United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 2002 Decided June 28, 2002
No. 00-7244
Michael H. Price and
Roger K. Frey,
Appellees
v.
Socialist People's Libyan Arab Jamahiriya,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00975)
Arman Dabiri argued the cause and filed the briefs for
appellant.
James Cooper-Hill argued the cause for appellees. With
him on the brief were Andrew C. Hall and Nelson M. Jones
III.
Michael L. Martinez argued the cause for amicus curiae
Blake Kilburn on his behalf and as administrator of the
estate of Peter Kilburn. With him on the brief was Stuart H.
Newberger.
Before: Edwards and Sentelle, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Edwards.
Edwards, Circuit Judge: This case involves a lawsuit
brought under the Foreign Sovereign Immunities Act
("FSIA"), 28 U.S.C. ss 1330, 1602-1611 (1999), by two Ameri-
can citizens who sued the Socialist People's Libyan Arab
Jamahiriya ("Libya") for torture and hostage taking. Plain-
tiffs' lawsuit seeks cover under a recent amendment to the
FSIA which strips certain foreign states - including Libya -
of their sovereign immunity in American courts when they
engage in such conduct. See 28 U.S.C. s 1605(a)(7).
In response to plaintiffs' suit, Libya moved to dismiss,
claiming sovereign immunity and a lack of personal jurisdic-
tion. The District Court denied the motion to dismiss and
Libya now seeks review in this interlocutory appeal. Two
central questions have been raised on appeal: first, whether
plaintiffs have alleged facts that are legally sufficient to
revoke Libya's immunity under the FSIA; and, second,
whether the assertion of personal jurisdiction over Libya in
the manner specifically authorized by the FSIA violates the
Due Process Clause.
We hold, first, that plaintiffs have failed to state a claim for
hostage taking adequate to abrogate sovereign immunity and
establish subject matter jurisdiction. The allegations set
forth in the complaint do not come close to satisfying the
definition of "hostage taking" prescribed by the FSIA. We
hold further that the allegations supporting plaintiffs' torture
claim are not adequate to bring the case within the statutory
exceptions to foreign sovereign immuntiy. The complaint in
its present form is simply too conclusory to satisfy
s 1605(a)(7). In contrast to the hostage-taking claim, howev-
er, plaintiffs have at least intimated that they can allege facts
that might state a proper claim for torture under the FSIA.
Accordingly, we will remand the case to allow plaintiffs to
attempt to amend their complaint in an effort to satisfy the
statute's rigorous definition of torture. As a word of caution,
we note that there is a question as to whether the complaint
states a claim for relief upon which plaintiffs can recover;
although this matter is not properly before us on interlocu-
tory review, we are not foreclosing review of the issue in the
District Court.
Finally, we hold that Libya, as a foreign state, is not a
"person" within the meaning of the Due Process Clause. We
therefore conclude that the Constitution imposes no limitation
on the exercise of personal jurisdiction by the federal courts
over Libya.
I. Background
The facts and procedural history of this case are relatively
straightforward. Plaintiffs Michael Price and Roger Frey,
Americans who had been living in Libya in the employ of a
Libyan company, were arrested in March of 1980 after taking
pictures of various places in and around Tripoli. Libyan
government officials apparently believed that these photo-
graphs constituted anti-revolutionary propaganda, because
they would portray unfavorable images of life in Libya.
Price and Frey allege that, following their arrest, they
were denied bail and kept in a "political prison" for 105 days
pending the outcome of their trial. In their complaint, plain-
tiffs assert that they endured deplorable conditions while
incarcerated, including urine-soaked mattresses, a cramped
cell with substandard plumbing that they were forced to
share with seven other inmates, a lack of medical care, and
inadequate food. The complaint also asserts that the plain-
tiffs were "kicked, clubbed and beaten" by prison guards, and
"interrogated and subjected to physical, mental and verbal
abuse." Compl. at p 4. The complaint contends that this
incarceration was "for the purpose of demonstrating Defen-
dant's support of the government of Iran which held hostages
in the U.S. Embassy in Tehran, Iran." Id. at p 7.
Ultimately, plaintiffs were tried and acquitted of the crimes
with which they had been charged. After the verdict was
announced, however, the Libyan government retained their
passports for another 60 days while the prosecution pursued
an appeal, which is permitted under the Libyan Code of
Criminal Procedure. When this appeal was eventually reject-
ed, plaintiffs were permitted to leave Libya.
On May 7, 1997, Price and Frey commenced a civil action
against Libya in federal court. Their complaint asserted
claims for hostage taking and torture and sought $20 million
in damages for each man. Following receipt of process,
Libya filed a motion to dismiss, arguing that (1) the grant of
subject matter jurisdiction over plaintiffs' action was uncon-
stitutional, (2) the court's exercise of personal jurisdiction was
unconstitutional, and (3) plaintiffs had failed to state a claim
on which relief could be granted. The District Court rejected
each of these arguments, thus vitiating Libya's sovereign
immunity defense and allowing the court to assert both
subject matter jurisdiction over plaintiffs' claims and personal
jurisdiction over the defendant. Libya now pursues an inter-
locutory appeal.
II. Discussion
On appeal, Libya has not renewed its constitutional attack
on the court's subject matter jurisdiction. Instead, it claims
that the District Court erred in not resolving certain disputed
issues of fact, proceeding instead as if plaintiffs' factual
allegations had already been established. Libya also argues
that, even assuming that these facts were true, the plaintiffs
have failed to make out a valid claim either for torture or
hostage taking under the FSIA. Finally, Libya asserts that
the Due Process Clause does not permit an American court to
take jurisdiction over a foreign sovereign based on conduct
that has no connection to the United States save for the
nationality of the plaintiff.
A. Plaintiffs' Cause of Action
Before we address the issues arising under the FSIA and
the Due Process Clause, we first want to make it clear that
our decision today does not address or decide whether the
plaintiffs have stated a cause of action against Libya. The
parties appear to assume that a substantive claim against
Libya arises under the FSIA, but this is far from clear. The
FSIA is undoubtedly a jurisdictional statute which, in speci-
fied cases, eliminates foreign sovereign immunity and opens
the door to subject matter jurisdiction in the federal courts.
