Frost v. Islamic Republic of Iran ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TAMMIE FROST et al.,
Plaintiffs,
v. Civil Action No. 17-603 (TJK)
ISLAMIC REPUBLIC OF IRAN et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
In January 2016, Waiel El-Maadawy, Amr Mohamed, and Russell Frost—U.S. citizens
serving as private defense contractors in Baghdad, Iraq—were kidnapped and detained for a
month by the militant group Saraya al-Salam. That group was controlled by Muqtada al-Sadr, an
Iraqi insurgent, politician, and cleric, and supported by Iran. El-Maadawy, Mohamed, and Frost
sued Iran for its material support for their kidnapping under the terrorism exception to the
Foreign Sovereign Immunities Act. After proper service and an entry of default, they moved for
default judgment against Iran. For the reasons explained below, the Court will grant Plaintiffs’
Motions for Default Judgment (ECF Nos. 27, 32).
Legal Background
The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq., provides a
general grant of immunity to foreign governments in U.S. courts, id. § 1604. The FSIA also
includes many exceptions to that immunity. See id. §§ 1605, 1605A. The state-sponsored
terrorism exception, id. § 1605A, “create[s] a judicial forum for compensating the victims of
terrorism, and in so doing [may] punish foreign states who have committed or sponsored such
acts and deter them from doing so in the future.” Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 88–89 (D.C. Cir. 2002). This exception furnishes federal courts with
subject-matter jurisdiction to hear plaintiffs’ claims and provides plaintiffs a cause of action. See
28 U.S.C. § 1605A(a)(1), (c).
Procedural Background
El-Maadawy, Mohamed, and Frost, along with several of their family members,
(collectively, “Plaintiffs”) filed this suit in April 2017. They brought three counts under 28
U.S.C. § 1605A(c) against the Islamic Republic of Iran—one for the torture and hostage-taking
of each of the three victims. 1 ECF No. 1 at 22–25. That June, pursuant to 28 U.S.C.
§ 1608(a)(3), the Clerk of the Court mailed a copy of the summons and complaint, along with a
translation of each, to the head of Iran’s foreign ministry through an international courier. ECF
No. 10. The next month, pursuant to 28 U.S.C. § 1608(a)(4), the Clerk sent the same materials
to the State Department to effectuate diplomatic service. ECF No. 12. In October of that year,
Iran was served through diplomatic note. ECF No. 13.
Iran never responded to the complaint. In January 2018, at Plaintiffs’ request, the Clerk
of the Court entered default against Iran. ECF Nos. 14, 15. Plaintiffs filed an amended
complaint the next month, containing the same substantive claims as their original one. 2 ECF
No. 17. In June 2018, all Plaintiffs except for Brenda Mohamed, Drew Rowe, Lori Wendel, and
1
Plaintiffs also sued, and later dismissed, al-Sadr as an individual defendant. ECF No. 47.
2
Because Plaintiffs amended their complaint after service was complete, the Court ordered them
to address whether they were required to re-serve Iran with their amended complaint. See July
25, 2018 Minute Order. The Court is satisfied that Plaintiffs did not need to re-serve Iran with
the amended complaint because their amendments were not substantial and Iran was on notice of
the allegations against it. See ECF No. 30 at 2–3; see also Blais v. Islamic Republic of Iran, 459
F. Supp. 2d 40, 46 (D.D.C. 2006) (“Even were these changes characterized as substantive, [the
defendants] had fair notice of the allegations and relief sought, because the changes to the third
amended complaint were not substantial. . . . Accordingly, this Court will not require plaintiff to
serve the amended complaint.” (citation omitted)).
2
Megan Martin moved for default judgment against Iran. ECF Nos. 27, 28. In August 2018, the
remaining Plaintiffs, represented by separate counsel, did the same. ECF No. 32.
In February 2019, the Court held a two-day evidentiary hearing on Plaintiffs’ motions for
default judgment. The Court received testimony from El-Maadawy, Mohamed, and Frost’s
widow, as well as two expert witnesses. The first, Stuart Bowen, served as Special Inspector
General for Iraq Reconstruction. The Court qualified him as an expert on the history of Shia
militias in Iraq, including al-Sadr’s role in those militias, and Iranian influence in Iraq. The
second, Michael Pregent, is a senior fellow at the Hudson Institute, as well as a former
intelligence officer and visiting fellow at the National Defense University. Pregent served in
Iraq as an embedded advisor to the Iraqi government and as an adjunct fellow and contributor to
the Chief of Staff of the U.S. Army’s Operation Iraqi Freedom Study Group, which researched
and wrote an operational history of the Army’s experience in Iraq from 2003 to 2011. The Court
qualified him as an expert on, among other things, Iranian influence in Iraq.
Findings of Fact
In FSIA cases, the Court may “accept as true the plaintiff’s uncontroverted evidence.”
Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 100 (D.D.C. 2000). Although the Federal
Rules of Evidence apply, “the Supreme Court has ‘recognize[d] very realistically’ that courts
have the authority—indeed, we think, the obligation—to ‘adjust [evidentiary requirements] to
. . . differing situations.’” Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044,
1048 (D.C. Cir. 2014) (alterations in original) (quoting Bundy v. Jackson, 641 F.2d 934, 951
(D.C. Cir. 1981)). “This lenient standard is particularly appropriate for a FSIA terrorism case,
for which firsthand evidence and eyewitness testimony is difficult or impossible to obtain from
3
an absent and likely hostile sovereign.” Owens v. Republic of Sudan, 864 F.3d 751, 785 (D.C.
Cir. 2017).
