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Evidence of the alleged link between the Iraqi government and al-Qaida may not have been conclusively accepted in the court of public opinion, but it is enough to win a default judgment in the Southern District of New York. Judge Harold Baer ruled Wednesday that the survivors of two people who were killed in the World Trade Center terrorist attack had presented enough evidence, “albeit barely,” to be awarded $104 million in damages against the state of Iraq, Osama bin Laden, and his terrorist network. Addressing what he described as several “novel” issues concerning the Foreign Sovereign Immunities Act and civil recovery under the Antiterrorism Act of 1991, Baer found a reasonable jury could infer “that Iraq provided material support to Al Qaeda and that it did so with knowledge and intent to further Al Qaeda’s criminal acts.” The two cases joined under Smith v. The Islamic Emirate of Afghanistan, 01 Civ. 10132, sought to show through the opinions of experts, including former CIA Director James Woolsey Jr., that Iraq helped train al-Qaida terrorists, and provided them with safe houses and forged documents. Judge Baer granted a default judgment in favor of the families of George Eric Smith and Timothy Soulas in December, and then held an inquest on Feb. 28. In his ruling Wednesday, Baer first decided that the attack on the World Trade Center met the definition of “international terrorism” in the Antiterrorism Act, 18 U.S.C. � 2333, even though an “expansive definition of ‘international terrorism’ might render the ‘domestic terrorism’ superfluous.” Baer then turned to the standard of proof required against the Iraqi defendants under the Foreign Sovereign Immunities Act, 28 U.S.C. � 1608(e), which states that “No judgment by default shall be entered by a court of the United States … against a foreign state … unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” Without a 2nd Circuit case expressly defining the meaning of the phrase “evidence satisfactory to the court,” Judge Baer noted that other courts hold conflicting views about the appropriate standard. And while some courts have required “clear and convincing evidence,” Baer sided with those judges who have applied a more relaxed standard, which he said is “a legally sufficient evidentiary basis for a reasonable jury to find for plaintiff.” Baer then turned to the part of the Foreign Sovereign Immunities Act known as the Flatow Amendment, which withdraws sovereign immunity for cases of state-sponsored terrorism. He noted that amendment, while providing a cause of action against foreign officials or employees whose state has sponsored acts of terror “does not expressly provide a cause of action against the foreign state itself” — and courts have split on whether a foreign state can be named. “While not free from doubt, the better view in my opinion is that the Flatow Amendment likely provides a cause of action against a foreign state,” he said. Judge Baer then turned to the heart of the matter: whether the World Trade Center attack was perpetrated by al-Qaida with the aid of material support from Iraq. He reviewed the testimony of Woolsey and terrorism expert Dr. Laurie Mylroie on alleged links between the Iraqi regime and al-Qaida, including whether lead hijacker Mohammed Atta met with a high-ranking member of Iraqi intelligence in Prague before Sept. 11, and whether Saddam Hussein ran a hijacking training camp in Salman Pak, just outside of Baghdad. “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,” he said. “In particular, 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 weapons inspectors.” After finding that al-Qaida qualified as “non-state actors” and had failed to appear in the lawsuit, Judge Baer found the state of Iraq liable under the Flatow Amendment for economic loss, pain and suffering and injury to feelings. FIRST CHAPTER The decision represents the first chapter in litigation seeking to hold foreign states responsible for Sept. 11. There are currently about 2,000 cases pending before federal Judge Richard C. Casey of the Southern District of New York that seek to hold Iraq, as well as the governments of Sudan and Iran, ministers of the Saudi government and Saudi banks, accountable for alleged sponsorship of the terror group. Kreindler & Kreindler has about 1,500 of the suits, with the remaining 500 or so cases being handled by other New York firms. James Kreindler said the evidence presented to Judge Baer by plaintiffs’ lawyer James Beasley of Philadelphia “was just the tip of the iceberg,” on the connection between al-Qaida and the Hussein regime. One concern facing lawyers representing the families of those who died in the World Trade Center attack is collecting damages. Kreindler said that President George W. Bush has already determined that most of the $1.8 billion in frozen Iraqi assets in the United States should go toward rebuilding Iraq, with about $300 million of that money set aside for prisoners of the regime who were used as human shields. However, Kreindler said his firm is investigating the whereabouts of billions of dollars allegedly stolen by the Hussein family and other Iraqi officials, hoping that some of the money would be steered to the families of World Trade Center victims.

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