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Colvin v. Syrian Arab Republic

United States District Court, District of Columbia

January 30, 2019

CATHLEEN COLVIN, et al., Plaintiffs,
v.
SYRIAN ARAB REPUBLIC, Defendant.

          AMENDED MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE.

         This case arises out of an intense artillery assault on the Baba Amr Media Center in Homs, Syria. Among those that died in the assault was Marie Colvin (“Colvin”), an American war journalist hailed by many as the greatest war correspondent of her generation, who was there covering the war between the Syrian government and rebel groups. Compl. [Dkt. # 1] ¶¶ 1, 21, 53. In their complaint, plaintiffs assert that Colvin was the victim of a targeted government policy to surveil, capture, and even kill journalists to prevent reporting on the Syrian government's suppression of the political opposition. Id. ¶¶ 43, 47, 79. In a comprehensive intelligence gathering effort, the Syrian government discovered that foreign journalists were broadcasting reports from a Media Center in Baba Amr. Id. ¶¶ 63-64. When the Syrian military uncovered the location of the Media Center, it launched an artillery attack against it, for the purpose of killing the journalists inside. Id. ¶¶ 65-71. Colvin was killed, as was a French photographer, Remi Ochlik. Id. ¶ 68. Other journalists, media personnel, and Syrian activists were wounded. Id.

         Colvin's youngest sister, Cathleen Colvin, [1] niece Justine Araya-Colvin, and nephew Christopher Araya-Colvin, [2] (collectively, “plaintiffs”) bring this case against the Syrian Arab Republic (“Syria”), asserting that Colvin's death constitutes an extrajudicial killing in violation of the Foreign Sovereign Immunities Act (“FSIA”). See Compl. ¶¶ 81-91. Plaintiffs effectuated service on February 6, 2017, see Affidavit Regarding Service [Dkt. # 28] (“Service Aff.”), and on July 11, 2017 the Clerk of the Court entered default against Syria. See Clerk's Entry of Default [Dkt. # 31] (“Default Entry”). Now pending before the Court is plaintiffs' motion for default judgment. Because the Court finds that it has both personal and subject matter jurisdiction, and that plaintiffs have demonstrated with a satisfactory amount of evidence that Syria is liable for Colvin's death, the Court will grant plaintiffs' motion for default judgment and enter judgment in the amount of $302, 511, 836.00.

         BACKGROUND

         This section details the factual background leading up to the attack and Marie Colvin's death. The summary below is based on allegations in the complaint, reports submitted by experts on Syria, [3] and declarations from individuals including defectors from the Syrian government, activists who have personal knowledge of the relevant events, and those present at the attack.[4] The plaintiffs' briefing, with almost 1000 pages of attached exhibits, declarations, and expert reports, was comprehensive. Thus, an evidentiary hearing is unnecessary.

         I. Syria's Political Climate in 2011

         A. The Syrian Government's Response to the Arab Spring

         Beginning in March 2011, Syria began to experience the effects of the “Arab Spring” - a wave of protests sweeping through the Middle East and North Africa against authoritarian governments. Brown Rpt. ¶¶ 24-26; Ford Rpt. ¶¶ 29-30; Compl. ¶ 25; Pls.' Mem. in Supp. of its Mot. for Default J. [Dkt. # 42-1] (“Pls.' Mem.”) at 4. The Arab Spring prompted both a nonviolent movement as well as an armed insurrection, calling for government change and an end to corruption. Pls.' Mem. at 4; Ford Rpt. ¶ 28.

         The Syrian government responded with a strategy to quash the dissent using military and intelligence forces, coordinated by a group established by President Bashar al-Assad called the Central Crisis Management Cell (“CCMC”). Pls.' Mem. at 4; Brown Rpt. ¶¶ 44-45. The CCMC was the highest national security body in the Syrian government, and it was comprised of senior members of the government, included the Minister of Defense, Deputy Minister of Defense, Minister of Interior, heads of the four Syrian intelligence agencies, and Maher al-Assad, brother of President al-Assad and commander of the Fourth Division of the Syrian Army. Brown Rpt. ¶¶ 26, 46; Barakat Decl. ¶¶ 11-12. Operating out of Damascus, the CCMC gathered all of the military and intelligence reports from across Syria regarding the political opposition. Brown Rpt. ¶¶ 44, 47-48; Barakat Decl. ¶ 10, Compl. ¶ 27.

