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Full-text: April 4 2001
U.S. missile-strike on Sudan (August 20 1998)

United States District Court
for the District of Columbia

	)
El-Shifa Pharmaceutical	)
Industries Company and	)
)
Salah El Din Ahmed	)
Mohammed Idris	)
*** Raynham, Norfolk Crescent,	)
London, England,	)
Plaintiffs,	)
)
v.77	)
)
United States of America,	)
Defendant.	)
	)

Nature of the Action

1.  This is a civil action, pursuant to 5 U.S.C. § 702 and 28 U.S.C. §§ 1331, 1346, 1350, and 2201, for declaratory relief and for compensatory damages arising out of (1) the destruction of the El-Shifa pharmaceutical plant (the “Plant”) in North Khartoum, Sudan on or about August 20, 1998 by the armed forces of the United States as a result of the mistaken identification of the Plant as a chemical weapons facility and (2) false and defamatory statements made by United States government officials seeking to justify this action.

The Parties

2.  Plaintiff El-Shifa Pharmaceutical Industries Company (“El-Shifa”) is a stock corporation organized under the laws of Sudan. At all relevant times, El-Shifa was the owner of the Plant. {p.2}

3.  Plaintiff Salah El Din Ahmed Mohammed Idris is a citizen of Sudan and the Kingdom of Saudi Arabia. Mr. Idris is engaged in business and investment activities in many countries throughout the world, including the United States. He is also the principal owner of El-Shifa.

4.  The United States of America is the Defendant in this action.

Jurisdiction

5.  This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1346, and 1350.

Facts Common to All Counts

A. The Plant

6.  Sudan is among the world’s poorest countries, whose limited resources have been drained by civil war extending over 15 years. The people of Sudan suffer from many deadly diseases, including malaria, hepatitis, meningitis, tuberculosis, and bilharzia, as well as malnutrition and starvation in significant segments of the population. The livestock of Sudan, which plays an important role in the economy and nutrition of the country’s nomadic people, is commonly infected by parasites, malaria and other diseases. Sudan has one of the world’s lowest rates of medical doctors per general population and one of the most inadequate supplies of basic pharmaceuticals. Consequently, adult life expectancy in Sudan is depressingly low and infant mortality exceptionally high.

7.  Though small by western standards, El-Shifa was the largest pharmaceutical manufacturing company in Sudan, producing over 50% of both the human and veterinary pharmaceuticals distributed in that country. El-Shifa produced an even greater percentage of the antibiotics used to treat malaria, which is the leading cause of death in Sudan. {p.3}

8.  The Plant did not manufacture pharmaceuticals from raw material chemicals and did not have the sophisticated facilities that are needed to do so.

9.  The Plant was instead dedicated to encapsulating, mixing, blending, and packaging human and veterinary pharmaceuticals produced by others and distributing such pharmaceuticals in Sudan and elsewhere. The Plant repackaged pharmaceutical products, which were imported in bulk quantities, into finished consumer products such as tablets and capsules for ibuprofen, antibiotics, anti-malarial drugs, anti-diarrhea drugs, and infusion medicines.

10.  The Plant was divided into several different areas.

a.  In the primary section of the Plant’s main building, there were five lines that produced tablets, syrups, dry suspensions for oral use, creams, and ointments. Capsules for Shifambecine, an El Shifa-trademarked product similar to Refambicin used for the treatment of tuberculosis, were also manufactured in this section.

b.  The main building also contained a separate Beta-lactam section with a line for capsules and another for dry suspensions for oral use that produced antibiotics.

c.  There was as well a self-contained sterile area for the production of sterile injectable liquids in the main building.

d.  Another part of the Plant contained the veterinary factory, which had four lines that produced powders, large and small sachets, syrups, and sterile injectables.

e.  The Plant also contained a quality control laboratory, where analysis of raw materials and finished products took place as well as a water-purifying unit producing purified water and distilled water for syrups and medicines used for injections.

11.  The Plant did not contain any facilities sophisticated enough to be used to manufacture chemical weapons or any chemical components of chemical weapons. {p.4}

12.  By the time the Plant was destroyed in August 1998, El-Shifa had registered 33 commercial products with various regulatory authorities and organizations.

13.  The United Nations had also approved El-Shifa to supply veterinary medicines to Iraq under the U.N.’s “Oil for Food” program.

B. Salah Idris Purchases El-Shifa

14.  Salah Idris was born and raised in the town of Shendi in Sudan but emigrated to Saudi Arabia, where he became a highly-successful banker and businessman. Specifically, Mr. Idris became one of the top officers and a member of the Executive Committee of Saudi Arabia’s largest commercial bank, the National Commercial Bank of Saudi Arabia.

15.  Personally and through the National Commercial Bank of Saudi Arabia, Mr. Idris caused a number of financial investments to be made in his native Sudan that he hoped would provide needed jobs and commercial activity for impoverished Sudanese.

16.  In March 1998, Mr. Idris purchased the shares of El-Shifa for approximately $18 million in an arms-length business transaction with the private parties who previously owned the company. El-Shifa’s principal business activity was the ownership and operation of the Plant, which consisted of an administrative building, pharmaceutical plant, warehouse, and support facilities.

C. Foreign Inspection of the Plant

17.  The Plant was the beneficiary of a loan from the Eastern and Southern African Trade and Development Bank (“PTA”), a development bank for east African countries based in Nairobi, Kenya. As a result of the loan, PTA held a mortgage on the Plant for more than $5 million. In monitoring its loan, PTA continuously sent auditors to the Plant to ensure that it was operating as it was supposed to and that the prospects for repayment were real. {p.5}

18.  In the regular course of the business of PTA, these auditors made and kept records, which show that the Plant was engaged in the commercial production of pharmaceuticals. The factory’s own sales and production records, likewise made and kept in the regular course of the business of the Plant, also show its solely commercial nature.

