The opinion of the court was delivered by: FRANKEL
On September 6, 1970, the plaintiff, an international air carrier, was operating a Boeing 747 ("jumbo jet") airplane on its scheduled Flight No. 093 from Brussels, Belgium, to New York City, with a stop in Amsterdam, Holland. As the airplane proceeded from Amsterdam toward London, two of its passengers produced hand guns and grenades, took forcible command of the crew and the passengers, and ordered the pilot to proceed to Beirut, Lebanon. The hijackers, though not themselves Arabs, were working with and for the Palestinian organization called the Popular Front for the Liberation of Palestine (PFLP). In collaboration with other PFLP people who met them in Beirut, they laced the aircraft with explosives during and after a stop in the Lebanese capital. Then they caused the airplane to be flown to Cairo, Egypt, lighting fuses just before landing to ignite the explosives. The large complement of passengers and crew were thus given scant minutes to disembark as the plane landed at Cairo and flee (at a cost in terror and some substantial injuries) before the craft exploded, burned, and was totally destroyed.
The plaintiff carried a more or less seamless mosaic of "all risk" and "war risk" insurance policies written (at varying times) by an array of private insurers and the United States Government. Pieced together the policies covered all, or, at worst for plaintiff, nearly all, of the loss. The central problem, too simply put, is which piece or pieces of coverage apply -- or, with slightly greater accuracy but still over-simply, whether the loss is among those excluded from "all risks" and included among "war risks." All of the insurers have disclaimed liability. The plaintiff has sued them all, invoking our undisputed diversity jurisdiction as against the private carriers and 49 U.S.C. § 1540 against the Government.
We have been led by the nature of the insurance questions to touch in the trial upon large topics of history, politics, and human sorrow in the Middle East. The roster of witnesses has been impressive and cosmopolitan, including, for example, a former Judge and Minister of the Government of Jordan, a commanding general of the Palestine Liberation Army, articulate Middle East correspondents, Israeli intelligence and security officers, hijacked pilots, crew, and passengers, and a guerilla warrior-scholar, along with insurance underwriters, ticket agents, and other people at least equally important for us, if possibly less glamorous. We have learned probably a good deal more than was necessary for this insurance case about the origins and course of contemporary Arab-Israeli struggles. At the same time, we have learned at most a minuscule fraction of what would need to be known before beginning to make broad, objective, and responsible judgments worthy of note beyond the confines of this lawsuit. So it bears early emphasis and recognition throughout that the findings now to be announced have significance only as they affect plaintiff's insurance claims. They are not meant to be -- the court is neither competent nor authorized to make -- official or unofficial judgments concerning foreign policy, the virtues or vices of governments, movements, and individuals embattled in the Middle East, or the "justice" or wisdom of claims for which so many have been suffering and fighting and dying.
These preliminary observations would be superfluous if it were not for some incidental facts in and around the litigation. For one thing, all involved have been made aware that people called as witnesses, as well as others allied in political interest with them, have seen fit to hope or believe that their causes might be advanced or obstructed by an American court's reasons for saying one group of insurers rather than another must pay for the destroyed airplane. In the charged circumstances this belief is understandable. But it is, or should be, entirely mistaken. In a more arguable and legally apposite vein, but also erroneously in the court's view, one group of defendants has pressed upon us that our subject is governed by a "consistent policy" of the American State Department and that treatment of the loss as falling within certain of the war risks "cannot help but be construed as granting some measure of legitimacy to * * * acts of terrorism in direct contravention of the foreign policy of the United States." The court perceives no such constraint and no such danger. The "United States" is here only coincidentally, as an insurer. The State Department, also coincidentally in this aspect, has been here as a source of documents and information. We have had no official intimation of how this case might be affected by American foreign-policy concerns and, even more clearly, no suggestion that what we say or do could imaginably graze the course of the nation's foreign affairs.
It is stressed again, therefore, that nothing said herein is intended or suited (or should be read) to affect in the slightest the momentous subjects of foreign policy and international judgment that are outside our province. Today's opinion decides nothing of right and wrong among Palestinians, Syrians, Israelis, Egyptians, Iraquis, Saudi Arabians, Lebanese, Libyans, or, indeed, Americans and Russians, as they have been encountering each other in the events of the Middle East.
The court has made only the relatively minute determination that the all risk insurers are liable for plaintiff's entire loss. We now proceed to state the findings and conclusions deemed to require that result.
The insurers and insurance policies
The defendants are three groups of insurers:
(1) The all risk insurers, named in the first three claims of the amended complaint, issued identical policies affording coverage in the year beginning November 12, 1969, for the full agreed value of the aircraft, $24,288,759. Defendants named in the first claim are American companies which covered one third of the total. The second claim defendants are Lloyds underwriters, plus other British and foreign companies, collectively covering one sixth of the insured value. The defendant in the third claim covered one half.
