The US Supreme Court appears open to reinstating $4.3 billion in punitive damages against Sudan accusing it of complicity in the 1998 al Qaeda bombings of embassies in Kenya and Tanzania that killed 224 people.
Eight justices heard arguments in an appeal – filed by people injured and relatives of people killed in the attacks – of a 2017 lower court ruling that blocked the plaintiffs from collecting punitive damages imposed against Sudan alongside about $6 billion in compensatory damages. Justice Brett Kavanaugh did not participate in the case.
The justices directed the bulk of their questioning toward an attorney representing Sudan as opposed to the plaintiffs. Conservative and liberal justices raised doubts over Sudan’s argument it could not be hit with punitive damages.
Sudan, riven by civil war and unrest, is trying to reduce its exposure in the litigation.
Twelve Americans were among the dead in the August, 1998, attacks, with thousands wounded. The lawsuits involve 567 people, most non-US citizens who were employees of government and their relatives.
Doreen Oport (58) who was working as an immigration assistant during the attack and suffered burns and other injuries expressed optimism following the arguments.
“We are waiting for justice,” Oport said.
President Donald Trump’s administration urged the justices to side with the plaintiffs.
Damages were imposed by default because for most of the litigation Sudan did not appear before a lower court to counter accusations it harboured and provided support to al Qaeda, which led to the bombings. Sudan denies the allegations.
The truck bombs that detonated outside the embassies in Nairobi and Dar es Salaam, Tanzania marked the first large-scale al Qaeda attack. Three years later, on September 11, 2001, al Qaeda operatives carried out attacks in the United States, killing nearly three thousand people.
Starting in 2001, groups of plaintiffs sued in federal court in Washington under the 1976 Foreign Sovereign Immunities Act, which generally bars claims against foreign countries except those designated as a state sponsor of terrorism, which Sudan has been since 1993. Other claims were made under local District of Columbia law.
A federal judge found Sudan liable and awarded the plaintiffs $10.2 billion, including $4.3 in punitive damages.
In 2017, the US Court of Appeals for the District of Columbia Circuit upheld Sudan’s liability, but ruled a 2008 change in the law allowing for punitive damages was enacted after the bombings and could not be applied retroactively.
During Monday’s arguments, some justices seemed sceptical that the 2008 change precluded such damages.
“If we agree compensatory damages apply retroactively, on what account does it make sense to speak of punitive damages not also applying retroactively, given it’s authorised by the same statute?” conservative Justice Neil Gorsuch asked.