UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

NOALA FRITZ, et al.,
Plaintijj‘s,
v. Civil Action No. 15-456 (RDM)
ISLAMIC REPUBLIC OF IRAN, et al.,

Defendants.

 

 

MEMORANDUM OPINION

This case arises from the abductions and murders of four U.S. soldiers serving in Iraq. In
January 2007, First Lieutenant Jacob Fritz, Specialist Johnathan Bryan Chism, and Private First
Class Shawn Falter Were abducted from the Provincial Joint Coordination Center in Karbala, Iraq
and, shortly thereafter, murdered by their captors. In October 2006, Staff Sergeant Ahmed AI-
Taie Was abducted While in Baghdad, held hostage, and, ultimately, murdered. Plaintiffs, the
estates and family members ofthe four direct victims, contend that “[t]hese two separate
incidents of kidnapping and murder are linked” because “both Were planned and executed mere
months apart” by the same terrorist organization: Asaib Ahl al-Haq (“AAH”), a network of lraqi
Shia militias. Dkt. 38 at l. Significantly, plaintiffs assert that AAH benefited from and relied on
“training, funding, direction, and support” from Iran, Which lran provided as part of a
“coordinated scheme . . . to target U.S. service-members in Iraq.” Id. Without Iranian aid,
Plaintiffs continue, AAH could not have carried out the Karbala attack nor evaded the U.S.
military’s search for Staff Sergeant Al-Taie.

Plaintiffs, all except one of whom are U.S. nationals, bring this action against the Islamic

Republic of Iran, the Islamic Revolutionary Guard Corps (collectively, “Iran”), and five “John

Doe” defendants. To establish subject matter jurisdiction, they invoke the state-sponsored
terrorism exception to the Foreign Sovereign Immunities Act (“FSIA”). 28 U.S.C. § 1605A(a).
They rely on another provision in the statute, § 1605A(c), to supply a federal cause of action,
alleging that Iran provided “material support” to AAH, which in turn engaged in acts of
extrajudicial killing, hostage taking, and torture. Ia'. § 1605A(c). Plaintiffs also assert state
common law claims for wrongful death, battery, assault, false imprisonment, intentional
infliction of emotional distress including solatium, survival damages, conspiracy, and aiding and
abetting. Iran, in the form of either the Islamic Republic of Iran or the Islamic Revolutionary
Guard Corps (“IRGC”), has not answered or otherwise appeared in this action and, at Plaintiffs’
request, the clerk of the court has entered a default as to both Defendants. Dkt. 23; Dkt. 39. The
John Doe defendants have not been served, and thus the Court’s decision does not apply to those
defendants

Plaintiffs have moved for a default judgment against the Islamic Republic of Iran and the
IRGC, Dkt. 64, and for the appointment of a special master to conduct damages proceedings,
Dkt. 49. As explained below, the U.S. national plaintiffs have established their right to relief
under 28 U.S.C. § 1605A. Plaintiffs concede, however, that because plaintiff Bashar Al-Taie is
not a U.S. national, he is not entitled to relief under 28 U.S.C. § 1605A(c). The Court concludes,
moreover, that Bashar Al-Taie has failed, at least at this stage of the litigation, to establish that he
is entitled to relief based on his state law claims. Accordingly, Plaintiffs’ motion for the entry of
a default judgment against the Islamic Republic of Iran and the IRGC will be GRANTED as to
the U.S. national plaintiffs and DENIED without prejudice as to Bashar Al-Taie. See 28 U.S.C.
§ 1608(e). Having found that the U.S. national plaintiffs have established Defendants’ liability

to the satisfaction of the Court, the Court will GRANT Plaintiffs’ motion for the appointment of

a special master as to the U.S. national plaintiffs DENY the motion without prejudice as to
Bashar Al-Taie, and APPOINT a special master to hear the damage claims ofthe U.S. national
plaintiffs and to report to the Court regarding the appropriate award.
I. INTRODUCTION

Plaintiffs, the estates of the four U.S. soldiers and twenty-two of their family members,
bring this action for damages against the Islamic Republic of Iran, the Islamic Revolutionary
Guard Corps, and five unidentified “senior Iranian government officials and members of the
IRGC” who, P|aintiffs allege, “planned, supported, and approved the abduction[s] and
murder[s]” of Fritz, Chism, Falter, and Al-Taie. Dkt. 9 at 6-10, 12 (Am. Compl. 1111 1 1-31, 37).
They effected service on the Islamic Republic of Iran and the IRGC in January 2017 and
December 2017, respectively, and neither Defendant has answered, filed a motion under Federal
Rule of Civil Procedure 12, or otherwise appeared. See Dkt. 21; Dkt. 37. Accordingly, at
P|aintiffs’ request, the clerk of the court declared the Islamic Republic of Iran in default on
August 14, 2017, Dkt. 23, and declared the IRGC in default on March 27, 2018, Dkt. 39.

Plaintiffs now seek entry of a default judgment with respect to liability against both
Defendants pursuant to Federal Rule of Civil Procedure 55. Dkt. 64. Even in a garden variety
case,_ the entry of a default judgment is not automatic and requires the exercise of sound
discretion. See Mwanl` v. bin Laa'en, 417 F.3d 1, 6 (D.C. Cir. 2005); Sanchez v. Devashz`sh
Hospitall'ty, LLC, 322 F.R.D. 32, 36 (D.D.C. 2017); Boland v. Yoccabel Const. Co., lnc., 293
F.R.D. 13, 17 (D.D.C. 2013) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).
Most notably, the Court must-at a minimum_satisfy itself that it has subject matter jurisdiction
over the claims and personal jurisdiction over the defendants. See Jerez v. Republic of Cuba,

775 F.3d 419, 422 (D.C. Cir. 2014) (“A defaultjudgment rendered in excess ofa court’s

jurisdiction is void.”); Mwam', 417 F.3d at 6 (explaining that the Court must “satisfy itselfthat it
has personal jurisdiction before entering judgment against an absent defendant”).

In cases brought against a foreign state, however, the Court’s discretion to enter a default
judgment is more narrowly circumscribed By statute, no federal or state court may enter a
defaultjudgment against a foreign state or instrumentality “unless the claimant establishes his
claim or right to reliefby evidence satisfactory to the court.” 28 U.S.C. § 1608(e). This is the
same standard that applies to default judgments against the United States under Federal Rule of
Civil Procedure 55(d). See Owens v. Republic ofSudan, 864 F.3d 751, 785 (D.C. Cir. 2017);
Hill v. Republic oflraq, 328 F.3d 680, 683 (D.C. Cir. 2003). In a case, such as this, alleging,that
a foreign state materially supported acts of terrorism, the district court must determine “how
much and what kinds of evidence the plaintiff must provide.” Han Kim v. Democrall`c People 's
Republic ofKorea, 774 F.3d 1044, 1047 (D.C. Cir. 2014). But the Court must do so in light of
Congress’s purpose in enacting § 1605A_that is, to “compensate the victims ofterrorism [so as
to] punish foreign states who have committed or sponsored such acts and [to] deter them from
doing so in the future,” id. at 1048 (citation omitted)_and the difficulty in obtaining “firsthand
evidence and eyewitness testimony . . . from an absent and likely hostile sovereign,” Owens, 864
F.3d at 785. This means that, to obtain a defaultjudgment against Iran, plaintiffs must (1) carry
their burden of producing evidence sufficient to show that their claims fall within the state-
sponsored terrorism exception to the FSIA, see 28 U.S.C. § 1605A(a); Owens, 864 F.3d at 784;
(2) establish that defendants were served in accordance with the FSIA, see 28 U.S.C. § 1608(a);
and (3) establish their right to relief under federal, see 28 U.S.C. § 1605A(c), or state law,
Owens, 864 F.3d at 809 (“the pass-through approach remains viable”), by offering evidence

“satisfactory to the court,” 28 U.S.C. § 1608(e).

Against this backdrop, the Court held a four-day hearing on liability, Dkt. 51 (Transcript
of Evidentiary Hearing, Apr. 10, 2018); Dkt. 52 (Transcript of Evidentiary Hearing, Apr. l 1,
2018); Dkt. 53 (Transcript of Evidentiary Hearing, Apr. 12, 2018); Dkt. 54 (Transcript of
Evidentiary Hearing, Apr. 13, 2018), and received additional evidentiary submissions, Dkt. 55,
as well as proposed findings of fact and conclusions oflaw from plaintiffs, Dkt. 59-1. ln the
course of the hearing, the Court applied the Federal Rules of Evidence, but did so on the
understanding that, first, it has “the authority-indeed, . . . the obligation_to ‘adjust [evidentiary
requirements] to . . . differing situations,”’ Han Kim, 774 F.3d at 1048 (quoting Buna'y v.
Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)) (modifications in Han Kim), and, second, that the
Court need not “step into the shoes of the defaulting party and pursue every possible evidentiary
challenge,” Owens, 864 F.3d at 785. Recognizing that expert testimony is not only entirely
proper, but often sufficient, id. at 788, and even indispensable in “terrorism cases . . . because
firsthand evidence ofterrorist activities is difficult, if not impossible to obtain,” id. at 787, the
Court also considered the extensive expert testimony the Plaintiffs presented. Whether through
expert testimony or other competent evidence, the Court must ultimately determine whether the
Plaintiffs have “substantiate[d] [the] essential element[s] ofjurisdiction” with admissible
evidence. Id. at 786.

The Court now makes the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

Plaintiffs’ evidentiary presentation included testimony from thirteen witnesses (including
experts) and dozens of exhibits (including several government reports). Along with other
witnesses, the Court heard from Colonel William Rabena (ret.), the U.S. Army officer appointed

to investigate the 2007 Karbala attack; General George Casey (ret.), the Commander of the

Multi-National Forces in Iraq at the time of the Karbala attack and of the abduction of Staff
Sergeant Al-Taie; Dr. Matthew Levitt, an expert on Hezbollah and Iran’s support for terrorist
proxies, including AAH; Dr. Daveed Gartenstein-Ross, an expert on AAH and Iranian support

for terrorism in Iraq; Dr. Craig Mallak, a forensic pathologist who previously served as the U.S.

Arde For<>es Medical E><aminer; _
_; ' and representatives from each of the four families of

the murdered servicemembers.

Based on the testimony of these witnesses, and almost one hundred trial exhibits, the
Court finds as follows: First, Iran provided AAH with significant support_in the form of
training, supplies, intelligence, and funding_as part of its larger strategy to destabilize Iraq and
drive the United States from the Middle East using Iraqi Shia militias as proxies Second, AAH

carried out the Karbala attack, took Fritz, Chism, and Falter hostage, and brutally beat and

 

1 The Court has redacted references to one witness from the public version of this Memorandum
Opinion in order to protect the privacy and safety of that individual. While “[t]he right of public
access is a fundamental element of the rule of law, important to maintaining the integrity and
legitimacy of an independent judiciary,” Metll`fe, Inc. v. Fin. Stabz`lily Oversl`ght Council, 865
F.3d 661, 663 (D.C. Cir. 2017), the presumption of public disclosure ofjudicial proceedings may
give way under certain conditions As the D.C. Circuit explained in United States v. Hubbard,
650 F.2d 293 (D.C. Cir. 1980), courts must weigh:

(1) the need for public access to the documents at issue; (2) the extent of previous
public access to the documents; (3) the fact that someone has objected to disclosure,
and the identity of that person; (4) the strength of any property and privacy interests
asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the
purposes for which the documents were introduced during thejudicial proceedings

E.E.O.C. v. Nat'l Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (citing Hubbard, 650
F.2d at 317-22). Here, after considering the Hubbard factors_and, in particular, the limited
nature of the redactions and the witness’s substantial privacy interests_the Court determined
that the redactions were appropriate

murdered them. Third, AAH held Al-Taie hostage, brutally beat and murdered him. Finally,
AAH could not have committed any of these acts without Iran’s support.
A. Iran’s Provision of Support to Asaib Ahl al-Haq

1. Overvl`ew of Iran ’s Proxy Strategy

Shortly after the Iranian Revolution in 1979, the Islamic Republic of Iran initiated a
campaign to export the principles of the Iranian Revolution to areas with large communities of
Shia Muslims by, among other things, using local groups as proxies.2 Dkt. 52 at 192 (Levitt).
The Islamic Revolutionary Guard Corps-or IRGC_played a critical role in this effort. Ia’. at
194 (Levitt). The IRGC is a military institution that operates separately from the ordinary
Iranian military; instead of defending Iran’s borders, the IRGC is “charged with preserving the
ideals ofthe Islamic Republic,” both in Iran and elsewhere. Ex. 66 at 25; see Dkt. 52 at 193-94
(Levitt).

A “special branch” of the IRGC known as the Quds Force is “tasked with extending” the
IRGC’s “mission beyond Iran’s borders.” Ex. 66 at 25; Dkt. 52 at 194 (Levitt). The commander
of the Quds Force, General Qasem Soleimani, reports directly to Iran’s Supreme Leader, Ali

Khomeini. Ex. 66 at 25. Among other responsibilities, the Quds Force is charged with

 

2 Many of the Court’s findings in this section are derived from the testimony and expert reports
of Dr. Matthew Levitt and Dr. Daveed Gartenstein-Ross. Having considered the requirements of
Federal Rule of Evidence 702, the Court qualified Dr. Levitt as an expert on (l) Iran’s
relationship with Hezbollah and, in particular, Hezbollah terrorists in Iraq after 2003; and (2)
Iran’s relationship with and support for Iraqi Shia militias and, in particular, AAH after 2003,
Hrg. Tr. (Apr. 11, 2018) at 190-91 (Levitt), and qualified Dr. Gartenstein-Ross as an expert on
(1) violent non-state actors, including identifying and analyzing online content generated by
violent non-state actors; (2) Iran’s use of proxy organizations in Iraq from the 199OS to 2012; and
(3) Iraqi Shia militias in general and AAH in particular. See Hrg. Tr. (Apr. 12, 2018) at 39
(Gartenstein-Ross). The Court also admitted Dr. Levitt’s expert report, Ex. 65, and Dr.
Gartenstein-Ross’s expert report, Ex. 66, into evidence. See Hrg. Tr. (Apr. 12, 2018) at 7
(Levitt); id. at 40 (Gartenstein-Ross).

“cultivating and supporting pro-Iran proxies” in foreign countries and coordinating with these
militant groups to conduct terrorist attacks ld.; see also Dkt. 52 at 194 (Levitt). According to
the U.S. Department of the Treasury, the Quds Force has supported militant groups including the
Taliban, Hamas, and_most relevant here_the Lebanese Hezbollah (“l-lezbollah”) and Iraqi
Shia militant groups Ex. 67 at 2. By using these groups as proxies, Iran has sought to achieve
its goals in other regions while simultaneously denying responsibility for the actions ofits

proxies. Ex. 65 at 19; Ex. 66 at 22, 26; Ex. 15 at 4.3 The State Department has designated Iran

 

3 Exhibits 3, 4, 5, 10, 12, 15, 16, 67, and 87(b)-(f) are “official U.S. Government reports,
records, and statements.” Dkt. 43 at 1 (O’Leary Decl. 11 l); Dkt. 55 at l. Under the public
records exception to the hearsay rule, Fed. R. Evid. 803(8), “a record or statement of a public
office” is admissible ifit contains “factua| findings . . . from a legally authorized investigation.”
See Owens v. Republic ofSudan, 864 F.3d 751, 792 (D.C. Cir. 2017). Those requirements are
satisfied here:

Exhibits 3, 4, 5, and 87(b)-(f) were released to P|aintiffs by the U.S. Army’s Litigation Division
pursuant to the legal process outlined in, inter alia, Army Regulation 15-6. Dkt. 43 at 2
(O’Leary Decl. 11 3); Dkt. 55 at 1; see also, e.g., Ex. 4 at 1. Exhibit 4 is a U.S. Army
lnvestigating Officer’s Report about the Karbala Attack, and Exhibit 5 is a U.S. Army Criminal
Investigation Command Report on the abduction and murder of` Al-Taie. Dkt. 43 at 2 (O’Leary
Decl. 1111 5~6). Exhibit 3 is a U.S. Department of Defense Report concerning the detention of the
Khazali brothers and Daqduq and Exhibits 87(b)-(f) are Tactical lnterrogation Reports that
reflect statements that Qais Khazali made to U.S. government interrogators Dkt. 43 at 2
(O’Leary Decl. 11 4); Dkt. 55 at 2-3. Although Exhibits 3 and 87(b)-(f) contain nested hearsay,
the Court admitted these reports under the exception to the rule against hearsay for statements
against interest. Under that exception, courts may admit statements (l) that “a reasonable person
in the declarant’s position would have made only ifthe person believed it to be true because,
when made, it was . . . contrary to the declarant’s . . . interest,” Fed. R. Evid. 804(b)(3), and (2)
that were made by a declarant who is “absent from the trial” and whose “attendance or
testimony” cannot be procured “by process or other reasonable means,” Fed. R. Evid. 804(a)(5).

