Justices Divided Over USS Cole Bombing Lawsuit Against Sudan

WASHINGTON (CN) – U.S. Supreme Court justices appeared divided Wednesday over an effort by Sudan to avoid paying more than $314 million in damages to American sailors injured in a 2000 bombing of the USS Cole, a Navy destroyer.

During oral arguments on Wednesday, Sudan contended that it was not properly notified of the lawsuit when the claims were delivered in 2010 to its embassy in Washington. It argues the claims should have been turned over to its minister of foreign affairs in the Sudanese capital Khartoum — as required by U.S. and international law.

The Trump administration has sided with Sudan, suggesting the cause could affect how the United States government is treated by foreign courts.

Fifteen sailors are seeking compensation for the injuries they sustained during the al-Qaeda bomb attack.

A federal judge in Washington, D.C. found that under the Foreign Sovereign Immunities Act, Sudan was liable for the bombing since it provided “material support” to al-Qaeda by allowing Osama bin Laden to live there for a time.

Whether Sudan had a direct role in the bombing – which it denies it did – was not what concerned justices Wednesday; instead, it was a portion of FSIA’s instructions on how foreign governments are served.

According to FSIA, one proper method is to have a court clerk submit the summons to the “head of the ministry of foreign affairs of the foreign states involved.”

The sailors addressed their complaint to the minister of foreign affairs at the Sudanese embassy in Washington, D.C. but after 60 days, Sudan never responded.

A default judgment of $314.7 million was awarded to the sailors.

When the award was registered at a federal court in New York, a Sudanese official claimed  no money was owed to the sailors because there wasn’t proper service.

White and Case attorney Chris Curran, arguing on behalf of Sudan, told justices FSIA is clear: service to an embassy isn’t sufficient.

“I think anyone who’s informed or looks into it would conclude that embassies are there to serve as diplomatic functions, not to be a catch-all recipient for service of process or other things being sent to the foreign state,” Curran said.

Chief Justice John Roberts challenged this assertion.

“I would have thought it would be much more convenient … to get notice that they’re [being] sued in the U.S. at the U.S. embassy,” Roberts said.

Curran pushed back, saying other inconveniences, like the  “skeleton staff” on hand at many embassies to receive mail also make default judgment unjust.

The service to an embassy violates provisions of the Vienna Convention on Diplomatic Relations too, he said.

Those rules specifically bar service by mail through a “diplomatic mission,” precisely what the embassy is, he argued.

The propriety of the sailors’ service grows even murkier, argued Erica Ross, assistant to the U.S. solicitor general, because the U.S. does not accept service by mail on its embassies abroad either.

“The U.S. informs the sender it doesn’t consider it proper under international law, we will not appear in court and we will not honor a default judgment,” she said.

Beyond a need to preserve embassy “inviolability” or the ability to remain free of foreign interference, Ross said if the court’s ruled against Sudan, it may one day entangle the U.S. in its own similar legal liability issues.

“Where the text is unclear … that you can’t serve on an embassy … if there’s ambiguity there, that’s where we think reciprocity interests should be brought to bear,” Ross said.

Kannon Shanmugam, arguing on behalf of the sailors, said Sudan’s interpretation of FSIA was incorrect and the claims of possible retaliation were overblown.

The statute says the “sole ways” the U.S. accepts service is through “diplomatic channels or through the Hague service convention,” he stressed.

If Congress wanted the legislation to mean service was only proper when documents are sent to a foreign minister in a foreign country, they would have expressly said that, he said.

On rebuttal, Curran suggested that the sailor’s award was “ill-founded.”

But Justice Samuel Alito interrupted him.

“Do you want to suggest the government of Sudan forgot about the Cole incident or didn’t realize this litigation was ongoing? It didn’t get notice?” Alito said.

The way the package was sent, the postal service records, these all called proper notice into question, Curran said but before he could continue, Justice Ruth Bader Ginsburg said.

“The question is did Sudan have actual notice and you’re not contesting that,” Ginsburg said.

Curran admitted he was not.

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