Baker v. Socialist People's Libyan Arab Jamahirya

• Citation: 775 F.Supp.2d 48
• Decision Date: 30 March 2011
• Docket Number: 08–cv–505 (JMF).,Civil Action Nos. 03–cv–749 (JMF)
• Parties: Patrick Scott BAKER, et al., Plaintiffs,v.SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRYA, et al., Defendants.Jackie Nink Pflug, et al., Plaintiffs,v.Socialist People's Libyan Arab Jamahirya, et al., Defendants.
• Court: U.S. District Court — District of Columbia

775 F.Supp.2d 48

Patrick Scott BAKER, et al., Plaintiffs,

v.SOCIALIST PEOPLE'S LIBYAN ARAB JAMAHIRYA, et al., Defendants.Jackie Nink Pflug, et al., Plaintiffs,

v.Socialist People's Libyan Arab Jamahirya, et al., Defendants.

Civil Action Nos. 03–cv–749 (JMF)

08–cv–505 (JMF).

United States District Court, District of Columbia.

March 30, 2011.

Steven R. Perles, Perles Law Firm, P.C., Richard D. Heideman, Tracy Reichman Kalik, Heideman Nudelman & Kalik, P.C., Washington, DC, for Plaintiffs.Anne Katherine Toomey, Eric Leslie Lewis, Baach, Robinson & Lewis PLLC, Washington, DC, for Defendants.

MEMORANDUM OPINION ¹

JOHN M. FACCIOLA, United States Magistrate Judge.I. INTRODUCTION

Before me at this time are two actions: Baker v. Great Socialist People's Libyan Arab Jamahirya, No. 03–CV–749, which was filed on March 3, 2003, and Pflug v. Great Socialist People's Libyan Arab Jamahirya, No. 08–CV–505, which was filed on March 24, 2008. The named Libyan defendants were dismissed from each of these actions pursuant to the enactment of the Libya Claims Resolution Act, Pub.L. No. 110–301, 122 Stat. 2999 (2008), but the plaintiffs' claims remain pending against the following defendants: the Syrian Arab Republic; the Syrian Air Force Intelligence agency (Idarat al-Mukhabarat al-Jawiyya); and Syria's Director of Military Intelligence (General Muhammad al-Khuli) (hereinafter collectively the “Syrian defendants” or “Syria”). These actions came before this Court as the subject of an evidentiary hearing held on May 3–7, 2010. Pursuant to those hearings and the evidence before me, the Court has made the following findings of fact and conclusions of law.

II. SUMMARY OF FINDINGS

These actions seek judgment and an award of damages for acts of state-sponsored terrorism that resulted in the hijacking of EgyptAir Flight 648 on November 23, 1985, while the aircraft was bound for Cairo, Egypt from Athens, Greece, and the execution-style shooting of three Americans, the plaintiffs in these actions: Patrick Scott Baker; Jackie Nink Pflug; and Scarlett Marie Rogenkamp.

The Court, having heard and reviewed the evidence, does hereby determine (i) that the hijacking of EgyptAir Flight 648 on November 23, 1985 (the “EgyptAir hijacking”) was an act of international terrorism; (ii) that the terrorist shootings of the American victims of the EgyptAir hijacking—Patrick Baker, Jackie Pflug, and Scarlett Rogenkamp—were acts of international terrorism that occurred during and as a result of the November 23, 1985 terrorist hijacking; (iii) that said hijacking was committed by terrorist operatives of the Abu Nidal Organization (“ANO”), which has been designated by the U.S. Department of State as a Foreign Terrorist Organization; (iv) that the ANO, at the time of and prior to the EgyptAir hijacking, was sponsored and supported by Syria, which has been designated by the U.S. Department of State as a State Sponsor of Terrorism; (v) that the Syrian Arab Republic, the Syrian Air Force Intelligence agency, Idarat al-Mukhabarat al-Jawiyya, and Syria's Director of Military Intelligence, General Muhammad al-Khuli, conspired with and provided substantial and material support to the ANO terrorist organization; and (vi) that the Syrian defendants caused and are liable for the acts of international terrorism against the plaintiffs, for which the Court will award damages as set forth below.

The Court further finds that the Syrian defendants provided material support and resources and conspired with the ANO in the planning, training, support for, and commission of the EgyptAir hijacking, and that the lead ANO terrorist operative, Omar Ali Rezaq, was trained and supported by the Syrian defendants. The Court finds that the Syrian defendants intended that their support of the ANO would promote and cause extrajudicial killings of American citizens, as well as necessarily result in the property destruction of the EgyptAir airplane incidental to the goals and objectives of the Syrian defendants and the ANO terrorists. The Court finds that Syria's actions could not have occurred without the explicit authorization by then-Syrian President Hafiz al-Asad. Accordingly, the Court will enter judgment and grant an award of damages on behalf of the plaintiffs against the Syrian defendants as set forth below.

III. STATEMENT OF THE CASE

Plaintiffs brought this action pursuant to the provisions of the Foreign Sovereign Immunities Act (“FSIA”), codified at 28 U.S.C. § 1602, et seq.² The Syrian defendants were served with process on June 28, 2003. ³ The Syrian defendants have neither answered nor appeared.

A five-day hearing on liability and damages was held, commencing on May 3, 2010.⁴ During the hearing, this Court accepted evidence in the form of, inter alia, live testimony, live video-link testimony, affidavit, de bene esse deposition, and original documentary evidence. The Court also accepted credible expert testimony from eight well-qualified experts on various subjects related to the issues pending before the Court in this matter.⁵ Accordingly, this Court makes the following findings of fact and conclusions of law.

