United States District Court, District of Columbia
May 30, 2003
DEBORAH D. PETERSON, PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES C. KNIPPLE, ET AL., PLAINTIFFS
THE ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS. JOSEPH AND MARIE BOULOS, PERSONAL REPRESENTATIVES OF THE ESTATE OF JEFFREY JOSEPH BOULOS, ET AL., PLAINTIFFS V. THE ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Royce Lamberth, District Judge
These actions arise from the most deadly state-sponsored terrorist attack made against American citizens prior to September 11, 2001: the Marine barracks bombing in Beirut, Lebanon on October 23, 1983. In the early morning hours of that day, 241 American servicemen were murdered in their sleep by a suicide bomber. On that day, an unspeakable horror invaded the lives of those who survived the attack and the family members whose loved ones had been stolen from them. The memory of that horror continues to this day.
On March 17-18, 2003, this Court conducted a bench trial to determine the liability of the defendants for this inhuman act. Having reviewed the extensive evidence presented during that trial by both lay and expert witnesses, the Court has determined that the plaintiffs have established their right to obtain judicial relief against the defendants. The Court's findings of fact and conclusions of law are set forth below.
I. PROCEDURAL BACKGROUND
The plaintiffs in these two actions are family members of the 241 deceased servicemen (hereafter, "the servicemen") and the injured survivors of the attack. Plaintiffs have brought these actions in their own right, as administrators of the estates of the servicemen, and on behalf of the servicemen's heirs-at-law. All decedents and injured survivors of the attack were serving in the U.S. armed forces at the time of their injuries or death. All plaintiffs are nationals of the United States.*fn1
On October 3 and December 28, 2001, plaintiffs filed separate complaints with this Court. The complaints included statutory claims for wrongful death and common-law claims for battery, assault, and intentional infliction of emotional distress, all resulting from an act of state-sponsored terrorism. Plaintiffs sought relief in the form of compensatory and punitive damages. Although defendants were served with the two complaints on May 6 and July 17, 2002, defendants failed to file any response to either complaint, and on December 18, 2002, this Court entered defaults against defendants in both cases.
However, despite the entries of default, this Court is required to make a further inquiry prior to entering any judgment against defendants. FSIA mandates that a default judgment against a foreign state be entered only after a plaintiff "establishes his claim or right to relief by evidence that is satisfactory to the Court." 28 U.S.C. § 1608(e); see also Flatow v. The Islamic Republic of Iran, 999 F. Supp. 1, 6 (D.D.C. 1998). As in Flatow, the Court will require plaintiffs to establish their right to relief by clear and convincing evidence. The "clear and convincing" standard of proof is the standard required in the District of Columbia to support a claim for punitive damages, and is sufficient to establish a prima facie case in a contested proceeding.
II. FINDINGS OF FACT
As stated above, this Court received testimony from plaintiffs on March 17 and 18, 2003, defendants having failed to enter an appearance. The Court now enters its findings of fact, based upon the sworn testimony and documentary evidence presented during the March trial, and received in accordance with the Federal Rules of Evidence. This Court finds these facts to be established by clear and convincing evidence.
A. Historical Background*fn2
The Republic of Lebanon is a mountainous country of approximately 3,800,000 people bordered by Israel, Syria, and the eastern shore of the Mediterranean Sea. Although it contains some of the oldest human settlements in the world, including the Phoenician port cities of Tyre and Sidon, it did not become an independent nation until 1944.
Lebanon did not participate militarily in the 1967 and 1973 Arab-Israeli wars. However, by 1973, approximately one out of every ten person living in Lebanon was a Palestinian refugee, many of whom supported the efforts of the Palestine Liberation Organization (PLO) against Israel. Some of these refugees engaged in guerilla warfare and terrorist activity against Israel from bases established in southern Lebanon. Beginning in 1968, Israel engaged in reprisals against these Palestinian strongholds in southern Lebanon. In 1975, civil war broke out in Lebanon between its Muslim inhabitants and Palestinian refugees, who supported the PLO, and its Christian inhabitants, who opposed the PLO's actions. The war would not come to a complete end for another fifteen years, during which approximately twenty thousand Lebanese were killed, and approximately the same number of Lebanese were wounded.
B. The Arrival of the 24th Marine Amphibious Unit
In late 1982, with the concurrence of the United Nations, a multinational peacekeeping coalition consisting of American, British, French, and Italian soldiers arrived in the Lebanese capital of Beirut. In May of 1983, the 24th Marine Amphibious Unit of the U.S. Marines ("the 24th MAU") joined this coalition.*fn3 The rules of engagement issued to the servicemen of the 24th MAU made clear that the servicemen possessed neither combatant nor police powers. In fact, under the rules, the servicemen were ordered not to carry weapons with live rounds in their chambers, and were not authorized to chamber the rounds in their weapons unless (1) they were directly ordered to do so by a commissioned officer or (2) they found themselves in a situation requiring the immediate use of deadly force in self-defense.*fn4 As pointed out during trial, the members of the 24th MAU were more restricted in their use of force than an ordinary U.S. citizen walking down a street in Washington, D.C.
