Amicus Curiae Brief — Republic of Sudan v. Harrison, 138 S. Ct. 293 (2017) (No. 16-1094)

No. 16-1094

Jn the Supreme Court of the United States

REPUBLIC OF SUDAN,

Petitione,

v.

RICK HARRISON, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF FORMER U.S. COUNTERTERRORISM

OFFICIALS, NATIONAL SECURITY OFFICIALS, AND

NATIONAL SECURITY SCHOLARS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

J. Carl Cecere

Counsel of Record

CECERE PC

6085 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Table of Contents.. i

Table of Authorities iii

Interest of Amici Curiae 1

Introduction and Summary of the Argument.................. 2

Argument 6

I. Serving other countries’ foreign ministers by

mail sent to their U.S. embassies is consistent

with this country’s treaty obligations. 6

A. Service by mail on an embassy, or even on

an ambassador, does not offend Article 22’s

principle of mission inviolability. 6

1. The Convention’s drafting history............ 9

2. The considered consensus of law-

abiding states. 17

3. The Government’s “longstanding”

interpretation. 18

4. The scholarly consensus. 21

B. Service by mail routed through the

embassy presents even less inviolability

concern. 23

Il. Service by mail routed through a foreign state’s

U.S. embassy is unlikely to adversely affect

U.S. foreign relations. 25

ILL. Service via mail transmitted through a foreign

embassy is a vital option in civil suits against

28

state sponsors of terror.

ii

A. The most effective way to give notice to a

foreign sovereign is often through its

embassy. 28

B. Maintaining the option of service via

embassy is essential to protect civil suits as

effective terror-fighting tools. 30

1. Prohibiting service here would sap

the vitality of civil litigation as a

key weapon in the war on terror; ..........--. 30

2. Civil suits targeting foreign

sovereigns are especially effective

in deterring terror financing. .........---- 32

Conclusion 34

TABLE OF AUTHORITIES

Cases

Abbott v. Abbott,

560 U.S. 1 (2010)

Air France v. Saks,

470 U.S. 392 (1985)

Bank Markazi v. Peterson,

136 S. Ct. 1310 (2016)

BG Grp., PLC v. Republic of Argentina,

572 U.S. 25 (2014)

E1LAI Israel Airlines Ltd. v. Tsui Yuan Tseng,

525 U.S. 155 (1999)

Hellenic Lines, Ltd. v. Moore,

345 F.2d 978 (D.C. Cir. 1965)

Hilt Constr. & Mgmt. Corp. v. Permanent

Mission of Chad to the United Nations,

Civ. No. 16-6421, 2017 WL 4480760 (S.D.N-Y.

Oct. 6, 2017)

Hurst v. Socialist People’s Libyan Arab

Jamahiriya,

474 F. Supp. 2d 19 (D.D.C. 2007)

In re Terrorist Attacks on Sept. 11, 2001,

538 F.3d 71 (2d Cir. 2008)

Kumar v. Republic of Sudan,

880 F.3d 144 (4th Cir. 2018)

Medellin v. Texas,

SIR Ses Se QD certecemrensscsnccncecsrenenecsnscesmncnvess

Peterson v. Islamic Republic of Iran,

264 F. Supp. 2d 46 (D.D.C. 2003).

Cases—continued:

Republic of Austria v. Altmann,

541 U.S. 677 (2004) 17

Reyes v. Al Malki, (2017] UKDC 61 18, 20

Sumitomo Shoji Am., Inc. v. Avagliano,

457 U.S. 176 (1982) 18, 19

The Diamond Rings,

183 U.S. 176 (1901) 20

Water Splash, Inc. v. Menon,

137 S. Ct. 1504 (2017) 10

Statutes, Legislative Materials, Regulations, and

Rules

22 U.S.C. § 1882.. =

Foreign Sovereign Immunities Act of 1976,

28 U.S.C. §

1330(b) 8

1350 1

1608(a)(3) passim

1608(a)(4) 9

1608(d) 27

1608(e) 27

1610(a). 2

1610(g) 1

Iran Threat Reduction and Syria Human Rights

Act of 2012, Pub. L. No. 112-158,

§ 502, 126 Stat. 1258 1

Justice Against Sponsors of Terrorism Act, Pub. L. No.

114-222, 130 Stat. 852 8

H.R. Rep. No. 1487, 94th Cong., 2d Sess. (1976)............ 20

v

Statutes, Legislative Materials, Regulations, and

Rules—continued:

Antiterrorism Act of 1990: Hearing on S. 2465

Before the Sen. Subcomm. on Courts &

Admin. Practice, 101st Cong. 84 (1990) 30

Hr’g before the H. Subcomm. on the

Constitution and Civil Justice on H.R. 2040,

114th Cong., 2d Sess. 63 (July 14, 2016) 33

Immunities of Foreign States: Hearing on H.R.

3493 Before the Subcomm. on Claims and

Governmental Relations of the House Comm.

on the Judiciary, 93d Cong., Ist Sess. (1973). ............ 19

22 C.E-R. 98.1(e)(2) i)

Fed. R. Civ. P. 4. 29

Treaty and Treaty Drafting Materials

Vienna Convention of Consular Relations, done

Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95..........000- 6

art. 22 . passim

art. 22(1)

art. 22(2)

art. 30 18

art. 24 7

ast. 38... 7

art. 27 7

art. 29 7

vi

Treaty and Treaty Drafting Materials—continued:

Report of the International Law Commission

Covering the Work of Its Ninth Session, 23

April-28 June 1957, 12 U.N. GAOR Supp. No.

9, at 6, U.N. Doe. A/3623 (1957), reprinted in

[1957] 2 Y.B. Int’! L. Comm'n 131, 137, U.N.

Doe. A/CN.4/SER.A/1957/Add.1 ...........000000- 10, 11, 12, 14

Report of the International Law Commission

Covering the Work of Its Tenth Session, 28

April-4 July 1958, 13 U.N. GAOR Supp. No. 9,

at 17, U.N. Doc. A/3859 (1958), reprinted in

[1958] 2 Y.B. Int’l L. Comm'n 78, 95, U.N. Doe.

A/CN.A/SER.A/1958/ Add. 1 ... 12, 13

Summary Records of the Ninth Session of the

International Law Commission, | 1957] 1 Y.B.

Int’! L. Comm’n 1, U.N. Doe.

NE ctnterncnrecsensrenresesnesnememenmascsemecenees 10

Summary Records of the Tenth Session of the

International Law Commission, | 1958) 1 Y.B.

Int’! L. Comm’n 1, U.N. Doe.

A/CN.4/SER.A/1958 10, 11, 12, 13

U.N. Conference on Diplomatic Intercourse and

Immunities, Annexes, Final Act, Vienna

Optional Protocols, Resolutions, U.N. Doc.

A/CON F.:20/14/Add.1 (Vol. TD) (1962) ...............ccccceceeee 13

United Nations Conference on Diplomatic

Intercourse and Immunities, Summary

Records of Plenary Meetings and Meetings of

the Committee of the Whole 141, U.N. Doe.

A.CONF20/14 (Vol. 1) (1962) (U.N. Conference

Summary Records). : 15, 16, 20

vii

Other Authorities

The 9/11 Commission Report, Final Report of

the National Commission on Terrorist

Attacks Upon the United States 382-383

(2004), <http-//bit.ly/ljwpzQZ >. 31

Anthony Aust, Handbook of International Law

(2d ed. 2010) 24

Amy Belasco, Cong. Research Serv., RL 33110,

The Cost of Iraq, Afghanistan, and Other

Global War on Terror Operations Since 9/11 5

(2014), <http/bit.ly/1IRYWqi>. 31

Christopher M. Blanchard, Cong. Research

Serv., RL 33142, Libya: Background and U.S.

Relations (2008) 17

CBS News, Saudis paid U.S. veterans to lobby

against law allowing 9/11 families to sue

kingdom, May 17, 2017),

<https://cebsn.ws/2D6g6ox >. 17

James Crawford, Brownlie’s Principles of

Public International Law (8th ed. 2012) 22

Ludwik Dembinski, The Modern Law of

Diplomacy (1988) 22

Kileen Denza, Diplomatic Law 110 (4th ed.