19.  Because it addressed critical public health needs and was one of the few modern facilities of any kind in Sudan, the Plant was an object of public pride and a symbol of hope frequently shown to foreign visitors to Sudan. As a consequence, in the five-year period before the bombing, several thousand visitors toured the Plant. During these tours, every part of the Plant was open to visitors.

20.  When the Plant was attacked, Bobby May, a long-time friend of President Clinton and now a businessman seeking oil and gas investments in Africa, was in Khartoum. He had toured the Plant a few days before the raid and walked around it with no evident restrictions on his movement as El-Shifa employees packaged and bottled medicines.

D. The Attack on the Plant

21.  On or about August 20, 1998, the United States, without warning, purposefully destroyed the Plant, its fixtures, equipment, and inventory. According to statements by U.S. officials, the Plant was destroyed by cruise missiles launched from U.S. naval vessels stationed in international waters.

22.  The U.S. government stated that this attack was carried out in response to the bombings earlier that month of the U.S. embassies in Kenya and Tanzania by terrorists under the direction of Osama bin Laden in which many American, Kenyan, and Tanzanian citizens were killed. The U.S. treats bin Laden, who has been criminally indicted in the U.S. and is on the F.B.I.’s list of the “ten most wanted criminals,” as a criminal, not as a belligerent in wartime. {p.6}

23.  Only three days before the attack, then-President William Clinton appeared on national television and made certain admissions concerning his relationship with Monica Lewinsky that were personally and politically embarrassing to him and to the First Lady {4kb.html/txt, 87kb.pdf}. The negative political reaction to the President’s address, coupled with continued intense coverage of the Lewinsky matter, represented a low point in the Clinton presidency. Final approval of the attack was given less than 24 hours before the attack was launched and just prior to Ms. Lewinsky’s second appearance (on August 20) before the grand jury. President Clinton and his advisors hoped that destruction of the Plant and other action taken in response to the bombings would help restore his diminished presidential authority and popularity.

24.  There was no factual warrant for selecting the Plant for destruction. The United States was not at war with Sudan. The Plant 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.

E. The Initial Justifications

25.  The United States has not kept secret the evidence on which it relied in destroying the Plant. In on-the-record and off-the-record briefings, U.S. officials have repeatedly described the information in the U.S. government’s possession supposedly supporting the bombing and have indicated their willingness to disclose classified intelligence information to bolster the government’s case. For example, Secretary of State Madeleine Albright stated on August 21, 1998 that “[t]he information as to what we have will become available in time.” Similarly, Kenneth Bacon, the Assistant Secretary of Defense for Public Affairs, told reporters on September 8, 1998 that he would make what he called “the intelligence community” available to respond to press “questions” and would let them “talk about the intelligence.” {p.7}

26.  None of the U.S. government’s explanations for its actions in destroying the Plant, which have repeatedly changed when confronted with conflicting evidence, has any merit. All of the justifications for the attack advanced by the United States were based on false factual premises and were offered with reckless disregard for the truth based upon grossly incomplete research and unreasonable analysis of inconclusive intelligence.

1.  Production of Chemical Weapons

27.  The principal justification advanced for the attack on the Plant was that the Plant was involved in the production of chemical weapons.

a.  On the day of the attack, August 20, 1998, President Clinton described the El-Shifa pharmaceutical plant in a televised address to the nation {3kb.html, 8kb.html/txt, 90kb.pdf} as a “chemical weapons-related facility.”

b.  That same day Secretary of State Albright made similar sensational assertions to support the attack on this small, innocuous plant 8,000 miles from U.S. shores. She said: “In Sudan, they are there manufacturing nerve gas which could kill us all.”

c.  Other U.S. officials made less dramatic but equally false claims that the Plant manufactured O-ethylmethyl phosphonothioic acid, or EMPTA, a substance which is not itself a chemical weapon, but which can be used in the production of VX nerve gas. For example, the Department of State issued a statement on August 20, 1998 that “[t]he U.S. is confident that this Sudanese Government-controlled facility is involved in the production of chemical weapons agents including precursor chemicals for the deadly V series of nerve agents like for example, VX.”

d.  At a briefing on August 20, 1998, Secretary of Defense William S. Cohen stated: “We do know that this facility produces the precursors that can result in the production of {p.8} VX.” Secretary Cohen also stated that “the facility that was targeted in Khartoum produced the precursor chemicals that would allow the production of a type of VX nerve agent.” A “senior intelligence official” at Secretary Cohen’s briefing further stated that “[w]e know with high confidence that Shifa produces a precursor that is unique to the production of VX.”

e.  Samuel R. (“Sandy”) Berger, Assistant to the President for National Security Affairs, similarly stated on August 20, 1998 that “we know with great certainty [that the Plant] produces essentially the penultimate chemical to manufacture VX nerve gas....”

28.  These statements were false. The Plant was not a chemical weapons facility, and it was not involved in the production of chemical weapons or even chemicals used in the production of chemical weapons.