As its familiar shorthand label conveys, the all risk insurance covered "all physical loss of or damage to the aircraft," except as limited by specified exclusions. The major subject of this lawsuit has been whether any of these exclusions defeats recovery from the all risk defendants. The pertinent exclusions are these:
"1. capture, seizure, arrest, restraint or detention or the consequences thereof or of any attempt thereat, or any taking of the property insured or damage to or destruction thereof by any Government or governmental authority or agent (whether secret or otherwise) or by any military, naval or usurped power, whether any of the foregoing be done by way of requisition or otherwise and whether in time of peace or war and whether lawful or unlawful (this subdivision 1. shall not apply, however, to any such action by a foreign government or foreign governmental authority following the forceful diversion to a foreign country by any person not in lawful possession or custody of such insured aircraft and who is not an agent or representative, secret or otherwise, of any foreign government or governmental authority);
"2. war, invasion, civil war, revolution, rebellion, insurrection or warlike operations, whether there be a declaration of war or not;
"3. strikes, riots, civil commotion."
In July 1970 the all risk coverage afforded by the first and third claim defendants was increased at plaintiff's request. The exclusions in paragraph 3 ("strikes, riots, civil commotion") were deleted by these American insurers, but only up to a limit of $10,062,393 in excess of $14,226,290 on each 747 aircraft. Within this limit the first and third claim defendants each assumed 50% of the additional coverage. This would mean, if the third exclusion were found applicable, that the first and third claim defendants would be liable for $10,062,393, and the fifth claim (war risk) defendants for $14,226,290.
For all risk coverage of its 747 fleet, plaintiff paid premiums totaling $4,571,635 for the period January 1, 1970, to September 21, 1970.
The added coverage of strikes, riots, and civil commotion was given by the first and third claim defendants from July 27, 1970, to November 12, 1970, for a premium of $29,935.
(2) The defendant in the fourth claim is the United States, which, under the aegis of the Federal Aviation Administration pursuant to the Federal Aviation Act, 49 U.S.C. §§ 1531-42, supplied insurance coverage for specified risks to the extent of $9,763,709 in excess of $14,226,290.
The government policy covered loss or damage "resulting from the risks" enumerated as follows:
"War, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution or insurrection, military or usurped power or confiscation and/or nationalization or requisition or destruction by any government or public or local authority or by any independent unit or individual engaged in irregular warfare."
This policy also provided:
"Notwithstanding anything contained in the coverage clauses * * *, this insurance does not cover any loss or damage or any legal liability arising out of or caused by or resulting from capture, seizure, arrest, restraint, detainment, preemption, confiscation or requisition by the Government of the United States, or of the country in which the aircraft is owned, or registered, or from arrests, restraints or detainments under Customs regulations or quarantine regulations or similar arrests, restraints or detainments, or any other loss, damage, or legal liability not arising from actual or impending hostilities or sanctions."
In addition, the government coverage excluded
"(any) liability or claim for injury, loss, damage or expense covered under any other policy of insurance, including any guaranty or indemnity agreement, in effect for the benefit of the Insured; the Insured warrants that the Insurer shall be free from any such liability or claim."
The premium paid by plaintiff to the Government was $45,000 for the period January 1, 1970, to September 21, 1970.
(3) The remaining defendants, named in the fifth claim, are Lloyds underwriters and other insurers doing business in the London insurance market, all of whom will be referred to collectively as the war risk insurers.
These defendants issued policies effective for a year from January 1, 1970 -- i.e., almost two months after inception of the all risk policies. Although at the time of inception and before formal issuance of the commercial war risk policy the war risk coverage differed slightly from the all risk exclusions, by the time of the loss in question the war risk coverage was, in identical words, the three paragraphs of all risk exclusions quoted above, but its upper limit was $14,226,290. It was possible, therefore, that a total loss might be excluded from all risk coverage and covered (ignoring insubstantial discrepancies in agreed values) partly by the Government and partly by the war risk insurers -- e.g., if the loss were found to result from "war, invasion, civil war, revolution, rebellion," or other causes covered by the two latter categories of defendants. It is the primary contention of the all risk insurers that this is the result required on the facts of this case.
The war risk insurers received from plaintiff a premium of $190,511 for the period January 1, 1970, to September 21, 1970.
Background: Palestine, Israel, and the Palestinians
Among the conflicts in this litigation have been disputes about whether or how we should canvass the history of struggle centering upon what is now Israel, the present and former population of what was Palestine, and the surrounding Arab States. Broadly stated, the positions have ranged from urging the subject to be almost wholly immaterial to contending that we must turn every stone and expose the files of the Central Intelligence Agency to pinpoint the alignments, relationships, strategies, tactics, and secret information about all these, that would assertedly reveal the true causes of, and hence what insurance should now cover, the loss of plaintiff's airplane. Woven through the debate has been an insistent strand of argument, notably by the war risk insurers, that our compelling allegiances are to Wigmore more than to Clio, that we must be vigilant against casual expansions of the exceptions to the hearsay rule. The court has steered through this well-modulated storm a course of imperfect rigor. We have heard much hearsay, some allowed only on extremely latitudinarian versions of orthodox principles. Leaving aside for the moment questions of materiality and relevance, we have judged that such things as the membership of foreign paramilitary or terrorist groups, and the facts of even small battles or guerilla attacks, though recent rather than ancient,
cannot be reported at all in our courtrooms unless the standard rules of evidence are relaxed. We have made pragmatic judgments in ruling from time to time that dubious or suspect evidence should be taken from all sides, however skeptically, when the practical alternative was to have no evidence of any kind.
