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Karcher v. Islamic Republic of Iran

United States District Court, District of Columbia

August 26, 2019

TIMOTHY KARCHER, et al, Plaintiffs,
v.
ISLAMIC REPUBLIC OF IRAN, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         In Iraq, the U.S. military encountered a unique weapon, known as an explosively formed penetrator ("EFP"), that caused exceptional damage to armored personnel carriers and their occupants. This case concerns ninety-two attacks on U.S. servicemembers and others in Iraq from 2004 through 2011. The vast majority of those attacks involved EFPs. All of them were allegedly facilitated by Defendant Islamic Republic of Iran ("Iran").

         After Iran was properly served and it defaulted, the Court held a bench trial regarding seven "bellwether" attacks to determine the sufficiency of evidence to support entry of default judgment under the Foreign Sovereign Immunities Act ("FSIA").

         Upon consideration of Plaintiffs' [80] Proposed Findings of Fact and Conclusions of Law, the relevant legal authorities, and the record as a whole, in an exercise of its discretion the Court shall GRANT default judgment against Iran as to the claims of certain Plaintiffs arising from those seven attacks.

         For damages and any other appropriate determinations, the Court expects to refer the bellwether attacks to a special master, who shall prepare a report and recommendation to the Court. At that time, the Court shall issue additional instructions for liability and damages proceedings concerning non-bellwether attacks.

         I. BACKGROUND

         Well over 300 Plaintiffs filed this suit on February 12, 2016.[1]Those Plaintiffs generally consist of military servicemembers, their estates, and their family members, nearly all of whom are allegedly U.S. nationals.[2] Plaintiffs allege that Iran went to great lengths to enlist, train, and supply operatives in Iraq to attack American forces. As stated above, most of the attacks at issue in this case involve the EFP, a weapon allegedly attributable to Iran. The three-count Amended Complaint seeks relief for the personal injuries of the surviving victims, the personal injuries and deaths of victims who were killed, and the intentional infliction of "severe" emotional distress endured by families of those injured or killed. See Am. Compl., ECF No. 8, ¶¶ 1161-74.

         The Court shall summarize certain proceedings leading up to the bench trial in this matter, and those that precipitate the present decision.

         A. Service and Entry of Default

         After Plaintiffs purported to effectuate service on Iran via diplomatic channels pursuant to 28 U.S.C. § 1608(a)(4), and Iran failed to respond, they sought entry of default, which the Clerk entered. See ECF Nos. 16-18. When Plaintiffs thereafter moved for default judgment, the Court denied the motion without prejudice to permit Plaintiffs to demonstrate the grounds for proper service. Nov. 15, 2016 Order, ECF No. 22.

         Plaintiffs then took a dual-tracked approach to completing service. They supplied further justification for their attempt to serve Iran under Section 1608(a)(4), while also asking the Clerk of Court to facilitate service on Iran's Minister of Foreign Affairs under Section 1608(a)(3). ECF Nos. 23-27. The Clerk again entered default against Iran at Plaintiffs' request once proof of service under Section 1608(a)(3) was returned and Iran failed to respond within the statutory time period. See ECF Nos. 27-30; 28 U.S.C. § 1608(c)(2), (d). The Court then determined that Plaintiffs had properly effectuated service. Apr. 19, 2017 Mem. Op. and Order, ECF No. 31.

         The FSIA sets forth the requirements for service on a foreign state such as Iran. 28 U.S.C. § 1608(a); Fed.R.Civ.P. 4(j)(1). Under the FSIA, there are four methods of effecting service, the first two of which, if applicable, must be exhausted before moving to the third. 28 U.S.C. § 1608(a)(3); see also Barot v. Embassy of the Republic of Zambia, 785 F.3d 26, 27 (D.C. Cir. 2015) (recognizing "descending order of preference" in this provision). Neither special arrangements with Iran nor an international convention signed by Iran was available to facilitate service under Section 1608(a)(1) or (a)(2), so Plaintiffs were permitted to avail themselves of Section 1608(a)(3). Apr. 19, 2017 Mem. Op. and Order, ECF No. 31, at 3. Accordingly, even though Plaintiffs had improperly resorted first to Section 1608(a)(4) means, the Court concluded that their belated service under Section 1608(a)(3) was effective. Id. at 2-4.

         B. Pretrial Proceedings

         Through a series of Orders, the Court elicited Plaintiffs' views to facilitate proceedings in the default setting. See Id. at 4; Scheduling and Procedures Order, ECF No. 32; Min. Order of May 15, 2017; Pretrial Scheduling and Procedures Order, ECF No. 39. Based on that briefing, and discussion on the record with Plaintiffs, the Court decided to hold a three-day bench trial regarding a subset of attacks that Plaintiffs proposed as "bellwethers." In the Court's Phase I bellwether proceedings, Plaintiffs would present evidence as to jurisdiction, liability, and at least an aspect of damages. See Min. Orders of June 18, 2018, and July 17, 2018. One or more special masters then would conduct Phase II bellwether proceedings to complete damages determinations and make a report and recommendation to the Court. See Min. Orders of June 18, 2018, and July 17, 2018. The Court would issue further instructions thereafter regarding non-bellwether proceedings. See Min. Order of July 17, 2018.

         Subsequent pretrial proceedings included the entry of a protective order to facilitate the military's production of certain documents to Plaintiffs. Privacy Act and Personal Information Protective Order, ECF No. 54. Plaintiffs also sought the Court's pretrial approval of several demonstrative exhibits, two of which the Court permitted in its discretion: an actual-sized model EFP and an actual-sized model High Mobility Multipurpose Wheeled Vehicle ("HMMWV" or "Humvee"). Oct. 9, 2018 Order, ECF No. 55. The Court permitted Plaintiffs to file certain documents under seal; the basis for sealing most of those documents was their national-security sensitivity. See Nov. 5, 2018 Order, ECF No. 57 (citing United States v. Hubbard, 650 F.2d 293, 315-16 & n.83 (D.C. Cir. 1980)); Min. Order of June 18, 2018.

