United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE
January 2016, Waiel El-Maadawy, Amr Mohamed, and Russell
Frost-U.S. citizens serving as private defense contractors in
Baghdad, Iraq-were kidnapped and detained for a month by the
militant group Saraya al-Salam. That group was controlled by
Muqtada al-Sadr, an Iraqi insurgent, politician, and cleric,
and supported by Iran. El-Maadawy, Mohamed, and Frost sued
Iran for its material support for their kidnapping under the
terrorism exception to the Foreign Sovereign Immunities Act.
After proper service and an entry of default, they moved for
default judgment against Iran. For the reasons explained
below, the Court will grant Plaintiffs' Motions for
Default Judgment (ECF Nos. 27, 32).
Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §
1602 et seq., provides a general grant of immunity
to foreign governments in U.S. courts, id. §
1604. The FSIA also includes many exceptions to that
immunity. See Id. §§ 1605, 1605A. The
state-sponsored terrorism exception, id. §
1605A, “create[s] a judicial forum for compensating the
victims of terrorism, and in so doing [may] punish foreign
states who have committed or sponsored such acts and deter
them from doing so in the future.” Price v.
Socialist People's Libyan Arab Jamahiriya, 294 F.3d
82, 88-89 (D.C. Cir. 2002). This exception furnishes federal
courts with subject-matter jurisdiction to hear
plaintiffs' claims and provides plaintiffs a cause of
action. See 28 U.S.C. § 1605A(a)(1), (c).
Mohamed, and Frost, along with several of their family
members, (collectively, “Plaintiffs”) filed this
suit in April 2017. They brought three counts under 28 U.S.C.
§ 1605A(c) against the Islamic Republic of Iran-one for
the torture and hostage-taking of each of the three
victims. ECF No. 1 at 22-25. That June, pursuant to
28 U.S.C. § 1608(a)(3), the Clerk of the Court mailed a
copy of the summons and complaint, along with a translation
of each, to the head of Iran's foreign ministry through
an international courier. ECF No. 10. The next month,
pursuant to 28 U.S.C. § 1608(a)(4), the Clerk sent the
same materials to the State Department to effectuate
diplomatic service. ECF No. 12. In October of that year, Iran
was served through diplomatic note. ECF No. 13.
never responded to the complaint. In January 2018, at
Plaintiffs' request, the Clerk of the Court entered
default against Iran. ECF Nos. 14, 15. Plaintiffs filed an
amended complaint the next month, containing the same
substantive claims as their original one. ECF No. 17. In
June 2018, all Plaintiffs except for Brenda Mohamed, Drew
Rowe, Lori Wendel, and Megan Martin moved for default
judgment against Iran. ECF Nos. 27, 28. In August 2018, the
remaining Plaintiffs, represented by separate counsel, did
the same. ECF No. 32.
February 2019, the Court held a two-day evidentiary hearing
on Plaintiffs' motions for default judgment. The Court
received testimony from El-Maadawy, Mohamed, and Frost's
widow, as well as two expert witnesses. The first, Stuart
Bowen, served as Special Inspector General for Iraq
Reconstruction. The Court qualified him as an expert on the
history of Shia militias in Iraq, including al-Sadr's
role in those militias, and Iranian influence in Iraq. The
second, Michael Pregent, is a senior fellow at the Hudson
Institute, as well as a former intelligence officer and
visiting fellow at the National Defense University. Pregent
served in Iraq as an embedded advisor to the Iraqi government
and as an adjunct fellow and contributor to the Chief of
Staff of the U.S. Army's Operation Iraqi Freedom Study
Group, which researched and wrote an operational history of
the Army's experience in Iraq from 2003 to 2011. The
Court qualified him as an expert on, among other things,
Iranian influence in Iraq.
Findings of Fact
cases, the Court may “accept as true the plaintiffs
uncontroverted evidence.” Elahi v. Islamic Republic
of Iran, 124 F.Supp.2d 97, 100 (D.D.C. 2000). Although
the Federal Rules of Evidence apply, “the Supreme Court
has ‘recognize[d] very realistically' that courts
have the authority-indeed, we think, the obligation-to
‘adjust [evidentiary requirements] to . . . differing
situations.'” Han Kim v. Democratic
People's Republic of Korea, 774 F.3d 1044, 1048
(D.C. Cir. 2014) (alterations in original) (quoting Bundy
v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)).
