Price v. Socialist People's Libyan Arab Jamahiriya

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2002 Decided June 28, 2002

No. 00-7244

Michael H. Price and

Roger K. Frey,

Appellees

v.

Socialist People's Libyan Arab Jamahiriya,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 97cv00975)

Arman Dabiri argued the cause and filed the briefs for

appellant.

James Cooper-Hill argued the cause for appellees. With

him on the brief were Andrew C. Hall and Nelson M. Jones

III.

Michael L. Martinez argued the cause for amicus curiae

Blake Kilburn on his behalf and as administrator of the

estate of Peter Kilburn. With him on the brief was Stuart H.

Newberger.

Before: Edwards and Sentelle, Circuit Judges, and

Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Edwards.

Edwards, Circuit Judge: This case involves a lawsuit

brought under the Foreign Sovereign Immunities Act

("FSIA"), 28 U.S.C. ss 1330, 1602-1611 (1999), by two Ameri-

can citizens who sued the Socialist People's Libyan Arab

Jamahiriya ("Libya") for torture and hostage taking. Plain-

tiffs' lawsuit seeks cover under a recent amendment to the

FSIA which strips certain foreign states - including Libya -

of their sovereign immunity in American courts when they

engage in such conduct. See 28 U.S.C. s 1605(a)(7).

In response to plaintiffs' suit, Libya moved to dismiss,

claiming sovereign immunity and a lack of personal jurisdic-

tion. The District Court denied the motion to dismiss and

Libya now seeks review in this interlocutory appeal. Two

central questions have been raised on appeal: first, whether

plaintiffs have alleged facts that are legally sufficient to

revoke Libya's immunity under the FSIA; and, second,

whether the assertion of personal jurisdiction over Libya in

the manner specifically authorized by the FSIA violates the

Due Process Clause.

We hold, first, that plaintiffs have failed to state a claim for

hostage taking adequate to abrogate sovereign immunity and

establish subject matter jurisdiction. The allegations set

forth in the complaint do not come close to satisfying the

definition of "hostage taking" prescribed by the FSIA. We

hold further that the allegations supporting plaintiffs' torture

claim are not adequate to bring the case within the statutory

exceptions to foreign sovereign immuntiy. The complaint in

its present form is simply too conclusory to satisfy

s 1605(a)(7). In contrast to the hostage-taking claim, howev-

er, plaintiffs have at least intimated that they can allege facts

that might state a proper claim for torture under the FSIA.

Accordingly, we will remand the case to allow plaintiffs to

attempt to amend their complaint in an effort to satisfy the

statute's rigorous definition of torture. As a word of caution,

we note that there is a question as to whether the complaint

states a claim for relief upon which plaintiffs can recover;

although this matter is not properly before us on interlocu-

tory review, we are not foreclosing review of the issue in the

District Court.

Finally, we hold that Libya, as a foreign state, is not a

"person" within the meaning of the Due Process Clause. We

therefore conclude that the Constitution imposes no limitation

on the exercise of personal jurisdiction by the federal courts

over Libya.

I. Background

The facts and procedural history of this case are relatively

straightforward. Plaintiffs Michael Price and Roger Frey,

Americans who had been living in Libya in the employ of a

Libyan company, were arrested in March of 1980 after taking

pictures of various places in and around Tripoli. Libyan

government officials apparently believed that these photo-

graphs constituted anti-revolutionary propaganda, because

they would portray unfavorable images of life in Libya.

Price and Frey allege that, following their arrest, they

were denied bail and kept in a "political prison" for 105 days

pending the outcome of their trial. In their complaint, plain-

tiffs assert that they endured deplorable conditions while

incarcerated, including urine-soaked mattresses, a cramped

cell with substandard plumbing that they were forced to

share with seven other inmates, a lack of medical care, and

inadequate food. The complaint also asserts that the plain-

tiffs were "kicked, clubbed and beaten" by prison guards, and

"interrogated and subjected to physical, mental and verbal

abuse." Compl. at p 4. The complaint contends that this

incarceration was "for the purpose of demonstrating Defen-

dant's support of the government of Iran which held hostages

in the U.S. Embassy in Tehran, Iran." Id. at p 7.

Ultimately, plaintiffs were tried and acquitted of the crimes

with which they had been charged. After the verdict was

announced, however, the Libyan government retained their

passports for another 60 days while the prosecution pursued

an appeal, which is permitted under the Libyan Code of

Criminal Procedure. When this appeal was eventually reject-

ed, plaintiffs were permitted to leave Libya.

On May 7, 1997, Price and Frey commenced a civil action

against Libya in federal court. Their complaint asserted

claims for hostage taking and torture and sought $20 million

in damages for each man. Following receipt of process,

Libya filed a motion to dismiss, arguing that (1) the grant of

subject matter jurisdiction over plaintiffs' action was uncon-

stitutional, (2) the court's exercise of personal jurisdiction was

unconstitutional, and (3) plaintiffs had failed to state a claim

on which relief could be granted. The District Court rejected

each of these arguments, thus vitiating Libya's sovereign

immunity defense and allowing the court to assert both

subject matter jurisdiction over plaintiffs' claims and personal

jurisdiction over the defendant. Libya now pursues an inter-

locutory appeal.

II. Discussion

On appeal, Libya has not renewed its constitutional attack

on the court's subject matter jurisdiction. Instead, it claims

that the District Court erred in not resolving certain disputed

issues of fact, proceeding instead as if plaintiffs' factual

allegations had already been established. Libya also argues

that, even assuming that these facts were true, the plaintiffs

have failed to make out a valid claim either for torture or

hostage taking under the FSIA. Finally, Libya asserts that

the Due Process Clause does not permit an American court to

take jurisdiction over a foreign sovereign based on conduct

that has no connection to the United States save for the

nationality of the plaintiff.

A. Plaintiffs' Cause of Action

Before we address the issues arising under the FSIA and

the Due Process Clause, we first want to make it clear that

our decision today does not address or decide whether the

plaintiffs have stated a cause of action against Libya. The

parties appear to assume that a substantive claim against

Libya arises under the FSIA, but this is far from clear. The

FSIA is undoubtedly a jurisdictional statute which, in speci-

fied cases, eliminates foreign sovereign immunity and opens

the door to subject matter jurisdiction in the federal courts.

