Flanagan v. Islamic Republic of Iran

• Decision Date: 31 March 2015
• Docket Number: Civil Action No.: 10–1643 RC
• Citation: 87 F.Supp.3d 93
• Parties: Saundra Flanagan, et al., Plaintiffs, v. Islamic Republic of Iran, et al., Defendants.
• Court: U.S. District Court — District of Columbia

87 F.Supp.3d 93

Saundra Flanagan, et al., Plaintiffs

v.Islamic Republic of Iran, et al., Defendants.

Civil Action No.: 10–1643 RC

United States District Court, District of Columbia.

Signed March 31, 2015

Jennifer L. Kent, Joshua M. Ambush, Law Offices Joshua M. Ambush, LLC, Baltimore, MD, for Plaintiffs.

Re Document No.: 29

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Granting Plaintiffs' Motion for Default Judgment

RUDOLPH CONTRERAS United States District Judge

This case arises out of the October 12, 2000, terrorist bombing of the U.S.S. Cole (“the Cole”) in Yemen, which resulted in the death of seventeen American sailors, including Electronic Warfare Technician First Class Kevin Shawn Rux (“Kevin”). First Amended Complaint [# 18] at 1. The plaintiffs are Kevin's mother (“Doe Victim A”) and his four brothers (“Doe Victim B,” “Doe Victim C,” “Doe Victim D,” and “Doe Victim E”). Id. ¶¶ 4–8. The defendants are: 1) the state of Iran and its agencies and instrumentalities, to include a) the Iranian Ministry of Intelligence and Security, b) the Iranian Islamic Revolutionary Guard Corps, and c) the Iranian Islamic Revolutionary Guard Corps–Qods Division (“the Iranian defendants”); 2) the state of Sudan and its agencies and instrumentalities, to include a) the Sudanese Ministry of the Interior, b) the Sudanese Ministry of Defense, c) the Security of the Revolution, d) the Sudanese Military Intelligence, e) the Sudanese State Security, f) the Sudanese Popular Defense Force, and g) the Revolutionary Security Services (“the Sudanese defendants”); and 3) the state of Syria and its agencies and instrumentalities, to include a) the Syrian National Security Directorate, b) the Syrian Republic Guard, c) the Syrian Ministry of Interior, d) the Syrian Military Intelligence Service, e) the Syrian Air Force Intelligence, and f) the Syrian Special Forces (“the Syrian defendants”).Id. ¶¶ 9–15. The plaintiffs' claims for intentional infliction of emotional distress (“IIED”) and solatium are brought under section 1605A of the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602 et seq.¹ Id. ¶¶ 2, 138–144.

On October 31, 2012, defaults were entered against the Iranian and Sudanese defendants. See Default [# 26] at 1; Default [# 27] at 1. According to the plaintiffs, as of March 28, 2013, they were unable to effectuate service of process against the Syrian defendants. See Plaintiffs' Status Report [# 28] at 1. The plaintiffs decided, therefore, to proceed against the Iranian and Sudanese defendants. Id. at 2. Thus, currently pending and ready for resolution is Plaintiffs' Motion for Default Judgment Upon Evidentiary Hearing Against Iranian and Sudanese Defendants [# 29].

An evidentiary hearing on liability and damages was held on August 12, 2014.² At that hearing, the Court took judicial notice of the evidence presented in Rux v. Republic of Sudan, 495 F.Supp.2d 541 (E.D.Va.2007), another case arising out of the same incident.³ See Transcript of Evidentiary Hearing Before the Honorable John Facciola United States [Magistrate] Judge [# 40] at 11. In addition, the Court accepted evidence in the form of live testimony, affidavits, and documentary evidence.

Finally, the Court also accepted testimony from five qualified experts. As to the Sudanese defendants' relationship with and support for Al–Qaeda, the Court accepted the testimony of: 1) Lorenzo Vidino, PhD, a senior fellow at the Center for Security Studies in Zurich, Switzerland;⁴ and 2) Dale L. Watson, former Assistant Director of Counterterrorism for the Federal Bureau of Investigation.⁵ As to the Iranian defendants' relationship with and support for Al–Qaeda, the Court accepted the testimony of: 1) Patrick Clawson, PhD, Director of Research at the Washington Institute for Near East Policy;⁶ 2) Daniel Byman, PhD, Professor at Georgetown University's Edmund A. Walsh School of Foreign Service; Research Director, Saban Center for Middle East Policy at the Brookings Institution;⁷ and 3) Dale L. Watson, again. Finally, plaintiffs offered the expert testimony of Larry H. Pastor, MD, FAPA, DABAM, a psychiatrist who works in the Office of Medical Services at the Central Intelligence Agency, in support of their claims for damages.⁸

FINDINGS OF FACT

I. Osama Bin Laden and Al–Qaeda⁹

1. During the Afghanistan war against the Soviet Union, from 1979 to 1989, Osama Bin Laden, the son of a Saudi construction magnate, organized and financed the recruitment and training of Arab nationals to join the Afghan national resistance movement in what was known as the anti-Soviet “jihad” or holy war. PEX 9¹⁰ at 55.¹¹

2. In approximately 1988, Bin Laden founded Al–Qaeda to serve as a base “for future jihad.” Id. at 56. Al–Qaeda's “structure included as its operating arms an intelligence component, a military committee, a financial committee, a political committee, and a committee in charge of media affairs and propaganda. It also had an Advisory Council (Shura) made up of Bin Ladin's inner circle.” Id.

