The opinion of the court was delivered by: Trager, J.
Plaintiff Maher Arar brings this action against defendants, U.S. officials, who allegedly held him virtually incommunicado for thirteen days at the U.S. border and then ordered his removal to Syria for the express purpose of detention and interrogation under torture by Syrian officials. He brings claims under the Torture Victim Prevention Act and the Fifth Amendment to the U.S. Constitution.
Defendants have filed motions to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The questions presented by these motions are whether the facts alleged can give rise to any theory of liability under those provisions of law and, if so, whether those claims can survive on prudential grounds in light of the national-security and foreign policy issues involved.
All statements contained in parts (1) through (4) in this background section of the opinion are taken from the complaint, attached exhibits, or documents referred to in the complaint and are presumed true for the limited purposes of these motions to dismiss. The alleged facts will be presented as they have been pled and will be borrowed liberally from the complaint.
Plaintiff Maher Arar ("Arar" or "plaintiff") is a 33-year-old native of Syria who immigrated to Canada with his family when he was a teenager. He is a dual citizen of Syria and Canada and presently resides in Ottawa. In September 2002, while vacationing with family in Tunisia, he was called back to work by his employer to consult with a prospective client. He purchased a return ticket to Montreal with stops in Zurich and New York and left Tunisia on September 25, 2002.
On September 26, 2002, Arar arrived from Switzerland at John F. Kennedy Airport ("JFK Airport") in New York to catch a connecting flight to Montreal. Upon presenting his passport to an immigration inspector, he was identified as "the subject of a . . . lookout as being a member of a known terrorist organization." Complaint ("Cplt.") Ex. D (Decision of J. Scott Blackman, Regional Director) at 2. He was interrogated by various officials for approximately eight hours. The officials asked Arar if he had contacts with terrorist groups, which he categorically denied. Arar was then transported to another site at JFK Airport, where he was placed in solitary confinement. He alleges that he was transported in chains and shackles and was left in a room with no bed and with lights on throughout the night.
The following morning, September 27, 2002, starting at approximately 9:00 a.m., two FBI agents interrogated Arar for about five hours, asking him questions about Osama bin Laden, Iraq and Palestine. Arar alleges that the agents yelled and swore at him throughout the interrogation. They ignored his repeated requests to make a telephone call and see a lawyer. At 2:00 p.m. that day, Arar was taken back to his cell, chained and shackled and provided a cold McDonald's meal -- his first food in nearly two days.
That evening, Arar was given an opportunity to voluntarily return to Syria, but refused, citing a fear of being tortured if returned there and insisting that he be sent to Canada or returned to Switzerland. An immigration officer told Arar that the United States had a "special interest" in his case and then asked him to sign a form, the contents of which he was not allowed to read. That evening, Arar was transferred, in chains and shackles, to the Metropolitan Detention Center ("MDC") in Brooklyn, New York, where he was strip-searched and placed in solitary confinement. During his initial three days at MDC, Arar's continued requests to meet with a lawyer and make telephone calls were refused.
On October 1, 2002, the Immigration and Naturalization Service ("INS") initiated removal proceedings against Arar, who was charged with being temporarily inadmissible because of his membership in al Qaeda, a group designated by the Secretary of State as a foreign terrorist organization. Upon being given permission to make one telephone call, Arar called his mother-inlaw in Ottawa, Canada.
Upon learning Arar's whereabouts, his family contacted the Office for Consular Affairs ("Canadian Consulate") and retained an attorney, Amal Oummih, to represent him. The Canadian Consulate had not been notified of Arar's detention. On October 3, 2002, Arar received a visit from Maureen Girvan from the Canadian Consulate, who, when presented with the document noting Arar's inadmissibility within the U.S., assured Arar that removal to Syria was not an option. On October 4, 2002, Arar designated Canada as the country to which he wished to be removed.
On October 5, 2002, Arar had his only meeting with counsel. The following day, he was taken in chains and shackles to a room where approximately seven INS officials questioned him about his reasons for opposing removal to Syria. His attorney was not provided advance notice of the interrogation, and Arar further alleges that U.S. officials misled him into thinking his attorney had chosen not to attend. During the interrogation, Arar continued to express his fear of being tortured if returned to Syria. At the conclusion of the six-hour interrogation, Arar was informed that the officials were discussing his case with "Washington, D.C." Arar was asked to sign a document that appeared to be a transcript. He refused to sign the form.
The following day (October 7, 2002), attorney Oummih received two telephone calls informing her that Arar had been taken for processing to an INS office at Varick Street in Manhattan, that he would eventually be placed in a detention facility in New Jersey and that she should call back the following morning for Arar's exact whereabouts. However, Arar alleges that he never left MDC and that the contents of both of these phone calls to his counsel were false and misleading.
