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Dyncorp's Motion to Dismiss Lawsuit Against
Them for Poisonous Spraying of Ecuadorian Indians
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IN
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Venacio
Aguasanta Arias, et al. )
)
Plaintiffs, )
)
Case Number 1:01CV01908 (RWR)
v.
)
)
Judge: Richard W. Roberts
DynCorp, el al., )
)
ORAL ARGUMENT REQUESTED
Defendants. )
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DYNCORP
INTERNATIONAL'S MOTION TO DISMISS
PURSUANT
TO FRCP 12(b)(1) AND 12(b)(6) OR,
IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
Defendants
DynCorp, et al. ("DynCorp International") hereby
move this Court to dismiss
this action pursuant to FRCP 12(b), or in the alternative,
pursuant to FRCP 56. Plaintiffs'
complaint challenges foreign policy and national security
determinations of the executive and
legislative branches and seeks to impose liability on
DynCorp International for conduct expressly
authorized by Congress and specifically dictated by the
Department of State under the terms of
DynCorp International's government contract. The proper
forums for plaintiffs' complaints arc in
the Congress and before the Executive branch, and their
attempt to drag the judiciary into these
matters should be rejected.
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As
set forth more fully in the accompanying statement of
points and authorities in support
of this motion and in the sworn declaration of Assistant
Secretary of State for the Bureau of
International Narcotics and Law Enforcement Affairs Rand
Beers -- who is responsible for all
United States government policies and initiatives in support
of international counter-narcotics
efforts in the Andean region - plaintiffs' claims must
be dismissed on a number of grounds.
Eirsi, plaintiffs' claims would entangle the Court in
nonjusticiable issues regarding United States
foreign and national security policy. Second, plaintiffs'
federal law claims based on alleged
violations of international law fail because the actions
of which they complain are expressly
authorized by Congress and because plaintiffs do not identify
any actions that would constitute a
violation of international law. Third, plaintiffs'
state common law claims are preempted by the
federal government's (a) exclusive authority over foreign
policy and national security and (b)
specific approval of the safety of the herbicide used
in the drug spraying operations. Plaintiffs'
complaint should be dismissed in its entirety.
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Joc/j.
Hollihgsworth/D.C. Bar # 203273)
Katharine R. Latimer (D.C. Bar #405137)
Brie G. Lasker (D.C. Bar # 430180)
Ignacia S. Moreno (D.C. Bar # 434456)
SPRIGGS & HOLL1NGSWORTH
13501 Street, N.W.
Washington, D.C. 20005-3305
(202) 898-5800
Attorneys
for Defendants
DynCorp. el at.
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IN
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Venacio
Aguasanla Arias, ct al.
Plaintiffs,
v.
DynCorp, et al.,
Defendants.
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Case
Number: 1:01CV01908(RWR)
Judge: Richard W. Roberts
ORAL ARGUMENT REQUESTED
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DYNCORP
INTERNATIONAL'S STATEMENT OF POINTS AND AUTHORITIES
IN
SUPPORT OF MOTION TO DISMISS PURSUANT TO FRCP 12(b)(l)
AND 12(bX6)
OR,
IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
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Joe
G. Hollingsworth (D.C. Bar # 203273)
Katharine R. Latimer (D.C. Bar # 405137)
Eric G. Laskcr (D.C. Bar # 430180)
Ignacia S. Morcno (D.C. Bar # 434456)
SPRIGGS & HOLLINGSWORTH
1350 I Street, N.W.
Washington, D.C. 20005-3305
(202) 898-5800
Attorneys
for Defendants
DynCorp. et al.
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TABLE
OF AUTHORITIES.............................................................................™
DYNCORP
INTERNATIONAL'S STATEMENT OF POINTS
AND
AUTHORITIES..............................................................................1
STATEMENT
OF BACKGROUND FACTS..........................................................4
L
History of Plan Colombia and the Aerial Illicit Crop Eradication
Operations
at Issue in this Case...................................................5
II.
The Importance of the Drug Eradication Efforts to
the
War
on Drugs........................................................................7
ID.
The Importance of the Drug Eradication Efforts to the
War
Against
Terrorism...................................................................8
IV.
The Importance of the Drug Eradication Efforts to United
Stales
Foreign Policy Objectives in Colombia................................10
V.
The Importance of the Drug Eradication Efforts to the
United
States
Foreign Policy Objectives in the Entire Andean Region............
11
VI.
U.S. Government Determinations Regarding the Safety of
the
HcrbicideSpray
Used in Aerial Eradication...................................13
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ARGUMENT................................................................................................16
I.
Plaintiffs' Claims Present Questions Relating to National
Security and
Foreign
Policy That Arc Not Justiciable.......................................16
II.
Plaintiffs Fail to State a Claim Under Federal Law...................................25
A.
Congress Authorized the Aerial Eradication Operations
Plaintiffs
Allege to be in Violation of International Law...................2S
B.
Plaintiffs Fail to Allege Facts Showing Any Act of
Intentional Misconduct by DynCorp International
That Could Constitute a Violation of International
Law Under the ATCA or the TVPA..........................................28
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C.
Neither the ATCA nor the TVPA Provides a Cause
of
Action Against a Private Corporation.......................................30
m.
Plaintiffs' State Tort Law Claims Are Preempted.................................................31
A.
Plaintiffs May Not Rely on State Tort Law to Regulate
U.S.
National Security and Foreign Policy Determinations.................32
B.
The Federal Government's Determination Regarding
the Safety of the Aerial tradication Operations in
Colombia Preempts Plaintiffs' State Tort Law
Allegations to the Contrary......................................................34
CONCLUSION..............................................................................................36
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TABLE
OF AUTHORITIES
Cases
Page
Aguinda
v. Texaco, Inc., 142 F. Supp.2d 534 (S.D.N.Y. 2001)....................................................
30
Aktepev.
United States, 105 F.3d 1400(11th Cir. 1997).................................................
20,22.24
Alien-Bradley
Local No. 1111 v. Wisconsin Employment Relations Bd.,
315
U.S. 740 (1942).............................................................................................,..................
32
Alvarez-Mendez
v. Stock, 941 F.2d 956 (9thCir. 1991)...............................................................
26
Baker
v. Carr, 369 U.S. 186 (1962)..................................................................................
18,20,25
Barrera-Echavarria
v. Risen, 44 F.3d 1441 (9th Cir. 1995)........................................................
26
Beanal
v. Freeport-McMoran, Inc., 969 F. Supp. 362 (E.D.
La. 1997),
affd
on other grounds, 197 F.3d 161 (5th Cir. 1999).............................................................
31
Beanal
v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir.
1999)......................................... 25,28
Boyle
v. United Technologies Corp., 487 U.S. 500 (1988)....................................................
32,33
Breardv.
Greene, 523 U.S. 371 (1998)........................................................................................
26
Brown
v. Nationsbank Corp., 188 F.3d 579 (5th Cir.
1999).........................................................
33
Burger-Fischer
v. DeGussa AC, 65 F. Supp.2d 248 (D.N.J. 1999).............................................
23
Cabin
v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 19%)............................................
25,26
Chicago
& S. Air Lines, Inc. v. Waterman S.S. Corp.,
333
U.S. 103 (1948)....................................................................................................
17,22,23
Cipollone
v. Liggett Group. Inc., 505 U.S. 504 (1992)................................................................
33
Committee
of United States Citizens Living in Nicaragua v. Reagan,
859
F.2d 929 (D.C. Cir. 1988)................................................................................................
26
Crosby
v. Nat'1 Foreign Trade Council, 530 U.S. 363 (2000)................................................
17,23
Department
of the Navy v. Egan, 484 U.S. 518 (1988)................................................................
16
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Doc
v. Islamic Salvation Front, 993 F. Supp. 3 (D.D.C.
1998)....................................................
31
Uminentev.
Johnson. 361 F.2d 73 (D.C. Cir. 1966).....................................................................
20
G«er
v. American Honda Motor Co., Inc., 529 U.S. 861
(2000).................................................
35
Gtfigan
v. Morion, 413 U.S. 1 (1973)......................................................................................
...22
Haig
v. /igee. 453 U.S. 280(1981)...............................................................................................
16
WOTCT
v. Davidowiti, 312 L'.S. 52 (1941) .....................................................................................32
In
re Nazi Era cases Against German Defendants Lilig.,
129
F. Supp.2d 370 (D.N.J. 2001)..........................................................................................23
Induslria
Paniflcadora, S.A. v. United Stales, 763 F.
Supp. 1154
(D.D.C.
1991), affd on other grounds. 957 F.2d 886 (D.C.
Cir. 1992)................................. 20
Fwnowa
v. Ford Motor Co., 67 F. Supp.2d 424 (D.N.J. 1999)...................................................
23
Joo
Y. Japan, 172 F. Supp.2d 52 (D.D.C. 2001)...........................................................................
23
Ka<ficv.Karadzic,70F.3d232(2dCu.
1995).......................................................................
30,31
Koohi
v. United States. 976 F.2d 1328 (9th Cir. 1992)................................................................
34
Made
in the USA Foundation v. United States, 242 F.3d 1300
(11th
Cir. 2001).......................................................................................................................
17
Mangold
v. Analytic Servs.. Inc., 77 F.3d 1442 (4th Cir. 1996)...................................................
34
Notional
Foreign Trade Council v. Natsios, 181 F.3d38
(1st
Cir. 1999), affd sub nom..Crosby v. National Foreign
Trade Council,
530
U.S. 363(2003)................................................................................................................
32
Nejad
v. United States, 724 F. Supp. 753 (C.D. Cal.
1989)..........................................................
22
Oftjenv.
