Baarbé v. The Syrian Arab Republic

679 F.Supp.3d 303

Cameron Cain BAARBÉ, et al., Plaintiffs, v. The SYRIAN ARAB REPUBLIC, Defendant.

CASE NO. 5:20-CV-230-BO

United States District Court, E.D. North Carolina, Western Division

May 30, 2023

Signed June 28, 2023

Robert J. Tolchin, The Berkman Law Office, LLC, Brooklyn, NY, Christopher S. Battles, Nelson Mullins Riley & Scarborough, LLP, Raleigh, NC, Kieran J. Shanahan, Shanahan Law Group, PLLC, Raleigh, NC, for Plaintiffs.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE

Plaintiffs respectfully submit the following Proposed Findings of Fact and Conclusions of Law in support of their Motion for Default Judgment against the Syrian Arab Republic ("Syria") pursuant to 28 U.S.C. § 1608(e); and their request to refer the assessment of damages to a special master pursuant to 28 U.S.C. § 1605A(e).

I. PROCEDURAL POSTURE

This is a civil action for damages pursuant to the Foreign Sovereign Immunities Act ("FSIA") 28 U.S.C. § 1602 et seq. Plaintiffs are the estate and family of U.S. national Nohemi Gonzalez murdered in a terror attack on November 13, 2015, the family and estate of U.S. national Abvraham¹ Goldman murdered in a terror attack on March 19, 2016, the estate and family of Alexander Pinczowski murdered in a terror attack on March 22, 2016, and the estate and family of U.S. national Erez Orbach murdered in a terror attack on January 8, 2017. Plaintiffs are also the survivors of the terror attacks on March 19, 2016 and January 8, 2017 and their families. Plaintiffs filed this action on June 2, 2020 against Syria. (Dkt. 1). Plaintiffs amended the complaint on October 13, 2020. (Dkt. 44). Plaintiffs assert a cause of action under the FSIA, 28 U.S.C. § 1605A(c), as well as causes of action for wrongful death, battery, survival damages, intentional infliction of emotional distress and negligence under Israeli law. Id. at ¶¶ 191-318 (Dkt. 44). Syria did not answer or otherwise appear. Plaintiffs moved for entry of default by the Court against Syria and the Clerk noted the default of Syria on February 25, 2022. (Dkt. 53, 55).

