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Gates v. Syrian Arab Republic

September 26, 2008

FRANCIS GATES, ET AL., PLAINTIFFS,
v.
SYRIAN ARAB REPUBLIC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

It was a sunny day somewhere in Iraq and a light wind blew the long curtains into the room through the open door. A group of men clad in total black, faces covered, stood on a Persian rug facing a camera. Before them, a single man knelt. Dressed in an orange jumpsuit, hands bound behind his back, feet similarly bound, with eyes covered and mouth gagged, he rarely moved. One of the standing men began to read a proclamation in Arabic. It continued at length. Suddenly he stopped. The man in the orange jumpsuit tensed. Another of the men in black stepped forward and knocked the kneeling man over onto his side. Brandishing a knife, the man in black began to slice at the neck of the victim lying on the floor. The dying man audibly moaned and gurgled, as it took some time to cut all around his neck and through his bones before the head could be lifted in seeming triumph.

There is no doubt that al-Tawhid wal-Jihad ("al-Qaeda in Iraq") beheaded U.S. civilian contractors Jack Armstrong and Jack Hensley in the manner described, which it videotaped and played on the Internet for all the world, and ultimately this Court, to see. The question raised by this lawsuit is whether the Syrian Arab Republic can be held liable for money damages to the families of the two men pursuant to the Foreign Sovereign Immunities Act (the "FSIA"), 28 U.S.C. § 1602 et seq.

I. PROCEDURAL POSTURE

Plaintiffs are Francis Gates and Jan Smith,*fn1 the mother and sister of Jack Armstrong, and Pati and Sara Hensley, the widow and minor daughter of Jack Hensley. Plaintiffs filed this action on August 25, 2006, against Defendants who include: the Syrian Arab Republic ("Syria"); the president of Syria, Bashar al-Assad; the Syrian Military Intelligence, known as the al-Mukhabarat al-Askariya; and the Director of Military Intelligence, General Asif Shawkat. Plaintiffs allege that, acting through these principals, Syria provided material support and resources to the al-Tawhid wal-Jihad ("al-Qaeda in Iraq") and its leader, Abu Mus'ab al-Zarqawi ("Zarqawi"). Plaintiffs assert a cause of action under the FSIA, 28 U.S.C. § 1605A, as well as the following causes of action under state law: battery; assault; false imprisonment; intentional infliction of emotional distress; wrongful death; action for survival damages; conspiracy; and aiding and abetting.

None of the Defendants filed an answer or otherwise appeared. The Court proceeded to a default setting as provided by 28 U.S.C. § 1608(e), which requires a court to enter a default judgment against a non-responding foreign state only where "the claimant establishes his claim or right to relief by evidence satisfactory to the court." Id. The Court held a three-day hearing on liability and damages beginning on January 7, 2008.*fn2 Plaintiffs presented evidence in the form of live testimony, videotaped testimony, affidavit, and original documentary and videographic evidence.

Applying the Federal Rules of Evidence, the Court ruled that certain proposed evidence could not be admitted. Plaintiffs presented credible expert testimony from four experts and from an Iraqi countryman concerning Syria's assistance to Zarqawi and al-Qaeda in Iraq. From the entire record, including Plaintiffs' post-hearing filings, the Court makes the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

A. The Murders of Jack Armstrong and Jack Hensley

1. Olin Eugene "Jack" Armstrong and Jack L. Hensley were non-combatants, employed by a private sub-contractor as civilian project managers in Iraq, in September 2004. They did not provide armed security or bodyguard services; rather, they provided technical and operational assistance and resources for the military in non-combat environments in Iraq.

2. Mr. Armstrong had a history of working in foreign lands as a civilian construction engineer. He first took a construction engineering job in Croatia in early 1994, working for a subcontractor to the United Nations. Smith T-2-87. He later worked in Angola, the site of another United Nations humanitarian effort in the wake of the crisis in neighboring Rwanda. Id. at 92.

3. Mr. Armstrong lived in Thailand between jobs and had a committed relationship with a Thai woman with whom he planned to begin a cooperative farm. Smith T-2-94-95. Mr. Armstrong signed a year-long contract to work in Iraq to earn enough money to start the farm. Id.

4. Mr. Armstrong is survived by his mother, Francis Gates, and his sister, Jan Smith. They both had a close relationship with him. Smith T-2-85-86; Gates T-2-105, 108.

5. Jack Hensley held a college degree in mathematics and computer science. When he was working for an international construction and engineering firm, he met Pati, who became his wife. Jack worked in Saudi Arabia while Pati worked in Maryland. They both were later transferred to a coal export project in Colombia. They married on Christmas Eve in 1985. Hensley T-3-19-21.

6. Jack and Pati settled in Marietta, Georgia, where Jack went to work with Wang Laboratories ("Wang") as its computer operations manager for the Southeast region. He stayed with Wang for eleven years, during which time Pati gave birth to their daughter, Sara. Jack was a loving father to Sara, becoming her coach, school volunteer, and tutor in math and science, tennis and horseback riding. Hensley T-3-21, 27.