Exhibits 10, 12, 15, 16, and 67 were released to Plaintiffs and certified as public records by the
U.S. Department ofDefense. Dkt. 43 at 5 (O’Leary Decl. 11 13). Exhibit 10 is the U.S. State
Department’s 2007 Country Report on Terrorism; Exhibit 12 is the Congressional Report “Iraq:
The Crocker-Petraeus Report”; Exhibit 15 is the transcript of General David Petraeus’ Report to
Congress on the Situation in Iraq; Exhibit 16 is the U.S. Department ofthe Treasury’s Public
Announcement of Terrorism Designation; and Exhibit 67 is the U.S. Department of the
Treasury’s Public Announcement designating Iranian entities and individuals that support
terrorism. Id. at 5_9 (O’Leary Decl. 1111 13_14, 16, 19_20, 26).

as a state sponsor of terrorism, see U.S. Dep’t of State, State Sponsors of T errorism (last visited
August 2, 2018),4 and the Treasury Department has designated the lRGC’s Quds Force as an
entity providing support for terrorism, Ex. 67 at 2.

In order to fully understand AAH’s role in the Karbala attacks, it is necessary to
understand Iran’s prior conduct in supporting proxy organizations and the role those
organizations played in AAH’s development. Accordingly, the Court will outline how Iran
turned Hezbollah into an Iranian proxy before describing the similar approach that Iran took with
Iraqi Shia militias, including AAH.

2. Hezbollah

Hezbollah’s development into an Iranian proxy in Lebanon is relevant to this case in two
respects First, it serves as an example of how Iran cultivates militant organizations in other
countries and employs them as surrogates_a model that Iran then applied to Iraqi Shia militias.
See Dkt. 52 at 216 (Levitt). Second, Hezbollah served as a liaison between Iran and AAH and
helped Iran establish a proxy relationship with AAH. See infra Part II.A.3.b. Iran’s relationship
with Hezbollah, accordingly, is part of the story of AAH’s emergence as an Iranian proxy.

Hezbollah was founded in the early 1980s as a loose network of Shia militias that sought
to transform Lebanon into an Islamic republic. Ex. 65 at 6~8. Iran played a central role in
Hezbollah’s development and growth. Ia'. at 8. Notably, shortly after lsrael invaded Lebanon in
1982, “approximately 1,500 [IRGC] advisors set up a base in [Lebanon] with the goal of
exporting the Islamic revolution to the Arab world,” and, according to Naim Qassem,
Hezbollah’s deputy Secretary General, the organization’s “members were required to attend

these camps and learn how to confront the enemy.” [d. By 1985, Hezbollah’s “ideological

 

4 Available at https://www.state.gov/j/ct/list/c14151.htm.

platform” identified “the Iranian regime as the vanguard and new nucleus ofthe leading Islamic
State in the world” and declared: “We abide by the orders of one single wise and just leadership,
represented by ‘Waliyat el Faqih’ [rule ofjurisprudent] and personified by Khomeini.” Id.
(alteration in original). In the expert opinion of Dr. Levitt, “l~lezbollah has been Iran’s proxy
ever since, and it is estimated that,” today, “lran provides Hezbollah with as much as $700
million-$l billion per year” id., in the form of cash, training, intelligence, and weapons, see Dkt.
52 at 204 (Levitt).5

Hezbollah envisions itself as “the sharp end of the spear[,] going where Iran tells it to go
in defense of. . . . Shia [l\/luslims] around the world.” Dkt. 52 at 202 (Levitt). Ofparticular
relevance here, Hezbollah has committed numerous terrorist attacks on Americans at the behest
of Iran. Id. at 208-09. As Dr. Levitt explained at trial:

Starting in the early 19805, even before Hezbollah officially announced itself in

1985, Hezbollah at Iran’s behest carried out attacks on the U.S. Embassy in 1983

in Beirut; the U.S. Marine barracks and French and Italian forces later in 1983[;]

[a]nd then the U.S. Embassy annex in Beirut in 1984. . . .

Later, at Iran’s behest, Lebanese Hezbollah together with lraqi Shia militants . . .

carried out a series of attacks targeting U.S. and other western interests, including

the U.S. Embassy, in Kuwait in 1983, ’84[,] and ’85. . . .

In 1992, Iran and Hezbollah partnered in a very, very detailed, intricate way[,] using

Iranian diplomats[,] . . . diplomatic institutions[,] . . . ministries[,] and front

companies and Hezbollah operatives to blow up the Israeli embassy in Buenos

Aires in 1994. And just a few weeks before that, they nearly blew up the Israeli
embassy in Bangkok, Thailand.

 

5 To the extent these dollar figures “recite potentially inadmissible facts,” Dr. Levitt’s expert
opinion that Hezbollah has been “lran’s proxy” for the last two-and-half decades is certainly
admissible, and the dollar figures appropriately “disclose” a portion of“the factual basis for” that
opinion. Owens, 864 F.3d at 790. The same is true with respect to various other “potentially
inadmissible facts” referenced in Plaintiffs’ expert reports Ia'.

10

Id. at 208-10. lran and Hezbollah thus have a “deep relationship that involves notjust shared
interests but [a] shared ideology and shared goals.” Id, at 202. Hezbollah “sees itself as an
important and capable tool available to Iran to not only export the revolution, but to do what Iran
asks of it because,” as a matter of the organization’s core ideology, “the [S]upreme [L]eader of
Iran is the leader ofthe Shia on planet earth.” Ia'.

Consistent with numerous other decisions from this Court, the Court, accordingly, finds
that Hezbollah is an Iranian proxy. See Friends of Mayanol Inst., Inc. v. Islamic Republic of
Iran, No. 16-1436, 2018 WL 2023498, at *2 (D.D.C. May 1, 2018); Peterson v. Islamic Republic
oflran, 264 F. Supp. 2d 46, 53 (D.D.C. 2003); Stern v. Islamic Republic oflran, 271 F. Supp. 2d
286, 292 (D.D.C. 2003).

3. Asaib Ahl al-Haq

a. w

Following the U.S. invasion of Iraq in 2003, Iran pursued “a Lebanonization strategy” in
Iraq to “co-opt elements of the local Shia community and use them as . . . instruments of Iranian
force.” Ex. 65 at 18~19 (quoting Ryan Crocker, the U.S. Ambassador to Iraq in 2008 and former
U.S. Ambassador to Lebanon); see also Ex. l at 3_4 (press briefing by Brigadier General Kevin

Bergner, the spokesperson for coalition forces in Iraq, on July 2, 2007).6 Iran had several goals

 

6 Under the public records exception to the hearsay rule, “a record or statement of a public
office” is admissible ifit contains “factual findings .' . . from a legally authorized investigation”
and does not “indicate a lack oftrustworthiness.” Fed. R. Evid. 803(8); see also Owens v.
Republic ofSudan, 864 F.3d 751, 792 (D.C. Cir. 2017). This press briefing, entitled “Security
Operations in Iraq,” describes “coalition and Iraqi operations against the[] special groups, their
support from Iranian Q[u]ds Force operatives, and the involvement of other extremist
organizations,” Ex. 1 at 1, and includes the conclusions drawn by coalition forces after
investigating the Karbala attack and interrogating several high level AAH operatives “Pursuant
to the ‘broad approach to admissibility’ under Rule 803(8), a court may also admit ‘conclusion[s]
or opinion[s]’ contained within a public record” and “[o]nce proffered, a public record is
presumptively admissible, and the opponent bears the burden of showing it is unreliable.”

ll

Most significantly, it sought to transform lraq into a “weakened, decentralized, and Shi[]a-
dominated” state that would be “incapable ofposing a threat to Iran.” Ex. 65 at 18 (quoting
Lowell Jacoby, the director ofthe Defense Intelligence Agency in 2005). In addition, Iran
sought “to push the United States out ofthe Gulfregion,” including out of lraq. Ia'. “Ifthe
United States were humiliated in Iraq and forced out of the region in disgrace, the thinking went,
the Americans would be deterred from pursuing similar military interventions in the [Gulf]
region in the future.” Ia'.; see also Ex. 66 at 22-23. But, while seeking “to bloody coalition
forces in lraq,” Iran was “[c]areful not to provoke a direct confrontation with U.S. and coalition
forces” and thus “trained[] and funded a variety of [Shia] militias and insurgent groups in an
effort to bog down coalition forces in an asymmetric war of attrition.” Ex. 65 at 18.

One Iraqi Shia group, Jaysh al-l\/lahdi (“JAl\/l”), was an early beneficiary of Iranian
support. Ex. 66 at 11. Formed by Muqtada al-Sadr in 2003, JAl\/l served as the military wing of
the Sadrist movement. Id. at 16. By 2004, JAM began to fracture, and a number of “splinter
groups”_“a somewhat amorphous conglomeration of Iranian-backed Shia militias” known as
the Special Groups-emerged. Ia’. at 1 1. These Special Groups functioned independently from
JAM. Ia'. at l7; see Ex. 87b at 4 (interrogation report for Qais Khazali) (“[I]t was . . . decided
that the Special Groups were necessary, but must be kept separate from [Muqtada al-Sadr], and

the legitimate JAM.”); Ex. l at 8 (explaining that the Special Groups “may have . . . been

 

Owens, 864 F.3d at 792 (citing Beech Al'rcraft Corp. v. Ral`ney, 488 U.S. 153, 169 (1988)). As
the press statement contains the results of a lawful investigation undertaken by the U.S. military
and bears no indicia of unreliability, the Court accordingly admits it into evidence under Fed. R.

Evid. 803(8).

12

affiliated with [JAl\/I] at one point” but that they had “broken away from [JAl\/l]” and were
“operating outside [al-Sadr’s] control”). Like JAM, they were “funded, trained and armed by”
IRGC “Q[u]ds Force operatives.” Ex. 1 at l. The Special Groups “plan[ned] and

execut[ed] . . . bombings, kidnappings, extortion, sectarian murders, illegal arms trafficking[,]
and other attacks” against Iraqi civilians, Iraqi forces, and coalition forces Ia'. at 2. Many of the
Special Groups eventually came to recognize the authority of Qais Khazali, a former leader of
the Sadrist movement and an ally-turned-rival of Muqtada al-Sadr. Ex. 66 at l7-18; see Dkt. 52
at 18~19 (Casey). Under Qais Khazali’s leadership, these groups became known as Asaib Ahl
al-Haq, or “AAH.” Ex. 66 at 11.

Iran played a central role in Qais Khazali’s ascent and AAH’s formation. The Supreme
Leader of lran, Ali Khomeini, “met with [Qais Khazali in Iran] and recruited him to lead
[AAH],” which was to “operate without the knowledge or authorization of [Muqtada al-Sadr].”
Ex. 3 at 4 (declassified Department of Defense memorandum); see also Ex. 66 at 20 (relying on
same). Iran viewed Qais Khazali’s AAH as a complement to Muqtada al-Sadr’s JAM, Ex. 66 at
25, and thus “leapt at the opportunity to diversify its investment in lraqi militant groups,” ia'. at
35. Iran began to support AAH, along with JAM, in 2004. ld. at 25. By June 2006, Qais
Khazali “was in charge of [S]pecial [G]roups throughout lraq.” Ex. l at 3; see Ex. 87b at 4
(March 2007 report stating that “[Qais Khazali] has been the sole authorizing authority for
operations performed by the ‘Special Groups’ in Iraq for the past nine months.”). As the
“primary leader” ofthe Special Groups, Qais Khazali “had significant links to Iran.” Ex. 3 at 4.
He was familiar with “lranian surrogate networks operating in lraq” and their leadership

structures and with “the facilitation and movement of personnel and equipment across the Iran-

13

Iraq border.” Ia'. at 2. l~le also met with Quds Force officers “on multiple occasions.” Ia'. Qais
Khazali’s brother, Laith Khazali, “effectively” served as “his deputy.” Dkt. 52 at 222 (Levitt).
b. Iran’s Provision ofFunding, Weapons and Training

lran, through the Quds Force, sought “[to] turn . . . Shia militia extremists into a
Hezbollah-like force to serve its interests and fight a proxy war against the Iraqi state and
coalition forces in lraq.” Ex. 12 at 19 (2007 statement of General David Petraeus, Commander
of Multi-National Force_lraq); see also Ex. 2 at 8 (slides accompanying Brigadier General Kevin
Bergner’s July 2, 2007 press briefing); Ex. 66 at 33. This effort to use proxies in Iraq was part of
a “deliberate policy to inflict casualties on U.S. forces” that was “approved by the [S]upreme
[L]eader” of Iran and was “executed very covertly . . . by the Q[u]ds [F]orce.” Dkt. 52 at 14
(Casey). Iranian support_in the form of funding, weapons, and training_was critical to the
success of the Special Groups, which otherwise “would [have been] unable to conduct their
terrorist attacks in Iraq.” Ex. 1 at 3; see also Ex. 14 at 8 (press conference given by General
David Petraeus, Commander, Multinational Force_Iraq, and Ryan Crocker, U.S. Ambassador to
Iraq on September 12, 2007). With respect to AAH in particular, the Court credits Dr.
Gartenstein-Ross’s expert opinion that “Iran provided significant material support to AAH
throughout [the relevant period which] made it much more capable of carrying out” attacks on
U.S. service-members, and which “bolstered its overall prominence within the [Shia]
insurgency.” Dkt. 53 at 41 (Gartenstein-Ross). As Dr. Gartenstein-Ross further explained, Qais
Khazali “had independent support from Iran” and, “by around 2006, . . . AAH was clearly the
most powerful ofwhat was called the Special Groups.” la'. at 55.

The Special Groups were “funded, trained, armed, and directed by Iran’s Q[u]ds Force,

with help from Lebanese Hezbollah.” Ex. 15 at 4 (General David Petraeus, Commander, Multi-

14

National Force-lraq, Report to Congress on the Situation in Iraq, Apr. 8-9, 2008). The U.S.
Department of Defense estimated that, in addition to training, the Quds Force supplied the
Special Groups with arms and funding valued at between $750,000 and $3 million a month. Ex.
1 at 3; see also Dkt. 52 at 226 (Levitt) (same); Ex. 87c at 3 (“[T]he funding for the Special
Groups comes from . . . the [IRGC].”). In the words of Dr. Levitt, although far less than the
funding Iran provided to Hezbollah, the funds provided to AAH were devoted “to carry[ing] out
operations,” and “three-quarter[s] ofa million dollars to $3,000,000 a month . . . can buy a lot of
damage.” Dkt. 52 at 226 (Levitt).

The Quds Force, in particular, provided “Iraqi militants with Iranian-produced advanced
rockets, sniper rifles, automatic weapons, [and] mortars[,] [which] have killed thousands of
[c]oalition and Iraqi [f]orces,” as well as “explosively formed projectiles (EFPs) that have a
higher lethality rate than other types of improvised explosive devices (IEDs) . . . and are
specially designed to defeat armored vehicles used by [c]oalition [f]orces.” Ex. 10 at 2 (U.S.
State Department’s 2007 Country Report on Terrorism); see also Ex. 14 at 8 (General Petraeus,
Commander of Multinational Force-lraq, explaining that it was “very, very clear” that Iran had
provided Shia militias with EFPs and rockets); Dkt. 52 at 16 (Casey) (describing evidence that
Iran supplied Iraqi militias with EFPs). Iran smuggled the weapons into Iraq using supply routes
called “ratlines,” Dkt. 53 at 139-40 (Gartenstein-Ross), primarily for use by AAH, Dkt. 52 at
213 (Levitt); see also ia'. at 24 (Casey) (describing the locations of “supply network lines”). On
the Iraqi side, both Qais and Laith Khazali were involved in smuggling arms and artillery from
Iran into Iraq. Ex. 3 at 5. Laith Khazali, for example, “was instrumental in acquiring surface-to-

air missiles (SAl\/Is), RPGs, bazookas and stella missiles for [S]pecial [G]roups.” Ia'. at 4.

