Gates v. Syrian Arab Republic

Citation580 F.Supp.2d 53
Decision Date26 September 2008
Docket NumberCivil Action No. 06-1500 (RMC).
PartiesFrancis GATES, et al., Plaintiffs, v. SYRIAN ARAB REPUBLIC, et al., Defendants.
CourtU.S. District Court — District of Columbia

Steven R. Perles, Edward MacAllister, Perles Law Firm, P.C., Washington, DC, John F. Salter, Roy E. Barnes, The Barnes Law Group, LLC, Marietta, GA, for Plaintiffs.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

It was a sunny day somewhere in Iraq and a light wind blew the long curtains into the room through the open door. A group of men clad in total black, faces covered, stood on a Persian rug facing a camera. Before them, a single man knelt. Dressed in an orange jumpsuit, hands bound behind his back, feet similarly bound, with eyes covered and mouth gagged, he rarely moved. One of the standing men began to read a proclamation in Arabic. It continued at length. Suddenly he stopped. The man in the orange jumpsuit tensed. Another of the men in black stepped forward and knocked the kneeling man over onto his side. Brandishing a knife, the man in black began to slice at the neck of the victim lying on the floor. The dying man audibly moaned and gurgled, as it took some time to cut all around his neck and through his bones before the head could be lifted in seeming triumph.

There is no doubt that al-Tawhid wal-Jihad ("al-Qaeda in Iraq") beheaded U.S. civilian contractors Jack Armstrong and Jack Hensley in the manner described, which it videotaped and played on the Internet for all the world, and ultimately this Court, to see. The question raised by this lawsuit is whether the Syrian Arab Republic can be held liable for money damages to the families of the two men pursuant to the Foreign Sovereign Immunities Act (the "FSIA"), 28 U.S.C. § 1602 et seq.

I. PROCEDURAL POSTURE

Plaintiffs are Francis Gates and Jan Smith,1 the mother and sister of Jack Armstrong, and Pati and Sara Hensley, the widow and minor daughter of Jack Hensley. Plaintiffs filed this action on August 25, 2006, against Defendants who include: the Syrian Arab Republic ("Syria"); the president of Syria, Bashar al-Assad; the Syrian Military Intelligence, known as the al-Mukhabarat al-Askariya; and the Director of Military Intelligence, General Asif Shawkat. Plaintiffs allege that, acting through these principals, Syria provided material support and resources to the al-Tawhid wal-Jihad ("al-Qaeda in Iraq") and its leader, Abu Mus'ab al-Zarqawi ("Zarqawi"). Plaintiffs assert a cause of action under the FSIA, 28 U.S.C. § 1605A, as well as the following causes of action under state law: battery; assault; false imprisonment; intentional infliction of emotional distress; wrongful death; action for survival damages; conspiracy; and aiding and abetting.

None of the Defendants filed an answer or otherwise appeared. The Court proceeded to a default setting as provided by 28 U.S.C. § 1608(e), which requires a court to enter a default judgment against a non-responding foreign state only where "the claimant establishes his claim or right to relief by evidence satisfactory to the court." Id. The Court held a three-day hearing on liability and damages beginning on January 7, 2008.2 Plaintiffs presented evidence in the form of live testimony, videotaped testimony, affidavit, and original documentary and videographic evidence. Applying the Federal Rules of Evidence, the Court ruled that certain proposed evidence could not be admitted. Plaintiffs presented credible expert testimony from four experts and from an Iraqi countryman concerning Syria's assistance to Zarqawi and al-Qaeda in Iraq. From the entire record, including Plaintiffs' post-hearing filings, the Court makes the following findings of fact and conclusions of law.

II. FINDINGS OF FACT
A. The Murders of Jack Armstrong and Jack Hensley

1. Olin Eugene "Jack" Armstrong and Jack L. Hensley were non-combatants, employed by a private sub-contractor as civilian project managers in Iraq, in September 2004. They did not provide armed security or bodyguard services; rather, they provided technical and operational assistance and resources for the military in non-combat environments in Iraq 2. Mr. Armstrong had a history of working in foreign lands as a civilian construction engineer. He first took a construction engineering job in Croatia in early 1994, working for a subcontractor to the United Nations. Smith T-2-87. He later worked in Angola, the site of another United Nations humanitarian effort in the wake of the crisis in neighboring Rwanda. Id. at 92.

3. Mr. Armstrong lived in Thailand between jobs and had a committed relationship with a Thai woman with whom he planned to begin a cooperative farm. Smith T-2-94-95. Mr. Armstrong signed a year-long contract to work in Iraq to earn enough money to start the farm. Id.