If there have been, as there surely have been, some technical solecisms along the way, there appears in the end to have been little or no damage to substantial interests. To a preponderant extent, the historical facts now found to be material are not seriously disputed, whether or not most of them might approach or be matters for judicial notice. The important and difficult questions are not about what happened, but about how to characterize the key events for insurance purposes.
Thus, though it has been duly covered in courtroom testimony and depositions, all of us might have relied upon the library for the essential outlines of the history of modern Israel and the continued strife attending its existence. A United Nations resolution of November 29, 1947, declared that Palestine should emerge from the British mandate as two states -- one Jewish, the other Arab -- with an area around Jerusalem remaining under U.N. control. The leaders of Palestine's Arab population, supported by the neighboring Arab states, denounced the resolution. Large-scale fighting erupted between Arabs and Jews in Palestine, but by May 1948 the Jews had largely won the contest of force within Palestine. The State of Israel was proclaimed on May 14, 1948, and immediately recognized by the United States. On May 15, Arab armies from Egypt, Syria, Trans-Jordan, Iraq and Lebanon invaded. After months of heavy fighting, with the Israelis on the whole victorious, there came a series of cease-fires and a 1949 armistice agreement under which Israel acquired 70% of the former mandate rather than the 50% for which the U.N. resolution had provided. Jordan, as it came to be known, took a strip on the west bank of the Jordan River and embraced its residents as citizens. Egypt occupied, but did not annex, the Gaza Strip adjoining Israel at the southeast corner of the Mediterranean. No Arab country has since made a peace treaty with, or recognized, Israel.
The upheavals of 1948-1949 led to an exodus of some 750,000 Arabs from the territory occupied by Israel. 400,000 went to Jordan, including the west bank area, 100,000 to Lebanon, 80,000 to Syria, and the rest to the Gaza Strip. Huge numbers were housed in refugee camps, where many live, with their descendants, to this day, often in grim conditions despite U.N. and some other assistance. The refugees in the Gaza Strip were barred from entry into Egypt. The other Arab states, except for Jordan, placed employment and other restrictions upon their refugee immigrants. Perhaps more potent than these restrictions in preventing their absorption or assimilation elsewhere was the determined view among many Palestinian Arabs that the partition must continue to be fought and that the State of Israel must be destroyed. Compromises urged by third parties have been rejected by both Arabs and Israelis. Among these was a U.N. proposal in 1948 that the refugees be given the choice of returning to their homes or settling elsewhere with compensation for property left behind. This idea has been regularly reaffirmed in the U.N. but regularly ignored by the contestants. An Israeli offer in 1949 to take back 100,000 of the emigres was spurned by the Arab states as spokesmen for the Palestinians.
In the years since 1948 there have been two major outbreaks of fighting. In 1956 Israel, Great Britain, and France attacked Egypt. Under heavy pressure from the U.N., with the United States and the U.S.S.R. in significant accord, the fighting was ended and the invasions of Egypt, including deep Israeli penetrations of the Sinai, were reversed. A small U.N. Emergency Force was stationed in the Gaza Strip, to be withdrawn eleven years later in obedience to an Egyptian demand. In June 1967 -- after that demand, after Egypt had declared the closing of the Straits of Tiran, and after other demonstrations of hostile intent -- a short but fierce war erupted. In six days of fighting Israeli forces occupied the Gaza Strip, the West Bank, the Sinai Peninsula, and the Golan Heights of Syria. The ranks of refugees were swollen by another exodus, mainly from the West Bank area. The number of additional refugees is given in the briefs, as in the underlying testimony, as something between 200,000 and 500,000. If the exact number mattered we would be in serious trouble. But it makes no special difference here, however much it signifies elsewhere. Similarly, we need not determine the exact number still in refugee camps, said to be about 600,000, or the total properly to be considered refugees, given as being up to about 1,425,000. It is clear that the number -- men, women, and children extending by now to two and three generations -- is appallingly large. It is also clear that the number of those actually seeking to carry on the violent struggle, in Israel or elsewhere, is, as might be expected, a minute proportion of that total.
Arab States, The Palestine Liberation Organization, and the Fedayeen
To a considerable degree, the continued conflict of the Palestinian Arabs against Israel -- in the U.N., in diplomacy, in propaganda, and on the battlefield -- has been carried on by the Arab states as such. The degree and nature of engagement by these states has varied among them at any given time and from time to time. Struggles for power within the Arab world and within Arab nations have affected the nature of their commitments to the Palestinian cause. Dealings with refugee groups and their leaders have been variously affected by the positions of the Arab governments relating to issues like cease-fires, the possibility of negotiating with Israel, and relations with such third powers as the United States, the U.S.S.R., Great Britain, and others.