Based on the evidence received at the hearing, the Court finds that Iran provided funding,
weapons and training to Saraya al-Salam to advance its goals in Iraq, including through torture
and hostage-taking; Saraya al-Salam carried out the kidnapping and mistreatment of El-
Maadawy, Mohamed, and Frost; and it did so to increase Iran’s leverage over the imminent
implementation of the Joint Comprehensive Plan of Action (JCPOA), commonly known as the
Iran nuclear deal.
A. Iran’s Support for Shia Militias in Iraq, Including Saraya al-Salam
Since Iran’s revolution in 1979, it has operated the Islamic Revolutionary Guard Corps
(IRGC), a branch of its armed forces. 3 Rough Tr. Feb. 12 at 54–55 (Bowen); 4 see also Flanagan
v. Islamic Republic of Iran, 87 F. Supp. 3d 93, 104–05 (D.D.C. 2015). 5 Iran projects its
3
In 1984, the State Department designated Iran as a state sponsor of terrorism. See State
Sponsors of Terrorism, U.S. Dep’t of State, https://www.state.gov/state-sponsors-of-terrorism/
(last visited May 24, 2019).
4
Citations to the February hearing are to a rough draft of the transcript, since no final transcript
is yet available. Discrepancies may exist between page numbers in the rough draft and the final
transcript. The final transcript will be posted on the docket when available.
5
Courts may “judicially notice a fact that is not subject to reasonable dispute because it . . . can
be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). Under this Rule, the Court may take judicial notice of
evidence presented in prior FSIA proceedings. Rimkus v. Islamic Republic of Iran, 750
F. Supp. 2d 163, 172 (D.D.C. 2010). “Taking judicial notice of the facts, though, does not mean
automatically ‘accepting the truth of the earlier court’s findings and conclusions.’ Instead, courts
in this district rely on the evidence presented in the earlier litigation and make their own
independent findings of fact based on that evidence . . . .” Opati v. Republic of Sudan, 60
F. Supp. 3d 68, 73 (D.D.C. 2014) (citation omitted) (quoting Rimkus, 750 F. Supp. 2d at 172).
As noted throughout this opinion, the Court takes judicial notice of evidence reflected in findings
4
influence and advances its interests through one of the IRGC’s components, the Quds Force,
which supports militias beyond its borders. Rough Tr. Feb. 12 at 56 (Bowen). The Quds Force,
although it operates independently from the rest of the IRGC, is responsible to and directed by
the Supreme Leader of Iran. Id.; see also Flanagan, 87 F. Supp. 3d at 104–05 (“[The Quds
Force] reports directly to the Supreme Leader, rather than being subordinate to the IRGC
command structure.”).
Shia and Sunni Islam are the two major branches of that religion, both of which claim
followers in Iraq. Rough Tr. Feb. 12 at 58–59 (Bowen). Iran is mainly Shia, and because it aims
to promote Shia power and influence relative to other religious groups, the militias that the Quds
Force supports tend to be Shia as well. Rough Tr. Feb. 13 at 92 (Pregent); Flanagan, 87
F. Supp. 3d at 104. Over the years, one of the primary beneficiaries of Iran’s support has been
the Shia Lebanon-based terrorist organization Hezbollah. See Rough Tr. Feb. 12 at 63–64
(Bowen); see Elahi, 124 F. Supp. 2d at 101 n.5 (describing Hezbollah as Shia); see also Ben-
Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d 39, 44 (D.D.C. 2008) (“Iran played a pre-
eminent role in the creation of Hezbollah by providing political, material, and financial
assistance, including the funding of Hezbollah since the mid-1980’s.” (internal quotation marks
omitted)). Hezbollah acts mainly at the direction of Iran. Rough Tr. Feb. 12 at 63 (Bowen); see
also Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46, 51 (D.D.C. 2003) (“Hezbollah is
of fact in other cases in this Circuit about the flow of weapons, training, and money from Iran to
the terrorist group Hezbollah and to Shia militias in Iraq. Those cases include Fritz v. Islamic
Republic of Iran, 320 F. Supp. 3d 48 (D.D.C. 2018), Flanagan v. Islamic Republic of Iran, 87
F. Supp. 3d 93 (D.D.C. 2015), Ben-Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d 39, 44
(D.D.C. 2008), and Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46, 51 (D.D.C. 2003).
The Court relies on that evidence, along with related evidence received in this case, to make its
own independent findings of fact. See Opati, 60 F. Supp. 3d at 73.
5
largely under Iranian orders. It’s almost entirely acting . . . under the order of the Iranians and
being financed almost entirely by the Iranians.”). The Quds Force trains, equips, and finances
Shia militias in Iraq and throughout the Middle East both directly and through Hezbollah. Rough
Tr. Feb. 12 at 157–58 (El-Maadawy); Rough Tr. Feb. 13 at 73, 75, 89, 119–20 (Pregent); see
also Flanagan, 87 F. Supp. 3d at 105.
Al-Sadr is a prominent Shia insurgent, politician, and cleric in Iraq who has received
funding and other support from Iran since at least the early 2000s. Rough Tr. Feb. 12 at 71, 134–
35 (Bowen); see also Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48, 62 (D.D.C. 2018).
The Quds Force, directly and through Hezbollah, has provided him funding and military support,
which he has used to create and sustain various Shia militia groups. Rough Tr. Feb. 12 at 67, 77,
85 (Bowen). Throughout the U.S. presence in Iraq after 2003, those militias took different forms
and names, depending on Iran’s goals at the time. Id. at 91–92; Rough Tr. Feb. 13 at 117–18
(Pregent); see also Fritz, 320 F. Supp. 3d at 62.
