WISSAM ABDULLATEFF SA'EED AL-QURAISHI v. NAKHLA

d both of which were therefore public functions. Id. at 1225-26. While simply carrying out a government contract overseas was deemed insufficient to trigger a public function, the martial nature of the contractors' duties in that particular circumstance made them a public function. Id. at 1227-28.

In the present case, Defendants are alleged to have operated alongside the military, carrying out a military task which likely would have been performed by the military itself under other circumstances. See Ibrahim v. Titan Corp., 556 F. Supp 2d 1, 5-6 (D.D.C. 2007) (indicating that the Government used contract linguists since "[t]he military could not provide for the large number of linguists that were needed" for the conflicts in Iraq and Afghanistan). In view of this, Defendants' work for the military in Iraq may appropriately be viewed as a public function.

The Court notes that in some color of law contexts, there must be a nexus between the indicia of state action and the specific acts comprising the alleged tort. In this case, however, the Court need not decide whether there is such a nexus between the behavior which constitutes the public function (i.e. translation work for the military) and the allegedly unauthorized and illegal behavior which constitutes the tort (i.e. the torturing of detainees). The Fourth Circuit has determined that when a defendant is found to have been performing a public function, such that it has acted under color of law, the defendant "may be held liable as a state actor without the demonstration of a nexus — a connection between the indicia of state action and the specific acts comprising the alleged [tort] — that has been required in other contexts." Goldstein v. Chestnut Ridge Fire Co., 218 F.3d 337, 348 (4th Cir. 2000).

As an alternative basis for finding that Defendants acted under color of law, Plaintiffs have alleged that Defendants conspired with at least some members of the military in committing tortious acts, such that Defendants might also meet the joint action test. By this test, state action "does not require that the defendant be an officer of the State." Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). "[P]rivate persons who willfully participate in joint action with a state official act under the color of law." Scott v. Greeneville County, 716 F.2d 1409, 1422 (4th Cir. 1983) (citation omitted). Further, the private actor may be deemed to act under the color of law "notwithstanding the official's immunity from civil liability." Id.; Dennis, 449 U.S. at 28. Looking to the Complaint in this case, Plaintiffs claim that certain members of the military, indisputably state actors, conspired and acted together with Defendants to commit the alleged acts of torture. See Pl.'s Second Am. Compl. ¶¶ 419, 424, 445(d), 450, 456. Taking these allegations as true, as at this stage the Court must, Plaintiffs have properly alleged joint action between Defendants and state actors such that Defendants may be deemed to have acted under color of law. See, e.g., Jackson v. Pantazes, 810 F.2d 426, 429-30 (4th Cir. 1987) (private bail bondsman who was accompanied by police officers when entering and ransacking home to search for bail jumper acted under color of law under joint action theory).

In sum, since Plaintiffs in various ways have properly asserted that Defendants acted under color of law, their ATS claims for torture and CIDT (Counts 1-6) may proceed at this time.

(b). Whether the Determination That Defendants Acted Under Color of Law Necessarily Means That Defendants Have Sovereign Immunity

Defendants maintain that if they are found to have acted under the color of law such that Plaintiffs' ATS torture and CIDT claims may proceed, then their actions would become official actions of the United States and as a result they would enjoy sovereign immunity. Thus, say Defendants, even if the ATS claims could be deemed viable on the former basis, they would still need to be dismissed on the latter basis. The Court disagrees. A person may have acted under color of law, yet still not have acted in an official capacity so as to gain the benefit of sovereign immunity.

"Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law." United States v. Classic, 313 U.S. 299, 326 (1941). The Supreme Court long ago accepted that a person may act under color of law even when there is no legal basis or authority for his or her actions. See Monroe v. Pape, 365 U.S. 167, 172 (1961) (police officers who conducted warrantless search and arrest acted under color of law even though their actions were illegal under both the U.S. Constitution and the laws of their state), overruled in part on other grounds by Monell v. Dep't of Soc. Servs. Of City of New York, 436 U.S. 658, 663 (1978). In such cases, the tortious acts occur not because the wrongdoers have acted in an official capacity, but because the wrongdoers have exploited a veneer of perceived authority granted to them under the law to carry out the wrongful acts. See United States v. Price, 383 U.S. 787, 795-96 (1996) (finding that sheriffs and civilians who kidnapped, beat, and murdered civil rights workers acted under color of law but rejecting any requirement "that each offender be an official or that he act in an official capacity").

Filartiga v. Pena-Irela, the seminal ATS case, dealt with the torture and murder of a Paraguayan citizen by a police officer. 630 F.2d 876, 878 (2d Cir. 1980). The Second Circuit noted the distinction between official governmental acts and those which occur separately and distinctly under the color of law, stating

[W]e doubt whether action by a state official in violation of the Constitution and laws of the Republic of Paraguay, and wholly unratified by that nation's government, could properly be characterized as an act of state. Paraguay's renunciation of torture as a legitimate instrument of state policy, however, does not strip the tort of its character as an international law violation, if it in fact occurred under color of government authority.

630 F.2d at 889-890 (citation omitted).

The Supreme Court, in discussing the difference between acts taken in an "official capacity" and those taken "under color of legal authority," recognized the distinction in part "as an effort to circumvent the sovereign immunity doctrine." Stafford v. Briggs, 444 U.S. 527, 536 n. 6 (1980). The idea that wrongful acts which occur under the color of law are individual in nature and not official may simply be "a legal fiction." Id. at 546 (Stewart, J., dissenting). Nevertheless, the practical effect has been to allow such suits to proceed. Were it otherwise, every suit for damages based on actions taken under color of law, such as § 1983 suits and Bivens actions, would have to be dismissed on sovereign immunity grounds. And that is why such suits are viewed as being against the defendant in an individual capacity and not an official capacity, even though the alleged bad acts still retain their color of law character. See DeLong v. Internal Revenue Service, 908 F.2d 966, 1990 WL 101402, at *1 (4th Cir. 1990) (table opinion) (whether suit is against defendant in his official capacity or his individual capacity turns "on whom the plaintiff is seeking to impose liability; in both cases, the official is acting under color of law," but "the defense of sovereign immunity is unavailable to those" sued in their individual capacity); see also Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) ( Bivens action "must be brought against [the defendants] in their individual capacities. . . . Because an action against [the defendants] in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity").

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Since color of law jurisprudence encompasses individual behavior and not just official behavior, there is no contradiction in finding that Defendants acted under color of law but that their actions were individual and not official actions. Plaintiffs seek redress from private defendants, as opposed to the U.S. Government. That Defendants may have acted under color of law does not trigger sovereign immunity and does not require dismissal on that basis.

