El-Shifa Pharmaceutical Industries Co. v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2008 Decided March 27, 2009

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.

C. Frederick Beckner III, Deputy Assistant Attorney
General, U.S. Department of Justice, argued the cause for
appellee. With him on the brief were Jeffrey S. Bucholtz,
Acting Assistant Attorney General, Jeffrey A. Taylor, U.S.
Attorney, and Mark B. Stern and Dana J. Martin, Attorneys.

Before: GINSBURG, HENDERSON, and GRIFFITH, Circuit
Judges.
 2
Opinion for the Court filed by Circuit Judge GRIFFITH.

Opinion concurring in the judgment in part and
dissenting in part filed by Circuit Judge GINSBURG.

GRIFFITH, Circuit Judge: In 1998, the President of the
United States ordered a missile strike against a
pharmaceutical plant in Sudan that he believed was connected
to the terrorist activities of Osama bin Laden. The owners of
the plant sued the United States, challenging several allegedly
defamatory statements made by senior executive branch
officials justifying the strike as well as the government’s
failure to compensate them for the destruction of the plant.
The district court dismissed plaintiffs’ complaint, and we
affirm on the ground that it presents a nonjusticiable political
question.

I.

Because we are asked to review the grant of a motion to
dismiss, we treat the factual allegations in the complaint as
true. Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164 (1993). In August
1998, the terrorist network led by Osama bin Laden bombed
American embassies in Kenya and Tanzania. Days later, the
United States responded with a missile strike against a
pharmaceutical plant in North Khartoum, Sudan, owned by
plaintiffs El-Shifa Pharmaceutical Industries Company (El-
Shifa) and Salah El Din Ahmed Mohammed Idris.

President Clinton justified the attack by publicly claiming
that the El-Shifa plant was a “terrorists’ base of operation”
and “associated with the bin Laden network.” Consistent with
this claim, high-ranking executive branch officials also stated
their belief that bin Laden financed the plant, which was
 3
owned by the Sudan Military Industrial Complex Corporation,
made no commercial products, and, most ominously, was
involved in the production of chemical weapons. To support
this latter accusation, the officials pointed to a soil sample
from the plant that included a chemical known as O-
ethylmethyl phosphonothioic acid, referred to as EMPTA,
which is used in the manufacture of nerve gas.

Plaintiffs allege the Clinton Administration was wrong on
all counts about its justifications for striking the plant. Neither
bin Laden nor the Sudan Military Industrial Complex
Corporation had ties to the plant, no chemical weapons agents
such as EMPTA were ever present, and the plant produced
only medicinal products, including over half the
pharmaceuticals used in Sudan.

Once they learned that their initial justifications for the
attack were false, Clinton Administration officials offered a
new explanation that portrayed Idris, the actual owner of the
plant, as a friend and supporter of terrorists. In particular, and
as reported in several newspapers, anonymous executive
branch officials claimed Idris was linked to bin Laden. The
Washington Post, for example, reported “one official” as
saying, “What we’re learning about [Idris] leads us to suspect
that he’s involved in money laundering, that he’s involved in
representing a lot of bin Laden’s interests in Sudan.” Vernon
Loeb & Bradley Graham, Sudan Plant Was Probed Months
Before Attack, WASH. POST, Sept. 1, 1998, at A14. According
to plaintiffs, these statements were false.

Plaintiffs took several actions to recoup their losses from
the attack. They first filed a lawsuit in the United States Court
of Federal Claims seeking $50 million as just compensation
under the Takings Clause of the Constitution. The court
dismissed the suit as nonjusticiable under the political
 4
question doctrine and the United States Court of Appeals for
the Federal Circuit affirmed. See El-Shifa Pharm. Indus. Co.
v. United States, 378 F.3d 1346, 1370 (Fed. Cir. 2004).
Plaintiffs also filed an administrative claim with the Central
Intelligence Agency (CIA) under the Federal Tort Claims Act
(FTCA), seeking compensation for the destruction of the plant
as well as a retraction of the allegedly defamatory statements
about El-Shifa and Idris.

After the CIA denied the claim, plaintiffs filed this action
against the United States under the FTCA seeking at least $50
million in damages for the government’s alleged negligence
and trespass in carrying out the attack. At issue on appeal are
two further claims. The plaintiffs also sought declaratory
judgments that the statements linking them to “Osama bin
Laden, international terrorist organizations and the production
of chemical weapons” were false and that the government’s
refusal to compensate them for the attack violated the law of
nations. The district court granted the government’s motion to
dismiss plaintiffs’ complaint for lack of subject matter
jurisdiction, see FED. R. CIV. P. 12(b)(1), concluding that
sovereign immunity barred all of plaintiffs’ claims. El-Shifa
Pharm. Indus. Co. v. United States, 402 F. Supp. 2d 267,
270–73 (D.D.C. 2005). The court also noted that the
complaint “likely present[ed] a nonjusticiable political
question.” Id. at 276. Plaintiffs filed a motion to alter the
judgment with respect to their claims for equitable relief,
which the district court denied. El-Shifa Pharm. Indus. Co. v.
United States, No. 01-731 (D.D.C. Mar. 28, 2007).