See First Nat'l City Bank v. Banco Para El Comercio

exterior de Cuba, 462 U.S. 611, 620 (1983). There is a

question, however, whether the FSIA creates a federal cause

of action for torture and hostage taking against foreign

states. See Roeder v. Islamic Republic of Iran, 195 F. Supp.

2d 140, 171-73 (D.D.C. 2002).

The "Flatow Amendment" to the FSIA confers a right of

action for torture and hostage taking against an "official,

employee, or agent of a foreign state," Pub. L. No. 104-208,

Div. A, Title I, s 101(c) (Sept. 30, 1996), codified at 28 U.S.C.

s 1605 (note); see Flatow v. Islamic Republic of Iran, 999

F. Supp. 1, 12-13 (D.D.C. 1998), but the amendment does not

list "foreign states" among the parties against whom such an

action may be brought. While it is possible that such an

action could be brought under the "international terrorism"

statute, 18 U.S.C. s 2333(a), cf. Boim v. Quranic Literacy

Inst., ___ F.3d ___, 2002 WL 1174558 (7th Cir. June 5, 2002),

no such claim has been raised in this case.

The question relating to plaintiffs' cause of action has yet to

be raised or addressed in the District Court, and it was

neither briefed nor argued by the parties during this appeal.

Therefore, although we flag the issue, we will leave its

disposition to the District Court in the first instance following

remand of this case. We will turn our attention now to the

matters before us, i.e., the issues arising under the FSIA and

the Due Process Clause.

B. The 1996 Amendments to the Foreign Sovereign Im-

munities Act

The FSIA provides a basis for asserting jurisdiction over

foreign nations in the United States. Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). The

statute, which was originally enacted in 1976, confers immuni-

ty on foreign states in all cases that do not fall into one of its

specifically enumerated exceptions. See 28 U.S.C. ss 1605,

1607; McKesson HBOC, Inc. v. Islamic Republic of Iran, 271

F.3d 1101, 1105 (D.C. Cir. 2001). These exceptions were

crafted in order to codify the "restrictive theory" of sovereign

immunity, under which immunity is generally limited to a

foreign state's public or governmental acts (jure imperii) but

withheld from its private or commercial acts (jure gestionis).

See H.R. Rep. No. 94-1487, at 7 (1976); Jackson v. People's

Republic of China, 794 F.2d 1490, 1493 (11th Cir. 1986).

The FSIA thus begins with a presumption of foreign sover-

eign immunity, 28 U.S.C. s 1604, qualified by a list of specific

circumstances in which that immunity is unavailable. These

include cases in which the state has waived its immunity, id.

at s 1605(a)(1), cases based upon various forms of commercial

activity, id. at s 1605(a)(2), takings of property in violation of

international law, id. at s 1605(a)(3), and torts committed in

the United States, id. at s 1605(a)(5). The original FSIA was

not intended as human rights legislation. See Jennifer A.

Gergen, Human Rights and the Foreign Sovereign Immuni-

ties Act, 36 Va. J. Int'l L. 765, 771 (1996). Thus, no matter

how allegedly egregious a foreign state's conduct, suits that

did not fit into one of the statute's discrete and limited

exceptions invariably were rejected. See, e.g., Saudi Arabia

v. Nelson, 507 U.S. 349 (1993) (holding that a claim arising

from the detention and torture of an American citizen in

Saudi Arabia was not "based upon a commercial activity

carried on in the United States"); Smith v. Socialist People's

Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996) (hold-

ing that Libya retained its sovereign immunity for the bomb-

ing of Pam Am 103 over Lockerbie, Scotland); Princz v. Fed.

Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994) (holding

that plaintiff could not recover for slave labor performed at

Nazi concentration camps, because Germany's conduct was

not commercial activity causing a "direct effect in the United

States" and did not constitute an implied waiver of sovereign

immunity); Siderman de Blake v. Republic of Argentina, 965

F.2d 699 (9th Cir. 1992) (holding that Argentina was immune

from liability for acts of torture committed by the ruling

junta); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775

n.1 (D.C. Cir. 1984) (Edwards J., concurring) (FSIA precludes

jurisdiction over Libya for armed attack on civilian bus in

Israel); cf. Amerada Hess, 488 U.S. at 436 ("[I]mmunity is

granted in those cases involving violations of international law

that do not come within one of the FSIA's exceptions.").

Under the original FSIA, therefore, terrorism, torture, and

hostage taking committed abroad were immunized forms of

state activity. See H.R. Rep. No. 103-702, at 4 (1994) ("[T]he

FSIA does not currently allow U.S. citizens to sue for gross

human rights violations committed by a foreign sovereign on

its own soil."). Indeed, in Nelson, the Supreme Court recog-

nized that conduct of the sort alleged in the present case -

"wrongful arrest, imprisonment, and torture" - amounted to

abuses of police power, and "however monstrous such abuse

undoubtedly may be, a foreign's state's exercise of the power

of its police has long been understood for purpose of the

restrictive theory as peculiarly sovereign in nature." 507

U.S. at 361; see also Mathias Reimann, A Human Rights

Exception to Sovereign Immunity: Some Thoughts on Princz

v. Federal Republic of Germany, 16 Mich. J. Int'l L. 403, 417-

18 (1995) (observing that under the unamended FSIA "efforts

to persuade the courts to recognize a human rights exception

to sovereign immunity" had failed).

The mounting concern over decisions such as these eventu-

ally spurred the political branches into action. See John F.

Murphy, Civil Liability for the Commission of International

Crimes as an Alternative to Criminal Prosecution, 12 Harv.

Hum. Rts. J. 1, 34 (1999). In 1996, as part of the comprehen-

sive Antiterrorism and Effective Death Penalty Act

("AEDPA"), Pub. L. No. 104-132, s 221(a), 110 Stat. 1214

(Apr. 24, 1996), Congress amended the FSIA to add a new

class of claims for which certain foreign states would be

precluded from asserting sovereign immunity. Specifically,

the amendment vitiates immunity in cases

in which money damages are sought against a foreign

state for personal injury or death that was caused by an

act of torture, extrajudicial killing, aircraft sabotage,

hostage taking, or the provision of material support or

resources ... for such an act if such act or provision of

material support is engaged in by an official, employee,

or agent of such foreign state while acting within the

scope of his or her office, employment, or agency[.]

