Sotloff v. Syrian Arab Republic ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ARTHUR BARRY SOTLOFF et al.,
Plaintiffs,
Civil Action No. 16-725 (TJK)
v.
(Consolidated with 18-cv-1625)
SYRIAN ARAB REPUBLIC,
Defendant.
MEMORANDUM OPINION
James Foley and Steven Sotloff, American journalists covering the civil war and
humanitarian crisis in Syria, were kidnapped, tortured, and beheaded by the Islamic State of Iraq
and the Levant, also known as the “Islamic State,” “ISIS,” or “ISIL.” As a result of the
gruesome video of their deaths that ISIS distributed for propaganda purposes in 2014, their tragic
deaths are well-known to many Americans. This case, brought by their families against the
Syrian Arab Republic under the terrorism exception to the Foreign Sovereign Immunities Act, is
largely about whether Syria provided material support to ISIS such that Syria may be held liable
for what happened to them. After a two-day evidentiary hearing, the Court now finds Syria
liable. Thus, for the below reasons, it will grant the pending motion for default judgment and
enter judgment against Syria.
I. Background
A. Factual Background
1. Syria and the Rise of ISIS
Syria has provided safe haven and support to terrorist organizations within its borders for
decades. See 45 Fed. Reg. 33956 (May 21, 1980); Ex. 15 (2000 State Department Overview of
1
State-Sponsored Terrorism) at 5.1 In the early 2000s, the Zarqawi organization, or network,
operated from Syria and received funding and resources from Syria. See Foley v. Syrian Arab
Republic, 249 F. Supp. 3d 186, 193–95 (D.D.C. 2017); Thuneibat v. Syrian Arab Republic, 167
F. Supp. 3d 22, 36 (D.D.C. 2016); Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53, 59–63
(D.D.C. 2008).2 ISIS is simply “the most recent iteration of ‘the Zarqawi organization,’ [which]
has undergone several name changes since its emergence in the early 1990s.” Ex. 1 at 12; 3
1
The State Department Overview of State-Sponsored Terrorism is admissible as a public record
under Federal Rule of Evidence 803(8). This overview is from a “Patterns of Global Terrorism”
report that the D.C. Circuit has previously found admissible because it “fit[s] squarely within the
public records exception” provided in Federal Rule of Evidence 803(8)(A)(iii). Owens v.
Republic of Sudan, 864 F.3d 751, 792 (D.C. Cir. 2017). Under Rule 803(8), “[a] record or
statement of a public office” is admissible if “it sets out . . . factual findings from a legally
authorized investigation” and “the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(A)(iii), (B). “Once
proffered, a public record is presumptively admissible, and the opponent bears the burden of
showing it is unreliable.” Owens, 864 F.3d at 792 (citation omitted). In Owens, the court
concluded that the report satisfied these elements because it “contain[ed] both factual findings
and conclusions on [various states’] support for terrorism,” was created pursuant to a statute that
requires annual reports on terrorism, and was “therefore the product of a ‘legally authorized
investigation.’” Id. at 792–93 (quoting Fed. R. Evid. 803(8)(A)(iii)). And there are no indicators
of untrustworthiness.
2
The Court takes judicial notice of these facts found in these opinions, which it may do for any
fact “not subject to reasonable dispute” if it “is generally known within the trial court’s territorial
jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). “This ability to take notice of adjudicative
facts extends to judicial notice of court records in related proceedings.” Rimkus v. Islamic
Republic of Iran, 750 F. Supp. 2d 163, 171 (D.D.C. 2010) (citing cases). “Because of the
multiplicity of FSIA-related litigation in this jurisdiction, Courts in this District have thus
frequently taken judicial notice of earlier, related proceedings.” Id. And “when a court has
found facts relevant to a FSIA case involving material support to terrorist groups, courts in
subsequent, related cases may ‘rely upon the evidence presented in earlier litigation . . . without
necessitating the formality of having that evidence reproduced.’” Harrison v. Republic of Sudan,
882 F. Supp. 2d 23, 31 (D.D.C. 2012) (citation omitted). That said, the Court, as it must, reaches
its own, independent findings of these facts here. Rimkus, 750 F. Supp. 2d at 172.
3
Exhibits 1 and 2 are the written testimony and reports of Plaintiffs’ expert witnesses Dr.
Daveed Gartenstein-Ross and Dr. Matthew Levitt.
2
Gartenstein-Ross Hr’g Tr. 39:13–40:13; see also Ex. 2 at 1 (“Syrian government support for the
terrorist network that morphed into ISIS goes back many years, to include support for foreign
fighters traveling through Syria to join al Qaeda in Iraq (AQI, and specifically the terrorist
network led by Abu Musab al Zarqawi) which later became ISIS.”).
The United States’ invasion of Iraq in March 2003 opened a new chapter in Syria’s role
supporting Zarqawi’s organization. Despite pressure from the United States, 4 Syria continued to
support Zarqawi and his forces, motivated by twin desires to “tie down U.S. forces in Iraq” and
“allow the Iraq conflict to serve as an outlet for its domestic jihadists in the hope that if they
were fighting in the war in Iraq, they might not cause trouble at home.” Gartenstein-Ross Hr’g
Tr. 50:20–25; Ex. 1 at 53. Syria maintained direct ties to the Zarqawi organization and allowed
key Zarqawi operatives to operate in Syria and across its borders into neighboring countries. Ex.
1 at 53–55; Ex. 2 at 20–23. Over the next few years, Syria became “a transit station for al-Qaeda
foreign terrorists on their way to Iraq,” as Zarqawi facilitated the flow of “money, of weapons,
and terrorists intent on killing U.S. coalition forces and innocent Iraqis.” Levitt Hr’g Tr. 163:24–
164:3. The Treasury Department responded by designating members of the Zarqawi network in
Syria under Executive Order 13224 for providing financial and material support for terrorism. 5
4
See Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, Pub. L. No. 180-
175 (calling on Syria to “immediately and unconditionally stop facilitating transit from Syria to
Iraq of individuals, military equipment, and all lethal items . . . [and] cease its support for
‘volunteers’ and terrorists who are traveling from and through Syria into Iraq to launch attacks”).
