United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema, United States District Judge.
the Court is defendant CACI Premier Technology, Inc.'s
("CACI" or "defendant") Motion to Dismiss
[Dkt. No. 626]. For the reasons that follow, the Motion will
be granted in part and denied in part, and Counts 1, 4, and 7
of the Third Amended Complaint will be dismissed. Because
portions of the Third Amended Complaint and the parties'
briefs were filed under seal, this opinion has redacted
references to those sealed materials; however, the Court
questions the rationale for such seals and has ordered the
parties immediately to show cause why anything in this record
should be sealed.
civil action, plaintiffs Suhail Najim Abdullah Al Shimari
("Al Shimari"), Asa'ad Hamza Hanfoosh
Al-Zuba'e ("Al-Zuba'e"), and Salah Hasan
Nsaif Jasim Al-Ejaili ("Al-Ejaili") (collectively,
"plaintiffs") bring nine counts against CACI. The
essence of plaintiffs' claims, which are all brought
pursuant to the Alien Tort Statute ("ATS"), 28
U.S.C. § 1350, is that defendants' employees, who
were military contractors at Abu Ghraib prison in Iraq,
worked with military personnel to abuse plaintiffs, who were
detained at the prison. This abuse is alleged to involve
torture; cruel, inhuman, or degrading treatment
("CIDT"); and war crimes.
explained in plaintiffs' Third Amended Complaint, the
genesis of this civil action goes back to 2003, when the
United States of America and various allied forces invaded
Iraq and toppled Saddam Hussein's regime. Third Am.
Compl. ("TAC") [Dkt. No. 254] ¶
Although the coalition forces quickly achieved military
victory, a variety of insurgent forces developed to resist
the coalition. Id. In response to this insurgency,
the allied forces arrested and detained many Iraqi citizens.
Id. In need of facilities to hold their detainees,
the coalition forces took over the Abu Ghraib site, a prison
complex outside Baghdad. Id. ¶ 12. Although the
Abu Ghraib complex had many different sections controlled by
different groups, the events giving rise to this civil action
all took place in Tier 1A of the "Hard Site, " a
relatively small section of the complex controlled by
American military forces that housed detainees who were
suspected to be of "military intelligence value."
least between fall 2003 and spring 2004, the military
contracted with CACI to provide interrogators to supplement
the military personnel who worked at the Hard Site.
Id. ¶¶ 13-14. According to documents
accompanying this contract, CACI was responsible for
providing personnel to "assist, supervise, coordinate,
and monitor all aspects of interrogation activities, in order
to provide timely and actionable intelligence to the
commander." Id. ¶ 15. CACI was also
required to provide supervision for its own personnel.
Id. As of January 23, 2004, the Joint Interrogation
and Debriefing Center ("JIDC") organizational chart
showed that 32 CACI employees, along with 97 soldiers, were
assigned to the JIDC and CACI employees were "assigned
to 15 of the 20 staffed cells conducting interrogations
within the Interrogation Control Element." Id.
detainees at the Hard Site were guarded by Military Police
("MPs") from the 372nd Military Police Company.
Id. ¶ 17. Interrogations were conducted by CACI
employees and Military Intelligence ("MI")
personnel, who were assigned to particular detainees.
Id. At the time, Staff Sergeant Ivan Frederick
("Frederick") was the Non-Commissioned Officer in
Charge of the MPs at the Hard Site. Id. ¶ 18.
Although Frederick was subordinate to officers in the 372nd
Military Police Company, his military superiors engaged in
"virtually no supervision of the MPs at the Hard
Site." Id. In addition, CACI employees had full
access to the areas where detainees were imprisoned, and MPs
were often confused about whether particular interrogators
were CACI employees or MI personnel. Id.
¶¶ 89-90. As a result, CACI employees were the de
facto supervisors, and they expressly ordered both
Frederick and his subordinates to take specific actions to
"soften up, " "rough up, " or
"humiliate" detainees, "allegedly in
preparation for their interrogations." Id.
¶ 18; see also id. ¶¶ 110-11
The MPs at the site XXXXX.
Id. ¶ 115.
