A federal appeals court in Washington today upheld the dismissal of a defamation suit for statements that Clinton administration officials reportedly made to the press to justify the missile attack against a pharmaceutical plant in Sudan in 1998.
The plant owner, Salah Idris, who was represented by Jones Day, had alleged government officials concocted a story tying him and the plant, El-Shifa Pharmaceutical Industries Co., to terrorism. Administration officials made statements to the press linking Idris to Osama bin Laden.
Idris’ suit in the U.S. District Court for the District of Columbia was dismissed on the ground that it implicated political questions that the court declined to answer. The U.S. Court of Appeals for the D.C. Circuit, in a split ruling in March 2009, ruled against Idris. The full appeals court heard oral argument in December, and the court today unanimously affirmed the dismissal of the suit for a second time.
The D.C. Circuit has consistently held the “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,” Judge Thomas Griffith wrote in today’s opinion. Click here for a copy of the D.C. Circuit ruling.
“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,” Griffith wrote.
The defamation claim, Griffith wrote, “requires us to determine the factual validity of the government’s stated reasons for the strike. If the political 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.”
The ruling was a win for the Justice Department in protecting the separation of powers between the courts and the president. Deputy Assistant Attorney General Beth Brinkmann, who heads the Civil Division's appellate section, argued the case before the full D.C. Circuit.
Judge Brett Kavanaugh, who agreed with the majority in affirming the dismissal of the suit, added in a concurring opinion that the suit was completely without merit and therefore the court did not need to address the political question doctrine at all.
“Importantly, the Supreme Court has invoked the political question doctrine only in cases alleging violations of the Constitution,” Kavanaugh wrote. “This is a statutory case. The Supreme Court has never applied the political question doctrine in a case involving alleged statutory violations. Never.”
In another opinion concurring with the judgment, Judge Douglas Ginsburg said the appeals court has expanded the scope of the political question doctrine, turning it into the political decision doctrine. Ginsburg said the new “political decision” doctrine means that the court cannot hear a case whose decision “could merely reflect adversely upon a decision constitutionally committed to the President.”
Lawyers for Idris, including Jones Day partner Christian Vergonis, who argued the case before the full appellate court, sought a declaration from the government that the claims linking Idris and his plant to terrorism were false and defamatory. Idris also wanted the government to issue a retraction in the form of a press release.
Idris’ attorneys argued that El-Shifa was not a chemical weapons facility but instead the largest manufacturer of medicine in Sudan. Vergonis said the government knew the El-Shifa plant had no ties to terrorism.
“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,” lawyers for Idris said in court papers.
Idris had also pursued a $50 million claim against the government in the U.S. Court of Federal Claims. That suit was dismissed in 2003 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.”
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