The restrictive rules of engagement are consistent with the testimony of Col. Timothy Geraghty, the commander of the 24th MAU, about the mission of the multinational peacekeeping force:
[E]ssentially what it was, it was primarily a
peacekeeping mission and it was to show [our]
presence, and when I say ours, and this is throughout
all the forces, is that we were out showing a
presence, [primarily] to provide stability to the
area. And I might add that there's no doubt in just
about anyone involved at the time, we saved a lot of
lives by our presence there for awhile. And that was
part of, I might add, in my judgment, the success of
that, our presence mission there, and [that] it was
working is the primary reason why we were
targeted. . . .
The rules — these were geared primarily again
with the peacekeeping mission [in mind] and the
sensitivities of killing or maiming someone
accidentally. That could be a tinderbox. That could
start a whole chain of events.
Col. Geraghty further testified that the location and security of the 24th MAU's position was not tactical in nature, and was only acceptable to the commanding officer in the context of the unit's mission to "provide a presence."
Based on the testimony of Col. Geraghty and other witnesses, the Court finds that on October 23, 1983, the members of the 24th MAU, and the service members supporting the unit, were clearly non-combatants operating under peacetime rules of engagement.*fn5
C. The Iranian Government and the October 23 Attack*fn6
Following the 1979 revolution spearheaded by the Ayatollah Ruhollah Khomeini, the nation of Iran was transformed into an Islamic theocracy. The new government promptly drafted a constitution, which is still in effect today. The preamble to the 1979 constitution sets forth the mission of the post-revolutionary Iranian state:
The mission of the Constitution is to realize the
ideological objectives of the movement and to create
conditions conducive to the development of man in
accordance with the noble and universal values of
With due attention to the Islamic content of the
Iranian Revolution, the Constitution provides the
necessary basis for ensuring the continuation of the
Revolution at home and abroad. In particular, in the
development of international relations, the
Constitution will strive with other Islamic and
popular movements to prepare the way for the formation
of a single world community . . . to assure the
continuation of the struggle for the liberation of all
deprived and oppressed peoples in the world.
The post-revolutionary government in Iran thus declared its commitment to spread the goals of the 1979 revolution to other nations. Towards that end, between 1983 and 1988, the government of Iran spent approximately $50 to $150 million financing terrorist organizations in the Near East.*fn7 One of the nations to which the Iranian government directed its attention was the war-torn republic of Lebanon.
"Hezbollah" is an Arabic word meaning "the party of God." It is also the name of a group of Shi'ite Muslims in Lebanon that was formed under the auspices of the government of Iran. Hezbollah began its existence as a faction within a group of moderate Lebanese Shi'ites known as Amal. Following the 1982 Israeli invasion of Lebanon, the Iranian government sought to radicalize the Lebanese Shi'ite community, and encouraged Hezbollah to split from Amal. Having established the existence of Hezbollah as a separate entity, the government of Iran framed the primary objective of Hezbollah: to engage in terrorist activities in furtherance of the transformation of Lebanon into an Islamic theocracy modeled after Iran.
During the March trial in these cases, Dr. Patrick Clawson, a widely-renowned expert on Iranian affairs over the past 25 years, testified that in 1983, Hezbollah was a creature of the Iranian government:
Both from the accounts of Hezbollah members and from
the accounts of the Iranians and of every academic
study that I'm aware of, certainly at this time,
Hezbollah is largely under Iranian orders. It's almost
entirely acting at the — under the order of the
Iranians and being financed almost entirely by the
Iranians. It comes to be an organization with Lebanese
roots and Lebanese activities and more independence
from Iran, but that's years past this time frame.
THE COURT: In the '83 time frame, it was essentially
a tool of Iran.
THE WITNESS: Correct, sir. Indeed, both Iranian and
Lebanese observers have described it as
being established at Iran's orders and as
being a creature of Iran when it began.
Hezbollah leaders today will sometimes
describe that as the roots of their party
and say that it has evolved away from
Q: Was there any other major means of support for
Hezbollah other than the Islamic Republic of Iran?
A: Not at this time, no, sir.*fn8
Dr. Clawson's testimony was corroborated by Dr. Reuven Paz,*fn9 who
has researched Islamist terrorist groups for the last 25 years:
Q: Now, as of the time of this attack, in October
1983, to what extent was Hezbollah, at that precise
moment, dependent upon the support of Iran, and
particularly the Iranian Revolutionary Guards, who
had been brought in in order to carry out any type
of major [military] operation?
A: Well, I would say that they were, at that time,
totally relied upon, the Iranian support. We are
talking about composing a new group, of Hezbollah,
out of people who had very little military
experience. They were members, before '82, in
groups that actually did not deal with military
issues or terrorism. And most of the members during
this process of unification that created Hezbollah
started to be trained in training camps in the
Bekaa Valley, where the main Iranian forces were
Q: Do you have an opinion, within a reasonable degree
of certainty, as an expert on Islamist terrorism,
whether this attack was carried out by Hezbollah,
in response to the order which was the subject of
the communications intercept in late September
A: Yes, especially at that time — even today,
but especially at that time, when Hezbollah was not
yet formed as a strong group, it was totally
controlled by Iran and actually served mainly the
Iranian interest in Lebanon and [against] Israel.
