El-Shifa Pharmaceutical Industries Co. v. United States

578 Supreme 1, 1868,

n. 1 Court U.S. 88 20 S.Ct. L.Ed.2d (in recently prin frisk, confirmed this assessing validity commonsense 889 “it — Johnson, ciple. v. imperative See Arizona judged the facts be —, objective standard”); 172 L.Ed.2d 694 an S.Ct. (2009) (“Normally, Jackson, the stop 88, ends when the States (D.C.Cir.2005) (“officers’ police further need have no to control the actual motives for scene, passen conducting driver and inform the search not relevant as leave.”). gers long are free their objectively actions were rea- sonable”) (internal quotation marks and Washington Finally, contends that “the omitted); alterations United States v. motives, and the officers’ fact this Holmes, 786, [stop] pretextual give purely was should (“The propriety of a search under the pause considering Court some Fourth Amendment depends objec- on an [they for what explanations officers’ were] tive assessment of the officer’s аctions doing.” fact Tr. of Oral at 23:15- Arg. light facts and circumstances con- Washington Dec. 2008. As correct- him at fronting the time and not on the out, ly points the officers were here not subjective own officer’s intent executing enforcing interested in the traffic laws. search.”) (internal quotation marks and Indeed, stop the officers involved in the omitted). citation apparently not using were even traffic- ticket books to issue tickets. Tr. of Mot. 33:18-34:10,

H’rg at Jan. Rath- 2005. police Washington’s search of car er, police performing “aggres- was reasonable under Fourth Amend- patrol”—looking moving sive traffic “for ment. We affirm the violations, violations, tag pull reasons District Court. over”—because, vehicles as Officer Teix- testified, normally eira “that’s we get how So ordered. a lot of our narcotics and arrests.” gun Id. at 24:3-14. Washington’s suggestion

But

we consider the officers’ actual motives

runs afoul of Whren v. United States.

There, that an Supreme Court held EL-SHIFA PHARMACEUTICAL IN- possesses objective officer who basis to DUSTRIES COMPANY and El Salah stop suspected for a motorist traffic vio Idris, Appel- Din Ahmed Mohammed regardless lation do so of the officer’s lants subjective motive. Whren v. United

States, 806, 810-13, America, UNITED STATES of 1769, 135 Whren ex Appellee. emplifies principle the broader courts No. 07-5174. analyze searches seizures based on what an objectively reasonable officer Appeals, United States Court of done, could what have believed District of Circuit. Columbia subjectively officers thought. light In Argued April 2008. the Supreme precedents, we can Court’s Decided March not accept Washington’s to de invitation cide this case based on the actual officers’ Ohio,

subjective Terry motives. See

Christian Vergonis G. argued the cause for appellants. him With on the briefs Stephen Finn, were J. Brogan, Timothy J. and Katherine E. Stern. III,

C. Frederick Deputy Beckner Assis- Attorney General, tant Department Justice, argued the appellee. cause for With him on the Jeffrey brief S. Bucholtz, Acting Attorney Assistant Gen- eral, Jeffrey A. Taylor, Attorney, Mark Martin, B. Stern and Dana J. Attor- neys. GINSBURG,

Before: HENDERSON, GRIFFITH, Judges. Circuit Opinion for the Court filed Circuit Judge GRIFFITH.

Opinion concurring part and dissenting part filed Circuit Judge GINSBURG.

GRIFFITH, Judge: Oethylmethyl phosphonothioic known Circuit acid, EMPTA, to as referred which is used the President of In gas. manufacture nerve a missile strike States ordered be- plant in that he Sudan pharmaceutical allege Plaintiffs the Clinton Administra- was to the terrorist activi- lieved connected wrong tion was on all counts about its bin Laden. The owners ties of ‍​‌​​​​‌‌‌‌‌‌​‌​‌‌​‌​​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​​​‌‌‍Osama justifications striking Nei- States, challeng- the United sued nor Military ther bin Laden the Sudan allegedly defamatory state- ing several Complex Corporation Industrial had ties to by senior executive branch ments made plant, weapons chemical agents justifying the strike as well as officials present, such as EMPTA were ever them compensate failure to government’s produced plant prod- the medicinal of dis- for the destruction the ucts, including pharmaceuti- over half the plaintiffs’ complaint, trict court dismissed in used cals Sudan. pres- the it ground and we affirm on justi- Once learned that their initial nonjusticiable political question. ents a false, fications for the attack were Clinton a Administration officials offered ex- new I. Idris, planation portrayed the actual we are the Because asked review plant, sup- as a friend owner and dismiss, of a we treat the grant motion porter particular, of terrorists. In and as complaint in the as true. allegations factual reported newspapers, anony- in several County v. Tarrant Narcotics Leatherman mous executive branch officials claimed Unit, Intelligence & Coordination bin Idris was linked to Laden. The Wash- Post, reported ington example, for “one 1998, the August In terrorist saying, learning as “What we’re official” by Osama bin Laden bombed network led suspect leads us to that he’s about [Idris] Kenya Tanza American in and embassies money laundering, in that he’s involved later, Days re nia. United States in a lot of Lad- representing involved bin sponded against with a missile strike & en’s interests Sudan.” Vernon Loeb Khartoum, pharmaceutical plant North Graham, Bradley Sudan Plant Was Sudan, by plaintiffs El-Shifa Phar owned Attack, Probed Months Post, Wash. Before (ElShifa) Company maceutical Industries According plain- at A14. Sept. Salah El Din Ahmed Mohammed tiffs, false. these statements were Idris. recoup Plaintiffs toоk several actions to justified President the attack Clinton They first their from attack. losses claiming plant El-Shifa publicly that the filed a in the States Court lawsuit United operation” was a “terrorists’ base of million as seeking of Federal Claims $50 Laden “associated with bin network.” Takings just compensation under claim, high-ranking with this Consistent The court dis- Clause Constitution. also their executive branch officials stated nonjusticiable under the missed suit plant, belief that bin Laden financed the question doctrine and the United Military was owned the Sudan Appeals Court of Federal States Complex Corporation, Industrial made Pharm. affirmed. See Circuit and, ominously, products, commercial most El-Shifa States, Indus. Co. v. United F.3d production of chemical was involved (Fed.Cir.2004). filed Plaintiffs also weapons. support To this latter accusa- tion, claim with the pointed sample аn administrative Central officials soil (CIA) Intelligence Agency under the Fed- plant included chemical (FTCA),

