its involvement in terrorism generally and the bombing of the World Trade Center in 1993 in particular. Dr. Mylroie described Iraq's covert involvement in acts of terrorism against the United States in the past, including the bombing of the World Trade Center in 1993. Dr. Mylroie testified to at least four events that served as the basis for her conclusion that Iraq played a role in the September 11 tragedy: First, she claimed that Iraq provided and continues to provide support to two of the main perpetrators of the bombing of the World Trade Center in 1993. Specifically, Abdul Rahman Yasin returned to Baghdad after the bombing and Iraq has provided him safe haven ever since. See Tr. 175-76. Also, Ramsey Yusef arrived in the United States on an Iraqi passport in his own name but left on false documentation — a passport of a Pakistani who was living in Kuwait and whom the Kuwaiti government kept a file on at the time that Iraq invaded Kuwait. See Tr. 174. Second, she noted bin Laden's fatwah against the United States, which was motivated by the presence of U.S. forces in Saudi Arabia to fight the Gulf War against Iraq. See Tr. 177. Third, she noted that threats by bin Laden in late 1997 and early 1998 which led up to the bombing of the U.S. embassies (on August 7, 1998) were "in lockstep" with Hussein's threats about ousting the U.N. weapons inspectors, which he eventually did on August 5, 1998. See Tr. 178-79. Dr. Mylroie concluded that "Iraq, I believe, did provide support and resources for the September 11 attacks. I agree with Captain Khodada when he said that . . . it took a state like Iraq to carry out an attack as really sophisticated, massive and deadly as what happened on September 11." See Tr. 182. She further testified, "I think that in many respects, al Qaeda acts as a front for Iraqi intelligence. Al Qaeda provides the ideology, the foot soldiers and the cover . . . [a]nd Iraq provides the direction, the training and the expertise."
See Tr. 182-83.
Director Woolsey reviewed several facts that tended in his view to show Iraq's involvement in acts of terrorism against the United States in general*fn17 and likely in the events of September 11 specifically. First, Director Woolsey described the existence of a highly secure military facility in Iraq where non-Iraqi fundamentalists (e.g., Egyptians and Saudis) are trained in airplane hijacking and other forms of terrorism. Through satellite imagery and the testimony of three Iraqi defectors,*fn18 plaintiffs demonstrated the existence of this facility, called Salman Pak, which has an airplane but no runway. The defectors also stated that these fundamentalists were taught methods of hijacking using utensils or short knives. Plaintiffs contend it is farfetched to believe that Iraqi agents trained fundamentalists in a topsecret facility for any purpose other than to promote terrorism.
Second, Director Woolsey mentioned a meeting that allegedly occurred in Prague in April 2001 between Mohammad Atta, the apparent leader of the hijackings, and a high-level Iraqi intelligence agent. According to James Woolsey, the evidence indicates that this was an "operational meeting" because Atta flew to the Czech Republic and then returned to the United States shortly afterwards.*fn19 The Minister of Interior of the Czech Republic, Stanislav Gross, stated on October 26, 2001:
In this moment we can confirm, that during the next
stay of Muhammad Atta in the Czech republic there was
the contact with the official of the Iraqi
Intelligence, Mr. Al Ani, Ahmed Khalin Ibrahim Samir,
who was on 22nd April 2001 expelled from the Czech
Republic on the basis of activities which were not
compatible with the diplomatic status. As for the
details of their contact, these are under
investigation and I would like to remind you in this
moment that neither I nor anyone else from the Police
of the Czech Republic or intelligence services of the
Czech Republic will not give you any more detailed
information about this contact and his stay and
traveling in the Czech Republic until further
investigation of the facts, which we need to
See Letter from Hynek Kmoníèek, Ambassador of the Czech Republic to the United Nations, to James E. Beasley, Counsel for Plaintiffs 1-2 (Feb. 24, 2003). This purported event,*fn20 if true, certainly suggests a link between Iraq and al Qaeda and the events of September 11. However, as Director Woolsey noted, there remains some dispute about whether this meeting actually occurred.*fn21
Third, Director Woolsey noted that his conclusion was also based on "contacts," which refer to interactions between Hussein/Iraq and bin Laden/al Qaeda that are described in a letter from George Tenet, the Director of Central Intelligence, to Senator Bob Graham on October 7, 2002. Director Tenet's carefully worded letter included in substance the same allegations, but with less detail, that Secretary of State Colin Powell made before the U.N. Security Counsel on Feb. 5, 2003, in his remarks about "the potentially much more sinister nexus between Iraq and the al-Qaida terrorist network." Both Director Tenet and Secretary Powell mentioned "senior level contacts" between Iraq and al Qaeda going back to the early 1990s (although both acknowledged that part of the interactions in the early to mid 1990s pertained to achieving a mutual non-aggression understanding); both mentioned that al Qaeda sought to acquire poison gas and training in its use from Iraq; both mentioned that al Qaeda members have been in Iraq, including Baghdad, after September 2001.*fn22 It is important to note that both Director Tenet's letter and Secretary Powell's remarks contain multiple layers of hearsay.
