El-Shifa Pharmaceutical Industries Co. v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 16, 2009 Decided June 8, 2010

No. 07-5174

EL-SHIFA PHARMACEUTICAL INDUSTRIES COMPANY AND

SALAH EL DIN AHMED MOHAMMED IDRIS,

APPELLANTS

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 01cv00731)

Christian G. Vergonis argued the cause for appellants.

With him on the briefs were Stephen J. Brogan, Timothy J.

Finn, and Katherine E. Stern.

Beth S. Brinkmann, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for appellee.

With her on the brief were Mark B. Stern and Dana J. Martin,

Attorneys.

Before: SENTELLE, Chief Judge, and GINSBURG,

HENDERSON, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH,

and KAVANAUGH, Circuit Judges.

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Opinion for the Court filed by Circuit Judge GRIFFITH.

Opinion concurring in the judgment filed by Circuit

Judge GINSBURG, with whom Circuit Judge ROGERS joins.

Opinion concurring in the judgment filed by Circuit

Judge KAVANAUGH, with whom Chief Judge SENTELLE joins,

and with whom Circuit Judges GINSBURG and ROGERS join as

to Part I.

GRIFFITH, Circuit Judge: The owners of a Sudanese

pharmaceutical plant sued the United States for unjustifiably

destroying the plant, failing to compensate them for its

destruction, and defaming them by asserting they had ties to

Osama bin Laden. The district court dismissed their

complaint. A panel of this court affirmed, holding that the

political question doctrine barred the plaintiffs’ claims. After

granting rehearing en banc, we now affirm the district court

on the same ground.

I.

On August 7, 1998, the terrorist network headed by

Osama bin Laden bombed United States embassies in Kenya

and Tanzania. Hundreds were killed and thousands injured.

On August 20, the United States responded by launching

nearly simultaneous missile strikes against two targets: a

terrorist training camp in Afghanistan and a factory in Sudan

believed to be “associated with the bin Ladin network” and

“involved in the production of materials for chemical

weapons.” President William J. Clinton, Address to the

Nation on Military Action Against Terrorist Sites in

Afghanistan and Sudan, 2 PUB. PAPERS 1460, 1461 (Aug. 20,

1998) [hereinafter Address to the Nation].

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President Clinton addressed the American people,

explaining “the objective of this action and why it was

necessary.” Id. at 1460. “Our target was terror; our mission

was clear: to strike at the network of radical groups affiliated

with and funded by Usama bin Ladin, perhaps the preeminent

organizer and financier of international terrorism in the world

today.” Id. “The risks from inaction, to America and the

world, would be far greater than action,” the President

proclaimed, “for that would embolden our enemies, leaving

their ability and their willingness to strike us intact.” Id. at

1461.

In a letter to the Congress “consistent with the War

Powers Resolution,” the President reported that the strikes

“were a necessary and proportionate response to the imminent

threat of further terrorist attacks against U.S. personnel and

facilities” and “were intended to prevent and deter additional

attacks by a clearly identified terrorist threat.” President

William J. Clinton, Letter to Congressional Leaders Reporting

on Military Action Against Terrorist Sites in Afghanistan and

Sudan, 2 PUB. PAPERS 1464, 1464 (Aug. 21, 1998). The

following day, in a radio address to the nation, President

Clinton explained his decision to take military action, stating,

“Our goals were to disrupt bin Ladin’s terrorist network and

destroy elements of its infrastructure in Afghanistan and

Sudan. And our goal was to destroy, in Sudan, the factory

with which bin Ladin’s network is associated, which was

producing an ingredient essential for nerve gas.” President

William J. Clinton, The President’s Radio Address, 2 PUB.

PAPERS 1464, 1465 (Aug. 22, 1998). Citing “compelling

evidence that the bin Ladin network was poised to strike at us

again” and was seeking to acquire chemical weapons, the

President declared that “we simply could not stand idly by.”

Id.

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Other government officials elaborated upon the

President’s justifications for the attack on the plant. On the

day of the strike, the Secretary of Defense stated that bin

Laden “had some financial interest in contributing to this

particular facility.” Compl. at 13, El-Shifa Pharm. Indus. Co.

v. United States, 402 F. Supp. 2d 267 (D.D.C. 2005) (Civ. No.

01-731). An unnamed “senior intelligence official” asserted at

a press briefing, “[W]e know that bin Laden has made

financial contributions to the Sudanese Military Industrial

Complex[,] of which, we believe, the Shifa pharmaceutical

plant is part.” Id. And on August 23, the National Security

Advisor maintained that “Osama bin Laden was providing

key financial help for the plant.” Id.

The plaintiffs in this case are the El-Shifa Pharmaceutical

Industries Company (El-Shifa), the owner of the plant, and

Salah El Din Ahmed Mohammed Idris (Idris), the principal

owner of El-Shifa. They allege that striking the plant was a

mistake, that it “was not a chemical weapons facility, was not

connected to bin Laden or to terrorism, and was not otherwise

a danger to public health and safety.” Id. at 6. Instead, the

plaintiffs contend, the plant was Sudan’s largest manufacturer

of medicinal products, responsible for producing over half the

pharmaceuticals used in Sudan. Because the case comes to us

on appeal from a dismissal for lack of subject-matter

jurisdiction, we take the plaintiffs’ allegations as true. See Tri-

State Hosp. Supply Corp. v. United States, 341 F.3d 571, 572

n.1 (D.C. Cir. 2003).

According to the plaintiffs, within days of the attack, the

press debunked the President’s assertions that the plant was

involved with chemical weapons and associated with bin

Laden. Confronted with their error, senior administration and

intelligence officials backpedaled, issuing what the plaintiffs

characterize as “revised” or “new justifications” for the strike

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and conceding that any relationship between bin Laden and

the plant was “indirect.” Compl. at 17–19. Although the

United States attacked the plant without knowing who owned

it, officials learned within three days of the strike that Idris

was the owner. After that point, “unidentified U.S.

government officials” began telling reporters that Idris

maintained direct or indirect financial relations with bin

Laden, purchased the plant on bin Laden’s behalf, acted as a

front man or agent for bin Laden in Sudan, and had “ties” to

bin Laden. Id. at 19–20. The plaintiffs contend that neither the

contemporaneous nor post-hoc justifications for the attack

were true: “All of the justifications for the attack advanced by

the United States were based on false factual premises and

were offered with reckless disregard of the truth based upon

grossly incomplete research and unreasonable analysis of

inconclusive intelligence.” Id. at 7.

This lawsuit is only one of several actions the plaintiffs

pursued to recoup their losses. They also sued the United

States in the Court of Federal Claims, seeking $50 million as

just compensation under the Takings Clause of the

Constitution. The court dismissed the suit on the ground that

“the enemy target of military force” has no right to

compensation for “the destruction of property designated by

the President as enemy war-making property.” El-Shifa

Pharm. Indus. Co. v. United States, 55 Fed. Cl. 751, 774

(2003). The United States Court of Appeals for the Federal

Circuit affirmed, holding that the plaintiffs’ takings claim

raised a nonjusticiable political question. See El-Shifa Pharm.

Indus. Co. v. United States, 378 F.3d 1346, 1361–70 (Fed.

Cir. 2004), cert. denied, 545 U.S. 1139 (2005). On the

legislative front, one member of the House of Representatives

introduced a bill to compensate those who suffered injuries or

property damage in the missile strike, see H.R. 894, 107th

Cong. (2001), and a resolution directing the claims court to

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investigate the matter and issue a report to the House, see

H.R. Res. 81, 107th Cong. (2001) (citing 28 U.S.C. §§ 1492,

2509). Both the bill and the resolution died in committee.

The plaintiffs brought this action in the United States

District Court for the District of Columbia after the CIA

denied their requests for compensation for the plant’s

destruction and for a retraction of the allegations that the

plaintiffs were involved with terrorism. The plaintiffs sought

at least $50 million in damages under the Federal Tort Claims

Act, claiming negligence in the government’s investigation of

the plant’s ties to chemical weapons and Osama bin Laden

and trespass in its destruction of the plant “without consent or

justification.” Compl. at 27. Their complaint also included a

claim under the law of nations seeking a judicial declaration

that the United States violated international law by failing to

compensate them for the unjustified destruction of their

property. Finally, the plaintiffs claimed that the President and

other senior officials defamed them by publishing false

statements linking Idris and the plant to bin Laden,

international terrorism, or chemical weapons, knowing those

statements were false or making them with reckless disregard

for their veracity. The plaintiffs sought extraordinary relief:

“[a] declaration that claims made by agents of the United

States that Mr. Idris or El-Shifa are connected to Osama bin

Laden, terrorist groups or the production of chemical weapons

are false and defamatory” and “[a]n order requiring the

United States to issue a retraction [of those claims] in the

form of a press release.” Id. at 31.