         The CCMC used the reports it received from regional intelligence committees to inform President al-Assad's anti-opposition strategy. Barakat Decl. ¶ 15. Armed with information, the Syrian government engaged in widespread suppression of demonstrators and rebel groups, Compl. ¶ 28, and thousands were killed, detained, tortured, or kidnapped. Pls.' Mem. at 5; Ford Rpt. ¶¶ 37-40. The violence led to the formation of an armed opposition, called the Free Syrian Army (“FSA”), which consisted of civilians and defectors from the Syrian military and government. Ford Rpt. ¶ 36. By the end of 2011, the clash between the government and the FSA sent Syria into a full-scale armed conflict. Brown Rpt. ¶¶ 181-85; Kaye Rpt. ¶ 32.

         B. Suppression of the Media and the Rise of the Independent Media

         Suppression of traditional forms of media led to the rise of “independent media, ” in which “citizen journalists” disseminated news through social media networks. Salah Decl. ¶¶ 17-19; Kaye Rpt. ¶¶ 12-13. Babr Amr, a district in the city of Homs, was “the heart of the independent media movement.” Pls.' Mem. at 6. There, a local activist named Khaled Abu Salah (a pseudonym he used to protect his identity) and a group of citizen journalists formed the Baba Amr Media Center, where they would document and broadcast demonstrations occurring throughout the country and the government's response, using proxy internet servers to hide their location. Salah Decl. ¶¶ 17-20; Doe Decl. ¶¶ 7-10. These individuals were not part of the formal opposition, and they did not participate in the hostilities. Salah Decl. ¶ 23.

         The Syrian government considered media activists to be the biggest threat to the regime, because it was through the media that demonstrators could organize protests. Barakat Decl. ¶¶ 30- 32. Thus, media activists and journalists became high priority targets. Ford Rpt. ¶¶ 62-64 (detailing examples of arrests, disappearances, and deaths of journalists in 2011 and 2012); Ulysses Decl. ¶ 14. In August 2011, the CCMC issued orders to government forces to “[l]aunch daily joint security-military campaigns” against “those who tarnish the image of Syria in foreign media and international organizations.” Brown Rpt. ¶¶ 173-77. This policy resulted in a pattern and practice of targeting journalists and other media personnel, “subjecting them to . . . detention, torture, forced disappearance, extrajudicial killing, and other abuses.” Kaye Rpt. ¶ 30; see Ford Rpt. ¶ 59; Ulysses Decl. ¶ 14.

         C. The Government's Focus on Baba Amr and its Media Center

         By the end of 2011, “Homs had become a key center” of the revolution, and “intelligence services in Homs were tasked with suppressing the opposition movement and ending the massive anti-government protests.” Ulysses Decl. ¶ 8. The Syrian government formed a committee with the sole purpose of coordinating the military and intelligence operations against the opposition in Homs, called the Homs Military Security Committee (“HMSC”).[5] Id. ¶ 9. A leader of the HMSC, Major General Rafiq Shahadah, was involved in coordinating military and intelligence operations in the country's first battle of the Civil War: the siege of Baba Amr. Id. ¶ 24; Brown Rpt. ¶¶ 212- 13. Baba Amr became a focal point in the war because of its “very active media center.” Ulysses Decl. ¶ 25.

