United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 16, 2009 Decided June 8, 2010
No. 07-5174
EL-SHIFA PHARMACEUTICAL INDUSTRIES COMPANY AND
SALAH EL DIN AHMED MOHAMMED IDRIS,
APPELLANTS
v.
UNITED STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00731)
Christian G. Vergonis argued the cause for appellants.
With him on the briefs were Stephen J. Brogan, Timothy J.
Finn, and Katherine E. Stern.
Beth S. Brinkmann, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellee.
With her on the brief were Mark B. Stern and Dana J. Martin,
Attorneys.
Before: SENTELLE, Chief Judge, and GINSBURG,
HENDERSON, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH,
and KAVANAUGH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
Opinion concurring in the judgment filed by Circuit
Judge GINSBURG, with whom Circuit Judge ROGERS joins.
Opinion concurring in the judgment filed by Circuit
Judge KAVANAUGH, with whom Chief Judge SENTELLE joins,
and with whom Circuit Judges GINSBURG and ROGERS join as
to Part I.
GRIFFITH, Circuit Judge: 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.
I.
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.” President William J. Clinton, Address to the
Nation on Military Action Against Terrorist Sites in
Afghanistan and Sudan, 2 PUB. PAPERS 1460, 1461 (Aug. 20,
1998) [hereinafter Address to the Nation].
3
President Clinton addressed the American people,
explaining “the objective of this action and why it was
necessary.” Id. at 1460. “Our target was terror; our mission
was clear: to strike at the network of radical groups affiliated
with and funded by Usama bin Ladin, perhaps the preeminent
organizer and financier of international terrorism in the world
today.” Id. “The risks from inaction, to America and the
world, would be far greater than action,” the President
proclaimed, “for that would embolden our enemies, leaving
their ability and their willingness to strike us intact.” Id. at
1461.
In a letter to the Congress “consistent with the War
Powers Resolution,” the President reported that 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.” President
William J. Clinton, Letter to Congressional Leaders Reporting
on Military Action Against Terrorist Sites in Afghanistan and
Sudan, 2 PUB. PAPERS 1464, 1464 (Aug. 21, 1998). The
following day, in a radio address to the nation, President
Clinton explained his decision to take military action, stating,
“Our goals were to disrupt bin Ladin’s terrorist network and
destroy elements of its infrastructure in Afghanistan and
Sudan. And our goal was to destroy, in Sudan, the factory
with which bin Ladin’s network is associated, which was
producing an ingredient essential for nerve gas.” President
William J. Clinton, The President’s Radio Address, 2 PUB.
PAPERS 1464, 1465 (Aug. 22, 1998). Citing “compelling
evidence that the bin Ladin network was poised to strike at us
again” and was seeking to acquire chemical weapons, the
President declared that “we simply could not stand idly by.”
Id.
4
Other government officials elaborated upon the
President’s justifications for the attack on the plant. On the
day of the strike, the Secretary of Defense stated that bin
Laden “had some financial interest in contributing to this
particular facility.” Compl. at 13, El-Shifa Pharm. Indus. Co.
v. United States, 402 F. Supp. 2d 267 (D.D.C. 2005) (Civ. No.
01-731). An unnamed “senior intelligence official” asserted at
a press briefing, “[W]e know that bin Laden has made
financial contributions to the Sudanese Military Industrial
Complex[,] of which, we believe, the Shifa pharmaceutical
plant is part.” Id. And on August 23, the National Security
Advisor maintained that “Osama bin Laden was providing
key financial help for the plant.” Id.
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. See Tri-
State Hosp. Supply Corp. v. United States, 341 F.3d 571, 572
n.1 (D.C. Cir. 2003).
According to the plaintiffs, within days of the attack, the
press debunked the President’s assertions that the plant was
involved with chemical weapons and associated with bin
Laden. Confronted with their error, senior administration and
intelligence officials backpedaled, issuing what the plaintiffs
characterize as “revised” or “new justifications” for the strike
5
and conceding that any relationship between bin Laden and
the plant was “indirect.” Compl. at 17–19. Although the
United States attacked the plant without knowing who owned
it, officials learned within three days of the strike that Idris
was the owner. After that point, “unidentified U.S.
government officials” began telling reporters that Idris
maintained direct or indirect financial relations with bin
Laden, purchased the plant on bin Laden’s behalf, acted as a
front man or agent for bin Laden in Sudan, and had “ties” to
bin Laden. Id. at 19–20. The plaintiffs contend that neither the
contemporaneous nor post-hoc justifications for the attack
were true: “All of the justifications for the attack advanced by
the United States were based on false factual premises and
were offered with reckless disregard of the truth based upon
grossly incomplete research and unreasonable analysis of
inconclusive intelligence.” Id. at 7.
This lawsuit is only one of several actions the plaintiffs
pursued to recoup their losses. They also sued the United
States in the Court of Federal Claims, seeking $50 million as
just compensation under the Takings Clause of the
Constitution. The court dismissed the suit on the ground that
“the enemy target of military force” has no right to
compensation for “the destruction of property designated by
the President as enemy war-making property.” El-Shifa
Pharm. Indus. Co. v. United States, 55 Fed. Cl. 751, 774
(2003). The United States Court of Appeals for the Federal
Circuit affirmed, holding that the plaintiffs’ takings claim
raised a nonjusticiable political question. See El-Shifa Pharm.
Indus. Co. v. United States, 378 F.3d 1346, 1361–70 (Fed.
Cir. 2004), cert. denied, 545 U.S. 1139 (2005). On the
legislative front, one member of the House of Representatives
introduced a bill to compensate those who suffered injuries or
property damage in the missile strike, see H.R. 894, 107th
Cong. (2001), and a resolution directing the claims court to
6
investigate the matter and issue a report to the House, see
H.R. Res. 81, 107th Cong. (2001) (citing 28 U.S.C. §§ 1492,
2509). Both the bill and the resolution died in committee.
The plaintiffs brought this action in the United States
District Court for the District of Columbia after the CIA
denied their requests for compensation for the plant’s
destruction and for a retraction of the allegations that the
plaintiffs were involved with terrorism. The plaintiffs sought
at least $50 million in damages under the Federal Tort Claims
Act, claiming negligence in the government’s investigation of
the plant’s ties to chemical weapons and Osama bin Laden
and trespass in its destruction of the plant “without consent or
justification.” Compl. at 27. Their complaint also included a
claim under the law of nations seeking a judicial declaration
that the United States violated international law by failing to
compensate them for the unjustified destruction of their
property. Finally, the plaintiffs claimed that the President and
other senior officials defamed them by publishing false
statements linking Idris and the plant to bin Laden,
international terrorism, or chemical weapons, knowing those
statements were false or making them with reckless disregard
for their veracity. The plaintiffs sought extraordinary relief:
“[a] declaration that claims made by agents of the United
States that Mr. Idris or El-Shifa are connected to Osama bin
Laden, terrorist groups or the production of chemical weapons
are false and defamatory” and “[a]n order requiring the
United States to issue a retraction [of those claims] in the
form of a press release.” Id. at 31.
The district court granted the government’s motion to
dismiss the complaint for lack of subject-matter jurisdiction,
see FED. R. CIV. P. 12(b)(1), concluding that sovereign
immunity barred all of the plaintiffs’ claims. See El-Shifa, 402
F. Supp. 2d at 270–73. The court also noted that the complaint
7
“likely present[ed] a nonjusticiable political question.” Id. at
276. The plaintiffs filed a motion to alter the judgment with
respect to their claims for equitable relief, which the district
court denied. See El-Shifa Pharm. Indus. Co. v. United States,
No. 01-731, 2007 WL 950082 (D.D.C. Mar. 28, 2007).
The plaintiffs appealed, challenging only the dismissal of
their claims alleging a violation of the law of nations and
defamation. 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). We vacated the panel’s judgment and ordered
rehearing en banc. See El-Shifa Pharm. Indus. Co. v. United
States, 330 F. App’x 200 (D.C. Cir. 2009).