7. Wang then went out of business and Jack and Pati opened a neighborhood restaurant in Marietta named Networks. The business did not do well and, over the years, drained their savings. When Jack's mother was diagnosed with Alzheimer's, the Hensleys moved her into their home. Hensley T-3-19-23. To support his family, Jack Hensley took four part-time jobs but could not fully reverse their financial difficulties. When a recruiter offered Mr. Hensley a job in Iraq, he saw it as an opportunity to restore financial security to his family. Having worked in Saudi Arabia earlier, Jack Hensley believed he had an understanding of Muslim culture. His acceptance of the job also helped his family avoid bankruptcy. Mr. Hensley signed a year-long contract to work in Iraq to stabilize the family's finances and avoid bankruptcy. Hensley T-3-19-24-25, 28.

8. Messrs. Armstrong and Hensley lived in Iraqi residential housing, guarded by Iraqi militia. It is reported that these guards abandoned their posts upon a small payment, which allowed both men and Kenneth Bigley, an English national, to be kidnapped in September 2004. Shortly afterward, on September 18, 2004, a video was released on the Internet that showed the three hostages blindfolded and held captive by armed men. The video was disseminated in an online web forum that was a well-known repository of authentic messages from Zarqawi and al-Qaeda in Iraq. Kohlmann T-1-36. The videos prominently displayed the logo for Zarqawi's terrorist organization, a logo not used by any other terrorist group. Id. at 38.

9. On September 20, 2004, a message was released in the same online web forum, where Zarqawi messages and videos had been previously posted, announcing the murder of one of the hostages. Kohlmann T-1-38-39. A video was released later on the same day, on the same online web forum, that depicted the gruesome murder of Jack Armstrong. Id. at 40.

10. On September 21, 2004, a message was released on the same online web forum announcing the murder of a second hostage. Kohlmann T-1- 43. As before, a video was released later the same day. This video depicted the gruesome murder of Jack Hensley.*fn3 Id. at 45.

11. There has never been any dispute as to who killed Jack Armstrong or Jack Hensley or a competing claim of responsibility by another terrorist group. The United States found that Zarqawi and Al-Qaeda in Iraq "claimed responsibility for the videotaped execution by beheading of Americans Nicholas Berg (May 8, 2004), Jack Armstrong (September 20, 2004), and Jack Hensley (September 21, 2004)." Pls.' Trial Brief, Ex. 27, Country Reports on Terrorism 2005, U.S. Dep't of State, Office of the Coordinator for Counterterrorism at 220 (April 2006).

12. Al-Qaeda in Iraq published propaganda on the Internet that glorified its acts of terrorism, mayhem and murder. Kohlmann T-1-26, 30. Al-Qaeda in Iraq also issued claims of responsibility for acts of violence in Iraq beginning with the videotaped beheading of American businessman Nicholas Berg in the spring of 2004. Id. at 26-28. In communiques that were consistently formatted in the same way, and presented through the same identified Zarqawi propaganda mouthpieces in online web forums, strikingly similar videos were released, promoted, and redistributed across the Internet depicting all three murders. Id. at 26-28, 36.

13. After the murders of Messrs. Armstrong and Hensley, a number of critics in the Muslim world argued that it was cowardly to behead civilian hostages. Kohlmann T-1-47. Al-Qaeda in Iraq defended the practice in a message from the same online forum user who had posted the previous messages announcing the murders and showing the beheadings on video. Id.

14. The execution videos of Mr. Armstrong and Mr. Hensley follow the same pattern. The videos depict each American man blindfolded, gagged, and kneeling on the ground. As becomes evident, their hands and feet are tied. The terrorists stand immediately behind, faces concealed by black hoods. Several brandish assault rifles. One of them reads a polemic statement in Arabic. When the reading is finished, one terrorist produces a knife. He knocks over the American and begins sawing at his neck. The victims attempt to move away, to no avail. The video footage records awful sounds: kicking and efforts to escape, muffled cries, and labored breathing by the man wielding the knife. Copious amounts of blood are shown.

15. It would have would have taken several minutes before the victim lost consciousness due to the clumsy nature of the decapitation. See Williams T-2-69.*fn4 Thus, the videos, which are shorter in length, had been edited. At the conclusion of both videos, the decapitated head of each man is displayed.

16. The horrific sights and sounds of the videos have but one clear purpose -- to glorify acts of terrorism, mayhem, and murder and to frighten the viewer. There is no doubt that Zarqawi and his organization, al-Qaeda in Iraq, killed Messrs. Armstrong and Hensley. Their remains were recovered after officials found them dumped in various locations in Baghdad.

