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Fraenkel v. Islamic Republic of Iran

United States District Court, District of Columbia

March 31, 2017

Abraham Ron Fraenkel, et al., Plaintiffs,
v.
Islamic Republic of Iran, et al., Defendants.

          OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         On a Thursday evening in June 2014 three young men, Yaakov Naftali Fraenkel, Gilad Michael Shaer, and Eyal Yifrach waited at a junction in Alon Shvut, Israel, to find a ride home. A car stopped to offer a ride and all three young men got in, expecting to be home soon. The vehicle's driver and other passenger had a different idea: they were members of Hamas looking for Israeli hostages to use as leverage with Israel to obtain the release of jailed Hamas members. But nothing went as planned that night and all three young men were not saved for ransom, but were almost immediately killed and buried by the Hamas kidnappers.

         The question raised by this lawsuit is whether any or all of The Islamic Republic of Iran, The Iranian Ministry of Information and Security, and The Syrian Arab Republic can be held liable for money damages to the family of Yaakov Naftali Fraenkel under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq (2012).

         I. PROCEDURAL POSTURE

         Plaintiffs are Abraham Ron Fraenkel, Rachel Devora Sprecher Fraenkel, the parents of Yaakov Naftali Fraenkel, and his siblings Tzvi Amitay Fraenkel, A.H.F., A.L.F., N.E.F., N.S.F., and S.R.F. Plaintiffs filed this action on July 9, 2015 against Defendants The Islamic Republic of Iran (Iran), The Iranian Ministry of Information and Security (MOIS), and The Syrian Arab Republic (Syria). Plaintiffs advance a cause of action under the FSIA, 28 U.S.C. § 1605A(c), as well as the following causes of action under state law: wrongful death, survival damages, intentional infliction of emotional distress, negligent infliction of emotional distress, civil conspiracy, and aiding and abetting. As between Iran and MOIS, Plaintiffs allege vicarious liability or respondeat superior liability.

         None of the Defendants filed an answer or otherwise appeared. The Court proceeded to a default setting as provided by § 1608(e), which requires a court to enter 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.” 28 U.S.C. § 1608(e). The Court held a two-day hearing on liability and damages beginning on December 6, 2016.[1] Plaintiffs presented evidence in the form of live testimony, affidavit, and original documentary and recorded evidence. Plaintiffs presented credible expert testimony from two experts concerning the assistance to Hamas[2] from Iran and MOIS; two experts concerning Syria's assistance to Hamas; a retired member of the Israel Defense Forces concerning the investigation into the kidnapping and death of Naftali Fraenkel, Gilad Shaer, and Eyal Yifrach; and a psychiatrist concerning the mental and physical effects of Naftali Fraenkel's death on his parents and siblings. From the entire record, the Court makes the following findings of fact and conclusions of law.

         II. FINDINGS OF FACT

         A. The Kidnapping and Murder of Naftali Fraenkel

         1. Yaakov Naftali Fraenkel was sixteen years old in June 2014 and attended boarding school at Mekor Chaim in Gush Etzion. His family lived in the Nofa Ayalon settlement. Ex. 12, Declaration of Abraham Ron Fraenkel ¶¶ 2, 5 (A. Fraenkel Decl.).

         2. Naftali is survived by his parents and six siblings. A. Fraenkel T-1-90.

         3. Naftali was a talented student, taking advanced courses in sciences and other subjects. R. Fraenkel T-1-32-34; A. Fraenkel T-1-106. He was also a skilled musician and played the guitar and sang for his family, especially on the Sabbath. R. Fraenkel T-1-32-33, 36, 40; see also Exs. 9-A16 and 9-B (photograph and video of Naftali); A. Fraenkel Decl. ¶ 42.

         4. Naftali traveled home to Nofa Ayalon from school on the weekends and at the end of every term. R. Fraenkel T-1-10.

         5. On Thursday, June 12, 2014, Naftali sent his parents a text telling them he was coming home a day early from school. Id. at 10; A. Fraenkel T-1-90-91. Naftali waited with a friend from school, Gilad Shaer, and another young man, Eyal Yifrach, at a junction in Alon Shvut to hitch a ride to his home in Nofa Ayalon. Spitzen T-2-9-10; Ex. 21, Declaration of Arieh Dan Spitzen (Spitzen Decl.) ¶ 21; see also A. Fraenkel T-1-92. It was common for students and other individuals to wait for rides at that junction.

         6. A car picked up Naftali, Gilad, and Eyal around 10:00 p.m. from the hitchhiking post in Alon Shvut. Spitzen T-2-9-10. There were two men already in the car, the driver and a passenger. Id. at 10.

         7. Immediately after the three young men entered the car, one of the terrorists brandished a gun and told them they were kidnapped, but to be calm and they would not be hurt. Id.

