Ungar v. Islamic Republic of Iran

• Decision Date: 26 June 2002
• Docket Number: No. CIV.A. 00-2606(JR).,CIV.A. 00-2606(JR).
• Parties: Dvir UNGAR, et al., Plaintiffs, v. The ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 91

211 F.Supp.2d 91

Dvir UNGAR, et al., Plaintiffs, v. The ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

No. CIV.A. 00-2606(JR).

United States District Court, District of Columbia.

June 26, 2002.

David Strachman, McIntyre, Tate, Lynch & Holt, Providence, RI, for Plaintiffs.

MEMORANDUM OPINION

ROBERTSON, District Judge.

Yaron Ungar and his wife Efrat were murdered in a terrorist machine gun attack on June 9, 1996, near Beit Shemesh, Israel. Five Palestinian men took part in the murders. Four of the five were apprehended and confessed to the Ungar murders and to other crimes. In this action, the Estate of Yaron Ungar and members of his family seek to recover compensatory and punitive damages arising from the murders.¹

The plaintiffs have sued the Islamic Republic of Iran, the Iranian Ministry of Information and Security (MOIS), and three Iranian government officials in this Court.² Foreign states and individual officeholders acting in their official capacities are ordinarily immune from suit in our courts, but there are exceptions. One of them, added to the Foreign Sovereign Immunities Act (FSIA) in 1996, is for claims arising out of state-sponsored terrorism.³ The complaint in this case invokes that exception by alleging that the defendant Republic of Iran was and is a state sponsor of terrorism; that the other defendants were and are, respectively, an agency and officials of Iran; and that the murders of Yaron and Efrat Ungar were extrajudicial killings for which the defendants provided "material support or resources" within the meaning of 28 U.S.C. § 1605(a)(7). Complaint ¶¶ 8-12, 15-32. The defendants were served with process pursuant to 28 U.S.C. § 1608, none of them appeared to defend, and their defaults were entered on June 28, 2001. Plaintiffs then moved for a default judgment.

If a foreign state is not entitled to immunity on a claim, it will be held liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 1606. It may be held liable by default, however, only if the claimant "establishes his claim or right to relief by evidence satisfactory to the court." Id. § 1608(e).⁴ For reasons set forth in a memorandum issued on January 4, 2002, I decided to bifurcate plaintiffs' motion for default judgment and to consider whether plaintiffs had produced satisfactory evidence of the defendants' liability before receiving proof of damages. An evidentiary hearing was set for January 15, 2002. Counsel was directed to focus on three specific questions: "What evidence is there of a causal link between Iran's support for Hamas and the specific attack in this case? What evidence is there of a relationship giving rise to respondeat superior liability? What is the evidence that supports the plaintiffs' civil conspiracy theory?" Memorandum of 1/4/02, at 8.

At the evidentiary hearing, plaintiffs presented documentary evidence and adduced the expert testimony of Ronni Shaked, a former Israeli security commander; Dr. Reuven Paz of the International Policy Institute for Counter-Terrorism in Israel; and Dr. Patrick Clawson of the Washington Institute for Near East Policy. After the hearing, plaintiffs were directed to file English translations of the confessions upon which the expert witnesses, especially Mr. Shaked, relied. Those translations were filed on April 3, 2002.

Findings of Fact

The findings set forth below that deal with Iran's status as a state sponsor of terrorism and with the relationship between Iran and HAMAS are similar to findings made by other judges of this Court in other cases seeking damages for HAMAS attacks from Iran, her agencies, and officials. Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C.2002); Mousa v. Islamic Republic of Iran, Civ. No. 00-2096 (D.D.C. Sept. 19, 2001); Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1 (D.D.C.2000).

1. At the time of its revolution in 1979, Iran adopted a formal policy of supporting Islamic-based revolutionary organizations throughout the Middle East. Tr. 1/15/02 at 21-22. Harakat Al-Muqawama Al-Islamiyya (HAMAS) is one of those organizations. An outgrowth of the Muslim Brotherhood movement, HAMAS was founded in 1987 to pursue the creation of an Islamic state, first in Palestine and then throughout the Middle East. HAMAS is a Sunni Muslim organization and was at first highly suspicious of Iran's Shiite regime. As the Palestinian Liberation Organization and Israel began to negotiate a peaceful settlement of Palestinian claims after the Gulf War, however, HAMAS and Iran grew closer until they had formed what the witnesses called a "partnership." Id. at 17-23, 65-68, 92-93, 97-100. The relationship between HAMAS and Iran was described using an established Israeli metaphor:

Your Honor, it is like a cow. On the one hand the cow wants to give milk. That's Iran. And on the other hand, Hamas wants to drink the milk.... Iran wanted to export its revolution. Hamas wanted to get weapons, to get money, to get facilities for to train the people; and the only place that they can do it, it is in Iran.