2016) 7, 13, 19, 21, 22

Department of Defense, Unclassified Annual

Report on Military Power of Iran (2010),

<http-//bit.ly/2vJQsOu> 33

viii

Other Authorities—continued:

Department of Justice’s Office of International

Judicial Assistance. Department of Justice,

Service of Process on the United States

Government (Nov. 4, 2016),

<tinyurl.com/usgservice > 26

Department of State, Service of Legal Process

by Mail on Foreign Governments in the

United States, 71 Dep’t St. Bull., No. 1840

(Sept. 30, 1974) 20

Rolf Einar Fife & Kristian Jervell, Elements of

Nordic Practice 2000: Norway, 70 Nordic J.

Int’! L. 531 (2001) 18

William L. Griffin, Adjective Law and Practice

in Suits Against Foreign Governments, 36

Temp. L.Q. 1 (1962) 21

Eben Kaplan, Council on Foreign Relations,

Tracking Down Terrorist Financing (Apr. 4,

2006) <on.cfr.org/2i3KgOE > 33

Ernest L. Kerley, Some Aspects of the Vienna

Conference on Diplomatic Intercourse and

immunities, 56 Am. J. Int’] L. 88 (1942).......... 13, 15, 16

Andreas F. Lowenfeld, Claims Against Foreign

States—A Proposal for Reform of United

States Law, 44 N.Y.U. L. Rev. 901 (1969). ............... 8, 21

Letter from Leonard C. Meeker, Acting Lega!

Adviser, U.S. Dep’t of State, to John W.

Douglas, Assistant Att’y Gen., U.S. Dep’t of

Justice (Aug. 10, 1964) 20

Note, Jurisdictional Immunities of Foreign

States, 23 DePaul L. Rev. 1225 (1974) 21

ix

Other Authorities—continued:

Richard Crawford Pugh & Joseph McLaughlin,

Jurisdictional Immunities of Foreign States,

41 N.Y.U. L. Rev. 25 (1966)

Glenn R. Simpson, U/_A.E. Banks Had Suspect

Transfers, Wall St. J., Sep. 17, 2003

Jack D. Smith & Gregory J. Cooper, Disrupting

1 ‘st Fi na With Civil Litigation. 41

Case W. Res. J. Int’! L. 65 (2009).

Marjorie M. Whiteman, Digest of International

Law (1970)

21

31

Juan C. Zarate, Treasury’s War: The

Unleashing of a New Era of Financial

Warfare (2013).

l

INTEREST OF AMICI CURIAE’

Amici are national security scholars and former fed-

eral officials who held senior positions in areas concerned

with counterterrorism, diplomacy, and national security.

Amici have spent their careers developing, interpreting,

and enforcing this country’s framework of federal laws

designed to prevent heinous acts of terrorism. Amici’s

experience confirms that successfully starving terrorist

organizations of funding is a sure way to save American

lives. Amici also understand that private lawsuits must

be an integral component of any strategy to keep money

out of terrorists’ hands.

Amici have previously participated in cases where the

potency of private civil lawsuits as weapons for fighting

terrorism was threatened. Kiobel v. Royal Dutch Petrol.

Co., No. 10-1491 (arguing that the Alien Tort Statute, 28

U.S.C. § 1350, allows claims against corporations for vio-

lations of international law); Jesner v. Arab Bank PLC,

No. 16-499 (same); Bank Markazi v. Peterson, No. 14-770

(advocating successfully for the constitutionality of the

Iran Threat Reduction and Syria Human Rights Act of

2012, Pub. L. No. 112-158, § 502, 126 Stat. 1258, which

allows for execution on funds held by [ran’s central bank

to satisfy certain terrorism-related judgments against

Iran, 22 U.S.C. § 1882); Rubin v. Islamic Republic of

Iran, No. 16-534 (arguing that enactment of Section

1610(g) of the Foreign Sovereign Immunities Act made

' Petitioner and respondents have lodged blanket consent letters

with the court. No counsel for any party authored this brief in whole

or in part, and no entity other than amici or their counsel made a

monetary contribution to the preparation or submission of this brief.

2

all property of state sponsors of terror available for at-

tachment, not merely property “used for a commercial

activity in the United States,” id. § 1610(a)).

This case concerns another effort to undermine the

potency of civil lawsuits as terror-fighting tools by elimi-

nating one of the few available options to effectuate ser-

vice of process on most state sponsors of terror. That re-

sult would further increase the already-astronomical

cost, risk, and time required for these suits, and would

hand terror-sponsoring nations another strategy to

evade justice for their support of heinous acts of hate.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

Section 1608(a)(3) of the Foreign Sovereign Immuni-

ties Act provides a vital strategic tool for victims of state-

sponsored terrorism. This is because, as this shows,

the simple act of effectuating service of process on a for-

eign sovereign accused of material support of terrorism

can stretch out for years—even decades. The strained

relations that usually exist between the U.S. and these

rogue regimes tends to limit the available avenues for

service. Service options are then limited further through

these nations’ procedural tactics, which turns service

alone into a never-ceasing war of attrition against terror

victims.

Section 1608(a)(3)’s provision for service by mail sup-

plies a vital counterweight to those tactics, because it

provides terror victims with options. That provision dic-

tates the person to whom the summons and complaint

must be directed: the foreign minister of the recipient

state. And it requires that the packet containing those

items be transmitted to the foreign minister with appro-

3

priate “dispatch||.” /bid. But, as Respondents have per-

suasively demonstrated, Section 1608(a)(3) provides op-

tions for getting it there. The service packet might be

mailed to the foreign minister directly in the recipient

state. Or it might be mailed to that country’s embassy

here in the U.S., to be provided to the minister. These

options allow clerks and victims to determine for them-

selves the method that will best provide the putative de-

fendant with notice while minimizing the likelihood of

strategic evasions from the rogue state. Indeed, this case

is a success story in Congress’s effort. Service by mail

has been effectuated several times—and Sudan has been

aware of the underlying lawsuits for years.

Yet Sudan tries to take one of those precious options

under 1608(a)(3) off the table, using the hammer-blow of

international law. Sudan claims that simply transmitting

a letter to another state’s foreign minister through its

embassy is impermissible, a violation of the principle of

mission inviolability embodied in Article 22 of the Vienna

Convention on Diplomatic Relations. But the Vienna

Convention simply cannot be read as Sudan insists, even

with the Government bolstering its position.

The principle of mission inviolability embodied in Vi-

enna Convention Article 22 is a time-honored protection

that nations afford to other nations’ diplomatic envoys. It

protects the physical premises of the embassy as foreign

soil, preventing agents of the host state from asserting

sovereign rights on the mission’s premises. And it impos-

es a duty on host nations to treat the diplomatic mission

with the respect the dignity of its task deserves, and its

unique diplomatic function requires, to ensure that re-

spectful discourse between nations can be maintained.

4

The overwhelming consensus of the nations who

drafted and ratified the Vienna Convention, and the con-

sidered opinion of signatory nations today, holds that this

inviolability principle is not offended by service by mail.

Indeed, this consensus holds that service can be made

directly on the embassy or the ambassador, by mail sent

to the embassy grounds—a circumstance where inviola-

bility concerns are at their zenith. And that consensus

controls the Convention’s meaning.

That makes this an easy case, because this case does

not involve service on an embassy, or even on an ambas-

sador. It involves service through an embassy, to a non-

embassy official. Even if some lingering inviolability con-

cerns might exist when a summons appears on an am-

bassador’s desk, those concerns are completely absent

when a front-desk clerk receives a service packet by mail

addressed to the foreign minister, signs for it, and ar-

ranges for it to be transported to the home office. That

sequence of events might have some importance from a

procedural perspective for calculating deadlines. It might

even comprise a necessary step for obtaining personal

jurisdiction over the foreign sovereign. But the force of

U.S. law felt in that sequence lands in the home country,

and has not been brought to bear on the embassy prem-

ises, or the front-desk clerk—after all, she can refuse to

sign for the packet without U.S.-legal consequences be-

ing visited upon her. And the embassy’s diplomatic func-

tions remain unaffected. No one calls the ambassador in

to consult on sending a package, so the ambassador is not

distracted from her diplomatic duties. And sending a

package to the home office is something that front-desk

clerks do all the time. Article 22’s inviolability principle is

thus in no way implicated in this case, and neither the

5

Government nor Petitioner cite a single source establish-

ing otherwise.

