Bancoult, Olivier v. McNamara, Robert S.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 2006 Decided April 21, 2006

No. 05-5049

OLIVIER BANCOULT, ET AL.,

APPELLANTS

v.

ROBERT S. MCNAMARA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv02629)

Darrell Chichester, student counsel, argued the cause for

appellants. With him on the brief was Michael E. Tigar. Aaron

Lloyd, Ali A. Beydoun, Christine Parsadaian, Courtney J.

Nogar, Debra L. Spinelli-Hays, Emily Creighton, James B.

Cowden, Jennifer Dodenhoff, Karen Corrie, Laura Rotolo,

Melissa Mandor, and Timothy L. Foden, student counsel,

entered appearances.

Mark R. Freeman, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Daniel Meron, Acting Assistant Attorney General, Kenneth L.

Wainstein, U.S. Attorney, and Mark B. Stern, Attorney. Dana

J. Martin, Attorney, entered an appearance.

2

Before: TATEL, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: In this case, we confront serious

allegations involving events occurring forty years ago on the far

side of the world. Appellants claim the United States govern-

ment forcibly removed them from their homes on islands in the

Indian Ocean in order to construct a military base. The district

court dismissed all of Appellants’ claims against the United

States and the individual defendants. We affirm the district

court’s decision, finding that Appellants’ claims present

nonjusticiable political questions.

I

In his historic speech at Westminster College on March 5,

1946—the speech in which he first warned that an “iron curtain”

had descended over Europe—Sir Winston Churchill described

the “special relationship between the British Commonwealth

and Empire and the United States.” Blood, Toil, Tears and

Sweat: The Speeches of Winston Churchill 301 (David

Cannadine ed., 1989). Facing a looming Communist threat,

Churchill argued that a key component of this special relation-

ship needed to be military cooperation between the two nations,

cooperation that included “joint use of . . . Naval and Air Force

bases.” Id. The dispute we address today arose from one of

many instances in which Churchill’s call to collaboration was

heeded: the construction of the United States Navy Support

Facility Diego Garcia in the British Indian Ocean Territory

(BIOT).

The Chagos Archipelago, including the island of Diego

Garcia, is located in BIOT; the British have controlled these

islands since 1814. Appellants Olivier Bancoult, Jeanette

3

Therese Alexis, and Marie Isabelle France-Charlot claim to be

indigenous people of Chagos and the direct descendants of

indigenous Chagossians. Appellants Chagos Refugee Group and

Chagos Social Committee are non-profit associations that work

to further the welfare of the Chagossians. Appellants allege that,

in 1964, the British and American governments began secretly

negotiating the establishment of a U.S. military base in the

Indian Ocean; following the “Anglo-American survey,” the

governments decided upon Diego Garcia as the location for this

base. According to Appellants, the two countries decided to

depopulate the entire archipelago, obscuring the true nature of

their decision by portraying the islands’ inhabitants as seasonal

contract workers from Mauritius and Seychelles rather than

permanent citizens of BIOT.

As described by Appellants, the depopulation of the islands

occurred in three stages. First, beginning in 1965, Chagossians

who traveled outside the archipelago were not allowed to return.

Next, the United States allegedly placed an embargo on the

islands to prevent the delivery of food supplies in order to starve

the inhabitants out of the islands. According to Alexis, residents

were threatened with death if they did not leave, and all the cats

and dogs on Diego Garcia were slaughtered. In the third stage,

Appellants claim, the remaining inhabitants of Diego Garcia

were forced onto ships and sent to other islands in the archipel-

ago; the entire population of the archipelago was removed two

years later. Alexis claims the Chagossians were not fed during

the six-day sea voyage in harsh conditions; she states that her

mother was pregnant at the time of the journey but miscarried

the day after arriving in Seychelles.

Appellants contend the Chagossians were stranded in

Mauritius and Seychelles without housing, employment, or other

assistance, and have been denied the right to return to Chagos

ever since. Instead, Appellants state, they have been forced to

4

live in abject poverty in a foreign land, separated from their

family graves and native community. Appellants claim that they

have become ill by being exposed to diseases unknown in

Chagos and by living in impoverished and squalid conditions.

