Jawad v. Hagel

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MOHAMMED JAWAD,
also known as SAKI BACHA,

Plaintiff,
Civil Action No. 14-811 (ESH)
v.

ROBERT M. GATES, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Mohammed Jawad has sued the United States and a host of government officials

under the Alien Tort Claims Act (“ATCA” or “ATS”), 28 U.S.C. § 1350; the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680; the Torture Victim Protection Act (“TVPA”),

28 U.S.C. § 1350; and the Fifth and Eighth Amendments to the United States Constitution.

Jawad was a detainee at Forward Operating Base 195 in Afghanistan and subsequently at the

United States Naval Base in Guantanamo Bay, Cuba from 2002 until he was released in 2009.

The United States has now moved to dismiss plaintiff’s ATCA and FTCA claims. The

individual plaintiffs have moved to dismiss the TVPA and constitutional claims. Because D.C.

Circuit precedent has already addressed plaintiff’s claims and rejected them, this Court will grant

defendants’ motions to dismiss.

BACKGROUND

Plaintiff alleges the following in his amended complaint. Although he does not know his

exact age, plaintiff, an Afghan citizen, believes he was born in 1987. (Am. Compl. for Damages

[ECF No. 10] (“Compl.”) ¶¶ 1, 28.) On December 17, 2002, Afghan forces captured plaintiff

after a hand grenade attack badly injured several U.S. soldiers and their Afghan interpreter in a
Kabul bazaar. (Id. ¶ 31.) Plaintiff’s Afghan captors abused and threatened him, eventually

forcing him to sign a confession (written in a language that he could not read) with his

thumbprint. (Id. ¶¶ 33-34.) Plaintiff was subsequently transferred into the custody of U.S.

forces at Forward Operating Base (“FOB”) 195 outside Kabul. (Id. ¶¶ 39-40.) U.S. officials

continued to interrogate plaintiff and “deprive[d] him of food, drink, and sleep.” (Id. ¶ 41.)

Plaintiff was “strip-searched, and then photographed in the nude in front of several on-lookers.”

(Id. ¶ 43.) “He was blindfolded and hooded, told that if he did not cooperate that he would never

see his family again, and made to hold a water bottle which he was told was a bomb that could

explode at any moment.” (Id.) Several hours later, “he admitted responsibility for the attack.”

(Id. ¶ 44.)

On December 18, 2002, plaintiff was transferred from FOB 195 to “the U.S. detention

facility [in] Bagram, Afghanistan.” (Id. ¶ 48.) At that installation, plaintiff was “subjected to

cruel, abusive, and inhumane treatment,” including “maltreatment, torture in the form of

beatings, hooding, physical and linguistic isolation, sleep deprivation, death threats, forced stress

positions, being chained to the wall for prolonged periods, pushed down the stairs, and various

other forms of intimidation.” (Id. ¶ 50.)

On February 6, 2003, plaintiff was transferred to Guantanamo Bay Naval Base. (Id. ¶

52.) Prior to his transfer, plaintiff was “intentionally starved for three days and given only sips

of water,” because detainees “were not permitted to use the toilet while in transit.” (Id. ¶ 52 &

n.8.) Plaintiff “spent the majority of 2003 in social, physical, and linguistic isolation, with his

only human contact being his interrogators.” (Id. ¶ 56.) He was “housed with the adult

population, rather than in separate facilities for juveniles.” (Id.) On December 25, 2003, he

attempted suicide. (Id. ¶ 57.) “By March 2004, Plaintiff was deemed to be of no intelligence

2
value to the U.S.,” but “he was still subjected to over 60 interrogations,” which included

“excessive cold, loud noise, beatings, pepper-spray, and being shackled for prolonged periods.”

(Id. ¶¶ 58-60.)

Plaintiff complains in particular about “a sleep deprivation regimen” euphemistically

termed the “‘frequent flyer’ program,” which “consisted of repeatedly moving a detainee from

one cell to another in quick intervals throughout the night to disrupt sleep cycles, on average

every three hours.” (Id. ¶¶ 61-62.) “The standard length for the frequent flyer program was two

weeks.” (Id. ¶ 62.) The program was used both as an “interrogation technique” and as “a form

of punishment . . . for detainees.” (Id. ¶¶ 63-64.) “Defendant Jay Hood assumed command of

[the Joint Task Force] – Guantanamo in March 2004, and ordered the use of the frequent flyer

program discontinued as an interrogation technique,” but it continued to be used as “a method of

controlling detainees,” and “Plaintiff was subjected to the frequent flyer program from May 7 –

20, 2004.” (Id. ¶¶ 67-68.)

