Supreme Court Says Sudan Liable for $4.3 Billion in Damages for 1998 Embassy Bombings

May 18, 2020 by Dan McCue
Statue outside the U.S. Supreme Court building in Washington, D.C. (Photo by Dan McCue)

WASHINGTON – The Supreme Court ruled Monday that Sudan is liable for $4.3 billion in punitive damages for the 1998 embassy bombings in Kenya and Tanzania that left 224 people dead and injured thousands.

Despite the court’s unanimous ruling, however, it is unlikely the victims and survivors of the simultaneous truck bombings in Kenya and Dar es Salaam will ever collect the full amount.

The incidents were the first major attacks on U.S. targets by al-Qaeda.

The case before the Supreme Court in involved lawsuits filed by victims and their families against Sudan accusing the country of causing the bombings by aiding al-Qaeda and leader Osama bin Laden, who lived in Sudan in the 1990s.

The over 500 people involved in the case are mostly foreign citizens, either U.S. government employees or contractors injured in the bombings or relatives of those who died.

After more than a decade of motions, intervening legislative amendments and a trial, a lower court initially awarded the group more than $10 billion, but an appeals court threw out $4 billion of the award that was punitive damages.

In doing so, it agreed with Sudan’s argument that the Foreign Sovereign Immunities Act barred the awarding of punitive damages.

Justice Neil Gorsuch delivered the opinion of the court, which all the other members joined except for Justice Brett Kavanaugh, who was named to the court after the case was considered.

In vacating the appeals court’s decision, Gorsuch says Sudan essentially was asking the court to “create and apply a new rule requiring Congress to provide a super-clear statement when it wishes to authorize” the use of punitive damages.

“We decline this invitation,” Gorsuch wrote. “It’s true that punitive damages aren’t merely a form of compensation but a form of punishment, and we don’t doubt that applying new punishments to completed conduct can raise serious constitutional questions.”

If Sudan thought the retroactive punitive damages awarded in the case were unconstitutional, the better course of action would have been to challenge the law’s constitutionality head on, Gorsuch said, “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,” he wrote

“Sudan’s proposal promises more nearly the opposite: How much clearer-than-clear should we require Congress to be when authorizing the retroactive use of punitive damages?” Gorsuch continued. “Sudan doesn’t even try to say, except to assure us it knows a super-clear statement when it sees it, and can’t seem to find one here. That sounds much less like an administrable rule of law than an appeal to the eye of the beholder.”

Aside from the question of the punitive damages award, the justices refused to wade into other outstanding matters related to the case, including whether Sudan can be held liable for punitive damages for claims filed under state law.

These matters it left for the appeals court to reconsider.

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