse. Upon information and belief, Defendant Pappas and/or officers directly under his command issued orders through written memoranda to the noncommissioned officer in charge of the Abu Ghraib hard site. These orders from military intelligence “took away from normal health and welfare for the inmates.”
95. From the outset of and throughout the military actions in Afghanistan and Iraq, Defendants also knowingly failed to provide for adequate training of U.S. military personnel charged with the detention and interrogation of detainees. Defendants failed to ensure that military personnel knew that torture and abuse of detainees are prohibited under military law and policy. Defendants knew and had reason to know that the lack of training created a permissive environment in which their subordinates believed that abuse of detainees would be tolerated or approved. Defendants’ failures constituted a willful tolerance of and deliberate indifference to conditions that they knew and had reason to know would lead to torture and other cruel, inhuman or degrading treatment.
96. Upon information and belief, members of the 519th Military Intelligence Battalion arriving in Afghanistan in July 2002 failed to receive adequate training and guidance and interrogators at the Bagram detention facility were not prepared to run a military operation. Upon information and belief, the commander of the Military Intelligence Battalion at Bagram
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sought “additional legal guidance” from superiors on permissible interrogation techniques and did not receive it.
97. Defendant Karpinski failed to ensure that even her top-ranking subordinates, much less those soldiers with direct contact with detainees, were aware of basic laws governing detainee operations. One company under Defendant Karpinski’s command wrote its own standard operating procedures for detainee operations because of a complete lack of training and guidance, despite the commander’s admission that the company was completely unqualified to do so. According to Lieutenant Colonel Gary Maddocks, Executive Officer of the 800th Military Police Brigade during relevant time periods, the torture at Abu Ghraib likely would not have occurred if military leaders had placed proper emphasis on the Geneva Conventions.
98. Defendant Pappas failed to ensure that even his top-ranking subordinates, much less those soldiers with direct contact with detainees, were aware of the basic laws governing detention and interrogation. A senior military intelligence officer under the command of Defendant Pappas was confused about whether the Geneva Conventions applied to “security detainees” in Iraq who were not “enemy prisoners of war” and did not understand the basic provisions of binding laws on interrogation.
99. Defendants also placed intense pressure on subordinates to produce intelligence through detainee interrogations. An official government report has pointed to “intense pressure felt by the personnel on the ground to produce actionable intelligence from detainees” as a cause of the torture and other cruel, inhuman or degrading treatment.
100. Upon information and belief, Defendant Rumsfeld pressured Defendant Sanchez and other subordinates to produce actionable intelligence from detainees at Abu Ghraib.
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Defendant Pappas was subjected to “intense pressure” placed on him by superior officers, including Defendant Sanchez, “for intelligence from interrogations.” Defendant Pappas in turn put great pressure on his subordinates for intelligence. This pressure for intelligence led to torture of detainees. For example, members of the 82nd Airborne Division in Iraq admitted that the unit’s soldiers engaged in actions constituting torture and abuse of detainees because of the pressure for intelligence.
C. Defendants’ Knowledge of Torture and Abuse of Detainees 101. Prior to, during, and after Plaintiffs’ detention, Defendants knew and had
reason to know that their subordinates in Iraq and Afghanistan were committing torture and cruel, inhuman and degrading treatment, in violation of U.S. and international law.
102. During relevant time periods, Defendants were informed of the widespread abuse of detainees through reports of the International Committee of the Red Cross and other nongovernmental organizations and through reports or complaints conveyed by U.S. government and military personnel. Many of these reports and complaints of abuse are documented in government records released pursuant to litigation under the Freedom of Information Act, and additional documents continue to be disclosed.
103. Despite knowing or having reason to know of the widespread torture and abuse of detainees, Defendants failed to take timely and effective measures to prohibit, prevent and punish such practices and to punish or discipline the perpetrators and responsible commanders, who were all under Defendants’ actual or effective command. Defendants had an actual opportunity and a legal duty to prevent abuses by their subordinates before Plaintiffs were injured, yet failed to take the necessary and required action. As a direct and foreseeable result, Plaintiffs suffered torture and other cruel, inhuman or degrading treatment.
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104. The reported prosecutions of military personnel who committed torture and other abuses have focused on low-ranking perpetrators. Defendants have failed to punish or to take timely and effective measures against commanders who had a legal obligation to prevent and to stop the abuse but failed to do so. Furthermore, the actions against low-level perpetrators and any other subordinates were taken too late – months or years after Defendants knew and had reason to know of the abuse. Because Defendants did not take timely and effective measures to punish or otherwise prevent violations by the perpetrators or other subordinates, U.S. military personnel continued to engage in widespread abuse, and numerous individuals, including Plaintiffs, were subjected to torture and other abuse.
1. Knowledge and Reason to Know 105. Among the reasons why Defendants knew or had reason to know of torture and cruel, inhuman or degrading treatment of detainees in U.S. military custody are the following: 106. In December 2001, John Walker Lindh, a U.S. citizen arrested and detained by the U.S. military in Afghanistan, was photographed while stripped naked and bound to a stretcher. 107. In or about early 2002, soon after the start of military actions in Afghanistan, Defendant Rumsfeld had actual notice of allegations of torture and other abuse of detainees arrested by U.S. forces in Afghanistan. 108. On January 7, 2002, the non-governmental organization Amnesty International wrote a letter to Defendant Rumsfeld expressing concern about the treatment of detainees captured in Afghanistan. The letter noted that “as well as hooding, the following methods of interrogation may not be used as they violate the prohibition of torture and illtreatment: restraining in very painful conditions; playing of loud music; prolonged sleep
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deprivation; threats, including death threats; violent shaking; and using cold air to chill the detainee.”
109. On January 22, 2002, Amnesty International sent another letter to Defendant Rumsfeld, complaining about the treatment of detainees.
110. On April 10, 2002, Amnesty International again sent a lengthy memorandum to Defendant Rumsfeld, among others, in order to bring attention to allegations of mistreatment of detainees in Afghanistan and at Guantanamo. Defendant Rumsfeld was questioned about the April 10, 2002, Amnesty International memorandum during a news briefing on April 15, 2002.
111. On information and belief, in late 2002, a high-ranking Defense Department official who reported directly to Defendant Rumsfeld received complaints from agents of the FBI about abusive interrogation tactics used against detainees at Guantanamo. Upon information and belief, FBI agents witnessed military personnel at Guantanamo subjecting detainees to sexual humiliation, using dogs to intimidate detainees, and placing detainees in isolation to an abusive extent. Upon information and belief, Defendant Rumsfeld was aware of these complaints.
112. In August 2002, the Army Criminal Investigations Command found probable cause to charge a team of four U.S. military personnel with the murder of an Afghan detainee in U.S. custody and a conspiracy relating to the murder. The Criminal Investigations Command also found probable cause to charge a fifth U.S. soldier with being an accessory after the fact, and found that the team’s commander had instructed a soldier to destroy incriminating photographs of the victim’s body. Despite the Criminal Investigations Command’s findings, the
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Commander’s Report recorded no court-martial proceedings in the case and no disciplinary action other than a single written reprimand of one soldier.
113. Upon information and belief, prior to December 2002, the International Committee of the Red Cross specifically expressed concern to U.S. military commanders at the Bagram detention facility that U.S. military personnel were shackling detainees in fixed positions.
114. On December 26, 2002, the Washington Post reported on regular, systemic abuses at the U.S. detention facility in Bagram, Afghanistan, including the use of “stress and duress” techniques that constitute torture and other cruel, inhuman or degrading treatment, and the use of U.S. military personnel to “soften up” detainees for interrogation. Discussing the interrogation of detainees at the U.S. military base by agents of the Central Intelligence Agency, the article quoted a U.S. government official as follows: “[I]f you don’t violate someone’s human rights some of the time, you probably aren’t doing your job.”
115. In December 2002, two Afghan detainees, Mullah Habibullah and Dilawar, were killed in U.S. custody at the Bagram detention facility while being interrogated by members of the 519th Military Intelligence Battalion. Both men were chained to the ceiling by their wrists in isolation cells. Upon information and belief, they were both severely beaten by U.S. military personnel. Upon information and belief, the chaining of prisoners to the ceilings of isolation cells for long periods of time was a standard practice well known to U.S. military officers at Bagram in 2002. Although U.S. military physicians concluded that the cause of the detainees’ deaths was homicide, the commander of U.S. military forces in Afghanistan continued to insist publicly that the two detainees had died of natural causes.
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116. On December 26, 2002, the nongovernmental organization Human Rights Watch wrote to President Bush and transmitted a copy of the letter to Defendant Rumsfeld, asking that allegations of torture at the Bagram detention facility in Afghanistan be investigated immediately.
117. On January 14, 2003, executive directors of various human rights organizations wrote to Deputy Secretary of Defense Paul Wolfowitz and asked that the United States promulgate clear guidelines to prevent torture. Upon information and belief, Defendant Rumsfeld received notice of that letter.
118. On February 5, 2003, Amnesty International met with William J. Haynes, the General Counsel of the Department of Defense, to discuss allegations of torture and illtreatment of detainees in Guantanamo and Afghanistan. Upon information and belief, the General Counsel of the Department of Defense reports directly to Defendant Rumsfeld.
119. In March 2003, prominent newspapers such as the New York Times, Los Angeles Times, Wall Street Journal, and Atlanta Journal-Constitution published articles on persistent reports of serious human rights violations at detention centers at Guantanamo and in Afghanistan, including deaths of detainees under suspicious circumstances in Afghanistan.
120. On March 10, 2003, Amnesty International sent a letter to President Bush, with a copy to Defendant Rumsfeld, calling upon the U.S. government to investigate allegations of torture and other abuse at the Bagram detention facility. The letter described specific cases of abuse.
121. On April 30, 2003, Defendant Rumsfeld visited Basra, Baghdad, and Abu Ghraib in Iraq. While in Iraq, Defendant Rumsfeld met with U.S. military officers and, upon information and belief, discussed the treatment of detainees in Iraq.
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122. On May 1, 2003 Defendant Rumsfeld visited Afghanistan and met with Lieutenant General McNeill, the commander of U.S. and coalition forces. By that time, Lieutenant General McNeill was fully aware of the abuse of detainees at the Bagram detention facility, including abuse resulting in the murder of two Afghan detainees by U.S. forces.
123. Starting in May 2003, the International Committee of the Red Cross began sending reports detailing abuses of detainees in U.S. custody in Iraq to the U.S. Central Command in Qatar. The May 2003 report described 200 allegations of torture and other abuse of detainees by U.S. soldiers. The medical delegate of the International Committee of the Red Cross observed marks on the detainees’ bodies that corroborated the allegations of abuse.
124. General John Abizaid, the commander of the U.S. Central Command, confirmed that his office received the report in May 2003.
125. U.S. Secretary of State Colin Powell confirmed that Defendant Rumsfeld knew of the various reports by the International Committee of the Red Cross, stating that he and Defendant Rumsfeld kept President Bush regularly apprised of their contents throughout 2003.
126. On May 15, 2003, Amnesty International publicized allegations of torture and other abuse of Iraqi detainees by U.S. and British forces, including beatings and electric shocks.
127. On June 23, 2003, Amnesty International sent a letter to Defendant Rumsfeld expressing concern about the death of an Afghan detainee held in U.S. custody.
128. In June 2003, Amnesty International wrote to Ambassador Paul Bremer, then the Administrator of the Coalition Provisional Authority governing Iraq, to express its concerns about the treatment of detainees in U.S. custody in Iraq. Bremer met regularly with
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Defendant Sanchez during that time period to discuss detainee issues, including issues relating to detention conditions.
129. In early July 2003, the International Committee of the Red Cross sent U.S. military forces in Iraq a working paper detailing approximately 50 allegations of abuse and violence against detainees in Iraq. Among the abuses detailed in the report are the following: striking detainees with rifle butts, taking aim at detainees with rifles, slaps, punches, prolonged exposure to the sun, isolation in dark cells, and threats of indefinite detention or detention of family members.
130. On July 15, 2003, the late Sergio Vieira de Mello, then the U.N. High Commissioner for Human Rights, raised concerns regarding the treatment of detainees in U.S. custody with Ambassador Bremer.
131. Upon information and belief, Ambassador Bremer met with Defendant Rumsfeld in August 2003 and repeatedly urged him to improve conditions in U.S.-controlled detention facilities in Iraq.
132. Upon information and belief, during 2003, U.S. officials from the State Department and the Coalition Provisional Authority appealed to high-level U.S. military officials to stop detainee abuse.
133. On July 23, 2003, Amnesty International released a second report criticizing the United States for mistreatment of detainees in Iraq. Allegations included the use of electric shocks, sleep deprivation, and stress positions. Major newspapers, including the New York Times, reported on Amnesty International’s allegations.
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134. On September 5, 2003, Defendant Rumsfeld visited the 4th Infantry Division and 101st Airborne in Iraq and met with Defendant Sanchez in Baghdad. During this time, Defendant Sanchez was developing a harsher interrogation policy for Iraq.
135. Defendant Rumsfeld personally visited Abu Ghraib prison on September 6, 2003, while Major General Miller was there to implement interrogation techniques and while abuses were taking place. Photographs depicting Defendant Rumsfeld at the prison and meeting with Defendant Karpinski were published in the New York Times. Official U.S. military investigations have found that during the time of Defendant Rumsfeld’s visit, military intelligence personnel at Abu Ghraib were requesting and encouraging military police personnel to abuse detainees in violation of established policies and laws.
136. Upon information and belief, when Major General Miller returned from Iraq in September 2003, he provided briefings and recommendations on intelligence activities in Iraq to senior advisers to Defendant Rumsfeld, including Deputy Secretary of Defense Paul Wolfowitz and the Under Secretary of Defense for Intelligence, Stephen A. Cambone.
137. Shortly after the visits of Defendant Rumsfeld and General Miller to Abu Ghraib, the International Committee of the Red Cross visited Abu Ghraib in October and determined that detainees in U.S. custody were being subjected to “physical and psychological coercion” which was in some cases “tantamount to torture.” The abuses witnessed by the International Committee of the Red Cross included: threats, sleep deprivation, tight handcuffs that caused lesions and wounds, and holding of detainees in total darkness in bare concrete cells, while completely naked. U.S. military personnel told representatives of the International Committee of the Red Cross that such treatment was “part of the process.” During this visit, the International Committee of the Red Cross found that detainees at Abu Ghraib had physical signs
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of injury and psychological symptoms such as suicidal tendencies, memory loss, and acute anxiety reactions.
138. The International Committee of the Red Cross conveyed its concerns to U.S. military commanders in Iraq through reports and briefings in October and November 2003. Defendants Karpinski, Pappas and Sanchez were notified in writing and otherwise of the details of abuse by the Red Cross by November 2003.
139. In response to the International Committee of the Red Cross’s oral and written reports of torture and other unlawful abuses in October and November 2003, Defendant Pappas revoked the International Committee of the Red Cross’s access to interrogation areas and denied the International Committee of the Red Cross’s requests to interview specified detainees. Defendant Sanchez’s staff approved those denials of access. Despite these notices of their subordinates’ unlawful conduct, Defendant Sanchez, Karpinski and Pappas did not do anything to stop the torture and other unlawful abuses.
140. Defendant Karpinski responded to the International Committee of the Red Cross November 2003 report in a letter dated December 24, 2003. According to an official investigative report by Major General George Fay, Defendant Karpinski’s response “gloss[ed] over, close to the point of denying[,] the inhumane treatment, humiliation, and abuse identified by the [International Committee of the Red Cross].”
141. A senior Defense Department official has stated that if military officers in Iraq had responded properly to the reports of the International Committee of the Red Cross, “some of the abuses might not have happened.” Each of the Defendants had a duty to respond properly but failed to do so. Defendant Rumsfeld was aware of the contents of the reports of the International Committee of the Red Cross.
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142. On November 12, 2003, the Lawyers Committee for Human Rights (now known as Human Rights First) wrote to the commander of U.S. forces in Afghanistan and transmitted a copy to Defendant Rumsfeld, requesting information about the current status of military investigations into the deaths of three detainees who died in U.S. custody in Afghanistan.
143. Upon information and belief, on November 14, 2003, Amnesty International wrote a letter to Defendant Rumsfeld concerning reports of abuse of Iraqi detainees by the U.S. military.
144. Between December 2003 and March 2004, military reports were issued regarding detainee abuse in Iraq. Some or all of these reports were transmitted to Defendant Sanchez and were forwarded by him to his superior officers.
145. Upon information and belief, throughout the period of time prior to January 2004 and thereafter, Defendants Sanchez, Karpinski and Pappas were personally present at Abu Ghraib and witnessed abuse of detainees. A military lawyer asserted that Defendant Sanchez was personally present at Abu Ghraib during interrogations and may have witnessed abuse.
146. Upon information and belief, Defendant Pappas was frequently present at Abu Ghraib during relevant time periods, resided at the Abu Ghraib facility for some period of time, and was present in a cellblock at Abu Ghraib on the night a detainee was killed during interrogation.
147. During that time, it was common knowledge among soldiers and officers that detainees were kept naked or in women’s underwear. Lieutenant Colonel Steve Jordan, who reported directly to Defendant Pappas, was aware of the nude detainees and told military police
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soldiers that nudity and issuance of women’s underwear to male detainees was an interrogation technique. During the same time period, there were persistent and widespread rumors among soldiers and officers at Abu Ghraib that detainees were being physically and mentally abused. Military intelligence soldiers under Defendant Pappas’ command openly encouraged the humiliation of detainees.
148. The infamous photos of Abu Ghraib abuses were given to Army investigators on January 13, 2004, by a U.S. soldier.
149. In February 2004, the International Committee of the Red Cross issued another exhaustive report on torture and abuse at U.S. detention facilities in Iraq. Upon information and belief, Defendant Rumsfeld knew of this and prior reports of the International Committee of the Red Cross as they were issued.
150. General John Abizaid, commander of the U.S. Central Command encompassing Iraq and Afghanistan, admitted in testimony before the Senate Armed Services Committee on May 19, 2004, shortly after the Abu Ghraib pictures became public, that “we should have known. And we should have uncovered it and taken action before it [abuse of detainees] got to the point that it got to. I think there’s no doubt about that.”
151. According to an official military report by Army Lieutenant General Anthony Jones, the following “indications and warnings” informed Defendant Sanchez’s command that detainees were being abused at Abu Ghraib and other detention facilities in Iraq: “the investigation of an incident at Camp Cropper, [International Committee of the Red Cross] reports on handling of detainees in subordinate units, [International Committee of the Red Cross] reports on Abu Ghraib detainee conditions and treatment, [Army Criminal Investigations Command] investigations and disciplinary actions being taken by commanders, the death of an
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OGA [Other Governmental Agencies, commonly understood to mean Central Intelligence Agency] detainee at Abu Ghraib, the lack of an adequate system for identification and accountability of detainees, and division commanders’ continual concerns that intelligence information was not returning to the tactical level once detainees were evacuated to the central holding facility.”
152. The report of an official investigation headed by former Secretary of Defense James Schlesinger (the “Schlesinger Report”) also states that Defendants Karpinski and Pappas “knew, or should have known, abuses were taking place and taken measures to prevent them.”
153. Upon information and belief, Defendant Rumsfeld has personal knowledge of the content of additional documents and reports documenting abuse and torture of detainees in Guantanamo, Afghanistan and Iraq. Indeed, Defendant Rumsfeld admitted that prior to the public scandal of torture at Abu Ghraib, he had heard of “other charges of abuse at different locations around the world. It happens from time to time.”
2. Failure to Prevent or Punish Abuse and Torture 154. Although Defendants knew and had reason to know of widespread detainee abuse, they failed to take adequate measures against subordinates to prevent and punish torture and abuse of detainees. To the contrary, Defendants expanded or maintained their subordinates’ authority to use harsh measures against detainees. Defendants’ actions and derelictions caused torture and abuse to continue and caused the Plaintiffs’ injuries. Illustrative examples of Defendants’ failures include the following: 155. Defendants failed to discipline Captain Carolyn Wood of the 519th Military Intelligence Battalion in connection with the two murders committed in Afghanistan by personnel under her command in December 2002. Instead, within weeks of the killings, Wood
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was awarded the first of two Bronze Star medals for “exceptionally meritorious service.” None of Captain Wood’s subordinates who were directly involved in the killings was charged until August 2004, after the Abu Ghraib photos became public. As a consequence of the failure to discipline or punish Captain Wood and other responsible officers, the same unlawful techniques continued to be used in Afghanistan and then were implemented in Iraq. A third Afghan detainee was tortured to death in March 2003, several months after the first two died in U.S. custody. At least five detainees have been tortured to death in U.S. military custody in Afghanistan since December 2002. At least three detainees have been tortured to death in Iraq.
156. In May 2003, soldiers commanded by Lieutenant Colonel Jerry Phillabaum, an officer under the command of Defendant Sanchez, and later under the command of Defendant Karpinski, tortured detainees in Iraq at the Camp Bucca facility. When Defendant Karpinski took command of the 800th Military Police Brigade, including Phillabaum, she knew of the conduct of Phillabaum’s soldiers. The incident was notorious at Camp Bucca and even at military deployment sites in the United States. Nonetheless, neither Defendant Karpinski nor Defendant Sanchez punished Phillabaum and low-ranking soldiers who committed the torture and abuse were given at most “less-than-honorable discharge.” Defendant Karpinski placed Lieutenant Colonel Phillabaum in command of the Abu Ghraib prison, where soldiers under his command again tortured and otherwise abused detainees. As Defendant Karpinski admitted, the inconsequential sanctions for the Camp Bucca abuse “communicated to the soldiers, the worst that’s gonna happen is, you’re gonna go home.”
157. By at least November 2003, Defendant Sanchez knew and had reason to know that soldiers under the command of Defendant Karpinski and Lieutenant Colonel Phillabaum again had tortured detainees, this time at Abu Ghraib. The Taguba Report described
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Lieutenant Colonel Phillabaum’s battalion as “the most troubled battalion guarding, by far, the largest number of detainees in the 800th MP [military police] Brigade.” Defendants Sanchez and Karpinski took no action against Colonel Phillabaum until Defendant Sanchez suspended Phillabaum’s command on January 17, 2004, fully eight months after the first reports of torture by Phillabaum’s subordinates at Camp Bucca.
158. Defendant Sanchez left Defendant Karpinski in command of all detainee operations in Iraq until the torture and other abuses at Abu Ghraib were publicly exposed in the media in May 2004. Despite numerous Pentagon investigations that found Defendant Karpinski had command responsibility for the mistreatment of detainees in Iraq, the administrative sanctions she received were based on a charge of dereliction of duty and essentially cleared her of responsibility for the abuse at Abu Ghraib.
159. Major General Miller, who implemented policies that exacerbated the torture and cruel, inhuman or degrading treatment of detainees in Iraq, was not corrected, reprimanded or punished by Defendants Rumsfeld or Sanchez. To the contrary, Defendant Sanchez placed Major General Miller in charge of all detention operations in Iraq in March 2004, and Major General Miller assumed those duties in April 2004.
160. Officers under the command of Defendants repeatedly disregarded detainee complaints against soldiers, including incidents with evidence corroborating the detainee. In failing to take steps to deter future misconduct, Defendants created a permissive climate in which military personnel believed that abuse and torture were authorized or tolerated.
161. Defendant Rumsfeld continues to fail in his duty to thoroughly, independently and adequately investigate the responsibility of high-level commanders and civilian officials for the torture and other cruel, inhuman or degrading treatment of detainees.
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162. Defendant Rumsfeld continues to neglect serious reports of detainee abuse. When Captain Ian Fishback and two fellow members of the 82nd Airborne Division publicly disclosed in September 2005 that members of the unit had engaged in systemic abuse over long periods of time, Defendant Rumsfeld did not condemn such conduct or launch an investigation. To the contrary, he disparaged the allegations publicly.
163. Official investigative reports by Army Generals Taguba, Jones and Fay concluded that Defendants Karpinski and Pappas, among others, were responsible for the abuses at Abu Ghraib through their failures of leadership. However, Defendants Rumsfeld and Sanchez have failed to address these failures of leadership through actions against commanders who were responsible for torture and other cruel, inhuman or degrading treatment.
164. Despite having notice of torture and other cruel, inhuman or degrading treatment at multiple detention facilities throughout Iraq, Defendant Sanchez ordered Generals Fay and Taguba to investigate torture only in relation to Abu Ghraib and only in relation to certain brigades and for certain time periods. Defendant Sanchez thus intentionally and knowingly avoided a meaningful and thorough inquiry into the knowledge and conduct of higher-level officials, as well as an investigation into the widespread nature of torture in Iraq. Defendant Rumsfeld knew of and acquiesced in or approved of Defendant Sanchez’s actions.
165. Upon information and belief, none of the official investigations has been tasked with assessing the accountability of senior Department of Defense officials or military officers above the rank of Brigadier General for the policies, practices, actions, orders and omissions that led to the torture and other abuse of prisoners in Afghanistan, Iraq and Guantanamo. This failure to investigate and prosecute continues despite the findings of the limited investigations that have been conducted, including: the Taguba Report’s finding of
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“systemic and illegal” abuse of detainees by U.S. military police at Abu Ghraib; the Fay Report’s finding of systemic failures, abuses, and lack of command and control; and the Schlesinger Report’s finding that prisoner abuse was widespread and that there was “institutional and personal responsibility at higher levels.”
166. Defendant Rumsfeld and other high-ranking U.S. commanders under his command continue to fail to discipline or charge high level military and civilian leaders implicated by reports of the International Committee of the Red Cross and journalists and by investigations by the military itself. Instead, many of the officers and civilians implicated in the military investigations of abuse have been promoted or remain in their positions, including Under Secretary Cambone, Major General Miller, Captain Carolyn Wood, Lieutenant General Dan McNeill, and Major General Barbara Fast.
167. Defendant Sanchez has not been sanctioned in any way and was assigned to command the Army’s V Corps in Europe. Defendant Karpinski was demoted to Colonel and received a light sanction for unrelated misconduct. Defendant Pappas received only a fine.
D. Consequences of Defendants’ Conduct 1. Plaintiffs Injured in Afghanistan and Iraq By Defendants’ Actions and Derelictions 168. Defendants’ actions and derelictions of duty set forth above caused
Plaintiffs and many other detainees to be tortured and subject to cruel, inhuman and degrading treatment and punishment while in U.S. military custody in Iraq and Afghanistan.
169. The Plaintiffs were and are non-combatant innocent civilians who pose no threat to the United States, were not engaged in hostilities against the United States, were not prosecuted for criminal violations and were released from custody by the U.S. military after being brutally abused and tortured.
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170. Each of the Plaintiffs suffered serious physical and psychological injury as a result of Defendant Rumsfeld’s actions and omissions. Each of the Iraqi Plaintiffs (Plaintiffs Arkan M. Ali, Sabar, Khalid, Ali H., and Ahmed) suffered serious physical and psychological injury as a result of all Defendants’ actions and omissions.
171. Absent judicial action, Plaintiffs have no meaningful avenue for obtaining adequate redress for their injuries, including a declaration of their rights against Defendants. Plaintiffs have no effective means to prevent the policy, pattern, or practice at issue in this suit except through an action against high-ranking civilian and military U.S. commanders and officials.
172. Plaintiffs and each of them fear and are at risk of detention by the U.S. military and of continued injury and abuse in violation of law.
a. Mehboob Ahmad 173. Plaintiff Mehboob Ahmad was detained by U.S. military forces from approximately June to November 2003. Plaintiff Ahmad was detained in U.S. custody at various locations in Afghanistan, including the Gardez firebase and the Bagram detention facility. 174. For the purpose of causing pain and injuring, interrogating, intimidating, degrading and abusing Plaintiff Ahmad while he was in U.S. military custody, care and control, Defendant Rumsfeld’s subordinates subjected Plaintiff Ahmad to the following forms of torture and other cruel, inhuman or degrading treatment, among others:
a. Subjecting Plaintiff Ahmad to abusive and painful positions for several hours at a time during nightly interrogations, in order to humiliate him and cause severe pain. These abusive positions included: (1) hanging him upside-down from the ceiling with a chain; (2) hanging him by his arms with a chain; (3) forcing him to kneel on a wooden pole, cuffing his hands and forcing them to be raised to the ceiling with a chain, and repeatedly pulling him up by the chain and dropping him so that he landed hard on the ground, and repeatedly pushing and kicking him; (4) forcing him to lie on
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the small of his back, lift his arms and legs off the ground, and hold water bottles in the air with his hands and feet; (5) forcing him, for extended periods, to squat with his back against a wall, arms outstretched, with heavy water bottles in each hand, causing extreme pain, and repeatedly forcing him back into this position when he collapsed in pain; (6) forcing him to sit for long periods, bent at the waist, with legs stretched apart and arms looped under and around his legs and wrists cuffed. In all of these abusive positions, Plaintiff Ahmad’s feet were tightly shackled in steel cuffs linked by a chain and his hands were tightly restrained in plastic flexicuffs, causing cuts to his ankles and wrists;
b. Causing extreme pain and fear by hanging Plaintiff Ahmad upsidedown from the ceiling with a chain for several hours while U.S. military personnel slapped and pushed him in order to cause his body to swing, and resulting in his loss of consciousness, then, after providing him with medical attention and reviving him, again hanging him upside-down from the ceiling with a chain for several more hours, again leading to loss of consciousness;
c. Inflicting excruciating electrical shocks on Plaintiff Ahmad during interrogation, with a device consisting of rings on each of his fingers, connected by wires, causing Plaintiff Ahmad’s body to thrash uncontrollably and resulting in loss of consciousness;
d. Forcing Plaintiff Ahmad to sit on his legs in a crouched position and flashing bright lights into his face, causing him to become disoriented and lose consciousness;
e. Causing humiliation and pain during interrogation by removing Plaintiff Ahmad’s clothing, while keeping him blindfolded, and (1) running a shoelace-like object over his body while telling him that it was a snake that would bite him, and (2) causing him to stand with his arms and legs forcibly stretched apart, and pushing his head sideways against a wall for over an hour while shouting questions at him;
f. Sexually assaulting, taunting and humiliating Plaintiff Ahmad by forcing him to strip and stay naked for lengthy periods of time; stripping and anally probing him; and having interrogators direct insults at his mother, wife, and sister and imply that the soldiers would rape his wife;
g. Threatening Plaintiff Ahmad with transport to Guantanamo, and showing him photographs of people sleeping in cages, purporting that the photographs were taken at Guantanamo;
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h. Intimidating and threatening Plaintiff Ahmad, and causing him pain and fear by repeatedly setting a snarling and barking dog at him while he was hooded and hanging by his arms, and allowing the dog to grab and pull at his arms and legs;
i. Causing pain and fear by forcing Plaintiff Ahmad to drink 12 halfliter bottles of water in five minutes;
j. Subjecting Plaintiff Ahmad to extreme sensory deprivation for the purpose of degrading and dehumanizing him by forcing him to wear black, opaque goggles almost continuously for the entire first month of his detention and for a period of several days’ duration thereafter, and by applying sound-blocking earphones;
k. Detaining Plaintiff Ahmad outdoors for weeks with no protection from the elements; and
l. Forbidding Plaintiff Ahmad to speak with other detainees for the entire time he was detained, approximately five months, for the purpose of dehumanizing and degrading him.
175. As a result of torture and other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Ahmad suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he suffers from leg pain and he sometimes cannot move his limbs when he awakes from sleep. He lacks mental concentration, which was not the case prior to his detention.
176. On information and belief, U.S. troops targeted Plaintiff Ahmad for arrest and detention based on the false statements of local individuals who worked closely with U.S. forces and harbored personal and/or political animosity toward Plaintiff Ahmad. On information and belief, some or all of these individuals continue to work closely with U.S. forces, continue to harbor animosity toward Plaintiff Ahmad, and may again make false reports that would result in Plaintiff Ahmad’s arrest and detention by U.S. forces.
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b. Said Nabi Siddiqi
177. Plaintiff Said Nabi Siddiqi was detained by U.S. military forces in
Afghanistan from approximately July to August 2003. Plaintiff Siddiqi was detained at various
locations in Afghanistan, including the Gardez firebase, the Kandahar airfield, and the Bagram
detention facility.
178. For the purpose of causing pain and injuring, interrogating, intimidating,
degrading and abusing Plaintiff Siddiqi while he was in U.S. military custody, care and control,
Defendant Rumsfeld’s subordinates subjected Plaintiff Siddiqi to the following forms of torture
and other cruel, inhuman or degrading treatment, among others:
a. Subjecting Plaintiff Siddiqi to painful and abusive positions for long periods during interrogations, including forcing him to hold a 15-pound piece of wood in his cuffed hands, forcing him to maintain a pushup position while dousing him with water, beating him if he did not maintain the positions, beating, kicking, grabbing, pushing and poking him during interrogations, flashing bright lights into his eyes and yelling directly into his ears at top volume;
b. Sexually humiliating and assaulting Plaintiff Siddiqi by stripping him naked, photographing him naked, probing his anus, and during interrogations, by stripping him naked, by making animal sounds and demanding to know which animals he had sex with and by repeatedly telling him that his wife was a slut and his daughter was a street beggar;
c. Causing extreme thirst by denying Plaintiff Siddiqi water for a prolonged period of time;
d. Throwing stones and other objects at Plaintiff Siddiqi and other detainees while they used an open bucket toilet, and forcing Plaintiff Siddiqi and others to expose themselves publicly with knowledge that this would cause extreme humiliation and degradation by Afghan cultural norms;
e. Subjecting Plaintiff Siddiqi to sleep deprivation for lengthy periods by throwing stones at him and other detainees at night in order to keep them from sleeping and by awakening them during the night, forcing them to roll around, dousing them with water and verbally
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abusing them, all for the purpose of dehumanizing and disorienting them; f. Interrogating Plaintiff Siddiqi every night for approximately two weeks, keeping him handcuffed and blindfolded for that entire period of time; g. Detaining Plaintiff Siddiqi for weeks in an outdoor area with no protection from the elements and extreme weather, for the purpose of dehumanizing him; h. Acting with deliberate indifference to Plaintiff Siddiqi’s medical needs and health, confiscating his asthma inhaler, and detaining him in a room flooded with water. 179. As a result of torture and other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Siddiqi suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he has had depression, thoughts of suicide and nightmares, is quick to anger, suffers from anxiety, has pain in his right knee and lower back, and has suffered from memory loss. His asthma worsened as a result of the mistreatment he suffered while in detention, and has continued to be more severe since his release. 180. On information and belief, U.S. troops targeted Plaintiff Siddiqi for arrest and detention based on the false statements of local individuals who worked closely with U.S. forces and harbored personal and/or political animosity toward Plaintiff Siddiqi. On information and belief, some or all of these individuals continue to work closely with U.S. forces, continue to harbor animosity toward Plaintiff Siddiqi, and may again make false reports that would result in Plaintiff Siddiqi’s arrest and detention by U.S. forces. c. Mohammed Karim Shirullah 181. Plaintiff Mohammed Karim Shirullah was incarcerated by U.S. military forces in Afghanistan from approximately December 2003 to June 2004. Plaintiff Shirullah was
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detained at various locations in Afghanistan, including the Gardez firebase and the Bagram
detention facility.
182. For the purpose of causing pain and injuring, interrogating, intimidating,
degrading and abusing Plaintiff Shirullah while he was in U.S. military custody, care and control,
Defendant Rumsfeld’s subordinates subjected Plaintiff Shirullah to the following forms of
torture and other cruel, inhuman or degrading treatment, among others:
a. Punching, slapping, and kicking Plaintiff Shirullah in the head during interrogation so fiercely and repeatedly that he fell to the ground repeatedly and that the blows ruptured his right eardrum;
b. Subjecting Plaintiff Shirullah to painful and abusive positions for long periods of time during interrogations, including making him stand on his toes and beating him if he failed to maintain the position;
c. Stripping Plaintiff Shirullah naked and throwing water on him during interrogation;
d. Depriving Plaintiff Shirullah of sleep for long periods by repeatedly kicking the walls of his cell throughout the night to keep him awake;
e. Intentionally dehumanizing Plaintiff Shirullah by subjecting him to sensory deprivation by forcing him to wear black, opaque goggles and wrist restraints for a period of more than two weeks, and by subjecting him to solitary confinement in a room for over one month;
f. Humiliating Plaintiff Shirullah and causing pain by forcing him to maintain painful and contorted positions, including forcing him to maintain his arms in a “T” position for one hour, and forcing him to sit in a very small space with no back support for six hours with his wrists and legs tied and his eyes and ears covered;
g. Sexually humiliating Plaintiff Shirullah by stripping him naked, probing his anus and photographing him while he was naked, and forcing him to use an open toilet, with knowledge that such treatment would cause extreme psychological suffering by Afghan cultural norms;
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h. Failing to treat the injury that U.S. personnel caused to Plaintiff Shirullah’s ear while beating him; and
i. Dehumanizing Plaintiff Shirullah by forbidding him to speak with other detainees for the entire time that he was detained, approximately six months.
183. As a result of torture and other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Shirullah suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he is deaf in his right ear and experiences pain in that ear, and his legs swell painfully. He cannot sleep through the night without medication.
184. On information and belief, U.S. troops targeted Plaintiff Shirullah for arrest and detention based on the false statements of local individuals who worked closely with U.S. forces and harbored personal and/or political animosity toward Plaintiff Shirullah. On information and belief, some or all of these individuals continue to work closely with U.S. forces, continue to harbor animosity toward Plaintiff Shirullah, and may again make false reports that would result in Plaintiff Shirullah’s arrest and detention by U.S. forces.
d. Haji Abdul Rahman 185. Plaintiff Haji Abdul Rahman was incarcerated by U.S. military forces in Afghanistan from approximately December 2003 to May 2004. Plaintiff Abdul Rahman was detained in various locations in Afghanistan, including the Gardez firebase and the Bagram detention facility. 186. For the purpose of causing pain and injuring, interrogating, intimidating, degrading and abusing Plaintiff Abdul Rahman while he was in U.S. military custody, care and control, Defendant Rumsfeld’s subordinates subjected Plaintiff Abdul Rahman to the following forms of torture and other cruel, inhuman or degrading treatment, among others:
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a. Subjecting Plaintiff Abdul Rahman to interrogation while forcing him to kneel, naked and with his hands cuffed behind his back and with blackout goggles on, placing a chain or other object through the handcuffs and repeatedly jerking on it to pull his arms and wrench his shoulders and wrists to cause extreme fear, intimidation and pain;
b. Sexually assaulting and humiliating Plaintiff Abdul Rahman by forcing him to strip naked in front of other people and anally probing him on multiple occasions, by placing blackout goggles over his eyes, and by photographing him while he was naked;
c. Subjecting Plaintiff Abdul Rahman to extreme restraints, blackout goggles and handcuffs for virtually the entire first month of his detention; subsequently placing him in blackout goggles and sound-deadening headphones and subjecting him to solitary confinement for 15 days for no reason other than to intimidate, humiliate, degrade and abuse him;
d. Subjecting Plaintiff Abdul Rahman to sleep deprivation by detaining him in brightly-lit areas for approximately three months and by making loud noises to keep him and other detainees awake and to dehumanize them and to disorient them as to the passage of time; and
e. Threatening to transport him to Guantanamo, so that he feared he would never return home.
187. As a result of torture and other cruel, inhuman or degrading treatment
while in U.S. custody, Plaintiff Abdul Rahman suffered severe physical and psychological
injuries. He continues to suffer the lasting effects of those injuries. Among other things, he
suffers great pain and sometimes loss of sensation and near-paralysis in his right leg and back.
Since his release, Plaintiff Abdul Rahman also has suffered from increasing shoulder pain
resulting from the physical injuries inflicted by U.S. forces. The pain is so severe that he
requires frequent injections to manage it. Even light physical activity makes the pain worse. He
also suffers vision problems and memory lapses. He has emotional problems and is quick to
anger, which has caused difficulties with his family and work.
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188. On information and belief, U.S. troops targeted Plaintiff Abdul Rahman for arrest and detention based on the false statements of local individuals who worked closely with U.S. forces and harbored personal and/or political animosity toward Plaintiff Abdul Rahman. On information and belief, some or all of these individuals continue to work closely with U.S. forces, continue to harbor animosity toward Plaintiff Abdul Rahman, and may again make false reports that would result in Plaintiff Abdul Rahman’s arrest and detention by U.S. forces.
e. Arkan M. Ali 189. Plaintiff Arkan M. Ali was detained by U.S. military forces in Iraq for about 11 months, from approximately July 2003 to June 2004. Plaintiff Arkan M. Ali was detained at various locations in Iraq, including a civil defense station in Baghdad, a military prison at the Baghdad international airport, Camp Bucca, and the Abu Ghraib prison. 190. For the purpose of causing pain and injuring, interrogating, intimidating, degrading and abusing Plaintiff Arkan M. Ali while he was in U.S. military custody, care and control, Defendants’ subordinates subjected Plaintiff Arkan M. Ali to the following forms of torture and other cruel, inhuman or degrading treatment, among others:
a. Subjecting Plaintiff Arkan M. Ali to severe beatings by groups of military personnel throughout his eleven months in U.S. custody, including twice beating him to unconsciousness during interrogation, using hands, feet, chains and weapons;
b. Forcibly restraining Plaintiff Arkan M. Ali and using a large knife to repeatedly stab and slice his forearm causing extreme pain, bleeding and scarring;
c. Burning or shocking Plaintiff Arkan M. Ali’s forearm with a small metal device;
d. Subjecting Plaintiff Arkan M. Ali to prolonged sensory and sleep deprivation;
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e. Repeatedly locking Plaintiff Arkan M. Ali for several days in a wooden phone booth-sized box, sometimes after stripping him naked and tying a hood over his head;
f. Shackling Plaintiff Arkan M. Ali with his hands behind his head, placing him on the ground in a prone position, then stepping on his head and pulling up on the shackles, causing extreme pain;
g. Urinating on Plaintiff Arkan M. Ali intentionally to humiliate and degrade him;
h. Detaining Plaintiff Arkan M. Ali in a “silent tent” for days at a time, during which he was denied sleep and dragged face-down along the ground and severely beaten by soldiers whenever it appeared he might be falling asleep;
i. Chaining Plaintiff Arkan M. Ali to a metal shipping container, then repeatedly kicking him, spitting on him, choking him, and bringing a leashed guard dog very close to his face while he cringed away in fear;
j. Subjecting Plaintiff Arkan M. Ali to multiple death threats, including but not limited to the following: on more than one occasion, holding a gun to his head and chambering a round; threats to transfer him to Guantanamo where he was told soldiers could kill detainees with impunity; mock executions by threatening to run Plaintiff Arkan M. Ali and other detainees down with a large military vehicle; brandishing guns and threatening to shoot Plaintiff Arkan M. Ali and other detainees; approaching Plaintiff Arkan M. Ali with a sword and threatening to slaughter him;
k. Falsely telling Plaintiff Arkan M. Ali and other detainees during transport between prisons that they were being taken to another country, in order to terrorize and disorient them and to lead them to believe that they would never see their families again;
l. Denying Plaintiff Arkan M. Ali food and water for long periods, intentionally causing extreme hunger and thirst; and
m. Repeatedly desecrating the Quran in the presence of Plaintiff Arkan M. Ali and other detainees to demean and degrade them, including having a military dog pick up the Quran in its mouth.
191. As a result of torture and other cruel, inhuman or degrading treatment
while in U.S. custody, Plaintiff Arkan M. Ali suffered severe physical and psychological injuries.
He continues to suffer the lasting effects of those injuries. Among other things, he suffers from
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migraine headaches and continues to suffer from pain in the kidneys, colon and urinary tract, which were affected by serious infections at the time of his release from detention. He also bears severe scars on his arm from the stabbing and burning he suffered, and reduced strength in that arm. He has severe depression, frequent severe nightmares, decreased sexual function, memory problems, insomnia, anxiety attacks, and episodes of shortness of breath and an involuntary gulping reflex, which he never experienced prior to his detention. He becomes fearful and anxious to a debilitating extent whenever he leaves his home. As a result of his continuing injuries, Plaintiff Arkan M. Ali has been unable to maintain employment and his personal relationships with his family and others have deteriorated.
192. Upon Plaintiff Arkan M. Ali’s release from U.S. custody, a U.S. official threatened him by specifically telling him that that if he ever reported or discussed the abuse he and others suffered in detention, the U.S. government would find him and he would never see his family again. Plaintiff Arkan M. Ali understood the official to mean that such future detention would be retaliatory and would include further torture and other cruel, inhuman or degrading treatment or even death.
193. Plaintiff Arkan M. Ali continues to fear abuse and redetention based in part on the threat of redetention at the time of his release and on the continuing and frequent round-ups and sweeps in Baghdad by U.S. forces and Iraqi forces acting at their direction.
f. Thahe M. Sabar 194. Plaintiff Thahe M. Sabar was detained by U.S. military forces in Iraq from approximately July 2003 to January 2004. Plaintiff Sabar was detained at various locations in Iraq, including locations in Baghdad known as al-Qasr al-Jumhouri or al-Qasr al-Sujood, the prison at the Baghdad international airport, Camp Bucca, and Abu Ghraib.
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195. For the purpose of causing pain and injuring, interrogating, intimidating,
degrading and abusing Plaintiff Sabar while he was in U.S. military custody, care and control,
Defendants’ subordinates subjected Plaintiff Sabar to the following forms of torture and other
cruel, inhuman or degrading treatment, among others:
a. Frequent severe beatings, including beating Plaintiff Sabar with their fists and guns while he was handcuffed and helpless, hitting him in the genitals, and forcing him and other detainees to run through a gauntlet of 10 to 20 uniformed soldiers who were screaming at them and beating them with wooden batons;
b. Twice using a gun-shaped device to inflict excruciating electrical shocks on Plaintiff Sabar;
c. Sexually assaulting Plaintiff Sabar: One or more soldiers in the presence of male and female soldiers inserted their fingers into Plaintiff Sabar’s anus and grabbed and fondled his buttocks and penis while making moaning sounds and jeering at him in a sexually degrading and intimidating manner;
d. Staging extraordinary mock executions of Plaintiff Sabar and other detainees to terrorize, humiliate and degrade them and to extract false confessions, including: forcing Plaintiff Sabar and other detainees to stand against a wall and staging a mock firing squad with simulated gunfire, laughing as detainees lost control of their bladders in their terror; thrusting Plaintiff Sabar and other detainees briefly into a cage of live lions that had been owned by Uday Hussein; and threatening to send Plaintiff Sabar to Guantanamo and informing him that he would be killed there;
e. Using extreme restraints, hooding him and applying handcuffs so tightly that Plaintiff Sabar suffered extreme pain and experienced numbness in his hands and wrists;
f. Shackling Plaintiff Sabar’s hands to a fence behind his back, subjecting him to that position for several hours at temperatures exceeding 120 degrees Fahrenheit (50 degrees Celsius) while denying him any water or food, and other prolonged periods of exposure to extremely hot conditions, for the purpose of causing pain, extreme thirst, and humiliation;
g. Shackling Plaintiff Sabar’s hands and feet so tightly that they bled and became numb, hooding him so that it was difficult to breathe and he lost consciousness, and placing him in solitary confinement
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under those conditions for four days in a small concrete room in temperatures exceeding 120 degrees Fahrenheit, while depriving him of adequate food and water. h. Intentionally causing humiliation and extreme hunger by depriving Plaintiff Sabar of food and water for extended periods of time, or by providing him with food containing pork or foul-smelling and spoiled food which caused detainees to vomit when they tried to eat it; i. Intentionally humiliating Plaintiff Sabar by denying him the use of toilet facilities for extended periods while he was shackled thereby causing him to soil his pants; and j. Desecrating the Quran in the presence of Plaintiff Sabar and other detainees to demean and degrade then, including throwing the book to the floor and stepping on it. 196. As a result of torture and other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Sabar suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, Plaintiff Sabar continues to suffer from pain from a dislocated shoulder and in his legs, and persistent headaches. He lost two teeth as a result of beatings. Plaintiff Sabar also suffers from debilitating depression, anxiety, and irritability. He suffers from decreased sexual function and decreased sex drive. In addition, Plaintiff Sabar sometimes experiences vivid flashbacks to the mock executions and other torture and cruel treatment he suffered during detention. He is chronically lethargic and suffers from severe, chronic insomnia. When he is able to sleep, he experiences nightmares that leave him shaking and crying, as a direct result of the torture and other mistreatment he experienced in custody. 197. After his release from U.S. custody, Plaintiff Sabar and Plaintiff Khalid returned to Abu Ghraib to seek return of property confiscated from them by U.S. forces and to inquire about a mutual business partner who remained in custody. Plaintiffs Sabar and Khalid
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were detained in a locked room by military personnel and then released without receiving any response to their inquiries.
198. Plaintiff Sabar continues to fear redetention and abuse by U.S. forces. His fear is based in part on his previous redetention upon seeking return of property, on the continuing and frequent sweeps in Baghdad neighborhoods by the U.S. military and Iraqi forces acting at their direction, on the continuing high rates of detention of Iraqis by the U.S. military and by Iraqi forces acting at the direction of the U.S. military, and on the security situation in Baghdad. As a result of his fear, in the past year, plaintiff Sabar has changed his personal residence four times, and his place of business once. Plaintiff Sabar has also sent his children to live in another country because he fears that they may be harmed, especially if he is redetained.
g. Sherzad K. Khalid 199. Plaintiff Sherzad K. Khalid was detained by U.S. military forces in Iraq from approximately July to September 2003. Plaintiff Khalid was detained at various locations in Iraq, including locations in Baghdad known as al-Qasr al-Jumhouri or al-Qasr al-Sujood, a prison at the Baghdad international airport, and Camp Bucca. 200. For the purpose of causing pain and injuring, interrogating, intimidating, degrading and abusing Plaintiff Khalid while he was in U.S. military custody, care and control, defendants’ subordinates subjected Plaintiff Khalid to the following forms of torture and other cruel, inhuman or degrading treatment, among others:
a. Kicking and punching Plaintiff Khalid over a period of hours while he was shackled and hooded and seated on the ground, terrorizing and injuring him with random and unanticipated blows;
b. Forcing Plaintiff Khalid and other detainees to run a gauntlet of approximately 10 to 20 uniformed U.S. soldiers who beat them with batons; grabbing Plaintiff Khalid by the head, shoving him to the ground, and stepping on his head; interrogating Plaintiff Khalid on numerous occasions and beating him severely before each
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interrogation; and routinely beating Plaintiff Khalid throughout his period of detention, such that his body was covered with deep bruises at the time of his release;
c. Sexually assaulting and humiliating Plaintiff Khalid by grabbing his buttocks and simulating anal rape by pressing a water bottle against the seat of his pants; putting a hand inside Plaintiff Khalid’s pants and grabbing his buttocks during a severe beating, punching him in the mouth breaking one of his teeth when he protested, and then brandishing a long wooden pole and threatening to sodomize him on the spot and every night of his detention;
d. Using extreme restraints, applying tight hoods that restricted Plaintiff Khalid’s breathing and vision, and handcuffing him so tightly that he suffered severe and long-lasting pain, in order to cause pain and fear;
e. Shackling Plaintiff Khalid’s hands to a fence behind his back, subjecting him to that painful position for several hours at temperatures exceeding 120 degrees Fahrenheit (50 degrees Celsius) while denying him any water or food, in order to cause extreme thirst, pain, and humiliation, and other prolonged periods of exposure to extremely hot conditions;
f. Subjecting Plaintiff Khalid to prolonged sleep deprivation in a socalled “silent tent” for several days and severely beating him whenever he started to fall asleep;
g. Subjecting Plaintiff Khalid to extraordinary mock executions and death threats to coerce false confessions, including placing a gun to Plaintiff Khalid’s head and demanding a confession; briefly thrusting him and other detainees into a cage of live lions several times; and placing him in a mock firing squad with simulated gunfire;
h. Intentionally causing Plaintiff Khalid severe hunger and humiliation by denying him food and water for extended periods, or providing him with food containing pork or foul-smelling, spoiled food that caused detainees to vomit when they tried to eat it;
i. Intentionally humiliating Plaintiff Khalid by denying him the use of toilet facilities for extended periods while he was shackled, thereby causing him to soil his pants;
j. Deliberately depriving Plaintiff Khalid of adequate medical attention and acting with deliberate indifference to his medical
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needs, including refusing to provide adequate treatment for severe abdominal pains, which were diagnosed after his release as caused by a serious stomach infection. 201. As a result of torture and other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Khalid suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. As a result of the untreated stomach infection he suffered in detention, he developed ulcers of the stomach and is required to take medication. Since his detention, he has continued to suffer from migraine headaches and back pain. He has lost his appetite. In addition, he suffers from severe and chronic insomnia, high levels of anxiety, irritability, reduced sex drive, severe depression and nightmares that have caused serious difficulty in his work and family relationships. He often experiences episodes when his mind goes blank, and does not become conscious of his surroundings until someone nearby attempts to rouse his attention. As a result of these psychological injuries, Plaintiff Khalid is now unable to drive a car, pursue new business opportunities, or pursue other ordinary activities. 202. After his release from U.S. custody, Plaintiff Khalid accompanied Plaintiff Sabar to Abu Ghraib to seek return of property confiscated by U.S. forces and to inquire about a mutual business partner who remained in custody. Both Plaintiff Sabar and Plaintiff Khalid were detained in a locked room by military personnel and were then released without receiving any response to their inquiries. 203. Plaintiff Khalid continues to fear redetention and abuse. His fear is based in part on his previous redetention upon seeking return of property and on the continuing sweeps and detentions throughout Iraq by U.S. forces and Iraqi forces acting at their direction. Because of his fear, Plaintiff Khalid has stopped traveling to Baghdad, which he would ordinarily do in
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the course of his business, because of his concern that he may be targeted there by U.S. forces
and Iraqi forces acting at their control.
h. Ali H.
204. Plaintiff Ali H. was detained by U.S. military forces in Iraq from
approximately August to September 2003, when he was 17 years old. Plaintiff Ali H. was
detained at various locations in Iraq, including a former Baghdad police station, a facility in or
near the city of Al-Tasferat, the Baghdad airport prison, Abu Ghraib, and facilities near the cities
of Yusufiya and Mosul and in the Jurf Al-Sakher desert.
205. For the purpose of causing pain and injuring, interrogating, intimidating,
degrading and abusing Plaintiff Ali H. while he was in U.S. military custody, care and control,
Defendants’ subordinates subjected Plaintiff Ali H. to the following forms of torture and other
cruel, inhuman or degrading treatment, among others:
a. At the time of arrest, shooting Plaintiff Ali H., hitting him with a gun, throwing him to the ground, and stepping on his head even though he was innocent of any wrongdoing, bleeding profusely from two gunshot wounds, and posed no threat to the arresting soldiers;
b. Refusing to provide medical care for gunshot wounds inflicted by U.S. forces for several hours and then removing bullets from Plaintiff Ali H.’s neck and back without anesthetic, intentionally causing excruciating pain;
c. Refusing to provide Plaintiff Ali H. with food, water, and pain medication for one-and-a-half days, despite his gunshot wounds and forcing him to remain shackled for hours with his hands behind his back and his feet spread, in order to cause pain, hunger, thirst, and humiliation;
d. Refusing to provide Plaintiff Ali H. with adequate medical treatment and pain medication for approximately 16 days after transport to the Baghdad airport prison despite examination of his gunshot wounds by U.S. military personnel during prison intake processing, when he was close to physical collapse, causing excruciating pain and injury;
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e. Refusing to provide Plaintiff Ali H. with adequate medical care and pain medication after he received a life-threatening shrapnel wound during a mortar attack while he was housed in an outdoor tent at Abu Ghraib. U.S. military personnel intentionally inflicted pain and torture on Plaintiff Ali H. while he was recovering from abdominal surgery after his transfer from Abu Ghraib to facilities at Yusufiya, Mosul, and in the Jurf al-Sakher desert by: roughly dragging him from one location to another after surgery, in a way calculated to cause severe pain; keeping him shackled hand and foot to a bed with a blanket placed over his face; transferring him to the Mosul prison where he was forced to sleep on the ground outdoors in extremely hot weather without any shelter, despite being in excruciating pain and having an intravenous tube in his arm; pulling roughly and forcefully on a catheter inserted in his bladder, causing excruciating pain; and refusing to change the bandages on his surgical wounds and humiliating him when he requested medical assistance, thereby causing his surgical wound to become infected and leak pus, and inflicting further extreme pain and humiliation by roughly ripping away the bandage and then intentionally leaving the wound half-exposed in order to humiliate and injure him; and
f. Intentionally releasing Plaintiff Ali H. in a manner intended to terrorize and degrade him by first informing him that he would be released, then telling him he would be sent to another prison, and then cutting off his identification bracelet, confiscating his release papers and physically throwing him from a bus to the ground outside while he still had an intravenous tube in his arm, in a manner calculated to prevent him from seeking relief for the injuries he suffered while in custody.
206. As a result of torture and other cruel, inhuman or degrading treatment
while in U.S. custody, Plaintiff Ali H. suffered severe physical and psychological injuries. He
continues to suffer the lasting effects of those injuries. Among other things, he suffers frequent,
severe, and disabling pain in his abdomen and back, particularly in cold weather. His physician
has advised him not to run or to lift objects weighing more than a few pounds and has further
advised that his condition may worsen over time. As a direct result of the injuries he suffered
and the deliberate indifference to his medical condition on the part of U.S. military personnel,
Plaintiff Ali H. has disfiguring scars on his abdomen, back, and neck. Plaintiff Ali H. also
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suffers from frequent nausea and vomiting. He tires very easily and requires frequent rest. He suffers from loss of normal sex drive. He also has severe depression and anxiety, a persistent lack of energy, and insomnia. When he is able to sleep, Plaintiff Ali H. has frequent nightmares relating to the abuse he suffered and witnessed in detention, and awakens his parents during the night when he screams and cries in his sleep. In addition, he is often forced to leave school because of debilitating fatigue, severe depression and abdominal pains.
207. Plaintiff Ali H. continues to fear redetention and abuse by U.S. forces, based in part on the continuing and frequent sweeps in Baghdad neighborhoods by the U.S. military and Iraqi forces acting at their direction and on the continuing high rates of detention of Iraqis by the U.S. military and by Iraqi forces acting at the direction of the U.S. military. As a result of his fear, in the past year, plaintiff Ali H. has temporarily had to flee his home for another part of the country.
i. Najeeb Abbas Ahmed 208. Plaintiff Najeeb Abbas Ahmed was detained twice by U.S. military forces in Iraq. He was first detained from approximately May 2003 to July 2003. He was detained a second time from approximately July 2003 through December 2003. Plaintiff Ahmed was detained at various locations in Iraq, including U.S. facilities in Ibrahimiya, Karbala University, Nasiriya, Camp Bucca prison, Diwaniya, Tasferat, Camp Cropper prison at the Baghdad airport, and Abu Ghraib prison. 209. For the purpose of causing pain and injuring, interrogating, intimidating, degrading and abusing Plaintiff Ahmed while he was in U.S. military custody, care and control, Defendants’ subordinates subjected Plaintiff Ahmed during the two periods of his detention to the following forms of torture and other cruel, inhuman or degrading treatment, among others:
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a. Devising a scheme to humiliate, sexually assault, and physically injure Plaintiff Ahmed, by throwing him to the ground, stepping on his neck and legs, sitting on his back and feet, tying him with extremely tight restraints on his wrists, then calling a group of 10 to 12 U.S. soldiers to come into the room. The soldiers taped toy animals to Plaintiff Ahmed’s head and shoulder and chanted racial epithets at him. A soldier kicked the soles of Plaintiff Ahmed’s feet. A soldier put a gun to his head. Another approached him in a menacing way and then spat in his face. A soldier stepped on his head. When Plaintiff Ahmed begged for water because he was sweating and suffering from chest pains, a soldier approached him, exposed his penis, told Plaintiff Ahmed to drink, and then unzipped Plaintiff Ahmed’s pants. Soldiers shone a bright beam of light in Plaintiff Ahmed’s face. During all these proceedings, soldiers videotaped and photographed Plaintiff Ahmed;
b. Physically torturing Plaintiff Ahmed by grabbing him, slamming his head into a wall, and then forcing him to kneel with his head against the wall, even though that position caused excruciating pain due to a back injury;
c. Threatening to send Plaintiff Ahmed to Guantanamo and telling him that he would be imprisoned there for life;
d. Imprisoning Plaintiff Ahmed in a place known as the “silent tent,” where detainees were awakened during the night by soldiers kicking them and forcing them to march to the latrines in the cold. On many other occasions, soldiers used other schemes to keep Plaintiff Ahmed awake at night, such as screaming and playing loud music at night, and shining bright lights on him;
e. Confiscating Plaintiff Ahmed’s medications for high blood pressure and heart disease and his eyeglasses, while deliberately refusing to provide medical care to Plaintiff Ahmed when he suffered chest pains, heart attacks, and a possible stroke while in custody. On one occasion, after Plaintiff Ahmed suffered a heart attack, U.S. military personnel transferred him to a local hospital, but physically took him from the hospital against his treating physician’s advice that release might cause his death. On another occasion, soldiers confiscated his medication again, shoved him, screamed at him, and told him to shut up when he attempted to explain that he needed the medication for a serious heart condition. During detention, he suffered an apparent stroke and was hospitalized. While he was incapacitated in the hospital, soldiers refused to untie his hands, so that he was required to eat his meals by putting his mouth to his tray;
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f. Exposing Plaintiff Ahmed to extremely hot temperatures, exceeding 120 degrees Fahrenheit, in small, enclosed and crowded spaces, so that he had difficulty breathing. On one occasion, Plaintiff Ahmed was deliberately housed for two days in a small, roofless, outdoor cage in the hot desert sun at temperatures exceeding 120 degrees, for the purpose of degrading and injuring him. Soldiers blasted loud music toward the cage at night to keep Plaintiff Ahmed awake. During the day, Plaintiff Ahmed crouched on all fours along the perimeter of the cage to try to shelter in any small bit of shade. During this two-day period, Plaintiff Ahmed suffered from severe diarrhea but had no access to a lavatory or even any means of privacy.
210. As a result of torture and other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Ahmed suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he has suffered severe deterioration of his heart condition, and his cardiologist has advised him that his condition has worsened as a result of the ill-treatment he suffered in detention to the extent that surgery is required. Plaintiff Ahmed also suffers from debilitating depression, irritability, and negative thoughts. He has become extremely emotional and cries easily. Because he was detained twice, and subjected to torture and cruel, inhuman or degrading treatment during both periods of detention, Plaintiff Ahmed is terrified of being redetained in the future. Because of these medical and psychological injuries, Plaintiff Ahmed has been unable to work.
2. Defendants’ Policies, Patterns or Practices Caused Widespread Torture and Abuse of Detainees in Afghanistan and Iraq
211. Plaintiffs’ injuries are part of a widespread pattern of torture and abuse of detainees in U.S. military custody in Iraq and Afghanistan. Numerous reports of nongovernmental and U.S. government entities have described this pattern, as Defendants knew and should have known.
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a. Afghanistan 212. The abuse in Afghanistan began soon after the commencement of military
actions and has lasted well beyond the declared end of major combat operations.
213. In December 2001, John Walker Lindh, a U.S. citizen, was arrested and
detained by the U.S. military in Afghanistan. Photographs taken during his detention in
Afghanistan show him stripped naked and bound to a stretcher.
214. Press reports and internal government documents document that U.S.
military personnel have subjected detainees in U.S. custody in Afghanistan to torture and other
cruel, inhuman or degrading treatment, including:
a. Extreme physical abuse: Soldiers severely beat detainees, forced them into painful and contorted positions for hours or days on end, chained prisoners to the ceiling of isolation cells for long periods of time, and dumped cold water over detainees in the middle of the winter. Beatings were for the specific purpose of making detainees more susceptible to interrogation.
b. Sexual abuse and humiliation: Detainees were kept naked for prolonged periods in the presence of male and female soldiers and in front of other detainees. A female interrogator kicked a detainee in the genitals. Soldiers subjected detainees to sexual taunts, with knowledge that such treatment would be particularly offensive and humiliating by Afghan cultural norms.
c. Use of dogs to frighten and intimidate detainees. d. Sensory deprivation: Detainees were kept hooded or goggled, held
in dark cells, and kept in isolation for prolonged periods. e. Sleep deprivation: Detainees were forced to stay awake for
prolonged periods by methods such as shining bright lights on them, blaring loud music, shouting at them or beating them if they fell asleep. The Army Criminal Investigation Command found that sleep deprivation by military intelligence was a direct contributing factor leading to the death of a detainee at the Bagram detention facility.
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f. Solitary confinement: detainees were hooded, shackled and were forced into isolation cells for at least the first 24 hours of captivity as a matter of policy, and in many cases longer.
215. Detainees have been killed by torture and other cruel, inhuman or
degrading treatment while in U.S. custody in Afghanistan. For example:
a. The Army Criminal Investigation Command concluded in September 2002 that a U.S. Army captain and three noncommissioned officers murdered a civilian in their custody in Afghanistan.
b. Two other Afghan detainees, Mullah Habibullah and Dilawar, died in December 2002 at the Bagram detention facility in Afghanistan while in the custody of the U.S. military. The detainees were shackled to the ceiling with their hands suspended over their shoulders for prolonged periods, suffered blunt force trauma to their legs, and were beaten by multiple soldiers. For months after military pathologists determined that the cause was homicide, the military falsely asserted that the men had died of natural causes.
c. Another detainee, Jamal Naseer, an 18-year-old soldier, died at a U.S. firebase in Gardez after being tortured and abused while in U.S. custody. Naseer and seven other members of the Afghan Army were detained by U.S. forces and interrogated at Gardez for 17 days, where they were regularly beaten by U.S. interrogators with fists and cables, some while shackled or while suspended upside down, and some subjected to electric shocks and immersion in cold water and exposed to cold weather, including snow, after which the detainees were denied medical treatment for their injuries.
216. Upon information and belief, multiple other detainees have died while in
U.S. military custody in Afghanistan under circumstances suggesting the cause of death was
homicide.
217. The U.S. Army Criminal Investigations Command determined that
members of the 377th Military Police Battalion and a unit that appears to be the 519th Military
Intelligence Battalion committed abuses against detainees in Afghanistan, including the
following: slamming detainees into walls, twisting handcuffs to cause pain, kneeing detainees,
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forcing a detainee to maintain painful, contorted positions, shackling a detainee’s arms to the ceiling, and forcing water into the mouth of a detainee until he could not breathe.
b. Iraq 218. The U.S. government, the International Committee of the Red Cross, and non-governmental human rights organizations have also documented widespread and systemic abuse committed at U.S. detention facilities in Iraq. 219. Reports confirm abuses at the detention facility known as “Camp Cropper” at the Baghdad international airport; a facility near the city of Umm Qasr known as Camp Bucca; facilities in or near the cities of Tikrit and Mosul; and numerous locations in or near the city of Baghdad. A U.S. military intelligence soldier reported that U.S. Army units tortured Iraqi civilians in their homes after conducting raids. Methods included burning the victims, smashing their feet with the back of an axe-head, and breaking their bones. 220. According to reports by the U.S. military, the International Committee of the Red Cross, and other non-governmental human rights organizations, and as revealed in internal government documents, U.S. personnel inflicted the following types of torture and other cruel, inhuman or degrading treatment, among others, on detainees at numerous U.S. facilities in Iraq:
a. Extreme physical abuse: Soldiers tore out a detainee’s toenails, administered electric shocks, beat detainees with hard objects (including pistols and rifles), slapped and punched detainees, kicked them with knees or feet on various parts of the body (legs, sides, lower back, groin), forcefully pressed detainees’ faces into the ground by stepping on their heads, purposely exposed detainees to severe heat and sun for prolonged periods, and forced detainees to stay in “stress” positions (kneeling, squatting, standing with arms raised over their heads) for hours at a time, chained detainees to the ceilings naked, and in some instances threw icy water on them.
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b. Various forms of sexual abuse and humiliation: Detainees were stripped naked and forced to stand for prolonged periods in public view, with arms raised or with women’s underwear over their heads, while male and female guards observed and laughed; detainees were photographed in these positions; paraded naked in front of other detainees; and kept naked in solitary confinement for periods of several days.
c. Threats of death, abuse, reprisals against family members, imminent execution or transfer to the military detention facility at Guantanamo; mock or threatened executions, including aiming rifles at detainees, sometimes putting firearms directly against detainees’ heads or torsos.
d. Sensory deprivation: Hooding detainees to prevent them from seeing, to disorient them, and to prevent them from breathing freely; employing hooding in conjunction with beatings to increase fear, to dehumanize detainees, and to allow interrogators to remain anonymous and thus to act with impunity; holding detainees in total darkness for prolonged periods.
e. Medical deprivation: Soldiers withheld critical medication for a potentially fatal disease from a detainee.
f. Food and water deprivation: Soldiers withheld food and water from detainees
g. Painful and humiliating restraints: Soldiers applied flexi-cuffs to detainees’ wrists so tightly and for such extended periods that they caused skin lesions and long-term nerve damage; and restrained detainees repeatedly over periods of several days, for several hours each time, with handcuffs attached to the bars of their cell doors in humiliating (i.e. naked or in underwear) and/or painful positions.
221. Official U.S. military reports have documented the notorious abuses at
Abu Ghraib prison, among other detention facilities. These reports determined that soldiers
inflicted the following torture and other cruel, inhuman or degrading treatment on detainees at
Abu Ghraib:
a. Homicide: A Navy SEAL beat a detainee to death in the head with a rifle butt. The detainee later died in the shower room while his hands were cuffed behind his back and he was suspended by his wrists in a position known as “Palestinian hanging.”
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b. Extreme physical abuse: Soldiers punched, kicked and slapped detainees; knocking at least one detainee unconscious; beating detainees with a broom handle and a chair; breaking chemical lights and pouring the contents on detainees; slamming detainees against a wall with such force as to require stitches.
c. Sexual abuse and humiliation: Soldiers threatened to rape detainees; an interpreter allegedly raped a juvenile male detainee while a female U.S. soldier watched and took pictures; soldiers forced a naked detainee to stand on a box with a sandbag on his head, attaching wires to his fingers, toes and penis to simulate electric torture; stripping detainees naked for prolonged periods; photographing and videotaping naked detainees, sometimes in forced sexual positions; forcibly dressing detainees in women’s underwear; forcing detainees to masturbate; arranging naked detainees in a pile and jumping on them; placing a dog leash around a naked male detainee’s neck and photographing him; forcing a detainee to “bark like a dog” while military police personnel spit and urinated on him and beat him until he lost consciousness.
d. Abusive use of military dogs: Repeated instances of using military dogs to intimidate, frighten and threaten adult and juvenile detainees; using dogs to cause detainees to lose control of their bladders or bowels out of fear; and allowing a dog to bite and severely injure at least one detainee.
e. Sensory deprivation: Keeping detainees in solitary confinement, including in empty cells in total darkness.
222. In reports presented to U.S. government officials and military
commanders, the International Committee of the Red Cross documented hundreds of additional
individual allegations of abuse committed at U.S. military detention facilities throughout Iraq.
Fifty incidents of torture and other abuse were reported as occurring at the Camp Cropper
detention facility alone. Among the “illustrative” cases of torture reported by the International
Committee of the Red Cross are the following:
a. Forcing detainees to sit or lie down on blistering surfaces, causing severe burns that resulted in large crusted lesions and, in one case, three months’ hospitalization, the amputation of a finger and large skin grafts.
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b. Hooding and restraining a detainee with flexi-cuffs; threatening him with torture and death; urinating on him; severely beating him; depriving him of sleep for several days; and administering additional beatings when he said he would report the abuse to the International Committee of the Red Cross.
223. A number of detainees have died in U.S. custody in Iraq under circumstances suggesting criminal homicide. For example:
a. In November 2003, Abed Hamed Mowhoush, a general in the Iraqi Army, died at a U.S. detention facility in western Iraq. During interrogation, U.S. troops had stuffed him into a sleeping bag and wrapped him in an electrical cord. He also had been severely beaten by closed fists, a club and a rubber hose until he was nearly senseless.
b. As noted above, another detainee died during interrogation, shackled in a “Palestinian hanging” position in the shower room at Abu Ghraib, and with his ribs broken.
224. At least 28 individuals have died by confirmed or suspected acts of homicide at the hands of U.S. military personnel in U.S. custody in Iraq and Afghanistan since 2002. Only one of those homicides took place at Abu Ghraib.
225. In Iraq, detainee abuse was so commonplace that a vocabulary developed to describe it. One sergeant in the 82nd Airborne Division described how ubiquitous abuses were: “To ‘smoke’ someone is to put them in stress positions until they get muscle fatigue and pass out. That happened every day.” “To ‘F**k a PUC’ means to beat him up. We would give them blows to the head, chest, legs, and stomach, pull them down, kick dirt on them. This happened every day.” A second sergeant corroborated the statements of the first. He witnessed or participated in: putting detainees in stress positions; “hard hitting” of detainees; “smoking” detainees and sleep and food deprivation.
226. Reports of continuing physical abuse of detainees after the revelations of Abu Ghraib include reports of detainees who have been punched or slapped; detainees who have
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been placed in wooden boxes with their hands cuffed and eyes blocked by darkened goggles, without food or water for long periods of time; sexual abuse, humiliation, and threats of rape; threats of death, abuse, reprisals against family members during interrogations; and threats of transfer and staged mock transfers to Guantanamo.
3. Defendants’ Policies, Patterns and Practices Continue 227. Defendants’ policies, practices and procedures at issue in this case remain in effect. Upon information and belief, Defendant Rumsfeld has not renounced or formally revoked or rescinded policies, orders and authorizations that caused Plaintiffs to be tortured and abused. Nor has Defendant Rumsfeld prohibited the use of all interrogation techniques contrary to U.S. and international law. Defendant Rumsfeld has not fulfilled his obligations to hold subordinates accountable for their derelictions and unlawful conduct. 228. The number of detainees in Iraq in U.S. military custody has risen unabated since the fall of 2004, and increased sharply since January 2005. As of the end of November 2005, the U.S. military is detaining in excess of 14,000 detainees in Iraq at Camp Bucca, Abu Ghraib, Camp Cropper and elsewhere. The U.S. military continues to engage in sweeps and to arrest and detain large numbers of civilians innocent of any wrongdoing on a regular basis in Afghanistan and Iraq. As of March 2005, detainees in Iraq are reported to remain detained an average of three to four months before their cases are reviewed. Although the U.S. military is reportedly releasing detainees after lengthy detentions and has released approximately 2,800 “security detainees” since the end of August 2005, the overall number of detainees continued to increase due to mass arrests and detention operations. The U.S. military is embarking on plans for expanded, state-of-the-art U.S. military detention facilities in Iraq estimated to cost $50 million.
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229. In Afghanistan, upon information and belief, the United States continues
to detain more than 500 individuals. The number of detainees held by the United States has
steadily risen since the summer of 2004. In the past 18 months, the number of detainees held by
the United States has increased by more than 40%.
230. Absent a revocation and prohibition of Defendants’ policies, practices and
patterns as well as affirmative policies, practices and procedures ensuring compliance with the
requirements of law, Plaintiffs and many others remain at risk of abuse and torture.
231. Upon information and belief, detainees in U.S. military custody in Iraq
and Afghanistan continue to suffer and to be at risk of abuse and torture in Iraq and Afghanistan
as evidenced by the following examples:
a. In September 2005, five soldiers with the 75th Ranger Regiment in Iraq allegedly abused three detainees awaiting transfer to a detention facility in September 2005, by punching, kicking and hitting with an object that was described as a broomstick.
b. Twelve soldiers with a California Army National Guard infantry battalion are alleged to have abused detainees in June 2005 by, among other things, using an electric stun gun on handcuffed and blindfolded detainees.
c. The death of a 20-year old detainee in detention at Abu Ghraib on August 15, 2005 is being investigated by the U.S. Army as a possible homicide.
d. In July 2005, two soldiers with an Alabama Army Reserve unit allegedly assaulted two Afghan detainees, striking them in the chest, shoulders and stomach.
e. Former Afghan detainees who were released some time after the fall of 2004 reported food and sleep deprivation, beatings, and being forced into stress positions.
f. Upon information and belief, on September 25, 2004, an Afghan detainee, Sher Mohammed Khan, died in U.S. custody in Afghanistan. When his family retrieved the body, it was badly bruised.
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g. Former members of the Army’s 82nd Airborne Division reported routine torture and abuse of detainees by members of their battalion at a U.S. base in Iraq in late 2003 through April 2004. The unit continued the torture and other cruel, inhuman or degrading treatment of detainees even after the public scandal surrounding torture at Abu Ghraib prison. After that publicity, one sergeant said, “things toned down. We still did it but we were careful.”
232. The continuation of abusive treatment demonstrates that Defendants’ measures have been inadequate to prevent abuse and torture of detainees and that the policies, practices and procedures of Defendants continue to cause torture and abuse of detainees.
233. Detainees remain fearful that they will be re-arrested and again tortured and abused if they speak out regarding their treatment. Upon information and belief, a former detainee in Iraq was forced by U.S. soldiers to sign a statement that he had not been abused even though he had been beaten on his legs with a bat, had his arms dislocated and nose crushed, and was subjected to an unloaded gun being placed in his mouth and the trigger pulled.
234. Upon information and belief, three released Iraqi detainees were told by American soldiers not to speak to the media regarding their treatment or they would be arrested again. Upon information and belief, another detainee asked for his name to be withheld from a press report for fear of retaliation by American soldiers. VI. CLAIMS
First Cause of Action Violation of Fifth Amendment Due Process Clause 235. The previous paragraphs are incorporated as if set forth fully herein. 236. Defendants’ actions described herein violate the Due Process Clause of the Fifth Amendment to the Constitution, which prohibits any person acting under color of U.S. law from engaging in or allowing torture, abuse or other treatment that that “shocks the conscience,” of any person in U.S. custody or control.
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237. In their conduct set forth in this Complaint, each of the Defendants acted under color of federal law.
238. Defendants’ actions, orders, authorizations, approvals and omissions caused the torture and abuse of Plaintiffs in violation of the Fifth Amendment and give rise to a cause of action for damages directly under the Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
239. Defendants had actual and constructive knowledge that their subordinates were violating the constitutional rights of Plaintiffs, and had actual and constructive knowledge that it was highly likely that these constitutional violations would occur as a result of their actions, orders, policies, practices and omissions. Despite this knowledge, Defendants acted with reckless and deliberate indifference to their subordinates’ unconstitutional actions. Through their actions and failures to act, Defendants expressly and tacitly authorized their subordinates’ unlawful conduct.
240. Defendants had power to formulate policies relating to the treatment and interrogation of detainees, and exercised that power to generate illegal practices, namely, the torture and other cruel, inhuman or degrading treatment of detainees in Iraq and Afghanistan.
241. Defendants Rumsfeld, Sanchez and Pappas directly and knowingly authorized subordinates to engage in conduct that shocks the conscience — namely, the torture and other cruel, inhuman or degrading treatment of detainees.
Second Cause of Action Violation of the Fifth and Eighth Amendment Prohibition on Cruel and Unusual Punishment 242. The previous paragraphs are incorporated as if set forth fully herein. 243. Defendants’ actions described herein violate the prohibition on cruel and unusual punishment in the Due Process Clause of the Fifth Amendment and the Cruel and
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Unusual Punishment Clause of the Eighth Amendment to the Constitution. Those amendments prohibit any person under color of U.S. law from engaging in or allowing torture, or other cruel, inhuman or degrading treatment or punishment or other treatment that constitutes deprivation of basic human needs such as food and reasonable safety, and the unnecessary and wanton infliction of pain on any person in U.S. custody or control. The Cruel and Unusual Punishment Clause of the Eighth Amendment and the Due Process Clause of the Fifth Amendment give rise to a cause of action for damages directly under the Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
244. Defendants and their subordinates authorized, ratified, and failed to stop and prevent the torture and other cruel, inhuman or degrading treatment of Plaintiffs and other detainees in U.S. custody, which occurred as a form of summary punishment for perceived or alleged wrongdoing and constituted imposition of sentence on Plaintiffs without an adjudication of guilt.
245. Defendants had power to formulate policies relating to the treatment and interrogation of detainees, and exercised that power to generate illegal practices, namely, the torture and other cruel, inhuman or degrading treatment of detainees in Iraq and Afghanistan.
246. Defendants were responsible for the command and supervision of individuals who subjected Plaintiffs and other detainees to torture and other cruel, inhuman or degrading treatment. Defendants knew that their subordinates had engaged in such unlawful activity, including actions undertaken maliciously and sadistically for the very purpose of causing unnecessary pain and harm to further unlawfully the interrogation, punishment, intimidation or coercion of Plaintiffs and other detainees. Defendants also knew that it was highly likely that their subordinates would continue to engage in such unlawful torture and other
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cruel, inhuman or degrading treatment or punishment. Yet Defendants acted with deliberate indifference and conscious disregard of the high likelihood of injury, and failed to take steps to prevent subordinates from engaging in such conduct.
Third Cause of Action Torture in Violation of the Law of Nations 247. The previous paragraphs are incorporated as if set forth fully herein. 248. Defendants’ actions described herein violate the law of nations which prohibits engaging in or permitting torture. The prohibition against torture is a “specific, universal, and obligatory” norm, from which no derogation is allowed. See Sosa v. AlvarezMachain, 124 S. Ct. 2739, 2763, 2766 (2004); U.N. Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85. 249. Defendants’ actions and omissions are the direct and proximate cause of Plaintiffs’ injuries and give rise to a cause of action for a tort in violation of the law of nations. 250. Defendants had effective command and control of individuals who intentionally and knowingly subjected Plaintiffs to torture, which is prohibited by the law of nations. 251. Defendants had actual and constructive knowledge of their subordinates’ torture of detainees in U.S. custody and each Defendant violated his or her duty as a commander to punish the perpetrators or otherwise to prevent further acts of torture.
Fourth Cause of Action Cruel, Inhuman or Degrading Treatment in Violation of the Law of Nations
252. The previous paragraphs are incorporated as if set forth fully herein. 253. Defendants’ actions described herein violate the law of nations which prohibits engaging in or permitting cruel, inhuman or degrading treatment or punishment. The
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prohibition against cruel, inhuman or degrading treatment is a “specific, universal, and obligatory” norm, from which no derogation is allowed. See U.N. Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85. Defendants’ actions and omissions are the direct and proximate cause of Plaintiffs’ injuries and give rise to a cause of action for a tort in violation of the law of nations.
254. Defendants had effective command and control of individuals who intentionally and knowingly subjected Plaintiffs to cruel, inhuman or degrading treatment, which is prohibited by the law of nations.
255. Each of the Defendants had actual and constructive knowledge of his or her subordinates’ torture of detainees in U.S. custody, but did not fulfill his or her duty as a commander to punish the perpetrators or otherwise to prevent further acts of cruel, inhuman or degrading treatment or punishment.
Fifth Cause of Action Violation of the Geneva Conventions 256. The previous paragraphs are incorporated as if set forth fully herein. 257. Plaintiffs were tortured and subjected to other cruel, inhuman or degrading treatment during their detentions in U.S. custody in violation of specific provisions of the Third and Fourth Geneva Conventions, including but not limited to Article 3 Common to all Four Conventions. 258. Violations of these provisions of the Geneva Conventions are direct and enforceable treaty violations as well as violations of the law of nations. 259. Defendants are liable for violations of Plaintiffs’ rights under the Geneva Conventions because Defendants formulated, authorized, approved, directed or ratified the torture and other cruel, inhuman or degrading treatment of Plaintiffs as part of a policy, pattern
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Case 1:05-cv-01378-TFH Document 6 Filed 01/05/06 Page 85 of 88
or practice. In addition, each Defendant is liable because his or her subordinates deliberately and intentionally engaged in the torture and other cruel, inhuman or degrading treatment of Plaintiffs while acting under the Defendant’s effective command and control, and the Defendants knew and had reason to know of their subordinates’ actions but failed to prevent or punish them.
Sixth Cause of Action Declaratory Relief for Violation of the Law of Nations, of the Geneva Conventions and of the Constitution 260. The previous paragraphs are incorporated as if fully set forth herein. 261. There is a real and actual controversy between Plaintiffs and Defendant Rumsfeld as to whether he has violated the Plaintiffs’ legal rights under the law of nations, binding treaties and the U.S. Constitution as a result of torture and other cruel, inhuman or degrading treatment or punishment of Plaintiffs while in U.S. custody. 262. Plaintiffs reasonably fear that they are at risk of and will again be subjected to Defendant Rumsfeld’s unlawful and unconstitutional actions, and seek a judicial declaration that Defendant Rumsfeld’s conduct deprived them of their rights under the law of nations, provisions of the Geneva Conventions, and the Fifth and Eighth Amendments to the U.S. Constitution. 263. The Court therefore should grant declaratory relief and any further necessary and proper relief as set forth below, pursuant to 28 U.S.C. §§ 2201, 2202. VII. PRAYER FOR RELIEF Plaintiffs therefore respectfully request that the Court enter a judgment including but not limited to: a. A declaration that the acts alleged herein are unlawful and violate
the U.S. Constitution, treaty provisions including provisions of the Geneva Conventions, military rules and guidelines, and the law of nations;
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b. A declaration that the policy, pattern, or practice of Defendant Rumsfeld alleged herein is unlawful and violates the U.S. Constitution, treaty provisions including provisions of the Geneva Conventions, military rules and guidelines, and the law of nations;
c. A declaration that assigns responsibility for Plaintiffs’ injuries to Defendants for their failure to take necessary and adequate measures to prevent persons under their effective command from engaging in the torture and other cruel, inhuman or degrading treatment or punishment of Plaintiffs and their failure to punish persons under their effective command for engaging in such conduct;
d. Compensatory damages for violation of the law of nations and the U.S. Constitution in an amount that is fair, just and reasonable;
e. Attorneys’ fees and costs; and f. All other appropriate relief as may be just and proper.
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VIII. JURY DEMAND Plaintiffs request a trial by jury in this action on each and every count alleged
herein.