Al-Sadr formed Saraya al-Salam to counter the influence of the Islamic State in Iraq and
the Levant (“ISIS”), a rising Sunni terrorist group. Rough Tr. Feb. 12 at 97–98 (Bowen). Saraya
al-Salam, like previous Sadrist Shia militias, received training, weapons, and money from Iran
through Hezbollah and the Quds Force to advance Iran’s interests in Iraq up through the time that
El-Maadawy, Mohamed, and Frost were kidnapped. Id. at 56–63; Rough Tr. Feb. 13 at 73, 75,
89, 115–20 (Pregent). And Iran-sponsored militias in Iraq routinely use these resources to
further Iran’s goals through kidnappings and violence. Fritz, 320 F. Supp. 3d at 62. Saraya al-
Salam made its headquarters in the Sadr City neighborhood of Baghdad and, at the time of the
kidnapping, it exerted exclusive control over that area. Rough Tr. Feb. 12 at 104 (Bowen).
6
B. Saraya al-Salam’s Kidnapping of El-Maadawy, Mohamed, and Frost
On January 15, 2016, El-Maadawy, Mohamed, and Frost were working in Baghdad as
military contractors, training Iraqi security forces. 6 Rough Tr. Feb. 12 at 148, 150 (El-
Maadawy). El-Maadawy and Mohamed spoke fluent Arabic, but Frost did not. Id. at 166–67.
In need of another translator for their team, the three men met a candidate in Baghdad, hired him,
and then agreed to join him at his apartment for tea. Id. at 171–74. Although El-Maadawy did
not realize it at the time, the apartment was in Sadr City. Id. at 175.
When El-Maadawy, Mohamed, and Frost tried to leave the translator’s apartment, they
found dozens of armed men waiting for them outside; one stepped forward to block their exit.
Id. at 178–79. The man received a call on his cell phone, which lit up to reveal a picture of al-
Sadr. Id. at 179. To El-Maadawy, this meant that the armed men were part of a Shia militia
rather than ISIS. As a result, he believed that surrendering was the group’s best chance to
survive. Id. at 183. To that end, El-Maadawy handed over his weapon and persuaded Mohamed
6
El-Maadawy, Mohamed, and Frost were U.S. citizens at that time, and their Plaintiff-family
members are all now U.S. citizens. Rough Tr. Feb. 12 at 142–43 (El-Maadawy); Rough Tr. Feb.
13 at 9 (Mohamed); Rough Tr. Feb. 13 at 7–8 (Frost); ECF No. 28-1, Declaration of Waiel El-
Maadawy, ¶ 4; ECF No. 28-3, Declaration of Amr Mohamed, ¶ 2; ECF No. 28-8, Declaration of
Tammie Frost, ¶ 3; ECF No. 28-8, Declaration of Amanda Frost, ¶ 3; ECF No. 28-8, Declaration
of Crystal Frost, ¶ 3; ECF No. 28-8, Declaration of M.F., ¶ 3; ECF No. 28-9, Declaration of
Zeinab El-Maadawy, ¶ 3; ECF No. 28-9, Declaration of Ihab El-Maadawy, ¶ 3; ECF No. 28-9,
Declaration of Mohammed El-Maadawy, ¶ 3; ECF No. 28-9, Declaration of Mustafa El-
Maadawy, ¶ 3; ECF No. 28-9, Declaration of Tamer El-Maadawy, ¶ 3; ECF No. 28-9,
Declaration of Latasha El-Maadawy, ¶ 3; ECF No. 28-9, Declaration of BilQis Aidara Adjei, ¶ 3;
ECF No. 32-2, Declaration of Brenda Mohamed, ¶ 3; ECF No. 32-3, Declaration of Lori
Wendel, ¶ 3; ECF No. 32-4, Declaration of Megan Martin, ¶ 3; ECF No. 32-5, Declaration of
Drew Rowe, ¶ 3. Latasha El-Maadawy is the mother of Plaintiffs A.G., M.E., and G.E., the latter
two of whom are her biological children with Waiel El-Maadawy. Although Latasha El-
Maadawy asserts only her own U.S. citizenship, the Court accepts this as satisfactory evidence
that her children are also U.S. citizens.
7
and Frost to do likewise. Id. at 182–83; Rough Tr. Feb. 13 at 22 (Mohamed). The armed men
then forced them into vans. Rough Tr. Feb. 12 at 183 (El-Maadawy).
El-Maadawy, Mohamed, and Frost were driven to a nearby building in Sadr City and
interrogated about who they were and what they were doing in Iraq. Id. at 185. There were
portraits of al-Sadr, as well as the flags of both Saraya al-Salam and Iran, on the walls. Rough
Tr. Feb. 13 at 23–24 (Mohamed); see also Rough Tr. Feb. 12 at 184 (El-Maadawy). The three of
them were then forced back into the vans and driven to another compound, also in Sadr City.
Rough Tr. Feb. 12 at 185 (El-Maadawy); Rough Tr. Feb. 13 at 25 (Mohamed). They were
blindfolded tightly, handcuffed around their wrists and ankles, and crammed into cells so small
they could not stand up or lie down. Rough Tr. Feb. 12 at 191–93 (El-Maadawy); Rough Tr.
Feb. 13 at 28 (Mohamed). El-Maadawy estimated that his cell was only about four feet high and
four feet wide. Rough Tr. Feb. 12 at 194–95 (El-Maadawy).