         In a further exercise of its discretion, the Court granted Plaintiffs' request for pre-admission of ninety-six government records under Federal Rule of Evidence 803(8), the public records exception to the hearsay rule. Nov. 27, 2018 Order, ECF No. 64. Plaintiffs had furnished sufficient evidence under the rather liberal evidentiary standards applicable to FSIA cases in default posture, particularly when the foreign sovereign has been recognized as a sponsor of terrorism. Id. at 1-2 (citing 28 U.S.C. § 1608(e); Owens v. Republic of Sudan, 864 F.3d 751, 785-86 (D.C. Cir. 2017), cert, granted in part on other grounds sub nom. Opati v. Republic of Sudan, 139 S.Ct. 2771 (2019) (Mem.); Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044, 1048-51 (D.C. Cir. 2014)). The Court nevertheless deferred its "determination of the appropriate weight to accord each of these exhibits." Id. at 2.

         The Court refused, however, to pre-admit reports prepared by Plaintiffs' experts, who were scheduled to testify at trial. Nov. 28, 2018 Mem. Op. and Order, ECF No. 66, at 1. Plaintiffs could lay adequate foundation for admission of those reports simply by asking the experts whether they adopted the facts and conclusions therein. Id.

         And lastly, at Plaintiffs' request, the Court exercised its discretion to take judicial notice of certain findings by Judge Randolph Moss in another case about the same attack on the Provincial Joint Coordination Center ("PJCC") in Karbala. Nov. 28, 2018 Mem. Op. and Order, ECF No. 66, at 1-4 (citing Fritz v. Islamic Republic of Iran, 320 F.Supp.3d 48 (D.D.C. 2018) (Moss, J.)). Nevertheless, the Court made clear that it must make its "own, independent findings of fact" based on the evidence presented at trial. Id. at 3-4 (quoting Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 172 (D.D.C. 2010); citing, e.g., Harrison v. Republic of Sudan, 882 F.Supp.2d 23, 31 (D.D.C. 2012)) (internal quotation marks omitted).

         C. Bench Trial

         Over the three-day trial, Plaintiffs presented evidence regarding seven bellwether attacks. Six attacks in Baghdad or the vicinity allegedly involved EFPs. The seventh attack-on the PJCC in Karbala-involved more conventional weapons.

         Plaintiffs put on a total of 19 witnesses, consisting of 8 fact witnesses and 11 expert witnesses.[3] The fact witnesses consisted of the following five military servicemember Plaintiffs who were injured in the bellwether attacks: Robert Bartlett, Robert Canine, David Haines, Chris Levi, and Wesley Williamson. The other fact witnesses were Kelli Hake, a Plaintiff and the widow of servicemember Christopher Hake, who was killed in a bellwether attack; Colonel (Ret.) Kevin Farrell, a non-Plaintiff witness of the attack that injured Mr. Bartlett; and then-First Lieutenant Rusty Mason, a non-Plaintiff witness of the attack that killed Mr. Hake.

         Of the expert witnesses, seven spoke to liability issues consisting generally of Iran's role in Iraq, Iran's relationship with its Lebanese and Iraqi proxies, the weapons they used in Iraq, and the U.S. military's efforts to respond. The remaining four experts were medical doctors who testified about F, FP-inflicted injuries to inform damages assessments.

         Because of the importance of the experts to this case, the Court shall briefly summarize some relevant qualifications of Plaintiffs' eleven experts and identify the topics as to which the Court found them to be qualified. See Fed. R. Evid. 702.[4]

