El-Shifa Pharmaceutical Industries Company v. U.S., No. 07-5174 (D.C. Cir. 6/8/2010), No. 07-5174.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtGriffith
Docket NumberNo. 07-5174.
Decision Date08 June 2010

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No. 07-5174.
United States Court of Appeals, District of Columbia Circuit.
Argued December 16, 2009.
Decided June 8, 2010.

Appeal from the United States District Court for the District of Columbia, (No. 01cv00731).

Christian G. Vergonis argued the cause for appellants. With him on the briefs were Stephen J. Brogan, Timothy J. Finn, and Katherine E. Stern.

Beth S. Brinkmann, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Mark B. Stern and Dana J. Martin, Attorneys.


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Opinion for the Court filed by Circuit Judge GRIFFITH.

Opinion concurring in the judgment filed by Circuit Judge GINSBURG, with whom Circuit Judge ROGERS joins.

Opinion concurring in the judgment filed by Circuit Judge KAVANAUGH, with whom Chief Judge SENTELLE joins, and with whom Circuit Judges GINSBURG and ROGERS join as to Part I.

GRIFFITH, Circuit Judge.

The owners of a Sudanese pharmaceutical plant sued the United States for unjustifiably destroying the plant, failing to compensate them for its destruction, and defaming them by asserting they had ties to Osama bin Laden. The district court dismissed their complaint. A panel of this court affirmed, holding that the political question doctrine barred the plaintiffs' claims. After granting rehearing en banc, we now affirm the district court on the same ground.


On August 7, 1998, the terrorist network headed by Osama bin Laden bombed United States embassies in Kenya and Tanzania. Hundreds were killed and thousands injured. On August 20, the United States responded by launching nearly simultaneous missile strikes against two targets: a terrorist training camp in Afghanistan and a factory in Sudan believed to be "associated with the bin Ladin network" and "involved in the production of materials for chemical weapons." President William J. Clinton, Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 PUB. PAPERS 1460, 1461 (Aug. 20, 1998) [hereinafter Address to the Nation].

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President Clinton addressed the American people, explaining "the objective of this action and why it was necessary." Id. at 1460. "Our target was terror; our mission was clear: to strike at the network of radical groups affiliated with and funded by Usama bin Ladin, perhaps the preeminent organizer and financier of international terrorism in the world today." Id. "The risks from inaction, to America and the world, would be far greater than action," the President proclaimed, "for that would embolden our enemies, leaving their ability and their willingness to strike us intact." Id. at 1461.

In a letter to the Congress "consistent with the War Powers Resolution," the President reported that the strikes "were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities" and "were intended to prevent and deter additional attacks by a clearly identified terrorist threat." President William J. Clinton, Letter to Congressional Leaders Reporting on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 PUB. PAPERS 1464, 1464 (Aug. 21, 1998). The following day, in a radio address to the nation, President Clinton explained his decision to take military action, stating, "Our goals were to disrupt bin Ladin's terrorist network and destroy elements of its infrastructure in Afghanistan and Sudan. And our goal was to destroy, in Sudan, the factory with which bin Ladin's network is associated, which was producing an ingredient essential for nerve gas." President William J. Clinton, The President's Radio Address, 2 PUB. PAPERS 1464, 1465 (Aug. 22, 1998). Citing "compelling evidence that the bin Ladin network was poised to strike at us again" and was seeking to acquire chemical weapons, the President declared that "we simply could not stand idly by." Id.

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Other government officials elaborated upon the President's justifications for the attack on the plant. On the day of the strike, the Secretary of Defense stated that bin Laden "had some financial interest in contributing to this particular facility." Compl. at 13, El-Shifa Pharm. Indus. Co. v. United States, 402 F. Supp. 2d 267 (D.D.C. 2005) (Civ. No. 01-731). An unnamed "senior intelligence official" asserted at a press briefing, "[W]e know that bin Laden has made financial contributions to the Sudanese Military Industrial Complex[,] of which, we believe, the Shifa pharmaceutical plant is part." Id. And on August 23, the National Security Advisor maintained that "Osama bin Laden was providing key financial help for the plant." Id.