The district court granted the government’s motion to

dismiss the complaint for lack of subject-matter jurisdiction,

see FED. R. CIV. P. 12(b)(1), concluding that sovereign

immunity barred all of the plaintiffs’ claims. See El-Shifa, 402

F. Supp. 2d at 270–73. The court also noted that the complaint

7

“likely present[ed] a nonjusticiable political question.” Id. at

276. The plaintiffs filed a motion to alter the judgment with

respect to their claims for equitable relief, which the district

court denied. See El-Shifa Pharm. Indus. Co. v. United States,

No. 01-731, 2007 WL 950082 (D.D.C. Mar. 28, 2007).

The plaintiffs appealed, challenging only the dismissal of

their claims alleging a violation of the law of nations and

defamation. The plaintiffs have abandoned any request for

monetary relief, but still seek a declaration that the

government’s failure to compensate them for the destruction

of the plant violated customary international law, a

declaration that statements government officials made about

them were defamatory, and an injunction requiring the

government to retract those statements. A divided panel of

this court affirmed the district court, holding that these claims

are barred by the political question doctrine. See El-Shifa

Pharm. Indus. Co. v. United States, 559 F.3d 578 (D.C. Cir.

2009). We vacated the panel’s judgment and ordered

rehearing en banc. See El-Shifa Pharm. Indus. Co. v. United

States, 330 F. App’x 200 (D.C. Cir. 2009).

II.

“It is emphatically the province and duty of the judicial

department to say what the law is,” Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803), but some “[q]uestions, in

their nature political,” are beyond the power of the courts to

resolve, id. at 170. The political question doctrine is

“essentially a function of the separation of powers,” Baker v.

Carr, 369 U.S. 186, 217 (1962), and “excludes from judicial

review those controversies which revolve around policy

choices and value determinations constitutionally committed

for resolution to the halls of Congress or the confines of the

Executive Branch,” Japan Whaling Ass’n v. Am. Cetacean

8

Soc’y, 478 U.S. 221, 230 (1986). See also United States v.

Munoz-Flores, 495 U.S. 385, 394 (1990) (explaining that the

“doctrine is designed to restrain the Judiciary from

inappropriate interference in the business of the other

branches of Government”).

That some governmental actions are beyond the reach of

the courts reflects the Constitution’s limitation of the “judicial

power of the United States” to “cases” or “controversies.”

U.S. CONST. art. III; see DaimlerChrysler Corp. v. Cuno, 547

U.S. 332, 352 (2006) (“The doctrines of mootness, ripeness,

and political question all originate in Article III’s ‘case’ or

‘controversy’ language, no less than standing does.”);

Schlesinger v. Reservists Comm. To Stop the War, 418 U.S.

208, 215 (1974) (“[T]he concept of justiciability, which

expresses the jurisdictional limitations imposed upon federal

courts by the ‘case or controversy’ requirement of Art. III,

embodies both the standing and political question

doctrines . . . .”). “It is therefore familiar learning that no

justiciable ‘controversy’ exists when parties seek adjudication

of a political question.” Massachusetts v. EPA, 549 U.S. 497,

516 (2007).

In the seminal case of Baker v. Carr, the Supreme Court

explained that a claim presents a political question if it

involves:

[1] a textually demonstrable constitutional

commitment of the issue to a coordinate political

department; or [2] a lack of judicially discoverable and

manageable standards for resolving it; or [3] the

impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial

discretion; or [4] the impossibility of a court’s

undertaking independent resolution without expressing

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lack of the respect due coordinate branches of

government; or [5] an unusual need for unquestioning

adherence to a political decision already made; or

[6] the potentiality of embarrassment from

multifarious pronouncements by various departments

on one question.

369 U.S. at 217. “To find a political question, we need only

conclude that one [of these] factor[s] is present, not all.”

Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005).

Disputes involving foreign relations, such as the one

before us, are “quintessential sources of political questions.”

Bancoult v. McNamara, 445 F.3d 427, 433 (D.C. Cir. 2006).

Because these cases raise issues that “frequently turn on

standards that defy judicial application” or “involve the

exercise of a discretion demonstrably committed to the

executive or legislature,” Baker, 369 U.S. at 211, “[m]atters

intimately related to foreign policy and national security are

rarely proper subjects for judicial intervention,” Haig v. Agee,

453 U.S. 280, 292 (1981). “Yet it is error to suppose that

every case or controversy which touches foreign relations lies

beyond judicial cognizance.” Baker, 369 U.S. at 211. Even in

the context of military action, the courts may sometimes have

a role. See Gilligan v. Morgan, 413 U.S. 1, 11–12 (1973).

Therefore, we must conduct “a discriminating analysis of the

particular question posed” in the “specific case” before the

court to determine whether the political question doctrine

prevents a claim from going forward. Baker, 369 U.S. at 211;

see, e.g., Wilson v. Libby, 535 F.3d 697, 703–04 (D.C. Cir.

2008) (holding the political question doctrine did not bar a

challenge to disclosures “identifying a previously covert

agent” and therefore “implicat[ing] national security” because

the plaintiffs’ claims did “not challenge[] any foreign policy

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or national security decisions entrusted to the Executive

Branch”).

In undertaking this discriminating analysis, we note, for

example, that the political question doctrine does not bar a

claim that the government has violated the Constitution

simply because the claim implicates foreign relations. See

I.N.S. v. Chadha, 462 U.S. 919 (1983) (holding the one-House

legislative veto unconstitutional despite its use in matters of

foreign affairs and the war powers). Because the judiciary is

the “ultimate interpreter of the Constitution,” Baker, 369 U.S.

at 211, in most instances claims alleging its violation will

rightly be heard by the courts. See, e.g., Chadha, 462 U.S. at

941–42 (“No policy underlying the political question doctrine

suggests that Congress or the Executive, or both acting in

concert and in compliance with Art. I, can decide the

constitutionality of a statute; that is a decision for the

courts.”). But see, e.g., Nixon v. United States, 506 U.S. 224

(1993) (whether Senate has violated its duty to “try”

impeachments presents a political question); Luther v.

Borden, 48 U.S. (7 How.) 1 (1849) (Guarantee Clause is

enforceable only by Congress). Similarly, that a case may

involve the conduct of the nation’s foreign affairs does not

necessarily prevent a court from determining whether the

Executive has exceeded the scope of prescribed statutory

authority or failed to obey the prohibition of a statute or

treaty. See Japan Whaling, 478 U.S. at 230 (“[O]ne of the

Judiciary’s characteristic roles is to interpret statutes, and we

cannot shirk this responsibility merely because” of the

“interplay” between the statute and “the conduct of this

Nation’s foreign relations.”); see, e.g., Trans World Airlines,

Inc. v. Franklin Mint Corp., 466 U.S. 243, 254 n.25 (1984)

(holding the political question doctrine does not bar

consideration of whether a Civil Aeronautics Board order is

inconsistent with the Warsaw Convention); see also David J.

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Barron & Martin S. Lederman, The Commander in Chief at

the Lowest Ebb—Framing the Problem, Doctrine, and

Original Understanding, 121 HARV. L. REV. 689, 723 (2008)

(“If there is a party with constitutionally sufficient standing to

demand judicial protection from a presidential refusal to obey

a statute during war, it is not clear why there should be a

general rule that courts must leave the question to the political

branches.”).

We have consistently held, however, that courts are not a

forum for reconsidering the wisdom of discretionary decisions

made by the political branches in the realm of foreign policy

or national security. In this vein, we have distinguished

between claims requiring us to decide whether taking military

action was “wise”—“a ‘policy choice[] and value

determination[] constitutionally committed for resolution to

the halls of Congress or the confines of the Executive

Branch’”—and claims “[p]resenting purely legal issues” such

as whether the government had legal authority to act.

Campbell v. Clinton, 203 F.3d 19, 40 (D.C. Cir. 2000) (Tatel,

J., concurring) (quoting Japan Whaling, 478 U.S. at 230).

Accordingly, we have declined to adjudicate claims seeking

only a “determination[] whether the alleged conduct should

have occurred.” Harbury v. Hayden, 522 F.3d 413, 420 (D.C.

Cir. 2008). Despite some sweeping assertions to the contrary,

see, e.g., Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264

(D.C. Cir. 2006) (“Whatever Kissinger did as National

Security Advisor or Secretary of State can hardly be called

anything other than foreign policy [unreviewable under the

political question doctrine].” (internal quotation marks

omitted)), the presence of a political question in these cases

turns not on the nature of the government conduct under

review but more precisely on the question the plaintiff raises

about the challenged action. See Campbell, 203 F.3d at 40

(Tatel, J., concurring).