CCTfra/L«jr/ierCo.,246U.S.297(1918)....................................................................
17
People's
Mo/ahedin Organization of Iran v. United States
Department of State,
182
F.3d 17 (D.C. Cir. 1999)..................................................................................................
17
Ramirez
v. Weinkerger, 745 F.2d 15CO (D.C. Cir. 1984),
vacated
and remanded, 471 U.S. 1113 (1985), case dismissed,
788
F.2d 762 (D.C. Cir. 1986)................................................................................................
20
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Rostkerv.
Goldberg,4S3\}.S. 57(1981).....................................................................................
17
Sillwoodv.
Kerr-McGee Corp., 464 U.S. 238 (1984)..................................................................
34
Tel-Oren
v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984)............................................
30
Thamaaon
v. Perry, 80 F.3d 915 (4th Cir. 1996)........................................................................
17
Tiffany
v. United Stales, 931 F.2d 271 (4th Cir. 1991), cert,
denied,
502
U.S. 1030 (1992)........................................................................................................
17.22
United
States v. Pinto-Mejia, 720 F.2d 248 (2d Cir. 1983)..........................................................
26
Zuckerbraun
v. General Dynamics, 755 F. Supp. 1134 (D.
Conn. 1990).
affdon
other grounds, 935 F.2d 544 (2d Cir. 1991)..............................................................
24
Legislative
Authority
Alien
Tort Claims Act, 28 U.S.C.A. § 1350 (2000).....................................................25
Foreign
Assistance Act of 1961, as amended by International
Narcotics
Control Act of 1992, 22 U.S.C.A. § 2291 (Supp. 2001)..................................
26.27
22
U.S.C.A. § 2291(a)(lXA)............................................
2.4
22
U.S.C.A. § 2291(dX4).....................................................
35
22
U.S.C.A. §§ 2291(dXO & (2)........................................
13
22
U.S.C.A. § 2291(dX3)..............................................
13,27
22
U.S.C.A. § 2291(dX4)....................................................
13
Foreign
Relations Authorization Act, § 140(dX2), 22 U.S.C.
§ 26S6f(dX2) 1989)...................8
Immigration
and Nationality Act, § 212(aX3XB), 8 U.S.C.A. §1182(aX3XBX2001)................8
8
U.S.C.A § 1189 (1999), amended by
Pub.
L. No. 107-56 (2001)...................................................8
Torture
Victim Protection Act of 1991,28 U.S.C.A. § 1350
(2000)............................................ 25
H.R.
Conf. Rep. No. 102-367 (1991), reprinted in 1992
U.S.S.C.A.N. 84.................................. 31
H.R.
Conf. Rep. No. 106-710 (2000)......................................................................................
13, 35
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H.R.
Conf. Rep. No. 107-345 (2001)............................................................................................
15
147
Cong. Rec. SI0940-42 (daily ed. Oct. 24,2001)...................................................................
15
Othtr
Authority
President
Clinton's Memorandum of Justification in Connection
with Waivers under section 3201(aX4) of the Emergency
Supplemental Act, 2000, as enacted in the Military Construction
Appropriations Act, 2001 (2000)......................................................................................
2,4,7
Convention
Against Torture and Other Cruel, Inhuman or Degrading
Treatment
or
Punishment (Article I)........................................................................................................
29
United
Nations Convention Against Illicit Traffic in Narcotics
Drugs and
Psychotropic
Substances of 1988............................................................................................
27
Lawrence
H. Tribe, American Constitutional Law § 4-5
at 656 (3d ed. 2000)............................ 32
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IN
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Venacio
Aguasanta Arias, et al. )
)
Plaintiffs, )
)
Case Number: 1:01CV01908 (RWR)
v. )
)
Judge: Richard W. Roberts
DynCorp International, LLC, et al., )
)
ORAL ARGUMENT REQUESTED
Defendants. )
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DYNCORP
INTERNATIONAL'S STATEMENT OF POINTS AND AUTHORITIES
IN
SUPPORT OF MOTION TO DISMISS PURSUANT TO FRCP 12(bXl)
AND 12(bX6)
OR,
IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
Defendants
DynCorp International, LLC, et al. ("DynCorp International")
hereby move
this Court to dismiss this action pursuant to FRCP 12(b),
or in the alternative, pursuant to FRCP
56. Plaintiffs' complaint challenges foreign policy and
national security determinations of the
executive and legislative branches and seeks to impose
liability on DynCorp International for
conduct expressly authorized by Congress and specifically
dictated by the Department of State
under the terms of DynCorp International's government
contract. The proper forums for
plaintiffs' complaints are in the Congress and before
the Executive branch, and their attempt to
drag the judiciary into these matters should be rejected.
Through
this action, plaintiffs, a putative class of Ecuadorans
living near the Colombian
border, ask this Court to block the continued implementation
of U.S. support for Plan Colombia,
a multi-year, multi-billion dollar initiative that began
over a year ago through which the United
States, seven Andean nations, and other international
partners, including Spain and Great Britain,
seek to foster democracy and stability in Latin
America and to disrupt the flow of illegal narcotic
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drugs
out of the region. Plaintiffs allege that the aerial narcotics
eradication operations
conducted in Colombia cause adverse environmental and
health effects. Within the past few
weeks — after expressly considering such allegations -
Congress appropriated $625 million to
provide additional funding to sustain and expand support
for Plan Colombia through the Andean
Counterdrug Initiative (which is part of the broader Andean
Regional Initiative (ART)) for FY
2002.
The
matters at issue in this litigation are uniquely within
the province of the legislative
and executive branches of government. Plan Colombia and
the ARJ are the linchpin of United
States foreign policy and diplomatic relations in Colombia
and the rest of the Andean region.
See generally Foreign Assistance Act of 1961, §
481(aXlXA), as amended by the International
Narcotics Control Act of 1992, § 3,22 U.S.C.A. §
2291(aXlKA) (Supp. 2001) ("International
narcotics trafficking poses an unparalleled transnational
threat in today's world and its
suppression is among the most important foreign policy
objectives of the United States."). In
addition. Plan Colombia and the ARI arc vital to the national
security because of (1) the Andean
region's role as virtually the exclusive source of cocaine
entering the United States and (2) the
financing provided by the region's narco-trafficking to
several international terrorist
organizations. See President Clinton's Memorandum
of Justification in Connection with
Waivers under section 3201(aX4) of the Emergency Supplemental
Act, 2000, as enacted in the
Military Construction Appropriations Act, 2001 (2000)
("The challenges faced by Colombia are
a matter of national security interest to the United States"
because "(ijllcgal drugs cost our
society 52,000 lives and nearly SI 10 billion each year"
and "[t)he drug trade is also fueling the
illegal armed groups involved in Colombia's internal conflict")
(hereinafter "President Clinton's
National Security Waiver") (attached hereto as Exhibit
A).
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Having
failed in their efforts before Congress and being unwilling
to sue the United
States government directly, the Ecuadoran plaintiffs attack
United States foreign and national
security policy through a putative class action against
the U.S. State Department's contractor that
provides support for some aviation elements of U.S. support
for Plan Colombia, DynCorp
International. DynCorp International's contractual services
for the State Department involve
highly sensitive and classified information, and DynCorp
International is forbidden from
disclosing any information regarding its activities without
prior express State Department
approval. Speaking generally, the implementation of the
aerial narcotics eradication operations
in Colombia depends upon intelligence information, military
assets, and foreign policy and
national security decision-making that cannot be disclosed
without posing a grave risk to vital
U.S. foreign policy, diplomatic relations and national
security. Moreover, as plaintiffs
acknowledge in their complaint, the illicit crop spraying
flights are being conducted in one of the
most dangerous regions in the area, and spray planes and
escort helicopters have been frequently
fired upon by hostile narco-traffickers and terrorist
groups. Accordingly, any disclosure of
operational information could result directly in the loss
of American and Colombian lives.
Plaintiffs'
claims should be dismissed in their entirety for a number
of reasons. First
plaintiffs' claims would entangle the Court in nonjusticiable
issues regarding United States
foreign and national security policy. Second, plaintiffs
fail to state a claim actionable based on a
violation of international law, both because the actions
of which they complain arc expressly
authorized by Congress and because plaintiffs do not set
forth any facts that would constitute a
violation of international law. Third, plaintiffs'
state common law claims are preempted by the
federal government's (a) exclusive authority over foreign
policy and national security and (b)
specific approval of the safety of the herbicide used
in the drug spraying operations.
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STATEMENT
OF BACKGROUND FACTS
1.
The aerial drug eradication operations ai issue In this
litigation are a key element
of United States counter-narcotics policy in Colombia
and the Andean region. This policy is (he
product of a complicated balance of U.S. national security
and foreign policy objectives, has
been approved at the highest levels of government, has
received the direct attention of the
President, the Secretary of State, and the National Security
Council, among others, and has been
endorsed by Congress. See Declaration of Rand Beers,
Assistant Secretary of Stale for the
Bureau of International Narcotics and Law Enforcement
Affairs Regarding Potential Impact of
Arias Litigation on United States National Security
and Foreign Policy Interests, at TT 3-4,62
(hereinafter "Beers Dccl. at ^ _") (attached
hereto as Exhibit B).
2.
Any disruption in the aerial eradication of illicit drug
crops in Colombia will
undermine national security by depriving the United States
of a key weapon in its arsenal for
stemming the flow of illicit narcotics into this country
and hy allowing international terrorist
organizations in Colombia to continue to reap huge profits
from drug trafficking with which they
will target U.S. interests and American lives. See
tieerc Dccl. a) f5; see also President Clinton's
National Security Waiver.
3.
