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Flanagan v. Islamic Republic of Iran

United States District Court, D. Columbia.

March 31, 2015

SAUNDRA FLANAGAN, et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, et al., Defendants

Page 94

For SAUNDRA FLANAGAN, JAMES RUX, THOMAS RUX, MATTHEW RUX, TIMOTHY RUX, Plaintiffs: Jennifer L. Kent, PRO HAC VICE, Joshua M. Ambush, LAW OFFICES JOSHUA M. AMBUSH, LLC, Baltimore, MD.

OPINION

Page 95

LRUDOLPH CONTRERAS, United States District Judge.

Re Document No.:29

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Granting Plaintiffs' Motion for Default Judgment

This case arises out of the October 12, 2000, terrorist bombing of the U.S.S. Cole (" the Cole" ) in Yemen, which resulted in the death of seventeen American sailors, including Electronic Warfare Technician First Class Kevin Shawn Rux (" Kevin" ). First Amended Complaint [#18] at 1. The plaintiffs are Kevin's mother (" Doe Victim A" ) and his four brothers (" Doe Victim B," " Doe Victim C," " Doe Victim D," and " Doe Victim E" ). Id. ¶ ¶ 4-8. The defendants are: 1) the state of Iran and its

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agencies and instrumentalities, to include a) the Iranian Ministry of Intelligence and Security, b) the Iranian Islamic Revolutionary Guard Corps, and c) the Iranian Islamic Revolutionary Guard Corps-Qods Division (" the Iranian defendants" ); 2) the state of Sudan and its agencies and instrumentalities, to include a) the Sudanese Ministry of the Interior, b) the Sudanese Ministry of Defense, c) the Security of the Revolution, d) the Sudanese Military Intelligence, e) the Sudanese State Security, f) the Sudanese Popular Defense Force, and g) the Revolutionary Security Services (" the Sudanese defendants" ); and 3) the state of Syria and its agencies and instrumentalities, to include a) the Syrian National Security Directorate, b) the Syrian Republic Guard, 3) the Syrian Ministry of Interior, 4) the Syrian Military Intelligence Service, 5) the Syrian Air Force Intelligence, and 6) the Syrian Special Forces (" the Syrian defendants" ). Id. ¶ ¶ 9-15. The plaintiffs' claims for intentional infliction of emotional distress (" IIED" ) and solatium are brought under section 1605A of the Foreign Sovereign Immunities Act (" FSIA" ), 28 U.S.C. § § 1602 et seq. [1] Id. ¶ ¶ 2, 138-144.

On October 31, 2012, defaults were entered against the Iranian and Sudanese defendants. See Default [#26] at 1; Default [#27] at 1. According to the plaintiffs, as of March 28, 2013, they were unable to effectuate service of process against the Syrian defendants. See Plaintiffs' Status Report [#28] at 1. The plaintiffs decided, therefore, to proceed against the Iranian and Sudanese defendants. Id. at 2. Thus, currently pending and ready for resolution is Plaintiffs' Motion for Default Judgment Upon Evidentiary Hearing Against Iranian and Sudanese Defendants [#29].

An evidentiary hearing on liability and damages was held on August 12, 2014.[2] At that hearing, the Court took judicial notice of the evidence presented in Rux v. Republic of Sudan, 495 F.Supp.2d 541 (E.D. Va. 2007), another case arising out of the same incident.[3] See Transcript of Evidentiary Hearing Before the Honorable John Facciola United States [Magistrate] Judge [#40] at 11. In addition, the Court accepted evidence in the form of live testimony, affidavits, and documentary evidence.

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Finally, the Court also accepted testimony from five qualified experts. As to the Sudanese defendants' relationship with and support for Al-Qaeda, the Court accepted the testimony of: 1) Lorenzo Vidino, PhD, a senior fellow at the Center for Security Studies in Zurich, Switzerland; [4] and 2) Dale L. Watson, former Assistant Director of Counterterrorism for the Federal Bureau of Investigation.[5] As to the Iranian defendants' relationship with and support for Al-Qaeda, the Court accepted the testimony of: 1) Patrick Clawson, PhD, Director of Research at the Washington Institute for Near East Policy; [6] 2) Daniel Byman, PhD, Professor at Georgetown University's Edmund A. Walsh School of Foreign Service; Research Director, Saban Center for Middle East Policy at the Brookings Institution; [7] and 3) Dale L. Watson, again. Finally, plaintiffs offered the expert testimony of Larry H. Pastor, MD, FAPA, DABAM, a psychiatrist who works in the Office of Medical Services at the Central Intelligence Agency, in support of their claims for damages.[8]