IV. FINDINGS OF FACTA. The EgyptAir Flight 648 Hijacking

1. On November 23, 1985, plaintiffs Baker, Pflug, and Rogenkamp, each of whom were American nationals, boarded EgyptAir Flight 648, which departed Athens at 9:05 pm Athens time. (Baker, T–2–47; Pflug, T–1–33; Rezaq, Pltf's Exh. 34 at 2741; Pltf's Exh. 35.)

2. EgyptAir Flight 648 was scheduled to fly directly to Cairo from Athens. (Baker, T–2–47; Pltf's Exh. 3.)

3. Approximately 10 minutes after leveling off, the plane was hijacked. (Baker, T–2–47–48.)

4. One of the hijackers began to taunt passengers on board by attempting to pull a pin out of a hand grenade while simultaneously brandishing a firearm. (Baker, T–2–48–51.)

5. During this time, Pflug was struck over the head with a gun by a hijacker. (Pflug, T–1–34.)

6. At 8:28 pm Malta time, three ANO hijackers, including Omar Mohammed Ali Rezaq, took control of the EgyptAir airliner. (Baker, T–2–84; Pflug, T–1–35; Pltf's Exh. 3.)

7. The ANO hijackers directed an EgyptAir flight attendant to go onto the aircraft intercom and say, “[w]e're being hijacked by the Egypt Revolution, and if you do what you are told, you will not get hurt.” (Pflug, T–1–36.)

8. After taking control of EgyptAir Flight 648, the ANO hijackers began searching the passengers, collecting their passports and reseating them. (Baker, T–2–5; Pflug, T–1–39.)

9. The hijackers worked their way from the front of the plane to the back of the plane. (Pflug, T–1–39.)

10. Approximately thirty minutes after taking control of the plane, at approximately 9:00 pm Malta time, there was a shootout between an EgyptAir sky marshal (who was onboard the aircraft) and the hijackers. (Baker, T–2–52, 84; Pflug T–1–39; Pltf's Exh. 3.)

11. The aircraft's fuselage was punctured by bullets, and the plane rapidly descended. (Baker, T–2–52–53; Pflug, T–1–41.)

12. Because of the need for fuel, EgyptAir Flight 648 landed at Malta's Luqa Airport at 10:16 pm. (Baker, T–2–84; Pltf's Exh. 3; Pflug, T–1–50; Baker, T–2–55.)

13. Shortly after landing in Malta, stairs were brought to the EgyptAir aircraft, and a medic was allowed onboard. (Baker, T–2–56.)

14. The medic certified that one of the hijackers shot during the shootout with the Egyptian air marshal was dead. (Baker, T–2–56.)

15. While the medic was taking the injured Egyptian air marshal off of the aircraft, Rezaq shot the air marshal in the back. (Baker, T–2–56.)

16. The hijackers then demanded fuel, and indicated that they were prepared to execute 6 passengers in order to ensure their demands were met. (Lang, T–2–157.)

17. As the hijackers were waiting for the fuel to arrive, they called forward and released some of the passengers based on their nationalities, as determined from their respective passports. (Baker, T–2–57.)

18. The hijackers threatened to shoot a passenger every fifteen minutes if they did not receive fuel. (Pltf's Exh. 34 at 2783.)

19. Shortly after releasing some of the passengers, Omar Rezaq summoned the first Israeli passenger, Tamar Artzi, and shot her in the head, throwing her body off the aircraft onto the tarmac. It was midnight Malta time on November 24, 1985. (Baker, T–2–84; Pltf's Exh. 3.)

20. Pflug was seated next to an Australian man, who told Pflug that the first Israeli woman who was shot was moving on the tarmac. (Pflug, T–1–51.)

21. Pflug thought to herself (of the woman), “Whatever you do, don't move, just play dead.” (Pflug, T–1–51.)

22. The hijackers, having discovered that the Israeli woman was still alive, shot her again while she lay on the tarmac. (Pflug, T–1–51).

23. Approximately fifteen minutes after Artzi was shot, at 12:15 am, a second Israeli passenger, Nitzan Mendelson, was dragged to the front of the aircraft and shot in the head by Omar Rezaq. (Baker, T–2–85; Pltf's Exh. 3.)

24. Her body was also thrown from the aircraft onto the tarmac. (Baker, T–2–58.)

25. After the two Israeli women were shot, Baker commented to a woman sitting next to him that he was going to be next. (Baker, T–2–58.)

26. Approximately 15 minutes after shooting the two Israeli passengers, the hijackers called the three American passengers—Baker, Pflug, and Rogenkamp—to the front of the plane. (Pflug, T–1–52; Baker, T–2–59.)

27. The three American passengers' hands were tied behind their backs with neckties, and they were seated in the first row on the starboard side of the plane. (Baker, T–2–59; Pflug, T–1–52.)

28. Shortly before 12:30 am Malta time, Baker was taken to the door of the aircraft. (Baker, T–2–60; Pltf's Exh. 3).

29. While standing at the door, Baker overheard a radio transmission broadcast from the Malta control tower: “There is to be no more killing. The fuel is on its way.” (Baker, T–2–60.)

30. Baker was allowed to sit down again. (Baker, T–2–60.)

31. Four and a half hours after the EgyptAir Flight 648 aircraft departed...