Respectfully submitted,

______________________________ LUCAS GUTTENTAG CECILLIA D. WANG American Civil Liberties Union
Foundation Immigrants’ Rights Project 405 14th Street, Suite 300 Oakland, CA 94612 (510) 625-2010
STEVEN R. SHAPIRO OMAR C. JADWAT AMRIT SINGH STEVEN WATT American Civil Liberties Union
Foundation 125 Broad Street New York, NY 10004 (212) 549-2500

______________________________ MICHAEL POSNER* DEBORAH PEARLSTEIN* HINA SHAMSI* PRITI PATEL* Human Rights First 333 Seventh Avenue, 13th Floor New York, NY 10001-5004 (212) 845 5200
______________________________ BILL LANN LEE CHIMÈNE I. KEITNER NIREJ S. SEKHON Lieff Cabraser Heimann & Bernstein LLP Embarcadero Center West 275 Battery Street, Suite 3000 San Francisco, CA 94111-3339 (415) 956-1000

______________________________ ARTHUR B. SPITZER D.C. Bar No. 235960 American Civil Liberties Union
of the National Capital Area 1400 20th Street, N.W., Suite 119 Washington, D.C. 20036 (202) 457-0800

JOHN D. HUTSON* RADM, JAGC, USN (ret.) Of Counsel, Human Rights First Human Rights First 2 White Street Concord, NH 03301 (603) 228-1074

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Case 1:05-cv-01378-TFH Document 6 Filed 01/05/06 Page 88 of 88

JAMES P. CULLEN* BG, JAGC, USA (ret.) Of Counsel, Human Rights First 1251 Avenue of the Americas New York, NY 10020 (212) 278-1565

DAVID RUDOVSKY Kairys, Rudovsky, Epstein & Messing LLP 924 Cherry St., Suite 500 Philadelphia PA 19107 (215) 925-4400

PAUL HOFFMAN Schonbrun DeSimone Seplow Harris &
Hoffman LLP 723 Ocean Front Walk Venice, CA 90291 (310) 396-0731

ERWIN CHEMERINSKY Duke University School of Law Science Drive & Towerview Rd. Durham, NC 27707 (919) 613-7173

* Representing Plaintiffs against Defendant Rumsfeld only

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 CasCea1s:0e61-:m05c-0cv0-104153-7T8F-HTFHDoDcoucmumenetn4t819 Filed 03/27/027007PagPea1goef12of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

INRE:
IRAQ AND AFGHANISTAN DETAINEES LITIGATION
This document relates to:
ALI v. PAPPAS ALI v. RUMSFELD ALI v. KARPINSKI ALI v. SANCHEZ

Misc. No. 06-0145 (TFH)
Civ. No. 05-1377 (TFH) Civ. No. 05-1378 (TFH) Civ. No. 05-1379 (TFH) Civ. No. 05-1380 (TFH)

ORDER In accordance with the accompanying Memorandum Opinion, it is hereby ORDERED that the Motion to Dismiss filed by Thomas Pappas [05-CV-1377 Doc. No. 13] is GRANTED IN PART and DENIED IN PART as moot. It is also ORDERED that Defendant's and the United States' Motion to Dismiss [05-CV-1378 Doc. No. 10] is GRANTED in its entirety. It is also ORDERED that Defendant Janis Karpinski's Motion to Dismiss [05-CV-1379 Doc. No. 13] is GRANTED IN PART and DENIED IN PART as moot. In addition, it is also ORDERED that Lieutenant General Ricardo Sanchez's Motion to Dismiss Amended Complaint [05-CV-1380 Doc. No. 12] is GRANTED IN PART and DENIED IN PART as moot. Accordingly, it is further

CasCea1s:0e61-:m05c-0cv0-104153-7T8F-HTFHDoDcoucmumenetn4t819 Filed 03/27/027007PagPea2goef22of 2

ORDERED that the plaintiffs' cases shall be dismissed. SO ORDERED.

March :J 1M,2007

Thomas F. Hog Chief Judge '-----

2
-----'~.--------

 
 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Arkan Mohammed ALI, Thahe Mohammed SABBAR, Sherzad Kamal KHALID and Ali H.,
Plaintiffs,
v.
Thomas PAPPAS,
Defendant.

Case No. ______________
Date: March 1, 2005

COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES

I. INTRODUCTION 1. Plaintiffs are individuals who were incarcerated in U.S. detention facilities in Iraq
where they were subjected to torture or other cruel, inhuman or degrading treatment or punishment, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, confinement in a wooden box, forcible sleep and sensory deprivation, mock executions, death threats, and restraint in contorted and excruciating positions.
2. The Plaintiffs, Arkan Mohammed Ali, Thahe Mohammed Sabbar, Sherzad Kamal Khalid and Ali H., are among the unknown number of U.S. detainees in Iraq who have suffered torture or other cruel, inhuman or degrading treatment.
3. Plaintiffs bring this action against Defendant Colonel Thomas Pappas of the U.S. Army, who commanded U.S. military intelligence and military police forces in Iraq during the time Plaintiffs were detained and tortured. Defendant Pappas’ policies, patterns, practices, derelictions of duty and command failures caused Plaintiffs’ abuse. Defendant Pappas bears responsibility for the physical and psychological injuries that Plaintiffs have suffered.

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4. Official government reports have documented, and military officials have acknowledged, many of the horrific abuses inflicted on detainees in U.S. custody. Such torture or other cruel, inhuman or degrading treatment or punishment of detainees in U.S. custody violates the United States Constitution, U.S.-ratified treaties including the Geneva Conventions, military rules and guidelines, the law of nations, and our fundamental moral values as a nation.
5. For generations, U.S. civilian and military leaders have sought to ensure that U.S. soldiers complied with legal mandates prohibiting torture and abuse under all circumstances and at all times regardless of whether our enemies respect the same principles. U.S. Army Field Manual 34-52, which describes the legal standards governing interrogations by U.S. military personnel, unequivocally states that binding international treaties and U.S. policy “expressly prohibit acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation. Such illegal acts are not authorized and will not be condoned by the U.S. Army.” The Manual specifically defines “physical torture” to include “infliction of pain through chemicals or bondage,” “forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time,” “food deprivation,” and “any form of beating.” The Manual, moreover, admonishes that “[r]evelation of use of torture by U.S. personnel will bring discredit upon the U.S. and its armed forces while undermining domestic and international support for the war effort. It also may place U.S. and allied personnel in enemy hands at a greater risk of abuse by their captors. Conversely, knowing the enemy has abused U.S. and allied [prisoners of war] does not justify using methods of interrogation specifically prohibited by [international law] and U.S. policy.”
6. In stark contrast to these mandates and our traditions, the public record shows that detainees in U.S. custody in Iraq and Afghanistan were subjected to unlawful torture and abuse.

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Those abuses, which pervaded multiple U.S. detention centers in two separate countries, did not spring from the spontaneous acts of individual soldiers. As the report of former Defense Secretary James Schlesinger concluded, the abuses of detainees were “widespread,” and “were not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline. There is both institutional and personal responsibility at higher levels.”
7. The abuses occurred on a “widespread” basis because of orders and derelictions by Defendant Pappas and other military commanders and Defense Department officials. Most critically, Defendant Pappas and others, including Secretary of Defense Donald H. Rumsfeld, authorized an abandonment of our nation’s inviolable and deep-rooted prohibition against torture or other cruel, inhuman or degrading treatment or punishment of detainees in U.S. military custody. These acts precipitated further violations of law and directly led to the abuse of Plaintiffs and other detainees in Iraq. Among other consequences of Secretary Rumsfeld’s actions, high-ranking commanders, including Defendant Pappas, permitted and implemented an unlawful policy, pattern or practice of torture and other cruel, inhuman or degrading treatment of detainees.
8. In addition, and independent of his orders, authorizations and actions causing subordinates to commit torture and other cruel, inhuman or degrading treatment, Defendant Pappas also violated his legal duty by failing to stop torture or other cruel, inhuman or degrading treatment when he learned of it. Despite many credible and reliable reports of torture from governmental and non-governmental sources throughout the time of his command in 2003 and 2004, Defendant Pappas failed to take reasonable, necessary, timely and meaningful measures to prohibit and prevent abuses and to punish perpetrators. In doing so, Defendant Pappas violated

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his obligations as a commander and acted with deliberate indifference and conscious disregard of the high risk of injuries inflicted on detainees and the violations of law committed by his subordinates. These actions and omissions caused the torture and abuses to continue and to spread. Plaintiffs, among many others, were injured as a proximate result of Defendant Pappas’ conduct.
9. Defendant Pappas and other liable commanders cannot defend or rationalize the torture or other cruel, inhuman or degrading treatment of Plaintiffs and other detainees on the grounds that such techniques were deployed against carefully selected individuals who possessed critical intelligence information, or occurred only during the heat of battle, or were ordered under exigent circumstances. Most fundamentally, the prohibitions against torture or other cruel, inhuman or degrading treatment are absolute, non-discretionary and subject to no exception. They are designed not only to safeguard the security and dignity of every human being in times of armed conflict but also to ensure the humane treatment of U.S. soldiers when they are captured on the battlefield by enemy forces. Moreover and significantly, the International Committee of the Red Cross cited estimates by military intelligence that 70-90% of persons detained in Iraq had “been arrested by mistake.” Similarly, the Army Inspector General estimated that 80% of detainees “might be eligible for release” if their cases had been properly reviewed, and an internal military report cited estimates from the field that 85-90% of detainees at Abu Ghraib “were of no intelligence value.” Finally and critically, the unlawful orders, policies and practices did not issue under exigent circumstances or on the battlefield. Rather, the abuses had their genesis in and were continually reinforced by policies, patterns or practices deliberately formulated and adopted in the United States over long periods of time, were inflicted

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in numerous places over lengthy periods, and injured an unknown number of innocent civilian detainees, including Plaintiffs, who posed no threat to U.S. forces.
10. Defendant Pappas and others have not been held accountable for their acts, omissions and failures of command. To this day, Plaintiff victims of Defendant Pappas’ policies, practices, patterns and actions have received no redress for their injuries. Accordingly, Plaintiffs seek a declaration that determines the responsibility of Defendant Pappas for the violations of law that caused Plaintiffs’ injuries, and seek monetary compensation for the injuries the Plaintiffs suffered. II. JURISDICTION AND VENUE
11. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1350 (the Alien Tort Statute), and directly under the Constitution.
12. Venue is proper pursuant to 28 U.S.C. § 1391(b)(1)-(2) and (e). III. PARTIES
A. Plaintiffs 13. The Plaintiffs in this action are all former detainees of U.S. military forces in Iraq. Each of the Plaintiffs was tortured and/or subjected to cruel, inhuman or degrading treatment while in U.S. military custody. Each of the Plaintiffs was eventually released from U.S. custody without ever being prosecuted for any wrongdoing, and without ever receiving any redress for the injuries he suffered as a result of torture and other mistreatment. 14. Plaintiff Arkan Mohammed Ali (hereinafter “Arkan M. Ali”), age 26, is a citizen of Iraq who was detained by the U.S. military at various locations in Iraq for almost one year, from July 2003 to June 2004. The U.S. military assigned to Plaintiff Arkan M. Ali detainee number 115319. During his detention by the U.S. military, Plaintiff Arkan M. Ali was subjected

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to torture or other cruel, inhuman or degrading treatment, including but not limited to severe beatings to the point of unconsciousness, stabbing and mutilation, isolation while naked and hooded in a wooden coffin-like box, prolonged sleep deprivation enforced by beatings, deprivation of adequate food and water, mock execution and death threats. During relevant time periods, Plaintiff Arkan M. Ali was under the control and authority of Defendant Pappas and his subordinates.
15. Plaintiff Thahe Mohammed Sabbar, age 36, is a citizen of Iraq who was detained by the U.S. military for approximately six months from July 2003 to January 2004 at various locations in Iraq. The U.S. military assigned to Plaintiff Sabbar detainee numbers 12538 and 116676. During his detention by the U.S. military, Plaintiff Sabbar was subjected to torture or other cruel, inhuman or degrading treatment, including but not limited to severe beatings, sexual assault and humiliation, deprivation of adequate food and water, intentional prolonged exposure to dangerously high temperatures, mock execution and death threats. During relevant time periods, Plaintiff Sabbar was under the control and authority of Defendant Pappas and his subordinates.
16. Plaintiff Sherzad Kamal Khalid, age 34, is a citizen of Iraq who was detained by the U.S. military at various locations in Iraq for approximately two months from July 2003 through September 2003. The U.S. military assigned to Plaintiff Khalid detainee number 12537. During his detention by the U.S. military, Plaintiff Khalid was subjected to torture or other cruel, inhuman or degrading treatment, including but not limited to frequent and severe beatings, sexual abuse involving assault and threats of anal rape, deprivation of adequate food and water, mock executions, death threats, intentional exposure to dangerously high temperatures, and

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prolonged sleep deprivation enforced by beatings. During relevant time periods, Plaintiff Khalid

was under the control and authority of Defendant Pappas and his subordinates.