See First Nat'l City Bank v. Banco Para El Comercio
exterior de Cuba, 462 U.S. 611, 620 (1983). There is a
question, however, whether the FSIA creates a federal cause
of action for torture and hostage taking against foreign
states. See Roeder v. Islamic Republic of Iran, 195 F. Supp.
2d 140, 171-73 (D.D.C. 2002).
The "Flatow Amendment" to the FSIA confers a right of
action for torture and hostage taking against an "official,
employee, or agent of a foreign state," Pub. L. No. 104-208,
Div. A, Title I, s 101(c) (Sept. 30, 1996), codified at 28 U.S.C.
s 1605 (note); see Flatow v. Islamic Republic of Iran, 999
F. Supp. 1, 12-13 (D.D.C. 1998), but the amendment does not
list "foreign states" among the parties against whom such an
action may be brought. While it is possible that such an
action could be brought under the "international terrorism"
statute, 18 U.S.C. s 2333(a), cf. Boim v. Quranic Literacy
Inst., ___ F.3d ___, 2002 WL 1174558 (7th Cir. June 5, 2002),
no such claim has been raised in this case.
The question relating to plaintiffs' cause of action has yet to
be raised or addressed in the District Court, and it was
neither briefed nor argued by the parties during this appeal.
Therefore, although we flag the issue, we will leave its
disposition to the District Court in the first instance following
remand of this case. We will turn our attention now to the
matters before us, i.e., the issues arising under the FSIA and
the Due Process Clause.
B. The 1996 Amendments to the Foreign Sovereign Im-
munities Act
The FSIA provides a basis for asserting jurisdiction over
foreign nations in the United States. Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). The
statute, which was originally enacted in 1976, confers immuni-
ty on foreign states in all cases that do not fall into one of its
specifically enumerated exceptions. See 28 U.S.C. ss 1605,
1607; McKesson HBOC, Inc. v. Islamic Republic of Iran, 271
F.3d 1101, 1105 (D.C. Cir. 2001). These exceptions were
crafted in order to codify the "restrictive theory" of sovereign
immunity, under which immunity is generally limited to a
foreign state's public or governmental acts (jure imperii) but
withheld from its private or commercial acts (jure gestionis).
See H.R. Rep. No. 94-1487, at 7 (1976); Jackson v. People's
Republic of China, 794 F.2d 1490, 1493 (11th Cir. 1986).
The FSIA thus begins with a presumption of foreign sover-
eign immunity, 28 U.S.C. s 1604, qualified by a list of specific
circumstances in which that immunity is unavailable. These
include cases in which the state has waived its immunity, id.
at s 1605(a)(1), cases based upon various forms of commercial
activity, id. at s 1605(a)(2), takings of property in violation of
international law, id. at s 1605(a)(3), and torts committed in
the United States, id. at s 1605(a)(5). The original FSIA was
not intended as human rights legislation. See Jennifer A.
Gergen, Human Rights and the Foreign Sovereign Immuni-
ties Act, 36 Va. J. Int'l L. 765, 771 (1996). Thus, no matter
how allegedly egregious a foreign state's conduct, suits that
did not fit into one of the statute's discrete and limited
exceptions invariably were rejected. See, e.g., Saudi Arabia
v. Nelson, 507 U.S. 349 (1993) (holding that a claim arising
from the detention and torture of an American citizen in
Saudi Arabia was not "based upon a commercial activity
carried on in the United States"); Smith v. Socialist People's
Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996) (hold-
ing that Libya retained its sovereign immunity for the bomb-
ing of Pam Am 103 over Lockerbie, Scotland); Princz v. Fed.
Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994) (holding
that plaintiff could not recover for slave labor performed at
Nazi concentration camps, because Germany's conduct was
not commercial activity causing a "direct effect in the United
States" and did not constitute an implied waiver of sovereign
immunity); Siderman de Blake v. Republic of Argentina, 965
F.2d 699 (9th Cir. 1992) (holding that Argentina was immune
from liability for acts of torture committed by the ruling
junta); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775
n.1 (D.C. Cir. 1984) (Edwards J., concurring) (FSIA precludes
jurisdiction over Libya for armed attack on civilian bus in
Israel); cf. Amerada Hess, 488 U.S. at 436 ("[I]mmunity is
granted in those cases involving violations of international law
that do not come within one of the FSIA's exceptions.").
Under the original FSIA, therefore, terrorism, torture, and
hostage taking committed abroad were immunized forms of
state activity. See H.R. Rep. No. 103-702, at 4 (1994) ("[T]he
FSIA does not currently allow U.S. citizens to sue for gross
human rights violations committed by a foreign sovereign on
its own soil."). Indeed, in Nelson, the Supreme Court recog-
nized that conduct of the sort alleged in the present case -
"wrongful arrest, imprisonment, and torture" - amounted to
abuses of police power, and "however monstrous such abuse
undoubtedly may be, a foreign's state's exercise of the power
of its police has long been understood for purpose of the
restrictive theory as peculiarly sovereign in nature." 507
U.S. at 361; see also Mathias Reimann, A Human Rights
Exception to Sovereign Immunity: Some Thoughts on Princz
v. Federal Republic of Germany, 16 Mich. J. Int'l L. 403, 417-
18 (1995) (observing that under the unamended FSIA "efforts
to persuade the courts to recognize a human rights exception
to sovereign immunity" had failed).
The mounting concern over decisions such as these eventu-
ally spurred the political branches into action. See John F.
Murphy, Civil Liability for the Commission of International
Crimes as an Alternative to Criminal Prosecution, 12 Harv.
Hum. Rts. J. 1, 34 (1999). In 1996, as part of the comprehen-
sive Antiterrorism and Effective Death Penalty Act
("AEDPA"), Pub. L. No. 104-132, s 221(a), 110 Stat. 1214
(Apr. 24, 1996), Congress amended the FSIA to add a new
class of claims for which certain foreign states would be
precluded from asserting sovereign immunity. Specifically,
the amendment vitiates immunity in cases
in which money damages are sought against a foreign
state for personal injury or death that was caused by an
act of torture, extrajudicial killing, aircraft sabotage,
hostage taking, or the provision of material support or
resources ... for such an act if such act or provision of
material support is engaged in by an official, employee,
or agent of such foreign state while acting within the
scope of his or her office, employment, or agency[.]
