(Reuters) - Well this could be awkward.
On Wednesday, Kannon Shanmugam of Williams & Connolly will appear at the U.S. Supreme Court to argue on behalf of victims of the horrific 2000 al Qaeda bombing of the warship U.S.S. Cole. In 2012, those victims – U.S. sailors injured in the attack and survivors of those who were killed – obtained a $315 million default judgment against the Republic of Sudan, which allegedly assisted al Qaeda operatives. The 2nd U.S. Circuit Court of Appeals affirmed the judgment in 2015. Sudan is claiming it was not properly served with the lawsuit. It is trying to force Shanmugam's clients to begin the entire litigation anew.
Opposing him and the Cole victims will be Sudan’s lawyer, Christopher Curran of White & Case, and Erica Ross of the U.S. Solicitor General’s office. Yes, that’s right: The Justice Department is siding with a state sponsor of terrorism in litigation against U.S. sailors and their survivors – a position that Shanmugam called “mind-boggling” in the sailors’ Supreme Court brief.
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It’s not unusual, of course, for the U.S. government to take a nuanced position in litigation involving foreign sovereigns, given its holistic view of foreign affairs. The Justice Department has to look beyond the facts of a particular case – even a case involving plaintiffs as sympathetic as American sailors victimized by al Qaeda – to protect U.S. interests around the world.
In the U.S.S. Cole case, the Supreme Court is considering the arcane question of whether the Foreign Sovereign Immunities Act permits plaintiffs to serve a foreign government by means of mail addressed to the country’s head of foreign affairs and sent via the foreign state’s diplomatic mission in the U.S.
The issue of whether the FSIA permits process service by mail to a foreign government's embassy or diplomatic mission has divided the 2nd and 4th Circuits in parallel cases pitting U.S.S. Cole sailors against Sudan, so it’s not an easy one to answer. And in arguing against service via mail to embassies, the Trump administration is not only reiterating long-held DOJ views – including in briefs backing Sudan at the 2nd and 4th Circuits – but also looking out for its own diplomatic corps, since the U.S. does not accept service of foreign court documents at our overseas embassies and missions.
But Shanmugam and the other lawyers representing Cole plaintiffs haven’t merely said the Justice Department is on the wrong side. They’ve said the solicitor general’s office engaged in “sloppy analysis,” disregarding or failing to uncover key history and case law that casts doubt on the government’s arguments against service via foreign embassies. In light of the contradictory authorities the government either ignored or omitted, the sailors’ brief said, the Justice Department’s decision to side with Sudan is “inexplicable and distressing.”
Those are unusually harsh words for a Supreme Court litigator to use about the solicitor general’s office. Shanmugam, who’s making four arguments at the Supreme Court this term, has to engage constantly with the SG’s office on behalf of his clients. When the Supreme Court asks the SG’s office for its views on a petition for certiorari the Justice Department typically meets with both sides before submitting a brief, although any meetings likely predated Williams & Connolly’s appearance in the case, which came after the Supreme Court granted review. Shanmugam has a strong interest, in other words, against alienating the DOJ.
So we have to assume he didn’t choose lightly to call the Justice Department’s legal analysis “sloppy” and its conclusion “dubious.” That criticism is all the more notable because Shanmugam came to Williams & Connolly from the SG’s office – and because Shanmugam was rumored in 2017 to be in the running for appointment as President Trump’s solicitor general. (Shanmugam has never confirmed those reports.)
I emailed the Justice Department to ask about the sailors’ very pointed brief. In response, a DOJ spokeswoman pointed me to the government’s Supreme Court brief, which said that the United States “deeply sympathizes with the extraordinary injuries suffered by respondents, and it condemns in the strongest possible terms the terrorist acts that caused those injuries,” but that the 2nd Circuit decision on service via mail to a foreign mission “contravenes the most natural reading of the statutory text, treaty obligations and the FSIA’s legislative history and … threatens harm to the United States’ foreign relations and its treatment in courts abroad.”
So how was the government purportedly “sloppy”? The Cole sailors’ brief faulted the Justice Department, among other things, for relying on a preliminary 1957 report from the Vienna Convention’s International Law Committee to back DOJ’s argument that the diplomatic treaty requires service to be delivered through the receiving sovereign’s ministry of foreign affairs. What DOJ and Sudan failed to mention, according to the Cole sailors’ brief, is that the 1957 report was not the Vienna Convention’s last word on the subject: The International Law Committee produced a final report in 1958 that said writs cannot be served within the premises of a diplomatic mission but deleted the statement that those writs must be delivered directly to the foreign ministry in the receiving state.
The sailors contend that service by mail to an embassy is thus permissible under the Vienna Convention. Their brief castigates the U.S. and Sudanese governments for their apparent ignorance of the 1958 commentary. Whether they were unaware of or deliberately disregarded the International Law Committee’s last word, the brief said, “their reliance on the obsolete and superseded 1957 commentary is patently improper.”
The sailors also accused the Justice Department and Sudan of failing to acknowledge an October 2017 ruling by the UK Supreme Court that concluded the Vienna Convention does not prohibit process service by mail to a diplomatic mission or embassy and of disregarding “entire swaths of academic commentary on the Vienna Convention.” Moreover, according to the sailors’ brief, the U.S. government’s policy justifications for siding with Sudan don’t add up. DOJ contends that it doesn’t want U.S. litigants to be able to serve foreign governments by mail to embassies because it doesn’t accept service at our own embassies and missions. But that argument would nullify the Foreign Sovereign Immunities Act’s process service provisions, the sailors said, because it doesn’t accept service in any manner contemplated in the FSIA.
It may well be that the justices chalk up the unusually sharp tone of the sailors’ DOJ criticism to the high emotions of this case. It’s entirely possible that Wednesday’s oral argument will turn on the statutory text of the FSIA without even reaching the Vienna Convention and legislative intent. But it’s not every day that the justices read a brief accusing the solicitor general’s office of sloppy legal analysis. I won’t be surprised if the government gets some questions about that 1958 report and the UK Supreme Court decision.