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Massie v. Government of the Democratic People's Republic of Korea

December 30, 2008

WILLIAM THOMAS MASSIE, ET AL., PLAINTIFFS,
v.
THE GOVERNMENT OF THE DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM

This action is brought pursuant to the "terrorism exception" of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7) ("FSIA"), and arises from the kidnaping, imprisonment and torture of United States citizens who were aboard the USS Pueblo ("Pueblo") when the vessel was captured by agents of the Government of the Democratic People's Republic of Korea ("North Korea") in January 1968. Plaintiffs are William Thomas Massie and Donald Raymond McClarren, members of the Pueblo's crew, Rose Bucher, the widow of Lloyd Bucher ("Cdr. Bucher"), the Pueblo's commander, and the representative of his estate, who sues on her own behalf as well, and Dunnie Richard Tuck, who worked aboard the Pueblo as a civilian oceanographer conducting oceanographic surveys.

North Korea was properly served with a summons and copy of the complaint on September 8, 2006. Because North Korea did not answer or otherwise respond to the complaint, this court entered a default. On April 21 and April 22, 2008, this court held a damages trial. Based upon the evidence presented at the damages trial, the court makes the following:

I. FINDINGS OF FACT

A. Introduction and Background

1. On January 23, 1968, the Pueblo, which was engaged in electronic surveillance and other activities, sat dead in international waters in the Sea of Japan, approximately 25 miles from Wonson, North Korea, and 15.6 miles from the nearest land, North Korea's Ung-Do island. See Pls.' Trial Ex. 15 ("Ex. 15") at 121, ¶ 211; Tr. of Damages Hr'g ("Tr.") 11-15, April 22, 2008.

2. The vessel had no armor protection and was lightly armed with two .50 caliber machine guns, ten Browning semi-automatic rifles and a handful of .45 caliber handguns. See Ex. 15 at 113-114.

3. The Pueblo was manned by a crew of 83, which consisted of U.S. Navy personnel, including plaintiffs Massie, McClarren, and Cdr. Bucher, National Security Agency personnel, and two civilian oceanographers. See Tr. 16-17, April 22, 2008; Tr. 44, April 21, 2008.

4. About noon on January 23, 1968, the Pueblo was approached by a North Korean SO-1 class sub-chaser, hull number 35 ("SC-35"). SC-35 was at general quarters and its deck guns -- a 3-inch cannon and two 57 mm gun mounts -- were manned and trained on the Pueblo. See Ex. 15 at 122.

5. At 12:12, SC-35 signaled "What nationality." In response, Cdr. Bucher ordered the ensign to raise the flag indicating that the Pueblo was engaged in hydrographic research. See Ex. 15 at 122, ¶¶ 228-29; Tr. 15-16, April 21, 2008.

6. At 12:20, three North Korean P-4 motor torpedo boats were seen approaching the Pueblo from the direction of Wonson, North Korea. See Ex. 15 at 123, ¶ 232.

7. Then, at 12:27, on its third swing around the Pueblo, SC-35 hoisted a new signal: "Heave to or I will open fire on you." The Pueblo, after confirming its location, signaled that "I am in international waters." Ex. 15 at 123, ¶¶ 233-34.

8. By 12:35, the torpedo boats arrived and took positions around the Pueblo while two snub-nosed MiG-21s began a menacing circling of the Pueblo. See Ex. 15 at 123, ¶¶ 240-243; Tr. 16, April 21, 2008.

9. Shortly thereafter, new flags were hoisted on one of the torpedo boats: "Follow in my wake. I have pilot aboard." Ex. 15 at 124, ¶ 246. Then a boarding party transferred from the SC-35 to one of the torpedo boats, PT-604, which began backing toward the Pueblo's starboard bow with fenders rigged. Men in helmets with rifles and fixed bayonets stood on PT-604's deck. The signal was repeated: "Heave to or I will open fire." Id. at ¶ 247.

10. In response, Cdr. Bucher hoisted the signal: "Thank you for your consideration. I am departing the area." Id. at ¶ 249.

11. Cdr. Bucher then gave the order to get under way at one-third speed. As the Pueblo began moving, the torpedo boats began crisscrossing the ship's bow and SC-35 again signaled, "Heave to or I will fire." Id. at ¶¶ 252, 254.

12. After Cdr. Bucher ordered the speed of the Pueblo increased to full speed, SC-35 gave chase while sailors aboard one of the other torpedo boats, PT-601, uncovered a torpedo tube and trained it on the Pueblo. Id. at ¶ 257.