5
Ex. 1 at 48; Ex. 16 (announcement of the designation of Sulayman Khalid Darwish, “one of the
most prominent members of the Zarqawi Network in Syria,” that also noted that Zarqawi and the
Zarqawi network had been named Specially Designated Global Terrorists in 2003 and 2004,
respectively); Ex. 17 (2008 announcement of the designation of Badran Turki Hishan al-
Mazidih, for “obtain[ing] false passports for foreign terrorists, provid[ing] passports, weapons,
guides, safe houses, and allowances to foreign terrorists in Syria and those preparing to cross the
border into Iraq”).
3
But the Zarqawi organization could not have operated in Syria without the “knowledge and
permission” of the Syrian regime. Levitt Hr’g Tr. 162:3. Thus, the Treasury Department also
moved to designate members of the Syrian government itself, including its Director of Military
Intelligence, as Specially Designated Nationals under Executive Order 13338, for furthering
Syria’s support for terrorism.6 Indeed, Syria’s policy toward the Zarqawi organization from
2002 to 2010 was for Syrian intelligence officers to “not investigate, surveil, assist, or arrest such
militants unless the top (officials) of the government wish[ed] it,” according to a former high-
ranking member of Syria’s intelligence service. ECF No. 37-1 ¶ 13. 7
In March 2011, “Syria began to experience the effects of the ‘Arab Spring’—a wave of
protests sweeping through the Middle East and North Africa against authoritarian governments.
The Arab Spring prompted both a non-violent movement as well as an armed insurrection,
calling for government change and an end to corruption . . .” Colvin v. Syrian Arab Republic,
363 F. Supp. 3d 141, 147 (D.D.C. 2019) (citations omitted). This movement made Syria’s
support for the terrorists within its borders a matter of survival for the Syrian regime. In the
months that followed, fearing Western military intervention of the sort that toppled Muammar al-
Qaddafi in Libya, Syria’s President Bashar al-Assad began supporting the latest iteration of the
Zarqawi organization “in an effort to paint all of the Syrian opposition as terrorists,” and thus
make similar action to dislodge his regime harder. Ex. 2 at 1, 6, 9; Ex. 1 at 53; ECF No. 37-1
6
Ex. 18 (2006 announcement of the designation of Assef Shawkat, the then-“Director of Syrian
Military Intelligence” and “close confidant of President Assad and an important member of his
inner circle of advisors,” “for directly furthering the Government of Syria’s support for
terrorism” by “working with terrorist organizations resident in Syria”).
7
Plaintiffs may prove their claims through use of affidavits in an FSIA default proceeding. See
Owens, 864 F.3d at 785–86 (citing Han Kim v. Democratic People’s Republic of Korea, 774
F.3d 1044, 1048–51 (D.C. Cir. 2014)); Colvin v. Syrian Arab Republic, 363 F. Supp. 3d 141, 147
n.4, 152 (D.D.C. 2019).
4
¶¶ 35–39. Syrian national security and intelligence forces coordinated the effort to help create
and support what became ISIS. Ex. 2 at 6–8. Syria did so in several ways.
First, between May and October 2011, Syria began unconditionally releasing battle-
hardened Syrian jihadists, including those that became senior ISIS leaders and key operatives.
Gartenstein-Ross Hr’g Tr. 56–58; Ex. 1 at 55 (“In 2015, Secretary of State John Kerry described
ISIS as, at least in part, ‘created by Assad releasing 1,500 prisoners from jail.’”); Ex. 2 at 1, 9–
10; ECF No. 37-1 ¶¶ 35–36. Many of the released jihadist prisoners had been held at “one of
Syria’s most notorious and brutal jails,” “known for gross human rights violations and . . . mass
executions” and described by former guards and prisoners as “an incubator for jihadism.”
Gartenstein-Ross Hr’g Tr. 56:1–16; Ex. 1 at 54–55. The Syrian regime selected prisoners for
release that would undermine more moderate forces opposing it. Ex. 2 at 9–10.
One released prisoner, Abu Luqman, became “one of the most notorious members of
ISIS’s leadership” and governor of Raqqa; he recruited hundreds of fighters, contributing to the
Islamic State’s ability to control territory. Ex. 1 at 56–58; Ex. 2 at 9. In 2015, the Treasury
Department designated Luqman under Executive Order 13224 for providing financial and
material support for terrorism, noting that he had been “in charge of ISIL’s detention of foreign
hostages,” “supervised security matters, including executions, interrogations, and transfers of
ISIL prisoners, at an al-Raqqah detention facility used to hold foreign hostages,” and had
“ordered the beheadings of two ISIL hostages” in 2014. Ex. 1 at 58. Another prisoner that Syria
released, Amr al-Absi, became governor of Aleppo and ran an ISIS prison there, below a
children’s hospital. Gartenstein-Ross Hr’g Tr. 68:18-24. Al-Absi also led ISIS’s media efforts
and was responsible for the distribution of propaganda videos depicting the beheadings of
prisoners. Id.; Ex. 1 at 61.
5
Second, Syria also developed a “direct financial relationship” with ISIS that helped it
raise revenue. Gartenstein-Ross Hr’g Tr. 82:14–19. In 2014, ISIS captured strategic oil fields in
Northeastern Syria and Northern Iraq. Gartenstein-Ross Tr. 78:20–25. The Assad regime
bought oil (and wheat) from ISIS, helping to fill its coffers. Ex. 2 at 11–13; Ex. 1 at 63–73; ECF
No. 37-1 ¶ 47. In 2014, the year ISIS executed Foley and Sotloff, its oil revenues were as high
as $3 million per day. Id. at 79:6–7; Ex. 1 at 65; Ex. 2 at 12. Moreover, “[a]ccording to
numerous accounts, including documents intercepted from ISIS’s oil minister, Syria was the
biggest customer of ISIS’s oil.” Gartenstein-Ross Tr. 54:12–15; see Ex. 1 at 66–70. The
Treasury Department recognized the significance of these oil sales by sanctioning several Syrian
businessmen under Executive Order 13582 for facilitating them. Ex. 7; Ex. 27.
Another example of Syria’s financial assistance to ISIS concerned access to the
international banking system. The Financial Action Task Force (FATF), an inter-governmental
policymaking body of which the United States is a member, issued a report that found that as of
February 2015, Syria permitted more than 20 Syrian financial institutions to operate in ISIS-
controlled territory.8 Ex. 8 at 28. By allowing ISIS to use its banks, Syria provided vital access
8
This report is admissible under Federal Rule of Evidence 803(8). “A record or statement of a
public office” is admissible under this Rule in a civil case if it “sets out . . . factual findings from
a legally authorized investigation” and “the opponent does not show that the source of
information or other circumstances indicate a lack of trustworthiness.” Fed. R. Evid.
