Ruling on US Navy ship bombing in Yemen challenged in Supreme Court

Saudi Arabia, the UAE and Libya are asking the US Supreme Court to throw out a lower-court ruling against Sudan.
Friday 23/11/2018
A file photo showing a Yemeni police boat passing by the USS Cole as it is pulled out of Aden port in 2000. (AP)
A file photo showing a Yemeni police boat passing by the USS Cole as it is pulled out of Aden port in 2000. (AP)

WASHINGTON - Three Arab countries, with the backing of Washington, are urging the US Supreme Court to overturn a decision that orders Sudan to pay $315 million for deaths and injuries caused when terrorists bombed a US Navy ship docked in Yemen in 2000.

Saudi Arabia, Libya and the United Arab Emirates have joined with Sudan in asking the Supreme Court to throw out a lower-court ruling that held Sudan responsible for the bombing, which killed 17 US Navy personnel and injured another 42 US sailors.

The earlier court decision, issued in 2015, worries countries outside Sudan that may have exposure to claims that they were responsible for terrorist acts. In March, a US judge ruled that American plaintiffs could sue for billions of dollars in damages from Saudi Arabia over the September 11, 2001, terrorist attacks. Fifteen of the 19 people who hijacked the four aeroplanes were Saudis.

In an unusual twist, the administration of US President Donald Trump has joined Sudan and the three other countries urging that the 2015 court ruling be overturned. That puts the Trump administration, which forcefully denounces terrorists, in the position of opposing the 18 US citizens suing Sudan. Trump’s predecessor, Barack Obama, took the same position in earlier legal filings.

The lawsuit charges that Sudan was partly responsible for the attack on the USS Cole because the bombing was carried out by al-Qaeda while Sudan harboured the terrorist group. Al-Qaeda leader Osama bin Laden lived in Sudan for much of the 1990s.

The controversial lawsuit was filed in Washington in 2010 by a group of people who either survived the attack or were married to sailors who were killed in the attack. A judge ordered Sudan to pay $315 million, which included $236 million in punitive damages intended to punish Sudan for its actions and $78 million in compensatory damages.

The court found that Sudan gave al-Qaeda members diplomatic passports to facilitate their international travel and diplomatic pouches so they could carry weapons across borders undetected and that Sudan financed terrorist training camps inside its borders.

After a US appeals court upheld the decision in 2017, Sudan went to the US Supreme Court.

The legal issue has nothing to do with Sudan’s responsibility for the attack but centres on a seemingly technical question of whether the plaintiffs sent a notice of their lawsuit to the proper address for Sudan. The plaintiffs mailed the notice to Sudan’s embassy in Washington, addressing it to the nation’s foreign minister.

Sudan and the three Middle East countries say the address was improper because under US law and international treaty, embassies should never receive notifications that a country is being sued. The notifications should be sent to governments in their home countries, Sudan and the others say. Embassies and embassy personnel are generally immune from laws of the country in which they are stationed.

The United States is siding with Sudan because it fears that people around the world could send litigation notices to US embassies. Such a practice “threatens harm to the United States’ foreign relations,” the United States said in a brief filed with the Supreme Court.

Saudi Arabia, Libya and the UAE made similar points in briefs they filed with the Supreme Court. Libya said that when its US embassy received litigation notices after the bombing of Pan Am Flight 103 over Scotland in 1988, the notices “distracted diplomatic personnel from their official duties.” Libya settled claims against it for $1.5 billion in 2008.

During a hearing before the Supreme Court on November 7, Chief Justice John Roberts disputed the notion that it was improper to mail a litigation notice to an embassy. “The idea of mailing it to the foreign minister in some country and assuming it’s going to get there in any reasonable time, I think you’re much more likely to reach them through the embassy,” Roberts said.

Justice Elena Kagan appeared to agree with Roberts: “Everybody understands that embassies are supposed to be the point of contact if you want to do anything with respect to a foreign government,” she said.

The Supreme Court is expected to issue a ruling in the coming months.