Finally, plaintiffs also place considerable weight on an article that appeared in a regional Iraqi newspaper in July 2001, two months before the disaster of September 11. This article, a paean to bin Laden, mentions that bin Laden 1) "will try to bomb the Pentagon after he destroys the White House," 2) "is insisting very convincingly that he will strike America on the arm that is already hurting," and 3) "will curse the memory of Frank Sinatra every time he hears his songs." See Exs. 16-18, Naeem Abd Muhalhal, America, An Obsession Called Osama Bin Ladin, AlNasiriya, July 21, 2001 (original, translation, and certificate of accuracy of translation).*fn23 Because, according to Director Woolsey, "all publications in Iraq really appear at the sufferance of and with a full vetting by the Iraqi regime," see Tr. 158, and because of the coincidences and the fact that "[t]here is a certain propensity, I think, on bin Laden's part and on Saddam's part . . . to try to communicate in somewhat vague terms," Director Woolsey concluded that there is a probability of a vague foreknowledge of what was contemplated. See Tr. 159.
Based on these facts, he offered the following opinion:*fn24
I would say that based on all the material about
Salman Pak; based on the statement of Director
Tenet's about the contacts, terrorism and so forth
going back into the past; based on what I still
believe is quite likely to have been this meeting in
2001 between Al — Ani and
Mohammed Atta; and based on even to some extent this
article, . . . I believe it is definitely more likely
than not that some degree of common effort in the
sense of aiding and abetting or conspiracy was
involved here between Iraq and al Qaeda.
See Tr. 160.
I conclude that plaintiffs have shown, albeit barely, "by evidence satisfactory to the court" that Iraq provided material support to bin Laden and al Qaeda. As noted above, a very substantial portion of plaintiffs evidence is classically hearsay (and often multiple hearsay), and without meeting any exceptions is inadmissible for substantive purposes. Thus, the hearsay rule prevents the Court from considering as substantive evidence: the Ambassador of the Czech Republic's letter which repeats Minister Gross's statement about a meeting between Atta and al Ani in Prague, the contacts described in CIA Director Tenet's letter to Sen. Graham, the evidence that Secretary Powell recited in his remarks before the U.N., and the defectors' descriptions about the use of Salman Pak as a camp to train Islamic fundamentalists in terrorist. However, the opinion testimony of the plaintiffs' experts is sufficient to meet plaintiffs' burden that Iraq collaborated in or supported bin Laden/al Qaeda's terrorist acts of September 11. Although these experts provided few actual facts of any material support that Iraq actually provided, their opinions, coupled with their qualifications as experts on this issue, provide a sufficient basis for a reasonable jury to draw inferences which could lead to the conclusion that Iraq provided material support to al Qaeda and that it did so with knowledge and intent to further al Qaeda's criminal acts. In particular, Dr. Mylroie testified about Iraq's covert involvement in the World Trade Center bombing in 1993 and about the proximity of the dates of bin Laden's attack on the U.S. embassies and Hussein's ouster of U.N. weapons inspectors. Juries are invited to draw inferences from facts presented and this constitutes circumstantial evidence and this is what the Court has done here. My decision reflects no more than that the facts and the available inferences meet the plaintiffs' burden of proof.
As indicated above, as non-state actors who have failed to appear in this lawsuit, the "al Qaeda defendants" are liable to the plaintiffs for the deaths of Tim Soulas and George Eric Smith, under 18 U.S.C. § 2333, which provides for treble damages. Iraq is also liable under the Flatow Amendment for economic loss, pain and suffering, and loss of solatium.
