Shatsky v. Syrian Arab Republic

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

sHABTAI sCoTT sHATSKY, er 31., )
Plaintiffs, §

v. § Civil Case No. 02-2280 (RJL)
Pi»;iLEsIrINE LIBERATION oRGANIZATIoN §

an PA ESTINIAN AUTHoRITY, § F I L E D

Defendants. ) Nov 1 7 2017

-h~ ..
MEMoRANDUM oPINloN c%'$l‘s’ ills ih%'$nti.l.lrti§`t 513 'r';‘mila

(November 16 ,2017) [Dkt. #354]

On June 20, 2017-following years of unnecessarily protracted litigation,
distinguished, at times, by the parties’ use of dilatory tactics rather than their commitment
to “the just, speedy, and inexpensive determination of every action and proceeding,” Fed.
R. Civ. P. l_I granted summary judgment for defendants. The cornerstone of my ruling
Was the determination that plaintiffs lacked Sufficient admissible evidence to prove the
essential elements of their claims. Before the Court is plaintiffs’ Motion to Alter or Amend
Judgment (“Pls.’ Mot.”) [Dkt. #354], through Which plaintiffs seek to introduce new
evidence and alter that ruling. Upon consideration of the pleadings, relevant law, and the
entire record herein, the Court Will DENY plaintiffs’ motion.

BACKGROUND

The Court presumes familiarity With its prior opinions and Will not belabor the facts.
See, e.g., Shatsky v. Palestine Liberation Org., Civil Case No. 02-2280 (RJL), 2017 WL

2666111 (D.D.C. June 20, 2017) (“Shatsky II]”); Shatsky v. Syrian Arab Republic, 312

F.R.D. 219 (D.D.C. 2015) (“Shatsky II”); Shatsky v. Syrian Arab Republic, 795 F. Supp.
2d 79 (D.D.C. 2011) (“Shatsky ]”). On February 16, 2002, a suicide bomber detonated an
explosive device inside a crowded piZZeria in the West Bank village of Karnei Shomron.
The blast killed two people, both U.S. nationals, and Wounded thirty others, including four
U.S. nationals The U.S. victims and their personal representatives initiated the instant suit
against the Palestinian Authority (“PA”) and the Palestine Liberation Organization
(“PLO”) (collectively, “defendants”), alleging that the bombing Was enabled by those
entities Plaintiffs asserted violations of the Anti-Terrorism Act (“ATA”), 18 U.S.C.
§§ 2331-2339D, and related common law tortsl As relevant here, plaintiffs’ theory of
liability posits that defendants proximately caused the bombing by paying a salary to Ra’ed
Nazal, a Captain in the Palestinian Preventative Security Services, While structuring his no-
shoW job in a manner that left him free to plan the Karnei Shomron bombing and recruit
the suicide bomber. See Shatsky I[I, 2017 WL 2666111, at *2.

On June 20, 2017, l granted summary judgment for defendants As stated above,
the cornerstone of my ruling Was the determination that plaintiffs lacked sufficient
admissible evidence to prove the essential elements of their claims 1 found, among other
things, that “no reasonable jury could conclude that the PA proximately caused the

bombing by paying Nazal a salary” because plaintiffs had “identifled no admissible

' Plaintiffs also sued various Syrian entities and individuals As I have previously explained, see
l\/lem. Order 2 & n.4 (Oct. 31, 2013) [Dkt. #249], plaintiffs voluntarily dismissed the Syrian defendants and
refiled those claims in a separate action that remains pending before the Court as Shalsky v. Syrian Arab
Repub/ic, Civil Case No. 08-0496 (D.D.C).

evidence supporting their theory that Nazal planned the bombing.” Id. at *9.2 The instant
Motion seeks to remedy this evidentiary deficiency by propounding new evidence which,
in plaintiffs’ view, “establish[es] proof of Ra’ed Nazal’s involvement in the Karnei
Shomron bombing.” Pls.’ Mem. Supp. Mot. to Alter or Amend J. 4 (“Pls.’ Mem.”)
[Dkt. #354-1].