As for the Palestinians themselves, organized leadership from within their ranks remained weak and insignificant until at least 1964. In that year representatives of various Palestinian groups met in Jerusalem and formed the Palestine Liberation Organization (PLO), which received recognition as an entity from the member states of the Arab League and was accepted as a non-voting member of the League. The PLO charter provided for a National Council, an Executive Committee, and an army, the Palestine Liberation Army (PLA). PLA units were deployed in various Arab countries, and its troops, estimated to number 12,000 to 15,000, fought against the Israelis in the Gaza Strip during the six-day war of 1967.
Beginning in 1949 a number of semi-secret Palestinian groups were organized, mostly by young men, all dedicated in their ways to Arab reconquest of Palestine. From these evolved the bulk of the 10 or more organizations that came to be known collectively as the "fedayeen."
Among the earliest of those that survived was Al Fatah, led by Yasser Arafat, which became the largest and most powerful of the groups. Arafat and the Fatah leadership came to believe that the Palestinians could not count on the unwavering support of Arab governments, but needed to develop forces capable on their own of conducting guerilla warfare. Beginning early in 1965, and up to the 1967 war, Al Fatah claimed 95 to 100 "operations" in Israel in the form of small incursions, aimed at sabotage (mining roads, attempts to blow up water pipes, etc.,) or such things as the occasional throwing of hand grenades at military vehicles and other attacks upon military targets. These operations from time to time evoked Israeli attacks in reprisal against targets in Jordan, Syria, and Lebanon.
Fatah membership embraced a considerable ideological spectrum, with unanimity only upon the goal of obliterating Israel as a state. United in this, Fatah undertook to minimize other ideological matters and to profess (and attempt largely to follow) a policy of noninterference in the internal affairs of Arab States.
Apart from Al Fatah, there has been a considerable number of shifting, splitting, combining, and resplintering fedayeen groups, with considerable competition among them for positions of leadership and ideological dominance. The PFLP, of primary interest in this case, was formed in October or November of 1967 from a coalition of four organizations dating back as far as the early 1950's. Said to have been second in size to Al Fatah, the PFLP vied for this rank with a group called Sa'iqa. Whichever in fact merited this standing, neither was more than a very distant second. While figures are widely variable and scarcely reliable from the record of this case, it is a best estimate that Al Fatah numbered some 4,000-5,000 in the times that concern us while the PFLP and Sa'iqa had about 600 to 1200 each. The PFLP total was comprised of 150 or so as the "permanent" core with a shifting, rapidly changing enrollment for the rest.
The PFLP was in important respects unique among the fedayeen groups. Interestingly, if not most importantly, its membership contained a large proportion of Christians, and its chief leader, Dr. George Habash, was a Christian. The central quality of the PFLP was its militant, Marxist-Leninist-Maoist ideology. Concentrating upon its revolutionary doctrines as the main concerns, it tended to view traditional Arab goals as somewhat secondary, if by no means inconsequential. Unlike Fatah's insistence upon "national liberation" as the essence of the conflict, the PFLP viewed the battle against Israel as part of a far broader revolution to be carried on in the Arab world. Indeed, as reflected in its slogan, "the road to Tel Aviv lies through Amman and Beirut," the PFLP believed that as a prerequisite to the confrontation with Israel, "reactionary" Arab regimes must first be overthrown. And this in turn was only part of the "main" or "real enemy," which "happens to be world imperialism, colonialism, universal capitalism, and world monopolies."
Pursuing such beliefs and objectives, the PFLP tended to follow a unique and independent course of its own, often professing unity, but often avowing overt conflict with the policies and views of other fedayeen organizations. Among the "reactionary" regimes it numbered as enemies were most of the Arab governments. It found allies and support among non-Arab terrorist groups, rarely, if ever, obtaining money from Arab states, but deriving main support from China and North Korea. It displayed on the whole an attitude of distrust and hostility toward existing Arab regimes, deeming them bastions of reaction that would support Palestinians only when narrow national interests were furthered (or at most not impaired) by such support.
The contrast between Fatah and most other fedayeen groups on the one hand, and the PFLP (along with an offshoot, PDFLP -- "Popular Democratic Front for the Liberation of Palestine") on the other, was vivid during events in Jordan in the summer of 1970 which have been explored at some length in this case. In that summer, when American initiatives produced Israeli-Egyptian and Israeli-Jordanian cease-fires, and thus threatened to soften the line of unyielding determination to destroy Israel, substantially all fedayeen groups fought the movement toward accommodation. At the same time Al Fatah and the bulk of the others maintained essentially their professed policy of noninterference with Arab governments. The PFLP and the PDFLP called, however, for revolutionary ouster of Jordan's Government. More clearly reflecting the division, the PFLP assailed the PLO and Al Fatah as petty bourgeois groups, essentially enemies of primary PFLP objectives.
For some time before the summer of 1970, the main concentrations of fedayeen were in Lebanon and Jordan. Again, the available numbers are far from precise. Weighing the various estimates in the record, however, it appears that there were, adding all the various organizations together, approximately 12,000-15,000 fedayeen in Jordan and substantially fewer in Lebanon. The PFLP appears to have numbered about 400 to 800 in Jordan and 200 to 400 in Lebanon.