28 U.S.C. s 1605(a)(7). In enacting this provision, Congress

sought to create a judicial forum for compensating the victims

of terrorism, and in so doing to punish foreign states who

have committed or sponsored such acts and deter them from

doing so in the future. See Daliberti v. Republic of Iraq, 97

F. Supp. 2d 38, 50 (D.D.C. 2000); Molora Vadnais, The

Terrorism Exception to the Foreign Sovereign Immunities

Act, 5 UCLA J. Int'l L. & Foreign Aff. 199, 216 (2000).

While such legislation had long been sought by victims'

groups, it had been consistently resisted by the executive

branch. See Alan Gerson & Jerry Adler, The Price of

Terror 212-26 (2001); H.R. Rep. No. 102-900, at 3-4, 11

(1992). Executive branch officials feared that the proposed

amendment to FSIA might cause other nations to respond in

kind, thus potentially subjecting the American government to

suits in foreign countries for actions taken in the United

States. See Murphy, supra, at 35-37; H.R. Rep. No. 103-702,

at 12 (1994). Although these reservations did not prevent the

amendment from passing, they nevertheless left their mark in

the final version of the bill.

Section 1605(a)(7) has some notable features which reveal

the delicate legislative compromise out of which it was born.

First, not all foreign states may be sued. Instead, only a

defendant that has been specifically designated by the State

Department as a "state sponsor of terrorism" is subject to the

loss of its sovereign immunity. s 1605(a)(7)(A). Second,

even a foreign state listed as a sponsor of terrorism retains

its immunity unless (a) it is afforded a reasonable opportunity

to arbitrate any claim based on acts that occurred in that

state, and (b) either the victim or the claimant was a U.S.

national at the time that those acts took place.

s 1605(a)(7)(B). In the present case, Libya has been desig-

nated as a sponsor of terrorism. See 31 C.F.R. s 596.201

(2001); Rein v. Socialist People's Libyan Arab Jamahiriya,

162 F.3d 748, 764 (2d Cir. 1998). Moreover, both plaintiffs

are American citizens, and Libya does not contend that it has

been denied a chance to arbitrate their claims.

If service of process has been made under s 1608, personal

jurisdiction over a foreign state exists for every claim over

which the court has subject matter jurisdiction. See 28

U.S.C. s 1330(b). In turn, the statute automatically confers

subject matter jurisdiction whenever the state loses its immu-

nity pursuant to s 1605(a)(7). See id. at s 1330(a). Personal

jurisdiction determinations always have been made in this

way under the FSIA. See Joseph W. Dellapenna, Suing

Foreign Governments and Their Corporations 9 (1988) (com-

menting on this "significant compression," whereby both

"competence [subject matter jurisdiction] and personal juris-

diction depend upon whether the foreign state is immune

under the substantive rules in the act"); see also Harris v.

VAO Intourist, Moscow, 481 F. Supp. 1056, 1065 (E.D.N.Y.

1979) (Weinstein, J.) (noting the way in which the FSIA

collapses subject matter jurisdiction, in personam jurisdic-

tion, and sovereign immunity into a single inquiry).

Under the original FSIA, however, it was generally under-

stood that in order for immunity to be lost, there had to be

some tangible connection between the conduct of the foreign

defendant and the territory of the United States. See Verlin-

den B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 490 & n.15

(1983); Lee M. Caplan, The Constitution and Jurisdiction

over Foreign States: The 1996 Amendments to the Foreign

Sovereign Immunities Act in Perspective, 41 Va. J. Int'l L.

369, 406-08 (2001); cf. McKeel v. Islamic Republic of Iran,

722 F.2d 582, 588 (9th Cir. 1983) ("[N]othing in the legislative

history [of the 1976 Act] suggests that Congress intended to

assert jurisdiction over foreign states for events occurring

wholly within their own territory. Such an intent would not

be consistent with the prevailing practice in international

law."). In this way, the original statute's immunity excep-

tions "prescribe[d] the necessary contacts which must exist

before our courts can exercise personal jurisdiction." H.R.

Rep. No. 94-1487, at 13 (describing the Act's personal jurisdic-

tion provisions as a kind of federal long-arm statute, one

patterned after the District of Columbia's own long-arm law);

see also Jurisdiction of U.S. Courts in Suits against Foreign

States: Hearings Before the Subcommittee on Administra-

tive Law and Governmental Relations of the House Commit-

tee on the Judiciary on H.R. 11315, 94th Cong., 2d Sess. 31

(1976) (statement of Bruno A. Ristau) (noting that this fea-

ture of the bill "will insure that only those disputes which

have a relation to the United States are litigated in the courts

of the United States").

When Congress passed the original FSIA, it was assumed

that the exercise of personal jurisdiction over foreign states

under the statute always would satisfy the demands of the

Constitution. See Joseph W. Glannon & Jeffery Atik, Politics

and Personal Jurisdiction: Suing State Sponsors of Terror-

ism under the 1996 Amendments to the Foreign Sovereign

Immunities Act, 87 Geo. L.J. 675, 681-82 (1999). This as-

sumption proved accurate. See, e.g., Shapiro v. Republic of

Bolivia, 930 F.2d 1013, 1020 (2d Cir. 1991); Callejo v. Ban-

comer, S.A., 764 F.2d 1101, 1107 n.5 (5th Cir. 1985); cf. S & D

David Int'l, Inc. v. Republic of Yemen, 218 F.3d 1292, 1304

(11th Cir. 2000) (noting that "the 'direct effects' language of

s 1605(a)(2) closely resembles the 'minimum contacts' lan-

guage of constitutional due process and these two analyses

have overlapped"). Indeed, as some courts have noted, the

nexus requirements imposed by the original FSIA sometimes

exceeded the constitutional standard. See In re Papandreou,

139 F.3d 247, 253 (D.C. Cir. 1998) ("substantial contact"

required by s 1603(e) requires more than the "minimum

contacts" necessary to ensure due process).