On appeal, plaintiffs challenge only the dismissal of their
claims for equitable relief for defamation and under the law of
nations. They restrict their defamation claim to statements
about Idris and their law of nations claim to the refusal to pay
compensation for the attack. We have jurisdiction under 28
 5
U.S.C. § 1291 (2000), and we review the district court’s grant
of the motion to dismiss de novo, see Carter v. Wash. Metro.
Area Transit Auth., 503 F.3d 143, 145 (D.C. Cir. 2007).

II.

The government urges us to affirm the district court’s
dismissal of this case on the ground that it presents a
nonjusticiable political question. Because we affirm on this
basis, we do not address the government’s other arguments.
See Nemariam v. Fed. Democratic Republic of Eth., 491 F.3d
470, 481 (D.C. Cir. 2007).

Early in the nation’s history, Chief Justice John Marshall,
in seminal words that shaped the development of the political
question doctrine, explained that the limited authority the
Constitution grants to the judiciary to resolve disputes does
not extend to all complaints about the actions of the
Executive:

The province of the court is, solely, to decide on the
rights of individuals, not to enquire how the executive,
or executive officers, perform duties in which they
have a discretion. Questions, in their nature political,
or which are, by the constitution and laws, submitted
to the executive, can never be made in this court.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803). In
Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court
explained that the political question doctrine precludes courts
from considering cases that involve

a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards
 6
for resolving it; or the impossibility of deciding
without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility
of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate
branches of government; or an unusual need for
unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from
multifarious pronouncements by various departments
on one question.

Id. at 217. As Baker’s first factor indicates, the doctrine is
“primarily a function of the separation of powers,” id. at 210,
and prohibits the judiciary from reviewing “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
Soc’y, 478 U.S. 221, 230 (1986) (emphasis added).

Disputes involving national security and foreign policy
decisions are “quintessential sources of political questions.”
Bancoult v. McNamara, 445 F.3d 427, 433 (D.C. Cir. 2006).
The Constitution places these policy decisions in the hands of
the President and Congress—not the judiciary. See Oetjen v.
Cent. Leather Co., 246 U.S. 297, 302 (1918) (“The conduct of
the foreign relations of our government is committed by the
Constitution to the executive and legislative—‘the political’—
departments of the government, and the propriety of what
may be done in the exercise of this political power is not
subject to judicial inquiry or decision.”); Schneider v.
Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005) (“[T]here could
. . . be no doubt that decision-making in the fields of foreign
policy and national security is textually committed to the
political branches of government.”); Comm. of U.S. Citizens
Living in Nicar. v. Reagan, 859 F.2d 929, 933–34 (D.C. Cir.
 7
1988) (noting that “foreign policy decisions are the subject of
. . . a textual commitment”).

Even though “it is error to suppose that every case or
controversy which touches foreign relations lies beyond
judicial cognizance,” Baker, 369 U.S. at 211, the political
question doctrine looms over plaintiffs’ claims, this being a
case that arises out of a decision to launch a military attack.
We begin our analysis with a proposition upon which both
parties agree: it is not for the federal courts to review the
President’s battlefield decisions. Appellee’s Br. 18–21;
Appellants’ Reply Br. 2; see Gilligan v. Morgan, 413 U.S. 1,
10–11 (1973); Bancoult, 445 F.3d at 436; Luftig v.
McNamara, 373 F.2d 664, 665–66 (D.C. Cir. 1967) (per
curiam). President Clinton, in his capacity as Commander-in-
Chief, fired missiles at a target of his choosing to pursue a
military objective he had determined was in the national
interest. Under the Constitution, this decision is immune from
judicial review.

Although plaintiffs attempt to distance their law of
nations and defamation claims from the nonjusticiable
question of why the President ordered the missile strike, both
claims nonetheless present questions “inextricably
intertwined” with the underlying decision to attack the El-
Shifa pharmaceutical plant. Plaintiffs’ law of nations claim
asserts that under customary international law a state must
compensate a foreign national for the unjustified destruction
of property. Plaintiffs allege the United States violated this
principle by failing to compensate them for the destruction of
their plant. In passing judgment on this claim, the district
court could not avoid becoming arbiter of the President’s
battlefield actions and would need to determine whether his
decision to bomb the plant was justified. See Appellants’
Reply Br. 4 (acknowledging this issue “could require the
 8
Court to consider whether El-Shifa was, in fact, a chemical
weapons facility”).