15

In addition to providing financial support and weapons, Iran (directly and indirectly)
provided training for Iraqi militants affiliated with AAH. At the behest of Iran, Hezbollah
created a unit “whose sole purpose was to train lraqi Shia militants,” including AAH, to carry out
attacks in Iraq directed at U.S. troops and others Dkt. 52 at 217, 223 (Levitt); see also Ex. 16 at
1. Ofparticular relevance here, in 2005 or 2006, Hezbollah ordered Ali Musa Daqduq, a senior
Hezbollah commander, to work with the Quds Force to “provide training and equipment” to the
Special Groups, Dkt. 52 at 223 (Levitt); see also Ex. l at 2, and to “organize the [S]pecial
[G]roups in ways that mirrored how Hezbollah was organized in Lebanon,” Ex. 1 at 3. Daqduq,
accordingly, traveled to Iraq, “met with the commander and the deputy commander of the . . .
Q[u]ds Force special external operations,” and “was directed by [the] Q[u]ds Force to make trips
in and out of Iraq and [to] report on the training and operations of the lraqi [S]pecial [G]roups.”
Ia'. at 2. Daqduq ultimately made four such trips to “monitor[] and report[] on the training and
arming of [S]pecial [G]roups in mortars and rockets, manufacturing and employment of [IEDs],
and kidnapping operations.” Ia'.

With Hezbollah’s assistance, lran provided “training at every level of the militant
organizations that received assistance, from foot soldier to leadership.” Ex. 66 at 27; see also
Ex. 12 at 25 (2007 statement of General David Petraeus, Commander of Multi-National Force_
lraq) (discussing the Hezbollah unit “created to support the training, arming, funding, and, in
some cases, direction of the militia extremists by the Iranian Republican Guard Corps’ Quds
Force”). The leaders of Shia militias, for example, received “administrative, logistics, financial,
religious[,] and small unit tactics leadership training.” Ex. 3 at 10 (interrogation report of
Daqduq). AAH members were also given training in engineering, artillery, intelligence, infantry,

and kidnapping Ex. 26 at 5-6. Much ofthe training occurred at camps in Iran. See Ex. 10 at 2;

16

Ex. 66 at 27; Dkt. 52 at 14 (Casey) (“[W]e had significant evidence through signals intelligence
and human intelligence that Iran was operating training bases for lraqi militia[s] in lran.”). The
Quds Force would train “approximately 20 to 60 lraqis at a time” in Iran and then send them
back to Iraq. Ex. l at 3; see Ex. 26 at 5. These individuals, in turn, “passed on this training to
additional militants inside lraq,” as part of“a ‘train-the-trainer’ program.” Ex. 10 at 2. The
Quds Force and Hezbollah also provided training inside Iraq. Ia'.

Hezbollah played a critical role in Iran’s efforts to train Iraqi Shia militants The
Hezbollah trainers (like their Iraq trainees) spoke Arabic (unlike their Quds Force liaisons who
spoke Farsi). Ex. 65 at 24. Some lraqi militants, moreover, perceived a “lack of respect” on the
part of Iranians. Ex. 66 at 26. Hezbollah trainers thus helped overcome the language barrier and
bridge the “cultural divide between Persian Iran and Arab lraq.” [a'.; see Ex. 26 at 7 (“The [Quds
Force] needed [Hezbollah’s] help . . . because lranians are not accepted in Iraq whereas the
Lebanese would be.”).

These training programs played a significant role in the success of AAH and other
Special Groups Without that Iranian-backed training, the Special Groups would have been
“nowhere” near as effective as they were. Dkt. 52 at 18 (Casey).

B. The January 20, 2017 Attack in Karbala

The assistance that Iran provided to AAH included help in planning and executing an
assault on the Provincial Joint Coordination Center (“PJCC”) in Karbala, Iraq. In the course of
that assault, Fritz, Chism, and Falter were abducted, and they were later brutally beaten and

murdered by the assault team. AAH could not have carried out those acts of terrorism without

Iran’s support.

17

l . T he Assault on the Karbala Provincial Joint Coora'ination Center
a. Backyround

A U.S.-led coalition invaded Iraq in 2003. From July 2004 to February 2007, General
George Casey served as the Commander of the Multi-National Force in Iraq. See Dkt. 52 at 7-8
(Casey). By the time General Casey arrived, the mission had evolved, and, with his input, the
Multi-National Force directed its efforts to helping lraq build a representative government “with
security forces that [could] maintain domestic order and keep the terrorists out.” Ia’. at 8. “[A]s
the lraqi security forces grew over time,” a need emerged “to coordinate the security actions
between” the Multi-National Force, “the Iraqi military[,] and the Iraqi police forces at the
provincial level.” la’. at 9. The Multi-National Force, accordingly, put a program “in place in
2006” that “would transfer security control of the province” to lraqi military and police forces
“when the lraqis were ready.” Ia'. To do so, a provincial governor would need to demonstrate an
ability to coordinate the actions of the Iraqi military, Iraqi police, and coalition forces Ia'. In
each province, this coordinating activity was run out of Iraqi government facilities known as
Provincial Joint Coordination Centers or “PJCCs” Ia'.; see Dkt. 51 at 56-57 (Rabena). In
addition to serving as a base for transition efforts, these compounds also operated as the offices
for local government. Dkt. 54 at 106 (Alkire). The PJCCs hosted meetings between local
elected officials or religious leaders and the Iraqi police, Iraqi security forces, and coalition
forces Ial.

The PJCC in Karbala, Iraq consisted of a main building attached to the lraqi governor’s
building. Ex. 23. The main building faced an outdoor courtyard and,' beyond the courtyard, a
parking lot. Ia'. U.S. soldiers assisting the provincial government during the transition lived at

the PJCC. Ex. 4 at 9. Their barracks were located to the side of the courtyard and the main

18

building. Ex. 23. These U.S. soldiers “often lived at the compound for up to a week at a time,”
Ex. 4 at 9, and, when there, worked “side by side, shoulder by shoulder” with lraqi police and
security forces to facilitate the transition, Dkt. 51 at 57 (Rabena). On average, thirty-seven to
forty U.S. troops were positioned at the Karbala PJCC at any given time. Id. (Rabena). Because
the PJCC was an Iraqi government facility, Iraqi police bore principal responsibility for the
security. Ia'. at 58 (Rabena). Iraqi police staffed gates_or security checkpoints_at various
locations in and around the facility. Id. at 65, 69-71 (Rabena); Ex. 23. American forces assisted
with security, Dkt. 54 at 106_07 (Alkire), and, among other things, operated Humvees positioned
around the main building, including in the courtyard and in the parking lot, see Ex. 23.

On January 20, 2007, the U.S. forces at the Karbala PJCC included the 1St Platoon, A
Battery, 2d Battalion, 377th Parachute Field Artillery Regiment. Ex. 4 at 9. At that time, the
platoon’s mission was to help the provincial government plan security for an upcoming religious
event that was expected to draw more than ten million pilgrims. Ial. The lSt Platoon was led by
First Lieutenant Jacob Fritz and included, among others, Specialist Johnathan Bryan Chism and
Private First Class Shawn Falter. Ia’. at 7. As platoon leader, Fritz was responsible for
interacting with elected and religious officials who “would come to the PJCC to speak with the
governing body of the PJCC.” Dkt. 54 at 106 (Alkire). He lived and worked out ofa small,
courtyard-facing room at the front of the main building along with Captain Brian Freeman.7 Dkt.
51 at 66, 75 (Rabena); Dkt. 52 at 68 (Rabena); Ex. 23. Chism and Falter, meanwhile, worked
rotating guard shifts helping the Iraqi police secure the PJCC. Dkt. 51 at 69, 74 (Rabena); Ex.

23; Dkt. 54 at 107 (Aikire).

 

7 Captain Freeman is not a plaintiffin this case, so the Court will only discuss the events
involving him to the extent they relate to the claims of Fritz, Chism, and Falter.

19

b. The Attack

The Karbala attack was carried out by a team of AAH militants In brief, a small assault
force bypassed the security checkpoints, infiltrated the PJCC, and captured Fritz, Chism, Falter,
and Freeman. The four soldiers were abducted, handcuffed, and driven away from the PJCC by
a team of the militants. Other militants aided in the abduction by securing the PJCC checkpoints,
subduing the Iraqi police, and firing on the PJCC building to create the false impression that the
compound was under a small arms attack, thereby diverting attention from the abduction. Dkt.
52 at 41 (Rabena). When the abduction team was unable to clear a security checkpoint about
twenty-five miles east of Karbala, the militants murdered their hostages Ex. 4 at 8; Dkt. 52 at
80~96 (Rabena). From start to finish, the assault on the PJCC took no more than fifteen minutes
Ex. 4 at 1 1-13; Dkt. 52 at 63 (Rabena). It was “well-coordinated and synchronized,” Ex. 4 at 1 l,
exceedingly “complex,” ial at 20, and_of particular importance to this case_“well beyond the”
range of“local insurgent or militia capabilities,” ia'. at 11.

The assault on the PJCC began around 6 p.m. on January 20, 2007. Ex. 4 at 10.
Approximately seven vehicles approached from the south, driving up to the first of two gated
checkpoints Dkt. 51 at 59-60 (Rabena); Ex. 4 at 7; see Ex. 23. They gave “the impression
[that] they were . . . a convoy that was coming from the [U.S.] embassy.” Dkt. 51 at 60
(Rabena). The attackers had outfitted themselves and their vehicles (predominantly black
Chevrolet Suburban SUVs) to appear as though they were American soldiers or security
contractors: the SUVs were rigged with false antennae on their front bumpers and carried
placards directing others to stay back a hundred meters, and the attackers spoke English, wore

U.S. Army Combat Uniforms, and had helmets and weapons resembling those of U.S. soldiers

20

Ex. 4 at 7; Dkt. 51 at 60-61, 79-80 (Rabena). Most ofthe vehicles then continued on to a
second security gate, located due north ofthe first checkpoint Ex. 4 at 1 1; Ex. 23.

At both gates, the attackers pretended that they were Americans, and then “bullied their
way past” the checkpoints by demanding_in English-that the Iraqi police turn over their
weapons Dkt. 51 at 61 (Rabena); Ex. 4 at 10-11. One vehicle stayed behind at each gate. Dkt.
51 at 78 (Rabena). The passengers got out, one militant held the Iraqi police at gunpoint at each
checkpoint, and the remaining occupants fanned out to take positions from which they could fire
on the PJCC building once the assault began. Dkt. 51 at 62, 78_79 (Rabena); Dkt. 52 at 41, 45
(Rabena); Ex. 4 at 11. A third vehicle positioned itself between the two checkpoints Ex. 4 at
1 1; Dkt. 51 at 78 (Rabena). The remaining SUVs continued north toward the PJCC’s main
building and entered the parking lot. Dkt. 51 at 79, 83 (Rabena); Ex. 4 at 11. An unknown
number of militants disembarked and immediately subdued the Iraqi police stationed around the
gated entrance to the courtyard. Dkt. 52 at 41 (Rabena); Ex. 4 at Tab M.

Five of the militants then crossed through the gated entrance into the courtyard and
approached the front door ofthe PJCC main building. Ex. 4 at 11. At this time, Freeman and
Fritz were in their room at the front ofthe building, see id. at 10, while Chism and Falter
occupied an armored Humvee in the courtyard next to the building’s entrance, ia'. at 11; see Ex.
23 (showing the position of American forces during the attack); see also Dkt. 51 at 73_74
(Rabena). Chism manned the machine gun mounted on top of the turret; Falter was in the
driver’s seat. Dkt. 51 at 73 (Rabena); Dkt. 52 at 47-48 (Rabena). The five insurgents, who wore
the uniforms of American troops and spoke English, greeted Chism and Falter and walked
toward the PJCC as though they were arriving for a meeting. Ex. 4 at 11; Dkt. 52 at 47-48

(Rabena). Falter exited the Humvee and started to approach the SUVs, presumably to determine

21

the reason for their arrival. Ia'. About five seconds later, three more militants entered the
courtyard, greeted Chism and Falter, and followed the initial group of five to the front entrance
ofthe PJCC. Ex. 4 at 11; Dkt. 52 at 48-49 (Rabena). Like the others, these militants were
dressed in American uniforms and greeted Chism and Falter in English. Dkt. 52 at 49 (Rabena).

Each of the last three insurgents to enter the courtyard had specific tactical roles, and they
executed their assignments more or less simultaneously. The last of the three walked past Falter,
turned around, and shot him in the neck from behind. Ia'. (Rabena); Ex. 4 at 1 1. The second
climbed on the back ofthe Humvee and shot Chism, who was facing the courtyard gate and “had
no chance to react.” Ex. 4 at 1 l; see also Dkt. 52 at 50 (Rabena). Despite the seriousness of
their injuries, neither Chism nor Falter was killed by these gunshots. Dkt. 52 at 49-51 (Rabena).
The third insurgent made his way to the front entrance of the main building and subdued the two
Iraqi police officers there and took their weapons Id. at 51 (Rabena); Ex. 4 at 1 1.

Seconds after the sound of gunfire in the courtyard, “a well-coordinated and
synchronized attack occurred in the building, in the back, and against the barracks area.” Ex. 4
at l l. The militants who were staged outside the building began to fire at the building, which
had the effect of diverting the U.S. military personnel in the barracks areas and on the second
floor of the PJCC to the roof of the building, where they responded to what they believed to be a
small arms assault on the complex. Dkt. 52 at 51-55 (Rabena). At the same time, other militants
launched an attack on the PJCC command and control room, which was located next to the room
where Fritz and Freeman were working. Ia'. at 53 (Rabena); Ex. 4 at 12. According to Colonel
William Rabena, the` U.S. Army Officer appointed to investigate the attack, this focus of the
attack was consistent with a plan to abduct Fritz and Freeman; the attackers “knew that” the

occupants of the command and control room posed the most substantial threat to their mission,

22

and they therefore confronted that threat before turning their attention to the abduction of Fritz
and Freeman. Dkt. 52 at 53 (Rabena); Ex. 4 at 12.

The command and control room held five U.S. soldiers_the only soldiers other than
Fritz and Freeman located on the first floor of the main PJCC building_as well as radios for
communicating between the PJCC and coalition forces Dkt. 51 at 75 (Rabena); Ex. 23. By
attacking that room, the militants were able to aid their exfiltration by delaying communications
regarding the attack, and they were able to subdue “the closest support that could interfere with
the abduction.” Dkt. 52 at 54 (Rabena). The fact that the attackers “knew exactly where they
were going” evidences that they had inside information and that the attack was a highly
sophisticated one. Id. at 55 (Rabena); see also Ex. 4 at 12. The U.S. soldiers working in the
command and control room were able to prevent the attackers from fully opening the door, but
the militants were able to direct gunfire and a grenade into the room. Ex. 4 at 12; Dkt. 52 at 56-
57 (Rabena). Three of these five soldiers were injured, and one, Private First Class l\/Iillican, was
killed. Dkt. 52 at 55-56 (Rabena). PFC Millican thwarted the militants’ effort to take the
command and control room when he threw himself on the grenade.8 Ia'. at 57 (Rabena); Ex. 4 at
17.

As the soldiers in the command and control room continued to fight back, they heard
gunshots and explosions elsewhere. They heard shots in the hallway and heard a grenade
explode in Fritz and Freeman’s room next door. Ex. 4 at 12-13; Dkt. 52 at 57 (Rabena). The

militants then took Fritz and Freeman from the officer’s room and led them out of the building.

 

8 PFC Millican was actually killed by gunfire and not the grenade, which was a “concussion”_
as opposed to a “high explosive”_grenade. Ex 4 at 12; Hrg. Tr. (Apr. 11, 2018) at 56-57
(Rabena). Because PFC l\/Iillican’s “actions absorbed the greater part ofthe blast,” his bravery
allowed the other soldiers in the room “to continue to resist.” Ex. 4 at 12.

23

Dkt. 52 at 58-59 (Rabena). While exiting the PJCC, the militants threw a high explosive
grenade into the hallway near the two rooms Ex. 4 at 13; Dkt. 52 at 57 (Rabena). That grenade
blast, along with increased gunfire, prevented the soldiers in the command and control room
from leaving the room. Ex. 4 at 13. Both Fritz and Freeman were alive at this time, although it
appears that Fritz was injured and bleeding. Id. Significantly, the militants did not attack the
soldiers on the second floor ofthe PJCC, providing further evidence that their mission was to
abduct the U.S. soldiers Dkt. 52 at 59~60 (Rabena). Upon returning to the courtyard, the
militants destroyed the Humvee that Chism and Falter had manned, as a well as an unmanned
second Humvee, Ex. 4 at 13, and they used “smoke grenades” to obscure their exfiltration. Dkt.
52 at 61-62 (Rabena). They then handcuffed Freeman and Chism and put them in one SUV and
handcuffed Fritz and Falter together and put them in a second SUV. Id. at 62 (Rabena). Up to
this point, the entire attack took only about ten to fifteen minutes Ia’. at 63 (Rabena).

