Sudan and the USS Cole

USS Cole FIle Photo

Can you sue a country, via mail? The U.S. Supreme Court considers this question on 7 November 2018, as it revisits the USS Cole bombing (Republic of Sudan v. Harrison No. 16-1094).

On 12 October 2000, the USS Cole ship was bombed while refueling in Yemenleading to the deaths of 17 and injuries of 42 American sailors. Last week, the U.S. Supreme Court heard a lawsuitfiled by service members who were injured that dayseeking to hold the government of Sudan responsible for supporting al Quaeda operatives. The question facing the justices is a procedural one: whether the plaintiffs gave the Sudanese government proper notice of their lawsuit, when they mailed their complaint to the Sudanese Embassy in Washington D.C.

The plaintiffs filed their lawsuit under the Foreign Sovereign Immunities Act (FSIA), which bars lawsuits against foreign nations via U.S. Courts except in instances of state-sponsored terrorism. To serve a complaint under this Act, the plaintiffs sent summons and complaint to the Sudanese Ministry of Foreign Affairs in Washington; after 60 days, Washington entered into a default judgment of + $300,000 against the Sudanese government. Sudan has now appealed to the U.S. Supreme Court.

Sudan argued that the summons and complaint must be sent to the minister’s address, i.e. to Ministry of Foreign Affairs in Khartoum. Furthermore, Sudan argued that the FSIA requires a signed receipt when summons and complaint are sent via mail, to ensure that they actually reach the minister. The plaintiffs counter by affirming that the Section 1608(a)(3) of the FSIA merely requires the summons and complaint to be “addressed” and “dispatched” to the foreign minister—FSIA never specified the specific location for the package to be sent.

The federal government found itself in an uncomfortable position. A decision for Harrison would compensate victims of terrorist attacks. However, a ruling for the plaintiffs could also cause international friction, by requiring foreign countries to appear in U.S. Courts even if they believe they were not properly served. Thus, the government filed an amicus curae brief that sympathized with the plaintiffs but sided with Sudan, to protect the United States as a foreign litigant since the ruling could prompt foreign nations to apply reciprocal treatment.

Towards the end of the hearing, the question arose of whether Sudan had actually failed to learn about the lawsuit in time, or whether it used the service question to evade judgment. An employee at the embassy knew about the motion before it entered into default judgment. Due to this key revelation towards the end of the hearing, it remains unclear how the Justices will rule.

This blog post was written by a CCLA-PBSC Rights Watch student.  Views expressed do not necessarily reflect the views of the CCLA or PBSC.