February 2004, Sergeant Joseph Darby disclosed evidence of
the abuse at Abu Ghraib to military authorities, and the
military opened multiple investigations into the conduct at
the prison. Id. ¶ 79. One investigation, which
was conducted by Major General George R. Fay, found that CACI
employees, as well as MI personnel, MPs, and other soldiers,
had "responsibility or complicity in the abuses that
occurred at Abu Ghraib" and that what began as
"nakedness and humiliation, stress and physical training
(exercise)" devolved into "sexual and physical
assaults by a small group of morally corrupt and unsupervised
soldiers and civilians." Id. ¶¶
81-82. This investigation identified at least five such
civilians as CACI employees. Id. ¶ 82. In
addition, the investigation identified (by pseudonyms) CACI
employees Steven Stefanowicz ("Stefanowicz"),
Daniel Johnson ("Johnson"), and Timothy Dugan
("Dugan") as individuals who abused detainees and
concluded that Johnson had encouraged Frederick to abuse
detainees. Id. ¶88.
investigation, conducted by Major General Antonio Taguba,
identified CACI employee Stefanowicz as one of a variety of
personnel who were "directly or indirectly responsible
for the abuses at Abu Ghraib." Id. ¶¶
78, 83. The investigation further concluded that Stefanowicz
gave "instructions to military personnel that [he] knew
were both physically abusive and prohibited."
Id. ¶ 87. Based on these findings, the
investigation recommended "official reprimand and
termination of Stefanowicz." Id. The investigation
was accompanied by a report prepared by Colonel Henry Nelson,
a psychologist, which observed that MP personnel, including
Frederick, "collaborated with ... civilian contract
interrogators" and that witnesses reported "pairs
of civilian interrogators and interpreters carrying out
detainee abuse." Id. ¶ 84.
testimony, MPs who were present at the site have corroborated
this connection between MP personnel and CACI employees and
have explained that CACI employees assumed supervisory roles
at the site. Specifically, Frederick has testified that CACI
employees ordered him to "conduct or permit the
following abusive acts upon the detainees under his
supervision": restriction of detainees' diets;
exposure of detainees to extreme hot or cold, including cold
water; nudity; stress positions; sleep deprivation; forced
physical exertion to the point of exhaustion; humiliation,
such as forcing detainees to wear female underwear; and the
use of unmuzzled dogs. Id. ¶ 23. In addition,
Frederick has testified that XXXXX
personnel "had actually ordered him to set the
conditions for abusing the detainees" and that
XXXXX who "actually ordered the
more severe forms of abuse" were Stefanowicz and
Johnson. Id.¶ 85. Frederick has further that
XXXXX. Id. ¶ 86. Other
military personnel, including Sergeant Theresa Adams and
Captain Carolyn Wood, have testified that CACI interrogators
"actually supervised" military personnel at the
site, and then-Corporal Charles Graner ("Graner")
testified that Stefanowicz and Johnson directed him to
torture detainees. Id. ¶¶ 97, 100.
XXXXX according to Frederick.
Id. ¶ 108.
has also testified that he "never really knew who was in
charge at Abu Ghraib." Id. ¶ 89. Not only
were CACI personnel given full access to the site and often
confused with Ml personnel, but it was "common
practice" for personnel to cover their name tags,
causing confusion among both detainees and MPs about the
identities and affiliations of interrogators. Id.
¶¶ 91-93 (quoting testimony of Frederick,
then-Sergeant Javal Davis ("Davis"), and Sergeant
Hydrue Joyner ("Joyner")). Joyner also specifically
testified XXXXX Id. ¶
94- Similarly-but even more specifically-Davis testified that
"Steve" was one of the individuals who contributed
to the abuse of detainees but that Davis "did not know
who [Steve] work[ed] for, " just that "he [wa]s an
investigator/interrogator." Id. ¶ 103
(second alteration in original).
addition to military personnel, detainees themselves have
corroborated the structure of this de facto
hierarchy, where MPs took orders from CACI personnel. For
example, in his deposition, Al-Ejaili testified that
"civilian interrogators were seen as authority figures
who gave instructions to military personnel" and he
recalls guards asking interrogators for instructions about
how to punish prisoners. Id. ¶ 138. Al-Ejaili
has also specifically identified CACI employee Johnson as one
of the interrogators who gave instructions to the guards and
has testified that Johnson would visit the detainees'
cellblock multiple times each week to talk to the guards or
observe each cell. Id. ¶¶ 139-40.
these de facto supervisory positions, CACI employees
helped establish a system of communication and oversight that
enabled them to direct and monitor prisoner abuse. For
example, CACI employees used "code words or terms,
" such as giving detainees "special treatment,
" "soften[ing] up" detainees, and the
"doggie dance, " to communicate to military
personnel that they wanted the personnel to abuse prisoners
in preparation for interrogations. Id. ¶ 117.