13. At this point, SC-35 directed all North Korean vessels to clear the area and announced that it was going to open fire on the Pueblo because it would not comply with North Korean navy instructions. Seconds later, SC-35 commenced firing its 57mm guns and the torpedo boats began firing their 30mm guns. No attempt was made to man the Pueblo's 50mm guns in order to return fire. Although most of the heavy machine gun rounds were aimed over the Pueblo, its signal mast was struck and Cdr. Bucher collapsed with small shrapnel wounds in his ankle and rectum. Ex. 15 at 125, ¶¶ 260-266.

14. Recognizing that there was no escape, Cdr. Bucher, at 1:34, gave the command "All stop" and the signalman was ordered to hoist the international signal for "Protest." The 57mm fire halted but the 30mm fire continued sporadically. Ex. 15 at 126, ¶ 278.

15. After the Pueblo briefly resumed movement, Cdr. Bucher, at about 2:30, once again ordered another "All Stop." Almost immediately, SC-35 closed to a range of about 2,000 yards and fired. This round of firing caused the death of a Pueblo crew member, Fireman Duane Hodges. Ex. 15 at 127, ¶ 294; Tr. 19, April 21, 2008. As many as 2,000 rounds struck the Pueblo. Ex. 15 at 144, ¶ 426.

16. At 2:32, a group of two North Korean officers and eight to ten enlisted men armed with AK47 assault rifles boarded the Pueblo. See Ex. 15 at 129-30, ¶¶ 320, 323.

17. They forcibly gathered members of the Pueblo crew on the well deck of the Pueblo, where the temperature was below freezing, and forced them to sit blindfolded with their hands and ankles tightly bound. See Tr. 20-21, 72, April 21, 2008; Tr. 25-27, April 22, 2008.

18. If crew members resisted, the North Koreans punched, kicked or jabbed them with their weapons. See Tr. 27, April 22, 2008.

19. After some time had passed, the crew members were pulled to their feet and taken inside of the Pueblo where Massie, along with the other crew members, were forced to sit on the floor in several inches of icy sea water. See Tr. 73-74, April 21, 2008.

20. At about 4:00, a second boarding party arrived with a senior North Korean colonel and a civilian pilot, who relieved the Pueblo's helmsman. Following an inspection of the ship by the North Koreans accompanied by Cdr. Bucher, Cdr. Bucher was ordered to sit on the deck outside his cabin. See Ex. 15 at 131, ¶ 343.

21. At approximately 8:30 p.m. on January 23, 1968, the Pueblo was tied up at a pier about ten miles northwest of Wonson and Cdr. Bucher was interrogated by several high-ranking North Korean officers. See Ex. 15 at 132, ¶ 359.

22. When the interrogation was finished, the crew was dragged off of the ship and, while bound and blind-folded, forced to walk over a thin gangplank approximately 8 to 10 inches wide onto North Korean soil. See Tr. 22, 75-75 April 21, 2008; Tr. 30, April 22, 2008. They were then led in front of an unruly crowd who yelled insults and spat at them. The guards also kicked them in the legs and administered "karate chops." See Ex. 15 at 146, ¶ 434; Tr. 75-76, April 21, 2008.

23. The crew was taken from the Wonson pier to a small building where they were beaten and severely mistreated in an effort to have them say that they were South Korean spies. See Ex. 15 at 147, ¶ 436.

24. At this small building, Massie, who was still blindfolded, was shoved into an iron stove. When he tried to cover his face from the heat and flames, Massie sustained burns to his hands. See Tr. 76, April 21, 2008.

25. While still blindfolded, the crew was forcibly put into buses with covered windows and was driven to a train station. On the way to the train station, the buses stopped at several places where North Korean civilians came aboard to beat and yell at the crew. North Korean officials also beat the crew with rifle butts and fists and kicked them. See Tr. 31, 33, April 22, 2008; Tr. 23, 77, April 21, 2008.

26. When they arrived at the train station, the captives were pulled from the buses. They remained blindfolded while being kicked and beaten in front of another hostile crowd before being loaded onto a train that would transport them to Pyongyang, where they would be held for six weeks. See Tr. 31, April 22, 2008; Tr. 23, April 21, 2008.

27. While on the train en route to the first detention site, the crew was continually mistreated, kicked, prodded with rifle butts, slapped, and punched by guards. See Tr. 24, 77, April 21, 2008; Tr. 33, April 22, 2008.

28. Several interrogations were conducted while in transit on the train and accusations of espionage were made by the captors. See Ex. 15 at 147, ¶ 437; Tr. 24, April 21, 2008.

29. During the 10 hour train ride, civilians on the train were allowed to beat, spit, and otherwise humiliate the captives, who remained blindfolded and bound. See Tr. 33-34, April 22, 2008. Cdr. Bucher was questioned six or seven times, and was hit on the back of his head with a rifle butt when he provided an unacceptable answer. He requested that the Pueblo's crew be treated in accordance with the precepts of the Geneva Convention, but his requests were ignored. He was told by the captors that the Geneva Convention did not apply because the crew was held as civilian prisoners in violation of North Korean criminal espionage laws. See Ex. 15 at 147, ¶ 438.