El-Maadawy, Mohamed, and Frost would remain in Saraya al-Salam’s captivity for the
next month. During the first week, El-Maadawy was kept naked and blindfolded, his hands and
feet bound behind his back. Id. at 195–196, 204. His captors sometimes allowed him to use the
bathroom. Id. at 195. One time, though, his shackles caused him to fall into the toilet, and his
captors forced him to lick feces from his hands. Id. at 196. After a week, his captors gave him
cardboard to sleep on, some clothes, and a blanket. Id. at 197. But they continued to keep his
shackles so tight that his hands and feet turned purple. Id. at 205. El-Maadawy was interrogated
several times every day, and he was beaten when his captors were dissatisfied with his answers.
Id. at 196. His captors often struck him with the butts of their rifles, kicked him, and punched
him. Id. at 199, 218–19. They tried to cut his fingers off with shears, but he resisted by balling
8
up his fist until they gave up. Id. at 199. They put him through mock executions by pressing an
unloaded gun against his head and pulling the trigger. Id. at 203–04. Twice, they used a car
battery to inflict electric shocks on him. Id. at 207–08. And at times, they held knives and
machetes against his throat, threatening to behead him and upload the video to the internet so his
children could see it. Id. at 204.
Mohamed was also stuffed into a tiny cell and provided cardboard on which to sleep.
Rough Tr. Feb. 13 at 29–30 (Mohamed). He was shackled and blindfolded during most of his
captivity. Id. at 32. Twice his captors hung him from the wall by his shackles—one time from
those binding his hands, and another time from those binding his feet. Id. at 35. Mohamed also
endured two mock executions in which his captors placed unloaded guns against his head and
pulled the trigger. Id. at 34. His captors beat him many times, including with a pipe. Id. at 40,
51. He shared a cell with Frost for part of their captivity, and their captors gave them both water
bottles filled with urine to drink. Id. at 37–39, 53. Mohamed heard Frost being beaten, too, and
often heard him groan with pain. Id. at 53, 60. Their captors bound Frost with flex cuffs cinched
so tightly around his hands and feet that his extremities turned blue. Id. at 54.
Throughout their captivity, El-Maadawy and Mohamed were interrogated about
American weapons, military strategy, and intentions toward Iraq and Iran. Rough Tr. Feb. 12 at
200–01, 206 (El-Maadawy); Rough Tr. Feb. 13 at 41 (Mohamed). Shortly before they were
released, their captors forced all three men to record a video in which they wore American
military-style uniforms, sat in front of Saraya al-Salam flags, thanked al-Sadr for their release
9
and warned the United States not to invade Iraq again. 7 Rough Tr. Feb. 12 at 201–03 (El-
Maadawy); Rough Tr. Feb. 13 at 42 (Mohamed).
On February 16, 2016, El-Maadawy, Mohamed, and Frost were removed from their cells
and driven to a meeting with Iraqi government officials. Rough Tr. Feb. 12 at 211–12 (El-
Maadawy). Then U.S. soldiers arrived and took them into custody. Id. at 213–14. They were
flown to a U.S. military base in Germany for medical treatment and debriefing, and after a week
or so, back to the United States.
All three men continued to suffer from pain, flashbacks, and other medical problems
because of their treatment in captivity. Rough Tr. Feb. 13 at 44–49 (Mohamed); see Rough Tr.
Feb. 12 at 218–20 (El-Maadawy). In November 2017, Frost passed away, still suffering from
injuries to his feet and other after-effects from his detention. Rough Tr. Feb. 13 at 50
(Mohamed).
7
Both El-Maadawy and Mohamed testified that during their interrogations, their captors told
them directly that they were members of Saraya al-Salam and that they had received training and
weapons from Iran. See Rough Tr. Feb. 12 at 201 (El-Maadawy); Rough Tr. Feb. 13 at 28
(Mohamed). The Court need not decide whether these statements are admissible under the
Federal Rules of Evidence for purposes of this proceeding. In light of the other evidence in the
record, the Court need not—and does not—rely on them for any purpose, including to conclude
that Saraya al-Salam kidnapped the three men. Plaintiffs offered ample other evidence of that.
The flags of both Saraya al-Salam and Iran were present in various buildings in which they were
held. Rough Tr. Feb. 12 at 184 (El-Maadawy); Rough Tr. Feb. 13 at 23–24 (Mohamed).
Pictures of al-Sadr were prominently displayed in those same buildings, and another photo of al-
Sadr appeared on the phone of one of their kidnappers. Rough Tr. Feb. 12 at 179, 184 (El-
Maadawy); Rough Tr. Feb. 13 at 24 (Mohamed). The men were forced to record a video
thanking al-Sadr for their impending release. Rough Tr. Feb. 12 at 201–03 (El-Maadawy);
Rough Tr. Feb. 13 at 42 (Mohamed). And Saraya al-Salam was the only group that exercised
control over Sadr City at the time. Rough Tr. Feb. 12 at 104 (Bowen); see also Rough Tr. Feb.
13 at 26 (Mohamed).
10
C. The Purpose Behind the Kidnapping
The JCPOA was an agreement between Iran, the United States, and other countries to lift
sanctions against Iran in exchange for limits on Iran’s nuclear program. Rough Tr. Feb. 12 at
115 (Bowen). The JCPOA’s implementation was a highly sensitive moment in the relationship
between Iran and the United States in which Iran was jockeying for leverage. Id. at 115, 123.
That implementation was scheduled within a day or so of Saraya al-Salam’s kidnapping of El-
Maadawy, Mohamed, and Frost. Id. at 130–31.
Both experts testified that in their opinion, Saraya al-Salam abducted El-Maadawy,
Mohamed, and Frost to further Iran’s objectives, and increase its political leverage, as the
JCPOA’s implementation drew near. The Court credits these opinions, which it found credible,
considered, and persuasive.