eral Act seeking Tort Claims II. compensation for the destruction government urges us to affirm the alleged- as well as retraction district court’s dismissal of this case on the ly statements about defamatory El-Shifa ground presents nonjusticiable it and Idris. political question. Because we affirm on claim, plain After the CIA denied the basis, we do not govern- address the tiffs action filed this arguments. ment’s other See Nemariam seeking States under FTCA least Eth., v. Fed. Democratic Republic damages the govern million in $50 alleged negligence trespass ment’s Early history, the nation’s Chief carrying out the attack. At issue on ap Marshall, Justice John in seminal words peal are two further claims. The that shaped the development politi declaratory sought judgmеnts also that the question doctrine, cal explained that linking statements them to “Osama bin authority limited the Constitution grants Laden, organiza international terrorist judiciary disputes resolve does production tions and the of chemical weap to all complaints extend about the ac government’s ons” false and that the tions of the Executive: compensate refusal for them the attack is, province solely, court violated law of nations. The the district rights individuals, decide on the of not to government’s the granted motion to executive, enquire how the or executive plaintiffs’ complaint dismiss lack of officers, perform duties which subject jurisdiction, matter see Fed. Questions, have a discretion. in then- 12(b)(1), R.Civ.P. concluding sovereign are, political, nature or which immunity plaintiffs’ barred all of claims. laws, constitution submitted to the Phаrm. Indus. Co. v. United El-Shifa States, executive, can never be made in this (D.D.C. F.Supp.2d 267, 402 270-73 court. 2005). also The court noted the com

plaint “likely present[ed] nonjusticiable a Madison, (1 Cranch) Marbury v. 5 U.S. question.” Id. at Plaintiffs 137, 170, 2 L.Ed. 60 In Baker v. fíled a to alter motion with Carr, 186, 691, 82 7 respect equitable relief, to their claims for (1962), Supreme explained Court which the district court denied. political question pre El-Shifa doctrine States, Pharm. Co. v. Indus. No. from considering cludes courts cases that (D.D.C. 01-731, 28, 2007 WL 950082 Mar. involve 2007). a textually demonstrable constitutional of commitment the issue a coordinate appeal, challenge only

