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Nairobi bombing litigants face long road to compensation

By Daniel Van Oudenaren

August 11, 2008 (WASHINGTON) — The case to implicate Sudan and Iran in the 1998 Nairobi embassy bombings, announced by a US legal firm on July 29, could benefit some 308 Kenyans – but even if the victims win the case, it likely will be years before they are compensated with seized Sudanese and Iranian assets.

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US Embassy in Nairobi after the attack of August 7, 1998

"In the latter part of the Clinton years and also the Bush years, there’s been a reluctance on the part of the US government to allow recovery in these lawsuits," said Jeffrey Addicott, the director of the Center for Terrorism Law at St. Mary’s University School of Law in Texas. "In the vast majority of cases the Bush administration has blocked recovery, through the Justice Department, of the plaintiffs getting at these assets."

Mann and Mairone, the legal firm representing the 308 Kenyans who were embassy employees or their families at the time of the attacks, filed two separate lawsuits August 5 and 6 in a Federal District Court in Washington, D.C., seeking a total of $40 billion.
"In a simple way, those profiting or financing terrorism should at least pay the victims monetary compensation for the damages caused by the terrorists," said Gavriel Mairone.

The case will be tried under a provision of the National Defense Authorization Act of 2008, which gives US courts jurisdiction in cases in which money damages are sought against a foreign state for supporting the killing or injury of US government employees in instances of torture, extrajudicial killing, aircraft sabotage, or hostage taking.

There were 32 Kenyan Foreign Service Nationals killed in the 1998 Nairobi bombing. 247 people were killed and 5,000 wounded in the Nairobi and Dar Es Salaam attacks. Mann and Mairone allege that the defendants — the Republic of Sudan, the Islamic Republic of Iran and various security organs of those states — gave "sanctuary, technical assistance, explosive devices and training" to al-Qaeda.

In court documents the attorneys lay out the basis for their case with facts tying the defendants to al-Qaeda in the period before the August 7, 1998 attacks on the US Embassies in Nairobi and Dar Es Salaam. The attorneys cite al-Qaeda weapons shipments through Port Sudan made under the supervision of the Sudanese military, and also meetings between al-Qaeda operative Mamdouh Mamud Salim and officials of Iran and the National Islamic Front (NIF) of Sudan.

The attorneys will also present evidence that Iran shared information with al-Qaeda on fabricating truck bombs, that Sudan sheltered bin Laden as he monitored and commanded the Nairobi terrorist cell, and that Sudanese intelligence officers established a "delegation office" to provide security for al-Qaeda and facilitate the movement of weapons in and out of Sudan.

Evidence for the case was assembled by Mann and Mairone’s counterterrorism research group, which focuses on exposing terrorist financing. The plaintiffs will also make use of evidence that emerged during earlier trials of al-Qaeda operatives, including the testimony of Jamal al-Fadl during the 2001 case of United States v. Usama Bin Laden.

If the defendants do not show up for the trial, it is likely that plaintiffs will win a default judgment, awarding the Kenyans the right to identify and seize Sudanese and Iranian assets that lie within US jurisdiction.

The first phases of this type of trial typically can move quickly, says Addicott.

Executing the judgment, however, could take years, since cases involving foreign states are liable to intervention from the Executive Branch. In the 2003 Acree case, for instance, a US Colonel who was tortured in the 1991 Gulf War won a suit against Iraq in a US District court, only to have the award overturned in 2004 by an appeals court citing "weighty foreign policy interests that are clearly threatened" by the original decision.

In cases of states with which the US has had a strained relationship, liked Sudan and Iran, diplomats prefer to hold frozen assets indefinitely as leverage, rather than hand them over to successful litigants. Administration officials are also generally worried about reciprocity, said Addicott, referring to the possibility that the Iran or Sudan could seize the property of US citizens or the government.

The US State Department designated Sudan a state sponsor of terrorism in 1993, placing it under government sanctions. Sudan has since mended its image, and many US officials have come to believe that Sudan became an important partner in counterterrorism efforts since as early as 2000, when it handed over information about Osama bin Laden.

Others lobbyists have cited commercial reasons for ending the sanctions. During a visit to Washington in June, Warwick Davies-Webb, the research director of Executive Research Associates, a South African consulting company, argued that US sanctions are ineffectual, restrict the oil revenue of South Sudan, and make the cost of doing business in South Sudan prohibitive.

Davies-Webb urged the Office of Foreign Asset Control in the US Treasury to allow US companies to do business in South Sudan.

Recent events, however, highlight Sudan’s controversial place in the State Department’s list of terrorism sponsors. Gulf News reported on July 8 that an Iraqi Interior Ministry Official, Major General Hussein Ali Kamal, and a source at Iraq’s Ministry of National Security, had evidence that al-Qaeda elements were relocating from Iraq to Sudan and Somalia.

In an April 2006 report the State Department cited Sudan’s role in contributing fighters for the Iraqi insurgency, along with concerns over continuing activity by the Ugandan Lord’s Resistance Army (LRA) insurgency.

The State Department designated the LRA a terrorist organization in December 2001 under the provisions of the USA Patriot Act. Sudanese support for the LRA began in March 1994 as part of an effort to constrict SPLA supply lines during a 1994 government offensive, prompting Uganda to cut relations with Sudan in 1995. Khartoum’s relationship with the LRA peaked in 1996, though the rebels received Sudanese government support until as late as 2006, according to Mareike Schomerus, who wrote a history of the group for Small Arms Survey in Geneva.

Ultimately, broader strategic considerations of policy-makers at the US State and Justice Departments could be a greater obstacle to the Kenyan plaintiffs than the actual adjudication of the case.

"These lawsuits were recognized by congress as important deterrence symbols against terrorist states or radical regimes ... I can’t understand why the Executive is standing in the way of recovery, because from a national security perspective, it’s a deterrence factor," Addicott told the Sudan Tribune.

The US raised the prospect of normalizing relations with Sudan in talks earlier this year, but suspended the dialogue on June 3 after failure to mediate an agreement over the Abyei region. The July 14 ICC indictment of Sudanese President Omar al-Bashir, along with the Nairobi case, are likely to be additional points of contention and leverage in future negotiations. US Special Envoy Richard Williamson will visit Khartoum this Friday.