In a similar vein, Defendants suggest that conspiracies are secretive and therefore cannot occur under color of law. L-3 Reply Mem., at 17-18. This contention fails to take into account cases such as Tower v. Glover, 467 U.S. 914, 920 (1984) (recognizing that "an otherwise private person acts under color of state law when engaged in a conspiracy with state officials" and upholding § 1983 claim against criminal defense attorney alleged by former client to have conspired with state prosecutors to secure client's conviction) (quotation marks omitted).

C. Whether Corporations Are Subject to the ATS

L-3 argues that, regardless of whether private parties who are natural persons are subject to the law of nations, corporate entities are not, and therefore the ATS claims against them must be dismissed. Again the Court disagrees.

There is no basis for differentiating between private individuals and corporations in this respect since "[a] private corporation is a juridical person and has no per se immunity under U.S. domestic or international law." Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 319 (S.D.N.Y. 2003) (allowing ATS claims to proceed against a private corporation); see also Romero v. Drummond Corp., 552 F.3d 1303, 1315 (11th Cir. 2008) ("The text of the Alien Tort Statute provides no express exception for corporations, and the law of this Circuit is that this statute grants jurisdiction from complaints of torture against corporate defendants.") (citation omitted); In re XE Services, 665 F. Supp. 2d at 588 (holding that "[n]othing in the ATS or Sosa may plausibly be read to distinguish between private individuals and corporations"); In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7, 59 (S.D.N.Y 2005) (noting that "an ATS claim is a federal common law claim and it is a bedrock tenet of American law that corporations can be held liable for their torts"). Courts have "repeatedly treated the issue of whether corporations may be held liable under the [ATS] as indistinguishable from the question of whether private individuals may be." Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254, 282 (2d Cir. 2007) (Katzmann, J., concurring in per curiam opinion, joined by Hall, J.); Bowoto v. Chevron Corp., 2006 WL 2455752, at *9 (N.D. Cal. Aug. 22, 2006) (determining that once "an international norm has become sufficiently well established to reach private actors, there is very little reason to differentiate between corporations and individuals."). Since the Court has already determined that the law of nations extends to the parties in this case, they may be held liable regardless of whether they exist in a natural form or a corporate form.

The arguments put forth by L-3 for disallowing claims against corporations do not affect this analysis. L-3 cites the Supreme Court's decision in Correctional Services Corp. v. Malesko, which declined to allow Bivens actions to proceed against private corporate entities, and asks this Court to apply that principle to ATS cases. 534 U.S. 61, 63 (2001). In Malesko, the Supreme Court declared that "Bivens' purpose is to deter individual federal officers, not the agency, from committing constitutional violations . . . [and] the threat of suit against an individual's employer was not the kind of deterrence contemplated by Bivens." Id. at 69. "[I]f a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury." Id. at 71. Since "there would be no reason for aggrieved parties to bring damages actions against individual officers," "[t]he deterrent effects of the Bivens remedy would be lost." Id. at 70 (quoting Fed. Deposit Ins. Corp. v. Meyers, 510 U.S. 471, 485 (1994)). There is no reason to apply this reasoning to ATS cases. No court has held that ATS suits only exist to serve as a deterrent to tortfeasors who are natural individuals in the same way Bivens suits do. On the contrary, ATS suits serve the full panoply of tort goals, including compensation of the victim, punishment of the wrongdoer, and deterrence of both direct and indirect actors. As stated in Tachiona v. Mugabe,

Like all other civil remedies, the causes of action authorized by the [ATS] and [the Torture Victim Protection Act] are intended to compensate victims and punish and deter the perpetrators. Were liability in such cases to be limited so as to permit recovery only from the particular natural individuals who actually commit the underlying wrongful acts, the result would effectively nullify the purposes of the statutes. Frequently the role of specified front-line actors in larger conspiracies is merely to execute the plans or follow orders issued by the scheme's leaders and institutional organizers. The lesser participants, though no less responsible, may have the least ability to evade jurisdiction or to satisfy a judgment of liability. Conversely, to exempt the organized perpetrators would allow an escape for actors with primary responsibility, encourage subterfuge and release the only players who may possess the resources to enable collection on any judgment rendered to the victims of the unlawful scheme.

169 F. Supp. 2d 259, 312 (S.D.N.Y. 2001), rev'd in part on other grounds, 386 F.3d 205 (2d. Cir. 2004); see also In re Agent Orange, 373 F. Supp. 2d at 58 ("Limiting civil liability to individuals while exonerating the corporation directing the individual's action through its complex operations and changing personnel makes little sense in today's world."). Since ATS suits do not have the same limited purpose as Bivens actions, there is no basis for applying the same limiting principles.

The Court recognizes that in Al Shimari v. CACI Premier Technologies, Inc., the District Court for the Eastern District of Virginia dismissed ATS claims factually similar to those in the present case on the basis that ATS claims may not proceed against private individuals, and that claims against military contractors serving as interrogators in particular are too novel. 657 F. Supp. 2d 700, 727-28 (E.D. Va. 2009). Based on its review of international law in Parts VI.B.1 and VI.B.2 of this Opinion, this Court believes that the legal status of the claims in this case is sufficiently well established with respect to suits against private actors to allow them to go forward. As for the concern that suits against military contractors serving as interrogators are "too novel," the Court finds no reason to distinguish between contractor-interrogators and other types of private entities.

L-3 also argues that the Torture Victim Protection Act ("TVPA"), as a companion statute to the ATS, does not allow suits against corporate defendants and that that statute should guide interpretation of the ATS and the law of nations. The Court is not persuaded.

The TVPA provides a civil cause of action for torture and summary execution committed under the authority or color of foreign law. 28 U.S.C. § 1350, statutory note, sec. 2(a). Unlike the ATS, which only applies to aliens, both aliens and U.S. citizens may bring suit under the TVPA. See id. at sec. 2(a)(2). Because the TVPA uses the word "individual" to describe possible defendants, id. at sec. 2(a), it must be acknowledged that some courts, reasoning that the word "individual" only includes natural persons and not corporations, have determined that TVPA claims cannot be made out against corporations. See Mujica v. Occidental Petrol. Corp., 381 F. Supp. 2d 1164, 1175-76 (C.D. Cal. 2005); Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1026 (W.D. Wash. 2005); Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 382 (E.D. La. 1997). By extension, Defendants suggest that if U.S. citizens cannot sue corporations under the TVPA, it makes no sense to extend aliens the right to do so under the ATS.