Plaintiff appeared before a Combatant Status Review Tribunal (“CSRT”) in November

2004. (Id. ¶ 79.) The CSRT determined that plaintiff was an enemy combatant, and that status

determination was reaffirmed at Administrative Review Board proceedings on December 8, 2005

and November 8, 2006. (Id. ¶¶ 80-81.) On October 9, 2007, “Plaintiff was charged under the

Military Commissions Act of 2006 with three [counts] each of ‘attempted murder in violation of

the law of war’ and ‘intentionally causing serious bodily injury.’” (Id. ¶ 84.) “[P]rosecutors in

the military commission expressed their intention to offer [plaintiff’s] statement/confession . . .

into evidence . . . Plaintiff’s defense counsel filed a motion to suppress the statement as the

product of torture.” (Id. ¶ 85.) The motion was granted. (Id.) On appeal, the U.S. Court of

Military Commission Review deemed the statement inadmissible “because the confessions had

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been acquired through the use of death threats.” (Id. ¶ 87.) The Commission also found that

“[t]he infliction of the ‘frequent flyer’ technique upon the Accused . . . had no legitimate

interrogation purpose’ and that plaintiff had been “beaten, kicked, and pepper sprayed for not

complying with a guard’s instruction” on or about June 2, 2008. (Id. ¶ 88.) The Commission

concluded that subjecting plaintiff to the frequent flyer program constituted “abusive conduct

and cruel and inhuman treatment.” (Id.)

In 2005, a writ of habeas corpus was filed on plaintiff’s behalf. (Id. ¶ 89.) On July 24,

2009, “the Justice Department filed a notice informing the court that it was dropping its

opposition to the habeas petition and no longer considered Plaintiff legally detainable.” (Id. ¶

92.) This Court granted plaintiff’s habeas petition on July 30, 2009, “and Plaintiff was

repatriated.” (Id. ¶ 93.)

Plaintiff has now filed suit against the United States and individual federal defendants. In

his first cause of action, plaintiff alleges that “Defendants tortured and inhumanely treated

Plaintiff in violation of the law of . . . nations,” which “constitute[d] a violation of international

law under the [ATCA] and the [FTCA].” (Id. ¶ 95.) Plaintiff alleges that defendants “held

Plaintiff in solitary confinement; deprived Plaintiff of food and drink; subjected Plaintiff to sleep

deprivation; threatened Plaintiff; beat, kicked, and pepper-sprayed Plaintiff; exposed Plaintiff to

extreme temperatures; sexually humiliated Plaintiff; [and] deprived Plaintiff of adequate medical

care.” (Id. ¶ 98.) Plaintiff also alleges that the “‘frequent flyer’ program . . . constituted abusive

conduct and cruel and inhumane treatment.” (Id. ¶ 99.) Plaintiff contends that “Defendants

tortured Plaintiff under color of official authority,” and argues that this torture “violated the laws

of nations, as defined by customary international law, multilateral treaties, and other

international instruments.” (Id. ¶¶ 96, 105.)

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 In the second cause of action, plaintiff claims that defendants’ actions constituted “a

violation of international law under the [ATCA] and the [FTCA], in that Defendants tortured and

inhumanely treated Plaintiff in violation of the Third and Fourth Geneva Conventions.” (Id. ¶

107.) He contends that the actions described above “violate the Geneva Convention’s

prohibition on disciplinary punishment that are inhumane, brutal, or dangerous to the health of

prisoners of war.” (Id. ¶ 116.)

In the third cause of action, plaintiff contends that his treatment violated Article 6 and

Article 7 of the Optional Protocol on the Involvement of Child Soldiers in Armed Conflict,

which he again argues constituted a violation of international law under the ATCA and the

FTCA. (Id. ¶ 119.) He argues that defendants’ failure to “assist in Plaintiff’s physical recovery,

psychological recovery, or prepare Plaintiff for social reintegration,” violated the Protocol

“through his release.” (Id. ¶ 122.)

The fourth cause of action alleges unlawful torture in violation of the TVPA, also in

violation of international law under the ATCA and the FTCA. (Id. ¶ 125.)

In the fifth and sixth causes of action, plaintiff alleges that defendants are liable for

violating his Fifth and Eighth Amendment rights. (Id. ¶¶ 136-137, 146-147 (citing Bivens v. Six

Unknown Named Federal Agents, 403 U.S. 388 (1971).) He claims that “Defendants violated

the Fifth Amendment by ordering the indefinite and arbitrary detention of Plaintiff without

adequate due process of law” and that the torture he suffered constituted “cruel and unusual

punishment.” (Id. ¶¶ 144, 146.) He contends that “Defendants had actual and constructive

knowledge that they and their subordinates were violating Plaintiff’s constitutional rights, and

that these violations were occurring as a result of Defendant[s’] orders, instructions, and

omissions.” (Id. ¶ 140.)