         Liability Experts

Captain (Ret.) Donald Wade Barker performed counter-IED research and development at Georgia Tech after leading counter-IED units of the U.S. Army in Iraq, Afghanistan, and the United States. Expert Rep. of Capt. (Ret.) Donald Wade Barker, PX-158 ("Barker Rep."), Ex. 1; see also Barker T3-6:19-10:7.[5] The Court qualified Mr. Barker as an expert in "[improvised explosive devices ("IEDs")], EFPs and counter-IED technology." Barker T3-10:8-12.[6]
Colonel (Ret.) Leo E. Bradley III commanded U.S. Army units in Iraq, Afghanistan, and the United States that were responsible for explosive ordnance disposal ("EOD") and/or counter-IED initiatives. Expert Rep. of Colonial Leo E. Bradley III, U.S. Army (Retired), PX-156 ("Bradley Rep."), Ex. A; Bradley T2-7:14-9:24. The Court found Mr. Bradley qualified to serve as an expert as to "U.S. military EOD operations and IED investigations." Bradley T2-12:9-13.
Dr. Matthew Levitt directs a counterterrorism and intelligence program at the Washington Institute for Near East Policy and previously served in related roles at the Federal Bureau of Investigation and the U.S. Departments of State and the Treasury. Expert Rep. of Dr. Matthew Levitt, PX-154 ("Levitt Rep."), Ex. A; see also Levitt Tl-15:5-26:5. The Court found Dr. Levitt qualified to address "Iran's role as a state sponsor of terrorism, Iran's Islamic Revolutionary Guard Corps, or IRGC; the Islamic Revolutionary Guard Corps Qods Force, or IRGC-QF; Hezbollah; and those entities' support and training of the Special Groups in Iraq." Levitt Tl-26:6-14.
Colonel (Rel.) Kevin Lutz established and commanded the U.S. military's Combined Joint Task Force Troy ("Task Force Troy") in Iraq and led other counter-IED and EOD units of the U.S. Army. Expert Rep. of Col. (Ret.) Kevin Lutz, PX-159 ("Lutz Rep."), Ex. A; see also Lutz T5-6:18-15:2. The Court found Mr. Lutz qualified to address "the use of explosive devices, including IEDs and other ordnance, by transnational terrorist organizations and specifically the tactics, techniques and procedures used by terrorist groups in Iraq between 2003 and 2011." LutzT5-15:4-ll.
• Russell Melntyre has held intelligence roles that include [XXXXX] serving with Multi-National Corps-Iraq in a counter-IED cell. Expert Rep. of Russell L. Mclntyre, PX-157 ("Mclntyre Rep."), at 2 & Ex. A; see also Mclntyre T5-59:10-64:15. The Court recognized Mr. Mclntyre as an expert regarding "IED threats to [U.S.] forces, specifically in Iraq between 2003 and 2011, and with an additional focus on explosively formed projectiles or penetrators." Mclntyre T5-64:16-22.
Lieutenant General (Ret.) Michael L. Oates directed the U.S. military's Joint Improvised Explosive Device Defeat Organization ("JIEDDO") and served in a number of U.S. Army leadership roles in, or concerning, Iraq during the relevant time period. Expert Rep. of Lt. Gen. Michael L. Oates, United States Army (Ret.), PX-153 ("Oates Rep."), at 2; see also Oates T1-8L2-9, 81:25-86:8. The Court recognized Mr. Oates as an expert in "tactical and strategic threats faced by U.S. and Coalition Forces in Iraq [from] 2003 to 2008 and including the specific threat to U.S. military forces from IEDs and other ordnance, including EFPs." Oates Tl-86:15-22.
Michael P. Pregent performed intelligence roles for the United States Central Command Intelligence Directorate, Defense Intelligence Agency, and U.S. Army and currently serves as a senior fellow at the Hudson Institute, where he focuses on, among other things, counter-Iranian policy proposals. Expert Rep. of Michael P. Pregent, PX-155 ("Pregent Rep."), at 1-2; see also Pregent T5-165:15-173:2. The Court found that Mr. Pregent was qualified to testify regarding "intelligence matters, including attribution of terror attacks and also evidence collection and analysis in the intelligence field." Pregent T5-173:3-7.
Medical Experts
Dr. Romnev Andersen has chaired orthopedic surgery units of military and civilian hospitals, including the 10th Combat Support Hospital in Baghdad's Green Zone and the Walter Reed National Military Medical Center. Andersen T2-84:23-86:4, 87:3-92:7; see also Expert Rep. of Dr. Romney C. Andersen, PX-162 ("Andersen Rep."), Ex, A. The Court recognized Dr. Andersen as qualified to address "the treatment and prognosis for orthopedic blast injuries including injuries from EFP attacks." Andersen T2-92:8-12.
Dr. Russell Gore served as a military flight surgeon before launching the Complex Concussion Clinic for mild brain injuries at the Shepherd Center in Atlanta, where he also directs the SHARE Military Initiative focused on veterans. Gore T4-4:5-7:22; see also Medical Expert Rep. Concerning Traumatic Brain Injuries Caused by EFP Strikes in Iraq (2004-2011), PX-161 ("Gore Rep."), Ex. A. The Court found Dr. Gore to be qualified to address "traumatic brain injury, consequences of those [injuries], [and] diagnosis and treatment" of the same. Gore T4-7:23-8:2.
Dr. Charles Marmar, who currently chairs the Department of Psychiatry at New York University School of Medicine, played a leading role in the development of diagnostic criteria for post-traumatic stress disorder ("PTSD") and has since launched PTSD clinics for veterans. Marmar T3:70:12-74:12, 75:1-77:16; see also Expert Rep. of Charles R. Marmar, M.D., PX-163 ("Marmar Rep."), Ex. A. The Court qualified Dr. Marmar as an expert in "post-traumatic stress disorder, major depressive disorder, neurocognitive disorder following traumatic brain injury ("TBI"), PTSD in veterans surviving EFP attacks and the impact of war zone service on military family members." Marmar T3:77:17-23.
Dr. Shean Phelps treated blast victims at the point of injury as a U.S. Army Special Forces medical sergeant in the 1980s and later as a senior flight surgeon in Iraq in the 2000s. Phelps T5-119:2-129:21; Medical Expert Rep. Concerning Polytraumatic Injuries Caused by EFP Strikes in Iraq (2004-2011), PX-160 ("Phelps Rep."), Ex. A. The Court qualified Dr. Phelps as an expert in "the treatment of combat injuries, including polytrauma, blast injuries, particularly with respect to Iraq and IEDs in Iraq." Phelps T5-129:22-130:2.

         In addition to the nearly one hundred pre-admitted exhibits, the Court admitted twenty-five more based on the witnesses' testimony. See generally Ex. List, ECF No. 68. Those exhibits consisted largely of the expert reports, as well as audiovisual and photographic evidence. A number of demonstrative exhibits also were used at trial but were not offered into evidence.

         D. Trial & Post-Trial Proceedings

         The Court held a bench trial on December 3, 4, and 6, 2018. Of note here, Plaintiffs suggested at the outset of trial that they did not expect the Court to assign damages based on trial testimony alone. Whereas that testimony would furnish a "broad overview" of EFP-related damages, in particular, Plaintiffs intended to reserve medical records and, in their view, further testimony, until they appeared before a special master. Trial Tr. 1-9:19-11:1.

         After the trial, the Court held a teleconference on the record with Plaintiffs to identify the appropriate format for its Proposed Findings of Fact and Conclusions of Law. Upon receiving the timely submitted Proposed Findings of Fact and Conclusions of Law, the Court instructed Plaintiffs to file a revised version that would, in pertinent part, address a potential statute of limitations issue. See Min. Orders of Mar. 5, 2019, and Mar. 8, 2019.

