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Foley v. Syrian Arab Republic

United States District Court, District of Columbia

April 13, 2017

VIRGINIA L. FOLEY, et al., Plaintiffs
SYRIAN ARAB REPUBLIC, et al., Defendants.


          COLLEEN KOLLAR-KOTELLY United States District Judge

         This case arises from the deaths of three Americans-Laurence Michael Foley, Sr., Keith Matthew Maupin and Kristian Menchaca-in Iraq and Jordan between 2002 and 2006. Plaintiffs-the estates and family members of the deceased-allege that all three were killed by a terrorist organization led by Abu Mus'ab al-Zarqawi (the “Zarqawi Terrorist Organization”). Proceeding under the Foreign Sovereign Immunities Act (“FSIA”), Plaintiffs allege that Defendants Syrian Arab Republic (“Syria”), Syrian Military Intelligence, Syrian President Bashar al-Assad and Syrian General Asif Shawkat, provided material support and resources to the Zarqawi Terrorist Organization and accordingly should be held liable for these deaths. The Court agrees.

         Defendants have not answered or otherwise participated in this litigation, with the exception of filing an opposition to a motion filed by Plaintiffs regarding the sufficiency of service. The case accordingly proceeded in a default setting. The Court held a liability hearing on November 16 and 17, 2016. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court now determines that Plaintiffs have established their claims by evidence satisfactory to the Court, and will accordingly GRANT default judgment against Defendants. The Court will refer the issue of damages to a Special Master.

         I. BACKGROUND

         Plaintiffs filed this lawsuit on April 8, 2011. Compl., ECF No. 1. An Amended Complaint was filed on September 13, 2011. Am. Compl., ECF No. 11. Plaintiffs then struggled for years to effectuate service because of the civil war in Syria and the attendant breakdown in diplomatic relations between that country and the United States. On the Court's order, between November 2011 and February 2015 Plaintiffs filed a series of status reports updating the Court on their efforts to effectuate service on Defendants. ECF Nos. 20-38, 44. On April 23, 2015, Plaintiffs moved this Court for an order that service had been completed under 28 U.S.C. § 1603(a)(3). ECF No. 48. Defendant Syrian Arab Republic filed an opposition to this Motion, the only pleading filed by any Defendant in this matter. ECF No. 49. On January 21, 2016, the Court granted Plaintiffs' motion. ECF No. 51 at 11. The Court found that Plaintiffs had accomplished service and ordered the Clerk of the Court to enter a default as to each Defendant pursuant to Fed.R.Civ.P. 55(a). Id. The Clerk of the Court entered default on January 22, 2016. ECF No. 52.

         The Court held a liability hearing on November 16 and 17, 2016, at which Plaintiffs offered documentary, photographic and video evidence, and presented the testimony of fact and expert witnesses. This hearing was limited to Defendants' liability-Plaintiffs were not required to present evidence of damages. At the close of the hearing Plaintiffs filed Proposed Findings of Fact and Conclusions of Law. ECF No. 71.


         The entry of default judgment is governed by Fed.R.Civ.P. 55. “The determination of whether a default judgment is appropriate is committed to the discretion of the trial court.” Hanley-Wood LLC v. Hanley Wood LLC, 783 F.Supp.2d 147, 150 (D.D.C. 2011) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)). Before granting default judgment, the Court must satisfy itself of its jurisdiction, and “[t]he party seeking default judgment has the burden of establishing both subject matter jurisdiction over the claims and personal jurisdiction over the defendants.” Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22, 33 (D.D.C. 2016).

         Under the FSIA specifically, this Court cannot enter default judgment against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e); see Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C. C i r. 2003) (“The court . . . has an obligation to satisfy itself that plaintiffs have established a right to relief.”). “[T]he FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide, ” Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014), and “[u]ncontroverted factual allegations that are supported by admissible evidence are taken as true, ” Thuneibat, 167 F.Supp.3d at 33.