The antiterrorism amendments changed this statutory

framework. Under s 1605(a)(7), the only required link be-

tween the defendant nation and the territory of the United

States is the nationality of the claimant. Thus, s 1605(a)(7)

now allows personal jurisdiction to be maintained over defen-

dants in circumstances that do not appear to satisfy the

"minimum contacts" requirement of the Due Process Clause.

See Caplan, supra, at 408 ("Under its plain terms, the new

law extends extraterritoriality much further than the tradi-

tional reach of the International Shoe [Co. v. Washington,

326 U.S. 310 (1945)] standard.").

C. Challenges to the Factual Underpinnings of an FSIA

Complaint

Before we turn to the due process issue, as well as to the

antecedent question of whether plaintiffs have stated valid

claims under s 1605(a) for hostage taking and torture, we

must first address a separate argument that Libya has ad-

vanced on appeal. Libya contends that the District Court

erred in assuming the truth of the factual allegations in

plaintiffs' complaint for purposes of determining whether it

had subject matter jurisdiction. Appellant correctly points

out that in Phoenix Consulting, Inc. v. Republic of Angola,

216 F.3d 36, 40 (D.C. Cir. 2000), we held that when a foreign

state defendant raises "a dispute over the factual basis of the

court's subject matter jurisdiction under the FSIA," the trial

court is required to "go beyond the pleadings and resolve any

disputed issues of fact the resolution of which is necessary to

a ruling upon the motion to dismiss."

Libya now claims that it did not engage in the actions

described in plaintiffs' complaint. Thus, it contends that we

must reverse the District Court's finding of subject matter

jurisdiction and remand for further fact-finding on that issue.

See Foremost-McKesson, Inc. v. Islamic Republic of Iran,

905 F.2d 438, 448-49 (D.C. Cir. 1990) (holding that where the

"conclusory allegations" in a plaintiff's complaint are chal-

lenged by a sovereign defendant, "the district court must do

more than just look to the pleadings to ascertain whether to

grant the motion to dismiss"). We reject this argument.

In its original motion to dismiss, Libya specifically stated

that, for purposes of that pleading, it was not challenging "the

well-pleaded facts in the complaint." Def.'s Mot. to Dismiss,

at 2 (Jan. 21, 1998). When it renewed this motion, Libya still

did not challenge the factual basis of plaintiffs' allegations.

Instead, it wrote that, "[e]ven viewed in the light most

favorable to the plaintiffs, the facts alleged in the complaint

do not establish 'acts of torture' by Libya." Def.'s Mot. to

Dismiss, at 26 (Feb. 9, 2000). The District Court then

properly "[took] the plaintiff's factual allegations as true and

determine[d] whether they [brought] the case within any of

the exceptions to immunity invoked by the plaintiff." Phoe-

nix Consulting, 216 F.3d at 40. It now falls to this court to

review this determination, which we do de novo. See McKes-

son HBOC, 271 F.3d at 1105.

D. Appellate Jurisdiction

Price and Frey claim that we lack jurisdiction over Libya's

appeal, because the denial of a motion to dismiss for failure to

state a claim is neither a "final decision," see 28 U.S.C.

s 1291, nor the proper subject of an immediate appeal under

the "collateral order" doctrine, see Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949); Coopers & Lyband v.

Livesay, 437 U.S. 463 (1978). These propositions are gener-

ally correct; however, insofar as the instant appeal addresses

the denial of Libya's motion to dismiss on grounds of foreign

sovereign immunity, that question is immediately appealable.

See Princz v. Federal Republic of Germany, 998 F.2d 1, 1

(D.C. Cir. 1993); Foremost-McKesson, 905 F.2d at 443 (ob-

serving that sovereign immunity confers not merely a defense

against liability but a right not to be tried). Thus, an FSIA

defendant can take an immediate appeal if the District Court

rejects its argument that the facts alleged in the plaintiff's

complaint do not bring the case within one of the statute's

immunity exceptions.

This is in substance what Libya argued below, and what it

now asserts on appeal. See Br. for Appellant 24 ("The fact

that Price & Frey received a trial and were acquitted and

subsequently released, must deprive the district court of

subject matter jurisdiction as their confinement cannot be

considered an act of hostage taking under s 1605(a)(7).")

(emphasis added). In other words, the basis for Libya's

motion to dismiss and for this appeal was that plaintiffs had

not set forth an adequate factual basis for applying the

FSIA's torture and hostage taking exceptions. It follows

therefore that we have jurisdiction to review this challenge at

this time.

E. Torture

The FSIA's definition of torture derives from the meaning

given that term in section 3 of the Torture Victim Protection

Act of 1991 ("TVPA"), Pub. L. No. 102-256, 106 Stat. 73 (Mar.

12, 1992), codified at 28 U.S.C. s 1350 (note). See 28 U.S.C.

s 1605(e)(1). Section 3(b)(1) of the TVPA defines "torture"

to include

any act, directed against an individual in the offender's

custody or physical control, by which severe pain or

suffering (other than pain or suffering arising only from

or inherent in, or incidental to, lawful sanctions), whether

physical or mental, is intentionally inflicted on that indi-

vidual for such purposes as obtaining from that individual

or a third person information or a confession, punishing

that individual for an act that individual or a third person

has committed or is suspected of having committed,

intimidating or coercing that individual or a third person,

or for any reason based on discrimination of any kind.

(Emphases added). This definition, in turn, borrows exten-

sively from the 1984 United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess.,

Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) ("Torture

Convention"), which the United States signed in 1988 and

ratified two years later. See H.R. Rep. No. 102-367, Part 1, at

4-5 (1991). Indeed, the TVPA was passed in part to fulfill the

Convention's mandate that ratifying nations take action to

ensure that torturers are held legally accountable for their

actions. See S. Rep. No. 102-249, at 3 (1991).

