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Buonocore Iii, et al v. Great Socialist People's Libyan Arab Jamahiriya

January 29, 2013

BUONOCORE III, ET AL., PLAINTIFFS,
v.
GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, ET AL., DEFENDANTS. VICTOR SIMPSON, ET AL., PLAINTIFFS,
v.
GREAT SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRIYA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW*fn1

Currently pending and ready for resolution are two actions brought under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq.: 1) Buonocore v. Great Socialist People's Libyan Jamahiriya, Civil Action No. 06-727, originally filed on April 21, 2006,*fn2 but amended on March 28, 2008,*fn3 and again on April 2, 2010*fn4 (only as to plaintiff Juliet Sweis); and 2) Simpson v. Great Socialist People's Libyan Jamahiriya, Civil Action No. 08-529, originally filed on March 27, 2008,*fn5 but amended on April 2, 2010.*fn6 The named Libyan defendants were dismissed from each of these actions by Judge Kessler, pursuant to the enactment of the Libya Claims Resolution Act, Pub. L. No. 110-301, 122 Stat. 2999 (2008).*fn7 Plaintiffs' claims remain pending against the following defendants: 1) the Syrian Arab Republic; 2) the Syrian Air Force Intelligence agency (Idarat al-Mukhabarat al-Jawiyya); and 3) Syria's Director of Military Intelligence (General Muhammad al-Khuli) (hereinafter collectively the "Syrian defendants" or "Syria").*fn8

An evidentiary hearing on liability and damages as to all plaintiffs was held from February 22-25, 2011.*fn9 During the hearing, this Court accepted evidence in the form of, inter alia, live testimony, live video-link testimony, affidavits, de bene esse depositions, and original documentary evidence. The Court also accepted testimony on various subjects from six qualified experts.*fn10 The following findings of fact and conclusions of law, however, address only those claims made by U.S. citizens seeking redress for actions taken against them or other U.S. citizens. The remaining plaintiffs and their respective claims will be addressed in a separate opinion.

FINDINGS OF FACT

I. Syria and the ANO

A. Syria is a State Sponsor of Terrorism

1. Prior to the December 27, 1985 attacks, and continuing to the present time, terrorism was, and remains, an integral tool for the Syrian regime. (Ex. 54*fn11 -- M. Deeb, May 2010 Trial Testimony at pg. 197; Ex. 54 -- M. Deeb, Affidavit ¶ 7; M. Deeb, T-23-192; Lang, T-23-171-72)*fn12

2. The United States designated Syria as a state sponsor of terrorism primarily because of its active and direct involvement in terrorist activities beginning in the mid-1970's. (Ex. 54 -- M. Deeb, May 2010 Trial Testimony at pgs. 201-02; Ex. 54 -- M. Deeb, Affidavit ¶ 8;

M. Deeb, T-23-193-94)

James Markham, Ph. D. was accepted by this Court as an expert witness in the following areas: 1) forensic economics; and 2) calculations involving damages for each of the killed or injured plaintiffs. (J. Markham, T-25-9)

Ambassador Robert Oakley was accepted by this Court as an expert witness in the following areas: 1) terrorism; 2) counterterrorism; 3) Middle Eastern affairs; 4) politics; and 5) Syria's sponsorship of the ANO prior to, during, and following the EgyptAir Flight 648 hijacking, and the Rome and Vienna Airport attacks. (R. Oakley, T-23-153)

Yoram Schweitzer, Ph.D. was accepted by this Court as an expert witness in the following areas: 1) terrorism; 2) counterterrorism; 3) Middle Eastern affairs; 4) politics; and 5) Syria's sponsorship of the ANO prior to, during, and following the EgyptAir Flight 648 hijacking, and the Rome and Vienna Airport attacks. (Y. Schweitzer, T-23-181)

3. Historically, Syria has provided material support to terrorist groups primarily in order to achieve foreign policy goals, such as pushing the United States and its allies out of the region. (Ex. 54 -- M. Deeb, May 2010 Trial Testimony at pgs. 197-98; Ex. 54 -- M. Deeb, Affidavit ¶ 7; M. Deeb, T-23-193)

