IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

V.Z. LAWTON, et al.,

Plaintiffs, Misc. Case No. M8-85

v. [Case No. 02-CV-474 (RBW)

Pending in U.S. District Court

THE REPUBLIC OF IRAQ, for the District of Columbia]

Defendant.

____________________________________

PLAINTIFFS’ EXPEDITED MOTION FOR ORDER TO

SHOW CAUSE RE: SUBPOENA TO MOHAMMED AL-DOURI

Plaintiffs, by counsel and pursuant to Fed. R. Civ. P. 45(e), respectfully request that the Court issue an order to show cause why Mohammed al-Douri (“al-Douri”) should not be held in contempt for failing to comply with a subpoena duces tecum duly served on him by Plaintiffs. Because of the high risk that al-Douri soon will flee the country, Plaintiffs’ respectfully request expedited consideration of this motion. As grounds therefore, Plaintiffs state as follows:

MEMORANDUM OF LAW

I. Introduction and Factual Background.

This is an action on behalf of victims of the April 19, 1995, terrorist bombing of the Murrah Building in Oklahoma City, Oklahoma. Plaintiffs allege that the bombing was, in whole or in part, orchestrated, assisted, and directly aided by agents of the Republic of Iraq (“Iraq”). See attached Complaint (Exhibit 1). The Complaint details the Iraqi government’s conspiracy, along with Timothy McVeigh and Terry Nichols, to perpetrate what was then the most deadly act of terrorism on U.S. soil. As permitted under the Anti-Terrorism and Effective Death Penalty Act, Plaintiffs have brought this action against Iraq, a recognized state-sponsor of terrorism, for its role in the Oklahoma City bombing. Despite being duly served with a summons and a copy of Plaintiffs’ Complaint, Iraq failed to appear, and, consequently, has been adjudged in default by the U.S. District for the District of Columbia. See Exhibit 2 (Case No. 02-CV-474; Default entered January 28, 2003).

Plaintiffs seek to depose al-Douri because they believe he has relevant and unique information necessary to Plaintiffs’ action. Al-Douri has been, and still represents himself as, the ambassador of Iraq to the United Nations. As Iraq has a well-documented history of using its diplomatic corps to perpetrate terrorist conspiracies, al-Douri has been uniquely positioned to have information related to the Oklahoma City bombing and Iraq’s other terrorist activities. See, e.g., Richard Beetson, “Iraq U.S. Accuses U.S. of Trying to Settle Old Scores,” The Times (London), October 10, 2001 (discussing meeting of Iraqi diplomat in Prague with September 11 ringleader Mohammed Atta). Al-Douri also is believed to be a key member of Iraqi intelligence. Moreover, as the sole diplomatic representative of Saddam Hussein’s regime in this country and within this Court’s jurisdiction, Plaintiffs urgently need to obtain information from al-Douri before he flees the country.

Plaintiffs personally served a subpoena duces tecum on al-Douri, requiring him to appear for deposition on April 7, 2003 at 9:00 a.m. See Exhibit 3. The deposition was to take place at the Law Offices of Michael G. Dowd at 420 Fifth Avenue, 25^th Floor, New York, New York 19103. Plaintiffs appeared on that date to take al-Douri’s deposition, but al-Douri failed to appear, to seek a protective order, or to otherwise serve any objections to the subpoena. See Exhibit 4.

II. Discussion.

A. Al-Douri Was Validly Served With The Subpoena.

Pursuant to Fed. R. Civ. P. 45(b)(2), a subpoena may be served “at any place without the district [of the court by which it is issued] that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection specified in the subpoena . . . .” In addition, “[f]ailure by any person without adequate excuse to obey a subpoena served on that person may be deemed a contempt of the court from which the subpoena issued.” Fed. R. Civ. P. 45(e).

As documented by the proofs of service attached hereto, Plaintiffs’ subpoena was duly served on al-Douri. See Exhibit 3. However, al-Douri failed to appear or otherwise object to Plaintiffs’ subpoena. See Exhibit 4.

B. Al-Douri Cannot Hide Behind Diplomatic Immunity.

If al-Douri appeared before this Court, he would no doubt argue that diplomatic immunity shields him from the jurisdiction of this Court. The Vienna Convention, adopted by the United States in 1961, does grant broad, but not unlimited, immunity to diplomatic representatives. Diplomatic Relations Act, 22 U.S.C. §§ 254a-254e. These includes an immunity from being called as a witness in a legal proceeding. Vienna Convention, Article 31(2), 1961 U.S.T. LEXIS 883, *16. The unique situation which the Iraqi government and al-Douri are now in, however, means that al-Douri can no longer take advantage of these protections.

The Anti-Terrorism and Effective Death Penalty Act (“Anti-Terrorism Act”), adopted by Congress in 1996, lifted the immunity of terrorist states and their representatives. Pub L. No. 104-132, 110 Stat. 1241 (codified at 28 U.S.C. § 1605). As a result, United States courts may exercise subject matter jurisdiction under the Anti-Terrorism Act when a U.S. national has been harmed by an act perpetrated either directly or indirectly by a foreign state. Id. This right is conditioned on whether the foreign state has been designated by the executive branch as a state-sponsor of terrorism. Iraq has been so designated. 22 C.F.R. §126.1(d).

The Federal Rules of Civil Procedure provide that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. Fed. R. Civ. P. 26(b)(1). This broad standard reflects the fundamental principle of American jurisprudence that the public has a right to every person’s evidence. Plaintiffs who bring actions under the Anti-Terrorism Act are fully entitled to this right. Accordingly, al-Douri, who possesses unique information relevant to this case, is a proper subject of discovery.

Moreover, any claim by al-Douri that he is a legitimate representative of a foreign state is false. The regime of Saddam Hussein has now been recognized by the United States as, not just a state-sponsor of terrorism, but an illegal and illegitimate entity that the U.S. government is in the active process of terminating. A new interim government is about to be announced. Any claim by al-Douri -- a representative of an illegal and essentially defunct regime -- that he should still be accorded the same immunities that diplomats of lawful nation-states receive is baseless. Thus, in view of Plaintiffs’ strong right to prosecute their case, it is within the authority of this Court to hold al-Douri in contempt for failing to appear for his deposition.

C. High Risk of Flight Requires Prompt Action.

Plaintiffs respectfully request expedited consideration of this Motion. Given the rapidly developing situation in Iraq, Plaintiffs believe that al-Douri will flee this country at any moment and, thus, become permanently beyond the jurisdiction of U.S. courts. Al-Douri has the means and the motive to make himself permanently unavailable to lawful authorities. Because the unavailability of al-Douri could critically harm Plaintiffs’ ability to prove their case, it is vitally important that this witness be compelled to appear without further delay.

III. Conclusion.

For the foregoing substantial reasons, Plaintiffs respectfully request that the Court issue an order to show cause why al-Douri should not be held in contempt for failing to comply with Plaintiffs’ duly served subpoena duces tecum.

Respectfully submitted,

________________________

Michael G. Dowd

Attorney at Law

420 Fifth Avenue, 25th Floor

New York, New York 10018-2729 Telephone: 212-703-5450

Fax: 212-703-5514

Larry Klayman

James F. Peterson

Judicial Watch, Inc.

Suite 725

501 School Street, S.W.

Washington, D.C. 20024

(202) 646-5172

Attorneys for Plaintiffs