WASHINGTON—Plaintiffs asked the Supreme Court on Feb. 24 to rule that the Foreign Sovereign Immunities Act may be applied retrospectively to impose punitive damages on the African nation of Sudan, which the United States has officially placed on its list of state sponsors of terrorism.
The case, cited as Opati v. Republic of Sudan, is unusual because the plaintiffs are seeking compensation not just for 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 have 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 recently took place in the country, Sudan now wants off the crippling U.S. blacklist that prevents it from entering the international community and gaining access to international capital.
Starting in 2001, various plaintiffs sued Sudan for providing material support for terrorism and argued the bombings were “extrajudicial killings” as defined in the Foreign Sovereign Immunities Act (FSIA). Sudan initially defended itself in court but stopped participating in the litigation in 2009. In 2014, the U.S. District Court for the District of Columbia awarded the plaintiffs $10.2 billion in a series of judgments.
In one of those rulings, U.S. District Judge John Bates wrote that this was a “wake-up call” to Sudan, “which after years of sitting on the sidelines” will now be held responsible for helping terrorists. “There is no doubt the attacks were the work of al-Qaida, a grisly precursor to the bombing of the USS Cole and the atrocities of September 11, 2001,” Bates wrote.
The 2000 attack on the guided-missile destroyer in Yemen’s Port of Aden left 17 Americans dead and 39 injured. The 9/11 attacks left about 3,000 people dead in the United States.
But the D.C. Circuit Court of Appeals ruled in favor of Sudan and nixed a $4.3 billion portion of the total that consisted of punitive damages. The appeals court found that the FSIA precluded damages for events that took place before the statute was amended in 2008.
During oral arguments before the high court, the plaintiffs’ lawyer, Matthew D. McGill, said Sudan gave al-Qaida “a safe haven” and “vital material support enabling it to carry out the embassy bombings.” Then-President Bill Clinton retaliated by sending 13 cruise missiles into Khartoum, he said.
“But to impose punitive damages, Sudan argues, somehow would violate principles of fundamental fairness,” McGill said. “If fairness is the issue here, then Sudan surely should lose.”
Sudan continued sheltering bin Laden “even as he issued fatwahs calling for attacks on U.S. interests.”
The attorney for the Sudanese government, Christopher M. Curran, said the appeals court “concluded that the … evidence at the default hearing failed to show that Sudan either specifically intended or directly advanced the 1998 embassy bombings.”
“The D.C. Circuit also acknowledged that Sudan expelled bin Laden permanently in … May of 1996, two years before the U.S. designated bin Laden and al-Qaida as terrorists,” he said.
Curran told Justice Ruth Bader Ginsburg that he felt it necessary to offer that explanation because he was responding to opposing counsel’s “argument that Sudan is the devil incarnate here.”
“I think instead the record shows that Sudan, at most, was negligent in controlling people within its borders and that it’s not—and I want to make it clear that Sudan did not and is not accused of being a terrorist, but instead providing an environment that allowed terrorism to foster, again, long before bin Laden was a notorious terrorist,” he said.
Justice Elena Kagan told Curran that his submissions seemed “awfully complicated and probably not what Congress had in mind.”
Justice Neil Gorsuch seemed to suggest to Curran that the victims should be allowed to make claims for punitive damages.
“If we agree that compensatory damages apply retroactively, on what account does it make sense to speak of punitive damages not also applying retroactively, given that it’s authorized by the same statute?” Gorsuch said.