The fortunes of the fedayeen, and of the divergent groups among them, ran a checkered course. To concentrate mainly upon Jordan, which has been the main setting of evidence adduced in this case, the government of that country was never wholly comfortable about its fedayeen guests or their activities. In the months immediately after the 1967 war, fedayeen forays into Israeli territory were of minor significance in numbers and military impact, but they led to retaliatory attacks upon Jordanian settlements and installations. The government of King Hussein reacted by seeking -- through combinations of persuasion, threats, entreaty, and physical obstruction -- to discourage fedayeen raids across the Israel-Jordan border. In March of 1968 a battle with Israeli troops was fought by forces of the Jordanian army combined with fedayeen members. The engagement, viewed as a notable success in Jordan, enhanced fedayeen prestige, rendering temporarily less feasible and desirable tactics of opposition to the fedayeen by the Jordanian Government.
In July of 1968, the fedayeen organizations became members of -- and soon, to a considerable degree, came to control -- the PLO. Yasser Arafat became, first, chairman of the Executive Committee and, in February 1969, chairman of the PLO. The dominant position of Fatah was reflected not only in Arafat's top position but in its bloc of votes in PLO's highest authority, the Palestine National Council. Thus, in the Seventh National Council session at Cairo held May 30-June 4, 1970, Fatah held 33 of the 112 seats. Other fedayeen groups were allotted substantially smaller numbers of seats -- viz., 15 for Sa'iqa, 8 each for the PDFLP and the PFLP, and declining allotments to others. Illustrating its characteristic posture of basic independence and revolutionist rigor, the PFLP sent only a single delegate in an ostensible display of reserved and limited solidarity.
That delegate, likewise in the accustomed style of the PFLP, proceeded to distribute large amounts of propaganda materials, hold press conferences, and generally achieve a disproportionate degree of visibility and audibility.
In the years from 1968 through 1970, while they comprised a weighty portion of the PLO, the fedayeen groups continued as a shifting, sometimes competing, often not clearly distinguishable welter of organizations. Much of the evidence before the court, especially as developed and shaped on behalf of the all risk insurers, has dealt with the "fedayeen" as if they were a single or unitary group. To a considerable degree it has not seemed possible to be more refined and discriminating. Moreover, to present adequately the picture on which the all risk insurers rely, the court will follow here to some extent the practice of describing generally "fedayeen" activities and impacts. In the final analysis, however, the PFLP's modest size, its ideological separateness, its minority position, and, in vital respects, its hostility toward all or most of the other members of the fedayeen movement become matters of moment for the decision herein.
With that important caveat, we resume our sketch of fedayeen history, striving to keep it within the narrowest dimensions reasonably possible for our purposes. Omitting comparable, but not centrally material developments in Lebanon, we recall that in the years 1969 and 1970 mounting tensions developed in Jordan, and more generally in the Arab world, as a result of the fedayeen presence and pressures. The fedayeen, often wearing uniforms in the style of combat and camouflaged fatigues, and commonly carrying small arms, were visible in numbers in the cities of Jordan. In 1970 they came increasingly to assume control over administration and discipline within the refugee camps. With the not necessarily enthusiastic acquiescence of the Jordanian Government, fedayeen vehicles bore their own license plate identifications. Camps for military training, particularly for commando-type operations, were run and exclusively controlled by fedayeen organizations.
Moving toward the summer of 1970, particular and severe tensions developed between the fedayeen and Jordan's government around their evident differences over possible dealings with Israel. The fedayeen opposed bitterly restrictions upon their efforts to conduct guerilla-style operations in Israel.
They wished to see continued and enhanced the pattern of armed encounters, by air and on land, between armed units of Israel on one side and those of Egypt, Syria, and Jordan on the other. They sought to prevent, and then violently denounced, the cease-fire arrangements, largely credited to the efforts of Secretary of State Rogers, executed by both Egypt and Jordan with Israel, and effective on August 8, 1970.
In the spring and summer of 1970 there were armed clashes between fedayeen and Jordanian security and army forces.
Some fedayeen were taken as prisoners. In June 1970 portions of the Jordanian capital, Amman, were "occupied" by fedayeen, who demanded, inter alia, changes in the Jordanian cabinet. Members of the PFLP seized two major hotels in Amman and held the occupants as hostages until after the King acceded to some of the fedayeen demands. While the June outbreak ended with an agreement, that did not last long. As the work of Secretary Rogers approached and achieved the cease-fires, the unrest resumed, and there was more gunfighting, but not on the June scale until after September 1970. The fedayeen established armed enclaves within Amman, in the refugee camps, and elsewhere. Demonstrations and literature featured denunciations of King Hussein as a traitor. At least one armed attempt on his life in early September was attributed to the PDFLP.
There prevailed, in sum, a condition of considerable unrest, commotion, and danger within Jordan. Fear and uncertainty ran high. Schools and businesses opened and shut sporadically as violence erupted and rumors flew. Fedayeen groups set up road blocks on city streets and highways, competing with the police for control.