28 U.S.C. s 1605(a)(7). In enacting this provision, Congress
sought to create a judicial forum for compensating the victims
of terrorism, and in so doing to punish foreign states who
have committed or sponsored such acts and deter them from
doing so in the future. See Daliberti v. Republic of Iraq, 97
F. Supp. 2d 38, 50 (D.D.C. 2000); Molora Vadnais, The
Terrorism Exception to the Foreign Sovereign Immunities
Act, 5 UCLA J. Int'l L. & Foreign Aff. 199, 216 (2000).
While such legislation had long been sought by victims'
groups, it had been consistently resisted by the executive
branch. See Alan Gerson & Jerry Adler, The Price of
Terror 212-26 (2001); H.R. Rep. No. 102-900, at 3-4, 11
(1992). Executive branch officials feared that the proposed
amendment to FSIA might cause other nations to respond in
kind, thus potentially subjecting the American government to
suits in foreign countries for actions taken in the United
States. See Murphy, supra, at 35-37; H.R. Rep. No. 103-702,
at 12 (1994). Although these reservations did not prevent the
amendment from passing, they nevertheless left their mark in
the final version of the bill.
Section 1605(a)(7) has some notable features which reveal
the delicate legislative compromise out of which it was born.
First, not all foreign states may be sued. Instead, only a
defendant that has been specifically designated by the State
Department as a "state sponsor of terrorism" is subject to the
loss of its sovereign immunity. s 1605(a)(7)(A). Second,
even a foreign state listed as a sponsor of terrorism retains
its immunity unless (a) it is afforded a reasonable opportunity
to arbitrate any claim based on acts that occurred in that
state, and (b) either the victim or the claimant was a U.S.
national at the time that those acts took place.
s 1605(a)(7)(B). In the present case, Libya has been desig-
nated as a sponsor of terrorism. See 31 C.F.R. s 596.201
(2001); Rein v. Socialist People's Libyan Arab Jamahiriya,
162 F.3d 748, 764 (2d Cir. 1998). Moreover, both plaintiffs
are American citizens, and Libya does not contend that it has
been denied a chance to arbitrate their claims.
If service of process has been made under s 1608, personal
jurisdiction over a foreign state exists for every claim over
which the court has subject matter jurisdiction. See 28
U.S.C. s 1330(b). In turn, the statute automatically confers
subject matter jurisdiction whenever the state loses its immu-
nity pursuant to s 1605(a)(7). See id. at s 1330(a). Personal
jurisdiction determinations always have been made in this
way under the FSIA. See Joseph W. Dellapenna, Suing
Foreign Governments and Their Corporations 9 (1988) (com-
menting on this "significant compression," whereby both
"competence [subject matter jurisdiction] and personal juris-
diction depend upon whether the foreign state is immune
under the substantive rules in the act"); see also Harris v.
VAO Intourist, Moscow, 481 F. Supp. 1056, 1065 (E.D.N.Y.
1979) (Weinstein, J.) (noting the way in which the FSIA
collapses subject matter jurisdiction, in personam jurisdic-
tion, and sovereign immunity into a single inquiry).
Under the original FSIA, however, it was generally under-
stood that in order for immunity to be lost, there had to be
some tangible connection between the conduct of the foreign
defendant and the territory of the United States. See Verlin-
den B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 490 & n.15
(1983); Lee M. Caplan, The Constitution and Jurisdiction
over Foreign States: The 1996 Amendments to the Foreign
Sovereign Immunities Act in Perspective, 41 Va. J. Int'l L.
369, 406-08 (2001); cf. McKeel v. Islamic Republic of Iran,
722 F.2d 582, 588 (9th Cir. 1983) ("[N]othing in the legislative
history [of the 1976 Act] suggests that Congress intended to
assert jurisdiction over foreign states for events occurring
wholly within their own territory. Such an intent would not
be consistent with the prevailing practice in international
law."). In this way, the original statute's immunity excep-
tions "prescribe[d] the necessary contacts which must exist
before our courts can exercise personal jurisdiction." H.R.
Rep. No. 94-1487, at 13 (describing the Act's personal jurisdic-
tion provisions as a kind of federal long-arm statute, one
patterned after the District of Columbia's own long-arm law);
see also Jurisdiction of U.S. Courts in Suits against Foreign
States: Hearings Before the Subcommittee on Administra-
tive Law and Governmental Relations of the House Commit-
tee on the Judiciary on H.R. 11315, 94th Cong., 2d Sess. 31
(1976) (statement of Bruno A. Ristau) (noting that this fea-
ture of the bill "will insure that only those disputes which
have a relation to the United States are litigated in the courts
of the United States").
When Congress passed the original FSIA, it was assumed
that the exercise of personal jurisdiction over foreign states
under the statute always would satisfy the demands of the
Constitution. See Joseph W. Glannon & Jeffery Atik, Politics
and Personal Jurisdiction: Suing State Sponsors of Terror-
ism under the 1996 Amendments to the Foreign Sovereign
Immunities Act, 87 Geo. L.J. 675, 681-82 (1999). This as-
sumption proved accurate. See, e.g., Shapiro v. Republic of
Bolivia, 930 F.2d 1013, 1020 (2d Cir. 1991); Callejo v. Ban-
comer, S.A., 764 F.2d 1101, 1107 n.5 (5th Cir. 1985); cf. S & D
David Int'l, Inc. v. Republic of Yemen, 218 F.3d 1292, 1304
(11th Cir. 2000) (noting that "the 'direct effects' language of
s 1605(a)(2) closely resembles the 'minimum contacts' lan-
guage of constitutional due process and these two analyses
have overlapped"). Indeed, as some courts have noted, the
nexus requirements imposed by the original FSIA sometimes
exceeded the constitutional standard. See In re Papandreou,
139 F.3d 247, 253 (D.C. Cir. 1998) ("substantial contact"
required by s 1603(e) requires more than the "minimum
contacts" necessary to ensure due process).