A. George Eric Smith
Mr. Smith was 38 years old when he was killed. He was a senior business analyst for SunGard Asset Management, having risen in that company over the span of eleven years from an accounting clerk. He was single and without children. Despite a childhood fraught with adversity, Mr. Smith achieved notable success in business. He rose from an accounting clerk to a senior business analyst in a matter of ten years, and had a promising career ahead of him. His estate claims the following damages: $2.95 million for lost earnings,*fn25 $1,580 for funeral expenses, and $10 million for pain and suffering. His family members also claim solatium damages against Iraq pursuant to the Flatow Amendment. The Court makes the following award of damages to his estate and his heirs:
1. Economic Damages
The estate is entitled to the expenses incurred for his funeral services ($1,580)*fn26 and for his lost earnings ($1,113,280), for a total of $1,114,860. All defendants are jointly and severally liable for this amount.*fn27 Because Mr. Smith's estate is entitled to treble damages against the al Qaeda defendants pursuant to § 2333, the al Qaeda defendants are jointly and severally liable for an additional $2,229,720.
Lost earnings consist of the salary and benefits, less personal maintenance expenses and taxes, that it is projected he would have earned over the course of his work life. Mr. Smith's income for 2001, which is used to calculate his lost earnings, came to $70,000, which is the salary he was apparently in line to receive just before his death.*fn28 Accordingly, if Mr. Smith, who was 38.6 years of age at the time of his death, worked until he was 67 years old, which is the normal retirement age under the Social Security System, see Report of David L. Hopkins, 2/13/2003, Ex. 36, at 2, his future worklife expectancy would be 28.4 years.*fn29 Thus, Mr. Smith's $70,000 annual salary for 28.4 years comes to $1,988,000. From this amount are deducted taxes, which the expert estimated would be 21 percent of income or $417,480, and personal maintenance expenses, which the expert estimated would be 23 percent of income or $457,240. Thus, Mr. Smith's expected net earnings over the course of his working life total $1,113,280. (These figures include neither inflation nor reduction of future earnings to present value, and instead assume that they will essentially cancel each other out.)
2. Pain and suffering
The effort after a tragedy of this nature to calculate pain and suffering is difficult at best. Unfortunately, there is no way to bring back Mr. Smith and no way to even come close to understanding what he or Mr. Soulas experienced during their last moments. Under our legal system, compensation can only be through the award of a sum of money. While always difficult and never exact, the devastation and horror accompanying this tragedy makes a realistic appraisal almost impossible.
There is no direct evidence of when Mr. Smith was killed and therefore what pain and suffering he endured, but plaintiff urges that it is reasonable to infer he survived the crash of the plane into the South Tower, where he worked. Mr. Smith telephoned a SunGard vice president minutes after the first tower — i.e., not the tower he was in — was hit to say that it was on fire, and he was told that the cause of the fire was a plane and that he should get out. His office was on the 97th floor and the second plane that struck his building did so between the 73rd and 82nd floor, thus creating the possibility that he was killed while descending at the instant that the second plane hit his building. Plaintiffs suggest a figure of $10 million for Mr. Smith's pain and suffering, but, not surprisingly, offer no guidance on how this figure is derived. Given the uncertainty of when Mr. Smith was killed and the pain and suffering, if any, he endured, an award of $1 million is appropriate. Again, since the al Qaeda defendants and Iraq are jointly and severally liable, they are all responsible for the payment of any judgment that may be entered. Because Mr. Smith's estate is entitled to treble damages against the al Qaeda defendants pursuant to § 2333, the al Qaeda defendants are jointly and severally liable for an additional $2 million for his pain and suffering.
3. Solatium damages
The Flatow Amendment provides that plaintiffs can recover damages for loss of solatium, which is defined as "[d]amages allowed for injury to the feelings," see Black's Law Dictionary 1391 (6th ed. 1990), or "for the mental anguish, bereavement, and grief that those with a close relationship to the decedent experience as a result of the decedent's death." See Higgins v. Islamic Revolutionary Guard, No. 99 Cv. 00377, 2000 WL 33674311, 2000 U.S. Dist. Lexis 22173, at *21 (D.D.C. Sept. 21, 2000) (citing Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998)). According to the court in Flatow, which provided an extensive discussion of solatium:
Solatium . . . began as a remedy for the loss of a
spouse or a parent. It has since expanded to include
the loss of a child, including in some states the
loss of an emancipated or adult child. Where the
claim is based upon the loss of a sibling, the
claimant must prove a close emotional relationship
with the decedent.
Flatow, 999 F. Supp. at 29-30 (citations and footnote omitted). "Spouses and relatives in direct lineal relationships are presumed to suffer damages for mental anguish. The testimony of sisters or brothers is ordinarily sufficient to sustain their claims for solatium." Id. at 30. The factors commonly considered in computing awards for loss of solatium include:
(1) whether the decedent's death was sudden and
unexpected; (2) whether the death was attributable to
negligence or malice; (3) whether the claimants have
sought medical treatment for depression and related
disorders resulting from the decedent's death; (4)
the nature (i.e. closeness) of the relationship
between the claimant and the decedent; and (5) the
duration of the claimant's mental anguish in excess
of that which would have been experienced following
the decedent's natural death.