That same day, October 7, 2002, the INS Regional Director, J. Scott Blackman, determined from classified and unclassified information that Arar is "clearly and unequivocally" a member of al Qaeda and, therefore, "clearly and unequivocally inadmissible to the United States" under 8 U.S.C. § 1182(a)(3)(B)(i)(V). See Cplt. Ex. D. at 1, 3, 5. Based on that finding, Blackman concluded "that there are reasonable grounds to believe that [Arar] is a danger to the security of the United States." Id. at 6.
At approximately 4:00 a.m. on October 8, 2002, Arar learned that, based on classified information, INS regional director Blackman had ordered that Arar be sent to Syria and that his removal there was consistent with Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT"). Arar pleaded for reconsideration but was told by INS officials that the agency was not governed by the "Geneva Conventions" and that Arar was barred from reentering the country for a period of five years and would be admissible only with the permission of the Attorney General.
Later that day, Arar was taken in chains and shackles to a New Jersey airfield, where he boarded a small jet bound for Washington, D.C. From there, he was flown to Amman, Jordan, arriving there on October 9, 2002. He was then handed over to Jordanian authorities, who delivered him to the Syrians later that day. At this time, U.S. officials had not informed either Canadian Consulate official Girvan or attorney Oummih that Arar had been removed to Syria. Arar alleges that Syrian officials refused to accept Arar directly from the United States.
Arar's Final Notice of Inadmissability ("Final Notice") ordered him removed without further inquiry before an immigration judge. See Cplt. Ex. D. According to the Final Notice: "The Commissioner of the Immigration and Naturalization Service has determined that your removal to Syria would be consistent with [CAT]." Id. It was dated October 8, 2002, and signed by Deputy Attorney General Larry Thompson. After oral argument on these motions to dismiss, in a letter dated August 18, 2005, counsel for Arar clarified that he received the Final Notice within hours of boarding the aircraft taking him to Jordan. See Dkt. No. 93.
During his ten-month period of detention in Syria, Arar alleges that he was placed in a "grave" cell measuring six-feet long, seven feet high and three feet wide. The cell was located within the Palestine Branch of the Syrian Military Intelligence ("Palestine Branch"). The cell was damp and cold, contained very little light and was infested with rats, which would enter the cell through a small aperture in the ceiling. Cats would urinate on Arar through the aperture, and sanitary facilities were nonexistent. Arar was allowed to bathe himself in cold water once per week. He was prohibited from exercising and was provided barely edible food. Arar lost forty pounds during his ten-month period of detention in Syria.
During his first twelve days in Syrian detention, Arar was interrogated for eighteen hours per day and was physically and psychologically tortured. He was beaten on his palms, hips and lower back with a two-inch-thick electric cable. His captors also used their fists to beat him on his stomach, face and back of his neck. He was subjected to excruciating pain and pleaded with his captors to stop, but they would not. He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a spine-breaking "chair," hung upside down in a "tire" for beatings and subjected to electric shocks. To lessen his exposure to the torture, Arar falsely confessed, among other things, to having trained with terrorists in Afghanistan, even though he had never been to Afghanistan and had never been involved in terrorist activity.
Arar alleges that his interrogation in Syria was coordinated and planned by U.S. officials, who sent the Syrians a dossier containing specific questions. As evidence of this, Arar notes that the interrogations in the U.S. and Syria contained identical questions, including a specific question about his relationship with a particular individual wanted for terrorism. In return, the Syrian officials supplied U.S. officials with all information extracted from Arar; plaintiff cites a statement by one Syrian official who has publicly stated that the Syrian government shared information with the U.S. that it extracted from Arar. See Cplt. Ex. E (January 21, 2004 transcript of CBS's Sixty Minutes II: "His Year In Hell").
The Canadian Embassy contacted the Syrian government about Arar on October 20, 2002, and, the following day, Syrian officials confirmed that they were detaining him. At this point, the Syrian officials ceased interrogating and torturing Arar.
Canadian officials visited Arar at the Palestine Branch five times during his ten-month detention. Prior to each visit, Arar was warned not to disclose that he was being mistreated. He complied but eventually broke down during the fifth visit, telling the Canadian consular official that he was being tortured and kept in a grave.
Five days later, Arar was brought to a Syrian investigation branch, where he was forced to sign a confession stating that he had participated in terrorist training in Afghanistan even though, Arar states, he has never been to Afghanistan or participated in any terrorist activity. Arar was then taken to an overcrowded Syrian prison, where he remained for six weeks.
On September 28, 2003, Arar was transferred back to the Palestine Branch, where he was held for one week. During this week, he heard other detainees screaming in pain and begging for their torture to end.
