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Full-text: June 14 2001 El-Shifa, dismissed, Nov. 29 2005, motion to alter judgment denied, March 28 2007 (No. 01-CV-00731), appeal docketed, May 31 2007, oral argument, April 7 2008 (No. 07-5174) (U.S. missile-strike on Sudan, August 20 1998).

United States District Court for the District of Columbia

Filed, Jun 14 2001, Clerk U.S. District Court, District of Columbia

Civil Action No.
1:01CV00731 (RWR)


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

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Dismiss

Introduction

In August 1998, the United States destroyed a pharmaceutical plant in Sudan that supplied badly-needed medicines to that impoverished country. The plant, which was owned by plaintiff El-Shifa, was targeted for destruction upon the mistaken belief that it produced materials for chemical weapons, a belief that was based upon the negligent analysis of a ground soil sample taken from the plant months before its destruction. In this lawsuit, the El-Shifa Pharmaceutical Industries Company (“El-Shifa”) and its primary owner, Salah Idris, seek compensation for the negligent and unjustified destruction of the plant and a declaration that its destruction without compensation violated the law of nations. In addition, because government officials recklessly attempted to link Mr. Idris to international terrorism after the administration’s justifications for the attack were refuted in the press, Mr. Idris also seeks a declaration that the government defamed him and a retraction of those statements.

In the motion to dismiss currently before this Court, the government seeks to evade the merits of these claims and avoid any discovery into its actions. The government contends that plaintiffs’ claims are barred by sovereign immunity or, alternatively, that the political question doctrine prevents this Court from considering them. The arguments that the government offers in support of these sweeping contentions cannot, however, withstand scrutiny.

Some of the arguments advanced by the government simply ignore the facts alleged in the complaint and the standards that must be applied at the pleadings stage. For example, in asserting that the discretionary functions exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a), bars plaintiffs’ negligence claim, the government contends that the negligent ground soil analysis involved “elements of judgment and choice” and, in any event, was “inextricably intertwined” with the President’s protected decision to retaliate against the 1998 embassy bombings. Def. Mem. at 11-13 (quotation omitted). The government does not, { p.2 } however, point to anything in the complaint that supports either assertion. Plaintiffs do not, as the government contends, seek judicial review of the President’s decision making; they seek review of a demonstrably erroneous factual determination based on a mistaken soil analysis that led the misidentification of the plant as a chemical weapons facility and its subsequent destruction. Moreover, whether this non-discretionary factual determination is “inextricably intertwined” with protected decision making is a question of fact that cannot be decided against plaintiffs on the basis of the complaint. Accordingly, the government’s discretionary functions arguments are at best premature and must at least be deferred until plaintiffs have had a chance to test the factual premises of those arguments through discovery. See, e.g., Berkovitz v. United States, 486 U.S. 531, 547-48 (1988); Ignatiev v. United States {14kb.html/txt, 12kb.txt}, 238 F.3d 464, 466-67 (D.C. Cir. 2001).

Other arguments advanced by the government are premised upon legal errors. For example, the government contends that the foreign country exception to the FTCA, 28 U.S.C. § 2680(k), bars plaintiffs’ negligence claim, presumably upon the theory that the injury suffered by plaintiffs occurred in a foreign country. See Def. Mem. at 15. That exception applies, however, when the conduct challenged, not the injury suffered, occurs in a foreign country. See, e.g., Sami v. United States, 617 F.2d 755, 762 (D.C. Cir. 1979). Since the negligent analysis that led to the targeting and destruction of the El-Shifa pharmaceutical plant occurred in the United States, the exception does not apply here. Similarly, the government’s reliance upon the combatant activities exception (see Def. Mem. at 13-15) is misplaced because that exception applies only “during time of war,” 28 U.S.C. § 2680(j), and the government’s own authority recognizes that there is no war unless the United States is engaged in significant hostile { p.3 } encounters with the armed forces of another country. See Koohi v. United States, 976 F.2d 1328, 1335 (9th Cir. 1992).

