United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2006 Decided April 21, 2006
No. 05-5049
OLIVIER BANCOULT, ET AL.,
APPELLANTS
v.
ROBERT S. MCNAMARA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02629)
Darrell Chichester, student counsel, argued the cause for
appellants. With him on the brief was Michael E. Tigar. Aaron
Lloyd, Ali A. Beydoun, Christine Parsadaian, Courtney J.
Nogar, Debra L. Spinelli-Hays, Emily Creighton, James B.
Cowden, Jennifer Dodenhoff, Karen Corrie, Laura Rotolo,
Melissa Mandor, and Timothy L. Foden, student counsel,
entered appearances.
Mark R. Freeman, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Daniel Meron, Acting Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Mark B. Stern, Attorney. Dana
J. Martin, Attorney, entered an appearance.
2
Before: TATEL, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: In this case, we confront serious
allegations involving events occurring forty years ago on the far
side of the world. Appellants claim the United States govern-
ment forcibly removed them from their homes on islands in the
Indian Ocean in order to construct a military base. The district
court dismissed all of Appellants’ claims against the United
States and the individual defendants. We affirm the district
court’s decision, finding that Appellants’ claims present
nonjusticiable political questions.
I
In his historic speech at Westminster College on March 5,
1946—the speech in which he first warned that an “iron curtain”
had descended over Europe—Sir Winston Churchill described
the “special relationship between the British Commonwealth
and Empire and the United States.” Blood, Toil, Tears and
Sweat: The Speeches of Winston Churchill 301 (David
Cannadine ed., 1989). Facing a looming Communist threat,
Churchill argued that a key component of this special relation-
ship needed to be military cooperation between the two nations,
cooperation that included “joint use of . . . Naval and Air Force
bases.” Id. The dispute we address today arose from one of
many instances in which Churchill’s call to collaboration was
heeded: the construction of the United States Navy Support
Facility Diego Garcia in the British Indian Ocean Territory
(BIOT).
The Chagos Archipelago, including the island of Diego
Garcia, is located in BIOT; the British have controlled these
islands since 1814. Appellants Olivier Bancoult, Jeanette
3
Therese Alexis, and Marie Isabelle France-Charlot claim to be
indigenous people of Chagos and the direct descendants of
indigenous Chagossians. Appellants Chagos Refugee Group and
Chagos Social Committee are non-profit associations that work
to further the welfare of the Chagossians. Appellants allege that,
in 1964, the British and American governments began secretly
negotiating the establishment of a U.S. military base in the
Indian Ocean; following the “Anglo-American survey,” the
governments decided upon Diego Garcia as the location for this
base. According to Appellants, the two countries decided to
depopulate the entire archipelago, obscuring the true nature of
their decision by portraying the islands’ inhabitants as seasonal
contract workers from Mauritius and Seychelles rather than
permanent citizens of BIOT.
As described by Appellants, the depopulation of the islands
occurred in three stages. First, beginning in 1965, Chagossians
who traveled outside the archipelago were not allowed to return.
Next, the United States allegedly placed an embargo on the
islands to prevent the delivery of food supplies in order to starve
the inhabitants out of the islands. According to Alexis, residents
were threatened with death if they did not leave, and all the cats
and dogs on Diego Garcia were slaughtered. In the third stage,
Appellants claim, the remaining inhabitants of Diego Garcia
were forced onto ships and sent to other islands in the archipel-
ago; the entire population of the archipelago was removed two
years later. Alexis claims the Chagossians were not fed during
the six-day sea voyage in harsh conditions; she states that her
mother was pregnant at the time of the journey but miscarried
the day after arriving in Seychelles.
Appellants contend the Chagossians were stranded in
Mauritius and Seychelles without housing, employment, or other
assistance, and have been denied the right to return to Chagos
ever since. Instead, Appellants state, they have been forced to
4
live in abject poverty in a foreign land, separated from their
family graves and native community. Appellants claim that they
have become ill by being exposed to diseases unknown in
Chagos and by living in impoverished and squalid conditions.
Bancoult states that his brother committed suicide due to the
frustration of not being able to provide for his family in Mauri-
tius. Appellants claim their real and personal property on Diego
Garcia was destroyed during the construction of the military
base. Finally, Appellants claim that the United States has
discriminated against them in its hiring practices at the Diego
Garcia base, hiring laborers from Mauritius, Seychelles, Sri
Lanka, and the Philippines but refusing to hire any Chagossians
(other than a few who concealed their ethnic heritage).
