U.S. to Argue in Supreme Court on Behalf of 1998 Kenya Victims

babu M

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Mar 4, 2010
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The Trump administration is poised to argue before the Supreme Court that victims of the 1998 bombing of the U.S. embassy in Nairobi should be compensated by Sudan, which at that time harbored the attack’s plotters, Osama bin Laden and other al Qaeda members.

In a session scheduled for Monday, President Donald Trump’s solicitor general will add the weight of the federal government to the civil suit brought by the families of embassy employees killed in the blast, giving a significant boost to their cause.

The Trump administration’s support for the families of slain U.S. citizens and government employees, while apparently in keeping with the president’s “America First” theme, is a break from previous such cases in which the administration declined to back the plaintiffs.

In similar cases in the last three years, Trump’s solicitor general has argued for legal reasons against the claims brought by U.S. victims of terrorist attacks, including families of those killed in the bombing of the USS Cole in 2000 and the 1983 bombing of the Marine barracks in Beirut.

Figuring prominently in all those legal efforts is the Foreign Sovereign Immunities Act, which governs the degree to which other countries can be sued in U.S. courts. The 1976 law allowed the families of victims of state-sponsored terrorism to sue for damages. Congress expanded the law in 2008 to make it easier for terrorism victims to go after punitive damages as well.

Balance of Power
Most administrations have viewed these efforts as Congressional encroachments on the executive branch’s exclusive control of foreign policy, according to Orde Kittrie, the author of “Lawfare: Law as a Weapon of War” and a professor of law at Arizona State University.

“Being able to compromise, make amends and move on is an important instrument of foreign policy. If you have litigators suing Iran, the executive branch doesn’t have that leverage anymore,” he said. “It’s Congress taking power from the executive branch and giving it to courts and the private sector.”

“Administrations will go back and forth in terms of their interactions with these private sector lawsuits against state sponsors of terrorism,” added Kittrie. “Some of it is driven by legal angles, and some by policy angles.”

Neither the White House nor the Solicitor General’s office responded to requests for comment.

FSIA Law
The bombings of U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, on Aug. 7, 1998, killed more than 200 people, among the deadliest attacks on U.S. civilians before the terrorist attacks of Sept. 11, 2001. Starting in 2001, victims of the embassy attacks and their families began suing Sudan, arguing that its support of al Qaeda in the 1990s made it responsible for the attacks.

In 2012, after a district court had already ruled that Sudan could be held responsible for the bombings, hundreds of victims and family members of Nairobi embassy employees, including the family of Caroline Opati, filed suit for compensation and punitive damages as outlined under the 2008 expansion of the FSIA law.

They won a judgment of $10.2 billion in 2014. An appeals court subsequently cut that amount by about half, ruling that the 2008 expansion of the FSIA law didn’t allow for punitive damages to be awarded retroactively. Monday’s hearing will focus on whether the appeals court interpreted the 2008 expansion of the FSIA law correctly.

The case is Opati v. Republic of Sudan (17-1268).

Source: Bloomberg
 

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