FINDINGS OF FACT

I. Osama Bin Laden and Al-Qaeda[9]

1. During the Afghanistan war against the Soviet Union, from 1979 to 1989, Osama Bin Laden, the son of a Saudi construction magnate, organized and financed the recruitment and training of Arab nationals to join the Afghan national resistance movement in whet was known as the anti-Soviet " jihad" or holy war. PEX 9[10] at 55.[11]

2. In approximately 1988, Bin Laden founded Al-Qaeda to serve as a base " for future jihad." Id. at 56. Al-Qaeda's " structure included as its operating arms an intelligence component, a military committee, a financial committee, a political committee, and a committee in charge of media affairs and propaganda. It also had an Advisory Council (Shura) made up of Bin Ladin's inner circle." Id.

3. Since its inception, Al-Qaeda has executed or inspired acts of terrorism around the world, including the September 11, 2001, attack on the United States, which have killed or injured thousands of innocent people. Id. at 47-63.

4. Specifically, " Bin Ladin saw himself as called 'to follow in the footsteps of the Messenger and to communicate his message to all nations,' and to serve as the rallying point and organizer of a new kind of war to destroy America and bring the

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world to Islam." Id. at 48 (internal citations omitted). Accord PEX 1 at ¶ 11.

II. The Bombing of the U.S.S. Cole

5. " At approximately 8:30 a.m. on October 12, 2000, the Cole entered the Port of Aden, Yemen, to temporarily stop for refueling." Rux, 495 F.Supp.2d at 544-45.

6. " The Republic of Yemen is a country of 203,850 square miles located on the southern coast of the Arabian Peninsula. Aden is a city of approximately 440,000 located on Yemen's south coast. The Port of Aden is a natural harbor with a deep draft in most areas and natural land protection on all sides." Id. at 545.

7. " In February 1999, the Navy began using Aden instead of Djibouti as the primary refueling stop for American ships during their 3,000-mile journey to the Arabian Gulf from the Mediterranean Sea. Under a contract entered into between the United States and Yemen, U.S. Navy vessels could obtain fuel at one of two fueling 'dolphins' located near the mouth of the harbor without going to the pier." Id.

8. " The Cole, an Arleigh Burke Class Destroyer, was the twenty-fifth Navy ship to stop in Aden Harbor for refueling over the previous nineteen months. As of October 2000, the ship had a crew of twenty-six officers and 270 enlisted personnel. The Cole departed from its home port of Norfolk, Virginia, on August 8, 2000, before patrolling the Mediterranean Sea. On October 9, 2000, the ship transited the Suez Canal and headed for Yemen. At the time that the ship entered the Port of Aden on October 12, 2000, the U.S. Department of Defense terrorist threat level in Aden was 'Threat Condition (THREATCON) BRAVO,' which indicated an 'increased and more predictable threat of terrorist activity.'" Id.

9. " At approximately 8:49 a.m., the Cole moored starboard side to Refueling Dolphin Seven, near the mouth of the harbor. The ship began refueling at approximately 10:31 a.m. At approximately 11:10 a.m., one of the sailors standing watch over the refueling noticed a small boat heading 'fast and hard' toward the Cole from the direction of the city. The boat, painted white with fire red trim, was about thirty-five feet long and six to seven feet wide and had a shallow V-hull. It looked 'brand new.' The boat was similar in size and shape to many other small vessels in the harbor, including the service craft that had been alongside the Cole. The boat was manned by two males, both of whom appeared to be in their early thirties. The two men slowed the boat as they approached the Cole, maneuvered it parallel to the ship and came down the port side headed aft. As they did so, the two men in the boat were smiling, and waved to the crew. Some crew members returned the greeting. Seconds later, the boat exploded." Id.

10. " The explosion occurred between approximately 11:15 and 11:18 a.m., just as some of the crew was sitting down for lunch. The blast ripped a thirty-two- by thirty-six-foot hole in the port side. . . . Smoke, dust, and fuel vapors filled the air. The main engine room, auxiliary machine room, and the dry provisions storeroom were flooded. Several chambers, including the Crew and Chief Petty Officer's Galley, were structurally destroyed. The blast and its after-effects killed seventeen Navy sailors, all of them American citizens. Forty-two others were injured, some of them sustaining serious burns to their faces, hands and arms, as well as lacerations and fractures." Id.

