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Kilburn v. Islamic Republic of Iran

March 30, 2010

ANGELITA KILBURN AND STEVEN TIMOTHY KILBURN, AS CO-EXECUTORS OF THE ESTATES OF PETER C. KILBURN, AND BLAKE KILBURN DECEASED, PLAINTIFFS,
v.
THE ISLAMIC REPUBLIC OF IRAN ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No.: 117

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

1. The plaintiffs bring this action pursuant to the "terrorism exception" to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605A. Am. Compl. ¶ 28-31. The case arises out of the kidnapping of Peter C. Kilburn in late November or early December 1984, his subsequent sixteen month period as a hostage, and his April 1986 murder. Id. ¶ 14-18. At the time he was abducted, Peter Kilburn was a librarian and instructor of library sciences at the American University of Beirut ("AUB") in Beirut, Lebanon, a position that he had held for over 20 years. Id. ¶ 14; Pls.' Proposed Findings of Facts & Conclusions of Law ("Pls.' Proposed Facts") ¶ 1.

2. Peter Kilburn's brother, Blake Kilburn, filed suit in June 2001, on behalf of Peter's estate and on his own behalf against the Islamic Republic of Iran ("Iran") and its Ministry of Information and Security ("MOIS") (collectively the "Iranian defendants"), as well as the Socialist Peoples' Libyan Arab Jamahiriya ("Libya") and the Libyan External Security Organization ("LESO") (collectively the "Libyan defendants"). See generally Compl. Following Blake's death in January 2006, his wife Angelita and his oldest son, Steven Timothy Kilburn, were substituted as co-plaintiffs and co-executors of both Peter's and Blake's estates. Minute Entry (Sept. 21, 2006). In February 2009, the court, on the plaintiffs' motion, dismissed all claims against the Libyan defendants so that the plaintiffs could recover settlement funds from Libya via procedures established in the Libyan Claims Resolution Act ("the Act") Pub. L. No. 110-301, 122 Stat. 2999 (2008). See Mem. Op. (Feb. 26, 2009). On July 30, 2009, the plaintiffs advised the Court that $10,000,000 had been paid to their counsel for the benefit of the plaintiffs as a result of that dismissal and the Act. See Notice (July 31, 2009). The Iranian defendants, by contrast, have never participated in this case and as a consequence, default was entered as to them on March 3, 2005. See Entry of Default (Mar. 2 2005). Accordingly, the court ordered the plaintiffs to submit the necessary motions and materials to support the entry of a default judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1608(e). See Minute Order (June 25, 2009); Minute Order (July 21, 2009). The plaintiffs have now moved for judgment by default and submitted proposed findings of fact and conclusions of law. See Pls.' Mot. for Default J.; Pls.' Proposed Facts.

II. FINDINGS OF FACT

A. Factual Background

1. Peter Kilburn

3. Peter Kilburn was born on February 10, 1928, in Berkeley, California. See Pls.' Proposed Facts, Ex. 1, Dep. of Blake Kilburn ("Kilburn Dep.") at 6:13-7:2, attached hereto as Exhibit 1. As such, Peter was a United States citizen all of his life. Id. at 7:2-3.

4. Blake Kilburn was Peter's younger brother and his only sibling. He was born in San Francisco, California and was also a United States citizen his entire life. Id. at 6:4-7:3.

5. Peter grew up during the Great Depression and his father died when he was young, leaving his mother to raise both he and Blake by herself. Id. at 7:6-16. Peter's mother was a nurse, and brought home a "very modest" income, so, in the words of Blake, "times were tough." Id. Despite the difficult economic times, the family had a "very happy life." Id. at 7:13-16.

6. Growing up primarily in Berkeley, California, Peter was a serious and bookish child, but he was immensely popular in school and had many friends. Id. at 7:19-21, 8:1-9. More importantly, Peter was an excellent student who consistently achieved high grades and won the admiration of his teachers. Id. at 7:21, 8:10-18. Peter Kilburn loved learning and his focus on academia eventually led to a career in library sciences. Id. at 8:10-18, 13:9-17. Also, remarkably, by adulthood, Peter had learned to speak seven languages. Id. at 20:12.