B. Syria's Role in Assisting Zarqawi and Al-Qaeda in Iraq

17. Plaintiffs presented expert witness testimony and testimony from an Iraqi countryman concerning Syria's assistance to Zarqawi and al-Qaeda in Iraq.*fn5 From this evidence, certain conclusions are clear. Syria was the critical geographic entry point for Zarqawi's fighters into Iraq, Levitt T-1-127, and served as a "logistical hub" for Zarqawi. Id. at 119, 127. Syria supported Zarqawi and his organization by: (1) facilitating the recruitment and training of Zarqawi's followers and their transportation into Iraq; (2) harboring and providing sanctuary to terrorists and their operational and logistical supply network; and (3) financing Zarqawi and his terrorist network in Iraq. Once Zarqawi beheaded civilian Nicholas Berg, the depth of his inhumanity was obvious but Syria did not withdraw its support.

1. Facilitating the Recruitment and Training of Zarqawi's Followers and Facilitating Their Transportation into Iraq

18. Syria and the Syrian Military Intelligence provided active assistance to Zarqawi and his followers in Iraq by allowing and helping their operatives to move through Syria and across the border into al-Qaeda's first military training camp in Iraq, near the village of Rawha. Kohlmann T-1-52-54.

19. A militant Islamic cleric on the payroll of the Syrian government, Abu Qaqa, actively recruited terrorists for the Zarqawi network in 2003. Schenker T-1-103.

20. In late 2003, a Syrian intelligence officer named Abu Moaz transported al-Qaeda operatives, including senior leaders, across the Syrian border to the Rawha training camp. Kohlmann T-1-52-54. The Rawha camp was where almost all of Zarqawi's senior officers who led his organization in 2003-2004 were trained. Id. at 54.

21. Members of al-Qaeda in Iraq who were captured by the company operated by Sheikh Abu Massoquoi confessed to receiving training at camps within Syria. Massoquoi Dep. at 24; see also Deeb T-1-67, 74-75.

22. The Syrian government provided assistance to facilitate the movement of terrorists through Syria for Zarqawi's terrorist network. Massoquoi Dep. at 20-23.

23. The airport in Damascus, Syria is "one of the most tightly controlled locations in Syria" as people must pass through border guards and under the observation of intelligence officials there. Schenker T-1-94. Syria allowed insurgents to arrive without restriction into the Damascus airport in significant numbers, before continuing their journey across the border and into Iraq. Id. at 94, 98-99. "This wasn't an underground railroad; this was being done with a full recognition and support of the government of Syria." Id. at 95.

24. Syria did not require a visa for non-Syrian Arabs entering Syria until 2006-07. Schenker T-1-94. The U.S. Government repeatedly asked Syria to require visas but it refused until recently. Id. at 95.

25. The Syrian government controls internal movement of persons within Syria. Schenker, T-1-98. For example, government permission is required to travel to certain sensitive border areas, and the government tracks travel through road blocks and periodic stops. Id. at 99.

26. When Saddam Hussein was in power in Iraq, Syria kept its border well secured but, in 2003-04, the Syrians minimized the presence of border troops to allow the unrestricted flow of terrorists through Syria and into Iraq. Schenker T-1-93-94. The Syrian government facilitated the travel of "scores of vehicles" from Damascus and into Iraq. Id. at 97.

27. Syria provided Zarqawi, a Jordanian national, with a Syrian passport, which it regularly gives to leading terrorists. Deeb T-1-75. Zarqawi fled Afghanistan to Iran in 2002 but was arrested by the Iranians. Id. Since Iran is an ally of Syria, it released Zarqawi quickly because he had a Syrian passport. Id.

28. Syria's support for insurgents in Iraq was evident from the location of the bus transit point to take fighters to Baghdad. The transit site was at one time located across the street from the U.S. Embassy in Damascus. Schenker T-1-87-88. The street is heavily guarded and regulated by the Syrian military, "one of the most closely guarded and observed spots in Syria." Id. "[F]oreign fighters were lining up and down the street . . . actually across the street from the Embassy to go to this office and sign up to get on a bus and be transported to Baghdad to take part in the insurgency." Id. at 88.

29. Theodore Kattouf, the U.S. Ambassador to Syria, repeatedly complained to the Syrian government about the bus transit point across from the U.S. Embassy. Schenker T-1-88. The Syrian government eventually closed that transit point and moved it to the Damascus fairgrounds. Id. The fairgrounds are owned and operated by the Syrian government, thus further revealing the Syrian government's control. Id.

30. Given Syrian government control of all domestic travel, the movement of large numbers of military-age men through Syria would have been known and approved by Syrian Military Intelligence, General Shawkat, and President Assad. Deeb T-1-74.

2. Harboring and Providing Sanctuary to Terrorists and Their Operational and Logistical Supply Network

31. Syria offered safe haven and a logistical support network in Syria for Zarqawi and al-Qaeda in Iraq. Levitt T-1-119-122. Syria not only helped foreign fighters move through its country into Iraq but also provided funding for them. Id. at 121. Zarqawi's group established useful relationships with Hezbollah and other insurgent and terrorist groups with the ...


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