III. The Sudanese Defendants

A. Background

11. In 1989, General Omar Bashir assumed the presidency of Sudan in a military

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coup that overthrew the elected government and converted Sudan into an Islamic Arab state. PEX 7[12]; PEX 8[13]. The coup was orchestrated by Hassan al Turabi, head of the Sudanese political party, the National Islamic Front (" NIF" ). PEX 6 at 57. Accord PEX 10[14] at 6. Turabi was in power from 1989 until his fall in late 1999. PEX 10 at 6.

12. Following the Soviet withdrawal from Afghanistan in 1989, Bin Laden briefly returned to his home country of Saudi Arabia but had his passport seized by the government due to his relationship with extremists in Afghanistan. PEX 1-A[15] at 2. At a time when Al-Qaeda found itself without a territory from which it could base its terrorist operations, Turabi offered the organization refuge in Sudan. PEX 9 at 57; PEX 1 at ¶ 15; PEX 1-A at 2.

13. Bin Laden moved to Sudan in 1991, and lived there until 1996, when he was expelled from the country under international pressure. PEX 11[16] at 11.

14. Turabi and Bin Laden shared a common extremist ideological and religious outlook. PEX 9 at 61; PEX 1 at ¶ 43. Turabi envisioned a pan-Islamic force consisting of both Shiites and Sunnis to counterbalance Western powers militarily, economically, and politically. PEX 1 at ¶ 45. Bin Laden agreed to help Turabi in the regime's ongoing war against African Christian separatists in southern Sudan, and also to invest his wealth in the country's infrastructure. PEX 9 at 57. In exchange, Sudan provided Bin Laden's group with a sanctuary within which it could freely meet, organize, and train militants for future operations. Id.; PEX 1 at ¶ ¶ 12-13, 36, 45.

15. Starting in the early 1990s, Turabi and the Sudanese regime convened annual conferences in Sudan under the label " the Popular Arab and Islamic Conference." PEX 10 at 6; PEX 1 at ¶ 44. At these conferences, Bin Laden and other top leaders and operatives from the Palestinian Liberation Organization, Hamas, and Hezbollah, congregated to exchange information and plan terrorist activities. Id.

16. Since 1993, the United States has designated Sudan a state sponsor of terrorism. See http://www.state.gov/j/ct/list/c14151.htm (last visited Jan. 27, 2015).

B. General Support for Bin Laden and Al-Qaeda

1. Overview

17. Each year from 1997 through 2000, Sudan continued to serve as a meeting place, safe haven, and training hub for Al-Qaeda and other terrorist groups, including Lebanese Hizballah, Palestinian Islamic Jihad, Abu Nidal Organization, and Hamas.

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PEX 11 at 12; PEX 12[17] at 10; PEX 14[18] at 11; PEX 15[19] at 10.

18. Sudan's material support of Al-Qaeda, such as " (1) its provision of sanctuary and safe haven from 1991-1996; and (2) [the] technical training and support Sudanese military and intelligence forces provided al Qaeda throughout the 1990s; was indispensable for al Qaeda not just to survive but also to then develop the expertise, technical knowledge and wide network of contacts that allowed it to flourish as a terrorist organization and carry out the USS Cole bombing." PEX 1 at ¶ 83.