29.  The claim that the Plant produced EMPTA was eventually abandoned by U.S. officials. In fact, while Assistant Secretary of Defense for Public Affairs Kenneth Bacon stated at a press briefing on September 8, 1998, that “we believe now, as we did at the beginning, that this plant does make EMPTA,” his remarks were later “corrected” to read: “this plant had evidence of EMPTA present.” In addition, according to a report on August 21, 1999, an “administration official” told The Washington Post that statements made the night of the attack claiming knowledge that the Plant produced EMPTA were “inaccurate.” “We never had evidence of that,” the official said. “The correct statement, and it has been corrected, was that EMPTA was present at the plant.”

30.  According to the United States, a soil sample from the Plant showed the presence of EMPTA. This sample was taken from surface soil in the vicinity of the Plant months before the attack by an Egyptian operative. The United States claimed that the presence of EMPTA {p.9} proved involvement in chemical weapons production because the chemical has no known use other than as a component in the production of VX nerve gas.

31.  In fact, the Organization for the Prohibition of Chemical Weapons (“O.P.C.W.”), an international organization in the Hague responsible for monitoring international compliance with the chemical weapons treaty, classifies EMPTA as a schedule 2b compound, that is, a compound that can be used to make chemical weapons but that has commercial applications as well. According to the O.P.C.W., EMPTA can be used “in limited quantities for legitimate commercial purposes” such as fungicides and antimicrobial agents.

32.  The claim that EMPTA was present in the soil near the Plant was false. Neither EMPTA nor any other chemical weapons precursors were manufactured at, stored at, or transported to the Plant.

33.  The U.S. claim that EMPTA was found in soil near the Plant was a fabrication or a mistake resulting from seriously flawed procedures.

a.  A report or memorandum prepared by the Central Intelligence Agency on or about July 24, 1998 found that the soil sample taken and relied upon by the United States did not provide conclusive evidence of chemical weapon-related activity and recommended that more soil samples be taken to help determine whether the Plant was involved with making chemical weapons.

b.  The claim that EMPTA was found in the soil near the Plant is implausible on its face because, if present in ground soil, EMPTA breaks down quickly into a substance known as EMPA, which then would remain and be detectable in the soil for years. {p.10}

c.  The agent who supposedly collected the soil sample from El-Shifa was not a U.S. intelligence agent but an Egyptian operative. Given Egypt’s antipathy toward Sudan, a possible motive for providing false evidence must have been evident to the U.S. government.

d.  The chain of custody for the soil sample was inadequately documented, and there is therefore no way to exclude the possibility of tampering or contamination.

e.  The testing methods used by the U.S. in this case did not comport with O.P.C.W. standards for reliability. Among other things, analysts reportedly performed a lab test only on a single soil sample at a single laboratory, in breach of the most basic testing protocols, including the use of multiple labs to guard against false positives. EMPTA is chemically similar to several commercially available products, including the familiar suburban weed-killer called “Round Up.” In addition, the chemical structure of EMPTA resembles fonofos, an agricultural pesticide that is commercial available in Africa. As a consequence, if not carefully preserved and quickly tested, testing on a single soil sample could readily have misidentified the key ingredient.

34.  An extensive set of samples taken in October 1998 from soils around the Plant, from laboratory areas inside the Plant that remained covered by the roof, and from the Plant’s septic or “soak-away” tank were tested by two leading European laboratories, including TNO Prins Maurits in the Hague, one of the premier labs in the world for chemical weapons testing. Because tests showed that EMPTA would not have broken down in the soak-away sludge, the soak-away tank provided a particularly probative time capsule of previous activities at the Plant. All of the many samples taken from the Plant and its surroundings, including those from the soak-away tank showed no trace of either EMPTA or EMPA. {p.11}

2.  Commercial Use

35.  At the same time it incorrectly claimed that the Plant produced chemicals for weapons, the U.S. Government also insisted that the Plant was not a legitimate pharmaceutical facility because it produced no commercial products.

a.  On August 20, 1998, a “senior intelligence official” stated at a Department of Defense briefing that the Plant was “supposed to make pharmaceuticals. We have no evidence, have seen no products, commercial products that are sold out of this facility.”

b.  That same day, National Security Advisor Berger described the Plant as a “so-called pharmaceutical plant.” Three days later, he stated that the Plant “was used to produce a chemical that is used in the manufacture of VX nerve gas and has no other commercial distribution as far as we understand. We have physical evidence of that fact and very, very little doubt of it.”

36.  The Plant did produce legitimate commercial products. In fact, it supplied over half of all human and veterinary pharmaceuticals in Sudan; it had 33 registered commercial products; and it had been specifically approved by the United Nations to supply veterinary medicines. Moreover, the United States could have confirmed these facts through rudimentary investigation in Sudan or by contacting the United Nations.

37.  The erroneous U.S. claim that no commercial products were made at El-Shifa was based on an analyst’s survey of an Internet website for El-Shifa, which allegedly did not list any commercial products made at the Plant.

38.  On September 4 {sic: 2}, 1998, Secretary of Defense Cohen reportedly acknowledged that, when the United States launched cruise missiles against the Plant, it was unaware that the Plant made medicine and that the United States did not learn until several days after the attack that the {p.12} Plant made medicine. Five days later, Assistant Secretary of Defense for Public Affairs Bacon confirmed that the United States did not know until three days after the attack that the Plant made medicine.

3.  Security Provisions

39.  The United States claimed that the Plant was protected by unusual security measures. For example, at a Department of Defense briefing on August 20, 1998, a “senior intelligence official” said that “[t]he facility also has a secured perimeter and it’s patrolled by the Sudanese military.” Similarly, the Department of State described the destroyed facility as “located within a secured chemical plant.”