803(8)(A)(iii), (B). The report lays out factual findings by the FATF after an investigation “to
identify a wide variety of [terrorist financing] methods terrorists use to raise, move and use
funds,” Ex. 8 at 5, in accordance with FATF’s mandate “to address the funding of terrorist acts
and terrorist organizations,” id.; see also ECF No. 40 at 8 (citing Terrorist Financing, FATF,
http://www.fatf-gafi.org/publications/fatfgeneral/documents/terroristfinancing.html (last visited
Mar. 8, 2021)). And there is no reason to believe the FATF report is untrustworthy. The D.C.
Circuit has found a report by an inter-governmental policy-making body admissible, see In re
Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1481–83 (D.C. Cir. 1991) (upholding
admission of investigative report by International Civil Aviation Organization regarding plane
crash under Rule 803(8)).
6
to the international financial system to ISIS, Levitt Hr’g Tr. 269:10–15, that allowed it to
“function as a local economy,” i.e., to “send [money] abroad for purchasing power,” to buy
weapons, resources needed to keep the oil industry functioning, and “things [needed] to run
society, the schools and garbage collection and everything else that a militant organization has to
take care of when they take over control of territory,” id. at 273:23–274:5.
Third, Syria cooperated militarily with ISIS by often refraining from targeting ISIS
positions and encouraging it to attack more moderate forces that opposed Assad’s regime. Ex. 2
at 10; see ECF No. 37-1 ¶¶ 40–45; Levitt Hr’g Tr. 276:17–277:11. For example, according to a
former high-ranking member of Syria’s intelligence service, several times Syria used military
helicopters to transport ISIS fighters to areas that would benefit the regime, and supplied ISIS
fighters with weapons by ordering its troops to retreat from positions near ISIS-controlled
territory and to leave their weapons behind. ECF No. 37-1 ¶¶ 40–41. This military cooperation
allowed ISIS to conquer and hold cities such as Aleppo and Raqqa, without which it would not
have been able to kidnap and hold hostages there. Ex. 2 at 10–11. 9
Consistent with all the above, from 2014—when the State Department began identifying
ISIS in its annual Country Reports on Terrorism (CRT)10—through 2017, the CRT consistently
9
Syrian and Islamic State forces sometimes engaged each other on the battlefield. Levitt Hrg.
Tr. 282:3–17; Ex. 2 at 10. But that does not undermine the fact that Syria cooperated with ISIS
in important ways that assisted it militarily. As Secretary of State John Kerry observed, Syria
refused to attack ISIS’s headquarters, despite full knowledge of its whereabouts. Ex. 1 at 63.
And according to a former high-ranking member of Syria’s intelligence service, Assad murdered
his own officers to hide evidence of Syrian-ISIS cooperation, and never seriously targeted ISIS’s
forces, its leaders, or headquarters. ECF No. 37-1 ¶¶ 43–45. Syria only sometimes killed low-
level ISIS fighters for “show,” and deliberately sacrificed both Syrian military forces and Syrian
civilians to allow ISIS to flourish. Id. ¶ 45; Levitt Hr’g Tr. 281:11–282:2.
10
The reports are admissible under rule 803(8) because, like the “Patterns of Global Terrorism
Reports” found admissible in Owens, they contain factual findings and conclusions regarding
7
recognized Syria’s support for ISIS’s rise. See Ex. 3 (“2014 CRT”) at 287–88 (noting that the
terrorist networks in Syria, which grew from the permissive attitude the Assad regime took
toward predecessor organizations, “were the seedbed for the violent extremist elements,
including ISIL”); Ex. 4 (“2015 CRT”) at 301–02 (“As part of a broader strategy during the year,
the regime portrayed Syria itself as a victim of terrorism, characterizing all of the internal armed
opponents as ‘terrorists.’”); Ex. 5 (“2016 CRT”) at 305–06 (“The Syrian regime has purchased
oil from ISIS through various middlemen, adding to the terrorist group’s revenue.”); Ex. 6
(“2017 CRT”) at 219–20.
2. Foley’s and Sotloff’s Kidnapping, Torture, and Beheading
On November 22, 2012, Foley and another journalist in Syria, heading toward the
Turkish border in a taxi, were stopped, handcuffed, and forced into the back of a van. Ex. 1 at
23. Though it is unclear which militant group initially captured them, shortly afterward ISIS
took custody of them. Ex. 1 at 23, n. 78; Gartenstein-Ross Hr’g Tr. 101:1–6. Over the next
eighteen months, ISIS moved the two several times, ultimately to the prison beneath the Aleppo
Children’s Hospital. Ex. 1 at 23. Almost a year later, on August 4, 2013, ISIS militants
kidnapped Sotloff shortly after he crossed the border into Syria from Turkey. Ex. 1 at 30. They
brought him to the same prison in Aleppo and held him in the same series of prison cells as
French journalist Nicolas Henin. Id.; Ex. 11 (“Henin Aff.”) ¶ 10. In mid-October, Foley joined
them there. Id. ¶ 11. For the next six months, until Henin’s release in April 2014, Henin, Foley,
and Sotloff shared a series of prison cells. Id. ¶ 12.
terrorism in various countries compiled pursuant to 22 U.S.C. § 2656f, which requires annual
reports on terrorism. Owens, 864 F.3d at 792.
8
During that time, Henin, Foley, and Sotloff were kept in complete darkness for months
on end, chained to one another and other prisoners in extremely narrow, cramped rooms, and
forced to use bottles and buckets to go to the bathroom. Id. ¶¶ 13–19. They were beaten,
starved, forced to watch videos of other hostages being executed, and regularly threatened with
execution. Id. The beatings appear to have been timed to encourage hostages to recount their
treatment after being released to pressure their home countries to negotiate with ISIS. Id. ¶ 21.
The men constantly feared torture and execution. Id. ¶¶ 15, 21.