While the legislative history of AEDPA gives no indication

as to how broadly the definition of torture was intended to

sweep, Congress considered this question both in ratifying

the Torture Convention and in enacting the TVPA. See Beth

Stephens & Michael Ratner, International Human Rights

Litigation in U.S. Courts 64 & n.4 (1996). Specifically, the

drafting histories of both the Convention and the statute

address two ambiguities lurking in that definition that must

be confronted as we consider whether Price and Frey have

alleged facts sufficient to bring this case within the FSIA's

definition of torture. The first concerns the meaning of

"severe": how much actual pain or suffering must defendants

inflict before their conduct rises to the level of torture? The

second involves the "for such purposes" language: what must

plaintiffs prove about the motivation for the alleged torture if

they hope to deprive foreign states of their immunity?

The severity requirement is crucial to ensuring that the

conduct proscribed by the Convention and the TVPA is

sufficiently extreme and outrageous to warrant the universal

condemnation that the term "torture" both connotes and

invokes. See David P. Stewart, The Torture Convention and

the Reception of International Criminal Law Within the

United States, 15 Nova L. Rev. 449, 455 (1991) (noting that

what the Convention forbade was likely already illegal under

most domestic legal systems); Filartiga v. Pena-Irala, 630

F.2d 876, 890 (2d Cir. 1980) ("Among the rights universally

proclaimed by all nations ... is the right to be free of

physical torture."); S. Rep. No. 102-249, at 3 ("Official torture

... violate[s] standards accepted by virtually every nation.").

The drafters of the Convention, as well as the Reagan Admin-

istration that signed it, the Bush Administration that submit-

ted it to Congress, and the Senate that ultimately ratified it,

therefore all sought to ensure that "only acts of a certain

gravity shall be considered to constitute torture." J. Herman

Burgers & Hans Danelius, The United Nations Convention

against Torture 117 (1988); see also S. Exec. Rep. No. 101-30,

at 14 (1990) ("The term 'torture,' in the United States and

international usage, is usually reserved for extreme, deliber-

ate and unusually cruel practices, for example, sustained

systematic beating, application of electric currents to sensi-

tive parts of the body, and tying up or hanging in positions

that cause extreme pain.").

The critical issue is the degree of pain and suffering that

the alleged torturer intended to, and actually did, inflict upon

the victim. The more intense, lasting, or heinous the agony,

the more likely it is to be torture. See S. Exec. Rep. No. 101-

30, at 15 ("The United States understands that, in order to

constitute torture, an act must be a deliberate and calculated

act of an extremely cruel and inhuman nature, specifically

intended to inflict excruciating and agonizing physical or

mental pain or suffering.") (internal quotation marks omit-

ted). This understanding thus makes clear that torture does

not automatically result whenever individuals in official custo-

dy are subjected even to direct physical assault. Not all

police brutality, not every instance of excessive force used

against prisoners, is torture under the FSIA.

As to the purposes for which abuse must be inflicted, it is

clear from the text of the TVPA that the list of purposes

provided was not meant to be exhaustive. See Murphy,

supra, at 27. Instead, this list was included in order to

reinforce that torture requires acts both intentional and mali-

cious, and to illustrate the common motivations that cause

individuals to engage in torture. See S. Exec. Rep. No. 101-30,

at 14. The "for such purposes" language thus suggests that

any non-enumerated purpose would have to be similar in

nature to those mentioned in order to elevate an act of

violence into an act of torture. See Burgers & Danelius 118-

19 (suggesting that there must be some, even if remote,

connection with the interests or policies of the State). More-

over, this requirement ensures that, whatever its specific

goal, torture can occur under the FSIA only when the pro-

duction of pain is purposive, and not merely haphazard. In

order to lose its sovereign immunity, a foreign state must

impose suffering cruelly and deliberately, rather than as the

unforeseen or unavoidable incident of some legitimate end.

When reviewing a plaintiff's unchallenged factual allega-

tions to determine whether they are sufficient to deprive a

foreign state defendant of sovereign immunity, we assume

those allegations to be true. Foremost-McKesson, 905 F.2d

at 440 n.3. Thus, where the defendant contests only the legal

sufficiency of plaintiff's jurisdictional claims, the standard is

similar to that of Rule 12(b)(6), under which dismissal is

warranted if no plausible inferences can be drawn from the

facts alleged that, if proven, would provide grounds for relief.

See Browning v. Clinton, No. 01-5050, slip op. at 5-6 (D.C.

Cir. June 11, 2002). A claimant need not set out all of the

precise facts on which the claim is based in order to survive a

motion to dismiss. Sinclair v. Kleindienst, 711 F.2d 291, 293

(D.C. Cir. 1983). However, in light of the serious and far-

reaching implications of the 1996 FSIA amendments, it is

especially important for the courts to ensure that foreign

states are not stripped of their sovereign immunity unless

they have been charged with actual torture, and not mere

police brutality.

In this case, plaintiffs' complaint offers no useful details

about the nature of the kicking, clubbing, and beatings that

plaintiffs allegedly suffered. As a result, there is no way to

determine from the present complaint the severity of plain-

tiffs' alleged beatings - including their frequency, duration,

the parts of the body at which they were aimed, and the

weapons used to carry them out - in order to ensure that

they satisfy the TVPA's rigorous definition of torture. In

short, there is no way to discern whether plaintiffs' complaint

merely alleges police brutality that falls short of torture.

Thus, the facts pleaded do not reasonably support a finding

that the physical abuse allegedly inflicted by Libya evinced

the degree of cruelty necessary to reach a level of torture.

Furthermore, the present complaint says virtually nothing

about the purpose of the alleged torture. Plaintiffs seemingly

have left it for the courts to conjure some illicit purpose to fill

in this pleading gap. Obviously this will not do.

In sum, plaintiffs' allegations of torture as presently stated

are insufficient to survive defendant's motion to dismiss.

Plaintiffs must allege more than that they were abused.

They must demonstrate in their pleadings that Libya's con-

duct rose to such a level of depravity and caused them such

intense pain and suffering as to be properly classified as

torture. Although it is far from certain, their complaint hints

that they might be able to state a proper claim for torture

under the FSIA. Accordingly, we will remand the case to the

District Court to allow plaintiffs to attempt to amend their

complaint in an effort to satisfy TVPA's stringent definition of

torture.