The aerial drug eradication operations are also a linchpin
to U.S. foreign policy
objectives to foster democratic and stable governments
in Colombia and other Andean nations
and to further important trading relationships in the
region. Further, these operations provide the
foundation for numerous bilateral and multilateral commitments
between and among the United
States, seven Andean nations, and other international
partners, including Great Britain and Spain.
Beers Decl. all 6; see also Beers Decl. at TH 7-9;
see generally 22 U.S.C.A. § 2291(a)(lKA).
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I.
History of Plan Colombia and the Aerial Illicit Crop
Eradication Operations al Issue in
this Case.
4.
The United States has been providing assistance to Colombia
since the early
1970s to help the Colombian National Police and other
law enforcement agencies, the military,
and civilian agencies in their efforts to reduce illegal
drug production and trafficking activities.
The United States and Colombia have worked together in
joint aerial eradication efforts since
1978. See Beers Dccl. at 110.
5.
Colombia and other Andean countries produce virtually
all of the world's cocaine
and have become a major supplier of heroin to the East
Coast of the United States. In recent
years, in part as a result of successful U.S.-host country
drug eradication efforts in Bolivia and
Peru, drug traffickers have moved much of their operations
to Colombia's southern department's
of Putumayo and Caqueta and have formed alliances with
illegal armed forces in the region. See
i</.,at1 11-13.
6.
In response to these developments, the Colombian government,
with United
States support, initiated a 57.5 billion program, called
Plan Colombia, to which the United States
committed over SI billion in assistance both in Colombia
and in neighboring countries affected
by the drug trade. Plan Colombia represents a dramatic
expansion in U.S.-Colombia
collaborative efforts in combarting narcotics trafficking
and is one of the most significant
Western Hemisphere foreign policy initiatives in recent
years. See id., at fl 14-15.
7.
The centerpiece of Plan Colombia is funding for the "Push
into Southern
Colombia" program, the program directly at issue
in this litigation. The Push into Southern
Colombia program is targeted at attacking the cultivation
and production of illegal narcotics in
the southern departments of Putumayo and Caqueta and its
success is crucial to progress in
counter-narcotics operations in other regions in Colombia.
See id., at fl 16-18.
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8.
The aerial eradication component of the Push into Southern
Colombia
commenced in late December 2000 and, as of February 5.2001,
over 25,000 hectares of coca
had been sprayed with glyphosale herbicide in Putumayo.
See id., at 119.
9.
During these spraying operations, eight spray planes and/or
escort helicopters
were hit by hostile ground fire in six separate incidents.
In total, during 1999 and 2000, over 100
spray planes and/or escort helicopters were hit by hostile
ground fire, resulting in three fatalities.
In recognition of these hostile conditions, the United
States is also providing military equipment,
logistical support, and training to the Colombian Army.
Seeid.,at^\ 20-21.
10.
Since 1991, the Slate Department has contracted with DynCorp
or various
subsidiaries (currently DynCorp International, LLC) for
support services for the United States'
counter-narcotics aviation programs in the Andean Region.
DynCorp International serves as the
contractor for the State Department for certain aviation
elements of Plan Colombia, and its
continued successful contractual performance is considered
vital to U.S. national security
interests and an integral part of U.S. foreign policy
objectives and diplomatic relations with
Colombia and other Andean region nations. See id.,
at Yl 24-26, 28.
11.
DynCorp International's contractual services for the State
Department involve
highly sensitive and classified information, and DynCorp
International is prohibited from
disclosing any information regarding its activities without
prior State Department approval. See
i</.,at127.
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D.
The Importance of the Drug Eradication Efforts lo the
War on Drugs
12.
It is estimated that illicit drugs reaching the United
States cost our society 52,000
lives and SI 10 billion a year. See id. at 129;
see also President Clinton's National Security
Waiver.
13.
Colombia is the world's largest producer of cocaine. From
1995 to 2000, in pan
due to spillover effects from successful counter-narcotics
efforts in Bolivia and Peru, cocaine
production in Colombia increased by almost 270 percent.
Currently, 74 percent of the world's
coca is cultivated in Colombia. In addition, the U.S.
Drug Enforcement Administration
estimates that up to 75 percent of the heroin consumed
on the East Coast of the United States
comes from Colombia. See Beers Decl. at 131.
14.
United States support for counter-narcotics actions in
Colombia is designed to
reduce illicit coca production by 20 percent (base year
1999) by the end of 2002 and 40 percent
by the end of 2007, and thus to cut the supply of drugs
into this country. See id., at U 32-33.
15.
The impact of crop eradication can be dramatic. For example,
U.S. Government
studies indicate that in Bolivia and Peru every 200 hectares
of coca taken out of production
deprives the drug trade on average of a metric ton of
refined cocaine. By this measure, the
13,853 hectares taken out of production in Bolivia and
Peru in 2000 are the equivalent of
keeping approximately 69 metric tons of cocaine from entering
the system, with a street value of
$70 billion. To put these sums in perspective, for FY
2001, the United States Government's
budget for international drug control operations was SIS.8
billion. See id., at 134.
16.
The executive and legislative branches have repeatedly
authorized aerial
eradication of illicit crops as a key element in U.S.
counter-narcotics policy, because it is the
most effective crop control alternative and allows for
the flexibility necessary to mitigate
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potential
violence in the face or likely violent opposition. See
id., at 135; see also State
Department report to Congress on human health and safety
of herbicides used in Colombia aerial
spray program, January 23, 2001, at 4 (hereinafter "2001
State Department safety report")
(attached hereto as Exhibit C).
111. The Importance of the Drug Eradication Efforts
to the War Against Terrorism
17.
The aerial narcotics eradication efforts in Colombia strike
directly at the funding
of three separate international terrorist organizations.
Thus, is United States Ambassador to
Colombia Anne Patterson recently stated, Plan Colombia
continues to be the most effective anti-
terrorist strategy the United Stales could design. See
Beers Decl. at 137.
18.
There are currently twenty-eight organizations that have
been designated by
Secretary of State Powell as "Foreign Terrorist Organizations."
Three of these Foreign Terrorist
Organizations are based in Colombia: the Revolutionary
Armed Forces of Colombia (FARC),
the National Liberation Army (ELN). and the United Self-Defense
Forces of Colombia (AUC).'
Each of these three terrorist groups is financed in large
part by the illicit narcotics industry in
Colombia and uses drug money to target U.S. interests
and American lives. See id., at fl5.38-
40.
19.
The FARC is widely considered to be the most dangerous
international terrorist
group based in this hemisphere. The FARC was established
in 1964 as the military wing of the
Colombian Communist Party and is Colombia's oldest, largest,
and most capable and best-
equipped Marxist insurgency group. See id., at
141.
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1
IB order to be designated » • Foreign Terrorist
Organization, the Secretary of Stale mutt find thu the
organization
(1) u a foreign organization; (2) engage! in terrorist
activity (u defined in lection 212(aX3)(b) of the Immigration
and Nationality Act, 8 U.S.C.A. § 1182(«X3XB))
or terrorism (as defined in Mclion 140(dX2) of the Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989
(22 U.S.C. § 2656fl.dX2». or retains the capability
and
intent to engage in terrorist activity or terrorism; and
(3) die terrorist activity or terrorism of the organization
threatens the security of United Stales nationals or the
national security of the United Stale*. Sec Immigration
and
Nationality Act, 8 U.S.C. A. { 1189 (1999). as amended
by P.L. 107-56(2001).
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20.
The FARC's terrorist activities include bombings, murder,
kidnapping, extortion,
hijacking, as well as guerilla and conventional military
action against Colombian political,
military, and economic targets. The FARC have murdered
13 Americans since 1980 and
kidnapped over a hundred more. In March 1999, the FARC
executed three U.S. Indian rights
activists on Venezuelan territory after it kidnapped them
in Colombia. In October 2000, the
Colombian police rescued a five-year-old U.S. citizen
who had been held for six months by
individuals connected with the FARC. See id., at
142.
21.
The FARC welcomed the September II, 2001, terrorist attacks
on the United
States. Afterward, Jorge Briceno, known as Mono Jojoy,
a FARC commander, was reported to
have ordered his group to "combat" the U.S.
"until we get to their own territory." Another
FARC commander, Manucl Marulanda has threatened to hit
American targets in response to U.S.
support Tor the drug war. In a recent hearing before the
Senate Foreign Relations Committee,
Secretary of State Powell grouped the FARC with al Qa'ida
and the IRA as one of the three
terrorist organizations worldwide against whom it would
not be difficult to sustain an
international alliance. See id., at fl 43-44.
22.
The ELN Marxist insurgency group was formed in 1965 and
forced Colombian
officials to the negotiating table in 1999 through a campaign
of mass kidnappings -- each
involving at least one U.S. citizen. The ELN's terrorist
activities include kidnapping, bombing,
extortion, and guerilla war. Like the FARC, the ELN often
targets foreign employees of large
corporations, especially in the petroleum industry, frequently
assaults energy infrastructure, and
has inflicted major damage on pipelines and the electric
distribution network. See id., at 145.
23.
The AUC is an umbrella organization formed in April 1997
to consolidate most
local and regional right-wing paramilitary groups. AUC
operations vary from assassinating
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suspected
insurgent supporters to engaging guerilla combat units.
The Colombian National
Police reported that the AUC conducted 804 assassinations,
203 kidnappings, and 75 massacres
with 507 victims during the first ten months of 2000.
See id., at 146.
24.
The FARC, ELM, and AUC have publicly protested the joint
U.SyColombia
aerial narcotics eradication operations and have attempted
to shoot down spray planes
conducting the aerial eradication operations. See id.,
at 147.
IV.