This a court cannot do. We have consistently held that
courts are not a forum for second-guessing the merits of
foreign policy and national security decisions textually
committed to the political branches. See Gonzalez-Vera v.
Kissinger, 449 F.3d 1260, 1263–64 (D.C. Cir. 2006)
(dismissing a suit concerning alleged unlawful U.S. assistance
to the Pinochet regime because the challenged actions “were
‘inextricably intertwined with the underlying’ foreign policy
decisions constitutionally committed to the political branches”
(quoting Bancoult, 445 F.3d at 436)); see also Harbury v.
Hayden, 522 F.3d 413, 420 (D.C. Cir. 2008) (dismissing a suit
against American officials alleged to have unlawfully
conspired with the Guatemalan army because it sought a
“determination[] whether the alleged conduct should have
occurred, which impermissibly would require examining the
wisdom of the underlying policies”); Bancoult, 445 F.3d at
436 (dismissing a suit challenging the tactical measures
allegedly taken in depopulating island territories to build a
naval base because the measures were “inextricably
intertwined” with an exercise of “the foreign policy and
national security powers entrusted . . . to the political
branches”); Schneider, 412 F.3d at 194–95 (dismissing a suit
alleging that the United States assisted in the kidnapping,
torture, and death of a Chilean general during the Cold War
because it challenged a foreign policy decision textually
committed to the political branches). This precedent controls
our decision here. Plaintiffs’ law of nations claim asks us to
review whether the President was justified in striking the El-
Shifa plant. Courts have no business hearing such claims.1

1
We disagree with our dissenting colleague’s conclusion that the
law of nations claim has been forfeited. See Dissenting Op. at 3.
 9

Plaintiffs’ defamation claim suffers from a similar flaw.
The complaint plainly acknowledges that executive branch
officials offered the allegedly defamatory statements in
justification of the President’s decision to attack the plant.
Compl. ¶ 1 (stating the action arises out of “false and
defamatory statements made by United States government
officials seeking to justify [the destruction of the El-Shifa
pharmaceutical plant]”); id. ¶ 64 (concluding that U.S.
officials offered these statements as “a new justification for
their attack”). Consider the review the district court would
need to undertake in ruling on this claim. To prevail in their

Plaintiffs fully brief the claim challenging the CIA’s failure to
compensate, which the district court also addressed, and so it must
be addressed here. The dissent assumes that the law of nations
claim replicates the abandoned claim that the attack was unjustified.
That reasoning mistakenly conflates the concepts of claims and
issues. The claim in the challenge to the attack was that plaintiffs
were entitled to a declaratory judgment that the President was
wrong to order the strike (Claim 1). That claim has been forfeited.
The law of nations claim is that plaintiffs are entitled to a
declaratory judgment that the CIA wrongfully refused to
compensate plaintiffs (Claim 2). An issue in Claim 2 is whether the
President unjustifiably ordered the strike, for if the attack was
justified no compensation was due. The question presented in
Claim 1 is also an issue in Claim 2. The dissent wrongly concludes
that because Claim 1 is forfeited and because it raises an issue in
Claim 2, Claim 2 is also forfeited. Claim 1 challenged an action by
the President, whose sovereign immunity is not waived by the
Administrative Procedure Act (APA). By contrast, Claim 2
challenges the action of a federal agency whose sovereign
immunity is waived by the APA, 5 U.S.C. § 702 (2006). Crucially,
the relief requested in Claim 1 ran against the President, while in
Claim 2 it runs against the CIA. Although judicial review of Claim
2 may require review of an issue presented in Claim 1, Claim 2 is
not barred by sovereign immunity and is properly before us.
 10
defamation suit, the plaintiffs must show that the statements
made to justify the attack were false. See generally
RESTATEMENT (SECOND) OF TORTS § 558 (1977). The district
court, then, could not avoid the question whether Idris was in
fact associated with bin Laden, meaning a judicial decision
for the plaintiffs would directly contradict the Clinton
Administration’s ultimate stated justification for launching the
missile strike.

The dissent notes that this allegedly defamatory
justification came after the plant was bombed and thus argues
that the plaintiffs’ claim would not call into question the
President’s true motivations for launching the missile strike.
See Dissenting Op. at 6. But both Idris and the dissent admit
that the challenged statements were offered in justification of
the decision to bomb the plant. See id. at 8 (citing Compl.
¶¶ 63–64). We have no trouble concluding that the President’s
public justifications for discrete military action are always
offered, in part at least, with strategic military, national
security, or foreign policy objectives in mind. The making of
such justifications is itself a policy decision that cannot be
separated from the conduct of foreign relations and the
exercise of the war power that it explains. See Appellee’s Br.
15 (“[P]ublic statements about the bombing . . . are closely
intertwined with the decision to launch the military strike.”).2
Accordingly, we conclude that a decision on the defamation
claim would necessarily cross the barrier marked by the

2
According to the dissent, Idris can avoid dismissal here by stating
that the President’s justifications for the missile strike were made
not in furtherance of national security or foreign policy, but merely
to avoid public embarrassment. See Dissenting Op. at 7–8. Implicit
in the dissent’s argument on this point is a suggestion, which we
reject, that plaintiffs can avoid the political question bar at the
motion to dismiss stage by artful pleading that recasts the terms of a
dispute to make it one properly reviewed by courts.
 11
political question doctrine. See Schneider, 412 F.3d at 194
(“[T]here could . . . be no doubt that decision-making in the
fields of foreign policy and national security is textually
committed to the political branches of government.”); cf.
Wilson v. Libby, 535 F.3d 697, 704 (D.C. Cir. 2008) (holding
that the political question doctrine did not apply in a case
involving “disclosures made by high-level executive branch
officials when speaking with the press” because plaintiffs did
not “challenge[] any foreign policy or national security
decisions”).3

