Wagner v. Islamic Republic of Iran

• Decision Date: 06 November 2001
• Docket Number: No. Civ.A. 00-1799(TPJ).,Civ.A. 00-1799(TPJ).
• Citation: 172 F.Supp.2d 128
• Parties: Raymond D. WAGNER, et al. Plaintiffs, v. THE ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

172 F.Supp.2d 128

Raymond D. WAGNER, et al. Plaintiffs, v. THE ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

No. Civ.A. 00-1799(TPJ).

United States District Court, District of Columbia.

November 6, 2001.

COPYRIGHT MATERIAL OMITTED

Stuart Henry Newberger, Crowell & Moring, L.L.P., Washington, DC, for Raymond D. Wagner, individually on his own behalf and as Executor of the Estate of Michael R. Wagner, deceased, Dorothy J. Wagner, Steven W. Wagner, Rebecca W. Quate, plaintiffs.

DECISION AND ORDER

JACKSON, District Judge.

Shortly before noon on Thursday, September 20, 1984, U.S. Navy Petty Officer First Class Michael Wagner died a violent death at his duty station at the U.S. Embassy in Beirut, Lebanon. The manner of his death was homicide. The cause of death was massive trauma sustained in the explosion of a car bomb driven onto the embassy compound at high speed and detonated at the base of the building by a suicide bomber acting in the service of Hizballah (also on occasion known as "Islamic Jihad"), a terrorist organization operating primarily in Lebanon at that time.¹

This action for the wrongful death of Michael Wagner is prosecuted by Raymond D. Wagner, individually, and as representative of the Estate of Michael Wagner, his deceased son. Co-plaintiffs are Michael Wagner's surviving younger siblings, Stephen W. Wagner and Rebecca Wagner Quate, and the Estate of Michael's deceased mother, Dorothy J. Wagner.² Defendants are the Islamic Republic of Iran ("Iran") and the governmental agency known as the Iranian Ministry of Information and Security ("MOIS"). Neither Iran nor MOIS has deigned to appear and defend, and the case has therefore proceeded by default. The action is brought pursuant to certain 1996 amendments to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602-1611, which enabled such actions to be brought for the first time, with the Court's jurisdiction being predicated upon 28 U.S.C. §§ 1330(b) and 1605(a)(7). The Court held an evidentiary hearing on October 16-17, 2001, from which the facts set forth below are found pursuant to Fed.R.Civ.P. 52(a) upon evidence satisfactory to the Court.³

I.

Michael Ray Wagner, a U.S. citizen, was born in Columbia, N.C., in July, 1954. He attended college in North Carolina for four years, then enlisted in the U.S. Navy in June of 1977. Trained by the Navy as an intelligence specialist, after serving at sea on the U.S.S. Midway and elsewhere in the Pacific region, Michael Wagner volunteered for assignment to the U.S. Embassy in Beirut, Lebanon, reporting for duty in November, 1983.

In 1983, Lebanon was a nation embroiled in a civil war, as it had been for several years. Armed factions organized largely upon religious orientations were contending with one another for control of the country, including, in particular, its capital, Beirut, with exchanges of heavy gunfire occurring daily at all hours throughout the city. Several neighboring countries were striving to affect the outcome, and two of them — Iran and Syria — were simultaneously exploiting the disorder in attempts to achieve a dominant influence in Lebanese affairs, as well as to expunge all Western influence, primarily American, from the Middle East region altogether. The principal weapon employed against Westerners was terrorism: kidnaping, hostage-taking, assassination, and the like, including car bombings. In the months preceding Wagner's arrival in Beirut, terrorist car bombs had destroyed the original U.S. Embassy in West Beirut in April, 1983, and the U.S. Marine barracks near the airport the following October. In November, 1983, when Wagner arrived in Lebanon, the U.S. Embassy had transferred embassy operations to a new building in East Beirut.⁴

Accordingly to the testimony of the U.S. Ambassador at the time, Reginald Bartholomew, on the morning of September 20, 1984, he was conferring with his British counterpart in his office on the sixth floor of the Embassy when the bomber made his approach to the building. Accelerating up the hill in a station wagon, the bomber was obliged to drive a sinuous course negotiating his way around several concrete barriers erected to impede such an attack. The vehicle was taken under fire by gunners of the Ambassador's Lebanese bodyguard on the roof, as well as a British unit escorting its ambassador,⁵ and the driver may well have been hit before detonating the bomb: He was unable to negotiate a sharp turn into the underground garage, later assumed to be his destination because the blast would have been yet more devastating had he reached it.