On political department; a judi- or lack of of equitable dismissal their claims for cially manageable discoverable and stan- relief for defamation and under law of it; dards resolving impossibili- or the They nations. restrict their defamation ty deciding of рolicy without an initial claim to statements about Idris and their clearly determination of a law of kind for non- nations refusal to pay judicial discretion; compensation or the impossibility for the attack. We have jurisdiction of a (2000), undertaking court’s independent U.S.C. and we grant expressing review the district resolution without court’s of lack of the novo, the motion respect to dismiss de see due gov- Carter coordinate branches of Auth., v. ernment; Wash. Metro. Area or an Transit unusual need for un- 143, 145(D.C.Cir.2007). F.3d questioning adherence ato deci- made; claims, over already potentiality plaintiffs’ being looms sion or pro- case that arises out of decision to launch from multifarious embarrassment military on our departments begin analysis various attack. We nouncements proposition upon parties with a both question. one it is not fоr the agree: federal courts to 217, As Bakers first Id. at 82 S.Ct. 691. review the President’s battlefield decisions. indicates, is “primarily the doctrine factor 18-21; Appellee’s Appellants’ Reply ‍​‌​​​​‌‌‌‌‌‌​‌​‌‌​‌​​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​​​‌‌‍Br. separation powers,” id. a function of the 2; 1, Gilligan Br. see Morgan, 210, prohibits at 82 S.Ct. 93 S.Ct. 37 L.Ed.2d 407 “policy choices judiciary reviewing from Bancoult, (1973); 436; at Luftig constitutionally and value determinations McNamara, 373 F.2d 665-66 for resolution to halls committed curiam). (per President of the Executive Congress confines Clinton, in capacity his as Commander-in- Branch,” Ce- Japan Whaling Ass’n Am. Chief, target fired missiles his Soc’y, 478 tacean objective choosing military he pursue (emphasis add- 92 L.Ed.2d was in national had determined inter- ed). Constitution, est. Under the this decision security Disputes involving national immune from review. “quintes foreign policy decisions questions.” Although plaintiffs attempt of political sential sources to dis McNamara, 433 tance their law of and defamation Bancoult v. nations nonjusticiable places question claims Constitution policy why these decisions in the hands of President ordered the missile strike, Congress—not judicia present President and both claims nonetheless Co., “inextricably 246 with ry. Oetjen questions See Cent. Leather intertwined” 309, underlying 62 726 decision attack the U.S. 38 L.Ed. to ElSh- S.Ct. (“The foreign pharmaceutical plant. rela ifa Plaintiffs’ law of conduct of by customary government tions of our is committed nations asserts that compensate legis international law a state must the Constitution the executive and unjustified political’—departments foreign of the national for the de lative—‘the allege Plaintiffs propriety property. and the of what struction government, principle violated this political be done exercise this Unitеd States subject judicial compensate or for the destruc inquiry failing is not them power decision.”); plant. their In Kissinger, passing Schneider v. tion of (D.C.Cir.2005) (“[Tjhere claim, 190, court could not F.3d on this district decision-making ... President’s becoming could no doubt that avoid arbiter of the be national need to de foreign policy fields of battlefield actions would security textually his decision to bomb the polit committed termine whether justified. government.”); Appellants’ Reply was ical branches Comm. of Living (acknowledging re Reagan, Citizens in Nicar. v. Br. this issue “could (not (D.C.Cir.1988) El- F.2d 933-34 the Court to whether quire consider was, fact, ing “foreign policy weapons are the decisions Shifa chemical commitment”). subject facility”). a textual sup This a court do. We have though

Even “it is error to cannot consistently every case held that courts pose controversy beyond judi second-guessing the merits of foreign touches relations lies forum Baker, security cognizance,” foreign policy and deci cial 369 U.S. at national political question textually committed to doctrine sions branches). branches. See v. Kissing Gonzalez-Vera cal precedent This controls our er, 449 F.3d 1263-64 decision here. Plaintiffs’ law of nations (dismissing a suit concerning alleged un claim asks us to review whether the Presi- justified dent lawful U.S. assistance to the was in striking Pinochet re the ElShifa plant. gime challenged Courts have because no business hearing actions “were such claims.1 ‘inextricably intertwined with underly ing’ foreign policy decisions constitutional Plaintiffs’ defamation claim suf ly to the committed branches” fers from a similar flaw. The complaint Bancoult, 436)); (quoting 445 F.3d at see plainly acknowledges executive also Harbury Hayden, 420 branch officials allegеdly offered the de (D.C.Cir.2008) (dismissing a suit against famatory justification statements in alleged officials American to have unlaw President’s decision to attack fully conspired with the army Guatemalan ¶ (stating the action arises out of sought because it a “determination[ ] defamatory “false and statements made alleged whether the conduct should have government United States seeking officials occurred, which impermissibly would re justify [the destruction of the El-Shifa quire examining the wisdom of the under ¶ (conclud pharmaceutical plant]”); id. 64 Bancoult, lying policies”); 445 F.3d at 436 ing that officials offered these state (dismissing a suit challenging the tactical ments as “a justification new for their allegedly measures taken in depopulating attack”). Consider the review the district territories island build a naval base court would need to undertake in ruling on because the mеasures “inextricably prevail claim. To in their defamation intertwined” with an exercise of “the for suit, plaintiffs must show that eign policy security and national powers statements made to justify the attack were entrusted ... political branches”); (Sec false. See generally Restatement Schneider, 412 194-95 (dismissing ond) The district of ToRts alleging that the suit United States as court, then, could not avoid the question kidnapping, torture, sisted and whether Idris was fact associated with general death of a Chilean during the Cold Laden, bin meaning decision for challenged War it a foreign policy directly would contradict the textually decision committed politi- to the Clinton Administration’s ultimate stated disagree 1. dissenting We with colleague’s our er the unjustifiably President ordered the strike, that the law conclusion of nations claim has if the justified for attack was no com- Dissenting forfeited. See Op. been pensation at 587. question presented was due. The fully Plaintiffs brief the challenging claim the in Claim 1 is also an issue in 2. Claim The compensate, CIA's failure to which the wrongly dis- dissent concludes that Claim because addressed, trict also and so it must be 1 is forfeited and because it raises an issue in here. addressed The dissent assumes that the Claim Claim 2 is also forfeited. Claim 1 law replicates of nations claim challenged President, the abandoned by an action the whose unjustified. claim that the attack was sovereign That immunity by is not waived the Ad- reasoning mistakenly concepts conflates the (APA). By ministrative Procedure Act trast, con- of claims and issues. The claim in the chal- challenges 2 Claim the action of a feder- lenge plaintiffs to the attack was that agency al sovereign immunity whose is declaratory judgment еntitled to a APA, that the by waived the 5 U.S.C. 702 wrong President was Crucially, order the strike requested the relief in 1 Claim ran (Claim 1). President, That claim against has been forfeited. the while in Claim it2 runs The law of plaintiffs nations claim is that are Although judicial CIA. the review of declaratory judgment entitled to that may require the Claim 2 pre- review of an issue wrongfully CIA compensate plain- refused to sented in Claim 2 by Claim is not barred (Claim 2). tiffs An issue in 2 is sovereign immunity Claim wheth- properly and is before us.