Stefanowicz, in particular, XXXXX and
would direct MPs to use unmuzzled dogs to threaten and, in at
least one case, bite detainees. Id. ¶¶
122-23. XXXXX He told Graner that
XXXXX Id. ¶
126. In addition, CACI employees-specifically
Stefanowicz and Johnson-were present for a variety of abuses,
including when prisoners were kept naked in cells, were
forced to wear women's underwear, were tied to the cell
bars, and were put in stress positions. Id. ¶
to plaintiffs, responsibility for this abuse extended not
just to individual CACI employees but also to the
corporation. Plaintiffs rely on references to experts who
have made clear that interrogators in war theatres will
generally "be under intense pressure to produce
actionable intelligence" and ensuring that interrogators
do not "fall into the trap of acting on the belief that
the means justifies the ends" requires proper training,
leadership, and supervision. Id. ¶¶
144-45. Plaintiffs allege that CACI failed to provide such
training, leadership, and instead XXXXX and, for at least one employee, conducting
only a five-minute telephone interview before offering him a
position as an interrogator in Iraq. Id.
¶¶ 146-47. CACI also failed to appropriately
investigate after multiple CACI employees and military
officers informed CACI management about its employees'
participation in prisoner abuse-and, case, XXXXX Id. ¶¶
150-53. Even after the prisoner abuse became
public and the military conducted multiple investigations,
CACI failed to discipline its employees whom the military
determined were involved in the abuse. Id.
¶¶ 154-55. Instead, CACI launched its own
"internal investigation, " which cleared its
employees of wrongdoing; XXXXX
further allege that CACI and its employees worked to cover up
the prisoner mistreatment and CACI employees' roles in
the abuse. In addition to the lies that Stefanowicz told
government investigators, individuals at the prison
intentionally hid detainees from the Red Cross when the Red
Cross inspected the Hard Site. Id. ¶ 129. After
the mistreatment became public, CACI and its parent company
engaged in a "campaign of intimidation to suppress any
coverage or investigation of its role in the conspiracy,
" including by sending letters threatening legal action
to reporters and bringing a frivolous lawsuit against a radio
station. Id. ¶¶ 172-73. They also issued a
series of misleading statements, including falsely stating in
a press release in 2004 that no employee departures in the
previous year had been related to Abu Ghraib abuse, claiming
in testimony and a book that CACI employees were always
monitored by the military and CACI supervisors, and falsely
claiming in a book that none of the publicly available
photographs of abuse at Abu Ghraib show CACI employees.
Id. ¶¶ 171, 175-76, 179, 181.
Abuse Suffered by Plaintiffs
three plaintiffs were detained at Abu Ghraib in late 2003 or
early 2004, during the time that the abuse described above
was ongoing. Each plaintiff was subjected to a variety of
mistreatment while at Abu Ghraib, and each has submitted to a
deposition in which he has detailed the abuse he
Treatment of Al-Ejaili
a former credentialed reporter for Al-Jazeera, was first
arrested by United States Army personnel on November 3, 2003,
while he was reporting on an explosion in Iraq's Diyala
province. Pl. Opp. [Dkt. No. 639] Ex. A ("Al-Ejaili
Dep.") 9:3-:22, 25:5-: 12. After about a week of
detention in various Army facilities, he was transferred to
Abu Ghraib, where he was held for approximately six weeks.