“This lenient standard is particularly appropriate for
a FSIA terrorism case, for which firsthand evidence and
eyewitness testimony is difficult or impossible to obtain
from an absent and likely hostile sovereign.” Owens
v. Republic of Sudan, 864 F.3d 751, 785 (D.C. Cir.
on the evidence received at the hearing, the Court finds that
Iran provided funding, weapons and training to Saraya
al-Salam to advance its goals in Iraq, including through
torture and hostage-taking; Saraya al-Salam carried out the
kidnapping and mistreatment of El-Maadawy, Mohamed, and
Frost; and it did so to increase Iran's leverage over the
imminent implementation of the Joint Comprehensive Plan of
Action (JCPOA), commonly known as the Iran nuclear deal.
Iran's Support for Shia Militias in Iraq, Including
Iran's revolution in 1979, it has operated the Islamic
Revolutionary Guard Corps (IRGC), a branch of its armed
forces. Rough Tr. Feb. 12 at 54-55
(Bowen); see also Flanagan v. Islamic Republic
of Iran, 87 F.Supp.3d 93, 104-05 (D.D.C.
2015). Iran projects its influence and advances
its interests through one of the IRGC's components, the
Quds Force, which supports militias beyond its borders. Rough
Tr. Feb. 12 at 56 (Bowen). The Quds Force, although it
operates independently from the rest of the IRGC, is
responsible to and directed by the Supreme Leader of Iran.
Id.; see also Flanagan, 87 F.Supp.3d at
104-05 (“[The Quds Force] reports directly to the
Supreme Leader, rather than being subordinate to the IRGC
and Sunni Islam are the two major branches of that religion,
both of which claim followers in Iraq. Rough Tr. Feb. 12 at
58-59 (Bowen). Iran is mainly Shia, and because it aims to
promote Shia power and influence relative to other religious
groups, the militias that the Quds Force supports tend to be
Shia as well. Rough Tr. Feb. 13 at 92 (Pregent);
Flanagan, 87 F.Supp.3d at 104. Over the years, one
of the primary beneficiaries of Iran's support has been
the Shia Lebanon-based terrorist organization Hezbollah.
See Rough Tr. Feb. 12 at 63-64 (Bowen); see
Elahi, 124 F.Supp.2d at 101 n.5 (describing Hezbollah as
Shia); see also Ben-Rafael v. Islamic Republic of
Iran, 540 F.Supp.2d 39, 44 (D.D.C. 2008) (“Iran
played a preeminent role in the creation of Hezbollah by
providing political, material, and financial assistance,
including the funding of Hezbollah since the
mid-1980's.” (internal quotation marks omitted)).
Hezbollah acts mainly at the direction of Iran. Rough Tr.
Feb. 12 at 63 (Bowen); see also Peterson v. Islamic
Republic of Iran, 264 F.Supp.2d 46, 51 (D.D.C. 2003)
(“Hezbollah is largely under Iranian orders. It's
almost entirely acting . . . under the order of the Iranians
and being financed almost entirely by the Iranians.”).
The Quds Force trains, equips, and finances Shia militias in
Iraq and throughout the Middle East both directly and through
Hezbollah. Rough Tr. Feb. 12 at 157-58 (El-Maadawy); Rough
Tr. Feb. 13 at 73, 75, 89, 119-20 (Pregent); see also
Flanagan, 87 F.Supp.3d at 105.
is a prominent Shia insurgent, politician, and cleric in Iraq
who has received funding and other support from Iran since at
least the early 2000s. Rough Tr. Feb. 12 at 71, 134- 35
(Bowen); see also Fritz v. Islamic Republic of Iran,
320 F.Supp.3d 48, 62 (D.D.C. 2018). The Quds Force, directly
and through Hezbollah, has provided him funding and military
support, which he has used to create and sustain various Shia
militia groups. Rough Tr. Feb. 12 at 67, 77, 85 (Bowen).
Throughout the U.S. presence in Iraq after 2003, those
militias took different forms and names, depending on
Iran's goals at the time. Id. at 91-92; Rough
Tr. Feb. 13 at 117-18 (Pregent); see also Fritz, 320
F.Supp.3d at 62.
formed Saraya al-Salam to counter the influence of the
Islamic State in Iraq and the Levant (“ISIS”), a
rising Sunni terrorist group. Rough Tr. Feb. 12 at 97-98
(Bowen). Saraya al-Salam, like previous Sadrist Shia
militias, received training, weapons, and money from Iran
through Hezbollah and the Quds Force to advance Iran's
interests in Iraq up through the time that El-Maadawy,
Mohamed, and Frost were kidnapped. Id. at 56-63;
Rough Tr. Feb. 13 at 73, 75, 89, 115-20 (Pregent). And
Iran-sponsored militias in Iraq routinely use these resources
to further Iran's goals through kidnappings and violence.