         The following Findings of Fact recount horrific events. They detail the torture and assassination of three American citizens who were purposefully targeted because of the services they were performing for their country abroad. As discussed further below, in addition to expert testimony received by the Court, a family member of each of the deceased testified at the Court's liability hearing regarding the circumstances surrounding the deaths of their loved ones. The Court appreciates that giving that testimony was extremely difficult for each witness, as it required them to publicly revisit what was likely the most tragic event in their lives. The Court also acknowledges that, as Plaintiffs' counsel stated at the outset of the liability hearing, the current legal proceedings cannot make these family members whole again or even ease their pain. Plaintiffs represent that they had another purpose in bringing this suit. Plaintiffs state that they “would like to use this proceeding to send out a very clear message of deterrence” to those “who are contemplating funding or otherwise material[ly] supporting terrorist organizations that would murder United States citizens, particularly United States citizens who are killed in service to the United States.” The Court hopes that Plaintiffs find some solace in that purpose.

         A. Judicial Notice of Facts Found in Other Cases

         As a threshold matter the Court will grant Plaintiffs' [61] Motion for Judicial Notice (“Pls.' Mot.”). Plaintiffs ask this Court to take judicial notice of findings made in two similar cases brought against Syria, Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22 (D.D.C. 2016) and Gates v. Syrian Arab Republic, 580 F.Supp.2d 53 (D.D.C. 2008), aff'd, 646 F.3d 1 (D.C. Cir. 2011). Both cases found that Syria materially supported Zarqawi's Terrorist Organization during the timeframe that is relevant to this case. See Thuneibat, 167 F.Supp.3d at 36 (“The plaintiffs have supplied satisfactory proof that the defendants provided material support to Zarqawi and AQI”); Gates, 580 F.Supp.2d at 67 (“Syria in fact did provide material support and resources to Zarqawi and al-Qaeda in Iraq which contributed to hostage taking, torture, and extrajudicial killings”). Plaintiffs argue that the findings in those cases can serve as evidence of Syrian support for Zarqawi's organization in this case as well. Pls.' Mot. at 2. Plaintiffs concede that taking judicial notice of these findings does not conclusively establish the facts found in those cases. Id. at 5. They merely ask that the Court take notice of these findings and consider them alongside the evidence Plaintiffs have presented in this case. Id. at 6.

         The Court finds this approach appropriate and will take judicial notice of the requested findings. Under Federal Rule of Evidence 201, the Court “may judicially notice a fact that is not subject to reasonable dispute” because it “is generally known within the trial court's territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). “This ability to take notice of adjudicative facts extends to judicial notice of court records in related proceedings.” Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C. 2010) (citing cases). “Because of the multiplicity of FSIA-related litigation in this jurisdiction, Courts in this District have thus frequently taken judicial notice of earlier, related proceedings.” Id. Specific to the request here, “when a court has found facts relevant to a FSIA case involving material support to terrorist groups, courts in subsequent, related cases may ‘rely upon the evidence presented in earlier litigation . . . without necessitating the formality of having that evidence reproduced.'” Harrison v. Republic of Sudan, 882 F.Supp.2d 23, 31 (D.D.C. 2012). Moreover, courts have taken notice of facts found in earlier proceedings in this District even when those proceedings have taken place in front of a different judge. See Brewer v. Islamic Republic of Iran, 664 F.Supp.2d 43, 54 (D.D.C. 2009) (“[r]elying on the pleadings and the . . . findings of other judges in this jurisdiction”).

         “At the same time, taking notice of another court's finding of fact does not necessarily denote adoption or finding of that fact.” Harrison, 882 F.Supp.2d at 31. Instead, “courts in subsequent related cases [may] rely upon the evidence presented in earlier litigation, ” but must still “reach their own, independent findings of fact in the cases before them.” Rimkus, 750 F.Supp.2d at 172; see also Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51, 59 (D.D.C. 2010) (“The taking of judicial notice of the Peterson opinion, therefore, does not conclusively establish the facts found in Peterson for, or the liability of the defendants in, this case . . . . In rendering default judgment against defendants, the Court was . . . required to, and did, find facts and make legal conclusions anew.”).

         Accordingly, the Court GRANTS Plaintiffs' motion to take judicial notice of the findings in Thuneibat and Gates. However, although the Court has considered these findings, it has made its own independent findings of fact based on the evidence presented in this case. These findings now follow.

         B. The Court's Findings of Fact

         The Court's Findings of Fact are based on testimony presented at the liability hearing held in this matter on November 16 and 17, 2016, as well as evidence submitted at and after that hearing.[1] They are also supported, where appropriate, by the findings of fact made in Thuneibat and Gates. The Court's findings fall into two overarching categories: (1) the Zarqawi Terrorist Organization and Syria's material support for it, and (2) how that support resulted in the deaths of the three Americans in this case.