The plaintiffs in this case are the El-Shifa Pharmaceutical Industries Company (El-Shifa), the owner of the plant, and Salah El Din Ahmed Mohammed Idris (Idris), the principal owner of El-Shifa. They allege that striking the plant was a mistake, that it "was not a chemical weapons facility, was not connected to bin Laden or to terrorism, and was not otherwise a danger to public health and safety." Id. at 6. Instead, the plaintiffs contend, the plant was Sudan's largest manufacturer of medicinal products, responsible for producing over half the pharmaceuticals used in Sudan. Because the case comes to us on appeal from a dismissal for lack of subject-matter jurisdiction, we take the plaintiffs' allegations as true. See Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 572 n.1 (D.C. Cir. 2003).

According to the plaintiffs, within days of the attack, the press debunked the President's assertions that the plant was involved with chemical weapons and associated with bin Laden. Confronted with their error, senior administration and intelligence officials backpedaled, issuing what the plaintiffs characterize as "revised" or "new justifications" for the strike

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and conceding that any relationship between bin Laden and the plant was "indirect." Compl. at 17-19. Although the United States attacked the plant without knowing who owned it, officials learned within three days of the strike that Idris was the owner. After that point, "unidentified U.S. government officials" began telling reporters that Idris maintained direct or indirect financial relations with bin Laden, purchased the plant on bin Laden's behalf, acted as a front man or agent for bin Laden in Sudan, and had "ties" to bin Laden. Id. at 19-20. The plaintiffs contend that neither the contemporaneous nor post-hoc justifications for the attack were true: "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." Id. at 7.

This lawsuit is only one of several actions the plaintiffs pursued to recoup their losses. They also sued the United States in the Court of Federal Claims, seeking $50 million as just compensation under the Takings Clause of the Constitution. The court dismissed the suit 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." El-Shifa Pharm. Indus. Co. v. United States, 55 Fed. Cl. 751, 774 (2003). The United States Court of Appeals for the Federal Circuit affirmed, holding that the plaintiffs' takings claim raised a nonjusticiable political question. See El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1361-70 (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005). On the legislative front, one member of the House of Representatives introduced a bill to compensate those who suffered injuries or property damage in the missile strike, see H.R. 894, 107th Cong. (2001), and a resolution directing the claims court to

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investigate the matter and issue a report to the House, see H.R. Res. 81, 107th Cong. (2001) (citing 28 U.S.C. §§ 1492, 2509). Both the bill and the resolution died in committee.

The plaintiffs brought this action in the United States District Court for the District of Columbia after the CIA denied their requests for compensation for the plant's destruction and for a retraction of the allegations that the plaintiffs were involved with terrorism. The plaintiffs sought at least $50 million in damages under the Federal Tort Claims Act, claiming negligence in the government's investigation of the plant's ties to chemical weapons and Osama bin Laden and trespass in its destruction of the plant "without consent or justification." Compl. at 27. Their complaint also included a claim under the law of nations seeking a judicial declaration that the United States violated international law by failing to compensate them for the unjustified destruction of their property. Finally, the plaintiffs claimed that the President and other senior officials defamed them by publishing false statements linking Idris and the plant to bin Laden, international terrorism, or chemical weapons, knowing those statements were false or making them with reckless disregard for their veracity. The plaintiffs sought extraordinary relief: "[a] declaration that claims made by agents of the United States that Mr. Idris or El-Shifa are connected to Osama bin Laden, terrorist groups or the production of chemical weapons are false and defamatory" and "[a]n order requiring the United States to issue a retraction [of those claims] in the form of a press release." Id. at 31.

The district court granted the government's motion to dismiss the complaint for lack of subject-matter jurisdiction, see FED. R. CIV. P. 12(b)(1), concluding that sovereign immunity barred all of the plaintiffs'...

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