Since this case involves the ATS and not the TVPA, the Court need not reach any definitive conclusions as to the meaning of the TVPA, though it bears noting that the word "individual" does not necessarily comprehend only natural persons; it may also comprehend an "individual" corporate entity. See Clinton v. City of New York, 524 U.S. 417, 428 (1998) (holding that word "individual" as used in statute includes a corporation and stating that "[t]here is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons," such that "[a]cceptance of the Government's new-found reading of [the statute] would produce an absurd and unjust result which Congress could not have intended.") (quotation marks omitted). Indeed, some courts have specifically interpreted the TVPA to allow for suits against corporations. See Romero, 552 F.3d at 1315 ("Under the law of this Circuit, the [TVPA] allows suits against corporate defendants.").

But even if this Court were to agree that the TVPA only applies to natural persons, that would not affect whether the ATS should apply to corporations. Whatever the case may be as to the TVPA, there is broad judicial agreement that the ATS provides for corporate liability. Indeed, the Mujica and Beanal cases, cited by Defendants for the proposition that the TVPA does not apply to corporations, expressly chose not to extend that rationale to ATS claims. Mujica, 381 F. Supp. 2d at 1178 n. 13 (allowing ATS claims to proceed against a corporation notwithstanding dismissal of TVPA claims and stating that "[t]he Court does not believe that the TVPA precludes claims of torture and extrajudicial killing under the ATS"); Beanal, 969 F. Supp. at 376, 380-81 (declining to extend its TVPA determination to ATS claims and holding that under the ATS "a corporation found to be a state actor can be held responsible for human rights abuses which violate international customary law").

Finally, as to whether it makes sense to allow aliens to sue corporations under the ATS but not allow U.S. citizens to sue corporations under the TVPA, assuming the TVPA bars suits against corporations, that would hardly be the only difference between the ATS and the TVPA.

Under the ATS, aliens may sue for any violation of the law of nations, whereas U.S. citizens are limited to only two under the TVPA: torture and summary execution. Suits under the TVPA also contain procedural limitations, such as an exhaustion of remedies requirement, which are not part of the ATS. 28 U.S.C. § 1350, statutory note, sec. 2(b); Sosa, 542 U.S. at 733 n. 21 (electing not to require exhaustion of remedies for ATS suits). Congress, in writing the TVPA, could have chosen to broaden the ATS and give U.S. citizens the right to sue for violations of the laws of nations to the same extent as aliens. That it did not do so, and instead created a more limited cause of action in the TVPA, is not grounds for contracting the scope of the ATS.

D. Whether Cruel, Inhuman, and Degrading Treatment Is a Recognized Violation of the Law of Nations Under the ATS (Counts 4-6)

Defendants assert that Plaintiffs' ATS claims based on cruel, inhuman, and degrading treatment must be dismissed since CIDT is not a recognized violation of the law of nations. While a few judicial decisions support Defendants' position, viewing international law and judicial authority through the lens of Sosa tends to support a contrary view — that CIDT is among the violations of the law of nations actionable under the ATS.

Many of the same international agreements and conventions which ban and condemn torture also outlaw CIDT. See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 16, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 113, 116 ("Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1."); African Charter on Human and Peoples' Rights, art. 5, June 27, 1981, 21 I.L.M. 58 (1982) ("All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited."); American Convention on Human Rights, art. 5, cl. 2, 1144 U.N.T.S. 123 (entered into force July 18, 1978) ("No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment."); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, G.A. Res. 3452, U.N. Doc. A/10034 (Dec. 9, 1975) ("No State may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment."); European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3, Council of Europe, Europ. T.S. No. 5, 213 U.N.T.S. 211 (1968) ("No one shall be subjected to torture or to inhuman or degrading treatment or punishment."); International Covenant on Civil and Political Rights, art. 7, Dec. 19, 1966, 999 U.N.T.S. 171 ("No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment."); Universal Declaration of Human Rights, art. 5, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) ("[N]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."). The Restatement (Third) of Foreign Relations Law of the United States also posits that a state violates international law when it engages in "torture or other cruel, inhuman, or degrading treatment or punishment." Id. at § 702.

Laws of the United State dealing with foreign relations also suggest that CIDT is a violation of international law. See 7 U.S.C. § 1733(j)(1)(A) (the United States will not engage in certain agricultural agreements with "any country determined by the President to engage in a consistent pattern of gross violations of internationally recognized human rights, including — . . . the torture or cruel, inhuman, or degrading treatment or punishment of individuals"); 22 U.S.C. § 2151n(a) (prohibiting provision of developmental assistance "to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment"); 22 U.S.C. § 2304

(stating in statutory definition section that "the term `gross violations of internationally recognized human rights' includes torture or cruel, inhuman, or degrading treatment or punishment").

Judicial precedent further supports recognizing CIDT as a viable claim under the ATS. See, e.g., Sarei v. Rio Tinto PLC, 650 F. Supp. 2d 1004, 1028-30 (C.D. Cal, 2009) (reconsidering an earlier decision which had found CIDT did not violate the law of nations and holding CIDT actionable under the law of nations, but that the specific factual allegations in that case did not show a violation), reconsidering 221 F. Supp. 2d 1116, 1162-63 n. 190 (C.D. Cal. 2002); Bowoto v. Chevron Corp., 557 F. Supp. 2d 1080, 1092-95 (N.D. Cal. 2008) (reviewing international agreements, treatises, and judicial decisions and determining that "[t]he prohibition of cruel, inhuman and degrading treatment has been widely recognized in numerous sources of international law"); Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988, 1023 (S.D. Ind. 2007) (holding that there is a "general international norm against cruel, inhuman and degrading treatment," though plaintiffs claims do not constitute a recognized violation of that norm); Mujica v. Occidental Petroleum Corp, 381 F. Supp. 2d 1164, 1181 (C.D. Cal. 2005) (considering decisions by foreign and domestic courts and holding "that there is a customary international law norm against cruel, inhuman, and degrading treatment," but that plaintiff's allegations do not rise to the level of a violation); Doe v. Qi, 349 F. Supp. 2d 1258, 1320-25 (N.D. Cal. 2004) (considering "court decisions, the work of jurists and the usage of nations" and holding "that conduct sufficiently egregious may be found to constitute cruel, inhuman or degrading treatment under the [ATS]"); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 437 (S.D.N.Y. 2002) ("[T]he infliction of cruel, inhuman or degrading treatment . . . is universally condemned and renounced as offending internationally recognized norms of civilized conduct."); Jama v. United States Immigration and Naturalization Serv., 22 F. Supp. 2d 353, 363 (D.N.J. 1998) (analyzing sources of international law and finding that "[t]he mental and physical abuses which are alleged to have been inflicted upon plaintiffs violate the international human rights norm of the right to be free from cruel, unhuman and degrading treatment"); Xuncax v. Gramajo, 886 F. Supp. 162, 186 (D. Mass. 1995) (noting how "the major international agreements on human rights generally treat the norm proscribing cruel, inhuman, or degrading treatment in parity with the prohibition against official torture").