The Government insists that its contrary reading of

the Convention, and its decision to align with a state

sponsor of terror, should be given deference based on

high-minded rhetoric about protecting other nations in

our courts. But the Government’s true concerns are more

self-interested, and they are reflexive, not rational. The

Government ultimately admits that its current treaty in-

terpretation is advanced primarily to support the policy

it adheres to when being served in other nations’

courts—a stance that provides far narrower and more

particular options when others sue us than what we re-

quire other nations to accept in our courts. The Govern-

ment contends that a ruling for Sudan is necessary to en-

sure reciprocal respect for that policy, and worries that a

win for Respondents might provoke a spate of retaliatory

legislation from other nations. But Sudan’s position is no

better for reciprocity than Respondents’, because neither

cures the asymmetry in the Government’s stance. And

the mere act of serving a foreign minister through an

embassy is unlikely to cause international tensions to

flare, because foreign sovereigns enjoy many procedural

protections in our courts that serve to cool potential ten-

sions. The Government’s illusory foreign-relations con-

cerns thus provide no reason to give uncritical deference

to the Government’s convenient treaty interpretation,

any more than it is a reason to defer to its overly restric-

tive interpretation of the FSIA. It is certainly no reason

to hand state sponsors of terror another procedural

roadblock they can use to evade service, thereby under-

mining an important weapon in the war on terror.

6

ARGUMENT

I. Serving other countries’ foreign ministers by

mail sent to their U.S. embassies is consistent

with this country’s treaty obligations.

Sudan and the Government lean heavily on the Vien-

na Convention of Consular Relations, done Apr. 18, 1961,

23 U.S.T. 3227, 500 U.N.TS. 95, to support their interpre-

tation of FSIA Section 1608(a)(3), claiming that their po-

sition is necessary to remain faithful to the concept of

mission inviolability embodied in Article 22 of the Con-

vention. Respondents have detailed numerous reasons

why interpreting the Vienna Convention is not necessary

to understand Section 1608(a)(3)’s meaning—the primary

one being that the statutory text unambiguously sup-

ports Respondents’ interpretation. But in any event, the

Vienna Convention serves as no obstacle to the service

option that Respondents have chosen here—service by

mail on the foreign sovereign’s foreign ministry through

its U.S. embassy.

A. Service by mail on an embassy, or even on an

Both Sudan and the Government claim that service

by mail “on,” “through,” “in care of,” or “via” a foreign

state’s U.S. embassy violates Article 22 of the Vienna

Convention. Pet. Br. 31; U.S. Br. 26-27. But that is simply

incorrect. In reality, neither Article 22 nor the principles

of mission inviolability it embodies are offended when

service of process is mailed to an embassy—regardless of

the preposition involved.

7

Article 22 provides protection for a foreign nation’s

diplomatic mission in the United States from physical in-

trusions. It protects “(t]he premises of” the mission as

foreign soil, requiring that they “shall be inviolable”—

meaning that the “[t]he agents of the receiving State may

not enter them, except with the consent of the head of

the mission.” Vienna Convention art. 22(1), 23 U.S.T.

3237, 500 U.N.TS. 106. That requires the receiving na-

tion to “abstain from exercising any sovereign rights, in

particular law enforcement rights, in respect of inviolable

premises.” Eileen Denza, Diplomatic Law 110 (4th ed.

2016). It also requires that receiving nations take “all ap-

propriate steps * * * to prevent any disturbance of the

peace of the mission or impairment of its dignity.” /d. art.

22(2), 23 U.S.T. 3237, 500 U.N.TS. 106.

Some suggest that the principle of mission inviolabil-

ity goes beyond these protections for consular mission

premises, to protect mission personnel, requiring that

they enjoy “full and unrestricted independence in the

performance of their allotted duties,” Pet. ™r. 36 (citation

omitted), and that there be no interference “upon the

unique characteristics of [the] diplomatic miveion.” Ku-

mar v. Republic of Sudan, 880 F.3d 144, 157% (4th Cir.

2018). It is unlikely, however, that mission inviolability

extends so far—especially because mission personne! and

their diplomatic business enjoy special immunities pro-

vided elsewhere in the Convention.”

® Articles 26 and 29, for instance, protect the inviolability of dip-

lomats and embassy officials, while Articles 24 and 27 protect the

inviolability of diplomatic files and correspondence.

8

In any event, nothing in Article 22 or its inviolability

principle is violated through service by mail sent to the

embassy. It is the act of an agent of the receiving State

exercising sovereign power on consular property that Ar-

ticle 22 prohibits. That principle would thus prohibit in-

person service of process within an embassy even when

conducted by a private process server. This is because in-

person service involves a person entering the premises

for the purpose of asserting U.S. legal power—as one

step necessary to assert jurisdiction of a U.S. court over

the foreign sovereign. 28 U.S.C. § 1330(b).

Yet service by mail to embassy premises cannot be

conflated with in-person service on embassy premises,

despite what Sudan suggests. Pet. Br. 44. Mailing a letter

requires no U.S. government agent—or anyone operat-

ing under color of U.S. law—to cross the embassy’s

threshold. Such agents might place the packet in the

mail, but the packet is actually delivered to the embassy

by a mailman who is no more an “agent” exercising pow-

er of the receiving state than the “milkman.” Resp. Br. 37

(quoting 7 Marjorie M. Whiteman, Digest of Interna-

tional Law § 36, at 376 (1970)).

Service by mail on the embassy also does not inter-

fere with an embassy’s uniquely diplomatic functions.

Even if the embassy or the ambassador herself is the ad-

dressee for a summons meant for the sovereign, there

has been no exercise of U.S. legal power on embassy

premises. “No personal service [is] made on diplomats

and no attempt would be made to subject them personal-

ly to the jurisdiction of a United States court.” Andreas

F. Lowenfeld, Claims Against Foreign States—A Pro-

posal for Reform of United States Law, 44 N.Y.U. L. Rev.

901, 934 (1969). The assertion of jurisdiction is on the

9

foreign state, not the ambassador, so no U.S. legal force

is brought to bear on the embassy premises.

Certainly that situation involves no more an assertion

of legal power or diplomatic interference than when ser-

vice “through diplomatic channels to the foreign state” is

attempted under 28 U.S.C. § 1608(a)(4), under which the

summons is delivered directly to the foreign state’s em-

bassy, 22 C.F-R. 98.1(c)(2). That option involves the same

use of the embassy’s mail as the method Respondents

chose, and doubles the compulsion by bringing two

branches of government to bear on the embassy premis-

es. The involvement of diplomatic officials also raises the

stakes of a simple lawsuit to a potential international con-

flict. If Congress believed that the Section 1608(a)(4)

process was consistent with its treaty obligations, then it

must have understood that the practically identical but

legally less significant process under Section 1608(a)(3)

was too. Accordingly, both the text of Article 22 and the

inviolability principles it embodies would permit service

by mail on the U.S. consulate of a foreign nation.

The Government and Sudan insist otherwise, claim-

ing support for their position from the Convention’s

drafting history and interpretations by other signatory

nations, commentators, and Executive Branch officials.

But at each turn, their position is misleading and incom-

plete. A more accurate account shows each of these au-

thorities to be on Respondents’ side.

1. The Convention’s drafting history.

All agree that the Vienna Convention’s “drafting his-

tory” is relevant in interpreting its provisions. U.S. Br. 23

(quoting Water Splash, Inc. v. Menon, 137 8. Ct. 1504,

1511 (2017) (considering treaty drafting history); Medel-

10

lin v. Texas, 552 U.S. 491, 507-508 (2008) (same)); Pet. Br.

38; Resp. Br. 38. But a complete and accurate account of

the Convention’s history shows that it supports Re-

spondents, not Sudan or the Government.

The subject of serving process on embassy officials in

a manner compatible with missiou inviolability was much

discussed by the commission that drafted Article 22—

The United Nations’ International Law Commission

(ILC). The ILC’s sessions repeatedly confirmed the

same consensus: There was “almost unanimous agree-

ment” that “serving of writs at the premises of diplomat-

ic missions” was “an act contrary to international law.”

Summary Records of the Ninth Session of the Interna-

tional Law Commission, [1957] 1 Y.B. Int’| L. Comm’n 1,

64, U.N. Doc. A/CN.4/SER.A/1957. (ILC Ninth Session

Summary Records). Yet it was just as “clearly under-

stood that the serving of notices through the post would

not infringe the inviolability of a mission’s premises.”

Summary Records of the Tenth Session of the Interna-

tional Law Commission, [1958] 1 Y.B. Int’1 L. Comm’n 1,

131, U.N. Doe. A/CN.4/SER.A/1958 (emphasis added)

ULC Tenth Session Summary Records).