Q: Do you have an opinion, again within a reasonable
degree of certainty, as an expert in Islamist
terrorist groups, as to whether Hezbollah, at that
time, the fall of 1983, would have had the capacity
to carry out an attack of the dimension of the
attack around the Marine barracks, in the absence
of Iranian scientific, financial, and material
A: No, I don't think they could have carried out such
an attack without Iranian training, without Iranian
— Iranian supply of the explosives even, and
without directions from the Iranian forces in
Q: Dr. Paz, can you describe the — the source of
— of this technique of suicide bombing, which
was used in the attack on the Marine barracks and
since, unfortunately, many other incidents?
A: Yes, this — this modus operandi actually was
initiated in Iran and it was — it was not, at
that time, used in anywhere in — in the Sunni
Muslim world. It was at that time a Shi'ite
ideology of self-sacrifice by suicide bombing. It
started during the Iran-Iraq war in the '80s, and
then under Iranian training and influence and
instructions, it started as a modus operandi
of terrorist groups — first in Lebanon, by
Hezbollah, and then later on it moved to the
Palestinian arena, mainly during the '90s.
It is clear that the formation and emergence of Hezbollah as a major terrorist organization is due to the government of Iran. Hezbollah presently receives extensive financial and military technical support from Iran, which funds and supports terrorist activities. The primary agency through which the Iranian government both established and exercised operational control over Hezbollah was the Iranian Ministry of Information and Security ("MOIS"). MOIS had formerly served as the secret police of the Shah of Iran prior to his overthrow in 1979. Despite the revolutionary government's complete break with the old regime, it did not disband MOIS, but instead allowed it to continue its operations as the intelligence organization of the new government. Based on the evidence presented at trial, the Court finds that MOIS acted as a conduit for the Islamic Republic of Iran's provision of funds to Hezbollah, provided explosives to Hezbollah and, at all times relevant to these proceedings, exercised operational control over Hezbollah.
It is clear that MOIS was no rogue agency acting outside of the control and authority of the Iranian government. Indeed, as Dr. Clawson testified at trial, the October 23 attack would have been impossible without the express approval of Iranian government leaders at the highest level:
Q: In the fall of 1983, was there anything of a
significant nature, and especially a terrorist
attack the dimensions of the attack on the Marine
barracks of October 23rd, 1983, which would or
could have been undertaken by Hezbollah without
material support from Iran?
A: Iran's material support would have been absolutely
essential for any activities at that time, and
furthermore, the politics of the organization [was
such] that no one in the organization would have
thought about carrying out an activity without
Iranian approval and almost certainly Iranian
Q: Is that opinion within a reasonable degree of
certainty as an expert on Iran?
A: Oh, absolutely, sir.
Q: Would any operation such as the October 23rd, 1983
attack require the approval within Iran of the
Ministry of Information and Security?
Q: Yes, sir.
A: What about Mr. Rafsanjani?
Q: There would have been a discussion in the National
Security Council which would involve the prime
minister, Mr. Rafsanjani, and it would also have
required the approval of Iran's supreme religious
leader, Ayatollah Khomeini. We have many detailed
accounts about the approval process from other
attacks at this time, and, indeed, from a number of
Iranians who became disillusioned within this
process and later left.
Q: Doctor, your opinion within a reasonable degree of
certainty as an expert on Iran, what was the
foreign policy objective of the October 23rd,
1983, attack and other like attacks by Iran during
A: Both to end the Western, especially the American
presence in Lebanon, and to establish Iran's image
as the leader of the world's radical,
anti-Western, anti-American Muslim movement.
The two officials named by Dr. Clawson, the ("supreme leader") Ayatollah Ruhollah Khomeini and the prime minister of Iran, Ali Akbar Hashemi Rafsanjani, were high government officials in the Iranian government, occupying the positions of Supreme Leader and President.*fn11 The approval of both the Ayatollah Khomeini and President Rafsanjani was absolutely necessary to carry out the continuing economic commitment of Iran to Hezbollah, and to execute the October 23 attack. Given their positions of authority, any act of these two officials must be deemed an act of the government of Iran.