7. Peter had incredibly poor eyesight and wore eyeglasses from early childhood. Id. at 8:20-9:1. The Kilburn family thought that Peter's poor eyesight would preclude him from being drafted into military service during World War II or at least limit his military service in some way. Id. at 9:20-21:3. Nevertheless, Peter was drafted into the United States Army Infantry as a rifleman. Id. at 10:3-4. Coincidentally, Peter hated guns while growing up and would not have anything to do with firearms. Id. at 10:4-8. However, Peter ultimately took to his role in the Army, obtaining a sharp shooter's badge and becoming the driver of a half-track. Id. at 10:9-11. According to Blake Kilburn, Peter's "life changed" while in the Army and that this transformation was indicative of Peter Kilburn's ability to "adapt to any circumstances." Id. at 10:12-13.

8. Peter Kilburn served with distinction in the Army infantry during World War II, earning a combat infantryman's badge, a good conduct commendation, and most importantly, a Bronze Star. Id. at 10:16-11:10. He fought on Guadalcanal and several other islands in the Pacific before taking part in the invasion of the Philippines. Id. at 10:16-11:3.

9. After his service, Peter Kilburn enrolled in the University of Washington. Id. at 12:3-7. While a student, Peter acted as the best man in Blake's wedding in Portland, Oregon. Id. at 12:15-16. Blake Kilburn and his new wife then moved to Seattle to be near Peter and soon welcomed their first child, Steven Timothy Kilburn ("Tim"), into the world. Id. at 12:16-25. Peter Kilburn took his role as an uncle seriously. When Blake had to leave his family to work temporarily in Alaska, Peter acted as a surrogate father to Tim Kilburn, attending his nephew's birth and standing by the little boy when he had an operation. Id. at 12:22-13:2.

10. Peter Kilburn graduated from the University of Washington summa cum laude and as a member of the Phi Beta Kappa honors society, receiving a degree in anthropology. Id. at 13:3-6. Upon graduation, Peter Kilburn obtained a masters degree in librarianship from the University of California, Berkeley, graduating, again, with honors. Id. at 13:7-17.

11. Peter Kilburn remained a bachelor during his life and never had any children of his own. However, Peter's role as an uncle to Blake's seven children was very important to him. Id. at 13:25-14:14. Peter was particularly proud of his nieces and nephews and thought of them as a surrogate family for the one that he did not have. Id. at 14:8-14.

12. Upon graduating from Berkeley, Peter Kilburn took a job managing the U.S. Air Force's library system in Spain, where he worked for several years and received commendations for his performance. Id. at 14:18-23, 15:9-13. Peter then traveled to North Africa, working in the library system of another U.S. military installation. Id. at 14:23-15:4.

13. In the late 1950's or early 1960's, Peter accepted a position in the library at AUB, working in the acquisitions department. Id. at 16:3-20. Peter's main responsibility for AUB was traveling to other countries to purchase books for the University's collection. Id. at 16:17-24.

Peter was a very popular and well respected man at AUB. Id. at 17:18-23. During a surprise visit to Beirut, Blake saw that Peter was a "moving force" at AUB and that he had many friends at the school. Id. at 17:3-23. This sentiment was echoed by a co-worker, who wrote a profile of Peter after his death in a journal on Middle East affairs, stating that Peter was "a man of well-considered convictions and with a sense of values" who had a "massive job" as the University's Acquisition Librarian. See Pls.' Proposed Facts, Ex. 2, ARTHUR H. WHITMAN, PERSONALITY: PETER KILBURN, WASHINGTON REPORT ON MIDDLE EAST AFFAIRS 10 (1986) ("PERSONALITY").