II.
“It is emphatically the province and duty of the judicial
department to say what the law is,” Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177 (1803), but some “[q]uestions, in
their nature political,” are beyond the power of the courts to
resolve, id. at 170. The political question doctrine is
“essentially a function of the separation of powers,” Baker v.
Carr, 369 U.S. 186, 217 (1962), and “excludes from judicial
review those controversies which revolve around policy
choices and value determinations constitutionally committed
for resolution to the halls of Congress or the confines of the
Executive Branch,” Japan Whaling Ass’n v. Am. Cetacean
8
Soc’y, 478 U.S. 221, 230 (1986). See also United States v.
Munoz-Flores, 495 U.S. 385, 394 (1990) (explaining that the
“doctrine is designed to restrain the Judiciary from
inappropriate interference in the business of the other
branches of Government”).
That some governmental actions are beyond the reach of
the courts reflects the Constitution’s limitation of the “judicial
power of the United States” to “cases” or “controversies.”
U.S. CONST. art. III; see DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 352 (2006) (“The doctrines of mootness, ripeness,
and political question all originate in Article III’s ‘case’ or
‘controversy’ language, no less than standing does.”);
Schlesinger v. Reservists Comm. To Stop the War, 418 U.S.
208, 215 (1974) (“[T]he concept of justiciability, which
expresses the jurisdictional limitations imposed upon federal
courts by the ‘case or controversy’ requirement of Art. III,
embodies both the standing and political question
doctrines . . . .”). “It is therefore familiar learning that no
justiciable ‘controversy’ exists when parties seek adjudication
of a political question.” Massachusetts v. EPA, 549 U.S. 497,
516 (2007).
In the seminal case of Baker v. Carr, the Supreme Court
explained that a claim presents a political question if it
involves:
[1] a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s
undertaking independent resolution without expressing
9
lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or
[6] the potentiality of embarrassment from
multifarious pronouncements by various departments
on one question.
369 U.S. at 217. “To find a political question, we need only
conclude that one [of these] factor[s] is present, not all.”
Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005).
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. Baker, 369 U.S. at 211;
see, e.g., Wilson v. Libby, 535 F.3d 697, 703–04 (D.C. Cir.
2008) (holding the political question doctrine did not bar a
challenge to disclosures “identifying a previously covert
agent” and therefore “implicat[ing] national security” because
the plaintiffs’ claims did “not challenge[] any foreign policy
10
or national security decisions entrusted to the Executive
Branch”).
In undertaking this discriminating analysis, we note, for
example, that the political question doctrine does not bar a
claim that the government has violated the Constitution
simply because the claim implicates foreign relations. See
I.N.S. v. Chadha, 462 U.S. 919 (1983) (holding the one-House
legislative veto unconstitutional despite its use in matters of
foreign affairs and the war powers). Because the judiciary is
the “ultimate interpreter of the Constitution,” Baker, 369 U.S.
at 211, in most instances claims alleging its violation will
rightly be heard by the courts. See, e.g., Chadha, 462 U.S. at
941–42 (“No policy underlying the political question doctrine
suggests that Congress or the Executive, or both acting in
concert and in compliance with Art. I, can decide the
constitutionality of a statute; that is a decision for the
courts.”). But see, e.g., Nixon v. United States, 506 U.S. 224
(1993) (whether Senate has violated its duty to “try”
impeachments presents a political question); Luther v.
Borden, 48 U.S. (7 How.) 1 (1849) (Guarantee Clause is
enforceable only by Congress). Similarly, that a case may
involve the conduct of the nation’s foreign affairs does not
necessarily prevent a court from determining whether the
Executive has exceeded the scope of prescribed statutory
authority or failed to obey the prohibition of a statute or
treaty. See Japan Whaling, 478 U.S. at 230 (“[O]ne of the
Judiciary’s characteristic roles is to interpret statutes, and we
cannot shirk this responsibility merely because” of the
“interplay” between the statute and “the conduct of this
Nation’s foreign relations.”); see, e.g., Trans World Airlines,
Inc. v. Franklin Mint Corp., 466 U.S. 243, 254 n.25 (1984)
(holding the political question doctrine does not bar
consideration of whether a Civil Aeronautics Board order is
inconsistent with the Warsaw Convention); see also David J.
11
Barron & Martin S. Lederman, The Commander in Chief at
the Lowest Ebb—Framing the Problem, Doctrine, and
Original Understanding, 121 HARV. L. REV. 689, 723 (2008)
(“If there is a party with constitutionally sufficient standing to
demand judicial protection from a presidential refusal to obey
a statute during war, it is not clear why there should be a
general rule that courts must leave the question to the political
branches.”).
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).
12
The political question doctrine bars our review of claims
that, regardless of how they are styled, call into question the
prudence of the political branches in matters of foreign policy
or national security constitutionally committed to their
discretion. A plaintiff may not, for instance, clear the political
question bar simply by “recasting [such] foreign policy and
national security questions in tort terms.” Schneider, 412 F.3d
at 197 (explaining the courts could not determine whether
taking military action was “wrongful” as an element of a
wrongful death claim). Likewise—and contrary to the
position adopted by Judge Kavanaugh—a statute providing
for judicial review does not override Article III’s requirement
that federal courts refrain from deciding political questions.
See Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972)
(“Congress may not confer jurisdiction on Art. III federal
courts . . . to resolve ‘political questions,’ because suits of this
character are inconsistent with the judicial function under Art.
III.” (internal citation omitted)); cf. Gilligan, 413 U.S. at 8–9
(stating a circuit judge “correctly read Baker v. Carr” when
he wrote that “simply order[ing] compliance with the
standards set by Congress” could “draw the courts into a
nonjusticiable political question, over which we have no
jurisdiction” (quoting Morgan v. Rhodes, 456 F.2d 608, 619
(6th Cir. 1972) (Celebrezze, J., concurring in part and
dissenting in part))); Chi. & S. Air Lines, Inc. v. Waterman
S.S. Corp., 333 U.S. 103, 111 (1948) (declining to construe a
statute to require judicial review of foreign policy decisions
“wholly confided by our Constitution to the political
departments of the government, Executive and Legislative”);
Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality
opinion) (citing Waterman for the proposition that “‘[t]he
judicial Power’ created by Article III, § 1, of the Constitution
is not whatever judges choose to do or even whatever
Congress chooses to assign them” (citations omitted)). For
example, in reviewing the Secretary of State’s designation of
13
a group as a “foreign terrorist organization” under the
Antiterrorism and Effective Death Penalty Act, 8 U.S.C. §
1189 (2006), we may decide whether the government has
followed the proper procedures, whether the organization is
foreign, and whether it has engaged in terrorist activity, but
we may not determine whether “the terrorist activity of the
organization threatens the security of United States nationals
or the national security of the United States,” id.
§ 1189(a)(1)(C). See People’s Mojahedin Org. of Iran v. U.S.
Dep’t of State (PMOI), 182 F.3d 17, 22–24 (D.C. Cir. 1999).
Whether this last criterion has been met presents a
nonjusticiable political question because the Secretary’s
assessments of whether the terrorist activities of foreign
organizations constitute threats to the United States “are
political judgments, ‘decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility and
have long been held to belong in the domain of political
power not subject to judicial intrusion or inquiry.’” PMOI,
182 F.3d at 23 (quoting Waterman, 333 U.S. at 111). Neither
a common law nor statutory claim may require the court to
reassess “policy choices and value determinations” the
Constitution entrusts to the political branches alone. Japan
Whaling, 478 U.S. at 230.
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. See generally Nixon, 506
U.S. at 228–29 (“[T]he concept of a textual commitment to a
coordinate political department is not completely separate
from the concept of a lack of judicially discoverable and
manageable standards for resolving it; the lack of judicially
manageable standards may strengthen the conclusion that
there is a textually demonstrable commitment to a coordinate
14
branch.”). 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 well-
founded.
