Force v. Islamic Republic of Iran

• Court: District Court, District of Columbia
• Decided: May 31, 2020
• Docket: Civil Action No. 2016-1468
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TAYLOR FORCE, et al.,

Plaintiff,

v. Civil Action No. 16-1468 (RDM)

THE ISLAMIC REPUBLIC OF IRAN, et al.,

Defendant.

MEMORANDUM OPINION AND ORDER

This civil action for compensatory and punitive damages arises under the terrorism

exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A. The fifty-

seven plaintiffs are the victims of seven separate terrorist attacks that took place in Israel

between March 6, 2008 and March 8, 2016, and their family members. Most of the plaintiffs are

U.S. citizens (including dual U.S.-Israeli nationals), although some are not. Defendants include

the Islamic Republic of Iran, the Iranian Ministry of Information and Security (“MOIS”), and the

Syrian Arab Republic. Plaintiffs assert that their injuries were caused by Iran and Syria’s

provision of material support to two terrorist organizations—Hamas and Palestinian Islamic

Jihad (“PIJ”).

To establish subject-matter jurisdiction, Plaintiffs invoke the state-sponsored terrorism

exception to the FSIA, 28 U.S.C. § 1605A(a). The forty-four U.S.-citizen plaintiffs, see Dkt. 87

at 41, also rely on another provision of the statute to supply a federal cause of action: They argue

that Iran and Syria violated § 1605A(c) by providing “material support” to Hamas and PIJ,

which, in turn, engaged in the extrajudicial killing (or attempted extrajudicial killing) of U.S.

nationals in the seven attacks at issue. Dkt. 1 at 28–31 (Compl. ¶¶ 116–31). Plaintiffs also assert claims for negligence and aiding and abetting under Israeli law. Id. at 31–34 (Compl. ¶¶ 132–

51). None of the Defendants has answered or otherwise appeared in this action. Consequently,

at Plaintiffs’ request, the Clerk of the Court entered defaults against all three Defendants. Dkt.

23; Dkt. 24.

Plaintiffs subsequently moved for the entry of a default judgments against the Islamic

Republic of Iran, MOIS, and the Syrian Arab Republic, Dkt. 91, and for the appointment of a

special master to conduct damages proceedings, Dkt. 85 at 1, 21–22. As explained below, the

U.S. national plaintiffs, with the exception of the Parnases, have established their right to relief

against Iran, but not Syria, under 28 U.S.C. § 1605A(a). The Court further concludes that the

non-U.S.-citizen plaintiffs—with the exception of M.H.B and Y.A.L.B., who were born after the

attack that injured their father—are entitled to recover under the law of Israel for negligence and

aiding and abetting. The Court will, accordingly, DENY the motion for entry of default

judgment as to all claims by the Parnases without prejudice. The Court will also DENY the

motion for entry of default judgment as to all claims by M.H.B. and Y.A.L.B., who are

represented by their parents, Schmuel and Nechama Brauner, without prejudice. As to the

remaining fifty-one Plaintiffs, the Court will GRANT the motion as to their claims against the

Syrian Arab Republic, the Islamic Republic of Iran and MOIS, see 28 U.S.C. § 1608(e), and will

APPOINT a special master to hear their damages claims and to report to the Court

recommending the appropriate award as to those plaintiffs.

I. INTRODUCTION

Plaintiffs, forty-four U.S. nationals (or their estates) and thirteen non-U.S. nationals bring

this action for damages against the Islamic Republic of Iran, MOIS, and the Syrian Arab

Republic. They allege that both countries “gave substantial aid, assistance[,] and encouragement

2 to . . . Hamas and PIJ . . . with the specific intention of causing and facilitating the commission of

acts . . . including the terrorist attacks at issue.” Dkt. 1 at 14, 18 (Compl. ¶¶ 53, 66). Plaintiffs

effected service on the Syrian Arab Republic on November 14, 2016, Dkt. 15, and on the Islamic

Republic of Iran and the MOIS on July 19, 2017, Dkt. 20. None of the Defendants has

answered, filed a motion under Federal Rule of Civil Procedure 12, or otherwise appeared. See

Dkt. 21; Dkt. 22. Accordingly, at Plaintiffs’ request, the Clerk of the Court declared all

Defendants in default on November 14, 2017. See Dkt. 23; Dkt. 24.

Plaintiffs now seek entry of a default judgment with respect to liability against all three

Defendants pursuant to Federal Rule of Civil Procedure 55. Dkt. 91. Even in a garden variety

case, the entry of a default judgment “is not automatic,” Mwani v. bin Laden, 417 F.3d 1, 6 (D.C.

Cir. 2005), and requires the exercise of “sound discretion,” Boland v. Yoccabel Const. Co., Inc.,

293 F.R.D. 13, 17 (D.D.C. 2013) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)).

Most notably, the Court must—at a minimum—satisfy itself that it has subject-matter

jurisdiction over the claims and personal jurisdiction over the defendants. See Jerez v. Republic

of Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014) (“A default judgment rendered in excess of a

court’s jurisdiction is void.”); Mwani, 417 F.3d at 6 (explaining that the Court must “satisfy itself

that it has personal jurisdiction before entering judgment against an absent defendant”).

In cases brought against a foreign state, however, the Court’s discretion to enter a default

judgment is more narrowly circumscribed. By statute, no federal or state court may enter a

default judgment against a foreign state or instrumentality “unless the claimant establishes his

claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). This is the

same standard that applies to default judgments against the United States under Federal Rule of

Civil Procedure 55(d). See Owens v. Republic of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017)

3 (“Owens IV”), vacated in part and remanded on other grounds sub nom. Opati v. Republic of

Sudan, No. 17-1268, 2020 WL 2515440 (U.S. May 18, 2020); Hill v. Republic of Iraq, 328 F.3d

680, 683 (D.C. Cir. 2003). In a case, such as this, alleging that a foreign state materially

supported acts of terrorism, the district court must determine “how much and what kinds of

evidence the plaintiff must provide.” Han Kim v. Democratic People’s Republic of Korea, 774

F.3d 1044, 1047 (D.C. Cir. 2014). But the Court must do so in light of Congress’s purpose in

enacting § 1605A—that is, to “compensate[e] the victims of terrorism [so as to] punish foreign

states who have committed or sponsored such acts and [to] deter them from doing so in the

future,” id. at 1048 (quoting Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82,

88–89 (D.C. Cir. 2002)) (first alteration in original)—and the difficulty in obtaining “firsthand

evidence and eyewitness testimony . . . from an absent and likely hostile sovereign,” Owens IV,

864 F.3d at 785. This means that, to obtain a default judgment against Iran, MOIS, and Syria,

Plaintiffs must (1) carry their burden of producing evidence sufficient to show that their claims

fall within the state-sponsored terrorism exception to the FSIA, see 28 U.S.C. § 1605A(a);

Owens IV, 864 F.3d at 784; (2) establish that defendants were served in accordance with the

FSIA, see 28 U.S.C. § 1608(a); and (3) establish their right to relief under federal, see 28 U.S.C.

§ 1605A(c), or state law, Owens IV, 864 F.3d at 809 (“the pass-through approach remains

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

Against this backdrop, the Court held a two-day hearing on liability, Dkt. 104; Dkt. 105,

and received additional evidentiary submissions, Dkts. 21–84, as well as proposed findings of

fact and conclusions of law from plaintiffs, see Dkt 87 (Proposed Findings of Fact); Dkt. 85

(Memorandum of Law). In the course of the hearing, the Court applied the Federal Rules of

Evidence, but did so on the understanding that, first, it has “the authority—indeed, . . . the

4 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)) (modifications in

Han Kim), and, second, that the Court need not “step into the shoes of the defaulting party and

pursue every possible evidentiary challenge,” Owens IV, 864 F.3d at 785. Recognizing that

expert testimony is not only entirely proper, but often sufficient, id. at 788, and even

indispensable in “terrorism cases . . . because firsthand evidence of terrorist activities is difficult,

if not impossible to obtain,” id. at 787, the Court also considered the extensive expert testimony

Plaintiffs presented. 1 Whether through expert testimony or other competent evidence, the Court

must ultimately determine whether the Plaintiffs have “substantiate[d] [the] essential element[s]

of jurisdiction” with admissible evidence. Id. at 786.

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

II. FINDINGS OF FACT

Plaintiffs’ evidentiary presentation included testimony from five experts and a dozen

exhibits. See Dkt. 104, Dkt. 105. The Court heard from Dr. Matt Levitt, an expert on “Iranian

sponsorship of terrorism including Hamas and [PIJ],” Dkt. 104 at 10 (Levitt); Colonel Arieh

Spitzen, an expert on “Palestinian terror groups that operate within the Palestinian territories,” id.

at 53 (Spitzen); Dr. Benedetta Berti, the head of policy planning for the Secretary General of

NATO, Dkt. 105 at 5, 8 (Berti), and an expert on Syrian support for Hamas and PIJ, id. at 8

(Berti); Dr. Patrick Clawson, an expert on Iranian support for Hamas, id. at 60 (Clawson); and

Dr. Marius Deeb, an expert on Syrian support for terrorism, specifically for Hamas and PIJ, id. at

96–97 (Deeb).

1 The Court has reviewed the qualifications of Plaintiffs’ expert witnesses and concludes that each is qualified to offer the opinions discussed below. Dkt. 104 at 10 (Levitt); id. at 53 (Spitzen); Dkt. 105 at 8 (Berti); id. at 60 (Clawson); id. at 96–97 (Deeb). 5 Based on the testimony of these witnesses, trial exhibits, and declarations submitted by

Plaintiffs, the Court finds as follows: First, Iran provided Hamas and PIJ with significant

support in the form of arms and financial assistance, as well as training and technical expertise.

Second, Syria provided both groups with a safe operational base from which to run their

organizations. Third, Hamas carried out six of the seven terror attacks at issue: (1) the March 8,

2016 stabbing of Plaintiff Taylor Force, which resulted in his death; (2) the January 27, 2016

stabbing of Plaintiff Menachem Mendel Rivkin, which resulted in severe physical injuries; (3)

the October 13, 2015 bus massacre, which resulted in the death of Plaintiff Richard Lakin; (4)

the August 19, 2011 rocket attack, which led to the injury of Schuel Brauner; (5) the November

21, 2012 rocket attack, which resulted in emotional injury to Plaintiffs Daniella Parnas, Noa

Parnas, Dana Parnas, and A.P; (6) the March 6, 2008 Shooting at Merkaz HaRav Yeshiva, which

resulted in the death of Plaintiff Avraham David Moses and severe physical injury to Plaintiff

Naftali Shitrit. Fourth, the Court concludes that PIJ carried out the October 28, 2014 shooting of

Yehudah Glick, resulting in his severe physical injuries.

A. Iran’s Material Support to Hamas and PIJ

1. Overview of Iran’s Proxy Strategy

Since the Islamic Revolution in 1979, the Islamic Republic of Iran, led by its Supreme

Leader, has actively opposed Israeli interests in the Middle East. Dkt. 32 at 7–8, 10–14

(Clawson Decl. ¶¶ 19, 27–28, 30). One of the primary means by which Iran conducts this

geopolitical strategy is by supporting non-state actors, including Hamas and PIJ, which share

Iran’s opposition to Israeli interests in the region. Id. at 14 (Clawson Decl. ¶¶ 30–31); Dkt. 31 at

10–11 (Levitt Decl. ¶¶ 19, 22) (Hamas’s opposition to Israel); Id. at 46–47 (Levitt Decl. ¶¶ 90–

91, 93). Iran has also, at times, encouraged individuals sharing Iran’s goals of destroying the

6 state of Israel to conduct “lone wol[f]” attacks and has offered money to the families of suicide

bombers who terrorize Israeli civilians. Id. at 13 (Clawson Decl. ¶ 28). As a result, the United

States has, since 1984, continuously designated Iran as a state sponsor of terrorism. Id. at 10

(Clawson Decl. ¶ 27).

2. Iran’s Material Support to Hamas

Hamas is both an acronym for “Harakat al-Muqawama al-Islamiya,” which translates to

“Islamic Resistance Movement,” and is an Arabic word meaning “zeal.” Dkt. 31 at 10 (Levitt

Decl. ¶ 19) (italics and internal quotation marks omitted). Founded in 1987, Hamas aims to

“establish[] in [Israel’s] place an Islamist state.” Id. at 10–11 (Levitt Decl. ¶¶ 19, 22). Hamas

“employs a three-pronged strategy to achieve this goal: (1) social welfare activity that builds

grassroots support for the organization, (2) political activity that competes with the secular

Palestinian Authority,” and (3) “terrorist attacks that target Israeli soldiers and civilians.” Id. at

10 (Levitt Decl. ¶ 19).

Hamas deploys a wide variety of types of attacks, “from shooting[s], bombing[s],

stabbing[s], and vehicular attacks, to suicide operations and rocket barrages fired at Israeli

civilian population centers.” Id. at 12 (Levitt Decl. ¶ 23). While the intended goal is to terrorize

the Israeli population, Hamas’s attacks have killed individuals from around the world, including

“from the United States, the United Kingdom, Ukraine, Romania, China, the Philippines and

Sweden.” See id. at 11 (Levitt Decl. ¶ 22). “Without the significant funding it needs to carry out

its terrorist, political, and social activities—which are interdependent and mutually reinforcing

endeavors—Hamas could not function.” Id. at 21 (Levitt Decl. ¶ 41). “Estimates of Hamas’[s]

total annual budget range from $30 million to $90 million a year.” Id. at 23 (Levitt Decl. ¶ 45)

7 Although the extent and nature of Iran’s support for Hamas has varied over time, there is

near-universal agreement that Iran has provided “critical” material support—in the form of cash,

weapons, and training—for Hamas’s terrorist activities since at least the mid-1990s. Id. at 21

(Levitt Decl. ¶ 41); see also id. at 29 (Levitt Decl. ¶¶ 58–59); Dkt. 32 at 14 (Clawson Decl. ¶ 30);

Dkt. 31 at 38 (Levitt Decl. ¶ 76); id. at 37 (Levitt Decl. ¶¶ 73–7) (explaining that, even during a

falling out over the Syrian civil war, “Iranian funding for Hamas never completely stopped”).

Both Hamas and Iran have repeatedly acknowledged the support that Iran provides. See, e.g.,

Dkt. 31 at 27 (Levitt Decl. ¶¶ 54–55) (collecting exemplary statements from Hamas leadership);

Dkt. 32 at 23–24 (Clawson Decl. ¶ 58) (quoting Supreme Leader Khameini saying that “Iran

. . . aids Hamas . . . in Palestine”). Beyond finances and weapons, “Iran also provides logistical

support to Hamas and military training to its members,” and oversees training camps in its own

territory and in Lebanon for the purpose of training Hamas members. Id. at 29 (Levitt Decl. ¶ 58

(citation omitted)).

Iran began providing financial and logistical support for Hamas in the 1990s because of

“Hamas’[s] willingness to perpetrate terrorist activities and bus bombings”—attacks that Iran

encouraged and praised. Dkt. 32 at 14–15 (Clawson Decl. ¶¶ 35, 37). In these years, “Iran gave

Hamas millions of dollars,” which supported Hamas’s terrorist activities, and “provid[ed]

legitimate front activities behind which Hamas could hide its terrorist activities.” Id. at 15

(Clawson Decl. ¶ 38); see also Dkt. 31 at 29–30 (Levitt Decl. ¶ 59) (summarizing different

countries’ estimates). During this period, Iran paid Hamas “generously” for successful terrorist

attacks. Dkt. 32 at 15 (Clawson Decl. ¶ 38). Iran also began smuggling rockets and weapons to

Hamas in Gaza through tunnels between Egypt and Gaza. Id. at 19 (Clawson Decl. ¶ 50)

8 (quoting Yoram Cohen & Matthew Levitt, Washington Institute for Near East Policy, Hamas

Arms Smuggling: Egypt’s Challenge (March 2, 2009), available at https://www.washington

institute.org/policy-analysis/view/hamas-arms-smuggling-egypts-challenge); Dkt. 31 at 34

(Levitt Decl. ¶ 66). Iran also specially designed rockets that could fit through these tunnels for

the purposes of smuggling them from Egypt into Gaza. Dkt. 32 at 19 (Clawson Decl. ¶ 51).

In 2006, Hamas won a plurality of seats in the Palestinian parliament, prompting

“Iranian support, finances, and arms [to] r[i]se exponentially.” Id. at 16 (Clawson Decl. ¶ 42).

Israel’s Intelligence and Terrorism Information Center reported that Iran “pledge[d] . . . $250

million to Hamas’s Prime Minister Ismail Haniya in 2006 and 2007.” Id. (citing Intelligence and

Terrorism Information Center, Iranian Support of Hamas 20–21 (Jan. 2009)). In 2007, the Iran-

Hamas relationship grew even closer after . . . Hamas took complete control of the Gaza Strip.”

Id. at 17 (Clawson Decl. ¶ 43). Since 2008, “Gaza-based Palestinian groups have fired over

8,500 rockets into Israel,” and Hamas has claimed credit for at least some of these attacks. Dkt.

31 at 13 (Levitt Decl. ¶ 25). Iranian officials, in turn, have claimed credit for providing Gaza-

based groups with the technical expertise to “produce these missiles by themselves in large

quantities.” Id. at 36 (Levitt Decl. ¶ 72 (citation omitted)); see also Dkt. 32 at 20–21 (Clawson

Decl. ¶ 53) (detailing multiple intercepted efforts to smuggle arms into Gaza between 2009 and

2011 and those efforts’ links to the Iranian government); Dkt. 31 at 34–37 (Levitt Decl. ¶¶ 66,

68, 72) (detailing, from multiple intelligence sources, Iran’s provision of weapons to Hamas,

specifically, from 2008 to 2012).

Around 2012, relations between Hamas and Iran cooled for several years as they took

opposite sides of the Syrian Civil War, with Iran backing the Syrian regime led by Bashar Al-

Assad and Hamas supporting certain rebel groups. Dkt. 31 at 37 (Levitt Decl. ¶ 73). “[Y]et,

9 Iranian funding for Hamas never completely stopped,” id. (Levitt Decl. ¶ 74), and even as Iran

decreased its support for Hamas’s political activities, its military activities were “not as badly

affected.” Id. at 37–38 (Levitt Decl. ¶ 74). By 2014, however, relations with Iran improved and

Hamas found itself in an escalating conflict with Israel, during which many “of the arms Hamas

deployed were the products of the Islamic Republic of Iran.” Id. at 38 (Levitt Decl. ¶ 76

(quotation marks and citation omitted)). That year, Israel intercepted a cargo ship believed to be

headed to the Gaza Strip, carrying “40 M-302 rockets, 180 mortars, and approximately, 400,000

rounds of ammunition,” all “hidden inside crates of cement labeled ‘Made in Iran.’” Id. at 14

(Levitt Decl. ¶ 27) (citing Israeli Ministry of Foreign Affairs, Missile Shipment from Iran to

Gaza Intercepted, (Mar. 5, 2014), https://mfa.gov.il/MFA/PressRoom/2014/Pages/Missile-

shipment-from-Iran-to-Gaza-intercepted-5-Mar-2014.aspx). And, by 2015, Iran was reported to

be sending literal “suitcases of cash . . . to Hamas’[s] military wing in Gaza,” id. at 42 (Levitt

Decl. ¶ 84) (citation omitted), and was reportedly continuing to “provid[e] missile technology

that Hamas used to construct its own rockets and [to] help[] [Hamas] rebuild tunnels destroyed in

the conflict with Israel.” Dkt. 31 at 39 (Levitt Decl. ¶ 78) (citation omitted).

