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(Source picture: US Defense Dept./Wikipedia)

(Source picture: US Defense Dept./Wikipedia)

El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris v. United States of America

Court United States Court of Appeals for the Federal Circuit, United States
Case number 03-5098
Decision title Decision
Decision date 11 August 2004
Parties
  • El-Shifa Pharmaceutical Industries Company
  • Salah El Din Ahmed Mohammed Idris
  • United States of America
Other names
  • El-Shifa II
Categories Terrorism
Keywords jurisdiction, Fifth Amendment, motion to dismiss, non-justiciable, political question doctrine, Terrorism
Links
Other countries involved
  • Sudan
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Summary

In August 1998, the US embassies in Kenya and Tanzania were bombed by terrorists loyal to Osama bin Laden. In retaliation, President Clinton ordered a missile strike on the El-Shifa pharmaceutical plant in Khartoum, Sudan, arguing that it was a base for terrorism. Later, it was proven that the plant had no ties to terrorists. Therefore, El-Shifa Pharmaceutical Industries brought complaints against the United States in the US Court of Federal Claims.

In March 2003, the US Court of Federal Claims dismissed the complaints as non-justiciable based on the ‘political question doctrine’ (which foresees that courts have no authority to hear or adjudge on matters that raise political, rather than legal, questions).

In August 2004, the Court of Appeals for the Federal Circuit upheld the decision of the Court of Federal Claims, finding that the complaints raised a non-justiciable political question. The Court reached this conclusion on the basis of the fact that the President is entrusted by the Constitution to render as enemy property the private property of an alien situated in a foreign country.

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Procedural history

A lawsuit filed with the US Court of Federal Claims for $50 million in losses was dismissed in March 2003 as non-justiciable based on the US ‘political question doctrine’.

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Related developments

Another claim was filed seeking damages for negligence and trespass. On 29 November 2005, the District Court of Colombia granted the government’s motion to dismiss the claim based on lack of subject matter jurisdiction. The Court found that sovereign immunity barred the claims.

The plaintiff’s motion to alter the judgment regarding their equitable relief was later denied as well.

On 27 March 2009, the Court of Appeals held that “courts are not a forum for second-guessing the merits of foreign policy and national security decisions” (p. 8), and upheld the District Court’s decision.

On 3 August 2009, the Court of Appeals ordered that its previous judgment be vacated and the case be re-heard by the Court sitting en banc.

On 8 June 2010, the US Court of Appeal (sitting en banc) affirmed the decision of the District Court once again.

In January 2011, the US Supreme Court refused to reconsider the dismissal. See 'Court Won’t Reconsider Sudan Lawsuit Dismissal', CBS News, 18 January 2011.

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Legally relevant facts

In August 1998, the US embassies in Kenya and Tanzania were bombed by terrorists loyal to Osama bin Laden. In retaliation, President Clinton ordered a missile strike on the El-Shifa pharmaceutical plant in Khartoum, Sudan. The attack was justified by the claim that the plant was a base for terrorism. US officials also claimed that the plant was used in the manufacture of chemical weapons. The plaintiffs denied the accusations. It was later proved that the plant had no ties to bin Laden and that only medical products were manufactured at the plant. Having learnt that their initial justifications were false, officials in the Clinton Administration offered new explanations, claiming that the plant owners supported terrorism (pp. 2-4).

The Court of Federal Claims dismissed the complaint on the grounds that the US Government’s conduct “did not rise to the level of a taking under the Fifth Amendment to the United States Constitution” (p. 2).

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Core legal questions

  • Did the Court of Federal Claims err when it dismissed El-Shifa’s complaints for failing to state a claim upon which relief can be granted?

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Specific legal rules and provisions

  • Articles II and III (section 1) of the US Constitution.
  • Fifth Amendment to the US Constitution.
  • Section 2502 of the Reciprocity Act (Aliens’ Privilege to Sue).

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Court's holding and analysis

The Court found that “Article III, section 1 of the Constitution does not encompass judicial supervision over the President’s designation as enemy property the private property belonging to aliens located outside the territory of the United States” (p. 26).

In addressing the issue of whether the raised matters are political questions, the Court invoked a six-level test imposed by the US Supreme Court in Baker v. Carr  for the determination of a non-justiciable political question (p. 26). The Court concluded that “the facts and circumstances of this case satisfy the first Baker test [i.e., “a textually demonstrable constitutional commitment of the issue to a coordinate political department”] for the presence of a nonjusticiable political question” (p. 27).

The Court explained that the “'issue' presented here … is the inherent power vel non of the President to designate as enemy property the private property of an alien that is situated on foreign soil” (pp. 27-28).

“We think consideration of the decisional law touching on the nature and scope of the President’s war powers sheds important light on our present inquiry under Baker’s 'demonstrable textual commitment' test” (p. 30).

“In exercising the power to wage war, the President finds authorization in the Constitution itself to ‘direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war’” (p. 30).

“In our view, the President’s power to wage war must also necessarily include the power to make extraterritorial enemy property designations because such designations are also an important incident to the conduct of war” (p. 31).

“(…) our analysis under the first Baker test is not at an end. This is so because the entirety of the war powers the Constitution creates are not the President’s to exercise alone. They are instead shared with the Congress and the federal courts, especially where an individual’s right to own and enjoy property is concerned” (pp. 32-33).

“The appellants’ theory of takings liability centers on the alleged inaccuracy of the President’s designation of the Plant as enemy property” (p. 33).

“We conclude only that the Constitution does not contemplate or support the type of supervision over the President’s extraterritorial enemy property designations the appellants request in this case” (p. 34).

The Court concluded that “the Constitution, in its text and by its structure, commits to the President the power to make extraterritorial enemy property designations such as the one made regarding the appellants’ Plant” (p. 37).

Accordingly, “the decision of the Court of Federal Claims to dismiss the complaint because it raises a nonjusticiable political question [was] affirmed” (p. 44).

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Further analysis

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Instruments cited

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Related cases

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Additional materials