On October 5, 2003, Syria, without filing any charges against Arar, released him into the custody of Canadian Embassy officials in Damascus. He was flown to Ottawa the following day and reunited with his family.
Arar contends that he is not a member of any terrorist organization, including al Qaeda, and has never knowingly associated himself with terrorists, terrorist organizations or terrorist activity. He claims that the individual about whom he was questioned was a casual acquaintance whom Arar had last seen in October 2001. He believes that he was removed to Syria for interrogation under torture because of his casual acquaintances with this individual and others believed to be involved in terrorist activity. But Arar contends "on information and belief" that there has never been, nor is there now, any reasonable suspicion that he was involved in such activity.*fn1 Cplt. ¶ 2.
Arar alleges that he continues to suffer adverse effects from his ordeal in Syria. He claims that he has trouble relating to his wife and children, suffers from nightmares, is frequently branded a terrorist and is having trouble finding employment due to his reputation and inability to travel in the United States.
The complaint alleges on information and belief that Arar was removed to Syria under a covert U.S. policy of "extraordinary rendition," according to which individuals are sent to foreign countries to undergo methods of interrogation not permitted in the United States. The extraordinary rendition policy involves the removal of "non-U.S. citizens detained in this country and elsewhere and suspected -- reasonably or unreasonably -- of terrorist activity to countries, including Syria, where interrogations under torture are routine." Cplt. ¶ 24. Arar alleges on information and belief that the United States sends individuals "to countries like Syria precisely because those countries can and do use methods of interrogation to obtain information from detainees that would not be morally acceptable or legal in the United States and other democracies." Id. The complaint further alleges that "these officials have facilitated such human rights abuses, exchanging dossiers with intelligence officials in the countries to which non-U.S. citizens are removed." Id. The complaint also alleges that the U.S. involves Syria in its extraordinary rendition program to extract counter-terrorism information.
This extraordinary rendition program is not part of any official or declared U.S. public policy; nevertheless, it has received extensive attention in the press, where unnamed U.S. officials and certain foreign officials have admitted to the existence of such a policy. Plaintiff details a number of articles in the mainstream press recounting both the incidents of this particular case and the extraordinary rendition program more broadly. These articles are attached as Exhibit C of his complaint.
Arar alleges that defendants directed the interrogations by providing information about Arar to Syrian officials and receiving reports on Arar's responses. Consequently, the defendants conspired with, and/or aided and abetted, Syrian officials in arbitrarily detaining, interrogating and torturing Arar. Plaintiff argues in the alternative that, at a minimum, defendants knew or at least should have known that there was a substantial likelihood that he would be tortured upon his removal to Syria.
Arar's claim that he faced a likelihood of torture in Syria is supported by U.S. State Department reports on Syria's human rights practices. See, e.g., Bureau of Democracy, Human Rights, and Labor, United States Department of State, 2004 Country Reports on Human Rights Practices (Released February 28, 2005) ("2004 Report"). According to the State Department, Syria's "human rights record remained poor, and the Government continued to commit numerous, serious abuses . . . includ[ing] the use of torture in detention, which at times resulted in death." 2004 Report at 1. Although the Syrian constitution officially prohibits such practices, "there was credible evidence that security forces continued to use torture frequently." Id. at 2. The 2004 report cites "numerous cases of security forces using torture on prisoners in custody." Id. Similar references throughout the 2004 Report, as well as State Department reports from prior years, are legion. See, e.g., Cplt. Ex. A (2002 State Department Human Rights Report on Syria).
Arar seeks both declaratory and monetary relief. With respect to declaratory relief, he has sued John Ashcroft, Robert Mueller, Tom Ridge and Paula Corrigan in their official capacities. The United States has moved to dismiss these claims under Rule 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
With respect to monetary relief, Arar has sued John Ashcroft, Robert Mueller, J. Scott Blackman, James W. Ziglar, Edward J. McElroy and Larry D. Thompson in their personal capacities. Each of these defendants has filed a separate motion to dismiss these claims under Rules 12(b)(1) and 12(b)(6).
The complaint also names ten John Doe law enforcement agents employed by the FBI or INS who, singly or collectively, subjected Arar to coercive and involuntary custodial interrogation and unreasonably harsh and punitive conditions of detention.
Arar raises four claims for relief.
First, he alleges that defendants violated the Torture Victim Prevention Act by conspiring with and/or aiding and abetting Jordanian and Syrian officials to bring about his torture (Count 1).
Second, Arar alleges that defendants violated his rights under the Fifth Amendment to the U.S. Constitution ("Fifth Amendment") by knowingly and intentionally subjecting him to torture and coercive interrogation in Syria (Count 2).