14. Peter had a "very happy life" at AUB. Kilburn Dep. at 17:24-25. According to Blake, Peter had a nice apartment and a pet cat and Blake was "very impressed with his set up [,]" believing Peter to be "very happy and certainly in control of his life." Id. at 18:2-5. During his time abroad, Peter and Blake Kilburn maintained contact routinely through correspondence. Id. at 18:21-24.

15. Peter occasionally visited the United States while on work trips, and each visit was "a very fine thing for the family" according to Blake Kilburn. Id at 18:6-17. On one particular trip, Peter visited his mother in Berkeley, and Blake was "lucky" enough to be able to join them. Id. at 18:8-12. Peter Kilburn also visited the family right before his kidnapping, around August 1984. Id. at 23:9-20. During that visit, Blake Kilburn tried to dissuade Peter from returning to Beirut because of the turbulent climate in Lebanon. Id. at 23:21-24:8. Peter was not persuaded, informing Blake that he wanted to return to Lebanon. Id. at 24:7-8; 26:2-23.

16. In fact, in the years leading up to his abduction, Peter never expressed any concerns for his safety to Blake, despite the rapidly deteriorating security situation in Lebanon. Id. at 19:7-13. According to Blake, Peter was not a "fearful sort of person" and Peter felt that his ability to speak fluent Arabic and his integration into Lebanese society protected him. Id. at 19:16-21. Though Peter did discuss the January 1984 assassination of AUB president Malcolm Kerr with Blake Kilburn, he was not the type of person to convey his pain over Kerr's death. Id. at 24:25-25:1-5. Ultimately, Peter believed that AUB's educational program and its 120 years of service were worth the security risks he faced daily. See PERSONALITY.

17. Peter Kilburn experienced health problems in the years before his abduction. In the late 1970's or early 1980's, Peter suffered a stroke that led to some paralysis and required him to walk with a cane. Kilburn Dep. at 20:15-24. Peter's intellect and speech, however, remained fully functional. Id. at 20:23-25. Additionally, Peter suffered from heart disease, hypertension, and other ailments requiring medications and medical attention. Peter's colleague described him as "increasingly frail physically," but pointed out that Peter "remained strong in his convictions and forceful in his daily battle for truth and knowledge [,]" which Peter believed to be the most powerful tools for peace. See PERSONALITY.

18. On or about November 30, 1984, Peter Kilburn was abducted from his Beirut apartment (some reports state the kidnapping occurred on various dates in early December 1984). Declassified U.S. State Department contemporaneous documents suggest that Peter could have been kidnapped by "hired guns" working for Hizbollah. See Pls.' Proposed Facts, Ex. 3, Department of State Telegraph, ("Telegraph") at ¶¶ 3-4 (Dec. 1986). However, Ambassador Robert Oakley, who served as the Coordinator for Counterterrorism at the State Department from 1984 to 1988, averred that, based on first hand knowledge that includes classified sources, as well as the benefit of learning more over time, there was extensive evidence establishing that Peter Kilburn was kidnapped by agents of Iran working in Lebanon. See Pls.' Proposed Facts, Ex. 4, Declaration of Ambassador Robert B. Oakley ("Oakley Decl.") at ¶ 6.