Accordingly, based on the unrebutted testimony offered by the Plaintiffs’ experts, the

Court finds that Iran provided material support in the form of arms, training, funds, and

technology to Hamas at least from 2006 to 2016.

3. Iran’s Material Support to PIJ

PIJ—short for Palestinian Islamic Jihad or Al-Jihad Al-Islami fi Filastin—grew out of a

Palestinian student movement in Cairo led, most notably, by Fathi Shiqaqi. Dkt. 31 at 46–47

(Levitt Decl. ¶¶ 90, 93). Shiqaqi, inspired by the 1979 Iranian Revolution, “believed that a

campaign of spectacular terrorist attacks against Israel in the name of revolutionary Islam would

10 inspire popular revolt” and lead to the destruction of Israel. Id.; see also id. at 46 (Levitt Decl. ¶

91). PIJ began carrying out attacks—financed by “Iran’s mullahs”—against Israeli soldiers in

the mid-1980s. Id. at 47 (Levitt Decl. ¶ 93). By the 1990s, PIJ operatives were training at

Iranian-backed Hezbollah camps in Lebanon, under “under the supervision” of Iranian Islamic

Revolutionary Guards stationed in that country. Id. at 48 (Levitt Decl. ¶ 95). PIJ executed “a

deadly string of terrorist attacks” in Israel up until Shiqaqi’s assassination in October 1995,

which created “a void in the organization so deep that,” by 1997, “the group barely

function[ed].” Id. at 50–51 (Levitt Decl. ¶ 101) (citation omitted). Following the collapse of

Israeli-Palestinian peace talks in 2000, PIJ bomb makers and recruiters were released en masse

from jail, leading to the group’s resurgence. Id. at 51 (Levitt Decl. ¶ 102). From September

2002 to October 2003, PIJ “carried out over 440 terrorist attacks, including suicide bombings . . .

, killing over 130 Israelis and wounding approximately 880 more.” Id. (Levitt Decl. ¶ 103). The

U.S. Department of State has, accordingly, designated PIJ as a foreign terrorist organization each

year since 1997. Id. at 52–53 (Levitt Decl. ¶ 107).

There is evidence that Iran has been funding PIJ since as early as 1993, Id. at 54 (Levitt

Decl. ¶ 110), but Iran’s support of PIJ increased as PIJ carried out more successful attacks in the

early 2000s, id. at 53 (Levitt Decl. ¶ 108) (explaining Iran’s promise to increase funding for PIJ

by 70 percent in 2002 “to cover the expense of recruiting young Palestinians for suicide

operations” (citation omitted)); see also id. (“Tehran instituted an incentive system in which

millions of dollars in cash bonuses are conferred to [PIJ] for successful attacks.”). In 2011, as

the “wedge” was developing between Hamas and Iran over the Syrian civil war, Iran further

increased its support for PIJ. Id. at 54–55 (Levitt Decl. ¶ 112).

11 Iran’s support for PIJ has included “weapons, training, and funding.” Id. at 55 (Levitt

Decl. ¶ 112) (quoting U.S. Dep’t of State, Bureau of Counterterrorism, Country Reports on

Terrorism 2014 (June 2015)). In 2014, Israeli authorities intercepted a ship carrying mortars,

bullets, and rockets “destined for Hamas and PIJ in Gaza” that were packed in containers

featuring “seals of the Iranian postal company.” Id. (citations omitted). This is consistent with

PIJ’s own spokesman’s acknowledgment that “[a]ll of the weapons in Gaza are provided by Iran,

be they weapons intended for the Hamas movement or for the PIJ.” Id. (Levitt Decl. ¶ 113)

(citation omitted); see also id. at 56 (Levitt Decl. ¶ 115) (collecting statements confirming Iran’s

support for PIJ).

In August 2014, Israel and Hamas brokered a ceasefire in Gaza, increasing PIJ’s interest

in expanding its activities to the West Bank. Dkt. 32 at 28 (Clawson Decl. ¶ 67). In mid-

October 2014, PIJ leader Ramadan Abdullah Mohammad Shallah traveled to Tehran to meet

with a series of high-ranking Iranian officials, including Supreme Leader Khamenei. Id. at 28–

29 (Clawson Decl. ¶ 68). These meetings, which took place just two weeks before the shooting

of Plaintiff Yehuda Glick in Jerusalem by a PIJ member, focused on the need for PIJ to expand

into the West Bank. Id. at 28 (Clawson Decl. ¶¶ 67–68).

Accordingly, the Court finds that Iran provided material support to PIJ until at least the

end of 2014.

B. Syria’s Material Support to Hamas and PIJ

1. Overview of Syria’s Proxy Strategy

Syria’s government has “long held the belief that becoming involved [in] and having a

strong influence on the dynamics of the Israeli-Palestinian conflict is an important foreign policy

interest for Syria.” Dkt. 29 at 11 (Berti Decl. ¶ 21). Syria has, since the 1970s, been ruled by the

12 Al-Assad family and their allies, who are members the minority Alawi (Shia) sect. Id. at 10–11

(Berti Decl. ¶¶ 19–21). Accordingly, the Syrian government has had a “constant need to

legitimize its power” to both the Sunni majority in Syria and to Sunni regimes in the region. Id.

(Berti Decl. ¶ 20). To do so, the Syrian government has tried to be “seen as a key champion of

Palestinian rights.” Id.

This geopolitical strategy also aligns with Syria’s own interests vis-à-vis Israel. “[T]he

two countries have been in a state of latent (and at times open) conflict since 1948.” Id. During

the Six-Day War in 1967, Israel seized portions of the Golan Heights, which had previously been

under Syrian control. Id. Syria has consistently demanded “the return of the areas of the Golan

Heights that have been under Israeli control as a result of . . . the Six-[D]ay war.” Id.

Accordingly, while “in principle” Syria is not opposed to “a political settlement” of Israel’s

conflicts with it or the Palestinians, it has, “in practice . . . demonstrated its willingness to

criticize and derail any peace process or negotiations” that it finds to be unfavorable. Id. at 11

(Berti Decl. ¶ 21). For example, in 1993, “Syria became the de facto political and

communication base of all the main factions” opposing the Oslo Accords, id. at 12 (Berti Decl. ¶

24), which were a series of agreements signed between the Palestinian Liberation Organization

and Israel that created the Palestinian Authority, Dkt. 30 at 5 (Deeb Decl. ¶ 16). Due in part to

Syrian President Hafez Al-Assad’s “personal . . . antagonism” with PLO and Fatah leader Yassar

Arafat, Syria “sponsored the creation of the Alliance of Palestinian Forces,” an umbrella group

of organizations—including both Hamas and PIJ—that opposed to the Oslo Accords. Dkt. 29 at

12 (Berti Decl. ¶ 24).

13 2. Syria’s Support to Hamas

Syria’s relationship with Hamas dates back to at least the early 1990s, when Hamas

“opened an office in Damascus.” Id. at 12 (Berti Decl. ¶ 23). That relationship was strengthened

by Hamas’s participation in Syria’s coordinated campaign opposing the Oslo Accords in 1993.

Id. at 12–13 (Berti Decl. ¶ 24). By the early 2000s, Hamas had moved its political bureau to

Damascus, id. at 13 (Berti Decl. ¶ 25), and three of the group’s top leaders—all of whom were

classified as Specially Designated Global Terrorists by United States Department of Treasury—

had relocated to Damascus, id. at 19–20 (Berti Decl. ¶ 34). In 2002, one Israeli newspaper

reported that Syria “offer[ed] aid as an incentive for Hamas . . . to resume and intensify suicide

attacks against Israel . . . , following efforts to diffuse the conflict.” Id. at 25–26 (Berti Decl. ¶

45) (citing Ze’ev Schiff, Sources Say Syria Pushing Hamas to Renew Attacks, Ha’aretz (May 20,

2002), available at http://www.haaretz.com/sources-say-syria-pushing-hamas-to-renew-attacks-

1.44698).

Until 2012, Damascus served as a “safe base,” enabling Hamas to “conduct its foreign

relations, communicate to the world, host its military leaders . . . [, and] plan its violent

operations and fundraise.” Id. at 15 (Berti Decl. ¶ 28); see Dkt. 30 at 5–6 (Deeb Decl. ¶ 19)

(Damascus was Hamas’s “safe haven”). From its operational base in Damascus, Hamas directed

attacks in the West Bank and Gaza, Dkt. 29 at 23 (Berti Decl. ¶ 41), conducted foreign relations,

id. at 15 (Berti Decl. ¶ 28), and trained operatives at a camp near Damascus, id. at 31 (Berti Decl.

¶ 55). Hamas’s base in Damascus “grew so powerful that it was able to control and direct

operational decisions, at times even going against the wishes of Hamas’s leaders within Gaza.”

Dkt. 30 at 6 (Deeb Decl. ¶ 19). The Syrian regime did not “forcefully or systematically crack[]

14 down” on these activities but, instead, according to Professor Berti, “remained supportive of

Hamas’s militant activities.” Dkt. 29 at 25 (Berti Decl. ¶ 45).

In addition, Hamas used its operational base in Syria to fundraise in and to smuggle arms

through that country, providing operational support for its activities in Gaza. Id. at 29–30 (Berti

Decl. ¶¶ 52–54). Hamas’s military commander in the West Bank, Jamal Muhammad Farah al-

Tawil, for example, received funds from Hamas leaders in Damascus via an “ad-hoc charity set

up by al-Tawil.” See id. at 29 (Berti Decl. ¶ 52). As Professor Berti further explained, Hamas

routed “weapons shipments originating from Iran . . . through Syria []and from there to Gaza.”

Id. at 29–30 (Berti Decl. ¶ 53). Hamas’s arsenal has also grown “through the use of parts

‘thought to originate in Syria.’” Id. at 30 (Berti Decl. ¶ 53) (citation omitted). More generally,

“Syrian sponsorship and support has enabled Hamas . . . to at times carry out military training in

Syria . . . where operatives have acquired essential tactical skills and knowledge enabling them to

carry out ever more sophisticated attacks.” Id. at 31 (Berti Decl. ¶ 55).

Hamas and Syria’s relationship has, however, been “strained” since 2012 when Hamas

began supporting rebel forces against the Assad regime in the Syrian Civil War. Dkt. 30 at 7

(Deeb Decl. ¶ 22); see Dkt. 29 at 32–33 (Berti Decl. ¶ 56) (discussing their gradual distancing

from one another). Due to the increasing violence used by the Syrian regime against its Sunni

population during the civil war, Hamas eventually left Damascus and relocated its political

headquarters outside of Syria. Dkt. 29 at 32–33 (Berti Decl. ¶ 56). In 2016, Hamas even

“publicly denounce[ed]” Syria’s “tactics and its attacks against the civilian population.” Id. at 33

(Berti Decl. ¶ 56) (citation omitted).

Despite Hamas’s falling out with Syria, the support that Syria provided to Hamas prior to

2012 “solidified Hamas’s organizational structure and transformed it into a leading terrorist

15 organization with the sophistication needed to carry out terror attacks.” Dkt. 30 at 9 (Deeb Decl.

¶ 30); see Dkt. 29 at 34 (Berti Decl. ¶ 59). And, by “hosting [Hamas], Syria offered symbolic

validation, political support, legitimacy and freedom of [movement], all of which enabled

[Hamas] to grow and develop, to boost regional status and credibility, as well as to increase [its]

military capabilities and solidify [itself] as [a] major player[] in the Palestinian arena.” Dkt. 29

at 21 (Berti Decl. ¶ 37). “The substantial organizational support [that] Syria [once] provided to

Hamas . . . ultimately enabl[ed] it to rise in status and sophistication.” Id. at 34 (Berti Decl. ¶

59–60). Thus, according to Professor Berti, “the effects of Syria’s support . . . will continue to

be relevant for years to come.” Id.

The Court therefore finds that Syria provided support, in the form of an undisturbed

operational base in that country from which Hamas raised funds, trained operatives, smuggled

arms, and conducted its political and foreign relations activities, until at least 2012.

3. Syria’s Support to PIJ

PIJ similarly benefitted from a safe operating base in Syria and the political legitimacy

and regional influence that came with Syria’s welcome. See id. at 21 (Berti Decl. ¶ 37). PIJ

established its Damascus office in 1989 and, “[s]ince then, the group has maintained a permanent

base in Syria.” Id. at 17 (Berti Decl. ¶ 32). PIJ leadership in Damascus “control[led] all PIJ

officials, activists and terrorists in the West Bank and Gaza.” Id. at 25 (Berti Decl. ¶ 44)

(quoting U.S. Dep’t of Treasury, Treasury Designates Charity Funneling Money to Palestinian

Islamic Jihad (April 5, 2005), available at https://www.treasury.gov/press-center/press-

releases/Pages/js2426.aspx). From Damascus, PIJ leadership also “conducted a vast array of

communication, political, fundraising, [and] operational activities.” Id. PIJ, like Hamas, has

also maintained a training facility—which reportedly also contains weapons depots—near

16 Damascus. Id. at 31 (Berti Decl. ¶ 55). Beyond merely “open[ing] Damascus” to PIJ, the Syrian

regime has, at times, “worried about [PIJ] and [its] leaders’ security.” Id. at 18 (Berti Decl. ¶

34.1).

Unlike Hamas, PIJ aligned itself with the Syrian government, rather than rebel factions,

during the Syrian civil war and thus continues to enjoy Syria’s support. Id. at 33 (Berti Decl. ¶

57). Accordingly, the Court finds that Syria has provided support to PIJ in the form of a safe

operational base from which it has been able to freely fundraise, train operatives, and direct

attacks until at least 2018, when Plaintiffs moved for default judgment.

C. March 8, 2016 Stabbing

1. Killing of Taylor Force

At approximately 6:20 p.m. on March 8, 2016, Bashar Muhammad Abd al-Qader

Masalha exited a mosque and began stabbing passersby in the Port of Jaffa, just south of Tel

Aviv. Dkt. 33 at 49–50 (Spitzen Decl. ¶¶ 128–29). He first stabbed a couple of Russian tourists

near the mosque, id. at 50 (Spitzen Decl. ¶ 129), before moving “in the direction of the Promeade

along the Tel Aviv coast shouting ‘Allahu Akbar,’” id. Masalha approached a group of

American tourists on the boardwalk and repeatedly stabbed Plaintiff Taylor Force (a U.S.

Citizen) in the neck, chest and back. Id.; see also Dkt. 44 at 2 (S. Force Decl. ¶ 12). At the time

of the attack, Taylor, a West Point graduate and U.S. army veteran, was on a trip to Israel with a

group of M.B.A. students from Vanderbilt University’s Owen Graduate School of Management.

Dkt 33 at 49 (Spitzen Decl. ¶ 128); Dkt. 44 at 1–2 (S. Force Decl. ¶¶ 5, 6). He died from his

injuries on the way to the hospital. Dkt. 44 at 2 (S. Force Decl. ¶ 12). Before Masalha was

stopped and killed by the police, he injured ten others. Dkt. 33 at 47–48; Dkt. 33 at 51 (Spitzen

Decl. ¶ 129).

17 The estate of Taylor Force (a U.S. Citizen) is a plaintiff in this case. Dkt. 1 at 5 (Compl.

¶ 5). His father, Stuart Force, mother, Robbi Force, and sister, Kristen Force—all of whom are

U.S. citizens—also seek damages for the “severe psychological, emotional and other personal

injuries” they suffered as a result of his death, including loss of consortium and loss of

solatium. Dkt. 1 at 5–6, 31 (Compl. ¶¶ 5–7, 128); see also Dkt. 42 (K. Force Decl.); Dkt. 43 (R.

Force Decl.); Dkt. 44 (S. Force Decl.).

2. Attribution to Hamas

According to Colonel Arieh Dan Spitzen, an expert on Palestinian affairs and society and

Palestinian Islamic terrorist groups, including Hamas, there is an “unmistakable connection

between the attack and the Hamas organization.” Dkt. 33 at 4, 55 (Spitzen Decl. ¶¶ 1, 144). In

support of his conclusion, he offers three observations.

First, Spitzen explains that the attack along the Tel Aviv Promenade “b[ore] the

hallmarks” of a Palestinian terror attack incited by Hamas, id. at 61 (Spitzen Decl. ¶ 160), and

was “part of [a] . . . wave of Palestinian terror attacks in Israel[] which began in September 2015

and continued until the end of 2016,” id. at 18–24, 51 (Spitzen Decl. ¶¶ 51–69, 130). During this

“wave” of attacks, senior Hamas leaders routinely called on “the Palestinian population to mount

attacks in the form of stabbings, vehicular ramming attacks, and even gunfire” against Israelis.

Id. at 20 (Spitzen Decl. ¶ 57). In February 2016, Khaled Mash’al, the leader of Hamas at the

time, described these attacks as “heroic operations of the young men and women of the Intifada.”

Id. (citation omitted).

Second, Masalha’s background reveals that he was influenced by Hamas’s ideology.

Masalha was from the village of Hajja. Id. at 53–55 (Spitzen Decl. ¶¶ 136, 138–143). Spitzen,

who reviewed Masalha’s Facebook page, testified that “during the months immediately

18 preceding the terrorist attack” Masalha displayed an “increasing religious fervor.” Dkt. 104 at 64

(Spitzen). For instance, “he listened for a long period of time” to the sermons of Sheikh Arifi, a

member of the Muslim Brotherhood (of which Hamas is a branch), who espoused “radical

Islamic religious” ideology consistent with that of Hamas. Id. at 65 (Spitzen); Dkt. 33 at 54–55

(Spitzen Decl. ¶¶ 139, 143). From Masalha’s Facebook activity, Spitzen deduced that, “about a

month before the attack, Masalha was already publicly acknowledging that he sought to die as a

shahid [martyr].” Dkt. 33 at 55 (Spitzen Decl. ¶ 141).