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 ANALYSIS

I. SUBSTITUTION

Plaintiff brings his six causes of actions against all of the defendants, including the four

individuals in their personal capacity. 1 In its motion to dismiss, the United States argues that

“[t]he law is clear . . . that plaintiff may pursue his first three counts, if at all, only against the

United States under the FTCA.” (Statement of P. & A. in Supp. of Mot. of the United States of

America to Dismiss Pl.’s Am. Compl. [ECF No. 28-1] (“U.S. Mot.”) at 11.) The United States

argues that substitution of itself for the individual defendants is proper because the individual

defendants were federal employees acting within the scope of their employment. (Id.)

The FTCA authorizes federal district courts to hear “civil actions on claims against the

United States, for money damages” arising out of injuries “caused by the negligent or wrongful

act or omission of any employee of the Government while acting within the scope of his office or

employment,” if a private person in like circumstances would face liability under state law. 28

U.S.C. § 1346(b)(1). However, “[t]he Federal Employees Liability Reform and Tort

Compensation Act of 1988, commonly known as the Westfall Act, ‘accords federal employees

absolute immunity from common-law tort claims arising out of acts they undertake in the course

of their official duties.’” Wuterich v. Murtha, 562 F.3d 375, 380 (D.C. Cir. 2009) (quoting

Osborn v. Haley, 549 U.S. 225, 229 (2007)); see also 28 U.S.C. § 2679(b)(1). The Attorney

General may certify “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.” 28. § U.S.C. 2679(d)(1).

Upon certification, the claim “shall be deemed an action against the United States . . . and the

1
These individuals are retired Major General Geoffrey D. Miller, retired Major General Jay W.
Hood, retired Major General Nelson J. Cannon, and Esteban Rodriguez. (See Compl. ¶¶ 21-24.)

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United States shall be substituted as the party defendant.” Id. “A plaintiff may contest the

Attorney General’s scope-of-employment certification before a district court.” Wuterich, 562

F.3d at 381. If he does so, the certification “constitute[s] prima facie evidence that the employee

was acting within the scope of his employment,” which the plaintiff may attempt to rebut by

alleging “sufficient facts that, taken as true, would establish that the defendant[’s] actions

exceeded the scope of [his] employment.” Id. (internal quotation marks omitted) (alterations in

original). Westfall Act immunity also includes exceptions for claims alleging either “a violation

of the Constitution” or “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. Scope of Employment

The Attorney General, through his designee, has certified that the individual defendants

were acting within the scope of their federal employment. (Certification of Scope of

Employment [ECF No. 27-1].) Plaintiff attempts to rebut this certification by arguing that

torture falls outside the individual defendants’ scope of employment. In particular, plaintiff

argues that “Defendants acted as rogue officials who implemented a policy of torture that had

been previously prohibited and . . . undertook such torture for no intelligence gathering purpose.”

(Mem. of P. & A. in Supp. of Pl.’s Opp. to Def. United States of America’s Mot. to Dismiss Pl.’s

Am. Compl. [ECF No. 31] (“Pl.’s Opp. to U.S. Mot.”) at 4.) Plaintiff cites to an opinion by the

U.S. Court of Military Commission Review, which found that plaintiff was subjected to the

frequent flyer program after “Major General . . . Jay Hood ordered [the program] discontinued.”

(Id., Ex. A [ECF No. 31-1] (“Commission Decision”) ¶ 5.) The same opinion also noted that the

frequent flyer program continued despite having “no legitimate interrogation purpose” and that

the program’s “continuation was not simple negligence but flagrant misbehavior.” (Id. ¶¶ 6, 12.)

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Plaintiff also alleges that defendants acted outside the scope of their employment by subjecting

him to fourteen days of the frequent flyer program, which exceeded the four-day sleep-

deprivation maximum approved by Secretary of Defense Donald Rumsfeld. (Pl.’s Opp. to U.S.

Mot. at 5; see also Compl. ¶ 65.) Finally, plaintiff argues that the torture engaged in by

defendants was “not actuated by a purpose to serve the United States,” since it was “not for any

interrogative purpose”, and thus falls outside their scope of employment under D.C. agency law.

(Pl.’s Opp. to U.S. Mot. at 6.)

The majority of plaintiff’s arguments were considered and flatly rejected by the D.C.

