El-Shifa Pharmaceutical Industries Co. v. United States
607 F.3d 836, 2010 U.S. App. LEXIS 11585, 391 U.S. App. D.C. 51 (2010)
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Rule of Law:
The political question doctrine bars federal courts from adjudicating claims that require an assessment of the merits or factual basis of the President's decision to conduct a military strike against a foreign target. Such challenges are nonjusticiable because they involve policy choices and value determinations constitutionally committed to the political branches.
Facts:
- On August 7, 1998, the terrorist network al Qaeda bombed United States embassies in Kenya and Tanzania.
- In response, on August 20, 1998, President Bill Clinton ordered missile strikes against a terrorist training camp in Afghanistan and the El-Shifa pharmaceutical plant in Sudan.
- President Clinton publicly stated the El-Shifa plant was associated with Osama bin Laden's network and was involved in the production of materials for chemical weapons.
- El-Shifa Pharmaceutical Industries Company and its principal owner, Salah El Din Ahmed Mohammed Idris, alleged the plant was Sudan's largest producer of medicine and had no connection to terrorism or chemical weapons.
- Following the strike, various U.S. government officials made public statements reiterating and elaborating on the alleged ties between Idris, the plant, and Osama bin Laden.
Procedural Posture:
- El-Shifa and Idris first sued the United States in the Court of Federal Claims, alleging the destruction of the plant was an unconstitutional taking.
- The Court of Federal Claims dismissed the suit.
- The U.S. Court of Appeals for the Federal Circuit (intermediate appellate court) affirmed the dismissal, holding that the takings claim presented a nonjusticiable political question.
- Plaintiffs then brought this action in the U.S. District Court for the District of Columbia (trial court), asserting claims for negligence, trespass, violation of the law of nations, and defamation.
- The district court granted the government's motion to dismiss for lack of subject-matter jurisdiction, finding the claims barred by sovereign immunity and likely constituted a nonjusticiable political question.
- Plaintiffs appealed to the U.S. Court of Appeals for the D.C. Circuit, challenging only the dismissal of their law-of-nations and defamation claims.
- A divided three-judge panel of the D.C. Circuit affirmed the district court, holding the claims were barred by the political question doctrine.
- The D.C. Circuit then vacated the panel's judgment and granted rehearing en banc.
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Issue:
Does the political question doctrine bar federal courts from adjudicating claims that require an assessment of the factual validity and justification for the President's decision to conduct a military strike against a foreign target?
Opinions:
Majority - Judge Griffith
Yes, the political question doctrine bars federal courts from adjudicating these claims. To resolve either the law-of-nations claim or the defamation claim, the court would have to assess whether the military strike was 'mistaken and not justified,' which would require second-guessing the President's foreign policy and national security decision-making. Such decisions are constitutionally committed to the political branches, and there are no judicially manageable standards for a court to determine when military action is justified. The judiciary is ill-equipped to make such strategic determinations, and attempting to do so would show a lack of respect for the coordinate branches of government. The allegedly defamatory statements are 'inextricably intertwined' with the President's initial justification for the strike, so they are also nonjusticiable.
Concurring - Judge Ginsburg
No, the majority expands the political question doctrine beyond its proper scope, transforming it from a doctrine of 'political questions' into one of 'political decisions.' This approach improperly deems any claim nonjusticiable if it merely reflects adversely upon a decision constitutionally committed to the President. The proper course is to follow the analysis in Judge Kavanaugh's concurrence and dismiss the case because the plaintiffs have failed to allege a non-frivolous, cognizable cause of action, thus the court lacks subject-matter jurisdiction on that basis.
Concurring - Judge Kavanaugh
No, the political question doctrine should not be applied in cases involving alleged statutory violations because doing so sub silentio favors the Executive Branch over the Legislative Branch without directly confronting the relevant Article II separation of powers issues. The Supreme Court has never applied the doctrine to a statutory claim. The complaint should be dismissed because the plaintiffs' claims are legally insubstantial and fail to state a cognizable cause of action. There is no federal cause of action for defamation against the United States, and the Alien Tort Statute does not recognize a customary international law norm for compensation for mistaken wartime property destruction.
Analysis:
This decision significantly reinforces the judiciary's deference to executive authority in foreign policy and national security, particularly regarding military action. By applying the political question doctrine to bar even collateral claims like defamation, the court insulates the executive's stated justifications for military strikes from judicial scrutiny. The concurring opinions highlight a deep division on the proper use of the doctrine, arguing that the majority's approach avoids resolving cases on their legal merits and, in effect, expands executive power without proper constitutional analysis. This case serves as a key example of the modern debate over the scope of judicial review in the context of the war on terror.
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