Plaintiffs have presented evidence in the form of an expert declaration by Dr. Daveed Gartenstein-Ross ("Gartenstein-Ross Decl.") regarding Syria's material support to ISIS, as well as ISIS's responsibility for the terror attacks in Istanbul, Paris and Brussels and an expert declaration by Arieh Dan Spitzen, Israel Defense Forces Colonel (ret.) ("Spitzen Decl.") regarding the responsibility of ISIS for the terror attack in Jerusalem. (Dkt. 75, 78). Plaintiffs also rely upon the testimony and reports of Dr. Gartenstein-Ross and Dr. Matthew Levitt in Sotloff v. Syrian Arab Republic, 525 F. Supp. 3d 121 (D.D.C. 2021) (Dkt. 34-1, 34-2, 41, 42), the expert reports by Dr. Gartenstein-Ross in Doe v. Syrian Arab Republic, 2020 WL 5422844 (D.D.C. Sept. 10, 2020) (Dkt. 31-6) and in Fields v. Syrian Arab Republic, 2021 WL 9244135 (D.D.C. Sept. 29, 2021) (Dkt. 16-2), as well as Dr. Levitt's expert report in Winternitz v. Syrian Arab Republic, 2022 WL 971328 (D.D.C. March 31, 2022). (Dkt. 14-2) (Dkt. 98, Ex. 2, 5-8, 10-11). From Sotloff, 525 F. Supp. 3d 121, Plaintiffs further rely upon Ex. 1-11, Ex. 15-25, Ex. 27 from Docket 38 and Docket 37-1, which include government reports, records, and statements about Syria's material support of ISIS.² (Dkt. 98, Ex. 9, 9A-9S). Plaintiffs further rely upon the declarations of Dr. Boaz Shnoor in Force v. Islamic Republic of Iran, et al., 464 F. Supp. 3d 323 (D.D.C. 2020) (Dkt. 34) and Borochov v. Islamic Republic of Iran, et al., 589 F.Supp.3d 15 (D.D.C. 2022)) and the declaration of Dr. Israel Gilead in Henkin v. Islamic Republic of Iran, 2021 WL 291403 (D.D.C. July 12, 2021) (Dkt. 56-2) regarding the application of Israeli law to the claims of a non-U.S. family member of a U.S. national victim, the declaration of Dr. Jean Sébastien Borghetti regarding the application of French law to the claims of José Hernandez, the declaration of Dr. N. Can Isiktac regarding the application of Turkish law to the claims of Pnina Greenfield, Yoseff Goldman, Tamar Choresh's estate and Israel Gorenzsky and the declaration of Dr. Rafaël Jafferali regarding the application of Belgian law to the claims of Alexander Pinczowski's estate. (Dkt. 77, 80, 81, 98, Ex. 15-17, 98, Ex. 15-17). Moreover, Plaintiffs have submitted declarations from each adult Plaintiff regarding the attack as well as their damages and sworn reports from Dr. Rael Strous, a psychiatric expert, regarding Plaintiffs' psychological and emotional damages, and sworn reports by Dr. Alan Friedman regarding Ron Greenfield's, Pnina Greenfield's, Nitzachya Goldman's and Eytan Rund's physical injuries, as well as Nohemi's and Alexander's conscious pain and suffering before death. (Dkt. 79, 82, Ex. N, Q, R, W, 83-85, 88, 89-95, 100-116). Finally, Plaintiffs rely upon an economist to project the economic losses due to the terror attacks that murdered Nohemi and Erez and injured Ron Greenfield. (Dkt. 76). From the entire record, this Court makes the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

A. The Evolution of ISIS The Islamic State — Background

The "Islamic State" (IS) organization also known as ISIS/ISIL (Islamic State of Iraq and Syria/Levant), and DAESH³ is an Al-Qa'ida splinter group with a militant Sunni Islamist ideology.⁴ (Spitzen Decl. ¶ 19) (Dkt. 78).

ISIS is a radical Sunni organization that seeks to restore what they imagine was the era of Prophet Muhammad through holy war (Jihad) against its enemies. (Spitzen Decl. ¶ 21) (Dkt. 78). ISIS maintains that a supranational Islamic Caliphate, modeled after the regimes of the first Caliphs who ruled following the death of Muhammad, should be established. (Spitzen Decl. ¶ 21) (Dkt. 78). It would be ruled by Islamic religious law (the Sharia), according to its strictest interpretation. (Spitzen Decl. ¶ 21) (Dkt. 78). The Caliphate would arise on the ruins of the nation states established in the Middle East after World War I.⁵ (Spitzen Decl. ¶ 21) (Dkt. 78).

For ISIS, the establishment of the Caliphate and the change of the organization's name to the "Islamic State," created the sole legitimate religious and political framework for Muslims in the 21st century.⁶ (Spitzen Decl. ¶ 22) (Dkt 78). IS deems anyone who is not devoted to its ideology as a "Murtad," meaning, an apostate, someone who had believed in Islam but abandoned it, or as a "Kafir," meaning, an infidel. (Spitzen Decl. ¶ 24) (Dkt. 78). IS views those organizations that do not accept its ideology and way of life as illegitimate organizations, against whom a war of annihilation must be waged. (Spitzen Decl. ¶ 24) (Dkt. 78). Categorizing someone who does not accept the ways of IS as an apostate or as an infidel, in effect, is a call for murder. (Spitzen Decl. ¶ 25) (Dkt. 78).