Defendants cite two cases in support of their argument that CIDT does not violate the law of nations. In Aldana v. Del Monte Fresh Produce, N.A., the Eleventh Circuit's entire discussion of CIDT consisted of the following:

Based largely on our reading of Sosa, we agree with the district court's dismissal of Plaintiffs' non-torture claims under the Alien Tort Act. We see no basis in law to recognize Plaintiffs' claim for cruel, inhuman, degrading treatment or punishment. In reaching this conclusion, we acknowledge that two district courts of this Circuit recognized such a cause of action. See Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1347 (N.D. Ga. 2002) (Bosnian war crimes); Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1361 (S.D. Fla. 2001) (political assassination) aff'd on different grounds by 402 F.3d 1148, 1161 (11th Cir. 2005). But both of those courts relied on the International Covenant on Civil and Political Rights, Mehinovic, 198 F. Supp. 2d at 1347, Cabello, 157 F. Supp. 2d at 1361. Sosa explains that the International Covenant did not "create obligations enforceable in the federal courts." 124 S.Ct. at 2767. Accordingly, we affirm the district court's decision on the cruel, inhuman, degrading treatment or punishment claims.

416 F.3d 1242, 1247 (11th Cir. 2005) (footnote added). Because Aldana does not undertake analysis of international law in the manner which Sosa requires, this Court finds it unpersuasive. The majority in Aldana did not survey the sources of international law in evaluating CIDT. Moreover, it appears to have misapplied Sosa's comments regarding the International Covenant on Civil and Political Rights ("ICCPR"). In Sosa, the Supreme Court analyzed provisions of the ICCPR in order to determine whether the "prohibition of arbitrary arrest has attained the status of binding customary international law," since the ICCPR "did not itself create obligations enforceable in the federal courts." Sosa, 542 U.S. at 735. As Sosa explained, and as Judge Barkett recognized in her dissent in Aldana, there is no one source from which a court determines the law of nations. Sosa, 542 U.S. at 734; Aldana, 452 F.3d at 1285. Unlike the U.S. Code, international law is not codified in a single place. It is found by evaluating whether there is a consensus among the "customs and usages of civilized nations," as shown in such sources as international agreements and treaties, scholarly works, domestic statutes dealing with international issues, and judicial opinions. Sosa, 542 U.S. at 734. In Sosa, the ICCPR in and of itself may not have sufficed to show that plaintiff's claim of arbitrary detention was a violation of the law of nations, given that other sources of international law were not found to support a similar consensus on claims of arbitrary detention. Id. at 734-35. But this did not and does not mean that courts should never look to the ICCPR for guidance in evaluating the law of nations. Rather, the ICCRP must be viewed in conjunction with other sources of international law as part of a larger survey. And in the present case, when the ICCPR is considered alongside the many other sources of international law that address CIDT, in the Court's view a fair consensus emerges that CIDT is indeed a violation of the law of nations. See also Bowoto, 557 F. Supp. 2d at 1093 (declining for similar reasons to follow Aldana in determining whether CIDT violates the law of nations).

In marked contrast, Judge Barkett, dissenting from a decision by the Eleventh Circuit not to rehear Aldana en banc, presented a scholarly analysis of the treatment of CIDT in international law. 452 F.3d 1284 (11th Cir. 2006). After considering numerous declarations, conventions, treaties, statutes, and foreign and domestic judicial decisions on the issue, she concluded that "[w]hen one looks to the sources of international law identified in Sosa — treaties, judicial decisions, the practice of governments, and the opinions of international law scholars — it is clear that there exists a universal, definable, and obligatory prohibition against cruel, inhuman, or degrading treatment or punishment, which is therefore actionable under the [ATS]." Id. at 1285.

The second case cited by Defendants, Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) ( Forti I), affirmed in part and modified in part on other grounds on reconsideration, 694 F. Supp. 707 (N.D. Cal 1988) (Forti II), also considered whether CIDT was sufficiently well defined under the law of nations to form the basis of an ATS claim. In Forti II, the court accepted that many sources of international law in fact recognize CIDT as a violation. 694 F. Supp. at 711-12. But it held that, "[w]hile these and other materials establish a recognized proscription of `cruel, inhuman or degrading treatment,' they offer no guidance as to what constitutes such treatment." Id. at 712. Since the boundaries of what was and was not CIDT were not defined clearly enough at the time, at least in that district judge's opinion, the court held that CIDT was not actionable under the ATS. Id.

Assuming Forti II may have been correct in stating that the exact bounds of what constitutes CIDT were not perfectly defined in 1988, this Court does not find that to be grounds for rejecting the cause of action in 2010. Indeed, with the exception of Aldana, "nearly every case addressing the question subsequent to Forti has held that conduct sufficiently egregious may be found to constitute cruel, inhuman or degrading treatment." Qi, 349 F. Supp. 2d at 1322. "Despite the absence of a distinct definition for what constitutes cruel, inhuman or degrading treatment, various authorities and international instruments make clear that this prohibition is conceptually linked to torture by shades of misconduct discernible as a continuum." Tachiona, 234 F. Supp. 2d at 437. "The gradations of the latter are marked only by the degrees of mistreatment the victim suffers, by the level of malice the offender exhibits and by evidence of any aggravating or mitigating considerations that may inform a reasonable application of a distinction." Id.; Restatement (Third) of Foreign Relations Law of the United States § 702, reporters' note 5 ("The difference between torture and cruel, inhuman, or degrading treatment or punishment `derives principally from a difference in the intensity of the suffering inflicted.'") (quoting Ireland v. United Kingdom, 25 Pub. Eur. Ct. Hum. Rts., ser. A. para. 167 (1978)).