Foley told Henin that before the two were held together, he had been beaten even more
severely, repeatedly waterboarded, and starved. Id. ¶¶ 16–18.11 Foley’s physical appearance
reflected the torture he endured: his ribs had been broken but had not been allowed to heal
properly and were “pushed inside this chest,” id. ¶ 16, and his ankles were scarred because his
captors had “chained his feet to a bar and then hung the bar so that he was upside down from the
ceiling,” Ex. 1 at 41–42. Henin also witnessed Sotloff’s severe suffering at the hands of his ISIS
captors. On one instance, two men punched and kicked Sotloff dozens of times. Henin Aff.
¶ 20. Sotloff’s captors’ death threats also brought him severe “bouts of crippling depression,”
about whether he would ever see his parents again. Id. ¶ 23. After months in the Aleppo prison,
Henin, Foley, and Sotloff were moved to a prison in Raqqa. Id. ¶ 27; Ex. 1 at 43.
11
Henin’s statement about what Foley told him about Foley’s prior treatment is admissible under
Federal Rule of Evidence 807. Under this rule, hearsay is admissible if “(1) the statement is
supported by sufficient guarantees of trustworthiness—after considering the totality of
circumstances under which it was made and evidence, if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts.” Fed. R. Evid. 807(a)(1)–(2). Here, the
statement is supported by strong indicia of trustworthiness, as Henin observed the physical
effects of the torture Foley said he had endured, Henin himself was tortured and witnessed ISIS’s
torture of Foley and other prisoners, and an expert testified that ISIS routinely tortures its
hostages. Gartenstein-Ross Hrg. Tr. 93:12–13. And Foley’s statement is more probative as to
his treatment during this time than any other evidence available through reasonable efforts.
9
On August 19, 2014, ISIS released a propaganda video depicting Foley’s beheading. Ex.
1 at 29. On it, he was forced to kneel in front of a camera and recite a statement denouncing the
United States. Ex. 1 at 25. Standing beside him, Mohammad Emwazi, a member of the
notorious ISIS execution cell known as “the Beatles” for their British accents, warned that
further American military aggression would lead to “the bloodshed of [American] people.” Id. at
27; Ex. 26. After the beheading, Emwazi reappeared on the video with Sotloff, still alive,
warning that “[t]he life of this American citizen, Obama, depends on your next decision.” Ex. 1
at 27. A few weeks later, on September 2, 2014, ISIS released another propaganda video, this
one depicting Sotloff’s execution. Ex. 1 at 30. In the video, Sotloff knelt in an orange jumpsuit
and recited a statement blaming the United States and President Obama’s foreign policy for his
death. Id. at 32; Ex. 25. As in the Foley video, Emwazi then directed a threat to President
Obama that “[ISIS’s] knife will continue to strike the necks of your people,” unless the United
States “leaves [them] alone.” Ex. 1 at 32–33; Ex. 25.
B. Procedural Background
In March 2016, Sotloff’s father Arthur—as representative of Sotloff’s estate and on his
own behalf—and his mother, Shirley, and sister Lauren (“the Sotloffs”), sued Syria for Sotloff’s
hostage taking, torture, and extrajudicial killing under the terrorism exception to the Foreign
Sovereign Immunities Act (FSIA). See Compl. The Clerk of Court mailed a copy of the
Sotloffs’ summons and complaint, along with a translation of each, to the head of the Syrian
Foreign Ministry through an international courier under 28 U.S.C. § 1608(a)(3). ECF No. 8.
After the summons was returned unexecuted, the Clerk sent the same materials to the State
Department to carry out diplomatic service under 28 U.S.C. § 1608(a)(4). ECF No. 11. Service
10
was effectuated on Syria through the Embassy of the Czech Republic in Damascus in February
2017. ECF No. 15.
In July 2018, Foley’s mother—as representative of Foley’s estate and on her own
behalf—along with Foley’s father, John, and siblings, John, Mark, and Kathryn (“the Foleys,”
and, with the Sotloffs, “Plaintiffs”), sued Syria for Foley’s hostage taking, torture, and
extrajudicial killing under the terrorist exception to the FSIA. Pls. Compl., Foley v. Syrian Arab
Republic, No. 18-cv-1625 (D.D.C. July 10, 2018). The Clerk of Court mailed a copy of the
summons and complaint, along with a translation of each, to the head of the Syrian Foreign
Ministry through an international courier under 28 U.S.C. § 1608(a)(3). ECF No. 9, Foley, No.
18-cv-1625 (D.D.C. July 31, 2018). After the summons was returned unexecuted, the Clerk sent
the same materials to the State Department to carry out diplomatic service under 28 U.S.C.
§ 1608(a)(4). ECF No. 13, Foley, No. 18-cv-1625 (D.D.C. Aug. 14, 2018). Service was
effectuated on Syria through the Embassy of the Czech Republic in Damascas in November
2018. ECF No. 15, Foley, No. 18-cv-1625 (D.D.C. Jan. 15, 2019).
The Court consolidated the two matters in September 2018. ECF No. 25. Syria did not
respond to either complaint or otherwise appear. In January 2019, the Clerk of the Court entered
default against Syria in both cases. ECF No. 33. Later that year, Plaintiffs moved for default
judgment. ECF No. 34. In June 2020, the Court held a two-day evidentiary hearing on the
motion for default judgment and heard from two witnesses. The first expert, Dr. Daveed
Gartenstein-Ross, is an anti-terrorism scholar and author who has worked, in various capacities,
on issues related to violent non-state actors for over a decade. Gartenstein-Ross Hr’g Tr. 13:1–
12. He has testified as an expert on terrorism and jihadist groups in many courts, including in
this District. See, e.g., Foley v. Syrian Arab Republic, 249 F. Supp. 3d 186 (D.D.C. 2017). The
11
Court qualified him as an expert on violent non-state actors generally, ISIS’s evolution from its
predecessor organizations, and ISIS’s material supporters. Gartenstein-Ross Hr’g Tr. 35:17–23.
The second, Dr. Matthew Levitt, is director of the counterterrorism and intelligence program at
the Washington Institute, a think tank dedicated to U.S. policy in the Middle East. Levitt Hr’g
Tr. 116:11–118:5. He has also testified as an expert witness in many court proceedings, and has
been cited by the United States Court of Appeals for the Sixth Circuit and the U.S. Supreme
Court. See United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005); Holder v. Humanitarian
Law Project, 561 U.S. 1, 30–31 (2010). The Court qualified him as an expert on the Syrian
government’s relationship with ISIS’s predecessor organizations and ISIS itself between 2010
and 2015. Levitt Hr’g Tr. 141:9–18.