Bancoult states that his brother committed suicide due to the

frustration of not being able to provide for his family in Mauri-

tius. Appellants claim their real and personal property on Diego

Garcia was destroyed during the construction of the military

base. Finally, Appellants claim that the United States has

discriminated against them in its hiring practices at the Diego

Garcia base, hiring laborers from Mauritius, Seychelles, Sri

Lanka, and the Philippines but refusing to hire any Chagossians

(other than a few who concealed their ethnic heritage).

II

Appellants filed suit against the United States on December

20, 2001, on behalf of themselves and all similarly situated

Chagossians, seeking compensatory and punitive damages as

well as declaratory and injunctive relief.1 Several current and

former senior officials in the Departments of Defense and State

were also named as defendants under the Alien Tort Statute, 28

U.S.C. § 1350; the Chagossians claimed that these officials

knew or should have known of the decisions regarding depopu-

1

See also R. v. Sec’y of State for Foreign & Commonwealth

Affairs (Ex parte Bancoult), [2001] Q.B. 1067 (2000) (striking down

British immigration ordinance preventing the Chagossians from

returning to BIOT). In 2004, the Queen issued two Orders in Council

overruling the High Court’s decision and “restor[ing] full immigration

control over all the islands” of BIOT. See Written Ministerial

Statement of Parliamentary Under-Secretary of State for Foreign and

Commonwealth Affairs, 422 Parl. Deb. (Hansard), H.C. (2004) 32-

34WS, available at http://www.publications.parliament.uk/pa/cm200

304/cmhansrd/vo040615/wmstext/40615m03.htm.

5

lation and base construction and had direct authority over those

who carried out the actions that harmed the islanders.2 The

Chagossians’ claims included forced relocation; torture; racial

discrimination; cruel, inhuman, or degrading treatment; geno-

cide; intentional infliction of emotional distress; negligence;

trespass; and destruction of real and personal property.

The United States and the individual defendants filed

motions to dismiss, which the district court granted on Decem-

ber 21, 2004. Bancoult v. McNamara, 370 F. Supp. 2d 1 (2004).

The court began by addressing the claims against the individual

defendants, granting those defendants immunity under the

Westfall Act, 28 U.S.C. § 2679. Bancoult, 370 F. Supp. 2d at 6-

10. Under the Westfall Act, if the Attorney General certifies that

an employee of the federal government was “acting within the

scope of his office or employment” at the time of an incident,

any claims arising out of that incident are converted into claims

against the United States under the Federal Tort Claims Act

(FTCA). Id. at 6 (quoting 28 U.S.C. § 2679(d)(1)). The Attorney

General so certified, and the district court found that the

Chagossians did not rebut the certification or show that an

exception to Westfall immunity should apply. Id. at 10. Hence,

the claims against the individual defendants were converted into

FTCA claims against the United States. Id. The district court

then dismissed these claims, finding that the Chagossians had

failed to exhaust their administrative remedies, as required by 28

U.S.C. § 2675(a), and that the claims would be barred because

the injuries were suffered on foreign soil, an exception estab-

lished by 28 U.S.C. § 2680(k). Id. at 10-11 & n.8.

2

Three other defendants—Halliburton Corporation, Brown &

Root, Inc., and De Chazal Du Mee—were dismissed from the case and

are not involved in this appeal.

6

Next, the district court turned to the political question

doctrine, dismissing the remaining claims against the United

States for lack of subject matter jurisdiction. Id. at 12-17.

