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Trump Administration Sides With Sudan Against USS Cole Survivors In Lawsuit

Rick Harrison (from left) was a firefighter and machinist on the USS Cole, and David Morales was a boatswain's mate. Lorrie Triplett, Jamal Gunn and David Francis all lost family members who worked aboard the Cole.
William Conlon
Rick Harrison (from left) was a firefighter and machinist on the USS Cole, and David Morales was a boatswain's mate. Lorrie Triplett, Jamal Gunn and David Francis all lost family members who worked aboard the Cole.

Eighteen years ago, Lorrie Triplett's husband, Ensign Andrew Triplett, rode off on his bike to board the destroyer USS Cole, heading for the Persian Gulf. It was the last time she would see him. On Wednesday, she sat in the U.S. Supreme Court and "really wanted to scream."

Her husband was among 17 killed in 2000 when al-Qaida suicide bombers in a small boat attacked the Cole while it was refueling in a harbor in Yemen. Dozens more men and women were injured. They and the families of the dead sued the government of Sudan for allegedly providing material support for the attack.

Their path for this and similar suits has been long and difficult, and now, to the consternation of the victims and veterans groups, the Trump administration is siding with Sudan, long designated a state sponsor of terrorism.

Sorry, wrong address

The government argues that the $315 million in damages awarded to the victims in the case cannot stand. The legal question is one that only a lawyer could love, but not the people whose lives have been affected. The question is whether the notification of the lawsuit was sent to the wrong address.

The notice was sent by registered mail to the Embassy of Sudan in Washington, D.C., addressed to the nation's foreign minister and signed for by someone at the embassy.

Sudan contends that under U.S. law and international treaty, the notice should have been sent to the Foreign Ministry in the Sudanese capital of Khartoum. That position was supported by the Obama administration in 2015, at an earlier stage of the litigation. Now, at the Supreme Court, it is also supported by Saudi Arabia, which faces similar lawsuits over the Sept. 11 attacks.

The argument is that to allow such notifications to be made at an embassy would breach the "inviolability" of embassies and consulates that is guaranteed under the Vienna Convention on Diplomatic Relations.

The government argues as well that if Sudan and other countries can be served notice of lawsuits at embassies, the U.S. could suffer a similar fate at its embassies.

But lawyers for the Cole victims counter that the U.S. has a firm policy of never accepting such legal service at its embassies and that the U.S. has not had any difficulty enforcing that policy over a period of more than four decades.

On Wednesday, when the case was argued, a grim group of Cole survivors and relatives of the dead sat in the chamber.

Tears and anger

Lorrie Triplett, the widow of Ensign Triplett, was shaking when she emerged. Tears poured down her face as she talked about her loss and that of her daughters. Even today, she said, she cannot believe "how drastic" the effect has been on her life. "Never got his body back," she said softly. "Never. Never seen him ever again."

The men who stood next to Triplett were angry. "Our own country, siding with the country that harbors terrorists," said David Matthew Morales, who was injured on the Cole. "It was very hurtful," he added, pulling a small piece of metal out of his pocket. It was from the hull of the Cole, and he carries it with him everywhere.

"We came here for accountability, and we wouldn't expect our government to oppose its citizens receiving justice and holding those accountable for a terrorist attack," said Jamal Gunn, whose brother was killed on the Cole.

"Our country should stand behind their soldiers and sailors that's out there every day putting their life on the line for the country," said Rick Harrison, a firefighter and machinist injured on the Cole.

"You can look at 9/11. They got justice. ... So why can't the USS Cole get justice?" asked David Francis, whose sister was killed on the Cole.

The justices pile on

Inside the court chamber, the justices appeared at first dismissive of Sudan's argument.

"If I wanted to mail something" to the head of a department in a foreign country, said Chief Justice John Roberts, "my first thought" would be to deliver it to the embassy.

Justice Samuel Alito opined that when he was on the 3rd Circuit Court of Appeals, and his office was in Newark, N.J., mail meant for him was often sent to the court headquarters in Philadelphia, and then forwarded to him.

"Everybody understands," said Justice Elena Kagan, that embassies are "the point of contact if you want to do anything with respect to a foreign government."

What did happen with this notice, asked Justice Ruth Bader Ginsburg. Was it forwarded to the foreign minister?

Lawyer Christopher Curran, representing Sudan, replied that there is nothing in the record that answers that question.

Arguing for the Trump administration in support of Sudan, Assistant Solicitor General Erica Ross took a bunch of hits from the justices too.

Chief Justice Roberts observed that the government in its brief argued that foreign nations would be "affronted" by having notifications sent to the embassy. "I understand the idea that they don't want police officers coming and knocking on the door" with a search warrant, he said. But "it's hard to imagine" being affronted by getting a letter in the mail.

Ross replied that this isn't an "ordinary letter." It is "quite literally the sovereign of the United States sort of exerting its hand into the embassy and saying, 'You better show up in court or we are going to enter' " a judgment against you. A default judgment can occur when, as in this case, one party does not respond to notice that it is being sued.

Indeed, the government of Sudan did not appear in court at any stage in this case, until lawyers for the Cole victims actually sought to enforce the judgment against Sudan through its bank accounts in New York. At that point, Sudan did show up, finally appealing to the Supreme Court.

Lawyer Kannon Shanmugam, representing the Cole victims, replied that Sudan could have but did not come in and object to the default judgment after it was entered; moreover, he said, Sudan has been plagued by civil war, and in the past, it has been very difficult to find anyone willing to bring a notification packet to the Foreign Ministry.

Several justices, however, indicated some hesitation about how to carve out a rule that allows lawsuit notifications to be served through an embassy but not at a country's consulates, trade missions or U.N. mission. And Justice Brett Kavanaugh asked what would be such a "big deal" about getting the U.S. State Department to serve the notification in Khartoum, a method that is provided for by statute.

"What would be the consequences" if we were to rule against you, asked Justice Alito.

Shamnugam replied that the case would have to "start all over again" and that, he said, would be particularly unfair because Sudan knew all along it was being sued and didn't file any objection until the "very last minute" in response to orders that it turn over money from bank accounts in the U.S.

Editor's note on Nov. 15: This story has been updated to note that the Obama administration also supported the position that the notice about the lawsuit should have been sent to the Foreign Ministry in the Sudanese capital of Khartoum.

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Corrected: November 7, 2018 at 9:00 PM PST
An earlier version of this story said Sudan was currently among the countries on the Trump administration's travel ban list. While it was originally on the list, the country was dropped in a revised version.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.