Finally, and most significantly, Hamas took responsibility for the attack. See id. at 55–56

(Spitzen Decl. ¶ 144). The day of the attack, photos and messages from Masalha’s Facebook

account were posted to the PALINFO website, which is identified with Hamas. Id. at 56–57

(Spitzen Decl. ¶ 147). Two days later, a banner was posted on the same website, stating:

“Hamas announces that its son, the Shahid and holy warrior [Mujahid in Arabic] Bashar

Muhammad Masalha, carried out the heroic stabbing operation in Jaffa, in which a Zionist was

killed and 10 others injured.” Id. (Spitzen Decl. ¶¶ 145–147). Masalha’s connection to Hamas

and the movement was made even clearer at his funeral. Id. at 58 (Spitzen Decl. ¶ 150).

According to Spitzen, mourners “were seen bearing Hamas flags and enthusiastic cries of

support for Ahmad Yassin, founder of Hamas, were heard.” Id. The funeral included “speeches

praising Masalha’s operation.” Id. “Palestinian Authority security forces[] also arrested a

number of the funeral’s participants as part of a series of arrests of open Hamas supporters.” Id.

at 58–59 (Spitzen Decl. ¶ 150).

In light of the above, the Court concludes that Taylor Force was the victim of a Hamas

terror attack.

19 D. January 27, 2016 Stabbing

1. Stabbing of Menachem Mendel Rivkin

At around 11:00 p.m. on January 27, 2016, a seventeen-year-old boy named Abada

(Ubada) Abu Ras attacked Plaintiff Menachem Mendel Rivkin (“Menachem”)—an American

citizen—with a knife in the town of Givat Ze’ev. See Dkt. 72 at 1 (M. Rivkin Decl. ¶¶ 1–3); see

also Dkt. 104 at 69 (Spitzen). Menachem and his wife had parked their car at a gas station and

were walking to the restaurant next door. Dkt. 71 at 1 (B. Rivkin Decl. ¶ 3). Unbeknownst to

them, Abu Ras had been following them. Id. Abu Ras appeared “[s]uddenly, out of nowhere,”

and stabbed Menachem two times in the upper left side of his back with a 16 cm knife that he

had concealed in his clothing and then fled the scene. Dkt. 72 at 1 (M. Rivkin Decl. ¶ 3); Dkt. 33

at 62–63 (Spitzen Decl. ¶¶ 163, 165). The attack happened so fast that Bracha did not even see

Abu Ras before he was running away. Dkt. 71 at 1 (B. Rivkin ¶ 4). Menachem called out that

he had been stabbed and collapsed on the ground. Id. at 2 (M. Rivkin Decl. ¶ 4). His wife ran to

get help and “pounded on the door” of the restaurant. Dkt. 71 at 1–2 (B. Rivkin Decl. ¶ 5).

Menachem was eventually “rushed into an ambulance” and taken to Sha’are Tzedek Hospital.

Dkt. 72 at 2 (M. Rivkin Decl. ¶¶ 5–6). Abu Ras attempted to flee the scene but was overpowered

by other people present and handed over to security forces when they arrived. Dkt. 33 at 63

(Spitzen Decl. ¶ 165).

As a result of his wounds, Menachem lost consciousness for one-and-a-half days. Id. at 2

(M. Rivkin Decl. ¶¶ 6–7); see also Dkt. 71 at 2 (B. Rivkin Decl. ¶ 10). He suffered “massive

internal bleeding.” Dkt. 72 at 2–3 (M. Rivkin Decl. ¶¶ 8, 11); see also Dkt. 73-1 at 1 (Friedman

Medical Report). Menachem was treated in the ICU for four days and was discharged from the

hospital after eight days. Id. at 2 (M. Rivkin Decl. ¶ 9); see also Dkt. 73-1 at 2 (Friedman

20 Medical Report). Afterwards, Menachem remained at home for three months because of his

“weak physical and emotional state.” Dkt. 72 at 3 (M. Rivkin Decl. ¶ 12). During this time, he

continued to experience difficulty breathing and was twice hospitalized for breathing

complications arising from the attack. Id. at 3 (M. Rivkin Decl. ¶ 12). To this day, Menachem

“often experience[s] terrible pain” in the location of his scar from the stabbing. Id. at 3 (M.

Rivkin Decl. ¶ 14). The attack still “haunts” him psychologically as well. Id. at 3 (M. Rivkin

Decl. ¶ 15); see also Dkt. 35-38 at 7 (Strous Psychiatric Evaluation of M. Rivkin).

The attack also deeply affected Menachem’s wife and children, all of whom are also

plaintiffs in this action. Bracha Rivkin, Menachem’s wife, who is an Israeli citizen, alleges that

the attack caused her “severe emotional and psychological injuries.” Dkt. 1 at 21 (Compl. ¶ 79).

She was six months pregnant at the time. Dkt. 71 at 1 (B. Rivkin ¶ 2). Bracha and Menachem’s

children—S.S.R., M.M.R., R.M.R., and S.Z.R.—all of whom are American citizens, also seek

damages for their mental and emotional anguish. See Dkt. 1 at 30–31 (Compl. ¶ 127); Dkt. 71 at

3–4 (B. Rivkin Decl. ¶¶ 15, 17–22) (describing effect of attack on their children); Dkt. 72 at 4–5

(M. Rivkin Decl. ¶¶ 18–22) (same).

Based on Abu Ras’s background and statements published on Hamas websites after the

attack, Colonel Spitzen attests that the stabbing of Menachem Rivkin was linked to Hamas. See

Dkt. 33 at 61–72 (A. Spitzen Decl. ¶¶ 162–187).

To begin, Spitzen explains that the attack was planned in advance. Spitzen relies, in

particular, on two photos that Abu Ras uploaded to his Facebook page before the attack. The

first, posted “[s]everal days prior to the attack,” showed him “masked and sitting in a car with

emojis of smiley faces and knives.” Id. at 64 (Spitzen Decl. ¶ 169). The second, posted the night

21 of the attack, was accompanied by the following caption: “I ask Allah to grant me the Shahada

(death of shahid- martyrdom).” Id. at 62 (Spitzen Decl. ¶ 163). According to Spitzen, these posts

show that Abu Ras “inten[ded] to execute the attack during which he was hoping to die” as a

martyr. Id. Abu Ras, moreover, had confided his plan to his cousin. Id. He originally intended

to stab an Israeli soldier “at an IDF checkpoint (known as Al-Jib Crossing), not far from his

village, near Givat Ze’ev.” Id. (Spitzen Decl. ¶ 164). When Abu Ras arrived at the checkpoint,

however, he “noticed that the soldiers . . . were inside the guard post which made it more

difficult . . . to attack them,” so “he turned along a side path to a gas station in Givat Ze’ev in

order to find a Jew, stab him[,] and kill him.” Id. at 62–63 (Spitzen Decl. ¶ 164).

Spitzen further opines that Abu Ras carried out the attack because of his Hamas ideology.

Abu Ras’s father, Aziz Mustafa Abd al-Qader Abu Ras, is a “known Hamas operative,” who has

been “arrested several times by the Israeli security forces.” Id. at 66 (Spitzen Decl. ¶ 173). In

fact, Aziz Abu Ras was among the “450 Hamas members deported in 1992” to Lebanon who are

considered the “fathers of the Hamas organization.” Dkt. 104 at 69–70 (Spitzen). At the

evidentiary hearing, Spitzen testified, moreover, that it is clear that Hamas’s ideology was also

deeply ingrained in Abu Ras. Id. at 70–71 (Spitzen). Based on the forensic evidence in Abu

Ras’s police file, Spitzen noted that Abu Ras’s Facebook page “looks like a Hamas website.” Id.

Prior to the attack, he had uploaded multiple posts expressing admiration for the perpetrators of

terrorist attacks (including stabbings) and his desire to die as a martyr. Dkt. 33 at 67–68 (Spitzen

Decl. ¶ 174). He also “posted photographs that indicate[d] support for Hamas, [and] support for

the Izz a-Din al-Qassam Brigades,” including pictures of “himself carrying the Hamas flags.”

Dkt. 104 at 71 (Spitzen).

22 Multiple other sources confirm Abu Ras’s connection to Hamas. On the day of the

attack, a photo was posted to a Hamas-affiliate website depicting Abu Ras holding a Hamas flag.

Dkt. 33 at 68 (Spitzen Decl. ¶ 176). According to Spitzen, “Hamas social media” also made Abu

Ras’s affiliation “crystal clear,” with references such as, “[l]ike father like son.” Dkt. 104 at 72

(Spitzen). Finally, on Abu Ras’s own website, which was eventually taken down, a “statement

appears in which [] Hamas took responsibility and called him a son of the movement.” Id.

Although Hamas “wouldn’t take official responsibility” during the period of time that these

statements of support appeared, Spitzen explains that this was to protect Abu Ras. Id. at 73

(Spitzen). Had Hamas claimed responsibility, Abu Ras would have faced an additional count in

his indictment for “membership [in] an illegal organization. Id. By suspending its claim of

responsibility, Hamas enabled Abu Ras to accept a plea bargain in which the “count of

membership in a terrorist organization” was not included. Id.

In light of the above, Spitzen opines that Abu Ras “identif[ied] with Hamas and its

ideology[] and committed the [attack] in response to the call of the organization.” Dkt. 33 at 69–

70 (Spitzen Decl. ¶ 178). The Court credits Spitzen’s testimony and concludes that Abu Ras

carried out the stabbing in furtherance of Hamas’s ideology and terrorist agenda.

E. October 13, 2015 “Bus 78 Massacre”

1. Killing of Richard Lakin

On the morning of October 13, 2015, two Hamas operatives, Bilal Omar Mahmoud Abu

Ghanem and Bahaa’ Muhammad Khalil Alyan, boarded Egged bus number 78 in the Armon

Hanatziv neighborhood of Jerusalem. Dkt. 33 at 24–25 (Spitzen Decl. ¶ 70). Abu Ghanem was

armed with a gun, and Alyan carried a knife. Id. at 27 (Spitzen Decl. ¶ 74). They hid their

weapons under their clothing and waited for the bus to pick up other passengers. Id. at 32

23 (Spitzen Decl. ¶ 83). When the bus became full, Abu Ghanem proceeded to the back, where he

shot passengers at close range. Id. (Spitzen Decl. ¶ 84). Alyan used his knife to stab passengers

near the front of the bus. Id. Survivors later reported that the two shouted, “Alluh Akbar” while

attacking passengers, an expression “of the superiority of Allah and His ones” that is “frequently

used . . . by Islamist terrorists.” Id. at 33 (Spitzen Decl. ¶ 84 & n.41).

When the bus driver realized what was happening, he stopped the bus and opened the

doors so that passengers could escape. Id. (Spitzen Decl. ¶ 85). Abu Ghanem and Alyan shut

the doors, however, and continued to stab and shoot the passengers trapped inside. Id. Colonel

Spitzen testified that, even after “the bullets in the gun had been depleted and the knife had

broken inside one of the passenger’s bodies,” Abu Ghanem and Alyan “tried to suffocate the

passengers with their bare hands.” Dkt. 104 at 58 (Spitzen). The massacre ended when Border

Police officers and patrol policemen arrived at the scene and shot both men, killing Alyan. Dkt.

33 at 24–25 (Spitzen Decl. ¶ 70). 2

Nine passengers were injured and two died, including Richard Lakin. Id. (Spitzen).

Lakin was shot in the head and stabbed in the stomach. Id. (Spitzen). He was taken to the

hospital unconscious and in critical condition. Id. (Spitzen). Two weeks later, on October 27,

2015, Lakin succumbed to his injuries. Id. (Spitzen). The estate of Richard Lakin (a U.S.

Citizen), is a plaintiff in this case. Dkt. 1 at 7 (Compl. ¶ 16). His son, Micah Lakin Avni, and

daughter, Manya Lakin—both of whom are U.S. citizens—also seek damages for the “severe

psychological, emotional and other personal injuries” they suffered as a result of his death,

2 Colonel Spitzen testified that his account of the terror attack is based upon “the court file of Abu Ghanem, the file of the Israel police, which contained both forensic findings as well as interrogations of . . . Abu Ghanem himself, and questioning of passengers and passersby who were on the scene.” Dkt. 104 at 58 (Spitzen).

24 including loss of consortium and loss of solatium. Id. at 31 (Compl. ¶ 128); see also Dkt. 54

(Manya Lakin Aff.); Dkt. 55 (Micah Lakin Aff.).

The Bus 78 massacre was part of a wave of terror attacks that began in September 2015,

in the midst of the Jewish High Holidays. Dkt. 33 at 25 (Spitzen Decl. ¶ 71). Although Alyan

did not have any known Hamas affiliation, Abu Ghanem was a known Hamas operative, who

had been imprisoned from September 2013 to October 2014 for his involvement in the Islamic

Bloc, the student wing of Hamas. Id. at 48 (Spitzen Decl. ¶ 126); see also id. at 35–36 (Spitzen

Decl. ¶¶ 91, 94–96); Dkt. 104 at 63 (Spitzen). During his 2013 police interrogation, Abu

Ghanem also admitted that he had “relations with senior members of the military wing of

Hamas,” one of whom was his cousin. Dkt. 104 at 59–60 (Spitzen). Hamas, for its part, publicly

claimed Abu Ghanem as an operative of the organization on its website and referred to him as a

Hamas prisoner. Dkt. 33 at 38 (Spitzen Decl. ¶ 100). After the bus attack, Hamas published that

Abu Ghanem was a “commander in the Islamic Bloc at Al-Quds University in Abu Dis.” Id.

Abu Ghanem denied principal responsibility for the attack, however, after he was

captured. He gave the following account: The night before the attack, Alyan visited him at work

and told him that he (Alyan) had 20,000 shekels for purchasing a firearm to carry out a terror

attack. Id. at 26–27 (Spitzen Decl. ¶ 73). The two were not previously acquainted. Id. at 29

(Spitzen Decl. ¶ 78). Abu Ghanem agreed to take part if Alyan obtained the weapon. Id. at 27

(Spitzen Decl. ¶ 73). The two men met again the next morning at Abu Ghanem’s workplace,

where they found a knife to use during the attack. Id. (Spitzen Decl. ¶ 74). Later that same

morning, Abu Ghanem visited Alyan’s work place, where Alyan showed him the firearm that

Alyan had purchased the night before and how to operate it. Id. Before boarding Egged bus

25 number 78, the men agreed that Alyan would carry the knife and Abu Ghanem would carry the

gun. Id. Because Alyan was shot and killed by the police, Abu Ghanem’s statement is the only

source of information regarding the planning and execution of the attack. Id. at 28 (Spitzen

Decl. ¶ 75).

Colonel Spitzen opines that Abu Ghanem’s account is unreliable. In Colonel Spitzen’s

expert opinion, “Abu Ghanem stood to benefit by placing most of the responsibility for initiating

and planning the attack upon his dead partner.” Id. By pleading ignorance, Abu Ghanem was

also able to “conceal details that might harm [Hamas], its modes of operations[,] and its

operatives.” Id. at 29 (Spitzen Decl. ¶ 77). Moreover, Colonel Spitzen testified at the

evidentiary hearing that Abu Ghanem’s version of events is directly undermined by his conduct

during the attack itself.

First, Colonel Spitzen explained that it was implausible that Abu Ghanem “[had seen] the

gun for the first time about half an hour prior to the terrorist attack[] and received oral

instructions . . . how to use the gun.” Dkt. 104 at 61 (Spitzen). Abu Ghanem “shot 14 bullets

without stopping,” and “[h]e hit the torsos of the passengers exactly where he directed the

bullets.” Id. (Spitzen). In Colonel Spitzen’s expert opinion, Abu Ghanem displayed the skill of

a “highly trained” shooter. Dkt. 104 at 61 (Spitzen). Colonel Spitzen further testified that, given

“the dynamics of terrorist attacks” and “the socioeconomic status of [Abu Ghanem] and

[Alyan],” it is also implausible that Alyan purchased the firearm for 20,000 shekels ($6,000

USD). Id. at 62 (Spitzen). That would have been the equivalent of six-months’ salary. Id.

(Spitzen). Instead, Colonel Spitzen concluded that, given the expense and difficulty of procuring

a gun and bullets, “it is quite clear and conceivable” that the money “came from a Hamas

source,” and the weapon was likely “purchased from an accomplice of Hamas.” Id. (Spitzen).

26 Second, Colonel Spitzen observes that the sophistication of the attack belied Abu

Ghanem’s statement that he had met Alyan only the night before and that the men had not

previously planned or trained to carry out the attack. As Colonel Spitzen notes in his declaration,

the fact that the two men were able quickly to trap passengers inside the bus and attempted to

flee the scene by driving the bus demonstrates a high level of planning and forethought. Id. at

29–30 (Spitzen Decl. ¶ 78). Abu Ghanem, moreover, “carried out the attack [in the manner] of a

person who was highly trained, [and] who had received training and knew how to use the gun.”

See Dkt. 104 at 61 (Spitzen). And given that “[o]ne cannot even go do target practice in the

geographical areas where [Abu Ghanem] and [Alyan] reside” because of the presence of Israeli

soldiers, Colonel Spitzen concludes that Abu Ghanem must have been “driven to isolated areas”

to train, which requires “accomplices” and which “cost[s] a great deal of money.” Id. at 63

(Spitzen). Based on the above, Colonel Spitzen draws the following conclusions:

[T]he acquaintance between Alyan and Abu Ghanem was much deeper than what the latter described in his interrogation[]; [t]he planning of the attack was more thorough and extensive than what Abu Ghanem was willing to admit in his interrogation, and it is highly likely that the funding of the attack, the acquisition of the weapons were used during the attack, and the training towards it were all done within the framework of a structured organization, in this case, Abu Ghanem’s Organization, Hamas.

Dkt. 33 at 30–31 (Spitzen Decl. ¶ 79).

The Court credits Colonel Spitzen’s testimony. Given Abu Ghanem’s documented

membership in Hamas, the sophistication of the attack (which involved the purchase of a firearm

and an escape plan), and the skill with which Abu Ghanem wielded his firearm, the Court finds

that, at the very least, Hamas provided Abu Ghanem the necessary training to carry out the

attack. That would be consistent with Hamas’s practice of recruiting Islamic Bloc operatives to

join the ranks of its operational terrorist arm, the Izz al-Dinn al-Qassam Brigades. Id. at 38

27 (Spitzen Decl. ¶ 109). It is likely, moreover, that Abu Ghanem was, in fact, a member of

Hamas’s operational terrorist arm at the time of the attack and engaged in the attack at its behest.

Indeed, shortly after the attack, an official spokesman of Hamas “issued calls to carry out further

attacks similar to the Bus 78 massacre.” Id. at 48 (Spitzen Decl. ¶ 126).