The complicity of Iran in the 1983 attack was established conclusively at trial by the testimony of Admiral James A. Lyons, Deputy Chief of Naval Operations for Plans, Policy and Operation from 1983-85. As deputy chief, Admiral Lyons routinely received intelligence information about American military forces. On October 25, 1983, the chief of naval intelligence notified Admiral Lyons of an intercept of a message between Tehran and Damascus that had been made on or about September 26, 1983. The message had been sent from MOIS to the Iranian ambassador to Syria, Ali Akbar Mohtashemi, who presently serves as an adviser to the president of Iran, Mohammad Khatami.*fn12 The message directed the Iranian ambassador to contact Hussein Musawi, the leader of the terrorist group Islamic Amal, and to instruct him to have his group instigate attacks against the multinational coalition in Lebanon, and "to take a spectacular action against the United States Marines." Admiral Lyons testified that he has absolutely no doubt of the authenticity or reliability of the message, which he took immediately to the secretary of the navy and chief of naval operations, who viewed it, as he did, as a "24-karat gold document."*fn13
Although it is not presently known whether Ambassador Mohtashemi contacted Musawi, evidence was presented at trial that Mohtashemi did proceed to contact a member of the Iranian Revolutionary Guard ("IRG"), and instructed him to instigate the Marine barracks bombing.*fn14 The Court heard the videotaped deposition testimony of a Hezbollah member known by the pseudonym "Mahmoud," who was a member of the group that carried out the October 23 attack.*fn15 Mahmoud, a Lebanese Shi'ite Muslim, testified that Ambassador Mohtashemi contacted a man named Kanani, the leader of the Lebanese headquarters of the IRG. Mohtashemi instructed Kanani to go forward with attacks that had been planned against the 24th MAU and the French paratroopers.*fn16 Mahmoud testified that a meeting was later held in Baalbek, Lebanon, which was attended by Kanani and Sheik Sobhi Tufaili, Sheik Abbas Musawi, and Sheik Hassan Nasrallah. Nasrallah is the present leader of Hezbollah.*fn17 Musawi, Nasrallah's immediate predecessor as the leader of Hezbollah, was killed in a February 16, 1992 Israeli attack.*fn18 Tufaili is a former secretary general of Hezbollah.*fn19
During this meeting, Kanani and the Hezbollah members formed a plan to carry out simultaneous attacks against the American and French barracks in Lebanon.*fn20 Mahmoud described the meeting and its aftermath:
They got the order. They met and adopted the operation
against the Marines and the French barracks in the
same time. The Marines operation was done. They moved
— they moved with one Iranian and one Shiite
from the — Southern Lebanon over the mountain
road to Hartareq Biralabin [phonetic spelling]. They
stayed two days there.
The — the cars were built, equipped, in
Biralabin in a warehouse near a — gas
station . . . underground. They built the cars.
They equipped the cars there. That's their center.
One Dodge, one red Dodge, that was painted exactly
like the other — the real Dodge that was
providing water and other stuff to the Marines, and
they moved it to the airport road where they put the
hold on — ambush and hold the real car when she
arrived. They stopped the real car and they moved with
the fake one that was built with explosives toward the
C. The Attack
As testified by Mahmoud, after the meeting in Baalbek, a 19-ton truck was disguised so that it would resemble a water delivery truck that routinely arrived at the Beirut International Airport, which was located near the U.S. Marine barracks in Beirut, and modified the truck so that it could transport an explosive device. On the morning of October 23, 1983, members of Hezbollah ambushed the real water delivery truck before it arrived at the barracks. An observer was placed on a hill near the barracks to monitor the operation. The fake water delivery truck then set out for the barracks, driven by Ismalal Ascari, an Iranian.
At approximately 6:25 a.m. Beirut time, the truck drove past the Marine barracks. As the truck circled in the large parking lot behind the barracks, it increased its speed. The truck crashed through a concertina wire barrier and a wall of sandbags, and entered the barracks.*fn21 When the truck reached the center of the barracks, the bomb in the truck detonated.
The resulting explosion was the largest non-nuclear explosion that had ever been detonated on the face of the Earth. The force of its impact ripped locked doors from their doorjambs at the nearest building, which was 256 feet away. Trees located 370 feet away were shredded and completely exfoliated. At the traffic control tower of the Beirut International Airport, over half a mile away, all of the windows shattered. The support columns of the Marine barracks, which were made of reinforced concrete, were stretched, as an expert witness described, "like rubber bands." The explosion created a crater in the earth over eight feet deep. The four-story Marine barracks was reduced to fifteen feet of rubble.
The force of the explosion was equal to between 15,000 to 21,000 pounds of TNT. FBI and ATF explosives experts both concluded that the explosive material was "bulk form" pentaerythritol tetranitrate, or PETN. Danny A. Defenbaugh, the on-scene FBI forensic explosive investigator, testified as to his findings:
[W]e were able to, through the forensic residue
analysis, identify the explosive
material, and it was unconsumed particles of PETN. . . .
PETN is a primary explosive that is manufactured
commercially and primarily for U.S. military
purposes. It is a primary explosive that is used in
detonating cord. Detonating cord is nothing more than
a plastic and fiber-wrapped cord that has the PETN,
which looks like a white powder . . . that is then
extruded inside of that cord. . . .
In this case, it was not [consumed]; we found
unconsumed particles of PETN. That was just like we
had found also in the American Embassy bombing. What
that means is that it had to have been from a bulk
explosive, it had to have been from a manufacturer.