4. Syria has supported terrorism to undermine the peace process between the Arabs and Israelis. (Ex. 54 -- M. Deeb, May 2010 Trial Testimony at pg. 198; Ex. 58*fn13 -- Y. Schweitzer, Feb. 4, 2010 De Bene Esse Deposition at pg. 11)

5. Syrian sponsored terrorist activities were, and continue to be, primarily directed against any entity supportive of that process, including moderate Arab states such as Egypt, proYassir Arafat Palestinian groups, and U.S. and Israeli targets. (Ex. 54 -- M. Deeb, May 2010 Trial Testimony at pg. 198; Ex. 54 -- M. Deeb, Affidavit ¶ 8)

6. Syria supported the Abu Nidal Organization ("ANO")'s operations against Arab countries that supported the Israel-Egypt peace treaty. (Ex. 54 -- M. Deeb, May 2010 Trial Testimony at pg. 198; Ex. 58 -- Y. Schweitzer, Feb. 4, 2010 De Bene Esse Deposition at pg. 11)

7. Syria utilized, and continues to utilize, terrorist groups as a means of achieving foreign policy goals without resorting to conventional methods of warfare, which it cannot afford to wage against either Israel or the United States. (Ex. 54 -- M. Deeb, Affidavit ¶ 7; M. Deeb, T-23-193)

8. As a result of its past support of terrorism, Syria was among the first countries designated in 1979 by the United States Department of State as a state sponsor of terrorism. (Ex. 54 -- M. Deeb, Affidavit ¶ 7; Ex. 55*fn14 -- R. Oakley, Affidavit ¶ 6; M. Deeb, T-23-193; R. Oakley, T-23-155-56)

9. Syria was designated as a state sponsor of terrorism on December 29, 1979. (Ex. 54 -- M. Deeb, Affidavit ¶ 7; Ex. 55 -- R. Oakley, Affidavit ¶ 6; M. Deeb, T-23-193)

10. Syria, as a result of its ongoing, current, and continuous sponsorship of terrorism, today remains designated by the State Department as a state sponsor of terrorism. (Ex. 55 -- R. Oakley, Affidavit ¶ 6)

11. During the period encompassing the Rome and Vienna Airport attacks of December 1985, Syria continued to support the most active and brutal international terrorist group operating at the time, the ANO. (Ex. 55 -- R. Oakley, Affidavit ¶ 6)

12. During that time period, the United States considered Syria one of the worst sponsors of terrorism in the world. (Ex. 55 -- R. Oakley, May 2010 Trial Testimony at pg. 22; R. Oakley, T-23-158)

13. Beginning on or about 1983, Syria began to rely increasingly on terrorist groups comprised of non-Syrians in order to deflect detection of Syria's support and liability for the actions of its terrorist surrogates. (Ex. 54 -- M. Deeb, Affidavit ¶ 8; M. Deeb, T-23-194-95)

14. During the period encompassing the Rome and Vienna Airport Attacks, President Hafiz al-Assad ("al-Assad") ruled Syria under an authoritarian government whereby all organs of the state were directly under his control. (Ex. 54 -- M. Deeb, Affidavit ¶ 9; M. Deeb, T-23-195)

15. One of the primary organs al-Assad utilized to sponsor terrorist organizations, such as the ANO, was the Syrian Air Force Intelligence agency, Idarat al-Mukhabarat al-Jawiyya. (Ex. 54 -- M. Deeb, Affidavit ¶ 9; Ex. 55 -- R. Oakley, May 2010 Trial Testimony at pg. 13; M. Deeb, T-23-195-96; R. Oakley, T-23-159)

16. The Syrian Air Force Intelligence agency acted more as a presidential intelligence service than an instrumentality of the Air Force, and was of paramount importance because it functioned as the highest intelligence organization in Syria. (Ex. 54 -- M. Deeb, Affidavit ¶ 9; M. Deeb, T-23-196)