40.  In fact, El-Shifa was not guarded by the Sudanese military or protected by any elaborate security measures. Indeed, the level of security at the Plant was lower than at many urban American public schools. The Plant was bordered by a simple six-foot fence. It stood open to the street between a power station and a candy factory in a section of North Khartoum within a few kilometers of a residential neighborhood that includes the residences of ambassadors to the Sudan from France, Germany, Korea, Russia, India, and Saudi Arabia. In addition, the personnel assigned to plant security were unarmed and dressed in regular plant overalls, not in military uniforms.

41.  In addition, security inside the Plant was not strict. Shop-floor workers were allowed to wander freely throughout the Plant during meal-times and rest-breaks. Moreover, visitors were taken to all parts of the Plant.

42.  Satellite imagery of the Plant released by the Pentagon showed no evidence of military fortifications typical of chemical weapons installations. {p.13}

4.  Connection to Terrorism

43.  Initially, the U.S. government insisted that Osama bin Laden had a direct financial interest in El-Shifa and that the Plant was controlled by the Sudan Military Industrial Complex Corporation, a Sudanese government-controlled company.

a.  On August 20, 1998, President Clinton said the factory was a “terrorists’ base of operation and infrastructure” {3kb.html/txt, 84kb.pdf, 3kb.html} and was “associated with the bin Laden network.” {8kb.html/txt, 90kb.pdf}.

b.  That same day, a “senior intelligence officer” explained at Secretary Cohen’s press briefing that “we know that bin Laden has made financial contributions to the Sudanese Military Industrial Complex. That’s a distinct entity of which, we believe, the Shifa pharmaceutical facility is part.” Secretary Cohen himself said that bin Laden “had some financial interest in contributing to this particular facility.”

c.  On or about August 23, 1998, National Security Advisor Berger also said that “Osama bin Laden was providing key financial help for the plant.”

44.  In fact, there has never been any financial connection between the Plant and bin Laden. Osama bin Laden has never had any financial interest in the Plant, which is fully owned by El-Shifa, and he has never had any financial interest in El-Shifa. Moreover, bin Laden has not contributed in any manner to the Plant, its operation, or its owners.

45.  Faced with this reality, a U.S. intelligence officer acknowledged to the press on August 25, 1998 that there was no direct financial relationship between the Plant and bin Laden. On September 2, 1998, Secretary of Defense Cohen acknowledged that the financial connection between the Plant and bin Laden was at most “indirect.”

46.  In fact, the United States has found no evidence of even an “indirect” financial link between the Plant and bin Laden. The claimed connection was instead based on the {p.14} assumption that El-Shifa was part of the Sudan Military Industrial Complex Corporation, which in turn was believed to have received financial support from Osama bin Laden.

47.  The Plant is, however, 100% owned by El-Shifa, and the Sudan Military Industrial Complex Corporation has never had any ownership interest in either the Plant or in El-Shifa. Moreover, the Plant produced civilian medicines and was never part of anything that could be regarded as Sudan’s “military industrial complex.”

48.  Mr. Idris is not a member or supporter of the political party that controls the government of the Sudan and the Sudan Military Industrial Complex Corporation. To the contrary, he is a well-known supporter of a Sudanese political party that opposes the current government of the Sudan, and he regularly writes a thoughtful, dispassionate column in a Cairo-based newspaper that is critical of the current Sudanese regime.

F.  Public Criticism of the Initial Justifications

49.  Starting after the day of the attack, the U.S. decision to destroy the Plant encountered a firestorm of criticism as journalists investigated the Plant and the justifications offered for its destruction. Within ten days after the attack, those justifications had been refuted in the mass media around the world. For instance:

a.  The Chicago Tribune reported on August 28, 1998 that “American and European chemical weapons experts say the information presented so far to justify the attack on the Sudan factory is inconclusive.” “Since the attack, ... the Clinton Administration has altered its arguments, sometimes in the face of ambiguous evidence. Officials now admit that the plant produced medicines sold commercially in Sudan. Scientists in the U.S. and Europe maintain that the chemical EMPTA has potential commercial applications as well as being a precursor for VX {p.15} nerve gas. New reports also raise questions about the plant’s links to bin Laden’s financial empire.”

b.  That same day, The Wall Street Journal reported that an Italian pharmaceutical executive intimately involved with the Plant had confirmed that the Plant was not a chemical weapons facility. Dino Romanatti, whose Milan company supplies powders that generic drug-makers form into pills, told The Wall Street Journal that he was given the run of the Plant in long visits in February and June 1998. He stated that the managers even left him and his staff alone in the factory when they worked late and gave them keys to the main office to make international phone calls. Romanatti stated: “I didn’t see any equipment — and there wasn’t even the space — for any production of chemicals.... The availability of tools in the factory was close to zero, a saw. To imagine a plant that makes chemical weapons is absolutely incredible.... [N]either the management nor the management style changed after the sale to Salah Idris.”

c.  The New York Times stated on August 29, 1998 that “some of the key statements made by Administration officials to justify the attack have proven to be inaccurate, misleading or open to question.” The officials’ “descriptions of the plant as a highly secretive, tightly secured military-industrial site, their initial statement that the plant produced no commercial products, and their statements that the exiled Saudi millionaire, Osama bin Laden, directly financed the plant, do not appear to be factual.”

d.  On that day, Agence France Presse likewise reported that “experts say” unanswered “questions have cast a shadow of doubt over U.S. assertions that a key nerve gas ingredient was being made” at El-Shifa. {p.16}

e.  The Economist also reported {chargeable} at that time that “there was a growing consensus among diplomats and journalists in Khartoum that American intelligence had boobed.” The author stated that, after spending “more than two hours clambering over — and under — the smoking ruins,” he “found nothing to suggest that it was anything but a plant producing medicine for humans and veterinary drugs for animals. There was no sign of the hidden laboratories or storage rooms underground which some had darkly hinted at.”