585 security the and national is launching policy textually missile justification for gov- committed branches of strike. ernment.”); Libby, 535 Wilson v. F.3d cf. this al The dissent notes that (holding 704 that justification defamatory came after legedly political question apply doctrine did not in argues was bombed thus involving by case “disclosures made call into plaintiffs’ claim would not that high-level executive branch officials when President’s true motivations question the speaking press” with the Dis launching the missile strike. See any not “challenge[ foreign policy ] did or senting at 588-89. But both Idris Op. decisions”).3 security national challenged admit that the dissent responds by arguing The dissent that justification offered in of statements were judicial the allegedly defamatory review of at the decision to bomb the See id. more statements about is no of ¶¶ 63-64). We have (citing 589 upon intrusion the Executive’s national se concluding trouble President’s of, curity decisions than is review justifications military for discrete public example, enemy combatant determi least, offered, in always part at action are nation, which political question doc security, national strategic military, with does Dissenting Op. trine not forbid. See objectives in foreign mind. policy —Bush, (citing at 590-91 Boumediene justifications is making of such itself U.S. —, 2229, 171 separated that cannot be policy decision (2008); Gates, Parhat F.3d 834 foreign of conduct relations State, (D.C.Cir.2008); v. Dep’t Chai it ex power the exercise of war (D.C.Cir.2006); (“[PJublic F.3d Von Zedtwitz Br. 15 plains. Appellee’s (D.C.Cir.1928)). Sutherland, F.2d bombing about statements But none of the cases closely cited dissent intertwined with decision strike.”).2 military authority textual commitment of According launch the involved ly, we that a decision on the to the branches. Boumediene conclude necessarily Suspension cross in defamation would found Clause textual political ques judiciary authority marked the barrier commitment to Schneider, enemy determinations tion doctrine. See to review combatant (“[TJhere resulting prolonged could ... be no detention. See 128 doubt Parhat,4, Chai,5 Likewise, decision-making foreign the fields of at 2247. dissent, According holding proposition to the Idris cаn avoid on the conduct by stating foreign po- dismissal here that the President's our relations committed justifications departments, propriety for the missile strike were made litical "and the security furtherance national or for- what done in the exercise of this be eign policy, public merely but to avoid embar- power political subject judicial inqui- is not Dissenting Op. rassment. See at Im- decision,” 589-90. Oetjen, ry at 246 U.S. argument point plicit dissent’s on in the this S.Ct. 309. reject, plaintiffs suggestion, is a which we Parhat, (citing at 839 the Detainee 4. political question can avoid the bar at Act, 1005(e)(2)(A)of Treatment section which pleading stage by motion dismiss artful gives jurisdiction this "exclusive to de- dispute one recasts the terms make it validity any termine the final decision of a properly by reviewed courts. an Combatant Status Review Tribunal that 3. The we dissent assumes that find deсision- enemy properly alien is detained as an com- making exclusively these fields within batant”). authority. President's Commander-in-Chief Chai, (citing 8 Dissenting Op. express We 466 F.3d at 128-29 U.S.C. 590-91. Rather, 1189(c) (2006), opinion. simply entity we des- such rest our allows Zedtwitz,6 and we claim; Von were not called we therefore have no need pass upon to scrutinize textually decisions com- upon a constitutional I issue. believe the mitted to a coordinate branch govern- claim that various officers of the United cases, ment. In raising these the dissent States defamed Idris in the wake of the presents interesting question concern- strike should be remanded to the district ing boundary between decisions prop- court for further proceedings; the com- erly by judiciary made and decisions plaint, which the yet Government has not constitutionally committed to the answered, does nоt necessarily po- raise a branches. Fortunately, we need not de- question litical subject be to ob- cide where that boundary lies. Plaintiffs’ jections that do require not us to reach the defamation claim presents a challenge to constitutional issue. the Executive’s foreign policy and national security decisionmaking, two clearly areas I. The Law of Nations Claim outside our authority. plaintiffs The allege first the United States violated by international law “de-