Third, Arar alleges that as a result of the actions of the defendants, he was subjected to arbitrary and indefinite detention in Syria, including the denial of access to counsel, the courts and his consulate, all of which also violated the Fifth Amendment (Count 3).
Fourth, Arar alleges that he suffered outrageous, excessive, cruel, inhumane and degrading conditions of confinement in the United States, was subjected to coercive and involuntary custodial interrogation and deprived of access to lawyers and courts, in violation of the Fifth Amendment (Count 4). Although Arar's complaint also alleges that defendants violated "treaty law," he appears to have abandoned any such claims in the subsequent briefing.
As clarified at oral argument, Arar seeks a declaratory judgment with respect to Counts 2, 3 and 4 and compensatory and punitive damages with respect to all four counts.
A motion to dismiss under Rule 12(b)(1) tests the jurisdictional basis for the underlying complaint. Under Rule 12(b)(1), a "plaintiff has the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists." Lunney v. U.S., 319 F.3d 550, 554 (2d Cir. 2003). When defendants move to dismiss under Rule 12(b)(1), "a court accepts as true all the factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff." Id.
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Under Rule 12(b)(6), a "court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) ("[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.").
Arar seeks a declaration that his detention in the United States and his detention and torture in Syria violated his rights under the Due Process Clause of the U.S. Constitution. The United States (or the "government"), on behalf of the defendants sued in their official capacities,*fn2 argues that Arar lacks standing to bring a claim for declaratory relief because the challenged activity is neither ongoing nor likely to impact him in the future. The government further argues that the injuries for which Arar seeks declaratory relief are not redressable or fairly traceable to the underlying actions Arar challenges in this lawsuit.
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court articulated three elements necessary to establish Article III standing:
First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) "actual or imminent, not 'conjectural' or 'hypothetical.' " . . . Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." . . . Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." . . . Id. at 560-61, 112 S.Ct. at 2136 (citations and footnote omitted).
In his opposition brief, and as clarified at oral argument, Arar states that he seeks a declaratory judgment invalidating his domestic detention as well as his removal to, and torture in, Syria. At the same time, however, Arar contends that his only continuing injury is a five-year bar to re-entry. Defendants argue that this injury is untethered to the detention, torture and unlawful conditions of confinement at the heart of this suit and that, therefore, Arar's claim for declaratory relief fails to satisfy the requisite constitutional minima needed for Article III standing.
Plaintiff argues that Swaby v. Ashcroft, 357 F.3d 156 (2d Cir. 2004), establishes his standing to sue. In Swaby, a deported alien brought a habeas petition challenging the determination that he was ineligible for a waiver of deportation.
The government argued that Swaby's deportation, which occurred before he filed suit, rendered it moot, but the Second Circuit held that the deportation would not moot any "immigration appeal or a collateral attack on an order of removal." Id. at 160, n.8. The Second Circuit reasoned that a favorable ruling on the merits would vacate the order of removal, rendering the petitioner eligible to return to the United States. In that regard, his lifetime bar from reentering the United States constituted an "actual injury" with "a sufficient likelihood of being redressed by the relief petitioner seeks from this Court." Id. at 160.
The circumstances of Swaby are not present here. At the outset, Arar avers in his opposition brief that he "does not challenge his removal order." Pl. Mem. at 15. Moreover, he "does not complain about the decision to classify him as inadmissible into the United States." Id. at 13. Thus, any judgment declaring unlawful the conditions of his detention or his removal to Syria would not alter in any way his ineligibility to re-enter this country. Consequently, Arar's claim for declaratory relief fails to meet the requirement in Lujan that it be "'likely,' as opposed to merely 'speculative,' that the injury" - for these purposes, the bar to re-entry - would "be 'redressed by a favorable decision.'" Id. at 561, 112 S.Ct. at 2136 (citations and footnote omitted).*fn3 Arar's request for declaratory relief is therefore denied with respect to all counts, and all claims against defendants sued in their official capacities are dismissed.*fn4
(3) Torture Victim Protection Act
Count 1 of plaintiff's complaint alleges that the individually named defendants violated the Torture Victim Protection Act (or "TVPA"), Pub. L. No. 102-256, 106 Stat. 73 (enacted March 12, 1992) (codified as Note to 28 U.S.C. § 1350), by conspiring with and/or aiding and abetting unnamed Jordanian and Syrian officials in bringing about Arar's torture in Syria.*fn5
The Torture Victim Protection Act was enacted in 1992 to provide a cause of action in cases of officially sanctioned torture and extra-judicial killing. It states:
An individual who, under actual or apparent authority, or color of law, of any foreign nation ---
(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
(2) subjects an individual to extra-judicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.
TVPA § 2(a). Torture is defined under the TVPA as 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 individual 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 ...