Political Question

• Author: International Law Group, PLLC
• Pages: 30-31

Page 30

The owners of a pharmaceutical plant in Sudan (Plaintiffs) sued the U.S. (Defendant) after the U.S. destroyed it with missiles in 1998. The U.S. President had ordered the missile strike shortly after the terrorist attacks on the U.S. embassies in Kenya and Tanzania because of the plant's alleged connections to Osama bin Laden.

Plaintiffs first sued in the U.S. Court of Federal Claims, seeking compensation under the Takings Clause of the Constitution. The Court dismissed that lawsuit as non-justiciable, and the U.S. Court of Appeals for the Federal Circuit affirmed. See El- Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346 (Fed. Cir. 2004). See also 2004 International Law Update 124.

Eventually, Plaintiffs filed the present lawsuit in the District of Columbia federal court seeking $50 million in damages. Plaintiffs also sought declaratory judgments that the defamatory statements linking them to "Osama bin Laden, international terrorist organizations and the production of chemical weapons" were false, and that the U.S. government's refusal to compensate them violates the Law of Nations.

The district court dismissed for lack of subject matter jurisdiction because the 1976 Foreign Sovereign Communities Act [CITE] bars these claims. The district court also pointed out that the lawsuit presented a non-justiciable Political Question. Plaintiffs appeal the dismissal of the equitable claims regarding defamation and the Law of Nations. The U.S. Court of Appeals for the District of Columbia Circuit, however, affirms.

"Although plaintiffs attempt to distance their law of nations and defamation claims from the nonjusticiable question of why the President ordered the missile strike, both claims nonetheless present questions 'inextricably intertwined' with the underlying [political] decision to attack the El-Shifa pharmaceutical plant. Plaintiffs' lawof-nations claim asserts that, under customary international law, a state must compensate a foreign national for the unjustified destruction of his or her property. Plaintiffs allege that the United States breached this principle by failing to compensate them for the destruction of their plant. In passing judgment on this claim, the district court could not avoid becoming arbiter of the President's battlefield actions and would need to determine whether his decision to bomb the plant was justified. ..."

"This a court cannot do. We have consistently held that courts are not a forum for...