Defenbaugh explained that when the commercially-manufactured form of PETN is detonated, it is completely consumed in the ensuing explosion. The presence of unconsumed particles of PETN at the Marine barracks blast site, therefore, indicated that the PETN used in the bomb had not been the standard commercially-available form of the explosive. Instead, it had been the raw "bulk form" of PETN, which is not generally sold commercially. In the Middle East, the bulk form of PETN is produced by state-sponsored manufacturers for military purposes. In 1983, bulk form PETN was not manufactured in the nation of Lebanon. However, at that time, bulk form PETN was manufactured within the borders of Iran.
Warren Parker, who served as an explosives expert with the Army and the ATF for forty years, testified that the effectiveness of the attack demonstrated that it had been the result of careful planning.*fn22 Parker also concluded, based on the degree of planning and sophistication that went into the attack, that a group of individuals without specialized training in explosives could not have carried it out:
Q: Mr. Parker, in your opinion, within a reasonable
degree of certainty as an expert in explosives,
could this bombing have been successfully carried
out by a group of individuals with limited
education, possessing minimal literacy and no
specialized training in explosives?
A: No, sir.
Q: And what do you base that opinion on?
A: The degree of planning, the degree of
sophistication of this bombing. . . . The fact that
it was a significant amount of a military-type
explosive. These are not things that you just go
down to the drugstore and buy a
pound of, these are not things [for which] you buy
innocuous materials and manufacture in your backyard.
PETN is manufactured in factories that have
specialized tools and equipment and knowledge.
I think that I will concur with Mr. Defenbaugh's
conclusion that it is a state- or military-run
factory that produces this type of material, and I
think the fact that it was carried out so
successfully and not bungled really enhances the
fact that somebody had practiced this
before. . . .
[D]uring the, say, late '60s, early '70s, clear
up into the '80s, there were state-sponsored
training camps involving the use of explosives for
political gain, and these training camps used as
part of their training, and I have seen materials
seized from those that included pages from military
manuals, U.S. military as well as English and
French military manuals, as part of their training
in calculating the explosive charges.
Q: I believe this Court in [Eisenfeld v. Islamic
Republic of Iran] received testimony with regard to
a training camp with regard to handling explosives
just outside Tehran, Iran, run by the Iranian
government. Would this be the kind of thing you're
talking about, an intensive course over three or
A: Yes, sir, those are exactly the kinds. There were
several of those. The one in Iran was just one of
several but typical of that.
Based on the evidence presented by the expert witnesses at trial, the Court finds that it is beyond question that Hezbollah and its agents received massive material and technical support from the Iranian government. The sophistication demonstrated in the placement of an explosive charge in the center of the Marine barracks building and the devastating effect of the detonation of the charge indicates that it is highly unlikely that this attack could have resulted in such loss of life without the assistance of regular military forces, such as those of Iran.
As a result of the Marine barracks explosion, 241 servicemen were killed, and many others suffered severe injuries. Steve Russell, the sergeant of the guard at the time of the explosion, testified that he had observed several victims of the bombing who were in severe pain before their deaths. Sgt. Russell stated that death was not instantaneous for many of the victims, and that many of the victims of the explosion endured extreme pain and suffering.
During the trial, family members of the victims testified about the anguish they endured when they learned of the attack. Deborah Peterson described what happened when she received word of the attack on the Marine barracks, where her brother, Corporal James Knipple, was stationed:
It was Sunday morning and I was sleeping and I got a
phone call from my father. He had a frantic sound to
his voice that I had never heard before and he said
— he just screamed, "Debbie, our worst nightmare
has been realized. And I turned on the television and
saw what was happening. . . .
It seemed like an awful long time [before word of
his death was received]. We waited and waited and
waited. We watched every television, we were — I
mean, the house was filled with people. We watched the
television, we got every newspaper, photograph,
magazine we could. We looked for his face among the
survivors. We even thought we saw him a couple of
times. All of his friends gathered, neighbors, and we
hope even though the count was rising. . . .
I think around November 7th or 8th, we got a phone
call . . . They wanted dental information and
identifying marks, anything we could give them, and my
father told them about a scar on his forearm. The next
day, they told us that he was identified. We brought
him home on the 9th, on his 21st birthday, and we
buried him on the 10th, the Marine Corps birthday. I
remember the casualty officer, he was all by himself,
he came to the house. We were all gathered around, and
he told us that Jim was among the dead. It was
I remember the casualty officer sitting next to my
father and they both seemed really quiet while
everybody else was screaming and yelling and crying,
and my dad just sat there really quiet. And then when
everybody left, he went downstairs and started to
scream Jim's name over and over and over again at the
top of his lungs.