The attackers fled, and a chase ensued. Hrg. Tr. (Apr 1 1, 2018) at 64, 73-74. The
militants drove toward the city of Hillah in the general direction of Iran. Ex. 25; Dkt. 52 at 70-
74 (Rabena). But instead of taking the road that directly connected Karbala with Hillah, they
took a long detour through l\/Iusayib. Dkt. 52 at 74 (Rabena); see Ex. 75 at 2. Their route
tracked a well-known “ratline,” a path along which Iran smuggled weapons and ammunition into
Iraq. Dkt. 52 at 74 (Rabena). lraqis who were sympathetic to Iran controlled the checkpoints
along the ratline and facilitated the passage of smuggled goods Ia’. at 75-77 (Rabena). No one
outside the area “would have known to take those roads unless they were being helped” by the
IRGC. Ial. at 76 (Rabena).

Ultimately, however, this escape route failed, Members of the Iraqi Army stationed at a

checkpoint in the town of Mahawil received word that an attack had occurred in Karbala and that

24

they should stop a “fast moving small convoy of SUVs.” Ia'. at 77~78 (Rabena); Ex. 4 at 8-9.
Earlier that day, three men had approached the Iraqi Army soldiers stationed at the checkpoint
and told them that a convoy would be coming through and that they needed to let the convoy
proceed. Dkt. 52 at 78 (Rabena). ln doing so, they provoked suspicion, asserting at times that
those in the convoy were Americans, and at other times saying that they were Israelis. Ia'.
(Rabena). Later, the three men came back to make sure that the Iraqi soldiers would facilitate
the passage of the convoy, and, as the convoy approached, they “yelled out to the guards, ‘Don’t
shoot them. Don’t shoot them. This is what we talked about.”’ Id. (Rabena). The Iraqi soldiers
figured out what was happening and, accordingly, detained the three men and pursued the
convoy. Ia'. (Rabena). lt was later determined that one of the three men was a high ranking
official from a Shia-affiliated militia. Ia’. at 77, 79-80 (Rabena).

With the guard posts now “really on alert” the militants knew “that someone [wa]s
following them.” Dkt. 52 at 79 (Rabena). As a result, they “took a back road, changed out of’
the U.S. Army Combat Uniforms that they wore, “abandoned most of [their] equipment,” and
shot Fritz, Chism, Falter, and Freeman. Ex. 4 at 8; Dkt. 52 at 80-96 (“[The attackers] had to
execute [the soldiers] because they couldn’t go any further.”). By the time the lraqi Army
arrived, only Freeman was still alive, and he died a short time later. Dkt. 52 at 83, 85 (Rabena).

2. The Direct Vl`ctl'ms

Fritz, Chism, and F alter each sustained numerous gunshot wounds and blunt force
injuries Based on the “signs ofvital reaction” to these wounds, the Court finds that the injuries
were inflicted while the soldiers were still alive. Dkt. 54 at 44-45 (l\/lallak). In addition, the
Court finds that each soldier was deliberately killed_or, to put it more precisely, executed_by

the attackers This finding is based on the location and nature of the soldiers’ wounds as well as

25

the fact that all four ofthe victims were handcuffed. Id. at 33-34 (Mallak). The Court also finds
that Fritz, Chism, and Falter were abducted so that they could be traded for militants held captive
by coalition forces Finally, the Court finds that the militants inflicted severe pain on their
captives likely for the purpose of punishing the U.S. military for its presence in Iraq or in order
to deter that presence.

The Armed Forces Medical Examiner concluded that First Lieutenant Fritz died from
multiple gunshot wounds and that the manner of death was homicide. Ex. 6 at 1.9 Fritz was shot
four times in the chest and once in the right shoulder. Dkt. 53 at 207-08 (Mallak). He also
suffered blunt force injuries on his face and head that are consistent with being beaten and
kicked. Ia’. at 202-04 (Mallak). The evidence demonstrates moreover, that Fritz was alive at
the time he was taken from the PJCC and at the time his injuries were inflicted. Among other
things he wrote his name in blood with his finger on the back of one ofthe SUVS, Dkt. 52 at 84
(Rabena); his captors handcuffed him, id. at 62; and his autopsy showed that he was alive for a
sufficient period of time to permit severe bruises to develop, Dkt. 53 at 203-10 (Mallak). In the
expert opinion of Dr. Craig Mallak, which the Court credits Fritz"s attackers inflicted “many”

wounds on him “prior to the fatal wound,” id. at 209 (Mallak), and these wounds would have

 

9 The Court admitted Exhibits 6, 7, 8, 9, 37, and 53 under the business records exception to the
hearsay rule. See Fed. R. Evid. 803(6). Exhibits 6, 7, 8, and 9 are the Armed Forces Medical
Examiner’s Report for the decedents made pursuant to 10 U.S.C. § 1471. Dr. Mallak confirmed
that all reports were signed by “subordinates [he] assigned to conduct the autopsies” and were
created as part of “standard procedure.” Hrg Tr. (Apr. 12, 2018) at 188-89 (Mallak). Exhibit 37
is the U.S. Central Command Case Summary for Al-Taie, and Exhibit 53 is U.S. Central
Command background information for Al-Taie and Qais al Khazali. Dkt. 43 at 4-5 (O’Leary
Decl. 1111 11-12). Both were released to Plaintiffs by the U.S. Department of Defense’s Central
Command and “_(1) were made at or near the time of the occurrence of the matters set forth
[therein]; (2) were kept in the course of regularly conducted activity of U.S. Central Command
or [the] United States Government; and (3) [made] such records []as a regular practice of that
regularly conducted activity.” Dkt. 43-6 at 2 (Custodian of Records Decl.).

26

caused Fritz to suffer severe pain, ia'. at 195-209 (Mallak).l° The Court also credits Dr. Mallak’s
expert opinion that “the location of [Fritz’s mortal] wounds the manner of the wounds [and] the
restraints placed on” Fritz, show that he was executed. Dkt. 54 at 33-34 (Mallak). The evidence
shows for example, that the militants moved a Kevlar plate from Fritz’s body armor in order to
inflict a mortal wound. Dkt. 53 at 21 1-12 (Mallak).

The Armed Forces Medical Examiner concluded that Chism also died from multiple
gunshot wounds and that the manner of his death was homicide. Ex. 7 at 2. Chism sustained
gunshot wounds to his torso, hand, and both legs Ex. 7 at 3-4; Dkt. 53 at 218-21 (Mallak). The
fatal gunshot punctured one of his lungs. Dkt. 53 at 216~17 (Mallak). Both of the gunshot
wounds to Chism’s upper body avoided his body armor, indicating that they were deliberately
inflicted by someone in close proximity who had control over Chism’s movements Ial. at 225-
27 (Mallak). Chism also had numerous contusions on his face, head, and body that, like Fritz,
were consistent with being beaten and kicked. Id. at 221, 224 (Mallak). At least one of these
blows was severe enough to cause bleeding in the back of his skull, the middle ear, and in the
spinal cord. Ial. at 223-24, 230 (Mallak). All of these injuries moreover, occurred while Chism
was alive and likely conscious and, according to Dr. Mallak, they caused Chism to experience
severe pain. Ia'. at 224-29; Dkt. 54 at 20-22 (Mallak). The location and nature of Chism’s
wounds and the use of handcuffs indicate that he was executed. Dkt. 54 at 33_34 (Mallak).

According to the autopsy report, Falter also died from multiple gunshot wounds and his
manner of death was homicide. Ex. 8 at 1. Falter was shot in the neck during the attack on the

PJCC, and, although that injury was “a very, very serious” one “that most people probably would

 

10 At the hearing, the Court concluded that Dr. Mallak was qualified under Federal Rule of
Evidence 702 to testify as an expert in the field of forensic pathology. Hrg. Tr. (Apr. 12, 2018)
at 187.

27

die [from] very quickly,” Ex. 8 at 2; Dkt. 54 at 27-28 (Mallak), there is evidence that Falter was
alive at the time of his abduction. Dkt. 54 at 26 (Mallak). After his abduction, he was shot
“execution style” from several inches away. Dkt. 52 at 86 (Rabena); Dkt. 54 at 27 (Mallak). In
addition, Falter had a “series of abrasions and contusions and hemorrhag[ing]” around his face
and head, torso, and extremities including a blunt force trauma to the head. Dkt. 54 at 28-29
(Mallak); Ex. 8 at 3. He Was alive when these injuries were inflicted and, according to Dr.
Mallak, would have suffered severe pain prior to and during his death. Dkt. 54 at 30_31; Ex. 8 at
2.

The Court, accordingly, finds that Fritz, Chism, and Falter were each shot, beaten, and
subsequently executed. Although it is possible that many ofthe contusions on the victim’s
bodies were received in the course of the abduction, the evidence that both Fritz and Chism were
kicked in the face, see Hrg. Tr. (Apr. 12, 2013) at 202-03, 221~23 (Mallak), along with the
extensive nature ofthe injuries all three sustained, supports a finding that the victims were
severely beaten while in captivity.

The Court also finds that each of the three were abducted to be used in an effort to
compel the Multi-National Force in Iraq to release detainees J ust a few months after the
Karbala attack, Qais Khazali admitted to U.S. authorities that the purpose of the attack was to
capture American hostages to be used to trade for detainees in the custody of coalition forces
Ex. 87b at 3. That admission, moreover, is consistent with the militants’ actions; they employed
sophisticated tactics that, in retrospect, were clearly designed to abduct U.S. military personnel.
They could have--and presumably would have_killed the victims at the PJCC ifthey did not

want to take them captive and they had an extensive exfiltration plan in place. See Dkt. 52 at 59

28

(Rabena) (describing the PJCC attack as “a clear abduction case” where “there was a reason why
they wanted to do a kidnapping”).

Finally, the Court finds that each ofthe direct victims was both a U.S. citizen and a
member of the U.S. armed forces See Ex. 69 at 1 (Certificate of Death (Overseas) for Jacob
Fritz, Feb. 1, 2007); Ex. 71 at 1 (Certificate of Death (Overseas) for Jonathan B. Chism, Feb. 1,
2007); Ex. 72 at l (Certificate of Death (Overseas) for Shawn Patrick Falter, Jan. 31, 2007).

3. Asaib Ahl al-Haq and Iran ’s Responsibill`tyfor the Karbala Attack

ln the immediate aftermath of the Karbala attack, the identity, affiliation, and specific
goals of the{attackers were not clear. The United States and coalition forces however, conducted
a comprehensive investigation of the attack and concluded that it was the work of AAH, which
had carried out the operation with Iran’s support. See Ex. 1 at 1-4, 7. Evidence of AAH and
lran’s involvement in the attack is manifold. First, the United States captured Qais Khazali (the
leader of AAH), Laith Khazali (his brother and lieutenant), and Ali Musa Daqduq (the Hezbollah
liaison between Iran and AAH). All three confirmed that AAH was responsible for the attack
and that it would not have been possible without Iran’s support. Second, the sophistication of the
attack provides compelling circumstantial evidence that Iran assisted the militants

a. Asaib Ahl al-Haq

AAH repeatedly claimed responsibility for the Karbala attack, First, the group produced
and published a video titled “The General’s Downfall,” which contains footage of the PJCC,
displays the photographs of the U.S. soldiers who were killed, and “claims [the attack] as one of
[its] successes.” Dkt. 53 at 98 (Gartenstein-Ross). This video, Ex. 20, was admitted into
evidence based on testimony from Dr. Gartenstein-Ross, describing internal and external indicia

that it was produced by AAH, see Dkt. 53 at 99-102 (Gartenstein-Ross). As Dr. Gartenstein-

29

Ross explained, the video served multiple purposes; it helped “rally[] popular support with AAH
portraying itself as being at the forefront ofthe resistance,” and it “show[ed] value to their
sponsors[,] like lran, that they[] [were] carrying out these attacks.” Ial. at 102 (Gartenstein-
Ross).

Second, the Khazali brothers and Daqduq confessed that AAH planned and carried out
the Karbala attack. Ex. 1 at 3. Daqduq, as noted earlier, was a senior Hezbollah operative tasked
with building and supporting Iraqi Shia militias as Iranian proxies Coalition forces captured
him along with the Khazali brothers on March 20, 2007 in lraq. Ex. 1 at 1_3; Ex. 2 at 4. Both
Daqduq and Qais Khazali admitted that Khazali “authorized the operation” and that another
AAH member, Azhar al-Dulaimi, “executed the operation.” Ex. 1 at 3; see Ex. 3 at 2
(interrogation report of Qais Khazali) (“[Khazali] stated that he was the religious approval
authority for the attack[]. . . . Reporting indicates that [Khazali] was directly in charge of the
individuals [who] conducted the attack.”); Ex. 87b at 3 (interrogation report of Qais Khazali).
The purpose of the attack, Khazali explained, was “to capture American hostages to be . . .
trade[d].” Ex. 87b at 3; see also Dkt. 52 at 59, 1 1 1 (Rabena).

Third, coalition forces recovered documents confirming that the attack was conducted by
AAH, with Iranian support. When Daqduq was taken captive, he was found with “detailed
documents that discussed tactics” for “attacl<[ing] lraqi and coalition forces” as well as “a
personal journa|” that recounted “his involvement with extremist operations in Iraq.” Ex. 1 at 3.
And, when Qais Khazali was captured, coalition forces recovered a twenty-two page, “in-depth
planning and lessons learned document” about the attack. Ex. 65 at 43. This document “laid
bare the extensive preoperational surveillance, logistical preparation, and tactical drills that were

carried out prior to the attack.” Ia'. Daqduq also had in his possession “information on exactly

30

how” the U.S. soldiers at the PJCC “defended that place,” which could only have been received
by “someone watching [the soldiers’] drills.” Hrg. Tr. (Apr. 11, 201) at 92_93 (Rabena).
b. lr_an

The Court also finds that Iran assisted AAH in planning and executing the Karbala attack.'
The twenty-two page document found when Qais Khazali was captured revealed the Quds
Force’s “intimate role in the[] preparations including provisions of the uniforms vehicles and
identification cards that allowed the attackers to disguise their intentions.” Ex. 66 at 45. Qais
Khazali and Daqduq, moreover, confirmed that Iran_through the Quds Force_~had provided
training, intelligence, and supplies that were essential to AAH’s ability to execute the operation.
Ia’.. They reported that “senior leadership within the Q[u]ds Force knew of and supported
planning for the eventual Karbala attack that killed five coalition soldiers.” Id. According to
Daqduq, “the lraqi [S]pecial [G]roups could not have conducted th[e] complex operation without
the support and direction of the Q[u]ds Force.” Ia'.

The sophistication, complexity, and skilled execution of the attack corroborate Khazali
and Daqduq’s statements regarding Iran’s involvement. The evidence leaves little doubt that the
assault was “resourced from the outside” with supplies that the local militia could not have
obtained without assistance. Dkt. 51 at 59 (Rabena). These supplies included U.S. uniforms
weapons and vehicles designed to resemble those of American soldiers Ia'. at 59-60 (Rabena);
see id. at 80 (Rabena) (“The level of planning and resourcing and logistical support for this was .
. . above and beyond anything we had ever seen before.”). The black Suburban SUVs, for
example, could not have been obtained by a Shia militia acting on its own. Ia'. at 81 (Rabena).

The attackers also had detailed knowledge about the layout of the PJCC and intelligence

on how the soldiers there would respond to a small arms attack. Dkt. 52 at 52-53, 106-07

31

(Rabena). This information allowed the militants to abduct the U.S. soldiers even though they
were vastly outnumbered by U.S. forces Ia'. at 52 (Rabena). When the militants entered the
PJCC, “they knew exactly where they were going” and were able to get out before the coalition
forces were able to respond. Ia'. at 106-07 (Rabena). The attackers knew to cover the entry of
the assault force by firing on the PJCC from outside the building, prompting the U.S. forces to
believe that they were under a small arms attack rather than recognizing the true purpose of the
mission. Ia'. (Rabena). The nature ofthe attack thus confirms Khazali and Daqduq’s reports that
Iran provided critical intelligence to the attackers Ex. 1 at 3-4.