Accordingly, "cruel, inhuman and degrading treatment claims may be brought under [the] ATS if the specific conduct alleged by the plaintiffs has been universally condemned as cruel, inhuman, or degrading." Bowoto, 557 F. Supp. 2d at 1094; Roe I, 492 F. Supp. 2d at 1023 (applying the approach of "focusing on the particular conduct in question to decide whether the customary international norm against cruel, inhuman, and degrading treatment is sufficiently specific, universal and obligatory as applied to that conduct."). Instead of trying to draw boundaries that address all hypothetical factual situations, "the Court must consider whether the conduct alleged in this case has been universally condemned as cruel, inhuman, or degrading." Bowoto, 557 F. Supp. 2d at 1094 (quotation marks omitted).

It is not necessary that every aspect of what might comprise a standard such as "cruel, inhuman or degrading treatment" be fully defined and universally agreed upon before a given action meriting the label is clearly proscribed under international law, any more than it is necessary to define all acts that may constitute "torture" or "arbitrary detention" in order to recognize certain conduct as actionable misconduct under that rubric.

Xuncax, 886 F. Supp. at 187.

That it may present difficulties to pinpoint precisely where on the spectrum of atrocities the shades of cruel, inhuman, or degrading treatment bleed into torture should not detract from what really goes to the essence of any uncertainty: that, distinctly classified or not, the infliction of cruel, inhuman or degrading treatment . . . is universally condemned and renounced as offending internationally recognized norms of civilized conduct.

Tachiona, 234 F. Supp. 2d at 437.

This Court believes Sosa supports this method of analyzing potential violations of the law of nations since Sosa used the same approach to determine whether the plaintiff in that case could proceed on a claim of arbitrary detention. The Supreme Court in Sosa did not try to set a hard and fast rule that delineated the inner and outer limits applicable in every case of arbitrary detention. See 542 U.S. at 735-38. Instead, it noted that "it is useful to examine [plaintiff]'s complaint in greater detail" and ruled that, based on the specific facts alleged, "[i]t is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy." Id. at 735, 738. "Any credible invocation of a principle against arbitrary detention that the civilized world accepts as binding customary international law requires a factual basis beyond relatively brief detention in excess of positive authority." Id. at 737. Indeed, post — Sosa cases considering arbitrary detention have adopted this approach of looking to the universal condemnation vel non of the specific conduct at issue instead of simply interpreting Sosa to mean that the standard for arbitrary detention is not yet fully and completely defined and therefore arbitrary detention does not exist as a violation of the law of nations. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 466 (S.D.N.Y. 2006).

The Court finds that Plaintiffs have set forth facts sufficient to constitute CIDT. A sampling of the mistreatment alleged in the Complaint reflects such acts as beatings, electric shocks, threats of death and rape, mock executions, and hanging from the hands and feet. These acts may justify a finding of torture; they may also justify a claim which falls into the broader category of wrongful behavior classified as cruel, inhuman, and degrading treatment (Counts 4-6).

VII. Choice of Law

Defendants assert that Iraqi law applies to Plaintiffs' state law claims (Counts 10-20) and that under Iraqi law, some if not all of those claims must be dismissed. Plaintiffs contend that Iraqi law does not apply, and that the case is governed by either general federal common law, the law of a yet-to-be-determined State of the United States which can be ascertained through discovery, or the law of Maryland.

A. Whether General Federal Common Law Applies

Plaintiffs argue that their Counts 10-20 are in fact not state law claims at all, but arise instead under federal common law. The Court rejects this argument. The traditional general principle, of course, is that "[t]here is no federal general common law." Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). True, time has witnessed exceptions to this proposition, but while some limited areas exist in which courts have applied federal common law, see Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981), the Court is not aware that such exceptions have been extended to include the type of tort claims made here. The two cases Plaintiffs cite, In re Peanut Crop Insurance Litigation, 524 F.3d 458, 470 (4th Cir. 2008), and Long Island Savings Bank, FSB v. United States, 503 F.3d 1234, 1245 (Fed. Cir. 2007), do not dictate a contrary conclusion. Both cases deal with the rule that contracts entered into by the United States are controlled by federal common law, absent legislation indicating that another body of law applies. These cases, however, say nothing about torts involving private parties and in no way suggest that the fundamental rule of Erie is displaced in the context of torts of the type pled here. Plaintiffs also cite a number of federal statutes which prohibit torture, claiming that these statutes give them a right to bring their tort claims under federal law. None of these statutes, however, creates an express private cause of action, and the Court declines to derive implied private causes of action from these statutes. See Alexander v. Sandoval, 532 U.S. 275, 286-287 (2001).

B. Application of Maryland Choice of Law Principles

Since Counts 10-20 are not governed by federal law, the Court is required to engage in a choice of law analysis to determine whose law applies. When determining whose substantive law applies to diversity claims, a district court applies the conflict of law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941). Since the Court is located in the State of Maryland, Maryland's conflict of law rules apply.

"Maryland adheres to the lex loci delicti rule in analyzing choice of law problems with respect to causes of action sounding in torts." Philip Morris Inc. v. Angeletti, 752 A.2d 200, 230 (Md. 2000); Kortobi v. Kass, 957 A.2d 1128, 1139 (Md. App. 2008); see also Lab. Corp. of Am. v. Hood, 911 A.2d 841, 845 (Md. 2006) ("Unlike most other States, which have abandoned the lex loci delicti approach espoused in §§ 378-390 of the Restatement (First) of Conflicts of Law in favor of the `significant contacts' test enunciated in §§ 6, 145, and 146 of the Restatement (Second) of Conflicts of Law, Maryland continues to adhere generally to the lex loci delicti principle in tort cases.").

" Lex loci delicti dictates that `when an accident occurs in another state substantive rights of the parties, even though they are domiciled in Maryland, are to be determined by the law of the state in which the alleged tort took place.'" Philip Morris, 752 A.2d at 230 (quoting White v. King, 223 A.2d 763, 765 (Md. 1966)). "Where the events giving rise to a tort action occur in more than one state, the court must apply `the law of the State where the injury — the last event required to constitute the tort — occurred.'" Ben-Joseph v. Mt. Airy Auto Transporters, LLC, 529 F. Supp. 2d 604, 606 (D. Md. 2008) (quoting Erie Ins. Exch. v. Heffernan, 925 A.2d 636, 649 (Md. 2007)). Maryland courts have noted that "[b]ecause Maryland is among the few states that continue to adhere to the traditional conflict of laws principle of lex loci delicti, the First Restatement of Conflict of Laws, while of merely historical interest elsewhere, continues to provide guidance for the determination of lex loci delicti questions in Maryland." Hood, 911 A.2d at 845 (citation omitted). Thus, as stated in the Restatement (First) of Conflict of Law § 377, note 1 (1934),

[W]hen a person sustains bodily harm, the place of wrong is the place where the harmful force takes effect upon the body. Such a force is first set in motion by some human being. It is quite immaterial in what state he set the force in motion. It must alone or in cooperation with other forces harm the body of another. The person harmed may thereafter go into another state and die from the injury or suffer other loss therefrom. The place where this last event happens is also immaterial. The question is only where did the force impinge upon his body.