The Commission committed this understanding to

writing in a 1957 draft report on the Vienna Convention

submitted the United Nations General Assembly—the

same report from which Sudan and the Government try

to glean a contrary understanding. U.S. Br. 23 (citing

Report of the International Law Commission Covering

the Work of Its Ninth Session, 23 April-28 June 1957, 12

U.N. GAOR Supp. No. 9, at 6, U.N. Doc. A/3623 (1957),

reprinted in [1957] 2 Y.B. Int’] L. Comm’n 131, 137, U.N.

Doe. A/CN.4/SER.A/1957/Add.1 (ILC Ninth Session Re-

port)); see also Pet. Br. 38-39 (same). But that report's

11

sole purpose was to clarify “that certain types of writ” —

those that required personal service to be effective—

“could not be served on mission premises.” Tenth Ses-

ston Summary Records 131 (statement of Mr. Fitzmau-

rice, United Kingdom representative) (emphasis added).

The 1957 draft report thus explained that only physical

intrusions onto consular premises were prohibited,

providing that “no writ shall be served within the prem-

ises of the mission, nor shall any summons to appear be-

fore a court be serviced in the premises by a process

server.” 1L.C Ninth Session Report 137. This prohibition

extended to bar “process servers” that “carry out their

duty at the door.” /bid. But care was taken in the 1957

report to avoid any implication that the article was

meant to “prevent the serving of a process through the

post, which was not” the report’s aim. LC Ninth Session

Summary Records 65 Despite these efforts, however,

the 1957 ILC draft report left some room for confusion

by including a statement that all writs constituting ser-

vice of process “must be delivered through the Ministry

for Foreign Affairs of the receiving State.” 1LC Ninth

Session Report 137. This seemed to suggest that the only

internationally acceptable method of service would be

service by diplomatic means through the foreign minis-

try of “the receiving State”—.e., the state hosting the

diplomatic mission to be served.

Yet any confusion on this score did not last long. The

Japanese delegation led an effort to have the draft report

clarified to ensure that the “possibility of sending writs

through the post should not be excluded.” JLC Tenth

Session Summary Records 131. The issue was significant

to the Japanese, because for them service by diplomatic

agents was the norm: “{I}n cases where civil actions were

12

brought against diplomatic agents, the procedure was to

notify diplomatic agents through the post.” /bid. Japan

claimed it would experience “some difficulty if no allow-

ance were made for that proceeding.” /bid. Other repre-

sentatives expressed support for Japan’s effort. E.g., id.

at 139 (statement of Iranian representative); «id.

(statement of Swedish representative); ibid. (statement

of Fitzmaurice).

Thus when the ILC produced its final report in 1958,

it modified the draft report’s language to clarify that

“there is nothing [in proposed Article 22] to prevent ser-

vice through the post if it can be effected in that way.”

Report of the International Law Commission Covering

the Work of Its Tenth Session, 28 April-4 July 1958, 13

U.N. GAOR Supp. No. 9, at 17, U.N. Doe. A/3859 (1958),

reprinted in [1958] 2 Y.B. Int'l L. Comm’n 78, 95, U.N.

Doe. A/CN.4/SER.A/1958/Add.1 (/LC Tenth Session Re-

port) (emphasis added). The revised version also deleted

the troublesome language suggesting that certain judi-

cial writs “must be delivered through the Ministry for

Foreign Affairs Of the receiving [s]tate.” Compare ILC

Ninth Session Report 137 with ILC Tenth Session Re-

port 95. Instead, the final report explained that in some

countries persons seeking to effectuate service “may”—

but are not required to—apply to the Ministry for For-

eign Affairs of the receiving State” if they wished assis-

tance in effectuating service. 1LC Tenth Session Report

95.

Despite these changes in the 1958 final report, the

Japanese representative remained concerned. Japan

feared that burying the ILC’s position on service by mail

in an explanatory comment would not be clear enough,

thinking that “it cannot be considered as self-evident

13

from the original text of the article.” /L.C Tenth Session

Summary Records 137. The Japanese minister thus pro-

posed adding a new paragraph to the text of Article 22

itself prohibiting writs “served by a process server with-

in the premises of the mission.” U.N. Conference on Dip-

lomatie Intercourse and Immunities, Annexes, Final Act,

Vienna Convention on Diplomatic Relations, Optional

Protocols, Resolutions, U.N. Doc. A/CONF20/14/Add.1,

at 22 (Vol. IT) (1962). This was meant to “to incorporate”

the final report’s language regarding service,

“{p)articularly, the concept of the fifth sentence” clarify-

ing that service by mail was allowed. /bid.

The Japanese minister later withdrew this proposal

for amending Article 22, satisfied that “discussion within

the Committee [of the Whole] had established a unani-

mous consensus that service could be effected by mail.”

Ernest L. Kerley, Some Aspects of the Vienna Confer-

ence on Diplomatic Intercourse and immunities, 56 Am.

J. Int'l L. 88, 102 (1962).

Although this formal amendment was withdrawn, the

1958 final report was still submitted along with the draft

articles of the Convention to the U.N. General Assembly

ILC Tenth Session Report 79. The report thus served as

the basis for the Convention’s adoption by the General

Assembly and its ratification by all 185 of the current

signatories. Denza 124.

The Government and Sudan ignore virtually all of this

extensive drafting history supporting the view that ser-

vice by mail to consular premises is permissible. Instead,

their collective efforts focus on a single piece of evidence:

the 1957 ILC draft report. U.S. Br. 23; Pet. Br. 38-39. But

both Sudan and the Government fail to show how this

draft report, which deliberately preserved the option of

14

service by mail, could be compatible with the view that

this service method was prohibited. And neither the Gov-

ernment nor Sudan mention the essential fact that the

1957 draft they rely upon was changed in the 1958 final

report, to make clear that service by mail was allowed.

That disingenuous treatment of the Convention’s draft-

ing history does not make for a compelling argument.*

Sudan, but not the Goverument, strays even further

afield in attempting to cobble together a supposed “unan-

imous” consensus in favor of its interpretation from two

isolated snippets of the ILC hearing records. Pet. Br. 39.

But it is easy to see why even the Government will not

join Sudan on this ledge.

Sudan focuses first on a statement attributed to the

Japanese representative upon his decision to withdraw

the proposal to amend the text of Article 22 to clarify

suggests he did so believing “it was the unanimous in-

terpretation of the [Committee of the Whole] that no writ

could be served, even by post, within the premises of a

* Sudan fares no better in emphasizing that portion of the 1957

draft report providing that “/ajll judicial notices * * * must be de-

State” Pet. Br. 39 (quoting JL Ninth Session Report 6), as if to sug-

gest that the defendant nation’s foreign ministry is the only permis-

sible destination for service of process. For one thing, the “Ministry

for Foreign Affairs of the receiving State” does not refer to the min-

istry of the defendant state, but rather that of host state—on these

facts, the ministry of the United States, not that of Sudan. For an-

other, the draft was modified to remove the implication that al! pro-

cess must be sent to any single destination, which was thought to be

“unnecessarily categorical.” [LC Tenth Session Summary Records

131.

15

diplomatic mission.” Pet. Br. 37 (quoting United Nations

Conference on Diplomatic Intercourse and Immunities,

Summary Records of Plenary Meetings and Meetings of

the Committee of the Whole 141, U.N. Doc.

A.CONF20/14 (Vol. I) (1962) (U.N. Conference Summary

Records). But this statement sure seems odd. Odd indeed

for the Japanese representative to abandon an amend-

ment that his country had championed as critical to pre-

serve its practices for serving diplomats. Odder still for

him to do so based on a “consensus” —appearing nowhere

in the convention record—that seems to flout the actual

consensus of the ILC, and the apparent consensus of the

Committee of the Whole. Resp. Br. 42 (citing U.N. Con-

ference Summary Records 137-140 (statements of Soviet,

Norwegian, Spanish, Ghanaian, and Turkish representa-

tives indicating support of service by post on diplomatic

premises)). And the kicker: If the Japanese representa-

tive (or the rest of the ILC, or the Committee of the

Whole) really had a sudden change of heart against ser-

vice by mail, why would any of them be satisfied with

merely withdrawing the proposed amendment to Article

22? Would it not also be incumbent upon them to call for

amendment to the 1958 report that expressly permitted

service by mail? Sudan answers none of these crucial

questions.