III. CONCLUSIONS OF LAW
Having made the above-listed findings of fact, the Court now enters the following conclusions of law:
1. An action brought against a foreign state, its
intelligence service acting as its agent, and its
officials, acting in their official capacity, must
be brought under the Foreign Sovereign Immunities
Act of 1976, 28 U.S.C. § 1602-1611 et seq. The
FSIA must be applied in every action involving a
foreign state defendant. Verlinden B.V. v. Central
Bank of Nigeria, 461 U.S. 480, 489;
28 U.S.C. § 1330. The sole bases for subject
matter jurisdiction in an action against a foreign
state defendant are the FSIA's enumerated
exceptions to immunity. Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 434
(1989). This Court lacks subject matter
jurisdiction over the present actions unless they
fall within one of the FSIA's enumerated
exceptions to foreign sovereign immunity. See
Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993).
The FSIA has been construed to apply to
individuals for acts performed in their official
capacity on behalf of either a foreign state or
its agency or instrumentality. El-Fadl v. Central
Bank of Jordan, 75 F.3d 668, 671 (D.C. Cir. 1996)
(citing Chuidian v. Philippine Nat'l Bank,
912 F.2d 1095, 1101-1103 (9th Cir. 1990).
2. When it passed the Antiterrorism and Effective
Death Penalty Act of 1996, Congress lifted the
immunity of foreign states for certain sovereign
acts that are repugnant to the United States and
the international community, and created a right
of civil action based upon the commission of
terrorist acts. Pub.L. 104-132, Title II, §
221(a), (April 24, 1996), 110 Stat. 1214, codified
at 28 U.S.C.A. § 1605 (West 1997 Supp.). That
Act created an exception to the immunity of those
foreign states officially designated by the State
Department as state sponsors of terrorism, if the
foreign state so designated commits a terrorist
act, or provides material support and resources to
an individual or entity which commits a terrorist
act, which results in the death or personal injury
of a United States citizen. See
28 U.S.C. § 1605(a)(7); see also H.R. REP.
NO. 104-383, at 137-38 (1995).
3. Iran has continuously been designated a state
sponsor of terrorism by the
U.S. Department of State since January 19, 1984.
4. Applying the above-mentioned law, as a consequence
of the actions of the defendants, this Court
concludes that it possesses subject matter
jurisdiction over the defendants in these
actions, the Islamic Republic of Iran and the
Iranian Ministry of Information and Security.
5. 28 U.S.C. § 1605(a)(7) provides for personal
jurisdiction over foreign state sponsors of
terrorism. As this Court has noted in a previous
case involving the government of Iran, "[because]
international terrorism is subject to universal
jurisdiction, Defendants had adequate notice that
their actions were wrongful and susceptible to
adjudication in the United States." Flatow,
999 F. Supp. at 14 (citing Eric S. Kobrick, The Ex
Post Facto Prohibition and the Exercise of
Universal Jurisdiction over International Crimes,
87 COLUM. L. REV. 1515, 1528-30 (1987)); see also
Price v. Socialist People's Libyan Arab
Jamahiriya, 294 F.3d 82, 88-89 (D.C. Cir. 2002)
("In enacting [28 U.S.C. § 1605(a)(7)],
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.")
6. Applying the above-mentioned law, this Court
concludes that it possesses personal jurisdiction
over the defendants in these actions, the Islamic
Republic of Iran and the Iranian Ministry of
Information and Security.
7. 28 U.S.C. § 1605(f) provides for a statute of
limitations of "10 years after the date on which
the cause of action arose," and provides for
equitable tolling during the "period during which
the foreign state was immune from suit."
8. The state of Iran was immune from suit until
passage of Pub.L. 104-132, which was made
effective on April 24, 1996. Accordingly, the
Court concludes that the statute of limitations
contained in 28 U.S.C. § 1605(f) does not bar
9. In a memorandum opinion issued December 18, 2002,
this Court stated that if the plaintiffs in these
actions proved that the U.S. military service
members at issue in these cases were part of a
peacekeeping mission and that they operated under
peacetime rules of engagement, they would qualify
for recovery. As set forth in the above findings
of fact, the plaintiffs have demonstrated that the
U.S. military service members at issue were part
of a peacekeeping mission, and that they were
operating under peacetime rules of engagement.
Therefore, the Court concludes that the military
service members at issue in these cases qualify
10. A foreign state is liable for money damages under
the FSIA "for personal injury or death that was
caused by an act of . . . extrajudicial killing,
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. § 1605(a)(7).
The foreign state must be designated as a state
sponsor of terrorism under either section 6(j) of
the Export Administration Act of 1979, 50 U.S.C.
app. 2405(j) or section 620A of the Foreign
Assistance Act of 1961, 22 U.S.C. § 2371, at
the time that the act
occurred, unless the foreign state is thus
designated later as a result of that act. Id.
Either the victim or the plaintiff must have been
a United States national at the time of the act.
Id. Additionally, the act must be such that it
would be actionable if the United States, its
agents, officials or employees within the
United States engaged in similar conduct. The
Court concludes, based on the above findings of
fact, that plaintiffs in these actions have
established all of these elements by clear and
11. The FISA utilizes the same definition of
"extrajudicial killing" as the Torture Victim
Protection Act of 1991, which defines an
"extrajudicial killing" as "a deliberated killing
not authorized by a previous judgment pronounced
by a regularly constituted court affording all
judicial guarantees which are recognized as
indispensable by civilized peoples. . . ." Pub.L.
