Last fall, I posted “FSIA Service… it’s really not that difficult” following several very poorly titled articles describing the Trump Administration’s support of a foreign government’s argument in a sovereign immunity case. Sudan had asserted that service on its Embassy in Washington was not appropriate under the Foreign Sovereign Immunities Act, and the Department of Justice weighed in on Sudan’s side. The outrage from both left and right irked the hell out of me. But the knee-jerk, non-lawyer reaction from the left– my own people, for crying out loud– really set my teeth on edge. Yesterday, logic won.
Not to brag, but I picked the tally, right down to which single justice out of the nine would be on the wrong side of reason…
This is a pretty straightforward question, and one I suspect the Supremes will decide on a lopsided (8-1?) vote.*** It all boils down to this: The Sudanese Foreign Minister isn’t resident in Washington. He’s in Khartoum. And even when he is in Washington representing his government, the Vienna Convention on Consular Relations will thwart service on his person.
*** Thomas, J. in dissent, maybe.
Nailed it. Yesterday, in Republic of Sudan v. Harrison, the Supremes held 8-1 (Thomas, J. dissenting!), that the Sudanese Foreign Minister isn’t resident in Washington. He’s in Khartoum. From the Syllabus: “A foreign nation’s embassy in the United States is neither the residence nor the usual place of business of that nation’s foreign minister.”
Ah, bright lines.
Update, February 13, 2020: Good news from the folks at NPR, “Sudan Says It Is Settling Lawsuit From Families And Victims Of USS Cole Attack”
Sudan says it has signed a deal to settle claims related to the bombing of the USS Cole 20 years ago — a move that could end lawsuits filed by victims and their families and also improve Sudan’s chances of getting off the U.S. list of state sponsors of terrorism.
Sudan’s transitional government has made it a priority to get off that punitive list since it took charge last spring.
Americans who lost loved ones in the bombing have fought for years to get a measure of justice and enforce rulings against Sudan, including roughly $315 million in damages that were awarded by a U.S. judge. But the U.S. Supreme Court threw out that judgment last year, agreeing with attorneys from both Sudan and the U.S. government who said the lawsuit should have been mailed to Sudan’s foreign ministry in Khartoum rather than to its embassy in Washington.
Weeks after the U.S. high court’s ruling, al-Bashir was ousted from power by Sudan’s military, following months of protests. Since then, it’s been led by a mixed council of civilian and leaders.
In another sign of Sudan’s attempts to improve its global standing, the transitional government said Wednesday that it would agree to a longstanding request from the International Criminal Court to hand over al-Bashir and others who are accused of committing crimes against humanity and genocide in Darfur.