         1. Syria's Material Support for the Zarqawi Terrorist Organization

         The Court finds that Syria provided material support to the Zarqawi Terrorist Organization throughout the relevant time period-roughly 2002 through 2006. During this period, Syria lent support to a number of terrorist groups by, among other things, providing them safe haven, weaponry, financial support, and even allowing them to open headquarters within Syria. Schenker T2-116-17[2]; Ex. 39 (U.S. Dep't of State, Patterns of Global Terrorism), at 3 (“Syria continued to provide safehaven and support to several terrorist groups, some of which maintained training camps or other facilities on Syrian territory”); Ex. 46 (U.S. Dep't of State, Country Reports on Terrorism 2005), at 21 (“Syria was used as a facilitation hub for terrorist groups operating in Iraq”).[3]

         One particularly significant way that Syria provided support to such groups was by allowing them to freely move through Syria and into neighboring countries, such as Iraq and Jordan, for the express purpose of killing Americans. Schenker T2-116-17; Ex. 54 (Expert Report of David Schenker), at 5 (“Syria was involved in a systematic process of moving Al Qaida fighters to Iraq”). This support was not hidden: Syria allowed the opening of a “special interest section” in downtown Damascus, directly across the street from the United States Embassy, where individuals could sign up and board a bus to Baghdad to “wage the jihad” against Americans. Schenker T2-134. Syrian border checkpoints would allow foreign insurgents to pass through freely, stamping their passports with phrases such as “volunteer for jihad.” Schenker T2-136-39; Ex. 42 (2003 Statement of Paul Wolfowitz, Deputy Secretary of Defense to U.S. Senate Committee on Armed Services), at 12 (“Here is another one who came into Iraq through Syria, the same crossing point. The entry permit said ‘to join the Arab volunteers.'”). Aware of Syria's support, foreign fighters from various neighboring countries who sought to join the insurgency in Iraq would take extended routes so as to be able to enter through the Syrian-Iraqi border. Schenker T2-159-61; Ex. 48 (2007 Statement of Gen. David H. Petraeus to a Joint Hearing Before the Senate Committee on Armed Services and the House Committee on Foreign Affairs), at 55 (“the last Saudi foreign fighter we captured had actually had to take a bus to Damascus and then got into the network that eventually brought him into [Iraq]”). Congress officially recognized this support that Syria was providing to terrorist groups in the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003. Schenker T2-141-42. In that Act Congress declared that:

It is the sense of Congress that- . . . (2) the Government of Syria should-
(A) immediately and unconditionally stop facilitating transit from Syria to Iraq of individuals, military equipment, and all lethal items, except as authorized by the Coalition Provisional Authority or a representative, internationally recognized Iraqi government;
(B) cease its support for “volunteers” and terrorists who are traveling from and through Syria into Iraq to launch attacks; and
(C) undertake concrete, verifiable steps to deter such behavior and control the use of territory under Syrian control;

Ex. 43 (Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, Pub. L. No. 108-175, § 3(2), 117 Stat. 2482).

         As primarily relevant to this case, the support described above was crucial to the Zarqawi Terrorist Organization. The Zarqawi Terrorist Organization, led by Jordanian born Abu Mus'ab Al-Zarqawi, was a group dedicated to what it viewed as the earliest principles of Islam and committed to a strategy of fomenting unrest in Middle Eastern countries through terrorist acts with the goal of eventually establishing religious governance. Gartenstein-Ross T2-59-62.[4] Although effectively the same organization throughout, the Zarqawi Terrorist Organization operated under various names during the time period relevant to this case, including, among others, “Jamaat al-Tawhid wal-Jihad” (“JTJ”), “al-Qaeda in Iraq” (“AQI”) and “Mujahidin Shura Council” (“MSC”). Despite these name changes, Plaintiffs presented undisputed expert testimony that the Zarqawi Terrorist Organization's ideology, strategy and leadership remained consistent throughout this period. Gartenstein-Ross T2-59; Ex. 37 (Expert Report of Dr. Daveed Gartenstein-Ross), at 1 (“At no point from 1999-2007 did the Zarqawi organization undergo such a fundamental transformation that its various iterations during this period cannot be considered a continuation of one another.”). The Court accordingly continues to refer to this group uniformly as the Zarqawi Terrorist Organization.