II. Legal Standards
Under Federal Rule of Civil Procedure 55(b)(2), a court may consider entering a default
judgment when a party applies for that relief. See Fed. R. Civ. P. 55(b)(2). “[S]trong policies
favor resolution of disputes on their merits,” and so “‘[t]he default judgment must normally be
viewed as available only when the adversary process has been halted because of an essentially
unresponsive party.’” Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980) (quoting H.F.
Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970)).
Still, “entry of a default judgment is not automatic.” Mwani v. bin Laden, 417 F.3d 1, 6
(D.C. Cir. 2005) (footnote omitted). A court retains its “affirmative obligation” to determine
whether it has subject-matter jurisdiction over the action. James Madison Ltd. by Hecht v.
Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996). Additionally, “a court should satisfy itself that it
has personal jurisdiction before entering judgment against an absent defendant.” Mwani, 417
F.3d at 6. And “plaintiffs retain ‘the burden of proving personal jurisdiction, [and] they can
12
satisfy that burden with a prima facie showing.’” Id. at 7 (quoting Edmond v. U.S. Postal Serv.
Gen. Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991)). In doing so, “they may rest their argument
on their pleadings, bolstered by such affidavits and other written materials as they can otherwise
obtain.” Id.“When default judgment is sought under the FSIA, a claimant must ‘establish[] his claim
or right to relief by evidence satisfactory to the court.’” Warmbier v. Democratic People’s
Republic of Korea, 356 F. Supp. 3d 30, 42 (D.D.C. 2018) (quoting 28 U.S.C. § 1608(e)). And
courts must apply that standard mindful that “Congress enacted the terrorism exception expressly
to bring state sponsors of terrorism . . . to account for their repressive practices,” Han Kim v.
Democratic People’s Republic of Korea, 774 F.3d 1044, 1048 (D.C. Cir. 2014), and to “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, 89 (D.C. Cir. 2002).
As a result, the D.C. Circuit has instructed that “courts have the authority—indeed . . . the
obligation—to ‘adjust evidentiary requirements to . . . differing situations.’” Han Kim, 774 F.3d
at 1048 (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)). To be sure, courts must
draw their “findings of fact and conclusions of law from admissible testimony in accordance
with the Federal Rules of Evidence.” Id. at 1049 (quoting Daliberti v. Republic of Iraq, 146 F.
Supp. 2d 19, 21 n.1 (D.D.C. 2001)). But uncontroverted factual allegations supported by
admissible evidence may be taken as true. Roth v. Islamic Republic of Iran, 78 F. Supp. 3d 379,
386 (D.D.C. 2015). And § 1608(e) “does not require a court to step into the shoes of the
defaulting party and pursue every possible evidentiary challenge.” Owens, 864 F.3d at 785.
In a FSIA default proceeding, a court can find that the evidence presented is satisfactory
“when the plaintiff shows ‘her claim has some factual basis,’ . . . even if she might not have
13
prevailed in a contested proceeding.” Id. (citations omitted). “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 an absent and likely hostile sovereign.” Id.
Thus, courts are given “an unusual degree of discretion over evidentiary rulings in a FSIA case
against a defaulting state sponsor of terrorism.” Id. And this discretion extends to the admission
of expert testimony, often “of crucial importance in terrorism cases . . . because firsthand
evidence of terrorist activities is difficult, if not impossible, to obtain,” “[v]ictims of terrorist
attacks . . . are often . . . unable to testify about their experiences,” and “[p]erpetrators of
terrorism typically lie beyond the reach of the courts and go to great lengths to avoid detection.”
Id. at 787 (citations omitted). Moreover, “[e]yewitnesses in a state that sponsors terrorism are
similarly difficult to locate” and “[t]he sovereigns themselves often fail to appear and to
participate in discovery.” Id. For these reasons, the D.C. Circuit has recognized that “reliance
upon secondary materials and the opinions of experts is often critical in order to establish the
factual basis of a claim under the FSIA terrorism exception.” Id.
III. Analysis
A. 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); see also 28
U.S.C. § 1330. As relevant here, Plaintiffs must prove four elements to establish subject-matter
jurisdiction under the terrorism exception: (1) the foreign state was designated a state sponsor of
terrorism when the act of terrorism occurred and when this action was filed; (2) the claimant or
victim was a national of the United States at the time of the act; (3) the claimant afforded the
14
foreign state a reasonable chance to arbitrate the claim; and (4) the damages sought are for
personal injury or death caused by the act of terrorism. See Akins, 332 F. Supp. 3d at 32; 28
U.S.C. § 1605A. Plaintiffs have proven all of these elements.
1. The United States Designated Syria a State Sponsor of Terrorism
The State Department designated Syria a state sponsor of terrorism on December 29,
1979, and Syria has remained so designated since. See Revision of Foreign Policy Controls on
Exports to Syria, Iraq, Libya, and the People’s Democratic Republic of Yemen, 45 Fed. Reg.
33956 (May 21, 1980).
2. Plaintiffs Are U.S. Nationals
Foley, Sotloff, and their family members are and were at all relevant times United States
citizens. Ex. 12; Ex. 13. And United States citizens are nationals for FSIA purposes. 28 U.S.C.
§ 1605A(h)(5); 8 U.S.C. § 1101(a)(22).
3. Plaintiffs Offered to Arbitrate Their Claims
“The FSIA ‘does not require any particular form of offer to arbitrate, simply the
extension of a “reasonable opportunity.”’” Warmbier, 356 F. Supp. 3d at 45 (quoting Simpson v.
Socialist People’s Libyan Arab Jamahiriya (Simpson I), 326 F.3d 230, 234 (D.C. Cir. 2003)).
Plaintiffs included an Offer to Arbitrate, as well as a translation of that letter into Arabic, with
their summons and complaint. Ex. 14 ¶ 4. Syria did not respond. As a result, this element is
satisfied. See Moradi v. Islamic Republic of Iran, 77 F. Supp. 3d 57, 66 (D.D.C. 2015); Simpson
I, 236 F.3d at 233.