The dissent responds by arguing that judicial review of
the allegedly defamatory statements about Idris is no more of
an intrusion upon the Executive’s national security decisions
than is judicial review of, for example, an enemy combatant
determination, which the political question doctrine does not
forbid. See Dissenting Op. at 9–11 (citing Boumediene v.
Bush, 128 S. Ct. 2229 (2008); Parhat v. Gates, 532 F.3d 834
(D.C. Cir. 2008); Chai v. Dep’t of State, 466 F.3d 125 (D.C.
Cir. 2006); Von Zedtwitz v. Sutherland, 26 F.2d 525 (D.C.
Cir. 1928)). But none of the cases cited by the dissent
involved a textual commitment of authority to the political
branches. Boumediene found in the Suspension Clause a
textual commitment to the judiciary of authority to review
enemy combatant determinations resulting in prolonged

3
The dissent assumes that we find decisionmaking in these fields
exclusively within the President’s Commander-in-Chief authority.
See Dissenting Op. at 9–11. We express no such opinion. Rather,
we simply rest our holding on the proposition that the conduct of
our foreign relations is committed to the political departments, “and
the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision,” Oetjen, 246
U.S. at 302.
 12
detention. See 128 S. Ct. at 2247. Likewise, in Parhat,4 Chai,5
and Von Zedtwitz,6 we were not called upon to scrutinize
decisions textually committed to a coordinate branch of
government. In raising these cases, the dissent presents an
interesting question concerning the boundary between
decisions properly made by the judiciary and decisions
constitutionally committed to the political branches.
Fortunately, we need not decide where that boundary lies.
Plaintiffs’ defamation claim presents a challenge to the
Executive’s foreign policy and national security
decisionmaking, two areas clearly outside our authority.

III.

We conclude that this case presents a nonjusticiable
political question. The judgment of the district court
dismissing plaintiffs’ claims is

Affirmed.

4
Parhat, 532 F.3d at 839 (citing the Detainee Treatment Act,
section 1005(e)(2)(A) of which gives this court “exclusive
jurisdiction to determine the validity of any final decision of a
Combatant Status Review Tribunal that an alien is properly
detained as an enemy combatant”).
5
Chai, 466 F.3d at 128–29 (citing 8 U.S.C. § 1189(c) (2006),
which allows an entity designated as a terrorist organization under
the Antiterrorism and Effective Death Penalty Act to seek judicial
review in this court).
6
Von Zedtwitz, 26 F.2d at 153–54 (citing the Trading with the
Enemy Act, section 9(a) of which provides for judicial review of
certain seizures of property).
 GINSBURG, Circuit Judge, concurring in the judgment in
part and dissenting in part: Salah El Din Ahmed Mohammed
Idris and the El-Shifa Pharmaceutical Industries Company,
which Idris allegedly owns, sued the United States following
a missile strike against the Company’s plant in Sudan. The
plaintiffs advanced several claims, only two of which remain
at issue in this appeal. The Court holds both claims must be
dismissed because they raise questions constitutionally
committed not to the judicial but to the political branches, the
alternative ground raised by the Government in the district
court.

I agree that the claim the United States violated the law
of nations in striking the plant and failing to pay the plaintiffs
compensation should be dismissed, but I do so because the
plaintiffs did not preserve that claim; we therefore have no
need to pass upon a constitutional issue. I believe the claim
that various officers of the United States defamed Idris in the
wake of the strike should be remanded to the district court for
further proceedings; the complaint, which the Government
has not yet answered, does not necessarily raise a political
question and may be subject to objections that do not require
us to reach the constitutional issue.

I. The Law of Nations Claim

The plaintiffs first allege the United States violated
international law by “destroy[ing] the Plant without
justification,” Compl. ¶ 112, and by failing “to use peaceful
means to resolve its ... concerns,” id. ¶ 113, in contravention
of the prohibition on the use of force in the Charter of the
United Nations, id. ¶ 109. The breach of this international
obligation, they say, triggers the responsibility of the United
States to compensate them. Id. ¶¶ 110–11. The plaintiffs
accordingly seek “[a] declaration that the ... attack on the El-
Shifa pharmaceutical plant violated the law of nations,” which
 2
declaration they say would restore “the reputations of El-
Shifa and Mr. Idris” by dispelling the “suspicion that they
were engaged in the production of chemical weapons or other
activities associated with terrorism,” id. ¶¶ 115–16.