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 second-
guess, 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
15
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.
A.
The plaintiffs’ complaint asserts that customary
international law requires states to compensate foreign
nationals for property destruction that is “mistaken and not
justified.” The United States purportedly violated this norm
when the CIA denied the plaintiffs’ request for compensation
for the destruction of the plant. See id. at 29–30. Because we
hold this claim barred by the political question doctrine, we
need not decide whether customary international law requires
compensation in these circumstances, or, if so, whether the
plaintiffs have adequately stated a federal cause of action. See
generally Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).
We begin our analysis with the rule we have already
identified and upon which both parties agree: courts cannot
reconsider the wisdom of discretionary foreign policy
decisions. See Appellants’ En Banc Br. at 22. The plaintiffs’
law-of-nations claim falls squarely within this prohibition
because it would require us to declare that the bombing of the
El-Shifa plant was “mistaken and not justified.” Whether an
attack on a foreign target is justified—that is whether it is
warranted or well-grounded—is a quintessential “policy
choice[] and value determination[] constitutionally committed
for resolution to the halls of Congress or the confines of the
Executive Branch.” Japan Whaling, 478 U.S. at 230. The
plaintiffs appear to recognize this. On appeal they imply that
they need only prove the United States failed to compensate
16
them for an attack that was “mistaken.” See Appellants’ En
Banc Br. at 49–54 & n.6; see also id. at 53 (conceding that
“whether the attack was reasonable and justified when it
occurred” presents a “nonjusticiable question”). By asserting
the El-Shifa bombing was “mistaken,” the plaintiffs
apparently mean that the United States would not have
launched the strike if the relevant decisionmakers knew at the
time what they allegedly know now—that the plant was
neither involved in producing chemical weapons nor
associated with bin Laden. See id. at 9 (describing the plant as
“targeted in error”); id. at 14 (arguing the bombing was
mistaken because “evidence [has] emerged that the plant was
in fact innocent property”). But the political question doctrine
does not permit us to mimic the constitutional role of the
political branches by guessing how they would have
conducted the nation’s foreign policy had they been better
informed. Whether the circumstances warrant a military
attack on a foreign target is a “substantive political
judgment[] entrusted expressly to the coordinate branches of
government,” Gilligan, 413 U.S. at 11, and using a judicial
forum to reconsider its wisdom would be anathema to the
separation of powers. Undertaking a counterfactual inquiry
into how the political branches would have exercised their
discretion had they known the facts alleged in the plaintiffs’
complaint would be to make a political judgment, not a legal
one.
Moreover, Baker’s prudential considerations counsel
judicial restraint as well. First, the court lacks judicially
manageable standards to adjudicate whether the attack on the
El-Shifa plant was “mistaken and not justified.” See Baker,
369 U.S. at 217; cf. Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 490–91 (1999) (explaining the courts
are “ill equipped to determine the[] authenticity and utterly
unable to assess the[] adequacy” of the government’s “reasons
17
for deeming nationals of a particular country a special
threat”). We could not decide this question without first
fashioning out of whole cloth some standard for when
military action is justified. The judiciary lacks the capacity for
such a task. As we once said of a claim that certain covert
operations were “wrongful,” “There are no [judicially]
discoverable and manageable standards for the resolution of
such a claim.” Schneider, 412 F.3d at 197; see also id. (“To
determine whether drastic measures should be taken in
matters of foreign policy and national security is not the stuff
of adjudication, but of policymaking.”). Second, the decision
to take military action is a “policy determination of a kind
clearly for nonjudicial discretion.” Baker, 369 U.S. at 217.
Such foreign policy decisions are “delicate, complex, and
involve large elements of prophecy. . . . They are decisions of
a kind for which the Judiciary has neither aptitude, facilities
nor responsibility . . . .” Waterman, 333 U.S. at 111. In short,
the decision to launch the military attack on the El-Shifa plant
was constitutionally committed to the political branches, see,
e.g., U.S. CONST. art. I, § 8, cl. 11; id. art. II, § 2, cl. 1; see
also Schneider, 412 F.3d at 194–95, and this court is neither
an effective nor appropriate forum for reweighing its merits.
See Harbury, 522 F.3d at 420. Because the plaintiffs’ law-of-
nations claim requires the court to second-guess that decision,
we conclude that it presents a nonjusticiable political
question.
Indeed, the law-of-nations claim suffers from flaws
similar to those the Federal Circuit identified in the plaintiffs’
previous claim that the bombing was a taking because it was
mistaken. As the Federal Circuit explained, “In
essence . . . the [plaintiffs] are contending that the President
failed to assure himself with a sufficient degree of certainty”
of the factual basis for his decision to strike the plant. El-
Shifa, 378 F.3d at 1365. The plaintiffs would have the federal
18
courts “provide them with an opportunity to test that
contention, and in the process, require this court to elucidate
the . . . standards that are to guide a President when he
evaluates the veracity of military intelligence.” Id. This we
cannot do.
In refusing to declare the El-Shifa attack “mistaken and
not justified,” we do not mean to imply that the contrary is
true. We simply decline to answer a question outside the
scope of our authority. By requiring that we reserve judgment,
the political question doctrine protects the Congress and the
Executive from judicial “invasion of their sphere,” Antolok v.
United States, 873 F.2d 369, 383 (D.C. Cir. 1989) (opinion of
Sentelle, J.), and guards against “the reputation of the Judicial
Branch [being] ‘borrowed by the political Branches to cloak
their work in the neutral colors of judicial action,’” PMOI,
182 F.3d at 25 (quoting Mistretta v. United States, 488 U.S.
361, 407 (1989)).
B.
The plaintiffs also claim that anonymous government
officials defamed them by making statements linking them to
bin Laden and international terrorism. This claim fares no
better than their law-of-nations claim. It too would require the
court to reconsider the merits of the decision to strike the El-
Shifa plant by determining whether the government’s
justifications for the attack were false. See RESTATEMENT
(SECOND) OF TORTS § 558(a) (1977).
We begin by noting that the court cannot judge the
veracity of the President’s initial public explanations for the
attack for the same reasons we cannot examine whether the
attack was “mistaken and not justified.” The President’s
statements justifying the attack are “inextricably intertwined”
with a foreign policy decision constitutionally committed to
19
the political branches, Bancoult, 445 F.3d at 436, because
determining whether the President’s statements were true
would require a determination “whether the alleged conduct
should have occurred,” Harbury, 522 F.3d at 420. A decision
in favor of the plaintiffs would unavoidably involve a
rejection of the Clinton Administration’s stated justifications
for launching the missile strike. A decision against the
plaintiffs would affirm the wisdom of the Administration’s
decision to attack.
The plaintiffs maintain, however, that even if the political
question doctrine bars review of the President’s initial
justifications for the attack, the court may nevertheless judge
the veracity of the subsequent justifications, which, they
allege, offer different explanations for the strike. These
allegedly defamatory statements are reviewable, the plaintiffs
contend, because they do not state “the actual justification for
the decision to attack the plant.” Appellants’ En Banc Reply
Br. at 3. Rather, the plaintiffs allege that these statements are
“post hoc pretext”—defamatory efforts at political damage
control. Id.; see also Compl. at 1 (stating the action arises out
of “false and defamatory statements made by United States
government officials seeking to justify” the destruction of the
plant); Compl. at 21–22 (alleging “government officials
continued to justify their actions with statements intended to
suggest that Mr. Idris was, in fact, associated with
terrorism.”). According to the plaintiffs, we can review these
later justifications for the attack because they bear no relation
to the President’s initial justifications—that the plant was
associated with bin Laden and involved in producing
chemical weapons.