17. The head of the Syrian Air Force Intelligence agency, General Muhammad al-Khuli ("al-Khuli") was the most powerful intelligence chief within Syria. (Ex. 54 -- M. Deeb, Affidavit ¶ 10; M. Deeb, T-23-196)

18. Syria remains a major sponsor of terrorism today. (Ex. 54 -- M. Deeb, May 2010 Trial Testimony at pgs. 198-99)

19. At present, Syria, as a state sponsor of terrorism, spends between U.S. $500,000,000 (at a minimum) and U.S. $700,000,000 annually on terrorism-related expenditures.

(M. Deeb, T-24-6)

20. Syria's current and ongoing support of international terrorism includes, but is not limited to, providing material support to HAMAS and Hezbollah.(Ex. 44*fn15 -- P. Lang, May 2010 Trial Testimony at pg. 160; Ex. 54 -- M. Deeb, May 2010 Trial Testimony at pg. 197-99, 232-34)

21. Both HAMAS and Hezbollah have been designated by the U.S. Department of State as Foreign Terrorist Organizations ("FTOs"). (Ex. 55 -- U.S. Department of State, Foreign Terrorist Organizations at pg. 1)

B. The ANO is a Foreign Terrorist Organization

22. The ANO was established and led by Sabri al-Banna a/k/a Abu Nidal. (Ex. 44 -- P. Lang, May 2010 Trial Testimony at pg. 141)

23. Abu Nidal was originally a leading member and operative of Yasser Arafat's Fatah organization which was, and is, the backbone of the Palestine Liberation Organization ("PLO"). (Ex. 54 -- M. Deeb, Affidavit ¶ 12; M. Deeb, T-23-198)

24. In October of 1974, when Abu Nidal was serving as Arafat's Fatah organization representative in Baghdad, Iraq, he decided to break away from Arafat's Fatah movement and form his own more radical organization, which he called the Fatah-Revolutionary Council, a.k.a. the ANO. (Ex. 54 -- M. Deeb, Affidavit ¶ 12; M. Deeb, T-23-198)

25. Abu Nidal broke away from Arafat because of Arafat's support of the Middle East peace process. (Ex. 54 -- M. Deeb, May 2010 Trial Testimony at pgs. 208-09)

26. Abu Nidal was a violent individual, and the ANO was brutal; their documented methodology for the commission of terrorist attacks required bloodshed. (Ex. 56*fn16 -- D. Long,

Mar. 16, 2010 letter at pg. 2)

27. During the relevant time period of the Rome and Vienna Airport attacks, the ANO became one of the most sophisticated terrorist groups of its day, with a global network of operations. (Ex. 56 -- D. Long, Mar. 16, 2010 letter at pg. 2; D. Long, T-23-147)

28. One of the primary reasons that the ANO was so effective was the high level of internal security Abu Nidal achieved within his organization. (Ex. 56 -- D. Long, Mar. 16, 2010 letter at pg. 2)

29. Compartmentalization within the ANO was rigid, both horizontally and vertically; personnel were organized into small cell groups with minimal interaction among the members. (Ex. 56 -- D. Long, Mar. 16, 2010 letter at pg. 2)

30. The ANO was run like a commercial enterprise, with different departments, including secret service, military, archives, and foreign relations. (Ex. 25 -- M. Badra,*fn17 Affidavit ¶ 10)

31. ANO terrorists used assumed names, along with matching forged identification and travel documents, which were changed constantly so that no one could be sure of their real names. (Ex. 56 -- D. Long, Mar. 16, 2010 letter at pg. 2)

32. The ANO required the support of governments to conduct its operations. Syria allowed the ANO to train, house, and dispatch its operatives within Syria. The operatives were also given passage to return to Syria or the Syrian-controlled Baaka Valley in Lebanon for further terrorist training and operations. (Ex. 24*fn18 -- K. Ibrahim,*fn19 Affidavit ¶ 13; Ex. 26 -- O. Rezaq,*fn20 July 1996 Trial*fn21 Testimony at pg. 2763-64; Ex. 44 -- P. Lang, May 2010 Trial Testimony at pg. 143; Ex. 58 -- Y. Schweitzer, Feb. 4, 2010 De Bene Esse Deposition at pgs. 29-31; P. Lang, T-23-172-73; O. Rezaq, T-23-75-76; K. Ibrahim, T-23-83)