II
Appellants filed suit against the United States on December
20, 2001, on behalf of themselves and all similarly situated
Chagossians, seeking compensatory and punitive damages as
well as declaratory and injunctive relief.1 Several current and
former senior officials in the Departments of Defense and State
were also named as defendants under the Alien Tort Statute, 28
U.S.C. § 1350; the Chagossians claimed that these officials
knew or should have known of the decisions regarding depopu-
1
See also R. v. Sec’y of State for Foreign & Commonwealth
Affairs (Ex parte Bancoult), [2001] Q.B. 1067 (2000) (striking down
British immigration ordinance preventing the Chagossians from
returning to BIOT). In 2004, the Queen issued two Orders in Council
overruling the High Court’s decision and “restor[ing] full immigration
control over all the islands” of BIOT. See Written Ministerial
Statement of Parliamentary Under-Secretary of State for Foreign and
Commonwealth Affairs, 422 Parl. Deb. (Hansard), H.C. (2004) 32-
34WS, available at http://www.publications.parliament.uk/pa/cm200
304/cmhansrd/vo040615/wmstext/40615m03.htm.
5
lation and base construction and had direct authority over those
who carried out the actions that harmed the islanders.2 The
Chagossians’ claims included forced relocation; torture; racial
discrimination; cruel, inhuman, or degrading treatment; geno-
cide; intentional infliction of emotional distress; negligence;
trespass; and destruction of real and personal property.
The United States and the individual defendants filed
motions to dismiss, which the district court granted on Decem-
ber 21, 2004. Bancoult v. McNamara, 370 F. Supp. 2d 1 (2004).
The court began by addressing the claims against the individual
defendants, granting those defendants immunity under the
Westfall Act, 28 U.S.C. § 2679. Bancoult, 370 F. Supp. 2d at 6-
10. Under the Westfall Act, if the Attorney General certifies that
an employee of the federal government was “acting within the
scope of his office or employment” at the time of an incident,
any claims arising out of that incident are converted into claims
against the United States under the Federal Tort Claims Act
(FTCA). Id. at 6 (quoting 28 U.S.C. § 2679(d)(1)). The Attorney
General so certified, and the district court found that the
Chagossians did not rebut the certification or show that an
exception to Westfall immunity should apply. Id. at 10. Hence,
the claims against the individual defendants were converted into
FTCA claims against the United States. Id. The district court
then dismissed these claims, finding that the Chagossians had
failed to exhaust their administrative remedies, as required by 28
U.S.C. § 2675(a), and that the claims would be barred because
the injuries were suffered on foreign soil, an exception estab-
lished by 28 U.S.C. § 2680(k). Id. at 10-11 & n.8.
2
Three other defendants—Halliburton Corporation, Brown &
Root, Inc., and De Chazal Du Mee—were dismissed from the case and
are not involved in this appeal.
6
Next, the district court turned to the political question
doctrine, dismissing the remaining claims against the United
States for lack of subject matter jurisdiction. Id. at 12-17.
Applying the factors enumerated in Baker v. Carr, 369 U.S. 186,
217 (1962), the court found that (1) the “conduct of military
operations and foreign policy complained of in this case” was
the exclusive province of the political branches, Bancoult, 370
F. Supp. 2d at 15; (2) the court lacked adequate standards by
which to judge the “foreign policy and national security con-
cerns” involved in the case, id.; (3) the court could not appropri-
ately “determine the national defense needs of the U.S. military
in the Indian Ocean,” id. at 16; (4) entertaining the Chagossians’
claims would require the court to condemn the actions of
Congress and the executive, showing a lack of respect for the
political branches, id.; (5) unquestioning adherence to the
political branches’ decision to construct the military base was
required, id. at 17; and (6) disturbing the government’s “single
voice” on this issue would subject all three branches to potential
embarrassment, id.3
III
We begin our discussion by clarifying the sequence in
which we must address the issues raised. The “first and funda-
mental question” that we are “bound to ask and answer” is
whether the court has jurisdiction to decide the case. Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting
Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453
(1900)). “The requirement that jurisdiction be established as a
threshold matter ‘springs from the nature and limits of the
judicial power of the United States’ and is ‘inflexible and
3
The court also denied the Chagossians’ request for a preliminary
injunction, finding the request moot in light of the dismissal of all
claims against the United States and the individual defendants. Id.