19. Oakley explained further that declassified U.S. Government documents indicated that "Islamic Jihad," which is simply another name for the terrorist organization Hizbollah, had accepted responsibility for Kilburn's kidnapping and detention. Id. at ¶¶ 7-8, Exhibit D, U.S. Dep't of State, PATTERNS OF GLOBAL TERRORISM: 1984 28 (Nov. 1985); see also Pls.' Proposed Facts, Ex. 5, U.S. Gov't Declassified Doc., International Links of LARF at 3, 5 (Feb. 1985). Ambassador Oakley based this assessment partly on an unclassified CIA "Action Message" stating that an anonymous caller to Beirut news agencies claimed Islamic Jihad's responsibility for the abduction of CIA agent William Buckley, CNN newsman Jeremy Levin, Reverend Benjamin Weir, Peter Kilburn, and Father Lawrence Jenco, who were to be tried as CIA spies. See Oakley Decl., Exhibit A, Demarche Regarding Reported Islamic Jihad Plans to Put U.S. Citizens on Trial at 1; see also Pls.' Proposed Facts, Ex. 6, U.S. Gov't Declassified Doc., Talking Points for the DCI/DDCI Meeting with Senator David Durenberger at ¶ 2 (Jan. 11, 1985) (stating that the Iranian-backed Islamic Jihad was assumed to be responsible for Kilburn's kidnapping). Additional declassified U.S. State Department documents indicate further that Islamic Jihad was simply a cover name for Hizbollah. Telegraph at 3; Pls.' Proposed Facts, Ex. 7, U.S. Gov't Declassified Doc., Islamic Jihad Claims Responsibility for Buckley Kidnapping at ¶ 4 (Apr. 4, 1984). 20. According to Dr. Patrick Clawson, Deputy Director of the Washington Institute for Near East Policy and a long-time analyst of the Iranian government who has testified in several cases before this court and regularly been deemed an expert on Iran by the judges of this court, "Islamic Jihad," is a known alias of Hizbollah. According to Clawson, although Islamic Jihad accepted credit for Peter's kidnapping, the fact that the terrorists were able to succeed in keeping Kilburn and others hidden from Western governments seeking to locate the hostages, is one indication that Hizbollah, with the funding and assistance of Iran and MOIS, were in reality the ones behind the hostage taking. See Pls.' Proposed Facts, Ex. 8, Dep. of Dr. Patrick Clawson, ("Clawson Dep.") at 32:19-33:6; see also Anderson v. The Islamic Republic of Iran, 90 F. Supp. 2d 107, 112 (D.D.C. 2000) (relying on Clawson's testimony); Sutherland v. Islamic Republic of Iran, 151 F. Supp. 2d 27, 46 (D.D.C. 2001) (same). Dr. Clawson also testified that it is not apparent Islamic Jihad ever actually existed. Clawson Dep. at 30:3-5. Rather, all relevant evidence suggests that Islamic Jihad was a name used by Hizbollah members as an alias in the organization's early days to conduct terrorist operations without fear of political reappraisals. Id. at 30:5-31:2.

21. Thus, all activities carried out in the name of Islamic Jihad, were, in fact, carried out by Hizbollah. Clawson Dep. at 31:8-12; see also Pls.' Proposed Facts, Ex. 9, U.S. Dep't of State, Iran's Use of International Terrorism at 1 (Oct. 27, 1987) (stating that Hizbollah operates under the name Islamic Jihad); Pls.' Proposed Facts, Ex. 10, CIA, Directorate of Intelligence, Lebanon: The Hizb Allah at 3 (Sept. 27, 1984) (stating that Hizbollah, using the cover of Islamic Jihad was responsible for the 1984 U.S. Embassy Annex Bombing). Indeed one declassified CIA document states that this was exactly the case with Peter Kilburn, explaining that while Islamic Jihad claimed responsibility for the kidnapping, Peter was likely being held by Hizbollah. See Pls.' Proposed Facts, Ex. 11, CIA, Directorate of Intelligence, Terrorism Review at 7 (Apr. 8, 1985).

22. Unfortunately Peter Kilburn's death and the fact that he was never held with another hostage who survived this ordeal prohibits the court from knowing the exact conditions of his captivity. Yet the fact is that every American and Western hostage held by Hizbollah endured, as Dr. Clawson put it, "extraordinarily unpleasant conditions." Clawson Dep. at 37:1-2. All American captives were kept in solitary confinement, shackled to walls, given inadequate food, subjected to beatings and mock executions, placed in unsanitary conditions and most, if not all, captives were held underground for most of their confinement. Id. at 37:2-12. Moreover, severe medical problems, such as those suffered by Peter Kilburn, were left untreated or were treated inadequately. Id. at 37:10-15. Importantly, many of these captives actually saw their captors wearing Iranian military uniforms or heard people speaking in Persian. Id. at 37:6-10. Dr. Clawson had no reason to believe that the circumstances of Peter Kilburn's captivity were different from those these other hostages. Id. at 38:3-14. Indeed, the same group that claimed responsibility for Peter Kilburn's kidnapping also claimed to have abducted William Buckley, Benjamin Weir, and Lawrence Jenco, whose circumstances as hostages are well documented by this court and formed the basis for Dr. Clawson's assessment of the prisoners' conditions of confinement. See Oakley Decl., Exhibit A at 1; see also Anderson, 90 F. Supp. 2d at 109-10 (describing conditions of confinement); Sutherland, 151 F. Supp. 2d at 33-36 (same); Surette v. Islamic Republic of Iran, 231 F. Supp. 2d 260, 263-65 (D.D.C. 2002) (same).