30. Upon arriving in Pyongyang the captives had their hands untied and the blindfolds removed. At the train station, Cdr. Bucher and the officers were marched off first with their hands held up, followed by the remaining crew members, an event that was heavily covered by the North Korean press. See Tr. 28, 77, April 21, 2008; Tr. 35, April 22, 2008.

31. The captives were then placed on a bus. As had been the case with the train, the bus windows were covered so that it was impossible for the captives to see where they were being taken or otherwise know their fate. See Tr. 29, April 21, 2008; Tr. 35, April 22, 2008.

32. The captives were transported to a "prison" building on the outskirts of town, which the crew nicknamed the "Barn," where they were held hostage for the next six weeks. When the buses arrived at the Barn in the early morning hours of January 24th, the captives were separated into rooms as they filed into the building. The heating system was off despite the severe winter cold. Bare light bulbs provided constant illumination and deprived the prisoners of sleep. The windows were covered depriving the prisoners of any situational awareness, and the hallways were dim. The atmosphere was one of severe cold, pierced by yelling, stomping, pounding and screaming. There was no running water. See Ex. 15 at 150, ¶ 452; Tr. 30, 99-100, April 21, 2008.

33. The crew was held in rooms with four men to a room. Each room had four cots, a table and four chairs. See Tr. 36-37, April 22, 2008; Tr. 29-30, 77, April 21, 2008. During the day, the captives had to sit at painful attention with their fists clenched down to their sides and their shoulders thrown back as far as possible. Their necks were shoved down as far as they could hold them. If the guards did not think that the heads were not being held down far enough, the guards would push the heads down to the point where the captives had difficulty breathing. See Tr. 99, April 21, 2008.

34. Rats were in the hallways and in the bathroom. See id. As a result of bed bug bites, Massie developed a severe infection that caused his leg to become inflamed and swollen. After the leg had swollen to twice its normal size, a North Korean doctor, without the use of an anesthetic, sliced it open with a pocket knife in order to drain the infection and swab the opened area of the leg with some type of medicine. Because Massie was unable to control the movement of his leg, one of his captors sat on his stomach while two others held his legs down on the table on which he had been placed. See id. at 101-103.

35. During the six weeks they were detained at the Barn, the hostages were continuously tortured and beaten and were not allowed to speak to one another. See Tr. 37-38, April 22, 2008. If one hostage was caught talking to another captive, both would be beaten into unconsciousness. See Tr. 99-100, April 21, 2008.

36. The hostages were not allowed to leave the building for any reason. However, on one occasion, Cdr. Bucher was taken to view the tortured body of a person he was told was a South Korean spy and who, according to North Korean officials, did not cooperate. See Ex. 15 at 150, ¶ 452.

37. The harsh treatment of the crew and Tuck during the eleven months they were held hostage consisted of severe physical beatings with karate blows, broom handles, belt buckles, boards and chairs, along with punches with rifle butts and whatever else that was handy. See Tr. 103, April 21, 2008; Tr. 81, April 22, 2008. A common and extremely painful torture was to force a captive to hold a chair above his head while kneeling or squatting with a board or stick behind his knees. See 15 at 150, ¶ 457. The beatings were accompanied by intimidation and threats that the crew members would be shot as spies if they did not confess. These threats created a constant fear of execution. See id.; Tr. 44-51, April 22, 2008.

38. On one occasion after McClarren was taken out of his room for interrogation, he was forced to kneel, a two-by-four was placed between his knees, and he was forced to lay on his back. After several hours, the guards told him to get up on a chair. Because he could not walk, he was forced to crawl to the chair and climb onto it. As he sat there, the officer that was behind the chair pulled out a gun, put it to McClarren's head, and pulled the trigger. When the trigger merely clicked, McClarren lost consciousness. See Tr. 35, April 21, 2008.

39. Another form of torture involved requiring the captives to stand against the wall with their arms held out straight. When their arms started to fall, the guards would hit them. When they could no longer put their arms up, the guards would beat them. See id. at 38.

40. When he was interrogated a day or two after arriving at the barn, Tuck was told that he would be shot because he was an FBI spy and not protected by the Geneva Convention. See Tr. 41-42, April 22, 2008. He was then asked what he thought. In response, Tuck pulled out a dime and told the interrogators that if they would take him to Panmunjom and let him call President Johnson, the situation could be straightened out. Id. at 44. At that point, one of the North Korean officers jumped over the table at which he was seated, grabbed a rifle from the guard who was standing next to Tuck, and hit Tuck with it on Tuck's chin. The blow split Tuck's chin open. See id. at 44-45.