The questions of whether or how to suppress or regulate the fedayeen had elements of difficulty and delicacy for King Hussein considerably graver than those that would have been generated by the fedayeen considered alone. Divisions among the Arab governments were serious factors. The militant stands of the fedayeen -- against cease-fires with Israel and, more broadly, against the efforts of American "imperialism" -- were strongly supported by such countries as Syria and Iraq. An armed showdown with the fedayeen could mean, as it did in the event, intervention by forces of the Syrian and Iraqi armies. What Russia might do and how the United States might react were among the welter of staggering questions without clear answers.
At any rate, the Government of Jordan concluded in September of 1970 that the fedayeen must be forcibly suppressed. On September 17, the army attacked in Amman and elsewhere. After international maneuverings beyond our concern and depth, Syrian and Iraqi invaders were repelled or withdrew. With large numbers of casualties among both the fedayeen and the army forces, and widespread destruction of property during 10 days of heavy fighting, King Hussein re-established firm control of his state. Under the watchful attendance and pressures of other Arab governments, a cease-fire was arranged with the fedayeen. Like others, this arrangement was only intermittently respected. Armed outbreaks recurred sporadically, but the power of the fedayeen in Jordan had been crushed and they were driven out of the country by the following summer.
In all of the foregoing fedayeen history in Jordan, our record reveals the roles of the PFLP as relatively subordinate, separate, often tangential, and concentrated primarily upon the organization's own advancement and unique objectives rather than any general program of "fedayeen" efforts viewed as a unified or coherent whole. The PFLP membership was small. Its tactics of propaganda and terror were often dramatic and may have had effects greater than groups of comparably small size seemed able to achieve. Nevertheless, the PFLP largely went its own way and accounted for results minor in the total picture. An important reflection of the organization's independence and isolation, significant for the instant case, is the fact that hijackings and other so-called "external operations" (outside Israel and the area around it) were unique tactics of PFLP terrorism, almost uniformly opposed, and certainly not participated in, by the other, far more numerous fedayeen groups. Such external operations (totalling not more than about 10 before September 6, 1970) included, on PFLP's proclamation of its achievements, hijackings of Israeli (El Al) airplanes from European airports, the planting of bombs in London ("Zionist") stores and offices, and attacks upon Israeli embassies in Europe. The paramount goals of these ventures, as understood and expressed by PFLP leadership, were effects upon the Palestinians themselves rather than upon others. However horrible for individual victims, the violent assaults were recognized as trivial in terms of conceivable pressures they might exert upon "imperialist" enemies like Britain and the United States. George Habash saw the struggle as a long one -- "twenty more years (of) * * * sacrifices and bloodshed" -- viewing in the perspective of anarchists and other violent revolutionists the activities by which the PFLP was "inflicting slight damage to the enemy here * * * and * * * there * * *." While PFLP leaders talked of "dramatizing" the Palestinian cause to Americans, the British, and others, they recognized that the reactions would tend to be hostile rather than favorable. On the other hand, with morale among Palestinians exceedingly low in the years after 1967, and especially so during the developments of 1970, terrorist acts like those of the PFLP were intended to instill pride, bolster spirits, generally to inspire and be applauded by the fedayeen and the Palestinian masses.
Other Hijackings of September 6 and 9, 1970
The hijacking that concerns us was an improvised alternative after unforeseen events had blocked the planned participation of its two perpetrators in the attempted taking of an El Al airplane. The frustrated plan appears in turn to have been part of the PFLP's efforts to achieve a "sensational" display of daring and horror through the capture of several large airplanes filled with civilian passengers on a single day.
The record before us seems to show that hijacking of airplanes was a device specially cherished by the PFLP during the times in question. The organization employed for these actions a few people who had acquired some knowledge of jet aircraft structure and functioning.
On or shortly before September 6, 1970, a band of armed PFLP members went to an abandoned airstrip in northeast Jordan which had been known as Dawson's Field during World War II. The area was desolate. The long-abandoned strip was a rudimentary one, not improved by long disuse. There were no airport structures or facilities. But the unprepossessing place was soon to be named the "Airfield of the Revolution" and to become a focus of much attention and publicity, as well as some considerable fear and discomfort, all as substantially planned, entirely on their own and apart from other fedayeen groups, by PFLP leaders.
Shortly after 11:00 A.M. Greenwich Mean Time a Trans-World Airlines (TWA) flight (a Boeing 707) left Frankfurt, bound for New York. Within an hour, two of its passengers produced hand guns and grenades, took command of the airplane, and required it to proceed to and land at the airstrip in Jordan. At 12:30 P.M. a Swissair Douglas DC 8 left Zurich for New York. This airplane was hijacked in similar fashion by a man and a woman and likewise flown to Dawson's Field. At some time before 1:00 P.M. on the same afternoon an El Al flight left Amsterdam. A man and a woman attempted to hijack it when it reached the vicinity of London. They met with resistance, however; the man was killed, the woman captured, and their attempt was foiled. These unsuccessful hijackers, like those who had taken the TWA and Swissair planes, carried a flight plan to Amman and an aviation chart. They also carried weapons like those used by the others.
On September 9, 1970, a BOAC VC-10 was hijacked by two men during a flight from Bahrain to Beirut. The methods and incidents were like those of the September 6 episodes. This airplane was also taken to Dawson's Field, where the two earlier planes were still sitting, with most of their passengers still aboard, held by armed PFLP members, in turn surrounded, at a distance, by Jordanian troops.