We disagree. The allegedly defamatory statements cannot
be severed from the initial justifications for the attack. The
court cannot adjudicate the truth of the government’s later
20
justifications because, despite the plaintiffs’ arguments to the
contrary, they are fundamentally the same as the initial
justifications. In reaching this conclusion, we need look no
further than the plaintiffs’ complaint. Taking all of its
allegations as true, we find no material difference between the
allegedly defamatory statements and the President’s
contemporaneous explanation of his decision to take military
action. On the day the United States destroyed the El-Shifa
plant, President Clinton told the American people that he
ordered the strike in part because the plant was “associated
with the bin Laden network” and was a “chemical weapons-
related facility.” Compl. at 7, 13; see also Address to the
Nation, 2 PUB. PAPERS at 1461; President William J. Clinton,
Remarks in Martha’s Vineyard, Massachusetts, on Military
Action Against Terrorist Sites in Afghanistan and Sudan, 2
PUB. PAPERS 1460, 1460 (Aug. 20, 1998). In their prayer for
relief, the plaintiffs describe the allegedly defamatory
statements as “claims . . . that Mr. Idris or El-Shifa are [sic]
connected to Osama bin Laden, terrorist groups or the
production of chemical weapons.” Compl. at 31; see also id.
at 19 (detailing “numerous statements to news reporters
falsely describing Salah Idris as an associate of Osama bin
Laden and international terrorist organizations”). This
characterization of the allegedly defamatory statements
closely tracks the President’s own description of his reasons
for launching the attack.
All of the allegedly defamatory statements essentially
repeat the President’s initial justification for the strike. Each
describes a connection between bin Laden and the plant
through its owner, Salah Idris. For example, “U.S.
intelligence officials” stated Idris dealt financially with
members of Islamic Jihad, which had been “absorbed into
[bin Laden’s] terror network.” Id. at 20. And government
officials claimed “the owner and manager of the plant
21
were . . . front men for bin Laden.” Id.; see also id. at 19
(citing a “Washington official” describing Idris as “a partner
with bin Laden in other Sudanese businesses”); id. at 19–20
(quoting “one official” asserting that Idris “may have”
purchased the El-Shifa plant “on bin Laden’s behalf” and
“that he’s involved in money laundering, that he’s involved in
representing a lot of bin Laden’s interests in Sudan”).
Contrary to the plaintiffs’ contentions, these statements do not
represent a break from the President’s contemporaneous
explanation of his reasons for launching the strike. At most,
they elaborate upon the nature of the connection between the
plant and bin Laden—a connection the President offered on
the day of the attack as one reason for taking military action.
Declaring these later statements true or false would require us
to make the same judgment about the President’s initial
justification for the attack.
The plaintiffs contend that Idris’s alleged ties to bin
Laden—the factual issue at the heart of their defamation
claim—could not have played any part in the decision to
bomb the plant because, at the time of the strike, the United
States thought the plant was owned by the Sudanese
government and not by Idris. Therefore, they argue, the court
could declare the government’s allegations that Idris was
connected to bin Laden false without undermining the
government’s actual justifications for the attack. See
Appellants’ En Banc Br. at 25; Appellants’ En Banc Reply
Br. at 2–3. To be sure, at least one anonymous official had
previously suggested the plant belonged to the Sudanese
Military Industrial Complex. See Compl. at 13. But this is
beside the point. As the plaintiffs conceded before the en banc
court, “[T]he owner of the plant was immaterial to [President
Clinton’s] decision to attack the plant.” Oral Arg. Recording
at 11:48–:51. The President explained that the United States
targeted the plant because it was associated with bin Laden,
22
and officials continued to assert that same rationale when they
told reporters the plant’s owner was financially linked to bin
Laden’s network. A court’s pronouncement that the plant’s
owner had no financial ties to bin Laden would directly
contradict the government’s justification for the attack by
disclaiming the asserted association between the plant and the
bin Laden network.
The plaintiffs further argue that the political question
doctrine does not block their defamation claim because “by
the government’s own admission, the accusations challenged
as defamatory formed no part of the decision to attack the
plant.” Appellants’ En Banc Br. at 24 (emphasis added). But
none of the statements quoted in the complaint imply such an
admission. The plaintiffs rely on one statement, which
referenced “[n]ew evidence obtained since the attack.” See id.
at 24–25 (quoting Compl. at 19). The rest of the statement,
however, makes clear that their reliance is misplaced: “New
evidence obtained since the attack, one official said . . . , starts
to make the link between the plant’s current owner,
Salaheldin Idris, and bin Laden ‘more direct.’” Compl. at 19.
The official’s assertion that new evidence made the
connection between bin Laden and Idris “more direct” does
not give rise to an inference, as the plaintiffs suggest, that
there was no prior evidence of such a nexus. Indeed, the
statement of another anonymous official quoted in the
complaint suggests that the newer evidence merely
corroborated the evidence existing at the time of the attack.
See id. at 20 (quoting an anonymous official’s statement that
intelligence collected after the strike “increasingly points to
ties with (Osama) bin Laden” (emphasis added)). This
emphasizes that the veracity of the allegedly defamatory
statements is “inextricably intertwined,” Bancoult, 445 F.3d at
436, with the merits of the actual justifications for the attack
23
and underscores the nonjusticiability of the plaintiffs’
defamation claim.
C.
We conclude our political question analysis by
addressing the plaintiffs’ argument that they are asking
nothing more than that we review the government’s
designation of them as supporters of the nation’s enemies,
something courts have done in other contexts. See Appellants’
En Banc Br. at 23–30. This argument fails.
The plaintiffs point first to cases permitting judicial
review of the enemy status of persons detained after being
seized by the U.S. military on the battlefield. See, e.g.,
Boumediene v. Bush, 128 S. Ct. 2229 (2008); Parhat v. Gates,
532 F.3d 834 (D.C. Cir. 2008). But the political question
doctrine does not preclude judicial review of prolonged
Executive detention predicated on an enemy combatant
determination because the Constitution specifically
contemplates a judicial role in this area. See Boumediene, 128
S. Ct. at 2247 (“The [Suspension] Clause protects the rights of
the detained by affirming the duty and authority of the
Judiciary to call the jailer to account.” (emphasis added));
Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (discussing the
courts’ “time-honored and constitutionally mandated roles of
reviewing and resolving claims” of citizens challenging their
military detention). The plaintiffs can point to no comparable
constitutional commitment to the courts for review of a
military decision to launch a missile at a foreign target. Cf.
Bancoult, 445 F.3d at 437 (“[W]hile the presence of
constitutionally-protected liberties could require us to address
limits on the foreign policy and national security powers
assigned to the political branches, no such constitutional
claims are at issue in this case.”).
24
The plaintiffs also point to another line of cases in which
courts have reviewed Executive Branch determinations that a
certain asset is “enemy property” or belongs to a terrorist
organization and therefore is eligible for seizure pursuant to
statute. See, e.g., Chai v. Dep’t of State, 466 F.3d 125 (D.C.
Cir. 2006); Holy Land Found. for Relief & Dev. v. Ashcroft,
333 F.3d 156 (D.C. Cir. 2003); Von Zedtwitz v. Sutherland, 26
F.2d 525 (D.C. Cir. 1928); Bond v. United States, 2 Ct. Cl.
529 (1866). These cases are not helpful to the plaintiffs for the
same reasons the detainee cases are not. None required the
courts to scrutinize a decision constitutionally committed
wholly to the political branches. Indeed, the Supreme Court
has suggested that judicial review of enemy-property
designations made to effect statutorily authorized asset
seizures is constitutionally mandated. See Societe
Internationale pour Participations Industrielles et
Commerciales, S. A. v. Rogers, 357 U.S. 197, 210–11 (1958)
(“[The] summary power to seize property which is believed to
be enemy-owned is rescued from constitutional invalidity
under the Due Process and Just Compensation Clauses of the
Fifth Amendment only by those provisions of the Act which
afford a non-enemy claimant a later judicial hearing as to the
propriety of the seizure.”); cf. Bancoult, 445 F.3d at 435
(“[C]laims based on the most fundamental liberty and
property rights of this country’s citizenry, such as the Takings
and Due Process Clauses of the Fifth Amendment, are
justiciable, even if they implicate foreign policy decisions.”
