Kenyans Can Sue in U.S. Over Embassy Bombing

     (CN) – Kenyans can sue al-Qaida in U.S. courts over the 1998 bombing of the American Embassy in Nairobi because their case “touches and concerns the United States with sufficient force,” a federal magistrate judge ruled.
     “Ample evidence has been presented for me to conclude that the events at issue in this case were directed at the United States government, with the intention of harming this country and its citizens,” U.S. Magistrate Judge John Facciola in Washington, D.C., wrote.
     Hundreds of people were killed in 1998 when simultaneous truck bombs exploded at the U.S. Embassies in Nairobi and Dar es Salaam, the capital of Tanzania. More than 500 Kenyans sued al-Qaida and Osama bin Laden in 1999, claiming they were responsible for the attacks.
     The ruling applies a narrow exception to the Alien Tort Statute recently carved out by the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum Co.
     “[T]he majority of the justices agreed that, except where the claims ‘touch and concern the territory of the United States’ with ‘sufficient force,’ the ATS could not be used to establish jurisdiction in a United States Court for a dispute between foreign nationals for conduct that occurred on foreign ground,” Facciola explained.
     Facciola said the Kenyans’ case against al-Qaida fits this narrow exception, because the embassy attack was intended to kill both American and Kenyan employees, and “sow terror” in the United States.
     “Plaintiffs also presented evidence that the attackers were involved in an ongoing conspiracy to attack the United States, and overt acts in furtherance of that conspiracy took place within the United States,” Facciola wrote.
     “Surely, if any circumstances were to fit the Court’s framework of “touching and concerning the United States with sufficient force,” it would be a terrorist attack that 1) was plotted in part within the United States, and 2) was directed at a United States Embassy and its employees.”
     He had previously stayed the case pending a D.C. Circuit ruling that also hinged on the Supreme Court’s decision.
     Facciola said the Kenyan case differs from Kiobel in that its connection to the United States is much more significant.
     “Kiobel involved Nigerian plaintiffs suing foreign corporations for allegedly assisting in various human rights violations that occurred in Nigeria,” Facciola wrote.
     In April, the high court ruled that a group of refugees living in the United States could not sue the foreign oil companies that allegedly conspired with the Nigerian government to torture them. Those defendants were tied to the United States solely by their corporate presence here, Facciola noted.
     “It is obvious that a case involving an attack on the United States Embassy in Nairobi is tied much more closely to our national interests than a case whose only tie to our nation is a corporate presence here,” he wrote.
     However, the magistrate judge immediately certified the issue to the D.C. Circuit for appeal, saying he “is likely to be the first” to interpret the Kiobel decision.
     “[M]y decision on the subject matter jurisdiction issue is one of first impression and there may be a substantial difference of opinion among judges whether it is correct,” Facciola concluded.
     Bin Laden was killed by U.S. forces in Pakistan on May 2, 2011. The ruling does not address whether he will be dismissed from the case.

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