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 ...