III. stroy[ing] the justification,” Plant without We conclude presents this case ¶ 112, by failing peace- “to use nonjusticiable political question. ful means concerns,” to resolve its id. judgment of the district court dismissing ¶ 113, in contravention of prohibition plaintiffs’ claims is on the use of force in the Charter of the Affirmed. ¶ Nations, id. 109. The breach of this obligation, international they say, trig- GINSBURG, Circuit Judgе, concurring gers the responsibility of the United States part and dissenting in ¶¶ compensate them. Id. 110-11. The part: plaintiffs accordingly seek “[a] declaration Salah El Din Ahmed Mohammed Idris that the ... attack on the pharma- ElShifa and the El-Shifa Pharmaceutical Indus- ceutical plant nations,” violated the law of Company, tries owns, which Idris allegedly which declaration they say would restore sued the United States following a missile reputations “the of ElShifa and Mr. Idris” strike Company’s plant in Su- by dispelling the “suspicion they dan. plaintiffs advanced several engaged in the production of chemical claims, only two of which remain at issue weapons or other activities associated with appeal. The Court holds both ¶¶ terrorism,” id. 115-16. claims must be dismissed because questions raise constitutionally committed The district court dismissed the claim as to the but barred sovereign immunity, see Cohens branches, the ground alternative raised (6 Wheat.) v. Virginia, 19 Government the district court. (1821)(“a L.Ed. 257 sovereign independent agree suable, I that the State is not claim the except by United States its own consent”); violated the law of nations in see striking also United Lee, States v. failing pay plaintiffs com- 27 L.Ed. pensation dismissed, should be (1882), but I do so 171 without reaching the Govern- preserve did not that ment’s argument alternative for dismissal ignated organization Zedtwitz, as a terrorist under the 6. ‍​‌​​​​‌‌‌‌‌‌​‌​‌‌​‌​​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​​​‌‌‍Von (citing F.2d at 526-27 the Act, Trading 9(a) Enemy

Antiterrorism and with the Penalty Effective Death Act section of provides which judicial for review court). to seek of certain review in this property). seizures of they judgment, that to the judi motion alter bar to on constitutional the upon based Al only the President’s question. challenging of a cial resolution the United only sued but also “thе plaintiffs plant the the though to strike decision § 702 of the Adminis States, they invoked and final decision independent CIA’s Act, provides which trative Procedures based on after-ac- deny compensation against the immunity any suit waiver plant.” El-Shifa evidence about the quired other than “seeking relief United States sovereign immunity in the waiver of a claim that stating and money damages claim the apply to this because APA does there or employee officer agency an “agency.” clearly is an CIA an official to act or failed of acted be dis The claim must nonetheless authority,” legal color of or under capacity faults the complaint because the missed the regardless § whether 5 U.S.C. compensate the failing Government APA, Trudeau v. the brought under suit is the premise the “that only upon plaintiffs (D.C.Cir.2006). FTC, justi Plant ... not was destruction in the the court held waiver The district Compl. the law of nations.” See under fied however, the because inapplicable, APA ¶ Having argument the 115. waived sought to nations claim law of plaintiffs’ the plant the violated against strike the only the President’s decision impugn nations, necessarily plaintiffs the law is not and the President plant the strike fail challenge to the CIA’s their forfeited APA. meaning of the the “agency” within Accordingly, them.* compensate ure (2005); Dal see 272-73 F.Supp.2d the need nor the occasion have neither we Specter, ton v. argument the Government’s address 1719, 128L.Ed.2d 497 claim law of nations plaintiffs’ the not take do appeal, plaintiffs the On political question. raises waiver of ruling that issue with inapplica- immunity in 702 is sovereign for Defamation II. The Claim strike they alleged the ble insofar as appeal us on is before The second claim interna- plant violated the El-Shifa against States officers of certain states opening Their brief law. tional Idris, rise to a “cause giving defamed longer a decla- frankly seek “Plaintiffs ... the United ... States action destruction ration that the law ... and the common both In that re- law.” violated international allega- repeating Idris’s It is worth APA.” therefore, their claim waived spect, is notes, because, we must the Court tions as reach the for the court to there is no need com- allegations “treat the factual question whether constitutional op. at 581. as true.” Ct. plaint doctrine. political question by barred Corp., 533 v. Biovail Meijer, Inc. President Clinton to Idris: According 857, 863 initially officials government various public on the attack justified how- argue appeal, on do plaintiffs plant, which was owned ground ever, as did before district * Thus, ¶ nations,” law of asserts I erro- cryptic the Court In a footnote pay compensation nations claim neously the law of the failure conclude claim that concepts "conflat[ing] depends upon forfeited was law violated international 1, but, issues,” op. Ct. n. claims interna- question the strike violated whether text, complaint asserts the noted in the law, plaintiffs waived have tional by failing to violated international law CIA as a regardless it is characterized whether compensation pay “issue.” "claim” or as an justified under the ... not the attack “was Government, 2680(h)). Sudanese was a “chemi- § U.S.C. In his motion to alter weapons-related cal facility” involved in pointed Idris to the waiver ¶ EMPTA,