23. Throughout the sixteen months of Peter's captivity, his family received no information regarding his whereabouts or his condition. Kilburn Dep. at 18:21-24. Some time after Peter's murder, the FBI gave Blake a short, hand-scribbled note, reportedly from Peter that the FBI had intercepted during his captivity. Id. Prior to his abduction, Peter regularly corresponded with friends and family. Id. However, the letter intercepted by the FBI was the only correspondence received from Peter Kilburn after he was abducted. Id. at 28:15. According to Blake Kilburn, the letter did not read like something his brother would write. Id. The lack of contact or information regarding Peter's whereabouts and condition caused Blake Kilburn and his family severe mental anguish, depression, and anxiety. Id.

24. According to Ambassador Oakley, the U.S. Government received very little information concerning Peter Kilburn's whereabouts through much of 1985. Oakley Decl. at ¶ 9, Exhibit E, United States Department of State, Patterns of Global Terrorism: 1985 at 18 (Oct. 1986) (stating that at the end of 1985, Peter Kilburn was still being held by a Hizbollah faction). Further, Dr. Clawson testified that the U.S. Government engaged in extensive efforts to locate and rescue Peter Kilburn. Clawson Dep. at 34:8-35:4, 35:21-36:7. In late 1985, the U.S. Government was approached by a foreign intermediary who provided "convincing evidence of contact" with Peter's captors. Oakley Decl. at ¶ 9. The U.S. Government then entered into negotiations with the captors through the intermediary to secure Peter's release. Id. Simultaneously, the U.S. Government undertook covert activity with the FBI, Canadian Royal Mounted Police, and the CIA to obtain Peter's release. Id.; see also Pls.' Proposed Facts, Ex. 12, U.S. Gov't Declassified Doc., U.S./Iranian Contacts and the American Hostages ("U.S./Iranian Contacts")at 7 (Nov. 17, 1986). Ambassador Oakley, as the State Department's Coordinator for Counterterrorism, was directly involved in these efforts. Oakley Decl. at ¶ 9. Declassified U.S. Government documents support Oakley's statements that the United States was in ongoing negotiations with Iranian intermediaries to free hostages in Lebanon. See U.S./Iranian Contacts at 1-9.

25. In the spring of 1986, Blake Kilburn's family was informed by Colonel Oliver North that the United States was close to reaching an agreement with Peter's captors for his release. Kilburn Dep. at 30:20-31:13. Colonel North had orchestrated an elaborate plan to ransom Peter Kilburn with specially-treated United States currency, purportedly supplied by H. Ross Perot, that would disintegrate within hours of Peter's release. Id. Colonel North's plan, however, was never carried out because the United States bombed Tripoli, Libya on April 14, 1986. Id. at 32:2-12.