Given these principles, looking as they do to where the alleged unlawful force impinged upon the body, the inescapable conclusion is that the alleged wrongs occurred in Iraq. It was there that Defendants supposedly tortured and otherwise mistreated Plaintiffs. Nothing in the Complaint suggests that any harm took effect on Plaintiffs' bodies anywhere outside of Iraq. Thus, even if orders to carry out the alleged abusive acts came from one of L-3's United Statesbased offices, "[i]t is quite immaterial in what state [the tortfeasor] set the force in motion." Id. If orders had come from the United States but had not been carried out and Plaintiffs had not been touched, the alleged tort would have been incomplete since there would have been no damage to Plaintiffs. Not until the abusive acts were carried out in Iraq did the last acts necessary to constitute the torts occur. Under Maryland's lex loci delicti rule, Iraq emerges as the place of the wrong.

Plaintiffs suggest that in any event their claims of negligent hiring and negligent supervision against L-3 should be treated differently. As to this, they say that at least some negligent acts of hiring and supervision on the part of L-3 may have occurred in the United States, and therefore the actionable wrong may be said to have occurred in the state where these negligent acts occurred. In the Court's opinion, however, this position misconstrues the lex loci delicti rule. The rule does not treat general negligence and negligent hiring and supervision differently.

In Ben-Joseph v. Mt. Airy Auto Transporters, LLC, a car accident victim sued a trucking company whose truck hit him. 529 F. Supp. 2d 604, 605-06 (D. Md. 2008). The trucking company was based in Maryland and the accident occurred in New Jersey. Id. In his suit against the trucking company, brought in Maryland, the plaintiff included a claim for negligent supervision of its drivers and for improper training of them. Id. at 605. In discussing choice of law issues and applying the lex loci delicti rule, the Maryland federal court concluded that, regardless of where any negligent acts of supervision and training may have occurred, New Jersey law applied to all of the negligence claims because the accident occurred in New Jersey. Id. at 607. Since the trucking company was "allegedly negligent for not properly . . . supervising its agents," said the court, "the issue of its liability is also clearly determined by New Jersey law." Id. at 607, n. 4. The court also stated that "decisions by the Court of Appeals of Maryland provide further support for applying the law of the place of injury, not the place of negligent conduct." The court did not suggest there was any reason for treating negligent supervision claims differently. Id. at 607; Baker v. Booz Allen Hamilton, Inc., No. 08-1152, 2009 WL 5125672, at *3-4 (4th Cir. Dec. 28, 2009) (unpublished per curiam decision) (applying Maryland's lex loci delicti rule) (in negligent hiring and supervision suit brought in Maryland against Virginia-based employer of American contractor working in Kyrgyzstan who raped child of another American contractor in Kyrgyzstan, district court held that Kyrgyz tort law applied; affirming district court's decision on other grounds); see also Romero v. Drummond Co., 552 F.3d 1303, 1309 (11th Cir. 2008) (applying Alabama's lex loci delicti rule) (where Colombian trade union leaders were tortured and murdered in Colombia by paramilitary group which was

allegedly hired to do so by executives of Alabama-based mining company, negligent supervision claim against mining company was governed by Colombian instead of Alabama law since harm to plaintiffs occurred in Colombia).

In the present case, even assuming that any of the allegedly negligent conduct occurred somewhere in the United States, its effects ultimately were felt in Iraq in the form of the alleged torture and mistreatment of Plaintiffs. As with the intentional torts, the negligent hiring and supervision torts would not have been complete until the injury occurred in Iraq. Therefore, under Maryland's lex loci delicti rule, Iraqi law applies to all of Plaintiffs' state law claims.

C. Whether Plaintiffs' Claims Are Barred By Coalition Provisional Authority Order Number 17

Inasmuch as Iraqi law applies to Counts 10 — 20, Defendants argue that they possess immunity under Iraqi law by reason of an Order issued by the Coalition Provisional Authority ("CPA"), the governing body established in Iraq after the invasion. The Order, they claim, immunizes them from all Iraqi law and since Iraqi law applies to the state law claims, those claims must be dismissed. Plaintiffs say that the referenced Order only prevents Defendants from facing suit in a court of Iraq; it does not make them immune from Iraqi law to the extent that they are not obliged to face suit in a U.S. court applying Iraqi law.

During the occupation, the CPA put into effect Coalition Provisional Authority Order Number 17 (June 27, 2003) (hereinafter "Order 17"). Among other things, Order 17 stated in regard to contractors that

1) Coalition contractors and their sub-contractors as well as their employees not normally resident in Iraq, shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their contracts in relation to the Coalition Forces or the CPA. Coalition contractors and sub contractors other than contractors and sub-contractors normally resident in Iraq shall not be subject to Iraqi laws or regulations with respect to licensing and registration of employees, businesses and corporations in relation to such contracts.

2) Coalition contractors and their sub-contractors as well as their employees not normally resident in Iraq, shall be immune from Iraqi Legal Process with respect to acts performed by them within their official activities pursuant to the terms and conditions of a contract between a contractor and Coalition Forces or the CPA and any sub-contract thereto.

Order 17, § 2(1), (2) (footnote added).

The CPA issued an updated and expanded version of the Order a year later. Coalition Provisional Authority Order Number 17 (Revised) (June 27, 2004) (hereinafter "Revised Order 17"). The equivalent section of Revised Order 17 provided that

2) Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts, including licensing and registering employees, businesses and corporations; provided, however, that Contractors shall comply with such applicable licensing and registration laws and regulations if engaging in business or transactions in Iraq other than Contracts. Notwithstanding any provisions in this Order, Private Security Companies and their employees operating in Iraq must comply with all CPA Orders, Regulations, Memoranda, and any implementing instructions or regulations governing the existence and activities of Private Security Companies in Iraq, including registration and licensing of weapons and firearms.

3) Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto. Nothing in this provision shall prohibit MNF Personnel from preventing acts of serious misconduct by Contractors, or otherwise temporarily detaining any Contractors who pose a risk of injury to themselves or others, pending expeditious turnover to the appropriate authorities of the Sending State. In all such circumstances, the appropriate senior representative of the Contractor's Sending State in Iraq shall be notified.

Revised Order 17, § 4(2), (3).