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The political question doctrine bars our review of claims

that, regardless of how they are styled, call into question the

prudence of the political branches in matters of foreign policy

or national security constitutionally committed to their

discretion. A plaintiff may not, for instance, clear the political

question bar simply by “recasting [such] foreign policy and

national security questions in tort terms.” Schneider, 412 F.3d

at 197 (explaining the courts could not determine whether

taking military action was “wrongful” as an element of a

wrongful death claim). Likewise—and contrary to the

position adopted by Judge Kavanaugh—a statute providing

for judicial review does not override Article III’s requirement

that federal courts refrain from deciding political questions.

See Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972)

(“Congress may not confer jurisdiction on Art. III federal

courts . . . to resolve ‘political questions,’ because suits of this

character are inconsistent with the judicial function under Art.

III.” (internal citation omitted)); cf. Gilligan, 413 U.S. at 8–9

(stating a circuit judge “correctly read Baker v. Carr” when

he wrote that “simply order[ing] compliance with the

standards set by Congress” could “draw the courts into a

nonjusticiable political question, over which we have no

jurisdiction” (quoting Morgan v. Rhodes, 456 F.2d 608, 619

(6th Cir. 1972) (Celebrezze, J., concurring in part and

dissenting in part))); Chi. & S. Air Lines, Inc. v. Waterman

S.S. Corp., 333 U.S. 103, 111 (1948) (declining to construe a

statute to require judicial review of foreign policy decisions

“wholly confided by our Constitution to the political

departments of the government, Executive and Legislative”);

Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality

opinion) (citing Waterman for the proposition that “‘[t]he

judicial Power’ created by Article III, § 1, of the Constitution

is not whatever judges choose to do or even whatever

Congress chooses to assign them” (citations omitted)). For

example, in reviewing the Secretary of State’s designation of

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a group as a “foreign terrorist organization” under the

Antiterrorism and Effective Death Penalty Act, 8 U.S.C. §

1189 (2006), we may decide whether the government has

followed the proper procedures, whether the organization is

foreign, and whether it has engaged in terrorist activity, but

we may not determine whether “the terrorist activity of the

organization threatens the security of United States nationals

or the national security of the United States,” id.

§ 1189(a)(1)(C). See People’s Mojahedin Org. of Iran v. U.S.

Dep’t of State (PMOI), 182 F.3d 17, 22–24 (D.C. Cir. 1999).

Whether this last criterion has been met presents a

nonjusticiable political question because the Secretary’s

assessments of whether the terrorist activities of foreign

organizations constitute threats to the United States “are

political judgments, ‘decisions of a kind for which the

Judiciary has neither aptitude, facilities nor responsibility and

have long been held to belong in the domain of political

power not subject to judicial intrusion or inquiry.’” PMOI,

182 F.3d at 23 (quoting Waterman, 333 U.S. at 111). Neither

a common law nor statutory claim may require the court to

reassess “policy choices and value determinations” the

Constitution entrusts to the political branches alone. Japan

Whaling, 478 U.S. at 230.

The conclusion that the strategic choices directing the

nation’s foreign affairs are constitutionally committed to the

political branches reflects the institutional limitations of the

judiciary and the lack of manageable standards to channel any

judicial inquiry into these matters. See generally Nixon, 506

U.S. at 228–29 (“[T]he concept of a textual commitment to a

coordinate political department is not completely separate

from the concept of a lack of judicially discoverable and

manageable standards for resolving it; the lack of judicially

manageable standards may strengthen the conclusion that

there is a textually demonstrable commitment to a coordinate

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branch.”). We must decline to reconsider what are essentially

policy choices because “[t]he Judiciary is particularly ill

suited to make such decisions, as ‘courts are fundamentally

underequipped to formulate national policies or develop

standards for matters not legal in nature.’” Japan Whaling,

478 U.S. at 230 (quoting United States ex rel. Joseph v.

Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981)). In military

matters in particular, the courts lack the competence to assess

the strategic decision to deploy force or to create standards to

determine whether the use of force was justified or well-

founded.

The complex, subtle, and professional decisions as to

the . . . control of a military force are essentially

professional military judgments, subject always to

civilian control of the Legislative and Executive

Branches. The ultimate responsibility for these decisions

is appropriately vested in branches of the government

which are periodically subject to electoral accountability.

Gilligan, 413 U.S. at 10. It is not the role of judges to second-

guess, with the benefit of hindsight, another branch’s

determination that the interests of the United States call for

military action.

The case at hand involves the decision to launch a

military strike abroad. Conducting the “discriminating

analysis of the particular question posed” by the claims the

plaintiffs press on appeal, Baker, 369 U.S. at 211, we

conclude that both raise nonjusticiable political questions. The

law-of-nations claim asks the court to decide whether the

United States’ attack on the plant was “mistaken and not

justified.” Compl. at 30. The defamation claim similarly

requires us to determine the factual validity of the

government’s stated reasons for the strike. If the political

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question doctrine means anything in the arena of national

security and foreign relations, it means the courts cannot

assess the merits of the President’s decision to launch an

attack on a foreign target, and the plaintiffs ask us to do just

that. Therefore, we affirm the district court’s dismissal of the

plaintiffs’ law-of-nations and defamation claims.

A.

The plaintiffs’ complaint asserts that customary

international law requires states to compensate foreign

nationals for property destruction that is “mistaken and not

justified.” The United States purportedly violated this norm

when the CIA denied the plaintiffs’ request for compensation

for the destruction of the plant. See id. at 29–30. Because we

hold this claim barred by the political question doctrine, we

need not decide whether customary international law requires

compensation in these circumstances, or, if so, whether the

plaintiffs have adequately stated a federal cause of action. See

generally Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).

We begin our analysis with the rule we have already

identified and upon which both parties agree: courts cannot

reconsider the wisdom of discretionary foreign policy

decisions. See Appellants’ En Banc Br. at 22. The plaintiffs’

law-of-nations claim falls squarely within this prohibition

because it would require us to declare that the bombing of the

El-Shifa plant was “mistaken and not justified.” Whether an

attack on a foreign target is justified—that is whether it is

warranted or well-grounded—is a quintessential “policy

choice[] and value determination[] constitutionally committed

for resolution to the halls of Congress or the confines of the

Executive Branch.” Japan Whaling, 478 U.S. at 230. The

plaintiffs appear to recognize this. On appeal they imply that

they need only prove the United States failed to compensate

16

them for an attack that was “mistaken.” See Appellants’ En

Banc Br. at 49–54 & n.6; see also id. at 53 (conceding that

“whether the attack was reasonable and justified when it

occurred” presents a “nonjusticiable question”). By asserting

the El-Shifa bombing was “mistaken,” the plaintiffs

apparently mean that the United States would not have

launched the strike if the relevant decisionmakers knew at the

time what they allegedly know now—that the plant was

neither involved in producing chemical weapons nor

associated with bin Laden. See id. at 9 (describing the plant as

“targeted in error”); id. at 14 (arguing the bombing was

mistaken because “evidence [has] emerged that the plant was

in fact innocent property”). But the political question doctrine

does not permit us to mimic the constitutional role of the

political branches by guessing how they would have

conducted the nation’s foreign policy had they been better

informed. Whether the circumstances warrant a military

attack on a foreign target is a “substantive political

judgment[] entrusted expressly to the coordinate branches of

government,” Gilligan, 413 U.S. at 11, and using a judicial

forum to reconsider its wisdom would be anathema to the

separation of powers. Undertaking a counterfactual inquiry

into how the political branches would have exercised their

discretion had they known the facts alleged in the plaintiffs’

complaint would be to make a political judgment, not a legal

one.

Moreover, Baker’s prudential considerations counsel

judicial restraint as well. First, the court lacks judicially

manageable standards to adjudicate whether the attack on the

El-Shifa plant was “mistaken and not justified.” See Baker,

369 U.S. at 217; cf. Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 490–91 (1999) (explaining the courts

are “ill equipped to determine the[] authenticity and utterly

unable to assess the[] adequacy” of the government’s “reasons

17

for deeming nationals of a particular country a special

threat”). We could not decide this question without first

fashioning out of whole cloth some standard for when

military action is justified. The judiciary lacks the capacity for

such a task. As we once said of a claim that certain covert

operations were “wrongful,” “There are no [judicially]

discoverable and manageable standards for the resolution of

such a claim.” Schneider, 412 F.3d at 197; see also id. (“To

determine whether drastic measures should be taken in

matters of foreign policy and national security is not the stuff

of adjudication, but of policymaking.”). Second, the decision

to take military action is a “policy determination of a kind

clearly for nonjudicial discretion.” Baker, 369 U.S. at 217.

Such foreign policy decisions are “delicate, complex, and

involve large elements of prophecy. . . . They are decisions of

a kind for which the Judiciary has neither aptitude, facilities

nor responsibility . . . .” Waterman, 333 U.S. at 111. In short,

the decision to launch the military attack on the El-Shifa plant

was constitutionally committed to the political branches, see,

e.g., U.S. CONST. art. I, § 8, cl. 11; id. art. II, § 2, cl. 1; see

also Schneider, 412 F.3d at 194–95, and this court is neither

an effective nor appropriate forum for reweighing its merits.