Id. at 17:19-36:3, 106:3-:6. He was processed at Abu
Ghraib and taken to Tier 1, where a man in a military uniform
and an interpreter took him to a hallway, commanded him to
strip naked, put a bag over his head, and shouted at him to
confess. Id. at 51:22-52:17. After shouting at
Al-Ejaili for some amount of time, they left him naked in the
hallway. Id. at 58:3-: 18. Graner then transported
Al-Ejaili to another corridor, where he put him in an orange
jumpsuit and handcuffed him to a pole. Id. at
61:7-63:17. Al-Ejaili was left handcuffed to the pole with a
bag on his head through the night. He alleges that he vomited
up a black substance while in that position. Id. at
63:21-64:16. At some point during the night, a woman
approached the still-naked Al-Ejaili and touched him all over
his body, pulling at his hair and pinching him. Id.
at 65:6-:9. The next morning, Al-Ejaili was forced to clean
the vomit off the floor with his jumpsuit and taken to a
cell. Id. at 68:6-: 13. He tried to clean the
jumpsuit but, while it was drying, had nothing to wear.
Id. at 69:5-:9. When he told a guard in a military
uniform that he was cold, the guard gave him female
underwear. Id. at 69:10-: 19.
the ensuing weeks, Al-Ejaili was interrogated ten to twelve
times-approximately once every two or three days.
Id. at 80:7-:9. Each time, he was stripped naked,
had a bag placed over his head, and was taken to an
interrogation room. Id. at 74:6-:9. During the
interrogations, he was often handcuffed to a pipe in the room
and was beaten, punched, kicked, and slapped on the head,
Id. at 79:5-:l 1, 82:19-:21, 100:l-:6. The
interrogators also sometimes doused him with hot water, hot
tea, or cold water. Id. at 100:20-01:3.
mistreatment continued outside of interrogations. The prison
personnel forced Al-Ejaili to follow a disruptive sleeping
regimen and punished him when he was unable to follow it.
Id. at 101:15-:18. They withheld food and water from
him. Id. at 101:19-:20; 217:22-18:4. They left him
alone and naked in a dark room in the basement of the tier.
Id. at 101:20-02:1. They sometimes took all of the
belongings in his cell, including the bed and his clothing,
and left him naked there for multiple days. Id. at
102:7-: 10. They chained his naked body to the wall or the
bars of his cell or the bed, and they repeatedly chained him
in stress positions. Id. at 217:20-:22; Orig. Def.
Mem. [Dkt. No. 28] Ex. 2 ("Al-Ejaili Int."), at No.
4. They put a bag over his head and beat him. Al-Ejaili Dep.
102:17-03:14. At least three times, they brought dogs so
close to his face while it was covered with a bag that he
could feel them, an experience he has described as
"[t]errifying." Id. at 201:16-: 13;
see also Pt. Opp. Ex. P (photos of Abu Ghraib
detainees being threatened with dogs); Al-Ejaili Int., at No.
4 ("Al-Ejaili was threatened with unleased dogs during
an interrogation."); Pl. Opp. Ex. D ("Al-Ejaili
Xenakis Rep.") 4 ("[Al-Ejaili] was threatened with
dogs when hooded and could feel the dogs salivating as they
put their paws on his legs.").
48 days at Abu Ghraib, Al-Ejaili was released. Al-Ejaili
Xenakis Rep. 4. As a result of his treatment at Abu Ghraib,
Al-Ejaili has suffered "severe and debilitating"
physical and psychological symptoms. Id. at 5. He
suffers from depression and anxiety, which "spoil his
personal and work life, " because he is unable to do any
broadcasting, freezes when on air, and cannot complete live
reporting due to anxiety attacks. Id. at 5. He has
problems with his memory, attention span, and concentration.
Id. He suffers from frequent nightmares,
"interfering significantly with [his] quality of
sleep." ]d He is prone to angry outbursts that frighten
his wife and children and his relationships with family and
friends have deteriorated. W. He has been diagnosed with
"moderately severe posttraumatic stress disorder"
and "major depressive disorder." Id. at 7.
He also suffers from physical pain and scarring from the
beatings, severe headaches that he traces back to the
beatings to the head, and gastric distress. Id. at
Treatment of Al-Zuba'e
was arrested by American military personnel in November 2003
after he was stopped while driving home with a neighbor. Pl.