The district court dismissed the claim as barred by
sovereign immunity, see Cohens v. Virginia, 19 U.S. (6
Wheat.) 264, 380 (1821) (“a sovereign independent State is
not suable, except by its own consent”); see also United
States v. Lee, 106 U.S. 196, 207–08 (1882), without reaching
the Government’s alternative argument for dismissal based
upon the constitutional bar to judicial resolution of a political
question. Although the plaintiffs sued only the United States,
they invoked § 702 of the Administrative Procedures Act,
which provides a waiver of immunity for any suit against the
United States “seeking relief other than money damages and
stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or under
color of legal authority,” 5 U.S.C. § 702, regardless whether
the suit is brought under the APA, Trudeau v. FTC, 456 F.3d
178, 186 (D.C. Cir. 2006). The district court held the waiver
in the APA inapplicable, however, because the plaintiffs’ law
of nations claim sought to impugn only the President’s
decision to strike the plant and the President is not an
“agency” within the meaning of the APA. 402 F. Supp. 2d
267, 272–73 (2005); see Dalton v. Specter, 511 U.S. 462,
476–77 (1994).

On appeal, the plaintiffs do not take issue with the ruling
that the waiver of sovereign immunity in § 702 is inapplicable
insofar as they alleged the strike against the El-Shifa plant
violated international law. Their opening brief states frankly
“Plaintiffs no longer seek a declaration that the destruction of
the plant ... violated international law.” In that respect,
therefore, their claim is waived and there is no need for the
 3
court to reach the constitutional question whether the claim is
barred by the political question doctrine. See Meijer, Inc. v.
Biovail Corp., 533 F.3d 857, 863 (D.C. Cir. 2008).

The plaintiffs do argue on appeal, however, as they did
before the district court on motion to alter the judgment, that
they were challenging not only the President’s decision to
strike the plant but also “the CIA’s independent and final
decision to deny compensation based on after-acquired
evidence about the El-Shifa plant.” The waiver of sovereign
immunity in the APA does apply to this claim because the
CIA clearly is an “agency.”

The claim nonetheless must be dismissed because the
complaint faults the Government for failing to compensate the
plaintiffs only upon the premise “that the destruction of the
Plant was ... not justified under the law of nations.” See
Compl. ¶ 115. Having waived the argument that the strike
against the plant violated the law of nations, the plaintiffs
necessarily forfeited their challenge to the CIA’s failure to
compensate them.* Accordingly, we have neither the need
nor the occasion to address the Government’s argument that
the plaintiffs’ law of nations claim raises a political question.

*
In a cryptic footnote the Court asserts I erroneously conclude the
law of nations claim was forfeited by “conflat[ing] the concepts of
claims and issues,” Ct. op. at 8–9 n.1, but, as noted in the text, the
complaint asserts the CIA violated international law by failing to
pay the plaintiffs compensation only because the attack “was ... not
justified under the law of nations,” Compl. ¶ 115. Thus, the claim
that the failure to pay compensation violated international law
depends upon the question whether the strike violated international
law, which the plaintiffs have waived regardless whether it is
characterized as a “claim” or as an “issue.”
 4
II. The Claim for Defamation

The second claim before us on appeal is that certain
officers of the United States defamed Idris, giving rise to a
“cause of action ... against the United States ... under both the
common law ... and the APA.” It is worth repeating Idris’s
allegations because, as the Court notes, we must “treat the
factual allegations in the complaint as true.” Ct. op. at 2.

According to Idris: President Clinton and various
government officials initially justified the attack to the public
on the ground that the plant, which was owned by the
Sudanese Government, was a “chemical weapons-related
facility” involved in the manufacture of EMPTA, Compl. ¶
27 (“In Sudan, they are ... manufacturing nerve gas which
could kill us all”), had no commercial purpose, id. ¶ 35, and
enjoyed the suspicious protection of the Sudanese military, id.
¶ 39. Moreover, a “senior intelligence officer” reported on
the day of the strike that Osama “bin Laden has made
financial contributions to the Sudanese Military Industrial
Complex ... a distinct entity of which, we believe, the Shifa
pharmaceutical facility is [a] part,” id. ¶ 43. Thus, “[t]he U.S.
officials who authorized the attack did not know” Idris
“owned El-Shifa at the time of the attack.” Id. ¶ 65. Within a
few days after the strike, however, the press began to identify
him as the owner of the plant, id. ¶ 66, and U.S. officials
began to retract the public statements made initially in
justification for the strike. “[R]ather than admit that a terrible
mistake was made ... U.S. officials ... invent[ed] new
justifications for” striking the El-Shifa plant. Id. ¶ 64.
Officials claimed falsely and with reckless disregard for the
truth that, among other things, (1) Idris is a financial
supporter of the National Islamic Front; (2) “evidence
obtained since the attack …. suggest[s] that Idris ... purchased
the plant ... on bin Laden’s behalf”; (3) Idris “represent[s] a
 5
lot of bin Laden’s interests in Sudan”; and (4) Idris “has had
financial dealings with members of Islamic Jihad” and
“launders money for international Islamic groups.” Id. ¶ 66.
As with the law of nations claim, Idris sought declaratory
relief and argued the APA provided the requisite waiver of
sovereign immunity.