7
without exception.’” Id. at 94-95 (brackets omitted) (quoting
Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382
(1884)). Therefore, a court must “address questions pertaining
to its or a lower court’s jurisdiction before proceeding to the
merits.” Tenet v. Doe, 125 S. Ct. 1230, 1235 n.4 (2005).
As we recently stated, “the courts lack jurisdiction over
political decisions that are by their nature ‘committed to the
political branches to the exclusion of the judiciary.’” Schneider
v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (quoting
Antolok v. United States, 873 F.2d 369, 379 (D.C. Cir. 1989)
(opinion of Sentelle, J.)). The political question doctrine is one
aspect of “the concept of justiciability, which expresses the
jurisdictional limitations imposed on the federal courts by the
‘case or controversy’ requirement” of Article III of the Constitu-
tion. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S.
208, 215 (1974); see also Hwang Geum Joo v. Japan, 413 F.3d
45, 47-48 (D.C. Cir. 2005). As we find this issue to be
dispositive, we do not reach any other jurisdictional issues, such
as sovereign immunity, nor the merits of Appellants’ claims.
IV
“The nonjusticiability of a political question is primarily a
function of the separation of powers.” Baker, 369 U.S. at 210.
The doctrine “excludes from judicial review those controversies
which revolve around policy choices and value determinations
constitutionally committed for resolution to the halls of Con-
gress or the confines of the Executive Branch.” Japan Whaling
Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). The
framework laid out by the Supreme Court in Baker has become
the authoritative taxonomy of the characteristics of political
questions:
8
Prominent on the surface of any case held to involve a
political question is found [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 determi-
nation of a kind clearly for nonjudicial discretion; or [4] the
impossibility of a court’s undertaking independent resolu-
tion without expressing lack of the respect due coordinate
branches of government; or [5] an unusual need for unques-
tioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
Baker, 369 U.S. at 217. “To find a political question, we need
only conclude that one factor is present, not all,” Schneider, 412
F.3d at 194, but “[u]nless one of these formulations is inextrica-
ble from the case at bar,” we may not dismiss the claims as
nonjusticiable under the political question doctrine, Baker, 369
U.S. at 217.
The instant case involves topics that serve as the quintessen-
tial sources of political questions: national security and foreign
relations. “Matters intimately related to foreign policy and
national security are rarely proper subjects for judicial interven-
tion.” Haig v. Agee, 453 U.S. 280, 292 (1981). “The conduct of
the foreign relations of our government is committed by the
Constitution to the executive and legislative—‘the politi-
cal’—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.” Oetjen v. Cent. Leather Co., 246
U.S. 297, 302 (1918). Foreign policy decisions
are wholly confided by our Constitution to the political
departments of the government, Executive and Legislative.
9
They are delicate, complex, and involve large elements of
prophecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for which
the Judiciary has neither aptitude, facilities nor responsibil-
ity and have long been held to belong in the domain of
political power not subject to judicial intrusion or inquiry.
Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103,
111 (1948). “In framing policies relating to the great issues of
national defense and security, the people are and must be, in a
sense, at the mercy of their elected representatives.” Pauling v.
McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963).4 Thus, “[t]he
fundamental division of authority and power established by the
Constitution precludes judges from overseeing the conduct of
foreign policy or the use and disposition of military power; these
matters are plainly the exclusive province of Congress and the
Executive.” Luftig v. McNamara, 373 F.2d 664, 665-66 (D.C.
Cir. 1967) (per curiam).
We recently discussed the Baker framework at length in
Schneider, which involved claims brought against the United
States and former National Security Advisor Henry Kissinger
for the alleged kidnapping, torture, and death of a Chilean
general. 412 F.3d at 191. The plaintiffs in that case alleged that
the United States had encouraged a military coup in Chile and
that General Schneider was “neutralized” in order to allow the
coup to succeed. Id. at 192. We found that “most” of the Baker
factors were present in the case, indicating that the political
question doctrine rendered the claims nonjusticiable. Id. at 194.
4
See also id. (recognizing that judges cannot “regard
[themselves] as some kind of Guardian Elders ordained to review the
political judgments of elected representatives of the people”).