Plaintiffs’ new evidence consists of statements made by an individual named Allam
Kaabi during an audiovisual interview he gave on December l7, 2016. Kaabi is a member
of the Central Committee for the Popular Front for the Liberation of Palestine (“PFLP”), a
faction within the PLO that has been designated by the United States as a Foreign Terrorist
Organization. See Shatsky I]I, 2017 WL 2666111, at "‘1. According to plaintiffs, Kaabi
has a decades-long history of personal involvement in violent extremist and terrorist
activities See Pls.’ Mem. 8~13.3 The interview, which the Court has viewed in full,
together with its English-language translation, see Pls.’ Mot., Exs. 7 & 7A, Certified
Translation and Video File [Dkt. #354-9], was streamed live on Facebook by the PFLP,
see Pls.’ Mot., Ex. 10, PFLP Facebook Page [Dkt. #354-12], and maintained in a video

archive on that site, Pls.’ Mot., Ex. ll, PFLP Facebook Page [Dkt. #354-13]. lt is unclear

2 That finding, as plaintiffs correctly acknowledge, see Pls.’ Mem. l n. l , also precluded recovery on
any theory of respom)'e.:ir Su,r)ericr that survived my separate holding that defendants lacked capacin to be
sued in tort under D.C. lavv,.s'eeh`hc:rsk_v HI, 2017 WL 26661 1 l, at *10-| l. (A|l ol"lhat assuming, arguenrr'u,
that the ATA permits assignment of vicarious liability_a question our Circuit has “avoid[ed] deciding.”
Eslate ofParsons v. Palestinian Auth., 651 F.3d 118, 148 (D.C. Cir. 2011) (Brown, J., concurring in part
and dissenting in part); see also Livnat v. Palestinian Auth., 851 F.3d 45, 47 (D.C. Cir. 2017) (affirming
dismissal for lack of personal jurisdiction without comment on plaintiffs’ theory of vicarious liability).)

3 Although, as plaintiffs acknowledge, see Pls.’ Mem. 8 n.5, much of this information about Kaabi
is not admissible, 1 may consider it in deciding whether Kaabi’s statements are admissible, see Fed. R. Evid.
104(a) (“The court must decide any preliminary question about whether . . . evidence is admissible. 1n so
deciding, the court is not bound by evidence rules, except those on privilege.”).

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from the exhibits and briefs whether Kaabi’s interviewer was “in-house” with the PFLP or
just a friendly member of the Palestinian press

1n the interview, Kaabi recounts events occurring in 2001 and 2002 during the
Second 1ntifada. Kaabi’s narrative begins with the death of Abu Ali l\/lustafa, then
Secretary General of the PFLP. According to Kaabi, Mustafa “planted a bomb inside a
watermelon” that an unnamed individual then placed “on a Zionist bus in Jerusalem.” Pls.’
l\/lot., Ex. 7, Certified Translation, at 4. lsraeli intelligence discovered the booby-trapped
watermelon and killed l\/lustafa. Ia’. at 4-5. Within hours of Mustafa’s death, members of
the PFLP retaliated by killing a rabbi. Id. at 5. After that, the PFLP renamed its militant
elements as the “Abu Ali Mustafa Brigades” and launched a campaign of terror attacks
where, in Kaabi’s words, “the cells fired at bypass roads, at vehicles of settlers, at
settlements, at military posts and bases.” Ia’. at 7-8. According to Kaabi, “[t]he most
significant operation carried out by the Front was the assassination of Rehavam Ze’evi,”
1srael’s Minister of Tourism. Id. at 8.

Kaabi also reports in his interview that PFLP cells began using suicide bombers in
the wake of l\/lustafa’s death. Kaabi’s narrative describes three such attacks, including, of
most relevance here, the bombing of the pizzeria in Karnei Shomron:

The first suicide attack was carried out in the settlement of Ariel by

istz`sh ’hadz` [suicide attacker] Shadi Nassar, a resident of Madama village in

Nablus. He was recruited and prepared by Comrade Yamin Faraj. 1 think

that he had been in jail and was a member of the Yamin Faraj cell. A lot of

people were killed and injured in that operation, but the occupation chose not
to reveal the number of those killed and injured in that operation.

After that, the Karnei Shomron operation was executed by comrade
Raed Nazal from Qalqilya in coordination with the comrades in the

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Brigades in Nablus 1t was a joint, distinguished effort. 1 think it was carried
out by istish ’hadi [suicide attacker] Sadeq Abd al-Hai. Many settlers were
killed inside the settlement After the operation the 1sraeli army attacked
several Front headquarters in Nablus with aircraft and artillery fire.

The Brigades in Nablus was the first organization to carry out a suicide attack
within the ‘48 borders - in Netanya’s city market - after Operation Defensive
Shield and after Sharon boasted that he had destroyed the resistance and that
the resistance would not be heard of anymore, telling the Zionists to enjoy a
long, undisturbed sleep.

The now-liberated comrade Duaa al-Jayyousi participated in the operation.
1 was among the members of the cell. . . .