17. Plaintiff Ali H. (hereinafter “Ali H.”), age 19, is a citizen of Iraq who was

detained by the U.S. military at various locations in Iraq for approximately four weeks from

August to September 2003. At the time of his detention, Plaintiff Ali H. was a minor and high

school student. The U.S. military assigned to Plaintiff Ali H. detainee number 14358. During

his detention by the U.S. military, Plaintiff Ali H. was subjected to torture or other cruel,

inhuman or degrading treatment, including but not limited to intentional withholding and delay

of necessary medical treatment to cause pain, fear and humiliation; intentional infliction of pain

after surgery by dragging him from one location to another and forcefully ripping away the

surgical dressing, and by exposing him to infection by leaving his surgical wound half-bandaged;

and intentional deprivation of adequate food and water. During relevant time periods, Plaintiff

Ali H. was under the control and authority of Defendant Pappas and his subordinates.

B. Defendant

18. Defendant Colonel Thomas Pappas, of the U.S. Army, is and was, at relevant

times, the commander of the 205th Military Intelligence Brigade, the unit of the U.S. Army

responsible for intelligence gathering in Iraq. He took command of the 205th Military

Intelligence Brigade on July 1, 2003. On information and belief, he remains in that command to

date. In November 2003, he was given command of the Joint Interrogation and Debriefing

Center (“JIDC”) at Abu Ghraib. In that command, Defendant Pappas supervised and

commanded all military personnel at Abu Ghraib, including individual military personnel

responsible for the detention and interrogation of detainees. Defendant Pappas is a citizen of the

United States and maintains his primary residence in Connecticut. He is sued in his individual

capacity.

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C. Related-Action Defendants 19. In addition to this action against Defendant Pappas, Plaintiffs are bringing

separate actions against three other high-ranking officials with responsibility for detainees in

U.S. custody in Iraq in the various federal district courts that have personal jurisdiction over

those defendants. In addition to Defendant Pappas, Plaintiffs are suing the following officials:

Donald Rumsfeld, who is and was at all relevant times the U.S. Secretary of Defense; Lieutenant

General Ricardo Sanchez, who was the commander of Coalition Joint Task Force 7 (“CJTF-7”),

the U.S.-led military coalition forces in Iraq, from June 2003 to July 2004; and Brigadier General

Janis Karpinski, who commanded the 800th Military Police Brigade, the unit of the U.S. Army

responsible for detention facilities in Iraq, from approximately June 2003 to May 2004.

Hereinafter, this complaint will refer to the defendants in these other actions as the “Related-

Action Defendants.”

IV. LEGAL FRAMEWORK 20. The prohibition against torture is a peremptory jus cogens norm from which no

derogation is allowed. It is universally recognized and is binding on all persons under all

circumstances. As U.S. courts have recognized, the torturer, “like the pirate and slave trader

before him,” is “hostis humanis generis, an enemy of all mankind.” Filartiga v. Pena-Irala, 630

F. 2d 876, 890 (2d Cir. 1980). Torture or other cruel, inhuman or degrading treatment of

detainees is universally prohibited by the laws of all civilized societies in clear and unambiguous

terms. Article 17 of the Third Geneva Convention, included as part of U.S. Army Field Manual

27-10, The Law of Land Warfare, provides that “no physical or mental torture, nor any other

form of coercion, may be inflicted on prisoners of war to secure from them information of any

kind whatever.” Article 32 of the Fourth Geneva Convention, also incorporated in Field Manual

27-10, prohibits the torture of civilians. Article 3 Common to all Four Geneva Conventions

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expressly prohibits “violence to life and person, … murder of all kinds, mutilation, cruel treatment and torture….” The U.N. Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85, which was ratified by the United States in 1994, confirms the nonderogable nature of this prohibition. The U.S. Supreme Court recently reaffirmed that torture is among the gravest violations of the law of nations. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2763 (2004); id. at 2783 (Breyer, J., concurring).
21. U.S. military law and regulations incorporate these international and domestic prohibitions against the use of torture or other cruel, inhuman or degrading treatment, and obligate U.S. military personnel to abide by those binding norms. Article 93 of the Uniform Code of Military Justice imposes criminal liability on members of the U.S. military who mistreat detainees in their custody. Army Field Manual 34-52, which governs the conduct of interrogations by military interrogators, unambiguously prohibits “acts of violence or intimidation, including physical or mental torture, threats, insults or exposure to inhumane treatment as a means of or aid to interrogation.” Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, prohibits “the use of physical or mental torture or any coercion to compel prisoners to provide information[,]” and provides that “[n]o form of physical torture or moral coercion will be exercised against the [civilian internee].”
22. No circumstance excuses torture or other cruel, inhuman or degrading treatment. In 1999, the United States declared in its initial report to the U.N. Committee Against Torture:
Torture … is categorically denounced as a matter of policy and as a tool of state authority. … No official of the Government, federal or state, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or

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tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on ground of exigent circumstances … or on orders from a superior officer or public authority, and the protective mechanism of an independent judiciary are not subject to suspension. 23. In the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which the United States ratified in 1994, torture is defined as “any act
by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of having committed,
or intimidating or coercing him or a third person … when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public official or other person acting
in an official capacity.”
24. In the 2003 country reports on human rights, the U.S. Department of State
condemned other countries for abuse of prisoners and identified beatings, blindfolding, denials of
food and water, dog attacks, use of forced painful positions, mock executions, slapping, sleep
deprivation, solitary confinement, stripping, and threats of sexual abuse as serious violations of
human rights. A report posted on the White House website condemns as torture the following
acts, among others, of the Saddam Hussein regime: denial of food and water, threats to rape or
otherwise harm family members and relatives, pulling out of fingernails, extended solitary
confinement in dark and extremely small compartments, and beatings. These condemnations
reflect an absolute U.S. policy against torture, emphasized by President Bush on June 22, 2004,
when he declared that “the values of this country are such that torture is not a part of our soul and
our being.” The Justice Department recognized in its recent Office of Legal Counsel

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memorandum dated December 30, 2004 that “[t]orture is abhorrent both to American law and values and to international norms,” and endorsed court decisions that define torture to include such conduct as death threats, frequent beatings, sleep deprivation and extended shackling.
25. In order to ensure that these fundamental protections are enforced, U.S. law, the law of nations, and binding treaty provisions provide for the liability of military or civilian commanders who authorize their subordinates to commit torture or other cruel, inhuman or degrading treatment of prisoners.
26. The Fifth and Eighth Amendments to the U.S. Constitution prohibit torture or other cruel, inhuman or degrading treatment. The Fifth Amendment to the Constitution prohibits conduct against persons in U.S. custody that “shocks the conscience,” including torture. Rochin v. California, 342 U.S. 165, 172-73 (1952). The Eighth Amendment also prohibits such conduct, as its core function is “to proscribe torture and other barbarous methods of punishment.” Estelle v. Gamble, 429 U.S. 97, 102 (1976).
27. U.S. civilian and military commanders and officials are prohibited from violating the prohibitions of the U.S. Constitution, and are liable for injuries caused by their direct orders. Supervisors are also liable for the constitutional violations of their subordinates when (1) they knew or had reason to know that their subordinates were subjecting detainees in U.S. custody to torture and other abuse that shocks the conscience; (2) despite such knowledge, they created and left in place conditions in which torture or other cruel, inhuman or degrading treatment would occur; (3) they understood the substantial likelihood that torture and other abuse would ensue, but acted with deliberate indifference or conscious disregard of that likelihood and failed to take steps to prevent it; and (4) their actions were the proximate cause of injuries suffered by

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plaintiffs. See, e.g., Farmer v. Brennan, 511 U.S. 825, 839 (1994); Estelle, 429 U.S. at 106; Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988).
28. The law of nations also imposes liability on superior officers for the acts of their subordinates. If the superior officer issues an order that is lawful on its face, liability attaches if the commanding officer knows of the substantial likelihood that torture or other cruel, inhuman or degrading treatment will result from the execution of the order. The doctrine of command responsibility, recognized by the U.S. Supreme Court since In re Yamashita, 327 U.S. 1 (1946), imposes liability on superior officers if they (1) exercised effective control over those subordinates who engaged in torture and other mistreatment of plaintiff detainees in violation of the law of nations; (2) knew or had reason to know of their subordinates’ unlawful conduct; and (3) despite such knowledge, failed to take reasonable and necessary measures to prevent their subordinates’ conduct. V. FACTUAL ALLEGATIONS
A. General Allegations 29. The U.S. military maintains detention facilities in Afghanistan and Iraq at which Plaintiffs and others in U.S. military custody were tortured or otherwise abused by U.S. military personnel and others acting under the direction of or with the authorization of the U.S. military, pursuant to a policy, pattern or practice of misconduct. 30. The torture or other cruel, inhuman or degrading treatment of Plaintiffs alleged in this complaint occurred in enclaves under the exclusive jurisdiction of the United States and the exclusive control of the U.S. military. Access to detainees by any person including agents or employees of other governments and other U.S. government agencies is and was only with the express or tacit permission of the U.S. military.

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31. Until the actions, omissions and derelictions of Defense Secretary Rumsfeld, Defendant Pappas and others alleged herein, the Armed Forces of the United States were absolutely forbidden to engage in torture or other cruel, inhuman or degrading treatment or punishment. No exceptions were permitted and no such conduct was authorized.
32. Related-Action Defendant Rumsfeld and other high-ranking military leaders began to abandon the absolute prohibition against torture soon after the military conflict in Afghanistan began. Secretary Rumsfeld’s policies and practices authorized the use of interrogation techniques -- which were forbidden under military regulations -- against detainees arrested in Afghanistan, both in that country and at the U.S. detention facility at Guantanamo Bay, Cuba. Through further policies, practices and derelictions of duty, which extended those illegal techniques to Iraq, Secretary Rumsfeld, Defendant Pappas and other commanders further compromised the prohibitions against torture or other cruel, inhuman or degrading treatment. Because of their policies, patterns, practices, acts, and omissions, the inviolable and deep-rooted prohibition of torture or cruel, inhuman or degrading treatment of detainees in U.S. custody was altered and abandoned.
33. Defendant Pappas and the Related-Action Defendants issued orders, adopted policies and granted authorizations that fundamentally altered the interrogation practices of the U.S. military. Through his actions and derelictions, Defendant Pappas expressly authorized, encouraged and permitted cruel, inhuman or degrading treatment and torture. He issued critical orders and directives that led to widespread torture and abuse, knew of torture and abuse of detainees by his subordinates in Iraq, and failed to prevent and punish such conduct. As a direct and predictable result of Defendant Pappas’ actions and omissions, the U.S. military engaged in

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practices that violated the absolute prohibition against torture or other cruel, inhuman or degrading treatment.
34. Defendant Pappas’ unlawful conduct was part of a policy, pattern or practice that originated in and was directed from the United States. The acts and omissions in the United States constituting that policy, pattern or practice include: Related-Action Defendant Rumsfeld’s authorization of harsh interrogation techniques; his application of intense pressure on subordinates to obtain intelligence; his and Under Secretary of Defense Stephen Cambone’s decision to send U.S. Army Major General Geoffrey Miller to Iraq to implement policies that predictably led to torture; Secretary Rumsfeld’s tolerance and acceptance of torture; his command failure to investigate or punish subordinates for their acts; and his command failure to issue unequivocal orders to stop or prohibit torture or other cruel, inhuman or degrading treatment when he knew and should have known of the torture or other cruel, inhuman or degrading treatment of detainees in U.S. military custody in Afghanistan, Guantanamo and Iraq.
35. As a consequence of Related-Action Defendant Rumsfeld’s actions, including the visit of Major General Geoffrey Miller to Iraq, Defendant Pappas and Related-Action Defendant Sanchez issued policies and authorizations that expressly permitted cruel, inhuman or degrading treatment and that tolerated or authorized torture. Defendant Pappas, who was in command of military intelligence forces in Iraq and the Joint Interrogation and Debriefing Center at Abu Ghraib, promulgated and implemented policies causing, allowing and failing to prevent or stop torture and abuse in Iraq; knew of torture and abuse of detainees by his subordinates; and failed to prevent and punish such conduct.
36. As a further consequence of Related-Action Defendant Rumsfeld’s actions, Related-Action Defendant Karpinski, who was under Related-Action Defendant Sanchez’s

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command and herself commanded military police in Iraq, executed the unlawful policies, patterns or practices causing torture and abuse; knew of torture and abuse of detainees by her subordinates; and failed to prevent and punish such conduct.
37. As a further consequence of Secretary Rumsfeld’s actions, Defendant Pappas, who was under Related-Action Defendant Sanchez’s command and himself in command of military intelligence personnel in Iraq, executed the unlawful policies, patterns or practices causing torture and abuse; knew of torture and abuse of detainees by his subordinates; and failed to prevent and punish such conduct.
38. Defendant Pappas’ actions and derelictions caused the torture and abuse of detainees in Iraq to continue and to spread. Defendant Pappas and the Related-Action Defendants knew that the abuse was widespread and systemic. They did not stop or prevent it because they accepted it and acted with deliberate indifference and conscious disregard of the high likelihood that their actions and derelictions would cause their subordinates to torture and otherwise mistreat detainees in U.S. custody.
39. These actions, orders, authorizations, and derelictions caused the Plaintiffs in this action and at least hundreds of other civilian, non-combatant detainees in Afghanistan and Iraq to be tortured and otherwise abused in violation of the U.S. Constitution, U.S.-ratified treaties including the Geneva Conventions, and the law of nations.
40. Defendant Pappas is among the civilian officials and military commanders in positions of responsibility whose violations of law have come to light as a result of publicly disclosed reports, documents and other information. Upon information and belief, other civilian officials and military commanders are also liable for the torture or other cruel, inhuman or

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degrading treatment suffered by Plaintiffs and other detainees. Such additional individuals may

also be named as defendants as additional information about their conduct comes to light.

B. Defendant’s Actions and Failures of Command 1. Defendant’s Interrogation Policies, Patterns or Practices
41. Defendant Pappas, along with the Related-Action Defendants, was at all relevant

times personally responsible for developing, authorizing, supervising, and/or implementing the

policies, patterns or practices governing the detention and interrogation of detainees in Iraq

during the time that the Plaintiffs were in the custody of the U.S. military. These policies,

patterns or practices directly caused the widespread and systemic torture or other cruel, inhuman

or degrading treatment of Plaintiffs and other detainees in violation of the U.S. Constitution,

treaty provisions including the Geneva Conventions, military rules and guidelines, and the law of

nations. The policy, pattern or practice which ultimately led to the torture and other

mistreatment of Plaintiffs and other detainees in Iraq began at least by December 2, 2002, when

Related-Action Defendant Rumsfeld personally approved a list of illegal interrogation techniques

(the “December Rumsfeld Techniques”) for use on detainees at Guantanamo. As set forth

below, the December Rumsfeld Techniques included techniques later used by subordinates in

Afghanistan and Iraq with Related-Action Defendant Rumsfeld’s knowledge and approval.

These techniques were contrary to the established rules and military standards governing

detention and interrogation as set forth in Army Field Manual 34-52. The December Rumsfeld

Techniques included the following: the use of “stress positions,” 20-hour interrogations, the

removal of clothing, playing upon a detainee’s phobias to induce stress (such as through the use

of dogs), deception to make the detainee believe the interrogator was from a country with a

reputation for torture, the use of falsified documents and reports, isolation for up to 30 days, and

sensory deprivation.

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42. According to documents released by the U.S. government pursuant to a court order in litigation under the Freedom of Information Act, American Civil Liberties Union Foundation, et al. v. Dep’t of Defense, et al., No. 04-cv-4151 (AKH) (S.D.N.Y. 2004), the Federal Bureau of Investigation began to document and complain about the interrogation techniques used by the military on detainees in Guantanamo as early as late 2002. FBI complaints were also communicated to Major General Miller.
43. On January 15, 2003, Secretary Rumsfeld rescinded his blanket authorization of only some of the techniques in the December Rumsfeld Techniques. However, he failed to take any meaningful action to prevent, investigate, or punish the use of these unlawful techniques. Instead, in an order to the commander of the U.S. Southern Command, Secretary Rumsfeld stated that he personally could authorize the continued use of the otherwise-rescinded techniques, and that he wanted to be involved in the formulation of a plan to use them: “Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me. Such a request should include a thorough justification for the employment of those techniques and a detailed plan for the use of such techniques.”
44. Also on January 15, 2003, Secretary Rumsfeld directed the General Counsel of the Department of Defense to convene a “Working Group” on interrogation techniques for his personal review and consideration. For its analysis, the Working Group solicited information from U.S. military officers in Afghanistan concerning techniques being used by U.S. forces there.
45. By December 2002, interrogators in Afghanistan had begun using harsh interrogation techniques on detainees, including the use of stress positions, dogs to induce fear,

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and sensory deprivation. These techniques are inconsistent with those listed in Army Field Manual 34-52. At the Working Group’s request, military commanders in Afghanistan forwarded descriptions of these techniques to the Department of Defense. The Working Group did not express any objection to any of the techniques in use in Afghanistan. U.S. personnel continued to use those techniques despite their inconsistency with standing military doctrine embodying international and domestic legal norms.
46. The Working Group reported to Secretary Rumsfeld on April 4, 2003, and recommended 35 interrogation techniques for use at Guantanamo. On April 16, 2003, Secretary Rumsfeld personally approved the use of 24 of the techniques (the “April Rumsfeld Techniques”). These April Rumsfeld Techniques were based in part on information about techniques previously used by U.S. personnel in Afghanistan.
47. At the time Secretary Rumsfeld issued the April Rumsfeld Techniques, reports of widespread and systemic detainee abuse in Afghanistan had already surfaced, and Secretary Rumsfeld knew and should have known of them.
48. The April Rumsfeld Techniques included isolation for up to thirty days, dietary manipulation, environmental manipulation, “sleep adjustment,” and “false flag” (leading detainees to believe that they have been transferred to a country that permits torture), none of which is consistent with the authorized interrogation techniques in Army Field Manual 34-52. Secretary Rumsfeld again provided that even harsher techniques could be used with his personal authorization. As set forth below, the April Rumsfeld Techniques, many of which had been used already in Afghanistan, were later used in Iraq by U.S. personnel under Defendant Pappas’ command.

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49. On information and belief, in the summer of 2003, Secretary Rumsfeld and Under Secretary of Defense Cambone knew of widespread torture and other abuse of detainees in Iraq and Guantanamo. However, they took no steps to prevent or punish these abuses. Instead, Secretary Rumsfeld took measures to increase the pressure on interrogators in a manner that he knew was highly likely to result in further torture or other cruel, inhuman or degrading treatment. Defendant Pappas and his subordinates carried out those measures in Iraq.
50. On information and belief, Under Secretary Cambone supervised and implemented, and Secretary Rumsfeld approved, the activities of a clandestine program composed jointly of U.S. military and CIA personnel. This program began operations in Iraq in or around the summer of 2003. On information and belief, members of this program were authorized to use unlawful interrogation tactics, including physical and sexual humiliation, against Iraqi detainees.
51. In addition, Secretary Rumsfeld and Under Secretary Cambone sent Major General Geoffrey Miller, who was then the commander of the U.S. military joint task force at Guantanamo, to Iraq to deploy more aggressive interrogation methods on a widespread basis. In public testimony to Congress, Under Secretary Cambone admitted that Miller was sent to Iraq with his “encouragement” “to make certain that [the United States] had the proper conditions within [detention facilities in Iraq] in order for . . . information to be gathered.” According to Related-Action Defendant Karpinski, Miller told her that he was sent by Secretary Rumsfeld and Cambone to “gitmo-ize” detention facilities there by causing Guantanamo interrogation practices to be used on detainees in Iraq.
52. On information and belief, Related-Action Defendants Rumsfeld and Sanchez knew that Miller intended to apply in Iraq the techniques that Secretary Rumsfeld had approved

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for use at Guantanamo, among others. On information and belief, Secretary Rumsfeld also knew and should have known about the widespread detainee torture or other cruel, inhuman or degrading treatment of detainees at Guantanamo and in Afghanistan while those techniques were in use. Thus, Secretary Rumsfeld knew that it was highly likely that his actions in approving Miller’s visit to Iraq would exacerbate the abuse of detainees there. On information and belief, Defendant Pappas also knew of the high risk that application of Miller’s techniques would result in torture and other cruel, inhuman and degrading treatment of detainees.
53. As a result of the order by Secretary Rumsfeld and Cambone, Miller and his team caused illegal interrogation techniques from Guantanamo to be used against detainees in Iraq. Miller’s team consisted of 17 military personnel, all of whom had served at Guantanamo. Miller and his team used the April Rumsfeld Techniques as a “baseline” for recommending new, harsher interrogation techniques for use at the U.S. detention facility at Abu Ghraib in Iraq. According to Defendant Pappas, detainee policies and procedures at Abu Ghraib were enacted as a specific result of Miller’s visit.
54. Related-Action Defendant Karpinski has stated that Miller told her that detainees at Guantanamo were “treated like dogs,” and that he recommended the same for detainees in Iraq. General Karpinski admitted that she did not have authority to allow military intelligence operatives to control conditions at Abu Ghraib. However, she acquiesced in Major General Miller’s plan to do so. General Karpinski has further stated that Miller informed her that Related-Action Defendant Sanchez had given Miller complete authority to take over any detention facility he wanted. General Karpinski carried out the plans of Related-Action Defendant Sanchez and Major General Miller, thus abdicating her duty as a commander to prevent torture or other cruel, inhuman or degrading treatment.

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55. Among other techniques, General Miller recommended the use of dogs with detainees in Iraq. On information and belief, dogs were intentionally used to instill fear in detainees and the practice was based on the belief that Arabs have a culturally-based fear of dogs. Based on Miller’s recommendation, Defendant Pappas instituted the use of dogs to “set[ ] the atmosphere for which, you know, you could get information.”
56. In the summer of 2003, in anticipation of obtaining approval for harsher interrogation practices, a member of Related-Action Defendant Sanchez’s staff transmitted an email message asking military intelligence personnel in Iraq to provide by August 17, 2003 a “wish list” of interrogation techniques they wished to use. The email stated the “gloves are coming off,” and “we want these individuals broken.”
57. In early 2003, Captain Carolyn Wood and members of the 519th Military Intelligence Battalion under her command were transferred from Afghanistan to Iraq. Previously, while deployed in Afghanistan, members of the 519th Military Intelligence Battalion under Wood’s command had killed two detainees. In July 2003, Captain Wood and her battalion were assigned to Abu Ghraib. After arriving in Iraq, Captain Wood proposed a list of 30 interrogation techniques for use at Abu Ghraib to Related-Action Defendant Sanchez for approval. General Sanchez’s staff approved these techniques. On information and belief, the approved techniques included stress positions, sensory and sleep deprivation, and use of dogs.
58. On September 14, 2003, in response to General Miller’s call for Guantanamo-like interrogation policies for use in Iraq, as directed by Secretary Rumsfeld, and a request for guidance from the 519th Military Intelligence Battalion, Related-Action Defendant Sanchez signed a memorandum authorizing the use of 29 interrogation techniques (the “September Sanchez Techniques”), 12 of which were inconsistent with Army Field Manual standards,

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including five that went beyond those authorized by Secretary Rumsfeld for use at Guantanamo. The September Sanchez Techniques included the use of dogs, stress positions, and sensory deprivation. The September Sanchez Techniques were based on two sources: (1) the April Rumsfeld Techniques, which General Miller gave to General Sanchez earlier in the month, and (2) suggestions from Captain Wood, who brought with her a list of techniques that had been used by the 519th Military Intelligence Battalion in Afghanistan. General Sanchez issued the September Sanchez Techniques a few days after Secretary Rumsfeld visited the U.S. detention facility at Abu Ghraib.
59. In his September Sanchez Techniques, Related-Action Defendant Sanchez specified that his personal approval was required for the use of dogs, stress positions, yelling, loud music, and light control. Thus, General Sanchez was intimately and directly involved in the use of unlawful interrogation techniques against detainees in his custody in U.S. military facilities in Iraq.
60. On October 12, 2003, Related-Action Defendant Sanchez modified his previous September 14, 2003, authorization of particular techniques, but continued to authorize interrogators to “control” the lighting, heating, food, shelter, and clothing given to detainees. Although General Sanchez’s October 12 order placed certain restrictions on the use of dogs, such as requiring a muzzle, he continued to permit the use of dogs in interrogations, provided that interrogators applied for and received prior authorization. General Sanchez indicated that he could approve the use of such techniques on a case-by-case basis.
61. Defendant Pappas carried out the policies and practices of Related-Action Defendants Rumsfeld and Sanchez, knowing that they were unlawful and were highly likely to lead to torture and other cruel, inhuman and degrading treatment by his subordinates. For

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example, while in command at the Abu Ghraib prison, Defendant Pappas authorized the following interrogation techniques: sleep deprivation, use of dogs to intimidate detainees, shackling, and forced stripping of detainees.
62. Defendant Pappas and the Related-Action Defendants issued the foregoing unlawful interrogation policies and caused other such policies to be issued by others, while simultaneously pursuing policies that fostered and condoned torture or other cruel, inhuman or degrading treatment. Specifically, Defendant Pappas and the Related-Action Defendants caused the implementation of unorthodox command structures, permitted personnel responsible for detention and interrogation to operate with inadequate training, and pressured subordinates to produce intelligence through interrogations at all costs.
63. Defendant Pappas and the Related-Action Defendants established command structures that were contrary to military doctrine, in a manner highly likely or calculated to cause torture or other cruel, inhuman or degrading treatment. For example, high-level commanders in Iraq implemented a recommendation by General Miller – whom Related-Action Defendant Rumsfeld had sent to Iraq – that military intelligence and military police work together to “set the conditions for interrogations.” The use of military police soldiers as assistance for interrogation was improper and done for the purpose of inflicting abuse on detainees to make them compliant during interrogation. Military intelligence officers told military police soldiers, who were untrained in detainee interrogation tactics, to “make sure” that a detainee “has a bad night,” or “make sure he gets the treatment.”
64. This improper and dangerous misuse of military police personnel was specifically implemented at Abu Ghraib by Defendant Pappas. On November 19, 2003, Related-Action Defendant Sanchez appointed Defendant Pappas of the 205th Military Intelligence Brigade as the

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base commander for Abu Ghraib prison, and made him responsible for the support of all military police assigned to the prison. This command structure was contrary to existing military doctrine because Defendant Pappas was a military intelligence officer and should not also have commanded military police, and exacerbated the confusion as to who was in charge at the prison. Moreover, Defendant Pappas directly encouraged subordinates to torture or otherwise mistreat detainees. Military police soldiers under the command of Defendant Pappas have stated that he encouraged them to “soften up” detainees for interrogation, which they understood to mean physical and mental abuse.
65. Defendant Pappas and the Related-Action Defendants also increased the likelihood that subordinates would torture and otherwise abuse detainees by tolerating a lack of adequate training in detainee and interrogation operations for subordinate military personnel, with knowledge that the lack of training was contributing to an atmosphere permissive of torture or other cruel, inhuman or degrading treatment.
66. Official government reports have pointed to “intense pressure felt by the personnel on the ground to produce actionable intelligence from detainees” as the cause of the torture or other cruel, inhuman or degrading treatment. According to Related-Action Defendant Sanchez, high-ranking officers, including, on information and belief, Related-Action Defendant Rumsfeld, placed “great pressure . . . upon the intelligence system to produce actionable intelligence.” Defendant Pappas claims that he felt “intense pressure” placed on him by superior officers “for intelligence from interrogations.” Defendant Pappas in turn put great pressure on his subordinates for intelligence.
67. On information and belief, Defendant Pappas never renounced, revoked or rescinded policies, orders and authorizations that caused Plaintiffs to be tortured and subjected to

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cruel, inhuman or degrading treatment by Defendants’ subordinates. Despite widespread and

systemic abuse of detainees, Defendant Pappas never unequivocally revoked authorization for

and prohibited use of all interrogation techniques contrary to the U.S. Army Field Manual.

2. Defendant’s Knowledge of Torture and Abuse of Detainees

68. Independent of the orders or authorizations of Defendant Pappas and the Related-

Action Defendants, beginning as early as 2002, and both before and throughout the time

Plaintiffs were detained in U.S. custody, U.S. Defense Department and military officials knew

and should have known that individuals under their actual and effective command were engaging

in or permitting the torture and other abuse of detainees in U.S. custody in violation of U.S. and

international law. Despite his knowledge of the torture and other cruel, inhuman and degrading

treatment of detainees, Defendant Pappas failed to take reasonable and necessary steps to

prohibit, prevent and end the torture and abuse by his subordinates.

69. Defendant Pappas and the Related-Action Defendants had actual and constructive

knowledge of torture and other cruel, inhuman or degrading treatment based on numerous

sources including but not limited to those set forth in the following paragraphs.

70. In or about early 2002, soon after the start of military actions in Afghanistan,

Related-Action Defendant Rumsfeld had actual notice of torture and other abuse of detainees

arrested by U.S. forces in Afghanistan. In December 2001, John Walker Lindh, a U.S. citizen

arrested and detained by the U.S military in Afghanistan, was photographed while stripped naked

and bound to a stretcher.

71. On January 7, 2002, the non-governmental organization Amnesty International

wrote a letter to Related-Action Defendant Rumsfeld expressing concern about the treatment of

detainees captured in Afghanistan. It noted in the letter that “as well as hooding, the following

methods of interrogation may not be used as they violate the prohibition of torture and ill-

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treatment: restraining in very painful conditions; playing of loud music; prolonged sleep deprivation; threats, including death threats; violent shaking; and using cold air to chill the detainee.”
72. On January 22, 2002, Amnesty International sent another letter to Related-Action Defendant Rumsfeld, complaining about the treatment of detainees.
73. On April 10, 2002, Amnesty International again sent a lengthy memorandum to Secretary Rumsfeld, among others, in order to bring attention to allegations of mistreatment of detainees in Afghanistan and at Guantanamo. Secretary Rumsfeld was questioned about the April 10, 2002, Amnesty International memorandum during a news briefing on April 15, 2002.
74. On information and belief, in late 2002, a high-ranking Defense Department official who reported directly to Secretary Rumsfeld received complaints from agents of the Federal Bureau of Investigation (“FBI”) about abusive interrogation tactics used against detainees at Guantanamo. On information and belief, Secretary Rumsfeld was aware of these complaints.
75. Documents produced by the Department of Defense pursuant to litigation under the Freedom of Information Act, see American Civil Liberties Union Foundation, et al. v. Dep’t of Defense, et al., No. 04-cv-4151 (AKH) (S.D.N.Y. 2004), reveal that in August 2002, the Criminal Investigations Command found probable cause to charge a team of four U.S. military personnel with the murder of an Afghan detainee in U.S. custody and a conspiracy relating to the murder. The Criminal Investigations Command also found probable cause to charge a fifth U.S. soldier with being an accessory after the fact, and found that the team’s commander had instructed a soldier to destroy incriminating photographs of the victim’s body. Despite the Criminal Investigations Command’s findings, the Commander’s Report recorded no court-

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martial proceedings in the case and no disciplinary action other than a single written reprimand of one soldier.
76. Secretary Rumsfeld and other U.S. civilian officials and military commanders knew of widespread detainee mistreatment in Afghanistan on or before December 26, 2002, when the Washington Post reported on regular, systemic abuses at the U.S. Air Base at Bagram, including the use of “stress and duress” techniques that constitute torture or other cruel, inhuman or degrading treatment. Regarding the interrogation of detainees at the U.S. military base by agents of the Central Intelligence Agency, the article quoted a U.S. government official as saying, “if you don’t violate someone’s human rights some of the time, you probably aren’t doing your job.” The same article reported that U.S. military personnel were used to “soften up” detainees for interrogation.
77. In December 2002, two Afghan detainees, Mullah Habibullah and Dilawar, were killed in U.S. custody at the Bagram detention facility while being interrogated by members of the 519th Military Intelligence Battalion. Although U.S. military physicians had concluded that the cause of the detainees’ deaths was homicide, the commander of U.S. military forces in Afghanistan continued to insist publicly that the two detainees had died of natural causes.
78. On December 26, 2002, the nongovernmental organization Human Rights Watch wrote to President Bush and transmitted a copy of the letter to Related-Action Defendant Rumsfeld, asking that allegations of torture at the Bagram detention facility in Afghanistan be investigated immediately.
79. On January 14, 2003, executive directors of various human rights organizations wrote to Deputy Secretary of Defense Paul Wolfowitz and asked that the United States

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promulgate clear guidelines to prevent torture. On information and belief, Secretary Rumsfeld received notice of that letter.
80. On February 5, 2003, Amnesty International met with William J. Haynes, the General Counsel of the Department of Defense, to discuss allegations of torture and ill-treatment of detainees in Guantanamo and Afghanistan. On information and belief, the General Counsel of the Department of Defense reports directly to Secretary Rumsfeld.
81. In March 2003, prominent newspapers such as the New York Times, Los Angeles Times, Wall Street Journal, and Atlanta Journal-Constitution published articles on persistent reports of serious human rights violations at detention centers at Guantanamo and in Afghanistan, including deaths of detainees under suspicious circumstances in Afghanistan.
82. On March 10, 2003, Amnesty International sent a letter to President Bush, with a copy to Secretary Rumsfeld, calling upon the U.S. government to investigate allegations of torture and other abuse at the Bagram detention facility. The letter described specific cases of abuse.
83. Starting in May 2003, the International Committee of the Red Cross began sending reports detailing abuses of detainees in U.S. custody in Iraq to the U.S. Central Command in Qatar. The May 2003 report described 200 allegations of torture and other abuse of detainees by U.S. soldiers. The medical delegate of the International Committee of the Red Cross observed marks on the detainees’ bodies that corroborated the allegations of abuse.
84. General John Abizaid, the commander of the U.S. Central Command, confirmed that his office received the report in May 2003.

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85. U.S. Secretary of State Colin Powell confirmed that Secretary Rumsfeld knew of the various reports by the International Committee of the Red Cross, stating that he and Secretary Rumsfeld kept President Bush regularly apprised of their contents throughout 2003.
86. On May 15, 2003, Amnesty International publicized allegations of torture and other abuse of Iraqi detainees by U.S. and British forces, including beatings and electric shocks.
87. On June 23, 2003, Amnesty International sent a letter to Secretary Rumsfeld expressing concern about the death of an Afghan detainee held in U.S. custody.
88. In June 2003, Amnesty International wrote to Ambassador Paul Bremer, who was then the Administrator of the Coalition Provisional Authority governing Iraq, to express its concerns about the treatment of detainees in U.S. custody in Iraq. On information and belief, Bremer met on a frequent basis with Related-Action Defendant Sanchez, who was responsible for military support for Bremer and the Coalition Provisional Authority.
89. In early July 2003, the International Committee of the Red Cross sent U.S. military forces in Iraq a working paper detailing approximately 50 allegations of abuse and violence against detainees in Iraq. Among the abuses detailed in the report are the following: striking detainees with rifle butts, taking aim at detainees with rifles, slaps, punches, prolonged exposure to the sun, isolation in dark cells, and threats of indefinite detention or detention of family members.
90. On July 15, 2003, the late Sergio Vieira de Mello, then the U.N. High Commissioner for Human Rights, raised concerns regarding the treatment of detainees in U.S. custody with Ambassador Bremer.

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91. On information and belief, Ambassador Bremer met with Secretary Rumsfeld in August 2003 and repeatedly urged him to improve conditions in U.S.-controlled detention facilities in Iraq.
92. On July 23, 2003, Amnesty International released a second report criticizing the United States for mistreatment of detainees in Iraq. Allegations included the use of electric shocks, sleep deprivation, and stress positions. Major newspapers, including the New York Times, reported on Amnesty International’s allegations.
93. Secretary Rumsfeld personally visited Abu Ghraib prison on September 6, 2003. His visit to Abu Ghraib coincided with General Miller’s visit, and took place during the period in which abuses were taking place. Photographs depicting Secretary Rumsfeld at the prison and meeting with Related-Action Defendant Karpinski, were published in the New York Times. According to an official U.S. military investigation, during the time of Secretary Rumsfeld’s visit, military intelligence personnel at Abu Ghraib were requesting and encouraging military police personnel to abuse detainees in violation of established policies and laws.
94. Approximately one month after the visits of Secretary Rumsfeld and General Miller to Abu Ghraib, from October 9 through 12 and October 21 through 23, 2003, the International Committee of the Red Cross visited Abu Ghraib and determined that detainees in U.S. custody were being subjected to “physical and psychological coercion” which was in some cases “tantamount to torture.” The abuses witnessed by the International Committee of the Red Cross included: threats, sleep deprivation, tight handcuffs that caused lesions and wounds, and holding of detainees in total darkness in bare concrete cells, while completely naked. U.S. military personnel told representatives of the International Committee of the Red Cross that such treatment was “part of the process.” During this visit, the International Committee of the Red

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Cross found that detainees at Abu Ghraib had physical signs of injury and psychological symptoms such as suicidal tendencies, memory loss, and acute anxiety reactions.
95. The International Committee of the Red Cross conveyed its concerns to U.S. military commanders in Iraq through reports and briefings in October and November 2003. Defendant Pappas and Related-Action Defendants Sanchez and Karpinski were notified of the details of abuse by the Red Cross by November 2003. Defendant Pappas and General Karpinski received at least one written report of torture and other abuses from the International Committee of the Red Cross during that time period.
96. In response to the International Committee of the Red Cross’s oral and written reports of torture and other unlawful abuses in October and November 2003, Defendant Pappas revoked the International Committee of the Red Cross’s access to interrogation areas and denied the International Committee of the Red Cross’s requests to interview specified detainees. Related-Action Defendant Sanchez’s staff approved those denials of access. Defendant Pappas and Related-Action Defendants Karpinski and Sanchez did not do anything to stop the torture and other unlawful abuses.
97. Related-Action Defendant Karpinski responded to the International Committee of the Red Cross November 2003 report in a letter dated December 24, 2003. According to an official investigative report by Major General George Fay (the “Fay Report”), General Karpinski’s response “gloss[ed] over, close to the point of denying[,] the inhumane treatment, humiliation, and abuse identified by the [International Committee of the Red Cross].”
98. On November 12, 2003, the Lawyers Committee for Human Rights (now known as Human Rights First) wrote to the commander of U.S. forces in Afghanistan and transmitted a

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copy to Secretary Rumsfeld requesting information about the current status of military investigations into the deaths of three detainees who died in U.S. custody in Afghanistan.
99. On information and belief, on November 14, 2003, Amnesty International wrote a letter to Secretary Rumsfeld concerning reports of abuse of Iraqi detainees by the U.S. military.
100. In December 2003, Colonel Stuart Herrington of the U.S. Army submitted an investigative report (the “Herrington Report”) to Major General Barbara Fast, a high-level military intelligence commander in Iraq who reported directly to Related-Action Defendant Sanchez. Herrington reported details of abuses committed against detainees in Iraq by a joint task force of military Special Operations and Central Intelligence Agency officers, known as Task Force 121. Herrington reported that military medical personnel found the detainees showed signs of having been beaten. Herrington concluded in his December 2003 report: “It seems clear that TF 121 needs to be reined in with respect to its treatment of detainees.” Herrington further reported that TF 121 had detained the family members of suspects and refused to release the family members until the suspects turned themselves in – a practice Herrington described as “having a ‘hostage’ feel.” On information and belief, Related-Action Defendant Sanchez received the December 2003 Herrington report and forwarded it to his superior officers.
101. On January 13, 2004, a U.S. soldier stationed at Abu Ghraib gave Army criminal investigators a copy of a CD containing photographs depicting individuals under Defendant Pappas’ actual and effective command engaging in gross acts of torture or other cruel, inhuman or degrading treatment.
102. Related-Action Defendants Rumsfeld and Sanchez were notified of the photographs.

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103. On January 16, 2004, the U.S. Army released a five-sentence press release acknowledging allegations of detainee abuse in Iraq.
104. In February 2004, the International Committee of the Red Cross issued an exhaustive report of torture and abuse at U.S. detention facilities in Iraq. On information and belief, Secretary Rumsfeld knew of this report by mid-February 2004. During that time period, Secretary Rumsfeld informed President Bush that the Department of Defense was investigating allegations of detainee mistreatment in Iraq.
105. In late February or early March 2004, Army Major General Antonio Taguba provided an investigative report (the “Taguba Report”), detailing torture in Abu Ghraib, to Related-Action Defendant Sanchez. On information and belief, Related-Action Defendant Rumsfeld received the Taguba Report shortly after it was completed.
106. General John Abizaid, commander of the U.S. Central Command encompassing Iraq and Afghanistan, admitted in testimony before the Senate Armed Services Committee on May 19, 2004, that “we should have known. And we should have uncovered it and taken action before it [abuse of detainees] got to the point that it got to. I think there’s no doubt about that.”
107. According to an official investigative report by Army Lieutenant General Anthony Jones (the “Jones Report”), the following “indications and warnings” informed RelatedAction Defendant Sanchez’s command of detainee abuse at Abu Ghraib and other detention facilities in Iraq: “the investigation of an incident at Camp Cropper, [International Committee of the Red Cross] reports on handling of detainees in subordinate units, [International Committee of the Red Cross] reports on Abu Ghraib detainee conditions and treatment, [Army Criminal Investigations Command] investigations and disciplinary actions being taken by commanders, the death of an OGA detainee at Abu Ghraib, the lack of an adequate system for identification

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and accountability of detainees, and division commanders’ continual concerns that intelligence information was not returning to the tactical level once detainees were evacuated to the central holding facility.”
108. The report of an official investigation headed by former Secretary of Defense James Schlesinger (the “Schlesinger Report”) also states that Defendant Pappas and RelatedAction Defendant Karpinski “knew, or should have known, abuses were taking place and taken measures to prevent them.”
109. A military lawyer for an enlisted soldier charged with the abuse of detainees stated in court that his client told him that Related-Action Defendant Sanchez was personally present at Abu Ghraib during interrogations and may have witnessed abuse.
110. On information and belief, Defendant Pappas was frequently present at Abu Ghraib during relevant time periods, resided at the Abu Ghraib facility for some period of time, and was present in a cellblock at Abu Ghraib on the night that a detainee was killed during interrogation.
111. On information and belief, numerous additional reports and documents of the International Committee of the Red Cross and the U.S. military as well as other sources of information document the abuse and torture of detainees in U.S. military custody in Guantanamo, Afghanistan and Iraq. On information and belief, Defendant Pappas and the Related-Action Defendants have personal knowledge of the content of additional documents and reports documenting abuse and torture of detainees in Guantanamo, Afghanistan and Iraq.
112. As set forth above, Defendant Pappas and the Related-Action Defendants were well aware of the widespread torture and other cruel, inhuman or degrading treatment of detainees in U.S. custody as early as the time he took command of military intelligence forces in

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Iraq and throughout the period before the public disclosure in the spring of 2004 of specific abuses at Abu Ghraib. However, Defendant Pappas did not take steps to stop or prevent torture and other abuses at any point, and none of the Related-Action Defendants took such steps until after the public outcry regarding abuses at Abu Ghraib. It was only then that U.S. military officials made some public statements critical of the abuses and some measures were taken against a few individuals. These measures were not only too late in coming, but also inadequate, as set forth below.
3. Defendant’s Failures to Act upon Knowledge to End Torture and Abuse of Detainees
113. Defendant Pappas and the Related-Action Defendants did not take reasonable and necessary steps at any stage to ensure that no further abuses would occur. As a proximate result, Plaintiffs were tortured and subjected to other cruel, inhuman or degrading treatment while detained in U.S. military facilities.
114. The official report by U.S. Army Major General George Fay found that “inadequate interrogation doctrine and training, and acute shortage of MP [military police] and MI [military intelligence] [s]oldiers, the lack of clear lines of responsibility between the MP and MI chains of command, the lack of a clear interrogation policy for the Iraq Campaign, and intense pressure felt by the personnel on the ground to produce actionable intelligence from detainees” resulted in the abuse of detainees in Iraq.
115. As documented in numerous official U.S. government reports, from the outset of and throughout the military actions in Iraq, Defendant Pappas and Related-Action Defendants Rumsfeld, Sanchez and Karpinski knowingly failed to provide for adequate training of U.S. military personnel charged with the detention and interrogation of detainees. Despite receiving notice of the torture or other cruel, inhuman or degrading treatment that ensued, Defendant

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Pappas failed to take any steps to correct his initial failure to train subordinates in the proper treatment of detainees. Defendant Pappas knew and should have known that this lack of adequate training, combined with his other policies and practices, would lead to the further torture or other cruel, inhuman or degrading treatment of detainees in U.S. custody.
116. Defendant Pappas and Related-Action Defendants Rumsfeld, Sanchez and Karpinski each continued to put untrained personnel in charge of detainees, after receiving notice that these untrained personnel were torturing and otherwise abusing detainees. The Taguba Report found that “there is no evidence that the command, although aware of these deficiencies [in training], attempted to correct them in any systemic manner other than ad hoc training by individuals with civilian corrections experience.” In particular, the Schlesinger Report blamed Defendant Pappas and Related-Action Defendant Karpinski for the abuses at Abu Ghraib, and specifically cites Defendant Pappas’ failure “to ensure that his subordinates were properly trained and supervised” as contributing to the abuses at Abu Ghraib.
117. Defendant Pappas and the Related-Action Defendants also failed to take sufficient and meaningful measures to discipline subordinates who committed torture or other cruel, inhuman or degrading treatment against detainees. Rather than taking timely and effective actions, Defendant Pappas and the Related-Action Defendants indeed expanded or maintained the authority of these subordinates to use harsh measures against detainees, even though they knew and should have known that these subordinates previously had allowed, authorized or committed torture or abuse.
118. Superior officers and commanders, including Related-Action Defendant Sanchez, failed to discipline Captain Wood in connection with the two murders committed in Afghanistan by personnel under her command in the 519th Military Intelligence Battalion. Instead, within

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weeks of the murders, Wood was awarded the first of two Bronze Star medals for “exceptionally meritorious service.”
119. Also, in lieu of discipline, Wood and her subordinates were assigned to interrogation duty in Iraq, including Abu Ghraib, where predictably they continued to torture and otherwise abuse detainees. During relevant time periods, Captain Wood and other members of the 519th Military Intelligence Battalion were under Defendant Pappas’ command. On information and belief, none of the members of the 519th Military Intelligence Battalion were disciplined prior to the battalion’s redeployment to Iraq. Wood’s reassignment, along with “word of mouth,” meant that the same techniques used on detainees in Afghanistan were put into effect in Iraq. The list of interrogation techniques Wood proposed to Related-Action Defendant Sanchez, which his staff approved, were “a near copy of” techniques used by her unit in Afghanistan.
120. Upon information and belief, no charges were brought against any members of the 519th Military Intelligence Battalion who were involved in the homicides at the Bagram detention facility until August 2004, when one Army sergeant was charged in connection with the torture and murder of the two Afghan detainees.
121. The refusal of Related-Action Defendants Rumsfeld and Sanchez and others to take timely action against U.S. military personnel responsible for the deaths of the two Afghan detainees resulted in further torture and other abuse. A third Afghan detainee was tortured to death in March 2003, several months after the first two died in U.S. custody.
122. In May 2003, soldiers commanded by Colonel Jerry Phillabaum, an officer under the command of Related-Action Defendants Sanchez and Karpinski, tortured detainees at the Camp Bucca facility. General Karpinski was aware of the conduct of Phillabaum’s soldiers.