It thus seems more likely that the statement attribut-

ed to the Japanese representative was a mistranslation

or mis-transcription. What the Japanese representative

probably meant to convey was that he was withdrawing

his proposal because “discussion within the Committee

had established a unanimous consensus that service

could be effected by mail.” Kerley 102 (emphasis added).

That, in fact, is how the statement was apparently under-

16

stood by at least one former U.S. State Department at-

torney who would have been likely to know what really

transpired. [bid.

Sudan’s reliance on a statement of the Argentine rep-

resentative Pet. Br. 39, is similarly misplaced. The Ar-

gentine representative noted that he “approved the idea

behind the Japanese amendment,” but announced that he

would vote against it ‘if it were to be interpreted as per-

mitting the service of a writ through the post.” Pet. Br.

39 (quoting U.N. Conference Summary Records 137).

Sudan reads this as an objection to any measure that

would allow host states to provide for service by mail on

embassy premises. But it makes no sense that the Ar-

gentine representative would object to a proposal to

amend the text of Artic!. 22 based on something that was

already allowed under the 1958 final report, or that he

would do so based on a proposal he had approved of.

More likely, he simply wished to register concern that the

proposal might be interpreted to foist the obligation to

provide service by mail on states against their will, ra-

ther than to simply give them the option whether to allow

for it. In any event, there is no question that the Argen-

tinian representative was alone even in taking this idio-

syncratic view.

In short, these isolated snippets cannot undermine

the entire thrust of the Vienna Convention debates, and

the unambiguous understanding upon which the Conven-

tion was enacted and ratified, which provides that service

by mail on embassies is permitted under the Vienna

Convention.

17

2. The considered consensus of law-abiding

states.

Sudan and the Government also claim to have a con-

sensus of sister states to support their position. See Pet.

Br. 46-47; U.S. Br. 22. But it is surprising the lengths that

they must go to find supporters. Most of the states on

their list were once sponsors of terror themselves, who

face potential civil liability for their past terrorist sup-

port—even if they are now claim to be reformed. See,

e.g., Christopher M. Blanchard, Cong. Research Serv.,

RL 33142, Libya: Background and U.S. Relations 6

(2008) (noting that the State Department designated

Libya a state sponsor of terrorism until 2006); Hurst v.

Socialist People’s Libyan Arab Jamahiriya, 474 F. Supp.

2d 19, 26 (D.D.C. 2007) (holding Libya liable for the 1988

bombing of Pan Am Flight 108); /n re Terrorist Attacks

on Sept. 11, 2001, 5388 F3d 71, 78 (2d Cir. 2008) (noting

Saudi Arabia’s support for terrorism); Glenn R. Simpson,

UA.E. Banks Had Suspect Transfers, Wall St. J., Sep.

17, 2003, at Al0 (discussing U.A.E.’s financing of terror-

ism). Even seemingly innocent Austria faces potential

liability for its past Holocaust-related acts. See, e.g., Re-

public of Austria v. Altmann, 541 U.S. 677 (2004).

At least one of these countries has actively lobbied

against efforts to allow civil suits for victims of terrorism.

See CBS News, Saudis paid U.S. veterans to lobby

against law allowing 9/11 families to sue kingdom, May

17, 2017) (discussing U.A.E. efforts to lobby against the

Justice Against Sponsors of Terrorism Act, Pub. L. No.

114-222, 130 Stat. 852), <https://cbsn.ws/2D6g60x>. All of

these countries’ opinions ought to be considered of a

piece with that effort—yet another attempt to lobby for

service loopholes they might someday exploit to escape

18

justice. In no event should their self-serving positions be

trusted as authoritative interpretations of Article 22.

This is especially true when the body of opinion from

other, law-abiding countries goes the other way. The true,

considered consensus of sister states on the permissibil-

ity of service by mail has remained unchanged since the

drafting and ratification of the Vienna Convention; in

fact, it has only cemented over time. Just last year, the

Supreme Court of the United Kingdom held that the Vi-

enna Convention permitted service of process by mail on

a diplomatic residence, Reyes v. Al Malki, (2017) UKDC

61, which, under Article 30 of the Vienna Convention,

“enjoyis| the same inviolability and protection as the

premises of the consular mission.” Such “decisions of the

court of other Convention signatories,” El Al Israel Air-

lines Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 175 (1999),

are entitled to “considerable weight.” Air France v. Saks,

470 U.S. 392, 404 (1985) (citation omitted).

The Director of the Norwegian Foreign ministry has

announced a similar position that “[clonveying a writ

through the postal services has not in itself * * * been

considered an infringement of the inviolability of the

premises of the mission.” Rolf Einar Fife & Kristian

Jervell, Elements of Nordic Practice 2000: Norway, 70

Nordic J. Int’! L. 531, 558 (2001). “(W]e must, absent ex-

traordinarily strong contrary evidence, defer to” these

interpretations of sister states. Sumitomo Shoji Am.,

Inc. v. Avagliano, 457 U.S. 176, 185 (1982).

3. The Government’s “longstanding” inter-

pretation.

The Government’s fares no better in its bid to obtain

deference for its supposed “longstanding policy and in-

19

terpretation” of Article 22 and “the customary interna-

tional law it codifies.” U.S. Br. 21-22. At best, the defer-

ence due to the Government’s interpretation of a treaty

is never “conclusive,” Sumitomo, 457 U.S. at 184, and on-

ly matters to the extent it illuminates the treaty’s true

meaning. See BG Grp., PLC v. Republic of Argentina,

572 U.S. 25, 37-38 (2014). The Government’s interpreta-

tion does not do that. And its position is anything but

“longstanding.”

As a participant in the ILC, the U.S. was certainly

aware of, and put up no resistance to, the consensus view

that Article 22 would permit service by mail. And the

U.S. ratified the Convention based on that understand-

ing. After ratification, “the United States had consistent-

ly favored permitting service by post” for more than a

decade. Denza 124. Thus, in 1973, during the drafting of

the F'SIA, the Secretary of State maintained that “it was

generally accepted during the drafting of the Vienna

Convention on Diplomatic Relations that the prohibition

[on service within the embassy] does not apply to service

effected by mail.” Immunities of Foreign States: Hear-

ing on H.R. 3493 Before the Subcomm. on Claims and

Governmental Relations of the House Comm. on the Ju-

diciary, 93d Cong., Ist Sess. 43 (1973) (House Report).

And the State Department used this consensus view to

support its proposal in the “early draft of the FSIA,”

U.S. Br. 29, that would allow for service by mail on a for-

eign state via its U.S. embassy. House Report 43.

The Government’s interpretation of the Vienna Con-

vention only changed after the Japanese minister’s

misattributed remarks during the Vienna Convention’s

20

drafting somehow “{came] to [its] attention.”* See De-

partment of State, Service of Legal Process by Mail on

Foreign Governments in the United States, 71 Dep’t St.

Bull, N No. 1840, at 459 (Sept. 30, 1974) (citing U/.N. Con-

ference Summary Records 141).

Only then did the Government change its policy on

acceptance of service at U.S. embassies abroad. And only

then did the State Department recommend revising the

draft of FSIA to disallow service by mail on the embassy.

H.R. Rep. No. 1487, 94th Cong., 2d Sess. 26 (1976). It is

thus the Government’s earlier, correct, interpretation of

Article 22, not its newly revised and incorrect one, that

controls. “The meaning of [a] treaty cannot be controlled

by subsequent explanations” of its meaning, even by

“some of those who may have voted to ratify it.” The Di-

amond Rings, 183 U.S. 176, 180 (1901).

* The Government claims its opinion has an older vintage, da-

ting to a 1964 letter the Department of State submitted in Hellenic

Lines, Lid. v. Moore, 345 F2d 978, 982 (D.C. Cir. 1965). U.S. Br. 21-

22 (citing Letter from Leonard C. Meeker, Acting Legal Adviser,

U.S. Dep’t of State, to John W. Douglas, Assistant Att'y Gen., U.S.

Dep’t of Justice (Aug. 10, 1964)) (Meeker Letter). But the Meeker

Letter says nothing about Article 22, except it bars service “in the

premises of an embassy.” /d at 9. And while it concludes that embas-

sies cannot act “as agent of the sending state for the purpose of ac-

cepting process,” this conclusion results from principles of agency

law—that a country’s establishment of a diplomatic mission “did not

implicitly or explicitly empower that mission to act as agent”—not

principles of treaty interpretation. /bid.