The district court dismissed the defamation claim
because it erroneously read the complaint to seek damages,
and therefore to be subject to the Federal Tort Claims Act,
which does not waive sovereign immunity for claims of
defamation seeking damages. 402 F. Supp. 2d at 272 (citing
28 U.S.C. § 2680(h)). In his motion to alter the judgment
Idris pointed to the waiver in the APA for suits seeking
declaratory relief, 5 U.S.C. § 702. The court denied the
motion, again without reaching the Government’s alternative
argument that the case presented a political question, this time
on the ground there had been no “final agency action,” as
required by § 704 of the APA. No. Civ.A. 01-731, 2007 WL
950082, at *1 (Mar. 28, 2007).

In ruling upon the motion, the district court again erred:
First, the CIA had denied Idris’s request for a retraction,
which certainly seems to be final agency action. See Yousuf
v. Samantar, 451 F.3d 248, 251 (D.C. Cir. 2006). In any
event, “[t]he waiver [in § 702 of the APA] applies regardless
of whether [the challenged conduct] constitutes ‘final agency
action.’” Trudeau, 456 F.3d at 187. Finally, the requirement
of final agency action in 5 U.S.C. § 704 limits only causes of
action arising under the APA itself, id. at 190–91; here Idris
invoked both the APA and the common law of defamation.

Today the Court affirms the district court’s erroneous
dismissal of Idris’s claim for defamation on the different but
inapposite constitutional ground that the allegedly defamatory
 6
statements are “‘inextricably intertwined’ with the underlying
decision to attack the El-Shifa pharmaceutical plant.” Ct. op.
at 7. The Court first asserts that Idris’s “defamation claim
suffers from a [flaw similar]” to that of his claim under
international law. Id. at 9. The claim based upon
international law, according to the Court, presents a political
question because in adjudicating it, the district court “would
need to determine whether [the President’s] decision to bomb
the plant was justified.” Id. at 7. Apparently, however, the
Court does not really — indeed, it could not reasonably —
believe the district court, in adjudicating the defamation
claim, would necessarily call into question the President’s
decision: Idris contends the CIA’s statements came after and
had nothing to do with the President’s reason for bombing the
plant. See id. at 2–3; BILL CLINTON, MY LIFE 805 (2004).
Instead, the Court reasons that, even if Idris’s claim “would
not call into question the President’s true motivations for
launching the missile strike,” it is nevertheless barred by the
political question doctrine because the CIA’s post hoc
justification may implicate other “strategic military, national
security, or foreign policy objectives” of the President. Ct.
op. at 10. In other words, the post hoc justification was itself
a strategic military and foreign policy decision and therefore
not subject to judicial review.

The Court, however, merely speculates that strategic
objectives were served by the CIA’s post hoc statements
about Idris. For support the Court first musters the assertion
that “public justifications for discrete military action are
always offered, in part at least, with strategic … objectives in
mind.” Id. If, however, the allegedly defamatory statements
themselves furthered the President’s conduct of military
affairs, then surely the Government would explain how.
 7
The Government offers no such explanation in support of
its motion to dismiss and therefore I am at a loss to
understand why the Court struggles to create one for it. In
order to imply the Government has explained how the CIA’s
post hoc statements were strategic decisions, the Court quotes
the assertion in the Government’s brief — as though it were
evidence — that “‘public statements about the bombing
[were] … closely intertwined with the decision to launch the
military strike.’” Id. Read in context, however, the
Government’s statement is not even an attempt to argue the
CIA’s post hoc justification was itself a strategic decision:

As the Federal Circuit held in upholding the dismissal of
plaintiffs’ takings claim under the political question
doctrine, the Constitution provides the courts with no
authority to review the President’s determination that the
nation is “at risk of imminent attack” or his
determination that private property overseas is enemy
property that must be destroyed to “most effectively
neutralize the possibility of attack.” … The result does
not change here because plaintiffs have challenged not
only the [President’s] decision to bomb the El-Shifa
plant, but also [the CIA’s] public statements about the
bombing that themselves are closely intertwined with the
decision to launch the military strike.

Appellee’s Br. at 14–15 (internal citation omitted). Thus, far
from explaining that the CIA’s post hoc statements were
strategic decisions, the Government asserts only that a court
cannot question the President’s decision to bomb the plant
merely because the issue arises in the context of a claim for
defamation.

More important, in asserting the CIA had — or, more
accurately, must have had — a strategic motivation, the Court
 8
refuses to accept as true Idris’s allegations. According to
Idris, “U.S. officials,” facing “profoundly embarrassing”
criticism from the press, simply invented a new justification
for the attack “rather than admit … a terrible mistake.”
Compl. ¶¶ 63–64. The Court labels this allegation “artful
pleading” designed to “recast[] the terms of a dispute to make
it one properly reviewed by courts.” Ct. op. at 10 n.2. The
Constitution does not, however, require us to ignore the rules
governing a motion to dismiss simply because the
Government has argued Idris’s defamation claim presents a
political question. Indeed, factual development often is
necessary to determine whether a suit presents a
nonjusticiable political question. See, e.g., Zivotofsky ex rel.
Ari Z. v. Sec’y of State, 444 F.3d 614, 619–20 (D.C. Cir.
2006) (remanding to district court for it to develop facts
related to whether suit presented political question). The
Court can label Idris’s allegation an “artful” attempt to
circumvent the Constitution only because the Court assumes
(a) the CIA must have had a strategic objective in mind and
(b) any challenge to a strategic decision necessarily raises a
political question, even if the decision was only “in part”
motivated by military or foreign policy objectives, Ct. op. at
10.