Finally, the government’s political question arguments suffer from both legal and factual flaws. It is well-settled that the political question doctrine does not bar consideration of all cases that touch upon sensitive military and foreign policy issues. See, e.g., Baker v. Carr, 369 U.S. 186, 211 (1962); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514 {500 kb} (D.C. Cir. 1984) (en banc), vacated on other grounds, 471 U.S. 1113 (1985). Instead, the doctrine requires a “discriminating inquiry” into the specific legal issues presented in the case focusing primarily upon whether there is a “textually demonstrable constitutional commitment” of those issues to one of the political branches. Baker, 369 U.S. at 217. The government’s brief does not show how plaintiffs’ request for damages and declaratory relief based upon theories such as negligence and defamation raises such issues. In fact, the government does not even attempt to identify the legal issues raised by plaintiffs’ claims. Instead, the government simply cites an array of cases concerning Executive Branch authority without making any real effort to establish their relevance to the facts of this case.

The government has good reason to want to avoid any discovery or consideration of plaintiffs’ claims on their merits. As the extensive press criticism and other analyses of the attack on the El-Shifa plant made clear, see Complaint ¶¶ 49-62, 74-82, the government’s determination that the plant was involved in chemical weapons production based on its analysis of a soil sample was reckless, negligent, and wrong. Thus, any investigation into the attack is sure to embarrass at least some former and current government officials. The government has not, however, demonstrated any legal basis for barring plaintiffs from seeking relief from the { p.4 } tragic errors that led to the destruction of the El-Shifa pharmaceutical plant and the subsequent defamation of Mr. Idris.

Counterstatement of Facts

The government’s brief virtually ignores the facts alleged in the complaint. 1  Because the arguments advanced by the government turn on the specific nature of plaintiffs’ claims which in turn depend upon the specific allegations in the complaint, it is necessary to describe those allegations for the Court.

The Plant and the Plaintiffs — Plaintiff El-Shifa is a Sudanese corporation that, before August 20, 1998, operated a pharmaceutical plant near Khartoum in Sudan. See Complaint ¶¶ 1-2, 16. The plant was small and unsophisticated by Western standards; indeed, it did not even have the capacity to ‘manufacture pharmaceuticals from raw chemicals. See id. ¶¶ 7-8, 11, 49(b), 51-52. The plant was instead dedicated to repackaging pharmaceuticals produced by others and distributing them in Sudan and elsewhere. See id.  9. Nevertheless, the plant played an important role in Sudan, which is one of the poorest countries in the world. See id. ¶ 6. In fact, it produced over half of the human and veterinary medicines distributed in Sudan and an even greater percentage of the antibiotics used to treat malaria, the leading cause of death there. See id. ¶ 7.

Because the plant was one of the few modern facilities in the country, it was a source of public pride that was frequently shown to foreign visitors. See Complaint ¶ 19. These visitors, including Americans and other Westerners, were given the run of the entire plant, which had little security beyond a simple six-foot tall fence. See id. ¶¶ 19-20, 40-41, 49(b), 51. In addition, { p.5 } a regional development bank that had made a large loan to the company frequently sent auditors to monitor the loan and inspect the plant’s operations. See id. ¶ 17-18. None of these many visitors saw that the plant was anything other than what it purported to be: a pharmaceutical repackaging facility. See id. ¶¶ 49-52.

Plaintiff Salah Idris is a successful Middle Eastern banker and businessman, originally from Sudan. See Complaint ¶¶ 14. A well-known supporter of an opposition party, Mr. Idris regularly writes a column critical of that regime in a newspaper based in Egypt, where he maintains a residence. See id. ¶¶ 48, 68. In March 1998, Mr. Idris purchased El-Shifa for approximately $18 million dollars. See id. ¶ 16.