(internal quotation marks and citations omitted)). No
comparable constitutional commitment to the judiciary exists
in this case. See Paul v. Davis, 424 U.S. 693, 701 (1976)
(holding that defamation by the government, when it harms
“reputation alone,” does not constitute a deprivation of liberty
or property under the Due Process Clause). The plaintiffs do
not ask whether the government’s conduct was prohibited by
the Constitution. Instead, they seek declarations that the
25
President should not have launched a military strike that the
plaintiffs deem unwise and ill founded, and an injunction
requiring the government to retract its justifications for the
attack. The Constitution denies the courts the ability to grant
such extraordinary relief.
III.
Our colleagues agree that the district court lacked
jurisdiction but would affirm on a different ground. Their
proposed alternative relies on the rule that federal courts lack
jurisdiction to hear legally “insubstantial” claims. The
Supreme Court and this court have applied this rule narrowly,
setting a high bar for dismissal that plaintiffs’ claims do not
meet.
“Dismissal for lack of subject-matter jurisdiction because
of the inadequacy of [a] federal claim is proper only when the
claim is so insubstantial, implausible, foreclosed by prior
decisions of [the Supreme] Court, or otherwise completely
devoid of merit as not to involve a federal controversy.” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)
(internal quotation marks omitted). But see, e.g., Rosado v.
Wyman, 397 U.S. 397, 404 (1970) (characterizing this
doctrine as “more ancient than analytically sound”). This
ground for jurisdictional dismissal “is, as a general matter,
reserved for complaints resting on truly fanciful factual
allegations,” Best v. Kelly, 39 F.3d 328, 331 n.5 (D.C. Cir.
1994), but also has some limited application to claims resting
on insubstantial legal theories.
[L]egal claims may be so insubstantial as to deprive
federal courts of jurisdiction if “prior decisions
inescapably render the claims frivolous.” Hagans [v.
Lavine, 415 U.S. 528, 538 (1974)]. That said,
“previous decisions that merely render claims of
26
doubtful or questionable merit do not render them
insubstantial.” Id. Thus, to qualify as insubstantial, a
claim’s “unsoundness [must] so clearly result[] from
the previous decisions of [the Supreme Court] as to
foreclose the subject and leave no room for the
inference that the question sought to be raised can be
the subject of controversy.” Ex parte Poresky, 290
U.S. 30, 32 (1933) (internal quotation marks omitted).
Ord v. District of Columbia, 587 F.3d 1136, 1144 (D.C. Cir.
2009) (some alterations in original).
Plaintiffs’ claims are not so unsound as to warrant
dismissal on this jurisdictional ground. There is “room for the
inference that the question[s] sought to be raised can be the
subject of controversy.” Poresky, 290 U.S. at 32; see, e.g., El-
Shifa, 559 F.3d at 591–92 (Ginsburg, J., dissenting) (“Some
of our cases do imply a plaintiff may obtain a retraction from
the United States for defamation by one of its officers. . . .
Federal rather than D.C. common law likely governs Idris’s
claim . . . .”). Perhaps the district court would have dismissed
plaintiffs’ claims for failure to state a claim under Rule
12(b)(6) had the case proceeded to the merits. But whether a
claim is so insubstantial as to deprive the federal courts of
jurisdiction is a “separate question from whether a complaint
is subject to dismissal under Federal Rule of Civil Procedure
12(b)(6) for failing to state a claim on which relief may be
granted.” Ord, 587 F.3d at 1144. The cases relied upon by the
concurrence might “render [plaintiffs’] claims of doubtful or
questionable merit,” but they do not “foreclose the subject”
and therefore “do not render them insubstantial.” Id. at 1144
(quoting Hagans, 415 U.S. at 538, and Poresky, 290 U.S. at
32). “Jurisdiction . . . is not defeated . . . by the possibility that
the averments might fail to state a cause of action on which
27
petitioners could actually recover.” Bell v. Hood, 327 U.S.
678, 682 (1946).
IV.
Our concurring colleagues charge the court with “sub
silentio expand[ing] executive power.” Concurring Op. of
Judge Ginsburg at 3 (quoting Concurring Op. of Judge
Kavanaugh at 11). To the contrary, it is they who would work
a sub silentio expansion. By asserting the authority to decide
questions the Constitution reserves to Congress and the
Executive, some would expand judicial power at the expense
of the democratically elected branches. And by stretching
beyond all precedent the limited category of claims so
frivolous as not to involve a federal question, all would permit
courts to decide the merits of disputes under the guise of a
jurisdictional holding while sidestepping obstacles that are
truly jurisdictional.
Straightforward application of our precedent makes clear
that the plaintiffs face such an obstacle here. 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 district court’s dismissal of
their claims is
Affirmed.
GINSBURG, Circuit Judge, with whom Circuit Judge
ROGERS joins, concurring in the judgment: I join Part I of
Judge Kavanaugh‟s opinion concurring in the judgment
because the plaintiffs have not alleged a non-frivolous cause
of action; I write separately to make an additional point about
the opinion for the Court. That opinion expands the political
question doctrine well beyond the bounds delineated in Baker
v. Carr, 369 U.S. 186 (1962), and the Court‟s need to
consider whether application of the political question doctrine
in a statutory case threatens the separation of powers arises
only because of that unwarranted expansion.
The Court today expands the political question doctrine
by reading into several of our recent cases something of a new
political decision doctrine. On that approach, we are first to
identify some “conduct” or “decision” (the opinion alternates)
constitutionally committed to the Executive and then to ask
whether the plaintiff‟s “claim[] ... call[s] into question,”
“require[s] the court to reassess,” or is “inextricably
intertwined with” that Executive conduct or decision. Op. at
12, 13, 18. If so, then the claim is non-justiciable, regardless
whether the court would actually have to decide a political
question in order to resolve it.
The Court‟s approach departs sharply from that
prescribed in Baker v. Carr, which calls for a “discriminating
inquiry into the precise facts and posture of the particular
case” in order to detect “a political question‟s presence,” 369
U.S. at 217; unless there is such a question and it is
“inextricable from the case at bar,” id., then we are to decide
it, even if “our decision may have significant political
overtones.” Japan Whaling Ass’n v. Am. Cetacean Soc., 478
U.S. 221, 230 (1986); see also Campbell v. Clinton, 203 F.3d
19, 40 (D.C. Cir. 2000) (Tatel, J., concurring) (“Resolving the
issue in this case would require us to decide not whether the
air campaign was wise ... but whether the President possessed
legal authority to conduct the military operation”). The
2
innovation adopted by the Court contravenes the Supreme
Court‟s teaching that “[t]he doctrine of which we treat is one
of „political questions,‟ not one of „political cases.‟” Baker,
369 U.S. at 217.
If the Court today followed Baker v. Carr, then there
would be no occasion to consider whether the application of
the political question doctrine in a statutory case threatens the
separation of powers by, as Judge Kavanaugh says,
“systematically favor[ing] the Executive Branch over the
Legislative Branch,” Op. at 10. Under Baker v. Carr a
statutory case generally does not present a non-justiciable
political question because “the interpretation of legislation is a
„recurring and accepted task for the federal courts.‟” Id. at 9
(quoting Japan Whaling, 478 U.S. at 230). For rare
exceptions in which a statute called for a decision
constitutionally committed to the President and hence not
subject to judicial review, see Chicago & Southern Air Lines,
Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948), and
People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182
F.3d 17, 23 (D.C. Cir. 1999) (“Of the three findings mandated
by [the Statute, Secretary of State‟s finding that an
organization‟s terrorist activity threatens national security] ...
is nonjusticiable”).
Under the Court‟s new political decision doctrine,
however, even a straightforward statutory case, presenting a
purely legal question, is non-justiciable if deciding it could
merely reflect adversely upon a decision constitutionally
committed to the President. Compare, e.g., Zivotofsky v.