21

4. The scholarly consensus.

Sudan and the Government also claim support for

their treaty interpretation from a series of modern schol-

ars, claiming that they represent the “prevailing under-

standing of Article 22.” U.S. Br. 21. But the prevailing

understanding among scholars writing around the Con-

vention’s ratification was different, and included many

State officials that were familiar with the drafting effort.

To them, “[njothing in the Vienna Convention or in cus-

tomary international law prevents the use of the mail to

notify a foreign state that it is required to answer a

summons and complaint.” Lowenfeld 934; William L.

Griffin, Adjective Law and Practice in Suits Against

Foreign Governments, 36 Temp. L.Q. 1, 13 (1962); see

also Note, Jurisdictional Immunities of Foreign States,

23 DePaul L. Rev. 1225, 1240 (1974); Richard Crawford

Pugh & Joseph McLaughlin, Jurisdictional Immunities

of Foreign States, 41 N.Y.U. L. Rev. 25, 31-32 (1966).

The scholars cited by the Government and Sudan

cannot upset this settled understanding. U.S. Br. 21; Pet.

Br. 37-38. Their leading treatise, U.S. Br. 21, Denza’s

Diplomatic Law, actually recognizes that the “original

understanding” of Article 22 was “that service by post

would not in itself be a breach of inviolability.” Denza 124,

126. Yet it wrongly assumes this original understanding

was discarded in “practice,” based largely on the U.S.

change in interpretation of Article 22. Jd. at 124. Thus

the U.S. demonstrates “consistency” with scholars only

by bootstrapping on its own shifting position. U.S. Br. 22.

Further, their side’s leading scholar admits that rigid

prohibition of service by mail on embassy premises is bad

policy, “[gliven that many individuals resident in such

premises may not be entitled to immunity from jurisdic-

22

tion.” Jd. at 126. And she cites cases, such as Reyes, that

buck the modern “practice,” marking a return to the

original understanding of Article 22. Ibid.

The other scholars cited by Sudan and the Govern-

ment are worse. One bases his opinion on an irrelevant

case about in-person service, Hellenic Lines, 345 F.2d at

979, augmented only by the U.S.’s changing position and

Denza’s infirm one. James Crawford, Brownlie’s Princi-

ples of Public International Law 29 (8th ed. 2012). An-

other offers little more than his bare read of the Vienna

Convention, which to him makes it “perfectly clear” that

Article 22 does the exact opposite of what the people who

drafted, accepted, and ratified the Convention under-

stood it to do. Ludwik Dembinski, The Modern Law of

Diplomacy 198 (1988). And he is reading the wrong part

of Article 22 (subsection 3) to boot. /bid. These scholars’

views offer little to commend them.

Whatever the confusion percolating through a few

self-interested rogue states, academic thinkers, or even

the U.S., nothing can undermine the clear, coherent con-

sensus of the ILC, the Committee of the Whole, the Gen-

eral Assembly and the 180 other states that ratified the

Convention. It likewise cannot control over the under-

standing possessed by the United States before its devia-

tion in “practice.” These are all perfectly consistent, and

all agree that even service by mail on an ambassador

herself—the head of the consular mission—would be per-

fectly acceptable, even to the mission—the seat of her

office—where inviolability concerns would be at their

highest.

23

B. Service by mail routed through the embassy

presents even less inviolability concern.

That makes this an easy case, because here inviolabil-

ity is at its lowest ebb. Whatever theoretical inviolability

concerns might exist from service on an ambassador or

embassy, they are virtually absent when a service packet

is mailed to the foreign minister—who enjoys no inviola-

bility protection—and the service packet is simply routed

through the embassy.

When a service packet for the foreign sovereign is

addressed to the embassy itself, the summons arrives on

the desk of the ambassador as head of the mission. Once

there, the ambassador must make decisions about what

to do with the summons—decisions could affect the legal

rights of the sovereign. It could therefore be said that the

ambassador experiences some compulsion of U.S. law,

however indirect.

By contrast, when service is delivered by mail

through the embassy, such compulsion is completely ab-

sent. The front-desk clerk is asked only to read the label,

sign for the service package, and passes it on for delivery.

None of those requests is backed by a compulsion to act

under force of U.S. law. She is free to refuse to sign for

the package without any U.S. legal repercussions. As Re-

spondent explains (at 28), those events might cause ser-

vice to fail, but none would subject the clerk to liability

under U.S. law. She is completely free from the “official

and coercive nature of a summons.” Pet. Br. 44.

Service by mail routed through the embassy also in-

volves no interference with diplomats’ “unrestricted in-

dependence in the performance of their allotted duties”

Pet. Br. 36, and causes no diversion of embassy resources

24

from the uniquely diplomatic functions of the mission. It

is unlikely that the ambassador or any diplomatic offi-

cials will ever see the summons, much less be required to

make decisions about it. The task is handled entirely by

the front desk and the mailroom, and involves functions

that mailrooms and front desks do all the time. Thus, the

mission might become a de facto messenger for the sum-

mons, but not a de facto agent. U.S. Br. 27, Pet. Br. 42.

Service by mail likewise does not involve conscription

of the “diplomatic pouch” in any manner that would be

prohibited by the Vienna Convention, despite what Peti-

tioner fears. Pet. Br. 46. Nothing requires that the sum-

mons be transmitted in the diplomatic pouch. Embassy

personnel may thus transmit the summons to the foreign

minister using the same secure email and fax services

that virtually all businesses now use. Resp. Br. 28 (citing

Anthony Aust, Handbook of International Law 122 (2d

ed. 2010)).

Perhaps most importantly, while Vienna Convention

Article 27 protects the inviolability of the diplomatic

pouch, that only prevents the pouch from being opened

by the receiving State. It cannot be said that principle

prohibits anyone from even requesting that the embassy

pass on a letter. And compliance with that request is

completely voluntarily—if the embassy objects to partic-

ipating in the transmittal of a service packet, or deems

the task too onerous, it can simply refuse. For these rea-

sons, even the most aggressive of scholars have never

suggested that service by mail merely routed through an

embassy would be inconsistent with U.S. treaty obliga-

tions.

25

Il. Service by mail routed through a foreign

state’s U.S. embassy is unlikely to adversely

affect U.S. foreign relations.

Interpretive issues aside, the Government claims that

its opinion on the Vienna Convention should control as it

is the branch possessing the institutional sensitivity to

properly assess the “diplomatic consequences resulting

from’ judicial interpretations” of treaty obligations. U.S.

Br. 24 (quoting Abbott v. Abbott, 560 U.S. 1, 15 (2010)).

But that sensitivity may sometimes prove to be an over-

sensitivity, as in this case.

The Government claims an interest in ensuring that

other countries are served “in a manner consistent with

the United States’ treaty obligations.” U.S. Br. 10. That

interest is certainly legitimate, but does not demand

preference for the Government’s interpretation, because

adoption of Respondents’ interpretation is equally faith-

ful to those treaty obligations.

The Government gets closer to the heart of the mat-

ter when it insists that adoption of its treaty interpreta-

tion is necessary to ensure reciprocal respect for its own

position on service in foreign courts. But it is difficult to

understand how a ruling for Petitioner better respects

reciprocity than a ruling for Respondents. After all, nei-

ther of the options offered to the Court for resolving this

case mirrors the U.S.’s aggressive and asymmetrical

stance on service abroad. When sued abroad, the Gov-

ernment refuses to accept service by mail on its embassy

premises or at its foreign ministry—the U.S. Depart-

ment of State. Instead, it asserts that “service on the

U.S. government is only proper when transmitted”

through “diplomatic channels” or “Article 5 of the Hague

26

Service Convention” by delivery to the U.S.’s designated

“Central Authority”—the Department of Justice’s Office

of International Judicial Assistance. Department of Jus-

tice, Service of Process on the United States Government

(Nov. 4, 2016) (State Service Guidance) <ti-

nyurl.com/usgservice>. The Petitioner’s stance that

service must go directly to the foreign minister does no

more to the realign this asymmetry than Respondents’

position does. Accordingly, concerns of reciprocity have

no bearing on this case.

The Government also fails to show how Respondents’

position is uniquely dangerous to its service policy. The

likelihood that this case will provoke a spate of retaliato-

ry actions from other states is slim—but not because of

the protections of international law do anything to pre-

vent it. Indeed, the Vienna Convention’s principles al-

ready permit states to decide whether to allow service by

mail on U.S. embassies abroad, and has since the Con-

vention was approved and ratified. Hence, international

law has never offered the U.S. policy any protection from

retaliation.