A review of both the original and revised Orders indicates that whether the contractors possess immunity from liability for wrongful conduct turns on the "terms and conditions" of their contract. As the Court has noted in Part VI.A of this Opinion in discussing derivative sovereign immunity, however, Defendants' contracts are not presently before it. Without these documents, the Court is unable to determine the extent to which one or more of the claims set forth in Counts 10-20 relate to the terms and conditions of Defendants' contract in the context of these Orders. The Court is therefore constrained to defer decision on this issue until such time as it is in a position to consider the actual terms and conditions of Defendants' contracts. For the present, the Motions to Dismiss on this ground are denied.

D. Whether Aiding and Abetting and Conspiracy are Recognized Torts Under Iraqi Law and Whether Iraqi Law Allows Punitive Damages

Defendants argue that aiding and abetting and conspiracy are not cognizable causes of action under Iraqi tort law and that Plaintiffs' state law claims premised on these theories (Counts 11, 12, 14, 15, 16, 17) must therefore be dismissed. Defendants also assert that punitive damages are not allowed as a remedy under Iraqi law and that accordingly Plaintiffs' request for punitive damages in connection with their state law claims must be stricken. Plaintiffs affirm not only that both causes of action are recognized, but that punitive damages are allowed as to all state law claims. The parties have submitted affidavits from Iraqi law experts in support of their respective positions. Here too, in the Court's opinion, any determination at this juncture would also be premature. There are genuine issues of material fact to be resolved even if they remain preliminary ones for the Court to decide. The Court will therefore defer decision with respect to the content of Iraqi law until after it addresses the effect of Order 17 on the state claims, since a finding in favor of Defendants on the Order 17 issue would result in dismissal of all of the state law claims, rendering the issue of the precise content of Iraqi law moot.

E. Whether Maryland Public Policy Requires Application of Maryland Law

If all or some of their claims are dismissible based on Order 17 or as being noncognizable under Iraqi law, Plaintiffs suggest that such a dismissal would violate the public policy of Maryland and that the Court should therefore apply Maryland law pursuant to the

public policy exception to the lex loci delicti rule. Lab Corp. of Am. v. Hood, 911 A.2d 841, 848-51 (Md. 2006). Since the Court has determined to revisit all the related underlying issues at a later stage, it will also defer consideration of whether Iraqi law violates Maryland public policy such that Maryland law should apply to the state law claims notwithstanding the rule of lex loci delicti.

VIII. Whether Plaintiffs Have Adequately Pled that There Was a Conspiracy and Aiding and Abetting

Defendants seek dismissal of the conspiracy and aiding and abetting counts (Counts 2, 3, 5, 6, 8, 9, 11, 12, 14, 15, 17, and 18) on the ground that Plaintiffs have not pled sufficient facts to make out those claims. Defendants principally rely on Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In Twombly, plaintiffs alleged an anti-trust conspiracy against regional phone companies. Id. at 550-51. Plaintiffs claimed that the phone companies had prevented startup carriers from developing in their respective regions and had also refrained from competing with one another in each others' regions. Id. The complaint did not assert that there was an actual agreement between the phone companies to engage in this anti-competitive behavior, but rather claimed that the conspiracy was demonstrated by the companies' "parallel conduct" in that they each had acted in the same manner. Id. The Supreme Court found that plaintiffs had not set forth enough evidence to show there was an agreement among and between the defendants, and therefore had not made out a claim for conspiracy. Id. at 564. The Court noted that the challenged conduct would not have been unlawful if undertaken independently by each defendant, as opposed to being part of an agreement. Id. at 553-54. The Court also recognized that each company had cited an independent reason for taking its actions and that these actions represented a continuation of historical behavior, as opposed to a change in behavior. Id. at 566-569. Absent more facts, said the Court, while the parallel conduct pled in the Twombly complaint may have sufficed to make a "conceivable" claim of conspiracy, it did not suffice to make out a "plausible" claim which could survive a motion to dismiss. Id. at 570.

Defendants in the present case assert that, in similar fashion, all that the facts in the Complaint demonstrate is parallel conduct with regard to the alleged acts of torture; they do not provide sufficient information to show there was any agreement to torture, as a claim of conspiracy requires. Further, Defendants submit that the few statements in the Complaint asserting the existence of a conspiracy are merely legal conclusions, not statements of fact.

When determining whether an agreement exists to commit an unlawful act, courts consider a wide range of evidence. "[C]onspiracies are by their very nature secretive operations, and may have to be proven by circumstantial, rather than direct, evidence." Manbeck v. Micka, 640 F. Supp. 2d 351, 379 (S.D.N.Y. 2009) (quoting Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)); Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009) (noting "that direct evidence of a conspiracy is rarely available and that the existence of a conspiracy must usually be inferred from the circumstances"). Likewise, a conspiracy "need not be shown by proof of an explicit agreement;" it is sufficient that the "parties have a tacit understanding to carry out the prohibited conduct." Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 792 (2d Cir. 2007); Daily v. Gusto Records, Inc., 14 Fed. Appx. 579, 587 (6th Cir. 2001) ("The agreement need not be formal, the understanding may be a tacit one, and it is not essential that each conspirator have knowledge of the details of the conspiracy.") (citation omitted).

The Court finds that Plaintiffs have set forth sufficient facts to make out claims of conspiracy and aiding and abetting.

Looking first to the allegations against L-3, Plaintiffs state that L-3 employees committed many of the acts of torture described in the Complaint. Pls.' Second Am. Compl. ¶¶ 413, 424, 426, 427. Plaintiffs also allege that these L-3 employees "repeatedly bragged" about their mistreatment of detainees to L-3 management. Id. at ¶ 428. Plaintiffs claim further that L-3 had the authority to stop the wrongful acts of its employees but, despite knowing what they were doing, instead gave the employees continued permission to mistreating detainees. Id. at ¶¶ 425, 429-31, 439-41. Finally, Plaintiffs allege that L-3 took various steps to cover-up the alleged abuses, including: not reporting the conduct to the appropriate authorities, id. at ¶¶ 432-33, discouraging its employees from reporting prisoner abuse, id. at ¶ 434, destroying evidence, id. at ¶ 445(a), hiding prisoners from the Red Cross, id. at ¶ 445(c), and misleading the authorities about what was happening at the military prisons. Id. at ¶ 445(d). The Court concludes that from these facts, it is possible to infer more than merely parallel conduct. In other words, conspiratorial conduct may be inferred. Considering the facts pled in the light most favorable to Plaintiffs, L-3 is said to have given permission to its employees to torture and mistreat detainees, the employees and others working with them are claimed to have carried out the various alleged bad acts, and L-3 is claimed to have covered up the abuses allowing the mistreatment to continue. Whereas the phone companies in Twombly were alleged only to have acted in their respective regions to carry out their anti-competitive acts without aid from each other, Defendants here are said to have interacted with one another on a continuous basis, knowing and approving of their complementary roles in bringing an overall scheme to fruition. In short, Defendants are fairly identified as co-conspirators or aiders and abettors.

