It has been nearly 18 years since terrorists bombed the USS Cole while it was in port in Yemen, killing 17 U.S. service members and injuring 42 more. Yesterday the U.S. government recommended that the Supreme Court tackle a legal question arising out of efforts to hold the government of Sudan responsible for its role in the bombing – specifically, whether the plaintiffs in the case, who are service members injured in the bombing and their families, gave the Sudanese government proper notice of their lawsuit.
The Foreign Sovereign Immunities Act is a federal law that generally bars lawsuits against foreign countries in U.S. courts. It contains an exception (among others), however, for countries – like Sudan – that have been designated as state sponsors of terrorism. The FSIA also specifies how, when lawsuits are permissible, the foreign governments should be served with the complaint against them. Republic of Sudan v. Harrison centers on the third of four possible methods of service, which instructs the plaintiffs in a case have the complaint and a translation sent “by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.”
In Harrison, the plaintiffs asked the clerk of the federal court where they filed their complaint to send it to the Sudanese minister of foreign affairs, in care of the Sudanese embassy in Washington. They eventually won a default judgment of over $300 million against Sudan, and they argued that their service passed muster under the FSIA. The U.S. Court of Appeals for the 2nd Circuit agreed, and the Sudanese government asked the Supreme Court to review that ruling. The justices asked the U.S. government for its views last fall, and yesterday it weighed in.
In a brief signed by U.S. solicitor general Noel Francisco, the federal government began by sympathizing “with the extraordinary injuries suffered by” the service members, and it condemned “in the strongest possible terms the terrorist acts that caused those injuries.” It nonetheless told the justices that the 2nd Circuit’s ruling was wrong: The FSIA, its history, and the U.S.’s obligations under international treaties all indicate that the complaint must be sent to the ministry of foreign affairs in the foreign country’s seat of government – here, Khartoum.
The government recommended, however, that the justices take up the legal question presented in Harrison in another case arising out of the USS Cole bombing, Kumar v. Republic of Sudan. In that case, the U.S. Court of Appeals for the 4th Circuit agreed with Sudan and the federal government that serving the foreign ministry by mail at its embassy in Washington does not satisfy the FSIA. The government suggested that Kumar is a more appropriate case for the justices to review because Harrison could, for other reasons, become moot while the case is pending at the Supreme Court.
The petition in Kumar was distributed to the justices in late April for the May 10 conference, but it was rescheduled before that conference took place – presumably (although there is no way to know) to wait for the solicitor general’s brief in Harrison. The justices will likely announce whether they will review either Kumar or Harrison (or both) before their summer recess.
