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.

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.

"We are looking at a $1.5 to $2 billion lawsuit: One-third of it will go to these guys," says a US resident of Nairobi who has been following the matter closely.

"Naturally we are going to make high claims," Sterns says. "But that's on the principle that you don't necessarily get what you ask for."

Going to court is not the only way

Another attorney, Philip Musolino of Washington, has chosen to take the cases of more than 100 Kenyans injured in the blast straight to court."We have filed an administrative claim, which is different," Sterns points out.

Legal experts say that the difference in approaches will narrow with time. The government has six months to accept or reject the administrative claims filed in December, and already there are strong indications that the claims will be rejected.

"If the claims are denied, then we'll have to go to court," Sterns says.

For Kenyans like Nancy Kinuthia, the complexities and ramifications of both legal proceedings are meaningless. Not so the money she may collect one day. Says the mother of eight: "The American government should help me because I have children. It is not America's fault. It was not the wish of the US government to let so many people die." But, she adds in a soft whisper, "America is rich."

The legendary wealth Kenyans attribute to America is at the root of many claims filed through Burris, Sterns, and Mr. Herron.

"America is a wealthy nation, they are a superpower - that's why they should pay," says Joyce Kaendi, a cashier who worked in Cooperative House, a building adjacent to the embassy, and lost an eye in the blast. "If it were a country which had no money, we would not expect compensation."

None of more than 50 Kenyans interviewed was aware that the US Congress had set aside $37 million for them and that part of that money had already covered some of their medical expenses.

Similarly, the United States last week agreed to give $9.2 million to Tanzania to help it recover from the bombing of the US Embassy in Dar es Salaam, which took place in August almost simultaneously with the Nairobi bombing. Eleven people were killed and 85 injured. in Dar es Salaam. The assistance represents "a gesture of goodwill and our commitment to assist the Tanzanian people and this great country in its post-bombing recovery efforts," said US Ambassador to Tanzania Charles Stith.

In Kenya, Ms. Kaendi had facial plastic surgery performed at Kenyatta National Hospital but had no idea that the bill had been picked up jointly by the US Agency for International Development and the African Medical and Research Foundation, which has an office in Nairobi.

More significant, none of the injured knew that, if the suits were to go through, the aid money set aside by Congress would be frozen - on the elementary principle, says Burris, "that they can't collect twice."

"We believe that the $37 million will be offset by whatever each individual gets," adds Burris.

That may be true, observers say, but what of the time it would take for the legal dispute to be resolved? Interestingly, none of the people interviewed knew that it could take as much as 10 or 15 years to settle their case.

"We are not aware of that; we were told it would take two years," says Purity Kimathi, an accountant who was partially blinded in the explosion.

"These people don't need mountains of money 10 to 15 years down the road," says John Sparrow of the Federation of the Red Cross in Nairobi. "What they need is long-term assistance. Imagine what 10 to 15 years are in the life span of a child whose school fees are not being paid when they could have been [with money from the US Congress]."

'The way it's done in the States'

To that line of reasoning, Burris opposes this argument:

"In the face of 5,500 injured, $37 million is a drop in the bucket. This only proves that, when left to its own devices, the government will try to get away with as little as possible.

"It's our responsibility to push the envelope forward, to make a demand. That's the way it's done in the States.

"It's arrogant to say, 'You don't need an advocate, we will determine compensation for you.' If these were Americans or Europeans, they would not have been dismissed so easily."

Like Burris, Sterns believes the victims have an intrinsic right to compensation. Yet he admits that the precedent they may set might not be of the best sort: "Sure, too many lawyers, too many lawsuits, and the whole system collapses. We don't have an answer to that."