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Neither she nor General Sanchez punished Phillabaum. Instead, they placed Colonel Phillabaum in command of the Abu Ghraib prison, where soldiers under his command again tortured and otherwise abused detainees.
123. The soldiers in Phillabaum’s command who tortured and abused detainees at Camp Bucca in May 2003 were given extremely light sanctions. The most severe was a “lessthan-honorable discharge.” As Related-Action Defendant Karpinski admitted, the inconsequential sanctions “communicated to the soldiers, the worst that’s gonna happen is, you’re gonna go home.”
124. By at least November 2003, Related-Action Defendant Sanchez knew and should have known that soldiers under the command of Related-Action Defendant Karpinski and Colonel Phillabaum again had tortured detainees, this time at Abu Ghraib. The Taguba Report described Phillabaum’s battalion as “the most troubled battalion guarding, by far, the largest number of detainees in the 800th MP [military police] Brigade.” However, General Sanchez took no action against General Karpinski and Phillabaum until he suspended Phillabaum’s command on January 17, 2004, about eight months after receiving notice of torture committed by Phillabaum’s soldiers. General Sanchez issued a formal admonishment to General Karpinski on January 17, 2004, but left her in command of all detainee operations in Iraq until the torture and other abuses at Abu Ghraib were publicly exposed in the media in May 2004.
125. Documents produced by the Department of Defense in litigation under the Freedom of Information Act, see American Civil Liberties Union Foundation, et al. v. Dep’t of Defense, et al., No. 04-cv-4151 (AKH) (S.D.N.Y. 2004), demonstrate that Defendant Pappas and Related-Action Defendants Rumsfeld, Sanchez and Karpinski failed to investigate detainee deaths adequately and failed to punish soldiers responsible for deaths. For example, on

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September 11, 2003, a U.S. soldier shot and killed an Iraqi detainee under suspicious circumstances. The Army Criminal Investigations Command did not receive a report on the shooting until September 15, 2003. During the intervening time, the crime scene was significantly altered, the weapon and bullet had not been collected, and no autopsy was conducted. Although the Army Criminal Investigations Command determined that probable cause existed for a murder charge, it was too late. The Army held a hearing under Article 32 of the Uniform Code of Military Justice to determine whether there was cause to charge the soldier with voluntary manslaughter. The result was a decision not to prosecute. The soldier had received a reduction in rank and was discharged from the Army before the Criminal Investigations Command’s investigation was concluded.
126. The documents obtained through the Freedom of Information Act further reveal that in November 2003, the Army Criminal Investigations Command at Fort Stewart, Georgia, received a U.S. soldier’s sworn statement that he had observed “war crimes” by U.S. military personnel against detainees in Iraq and that his “chain of command did nothing to stop these war crimes and allowed them to happen.” Among other things, the soldier stated that detainees were forced to stay outdoors in extremely hot weather for up to 12 hours, with their hands bound so tightly behind their backs that their hands turned purple. The soldier also stated that U.S. military personnel drove a Bradley fighting vehicle toward detainees in order to “spook” them. The Criminal Investigations Command closed its investigation on the purported ground that “a thorough investigation failed to produce any logical subjects and there is no serious injury, and ... furtherance of the investigation would be of little or no value or leads remaining to be developed are not significant.”

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127. Related-Action Defendants Sanchez and Rumsfeld have also failed and continue to fail in their duty to investigate the responsibility of high-level commanders and civilian officials for the torture or other cruel, inhuman or degrading treatment of detainees. Although Related-Action Defendants Rumsfeld and Sanchez ordered investigations into the torture of prisoners, they knowingly limited those investigations in a manner that precluded finding wrongdoing by or assigning responsibility to high-ranking civilian or military commanders or officials, including themselves.
128. Despite having notice of torture or other cruel, inhuman or degrading treatment at multiple detention facilities throughout Iraq, Related-Action Defendants Rumsfeld and Sanchez ordered Generals Fay and Taguba to investigate torture only in relation to Abu Ghraib and only in relation to certain brigades and for certain time periods. Secretary Rumsfeld and General Sanchez thus intentionally and knowingly avoided a meaningful and thorough inquiry into the knowledge and conduct of higher-level officials, as well as an investigation into the widespread nature of torture in Iraq.
129. Official reports by Army investigators Generals Taguba, Jones and Fay concluded that Defendant Pappas and Related-Action Defendant Karpinski, among others, were responsible for the abuses at Abu Ghraib through their failures of leadership. However, Related-Action Defendants Rumsfeld and Sanchez have refused to bring charges against anyone other than soldiers who personally tortured or otherwise abused detainees, despite having information that those soldiers acted at the direction of superior officers.
130. Although the U.S. military has taken some steps to punish personnel who committed homicide, torture or other cruel, inhuman or degrading treatment, those steps began

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primarily after media attention to the Abu Ghraib scandal in May 2004, which was far too late to prevent the torture or other cruel, inhuman or degrading treatment inflicted on Plaintiffs.
131. In March 2004, approximately two months after military commanders in Iraq came into possession of photographs of torture at Abu Ghraib but before those photographs became public, a detainee in U.S. custody in Mosul, Iraq, stated that he had been tortured by U.S. personnel. According to government documents produced in litigation under the Freedom of Information Act, the detainee stated that U.S. personnel bent his thumb backwards, kicked him, hit him in the neck with the butt of a gun, deprived him of sleep, slammed his head against a wall, and repeatedly burned him with hot liquids and a lamp. A U.S. Army noncommissioned officer stated that he believed Navy SEALs might have physically abused the detainee and a U.S. military medical screening record reflected that the detainee had second-degree burns and singed tissue on his body. The Criminal Investigations Command nonetheless concluded that there was insufficient evidence to prove or disprove the detainee’s statements, and it ended its investigation.
132. Other belated steps have been inadequate to stop the abuse of detainees, as demonstrated by the continued torture or other cruel, inhuman or degrading treatment of detainees disclosed in documents produced pursuant to litigation under the Freedom of Information Act.
133. For example, the Freedom of Information Act documents reveal that prior to June 25, 2004, officers of the Defense Intelligence Agency witnessed members of a U.S. military unit known as Task Force 626 punching a detainee in the face “to the point that the individual needed medical attention.” The Defense Intelligence Agency officers also observed that detainees arriving at a temporary detention facility in Baghdad had bruises and burn marks on their backs.

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When task force members learned that a Defense Intelligence Agency officer had photographed some detainees’ injuries, the task force members confiscated the photographs and threatened the officer. Task force members also seized the Defense Intelligence Agency officers’ vehicle keys and ordered them not to leave the U.S. military compound. On information and belief, RelatedAction Defendant Rumsfeld was aware of the activities of Task Force 626 because he had established and directed activities of an intelligence-gathering unit that worked closely with Task Force 626.
134. The Freedom of Information Act documents further reveal that on or about May 11, 2004, a Defense Intelligence Agency officer witnessed detainees in Baghdad, Iraq, being abused by U.S. military personnel during an interrogation. The officer witnessed four or five non-interrogator military personnel enter the interrogation room and begin slapping the detainee as he was attempting to answer questions.
C. Consequences of Defendant’s Conduct 1. Defendant’s Policies, Patterns or Practices Resulted in Widespread Torture and Abuse of Detainees in Iraq
135. As set forth above, the policy, pattern or practice of torture and other cruel, inhuman and degrading treatment of detainees in U.S. custody in Iraq had its genesis in the interrogation and detention procedures used by U.S. forces in Afghanistan.
136. On information and belief, the U.S. military has detained and continues to detain individuals at approximately 22 locations in Afghanistan, including facilities in Asadabad, Kabul, Jalalabad, and Khost under the control of the U.S. military and has lasted well beyond the declared end of major combat.

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137. As a result of Related-Action Defendant Rumsfeld’s policies, patterns or practices, the torture and abuse of detainees in U.S. military custody in Afghanistan has been widespread and systemic. It began soon after the commencement of military actions.
138. In December 2001, John Walker Lindh, a U.S. citizen, was arrested and detained by the U.S military in Afghanistan. Photographs taken at the time of his arrest show him emaciated, stripped naked, and bound to a stretcher.
139. In January 2002, U.S. soldiers detained a number of Afghan men for more than two weeks following a nighttime raid on a village, during which time the detainees were beaten and kicked. Upon their release, a spokesman for the U.S. Defense Department admitted that the detainees had not been part of the Taliban or Al Qaeda.
140. As widely documented in press reports, U.S. military personnel have subjected detainees in U.S. custody in Afghanistan to the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. Extreme physical abuse: Soldiers severely beat detainees, forced them into painful and contorted positions for hours or days on end, and dumped cold water over detainees in the middle of the winter. Beatings were for the specific purpose of making detainees more susceptible to interrogation.
b. Sexual abuse and humiliation: Detainees were kept naked for prolonged periods in the presence of male and female soldiers and in front of other detainees. Soldiers, both male and female, subjected detainees to sexual taunts, with knowledge that such treatment would be particularly offensive and humiliating by Afghan cultural norms.
c. Use of dogs to frighten and intimidate detainees.

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d. Sensory deprivation: Detainees were kept hooded or goggled, held in dark cells, and kept in isolation for prolonged periods.
e. Sleep deprivation: Detainees were forced to stay awake for prolonged periods by methods such as shining bright lights, blaring loud music, shouting at them or beating them if they fell asleep.
141. Detainees have been killed by torture or other cruel, inhuman or degrading treatment while in U.S. custody in Afghanistan. For example:
a. According to documents produced by the Defense Department pursuant to litigation under the Freedom of Information Act, the Army Criminal Investigation Command concluded in September 2002 that a U.S. Army captain and three noncommissioned officers murdered a detainee in Afghanistan.
b. Two other Afghan detainees, Mullah Habibullah and Dilawar, died in December 2002 at the Bagram detention facility in Afghanistan while in the custody of the U.S. military. During interrogation by members of the U.S. Army’s 519th Military Intelligence Battalion, the detainees were shackled to the ceiling with their hands suspended over their shoulders for prolonged periods. Both had suffered blunt force trauma to the legs, and investigators determined that they had been beaten by multiple soldiers. Military pathologists determined within days of the deaths that the cause was homicide. Nevertheless, for months afterwards, and until the New York Times obtained a copy of Dilawar’s autopsy report, the military falsely asserted that the men had died of natural causes.

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c. Another detainee, Jamal Naseer, died at a U.S. firebase in Gardez after being tortured and abused while in U.S. custody. Naseer and seven other members of the Afghan Army were arrested in March 2003; they were detained by U.S. forces and interrogated at Gardez for 17 days. The detainees were beaten regularly by U.S. interrogators, some reportedly while shackled or while suspended upside down. Some were subjected to electric shocks and immersion in cold water. They were denied medical treatment for the injuries they received.
142. On information and belief, multiple other detainees have died while in U.S. military custody in Afghanistan under circumstances suggesting the cause of death was homicide.
143. The U.S. Army Criminal Investigations Command determined that members of the 377th Military Police Battalion and military intelligence officers based in Fort Bragg, North Carolina (apparently referring to the 519th Military Intelligence Battalion) committed abuses against detainees in Afghanistan, including the following: slamming detainees into walls, twisting handcuffs to cause pain, kneeing detainees, forcing a detainee to maintain painful, contorted positions, shackling a detainee’s arms to the ceiling, and forcing water into the mouth of a detainee until he could not breathe.
144. On information and belief, the U.S. military has detained and continues to detain individuals at numerous detention facilities in Iraq under the control of the U.S. military. The policies, patterns or practices of torture and abuse of detainees that commenced in Afghanistan were extended and used against detainees in Iraq as a result of the actions and derelictions of Defendant Pappas and the Related-Action Defendants.

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145. The U.S. government, the International Committee of the Red Cross, and nongovernmental human rights organizations have documented hundreds of cases of abuse committed at U.S. detention facilities in Iraq.
146. These reports demonstrate that detainees in facilities under the exclusive control of the U.S. military have been subjected to torture or other cruel, inhuman or degrading treatment on a widespread basis in Iraq. U.S. personnel have engaged in this unlawful conduct at facilities including but not limited to the notorious Abu Ghraib prison; the detention facility known as “Camp Cropper” at the Baghdad international airport; a facility near the city of Umm Qasr known as Camp Bucca; facilities in or near the cities of Tikrit and Mosul; and numerous locations in or near the city of Baghdad.
147. According to reports by the U.S. military, the International Committee of the Red Cross, and other non-governmental human rights organizations, and as revealed in voluminous documents produced by the government pursuant to litigation under the Freedom of Information Act, U.S. personnel inflicted the following types of torture or other cruel, inhuman or degrading treatment, among others, on detainees at numerous U.S. facilities in Iraq:
a. Extreme physical abuse: Soldiers tore out detainees’ toenails, administered electric shocks, beat detainees with hard objects (including pistols and rifles), slapped and punched detainees, kicked them with knees or feet on various parts of the body (legs, sides, lower back, groin), forcefully pressed detainees’ faces into the ground by stepping on their heads, purposely exposed detainees to severe heat and sun for prolonged periods, and forced detainees to stay in “stress” positions (kneeling, squatting, standing with arms raised over their heads) for hours at a time.

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b. Various forms of sexual abuse and humiliation: Detainees were stripped naked and forced to stand for prolonged periods in public view, with arms raised or with women’s underwear over their heads, while male and female guards observed and laughed. Detainees were photographed in these positions. Detainees were paraded naked in front of other detainees. Detainees were kept naked in solitary confinement for periods of several days.
c. Threats of death, abuse, reprisals against family members, imminent execution or transfer to the military detention facility at Guantanamo: Soldiers aimed rifles at detainees, sometimes putting firearms directly against detainees’ heads or torsos.
d. Sensory deprivation: Hooding detainees to prevent them from seeing, to disorient them, and to prevent them from breathing freely. Hooding was sometimes used in conjunction with beatings, thus increasing fear because blows were unanticipated. The practice of hooding also allowed the interrogators to remain anonymous and thus to act with impunity. Detainees were also held in total darkness for prolonged periods.
e. Painful and humiliating restraints: Soldiers applied flexi-cuffs to detainees’ wrists so tightly and for such extended periods that they caused skin lesions and long-term nerve damage. Soldiers restrained detainees repeatedly over periods of several days, for several hours each time, with handcuffs to the bars of their cell doors in humiliating (i.e. naked or in underwear) and/or uncomfortable positions causing physical pain.

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148. Official U.S. military reports have documented the notorious abuses at Abu Ghraib prison, among other detention facilities. These reports determined that soldiers inflicted the following torture or other cruel, inhuman or degrading treatment on detainees at Abu Ghraib:
a. Homicide: A Navy SEAL beat a detainee to death. He struck the detainee in the head with a rifle butt. After the detainee lost consciousness, he was placed in a shower room with a sandbag over his head, and, when guards returned 3045 minutes later, he was dead.
b. Extreme physical abuse: Soldiers punched, kicked and slapped detainees. A soldier knocked a detainee unconscious, and another punched a second detainee in the chest so hard that he could not breathe. Soldiers beat detainees with a broom handle and a chair. Soldiers broke chemical lights and poured the contents on detainees. A soldier slammed a detainee against a wall so hard that he required stitches, and then an ordinary military police guard was permitted to stitch the wound. A detainee was forced to “bark like a dog” and crawl on his stomach while military police personnel spit and urinated on him and beat him until he lost consciousness.
c. Sexual abuse and humiliation: Soldiers threatened to rape detainees. An interpreter allegedly raped a juvenile male detainee while a female U.S. soldier watched and took pictures. Soldiers forced a naked detainee to stand on a box with a sandbag on his head, and attached wires to his fingers, toes and penis to simulate electric torture. Soldiers stripped detainees naked and kept them naked for prolonged periods. Soldiers photographed and videotaped naked detainees, sometimes while forcibly posed in sexual

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positions, forcibly dressed in women’s underwear, or forced to masturbate. Soldiers arranged naked detainees in a pile and then jumped on them. Soldiers placed a dog leash around a naked male detainee’s neck, posed a female soldier next to him and photographed him. d. Use of military dogs to intimidate and attack detainees: In at least one case, soldiers caused a dog to bite and severely injure a detainee. Some soldiers referred to the use of dogs to frighten or attack detainees as “doggy dance” sessions. On one occasion, soldiers placed vicious dogs into a cell with two juvenile detainees. Witnesses reported that the children screamed in terror as the dogs lunged and snapped at them, and that the younger child tried to hide behind the older one. On another occasion, two military dog handlers held a “contest” in which they competed against each other to see who could force detainees to lose control of their bladders or bowels out of fear. e. Sensory deprivation: Soldiers kept detainees in solitary confinement, sometimes in empty concrete cells in total darkness. 149. In reports presented to U.S. government officials and military commanders, the International Committee of the Red Cross documented hundreds of additional individual allegations of abuse committed at U.S. military detention facilities throughout Iraq. Fifty incidents of torture and other abuse were reported as occurring at the Camp Cropper detention facility alone. Among the “illustrative” cases of torture reported by the International Committee of the Red Cross are the following:

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a. At least two detainees were forced to sit or lie down on blistering surfaces,

causing severe burns that resulted in large crusted lesions and, in one case,

three months’ hospitalization, the amputation of a finger and large skin grafts.

b. Military interrogators hooded and restrained a detainee with flexi-cuffs,

threatened to torture and kill him, urinated on him, kicked him in the head,

lower back and groin, force-fed him a baseball which was tied into his mouth,

and deprived him of sleep for four consecutive days. When the detainee said

he would report the abuse to the International Committee of the Red Cross,

interrogators beat him again.

2. Plaintiffs Injured in Iraq By Defendant’s Actions and Derelictions 150. Plaintiffs Arkan M. Ali, Sabbar, Khalid and Ali H. are among the countless

detainees who were tortured and otherwise abused at U.S. military facilities in Iraq as a result of

the Defendant’s policy, pattern or practice of torture or other cruel, inhuman or degrading

treatment. The Plaintiffs are and were non-combatant innocent civilians who pose no threat to

the United States, were not engaged in hostilities against the United States, were not prosecuted

for criminal violations and were released from custody by the U.S. military after being brutally

abused and tortured.

a. Arkan M. Ali 151. Plaintiff Arkan M. Ali was detained by U.S. military forces in Iraq for

approximately 11 months, from approximately July 2003 to June 2004. Plaintiff Arkan M. Ali

was detained at various locations in Iraq, including a civil defense station in Baghdad, a military

prison at the Baghdad international airport, Camp Bucca, and the Abu Ghraib prison.

152. For the purpose of causing severe pain and injuring, interrogating, intimidating,

degrading and abusing him while he was in U.S. military custody, care and control, U.S. military

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forces, including Defendant Pappas’ subordinates, subjected Plaintiff Arkan M. Ali to the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. Subjecting Plaintiff Arkan M. Ali to severe beatings by groups of military personnel throughout his eleven months in U.S. custody, including twice beating him to unconsciousness during interrogation, using hands, feet, chains and weapons;
b. Forcibly restraining Plaintiff Arkan M. Ali and using a large knife to repeatedly stab and slice his forearm causing extreme pain, bleeding and scarring;
c. Burning or shocking Plaintiff Arkan M. Ali’s forearm with a small metal device;
d. Subjecting Plaintiff Arkan M. Ali to prolonged sensory and sleep deprivation; e. Repeatedly locking Plaintiff Arkan M. Ali for several days in a wooden
coffin-like box, sometimes after stripping him naked and tying a hood over his head; f. Urinating on Plaintiff Arkan M. Ali intentionally to humiliate and degrade him; g. Detaining Plaintiff Arkan M. Ali in a “silent tent” for days at a time, during which he was denied sleep and dragged face-down along the ground and severely beaten by soldiers whenever it appeared he might be falling asleep; h. Subjecting Plaintiff Arkan M. Ali to multiple death threats, including but not limited to the following: threats to transfer him to Guantanamo where he was told soldiers could kill detainees with impunity; mock executions by

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threatening to run Plaintiff Arkan M. Ali and other detainees down with a large military vehicle; brandishing guns and threatening to shoot Plaintiff Arkan M. Ali and other detainees; approaching Plaintiff Arkan M. Ali with a sword and threatening to slaughter him; i. Falsely telling Plaintiff Arkan M. Ali and other detainees during transport between prisons that they were being taken to another country, in order to terrorize and disorient them and to lead them to believe that they would never see their families again; j. Denying Plaintiff Arkan M. Ali food and water for long periods, intentionally causing extreme hunger and thirst; and k. Repeatedly desecrating the Quran in the presence of Plaintiff Arkan M. Ali and other detainees to demean and degrade them, including having a military dog pick up the Quran in its mouth. 153. Upon Plaintiff Arkan M. Ali’s release from U.S. custody, a U.S. official threatened him by specifically telling him that if he ever reported or discussed the abuse he and others suffered in detention, the U.S. government would find him and he would never see his family again. Plaintiff Arkan M. Ali understood the official to mean that such future detention would be retaliatory and would include further torture or other cruel, inhuman or degrading treatment or even death. 154. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Arkan M. Ali suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he suffers from pain in the kidneys, colon and urinary tract. He also bears severe scars on his arm from the stabbing

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and burning he suffered. He has severe depression, frequent severe nightmares, and episodes of

shortness of breath and an involuntary gulping reflex, which he never experienced prior to his

detention. As a result of his continuing injuries, Plaintiff Arkan M. Ali has been unable to

maintain employment and his personal relationships with his family and other have deteriorated.

b. Thahe M. Sabbar

155. Plaintiff Thahe M. Sabbar was detained by U.S. military forces in Iraq from

approximately July 2003 to January 2004. Plaintiff Sabbar was detained at various locations in

Iraq, including locations in Baghdad known as al-Qasr al-Jumhouri and al-Qasr al-Sujood, the

prison at the Baghdad international airport, Camp Bucca, and Abu Ghraib.

156. For the purpose of causing severe pain and injuring, interrogating, intimidating,

degrading and abusing him while he was in U.S. military custody, care and control, U.S. military

forces, including Defendant Pappas’ subordinates, subjected Plaintiff Sabbar with the following

forms of torture or other cruel, inhuman or degrading treatment, among others:

a. Frequent severe beatings, including beating Plaintiff Sabbar with their fists

and guns while he was handcuffed and helpless, hitting him in the genitals,

and forcing him and other detainees to run through a gauntlet of 10 to 20

uniformed soldiers who were screaming at them and beating them with

wooden batons;

b. Twice using a gun-shaped device to inflict excruciating electrical shocks on

Plaintiff Sabbar;

c. Sexually assaulting Plaintiff Sabbar: One or more soldiers in the presence of

male and female soldiers inserted their fingers into Plaintiff Sabbar’s anus and

grabbed and fondled his buttocks and penis while making moaning sounds

and jeering at him in a sexually degrading and intimidating manner;

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d. Staging extraordinary mock executions of Plaintiff Sabbar and other detainees to terrorize, humiliate and degrade them and to extract false confessions, including: forcing Plaintiff Sabbar and other detainees to stand against a wall and staging a mock firing squad with simulated gunfire, laughing as detainees lost control of their bladders in their terror; and threatening to send Plaintiff Sabbar to Guantanamo and informing him that he would be killed there;
e. Using extreme restraints, hooding him and applying handcuffs so tightly that Plaintiff Sabbar suffered extreme pain and experienced numbness in his hands and wrists;
f. Shackling Plaintiff Sabbar’s hands to a fence behind his back, subjecting him to that position for several hours at temperatures exceeding 120 degrees Fahrenheit (50 degrees Celsius) while denying him any water or food, and other prolonged periods of exposure to extremely hot conditions and denial of water, to the point that he lost consciousness on several occasions;
g. Intentionally causing humiliation and extreme hunger by depriving Plaintiff Sabbar of food and water for extended periods of time, or by providing him with food containing pork or foul-smelling and spoiled food which caused detainees to vomit when they tried to eat it;
h. Intentionally humiliating Plaintiff Sabbar by denying him the use of toilet facilities for extended periods while he was shackled thereby causing him to soil his pants; and

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i. Desecrating the Quran in the presence of Plaintiff Sabbar and other detainees

to demean and degrade then, including throwing the book to the floor and

stepping on it.

157. After his release from U.S. custody, Plaintiff Sabbar returned to Abu Ghraib to

seek return of property confiscated from them by U.S. forces and to inquire about a business

partner who remained in custody. Plaintiffs Sabbar and Khalid were detained in a locked room

by military personnel and were then released without receiving any response to their inquiries.

As a result of this experience, Plaintiff Sabbar fears that U.S. forces will detain him again if he

pursues remedies for his injuries and losses from U.S. military officials in Iraq.

158. As a result of torture or other cruel, inhuman or degrading treatment while in U.S.

custody, Plaintiff Sabbar suffered severe physical and psychological injuries. He continues to

suffer the lasting effects of those injuries. Among other things, Plaintiff Sabbar continues to

suffer from nerve damage and pain in his shoulder, severe nightmares, incontinence, impotence,

and uncontrollable bouts of shaking and crying as a direct result of the torture and abuse he

experienced.

c. Sherzad K. Khalid

159. Plaintiff Sherzad K. Khalid was detained by U.S. military forces in Iraq from

approximately July to September 2003. Plaintiff Khalid was detained at various locations in

Iraq, including locations in Baghdad known as al-Qasr al-Jumhouri and al-Qasr al-Sujood, a

prison at the Baghdad international airport, and Camp Bucca.

160. For the purpose of causing severe pain and injuring, interrogating, intimidating,

degrading and abusing him while he was in U.S. military custody, care and control, U.S. military

forces, including Defendant Pappas’ subordinates, subjected Plaintiff Khalid to the following

forms of torture or other cruel, inhuman or degrading treatment, among others:

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a. Kicking and punching Plaintiff Khalid over a period of hours while he was shackled and hooded and seated on the ground, terrorizing and injuring him with random and unanticipated blows;
b. Forcing Plaintiff Khalid and other detainees to run a gauntlet of approximately 10 to 20 uniformed U.S. soldiers who beat them with batons; grabbing Plaintiff Khalid by the head, shoving him to the ground, and stepping on his head; interrogating Plaintiff Khalid on numerous occasions and beating him severely before each interrogation; and routinely beating Plaintiff Khalid throughout his period of detention, such that his body was covered with deep bruises at the time of his release;
c. Sexually assaulting and humiliating Plaintiff Khalid by grabbing his buttocks and simulating anal rape by pressing a water bottle against the seat of his pants; putting a hand inside Plaintiff Khalid’s pants and grabbing his buttocks during a severe beating, punching him in the mouth breaking one of his teeth when he protested, and then brandishing a long wooden pole and threatening to sodomize him on the spot and every night of his detention;
d. Using extreme restraints, applying tight hoods that restricted Plaintiff Khalid’s breathing and vision, and handcuffing him so tightly that he suffered severe and long-lasting pain, in order to cause pain and fear;
e. Shackling Plaintiff Khalid’s hands to a fence behind his back, subjecting him to that painful position for several hours at temperatures exceeding 120 degrees Fahrenheit (50 degrees Celsius) while denying him any water or food,

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in order to cause extreme thirst, pain, and humiliation, and other prolonged periods of exposure to extremely hot conditions; f. Subjecting Plaintiff Khalid to prolonged sleep deprivation in a so-called “silent tent” for several days and severely beating him whenever he started to fall asleep; g. Subjecting Plaintiff Khalid to extraordinary mock executions and death threats to coerce false confessions, including placing a gun to Plaintiff Khalid’s head and demanding a confession and placing him in a mock firing squad with simulated gunfire; h. Intentionally causing Plaintiff Khalid severe hunger and humiliation by denying him food and water for extended periods, or providing him with food containing pork or foul-smelling, spoiled food that caused detainees to vomit when they tried to eat it; i. Intentionally humiliating Plaintiff Khalid by denying him the use of toilet facilities for extended periods while he was shackled thereby causing him to soil his pants; j. Deliberately depriving Plaintiff Khalid of adequate medical attention and acting with deliberate indifference to his medical needs, including refusing to provide adequate treatment for severe abdominal pains, which were diagnosed after his release as caused by a serious stomach infection. 161. After his release from U.S. custody, Plaintiff Khalid accompanied Plaintiff Sabbar to Abu Ghraib to seek return of property confiscated by U.S. forces and to inquire about a mutual business partner who remained in custody. Both Plaintiff Sabbar and Plaintiff Khalid were

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detained in a locked room by military personnel and were then released without receiving any response to their inquiries. As a result of this experience, Plaintiff Khalid fears that U.S. forces will detain him again if he pursues remedies for his injuries and losses from U.S. military officials in Iraq.
162. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Khalid suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. As a result of the untreated stomach infection he suffered in detention, he now has ulcers of the stomach and is required to take medication. Since his detention, he has continued to suffer from increased and high blood pressure and severe back pain. In addition, he suffers from severe depression and nightmares that have caused serious difficulties in his work and family relationships.
d. Ali H. 163. Plaintiff Ali H. was detained by U.S. military forces in Iraq from approximately August to September 2003, when he was 17 years old. Plaintiff Ali H. was detained at various locations in Iraq, including a former Baghdad police station, a facility in or near the city of AlTasfeerat, the Baghdad airport prison, Abu Ghraib, and facilities near the cities of Yusufiya and Mosul and in the Jarf al-Sakhr desert. 164. For the purpose of causing severe pain and injuring, interrogating, intimidating, degrading and abusing him while he was in U.S. military custody, care and control, U.S. military forces, including Defendant Pappas’ subordinates, subjected Plaintiff Ali H. to the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. At the time of arrest, shooting Plaintiff Ali H., hitting him with a gun, throwing him to the ground, and stepping on his head even though he was

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innocent of any wrongdoing, bleeding profusely from two gunshot wounds, and posed no threat to the arresting soldiers; b. Refusing to provide medical care for gunshot wounds inflicted by U.S. forces for several hours and then removing bullets from Plaintiff Ali H.’s neck and back without anesthetic, intentionally causing excruciating pain; c. Refusing to provide Plaintiff Ali H. with food, water, and pain medication for one-and-a-half days, despite his gunshot wounds, in order to cause pain, hunger, thirst, and humiliation; d. Refusing to provide Plaintiff Ali H. with adequate medical care and pain medication when he received a life-threatening shrapnel wound during a mortar attack, while he was housed in an outdoor tent at Abu Ghraib. U.S. military personnel intentionally inflicted pain and torture on Plaintiff Ali H. while he was recovering from abdominal surgery by: roughly dragging him from one location to another after surgery, in a way calculated to cause severe pain; keeping him shackled hand and foot to a bed with a blanket placed over his face; transferring him to a prison where he was forced to sleep on the ground outdoors in extremely hot weather without any shelter, despite being in excruciating pain and having an intravenous tube in his arm; and refusing to change the bandages on his surgical wounds and humiliating him when he requested medical assistance, thereby causing his surgical wound to become infected and leak pus, and inflicting further extreme pain and humiliation by roughly ripping away the bandage and then intentionally leaving the wound half-exposed in order to humiliate and injure him; and

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e. Intentionally releasing Plaintiff Ali H. in a manner intended to terrorize and

degrade him by first informing him that he would be released, then telling him

he would be sent to another prison, and then cutting off his identification

bracelet, confiscating his release papers and physically throwing him from a

bus to the ground outside while he still had an intravenous tube in his arm, in

a manner calculated to prevent him from seeking relief for the injuries he

suffered while in custody.

165. As a result of torture or other cruel, inhuman or degrading treatment while in U.S.

custody, Plaintiff Ali H. suffered severe physical and psychological injuries. He continues to

suffer the lasting effects of those injuries. Among other things, he suffers severe abdominal pain,

particularly in cold weather and while lifting objects. His physician has advised him not to lift

objects weighing over two pounds and has further advised that his condition may worsen over

time. Plaintiff Ali H. has frequent nightmares relating to the abuse he suffered and witnessed in

detention, and awakens his parents during the night when he screams and cries in his sleep. In

addition, he is often forced to leave school because of debilitating fatigue, severe depression and

abdominal pains.

D. Additional Allegations

166. Defendant Pappas has neither denied nor refuted the widespread torture or other

cruel, inhuman or degrading treatment of detainees in Iraq under the effective control and

exclusive care and custody of U.S. military forces under his command.

167. Defendant Pappas was at relevant times the military commander of U.S. Army

military intelligence and military police personnel in Iraq. He at relevant times had authority and

control over the detention and interrogation facilities in Iraq at which Plaintiffs were tortured.

He had effective control over personnel within those detention facilities who carried out,

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authorized or allowed the widespread and systematic torture or other cruel, inhuman or degrading treatment of detainees. Defendant Pappas also had effective and actual policymaking authority over the detention and interrogation of detainees in U.S. military custody.
168. The Plaintiffs were detained under the complete and exclusive jurisdiction and control of military police, military intelligence or other individuals or agents under the direction and control of the U.S. military.
169. Defendant Pappas’ actions and omissions were the proximate cause of the torture or other cruel, inhuman or degrading treatment of Plaintiffs and other detainees in U.S. military custody in Iraq and are the proximate cause of injuries suffered by Plaintiffs. In that conduct, Defendant Pappas acted under color of law beyond the scope of his lawful and delegated authority.
170. Defendant Pappas acted under color of law in formulating, authorizing, ratifying, implementing, and failing to prevent a policy, pattern or practice causing detainees in U.S. military facilities under the exclusive custody and control of the United States to be tortured and subjected to other cruel, inhuman or degrading treatment. Defendant Pappas knew and should have known that subordinate personnel in U.S. military facilities were engaging in such unlawful conduct on a widespread basis, yet he failed to ensure that those subordinate personnel acted lawfully. As a result, Plaintiffs and other prisoners in U.S. military custody in Iraq have been tortured or subjected to other cruel, inhuman or degrading treatment. Thus, by his acts, omissions and derelictions, Defendant Pappas is liable for the injuries that Plaintiffs suffered as victims of the widespread policy, pattern or practice of torture or other cruel, inhuman or degrading treatment in violation of law.

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171. At the time the Plaintiffs were detained by U.S. military forces, Defendant Pappas and the Related-Action Defendants knew and had notice of widespread torture by subordinates but failed to take steps to stop the unlawful conduct.
172. Each of the Plaintiffs suffered serious physical and psychological injury as a result of Defendant Pappas’ actions and omissions.
173. Defendant Pappas’ subordinates maliciously and sadistically inflicted unnecessary pain and harm on Plaintiffs. Defendant Pappas could foresee these actions by his subordinates because he had notice that the U.S. military was engaging in torture or other cruel, inhuman or degrading treatment. Defendant Pappas thus acted with conscious disregard of the excessive risk of harm to Plaintiffs.
174. In carrying out his unlawful policies, patterns, practices and procedures, and in his other actions and omissions described above, Defendant Pappas violated clearly established constitutional rights and other domestic and international laws, and knew that he was doing so.
175. Absent judicial action, Plaintiffs have no meaningful avenue for obtaining adequate redress for their injuries, including a declaration of their rights against Defendant Pappas.
176. Plaintiffs have no effective means to prevent the policy, pattern, or practice at issue in this suit except through an action against high-ranking civilian and military U.S. commanders and officials.
177. Plaintiffs and each of them fear and are at risk of detention by the U.S. military and of continued injury and abuse in violation of law. On information and belief, Related-Action Defendant Rumsfeld has not rescinded his authorizations for harsh interrogation and detention policies that caused Plaintiffs’ torture or other cruel, inhuman or degrading treatment. Related-

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Action Defendant Rumsfeld’s policy, pattern or practice that caused Plaintiffs’ injuries continues in effect. VI. JURY DEMAND
178. Plaintiffs request a trial by jury in this action on each and every count alleged herein. VII. CLAIMS
First Cause Of Action Violation Of Fifth Amendment Due Process Clause 179. Paragraphs 1 through 178 are incorporated as if set forth fully herein. 180. Defendant’s actions described herein violate the Due Process Clause of the Fifth Amendment to the Constitution, which prohibits any person acting under color of U.S. law from engaging in or allowing torture, abuse or other treatment that “shocks the conscience,” of any person in U.S. custody or control. 181. In his conduct set forth in this Complaint, Defendant acted under color of federal law. 182. Defendant’s actions, orders, authorizations, approvals and omissions caused the torture and abuse of Plaintiffs in violation of the Fifth Amendment and gives rise to a cause of action for damages directly under the Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 183. Defendant and his subordinates authorized, ratified, and failed to stop and prevent the torture or other cruel, inhuman or degrading treatment of Plaintiffs and other detainees in U.S. custody, which occurred as a form of summary punishment for perceived or alleged wrongdoing. In effect, U.S. forces imposed sentence on Plaintiffs without an adjudication of guilt.

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184. Defendant had actual and constructive knowledge that his subordinates were violating the constitutional rights of Plaintiffs, and had actual and constructive knowledge that it was highly likely that these constitutional violations would occur as a result of his actions, orders, policies, practices and omissions. Despite this knowledge, Defendant acted with reckless and deliberate indifference to his subordinates’ unconstitutional actions. Through his actions and failures to act, Defendant expressly and tacitly authorized his subordinates’ unlawful conduct.
185. Defendant had power to formulate policies relating to the treatment and interrogation of detainees, and exercised that power to generate illegal practices, namely, the torture or other cruel, inhuman or degrading treatment of detainees in Iraq and Afghanistan.
186. Defendant directly and knowingly authorized his subordinates to engage in conduct that shocks the conscience — namely, the torture or other cruel, inhuman or degrading treatment of detainees.
Second Cause Of Action Violation Of The Fifth And Eighth Amendment Prohibition On Cruel And Unusual Punishment
187. Paragraphs 1 through 186 are incorporated as if set forth fully herein. 188. Defendant’s actions described herein violate the prohibition on cruel and unusual punishment in the Due Process Clause of the Fifth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment to the Constitution. Those amendments prohibit any person under color of U.S. law from engaging in or allowing torture, or other cruel, inhuman or degrading treatment or punishment or other treatment that constitutes deprivation of basic human needs such as food and reasonable safety, and the unnecessary and wanton infliction of pain on any person in U.S. custody or control. The Cruel and Unusual Punishment Clause of the Eighth Amendment and the Due Process Clause of the Fifth Amendment give rise to a cause of

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action for damages directly under the Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
189. Defendant Pappas and his subordinates authorized, ratified, and failed to stop and prevent the torture or other cruel, inhuman or degrading treatment of Plaintiffs and other detainees in U.S. custody, which occurred as a form of summary punishment for perceived or alleged wrongdoing and constituted imposition of sentence on Plaintiffs without an adjudication of guilt.
190. Defendant had power to formulate policies relating to the treatment and interrogation of detainees, and exercised that power to generate illegal practices, namely, the torture or other cruel, inhuman or degrading treatment of detainees in Iraq and Afghanistan
191. Defendant was responsible for the command and supervision of individuals who subjected Plaintiffs and other detainees to torture or other cruel, inhuman or degrading treatment. Defendant knew that his subordinates had engaged in such unlawful activity, including actions undertaken maliciously and sadistically for the very purpose of causing unnecessary pain and harm to further unlawfully the interrogation, punishment, intimidation or coercion of Plaintiffs and other detainees. Defendant also knew that it was highly likely that his subordinates would continue to engage in such unlawful torture or other cruel, inhuman or degrading treatment or punishment. Yet Defendant acted with deliberate indifference and conscious disregard of the high likelihood of injury, and failed to take steps to prevent his subordinates from engaging in such conduct.
Third Cause Of Action Torture In Violation Of The Law Of Nations 192. Paragraphs 1 through 191 are incorporated as if set forth fully herein.

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193. Defendant’s actions described herein violate the law of nations which prohibits engaging in or permitting torture. The prohibition against torture is a “specific, universal, and obligatory” norm, from which no derogation is allowed. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2763, 2766 (2004); id. at 2783 (Breyer, J., concurring); U.N. Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85.
194. Defendant’s actions and omissions are the direct and proximate cause of Plaintiffs’ injuries and give rise to a cause of action for a tort in violation of the law of nations.
195. Defendant had effective command and control of individuals who intentionally and knowingly subjected each of the Plaintiffs to torture, which is prohibited by the law of nations.
196. Defendant had actual and constructive knowledge of his subordinates’ torture of detainees in U.S. custody and violated his duty as a commander to punish the perpetrators or otherwise to prevent further acts of torture.
Fourth Cause Of Action Cruel, Inhuman Or Degrading Treatment In Violation Of The Law Of Nations 197. Paragraphs 1 through 196 are incorporated as if set forth fully herein. 198. Defendant’s actions described herein violate the law of nations which prohibits engaging in or permitting cruel, inhuman or degrading treatment or punishment. The prohibition against cruel, inhuman or degrading treatment is an international law norm, which applies without exception. See, e.g., International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Mar. 23, 1976; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Art. 147 & Art. 3 Common to all Four Geneva Conventions. Defendant’s actions and

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omissions are the direct and proximate cause of Plaintiffs’ injuries and give rise to a cause of

action for a tort in violation of the law of nations.

199. Defendant had effective command and control of individuals who intentionally

and knowingly subjected each of the Plaintiffs to cruel, inhuman or degrading treatment, which

is prohibited by the law of nations.

Defendant had actual and constructive knowledge of his subordinates’ torture of detainees in

U.S. custody, but did not fulfill his duty as a commander to punish the perpetrators or otherwise

to prevent further acts of cruel, inhuman or degrading treatment or punishment.

Fifth Cause Of Action Violation Of The Geneva Conventions 200. Paragraphs 1 through 199 are incorporated as if set forth fully herein.

201. Plaintiffs were tortured and subjected to other cruel, inhuman or degrading

treatment during their detentions in U.S. custody in violation of specific provisions of the Third

and Fourth Geneva Conventions, including but not limited to Article 3 Common to all Four

Conventions.

202. Violations of these provisions of the Geneva Conventions are direct and

enforceable treaty violations as well as violations of the law of nations.

203. Defendant is liable for violations of Plaintiffs’ rights under the Geneva

Conventions because Defendant formulated, authorized, approved, directed or ratified the torture

or other cruel, inhuman or degrading treatment of Plaintiffs as part of a policy, pattern or

practice. In addition, Defendant is liable because his subordinates deliberately and intentionally

engaged in the torture or other cruel, inhuman or degrading treatment of Plaintiffs while acting

under his effective command and control, and Defendant knew and should have know of his

subordinates’ actions but failed to prevent or punish them.

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Sixth Cause Of Action Declaratory Relief For Violation Of The Law Of Nations, Of The Geneva Conventions And Of
The Constitution 204. Paragraphs 1 through 203 above are incorporated as if fully set forth herein. 205. There is a real and actual controversy between Plaintiffs and Defendant as to whether he has violated the Plaintiffs’ legal rights under the law of nations, binding treaties and the U.S. Constitution as a result of torture or other cruel, inhuman or degrading treatment or punishment of Plaintiffs while in U.S. custody. 206. Plaintiffs reasonably fear that they are at risk of and will again be subjected to Defendant’s unlawful and unconstitutional actions, and seek a judicial declaration that Defendant’s conduct deprived them of their rights under the law of nations, provisions of the Geneva Conventions, and the Fifth and Eighth Amendments to the U.S. Constitution. 207. The Court therefore should grant declaratory relief and any further necessary and proper relief as set forth below, pursuant to 28 U.S.C. §§ 2201, 2202. PRAYER FOR RELIEF
Plaintiffs therefore respectfully request that the Court enter a judgment including but not limited to:
a. A declaration that the acts alleged herein are unlawful and violate the Constitution, treaty provisions including provisions of the Geneva Conventions, military rules and guidelines, and the law of nations;
b. A declaration that the policy, pattern, or practice of the Defendant alleged herein is unlawful and violates the Constitution, treaty provisions including provisions of the Geneva Conventions, military rules and guidelines, and the law of nations;

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c. A declaration that assigns responsibility for Plaintiffs’ injuries to Defendant for his failure to take necessary and adequate measures to prevent persons under his effective command from engaging in the torture or other cruel, inhuman or degrading treatment or punishment of Plaintiffs and his failure to punish persons under his effective command for engaging in such conduct;
d. Compensatory damages for violation of the law of nations and the Constitution in an amount that is fair, just and reasonable;
e. Attorneys’ fees and costs; and f. All other appropriate relief as may be just and proper.

LUCAS GUTTENTAG CECILLIA WANG American Civil Liberties Union
Foundation Immigrants’ Rights Project 405 14th Street, Suite 300 Oakland, CA 94612 Phone: (510) 625-2010 Fax: (510) 622-0050 Email: lguttentag@aclu.org
STEVEN R. SHAPIRO OMAR JADWAT AMRIT SINGH American Civil Liberties Union
Foundation 125 Broad Street New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2651 Email: sshapiro@aclu.org

Respectfully submitted,
______________________________ ANNETTE M. LAMOREAUX (ct25769) American Civil Liberties Union of
Connecticut Foundation 32 Grand Street Hartford, CT 06106 Phone: (860) 247-9823 x 211 Fax: (860) 728-0287 Email: annettel@cclu.org

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BILL LANN LEE CHIMÈNE I. KEITNER NIREJ S. SEKHON Lieff Cabraser Heimann & Bernstein LLP Embarcadero Center West 275 Battery Street, Suite 3000 San Francisco, CA 94111-3339 Phone: (415) 956-1000 Fax: (415) 956-1008 Email: blee@lchb.com
ERWIN CHEMERINSKY Duke University School of Law Science Drive & Towerview Rd. Durham, NC 27707 Phone: (919) 613-7173 Email: chemerinsky@law.duke.edu
DAVID RUDOVSKY Kairys, Rudovsky, Epstein & Messing LLP 924 Cherry St. Suite 500 Philadelphia PA 19107 Phone: (215) 925-4400 Email: drudovsky@krlawphila.com
PAUL HOFFMAN Schonbrun DeSimone Seplow Harris &
Hoffman LLP 723 Ocean Front Walk Venice, CA 90291 Phone: (310) 396-0731 Fax: (310) 399-7040 Email: Hoffman Hoffpaul@aol.com

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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Arkan Mohammed ALI, Thahe Mohammed SABBAR, Sherzad Kamal KHALID, Ali H., Mehboob AHMAD, Said Nabi SIDDIQI, Mohammed Karim SHIRULLAH, and Haji ABDUL RAHMAN,
Plaintiffs,
v.
Donald H. RUMSFELD, Secretary of Defense of the United States of America,
Defendant.