See Harbury, 522 F.3d at 420. Because the plaintiffs’ law-of-

nations claim requires the court to second-guess that decision,

we conclude that it presents a nonjusticiable political

question.

Indeed, the law-of-nations claim suffers from flaws

similar to those the Federal Circuit identified in the plaintiffs’

previous claim that the bombing was a taking because it was

mistaken. As the Federal Circuit explained, “In

essence . . . the [plaintiffs] are contending that the President

failed to assure himself with a sufficient degree of certainty”

of the factual basis for his decision to strike the plant. El-

Shifa, 378 F.3d at 1365. The plaintiffs would have the federal

18

courts “provide them with an opportunity to test that

contention, and in the process, require this court to elucidate

the . . . standards that are to guide a President when he

evaluates the veracity of military intelligence.” Id. This we

cannot do.

In refusing to declare the El-Shifa attack “mistaken and

not justified,” we do not mean to imply that the contrary is

true. We simply decline to answer a question outside the

scope of our authority. By requiring that we reserve judgment,

the political question doctrine protects the Congress and the

Executive from judicial “invasion of their sphere,” Antolok v.

United States, 873 F.2d 369, 383 (D.C. Cir. 1989) (opinion of

Sentelle, J.), and guards against “the reputation of the Judicial

Branch [being] ‘borrowed by the political Branches to cloak

their work in the neutral colors of judicial action,’” PMOI,

182 F.3d at 25 (quoting Mistretta v. United States, 488 U.S.

361, 407 (1989)).

B.

The plaintiffs also claim that anonymous government

officials defamed them by making statements linking them to

bin Laden and international terrorism. This claim fares no

better than their law-of-nations claim. It too would require the

court to reconsider the merits of the decision to strike the El-

Shifa plant by determining whether the government’s

justifications for the attack were false. See RESTATEMENT

(SECOND) OF TORTS § 558(a) (1977).

We begin by noting that the court cannot judge the

veracity of the President’s initial public explanations for the

attack for the same reasons we cannot examine whether the

attack was “mistaken and not justified.” The President’s

statements justifying the attack are “inextricably intertwined”

with a foreign policy decision constitutionally committed to

19

the political branches, Bancoult, 445 F.3d at 436, because

determining whether the President’s statements were true

would require a determination “whether the alleged conduct

should have occurred,” Harbury, 522 F.3d at 420. A decision

in favor of the plaintiffs would unavoidably involve a

rejection of the Clinton Administration’s stated justifications

for launching the missile strike. A decision against the

plaintiffs would affirm the wisdom of the Administration’s

decision to attack.

The plaintiffs maintain, however, that even if the political

question doctrine bars review of the President’s initial

justifications for the attack, the court may nevertheless judge

the veracity of the subsequent justifications, which, they

allege, offer different explanations for the strike. These

allegedly defamatory statements are reviewable, the plaintiffs

contend, because they do not state “the actual justification for

the decision to attack the plant.” Appellants’ En Banc Reply

Br. at 3. Rather, the plaintiffs allege that these statements are

“post hoc pretext”—defamatory efforts at political damage

control. Id.; see also Compl. at 1 (stating the action arises out

of “false and defamatory statements made by United States

government officials seeking to justify” the destruction of the

plant); Compl. at 21–22 (alleging “government officials

continued to justify their actions with statements intended to

suggest that Mr. Idris was, in fact, associated with

terrorism.”). According to the plaintiffs, we can review these

later justifications for the attack because they bear no relation

to the President’s initial justifications—that the plant was

associated with bin Laden and involved in producing

chemical weapons.

We disagree. The allegedly defamatory statements cannot

be severed from the initial justifications for the attack. The

court cannot adjudicate the truth of the government’s later

20

justifications because, despite the plaintiffs’ arguments to the

contrary, they are fundamentally the same as the initial

justifications. In reaching this conclusion, we need look no

further than the plaintiffs’ complaint. Taking all of its

allegations as true, we find no material difference between the

allegedly defamatory statements and the President’s

contemporaneous explanation of his decision to take military

action. On the day the United States destroyed the El-Shifa

plant, President Clinton told the American people that he

ordered the strike in part because the plant was “associated

with the bin Laden network” and was a “chemical weapons-

related facility.” Compl. at 7, 13; see also Address to the

Nation, 2 PUB. PAPERS at 1461; President William J. Clinton,

Remarks in Martha’s Vineyard, Massachusetts, on Military

Action Against Terrorist Sites in Afghanistan and Sudan, 2

PUB. PAPERS 1460, 1460 (Aug. 20, 1998). In their prayer for

relief, the plaintiffs describe the allegedly defamatory

statements as “claims . . . that Mr. Idris or El-Shifa are [sic]

connected to Osama bin Laden, terrorist groups or the

production of chemical weapons.” Compl. at 31; see also id.

at 19 (detailing “numerous statements to news reporters

falsely describing Salah Idris as an associate of Osama bin

Laden and international terrorist organizations”). This

characterization of the allegedly defamatory statements

closely tracks the President’s own description of his reasons

for launching the attack.

All of the allegedly defamatory statements essentially

repeat the President’s initial justification for the strike. Each

describes a connection between bin Laden and the plant

through its owner, Salah Idris. For example, “U.S.

intelligence officials” stated Idris dealt financially with

members of Islamic Jihad, which had been “absorbed into

[bin Laden’s] terror network.” Id. at 20. And government

officials claimed “the owner and manager of the plant

21

were . . . front men for bin Laden.” Id.; see also id. at 19

(citing a “Washington official” describing Idris as “a partner

with bin Laden in other Sudanese businesses”); id. at 19–20

(quoting “one official” asserting that Idris “may have”

purchased the El-Shifa plant “on bin Laden’s behalf” and

“that he’s involved in money laundering, that he’s involved in

representing a lot of bin Laden’s interests in Sudan”).

Contrary to the plaintiffs’ contentions, these statements do not

represent a break from the President’s contemporaneous

explanation of his reasons for launching the strike. At most,

they elaborate upon the nature of the connection between the

plant and bin Laden—a connection the President offered on

the day of the attack as one reason for taking military action.

Declaring these later statements true or false would require us

to make the same judgment about the President’s initial

justification for the attack.

The plaintiffs contend that Idris’s alleged ties to bin

Laden—the factual issue at the heart of their defamation

claim—could not have played any part in the decision to

bomb the plant because, at the time of the strike, the United

States thought the plant was owned by the Sudanese

government and not by Idris. Therefore, they argue, the court

could declare the government’s allegations that Idris was

connected to bin Laden false without undermining the

government’s actual justifications for the attack. See

Appellants’ En Banc Br. at 25; Appellants’ En Banc Reply

Br. at 2–3. To be sure, at least one anonymous official had

previously suggested the plant belonged to the Sudanese

Military Industrial Complex. See Compl. at 13. But this is

beside the point. As the plaintiffs conceded before the en banc

court, “[T]he owner of the plant was immaterial to [President

Clinton’s] decision to attack the plant.” Oral Arg. Recording

at 11:48–:51. The President explained that the United States

targeted the plant because it was associated with bin Laden,

22

and officials continued to assert that same rationale when they

told reporters the plant’s owner was financially linked to bin

Laden’s network. A court’s pronouncement that the plant’s

owner had no financial ties to bin Laden would directly

contradict the government’s justification for the attack by

disclaiming the asserted association between the plant and the

bin Laden network.

The plaintiffs further argue that the political question

doctrine does not block their defamation claim because “by

the government’s own admission, the accusations challenged

as defamatory formed no part of the decision to attack the

plant.” Appellants’ En Banc Br. at 24 (emphasis added). But

none of the statements quoted in the complaint imply such an

admission. The plaintiffs rely on one statement, which

referenced “[n]ew evidence obtained since the attack.” See id.

at 24–25 (quoting Compl. at 19). The rest of the statement,

however, makes clear that their reliance is misplaced: “New

evidence obtained since the attack, one official said . . . , starts

to make the link between the plant’s current owner,

Salaheldin Idris, and bin Laden ‘more direct.’” Compl. at 19.

The official’s assertion that new evidence made the

connection between bin Laden and Idris “more direct” does

not give rise to an inference, as the plaintiffs suggest, that

there was no prior evidence of such a nexus. Indeed, the

statement of another anonymous official quoted in the

complaint suggests that the newer evidence merely

corroborated the evidence existing at the time of the attack.

