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Mwani v. Laden, 947 F.Supp.2d 1

Facts

The plaintiffs, Kenyan victims and family members of victims of the 1998 bombing of the American embassy in Nairobi, brought action against Usama Bin Laden and the terrorist organization responsible for the attack, as well as against Afghanistan for providing logistical support. The case was complicated by the need to determine the applicable substantive law and whether the court retained subject matter jurisdiction in light of recent Supreme Court rulings regarding the Alien Tort Statute (ATS). The court had to consider the implications of the Kiobel decision on the jurisdictional reach of the ATS.

The plaintiffs, Kenyan victims and family members of victims of the 1998 bombing of the American embassy in Nairobi, brought action against Usama Bin Laden and the terrorist organization responsible for the attack, as well as against Afghanistan for providing logistical support.

Issue

Whether the bombing of the American embassy in Nairobi, Kenya, 'touched and concerned' the United States with sufficient force to displace the presumption against extraterritorial application of the Alien Tort Statute (ATS).

The question before me today is whether the events that occurred in and around the grounds of the United States Embassy in Nairobi, Kenya on August 7, 1998, 'touched and concerned' the United States with 'sufficient force' to displace the presumption against extraterritorial application of the ATS.

Rule

The Alien Tort Statute (ATS) provides that district courts 'shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.' To establish jurisdiction under the ATS, a plaintiff must allege facts sufficient to establish that they are aliens, suing for a tort, and that the tort has been committed in violation of the law of nations or a treaty of the United States.

The ATS provides that district courts 'shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.'

Analysis

The court analyzed the facts of the case in light of the Supreme Court's ruling in Kiobel, which limited the extraterritorial reach of the ATS. It concluded that the bombing was directed at the United States government and its citizens, thus establishing a strong connection to U.S. interests. The court found that the events surrounding the bombing were not merely incidental to U.S. interests but were aimed at harming the U.S. and its diplomatic mission, thereby satisfying the 'touch and concern' test.

Ample evidence has been presented for me to conclude that the events at issue in this case were directed at the United States government, with the intention of harming this country and its citizens.

Conclusion

The court held that it had subject matter jurisdiction over the case under the ATS, as the bombing 'touched and concerned' the United States with sufficient force to displace the presumption against extraterritorial application. The court decided to certify this issue for appeal due to its significance and the potential for differing opinions among judges.

Accordingly, I find that this case touches and concerns the United States with sufficient force that it falls within the narrow category of cases for which the presumption against extraterritorial application of the ATS is displaced.

Who won?

The plaintiffs prevailed in establishing subject matter jurisdiction under the ATS, as the court found that the bombing had a sufficient connection to the United States, thus allowing their claims to proceed.

The plaintiffs prevailed in establishing subject matter jurisdiction under the ATS, as the court found that the bombing 'touched and concerned' the United States with sufficient force to displace the presumption against extraterritorial application.

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