33. The ANO was known by the United States government in 1985 and 1986 to be a brutal, violent, and dangerous terrorist organization and ANO was subsequently designated as an FTO. (Ex. 54 -- M. Deeb, May 2010 Trial Testimony at 226)

34. According to the most recent FTO list, which was released on September 28, 2012, the ANO remains designated as a FTO. Foreign Terrorist Organizations, http://www.state.gov/j/ct/rls/other/des/123085.htm (last visited Oct. 31, 2012).

35. The ANO, in at least the fall of 1985, trained its terrorist squads in the Syrian controlled Baaka Valley in Lebanon, maintained safe houses and headquarters in Damascus, and with the permission of the Syrian government and the Syrian Defendants, dispatched its terrorist operatives from its training camps. (Ex. 44 -- P. Lang, Affidavit ¶¶ 9, 10; P. Lang, T-23-172-73)

C. Syria Sponsored and Supported the ANO

36. In his official capacity, al-Khuli, the head of the Syrian Air Force Intelligence agency, invited Abu Nidal and his organization to move to Syria in January of 1981. (Ex. 54 --

M. Deeb, Affidavit ¶ 10; M. Deeb, T-23-196)

37. When al-Khuli officially invited the ANO to be based in Syria, he was following the orders of Syrian President al-Assad. (Ex. 54 -- M. Deeb, Affidavit ¶ 10; M. Deeb, T-23-196)

38. During the relevant period of the Rome and Vienna Airport attacks, and up to the present, Syria was a police state under the al-Assad family. (Ex. 54 -- M. Deeb, Affidavit ¶ 13; M. Deeb, T-23-199)

39. While the ANO was based in Syria, its actions and terrorist operations would not have been possible without the full knowledge and support of al-Assad and his chief intelligence officer, al-Khuli. (Ex. 54 -- M. Deeb, Affidavit ¶ 13; M. Deeb, T-23-199)

40. Beginning in 1983, the ANO more concretely established itself in Syria with headquarters and physical bases for training and other purposes. This also marked the exponential growth of ANO attacks around the world. (Ex. 54 -- M. Deeb, Affidavit ¶ 11)

41. ANO operations expanded to include attacks in the greater Middle East, Turkey, Pakistan, and Western Europe. (Ex. 54 -- M. Deeb, Affidavit ¶ 11)

42. The ANO's establishment of a base of operations in Syria in 1983 also marked a dramatic increase in the number of ANO terrorist attacks; more than one dozen ANO attacks in 1984, and twice that number in 1985. (Ex. 54 -- M. Deeb, Affidavit ¶ 11; Deeb, T-23-197)

43. The extensive support and infrastructure provided by the Syrian defendants enabled the ANO to expand its scope of operations, resulting in more terrorist attacks. (Ex. 56 --

D. Long, Mar. 16, 2010 letter at pg. 4)

44. Both before and after the November-December 1985 time period during which the Rome and Vienna Airport attacks occurred, Syria provided logistical support to the ANO, including permitting the ANO to maintain offices and safe houses in Syria, maintaining training camps in Syrian controlled territory including the Baaka Valley in Lebanon, and providing identification and travel documents to ANO operatives. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 13; Ex. 26 -- O. Rezaq, July 1996 Trial Testimony at pg. 2756, 6l, 63-64; Ex. 44 -- P. Lang, Affidavit ¶¶ 9-10; Ex. 54 -- M. Deeb, Affidavit ¶ 16; Ex. 55 -- R. Oakley, Affidavit ¶ 8; P. Lang, T-23-172-74; R. Oakley, T-23-159-60, 62-63; O. Rezaq, T-23-75-76; K. Ibrahim, T-23-83; M. Deeb, T-23-201)