4. Syria’s Actions Qualify for the Terrorism Exception
The fourth element of subject-matter jurisdiction under the FSIA terrorism exception is
that the plaintiffs seek damages for personal injury or death caused by the foreign state’s
15
commission of 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.” 28 U.S.C. § 1605A(a)(1). Plaintiffs allege that ISIS took Foley and Sotloff
hostage, tortured, and killed them, and that Syria’s provision of material support to ISIS caused
such acts. See ECF No. 34 at 33–36. On all counts, they have met their burden.
a. Hostage Taking, Torture, and Extrajudicial Killing
i. Hostage Taking
Hostage taking under the FSIA is defined by Article 1 of the International Convention
against the Taking of Hostages, which states:
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 offense of taking of hostages.
28 U.S.C. § 1605A(h)(2); International Convention Against the Taking of Hostages art. 1, Dec.
17, 1979, 18 I.L.M. 1456, 1316 U.N.T.S. 205. Hostage taking thus has two elements: the
abduction or detention and the purpose of accomplishing “the sort of third-party compulsion
described in the [C]onvention.” Simpson v. Socialist People’s Libyan Arab Jamahiriya (Simpson
II), 470 F.3d 356, 359 (D.C. Cir. 2006) (quoting Price, 294 F.3d at 94). Even so, purported
hostage-takers need not have communicated their purpose to the third party whose behavior they
intend to compel. Id. at 360–61.
Plaintiffs have satisfied the first element of hostage taking based on the evidence
submitted with their motion and presented to the Court at the hearing. Dr. Gartenstein-Ross
concluded, based on the available evidence and his knowledge and expertise, that ISIS abducted
16
Sotloff and detained Foley until his execution.12 Gartenstein-Ross Hr’g Tr. 100–01; Ex. 1 at 23,
30. Moreover, ISIS’s responsibility for the abductions of Foley and Sotloff is supported by
Henin’s account of fellow hostages detained in the same ISIS prison beneath the Aleppo
Children’s Hospital. See Henin Aff. ¶¶ 3, 6, 9–12.
The Court also finds that the second element of hostage taking is satisfied, because
Plaintiffs have shown that ISIS “threaten[ed] to kill, injure, or continue to detain” Foley and
Sotloff “to compel” the United States to make concessions and refrain from military action. Ex.
1 at 27, 40; see also Frost v. Islamic Republic of Iran, 383 F. Supp. 3d 33, 46 (D.D.C. 2019)
(“Political leverage in the context of a country’s relationship with the United States is a
sufficiently coercive purpose to establish hostage taking.”). This is so for several reasons.
First, Foley’s and Sotloff’s executioner made explicit threats to the United States in both
propaganda videos, warning President Obama to cease military action in the region and linking
ISIS’s treatment of prisoners to the United States’ failure to heed that warning. See, e.g., Ex. 1 at
27, 32–33. Second, Dr. Gartenstein-Ross offered his credible and well-reasoned opinion that
ISIS took hostages and treated them so brutally for the broader purpose of “send[ing] [a]
message and . . . giv[ing] it complete control over populations and prisoners who fell under its
control.” Gartenstein-Ross Hr’g Tr. 92:22–93:2. And third, according to Henin, ISIS guards
appeared to time the beatings of its hostages “to increase the pressure on the Western powers to
negotiate.” Henin Aff. ¶¶ 15, 21. For these reasons, the Court finds that ISIS’s kidnapping of
Sotloff, and detention of both Sotloff and Foley, qualifies as a hostage taking.
12
Dr. Gartenstein Ross testified that it was not clear whether Foley was first seized by ISIS, but
he concluded that at a minimum, shortly after Foley’s abduction, ISIS took control of him and
held him until his execution. Gartenstein-Ross Hr’g Tr. 100:23–101:6.
17
ii. Torture
The FSIA’s definition of torture is imported from the Torture Victim Protection Act
(“TVPA”). 28 U.S.C. § 1605A(h)(7). Under that statute,
(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). To establish torture, the plaintiffs must also show that the conduct was
sufficiently severe and purposeful. Warmbier, 356 F. Supp. 3d at 46.
The Court has no trouble concluding that ISIS tortured Foley and Sotloff. Dr.
Gartenstein-Ross testified that “[n]obody who escaped from ISIS’s imprisonment has ever
reported not being tortured.” Gartenstein-Ross Hr’g Tr. 93:12–13. He outlined ISIS’s brutal
methods of physical and mental torture, including the abysmal and unsanitary living conditions.
Ex. 1 at 36–43. And he persuasively concluded that he has no doubt that ISIS tortured Foley and
Sotloff, as described in his report. Gartenstein-Ross Hr’g Tr. 101:8–11. Moreover, according to
18
Henin, Foley and Sotloff were starved, beaten, waterboarded, confined in cramped cells and in
complete darkness for months, and forced to use buckets and bottles to go to the bathroom.
Henin Aff. ¶¶ 13–19. And their ISIS captors regularly threatened their lives. Id. ¶¶ 15, 21.
These acts—infliction of starvation, unsanitary conditions, severe pain, and threats of
execution—are severe enough to qualify as torture under the TVPA. See, e.g., Kilburn v. Islamic
Republic of Iran, 699 F. Supp. 2d 136, 152 (D.D.C. 2010) (hostage experienced torture in the
form of “beatings, unsanitary conditions, inadequate food and medical care, and mock
executions”); Moradi, 77 F. Supp. 3d at 68–69 (detainee in Iranian prison experienced torture
when subjected to “severe physical and mental pain, including threatening him with death and
dismemberment, physically beating him, . . . and keeping him in excruciatingly painful positions
for hours at a time during the interrogations”); Foley, 249 F. Supp. 3d at 203 (D.D.C. 2017)
(hostage subjected to threats of imminent death was tortured in the form of “mental pain and
suffering”).
The Court also finds that ISIS’s treatment of Sotloff and Foley satisfies the “purpose”
requirement under the TVPA. Again, Dr. Gartenstein-Ross testified how “torture was an
intimate part of ISIS’s standard operating procedures for its hostages” to obtain information,
pressure the hostages’ countries into negotiations, and coerce hostages into making statements
ISIS could use for propaganda purposes. Ex. 1 at 39–42; see also Henin Aff. ¶¶ 15, 21.