Circuit in Allaithi v. Rumsfeld, 753 F.3d 1327 (D.C. Cir. 2014). In Allaithi, several detainees

were subjected to abuse – including “forced grooming, solitary confinement, sleep deprivation,

forced medication, transport in ‘shackles and chains, blackened goggles, and ear coverings,’ and

the disruption of . . . religious practices” – even after a CSRT had determined that there were not

enemy combatants. Id. at 1329. Following D.C. law, the Allaithi Court looked to the Second

Restatement of Agency 2 to determine if the individual defendants were acting within the scope

of their employment. Id. at 1330. The Court held that the defendants’ actions were “‘of the

kind’ [they were] employed to perform,” even though the mistreatment occurred when several of

the plaintiffs “had no intelligence value.” Id. at 1332. The Court noted that “[t]hough the

intelligence rationale has dissipated, the need to maintain an orderly detention environment

remained after CSRT clearance.” Id. The Court continued: “Authorized or not, the conduct was

2
The Restatements sets forth four factors, “all of which must apply for the conduct of a servant
to fall within the scope of employment: (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.” Allaithi, 753 F.3d at 1330 (quoting
Restatement (Second) of Agency § 228(1) (1958)).

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certainly foreseeable because maintaining peace, security, and safety at a place like Guantanamo

Bay is a stern and difficult business.” Id. at 1333. The Allaithi Court also rejected the plaintiffs’

argument that the defendants’ actions were not in service of their master, finding that defendants

were serving the government’s “well-recognized penological interest in ‘maintaining security

and discipline’ at Guantanamo Bay.” Id. “[T]o fall outside the scope of employment,” the

“employee [must] be solely motivated by his own purposes,” and as the Court found, it is

implausible that “defendants’ post-clearance conduct was entirely motivated by some sort of

personal animus.” Id.

Allaithi forecloses plaintiff’s argument that defendants’ conduct was outside the scope of

employment simply because it did not serve an intelligence-gathering purpose. Plaintiff has

failed to demonstrate that the frequent flyer program and the other mistreatment he suffered was

not in furtherance of the government’s “well-recognized penological interest in ‘maintaining

security and discipline’ at Guantanamo Bay.” Id. Indeed, plaintiff concedes in his complaint

that “the frequent flyer program was also used . . . as a form of punishment or ‘disincentive’ for

detainees, distinct from the interrogation process.” (Compl. ¶ 64.) As such, plaintiff has failed

to show that defendants’ conduct was not “actuated, at least in part, by a purpose to serve the

master.” Allaithi, 753 F.3d at 1330 (quoting Restatement (Second) of Agency § 228(1) (1958)).

Plaintiff’s only other argument is that “Defendants acted as rogue officials who

implemented a policy of torture that had been previously prohibited.” (Pl.’s Opp. to U.S. Mot. at

4.) Plaintiff’s allegations, however, do not support this contention. Plaintiff alleges only that

“Defendant Jay Hood . . . ordered the use of the frequent flyer program discontinued as an

interrogation technique.” (Compl. ¶ 67 (emphasis added); see also id. ¶ 68 (“[Defendant Jay

Hood] apparently did not order [the frequent flyer program] discontinued . . . as a method of

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controlling detainees.”).) As noted above, plaintiff concedes that the frequent flyer program was

also used for disciplinary purposes. (See id. ¶ 64.) This concession undermines plaintiff’s

argument that the frequent flyer program was conducted in contravention of orders by rogue

officials. 3 Moreover, even if the frequent flyer program was conducted in an unauthorized

manner, plaintiff has failed to allege how the named defendants were acting outside the scope of

their employment. (See id. ¶¶ 21-24 (discussing supervisory responsibilities of the named

plaintiff); Allaithi, 753 F.3d at 1333 (“Despite vividly detailing the various abuses allegedly

endured by the Appellants, the complaints do not specify how the named defendants were

involved with these abuses.”).) As such, this Court must conclude that defendants’ conduct, as

alleged by plaintiff, fell within the scope of their federal employment. 4

3
Plaintiff also argues that defendants’ actions were unauthorized because Secretary of Defense
Rumsfeld set a four-day limit on detainee sleep deprivation. (See Compl. ¶ 65.) Plaintiff does
not allege, however, that this limit applied to the frequent flyer program. (See id. (explaining
that Guantanamo officials considered the frequent flyer program “sleep adjustment” rather than
“sleep deprivation”).) Moreover, exceeding the four-day limit is insufficient to demonstrate that
the conduct was “entirely motivated by some sort of personal animus.” Allaithi, 753 F.3d at
1333; see also id. (“Authorized or not, the conduct was certainly foreseeable because
maintaining peace, security, and safety at a place like Guantanamo Bay is a stern and difficult
business. We are therefore hard-pressed to conclude the actions leading to the plaintiffs’
treatment were not ‘a direct outgrowth of the [defendants’] instructions or job assignment.’”
(alteration in original) (quoting Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 32 (D.C.
1979)); Restatement (Second) of Agency § 230 (“An act, although forbidden, or done in a
forbidden manner, may be within the scope of employment.”).
4
Plaintiff also cites various prohibitions against torture, contending that “[i]t is inherently
incredible that Defendants’ conduct in committing acts in violation of the War Crimes Act is of
the kind they are ‘employed to perform.’” (Pl.’s Opp. to U.S. Mot. at 12 (quoting 18 U.S.C. §
2441).) Courts in this Circuit, however, have consistently found that conduct similar to that
alleged by plaintiff fell within the scope of defendants’ employment. E.g., Allaithi, 753 F.3d at
1332; Ali v. Rumsfeld, 649 F.3d 762, 765-66, 774-75 (D.C. Cir. 2011) (mistreatment of detainees
in military facilities in Iraq and Afghanistan, including beatings, hoodings, sexual assault,
humiliation, deprivation of food and water, use of racial epithets, extended solitary confinement,
and prolonged sleep deprivation, was within defendants’ scope of employment); Rasul v. Myers,
512 F.3d 644, 660 (D.C. Cir. 2008) (“[H]ere it was foreseeable that conduct that would
ordinarily be indisputably ‘seriously criminal’ would be implemented by military officials
responsible for detaining and interrogating suspected enemy combatants.”), vacated, 555 U.S.
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 B. Violation of the Constitution or Federal Statute

