The Trump administration has sided with the brutally repressive country of Sudan — and against American terrorist attack victims — in a lawsuit currently before the Supreme Court, angering victims and veterans groups.
The case centers on the bombing of USS Cole, an American warship, by al-Qaeda on October 12, 2000. The ship was docked in Yemen to refuel when suicide bombers in a small, explosive-filled boat attacked it, killing 17 American sailors and injuring 39 others. It was one of the deadlier and more brutal attacks by al-Qaeda at the time but was soon overshadowed when planes struck the World Trade Center and Pentagon less than a year later on 9/11.
In 2010, victims of the USS Cole attack and their spouses filed a federal lawsuit against the Northeast African country of Sudan, arguing that it had provided support to the terrorists who conducted the attack — an allegation the country denies.
Sudan’s Islamist government worked closely with Osama bin Laden and al-Qaeda in the early 1990s, providing the group with a safe haven and other support, but eventually out kicked bin Laden and his organization in 1996 — several years before the Cole attack. Yet the victims argue that the group couldn’t have carried out that attack without the support it had received from the Sudanese government for years.
“Sudan’s material support … including continuous flow of funding, money, weapons, logistical support, diplomatic passports and religious blessing, was crucial in enabling the attack on the USS Cole,” lawyers for the families said in court papers outlining their case.
In 2012, a US District Court judged in the USS Cole victims’ favor, ordering Sudan to award them $315 million.
But then things got complicated. Sudan appealed the decision, saying its government wasn’t properly notified of the lawsuit. And here’s why: The USS Cole victims sent their federal lawsuit to Sudan’s embassy in Washington, not its foreign ministry in Khartoum, the country’s capital. In effect, Sudan said the lawsuit wasn’t valid because it was sent to the wrong address.
That led to a Supreme Court hearing on Wednesday, where lawyers for both the American victims and the Sudanese government made their cases. Sudan, though, has found itself with a surprising ally in the lawsuit: the Trump administration.
And guess what? They could win.
The case is about where to send a lawsuit to a foreign country. Seriously.
The fuss over the address on the lawsuit’s envelope has to do with longstanding international law.
Two statutes are the most important here. First, there’s a 1961 international treaty known as the Vienna Convention on Diplomatic Relations. The US has signed on to the agreement, and lawyers for both Sudan and the US say it prohibits people from sending lawsuits to a country’s embassy because it would threaten the mission’s “inviolability.”
In other words, a country’s diplomats, embassies, and diplomatic residences aren’t subject to the laws of the foreign countries where they’re stationed, but rather to the laws of their home countries.
The second — and the one that’s mainly at issue in this Supreme Court case — is a US law, the 1976 Foreign Sovereign Immunities Act. It says if a plaintiff wants to notify a foreign government of a lawsuit by mail, it must be “addressed and dispatched ... to the head of the ministry of foreign affairs of the foreign state concerned.”
Those laws, the US and Sudan argued in front of the Supreme Court, indicate that Khartoum was improperly served with the lawsuit — and therefore, the justices should overturn the previous ruling in the victims’ favor.
If you think Washington and Khartoum’s case is silly, that’s not entirely true, three lawyers at the US-based international law firm Steptoe & Johnson wrote in January.
“While the rules of service of process on a foreign sovereign may seem arcane and technical, they must be navigated carefully in any US lawsuit involving foreign governments, regardless of the merits of the underlying dispute,” Michael Baratz, Steven Davidson, and Brian Egan wrote. “Otherwise, a plaintiff risks dismissal on procedural grounds that are avoidable.”
The Sudanese Embassy and the White House did not respond to Vox’s multiple requests for comment. The US Department of Justice said it had no comment.
Kannon Shanmugam, the victims’ lawyer, who declined an interview for this article, told the nine justices they have already spent years litigating this matter. Overturning the previous win would require them to restart the judicial process after waiting so long.
Plus, he argued, Sudan’s civil war has made it hard to find anyone who would go all the way to Khartoum to deliver the lawsuit, and it was also reasonable to assume the embassy would send the notice to where it needed to go.
It’s unclear which way the Supreme Court justices will rule based on yesterday’s hearings. Right-leaning Chief Justice John Roberts and left-leaning Justice Elena Kagan seem to agree that sending the lawsuit papers to the embassy was permissible. Meanwhile, the newest justice — conservative Brett Kavanaugh — and liberal Justice Stephen Breyer both appeared to believe the documents should’ve been addressed to Sudan’s foreign ministry.
Why the US is on Sudan’s side
Assistant Solicitor General Erica Ross, the Justice Department’s lawyer for the Supreme Court hearing, made it pretty clear why America is backing Sudan and not US victims of a heinous terrorist attack: The US wants lawsuits against it from other countries “brought into our courts only under the same circumstances that we ask abroad,” she told the justices.
In other words, the US doesn’t like that a lawsuit was sent to Sudan’s embassy in Washington because then others may drop legal papers at America’s hundreds of missions abroad. That would almost certainly make it easier for people around the world to sue the US.
So the Trump administration is siding with a repressive government in order to protect itself from future legal trouble. That’s by no means a moral stance, but it is a very self-interested one. And the US has legitimate worries here.
For example, the US military is helping Saudi Arabia commit war crimes in its war in Yemen. The US has also placed sanctions on Iran that make it harder for everyday Iranian citizens to obtain food, water, and medicine.
If Yemenis or Iranians wanted to sue the US government over those actions, it’d be harder to send a full legal document to the appropriate people in the State Department than it would be to just drop it off at an American embassy in or near their countries.
It therefore makes cold, calculating sense for the US to side with Sudan in this lawsuit. That, of course, doesn’t make the victims and families of the USS Cole attack any less angry.
“Our own country, siding with the country that harbors terrorists,” David Matthew Morales, who was injured on the ship, told reporters on Wednesday. “It was very hurtful.” He carries a small piece of a metal blown loose from USS Cole with him wherever he goes.
Updated to include Justice Department’s response that it had no comment after publication.