See id. at 20 (quoting an anonymous official’s statement that

intelligence collected after the strike “increasingly points to

ties with (Osama) bin Laden” (emphasis added)). This

emphasizes that the veracity of the allegedly defamatory

statements is “inextricably intertwined,” Bancoult, 445 F.3d at

436, with the merits of the actual justifications for the attack

23

and underscores the nonjusticiability of the plaintiffs’

defamation claim.

C.

We conclude our political question analysis by

addressing the plaintiffs’ argument that they are asking

nothing more than that we review the government’s

designation of them as supporters of the nation’s enemies,

something courts have done in other contexts. See Appellants’

En Banc Br. at 23–30. This argument fails.

The plaintiffs point first to cases permitting judicial

review of the enemy status of persons detained after being

seized by the U.S. military on the battlefield. See, e.g.,

Boumediene v. Bush, 128 S. Ct. 2229 (2008); Parhat v. Gates,

532 F.3d 834 (D.C. Cir. 2008). But the political question

doctrine does not preclude judicial review of prolonged

Executive detention predicated on an enemy combatant

determination because the Constitution specifically

contemplates a judicial role in this area. See Boumediene, 128

S. Ct. at 2247 (“The [Suspension] Clause protects the rights of

the detained by affirming the duty and authority of the

Judiciary to call the jailer to account.” (emphasis added));

Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (discussing the

courts’ “time-honored and constitutionally mandated roles of

reviewing and resolving claims” of citizens challenging their

military detention). The plaintiffs can point to no comparable

constitutional commitment to the courts for review of a

military decision to launch a missile at a foreign target. Cf.

Bancoult, 445 F.3d at 437 (“[W]hile the presence of

constitutionally-protected liberties could require us to address

limits on the foreign policy and national security powers

assigned to the political branches, no such constitutional

claims are at issue in this case.”).

24

The plaintiffs also point to another line of cases in which

courts have reviewed Executive Branch determinations that a

certain asset is “enemy property” or belongs to a terrorist

organization and therefore is eligible for seizure pursuant to

statute. See, e.g., Chai v. Dep’t of State, 466 F.3d 125 (D.C.

Cir. 2006); Holy Land Found. for Relief & Dev. v. Ashcroft,

333 F.3d 156 (D.C. Cir. 2003); Von Zedtwitz v. Sutherland, 26

F.2d 525 (D.C. Cir. 1928); Bond v. United States, 2 Ct. Cl.

529 (1866). These cases are not helpful to the plaintiffs for the

same reasons the detainee cases are not. None required the

courts to scrutinize a decision constitutionally committed

wholly to the political branches. Indeed, the Supreme Court

has suggested that judicial review of enemy-property

designations made to effect statutorily authorized asset

seizures is constitutionally mandated. See Societe

Internationale pour Participations Industrielles et

Commerciales, S. A. v. Rogers, 357 U.S. 197, 210–11 (1958)

(“[The] summary power to seize property which is believed to

be enemy-owned is rescued from constitutional invalidity

under the Due Process and Just Compensation Clauses of the

Fifth Amendment only by those provisions of the Act which

afford a non-enemy claimant a later judicial hearing as to the

propriety of the seizure.”); cf. Bancoult, 445 F.3d at 435

(“[C]laims based on the most fundamental liberty and

property rights of this country’s citizenry, such as the Takings

and Due Process Clauses of the Fifth Amendment, are

justiciable, even if they implicate foreign policy decisions.”

(internal quotation marks and citations omitted)). No

comparable constitutional commitment to the judiciary exists

in this case. See Paul v. Davis, 424 U.S. 693, 701 (1976)

(holding that defamation by the government, when it harms

“reputation alone,” does not constitute a deprivation of liberty

or property under the Due Process Clause). The plaintiffs do

not ask whether the government’s conduct was prohibited by

the Constitution. Instead, they seek declarations that the

25

President should not have launched a military strike that the

plaintiffs deem unwise and ill founded, and an injunction

requiring the government to retract its justifications for the

attack. The Constitution denies the courts the ability to grant

such extraordinary relief.

III.

Our colleagues agree that the district court lacked

jurisdiction but would affirm on a different ground. Their

proposed alternative relies on the rule that federal courts lack

jurisdiction to hear legally “insubstantial” claims. The

Supreme Court and this court have applied this rule narrowly,

setting a high bar for dismissal that plaintiffs’ claims do not

meet.

“Dismissal for lack of subject-matter jurisdiction because

of the inadequacy of [a] federal claim is proper only when the

claim is so insubstantial, implausible, foreclosed by prior

decisions of [the Supreme] Court, or otherwise completely

devoid of merit as not to involve a federal controversy.” Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)

(internal quotation marks omitted). But see, e.g., Rosado v.

Wyman, 397 U.S. 397, 404 (1970) (characterizing this

doctrine as “more ancient than analytically sound”). This

ground for jurisdictional dismissal “is, as a general matter,

reserved for complaints resting on truly fanciful factual

allegations,” Best v. Kelly, 39 F.3d 328, 331 n.5 (D.C. Cir.

1994), but also has some limited application to claims resting

on insubstantial legal theories.

[L]egal claims may be so insubstantial as to deprive

federal courts of jurisdiction if “prior decisions

inescapably render the claims frivolous.” Hagans [v.

Lavine, 415 U.S. 528, 538 (1974)]. That said,

“previous decisions that merely render claims of

26

doubtful or questionable merit do not render them

insubstantial.” Id. Thus, to qualify as insubstantial, a

claim’s “unsoundness [must] so clearly result[] from

the previous decisions of [the Supreme Court] as to

foreclose the subject and leave no room for the

inference that the question sought to be raised can be

the subject of controversy.” Ex parte Poresky, 290

U.S. 30, 32 (1933) (internal quotation marks omitted).

Ord v. District of Columbia, 587 F.3d 1136, 1144 (D.C. Cir.

2009) (some alterations in original).

Plaintiffs’ claims are not so unsound as to warrant

dismissal on this jurisdictional ground. There is “room for the

inference that the question[s] sought to be raised can be the

subject of controversy.” Poresky, 290 U.S. at 32; see, e.g., El-

Shifa, 559 F.3d at 591–92 (Ginsburg, J., dissenting) (“Some

of our cases do imply a plaintiff may obtain a retraction from

the United States for defamation by one of its officers. . . .

Federal rather than D.C. common law likely governs Idris’s

claim . . . .”). Perhaps the district court would have dismissed

plaintiffs’ claims for failure to state a claim under Rule

12(b)(6) had the case proceeded to the merits. But whether a

claim is so insubstantial as to deprive the federal courts of

jurisdiction is a “separate question from whether a complaint

is subject to dismissal under Federal Rule of Civil Procedure

12(b)(6) for failing to state a claim on which relief may be

granted.” Ord, 587 F.3d at 1144. The cases relied upon by the

concurrence might “render [plaintiffs’] claims of doubtful or

questionable merit,” but they do not “foreclose the subject”

and therefore “do not render them insubstantial.” Id. at 1144

(quoting Hagans, 415 U.S. at 538, and Poresky, 290 U.S. at

32). “Jurisdiction . . . is not defeated . . . by the possibility that

the averments might fail to state a cause of action on which

27

petitioners could actually recover.” Bell v. Hood, 327 U.S.

678, 682 (1946).

IV.

Our concurring colleagues charge the court with “sub

silentio expand[ing] executive power.” Concurring Op. of

Judge Ginsburg at 3 (quoting Concurring Op. of Judge

Kavanaugh at 11). To the contrary, it is they who would work

a sub silentio expansion. By asserting the authority to decide

questions the Constitution reserves to Congress and the

Executive, some would expand judicial power at the expense

of the democratically elected branches. And by stretching

beyond all precedent the limited category of claims so

frivolous as not to involve a federal question, all would permit

courts to decide the merits of disputes under the guise of a

jurisdictional holding while sidestepping obstacles that are

truly jurisdictional.

Straightforward application of our precedent makes clear

that the plaintiffs face such an obstacle here. Under the

political question doctrine, the foreign target of a military

strike cannot challenge in court the wisdom of retaliatory

military action taken by the United States. Despite their

efforts to characterize the case differently, that is just what the

plaintiffs have asked us to do. The district court’s dismissal of

their claims is

Affirmed.

GINSBURG, Circuit Judge, with whom Circuit Judge

ROGERS joins, concurring in the judgment: I join Part I of

Judge Kavanaugh‟s opinion concurring in the judgment

because the plaintiffs have not alleged a non-frivolous cause

of action; I write separately to make an additional point about

the opinion for the Court. That opinion expands the political

question doctrine well beyond the bounds delineated in Baker

v. Carr, 369 U.S. 186 (1962), and the Court‟s need to

consider whether application of the political question doctrine

in a statutory case threatens the separation of powers arises

only because of that unwarranted expansion.