The I"TP7ngn/;7 of the Drug Eradication Efforts
to United States Foreign Policy
Obiccttvei ill Colombia
25.
Colombia is one of the United States' most important trading
partners in the
Americas, with $4.5 billion in direct U.S. investments
in sectors other than the petroleum sector.
Colombia is the United States' eighth largest supplier
of crude oil, with more than 330,000
barrels per day. Colombia and its neighbors Venezuela
and Ecuador -- both of which function as
drug transit routes out of Colombia - together supply
20 percent of U.S. oil imports. See id., at
149.
26.
The continued drug financing of both leftist guerillas
and right-wing paramilitary
groups in Colombia has resulted in a breakdown of the
most fundamental aspects of Colombian
society. The Colombian human rights situation is poor,
and the government has little or no
presence in large sections of the country that are de
facto controlled by drug traffickers and the
illegal armed forces and terrorist groups on their payroll.
See id., at 1 50.
27.
The influx of drug money into Colombia has significantly
weakened and, in many
instances, corrupted many of the public institutions in
Colombia, including the government, the
judiciary, the police, and the military. Human rights
activists, members of Congress, journalists,
judges, investigators, prosecutors, labor leaders and
other private citizens are all subject to
assassination, kidnapping, and threats. The continued
military unrest in Colombia has resulted in
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high
unemployment, limited investment opportunities, and as
many as a million internally
displaced persons. See id., at yl 51 -52.
28.
The prospects for democracy, peace, and stability in Colombia
are inextricably
linked to the success of Plan Colombia and the reduction
of narcotics cultivation, processing, and
trafficking in that country. Maintaining the momentum
in this program is central to U.S. foreign
policy objectives and provides the framework for continued
diplomatic relations between our
two countries. See id., at \ 53.
V.
The Importance of the Drug Eradication Efforts to United
States Foreign Policy
Objectives in the Entire Andean Region
29.
The success of United States foreign policy efforts in
Colombia and the defeat of
drug traffickers and their terrorist supporters will also
have a significant impact on the prospects
for democracy, peace, and security in the other countries
in the Andean region. It is because of
this interrelationship that United States foreign policy
is focused broadly on the Andean region
as a whole. See id., at Tl 54-55.
30.
All of Colombia's neighbors are affected to one degree
or another by the drug-
financed violence in Colombia. The FARC and ELN have crossed
international borders for
years and have periodically engaged in kidnapping, extortion,
and illegal drug and arms
trafficking in neighboring countries. The increasingly
strong AUC has also begun to operate
across international borders, raising the possibility
of armed conflict spilling over into
neighboring countries. See id., all 56.
31.
While the armed conflict in Colombia has thus far generated
relatively few
refugees in neighboring countries, the large numbers of
internally displaced persons in Colombia
demonstrate the clear potential for a significant refugee
crisis if violence in Colombia continues.
Scei</.,at157.
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32.
The threat to regional stability is acute: Venezuela,
Peru, and Ecuador all have
amassed troops on their borders with Colombia to protect
against narcotics traffickers and
terrorist groups. Panama, which has no army, has no defense
against intrusions from these
armed forces. See id., at 158.
33.
Ecuador is the most exposed neighbor in the region because
it is situated adjacent
to southern Colombian areas that are guerilla strongholds
and heavy drug producing areas.
Fighters with Colombian paramilitary organizations have
been arrested for running extortion
rings in Ecuadoran border regions. There are reports that
Colombians are buying ranches and
farms in the Ecuadoran border region, possibly for drug
cultivation, and Ecuadoran officials have
uncovered and destroyed several small cocaine processing
laboratories in the area. The FARC
also has been accused of kidnapping people in Ecuador,
although the FARC denies the
allegations. See id., at 159.
34.
In Peru, officials have expressed concern about spillover
effects of illicit drug
activities from Colombia that threaten to reverse the
remarkable successes in reducing coca
production in Peru over the past six years. Peruvian officials
have denounced Colombian
plantings of coca and poppy in Peru and international
trafficking of arms through Peru to FARC
guerillas in Colombia. Bolivian officials have likewise
expressed concerned about spillover
effects reversing the successes in counter-narcotics operations
in that country. See id, at J 60.
35.
Venezuela, Panama, and Brazil, while not major illicit
drug producing countries,
have also served as transit and transshipment points for
illicit drugs coming out of Colombia and
are directly impacted by counter-narcotics operations
in Colombia. See id., at 161.
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VI.
U.S. Government Determinations Regarding the Safety
of the Herbicide Spray Used in
Aerial Eradication
36.
Congress has directed that the President, with the assistance
of the appropriate
Federal agencies, monitor any use of a herbicide under
chapter 8 of Part I of the Foreign
Assistance Act of 1961, as amended ("FAA"),
in aerial eradication to determine the impact of
such use on the environment and on the health of individuals.
See 22 U.S.C.A. §§ 2291(d)(l) &
(2). (Congress appropriated funds in support of Plan Colombia
for necessary expenses to carry
out the activities authorized under section 481 of the
FAA, which is set forth in chapter 8 of Part
I of the FAA.)
37.
Congress has directed the President to submit an annual
international narcotics
control strategy report to Congress that includes information
on the impact on the environment
and the health of individuals of the use under chapter
8 of Part I of the FAA of herbicide for
aerial eradication. Congress has further directed the
President to report immediately to Congress
if he determines that the herbicide is causing adverse
health or environmental effects. See 22
U.S.C.A. §§ 2291(dX3) & (4).
38.
In addition, the statement of the managers in the Conference
Report to the
Emergency Supplement Act, 2000, which appropriated funds
in support of Plan Colombia,
directed the Secretary of State, in consultation with
the heads of other relevant United States
federal agencies, to report to the Committees on Appropriations
regarding the effects on human
health and the safety of herbicides used with funds appropriated
under Title III of the Act See
H.R. Conf. Rep. No. 106-710, at 172 (2000) (relevant
excerpts attached hereto as Exhibit D).
39.
Consistent with the Conference Report accompanying the
Emergency
Supplemental Act, 2000, in January 2001, the State Department
submitted a report to Congress
on the safety of the herbicide being used in the drug
spraying operations in the Colombia's
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Southern
Departments of Putumayo and Caqueta, which are at issue
in this litigation. This report
covers all of the ingredients used in the spray mixture
at the time of the spraying at issue, which
consisted of water, the herbicide glyphosate, and two
adjuvants (COSMO FLUX-41 IF and
COSMO-IN-D). See 2001 State Department safety report;
Beers Decl. at 122.
40.
The State Department's report was reviewed and approved
by the Weed Science
Laboratory of the U.S. Department of Agriculture, the
office of Pesticide Programs of the EPA,
and the Narcotics Affairs Section of the U.S. Embassy
in Bogota. See 2001 State Department
safety report, at 2; Been Decl. at 122.
41.
Based on this review, the State Department reported to
Congress that there "are
no grounds to suggest concern for human health and that
there is no synergistic interaction
between glyphosate and other materials." See 2001
State Department safety report, at 2; Beers
Decl. at 123.
42.
In particular, the State Department report stated that
(1) "[b]ased on adequate
scientific studies, glyphosate does not cause risks of
concern for birth defects, mutagcnic effects,
neurotoxic effects, reproductive problems, or cancer,"
(2) there is "no difference" between
glyphosate and baby shampoo in terms of "irritation
potential," (3) glyphosate is "unlikely to
leach through the soil to contaminate underground drinking
water," and (4) glyphosate is "not
persistent in fields" and fields treated with glyphosate
"can be replanted immediately." See 2001
State Department safety report, at 5.
43.
The State Department also reported that "switching
to 'less effective' chemicals
would risk undermining the eradication effort and increasing
coca cultivation, a move that would
inevitably cause greater harm and environmental damage
to Colombia." Id., at 4; Beers Decl. at
123.
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44.
Separately, the Narcotics Affairs Section of the United
States Embassy in Bogota
commissioned a case study of residents of a community
that had reportedly suffered adverse
health effects due to aerial eradication operations in
Colombia. The study was conducted by Dr.
Camilo Uribe, a leading lexicologist in Colombia and the
director of Clinica Uribe Cualla, the
national poison control center. After conducting a detailed
review of the circumstances and
medical records of each of the complaints reported to
a health center in Colombia from July 2000
through February 2001, Dr. Uribe concluded that any relationship
between the herbicide used in
the eradication operations and the observed health events
is unlikely. See A Study of the Health
Complaints Related to Aerial Eradication in Colombia,
dated September, 2001 (hereinafter
"2001 U.S. Embassy safety study") (attached
hereto as Exhibit E).
45.
During the recent Congressional debates regarding funding
for the Andean
Counlcrdrug Initiative, Congress specifically considered
allegations that the aerial narcotics
eradication operations in Colombia were having adverse
effects on human health and the
environment. 147 Cong. Rec. SI 0940-4 2 (daily ed. Oct.
24,2001) (statement of Sen. Wellstone)
(relevant excerpts attached hereto as Exhibit F).
46.
On December 19 and 20, 2001, the House of Representatives
and the Senate
passed the Conference Report accompanying H.R. 2506, the
Foreign Operations, Export
Financing, and Related Programs Appropriation bill for
FY 2002, which appropriates $625
million to enable the United States to sustain and expand
its support for Plan Colombia through
the Andean Counlcrdrug Initiative for FY 2002. See
H.R. Conf. Rep. No. 107-345, at 31 (2001)
(relevant excerpts attached hereto as Exhibit G).