Plaintiff argues that “[t]he Westfall Act does not apply in this case . . . [because] Plaintiff

has asserted both statutory and constitutional violations.” (Pl.’s Opp. to U.S. Mot. at 3.) In

particular, plaintiff first contends that “[t]he Supremacy Clause places ratified treaties on the

same footing as federal statutes.” (Id. at 15.) This arguments lacks merit. “[E]very court to

consider the issue has determined that the Westfall Act’s exemption for statutory claims does not

include claims brought pursuant to a treaty.” Sobitan v. Glud, 589 F.3d 379, 386 (7th Cir. 2009);

see also Ali, 649 F.3d at 776 (“[W]e 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 [the Westfall Act].”); Harbury v. Hayden, 444 F. Supp. 2d

19, 37 (D.D.C. 2006) (“International law, however characterized (i.e., the law of nations, federal

common law), falls outside of these clearly enumerated exceptions [to the Westfall Act].”), aff’d,

522 F.3d 413 (D.C. Cir. 2008).

Plaintiff next argues that “Defendants’ violation of international law and treaties violated

a myriad of domestic statutes prohibiting torture.” (Pl.’s Opp. to U.S. Mot. at 16.) This

argument also fails. The first three causes of action of plaintiff’s complaint do not allege a

violation of any federal statute other than the FTCA and the ATCA. (See Compl. ¶¶ 94-123.)

And while plaintiff cites a number of statutes prohibiting torture, none of these statutes creates a

private cause of action. See 18 U.S.C. § 2441 (criminalizing various war crimes); 10 U.S.C. §

893 (authorizing court-martial punishment for cruelty and maltreatment); 18 U.S.C. § 2340A

1083 (2008), reinstated in relevant part on remand, 563 F.3d 527 (D.C. Cir. 2009) (per curiam);
Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 114 (D.D.C. 2010) (“[Defendants’] conduct was
therefore foreseeable and incidental to the defendants’ positions as military, medical, or civilian
personnel in connection with Guantanamo and accordingly falls within the scope of their
employment.”).

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(criminalizing torture); 42 U.S.C. § 2000dd-0 (prohibiting detainee mistreatment); see also Doe

v. Rumsfeld, 683 F.3d 390, 397 (D.C. Cir. 2012) (finding that 42 U.S.C. § 2000dd, which

contains nearly identical language to 42 U.S.C. § 2000dd-0, does not include a private right of

action); Garey v. Thompson, No. 5:07-cv-322, 2010 U.S. Dist. LEXIS 53378, at *4 (M.D. Ga.

June 1, 2010) (“[T]he Court finds that 42 U.S.C. §§ 2000d and 2000dd-0 do not create a private

cause of action.”). Since plaintiff’s first three counts fail to allege a constitutional violation or 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), this Court must substitute the United States for

the individual defendants named in Count I-III.

II. SOVEREIGN IMMUNITY

The United States contends that plaintiff’s first three causes of action – which are all

brought pursuant to the FTCA – must be dismissed for lack of subject matter jurisdiction on the

grounds that the United States has not waived its sovereign immunity. The United States

observes that “[t]he FTCA does not permit suit against the United States for ‘[a]ny claim arising

in a foreign country,’” and argues that all of plaintiff’s alleged injuries were “sustained in

Afghanistan and Cuba,” which are foreign countries for purposes of the FTCA. (Id. at 24-25

(quoting 28 U.S.C. § 2680(k).) Plaintiff concedes that “this Court has held Guantanamo Bay is a

foreign country under the FTCA” but “respectfully requests the Court reconsider this decision in

light of the facts of this case and the evolution of human rights law.” (Pl.’s Opp. at U.S. Mot. at

40-41.) Plaintiff contends that “the United States exercises complete jurisdiction and control

over Guantanamo Bay” and points out that “only U.S. law applies” there. (Id. at 42.)