         After they submitted their briefing, the Court of Appeals issued a decision that squarely prohibits district courts from raising, sua sponte, "the FSIA terrorism exception's statute of limitations on behalf of an entirely absent defendant." Maalouf v. Islamic Republic of Iran, 923 F.3d 1095, 1101, 1112 (D.C. Cir. 2019); see also Pis.' Notice of New Authority, ECF No. 81. Accordingly, the Court need not inquire further into any statute of limitations defenses that Iran could have raised if it had appeared in this action.

         The Court also sought Plaintiffs' input as to the proper handling of their sealed exhibits. See Min. Orders of June 3, 2019, and June 4, 2019. After a teleconference on the record, Plaintiffs agreed to review the sealed material and indicate what must remain sealed. Min. Order of June 4, 2019. They notified the Court informally that two of the sealed expert reports and a sealed exhibit could be placed on the public docket in their entirety, and that the five other sealed expert reports could also be released with redactions. At the Court's instruction, Plaintiffs moved to unseal these documents, either in full or with redactions, which the Court permitted. Min. Orders of Aug. 23, 2019, and Aug. 26, 2019. In this Memorandum Opinion, the Court refers to only a limited amount of information from exhibits that remain sealed, or from the redacted portions of publicly docketed exhibits. Accordingly, the Court is issuing sealed and redacted public versions of this Memorandum Opinion.

         E. Default Judgment

         In their brief, Plaintiffs "request," inter alia, "that the Court find that they have established their claims by evidence satisfactory to the Court and[ ] grant default judgment against Defendant as to the 7 bellwether attacks." Pis.' Br. at 4. Accordingly, the Court considers whether to enter default judgment as to the seven bellwether attacks, and whether its decision should extend only to liability or to encompass damages as well. Any further default judgment as to the remaining attacks would follow Phase II bellwether proceedings before one or more special masters.

         II. LEGAL STANDARD

         The entry of default judgment is governed by Federal Rule of Civil Procedure 55. Where the damages sought from a defaulting party are not for a sum certain or are not readily susceptible to computation, "the party must apply to the court for a default judgment." Fed.R.Civ.P. 55(b).

         Even then, "the entry of a default judgment is not automatic." Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005). In ordinary civil litigation, "[t]he determination of whether a default judgment is appropriate is committed to the discretion of the trial court." Hanley-Wood LLC v. Hanky 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));[7] see also 10A Charles Alan Wright et al., Federal Practice & Procedure Civil § 2685 (4th ed.) (same). Because "strong policies favor resolution of disputes on their merits[, ] '[t]he default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party.'" Jackson, 636 F.2d at 836 (quoting H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970) (per curiam)).

         A plaintiff seeking default judgment must persuade the trial court that subject-matter jurisdiction and personal jurisdiction over the defendant are satisfied. Thuneibat v. Syrian Arab Republic, 167 F.Supp.3d 22, 33 (D.D.C. 2016) (citing Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008); FC/m;. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008)).

         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. Cir. 2003) ("The court. . . has an obligation to satisfy itself that plaintiffs have established a right to relief"), cert, denied, 542 U.S. 915 (2004). "[T]he FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide," Han Kim, 744 F.3d at 1047, and "[u]ncontroverted factual allegations that are supported by admissible evidence are taken as true," Thuneibat, 167 F.Supp.3d at 33.

         Before entering a default judgment, the Court has discretion to conduct a hearing to "establish the truth of any allegation by evidence" or "determine the amount of damages," among other purposes. Fed.R.Civ.P. 55(b)(2).

         III. FINDINGS OF FACT

         The Court has concluded that it has subject-matter jurisdiction over this action against a foreign state. Iran has waived its sovereign immunity by providing material support for acts of extrajudicial killing and hostage taking resulting in personal injury and/or death. See 28 U.S.C. §§ 1330(a), 1605A(a)(1). The Court shall reserve further discussion of jurisdiction until after the Court sets forth the factual record, which is essential to establishment of that jurisdiction.

         The Court's Findings of Fact are based on testimony presented at the bench trial held in this matter in December 2018, as well as a substantial amount of evidence submitted before and during that trial. Plaintiffs' proposed findings have assisted the Court in identifying the most relevant of this evidence. See Pis.' Br. at 15-111. The present Findings of Fact are also supported, where appropriate, by Judge Moss's findings of fact in Fritz.

         This Court's findings fall into three overarching categories: (1) Iran's relationship with Hezbollah and other proxy groups operating in Iraq; (2) the nature and use in the Iraqi theater of EFPs, an Iranian "signature weapon," Pis.' Br. at 2; and (3) how Iran's material support for its proxies, including via EFPs, resulted in the injuries and deaths in the bellwether attacks in Iraq.

         A. Iran's Material Support for Hezbollah and Other Proxies in Iraq

         1. Iranian Interests in the Region

         Like many accounts of Iran's modern activities, this one properly begins with the revolution in 1979. Shortly after Ayatollah Ruhollah Khomeini came to power as Supreme Leader, he instituted what became known as the Islamic Revolutionary Guard Corps ("IRGC") to forestall any "backsliding in implementing [his] vision for an Islamic theocratic government" in the Islamic Republic of Iran. Mclntyre Rep. at 4-5; see also Levitt Tl-27:9-12. While the Iranian armed forces would "protect the borders of Iran," the IRGC with its "parallel" military structure was tasked with "protecting] the revolution." Levitt Tl-28:3-8 (observing that IRGC has its own army, navy, and air force). A subsidiary of the IRGC-the Qods Force, or IRGC-QF-is responsible for its international operations, including training Muslim groups to support the revolution through insurgency and terrorism. Mclntyre Rep. at 6; Levitt Tl-27:18-21, 33:6-16 (likening the Qods Force to "the sharp end of [a] spear" when it comes to "Iran's extraterritorial activities"). That subsidiary is led by General Qasem Soleimani, a direct report of the second Supreme Leader of Iran, Ayatollah Sayyid Ali Hosseini Khamenei. Mclntyre Rep. at 4-5; Oates Rep. at 11.