47.
hi the Conference Report, Congress directed the Secretary
of State to report to
Congress regarding the safety of herbicide used in aerial
eradication. In particular, the
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Conference
Report conditions use of the additional appropriated funds
for procurement of
chemicals used for aerial eradication on a finding by
the Secretary of State, in consultation with
the heads of other relevant United States federal agencies,
that (a) the aerial eradication is being
carried out in accordance with United States regulatory
controls and (based also on consultation
with the Colombian government) Colombian law, and (b)
the chemicals used in the aerial
eradication do not pose unreasonable risks or adverse
effects to humans or the environment.2 See
id. at 14.
ARGUMENT
I.
Plaintiffs' Claims Present Questions Relating to National
Security and Foreign Policy
That Are Not Justiciable.
Plaintiffs'
federal and common law claims are nonjusticiable for two
independently-
dispositive reasons. As the United States Supreme Court
has repeatedly made clear *[m]atters
intimately related to foreign policy and national security
are rarely proper subjects for judicial
intervention." Haig v. Agee, 453 U.S.
280,292 (1981). Plaintiffs' claims are "intimately
related" to both. First, plaintiffs' claims
would undermine U.S. national security by interfering
with U.S. policies to stem the flow of illegal narcotics
trafficking and to combat international
terrorism. Second, plaintiffs' claims necessarily
implicate and intrude upon U.S. foreign policy
and diplomatic relations in the Andean region.
The
United States Supreme Court has stated that, "unless
Congress specifically has
provided otherwise, courts have traditionally been reluctant
to intrude upon the authority of the
Executive in military and national security affairs."
Department of the Navy v. Egan, 484 U.S.
518,530 (1988) (citing cases). "Of the legion of
governmental endeavors, perhaps the most
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*
ID addition, funds may not be obligated or expended for
use in aerial eradkation unless the Secretary of State
determines and certifies to Congress that procedures are
available to evaluate claims of local citizens regarding
alleged health problems or damage to licit agricultural
crops from the aerial eradication and to provide fair
compensation for meritorious claims. Sctid.. at
14-15.
16
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clearly
marked for judicial deference arc provisions for national
security and defense." Tiffany v.
United States, 931 F.2d 271,279 (4th Cir. 1991). cert,
denied, 502 U.S. 1030 (1992) (citing
Rostker v. Coldberg, 453 U.S. 57,64-67 (1981)).
Decisions relating to national security are "of
a kind for which the Judiciary has neither aptitude, facilities
nor responsibility and have long
been held to belong in the domain of political power not
subject to judicial intrusion or inquiry."
People's Mojahedin Organization of Iran v. United Stales
Department of State, 182 F.3d 17,23
(D.C. Cir. 1999). "To the degree that the judiciary
is permitted to circumscribe the national
security options of our elected officials, it decreases
the ability of the political branches to
impose their will on another nation and at worst, it permits
the imposition of the will of another
nation on the United States." Thamasson v. Perry,
80 F.3d 915,925 (4th Cir. 1996).
Likewise,
it is well established that "[t]he conduct of the
foreign relations of our
government is committed by the Constitution to
the executive and legislative - 'the political' —
departments of the government, and the propriety of what
may be done in the exercise of this
political power is not subject to judicial inquiry or
decision." Oeljen v. Central Leather Co., 246
U.S. 297. 302 (1918).' The Supreme Court has cautioned
that decisions relating to foreign
policy "are delicate, complex, and involve large
elements of prophesy. They are and should be
taken only by those directly responsible to the people
whose welfare they advance or imperil.
They are decisions of a kind for which the Judiciary has
neither aptitude, facilities nor
responsibility." Chicago & S. Air Lines. Inc.
v. Waterman S.S. Corp., 333 U.S. 103,111 (1948).
"Not only does resolution of such issues frequently
turn on standards that defy judicial
application, or involve the exercise of a discretion demonstrably
committed to the executive or
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1
Set also Crosby v. Nat'1 Foreign Trade Council.
530 U.S. 363. 386 (2000) (tcknowledgillg thit 'the
nuance* of the
foreign policy of the United Stales ... are much more
the province of the Executive Branch and Congress than
of this
Court") (ciution omitted): Made in Ike USA Foundation
v United Stales. 242 F 3d 1300, 1314 (I Ith
Cir. 2001)
("MaRen relating to the conduct of foreign relations
are so exclusively entrusted to the political branches
of
government as to be largely immune from judicial inquiry
or interference").
17
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legislative
branch; but many such questions uniquely demand single-voiced
statement of the
Government's views." Baker v. Carr,369V.S. 186,211
(1962).
In
his declaration attached hereto as Exhibit B, Assistant
Secretary of State for the
Bureau of International Narcotics and Law Enforcement
Affairs Rand Beers -- who is
responsible for all United States government policies
and initiatives in support of international
counter-narcotics efforts in the Andean region - explains
in detail why the issues raised in this
litigation are not suitable for judicial resolution:
"United
States counternarcotics policy in Colombia and the Andean
Region is the
product of a complicated balancing of U.S. national security
and foreign policy
objectives that cannot be addressed in any private litigation.
This policy has been
approved at the highest levels of the government and has
received the direct
attention of the President, the Secretary of State, and
the National Security
Council, among others, and has been endorsed by Congress.
The decisions
reached in implementing this policy are beyond judicial
expertise, and any
pronouncements by this court in the context of a private
litigation could have
foreign policy and national security consequences that
the court cannot predict
and for which the court cannot account."
Beers
Dec), at 14.
Mr.
Beers states that "the Arias litigation poses
a grave risk to U.S. national security and
foreign policy objectives." Id. at 13. In
particular, Mr. Beers states that disruption of the aerial
illicit crop eradication operations at issue in this case
would: (I) "undermine national security by
depriving the United States of a key weapon in its arsenal
for stemming the flow of illicit
narcotics into this country and by allowing international
terrorist organizations in Colombia to
continue to reap huge profits from drug trafficking with
which they will target U.S. interests and
American lives," (2) interfere with "a linchpin
to U.S. foreign policy objectives to foster
democratic and stable governments in Colombia and other
Andean nations and to further
important trading relationships in the region," and
(3) undercut "the foundation for numerous
bilateral and multilateral commitments between and among
the United States, seven Andean
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nations,
and other international partners, including Great Britain
and Spain." Id. at H 5-6; see
oho id., at fl 28,62. Mr. Beers further explains
that the continued pendency of this litigation
"will undermine U.S. foreign policy and national
security objectives around the world by sending
the message that the United Stales does not speak with
one voice and cannot stand by its
international commitments'' and "threatens breaches
in operational security of the aerial
eradication efforts that would not only jeopardize the
success of the drug eradication efforts but
would pose a grave risk to the lives of (American] pilots
involved in spraying operations." Id. at
17-8; see also id., at 120 (noting that over 100
spray planes and/or escort helicopters were hit by
hostile ground fire in 1999 and 2000, resulting in three
fatalities).
Although
not every case touching upon foreign relations or upon
national security must
be dismissed as nonjusticiable, dismissal is plainly required
here. The Supreme Court has
instructed that, before allowing a plaintiff to proceed
with such a case, a trial court should
consider each of the following six factors:
(1)
"a tcxtually demonstrable constitutional commitment
of the issue to a
coordinate political department";
(2)
"a lack of judicially discoverable and manageable
standards for resolving it";
(3)
"the impossibility of deciding without an initial
policy determination of a
kind clearly for nonjudicial discretion";
(4)
"the impossibility of a court undertaking independent
resolution without
expressing lack of respect due coordinate branches of
government";
(5)
"an unusual need for unquestioning adherence to a
political decision already
made"; and
(6)
"the potentiality of embarrassment from multifarious
pronouncements by
various departments on one question."
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Baker,
369 U.S. at 217. If any one of these six factors
"is inextricable from the case at bar," then
dismissal for non-justiciability on the grounds of a political
question's presence "is appropriate." Id.
In this case, all six of these factors support
dismissal.
First
the national security and foreign policy issues implicated
in this action are plainly
matters reserved to the executive and legislative branches
under Articles I and II of the
Constitution. Decisions pertaining to national security
"are entrusted to the political branches."
Industrie Panificadora. S.A. v. United States, 763
F. Supp. 1154, 1159 (D.D.C. 1991), affd on
other grounds, 957 F.2d 886 (D.C. Cir. 1992). Likewise,
"(a]s courts are unschooled in the
delicacies of diplomatic negotiation and die inevitable
bargaining for the best solution of an
international conflict,' the Constitution entrusts resolution
of sensitive foreign policy issues to the
political branches of government." Abepe v. United
States, 105 F.3d 1400, 1403 (11th Cir.
1997) (citing cases). Moreover, the judiciary has at best
only a limited interest in the matters at
issue in this case. The Court is not being asked to protect
the legal rights of U.S. citizens or any
persons living in this country, but rather is being asked
to hear a challenge by foreign nationals
against U.S. foreign policy and national security determinations.
U.S. courts have properly been
more reluctant to reach out to adjudicate claims implicating
foreign policy or national security
where brought by foreign nationals.4 See
also Beers Decl. at 19 (noting that the putative class
"is drawn from a region adjacent to one largely controlled
by drug traffickers and international
terrorists," raising the possibility that plaintiffs
may have been "intimidated or co-opted by these
hostile forces").
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4
Contnut Ramim v. Weuibtrgtr. 745 f.U
1500, !5M(D.C.Cir. 1984) (claim brought by U.S. citizen
for alleged
seizure of properly during military operations abroad
initially held justiciable), vacated and remanded,
471 U.S.
1113 (1985). case diimastd. 788 F.2d 762 (D.C.
Cir. 1986), uith Eminent* v. Johnson, 361
F.2d 73 (D.C. Cir.
1966) (claim brought by nonresident alien for alleged
damage to property during military operation abroad held
nonjustKiable).