         In addition to the types of support described generally above, Syria also allowed key Zarqawi officials to reside and operate within Syria during this period with apparent impunity. Schenker T2-150-51; Ex. 54 at 7 (“Because Syria was the leading node for AQI, several of Zarqawi's key deputies and supporters based their operations out of the state”). For example, Sulayman Khalid Darwish, a “close associate of Zarqawi” and a “member of the Advisory (Shura) Council of the Zarqawi organization, ” collected funds for Zarqawi in Syria and sent those funds-as well as suicide bombers-from within Syria to Zarqawi in Iraq. Schenker T2-151-53; Ex. 44 (U.S. Dep't of the Treasury, Treasury Designates Individual Financially Fueling Iraqi Insurgency, al Qaida) (“Sulayman Khalid Darwish, who is located in Syria, was designated under Executive Order 13224 for providing financial and material support to the al-Zarqawi Network . . .”). After Darwish's death, his successor, Badran Turki Hishan Al Mazidih, played a similar role for the Zarqawi Terrorist Organization, again from within Syria. Schenker T2-153-56; Ex. 52 (U.S. Dep't of the Treasury, Treasury Designates Members of Abu Ghadiyah's Network Facilitates Flow of Terrorists, Weapons, and Money from Syria to al Qaida in Iraq) (“Syrian-based Badran Turki Hishan Al Mazidih . . . runs the AQI facilitation network, which controls the flow of money, weapons, terrorist, and other resources through Syria into Iraq”).

         The Syrian government also had a number of direct ties to the Zarqawi Terrorist Organization. Schenker T2-129. For example, Abu Qaqa, a cleric who helped Zarqawi found AQI, ran a Syrian government school and was on the Syrian government's payroll. Schenker T2-129-30. Additionally, Fawzi Mutlaq Al Rawi was appointed by Defendant Assad to be the head of the Syrian wing of the Iraqi Ba'th party, and in that role went on to directly provide material support to AQI, including funding, weapons and suicide bombers. Schenker T2-130-33. Al Rawi met with Syrian intelligence director, Asif Shawkat, and evidence suggests that he acted under the direction of the Syrian state. Schenker T2-132; Ex. 50 (U.S. Dep't of the Treasury, Treasury Designates Individuals with Ties to Al Qaida, Former Regime) (“Al Rawi is supported financially by the Syrian Government, and has close ties to Syrian Intelligence” and has acted “[u]nder the authorization of the Syrian government.”).

         Finally, the Court is satisfied by Plaintiffs' showing that Syria's support for the Zarqawi Terrorist Organization was a matter of Syrian policy known and dictated from the highest levels, including Defendants Assad and Shawkat. During the relevant time period, the Syrian government had firm control throughout its country and was a world-class police state, in which nothing of political significance occurred without the knowledge and authorization of the state. Schenker T2-117, 122, 170. The movement of people throughout the country was tightly controlled and monitored. Schenker T2-148-50. Under these conditions, the support and safe haven given to the Zarqawi Terrorist Organization, which was a matter of sensitive foreign policy for Syria, could not have been accidental-it was instead a matter of Syrian policy, directed by Defendant Assad and Shawkat. Ex. 54 at 3 (“Syria was a world-class police state” and Syria's more than a dozen overlapping security agencies “had no discretion to act without authorization from Assad himself on issues of critical importance to the regime, such as state sponsorship of terrorists”); Ex. 62 (Supplemental Expert Report of David Schenker), ECF No. 73, at 5 (“Shawkat and Syrian Military Intelligence played a central role in the decision making to support [Zarqawi] and the operations necessary to actually supply support to Zarqawi and his organization”).

         In short, the Court finds that Syria, including all named Defendants, provided material support to the Zarqawi Terrorist Organization's terrorist activity throughout the time period at issue in this case. See Thuneibat, 167 F.Supp.3d at 28 (finding that “Zarqawi and AQI's efforts have been supported by Syria”); Gates, 580 F.Supp.2d at 59 (finding that ‚ÄúSyria supported Zarqawi and his organization by: (1) facilitating the recruitment and training of Zarqawi's followers and their transportation into Iraq; (2) harboring and ...

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