Case No. __________ JURY DEMAND

COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES

INTRODUCTION 1. Plaintiffs are individuals who were incarcerated in U.S. detention facilities in Iraq or Afghanistan where they were subjected to torture or other cruel, inhuman or degrading treatment or punishment, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, confinement in a wooden box, forcible sleep and sensory deprivation, mock executions, death threats, and restraint in contorted and excruciating positions. 2. The Plaintiffs, Arkan Mohammed Ali, Thahe Mohammed Sabbar, Sherzad Kamal Khalid, Ali H., Mehboob Ahmad, Said Nabi Siddiqi, Mohammed Karim Shirullah, and Haji Abdul Rahman, are among the unknown number of U.S. detainees in Iraq and Afghanistan who have suffered torture or other cruel, inhuman or degrading treatment. 3. Plaintiffs bring this action against Defendant Donald H. Rumsfeld, the U.S. Secretary of Defense, whose policies, patterns, practices, derelictions of duty and command

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failures caused Plaintiffs’ abuse. Defendant Rumsfeld bears the ultimate responsibility for the physical and psychological injuries that Plaintiffs have suffered.
4. Official government reports have documented, and military officials have acknowledged, many of the horrific abuses inflicted on detainees in U.S. custody. Such torture or other cruel, inhuman or degrading treatment or punishment of detainees in U.S. custody violates the United States Constitution, U.S.-ratified treaties including the Geneva Conventions, military rules and guidelines, the law of nations, and our fundamental moral values as a nation.
5. For generations, U.S. civilian and military leaders have sought to ensure that U.S. soldiers complied with legal mandates prohibiting torture and abuse under all circumstances and at all times regardless of whether our enemies respect the same principles. U.S. Army Field Manual 34-52, which describes the legal standards governing interrogations by U.S. military personnel, unequivocally states that binding international treaties and U.S. policy “expressly prohibit acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation. Such illegal acts are not authorized and will not be condoned by the U.S. Army.” The Manual specifically defines “physical torture” to include “infliction of pain through chemicals or bondage,” “forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time,” “food deprivation,” and “any form of beating.” The Manual, moreover, admonishes that “[r]evelation of use of torture by U.S. personnel will bring discredit upon the U.S. and its armed forces while undermining domestic and international support for the war effort. It also may place U.S. and allied personnel in enemy hands at a greater risk of abuse by their captors. Conversely, knowing the enemy has abused U.S. and allied [prisoners of war] does not justify using methods of interrogation specifically prohibited by [international law] and U.S. policy.”
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6. In stark contrast to these mandates and our traditions, the public record shows that detainees in U.S. custody in Iraq and Afghanistan were subjected to unlawful torture and abuse. Those abuses, which pervaded multiple U.S. detention centers in two separate countries, did not spring from the spontaneous acts of individual soldiers. As the report of former Defense Secretary James Schlesinger concluded, the abuses of detainees were “widespread,” and “were not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline. There is both institutional and personal responsibility at higher levels.”
7. The abuses occurred on a “widespread” basis because of orders and derelictions by Defendant Rumsfeld. Most critically, Defendant Rumsfeld authorized an abandonment of our nation’s inviolable and deep-rooted prohibition against torture or other cruel, inhuman or degrading treatment or punishment of detainees in U.S. military custody. These acts precipitated further violations of law and directly led to the abuse of Plaintiffs and other detainees in Afghanistan and Iraq. Among other consequences of Defendant Rumsfeld’s actions, highranking commanders permitted and implemented an unlawful policy, pattern or practice of torture and other cruel, inhuman or degrading treatment of detainees.
8. In addition, and independent of his orders, authorizations and actions causing subordinates to commit torture and other cruel, inhuman or degrading treatment, Defendant Rumsfeld also violated his legal duty by failing to stop torture or other cruel, inhuman or degrading treatment when he learned of it. Despite many credible and reliable reports of torture from governmental and non-governmental sources beginning in January 2002 and continuing throughout 2003 and 2004, Defendant Rumsfeld failed to take reasonable, necessary, timely and meaningful measures to prohibit and prevent abuses and to punish perpetrators. In doing so,
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Defendant Rumsfeld violated his obligations as a commander and acted with deliberate indifference and conscious disregard of the high risk of injuries inflicted on detainees and the violations of law committed by his subordinates. These actions and omissions caused the torture and abuses to continue and to spread. Plaintiffs, among many others, were injured as a proximate result of Defendant Rumsfeld’s conduct.
9. Defendant Rumsfeld cannot defend or rationalize the torture or other cruel, inhuman or degrading treatment of Plaintiffs and other detainees on the grounds that such techniques were deployed against carefully selected individuals who possessed critical intelligence information, or occurred only during the heat of battle, or were ordered under exigent circumstances. Most fundamentally, the prohibitions against torture or other cruel, inhuman or degrading treatment are absolute, non-discretionary and subject to no exception. They are designed not only to safeguard the security and dignity of every human being in times of armed conflict but also to ensure the humane treatment of U.S. soldiers when they are captured on the battlefield by enemy forces. Moreover and significantly, the International Committee of the Red Cross cited estimates by military intelligence that 70-90% of persons detained in Iraq had “been arrested by mistake.” Similarly, the Army Inspector General estimated that 80% of detainees “might be eligible for release” if their cases had been properly reviewed, and an internal military report cited estimates from the field that 85-90% of detainees at Abu Ghraib “were of no intelligence value.” Finally and critically, the unlawful orders, policies and practices did not issue under exigent circumstances or on the battlefield. Rather, the abuses had their genesis in and were continually reinforced by policies, patterns or practices deliberately formulated and adopted in the United States over long periods of time, were inflicted
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in numerous places over lengthy periods, and injured an unknown number of innocent civilian

detainees, including Plaintiffs, who posed no threat to U.S. forces.

10. Defendant Rumsfeld has not been held accountable for his acts, omissions and

failures of command. To this day, Plaintiff victims of Defendant Rumsfeld’s policies, practices,

patterns and actions have received no redress for their injuries. Accordingly, Plaintiffs seek a

declaration that determines the responsibility of Defendant Rumsfeld for the violations of law

that caused Plaintiffs’ injuries and seek monetary compensation for the injuries the Plaintiffs

suffered.

JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal

question jurisdiction), 28 U.S.C. § 1350 (the Alien Tort Statute), and directly under the

Constitution.

12. Venue is proper pursuant to 28 U.S.C. § 1391(b)(1)-(2) and (e).

A. Plaintiffs

PARTIES

13. The Plaintiffs in this action are all former detainees of U.S. military forces in

either Afghanistan or Iraq. Each of the Plaintiffs was tortured and/or subjected to cruel, inhuman

or degrading treatment while in U.S. military custody. Each of the Plaintiffs was eventually

released from U.S. custody without ever being prosecuted for any wrongdoing, and without ever

receiving any redress for the injuries he suffered as a result of torture and other mistreatment.

14. Plaintiff Arkan Mohammed Ali (hereinafter “Arkan M. Ali”), age 26, is a citizen

of Iraq who was detained by the U.S. military at various locations in Iraq for almost one year,

from July 2003 to June 2004. The U.S. military assigned to Plaintiff Arkan M. Ali detainee

number 115319. During his detention by the U.S. military, Plaintiff Arkan M. Ali was subjected

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to torture or other cruel, inhuman or degrading treatment, including but not limited to severe beatings to the point of unconsciousness, stabbing and mutilation, isolation while naked and hooded in a wooden coffin-like box, prolonged sleep deprivation enforced by beatings, deprivation of adequate food and water, mock execution and death threats. During relevant time periods, Plaintiff Arkan M. Ali was under the control and authority of Defendant Rumsfeld and his subordinates.
15. Plaintiff Thahe Mohammed Sabbar, age 36, is a citizen of Iraq who was detained by the U.S. military for approximately six months from July 2003 to January 2004 at various locations in Iraq. The U.S. military assigned to Plaintiff Sabbar detainee numbers 12538 and 116676. During his detention by the U.S. military, Plaintiff Sabbar was subjected to torture or other cruel, inhuman or degrading treatment, including but not limited to severe beatings, sexual assault and humiliation, deprivation of adequate food and water, intentional prolonged exposure to dangerously high temperatures, mock execution and death threats. During relevant time periods, Plaintiff Sabbar was under the control and authority of Defendant Rumsfeld and his subordinates.
16. Plaintiff Sherzad Kamal Khalid, age 34, is a citizen of Iraq who was detained by the U.S. military at various locations in Iraq for approximately two months from July 2003 through September 2003. The U.S. military assigned to Plaintiff Khalid detainee number 12537. During his detention by the U.S. military, Plaintiff Khalid was subjected to torture or other cruel, inhuman or degrading treatment, including but not limited to frequent and severe beatings, sexual abuse involving assault and threats of anal rape, deprivation of adequate food and water, mock executions, death threats, intentional exposure to dangerously high temperatures, and
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prolonged sleep deprivation enforced by beatings. During relevant time periods, Plaintiff Khalid was under the control and authority of Defendant Rumsfeld and his subordinates.
17. Plaintiff Ali H. (hereinafter “Ali H.”), age 19, is a citizen of Iraq who was detained by the U.S. military at various locations in Iraq for approximately four weeks from August to September 2003. At the time of his detention, Plaintiff Ali H. was a minor and high school student. The U.S. military assigned to Plaintiff Ali H. detainee number 14358. During his detention by the U.S. military, Plaintiff Ali H. was subjected to torture or other cruel, inhuman or degrading treatment, including but not limited to intentional withholding and delay of necessary medical treatment to cause pain, fear and humiliation; intentional infliction of pain after surgery by dragging him from one location to another and forcefully ripping away the surgical dressing, and by exposing him to infection by leaving his surgical wound half-bandaged; and intentional deprivation of adequate food and water. During relevant time periods, Plaintiff Ali H. was under the control and authority of Defendant Rumsfeld and his subordinates.
18. Plaintiff Mehboob Ahmad, approximate age 35, is a citizen of Afghanistan who was detained by the U.S. military at various locations in Afghanistan for approximately five months from June to November 2003. The U.S. military assigned Plaintiff Ahmad detainee number 655 at a detention facility at the U.S. Air Base in Bagram (“Bagram detention facility”). During his detention by the U.S. military, Plaintiff Ahmad was subjected to torture or other cruel, inhuman or degrading treatment, including but not limited to directly and deliberately inflicted pain, placement in restraints and positions calculated to cause pain (including suspension from the ceiling by his limbs), intimidation with a vicious dog, questioning while naked, threats directed at his family, and sensory deprivation. During relevant time periods,
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Plaintiff Ahmad was under the control and authority of Defendant Rumsfeld and his subordinates.
19. Plaintiff Said Nabi Siddiqi, approximate age 48, is a citizen of Afghanistan who was detained by the U.S. military at various locations in Afghanistan for nearly two months, from July to August 2003. The U.S. military assigned Plaintiff Siddiqi detainee number 261 at the U.S. detention facility in Kandahar and number 676 at the Bagram detention facility. During his detention by the U.S. military, Plaintiff Siddiqi was subjected to torture or other cruel, inhuman or degrading treatment, including but not limited to beatings, placement in restraints and positions calculated to cause pain, verbal abuse of a sexual nature, humiliation by being photographed while naked, denial of water, intentional deprivation of necessary medication exacerbated by physical abuse, intentional and prolonged exposure to dangerous temperature extremes, and sleep deprivation. During relevant time periods, Plaintiff Siddiqi was under the control and authority of Defendant Rumsfeld and his subordinates.
20. Plaintiff Mohammed Karim Shirullah, approximate age 45, is a citizen of Afghanistan who was detained by the U.S. military at various locations in Afghanistan for approximately six months, from December 2003 to June 2004. The U.S. military assigned Plaintiff Shirullah detainee number 821 at the Bagram detention facility. During his detention by the U.S. military, Plaintiff Shirullah was subjected to torture or other cruel, inhuman or degrading treatment, including but not limited to beatings, placement in restraints and positions calculated to cause pain, humiliation by being interrogated and photographed while naked, sensory deprivation and solitary confinement for an extended period, intentional denial of medical care for injuries caused by abuse, intentional and prolonged exposure to dangerous temperature extremes, dousing with cold water, and sleep deprivation. During relevant time
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periods, Plaintiff Shirullah was under the control and authority of Defendant Rumsfeld and his subordinates.
21. Plaintiff Haji Abdul Rahman, approximate age 48, is a citizen of Afghanistan who was detained by the U.S. military at various locations in Afghanistan for approximately five months, from December 2003 to May 2004. Plaintiff Abdul Rahman was assigned detainee number 819 at the Bagram detention facility. During his detention by the U.S. military, Plaintiff Abdul Rahman was subjected to torture or other cruel, inhuman or degrading treatment, including but not limited to directly and deliberately inflicted pain, humiliation by being questioned and photographed while naked, complete sensory deprivation for 24 hours, solitary confinement, and sleep deprivation. During relevant time periods, Plaintiff Abdul Rahman was under the control and authority of Defendant Rumsfeld and his subordinates.
B. Defendant 22. Defendant Donald H. Rumsfeld is, and was at all relevant times, the Secretary of Defense, the highest-ranking civilian official in the U.S. Department of Defense. He exercises command and control over all members of the U.S. military, including all individual military personnel with direct contact with or responsibility for detainees in Iraq and Afghanistan. Defendant Rumsfeld is a citizen of the United States and a resident of Illinois, where he maintains his primary residence. He is sued in his individual and official capacities.
LEGAL FRAMEWORK 23. The prohibition against torture is a peremptory jus cogens norm from which no derogation is allowed. It is universally recognized and is binding on all persons under all circumstances. As U.S. courts have recognized, the torturer, “like the pirate and slave trader before him,” is “hostis humanis generis, an enemy of all mankind.” Filartiga v. Pena-Irala, 630 F. 2d 876, 890 (2d Cir. 1980). Torture or other cruel, inhuman or degrading treatment of
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detainees is universally prohibited by the laws of all civilized societies in clear and unambiguous terms. Article 17 of the Third Geneva Convention, included as part of U.S. Army Field Manual 27-10, The Law of Land Warfare, provides that “no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.” Article 32 of the Fourth Geneva Convention, also incorporated in Field Manual 27-10, prohibits the torture of civilians. Article 3 Common to all Four Geneva Conventions expressly prohibits “violence to life and person, … murder of all kinds, mutilation, cruel treatment and torture….” The U.N. Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85, which was ratified by the United States in 1994, confirms the nonderogable nature of this prohibition. The U.S. Supreme Court recently reaffirmed that torture is among the gravest violations of the law of nations. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2763 (2004); id. at 2783 (Breyer, J., concurring).
24. U.S. military law and regulations incorporate these international and domestic prohibitions against the use of torture or other cruel, inhuman or degrading treatment, and obligate U.S. military personnel to abide by those binding norms. Article 93 of the Uniform Code of Military Justice imposes criminal liability on members of the U.S. military who mistreat detainees in their custody. Army Field Manual 34-52, which governs the conduct of interrogations by military interrogators, unambiguously prohibits “acts of violence or intimidation, including physical or mental torture, threats, insults or exposure to inhumane treatment as a means of or aid to interrogation.” Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, prohibits “the use of physical or mental torture or any coercion to compel prisoners to provide information[,]” and provides

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that “[n]o form of physical torture or moral coercion will be exercised against the [civilian
internee].”
25. No circumstance excuses torture or other cruel, inhuman or degrading treatment.
In 1999, the United States declared in its initial report to the U.N. Committee Against Torture:
Torture … is categorically denounced as a matter of policy and as a tool of state authority. … No official of the Government, federal or state, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on ground of exigent circumstances … or on orders from a superior officer or public authority, and the protective mechanism of an independent judiciary are not subject to suspension.
26. In the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which the United States ratified in 1994, torture is defined as “any act
by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of having committed,
or intimidating or coercing him or a third person … when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public official or other person acting
in an official capacity.”
27. In the 2003 country reports on human rights, the U.S. Department of State
condemned other countries for abuse of prisoners and identified beatings, blindfolding, denials of
food and water, dog attacks, use of forced painful positions, mock executions, slapping, sleep
deprivation, solitary confinement, stripping, and threats of sexual abuse as serious violations of
human rights. A report posted on the White House website condemns as torture the following

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acts, among others, of the Saddam Hussein regime: denial of food and water, threats to rape or otherwise harm family members and relatives, pulling out of fingernails, extended solitary confinement in dark and extremely small compartments, and beatings. These condemnations reflect an absolute U.S. policy against torture, emphasized by President Bush on June 22, 2004, when he declared that “the values of this country are such that torture is not a part of our soul and our being.” The Justice Department recognized in its recent Office of Legal Counsel memorandum dated December 30, 2004 that “[t]orture is abhorrent both to American law and values and to international norms,” and endorsed court decisions that define torture to include such conduct as death threats, frequent beatings, sleep deprivation and extended shackling.
28. In order to ensure that these fundamental protections are enforced, U.S. law, the law of nations, and binding treaty provisions provide for the liability of military or civilian commanders who authorize their subordinates to commit torture or other cruel, inhuman or degrading treatment of prisoners.
29. The Fifth and Eighth Amendments to the U.S. Constitution prohibit torture or other cruel, inhuman or degrading treatment. The Fifth Amendment to the Constitution prohibits conduct against persons in U.S. custody that “shocks the conscience,” including torture. Rochin v. California, 342 U.S. 165, 172-73 (1952). The Eighth Amendment also prohibits such conduct, as its core function is “to proscribe torture and other barbarous methods of punishment.” Estelle v. Gamble, 429 U.S. 97, 102 (1976).
30. U.S. civilian and military commanders and officials are prohibited from violating the prohibitions of the U.S. Constitution, and are liable for injuries caused by their direct orders. Supervisors are also liable for the constitutional violations of their subordinates when (1) they knew or had reason to know that their subordinates were subjecting detainees in U.S. custody to

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torture and other abuse that shocks the conscience; (2) despite such knowledge, they created and left in place conditions in which torture or other cruel, inhuman or degrading treatment would occur; (3) they understood the substantial likelihood that torture and other abuse would ensue, but acted with deliberate indifference or conscious disregard of that likelihood and failed to take steps to prevent it; and (4) their actions were the proximate cause of injuries suffered by plaintiffs. See, e.g., Farmer v. Brennan, 511 U.S. 825, 839 (1994); Estelle, 429 U.S. at 106; Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988).
31. The law of nations also imposes liability on superior officers for the acts of their subordinates. If the superior officer issues an order that is lawful on its face, liability attaches if the commanding officer knows of the substantial likelihood that torture or other cruel, inhuman or degrading treatment will result from the execution of the order. The doctrine of command responsibility, recognized by the U.S. Supreme Court since In re Yamashita, 327 U.S. 1 (1946), imposes liability on superior officers if they (1) exercised effective control over those subordinates who engaged in torture and other mistreatment of plaintiff detainees in violation of the law of nations; (2) knew or had reason to know of their subordinates’ unlawful conduct; and (3) despite such knowledge, failed to take reasonable and necessary measures to prevent their subordinates’ conduct.
FACTUAL ALLEGATIONS A. General Allegations 32. The U.S. military maintains detention facilities in Afghanistan and Iraq at which Plaintiffs and others in U.S. military custody were tortured or otherwise abused by U.S. military personnel and others acting under the direction of or with the authorization of the U.S. military, pursuant to a policy, pattern or practice of misconduct.

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33. The torture or other cruel, inhuman or degrading treatment of Plaintiffs alleged in this complaint occurred in enclaves under the exclusive jurisdiction of the United States and the exclusive control of the U.S. military. Access to detainees by any person including agents or employees of other governments and other U.S. government agencies is and was only with the express or tacit permission of the U.S. military.
34. Until the actions, omissions and derelictions of Defendant Rumsfeld alleged herein, the Armed Forces of the United States were absolutely forbidden to engage in torture or other cruel, inhuman or degrading treatment or punishment. No exceptions were permitted and no such conduct was authorized.
35. Defendant Rumsfeld and other high-ranking military leaders began to abandon the absolute prohibition against torture soon after the military conflict in Afghanistan began. Defendant Rumsfeld’s policies and practices authorized the use of interrogation techniques -which were forbidden under military regulations -- against detainees arrested in Afghanistan, both in that country and at the U.S. detention facility at Guantanamo Bay, Cuba. Through further policies, practices and derelictions of duty, which extended those illegal techniques to Iraq, Defendant Rumsfeld and other commanders further compromised the prohibitions against torture or other cruel, inhuman or degrading treatment. Because of their policies, patterns, practices, acts, and omissions, the inviolable and deep-rooted prohibition of torture or cruel, inhuman or degrading treatment of detainees in U.S. custody was altered and abandoned.
36. Defendant Rumsfeld issued orders, adopted policies and granted authorizations that fundamentally altered the interrogation practices of the U.S. military. Through his actions and derelictions, he expressly permitted cruel, inhuman or degrading treatment or punishment and tolerated or authorized torture. He issued critical orders and directives that led to widespread

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torture and abuse, knew of torture and abuse of detainees by his subordinates in Afghanistan and Iraq, and failed to prevent and punish such conduct. As a direct and predictable result of Defendant Rumsfeld’s policies, practices and authorizations, the U.S. military engaged in practices that violated the absolute prohibition against torture or other cruel, inhuman or degrading treatment.
37. Defendant Rumsfeld’s acts, authorizations and omissions adopting and implementing those policies, patterns or practices occurred in the United States. These include: Defendant Rumsfeld’s authorization of harsh interrogation techniques; his application of intense pressure on subordinates to obtain intelligence; his and Under Secretary of Defense Stephen Cambone’s decision to send U.S. Army Major General Geoffrey Miller to Iraq to implement policies that predictably led to torture; his tolerance and acceptance of torture; his command failure to investigate or punish subordinates for their acts; and his command failure to issue unequivocal orders to stop or prohibit torture or other cruel, inhuman or degrading treatment when he knew and should have known of the torture or other cruel, inhuman or degrading treatment of detainees in U.S. military custody in Afghanistan, Guantanamo and Iraq.
38. In addition to this action against Defendant Rumsfeld, the Plaintiffs who were detained and abused in Iraq are bringing separate actions for damages against three high-ranking military commanders in the various federal district courts that have personal jurisdiction over those defendants. In addition to Defendant Rumsfeld, Plaintiffs are suing the following highranking U.S. Army officials: Lieutenant General Ricardo Sanchez, who was Commander of the Coalition Joint Task Force-7 (“CJTF-7”), the U.S.-led military coalition in Iraq, from June 2003 to July 2004; Brigadier General Janis Karpinski, who commanded the 800th Military Police Brigade, the unit of the U.S. Army responsible for detention facilities in Iraq, from

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approximately June 2003 to May 2004; and Colonel Thomas Pappas, who at relevant times commanded the 205th Military Intelligence Brigade, oversaw military intelligence personnel in Iraq, and commanded the Joint Interrogation and Debriefing Center at Abu Ghraib.
39. As a consequence of Defendant Rumsfeld’s actions, Lieutenant General Sanchez issued policies and authorizations that expressly permitted cruel, inhuman or degrading treatment and that tolerated or authorized torture. Lieutenant General Sanchez, who was in command of all military forces in Iraq, promulgated and implemented policies causing, allowing and failing to prevent or stop torture and abuse in Iraq; knew of torture and abuse of detainees by his subordinates; and failed to prevent and punish such conduct.
40. As a further consequence of Defendant Rumsfeld’s actions, Brigadier General Karpinski, who was in command of military police in Iraq, executed the unlawful policies, patterns or practices causing torture and abuse; knew of torture and abuse of detainees by her subordinates; and failed to prevent and punish such conduct.
41. As a further consequence of Defendant Rumsfeld’s actions, Colonel Pappas, who was in command of military intelligence in Iraq and the Joint Interrogation and Debriefing Center at Abu Ghraib, executed the unlawful policies, patterns or practices causing torture and abuse; knew of torture and abuse of detainees by his subordinates; and failed to prevent and punish such conduct.
42. Defendant Rumsfeld’s actions and derelictions caused the torture and abuse to continue and to spread. Defendant Rumsfeld and other high-ranking U.S. commanders under his command knew that torture and abuse was widespread and systemic. They did not stop or prevent it because they accepted it and acted with deliberate indifference and conscious disregard

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of the high likelihood that their actions and derelictions would cause their subordinates to torture and otherwise mistreat detainees in U.S. custody.
43. These actions, orders, authorizations, and derelictions caused the Plaintiffs in this action and at least hundreds of other civilian, non-combatant detainees in Afghanistan and Iraq to be tortured and otherwise abused in violation of the U.S. Constitution, U.S.-ratified treaties including the Geneva Conventions, and the law of nations.
44. Defendant Rumsfeld is among the civilian officials and military commanders in positions of responsibility whose violations of law have come to light as a result of publicly disclosed reports, documents and other information. Upon information and belief, other civilian officials and military commanders are also liable for the torture or other cruel, inhuman or degrading treatment suffered by Plaintiffs and other detainees. Such additional individuals may also be named as defendants as additional information about their conduct comes to light.
B. Defendant’s Actions and Failures of Command 1. Defendant’s Interrogation Policies, Patterns or Practices
45. Defendant Rumsfeld is or was at all relevant times personally responsible for developing, authorizing, supervising, and/or implementing the policies, patterns or practices governing the detention and interrogation of detainees in Afghanistan or Iraq during the time that the Plaintiffs were in the custody of the U.S. military. These policies, patterns or practices directly caused the widespread and systemic torture or other cruel, inhuman or degrading treatment of Plaintiffs and other detainees in violation of the U.S. Constitution, treaty provisions including the Geneva Conventions, military rules and guidelines, and the law of nations.
46. On December 2, 2002, Defendant Rumsfeld personally approved a list of illegal interrogation techniques (the “December Rumsfeld Techniques”) for use on detainees at Guantanamo. As set forth below, the December Rumsfeld Techniques included techniques later

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used by subordinates in Afghanistan and Iraq with Defendant Rumsfeld’s knowledge and approval. These techniques were contrary to the established rules and military standards governing detention and interrogation as set forth in Army Field Manual 34-52. The December Rumsfeld Techniques included the following: the use of “stress positions,” 20-hour interrogations, the removal of clothing, playing upon a detainee’s phobias to induce stress (such as through the use of dogs), deception to make the detainee believe the interrogator was from a country with a reputation for torture, the use of falsified documents and reports, isolation for up to 30 days, and sensory deprivation.
47. According to documents released by the U.S. government pursuant to litigation under the Freedom of Information Act, American Civil Liberties Union Foundation, et al. v. Dep’t of Defense, et al., No. 04-cv-4151 (AKH) (S.D.N.Y. 2004), the Federal Bureau of Investigation began to document and complain about the interrogation techniques used by the military on detainees in Guantanamo as early as late 2002.
48. On January 15, 2003, Defendant Rumsfeld rescinded his blanket authorization of only some of the techniques in the December Rumsfeld Techniques. However, he failed to take any meaningful action to prevent, investigate, or punish the use of these unlawful techniques. Instead, in an order to the commander of the U.S. Southern Command, Defendant Rumsfeld stated that he personally could authorize the continued use of the otherwise-rescinded techniques, and that he wanted to be involved in the formulation of a plan to use them: “Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me. Such a request should include a thorough justification for the employment of those techniques and a detailed plan for the use of such techniques.”

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49. Also on January 15, 2003, Defendant Rumsfeld directed the General Counsel of the Department of Defense to convene a “Working Group” on interrogation techniques for his personal review and consideration. For its analysis, the Working Group solicited information from U.S. military officers in Afghanistan concerning techniques being used by U.S. forces there.
50. By December 2002, interrogators in Afghanistan had begun using harsh interrogation techniques on detainees, including the use of stress positions, dogs to induce fear, and sensory deprivation. These techniques are inconsistent with those listed in Army Field Manual 34-52. At the Working Group’s request, military commanders in Afghanistan forwarded descriptions of these techniques to the Department of Defense. The Working Group did not express any objection to any of the techniques in use in Afghanistan. U.S. personnel continued to use those techniques despite their inconsistency with standing military doctrine embodying international and domestic legal norms.
51. The Working Group reported to Defendant Rumsfeld on April 4, 2003, and recommended 35 interrogation techniques for use at Guantanamo. Defendant Rumsfeld, on April 16, 2003, personally approved the use of 24 of the techniques (the “April Rumsfeld Techniques”). These April Rumsfeld Techniques were based in part on information about techniques previously used by U.S. personnel in Afghanistan.
52. At the time Defendant Rumsfeld issued the April Rumsfeld Techniques, reports of widespread and systemic detainee abuse in Afghanistan had already surfaced, and Defendant Rumsfeld knew and should have known of them.
53. The April Rumsfeld Techniques included isolation for up to thirty days, dietary manipulation, environmental manipulation, “sleep adjustment,” and “false flag” (leading

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detainees to believe that they have been transferred to a country that permits torture), none of which is consistent with the authorized interrogation techniques in Army Field Manual 34-52. Defendant Rumsfeld again provided that even harsher techniques could be used with his personal authorization. As set forth below, the April Rumsfeld Techniques, many of which had been used already in Afghanistan, were later used in Iraq.
54. On information and belief, in the summer of 2003, Defendant Rumsfeld and Under Secretary of Defense Cambone knew of widespread torture and other abuse of detainees in Iraq and Guantanamo. However, they took no steps to prevent or punish these abuses. Instead, Defendant Rumsfeld took measures to increase the pressure on interrogators in a manner that he knew was highly likely to result in further torture or other cruel, inhuman or degrading treatment.
55. On information and belief, Under Secretary Cambone supervised and implemented, and Defendant Rumsfeld approved, the activities of a clandestine program composed jointly of U.S. military and CIA personnel. This program began operations in Iraq in or around the summer of 2003. On information and belief, members of this program were authorized to use unlawful interrogation tactics, including physical and sexual humiliation, against Iraqi detainees.
56. In addition, Defendant Rumsfeld and Under Secretary Cambone sent Major General Geoffrey Miller, who was then the commander of the U.S. military joint task force at Guantanamo, to Iraq to deploy more aggressive interrogation methods on a widespread basis. In public testimony to Congress, Under Secretary Cambone admitted that Miller was sent to Iraq with his “encouragement” “to make certain that [the United States] had the proper conditions within [detention facilities in Iraq] in order for . . . information to be gathered.” According to

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Brigadier General Karpinski, Miller told her that he was sent by Defendant Rumsfeld and Under Secretary Cambone to “gitmo-ize” detention facilities there by causing Guantanamo interrogation practices to be used on detainees in Iraq.
57. On information and belief, Defendant Rumsfeld knew that Miller intended to apply in Iraq the techniques that Defendant Rumsfeld had approved for use at Guantanamo, among others. On information and belief, Defendant Rumsfeld also knew and should have known about the widespread detainee torture or other cruel, inhuman or degrading treatment of detainees at Guantanamo and in Afghanistan while those techniques were in use. Thus, Defendant Rumsfeld knew that it was highly likely that his actions in approving Miller’s visit to Iraq would exacerbate the abuse of detainees there.
58. As a result of the order by Defendant Rumsfeld and Under Secretary Cambone, Miller and his team caused illegal interrogation techniques from Guantanamo to be used against detainees in Iraq. Miller’s team consisted of 17 military personnel, all of whom had served at Guantanamo. Miller and his team used the April Rumsfeld Techniques as a “baseline” for recommending new, harsher interrogation techniques for use at the U.S. detention facility at Abu Ghraib in Iraq. According to Colonel Pappas, detainee policies and procedures at Abu Ghraib were enacted as a specific result of Miller’s visit.
59. Brigadier General Karpinski has stated that Miller told her that detainees at Guantanamo were “treated like dogs,” and that he recommended the same for detainees in Iraq. Brigadier General Karpinski admitted that she did not have authority to allow military intelligence operatives to control conditions at Abu Ghraib. However, she acquiesced in Major General Miller’s plan to do so. Brigadier General Karpinski has further stated that Miller informed her that Lieutenant General Sanchez had given Miller complete authority to take over

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any detention facility he wanted. Brigadier General Karpinski carried out the plans of Lieutenant General Sanchez and Miller, thus abdicating her duty as a commander to prevent torture or other cruel, inhuman or degrading treatment.
60. Among other techniques, General Miller recommended the use of dogs with detainees in Iraq. On information and belief, dogs were intentionally used to instill fear in detainees and the practice was based on the belief that Arabs have a culturally-based fear of dogs. Based on Miller’s recommendation, Colonel Pappas instituted the use of dogs to “set[ ] the atmosphere for which, you know, you could get information.”
61. In the summer of 2003, in anticipation of obtaining approval for harsher interrogation practices, a member of Lieutenant General Sanchez’s staff transmitted an email message asking military intelligence personnel in Iraq to provide by August 17, 2003 a “wish list” of interrogation techniques they wished to use. The email stated the “gloves are coming off,” and “we want these individuals broken.”
62. In early 2003, Captain Carolyn Wood and members of the 519th Military Intelligence Battalion under her command were transferred from Afghanistan to Iraq. Previously, while deployed in Afghanistan, members of the 519th Military Intelligence Battalion under Wood’s command had killed two detainees. In July 2003, Captain Wood and her battalion were assigned to Abu Ghraib. After arriving in Iraq, Captain Wood proposed a list of 30 interrogation techniques for use at Abu Ghraib to Lieutenant General Sanchez for approval. Lieutenant General Sanchez’s staff approved these techniques. On information and belief, the approved techniques included stress positions, sensory and sleep deprivation, and use of dogs.
63. On September 14, 2003, in response to General Miller’s call for Guantanamo-like interrogation policies for use in Iraq, as directed by Defendant Rumsfeld, and a request for

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guidance from the 519th Military Intelligence Battalion, Lieutenant General Sanchez signed a memorandum authorizing the use of 29 interrogation techniques (the “September Sanchez Techniques”), 12 of which were inconsistent with Army Field Manual standards, including five that went beyond those authorized by Defendant Rumsfeld for use at Guantanamo. The September Sanchez Techniques included the use of dogs, stress positions, and sensory deprivation. The use of dogs, stress positions, yelling, loud music, and light control required Lieutenant General Sanchez’s personal approval. The September Sanchez Techniques were based on two sources: (1) the April Rumsfeld Techniques, which General Miller gave to Lieutenant General Sanchez earlier in the month, and (2) suggestions from Captain Wood, who brought with her a list of techniques that had been used by the 519th Military Intelligence Battalion in Afghanistan. Lieutenant General Sanchez issued the September Sanchez Techniques a few days after Defendant Rumsfeld visited the U.S. detention facility at Abu Ghraib.
64. On October 12, 2003, Lieutenant General Sanchez modified his previous September 14, 2003, authorization of particular techniques, but continued to authorize interrogators to “control” the lighting, heating, food, shelter, and clothing given to detainees. Although Lieutenant General Sanchez’s October 12 order placed certain restrictions on the use of dogs, such as requiring a muzzle, he continued to permit the use of dogs in interrogations, provided that interrogators applied for and received prior authorization. Lieutenant General Sanchez indicated that he could approve the use of such techniques on a case-by-case basis.
65. On information and belief, while in command at the Abu Ghraib prison, Colonel Pappas authorized the following interrogation techniques: sleep deprivation, use of dogs to intimidate detainees, shackling, and forced stripping of detainees.

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66. Defendant Rumsfeld personally issued unlawful interrogation policies and caused other such policies to be issued by others, while simultaneously pursuing policies that fostered and condoned torture or other cruel, inhuman or degrading treatment. Specifically, Defendant Rumsfeld and others caused the implementation of unorthodox command structures, permitted personnel responsible for detention and interrogation to operate with inadequate training, and pressured subordinates to produce intelligence through interrogations at all costs.
67. Defendant Rumsfeld and others under his command established command structures that were contrary to military doctrine, in a manner highly likely or calculated to cause torture or other cruel, inhuman or degrading treatment. For example, high-level commanders in Iraq implemented a recommendation by General Miller – whom Defendant Rumsfeld had sent to Iraq – that military intelligence and military police work together to “set the conditions for interrogations.” The use of military police soldiers as assistance for interrogation was improper and done for the purpose of inflicting abuse on detainees to make them compliant during interrogation. Military intelligence officers told military police soldiers, who were untrained in detainee interrogation tactics, to “make sure” that a detainee “has a bad night,” or “make sure he gets the treatment.”
68. This improper and dangerous misuse of military police personnel was specifically implemented at Abu Ghraib. On November 19, 2003, Lieutenant General Sanchez appointed Colonel Pappas of the 205th Military Intelligence Brigade as the base commander for Abu Ghraib prison, and made him responsible for the support of all military police assigned to the prison. This command structure was contrary to existing military doctrine because Colonel Pappas was a military intelligence officer and should not also have commanded military police, and exacerbated the confusion as to who was in charge at the prison. Military police soldiers

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under the command of Colonel Pappas have stated that he encouraged them to “soften up” detainees for interrogation, which they understood to mean physical and mental abuse.
69. Defendant Rumsfeld and others under his command also increased the likelihood that subordinates would torture and otherwise abuse detainees by tolerating a lack of adequate training in detainee and interrogation operations for subordinate military personnel, with knowledge that the lack of training was contributing to an atmosphere permissive of torture or other cruel, inhuman or degrading treatment.
70. Official government reports have pointed to “intense pressure felt by the personnel on the ground to produce actionable intelligence from detainees” as the cause of the torture or other cruel, inhuman or degrading treatment. According to Lieutenant General Sanchez, high-ranking officers, including, on information and belief, Defendant Rumsfeld, placed “great pressure . . . upon the intelligence system to produce actionable intelligence.” Colonel Pappas claims that he felt “intense pressure” placed on him by superior officers “for intelligence from interrogations.” Colonel Pappas in turn put great pressure on his subordinates for intelligence.
71. On information and belief, Defendant Rumsfeld has not renounced, revoked or rescinded policies, orders and authorizations that caused Plaintiffs to be tortured and subjected to cruel, inhuman or degrading treatment by Defendants’ subordinates. Despite widespread and systemic abuse of detainees, Defendant Rumsfeld has not unequivocally revoked authorization for and prohibited use of all interrogation techniques contrary to the U.S. Army Field Manual.
2. Defendant’s Knowledge of Torture and Abuse of Detainees 72. Independent of Defendant Rumsfeld’s orders or authorizations, beginning as early as 2002, and both before and throughout the time Plaintiffs were detained in U.S. custody, Defendant Rumsfeld knew and should have known that individuals under his actual and effective

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command were engaging in or permitting the torture and other abuse of detainees in U.S. custody in violation of U.S. and international law. Despite this knowledge, Defendant Rumsfeld failed to take reasonable and necessary steps to prohibit, prevent and end the torture and abuse.
73. Defendant Rumsfeld and others under his command had actual and constructive knowledge of torture and other cruel, inhuman or degrading treatment based on numerous sources including but not limited to those set forth in the following paragraphs.
74. In or about early 2002, soon after the start of military actions in Afghanistan, Defendant Rumsfeld had actual notice of torture and other abuse of detainees arrested by U.S. forces in Afghanistan. In December 2001, John Walker Lindh, a U.S. citizen arrested and detained by the U.S military in Afghanistan, was photographed while stripped naked and bound to a stretcher.
75. On January 7, 2002, the non-governmental organization Amnesty International wrote a letter to Defendant Rumsfeld expressing concern about the treatment of detainees captured in Afghanistan. It noted in the letter that “as well as hooding, the following methods of interrogation may not be used as they violate the prohibition of torture and ill-treatment: restraining in very painful conditions; playing of loud music; prolonged sleep deprivation; threats, including death threats; violent shaking; and using cold air to chill the detainee.”
76. On January 22, 2002, Amnesty International sent another letter to Defendant Rumsfeld, complaining about the treatment of detainees.
77. On April 10, 2002, Amnesty International again sent a lengthy memorandum to Defendant Rumsfeld, among others, in order to bring attention to allegations of mistreatment of detainees in Afghanistan and at Guantanamo. Defendant Rumsfeld was questioned about the April 10, 2002, Amnesty International memorandum during a news briefing on April 15, 2002.

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78. On information and belief, in late 2002, a high-ranking Defense Department official who reported directly to Defendant Rumsfeld received complaints from agents of the Federal Bureau of Investigation (“FBI”) about abusive interrogation tactics used against detainees at Guantanamo. On information and belief, Defendant Rumsfeld was aware of these complaints.
79. Documents produced by the Department of Defense pursuant to litigation under the Freedom of Information Act, see American Civil Liberties Union Foundation, et al. v. Dep’t of Defense, et al., No. 04-cv-4151 (AKH) (S.D.N.Y. 2004), reveal that in August 2002, the Criminal Investigations Command found probable cause to charge a team of four U.S. military personnel with the murder of an Afghan detainee in U.S. custody and a conspiracy relating to the murder. The Criminal Investigations Command also found probable cause to charge a fifth U.S. soldier with being an accessory after the fact, and found that the team’s commander had instructed a soldier to destroy incriminating photographs of the victim’s body. Despite the Criminal Investigations Command’s findings, the Commander’s Report recorded no courtmartial proceedings in the case and no disciplinary action other than a single written reprimand of one soldier.
80. Defendant Rumsfeld and other U.S. civilian officials and military commanders knew of widespread detainee mistreatment in Afghanistan on or before December 26, 2002, when the Washington Post reported on regular, systemic abuses at the U.S. Air Base at Bagram, including the use of “stress and duress” techniques that constitute torture or other cruel, inhuman or degrading treatment. Regarding the interrogation of detainees at the U.S. military base by agents of the Central Intelligence Agency, the article quoted a U.S. government official as saying, “if you don’t violate someone’s human rights some of the time, you probably aren’t

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doing your job.” The same article reported that U.S. military personnel were used to “soften up” detainees for interrogation.
81. In December 2002, two Afghan detainees, Mullah Habibullah and Dilawar, were killed in U.S. custody at the Bagram detention facility while being interrogated by members of the 519th Military Intelligence Battalion. Although U.S. military physicians had concluded that the cause of the detainees’ deaths was homicide, the commander of U.S. military forces in Afghanistan continued to insist publicly that the two detainees had died of natural causes.
82. On December 26, 2002, the nongovernmental organization Human Rights Watch wrote to President Bush and transmitted a copy of the letter to Defendant Rumsfeld, asking that allegations of torture at the Bagram detention facility in Afghanistan be investigated immediately.
83. On January 14, 2003, executive directors of various human rights organizations wrote to Deputy Secretary of Defense Paul Wolfowitz and asked that the United States promulgate clear guidelines to prevent torture. On information and belief, Defendant Rumsfeld received notice of that letter.
84. On February 5, 2003, Amnesty International met with William J. Haynes, the General Counsel of the Department of Defense, to discuss allegations of torture and ill-treatment of detainees in Guantanamo and Afghanistan. On information and belief, the General Counsel of the Department of Defense reports directly to Defendant Rumsfeld.
85. In March 2003, prominent newspapers such as the New York Times, Los Angeles Times, Wall Street Journal, and Atlanta Journal-Constitution published articles on persistent reports of serious human rights violations at detention centers at Guantanamo and in Afghanistan, including deaths of detainees under suspicious circumstances in Afghanistan.

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86. On March 10, 2003, Amnesty International sent a letter to President Bush, with a copy to Defendant Rumsfeld, calling upon the U.S. government to investigate allegations of torture and other abuse at the Bagram detention facility. The letter described specific cases of abuse.
87. Starting in May 2003, the International Committee of the Red Cross began sending reports detailing abuses of detainees in U.S. custody in Iraq to the U.S. Central Command in Qatar. The May 2003 report described 200 allegations of torture and other abuse of detainees by U.S. soldiers. The medical delegate of the International Committee of the Red Cross observed marks on the detainees’ bodies that corroborated the allegations of abuse.
88. General John Abizaid, the commander of the U.S. Central Command, confirmed that his office received the report in May 2003.
89. U.S. Secretary of State Colin Powell confirmed that Defendant Rumsfeld knew of the various reports by the International Committee of the Red Cross, stating that he and Defendant Rumsfeld kept President Bush regularly apprised of their contents throughout 2003.
90. On May 15, 2003, Amnesty International publicized allegations of torture and other abuse of Iraqi detainees by U.S. and British forces, including beatings and electric shocks.
91. On June 23, 2003, Amnesty International sent a letter to Defendant Rumsfeld expressing concern about the death of an Afghan detainee held in U.S. custody.
92. In June 2003, Amnesty International wrote to Ambassador Paul Bremer, who was then the Administrator of the Coalition Provisional Authority governing Iraq, to express its concerns about the treatment of detainees in U.S. custody in Iraq.
93. In early July 2003, the International Committee of the Red Cross sent U.S. military forces in Iraq a working paper detailing approximately 50 allegations of abuse and

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violence against detainees in Iraq. Among the abuses detailed in the report are the following: striking detainees with rifle butts, taking aim at detainees with rifles, slaps, punches, prolonged exposure to the sun, isolation in dark cells, and threats of indefinite detention or detention of family members.
94. On July 15, 2003, the late Sergio Vieira de Mello, then the U.N. High Commissioner for Human Rights, raised concerns regarding the treatment of detainees in U.S. custody with Ambassador Bremer.
95. On information and belief, Ambassador Bremer met with Defendant Rumsfeld in August 2003 and repeatedly urged him to improve conditions in U.S.-controlled detention facilities in Iraq.
96. On July 23, 2003, Amnesty International released a second report criticizing the United States for mistreatment of detainees in Iraq. Allegations included the use of electric shocks, sleep deprivation, and stress positions. Major newspapers, including the New York Times, reported on Amnesty International’s allegations.
97. Defendant Rumsfeld personally visited Abu Ghraib prison on September 6, 2003. His visit to Abu Ghraib coincided with General Miller’s visit, and took place during the period in which abuses were taking place. Photographs depicting Defendant Rumsfeld at the prison and meeting with Brigadier General Karpinski were published in the New York Times. According to an official U.S. military investigation, during the time of Defendant Rumsfeld’s visit, military intelligence personnel at Abu Ghraib were requesting and encouraging military police personnel to abuse detainees in violation of established policies and laws.
98. Approximately one month after the visits of Defendant Rumsfeld and General Miller to Abu Ghraib, from October 9 through 12 and October 21 through 23, 2003, the

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International Committee of the Red Cross visited Abu Ghraib and determined that detainees in U.S. custody were being subjected to “physical and psychological coercion” which was in some cases “tantamount to torture.” The abuses witnessed by the International Committee of the Red Cross included: threats, sleep deprivation, tight handcuffs that caused lesions and wounds, and holding of detainees in total darkness in bare concrete cells, while completely naked. U.S. military personnel told representatives of the International Committee of the Red Cross that such treatment was “part of the process.” During this visit, the International Committee of the Red Cross found that detainees at Abu Ghraib had physical signs of injury and psychological symptoms such as suicidal tendencies, memory loss, and acute anxiety reactions.
99. The International Committee of the Red Cross conveyed its concerns to U.S. military commanders in Iraq through reports and briefings in October and November 2003. Brigadier General Karpinski, Colonel Pappas and Lieutenant General Sanchez were notified of the details of abuse by the Red Cross by November 2003. Brigadier General Karpinski and Colonel Pappas received at least one written report of torture and other abuses from the International Committee of the Red Cross during that time period.
100. In response to the International Committee of the Red Cross’s oral and written reports of torture and other unlawful abuses in October and November 2003, Colonel Pappas revoked the International Committee of the Red Cross’s access to interrogation areas and denied the International Committee of the Red Cross’s requests to interview specified detainees. Lieutenant General Sanchez’s staff approved those denials of access. Lieutenant General Sanchez, Brigadier General Karpinski and Colonel Pappas did not do anything to stop the torture and other unlawful abuses.

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101. Brigadier General Karpinski responded to the International Committee of the Red Cross November 2003 report in a letter dated December 24, 2003. According to an official investigative report by Major General George Fay (the “Fay Report”), Brigadier General Karpinski’s response “gloss[ed] over, close to the point of denying[,] the inhumane treatment, humiliation, and abuse identified by the [International Committee of the Red Cross].”
102. On November 12, 2003, the Lawyers Committee for Human Rights (now known as Human Rights First) wrote to the commander of U.S. forces in Afghanistan and transmitted a copy to Defendant Rumsfeld requesting information about the current status of military investigations into the deaths of three detainees who died in U.S. custody in Afghanistan.
103. On information and belief, on November 14, 2003, Amnesty International wrote a letter to Defendant Rumsfeld concerning reports of abuse of Iraqi detainees by the U.S. military.
104. In December 2003, Colonel Stuart Herrington of the U.S. Army submitted an investigative report (the “Herrington Report”) to Major General Barbara Fast, a high-level military intelligence commander in Iraq who reported directly to Lieutenant General Sanchez. Herrington reported details of abuses committed against detainees in Iraq by a joint task force of military Special Operations and Central Intelligence Agency officers, known as Task Force 121. Herrington reported that military medical personnel found the detainees showed signs of having been beaten. Herrington concluded in his December 2003 report: “It seems clear that TF 121 needs to be reined in with respect to its treatment of detainees.” Herrington further reported that TF 121 had detained the family members of suspects and refused to release the family members until the suspects turned themselves in – a practice Herrington described as “having a ‘hostage’ feel.” On information and belief, Lieutenant General Sanchez received the December 2003 Herrington report and forwarded it to his superior officers.