The antiterrorism amendments changed this statutory
framework. Under s 1605(a)(7), the only required link be-
tween the defendant nation and the territory of the United
States is the nationality of the claimant. Thus, s 1605(a)(7)
now allows personal jurisdiction to be maintained over defen-
dants in circumstances that do not appear to satisfy the
"minimum contacts" requirement of the Due Process Clause.
See Caplan, supra, at 408 ("Under its plain terms, the new
law extends extraterritoriality much further than the tradi-
tional reach of the International Shoe [Co. v. Washington,
326 U.S. 310 (1945)] standard.").
C. Challenges to the Factual Underpinnings of an FSIA
Complaint
Before we turn to the due process issue, as well as to the
antecedent question of whether plaintiffs have stated valid
claims under s 1605(a) for hostage taking and torture, we
must first address a separate argument that Libya has ad-
vanced on appeal. Libya contends that the District Court
erred in assuming the truth of the factual allegations in
plaintiffs' complaint for purposes of determining whether it
had subject matter jurisdiction. Appellant correctly points
out that in Phoenix Consulting, Inc. v. Republic of Angola,
216 F.3d 36, 40 (D.C. Cir. 2000), we held that when a foreign
state defendant raises "a dispute over the factual basis of the
court's subject matter jurisdiction under the FSIA," the trial
court is required to "go beyond the pleadings and resolve any
disputed issues of fact the resolution of which is necessary to
a ruling upon the motion to dismiss."
Libya now claims that it did not engage in the actions
described in plaintiffs' complaint. Thus, it contends that we
must reverse the District Court's finding of subject matter
jurisdiction and remand for further fact-finding on that issue.
See Foremost-McKesson, Inc. v. Islamic Republic of Iran,
905 F.2d 438, 448-49 (D.C. Cir. 1990) (holding that where the
"conclusory allegations" in a plaintiff's complaint are chal-
lenged by a sovereign defendant, "the district court must do
more than just look to the pleadings to ascertain whether to
grant the motion to dismiss"). We reject this argument.
In its original motion to dismiss, Libya specifically stated
that, for purposes of that pleading, it was not challenging "the
well-pleaded facts in the complaint." Def.'s Mot. to Dismiss,
at 2 (Jan. 21, 1998). When it renewed this motion, Libya still
did not challenge the factual basis of plaintiffs' allegations.
Instead, it wrote that, "[e]ven viewed in the light most
favorable to the plaintiffs, the facts alleged in the complaint
do not establish 'acts of torture' by Libya." Def.'s Mot. to
Dismiss, at 26 (Feb. 9, 2000). The District Court then
properly "[took] the plaintiff's factual allegations as true and
determine[d] whether they [brought] the case within any of
the exceptions to immunity invoked by the plaintiff." Phoe-
nix Consulting, 216 F.3d at 40. It now falls to this court to
review this determination, which we do de novo. See McKes-
son HBOC, 271 F.3d at 1105.
D. Appellate Jurisdiction
Price and Frey claim that we lack jurisdiction over Libya's
appeal, because the denial of a motion to dismiss for failure to
state a claim is neither a "final decision," see 28 U.S.C.
s 1291, nor the proper subject of an immediate appeal under
the "collateral order" doctrine, see Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949); Coopers & Lyband v.
Livesay, 437 U.S. 463 (1978). These propositions are gener-
ally correct; however, insofar as the instant appeal addresses
the denial of Libya's motion to dismiss on grounds of foreign
sovereign immunity, that question is immediately appealable.
See Princz v. Federal Republic of Germany, 998 F.2d 1, 1
(D.C. Cir. 1993); Foremost-McKesson, 905 F.2d at 443 (ob-
serving that sovereign immunity confers not merely a defense
against liability but a right not to be tried). Thus, an FSIA
defendant can take an immediate appeal if the District Court
rejects its argument that the facts alleged in the plaintiff's
complaint do not bring the case within one of the statute's
immunity exceptions.
This is in substance what Libya argued below, and what it
now asserts on appeal. See Br. for Appellant 24 ("The fact
that Price & Frey received a trial and were acquitted and
subsequently released, must deprive the district court of
subject matter jurisdiction as their confinement cannot be
considered an act of hostage taking under s 1605(a)(7).")
(emphasis added). In other words, the basis for Libya's
motion to dismiss and for this appeal was that plaintiffs had
not set forth an adequate factual basis for applying the
FSIA's torture and hostage taking exceptions. It follows
therefore that we have jurisdiction to review this challenge at
this time.
E. Torture
The FSIA's definition of torture derives from the meaning
given that term in section 3 of the Torture Victim Protection
Act of 1991 ("TVPA"), Pub. L. No. 102-256, 106 Stat. 73 (Mar.
12, 1992), codified at 28 U.S.C. s 1350 (note). See 28 U.S.C.
s 1605(e)(1). Section 3(b)(1) of the TVPA defines "torture"
to include
any act, directed against an individual in the offender's
custody or physical control, by which severe pain or
suffering (other than pain or suffering arising only from
or inherent in, or incidental to, lawful sanctions), whether
physical or mental, is intentionally inflicted on that indi-
vidual for such purposes as obtaining from that individual
or a third person information or a confession, punishing
that individual for an act that individual or a third person
has committed or is suspected of having committed,
intimidating or coercing that individual or a third person,
or for any reason based on discrimination of any kind.
(Emphases added). This definition, in turn, borrows exten-
sively from the 1984 United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess.,
Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) ("Torture
Convention"), which the United States signed in 1988 and
ratified two years later. See H.R. Rep. No. 102-367, Part 1, at
4-5 (1991). Indeed, the TVPA was passed in part to fulfill the
Convention's mandate that ratifying nations take action to
ensure that torturers are held legally accountable for their
actions. See S. Rep. No. 102-249, at 3 (1991).