Moreover, ISIS used torture to punish Americans in particular for acts of the United States
government. Ex. 1 at 36–43. Sure enough, according to Henin, ISIS inflicted severe physical
and mental pain on Foley in part because he was an American and had a brother in the U.S. Air
Force. Henin Aff. ¶ 16. And it seems obvious that torture—the threat of execution—was used to
coerce both Foley and Sotloff into making statements denouncing the United States right before
19
they were killed. Ex. 1 at 25–27, 31–33, 35; Ex. 25; Ex. 26. For these reasons, the Court finds
that ISIS’s treatment of Sotloff and Foley qualifies as torture.
iii. Extrajudicial Killing
The state-sponsored terrorism exception to the FSIA also defines “extrajudicial killing”
through reference to the TVPA. 28 U.S.C. § 1605A(h)(7). Under the TVPA, an “extrajudicial
killing” is:
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.
Torture Victim Protection Act of 1991, Pub. L.No. 102-256, 106 Stat. 73 (1992), codified at 28
U.S.C. § 1350 (note). 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.
Given the testimony and other evidence already described, the Court need not take long
to explain its conclusion that Foley’s and Sotloff’s deaths were “extrajudicial killings” under the
statute. In Dr. Gartenstein-Ross’s view, ISIS was plainly responsible for their deaths.
Gartenstein-Ross Hr’g Tr. 36:22–25, 97:10–11. In particular, ISIS’s own propaganda videos
depicting the killings left him “no doubt that these were authentic ISIS productions associated
with that organization.” Gartenstein-Ross Hr’g Tr. 98–99. 13 Second, the killings were
13
Dr. Gartenstein-Ross reached this conclusion about the propaganda videos for several reasons,
including the presence of the logos of ISIS and the Al-Furquan Foundation, an ISIS media
production unit; the orange jumpsuits worn by Foley and Sotloff, which were typical of ISIS
hostages; the identification of the executioner as Emwazi, a member of ISIS; the distribution of
the video through ISIS’s typical propaganda distribution channels; and ISIS’s subsequent public
statements taking responsibility. Id. at 97–99; Ex. 1 at 24–36.
20
“deliberated” in that they involved “substantial preparation,” as both Foley and Sotloff were
forced to read coerced, prepared statements before being killed, and recordings of the beheadings
were then widely distributed through ISIS’s propaganda channels. See Owens, 870 F.3d at 770
(quoting Mamani v. Berzain, 654 F.3d 1148, 1155 (11th Cir. 2011) (defining “deliberated” under
the TVPA as “being undertaken with studied consideration and purpose”)). Finally, the
beheadings were not authorized by any regularly constituted court or carried out under
international law by a sovereign nation. Thus, their deaths were “extrajudicial killings” under
the state-sponsored terrorism exception to the FSIA.
b. Syria’s Material Support of ISIS Caused Foley’s and Sotloff’s
Hostage Taking, Torture, and Extrajudicial Killing
The final requirement under § 1605 is a showing that Sotloff and Foley’s abduction,
torture, and beheading were “caused by. . . the provision of material support or resources” to
ISIS by “an official, employee, or agent” of Syria. 28 U.S.C. § 1605A(a)(1).
i. Material Support
The state-sponsored terrorism exception to the FSIA defines “material support” as having
the meaning provided in 18 U.S.C. § 2339A:
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).
Plaintiffs have shown that Syria provided material support to ISIS. As explained at
length above, the Court finds that Syria, consistent with its support of ISIS’s predecessor
organizations, provided ISIS support through the release of prisoners, financial assistance in the
21
form of oil purchases and access to the international financial system, and strategic military
cooperation that served the needs of the Assad regime. These actions constitute material support
in the form of “personnel,” “currency or monetary instruments or financial securities,” “financial
services,” “training, expert advice or assistance,” “weapons,” and “transportation.” 18 U.S.C.
§ 2339A(b)(1).
ii. Causation
A plaintiff need only show proximate cause under the statute. Kilburn, 376 F.3d at 1128.
Thus, she may establish proximate cause by showing “a reasonable connection between the
material support provided and the ultimate act of terrorism.” Foley, 249 F. Supp. 3d at 204
(quoting Owens v. Republic of Sudan, 826 F. Supp. 2d 128, 151 (D.D.C. 2011)) (cleaned up).
More specifically, Plaintiffs must establish (1) that Syria’s provision of material support was a
“substantial factor in the sequence of events” that led to Foley’s and Sotloff’s hostage taking,
torture, and extrajudicial killing, and (2) that what happened to them was “reasonably
foreseeable or anticipated as a natural consequence of [Syria’s] conduct.” Owens, 864 F.3d at
794 (cleaned up). Again, Plaintiffs have met the relevant legal standard.
The Court finds that Syria’s aid to ISIS was, at the very least, a substantial factor in the
sequence of events that led to Foley’s and Sotloff’s hostage taking, torture, and extrajudicial
killing. Indeed, Dr. Gartenstein-Ross testified that “it is unlikely that ISIS would have been able
to amass as much power as it did and thus kill Mr. Foley and Mr. Sotloff in the manner that it did
in this case but for actions undertaken by the Syrian Arab Republic.” Gartenstein-Ross Hr’g Tr.
37:10–14. As detailed above, both experts persuasively contended that Syria allowed ISIS’s
predecessor organizations to thrive for strategic reasons, including to help ensure the Assad
regime’s survival. Gartenstein-Ross Hr’g Tr. 54:12–15; 56–58, 68:18–24; 78:20–25; 79:6–7;
22
82:14–19; Levitt Hr’g Tr. 269:10–15; 273:23, 276:17–277:11. And “those very networks were
the seedbed for the violent extremist elements, including ISIL.” 2014 CRT at 287–88. Then,
Syria’s material support to ISIS—its release of prisoners, financial relationship with ISIS, and
military coordination with it—was a substantial factor in its development into a wealthy proto-
state with sophisticated, battle-hardened leadership that controlled large swaths of territory. See
Ex. 8 at 10, 13–14, 27–28; Ex. 2 at 6–15. And it was only under those conditions that ISIS could
hold Foley and Sotloff hostage in multiple locations, torture them for extended periods, behead
them outdoors, and use their deaths for propaganda purposes. Gartenstein-Ross Hr’g Tr. 103–
107; Levitt Hr’g Tr. 290; Ex. 2 at 24.
Indeed, in a few cases, prisoners Syria released had a direct role in what happened to
Foley and Sotloff. Al-Absi, for example, “played a direct role in Mr. Foley’s imprisonment,”
including his detention and interrogation, and likely Sotloff’s as well. Gartenstein-Ross Hr’g Tr.