the manufacture of 27 in the APA for suits seeking declaratory (“In Sudan, they ... manufacturing relief, § 5 U.S.C. 702. The court denied gas all”), nerve which could kill us had no motion, аgain without reaching the ¶ 35, purpose, commercial id. enjoyed and Government’s alternative argument suspicious protection of the Sudanese presented case political question, a ¶ military, Moreover, id. 39. in- “senior ground time on the there had been no telligence reported officer” day on the action,” “final agency required by § the strike that Osama “bin Laden has of the APA. No. Civ.A. 2007 WL made financial contributions to the Suda- 950082, (Mar. 2007). at *1 Military nese Complex Industrial ... In ruling upon motion, the district which, entity believe, distinct we court again First, erred: the CIA had pharmaceutical Shifa facility is part,” [a] denied request Idris’s retraction, ¶43. for a Thus, id. “[t]he U.S. officials who which certainly seems to agency be final authorized the attack did not know” Idris Samantar, action. See “owned at El-Shifa the time of the attack.” Yousuf ¶ Id. 65. Within a days few event, aftеr the In any strike, however, press began to identi- § “[t]he waiver [in applies APA] ¶ fy him as the plant, owner id. regardless of challenged [the whether con- ” and began U.S. officials to retract pub- agency duct] constitutes ‘final action.’ lic initially statements made justification Trudeau, 456 F.3d at 187. Finally, the “[Rjather for the strike. than admit that a requirement agency of final action in 5 terrible mistake was made U.S. offi- U.S.C. 704 limits causes of action cials ... justifications new invented] for” arising itself, under 190-91; the APA id. at ¶ striking the El-Shifa Id. 64. Of- here Idris invoked both the APA and the falsely ficials claimed and with reckless common law of defamation. disregard that, for the among truth other Today the Court affirms the district (1) things, Idris is financial supporter court’s erroneous dismissal of Idris’s (2) Front; the National Islamic “evidence claim for defamation on the different but obtained since the attack .... suggests] inapposite ground сonstitutional ... purchased Idris plant ... on “ allegedly defamatory statements are ‘in- (3) behalf’; bin Laden’s Idris “repre- extricably intertwined’ with underly- sent[s] lot of bin Laden’s interests ing decision to attack the phar- El-Shifa Sudan”; Idris “has had financial maceutical plant.” op. Ct. at 583. The dealings with of Islamic members Jihad” Court first asserts that Idris’s “defama- money “launders for international Is- ¶ tion claim lamic suffers groups.” [flaw Id. similar]” 66. As with the law claim, that of nations his claim sought declaratory international law. relief argued provided the APA Id. at 584. The upon claim based interna- requisite sovereign waiver of immunity. law, tional Court, according pres- ents a political question in adjudi-

The district court dismissed the defama- it, cating district “would need to tion claim because it erroneously read the determine whether complaint deci- [the President’s] damages, seek and therefоre sion to bomb the subject justified.” be was Id. the Federal Tort Claims Act, which Apparently, however, does not sovereign waive immu- the Court nity for claims of defamation does seeking really indeed, dam- it could not rea- — ages. 402 F.Supp.2d at 272 (citing sonably court, district in ad- —believe justification was post hoc claim, argue CIA’s the would the defamation judicating strategic decision: itself the Presi- question necessarily call into contends the CIA’s dent’s decision: upholding in the Federal Circuit held As nothing to had after and came statements takings claim plaintiffs’ the dismissal for bomb- reason the President’s doctrine, do with the question under the 581; Bill Clin- id. at ing the with no the courts provides Constitution Instead, My Life ton, the President’s de- authority to review that, claim if Idris’s even reasons Court is “at risk of that the nation termination the Presi- question into not call “would or his determination attack” imminent launching the motivations true dent’s enemy property overseas private that strike,” barred it is nevertheless destroyed missile to that must be property because question doctrine by the effectively possibili- neutralize the “most may impli- justification hoc post CIA’s ... The result does not ty of attack.” se- military, national “strategic cate other have chal- change here objectives” foreign policy curity, or deci- only the lenged [President’s] not other In op. at 585. Ct. President. but also plant, the El-Shifa sion to bomb was itself words, justification hoc post statements about public [the CIA’s] foreign policy de- military and strategic closely in- bombing that themselves subject to and therefore cision to launch with the decision tertwined review. military strike. however, (internal Court, merely speculates citation 14-15 Br. at Appellee’s by omitted). objectives Thus, explaining were served strategic far from Idris. about were strate- hoc statements hoc post post CIA’s statements CIA’s decisions, first musters asserts the Government support gic

For Court justifications for dis- Presi- question the “public a court cannot assertion offered, merely always military action are to bomb the dent’s decision crete least, objectives ... context of a strategic with arises in the issue part because the however, If, allegedly in mind.” Id. claim for defamation. fur- themselves defamatory statements asserting the CIA important, More military conduct of the President’s

thered must have or, accurately, more had — affairs, surely would the Government then motivation, re- the Court strategic had—a how. explain allegations. true accept Idris’s fuses officials,” Idris, facing “U.S. According to explana- no such Government offers embarrassing” criticism “profoundly motion to dismiss support tion its justifica- newa simply invented why press, I am at a loss understand therefore ... than admit “rather attack it. tion create one for struggles to the Court ¶¶ 63-64. mistake.” has a terrible imply the Government In order to “artful allegation labels this The Court hoc state- post how CIA’s explained the terms designed “recast[ ] decisions, pleading” the Court strategic ments re- properly it dispute to make one in the Government’s assertion quotes the at 585 n. 2. The op. Ct. courts.” viewed were evidence—that though it brief —as “ however, not, require us does bombing Constitution about statements ‘public a motion governing ignore rules with the closely intertwined [were] ” Government because the simply military Id. dismiss launch the strike.’ decision pres- however, argued has Idris’s defamation context, the Govern- Read Indeed, factual political question. attempt to ents evеn an is not statement ment’s development necessary often is to deter- not allow detainee to introduce “previously presents mine whether a suit nonjusticia- evidence”). a unavailable exculpatory In ad- See, political question. ble e.g., dressing the Zivotofsky suit, issues raised such a a Sec’y State, rel. Z. ex Ari v. is asked neither to any ques- resolve of 614, policy, tion of 583, 619-20 (remanding op. Ct. at nor to to cf. “conduct ... foreign district court it develop relations facts of our related government,” (quoting id. Oetjen whether suit presented political Cent. ques- Co., Leather tion). 297, 302, 246 U.S. The Court label S.Ct. allega- can Idris’s 309, (1918)). 62 L.Ed. 726 tion attempt an “artful” to circumvent the Constitution because the Court as- Although the Court states it not does (a) the sumes CIA must have had a strate- “find decisionmaking [the] fields for [of (b) objective in gic mind any challenge eign poliсy and national security] exclu a strategic decision necessarily raises a sively within the President’s Commander- political question, even if the decision was 3, in-Chief authority,” id. at implicit 585 n. only “in part” by military motivated Court’s reasoning is the assumption objectives, foreign policy op. Ct. at the Constitution bars the Congress from conferring upon a Idris cause ac event, In any the Court errs believing tion to challenge statements, see, the CIA’s claim necessarily Idris’s political raises a (“Plaintiffs’ e.g., id. at 586 defamation question simply implicates because it claim presents challenge to the Execu strategic decision. Apparently the Court foreign tive’s policy and national security believes the grants Constitution the Exec- decisionmaking, clearly two areas outside utive the unreviewable discretion to make Here, our authority”). Idris аsserts the defamatory statements even if have CIA a duty had under both the common nothing to do justification with the actual (the APA) law and an Act Congress not military ‍​‌​​​​‌‌‌‌‌‌​‌​‌‌​‌​​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​​​‌‌‍(or decision because so the to spread him; false information about if assumes) every Court public explanation of correct, he is then he should be able call military “offered, decision is in part at upon the provide courts to him the statuto least, strategic with ... objectives in ry remedy seeks, he see Carr, Baker v. mind.” Id. That proposition is not only 691, U.S. 82 S.Ct. L.Ed.2d novel and frightening, ignores it Supreme (1962) (“it suppose error that every precedent. Court case or controversy which touches foreign To hold that Idris’s claim for defamation beyond judicial relations lies cognizance”). necessarily raises a question, it is It simply is not the case under our Consti enough that resolving might the suit tution thаt Congress has no role in (or not) might implicate military decision regulating forces, the armed see U.S. any more than review of I, 8, 11, 14; § Const. art. President — cls. Hamdan cf. the Executive’s person decision detain a Rumsfeld, 557, enemy (or an might combatant might (2006) (President’s not) reflect upon the military’s decision to use of military commissions comply must that person zone, seize in the war see law) with statutory alone the CIA’s —let —Bush, —, Boumediene 128 use of defamatory statements —such that it 2229, 171 L.Ed.2d 41 may not impose upon legal Executive a (holding Detainee Treatment Act of 2005 obligation for breach of which in violates habeas corpus Suspension Clause, jured party will remedy have a at law. Const, I, art. cl. aspect (if not be right defeased of his separation powers, because DTA any be), does there nor the judiciary ousted inapposite finds those сases solely Court jurisdiction, because—as its “none involved a textual com- it—the President would have the Court authority choosing,” his mitment of target at a missiles “fired 585; branches,” at op. Ct. see also id. op. at 583. Ct. merely but that restates the Court’s several the Court cites support For concluding pres- Idris’s claim reason for directly have chal in which cases political question. ents a The Court no- military decisions of President. lenged why entertaining Idris’s explains where sure, Presi challenge To be Id. upon intrude the President’s claim would “training, regarding the decisions dent’s authority exclusive as Commander-in- military pres of the weaponry and orders” any more Chief under the Constitution Gilligan v. Mor political question. ents claim of hearing wrongful than would 1, 4, 10, 413 U.S. 93 S.Ct. gan, or person proper- detention of a seizure of (1973) (internal quotation L.Ed.2d I ty during anything, a war. If would have оmitted) challeng suit (dismissing marks thought person the decision to detain a to send National Guard ing decision closely is more tied to property to seize college campus); on see civil disorder quell than the decision to the conduct of war McNamara, 445 F.3d Bancoult supporter label Idris a of terrorists. (D.C.Cir.2006) (dismissing challenge to Parhat, Chai, believes Court taken allegedly tactical measures “specific interesting ques raise “an Von Zedtwitz mili and to construct depopulate” island answer, namely, where tion” it need not McNamara, there); tary Luftig v. base boundary prop “the between decisions lies (D.C.Cir.1967) (dis 664, 665-66 373 F.2d judiciary erly by made and decisions missing seeking deployment suit to bar constitutionally committed to the Vietnam). case, however, Idris In this none branches.” Id. at 586. The Court subsequent portrayal challenges the CIA’s that Idris’s defamation theless determines there is an of him as a terrorist —-and boundary, far of that claim lies on the side in which we have clear line of cases equally Al beyond reach of review. heard, qualms, without constitutional claim may insist Idris’s though the Court statutory challenge to his des individual’s au “clearly is outside our for defamation combatant, thereby enemy ignation as id., nothing more than thority,” it “does “becoming arbiter of the Presi supposedly may the for action affect [his] assert actions,” op. Ct. 583. dent’s battlefield States[;] . . . eign relations of Gates, See, F.3d 834 Parhat v. e.g., enough” to determine surely (2008) statutory claim of (addressing actually whether the claim defamation detention, under Detain wrongful brought necessarily political question. raises State, Act); Dep’t Chai v. ee Treatment 1187, 1197 Iraq, 529 F.3d Simon v. (2006) (addressing statutory F.3d 125 terrorist wrongful designation claim of brought under 8 U.S.C. organization, Sutherland, 1189);