While the legislative history of AEDPA gives no indication
as to how broadly the definition of torture was intended to
sweep, Congress considered this question both in ratifying
the Torture Convention and in enacting the TVPA. See Beth
Stephens & Michael Ratner, International Human Rights
Litigation in U.S. Courts 64 & n.4 (1996). Specifically, the
drafting histories of both the Convention and the statute
address two ambiguities lurking in that definition that must
be confronted as we consider whether Price and Frey have
alleged facts sufficient to bring this case within the FSIA's
definition of torture. The first concerns the meaning of
"severe": how much actual pain or suffering must defendants
inflict before their conduct rises to the level of torture? The
second involves the "for such purposes" language: what must
plaintiffs prove about the motivation for the alleged torture if
they hope to deprive foreign states of their immunity?
The severity requirement is crucial to ensuring that the
conduct proscribed by the Convention and the TVPA is
sufficiently extreme and outrageous to warrant the universal
condemnation that the term "torture" both connotes and
invokes. See David P. Stewart, The Torture Convention and
the Reception of International Criminal Law Within the
United States, 15 Nova L. Rev. 449, 455 (1991) (noting that
what the Convention forbade was likely already illegal under
most domestic legal systems); Filartiga v. Pena-Irala, 630
F.2d 876, 890 (2d Cir. 1980) ("Among the rights universally
proclaimed by all nations ... is the right to be free of
physical torture."); S. Rep. No. 102-249, at 3 ("Official torture
... violate[s] standards accepted by virtually every nation.").
The drafters of the Convention, as well as the Reagan Admin-
istration that signed it, the Bush Administration that submit-
ted it to Congress, and the Senate that ultimately ratified it,
therefore all sought to ensure that "only acts of a certain
gravity shall be considered to constitute torture." J. Herman
Burgers & Hans Danelius, The United Nations Convention
against Torture 117 (1988); see also S. Exec. Rep. No. 101-30,
at 14 (1990) ("The term 'torture,' in the United States and
international usage, is usually reserved for extreme, deliber-
ate and unusually cruel practices, for example, sustained
systematic beating, application of electric currents to sensi-
tive parts of the body, and tying up or hanging in positions
that cause extreme pain.").
The critical issue is the degree of pain and suffering that
the alleged torturer intended to, and actually did, inflict upon
the victim. The more intense, lasting, or heinous the agony,
the more likely it is to be torture. See S. Exec. Rep. No. 101-
30, at 15 ("The United States understands that, in order to
constitute torture, an act must be a deliberate and calculated
act of an extremely cruel and inhuman nature, specifically
intended to inflict excruciating and agonizing physical or
mental pain or suffering.") (internal quotation marks omit-
ted). This understanding thus makes clear that torture does
not automatically result whenever individuals in official custo-
dy are subjected even to direct physical assault. Not all
police brutality, not every instance of excessive force used
against prisoners, is torture under the FSIA.
As to the purposes for which abuse must be inflicted, it is
clear from the text of the TVPA that the list of purposes
provided was not meant to be exhaustive. See Murphy,
supra, at 27. Instead, this list was included in order to
reinforce that torture requires acts both intentional and mali-
cious, and to illustrate the common motivations that cause
individuals to engage in torture. See S. Exec. Rep. No. 101-30,
at 14. The "for such purposes" language thus suggests that
any non-enumerated purpose would have to be similar in
nature to those mentioned in order to elevate an act of
violence into an act of torture. See Burgers & Danelius 118-
19 (suggesting that there must be some, even if remote,
connection with the interests or policies of the State). More-
over, this requirement ensures that, whatever its specific
goal, torture can occur under the FSIA only when the pro-
duction of pain is purposive, and not merely haphazard. In
order to lose its sovereign immunity, a foreign state must
impose suffering cruelly and deliberately, rather than as the
unforeseen or unavoidable incident of some legitimate end.
When reviewing a plaintiff's unchallenged factual allega-
tions to determine whether they are sufficient to deprive a
foreign state defendant of sovereign immunity, we assume
those allegations to be true. Foremost-McKesson, 905 F.2d
at 440 n.3. Thus, where the defendant contests only the legal
sufficiency of plaintiff's jurisdictional claims, the standard is
similar to that of Rule 12(b)(6), under which dismissal is
warranted if no plausible inferences can be drawn from the
facts alleged that, if proven, would provide grounds for relief.
See Browning v. Clinton, No. 01-5050, slip op. at 5-6 (D.C.
Cir. June 11, 2002). A claimant need not set out all of the
precise facts on which the claim is based in order to survive a
motion to dismiss. Sinclair v. Kleindienst, 711 F.2d 291, 293
(D.C. Cir. 1983). However, in light of the serious and far-
reaching implications of the 1996 FSIA amendments, it is
especially important for the courts to ensure that foreign
states are not stripped of their sovereign immunity unless
they have been charged with actual torture, and not mere
police brutality.
In this case, plaintiffs' complaint offers no useful details
about the nature of the kicking, clubbing, and beatings that
plaintiffs allegedly suffered. As a result, there is no way to
determine from the present complaint the severity of plain-
tiffs' alleged beatings - including their frequency, duration,
the parts of the body at which they were aimed, and the
weapons used to carry them out - in order to ensure that
they satisfy the TVPA's rigorous definition of torture. In
short, there is no way to discern whether plaintiffs' complaint
merely alleges police brutality that falls short of torture.
Thus, the facts pleaded do not reasonably support a finding
that the physical abuse allegedly inflicted by Libya evinced
the degree of cruelty necessary to reach a level of torture.
Furthermore, the present complaint says virtually nothing
about the purpose of the alleged torture. Plaintiffs seemingly
have left it for the courts to conjure some illicit purpose to fill
in this pleading gap. Obviously this will not do.
In sum, plaintiffs' allegations of torture as presently stated
are insufficient to survive defendant's motion to dismiss.
Plaintiffs must allege more than that they were abused.
They must demonstrate in their pleadings that Libya's con-
duct rose to such a level of depravity and caused them such
intense pain and suffering as to be properly classified as
torture. Although it is far from certain, their complaint hints
that they might be able to state a proper claim for torture
under the FSIA. Accordingly, we will remand the case to the
District Court to allow plaintiffs to attempt to amend their
complaint in an effort to satisfy TVPA's stringent definition of
torture.