Groups Designated as Foreign Terrorist Organizations

Over the years, the U.S. State Department has designated ISIS-affiliated individuals and entities as terrorists and terror organizations.⁷ (Spitzen Decl. ¶ 27) (Dkt. 78). In August 2017, the U.S. State Department designated over 30 ISIS leaders and operatives in an effort to curtail the terror activity of ISIS.⁸ (Spitzen Decl. ¶ 27) (Dkt. 78). For years, the U.S. Treasury worked to strike at ISIS's sources of funding.⁹ (Spitzen Decl. ¶ 27) (Dkt. 78).

Background: Abu Musab al-Zarqawi

Abu Musab al-Zarqawi is considered ISIS's founder. (Gartenstein-Ross Decl. ¶ 29) (Dkt. 75). ISIS is the most recent iteration of the "Zarqawi organization," a militant group that has undergone name changes since its founding in 1993. (Gartenstein-Ross Decl. ¶ 28) (Dkt. 75) Zarqawi and his network were responsible for some of the worst atrocities committed in Iraq's civil war. (Gartenstein-Ross Decl. ¶ 29) (Dkt. 75).

In 1989, Zarqawi traveled to Afghanistan after undergoing a religious awakening.¹⁰ (Gartenstein-Ross Decl. ¶ 30) (Dkt. 75). Zarqawi went to Afghanistan hoping to fight the Soviet Union but was too late. (Gartenstein-Ross Decl. ¶ 31) (Dkt. 75). While in Afghanistan Zarqawi joined the jihadist movement. (Gartenstein-Ross ¶ 31) (Dkt. 75). Al-Qaeda leader Osama bin Laden was in Afghanistan during Zarqawi's time there, and Zarqawi trained for combat in al-Qaeda' Sada camp, which bin Laden ran.¹¹ (Gartenstein-Ross Decl. ¶ 32) (Dkt. 75). Zarqawi also met fellow Jordanian Abu Muhammad al-Maqdisi in Afghanistan. (Gartenstein-Ross Decl. ¶ 32) (Dkt. 75). Maqdisi is a renowned Salafist cleric who became Zarqawi's ideological mentor. (Gartenstein-Ross Decl. ¶ 32) (Dkt. 75). Zarqawi also built relationships with other jihadists in Afghanistan that allowed him to form the "Zarqawi organization," which became known as ISIS after his death. (Gartenstein-Ross Decl. ¶ 32) (Dkt. 75).

Bayat al-Imam/Tawhid wa-l-Jihad

While in Afghanistan, Zarqawi and Maqdisi established their own militant Islamist group, known as Bayat al-Imam. (Gartenstein-Ross Decl. ¶ 33) (Dkt. 75). But members of the group reportedly referred to it instead as Tawhid wa-l-Jihad (Monotheism and Jihad, or TwJ). (Gartenstein-Ross Decl. ¶ 33) (Dkt. 75). The group wanted to overthrow Jordan's monarchy and replace it with an Islamic government. (Gartenstein-Ross Decl. ¶ 33) (Dkt. 75).

Zarqawi and Maqdisi returned to Jordan in 1993 and authorities arrested them in 1994. (Gartenstein-Ross Decl. ¶ 34) (Dkt. 75). Both men were convicted on terrorism charges and sentenced to 15 years in prison.¹² (Gartenstein-Ross Decl. ¶ 34) (Dkt. 75). The Zarqawi organization was very influential in prison.¹³ (Gartenstein-Ross Decl. ¶ 35) (Dkt. 75). In 1999, King Abdullah II declared a general amnesty for Jordanian prisoners, and Zarqawi and Maqdisi were released. (Gartenstein-Ross ¶ 37) (Dkt. 75).

Two weeks after his arrival in Kandahar, Zarqawi met with Saif al-Adl, who was al-Qaeda's security chief.¹⁴ (Gartenstein-Ross Decl. ¶ 38) (Dkt. 75). Adl played an important role in al-Qaeda's partnership with...