         As a result of Iran's "support for acts of international terrorism," the United States designated Iran as a state sponsor of terrorism on January 19, 1984. State Sponsors of Terrorism, U.S. Dep't of State (Dec. 20, 2017), PX-1; see also Mclntyre Rep. at 6 (attributing designation "in large part to the actions of the IRGC and later its Qods Force"); Levitt Tl-27:16-17 (observing that designation has not been discontinued). Similar terrorism-related designations of the IRGC and IRGC-QF have followed more recently: the IRGC-QF on October 25, 2007, and the IRGC on October 13, 2017. See U.S. Dep't of Treasury, Fact Sheet: Designation of Iranian Entities and Individuals for Proliferation Activities and Support for Terrorism (Oct. 25, 2007), PX-5 ("IRGC-QF Designation"), at 1, 3 (announcing designation of IRGC-QF under Executive Order ("E.O.") 13224 for supporting terrorist organizations); Mclntyre Rep. at 3 n.1, 4 n.3 (recognizing this designation of IRGC-QF as "Specially Designated Global Terrorist"); U.S. Dep't of Treasury, Treasury Designates the IRGC Under Terrorism Authority and Targets IRGC and Military Supporters Under Counter-Proliferation Authority (Oct. 13, 2017), PX-6 (announcing designation of IRGC under E.O. 13224 for supporting IRGC-QF); Mclntyre Rep. at 3 n.1 (recognizing this designation of IRGC as "Specially Designated Global Terrorist"); Levitt Rep. at 6 n.4 (same).

         Among Iran's foreign activities, its campaign in Iraq figures prominently. Dating at least to the Iran-Iraq War in the 1980s, the Shi'a Muslim regime in Iran sought to undermine Saddam Hussein's largely Sunni Muslim government by supporting Shi'a political groups in Iraq. See Mclntyre Rep. at 14; Levitt Rep. at 16. These efforts escalated after the United States' Second Iraq War, opines Dr. Matthew Levitt, a former U.S. counterterrorism intelligence analyst:

By forcing the collapse of Saddam Hussein's regime, Operation Iraqi Freedom removed Iran's greatest enemy and longtime nemesis. The 2003 invasion therefore provided Iran with a historic opportunity to reshape its relationship with Iraq and, in the process, increase its influence in the region. To that end Iran employed an "all elements of national power" approach in exploiting the outcome of this seminal event. This included both soft and hard power, from the use of political, economic, religious, and cultural leverage to the support of militant proxies.

Levitt Rep. at 7. The United States' post-invasion presence in Iraq threatened Iran's opportunities, however, only reinforcing "the long-held Iranian desire to push the United States out of the Gulf region." Id. at 8. Iran accordingly pursued "a Shia-dominated and unified Iraq" while causing the United States "continued setbacks in [its] efforts to promote democracy and stability" there. Annual Threat Assessment of the Director of National Intelligence for the Senate Select Comm. on Intelligence (Feb. 2, 2006) ("Annual Threat Assessment"), PX-16, at 12.

         Meanwhile, Iran had long exerted its influence in Lebanon, as well. Beginning in the early 1980s, IRGC shaped the development and military capabilities of Lebanese Hezbollah (herein, "Hezbollah"), [8] a militant Shi'a political party that wanted to oust Israeli forces from Southern Lebanon. Mclntyre Rep. at 7-8. As the relationship between IRGC and Hezbollah grew, Hezbollah reciprocated by executing terrorist missions against Israeli and American targets at Iran's request, offering Iran "reasonable deniability" after the fact. Levitt T1-30:10-19; see also Mclntyre Rep. at 7-8; Annual Threat Assessment at 13 (describing Hezbollah as "Iran's main terrorist ally" and "capable of attacks against U.S. interests if it feels its Iranian patron is threatened").

         2. Iran's Network of Influence in Post-Invasion Iraq

         In order to bolster its influence in Iraq, and counter American efforts there, Iran continued to sponsor Shi'a political movements-now vying for control of the post-Hussein government- while funding and facilitating the training of Shi'a militia groups, with Hezbollah's help. See, e.g., Oates Rep. at 14-17. In the political sphere, the Da'wa Party, the Supreme Council for the Islamic Revolution in Iraq ("SCIRI"), and Muqtada al-Sadr's Office of the Martyr Sadr ("OMS") filled varying niches but each benefitted from Iranian support. See Id. The armed wings of SCIRI and OMS-the Badr Corps and Jaysh al-Mahdi ("JAM"), respectively-were likewise closely affiliated with IRGC-QF. Id. at 14, 17. Among the downstream effects of that Iranian support was militia infiltration of the Iraqi police and security forces, resulting in widespread corruption and "death squads" targeting at least Sunnis, if not Western officials as well. See, e.g., Mclntyre Rep. at 19-21; Oates Rep. at 15-16. Meanwhile, Iranian arms, funding, and operatives flowed into Iraq through the Sheibani Network and other smuggling operations, while some Iraqi allies made the reverse trip to Iran for training. Mclntyre Rep. at 26.

         The fruits of Iran's soft power are perhaps best demonstrated by Michael Pregent's testimony. As a civilian intelligence officer with the Defense Intelligence Agency, Mr. Pregent was tasked with "curbing Iranian influence in the security ministries." Pregent T5-168:2-25, 169:16-24. His undercover assignment in the Iraqi prime minister's Office of the Commander in Chief gave him a unique vantage point. Id. at 169:24-170:2. He witnessed "the level of complicity with Iraqi ministers tied to the Shi'a Da'wa Party that went after American allies in the Sunni community and the Kurdish community and also Shi'a nationalists." Id. at 170:7-10. These connections benefitted Shi'a militia members, who gained access to "government vehicles, government waivers to travel during curfews," and "official ministerial paperwork and permissions" that enabled them to "develop targeting packets against opposition leaders and also Sunnis." Id. at 170:11-16. Iranian allies threatened American military interests in Iraq in part because they had "saturat[ed] ... the security ministries and the intelligence apparatus." Id. at 170:17-21.