         8. Around 10:30 p.m. emergency services received a phone call from Gilad. The police were able to match Gilad's phone number with the record of the emergency call. Id. On the call a voice is audible, most likely Gilad, saying the young men had been kidnapped; a voice could also be heard speaking in Arabic and Hebrew and saying “put your head down”; there was music in the background; and then sounds like muffled gunshots and a person moaning in physical pain. Id. at 10-11; R. Fraenkel T-1-17; A. Fraenkel T-1-96-99; Ex. 26 (audio-recording of emergency call).

         9. The Fraenkels expected Naftali to arrive home late, which was not unusual. R. Fraenkel T-1-10-11. Around 3:30 a.m., Mr. and Mrs. Fraenkel were awakened by their daughter A.L., because someone was banging on the front door. Id. at 11. They opened the door to find the police, who were looking for Gilad, Naftali's classmate, because Gilad had never come home that night and his parents thought he might have stayed with the Fraenkels. Id. After looking in Naftali's room, the parents discovered that Naftali was also missing. Id.

         10. Within hours of learning the young men were missing, the Israeli police became aware of the phone call made by Gilad to emergency services. Id. at 16; see also Ex. 26.

         11. The police were able to trace the cell phone belonging to Gilad to its last known location in the Hebron region. R. Fraenkel T-1-12. Hebron is an area “populated mostly by Arabs and some of which are very hostile to Israeli citizens.” Id. at 13.

         12. Eighteen days of massive searching for the three young men ensued. On June 30, 2014 their bodies were found in a parcel of land called Hirbet Aranbeh, which belonged to Hussam Ali Hasan al-Qawasmeh. Spitzen T-2-13-14; A. Fraenkel T-1-93. Hussam al- Qawasmeh was the head of a Hamas cell within the Izz al-Din al-Qassam Brigades called the Hussam Qawasmeh Brigade. See Spitzen Decl. ¶¶ 35-38.

         13. Also around the time of the kidnapping, the families of two known Hamas members went to the Palestinian police to inform them that the two Hamas members were missing: Marwan Sa'di Abd al-Afu al-Qawasmeh and Amer Omar Abd al-Qadar Abu Aisha. Spitzen T-2-16-17, 19-20.

         14. Hamas “is an arm of the Muslin Brotherhood” that believes “the land of Palestine[, ] which is for all purposes [] where Israel sits and also where the Palestine authority sits[, ] is a Muslim land that needs to be under Muslim rule, and a fundamentalist, Muslim rule, from the Muslim Brotherhood.” Spitzen T-1-125.

         15. Hamas “believe[s] in the elimination of Israel, ” Id. at 125-26, and to achieve that goal engages in education, indoctrination, and terrorism. Acts of terror are normally conducted through the operative branch of Hamas known as the Izz al-Din al-Qassam Brigades. Id. at 126.

         16. Hamas also engages in charitable outreach through an entity called the Al-Nur Prisoner Society. Al-Nur provides charitable funds to support the families of Hamas members in prison as a consequence of their participation in Hamas, as well as “the families of terrorist[s] who were killed during actions.” Id. at 128.

         17. The owner of the land where the bodies were found, Hussam Ali Hasan al-Qawasmeh, was the head of the cell that planned and carried out the kidnapping and murder of Naftali, Gilad, and Eyal. Spitzen T-2-7-8. Hussam al-Qawasmeh was apprehended by the Israeli police and interrogated about the crimes. Hussam al-Qawasmeh provided a statement to the police. In his statement he told the police that the intention was to kidnap a single person and hold that person for ransom to secure the release of Hamas sympathizers, but the young men were killed because they resisted. Id. at 11, 18, 22-23.

         18. Hussam al-Qawasmeh also informed police that Abu Aisha was the driver of the vehicle that picked up the three young men in Alon Shvut. Id. at 20. Marwan al-Qawasmeh was the other individual in the car. Id. at 20-21.

         19. Funding for the kidnapping was provided by Hussam al-Qawasmeh's brother, Mahmoud Ali Hasan al-Qawasmeh. Id. at 21-22.

         20. The weapons used were purchased by Hussam al-Qawasmeh from Adnar Muhammed Eid Izzat Zaru. Id. at 25.

         21. Immediately after the kidnapping and murder of the three young men, Abu Aisha and Marwan al-Qawasmeh sought shelter from Hussam al-Qawasmeh and requested his assistance in burying the bodies. Id. at 26-27. Hussam al-Qawasmeh and Marwan al-Qawasmeh loaded the bodies into another car and Hussam al-Qawasmeh drove them to his land in Hirbet Aranbeh for burial. Id. at 27. Marwan al-Qawasmeh and Abu Aisha then went into hiding in Hebron. Id. One of the locations where the two men hid was owned by Arafat Ibrahim Muhamad al-Qawasmeh. Id. at 28.

         22. On August 20, 2014, Hamas officially took responsibility for the kidnapping and murder of Naftali, Gilad, and Eyal by way of a press conference in Istanbul. The spokesperson for Hamas was Saleh Muhamed Suleiman al-Arouri. Id. at 28-29; see also Ex. 23 (recording of Hamas press conference).