20
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Second,
there are no judicially discoverable and manageable standards
for resolving the
questions raised by this suit. In order to determine whether
the State Department and its
contractor, DynCorp International, conducted aerial narcotics
eradication operations in a
negligent or improper manner, this court would have to
review foreign policy determinations
reached by the U.S. State Department in consultation with
the Colombian government regarding
where and now such operations should be conducted in light
of the countries'joint and respective
national interests. See Beers Decl. at fl 16,26,35,36.
Moreover, the Court would be required
to determine how spray flights should be reasonably conducted
to achieve U.S.-Colombia
objectives of drug eradication while avoiding hostile
ground fire from the drug traffickers and
terrorist organizations in the region. See id.. alH20.21,25,36,47.
The State Department
explained some of the factors implicated in this determination
in its 2001 safety report to
Congress:
"It
would be nearly impossible - tactically and financially
-- to match the pace
and breadth of expansion [of coca cultivation in Colombia]
by dispatching teams
to eradicate the coca fields manually. It would be equally
as difficult to protect
these workers, or their security forces, from the
certain and deadly violence that
would escalate as they encountered hostile coca growers,
insurgents and
paramilitary forces protecting illicit fields. Herbicide
application by airplane is
the most cost-effective way of coping with the magnitude
of the problem and
ensuring that eradication operations do not rum violent.
Spray programs can
more quickly and easily adjust their operations to mitigate
potential violence in
the face of a likely confrontation with hostile growers
and their defenders than
can eradication teams on the ground."
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2001
State Department safety report, at 4. As the Supreme
Court stated in a related context, "it is
difficult to conceive of an area of [discretionary] governmental
activity in which the courts have
less competence." Giligan v. Morgan, 413 U.S.
1, 10 (1973) (holding issues of National Guard
training and weaponry are essentially the exercise of
discretionary professional military
judgments within the constitutionally vested responsibility
of the legislative and executive
branches, and outside the court's competence).' Court
review here will also be significantly
complicated by the fact that much of the information underpinning
U.S. counter-narcotics policy
in Colombia and the Andean Region is highly sensitive
and classified. See Chicago and S.
Airlines, Inc., 333 U.S. at 111 (The President, both
as Commander-in-Chief and as toe Nation's
organ for foreign affairs, has available intelligence
services whose reports neither are nor ought
to be published to the world. It would be intolerable
that courts, without the relevant
information, should review and perhaps nullify actions
of the Executive taken on information
properly held secret. Nor can courts sit in camera in
order to be taken into executive
confidences."); see also Beers Dec), at 127.
Third,
resolution of this case would require an initial policy
determination of a kind
appropriately reserved for the executive and legislative
branches, namely whether the aerial
narcotics eradication program in Southern Colombia is
appropriate. This issue has been
extensively debated by the last two Congresses and the
last two Administrations, and the
considered determination of both of the political branches
of government has been that these
operations are essential to U.S. national security and
foreign policy. See Beers Dccl. at ffi 4,10,
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'
See alio, eg., Atkepe, 105 F 3d »t 1404 (court
has no manageable standards to determine whether Navy
conducted
missile firing drill in a negligent manner); Tiffany,
931 F.2d at 279 ("Myriad possibilities for mischievous
judicial
inquiry abound: whether planes should have been sent at
all; the proper number of plane* the routes they flew;
the
angles of the intercepts; the correct distance from the
target; the proper reaction to weather conditions; the
quality of
on-board radar system; the compatibility of communications
systems."); Zuckerbraun v General Dynamics, 755
F.
Supp. 1134, 1142 (D, Conn 1990) ("courts lack standards
with which to judge whether reasonable care was taken
to
achieve tactical goal* in combat while minimizing injury
and loss of life"), off don other grounds, 935
F.2d 544 (2d
Cir. 1991); Nejad v Untied Slates, 724 F.
Supp. 753,755 (C.D. Cal. 1989) (same).
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14-18,35.
This decision is "of a kind for which the Judiciary
has neither aptitude, facilities nor
responsibility." Chicago & S. Air Lines. Inc.,
333 U.S. at 111. As the Supreme Court recently
explained: "We have, after all, not only recognized
the limitations of our own capacity to
determine precisely when foreign nations will be offended
by particular acts, but consistently
acknowledged that the nuances of the foreign policy of
the United States are much more the
province of the Executive Branch and Congress than of
this Court." Crosby, 530 U.S. at 386; see
also, e.g.,Joo v. Japan, 172 F. Supp.2d 52 (D.D.C.
2001) (holding claim for war crimes brought
by Korean "comfort women* against Japan nonjusticiable
because post-WWII claims settlement
regime had been exclusively constructed by the political
branches, and it was not the place of the
courts to resolve these claims); In re Nazi Era cases
Against German Defendants Litig., 129 F.
Supp.2d 370,377-78 (D.N.J. 2001) (holding claims of WWII
slave laborers brought against
private companies nonjusticiable); Burger-Fischer v.
DeGussa AG, 65 F. Supp.2d 248 (D.NJ.
1999) (same); Iwanowav. Ford Motor Co..(>7 F.Supp.2d424(D.N.i.
1999) (same).
Fourth,
adjudicating this case would express a lack of respect
for the political branches.
The aerial narcotics eradication program has received
direct attention and approval from the
highest levels of the last two Administrations, has received
continued support in Congress, and
has played an integral role in U.S. foreign relations
with countries in the Andean region. See
Beers Dec), at Tf 4,35. Congress recently appropriated
S625 million to provide additional
counter-narcotics funding to sustain and expand U.S. support
for Plan Colombia after extensive
debate regarding the very allegations raised by plaintiffs
in their complaint. See SOBF Tl 45-48.
supra. The determination to proceed with these
operations is squarely within the discretionary
authority and expertise of the political branches, and
is the product of a complicated balancing of
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U.S.
foreign policy and national security interests that cannot
and will not be addressed in any
private litigation. SeeAtkepe, 105 F.3d at 1404.
Fifth,
there is an unusual need here for adherence to the discretionary
decisions reached
by the executive and legislative branches. Because the
Andean region is the source of virtually
all cocaine entering the United States and because of
the close link between illegal narcotics
trafficking in Colombia and international terrorism, any
disruption of the aerial eradication
operations in Colombia will have a myriad of adverse national
security consequences and will
create a legal precedent that could seriously undermine
United States national security efforts in
other parts of the world. See Beers Decl., at fl
6-7,29-47. Further, the aerial narcotics
eradication operations are at the center of a multi-billion
dollar, multi-year foreign policy
initiative involving seven Andean nations, and other international
partners around the world,
including Spain and the United Kingdom. See Beers
Decl. at tl 6,14-18. In reliance on
commitments made by the United States, Colombia has expended
significant resources in
connection with the drug spraying campaign, and its police
and military forces are undergoing
training by DynCorp International and U.S. military personnel
that will allow these forces to
assume complete control over the program in the coming
years. See id., at fl 14-16,21,36.
Sixth,
adjudicating this case would give rise to the potential
of embarrassment from
multifarious pronouncements regarding U.S. foreign policy
and antitcrrorism policy in the
Andean region. The United States government has repeatedly
expressed its commitment to
supporting counter-narcotics efforts in the Andean Region,
and Congress has just recently
appropriated hundreds of millions of additional dollars
in support of those efforts. Any action
other than an immediate dismissal by this Court would
severely undercut the United States'
credibility in the Andean region, and would significantly
complicate efforts by the United States
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to
build international coalitions on a variety of issues
crucial to the national security. See Beers
Decl.atl?.
This
case implicates each one of the six separately sufficient
grounds for non-
justiciability under Baker. Plaintiffs' claims
are not proper for judicial review and should be
dismissed,
n. Plaintiffs Fail to State a Claim Under Federal Law.
Plaintiffs'
federal law claims under the Alien Torts Claims Act ("ATCA")
and the Torture
Victims Protection Act of 1991 ("TVPA") fail
for the additional reason that the Complaint fails
to state a claim under those two statutes. See ATCA
and TVPA, 28 U.S.C.A. § 1350 (2000).
Plaintiffs base their ATCA and TVPA claims on unsubstantiated
allegations that DynCorp
International's activities under its contract with the
State Department constitute torture in
violation of "the law of nations, customary international
law, and worldwide industry standards
and practices." See Complaint H 63 & 67.
These claims must be dismissed because: (1)
DynCorp International's alleged violation of international
law was directly authorized by
Congress; (2) plaintiffs fail to allege concrete facts
showing conduct that would satisfy any
international law definition of torture; and (3) even
assuming, arguendo, that plaintiffs' had
alleged such facts, the ATCA and TVPA do not reach the
conduct of private corporations.
A.
Congress Authorized the Aerial Eradication Operations
Plaintiffs Allege to be in
Violation of International Law.
In
order to establish a claim under the ATCA, plaintiffs
must show that DynCorp
International violated the "law of nations,'' i.e.,
international law. 28 U.S.C.A. § 1350; Beanal
v.
Freepon-McMoran. Inc., 197 F.3d 161,164-65 (5th Cir.
1999). Similarly, plaintiffs' claim
under the TVPA must be premised on an alleged violation
of international law regarding torture.
See 28 U.S.C.A. § 1350, note; see also
Cabiri v. Assasie-Gyimah. 92 \ F. Supp. 1189, 1195
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(S.O.N.Y.