Bowen testified that the kidnapping was intended to increase Iran’s leverage over the
negotiation and subsequent implementation of the JCPOA. 8 Id. at 128–34. He based his opinion
on several factors. First, in his view, Iran and its proxies know that U.S. hostages are valuable
bargaining chips because the United States places a high value on recovering its citizens if they
are detained abroad. Id. at 131–32. Indeed, he noted, on the day the JCPOA was implemented,
Iran released five American hostages. Id. at 117, 128. Second, to Bowen, the timing was telling.
Id. at 134. The kidnapping of El-Maadawy, Mohamed, and Frost was the first abduction of U.S.
citizens in Iraq in five years, and it came within a day or so of the JCPOA’s implementation. Id.
8
The jockeying between Iran and other parties to the JCPOA did not end on the day it was
implemented. Rather, the agreement contemplated that disputes and compliance questions
would arise, such that Iran would have opportunities to use the leverage that Bowen described
well after that date. See Joint Comprehensive Plan of Action ¶¶ 36–37 (July 14, 2015), available
at https://2009-2017.state.gov/documents/organization/245317.pdf.
11
at 130–31. And just the week before, apparently in a similar effort, the IRGC had briefly
detained U.S. sailors whose boat had strayed into Iranian waters in the Persian Gulf. Id. at 128–
29. Third, Iran closely controls its proxies when it comes to their insurgent activities. In
Bowen’s view, a Shia militia in Iraq under the direction of al-Sadr would not have abducted an
American unless so directed by Iran. Id. at 135–36. And finally, Bowen relied on the U.S.
Intelligence Community’s Worldwide Threat Assessment presented by then-Director of National
Intelligence James Clapper to the Senate Armed Services Committee on February 9, 2016—
during the very time the three men were being held. ECF No. 49-1 at 1. At that time, the
Intelligence Community assessed that Iran might “use American citizens detained when entering
Iranian territories as bargaining pieces to achieve financial or political concessions in line with
their strategic intentions.” 9 Exhibit 34, James Clapper, Worldwide Threat Assessment of the
U.S. Intelligence Community, Statement for the Record before Senate Armed Services
Committee, at 24.
Pregent testified similarly. Rough Tr. Feb. 13 at 104–08 (Pregent). In his view, the
abduction of El-Maadawy, Mohamed, and Frost was motivated either by Iranian leverage-
seeking against the United States in connection with the JCPOA’s implementation, or by the
IRGC or Quds Force’s desire to compel the United States to withdraw from the agreement
9
During the hearing, Plaintiffs moved to admit Director Clapper’s testimony under the public
records exception to the rule against hearsay, and afterward, submitted an affidavit by Bowen in
support of their motion. See ECF No. 49. The Court need not resolve whether this testimony is
admissible under this or any other theory, though; it is recounted here solely because it helped
form the basis for Bowen’s expert opinion. See Owens, 864 F.3d at 789–90. Similarly, to the
extent that either expert relied on other potentially inadmissible evidence in reaching his opinion,
the Court refers to that evidence solely “in order to explain why it admitted and credited” the
opinion. Id. at 790.
12
entirely. Id. at 107–08, 114–15. He, like Bowen, also based his opinion on the timing and
boldness of the kidnapping and Iran’s careful advancement of its interests through Shia militias
in Iraq. Id. Pregent pointed out that the agreement had received a mixed reception in Iran, with
some elements within the Iranian government, including the IRGC and the Quds Force,
reportedly opposed to it. Id. at 104–05, 107–08. And, like Bowen, he noted that the IRGC had
taken several actions widely interpreted as at least potentially intended to undermine the JCPOA,
including briefly detaining the U.S. sailors the week before. Id. at 104–05.
Conclusions of Law
The plaintiff bears the burden of production to establish subject-matter jurisdiction in an
FSIA case. Owens, 864 F.3d at 784 “[I]f a plaintiff satisfies [her] burden of production and the
defendant fails to present any evidence in rebuttal, then jurisdiction attaches.” Id. Once the
plaintiff has met her jurisdictional burden, “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 evidence sufficient to substantiate the essential elements of her claim.” Fritz,
320 F. Supp. 3d at 76 (alteration in original) (quoting Owens, 864 F.3d at 785–86). Generally,
once a plaintiff has established that the court has subject-matter jurisdiction over her claims
under the FSIA terrorism exception, she has established the elements of liability as well. Id. at
87.
The FSIA permits entry of default judgment where plaintiffs prove jurisdiction and
liability “by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). “[T]he FSIA leaves it to
the court to determine precisely how much and what kinds of evidence the plaintiff must
provide.” Han Kim, 774 F.3d at 1047. “In a FSIA default proceeding, a district court can find
13
that the evidence presented is satisfactory ‘when the plaintiff shows “her claim has some factual
basis,” . . . even if she might not have prevailed in a contested proceeding.’” Warmbier v.
Democratic People’s Republic of Korea, 356 F. Supp. 3d 30, 43 (D.D.C. 2018) (quoting Owens,
864 F.3d at 785). This standard allows gaps in witnesses’ first-hand knowledge to be filled with
expert testimony about how a defendant government has acted in similar circumstances. See
Han Kim, 774 F.3d at 1049 (upholding finding that North Korea tortured plaintiff, who had been
sent to a forced labor camp, where only evidence was expert testimony that the government
routinely tortured those in such camps).