The speed, efficiency, and skill with which the attack was executed further supports the
finding that the militants received training from Iran. The testimony Plaintiffs offered at the
hearing showed that “local insurgents” were not “so well[-]orchestrated” and “coordinated.”
Dkt. 52 at 106 (Rabena). The planning document recovered during Daqduq’s capture, moreover,
showed that the attackers had set up “a mock site” where they “practice[d] and train[ed] and
rehearse[d]” how the assault would unfold. Ia'. at 93 (Rabena). U.S. military officials
concluded that this facility was “at a minimum sponsored by Iran and the IRGC.” Ia'. at 115
(Rabena).

The nature of the exfiltration provides yet further support for a finding that Iran supported
the attack. As explained above, during the exfiltration the attackers took an indirect route that
followed an Iranian “ratline” rather than following a route that would have more directly
connected Karbala with the militants’ apparent destination. Ia’. at 73-74 (Rabena). The facts
that the attackers knew to use this “ratline” and that they were able make their way through

several security checkpoints suggests that Iran helped coordinate the attackers’ safe passage. Ia'.

32

at 107 (Rabena) (“[F]acilitat[ing] the passage [from] one province . . . into another province has
to be done by a central figure[] like the IRGC . . . .”).

In sum, the evidence obtained from Qais Khazali and Daqduq, and each of these features
of the attack, provides “credible evidence of lranian involvement.” Ia'. at 1 13 (Rabena). The
Court finds that there is more than ample evidence that Iran assisted AAH in planning and
carrying out the Karbala attack and that the attack would not have been possible without that
assistanceIl
C. The Abduction and Execution of Ahmed Al-Taie

l. T he Abductl'on

In 2005, Staff Sergeant Ahmed Al-Taie was deployed to Baghdad, Iraq to serve as a
translator for a Provincial Reconstruction Team. Dkt. 54 at 51-52 (H. Taie); Hrg. Tr. (April 11,
2018) at 11 (Casey). On October 23, 2006, he left the secure zone to visit his wife, who lived in
the city. Ex. 37. While outside ofa relative’s home, he was kidnapped and taken away in a
vehicle. Ia'.; Ex. 53; Ex. 65 at 46; Dkt. 52 at 25 (Casey). At the time ofthe kidnapping, Al-
Taie’s captors, members of JAM, were unaware that Al-Taie was an American soldier and were

not prepared to evade the massive search-and-rescue mission that the U.S. military would

 

ll One of the reports from Qais Khazali’s interrogation states: “Reporting also suggests [that]
the attack was not sanctioned by IRGC[’s] [Quds Force].” Ex. 3 at 6. The document does not
describe the basis for that statement. The statement, as Dr. Gartenstein-Ross explained, is an
example of low-level “raw intelligence” that will often contain “a number of different
contradictory strands.” Hrg. Tr. (Apr. 12, 2018) at 70-71 (Gartenstein-Ross). In contrast, the
high-level intelligence on the Karbala attack_most notably, the conclusions summarized by
Brigadier General Bergner during his press conference_consistently conclude that Iran was
involved in the planning for the Karbala attack, Ia’. at 71 (Gartenstein-Ross). Similarly, the
statement from the interrogation report is contradicted by the planning document found with
Daqduq and other statements made by Qais Khazali and Daqduq themselves See, e.g., Ex. 1 at
3-4. The one piece of evidence that Iran was not involved, accordingly, does not alter the
Court’s finding that the Iran supported the Karbala attack.

33

inevitably undertake. Ex. 37 at 2 (case summary from U.S. Central Command on Al-Taie dated
Feb. 28, 2010); Ex. 65 at 46; Dkt. 53 at 8 (Levitt). And, indeed, when the military learned of Al-
Taie’s abduction, in the words of General George Casey, the Commander of the Multi-National
Forces in Iraq at the time of the search, it “locked down” Baghdad “for a week” and had
“soldiers searching everywhere for him.” Dkt. 52 at 25 (Casey). The entire “intelligence
community of the United States [was] focused on recovering one soldier.” la'. at 27 (Casey). On
an ongoing basis moreover, there was a unit dedicated solely to “track[ing] missing soldiers and
missing remains until . . . everybody [was] back.” la'. at 26 (Casey).

By early November 2006, after Al-Taie’s abductors realized that he was a U.S. soldier,
they transferred him to AAH. Dkt. 53 at 8-12 (Levitt); Ex. 37; Ex. 53 at 2; Ex. 65 at 46. AAH
kept Al-Taie as a bargaining chip. Ex. 65 at 46. In December 2006, for example, it “demanded a
prisoner exchange for his release,” and a year later, it “demanded” that coalition forces release
the Khazali brothers in exchange for Al-Taie. Ex. 53 at 2. On February 14, 2007, an AAH
“front group” called Ahl al-Bayt Brigades released a “proof of life” video of Al-Taie. Ex. 21;
Ex. 53 at 2; Ex. 65 at 47; Dkt. 53 at 142-47 (Gartenstein-Ross). Significantly, that video was

held by Daqduq before it was released. Dkt. 53 at 142, 144-45 (Gartenstein-Ross).
Information about what happened next comes from _

_- Ex. 76 el l l_
-). According to _ declaration, Al-Taie was held by AAH_

flem- le_- EX- 76 el 2, 4 l_)- _
_
_- “AAH eventually released Al-Tele’e

remains in February 2012,” Ex. 66 at 52, more than five years after his abduction. According to

34

the Iraqi Shia politician who supervised the negotiations for the release ofAl-Taie’s remains
“AAH acknowledged killing Al-Taie within a year of his abduction.” Ia’.

2. T he Hostage Taking, Torture, and Executl`on of Ahmed Al-Tal`e

Al-Taie was born in Iraq and became a naturalized citizen of the United States while
serving in the U.S. military. Dkt. 54 at 48-49 (H. Taie). By the time AAH released Al-Taie’s
remains they were in a state of advanced decomposition. Dkt. 54 at 35-36 (Mallak). As a
result, the Armed Forces Medical Examiner was able to reach only a limited set of conclusions
The cause of Al-Taie’s death was a gunshot wound or wounds and the manner of his death was
homicide Ex. 9 at 2-4; Dkt. 54 at 34-35 (Mallak). Al-Taie was shot twice, once in the torso
and a second time in the neck. Ia'. at 38-40 (Mallak). The gunshot to his neck is consistent with
an execution-style killing la’. at 43-44 (Mallak).

The - declaration sheds further light on Al-Taie’s treatment at the hands of AAH.

According to_ Al-Taie was “was beaten on a daily basis.” Ex. 76 at 2 (_).

_ could hear “both the physical impacts”. ofthe blows and Al-Taie’s “cries of pain.” Id.

_ ebel “they lled exeeuled” Al-Tele.
ld- el 4 <_). _

_ “all of the other hostages had been killed” either because they “tr[ied] to
escape” or because the captors believed the U.S. military was going to raid the house in which
the hostages were being held. la'. The Court, accordingly, finds that Al-Taie was brutally beaten
and was eventually executed. Based on _ declaration, moreover, the Court finds that Al-
Taie suffered severe and persistent pain due to his repeated beatings The Court also finds that
Al-Taie was detained as a bargaining chip, which AAH sought to use to compel the release of the

Khazali brothers and at least one other detainee

35

3. Asaib Ahl al-Haq and Iran ’S Responsibilily

Although Al-Taie was initially abducted by JAM, AAH took and held Al-Taie shortly
after he was kidnapped, and its members beat and eventually killed him. The evidence of AAH’s
role is compelling The “proof of life” video was released by a front group for AAH, see Ex. 53
at 2; Dkt. 53 at 146-47 (Gartenstein-Ross), and Daqduq had the video before its release, Dkt. 53
at 144~45 (Gartenstein-Ross). In an interview with the Islam Tl`mes website, AAH’s deputy
leader, moreover, Akram al-Kabi, admitted that AAH did not release Al-Taie because he was “a
U.S. soldier who was working directly with the U.S. military command in lraq.” Ex. 66 at 52.

the “Khazali brothers” were “responsible for [Al-Taie’s] abduction and captivity.” Ex. 76 at 3

<_). _ Sew e- eepelve who
fit Al-Taie’s description. Ex. 76 at 2-3 _). The fact that Al-Taie’s captors

demanded the release of the Khazali brothers in exchange for Al-Taie’s release, and the fact that
AAH ultimately released his body, further support the conclusion that AAH held Al-Taie. Dkt.
53 at 137 (Garenstein-Ross).

The evidence that AAH held Al-Taie captive is also consistent with the group’s modus
operandi. Throughout its existence, AAH has focused on attacking U.S. and coalition forces
and, on multiple occasions it has taken hostages Ex. 66 at 55. In addition, after thoroughly
investigating Al-Taie’s abduction, the U.S. Army concluded that Qais Khazali and AAH were
responsible, see Ex. 5 (CID Report); Dkt. 53 at 155-58 (Gartenstein-Ross),_ and Plaintiffs’
expert, Dr. Gartenstein-Ross, opined that “AAH held Mr. Al-Taie,” and “was responsible for his
murder,” Dkt. 53 at 158. The Court shares that view and, accordingly, finds that AAH was

responsible for holding and beating Al-Taie and for his eventual murder.

36

lran, for its part, supported AAH’s actions As explained above, Iran provided AAH with
significant funding, supplies training, and other support. As part of its general efforts to train
lraqi Shia militants Iran instructed AAH on how to kidnap and move high-value targets Dkt. 53
at 159, 170 (Gartenstein-Ross). In the words of Dr. Levitt, members of AAH “were trained for
exactly this type of mission by Iran and by Hezbollah.” Dkt. 53 at 16 (Levitt). There is also
substantial evidence that the availability of Iranian “ratlines,” and lranian financial support,
allowed AAH to evade the massive manhunt undertaken by U.S. and coalition forces in an effort
to rescue Al-Taie. See Dkt. 53 at 138-42, 162_71 (Gartenstein-Ross). In particular, the fact that
Al-Taie was moved freq uently_including in broad daylight-demonstrates that his captors were
receiving “intelligence from a service like Iran.” Dkt. 53 at 139 (Gartenstein-Ross). The fact
that Daqduq, a Hezbollah operative, had the proof of life video before it was released, moreover,
further evidences Iranian support. Id. at 162 (Gartenstein-Ross). Based on all of this evidence,
Dr. Gartenstein-Ross opined with “100 percent” confidence that Iranian support was used to hold
Al-Taie. Id. at 169 (Gartenstein-Ross). Once again, the Court concurs in this conclusion and,
accordingly, finds that Iran provided essential support to AAH and that it was foreseeable that
AAH would use that support to hold, beat, and-murder Al-Taie.

III. CONCLUSIONS OF LAW

Under the Foreign Sovereign Immunity Act, 28 U.S.C. § 1604, a foreign state, including
its instrumentalities is immune from suit in state or federal court unless the case falls within an
express statutory exception. See Kz`lburn v. Socialist People ’s Libyan Arab Jamahiriya, 376 F.3d
1123, 1 126 (D.C. Cir. 2004). For present purposes the sole relevant exception is found in the
“state-sponsored terrorism exception,” 28 U.S.C. § 1605A, which both confers subject matter

jurisdiction on federal courts to hear certain terrorism-related claims see 28 U.S.C. § 1330(a),

37

and recognizes a federal cause of action against those foreign states subject to the exception, see
Owens, 864 F.3d at 764-65. The FSIA also addresses personal jurisdiction and specifies precise
procedures that a plaintiff must follow_at times with the assistance of the clerk of the court and
the U.S. Department of State-to effect service on a foreign state. 28 U.S.C. § 1608.

The Court must satisfy itselfthat an FSIA plaintiffhas cleared each of these hurdles even
if the defendant fails to appear. First, because the FSIA deprives courts of subject matter
jurisdiction in the absence of a relevant exception, a failure to appear does not waive the defense
and the courts are “obligated to consider sua sponte” whether they havejurisdiction hear the case
and to order any relief. Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); see also Verlinden B. V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 493 n.20 (1983) (even where a defendant foreign state does
not appear, the Court “still must determine that immunity is unavailable”). Second, with respect
to the substance of the Plaintiffs’ state or federal law claims as noted above, the FSIA precludes
courts from entering a defaultjudgment against a foreign state unless the court is satisfied that
the plaintiff has established her right to relief. 28 U.S.C. § 1608(e); see also Owens, 864 F.3d at
784-86. And, because “the entry of a default judgment is not automatic,” courts must “satisfy
[themselves] that [they have] personal jurisdiction before enteringjudgment against an absent
defendant.” Mwanl` v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005).

Each of these inquiries in turn, implicates a slightly different standard of proof. To
establish subject matterjurisdiction, an FSIA “plaintiff bears an initial burden of production to
show [that] an exception to immunity, such as § 1605A, applies.” Owens, 864 F.3d at 784.
Having cleared this initial hurdle, however, “the plaintiff must still prove [her] case on the
merits.” Id. To do so, the plaintiff must “establish” her right to relief, which does not “relieve[]

the sovereign of the duty to defend” but, nonetheless requires that the plaintiff offer admissible

38

evidence sufficient to substantiate the essential elements of her claim. Id. at 785-86 (quotations
omitted). Finally, to establish personal jurisdiction over a defaulting defendant, the plaintiff
must make “a prima facie showing of [personal] jurisdiction.” Mwani, 417 F.3d at 6-7.

As explained below, the Court concludes that it has subject matterjurisdiction over
Plaintiffs’ claim and personal jurisdiction over the Islamic Republic of Iran and the Islamic
Revolutionary Guard Corps.]2 The Court also concludes that, for the most part, Plaintiffs have
carried their burden of establishing a right to relief under the federal cause of action established
in § 1605A. The one exception, as Plaintiffs concede, is that Bashar Al-Taie, one ofAhmed Al-
Taie’s brothers is not a U.S. national, member of the U.S. armed forces or an employee or
contractor of the U.S. government acting within the scope of his employment, and, accordingly,
is not entitled to relief under the federal cause of action. Moreover, the Court concludes that, at
least on the present record, Bashar Al-Taie has yet to establish his right to relief under D.C. law.
Finally, the Court will defer to the damages stage the determination of whether each of the
plaintiffs has established the necessary familial relationship to recover individual damages and, if
so, the damages to which each is entitled.

A. Subject Matter Jurisdiction and Liability for § 1605A(c) Claims

“[T]he [federal] district courts . . . have original jurisdiction” over “any nonjury civil

action against a foreign state” asserting “any claim for relief in personam with respect to which

the foreign state is not entitled to immunity under” the FSIA. 28 U.S.C. § 1330(a). The Court,

 

12 Because the IRGC is itself a “governmental” entity, it is properly “considered the foreign state
itself,” and not merely an “instrumentality of the foreign state.” Roeder v. Islamic Republic of
Iran, 333 F.3d 228, 234 (D.C. Cir. 2003); see also TMR Energy Ltd. v. State Prop. Fund of Ukr.,
411 F.3d 296, 300 (D.C. Cir. 2005) (explaining that “an entity that is an integral part ofa foreign
state’s political structure is to be treated as the foreign state itself’ for purposes of “determining
the proper method of service under the FSIA” (internal quotation marks omitted)).

39

accordingly, has subject matter jurisdiction over the present “nonjury civil action” against Iran if,
and only if, the conditions for the waiver ofimmunity found in 28 U.S.C. § 1605A are satisfied.
As explained below, Plaintiffs have carried their burden of establishing the Court’s subject
matter jurisdiction.

Under the state-sponsored terrorism exception, 28 U.S.C. § 1605A(a)(1), a foreign state
is not immune from the jurisdiction ofthe federal and state courts in cases in which

[(1)] money damages are sought against a foreign state [(2)] for personal injury or

death [(3)] that was caused by [(4)] 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 or resources is [(5)] 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. § 1605A(a)(1). The exception, moreover, applies only to suits in which two additional
requirements are met. First, the claimant or victim must be a U.S. national, a member ofthe U.S.
armed forces or a U.S. government employee or contractor at the time the act of terrorism
occurred. 28 U.S.C. § 1605(a)(2). Second, the foreign state must be designated as a state
sponsor of terrorism both at the time the act occurred (or was so designated as a result of the act)
and at the time the lawsuit was filed (or was so designated within the six-month period preceding
the filing ofthe suit).13 Id.; see.also Owens, 864 F.3d at 763.

Most of the conditions for subject matterjurisdiction are easily addressed in this case.
First, Plaintiffs seek only monetary relief and attorneys’ fees See Dkt. 9 at 22-33 (Am. Compl.