In any event, the Court errs in believing Idris’s claim
necessarily raises a political question simply because it
implicates a strategic decision. Apparently the Court believes
the Constitution grants the Executive the unreviewable
discretion to make defamatory statements even if they have
nothing to do with the actual justification for a military
decision because (or so the Court assumes) every public
explanation of a military decision is “offered, in part at least,
with strategic … objectives in mind.” Id. That proposition is
not only novel and frightening, it ignores Supreme Court
precedent.
 9

To hold that Idris’s claim for defamation necessarily
raises a political question, it is not enough that resolving the
suit might (or might not) implicate a military decision of the
President — any more than review of the Executive’s
decision to detain a person as an enemy combatant might (or
might not) reflect upon the military’s decision to seize that
person in the war zone, see Boumediene v. Bush, 128 S. Ct.
2229, 2262–74 (2008) (holding Detainee Treatment Act of
2005 violates habeas corpus Suspension Clause, U.S. CONST.
art. I, § 9, cl. 2, an aspect of separation of powers, because
DTA does not allow detainee to introduce “previously
unavailable exculpatory evidence”). In addressing the issues
raised by such a suit, a court is asked neither to resolve any
question of policy, cf. Ct. op. at 6, nor to “conduct ... the
foreign relations of our government,” id. (quoting Oetjen v.
Cent. Leather Co., 246 U.S. 297, 302 (1918)).

Although the Court states it does not “find
decisionmaking in [the] fields [of foreign policy and national
security] exclusively within the President’s Commander-in-
Chief authority,” id. at 11 n.3, implicit in the Court’s
reasoning is the assumption that the Constitution bars the
Congress from conferring upon Idris a cause of action to
challenge the CIA’s statements, see, e.g., id. at 12 (“Plaintiffs’
defamation claim presents a challenge to the Executive’s
foreign policy and national security decisionmaking, two
areas clearly outside our authority”). Here, Idris asserts the
CIA had a duty under both the common law and an Act of
Congress (the APA) not to spread false information about
him; if he is correct, then he should be able to call upon the
courts to provide him the statutory remedy he seeks, see
Baker v. Carr, 369 U.S. 186, 211 (1962) (“it is error to
suppose that every case or controversy which touches foreign
relations lies beyond judicial cognizance”). It simply is not
 10
the case under our Constitution that the Congress has no role
in regulating the armed forces, see U.S. CONST. art. I, § 8, cls.
11, 14; cf. Hamdan v. Rumsfeld, 548 U.S. 557, 126 S. Ct.
2749, 2786 (2006) (President’s use of military commissions
must comply with statutory law) — let alone the CIA’s use of
defamatory statements — such that it may not impose upon
the Executive a legal obligation for the breach of which an
injured party will have a remedy at law. Idris may not be
defeased of his right (if any there be), nor the judiciary ousted
from its jurisdiction, solely because — as the Court would
have it — the President “fired missiles at a target of his
choosing,” Ct. op. at 7.

For support the Court cites several cases in which
plaintiffs have directly challenged military decisions of the
President. Id. To be sure, a challenge to the President’s
decisions regarding the “training, weaponry and orders” of
the military presents a political question. Gilligan v. Morgan,
413 U.S. 1, 4, 10 (1973) (internal quotation marks omitted)
(dismissing suit challenging decision to send National Guard
to quell civil disorder on college campus); see Bancoult v.
McNamara, 445 F.3d 427, 436 (D.C. Cir. 2006) (dismissing
challenge to “specific tactical measures allegedly taken to
depopulate” island and to construct military base there);
Luftig v. McNamara, 373 F.2d 664, 665–66 (D.C. Cir. 1967)
(dismissing suit seeking to bar deployment to Vietnam). In
this case, however, Idris challenges the CIA’s subsequent
portrayal of him as a terrorist — and there is an equally clear
line of cases in which we have heard, without constitutional
qualms, an individual’s statutory challenge to his designation
as an enemy combatant, thereby supposedly “becoming
arbiter of the President’s battlefield actions,” Ct. op. at 7.
See, e.g., Parhat v. Gates, 532 F.3d 834 (2008) (addressing
statutory claim of wrongful detention, brought under Detainee
Treatment Act); Chai v. Dep’t of State, 466 F.3d 125 (2006)
 11
(addressing statutory claim of wrongful designation as
terrorist organization, brought under 8 U.S.C. § 1189); Von
Zedtwitz v. Sutherland, 26 F.2d 525 (1928) (addressing
statutory claim of wrongful seizure of property, brought under
Trading with the Enemy Act). The Supreme Court has done
the same. See Boumediene, 128 S. Ct. 2229.