         As for the hard power, the IRGC-QF spearheaded a closely coordinated campaign to equip the Shi'a militia for proxy warfare. That campaign is well attested to in U.S. Government documents. In 2007, the Qods Force earned its Treasury Department designation under E.O. 13224 in part because it "provides lethal support in the form of weapons, training, funding, and guidance to select groups of Iraqi Shi'a militants who target and kill Coalition and Iraqi forces and innocent Iraqi civilians." IRGC-QF Designation, PX-5, at 3. The State Department found that in 2011,

Iran was responsible for the increase of lethal attacks on U.S. forces [in Iraq] and provided militants with the capability to assemble explosives designed to defeat armored vehicles. The IRGC-QF, in concert with Lebanese Hizballah, provided training outside of Iraq as well as advisors inside Iraq for Shia militants in the construction and use of sophisticated improvised explosive device technology and other advanced weaponry.

U.S. Dep't of State, Country Reports on Terrorism 2011 (July 2012), PX-18, at 172.[9]

         The threat from Shi'a militia continued to evolve under Iranian direction or support. After American and Iraqi forces inflicted tremendous casualties on JAM in the battle of Najaf in 2004, Mr. al-Sadr permitted the formation of JAM "Special Groups" with enhanced capabilities to attack American and Coalition forces, while the remainder of JAM would focus on anti-Sunni violence and other criminal activities. Oates Rep. at 22; Mclntyre Rep. at 37. This resulted in a realignment of leadership, where local commanders of JAM Special Groups operated with some autonomy from Mr. al-Sadr and "received their training, weapons and operational direction directly from Hezbollah and the TRGC-QF." Oates Rep. at 22-23. TRGC-QF funding and equipment for Special Groups reached an estimated $750, 000 to $3 million per month by August 2007. Pregent Rep. at 12 (reporting U.S. military estimate).

         Qais Khazali, who commanded one or more JAM Special Groups, traveled to Iran in 2006 and met with IRGC-QF leadership as well as Supreme Leader Ayatollah Khamenei. Declassified Detainee Document Regarding Qais Khazali, at 000324 (Aug. 13, 2007), PX-57; Mclntyre T5-104:9-17; Mclntyre Rep. at 25. Declassified military intelligence indicates that the Supreme Leader asked Mr. Khazali to start Asa'ib Ahl al-Haq ("AAH") or the K2 network, a further special group outside of Mr. al-Sadr's auspices and awareness. Declassified Detainee Document Regarding Qais Khazali, at 000324 (Aug. 13, 2007), PX-57. The AAH initiative demonstrated Iran's effort to foster dependence on its aid for Iraqi militia to carry out attacks on Coalition Forces. Pregent Rep. at 13. Although AAH was later deprived for some time of the leadership of Qais Khazali and his brother, Layth, [10] during their detention by U.S. forces, the group "was able to maintain a fairly high-level offensive tempo" and "operated as Iran's direct terror proxy targeting U.S. personnel at the direction of Hezbollah and the IRGC-QF" from 2006 through 2011. Oates Rep. at 33; see also Mclntyre Rep. at 39, 51 (discussing AAH's successes without the Khazalis, and identifying the release of Layth in June 2009 and Qais in January 2010);[11] Pregent T5-223:4-13 (stating that AAH "was funded, directed, trained and equipped by the IRGC-Qods Force and Lebanese Hezbollah").

         Perhaps Iran sought an even closer ally, or simply to multiply its options for proxy attacks on U.S. and Coalition forces. Whatever the reason, Iran directed the formation of still another militia group-Kata'ib Hezbollah ("KH" or "Hezbollah Brigades")-in 2007. Oates Rep. at 33; Oates Tl-123:24-25 (calling KH a "whole-cloth creation of the IRGC"). This group would be led by Abu Mahdi al Muhandis, a senior advisor to the IRGC's Qasem Soleimani with both Da'wa Party and Badr Corps credentials. Oates Rep. at 33; Mclntyre Rep. at 40. Since 2007, Kata'ib Hezbollah had been "responsible for numerous terrorist acts against Iraqi, U.S., and other targets in Iraq," the U.S. Department of State noted when it designated the group as a Foreign Terrorist Organization in June 2009. U.S. Dep't of State, Designation of Kata'ib Hizballah (June 26, 2009), PX-10.

         Not to be outdone, Mr. al-Sadr's militant activity against U.S. and Coalition forces came full circle. Whereas previously he had ceded those kinds of initiatives to the JAM Special Groups, in July 2008 Mr. al-Sadr announced the formation of the Promise[d] Day Brigades ("PDB"), which could be called a JAM Special Group of his own. Oates Rep. at 38; Mclntyre Rep. at 46. This group too was supported by the IRGC-QF and Hezbollah, "in keeping with the IRGC's long-time policy of investing in all Shi'a factions." Oates Rep. at 38. And it was responsible for its own string of attacks on U.S. and Coalition forces. Oates Rep. at 38; see also Exhibit, [XXXXX]

         B. Explosively Formed Penetrators as a Signature Weapon

         Plaintiffs' evidence shows that Iran supplied or bankrolled a number of types of weapons used by Shi'a militia groups in Iraq. See, e.g., Mclntyre Rep. at 41 (noting that Iran provided Kata'ib Hezbollah with a certain type of rocket launcher). The Court shall focus on the explosively formed penetrator, however, because that weapon is implicated in 82 or 83 of the 92 attacks, [12]including six of the seven bellwether attacks. The seventh bellwether attack, on the PJCC in Karbala, does not turn on uniquely Iran-affiliated weaponry, but instead on the tactics and personnel involved. The Court shall postpone discussion of any non-EFP weapons in non-bellwether attacks until those attacks are properly before the Court.