F. October 28, 2014 Shooting

1. Injury to Yehudah Glick

At approximately 10:00 p.m. on October 29, 2014, Mu’taz Ibrahim Khalil Hijazi shot

Plaintiff Yehudah Glick several times at close range as Glick was leaving the Menachem Begin

Heritage Center in Jerusalem. Dkt. 33 at 122 (Spitzen Decl. ¶ 316). Glick is a known public

advocate for the right of all people—and those of Jewish faith in particular—to pray at the

Temple Mount. Id. (Spitzen Decl. ¶ 317). At the time of the attack, Glick was a U.S. citizen, see

Dkt. 82-7 (Passport), but he has since “renounced his American citizenship” after being elected

to the Israeli Knesset, Dkt. 1 at 6 (Compl. ¶ 12). On the day of the attack, Glick was attending a

conference that he had organized on behalf of the Temple Mount Heritage Foundation at the

Menachem Begin Heritage Center. Dkt. 33 at 122 (Spitzen Decl. ¶ 317). Hijazi, was employed

as an assistant chef at the Center. Id. at 123 (Spitzen Decl. ¶ 318). That evening, surveillance

cameras captured Hijazi leaving the Center by scooter at 9:37 p.m. and returning half an hour

later to the courtyard. Id. (Spitzen Dec. ¶ 319).

When the conference ended, Glick exited the Center and headed to his car. Id. (Spitzen

Decl. ¶ 320). Hijazi approached Glick on his scooter and said, “I am shooting you because you

are an enemy of Al Aqsa.” Dkt. 52 at 4 (Y. Glick Decl. ¶ 20). He then shot Glick four times in

the center of his body. Id. (Y. Glick Decl. ¶ 21). After the attack, Hijazi fled by scooter. Dkt.

28 33 at 122 (Spitzen Decl. ¶ 316). He was later identified, apprehended, and killed in a shootout

with the police on the morning of October 30, 2014. Id. at 124–25 (Spitzen Decl. ¶¶ 323–24).

Glick was brought to the hospital in critical condition. Id. at 123 (Spitzen Decl. ¶ 320).

The shooting caused “significant injury to [his] liver, spine, and small and large intestines,” and

the bullets also “punctured a lung, entered [his] throat, and damaged one of [his] hands.” Dkt. 52

at 4 (Y. Glick Decl. ¶ 24). He was placed in a medically induced coma for ten days and stayed at

the hospital for twenty-five days. Id. at 5 (Y. Glick Decl. ¶¶ 25–26, 32). Glick attests that, to

this day, he experiences “continual anxiety” and “constant pain in [his] arm, back and abdomen.”

Id. at 7 (Y. Glick Decl. ¶ 46).

The attack also deeply affected Glick’s family members. The estate of his wife, Yaffa

Glick, and his children and foster children, Neria David Glick, Shlomo Glick, Hallel Glick, S.G.,

R.T. and T.T., are also plaintiffs in this action. Dkt. 1 at 6–7 (Compl. ¶¶ 12–15). R.T. and T.T.

are Israeli citizens. Dkt. 87 at 41. The rest of the family members are U.S. citizens. They allege

that they suffered “severe psychological and emotional injuries” as a result of the attack and,

specifically, in coping with its aftermath. Dkt. 1 at 22 (Compl. ¶ 85).

2. Attribution to PIJ

Colonel Spitzen opines, based on police reports of the incident and Hijazi’s background,

that “[t]he assassination attempt on Yehuda[h] Glick was a planned, premediated terrorist attack”

by a PIJ operative. Dkt. 33 at 125 (Spitzen Decl. ¶ 325). Colonel Spitzen notes that Hijazi’s

conduct during the attack was “calculated” and “show[ed]” expertise. Id. (Spitzen Decl. ¶ 326).

Hijazi “specifically targeted Glick,” a Jewish advocate; he purposefully left the Center “before

the conference concluded, most likely in order to bring [his] weapon;” he shot Glick multiple

times at point blank range; he calmly “escaped the scene of the attack on his scooter;” and he

29 “revealed his combat skills and self-control when the security forces came to arrest him, and

“[h]e climbed a tall vantage point—the house roof—from which he tried to shoot the forces.” Id.

at 125–26 (Spitzen Decl. ¶¶ 325–27). According to Colonel Spitzen, Hijazi likely joined PIJ

while he was incarcerated. Hijazi served a total of eleven years for setting fire to electrical

cabinets in Jerusalem for “nationalist reasons,” id. at 127 (Spitzen Decl. ¶ 331), and for multiple

assaults he committed against prison guards and fellow prisoners while he was incarcerated, id.

at 127 (Spitzen Decl. ¶ 332). Court documents from his case reveal that, as early as 2004, a

prison service officer testified that Hijazi belonged to PIJ. Id. at 127–28 (Spitzen Decl. ¶ 333).

As Colonel Spitzen explains, “[i]t is extremely common for prisoners to join terror organizations

while serving time in Israeli prisons.” Id. at 128 (Spitzen Decl. ¶ 334).

Colonel Spitzen further attests, based on his review of social media affiliated with PIJ,

that PIJ claimed credit for the attack. See id. at 128 (Spitzen Decl. ¶ 335) (“Immediately after

the assassination attempt . . . , media outlets, internet web sites (including web sites identified

with the Palestinian Islamic Jihad), and Palestinian Islamic Jihad senior leaders—all referred to

[Hijazi] as an operative of the [PIJ] operational arm, known as the Saraya al-Quds (Al-Quds

Brigades).”). Notably, after the attack, the Al-Quds Brigades’ website published a poster

“depicting [Hijazi] with Fathi Shiqaqi, the [PIJ] historic leader and founder in the background.”

Id. at 129 (Spitzen Decl. ¶ 338). On October 31, 2014, the day after Hijazi was killed, PIJ

“organized a march in Gaza in support of . . . [Hijazi],” which included the “burning of Israeli

and American flags.” Id. at 130 (Spitzen Decl. ¶ 341). The Al-Quds Brigades’ website went so

far as to publish the following statement on January 4, 2015: “Our martyr, the mujahid Mu’taz

Hijazi, son of Jerusalem, guardian of the will of his teacher, martyr Fathi Shiqaqi, on the 19th

30 anniversary (of his demise), has taken revenge on those who tried to harm and befoul the Al-

Aqsa Mosque.” Id. at 139–40 (Spitzen Decl. ¶ 338).

In light of the above, the Court concludes that the assignation attempt on Yehudah Glick

was carried out by a PIJ operative.

G. August 19, 2011 Rocket Attack

1. Physical Injury to Schmuel Brauner

Between August 18th and 22nd of 2011, Hamas and other terrorist organizations fired

“Grad rockets” from the Gaza Strip into Israel. Dkt. 33 at 106–07 (Spitzen Decl. ¶¶ 278–281);

Dkt. 104 at 76 (Spitzen). More than 100 rockets were fired over this four-day period, affecting

civilians in “Israeli communities near the border of the Gaza Strip.” Dkt. 33 at 107–08 (Spitzen

Decl. ¶ 280). The attack was part and parcel of Hamas’s strategy to inflict terror on Israeli

civilians after Israel imposed restrictions on the flow of goods and persons from the Gaza Strip

following Hamas’s takeover of Gaza in 2007. See id. at 96–97 (Spitzen Decl. ¶¶ 252–53).

Colonel Spitzen describes “Hamas’s policy with respect to rocket launching” as follows:

The organization itself fired rockets and allowed other organizations to fire rockets toward communities in Israel when such actions were in line with its objectives at a given time. On the other hand, it forced its operatives and the operatives of other organizations to respect ceasefires when it suited its goals.

Id. at 98 (Spitzen Decl. ¶ 256). This period of rocket attacks, for example, ended when Egypt

helped broker a ceasefire. Id. (Spitzen Decl. ¶ 257).

On the morning of August 19, 2011, two rockets landed near a synagogue in Ashdod,

where Plaintiff Schmuel Brauner was attending services. Dkt. 39 at 2 (S. Brauner Decl. ¶ 7).

The first missile landed but did not explode. Id. The second missile exploded in the

synagogue’s courtyard, injuring Schmuel and several others. Id.; Dkt. 87 at 56; Dkt. 33 at 107–

08 (Spitzen Decl. ¶ 280). According to Schmuel, he and other civilians ran out of the synagogue

31 when the first missile landed. Dkt. 39 at 2 (S. Brauner Decl. ¶ 7). Before he could reach cover,

however, the second missile landed and exploded within four meters of him. Id. As a result of

the explosion, shrapnel entered his back and exited through his stomach. Id. Schmuel was

immobile and “in excruciating pain,” but he never lost consciousness. Id. (S. Brauner Decl.

¶¶ 7–8). He was taken to Kaplan Medical Center in Rehovot. Id. (S. Brauner Decl. ¶ 10). His

physical injuries included “a ruptured kidney, lacerations to his bowel and small intestine,” and

other shrapnel wounds to his right thigh and knee. Dkt. 87 at 56. Schmuel spent ten days in the

hospital, during which he endured several surgeries. Id. To this day, he suffers physical

discomfort as well as psychological and emotional trauma. See id.; Dkt. 35-5 (Dr. Rael Stous

Medical Rpt.).

The attack also severely impacted Brauner’s family. His wife, Nechama Brauner, and

parents, Mordechai and Esther Brauner—all of whom are U.S. citizens—seek solatium damages

for their mental and emotional anguish as a result of Shmuel’s injuries. Dkt. 87 at 80–81; see

also Dkt. 35-2 (N. Brauner Psych. Eval.); Dkt. 35-3 (E. Brauner Psych. Eval.), Dkt. 35-4 (M.

Brauner Psych. Eval.). Shmuel and Nechama Brauner also bringing claims for solatium damages

on behalf of their minor children, C.Y.B., M.H.B., and Y.A.L.B., Dkt. 1 at 9 (Compl. ¶¶ 28–29),

all of whom are Israeli citizens, 3 Dkt. 87 at 88. C.Y.B. was not yet a year old when his father

was injured. Dkt. 35-6 at 1. M.H.B. and Y.A.L.B. were born after the attack. Id. Nechama

3 The record is ambiguous as to whether the children are also U.S. citizens, as they were born abroad to two married U.S. citizens, but the record does not disclose whether either Schmuel or Nechama ever resided in the United States prior to the children’s birth, such that they would be U.S. citizens at birth. See 8 U.S.C. § 1401. Because Plaintiffs do not ask the Court to find that the children have U.S. citizenship, see Dkt. 87 at 88 (Proposed Findings of Fact ¶ 293), the Court will proceed on the understanding that the children are not U.S. citizens. 32 attests that, as a result of the attack, Shmuel is mostly absent from his children’s lives, and this

has “greatly affected their upbringing.” Dkt. 38 at 5 (N. Brauner Decl. ¶ 26).

Several terrorist organizations based in the Gaza Strip fired rockets towards Israel during

the period of time when the rocket attack on the Ashdod Synagogue took place, and the identity

of the specific terrorist group that launched the particular missile causing Shmuel Brauner’s

injuries is unclear. Dkt. 33 at 112 (Spitzen Decl. ¶¶ 292–93). In fact, more than one terrorist

organization has claimed responsibility for the attack because it was “considered a success”—“a

direct hit on the synagogue[,] . . . caus[ing] extensive damage to property and people,

and . . . receiv[ing] wide coverage in the media.” Id. (Spitzen Decl. ¶ 293). The Court credits

Colonel Spitzen’s conclusion, however, that Hamas was ultimately responsible for the attack, id.

at 113 (Spitzen Decl. ¶ 295), based on the fact that Hamas “was—and still is—the only authority

in sole and effective control of everything that happens within the Gaza strip,” id. (Spitzen Decl.

¶ 296). According to Colonel Spitzen, Hamas enforced its authority “over the other terrorist

organizations strictly, effectively, and aggressively, in such a manner that any firing began or

ended on its orders.” Id. (emphasis added). Spitzen persuasively concludes that, even if another

terrorist organization had launched the rocket that injured Schmuel, it must have received

authorization from Hamas before doing so. See Dkt. 104 at 76 (Spitzen) (“Hamas which controls

the Gaza Strip is the only party that enables or facilitates the firing of these missiles.”). The

Court, accordingly, finds that Hamas was ultimately responsible for the August 19, 2011 rocket

attack that injured Schmuel Brauner.

33 H. November 21, 2012 Rocket Attack

1. Emotional Injury to Daniella, Noa, Dana, and A. Parnas

Between November 14, 2012 and November 21, 2012, terrorist groups operating in the

Gaza Strip launched approximately 1,500 rockets at civilian targets in Israel during “Operation

Pillar of Defense,” a military operation carried out by the Israeli Defense Forces in the Gaza

Strip. Dkt. 33 at 114–15 (Spitzen Decl. ¶ 301); Dkt. 104 at 76–77 (Spitzen). The onslaught of

missile attacks “started as a result of the assassination . . . of . . . a very senior ranked terrorist,

Ahmad Jabari, who was the chief of staff of Hamas.” Dkt. 104 at 77 (Spitzen). According to the

bomb disposal expert’s report and police reports, a 122 mm Grad rocket landed in Timorim,

Israel, Dkt. 33 at 114 (Spitzen Decl. ¶ 300–01), a village “approximately 40 kilometers aerially

from the Gaza Strip” on November 21, 2012, at 10:18 a.m, Dkt. 140 at 76–77 (Spitzen); Dkt. 33

at 114–15 (Spitzen Decl. ¶ 300). The rocket hit the home of Plaintiff Daniella Schwadron

Parnas, 4 where she resided with her three children, Noa Parnas, Dana Parnas, and A.P. Dkt. 33

at 114 (Spitzen Decl. ¶ 300); Dkt. 69 at 1 (D. Parnas Decl. ¶ 5). Their home sustained “heavy

damage.” Dkt. 33 at 114 (Spitzen Decl. ¶ 300). The explosion left the home with no roof and

broken windows. Dkt. 69 at 4 (Daniella Parnas Decl. ¶ 32).

Plaintiffs Daniella Schwadron Parnas, Noa Parnas, Dana Parnas, and A.P., all of whom

are U.S citizens, Dkt. 82-22; Dkt. 82-23; Dkt. 83-24, seek damages for the “severe psychological

and emotional injuries” they suffered as a result of the November 21, 2012 rocket attack on their

home, Dkt. 1 at 28 (Comp. ¶ 112). None of the Parnas plaintiffs suffered any physical injuries,

4 The Court adopts the spelling of “Parnas” as it appears in the complaint, Dkt. 1 at 4 (Compl.), Daniella Parnas’s declaration, Dkt. 69 at 1 (D. Parnas Decl.), and Dr. Strous’s psychiatric evaluation, Dkt. 35-34 at 1 (Daniella Parnas Psych. Eval.). Colonel Spitzen’s declaration spells the plaintiffs’ last name as “Parnass.”

34 see id., nor were they at home when the rocket struck, see Dkt. 69 at 1–2 (Daniella Parnas Decl.

¶¶ 7–12). Each has, nevertheless, submitted a declaration and a psychiatric evaluation attesting

to his or her psychological harm. See Dkt. 67 (Dana Parnas Decl.); Dkt. 69 (Daniella Parnas

Decl.); Dkt. 70 (N. Parnas Decl.); Dkt. 35-32 (A.P. Psych. Eval.); Dkt. 35-33 (Dana Parnas

Psych. Eval.); Dkt. 35-34 (Daniella Parnas Psych. Eval.); Dkt. 35-35 (N. Parnas Psych. Eval.).

Daniella attested that, at the time of attack, she was running an errand at a nearby

supermarket. Dkt. 69 at 1–2 (Daniella Parnas Decl. ¶¶ 8–9). When the rocket siren sounded,

and she was “forced to run for cover” at a nearby bomb shelter. Dkt. 1 at 27 (Compl. ¶ 110).

She then “heard a very loud ‘BANG’” and knew that a rocket had fallen nearby. Dkt. 69 at 2

(Daniella Parnas Decl. ¶ 10). Upon leaving the shelter, she saw a tree burning and

“immediately” realized the fire was coming from her house. Id. (Daniella Parnas Decl. ¶ 11).

Daniella attested that she was “terrified” because her 82-year-old mother was still inside her own

home, which “is connected” to Parnas’s “house by a door.” Id. at 1-2 (Daniella Parnas Decl. ¶¶

5, 13). Parnas’s mother was later found “standing in the hallway [of her home] in a state of

shock and confusion.” Id. at 2 (Parnas Decl. ¶ 14). Parnas’s psychiatric evaluation revealed that

she initially felt “overwhelming anxiety and fright,” and now experiences “symptoms of

depression, anxiety and PTSD following the shock and stress” of the incident. Dkt. 35-34 at 2, 7

(Daniella Parnas Psych. Eval.).

Daniella’s daughters, Noa and Dana were both serving in the army at the time of the

attack. Dkt. 69 at 1 (Daniella Parnas Decl. ¶ 7). Dana watched online as her “entire house

[went] up in flames.” Dkt. 67 at 1 (Dana Parnas Decl. ¶ 5). She then called Noa to tell her about

the incident. Dkt. 70 at 2 (Noa Parnas Decl. ¶ 8). Both were “hysterical” after the attack, Dkt.

35-33 at 2 (Dana Parnas Psych. Eval.); Dkt. 70 at 2 (Noa Parnas Decl. ¶ 9), and their psychiatric

35 evaluations reveal that they now suffer from depression and anxiety as a result, Dkt. 35-33 at 2

(Dana Parnas Psych. Eval.); Dkt. 35-5 at 5 (N. Parnas Psych. Eval.).

Finally, A.P. was seven years old at the time of the November 21, 2012 rocket attack.

Dkt. 35-32 at 1 (A.P. Psych. Eval.). He was staying with a nearby relative at the time. Dkt. 69 at

1 (Parnas Decl. ¶ 7). A.P.’s psychological evaluation found that, after the attack, he suffered

from anxiety that affected his social and school functioning. Dkt. 35-32 at 4 (A.P. Psych. Eval.).

A.P. has “improved considerably,” but his anxiety will continue to affect “his social and

academic functioning.” Id. at 4–5.

The rocket that blew up the Parnas’s home was fired on the last day of “Operation Pillar

of Defense.” Dkt. 33 at 114–15 (Spitzen Decl. ¶ 301). Due to the direct hit and the media

attention that the attack garnered, multiple organizations came forward to claim credit for the

attack, including the Izz a-Din al-Qassam Brigades, the operational wing of Hamas. Id. at 116

(Spitzen Decl. ¶¶ 304–05). In Colonel Spitzen’s expert opinion, however, “Hamas’s

responsibility for the attack is not contested.” Id. at 117 (Spitzen Decl. ¶ 306). To the contrary,

Spitzen concludes, based on the timing of the attack and Hamas’s control of the Gaza Strip, the

the rocket attacks during that period were “the direct result of . . . decisions and directives issued

by the Hamas leadership.” Id. As noted above, Hamas initiated the rocket attacks because Israel

killed “Ahmad Ja’abri, the head of Hamas’s operational terrorist wing.” Id. at 115 (Spitzen Decl.

¶ 302). The same day that Israel killed Ja’abri, “Hamas gave a greenlight to all of the [terrorist]

organizations in the Gaza Strip to start” Operation Pillar of Defense. Dkt. 104 at 77 (Spitzen).