The Embassy Bombings and the Destruction of the El-Shifa Plant — In August 1998, several months after Mr. Idris purchased El-Shifa, United States embassies in Kenya and Tanzania were bombed by terrorists associated with Osama bin Laden. See Complaint ¶ 22. On August 20, 1998, the United States retaliated against these attacks by launching cruise missiles on training camps in Afghanistan operated by groups affiliated with bin Laden and upon the El-Shifa plant, which then-President Clinton said was “being used to produce materials for chemical weapons” and “served to facilitate directly the efforts of terrorists specifically identified with attacks on U.S. personnel and facilities, that is, bin Laden and his associates.” 2  Def. Mem. at 3 (quotation omitted). See Complaint ¶ 21. This attack occurred three days after President Clinton publicly admitted his relationship with Monica Lewinsky. See Complaint ¶ 23. { p.6 }

The Soil Sample — Following the attack on the plant, government officials explained why the El-Shifa plant was targeted for destruction in various public statements. The government revealed that it relied principally on evidence purportedly provided by a soil sample that was taken from somewhere near the plant some time before its destruction. See Complaint ¶ 30. The United States claimed that, when tested, the sample was found to contain O-ethylmethyl phosponothioc acid, or EMPTA. See id. Since EMPTA is used in the production of certain nerve gases, the government concluded that the plant was involved in the production of chemical weapons. See id. ¶ 27.

This conclusion was negligent and erroneous. There was no EMPTA in the soil sample. Neither EMPTA nor any other chemical weapons precursors were manufactured at, stored at, or transported to the plant. See Complaint ¶ 32. Extensive testing of the soil and the soak-away tank at the plant refuted the government’s claim. See id. ¶ 34. Moreover, the conclusion that EMPTA was present in the soil sample was based upon erroneous testing that was conducted in disregard of normal safeguards against false positives and tampering or contamination. See id. 3 

The Defamation of Salah Idris — The attack on the plant triggered a firestorm of criticism in the press, which quickly debunked each of the justifications offered for it. See Complaint ¶¶ 49-53; see also id. ¶ 82 (discussing later investigations by the Washington Post, The New York Times, and The New Republic confirming the government’s errors). In the face of these mounting objections, U.S. officials offered another justification for the attack: they claimed that { p.7 } Mr. Idris, the owner of the plant, was a supporter, partner, or front man for bin Laden. See id. ¶ 66. These claims, which were made on condition that the identity of their sources not be disclosed, were made in conscious or reckless disregard of the truth. See id. ¶ 105. Among other things, Mr. Idris maintains a residence and conducts business in Egypt, which would not be possible if the government believed that he had any ties to the terrorist organizations that were responsible for the assassination of Anwar Sadat. See id. ¶ 68. Moreover, when the United States froze Mr. Idris’ assets under the Terrorism Sanction Regulations on grounds of association with terrorism, and Mr. Idris challenged that action before this Court, the United States declined to defend its actions. See id. ¶¶ 69-73.

Plaintiffs’ Attempts to Seek Redress — In July 2000, Plaintiffs submitted an administrative claim under the FTCA to the Central Intelligence Agency and filed a takings suit in the United States Court of Federal Claims. See Complaint ¶ 85; Notice of Filing, April 17, 2001. The government has opposed the takings suit, and in March 2001 the CIA denied the administrative claim. See Complaint ¶ 87. Accordingly, in April, plaintiffs filed this lawsuit.

In this suit, plaintiffs bring four claims. Two focus upon the negligent analysis of the soil sample and the conclusion that the El-Shifa plant was involved in chemical weapons production leading to the destruction of the plant. In the first count of the complaint, plaintiffs seek damages based upon the government’s negligence, see Complaint ¶¶ 88-94, and in the second, plaintiffs seek damages for causing an unauthorized and unjustified trespass under the FTCA, see id. ¶¶ 95-100. The third count of the complaint focuses upon the government’s efforts to falsely link Mr. Idris with international terrorism and seeks a declaration that he was defamed as well as { p.8 } an order requiring the United States to retract statements associating either Mr. Idris or the El-Shifa plant with terrorism. See id. ¶¶ 101-06 and p.31. Finally, the complaint seeks a declaration that the attack on the plant violated the law of nations. See id. ¶¶ 108-16 and p.31.

