Friday, March 27, 2009

U.S. Bombing, Defamation Case Raises Political Questions

The D.C. Circuit in a split decision today affirmed the lower court's dismissal of a Sudanese pharmaceutical manufacturer's Federal Tort Claims Act case against the United States for negligence in bombing its facility in 1998 and for defamation in subsequently claiming that the owner was associatedwith terrorists.  The court ruled that the claims raised nonjusticiable political questions.

The plaintiffs, El-Shifa Pharmaceutical Industries and its owner Idris, claimed that the U.S. bombed their facility in 1998, arguing that the El Shifa plant was a "terrorists' base of operation" and "associated with the bin Laden network."  Clinton administration officials, once they learned that theseinitial justifications were wrong, then portrayed Idris as a friend and supporter of terrorists--a new justification for the bombing.

The defamation claim, growing out of these subsequent statements by Clinton administration officials, raises the more interesting political question issue.  Two judges--Griffith and Henderson--wrote that "[t]he 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," thus raising political questions.

But Judge Ginsburg in dissent wrote that subsequent justifications had nothing to do with the underlying decision to bomb the facility:

In any event, the Court errs in believing Idres's claim necessarily raises a political question simply because it implicates a strategic decision.  Apparently the Court believes the Constitution grants the Executive the unreviewable discretion to make defamatory statements even if they have nothing to do with the actual justification for a military decision because (or so the Court assumes) every public explanation of a military decision is "offered, in part at least, with strategic . . . objectives in mind."  That proposition is not only novel and frightening, it ignores Supreme Court precedent.

SDS

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