Legal Commentary

Defamation by Government Still Political Question

By Jonathan H. Adler

Today the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, dismissed a lawsuit against the federal government by owners of a Sudanese pharmaceutical plant targeted by a U.S. missile strike on political question grounds.  Judge Griffith wrote the opinion for the court in El-Shifa Pharmaceutical Industries Co. v. United States, which begins:

The owners of a Sudanese pharmaceutical plant sued the United States for unjustifiably destroying the plant, failing to compensate them for its destruction, and defaming them by asserting they had ties to Osama bin Laden. The district court dismissed their complaint. A panel of this court affirmed, holding that the political question doctrine barred the plaintiffs? claims. After granting rehearing en banc, we now affirm the district court on the same ground.

Judge Ginsburg wrote an opinion concurring in the judgment, joined by Judge Rogers, as did Judge Kavanaugh, joined by Chief Judge Sentelle and Judges Ginsburg and Rogers in part.

The suit arises out of incidents from August 1998.  In response to terrorist attacks on U.S. embassies in Kenya and Tanzania, the U.S. launched a missile strike against a pharmaceutical plant in Sudan.  In a public statement, President Bill Clinton claimed the reason for the attack was that the plant was ?associated with? al Qaeda and ?involved in the production of materials for chemical weapons.?  In a letter to Congress, President Clinton further claimed the strikes ?were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities? and ?were intended to prevent and deter additional attacks by a clearly identified terrorist threat.?  Subsequent press reports cast doubts on the government?s claims, and the owners of the plant claim they never had any association with bin Laden or chemical weapons production.

The basis for dismissing the suit on political question grounds, according to the court, is that resolving the case on the merits would require judicial intrusion on the executive branch?s conduct of foreign affairs.  As Judge Griffith explained,

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. . . .

Under the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of retaliatory military action taken by the United States. Despite their efforts to characterize the case differently, that is just what the plaintiffs have asked us to do.

The judges concurring in the judgment would have affirmed the district court?s dismissal on the alternative grounds that the plaintiffs failed to allege a cognizable cause of action.

Full post as published by The Volokh Conspiracy on June 08, 2010 (boomark / email).