Wednesday, June 16, 2010
The full D.C. Circuit ruled last week in a divided opinion (5-4) that the political question doctrine prevented the courts from hearing the plaintiffs' case against the government for President Clinton's bombing of their factory for alleged ties to al Qaeda.
The case, El-Shifa Pharmaceutical Industries Co. v. U.S., arose out of President Clinton's Tomahawk missile strikes on a drug manufacturing plant believed to be associated with al Qaeda. President Clinton ordered the strikes in response to al Qaeda's bombing of U.S. embassies in Kenya and Tanzania in August 1998.
The plaintiffs brought a defamation claim and a claim under international law against the U.S. government, but the D.C. Circuit upheld the lower court's dismissal based on the political question doctrine. The political question doctrine prevents the courts from hearing certain cases that are "constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Op. at 7 (citing Japan Whaling Ass'n v. Am. Cetacean Society. The seminal Supreme Court case on the political question doctrine, Baker v. Carr, explained that a political question involved the following:
a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
The majority wrote that the circuit followed a distinction between determining whether certain policy decisions were "wise" and determining whether certain policy decisions presented a legal issue. The former is a political question; the latter is not.
According to the majority, the issues here involved determining whether policy decisions were "wise." As to the international law claim--which would require the government to compensate the plaintiffs for property destruction that was "mistaken and not justified"--the court wrote that "[w]hether an attack on a foreign target is justified--that is whether it is warranted or well-grounded--is a quintessential 'policy choice and value determination constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Op. at 15. As to the defamation claim, the court wrote that "[i]t too would require the court to reconsider the merits of the decision to strike the El-Shifa plant by determining whether the government's justifications for the attack were false." Op. at 18.
The majority distinguished federal habeas review of detainees under Boumediene by writing that the Suspension Clause contemplates federal court review. The cases involving seizure of "enemy property" are similarly inapplicable, because none of those cases "required the courts to scrutinize a decision constitutionally committed wholly to the political branches." Op. at 24. (The dissent points out that President Clinton justified the attacks based only on his Article II Commander-in-Chief power--the constitutional commitment here.)
The dissent wrote that the majority inappropriately expanded the political question doctrine and with it executive authority (becuase the majority declined to review this executive decision because it was an executive decision). Like the majority, the dissent would have dismissed the case, but based upon the plaintiffs' failure to allege a cognizable cause of action, not the political question doctrine.
The majority's distinction between review of the wisdom of policy decisions and review of the legality of policy decisions is problemmatic, because it fails to articulate a limit on the political question doctrine, especially as the majority applied that distinction in this case. (The plaintiffs' claims are as much, or more, about the legality of the policy as the wisdom of the policy. In truth, the two overlap, collapsing the dichotomy that the majority relies upon.) Given the ruling here, it's hard to see what wouldn't be a decision on the wisdom of a policy, as opposed to the legality of a policy.
Detention of unlawful combatants is a good example. As the majority writes, the Suspension Clause contemplates a role for judicial review. But this is only because the Court has ruled on the Suspension Clause--because the Court has opened this door. This is the very issue in this case--whether the courts can review the plaintiffs' defamation and international law claims--and not a basis for distinguishing this case. Moreover, as we've seen in the lower courts' initial struggles in the wake of Boumediene, habeas for alleged unlawful combatants presents many of the same problems that the Court uses to justify and explain the political question doctrine in Baker v. Carr. Yet these cases are not political questions.
By the majority's reckoning, it seems they should be. And moreover, it seems that any issue related to foreign policy should be a political question--not only Boumediene, but also Hamdi, Hamdan, and the whole lot of cases arising out of the government's pursuit of terrorists. Even if the D.C. Circuit's distinction is coherent--which it isn't--the ruling has the surprising result that the courts could review executive detention but not executive bombings.
If the case goes up, the Supreme Court could have to wrestle with this tough, common-sensical question: Why can the courts review executive detention, but not the (potentially much more destructive) executive bombing?