Sec’y of State, 571 F.3d 1227, 1234-35 (2009) (Edwards, J.,
concurring) (“The Secretary‟s first argument — that
Zivotofsky‟s claim is a nonjusticiable political question — is
specious. ... These questions involve commonplace issues of
statutory and constitutional interpretation, and they are plainly
3
matters for the court to decide.”) with id. at 1232 (Griffith, J.,
for the court) (plaintiff “invites the courts to call into question
the President‟s exercise of the recognition power. This we
cannot do. We therefore hold [his statutory] claim presents a
nonjusticiable political question because it trenches upon the
President‟s constitutionally committed recognition power.”).
As Judge Kavanaugh notes, such a holding “sub silentio
expand[s] executive power [at the expense of the
legislature].” Op. at 11. The result of staying the judicial
hand is to upset rather than to preserve the constitutional
allocation of powers between the executive and the
legislature.
KAVANAUGH, Circuit Judge, with whom Chief Judge
SENTELLE joins, and with whom Circuit Judges GINSBURG
and ROGERS join as to Part I, concurring in the judgment:
In August 1998, President Clinton ordered the U.S.
military to bomb both the El-Shifa factory in Sudan and al
Qaeda training camps in Afghanistan. The goals were to kill
leaders of al Qaeda and to destroy al Qaeda infrastructure.
President Clinton explained to Congress and the American
people that he ordered the bombings in furtherance of the
Nation’s “inherent right of self-defense” in the wake of al
Qaeda attacks on U.S. property and personnel in Kenya and
Tanzania. As authority for the bombings, President Clinton
cited his Commander-in-Chief power under Article II of the
Constitution.
Plaintiffs El-Shifa Pharmaceutical Industries Company
and its owner, Salah Idris, allege that their factory in Sudan
was wrongly destroyed in the bombings and that they were
reputationally harmed by later Executive Branch statements
linking them to Osama bin Laden. As relevant here, they
have brought a federal defamation claim and an Alien Tort
Statute claim against the United States.
The Government correctly contends that plaintiffs have
not alleged a cognizable cause of action; indeed, plaintiffs
have not come close. Plaintiffs’ complaint should be
dismissed on that basis alone, as Part I of this opinion
explains. But the majority opinion instead relies on the
political question doctrine to dismiss the complaint. I
disagree with the majority opinion’s political question
analysis, as Part II of this opinion spells out.
I
Federal courts lack subject matter jurisdiction over claims
that are “so insubstantial, implausible, foreclosed by prior
2
decisions of this Court, or otherwise completely devoid of
merit as not to involve a federal controversy.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (internal
quotation marks omitted). Plaintiffs’ two claims in this case
fall into that category.
El-Shifa Pharmaceutical Industries Company operated a
factory in Sudan that was bombed in August 1998 by the
United States military, at the specific direction of President
Clinton. In later press reports, anonymous U.S. Government
officials were quoted as linking El-Shifa and its owner, Idris,
to Osama bin Laden. El-Shifa and Salah Idris then sued the
United States, advancing two claims of relevance here. First,
to obtain relief for the allegedly false statements by
Government officials that had linked plaintiffs to bin Laden,
plaintiffs raised a federal defamation claim against the United
States. The problem for plaintiffs is that there is no federal
cause of action for defamation available against the United
States. Second, plaintiffs claimed that the failure of the
United States to compensate them for the allegedly mistaken
bombing and destruction of their property violated a
customary international law norm recognized under the Alien
Tort Statute, 28 U.S.C. § 1350. But plaintiffs have cited no
customary international law norm that would require
compensation by the United States under the Alien Tort
Statute for mistaken war-time bombings.
A
First, plaintiffs assert a federal defamation claim against
the United States. There is no such cause of action.
Congress has enacted a number of causes of action that
can be brought against the United States or against
Government officials for acts taken in their official capacities.
3
See, e.g., Administrative Procedure Act, 5 U.S.C. § 500 et
seq.; Federal Tort Claims Act, 28 U.S.C. § 1346; Westfall
Act, 28 U.S.C. § 2679; Tucker Act, 28 U.S.C § 1491, 28
U.S.C. § 1346(a)(2). But Congress has not created a
defamation cause of action against the United States.
Moreover, the Supreme Court has never recognized a
federal common-law defamation cause of action against the
United States. Indeed, the Court has not endorsed any federal
common-law causes of action against the Government during
the post-Erie period. And the Court several times has
expressly declined to do so, noting that creation of new causes
of action is a function typically best left to Congress. See,
e.g., U.S. Postal Serv. v. Flamingo Indus., 540 U.S. 736, 744-
45 (2004); Alexander v. Sandoval, 532 U.S. 275, 287 (2001);
O’Melveny & Myers v. FDIC, 512 U.S. 79, 88 (1994); FDIC
v. Meyer, 510 U.S. 471, 483-86 (1994); United States v.
California, 507 U.S. 746, 759-60 (1993); United States v.
Standard Oil Co., 332 U.S. 301, 313-16 (1947).
Plaintiffs cite three cases from this Court to support their
argument that there is a federal common-law cause of action
for defamation available against the United States. See U.S.
Info. Agency v. Krc, 989 F.2d 1211, 1216 (D.C. Cir. 1993);
Cmty. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672
(D.C. Cir. 1987); Expeditions Unlimited Aquatic Enters. v.
Smithsonian Inst., 566 F.2d 289, 294 n.16 (D.C. Cir. 1977)
(en banc). But none of those decisions holds that there is such
a federal common-law cause of action.
In this Court, plaintiffs also attempt to argue that the
Administrative Procedure Act supplies a cause of action for
defamation. But that, too, is wrong; the APA contains no
cause of action for defamation. Moreover, plaintiffs cannot
use the APA – which, as relevant here, prohibits executive
4
action that is “not in accordance with law” – to vindicate a
purported federal common-law right that does not exist. 5
U.S.C. § 706(2)(a); see also Sea-Land Serv., Inc. v. Alaska
R.R., 659 F.2d 243, 245 (D.C. Cir. 1981).
In addition to a federal common-law cause of action,
plaintiffs might also be alleging a purported state common-
law cause of action against the United States, although their
complaint never quite says as much. Even so, any such state-
law cause of action may not be brought against the United
States absent congressional authorization to that effect. Cf.
Tarble’s Case, 80 U.S. 397, 406 (1871); Barr v. Matteo, 360
U.S. 564, 569-71 (1959) (federal officers acting in their
official capacities have immunity from suit, including against
state-law defamation suits). In our constitutional system, the
states do not regulate the Federal Government, either directly
or through state tort law, at least absent congressional
consent. U.S. CONST. art. VI, cl. 2. The FTCA and Westfall
Act do expressly borrow (or permit) state tort causes of action
against the United States in certain carefully defined
circumstances. But those statutes do not apply here, as
plaintiffs concede. And contrary to plaintiffs’ inventive
arguments, the APA does not borrow state law or permit state
law to be used as a basis for seeking injunctive or declaratory
relief against the United States. As counsel for the
Government succinctly and correctly stated at oral argument:
“State tort law doesn’t run against the United States, so it’s
not a federal law that can be pointed to as a substantive law
which is being transgressed for an APA cause of action.” Tr.
of Oral Arg. at 52; see In re Supreme Beef Processors, Inc.,
468 F.3d 248, 255 (5th Cir. 2006).1
1
Plaintiffs have not contended that the relevant agency actions
were arbitrary and capricious under the APA. Even if they had,
they would face a variety of hurdles – including 5 U.S.C.
5
B
Plaintiffs also seek a declaration that the United States
violated customary international law, as cognizable under the
Alien Tort Statute, 28 U.S.C. § 1350, because the United
States failed to compensate plaintiffs for the allegedly
mistaken destruction of their property.
The Alien Tort Statute, or ATS, authorizes suits brought
“by an alien for a tort only, committed in violation of the law
of nations or a treaty of the United States.” 28 U.S.C. § 1350.
