What Is the Significance of the SCOTUS Victory?
On May 18, 2020, the Supreme Court issued an unanimous decision, siding with victims against Sudan, ruling that “the plaintiffs proved Sudan’s role in the attacks and established their entitlement to compensatory and punitive damages.” Furthermore, this decision affirms the arguments made by the US Solicitor General before the Court that allowing Sudan to escape justice in this case would be harmful to US national security and foreign policy. The SCOTUS decision firmly establishes the rights of US victims of terror (both US citizens and foreign nationals working in service to the US) to hold state sponsors of terrorism accountable in US Court for their actions.
Why have State Department negotiators been working to help Sudan escape justice?
The US State Department recently briefed victims and Congress on a bizarre plan it has negotiated with Sudan—over the objections of victims and in violation of US law—to forcibly settle and dismiss all cases against Sudan to speed Sudan’s removal from the States Sponsor of Terrorism List. Rather than basing settlement amounts on severity of injuries or ensuring all victims are compensated equally as Libya had to do, the State Department is proposing allow Sudan to base payment amount on nation of birth and wipe out 99% of all damages owed to victims..
What Was Sudan’s Role in the 1998 Embassy Bombings?
Sudan funded, protected, and provided diplomatic passports to al Qaeda terrorists who attacked the American embassies in Kenya and Tanzania. This was proven in U.S. Court after more than a decade of litigation with the Government of Sudan, including a three-day bench trial with live and recorded testimony, expert witnesses, and documentary evidence, and multiple appeals by Sudan.
This careful and thorough Court process has established Sudan’s responsibility for the mass murder and injury of U.S. Government employees at the U.S. Embassies. U.S. Courts have ruled that Sudan played a “critical” role in the 1998 attacks and have ordered Sudan to pay compensation to U.S. embassy employees and their families.
The Supreme Court arguments on February 24 are not over Sudan’s role — which is a settled fact. The Supreme Court will decide whether, in addition to the compensatory damages Sudan already owes victims, Sudan will also have to pay the Court-ordered punitive damages for its role in these terrorist attacks.
Has Sudan Been Negotiating with Victims to Settle these claims?
There have been no negotiations, and Sudan has ignored offers of victims to begin talks about a settlement. Despite this, Sudan’s Prime Minister bragged to his local press after a visit to the United States in December of 2019 that he believed he was close to settling the claims by embassy bombing victims for a few pennies on the dollar.
Sudan’s public statements have led to speculation that the State Department may be exploring ways to settle these claims without direct participation from victims as part of its closed-door negotiations with Sudan around removal from the State Sponsors of Terrorism list. However, the State Department lacks the legal authority to settle all the judgments for U.S. and foreign national embassy employees, and U.S. government officials have said that Sudan’s Prime Minister misspoke.
The only option for Sudan to satisfy the current judgments and likely punitive fees that could be upheld by the Supreme Court is to negotiate a fair settlement with victims. Thus far, though, Sudan has not made any effort to do so.
What do Victims Hope For?
Sudan’s victims are looking for justice, closure, and the chance that the horror they experienced can contribute to a world where such acts of terror are less likely in the future. Already, over 20 U.S. employees who survived the initial attacks have died from complications related to their injuries as they awaited justice.
Victims are still waiting for the government of Sudan to apologize for its role in the attacks. So far, Sudan has paid American law firms to fight victims in court and refused offers to meet to discuss a fair settlement. Our hope is that after the Supreme Court arguments are completed, Sudan will recognize that the only path forward is to engage victims directly in talks about a fair settlement.
It is in America’s interests and Sudan’s for Sudan to reenter the family of law-abiding nations, and Sudan’s victims were all working in the American embassy because they hoped for a more peaceful and prosperous future for that part of the world. For Sudan to be reconciled to the world though, it must face the consequences of its actions and those it harmed to find a fair resolution to these Court-ordered judgments against it.
Can the new government in Sudan pay these judgments?
Sudan has a responsibility under the law to fully satisfy victim’s claims. The current power-sharing government of Sudan includes the same military that helped plan and carry out the 1998 embassy bombings.
Sudan has already spent substantial sums fighting victims in Court and on lobbying fees to try to get off the State Sponsors of Terrorism list. Furthermore, according to watchdog groups, an amount much greater than the judgment owed victims has been stolen and laundered out of the country by corrupt government officials in Sudan. Many of those officials still hold positions or authority in the current government and know where the embezzled funds have gone.
Sudan is an oil exporting country, and while its economy is currently hurting because of its past support for terrorism, once Sudan is removed from the State Sponsors of Terrorism (SST) list, Sudan will generate significant wealth from concessions on oil and mineral exports.
Even though Sudan has refused to enter into any negotiations with victims to settle the judgments against it, embassy victims have proposed a plan to allow Sudan to pay its claims interest-free over a number of years. Sudan has a number of options available to satisfy the judgments against it, especially with an extended timeline to pay:
Sudan can use guarantees against lucrative mineral and oil concessions that will come after Sudan’s removal from the SST,
Sudan can encourage banks and companies that supported Sudan’s terrorist activities to contribute to payments of its judgments in exchange for settling their own liability,
Sudan can identify and seize the billions of dollars that have been embezzled by government leaders still in the power-sharing government, or take a more proactive role in identifying funds stolen by the al-Bashir family,
There are also other state actors in the region with deeper pockets than Sudan and an interest in seeing Sudan reenter the family of law-abiding nations who could make loans or grants to help Sudan satisfy its judgments,
And if the Trump Administration really wants a deal and does not believe Sudan can pay what it owes to victims, it can encourage Congress to allocate seized and forfeited money from banks and others caught laundering money for terrorists to provide additional funds for victims without any cost to American taxpayers.