Ia’. at 9 (bold emphasis added). Not surprisingly, plaintiffs seek to introduce the statement
attributing the Karnei Shomron bombing to Ra’ed Nazal. They contend, naturally, that the
admission of this statement would enable them to overcome the evidentiary deficiency
identified in my prior opinion granting summary judgment for defendants

Plaintiffs are less than forthcoming, however, about the circumstances surrounding
their discovery of the Kaabi interview. 1n their memorandum, they state that it was
“recently discovered” by counsel. Pls.’ Mem. 3. 1n response to questions raised by
defendants, plaintiffs report that they “stumbl[ed] upon” the interview “shortly before the
release ofthis Court’s June 20, 2017 Memorandum Opinion.” Pls.’ Reply to Defs.’ Opp’n
to Pls.’ Mot. to Alter or Amend J. l (“Pls.’ Reply”) [Dkt. #356]. 1n a footnote, they clarify
that counsel “became aware” of the interview on May 22, 2017. ]d. at 10-11 n.3. They
also state that a rough draft of a translation was completed by May 25, 2017, and that
counsel “was in the midst of determining whether the evidence would be admissible and
therefore could and should be brought to the Court’s attention” when my summary

judgment opinion issued. Ia’. Unfortunately, plaintiffs do not describe how they “stumbled

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upon” or “became aware” of the interview, or what steps they took, if any, that could have

allowed them to discover it sooner.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 59(e) permits “motion[s] to alter or amend a
judgment [that are] filed no later than 28 days after the entry of the judgment.” Fed. R.
Civ. P. 59(e). “Rule 59(e) motions are disfavored[.]” SEC v. Bilzerz`an, 729 F. Supp. 2d 9,
13 (D.D.C. 2010). “A district court need not grant a Rule 59(e) motion unless there is an
‘intervening change of controlling law, the availability of new evidence, or the need to
correct a clear error or prevent manifest injustice.” Mohammadi v. Islaml'c Republic 0f
Imrz, 782 F.3d 9, 17 (D.C. Cir. 2015) (quoting Patron Boggs LLP v. Chevron Corp., 683
F.3d 397, 403 (D.C. Cir. 2012)). Even then, “[r]econsideration ofajudgment after its entry
is an extraordinary remedy which should be used sparingly.” Id. (quoting ll Charles Alan
Wright & Arthur R. l\/liller, Federal Praclz'ce and Procedure § 2810.1 (3d ed. 2012)).

The instant Motion is premised on discovery of new evidence. “Rule 59(e) motions
on the basis of new evidence are restricted to evidence that is ‘newly discovered or
previously unavailable despite the exercise of due diligence.”’ Johnson v. Dl`strict of
Columbz`a, Civil Case No. 14-677 (JDB), 2017 WL 3084378, at *3 (D.D.C. July 19, 2017)
(quoting Nl`edermeier v. O]j(z`ce ofBaucus, 153 F. Supp. 2d 23, 29 (D.D.C. 2001)). They
“may not be used to . . . present evidence that could have been raised prior to the entry of
judgment.” Exxon Shz`pping C0. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 Charles
Alan Wright & Arthur R. Miller, F ederal Pracrz'ce and Procedure § 2810.1 (2d ed. 1995)).
“Courts routinely deny Rule 59(e) motions where all relevant facts were known or should

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have been known by the party prior to the entry of judgment[.]” Johnson, 2017 WL
3084378, at *3 (collecting cases).

ANALYSIS

Plaintiffs’ motion seeks to present additional evidence that was not before me when
1 granted defendants’ motion for summary judgment. Specifically, plaintiffs seek to
introduce the statement in Allam Kaabi’s interview linking Ra’ed Nazal to the Karnei
Shomron bombing. Although plaintiffs concede that this out-of-court statement is hearsay,
they argue that it is admissible as a statement against interest pursuant to Federal Rule of
Evidence 804(b)(3).

Before reaching the issue of admissibility, 1 must pause briefly to address the timing
of plaintiffs’ l\/lotion. Kaabi’s Facebook interview was given on December 17, 2016_six
months prior to entry of summary judgment Plaintiffs’ failure to bring this evidence to
the Court’s attention sooner raises a serious concern that they may be using Rule 59(e) to
“present evidence that could have been raised prior to the entry of judgment.” Exxon
Shipping, 554 U.S. at 485 n.5. Oddly, plaintiffs make little effort to assuage that concern.
They report that they “became aware” of the Kaabi interview on May 22, 2017. Pls.’ Reply
10-11 n.3. But, as noted previously, they never recount how they became aware of the
interview, or what steps they took, if any, that could have allowed them to become aware
of it sooner. Plaintiffs’ decision to omit that information, even when pressed by defendants,
makes it difficult for the Court to conclude, as 1 must under Rule 59(e), that plaintiffs’ late-
produced evidence “is newly discovered or previously unavailable despite the exercise of
due diligence.” Niedermeier, 153 F. Supp. 2d at 29 (emphasis added).