The Court credits Colonel Spitzen’s expert opinion that Hamas authorized the attack and finds

36 Hamas responsible the rocket launch that destroyed Plaintiffs Daniella Parnas, Noa Parnas, Dana

Parnas, and A.P.’s home.

I. March 6, 2008 Shooting at Merkaz HaRav Yeshiva

1. Attack

On March 6, 2008, at approximately 8:30 p.m., Ala’ Hisham Abu Dheim, a 26-year-old

Izz al-Din al-Qassam Brigades operative, entered the Merkaz HaRav Yeshiva in Jerusalem. Dkt.

33 at 72 (Spitzen Decl. ¶ 188). He was armed with a Kalashnikov assault rifle with nine

compatible magazines, two guns (a Beretta pistol and an FN pistol) with four compatible

magazines, and a commando knife. Id. (Spitzen Decl. ¶ 189); see also Dkt. 104 at 84 (Spitzen).

On his way to the Yeshiva, Abu Dheim concealed his weapons in a cardboard box and exploited

the fact that there was no security guard at the entrance at the time. Dkt. 33 at 72−73 (Spitzen

Decl. ¶ 189).

Before Abu Dheim even entered the building, he opened fire on Yeshiva students in the

front plaza with his Kalashnikov assault rifle, killing one student and injuring several others. Id.

at 73, 86 (Spitzen Decl. ¶¶ 190, 223). He then shot through the windows of the building at two

students standing inside near the entrance and shot them again to ensure that they were dead. Id.

at 86 (Spitzen Decl. ¶ 224). Upon entering the building, Abu Dheim shot two students

descending the stairs. Id. He then proceeded toward the library, opening fire on students

standing outside. Id. at 73 (Spitzen Decl. ¶ 190). The sound of gunshots and shouts of a terrorist

attack preceded Abu Dheim’s arrival in the library, so students had time to attempt to hide. Id. at

86−87 (Spitzen Decl. ¶¶ 225−26).

When Abu Dheim arrived at the library, he launched a “systematic massacre.” Id. at 73

(Spitzen Decl. ¶ 190); Dkt. 104 at 84–85 (Spitzen). According to eyewitnesses, Abu Dheim

37 sought out students who were hiding behind bookshelves and shot them. Dkt. 33 at 73–74

(Spitzen Decl. ¶ 191). Eyewitnesses also recount that he operated with the “skill and precision of

a trained and cold-hearted assassin” and that he “exhibit[ed] control handling his weapons,

speedily load[ing] and reload[ing] magazines while shooting and accurately targeting” the

victims “at long and close range.” Id. Captain David Shapira, an officer in the Paratroopers

Brigade who lived near the Yeshiva, and Rabbi Yitzhak Dadon, a student at the Yeshiva at the

time, both attempted to stop Abu Dheim. Id. at 73–74 (Spitzen Decl. ¶ 192). Eventually,

Captain Shapira shot and killed Abu Dheim. Id. The entire event—from the time he began

killing until when he had been taken out—lasted between ten and fifteen minutes. Id. (Spitzen

Decl. ¶ 193). Eight boys, mostly high school students, were killed, including Plaintiff Avraham

David Moses. Id. In addition, ten students were wounded, including Plaintiff Naftali Shitrit. Id.

2. Killing of Avraham David Moses

Avraham David Moses was studying with his friend, Segev Avihail, when the attack

began. Id. at 87 (Spitzen Decl. ¶ 227). The boys were alerted to the attack by the shouts and

burst of gunfire outside the building and attempted to hide under a “table/shelf” near the library

entrance. Id. Based on the bullet marks on the floor, the boys were likely shot and killed from a

close range while hiding huddled together in this location. Id. According to Rabbi Dadon’s

timeline, it is “highly probable” that the boys were in their hiding space for seven to eight

minutes before they were killed. Id. (Spitzen Decl. ¶ 228). Avraham was sixteen years-old. Id.

at 74 (Spitzen Decl. ¶ 193).

The estate of Avraham David Moses (a U.S. citizen), is a plaintiff in this case. Dkt. 1 at 8

(Compl. ¶ 19). His mother, Rivkah Martha Moses; father, Naftali Andrew Moses; step-father,

David Moriah; siblings, Elisha Dan Moses, N.M., C.M., O.D.M., and A.M.; step-brother, Aviad

38 Moriah—all of whom are U.S. citizens—as well as his step-siblings, Z.G.M., Hagit Gibor

Moriah, Eitan Yoel Moriah, Yifat Moriah, and Atara Nesia Moriah—all of whom are Israeli

citizens—also seek damages for the “severe psychological, emotional and other personal

injuries” they suffered as a result of his death, including loss of consortium and loss of solatium.

Id. at 7–8, 31 (Compl. ¶¶ 18–23, 128).

3. Injury to Naftali Shitrit

Plaintiff Naftali Shitrit, a U.S. citizen, Dkt. 84-4 at 1, was a high school student at the

time of the attack. Dkt. 76 at 1 (N. Shitrit Decl. ¶ 3). Upon hearing gunshots, Naftali “hid

behind one of the stacks in the library”—one of the last in the room. Id. at 2 (N. Shitrit Decl.

¶ 6). He realized that “the gunman was systematically going from one stack to the next” when

he heard “gunshots, then shouts and screams, then silence from the stacks near [him].” Id. (N.

Shitrit Decl. ¶ 7). After coming across Naftali’s hiding place, Abu Dheim shot Naftali multiple

times. Id. Naftali was brought to the hospital in critical condition, and he was unconscious for a

week. Id. at 3 (N. Shitrit Decl. ¶ 24, 26). Five months after the attack, he traveled to the U.S. for

additional reconstructive surgery. Id. at 5 (N. Shitrit Decl. ¶ 46). To this day, Naftali suffers

severe and permanent physical and emotional injuries. Id. at 5–7 (N. Shitrit Decl. ¶¶ 48–53).

Naftali is a plaintiff in this case, as are his mother, Gila Rachel Shitrit (a U.S. citizen);

father, Yaakov Shitrit (an Israeli citizen); and siblings, Meiri Shitrit, Oshrat Shitrit, N.S., Y.S.,

A.S., E.S., and H.S. (all of whom are U.S. citizens). Dkt. 1 at 8–9 (Compl. ¶¶ 24–27). His

family members seek damages for the mental and emotional anguish they suffered as a result of

his injuries. See id. at 31 (Compl. ¶ 128).

4. Attribution to Hamas

39 The Court credits Colonel Spitzen’s conclusion that Hamas was responsible for the

March 6, 2008, shooting at the Yeshiva. Colonel Spitzen identifies two specific reasons for his

conclusion. First, and foremost, Hamas claimed credit for the attack. Id. at 78−82 (Spitzen

Decl. ¶¶ 202−13). An anonymous Hamas official immediately contacted Reuters,

acknowledging that Hamas was responsible. Id. at 78 (Spitzen Decl. ¶ 202). Following that

announcement, Abu Ubeida, the spokesman of the Izz al-Din al-Qassam Brigades, suspended the

organization’s claim of responsibility, but neither affirmed nor denied responsibility. Id. He

stated, instead, that “[t]he time has not yet come for claiming responsibility.” Id. The official

claim for responsibility by the Izz al-Din al-Qassam Brigades came two years after the attack, in

a December 25, 2010 press conference with Abu Ubeida. Id. at 78 (Spitzen Decl. ¶ 203); Dkt.

104 at 88–89 (Spitzen). According to Colonel Spitzen, the delay is consistent with Hamas’s

policy of delaying a claim of responsibility out of consideration for the security of other Hamas

operatives and accomplices. Dkt. 33 at 79 (Spitzen Decl. ¶ 204).

Second, Colonel Spitzen concludes, based on eyewitness accounts of the account and

police statements, that Abu Dheim “had been well trained and was not acting alone.” Dkt. 33 at

74 (Spitzen Decl. ¶ 194). According to Spitzen, “all stages of the attack were ‘meticulously

planned’” and “demonstrate characteristics of organized attacks carried out by terrorist

organizations, like Hamas.” Id. The Yeshiva, for example, “was a strategic target that was

carefully selected . . . because of its prominence as a learning institutes for religious studies and

its location, at the main entrance to Jerusalem.” Id. at 75 (Spitzen Decl. ¶ 196). Moreover, the

sophistication of the attack indicates that “[c]areful intelligence and logistic preparations were

made prior to the attack, including intelligence gathering, acquisition of a variety of weapons,

shooting practice and concealing the weapons on the way to the target.” Id.

40 The Court, accordingly, finds that the Merkaz HaRav massacre was conducted by

Hamas.

III. CONCLUSIONS OF LAW

Under the Foreign Sovereign Immunity Act, 28 U.S.C. § 1604, a foreign state, including

its instrumentalities, is immune from suit in state or federal court unless the case falls within an

express statutory exception. See Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d

1123, 1126 (D.C. Cir. 2004). For present purposes, the sole relevant exception is found in the

“state-sponsored terrorism exception,” 28 U.S.C. § 1605A, which both confers subject matter

jurisdiction on federal district courts to hear certain terrorism-related claims, see 28 U.S.C. §

1330(a), and recognizes a federal cause of action against those foreign states subject to the

exception, see Owens, 864 F.3d at 764–65. The FSIA also addresses personal jurisdiction and

specifies precise procedures that a plaintiff must follow—at times with the assistance of the clerk

of the court and the U.S. Department of State—to effect service on a foreign state. See 28 U.S.C.

§ 1608.

The Court must satisfy itself that an FSIA plaintiff has cleared each of these hurdles, even

if the defendant fails to appear. First, because the FSIA deprives courts of subject-matter

jurisdiction in the absence of a relevant exception, a failure to appear does not waive the defense

and the courts are “obligated to consider sua sponte” whether they have jurisdiction hear the case

and to order any relief. Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); see also Verlinden B.V. v.

Cent. Bank of Nigeria, 461 U.S. 480, 493 n.20 (1983) (even where a defendant foreign state does

not appear, the Court “still must determine that immunity is unavailable”). Second, with respect

to the substance of a plaintiffs’ state or federal law claims, as noted above, the FSIA precludes

courts from entering a default judgment against a foreign state unless the court is satisfied that

41 the plaintiff has established her “right to relief by evidence satisfactory to the court.” 28 U.S.C.

§ 1608(e); see also Owens, 864 F.3d at 784–86. And, because “the entry of a default judgment is

not automatic,” courts must “satisfy [themselves] that [they have] personal jurisdiction before

entering judgment against an absent defendant.” Mwani, 417 F.3d at 6 (footnote omitted).

Each of these inquiries, in turn, implicates a slightly different standard of proof. To

establish subject-matter jurisdiction, an FSIA “plaintiff bears an initial burden of production to

show [that] an exception to immunity, such as § 1605A, applies.” Owens IV, 864 F.3d at 784.

“Although a court gains jurisdiction over a claim against a defaulting defendant when a plaintiff

meets his burden of production, the plaintiff must still prove his case on the merits.” Id. To do

so, the plaintiff must “establish his . . . right to relief by evidence satisfactory to the court.” 28

U.S.C. § 1608(e). This provision’s “protection against an unfounded default judgment” does not

altogether “relieve[] the sovereign from the duty to defend” but, nonetheless, requires that the

plaintiff offer “admissible evidence” sufficient to “substantiate [the] essential element[s]” of her

claim. Owens IV, 864 F.3d at 785–86 (quotations omitted). Finally, to establish personal

jurisdiction over a defaulting defendant, the plaintiff must make “a prima facie showing of

[personal] jurisdiction.” Mwani, 417 F.3d at 6–7.

As explained below, the Court concludes that it has subject-matter jurisdiction over

Plaintiffs’ claim and personal jurisdiction over the Islamic Republic of Iran, MOIS, and the

Syrian Arab Republic. 5 The Court also concludes that the U.S. national plaintiffs have carried

5 Because the MOIS is itself a “governmental” entity, it is properly “considered the foreign state itself,” and not merely an “instrumentality of the foreign state.” Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003); see also TMR Energy Ltd. v. State Prop. Fund of Ukr., 411 F.3d 296, 300 (D.C. Cir. 2005) (explaining that “an entity that is an ‘integral part of a foreign state’s political structure’ is to be treated as the foreign state itself” for purposes of “determining the proper method of service under the FSIA” (quoting Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 151 (D.C. Cir. 1994))).

42 their burden of establishing a right to relief under the federal cause of action established in

§ 1605A, and that the Israeli plaintiffs—with the exception of M.H.B. and Y.A.L.B.—have

carried their burden of establishing a right to relief under the law of Israel. Finally, the Court

will defer until the damages stage the determination whether each of the plaintiffs has established

the necessary familial relationship to recover individual damages and, if so, the damages to

which each is entitled.

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

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

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

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

accordingly, has subject-matter jurisdiction over the present “nonjury civil action” against Iran if,

and only if, the conditions for the waiver of immunity found in 28 U.S.C. § 1605A are satisfied.

As explained below, Plaintiffs have carried their burden of establishing the Court’s subject-

matter jurisdiction.

Under the state-sponsored terrorism exception, 28 U.S.C. § 1605A(a)(1), a foreign state

is not immune from the jurisdiction of the federal and state courts in cases in which

[(1)] money damages are sought against a foreign state [(2)] for personal injury or death [(3)] that was caused by [(4)] an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is [(5)] engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

28 U.S.C. § 1605A(a)(1). The exception, moreover, applies only to suits in which two additional

requirements are met. First, the claimant or victim must be a U.S. national, a member of the U.S.

armed forces, or a U.S. government employee or contractor at the time the act of terrorism

occurred. 28 U.S.C. § 1605A(a)(2)(A)(ii). Second, the foreign state must be designated as a

43 state sponsor of terrorism both at the time the act occurred (or was so designated as a result of

the act) and at the time the lawsuit was filed (or was so designated within the six-month period

preceding the filing of the suit). 6 Id. § 1605A(a)(2)(A)(i)(I); see also Owens IV, 864 F.3d at

763–64.

Several of the conditions for subject-matter jurisdiction are easily addressed in this case.

First, Plaintiffs expressly seek only monetary relief, costs and expenses, and attorneys’ fees. See

Dkt. 1 at 35 (Compl. Prayer). Second, Iran and Syria were designated as a state sponsors of

terrorism in 1984 and 1979, respectively, see 49 Fed. Reg. 2836–02 (Jan. 23, 1984) (statement of

Secretary of State George P. Shultz) (Iran); Gates v. Syrian Arab Republic, 646 F.3d 1, 2 (D.C.

Cir. 2011) (Syria), and remain so designated to this day, see U.S. Dep’t of State, State Sponsors

of Terrorism, available at https://www.state.gov/j/ct/list/c14151.htm (last visited May 25, 2020).

Moreover, because the MOIS is properly considered “an integral part” of the “foreign state[]” of

Iran’s “political structure,” TMR Energy Ltd., 411 F.3d at 300 (quoting Transaero, Inc., 30 F.3d

at 151), and because § 1605A focuses on whether “the foreign state was designated”—and not

whether each named defendant was separately designated—the Court concludes that the

designation of Iran as a state sponsor of terrorism is sufficient to satisfy the designation

requirement as to both defendants. See 28 U.S.C. § 1605A(a)(2)(A)(i)(I). Third, at the time the

relevant acts occurred, all eleven of the direct victims and thirty-four of the family members

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

44 were U.S. nationals (the Court will address the Israeli national plaintiffs below). See supra Part

II.C-I.

As a result, the only substantial jurisdictional question left for the Court is whether

Plaintiffs’ claims are for “personal injury or death that [were] caused by . . . act[s] of torture,

extrajudicial killing . . . hostage taking, or the provision of material support or resources” by an

“official, employee, or agent of” Iran or Syria. 28 U.S.C. § 1605A(a)(1). For the reasons

explained below, the Court concludes as follows: (1) Hamas and PIJ committed acts of

“extrajudicial killing” within the meaning of the International Convention Against the Taking of

Hostages and the Torture Victim Protection Act; (2) because the Parnases’ claims are for

emotional harms arising out of an attempted extrajudicial killing in which no one was injured

(and none of the Parnases were even placed physical peril), they cannot state a claim for

recovery for their injuries; (3) Iranian and Syrian officials and their agents provided “material

support or resources” for the extrajudicial killings that caused Plaintiffs’ injuries within the

meaning of 18 U.S.C. § 2339A; and (4) Iran and Syria’s provision of material support caused the

injuries or deaths of the eleven victims. Plaintiffs’ claims against Iran and Syria, therefore, fall

within the state-sponsored terrorism exception of 28 U.S.C. § 1605A(a)(1).

1. “Personal Injury or Death . . . Caused By” Defendant’s Conduct

The FSIA effects a waiver of sovereign immunity for claims seeking to recover for

“personal injury or death that was caused by” certain terrorist acts or the provision of material

support for such acts. 28 U.S.C. § 1605A(a)(1). Plaintiffs Taylor Force, Menachem Rivkin,

Yehudah Glick, Richard Lakin, Avraham Moses, Naftali Shitrit, and Shmuel Brauner all died or

suffered significant physical injuries as a result of terrorist attacks committed by Hamas or PIJ,

Dkt. 44 at 2 (S. Force Decl. ¶ 12; Dkt. 39 at 2–3 (S. Brauner Decl. ¶¶ 7–14); Dkt. 52 at 4–5

45 (Yehuda Glick Decl. ¶¶ 21–26); Dkt. 66 at 4 (N. Moses Decl. ¶ 29); Dkt. 54 at 1 (M. Lakin Decl.

¶ 1); Dkt 72 at 1 (M. Rivkin Decl. ¶ 1); Dkt. 76 at 2–3 (N. Shitrit Decl. ¶¶ 9–10, 21–26), and

their claims to recover for those injuries satisfy the personal injury requirement of

§ 1605A(a)(1). Because the statute is understood to encompass claims by family members of

those injured or killed for the distress caused by their relative’s injuries, also known as solatium

actions, see 28 U.S.C. § 1605A(c); see also Salzman v. Islamic Republic of Iran, No. 17-1745,

2019 WL 4673761 at *12 (D.D.C. Sept. 25, 2019), the relatives of Taylor Force, Menachem

Rivkin, Yehudah Glick, Richard Lakin, Avraham Moses, Naftali Shitrit, and Shmuel Brauner

also satisfy the personal injury requirement of § 1605A(a)(1). Family members seeking solatium

damages are considered to be bringing a particular variety of an intentional infliction of

emotional distress claim, see Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 54–55

(D.D.C. 2012) (“Oveissi II”), and are considered to be bringing “claims for personal injury,” id.

at 55. Thus, the Parnases, who seek to recover for the purely emotional harm they suffered based

on an intentional infliction of emotional distress theory of liability, similarly advance a claim for

“personal injuries” caused by the Defendants’ provision of material support.