Fritz, 320 F.Supp.3d at 62. Saraya al-Salam made its
headquarters in the Sadr City neighborhood of Baghdad and, at
the time of the kidnapping, it exerted exclusive control over
that area. Rough Tr. Feb. 12 at 104 (Bowen).
Saraya al-Salam's Kidnapping of El-Maadawy, Mohamed, and
January 15, 2016, El-Maadawy, Mohamed, and Frost were working
in Baghdad as military contractors, training Iraqi security
forces. Rough Tr. Feb. 12 at 148, 150
(El-Maadawy). El-Maadawy and Mohamed spoke fluent Arabic, but
Frost did not. Id. at 166-67. In need of another
translator for their team, the three men met a candidate in
Baghdad, hired him, and then agreed to join him at his
apartment for tea. Id. at 171-74. Although
El-Maadawy did not realize it at the time, the apartment was
in Sadr City. Id. at 175.
El-Maadawy, Mohamed, and Frost tried to leave the
translator's apartment, they found dozens of armed men
waiting for them outside; one stepped forward to block their
exit. Id. at 178-79. The man received a call on his
cell phone, which lit up to reveal a picture of al-Sadr.
Id. at 179. To El-Maadawy, this meant that the armed
men were part of a Shia militia rather than ISIS. As a
result, he believed that surrendering was the group's
best chance to survive. Id. at 183. To that end,
El-Maadawy handed over his weapon and persuaded Mohamed and
Frost to do likewise. Id. at 182-83; Rough Tr. Feb.
13 at 22 (Mohamed). The armed men then forced them into vans.
Rough Tr. Feb. 12 at 183 (El-Maadawy).
Mohamed, and Frost were driven to a nearby building in Sadr
City and interrogated about who they were and what they were
doing in Iraq. Id. at 185. There were portraits of
al-Sadr, as well as the flags of both Saraya al-Salam and
Iran, on the walls. Rough Tr. Feb. 13 at 23-24 (Mohamed);
see also Rough Tr. Feb. 12 at 184 (El-Maadawy). The
three of them were then forced back into the vans and driven
to another compound, also in Sadr City. Rough Tr. Feb. 12 at
185 (El-Maadawy); Rough Tr. Feb. 13 at 25 (Mohamed). They
were blindfolded tightly, handcuffed around their wrists and
ankles, and crammed into cells so small they could not stand
up or lie down. Rough Tr. Feb. 12 at 191-93 (El-Maadawy);
Rough Tr. Feb. 13 at 28 (Mohamed). El-Maadawy estimated that
his cell was only about four feet high and four feet wide.
Rough Tr. Feb. 12 at 194-95 (El-Maadawy).
Mohamed, and Frost would remain in Saraya al-Salam's
captivity for the next month. During the first week,
El-Maadawy was kept naked and blindfolded, his hands and feet
bound behind his back. Id. at 195-196, 204. His
captors sometimes allowed him to use the bathroom.
Id. at 195. One time, though, his shackles caused
him to fall into the toilet, and his captors forced him to
lick feces from his hands. Id. at 196. After a week,
his captors gave him cardboard to sleep on, some clothes, and
a blanket. Id. at 197. But they continued to keep
his shackles so tight that his hands and feet turned purple.
Id. at 205. El-Maadawy was interrogated several
times every day, and he was beaten when his captors were
dissatisfied with his answers. Id. at 196. His
captors often struck him with the butts of their rifles,
kicked him, and punched him. Id. at 199, 218-19.
They tried to cut his fingers off with shears, but he
resisted by balling up his fist until they gave up.
Id. at 199. They put him through mock executions by
pressing an unloaded gun against his head and pulling the
trigger. Id. at 203-04. Twice, they used a car
battery to inflict electric shocks on him. Id. at
207-08. And at times, they held knives and machetes against
his throat, threatening to behead him and upload the video to
the internet so his children could see it. Id. at
was also stuffed into a tiny cell and provided cardboard on
which to sleep. Rough Tr. Feb. 13 at 29-30 (Mohamed). He was
shackled and blindfolded during most of his captivity.
Id. at 32. Twice his captors hung him from the wall
by his shackles-one time from those binding his hands, and
another time from those binding his feet. Id. at 35.
Mohamed also endured two mock executions in which his captors
placed unloaded guns against his head and pulled the trigger.
Id. at 34. His captors beat him many times,
including with a pipe. Id. at 40, 51. He shared a
cell with Frost for part of their captivity, and their
captors gave them both water bottles filled with urine to
drink. Id. at 37-39, 53. Mohamed heard Frost being
beaten, too, and often heard him groan with pain.