As has been indicated, the course and details of the hijackings to Dawson's Field followed a pattern. Apart from the hijacking techniques and procedures, the hijackers dealt similarly with passengers and crew. Passports were taken. Israelis and Jews of other nationalities were singled out for special treatment. The passengers, during the flight to Jordan and on the ground thereafter, were told of, and were lectured upon, the Palestinian cause, its merits and its enemies.
With some of the passengers released during the course of the sojourn while others remained there throughout, the hijacked airplanes stayed on the airstrip until September 12. The captors negotiated during that time to exchange airplanes and passengers for ransom money and the release of prisoners held by several countries, including Israel. On September 12, the negotiations having failed, and with the Jordanian authorities pressuring the captors, the passengers were removed and the airplanes were destroyed. The remaining passengers were taken to Amman where many of them were to huddle in improvised prisons, suffering fear and severe physical privations, while the bombs and gunfire of the battle between Jordan's army and the fedayeen exploded around them.
The PFLP was isolated and condemned among the fedayeen for the hijackings. The PLO castigated the hijacking "venture" as a misguided "gamble with the fate of (the Palestine) revolution * * *." Both Al Fatah and Sa'iqa likewise denounced these terrorist actions as injurious to the general cause of the Palestinians. The PDFLP, though perhaps more strictly leftist-revolutionist than the PFLP, had consistently criticized the latter's external operations as publicity-seeking "acts of individual terrorism," and it joined in condemning the Dawson's Field adventures. The Commanding General of the PLA, as he was later to recount at our trial, went to Dawson's Field to plead in vain for release of the airplanes and passengers, sharing the general Arab view that the hijackings, apart from morality, were counterproductive for the Palestinian cause. The PFLP remained defiant and independent, bearing without strain a temporary suspension from the PLO. Explaining the PFLP position on the hijackings at one of numerous press conferences, a spokesman justified this key "point of difference" with the other fedayeen as an exercise of "the right to have its own activities according to its own convictions."
The hijacking in this case
Two black men (apparently not Arabs), traveling with Senegalese passports bearing the surnames Diop and Gueye, were assigned by the PFLP to participate in the attempted El Al hijacking, described above, which was destined to fail on the afternoon of September 6, 1970. They made reservations for an August 30 flight, later changed to September 6, 1970. When the reservations were first made, however, an El Al security man became suspicious because Diop did not seem "thin-boned and tall" enough to be Senegalese. He reported his doubt to Zeev Goldberg, an Israeli government security officer assigned to El Al. Goldberg in turn reported to the home office as well as to the Dutch police, who were asked to investigate Diop and Gueye. On September 3, the El Al home office directed that the two be barred from the company's aircraft. Goldberg told the police that inquiries were no longer necessary. He never suggested that continued investigation might be desirable because Diop and Gueye had tickets soon to be endorsed over to other airlines. While some of the details are unclear, Goldberg never conveyed timely indications to anyone of his and his colleagues' suspicions. In fact, however, his own suspicions were limited to the point of nonexistence. He regretted the loss of revenue for El Al. And he feared -- understandably at the time, whatever hindsight teaches -- that reports of beliefs and suspicions might lead to suits against El Al.
Obeying orders, El Al's Amsterdam staff told Diop and Gueye on September 4 that the flight they had reserved was full, but that three other airlines had flights to their purported destination, New York, at about the same time. As a further accommodation El Al made reservations for the two on all three flights, including the plaintiff's. And their tickets were marked with "open endorsements," naming no specific endorsee carrier.
Diop and Gueye appear to have reported these developments to their PFLP superiors, and they were either ordered or permitted to board and hijack the Pan American airplane. When a Pan American agent checked with Goldberg, the latter assured him that the only reason for the transfer was that El Al's flight was full. Goldberg himself was, of course, sensitized to hijacking dangers both by profession and by nationality. But he perceived in the setting of time and place that the threat was mainly (or, as he said, "only") to Israeli airplanes. When he observed the apparent indifference of Diop and Gueye to what airline they took, he was persuaded that they were acceptable passengers and that his government was needlessly losing money by not carrying them.
At about 2:00 P.M. Amsterdam time H. C. Langenheim, ranking Dutch police officer on duty at Schiphol Airport, received word that there had been an attempt that day to hijack an El Al flight out of Amsterdam. He went to inquire of El Al about this and spoke to Goldberg. Goldberg said, without explaining why, that the two of them should repair to the Pan American office. As they proceeded in that direction, though not at a breakneck pace, Goldberg mentioned Diop and Gueye as suspicious people. When Langenheim asked why, Goldberg told him to ask his own superiors, Major Gerritsen and Mr. Roovers.
Adopting that suggestion, Langenheim separated from Goldberg before they had reached Pan American's office and went back to his own. He learned from Major Gerritsen that there was no information warranting suspicions about Diop and Gueye.
