Sudan On the Hook for Terrorism Judgments

     WASHINGTON (CN) – A federal judge ruled that Sudan cannot vacate billions of dollars in judgments against it for harboring terrorists responsible for the 1998 U.S. embassy bombings that killed more than 200 people.
     And in a separate order the next day, U.S. District Judge John Bates in Washington, D.C., tossed two families’ claims against Sudan as time-barred.
     Between March and October 2014, the D.C. District Court entered judgments of more than $10 billion on behalf of relatives and victims who had filed seven complaints after the attacks.
     It’s a “wake-up call” to Sudan, “which after years of sitting on the sidelines” will now be held accountable for helping al-Qaida, Bates wrote in one of this week’s rulings.
     Claims against Sudan brought by Nasrin Ashtar Sheikh and Geoffrey Githui Kinyua were dismissed as untimely in Bates’ March 24 order. Both had family members that were killed in an embassy bombing in Kenya. However, the judge ruled the two can restate their claims against Iran.
     On Aug. 7, 1998, U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were rocked by terrorists with truck bombs, led under the direction of Osama bin Laden, Fazul Abdullah Mohammed and Abdullah Ahmed Abdullah.
     More than 200 people were killed in the attack, including 12 Americans. Thousands were injured.
     “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 USS Cole bombing killed 17 Americans in 2000. Thirty-nine were injured, and the attack was considered the precursor of things to come in the Sept. 11 attacks.
     Seven people – James Owens, Winfred Wairimu Wamai, Milly Mikali Amduso, Judith Abasi Mwila, Mary Onsongo, Rizwan Khaliq and Monicah Okobo Opati – sued Sudan and Iran in D.C. Federal Court in 2001, claiming the countries harbored al-Qaida operatives and helped them carry out their terror.
     They claimed Sudan gave al-Qaida a “safe haven” throughout the mid-1990s to let it “grow, train, plan and eventually carry out” the embassy attacks.
     Sudan at first lawyered up and hired an American attorney to defend itself against the first rounds of lawsuits.
     But then the East African nation stopped participating and “eventually ignored the case entirely,” Bates noted, adding that the country never “participated at all in the six other cases” that followed.
     Bates noted in a March 23 ruling that the court held a three-day hearing in October 2010, and about a year later found that Sudan did indeed help support al-Qaeda, was not entitled to sovereign immunity, and was liable for the attacks.
     The court then referred the “hundreds of claims” that followed to special masters, who gathered evidence and reported back. Between March and October 2014, they won final judgments of over $10 billion against Sudan.
     A month later, Sudan finally emerged and began to fight the charges. In April 2015, it sought to vacate the judgments.
     But that’s too little too late, Bates said.
     “Sudan’s years of total nonparticipation in this litigation, despite full awareness of its existence, cannot be justified as ‘excusable neglect,'” the judge wrote.
     The judge pinned his decision on the interpretation of the Foreign Sovereign Immunities Act, enacted by Congress in 1976, which gives federal courts jurisdiction over civil claims against other countries, allowing federal judges to sidestep the notion that other countries are beyond their reach.
     None of that had to do with terrorism or human rights abuses at the time, Bates noted. But in 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act that was designed to dismantle the idea that foreign states were immune to liability for terrorist acts.
     Owens was the first to sue in October 2001 after he was injured in the 1998 Tanzania attack. He was then joined by several dozen co-plaintiffs, including those injured and families of those killed in the attacks.
     The court entered a default judgment against Sudan and Iran in May 2003 for being no-shows. Sudan then limped in a year later and moved to dismiss the judgment.
     The judge dismissed most of the country’s arguments, but gave them a chance to try again.
     Still, Sudan never ponied up to pay its attorneys in 2005 and didn’t work with its legal counsel, according to Bates.
     “Counsel’s difficulties communicating with Sudanese officials persisted, and by late 2007 it appears that Sudan had stopped responding to counsel’s communications entirely,” the judge noted.
     Still, the nation’s attorneys continued to defend the claims.
     Eventually, Sudan filed an interlocutory appeal to the D.C. Circuit, but judges there held firm in 2008 to hold the African country’s feet to the fire.
     Four groups then followed up with four new lawsuits against Iran and Sudan for their alleged roles in the embassy bombings.
     Once again, Sudan did not appear in court to defend itself, and a default judgment was issued in March 2010 after a three-day evidentiary hearing.
