United States Court of Appeals, Eleventh Circuit.
No. 96-2167.
Ahmet AKTEPE, as personal representative of the estate of his
son, Serkan Aktepe, deceased, Celal Kilinc, as personal
representative of the estate of his son Mustafa Kilinc, deceased,
Karim Aslan, Tayfun Balkan, Fahrettin Balkir, Mehmet Basal, Meftun
Dirman, Necati Erol, Murat Gunes, Nizamettin Guz, Fazli Kesgun, et
al., Plaintiffs-Appellants,
v.
USA, Defendant-Appellee.
Feb. 20, 1997.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-946-CIV-J-20), Harvey E. Schlesinger,
Judge.
Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit
Judge.
BLACK, Circuit Judge:
Approximately 300 Turkish Navy sailors appeal the district
court's order granting summary judgment in favor of the United
States on their claims for death and personal injury suffered when
two missiles fired from the USS SARATOGA (Saratoga) struck their
vessel during North Atlantic Treaty Organization (NATO) training
exercises. As this case presents a nonjusticiable political
question, we affirm the district court's grant of summary judgment.
I. BACKGROUND
The underlying facts are uncontested. During the fall of
1992, the United States, Turkey, and several other NATO members
participated in "Exercise Display Determination 1992," a combined
forces naval exercise under the overall command of Admiral J.M.
Boorda of the United States Navy. The forces of participating
nations were assigned to either of two multinational teams. Vice
Admiral T. Joseph Lopez of the United States Navy led the "Brown
Forces," which included the United States aircraft carrier
Saratoga. The opposing "Green Forces," including the Turkish
Destroyer TCG MUAVENET (Muavenet), were under the direct control of
Admiral Kroon of the Netherlands.
During the "enhanced tactical" phase of the training
exercises, the Brown Forces were to attempt an amphibious landing
at Saros Bay, Turkey against the resistance offered by the Green
Forces. Admiral Boorda ordered the units comprising each force to
actively seek and "destroy" each other. Both task force commanders
had full authority to engage the enemy when and where they deemed
appropriate and to use all warfare assets at their disposal to
achieve victory. Needless to say, all confrontations were intended
to be simulated attacks.
On October 1, 1992, the Combat Direction Center Officer aboard
the Saratoga decided to launch a simulated attack on nearby
opposition forces utilizing the Sea Sparrow missile system. After
securing the approval of the Saratoga's Commanding Officer and the
Battle Group Commander, the Combat Direction Center Officer
implemented the simulated assault plan. Without providing prior
notice, officers on the Saratoga woke the enlisted Sea Sparrow
missile team and directed them to conduct the simulated attack.
Certain members of the missile firing team were not told that the
exercise was a drill, rather than an actual event.
As the drill progressed, the missile system operator used
language to indicate he was preparing to fire a live missile, but
due to the absence of standard terminology, the responsible
officers failed to appreciate the significance of the terms used
and the requests made. Specifically, the Target Acquisition System
operator issued the command "arm and tune," terminology the console
operators understood to require arming of the missiles in
preparation for actual firing. The officers supervising the drill
did not realize that "arm and tune" signified a live firing. As a
result, the Saratoga inadvertently fired two live Sea Sparrow
missiles at the Muavenet. Both missiles struck the Muavenet,
resulting in several deaths and numerous injuries.
On September 29, 1994, some of the Turkish Navy sailors
serving aboard the Muavenet instituted this action by suing the
United States under the Public Vessels Act, 46 U.S.C.App. §§ 781-
790, and the Death on the High Seas Act, 46 U.S.C.App. §§ 761-768.
The present action encompasses 2 wrongful death claims and 299
personal injury claims arising out of the inadvertent missile
firing. On September 22, 1995, the United States filed a motion
for summary judgment, contending that this case presents a
nonjusticiable political question. The district court granted the
motion by order issued January 2, 1996.1 On appeal, Appellants
contend that the district court erred by dismissing its claims
under the political question doctrine.
II. ANALYSIS
The justiciability of a controversy depends not upon the
1
Although the district court declined to reach the issue,
the order granting summary judgment also suggested that dismissal
probably would have been required under Feres v. United States,
340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). As we conclude
that this case presents a nonjusticiable political question, we
decline to address the applicability of Feres doctrine.
existence of a federal statute, but upon whether judicial
resolution of that controversy would be consonant with the
separation of powers principles embodied in the Constitution. See
Dickson v. Ford, 521 F.2d 234, 235 (5th Cir.), cert. denied, 424
U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 360 (1975). Separation of
powers is a doctrine to which the courts must adhere even in the
absence of an explicit statutory command. Tiffany v. United
States, 931 F.2d 271, 276 (4th Cir.1991), cert. denied, 502 U.S.