The ATS covers “a relatively modest set of actions alleging
violations of the law of nations” – including certain norms
established as of 1789, which the Court identified as
“violation of safe conducts, infringement of the rights of
ambassadors, and piracy.” Sosa v. Alvarez-Machain, 542
U.S. 692, 720, 724 (2004). The ATS may encompass other
established customary international law norms so long as they
do not have “less definite content and acceptance among
civilized nations than the historical paradigms familiar when
§ 1350 was enacted” in 1789. Id. at 732.
Plaintiffs allege that the actions of the United States
violated an established customary international law norm –
namely, “the obligation of a government to compensate
citizens of other nations for the mistaken destruction of their
innocent property.” El-Shifa Br. at 49 n.6. But plaintiffs cite
no authority suggesting that the mistaken destruction of
property during extraterritorial war-related activities – or
§ 701(a)(2), which exempts from APA review agency action that is
committed to agency discretion by law. Furthermore, any such
APA claim would rest on the proposition that the statements of
anonymous officials constitute final agency action. See 5 U.S.C. §
704. There is no support in our precedents for that conclusion.
6
denial of an administrative claim seeking compensation for
the same – violates an established norm of customary
international law. Furthermore, “the determination whether a
norm is sufficiently definite to support a cause of action
should (and, indeed, inevitably must) involve an element of
judgment about the practical consequences of making that
cause available to litigants in the federal courts.” Sosa, 542
U.S. at 732-33. If the plaintiffs were correct, the federal
courts presumably would be flooded with ATS claims – at a
minimum, claims seeking declaratory relief for alleged
violations of customary international law norms – against the
United States for allegedly mistaken property damage in
every war, including the ongoing wars in Iraq and
Afghanistan. Plaintiffs provide no persuasive reason for the
federal judiciary to embark on such a novel and far-reaching
endeavor in the absence of congressional direction.
In short, plaintiffs’ attorneys have worked hard to find
some basis in law for plaintiffs’ complaint. But they have
located no such basis: Plaintiffs’ two claims are “so
insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit as not to
involve a federal controversy.” Steel Co., 523 U.S. at 89.
The District Court’s judgment dismissing plaintiffs’
complaint should be affirmed for that reason alone. 2
2
If a majority of the Court had been willing to dismiss
plaintiffs’ claims on this basis for lack of subject-matter
jurisdiction, the Court could have avoided the need to confront the
significant constitutional question whether plaintiffs’ claims raise a
nonjusticiable political question. Cf. Nw. Austin Mun. Util. Dist.
No. One v. Holder, 129 S. Ct. 2504, 2513 (2009).
7
II
The straightforward approach outlined in Part I of this
opinion would readily resolve this case. But the majority
opinion instead relies on the notoriously “murky and
unsettled” political question doctrine to dismiss the complaint.
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n.8
(1984) (Bork, J., concurring). Because of the importance of
the political question doctrine to the law of this Circuit, I
believe it important to respond to the majority opinion and to
explain my disagreement with its political question theory.
The key point for purposes of my political question
analysis is this: Plaintiffs do not allege that the Executive
Branch violated the Constitution. Rather, plaintiffs allege that
the Executive Branch violated congressionally enacted
statutes that purportedly constrain the Executive. The
Supreme Court has never applied the political question
doctrine in cases involving statutory claims of this kind. As
Judge Edwards has correctly explained, the proper separation
of powers question in this sort of statutory case is whether the
statute as applied infringes on the President’s exclusive,
preclusive authority under Article II of the Constitution. See
Zivotofsky v. Sec’y of State, 571 F.3d 1227, 1240-45 (D.C.
Cir. 2009) (Edwards, J., concurring). That is a weighty
question – and one that must be confronted directly through
careful analysis of Article II, not resolved sub silentio in favor
of the Executive through use of the political question doctrine.
A
The political question doctrine has occupied a more
limited place in the Supreme Court’s jurisprudence than is
8
sometimes assumed.3 The Court has relied on the doctrine
only twice in the last 50 years. See Walter Nixon v. United
States, 506 U.S. 224 (1993); Gilligan v. Morgan, 413 U.S. 1
(1973). The Court has invoked the doctrine in cases in which
(i) the Constitution textually and exclusively commits
interpretation of the relevant constitutional provision to one or
both of the political branches or (ii) the constitutional
provision at issue supplies no judicially manageable or
discoverable standards for resolving the case. See Walter
Nixon, 506 U.S. at 228.
3
The Supreme Court does not decline to resolve a case on
political question grounds simply because the dispute involves or
would affect national security or foreign relations. Indeed, from the
time of John Marshall to the present, the Court has decided many
sensitive and controversial cases that had enormous national
security or foreign policy ramifications. See, e.g., Boumediene v.
Bush, 128 S. Ct. 2229 (2008); Medellín v. Texas, 552 U.S. 491
(2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Sosa v. Alvarez-
Machain, 542 U.S. 692 (2004); American Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003); Dames & Moore v. Regan, 453 U.S. 654
(1981); Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579 (1952); Johnson v. Eisentrager,
339 U.S. 763 (1950); Korematsu v. United States, 323 U.S. 214
(1944); United States v. Curtiss-Wright Export Corp., 299 U.S. 304
(1936); Ex parte Milligan, 71 U.S. 2 (1866); Prize Cases, 67 U.S.
635 (1863); Little v. Barreme, 6 U.S. 170 (1804); see also David J.
Barron & Martin S. Lederman, The Commander in Chief at the
Lowest Ebb – Framing the Problem, Doctrine, and Original
Understanding, 121 HARV. L. REV. 689, 723 (2008) (“the Supreme
Court’s jurisprudence, stretching from early in our history through
Youngstown to numerous contemporary war powers cases, is rife
with instances of the Court’s resolving questions of the Executive’s
war powers, just as it has adjudicated other separation of powers
disputes between the political departments”).
9
Importantly, the Supreme Court has invoked the political
question doctrine only in cases alleging violations of the
Constitution. This is a statutory case. The Supreme Court
has never applied the political question doctrine in a case
involving alleged statutory violations. Never.
As the Supreme Court has explained, the interpretation of
legislation is a “recurring and accepted task for the federal
courts.” Japan Whaling Ass’n v. American Cetacean Soc’y,
478 U.S. 221, 230 (1986). Under Article III of the
Constitution, “one of the Judiciary’s characteristic roles is to
interpret statutes, and we cannot shirk this responsibility
merely because our decision may have significant political
overtones.” Id.; see also 13C CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3534.2, at 752 (3d ed. 2008)
(“[I]nterpretation of statutes affecting foreign affairs is not
likely to be barred by [the] political-question doctrine.”);
ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 1.3, at 15 (5th
ed. 2007) (“Under current law, the political question doctrine
consigns certain allegations of constitutional violations to the
other branches of government for adjudication and decision,
even if all other jurisdictional and justiciability requirements
are met.”) (emphasis added).4
There is good reason the political question doctrine does
not apply in cases alleging statutory violations. If a court
refused to give effect to a statute that regulated Executive
conduct, it necessarily would be holding that Congress is
4
If a statute regulating private conduct provides no discernible
standards and therefore insufficient notice of what actions are
prohibited, the statute might be void for vagueness under the Due
Process Clause. See Bouie v. City of Columbia, 378 U.S. 347, 351
(1964). But that is not a political question doctrine determination.
10
unable to constrain Executive conduct in the challenged
sphere of action. As a result, the court would be ruling (at
least implicitly) that the statute intrudes impermissibly on the
Executive’s prerogatives under Article II of the Constitution.
In other words, the court would be establishing that the
asserted Executive power is exclusive and preclusive,
meaning that Congress cannot regulate or limit that power by
creating a cause of action or otherwise.