F. Hostage Taking

As with torture, the FSIA draws its definition of "hostage

taking" from an exogenous legal source, here article 1 of the

International Convention Against the Taking of Hostages.

See 28 U.S.C. s 1605(e)(2). This provision reads as follows:

Any person who seizes or detains and threatens to kill, to

injure or to continue to detain another person in order to

compel a third party, namely, a State, an international

governmental organization, a natural or judicial person

or a group of persons, to do or abstain from doing any

act as an explicit or implicit condition for the release of

the hostage commits the offense of taking hostages within

the meaning of the Convention.

(Emphases added). Under no reasonable reading of the

plaintiffs' complaint does their admittedly unpleasant impris-

onment qualify as hostage taking so defined.

The Convention does not proscribe all detentions, but in-

stead focuses on the intended purpose of the detention. In

this case, the complaint asserts only that Libya incarcerated

Price and Frey "for the purpose of demonstrating Defen-

dant's support of the government of Iran which held hostages

in the U.S. Embassy in Tehran, Iran." Compl., at p 7. Such

motivation does not satisfy the Convention's intentionality

requirement. The definition speaks in terms of conditions of

release; the defendant must have detained the victim in order

to compel some particular result, specifically to force a third

party either to perform an act otherwise unplanned or to

abstain from one otherwise contemplated so as to ensure the

freedom of the detainee. Accordingly, detention for the goal

of expressing support for illegal behavior - even for behavior

that would itself qualify as "hostage taking" - does not

constitute the taking of hostages within the meaning of the

FSIA.

In this case, the plaintiffs have suggested no demand for

quid pro quo terms between the government of Libya and a

third party whereby Price and Frey would have been re-

leased upon the performance or non-performance of any

action by that third party. Indeed, even when read most

favorably to them, their complaint points to no nexus between

what happened to them in Libya and any concrete concession

that Libya may have hoped to extract from the outside world.

The one purpose that plaintiffs have alleged is plainly inade-

quate, and they have advanced no others. Their allegation

thus falls short of the standard for hostage taking under

s 1605(a)(7).

For these reasons, Libya cannot be stripped of its sover-

eign immunity based on plaintiffs' allegation of hostage tak-

ing. The District Court thus erred in refusing to dismiss this

count. Accordingly, we reverse on this point.

G. Personal Jurisdiction

The last question that we face is whether the Due Process

Clause is offended by the District Court's assertion of person-

al jurisdiction over Libya. If, on remand, plaintiffs can state

a claim of torture under s 1605(a)(7) sufficient to survive a

motion to dismiss, and if they have properly served process

on the defendant, personal jurisdiction will be established

under the FSIA. See 28 U.S.C. s 1330(b); Practical Con-

cepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1548 n.11

(D.C. Cir. 1987) (noting that under the FSIA, "subject matter

jurisdiction plus service of process equals personal jurisdic-

tion"). However, it is well-settled that "a statute cannot

grant personal jurisdiction where the Constitution forbids it."

Gilson v. Republic of Ireland, 682 F.2d 1022, 1028 (D.C. Cir.

1982).

The Due Process Clause requires that if the defendant "be

not present within the territory of the forum, he have certain

minimum contacts with it such that the maintenance of the

suit does not offend 'traditional notions of fair play and

substantial justice.' " Int'l Shoe, 326 U.S. at 316 (quoting

Milliken v. Meyer, 311 U.S. 457, 463 (1940)). In the absence

of such contacts, the liberty interest protected by the Due

Process Clause shields the defendant from the burden of

litigating in that forum. See Burger King Corp. v. Rudzew-

icz, 471 U.S. 462, 471-72 (1985). Libya argues that foreign

states, no less than private individuals and corporations, are

protected by these constitutional strictures.

In the present case, it is undisputed that Libya has no

connection with the District of Columbia or with the United

States, except for the alleged fact that it tortured two Ameri-

can citizens in Libya. This would be insufficient to satisfy the

usual "minimum contacts" requirement. See, e.g., IMO In-

dus., Inc. v. Kiekert AG, 155 F.3d 254, 265-66 (3d Cir. 1998)

(holding that minimum contacts do not exist in an intentional

tort case unless the defendant "expressly aimed its tortious

conduct at the forum"; the mere fact that the harm caused by

the defendant was primarily felt in the forum because the

plaintiff resided there is not enough); Wallace v. Herron, 778

F.2d 391, 394-95 (7th Cir. 1985) (rejecting the suggestion that

"any plaintiff may hale any defendant into court in the

plaintiff's home state, where the defendant has no contacts,

merely by asserting that the defendant has committed an

intentional tort against the plaintiff"). Therefore, Libya ar-

gues, the Fifth Amendment precludes the exercise of personal

jurisdiction in this case.

Implicit in Libya's argument is the claim that a foreign

state is a "person" within the meaning of the Due Process

Clause. See U.S. Const. amend. V ("nor shall any person ...

be deprived of life, liberty, or property, without due process

of law"). In previous cases, we have proceeded as if this

proposition were true, but we have never so held. See, e.g.,

Gilson, 682 F.2d at 1028 (finding that Ireland had sufficient

contacts with the United States to allow for personal jurisdic-

tion without specifically addressing whether it was a person

protected by the Fifth Amendment); Foremost-McKesson,

905 F.2d at 442 n.10 (noting, in a case against Iran, the Fifth

Amendment's minimum contacts requirements, but ultimately

finding that the defendant had waived any such constitutional

defense to personal jurisdiction).

Moreover, both the Supreme Court and this court have

expressly indicated that the constitutional issue remains an

open one. See Republic of Argentina v. Weltover, Inc., 504

U.S. 607, 619 (1992) (assuming without deciding that a foreign

state is a person for purposes of the Due Process Clause);

Creighton Ltd. v. Gov't of Qatar, 181 F.3d 118, 124-25 (D.C.

Cir. 1999) (noting that the view that foreign states are

entitled to constitutional due process is merely an "unchal-

lenged assumption"). Now, however, this assumption has

been challenged. And, with the issue directly before us, we

hold that foreign states are not "persons" protected by the

Fifth Amendment.