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105. On January 13, 2004, a U.S. soldier stationed at Abu Ghraib gave Army criminal investigators a copy of a CD containing photographs depicting individuals under Defendant Rumsfeld’s actual and effective command engaging in gross acts of torture or other cruel, inhuman or degrading treatment.
106. Defendant Rumsfeld and Lieutenant General Sanchez were notified of the photographs.
107. On January 16, 2004, the U.S. Army released a five-sentence press release acknowledging allegations of detainee abuse in Iraq.
108. In February 2004, the International Committee of the Red Cross issued an exhaustive report of torture and abuse at U.S. detention facilities in Iraq. On information and belief, Defendant Rumsfeld knew of this report by mid-February 2004. During that time period, Defendant Rumsfeld informed President Bush that the Department of Defense was investigating allegations of detainee mistreatment in Iraq.
109. In late February or early March 2004, Army Major General Antonio Taguba provided an investigative report (the “Taguba Report”), detailing torture in Abu Ghraib, to Lieutenant General Sanchez. On information and belief, Defendant Rumsfeld received the Taguba Report shortly after it was completed.
110. General John Abizaid, commander of the U.S. Central Command encompassing Iraq and Afghanistan, admitted in testimony before the Senate Armed Services Committee on May 19, 2004, that “we should have known. And we should have uncovered it and taken action before it [abuse of detainees] got to the point that it got to. I think there’s no doubt about that.”
111. According to an official investigative report by Army Lieutenant General Anthony Jones (the “Jones Report”), the following “indications and warnings” informed

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Lieutenant General Sanchez’s command of detainee abuse at Abu Ghraib and other detention facilities in Iraq: “the investigation of an incident at Camp Cropper, [International Committee of the Red Cross] reports on handling of detainees in subordinate units, [International Committee of the Red Cross] reports on Abu Ghraib detainee conditions and treatment, [Army Criminal Investigations Command] investigations and disciplinary actions being taken by commanders, the death of an OGA detainee at Abu Ghraib, the lack of an adequate system for identification and accountability of detainees, and division commanders’ continual concerns that intelligence information was not returning to the tactical level once detainees were evacuated to the central holding facility.”
112. The report of an official investigation headed by former Secretary of Defense James Schlesinger (the “Schlesinger Report”) also states that Brigadier General Karpinski and Colonel Pappas “knew, or should have known, abuses were taking place and taken measures to prevent them.”
113. A military lawyer for an enlisted soldier charged with the abuse of detainees stated in court that his client told him that Lieutenant General Sanchez was personally present at Abu Ghraib during interrogations and may have witnessed abuse.
114. On information and belief, Colonel Pappas was frequently present at Abu Ghraib during relevant time periods, resided at the Abu Ghraib facility for some period of time, and was present in a cellblock at Abu Ghraib on the night that a detainee was killed during interrogation.
115. On information and belief, numerous additional reports and documents of the International Committee of the Red Cross and the U.S. military as well as other sources of information document the abuse and torture of detainees in U.S. military custody in Guantanamo, Afghanistan and Iraq. On information and belief, Defendant Rumsfeld has

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personal knowledge of the content of additional documents and reports documenting abuse and torture of detainees in Guantanamo, Afghanistan and Iraq.
116. As set forth above, Defendant Rumsfeld and others under his command were well aware of the widespread torture and other cruel, inhuman or degrading treatment of detainees in U.S. custody as early as 2002 and throughout the period before the public disclosure in the spring of 2004 of specific abuses at Abu Ghraib. However, Defendant Rumsfeld did not take steps to stop or prevent torture and other abuses until after the public outcry regarding abuses at Abu Ghraib. It was only then that Defendant Rumsfeld made some public statements critical of the abuses and some measures were taken against a few individuals. These measures were not only too late in coming, but also inadequate, as set forth below.
3. Defendant’s Failure to Act upon Knowledge to End Torture and Abuse of Detainees
117. Defendant Rumsfeld and others under his command did not take reasonable and necessary steps at any stage to ensure that no further abuses would occur. As a proximate result, Plaintiffs were tortured and subjected to other cruel, inhuman or degrading treatment while detained in U.S. military facilities.
118. The official report by U.S. Army Major General George Fay found that “inadequate interrogation doctrine and training, and acute shortage of MP [military police] and MI [military intelligence] [s]oldiers, the lack of clear lines of responsibility between the MP and MI chains of command, the lack of a clear interrogation policy for the Iraq Campaign, and intense pressure felt by the personnel on the ground to produce actionable intelligence from detainees” resulted in the abuse of detainees in Iraq.
119. As documented in numerous official U.S. government reports, from the outset of and throughout the military actions in Afghanistan and Iraq, Defendant Rumsfeld knowingly

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failed to provide for adequate training of U.S. military personnel charged with the detention and interrogation of detainees. Despite receiving notice of the torture or other cruel, inhuman or degrading treatment that ensued, Defendant Rumsfeld failed to take any steps to correct his initial failure to train subordinates in the proper treatment of detainees. Defendant Rumsfeld knew and should have known that this lack of adequate training, combined with his other policies and practices, would lead to the further torture or other cruel, inhuman or degrading treatment of detainees in U.S. custody.
120. Defendant Rumsfeld and others under his command continued to put untrained personnel in charge of detainees, after receiving notice that these untrained personnel were torturing and otherwise abusing detainees. The Taguba Report found that “there is no evidence that the command, although aware of these deficiencies [in training], attempted to correct them in any systemic manner other than ad hoc training by individuals with civilian corrections experience.”
121. Defendant Rumsfeld and others under his command also failed to take sufficient and meaningful measures to discipline subordinates who committed torture or other cruel, inhuman or degrading treatment against detainees. Rather than taking timely and effective actions, Defendant Rumsfeld expanded or maintained the authority of these subordinates to use harsh measures against detainees, even though he knew and should have known that these subordinates previously had allowed, authorized or committed torture or abuse.
122. Superior officers and commanders, including Defendant Rumsfeld, failed to discipline Captain Wood in connection with the two murders committed in Afghanistan by personnel under her command in the 519th Military Intelligence Battalion. Instead, within

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weeks of the murders, Wood was awarded the first of two Bronze Star medals for “exceptionally meritorious service.”
123. Also, in lieu of discipline, Wood and her subordinates were assigned to interrogation duty in Iraq, including Abu Ghraib, where predictably they continued to torture and otherwise abuse detainees. On information and belief, none of the members of the 519th Military Intelligence Battalion were disciplined prior to the battalion’s redeployment to Iraq. Wood’s reassignment, along with “word of mouth,” meant that the same techniques used on detainees in Afghanistan were put into effect in Iraq. The list of interrogation techniques Wood proposed to Lieutenant General Sanchez, which his staff approved, were “a near copy of” techniques used by her unit in Afghanistan.
124. Upon information and belief, no charges were brought against any members of the 519th Military Intelligence Battalion who were involved in the homicides at the Bagram detention facility until August 2004, when one Army sergeant was charged in connection with the torture and murder of the two Afghan detainees.
125. The refusal of Defendant Rumsfeld and others to take timely action against U.S. military personnel responsible for the deaths of the two Afghan detainees resulted in further torture and other abuse. A third Afghan detainee was tortured to death in March 2003, several months after the first two died in U.S. custody.
126. In May 2003, soldiers commanded by Colonel Jerry Phillabaum, an officer under the command of Brigadier General Karpinski and Lieutenant General Sanchez, tortured detainees at the Camp Bucca facility. Brigadier General Karpinski was aware of the conduct of Phillabaum’s soldiers. Neither she nor Lieutenant General Sanchez punished Phillabaum. Instead, Brigadier General Karpinski and Lieutenant General Sanchez placed Colonel

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Phillabaum in command of the Abu Ghraib prison, where soldiers under his command again tortured and otherwise abused detainees.
127. The soldiers in Colonel Phillabaum’s command who tortured and abused detainees at Camp Bucca in May 2003 were given extremely light sanctions. The most severe was a “less-than-honorable discharge.” As Brigadier General Karpinski admitted, the inconsequential sanctions “communicated to the soldiers, the worst that’s gonna happen is, you’re gonna go home.”
128. By at least November 2003, Lieutenant General Sanchez knew and should have known that soldiers under the command of Brigadier General Karpinski and Colonel Phillabaum again had tortured detainees, this time at Abu Ghraib. The Taguba Report described Colonel Phillabaum’s battalion as “the most troubled battalion guarding, by far, the largest number of detainees in the 800th MP [military police] Brigade.” However, Lieutenant General Sanchez took no action against Brigadier General Karpinski and Colonel Phillabaum until he suspended Phillabaum’s command on January 17, 2004, about eight months after receiving notice of torture committed by Phillabaum’s soldiers. Lieutenant General Sanchez issued a formal admonishment to Brigadier General Karpinski on January 17, 2004, but left her in command of all detainee operations in Iraq until the torture and other abuses at Abu Ghraib were publicly exposed in the media in May 2004.
129. Documents produced by the Department of Defense in litigation under the Freedom of Information Act, see American Civil Liberties Union Foundation, et al. v. Dep’t of Defense, et al., No. 04-cv-4151 (AKH) (S.D.N.Y. 2004), demonstrate that Defendant Rumsfeld and others under his command failed to investigate detainee deaths adequately and failed to punish soldiers responsible for deaths. For example, on September 11, 2003, a U.S. soldier shot

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and killed an Iraqi detainee under suspicious circumstances. The Army Criminal Investigations Command did not receive a report on the shooting until September 15, 2003. During the intervening time, the crime scene was significantly altered, the weapon and bullet had not been collected, and no autopsy was conducted. Although the Army Criminal Investigations Command determined that probable cause existed for a murder charge, it was too late. The Army held a hearing under Article 32 of the Uniform Code of Military Justice to determine whether there was cause to charge the soldier with voluntary manslaughter. The result was a decision not to prosecute. The soldier had received a reduction in rank and was discharged from the Army before the Criminal Investigations Command’s investigation was concluded.
130. The documents obtained through the Freedom of Information Act further reveal that in November 2003, the Army Criminal Investigations Command at Fort Stewart, Georgia, received a U.S. soldier’s sworn statement that he had observed “war crimes” by U.S. military personnel against detainees in Iraq and that his “chain of command did nothing to stop these war crimes and allowed them to happen.” Among other things, the soldier stated that detainees were forced to stay outdoors in extremely hot weather for up to 12 hours, with their hands bound so tightly behind their backs that their hands turned purple. The soldier also stated that U.S. military personnel drove a Bradley fighting vehicle toward detainees in order to “spook” them. The Criminal Investigations Command closed its investigation on the purported ground that “a thorough investigation failed to produce any logical subjects and there is no serious injury, and ... furtherance of the investigation would be of little or no value or leads remaining to be developed are not significant.”
131. Defendant Rumsfeld has also failed and continues to fail in his duty to investigate the responsibility of high-level commanders and civilian officials for the torture or other cruel,

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inhuman or degrading treatment of detainees. Although Defendant Rumsfeld and Lieutenant General Sanchez ordered investigations into the torture of prisoners, they knowingly limited those investigations in a manner that precluded finding wrongdoing by or assigning responsibility to high-ranking civilian or military commanders or officials, including themselves.
132. Despite having notice of torture or other cruel, inhuman or degrading treatment at multiple detention facilities throughout Iraq, Lieutenant General Sanchez ordered Generals Fay and Taguba to investigate torture only in relation to Abu Ghraib and only in relation to certain brigades and for certain time periods. Lieutenant General Sanchez thus intentionally and knowingly avoided a meaningful and thorough inquiry into the knowledge and conduct of higher-level officials, as well as an investigation into the widespread nature of torture in Iraq. Defendant Rumsfeld knew of and acquiesced in or approved of Lieutenant General Sanchez’s actions.
133. Official reports by Army investigators Generals Taguba, Jones and Fay concluded that Brigadier General Karpinski and Colonel Pappas, among others, were responsible for the abuses at Abu Ghraib through their failures of leadership. However, Defendant Rumsfeld and Lieutenant General Sanchez have failed to bring charges against anyone other than soldiers who personally tortured or otherwise abused detainees, despite having information that those soldiers acted at the direction of superior officers.
134. Although the U.S. military has taken some steps to punish personnel who committed homicide, torture or other cruel, inhuman or degrading treatment, those steps began primarily after media attention to the Abu Ghraib scandal in May 2004, which was far too late to prevent the torture or other cruel, inhuman or degrading treatment inflicted on Plaintiffs.

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135. In March 2004, approximately two months after Defendant Rumsfeld and highranking commanders in Iraq under his command came into possession of photographs of torture at Abu Ghraib but before those photographs became public, a detainee in U.S. custody in Mosul, Iraq, stated that he had been tortured by U.S. personnel. According to government documents produced under in litigation under the Freedom of Information Act, the detainee stated that U.S. personnel bent his thumb backwards, kicked him, hit him in the neck with the butt of a gun, deprived him of sleep, slammed his head against a wall, and repeatedly burned him with hot liquids and a lamp. A U.S. Army noncommissioned officer stated that he believed Navy SEALs might have physically abused the detainee and a U.S. military medical screening record reflected that the detainee had second-degree burns and singed tissue on his body. The Criminal Investigations Command nonetheless concluded that there was insufficient evidence to prove or disprove the detainee’s statements, and it ended its investigation.
136. Other belated steps have been inadequate to stop the abuse of detainees, as demonstrated by the continued torture or other cruel, inhuman or degrading treatment of detainees disclosed in documents produced pursuant to litigation under the Freedom of Information Act.
137. For example, the Freedom of Information Act documents reveal that prior to June 25, 2004, officers of the Defense Intelligence Agency witnessed members of a U.S. military unit known as Task Force 626 punching a detainee in the face “to the point that the individual needed medical attention.” The Defense Intelligence Agency officers also observed that detainees arriving at a temporary detention facility in Baghdad had bruises and burn marks on their backs. When task force members learned that a Defense Intelligence Agency officer had photographed some detainees’ injuries, the task force members confiscated the photographs and

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threatened the officer. Task force members also seized the Defense Intelligence Agency officers’ vehicle keys and ordered them not to leave the U.S. military compound. On information and belief, Defendant Rumsfeld was aware of the activities of Task Force 626 because he had established and directed activities of an intelligence-gathering unit that worked closely with Task Force 626.
138. The Freedom of Information Act documents further reveal that on or about May 11, 2004, a Defense Intelligence Agency officer witnessed detainees in Baghdad, Iraq, being abused by U.S. military personnel during an interrogation. The officer witnessed four or five non-interrogator military personnel enter the interrogation room and begin slapping the detainee as he was attempting to answer questions.
C. Consequences of Defendant’s Conduct 1. Defendant’s Policies, Patterns or Practices Resulted in Widespread Torture and Abuse of Detainees in Afghanistan and Iraq
139. On information and belief, the U.S. military has detained and continues to detain individuals at approximately 22 locations in Afghanistan, including facilities in Asadabad, Kabul, Jalalabad, and Khost under the control of the U.S. military.
140. As a result of Defendant Rumsfeld’s policies, patterns or practices, the torture and abuse of detainees in U.S. military custody in Afghanistan has been widespread and systemic. It began soon after the commencement of military actions and has lasted well beyond the declared end of major combat.
141. In December 2001, John Walker Lindh, a U.S. citizen, was arrested and detained by the U.S military in Afghanistan. Photographs taken at the time of his arrest show him emaciated, stripped naked, and bound to a stretcher.

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142. In January 2002, U.S. soldiers detained a number of Afghan men for more than two weeks following a nighttime raid on a village, during which time the detainees were beaten and kicked. Upon their release, a spokesman for the U.S. Defense Department admitted that the detainees had not been part of the Taliban or Al Qaeda.
143. As widely documented in press reports, U.S. military personnel have subjected detainees in U.S. custody in Afghanistan to the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. Extreme physical abuse: Soldiers severely beat detainees, forced them into painful and contorted positions for hours or days on end, and dumped cold water over detainees in the middle of the winter. Beatings were for the specific purpose of making detainees more susceptible to interrogation.
b. Sexual abuse and humiliation: Detainees were kept naked for prolonged periods in the presence of male and female soldiers and in front of other detainees. Soldiers, both male and female, subjected detainees to sexual taunts, with knowledge that such treatment would be particularly offensive and humiliating by Afghan cultural norms.
c. Use of dogs to frighten and intimidate detainees. d. Sensory deprivation: Detainees were kept hooded or goggled, held in dark
cells, and kept in isolation for prolonged periods. e. Sleep deprivation: Detainees were forced to stay awake for prolonged
periods by methods such as shining bright lights, blaring loud music, shouting at them or beating them if they fell asleep.

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144. Detainees have been killed by torture or other cruel, inhuman or degrading treatment while in U.S. custody in Afghanistan. For example:
a. According to documents produced by the Defense Department pursuant to litigation under the Freedom of Information Act, the Army Criminal Investigation Command concluded in September 2002 that a U.S. Army captain and three noncommissioned officers murdered a detainee in Afghanistan.
b. Two other Afghan detainees, Mullah Habibullah and Dilawar, died in December 2002 at the Bagram detention facility in Afghanistan while in the custody of the U.S. military. During interrogation by members of the U.S. Army’s 519th Military Intelligence Battalion, the detainees were shackled to the ceiling with their hands suspended over their shoulders for prolonged periods. Both had suffered blunt force trauma to the legs, and investigators determined that they had been beaten by multiple soldiers. Military pathologists determined within days of the deaths that the cause was homicide. Nevertheless, for months afterwards, and until the New York Times obtained a copy of Dilawar’s autopsy report, the military falsely asserted that the men had died of natural causes.
c. Another detainee, Jamal Naseer, died at a U.S. firebase in Gardez after being tortured and abused while in U.S. custody. Naseer and seven other members of the Afghan Army were arrested in March 2003; they were detained by U.S. forces and interrogated at Gardez for 17 days. The detainees were beaten regularly by U.S. interrogators, some reportedly

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while shackled or while suspended upside down. Some were subjected to electric shocks and immersion in cold water. They were denied medical treatment for the injuries they received. 145. On information and belief, multiple other detainees have died while in U.S. military custody in Afghanistan under circumstances suggesting the cause of death was homicide. 146. The U.S. Army Criminal Investigations Command determined that members of the 377th Military Police Battalion and military intelligence officers based in Fort Bragg, North Carolina (apparently referring to the 519th Military Intelligence Battalion) committed abuses against detainees in Afghanistan, including the following: slamming detainees into walls, twisting handcuffs to cause pain, kneeing detainees, forcing a detainee to maintain painful, contorted positions, shackling a detainee’s arms to the ceiling, and forcing water into the mouth of a detainee until he could not breathe. 147. On information and belief, the U.S. military has detained and continues to detain individuals at numerous detention facilities in Iraq under the control of the U.S. military. The policies, patterns or practices of torture and abuse of detainees that commenced in Afghanistan were extended and used against detainees in Iraq as a result of the actions and derelictions of Defendant Rumsfeld. 148. The U.S. government, the International Committee of the Red Cross, and nongovernmental human rights organizations have documented hundreds of cases of abuse committed at U.S. detention facilities in Iraq. 149. These reports demonstrate that detainees in facilities under the exclusive control of the U.S. military have been subjected to torture or other cruel, inhuman or degrading treatment

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on a widespread basis in Iraq. U.S. personnel have engaged in this unlawful conduct at facilities including but not limited to the notorious Abu Ghraib prison; the detention facility known as “Camp Cropper” at the Baghdad international airport; a facility near the city of Umm Qasr known as Camp Bucca; facilities in or near the cities of Tikrit and Mosul; and numerous locations in or near the city of Baghdad.
150. According to reports by the U.S. military, the International Committee of the Red Cross, and other non-governmental human rights organizations, and as revealed in voluminous documents produced by the government pursuant to litigation under the Freedom of Information Act, U.S. personnel inflicted the following types of torture or other cruel, inhuman or degrading treatment, among others, on detainees at numerous U.S. facilities in Iraq:
a. Extreme physical abuse: Soldiers tore out detainees’ toenails, administered electric shocks, beat detainees with hard objects (including pistols and rifles), slapped and punched detainees, kicked them with knees or feet on various parts of the body (legs, sides, lower back, groin), forcefully pressed detainees’ faces into the ground by stepping on their heads, purposely exposed detainees to severe heat and sun for prolonged periods, and forced detainees to stay in “stress” positions (kneeling, squatting, standing with arms raised over their heads) for hours at a time.
b. Various forms of sexual abuse and humiliation: Detainees were stripped naked and forced to stand for prolonged periods in public view, with arms raised or with women’s underwear over their heads, while male and female guards observed and laughed. Detainees were photographed in these positions. Detainees were paraded naked in front of other detainees.

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Detainees were kept naked in solitary confinement for periods of several days. c. Threats of death, abuse, reprisals against family members, imminent execution or transfer to the military detention facility at Guantanamo: Soldiers aimed rifles at detainees, sometimes putting firearms directly against detainees’ heads or torsos. d. Sensory deprivation: Hooding detainees to prevent them from seeing, to disorient them, and to prevent them from breathing freely. Hooding was sometimes used in conjunction with beatings, thus increasing fear because blows were unanticipated. The practice of hooding also allowed the interrogators to remain anonymous and thus to act with impunity. Detainees were also held in total darkness for prolonged periods. e. Painful and humiliating restraints: Soldiers applied flexi-cuffs to detainees’ wrists so tightly and for such extended periods that they caused skin lesions and long-term nerve damage. Soldiers restrained detainees repeatedly over periods of several days, for several hours each time, with handcuffs to the bars of their cell doors in humiliating (i.e. naked or in underwear) and/or uncomfortable positions causing physical pain. 151. Official U.S. military reports have documented the notorious abuses at Abu Ghraib prison, among other detention facilities. These reports determined that soldiers inflicted the following torture or other cruel, inhuman or degrading treatment on detainees at Abu Ghraib: a. Homicide: A Navy SEAL beat a detainee to death. He struck the detainee in the head with a rifle butt. After the detainee lost consciousness, he was

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placed in a shower room with a sandbag over his head, and, when guards returned 30-45 minutes later, he was dead. b. Extreme physical abuse: Soldiers punched, kicked and slapped detainees. A soldier knocked a detainee unconscious, and another punched a second detainee in the chest so hard that he could not breathe. Soldiers beat detainees with a broom handle and a chair. Soldiers broke chemical lights and poured the contents on detainees. A soldier slammed a detainee against a wall so hard that he required stitches, and then an ordinary military police guard was permitted to stitch the wound. A detainee was forced to “bark like a dog” and crawl on his stomach while military police personnel spit and urinated on him and beat him until he lost consciousness. c. Sexual abuse and humiliation: Soldiers threatened to rape detainees. An interpreter allegedly raped a juvenile male detainee while a female U.S. soldier watched and took pictures. Soldiers forced a naked detainee to stand on a box with a sandbag on his head, and attached wires to his fingers, toes and penis to simulate electric torture. Soldiers stripped detainees naked and kept them naked for prolonged periods. Soldiers photographed and videotaped naked detainees, sometimes while forcibly posed in sexual positions, forcibly dressed in women’s underwear, or forced to masturbate. Soldiers arranged naked detainees in a pile and then jumped on them. Soldiers placed a dog leash around a naked male detainee’s neck, posed a female soldier next to him and photographed him.

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d. Use of military dogs to intimidate and attack detainees: In at least one case, soldiers caused a dog to bite and severely injure a detainee. Some soldiers referred to the use of dogs to frighten or attack detainees as “doggy dance” sessions. On one occasion, soldiers placed vicious dogs into a cell with two juvenile detainees. Witnesses reported that the children screamed in terror as the dogs lunged and snapped at them, and that the younger child tried to hide behind the older one. On another occasion, two military dog handlers held a “contest” in which they competed against each other to see who could force detainees to lose control of their bladders or bowels out of fear.
e. Sensory deprivation: Soldiers kept detainees in solitary confinement, sometimes in empty concrete cells in total darkness.
152. In reports presented to U.S. government officials and military commanders, the International Committee of the Red Cross documented hundreds of additional individual allegations of abuse committed at U.S. military detention facilities throughout Iraq. Fifty incidents of torture and other abuse were reported as occurring at the Camp Cropper detention facility alone. Among the “illustrative” cases of torture reported by the International Committee of the Red Cross are the following:
a. At least two detainees were forced to sit or lie down on blistering surfaces, causing severe burns that resulted in large crusted lesions and, in one case, three months’ hospitalization, the amputation of a finger and large skin grafts.

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b. Military interrogators hooded and restrained a detainee with flexi-cuffs, threatened to torture and kill him, urinated on him, kicked him in the head, lower back and groin, force-fed him a baseball which was tied into his mouth, and deprived him of sleep for four consecutive days. When the detainee said he would report the abuse to the International Committee of the Red Cross, interrogators beat him again.
2. Plaintiffs Injured in Afghanistan and Iraq By Defendant’s Actions and Derelictions
153. Plaintiffs Ahmad, Siddiqi, Shirullah and Abdul Rahman (“Afghanistan Detainee Plaintiffs”) and Plaintiffs Arkan M. Ali, Sabbar, Khalid and Ali H. (“Iraq Detainee Plaintiffs”) are among the countless detainees who were tortured and otherwise abused at U.S. military facilities in Afghanistan and Iraq as a result of the Defendant’s policy, pattern or practice of torture or other cruel, inhuman or degrading treatment. The Plaintiffs are and were noncombatant innocent civilians who pose no threat to the United States, were not engaged in hostilities against the United States, were not prosecuted for criminal violations and were released from custody by the U.S. military after being brutally abused and tortured.
a. Mehboob Ahmad 154. Plaintiff Mehboob Ahmad was detained by U.S. military forces from approximately June to November 2003. Plaintiff Ahmad was detained in U.S. custody at various locations in Afghanistan, including the Gardez firebase and the Bagram air base. 155. For the purpose of causing severe pain and injuring, interrogating, intimidating, degrading and abusing him while he was in U.S. military custody, care and control, Defendant Rumsfeld’s subordinates subjected Plaintiff Ahmad to the following forms of torture or other cruel, inhuman or degrading treatment, among others:

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a. Subjecting Plaintiff Ahmad to abusive and painful positions for several hours at a time during nightly interrogations, in order to humiliate him and cause severe pain. These abusive positions included: (1) hanging him upside-down from the ceiling with a chain; (2) hanging him by his arms with a chain; (3) forcing him to kneel on a wooden pole, cuffing his hands and forcing them to be raised to the ceiling with a chain, and repeatedly pushing and kicking him;
b. Sexually assaulting, taunting and humiliating Plaintiff Ahmad by forcing him to strip and stay naked for lengthy periods of time; stripping and anally probing him; and having interrogators direct insults at his mother, wife, and sister and imply that the soldiers would rape his wife;
c. Threatening Plaintiff Ahmad with transport to Guantanamo; d. Intimidating and threatening Plaintiff Ahmad with a snarling and barking
dog at close range; e. Causing pain and fear by forcing Plaintiff Ahmad to drink twelve half-liter
bottles of water in five minutes; f. Subjecting Plaintiff Ahmad to extreme sensory deprivation for the purpose
of degrading and dehumanizing him by forcing him to wear black, opaque goggles almost continuously for the entire first month of his detention and for a period of several days’ duration thereafter, and by applying soundblocking earphones; g. Detaining Plaintiff Ahmad outdoors for weeks with no protection from the elements; and

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h. Forbidding Plaintiff Ahmad to speak with other detainees for the entire time he was detained, approximately five months, for the purpose of dehumanizing and degrading him.
156. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Ahmad suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he suffers from leg pain and he sometimes cannot move his limbs when he awakes from sleep.
b. Said Nabi Siddiqi 157. Plaintiff Said Nabi Siddiqi was detained by U.S. military forces in Afghanistan from approximately July to August 2003. Plaintiff Siddiqi was detained at various locations in Afghanistan, including the Gardez firebase, the Kandahar airfield, and the Bagram air base. 158. For the purpose of causing severe pain and injuring, interrogating, intimidating, degrading and abusing him while he was in U.S. military custody, care and control, Defendant Rumsfeld’s subordinates subjected Plaintiff Siddiqi to the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. Subjecting Plaintiff Siddiqi to painful and abusive positions for long periods during interrogations, including forcing him to hold a 15-pound piece of wood in his cuffed hands, forcing him to maintain a pushup position while dousing him with water, beating him if he did not maintain the positions, kicking and poking him during interrogations, flashing bright lights into his eyes and yelling directly into his ears at top volume;
b. Sexually humiliating and assaulting Plaintiff Siddiqi by stripping him naked, photographing him naked, probing his anus, and during interrogations, by making animal sounds and demanding to know which

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animals he had sex with and by repeatedly telling him that his wife was a slut and his daughter was a street beggar; c. Causing extreme thirst by denying Plaintiff Siddiqi water for a prolonged period of time; d. Throwing stones and other objects at Plaintiff Siddiqi and other detainees while they used an open bucket toilet, and forcing Plaintiff Siddiqi and others to expose themselves publicly with knowledge that this would cause extreme humiliation and degradation by Afghan cultural norms; e. Subjecting Plaintiff Siddiqi to sleep deprivation for lengthy periods by throwing stones at him and other detainees all night in order to keep them from sleeping and by awakening them during the night, forcing them to roll around, dousing them with water and verbally abusing them, all for the purpose of dehumanizing and disorienting them; f. Interrogating Plaintiff Siddiqi every night for approximately two weeks, keeping him handcuffed and blindfolded for that entire period of time; g. Detaining Plaintiff Siddiqi for weeks in an outdoor area with no protection from the elements and extreme weather, for the purpose of dehumanizing him; h. Acting with deliberate indifference to Plaintiff Siddiqi’s medical needs and health, confiscating his asthma inhaler, and detaining him in a room flooded with water. 159. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Siddiqi suffered severe physical and psychological injuries. He continues to

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suffer the lasting effects of those injuries. Among other things, he has had depression, thoughts of suicide and nightmares, is quick to anger, and has suffered from memory loss.
c. Mohammed Karim Shirullah 160. Plaintiff Mohammed Karim Shirullah was incarcerated by U.S. military forces in Afghanistan from approximately December 2003 to June 2004. Plaintiff Shirullah was detained at various locations in Afghanistan, including the Gardez firebase and the Bagram air base. 161. For the purpose of causing severe pain and injuring, interrogating, intimidating, degrading and abusing him while he was in U.S. military custody, care and control, Defendant Rumsfeld’s subordinates subjected Plaintiff Shirullah to the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. Punching and kicking Plaintiff Shirullah in the head during interrogation so fiercely and repeatedly that he fell to the ground repeatedly and that the blows ruptured his right eardrum;
b. Stripping Plaintiff Shirullah naked and throwing water on him during interrogation;
c. Intentionally dehumanizing Plaintiff Shirullah by subjecting him to sensory deprivation by forcing him to wear black, opaque goggles and wrist restraints for a period of more than two weeks, and by subjecting him to solitary confinement in a room with no windows for over one month;
d. Humiliating Plaintiff Shirullah and causing pain by forcing him to maintain painful and contorted positions, including forcing him to maintain his arms in a “T” position for one hour, and forcing him to sit in

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a very small space with no back support for six hours with his wrists and legs tied and his eyes and ears covered; e. Sexually humiliating Plaintiff Shirullah by stripping him naked, probing his anus and photographing him while he was naked, and forcing him to use an open toilet, with knowledge that such treatment would cause extreme psychological suffering by Afghan cultural norms; f. Failing to treat the injury that U.S. personnel caused to Plaintiff Shirullah’s ear while beating him; and g. Dehumanizing Plaintiff Shirullah by forbidding him to speak with other detainees for the entire time that he was detained, approximately six months. 162. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Shirullah suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he is deaf in his right ear, and his legs swell painfully. He cannot sleep through the night without medication. d. Haji Abdul Rahman 163. Plaintiff Haji Abdul Rahman was incarcerated by U.S. military forces in Afghanistan from approximately December 2003 to May 2004. Plaintiff Abdul Rahman was detained in various locations in Afghanistan, including the Gardez firebase and the Bagram air base. 164. For the purpose of causing severe pain and injuring, interrogating, intimidating, degrading and abusing him while he was in U.S. military custody, care and control, Defendant Rumsfeld’s subordinates subjected Plaintiff Abdul Rahman to the following forms of torture or other cruel, inhuman or degrading treatment, among others:

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a. Subjecting Plaintiff Abdul Rahman to interrogation while forcing him to kneel with his hands cuffed behind his back and with blackout goggles on, placing a chain or other object through the handcuffs and repeatedly jerking on it to pull his arms and wrench his shoulders and wrists to cause extreme fear, intimidation and pain;
b. Sexually assaulting and humiliating Plaintiff Abdul Rahman by forcing him to strip naked in front of other people and anally probing him on multiple occasions, and by placing blackout goggles over his eyes, and photographing him while he was naked;
c. Subjecting Plaintiff Abdul Rahman to extreme restraints, blackout goggles and handcuffs for virtually the entire first month of his detention; subsequently placing him in blackout goggles and sound-deadening headphones and subjecting him to solitary confinement for 15 days for no reason other than to intimidate, humiliate, degrade and abuse him;
d. Subjecting Plaintiff Abdul Rahman to sleep deprivation by detaining him in brightly-lit areas for approximately three months and by making loud noises to keep him and other detainees awake and to dehumanize them and to disorient them as to the passage of time; and
e. Threatening to transport him to Guantanamo. 165. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Abdul Rahman suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he suffers great pain and sometimes loss of sensation and near-paralysis in his leg and back. He suffers vision

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problems and memory lapses. He has emotional problems and is quick to anger, which has caused difficulties with his family and work.
e. Arkan M. Ali 166. Plaintiff Arkan M. Ali was detained by U.S. military forces in Iraq for approximately 11 months, from approximately July 2003 to June 2004. Plaintiff Arkan M. Ali was detained at various locations in Iraq, including a civil defense station in Baghdad, a military prison at the Baghdad international airport, Camp Bucca, and the Abu Ghraib prison. 167. For the purpose of causing severe pain and injuring, interrogating, intimidating, degrading and abusing him while he was in U.S. military custody, care and control, Defendant Rumsfeld’s subordinates subjected Plaintiff Arkan M. Ali to the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. Subjecting Plaintiff Arkan M. Ali to severe beatings by groups of military personnel throughout his eleven months in U.S. custody, including twice beating him to unconsciousness during interrogation, using hands, feet, chains and weapons;
b. Forcibly restraining Plaintiff Arkan M. Ali and using a large knife to repeatedly stab and slice his forearm causing extreme pain, bleeding and scarring;
c. Burning or shocking Plaintiff Arkan M. Ali’s forearm with a small metal device;
d. Subjecting Plaintiff Arkan M. Ali to prolonged sensory and sleep deprivation;

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e. Repeatedly locking Plaintiff Arkan M. Ali for several days in a wooden coffin-like box, sometimes after stripping him naked and tying a hood over his head;
f. Urinating on Plaintiff Arkan M. Ali intentionally to humiliate and degrade him;
g. Detaining Plaintiff Arkan M. Ali in a “silent tent” for days at a time, during which he was denied sleep and dragged face-down along the ground and severely beaten by soldiers whenever it appeared he might be falling asleep;
h. Subjecting Plaintiff Arkan M. Ali to multiple death threats, including but not limited to the following: threats to transfer him to Guantanamo where he was told soldiers could kill detainees with impunity; mock executions by threatening to run Plaintiff Arkan M. Ali and other detainees down with a large military vehicle; brandishing guns and threatening to shoot Plaintiff Arkan M. Ali and other detainees; approaching Plaintiff Arkan M. Ali with a sword and threatening to slaughter him;
i. Falsely telling Plaintiff Arkan M. Ali and other detainees during transport between prisons that they were being taken to another country, in order to terrorize and disorient them and to lead them to believe that they would never see their families again;
j. Denying Plaintiff Arkan M. Ali food and water for long periods, intentionally causing extreme hunger and thirst; and

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k. Repeatedly desecrating the Quran in the presence of Plaintiff Arkan M. Ali and other detainees to demean and degrade them, including having a military dog pick up the Quran in its mouth.
168. Upon Plaintiff Arkan M. Ali’s release from U.S. custody, a U.S. official threatened him by specifically telling him that if he ever reported or discussed the abuse he and others suffered in detention, the U.S. government would find him and he would never see his family again. Plaintiff Arkan M. Ali understood the official to mean that such future detention would be retaliatory and would include further torture or other cruel, inhuman or degrading treatment or even death.
169. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Arkan M. Ali suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he suffers from pain in the kidneys, colon and urinary tract. He also bears severe scars on his arm from the stabbing and burning he suffered. He has severe depression, frequent severe nightmares, and episodes of shortness of breath and an involuntary gulping reflex, which he never experienced prior to his detention. As a result of his continuing injuries, Plaintiff Arkan M. Ali has been unable to maintain employment and his personal relationships with his family and others have deteriorated.
f. Thahe M. Sabbar 170. Plaintiff Thahe M. Sabbar was detained by U.S. military forces in Iraq from approximately July 2003 to January 2004. Plaintiff Sabbar was detained at various locations in Iraq, including locations in Baghdad known as al-Qasr al-Jumhouri and al-Qasr al-Sujood, the prison at the Baghdad international airport, Camp Bucca, and Abu Ghraib. 171. For the purpose of causing severe pain and injuring, interrogating, intimidating, degrading and abusing him while he was in U.S. military custody, care and control, Defendant

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Rumsfeld’s subordinates subjected Plaintiff Sabbar with the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. Frequent severe beatings, including beating Plaintiff Sabbar with their fists and guns while he was handcuffed and helpless, hitting him in the genitals, and forcing him and other detainees to run through a gauntlet of 10 to 20 uniformed soldiers who were screaming at them and beating them with wooden batons;
b. Twice using a gun-shaped device to inflict excruciating electrical shocks on Plaintiff Sabbar;
c. Sexually assaulting Plaintiff Sabbar: One or more soldiers in the presence of male and female soldiers inserted their fingers into Plaintiff Sabbar’s anus and grabbed and fondled his buttocks and penis while making moaning sounds and jeering at him in a sexually degrading and intimidating manner;
d. Staging extraordinary mock executions of Plaintiff Sabbar and other detainees to terrorize, humiliate and degrade them and to extract false confessions, including: forcing Plaintiff Sabbar and other detainees to stand against a wall and staging a mock firing squad with simulated gunfire, laughing as detainees lost control of their bladders in their terror; and threatening to send Plaintiff Sabbar to Guantanamo and informing him that he would be killed there;

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e. Using extreme restraints, hooding him and applying handcuffs so tightly that Plaintiff Sabbar suffered extreme pain and experienced numbness in his hands and wrists;
f. Shackling Plaintiff Sabbar’s hands to a fence behind his back, subjecting him to that position for several hours at temperatures exceeding 120 degrees Fahrenheit (50 degrees Celsius) while denying him any water or food, and other prolonged periods of exposure to extremely hot conditions and denial of water, to the point that he lost consciousness on several occasions;
g. Intentionally causing humiliation and extreme hunger by depriving Plaintiff Sabbar of food and water for extended periods of time, or by providing him with food containing pork or foul-smelling and spoiled food which caused detainees to vomit when they tried to eat it;
h. Intentionally humiliating Plaintiff Sabbar by denying him the use of toilet facilities for extended periods while he was shackled thereby causing him to soil his pants; and
i. Desecrating the Quran in the presence of Plaintiff Sabbar and other detainees to demean and degrade then, including throwing the book to the floor and stepping on it.
172. After his release from U.S. custody, Plaintiff Sabbar and Plaintiff Khalid returned to Abu Ghraib to seek return of property confiscated from them by U.S. forces and to inquire about a mutual business partner who remained in custody. Plaintiffs Sabbar and Khalid were detained in a locked room by military personnel and then released without receiving any

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response to their inquiries. As a result of this experience, Plaintiff Sabbar fears that U.S. forces will detain him again if he pursues remedies for his injuries and losses from U.S. military officials in Iraq.
173. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Sabbar suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, Plaintiff Sabbar continues to suffer from nerve damage and pain in his shoulder, severe nightmares, incontinence, impotence, and uncontrollable bouts of shaking and crying as a direct result of the torture and abuse he experienced.
g. Sherzad K. Khalid 174. Plaintiff Sherzad K. Khalid was detained by U.S. military forces in Iraq from approximately July to September 2003. Plaintiff Khalid was detained at various locations in Iraq, including locations in Baghdad known as al-Qasr al-Jumhouri and al-Qasr al-Sujood, a prison at the Baghdad international airport, and Camp Bucca. 175. For the purpose of causing severe pain and injuring, interrogating, intimidating, degrading and abusing him while he was in U.S. military custody, care and control, Defendant Rumsfeld’s subordinates subjected Plaintiff Khalid to the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. Kicking and punching Plaintiff Khalid over a period of hours while he was shackled and hooded and seated on the ground, terrorizing and injuring him with random and unanticipated blows;
b. Forcing Plaintiff Khalid and other detainees to run a gauntlet of approximately 10 to 20 uniformed U.S. soldiers who beat them with batons; grabbing Plaintiff Khalid by the head, shoving him to the ground,

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and stepping on his head; interrogating Plaintiff Khalid on numerous occasions and beating him severely before each interrogation; and routinely beating Plaintiff Khalid throughout his period of detention, such that his body was covered with deep bruises at the time of his release; c. Sexually assaulting and humiliating Plaintiff Khalid by grabbing his buttocks and simulating anal rape by pressing a water bottle against the seat of his pants; putting a hand inside Plaintiff Khalid’s pants and grabbing his buttocks during a severe beating, punching him in the mouth breaking one of his teeth when he protested, and then brandishing a long wooden pole and threatening to sodomize him on the spot and every night of his detention; d. Using extreme restraints, applying tight hoods that restricted Plaintiff Khalid’s breathing and vision, and handcuffing him so tightly that he suffered severe and long-lasting pain, in order to cause pain and fear; e. Shackling Plaintiff Khalid’s hands to a fence behind his back, subjecting him to that painful position for several hours at temperatures exceeding 120 degrees Fahrenheit (50 degrees Celsius) while denying him any water or food, in order to cause extreme thirst, pain, and humiliation, and other prolonged periods of exposure to extremely hot conditions; f. Subjecting Plaintiff Khalid to prolonged sleep deprivation in a so-called “silent tent” for several days and severely beating him whenever he started to fall asleep;

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g. Subjecting Plaintiff Khalid to extraordinary mock executions and death threats to coerce false confessions, including placing a gun to Plaintiff Khalid’s head and demanding a confession and placing him in a mock firing squad with simulated gunfire;
h. Intentionally causing Plaintiff Khalid severe hunger and humiliation by denying him food and water for extended periods, or providing him with food containing pork or foul-smelling, spoiled food that caused detainees to vomit when they tried to eat it;
i. Intentionally humiliating Plaintiff Khalid by denying him the use of toilet facilities for extended periods while he was shackled thereby causing him to soil his pants;
j. Deliberately depriving Plaintiff Khalid of adequate medical attention and acting with deliberate indifference to his medical needs, including refusing to provide adequate treatment for severe abdominal pains, which were diagnosed after his release as caused by a serious stomach infection.
176. After his release from U.S. custody, Plaintiff Khalid accompanied Plaintiff Sabbar to Abu Ghraib to seek return of property confiscated by U.S. forces and to inquire about a mutual business partner who remained in custody. Both Plaintiff Sabbar and Plaintiff Khalid were detained in a locked room by military personnel and were then released without receiving any response to their inquiries. As a result of this experience, Plaintiff Khalid fears that U.S. forces will detain him again if he pursues remedies for his injuries and losses from U.S. military officials in Iraq.

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177. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Khalid suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. As a result of the untreated stomach infection he suffered in detention, he now has ulcers of the stomach and is required to take medication. Since his detention, he has continued to suffer from increased and high blood pressure and severe back pain. In addition, he suffers from severe depression and nightmares that have caused serious difficulties in his work and family relationships.
h. Ali H. 178. Plaintiff Ali H. was detained by U.S. military forces in Iraq from approximately August to September 2003, when he was 17 years old. Plaintiff Ali H. was detained at various locations in Iraq, including a former Baghdad police station, a facility in or near the city of AlTasfeerat, the Baghdad airport prison, Abu Ghraib, and facilities near the cities of Yusufiya and Mosul and in the Jarf al-Sakhr desert. 179. For the purpose of causing severe pain and injuring, interrogating, intimidating, degrading and abusing him while he was in U.S. military custody, care and control, Defendant Rumsfeld’s subordinates subjected Plaintiff Ali H. to the following forms of torture or other cruel, inhuman or degrading treatment, among others:
a. At the time of arrest, shooting Plaintiff Ali H., hitting him with a gun, throwing him to the ground, and stepping on his head even though he was innocent of any wrongdoing, bleeding profusely from two gunshot wounds, and posed no threat to the arresting soldiers;
b. Refusing to provide medical care for gunshot wounds inflicted by U.S. forces for several hours and then removing bullets from Plaintiff Ali H.’s neck and back without anesthetic, intentionally causing excruciating pain;

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c. Refusing to provide Plaintiff Ali H. with food, water, and pain medication for one-and-a-half days, despite his gunshot wounds, in order to cause pain, hunger, thirst, and humiliation;
d. Refusing to provide Plaintiff Ali H. with adequate medical care and pain medication when he received a life-threatening shrapnel wound during a mortar attack, while he was housed in an outdoor tent at Abu Ghraib. U.S. military personnel intentionally inflicted pain and torture on Plaintiff Ali H. while he was recovering from abdominal surgery by: roughly dragging him from one location to another after surgery, in a way calculated to cause severe pain; keeping him shackled hand and foot to a bed with a blanket placed over his face; transferring him to a prison where he was forced to sleep on the ground outdoors in extremely hot weather without any shelter, despite being in excruciating pain and having an intravenous tube in his arm; and refusing to change the bandages on his surgical wounds and humiliating him when he requested medical assistance, thereby causing his surgical wound to become infected and leak pus, and inflicting further extreme pain and humiliation by roughly ripping away the bandage and then intentionally leaving the wound half-exposed in order to humiliate and injure him; and
e. Intentionally releasing Plaintiff Ali H. in a manner intended to terrorize and degrade him by first informing him that he would be released, then telling him he would be sent to another prison, and then cutting off his identification bracelet, confiscating his release papers and physically

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throwing him from a bus to the ground outside while he still had an intravenous tube in his arm, in a manner calculated to prevent him from seeking relief for the injuries he suffered while in custody. 180. As a result of torture or other cruel, inhuman or degrading treatment while in U.S. custody, Plaintiff Ali H. suffered severe physical and psychological injuries. He continues to suffer the lasting effects of those injuries. Among other things, he suffers severe abdominal pain, particularly in cold weather and while lifting objects. His physician has advised him not to lift objects weighing over two pounds and has further advised that his condition may worsen over time. Plaintiff Ali H. has frequent nightmares relating to the abuse he suffered and witnessed in detention, and awakens his parents during the night when he screams and cries in his sleep. In addition, he is often forced to leave school because of debilitating fatigue, severe depression and abdominal pains. D. Additional Allegations 181. Defendant Rumsfeld has neither denied nor refuted the widespread torture or other cruel, inhuman or degrading treatment of detainees in Iraq and Afghanistan under the effective control and exclusive care and custody of U.S. military forces under his command. 182. Defendant Rumsfeld is a civilian commander of the U.S. Armed Forces. He at all times had authority and control over the detention facilities in Afghanistan and Iraq at which Plaintiffs were tortured. He had effective control over all personnel within those detention facilities who carried out, authorized or allowed the widespread and systematic torture or other cruel, inhuman or degrading treatment of detainees. Defendant Rumsfeld also had effective policymaking authority over the detention and interrogation of detainees in U.S. military custody.

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183. The Afghanistan and Iraq Detainee Plaintiffs were detained under the complete and exclusive jurisdiction and control of military police, military intelligence or other individuals or agents under the direction and control of the U.S. military.
184. Defendant Rumsfeld’s actions and omissions were the proximate cause of the torture or other cruel, inhuman or degrading treatment of Plaintiffs and other detainees in U.S. military custody in Iraq and Afghanistan and are the proximate cause of injuries suffered by Plaintiffs. In that conduct, Defendant Rumsfeld acted under color of law beyond the scope of his lawful and delegated authority.
185. Defendant Rumsfeld acted under color of law in formulating, authorizing, ratifying, implementing, and failing to prevent a policy, pattern or practice causing detainees in U.S. military facilities under the exclusive custody and control of the United States to be tortured and subjected to other cruel, inhuman or degrading treatment. Defendant Rumsfeld knew and should have known that subordinate personnel in U.S. military facilities were engaging in such unlawful conduct on a widespread basis, yet he failed to ensure that those subordinate personnel acted lawfully. As a result, Plaintiffs and other prisoners in U.S. military custody in Afghanistan and Iraq have been tortured or subjected to other cruel, inhuman or degrading treatment. Thus, by his acts, omissions and derelictions, Defendant Rumsfeld is liable for the injuries that Plaintiffs suffered as victims of the widespread policy, pattern or practice of torture or other cruel, inhuman or degrading treatment in violation of law.
186. At the time the Afghanistan Detainee Plaintiffs were detained by U.S. military forces, Defendant Rumsfeld knew and had notice of widespread torture by subordinates but failed to take steps to stop the unlawful conduct. At the time the Iraq Detainee Plaintiffs were detained by U.S. military forces, Defendant Rumsfeld and others under his command knew and

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had notice of widespread torture by subordinates but failed to take steps to stop the unlawful conduct.
187. Each of the Plaintiffs suffered serious physical and psychological injury as a result of Defendant Rumsfeld’s actions and omissions.
188. Defendant Rumsfeld’s subordinates maliciously and sadistically inflicted unnecessary pain and harm on Plaintiffs. Defendant Rumsfeld could foresee these actions by his subordinates because he had notice that the U.S. military was engaging in torture or other cruel, inhuman or degrading treatment before Plaintiffs suffered their injuries. Defendant Rumsfeld thus acted with conscious disregard of the excessive risk of harm to Plaintiffs.
189. In carrying out his unlawful policies, patterns, practices and procedures, and in his other actions and omissions described above, Defendant Rumsfeld violated clearly established constitutional rights and other domestic and international laws, and knew that he was doing so.
190. Absent judicial action, Plaintiffs have no meaningful avenue for obtaining adequate redress for their injuries, including a declaration of their rights against Defendant Rumsfeld.
191. Plaintiffs have no effective means to prevent the policy, pattern, or practice at issue in this suit except through an action against high-ranking civilian and military U.S. commanders and officials.
192. Plaintiffs and each of them fear and are at risk of detention by the U.S. military and of continued injury and abuse in violation of law. On information and belief, Defendant Rumsfeld has not rescinded his authorizations for harsh interrogation and detention policies that caused Plaintiffs’ torture or other cruel, inhuman or degrading treatment. Defendant Rumsfeld’s policy, pattern, or practice that caused Plaintiffs’ injuries continues in effect.