50.  Bobby May, President Clinton’s friend who visited the Plant days before its destruction, said that he was sure that the U.S. government “had somehow got it terribly wrong.”

51.  American and European engineers and consultants who helped build, design, and supply the Plant have stated that it was not a chemical weapons facility. Tom Carnaffin, a British mechanical engineer who served as El-Shifa’s technical manager during its construction from 1992-1996, said that the Plant “just didn’t lend itself to making chemical weapons.” He has also stated that the Plant mixed pre-formulated chemicals into medicines and lacked the space to stockpile or manufacture other chemicals. “It wasn’t a large plant. Part of it was used to make veterinary medicines and ointments and part for human medicines. There was never anything like [making chemical weapons precursors]. It was a very open situation. Many people from different countries visited the factory. It would have been a very difficult thing to do [making precursors]. That wasn’t the intent of the factory at all.”

52.  Henry R. Jobe, a retired pharmaceutical consultant who helped design the Plant in 1996, as well as other plants in the Middle East, said that the Plant’s choice of equipment did not include any of the laboratory equipment needed to make chemical weapons.

53.  O.P.C.W. criticized the U.S. action. In an article appearing in The New Yorker on October 12, 1998, a senior O.P.C.W. inspector was reported to have stated that EMPTA was {p.17} unlikely to have been found unaltered in the ground, as the U.S. asserted, because EMPTA is highly reactive and once in the earth would react with other chemicals and begin to break down. In fact, the inspector said that, given EMPTA’s reactive nature, it was incredible to suggest that EMPTA could be isolated from a sample taken from the soil outside El-Shifa if it “came out of a smokestack or in effluent.” “The only way this material could be in the ground is if somebody had emptied a flask ... and then taken a sample. That’s credible.”

54.  The timing of the attack on the Plant, which occurred in the midst of intense publicity concerning President Clinton’s grand jury testimony and his politically-unsuccessful address to the nation on the Lewinsky matter delivered three days earlier on August 17, 1998 {4kb.html/txt, 87kb.pdf}, led to speculation in the media that the attack was an attempt to divert attention from President Clinton’s embarrassing personal and political problems.

G.  The Revised Justifications

55.  Faced with overwhelming evidence that El-Shifa was a pharmaceutical processing facility that could not have been producing chemical weapons, U.S. officials constructed a series of revised explanations that retreated from their earlier statements, but never admitted that a mistake had been made.

56.  On August 28 {29}, 1998, an “Administration official” was quoted in The New York Times as suggesting that EMPTA may have been stored, rather than manufactured at El-Shifa: “You could spin several scenarios as to why EMPTA [a precursor chemical] was found at the plant, including suppositions that the chemical was stored or transported there.”

57.  On September 2, 1998, Secretary of Defense Cohen admitted that when “the United States launched cruise missiles against [El-Shifa], it was unaware that the plant made {p.18} medicines.... [T]he United States did not learn until at least three days after the attack on the plant that it made medicine.”

58.  On September 8, 1998, Pentagon spokesman Kenneth Bacon retreated to the following vague justification: “I’m not saying the plant was capable of making VX. I’m saying we thought this was a plant that was a part of [a] program or part of a scheme to manufacture VX. Where it fit in I’m not going to comment at this stage.”

59.  In a PBS “Frontline” documentary aired in April 1999, National Security Advisor Samuel R. (“Sandy”) Berger backed away from earlier claims that El-Shifa was producing chemical weapons and had a financial link to bin Laden: “I don’t think that — I think that is not necessarily the case. I think it is certainly true that the plant was associated with chemical weapons.”

60.  The U.S. government also revised its claim that bin Laden provided financial support for El-Shifa. On August 24, 1998, an “Administration official” stated that bin Laden “has no direct investment in the pharmaceutical plant, but has ties to Sudan’s state-run military industrial complex.”

61.  On August 25, 1998, a “U.S. intelligence official” told the press that “there is no direct financial relationship between the plant and bin Laden.”

62.  On September 2, 1998, Secretary of Defense Cohen acknowledged that the “financial connection between the plant and Mr. bin Laden was at most indirect.”

G.  The Defamation of Mr. Idris

63.  The criticism engendered by the attack on the Plant was profoundly embarrassing to the United States officials responsible for misidentifying the Plant and causing its destruction. {p.19}

64.  In the face of mounting public criticism, U.S. officials had a strong incentive to find a new justification for their attack. Accordingly, rather than admit that a terrible mistake was made in destroying Mr. Idris’ property, U.S. officials compounded the damage to Mr. Idris by inventing new justifications for their actions that defamed Mr. Idris through public depiction of Mr. Idris as an associate and supporter of terrorists.

65.  The U.S. officials who authorized the attack did not know who owned El-Shifa at the time of the attack. Instead, as mentioned above, they erroneously assumed that El-Shifa was owned by the government of Sudan.

