In October 2000, Al Qaeda attacked the U.S.S. Cole while it was attempting to refuel in Yemen; 17 American sailors died and 39 more were injured. The United States may not have retaliated militarily at the time, but in a federal court in Norfolk, Virginia, the families of the victims are now suing… the government of Sudan, for $105 million. Sudan, claiming immunity, has refused to take part in the litigation; this likely means that the plaintiffs will prevail, because they have produced some evidence linking Sudan to the attacks:
“Sudan basically gave [al-Qaida] the breath of life it needed,” terrorism consultant and former journalist Douglas Farah testified in a videorecorded deposition. Sudan’s secretive Islamic banking system made it easy for al-Qaida to launder its money, Farah said. After U.N. sanctions squeezed Sudan in early 1992, he said, al-Qaida bought gold and conflict diamonds in Sierra Leone.
Sudan allowed al-Qaida to operate training camps where recruits from other nations were assembled, trained and returned to their own countries as sleeper cells, Vidino said. One such cell — a group of Yemenis trained in Sudan — carried out the Cole attack, he said.
After international pressure forced bin Laden to leave Sudan for Afghanistan in 1996, al-Qaida remained in Sudan — and remains today, Farah said. He said the explosives used to blow a hole in the Cole probably were transported by boat from Port Sudan to Aden across the Gulf of Aden, unexamined by customs officials. He said he could think of no other source for them.
In a videorecorded deposition, former CIA Director R. James Woolsey said Sudan’s involvement in the Cole bombing was “more likely than not” — the legal standard of proof in the civil lawsuit. Vidino and Farah said they did not believe al-Qaida could have attacked the Cole without Sudan’s help.
Now, to say the least, I certainly have no sympathy for the Sudanese government, let alone Al Qaeda. And the connection between Sudan and Al Qaeda is much closer than, for instance, the terrorism-related lawsuits against banks (covered on Overlawyered on Jan. 2006, Feb. 2006, and Oct. 2006.) And if the Sudanese government is to blame for an attack on a U.S. military vessel, I have no problem with seizing that country’s assets and retaliating militarily. But it seems that those ought to be political decisions, not legal ones. Shouldn’t our foreign policy be conducted by the president, the State Department and/or the military, not by a federal judge and some members of ATLA?
(By the way, according to the plaintiffs’ lawyer (you guessed it): “[M]oney has never really been the issue.” But you can’t blame activist lawyers or courts for this one; Congress has explicitly authorized these suits, by creating a “terrorist exception” to the standard rule of foreign government immunity from such lawsuits.)
Incidentally, the lawyer for the plaintiffs seems to specialize in cases such as these; he previously represented American hostages in a successful lawsuit against Iraq and American prisoners in a lawsuit against Libya.
6 Comments
I think the key distinction here, and the reason this is really problematic, is that this lawsuit is being brought in connection with an attack on military assets and personnel — and they weren’t even in the United States at the time. Quite an audacious jurisdiction grab both on personal and subject-matter jurisdiction grounds!
that court can never force payment of the multibillion dollar verdict anyway.
What are they going to do, order the country arrested and held hostage until it pays when it enters the US?
Diplomats and government officials have diplomatic immunity, holding other citizens for the purpose would be against international law.
Ron, the point you raise does make it odd: attacking a military (as opposed to civilian) target puts it out of the realm of traditional terrorism. The terrorism exception is odd to begin with; Sudan could have sent its military to attack the ship, and the sailors would have been out of luck. But because they assisted terrorists in attacking, this suit was allowed.
JTWenting: the U.S. government can’t seize diplomats, but it can seize assets of the Sudanese government held in U.S. financial institutions. Or if any US-based businesses owe money to the Sudanese government, the U.S. government can garnish that money, analogous to traditional wage garnishment.
David: Amendments to Foreign Sovereign Immunities Act in 1996, may permit such an action. In your narrow view defending lawyer rent seeking, and overlawyering, you forgot something.
How would you like the US nation subjected to litigation in the Sudanese court? What are their Rules of Civil Procedure, including post-verdict collection methods?
If the Moslem law hornbook, The Reliance of the Traveler, is an indication, those rules will be simpler, fairer, and lawyer less rent seeking promoting.
Yeah, I guess ultimately Sudan could pay a billion dollar judgment, say on a payment plan over like 46 years.
Leaving aside SC’s characteristic hyperbole, he has a point, which is that claims of extraterritorial jurisdiction can go both ways.