102-256, 106 Stat. 73 (1992). The Court concludes
that the act undertaken by agents of Hezbollah
— the development and detonation of an
explosive charge in the barracks of the 24th MAU
on October 23, 1983, which resulted in the deaths
of over 241 peacekeeping American servicemen
— satisfies the FISA's definition of an
12. The Court finds that MOIS, acting as an agent of
the Islamic Republic of Iran, performed acts on or
about October 23, 1983, within the scope of its
agency (within the meaning of
28 U.S.C. § 1605(a)(7) and 28 U.S.C.A. §
1605 note), which acts caused the deaths of over
241 peacekeeping servicemen at the Marine barracks
in Beirut, Lebanon. Specifically, the deaths of
these servicemen were the direct result of an
explosion of material that was transported into
the headquarters of the 24th MAU and intentionally
detonated at approximately 6:25 a.m., Beirut time
by an Iranian MOIS operative. The Court therefore
concludes that MOIS actively participated in the
attack on October 23, 1983, which was carried out
by MOIS agents with the assistance of Hezbollah.
13. The Court concludes that the deaths of over 241
peacekeeping servicemen at the Marine barracks in
Beirut, Lebanon were caused by a willful and
deliberate act of extrajudicial killing.
14. As the result of the deaths of the 241 American
servicemen in Beirut, Lebanon, their parents,
surviving siblings, children, and spouses have
suffered and will continue to suffer severe mental
anguish and loss of society.
15. It is beyond dispute that if officials of the
United States, acting in their official
capacities, provided material support to a
terrorist group to carry out an attack of this
type, they would be civilly liable and would have
no defense of immunity. See 42 U.S.C. § 1983;
Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971).
16. The Court concludes that the defendants, the
Islamic Republic of Iran and the Iranian Ministry
of Information and Security, are jointly and
severally liable to the plaintiffs for
compensatory and punitive damages.
17. As to each claim of each Complaint, the Court will
make a determination of the proper amount of
compensatory damages after its receipt of reports
from the special masters appointed by the Court.
The Court will
also make a determination as to punitive damages
at that time.
The Court is mindful that some may question the utility of the present suit. During the March trial, the Court heard testimony from a number of witnesses as to the reasons why this suit was brought, and as to its potential efficacy.
Dr. Patrick Clawson, deputy director of the Washington Institute for Near East Policy, described the manner in which civil judgments for acts of state-sponsored terrorism have had a noticeable impact upon the present regime in Iran:
Q: To what extent since its creation in 1979 has the
Islamic Republic of Iran been susceptible to
influence because of economic sanctions? By
sanctions, I don't mean something that was stated,
but simply having to pay out bucks, whether it's in
damages in personal injury cases or damages awarded
by a tribunal, punitive damages, anything of that
A: To begin with, the release of those held hostage at
the American Embassy in Tehran, most Iranian
observers think that the American freezing of
billions of dollars of Iranian assets and the
eventual negotiations which really hinged around
how much money Iran was going to get back is a good
example from the very beginning of this process of
Iran's susceptibility to economic pressure, and
there have been a number of situations since in
which Iran has been deflected from its main course
by economic pressures. For instance, the Europeans
[were] successful at doing that in the early
1990s, deflecting Iran from terrorist activities in
Q: Given the enormity of the offense committed on
October 23rd, 1983, in the attack of the Marine
barracks, how much of that sum in the pockets of
Iran would have to be subtracted before — in
order to give some indication that they would start
to change policy?
A: Well, sir, I would — the larger the sum, the
more of an impact this is going to have on the
Iranians, and if this court case results in a large
judgment, be it for compensatory or punitive
damages, that is very likely to receive the
attention of a fair number of policymakers in
Iran, and I have great confidence that the Iranian
leaders will consider that in deciding which way to
I think, sir, that the Iranians have been
extraordinarily sensitive to court actions, whether it
was in Germany or in Argentina or in the United
States, which make any references to the top
leadership of the country being involved in these
cases. That has been a matter of greatest sensitivity
in Iran, and there have been several cases in which
the Iranians reacted extremely strongly, particularly
to suggestions that the supreme religious leader was
involved in any way in these activities. . . . I have
to say that I think that they pay quite detailed
attention to these judgments. . . .
I would say that based on the past precedent about the
way that these court cases have been viewed, what will
be looked at very closely is two things. One is the
size of the dollars involved, and the other is whether
or not there is
any change in the way that the court views the matter.
So this case, if it involves a much larger judgment in
dollar terms than previous cases, will be regarded as a
toughening of the American stance.
On the other hand, there will be close examination
of whether or not this case in its legal reasoning or
in the application or non-application of punitive
damages involves any change in the way in which a
court rules. So, for instance, a lack of punitive
damages would be regarded as an indication that the
United States Government is making a gesture towards
Q: A softening of our position.
A: Correct, sir. . . .
