US lawyers make clients of embassy bomb victims
One day in February, Nancy Wanjiku Kinuthia was given some forms to fill out. Her husband, a clerk in a state pension fund, had been one of 213 people killed six months earlier in the terrorist attack against the US Embassy.Skip to next paragraph
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The forms asked Ms. Kinuthia to identify herself and quantify her loss.
Had she lost the ability to support herself?
Was she injured, psychologically damaged, restricted in her activities?
Did she have children, dependent relatives? Had she lost land or property?
Did she have other sources of income?
All the form-filling seemed like a waste of time to Kinuthia, who had eight children waiting at home. But then and there she received a pointed word of caution from her husband's employers:
The forms were important.
They had been put together by lawyers in America who planned to sue the US government on behalf of each and every Kenyan who was harmed in the bomb blast.
She had not suffered physical injuries herself, but she had lost her husband and had a legitimate claim to compensation, she was told.
State Department review
The legitimacy of Kinuthia's claim - which was filed jointly by three law firms in California - is now being reviewed by lawyers at the State Department.
Roughly 2,500 more claims are expected to follow, lending heft to a dispute that could expand the confines of tort litigation in America and make the US government susceptible to further probes in cases of international terrorism.
"At the end of the day, the entire injured population in the blast, all 5,500, will sue the US government," says Caesar Ngige Wanjao, a Kenyan attorney involved in the suit.
The case brought against the US government is a simple one of negligence: The embassy was deemed unsafe with respect to its location, its security standards, and its communication system, yet the government, the lawyers have argued, failed to take appropriate action.
"It was a terrorist attack waiting to happen," says John Burris, a high-profile civil-action lawyer whose list of clients includes Rodney King, known through the videotape of his beating by Los Angeles police, and the late rap star Tupac Shakur. It was Mr. Burris's idea to seek compensation for all injured Kenyans.
"The government has a moral and legal obligation to compensate the victims of its own negligence," he says.
The Federal Tort Claims Act under which the claims were filed says exactly the opposite, stating that the government is not liable for accidents, including terrorist acts, to its facilities overseas.
For negligence to be of any relevance under the tort act, it would have to be traced back to America first, then linked to a breach in "ministerial" or administrative rules rather than to a discretionary decision taken under the discretionary immunity that covers all high-ranking government officials.
The principle of discretionary immunity was reaffirmed by a ruling on the 1988 Lockerbie bombing of Pan Am Flight 103 over Scotland. The US government was sued for having failed to pass on intelligence that might have prevented the attack, but the case was quickly thrown out on the grounds that it had been a discretionary decision.
Similarly, says George Sterns, one of the California lawyers working on the case, "[US Secretary of State Madeleine Albright cannot be held responsible for having failed to send money to transfer the embassy [in response to warnings]; that was an absolutely discretionary function."
Rules to be followed
But, Mr. Sterns adds, "there are ministerial rules, things such as training of security staff, the positioning of the perimeter fence around the embassy, and so on - rules that should have been followed and weren't."
No effort is being spared to find the rules that were not followed. But the San Francisco-based lawyers are also exploring another possibility, one that would leave negligence and tort out of the equation altogether by holding the government to a provision of the Foreign Claims Act.
This provision says that "meritorious claims" by individuals who have been injured in tragedies "incident to the noncombat activities of the government of the United States" should be honored to promote friendly relations abroad.
Such "administrative claims" have recently been filed with the Departments of State, Justice, and Defense, by Burris, Sterns, and a third lawyer, Wynne Herron.
"We are filing for a minimum of $250,000 to a maximum of $1.5 million," Burris says. Considering that the average income in Kenya is $300 a year, critics say the claims are inflated beyond reason.