As discussed infra, some of these others are said to have included members of the military and employees of CACI. The participation of third-parties other than L-3 and L-3 employees makes the doctrine of intracorporate conspiracy immunity inapplicable. See Robinson v. Canterbury Village, Inc., 848 F.2d 424, 431 (3d Cir. 1988) (conspiracy between corporation and its employees can be maintained "if independent third parties are alleged to have joined the conspiracy").

As for Defendant Nakhla, Plaintiffs have also set forth factual information to show he was part of a conspiracy. Nakhla himself is said to have committed some of the alleged acts of torture while being physically assisted by other people. Id. at ¶ 16 (stating that "Nakhla held Mr. Al-Quraishi down while a co-conspirator poured feces on him"); id. at ¶ 19 (describing Nakhla and others piling naked prisoners, including plaintiff Al-Quraishi, on top of each other); id. at ¶ 20 (plaintiff saw "Nakhla forcibly holding down a fourteen-year old boy as his co-conspirator raped the boy by placing a toothbrush in his anus"). That Nakhla purportedly committed these acts with the assistance of others travels well beyond an allegation of parallel conduct. Collaborating with other individuals at the same place and time to commit or facilitate specific abusive acts unquestionably suggests an agreement between the individuals to do so and is thus sufficient for a trier of fact to infer that Nakhla was part of a conspiracy directed against the detainees. Further, since Nakhla is one of the L-3 employees alleged to have physically carried out the acts of torture, he is encompassed in the facts just discussed which suggest that L-3 employees were part of the conspiracy.

The Court notes that while the allegation in paragraph 20 of the Complaint describes an act committed against a third-party and not a plaintiff, the fact that Nakhla committed the act while being assisted by another person fairly suggests that he may have been working in concert with other people in allegedly abusing the detainees in this case.

Nakhla has moved for dismissal of all claims against him by the 71 plaintiffs other than Al-Quraishi since only Al-Quraishi specifically identifies Nakhla as one of the individuals who tortured him. Since plaintiffs have, however, made out a claim of conspiracy against Nakhla and L-3, they are able to maintain claims against him even if he did not personally take part in torturing them. Proctor v. Metropolitan Money Store Corp., 645 F. Supp. 2d 464, 483 (D. Md. 2009) ("[A] defendant who agrees to do something illegal and opts into or participates in a conspiracy is liable for the acts of his co-conspirators even if the defendant did not agree to do or conspire with respect to a particular act."); Attorney General of Maryland v. Dickson, 717 F. Supp. 1090, 1095 (D. Md. 1989) ("It is well established that members of a conspiracy are jointly and severally liable for the actions committed by their co-conspirators during the course of and in furtherance of the conspiracy").

Defendants take particular exception to certain conclusory statements in the Complaint that a "conspiracy" existed or that a person was a "conspirator." Concededly, such statements standing alone do not pass muster for pleading purposes. Nevertheless, the Court finds it unnecessary to strike them from the Complaint. Such "legal conclusions can provide the framework of a complaint," so long as they are also "supported by factual allegations." Ashcroft v. Iqbal, 129 S.ct. 1937, 1950 (2009). Here, the Complaint lists the 72 plaintiffs one by one and describes the mistreatment and various types of abusive acts allegedly inflicted upon each. See Pls.' Second Am. Compl. ¶¶ 9-412. The Complaint then states that "[a]ll of these harms were inflicted on Plaintiffs by L-3 employees and others conspiring with them." Id. at ¶ 413. Nakhla was one of the aforementioned L-3 employees, id. at ¶ 414, and the "others" included members of the military and CACI, another military contractor. Id. at ¶¶ 419, 420. The word "conspiring" in paragraph 414, read in conjunction with the proceeding paragraphs of the Complaint, clarifies who carried out the various abusive acts listed in the body of the Complaint, viz. L-3 employees (including Nakhla), members of the military, and employees of CACI.

Considering Defendants' alleged behavior in the aggregate further suggests the presence of a conspiracy. The conduct alleged in Twombly "did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed free-market behavior." Iqbal, 129 S.ct. at 1950 (discussing Twombly). In contrast, here, because of the inherent illegality of Defendants' alleged behavior and the lack of independent motivators, it is hardly more likely that "the defendants' allegedly conspiratorial actions could equally have been prompted by lawful, independent goals which do not constitute a conspiracy." Id. at 566 (quoting Kramer v. Pollock-Krasner Foundation, 890 F. Supp. 250, 256 (S.D.N.Y. 1995)). Here, the facts pled by Plaintiffs may plausibly be read as indicating a conspiracy rather than uncoordinated independent action. That L-3 employees and other individuals working in military prisons all over Iraq might just happen to have randomly begun committing similar acts of torture against detainees while L-3 independently and simultaneously started covering up the ongoing conduct is theoretically possible. But it certainly does not

partake of the immediately apparent implausibility of the parallel conduct asserted in Twombly, which had a reasonable and lawful explanation. A plausible (not to say conclusive) inference from the allegations in the Complaint is that the widespread illicit behavior was not random but rather occurred as part of a broader plan, which is to say — a conspiracy. See Al Shimari v. CACI Premier Technology, Inc., 657 F. Supp. 2d 700, 731 (E.D. Va. 2009) (finding plaintiffs pled sufficient facts to make out a conspiracy arising out of torture by military contractors in Iraq and determining that "it is possible that the personnel at Abu Ghraib acted individually in pursuit of some perverse pleasure, but this possibility is insufficient to make Plaintiffs' conspiracy allegations less than plausible"); see also Twombly, 550 U.S. at 556, n. 4 (noting that both sides conceded that that some extreme cases of parallel conduct such as "complex and historically unprecedented changes in pricing structure made at the very same time by multiple competitors, and made for no other discernible reason would support a plausible inference of conspiracy.") (citation omitted).

IX. Conclusion

For the foregoing reasons, Defendants' Motions to Dismiss [Papers No. 54 and 55] are DENIED. To the extent that the Court has deferred finally deciding certain aspects of Defendant's Motions, they may be renewed on summary judgment following appropriate discovery.

A separate Order will issue.