Sudan Must Pay Terrorism Victims Punitive Damages, Supreme Court Rules

May 18, 2020 Updated: May 18, 2020

The Supreme Court reinstated a $4.3 billion punitive damages award against Sudan on May 18 for providing material support and safe haven to a Muslim terrorist group that carried out deadly bombings of U.S. embassies in East Africa in the late 1990s.

The decision was a victory for the Trump administration, which argued on behalf of the victims of terrorism as a so-called friend of the court.

In the 8–0 decision in Opati v. Republic of Sudan, the high court reversed the District of Columbia Circuit Court of Appeals decision to throw out the punitive damages. A separate $5.9 billion in non-punitive damages was not at issue in the case. Although Sudan failed to enter a legal defense to those claims and lost by default, the country’s government sent lawyers to court to fight the punitive damages claim.

Although sovereign nations are usually immune from lawsuits in U.S. courts, Congress laid out an exception in 1996 to make nations officially designated as state sponsors of terrorism liable for acts of terrorism. That law gave victims the ability to seek compensatory damages but not punitive damages, which are intended to penalize and discourage wrongdoing.

The Foreign Sovereign Immunities Act (FSIA) was further amended in 2008 to permit victims to seek damages under specific circumstances.

But the appeals court ruled in favor of Sudan, finding that the FSIA barred damages for events that preceded the 2008 amendment. The Supreme Court rejected that conclusion.

The new opinion was penned by Justice Neil Gorsuch. Justice Brett Kavanaugh, who used to sit on the appeals court, didn’t participate in the case. Oral arguments took place Feb. 24.

Legislation usually only applies prospectively, Gorsuch wrote for the court.

“This principle protects vital due process interests” and ensures parties have an opportunity to know what the law is “before they act, and may rest assured after they act that their lawful conduct cannot be second-guessed later.”

The same principle also “serves vital equal protection interests as well: If legislative majorities could too easily make new laws with retroactive application, disfavored groups could become easy targets for discrimination, with their past actions visible and unalterable.”

The Supreme Court didn’t accept Sudan’s contention that Congress had “to provide a super-clear statement when it wishes to authorize” punitive damages, “because retroactive damages of the punitive variety raise special constitutional concerns,” Gorsuch wrote.

“Congress was as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct,” the justice wrote, noting that Sudan missed an opportunity to argue that the statute itself was unconstitutional.

“Punitive damages aren’t merely a form a compensation but a form of punishment, and we don’t doubt that applying new punishments to completed conduct can raise serious constitutional questions,” Gorsuch wrote.

“But if Congress clearly authorizes retroactive punitive damages in a manner a litigant thinks unconstitutional, the better course is for the litigant to challenge the law’s constitutionality, not ask a court to ignore the law’s manifest direction. Besides, when we fashion interpretive rules, we usually try to ensure that they are reasonably administrable, comport with linguistic usage and expectations, and supply a stable backdrop against which Congress, lower courts, and litigants may plan and act.”

The case was considered unusual because the plaintiffs sought compensation not just for the 12 Americans killed and injured in al-Qaida’s 1998 deadly truck bombings of U.S. embassies in Dar es Salaam, Tanzania; and Nairobi, Kenya, but also for non-U.S. citizen employees who worked for those diplomatic missions. The attacks left more than 200 people dead and thousands injured. About 600 people signed on as plaintiffs to the lawsuit.

Under dictator Omar al-Bashir, who was the country’s president from June 1989 until he was ousted in an April 2019 coup d’état, Sudan harbored and provided sanctuary to Islamic terrorist groups. Al-Qaida leader Osama bin Laden is thought to have lived in Sudan in the 1990s. A provisional civilian-military government is in power in Khartoum, and democratic elections are expected to take place in 2021.

After revolutionary changes took place in the country, Sudan now wants to normalize relations with the United States so it can reenter the international community and gain access to international capital. In his final days in office, then-President Barack Obama began lifting U.S. sanctions against Sudan. His successor, President Donald Trump, has also rescinded U.S. sanctions against the country.