The Court finds those cases inapposite because “none ...
involved a textual commitment of authority to the political
branches,” Ct. op. at 11; see also id. at 12, but that merely
restates the Court’s reason for concluding Idris’s claim
presents a political question. The Court nowhere explains
why entertaining Idris’s claim would intrude upon the
President’s exclusive authority as Commander-in-Chief under
the Constitution any more than would hearing a claim of
wrongful detention of a person or seizure of property during a
war. If anything, I would have thought the decision to detain
a person or to seize property is more closely tied to the
conduct of war than the decision to label Idris a supporter of
terrorists.

The Court believes Parhat, Chai, and Von Zedtwitz raise
“an interesting question” it need not answer, namely, where
lies “the boundary between decisions properly made by the
judiciary and decisions constitutionally committed to the
political branches.” Id. at 12. The Court nonetheless
determines that Idris’s defamation claim lies on the far side of
that boundary, beyond the reach of judicial review. Although
the Court may insist Idris’s claim for defamation is “clearly
outside our authority,” id., it “does nothing more than assert
that [his] action may affect the foreign relations of the United
States[;] … that is surely not enough” to determine whether
the claim for defamation actually and necessarily raises a
political question. Simon v. Iraq, 529 F.3d 1187, 1197 (D.C.
Cir. 2008).
 12

* * *

Whether Idris is entitled to a trial on the merits of his
claim for defamation is not clear at this stage of the litigation;
the Government has not even filed its answer. Some of our
cases do imply a plaintiff may obtain a retraction from the
United States for defamation by one of its officers, e.g.,
Expeditions Unlimited Aquatic Enters., Inc. v. Smithsonian
Inst., 566 F.2d 289, 294 n.16 (1977) (en banc) (dictum stating
that “[u]nder certain circumstances, declaratory and
injunctive relief may be obtained against defamatory
statements by government officials”); see also Cmty. for
Creative Non-Violence v. Pierce, 814 F.2d 663, 671–73
(1987) (remanding claim of slander brought against federal
officer under D.C. common law), but there are reasons to
doubt Idris has a cause of action under the APA. For one, the
conduct he challenges might be “committed to agency
discretion by law.” 5 U.S.C. § 701(a)(2); cf. Saavedra Bruno
v. Albright, 197 F.3d 1153, 1162 (D.C. Cir. 1999) (holding
visa determinations are unreviewable under 5 U.S.C. §
701(a)(1) or § 702(1) and noting that no presumption of
reviewability applies “[w]hen it comes to matters touching on
national security or foreign affairs”). I would, however, leave
it to the district court on remand to address this question in
the first instance; the district court has not opined upon it and
the parties have not briefed the question sufficiently in this
court.

Nor is it obvious the common law would provide Idris a
remedy. Federal rather than D.C. common law likely governs
Idris’s claim because that claim implicates “the rights and
obligations of the United States,” Texas Indus., Inc. v.
Radcliff Materials, Inc., 451 U.S. 630, 641 (1981); see also
Boyle v. United Techs. Corp., 487 U.S. 500 (1988), and under
 13
federal common law the United States may be immune from
liability on the facts here alleged, see Barr v. Matteo, 360
U.S. 564, 575 (1959) (holding — prior to enactment of
Westfall Act — executive officers enjoyed absolute immunity
from liability for damages under common law of defamation
if they acted within “outer perimeter” of their authority); see
also Boyle, 487 U.S. 500; see generally ROBERT D. SACK,
SACK ON DEFAMATION § 8.2 (3d ed. 1999). Alternatively,
Idris’s common law right may have been preempted by a
statute or statutes that occupy the field. See Pac. Gas & Elec.
Co. v. State Energy Res. Conservation & Dev. Comm’n, 461
U.S. 190, 203–04 (1983) (“Absent explicit preemptive
language, Congress’ intent to supersede state law altogether
may be found from a scheme of federal regulation … so
pervasive as to make reasonable the inference that Congress
left no room for the States to supplement it, because the Act
of Congress may touch a field in which the federal interest is
so dominant that the federal system will be assumed to
preclude enforcement of state laws on the same subject, or
because the object sought to be obtained by the federal law
and the character of obligations imposed by it may reveal the
same purpose” (internal quotation marks omitted)); Hines v.
Davidowitz, 312 U.S. 52 (1941); see also Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396 (2003); Boyle, 487 U.S. 500.

* * *

As pleaded, Idris’s claim does not call upon the district
court to inquire in any way into the “President’s true
motivation” for the bombing, nor has the Government shown
the claim implicates any other military objective. Still, I
would not hold that the district court must entertain Idris’s
claim for defamation. I would hold only that, to the extent, if
any, that Idris has stated a claim upon which relief may be
granted, nothing in the constitutional allocation of authority
 14
between the political and the judicial branches requires that
the Court dismiss it.

III. Conclusion

For the reasons stated in Part I above, and not for the
reasons given by the Court, I concur in the judgment with
respect to the plaintiffs’ claim based upon the law of nations.
For the reasons stated in Part II above, I respectfully dissent
from the Court’s disposition of Idris’s claim for defamation.