WASHINGTON — The Supreme Court debated Wednesday whether to overturn a nearly $315 million judgment against Sudan stemming from the bombing of the USS Cole.
The question the justices are being asked to answer is where notice of the lawsuit against Sudan should have been mailed, to its embassy in Washington or its foreign ministry in the country's capital, Khartoum. It wasn't clear how the justices would rule.
The U.S. government has weighed in on the side of Sudan and against victims of the Cole bombing in October 2000 in which 17 sailors died and dozens of others were injured. In the case the justices were hearing, a group of injured sailors and several of their spouses sued Sudan in a U.S. court, arguing that Sudan had provided support to al-Qaida, which claimed responsibility for the attack in Yemen. Two sailors injured in the bombing and relatives of sailors who died watched the high court arguments Wednesday.
In order to alert Sudan to the lawsuit, the group mailed the required notice to Sudan's embassy in Washington, a little over a mile from the White House. Sudan never responded and a court entered an approximately $315 million judgment against the country. Sudan wants that judgment thrown out, arguing that notice of the lawsuit should have been sent overseas. The Trump administration agrees.
The case did not seem to be one that would split the court along typical ideological lines. Chief Justice John Roberts, Justice Samuel Alito and Justice Elena Kagan all seemed to approve of sending notice of the lawsuit to the embassy. Roberts said that his "first thought" if he wanted to send mail to a foreign official would be: "Why don't I deliver it to the embassy?" Kagan, meanwhile, told lawyer Christopher Curran, who was arguing on behalf of Sudan, that "everybody understands that embassies are supposed to be the point of contact if you want to do anything with respect to a foreign government."
But Erica Ross, arguing on behalf of the Trump administration, told the justices that the United States doesn't accept notice of lawsuits at its embassies abroad and that the United States has an interest in seeing foreign countries "brought into our courts only under the same circumstances that we ask abroad."
Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch and Brett Kavanaugh all seemed inclined to side with the United States and Sudan. Sotomayor said it seemed natural to notify a foreign minister of a lawsuit "where you're likely to find them," not at an embassy where they aren't regularly present.
U.S. law doesn't make clear what the right answer is. A 1976 law called the Foreign Sovereign Immunities Act lays out how to properly notify another country of a lawsuit filed in a U.S. court. If other agreements between the countries don't exist, the law says that notice should be "addressed and dispatched ... to the head of the ministry of foreign affairs of the foreign state concerned."
Lawyers for Sudan and for the U.S. government say the best reading of the law is that it requires the notice to be sent to the foreign minister in the foreign country. They also point out that an international treaty called the Vienna Convention on Diplomatic Relations, which the United States signed, has been interpreted as prohibiting notice of a lawsuit to be mailed to an embassy.
Kannon Shanmugam, who was arguing for the USS Cole victims, said ruling for Sudan would force his clients to start their lawsuit over.
After the arguments, Rick Harrison, who was injured in the attack, said the case has dragged on long enough and it "would be ridiculous" to start over again.
David Morales, who also was aboard the Cole when it was struck, attended arguments with a reminder of the bombing, a small piece of the ship's hull that he said he carries with him "everywhere I go."
The case is 16-1094, Republic of Sudan v. Harrison.