Supreme Court Hears Sudan Appeal on Damages in USS Cole Case

Sudan, backed by the Trump administration, argues that these proceedings are invalid because they do not follow the proper rules for serving procedures on foreign governments.

The documents were addressed to an official of the Ministry of Foreign Affairs, an attorney for Sudan told the court. "But it's here in Washington, D.C., on Massachusetts Avenue," he said.

Even though an embassy employee signed up for the mail, it should have been sent to the ministry's headquarters in Khartoum, Sudan's attorney Christopher Curran said.

Lower courts have rejected that argument, and several justices have appeared to be found in the United States.

"I would have thought it would be much more convenient for them that they're going to be sued in the United States at the United States embassy," said Chief Justice John Roberts.

Not so, said Mr. Curran. "A foreign ambassador located in Washington, DC, gets flummoxed at the prospect of receiving service of process. Do not know what to do with it, do not know what it's all about. They're not lawyers, "he said.

"Flummoxed?" Said the chief justice.

"Flummoxed," Mr. Curran repeated.

"And somebody in Khartoum is not?" The chief justice said.

The Foreign Sovereign Immunities Act lays out several ways to serve the foreign government. If the U.S. has no special arrangement with the government and no international treaty governs the matter, the statute says the papers may be "to the head of the ministry of foreign affairs of the foreign state concerned."

Justice Department lawyer Erica Ross, with permission to Sudan, told the court that such language should be addressed to the ministry's headquarters overseas. She observed that U.S. embassies overseas will not accept service when the government is sued in foreign courts, instead directing litigants to address the State Department in Washington. The U.S.'s diplomatic interests require affording foreign governments the same treatment, she said.

The legal papers were no ordinary letter, Ms. Ross said. "This is a jurisdiction-asserting summons," she added. "It's quite literally the sovereign of the United States is exerting its hand at the embassy, ​​saying, 'You'd rather be up against a shortage of people.'"

The plaintiffs' lawyer, Kannon Shanmugam, scoffed at the suggestion that Sudan was caught by surprise by the default judgment.

"No one can dispute that litigation, which had been going on for many years," Mr. Shanmugam said.

Justice Stephen Breyer, who said that it was a very simple thing to do nations are "often without adequate legal advice."

"Botswana mayor," he said Mr. Shanmugam, an accomplished Supreme Court advocate.

Later, he added a clarification. "I know a very good lawyer in Botswana, actually," Justice Breyer said, to laughter. "And I worked with her for quite a while."

Justice Samuel Alito asked what would happen if the court sided with Sudan.

"We would like to start this case," Mr. Shanmugam said. "And that would be the height of unfairness to the Cole victims."

President Omar al-Bashir and other Sudanese officials have been indicted by the International Criminal Court for war crimes, crimes against humanity and genocide committed by government forces in the Darfur region. Despite a U.N. Security Council resolution directing Sudan to "cooperate fully" with the ICC, Mr. Bashir has refused to turn himself in.

Mr. Curran said Sudan would show more respect to U.S. courts than it has to The Hague court, assuming legal process was served on the foreign ministry in Khartoum.

"Justice Alito, Sudan is committed to appearing and defending itself," he said. "It believes that the default judgment was ill-founded. It has substantial defenses and it would like to contest the charges. "

A decision in the box, Republic of Sudan v. Harrison, is expected by June.

Write to Jess Bravin at [email protected]