As described below, the Court holds that it has subject matter jurisdiction over Plaintiffs’
claims against Iran for its material support for Saraya al-Salam’s torture and hostage-taking; it
has personal jurisdiction over Iran; and Iran is liable for Plaintiffs’ claims.
A. Jurisdiction
1. Subject-Matter Jurisdiction
The FSIA terrorism exception provides federal courts with subject-matter jurisdiction
over cases “in which money damages are sought against a foreign state for personal injury or
death that was caused by” an enumerated terrorist act. 28 U.S.C. § 1605A(a)(1). As threshold
matters, however, the foreign state must have been “designated as a state sponsor of terrorism . . .
or [been] so designated as a result of such act,” id. § 1605A(a)(2)(A)(i)(I), and the “claimant or
victim” must be either a U.S. national, a member of the U.S. armed forces, or an employee of the
United States, performing on a contract awarded by the United States, see id.
§ 1605A(a)(2)(A)(ii)(I).
14
a. State Sponsorship of Terrorism
The State Department designated Iran as a state sponsor of terrorism on January 19, 1984,
and Iran has remained so designated since that time. See State Sponsors of Terrorism, U.S.
Dep’t of State, https://www.state.gov/state-sponsors-of-terrorism/ (last visited May 24, 2019).
As a result, this element is satisfied. See 28 U.S.C. § 1605A(a)(2)(A)(i)(I).
b. U.S. Citizenship
El-Maadawy and Mohamed testified that they were U.S. citizens at the time of their
capture, and Frost’s widow did the same for Frost. See Rough Tr. Feb. 12 at 142–43 (El-
Maadawy); Rough Tr. Feb. 13 at 9 (Mohamed); Rough Tr. Feb. 13 at 7–8 (Frost). A U.S. citizen
is a U.S. national for the purposes of the FSIA. 28 U.S.C. § 1605A(h)(5); 8 U.S.C.
§ 1101(a)(22). As a result, all three victims have the requisite connection to the United States.
See 28 U.S.C. § 1605A(a)(2)(A)(ii)(I).
c. Acts of Terrorism
The third element of subject-matter jurisdiction under the FSIA terrorism exception is
that the foreign government must have committed at least one terrorist act enumerated in the
statute, including “torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision
of material support or resources for such an act . . . .” Id. § 1605A(a)(1). Plaintiffs allege that
Iran provided material support for alleged acts of torture and hostage-taking by Saraya al-Salam.
The Court will address torture, hostage-taking, and material support in turn.
(i) Torture
In the FSIA context, the definition of “torture” is imported from the Torture Victim
Protection Act. Id. § 1605A(h)(7). Under that statute,
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(1) the term “torture” means any 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 only 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; and
(2) mental pain or suffering refers to prolonged mental harm caused by or resulting
from—
(A) the intentional infliction or threatened infliction of severe physical pain or
suffering;
(B) the administration or application, or threatened administration or application,
of mind altering substances or other procedures calculated to disrupt profoundly
the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another individual will imminently be subjected to death, severe
physical pain or suffering, or the administration or application of mind altering
substances or other procedures calculated to disrupt profoundly the senses or
personality.
Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992), codified at 28
U.S.C. § 1350 (note). The D.C. Circuit has clarified that the list of attendant purposes limits
torture to “suffering [imposed] cruelly and deliberately, rather than as the unforeseen or
unavoidable incident of some legitimate end.” Price, 294 F.3d at 93.
Courts in this Circuit have long held that repeated beatings, threats, unsanitary
conditions, and inadequate food and medical treatment in detention can meet this definition, both
because these conditions are sufficiently severe, and because they support an inference of
punishment for an illicit purpose. See Hekmati v. Islamic Republic of Iran, 278 F. Supp. 3d 145,
160–61 (D.D.C. 2017) (collecting cases). The D.C. Circuit has also held that torture includes
“sustained systematic beating, application of electric currents to sensitive parts of the body, and
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tying up or hanging in positions that cause extreme pain.” Price, 294 F.3d at 92–93 (quoting S.
Exec. Rep. No. 101-30, at 14 (1990)).
The Court has little trouble concluding that El-Maadawy, Mohamed, and Frost were
subjected to torture. As in Price, El-Maadawy and Mohamed testified to being beaten
repeatedly, Rough Tr. Feb. 12 at 199, 218–19 (El-Maadawy), Rough Tr. Feb. 13 at 40
(Mohamed); El-Maadawy testified to being shocked by electric currents, Rough Tr. Feb. 12 at
207–08 (El-Maadawy); and Mohamed testified to being hung by his shackles, Rough Tr. Feb. 13
at 35 (Mohamed). Both men were also held in cells so small they could not stand up or lie down,
Rough Tr. Feb. 12 at 195, 204 (El-Maadawy), Rough Tr. Feb. 13 at 29–30 (Mohamed); and
subjected to mock executions, Rough Tr. Feb. 12 at 203–04 (El-Maadawy), Rough Tr. Feb. 13 at
34 (Mohamed). El-Maadawy’s captors threatened to behead him and upload the video to the
internet so that his children could see it. Rough Tr. Feb. 12 at 204 (El-Maadawy). And this
treatment caused them severe pain and long-lasting injuries. Rough Tr. Feb. 13 at 44–49
(Mohamed); see Rough Tr. Feb. 12 at 218–20 (El-Maadawy). El-Maadawy and Mohamed also
testified about their captors’ treatment of Frost. Although Mohamed was blindfolded during
most of their captivity, he saw their captors force Frost to wear flex cuffs for extended periods
that were so tight they caused his extremities to turn blue. Rough Tr. Feb. 13 at 54 (Mohamed).