The Court today expands the political question doctrine

by reading into several of our recent cases something of a new

political decision doctrine. On that approach, we are first to

identify some “conduct” or “decision” (the opinion alternates)

constitutionally committed to the Executive and then to ask

whether the plaintiff‟s “claim[] ... call[s] into question,”

“require[s] the court to reassess,” or is “inextricably

intertwined with” that Executive conduct or decision. Op. at

12, 13, 18. If so, then the claim is non-justiciable, regardless

whether the court would actually have to decide a political

question in order to resolve it.

The Court‟s approach departs sharply from that

prescribed in Baker v. Carr, which calls for a “discriminating

inquiry into the precise facts and posture of the particular

case” in order to detect “a political question‟s presence,” 369

U.S. at 217; unless there is such a question and it is

“inextricable from the case at bar,” id., then we are to decide

it, even if “our decision may have significant political

overtones.” Japan Whaling Ass’n v. Am. Cetacean Soc., 478

U.S. 221, 230 (1986); see also Campbell v. Clinton, 203 F.3d

19, 40 (D.C. Cir. 2000) (Tatel, J., concurring) (“Resolving the

issue in this case would require us to decide not whether the

air campaign was wise ... but whether the President possessed

legal authority to conduct the military operation”). The

2

innovation adopted by the Court contravenes the Supreme

Court‟s teaching that “[t]he doctrine of which we treat is one

of „political questions,‟ not one of „political cases.‟” Baker,

369 U.S. at 217.

If the Court today followed Baker v. Carr, then there

would be no occasion to consider whether the application of

the political question doctrine in a statutory case threatens the

separation of powers by, as Judge Kavanaugh says,

“systematically favor[ing] the Executive Branch over the

Legislative Branch,” Op. at 10. Under Baker v. Carr a

statutory case generally does not present a non-justiciable

political question because “the interpretation of legislation is a

„recurring and accepted task for the federal courts.‟” Id. at 9

(quoting Japan Whaling, 478 U.S. at 230). For rare

exceptions in which a statute called for a decision

constitutionally committed to the President and hence not

subject to judicial review, see Chicago & Southern Air Lines,

Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948), and

People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182

F.3d 17, 23 (D.C. Cir. 1999) (“Of the three findings mandated

by [the Statute, Secretary of State‟s finding that an

organization‟s terrorist activity threatens national security] ...

is nonjusticiable”).

Under the Court‟s new political decision doctrine,

however, even a straightforward statutory case, presenting a

purely legal question, is non-justiciable if deciding it could

merely reflect adversely upon a decision constitutionally

committed to the President. Compare, e.g., Zivotofsky v.

Sec’y of State, 571 F.3d 1227, 1234-35 (2009) (Edwards, J.,

concurring) (“The Secretary‟s first argument — that

Zivotofsky‟s claim is a nonjusticiable political question — is

specious. ... These questions involve commonplace issues of

statutory and constitutional interpretation, and they are plainly

3

matters for the court to decide.”) with id. at 1232 (Griffith, J.,

for the court) (plaintiff “invites the courts to call into question

the President‟s exercise of the recognition power. This we

cannot do. We therefore hold [his statutory] claim presents a

nonjusticiable political question because it trenches upon the

President‟s constitutionally committed recognition power.”).

As Judge Kavanaugh notes, such a holding “sub silentio

expand[s] executive power [at the expense of the

legislature].” Op. at 11. The result of staying the judicial

hand is to upset rather than to preserve the constitutional

allocation of powers between the executive and the

legislature.

KAVANAUGH, Circuit Judge, with whom Chief Judge

SENTELLE joins, and with whom Circuit Judges GINSBURG

and ROGERS join as to Part I, concurring in the judgment:

In August 1998, President Clinton ordered the U.S.

military to bomb both the El-Shifa factory in Sudan and al

Qaeda training camps in Afghanistan. The goals were to kill

leaders of al Qaeda and to destroy al Qaeda infrastructure.

President Clinton explained to Congress and the American

people that he ordered the bombings in furtherance of the

Nation’s “inherent right of self-defense” in the wake of al

Qaeda attacks on U.S. property and personnel in Kenya and

Tanzania. As authority for the bombings, President Clinton

cited his Commander-in-Chief power under Article II of the

Constitution.

Plaintiffs El-Shifa Pharmaceutical Industries Company

and its owner, Salah Idris, allege that their factory in Sudan

was wrongly destroyed in the bombings and that they were

reputationally harmed by later Executive Branch statements

linking them to Osama bin Laden. As relevant here, they

have brought a federal defamation claim and an Alien Tort

Statute claim against the United States.

The Government correctly contends that plaintiffs have

not alleged a cognizable cause of action; indeed, plaintiffs

have not come close. Plaintiffs’ complaint should be

dismissed on that basis alone, as Part I of this opinion

explains. But the majority opinion instead relies on the

political question doctrine to dismiss the complaint. I

disagree with the majority opinion’s political question

analysis, as Part II of this opinion spells out.

I

Federal courts lack subject matter jurisdiction over claims

that are “so insubstantial, implausible, foreclosed by prior

2

decisions of this Court, or otherwise completely devoid of

merit as not to involve a federal controversy.” Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (internal

quotation marks omitted). Plaintiffs’ two claims in this case

fall into that category.

El-Shifa Pharmaceutical Industries Company operated a

factory in Sudan that was bombed in August 1998 by the

United States military, at the specific direction of President

Clinton. In later press reports, anonymous U.S. Government

officials were quoted as linking El-Shifa and its owner, Idris,

to Osama bin Laden. El-Shifa and Salah Idris then sued the

United States, advancing two claims of relevance here. First,

to obtain relief for the allegedly false statements by

Government officials that had linked plaintiffs to bin Laden,

plaintiffs raised a federal defamation claim against the United

States. The problem for plaintiffs is that there is no federal

cause of action for defamation available against the United

States. Second, plaintiffs claimed that the failure of the

United States to compensate them for the allegedly mistaken

bombing and destruction of their property violated a

customary international law norm recognized under the Alien

Tort Statute, 28 U.S.C. § 1350. But plaintiffs have cited no

customary international law norm that would require

compensation by the United States under the Alien Tort

Statute for mistaken war-time bombings.

A

First, plaintiffs assert a federal defamation claim against

the United States. There is no such cause of action.

Congress has enacted a number of causes of action that

can be brought against the United States or against

Government officials for acts taken in their official capacities.

3

See, e.g., Administrative Procedure Act, 5 U.S.C. § 500 et

seq.; Federal Tort Claims Act, 28 U.S.C. § 1346; Westfall

Act, 28 U.S.C. § 2679; Tucker Act, 28 U.S.C § 1491, 28

U.S.C. § 1346(a)(2). But Congress has not created a

defamation cause of action against the United States.

Moreover, the Supreme Court has never recognized a

federal common-law defamation cause of action against the

United States. Indeed, the Court has not endorsed any federal

common-law causes of action against the Government during

the post-Erie period. And the Court several times has

expressly declined to do so, noting that creation of new causes

of action is a function typically best left to Congress. See,

e.g., U.S. Postal Serv. v. Flamingo Indus., 540 U.S. 736, 744-

45 (2004); Alexander v. Sandoval, 532 U.S. 275, 287 (2001);

O’Melveny & Myers v. FDIC, 512 U.S. 79, 88 (1994); FDIC

v. Meyer, 510 U.S. 471, 483-86 (1994); United States v.

California, 507 U.S. 746, 759-60 (1993); United States v.

Standard Oil Co., 332 U.S. 301, 313-16 (1947).

Plaintiffs cite three cases from this Court to support their

argument that there is a federal common-law cause of action

for defamation available against the United States. See U.S.

Info. Agency v. Krc, 989 F.2d 1211, 1216 (D.C. Cir. 1993);

Cmty. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672

(D.C. Cir. 1987); Expeditions Unlimited Aquatic Enters. v.

Smithsonian Inst., 566 F.2d 289, 294 n.16 (D.C. Cir. 1977)

(en banc). But none of those decisions holds that there is such

a federal common-law cause of action.

In this Court, plaintiffs also attempt to argue that the

Administrative Procedure Act supplies a cause of action for

defamation. But that, too, is wrong; the APA contains no

cause of action for defamation. Moreover, plaintiffs cannot

use the APA – which, as relevant here, prohibits executive

4

action that is “not in accordance with law” – to vindicate a

purported federal common-law right that does not exist. 5

U.S.C. § 706(2)(a); see also Sea-Land Serv., Inc. v. Alaska

R.R., 659 F.2d 243, 245 (D.C. Cir. 1981).

In addition to a federal common-law cause of action,

plaintiffs might also be alleging a purported state common-

law cause of action against the United States, although their

complaint never quite says as much. Even so, any such state-

law cause of action may not be brought against the United

States absent congressional authorization to that effect. Cf.