66.  By August 23, 1998, news reports had identified Salah Idris as the owner of El-Shifa. Beginning in the last week of August 1998, unidentified U.S. government officials made numerous statements to news reporters falsely describing Salah Idris as an associate of Osama bin Laden and international terrorist organizations. These statements were published in a series of newspaper articles in the United States and around the world. These articles include, but are not limited to, the following examples:

a.  On August 27, 1998, Newsday reported:

b.  On September 1, 1998, The Washington Post reported:

c.  On September 1, 1998, the Los Angeles Times reported that “[a]ccording to intelligence,” Mr. Idris was “a front man or agent for bin Laden.”

d.  On September 1, 1998, Agence France Presse reported that according to “an intelligence official speaking on condition of anonymity” intelligence collected after the August 20 strike concerning Mr. Idris “‘increasingly points to ties with (Osama) bin Laden.’”

e.  On September 4, 1998, Deutsche Press-Agentur reported that U.S. government officials “briefing reporters on the basis of no further identification: claimed that “the owner and manager of the plant were identified by U.S. intelligence as front men for bin Laden.”

f.  On October 4, 1998, The New York Times stated that, according to “U.S. intelligence officials,” Mr. Idris “has had financial dealings with members of Islamic Jihad, an Egypt-based group responsible for the assassination of President Anwar el-Sadat in 1981. Islamic Jihad, in turn, receives money and sponsorship from Mr. bin Laden and has been absorbed into his terror network....” These officials also reported that Mr. Idris “launders money for international Islamic groups, and that he also has a stake in a company in Sudan that is 40 percent owned by the Military Industrial Corporation, a Government entity that the United States says controls Sudanese chemical weapons development.”

67.  All of these claims were given to news reporters by U.S. officials on condition that their identify as sources not be disclosed. In each case, the information provided constituted selective leaking from, or characterization of, classified intelligence reports.

68.  All of these charges are false. Mr. Idris has never met Osama bin Laden; he is not a partner with bin Laden in any business ventures and has never had any dealings with bin Laden, commercial or otherwise; and he is not a financial supporter of bin Laden or Islamic Jihad. {p.21} Moreover, Mr. Idris maintains a residence and does business in Egypt, which would not be possible if the Egyptian government believed he had any ties to Islamic Jihad, which was responsible for the assassination of Anwar Sadat.

69.  The U.S. government has previously declined to defend its allegations that Mr. Idris is associated with terrorism.

70.  Four days after the attack on the Plant, the U.S. Department of the Treasury, Office of Foreign Assets Control, sent a letter to the Bank of America ordering that bank accounts containing some $24 million held by Mr. Idris be blocked pursuant to the authority of the Treasury Department under the Terrorism Sanctions Regulations, 31 C.F.R. Part 595. By freezing Mr. Idris’ accounts under these regulations, the United States publicly branded Mr. Idris as an individual providing assistance to terrorists.

71.  On February 16, 1999, Mr. Idris filed an action against the United States in the United States District Court for the District of Columbia to unfreeze the accounts.

72.  On May 3, 1999, the day on which the government’s answer was due to be filed, the United States Treasury Department issued an order unblocking the accounts, thereby effectively conceding the litigation.

73.  The United States has not, however, retracted any of its statements indicating that Mr. Idris is an associate of bin Laden and a supporter of international terrorism. To the contrary, even on the day the Treasury Department unblocked Mr. Idris’ accounts, government officials continued to justify their actions with statements intended to suggest that Mr. Idris was, in fact, {p.22} associated with terrorism. Speaking to the Associated Press on condition that his name not be revealed, a “senior administration official” made the following statements on May 3, 1999:

H.  Subsequent Investigations

74.  The day after the attack, the government of the Sudan opened the destroyed Plant to an inspection tour by diplomats in Khartoum from more than a dozen nations and called for a United Nations inspection to prove that no chemical weapons activity existed at El-Shifa. The United States used its position at the United Nations to block any inspection by the United Nations or by any other impartial international authorities.

75.  The United States also refused to permit the soil sample on which it relied to be re-tested by independent labs or to reveal any detail about the testing procedures that had been used to allegedly detect EMPTA.

76.  After the attack, U.S. intelligence agencies, including the Central Intelligence Agency, attempted to find information that would confirm the alleged association between the Plant and chemical weapons, including the presence of EMPTA. They were unable to do so.

77.  The U.S. State Department’s Bureau of Intelligence Research drafted a report that found inadequate the evidence on which the Administration relied to support the attack on the Plant. Thomas R. Pickering, Under Secretary of State for Political Affairs directed that this report should not be completed. Mr. Pickering’s directions to suppress this report overruled the {p.23} objections of Assistant Secretary Phyllis Oakley, a highly-respected, career State Department official with responsibility for the Bureau of Intelligence and Research.

78.  Independent investigations by various parties have found no support for any of the justifications offered by the United States for the destruction of El-Shifa.

79.  Patrick Eddington, a former CIA photo analyst, reviewed satellite imagery of the Plant before and after the attack released by the Pentagon and found no evidence whatsoever of military fortifications typical of chemical weapons installations. His conclusion is that the Plant was solely a pharmaceutical facility.

80.  Former U.S. Attorney General Ramsey Clark led a fact-finding mission to El-Shifa in September 1998, interviewing surviving workers, families of the victims, and U.N. representatives. Clark apologized for the attack and called on the U.S. to make financial restitution.

81.  An extensive report by the investigative firm of Kroll Associates concluded {copy} that Mr. Idris has no connections to bin Laden. The report found that El-Shifa was a legitimate pharmaceutical plant and did not manufacture EMPTA, other precursors, or VX gas. Kroll found no ties between the Plant and either the Iraqis or the Sudanese military industrial complex and determined that the Plant was lightly guarded by unarmed men dressed in overalls.