What actually prevents retaliation are the multiple

layers of protections in U.S. law that make it unlikely

that issues surrounding service on foreign sovereigns

will produce the kind of outrage that might lead to a raft

of retaliatory laws threatening U.S. policy.

These start with the Government’s own notice policy.

As the Government notes, State Service Notice 2, it does

not hide behind procedural roadblocks in a strategic at-

tempt to evade justice as Sudan has done. Rather, it gives

notice to the serving party’s foreign minister when ser-

vice problems arise, thus ensuring that service can be

27

properly effectuated. /bid. That simple step will usually

keep tensions over service at bay.

There are also mechanisms that prevent issues of

service of process upon foreign stations in our courts

from escalating into the kinds of conflicts that would pro-

duce retaliatory action. The FSLA’s procedural rules of-

fer protection to foreign nations in our courts that make

issues of service unlikely to cause offense. These include

a generous period for the foreign nation to respond to a

summons, allowing 60 days in most cases, 28 U.S.C. §

1608(d), so even if there is some delay in transmitting a

summons overseas, the delay is unlikely to result in a de-

fault. The FSIA also requires a notice of a potential de-

fault to be served on the foreign state before the default

becomes final. Jd. § 1608(e). And as Respondent notes,

the default can be set aside if the original process is not

opened by the foreign minister in time to respond. Resp.

Br. 26 (citing, e.g., Hilt Constr. & Mgmt. Corp. v. Perma-

nent Mission of Chad to the United Nations, Civ. No. 16-

6421, 2017 WL 4480760, at *2-*3 (S.D.N.Y. Oct. 6, 2017)).

These protections make the risk of default less likely, and

serve to diffuse tensions when problems do arise. Per-

haps the surest sign that this is true is that there has not

been a retaliation already. Current U.S. policy hardly

“minimize[s]” “foreign-relations and __ reciprocal-

treatment concerns.” U.S. Br. at 28. It maximizes them.

But if the current asymmetry of the U.S. policy is not

enough to provoke retaliation, it is hard to see how rec-

ognizing the acceptability of service via embassy will

prompt any adverse reaction.

Finally, the Government correctly notes that interna-

tional law is a matter of mutually assured “reciprocity,”

U.S. Br. 25 (citation omitted), and it thus largely what we

28

make of it. That ought to make the Government con-

cerned with the signals it sends to other nations, and the

legal loopholes it introduces into its domestic laws, with

its hypermetrical and over-protective reading of interna-

tional law. The Government would do better to put aside

these concerns, and adhere to the paths of service that

Congress provided in FSIA and the obligations regard-

ing service in the treaties it has joined. In short, the Gov-

ernment should be offering more than “sympathy” for

victims and “condemn{ation]” of state terror sponsors.

U.S. Br. 1. It should be advancing a legal interpretation

that protects victims and allows them recourse.

Ill. Service via mail transmitted through a foreign

embassy is a vital option in civil suits against

state sponsors of terror.

Interpreting the Vienna Convention to provide terror

victims the option of serving a foreign state’s foreign

minister by mail routed through the country’s embassy is

important to remain consistent with the text of the Con-

vention and the principles of inviolability it embodies.

But it is also important to preserve the means of service

most likely to actually reach the foreign minister in many

cases, and to preserve civil judgments as an effective ter-

ror fighting tool.

A. The most effective way to give notice to a foreign

sovereign is often through its embassy.

The efforts of the Government and Sudan to remove

the option of mailing service packets through an embassy

builds on the assumption that this form of service is less

likely to actually make it to the foreign minister herself

than a service packet mailed directly to the foreign min-

istry. U.S. Br. 19; Pet. Br. 45.

29

That premise is unfounded. In fact, there are a varie-

ty of reasons why a service packet routed through the

embassy is more likely to arrive intact than a service

packet mailed directly to the foreign ministry. For one

thing, “the reliability of postal service may vary from

country to country.” Fed. R. Civ. P 4, Adv. Comm. Notes

to the 1963 Amendments. So in many countries, simply

addressing the packet to the foreign ministry is no guar-

anty that it will actually get there. For another, it may be

hard, especially in many transitional governments, to

know who the “foreign minister” is, or whether the “for-

eign ministry” is located at any given time. And these

problems are heightened when it comes to the highly un-

stable, often infrastructurally weak nations that tend to

resort to terror sponsorship.

Service through an embassy minimizes these prob-

lems. Foreign missions have direct lines of communica-

tions with the home country, and a pipeline to route

communications to the proper offices and officials. It is

thus no more likely that a letter will be lost in transit be-

tween the foreign ministry and the home base, as it

would be lost between the foreign-ministry’s mailroom

and the foreign minister’s office. Accordingly the Second

Circuit had good reason to believe that the option of ser-

vice via the embassy “could reasonably be expected to

result in delivery to the intended person” and that the

embassy was a “logical” location for service. J.A. 214 &

n.3.

30

B. Maintaining the option of service via embassy is

essential to protect civil suits as effective terror-

fighting tools.

Removing the option of service via the embassy will

also make terror suits much harder for plaintiffs. For the

particular plaintiffs in this case, they will be forced to

start over and try service again, further delaying any re-

covery after decades of fighting. More generally, shrink-

ing the options-box under Section 1608(a)(3) will also

play into the hands of rogue terror states in other law-

suits, giving them opportunities to plague victims with

procedural headaches. That will make terror suits even

more expensive, risky, and drawn out, which will jeopard-

ize civil suits as key weapons in the war on terrorism.

1. Prohibiting service here would sap the

vitality of civil litigation as a key weap-

on in the war on terror.

Amici have written elsewhere of the vital role that

civil litigation plays in supplementing governmental anti-

terrorism efforts. Br. of Fmr. U.S. Counterterrorism and

National Security Officials as Amici Curiae in Support of

Petitioners at 20-28, Jesner v. Arab Bank, PLC, No. 16-

449. This is because terror enterprises “rest{] on a foun-

dation of money.” See Antiterrorism Act of 1990: Hear-

ing on S. 2465 Before the Sen. Subcomm. on Courts &

Admin. Practice, 101st Cong. 84 (1990) (testimony of Jo-

seph A. Morris, former General Counsel, U.S. Infor-

mation Agency). When funds available to terrorists are

constrained, their capabilities decline. Less money is

available to maintain the high costs of terror networks

and carry out operations. And terrorists are forced to

route funds through ever more complicated, and less se-

31

cure, means, increasing the likelihood that their violent

plans will be uncovered.

Government efforts to combat terror financing have

had some success. The 9/11 Cormrsission Report, Final

Report of the National Commission on Terrorist Attacks

Upon the United States 382-383 (2004),

<http-/bit.ly/ljwpzQZ>. For instance, documents found

in Osama Bin Laden’s compound revealed that the global

efforts to restrict terrorist funding frustrated al Qaeda’s

efforts to raise and transfer money around the world.

Juan C. Zarate, Treasury’s War: The Unleashing of a

New Era of Financial Warfare ix (2013).

Yet government enforcement alone is not enough to

stanch the flow of terror funds. Limited government re-

sources mean that many terror transactions simply lie

beyond the government’s reach, despite the more than $1

trillion spent since 9/11 to combat terror. Amy Belasco,

Cong. Research Serv., RL 33110, The Cost of Iraq, Af-

ghanistan, and Other Global War on Terror Operations

Since 9/11 5 (2014), <http-//bit.ly/1IRYWgqi>.

Civil litigation provides an essential complement to

government enforcement efforts, augmenting the gov-

ernment’s capabilities without adding to the taxpayer-

borne bottom line. Civil claimants multiply the resources

available to uncover terror-funding networks, and they

possess monetary incentives that ensure that they will

find and pursue leads that might otherwise go unnoticed.

Civil litigation also provides advantages over criminal

investigation and enforcement or multinational enforce-

ment efforts, including a lower burden of proof, an ab-

sence of constitutional restrictions on investigation, and

more liberal discovery rules than government or multi-

national investigating agencies enjoy. Jimmy Gurulé, U/n-

32

funding Terror: the Legal Response to the Financing of

Global Terrorism 325 (2008) (Unfunding Terror). It will

thus come as no surprise that it was ultimately private

plaintiffs, not federal law enforcement, that brought the

Ku Klux Klan to its knees, through a string of wins in civ-

il litigation. See Jack D. Smith & Gregory J. Cooper,

Disrupting Terrorist Financing With Civil Litigation,

41 Case W. Res. J. Int’! L. 65, 77 (2009).

2. Cwwil suits targeting foreign sovereigns

are especially effective in deterring ter-

ror financing.