This Court must decline plaintiff’s request. “The United States, as sovereign, is immune

from suit save as it consents to be sued, and the terms of its consent to be sued in any court

12
define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584,

586 (1941) (citations omitted). “The [FTCA] is a limited waiver of sovereign immunity, making

the Federal Government liable to the same extent as a private party for certain torts of federal

employees acting within the scope of their employment.” United States v. Orleans, 425 U.S 807,

813 (1976). As both parties acknowledge, however, the FTCA explicitly excludes from its

waiver of sovereign immunity “[a]ny claim arising in a foreign country.” 28 U.S.C. § 2680(k);

see also Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004) (“[T]he FTCA’s foreign country

exception bars all claims based on any injury suffered in a foreign country, regardless of where

the tortious act or omission occurred.”). Courts in this Circuit have consistently held that the

foreign country exception encompasses claims arising from injuries sustained on U.S.

installations in Afghanistan and Guantanamo. E.g., Al Janko v. Gates, 831 F. Supp. 2d 272, 284

(D.D.C. 2011) (“Guantánamo fits well within the Supreme Court’s ‘foreign country’ definition

for purposes of the FTCA . . . .”); Al-Zahrani, 684 F. Supp. 2d at 116-19 (rejecting plaintiffs’

argument that “Guantanamo is not a ‘foreign country’ under the FTCA because only U.S. law

applies there”); accord Ameur v. Gates, 950 F. Supp. 2d 905, 919 & n.5 (E.D. Va. 2013). Since

the Court finds the rationale set forth in these opinions to be persuasive, Counts I, II, and III will

be dismissed for lack of subject matter jurisdiction.

III. TORTURE VICTIM PROTECTION ACT

Defendants argue that plaintiff’s fourth cause of action “must be dismissed for failure to

state a claim under the TVPA.” (Statement of P. & A. in Supp. of Mot. of the Individual Federal

Defs. to Dismiss Pl.’s Am. Compl. [ECF No. 29-1] (“Individual Defs.’ Mot.”) at 21.) The TVPA

provides that an “individual who, under actual or apparent authority, or color of law, of any

foreign nation . . . subjects an individual to torture shall, in a civil action, be liable for damages to

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that individual.” 28 U.S.C. § 1350 Note, § 2(a). Defendants contend that “plaintiff’s amended

complaint contests actions taken by United States government personnel pursuant to the

authority, law, and policies of the United States” and that plaintiff “does not even remotely

suggest that he brings any grievance against any individual doing anything ‘under actual or

apparent authority, or color of law, of any foreign nation.’” (Individual Defs.’ Mot. at 24

(quoting 28 U.S.C. § 1350 Note, § 2(a)).) Plaintiff appears to concede this point, but argues that

the “[t]he portion of the TVPA exempting United States Officials from liability violates not only

binding and well-established customary international law, but also United States’ domestic laws

prohibiting torture.” (Mem. of P. & A. in Opp. of the Individual Defs.’ Mot. to Dismiss Pl.’s

Am. Compl. [ECF No. 32] (“Pl.’s Opp. to Individual Defs.’ Mot.”) at 27.) Plaintiff therefore

urges this Court to “find the provision of the TVPA limiting liability to those acting under the

law of a ‘foreign nation’ . . . unconstitutional and provide Plaintiff a remedy consistent with the

purpose of the law.” (Id. at 28.)

“It is the peculiar province of the legislature to prescribe general rules for the government

of society . . . .” Fletcher v. Peck, 6 Cranch 87, 136 (1810). As even plaintiff must

acknowledge, Congress limited liability under the TVPA to individuals acting pursuant to the

authority of a foreign nation. Although plaintiff styles his argument as an objection to the

constitutionality of the TVPA, he is in effect requesting that this Court rewrite that law to imply

a new cause of action against U.S. officials. As will be explained infra, Circuit precedent

forecloses this Court from creating a Bivens remedy for plaintiff. It would similarly be

inappropriate to expand the TVPA beyond the limits clearly established by Congress. See Al

Bahlul v. United States, 767 F.3d 1, 17 (D.C. Cir. 2014) (“[A] court cannot ‘rewrite a law to

conform it to constitutional requirements, for doing so would constitute a serious invasion of the

14
legislative domain.’” (quoting United States v. Stevens, 559 U.S. 460, 481 (2010)). Since

plaintiff’s complaint fails to allege any wrongdoing by an individual acting pursuant to the

authority of a foreign nation, his fourth cause of action will be dismissed.