69:8–18; 71:9–23; Ex. 1 at 61. He held several leadership positions within ISIS, including
governor of Aleppo, leader of ISIS’s media efforts, id. 68:18-24, and ran the prison in Aleppo
where Foley and Sotloff were held. Id. 69:8–18. Moreover, “there is a strong chance that Mr.
Absi was involved in the distribution of Mr. Foley and Mr. Sotloff’s beheading videos.”
Gartenstein-Ross Hr’g Tr. 72:2–4.
The Court also finds that the second element of causation is satisfied, because Plaintiffs
have shown that the hostage taking, torture, and extrajudicial killing of Foley and Sotloff were
“reasonably foreseeable” consequences of Syria’s prisoner release, financial support, and
military aid. Syria has a long history of providing material support for the Zarqawi organization,
the predecessor to ISIS. See Foley, 249 F. Supp. 3d at 193–95 (finding Syria liable for terrorist
acts committed by the Zarqawi organization); Thuneibat, 167 F. Supp. 3d at 36 (“[P]laintiffs
23
have established these suicide bombers were trained, funded, and sent by Zarqawi and his
organization . . . which received material support and resources from [Syria].”); Gates, 580 F.
Supp. 2d at 59–63 (finding Syria provided material support to the Zarqawi organization through
serving as a “logistical hub” and facilitating transportation of terrorists into Iraq, providing
sanctuary to terrorists, and financing Zarqawi and his network). And as Dr. Gartenstein-Ross
explained, the Zarqawi organization routinely kidnapped, tortured, and beheaded Americans and
journalists in strikingly similar fashion. Gartenstein-Ross Hr’g Tr. at 107:19–25. ISIS in Iraq
had even “captured Americans; put them in orange jumpsuits of a kind that Mr. Sotloff and Mr.
Foley were forced to wear; [] tortured them; and then [] beheaded them on camera.” Id. Thus,
“it was very foreseeable that it might happen again.” Gartenstein-Ross Hr’g Tr. 107:25–108:1;
see also Doe v. Syrian Arab Republic, No. 18-cv-66 (KBJ), 2020 WL 5422844, at *12 (D.D.C.
Sept. 10, 2020) (finding bombing injuries a reasonably foreseeable result of Syria’s support for
ISIS because its prior support for a predecessor organization had led to increased violence).
For his part, Dr. Levitt testified that what happened to Foley and Sotloff was reasonably
foreseeable because, as detailed above, Syria wanted to create an organization capable of such
depraved violence; that was the very reason it supported ISIS in the first place:
There is no question—absolutely no question—that the Assad regime knew;
expected; wanted the Islamic State to engage in abhorrent violence specifically so
that it would become a worse boogeyman than the Syrian regime. . . . So did the
Syrian Government know that these two men would be kidnapped and held and
brutally murdered? Probably not. Did they expect that things like this would
happen? Yes. Did they want for things like this to happen? Yes. Could they
have foreseen; should they have foreseen and known that this type of action
would have happened based on the actions that they took and the actions they
chose not to take in both cases to support and sponsor the Islamic State? Yes.
Levitt Hr’g Tr. 291:22–292:21.
* * *
24
For all these reasons, Plaintiffs have shown that Syria is not immune from suit for Sotloff
and Foley’s hostage taking, torture, and murder and that this Court has subject-matter
jurisdiction over their claims under the FSIA’s terrorism exception.
B. Personal Jurisdiction Over Syria
To impose judgment on a foreign state under the FSIA, this Court must also have
personal jurisdiction. Personal jurisdiction over a foreign government turns on a showing of
(1) subject-matter jurisdiction under the FSIA; and (2) proper service under the FSIA. 28 U.S.C.
§ 1330(b). As Plaintiffs have already satisfied the first requirement, the Court turns to the
second.
28 U.S.C. § 1608(a) lists four methods of 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
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.
25
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 Syria does not have a special arrangement for service with Plaintiffs, nor is it a party to
an international convention on service, Plaintiffs did not need to attempt service in accordance
with § 1608(a)(1) or (a)(2). See Fritz, 320 F. Supp. 3d at 88; Ben-Rafael v. Islamic Republic of
Iran, 540 F. Supp. 2d 39, 52 (D.D.C. 2008). Plaintiffs tried to serve Syria under § 1608(a)(3) in
March 2016 and July 2018, respectively. ECF No. 8; ECF No. 9, Foley, No. 18-cv-1625 (D.D.C.
July 31, 2018). When that failed, they each started service through diplomatic channels under
§ 1608(a)(4) by diplomatic note forwarded by the State Department to the Foreign Interests
Section of the Embassy of the Czech Republic. ECF No. 15; ECF No. 13, Foley, No. 18-cv-
1625 (D.D.C. Aug. 14, 2018). Although Syria refused to accept delivery, service was still
proper. See Fritz, 320 F. Supp. 3d at 89; Ben-Rafael, 540 F. Supp. 2d at 52–53.
Because the Court has subject-matter jurisdiction over Plaintiffs’ claims and Plaintiffs
properly served Syria under 28 U.S.C. § 1608(a), the Court has personal jurisdiction over Syria
under 28 U.S.C. § 1330(b).
C. Syria’s Liability
Having already concluded that the Court possesses subject-matter jurisdiction, little else
is needed to show that Plaintiffs are entitled to relief. 28 U.S.C. § 605A(c). 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, 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
26
as a matter of federal law” if the plaintiff is a citizen of the United States. Fritz, 320 F. Supp. 3d
at 86-87; see Hekmati v. Islamic Republic of Iran, 278 F. Supp. 3d 145, 163 (D.D.C. 2017)
(“Essentially, liability under § 1605A(c) will exist whenever the jurisdictional requirements of §
1605A(a)(1) are met.”).
As already mentioned, Plaintiffs are U.S. citizens. 28 U.S.C. § 1605A(h)(5); 8 U.S.C.
§ 1101(a)(22). As a result, they may rely on the cause of action in the terrorism exception to
establish Syria’s liability. See Owens, 864 F.3d at 809. And because they have proven that the
state-sponsored terrorism exception abrogates Syria’s sovereign immunity and that this Court has
subject-matter and personal jurisdiction, they have also shown that Syria is liable to them for the
hostage taking, torture, and extrajudicial killing of Foley and Sotloff.
IV. Conclusion
For all the above reasons, the Court will grant Plaintiffs’ Motion for Default Judgment,
ECF No. 34. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 15, 2021
27