3. Since its inception, Al–Qaeda has executed or inspired acts of terrorism around the world, including the September 11, 2001, attack on the United States, which have killed or injured thousands of innocent people. Id. at 47–63.

4. Specifically, “Bin Ladin saw himself as called ‘to follow in the footsteps of the Messenger and to communicate his message to all nations,’ and to serve as the rallying point and organizer of a new kind of war to destroy America and bring the world to Islam.” Id. at 48 (internal citations omitted). Accord PEX 1 at ¶ 11.

II. The Bombing of the U.S.S. Cole

5. “At approximately 8:30 a.m. on October 12, 2000, the Cole entered the Port of Aden, Yemen, to temporarily stop for refueling.” Rux, 495 F.Supp.2d at 544–45.

6. “The Republic of Yemen is a country of 203,850 square miles located on the southern coast of the Arabian Peninsula. Aden is a city of approximately 440,000 located on Yemen's south coast. The Port of Aden is a natural harbor with a deep draft in most areas and natural land protection on all sides.” Id. at 545.

7. “In February 1999, the Navy began using Aden instead of Djibouti as the primary refueling stop for American ships during their 3,000–mile journey to the Arabian Gulf from the Mediterranean Sea. Under a contract entered into between the United States and Yemen, U.S. Navy vessels could obtain fuel at one of two fueling ‘dolphins' located near the mouth of the harbor without going to the pier.” Id.

8. “The Cole, an Arleigh Burke Class Destroyer, was the twenty-fifth Navy ship to stop in Aden Harbor for refueling over the previous nineteen months. As of October 2000, the ship had a crew of twenty-six officers and 270 enlisted personnel. The Cole departed from its home port of Norfolk, Virginia, on August 8, 2000, before patrolling the Mediterranean Sea. On October 9, 2000, the ship transited the Suez Canal and headed for Yemen. At the time that the ship entered the Port of Aden on October 12, 2000, the U.S. Department of Defense terrorist threat level in Aden was ‘Threat Condition (THREATCON) BRAVO,’ which indicated an ‘increased and more predictable threat of terrorist activity.’ ” Id.

9. “At approximately 8:49 a.m., the Cole moored starboard side to Refueling Dolphin Seven, near the mouth of the harbor. The ship began refueling at approximately 10:31 a.m. At approximately 11:10 a.m., one of the sailors standing watch over the refueling noticed a small boat heading ‘fast and hard’ toward the Cole from the direction of the city. The boat, painted white with fire red trim, was about thirty-five feet long and six to seven feet wide and had a shallow V-hull. It looked ‘brand new.’ The boat was similar in size and shape to many other small vessels in the harbor, including the service craft that had been alongside the Cole. The boat was manned by two males, both of whom appeared to be in their early thirties. The two men slowed the boat as they approached the Cole, maneuvered it parallel to the ship and came down the port side headed aft. As they did so, the two men in the boat were smiling, and waved to the crew. Some crew members returned the greeting. Seconds later, the boat exploded.” Id.

10. “The explosion occurred between approximately 11:15 and 11:18 a.m., just as some of the crew was sitting down for lunch. The blast ripped a thirty-two-by thirty-six-foot hole in the port side.... Smoke, dust, and fuel vapors filled the air. The main engine room, auxiliary machine room, and the dry provisions storeroom were flooded. Several chambers, including the Crew and Chief Petty Officer's Galley, were structurally destroyed. The blast and its after-effects killed seventeen Navy sailors, all of them American citizens. Forty-two others were injured, some of them sustaining serious burns to their faces, hands and arms, as well as lacerations and fractures.” Id.

III. The Sudanese Defendants

A. Background

11. In 1989, General Omar Bashir assumed the presidency of Sudan in a military coup that overthrew the elected government and converted Sudan into an Islamic Arab state. PEX 7¹² ; PEX 8¹³ . The coup was orchestrated by Hassan al Turabi, head of the Sudanese political party, the National Islamic Front (“NIF”). PEX 6 at 57. Accord PEX 10¹⁴ at 6. Turabi was in power from 1989 until his fall in late 1999. PEX 10 at 6.

12. Following the Soviet withdrawal from Afghanistan in 1989, Bin Laden briefly returned to his home country of Saudi Arabia but had his passport seized by the government due to his relationship with extremists in Afghanistan. PEX 1–A¹⁵ at 2. At a time when Al–Qaeda found itself without a territory from which it could base its terrorist operations, Turabi offered the organization refuge in Sudan. PEX 9 at 57; PEX 1 at ¶ 15; PEX 1–A at 2.

13. Bin Laden moved to Sudan in 1991, and lived there until 1996, when he was expelled from the country under international pressure. PEX 11¹⁶ at 11.

14. Turabi and Bin Laden shared a common extremist ideological and religious outlook. PEX 9 at 61; PEX 1...