IV. IMPLIED BIVENS REMEDY

Defendants next urge this Court to dismiss plaintiff’s fifth and sixth causes of actions

against the individual defendants, which allege violations of the Fifth and Eighth Amendments

and request a Bivens remedy. Defendants argue that “[t]he D.C. Circuit has already rejected

proposed Bivens claims on special factors grounds in legally indistinguishable cases brought by

post-9/11 alien detainees against United States government officials.” (Individual Defs.’ Mot. at

11.) Contrary to clearly established law, plaintiff responds that allowing him to “pursue his

Bivens claims would not disrupt or hinder the ability of our military to act decisively in defense

of our national interests.” (Pl.’s Opp. to Individual Defs.’ Mot. at 10.)

Plaintiff’s arguments are squarely foreclosed by Circuit precedent. As this Court

explained previously, “[t]he D.C. Circuit’s conclusion that special factors counsel against the

judiciary’s involvement in the treatment of detainees held at Guantanamo binds this Court and

forecloses it from creating a Bivens remedy for plaintiffs here.” Al-Zahrani, 684 F. Supp. 2d at

112. The rationale articulated in Al-Zahrani applies with equal force to plaintiff’s complaint.

See id. at 111-12. Since Al-Zahrani, the Circuit has reaffirmed its refusal to create a Bivens

remedy in at least two cases that are indistinguishable from this one. See Allaithi, 753 F.3d at

1334 (“[S]pecial factors counsel against allowing the [Bivens] claim to move forward.”); Ali, 649

F.3d at 774 (“[E]ven if the defendants were not shielded by qualified immunity and the plaintiffs

could claim the protections of the Fifth and Eighth Amendments, we would decline to sanction a

Bivens cause of action because special factors counsel against doing so.”). Plaintiff fails to

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address this binding Circuit law, instead repeating arguments that have previously been rejected.

This Court has no choice but to dismiss plaintiff’s fifth and sixth causes of action.

V. MILITARY COMMISSIONS ACT

Defendants argue, in the alternative, that the Military Commissions Act (“MCA”) bars all

of plaintiff’s claims against both the United States and the named defendants. (See U.S. Mot. at

20-23; Individual Defs.’ Mot. at 10-11.) Plaintiff responds that the MCA’s jurisdiction-stripping

provision is inapplicable to him and, in any case, is unconstitutional. (See Pl.’s Opp. to U.S.

Mot. at 19-34.)

The MCA provides:

[N]o court, justice, or judge shall have jurisdiction to hear or consider any [non-
habeas] action against the United States or its agents relating to any aspect of the
detention, transfer, treatment, trial, or conditions of confinement of an alien who
is or was detained by the United States and has been determined by the United
States to have been properly detained as an enemy combatant or is awaiting such
determination.

28 U.S.C. § 2241(e)(2). Plaintiff does not dispute that this is a non-habeas action “against the

United States or its agents relating to [an] aspect of the detention, transfer, treatment, trial, or

conditions of confinement of an alien who is or was detained by the United States.” Id. Instead,

plaintiff asserts that “neither a CSRT nor ARB determined Plaintiff was an ‘enemy combatant.’”

(Pl.’s Opp. to U.S. Mot. at 21.) For support, plaintiff cites the opinion by the U.S. Court of

Military Commission Review, which found that “no CSRT or other tribunal has found the

Accused to be an alien unlawful enemy combatant.” (Commission Decision ¶ 2.) Section

2241(e)(2) does not, however, require a finding that plaintiff was an “unlawful enemy

combatant,” merely that he was an “enemy combatant.” In his complaint, plaintiff concedes that

after “appear[ing] before a CSRT,” he “was determined to be an enemy combatant” and that his

“enemy combatant status was reaffirmed in ARBs conducted on December 8, 2005, and

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November 8, 2006.” (Compl. ¶¶ 79-81.) These concessions negate any argument that plaintiff

was never found to be an enemy combatant.

Plaintiff next argues that § 2241(e)(2) does not apply to him because, during his habeas

proceedings, “the Executive Branch . . . confirmed Plaintiff was no longer considered detainable

under the AUMF.” (Pl.’s Opp. to U.S. Mot. at 22.) Plaintiff contends that “[i]t defies logic to

bar jurisdiction on the basis of a prior made decision . . . that Plaintiff is an enemy combatant

when the United States has more recently confirmed that he is not.” (Id.) Plaintiff’s argument is

deficient on several fronts. First, nothing in the record indicates that the United States

determined that plaintiff was, in fact, not an enemy combatant. Rather, the relevant filing merely

stated that the government would “no longer treat [plaintiff] as detainable under the

Authorization for Use of Military Force.” (Pl.’s Opp. to U.S. Mot., Ex. D at 1.) Plaintiff fails to

explain how this statement constitutes a rescission of the government’s earlier classification of

him as an enemy combatant. (See Reply in Supp. of Mot. to Dismiss of the United States of

America [ECF No. 34] at 16 n.5 (explaining multiple possible reasons for the government’s

litigation decision).)

