The Hill, July 28, 2017 - A federal appeals court on Friday ordered Sudan to pay more than $7 billion in damages to American families of victims of the 1998 embassy bombings in Africa.
The U.S. Court of Appeals for the D.C. Circuit upheld a lower court ruling that Sudan was liability for the bombings at U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania.
However, it threw out the $4.3 billion in punitive damages and is seeking to clarify whether the non-American victims’ families qualify for a chunk of the more than $7.3 billion in damages.
The ruling, written by Judge Douglas Ginsburg, a Reagan appointee, affirmed much of the lower courts’ ruling and rejected arguments from Sudan’s government that the court had considered “inadmissible evidence” to make their final determination.
"We’re obviously very pleased that the D.C. Circuit has affirmed [a lower court] decision after what has been a long struggle in court of the families,” said Stuart Newberger, a lawyer for the U.S. families at law firm Crowell & Moring. “We are hopeful that with this ruling, the Americans who were killed in [the attacks] get closer to reaching a final resolution to the tragic saga in their lives and finally get some closure.”
Lawyers for the Sudanese government argued that the entire case should have been thrown out for several reasons, foremost by challenging the court’s interpretation of the Foreign Sovereign Immunity Act (FSIA), which was revised in the middle of the 15-year legal proceeding.
Osama bin Laden lived in Sudan until the government kicked him out in 1996. The court took the side of expert witnesses that said the country continued to fund the terrorist group al Qaeda, which carried out the attacks that killed 200 people — including 12 Americans.
Sudan has denied its responsibility, saying that it tried to offer bin Laden to the U.S.
The federal appeals court is now asking the D.C. Court of Appeals, the top local court in the District of Columbia, if the families of non-American victims are eligible for compensation, because those provisions fall under state and not federal laws.
The ruling comes against the background of increased lobbying by both the American family members and the Sudanese government, which is working to lift U.S. sanctions.
The victims this week hired a lobbying firm, Kamins Consulting, to help obtain compensation for U.S. government workers injured or killed in the attacks in Kenya and Tanzania.
Scott Kamins has worked at both the Republican National Committee (RNC), where he served as its liaison to Capitol Hill, and at the State Department in the George W. Bush administration.
They also have Monument Policy Group, Morris J. Amitay — who worked as a Foreign Service Officer at the State Department from 1962 to 1969 — and McGuireWoods Consulting.
The firms are working to keep and expand a program that provides money to any American victims of terror attacks whot also “have a federal judgment of liability and a separate judgment for a damage award,” said Frank Donatelli of McGuireWoods, who works on the account.
Previous attempts to set up a fund for the victims proved unsuccessful, but lobbyists eventually were able to tuck a provision into an update to a law that pays for healthcare for 9/11 first responders.
It put billions of dollars into an account with money obtained from fines paid by a French bank that violated sanctions levied against Sudan, Cuba and Iran. It also set aside $1 billion for the victims of the U.S. embassy bombings. Earlier this year, those families collected a total of $230 million.
“If they’re going to have access to our financial system, part of the removal of the sanctions should involve compensating American victims of terror that they’ve been found liable for harming,” Donatelli said.
Donatelli said that paying the reparations would likely improve diplomatic relations with the U.S. and pave the way for lifting sanctions on Sudan.
The lobbying firms on retainer, which hadn’t yet been paid by the families, received contingency fees for the successful effort. The three firms made about $600,000 each for two years of work.
Meanwhile, Sudan recently hired Squire Patton Boggs to advocate on its behalf with executive branch officials and Congress on improving relations with the U.S. — including lifting sanctions and paving the way for an increase in foreign investment.
It also has boutique law firm Cooke Robotham on retainer.
“We’re hopeful the government of Sudan will continue to engage in a way that will allow them to finally close the door on their terrorist past and rejoin the family of civilized nations in every respect,” said Newberger, who is not acting as a lobbyist for the families.
He acknowledged that Sudan is a “very different country” from when the litigation began, and has increased cooperation with the United States in fighting terrorism.
During its court fight with the families of bombing victims, Sudan had issues with its legal team.
In 2001, families began to file lawsuits against the country, which has been designated by the State Department as a state sponsor of terror.
Representatives for Sudan did not appear in court until 2004. The country stopped paying and communicating with its counsel the next year and those lawyers were allowed to withdraw from the case in 2009.
Sudan went without representation until 2015, after the courts ruled they had “defaulted” and entered final judgments.
The country then hired White & Case, a large law firm, to file an appeal and motions to dismiss. The firm declined to comment on the ruling.
While the lawsuits were occurring, Sudan was involved in a bitter civil war that tore its country in two, resulting in the creation of South Sudan.
“On Sudan’s domestic troubles, the district court noted that ‘[s]ome of that turmoil... has been of the Sudanese government's own making,’ but, regardless of blame, Sudan could not excuse at least six years of nonparticipation without sending a single communication to the court,” Ginsburg wrote on Friday, citing the lower court decision rejecting motions to dismiss.