Applying the factors enumerated in Baker v. Carr, 369 U.S. 186,

217 (1962), the court found that (1) the “conduct of military

operations and foreign policy complained of in this case” was

the exclusive province of the political branches, Bancoult, 370

F. Supp. 2d at 15; (2) the court lacked adequate standards by

which to judge the “foreign policy and national security con-

cerns” involved in the case, id.; (3) the court could not appropri-

ately “determine the national defense needs of the U.S. military

in the Indian Ocean,” id. at 16; (4) entertaining the Chagossians’

claims would require the court to condemn the actions of

Congress and the executive, showing a lack of respect for the

political branches, id.; (5) unquestioning adherence to the

political branches’ decision to construct the military base was

required, id. at 17; and (6) disturbing the government’s “single

voice” on this issue would subject all three branches to potential

embarrassment, id.3

III

We begin our discussion by clarifying the sequence in

which we must address the issues raised. The “first and funda-

mental question” that we are “bound to ask and answer” is

whether the court has jurisdiction to decide the case. Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting

Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453

(1900)). “The requirement that jurisdiction be established as a

threshold matter ‘springs from the nature and limits of the

judicial power of the United States’ and is ‘inflexible and

3

The court also denied the Chagossians’ request for a preliminary

injunction, finding the request moot in light of the dismissal of all

claims against the United States and the individual defendants. Id.

7

without exception.’” Id. at 94-95 (brackets omitted) (quoting

Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382

(1884)). Therefore, a court must “address questions pertaining

to its or a lower court’s jurisdiction before proceeding to the

merits.” Tenet v. Doe, 125 S. Ct. 1230, 1235 n.4 (2005).

As we recently stated, “the courts lack jurisdiction over

political decisions that are by their nature ‘committed to the

political branches to the exclusion of the judiciary.’” Schneider

v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (quoting

Antolok v. United States, 873 F.2d 369, 379 (D.C. Cir. 1989)

(opinion of Sentelle, J.)). The political question doctrine is one

aspect of “the concept of justiciability, which expresses the

jurisdictional limitations imposed on the federal courts by the

‘case or controversy’ requirement” of Article III of the Constitu-

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

208, 215 (1974); see also Hwang Geum Joo v. Japan, 413 F.3d

45, 47-48 (D.C. Cir. 2005). As we find this issue to be

dispositive, we do not reach any other jurisdictional issues, such

as sovereign immunity, nor the merits of Appellants’ claims.

IV

“The nonjusticiability of a political question is primarily a

function of the separation of powers.” Baker, 369 U.S. at 210.

The doctrine “excludes from judicial review those controversies

which revolve around policy choices and value determinations

constitutionally committed for resolution to the halls of Con-

gress or the confines of the Executive Branch.” Japan Whaling

Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). The

framework laid out by the Supreme Court in Baker has become

the authoritative taxonomy of the characteristics of political

questions:

8

Prominent on the surface of any case held to involve a

political question is found [1] a textually demonstrable

constitutional commitment of the issue to a coordinate

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

and manageable standards for resolving it; or [3] the

impossibility of deciding without an initial policy determi-

nation of a kind clearly for nonjudicial discretion; or [4] the

impossibility of a court’s undertaking independent resolu-

tion without expressing lack of the respect due coordinate

branches of government; or [5] an unusual need for unques-

tioning adherence to a political decision already made; or

[6] the potentiality of embarrassment from multifarious

pronouncements by various departments on one question.

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

only conclude that one factor is present, not all,” Schneider, 412

F.3d at 194, but “[u]nless one of these formulations is inextrica-

ble from the case at bar,” we may not dismiss the claims as

nonjusticiable under the political question doctrine, Baker, 369

U.S. at 217.

The instant case involves topics that serve as the quintessen-

tial sources of political questions: national security and foreign

relations. “Matters intimately related to foreign policy and

national security are rarely proper subjects for judicial interven-

tion.” Haig v. Agee, 453 U.S. 280, 292 (1981). “The conduct of

the foreign relations of our government is committed by the

Constitution to the executive and legislative—‘the politi-

cal’—departments of the government, and the propriety of what

may be done in the exercise of this political power is not subject

to judicial inquiry or decision.” Oetjen v. Cent. Leather Co., 246

U.S. 297, 302 (1918). Foreign policy decisions

are wholly confided by our Constitution to the political

departments of the government, Executive and Legislative.