4. Mr. Armstrong is survived by his mother, Francis Gates, and his sister, Jan Smith. They both had a close relationship with him. Smith T-2-85-86; Gates T-2-105, 108.

5. Jack Hensley held a college degree in mathematics and computer science. When he was working for an international construction and engineering firm, he met Pati, who became his wife. Jack worked in Saudi Arabia while Pati worked in Maryland. They both were later transferred to a coal export project in Colombia. They married on Christmas Eve in 1985. Hensley T-3-19-21.

6. Jack and Pati settled in Marietta, Georgia, where Jack went to work with Wang Laboratories ("Wang") as its computer operations manager for the Southeast region. He stayed with Wang for eleven years, during which time Pati gave birth to their daughter, Sara. Jack was a loving father to Sara, becoming her coach, school volunteer, and tutor in math and science, tennis and horseback riding. Hensley T-3-21, 27.

7. Wang then went out of business and Jack and Pati opened a neighborhood restaurant in Marietta named Networks. The business did not do well and, over the years, drained their savings. When Jack's mother was diagnosed with Alzheimer's, the Hensleys moved her into their home. Hensley T-3-19-23. To support his family, Jack Hensley took four part-time jobs but could not fully reverse their financial difficulties. When a recruiter offered Mr. Hensley a job in Iraq, he saw it as an opportunity to restore financial security to his family. Having worked in Saudi Arabia earlier, Jack Hensley believed he had an understanding of Muslim culture. His acceptance of the job also helped his family avoid bankruptcy. Mr. Hensley signed a year-long contract to work in Iraq to stabilize the family's finances and avoid bankruptcy. Hensley T-3-19-24-25, 28.

8. Messrs. Armstrong and Hensley lived in Iraqi residential housing, guarded by Iraqi militia. It is reported that these guards abandoned their posts upon a small payment, which allowed both men and Kenneth Bigley, an English national, to be kidnapped in September 2004. Shortly afterward, on September 18, 2004, a video was released on the Internet that showed the three hostages blindfolded and held captive by armed men. The video was disseminated in an online web forum that was a well-known repository of authentic messages from Zarqawi and al-Qaeda in Iraq. Kohlmann T-1-36. The videos prominently displayed the logo for Zarqawi's terrorist organization, a logo not used by any other terrorist group. Id. at 38.

9. On September 20, 2004, a message was released in the same online web forum, where Zarqawi messages and videos had been previously posted, announcing the murder of one of the hostages. Kohlmann T-1-38-39. A video was released later on the same day, on the same online web forum, that depicted the gruesome murder of Jack Armstrong. Id. at 40.

10. On September 21, 2004, a message was released on the same online web forum announcing the murder of a second hostage. Kohlmann T-1-43. As before, a video was released later the same day. This video depicted the gruesome murder of Jack Hensley.3 Id. at 45.

11. There has never been any dispute as to who killed Jack Armstrong or Jack Hensley or a competing claim of responsibility by another terrorist group. The United States found that Zarqawi and Al-Qaeda in Iraq "claimed responsibility for the videotaped execution by beheading of Americans Nicholas Berg (May 8, 2004), Jack Armstrong (September 20, 2004), and Jack Hensley (September 21, 2004)." Pls.' Trial Brief, Ex. 27, Country Reports on Terrorism 2005, U.S. Dep't of State, Office of the Coordinator for Counterterrorism at 220 (April 2006).

12. Al-Qaeda in Iraq published propaganda on the Internet that glorified its acts of terrorism, mayhem and murder. Kohlmann T-1-26, 30. Al-Qaeda in Iraq also issued claims of responsibility for acts of violence in Iraq beginning with the videotaped beheading of American businessman Nicholas Berg in the spring of 2004. Id. at 26-28. In communiques that were consistently formatted in the same way, and presented through the same identified Zarqawi propaganda mouthpieces in online web forums, strikingly similar videos were released, promoted, and redistributed across the Internet depicting all three murders. Id. at 26-28, 36.

13. After the murders of Messrs. Armstrong and Hensley, a number of critics in the Muslim world argued that it was cowardly to behead civilian hostages. Kohlmann T-1-47. Al-Qaeda in Iraq defended the practice in a message from the same online forum user who had posted the previous messages announcing the murders and showing the beheadings on video. Id.

14. The execution videos of Mr. Armstrong and Mr. Hensley follow the same pattern. The videos depict each American man blindfolded, gagged, and kneeling on the ground. As becomes evident, their hands and feet are tied. The terrorists stand immediately behind, faces concealed by black hoods. Several brandish assault rifles. One of them reads a polemic statement in Arabic. When the reading is finished, one terrorist produces a knife. He knocks over the American and...

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