2. Hamas and PIJ’s Acts of Extrajudicial Killing

To fall within the FSIA’s waiver of sovereign immunity, Plaintiffs’ “personal injur[ies]

or death[s]” must also have been “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). The FSIA looks to the Torture Victims Protection Act of 1991 (“TVPA”)

to define “extrajudicial killing.” 28 U.S.C. § 1605A(h)(7). Under the TVPA, “extrajudicial

killing” means

a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are

46 recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.

TVPA, Pub. L. No. 102-256, § 3(a), 106 Stat. 73. As the D.C. Circuit has explained, this

definition “contains three elements: (1) a killing; (2) that is deliberated; and (3) is not authorized

by a previous judgment pronounced by a regularly constituted court.” Owens IV, 864 F.3d at

770.

a. Killing or Attempted Killing

To begin, the March 8, 2016 stabbing, October 13, 2015 bus massacre, and March 6,

2008 shooting, which resulted in the deaths of Taylor Force, Richard Lakin, and Avraham David

Moses, respectively, indisputably constitute extrajudicial killings. No one, however, was killed

in the October 29, 2014 shooting, the January 27, 2016 stabbing, or the 2011 and 2012 rocket

attacks. See supra Parts II.F, D, G–H. That then poses the question of whether the TVPA’s

definition of extrajudicial killings reach attacks in which no one died. In other words: does the

statute cover attempts? Decisions from this district and from other jurisdictions have held that it

does. See, e.g., Karcher v. Islamic Republic of Iran, 396 F. Supp. 3d 12, 58 (D.D.C. 2019); Gill

v. Islamic Republic of Iran, 249 F. Supp. 3d 88, 99 (D.D.C. 2017).

Although the text of § 1605A does not address attempts, courts resolve statutory

“ambiguities flexibly and capaciously” in light of the text, history, and remedial purpose of the

statute to compensate those injured in terrorist attacks. Van Beneden v. Al-Sanusi, 709 F.3d

1165, 1167 & n.4 (D.C. Cir. 2013). The statute permits recovery for “personal injur[ies] or death

. . . caused by . . . an act of . . . extrajudicial killing.” 28 U.S.C. § 1605A(a)(1). Several

decisions from this district have held that individuals who are injured but not killed in an attack

that results in the death of others may recover for their injuries under § 1605A. See, e.g.,

Karcher, 396 F. Supp. 3d at 58; Salzman v. Islamic Republic of Iran, No. 17-2475, 2019 WL 47 4673761, at *12 (D.D.C. Sept. 25, 2019); Estate of Doe v. Islamic Republic of Iran, 808 F. Supp.

2d 1, 6, 14 (D.D.C. 2011); Cohen v. Islamic Republic of Iran, 238 F. Supp. 3d 71, 81 (D.D.C.

2017); Haim v. Islamic Republic of Iran, 784 F. Supp. 2d 1, 11 (D.D.C. 2011). Those injuries

were, in the ordinary sense, “caused by” the “act of . . . extrajudicial killing”—a bombing, for

example, might kill some of the victims and maim others. See Salzman, 2019 WL 4673761 at

*12. In that scenario, both sets of victims would suffer “personal injury or death . . . caused by

an act of . . . extrajudicial killing,” 28 U.S.C. § 1605A(a)(1)—that is, to continue the example,

the bombing was, in fact, an act of extrajudicial killing and that act caused both the deaths and

the injuries. “Congress enacted the terrorism exception expressly to bring state sponsors of

terrorism . . . to account for their repressive practices,” Han Kim, 774 F.3d at 1048, and that

rationale extends to both injured and killed victims, see Salzman, 2019 WL 4673761, at *12.

Although a closer question, the Court is also persuaded that the waiver of sovereign

immunity includes attempted extrajudicial killings that result in serious physical injuries, even if

no one is killed in the attack. As Judge Kollar-Kotelly explained in Karcher v. Islamic Republic

of Iran, “[t]he text of Section 1605A(a)(1) does not expressly address attempts to commit acts

that are listed in that provision,” but it does “strip[] immunity” both for “personal injury or death

that was caused by an act of . . . extrajudicial killing . . . or the provision of material support or

resources for such an act.” 396 F. Supp. 3d at 57–58. “Nothing on the face of Section

1605A(a)(1),” Judge Kollar-Kotelly continued, “requires that the material support or resources

for an intended extrajudicial killing actually result in someone’s death, as long as the victim

represented in the case was injured.” Id. Finding further support in both the legislative history

of the statute and the D.C. Circuit’s admonishment that the FSIA be “interpret[ed] . . . flexibly

and capaciously,” Judge Kollar-Kotelly held that “material support for an incomplete act of

48 extrajudicial killing falls within the scope of Section 1605A(a)(1).” Id. at 57 (alteration in

original). Several courts others have taken this same approach, “f[inding] that injuries resulting

from ‘deliberated’ attempts to kill fall within the scope of Section 1605A(a)(1).” Id. at 58; see

also Schertzman Cohen v. Islamic Republic of Iran, No. 17-1214, 2019 WL 3037868, at *3

(D.D.C. July 11, 2019); Gill, 249 F. Supp. 3d at 99.

Here, the attacks on Rivkin, Glick, and Brauner were brutal and, in each case, evidenced

an intent to kill. Rivkin was stabbed twice in his upper torso with a 16 cm knife, Dkt. 33 at 62

(Spitzen Decl. ¶ 163); Dkt. 72 at 2 (M. Rivkin Decl. ¶¶ 6–7), and he lost consciousness for a day

and a half, Dkt. 72 at 2 (M. Rivkin Decl. ¶¶ 6–7). Glick was shot four times and suffered injuries

to his liver, spine, intestines, lung, ribs, hand, and throat. Dkt. 52 at 4 (Yehudah Glick Decl. ¶

24). He was placed in a medically induced coma for 10 days. Id. at 5 (Yehudah Glick Decl. ¶¶

25–26). Brauner survived the rocket attack, but suffered grievous wounds; a piece of shrapnel

entered his back and exited through his stomach, rupturing his kidney and requiring its removal

along with that of part of his colon. Dkt. 39 at 2–3 (S. Brauner Decl. ¶¶ 7–8, 10–11).

Compensating the victims of such brutal attacks, which were designed to cause the victims’

deaths, to inflict suffering, and to inspire terror, directly furthers the purpose of the terrorism

exception to the FSIA. Van Beneden, 709 F.3 at 1167 & n.4 (“Guided by the [FSIA’s] text and

purpose, we interpret its ambiguities flexibly and capaciously”).

At least on the present record and based on the current briefing, however, the Court is not

persuaded that the terrorism exception is sufficiently capacious to include the missile attack that

struck the Parnases’ house and caused them related emotional distress. That missile did not kill

or wound anyone. See Dkt. 67 at 1–2 (D. Parnas Decl. ¶¶ 5, 8). Nor were any of the Parnas

Plaintiffs home—or even in the immediate vicinity—when the missile struck. See Dkt. 69 at 1–2

49 (Daniella Parnas ¶¶ 7–11). Concluding that the terrorism exception permits federal district

courts to assert jurisdiction over foreign states in these circumstances would constitute a

substantial expansion on the law as applied to date and threatens to open the door to a broad

array of claims that Congress never contemplated.

Although courts must, in general, resolve jurisdictional questions before reaching the

merits, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998), in the present

context, the questions of jurisdiction and the merits merge. The jurisdictional test and the federal

cause of action are, in relevant respects, the same, see Foley v. Syrian Arab Republic, 249 F.

Supp. 3d 186, 205 (D.D.C. 2017) (explaining that § 1605A(c) “creates a cause of action for the

same conduct that gives rise to jurisdiction under the terrorism exception”), and the identical

language found in § 1605A(c) and § 1605A(a)(1) must be given the same effect, see Erlenbaugh

v. United States, 409 U.S. 239, 243 (1972) (“[A] legislative body generally uses a particular

word with a consistent meaning in a given context.”). Thus, if the Parnases’ claims fail under §

1605A(c), they also fail under § 1605A(a)(1).

Section 1605A(c) does not itself provide the “substantive basis” for claims brought under

the FSIA private right of action. Maalouf v. Islamic Republic of Iran, No. 16-0280, 2020 WL

805726, at *5 (D.D.C. Feb. 18, 2020). Courts must, instead, “rely on well-established principles

of law, such as those found in the Restatement (Second) of Torts and other leading treatises, as

well as those principles that have been adopted by the majority of state jurisdictions to outline

the boundaries of [plaintiffs’] theories of recovery.” Id. (quoting Oveissi II, 879 F. Supp. 2d at

54) (alteration in original). Here, Plaintiffs allege that the Parnases “suffered severe

psychological, emotional and other personal injuries as a result of the 2012 [t]errorist [r]ocket

[a]ttack.” Dkt. 1 at 30 (Compl. ¶ 127). The closest common-law analogues to that claim that the

50 Court can discern are claims for intentional infliction of emotional distress or for assault, but

neither claim is established on the facts present here.

As explained in the Restatement (Second) of Torts, “[o]ne who by extreme and

outrageous conduct intentionally or recklessly causes severe emotional distress to another is

subject to liability for such emotional distress, and if bodily harm to the other results from it, for

such bodily harm.” Restatement (Second) of Torts § 46. “[A]n act of terrorism . . . is by its very

nature considered extreme and outrageous conduct.” Reed v. Islamic Republic of Iran, 845 F.

Supp. 2d 204, 212 (D.D.C. 2012); see also Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8,

22 (D.D.C. 2009). The Parnases, moreover, have offered evidence of their severe emotional

distress. See, e.g., Dkt. 35-32 (Strous Report concerning A.P.); Dkt. 35-33 (Strous Report

concerning Dana Parnas); Dkt. 35-34 (Strous Report concerning Daniella Parnass); Dkt. 35-35

Strous Report concerning Noa Parnas). The problem they face, however, is that § 1605A(c) does

not establish a stand-alone federal law tort for intentional infliction of emotional distress; rather,

as applicable here, it creates a tort “for personal injury or death that was caused by an act

of . . . extrajudicial killing.” 28 U.S.C. §§ 1605A(a)(1) & (c). “[W]ell-established principles of

law,” then, fill the interstices of that federal law claim. Maalouf, 2020 WL 805726, at *5

(quoting Oveissi II, 879 F. Supp. 2d at 54). The Court must, accordingly, look to the tortious

conduct at issue—material support for an act of extrajudicial killing—and apply the Restatement

to that conduct.

Under the Restatement, “conduct which is tortious because intended to result in bodily

harm”—for present purposes, “intended to result in” the extrajudicial killing of innocent

people—“does not make the actor liable for an emotional distress which is the only legal

consequence of his conduct.” Restatement (Second) of Torts § 47. To be sure, the destruction of

51 the Parnases’ home was, in some sense, a “legal consequence of” Hamas’s conduct. But the

FSIA does not provide a stand-alone claim for injuries to property or emotional distress resulting

from such a loss. See 28 U.S.C. § 1605A(d) (permitting recovery for “foreseeable property loss”

only after a successful claim for personal injury has been brought). As a result, in the absence of

some “personal injury or death” resulting from the rocket attack, 28 U.S.C. § 1605A(a),

established principles of law do not support a claim for emotional distress alone resulting from

that attack. 7 In this important respect, the Parnases’ claims differ from those of Rivkin, Glick,

and Brauner, who were all the targets of attempted extrajudicial killings and who each suffered

grave physical injuries, thus supporting their claims and the claims of their family members for

emotional distress damages.

Victims of failed attempts to inflict bodily harm do have a remedy under tort law (and, at

least at times, under the FSIA), but it is under an assault (rather than intentional infliction of

emotional distress) theory, and it provides recovery only for “emotional distress [that] consists of

an apprehension of the immediate infliction of an intended harmful or offensive contact.”

Restatement (Second) of Torts § 47 cmt. a (citing Restatement (Second) of Torts § 21–34). To

prevail on an assault theory for attempted extrajudicial killing under the FSIA, a plaintiff must

show that the “(1) [defendants] acted intending to cause a harmful contact with, or an imminent

apprehension of such a contact by, those attacked[,] and (2) those attacked were thereby put in

such imminent apprehension.” Schertzman Cohen, 2019 WL 3037868, at *5 (quoting Wultz v.

Islamic Republic of Iran, 864 F. Supp. 2d 24, 35 (D.D.C. 2012)) (alterations in original). None

of the Parnases, however, were home or even in the immediate vicinity at the time of the attack,

7 The Restatement provides the following (unfitting) illustration: “A, who is annoyed by the barking of B’s pet dog, shoots at the dog intending to kill it. He misses the dog. B suffers severe emotional distress. A is not liable to B.” Restatement (Second) of Torts § 47 cmt. a, ill. 2.

52 nor do they assert that they were put in “imminent apprehension” of physical harm. See Dkt. 69

at 1–2 (Daniella Parnas ¶¶ 7–11).

The Court is, therefore, unpersuaded on the current record and briefing that the FSIA’s

terrorism exception should be construed to encompass attempted extrajudicial killings in which

no one suffered physical injuries and no one was even placed in imminent apprehension of

physical harm. Permitting recovery under such circumstances would open the door to a cascade

of claims for emotional distress that are unmoored to the types of grievous injury, death, or

imminent, life-altering peril resulting from the uniquely heinous acts that Congress elected to

redress: torture, extrajudicial killing, aircraft sabotage, and hostage taking. 28 U.S.C.

1605A(a)(1). Absent some evidence that Congress intended to open that door—or even briefing

on the question—the Court will not do so.

b. Deliberated

With respect to the remainder of the Plaintiffs’ claims, they must show that the attacks

that caused their injuries were “deliberated,” in order to qualify as an “extrajudicial killing.” “A

‘deliberated’ killing is simply one undertaken with careful consideration, not on a sudden

impulse.” Owens v. Republic of Sudan, 174 F. Supp. 3d 242, 263 (D.D.C. 2016) (“Owens

III”) (citing Webster’s Third New International Dictionary 596 (1993); 4 The Oxford English

Dictionary 414 (2d ed. 1989); Black’s Law Dictionary 492 (9th ed. 2009)), aff’d, 864 F.3d 751

(D.C. Cir. 2017), vacated in part and remanded on other grounds sub nom. Opati v. Republic of

Sudan, No. 17-1268, 2020 WL 2515440 (U.S. May 18, 2020). Here, there is ample evidence that

the attacks in question were planned. For example, more than one of the perpetrators had

expressed their desires to die as martyrs on social media in advance of the attacks, see, e.g., Dkt.

33 at 55 (Spitzen Decl. ¶ 141) (discussing attacker that killed Taylor Force); id. at 67 (Spitzen

53 Decl. ¶ 174), and one even posted a photo of himself “masked and sitting in a car with emojis of

smiley faces and knives” “[s]everal days prior to the attack” in which he stabbed one of the

Plaintiffs, id. at 64 (Spitzen Decl. ¶ 169) (discussing Menachem Rivkin’s attacker). Similarly,

Colonel Spitzen explained that the Bus 78 attack was the product of significant planning,

training, and forethought, given the efficiency with which the two attackers were able to trap and

kill passengers. Id. at 29–30 (Spitzen Decl. ¶ 78); Dkt. 104 at 61 (Hrg. Tr. 61:2–25). With

respect to the shooting of Yehudah Glick, Colonel Spitzen explained that the evidence

demonstrated that “[t]he assassination attempt . . . was a planned, premeditated terrorist attack.”

Dkt. 33 at 125 (Spitzen Decl. ¶ 325). Similarly, Colonel Spitzen explained that the attack on the

yeshiva was “meticulously planned,” “demonstrate[d] characteristics of organized [terrorist]

attacks” and showed signs of “careful intelligence and logistic preparations . . . made prior to the

attack.” Id. at 74–75 (Spitzen Decl. ¶¶ 194, 196).

The rocket attacks were also “deliberated.” According to Colonel Spitzen, Hamas has a

“policy with respect to rocket launching” and does so—or permits other Gaza-based groups to do

so—only “when such actions [are] in line with its objectives.” Id. at 98 (Spitzen Decl. ¶ 256);

see also id. at 113 (Spitzen Decl. ¶ 296) (explaining that Hamas enforced its authority “over the

other terrorist organizations strictly, effectively, and aggressively, in such a manner that any

firing began or ended on its orders” (emphasis added)). In particular, the 2011 attack on the

synagogue was part of coordinated rocket campaign during a particularly active period of

conflict with Israel. See id. at 106–07 (Spitzen Decl. ¶¶ 278–80).

Finally, there is no evidence whatsoever that any of these attacks were authorized “by a

prior judgment affording judicial guarantees o[f] due process,” Foley, 249 F. Supp. 3d at

202; see also Owens IV, 864 F.3d at 770, or that it was “lawfully carried out under the authority

54 of a foreign nation.” TVPA § 3(a). To the contrary, for several of the attacks, either Hamas or

PIJ, both non-state actors, claimed credit. Dkt. 33 at 55–56 (Spitzen Decl. ¶ 144) (Taylor Force);

id. at 38 (Spitzen Decl. ¶ 100) (Bus 78 massacre); id. at 128 (Spitzen Decl. ¶ 335) (Yehudah

Glick); id. at 78 (Spitzen Decl. ¶ 202) (March 2008 attack). And, with respect to the remaining

attacks, the Court credits Colonel Spitzen’s unrebutted conclusion that Hamas was responsible.

See supra Parts II.D & II.H–I.

* * *

The Court, accordingly, concludes that, with the exception of the destruction of the

Parnases’ home, all of the attacks at issue qualify as “extrajudicial killing[s]” under 28 U.S.C.

§ 1605A(a)(1).

3. Iran’s Provision of Material Support for Hamas and PIJ’s Acts of Extrajudicial Killing

The FSIA’s terrorism exception applies when a plaintiff seeks money damages for

“personal injury or death that was caused by . . . the provision of material support or resources

for” an “act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking,” so long as that

support was provided 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). Section

1605A(h)(3) defines “material support or resources” by reference to 18 U.S.C. § 2339A, the

criminal material support statute. Section 2339A defines “material support or resources” to

mean

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.

55 18 U.S.C. § 2339A(b)(1).

The Court has found that, during the years leading up to and surrounding the attacks at

issue, Iran provided tens—if not hundreds—of millions of dollars’ worth of currency to Hamas

and PIJ. See supra Part II.A. Iran also provided substantial operational capacity to both groups,

including rockets and other weapons, weapons technology, and training of operatives. See id.

The Court therefore concludes that Iran provided both Hamas and PIJ “material support” in the

form of, inter alia, “currency,” “training,” “expert . . . assistance,” and “weapons” within the

meaning the FSIA. See 28 U.S.C. § 1605A(h)(4); 18 U.S.C. § 2339A(b)(1).