9

They are delicate, complex, and involve large elements of

prophecy. They are and should be undertaken only by those

directly responsible to the people whose welfare they

advance or imperil. They are decisions of a kind for which

the Judiciary has neither aptitude, facilities nor responsibil-

ity and have long been held to belong in the domain of

political power not subject to judicial intrusion or inquiry.

Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103,

111 (1948). “In framing policies relating to the great issues of

national defense and security, the people are and must be, in a

sense, at the mercy of their elected representatives.” Pauling v.

McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963).4 Thus, “[t]he

fundamental division of authority and power established by the

Constitution precludes judges from overseeing the conduct of

foreign policy or the use and disposition of military power; these

matters are plainly the exclusive province of Congress and the

Executive.” Luftig v. McNamara, 373 F.2d 664, 665-66 (D.C.

Cir. 1967) (per curiam).

We recently discussed the Baker framework at length in

Schneider, which involved claims brought against the United

States and former National Security Advisor Henry Kissinger

for the alleged kidnapping, torture, and death of a Chilean

general. 412 F.3d at 191. The plaintiffs in that case alleged that

the United States had encouraged a military coup in Chile and

that General Schneider was “neutralized” in order to allow the

coup to succeed. Id. at 192. We found that “most” of the Baker

factors were present in the case, indicating that the political

question doctrine rendered the claims nonjusticiable. Id. at 194.

4

See also id. (recognizing that judges cannot “regard

[themselves] as some kind of Guardian Elders ordained to review the

political judgments of elected representatives of the people”).

10

Regarding the first Baker factor, we compiled an extensive

list of constitutional provisions that entrusted foreign affairs and

national security powers to the political branches:

Article I, Section 8 of the Constitution provides an enumer-

ation of powers of the legislature. That article is richly

laden with delegation of foreign policy and national

security powers. Direct allocation of such power is found in

Section 8, Clause 1, “the Congress shall have the Power To

. . . provide for the Common Defence . . .”; Clause 3, “To

regulate commerce with foreign nations”; Clause 10, “To

define and punish Piracies and Felonies committed on the

High Seas and Offenses against the Law of Nations”;

Clause 11, “To declare War, grant Letters of Marque and

Reprisal, and make Rules concerning Captures on Land and

Water”; Clause 12, “To raise and support Armies . . .”;

Clause 13, “To provide and maintain a Navy”; Clause 14,

“to make Rules for the Government and Regulation of the

land and naval Forces”; Clause 15, “To provide for calling

forth the Militia to . . . repel Invasions”; Clause 16, “To

provide for organizing, arming, and disciplining, the

Militia, and for governing such Part of them as may be

employed in the Service of the United States.”

In addition to these direct allocations to the Congress

of these foreign relations and national security powers,

other sections and clauses of Article I bear on the subject

. . . . For example, Section 9 of Article I provides for the

suspension of the writ of habeas corpus “when in cases of

. . . invasion the public safety may require it.” Section 10

allocates to the Congress the authority to provide consent to

individual states, without which they may not “enter into

any Agreement or Compact with . . . a foreign Power, or

engage in War . . . .” This is not to mention the perhaps less

direct but undeniably real connection between national

11

security and other powers of Congress, such as that under

Article I, Section 8, Clause 1, to “lay and collect Taxes,”

and Clause 2, to “borrow money on the credit of the United

States.”

Just as Article I of the Constitution evinces a clear

textual allocation to the legislative branch, Article II

likewise provides allocation of foreign relations and

national security powers to the President, the unitary chief

executive. Article II, Section 2 provides, inter alia, that “the

President shall be Commander in Chief of the Army and

Navy of the United States, and of the Militia of the several

States, when called into the actual Service of the United

States . . . .” That same section further provides that the

President “shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, . . . [and to]

appoint Ambassadors, other public Ministers and Consuls.”