F. Hostage Taking
As with torture, the FSIA draws its definition of "hostage
taking" from an exogenous legal source, here article 1 of the
International Convention Against the Taking of Hostages.
See 28 U.S.C. s 1605(e)(2). This provision reads as follows:
Any person who seizes or detains and threatens to kill, to
injure or to continue to detain another person in order to
compel a third party, namely, a State, an international
governmental organization, a natural or judicial person
or a group of persons, to do or abstain from doing any
act as an explicit or implicit condition for the release of
the hostage commits the offense of taking hostages within
the meaning of the Convention.
(Emphases added). Under no reasonable reading of the
plaintiffs' complaint does their admittedly unpleasant impris-
onment qualify as hostage taking so defined.
The Convention does not proscribe all detentions, but in-
stead focuses on the intended purpose of the detention. In
this case, the complaint asserts only that Libya incarcerated
Price and Frey "for the purpose of demonstrating Defen-
dant's support of the government of Iran which held hostages
in the U.S. Embassy in Tehran, Iran." Compl., at p 7. Such
motivation does not satisfy the Convention's intentionality
requirement. The definition speaks in terms of conditions of
release; the defendant must have detained the victim in order
to compel some particular result, specifically to force a third
party either to perform an act otherwise unplanned or to
abstain from one otherwise contemplated so as to ensure the
freedom of the detainee. Accordingly, detention for the goal
of expressing support for illegal behavior - even for behavior
that would itself qualify as "hostage taking" - does not
constitute the taking of hostages within the meaning of the
FSIA.
In this case, the plaintiffs have suggested no demand for
quid pro quo terms between the government of Libya and a
third party whereby Price and Frey would have been re-
leased upon the performance or non-performance of any
action by that third party. Indeed, even when read most
favorably to them, their complaint points to no nexus between
what happened to them in Libya and any concrete concession
that Libya may have hoped to extract from the outside world.
The one purpose that plaintiffs have alleged is plainly inade-
quate, and they have advanced no others. Their allegation
thus falls short of the standard for hostage taking under
s 1605(a)(7).
For these reasons, Libya cannot be stripped of its sover-
eign immunity based on plaintiffs' allegation of hostage tak-
ing. The District Court thus erred in refusing to dismiss this
count. Accordingly, we reverse on this point.
G. Personal Jurisdiction
The last question that we face is whether the Due Process
Clause is offended by the District Court's assertion of person-
al jurisdiction over Libya. If, on remand, plaintiffs can state
a claim of torture under s 1605(a)(7) sufficient to survive a
motion to dismiss, and if they have properly served process
on the defendant, personal jurisdiction will be established
under the FSIA. See 28 U.S.C. s 1330(b); Practical Con-
cepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1548 n.11
(D.C. Cir. 1987) (noting that under the FSIA, "subject matter
jurisdiction plus service of process equals personal jurisdic-
tion"). However, it is well-settled that "a statute cannot
grant personal jurisdiction where the Constitution forbids it."
Gilson v. Republic of Ireland, 682 F.2d 1022, 1028 (D.C. Cir.
1982).
The Due Process Clause requires that if the defendant "be
not present within the territory of the forum, he have certain
minimum contacts with it such that the maintenance of the
suit does not offend 'traditional notions of fair play and
substantial justice.' " Int'l Shoe, 326 U.S. at 316 (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). In the absence
of such contacts, the liberty interest protected by the Due
Process Clause shields the defendant from the burden of
litigating in that forum. See Burger King Corp. v. Rudzew-
icz, 471 U.S. 462, 471-72 (1985). Libya argues that foreign
states, no less than private individuals and corporations, are
protected by these constitutional strictures.
In the present case, it is undisputed that Libya has no
connection with the District of Columbia or with the United
States, except for the alleged fact that it tortured two Ameri-
can citizens in Libya. This would be insufficient to satisfy the
usual "minimum contacts" requirement. See, e.g., IMO In-
dus., Inc. v. Kiekert AG, 155 F.3d 254, 265-66 (3d Cir. 1998)
(holding that minimum contacts do not exist in an intentional
tort case unless the defendant "expressly aimed its tortious
conduct at the forum"; the mere fact that the harm caused by
the defendant was primarily felt in the forum because the
plaintiff resided there is not enough); Wallace v. Herron, 778
F.2d 391, 394-95 (7th Cir. 1985) (rejecting the suggestion that
"any plaintiff may hale any defendant into court in the
plaintiff's home state, where the defendant has no contacts,
merely by asserting that the defendant has committed an
intentional tort against the plaintiff"). Therefore, Libya ar-
gues, the Fifth Amendment precludes the exercise of personal
jurisdiction in this case.
Implicit in Libya's argument is the claim that a foreign
state is a "person" within the meaning of the Due Process
Clause. See U.S. Const. amend. V ("nor shall any person ...
be deprived of life, liberty, or property, without due process
of law"). In previous cases, we have proceeded as if this
proposition were true, but we have never so held. See, e.g.,
Gilson, 682 F.2d at 1028 (finding that Ireland had sufficient
contacts with the United States to allow for personal jurisdic-
tion without specifically addressing whether it was a person
protected by the Fifth Amendment); Foremost-McKesson,
905 F.2d at 442 n.10 (noting, in a case against Iran, the Fifth
Amendment's minimum contacts requirements, but ultimately
finding that the defendant had waived any such constitutional
defense to personal jurisdiction).
Moreover, both the Supreme Court and this court have
expressly indicated that the constitutional issue remains an
open one. See Republic of Argentina v. Weltover, Inc., 504
U.S. 607, 619 (1992) (assuming without deciding that a foreign
state is a person for purposes of the Due Process Clause);
Creighton Ltd. v. Gov't of Qatar, 181 F.3d 118, 124-25 (D.C.
Cir. 1999) (noting that the view that foreign states are
entitled to constitutional due process is merely an "unchal-
lenged assumption"). Now, however, this assumption has
been challenged. And, with the issue directly before us, we
hold that foreign states are not "persons" protected by the
Fifth Amendment.
