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SCOTUS To Hear Lawsuit Against Sudan On USS Cole Attack


18 years ago, al-Qaida suicide bombers attacked the USS Cole while it was refueling in a harbor in Yemen. Seventeen crew members were killed. Dozens were injured. The survivors and the families of the dead sued the government of Sudan for allegedly providing material support for that attack. Now the case is before the U.S. Supreme Court. And the Trump administration is siding with Sudan - long designated a state sponsor of terrorism and one of the few countries still on the Trump travel ban list. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: Lorrie Triplett emerged from the Supreme Court yesterday shaking. Her husband Andrew was killed in the Cole attack.

LORRIE TRIPLETT: I really wanted to scream while I was sitting there. But I knew I couldn't. This case has lingered so long, so long.

TOTENBERG: Tears on her cheeks, she remembered the last time she saw Andrew, riding his bike on his way to the ship.

TRIPLETT: And the last time that we seen him - never got his body back. Never - never seen him ever again.

TOTENBERG: The path for the lawsuits against Sudan has been long and difficult. And now to the consternation of the victims and veterans groups, the Trump administration is siding with Sudan, arguing that the $315 million in damages awarded to the victims in this case cannot stand. David Matthew Morales, one of the injured in the attack, carries a small piece of metal from the Cole attack in his pocket to remember his fallen shipmates.

DAVID MATTHEW MORALES: To see that our own country - siding with the country that harbors terrorists, it was very hurtful.

TOTENBERG: Jamal Gunn's brother was killed on the Cole.

JAMAL GUNN: We came here for accountability. And we just wouldn't expect that our own government would oppose their own citizens receiving justice and holding those accountable for a terrorist attack.

TOTENBERG: Rick Harrison, a firefighter and machinist on the Cole, was gravely injured in the attack.

RICK HARRISON: Our country, they should stand behind their soldiers and sailors that's out there every day putting their life on the line for the country.

TOTENBERG: The legal question before the Supreme Court is one that only a lawyer could love - whether the notification of the lawsuit was sent to the wrong address. It was sent by registered mail to the embassy of Sudan in Washington, D.C., addressed to the nation's foreign minister and signed 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 is supported not just by the Trump administration but also by Saudi Arabia, which faces lawsuits over the September 11 attacks.

They argue that to allow such notifications to be made at an embassy would breach the inviolability of embassies guaranteed under the Vienna Convention on Diplomatic Relations. The Trump administration 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 it's not had any difficulty enforcing that policy over a period of more than four decades.

Inside the court chamber, the justices appeared, at first, dismissive of Sudan's argument. Chief Justice Roberts - if I wanted to mail something to the head of a department in a foreign country, my first thought would be to deliver it to the embassy. Justice Samuel Alito opined that when he was on the Third Circuit Court of Appeals and his office was in Newark, N.J., mail meant for him was often sent first to the court headquarters in Philadelphia. 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's nothing in the record that answers that question. When the lawyer for the Cole victims, Kannon Shanmugam, rose to argue, Justice Kavanaugh asked him why the Cole plaintiffs couldn't serve notice of their suit through the State Department. Because, he replied, there's nothing in the law that requires that. What would be the consequence if we were to rule against you? asked Justice Alito. Shanmugam replied that the case would have to start all over again. And that, he said, would be particularly unfair because Sudan knew 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 its bank accounts in the U.S. to satisfy the judgment against it. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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.