U.S. and Sudan Near Pact to Compensate American Terrorism Victims

The deal could pave the way for Sudan’s removal from the U.S. State Sponsors of Terrorism list.

By Robbie Gramer, a diplomacy and national security reporter at Foreign Policy, and Colum Lynch
Sudanese Prime Minister Abdalla Hamdok
Sudanese Prime Minister Abdalla Hamdok walks in Sudan's North Darfur state on Nov. 4, 2019. Ashraf Shazly/AFP via Getty Images

The Trump administration has reached an agreement in principle with Sudan’s new transitional government to settle a series of long-standing claims by American terrorism victims, laying the groundwork for the country’s removal from the U.S. list of states that sponsor terrorism, officials and congressional aides familiar with the matter told Foreign Policy.

The deal—which has yet to be finalized—requires Sudan’s fledgling civilian-led government to deposit $335 million in an escrow account for the families of victims of terrorist attacks that the former Sudanese regime played a role in supporting two decades ago. The attacks covered in the agreement are the 1998 embassy bombings in Kenya and Tanzania and the 2000 terrorist attack against the USS Cole. It would not address claims of families of victims of the 9/11 terrorist attacks in Washington and New York.  

If finalized, the arrangement would help restore Sudan’s standing in the international community and allow for outside investment and aid for the country’s ailing economy. It would also pave the way for further normalization of U.S. relations with Sudan and amount to a political victory for Sudanese Prime Minister Abdalla Hamdok, whose fragile transitional government faces mounting pressure since the 2019 revolution that ousted the longtime dictator Omar al-Bashir.  

U.S. Secretary of State Mike Pompeo met with Hamdok in Sudan on Tuesday to discuss Khartoum’s transition to democracy and efforts to remove the country from the State Sponsors of Terrorism list. The Trump administration has also quietly pressured Sudan to normalize relations with Israel, several U.S. officials told Foreign Policy, though Hamdok’s office said in a statement on Tuesday his transitional government did not have the authority to do so. The officials said such a move could help expedite the lifting of the terrorism designation, given the Trump administration’s close relationship with Israel. 

But officials in Washington caution that other significant hurdles remain before the deal can be finalized. The settlement proposal and directive to lift Sudan’s terrorism designation would have to be approved by Pompeo and then President Donald Trump before being sent to Congress for review. Lawmakers would have to agree to formally remove Sudan from the list of state terrorism sponsors and pass legislation that would restore the country’s sovereign immunity before U.S. courts.

The preliminary pact caps months of grueling legal and political discussions aimed at boosting the political prospects of Sudan’s civilian leader, Hamdok, who is leading the country’s difficult transition from decades of military dictatorship to civilian rule.  

One sticking point was how U.S. citizens versus foreign nationals would be compensated by the Sudanese government. In the two decades since the attacks, some foreign nationals have become U.S. citizens, raising questions on whether they should be compensated based on their current or former citizenship. 

The agreement calls on Sudan to pay up to $10 million for each U.S. government official killed in the U.S. Embassy bombings and $800,000 for foreign nationals who worked at the embassies and were killed, according to U.S. officials and congressional aides familiar with the matter. Americans injured in the attack could get anywhere from $3 million to $10 million in compensation, while foreign nationals injured would receive up to $400,000. 

This plan has already drawn sharp criticism from some families of foreign citizens injured or killed in the attack, who said the United States shouldn’t place a higher or lower value on the victims based on their country of birth. U.S. officials familiar with the negotiations countered that the State Department is following the precedent set by the claims agreements with Libya in 2008 during negotiations to lift the country from the terrorism list, though lawyers representing the victims who oppose the deal dispute that narrative.

A deal that defines American citizens not born in this country as ‘non-American’ and that values the lives of foreign national embassy employees at less than 10% that of the American colleagues they sacrificed themselves to save betrays everything we stand for as a nation, Doreen Oport, a former U.S. embassy employee and naturalized American citizen who was severely injured in the 1998 attack, told Foreign Policy  in an email statement.

Yet other victims and their family members, including Americans and Tanzanians, have asked Congress to support the agreement. “For more than two decades, we have waited for justice and accountability. We believe that the settlement agreement, while far from perfect, provides justice and accountability,” reads one letter to Congress signed by more than 80 family members. 

“The new government in Sudan has promise, but it is fragile. If Congress fails to act and pass this legislation this year, a real opportunity for justice for American families may be lost, possibly forever, as the negotiated agreement between Sudan and the United States would likely collapse,” the letter adds. “Please don’t let that happen.”

Meanwhile, some family members of 9/11 victims have pressed Congress in recent months to oppose the deal because it does not address their claims. 

“We want our day in court because we believe that Sudan (in addition to other nations like Saudi Arabia and Iran) played a key role in the 9/11 attacks,” read a note sent to congressional offices by family members and obtained by Foreign Policy. “Our State Department shouldn’t be destroying our legal rights to justice abroad particularly when those rights involve a State Sponsor of Terrorism like Sudan. In fact, the State Department should be our biggest proponent abroad, not pushing last minute sweetheart deals to prop up troubled foreign regimes that spent years targeting and killing innocent Americans.”