Section 3 of Article II provides that “he shall receive

Ambassadors and other public Ministers . . . and shall

Commission all the Officers of the United States,” includ-

ing obviously the officers of the military.

Id. at 194-95. We noted that the only analogous provision

regarding the judiciary is Article III, Section 1, which extends

our jurisdiction to “Cases affecting Ambassadors, other public

Ministers and Consuls.” Id. at 195. After establishing this

constitutional commitment of foreign policy to the political

branches, we found that the plaintiffs’ allegations fell squarely

within this realm of exclusivity: “[A]t the height of the Cold

War, officials of the executive branch . . . determined that it was

in the best interest of the United States to take such steps as they

deemed necessary” to combat the spread of communism in the

Western Hemisphere. Id.

12

Regarding the second Baker factor, we found “a lack of

judicially discoverable and manageable standards” for resolving

the claims. Id. at 196. We could not “recast[] foreign policy and

national security questions in tort terms,” as that would require

the court “to define the standard for the government’s use of

covert operations in conjunction with political turmoil in another

country.” Id. at 197. The third Baker factor implicated a similar

yet antecedent problem: the court would be unable as an initial

matter “[t]o determine whether drastic measures should be taken

in matters of foreign policy and national security,” id. (emphasis

added), let alone define standards for evaluating those measures.

Finally, we briefly noted the presence of the fourth Baker factor,

finding that we would express a lack of respect to a coordinate

branch of government if we passed judgment on the executive’s

decision to participate in the alleged covert operations. Id. at

198.

V

We recognize that “the contours of the [political question]

doctrine are murky and unsettled.” Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (opinion of

Bork, J.). Although the judiciary properly defers to the political

branches in most such cases, “it is error to suppose that every

case or controversy which touches foreign relations lies beyond

judicial cognizance.” Baker, 369 U.S. at 211. Not every political

case presents a political question. The Baker Court provided

several examples of ways in which judicial action might

“touch[]” foreign relations yet not encroach on the powers of the

political branches, such as by construing treaties or prior

executive statements in order to resolve disputes between private

parties. Id. at 212-13. In Population Institute v. McPherson, 797

F.2d 1062 (D.C. Cir. 1986), and DKT Memorial Fund, Ltd. v.

Agency for International Development, 810 F.2d 1236 (D.C. Cir.

1987), we noted that an indirect effect on foreign affairs would

13

not automatically render a case nonjusticiable. Population

Institute involved a challenge to an administrative interpretation

of an appropriations act that provided funding for international

family planning organizations. 797 F.2d at 1066-67. We found

the executive’s interpretation of the act to be reviewable despite

the possibility of a “vague impact” on foreign affairs; although

foreign policy judgments were implicit in the process of

disbursing the appropriated funds, the interpretation of the act

itself was not a political question. Id. at 1070. Similarly, in DKT

Memorial, we found that a challenge to an agency’s implemen-

tation of a policy statement was justiciable, as the plaintiffs did

“not seek to litigate the political and social wisdom” of the

policy. 810 F.2d at 1238. Thus, in both of those cases, we

undertook “a discriminating analysis of the particular question

posed”; based on the specific facts and claims at issue, we found

the cases to be justiciable, even though they “touche[d]” upon

foreign relations issues. Baker, 369 U.S. at 211. In the same

way, claims based on “the most fundamental liberty and

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

and Due Process Clauses of the Fifth Amendment, are “justicia-

ble, even if they implicate foreign policy decisions.” Comm. of

U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 935

(D.C. Cir. 1988) (quoting Ramirez de Arellano v. Weinberger,

745 F.2d 1500, 1515 (D.C. Cir. 1984) (en banc), vacated on

other grounds, 471 U.S. 1113 (1985), and citing Regan v. Wald,

468 U.S. 222 (1984) and Dames & Moore v. Regan, 453 U.S.

654 (1981)). Accordingly, “a challenge to the constitutionality

of the manner in which an agency sought to implement an

earlier policy pronouncement by the President” could be

justiciable, even if other challenges to the policy or its imple-

mentation might be barred. Schneider, 412 F.3d at 198 (citing

DKT Mem’l, 810 F.2d at 1238). Yet even though attenuated

connections to foreign affairs do not prevent judicial review, and

constitutional mandates may require it, generally “attacks on

14

foreign policymaking are nonjusticiable.” DKT Mem’l, 810 F.2d

at 1238 (citing Population Inst., 797 F.2d at 1068-70).