Applying the political question doctrine in statutory cases
thus would not reflect benign deference to the political
branches. Rather, that approach would systematically favor
the Executive Branch over the Legislative Branch – without
the courts’ acknowledging as much or grappling with the
critical separation of powers and Article II issues. The fact
that use of the political question doctrine in statutory cases
loads the dice against the Legislative Branch presumably
explains why there is no Supreme Court precedent applying
the doctrine in statutory cases – and why the Executive
Branch (sometimes wary, for a variety of reasons, of
advancing a straight Article II argument) may want the courts
to invoke the doctrine in statutory cases of this sort. Cf.
David J. Barron & Martin S. Lederman, The Commander in
Chief at the Lowest Ebb – Framing the Problem, Doctrine,
and Original Understanding, 121 HARV. L. REV. 689, 723-24
(2008) (“One need only consider the cases that could arise in
the contemporary setting to see that leaving the question of
the President’s constitutional authority to defy a statutory
restriction on his war powers to the give-and-take of the
political branches would be quite radical in its implications. . .
. [T]he insistence that allocation of war powers should be ‘left
to politics’ would hardly be a neutral solution to the problem:
it would inevitably tilt the constitutional structure decidedly in
favor of executive supremacy.”).
11
In short, the question whether a statute intrudes on the
Executive’s exclusive, preclusive Article II authority must be
confronted directly through careful analysis of Article II – not
answered by backdoor use of the political question doctrine,
which may sub silentio expand executive power in an indirect,
haphazard, and unprincipled manner. It is particularly
important to confront the question directly because of the
significance of such questions to our constitutional separation
of powers. As Justice Jackson rightly explained, any claim of
exclusive, preclusive Executive authority – particularly in the
national security arena – “must be scrutinized with caution,
for what is at stake is the equilibrium established by our
constitutional system.” Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring).
B
The approach suggested in this opinion is consistent with
the results, if not all the reasoning, of this Court’s recent cases
declining to entertain certain tort suits in the national security
arena. In those cases, as in this case, the plaintiffs asserted no
cognizable cause of action. See Harbury v. Hayden, 522 F.3d
413 (D.C. Cir. 2008); Gonzalez-Vera v. Kissinger, 449 F.3d
1260 (D.C. Cir. 2006); Bancoult v. McNamara, 445 F.3d 427
(D.C. Cir. 2006); Schneider v. Kissinger, 412 F.3d 190 (D.C.
Cir. 2005). The Federal Tort Claims Act does not apply to
suits for actions that occur in foreign countries or that
encompass discretionary functions, among other exceptions.
The Alien Tort Statute has never been held to cover suits
against the United States or United States Government
officials; the statute furnishes no waiver of sovereign
immunity. And as we explained in Harbury, the Torture
Victim Protection Act does not extend to suits against
American officials except in the unusual case where such an
official acts “under color of foreign law.”
12
The absence of a cause of action covering the national
security activities at issue in Harbury, Gonzalez-Vera,
Bancoult, Schneider, or this case is hardly surprising. The
political branches, mindful of the need for Executive
discretion and flexibility in national security and foreign
affairs, are unlikely to unduly hamper the Executive’s ability
to protect the Nation’s security and diplomatic objectives.
See United States v. Curtiss-Wright Export Corp., 299 U.S.
304, 320-22 (1936). Relatedly, it is well-established that
courts must be cautious about interpreting an ambiguous
statute to constrain or interfere with the Executive Branch’s
conduct of national security or foreign policy. See Dep’t of
the Navy v. Egan, 484 U.S. 518, 529-30 (1988); United States
v. Johnson, 481 U.S. 681, 690-91 (1987); Haig v. Agee, 453
U.S. 280, 292 (1981); see also Sosa v. Alvarez-Machain, 542
U.S. 692, 733 n.21 (2004).5 And apart from all that, if a
statute were passed that clearly limited the kind of Executive
national security or foreign policy activities at issue in these
cases, such a statute as applied might well violate Article II.
Cf. Zivotofsky, 571 F.3d at 1240-45 (Edwards, J., concurring).
The main point here is that those issues should be
confronted directly and carefully, not resolved sub silentio in
favor of the Executive through invocation of the political
question doctrine in a situation where the Supreme Court has
never seen fit to employ it.
5
In cases reviewing the Executive’s designation of foreign
terrorist organizations, we held that the statute left to the Executive
Branch the determination whether a group threatened the security
of the United States. See People’s Mojahedin v. Dep’t of State, 182
F.3d 17, 23-25 (D.C. Cir. 1999). This seems a straightforward
application of Dep’t of the Navy v. Egan’s principle of statutory
interpretation, not any broad holding about the political question
doctrine.
13
C
To say that the courts must directly confront the critical
separation of powers and Article II issues posed by this kind
of statutory case is not to say that the Executive lacks any
exclusive, preclusive Article II authority. The Executive
plainly possesses a significant degree of exclusive, preclusive
Article II power in both the domestic and national security
arenas. See, e.g., Ex parte Garland, 71 U.S. 333, 380 (1867)
(pardon power “of the President is not subject to legislative
control.”).
In the national security realm, although the topic is of
course hotly debated, most acknowledge at least some areas
of exclusive, preclusive Presidential power – where Congress
cannot regulate and the Executive “wins” even in Justice
Jackson’s Youngstown Category Three. For example, courts
have generally accepted that the President possesses
exclusive, preclusive power under the Commander-in-Chief
Clause of Article II to command troop movements during a
congressionally authorized war. See Hamdan v. Rumsfeld,
548 U.S. 557, 591-92 (2006) (“neither can the President, in
war more than in peace, intrude upon the proper authority of
Congress, nor Congress upon the proper authority of the
President. . . . Congress cannot direct the conduct of
campaigns”) (quoting Ex parte Milligan, 71 U.S. 2, 139
(1866) (separate opinion of Chase, C.J.)).
This case involves President Clinton’s unilateral decision
to bomb suspected al Qaeda targets. In the wake of the
August 1998 al Qaeda attacks on U.S. personnel and property
in Tanzania and Kenya, President Clinton ordered these
attacks “in exercise” of the United States’ “inherent right of
self-defense.” Letter to Congressional Leaders Reporting on
Military Action Against Terrorist Sites in Afghanistan and
14
Sudan, 2 PUB. PAPERS 1464 (Aug. 21, 1998). As authority for
the bombings, President Clinton cited his Commander-in-
Chief power under Article II.
A statute regulating or creating a cause of action to
challenge the President’s short-term bombing of foreign
targets in the Nation’s self-defense (or contesting the
Executive Branch’s subsequent statements about it as
defamatory) might well unconstitutionally encroach on the
President’s exclusive, preclusive Article II authority as
Commander in Chief. Cf. Prize Cases, 67 U.S. 635, 668
(1863) (“If a war be made by invasion of a foreign nation, the
President is not only authorized but bound to resist force by
force. He does not initiate the war, but is bound to accept the
challenge without waiting for any special legislative
authority.”); 4A Op. Off. Legal Counsel 185 (1980).
But we need not definitively answer the sensitive and
weighty Article II question in this case. As explained in Part I
of this opinion, Congress has not created any cognizable
cause of action that would apply to President Clinton’s
decision to bomb El-Shifa or later Executive Branch
statements about the bombing. Indeed, the only remotely
relevant statute in this case is the War Powers Resolution,
which seems to support the President’s authority to conduct
unilateral military operations for at least 62 days without
specific congressional approval. See 50 U.S.C. § 1544(b).
Given that no cause of action exists here, the political
question and Article II issues in this case have an abstract and
hypothetical air to them. In these circumstances, we would be
wise to heed Justice Jackson’s cautionary words. We should
decline the opportunity to expound on the scope of the
President’s exclusive, preclusive Commander-in-Chief
authority under Article II. I respectfully disagree with the
15
majority opinion’s doing so – and particularly its doing so
indirectly through reliance on the political question doctrine.
***
I would dismiss plaintiffs’ complaint because plaintiffs’
two claims are “so insubstantial, implausible, foreclosed by
prior decisions of this Court, or otherwise completely devoid
of merit as not to involve a federal controversy.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 89 (1998).