Family seeks to sue Lebanon over dead father's captivity

A Lebanese American man’s survivors, who filed an ambitious lawsuit last year alleging Lebanon’s security agency kidnapped and tortured him before he died in the U.S., hope to find an opening after the agency recently responded in an American court.

Amer Fakhoury died in the United States in August 2020 at age 57 after suffering from stage 4 lymphoma. His family’s suit says he developed the illness and other serious medical issues while imprisoned during a visit to Lebanon over decades-old murder and torture charges that he denied.

Fakhoury’s detention in 2019 and release in 2020 marked another strain in relations between the United States and Lebanon, which finds itself beset by one of the world’s worst economic disasters and squeezed by tensions between Washington and Iran

Recently, lawyers representing Lebanon’s security agency, the General Directorate of General Security, asked to intervene in the Fakhoury family’s wrongful death lawsuit to have the allegations against it stricken. Lebanon is not named as a defendant in the suit, which targets Iran.

In its filing, the Lebanese security agency claimed the lawsuit falsely accuses it and its director of “serious crimes of kidnapping, torture and killing at the direction or aid of alleged terrorist organizations.”

In turn, the Fakhourys’ lawyer, Robert Tolchin, has asked a judge for permission to formally sue Lebanon, along with Iran. He referred to Lebanon’s action in the family’s response as “a very strange and unusual motion filed by a nonparty.”

The family’s lawsuit filed in Washington in May initially argued it was possible to sue Iran under an exception to the Foreign Sovereign Immunities Act as it has been designated as a “state sponsor of terrorism” since 1984. The suit also described Hezbollah now both a dominant political and militant force in Lebanon, as an “instrument” of Iran.

Iran has yet to respond to the lawsuit. It has ignored others filed against it in American courts in the wake of the 1979 Islamic Revolution and U.S. Embassy hostage crisis. Iran’s mission to the United Nations did not respond to a request for comment.

Similar lawsuits against Iran have won financial judgments, though receiving a payout can be complicated. Any award could come from the United States Victims of State Sponsored Terrorism Fund, which has distributed funds to those held and or affected by the hostage crisis.

Regarding Lebanon, Tolchin said the Fakhourys’ lawsuit would not make sense without the allegations against Lebanon's security agency.

“We interpret that as a waiver of sovereign immunity,” he said to The Associated Press of the agency’s request. “You can’t come in and ask for affirmative relief on the merits, and, at the same time, claim to be immune.”

In a statement provided to The AP, an attorney for the agency, David Lin, said the Fakhourys’ position “that Lebanon or our client somehow waived sovereign immunity by seeking to strike baseless material from the complaint is baffling and wrong as a matter of law.”

The lawyers representing the agency face a Wednesday deadline to respond to the Fakhoury’s request to sue.

Mary Ellen O’Connell, a professor at the Notre Dame Law School, said it may be challenging for a case to be brought against Lebanon, which is not designated a “state sponsor of terrorism."

“Not having that listing will be difficult to go after Lebanon, as opposed to Iran,” she said.

O’Connell also said a move like Lebanon's to strike the allegations “is usually not accepted by the courts as a waiver” of sovereign immunity.

Fakhoury’s imprisonment in Lebanon took place in September 2019, not long after he became an American citizen. Fakhoury visited his home country on vacation for the first time in nearly 20 years. A week after he arrived, he was jailed and his passport was seized, his family has said.

The day before he was taken into custody, a newspaper close to the Iranian-backed Shiite group Hezbollah published a story accusing him of playing a role in the torture and killing of inmates at a prison run by an Israeli-backed Lebanese militia during Israel’s occupation of Lebanon two decades ago. Fakhoury was a member of the South Lebanon Army.

The article dubbed him the “butcher” of the Khiam Detention Center, which was notorious for human rights abuses. Fakhoury’s family said he had worked at the prison as a member of the militia, but that he was a clerk who had little contact with inmates. When Israel withdrew from Lebanon in 2000, Fakhoury left the country like many other militia members who feared reprisals.

Upon his return to Lebanon in 2019, Fakhoury was held for five months before he was formally charged, his family said. By then, he had dropped more than 60 pounds, was suffering from lymphoma, and had rib fractures, among other serious health problems, they said.

In its request to intervene, the security agency said Fakhoury was not kidnapped, but was “lawfully detained” for investigative purposes and then “handed off” to another agency responsible for prosecuting the alleged crimes. It called the allegations “scandalous, impertinent, and highly damaging.”

The family's suit alleges security personnel made him watch as they beat prisoners and kept him isolated in an interrogation room, where he faced verbal and physical abuse with a black sack placed over his head. The lawsuit also claims Fakhoury was threatened with execution unless he signed a declaration saying he was guilty of the accusations mentioned in the newspaper article.

Eventually, the Lebanese Supreme Court dropped the charges against Fakhoury. He was returned to the United States on March 19, 2020, on a U.S. Marine Corps Osprey aircraft. He died five months later.

The lawsuit also linked Fakhoury’s eventual release to the U.S. government's decision in June 2020 to free Kassim Tajideen, a Lebanese businessman who was sentenced to five years in prison for providing millions of dollars to Hezbollah.

The Fakhourys' suit called it a “quid-pro-quo prisoner exchange.” However, Tajideen’s lawyer and the U.S. State Department at the time denied he was part of a prisoner exchange.

Fakhoury first arrived in the United States in 2001. He started a restaurant in Dover, New Hampshire, with his wife and put their four daughters through college. But his family said he felt Lebanon was still home, even though other members of his militia had been targeted in the years after the war.

As early as 2018, Fakhoury had sought assurances from the U.S. State Department and the Lebanese government that he could visit Lebanon freely. His family said he was told there were no accusations against him in Lebanon or no legal matters that might interfere with his return.

After his death, the Fakhourys started a foundation in his name dedicated to helping the families of hostages.

“This is a fight not just for us,” Guila Fakhoury, the oldest of Fakhoury’s four daughters, said in an interview about the lawsuit. “This a fight for our father and a fight for every American who is illegally detained, and for every person who is illegally detained.”

The lawsuit seeks financial damages and a jury trial.

“I know my dad will not rest in peace until we have justice for what has been done to him,” Fakhoury said.

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Gambrell reported from Dubai, United Arab Emirates.