82.  Repeated examinations of the evidence by journalists have found the justifications offered by the U.S. for the attack to be factually unsupported. For instance:

a.  On July 25, 1999, The Washington Post summarized evidence refuting the government’s justifications and reported that “[a] growing chorus of critics around the world seemed unconvinced by the administration’s ‘compelling’ evidence....” {p.24}

b.  On October 27, 1999, The New York Times stated that “[r]eporters visiting the ruined building saw bottles of medicine but no signs of security precautions and no obvious signs of chemical weapons manufacturing operation.”

c.  The New Republic concluded in its November 22, 1999 issue that, “[n]ow, more than 14 months later, after repeated investigative reports and repeated evasions by the Clinton administration, it is clear that the missile attack [on the Plant] was a mistake. It’s time to say so.” {See also John B. Judis, Spencer Ackerman, “George Tenet Undermines the CIA: The Operator” (The New Republic, Sept. 9 2003}

I.  Reassertion of the Government’s Claim

83.  On July 27, 2000, El-Shifa and Salah Idris filed an action in the United States Court of Claims to obtain just compensation for the destruction of the Plant. Notwithstanding the accumulation of evidence demonstrating that the destruction of the Plan was a mistake, United States officials responded to this action by restating the defamatory claim that El-Shifa was involved with chemical weapons.

84.  In response, State Department spokesman Phillip Reeker stated: “Nearly two years since this attack, the evidence about the purpose of this chemical plant remains persuasive.” The Washington Post reported on September 27, 2000 that CIA Director George J. Tenet and other senior administration figures continue to maintain that the Plant “had at least a tangential connection to chemical weapons.”

J.  Exhaustion of Administrative Remedies

85.  On July 28, 2000, through counsel, Plaintiffs submitted a claim under the Federal Torts Claim Act to the Central Intelligence Agency for compensation for the injuries caused by the destruction of the Plant. In connection with that claim, Plaintiffs also requested retraction of the United States’ accusations that they were involved with international terrorism. {p.25}

86.  On August 17, 2000, through counsel, Plaintiffs submitted another letter informing the Central Intelligence Agency that the destruction of the Plant was a violation of customary international law as reflected in the laws and treaty obligations of the United States.

87.  On March 14, 2001, the Central Intelligence Agency notified Plaintiffs that it had denied their claims. The letter also stated that Plaintiffs could file suit in United States District Court within six months of the mailing of the notification. The letter did not, however, identify any defects in Plaintiffs’ claims.

Count One

Claim for Negligence
Under the Federal Tort Claims Act,
28 U.S.C. §§ 1346(b), 2674

88.  Plaintiffs incorporate herein by reference the allegations contained in the preceding paragraphs, as though the same were fully set forth at length herein.

89.  After the attack on the United States embassies in Kenya and Tanzania in August 1998, U.S. officials working in the United States at the Central Intelligence Agency and perhaps other agencies as well, as part of their duties as employees of the United States, gathered and analyzed information concerning the Plant in order to determine whether it produced chemical weapons or was associated with terrorist activities.

90.  In making these determinations, these officials were analyzing information, not exercising any policy discretion or policy judgment.

91.  These officials could reasonably foresee that the Plant might be attacked as a result of their determinations and that the Plant and its owners would be injured by any such attack.

92.  The officials determined that the Plant was producing chemical weapons and was connected with international terrorism based upon inadequate investigation, unreasonable {p.26} speculation, and otherwise negligent analysis that fell far below the standard of care demanded of, and normally exercised by, officials making such determinations.

a.  In determining that the Plant produced chemical weapons, the officials unreasonably relied upon a single soil sample that was supplied by a party of dubious credibility.

b.  The officials failed to test the sample according to established scientific procedures, and they failed to document the chain of custody properly.

c.  The officials unreasonably concluded that EMPTA could have been deposited and remained present in soil surrounding the Plant.

d.  The officials concluded that EMPTA had no commercial use without checking O.P.C.W. schedules showing that the chemical has such uses.

e.  The officials unreasonably concluded that El-Shifa was a heavily guarded military facility when that conclusion was not supported by satellite photographs and rudimentary reconnaissance at the Plant would have shown otherwise.

f.  The officials determined that the Plant did not produce commercial products based upon a search of a website without making any inquiries in Sudan itself concerning El-Shifa or checking with the United Nations.

g.  The officials determined that Osama bin Laden had an interest in the Plant without checking public records concerning the ownership of the Plant.

h.  The officials determined that Mr. Idris was associated with Osama bin Laden or with terrorist organizations without any reasonable evidence of such an association.

93.  As a result of these willful or negligent errors, the Plant was attacked, and the facilities, fixtures, equipment, and inventory of both finished and unfinished pharmaceuticals at {p.27} the Plant were destroyed. In addition, the property on which the Plant stood was rendered economically unusable by the attack on the Plant.

94.  In accordance with 28 U.S.C. § 2675(a), this claim was presented administratively to the Central Intelligence Agency on July 28, 2001 {sic: 2000}, which denied it on March 14, 2001.

Count Two

Claim for Trespass
Under the Federal Tort Claims Act,
28 U.S.C. §§ 1346(b), 2674

95.  Plaintiffs incorporate herein by reference the allegations contained in the preceding paragraphs, as though the same were fully set forth at length herein.

96.  The United States intentionally destroyed the facilities at the Plant, its fixtures, and inventory without consent or justification.

97.  The decision to attack the Plant, which led to the Plant’s destruction, was made by Administration officials in Washington, and it was carried out by naval personnel operating on the high seas.