         B. Iran and MOIS's Role in Assisting Hamas in Israel

         23. Plaintiffs presented expert witness testimony concerning the assistance of Iran and MOIS to Hamas in Israel. From this evidence, certain conclusions are clear. Iran and MOIS supported Hamas by: (1) facilitating recruitment, training, and safe haven and (2) providing financial assistance.

         24. “The Iranian regime loudly proclaims its right to support what they describe as resistance acts and what the governments in the region and government[]s in Europe and the U.S. government describe as terrorism because it involve[s] attacks on unarmed civilians.” Clawson T-2-123-24.

         25. “Iran has been described in the U.S. Government for more than 20 years as the principal state sponsor of terrorism globally and Iran has provided generous financial assistance and is providing training and provided a lot of different types of weapons.” Id. at 124.

         26. Since 1984, Iran has been on the U.S. State Department's list of state sponsors of terrorism. See Ex. 40, Declaration of Patrick L. Clawson (Clawson Decl.) ¶ 31.

         27. Iranian support for Hamas began to wane in 2012, but did not stop completely. Levitt T-2-116-117. Iranian support for terrorism by Hamas increased again in 2013 and 2014. Clawson T-2-125; see also Ex. 34, Declaration of Dr. Matthew Levitt (Levitt Decl.) ¶¶ 41, 60 (“The U.S. State Department's Country Report on Terrorism 2014 notes that Iran is not shy about its willingness to finance Hamas. ‘Since the conclusion of [Operation Protective Edge], ' the report notes, ‘Iranian governmental officials have publicly stated their willingness to resume Iran's military support of Hamas.' The report goes on to note that ‘historically, Hamas has received funding, weapons, and training from Iran.'”) (quoting Country Reports on Terrorism 2014, United States Department of State, Bureau of Counterterrorism (June 2015), available at https://www.state.gov/ documents/organization/239631.pdf (last visited Mar. 29, 2017)).

         1. Facilitating in the recruitment, training, and safe haven of Hamas members

         28. Iranian support for Hamas includes training, intelligence support, and safe haven of individuals through political cover. Levitt T-2-115.

         29. Political cover comes in the form of public affirmation of the goals and ideology of Hamas. Id. “Iran is very vocal about it[s] belief that Hamas is in the right and because it is in its terminology fighting occupation, all means of fighting said occupation are legitimate[;] and [Iran] tries to build up support for [Hamas] within the region and within Muslim countries and to protect it from opposition of political circles.” Id.

         30. Iran and its leaders are very vocal about their support for Hamas and its anti-Israel activities. Levitt Decl. ¶¶ 41-43, 61. Hamas is also vocal in recognizing and thanking Iran for its support. Id. ¶¶ 45-47, 62.

         31. As early as 2007, Israeli security officers noted the importance of Iran in training Hamas operatives. Clawson Decl. ¶ 41 (noting Hamas dispatched people to Iran for months or years of training).

         2. Providing financial support to Hamas

         32. Iran's primary mode of financial support to Hamas has come through the provision of funds and weapons. Levitt T-2-115. It is estimated that Iran has most likely provided hundreds of millions of dollars to Hamas. Id.; see also Levitt Decl. ¶ 39.

         33. Hamas has received much of its revenue through state sponsorship, including from Iran. Levitt T-2-111. Iran provides funds to Hamas's charitable organizations, such as the Al-Nur Prisoner Society, as a means to launder and process the money to Hamas for use in the West Bank and the Gaza Strip. Id. at 111-13; see also Levitt Decl. ¶ 36.

         34. Based on a 2015 State Department report, Iran was funding Hamas in 2013 and 2014. Levitt T-2-118; see also Levitt Decl. ¶¶ 63, 67. Additionally, in March 2014, the Israeli Navy seized a ship, the Klos-C, that was smuggling weapons from Iran to the Gaza Strip for use by Hamas. Levitt T-2-118-19; see also Clawson Decl. ¶ 43.

         35. Monetary support from Iran is also forwarded directly by MOIS. Levitt Decl. ¶ 49. MOIS is “the successor agency to [Iran's] respected spy agency called SAVAK, run by the Shah.” Clawson Decl. ¶ 21.

         36. Iran has used MOIS to facilitate and conduct terrorist attacks and funnel weapons and finances to terrorist groups through diplomatic pouches. Id. ¶ 24 (citing Patterns of Global Terrorism 1990, United States Department of State, Office of the Coordinator for Counterterrorism (April 29, 1991), available at https://fas.org/irp/threat/ terror90/ (last visited Mar. 29, 2017)).

         37. A Canadian Secret Intelligence Service report from 2002 noted that the Palestinian police discovered a direct transfer of $35 million to Hamas from MOIS. See Levitt Decl. ¶ 49 (citing Terrorist ...


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