Tarble’s Case, 80 U.S. 397, 406 (1871); Barr v. Matteo, 360

U.S. 564, 569-71 (1959) (federal officers acting in their

official capacities have immunity from suit, including against

state-law defamation suits). In our constitutional system, the

states do not regulate the Federal Government, either directly

or through state tort law, at least absent congressional

consent. U.S. CONST. art. VI, cl. 2. The FTCA and Westfall

Act do expressly borrow (or permit) state tort causes of action

against the United States in certain carefully defined

circumstances. But those statutes do not apply here, as

plaintiffs concede. And contrary to plaintiffs’ inventive

arguments, the APA does not borrow state law or permit state

law to be used as a basis for seeking injunctive or declaratory

relief against the United States. As counsel for the

Government succinctly and correctly stated at oral argument:

“State tort law doesn’t run against the United States, so it’s

not a federal law that can be pointed to as a substantive law

which is being transgressed for an APA cause of action.” Tr.

of Oral Arg. at 52; see In re Supreme Beef Processors, Inc.,

468 F.3d 248, 255 (5th Cir. 2006).1

1

Plaintiffs have not contended that the relevant agency actions

were arbitrary and capricious under the APA. Even if they had,

they would face a variety of hurdles – including 5 U.S.C.

5

B

Plaintiffs also seek a declaration that the United States

violated customary international law, as cognizable under the

Alien Tort Statute, 28 U.S.C. § 1350, because the United

States failed to compensate plaintiffs for the allegedly

mistaken destruction of their property.

The Alien Tort Statute, or ATS, authorizes suits brought

“by an alien for a tort only, committed in violation of the law

of nations or a treaty of the United States.” 28 U.S.C. § 1350.

The ATS covers “a relatively modest set of actions alleging

violations of the law of nations” – including certain norms

established as of 1789, which the Court identified as

“violation of safe conducts, infringement of the rights of

ambassadors, and piracy.” Sosa v. Alvarez-Machain, 542

U.S. 692, 720, 724 (2004). The ATS may encompass other

established customary international law norms so long as they

do not have “less definite content and acceptance among

civilized nations than the historical paradigms familiar when

§ 1350 was enacted” in 1789. Id. at 732.

Plaintiffs allege that the actions of the United States

violated an established customary international law norm –

namely, “the obligation of a government to compensate

citizens of other nations for the mistaken destruction of their

innocent property.” El-Shifa Br. at 49 n.6. But plaintiffs cite

no authority suggesting that the mistaken destruction of

property during extraterritorial war-related activities – or

§ 701(a)(2), which exempts from APA review agency action that is

committed to agency discretion by law. Furthermore, any such

APA claim would rest on the proposition that the statements of

anonymous officials constitute final agency action. See 5 U.S.C. §

704. There is no support in our precedents for that conclusion.

6

denial of an administrative claim seeking compensation for

the same – violates an established norm of customary

international law. Furthermore, “the determination whether a

norm is sufficiently definite to support a cause of action

should (and, indeed, inevitably must) involve an element of

judgment about the practical consequences of making that

cause available to litigants in the federal courts.” Sosa, 542

U.S. at 732-33. If the plaintiffs were correct, the federal

courts presumably would be flooded with ATS claims – at a

minimum, claims seeking declaratory relief for alleged

violations of customary international law norms – against the

United States for allegedly mistaken property damage in

every war, including the ongoing wars in Iraq and

Afghanistan. Plaintiffs provide no persuasive reason for the

federal judiciary to embark on such a novel and far-reaching

endeavor in the absence of congressional direction.

In short, plaintiffs’ attorneys have worked hard to find

some basis in law for plaintiffs’ complaint. But they have

located no such basis: Plaintiffs’ two claims are “so

insubstantial, implausible, foreclosed by prior decisions of

this Court, or otherwise completely devoid of merit as not to

involve a federal controversy.” Steel Co., 523 U.S. at 89.

The District Court’s judgment dismissing plaintiffs’

complaint should be affirmed for that reason alone. 2

2

If a majority of the Court had been willing to dismiss

plaintiffs’ claims on this basis for lack of subject-matter

jurisdiction, the Court could have avoided the need to confront the

significant constitutional question whether plaintiffs’ claims raise a

nonjusticiable political question. Cf. Nw. Austin Mun. Util. Dist.

No. One v. Holder, 129 S. Ct. 2504, 2513 (2009).

7

II

The straightforward approach outlined in Part I of this

opinion would readily resolve this case. But the majority

opinion instead relies on the notoriously “murky and

unsettled” political question doctrine to dismiss the complaint.

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n.8

(1984) (Bork, J., concurring). Because of the importance of

the political question doctrine to the law of this Circuit, I

believe it important to respond to the majority opinion and to

explain my disagreement with its political question theory.

The key point for purposes of my political question

analysis is this: Plaintiffs do not allege that the Executive

Branch violated the Constitution. Rather, plaintiffs allege that

the Executive Branch violated congressionally enacted

statutes that purportedly constrain the Executive. The

Supreme Court has never applied the political question

doctrine in cases involving statutory claims of this kind. As

Judge Edwards has correctly explained, the proper separation

of powers question in this sort of statutory case is whether the

statute as applied infringes on the President’s exclusive,

preclusive authority under Article II of the Constitution. See

Zivotofsky v. Sec’y of State, 571 F.3d 1227, 1240-45 (D.C.

Cir. 2009) (Edwards, J., concurring). That is a weighty

question – and one that must be confronted directly through

careful analysis of Article II, not resolved sub silentio in favor

of the Executive through use of the political question doctrine.

A

The political question doctrine has occupied a more

limited place in the Supreme Court’s jurisprudence than is

8

sometimes assumed.3 The Court has relied on the doctrine

only twice in the last 50 years. See Walter Nixon v. United

States, 506 U.S. 224 (1993); Gilligan v. Morgan, 413 U.S. 1

(1973). The Court has invoked the doctrine in cases in which

(i) the Constitution textually and exclusively commits

interpretation of the relevant constitutional provision to one or

both of the political branches or (ii) the constitutional

provision at issue supplies no judicially manageable or

discoverable standards for resolving the case. See Walter

Nixon, 506 U.S. at 228.

3

The Supreme Court does not decline to resolve a case on

political question grounds simply because the dispute involves or

would affect national security or foreign relations. Indeed, from the

time of John Marshall to the present, the Court has decided many

sensitive and controversial cases that had enormous national

security or foreign policy ramifications. See, e.g., Boumediene v.

Bush, 128 S. Ct. 2229 (2008); Medellín v. Texas, 552 U.S. 491

(2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Sosa v. Alvarez-

Machain, 542 U.S. 692 (2004); American Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003); Dames & Moore v. Regan, 453 U.S. 654

(1981); Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579 (1952); Johnson v. Eisentrager,

339 U.S. 763 (1950); Korematsu v. United States, 323 U.S. 214

(1944); United States v. Curtiss-Wright Export Corp., 299 U.S. 304

(1936); Ex parte Milligan, 71 U.S. 2 (1866); Prize Cases, 67 U.S.

635 (1863); Little v. Barreme, 6 U.S. 170 (1804); see also David J.

Barron & Martin S. Lederman, The Commander in Chief at the

Lowest Ebb – Framing the Problem, Doctrine, and Original

Understanding, 121 HARV. L. REV. 689, 723 (2008) (“the Supreme

Court’s jurisprudence, stretching from early in our history through

Youngstown to numerous contemporary war powers cases, is rife

with instances of the Court’s resolving questions of the Executive’s

war powers, just as it has adjudicated other separation of powers

disputes between the political departments”).

9

Importantly, the Supreme Court has invoked the political

question doctrine only in cases alleging violations of the

Constitution. This is a statutory case. The Supreme Court

has never applied the political question doctrine in a case

involving alleged statutory violations. Never.

As the Supreme Court has explained, the interpretation of

legislation is a “recurring and accepted task for the federal

courts.” Japan Whaling Ass’n v. American Cetacean Soc’y,

478 U.S. 221, 230 (1986). Under Article III of the

Constitution, “one of the Judiciary’s characteristic roles is to

interpret statutes, and we cannot shirk this responsibility

merely because our decision may have significant political

overtones.” Id.; see also 13C CHARLES ALAN WRIGHT,

ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL

PRACTICE AND PROCEDURE § 3534.2, at 752 (3d ed. 2008)

(“[I]nterpretation of statutes affecting foreign affairs is not

likely to be barred by [the] political-question doctrine.”);

ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 1.3, at 15 (5th

ed. 2007) (“Under current law, the political question doctrine

consigns certain allegations of constitutional violations to the

other branches of government for adjudication and decision,

even if all other jurisdictional and justiciability requirements

are met.”) (emphasis added).4

There is good reason the political question doctrine does

not apply in cases alleging statutory violations. If a court

refused to give effect to a statute that regulated Executive

conduct, it necessarily would be holding that Congress is

4

If a statute regulating private conduct provides no discernible

standards and therefore insufficient notice of what actions are

prohibited, the statute might be void for vagueness under the Due

Process Clause. See Bouie v. City of Columbia, 378 U.S. 347, 351

(1964). But that is not a political question doctrine determination.