Our conclusion is based on a number of considerations.
First, as the Supreme Court noted in Will v. Michigan
Department of State Police, there is an "often-expressed
understanding that 'in common usage, the term "person" does
not include the sovereign, and statutes employing the word
are ordinarily construed to exclude it.' " 491 U.S. 58, 64
(1989) (quoting Wilson v. Omaha Indian Tribe, 442 U.S. 653,
667 (1979)). In the context of a specific statute, "person" may
be given a broader meaning. Compare Will, 491 U.S. at 71
(holding that a State is not a "person" within the meaning of
42 U.S.C. s 1983), and Breard v. Greene, 523 U.S. 371, 378
(1998) (holding that a foreign state is not a "person" entitled
to bring suit under s 1983), with Pfizer v. Government of
India, 434 U.S. 308, 320 (1978) (holding that a foreign state is
a "person" entitled to sue under the federal antitrust laws).
In this case, however, what is at issue is the meaning of the
Due Process Clause, not a statutory provision. And, on this
score, it is highly significant that in South Carolina v. Kat-
zenbach, 383 U.S. 301, 323-24 (1966), the Court was unequivo-
cal in holding that "the word 'person' in the context of the
Due Process Clause of the Fifth Amendment cannot, by any
reasonable mode of interpretation, be expanded to encompass
the States of the Union." Therefore, absent some compelling
reason to treat foreign sovereigns more favorably than
"States of the Union," it would make no sense to view foreign
states as "persons" under the Due Process Clause.
Indeed, we think it would be highly incongruous to afford
greater Fifth Amendment rights to foreign nations, who are
entirely alien to our constitutional system, than are afforded
to the states, who help make up the very fabric of that
system. The States are integral and active participants in
the Constitution's infrastructure, and they both derive impor-
tant benefits and must abide by significant limitations as a
consequence of their participation. Compare U.S. Const. art.
IV s 4 ("The United States shall guarantee to every State in
this Union a Republican form of Government, and shall
protect each of them against Invasion;"), with id. at art. VI,
cl. 2 ("This Constitution ... shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Law of the State to the
Contrary notwithstanding."), and id. at art. 1 s 10 (listing
specific acts prohibited to the States). However, a "foreign
State lies outside the structure of the Union." Principality
of Monaco v. Mississippi, 292 U.S. 313, 330 (1934). Given
this fundamental dichotomy between the constitutional status
of foreign states and States within the United States, we
cannot perceive why the former should be permitted to avail
themselves of the fundamental safeguards of the Due Process
Clause if the latter may not.
It is especially significant that the Constitution does not
limit foreign states, as it does the States of the Union, in the
power they can exert against the United States or its govern-
ment. Indeed, the federal government cannot invoke the
Constitution, save possibly to declare war, to prevent a for-
eign nation from taking action adverse to the interest of the
United States or to compel it to take action favorable to the
United States. It would therefore be quite strange to inter-
pret the Due Process Clause as conferring upon Libya rights
and protections against the power of federal government.
In addition to text and structure, history and tradition
support our conclusion. Never has the Supreme Court sug-
gested that foreign nations enjoy rights derived from the
Constitution, or that they can use such rights to shield
themselves from adverse actions taken by the United States.
This is not surprising. Relations between nations in the
international community are seldom governed by the domes-
tic law of one state or the other. See Lori Fisler Damrosch,
Foreign States and the Constitution, 73 Va. L. Rev. 483, 520
(1987) ("The most a foreign state can demand is that other
states observe international law, not that they enforce provi-
sions of domestic law."). And legal disputes between the
United States and foreign governments are not mediated
through the Constitution. See Nat'l Council of Resistance of
Iran v. Dep't of State, 251 F.3d 192, 202 (D.C. Cir. 2001)
(recognizing that "sovereign states interact with each other
through diplomacy and even coercion in ways not affected by
constitutional protections such as the Due Process Clause").
Rather, the federal judiciary has relied on principles of
comity and international law to protect foreign governments
in the American legal system. This approach recognizes the
reality that foreign nations are external to the constitutional
compact, and it preserves the flexibility and discretion of the
political branches in conducting this country's relations with
other nations. See Damrosch, supra, at 521 (describing the
ways in which "the recognition that foreign states and the
United States interact as juridical equals on the level of
international law and diplomacy outside the constitutional
system, with rights and duties on the international plane not
deriving from the Constitution, has shaped the Supreme
Court's approach to various problems of domestic law");
Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (mat-
ters such as the conduct of foreign relations are "so exclusive-
ly entrusted to the political branches of government as to be
largely immune from judicial inquiry or interference").
An example of this approach is seen with respect to the
right of access to the courts. Private individuals have "a
constitutional right of access to the courts," Bounds v. Smith,
430 U.S. 817, 821 (1977), that is, the "right to sue and defend
in the courts," Chambers v. Baltimore & Ohio R.R., 207 U.S.
142, 148 (1907). See also Wolff v. McDonnell, 418 U.S. 539,
579 (1974) (holding that this right derives from the Due
Process Clause). Foreign states also have been afforded the
right to use the courts of the United States to prosecute civil
claims "upon the same basis as a domestic corporation or
individual might do." Pfizer, 434 U.S. at 318-19; see also
Principality of Monaco, 292 U.S. at 323 n.2 ("There is no
question but that foreign States may sue private parties in
the federal courts."). But the right of access enjoyed by
foreign nations derives from "principles of comity," and it is
"neither a matter of absolute obligation, on the one hand, nor
of mere courtesy and good will, upon the other." Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-09 (1964)
(quoting Hilton v. Guyot, 159 U.S. 113, 164-65 (1895)). This
privilege is not to be denied lightly, because to do so "would
manifest a want of comity and friendly feeling." The Sap-
phire, 78 U.S. (11 Wall.) 164, 167 (1870). Nonetheless, for-
eign nations do not have a constitutional right of access to
the courts of the United States. Indeed, only nations recog-
nized by and at peace with the United States may avail
themselves of our courts, and "it is within the exclusive power
of the Executive Branch to determine which nations are
entitled to sue." Pfizer, 434 U.S. at 319-20 (noting that the
rule is one of "complete judicial deference to the Executive
Branch").