41. When the captives were allowed to go to the toilet to relieve themselves, the guards routinely administered karate kicks to them on their way to and from the toilet. See Tr. 36-38, 114-15, April 21, 2008; Tr. 46, April 22, 2008.

42. It is apparent that the captives were treated as they were because their captors wanted to extract confessions from them that they were spying on North Korea in North Korean waters, and not international waters, when the Pueblo was hijacked. See id. at 38.

43. For 40 days, the captives were not given an opportunity to shower, change clothes or shave. They were covered in their own blood and in some cases their own feces. See Tr. 30, 100, April 21, 2008.

44. The food provided to the captives was very poor in quantity and quality and lacked proper vitamin and nutritional content. In caloric content it was marginally able to sustain life (about 500 calories per day). Rice, bits of fish, turnip soup, bread and butter accounted for the bulk of the diet. Meals were served in buckets in a most unsanitary manner. See Pls.' Trial Ex. 11 ("Ex. 11"), at 5-6; Ex. 15 at 150, ¶ 453; Tr. 98-99, April 21, 2008; Tr. 70, April 22, 2008. During the eleven months they were held hostage, Cdr. Bucher lost approximately 50 pounds. See Tr. 118, April 22, 2008. Massie lost 51 pounds. See Tr. 99, April 21, 2008. Tuck lost 37 pounds. See Tr. 90, April 22, 2008.

45. Immediately after Cdr. Bucher arrived at the Barn on the morning of January 24, he underwent interrogations during which he and his crew were accused of being spies. He was told that he and his crew would be treated as civilian espionage agents, tried under Korean law and shot at sundown. In almost every interview, his captors demanded that he sign a typed confession that he was a spy and a member of the Central Intelligence Agency ("CIA") and was trying to start a war. Cdr. Bucher refused to sign. See Ex. 15 at 148, ¶¶ 440-41.

46. About noon, Cdr. Bucher had his first direct interview with the officer who would be in charge of the captives throughout their confinement. This officer, nicknamed "Super C" because he was a senior colonel (later renamed "GG" for "Glorious General" after he was promoted), was considered to be highly intelligent, competent, but cruel. At one stage in the interrogations, Cdr. Bucher was confronted with classified publications removed from the ship, including his own narrative log. See id. at ¶ 441.

47. At about 8:00 p.m. of the first day at the Barn, Cdr. Bucher was again taken to an interrogation room. Present were "Super C," another officer with a drawn pistol, a third officer, two or three enlisted men with bayonets fixed to their guns, and several interpreters. Again, Cdr. Bucher was told to sign the typed confession. When he refused, he was told to sign or he would be shot. Id. He was then made to kneel on the floor, while an officer with a drawn pistol stood behind him and another officer stood in front. While kneeling on the floor, he repeated the phrase "I love you, Rose" over and over to keep his mind off of what was to come. Tr. 110, April 22, 2008. At the end of two minutes, the officer in front of him was ordered to move aside and "Super C" said "Kill the son-of-a-bitch." Although the trigger was pulled, the gun did not discharge. See id.

48. At about 10:30 p.m. on January 24, Cdr. Bucher, having not eaten or slept for a day and a half, was returned to the same interrogation room and told that he would now see what happened to spies. He was led to a staff car and driven to a building about ten minutes away. There he was shown a man, allegedly a South Korean, who was strapped to the wall and had undergone extreme physical torture. The man's head was badly swollen, one eye hung out of its socket and broken bones were evident. Cdr. Bucher was told "Now you know what happens to spies." See Ex. 15 at 148, ¶ 441; Tr. 39, April 22, 2008.

49. About 45 minutes later, Cdr. Bucher was taken again to an interrogation room. During this session he was informed that his crew would be shot, in his presence, one by one, beginning with the youngest crew member. Cdr. Bucher was also told that after every crew member had been killed, he finally would be made to sign a confession and that he too would then be killed. He was told that his interrogators had already sent for Engineman Fireman Howard E. Bland. When Bland was brought into the room, Cdr. Bucher was convinced that his captors would carry out their threat and therefore signed the confession. See Ex. 15 at 148, ¶ 441;Tr. 40-41, April 22, 2008.

50. It is apparent that North Korea was primarily interested in obtaining confessions and personal history statements from the captives for international propaganda purposes. See Ex. 15 at 155, ΒΆ 490. Immediately upon arrival at the Barn, North Korean agents began their unrelenting assault on the crew to get them to admit to crimes. Men were taken, in what seemed to be a random order, and interrogated about their jobs on the Pueblo, and why the Pueblo had intruded into its territorial waters ...


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