Opp. Ex. G. ("Al-Zuba'e Dep.") 19:5-24:15. He
was taken to Abu Ghraib and put in a large room with a number
of other detainees for two days. Id. at 31:17-33:21.
On the third day, civilian guards transferred Al-Zuba'e
to another room, took off his clothes, and instructed him to
masturbate. Id. at 35:10-37:17. Al-Zuba'e
refused, informing them that masturbation was forbidden by
his religion, and one of the civilians touched his penis
until it became erect. Id. at 36:15-: 16, 40:4-41:4.
At that point, another civilian took a picture of his penis.
Id. at 41:1-:9. Once the civilians had taken the
picture, they told Al-Zuba'e to put his clothes back on
and had him transported to another room, where he was left
alone for three or four hours. Id. at 42:3-: 10,
hours later, the same civilians came back to the room, put
bands on Al-Zuba'e's wrists and a black bag on his
head, and took him in a Hummer to the Hard Site. Id.
at 48:8-49:20. When they arrived at the Hard Site, one of the
guards put a rope around Al-Zuba'e's neck and pulled
him out of the Hummer with the rope. Id. at 50:1-:9.
When he cried in pain, the guards repeatedly punched and
kicked him. Id. at 50:10-51:13. After beating
Al-Zuba'e, the guards took him to a room with a group of
soldiers, where they stripped him again. Id. at
52:2-53:13. One of the soldiers hugged Al-Zuba'e's
naked body and told him, "I'm going to
'fiki-fiki' you." Id. at 53:16-:21; Pl.
Opp. Ex. H. A group of guards, including both males and
females, took Al-Zuba'e to a bathroom, where they forced
him into a cold shower with a bar of soap. Al-Zuba'e Dep.
54:4-55:4. They rubbed soap into his eyes and told him that
he had to stay in the cold shower until he had used the
entire bar. Id. at 54:15-55:7; Orig. Def. Mem. Ex. 1
("Al-Zuba'e Int."), at No. 4. At some point,
Al-Zuba'e became so cold that he was no longer able to
stand and he fell on the floor. Al-Zuba'e Dep.
Al-Zuba'e fell, the soldiers dragged him from the
bathroom down to the first floor. Id. at 57:22-58:3.
He lost consciousness and awakened to the guards hitting
him. Id. at 58:15-:18. They forced
him to crawl or slide around the hallway on his stomach while
they beat him until his chest bled. Id. at
58:15-61:7; Al-Zuba'e Int., at No. 4. When they stopped
beating him, the guards brought a dog into the hallway and
allowed the dog to bite Al-Zuba'e's hand and legs.
Al-Zuba'e Dep. 61:8-:22. Rather than provide medical
treatment for these injuries, the guards put bands on
Al-Zuba'e's wrists and a hood on his head and left
him, still naked, in a cell overnight. Id. at
next day, Al-Zuba'e was transported to an interrogation
room, where he was interrogated by two apparently civilian
interrogators with a civilian interpreter for two to three
hours. Id. at 70:10-72:16. At the end of the
questioning, one of the interrogators had a conversation with
a guard which Al-Zuba'e could not hear. Id. at
74:22-76:6, 77:12-: 14. The guard took Al-Zuba'e to a
cell and smashed his head against a wall, causing him to fall
to the ground. Id. at 76:7-: 19. The guard told
Al-Zuba'e to stand up and handcuffed his arms to the
upper bunk such that his arms were above his head and his
feet were barely touching the floor. Id. at
78:13-79:14. Al-Zuba'e was left in this stress position
for an entire day, during which time Al-Zuba'e urinated
and defecated on himself. Id. at 81:14-: 16,
135:21-37:5. Although he was screaming and crying in pain,
the guard told him that he could not release him because the
guard had orders to leave him in the stress position.
Id. at 82:1-83:4.
Al-Zuba'e was unchained from the bed, he was left alone
in the cell for four or five days. Id. at
83:15-84:12. At that point, the same three civilians who had
conducted the first interrogation came to Al-Zuba'e's
cell and transported him back to the interrogation room.
