The federal government should be held liable for defamation for anonymous, allegedly false statements made by senior Clinton administration officials to the press about the justification for the 1998 bombing of a pharmaceutical plant in Sudan, the plant's lawyer told the full U.S. Court of Appeals for the D.C. Circuit today.
The nine active judges of the appeals court today met in a rare full session today for 90 minutes to explore the scope of the political question doctrine, which largely blocks federal courts from digging into foreign policy decisions.
The plaintiff, Salah Idris, represented by Jones Day, is seeking a declaration from the government that the justification for the missile attack—anonymous government officials claimed Idris had ties to terrorists—was wrong. Idris, who purchased the plant in March 1998 for about $18 million, is not seeking monetary damages.
The statements at issue in the case were made after the fact to reporters and do not go to President Bill Clinton’s decision to order the military strike against El-Shifa Pharmaceutical Industries Company, Jones Day partner Christian Vergonis argued today.
On the day of the bombing, Clinton said the El-Shifa plant was targeted because the United States believed it was being used to produce materials for chemical weapons. Jones Day lawyers said in court papers that the plant produced over half of the human and veterinary medicine distributed in Sudan, including antibiotics used to treat malaria.
Lawyers for Idris say the government fabricated a new explanation for the attack in the days after the bombing, saying that Idris was a “partner” with Osama bin Laden. Major newspapers quoted unidentified intelligence officials as the source of the statements.
The statements from the anonymous sources are the centerpiece of Idris’ suit against the United States, which was filed in 2001 in the U.S. District Court for the District of Columbia. (The suit once included a damages component under the Federal Tort Claims Act, but Idris did not pursue this claim in the D.C. Circuit.) The trial judge dismissed the complaint. In March, a divided D.C. Circuit panel upheld the dismissal of the suit. The full court in August agreed to hear the case.
Today at oral argument, eight of the nine judges asked questions. The lone dissenting judge from the original case, Douglas Ginsburg, appeared to be the most vocal advocate today for Idris and his lawyers. In his dissent, Ginsburg called it a “novel and frightening” proposition to allow executive branch officials unlimited discretion to say whatever they want even when statements do not go to the heart of policy decisions.
Judge Merrick Garland questioned whether Idris has a federal claim, since there is no federal common law defamation cause of action. “I’ve looked,” Garland said at one point. Vergonis said the government would have likely removed a state suit to federal district court.
Judge David Tatel said he was having trouble separating Clinton’s statements in support of the bombing from those statements the unidentified officials made to the press. “They didn’t just pick him out of the blue because he’s a Sudanese businessman,” Tatel said.
Vergonis urged the court to reverse the case to the trial court for further proceedings. He said exploring the facts underlying a policy decision is reviewable by courts. The political question doctrine, he said, bars an examination of the policy decision itself.
Former Morrison & Foerster partner Beth Brinkmann, deputy assistant attorney general in the Justice Department’s Civil Division, argued for the government. A group of Justice lawyers, including Principal Deputy Solicitor General Neal Katyal, sat in the courtroom’s front row.
Brinkmann, who heads the department’s civil appellate staff, said an examination of the statements from the anonymously quoted officials cannot be done without undermining Clinton’s decision to bomb the El-Shifa plant.
The attack on the El-Shifa plant happened just days after Clinton's grand jury testimony in the Monica Lewinsky scandal, a fact noted in briefs by the plaintiffs. Idris' lawyers said in court papers that there was "widespread speculation" that Clinton launched the attack to divert attention from his personal problems.
Neither Brinkmann nor Vergonis brought Lewinsky into the fold today at oral argument, and none of the judges asked.