Id. at 53, 60. Their captors bound Frost with flex
cuffs cinched so tightly around his hands and feet that his
extremities turned blue. Id. at 54.
their captivity, El-Maadawy and Mohamed were interrogated
about American weapons, military strategy, and intentions
toward Iraq and Iran. Rough Tr. Feb. 12 at 200-01, 206
(El-Maadawy); Rough Tr. Feb. 13 at 41 (Mohamed). Shortly
before they were released, their captors forced all three men
to record a video in which they wore American military-style
uniforms, sat in front of Saraya al-Salam flags, thanked
al-Sadr for their release and warned the United States not to
invade Iraq again. Rough Tr. Feb. 12 at 201-03 (El-Maadawy);
Rough Tr. Feb. 13 at 42 (Mohamed).
February 16, 2016, El-Maadawy, Mohamed, and Frost were
removed from their cells and driven to a meeting with Iraqi
government officials. Rough Tr. Feb. 12 at 211-12
(El-Maadawy). Then U.S. soldiers arrived and took them into
custody. Id. at 213-14. They were flown to a U.S.
military base in Germany for medical treatment and
debriefing, and after a week or so, back to the United
three men continued to suffer from pain, flashbacks, and
other medical problems because of their treatment in
captivity. Rough Tr. Feb. 13 at 44-49 (Mohamed); see
Rough Tr. Feb. 12 at 218-20 (El-Maadawy). In November 2017,
Frost passed away, still suffering from injuries to his feet
and other after-effects from his detention. Rough Tr. Feb. 13
at 50 (Mohamed).
The Purpose Behind the Kidnapping
JCPOA was an agreement between Iran, the United States, and
other countries to lift sanctions against Iran in exchange
for limits on Iran's nuclear program. Rough Tr. Feb. 12
at 115 (Bowen). The JCPOA's implementation was a highly
sensitive moment in the relationship between Iran and the
United States in which Iran was jockeying for leverage.
Id. at 115, 123. That implementation was scheduled
within a day or so of Saraya al-Salam's kidnapping of
El-Maadawy, Mohamed, and Frost. Id. at 130-31.
experts testified that in their opinion, Saraya al-Salam
abducted El-Maadawy, Mohamed, and Frost to further Iran's
objectives, and increase its political leverage, as the
JCPOA's implementation drew near. The Court credits these
opinions, which it found credible, considered, and
testified that the kidnapping was intended to increase
Iran's leverage over the negotiation and subsequent
implementation of the JCPOA. Id. at 128-34. He based
his opinion on several factors. First, in his view, Iran and
its proxies know that U.S. hostages are valuable bargaining
chips because the United States places a high value on
recovering its citizens if they are detained abroad.
Id. at 131-32. Indeed, he noted, on the day the
JCPOA was implemented, Iran released five American hostages.
Id. at 117, 128. Second, to Bowen, the timing was
telling. Id. at 134. The kidnapping of El-Maadawy,
Mohamed, and Frost was the first abduction of U.S. citizens
in Iraq in five years, and it came within a day or so of the
JCPOA's implementation. Id. at 130-31. And just
the week before, apparently in a similar effort, the IRGC had
briefly detained U.S. sailors whose boat had strayed into
Iranian waters in the Persian Gulf. Id. at 128- 29.
Third, Iran closely controls its proxies when it comes to
their insurgent activities. In Bowen's view, a Shia
militia in Iraq under the direction of al-Sadr would not have
abducted an American unless so directed by Iran. Id.
at 135-36. And finally, Bowen relied on the U.S. Intelligence
Community's Worldwide Threat Assessment presented by
then-Director of National Intelligence James Clapper to the
Senate Armed Services Committee on February 9, 2016- during
the very time the three men were being held. ECF No. 49-1 at
1. At that time, the Intelligence Community assessed that
Iran might “use American citizens detained when
entering Iranian territories as bargaining pieces to achieve
financial or political concessions in line with their
strategic intentions.” Exhibit 34, James Clapper,
Worldwide Threat Assessment of the U.S. Intelligence
Community, Statement for the Record before Senate Armed
Services Committee, at 24.
testified similarly. Rough Tr. Feb. 13 at 104-08 (Pregent).
In his view, the abduction of El-Maadawy, Mohamed, and Frost
was motivated either by Iranian leverage-seeking against the
United States in connection with the JCPOA's
implementation, or by the IRGC or Quds Force's desire to
compel the United States to withdraw from the agreement
entirely. Id. at 107-08, 114-15. He, like Bowen,
also based his opinion on the timing and boldness of the
kidnapping and Iran's careful advancement of its
interests through Shia militias in Iraq. Id. Pregent
pointed out that the agreement had received a mixed reception
in Iran, with some elements within the Iranian government,
including the IRGC and the Quds Force, reportedly opposed to
it. Id. at 104-05, 107-08. And, like ...