4. Syria’s Provision of Material Support for Hamas and PIJ’s Acts of Extrajudicial Killing

Plaintiffs rely on a slightly different theory to establish Syria’s provision of material

support to Hamas and PIJ. Plaintiffs’ evidence establishes that Syria offered both Hamas and PIJ

safe bases from which to grow and mature as organizations and to carry out their operations,

although Syria withdrew that sanctuary for Hamas in 2012. The provision of this safe haven

assisted both the growth and development of the two groups generally and their capacities to

carry out the attacks at issue. See Dkt. 29 at 28–29 (Berti Decl. ¶ 50). Those courts that have

considered the question have held that safe haven can, at least at times, fall within the material

support statute’s prohibition on the provision of “safehouses” to terrorist organizations. See Rux

v. Republic of Sudan, 461 F.3d 461, 470–71 (4th Cir. 2006); Owens v. Republic of Sudan, 412 F.

Supp. 2d 99, 108 (D.D.C. 2006) (“Owens I”).

In Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir. 2006), for example, the Fourth

Circuit considered whether Sudan’s provision of safe haven to Osama bin Laden and other al

Qaeda operatives amounted to “material support” under the FSIA. Id. at 470–71. The Rux

plaintiffs offered evidence that, among other things, the Sudanese government and Osama bin

56 Laden and al Qaeda had jointly owned and operated banks and other companies in that country,

“gave [a]l Qaeda special authority to avoid paying taxes and duties ordinarily due to the

Republic of the Sudan,” permitted the “use of a diplomatic pouch to send explosive materials

belonging to Osama bin Lad[e]n for [a]l Qaeda outside the Republic of Sudan,” and allowed al

Qaeda to “operate training camps” in Sudan “for the purpose of training terrorists” to

“manufacture bombs and [other] explosives.” Id. at 468–69. Sudan appeared in the case and

argued that the term “safehouses” in the material support statute must be construed to include

only discrete physical structures, not the more abstract and amorphous harboring that only a

sovereign state can provide. Id. at 470–71. The Fourth Circuit rejected that “restrictive

interpretation” and held that Sudan had provided a “safehouse,” relying in part on a decision

from this district holding that, “[i]nsofar as the government of the Republic of Sudan

affirmatively allowed and/or encouraged al-Qaeda . . . to operate [its] terrorist enterprise[] within

its borders, and thus provided a base of operations for the planning and execution of terrorist

attacks . . . Sudan provided a ‘safehouse’ within the meaning of 18 U.S.C. § 2339A, as

incorporated in 28 U.S.C. § 1605(a)(7).” Id. at 471 (quoting Owens I, 412 F. Supp. 2d at 108).

In Owens I, the decision relied upon in Rux, Judge Bates was presented with allegations

of similar conduct by Sudan in support of al Qaeda, as well as additional allegations that the

Sudanese government “employed al Qaeda to manufacture chemical weapons,” offered military

protection for weapons shipments to and from al Qaeda in an out of the country, and provided

other special treatment in the form of preferential immigration treatment and protection from

arrest by local law enforcement authorities. 412 F. Supp. 2d at 106–07. Judge Bates found that

“many of the[se] alleged acts do in fact fit within several of the section 2339A categories” and

57 rejected Sudan’s argument that “safehouses” should be narrowly construed so as not to cover

such harboring by a sovereign state. Id. at 107–08.

The Court is persuaded by and adopts the conclusion that the term “safehouse,” as used in

the material support statute, includes foreign governmental encouragement or assent to terrorist

organizations setting up shop within their borders. Here, Plaintiffs’ experts testified that both

Hamas and PIJ conducted significant aspects of their operations from within Syrian territory and

that these Syrian bases of operations helped both groups grow in their operations and influence.

Whether the Syrian government encouraged any specific activity linked to terrorism within its

borders is, at least on the present record, less clear than the link was in Owens I and Rux.

Nevertheless, the Court is satisfied on the present record that the term “safehouses,” as used in §

2339A, sweeps in Syria’s conduct here.

Plaintiffs rely on declarations and live testimony from Dr. Berti and Dr. Deeb, who this

Court qualified as expert witnesses on the topics of “Syrian support for Hamas and [PIJ].” Dkt.

105 at 8–9 (Berti); see also id. at 96–97 (Deeb). “The testimony of expert witnesses is of crucial

importance in terrorism cases, because firsthand evidence of terrorist activities is difficult, if not

impossible, to obtain.” Owens IV, 864 F.3d at 787 (internal citations omitted). Direct evidence

is often unavailable as “[p]erpetrators of terrorism typically lie beyond the reach of the courts”

and actively “avoid detection,” and “[e]yewitnesses in a state that sponsors terrorism” are both

hard to locate and “may be unwilling to testify for fear of retaliation.” Id. As in this case,

“sovereigns themselves often fail to appear and to participate in discovery.” Id. “[R]eliance

upon secondary materials” and the testimony of experts “is often critical” in order to make up for

this “dearth of firsthand evidence” in “establish[ing] the factual basis of a claim under the FSIA

terrorism exception.” Id.

58 Plaintiffs experts testified that Syria is and has been “one of the most authoritarian

societies in the world.” Dkt. 105 at 45 (Berti). As a result, “[a]ny political organization that

wants to operate in Syria needs to have more than the blessing but the open facilitation of the

government.” Id. Both PIJ and Hamas maintained operational bases in Damascus for well over

a decade before the first of the attacks the injured plaintiffs. See Dkt. 29 at 12–13 (Berti Decl.

¶¶ 23–25) (explaining that Hamas established an office in Damascus in the early 1990s and

moved its political bureau there in the early 2000s); id. at 17 (Berti Decl. ¶ 32) (explaining that

PIJ has “maintained a permanent base in Syria” since 1989). From those bases, both groups

were able to facilitate fundraising and arms smuggling through Syria, as well as plan and

coordinate terrorist attacks with their members in Gaza. Id. at 15, 23, 29–30 (Berti Decl. ¶¶ 28,

41, 52–54); Dkt. 30 at 5–6 (Deeb Decl. ¶ 19). Hamas also set up a camp near Damascus to train

its operatives. Dkt. 29 at 31 (Berti Decl. ¶ 55). Because Israel would face greater risks if it

sought to encroach on Syrian sovereignty by targeting Hamas and PIJ leaders in Damascus than

targeting leaders in Gaza, Hamas and PIJ were able to conduct all of these operations in

Damascus with lessened fear of reprisal from Israel or fear of prosecution for “arms dealing,

money laundering, terrorism,” or similar offenses. See Dkt. 105 at 19 (Berti). The benefits of

operating in Syria, rather than Gaza, were a “very important force multiplier for Hamas.” Id. at

19–20 (Berti)

The evidence also shows that Syria “affirmatively allowed” the two groups to establish

themselves in the Syrian capital. Not only did the regime not “forcefully or systematically

crack[] down” on Hamas’s activities, Dkt. 29 at 25 (Berti Decl. ¶ 45), it offered affirmative

support for and endorsement of Hamas’s activities. Syria and Hamas had, since the 1990s, been

political partners in opposing various Israeli-Palestinian peace negotiations, see Dkt. 105 at 100–

59 01 (Deeb); id. at 16–17 (Berti), and, after coming to power in 2000, Bashar Al-Assad only

further increased support for Hamas, just as the organization was relocating its important

political bureau to Damascus, see id. at 17–18. Moreover, as Dr. Berti explained, the Syrian

government, “[o]n many occasions,” “made statements with respect to wanting to guarantee

Hamas and its leaders[’] safety.” Dkt. 105 at 19 (Berti). Those leaders that Syria sought to keep

safe included three individuals classified as Specially Designated Global Terrorists by United

States Department of Treasury and who had relocated to Damascus. Dkt. 29 at 19–20 (Berti

Decl. ¶ 34).

The Syrian government also offered important political support to Hamas, and there is

some evidence that Syria provided financial support to Hamas. In 1999, Syrian President Hafez

al-Assad arranged for Hamas leaders to join a meeting in Damascus between him and Iranian

President Mohammad Khatami. Dkt. 29 at 27 (Berti Decl. ¶ 47). Over the following decade,

Hamas continued to meet with Iranian officials in Damascus, id. as Iran funneled untold millions

of dollars to the group, see Part II.A. A few years later, in 2002, it was reported that Syria

offered Hamas and PIJ aid in exchange for increased attacks against Israel. Dkt. 29 at 25–26

(Berti Decl. ¶ 45). Dr. Berti also testified—although without mentioning dates or quantities—

that Syria was not only a thoroughfare for rockets and rocket parts to Gaza from Iran, but it also

directly provided rocket parts to Hamas. Dkt. 105 at 50–51 (Berti). Similarly, while there is a

“debate” about the “extent” and “consisten[cy]” of Syrian financial support to Hamas, “there[]

[are] many reports that indicate financial” support. Id. at 21–22 (Berti).

PIJ’s relationship to Syria is “similar to that of Hamas;” Dkt. 105 at 24–25 (Berti), like

Hamas, it had found a safe haven in Damascus by the 1990s, see Dkt. 29 at 17 (Berti Decl. ¶ 32),

which allowed it to grow and to gain in strength over the decades that followed, Dkt. 105 at 24–

60 25 (Berti). In Syria, PIJ operated a camp where it trained operatives that engaged in suicide

attacks. See id. at 32, 35 (Berti). Syria also “talked about providing security for [PIJ’s]

leadership,” and, when “confronted or asked about” their support for PIJ, “the answer has not

been no.” Id. at 46 (Berti). Although the Syrian government has claimed that its support was

limited to “political and social activities,” id., PIJ, unlike Hamas, does not have substantial

operations of that sort. See id. at 24–25 (Berti).

The evidence of Syria’s active encouragement of PIJ and Hamas’s operations in

Damascus does not rise to the level of support that the courts found in Rux or Owens I that Sudan

provided to al-Qaeda. But given Syria’s authoritarian government, the openness and duration of

Hamas and PIJ’s operations in Damascus, Syria’s ability to expel Hamas as soon as it suited the

Syrian government to do so, Dkt. 105 at 36 (Berti), and the other evidence of Syrian support, the

Court finds that Syria did “affirmatively allow” or “encourage” Hamas and PIJ to operate there

and thus provided a “safehouse” within the meaning of the FSIA. Owens I, 412 F. Supp. 2d at

108; cf. Han Kim, 774 F.3d at 1049–51 (permitting a finding of liability under the FSIA’s

terrorism exception without any direct evidence based on expert testimony that North Korea

typically tortured and killed individuals in labor camps and the inference that North Korea did

the same in plaintiff’s particular case).

5. Causation

The Court must also consider whether Plaintiffs’ injuries were “caused by” provision of

material support to Hamas and PIJ. 28 U.S.C. § 1605A(a)(1). Plaintiffs need not show that Iran

or Syria “specifically knew of or intended its support to cause” the particular attacks in question,

Owens IV, 864 F.3d at 798, or even that Iran or Syria’s material support was a “but for” cause of

their injures, Kilburn, 376 F.3d at 1128. Instead, the FSIA requires only a “showing of

61 ‘proximate cause,’” which is satisfied where a Plaintiff can show “some reasonable connection

between the act or omission of the defendant and the damage which the plaintiff has suffered.”

Kilburn, 376 F.3d at 1128 (quoting Prosser & Keeton on the Law of Torts 263 (5th ed. 1984)).

This inquiry thus “contains two similar but distinct elements.” Owens IV, 864 F.3d at 794.

“First, the defendant’s actions must be a ‘substantial factor’ in the sequence of events that led to

the plaintiff’s injury.” Id. (quoting 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. (quoting same).

Plaintiffs have not offered evidence that either Iran or Syria’s support was tied to each of

the attacks that caused their injuries. But such a “nexus” is not necessary because funds—and, in

certain instances, arms and other support—are fungible, and the FSIA could hardly be

interpreted to condition Plaintiffs’ recovery on Hamas and PIJ’s “careful bookkeeping.”

Kilburn, 376 F.3d at 1130. Here, Plaintiffs’ have shown that Iran’s financial and military aid to

the two groups was essential to each group’s operating capacity and that, without Iran’s backing,

both groups would be substantially weakened. See Part II.A. Thus, Iran’s support to both PIJ

and Hamas was a substantial factor in the eight attacks that caused the Plaintiff’s injuries.

Similarly, when asked by the Court whether “Hamas would have been in a position to

have committed the terrorist attacks that are at issue in this case . . . if it were not for Syria’s

provision of material support,” Dr. Berti opined that “without the type of support that Syria has

provided to Hamas, Hamas would not be what it is today from a political, social and military

perspective” and that “the attacks that [were] perpetrated . . . are tightly connected to the role

Syria played.” Dkt. 105 at 51–52 (Berti); see also id. at 53 (Berti) (explaining that “the answer

wouldn’t be very different” with respect to PIJ, but noting that PIJ is a “smaller, less

62 sophisticated organization”). Although Hamas did leave Syria after it took the side of the Sunni

rebels in the Syrian civil war in 2012, id. at 36 (Berti), Plaintiffs have shown that “the continuous

support which Syria provided to Hamas in the previous years contributed to giving the group the

military edge and sophistication it needed to be able to conduct and carry out successful violent

operations” for many years thereafter, up to and including the 2016 attacks at issue here. See

Dkt. 29 at 35–36 (Berti Decl. ¶ 66). Thus, Syria’s support was also a substantial factor in the

attacks that caused Plaintiffs’ injuries.

This, then, leaves the question whether Plaintiffs’ injuries resulting from the attacks at

issue were “reasonably foreseeable” or “natural consequence[s]” of Defendants’ conduct. Owens

IV, 864 F.3d at 794. On this issue, too, the record is clear. Iran not only supported these groups,

they actively encouraged them to carry out attacks on civilians in Israel as part of a broader

geopolitical strategy and provided both groups with the weapons and know-how to do so

effectively. See supra Part II.A. Although Syria’s support took a different form, it, too, was part

of a broader geopolitical strategy that supported Hamas and PIJ’s operations and necessarily

understood that Syrian support would enable them to carry out attacks on civilians in Israel. See,

e.g., Dkt. 29 at 25–26 (Berti Decl. ¶ 45) The death and injury to innocent people and the

suffering of their families was, by any measure, foreseeable. Owens IV, 864 F.3d at 797–98

(finding the 1998 embassy bombings by al Qaeda to be a reasonably foreseeable consequence of

Sudan’s offer in 1991 to shelter Osama Bin Laden); see also Salzman, 2019 WL 4673761, at

*14. Finally, although Syria’s support for Hamas waned in 2012, Dkt. 105 at 36 (Berti), it was

entirely foreseeable that Syria’s earlier support in making Hamas what it is today would lead to

deaths and injuries several years after 2012.

6. Federal Cause of Action

63 Having concluded that the Court possesses subject-matter jurisdiction, little else is

required to show that those Plaintiffs who are U.S. nationals are entitled to relief under the

federal cause of action the Congress enacted in 2008 as part of the National Defense

Authorization Act. See Pub. L. No. 110-181, § 1083, 122 Stat. 338–44 (2008) (codified at 28

U.S.C. § 1605A(c)). Although the federal cause of action was added to the FSIA in 2008,

“§ 1605A(c) operates retroactively” and “plainly applies . . . to the pre-enactment conduct of a

foreign sovereign.” Owens IV, 864 F.3d at 815. There is almost total “overlap between the

elements of [§ 1605A(c)’s] cause of action and the terrorism exception to foreign sovereign

immunity,” Foley, 249 F. Supp. 3d at 205, and 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—with one minor exception: a foreign state is only liable to “a

national of the United States,” “a member of the armed forces,” “an employee [or contractor] of

the [U.S.] Government . . . acting within the scope of the employee’s employment,” or “the legal

representative of ” any such person. 28 U.S.C. § 1605A(c).

This one exception affects the claims of the non-U.S. national (Israeli national) plaintiffs

in this case. For jurisdictional purposes, this fact is non-consequential, because the waiver of

foreign sovereign immunity applies so long as “the claimant or the victim was, at the time of

the” terrorist attack, a U.S. national, member of the armed forces, or government employee. 28

U.S.C. § 1605A(a)(2)(A)(ii) (emphasis added). The federal cause of action, however, is more

restrictive and limits plaintiffs to those who are themselves U.S. nationals, members of the armed

services, or government employees. 28 U.S.C. § 1605A(c). Accordingly, the Court concludes

that, subject to a showing that they suffer compensable losses, the U.S.-national plaintiffs have,

for the reasons described above, carried their burden of demonstrating that they are entitled to

64 relief under § 1605A(c). The Court will separately analyze whether the Israeli plaintiffs have

stated a cause of action.

B. Personal Jurisdiction

The Court also concludes that it has personal jurisdiction over the Islamic Republic of

Iran, MOIS and the Syrian Arab Republic. Under the FSIA, the Court has personal jurisdiction

over a foreign state “as to every claim for relief over which the [Court] ha[s] jurisdiction . . .

where service has been made under section 1608.” 28 U.S.C. § 1330(b). Thus, “[i]n order to sue

a foreign state or one of its political subdivisions, a plaintiff must effect service in compliance

with” 28 U.S.C. § 1608(a). Barot v. Embassy of the Republic of Zambia, 785 F.3d 26, 27 (D.C.

Cir. 2015).

Section 1608(a) “provides four methods of service in descending order of preference,”

id.:

(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

65 channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.

28 U.S.C. § 1608(a).

The first two mechanisms of effecting service—by delivery of the summons and

complaint either “in accordance with any special arrangement for service between the plaintiff

and the foreign state” under § 1608(a)(1) or “in accordance with an applicable international

convention on service of judicial documents” under § 1608(a)(2)—were unavailable to Plaintiffs

in this case. See Dkt. 17 at 1. No “special arrangement” governs service between the United

States and Iran or Syria, and neither country is party to an international convention on service of

judicial documents. See Braun v. Islamic Republic of Iran, 228 F. Supp. 3d 64, 77–78 (D.D.C.

2017). As a result, Plaintiffs attempted service under the third alternative, which requires service

by mail from “the clerk of the court to the head of the ministry of foreign affairs of the foreign

state.” 28 U.S.C. § 1608(a)(3). On September 13, 2016, Plaintiffs initiated service as to all

Defendants under § 1608(a)(3), Dkt. 5; Dkt. 6, and, at Plaintiffs’ request, the clerk of court,

mailed the relevant documents to Syria, Iran, and MOIS on September 27, 2016. Dkt. 7. On

October 12, 2016, Plaintiffs notified the Court that the documents to Iran and MOIS were

undelivered. Dkt. 8. The documents to Syria, however, were delivered on November 14, 2016.

Dkt. 14.

Plaintiffs then proceeded to serve Iran and MOIS pursuant to § 1608(a)(4). That

provision requires service by mail from the clerk of court to the Secretary of State, who must

then transmit the required material “through diplomatic channels to the foreign state.” 28 U.S.C.