VI

Appellants concede, and we agree, that the decision to

establish a military base on Diego Garcia is not reviewable.

Appellants’ Br. at 15. That decision was an exercise of the

foreign policy and national security powers entrusted by the

Constitution to the political branches of our government, and we

could not reexamine the choice without making a “policy

determination of a kind clearly for nonjudicial discretion.”

Baker, 369 U.S. at 217. Executive branch officials “determined

that it was in the best interest of the United States,” Schneider,

412 F.3d at 195, to gain a military presence in the Indian Ocean;

they achieved this goal through negotiations with the British, a

process into which the courts may not interject their judgment.

See United States v. Curtiss-Wright Export Corp., 299 U.S. 304,

319-20 (1936). As the district court stated, we have no “stan-

dards by which [we] can measure and balance the foreign policy

considerations at play in this case, such as the containment of

the Soviet Union in the Indian Ocean thirty years ago and . . .

the support of military operations in the Middle East” today.

Bancoult, 370 F. Supp. 2d at 15. If that decision is to be recon-

sidered, “the people are and must be, in a sense, at the mercy of

their elected representatives.” Pauling, 331 F.2d at 799.

However, Appellants contend that “[w]hile the Executive

made a political decision to secure the Chagos Islands, the

Chagossians were subjected to egregious and illegal conduct

during the depopulation process.” Appellants’ Br. at 13.

Appellants claim that the manner in which the policy decision

was implemented is distinct from the policy itself, and is thus

reviewable. Id. (citing Schneider, 412 F.3d at 197; DKT Memo-

rial, 810 F.2d at 1237; Population Institute, 797 F.2d 1062; and

15

Ramirez de Arellano, 745 F.2d at 1515). Similarly, at oral

argument, Appellants maintained that whereas the claims in

Schneider may have been “inextricable from the broader policy”

of encouraging a coup in Chile, the Chagossians’ claims can be

separated from the decision to establish the Diego Garcia base.

Recording of Oral Arg. at 3:40-5:41.

We are unconvinced that the claims presented here merely

“touch[]” on foreign policymaking. The specific tactical

measures allegedly taken to depopulate the Chagos Archipelago

and construct the Diego Garcia base are as inextricably inter-

twined with the underlying strategy of establishing a regional

military presence as the alleged “neutralization” of General

Schneider was with the policy of undermining Allende’s

government. See Schneider, 412 F.3d at 197. We are uncon-

vinced by Appellants’ efforts to distinguish this case from

Schneider; the same logic that compelled our application of the

political question doctrine in that case applies just as forcefully

here.

In each case, the policy and its implementation constitute a

sort of Möbius strip that we cannot sever without impermissibly

impugning past policy and promising future remedies that will

remain beyond our ken. Thus, just as we cannot review the

decision to establish a base in the Indian Ocean (as Appellants

concede), the same reasoning we applied in Schneider dictates

that we cannot review the manner in which that decision was

carried out. The political branches must “determine whether

drastic measures should be taken in matters of foreign policy

and national security,” id., and the President “must determine

what degree of force [a] crisis demands,” The Prize Cases, 67

U.S. (2 Black) 635, 670 (1863).5 We cannot second-guess the

5

See also Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850)