Even if the court filing cited by plaintiff did constitute an admission by the Executive

Branch that the previous CSRT classification was erroneous, D.C. Circuit precedent dictates that

the § 2241(e)(2) would still apply. In Al Janko v. Gates, 741 F.3d 136 (D.C. Cir. 2014), the

Circuit considered a lawsuit filed by an individual who had been twice classified by CSRTs as an

enemy combatant but was subsequently released when a district court granted his habeas petition

for lack of evidence that he was lawfully detainable as an enemy combatant. Id. at 138 (citing Al

Ginco v. Obama, 626 F. Supp. 2d 123, 130 (D.D.C. 2009)). The Circuit held that the MCA’s

jurisdiction-stripping provision “requires only that the Executive Branch determine that the

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AUMF authorizes the alien’s detention without regard to the determination’s correctness.” Id. at

144. The holding of Al Janko is dispositive. Plaintiff has conceded that the Executive Branch,

through a CSRT, classified him as an enemy combatant. The MCA jurisdictional bar therefore

applies, regardless of any subsequent admissions of error by the government. 5

Plaintiff next contends that “[g]iven [his] age, pursuant to the Child Soldier Protocol, the

United States should never have taken custody of Plaintiff” and that, “[h]ad the United States not

violated this treaty, Plaintiff would never have been transferred to Guantanamo Bay and a CSRT

proceeding would never have taken place.” (Pl.’s Opp. to U.S. Mot. at 26.) Even if plaintiff is

correct, however, he has not explained why his juvenile status should negate the effect of 28

U.S.C. § 2241(e)(2). See Khadr v. Bush, 587 F. Supp. 2d 225, 234-37 (D.D.C. 2008) (holding

that the § 2241(e)(2) jurisdictional bar applied to a plaintiff’s request for a base transfer pursuant

to the Child Soldier Protocol).

As a final matter, plaintiff challenges 28 U.S.C. § 2241(e)(2) as unconstitutional, both

facially and as applied to him. (Pl.’s Opp. to U.S. Mot. at 26-34.) He contends that the

“elimination of jurisdiction over federal question claims must be struck down as unconstitutional

as prohibited by Article III,” that the CSRTs lacked important due process protections, and that

the statute is “invalid given it is a Bill of Attainder in violation of Article I.” (Id. at 26-31.)

These arguments lack merit. The Circuit has foreclosed plaintiff’s first argument by holding that

the government is not constitutionally required to provide injured plaintiffs with a money

damages remedy. Al Zahrani v. Rodriguez, 669 F.3d 315, 319-20 (D.C. Cir. 2012). With respect

5
The Circuit’s holding in Al Janko similarly disposes of plaintiff’s argument that he “did not
meet the AUMF requirements for enemy combatant.” (Pl.’s Opp. to U.S. Mot. at 24.)
“Conditioning the statute’s applicability on the accuracy of the Executive Branch’s
determination would do violence to the statute’s clear textual directive.” Al Janko, 741 F.3d at
144.
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to plaintiff’s second argument, the D.C. Circuit has repeatedly upheld the validity of CSRTs as a

means of making enemy combatant determinations. Al Janko, 741 F.3d at 145-47; Al-Zahrani,

669 F.3d at 319-20; see also Al-Zahrani, 684 F. Supp. 2d at 109 (“The argument that because

CSRT review has been found to be an inadequate substitute for habeas review, it is also

inconclusive for ‘purposes of application of MCA Section 7’ is baseless.”). And finally, the

Court agrees with the Ninth Circuit’s conclusion that “§ 2241(e)(2) is not a bill of attainder

because it does not inflict legislative punishment.” Hamad v. Gates, 732 F.3d 990, 1004 (9th

Cir. 2013); accord Ameur v. Gates, 759 F.3d 317, 329 (4th Cir. 2014) (“Lastly, § 2241(e)(2) is

not a bill of attainder.”). As such, this Court concludes that all of plaintiff’s claims are statutorily

barred by 28 U.S.C. § 2241(e)(2). 6

CONCLUSION

While this Court shares plaintiff’s condemnation of the treatment and the conditions that

he was subjected to in Guantanamo and agrees that such conduct is contrary “to fundamental

American values of justice” (Pl.’s Opp. to U.S. Mot. at 2), it is simply not correct to argue that it

is within this Court’s power to create a remedy for what happened there. Both Congress and the

D.C. Circuit, in a line of cases involving claims that mirror those of Mohammed Jawad, have

squarely addressed plaintiff’s claims and have made it clear that this Court, which is bound by

the laws of Congress and D.C. Circuit precedent, must dismiss plaintiff’s complaint with

prejudice.

/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge

6
In light of the above holdings, this Court need not address defendants’ arguments that
plaintiff’s claims are barred by qualified immunity and the statute of limitations.
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Date: July 8, 2015

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