19. Al-Qaeda's time in Sudan from 1991 through 1996 was invaluable to the development of the terrorist organization:

Q So, Mr. Watson, as you can tell by the text, the 9/11 Commission has described how al-Qaeda flourished in Sudan. It says, " Bin Laden moved to Sudan in 1991 and set up a large and complex set of intertwined business and terrorist enterprises. In time, the former would encompass numerous companies and a global network of bank accounts and nongovernmental institutions." Later on in the text it says, " Meanwhile, al-Qaeda finance officers and top operatives used their position in bin Laden's businesses to acquire weapons, explosives and technical equipment for terrorist purposes." And then at 58 it says, " The groundwork for a true global terrorist network was being laid." Mr. Watson, do you agree with this assessment laid out in the 9/11's Commission's report?
A I do.
Q And the type of support that is described in the 9/11 Commission's report, what's the significance of having intertwined business and terrorist enterprises, allowing, you know, training for weapons, also acquiring weapons and explosives technical equipment, et cetera?
A It allowed him to expand the organization, make it better. It allowed them to have funds available through legitimate businesses. It gave them some credibility. It also allowed for the organization to be a safe place, because, at that point in time, he had been removed from Saudi Arabia. He had no country. And so he was allowed to operate with impunity there in Sudan for a number of years . . . .
Q And one of the things you mentioned is that you said it gave the organization credibility. What do you mean by that?
A The ability to issue statements; the ability to recruit people; the ability to set up training camps; the ability to travel in and out of places to identify potential targets, in my opinion.
Q And would having a safe place to meet, the ability to travel safely and freely, would this have allowed Al-Qaeda and Osama bin Laden -- would this have given them a way of shielding their activities from other law

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enforcement or intelligence agencies?
A Yeah. It's not like setting up shop in Leesburg, Virginia, where, you know, you would come under scrutiny of the Bureau or some federal agency. It's a foreign country, and a foreign country that was not the most favored, you know, looking toward the United States. So it was very difficult to operate in that environment as a U.S. Government representative.
Q So bin Laden is in a place where it's difficult for the U.S. Government to keep tabs on him. And in terms of the Sudanese government, is it accurate to say that bin Laden and al-Qaeda are also in a place where they don't have to worry about the interference of Sudanese authorities with their terrorist activities?
A That is correct.

[#40] at 108:6-110:11.

20. Even after Al-Qaeda was expelled from Sudan in 1996, Sudan continued to be a safe harbor for the organization, allowing the organization to " plan more freely." Id. at 112:5-113:12.

2. Financial Support

21. Bin Laden established several joint business ventures with the Sudanese regime that flourished upon his arrival in Khartoum in 1991. PEX 1 at ¶ 19; PEX 1-A at 2-3. He " also formed symbiotic business relationships with wealthy NIF members by undertaking civil infrastructure development projects on the regime's behalf." PEX 1 at ¶ 19. These projects included:

* Al-Hijrah for Construction and Development, Ltd., which built the Tahaddi [ ] road linking Khartoum with Port Sudan, as well as a modern international airport near Port Sudan.
* Taba Investment Company Ltd, an investment company.
* Wadi al-Aqiq Company, Ltd., an import-export firm that, in conjunction with Bin Laden's Taba Investment Company, Ltd., secured a near monopoly over Sudan's agricultural exports of gum, corn, sunflower, and sesame products in cooperation with prominent NIF members.
* Al-Themar al-Mubarak-ah Agriculture Company, Ltd., which grew to encompass large tracts of land near Khartoum and in eastern Sudan.
* Khartoum Tannery, a leather company, which was still operating as of May 4, 2004.
* Al Themar, a Sudanese agricultural company in which Bin Laden had a financial interest.
* The Blessed Fruits Company and al-Ikhlas, two companies that were involved in the production of honey, fruits and vegetables, and in which Bin Ladin also had a financial interest.
* Al Qudurat Transportation.

PEX 1 at ¶ 19; PEX 1-A at 2-3.

22. These businesses " allowed al-Qaeda to funnel money for terrorist activities through Sudanese banks and Sudanese-based legitimate businesses, therefore overcoming the difficulties in transferring funds the group would have otherwise faced." PEX 1 at ¶ 35. Accord PEX 1 at ¶ ¶ 21-35. Bin Laden maintained those interests even after his expulsion from Sudan. PEX 6[20] at 19-20.

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23. In addition, " Bin Ladin and wealthy NIF members [directly] capitalized Al-Shamal Islamic Bank in Khartoum" with Bin Laden personally investing $50 million in the bank. PEX 1 at ¶ ¶ 22-23, 25; PEX 1-A at 3.

3. Support for Training

24. " [B]y January 1994, Bin Laden had begun financing at least three terrorist training camps in northern Sudan--camp residents included Egyptian, Algerian, Tunisian, and Palestinian extremists--in cooperation with the NIF." PEX 1-A at 3. See also PEX 13[21] at 34.

25. Bin Laden's main training camp in Sudan was " a 20-acre site near Soba, 10 kilometers south of Khartoum." PEX 1 at ¶ 36.