1111 80-130). Second, although the claims brought by the estates of direct victims differ in certain

 

13 Section 1605A(a)(2) also requires that the foreign state have received “a reasonable

opportunity to arbitrate the claim,” but only if the act of terrorism “occurred in the foreign state
against which the claim has been brought.” 28 U.S.C. § 1605A(a)(2)(A)(iii). That requirement
is inapplicable to the facts of this case because none of the alleged acts of terrorism occurred in

Iran.

40

respects from those brought by the victims’ families all ofthe claims seek to recover “for
personal injury” or “death.” Third, Iran was designated as a state sponsor ofterrorism in 1984,
see 49 Fed. Reg. 2836-02 (Jan. 23, 1984) (statement of Secretary of State George P. Shultz), and
remains designated as a state sponsor of terrorism to this day, see U.S. Dep’t of State, State
Sponsors of T errorism, available at https://www.state.gov/j/ct/list/cl415 l .htm (last visited
August l, 2018). Moreover, because the IRGC is properly considered “an integral part” of the
“foreign state” of lran, TMR Energy Ltd., 41 1 F.3d at 300, and because § 1605A focuses on
whether “the foreign state” was designated_and not whether each named defendant was
separately designated_the Court concludes that the designation of Iran as a state sponsor of
terrorism is sufficient to satisfy the designation requirement as to both defendants See 28 U.S.C.
§ 1605A(a-)(2)(A)(i)(1). Fourth, at the time the relevant acts occurred, all four victims were both
U.S. nationals and members of the U.S. armed forces

As a result, the only substantialjurisdictional question left for the Court is whether the
injuries and deaths of the servicemen were “caused by . . . act[s] of torture, extrajudicial killing
. . . hostage taking, or the provision of material support or resources” by an “official, employee,
or agent of” Iran. 28 U.S.C. § 1605A(a)(1). For the reasons explained below, the Court
concludes as follows: (1) AAH committed acts of “hostage taking,” “torture,” and “extrajudicial
killing” within the meaning of the lnternational Convention Against the Taking of Hostages and
the Torture Victim Protection Act; (2) Iranian officials and their agents provided “material
support or resources” for these acts within the meaning of 18 U.S.C. § 2339A; and (3) Iran’s
provision of material support caused the injuries and deaths of the four victims Plaintiffs’
claims accordingly, fall within the state-sponsored terrorism exception of 28 U.S.C. §

1605A(a)(1).

41

l . Asaib Ahl al-Haq ’s Acls of Hostage Taking, Torture, and Exlrajudicial Killing

The state-sponsored terrorism exception to the FSIA defines the terms “hostage taking,”
“torture,” and “extrajudicial killing” by reference to the Convention Against the Taking of
Hostages, 1316 U.N.T.S. 205, and the Torture Victim Protection Act, 28 U.S.C. § 1350 note,
respectively. The Court will address each of these concepts in turn.

a. l-loslage Taking

The FSIA’s definition of “hostage taking” is borrowed from Article 1 of the International
Convention Against the Taking of Hostages. 28 U.S.C. § 1605A(h). Under that treaty, “hostage
taking” means

seiz[ing] or del'ain[ing] and threaten[ing] to kill, to injure or to continue to detain

another person . . . in order to compel a third party, namely, a State, an international

governmental organization, a natural or juridical person, or a group of persons to

do or abstain from doing any act as an explicit or implicit condition for the release

ofthe hostage . . . .

International Convention Against the Taking of Hostages art. 1, Dec. 17, 1979, 1316 U.N.T.S.
205 (emphases added). The Convention further provides that anyone who “attempts to commit
an act of hostage-taking” or who “participates as an accomplice of anyone who commits or
attempts to commit an act of hostage taking likewise commits an offense for the purposes of
[the] Convention.” Id.

The Court concludes that AAH committed acts of “hostage taking” when it seized and
(briefly) detained Fritz, Chism, and Falter. As explained in the Court’s findings of fact, AAH
attacked the Karbala PJCC and abducted Fritz, Chism, and Falter “in order to compel a third
party”-namely, the United States and/or coalition forces_to release detainees “as [a] . . .

condition of the release of the” abductees. See supra Part II.B.2; see also Ex. 87b at 3; Hrg. Tr.

(April 11, 2018) at 1 11 (Rabena). The fact that AAH failed in this mission before it was able to

42

communicate its conditions for the release of the U.S. soldiers moreover, does not undercut

Plaintiffs’ claim. As the D.C. Circuit has explained:

The plain text ofthe FSIA definition, explanatory commentary on the Convention,
and precedent under the Federal Hostage Taking Act (“FHTA”), 18 U.S.C. § 1203,
which defines the behavior proscribed in terms identical to the Convention, all
reflect that a plaintiff need not allege that the hostage taker had communicated its
intended purpose Consistent with the plain text, the court in Price [v. Socialist
People ’s Libyan Arab Jamahiriya, 294 F.3d 82, 94 (D.C. Cir. 2002)] explained that
the intentionality requirement focused on the mens rea of the hostage taker. . . .
The commentary . . . similarly explains that “demands” are not required to establish
the element ofhostage taking: “The words ‘in order to compel’ do not require more
than a motivation on the part of the offender.” Case law under the FHTA[,]
[moreover,] reflects the same analysis

Simpson v. Socialist People ’s Libyan Arab Jamahiriya, 470 F.3d 356, 360 (D.C. Cir. 2006)
(internal citations omitted) (“Simpson 11”). Here, the evidence establishes that the three soldiers
were seized for the purpose of exercising precisely the type of “third-party compulsion” that the
Convention proscribes See Simpson v. Socialist People ’s Libyan Arab Jamahiriya, 326 F.3d
230, 234-35 (D.C. Cir. 2003) (“Simpson l”). Nothing more is required.

The conclusion that AAH committed an act of “hostage taking” when it “detained” Al-
Taie is if anything, even more clear cut. AAH was not responsible for Al-Taie’s initial
abduction, but the evidence established that it held Al-Taie captive for an extended, if unknown,
period oftime. See supra Part II.C.l ; see also Ex. 53 at 2; Ex. 66 at 55; Dkt. 53 at 146-47
(Gartenstein-Ross). The language of the Convention is clear, and it applies to those who “seize”
or “detain” another person, and, regardless of whether the transfer of Al-Taie from JAM to AAH
constituted a “seizure,” AAH certainly “detained” him. Moreover, unlike in the case of Fritz,
Chism, and Falter, AAH actually communicated its demands that coalition forces release certain

detainees in exchange for Al-Taie. See supra Part III.C.1_2; see also Ex. 53.

43

The Court, accordingly, concludes that AAH committed acts of“hostage taking” within
the meaning of the lnternational Convention Against the Taking of Hostages with respect to all
four ofthe direct victims

b. Torture

For the definition of “torture,” the FSIA looks to the Torture Victim Protection Act of
1991 (“TVPA”), Pub. L. No. 102-256, 106 Stat. 73, which defines “torture” as:

[A]ny act, directed against an individual in the offender’s custody or physical

control, by which severe pain or suffering (other than pain or suffering arising from

or inherent in, or incidental to, lawful sanctions), whether physical or mental, is

intentionally inflicted on that individual for such purposes as obtaining from that

individual or a third person information or a confession, punishing that individual

for an act that individual or a third person has committed or is suspected of having

committed, intimidating or coercing that individual or a third person, or for any

reason based on discrimination of any kind.

Id. The Act defines “mental pain or suffering” as “prolonged mental harm caused by or resulting
from . . . the intentional . . . or threatened infliction of severe physical pain or suffering; [or] . . .
the threat of imminent death.” Id. § 3(b). Accordingly, to establish that AAH “tortured” Fritz,
Chism, Falter, and Al-Taie, Plaintiffs must show that members of AAH (1) intentionally inflicted
severe pain or suffering on the soldiers (2) while they were in AAH’s “custody or physical
control,” (3) for a purpose “such . . . as” obtaining information or a confession, punishing the
soldiers or others or intimidating or coercing the United States coalition forces or others Id.

Each of these elements poses one or more significant questions To start, the meaning of
the term “severe” is not self-evident. “The severity requirement is crucial to ensuring that the
conduct proscribed by the . . . TVPA is sufficiently extreme and outrageous to warrant the
universal condemnation that the term ‘torture’ both connotes and invokes.” Price, 294 F.3d at

92. But determining “how much actual pain or suffering . . . defendants [must] inflict before

their conduct rises to the level of torture,” id., cannot be assessed based on any formula or

44

precise measure The Court must, instead, consider the “intense” or “lasting” nature ofthe
abuse, the cruelty and depravity of the assailant, and the frequency and duration of each assault,
Id. at 92-93. On one extreme, we know that “[n]ot all police brutality, [or] instance of excessive
force used against [a] prisoner[]” rises to the level of “torture.” Id. at 93. And, on the other
extreme, we know, for example, that “sustained systematic beating, application of electric
currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme
pain” clearly cross the line. Id. at 92 (quoting S. Exec. Rep. No. 101-30, at 14 (1990)). But,
between these poles the Court is left with little guidance in assessing whether the act was “of an
extremely cruel and inhuman nature, specifically intended to inflict excruciating pain or
suffering.” Id. at 93 (quoting same).

The “purpose” requirement poses yet a further set of difficulties particularly in FSIA
terrorism cases where “firsthand evidence and eyewitness testimony is difficult or impossible to
obtain.” Owens, 864 F.3d at 785. Although the list of purposes provided in the statute_
“obtaining . . . information or a confession”; “punishing,” “intimidating[,] or coercing” an
individual or third-party; or inflicting pain “based on discrimination of any kind,” 28 U.S.C. §
1350 note_is not exhaustive, it is illustrative Price, 294 F.3d at 93. Each example, moreover,
makes clear that “suffering alone is insufficient to establish a claim under the FSIA’s terrorism
exception.” Han Kim, 774 F.3d at 1050. Nor is it enough to find that a defendant purposefully
assaulted or injured the victim; torture requires a specific intent to inflict severe pain or suffering,
and it further requires that the assailant inflict that pain or suffering for one of the purposes
specified in the TVPA or for a similar purpose 28 U.S.C. § 1350 note

Finally, the custody requirement poses a further hurdle, particularly in cases_like this

one_in which the victims are deceased, the assailants are not in U.S. custody, and there is little

45

eyewitness testimony. Owens, 864 F.3d at 785. Under these circumstances the Court must do
its best to determine which injuries were sustained after the victims were captured and taken into
custody, and which injuries were sustained in the battle or assault leading up to their abduction.

The Court’s findings regarding the abduction and murder of Fritz, Chism, and Falter
highlight these at times overlapping difficulties First, the evidence shows that a number of their
most severe injuries were sustained before their capture Most notably, there is evidence that all
three soldiers were shot in the course of the attack and that Falter, in particular, was gravely
injured during the first moments ofthe AAH’s assault on the PJCC. There is also evidence,
however, that all three were alive at the time they were captured and that they sustained
numerous additional injuries while in custody. See supra, Part II.B.2; Dkt. 54 at 44-45 (Mallak).
The question, then, is whether those further injuries were inflicted with the requisite intent to
inflict severe pain and were sufficiently “extreme and outrageous to warrant the universal
condemnation that the term ‘torture’ both connotes and invokes.” Price, 294 F.3d at 92.
Although a close question, the Court concludes that Plaintiffs have offered evidence satisfactory
to the Court. 28 U.S.C. § 1608(e). Both the depravity of the abuse and the purpose for which it
was inflicted suggest that the victims’ injuries were the result of “torture” under the TVPA.

First, the extreme and gratuitous nature of the beatings the victims suffered were
sufficiently “severe” to constitute torture Fritz, Falter, and Chism were all shot in the course of
their abduction. To be sure, this in and of itself`, does not suggest torture Despite the
substantial evidence regarding the pain the victims suffered as a result of their gunshot wounds
see Dkt. 53 at 30-31, 195-209, 224-29 (Mallak), there is no evidence that the militants shot their
victims with the specific intent of causing pain or suffering_as opposed to their evident intent to

subdue and then to execute the soldiers There is substantial evidence, however, that the soldiers

46

were badly beaten while in custody and while handcuffed Those beatings did not take place
over an extended period of time, but they were severe, and given the state of the soldiers they
demonstrated an intent to cause extreme pain and suffering Most strikingly, there is evidence
that Chism was kicked in the face, while handcuffed, with sufficient force to cause bleeding in
the back ofthe skull, the middle ear, and the spinal cord Dkt. 53 at 221-24, 230 (Mallak). The
evidence also shows that Fritz was likely kicked in the face, id. at 203 (Mallak), and that Falter
suffered blunt force trauma to his head, Dkt. 54 at 29 (Mallak).

Taken together, this evidence supports the inference that all three men were kicked or
otherwise beaten in the head while handcuffed and_significantly-while already suffering from
severe gunshot wounds Although not every beating of a person in custody rises to the level of
severity or heinousness required to constitute torture, and while it does a disservice to the victims
of torture to dilute the meaning of that concept, the Court is satisfied that kicking or beating
someone in the face or head who is already suffering from a serious_and perhaps life
threatening_-gunshot reflects the type of depravity and enormous suffering that the TVPA and
international law condemns ln some cases the relative brevity of the victim’s pain and
suffering might counsel against a finding oftorture. In others including this one, the
gratuitousness, intensity, and inhumanity of the assault permits a finding of torture, although the
short period of time might bear on the assessment of damages

Second, the Court concludes that this abuse was motivated by the types of invidious
purposes encompassed by the TVPA. Specifically, the Court concludes that the soldiers were
beaten for the purpose of punishing the United States and coalition forces for their presence in
Iraq and to induce those forces to leave the region. In circumstances such as these, where the

victims were violently abducted, it can be difficult to determine which abusive acts were carried

47

out for which purpose One act of abuse may have been to ensure the total submission of the
hostage, while another may have punished the victim for the United States’ role in Iraq. Here,
however, the record supports the conclusion that AAH abused the victims for a purpose
“such . . . as. . . punishing” the soldiers or others or “intimidating[,] or coercing” the United
States coalition forces or others See 28 U.S.C. § 1350 note The circumstances of the Karbala
attack, and the broader role of the AAH as an Iranian proxy to drive the United States out of the
Gulfregion, all suggest that AAH abused the victims for the purposes encompassed by the
TVPA. See supra, Part II.A.3; see also Ex. 65 at 18 (describing Iran’s overall goal to
“humiliate[]” the United States in Iraq and “force[] [it] out ofthe region in disgrace” in order to
deter it from “pursuing similar military interventions in the [Gulf] region in the future”). This
evidence satisfies the demands of the TVPA’s “purpose” requirement

In reaching these conclusions the Cour.t recognizes that “[w]e cannot know with
certainty precisely what occurred between” the soldiers’ “capture and [their] deaths.” Foley v.
Syrian Arab Republic, 249 F. Supp. 3d 186, 203 (D.D.C. 2017). But that is because Defendants
have defaulted and because the assailants are not subject to process in the United States. As the
Court of Appeals has observed, “[r]equiring a plaintiff to produce direct, firsthand evidence of
the victim’s torture and murder would . . . thwart the purpose of the terrorism exception” to the
FSlA: “holding the state sponsor of terrorism accountable for torture and extrajudicial killing”
Han Kim, 774 F.3d at 1045.' In the present context, the Court concludes that there is sufficient
evidence to support the inference that, while in the custody of the assailants Fritz, Chism, and
Falter were intentionally subjected to severe pain in order to punish them for the U.S. presence in
Iraq and to send a message to the United States and other U.S. forces that they should leave the

Gulfregion.

48

The Court also concludes that Plaintiffs have offered evidence sufficient to show that Al-
Taie was tortured Unlike in the case of Fritz, Chism, and Falter, the evidence shows that Al-
Taie was subject to severe beatings over an extended period of time As described above, see
supra Part II.C.2, Plaintiffs offered compelling evidence that Al-Taie was beaten “[o]n a daily
basis” and that the physical impact ofthe blows and Al-Taie’s “cries of pain” could be heard by
another prisoner, held in a different room. See Ex. 76 at 2 _). Other
decisions from this Court recognize that repeated beatings over an extended period of time may
constitute torture within the meaning of the TVPA and the state-sponsored terrorism exception to
the FSIA. See, e.g., Kilburn v. Islamic Republic oflran, 699 F. Supp. 2d 136, 152 (D.D.C. 2010)
(holding that “beatings, unsanitary conditions inadequate food and medical care, and mock
executions” over 18 months were “torture”); Regier v. Islamic Republic of lran, 281 F. Supp. 2d
87, 91, 92, 97 (D.D.C. 2003) (concluding that victim was “tortured” after he was “abducted at
gunpoint . . . forced into an automobile, and blindfolded,” “punch[ed]” and “kicked in the face
while he was sleeping,” and “beaten by his captors and threatened with death if he did not act
exactly as they demanded” in the course of his 65-day captivity); Cicippio v. Islamic Republic of
Iran, 18 F. Supp. 2d 62, 65 (D.D.C. 1998) (finding “torture” where prisoners were “subjected to
regular beatings on all parts of their bodies” over an lS-month period). Here, the evidence
supports a finding of repeated and severe beatings and the absence of further detail about
precisely how many beatings Al-Taie endured, the exact period of time over which those
beatings occurred, or the specific nature of the beatings and the injuries sustained can only be
blamed on the fact that Al-Taie was killed_and thus cannot testify_and that eyewitnesses are

unavailable to appear. See Han Kim, 774 F.3d at 1045.