While we recognize that the present case implicates not the
right of affirmative access to the courts, but rather its
reverse - the right not to be haled into court - this does not
change the analysis under the Due Process Clause. The
personal jurisdiction requirement is not a structural limitation
on the power of courts. Rather, "[t]he personal jurisdiction
requirement recognizes and protects an individual liberty
interest. It represents a restriction on judicial power not as
a matter of sovereignty, but as a matter of individual liberty."
Ins. Corp. of Ire. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702 (1982). This makes sense, because "[t]he
requirement that a court have personal jurisdiction flows not
from Art. III, but from the Due Process Clause." Id. And
the "core of the concept" of due process is "to secure the
individual from the arbitrary exercise of the powers of gov-
ernment, unrestrained by the established principles of private
right and distributive justice." County of Sacramento v.
Lewis, 523 U.S. 833, 845-46 (1998). It is thus quite clear that
the constitutional law of personal jurisdiction secures inter-
ests quite different from those at stake when a sovereign
nation such as Libya seeks to defend itself against the
prerogatives of a rival government. It therefore follows that
foreign states stand on a fundamentally different footing than
do private litigants who are compelled to defend themselves
in American courts.
Unlike private entities, foreign nations are the juridical
equals of the government that seeks to assert jurisdiction
over them. See Damrosch, supra, at 519-20 & n.150
("Foreign states exist within the United States as coequal
sovereigns on the international plane. International law
recognizes the juridical equality of each member of the in-
ternational community, and establishes for all states a ser-
ies of rights and duties flowing from this principle."). If
they believe that they have suffered harm by virtue of
being haled into court in the United States, foreign states
have available to them a panoply of mechanisms in the in-
ternational arena through which to seek vindication or re-
dress. Id. at 525. These mechanisms, not the Constitution,
set the terms by which sovereigns relate to one another.
We would break with the norms of international law and
the structure of domestic law were we to extend a consti-
tutional rule meant to protect individual liberty so as to
frustrate the United States government's clear statutory
command that Libya be subject to the jurisdiction of the
federal courts in the circumstances of this case. The con-
stitutional limits that have been placed on the exercise of
personal jurisdiction do not limit the prerogative of our
nation to authorize legal action against another sovereign.
Conferring on Libya the due process trump that it seeks
against the authority of the United States is thus not only
textually and structurally unsound, but it would distort the
very notion of "liberty" that underlies the Due Process
Clause.
The distinction between privileges conferred on foreign
states without reference to the Constitution and correspond-
ing rights enjoyed by other entities because of the Constitu-
tion extends to sovereign immunity itself. The Supreme
Court has made clear that Congress lacks the power under
Article I to abrogate the sovereign immunity of the States of
the Union. Alden v. Maine, 527 U.S. 706, 712 (1999); Semi-
nole Tribe of Fl. v. Florida, 517 U.S. 44, 72-73 (1996). Such
immunity from suit, if not created by the Constitution, see
Blatchford v. Native Village of Noatak, 501 U.S. 775, 779
(1991), is at least protected by it. Thus, the national govern-
ment is prevented from undoing this immunity except under
limited and unusual circumstances. See, e.g., Bd. of Trustees
of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001). In contrast,
however, nothing in the Constitution limits congressional
authority to modify or remove the sovereign immunity that
foreign states otherwise enjoy. Instead, like the right of
access to courts, such immunity is "a matter of grace and
comity on the part of the United States, and not a restriction
imposed by the Constitution." Verlinden, 461 U.S. at 486.
In short, we are unwilling to interpret the Due Process
Clause as conferring rights on foreign nations that States of
the Union do not possess. Neither the text of the Constitu-
tion, Supreme Court decisions construing the Due Process
Clause, nor long standing tradition provide a basis for extend-
ing the reach of this constitutional provision for the benefit of
foreign states.
Finally, it is worth noting that serious practical problems
might arise were we to hold that foreign states may cloak
themselves in the protections of the Due Process Clause.
For example, the power of Congress and the President to
freeze the assets of foreign nations, or to impose economic
sanctions on them, could be challenged as deprivations of
property without due process of law. The courts would be
called upon to adjudicate these sensitive questions, which in
turn could tie the hands of the other branches as they sought
to respond to foreign policy crises. The Constitution does not
command this. See Regan v. Wald, 468 U.S. 222, 242 (1984);
DKT Mem'l Fund Ltd. v. Agency for Int'l Dev., 887 F.2d 275,
291 (D.C. Cir. 1989) (describing the need for the nation to
speak with "a single voice" in foreign affairs); People's Moja-
hedin Org. of Iran v. Dep't of State, 182 F.3d 17, 22 (D.C. Cir.
1999) ("No one would suppose that a foreign nation had a due
process right to notice and a hearing before the Executive
imposed an embargo on it for the purpose of coercing a
change in policy.").
In sum, we hold that the Fifth Amendment poses no
obstacle to the decision of the United States government to
subject Libya to personal jurisdiction in the federal courts.
Our decision on this point reaches only an actual foreign
government; we express no view as to whether other entities
that fall within the FSIA's definition of "foreign state" -
including corporations in which a foreign state owns a majori-
ty interest, see 28 U.S.C. s 1603(b) - could yet be considered
persons under the Due Process Clause. We also note that
the unavailability of constitutional due process protections will
not render foreign states helpless when sued in the United
States, for the doctrine of forum non conveniens remains
fully applicable in FSIA cases. See Verlinden, 461 U.S. at
490 n.15; Proyecfin de Venezuela, S.A. v. Banco Industrial
de Venezuela, S.A., 760 F.2d 390, 394 (2d Cir. 1985) (suggest-
ing that the forum non conveniens doctrine helps mitigate
the concern that "United States courts will become the courts
of choice for local disputes between foreign plaintiffs and
foreign sovereign defendants and thus be reduced to interna-
tional courts of claims") (internal quotation marks omitted).
III. Conclusion
For the reasons given above, we reverse in part and
remand the case to the District Court for further proceedings
consistent with this opinion.