10
Regarding the first Baker factor, we compiled an extensive
list of constitutional provisions that entrusted foreign affairs and
national security powers to the political branches:
Article I, Section 8 of the Constitution provides an enumer-
ation of powers of the legislature. That article is richly
laden with delegation of foreign policy and national
security powers. Direct allocation of such power is found in
Section 8, Clause 1, “the Congress shall have the Power To
. . . provide for the Common Defence . . .”; Clause 3, “To
regulate commerce with foreign nations”; Clause 10, “To
define and punish Piracies and Felonies committed on the
High Seas and Offenses against the Law of Nations”;
Clause 11, “To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and
Water”; Clause 12, “To raise and support Armies . . .”;
Clause 13, “To provide and maintain a Navy”; Clause 14,
“to make Rules for the Government and Regulation of the
land and naval Forces”; Clause 15, “To provide for calling
forth the Militia to . . . repel Invasions”; Clause 16, “To
provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be
employed in the Service of the United States.”
In addition to these direct allocations to the Congress
of these foreign relations and national security powers,
other sections and clauses of Article I bear on the subject
. . . . For example, Section 9 of Article I provides for the
suspension of the writ of habeas corpus “when in cases of
. . . invasion the public safety may require it.” Section 10
allocates to the Congress the authority to provide consent to
individual states, without which they may not “enter into
any Agreement or Compact with . . . a foreign Power, or
engage in War . . . .” This is not to mention the perhaps less
direct but undeniably real connection between national
11
security and other powers of Congress, such as that under
Article I, Section 8, Clause 1, to “lay and collect Taxes,”
and Clause 2, to “borrow money on the credit of the United
States.”
Just as Article I of the Constitution evinces a clear
textual allocation to the legislative branch, Article II
likewise provides allocation of foreign relations and
national security powers to the President, the unitary chief
executive. Article II, Section 2 provides, inter alia, that “the
President shall be Commander in Chief of the Army and
Navy of the United States, and of the Militia of the several
States, when called into the actual Service of the United
States . . . .” That same section further provides that the
President “shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, . . . [and to]
appoint Ambassadors, other public Ministers and Consuls.”
Section 3 of Article II provides that “he shall receive
Ambassadors and other public Ministers . . . and shall
Commission all the Officers of the United States,” includ-
ing obviously the officers of the military.
Id. at 194-95. We noted that the only analogous provision
regarding the judiciary is Article III, Section 1, which extends
our jurisdiction to “Cases affecting Ambassadors, other public
Ministers and Consuls.” Id. at 195. After establishing this
constitutional commitment of foreign policy to the political
branches, we found that the plaintiffs’ allegations fell squarely
within this realm of exclusivity: “[A]t the height of the Cold
War, officials of the executive branch . . . determined that it was
in the best interest of the United States to take such steps as they
deemed necessary” to combat the spread of communism in the
Western Hemisphere. Id.
12
Regarding the second Baker factor, we found “a lack of
judicially discoverable and manageable standards” for resolving
the claims. Id. at 196. We could not “recast[] foreign policy and
national security questions in tort terms,” as that would require
the court “to define the standard for the government’s use of
covert operations in conjunction with political turmoil in another
country.” Id. at 197. The third Baker factor implicated a similar
yet antecedent problem: the court would be unable as an initial
matter “[t]o determine whether drastic measures should be taken
in matters of foreign policy and national security,” id. (emphasis
added), let alone define standards for evaluating those measures.
Finally, we briefly noted the presence of the fourth Baker factor,
finding that we would express a lack of respect to a coordinate
branch of government if we passed judgment on the executive’s
decision to participate in the alleged covert operations. Id. at
198.
V
We recognize that “the contours of the [political question]
doctrine are murky and unsettled.” Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (opinion of
Bork, J.). Although the judiciary properly defers to the political
branches in most such cases, “it is error to suppose that every
case or controversy which touches foreign relations lies beyond
judicial cognizance.” Baker, 369 U.S. at 211. Not every political
case presents a political question. The Baker Court provided
several examples of ways in which judicial action might
“touch[]” foreign relations yet not encroach on the powers of the
political branches, such as by construing treaties or prior
executive statements in order to resolve disputes between private
parties. Id. at 212-13. In Population Institute v. McPherson, 797
F.2d 1062 (D.C. Cir. 1986), and DKT Memorial Fund, Ltd. v.
Agency for International Development, 810 F.2d 1236 (D.C. Cir.