1030, 112 S.Ct. 867, 116 L.Ed.2d 773 (1992). Restrictions derived
from the separation of powers doctrine prevent the judicial branch
from deciding "political questions," controversies that revolve
around policy choices and value determinations constitutionally
committed for resolution to the legislative or executive branches.
Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 230,
106 S.Ct. 2860, 2866, 92 L.Ed.2d 166 (1986); Abebe-Jira v. Negewo,
72 F.3d 844, 848 (11th Cir.), cert. denied, --- U.S. ----, 117
S.Ct. 96, 136 L.Ed.2d 51 (1996).
In Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7
L.Ed.2d 663 (1962), the Supreme Court identified six hallmarks of
political questions, any one of which may carry a controversy
beyond justiciable bounds:
[1] a textually demonstrable constitutional commitment of the
issue to a coordinate political department; [2] a lack of
judicially discoverable and manageable standards for resolving
it; [3] the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial
discretion; [4] the impossibility of a court's undertaking
independent resolution without expressing lack of the respect
due coordinate branches of government; [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.
For invocation of the political question doctrine to be
appropriate, at least one of these characteristics must be evident.
Id. at 217, 82 S.Ct. at 710.
Foreign policy and military affairs figure prominently among
the areas in which the political question doctrine has been
implicated. The Supreme Court has declared that "[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, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640 (1981).
The Constitution commits the conduct of foreign affairs to the
executive and legislative branches of government. See, e.g.,
Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309,
311, 62 L.Ed. 726 (1918); Dickson, 521 F.2d at 236. At the same
time, it is error to suppose that every case or controversy which
touches foreign relations lies beyond judicial cognizance. Baker,
369 U.S. at 211, 82 S.Ct. at 707. Ultimately, whether a foreign
relations controversy lies beyond judicial cognizance requires
"discriminating analysis of the particular question posed, in terms
of the history of its management by the political branches, of its
susceptibility to judicial handling in light of its nature and
posture in the specific case, and the possible consequences of
judicial action." Id.
In a related manner, the political branches of government are
accorded a particularly high degree of deference in the area of
military affairs. Owens v. Brown, 455 F.Supp. 291, 299
(D.D.C.1978). The Constitution emphatically confers authority over
the military upon the executive and legislative branches of
government. U.S. Const. art. I, § 8, cls. 11-16 (granting Congress
the power to declare war and to provide for, organize, arm,
maintain, and govern the military); U.S. Const. art. II, § 2
(providing the President shall be the Commander-in-Chief of the
armed forces); see also United States v. Stanley, 483 U.S. 669,
682, 107 S.Ct. 3054, 3063, 97 L.Ed.2d 550 (1987) (noting the
insistence with which the Constitution granted authority over the
Army, Navy, and militia to the political branches). The Supreme
Court has generally declined to reach the merits of cases requiring
review of military decisions, particularly when those cases
challenged the institutional functioning of the military in areas
such as personnel, discipline, and training. See, e.g., Chappell
v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 2368, 76 L.Ed.2d 586
(1983) (concluding that unique disciplinary structure of the
military establishment precluded enlisted military personnel from
seeking to recover from their superior officers for alleged
constitutional violations); Gilligan v. Morgan, 413 U.S. 1, 5-13,
93 S.Ct. 2440, 2443-47, 37 L.Ed.2d 407 (1973) (refusing to review
and assert continuing regulatory control over the training of the
Ohio National Guard); Orloff v. Willoughby, 345 U.S. 83, 90-92, 73
S.Ct. 534, 538-39, 97 L.Ed. 842 (1953) (holding that commissioning
of officers in the Army was a matter of discretion within the
province of the President).
As with many cases that directly implicate foreign relations
and military affairs, the instant controversy raises a
nonjusticiable political question. This suit exhibits most, if not
all, of the indicia of political questions identified by the
Supreme Court in Baker v. Carr. First, the Constitution commits
the issues raised by this action to the political branches of
government. The underlying events involve two nations engaged in
a NATO training exercise. The relationship between the United
States and its allies, like the broader question of which nations
we number among our allies, is a matter of foreign policy. As
courts are unschooled in "the delicacies of diplomatic negotiation
[and] the inevitable bargaining for the best solution of an
international conflict," the Constitution entrusts resolution of
sensitive foreign policy issues to the political branches of
government. See Smith v. Reagan, 844 F.2d 195, 199 (4th Cir.)