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JURY DEMAND 193. Plaintiffs request a trial by jury in this action on each and every count alleged herein.
CLAIMS
FIRST CAUSE OF ACTION Violation Of Fifth Amendment Due Process Clause 194. Paragraphs 1 through 193 are incorporated as if set forth fully herein. 195. Defendant’s actions described herein violate the Due Process Clause of the Fifth Amendment to the Constitution, which prohibits any person acting under color of U.S. law from engaging in or allowing torture, abuse or other treatment that “shocks the conscience,” of any person in U.S. custody or control. 196. In his conduct set forth in this Complaint, Defendant acted under color of federal law. 197. Defendant’s actions, orders, authorizations, approvals and omissions caused the torture and abuse of Plaintiffs in violation of the Fifth Amendment and gives rise to a cause of action for damages directly under the Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 198. Defendant had actual and constructive knowledge that his subordinates were violating the constitutional rights of Plaintiffs, and had actual and constructive knowledge that it was highly likely that these constitutional violations would occur as a result of his actions, orders, policies, practices and omissions. Despite this knowledge, Defendant acted with reckless and deliberate indifference to his subordinates’ unconstitutional actions. Through his actions and failures to act, Defendant expressly and tacitly authorized his subordinates’ unlawful conduct.

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199. Defendant Rumsfeld had power to formulate policies relating to the treatment and interrogation of detainees, and exercised that power to generate illegal practices, namely, the torture or other cruel, inhuman or degrading treatment of detainees in Iraq and Afghanistan.
200. Defendant Rumsfeld directly and knowingly authorized his subordinates to engage in conduct that shocks the conscience — namely, the torture or other cruel, inhuman or degrading treatment of detainees.
SECOND CAUSE OF ACTION Violation Of the Fifth and Eighth Amendment Prohibition On Cruel And Unusual
Punishment 201. Paragraphs 1 through 200 are incorporated as if set forth fully herein. 202. Defendant’s actions described herein violate the prohibition on cruel and unusual punishment in the Due Process Clause of the Fifth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment to the Constitution. Those amendments prohibit any person under color of U.S. law from engaging in or allowing torture, or other cruel, inhuman or degrading treatment or punishment or other treatment that constitutes deprivation of basic human needs such as food and reasonable safety, and the unnecessary and wanton infliction of pain on any person in U.S. custody or control. The Cruel and Unusual Punishment Clause of the Eighth Amendment and the Due Process Clause of the Fifth Amendment give rise to a cause of action for damages directly under the Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 203. Defendant Rumsfeld and his subordinates authorized, ratified, and failed to stop and prevent the torture or other cruel, inhuman or degrading treatment of Plaintiffs and other detainees in U.S. custody, which occurred as a form of summary punishment for perceived or

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alleged wrongdoing and constituted imposition of sentence on Plaintiffs without an adjudication of guilt.
204. Defendant Rumsfeld had power to formulate policies relating to the treatment and interrogation of detainees, and exercised that power to generate illegal practices, namely, the torture or other cruel, inhuman or degrading treatment of detainees in Iraq and Afghanistan.
205. Defendant was responsible for the command and supervision of individuals who subjected Plaintiffs and other detainees to torture or other cruel, inhuman or degrading treatment. Defendant knew that his subordinates had engaged in such unlawful activity, including actions undertaken maliciously and sadistically for the very purpose of causing unnecessary pain and harm to further unlawfully the interrogation, punishment, intimidation or coercion of Plaintiffs and other detainees. Defendant also knew that it was highly likely that his subordinates would continue to engage in such unlawful torture or other cruel, inhuman or degrading treatment or punishment. Yet Defendant acted with deliberate indifference and conscious disregard of the high likelihood of injury, and failed to take steps to prevent his subordinates from engaging in such conduct.
THIRD CAUSE OF ACTION Torture In Violation Of The Law Of Nations 206. Paragraphs 1 through 205 are incorporated as if set forth fully herein. 207. Defendant’s actions described herein violate the law of nations which prohibits engaging in or permitting torture. The prohibition against torture is a “specific, universal, and obligatory” norm, from which no derogation is allowed. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2763, 2766 (2004); id. at 2783 (Breyer, J., concurring); U.N. Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85.

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208. Defendant’s actions and omissions are the direct and proximate cause of Plaintiffs’ injuries and give rise to a cause of action for a tort in violation of the law of nations.
209. Defendant had effective command and control of individuals who intentionally and knowingly subjected each of the Plaintiffs to torture, which is prohibited by the law of nations.
210. Defendant had actual and constructive knowledge of his subordinates’ torture of detainees in U.S. custody and violated his duty as a commander to punish the perpetrators or otherwise to prevent further acts of torture.
FOURTH CAUSE OF ACTION Cruel, Inhuman Or Degrading Treatment In Violation Of The Law Of Nations 211. Paragraphs 1 through 210 are incorporated as if set forth fully herein. 212. Defendant’s actions described herein violate the law of nations which prohibits engaging in or permitting cruel, inhuman or degrading treatment or punishment. The prohibition against cruel, inhuman or degrading treatment is an international law norm, which applies without exception. See, e.g., International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Mar. 23, 1976; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Art. 147 & Art. 3 Common to all Four Geneva Conventions. Defendant’s actions and omissions are the direct and proximate cause of Plaintiffs’ injuries and give rise to a cause of action for a tort in violation of the law of nations. 213. Defendant had effective command and control of individuals who intentionally and knowingly subjected each of the Plaintiffs to cruel, inhuman or degrading treatment, which is prohibited by the law of nations.

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214. Defendant had actual and constructive knowledge of his subordinates’ torture of detainees in U.S. custody, but did not fulfill his duty as a commander to punish the perpetrators or otherwise to prevent further acts of cruel, inhuman or degrading treatment or punishment.
FIFTH CAUSE OF ACTION Violation Of The Geneva Conventions 215. Paragraphs 1 through 214 are incorporated as if set forth fully herein. 216. Plaintiffs were tortured and subjected to other cruel, inhuman or degrading treatment during their detentions in U.S. custody in violation of specific provisions of the Third and Fourth Geneva Conventions, including but not limited to Article 3 Common to all Four Conventions. 217. Violations of these provisions of the Geneva Conventions are direct and enforceable treaty violations as well as violations of the law of nations. 218. Defendant is liable for violations of Plaintiffs’ rights under the Geneva Conventions because Defendant formulated, authorized, approved, directed or ratified the torture or other cruel, inhuman or degrading treatment of Plaintiffs as part of a policy, pattern or practice. In addition, Defendant is liable because his subordinates deliberately and intentionally engaged in the torture or other cruel, inhuman or degrading treatment of Plaintiffs while acting under his effective command and control, and Defendant knew and should have known of his subordinates’ actions but failed to prevent or punish them.
SIXTH CAUSE OF ACTION Declaratory Relief For Violation Of The Law Of Nations, Of The Geneva Conventions And
Of The Constitution 219. Paragraphs 1 through 218 above are incorporated as if fully set forth herein.

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220. There is a real and actual controversy between Plaintiffs and Defendant Rumsfeld as to whether he has violated the Plaintiffs’ legal rights under the law of nations, binding treaties and the U.S. Constitution as a result of torture or other cruel, inhuman or degrading treatment or punishment of Plaintiffs while in U.S. custody.
221. Plaintiffs reasonably fear that they are at risk of and will again be subjected to Defendant’s unlawful and unconstitutional actions, and seek a judicial declaration that Defendant’s conduct deprived them of their rights under the law of nations, provisions of the Geneva Conventions, and the Fifth and Eighth Amendments to the U.S. Constitution.
222. The Court therefore should grant declaratory relief and any further necessary and proper relief as set forth below, pursuant to 28 U.S.C. §§ 2201, 2202.

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PRAYER FOR RELIEF Plaintiffs therefore respectfully request that the Court enter a judgment including but not limited to: a. A declaration that the acts alleged herein are unlawful and violate the
Constitution, treaty provisions including provisions of the Geneva Conventions, military rules and guidelines, and the law of nations; b. A declaration that the policy, pattern, or practice of the Defendant alleged herein is unlawful and violates the Constitution, treaty provisions including provisions of the Geneva Conventions, military rules and guidelines, and the law of nations; c. A declaration that assigns responsibility for Plaintiffs’ injuries to Defendant for his failure to take necessary and adequate measures to prevent persons under his effective command from engaging in the torture or other cruel, inhuman or degrading treatment or punishment of Plaintiffs and his failure to punish persons under his effective command for engaging in such conduct; d. Compensatory damages for violation of the law of nations and the Constitution in an amount that is fair, just and reasonable; e. Attorneys’ fees and costs; and f. All other appropriate relief as may be just and proper.

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Respectfully submitted,

______________________________ LUCAS GUTTENTAG CECILLIA WANG American Civil Liberties Union
Foundation Immigrants’ Rights Project 405 14th Street, Suite 300 Oakland, CA 94612 (510) 625-2010
STEVEN R. SHAPIRO AMRIT SINGH American Civil Liberties Union
Foundation 125 Broad Street New York, NY 10004 (212) 549-2500
JAMES P. CULLEN BG, JAGC, USA (ret.) Of Counsel, Human Rights First 1251 Avenue of the Americas New York, NY 10020 (212) 278-1565
DAVID RUDOVSKY Kairys, Rudovsky, Epstein & Messing LLP 924 Cherry St., Suite 500 Philadelphia PA 19107 (215) 925-4400
______________________________ HARVEY GROSSMAN The Roger Baldwin Foundation
of ACLU, Inc. 180 N. Michigan Ave. Suite 2300 Chicago, IL 60601 (312) 201-9740
Date:

______________________________ MICHAEL POSNER DEBORAH PEARLSTEIN FIONA DOHERTY Human Rights First 333 Seventh Avenue, 13th Floor New York, NY 10001-5004 (212) 845 5200
______________________________ BILL LANN LEE CHIMÈNE I. KEITNER NIREJ S. SEKHON Lieff Cabraser Heimann & Bernstein LLP Embarcadero Center West 275 Battery Street, Suite 3000 San Francisco, CA 94111-3339 (415) 956-1000
JOHN D. HUTSON RADM, JAGC, USN (ret.) Of Counsel, Human Rights First 2 White Street Concord, NH 03301 (603) 228-1074
ERWIN CHEMERINSKY Duke University School of Law Science Drive & Towerview Rd. Durham, NC 27707 (919) 613-7173
PAUL HOFFMAN Schonbrun DeSimone Seplow Harris &
Hoffman LLP 723 Ocean Front Walk Venice, CA 90291 (310) 396-0731

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 Case: 1:05-cv-01378-TFH As of: 11/10/2013 07:57 PM EST 1 of 7
CLOSED,JURY,TYPE−B
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:05−cv−01378−TFH

ALI v. RUMSFELD Assigned to: Judge Thomas F. Hogan Lead case: 1:05−mc−00267−TFH Member case: (View Member Case) Case in other court: USCA−DC, 07−05178
Northern district of Illinois, C.A. No. 1:05−01201 Cause: 28:1407 Airline Crash
Plaintiff

Date Filed: 07/08/2005 Date Terminated: 03/27/2007 Jury Demand: Plaintiff Nature of Suit: 360 P.I.: Other Jurisdiction: U.S. Government Defendant

ARKAN MOHAMMED ALI

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL 4301 Connecticut Avenue, NW Suite 434 Washington, DC 20008 (202) 457−0800 x113 Fax: (202) 457−0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah N. Pearlstein WOODROW WILSON SCHOOL OF PUBLIC AND INTERNATIONAL AFFAIRS Princeton University Princeton, NJ 08540 (609) 924−4535 Fax: (609) 924−8615 ATTORNEY TO BE NOTICED

Hina Shamsi AMERIAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th floor New York, NY 10004 212−284−7321 Fax: 212−549−2654 Email: hshamsi@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Michael H. Posner U.S. LAW AND SECURITY PROGRAM Human Rights First 333 Seventh Avenue 13th Floor New York, NY 10001 (212) 845−5200 Fax: (212) 845−5299 ATTORNEY TO BE NOTICED

Priti N. Patel U.S. LAW AND SECURITY PROGRAM Human Rights First 333 Seventh Avenue

Case: 1:05-cv-01378-TFH As of: 11/10/2013 07:57 PM EST 2 of 7

13th Floor New York, NY 10001 (212) 845−5200 Fax: (212) 845−5299 ATTORNEY TO BE NOTICED

Plaintiff MEHBOOB AHMAD

represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

Deborah N. Pearlstein (See above for address) ATTORNEY TO BE NOTICED

Hina Shamsi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael H. Posner (See above for address) ATTORNEY TO BE NOTICED

Priti N. Patel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff NAJEEB ABBAS AHMED

represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

Deborah N. Pearlstein (See above for address) ATTORNEY TO BE NOTICED

Hina Shamsi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael H. Posner (See above for address) ATTORNEY TO BE NOTICED

Priti N. Patel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ALI H.

represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

Deborah N. Pearlstein (See above for address) ATTORNEY TO BE NOTICED

Hina Shamsi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:05-cv-01378-TFH As of: 11/10/2013 07:57 PM EST 3 of 7

Plaintiff SHERZAD KAMAL KHALID
Plaintiff HAJI ABDUL RAHMAN
Plaintiff THAHE MOHAMMED SABAR

Michael H. Posner (See above for address) ATTORNEY TO BE NOTICED
Priti N. Patel (See above for address) ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Deborah N. Pearlstein (See above for address) ATTORNEY TO BE NOTICED
Hina Shamsi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael H. Posner (See above for address) ATTORNEY TO BE NOTICED
Priti N. Patel (See above for address) ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Deborah N. Pearlstein (See above for address) ATTORNEY TO BE NOTICED
Hina Shamsi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael H. Posner (See above for address) ATTORNEY TO BE NOTICED
Priti N. Patel (See above for address) ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Deborah N. Pearlstein (See above for address) ATTORNEY TO BE NOTICED
Hina Shamsi

Case: 1:05-cv-01378-TFH As of: 11/10/2013 07:57 PM EST 4 of 7

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael H. Posner (See above for address) ATTORNEY TO BE NOTICED

Priti N. Patel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MOHAMMED KARIM SHIRULLAH

represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

Deborah N. Pearlstein (See above for address) ATTORNEY TO BE NOTICED

Hina Shamsi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael H. Posner (See above for address) ATTORNEY TO BE NOTICED

Priti N. Patel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SAID NABI SIDDIQI

represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

Deborah N. Pearlstein (See above for address) ATTORNEY TO BE NOTICED

Hina Shamsi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael H. Posner (See above for address) ATTORNEY TO BE NOTICED

Priti N. Patel (See above for address) ATTORNEY TO BE NOTICED

V. Defendant DONALD H. RUMSFELD

represented by J. Marcus Meeks DEPARTMENT OF JUSTICE Torts Branch, Civil Division

Case: 1:05-cv-01378-TFH As of: 11/10/2013 07:57 PM EST 5 of 7
P.O. Box 7146 Ben Franklin Station Washington, DC 20044 (202) 616−4176 Fax: (202) 616−4314 Email: marcus.meeks@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/08/2005
08/10/2005 11/21/2005 11/28/2005 12/12/2005 12/13/2005
01/05/2006
01/06/2006
01/12/2006
03/02/2006 03/06/2006

# Docket Text
1 CERTIFIED COPY OF TRANSFER ORDER: from Judicial Panel on Multidistrict Litigation transferring an action in the Northern District of Illinois to the District of Columbia, assigned to Honorable Chief Judge Thomas F. Hogan for coordinated or consolidated pretrial proceedings pursuant to 28 USC Sectiion 1407 N) (ks, ) (Entered: 08/12/2005)
2 COPY OF LETTER from Nancy Mayer−Whittington Clerk, USDC DC to Clerk, USDC for the Northern District of Illinois, requesting transfer of the file and docket entries in C.A. No. 1:05−1201 (ks, ) (Entered: 08/12/2005)
3 NOTICE of Appearance by Arthur B. Spitzer on behalf of all plaintiffs (Spitzer, Arthur) (Entered: 11/21/2005)
4 ORDER scheduling a conference for Tuesday, January 31, 2006 at 10:30 a.m. in Courtroom 25 and scheduling a filing date for defendants' answers to the complaints. Signed by Chief Judge Thomas F. Hogan on November 23, 2005. (lctfh2) (Entered: 11/28/2005)
5 Joint MOTION for Extension of Time to Respond to Consolidated Amended Complaint by ARKAN MOHAMMED ALI. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/12/2005)
MINUTE ORDER granting 5 Joint Motion for an Extension of Time for Defendants to Respond to a Consolidated Amended Complaint. Accordingly, the Defendant's response to the complaint shall be filed by March 6, 2006 and the conference currently scheduled for January 31, 2006 shall be postponed until March 20, 2006 at 10:30 a.m., at which time the parties shall appear in Courtroom 25A to discuss scheduling further proceedings.Signed by Chief Judge Thomas F. Hogan on December 13, 2005. (Entered: 12/13/2005)
6 CONSOLIDATED AMENDED COMPLAINT against DONALD H. RUMSFELDfiled by MEHBOOB AHMAD, NAJEEB ABBAS AHMED, ALI H., SHERZAD KAMAL KHALID, HAJI ABDUL RAHMAN, THAHE MOHAMMED SABAR, MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, ARKAN MOHAMMED ALI.(nmw, ) (Entered: 01/06/2006)
7 Joint MOTION to Suspend Local Civil Rule Obligation to File Residence Addresses by MEHBOOB AHMAD, NAJEEB ABBAS AHMED, ALI H., SHERZAD KAMAL KHALID, HAJI ABDUL RAHMAN, THAHE MOHAMMED SABAR, MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, ARKAN MOHAMMED ALI. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 01/06/2006)
8 Consent MOTION to Consolidate Future Filings by MEHBOOB AHMAD, NAJEEB ABBAS AHMED, ALI H., SHERZAD KAMAL KHALID, HAJI ABDUL RAHMAN, THAHE MOHAMMED SABAR, MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, ARKAN MOHAMMED ALI. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 01/12/2006)
9 ORDER granting [#7] Joint Motion to Suspend their Local Rule 5.1(e) and 11.1 Obligations, Signed by Chief Judge Thomas F. Hogan on 3/2/06. (hs,) (Entered: 03/02/2006)
10 MOTION to Dismiss by DONALD H. RUMSFELD. (Attachments: # 1 Text of Proposed Order # 2 Exhibit)(Meeks, J.) (Entered: 03/06/2006)

Case: 1:05-cv-01378-TFH As of: 11/10/2013 07:57 PM EST 6 of 7

03/07/2006 03/23/2006 03/24/2006 03/30/2006 04/04/2006 05/18/2006
05/18/2006
05/18/2006
05/18/2006
10/17/2006 10/18/2006 03/27/2007

MINUTE ORDER advising the parties that due to an unavoidable scheduling conflict the status conference currently scheduled for March 20, 2006 has been rescheduled to take place on March 28, 2006 at 9:30 a.m. in Courtroom 25. Signed by Chief Judge Thomas F. Hogan on March 7, 2006. (lctfh2) (Entered: 03/07/2006)
MINUTE ORDER postponing the status conference previously scheduled for March 28, 2006 to a date to be set by a future Order of the Court. Signed by Chief Judge Thomas F. Hogan on March 23, 2006. (lctfh2) (Entered: 03/23/2006)
11 Joint MOTION to Set Briefing Schedule by MEHBOOB AHMAD, NAJEEB ABBAS AHMED, ALI H., SHERZAD KAMAL KHALID, HAJI ABDUL RAHMAN, THAHE MOHAMMED SABAR, MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, ARKAN MOHAMMED ALI. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 03/24/2006)
ORDER granting 11 Joint Motion to Set Briefing Schedule. The plaintiffs' oppositions to the defendants' motions to dismiss shall be due on or before May 19, 2006 and the defendants' replies thereto shall be due on or before June 19, 2006. Signed by Chief Judge Thomas F. Hogan on March 30, 2006. (lctfh2) (Entered: 03/30/2006)
12 ORDER granting 8 Consent Motion to Consolidate Future Filings. Signed by Chief Judge Thomas F. Hogan on April 4, 2006. (lctfh2) (Entered: 04/04/2006)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Priti N. Patel. :Address− 333 7th Avenue, NY NY 10001. Phone No. − 212−845−5200. Fax No. − 212−845−5299 by MEHBOOB AHMAD, NAJEEB ABBAS AHMED, ALI H., SHERZAD KAMAL KHALID, HAJI ABDUL RAHMAN, THAHE MOHAMMED SABAR, MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, ARKAN MOHAMMED ALI. (Attachments: # 1 Patel Declaration# 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/18/2006)
14 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Deborah N. Pearlstein. :Address− 333 7th Avenue, NY NY 10001. Phone No. − 212−845−5200. Fax No. − 212−845−5299 by MEHBOOB AHMAD, NAJEEB ABBAS AHMED, ALI H., SHERZAD KAMAL KHALID, HAJI ABDUL RAHMAN, THAHE MOHAMMED SABAR, MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, ARKAN MOHAMMED ALI. (Attachments: # 1 Pearlstein Declaration# 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/18/2006)
15 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Michael H. Posner. :Address− 333 7th Avenue, NY NY 10001. Phone No. − 212−845−5200. Fax No. − 212−845−5299 by MEHBOOB AHMAD, NAJEEB ABBAS AHMED, ALI H., SHERZAD KAMAL KHALID, HAJI ABDUL RAHMAN, THAHE MOHAMMED SABAR, MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, ARKAN MOHAMMED ALI. (Attachments: # 1 Posner Declaration# 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/18/2006)
16 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Hina Shamsi. :Address− 333 7th Avenue NY NY 10001. Phone No. − 212−845−5200. Fax No. − 212−845−5299 by MEHBOOB AHMAD, NAJEEB ABBAS AHMED, ALI H., SHERZAD KAMAL KHALID, HAJI ABDUL RAHMAN, THAHE MOHAMMED SABAR, MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, ARKAN MOHAMMED ALI. (Attachments: # 1 Shamsi Declaration# 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/18/2006)
17 ORDER; granting [#16] Motion for Leave to Appear Pro Hac Vice ;Hina Shamsi, Signed by Chief Judge Thomas F. Hogan on 10/13/06. (hs,) (Entered: 10/17/2006)
MINUTE ORDER granting the 13 Motion for Leave to Appear Pro Hac Vice filed by Priti N. Patel, granting the 14 Motion for Leave to Appear Pro Hac Vice filed by Deborah N. Pearlstein, granting the 15 Motion for Leave to Appear Pro Hac Vice filed by Michael H. Posner . Signed by Chief Judge Thomas F. Hogan on October 18, 2006. (lctfh2, ) (Entered: 10/18/2006)
18 MEMORANDUM OPINION. Signed by Chief Judge Thomas F. Hogan on 3/27/07. (Entered: 03/27/2007)

Case: 1:05-cv-01378-TFH As of: 11/10/2013 07:57 PM EST 7 of 7

03/27/2007
05/24/2007
05/25/2007 05/31/2007 06/05/2007 09/19/2008 10/27/2008
05/12/2010
10/03/2011

19 ORDER granting Defendant Pappas' Motion to Dismiss in part and denying in part as moot (13) in case 1:05−cv−01377−TFH; granting Defendant's and United States' Motion to Dismiss in its entirety in case 1:05−cv−01378−TFH (10); granting in part and denying in part as moot Defendant Janis Karpinski's Motion to Dismiss (13) in case 1:05−cv−01379−TFH; granting in part and denying in part as moot Defendant Lieutenant General Ricardo Sanchez's Motion to Dismiss in case 1:05−cv−01380−TFH in case 1:05−cv−01379−TFH; dismissing plaintiff's cases. Signed by Chief Judge Thomas F. Hogan on 3/27/07. (Entered: 03/27/2007)
20 NOTICE OF APPEAL as to 19 Order on Motion to Dismiss,,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,,,,,,,, 18 Memorandum &Opinion by MEHBOOB AHMAD, NAJEEB ABBAS AHMED, ALI H., SHERZAD KAMAL KHALID, HAJI ABDUL RAHMAN, THAHE MOHAMMED SABAR, MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, ARKAN MOHAMMED ALI. Filing fee $ 455, receipt number 1200422. Fee Status: Fee Paid. Parties have been notified. (Spitzer, Arthur) (Entered: 05/24/2007)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 20 Notice of Appeal, (lc, ) (Entered: 05/25/2007)
Supplemental Record on Appeal transmitted to US Court of Appeals re 20 Notice of Appeal, (lc, ) (Entered: 05/31/2007)
USCA Case Number 07−5178 for 20 Notice of Appeal, filed by MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, THAHE MOHAMMED SABAR, HAJI ABDUL RAHMAN, ALI H., ARKAN MOHAMMED ALI, NAJEEB ABBAS AHMED, MEHBOOB AHMAD, SHERZAD KAMAL KHALID. (lc, ) (Entered: 06/06/2007)
NOTICE of duplicate case. This case is a duplicate of CA 08−1605. Other documents filed on 9/18/08 can be viewed at that case number as well as the entries from the USDC for the Northern District of Illinois. CA 08−1605 will be administratively closed.(jeb, ) (Entered: 09/19/2008)
21 ORDER of USCA as to 20 Notice of Appeal, filed by MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, THAHE MOHAMMED SABAR, HAJI ABDUL RAHMAN, ALI H., ARKAN MOHAMMED ALI, NAJEEB ABBAS AHMED, MEHBOOB AHMAD, SHERZAD KAMAL KHALID; ORDER denying without prejudice to renewal motion for summary affirmance; FURTHER ORDERED, on the court's own motion, that these consolidated cases be held in abeyance pending further order of the court. (USCA 07−5178) (mmh, ) Modified on 11/17/2008 (jeb, ). (Entered: 11/06/2008)
22 ORDER of USCA as to 20 Notice of Appeal, filed by MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, THAHE MOHAMMED SABAR, HAJI ABDUL RAHMAN, ALI H., ARKAN MOHAMMED ALI, NAJEEB ABBAS AHMED, MEHBOOB AHMAD, SHERZAD KAMAL KHALID ; ORDERED that appellants' request to hold this case in abeyance be dismissed as moot in light of the Supreme Court's order vacating the judgment and remanding the case in Kiyemba v Obama; FURTHER ORDERED that the renewed motion for summary affirmance be denied. USCA Case Number 07−5178. (mmh, ) (Entered: 05/13/2010)
23 MANDATE of USCA (certified copy) as to (20 in 1:05−cv−01378−TFH) Notice of Appeal, filed by MOHAMMED KARIM SHIRULLAH, SAID NABI SIDDIQI, THAHE MOHAMMED SABAR, HAJI ABDUL RAHMAN, ALI H., ARKAN MOHAMMED ALI, NAJEEB ABBAS AHMED, MEHBOOB AHMAD, SHERZAD KAMAL KHALID ; USCA Case Number 07−5178. ORDERED and ADJUDGED that the judgment of the District Court appealed from in these causes is hereby affirmed, in accordance with the opinion of the court filed herein this date. (kb) (Entered: 10/04/2011)

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2011

Decided June 21, 2011

No. 07-5178

ARKAN MOHAMMED ALI ET AL., APPELLANTS

v.

DONALD H. RUMSFELD, INDIVIDUALLY, ET AL., APPELLEES

Consolidated with 07-5185, 07-5186, 07-5187

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 were on 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,

2
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 for the Court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Senior Circuit Judge EDWARDS.
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 officers1 (collectively, defendants) 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.
1 Army Lieutenant General Ricardo Sanchez, commander of the “Coalition Joint Task Force-7” from June 2003 to July 2004 and “the highest-ranking U.S. military official in Iraq,” Am. Compl. ¶ 28; Janis Karpinski, commander of the “800th Military Police Brigade,” which was responsible for detention facilities in Iraq, from approximately June 2003 to May 2004; and Colonel Thomas Pappas, commander of the “205th Military Intelligence Brigade” who in November 2003 assumed command of the “Joint Interrogation and Debriefing Center” at Abu Ghraib prison near Baghdad, Iraq. Id. ¶¶ 29-30.

3
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

4
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 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

5
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,

6
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 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 (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
2 Additionally, defendants Karpinski and Sanchez argued the plaintiffs’ claims raise nonjusticiable political questions and defendant Pappas argued the constitutional claims against him should be dismissed because the plaintiffs’ allegations failed to connect him to the alleged constitutional violations and all claims against him should be dismissed for lack of personal jurisdiction. Because it dismissed the plaintiffs’ cases on other grounds, the district court considered these arguments moot.
3 “The holding in Bivens permits a plaintiff to bring an action in federal court against a federal officer/employee for the violation of his constitutional rights. 403 U.S. at 389. A Bivens suit is the federal counterpart of a claim brought pursuant to 42 U.S.C. § 1983 against a state or local officer/employee for the violation of the claimant’s constitutional rights.” Rasul v. Myers, 512 F.3d 644, 652 n.2 (D.C. Cir.), vacated, 129 S. Ct. 763 (2008).

7
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 (1950), and United States v. VerdugoUrquidez, 494 U.S. 259 (1990), and Zadvydas v. Davis, 533 U.S. 678 (2001), and on our holding in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev’d, 553 U.S. 723 (2008).5 The court
4 The district court also held that the plaintiffs’ Eighth Amendment claim failed “not only because the plaintiffs are precluded from invoking the Constitution . . . , but also because the Eighth Amendment applies only to convicted criminals” and the plaintiffs “were never convicted of a crime.” 479 F. Supp. 2d at 103 (citing Ingraham v. Wright, 430 U.S. 651, 664 (1977)). On appeal the plaintiffs contend their Eighth Amendment claim is cognizable. Because we affirm the district court’s dismissal of the Eighth Amendment claim on other grounds, we do not reach this argument.
5 In Eisentrager, the Supreme Court held that German nationals who were imprisoned at a U.S. army base in Germany and convicted of war crimes committed during World War II had no habeas corpus right under the U.S. Constitution. In Verdugo-Urquidez, the Court held that a Mexican citizen whose residence in Mexico was searched by agents of the United States Drug Enforcement Administration could not assert a claim under the Fourth Amendment to the U.S. Constitution. The Court explained that it had “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States” and described holdings such as Plyler v. Doe, 457 U.S. 202, 210-12 (1982) (illegal aliens residing in United States protected by Equal Protection Clause), and Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (resident alien “person” within meaning of Fifth Amendment), and Bridges v. Wixon, 326 U.S. 135, 148 (1945) (resident aliens have First Amendment rights), and Russian Volunteer Fleet v. United States, 282 U.S. 481, 489 (1931) (foreign corporation doing business in America entitled to just compensation under Fifth Amendment for property taken by U.S. government), and Wong Wing v. United States, 163 U.S. 228, 238 (1896) (resident aliens

8
further held that even if the plaintiffs could claim constitutional protections, special factors would counsel against inferring a Bivens remedy. Detainees Litig., 479 F. Supp. 2d at 103-07. It explained “that military affairs, foreign relations, and national security are constitutionally committed to” the President and the Congress and concluded “that authorizing monetary damages remedies against military officials engaged in an active war would . . . obstruct the Armed Forces’ ability to act decisively and without hesitation in defense of our liberty and national
entitled to Fifth and Sixth Amendment rights), and Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment protects resident aliens), as “establish[ing] only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” 494 U.S. at 269, 271. In Zadvydas, the Court reaffirmed the constitutional distinction between persons present in the United States and persons outside the United States. The Court held that a federal statute authorizing the Government to hold an alien who has been ordered deported beyond the 90-day “removal period” within which the alien is to be deported permits the Government to hold the alien for only a “reasonable time.” 533 U.S. at 682. The Court explained the statute would “raise serious constitutional concerns” if it allowed the Government to hold indefinitely a deportable alien present in the United States, id., but reiterated “that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders,” relying on Eisentrager and Verdugo-Urquidez. 533 U.S. at 693. In Boumediene, we held that both Supreme Court and our own precedent “hold[] that the Constitution does not confer rights on aliens without property or presence within the United States.” 476 F.3d at 991. The Supreme Court reversed our decision in Boumediene and held, for the first time, that alien detainees held at Guantanamo Bay, Cuba, can assert a habeas corpus right under the Suspension Clause of the U.S. Constitution. 553 U.S. 723; see U.S. Const. art. I, § 9, cl. 2 (Suspension Clause). As set forth infra p. 11-17, we distinguish the Supreme Court’s Boumediene decision.

9
interests.” Id. at 107, 105. Finally, the district court held that qualified immunity protected the defendants from the Bivens claims because, even if the plaintiffs possess constitutional rights, “those rights were not clearly established at the time the alleged injurious conduct occurred.” Id. at 108.
As to the Geneva Conventions claims and the alleged violations of the law of nations brought pursuant to the ATS,6 the district court held that “the defendants are entitled to absolute immunity pursuant to the Westfall Act,” according to which Act the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq., provides the exclusive remedy for a tort committed by a federal official or employee within the scope of his employment.7 479 F. Supp. 2d at 114. The court concluded the Westfall Act includes an intentional tort, id. at 110-11, and,
6 The ATS provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350.
7 The Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563 (amending 28 U.S.C. §§ 2671, 2674, 2679), commonly referred to as the Westfall Act, provides in pertinent part:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1). The Westfall Act makes the FTCA remedy “exclusive of any other civil action or proceeding for money damages.” Id. § 2679(b)(1).

10
relying on the Restatement (Second) of Agency § 228 (1958),8 determined the defendants acted within the scope of their employment because “detaining and interrogating enemy aliens” was “incidental to their overall military obligations.” Id. at 114. The court further ruled that neither the ATS claims nor the Geneva Conventions claims fell within one of the statutory exceptions to the Westfall Act. Id. at 111-13. Accordingly, the court substituted the United States as the defendant on the ATS and Geneva Conventions claims and then dismissed those claims because the plaintiffs failed to exhaust their administrative remedies as required by the FTCA. Id. at 114-15.
The district court rejected the plaintiffs’ allegation that Geneva Convention IV itself provides a private cause of action and dismissed their claims for violations of the Convention for failure to state a claim for relief. Id. at 115-17. Regarding their claim for declaratory relief, the court held the plaintiffs lacked standing because the named defendants no longer held their official positions in Iraq or Afghanistan and therefore the plaintiffs could not show “that they face a real and imminent threat of being wronged again in the future” by those
8 The Restatement (Second) of Agency § 228 (1958) provides in part:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

11
defendants. Id. at 118. Additionally, the court held the plaintiffs, having sued the defendants in their individual capacities only, could not seek declaratory relief.9 Id. at 118-19.
The plaintiffs timely filed a notice of appeal on May 24, 2007, challenging the district court’s dismissal of their constitutional and ATS claims and its dismissal of their claim for declaratory relief. They do not appeal the dismissal of their Geneva Conventions claims.
II.
In reviewing the district court’s grant of a motion to dismiss, we accept as true the factual allegations of the plaintiffs’ complaint and review the district court’s legal conclusions de novo. Daniels v. Union Pac. R.R. Co., 530 F.3d 936, 940 (D.C. Cir. 2008) (“We review the district court’s legal conclusions de novo . . . [and] accept as true the facts that [the plaintiffs] allege[] in [their] complaint in reviewing the district court’s disposition of the defendants’ motion to dismiss.” (alterations in original) (internal quotation marks omitted)). We address seriatim the plaintiffs’ constitutional claims, their ATS claims and their claim for declaratory relief.
A. The Bivens Claims
Each plaintiff asserts two Bivens claims, namely, the defendants tortured him in violation of his due process right under the Fifth Amendment and the defendants’ conduct constituted cruel and unusual punishment in violation of the Eighth Amendment.10 Am. Compl. ¶¶ 235-46. Our decisions in
9 The court apparently overlooked the fact that the plaintiffs sued defendant Rumsfeld in both his individual and official capacities. See Am. Compl. ¶ 27.
10 The second claim also alleges the defendants’ conduct constituted cruel and unusual punishment in violation of the Fifth

12
Rasul v. Myers (Rasul I), 512 F.3d 644 (D.C. Cir.), vacated, 129 S. Ct. 763 (2008), and Rasul v. Myers (Rasul II), 563 F.3d 527 (D.C. Cir.) (per curiam), cert. denied, 130 S. Ct. 1013 (2009), govern our resolution of these claims.
In Rasul I, four British citizens sued Secretary Rumsfeld and several high-ranking military officials for damages arising from their alleged illegal detention and torture at Guantanamo Bay, Cuba between 2002 and 2004. Rasul I, 512 F.3d at 649-50. Their complaint included claims under the Fifth and Eighth Amendments, the ATS, the Geneva Conventions and the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. We affirmed the district court’s dismissal of the constitutional claims, explaining that “Guantanamo detainees lack constitutional rights because they are aliens without property or presence in the United States.” 512 F.3d at 663 (citing Boumediene v. Bush, 476 F.3d 981, 984 (D.C. Cir. 2007), rev’d, 553 U.S. 723 (2008)). Furthermore, we concluded the defendants were protected by qualified immunity because, even assuming arguendo the detainees possessed rights under the Fifth and Eighth Amendments, those rights were not clearly established at the time of their detention and alleged torture. Id.
Amendment. It is unclear, however, how this claim differs from the plaintiffs’ first claim that the defendants violated the Fifth Amendment by engaging in torture. Although an individual not yet convicted of a crime must challenge his treatment or the conditions of his confinement under the Due Process Clause of the Fifth or Fourteenth Amendments rather than the Eighth Amendment, see City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007), rev’d on other ground sub nom. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (complaint failed to plead sufficient facts to state claim for relief); Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259 n.1 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997), he does not create two separate claims under either Due Process Clause by alleging both torture and cruel and unusual punishment.

13
at 665-67. After Rasul I issued, the Supreme Court reversed our Boumediene decision and held the Suspension Clause extends to nonresident aliens detained at Guantanamo Bay. Boumediene v. Bush, 553 U.S. 723 (2008). The Court then vacated our judgment in Rasul I and remanded for further consideration in light of its intervening decision in Boumediene. Rasul v. Myers, 129 S. Ct. 763 (2008).
On remand, we reaffirmed our holding that the defendants were protected by qualified immunity and explained it was not necessary to determine whether the Fifth and Eighth Amendments applied to the plaintiffs.11 Qualified immunity shields a government official from civil liability if his conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Even if the Rasul plaintiffs could assert rights under the Fifth and Eighth Amendments, we explained, Boumediene did not alter the conclusion that those rights were not clearly established at the time of the defendants’ challenged conduct. Rasul II, 563 F.3d at 529-30. The plaintiffs argue, as did the Rasul plaintiffs, that the defendants should have known (that is, a reasonable person would have known) their alleged misconduct violated the Constitution because it “has long been settled that the
11 Another intervening Supreme Court decision—Pearson v. Callahan, 129 S. Ct. 808, 815-16, 818 (2009)—held that a court can decide a constitutional right was not clearly established without first deciding whether the right exists. Before Pearson, courts followed the Saucier procedure, under which they first had to determine whether the alleged facts made out a violation of a constitutional or statutory right before deciding whether the right was clearly established at the time of the alleged violation. Id. at 815-16; see also Saucier v. Katz, 533 U.S. 194, 201 (2001).

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Constitution forbids the torture of any detainee.”12 Appellants’ Br. 23; see Rasul I, 512 F.3d at 666. The proper inquiry, however, is not whether the Constitution prohibits torture but “whether the rights the plaintiffs press under the Fifth and Eighth Amendments were clearly established at the time of the alleged violations.” Rasul I, 512 F.3d at 666 (emphasis in original). As the Supreme Court made clear in Boumediene, it had “never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.” 553 U.S. at 770; see also Rasul II, 563 F.3d at 530 (“At the time of [the plaintiffs’] detention, neither the Supreme Court nor this court had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights—under the Fifth Amendment, the Eighth Amendment, or otherwise.”). As it was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens detained at Guantanamo Bay—where the Supreme Court has since held the Suspension Clause applies—it plainly was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens held in Iraq and Afghanistan—where no court has held any constitutional right applies. As we explained in Rasul II, the Supreme Court in Boumediene “explicitly confined its constitutional holding ‘only’ to the extraterritorial reach of the Suspension Clause” and “disclaimed any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause.” 563 F.3d at 529 (quoting Boumediene, 553 U.S. at 795). As in
12 The plaintiffs also cite several “military laws, regulations, and training materials” prohibiting torture which, they contend, “reinforce the constitutional prohibition against torture and serve to put military commanders and personnel on notice of the sorts of actions that the Constitution prohibits.” Appellants’ Br. 24-25.

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Rasul II, therefore, the defendants here are protected from the plaintiffs’ constitutional claims by qualified immunity.13
The plaintiffs contend the Supreme Court in Boumediene adopted a flexible approach that leaves open the possibility of the extraterritorial application of constitutional provisions other than the Suspension Clause and claim that our decision in Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), accurately interprets Boumediene. Because the three alien Bagram detainees in Al Maqaleh sought habeas corpus relief, the decision addresses only the applicability of the Suspension Clause. We nonetheless noted that the Supreme Court’s Boumediene decision “explored the more general question of extension of constitutional rights and the concomitant constitutional restrictions on governmental power exercised extraterritorially and with respect to noncitizens.” Id. at 93. The court discussed three factors the Supreme Court identified as relevant in determining the reach of the Suspension Clause: “(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.” Id. at 94 (quoting Boumediene, 553 U.S. at 766). The first factor weighed in favor of extending the habeas corpus right to the three because, like the Boumediene detainees, they were aliens held by the American military. Id. at 95-96. According to the court, the
13 Even the plaintiffs recognize this and ask us to “abandon [our] holdings to the contrary.” Appellants’ Br. 23. “That argument is misplaced because we are, of course, bound to follow circuit precedent absent contrary authority from an en banc court or the Supreme Court.” United States v. Carson, 455 F.3d 336, 384 n.43 (D.C. Cir. 2006) (per curiam), cert. denied, 549 U.S. 1246 (2007).

16
three received less due process than the Boumediene detainees.14 Id. The second and third factors, however, weighed against them. Distinguishing Guantanamo Bay—where, according to the Supreme Court, the United States has de facto sovereignty, Boumediene, 553 U.S. at 755—the court concluded “the same simply is not true with respect to Bagram.” Al Maqaleh, 605 F.3d at 97. The United States has not demonstrated an intent to exercise sovereignty over Bagram “with permanence.” Id. Moreover, “Bagram, indeed the entire nation of Afghanistan, remains a theater of war.” Id. The same is true of Iraq. The Supreme Court expressly stated in Boumediene that, if Guantanamo Bay “were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.” 553 U.S. at 770. We concluded “that under both Eisentrager and Boumediene, the [habeas corpus] writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.” Al Maqaleh, 605 F.3d at 98. Thus, even under the plaintiffs’ view of Boumediene, we have nonetheless held that the Suspension Clause does not apply to Bagram detainees. They offer no reason—and we see none
14 The Al Maqaleh detainees’ status was reviewed by the Unlawful Enemy Combatant Review Board (UECRB), not the Combatant Status Review Tribunal (CSRT) that reviewed the Boumediene detainees’ status. 605 F.3d at 96. According to the court, “proceedings before the UECRB afford[ed] even less protection to the rights of detainees in the determination of status than was the case with the CSRT.” Id. The Al Maqaleh detainees had no representation while the Boumediene detainees had “personal representative[s].” Al Maqaleh v. Gates, 604 F. Supp. 2d 205, 227 (D.D.C. 2009), rev’d, 605 F.3d 84 (D.C. Cir. 2010). Additionally, the Al Maqaleh detainees were not permitted to speak in their defense but could submit only a written statement and were not informed of the evidence against them so that they lacked a meaningful opportunity to rebut the evidence. Id.

17
ourselves—why the plaintiffs’ Fifth and Eighth Amendment claims would be any stronger than the Suspension Clause claims of the Bagram detainees.
The plaintiffs urge us to follow the now-optional Saucier procedure and decide, first, whether they have “alleged a deprivation of a constitutional right at all,” Pearson, 129 S. Ct. at 816 (internal quotation marks omitted), although we may ultimately conclude any such right was not clearly established at the time of the defendants’ alleged misconduct.15 The Saucier procedure, however, is not appropriate in most cases. Often “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” Id. In such a case, deciding the existence of the constitutional right vel non is “an essentially academic exercise,” id., that “runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality . . . unless such adjudication is unavoidable,” id. at 821 (ellipsis in original) (internal quotation marks and citations omitted), and results in the “substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case,” id. at 818. The Saucier approach can also preclude an affected party from obtaining appellate review of a decision that could significantly affect its future actions. Id. at 820. If a court decides that the defendant
15 We recognize that the Saucier approach is “often beneficial” and helps “promote[] the development of constitutional precedent.” Pearson, 129 S. Ct. at 818. As the Supreme Court explained, in some cases “there would be little if any conservation of judicial resources to be had” by deciding only the “clearly established” prong. Id. For instance, it sometimes can be “difficult to decide whether a right is clearly established without deciding precisely what the constitutional right happens to be.” Id. (quotation marks and citation omitted). In other cases, the explanation that a right was not clearly established “may make it apparent that [the allegations] do not make out a constitutional violation at all.” Id.

18
violated the plaintiff’s constitutional right but is entitled to qualified immunity because the right was not clearly established at the time, the “prevailing” defendant presumably would not be able to appeal the adverse constitutional holding. Id. (citing Kalka v. Hawk, 215 F.3d 90, 96 n.9 (D.C. Cir. 2000) (“Normally, a party may not appeal from a favorable judgment.”)); cf. Camreta v. Greene, 131 S. Ct. 2020, 2028-33 (2011) (official who prevails on qualified immunity in district court may not be able to obtain appellate review, notwithstanding availability of certiorari review to official who prevails on qualified immunity on appeal). As in Rasul II, we believe “[c]onsiderations of judicial restraint favor exercising the Pearson option with regard to [the] plaintiffs’ Bivens claims.” 563 F.3d at 530.
In Rasul II we had an alternative basis—apart from qualified immunity—on which to dismiss the plaintiffs’ Bivens claims—that “federal courts cannot fashion a Bivens action when ‘special factors’ counsel against doing so.” 563 F.3d at 532 n.5. We determined the “danger of obstructing U.S. national security policy is one such factor” that counsels against allowing a Bivens claim to proceed.16 Id. The same rationale applies here.17 The district court correctly concluded that allowing a Bivens action to be brought against American military officials engaged in war would disrupt and hinder the ability of our armed forces “to act decisively and without hesitation in defense of our liberty and national interests.” Detainees Litig., 479 F. Supp. 2d at 105. The Supreme Court long ago recognized as much in Eisentrager:
16 We concluded that this alternative rationale was “also unaffected by the Supreme Court’s Boumediene decision.” 563 F.3d at 532 n.5.
17 Again, the plaintiffs urge us to “abandon” our holding in Rasul II on this point as well. Appellants’ Br. 35.

19
Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.
339 U.S. 763, 779 (1950). And in Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985), our court noted that “the special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad.” In Sanchez-Espinoza, Nicaraguan citizens, none of whom resided in the United States, sued, inter alia, the President, the CIA director, the then-current as well as former secretaries of state and the then-secretary of defense alleging they had “authorized, financed, trained, directed and knowingly provided substantial assistance” to Nicaraguan rebels who engaged in “summary execution, murder, abduction, torture, rape, wounding, and the destruction of private property and public facilities.” Id. at 205 (quoting Am. Compl. ¶¶ 31, 81). We concluded that “the danger of foreign citizens’ using the courts in [such situation] to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist.” Id. at 209. As in Rasul II, we see no basis for distinguishing this case from Sanchez-Espinoza. Accordingly, even if the defendants were not shielded by qualified immunity and the plaintiffs could claim the protections

20
of the Fifth and Eighth Amendments, we would decline to sanction a Bivens cause of action because special factors counsel against doing so.
B. The ATS Claims
Rasul II also governs our resolution of the plaintiffs’ ATS claims alleging violations of the law of nations. In addition to their Bivens claims, the Rasul plaintiffs “brought three claims for violations of the law of nations pursuant to the [ATS] based on the defendants’ alleged infliction of ‘prolonged arbitrary detention,’ ‘torture,’ and ‘cruel, inhuman or degrading treatment.’ ”18 Rasul I, 512 F.3d at 654 (citations omitted). We determined the defendants’ alleged tortious conduct—“the detention and interrogation of suspected enemy combatants”—was “incidental to [their] legitimate employment duties” because it was “the type of conduct the defendants were employed to engage in.” Id. at 658-59. Because the defendants had acted within the scope of their employment, we held the ATS claims “were properly restyled as claims against the United States that are governed by the FTCA” and upheld their dismissal for failure to exhaust administrative remedies.19 Id. at 660-61 (internal quotation marks and brackets omitted). The plaintiffs here bring similar claims against similar (and, in the case of defendant Rumsfeld, identical) defendants. And like the
18 Specifically, the Rasul plaintiffs alleged “they were beaten, shackled in painful stress positions, threatened by dogs, subjected to extreme temperatures and deprived of adequate sleep, food, sanitation, medical care and communication.” Rasul I, 512 F.3d at 654.
19 In Rasul II, we stated that we could “see nothing in the Supreme Court’s [Boumediene] decision that could possibly affect our disposition of” the plaintiffs’ ATS claims alleging violations of the law of nations and “therefore reinstate[d] our judgment” with respect to those claims. 563 F.3d at 528-29. The portion of Rasul I that treats the ATS claims, therefore, remains controlling law.