1987), we noted that an indirect effect on foreign affairs would
13
not automatically render a case nonjusticiable. Population
Institute involved a challenge to an administrative interpretation
of an appropriations act that provided funding for international
family planning organizations. 797 F.2d at 1066-67. We found
the executive’s interpretation of the act to be reviewable despite
the possibility of a “vague impact” on foreign affairs; although
foreign policy judgments were implicit in the process of
disbursing the appropriated funds, the interpretation of the act
itself was not a political question. Id. at 1070. Similarly, in DKT
Memorial, we found that a challenge to an agency’s implemen-
tation of a policy statement was justiciable, as the plaintiffs did
“not seek to litigate the political and social wisdom” of the
policy. 810 F.2d at 1238. Thus, in both of those cases, we
undertook “a discriminating analysis of the particular question
posed”; based on the specific facts and claims at issue, we found
the cases to be justiciable, even though they “touche[d]” upon
foreign relations issues. Baker, 369 U.S. at 211. In the same
way, claims 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 “justicia-
ble, even if they implicate foreign policy decisions.” Comm. of
U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 935
(D.C. Cir. 1988) (quoting Ramirez de Arellano v. Weinberger,
745 F.2d 1500, 1515 (D.C. Cir. 1984) (en banc), vacated on
other grounds, 471 U.S. 1113 (1985), and citing Regan v. Wald,
468 U.S. 222 (1984) and Dames & Moore v. Regan, 453 U.S.
654 (1981)). Accordingly, “a challenge to the constitutionality
of the manner in which an agency sought to implement an
earlier policy pronouncement by the President” could be
justiciable, even if other challenges to the policy or its imple-
mentation might be barred. Schneider, 412 F.3d at 198 (citing
DKT Mem’l, 810 F.2d at 1238). Yet even though attenuated
connections to foreign affairs do not prevent judicial review, and
constitutional mandates may require it, generally “attacks on
14
foreign policymaking are nonjusticiable.” DKT Mem’l, 810 F.2d
at 1238 (citing Population Inst., 797 F.2d at 1068-70).
VI
Appellants concede, and we agree, that the decision to
establish a military base on Diego Garcia is not reviewable.
Appellants’ Br. at 15. That decision was an exercise of the
foreign policy and national security powers entrusted by the
Constitution to the political branches of our government, and we
could not reexamine the choice without making a “policy
determination of a kind clearly for nonjudicial discretion.”
Baker, 369 U.S. at 217. Executive branch officials “determined
that it was in the best interest of the United States,” Schneider,
412 F.3d at 195, to gain a military presence in the Indian Ocean;
they achieved this goal through negotiations with the British, a
process into which the courts may not interject their judgment.
See United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
319-20 (1936). As the district court stated, we have no “stan-
dards by which [we] can measure and balance the foreign policy
considerations at play in this case, such as the containment of
the Soviet Union in the Indian Ocean thirty years ago and . . .
the support of military operations in the Middle East” today.
Bancoult, 370 F. Supp. 2d at 15. If that decision is to be recon-
sidered, “the people are and must be, in a sense, at the mercy of
their elected representatives.” Pauling, 331 F.2d at 799.
However, Appellants contend that “[w]hile the Executive
made a political decision to secure the Chagos Islands, the
Chagossians were subjected to egregious and illegal conduct
during the depopulation process.” Appellants’ Br. at 13.
Appellants claim that the manner in which the policy decision
was implemented is distinct from the policy itself, and is thus
reviewable. Id. (citing Schneider, 412 F.3d at 197; DKT Memo-
rial, 810 F.2d at 1237; Population Institute, 797 F.2d 1062; and
15
Ramirez de Arellano, 745 F.2d at 1515). Similarly, at oral
argument, Appellants maintained that whereas the claims in
Schneider may have been “inextricable from the broader policy”
of encouraging a coup in Chile, the Chagossians’ claims can be
separated from the decision to establish the Diego Garcia base.
Recording of Oral Arg. at 3:40-5:41.
We are unconvinced that the claims presented here merely
“touch[]” on foreign policymaking. The specific tactical
measures allegedly taken to depopulate the Chagos Archipelago
and construct the Diego Garcia base are as inextricably inter-
twined with the underlying strategy of establishing a regional
military presence as the alleged “neutralization” of General
Schneider was with the policy of undermining Allende’s
government. See Schneider, 412 F.3d at 197. We are uncon-
vinced by Appellants’ efforts to distinguish this case from
Schneider; the same logic that compelled our application of the
political question doctrine in that case applies just as forcefully
here.