26. In addition, " Bin Laden's Al-Hijrah for Construction and Development Company work[ed] directly with Sudanese military officials to transport and provision terrorists training in such camps." PEX 1-A at 3.

27. While Bin Laden and Al-Qaeda were in Sudan, they " were allowed to operate freely." PEX 1 ¶ 36.

4. Facilitation of Travel

28. In 1998, " Al-Zawaheri[22] and leaders of Sudanese, Eritrien, Ugandan, Yemeni and Egyptian Islamic groups . . . agreed to open Sudan's doors to international Islamic fundraising organizations and to facilitate the movement of extremists by providing them with Sudanese diplomatic passports." PEX 17 at ¶ 26.

29. An individual carrying a diplomatic passport was " immune from [most] laws and criminal process." [#40] at 116:5-6. Furthermore, " diplomatic passports have diplomatic pouches which are not authorized to be examined by the host country . . . [allowing its holder to transport] materials without government scrutiny or scrutiny at the borders." Id. at 116:19-21, 24-25.

30. When Bin Laden moved to Sudan, the Sudanese government provided Al-Qaeda members with Sudanese travel documentation, including 200 passports, which facilitated the movement of Al-Qaeda operatives in and out of Sudan. PEX 1 at ¶ ¶ 36, 41-42; PEX 11 at 17; PEX 12 at 11.

31. " In addition to providing some al-Qaeda operatives with new passports, Sudanese officials also made sure that al-Qaeda members traveling to Sudan with different passports could enter and leave the country without having their passports stamped." PEX 1 at ¶ 42.

32. " These officials would have been acting with the full knowledge and consent of the highest levels of the Sudanese government . . . because a stamp from Sudan (a country known for its support of terrorism) would have raised the attention of immigration officials in other countries." Id.

33. Significantly, Sudan also exempted Al-Qaeda and its members from paying any taxes or import duties, thus permitting it to bring containers into the country without inspection by customs officials. PEX 1 at ¶ 20.

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C. Specific Involvement in the Attack

34. Bin Laden and Al-Qaeda would not have been able to carry out the attack on the Cole without the support of the Sudanese defendants:

[T]he Sudan's material support of al Qaeda including, (1) its provision of sanctuary and safe haven from 1991-1996; and (2) technical training and support Sudanese military and intelligence forces provided al Qaeda throughout the 1990s; was indispensable for al Qaeda not just to survive but also to then develop the expertise, technical knowledge and wide network of contacts that allowed it to flourish as a terrorist organization and carry out the USS Cole bombing.

PEX 1 at ¶ 81.

IV. The Iranian Defendants

A. Background

35. In approximately 1991, Iran and Sudan wanted to foster coordination between Sunni and Shia Islamists, by forming a " tripartite front" against their common enemies, the United States and Israel. PEX 16[23] at 6-7. " The front would consist of the NIF, Iran, and Usama (Bin Laden)'s Islamic Army." Id. at 6. See also PEX 2 at ¶ 76 (describing the relationship between Iran, Hezbollah, and Al-Qaeda in the 1990s as one of " quite active cooperation" ).

36. " Eventually an agreement was reached to collaborate politically and militarily." PEX 16 at 7. Specifically, the parties agreed that " experience from Hizballah and Iran should be transferred to new nations/extremist groups who lack this expertise . . . [in order to] allow Islamic Army members to gain the necessary experience in terrorist operations." Id. at 8.

37. " At that [same] time, the Iranian government was providing very active assistance to the Sudanese government for its fighting in the civil war in the south of the country." PEX 2 at ¶ 41. In addition, " in 1991, the Sudanese government [ ] supported a conference of those resisting the Madrid conference launching Israeli-Arab peace talks, and both Iranian representatives and Bin Laden were active at this event." Id.

38. Ultimately, the relationshi¶ between Sudan and Iran in the 1990s offered Al-Qaeda the opportunity to build ties with Iranian officials, Hezbollah, and other terrorist organizations dedicated to attacking United States personnel, military targets, and citizens in the Middle East. See PEX 27[24] at 2-7; PEX 19[25] at 17-21; PEX 9 at 61.

39. Since 1984, the United States has designated Iran a state sponsor of terrorism. See http://www.state.gov/j/ct/list/c14151.htm (last visited Jan. 27, 2015).

B. General Support for Bin Laden and ...


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