Suits against designated terror-supporting sover-

eigns can be especially effective in choking off funding to

terror networks. The states that actively support terror-

ism are few in number—there are currently only four:

Iran, North Korea, Sudan, and Syria. U.S. Dep’t of State,

Country Reports on Terrorism 2017 217-220 (2017 Coun-

try Report), <https://bit.ly/2xIMkHa>. But they repre-

sent some of the biggest funding sources of terror activi-

ties.

Civil litigation against such terror-supporting nations

provides a major opportunity to halt terror funding.

These nations provide a large percentage of many terror

groups’ operating budgets, so persuading even one of

them to cease funding terror would deal a major blow to

worldwide terror finance. Indeed, “while the prospect of

large monetary judgments may have little or no deter-

rent value for radical jihadists, the same may not be true

of individual donors, charitable organizations,” or, for

that matter, foreign sovereigns. Unfunding Terror 324.

And changing the behavior of these terror-sponsoring

states will likely prove easier than halting terrorists’ oth-

er sources of funding, such as drug trafficking, counter-

33

feiting, ransom, bribes, and other illegal trade. Eben

Kaplan, Council on Foreign Relations, Tracking Down

Terrorist Financing (Apr. 4, 2006)

<on.cfr.org/2i3KgOE >; Itai Zehorai, The World’s Rich-

est Terrorist Organizations, Forbes Int'l, Dec. 12, 2014,

<bit.ly/2vC8WCA>.

Since their sponsorship of terror is often as much mil-

itary strategy as political or religious ideology, e.g., U.S.

Dep’t of Def., Unclassified Annual Report on Military

Power of Iran 1-3 (2010), <http://bit.ly/2vJQsOu>. ‘hat

strategic course could change if the costs of the strategy

could be made to outweigh the benefits. This is especially

true when many of these countries have substantial as-

sets in the United States that might be attached to en-

force civil terrorism judgments, such as the estimated

$1.7 billion that Iran has here. Hr’g before the H. Sub-

comm. on the Constitution and Civil Justice on H.R.

2040, 114th Cong., 2d Sess. 68 (July 14, 2016) (Testimony

of Professor Jimmy Gurulé). Accordingly, there is some

chance that these nations’ strategic behavior will be

shaped by the prospect of massive terror-related judg-

ments. Faced with potential awards that often range in

the hundreds of millions—or even billions—of dollars,

eg., Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317

(2016) (concerning multiple judgments against Iran “to-

gether amounting to billions of dollars”), these nations

might eventually be persuaded that it is better to stop

funding terror, and join the body of legitimate nations,

than to continue funneling money to support terror activ-

ities only to face massive liabilities on top of those costs.

Moreover, for these countries, the condemnation of a civil

judgment itself will provide a meaningful disincentive.

Indeed, experts estimate that civil judgments have had a

34

noticeable impact upon the present regime in Iran, even

if they have not convinced them to change. Peterson v.

Islamic Republic of Iran, 264A F. Supp. 2d 46, 62 (D.D.C.

2003).

But civil judgments cannot have any meaningful im-

pact unless service can be effectuated. Terror-sponsoring

countries will be little dissuaded by threats of monetary

awards, no matter their size, when they can evade any

award for decades through procedural shenanigans. By

the same token, plaintiffs will not bring suit if there is no

prospect for recovery. This provides yet another reason

why FSIA section 1608(a)(3) and the Vienna Convention

should be interpreted to allow service by mail on the for-

eign minister to be routed through U.S. embassies.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted,

Counsel for Amici Curiae

September 25, 2018

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APPENDIX

William C. Banks — William C. Banks is the Board of

Advisors Distinguished Professor at Syracuse University

College of Law and Founding Director of the Institute for

National Security and Counterterrorism, a recognized

leader in research and education on national and

international security and terrorism. Professor Banks’

wide-ranging research focuses on i national security and

counterterrorism law; laws of war and asymmetric

warfare; transnational crime and corruption.

Professor Banks has served as a Special Counsel to the

US Senate Judiciary Committee (for the confirmation

hearings of Supreme Court nominee Stephen G. Breyer);

on the ABA Standing Committee on Law and National

Security; as a member of the InfraGard National

Members Alliance Board of Advisors; on the Advisory

Council for the Perpetual Peace Project; on the Executive

Board of the International Counter-Terrorism Academic

Community (ICTAC); as an Editorial Board member at

The International Centre for Counter-Terrorism in The

Hague, The Netherlands; and as a Distinguished Fellow

of the Institute for Veterans and Military Families at

Syracuse University. Banks also is the Editor-in-Chief of

the Journal of National Security Law & Policy.

Kevin Cieply — Kevin Cieply is President and Dean of

the Ave Maria School of Law and an expert on national

security law. Before his academic career, Dean Cieply

served as Chief, Legal Operations (Land), North

American Aerospace Defense Command (NORAD) and

U.S. Northern Command (NORTHCOM), concentrating

2a

on counterterrorism and Defense Support of Civilian

Authorities. He also served for more than 22 years in the

Army and Wyoming Army National Guard as a helicopter

pilot and judge advocate. In civilian life, he also worked

as Special Assistant U.S. Attorney and Senior Legal

Advisor on all military matters for the Wyoming Army

National Guard.

Jimmy Gurulé — Professor Gurulé is a tenured

member of the law faculty at Notre Dame Law School,

where he teaches courses in criminal law, international

criminal law, the law of terrorism, and national security

Law. Professor Gurulé served as Under Secretary

(Enforcement) at the U.S. Department of the Treasury,

from 2001-2003. In this capacity, he played a central role

in developing and implementing the U.S. Government’s

counterterrorist financing strategy. He also served as

Assistant Attorney General from 1990-1992 during the

administration of President George H.W. Bush. He has

published numerous books and _ articles § on

counterterrorism law and legal strategies for combating

the financing of global terrorism.

Malvina Halberstam -— Professor Halberstam is a

member of the founding faculty of the Benjamin N.

Cardozo School of Law. She has served as an assistant

district attorney, as a reporter for the American Law

Institute (Model Penal Code Project), and as a counselor

on international law for the US Department of State,

Office of the Legal Advisor. As counselor, she supervised

the State Department's comments on what became the

Restatement of U.S. Foreign Relations Law (Third) and

headed the U.S. delegation in the negotiations on the

Convention for the Suppression of Unlawful Acts Against

the Safety of Maritime Navigation, adopted in Rome in

1988.

Dennis M. Lormel — Mr. Lorme! is an international

expert addressing terrorist financing, money laundering,

fraud, and financial crimes. He amassed extensive major

case experience in the FBI while working there from 1976

through 2003, as a street agent, supervisor and senior

executive, particularly in complex finance related crimes.

In response to the terrorist attacks of September 11, 2001,

Mr. Lormel assumed responsibility for establishing,

coordinating and directing the FBI’s comprehensive

terrorist financing initiative, serving as Chief of the

Terrorist Financing Operations Section, in the

Counterterrorism Division. Mr. Lormel is a member of the

Advisory Board of the Association of Certified Anti-

Money Laundering Specialists.

Rachel E. VanLandingham - Professor Rachel BP.

VanLandingham, Lt Col (ret.), is a national security law

expert and former judge advocate in the U.S. Air Force.

She currently teaches criminal law, constitutional criminal

procedure, and national security law. During Professor

VanLandingham’s military career, she served as a military

prosecutor, criminal defense attorney, appellate defense

attorney and nuclear surety inspector, stationed in the

United States, South Korea, and Italy with deployments

to the Middle East. She was the legal advisor for

international law at Headquarters, U.S. Central

Command, where she advised on operational and

international legal issues related to the armed conflicts in

Afghanistan and Iraq. She also served as the Command's

Chief Liaison to the International Committee of the Red

Cross, and traveled throughout those countries in efforts

to improve procedural safeguards and humane treatment

standards for detainees in U.S. custody, as well as

da

provided advice to the Department of Justice regarding

habeas brought on behalf of detainees in

Afghanistan. She was the Deputy Department Head of the

Department of Law and Assistant Professor of Law at the

U.S. Air Force Academy in Colorado Springs, Colorado,

where she managed a legal department of 19 professors

and taught international law and military law courses.