         From December 2011 to February 2012, the CCMC directed the HMSC to isolate Baba Amr. Brown Rpt. ¶¶ 256-59 (“[T]he CCMC instructed that military and security commanders were to . . . wear[] down and drain[] the enemy.”). Military surrounded the neighborhood, cutting off telecommunications, electricity, and food and water supplies. Ulysses Decl. ¶ 27. To protect themselves and civilians, rebel groups established a defensive perimeter around the neighborhood. Id. ¶¶ 26, 28; Doe Decl. ¶ 12; Brown Rpt. ¶¶ 252-54. The Syrian military shelled “the neighborhood on a daily basis with various forms of artillery, including . . . rocket launcher systems . . . and . . . mortars.” Ulysses Decl. ¶¶ 29-30; see Salah Decl. ¶¶ 29-30 (“It was the most intense shelling I had ever experienced. It was constant.”); Doe Decl. ¶ 16 (“The shelling was systematic, it happened every day.”); Nouar Decl. ¶ 20 (“We visited this neighborhood every day, and every day we observed bombardments and sniper fire.”). The level of violence was extreme - “bombs were being fired into densely populated areas, ” and snipers were “targeting and killing small children, women and other unarmed civilians.” Brown Rpt. ¶¶ 261-62. The government's “official line was that Baba Amr was full of terrorists.” Ulysses Decl. ¶ 32; see Nouar Decl. ¶¶ 27- 32 (describing conversations with Syrian government officials where they referred to media activists as terrorists).

         Through intelligence sources, such as drone surveillance and informants, the Syrian government learned that media activists had smuggled in satellite transmitters that gave them access to the internet, and foreign journalists in Baba Amr were “reporting on the siege, uploading videos to the Internet, and talking to international news agencies like CNN and al-Jazeera.” Ulysses Decl. ¶ 33.

         II. The Death of Marie Colvin

         A. Marie Colvin and Her Assignment in Homs, Syria

         Marie Colvin was a highly respected American war journalist, revered for her courage in reporting the humanitarian crises that result from war. Colvin Decl. ¶¶ 16-18. “Marie viewed it as her job to make the world aware of the impact war had on civilians, despite the risk. Occasionally, she also viewed it as her job to take action herself.” Id. ¶ 18. She spent over twenty- five years writing for the British newspaper, The Sunday Times, covering conflict zones in Iraq, Chechnya, the Balkans, East Timor, Sri Lanka, Sierra Leone, and Libya. Compl. ¶ 21. She was in Baghdad through the Gulf War bombing in 1991, witnessed the American bombing of Tripoli in 1992, and interviewed both Muammar Gaddafi of Libya and Yasser Arafat of Palestine. Witherow Decl. ¶ 22. When a grenade blinded her in one eye in Sri Lanka, she became known for wearing a signature black eye patch. Id. ¶ 24. Colvin received dozens of accolades for her reporting, including the British Press Awards' Foreign Reporter of the Year (2000, 2009, and 2012), the Foreign Press Association's Journalist of the Year (2000), and the International Women's Media Foundation's Courage in Journalism Award (2000). Colvin Decl. ¶ 26, n.18; Witherow Decl. ¶ 25. Her assignment in Syria was the last she had with The Sunday Times.

         Colvin and British photographer, Paul Conroy, traveled together to Syria on February 13, 2012. Conroy Decl. ¶ 6. They entered the country with the help of members of the FSA and a pacifist named Wael Fayez al-Omar. Id.; al-Omar Decl. ¶ 15. Their journey took two days; they traveled to Homs through a smuggler's route, and in Homs, they used an underground water tunnel to reach the Baba Amr Media Center. Conroy Decl. ¶¶ 9, 11; al-Omar Decl. ¶¶ 15-16. The Media Center was located in an apartment building, offering foreign journalists a place to sleep and report. Conroy Decl. ¶ 13; al-Omar Decl. ¶ 16; Salah Decl. ¶ 20.

         On February 16, the day after they arrived, Colvin and Conroy could hear the sound of randomized shelling throughout the neighborhood for most of the day. Conroy Decl. ¶ 14; al-Omar Decl. ¶ 17. Nonetheless, Colvin wanted to see the area and speak with the locals. With al-Omar’s help, she visited an underground storage facility sheltering locals and an improvised field hospital located in an apartment building. Conroy Decl. ¶¶ 15–17; al-Omar Decl. ¶ 17.