Id. at 85:1-:14. After interrogating Al-Zuba'e,
they again had a conversation with the guard who was guarding
his cell. Id. at 90:19-91:4. The guard took
Al-Zuba'e back to his cell, instructed him to take off
his clothes, and removed all the furniture, with the possible
exception of his bedframe,  from the cell. Id. at
91:11 -93:13. Al-Zuba'e was left alone, naked in the
empty cell, for three days until he became sick. Id.
at 93:15-: 19. At that point, the guards brought
Al-Zuba'e a jumpsuit, put a bag on his head, spun him
around to disorient him, and brought him to "a room
somewhere that was very cold, very cold, very cold, "
where he was questioned for a couple of hours. Id.
this third interrogation, Al-Zuba'e was left in his cell
for ten days, until he was taken back to the interrogation
room. Id. at 100:12-: 15. During this fourth
interrogation, the interrogators threatened to bring
Al-Zuba'e's family to Abu Ghraib if he did not
cooperate. Id. at 101:10-:20. When the interrogation
concluded, Al-Zuba'e was brought back to his cell, was
told to bend over, and was handcuffed to the cell door.
Id. at 102:3-03:14; see also Pl. Opp. Ex. R
(photos of Abu Ghraib detainees in a similar stress
position). At some point, Al-Zuba'e was released from
this stress position and was left in the cell for
approximately twenty days before he was taken to a new
interrogation room with a new set of civilian interrogators.
Al-Zuba'e Dep. 103:11-05:17. When Al-Zuba'e told the
new interrogators that he could not answer their questions,
the interrogation ended with the interrogators hitting
Al-Zuba'e repeatedly and throwing him against the wail.
Id. at 106:1-08:8. After this last interrogation,
Al-Zuba'e was released from the Hard Site. Id.
result of the mistreatment he suffered at the Hard Site,
Al-Zuba'e claims he has suffered "severe and
debilitating symptoms that have persisted since his
release." Pl. Opp. Ex. K ("Al-Zuba'e Xenakis
Rep.") 4. He has been diagnosed with "severe
posttraumatic stress disorder and major depressive
disorder." Id. at 6. He also continues to
suffer from frequent headaches and nightmares that interfere
with his work, social relationships, and ability to sleep.
Id. at 4. He has become "physically and
emotionally abusive to his wives and children, " suffers
from "problems in attention and concentration, "
and "often dissociates or daydreams." Id.
He also suffers from constant fatigue and "persistent
gastric distress." Id. He has also suffered
scarring from the beatings and dog bites and continues to
suffer musculoskeletal aches and pains. Id. at 6;
Al-Zuba'e Int., at No. 4.
Treatment of Al Shimari
Shimari, who was working as a farmer, was arrested by
American forces at his home in early November 2003. Al
Shimari Dep. 13:7-15:4. He was originally taken to a United
States military camp, where he was held for two days while
military personnel conducted an investigation into weapons
that were found in his house. Id. at 22:22-26:15. Al
Shimari was then transported among a variety of military
camps, as the investigation into the weapons continued.
Id. at 28:13-37:5. After he had been in custody for
approximately a month, Al Shimari was transported to Abu
Ghraib, where he was initially stripped naked and had his
body examined by nonmedical personnel. Id. at
next day, Al Shimari was handcuffed, had a bag placed over
his head, and was taken for his first interrogation.
Id. at 41:4-:14. When he got to the interrogation
room, he was forced to kneel on sharp stones and was punched
all over his face. Id. at 41:15-43:15. The sharp
rocks caused lasting damage to his legs, as he is now unable
to stand for extended periods of time and still has scars,
numbness, and pain. Id. at 117:8-18:22; Pl. Opp. Ex.
M. ("Al Shimari Xenakis Rep.") 4. During the
interrogation, either the interrogator or one of the guards
pulled on Al Shimari so hard while he was handcuffed that he
feared his hands would break, and they stepped on his
stomach, back, legs, and head. Al Shimari Dep. 47:9-49:3,
119:1-: 15. After he was interrogated, Al Shimari was taken
to a cold brick room, where he was left-barefoot and without
any food-for a day. Id. at 52:1-54:4.
Shimari was interrogated again the next day for about three
hours. Id. at 54:13-:21. The interrogator forced him
to stand on his toes with his nose against the wall during
the interrogation and, at various times, ordered the guard to
hit Al Shimari against the wall. Id. at 55:2-57:14.