Mohamed also overheard Frost being beaten and groaning in pain. Id. at 53, 60. Frost, along
with Mohamed, was given water bottles of urine to drink. Id. at 37–39, 53.
For all these reasons, the Court finds that the cruelty and duration of the three men’s
abuse was intended only to punish and intimidate them. They were the victims of “severe pain
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and suffering” inflicted for no purpose attendant to a legitimate end, which qualifies their
treatment as torture.
(ii) Hostage-Taking
The FSIA’s definition of hostage-taking is imported from the International Convention
Against the Taking of Hostages. See 28 U.S.C. § 1605A(h)(2). That definition reads,
Any person who seizes or detains and threatens to kill, to injure or to continue to
detain another person . . . in order to compel a third party. . . to do or abstain from
doing any act as an explicit or implicit condition for the release of the hostage
commits the offence of taking of hostages . . . within the meaning of this
Convention.
International Convention Against the Taking of Hostages art. 1, U.N. GAOR, 34th Sess., Supp.
No. 46, at 245, U.N. Doc. A/34/46 (1979). Hostage-taking thus has two elements: the abduction
or detention, and the purpose behind it. Simpson v. Socialist People’s Libyan Arab Jamahiriya,
326 F.3d 230, 234–35 (D.C. Cir. 2003) (“The essential element of the hostage-taking claim is
that the intended purpose of the detention be to accomplish the sort of third-party compulsion
described in the [C]onvention.”). Even so, purported hostage-takers need not have
communicated their purpose to the third party whose behavior they intend to compel. Simpson v.
Socialist People’s Libyan Arab Jamahiriya, 470 F.3d 356, 360–61 (D.C. Cir. 2006).
Political leverage in the context of a country’s relationship with the United States is a
sufficiently coercive purpose to establish hostage-taking. See, e.g., Warmbier, 356 F. Supp. 3d at
51 (purpose of North Korea detaining an American man was to “gain leverage as North Korea
engaged in highly publicized nuclear and long-range missile tests and the United States
developed its North Korea sanctions policy”); Stansell v. Republic of Cuba, 217 F. Supp. 3d 320,
339 (D.D.C. 2016) (purpose of militant group detaining Americans was “to leverage concessions
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from the Colombian and United States governments” such as the release of all imprisoned
members of the group and creating a demilitarized zone).
Here, the Court finds that Saraya al-Salam kidnapped El-Maadawy, Mohamed, and Frost
for a coercive purpose. As discussed above, Bowen and Pregent offered credible expert opinions
that their kidnapping was timed to exert pressure on the United States right before the JCPOA’s
implementation, either to increase Iran’s leverage or to compel the United States to withdraw
from the agreement entirely. Their kidnapping thus qualifies as a hostage-taking.
(iii) Material Support
The FSIA terrorism exception derives its definition of material support from federal
criminal law:
the term “material support or resources” means 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 (1 or more individuals who may be or
include oneself), and transportation, except medicine or religious materials.
18 U.S.C. § 2339A(b)(1); 28 U.S.C. § 1605A(h)(3). And when an exception to the FSIA’s
sovereign immunity turns on a country’s material support for an act of terrorism, its “provision
of material support or resources [must have been] 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 Court determines that Iran provided material support for the torture and hostage-
taking of El-Maadawy, Mohamed, and Frost. Both experts testified at length about Iran’s pattern
of providing weapons, training, and funding to Shia militias run by al-Sadr, including Saraya al-
Salam, to advance its interests in Iraq through violence—and that those efforts were ongoing
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when El-Maadawy, Mohamed, and Frost were kidnapped. Rough Tr. Feb. 12 at 56–63 (Bowen);
Rough Tr. Feb. 13 at 73, 75, 89, 115–20 (Pregent). Moreover, Iran has a long-standing practice
of providing material support for the acts of torture and hostage-taking, undertaken by Shia
militias in Iraq under the direction of al-Sadr and the Quds Force. Fritz, 320 F. Supp. 3d at 62,
84 (finding that Iran had continued this practice by providing the militia at issue there with
weapons, training, intelligence, and money for torture and hostage-taking). Finally, because Iran
provided this support through the Quds Force, it was provided through Iranian officials or agents.
Id. at 85 (“The Quds Force is part of the IRGC, which is, in turn, an arm of the Islamic Republic
of Iran. Those findings are sufficient to satisfy the scope of office requirement.”).
d. Personal Injury
Under the FSIA’s terrorism exception, subject-matter jurisdiction and liability also
require that the damages sought are “for personal injury or death that was caused by” one of the
enumerated acts of terrorism, such as torture and hostage-taking. 28 U.S.C. § 1605A(a)(1). As
described above, El-Maadawy, Mohamed, and Frost were all injured during their captivity. And
in their amended complaint, Plaintiffs seek damages for the pain and suffering experienced by
each of the three victims and solatium for their family members. ECF No. 17. For these reasons,
Plaintiffs’ suit is for damages arising out of personal injury caused by torture and hostage-taking.
e. Causation
The final prerequisite for subject-matter jurisdiction and liability under the FSIA
terrorism exception is that the plaintiff’s personal injury must be “caused by” the defendant
government’s acts of terrorism. 28 U.S.C. § 1605A(a)(1); Kilburn v. Socialist People’s Libyan
Arab Jamahiriya, 376 F.3d 1123, 1127 (D.C. Cir. 2004) (“[C]ausation is indeed a jurisdictional
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requirement.”). The plaintiff need not show that the defendant’s material support was the but-for
cause of his injuries, only that it was a proximate cause. Kilburn, 376 F.3d at 1128–29. As the
Circuit further explained:
[T]he inquiry into proximate cause contains two similar but distinct elements. First,
the defendant’s actions must be a “substantial factor” in the sequence of events that
led to the plaintiff’s injury. Rothstein v. UBS, 708 F.3d 82, 91 (2d Cir. 2013).