         That evening, rumors of an imminent invasion and possible gas attack forced Colvin and others to flee Baba Amr using the same tunnels through which they had arrived. Conroy Decl. ¶ 18; al-Omar Decl. ¶ 18. Colvin was able to dictate a story to The Sunday Times via satellite telephone. Conroy Decl. ¶ 19. The rumored invasion never transpired, and Colvin wanted to return to Baba Amr, despite being told that the government would likely capture the neighborhood. Pls.' Mem. at 14; al-Omar Decl. ¶ 19. Colvin and Conroy returned to the Media Center on February 20, 2012, but because the shelling on the district was even more intense than before, they were unable to explore the neighborhood. Al-Omar Decl. ¶ 21.

         B. Government Involvement in the Attack on the Baba Amr Media Center

         The HMSC was aware that foreign journalists were traveling to Baba Amr and made it a priority to pin down the location of the Media Center. Ulysses Decl. ¶¶ 34-38. In January 2011, a memorandum circulated within the HMSC stating that it was aware that foreign journalists were entering Syria and Homs and directed military to “take all necessary measures” to capture them. Id. ¶¶ 35-36.

         To trace the location of the journalists, Major General Shahadah directed intelligence to intercept the communications coming out of Baba Amr. Id. ¶ 39. A device that could intercept broadcasts from the signals of satellite phones was installed on a vehicle circling Baba Amr, and informants were recruited to spy on the Media Center to ascertain its location. Id. ¶¶ 39-40.

         On February 21, 2012, the eve of the attack, an informant contacted XXXXX, a “middle-man” in charge of gathering intelligence for the HMSC. Id. ¶ 51. After XXXXX spoke to the informant, XXXXX, telling XXXXX that XXXXX had information on the location of the Media Center. Id. ¶ 53. XXXXX the boss, ” and sometime after that XXXXX, Major General Shahadah XXXXX, asking him and the informant to meet with him. Id. ¶¶ 53-54. After the meeting, the information was passed to the Computer and Signals Section of the Syrian Military Intelligence Department, to cross-check the purported location of the Media Center with the origination of the intercepted broadcasts. Id. ¶ 58. Later, was XXXXX told that there had been a broadcast “from the same location.” Id. ¶ 60. That same evening, Colvin had given live interviews from within Baba Amr to BBC, CNN, and U.K. Channel 4. Witherow Decl. ¶ 14.

         C. The Attack on the Baba Amr Media Center

          On the morning of February 22, 2012, Colvin, Conroy, and their guide al-Omar awoke to the sound of a series of blasts. Conroy Decl. ¶ 22. Both Conroy and al-Omar realized that the shelling was different than the usual daily shelling that was scattered in nature and occurred in waves. This shelling was concentrated in one area and had a pattern recognizable as an artillery technique for targeting a specific location, called “bracketing.” Id. ¶¶ 23-24; al-Omar Decl. ¶ 23 (“I recognized this as an artillery targeting method I had learned in the [Syrian] army: we had been trained to direct multiple salvos of fire at a specific target and to correct course between salvos until the target was successfully hit.”). The rockets also made a whistling sound that al-Omar recognized as the sound made by rockets used by the Syrian army. Al-Omar Decl. ¶ 24.

         During the onslaught of rockets, journalists and activists ran to evacuate through the front hall of the Media Center. Id. ¶ 25. The evacuation was conducted in pairs: each pair would first run into the foyer of the building and then across the street, toward a building with an underground shelter. Id. ¶ 26. Al-Omar, Colvin, and French photographer, Remi Ochlik, held hands, awaiting their turn to run, but because they were a group of three, al-Omar was separated from them. Id. ¶ 27. Colvin and Ochlik started to run out of the building. But, before they could, a rocket hit the front of Media Center, and its blast killed both Colvin and Ochlik. Conroy Decl. ¶ 27. Those who were not in the front of the building - Conroy, al-Omar, and another journalist, Edith Bouvier - were injured by the shock wave. Conroy Decl. ¶ 26; al-Omar Decl. ¶ 28.