26. After the bombing of Tripoli, Libyan agents in Lebanon made it known that they wanted to purchase an American hostage to murder in retaliation for the bombing. Id. Declassified U.S. intelligence documents reveal that Libyan agents purchased Peter Kilburn and two British hostages, Leigh Douglas and Philip Padfield, from Hizbollah for approximately $3,000,000 sometime between April 14 and 17. Oakley Decl. at ¶¶ 11-12. On April 17, 1986, the ARC shot Peter in the back of the head and left his body and those of the two British hostages on the side of a road outside of Beirut. Id. The ARC claimed responsibility for Peter Kilburn's murder. See Oakley Decl., Exhibit F, U.S. Dep't of State, Patterns of Global Terrorism: 1986 at 35 (Jan. 1988). Ambassador Oakley's declaration confirms that Libyan agents purchased Peter Kilburn so that they could murder him in retaliation for the U.S. air strikes on Libya. Oakley Decl. at ¶¶ 6, 11-12. Apparently, the murder of Peter Kilburn prompted the Iranians to renew covert diplomatic contacts with the United States as a means of avoiding accusations that they were culpable for Peter's death -- even though they had sold Kilburn no doubt aware of his likely fate. U.S./Iranian Contacts at 7. Nevertheless, Peter Kilburn was dead at age 61. Kilburn Dep. At 32:10-12.

27. Peter Kilburn was buried with full military honors at the Presidio military base in San Francisco, California. Id. at 35:4-25. Reverend Benjamin Weir, a longtime friend of Peter's and himself a former hostage in Lebanon, spoke at Peter's funeral. Id. at 36:17-37:4. Peter's grave overlooks the Golden Gate Bridge, which Blake Kilburn described as the ideal resting place for his brother, who loved dearly the Bay area. Id. at 35:12-17.

2. Blake Kilburn

28. Blake and Peter Kilburn shared a close fraternal bond that, despite the geographical distance, was growing even closer in the immediate period before Peter's untimely death. Blake, now deceased, suffered mightily after hearing that his brother had been taken from him in such a "needless" manner. Id. at 33:24.

29. Growing up, Blake Kilburn and his brother did not have many things in common. Kilburn Dep. at 7:17-25. While Peter was studious, Blake was a "cut-up" and enjoyed playing with animals and tinkering with radios. Id. at 11:21-24. Nevertheless, Blake had "a great deal of affection and respect for" his older brother and Blake was certain that those feelings were reciprocated. Id. at 11:24-25.

30. During World War II, Blake became a radio officer aboard an ammunition ship. Id. at 11:13-16. Blake constantly tried to identify Peter's location during the war, believing that his more mobile position aboard a ship might allow him to reunite with his brother. Id. Nevertheless, Blake and Peter were unable to reconnect during the war. Id.

31. After the war, Blake worked off and on, trying to find himself before eventually settling down and marrying. Id. at 12:7-14. As noted, Blake selected Peter to be his best man at his wedding and Peter traveled from Seattle to Portland for the occasion. Id. at 12:14-16. Following the wedding, Blake and his first wife traveled to Seattle, to join Peter. Id. at 12:16-18. Moreover, Peter served as a surrogate father for Blake's burgeoning family while Blake traveled for work. Id. at 12:22-13:2. Ultimately, Blake had seven children, one of which subsequently passed away. Id. at 13:24-25. Most of Blake's children, as well as Blake himself, were very close with Peter. Id. at 14:8-14.

32. After Peter's move to Lebanon, Blake and he stayed in touch through regular correspondence. Id. at 17:3, 18:21-24. During his deposition, Blake described with fondness surprising Peter with an impromptu visit to Beirut. Id. at 17:3-10. The two brothers traveled all over Lebanon, with Peter acting as the informative tour guide, for which Blake was particularly thankful. Id. at 17:8-17.

33. During Peter's last visit, Blake tried to persuade him not to return to Lebanon because Blake did not have the "confidence in [Peter] being untouchable that perhaps he had." Id. at 26:19-23. Blake was concerned because Peter was his "only brother" (in fact his only sibling) but Peter was "immovable" on the subject. Id. From that final visit, Blake further recalled: that he was older. And we were closer. As far as a common bond between us seemed to be - a little bit more prevalent because all during our lives he was interested in a lot of things that I wasn't, and I was interested in a lot of things that he wasn't. And as we grew older we became closer, and I became more interested in things that he was interested in, and he was more interested in things ...


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