1/15/02 Tr. at 22-23; see also id. at 70-71. By the mid 1990s, Iran and HAMAS were cooperating for purposes of jihad, or violent struggle, specifically to disrupt the Israel-PLO peace process. Id. at 19-21, 23, 98; Pl.Ex. 63.

2. Iran provided HAMAS with tens of millions of dollars, weapons and explosives, terrorism training, and other assistance through MOIS⁵ and through Hizbollah, its agent in Lebanon.⁶ Tr. 1/15/02 at 25-34, 70-72, 79-82, 86-88, 98-100. Several hundred HAMAS members are believed to have received intensive terrorism training in Iran. Id. at 28-29, 34, 69. This cadre— unlike the larger number of frontline HAMAS fighters given short-term training in Lebanese Hizbollah camps—was trained to be leaders and to provide further training within HAMAS. Id. at 32, 72.

3. Relations between Iran and HAMAS were particularly close in 1996, the year of the Ungar murders and the year in which Iran was designated by the United States Department of State as "the" premier state sponsor of terrorism. Pl.Ex. 29, Overview of State Sponsored Terrorism at 2. HAMAS claimed responsibility for four suicide bombings in February and March 1996. After the first two of them, Iran sent its vice-president to meet with HAMAS leaders and to praise them publicly. Id. Iran is also believed to have provided cash payments to HAMAS and to the families of suicide bombers as a means of encouraging HAMAS' opposition to the peace process. Tr. 1/15/02 at 98-101. The HAMAS bombings precipitated early elections in Israel and were largely credited with undermining public confidence in Prime Minister Shimon Peres, who lost to the more hard-line Benjamin Netanyahu in May 1996. Pl.Ex. 29, Introduction at 1; Tr. 1/15/02 at 105.

4. Beginning in March 1996, HAMAS tactics shifted away from suicide bombings and focused instead on kidnaping soldiers and attacking with machine guns from moving vehicles. Tr. 1/15/02 at 75. Plaintiffs' experts placed particular emphasis on the difficulty of hitting targets while firing machine guns from moving vehicles and asserted that only Iranian-trained HAMAS members—or HAMAS members trained by Iranian-trained HAMAS members— could do it. Id. at 28-29, 47-48, 75-76. The Ungars were attacked, with Kalashnikov machine guns, from a moving vehicle. Mr. Shaked characterized the attack as "a perfect example of the Iranian—what we call contribution to Hamas," emphasizing the need, when shooting from a moving vehicle, to "shoot before, a little bit before the car, not into the car." Id. at 47-48. The confessions of the attackers, however, make it clear that their car was overtaking, not meeting, the Ungar's car. Confessions at 5, 89.

5. The link between the Iranian defendants and the Ungar murders, in the opinion of plaintiffs' experts, was in the connections between and among Abdel Rahman Ismail Abdel Rahman Ghanimat (Ghanimat), Nasser Salah Talachmeh (Talachmeh), and Hassan Salame (Salame). Ghanimat was the leader of the group that carried out the attack and one of the shooters from the attacking car. The experts testified that Ghanimat's group was ineffective (as terrorists) until sometime in late 1995, when Ghanimat hooked up with Talachmeh, who was characterized (by plaintiff's counsel) as a "proper HAMAS commander." Tr. 1/15/02 at 53-54, 78-79. The experts said that Talachmeh became Ghanimat's "handler" and provided him with a Kalashnikov automatic rifle. Id. at 53-54, 78.

6. The experts thought it more likely than not that Talachmeh also arranged for Ghanimat and perhaps other members of the group to obtain training from Salame, an "arch-terrorist" who had himself been trained for four months in Iran, id. at 56, 72, was an "expert in using weapon[s] and explosive[s]," and was "[m]ore than an adviser" to Talachmeh: "He was the man that gave him the way how to do and what to do." Id. at 59. However, because HAMAS trainers are hooded and masked, the experts stated that there was no way to determine Salame's identity for sure.

[Mr. Shaked:] [W]e don't know exactly if [Salame] trained only Ghanimat or the other one from the cell that we are talking about because when they get an order to go and be trained, you know as a modus operandi, they were masked and I'm sure again when we are talking about a terrorist organization and talking about Hamas, somebody from a higher rank has to show and to train other people; and in 1996, not so many people, good train—like Hassan Salame.

Q. But was he the trainer for this—for Mr. Talachmeh's group?

A. I don't say—I can't say exactly if he was the man, but according to the modus operandi, and according to what we can—we know the structure of Hamas, and the way that they behave, I can say that he was the man. Not others. Because we don't know exactly who was that. If because the people who were there, the people who gave—we're talking about the—the man who...