Stethem v. Islamic Republic of Iran, 201 F. Supp.2d 78, 90 (D.D.C. 2002).
Plaintiffs seek solatium damages for the relatives of George Smith as follows: $5 million for his father (Raymond Anthony Smith), his grandmother (Marion Thomas), and for each of his siblings (Deborah Sallad, Elaina Smith, Carl Smith) and his step-siblings (Tanya Warren, Barbara Dixon, Letricia Smith, Korry Smith, and Kevin Smith). Plaintiffs refer to a series of cases as guideposts in which spouses of victims of terrorism have been awarded between $8-12 million, parents between $2.75-5 million, children between $5-12 million, and siblings between $2.5 and 5 million.*fn30 These cases are instructive to the extent that they also involve victims of terrorism and thus share several of the factors that Stethem enumerated, e.g., that the deaths were sudden and unexpected and attributable to malice. It should be noted that they each involve horrific circumstances that may equal or surpass the circumstances presented here. See, e.g., Higgins, 2000 U.S. Dist. Lexis 22173 (Marine Corps colonel held hostage for approximately 529 days brutally tortured and eventually murdered; a videotape of him hanging by his neck was broadcast around the world and seen by his relatives); Weinstein, 184 F. Supp.2d at 17 (passenger on bus injured by suicide bomb remained conscious and in extreme pain for 49 days before dying of the wounds); Surette, 231 F. Supp.2d at 262 (high-ranking CIA agent was held hostage for over fourteen months and eventually died due to torture and lack of medical care); Anderson v. Islamic Republic of Iran, 90 F. Supp.2d 107 (D.D.C. 2000) (plaintiff was kidnapped and tortured for seven years). Farther, plaintiffs fail to include several cases where lesser amounts have been awarded for loss of solatium. See Jenco v. Islamic Republic of Iran, 154 F. Supp.2d 27, 37 (D.D.C. 2001) (siblings awarded $1.5 million each where torture-victim survived and was returned to live among family for ten years); Kerr v. Islamic Republic of Iran, 245 F. Supp.2d 59, 64 (D.D.C. 2003) ($3 million awarded to decedent's children and $1.5 million awarded to decedent's siblings). Plaintiffs also fail to show how their circumstances compare with those in the cases they do cite. See Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 30 (D.D.C. 1998) ("As damages for mental anguish are extremely fact-dependent, claims require careful analysis on a case-by-case basis.").
As noted above, George Smith was born into and raised amid very difficult circumstances. George was the third child of five (and first boy) of Raymond Alexander Smith and Georgia Lee Jackson,*fn31 who were married in 1960 and lived together in Philadelphia, Pa., until they separated in 1963. In 1964, his father moved away to Albany, N.Y., where he met Barbara Miller with whom he fathered five more children.*fn32 (He also had an eleventh child, Letricia Smith, by a third woman.) George's younger sister Elaina, who was born in 1964, was abandoned at the hospital and raised by an aunt, unaware until her teens that she had older siblings.*fn33 Because their mother was infrequently around, George and his sisters Christina and Deborah were raised mainly by their maternal grandmother until her death. George's older sister Deborah describes how the three of them slept in the same bed and fell asleep at night to the sound of rats in the room. In 1973, George's mother was killed by a stray bullet and for several weeks the children took care of themselves until a neighbor eventually contacted their paternal grandmother, Marion Thomas, who took the children in to her home in Phoenixville, Pa. In either 1975 or 1976, George's father returned to Pennsylvania and moved into his mother's house in Phoenixville.
On these facts, the Court has no reservation about concluding that George's paternal grandmother Marion Thomas is entitled to loss-of-solatium damages. Although plaintiffs have not cited any precedent where a grandparent has been awarded these damages, it is clear that she was George's surrogate mother since 1973 and that they developed an extremely close bond. Cf. Surette, 231 F. Supp.2d at 270 (awarding solatium to decedent's unmarried partner for over twenty years). All testimonials submitted note the closeness of this relationship, which Ms. Thomas described as follows:
He and I were very close when he was a boy and that
closeness did not diminish when he got older. He made
a point to keep in touch with me no matter where he
was or what he was doing. If he was out of town, he
would call me on the phone. If he went on vacation,
he would send me letters or postcards. If he was in
the area, he would always stop in to see me.