21
Rasul defendants who, we held, were acting within the scope of their employment, the defendants here—who engaged in the same conduct—were acting within the scope of their employment as well. See id. at 654-61. The plaintiffs argue the Westfall Act does not cover “egregious torts that violate jus cogens norms” because the Act grants immunity for a “ ‘negligent or wrongful act or omission’ ” only. Appellants’ Br. 46 (quoting 28 U.S.C. § 2679(b)(1)). The plaintiffs argue “wrongful” is ambiguous and should be interpreted in light of the Act’s legislative history which, the plaintiffs contend, reveals “wrongful” was not intended to encompass egregious torts that violate jus cogens norms. We explicitly rejected this argument in Rasul I, where, while acknowledging the plaintiffs had “plainly alleged ‘seriously criminal’ conduct,” we explained that “the allegations of serious criminality do not alter our conclusion that the defendants’ conduct was incidental to authorized conduct.” 512 F.3d at 659-60. Accordingly, the district court correctly held that the Westfall Act applied and correctly substituted the United States as the defendant under the FTCA.20 The FTCA “required the plaintiffs to file an administrative claim with either the Department of Defense (DoD) or the appropriate military department before bringing
20 The plaintiffs also challenge the district court’s holding that the defendants acted within the scope of their employment. They contend that, “[a]s a matter of law, torture can never fall within the scope of employment of the U.S. Secretary of Defense and high-ranking U.S. Army commanders.” Appellants’ Br. 56. They nonetheless recognize the district court’s ruling is mandated by our precedent and “maintain the issue here [only] to preserve it.” Id. They “respectfully submit that this Court’s decisions . . . in Rasul II and Harbury [v. Hayden, 522 F.3d 413 (D.C. Cir. 2008),] are not well-founded and should be reconsidered.” Id. at 57. We are of course bound by circuit precedent. United States v. Carson, 455 F.3d 336, 384 n.43 (D.C. Cir. 2006) (per curiam) (“[W]e are . . . bound to follow circuit precedent absent contrary authority from an en banc court or the Supreme Court.”).

22
suit.” Id. at 661 (citing 28 C.F.R. § 14.1). “[W]e view the failure to exhaust administrative remedies as jurisdictional.” Id. As in Rasul, the “record is devoid . . . of any suggestion” the plaintiffs filed an administrative claim with DoD or a military department. Id. The district court thus properly dismissed the ATS claims under FRCP 12(b)(1) for lack of subject matter jurisdiction.
The plaintiffs raise one argument not addressed in Rasul I or II. The Westfall Act does not immunize a federal employee/official from a suit “brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). The plaintiffs claim the ATS, under which they brought their claims for violations of the law of nations, is a United States statute that permits a private cause of action against a federal employee/official. Therefore, the plaintiffs contend, their claims fall within an exception to the Westfall Act and they should be permitted to proceed against the individual defendants, not the United States.
The district court in Rasul I rejected this argument, explaining that the ATS21 “is strictly a jurisdictional statute” that “does not confer rights nor does it impose obligations or duties that, if violated, would trigger the Westfall Act’s statutory exception.”22 414 F. Supp. 2d 26, 37-38 (D.D.C. 2006). The
21 The district court called it the Alien Tort Claims Act (ATCA), 414 F. Supp. 2d at 37-38, another name for the ATS. See Estate of Amergi ex rel. Amergi v. Palestinian Auth., 611 F.3d 1350, 1356 n.5 (11th Cir. 2010) (“The [ATS] is also known as the Alien Tort Claims Act (ATCA), and the Alien Tort Act (ATA).” (internal quotation marks omitted)).
22 We did not reach the issue on appeal because the plaintiffs did not appeal that part of the district court’s decision. See Rasul I, 512 F.3d at 661 n.11.

23
Supreme Court has also rejected a similar argument. In United States v. Smith, 499 U.S. 160 (1991), a former Army sergeant and his wife sued the Army doctor who delivered their baby in Italy, alleging the doctor’s negligence caused brain damage to the baby. The United States sought to substitute itself as the defendant pursuant to the Gonzalez Act, 10 U.S.C. § 1089, which “provide[d] that in suits against military medical personnel for torts committed within the scope of their employment, the Government is to be substituted as the defendant and the suit is to proceed against the Government under the FTCA.” Smith, 499 U.S. at 162-63. While the plaintiffs’ appeal was pending, the Congress enacted the Westfall Act. The United States then relied on the Westfall Act, rather than the Gonzalez Act, to substitute itself as the defendant and the Supreme Court accordingly considered the Westfall Act’s applicability. At the time, two courts of appeals had held that the Gonzalez Act protected “only military medical personnel who commit torts within the United States and not those committing torts abroad.” Id. at 171. The Smith plaintiffs argued their claim was therefore not precluded by the Gonzalez Act and that their claim fell within the statutory exception to the Westfall Act because the Gonzalez Act “authorized” their claim. The Supreme Court rejected the plaintiffs’ argument. It explained that it “need not decide whether a tort claim brought under state or foreign law could be deemed authorized by the Gonzalez Act” because the plaintiffs’ contention “that a claim for malpractice involves ‘a violation of’ the Gonzalez Act[]is without merit. Nothing in the Gonzalez Act imposes any obligations or duties of care upon military physicians. Consequently, a physician allegedly committing malpractice under state or foreign law does not ‘violate’ the Gonzalez Act.” Id. at 174.
More importantly, the Supreme Court has clarified that “the ATS is a jurisdictional statute creating no new causes of action.” Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004); id. at 729

24
(“All Members of the Court agree that § 1350 is only jurisdictional.”). Thus, as with the Gonzalez Act, nothing in the ATS “imposes any obligations or duties of care upon” the defendants. Smith, 499 U.S. at 174; accord Bancoult v. McNamara, 370 F. Supp. 2d 1, 9 (D.D.C. 2004) (“The plain language of [the ATS] . . . does not confer rights nor does it impose obligations or duties that, if violated, would trigger the [Westfall Act’s statutory violation] exception.”), aff’d on other grounds, 445 F.3d 427 (D.C. Cir. 2006) (dismissing complaint on political question ground), cert. denied, 549 U.S. 1166 (2007); Schneider v. Kissinger, 310 F. Supp. 2d 251, 266-67 (D.D.C. 2004) (dismissing complaint on political question ground but holding, alternatively, that ATS “cannot be violated for purposes of [Westfall Act’s statutory violation exception]”), aff’d on other grounds, 412 F.3d 190 (D.C. Cir. 2005) (affirming dismissal as political question), cert. denied, 547 U.S. 1069 (2006). The plaintiffs ask us to ignore the Supreme Court’s Sosa decision.23 We can no more ignore Supreme Court precedent than could the district court. Accordingly, we hold that the plaintiffs’ claim under the ATS alleges a violation of the law of nations, not of the ATS, and therefore does not violate a statute of the United States within the meaning of section 2679(b)(2)(B).24
23 The plaintiffs claim the statutory violation exception language of the Westfall Act is ambiguous and we must therefore look to legislative history to determine its meaning. Because Sosa issued after the ATS was enacted, the plaintiffs contend, it “does not shed light on what Congress meant to include in the statutory violation exception.” Appellants’ Br. 53.
24 Although the Supreme Court in Sosa stated that “the ATS is a jurisdictional statute creating no new causes of action,” it nonetheless concluded “the statute was intended to have practical effect the moment it became law” and explained that the statute’s jurisdictional grant “is best read as having been enacted on the understanding that

25
Notwithstanding Sosa’s plain statement that “the ATS is a jurisdictional statute,” 542 U.S. at 724, the dissent believes the ATS incorporates the law of nations and that a violation of the law of nations thus constitutes a violation of the ATS sufficient to satisfy the Westfall Act’s statutory violation exception. See Dissenting Op. at 17-25. The respondent in Sosa advanced a similar argument—“that the ATS was intended not simply as a jurisdictional grant, but as authority for the creation of a new
the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time [the ATS was enacted in 1789].” 542 U.S. at 724. The Court recognized only three violations—violation of safe conducts, infringement of the rights of ambassadors and piracy—but assumed that nothing “categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law.” Id. at 724-25.
At the same time the Court held a new cause of action could be recognized under the ATS, however, it cautioned courts against doing so, noting that a “series of reasons argue for judicial caution when considering the kinds of claims that might implement the jurisdiction conferred by the [ATS].” Id. at 725. The Court noted that its “general practice has been to look for legislative guidance before exercising innovative authority over substantive law” and stated it “would be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow for much of the prior two centuries.” Id. at 726. The Court emphasized “that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.” Id. at 727 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001); Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001)). For that reason, the Court found itself “reluctant to infer . . . a private cause of action where the statute does not supply one expressly.” Id. Additionally, “the potential implications for the foreign relations of the United States of recognizing [a new cause of action under the ATS] should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Id.

26
cause of action for torts in violation of international law.” 542 U.S. at 713. The Supreme Court rejected “that reading [of the ATS as] implausible,” explaining that, “[a]s enacted in 1789, the ATS gave the district courts ‘cognizance’ of certain causes of action, and the term bespoke a grant of jurisdiction, not power to mold substantive law.” Id. Moreover, the Court noted, the positioning of the ATS “in § 9 of the Judiciary Act, a statute otherwise exclusively concerned with federal-court jurisdiction, is itself support for its strictly jurisdictional nature.”25 Id. The Court therefore found it “unsurprising . . . that an authority on the historical origins of the ATS has written that ‘section 1350 clearly does not create a statutory cause of action,’and that the contrary suggestion is ‘simply frivolous.’ ” Id. (quoting William R. Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 (1986)); see also Casto, supra, at 479 (“The [ATS] is purely jurisdictional, and the first Congress undoubtedly understood this to be the case.”).
The dissent’s citations to Sosa—and to Filartiga v. PenaIrala, 630 F.2d 876 (2d Cir. 1980)—confirm that the ATS is a jurisdictional statute only and that any claim brought under the ATS alleges a violation of the law of nations and the common law, not of the ATS itself. See Dissenting Op. at 3-4, 12, 18-19.
The dissent contends that Supreme Court precedent establishing “that the domestic law of the United States recognizes the law of nations,” Sosa, 542 U.S. at 729-30 (citing
25 In this respect, the ATS is easily distinguishable from section 301(a) of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a). See Dissenting Op. at 24. Section 301(a) is part of an extensive statutory enactment and, although it speaks only to federal jurisdiction, other provisions of the LMRA establish substantive legal duties and rights. See, e.g., 29 U.S.C. §§ 186-87. The ATS, by contrast, is a stand-alone grant of jurisdiction only.

27
cases), “indicates that section 1350 itself effectively incorporates the law of nations,” Dissenting Op. at 19. The Sosa Court’s statement “that the domestic law of the United States recognizes the law of nations,” however, is best understood to refer to the common law of the United States, not its statutory law. The most recent precedent the Court cited to support its statement confirms this understanding. See Sosa, 542 U.S. at 730 (“ ‘[I]nternational disputes implicating . . . our relations with foreign nations’ are one of the ‘narrow areas’ in which ‘federal common law’ continues to exist.” (ellipsis in original) (emphasis added) (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981))); see also Dissenting Op. at 19 (quoting William A. Fletcher, International Human Rights in American Courts, 93 Va. L. Rev. 653, 665 (2007)).
Sosa unequivocally holds that the ATS is a jurisdictional statute only. Sosa, 542 U.S. at 729 (“All Members of the Court agree that § 1350 is only jurisdictional.”). A claim brought under the ATS therefore does not allege “a violation of a statute of the United States” satisfying the Westfall Act exception. 28 U.S.C. § 2679(b)(2)(B).
C. The Declaratory Judgment Claim
The plaintiffs also seek a declaration that the acts alleged in their amended complaint are unlawful and violate the U.S. Constitution, military rules and guidelines and the law of nations. Am. Compl. ¶ 264(a). As discussed supra, however, the plaintiffs have not alleged a cognizable cause of action and therefore have no basis upon which to seek declaratory relief. Nor does the Declaratory Judgment Act (DJA), 28 U.S.C. § 2201, provide a cause of action. It is a “well-established rule that the Declaratory Judgment Act ‘is not an independent source of federal jurisdiction.’ Rather, ‘the availability of [declaratory] relief presupposes the existence of a judicially remediable right.’ ” C&E Servs., Inc. of Washington v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002) (quoting Schilling v.

28
Rogers, 363 U.S. 666, 677 (1960)); see also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (“The operation of the Declaratory Judgment Act is procedural only. Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction.” (internal quotation marks and citation omitted)).
For the foregoing reasons, we affirm the district court’s judgment of dismissal.
So ordered.

EDWARDS, Senior Circuit Judge, dissenting: The plaintiffappellants in this case allege that they were subjected to acts of torture and abuse while being detained at U.S. military facilities in Afghanistan and Iraq. Each appellant was eventually released without being charged with a crime. Appellants filed suit, alleging civil claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Alien Tort Statute (“section 1350” or “ATS”), 28 U.S.C. § 1350, as well as claims for declaratory relief. Following a motions hearing, the District Court granted the appellees’ separate motions to dismiss. See In re Iraq and Afghanistan Detainees Litig. (“Detainees Litig.”), 479 F. Supp. 2d 85 (D.D.C. 2007). Although I do not disagree with the court’s judgment dismissing appellants’ Bivens claims and their claims for declaratory relief, I dissent from the court’s disposition of appellants’ claims under section 1350.
Section 1350 says that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations.” In my view, the Supreme Court’s decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), confirms that appellants may pursue a cause of action under section 1350 for deliberate torture perpetrated under color of official authority, and the Westfall Act does not bar these claims. It is ironic that, under the majority’s approach, United States officials who torture a foreign national in a foreign country are not subject to suit in an action brought under section 1350, whereas foreign officials who commit official torture in a foreign country may be sued under section 1350.
* * * *
The Government’s interpretation of Sosa, which is endorsed by the majority, is strikingly incomplete. The Government first cites a passage from Sosa in which the Court says that the ATS “is a jurisdictional statute creating no new causes of action.” Appellees’ Br. at 47 (quoting Sosa, 542 U.S. at 724). From this, the Government concludes that, “[u]nder Sosa, it is indisputable

2
the ATS is not a federal statute that is capable of being violated.” Id. at 48.
The Court’s decision in Sosa is much more nuanced than the Government would have it. And Sosa surely does not foreclose actions under the ATS seeking redress for official torture. Rather, contrary to the Government’s claims, Sosa makes the following critical points:
All Members of the Court agree that § 1350 is only jurisdictional. We also agree, or at least JUSTICE SCALIA [in his concurrence] does not dispute, that the jurisdiction was originally understood to be available to enforce a small number of international norms that a federal court could properly recognize as within the common law enforceable without further statutory authority.
. . .
Whereas JUSTICE SCALIA sees . . . developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today. Erie [Railroad Co. v. Tompkins, 304 U.S. 64 (1938),] did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way.
. . .
We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some

3
metaphysical cachet on the road to modern realism. Later Congresses seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and for practical purposes the point of today’s disagreement has been focused since the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984). Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.
542 U.S. at 729-31 (citation omitted) (emphasis added). As this court recently noted in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), it is clear that Sosa “opened the door a crack to the possible recognition of new causes of action under international law (such as, perhaps, torture) if they were firmly grounded on an international consensus.” Id. at 14.
It is particularly noteworthy that the Supreme Court’s opinion in Sosa says: “The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).” 542 U.S. at 731. Filartiga held that
deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. Thus, whenever an alleged torturer is found and served with process by an alien within our borders, § 1350 provides federal jurisdiction.
630 F.2d at 878. The Filartiga court construed section 1350 “not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized

4
by international law.” Id. at 887; see also Sosa, 542 U.S. at 730 (stating that “the Court is bound by the law of nations which is a part of the law of the land”) (quoting The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) (Marshall, C.J.)); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 780 (D.C. Cir. 1984) (Edwards, J., concurring) (“[S]ection 1350 itself provides a right to sue for alleged violations of the law of nations.” (footnote omitted)).
Filartiga is firm in its holding that “there are few, if any, issues in international law today on which opinion seems to be so united as the limitations on a state’s power to torture persons held in its custody.” Id. at 881. This court recently echoed this view in Saleh, noting that “torture committed by a state is recognized as a violation of a settled international norm.” 580 F.3d at 15. The Government does not suggest otherwise. So it is clear beyond debate that official torture violates the law of nations.
The fact that the plaintiffs in this case have alleged that United States officials committed torture does not counsel against a cause of action under the ATS. The statute does not exclude claims against state actors. And there is no evidence that recent congressional statutes addressing torture and detainee treatment, respectively, intended to preempt suits under section 1350. In fact, there is evidence to the contrary.
Only one question remains: Does the Federal Employees Liability Reform and Tort Compensation Act of 1988 (“Westfall Act”), Pub. L. No. 100-694, 102 Stat. 4563, bar appellants’ ATS claims from going forward? After careful consideration of Sosa and the case law construing the Westfall Act, I am convinced that the Westfall Act does not bar appellants’ claims. An action that is cognizable under section 1350 falls within the Westfall Act’s exception for “violation[s] of a statute of the United States under which such action[s] against an individual [are] otherwise authorized,” 28 U.S.C. § 2679(b)(2)(B). The Government argues that section 1350 cannot fall within this exception

5
because the ATS is merely a jurisdictional statute. Appellees’ Br. at 47. In my view, Sosa requires the opposite conclusion: Appellants’ claims arising under section 1350 must fall within the statutory exception to the Westfall Act, because the ATS is a federal statute that incorporates substantive international norms and thereby directly authorizes recovery for deliberate torture perpetrated under color of official authority.
The Government ignores the fact that section 1350, unlike the congressional grant of federal question jurisdiction, “was enacted on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims derived from the law of nations.” Sosa, 542 U.S. at 731 n.19. “Unlike section 1331, which requires that an action ‘arise under’ the laws of the United States, section 1350 does not require that the action ‘arise under’ the law of nations, but only mandates a ‘violation of the law of nations’ in order to create a cause of action.” Tel-Oren, 726 F.2d at 779 (Edwards, J., concurring). Section 1350 incorporates the law of nations – including the prohibition against deliberate torture perpetrated under color of official authority – that can be “violated” within the meaning of the section 2679(b)(2)(B) exception to the Westfall Act. I therefore conclude that, on the record before us, the District Court has jurisdiction over appellants’ complaint alleging official torture and the appellants have a viable cause of action. Consequently, the District Court erred when it dismissed appellants’ claims arising under section 1350.
I. BACKGROUND
A. The United States Has Consistently and Repeatedly Condemned the Use of Torture
“Torture has long been illegal” in our nation. 151 CONG. REC. 30,756 (2005) (statement of Sen. Graham). Domestically, torture, along with other punishments of “unnecessary cruelty,” has been proscribed as a violation of the Eighth Amendment

6
since the nineteenth century. Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citing Wilkerson v. Utah, 99 U.S. 130, 136 (1879)). Congress has also prohibited torture that occurs abroad, making such conduct a federal crime punishable by fines and up to 20 years of imprisonment, and even life imprisonment or death should the torture result in a fatality. 18 U.S.C. § 2340A. Congress further created a cause of action against any individual who commits torture “under actual or apparent authority, or color of law, of any foreign nation,” regardless of the victim’s nationality or the geographic location of the alleged acts. Torture Victim Protection Act (“TVPA”), Pub. L. No. 102-256, § 2(a), 106 Stat. 73, 73 (1992) (codified in 28 U.S.C. § 1350 (note)).
Within the context of a military conflict, Congress has declared, in both the Detainee Treatment Act of 2005 (“DTA”) and the Military Commissions Act of 2006 (“2006 MCA”), that “[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment,” DTA, Pub. L. No. 109-148, div. A, title X, § 1003(a), 119 Stat. 2680, 2739 (codified at 42 U.S.C. § 2000dd(a)); 2006 MCA, Pub. L. No. 109-366, § 6(c)(1), 120 Stat. 2600, 2635 (codified at 42 U.S.C. § 2000dd0(1)), and has further prohibited any “treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.” DTA, Pub. L. No. 109-148, div. A, title X, § 1002(a), 119 Stat. at 2739 (codified at 10 U.S.C. § 801 (note)). See also 18 U.S.C. § 2441 (making war crimes committed by or against a member of the U.S. Armed Forces or a U.S. national punishable by fine, imprisonment, and/or death, regardless of where the crime occurred).
The Executive Branch has been similarly resolute in its prohibition of torture. The United States signed the Convention

7
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”) in 1988. In 2000, the U.S. Department of State, with input from the Department of Justice and other federal departments and agencies, submitted its initial compliance report to the United Nations Committee Against Torture, which stated:
Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the [United Nations] Convention [Against Torture] constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.
Initial Report of the United States of America to the United Nations Committee Against Torture ¶ 6, U.N. DOC. CAT/C/28/Add.5 (Feb. 9, 2000).
Specifically with regard to military detainees, President George W. Bush, in a statement issued in 2004, affirmed that
America stands against and will not tolerate torture. . . . American personnel are required to comply with all U.S.

8
laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees. . . . Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere.
Statement on United Nations International Day in Support of Victims of Torture, 40 WEEKLY COMP. PRES. DOC. 1167, 116768 (June 26, 2004). In 2009, President Barack Obama, through an executive order, instructed that “[detainees] shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment).” Exec. Order No. 13,491, 3 C.F.R. 199, 200 (2009). See also id. at 200-01 (“Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3.”).
B. Official Torture Violates the Law of Nations
The United States’ condemnation of official torture is simply a reflection of a firmly established international norm: Torture perpetrated under color of official authority unequivocally violates the law of nations. Every circuit that has addressed the issue has concluded that official torture violates customary international law. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010); id. at 155 (Leval, J., concurring in the judgment); Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1250-53 (11th Cir. 2005) (per curiam); Kadic v. Karadžić, 70 F.3d 232, 243-44 (2d

9
Cir. 1995); Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994); Tel-Oren, 726 F.2d at 788 (Edwards, J., concurring); id. at 819-20 (Bork, J., concurring). Indeed, the Supreme Court in Sosa favorably cited the Second Circuit’s statement in Filartiga that “the torturer has become . . . an enemy of all mankind.” 542 U.S. at 732 (quoting Filartiga, 630 F.2d at 890); see also id. at 762 (Breyer, J., concurring) (“Today international law will sometimes similarly reflect not only substantive agreement as to certain universally condemned behavior but also procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior. That subset includes torture, genocide, crimes against humanity, and war crimes.” (citation omitted)).
International agreements signed by the United States support the conclusion that torture is a violation of customary international law. Article 2 of the Convention Against Torture provides that “[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent such acts of torture in any territory under its jurisdiction.” Art. II, para. 1, signed Apr. 18, 1988, S. TREATY DOC. NO. 100-20, 1465 U.N.T.S. 85; see also S. EXEC. REP. NO. 101-30, at 13 (1990) (noting that definition of torture in the Convention Against Torture “correspond[s] to the common understanding of torture as an extreme practice which is universally condemned”). In addition, the Geneva Convention of 1949, art. 3 (“Common Article 3”), prohibits torture “at any time and in any place” in an “armed conflict not of an international character.” See Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (explaining that the phrase “conflict not of an international character” was used in contradistinction to Geneva Convention Common Article 2’s application to conflicts between nations, such that Common Article 3 applies to the United States’ conflict with al Qaeda). Ever since the Vietnam War – the first war in which the United States had to consider the Geneva Convention’s application to prisoners in an insurgency environment – United States military

10
policy has been to apply Common Article 3 to all detainees upon capture. JAMES F. GEBHARDT, THE ROAD TO ABU GHRAIB: US ARMY DETAINEE DOCTRINE AND EXPERIENCE 120 (2005); see also William H. Taft, IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 YALE J. INT’L L. 319, 321 (2003) (“Terrorists forfeit any claim to POW status under the laws of armed conflict, but they do not forfeit their right to humane treatment – a right that belongs to all humankind, in war and in peace.”).
In sum, there is universal agreement “in the modern usage and practice of nations,” Filartiga, 630 F.2d at 883, that official torture violates the law of nations. Any court addressing torture does not write on a clean slate.
II. ANALYSIS
A. Appellants Have a Cause of Action Under Section 1350 To Seek Redress for Official Torture
The Alien Tort Statute, 28 U.S.C. § 1350, reads as follows: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The statute was passed by Congress as part of the Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77, but it was not much cited before the Second Circuit’s 1980 decision in Filartiga. See 630 F.2d 876 (holding that a cause of action for official torture is cognizable under section 1350). Filartiga led to the well-chronicled debate in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), between Judge Bork and me about the purpose and scope of section 1350.
In Tel-Oren, I argued that section 1350 provided both federal jurisdiction and “a right to sue for alleged violations of the law of nations,” i.e., customary international law. Id. at 780. I went on to emphasize

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the extremely narrow scope of section 1350 jurisdiction under the Filartiga formulation. Judge Kaufman characterized the torturer in Filartiga as follows: “Indeed, for purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.” Filartiga, 630 F.2d at 890. The reference to piracy and slave-trading is not fortuitous. Historically these offenses held a special place in the law of nations: their perpetrators, dubbed enemies of all mankind, were susceptible to prosecution by any nation capturing them.
Id. at 781.
Judge Bork viewed section 1350 differently. He argued that “it is essential that there be an explicit grant of a cause of action before a private plaintiff be allowed to enforce principles of international law in a federal tribunal.” Id. at 801 (Bork, J., concurring); see also id. (criticizing the Filartiga court’s assumed cause of action under section 1350 as “fundamentally wrong and certain to produce pernicious results”). Judge Bork also tentatively indicated that only offenses akin to the principal offenses against the law of nations cited by Blackstone – violation of safe conducts, infringement of the rights of ambassadors, and piracy – would be actionable under the statute. Id. at 813-16.
Both Judge Bork and I agreed that the function and scope of section 1350 needed clarification from the Supreme Court. Id. at 775 (Edwards, J., concurring) (“This case deals with an area of the law that cries out for clarification by the Supreme Court.”); id. at 823 (Bork, J., concurring) (“Since section 1350 appears to be generating an increasing amount of litigation, it is to be hoped that clarification will not be long delayed.”). The Supreme Court obliged in Sosa.

12
The issue before the Supreme Court in Sosa was whether respondent Alvarez, a Mexican citizen, could bring a claim against petitioner Sosa, a Mexican citizen hired by the Drug Enforcement Administration, for an alleged violation of the law of nations arising from his arbitrary detention. The Court first noted that “[section 1350] was intended as jurisdictional,” Sosa, 542 U.S. at 714, and that it “creat[ed] no new causes of action,” id. at 724. However, the Court did not stop there. Rather, it held that
[t]he jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time. . . . We assume, too, that no development in the two centuries from the enactment of § 1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant way amended § 1350 or limited civil common law power by another statute. Still, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.
Id. at 724-25 (citation omitted). The Court thus plainly rejected Judge Bork’s suggestion that only violations of the law of nations extant as of 1789 could be brought pursuant to the ATS. See id. at 729 (rejecting Justice Scalia’s argument that federal courts should be precluded from “recognizing any further international norms as judicially enforceable today”).

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Ultimately, the Court in Sosa rejected the respondent’s complaint on the ground that arbitrary detention did not violate a “norm of customary international law so well defined as to support the creation of a federal remedy.” Id. at 738. However, the Court surely did not foreclose a cause of action under section 1350 based on allegations of official torture. Quite the contrary. Sosa “opened the door” to causes of action – such as official torture – that are “firmly grounded on an international consensus.” Saleh, 580 F.3d at 14.
B. Torture Committed b y U.S. Officials Is Actionable Under the ATS
In this case, appellants allege that they were detained in U.S. military custody in Afghanistan and Iraq and subjected to “torture and other cruel, inhuman or degrading treatment or punishment” as a result of “the orders and derelictions of Defendant [Donald] Rumsfeld and high-level commanders.” Consolidated Am. Compl. for Declaratory Relief and Damages ¶¶ 1, 8 (Jan. 5, 2006), reprinted in Appendix 25, 27. The definition of torture is a matter of some controversy, see, e.g., Judith Resnik, Detention, The War on Terror, and the Federal Courts, 110 COLUM. L. REV. 579, 608-16 (2010), to be decided by the District Court in the first instance. Assuming, however, that the offenses articulated in appellants’ complaint constituted torture – which the Government does not dispute in its brief – I believe that appellants’ claims are actionable under section 1350.
Having established that the ATS grants a cause of action for clear and definite violations of the law of nations, the next question is whether an alien may sue a state actor under section 1350 to seek redress for torture. I can find nothing in the text or history of section 1350 to warrant excluding state actors from its coverage.

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The plain text of section 1350 – “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” – does not exclude lawsuits against state actors. There continues to be much debate about the origin and original purpose of section 1350. See, e.g., Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 COLUM. L. REV. 830 (2006); William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 HASTINGS INT’L & COMP. L. REV. 221 (1996); William R. Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467 (1986). However, I can find no compelling evidence in these or any other articles, the words of the statute itself, legislative materials, or the applicable case law to suggest that, in enacting section 1350, Congress made a “legislative judgment,” Sosa, 542 U.S. at 727, to preclude suits against U.S. officials brought under section 1350. The same holds true for Congress’ more recent enactments of the TVPA, the DTA, and the 2006 MCA. In fact, as noted in Part I, supra, both the Legislative and Executive Branches have long condemned torture perpetrated under color of official authority. Not only has torture been condemned, “[t]orture has long been illegal” in our nation. 151 CONG. REC. 30,756 (2005) (statement of Sen. Graham).
Although the Supreme Court has held that “special factors” counsel against a remedy for a constitutional violation under Bivens whenever the injury arises out of activity “incident to [military] service,” United States v. Stanley, 483 U.S. 669, 681 (1987) (internal quotation marks omitted); see also Chappell v. Wallace, 462 U.S. 296 (1983) (denying Bivens action to military personnel suing superior officers for injuries sustained in course of military service), this reasoning does not translate to actions brought pursuant to section 1350. This is so because, when section 1350 was enacted, Congress expressly gave the federal

15
courts jurisdiction over “[torts] committed in violation of the law of nations.” 28 U.S.C. § 1350. See Sosa, 542 U.S. at 724 (noting that section 1350 “is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time”). By contrast, constitutional claims under Bivens are not brought pursuant to any statute; the Supreme Court in Bivens “fashion[ed] a new, judicially crafted cause of action,” Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001), without relying on a congressional imprimatur akin to section 1350.
This court’s recent holding in Saleh that a private government contractor could not be liable for torture under section 1350 also does not control the disposition of this case. Unlike the appellants in the current case, who seek relief against state actors both in their individual and official capacities, the plaintiffs in Saleh were “unwilling to assert that the contractors [were] state actors.” 580 F.3d at 15. Saleh’s holding – that, “[a]lthough torture committed by a state is recognized as a violation of a settled international norm, that cannot be said of private actors,” id. – therefore has no bearing on the availability of a cause of action under section 1350 based on allegations of deliberate torture perpetrated under color of official authority.
The Saleh decision also points out that, although “Congress has frequently legislated on [the subjects of torture and war crimes] in such statutes as the TVPA, the Military Commissions Act, 10 U.S.C. § 948a et seq., the federal torture statute, 18 U.S.C. 2340-2340A, the War Crimes Act, 18 U.S.C. § 2441, and the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq.,” it has never created a cause of action for victims of torture committed by private contractors. 580 F.3d at 16. But again, these facts are of little moment here because this case involves state actors, not private contractors, and all of the statutes cited in Saleh were passed long after the Second Circuit’s landmark

16
decision in Filartiga recognized a cause of action for official torture under section 1350. Furthermore, neither the text of the aforementioned statutes nor the coinciding legislative histories indicate any intent by Congress to limit or preempt Filartiga’s interpretation of section 1350. In fact, there are congressional statements to the contrary. See S. REP. NO. 102-249, at 4 (1991) (noting that “[s]ection 1350 has other important uses and should not be replaced” by TVPA); H.R. REP. NO. 102-367, at 3 (1991), reprinted in 1992 U.S.C.C.A.N. 86 (same); 151 CONG. REC. 30,757 (2005) (statement of Sen. McCain) (noting that torturerelated provisions of the Detainee Treatment Act, which were re-passed as part of the 2006 MCA, “do not eliminate or diminish any private right of action otherwise available”).
Finally, although this court in Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206-07 (D.C. Cir. 1985), appeared to hold that no suits can be brought under section 1350 against U.S. officials in their personal capacities, Congress superseded this holding when it passed the Westfall Act. Sanchez-Espinoza is inapposite because the court dismissed the plaintiffs’ claims in that case on the ground of common law immunity. We know, however, that Congress may override a judicial decision resting on a common law principle. See City of Milwaukee v. Illinois, 451 U.S. 304, 315 (1981) (“[T]he question [is] whether the legislative scheme spoke directly to a question . . . not whether Congress had affirmatively proscribed the use of federal common law.” (quotation omitted)); see also id. at 317 (“[W]e start with the assumption that it is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law.” (footnote and internal quotation marks omitted)). Congress did just that when it passed the Westfall Act.
The Westfall Act “limits the relief available to persons injured by Government employees acting within the scope of their employment.” United States v. Smith, 499 U.S. 160, 161 (1991). However, what is significant here is that the Westfall

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Act excepts from its grant of immunity all civil actions “brought for a violation of the Constitution of the United States” or “brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. §§ 2679(b)(2)(A), (b)(2)(B).
In my view, Congress’ decision to overrule Westfall v. Erwin, 484 U.S. 292 (1988), and to codify the official immunity doctrine, including the section 2679(b)(2)(A) and (b)(2)(B) exceptions – which are explicit waivers of immunity – clearly preempted any preexisting common law applications of immunity with respect to the same matters. See Westfall, 484 U.S. at 300 (“Congress is in the best position to provide guidance for the complex and often highly empirical inquiry into whether absolute immunity is warranted in a particular context.”). There is no qualifier to section 2679(b)(2)(B) for situations in which “the basis for jurisdiction requires action authorized by the sovereign as opposed to private wrongdoing,” Sanchez-Espinoza, 770 F.2d at 207, nor is there any indication in the legislative history that Congress intended for such an exception to apply, H.R. REP. 100-700 (1988), reprinted in 1988 U.S.C.C.A.N. 5945. The availability of immunity from section 1350 actions therefore depends on the application of the Westfall Act.
C. Does the Westfall Act Bar Claims Asserting Official Torture?
Federal courts, with “great caution,” are authorized by statute to recognize a cause of action under section 1350 for “definite” and “accept[ed]” violations of the law of nations. Sosa, 542 U.S. at 732. The United States has consistently and repeatedly condemned the use of official torture. And it is undisputed that “deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” Filartiga, 630 F.2d at 878. However, in order

18
for appellants’ suits for official torture to proceed, they must fall within the Westfall Act’s exception for actions “brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B) (emphasis added).
The answer to the question whether the Westfall Act bars appellants’ claims turns on how section 1350 is viewed. There are at least two possible constructions of the ATS:
(1) the ATS is a statute that merely serves as a jurisdictional vehicle for violations of the law of nations; or
(2) the ATS itself incorporates the law of nations and furnishes jurisdiction over causes of action based on violations of definite and accepted principles under the law of nations.
If the latter construction is correct, it follows that section 1350 is capable of being violated. This is not an easy issue, and I would be naive to suggest otherwise. But because I conclude that the ATS incorporates the law of nations, I believe that it is a “statute” that fits the Westfall Act exception.
1. The ATS “Incorporates” the Law of Nations, and It Would Be Ironic To Conclude Otherwise
The Court in Sosa made clear that section 1350 differs from other jurisdictional statutes, such as 28 U.S.C. § 1331, because it allows courts to entertain claims derived from the law of nations. See Stephen Satterfield, Note, Still Crying Out for Clarification: The Scope of Liability Under the Alien Tort Statute After Sosa, 77 GEO. WASH. L. REV. 216, 221-22 (2008) (deeming section 1350 an “‘interactive’ jurisdictional statute” because it “laid the jurisdictional foundation that allowed the newly formed district courts to hear causes of action arising under the law of nations”). As the Court says in Sosa, “the ATS

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was meant to underwrite litigation of a narrow set of common law actions derived from the law of nations.” 542 U.S. at 721. Therefore, pursuant to the ATS, federal courts have an obligation to recognize causes of action based on clear and definite violations of the law of nations. And, as the Court noted, the law of nations may be enforced under section 1350 “without further statutory authority.” Id. at 729 (emphasis added).
In assessing the ATS, Sosa read the Court’s precedents to hold that
• “United States courts apply international law as a part of our own in appropriate circumstances”;
• “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”; and
• “The Court is bound by the law of nations which is a part of the law of the land.”
Sosa, 542 U.S. at 729-30 (brackets and citations omitted). As Judge William A. Fletcher has noted, “[t]he Court’s decision [in Sosa] . . . necessarily implies that the federal common law of customary international law is federal law in the supremacyclause sense.” William A. Fletcher, International Human Rights in American Courts, 93 VA. L. REV. 653, 665 (2007). To me, this indicates that section 1350 itself effectively incorporates the law of nations.
My line of analysis can be disputed. What cannot be doubted, however, is that it would be ironic to conclude that the Westfall Act bars claims resting on allegations of official torture. Under the majority’s approach, despite the fact that torture has long been illegal under United States law, see supra,

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a United States official who tortures a foreign national in a foreign country is not subject to suit in an action brought under section 1350, whereas a foreign official who tortures a foreign national in a foreign country may be sued under section 1350. E.g., Filartiga, 630 F.2d 876 (allowing action to proceed under section 1350 against Paraguayan official for torture committed in Paraguay).
This is a bizarre result, because, in enacting the Westfall Act, Congress apparently meant only to immunize common-law torts against federal officials. See H.R. REP. NO. 100-700, at 2 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5945 (noting that purpose of bill was to “provide immunity for Federal employees from personal liability for common law torts committed within the scope of their employment” (emphasis added)); id. at 6, reprinted in 1988 U.S.C.C.A.N. at 5950 (“Common law torts are the routine acts or omissions which occur daily in the course of business and which have been redressed in an evolving manner by courts for, at least, the last 800 years.”); see generally Karen Lin, Note, An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act, 108 COLUM. L. REV. 1718, 1740-45 (2008) (arguing that Congress only intended the Westfall Act to apply to state-law torts). Indeed, the Supreme Court’s decision in Westfall v. Erwin, 484 U.S. 292 (1988), which Congress specifically overruled in passing the Westfall Act, addressed immunity in the context of a common-law negligence suit against federal employees. There is no evidence to indicate that Congress meant to address or foreclose actions under section 1350 brought against federal officials for torture; clear violations of the law of nations, such as torture, are not akin to the types of “routine acts or omissions” that Congress appears to have had in mind. Therefore, it is ironic, to say the least, that “[t]he Westfall Act . . . has proved to be a practically ‘impenetrable shield’ for [ATS] claimants against individual U.S. officials.” Lin, 108 COLUM. L. REV. at 1736-37.

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2. Deconstructing the Westfall Act
The Westfall Act provides as follows:
The remedy against the United States provided by [the Federal Tort Claims Act] for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission occurred.
28 U.S.C. § 2679(b)(1) (emphases added). In sum, the Westfall Act prohibits civil suits against U.S. employees in their individual capacities arising out of the scope of their employment.
As noted above, however, the Westfall Act excepts from its grant of immunity all civil actions “brought for a violation of the Constitution of the United States” or “brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” 28 U.S.C. §§ 2679(b)(2)(A), (b)(2)(B).
Appellants argue that their section 1350 claims fall within the Westfall Act’s exception for “violation[s] of a statute of the United States under which such action[s] against an individual [are] otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). In response, the Government relies on the Supreme Court’s decision in United States v. Smith, 499 U.S. 160 (1991), to support the proposition that “this exception to the Westfall

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Act . . . [applies] only to federal statutes that provide both a cause of action and the substantive law which the employee is alleged to have violated.” Appellees’ Br. at 47 (emphasis in original). The Government also refers to the Ninth Circuit’s decision in Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003) (en banc), rev’d on other grounds sub nom. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
The Ninth Circuit concluded that “a claim under the [ATS] is based on a violation of international law, not of the [ATS] itself.” 331 F.3d at 631. Several district courts have followed this line of analysis. See, e.g., Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 114-16 (D.D.C. 2010); Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 37-38 (D.D.C. 2006) (issue not appealed); Bancoult v. McNamara, 370 F. Supp. 2d 1, 9-10 (D.D.C. 2004). In my view, these decisions are flawed, because they fail to acknowledge a critical distinction between the Gonzalez Act – the statute at issue in Smith – and section 1350.
The Gonzalez Act, like the Westfall Act, is a grant of federal employee immunity. Specifically, it provides that “in suits against military medical personnel for torts committed within the scope of their employment, the Government is to be substituted as the defendant.” Smith, 499 U.S. at 162 (citing 10 U.S.C. §§ 1089(a), (b)). In Smith, the plaintiffs sued a U.S. military physician for negligence in federal court, and the United States sought to substitute itself for the physician under the Westfall Act. The plaintiffs objected, arguing that their claim would have been permitted under the Gonzalez Act due to an implicit exception in that statute, and that, as a result, the claim should be exempted from Westfall Act immunity due to § 2679(b)(2)(B)’s exception for claims brought pursuant to a federal statute. The Supreme Court disagreed, holding that: “[n]othing in the Gonzalez Act imposes any obligations or duties of care upon military physicians. Consequently, a physician allegedly committing malpractice under state or

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foreign law does not ‘violate’ the Gonzalez Act.” Smith, 499 U.S. at 174.
The Court’s decision in Smith seems plainly inapposite here. In contrast to the Gonzalez Act, section 1350 is a statute enabling the federal courts to impose liability – not limit liability. Because section 1350 expressly incorporates the “law of nations,” it is a statute that can be violated.
3. The ATS Is Not a Jurisdictional Statute Akin to Section 1331 – It Is Therefore a “Statute” Sufficient To Satisfy the Westfall Act Exception
The Supreme Court emphasized in Sosa that, in comparing the ATS with the grant of federal-question jurisdiction, 28 U.S.C. § 1331, “[s]ection 1350 was enacted on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims derived from the law of nations; and we know of no reason to think that federal-question jurisdiction was extended subject to any comparable congressional assumption.” 542 U.S. at 731 n.19. Thus, if Congress repealed section 1350, federal courts would have no authority today to recognize common law causes of action for violations of customary international law, such as torture. See Mohamed v. Rajoub, 634 F.3d 604, 609-10 (D.C. Cir. 2011) (holding that appellant had no cause of action for violation of customary international law pursuant to 28 U.S.C. § 1331); see also Sosa, 542 U.S. at 712 (“[W]e think that at the time of enactment [of the ATS] the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.”). This makes section 1350 inherently different from other jurisdictional statutes, such as section 1331, and quite different from the Gonzalez Act. See generally Satterfield, 77 GEO. WASH. L. REV. at 221-22; William S. Dodge, Bridging Erie: Customary International Law in the U.S. Legal System After Sosa v. Alvarez-Machain, 12 TULSA J. COMP. & INT’L L. 87, 97-100 (2004) (analyzing Sosa’s

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discussion of congressional intent in enacting section 1350 as compared to section 1331).
Section 1350 parallels section 301(a) of the Labor Management Relations Act of 1947. Section 301(a) provides that
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). In Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448 (1957), the Supreme Court held that section 301(a) “authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements,” 353 U.S. at 451 – despite the fact that the plain text of this provision only speaks to federal jurisdiction. See also Sosa, 542 U.S. at 726 (citing Lincoln Mills as an example of a “haven” of federal common law). Just as section 301(a) provides jurisdiction and allows federal courts to create federal common law to enforce collective bargaining agreements, section 1350 provides jurisdiction and allows federal courts to create a federal common law remedy for definite and accepted violations of customary international law. In other words, it is section 1350, not international law, that gives federal courts the authority to enforce “international norms that a federal court c[an] properly recognize as within the common law enforceable without further statutory authority.” Sosa, 542 U.S. at 729 (emphasis added). This makes section 1350 “statutory authority” sufficient to satisfy the Westfall Act exception.

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It might be argued that Smith should be read to bar the Westfall Act exception from applying here, because section 1350 does not explicitly incorporate the law of nations. That was the view taken by the Ninth Circuit, even as that court acknowledged that the Gonzalez Act and section 1350 have very different purposes. See Alvarez-Machain, 266 F.3d at 1054. Although this argument is not without force, I disagree. Like section 301(a), as interpreted by the Court in Lincoln Mills, a federal statute may incorporate enforceable substantive rights even though the statute does not spell out the details of those rights. It is true that Sosa says that, since Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), “the general practice has been to look for legislative guidance before exercising innovative authority over substantive law,” Sosa, 542 U.S. at 726; but Sosa opened the door to the recognition of causes of action alleging wrongs – such as official torture – that violate the law of nations.
In short, I believe that Smith has no application here, because, as noted above, Smith was focused on the Gonzalez Act, not section 1350. Unlike the Gonzalez Act, section 1350 is a statute authorizing the federal courts to impose liability – not limit liability. I therefore conclude that section 1350 fits within the exception to the Westfall Act for “violation[s] of a statute of the United States under which such action[s] against an individual [are] otherwise authorized,” 28 U.S.C. § 2679(b)(2)(B). Accordingly, I dissent from the majority’s disposition of appellants’ claims under section 1350.
III. CONCLUSION
Twenty-seven years ago, in Tel-Oren, I said that “[t]his case deals with an area of the law that cries out for clarification by the Supreme Court.” 726 F.2d at 775. I say the same again here.

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I thought that the Court’s decision in Sosa afforded the lower federal courts the amplification and clarification necessary to understand how to process claims properly brought under section 1350. Obviously, I was mistaken. Some of my colleagues on the federal bench believe that the Westfall Act takes away what the ATS gives insofar as it allows causes of action against state actors who perpetrate torture under the color of official authority. Ultimately, after careful consideration of this difficult question, I think the decisions that have endorsed this approach are misguided.
Even if ATS actions against state actors were barred by principles of common law immunity, as this court thought in Sanchez-Espinoza, I believe that Congress vitiated that immunity when it enacted the Westfall Act. In my view, Congress’ decision to overrule Westfall v. Erwin, 484 U.S. 292 (1988), and to codify the official immunity doctrine, including the 28 U.S.C. § 2679(b)(2)(A) and (b)(2)(B) exceptions – which are explicit waivers of immunity – clearly preempted any preexisting common-law applications of immunity with respect to the same matters. And I believe that actions that are cognizable under section 1350 – such as allegations of official torture – fall within the Westfall Act’s exception for “violation[s] of a statute of the United States under which such action[s] against an individual [are] otherwise authorized.” Id. § 2679(b)(2)(B). On this last point, I agree with Judge Fletcher that Sosa “necessarily implies that the federal common law of customary international law is federal law in the supremacyclause sense.” William A. Fletcher, International Human Rights in American Courts, 93 VA. L. REV. 653, 665 (2007). For me this means that it is section 1350, not international law, that gives federal courts the authority to enforce international norms that a federal court can properly recognize as within the common law enforceable “without further statutory authority.” Sosa, 542 U.S. at 729 (emphasis added). As I see it, section 1350 is “statutory authority” sufficient to satisfy the Westfall

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Act exception. Some may disagree with my analysis, but at this point I cannot see why.
As I noted above, I think it is fair to say that the developing case law is ironic. As one commentator has noted:
In the past thirty years, the [ATS] has become an important instrument in advancing human rights claims before U.S. courts. In light of this exceptional statute, the Westfall Act’s effect of immunizing U.S. officials is doubly ironic: Not only has the country that led the way in allowing aliens to vindicate their rights against foreign officials maintained official immunity for its own officials even in the face of modern human rights accountability, but it has also done so unintentionally. As a result, U.S. courts apply a double standard of liability whereby foreign officials may face liability for international law violations while U.S. officials have absolute immunity for those same violations.
Karen Lin, Note, An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act, 108 COLUM. L. REV. 1718, 1719 (2008) (footnotes omitted).
I do not agree with the courts that have helped to create this irony by granting immunity to United States officials from ATS actions. It is hard to fathom why Congress would pass a law that makes all government officials – except our own – subject to liability for torture committed overseas. There is nothing to indicate that Congress meant to achieve this result when the Westfall Act was passed. Maybe it is time for Congress to give the judiciary better directions on this matter.