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DC Circuit dismisses suit against US for 1998 executive order to bomb Sudan

[JURIST] The US Court of Appeals for the DC Circuit [official website] on Friday upheld the dismissal [opinion, PDF] of a $50 million lawsuit against the US for the 1998 executive order authorizing a missile strike against a Sudan pharmaceutical plant issued by former president Bill Clinton [official profile]. The three-judge panel made its decision on grounds that Clinton's order was purely a political question [Cornell LII backgrounder] and not subject to judicial review. The Clinton administration justified the 1998 missile attacks as a response to terrorist attacks on US embassies in Kenya and Tanzania, since the pharmaceutical plant owned by El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris was allegedly financed by Osama bin Laden [BBC profile; JURIST news archive] and served as a base for terrorist operations. Plaintiffs El-Shifa and Idris deny any involvement in terrorist operations and filed a defamation and a law of nations claim under the Federal Torts Claim Act (FTCA) [28 USC § 1346(b)], seeking a declaratory judgment to absolve them from any alleged terrorist connections and compensation for the plant's allegedly unjustified destruction. While the district court dismissed the claim for a lack of subject matter jurisdiction, on appeal, the court relied on the principle that policy choices involving national security and foreign policy are the province of the executive branch and, as a matter of the separation of powers principle, fall outside of the judicial branch's review:

The making of such justifications is itself a policy decision that cannot be separated from the conduct of foreign relations and the exercise of the war power that it explains. Accordingly, we conclude that a decision on the defamation claim would necessarily cross the barrier marked by the political question doctrine. ... Plaintiffs’ defamation claim presents a challenge to the Executive’s foreign policy and national security decisionmaking, two areas clearly outside our authority. [citations omitted]
This was the third attempt of plaintiffs El-Shifa and Idris to recover damages for the destruction of the pharmaceutical plant. The initial suit was filed and dismissed as nonjusticiable in the US Court of Federal Claims [official website] under the Takings Clause of the US Constitution. The second action, brought as an administrative claim with the Central Intelligence Agency (CIA) [official website] under the FTCA, was dismissed by the CIA.

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