Some experts pushed back on the claims laid out by these families, saying there has not been enough evidence produced in the decades since 9/11 that would directly tie the former Sudanese regime to the attacks. 

The 9/11 Commission produced hundreds of thousands of documents, but “no smoking gun that pointed back to Khartoum. I think there is something of a fishing expedition [underway],” said Cameron Hudson, a senior fellow at the Atlantic Council who studies Sudan. “They would like to reopen these documents and pore through them looking for Sudan’s culpability.”

Hudson said lawyers of the 9/11 victims had nearly two decades to search the commission’s findings, but they “haven’t pursued this case until now. The problem is it could take absolutely years to pore through these documents and Sudan doesn’t have years.”

Sudan’s counsel, Nicole Erb of the law firm White & Case, confirmed to Foreign Policy that Khartoum and Washington “have reached an agreement in principle” to resolve the victim claims over the 1998 bombing of the U.S. embassies in Kenya and Tanzania, as well as the 2000 attack on the USS Cole

“This agreement would resolve the default judgments entered against Sudan in U.S. litigations concerning the 1998 Embassy bombings in Tanzania and the 2000 USS Cole attack,” she told Foreign Policy in an email. “Sudan’s transitional government inherited these default judgments from the prior regime, which had not appeared in the U.S. courts to defend Sudan against the claims against it.”

Erb said that while the claims by victims of the 9/11 attack are “not part of the ongoing bilateral claims settlement process, Sudan’s transitional government is fully committed to the U.S. judicial process and to litigating these cases in an adversarial context to clear Sudan’s name.”

“Sudan’s role in the attacks was proven during a 3-day bench trial in U.S. District Court, which was followed by a multi-year Court review of each individual’s loss to establish specific judgment amounts,” said Mike Miller, attorney for a large group of embassy bombing victims, in an email response. “The Supreme Court summarized the entire process well in their unanimous judgment against Sudan: ‘After more than a dec­ade of motions practice, intervening legislative amend­ments, and a trial, the plaintiffs proved Sudan’s role in the attacks and established their entitlement to compensatory and punitive damages.’”

The U.S. relationship with Sudan, which hosted terrorist leaders from Carlos the Jackal to Osama bin Laden, has been complicated for decades. 

In 1993, Washington placed Sudan on its list of state sponsors of terrorists, alongside Libya, North Korea, and other countries. Five years later, President Bill Clinton ordered a U.S. cruise missile attack against al Qaeda bases in Afghanistan and the al-Shifa pharmaceutical factory in Khartoum in retaliation for al Qaeda’s Aug. 7 bombing of U.S. embassies in Kenya and Tanzania, which killed 224 people, including 12 Americans. 

Following the 9/11 attacks, Sudan feared U.S. military retaliation and scaled back its support for terrorist organizations. In recent years, beginning under Bashir, Sudan stepped up counterterrorism cooperation with Washington, which continues to this day, U.S. officials say.

But the relationship remained strained as Washington led negotiations that split Sudan into two countries, ushering in the independence of South Sudan in 2011. Bashir’s regime also orchestrated the mass slaughter of hundreds of thousands of Sudanese citizens in the country’s western region of Darfur, which resulted in an indictment against Bashir in the International Criminal Court on charges of genocide.

The new transitional Sudanese government includes civilian leaders such as Hamdok, as well as members of the country’s powerful security services who were implicated in crimes in Darfur. Gen. Mohamed Hamdan “Hemeti” Dagalo, who once ran the janjaweed militias that carried out widespread atrocities in Darfur, is considered the most powerful member of the transitional government.

Senior Trump administration officials said they hope to finally settle the decades-old claims against Sudan and help cement democratic reforms in the country.

Pompeo, testifying before the Senate Foreign Relations Committee earlier this month, said the new government in Sudan presents “an opportunity that doesn’t come along often.” 

“I think lifting the state sponsor of terrorism designation there if we can … take care of the victims of those tragedies would be a good thing for American foreign policy,”  he said. 

Both countries have taken steps to thaw relations in recent months. Sudan this year appointed its first full-fledged ambassador to the United States in over two decades.

Lifting the terrorism designation would allow for more diplomatic and economic ties between Sudan and the rest of the world, and open the door to private investment and assistance programs from the World Bank, the International Monetary Fund, and other institutions.

It remains unclear how Sudan, which is in dire financial straits, would finance the settlement. Khartoum has been rife with rumors about support from wealthy Persian Gulf countries—or the possibility that Sudan would sell its gold reserves to raise the money. But officials familiar with the negotiations said those options were unlikely. 

Update, Aug. 27, 2020: This article was updated to include comments from Doreen Oport, a U.S. embassy employee injured in the embassy bombings and Mike Miller, an attorney for embassy bombing victims.

Robbie Gramer is a diplomacy and national security reporter at Foreign Policy. Twitter: @RobbieGramer

Colum Lynch is a senior staff writer at Foreign Policy. Twitter: @columlynch