El-Shifa Pharmaceutical v. United States (D.C. Cir. June 8, 2010) (en banc affirmation of dismissal of complaint)

June 16, 2010

* El Shifa Pharmaceutical v. United States (D.C. Cir. June 8, 2010) (en banc affirmation of dismissal of complaint)

For some reason this one didn’t get much attention when it came out last week. It’s actually a pretty important opinion, at least insofar as it offers the latest DC Circuit view on the political question doctrine in the context of civil suits brought in relation to military action. The opinions in the case are posted here: http://pacer.cadc.uscourts.gov/docs/common/opinions/201006/07-5174-1248589.pdf.

The case is the latest to emerge from litigation in the aftermath of the 1998 cruise missile strike against a Sudanese factory, in the aftermath of the East African embassy bombings. Here are some key excerpts from the majority opinion (Griffith, J.):

On August 7, 1998, the terrorist network headed by Osama bin Laden bombed United States embassies in Kenya and Tanzania. Hundreds were killed and thousands injured. On August 20, the United States responded by launching nearly simultaneous missile strikes against two targets: a terrorist training camp in Afghanistan and a factory in Sudan believed to be “associated with the bin Ladin network” and “involved in the production of materials for chemical weapons.”
The plaintiffs in this case are the El-Shifa Pharmaceutical Industries Company (El-Shifa), the owner of the plant, and Salah El Din Ahmed Mohammed Idris (Idris), the principal owner of El-Shifa. They allege that striking the plant was a mistake, that it “was not a chemical weapons facility, was not connected to bin Laden or to terrorism, and was not otherwise a danger to public health and safety.” Id. at 6. Instead, the plaintiffs contend, the plant was Sudan’s largest manufacturer of medicinal products, responsible for producing over half the pharmaceuticals used in Sudan. Because the case comes to us on appeal from a dismissal for lack of subject-matter jurisdiction, we take the plaintiffs’ allegations as true.

The plaintiffs have abandoned any request for monetary relief, but still seek a declaration that the government’s failure to compensate them for the destruction of the plant violated customary international law, a declaration that statements government officials made about them were defamatory, and an injunction requiring the government to retract those statements. A divided panel of this court affirmed the district court, holding that these claims are barred by the political question doctrine. See El-Shifa Pharm. Indus. Co. v. United States, 559 F.3d 578 (D.C. Cir. 2009).

Disputes involving foreign relations, such as the one before us, are “quintessential sources of political questions.” Bancoult v. McNamara, 445 F.3d 427, 433 (D.C. Cir. 2006). Because these cases raise issues that “frequently turn on standards that defy judicial application” or “involve the exercise of a discretion demonstrably committed to the executive or legislature,” Baker, 369 U.S. at 211, “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” Haig v. Agee, 453 U.S. 280, 292 (1981). “Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Baker, 369 U.S. at 211. Even in the context of military action, the courts may sometimes have a role. See Gilligan v. Morgan, 413 U.S. 1, 11–12 (1973). Therefore, we must conduct “a discriminating analysis of the particular question posed” in the “specific case” before the court to determine whether the political question doctrine prevents a claim from going forward.

We have consistently held, however, that courts are not a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security. In this vein, we have distinguished between claims requiring us to decide whether taking military action was “wise”—“a ‘policy choice[] and value determination[] constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch’”—and claims “[p]resenting purely legal issues” such as whether the government had legal authority to act. Campbell v. Clinton, 203 F.3d 19, 40 (D.C. Cir. 2000) Tatel, J., concurring) (quoting Japan Whaling, 478 U.S. at 230). Accordingly, we have declined to adjudicate claims seeking only a “determination[] whether the alleged conduct should have occurred.” Harbury v. Hayden, 522 F.3d 413, 420 (D.C. Cir. 2008). Despite some sweeping assertions to the contrary, see, e.g., Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C. Cir. 2006) (“Whatever Kissinger did as National Security Advisor or Secretary of State can hardly be called anything other than foreign policy [unreviewable under the political
question doctrine].” (internal quotation marks omitted)), the presence of a political question in these cases turns not on the nature of the government conduct under review but more precisely on the question the plaintiff raises about the challenged action. See Campbell, 203 F.3d at 40 (Tatel, J., concurring).

The conclusion that the strategic choices directing the nation’s foreign affairs are constitutionally committed to the political branches reflects the institutional limitations of the judiciary and the lack of manageable standards to channel any judicial inquiry into these matters. … We must decline to reconsider what are essentially policy choices because “[t]he Judiciary is particularly ill suited to make such decisions, as ‘courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.’” Japan Whaling, 478 U.S. at 230 (quoting United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981)). In military matters in particular, the courts lack the competence to assess the strategic decision to deploy force or to create standards to determine whether the use of force was justified or wellfounded.

The complex, subtle, and professional decisions as to the . . . control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.

Gilligan, 413 U.S. at 10. It is not the role of judges to secondguess, with the benefit of hindsight, another branch’s determination that the interests of the United States call for military action.

The case at hand involves the decision to launch a military strike abroad. Conducting the “discriminating analysis of the particular question posed” by the claims the plaintiffs press on appeal, Baker, 369 U.S. at 211, we conclude that both raise nonjusticiable political questions. The law-of-nations claim asks the court to decide whether the United States’ attack on the plant was “mistaken and not justified.” Compl. at 30. The defamation claim similarly requires us to determine the factual validity of the government’s stated reasons for the strike. If the political question doctrine means anything in the arena of national security and foreign relations, it means the courts cannot assess the merits of the President’s decision to launch an attack on a foreign target, and the plaintiffs ask us to do just that. Therefore, we affirm the district court’s dismissal of the plaintiffs’ law-of-nations and defamation claims.

Also worth reading are the concurrences by Judges Ginsburg (joined by Rogers) and Kavanaugh (joined in whole by Sentelle, and in part by Ginsburg and Rogers) which contend that the majority’s approach expands the political question doctrine in a manner that extends executive power at the expense of Congress.