98.  The United States has refused to pay just compensation for the destruction of the Plant and its fixtures.

99.  In the attack on the Plant, the facilities at the Plant, fixtures, equipment, and inventory of both finished and unfinished pharmaceuticals were all destroyed. In addition, the property on which the Plant stood was rendered economically unusable by the attack on the Plant.

100.  In accordance with 28 U.S.C. § 2675(a), this claim was presented administratively to the Central Intelligence Agency on July 28, 2001 {sic: 2000}, which denied it on March 14, 2001. {p.28}

Count Three

Defamation Claim
Against the United States
for Declaratory and Injunctive Relief

101.  Plaintiffs incorporate herein by reference the allegations contained in the preceding paragraphs, as though the same were fully set forth at length herein.

102.  The President and other senior officials of the United States made statements to the press linking Mr. Idris and El-Shifa to Osama bin Laden, international terrorist organizations and the production of chemical weapons.

103.  These statements were made with knowledge and intent that they would be republished by news media in the United States and throughout the world.

104.  These statements were false. Mr. Idris and El-Shifa do not support Mr. bin Laden or any international terrorist organization, they have no links to Mr. bin Laden or any terrorist organization, and they have no connection to chemical weapons.

105.  U.S. officials stating that Mr. Idris or El-Shifa have links to Osama bin Laden, international terrorist organizations or chemical weapons either knew that there were no such links or made their statements with reckless disregard for the truthfulness of the statements.

106.  Mr. Idris is engaged in substantial business and investment activities throughout the world, including the United States. The statements made by these senior officials of the United States damaged Mr. Idris’ reputation in the international business community, deterring individuals concerned that he might be linked to terrorism from doing business with him, and impairing his ability to engage in business and investment activities in the United States and in other countries throughout the world. {p.29}

107.  A declaration that these statements were false would help restore the reputations of Mr. Idris and El-Shifa and improve their ability to engage in business and investment activities in the United States and in other countries throughout the world.

Count Four

Claim for Declaratory Relief
For Violation of the Law of Nations

108.  Plaintiffs incorporate herein by reference the allegations contained in the preceding paragraphs, as though the same were fully set forth at length herein.

109.  As the United Nations Charter and various United Nation’s declarations recognize, the law of nations forbids the use of force and requires that countries use peaceful means to resolve disputes.

110.  Under the law of nations, a state is responsible for compensating citizens of other states for injuries resulting from any official act or omission violating the right of those individuals to property.

111.  The United States government has consistently recognized in diplomatic exchanges and in international forums that under international law compensation must be “prompt, adequate, and effective.” Thus, in 1938, in a famous exchange between Secretary of State Hull and the Minister of Foreign Relations of Mexico, the United States insisted that the property of aliens was protected by an international standard under which expropriation was subject to limitations — notably, that there must be “prompt, adequate, and effective compensation.” This principle has been frequently reiterated by other State Department personnel and by the President, and in the Hickenlooper Amendments {22 U.S.C. § 2370(e)} and other statutes Congress has recognized this principle as well.

112.  The United States destroyed the Plant without justification. {p.30}

113.  The United States did not attempt to use peaceful means to resolve its alleged concerns about the production of chemical weapons at the Plant and the Plant’s connection with international terrorism. Had the United States made inquiries with the Government of Sudan or otherwise used peaceful means to resolve its concerns about the Plant, it would have learned that those concerns were misplaced, and it would not have attacked and destroyed the Plant.

114.  The United States has refused to provide Plaintiffs with any compensation for the destruction of the Plant.

115.  The refusal of the United States to pay just compensation for the destruction of the Plant or otherwise acknowledge that the destruction of the Plant was mistaken and not justified under the law of nations has damaged the reputations of El-Shifa and Mr. Idris by fostering suspicion that they were engaged in the production of chemical weapons or other activities associated with terrorism. This damage to reputation has impaired the ability of Mr. Idris and El Shifa to engage in commercial business activities and to restore the destroyed pharmaceutical plant.

116.  A declaration that the destruction of the Plant violated the law of nations would help to restore the reputation of Mr. Idris and El-Shifa, and improve their ability to engage in pharmaceutical and other business activities in countries throughout the world.

Prayer for Relief

WHEREFORE, Plaintiff pray for relief and judgment against the defendant[s] as follows:

1.  Damages and compensation from the United States for the destruction of the El-Shifa pharmaceutical plant in an amount not less than $50 million. {p.31}

2.  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.

3.  An order requiring the United States to issue a retraction in the form of a press release of claims made by officials of the United States government that Mr. Idris or El-Shifa are connected to Osama bin Laden, terrorists groups, or the production of chemical weapons.

4.  A declaration that the United States attack on the El-Shifa pharmaceutical plant violated the law of nations.

5.  Pre-judgment and post-judgment interest, as provided by law.

6.  Reasonable attorneys’ fees and costs.

7.  Such other and further relief as this Court deems equitable, just and proper.

Respectfully Submitted,

 

{ Signature }

Stephen J. Brogan (No. 939082)
Timothy J. Finn (No. 963751)
Jonathan C. Rose (No. 117740)
Daniel H. Bromberg (No. 414122)

Jones, Day, Reavis & Pogue
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
Telephone: (202) 879-3939

Attorneys for Plaintiffs El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris

Date: April 4, 2001

 

Sources

These sources are quoted in the Complaint. –CJHjr:

 

This document is not copyrighted and may be freely quoted.

Charles Judson Harwood Jr.

Posted Nov. 1 2003. Updated Nov. 11 2003

http://homepage.ntlworld.com/jksonc/docs/el-shifa-ddc-d1.html