Opati v. Republic of Sudan (17-1268)

argument 17-1268

Opati v. Republic of Sudan

Supreme Court of the United States 1h 0m 4 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the historical background of Sudan’s involvement in terrorism and the U.S. response?

Michael McGill 0:00

We'll hear argument next in case seventeen twelve sixty eight, Opaty versus the Republic Republic of Sudan. Mr McGill. Mr Chief Justice, and may it please the Court. Sudan provided Al Qaeda with a safe haven and vital material support, enabling it to carry out the embassy bombings, killing two hundred twenty four people and wounding thousands more. In retaliation, President Clinton sent thirteen cruise missiles into Khartoum. But to impose punitive damages, Soudan argues, somehow would violate principles of fundamental fairness embodied in the land graft presumption. If fairness is the issue here, then Sudan surely should lose. The State Department had designated Sudan as a state sponsor of terrorism in nineteen ninety three.

Michael McGill 0:48

But Sudan continued to shelter Osama bin Laden, even as he issued fatwas calling for attacks on US interests. In nineteen ninety six, Congress enacted the Flayto Amendment, which explicitly provided for punitive damages for acts of state sponsored terrorism. But still Sudan continued to harbour Al Qaeda. Sudan had ample opportunity to conform its primary conduct to US law It just chose not to. That's not particularly surprising because Sudan is a foreign government, and foreign governments generally are not guided in their policy making by changes to US law. The central rationale underpinning the landgraft presumption simply is not applicable where the legislation is directed at foreign governments.

Michael McGill 1:38

But ultimately, this Court need not decide here whether Landgraff or Altman applies, because the first step in the analysis is to determine whether Congress has clearly defined the statute's temporal reach. Here it is abundantly clear that Congress intended punitive damages be available in two carefully defined categories of cases involving past acts of terrorism. In the subsection entitled Application to Pending Cases, Congress set forth two categories of cases prior actions and related actions, each of which were unmistakably directed at past acts of terrorism. Then the amendments say in section ten eighty three C one, the amendments made by this section shall apply to any claim arising under Section sixteen oh five A.

Michael McGill 2:34

Congress had said prior c prior actions and related actions could file under this new sixteen oh five A. And now Congress is saying the amendments made by this section shall apply to any of those claims. And Sudan concedes at page forty three of its brief that that meant all of the amendments in section nineteen eighty three apply to a claim arising under section sixteen oh five A. That language shall apply to uh to any claim is virtually identical to the language in footnote eight of Landgraff shall apply to all proceedings that that Landgraaff described as an unambiguous directive and that the Court later in Martin vs. Hadicks described as unambiguously addressing the temporal reach of the statute.

Samuel A. Alito 3:26

In a case involving private uh a private defendant rather than a sovereign nation. Are there constitutional limits on Congress's ability to make punitive damages retroactive?

Michael McGill 3:43

Yes, I think uh under this Court's decision, at least in BMW versus Gore, the Due Process Clause imports some idea of fair notice that would be applicable to persons, but foreign states are not persons within the meaning of the due process clause, just as states of the Union are not.

Samuel A. Alito 4:01

So if we just apply the landgraft tests, what would be wrong with saying if Congress wants to make punitive damages retroactive, it has to say so expressly. There is a magic words requirement.

Michael McGill 4:14

That would be inconsistent with the how the court looked at it in Landgraaff. The language in footnote eight of Landgraff just tr roped together compensatory and punitive damages. It actually it didn't even reference either specifically. It just said Section eight shall apply to all proceedings pending on the date of enactment. Section eight provided for compensatory damages and punitive damages. There was no magic words requirement applicable in Landgraf, and this Court recognized, but not not only in Landgraft, but later in Martin v.