In each case, the policy and its implementation constitute a
sort of Möbius strip that we cannot sever without impermissibly
impugning past policy and promising future remedies that will
remain beyond our ken. Thus, just as we cannot review the
decision to establish a base in the Indian Ocean (as Appellants
concede), the same reasoning we applied in Schneider dictates
that we cannot review the manner in which that decision was
carried out. The political branches must “determine whether
drastic measures should be taken in matters of foreign policy
and national security,” id., and the President “must determine
what degree of force [a] crisis demands,” The Prize Cases, 67
U.S. (2 Black) 635, 670 (1863).5 We cannot second-guess the
5
See also Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850)
(stating that as Commander in Chief of the nation’s military forces, the
16
degree to which the executive was willing to burden itself by
protecting the Chagossians’ well-being while pursuing the
foreign policy goals of the United States; we may not dictate to
the executive what its priorities should have been. In this
respect, the specific steps taken to establish the base did not
merely touch on foreign policy, but rather constituted foreign
policy decisions themselves. If we were to hold that the execu-
tive owed a duty of care toward the Chagossians, or that the
executive’s actions in depopulating the islands and constructing
the base had to comport with some minimum level of
protections, we would be meddling in foreign affairs beyond our
institutional competence. The courts may not bind the execu-
tive’s hands on matters such as these, whether directly—by
restricting what may be done—or indirectly—by restricting how
the executive may do it. Finally, while 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. Cf. People’s Mojahedin Org. of Iran v.
U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999); Harbury
v. Deutch, 233 F.3d 596, 603-04 (D.C. Cir. 2000), rev’d in part,
Christopher v. Harbury, 536 U.S. 403 (2002).
VII
The same considerations that render nonjusticiable the
claims against the United States also bar the claims against the
individual Appellees. Even were Appellants to demonstrate that
the individual Appellees’ actions were not in conformance with
President may “employ them in the manner he may deem most
effectual”). While the current case does not involve battlefield
decisions, the tactical and logistical details of establishing an overseas
base are as much a matter of executive discretion as are strategic
decisions.
17
presidential orders, the actions alleged were still closely enough
connected to Appellees’ employment to bring them within the
ambit of the political question doctrine. Cf. Schneider, 412 F.3d
at 199 (“Each of the claims for relief alleges acts by the
Defendants which in the amended complaint consist only of the
National Security Advisor and the United States. Their joint
actions together can hardly be called anything other than foreign
policy.”). Although we need not resolve whether traditional
agency principles guide the application of the political question
doctrine, we have little trouble rejecting the claim that Appel-
lees’ acts fell outside the scope of their employment and
therefore receive no shelter from the political question doctrine.
The Restatement (Second) of Agency (1958) states:
Conduct of a servant is within the scope of employment if,
but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and
space limits;
(c) it is actuated, at least in part, by a purpose to serve the
master, and
(d) if force is intentionally used by the servant against
another, the use of force is not unexpectable by the master.
Restatement § 228(1).6 “To be within the scope of the employ-
ment, conduct must be of the same general nature as that
authorized, or incidental to the conduct authorized.” Restate-
ment § 229(1).
6
As we are not reaching the issue of Westfall certification, our
discussion of the “scope of employment” is confined to the context of
the political question doctrine; thus, we rely on general common law
principles rather than the law of a specific state, as we would consult
under Westfall. Cf. Kimbro v. Velten, 30 F.3d 1501, 1506 (D.C. Cir.
1994).
18
Assuming the allegations are correct, the individual
Appellees were authorized to depopulate the Chagos Archipel-
ago and establish a military base on Diego Garcia. All the acts
alleged to have harmed the Chagossians directly furthered, or at
least were incidental to, this authorized goal. The individual
Appellees were all high-level executive officers who inherently
possessed a large measure of discretion in carrying out the tasks
assigned to them by the President. When authorized acts
allegedly included removing an entire community from their
home islands, transferring them elsewhere, and replacing their
community with a military base, the use of harsh measures in the
course of completing the tasks cannot be unexpected. Thus, the
actions alleged to have caused harm to Appellants would not
have been outside the scope of Appellees’ employment.
For this reason, the claims against the individual Appellees
are barred by the same separation of powers concerns that
prevent the court from examining the claims against the United
States. Examining these claims would require the court to judge
the validity and wisdom of the executive’s foreign policy
decisions, as Appellees’ acts were inextricably part of those
policy decisions. This rationale does not entail some new form
of immunity for executive officers who take actions in pursuit
of foreign policy or national security goals; we merely hold that
when the political question doctrine bars suit against the United
States, this constitutional constraint cannot be circumvented
merely by bringing claims against the individuals who commit-
ted the acts in question within the scope of their employment.
VIII
Hence, we conclude that all the claims in this case present
nonjusticiable political questions. The judgment of the district
court is therefore
Affirmed.