§ 1608(a)(4). The Department of State must then send “the clerk of the court a certified copy of

the diplomatic note indicating when the papers were transmitted.” Id. Plaintiffs provided the

66 clerk with the relevant documents and requested service pursuant to § 1608(a)(4) on October 31,

2016. Dkt. 9. The clerk mailed these materials to the State Department on May 26, 2017. Dkt.

19. On September 14, 2017, the State Department notified the Clerk that the documents had

been delivered to the Islamic Republic of Iran and to MOIS. Dkt. 20. As the Department

explained, “[b]ecause the United States does not maintain diplomatic relations with the

government of Iran,” the documents were transmitted to the Embassy of Switzerland in Iran,

which then transmitted the materials to the Iranian Ministry of Foreign Affairs on July 18, 2017.

Id. at 1, 4. The Swiss Embassy reported that the Iranian Ministry of Foreign Affairs “refused” to

accept the documents that same day. Id. at 4. After the Islamic Republic of Iran failed to

respond, the clerk entered a default. Dkt. 23.

Because Plaintiffs accomplished service pursuant to 28 U.S.C. § 1608(a)(3) on the Syrian

Arab Republic and pursuant to 28 U.S.C. § 1608(a)(4) on the Islamic Republic of Iran and

MOIS, the Court possesses personal jurisdiction over all three defendants. See 28 U.S.C.

§ 1330(b).

C. Liability for State Law Claims

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

most of the plaintiffs, these claims are redundant of their federal law claims and do not provide

any additional right to recover. As noted above, however, thirteen of the plaintiffs (including

Yehudah Glick, who has renounced his U.S. citizenship) are not U.S. nationals, members of the

U.S. armed forces, or U.S. employees or contractors, see Dkt. 109 (Yehudah Glick renunciation

of U.S. citizenship); Dkt. 57 at 1 (Atara Katz Decl. ¶ 1); Dkt. 61 at 1 (Eytan Moriah Decl. ¶ 1);

Dkt. 62 at 1 (Ifat Cohen Decl. ¶ 2); Dkt. 64 at 1 (Tzur Moriah Decl. ¶ 1); Dkt. 59 at 1 (Chagit

Gibor ¶ 1); Dkt. 80 at 1 (Yaacov Shitrit Decl. ¶ 1); Dkt. 71 at 1 (B. Rivkin Decl. ¶ 1); Dkt. 52 at

67 1 (Yehudah Glick Decl. ¶ 1); Dkt. 38 at 1 (N. Brauner ¶ 4) (C.Y.B., M.H.B., and Y.A.L.B); see

Dkt. 82 (omitting C.Y.B., M.H.V., and Y.A.L.B. from list of individuals with U.S. passports).

These plaintiffs, therefore, are not entitled to recover under the § 1605A(c) private right of

action. They can, however, seek to recover damages under state tort law. See Owens IV, 864

F.3d at 809. Because the U.S.-national plaintiffs are entitled to relief under the federal law cause

of action, the Court will limit its consideration of the state law claims to the thirteen non-U.S.-

national plaintiffs.

Historically, the state-sponsored terrorism exception to the FSIA was not understood to

create a federal cause of action against foreign states (as opposed to state officials) but, rather, to

operate merely as a “pass-through” for state law claims. Id. at 764 (quoting Pescatore v. Pan

Am. World Airways, Inc., 97 F.3d 1, 12, (2d Cir. 1996)); see also Cicippio-Puleo v. Islamic

Republic of Iran, 353 F.3d 1024, 1033 (D.C. Cir. 2004). When Congress amended the law to

provide a federal cause of action, see National Defense Authorization Act for Fiscal Year 2008 §

1083, it did not upset the prior law permitting plaintiffs to assert state law claims after clearing

the hurdle of foreign sovereign immunity, see Owens IV, 864 F.3d at 807–09. Although most

plaintiffs proceeding under the state-sponsored terrorism exception to the FSIA need not rely on

state tort law, the “pass-through approach remains” a “viable” option for those who are unable to

invoke the federal cause of action, id. at 809, such those thirteen plaintiffs who are Israeli

nationals. Dkt. 38 at 1 (N. Brauner ¶ 4) (C.Y.B., M.H.B., and Y.A.L.B); Dkt. 57 at 1 (Atara

Katz Decl. ¶ 1); Dkt. 61 at 1 (Eytan Moriah Decl. ¶ 1); Dkt. 62 at 1 (Ifat Cohen Decl. ¶ 2); Dkt.

64 at 1 (Tzur Moriah Decl. ¶ 1); Dkt. 59 at 1 (Chagit Gibor ¶ 1); Dkt. 80 at 1 (Yaacov Shitrit

Decl. ¶ 1); Dkt. 71 at 1 (B. Rivkin Decl. ¶ 1); Dkt. 52 at 1 (Yehudah Glick Decl. ¶ 1).

68 1. Choice of Law

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

Because “[t]he FSIA does not contain an express choice-of-law provision” but, rather, specifies

that “a foreign state stripped of its immunity ‘shall be liable in the same manner and to the same

extent as a private individual under like circumstances,’” the Court must apply the choice of law

rules of the forum state. Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 841 (D.C. Cir. 2009)

(“Oveissi I”) (quoting 28 U.S.C. § 1606). The Court will, accordingly, apply District of

Columbia choice of law principles.

The District of Columbia uses a choice-of-law rule that “blend[s] a ‘governmental

interest analysis’ with a ‘most significant relationship’ test.” Id. at 842 (quoting Hercules & Co.,

Ltd. v. Shama Rest. Corp., 566 A.2d 31, 40–41 & n.18 (D.C. 1989)). Under the governmental

interest analysis, the Court “must evaluate the governmental policies underlying the applicable

laws and determine which jurisdiction’s policy would be most advanced by having its law

applied to the facts of the case under review.” Id. (quoting Hercules & Co, 566 A.2d at 41).

And, under the most significant relationship test, the Court must consider the following four

factors taken from the Restatement (Second) of Conflict of Laws: (1) “the place where the injury

occurred”; (2) “the place where the conduct causing the injury occurred”; (3) “the domicil[e],

residence, nationality, place of incorporation and place of business of the parties”; and (4) “the

place where the relationship, if any, between the parties is centered.” Id. (quoting Restatement

(Second) of Conflict of Laws § 145(2) (1971)). Section 145 of the Restatement “also references

the factors in Section 6 of the Restatement, which include the needs of the interstate and the

international systems, the relevant policies of the forum, the relevant policies of other interested

states, certainty, predictability and uniformity of result, and ease in the determination and

69 application of the law to be applied.” Dammarell v. Islamic Republic of Iran, 01-2224, 2005 WL

756090, at *18 (D.D.C. Mar. 29, 2005) (citing Restatement (Second) of Conflict of Laws § 145

(1971)); see also Owens v. Republic of Sudan, 826 F. Supp. 2d 128, 154 (D.D.C. 2011) (“Owens

II”), aff’d in part and vacated in part on other grounds, 864 F.3d. 751 (D.C. Cir. 2017).

Here, there are two potential sources of law that might govern the Israeli-national

plaintiffs’ claims: the law of the forum state (the District of Columbia) and the law of the

plaintiffs’ domicile and the place of the attacks at issue (Israel). Plaintiffs contend that Israeli

law should govern the Israeli plaintiffs’ claims, and the Court agrees.

This case does not raise a conflict between various domestic jurisdictions; rather, the

Court must decide whether to apply D.C. law or the law of a foreign jurisdiction, Israel. In

Dammarell v. Islamic Republic of Iran, the district court applied the law of the U.S.-plaintiffs’

state of domicile—rather than that of Lebanon—to a suit brought by American victims of the

1983 bombing of the United States Embassy in Beirut. 2005 WL 756090 at *20. As the district

court explained, “the injuries in [that] case [were] the result of a state-sponsored terrorist attack

on a United States embassy and diplomatic personnel[,] [and the] United States has a unique

interest in its domestic law . . . determining damages in a suit involving such an attack.” Id.; see

also Oveissi I, 573 F.3d at 843 (“We have no doubt that the United States has a strong interest in

applying its domestic law to terrorist attacks on its nationals, especially when, as was the case in

Dammarell, the attacks are ‘by reason of their nationality.’”). That principle, moreover, is

supported by the Restatement (Third) of Foreign Relations Law, which recognizes a country’s

“jurisdiction to prescribe law with respect to ‘certain conduct outside its territory by persons not

its national that is directed against the security of the state or against a limited class of other

interests,’” and notes that “this principle is ‘increasingly accepted as applied to terrorist . . .

70 attacks on a state’s nationals by reason of their nationality . . . .” Id. (quoting Restatement

(Third) of Foreign Relations Law § 402(3) & 402 cmt. g) (emphasis in Oveissi I) (citation to

Dammarell omitted).

Although agreeing with this summary of the governing law, the D.C. Circuit declined to

apply domestic U.S. law in Oveissi I. There, in contrast to Dammarell, the victim of the

assassination was not a U.S. national, there was no evidence that the assailants knew that the

victim’s grandchild—the plaintiff in Oveissi I—was a U.S. national, and there was no evidence

that “the United States or its nationals were in any other way the object of the attack.” Id. at 374.

The evidence, to the contrary, showed that the assassination occurred in France, and was

intended “to deter French intervention in Lebanon.” Id. (emphasis omitted). In short, “if any

country was the object of the attack, it was France.” Id. The D.C. Circuit, therefore, concluded

that French law should govern. Id.

Although not identical, the present case is closer to Oveissi I than it is to Dammarell. All

seven attacks occurred in Israel. And, as in Oveissi I, there is no evidence that “the United States

or its nationals were in any . . . way the object” of any of the attacks, although the direct victims

were all U.S. nationals at the time of the attacks. Id. (emphasis added). This case is, moreover,

on all fours with Fraenkel v. Islamic Republic of Iran, 248 F. Supp. 3d 21 (D.D.C. 2017), rev’d

in part on other grounds, 892 F.3d 348 (D.C. Cir. 2018), where the district court applied the

principles discussed above and held that Israeli law, rather than D.C. law, was appropriate. Id. at

39. There, the court concluded that “Israel ha[d] the greatest interest in having its laws apply and

the most significant relationship to the events” because “the injury occurred in Israel; the conduct

causing the injury occurred in Israel, the Palestinian territories, [and] Iran . . . ; [the plaintiff] is

and always has been an Israeli citizen; and there is no legal relationship between [the plaintiff]

71 and any of the defendants or Hamas.” Id. The same considerations are present here with respect

to the non-U.S.-national/Israeli plaintiffs. Not only did all the relevant events occur in Israel and

these particular plaintiffs are Israeli citizens, the direct victims on which their claims are

predicated were all U.S. citizens who permanently resided in Israel, including some with dual

U.S.-Israeli citizenship. See Dkt. 72 at 1 (Menachem Rivkin Decl. ¶ 1) (U.S. citizen residing in

Israel); Dkt. 52 at 1 (Yehudah Glick Decl. ¶ 1) (indicating that he was a U.S. citizen at the time

of the attack); Dkt. 66 at 1 (Naftali Moses Decl. ¶¶ 1–4) (indicating that Avraham Moses resided

in Israel at the time of the attack that killed him); Dkt. 76 at 1 (Naftali Shitrit Decl. ¶ 1) (dual

U.S.-Israeli citizen residing in Israel); Dkt. 39 at 1 (Shmuel Brauner Decl. ¶¶ 1, 6) (U.S. citizen

born in Israel and residing there at the time of the attack). The Court, accordingly, concludes

that Israeli law should govern.

1. Liability

Having concluded that Israeli law applies, the Court will turn to whether the Israeli

plaintiffs have adequately alleged a claim for (1) negligence or (2) aiding and abetting. Dkt. 1 at

31 (Compl. ¶¶ 132–151). When applying foreign law, “the [C]ourt may consider any relevant

material or source, including testimony, whether or not submitted by a party or admissible under

the Federal Rules of Evidence.” Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 44

(D.D.C. 2016) (quoting Fed. R. Civ. P. 44.1). Although “the [C]ourt is not limited by material

presented by the parties,” and “may engage in its own research,” it is also “free to insist on a

complete presentation by counsel.” Fed. R. Civ. P. 44.1 advisory committee’s note to 1966

amendment. In support of the Israeli plaintiffs’ entitlement to relief under Israeli law, Plaintiffs

have submitted the expert declaration of Dr. Boaz Schnoor, who holds L.L.D., L.L.M, and

L.L.B. degrees from Hebrew University and has “served as a consulting expert witness on issues

72 related to Israeli tort law and liability for terrorist attacks in a number of cases.” Dkt. 34 at 2

(Schnoor Expert Rpt. ¶¶ 3–4).

In Dr. Schnoor’s expert opinion, “Defendants would be held liable in tort to the Plaintiffs

under the applicable provisions of [Israel’s] Civil Wrongs Ordinance [New Version] 5728-1968

(‘CWO’).” Dkt. 34 at 3 (Schnoor Decl. ¶ 8). Dr. Schnoor’s declaration asserts, in particular, that

Iran and Syria are directly liable to Plaintiffs under the doctrine of negligence for “[s]upplying

aid, support and assistance to terrorist organizations” because “a reasonable defendant would

foresee that such actions might result in terrorist attacks,” causing harm to direct victims and

their family members. Id. (Schnoor Decl. ¶ 9c). According to Dr. Schor, “[t]he tort of

negligence provided for in the CWO consists of four elements: duty of care; breach of a duty of

care[;] . . . proximate cause (sometimes divided to cause-in-fact and legal causation); and harm.”

Id. at 5 (Schnoor Decl. ¶ 15) (citations omitted); see also CWO § 35, 2 LSI (New Version) 14–

15 (1972). And “[i]t is noteworthy . . . that Israeli Law holds that the tort of negligence

encompasses not only negligent acts, but also intentional acts, as long as they are unreasonable

acts that caused foreseeable harm.” Id. at 4 (Schnoor Decl. ¶ 13). Applying the above standard

to the Israeli plaintiffs’ claims, the Court concludes that eleven of the thirteen Israeli plaintiffs

have adequately alleged a claim for negligence against Iran and Syria.

First, duty of care under Israeli law is “sometimes divided between the conceptual duty

of care and concrete duty of care.” Id. at 5 (Schnoor Decl. ¶ 16). “According to Israeli tort

law[,]a duty of care (both conceptual and concrete) is presumed to exist whenever a reasonable

person could have foreseen that the conduct at issue could cause harm of the type alleged.” Id. at

6 (Schnoor Decl. ¶ 17); see also CWO, § 36, 2 LSI (New Version) 15 (1972) (“[E]very person

owes a duty to all persons whom . . . a reasonable person ought in the circumstances to have

73 contemplated as likely in the usual course of things to be affected by an act, or failure to do an

act.”). The Court finds that the Israeli plaintiffs have demonstrated that Defendants were under a

duty of care to Bracha Rivkin, Yehudah Glick, his foster children R.T. and T.T., Avraham

Moses’s step-siblings, and Shmuel Braunder’s children because, as noted above, “their injuries

were foreseeable consequences” of Iran and Syria’s provision of material support to Hamas and

PIJ. see Fraenkel, 248 F. Supp. 3d at 39.

Second, “[a] breach of the duty of care occurs when a party with a duty fails to take

‘reasonable precautionary measures.’” Id. (citation omitted). Far from taking precautionary

measures, Iran provided Hamas and PIJ with financing, weapons and training; Syria provided

them with a safe haven from which to procure those tools and plan attacks; both actively

encouraged terrorist operatives to carry out attacks against the civilian population of Israel. The

Court, accordingly, concludes that Defendants breached their duty of care to the Israeli plaintiffs.

Third, the “[c]ause in fact is generally determined in Israel according to the ‘but for’

test.” Dkt. 34 at 7 (Schnoor Decl. ¶ 21) (citations omitted). And legal causation is met “[i]f a

reasonable person could have foreseen that a harm of the kind that happened might happen.” Id.

(Schnoor Decl. ¶ 22). Both types of causation are satisfied here. As noted above, Plaintiffs have

demonstrated that, but-for the material support of Iran, Hamas and PIJ would not have had the

economic resources or the training to carry out the attacks at issue. So, too, with Syria; the safe

harbor provided by Syria was necessary for both groups to develop the operational capacity to

carry out these attacks. And, it was certainly foreseeable that, by providing Hamas and PIJ

material support and encouraging them to carry out terrorist attacks against civilians in Israel,

Iran would cause serious injury or death to civilians in Israel and inflict mental and emotional

anguish on their families.

74 Finally, the element of harm is defined by the CWO as “loss of life, or loss of, or

detriment to, any property, comfort, bodily welfare, reputation, or other similar loss or

detriment.” Dkt. 34 at 7 (Schnoor Decl. ¶ 23). As noted above, the Israeli plaintiffs have

submitted psychiatric evaluations attesting to the mental and emotional anguish they suffered as

a result of their loved ones’ injuries. See Dkt. 35 (Strous Decl.). The Court, accordingly, finds

that they have adequately demonstrated harm.

The Court will, however, deny the motion for default judgment as to Y.A.L.B. and

M.H.B., the children of Plaintiff Schmuel Brauner, who were born after the August 19, 2011

rocket attack that injured Schmuel. With respect to these two plaintiffs, the Court is not

satisfied—at least on the existing record—that Defendants owed these plaintiffs a duty of care at

the time of the attack. Courts in this district have, for example, held that after-born children

cannot recover for solatium damages in similar cases brought under § 1605A of the FSIA. See,

e.g., Davis v. Islamic Republic of Iran, 882 F. Supp. 2d 7, 14–15 (D.D.C. 2012). Dr. Schnoor’s

declaration does not address this wrinkle, nor does he explain whether after-born children are

owed a duty of care under Israeli negligence law. Because it is Plaintiffs’ burden to establish

their right to relief on a motion for default judgment, the Court concludes that Plaintiffs have

failed to present sufficient evidence that Y.A.L.B. and M.H.B. are entitled to solatium damages.

The Court will, accordingly, grant the motion for entry of a default judgment with respect

to the eleven of the thirteen Israeli plaintiffs. With respect to M.H.B and Y.A.L.B., the Court

will deny the motion for default judgment without prejudice. Plaintiffs may renew their motion

after supplementing Dr. Schnoor’s declaration with additional expert testimony on Israeli law to

address the Court’s concerns.

75 CONCLUSION

For the foregoing reasons, it is hereby ORDERED that the motion for default judgment,

Dkt. 91, with respect to all a claims by M.H.B. and Y.A.L.B., the minor children of Schmuel and

Nechama Brauner, and all claims by Daniella, Noa, and Dana Parnas, and A.P., is DENIED

without prejudice. It is further ORDERED that the motion for default judgment with respect to

the remaining fifty-one Plaintiffs is GRANTED with respect to their claims against Syria, Iran,

and MOIS. The Court will APPOINT a special master to hear their damages claims and to

report to the Court recommending the appropriate award as to those plaintiffs. A separate order

appointing a special master and setting the terms of that appointment will follow.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: May 31, 2020