45. Syria allowed the ANO to move about freely in Syria and in Syrian-controlled Lebanon, including allowing ANO operatives to transit to and through the Damascus airport, (Ex. 54 -- M. Deeb, Affidavit ¶ 16; M. Deeb, T-23-201), and also to and through the Beirut airport. (Ex. 44 -- P. Lang, May 2010 Trial Testimony at pg. 155)

46. Moreover, Syria also allowed ANO agents to travel on military highways between training camps in Syrian-controlled Lebanon and Damascus, without passport control. (Ex. 44 -- P. Lang, May 2010 Trial Testimony at pg. 144; P. Lang, T-23-174)

47. Surviving ANO terrorists from the Rome and Vienna Airport attacks have corroborated, by sworn depositions and filed affidavits, each of which has been admitted into evidence by the Court, Syria's specific logistical and material support and sponsorship of the ANO during the time period from November to December of 1985, to include the Rome and Vienna airport attacks. (Ex. 24 -- K. Ibrahim, De Benne Esse Deposition; Ex. 24 -- K. Ibrahim, Affidavit; Ex. 25 -- M. Badra, Affidavit; Ex. 28 - O. Rezaq, July 1996 Trial Testimony)

48. Syria had a role in the timing, the methodology, and the operation of the Rome and Vienna Airport attacks. (Ex. 54 -- M. Deeb, May 2010 Trial Testimonyat pg. 200)

49. The Syrian government, both directly and acting through Syrian Air Force Intelligence, provided support to the ANO and specifically sponsored the ANO Rome and Vienna Airport attacks. (Ex. 44 -- P. Lang, May 2010 Trial Testimony at pg. 145)

50. The Rome and Vienna Airport attacks could not have taken place without Syria's direct support. (Ex. 44 -- P. Lang, Affidavit ¶ 22; Ex. 54 -- M. Deeb, Affidavit ¶ 11; Ex. 56 -- D. Long, Mar. 16, 2010 letter at pg. 4; Ex. 58 -- Y. Schweitzer, De Bene Esse Deposition at pg. 35;

M. Deeb, T-23-197-98; Lang, T-23-179)

D. The ANO Perpetrated the Rome and Vienna Airport Attacks

51. Approximately one month prior to the Rome airport attack, ANO member Khaled Ibrahim ("Ibrahim") traveled to Damascus, Syria, to meet with Salim, head of the ANO committee on foreign operations. (Ex. 24 -- K. Ibrahim, Affidavit ¶¶ 10, 20)

52. At that meeting, Ibrahim was told that he would be going to Rome for an operation. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 20)

53. Ibrahim was given a Moroccan passport, tickets, $2,000 in U.S. currency, and instructions for the operation. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 20)

54. Ibrahim then traveled to Rome along with Taysir, another member of the ANO. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 20)

55. After they arrived in Rome, Ibrahim and Taysir met up with two other ANO members, Bilal and Mohamed. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 20)

56. ANO leaders instructed the men to wait in Rome until contacted and provided orders and details of the operation. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 22)

57. On December 25, 1985, the men met with Fouad, an ANO contact, who instructed them to 1) go to Fiumicino airport; 2) take hostages; 3) take them to an Israeli airplane; and 4) request that all the Palestinian prisoners be freed. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 23)

58. Fouad instructed the men that the time of the attack was important, in order to show people that they could coordinate the Rome and Vienna Airport attacks and demonstrate the power of the ANO. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 24)

59. On December 27, 1985, the men went to the Rome airport and positioned themselves for the 9:00 a.m. attack on people located in the vicinity of the El Al and TWA check-in counters. (Ex. 24 -- K. Ibrahim, Affidavit ¶¶ 26, 27)

60. Each of the ANO members had his own bag, which contained a Kalashnikov, bullets, and grenades. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 26)

61. Three of the four ANO members who carried out the Rome Airport attack were killed. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 27)