The vehicle exploded in the vicinity of a concrete cistern filled with water at the front of the Embassy. Although the cistern absorbed some of the force of the explosion, the bomb, containing, by Ambassador Bartholomew's informed estimate, some 1500 kilograms of explosives, demolished the embassy building, wounded the Ambassador, and killed Petty Officer Wagner, age 30, in the second floor office he shared with an Army colleague, Chief Warrant Officer Kenneth V. Welch, who was also killed. The blast also killed 12 Lebanese, wounded 60 other people, and rendered the second U.S. Embassy building in Beirut in less than two years uninhabitable.

II.

The testimony of retired U.S. Ambassador Robert B. Oakley and Dr. Patrick L. Clawson. Director of Research at the Washington Institute for Near East Policy, together with declassified intelligence materials from the U.S. Department of State and the Central Intelligence Agency admitted into evidence by the Court, conclusively establish the identity of the perpetrators of the September 20, 1984, bombing of the U.S. Embassy in Beirut. As in the numerous prior kidnaping cases tried to this district court, the perpetrators were shown to be the militant Islamic fundamentalist Shi`ite organization known as Hizballah, the Lebanese organization publicly committed to the expulsion of the American presence in Lebanon by terrorist means, as well as to the post-war reincarnation of Lebanon as an Islamic fundamentalist state. Hizballah, in turn, has been shown to be an agency or instrumentality of the Iranian MOIS, employed (somewhat less publicly) by the MOIS to achieve similar ends — by terrorist means when necessary — as well to establish Iranian ascendancy as the premier Islamic patron of the Shi`a population in Lebanon.

On the day after the bombing, Ambassador Oakley, the newly appointed Director of the Office of Terrorism, U.S. Department of State, traveled to Beirut to meet with Ambassador Bartholomew. Within two weeks his investigation had acquired satellite photo evidence of an exact replica of the obstacle-strewn approach to the U.S. Embassy, situated at the Sheik Abdullah Barracks in the Bekka Valley of Lebanon, obviously constructed as a training device for the suicide bomber-to-be. Iranian Revolutionary Guards were known to be quartered at the barracks, where members of Hizballah were also quartered and trained, and in other cases the barracks have been shown to be one of the places of confinement for American hostages seized by Hizballah.

In summary, the testimony and documentary evidence is largely duplicative of the evidence upon which this and other district judges have repeatedly found that Hizballah has committed acts of terrorism at the behest of, and with the direction, support, and collaboration of the Iranian MOIS.

III.

A foreign state is generally immune from the jurisdiction of the courts of the United States under the FSIA. See 28 U.S.C. § 1604. The FSIA does, however, contain certain statutory exceptions to the broad grant of sovereign immunity it accords foreign states, one of which affords the basis upon which this Court may entertain this suit. See Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 11 (D.D.C.1998). In the amendments to FSIA enacted by the Antiterrorism and Effective Death Penalty Act of 1996, Congress empowered private litigants to sue foreign states that sponsor terrorism for certain acts that result in personal injury or death if either the claimant or a victim was a citizen of the United States at the time. Specifically, section 1605(a)(7) of the FSIA authorizes a cause of action against a foreign state for:

personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment or agency ....

28 U.S.C. § 1605(a)(7).

Thus, for this Court to exercise subject matter jurisdiction over plaintiffs' claims in this case, the evidence must establish that (1) Iran has been designated a state sponsor of terrorism at the time the act occurred, unless later so designated as a result of such act; and (2) either Michael Wagner or plaintiffs were United States citizens at the time of the incident.⁶ Both conditions are satisfied here. Iran was formally declared a state sponsor of terrorism on January 23, 1984, by U.S. Secretary of State George P. Schultz, and both Michael Wagner and his surviving kin, the plaintiffs, have at all times been U.S. citizens.

Plaintiffs' cause of action is predicated on the murder of Michael Wagner in the September, 1984 bombing of the U.S. Embassy in Beirut by Hizballah.⁷ It is clear that the suicide bombing of the U.S. Embassy was a deliberate and premeditated act that qualifies as an extrajudicial killing for purposes of the FSIA. See Flatow, 999 F.Supp. at 16-18 (suicide bombing of a tourist bus that resulted in the death of plaintiff's daughter was an extrajudicial killing). There is no evidence that it was judicially sanctioned by any lawfully constituted tribunal.⁸ It is equally apparent from the evidence before this Court that Hizballah, a terrorist organization substantially funded and supported by...