1996) ("The Torture Act was promulgated to carry
out obligations of the United States
under the United Nations Charter and other international
agreements pertaining to the protection
of human rights") (citation omitted). But plaintiffs
cannot make any such showing here, because
it is undisputed that DynCorp International's allegedly
unlawful conduct is expressly authorized
by Congress. See 22 U.S.C.A. § 2291; see
also Complaint 127 (alleging that "the monetary
compensation to the DynCorp Defendants for the extermination
of cocaine plants and/or heroin
poppies from the Colombian rain forest comes directly
from funds approved by Congress for
such purposes").
It
is well established that "no enactment of Congress
can be challenged on the ground that
it violates customary international law." Committee
of United Slates Citizens Living in
Nicaragua v. Reagan, 859 F.2d 929,939 (D.C.
Cir. 1988). Thus, while statutes "inconsistent
with principles of customary international law may well
lead to international law violations ...
within the domestic legal realm, that inconsistent statute
simply modifies or supersedes
customary international law to the extent of the inconsistency."
Id., 859 F.2d at 938. "(S)o far as
concerned domestic law, the rule was laid down that subsequently
enacted statutes would
preempt existing principles of customary international
law -just as they displaced prior
inconsistent treaties." ld.,iS9F.2du939;seeabo,
e.g.,Breardv. Greene,523 U.S. 371,376
(1998) ("an Act of Congress ... is on a full parity
with a treaty, and ... when a statute which is
subsequent in time is inconsistent with a treaty, the
statute to the extent of conflict renders the
treaty null"); Barrera-Echavarria v. Rison, 44
F.3d 1441,1451 (9th Cir. 1995) ("international
law is displaced by 'a properly enacted statute, provided
it be constitutional, even if that statute
violates international law'") (quoting Alvarez-Mendez
v. Slock, 941 F.2d 956,963 (9th Cir.
1991); United Stales v. Pinto-Mejia, 720 F.2d 248,259
(2d Cir. 1983) ("[I]n enacting statutes.
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Congress
is not bound by international law.... If it choses to
do so, it may legislate with respect
to conduct outside the United States, in excess of the
limits posed by international law.").
Congress
has repeatedly authorized the aerial eradication operations
that plaintiffs
contend violate international law for over 20 years, under
chapter 8 of Part I of the Foreign
Assistance Act of 1961, as amended, 22 U.S.C.A. §
2291. See 22 U.S.C.A. § 2291, historical
and statutory notes, 1978 Amendment (adding provision
to statute regarding the use of
herbicides for aerial eradication); see also Beers
Decl. at 110 (noting that the United States and
Colombia "have worked together in joint aerial eradication
efforts since 1978"). During the past
20 years. Congress has given careful scrutiny to any alleged
health and environmental impacts of
these spraying operations, and each year. Congress has
made an informed decision to reauthorize
and fund the aerial eradication efforts as a central part
of the U.S. international narcotics control
policy. Ste22 U.S.C.A. § 2291, historical
and statutory notes, 1981 Amendment (adding
predecessor to current annual reporting requirement);
see also 22 U.S.C.A. § 2291(dX3); Beers
Decl. at H 22-23,35,62; SOBF H 36-48, supra. Congress
has clearly spoken to the legality of
these operations.
Moreover,
while the approval of the U.S. Congress is sufficient
by itself to defeat their
international law claim, plaintiffs' attempt to craft
an international law violation here also runs
directly counter to the considered judgment of the international
community. In sharp contrast to
plaintiffs' claims, international law specifically endorses
efforts to eradicate illicit narcotics.
Article 14 of the United Nations Convention Against Illicit
Traffic in Narcotics Drugs and
Psychotropic Substances of 1988 (attached hereto as Exhibit
H), to which 162 nations are
signatories, directs thai "(c]ach Party shall take
appropriate measures to prevent illicit cultivation
of and to eradicate plants containing narcotic or psychotropic
substances, such as opium poppy,
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coca
bush and cannabis plants" and that "Parties
may co-operate to increase the effectiveness of
eradication efforts." Moreover, the aerial narcotics
eradication operations here at issue are a key
component of Plan Colombia, which has been endorsed and
supported by the Andean nations
and by other international partners, including Spain and
Great Britain. See Beers Decl. at 16.
The only quasi-governmental forces that have opposed these
operations are the international
terrorist organizations in Colombia that are partners
in the illegal narcotics industry. See Beers
Decl. at 139,43,47.
B.
Plaintiffs Fail to Allege Facts Showing Any Act of
Intentional Misconduct by DvnCorp International that Could
Constitute a Violation of International Law under the
ATCA or the TVPA.
Plaintiffs
also fail to substantiate their inflammatory allegations
with any concrete facts
that would support a claim that DynCorp International
engaged in any intentional misconduct in
violation of international law. Plaintiffs face a heavy
burden in alleging a violation of
international law actionable under the ATCA. The ATCA
"applies only to shockingly egregious
violations of universally recogni/ed principles of international
law." Beanal, 197 F.3d at 167
(dismissing environmental tort claim brought under ATCA
and TVPA for failure to state a
claim). Thus, "[i]t is only where the nations of
the world have demonstrated that the wrong is of
mutual and not merely several, concern, by means of express
international accords, that a wrong
generally recognized becomes an international law violation
in the meaning of the [ATCA]." Id.
Plaintiffs
attempt to meet this heavy burden by alleging that DynCorp
International's
involvement in the aerial narcotics eradication operations
constitutes torture, as that term is
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defined
in various international conventions. See Complaint
fl 50 & 65.6 But plaintiffs fail
to
allege any facts that would support such a claim. Under
international law, torture is defined as:
"any
act by which severe pain or suffering, whether physical
or mental, is
intentionally inflicted by or at the instigation of a
public official on a person for
such purposes as obtaining from him or a third person
information or confession,
punishing him for an act he has committed or is suspected
of having committed,
or intimidating or coercing him or a third person, or
for any reason based on
discrimination of any kind, when such pain or suffering
is inflicted by or at the
instigation of or with the consent or acquiescence of
a public official or other
person acting in an official capacity. It does not include
plain or suffering arising
only from, inherent in or incidental to lawful sanctions."
See
Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or
Punishment (Article I).' Accordingly, plaintiffs must
allege facts showing, inter alia, that
DynCorp International acted: (I) at the instigation of
a public official, (2) with the intent to
inflict severe pain or suffering, and (3) for purposes
of obtaining information, punishment,
intimidation, or discrimination.
Plaintiffs
here fail to allege facts to substantiate any of the elements
of torture. At the
most basic level, plaintiffs' claims fail because plaintiffs
concede that their alleged harm was not
due to any intentional conduct taken against them. To
the contrary, plaintiffs allege that the
herbicide that they contend caused them harm was intended
for targets in Colombia but "shifted
with the wind." See Complaint fl 9,11,13,16,18,20.
Plaintiffs also do not allege any facts
showing that DynCorp International believed, let alone
intended, that the herbicide would cause
adverse health and environmental effects. Again to the
contrary, plaintiffs cite in their complaint
to the "position of the United States government,
as expressed by Assistant Secretary of State
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'
Plaintiffs also allege that DynCorp International's conduct
constitutes "Crimes Against Humanity." set
Complain!
160, but this allegation appears to be identical in substance
to their allegation thai DynCorp International engaged
in
torture.
'
The definition of torture in the TPVA and in the other
international agreements cited in the Anas complaint
are
substantially similar.
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Rand
Beers" that the herbicide used by DynCorp International
"has toxicity similar to common
salt." Complaint 136.
Further,
plaintiffs fail to allege any facts snowing state sponsorship
of an alleged
intentional infliction of severe pain and suffering. Instead,
plaintiffs offer unsubstantiated and
non-specific allegations of a mysterious conspiracy involving
various U.S. oil companies and oil
ventures in Ecuador with no identified connection to DynCorp
International or U.S. counter-
narcotics policies in the region. See Complaint
fl 29-32. Notably, plaintiffs'counsel in this
litigation have separately been engaged for the past eight
years in litigation against these same
U.S. oil companies for unrelated environmental torts allegedly
committed against an overlapping
putative class of Ecuadoran plaintiffs. That litigation
was recently dismissed on forum non
convenient grounds, and it appears from plaintiffs'
allegations here that plaintiffs' counsel are
trying to use this lawsuit as a means to open a new front
in that prior, otherwise unrelated,
litigation. SeeAguinda v. Texaco. Inc., 142 F.
Supp.2d 534 (S.D.N.Y. 2001).
Simply
put, plaintiffs' claims are devoid even of allegations
sufficient to constitute torture
under international law, let alone facts that would put
DynCorp International on notice as to any
specific conduct that would support such allegations.
C.
Neither the ATCA nor the TVPA Provides a Cause of Action
Against a Private
Corporation.
Plaintiffs'
ATCA and TVPA claims against DynCorp International fail
for the additional
reason that neither of these statutes creates a cause
of action for alleged private acts of torture. In
his oft-cited concurrence in Tet-Oren v. Libyan Arab
Republic, 726 F.2d 774, 795 (D.C. Cir.
1984), Judge Edwards declined to read the ATCA "to
cover torture by non-state actors, absent
guidance from the Supreme Court on the statute's usage
of the term 'law of nations.'" Likewise,
the Second Circuit held in Kadic v. Karadztc, 70
F.3d 232,239,243 (2d Cir. 1995), that while
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"certain
forms of conduct violate the law of nations whether undertaken
by those acting under
the auspices of the state or only as private individuals,"
torture is "proscribed by international
law only when committed by state officials or under color
of law." See also Doc v. Islamic
Salvation Front, 993 F. Supp. 3,8 (D.D.C. 1998) (following
Kadic).
The
TPVA also requires state action. By its plain language,
the Torture Victim
Protection Act renders liable only those individuals who
have committed torture "under actual or
apparent authority, or color of law, of any foreign nation."