62. Ibrahim, the only surviving member of the ANO team that perpetrated the Rome Airport attack, was shot and injured, but survived. (Ex. 24 -- K. Ibrahim, Affidavit ¶ 27)

63. Ibrahim was later arrested and convicted in an Italian court for his participation in the attack. (Ex. 24 -- K. Ibrahim, Affidavit ¶¶ 2, 27) He is currently serving a life sentence at Rebibbia Prison in Rome, Italy. (Ex. 24 -- K. Ibrahim, Affidavit ¶¶ 2, 27)

II. Plaintiffs

A.The Maland Family

1. Don Maland

64. Don Maland ("Don") was born in Mineola, New York on November 30, 1955. (Ex. 13)

65. Don was born a United States citizen and was a United States citizen at the time of his murder. (E. Maland, T-22A-83)

66. Don's biological father was Einar Maland ("Einar") and his biological mother was Grace (McDonough) Maland ("Grace"). (Ex. 13)

67. Don's siblings are Mark Maland ("Mark"), Ellen Maland ("Ellen"), Tim Maland ("Tim"), and Jane Maland ("Jane"). (M. Maland, T-22A-31)

68. At the time of the attack, Don worked for Ford Aerospace in the Cairo branch office. (E. Maland, T-22A-82)

69. Ellen serves as the personal representative of Don's estate. (Ex. 16)

2. Einer Maland

70. Einar is now deceased. (Ex. 9)

71. Einar was a naturalized United States citizen and was so prior to the Rome and Vienna Airport attacks. (M. Maland, T-22A-28)

72. Mark serves as the personal representative of Einar's estate. (Ex. 10; M. Maland, T-22A-30)

3. Grace Maland

73. Grace is now deceased. (Ex. 7)

74. Grace was born a United States citizen and remained a citizen throughout her lifetime. (M. Maland, T-22A-26)

75. Mark serves as the personal representative of Grace's estate. (Ex. 8; M. Maland, T-22A-27)

4. Mark Maland

76. Mark was born a United States citizen and has remained a United States citizen at all times since his birth. (Ex. 2; M. Maland, T-22A-23)

77. Mark has a J.D. and practices law. (Ex. 86 -- Economic Loss Calculation for D. Maland at pg. 2)

5. Ellen Maland

78. Ellen was born a United States citizen and has remained a United States citizen at all times since her birth. (Ex. 11, 12; E. Maland, T-22A-79-80)

79. Ellen has a J.D. and practiced law for a period of time but now teaches. (Ex. 86 -- Economic Loss Calculation for D. Maland at pg. 2)

6. Tim Maland

80. Tim was born a United States citizen and has remained a United States citizen at all times since his birth. (Ex.17, 18; T. Maland, T-22B-28-29)

7. Jane Maland

81. Jane was born a United States citizen and has remained a United States citizen at all times since her birth. (Ex. 20; J. Maland, T-22B-6)

82. Jane has a B.A. and is a nurse. (Ex. 86 -- Economic Loss Calculation for D. Maland at pg. 2)

8. The Attack and its Aftermath

83. On December 27, 1985, Don was at the Rome Fiumicino Airport with his brother, Mark. (M. Maland, T-22A-50-51)

84. Don was shot in the head. (M. Maland, T-22A-54).

85. Don was fully conscious before he was shot and remained conscious after the attack ended. (M. Maland, T-22A-54).

86. After Don was shot, Mark used a handkerchief to try to staunch the profuse bleeding from Don's head. (M. Maland, T-22A-54, Ex. 6).

87. Mark and Don continued to talk and pray together on the floor of the airport concourse until Don was taken away for treatment. (M. Maland, T-22A-54-57).

88. Although he survived for a period of time, and was able to speak coherently at the hospital, Don ultimately died from his wounds. (M. Maland, T-22A-64; T. Maland, T-22B-48).

89. Mark suffered gunshot wounds to his leg in the attack. (M. Maland, T-22A-50, 53)

90. Mark was fully conscious before he was shot and remained conscious after the attack ended. ...


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