Although the interrogator threatened to keep Al Shimari in
this stress position overnight, he only forced him to stand
against the wall for approximately three hours. Id.
at 56:13-: 19. At the end of the interrogation, the guard
tied Al Shimari's hands behind his back and beat him all
over his body, including on his head and face. Id.
at 58:1-: 15.
week later, Al Shimari was taken for a third interrogation,
which lasted approximately four hours. Id. at
59:4-62:15. During this interrogation, the civilian
interrogator forced Al Shimari to sit with his handcuffed
hands behind his back facing a window. Id. at 63:2-:
12, 66:1 -: 11. The civilian brought a dog to the other side
of the window and threatened to have the dog bite Al
Shimari's hands if he was uncooperative. Id. at
66:1-:11. After this interrogation, the civilian interrogator
directed the guards to shave Al Shimari's hair and
mustache, force him into a cold shower with a bar of soap
until the entire bar was dissolved, and give him a soaked
jumpsuit to wear, Id. at 67:19-70:6.
after these three initial interrogations, Al Shimari was
continuously mistreated during his forty days at the Hard
Site. On at least one occasion, guards brought a dog to his
cell and threatened him with it, allowing the dog to lunge at
him and putting a blanket over his head and allowing the dog
to bite it. Id. at 77:16-78:6. In addition, his cell
was often kept extremely dark, loud music was played nearby,
and guards would often douse him with water. Id. at
86:20-89:9. At one point, an interrogator threatened to bring
Al Shimari's wife to Abu Ghraib if he did not confess,
and on a separate occasion, an interrogator threatened to
shoot him. Id. at 90:12-: 19, 100:4-01:8. The guards
routinely beat Al Shimari, including with a baton stick and
rifle and sometimes in the face and on the genitals, which
resulted in his teeth falling out and his being unable to
have children. Id. at 97:4-98:8, 102:2-:5,
105:4-:11: see also Al Shimari Xenakis Rep. 4. The
guards sometimes wired Al Shimari to electric equipment that
they called a lie detector and would shock him while
interrogating him, resulting in lasting scars. Al Shimari
Dep. 102:8-03:13; Al Shimari Xenakis Rep. 11-12. They also
dragged Al Shimari to and from interrogations using a rope
tied around his neck. Al Shimari Dep. 103:19-04:19. In
addition, on multiple occasions, guards inserted their
fingers into Al Shimari's rectum. Id. at
mistreatment Al Shimari suffered resulted in "severe and
debilitating symptoms that manifested in the early days of
his detention and have persisted since his release." Al
Shimari Xenakis Rep. 6. He continues to suffer from multiple
"musculoskeletal aches and pains" and has
"scarring that he attributes to beatings."
Id. at 8. He has been diagnosed with
"moderately severe postconcussive syndrome attributable
to multiple beatings on the head with loss of consciousness,
" post-traumatic stress disorder, and major depressive
disorder. Id. at 8-9. He has trouble sleeping, often
dissociates for extended periods of time, and suffers severe
headaches multiple times each week. Id. at 6. At
this point, he appears unable to have any more children, and
his relationship with his wife has suffered. Id. He
often feels angry without provocation and has emotional
outbursts, which have resulted in abusive behavior toward his
family and hurt his children's performance in school.
30, 2008, Al Shimari filed this civil action in the United
States District Court for the Southern District of Ohio
against then-defendants Dugan; CACI International, Inc.
("CACI International"); CACI; and L-3 Services,
Inc., alleging three substantive violations of the law of
nations under the ATS: torture, CIDT, and war crimes. [Dkt.
No. 2]. For each substantive violation, Al Shimari also
alleged separate counts of civil conspiracy and aiding and
abetting. Id. In addition, he alleged eleven common
law causes of action. Id. In August 2008, the civil
action was transferred to this court at the request of the
parties and was assigned to Judge Gerald Bruce Lee. [Dkt. No.