         1. The Nature, Uses, and Deployment of EFPs

         The Court's understanding of EFP design, construction, and detonation is aided by the report and trial testimony primarily of Wade Barker, an explosives expert. See Barker T3-13:3-15:7; Barker Rep. at 5-9; see also Lutz T5-17:8-18:19 (affirming Mr. Barker's testimony and describing EFP video admitted as PX-60). An EFP typically consists, in pertinent part, of a short metal pipe loaded with high-energy explosive ("HE" explosive) and capped with a concave copper disk. Barker Rep. at 6-7 & n.13 (defining HE explosives in part as "chemical compounds or mixtures that are capable of supporting or sustaining a detonation wave"). Detonation of the EFP •forces the inverted center of the disk outwards into a molten slug capable of traveling 2, 000 meters per second or more.[13] Id.

         That speed is sufficient to puncture an "up-armored" Humvee's rolled homogenous armor ("RHA"), which, Mr. Barker said, is "the hardest steel that we can make" and is intentionally deployed "in layers on the vehicles to prevent penetration." Barker T3-14:3-l 1. The combination of RHA and ballistic glass windows is enough to thwart other types of weapons. Barker Rep. at 13 (recognizing efficacy against "truly-improvised IEDs and small arms fire"). After an EFP pierces even an up-armored Humvee, the slug disperses shards of the Humvee's steel and Teflon, potentially blows the vehicle's doors off of their hinges due to the pressure wave, and possibly ignites the vehicle's fuel. Id. at 7.

         Inflicting this damage requires precision craftsmanship of the EFP. Nowhere is this more apparent than in the specifications for the copper disk. Mr. Barker indicated, for example, that this disk must be milled to a specific "thickness and angle."[14] Id. at 9; see also Barker T3-17:19-18:l. If the depth of the disk is too thick or too thin, or if the curvature of the disk is incorrect, then the slug may be unable to form or may split into multiple pieces during flight. Barker Rep. at 9; Barker T3-17:19-18:1. As a result, the slug may be unable to penetrate the target or may miss it entirely. Barker Rep. at 9; Barker T3-17:19-18:l. Moreover, the disk must consist of copper, rather than other metals whose melting points are not conducive to proper formation of an effective slug. Barker Rep. at 9; Barker T3-17:4-18. The explosive too must be of a certain type and strength in order to shape and propel the slug fast enough to cut through RHA. Barker Rep. at 8.

         Detonating an EFP relies on a "two-step arming and triggering process" akin to that of other explosive weapons. Id. at 10, 12. At least for EFPs in the Iraqi theater, the operator typically would arm the EFP using either a command wire ("CW") or remote frequency ("RF"). Id. at 10. Whereas the CW approach had a range of 100 meters or less, the RF approach enabled the operator to arm the EFP from more than 300 meters away.[15] Id. Often a spotter closer to the site of the EFP would alert the operator when the target vehicle approached. Barker T3-32:19-25. The operator of an RF-equipped EFP would then send the signal "using something as simple as a key-fob or as complex as a dual-tone multi-function reference board found inside a cell phone." Barker Rep. at 10. The cell phone method permitted the EFP maker to incorporate a safety system requiring the operator to enter a four- to ten-digit PIN into the cell phone in order to arm the device. Barker T3-33:2-9. After arming the EFP, the operator did not need to take any further action. Upon moving from passive into active mode, the armed device awaits only a triggering event in order to detonate. Barker Rep. at 10. An approaching vehicle would generate enough heat to cause a passive infra-red device ("PIR") attached to the EFP to send an electrical current to the EFP, thereby triggering detonation. Id. (deeming this a "Victim Operated IED ('VOIED')").

         As the foregoing suggests, so Mr. Barker confirmed at trial that making effective EFPs requires substantial technical expertise. He admitted that it had "taken [him] years to even understand how" to make an EFP, and that building the demonstrative EFP exhibit for trial involved two months of work by two electrical engineers and two mechanical engineers. Barker T3-19:2-10.

         Effectively deploying the EFP called for a further layer of technical know-how combined with substantial strategic planning. Identifying precisely the right directional focus, distance from the target, and timing of the PIR-enabled weapon would require an extensive "trial and error" process. Bradley T2-26:16-27:15. The EFP emplacers were also adept, for example, at camouflaging the weapon to avoid tipping off U.S. forces. EFPs could be embedded in piles of trash, trash barrels, concrete street curbing, or synthetic rocks made out of foam and covered with dirt. Barker T3-26:4-12, 45:15-21; Lutz T5-43:14-44:13 (discussing "rock" pictured in PX-65); Mclntyre Rep. at 10. The sophistication of EFP attacks also evolved in step with the U.S. military's countermeasures, as explained below.

         2. The Sources of EFPs and the Training to Deploy Them

         Who in the Iraqi theater possessed sufficient expertise to make and deploy the EFPs that the U.S. military encountered? If it is not possible to create an EFP without being "a classically trained engineer," as Mr. Barker maintains, then the average Iraqi Shi'a militia member could not reasonably be expected to construct this weapon on his own. Barker T3-33:l 1-19. Due to the unique components of the EFP, the tactics through which it is effectively deployed, and the extensive expertise necessary to overcome U.S. countermeasures, Plaintiffs' experts have traced the EFPs encountered in Iraq to Iran and Hezbollah.