     The D.C. Federal Court found in 2011 that Sudan “provided safe harbor, as well as financial, military and intelligence assistance, to al-Qaida,” Bates wrote, adding that the “Sudanese government support was critical to the success of the 1998 embassy bombings.”
     “Because this amounted to the provision of material support for acts of extrajudicial killing…Sudan was not entitled to immunity,” Bates said.
     Court-appointed special masters took several years to hammer out their cases, “during which time a number of events worth noting occurred,” the judge wrote.
     The November 2011 opinion was translated into Arabic and sent to Sudan through “diplomatic channels,” according to the March 23 ruling.
     Then, in 2012, two new sets of plaintiffs jumped in, referred to as the Aliganga plaintiffs, named after Marine Sgt. Jesse Nathanael Aliganga, who was killed in the Kenya bombing.
     Final judgments were issued in March 2014 for several billions of dollars.
     That woke Sudan up, which “at long last arrived on the scene” and appealed with new attorneys, court records show.
     The court held a consolidated motions hearing in December 2015 to discuss the matter, “mindful that these cases might impact foreign relations,” and urged the United States to file a statement of interest. However, the federal government declined to do so.
     Sudan wanted to vacate the judgments against it, but “shouldering that burden is Herculean task,” the judge wrote.
     “Consider first the length of the delay,” Bates wrote in the 75-page, March 23 ruling. “Even if one looks only at the most recently filed of these cases…Sudan did not enter an appearance until more than seventeen months after the complaint and summons had been served through diplomatic channels.”
     Extending any courtesy to the African nation would be “far too generous” in relation to the length of its delay because the nation “stopped being a responsible litigant.”
     “Sudan was well aware of these cases and yet did nothing,” Bates said.
     Sudan leaned on its “well-known civil unrest and political turmoil” and ignorance of American law to sidestep the litigation. It also tried to invoke sovereign immunity.
     But Bates wasn’t having it.
     “The court will not deny that Sudan has experienced serious turmoil over the past decade. Some of that turmoil, however, has been of the Sudanese government’s own making,” the judge wrote in Wednesday’s ruling.
     At minimum, the nation could’ve blamed the unrest for delays to respond, which “would have also probably led the court to forgive late filings.”
     “But Sudan was not merely a haphazard, inconsistent or sluggish litigant during the years in question – it was a complete and utter non-litigant,” Bates wrote.
     The judge continued: “The idea that the relevant Sudanese officials could not find the opportunity over a period of years to send so much as a single letter or email communicating Sudan’s desire but inability to participate in these cases is, quite literally, incredible.” (Emphasis in original.)
     “Sudan’s single, vague paragraph of explanation simply does not convince the court,” Bates added.
     The judge also wasn’t sold on Sudan’s argument that it didn’t know American law.
     “The fundamental-ignorance card cannot convincingly be played a second time, especially not after hiring sophisticated U.S. legal counsel,” he wrote.
     Bates said Sudan likely chose “to ignore these cases over the years, changing course only when the final judgments saddled it with massive liability.”
     Sudan’s efforts to vacate judgments against it would be a waste of time and money, the judge said.
     “Throwing half a ripe apple in the garbage may be less wasteful than tossing the whole thing, but wasteful it remains,” he wrote.
     The bottom line is that “Sudan has failed to carry its burden of showing that its failure to participate was the result of excusable neglect,” he added.
     “The court doubts that Sudan’s nonparticipation was a matter of neglect at all – as opposed to a matter of choice, whether well-considered or reckless,” Bates wrote. “But if indeed neglect, then that neglect – so complete and so enduring – was inexcusable.”
     The judge also had harsh words for the bombers.
     “No one can seriously doubt that that the bombers carefully planned their attack with the goal and expectation of killing those in and around the embassies,” he wrote. “No, they did not look their victims in the eye, nor could they have produced a list of names of those who would not perish, but their killings were nonetheless deliberated.”
     Looking at a different case over one of the embassy bombings Thursday, Bates noted that the terrorism exception to the Foreign Sovereign Immunities Act is generous but “not boundless.”
     “Because the families’ claims against Sudan are neither timely in their own right … nor timely by virtue of a related action … the court will dismiss them with prejudice,” he wrote.
     Bates did not address whether the families can sue Iran.

%d bloggers like this: