D.C. Circuit Rejects Defamation Suit Against U.S.

The owner of a Sudanese pharmaceutical plant that was bombed by the United States in 1998 for its alleged connection to terrorist activity cannot sue the government for defamation because the claims raise political questions that the courts should refrain from resolving, the U.S. Court of Appeals for the D.C. Circuit ruled today.

Jones Day lawyers representing the plant owners say that government officials, including President Bill Clinton, made defamatory public remarks linking the El-Shifa pharmaceutical plant to terrorism. Clinton said the El-Shifa plant was a “terrorist base of operation” and “associated with the bin Laden network.” The remarks, the lawyers say, were made to justify the missile strike after the fact.

Clinton officials, according to court records, learned their initial justifications for the attack were wrong and then tried to link the plant owner, Salah El Din Ahmed Mohammed Idris, to terrorist activities. In published articles about the bombing, national newspaper quoted government officials anonymously saying that Idris was linked with bin Laden. Lawyers for Idris say the claims are false.

The U.S. Court of Appeals for the Federal Circuit in 2004 affirmed the dismissal of a lawsuit seeking $50 million in compensation for the destruction of the plant. The Jones Day team filed suit in the U.S. District Court for the District of Columbia under the Federal Tort Claims Act seeking, among other things, a declaratory judgment that the government claims about Idris and his plant were false. A district court judged dismissed the action.

Circuit Judges Thomas Griffith and Karen LeCraft Henderson said today in an opinion that Idris raises questions that are “inextricably intertwined” with Clinton’s decision to bomb the pharmaceutical plant.

“We have consistently held that courts are not a forum for second-guessing the merits of foreign policy and national security decisions textually committed to the political branches,” Griffith wrote in the opinion. The majority found that presidential statements about discrete military action “are always offered, in part at least, with strategic military, national security, or foreign policy objectives in mind.”

Judge Douglas Ginsburg wrote in dissent, saying he would remand the defamation claim to the trial court for further proceedings. Ginsburg said the claim does not necessarily raise a political question simply because it implicates a strategic decision made by the executive branch. The government statements were made after the attack and therefore Idris’ claims do not go to the actual motivation of the military strike.

Ginsburg questions the majority opinion that found “no trouble” protecting statements presidents make about military actions. “Apparently the court believes the Constitution grants the Executive the unreviewable discretion to make defamatory statements,” Ginsburg wrote, even when the statements have nothing to with the actual justification for a military decision. “This proposition is not only novel and frightening, it ignores Supreme Court precedent,” Ginsburg wrote.

Jones Day partner Christian Vergonis, who argued the case in the D.C. Circuit for Idris, says the firm is considering its options for further appeal. Vergonis says Idris wants the government to retract false statements that were “made to protect the Clinton administration from further embarrassment after press reports completely undermined the original rationales for the attack.”

Comments

[Dr. Aidun Dravidian]

This case,based on its merits, comes down to the invocation of the political question doctrine as it involves a separation of powers doctrine, ergo, it has a constitutional mooring. At least, that's what the Court said. But the constitution per se is the supreme law of the land, in other words, it is written law just like any other piece of legislation.

So why split hairs about constitutional and statutory because both are memorialized in writing as laws. Can the least dangerous branch of our government say what it means and mean what it says so that res judicata can have relevance?