Acree v. Republic of Iraq

Decision Date07 July 2003
Docket NumberNo. CIV.A. 02-632 (RWR).,CIV.A. 02-632 (RWR).
PartiesClifford ACREE, et al., Plaintiffs, v. The REPUBLIC OF IRAQ, et al., Defendants.
CourtU.S. District Court — District of Columbia

Anthony A. Onorato, Brian J. Newquist, David Davis Smyth, Stephen A. Fennell, Steptoe & Johnson LLP, Washington, DC, John Norton Moore, Alexandria, VA, for plaintiffs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROBERTS, District Judge.

Plaintiffs, former prisoners of war ("POWs") during the Gulf War in 1991 and their close family members, filed this lawsuit under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602, et seq. (2000). Plaintiffs seek damages for the injuries they allege they suffered as a result of the torture inflicted on the POW plaintiffs while in Iraqi captivity. The Republic of Iraq, Saddam Hussein, and the Iraqi Intelligence Service were properly served pursuant to 28 U.S.C. § 1608 and are in default. Based on a thorough review of the full record in this case,1 the Court makes the following findings of fact and conclusions of law in support of final judgment against defendants and an award to plaintiffs of compensatory and punitive damages.

BACKGROUND

Seventeen of the twenty-one American troops held captive by Iraq during the first Gulf War and thirty-seven of their immediate family members filed this lawsuit against the Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein, in his official capacity, alleging personal injuries suffered by the POWs caused by torture during their captivity, and suffered by their family members resulting from the acts of torture inflicted on their loved ones. Plaintiffs seek compensatory damages for bodily injury, emotional distress, economic injury, pain and suffering, and solatium. They also seek punitive damages to prevent future mistreatment of American POWs and their families.

The Court has jurisdiction over this action against a foreign state under 28 U.S.C. § 1330. Foreign states have no immunity from lawsuits seeking monetary damages for personal injuries caused by an act of torture or the provision of material support or resources for such torture by a state designated as a state sponsor of terrorism at the time the torture occurred, if such act or provision of material support is engaged in by an official or agent of such foreign state while acting within the scope of his or her office or agency. 28 U.S.C. § 1605(a)(7). The Republic of Iraq was designated as a state sponsor of terrorism in September 1990, prior to the torture and mistreatment of American POWs and their family members of which plaintiffs complain here, and was so designated throughout the Gulf War in 1991.2 The plaintiffs in this case are United States nationals, and they repeatedly offered defendants an opportunity to arbitrate their claims in accordance with accepted international rules of arbitration.

Plaintiffs effected service of process on defendants through the United States Interests Section of the Embassy of the Republic of Poland in Baghdad on July 22, 2002, pursuant to 28 U.S.C. § 1608. Defendants were required by 28 U.S.C. § 1608 to file an answer or otherwise to respond within sixty days after proper service was made, but failed to do so. The Clerk of Court entered default against defendants on September 25, 2002. Both the Clerk of Court and plaintiffs' counsel notified the defendants of the existence and terms of the Court's scheduling order of December 20, 2002, which established a March 31, 2003 deadline for the submission of a statement on damages. Defendants neither filed a pleading contesting liability nor requested an extension of time to do so. Defendants received adequate notice of this lawsuit and of all deadlines, and they elected not to appear.3

This Court cannot enter a final judgment by default against a foreign state or its political subdivisions, agencies or instrumentalities "unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e). Plaintiffs have submitted uncontroverted evidence that the defendants are liable for the torture of the POW plaintiffs and the intentional infliction of emotional distress on their family members. Plaintiffs have established their right to relief and to an award of damages by clear and convincing evidence which is satisfactory to the Court and which would permit a reasonable jury to find for the plaintiffs if this were a contested proceeding.

FINDINGS OF FACT
I. FACTUAL BACKGROUND

On August 2, 1990, the Republic of Iraq, acting at the direction of Iraqi President Saddam Hussein, attacked and occupied the State of Kuwait. In response, the United Nations ("UN") Security Council adopted Resolution 678, authorizing member states to use all necessary means to implement earlier UN Security Council Resolutions directing Iraqi forces to leave Kuwait. On January 16, 1991, an international coalition of thirty-three nations led by the United States initiated military action against Iraq.