10

unable to constrain Executive conduct in the challenged

sphere of action. As a result, the court would be ruling (at

least implicitly) that the statute intrudes impermissibly on the

Executive’s prerogatives under Article II of the Constitution.

In other words, the court would be establishing that the

asserted Executive power is exclusive and preclusive,

meaning that Congress cannot regulate or limit that power by

creating a cause of action or otherwise.

Applying the political question doctrine in statutory cases

thus would not reflect benign deference to the political

branches. Rather, that approach would systematically favor

the Executive Branch over the Legislative Branch – without

the courts’ acknowledging as much or grappling with the

critical separation of powers and Article II issues. The fact

that use of the political question doctrine in statutory cases

loads the dice against the Legislative Branch presumably

explains why there is no Supreme Court precedent applying

the doctrine in statutory cases – and why the Executive

Branch (sometimes wary, for a variety of reasons, of

advancing a straight Article II argument) may want the courts

to invoke the doctrine in statutory cases of this sort. Cf.

David J. Barron & Martin S. Lederman, The Commander in

Chief at the Lowest Ebb – Framing the Problem, Doctrine,

and Original Understanding, 121 HARV. L. REV. 689, 723-24

(2008) (“One need only consider the cases that could arise in

the contemporary setting to see that leaving the question of

the President’s constitutional authority to defy a statutory

restriction on his war powers to the give-and-take of the

political branches would be quite radical in its implications. . .

. [T]he insistence that allocation of war powers should be ‘left

to politics’ would hardly be a neutral solution to the problem:

it would inevitably tilt the constitutional structure decidedly in

favor of executive supremacy.”).

11

In short, the question whether a statute intrudes on the

Executive’s exclusive, preclusive Article II authority must be

confronted directly through careful analysis of Article II – not

answered by backdoor use of the political question doctrine,

which may sub silentio expand executive power in an indirect,

haphazard, and unprincipled manner. It is particularly

important to confront the question directly because of the

significance of such questions to our constitutional separation

of powers. As Justice Jackson rightly explained, any claim of

exclusive, preclusive Executive authority – particularly in the

national security arena – “must be scrutinized with caution,

for what is at stake is the equilibrium established by our

constitutional system.” Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring).

B

The approach suggested in this opinion is consistent with

the results, if not all the reasoning, of this Court’s recent cases

declining to entertain certain tort suits in the national security

arena. In those cases, as in this case, the plaintiffs asserted no

cognizable cause of action. See Harbury v. Hayden, 522 F.3d

413 (D.C. Cir. 2008); Gonzalez-Vera v. Kissinger, 449 F.3d

1260 (D.C. Cir. 2006); Bancoult v. McNamara, 445 F.3d 427

(D.C. Cir. 2006); Schneider v. Kissinger, 412 F.3d 190 (D.C.

Cir. 2005). The Federal Tort Claims Act does not apply to

suits for actions that occur in foreign countries or that

encompass discretionary functions, among other exceptions.

The Alien Tort Statute has never been held to cover suits

against the United States or United States Government

officials; the statute furnishes no waiver of sovereign

immunity. And as we explained in Harbury, the Torture

Victim Protection Act does not extend to suits against

American officials except in the unusual case where such an

official acts “under color of foreign law.”

12

The absence of a cause of action covering the national

security activities at issue in Harbury, Gonzalez-Vera,

Bancoult, Schneider, or this case is hardly surprising. The

political branches, mindful of the need for Executive

discretion and flexibility in national security and foreign

affairs, are unlikely to unduly hamper the Executive’s ability

to protect the Nation’s security and diplomatic objectives.

See United States v. Curtiss-Wright Export Corp., 299 U.S.

304, 320-22 (1936). Relatedly, it is well-established that

courts must be cautious about interpreting an ambiguous

statute to constrain or interfere with the Executive Branch’s

conduct of national security or foreign policy. See Dep’t of

the Navy v. Egan, 484 U.S. 518, 529-30 (1988); United States

v. Johnson, 481 U.S. 681, 690-91 (1987); Haig v. Agee, 453

U.S. 280, 292 (1981); see also Sosa v. Alvarez-Machain, 542

U.S. 692, 733 n.21 (2004).5 And apart from all that, if a

statute were passed that clearly limited the kind of Executive

national security or foreign policy activities at issue in these

cases, such a statute as applied might well violate Article II.

Cf. Zivotofsky, 571 F.3d at 1240-45 (Edwards, J., concurring).

The main point here is that those issues should be

confronted directly and carefully, not resolved sub silentio in

favor of the Executive through invocation of the political

question doctrine in a situation where the Supreme Court has

never seen fit to employ it.

5

In cases reviewing the Executive’s designation of foreign

terrorist organizations, we held that the statute left to the Executive

Branch the determination whether a group threatened the security

of the United States. See People’s Mojahedin v. Dep’t of State, 182

F.3d 17, 23-25 (D.C. Cir. 1999). This seems a straightforward

application of Dep’t of the Navy v. Egan’s principle of statutory

interpretation, not any broad holding about the political question

doctrine.

13

C

To say that the courts must directly confront the critical

separation of powers and Article II issues posed by this kind

of statutory case is not to say that the Executive lacks any

exclusive, preclusive Article II authority. The Executive

plainly possesses a significant degree of exclusive, preclusive

Article II power in both the domestic and national security

arenas. See, e.g., Ex parte Garland, 71 U.S. 333, 380 (1867)

(pardon power “of the President is not subject to legislative

control.”).

In the national security realm, although the topic is of

course hotly debated, most acknowledge at least some areas

of exclusive, preclusive Presidential power – where Congress

cannot regulate and the Executive “wins” even in Justice

Jackson’s Youngstown Category Three. For example, courts

have generally accepted that the President possesses

exclusive, preclusive power under the Commander-in-Chief

Clause of Article II to command troop movements during a

congressionally authorized war. See Hamdan v. Rumsfeld,

548 U.S. 557, 591-92 (2006) (“neither can the President, in

war more than in peace, intrude upon the proper authority of

Congress, nor Congress upon the proper authority of the

President. . . . Congress cannot direct the conduct of

campaigns”) (quoting Ex parte Milligan, 71 U.S. 2, 139

(1866) (separate opinion of Chase, C.J.)).

This case involves President Clinton’s unilateral decision

to bomb suspected al Qaeda targets. In the wake of the

August 1998 al Qaeda attacks on U.S. personnel and property

in Tanzania and Kenya, President Clinton ordered these

attacks “in exercise” of the United States’ “inherent right of

self-defense.” Letter to Congressional Leaders Reporting on

Military Action Against Terrorist Sites in Afghanistan and

14

Sudan, 2 PUB. PAPERS 1464 (Aug. 21, 1998). As authority for

the bombings, President Clinton cited his Commander-in-

Chief power under Article II.

A statute regulating or creating a cause of action to

challenge the President’s short-term bombing of foreign

targets in the Nation’s self-defense (or contesting the

Executive Branch’s subsequent statements about it as

defamatory) might well unconstitutionally encroach on the

President’s exclusive, preclusive Article II authority as

Commander in Chief. Cf. Prize Cases, 67 U.S. 635, 668

(1863) (“If a war be made by invasion of a foreign nation, the

President is not only authorized but bound to resist force by

force. He does not initiate the war, but is bound to accept the

challenge without waiting for any special legislative

authority.”); 4A Op. Off. Legal Counsel 185 (1980).

But we need not definitively answer the sensitive and

weighty Article II question in this case. As explained in Part I

of this opinion, Congress has not created any cognizable

cause of action that would apply to President Clinton’s

decision to bomb El-Shifa or later Executive Branch

statements about the bombing. Indeed, the only remotely

relevant statute in this case is the War Powers Resolution,

which seems to support the President’s authority to conduct

unilateral military operations for at least 62 days without

specific congressional approval. See 50 U.S.C. § 1544(b).

Given that no cause of action exists here, the political

question and Article II issues in this case have an abstract and

hypothetical air to them. In these circumstances, we would be

wise to heed Justice Jackson’s cautionary words. We should

decline the opportunity to expound on the scope of the

President’s exclusive, preclusive Commander-in-Chief

authority under Article II. I respectfully disagree with the

15

majority opinion’s doing so – and particularly its doing so

indirectly through reliance on the political question doctrine.

***

I would dismiss plaintiffs’ complaint because plaintiffs’

two claims are “so insubstantial, implausible, foreclosed by

prior decisions of this Court, or otherwise completely devoid

of merit as not to involve a federal controversy.” Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 89 (1998).