See Kadic, 70F.3dat245. The
legislative history of the TPVA confirms that this statutory
language "was intended to 'make
clear that the plaintiff must establish some governmental
involvement in the torture or killing to
prove a claim,' and that the statute 'does not attempt
to deal with torture or killing by purely
private groups.'" Id., 70 F.3d at 245 (quoting
H.R.Rcp. No. 102-367, at 5 (1991), reprinted in
1992 U.S.C.C.A.N. 84,87); see also Islamic Salvation
Front, 993 F. Supp. at 9 (same).
Plaintiffs' claim under the TVPA fails for the additional
reason that the statute only applies to
"individuals" and thus does not provide a cause
of action against a corporations even for state-
sponsored terrorism. See Beanal v. Freeport-McMoran,
Inc., %9 F. Supp. 362, 381-82 (E.D. La.
1997) (concluding that the term "individuals"
in TVPA docs not include corporations), affd on
other grounds, 197 F.3d 161 (5th Cir. 1999).
III. Plaintiffs' Stale Tort Law Claims Are Preempted.
Plaintiffs
also ask this court to find that DynCorp International's
conduct in support of
U.S. counter-narcotics operations in Colombia violate
various doctrines of stale common law.
Even if these claims were justiciable and assuming for
purposes of this pleading that state
common law principles are relevant to alleged harms in
Ecuador, plaintiffs' state tort law claims
fail because they are preempted by federal law on two
separate grounds. First, state regulation of
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national
security or foreign policy concerns through state tort
law runs afoul of the Supremacy
Clause of the United States Constitution. Second,
plaintiffs' state tort law claims rely on
allegations that the herbicide used in the aerial narcotics
eradication efforts is harmful to human
health and the environment, a premise that has been specifically
rejected by the federal
government.
A.
Plaintiffs May Not Rclv on State Tort Law to Regulate
U.S. National Security and
Foreign Policy Determinations.
The
Supreme Court has cautioned that "the delicacy of
issues which [a]re posed [in
matters involving foreign policy] raisc[] grave questions
as to the propriety of allowing a state
system of regulation to function alongside of a federal
system. In that field, 'any concurrent state
power that may exist is restricted to the narrowest of
limits."' Alien-Bradley Local No. 1111 v.
Wisconsin Employment Relations &/., 315 U.S. 740,749
(1942) (quoting Hines v. Davidowitz,
312 U.S. 52,68 (1941)). The Supreme Court's rulings
in Hines and its progeny "mean that when
Congress legislates in an area of foreign relations, there
is a strong presumption that it was
intended to preempt the field, in particular where the
federal legislation docs not touch on a
traditional area of state concern." National Foreign
Trade Council v. Natsios, 181 F.3d 38,76
(1st Cir. 1999), affd sub nom.. Crosby v. National
Foreign Trade Council, 530 U.S. 363 (2000).
The fact that foreign policy and national security are
areas "of unique federal concern changes
what would otherwise be a conflict that cannot produce
pre-emption into one that can." Boyle v.
United Technologies Corp., 487 U.S. 500, 508 (1988);
see also Lawrence H. Tribe, American
Constitutional Law § 4-5 at 656 (3d ed. 2000)
("all state action, whether or not consistent with
current foreign policy, that distorts the allocation of
responsibility to the national government for
the conduct of American diplomacy is void as an unconstitutional
infringement on an exclusively
federal sphere of responsibility").
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Plaintiffs'
requests for injunctive and damages relief would plainly
have the effect of
regulating U.S. foreign policy and national security determinations.
See Cipollone v. Liggett
Group. Inc., 505 U.S. 504,521 (1992) ("state
regulation can be as effectively exerted through an
award of damages as through some form of preventive relief.
The obligation to pay [state law
ton] compensation can be, indeed is designed to be, a
potent method of governing conduct and
controlling policy") (citation omitted). Through
their state common law tort claims, plaintiffs
seek to block further aerial illicit crop eradication
operations in Southern Colombia that the
federal government has determined are essential to U.S.
foreign relations with the Andean
nations and necessary to protect Americans from the twin
threats of illegal narcotics trafficking
and international terrorism. See Beers Dec\.,
passim. These federal determinations leave no
room for state-based tort law intrusion, and plaintiffs'
common law claims arc accordingly
preempted.
Plaintiffs'
tactical decision to sue the United States' government
contractor, DynCorp
International, rather than the United States directly
does not alter this analysis. The Supreme
Court has explained that regardless whether a case "involves
an independent contractor
performing its obligation under a procurement contract,
rather than an official performing his
duty as a federal employee ... there is obviously implicated
the same interest in getting the
Government's work done." Boyle, 487 U.S. at
505. Accordingly, if the "authority to carry out
the project was validly conferred, that is, if what was
done was within the constitutional power of
Congress, there is no liability for the contractor for
executing its will." Id., 487 U.S. at 506.
Courts have repeatedly held that where the federal government
is immune from liability under
state law, that immunity extends to federal contractors
acting in the government's stead. See
Brmm v. Nationsbank Corp., 188 F.3d 579, 589 (5th
Cir. 1999) ("If the private defendants acted
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in
good faith by reasonably relying upon the authority of
government agents, their actions are
shielded from state law action"); Mangold v. Analytic
Servs.. Inc.. 77 F.3d 1442, 1447-48 (4th
Cir. 19%) ("If absolute immunity protects a particular
governmental function, no matter how
many times or to what level that function is delegated,
it is a small step to protect that function
when delegated to private contractors, particularly in
light of the government's unquestioned
need to delegate governmental (unctions."); Koohi
v. United Stales, 976 F.2d 1328,1336 (9th
Cir. 1992) ("the Supreme Court has recognized that
the exceptions to the Federal Torts Claims
Act may preempt common law tort actions against defense
contractors under certain
circumstances."); see also Beers Decl. at
fl 24-28.
B.
The Federal Government's Determination Regarding the
Safety of the Aerial
Eradication Operations in Colombia Preempts Plaintiffs'
State Tort Law
Allegations to the Contrary.
Plaintiffs'
state common law tort claims are also impliedly preempted
because they
conflict with the federal government's specific direction
as to the herbicide used in the aerial
narcotics eradication operations in Colombia and the federal
government's determination that this
herbicide is safe to humans, livestock, and the environment.
The Supreme Court has explained
that state common law tort claims are impliedly preempted,
even where Congress has not
evidenced an intent to occupy a given field, "to
the extent [they] actually conflict!) with federal
law, that is, when it is impossible to comply with both
state and federal law, or where the state
law stands as an obstacle to the accomplishment of the
full purposes and objectives of
Congress." Silkwood v. Kerr-McGee Corp., 464
U.S. 238, 248 (1984) (citations omitted).
Where a private plaintiffs arguments "would permit
common-law [tort] actions that 'actually
conflict' with federal regulations, it would take from
those who would enforce a federal law the
very ability to achieve the law's congressionally mandated
objectives that the Constitution,
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through
the operation of ordinary pre-emption principles, seeks
to protect." Geier v. American
Honda Motor Co.. Inc., 529 U.S. 861. 872 (2000) (holding
that implied preemption required
where "state law could impose legal duties that would
conflict directly with federal regulatory
mandates, say, by premising liability upon the presence
of the very windshield retention
requirements that federal law requires").
There
can be no question that plaintiffs' common law claims
here would make it
"impossible to comply with both federal and state
law" and stand as an "obstacle to the
accomplishment of the full purposes and objectives of
Congress." Pursuant to their contract, the
State Department selected, approved, and supplied DynCorp
International with the very
herbicide (glyphosatc) and adjuvants that plaintiffs would
have this court determine under state
ton law caused alleged adverse health and environmental
effects. See Beers Dec), at 126.
Congress specifically directed and authorized the President
to monitor and report back to
Congress as to the health and environmental effects of
the spraying operations. See 22 U.S.C.A.
§ 2291(d); H.R. Conf. Rep. No. 106-710, at 172 (2000).
The State Department (to whom the
President delegated his authority) specifically studied
the herbicide spray used in the operations
at issue in Southern Colombia and determined that there
are "no grounds to suggest concern for
human health." 2001 State Department safety report,
at 2; see also Beers Dccl. at T122-23.
Further, the State Department determined that "herbicide
application by airplane is the most cost-
effective way of coping with the magnitude of the problem
and ensuring that the eradication
operations do not turn violent" and that "switching
to 'less effective' chemicals would risk
undermining the eradication effort and increasing coca
cultivation, a move that would inevitably
cause greater health and environmental damage to Colombia."
2001 State Department safety
report, at 4.
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CONCLUSION
The
Ecuadoran plaintiffs' attempt to invoke the jurisdiction
of this U.S. court to challenge
U.S. foreign policy and national security determinations
in the Andean region is wholly
improper. As explained by Assistant Secretary of State
Beers, the continued prosecution of this
litigation would pose grave risks to the prospects of
peace and security in Colombia and its
neighboring countries, would undermine the war against
terrorism, and would cripple U.S.
efforts to stem the flow of illicit narcotics into this
country. Plaintiffs' claims are nonjusticiable,
and their invocation of international law and state tort
law is directly contrary to the expressed
intent of Congress. Plaintiffs' complaint should be dismissed
in its entirety.
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Jo/G.
Hoilrhgsworth (9.C. Bar # 203275)
tfatharinc R. Latimcr (D.C. Bar # 405137)
Eric G. Uskcr (D.C. Bar # 430180)
Ignacia S. Moreno (D.C. Bar # 434456)
SPR1GGS & HOLLINGSWORTH
13501 Street, N.W.
Washington, D.C. 20005-3305
(202) 898-5800
Attorneys
for Defendants
DynCorp, el ai.
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