Between January 17, 1991, and repatriation in early March of 1991, a number of coalition personnel, including the POW plaintiffs in this case, were held in Iraqi captivity. Most had been in aircraft that were downed over Iraq or Kuwait and several suffered injuries when their aircraft were downed.

Officials of the Republic of Iraq violently tortured all of the POW plaintiffs during their captivity. The POW plaintiffs were held for different periods of time and the specifics of their torture varied. Apparently because the Iraqi captors believed pilots had more sensitive information, the pilot POWs were tortured more severely than other POWs. The torture inflicted included severe beatings, mock executions, threatened castration, and threatened dismemberment. The POWs were systematically starved, denied sleep, and exposed to freezing cold. They were denied medical care and their existing injuries were intentionally aggravated. They were shocked with electrical devices and confined in dark, filthy conditions exposing them to contagion and infection. The POWs suffered serious physical injuries, including broken bones, perforated eardrums, nerve damage, infections, nausea, severe weight loss, massive bruises, and other injuries.

Iraqi agents caused the POWs to experience severe mental anguish by falsely reporting that they had killed Americans, including a pilot's wingman, other American POWs, and the President of the United States. The POWs suffered from knowing the agony that their families were enduring because the Iraqi authorities refused to inform the families that the POWs were alive. The Iraqi captors attempted unsuccessfully to degrade the POWs by urinating on them, and some POW plaintiffs were subjected to forced circumcision inspections to determine if they were Jewish. There is no indication that the POWs previously suffered from the extreme mental anguish and psychological harm that followed their captivity.

Iraq also used the POWs as "human shields" and held them captive in a legitimate military target. On January 21, 1991, only five days after the start of hostilities, Iraq announced this policy over Baghdad Radio. This was a profound source of anguish for the POWs' family members. When Allied forces bombed the regional Iraqi Intelligence Service Headquarters on February 23, 1991, not knowing that the POWs were incarcerated there, many of the POW plaintiffs narrowly escaped death.

The Iraqi torture of the POW plaintiffs was carried out in a common pattern of beatings upon capture and during captivity as punishment, beatings and other torture during extensive interrogations in an effort to extract information, random beatings unconnected to interrogations, and beatings in an effort to force the POWs to make verbal and videotaped statements and "confessions" to be used as propaganda.

No American POWs were permitted to notify their families of their capture and current state of health. As a calculated part of the torture of the POWs and their family members, Iraq refused all requests by both the POWs and the International Committee of the Red Cross ("ICRC") for notification of capture. For the POWs, this was a special dimension of the torture and mental anguish as they worried about their loved ones. Although the POWs did not opt for their captivity or torture, many experienced guilt for causing anguish to their families and friends. For spouses and other family members in the United States, Iraq's refusal to permit notification produced severe mental anguish. Several spouses did not know whether they were wives or widows. Other spouses who learned of their husband's capture through released Iraqi propaganda tapes suffered mental anguish knowing that their loved ones would allow themselves to be videotaped only if severely tortured.

The POWs and their families have continued to suffer over the years since repatriation. For many, the physical and mental effect of the torture and mental anguish produced lasting damage. Some have permanent physical impairments. Some have undergone painful and extensive medical treatments in an effort to reverse the damage done by their captors in Iraq. All have suffered the effects of lasting emotional harm, whether to their marriages, their relationship with their families and friends, or their professional lives.

II. PLAINTIFFS
A. POW Plaintiffs
Colonel Clifford Acree

Col. (then-Lt.Col.) Clifford Acree's OV-10 "Bronco" aircraft was shot down by a surface-to-air missile in Kuwait on the first day of the war. He suffered a whiplash-like injury to his neck during the ejection procedure. Within minutes, he was taken prisoner by Iraqi soldiers. He was restrained with handcuffs that were so tight they cut off circulation and cut into his wrist bone, causing significant pain and causing his hands to swell and become numb. During his...

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1 books & journal articles
  • Liability Under the Anti-terrorism Exception to the Foreign Sovereign Immunities Act
    • United States
    • Gonzaga University School of Law Gonzaga Journal of International Law No. 11-2, June 2007
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