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Putting aside the difficulties imposed by plaintiffs’ delay, it is clear that Kaabi’s
statement about Nazal is not admissible Assuming, without deciding, that Kaabi is in fact
“unavailable” as Rule 804(b)(3) requires,4 plaintiffs must still demonstrate that a
“reasonable person in the declarant’s position” would think the statement was “contrary to
the declarant’s proprietary or pecuniary interest,” or likely to “expose the declarant to civil
or criminal liability.” Fed. R. Evid. 804(b)(3). “The rationale of the statement against
interest exception,” as our Circuit recently explained in Gilmore v. Palestinian laterim Self-
GovernmeritAuthOrii)/, 843 F.3d 958 (D.C. Cir. 2016) (“Gi!more 11”), “is that a reasonable
person will not make a damaging statement against himself or herself unless it is true,” id.
at 971 (quoting 5 lack B. Weinstein & Margaret A. Berger, Weinstein ’s Federal Evidence
§ 804.06[4][0] (Joseph M. McLaughlin ed., 2d ed. 2013)), cert. denied, No. 16-1359, 2017
WL 1955929 (U.S. Oct. 2, 2017). Bearing that rationale in mind, it is clear that Rule
804(b)(3) does not permit admission of the statement identifying Nazal.

Kaabi asserts that “the Karnei Shomron operation was executed by comrade Ra[’]ed
Nazal from Qalqilya in coordination with the comrades in the Brigades in Nablus” and then
“carried out by . . . Sadeq Abd al-Hai.” Pls.’ Mot., Ex. 7, Certified Translation, at 9. He
reports that “[m]any settlers were killed” and that 1srael responded “with aircraft and

artillery fire” against PFLP targets Id, Plaintiffs contend that these statements reveal

4 The parties hotly contest Kaabi’s availability. Plaintiffs argue Kaabi is “unavailable” because he
lives in the Gaza Strip, an area outside the subpoena power ofthe U.S. courts, and because he would likely
assert the Fifth Amendment privilege against self-incrimination ifhe were compelled to testify. Pls.’ Mem.
13-15; Pls,’ Reply 1 1-20. Defendants counter that plaintiffs cannot assert the Fifth Amendment privilege
on Kaabi’s behalf, and that plaintiffs have failed to show Whether they have made reasonable efforts to
procure Kaabi’s testimony by means other than subpoena. Defs.’ Opp’n to Pls.’ l\/lot. to Alter or Amend J.

8_10 [Dki. #355].

Kaabi’s “inside knowledge,” Pls.’ Mem. 16, and show that Kaabi and Nazal “were both
members of the same conspiracy,” id. at 18, thereby exposing Kaabi to liability. 1 disagree

To begin, it is not at all clear that Kaabi’s statements regarding the Karnei Shomron
bombing reveal the type of inside knowledge or association with a conspiracy that plaintiffs
seek to impute After all, many innocent people who were living in the West Bank or Gaza
Strip during the Second 1ntifada are likely familiar, fifteen years later, with the names of
individuals or groups believed responsible for various attacks Knowledge, or repetition
of such information, does not necessarily indicate their involvement in the attacks

More fundamentally, Kaabi’s statement about Nazal is not so self-inculpatory that
a reasonable person would have made it only if he believed it to be true “Rule 804(b)(3)
‘does not allow admission of non-self-inculpatory statements even if they are made within
a broader narrative that is generally self-inculpatory.”’ Gilmore II, 843 F.3d at 971
(quoting Williamsorz v. United States, 512 U.S. 594, 600-01 (1994)). 1n other words, as
the leading commentator on our Rules of Evidence has helpfully explained, “a statement
which shifts a greater share of the blame to another person (self-serving) or which simply
adds the name of a partner in crime (neutral) should be excluded even when closely
connected to a statement that assigns criminality to the defendant.” 5 Jack B. Weinstein &
Margaret A. Berger, Weinstein ’s Federal Evidence § 804.06[4][d][iii] (Joseph M.
l\/chaughlin ed., 2d ed. 2013); accord Williamsori, 512 U.S. at 600 (“[T]he fact that a
statement is collateral to a self-inculpatory statement says nothing at all about the collateral
statement’s reliability.”). Thus, even if Kaabi’s narrative about the Karnei Shomron

bombing is generally self-inculpatory, the collateral statement identifying Nazal cannot be

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admitted to prove Nazal had a role in the bombing because that Statemerit does not
inculpate Kaabi in anything.

