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Frost v. Islamic Republic of Iran

United States District Court, District of Columbia

May 31, 2019

TAMMIE FROST et al., Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE

         In 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).

         I. Legal Background

         The 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).

         II. Procedural Background

         El-Maadawy, 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.[1] 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.

         Iran 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.[2] 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.

         In 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.

         III. Findings of Fact

         In FSIA 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. 2017).

         Based 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.

         A. Iran's Support for Shia Militias in Iraq, Including Saraya al-Salam

         Since Iran's revolution in 1979, it has operated the Islamic Revolutionary Guard Corps (IRGC), a branch of its armed forces.[3] Rough Tr. Feb. 12 at 54-55 (Bowen);[4] see also Flanagan v. Islamic Republic of Iran, 87 F.Supp.3d 93, 104-05 (D.D.C. 2015).[5] 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 command structure.”).

         Shia 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.

         Al-Sadr 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.

         Al-Sadr 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).

         B. Saraya al-Salam's Kidnapping of El-Maadawy, Mohamed, and Frost

         On January 15, 2016, El-Maadawy, Mohamed, and Frost were working in Baghdad as military contractors, training Iraqi security forces.[6] 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.

         When 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).

         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).

         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 204.

         Mohamed 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.

         Throughout 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.[7] Rough Tr. Feb. 12 at 201-03 (El-Maadawy); Rough Tr. Feb. 13 at 42 (Mohamed).

         On 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 States.

         All 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).

         C. The Purpose Behind the Kidnapping

         The 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.

         Both 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 persuasive.

         Bowen testified that the kidnapping was intended to increase Iran's leverage over the negotiation and subsequent implementation of the JCPOA.[8] 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.”[9] Exhibit 34, James Clapper, Worldwide Threat Assessment of the U.S. Intelligence Community, Statement for the Record before Senate Armed Services Committee, at 24.

         Pregent 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 ...


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