Q: So as I read you correctly, less in punitive
damages than has been awarded in cases before would
be to the Iranians a softening of the American
resolve; more would be a hardening of the American
A: Correct, sir.
The Court also heard the testimony of Dr. Michael Ledeen*fn23 as to the likely effect of an award of damages in the present actions:
THE COURT: From your experience dealing all these
years now with Iran, have you seen, from
the court cases where punitive damages have
been entered by the courts, what impact, if
any, that has had in Iran and on the
government, and what do you think of that?
A: Well, it hurts the government because it stings
them, and the people see — what the Iranian
people need to reach the point where they are
willing to risk their lives to bring down this
regime is that the civilized world understands what
kind of regime it is and therefore would welcome
that kind of event; and consequently, in my
opinion, every time that regime is condemned and
punished in a Western court, that hastens the
moment of the downfall of that regime.*fn24
The Court also heard testimony from the men and women who have brought the present actions about their reasons for so doing. During the trial, Lt. Col. Howard Gerlach, who was paralyzed in the October 23 attack, was asked about what he hoped to achieve by participating in these actions:
Well, I guess there's three words: accountability,
deterrence and justice. And they are interrelated. The
accountability, and I swear it was on Sunday, I was
listening to a rerun of one of the TV — I don't
know, Meet the Press or whatever, but Vice President
Cheney was talking and he was saying that they, the
terrorists feel that they can do things with
impunity, and he said ever
since the Marines in '83. Yes, there hasn't been any
Deterrence effect is, in some way, and this is also
what he was talking about, was one thing we have to go
after — and I think I'm stating this correctly;
this is what I heard, is the funding. It's the
funding. Even on the radio coming over here, we heard
some talk about funding for terrorist organizations.
Then the third thing is the justice, and this refers
to the people, a good portion of [whom] are in this
room. . . . They lost a large chunk of their lives,
young Marines, sons, husbands, fathers, brothers. They
were attempting to do a noble thing. They went as
peacekeepers in the tradition of this country . . .
[W]e weren't trying to conquer land, we weren't trying
to get anything for ourselves; we were really trying
in a humanitarian way to help those people in
Lebanon. I think this is . . . the day in court,
literally and figuratively speaking, for recognition
of just how great these guys were.
The Court also heard the testimony of Lynn Smith Derbyshire, whose brother, Capt. Vincent Smith, was killed in the October 23 attack:
I'm not sure it's true that time heals wounds, but
even so, a wound which has healed over time is not the
same thing as not having a wound. Even a healing wound
gets reopened from time to time.
[A]s I have talked to so many of the Beirut
families, I believe that many of them would concur
with me when I say that the pain does not stop when
you bury the dead; it is only the very beginning. We
feel this loss over and over and over again. It does
not go away and it does not lessen with time; that is
a myth. It is more like teaching someone who has a
chronic pain disorder how to manage and embrace their
pain than it is a lessening of pain.
I have spoken to quite a number of the family member
and I think we're all — I think they would all
agree with me when I tell you that what Vince would
have wanted was justice.
Vince was a fair-minded man. Vince was a man of
integrity, as I know so many of the men who were lost
that day were. It's the kind of men Marines are.
That's what the Marine Corps produces. And Vince would
have wanted us to fight.
Vince would have said . . . we must hold these men
accountable. Vince would have said that it is time for
justice, that it is time for compensation, that it is
time to make it — to make them pay enough to
make them stop, because Vince was a man who believed
in what was right, and if he had lived, he would be
sitting here in my place and he would be saying, "Come
on, sis, let's go get them."
But he can't be here, and in his name, and in his
honor, and with the permission of some of the other
family members here . . . in their names and in their
honor, I salute them, and we stand together to do what
they cannot do for themselves.
There is little that the Court can add to the eloquent words of these witnesses. No order from this Court will restore any of the 241 lives that were stolen on October 23, 1983. Nor is this Court able to heal the pain that has become a permanent part of the lives of their mothers and fathers, their spouses and siblings, and their sons and daughters. But the Court can take steps that will punish the men who carried out this unspeakable attack, and in so doing, try to achieve some small measure of justice for its survivors, and for the family members of the 241 Americans who never came home.
A separate order accompanies this opinion.
In accordance with the memorandum opinion issued this date, it is hereby
ORDERED that judgment be, and hereby is entered on behalf of the plaintiffs, Deborah D. Peterson, et al., and Joseph and Marie Boulos, et al., as to all issues of liability against the defendants, the Islamic Republic of Iran and the Iranian Ministry of Information and Security. It is further
ORDERED that all claims for damages in these actions be submitted to Special Masters to be appointed by this Court. It is further
ORDERED that, following receipt by this Court of reports from the Special Masters, and in consideration of the findings and evidence presented in those proceedings, the Court will enter judgment as to each claim for compensatory damages. It is further
ORDERED that the Court will take under advisement the issue of imposing an amount in punitive damages against the defendants, pending the entry of judgment as to the amounts of compensatory damages.