49

The intent of Al-Taie’s captors to inflict severe pain, and their purpose for doing so, can
be readily inferred from the available facts Al-Taie was subjected to repeated beatings while in
captivity. And, as with the beatings of Fritz, Chism, and Falter, the evidence that Plaintiffs
offered regarding Iran’s use of lraqi proxies like AAH, to exert pressure on the United States to
leave the Gulf region is sufficient to infer that Al-Taie was beaten to punish him for the presence
of U.S. forces in Iraq and to “terroriz[e] and intimidat[e]” other American soldiers Foley, 249 F.
Supp. 3d at 202.

The Court, accordingly, concludes that AAH tortured Fritz, Chism, Falter, and Al-Taie
within the meaning ofthe TVPA.

c. Extrajudicia| Ki||ing

The state-sponsored terrorism exception to the FSIA also looks to the TVPA to define
“extrajudicial killing.” 28 U.S.C. § 1605A(h)(7). Under the TVPA, “extrajudicial killing”
means

a deliberated killing not authorized by a previous judgment pronounced by a

regularly constituted court affording all the judicial guarantees which are

recognized as indispensable by civilized peoples Such term, however, does not
include any such killing that, under international law, is lawfully carried out under

the authority of a foreign nation.

TVPA § 3(a) (emphasis added). As the D.C. Circuit has explained, this definition “contains
three elements: (1) a killing; (2) that is deliberated; and (3) is not authorized by a previous
judgment pronounced by a regularly constituted court.” Owens, 864 F.3d at 770. Applying this
test, the Court concludes that Fritz, Chism, Falter, and Al-Taie were a‘ll victims of extrajudicial
killings

As an initial matter, these killings “[c]learly” were not authorized “by a prior judgment

affording judicial guarantees o[f'] due process.” Foley, 249 F. Supp. 3d at 202; see Owens, 864

50

F.3d at 770. Nor were they “lawfully carried out under the authority of a foreign nation.” TVPA
§ 3(a). Moreover, unlike the definition of“summary executions” under Common Article 3 ofthe
Geneva Conventions 6 U.S.T. 31 13, 75 U.S.T.S. 85, the state-sponsored terrorism exception to
the FSIA does not require direct participation of a state actor; it is sufficient that a state actor
provided material support for an extrajudicial killing committed by a nonstate actor. Owens, 864
F.3d at 770-78. The nonstate actor, however, must have acted “deliberately.” Han Kim, 774
F.3d at 1050-51.

As a result, the only element that requires additional analysis is the requirement that the
killings were “deliberated.” “A ‘deliberated’ killing is simply one undertaken with careful
consideration, not on a sudden impulse” Owens v. Republic of Sudan, 174 F. Supp. 3d 242, 263
(D.D.C. 2016) (citing Webster’s Third New International Dictionary 596 (1993); 4 The Oxford
English Dictionary 414 (2d ed. 1989); Black’s Law Dictionary 492 (9th ed. 2009)), ajj”d, 864
F.3d 751 (D.C. Cir. 2017). The evidence Plaintiffs offered at the hearing satisfies this
requirement The autopsy reports on the four soldiers abducted and killed in the Karbala attack
show that they sustained execution-style wounds They were shot at a close range; they were
handcuffed at the time they received their final, life-ending wounds; and it appears that their
assailants moved the victims’ body armor to inflict the deadly wounds See Dkt. 53 at 211-12
(Mallak). The militants moreover, had every interest in fleeing, but they took the time to kill the
servicemen-none of whom posed any danger to the assailants_before doing so.

The evidence also supports the conclusion that Al-Taie was executed According to the

- declaration, Laith Khazali admitted that AAH “had executed the Iraqi-American U.S.

eeldler”_- EX- 76 l_)- _
_ “ell efehe ethel heeeegee had been

51

killed either while trying to escape, or that they were” killed when their AAH captors mistakenly
believed that the house at which the hostages were being held was the target ofa raid by the U.S.
military. Id. Because Al-Taie’s autopsy showed that he was shot through the neck from the
front, the evidence supports the conclusion that he was shot while in custody, and not while
trying to escape The fact that his captors mistakenly believed that the U.S. military was on the
verge of rescuing Al-Taie does not diminish the evidence that they made a calculated decision to
brutally end his life

The Court, accordingly, concludes that Fritz, Chism, Falter, and Al-Taie were all victims
of extrajudicial killings within the meaning ofthe TVPA.

2. Iran ’s Provision of Material Support for Asaib Ahl al-Haq ’s Acis of Hosiage
Taking, Torture, and Extrajudicial Killing

The Court further concludes that Iran provided AAH with material support for the acts
described above The FSIA’s definition of “material support or resources” is borrowed from 18
U.S.C. § 2339A, which defines “material support or resources” in relevant part as:

any property, tangible or intangible, or service, including currency or monetary

instruments or financial securities financial services lodging, training, expert

advice or assistance, safehouses, false documentation or identification,

communications equipment, facilities weapons lethal substances explosives
personnel . . . , and transportation, except medicine or religious materials

18 U.S.C. § 2339A(b)(1). The evidence set forth above demonstrates that Iran helped AAH
attack coalition forces and kidnap U.S. soldiers See generally supra Part II.A.3. Plaintiffs
offered evidence that Iran provided support to AAH and other Iraqi Shia militias as part of a
“deliberate policy to inflict casualties on U.S. forces”_a_policy that was “approved by the
[S]upreme [L]eader” of Iran and that was “executed very covertly . . . by the Q[u]ds [F]orce.”
Dkt. 52 at 14 (Casey); see also Ex. 65 at 39; Ex. 66 at 25_29. The evidence also showed that,

pursuant to this policy, Iran provided weapons financial support, training, and “expert advice

52

[and] assistance” to AAH. 18 U.S.C. § 2339A(b)(l); see Dkt. 53 at 41 (Gartenstein-Ross); Ex.
15 at 4.

Even more to the point, Plaintiffs offered compelling evidence that Iran provided material
support for the specific acts of hostage taking, torture, and extrajudicial killing at issue in this
case With respect to the Karbala attack, Qais Khazali and Daqduq confessed that “senior
leadership within the Q[u]ds Force knew of,” “support[ed]” and “direct[ed]” the operation. Ex. l
at 3-4. Daqduq, moreover, acknowledged that “the lraqi [S]pecial [G]roups could not have
conducted th[e] complex operation without the support and direction of the Q[u]ds Force.” Id. at
3. The sophistication, knowledge training, and skill exhibited in the attack, moreover,
corroborates these statements See supra Part II.B.l. ln short, for the reasons explained above,
the Court concludes that AAH could not have conducted the attack without the assistance of Iran.
That assistance permitted AAH to take Fritz, Chism, and Falter hostage; to torture them; and to
execute them.

A similar conclusion follows with respect to AAH’s hostage taking, torture, and
execution of Al-Taie. See supra Part II.C.3. Iran taught members of AAH how to kidnap U.S.
soldiers and how to keep them hidden from coalition forces See, e.g., Dkt. 53 at 170
(Gartenstein-Ross). The evidence also showed that Iran provided AAH with intelligence and the
use of its ratlines which prevented U.S. forces from rescuing Al-Taie See id. at 138-42
(Gartenstein-Ross). In addition, as Plaintiffs’ experts testified, Iran provided AAH with
significant, and perhaps complete, financial support, see id at 166-71 (Gartenstein-Ross), and
that Iranian financial support was essential to the group’s ability to detain Al-Taie for an
extended period of time Id. at 169-70 (Gartenstein-Ross). Accepting that testimony, Iran

clearly provided “material support” for the acts at issue in this case But, even without

53

establishing such a direct nexus Plaintiffs’ proofwould suffice Because money is of course,
fungible and because “terrorist organizations can hardly be counted on to keep careful
bookkeeping records,” it is sufficient for Plaintiffs to have shown_as they have_that Iran
provided AAH with substantial financial assistance, regardless of whether they have also shown
that any payments were provided “directly for the specific act[s]” of hostage taking, torture, and
extrajudicial killing at issue in this case. Kilburn, 376 F.3d at 1130.

Finally, the evidence showed that this material support was provided at the direction of
Iranian officials or agents acting within the scope oftheir “office, employment, or agency.” 28
U.S.C. § 1605A(a)(1). As described in the Court’s findings of fact, Iran’s Quds Force was
responsible for cultivating proxies in other countries and did so with both the Lebanese
Hezbollah and AAH. See supra Part II.A. The Quds Force is part ofthe IRGC, which is, in turn,
an arm of the Islamic Republic of Iran. Those findings are sufficient to satisfy the scope of
office requirement.

3. Causation

The only remaining requirement for finding a waiver of sovereign immunity under
§ 1605A is a showing that the injuries and deaths at issue were “caused by” Iran’s provision of
material support to AAH, 28 U.S.C. § 1605A(a)(1). The D.C. Circuit has held that this statutory
language, like the similar language that appeared in 28 U.S.C. § 1605(a)(7) (repealed), “requires
a causal connection” as ajurisdictional prerequisite to suit. Kilburn, 376 F.3d at 1 127; see also
Owens, 864 F.3d at 794-99. An FSIA plaintiff, accordingly, need not show that the defendant
state “specifically knew of or intended its support to cause” a particular terrorist act, Owens, 864
F.3d at 798, or that the defendants’ material support was a “but for” cause of the victim’s injury

or death. Kilburn, 376 F.3d at 1 128. Rather, the statute “require[s] only a showing of

54

‘proximate cause.”’ Id.; see also Owens v. BNP Paribas, S.A., No. 17-CV-7037, 2018 Wb
3595950, at *5 (D.C. Cir. July 27, 2018) (explaining that the Anti-Terrorism Act’s “‘by reason
of language demands a showing of proximate causation”).

Under long-established law, proximate cause requires “some reasonable connection
between the actor omission of the defendant and the damage which the plaintiff has suffered.”
Kilburn, 376 F.3d at 1 128 (quoting Prosser & Keeton on the Law ofTorts 263 (5th ed. 1984));
see also Owens, 864 F.3d at 794 (quoting same). The proximate cause inquiry “contains two
similar but distinct elements.” Id First, Plaintiffs must show that lran’s provision of support to
AAH was “a ‘substantial factor’ in the sequence of events that led to the” injuries and deaths of
the four soldiers Id. (quoting Rothstein v. UBS, 708 F.3d 82, 91 (2d Cir. 2013)). Second,
Plaintiffs must establish that the injuries or deaths of the soldiers were “‘reasonably foreseeable
or anticipated as a natural consequence’ of [Iran’s] conduct.” Id. (quoting Rothstein, 708 F.3d at
91).

The facts of this case easily satisfy this standard The support that Iran provided to AAH
was not only a “substantial factor” in the chain of events that culminated in the injuries and
deaths of Fritz, Chism, Falter, and Al-Taie, it was a necessary ingredient. The evidence showed
that, without Iran’s support, AAH could not have successfully executed the PJCC attack, see
supra Part 11.B.3.b, and could not have successfully kept Al-Taie captive, see supra Part II.C.3.
Likewise, the Court has no doubt that Plaintiffs’ injuries were “reasonably foreseeable or
anticipated as a natural consequence” of Iran’s support to AAH. Even if Iran did not intend that
the victims sustain the specific injuries at issue, the events that led to those injuries were a

“reasonably foreseeable” consequence of Iran’s actions

55

In assessing reasonable foreseeability, moreover, the Court must consider “the broader
context” of Iran’s conduct. Owens, 864 F.3d at 797. In this respect, the evidence showed that
Iran established a relationship with AAH as part ofa comprehensive campaign to deter the U.S.
from maintaining a presence in the Middle East by terrorizing and intimidating coalition forces
Ex. 65 at 18; Ex. 66 at 22-23. Iran actively supported AAH by providing funding, weapons
training, and intelligence, and it knew_and intended_that AAH would carry out attacks on
coalition forces See supra Part II.A.3; see also Ex. 66 at 55. That support included training on
kidnapping and eluding U.S. and coalition forces See Ex. 66 at 35. And, although specific
intent is not required to establish causation, Owens, 864 F.3d at 798, the evidence shows that Iran
helped plan the abductions of the soldiers from the Karbala PJCC. The fact that the soldiers
were also tortured and killed was by any reasonable measure, a foreseeable consequence of
Iran’s support. Ex. 1 at 3-4 (“[S]enior leadership within the Q[u]ds Force knew of,”
“support[ed]” and “direct[ed]” the attack); id. at 3 (“[T]he lraqi [S]pecial [G]roups could not
have conducted th[e] complex operation without the support and direction of the Q[u]ds
Force”); see Owens, 864 F.3d at 795 (noting that the Sudan’s “own actions . . . gave it

knowledge of al Qaeda’s capabilities and aims”).

»i< >i< >i<
The Court, accordingly, concludes that the Islamic Republic of Iran and the IRGC are not
entitled to foreign sovereign immunity, and the Court possesses subject matter jurisdiction over

Plaintiffs’ ciaims.“‘ see 28 U.sc. §§ 1330(a), 1605A(a)(1).

 

14 The fact that most of the Plaintiffs in this case are “third-party claimant[s]” rather than “the
legal representative[s] of [the] victim[s] [who were] physically injured” does not divest this
Court of subject matterjurisdiction. Owens, 864 F.3d at 807. “Who in particular may bring a
claim against a foreign sovereign is a question of substantive law, wholly separate from the
question of [federal courts’] jurisdiction.” Id.

56

4. F ederal Cause of Action

Having concluded that the Court possesses subject matterjurisdiction, little else is
required to show that Plaintiffs are entitled to relief under the federal cause of action the
Congress enacted as part of the National Defense Authorization Act. See Pub. L. No. 1 10-181, §
1083, 122 Stat. 33 8-44 (2008) (codified at 28 U.S.C. § 1605A(c)). Although the federal cause of
action was added to the FSIA in 2008, “§ 1605A(c) operates retroactively” and “plainly
applies . . . to the pre-enactment conduct ofa foreign nation.” Owens, 864 F.3d at 815. There is
almost total “overlap between the elements of [§ 1605A(c)’s] cause of action and the terrorism
exception to foreign sovereign immunity,” Foley v. Syrian Arab Republic, 249 F. Supp. 3d 186,
205 (D.D.C. 2017), and a plaintiffthat offers proof sufficient to establish a waiver of foreign
sovereign immunity under § 1605A(a) has also established entitlement to relief as a matter of
federal law_with one minor exception: a foreign state is only liable to “a national of the United
States,” “a member of the armed forces” “an employee [or contractor] of the [U.S.] Government
. . . acting within the scope of the employee’s employment,” or “the legal representative of ” any
such person. Id.

This one exception affects the claim of one of the plaintiffs in this case, Bashar Al-Taie,
the brother ofAhmed Al-Taie Although Ahmed Al-Taie was a U.S. national and a member of
the armed forces Bashar Al-Taie is neither. See Dkt. 38 at 8 n.9. For jurisdictional purposes
this fact is non-consequential, because the waiver of foreign sovereign immunity applies so long
as “the claimant or the victim was at the time ofthe” terrorist attack, a U.S. national, member of
the armed forces or government employee 28 U.S.C. § 1605A(a)(2)(A)(ii) (emphasis added).
The federal cause of action, however, is more restrictive and limits liability to those who are

themselves U.S. nationals members of the armed services or government employees 28 U.S.C.