         According to several expert reports, EFPs were first seen in combat when Hezbollah attacked one or more Israeli Humvees in Southern Lebanon on October 5, 1998. Barker Rep. at 6; Mclntyre Rep. at 12.[16] But even before Hezbollah used EFPs, it had been developing increasingly effective IEDs by honing tactics, techniques, and procedures ("TTP"). See Mclntyre Rep. at 10-11. Each time the Israeli military devised countermeasures, Hezbollah's engineers would adapt TTP accordingly. See Id. For example, Hezbollah developed synthetic rock camouflage for their IEDs, turned from CW to RF methods of arming those weapons, and added PTR for a trigger. Id. And those hallmarks of Hezbollah's TTP appeared in the Iraqi theater as well, where, as the Court described above, camouflage, RF-armament, and PIR-triggering were keys to EFPs' success. See also, e.g., Lutz T5-43:20-44:25 (describing camouflaged EFP characteristic of Hezbollah's practices in Lebanon); Levitt Tl-58:19-59:25 (discussing Hezbollah's transfer of its EFP tactics, including camouflage, from Lebanon to Iraq).

         Although Hezbollah appears to have developed the first EFPs, both Iran and Hezbollah were instrumental to their use in Iraq, beginning in 2004. See, e.g., Lutz T5-20:2-21:2 (identifying earliest reported EFP use in Iraq). First, the evidence shows that Iran supplied EFPs that were fired in Iraq. Mr. Oates, the former director of JIEDDO, said that the U.S. Department of Defense established JIEDDO to "coordinate all of the defense activities to understand" IEDs, including EFPs, "how [U.S. institutions] might mitigate the effects from a material[s] solution or from training and furthermore to understand the intelligence components associated with the networks that are being used against Coalition Forces with these devices." Oates Tl-85:18-86:8. While JIEDDO coordinated counter-IED efforts from Washington, D.C., Task Force Troy was "the operational force" on the ground in Iraq, bringing together "intelligence, explosive ordnance expertise and engineering expertise." Oates Tl-95:l-9. Task Force Troy and domestic U.S. intelligence conducted extensive forensic analysis after EFP attacks, as well as when EFP components were found in caches. See, e.g., Lutz T5-27:16-25; Bradley T2-43:25-44:16. When Mr. Oates was asked whether "Task Force Troy and/or JIEDDO ever reach[ed] any conclusion about the source of the EFPs being used in Iraq," he concluded unequivocally that "[t]he principal source of the materials and the completed munition, the EFP, was . . . Iran." Oates Tl-95:11-18; see also, e.g., Oates Rep. at 24-25 ("[O]ne of Iran's primary forms of material support to the [JAM] Special Groups was financing, manufacturing and deploying EFPs. . . . The U.S. military traced much of the machinery used to manufacture the EFPs, high explosives and PIR devices deployed in Iraq to Iran and its illicit supply chain."); U.S. Dep't of Defense, Measuring Stability and Security in Iraq (Mar. 2007), PX-35, at 17 (identifying Iranian origin of EFPs supplied to some Shi'a militants, who in turn have attacked Coalition forces). At a minimum, the metal, the HE explosive, and some degree of EFP manufacturing have each been attributed to Iran. See Oates Tl-95:19-25 (agreeing that "the actual metal," as well as "the milling or the actual manufacture," could be traced to Iran); Lutz T5-46:12-47:18 (ascribing HE explosive that looked like American C4 to non-U.S. origin, "most likely ... Iran through the IRGC"); id. at 48:5-48:15 (indicating that "large shipments of steel [were] going into Iran to a specific manufacturing plant that had the capability to cut and mill the casings"). It appears that Iran facilitated the smuggling of these components into Iraq along well-established, yet clandestine supply lines for assembly into the finished weapons. See Mclntyre T5-96:20-97:l 1 (discussing network of supply bases, weapons caches, and safe houses); Lutz T5-47:19-48:4 (describing HE explosives disguised as American equivalent to pass through "logistic rat lines").

         Meanwhile, IRGC-QF and Hezbollah conducted trainings in a combination of Iraq, Iran, and Lebanon for Iraqi Shi'a militant leaders in the effective use of EFPs. E.g., U.S. Dep't of Defense, FY 2010 NDAA Conference Rep., PX-39, at 3; U.S. Dep't of State, Country Reports on Terrorism 2008 (Apr. 2009), PX-18, at 183. Compared with Iranian instructors, Hezbollah instructors were reportedly more effective, in part because they shared a language (Arabic) and culture (tribal relationships and other networks) with Iraqi Shi'a that Iranians coming from a Persian, cosmopolitan culture generally did not. Strategic Debriefing Element - Recommendation for Continued Internment, at 000330-31 (Oct. 5, 2008), PX-107; Mclntyre T5-107:2-108:20 (interpreting PX-107). Whatever their nationality, the trainers offered critical assistance that, for example, enabled Shi'a militia groups to understand how to position EFPs' PIR triggers based on the likely speed of a moving target vehicle. See Bradley T2-26:16-27:21 (indicating, inter alia, that substantial calculations were involved); Lutz T5-36:l 1-37:24 (discussing, e.g., Hezbollah's characteristic use of PIR triggers).

         That training was further evidenced in the Iraqi Shi'a militia's ability to respond so rapidly and effectively to the U.S. military's sophisticated countermeasures. For example, the U.S. military attached several more inches of RHA and ballistic glass to up-armored Humvees using "door kits," such as the Level 5 Interim Fragmentary Armor Kit ("Frag 5 Kit"). Barker Rep. at ii, 15. That was not enough to stop EFPs. Id. at 15. The military also began attaching appendages, called "Rhinos," to the front of Humvees to trigger early detonation of EFPs ahead of the vehicle or into the engine, but the militia responded by offsetting and angling the EFPs' PIRs so that the EFP would still hit the crew cabin. See Barker ...


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