Our conclusion is based on a number of considerations.

First, as the Supreme Court noted in Will v. Michigan

Department of State Police, there is an "often-expressed

understanding that 'in common usage, the term "person" does

not include the sovereign, and statutes employing the word

are ordinarily construed to exclude it.' " 491 U.S. 58, 64

(1989) (quoting Wilson v. Omaha Indian Tribe, 442 U.S. 653,

667 (1979)). In the context of a specific statute, "person" may

be given a broader meaning. Compare Will, 491 U.S. at 71

(holding that a State is not a "person" within the meaning of

42 U.S.C. s 1983), and Breard v. Greene, 523 U.S. 371, 378

(1998) (holding that a foreign state is not a "person" entitled

to bring suit under s 1983), with Pfizer v. Government of

India, 434 U.S. 308, 320 (1978) (holding that a foreign state is

a "person" entitled to sue under the federal antitrust laws).

In this case, however, what is at issue is the meaning of the

Due Process Clause, not a statutory provision. And, on this

score, it is highly significant that in South Carolina v. Kat-

zenbach, 383 U.S. 301, 323-24 (1966), the Court was unequivo-

cal in holding that "the word 'person' in the context of the

Due Process Clause of the Fifth Amendment cannot, by any

reasonable mode of interpretation, be expanded to encompass

the States of the Union." Therefore, absent some compelling

reason to treat foreign sovereigns more favorably than

"States of the Union," it would make no sense to view foreign

states as "persons" under the Due Process Clause.

Indeed, we think it would be highly incongruous to afford

greater Fifth Amendment rights to foreign nations, who are

entirely alien to our constitutional system, than are afforded

to the states, who help make up the very fabric of that

system. The States are integral and active participants in

the Constitution's infrastructure, and they both derive impor-

tant benefits and must abide by significant limitations as a

consequence of their participation. Compare U.S. Const. art.

IV s 4 ("The United States shall guarantee to every State in

this Union a Republican form of Government, and shall

protect each of them against Invasion;"), with id. at art. VI,

cl. 2 ("This Constitution ... shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Law of the State to the

Contrary notwithstanding."), and id. at art. 1 s 10 (listing

specific acts prohibited to the States). However, a "foreign

State lies outside the structure of the Union." Principality

of Monaco v. Mississippi, 292 U.S. 313, 330 (1934). Given

this fundamental dichotomy between the constitutional status

of foreign states and States within the United States, we

cannot perceive why the former should be permitted to avail

themselves of the fundamental safeguards of the Due Process

Clause if the latter may not.

It is especially significant that the Constitution does not

limit foreign states, as it does the States of the Union, in the

power they can exert against the United States or its govern-

ment. Indeed, the federal government cannot invoke the

Constitution, save possibly to declare war, to prevent a for-

eign nation from taking action adverse to the interest of the

United States or to compel it to take action favorable to the

United States. It would therefore be quite strange to inter-

pret the Due Process Clause as conferring upon Libya rights

and protections against the power of federal government.

In addition to text and structure, history and tradition

support our conclusion. Never has the Supreme Court sug-

gested that foreign nations enjoy rights derived from the

Constitution, or that they can use such rights to shield

themselves from adverse actions taken by the United States.

This is not surprising. Relations between nations in the

international community are seldom governed by the domes-

tic law of one state or the other. See Lori Fisler Damrosch,

Foreign States and the Constitution, 73 Va. L. Rev. 483, 520

(1987) ("The most a foreign state can demand is that other

states observe international law, not that they enforce provi-

sions of domestic law."). And legal disputes between the

United States and foreign governments are not mediated

through the Constitution. See Nat'l Council of Resistance of

Iran v. Dep't of State, 251 F.3d 192, 202 (D.C. Cir. 2001)

(recognizing that "sovereign states interact with each other

through diplomacy and even coercion in ways not affected by

constitutional protections such as the Due Process Clause").

Rather, the federal judiciary has relied on principles of

comity and international law to protect foreign governments

in the American legal system. This approach recognizes the

reality that foreign nations are external to the constitutional

compact, and it preserves the flexibility and discretion of the

political branches in conducting this country's relations with

other nations. See Damrosch, supra, at 521 (describing the

ways in which "the recognition that foreign states and the

United States interact as juridical equals on the level of

international law and diplomacy outside the constitutional

system, with rights and duties on the international plane not

deriving from the Constitution, has shaped the Supreme

Court's approach to various problems of domestic law");

Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (mat-

ters such as the conduct of foreign relations are "so exclusive-

ly entrusted to the political branches of government as to be

largely immune from judicial inquiry or interference").

An example of this approach is seen with respect to the

right of access to the courts. Private individuals have "a

constitutional right of access to the courts," Bounds v. Smith,

430 U.S. 817, 821 (1977), that is, the "right to sue and defend

in the courts," Chambers v. Baltimore & Ohio R.R., 207 U.S.

142, 148 (1907). See also Wolff v. McDonnell, 418 U.S. 539,

579 (1974) (holding that this right derives from the Due

Process Clause). Foreign states also have been afforded the

right to use the courts of the United States to prosecute civil

claims "upon the same basis as a domestic corporation or

individual might do." Pfizer, 434 U.S. at 318-19; see also

Principality of Monaco, 292 U.S. at 323 n.2 ("There is no

question but that foreign States may sue private parties in

the federal courts."). But the right of access enjoyed by

foreign nations derives from "principles of comity," and it is

"neither a matter of absolute obligation, on the one hand, nor

of mere courtesy and good will, upon the other." Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-09 (1964)

(quoting Hilton v. Guyot, 159 U.S. 113, 164-65 (1895)). This

privilege is not to be denied lightly, because to do so "would

manifest a want of comity and friendly feeling." The Sap-

phire, 78 U.S. (11 Wall.) 164, 167 (1870). Nonetheless, for-

eign nations do not have a constitutional right of access to

the courts of the United States. Indeed, only nations recog-

nized by and at peace with the United States may avail

themselves of our courts, and "it is within the exclusive power

of the Executive Branch to determine which nations are

entitled to sue." Pfizer, 434 U.S. at 319-20 (noting that the

rule is one of "complete judicial deference to the Executive

Branch").