§ Von Zedtwitz (1928) a trial on is entitled to (addressing statutory F.2d 525 Whether for defamation is the merits of his claim property, wrongful claim of seizure stage litigation; Enemy with the not clear at this brought Trading Act). even filed its answer. has not Supreme Court has done Government — may Boumediene, —, imply plaintiff do Some of our cases same. 2229, 171 from the United States obtain a retraction 128 S.Ct. officers, e.g., for defamation one of its authority); their see also Boyle, 487 U.S. Enters., Aquatic Expeditions Unlimited 442; 108 S.Ct. 101 L.Ed.2d see Inst., v. Smithsonian Inc. generally Sack, D. Robert on Sack Defama (en banc) (dictum (1977) n. 16 stating (3d ed.1999). 8.2 Alternatively, tion circumstances, “[u]nder certain de Idris’s right may common law have been claratory injunctive relief be ob preempted by a statute or statutes that against defamatory tained statements occupy the field. See Pac. Gas & Elec. Co. officials”); government Cmty. see also Energy State Res. Conservation & Dev. Pierce, Non-Violence v. Creative 814 F.2d Comm’n, 190, 203-04, 663, 671-73 (remanding of 1713, (1983) (“Absent 75 L.Ed.2d 752 ex brought against slander federal officer un plicit preemptive language, Congress’ in law), der D.C. common but there are rea tent supersede state altogether may law sons to doubt Idris has a cause of action be found from a scheme of regula federal one, the APA. For under the conduct he tion ... pervasive so as to make reason challenges might be agency “committed to able the Congress inference that no left 701(a)(2); § discretion law.” 5 U.S.C. room it, for the States to supplement be Saavedra Bruno v. Albright, cf. cause Congress may the Act of touch 1153, 1162 (holding visa de field in which the federal interest is so terminations are unreviewable under 5 dominant that the federal system will be 701(a)(1) 702(1) § U.S.C. noting preclude assumеd to enforcement of state presumption reviewability ap laws on subject, the same or because “[wjhen plies it comes to matters touching object sought be obtained affairs”). on national federal security or foreign I would, law and however, the character of obligations im leave it to the district posed by may court on remand to address it reveal the question same purpose” (internal instance; in the first quotation omitted)); district court has marks Hines opined upon it and the parties Davidowitz, have not 52, 399, 312 U.S. 61 S.Ct. question briefed the sufficiently in this (1941); L.Ed. 581 see also Am. Ins. Ass’n court. Garamendi, 396, 539 U.S. 123 S.Ct. 2374, (2003); 156 L.Ed.2d 376 Boyle, 487

Nor is it obvious the common law would 500, 2510, 108 S.Ct. provide remedy. Idris a Federal rather than D.C. common likely law governs

Idris’s claim because that implicates claim rights “the and obligations of the United pleaded, As Idris’s claim does not call States,” Indus., Texas Inc. v. Mа Radcliff upon the inquire district any terials, Inc., 451 U.S. 101 S.Ct. way into the “President’s true motivation” (1981); 68 L.Ed.2d 500 see also for the bombing, nor has the Government Boyle Corp., Techs. shown the claim implicates any other mili- 2510, 101 (1988), L.Ed.2d 442 Still, tary objective. I would not hold federal common law the United the district court must entertain Idris’s may States be immune liability from on claim for defamation. I would hold alleged, Matteo, facts here see Barr v. that, extent, any, if has 3 L.Ed.2d ‍​‌​​​​‌‌‌‌‌‌​‌​‌‌​‌​​‌‌‌‌​‌​​​‌‌‌‌​​​‌‌‌‌‌‌​​​‌‌‍upon stated a claim relief be (holding prior to enactment — granted, nothing in Westfall constitutional allo- enjoyed Act—executive officers cation of immunity authority absolute liability from between the for dam ages under common law of and the if requires defamation branches that the they acted within perimeter” “outer of Court dismiss it. above, respectfully I dissent in Part II

III. Conclusion of Idris’s disposition the Court’s above, in Part I stated the reasons For for defamation. claim by the given reasons not for the re- with Court, I concur upon plaintiffs’ based

spect to stated For the reasons law of nations.

Case Details

Case Name: El-Shifa Pharmaceutical Industries Co. v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 27, 2009

Citation: 559 F.3d 578

Docket Number: 07-5174

Court Abbreviation: D.C. Cir.