Second, the plaintiff’s injury must have been “reasonably foreseeable or anticipated
as a natural consequence” of the defendant’s conduct. Id.
Owens, 864 F.3d at 794. Plaintiffs have provided sufficient evidence to satisfy both causation
elements. First, Iran’s material support for Saraya al-Salam was a substantial factor in the torture
and hostage-taking of El-Maadawy, Mohamed, and Frost. As their experts testified, Iran
provided Saraya al-Salam weapons and money through al-Sadr, and provided it training through
Hezbollah and the Quds Force. These resources were plainly a “substantial factor” in the
kidnapping, which began with a group of armed Saraya al-Salam members surrounding the
apartment in which the three men were meeting with the translator they had hired. Moreover,
Plaintiffs’ experts testified that, in their view, Saraya al- Salam would not have kidnapped
Americans without support for that tactic from Iran. Rough Tr. Feb. 12 at 135–36 (Bowen);
Rough Tr. Feb. 13 at 115 (Pregent).
Second, Plaintiffs’ injuries were a reasonably foreseeable consequence of Iran’s material
support. To evaluate this element, the Court looks to the “broader context” of Iran’s conduct.
Owens, 864 F.3d at 797; Fritz, 320 F. Supp. 3d at 86. Iran, through the Quds Force, has
provided training, weapons, and money to militant groups for decades for the express purpose of
advancing its interests through violence and terrorism. See also Fritz, 320 F. Supp. 3d at 86
(“Iran actively supported AAH by providing funding, weapons, training, and intelligence, and it
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knew—and intended—that AAH would carry out attacks on coalition forces.”). That Saraya al-
Salam did what Iran trained and equipped it to do, at a politically advantageous moment for Iran,
easily satisfies this element. Thus, both elements of proximate cause are met here, and Iran’s
material support for Saraya al-Salam bears the requisite causal connection to its torture and
hostage-taking of El-Maadawy, Mohamed, and Frost.
For all these reasons, Plaintiffs have met all the requirements set out in the FSIA state-
sponsored terrorism exception. The Court thus finds that Iran is not immune from suit for its
material support for the torture and hostage-taking of El-Maadawy, Frost, and Mohamed, and
that it has subject-matter jurisdiction over Plaintiffs’ claims.
2. Personal Jurisdiction
The Court is also satisfied that it has personal jurisdiction over Iran. Personal jurisdiction
over a foreign government depends on (1) subject-matter jurisdiction under the FSIA, and (2)
proper service under the FSIA. 28 U.S.C. § 1330(b). Having determined that it has subject-
matter jurisdiction under the FSIA terrorism exception, the Court will examine whether Plaintiffs
properly effectuated service under 28 U.S.C. § 1608.
Section 1608(a) lists four methods for serving a foreign government, in the order in
which plaintiffs must attempt them:
(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
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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
(4) if service cannot be made within 30 days under paragraph (3), by sending two
copies 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 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); see also Fritz, 320 F. Supp. 3d at 87 (“Section 1608(a) provides four
methods of service in descending order of preference.” (internal quotation marks omitted)).
Because Iran does not have a special arrangement for service with Plaintiffs, nor is it party to an
international convention on service, Plaintiffs did not need to attempt service in accordance with
Section 1608(a)(1) or (a)(2). See Fritz, 320 F. Supp. 3d at 88; Ben-Rafael, 540 F. Supp. 2d at 52.
Accordingly, Plaintiffs tried to serve Iran under Section 1608(a)(3) on June 26, 2017. Then, as
required by Section 1608(a)(4), Plaintiffs initiated service through diplomatic channels 30 days
later. The State Department served Iran on October 24, 2017. By then, Plaintiffs had fully
complied with the service requirements of Section 1608. Fritz, 320 F. Supp. 3d at 89; Ben-
Rafael, 540 F. Supp. 2d at 52.
Because the Court has subject-matter jurisdiction over Plaintiffs’ claims, and because
they properly served Iran under 28 U.S.C. § 1608(a), the Court has personal jurisdiction over
Iran under 28 U.S.C. § 1330(b).
B. Liability
The private right of action in the FSIA terrorism exception provides that a foreign
government is liable to a U.S. citizen “for personal injury or death caused by an act of torture,
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extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or
resources for such an act.” 28 U.S.C. § 1605A(a)(1), (c). As a result, “a plaintiff that 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” if the plaintiff is a citizen of the
United States. Fritz, 320 F. Supp. 3d at 86–87.
Plaintiffs are citizens of the United States. And citizens are U.S. nationals for the
purposes of the FSIA. 28 U.S.C. § 1605A(h)(5); 8 U.S.C. § 1101(a)(22). Therefore, Plaintiffs
may rely on the cause of action in the terrorism exception to establish Iran’s liability for their
injuries. See Owens, 864 F.3d at 809. And because they have proven that the state-sponsored
terrorism exception abrogates Iran’s sovereign immunity and that this Court has jurisdiction over
their claims, they have also proved liability for the acts of terrorism that established jurisdiction.
Conclusion
For all of the above reasons, it is hereby ORDERED that Plaintiffs’ Motions for Default
Judgment (ECF Nos. 27, 32) are GRANTED. The Court will grant Plaintiffs’ Joint Motion to
Appoint a Special Master (ECF No. 41) in a separate order.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: May 31, 2019
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