As the events continued to unfold speedily, both Goldberg and Langenheim moved with remarkably contrasting deliberation. Neither was willing to risk embarrassment or worse by what might be precipitate action upon groundless suspicion. Each passed the buck to the other. Goldberg evidently knew very little, and told Langenheim less than he knew. Langenheim, who could have stopped the takeoff if he saw any ground as a reasonable police officer to do so, never came close to taking such action. Nobody in plaintiff's ground staff at Amsterdam had reason to behave differently, or to take more precautions, than he did.
In any event, skipping details of Langenheim's and Goldberg's leisurely progress (which neither was able even at the trial to reconstruct as significant efforts to warn of, or avert, the danger we now know), the record shows that minutes before takeoff, plaintiff's pilot, Captain Priddy, received word on the ground control radio that there were two suspicious men, Diop and Gueye, aboard and that these men had been refused passage by El Al. He had them paged and met them on the lower level with others of the crew accompanying him. He told them courteously that he would have to search them or return the aircraft to the terminal. They consented quietly and were searched. Nothing suspicious was found on their bodies. The purser searched their seats with similar results.
When the captain returned to the cockpit, his first officer and engineer reported that word had been received of an attempted El Al hijacking that morning. With the information then accumulated the Captain and crew discussed the safety of taking off. Captain Priddy, whose wife was aboard as a passenger, told them of the search he had made, and all agreed that there was no reason for concern. It was noted among them, as Zeev Goldberg was later to testify, that Palestinian threats to El Al were not threats to an American airplane headed to New York.
The crew also deemed it reassuring that the two alleged suspects, having been seen and searched, appeared quite clearly not to be Arabs. If it did not supply further comfort, the delicacy of the situation -- with the possibility of what might become a racial incident after the insistence upon a search that was at least debatable, cf. United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir. 1973) -- was also a factor in Captain Priddy's judgment. All concurred in the decision to take off.
It was soon to be learned that Captain Priddy's search had failed to disclose the weapons Diop and Gueye were carrying in crotch holsters. Brief hours before that, a more professional search, by tensely alert El Al personnel, had passed over similarly concealed weapons carried by those who had attempted the hijacking near London. And three days later, after the stunning events of September 6, two BOAC passengers likewise were searched and likewise took weapons from crotch holsters minutes later to commandeer the airplane and take it to Dawson's Field.
To resume the central story of this case: Diop and Gueye, having been ordered in a last-minute shift to take the Pan American aircraft, were not briefed and equipped as fully as the other PFLP hijackers in the other seizures on that day. They had no route maps or certain plans. They assumed, as did their superiors, that the destination would be Dawson's Field. But they assumed as a basis for this that they were taking a 707 rather than the far larger (and costlier) 747. There was no plan prior to their boarding to land in Beirut or thereafter in Cairo. That course, eventually followed, was hastily improvised as the project developed.
At any rate, about 45 minutes out of Amsterdam, Diop and Gueye drew their weapons and took charge. They ordered the airplane turned and flown toward Beirut. Initially tense and nervous, they grew calmer after a while. Speaking on the public address system and to individual passengers, they identified themselves as being with, or working for, the PFLP. They explained their opposition to the American government for its support of Israel and told of the hardships and injustices suffered by exiled Palestinians.
At the hijackers' command, the crew collected all passports. These were examined by Diop and Gueye, who interrogated particularly some of the Jews, military and diplomatic persons, and some others.
It was not PFLP policy to maltreat individual passengers, whether Israelis or others. According to the organization's propaganda, it was "conscious of the fact that the class struggle will develop in Israel. We want to win these passengers to our cause."
In radio conversation with Beirut, the hijackers demanded that PFLP representatives be brought to the airport to speak with them. The demand was met. In ensuing radio exchanges the hijackers reported that they had a 747, not a 707, and that the airplane was too large to land at Amman. After initial Lebanese refusals to allow a landing, threats to destroy the airplane in the air, and a request from the American embassy, the airplane finally was allowed to land at Beirut, but with the understanding that it would refuel there and fly on to another place.
While it circled Beirut, the airplane received a radio message from Israel inviting a landing in that country and offering a fighter escort. Gueye threatened to blow up the airplane if it veered toward Israel. The invitation was not accepted.
At the Beirut airport a total of six to nine other members of the PFLP came aboard, bringing elated greetings and more guns.
Instructions had evidently come to this Beirut group, as well as to Diop and Gueye, from Amman. 20 minutes or so after the landing, a load of explosives, which had been hastily procured from someplace in or near Beirut, was brought onto the airplane. Some of the new arrivals went among the passengers and argued the Palestinian and anti-American cause. This group also helped to prepare and distribute the explosives.
When it came time to leave Beirut, all but one of the PFLP people who had boarded there left the aircraft. The one remaining appeared to be a demolition expert. After the takeoff and en route to Cairo, placing of the explosives was completed. The hijackers told the crew that they would have eight minutes after landing to evacuate the aircraft before it was blown up. The passengers were briefed and organized to cope with that schedule.
During the flight to Cairo one of the hijackers undertook to read a statement to the passengers over the public address system. The effort failed because of a mechanical difficulty, but similar sentiments had been, and continued to be, conveyed in direct talks to ...