1n addition, even if the statement identifying Nazal did inculpate Kaabi, there is
much reason to doubt whether Kaabi would have perceived that inculpation as “contrary
to . . . [his] interest.” Fed. R. Evid. 804(b)(3); see 5 Jack B. Weinstein & Margaret A.
Berger, Weinsteiri’s Federal Evidence § 804.06[4][d][i] (Joseph M. McLaughlin ed., 2d
ed. 2013) (“At the moment the statement is made the declarant must believe that the
statement is against the declarant’s interest.”). As other courts have observed, “‘under the
perverse assumptions of terrorists, an armed attack on civilians reflects glory. Taking
“credit” for such an attack is deemed a benefit, not a detriment.”’ Gilmore v. Palestinian
Irtterim Self-Gov’tAath., 53 F. Supp. 3d 191, 205 (D.D.C. 2014) (“Gilmore I”) (brackets
omitted) (quoting Gill v. Arab Bank, PLC, 893 F. Supp. 2d 542, 569 (E.D.N.Y. 2012)
(Weinstein, J.)), ajj"’d on other grounds, 843 F.3d 958 (D.C. Cir. 2016); see also Strauss v.
Credit Lyonnais, S.A., 925 F. Supp. 2d 414, 449 (E.D.N.Y. 2013) (“While admitting to a
violent attack on innocents typically is detrimental to a declarant’s interests the interests
and motives of terrorists are far from typical.”). The record in this case confirms that
warped reality. Kaabi’s interviewer treated him like a heroic celebrity. See, e.g., Pls.’
Mot., Ex. 7, Certified Translation, at 2 (“You mobilized the furious youth to confront the
enemy. Please tell us about that role . . . .”). And viewers of the program responded with
praise for the PFLP’s terror campaign. See Pls.’ Mot., Ex. 10, PFLP Facebook Page (“Well
done,” “Well done, Allam,” and “Allah will make your evening happy, comrades”). 1n

such a morally-twisted environment, Kaabi likely expected that any apparent insider-

10

knowledge of recent terrorist attacks would help, not hurt, his proprietary and pecuniary
interests, not to mention the cause to which he is so dearly committed That expectation
created an incentive to lie, thus undermining “the commonsense notion” of reliability on
which Rule 804(b)(3) is founded. Williamson, 512 U.S. at 599.

Compounding this problem further is the likelihood that Kaabi would not have
perceived any risk of increased “expos[ure] to . . . liability” flowing from the Facebook
interview. Fed. R. Evid. 804(b)(3). Kaabi resides in the Gaza Strip, an area the parties
agree is outside the subpoena power of the U.S. courts Pls’ Reply ll-l2; see Defs.’
Opp’n to Pls.’ Mot. to Alter or Amend J. 9~10 [Dkt. #355]. Moreover, as plaintiffs explain,
at the time Kaabi gave the interview, he had already been sentenced by 1srael for the role
he played in the Second 1ntifada and subsequently released through a prisoner exchange
program. Pls.’ Reply l 1-12. On this record, then, it appears there was no reason for Kaabi
to believe that associating himself with the terrorist attacks discussed in his interview,
including the Karnei Shomron bombing, exposed him to any additional liability. Cf. United
States v. Slatterz, 865 F.3d 767, 805-06 (D.C. Cir. 2017) (affirming district court’s
determination that immunized statements against co-conspirator were not admissible as
statements against interest). As such, any presumption that Kaabi would not have made
the statement identifying Nazal unless it was truthful, is further undermined

To summarize, 1 conclude that Kaabi’s statement identifying Nazal is not admissible
because that particular statement does not inculpate Kaabi. 1n the alternative, if the
statement were found to inculpate Kaabi, 1 would join with the district courts that have

found that the ulterior motives at work in a claim of “credit” for a terrorist attack undermine

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that claim’s trustworthiness and prevent admission under Rule 804(b)(3), see, e.g. , Gilmore
1, 53 F. Supp. 3d at 205; Straass, 925 F. Supp. 2d at 449; Gill, 893 F. Supp. 2d at 569-at
least on the facts presented here Either way, Kaabi’s statement identifying Nazal must be
excluded, and plaintiffs’ Motion must be DENIED.
CONCLUSION
For the reasons set forth above, the Court will DENY the extraordinary post-
judgment relief sought by plaintiffs An Order consistent with this decision accompanies

this Memorandum Opinion.

l

RICHARD J. N
United States District Judge

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