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§ 1605(0). lfBashar Al-Taie had sued as the administrator ofAhmed Al-Taie’s estate, he would
have had a cause of action in that capacity. But that role has fallen to Kousay Al-Taie, Ahmed’s
father. Ex. 46 (Estate Documents of Ahmed Al-Taie). Accordingly, the Court concludes_as
Plaintiffs concede, see Dkt. 59-1 at 50_that Bashar Al-Taie’s federal law claim fails as a matter
of law. Subject to a showing that they suffer compensable losses however, the remaining
plaintiffs have, for the reasons described above, carried their burden on demonstrating that they
are entitled to relief under § 1605A(c).
B. Personal Jurisdiction
The Court also concludes that it has personal jurisdiction over both the Islamic Republic
of Iran and the IRGC, Under the FSIA, the Court has personal jurisdiction over a foreign state
“as to every claim for relief over which the [Court] ha[s] jurisdiction . . . where service has been
made under section 1608.” 28 U.S.C. § 1330(b). Thus “[i]n order to sue a foreign state or one
ofits political subdivisions a plaintiff must effect service in compliance with” 28 U.S.C. §
1608(a). Barot v. Embassy ofthe Republic onam., 785 F.3d 26, 27 (D.C. Cir. 2015).
Section 1608(a) “provides four methods of service in descending order of preference:”
(1) by delivery of a copy of the summons and complaint in accordance with any
special arrangement for service between the plaintiff and the foreign state
or political subdivision; or
(2) if no special arrangement exists by delivery of a copy of the summons and
complaint in accordance with an applicable international convention on
service of judicial documents; or
(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of
the summons and complaint and a notice of suit, together with a translation
of each into the official language of the foreign state, by any form of mail
requiring a signed receipt, to be addressed and dispatched by the clerk of

the court to the head of the ministry of foreign affairs of the foreign state
concerned, or

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(4) if service cannot be made within 30 days under paragraph (3), by sending
two copies ofthe summons and complaint and a notice of suit, together with
a translation of each into the official language of the foreign state, by any
form of mail requiring a signed receipt, to be addressed and dispatched by
the clerk of the court to the Secretary of State in Washington, District of
Columbia, to the attention of the Director of Special Consular Services--and
the Secretary shall transmit one copy of the papers through diplomatic
channels to the foreign state and shall send to the clerk of the court a
certified copy of the diplomatic note indicating when the papers were
transmitted

28 U.S.C. § 1608(a).

The first two mechanisms of effecting service_by delivery of the summons and
complaint either “in accordance with any special arrangement for service between the plaintiff
and the foreign state” under § 1608(a)(1) or “in accordance with an applicable international
convention on service of judicial documents” under § 1608(a)(2)_were not available to
Plaintiffs in this case See Dkt. 18 at l. No “special arrangement” governs service between
Plaintiffs and Iran, and “Iran is not party to an international convention on service of judicial
documents.” Ben-Rafael v. Islamic Republic oflran, 540 F. Supp. 2d 39, 52 (D.D.C. 2008)
(internal citations omitted).

As a result, Plaintiffs attempted service under the third alternative, which requires service
by mail from the clerk of the court to the head of the ministry of foreign affairs of the foreign
state 28 U.S.C. § 1608(a)(3). On November 30, 2015, Plaintiffs initiated service as to both
Defendants under § 1608(a)(3). Dkt. 10. The clerk of court, accordingly, mailed the relevant
documents to Iran on December 2, 2015. Dkt. 12. On February 9, 2016, Plaintiffs notified the
Court that Iran had refused service Dkt. 13.

Finally, Plaintiffs served Defendants under § 1608(a)(4). That provision requires service
by mail from the clerk of court to the Secretary of State, who must then transmit the required

material through diplomatic channels to the foreign state 28 U.S.C. § l608(a)(4). The

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Department of State must then send “the clerk ofthe court a certified copy of the diplomatic note
indicating when the papers were transmitted.” Id. Plaintiffs provided the clerk with the relevant
documents and requested service pursuant to § l608(a)(4) on February 9, 2016. Dkt. 14. The
clerk mailed these materials to the State Department the next day. Dkt. 16. On March 8, 2017,
the State Department notified the clerk that the documents had been delivered to the Islamic
Republic of Iran. Dkt. 19. As the Department explained, “[b]ecause the United States does not
maintain diplomatic relations with the government of lran,” the documents were transmitted to
the Embassy of Switzerland in Iran, which then transmitted the materials to the Iranian Ministry
of Foreign Affairs on January 31, 2017. Ia'. at 1, 4. The Swiss Embassy reported that the Iranian
Ministry of Foreign Affairs “refused” to accept the documents that same day. Id. at 4. After the
Islamic Republic of Iran failed to respond, the clerk entered a default. Dkt. 23.

As for the IRGC, Plaintiffs noted in a status report that the diplomatic note from the
Swiss Embassy referred to the Iranian Ministry of Information and Security, rather than the
IRGC, due to “a possible clerical error” but that the underlying service materials “properly
identifie[d] the IRGC as the second Defendant.” Dkt. 20 at 2-3. In an abundance of caution, on
September 12, 2017, Plaintiffs reinitiated service on the IRGC under § 1608(a)(4). Dkt. 25. The
clerk transmitted the materials to the State Department on September 15. Dkt. 27. On January
24, 2018, the Department notified the clerk that the documents had been delivered to Iran via the
Swiss Embassy on December 10, 2017, and, once again, the Iranian Ministry of Foreign Affairs
refused to accept service the same day. Dkt. 30 at 1, 4. The IRGC failed to respond On March

27, 2018, the clerk entered a default as to the IRGC. Dkt. 39.

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Because Plaintiffs accomplished service under 28 U.S.C. § 1608(a)(4) on Defendants the
Islamic Republic of Iran and the IRGC, the Court possesses personal jurisdiction over both
Defendants See 28 U.S.C. § 1330(b).

C. Liability for State Law Claims

In addition to suing under federal law, Plaintiffs assert several state law claims As to

most ofthe plaintiffs these claims are redundant oftheir federal law claims and do not provide
any additional right to recover. As noted above, however, Bashar Al-Taie is not entitled to
recover under federal law. The fact that he is neither a U.S. national nor a member ofthe U.S.
armed forces does not, however, foreclose him from seeking to recover under state tort law.
See Owens, 864 F.3d at 809. Historically, the state-sponsored terrorism exception to the FSIA
was not understood to create a federal cause of action against foreign states (as opposed to state
officials) but, rather, to operate merely as a “pass-through” for state law claims Owens, 864
F.3d at 764; see also Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir.
2004). When Congress amended the law to provide a federal cause of action, see National
Defense Authorization Act for Fiscal Year 2008 § 1083, it did not upset the prior law permitting
plaintiffs to assert state law claims after clearing the hurdle of foreign sovereign immunity, see
Owens, 864 F.3d at 807-09. Although most plaintiffs proceeding under the state-sponsored
terrorism exception to the FSIA need not rely on state tort law, the “pass-through approach
remains” a “viable” option for those who are unable to invoke the federal cause of action, such as
“foreign family members” like Bashar Al-Taie. Id. at 809.

1. Choice ofLaw

In the absence of a federal cause of action, the Court must first consider what law applies

Because “[t]he FSlA does not contain an express choice-of-law provision,” the Court must apply

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the choice oflaw rules ofthe forum state Oveissi v. Islamic Republic oflran, 573 F.3d 835, 841
(D.C. Cir. 2009). The Court will, accordingly, apply District of Columbia choice of law
principles

The District of Columbia uses a choice-of-law rule that “blend[s] a ‘governmental
interest analysis’ with a ‘most significant relationship’ test.” Id. at 842 (quoting Hercules & Co.,
Ltd. v. Shama Rest. Corp., 566 A.2d 31, 40-41 & n.18 (D.C. 1989)). Under the governmental
interest analysis the Court “must evaluate the governmental policies underlying the applicable
laws and determine which jurisdiction’s policy would be most advanced by having its law
applied to the facts of the case under review.” Id. (quoting Hercules & Co). And, under the
“most significant relationship test,” the Court must consider the following four factors taken
from the Restatement (Second) of Conflict of Laws: (1) “the place where the injury occurred”;
(2) “the place where the conduct causing the injury occurred”; (3) “the domicil[e], residence,
national ity, place ofincorporation and place of business of the parties”; and (4) “the place where
the relationship, if any, between the parties is centered.” Id. (quoting Restatement (Second) of
Conflict of Laws § 145(2) (1971)). Section 145 of the Restatement “also references the factors
in Section 6 of the Restatement, which include the needs of the interstate and the international
systems the relevant policies of the forum, the relevant policies of other interested states
certainty, predictability and uniformity of result, and ease in the determination and application of
the law to be applied.” Dammarell v. Islamic Republic oflran, No. CIV.A. 01-2224JDB, 2005
WL 756090 at *18 (D.D.C. Mar. 29, 2005) (citing Restatement (Second) of Conflict of Laws §
145 (1971)); see also Owens v. Republic ofSudan, 826 F. Supp. 2d 128, 154 (D.D.C. 2011), ajj"d

in part and vacated in part on other grounds 864 F.3d 751 (D.C. Cir. 2017).

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Here, there are three potential sources of law that might govern Bashar Al-Taie’s claims:
the law ofthe forum state (the District of Columbia), the law of Bashar Al-Taie’s domicile
(Canada), or the law ofthe place of Ahmed Al-Taie’s abduction, torture, and murder (Iraq).
Plaintiffs contend that D.C. law should govern Bashar Al-Taie’s claims and the Court agrees

This case does not raise a conflict between various domestic jurisdictions; rather, the
Court must decide whether to apply D.C. law or the law of one oftwo foreign jurisdictions_
Canada and Iraq. The sole nexus to Canada is that Bashar Al-Taie happens to live there The
nexus to lraq, in contrast, is stronger because that is where Ahmed Al-Taie served, and it is
where he was captured, tortured, and killed He was however, a U.S. citizen and member of the
U.S. armed forces Ex. 70 at 1 (Certificate of Death (Overseas) for Ahmed Al-Taie, Feb. 29,
2012), and, most importantly, he was targeted by AAH because he was a U.S. citizen and soldier.

In dicta bearing directly on the question presented here, the D.C. Circuit observed as
follows in Oveissi v. Islamic Republic of lran: “We have no doubt that the United States has a
strong interest in applying its domestic law to terrorist attacks on its nationals especially when,
as was the case in Dammarell [v. Islamic Republic oflran], the attacks are ‘by reason of their
nationality.”’ 573 F.3d at 843. In Dammarell, in turn, the district court “applied the law ofthe
American plaintiffs’ state of domicile_rather than that of Lebanon_to a suit brought by
American victims ofthe 1983 bombing ofthe United States Embassy in Beirut.” Id. As the
district court explained in Dammarell and the D.C. Circuit repeated in Oveissi, “the injuries in
that case were ‘the result of a state-sponsored terrorist attack on a United States embassy and
diplomatic personnel[,] [and the] United States has a unique interest in its domestic law . . .
determining damages in a suit involving such an attack.” Id (quoting Dammarell, 2005 WL

756090 at *20). That principle, moreover, found support in the Restatement (Third) of Foreign

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Relations which recognizes a country’s “jurisdiction to prescribe law with respect to ‘certain
conduct outside its territory by persons not its national that is directed against the security of the
state or against a limited class of other interests,”” and notes that “this principle is ‘increasingly
accepted as applied to terrorist . . . attacks on a state’s nationals by reason of their

nationality . . .” Id. (quoting Restatement (Third) of Foreign Relations § 402(3) & 402 cmt. g)
(emphasis in Oveissi) (citation to Dammarell omitted).

Although expressing approval for this summary of the governing law, the D.C. Circuit
declined to apply domestic law in Oveissi. Because, in that case, the victim of the assassination
was not a U.S. national, there was no evidence that the assailants knew that the victim’s
grandchild_the plaintiff in Oveissi_-was a U.S. national, and there was no evidence that “the
United States or its nationals were in any other way the object of the attack.” Id at 374. The
evidence, to the contrary, showed that the assassination occurred in France and was intended “to
deter French intervention in Lebanon.” Id (emphasis omitted). ln short, “if any country was the
object of the attack, it was France” Id The Court of Appeals, therefore, concluded that French
law should govern.

Although not identical, the present case is closer to Dammarell than to Oveissi. lt is
moreover, on all fours with Owens v. Republic of Sudan, where the district court applied the
principles discussed above and held that D.C. law, rather than the law of the places of the tort
(Kenya and Tanzania) or the place of the domicile of each plaintiff (including both U.S. and
foreign locations), was appropriate 826 F. Supp. 2d at 154. There, the court emphasized the
“unique interest” of the United States in applying domestic law in terrorism cases and it stressed
the interest in applying the law of “the seat of the federal government” in a case involving an

overseas attack on the United States Id at 155-56. The Court concludes that the same

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considerations apply here and that D.C. law, rather than Canadian or Iraqi law, should govern.
See Owens, 864 F.3d at 809 (noting that “[t]he district court held that District ofColumbia law
control[led]” the plaintiffs’ state law claims); id. at 809-12 (discussing the application of D.C.
law to plaintiffs’ claims for intentional infliction of emotional distress).

2. Liability

Having concluded that D.C. law applies however, the Court concludes that Plaintiffs
have yet to establish that Bashar Al-Taie is entitled 'to recover under that body of |aw. The
amended complaint asserts four state law claims on behalf of Bashar Al-Taie: (1) wrongful
death, (2) intentional infliction of emotional distress (3) conspiracy, and (4) aiding and abetting
Dkt. 9 (Am. Compl. 1111 80-84, 105-10, 116-21, 122-27). But Plaintiffs offer no analysis of
whether and how the elements of these claims might be satisfied here, and Bashar Al-Taie’s right
to recover under D.C. for his brother’s death is far from clear. The D.C. wrongful death statute,
for example, permits “the spouse or domestic partner and the next of kin of the deceased person”
to recover, but it makes no reference to a sibling’s right to recover. See D.C. Code § 16-2701(b).
If some other authority exists that permits a sibling to recover for wrongful death under D.C.
law, Plaintiffs have not directed the Court’s attention to it. Nor have they pointed to any
authority that recognizes an “independent tort action for civil conspiracy in the District of
Columbia,” Wiggins v. Phillip Morris, Inc., 853 F. Supp. 470, 483 (D.D.C. 1994); Cockrum v.
DonaldJ. Trumpfor President, Inc., No. CV 17-1370 (ESH), 2018 WL 3250445 * 10 (D.D.C.
July 3, 2018) (quoting Wiggins), or an independent action for “aiding and abetting,” which is
typically treated as a form of “secondary liability,” see Central Bank of Denver, NA v. First

Interstate Bank ofDenver, NA, 51 1 U.S. 164, 184 (1994).

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On seemingly stronger footing, Bashar Al-Taie also asserts a claim for intentional
infliction of emotional distress But, as the D.C. Circuit recognized in Owens v. Republic of
Sudan, the D.C. courts have yet to decide whether “D.C. tort law requires a plaintiff to be present
at the scene of a defendant’s outrageous and extreme conduct in order to recover for” intentional
infliction of emotional distress 864 F.3d at 809-10. In light ofthis uncertainty, and given the
importance ofthe question, the Owens court certified the following question to the D.C. Court of

Appeals:

Must a claimant alleging emotional distress arising from a terrorist attack that killed

or injured a family member have been present at the scene of the attack in order to

state a claim for intentional infliction of emotional distress?
Id. at 812. Until the D.C. Court of Appeals answers that question, it would be premature for this
Court to determine whether Bashar Al-Taie_or any other plaintiff suing as a family member in
this case_is entitled to recover under D.C. law for intentional infliction of emotional distress

The Court will, accordingly, deny Bashar Al-Taie’s motion for entry of a default

judgment without prejudice

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CONCLUSION

As discussed in the Court’s prior order, Dkt. 86, Plaintiffs’ motion for defaultjudgment,
Dkt. 64, is GRANTED in part and DENIED in part. The Court GRANTS default judgments
against Defendants the Islamic Republic of Iran and the Islamic Revolutionary Guard Corps with
respect to liability on the claims brought by the estates of each of the four direct victims and the
U.S. national Plaintiffs under 28 U.S.C. § 1605A(c), subject to each showing the required
familial relationship, The Court DENIES Plaintiff Bashar Al-Taie’s motion for a default
judgment with respect to his federal law claim and DENIES without prejudice his motion for a
default judgment with respect to his state law claim. The Court has entered a separate order
regarding the appointment of a special master to hear the damages claims of the estates of the
four direct victims and the U.S. national plaintiffs and to report to the Court regarding the

appropriate award See Dkt. 87.

lsi Randolph D. MOSS
RANDOLPH D. MOSS

United States District Judge

Date: August 2, 2018

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