(quoting Holtzman v. Schlesinger, 484 F.2d 1307, 1312 (2d
Cir.1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d
286 (1974)), cert. denied, 488 U.S. 954, 109 S.Ct. 390, 102 L.Ed.2d
379 (1988). Similarly, the Constitution reserves to the
legislative and executive branches responsibility for developing
military training procedures that will ensure the combat
effectiveness of our fighting forces. See Gilligan, 413 U.S. at 5-
13, 93 S.Ct. at 2443-47; Nation Magazine v. United States Dep't of
Defense, 762 F.Supp. 1558, 1567 (S.D.N.Y.1991).
Second, no judicially discoverable and manageable standards
exist for resolving the questions raised by this suit. In order to
determine whether the Navy conducted the missile firing drill in a
negligent manner, a court would have to determine how a reasonable
military force would have conducted the drill. As the Supreme
Court noted in a related context, "it is difficult to conceive of
an area of governmental activity in which the courts have less
competence." Gilligan, 413 U.S. at 10, 93 S.Ct. at 2446.
Decisions relative to training result from a complex, subtle
balancing of many technical and military considerations, including
the trade-off between safety and greater combat effectiveness. See
Boyle v. United Technologies Corp., 487 U.S. 500, 511, 108 S.Ct.
2510, 2518, 101 L.Ed.2d 442 (1988). Courts will often be without
knowledge of the facts or standards necessary to assess the wisdom
of the balance struck. Rappenecker v. United States, 509 F.Supp.
1024, 1029 (N.D.Cal.1980). More particularly, courts lack
standards with which to assess whether reasonable care was taken to
achieve military objectives while minimizing injury and loss of
life. See DaCosta v. Laird, 471 F.2d 1146, 1155 (2d Cir.1973);
Rappenecker, 509 F.Supp. at 1030.
Third, resolving this case inevitably would require that
courts make initial policy decisions of a kind appropriately
reserved for military discretion. For example, a court could not
conclude that the Navy behaved negligently when it declined to
advise each member of the Sea Sparrow missile team that the firing
was a drill without rendering a policy determination regarding the
necessity of simulating actual battle conditions. Trained
professionals, subject to the day-to-day control of the responsible
civilian authorities, necessarily must make comparative judgments
on the merits as to evolving methods of training, equipping, and
controlling military forces with respect to their duties under the
Constitution. Gilligan, 413 U.S. at 8, 93 S.Ct. at 2444-45. It
would be inappropriate for a district court to undertake this
responsibility in the unlikely event that it possessed the
requisite technical competence to do so. Id. at 8, 93 S.Ct. at
2445.
Fourth, adjudicating this case would express a lack of respect
for the political branches of government by subjecting their
discretionary military and foreign policy decisions to judicial
scrutiny, notwithstanding the judiciary's relative lack of
expertise in these areas. The interjection of tort law into the
realms of foreign policy and military affairs would effectively
permit judicial reappraisal of judgments the Constitution has
committed to the other branches. Tiffany, 931 F.2d at 278.
Appellants' effort to cast their suit as a common negligence
action directed at lower-level military operatives is unconvincing.
The allegations of the complaint launch a far more sweeping assault
on the Navy's practices than Appellants acknowledge. The complaint
alleges negligence relating to Navy communication, training, and
drill procedures. Moreover, even if the complaint actually
targeted only operational level personnel, that fact would not
eliminate the justiciability problem. The court would still have
to decide how the weapon system operator should have behaved. In
the present context, such an inquiry might require the judiciary to
determine whether members of the Sea Sparrow missile team should
have demanded confirmation of their superior's apparent instruction
to fire a live missile. Such judicial intrusion into military
practices would impair the discipline that the courts have
recognized as indispensable to military effectiveness. See, e.g.,
Chappell, 462 U.S. at 300, 103 S.Ct. at 2365-66 (noting that "the
habit of immediate compliance with military procedures and orders
must be virtually reflex with no time for debate or reflection").
III. CONCLUSION
This case presents a nonjusticiable political question because
it would require a court to interject itself into military
decisionmaking and foreign policy, areas the Constitution has
committed to coordinate branches of government.
AFFIRMED.