(stating that as Commander in Chief of the nation’s military forces, the

16

degree to which the executive was willing to burden itself by

protecting the Chagossians’ well-being while pursuing the

foreign policy goals of the United States; we may not dictate to

the executive what its priorities should have been. In this

respect, the specific steps taken to establish the base did not

merely touch on foreign policy, but rather constituted foreign

policy decisions themselves. If we were to hold that the execu-

tive owed a duty of care toward the Chagossians, or that the

executive’s actions in depopulating the islands and constructing

the base had to comport with some minimum level of

protections, we would be meddling in foreign affairs beyond our

institutional competence. The courts may not bind the execu-

tive’s hands on matters such as these, whether directly—by

restricting what may be done—or indirectly—by restricting how

the executive may do it. Finally, while the presence of

constitutionally-protected liberties could require us to address

limits on the foreign policy and national security powers

assigned to the political branches, no such constitutional claims

are at issue in this case. Cf. People’s Mojahedin Org. of Iran v.

U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999); Harbury

v. Deutch, 233 F.3d 596, 603-04 (D.C. Cir. 2000), rev’d in part,

Christopher v. Harbury, 536 U.S. 403 (2002).

VII

The same considerations that render nonjusticiable the

claims against the United States also bar the claims against the

individual Appellees. Even were Appellants to demonstrate that

the individual Appellees’ actions were not in conformance with

President may “employ them in the manner he may deem most

effectual”). While the current case does not involve battlefield

decisions, the tactical and logistical details of establishing an overseas

base are as much a matter of executive discretion as are strategic

decisions.

17

presidential orders, the actions alleged were still closely enough

connected to Appellees’ employment to bring them within the

ambit of the political question doctrine. Cf. Schneider, 412 F.3d

at 199 (“Each of the claims for relief alleges acts by the

Defendants which in the amended complaint consist only of the

National Security Advisor and the United States. Their joint

actions together can hardly be called anything other than foreign

policy.”). Although we need not resolve whether traditional

agency principles guide the application of the political question

doctrine, we have little trouble rejecting the claim that Appel-

lees’ acts fell outside the scope of their employment and

therefore receive no shelter from the political question doctrine.

The Restatement (Second) of Agency (1958) states:

Conduct of a servant is within the scope of employment if,

but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and

space limits;

(c) it is actuated, at least in part, by a purpose to serve the

master, and

(d) if force is intentionally used by the servant against

another, the use of force is not unexpectable by the master.

Restatement § 228(1).6 “To be within the scope of the employ-

ment, conduct must be of the same general nature as that

authorized, or incidental to the conduct authorized.” Restate-

ment § 229(1).

6

As we are not reaching the issue of Westfall certification, our

discussion of the “scope of employment” is confined to the context of

the political question doctrine; thus, we rely on general common law

principles rather than the law of a specific state, as we would consult

under Westfall. Cf. Kimbro v. Velten, 30 F.3d 1501, 1506 (D.C. Cir.

1994).

18

Assuming the allegations are correct, the individual

Appellees were authorized to depopulate the Chagos Archipel-

ago and establish a military base on Diego Garcia. All the acts

alleged to have harmed the Chagossians directly furthered, or at

least were incidental to, this authorized goal. The individual

Appellees were all high-level executive officers who inherently

possessed a large measure of discretion in carrying out the tasks

assigned to them by the President. When authorized acts

allegedly included removing an entire community from their

home islands, transferring them elsewhere, and replacing their

community with a military base, the use of harsh measures in the

course of completing the tasks cannot be unexpected. Thus, the

actions alleged to have caused harm to Appellants would not

have been outside the scope of Appellees’ employment.

For this reason, the claims against the individual Appellees

are barred by the same separation of powers concerns that

prevent the court from examining the claims against the United

States. Examining these claims would require the court to judge

the validity and wisdom of the executive’s foreign policy

decisions, as Appellees’ acts were inextricably part of those

policy decisions. This rationale does not entail some new form

of immunity for executive officers who take actions in pursuit

of foreign policy or national security goals; we merely hold that

when the political question doctrine bars suit against the United

States, this constitutional constraint cannot be circumvented

merely by bringing claims against the individuals who commit-

ted the acts in question within the scope of their employment.

VIII

Hence, we conclude that all the claims in this case present

nonjusticiable political questions. The judgment of the district

court is therefore

Affirmed.