While we recognize that the present case implicates not the

right of affirmative access to the courts, but rather its

reverse - the right not to be haled into court - this does not

change the analysis under the Due Process Clause. The

personal jurisdiction requirement is not a structural limitation

on the power of courts. Rather, "[t]he personal jurisdiction

requirement recognizes and protects an individual liberty

interest. It represents a restriction on judicial power not as

a matter of sovereignty, but as a matter of individual liberty."

Ins. Corp. of Ire. v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702 (1982). This makes sense, because "[t]he

requirement that a court have personal jurisdiction flows not

from Art. III, but from the Due Process Clause." Id. And

the "core of the concept" of due process is "to secure the

individual from the arbitrary exercise of the powers of gov-

ernment, unrestrained by the established principles of private

right and distributive justice." County of Sacramento v.

Lewis, 523 U.S. 833, 845-46 (1998). It is thus quite clear that

the constitutional law of personal jurisdiction secures inter-

ests quite different from those at stake when a sovereign

nation such as Libya seeks to defend itself against the

prerogatives of a rival government. It therefore follows that

foreign states stand on a fundamentally different footing than

do private litigants who are compelled to defend themselves

in American courts.

Unlike private entities, foreign nations are the juridical

equals of the government that seeks to assert jurisdiction

over them. See Damrosch, supra, at 519-20 & n.150

("Foreign states exist within the United States as coequal

sovereigns on the international plane. International law

recognizes the juridical equality of each member of the in-

ternational community, and establishes for all states a ser-

ies of rights and duties flowing from this principle."). If

they believe that they have suffered harm by virtue of

being haled into court in the United States, foreign states

have available to them a panoply of mechanisms in the in-

ternational arena through which to seek vindication or re-

dress. Id. at 525. These mechanisms, not the Constitution,

set the terms by which sovereigns relate to one another.

We would break with the norms of international law and

the structure of domestic law were we to extend a consti-

tutional rule meant to protect individual liberty so as to

frustrate the United States government's clear statutory

command that Libya be subject to the jurisdiction of the

federal courts in the circumstances of this case. The con-

stitutional limits that have been placed on the exercise of

personal jurisdiction do not limit the prerogative of our

nation to authorize legal action against another sovereign.

Conferring on Libya the due process trump that it seeks

against the authority of the United States is thus not only

textually and structurally unsound, but it would distort the

very notion of "liberty" that underlies the Due Process

Clause.

The distinction between privileges conferred on foreign

states without reference to the Constitution and correspond-

ing rights enjoyed by other entities because of the Constitu-

tion extends to sovereign immunity itself. The Supreme

Court has made clear that Congress lacks the power under

Article I to abrogate the sovereign immunity of the States of

the Union. Alden v. Maine, 527 U.S. 706, 712 (1999); Semi-

nole Tribe of Fl. v. Florida, 517 U.S. 44, 72-73 (1996). Such

immunity from suit, if not created by the Constitution, see

Blatchford v. Native Village of Noatak, 501 U.S. 775, 779

(1991), is at least protected by it. Thus, the national govern-

ment is prevented from undoing this immunity except under

limited and unusual circumstances. See, e.g., Bd. of Trustees

of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001). In contrast,

however, nothing in the Constitution limits congressional

authority to modify or remove the sovereign immunity that

foreign states otherwise enjoy. Instead, like the right of

access to courts, such immunity is "a matter of grace and

comity on the part of the United States, and not a restriction

imposed by the Constitution." Verlinden, 461 U.S. at 486.

In short, we are unwilling to interpret the Due Process

Clause as conferring rights on foreign nations that States of

the Union do not possess. Neither the text of the Constitu-

tion, Supreme Court decisions construing the Due Process

Clause, nor long standing tradition provide a basis for extend-

ing the reach of this constitutional provision for the benefit of

foreign states.

Finally, it is worth noting that serious practical problems

might arise were we to hold that foreign states may cloak

themselves in the protections of the Due Process Clause.

For example, the power of Congress and the President to

freeze the assets of foreign nations, or to impose economic

sanctions on them, could be challenged as deprivations of

property without due process of law. The courts would be

called upon to adjudicate these sensitive questions, which in

turn could tie the hands of the other branches as they sought

to respond to foreign policy crises. The Constitution does not

command this. See Regan v. Wald, 468 U.S. 222, 242 (1984);

DKT Mem'l Fund Ltd. v. Agency for Int'l Dev., 887 F.2d 275,

291 (D.C. Cir. 1989) (describing the need for the nation to

speak with "a single voice" in foreign affairs); People's Moja-

hedin Org. of Iran v. Dep't of State, 182 F.3d 17, 22 (D.C. Cir.

1999) ("No one would suppose that a foreign nation had a due

process right to notice and a hearing before the Executive

imposed an embargo on it for the purpose of coercing a

change in policy.").

In sum, we hold that the Fifth Amendment poses no

obstacle to the decision of the United States government to

subject Libya to personal jurisdiction in the federal courts.

Our decision on this point reaches only an actual foreign

government; we express no view as to whether other entities

that fall within the FSIA's definition of "foreign state" -

including corporations in which a foreign state owns a majori-

ty interest, see 28 U.S.C. s 1603(b) - could yet be considered

persons under the Due Process Clause. We also note that

the unavailability of constitutional due process protections will

not render foreign states helpless when sued in the United

States, for the doctrine of forum non conveniens remains

fully applicable in FSIA cases. See Verlinden, 461 U.S. at

490 n.15; Proyecfin de Venezuela, S.A. v. Banco Industrial

de Venezuela, S.A., 760 F.2d 390, 394 (2d Cir. 1985) (suggest-

ing that the forum non conveniens doctrine helps mitigate

the concern that "United States courts will become the courts

of choice for local disputes between foreign plaintiffs and

foreign sovereign defendants and thus be reduced to interna-

tional courts of claims") (internal quotation marks omitted).

III. Conclusion

For the reasons given above, we reverse in part and

remand the case to the District Court for further proceedings

consistent with this opinion.