16]. Shortly thereafter, Dugan and L-3 Services, Inc. were
voluntarily dismissed without prejudice. [Dkt. Nos. 21 &
September 15, 2008, the Amended Complaint, which added
Rashid, Al-Ejaili, and Al-Zuba'e as plaintiffs, was
filed. [Dkt. No. 28]. CACI and CACI International moved to
dismiss the Amended Complaint, arguing that plaintiffs'
claims presented nonjusticiable political questions, that
defendants were immune from suit, that plaintiffs failed to
state factual allegations sufficient to demonstrate a
plausible entitlement to relief, that plaintiffs' claims
were preempted by the Combatant Activities Exception to the
Federal Tort Claims Act ("FTCA"), that
plaintiffs' ATS claims were not cognizable, and that
plaintiffs had failed to allege facts sufficient to establish
respondeat superior liability. [Dkt. Nos. 34 &
35]. CACI and CACI International also filed a Motion for
Partial Summary Judgment, arguing that the newly-added
plaintiffs' common law tort claims were barred by the
statute of limitations. [Dkt. Nos. 44 & 45].
November 25, 2008, the Motion for Partial Summary Judgment
was denied after the court found that Rashid, Al-Ejaili, and
Al-Zuba'e fell into the definition of a class proposed in
Saleh v. Titan Corp., No. 04-cv-1143 (S.D. Cal.),
which tolled the statute of limitations on their tort claims
from the time the Saleh civil action was filed until
the time class certification was denied. [Dkt. No. 76]. On
March 18, 2009, Judge Lee granted the Motion to Dismiss
"to the extent that [the Amended Complaint's] claims
invoke ATS jurisdiction, " because he was
"unconvinced that a suit against private civilian
interrogators falls within the class of hybrid international
norms in existence when the ATS was enacted." Al
Shimari v. CACI Premier Tech., Inc., 657 F.Supp.2d 700,
728 (E.D. Va. 2009); [Dkt. No. 94]. At the same time, Judge
Lee held that plaintiffs' claims were justiciable, that
defendants were not entitled to immunity, that
plaintiffs' claims were not preempted, that plaintiffs
alleged sufficient facts to support vicarious liability, that
plaintiff sufficiently alleged conspiratorial liability, and
that plaintiffs sufficiently alleged direct involvement by
defendants' employees in the tortious conduct.
Id. at 731-32.
and CACI International filed an interlocutory appeal,
challenging the rulings on immunity, preemption, and the
political question doctrine. The Fourth Circuit reversed the
district court, concluding "based on the uniquely
federal interests involved in this case, that the
plaintiffs' tort claims are preempted and displaced under
the reasoning articulated in [Boyle v. United
Technologies Corp., 487 U.S. 500 (1988), ] as applied to
circumstances virtually identical to those before us in
Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir.
2009)." Al Shimari v. CACI Int'l, Inc.
(Al Shimari I), 658 F.3d 413, 417 (4th Cir. 2011).
Plaintiffs filed a petition for rehearing en banc,
which was granted, vacating the panel decision. The en
banc Fourth Circuit dismissed the appeal, concluding
that it lacked jurisdiction over the interlocutory appeal. Al
Shimari v. CACI Int'l Inc. (Al Shimari II), 679
F.3d 205, 212 (4th Cir. 2012) (en banc).
remand, plaintiffs filed a Motion for Reconsideration, in
which they asked Judge Lee to revisit his previous ruling
dismissing their ATS claims in light of subsequent case law.
[Dkt. Nos. 144 & 145]. Plaintiffs' motion was
granted, and their ATS claims were reinstated. [Dkt. No.
159]. After the claims were reinstated, plaintiffs filed a
Second Amended Complaint, which included the same parties and
claims as the Amended Complaint. [Dkt. No. 177]. Three weeks
later, on January 14, 2013, CACI and CACI International each
filed a Motion to Dismiss. [Dkt. Nos. 180 & 183]. CACI
argued that the Second Amended Complaint did not
appropriately plead conspiracy claims, and CACI International
argued that the Second Amended Complaint did not allege facts
sufficient to support holding CACI International liable for
the actions of the interrogators, who were CACI, not CACI
International, employees. [Dkt. Nos. 181 & 184]. Judge
Lee granted both motions, dismissing without prejudice
plaintiffs' claims alleging a conspiracy ...