         Incoming artillery fire continued for more than seventeen minutes. Doe Decl. ¶¶ 25-27. The shelling eventually ceased, and Javier Espinosa Robles (a Spanish journalist who had made it across the street to the shelter) took a photo of the damaged façade of the Media Center showing its complete devastation. Robles Decl. ¶ 19, Ex. A. Salah, a founding member of the Media Center who had been in a nearby building during the attack arrived shortly after and dictated his observations to a cameraman filming the bodies of Colvin and Ochlik lying in rubble. Salah Decl. ¶¶ 38-39. Those that survived, Conroy, Bouvier, and al-Omar, were taken to a makeshift field clinic for treatment. Robles Decl. ¶ 22; Conroy Decl. ¶ 31. Eventually, they were able to leave the country with the help of the FSA. Robles Decl. ¶ 24; Conroy Decl. ¶¶ 32-33.

         D. The Celebration of the Attack by Syrian Government Officials

         After the attack, the Homs Security Chief Major General Shahadah convened a group of military and intelligence officers to celebrate their success in locating and attacking the Media Center. Ulysses Decl. ¶ 62. Major General Shahadah thanked and congratulated them, and they drank to a successful operation. Id. ¶¶ 63-65. They specifically spoke about Colvin's death; Major General Shahadah stated, “Marie Colvin was a dog and now she's dead. Let the Americans help her now.” Id. ¶ 65. XXXXX Maher al-Assad, the president's brother and commander of the Fourth Division of the Syrian Army, gave him a new car as a reward for the successful attack. Id. ¶ 66. Major General Shahadah was later promoted and named the head of the Syrian Military Intelligence Department. Id. ¶ 67.

         III. Procedural History

         Plaintiffs brought this case against Syria on July 9, 2016 asserting that defendant committed an extrajudicial killing in violation of the FSIA. Compl. ¶¶ 81-91. After almost two years and several attempts to serve the defendant, plaintiffs filed proof of service. See Service Aff. The Clerk of the Court entered default against defendant on July 11, 2017. See Default Entry. On March 22, 2018, plaintiffs moved for default judgment. Pls.' Mot. for Default J. [Dkt. # 42].

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 55(a) provides that the Clerk of the Court must enter a party's default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.”

         Under the Foreign Sovereign Immunities Act, a court may not 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); Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1047 (D.C. Cir. 2014) (“[W]hen the defendant State fails to appear and the plaintiff seeks a default judgment, FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide, requiring only that it be ‘satisfactory to the court.'”). Default judgment under the FSIA is identical to the standard for entry of default judgments against the United States under Federal Rule of Civil Procedure 55(d). Hill v. Republic of Iraq, 328 F.3d 680, 683 (D.C. Cir. 2003), quoting H.R. Rep. No. 94-1487, at 26 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6625.

         Given the considerations of sovereign immunity that pertain notwithstanding the default, a court must carefully scrutinize the plaintiff's allegations and “may not unquestioningly accept a complaint's unsupported allegations as true.” Reed v. Islamic Republic of Iran, 845 F.Supp.2d 204, 211 (D.D.C. 2012), citing Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C. 2010). In a default proceeding under the FSIA, plaintiff may establish proof through testimony, documentation, and affidavits. Spencer v. Islamic Republic of Iran, 922 F.Supp.2d 108, 109 (D.D.C. 2013), citing Blais v. Islamic Republic of Iran, 459 F.Supp.2d 40, 53 (D.D.C. 2006).

         ANALYSIS

         I. The Court has jurisdiction over plaintiff's claims under the FSIA.

         At the outset, plaintiffs must demonstrate that the Court has jurisdiction to hear their claims and that Syria is not immune from suit. The Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1611, is “the sole basis for obtaining jurisdiction over a foreign state in our courts.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). A foreign state is typically immune from jurisdiction in U.S. courts. See 28 U.S.C. § 1604. But subject matter jurisdiction may exist if the defendant's conduct falls within one of the statutory exceptions to immunity. See id.; 28 U.S.C. § 1330(a). If the foreign state is not immune, a plaintiff can establish personal jurisdiction over the defendant if the plaintiff executes service in accordance with 28 U.S.C. § 1608. See 28 U.S.C. § 1330(b). Here, the ...


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