Standard of Review

In reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a court must accept the plaintiff’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. See, e.g., Sanders v. Veneman {27kb.pdf}, 131 F. Supp. 2d 225, 228 (D.D.C. 2001). The complaint should not be dismissed for lack of subject matter jurisdiction unless it appears beyond a doubt that the plaintiff can prove no set of facts consistent with those allegations that would entitle the plaintiff to relief. See, e.g., Richardson v. United States {24kb.html/txt, 21kb.txt}, 193 F.3d 545, 549 (D.C. Cir. 1999). Although plaintiffs generally bear the burden of establishing subject matter jurisdiction, the government bears the specific burden of proving the applicability of the exceptions to the FTCA’s waiver of immunity. See, e.g., Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992). In addition, the court of appeals requires that “plaintiffs be given an opportunity for discovery of facts necessary to establish jurisdiction.” Ignatiev, 238 F.3d at 467; see generally Berkovitz v. United States, 486 U.S. 531, 547-48 (1988).

Argument

I.
Plaintiffs’ Claims Are Not Barred by Sovereign Immunity

The government contends that plaintiffs’ claims are all barred by sovereign immunity. That doctrine has however, been repudiated by many and largely undermined through statutes waiving the federal government’s immunity. See, e.g., Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 1027 (4th ed. 1996). Here, plaintiffs’ claims for damages fall within the scope of the waiver in the FTCA, and their claims for { p.9 } declaratory relief fall within the scope of the waiver contained in Section 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702.

A.  Plaintiffs’ Negligence and Trespass Claims Fall within the FTCA’s Waiver of Sovereign Immunity.

Under theories of negligence and trespass, plaintiffs seek damages for the destruction of the El-Shifa plant resulting from the negligent and erroneous determination that the plant was producing materials for chemical weapons. See Complaint ¶¶ 88-100. These claims fall well within the scope of the FTCA’s waiver of sovereign immunity and are not subject to any of the statute’s exceptions. 4 

1.  The FTCA Waives the Government’s Sovereign Immunity Against Plaintiffs’ Damage Claims.

The FTCA generally waives the government’s sovereign immunity against damage claims. It provides that the government “shall be liable ... in the same manner and to the same extent as a private individual under like circumstances....” 28 U.S.C. § 2674. It also provides federal district courts with jurisdiction over claims for damage “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the place where the act or omission occurred.” Id. § 1346(b).

Plaintiffs’ damage claims fall squarely within the scope of this waiver. As those claims are based upon the negligent analysis of the soil sample from near the plant and the erroneous { p.10 } conclusion that the El-Shifa plant was associated with the production of chemical weapons, the claims are clearly based upon alleged negligent or wrongful acts performed by U.S. officials acting within the scope of their employment. Moreover, it is hornbook law that a private person would be liable under analogous circumstances for causing the destruction of property through an a erroneous and unreasonable determination that the property constitutes a public hazard. See, e.g., Dan B. Dobbs, The Law of Torts § 108, at 251 (2001).

In asserting that the FTCA’s waiver of sovereign immunity is inapplicable, the government suggests without explanation or authority that a private person would not be liable for deciding to conduct a missile strike to dampen terrorist activities and contends that D.C. tort law does not provide standards by which to judge the decision to order the bombing of the plant or what the government terms the “spycraft which provided the intelligence upon which the President relied.” Def. Mem. at 16. In fact, however, D.C. law 5  does provide standards by which to judge the challenged conduct. As this Court has recognized, “[t]he law of negligence in the District of Columbia does not acknowledge differing standards of care, but rather requires adherence to a uniform standard of conduct, which is reasonable care under the circumstances.” Bedford v. United States, 950 F. Supp. 4, 7 (D.D.C. 1997) (quotations omitted). Similarly, trespass law recognizes a defense of public necessity. See, e.g., Dobbs, The Law of Torts § 108, at 251. { p.11 }

It makes no difference that D.C. does not have case law imposing liability under precisely identical circumstances. The government is not insulated from suit simply because damage was caused in part by conduct that is uniquely governmental, such as launching cruise missiles. As the Supreme Court recognized nearly fifty years ago, the FTCA waives sovereign immunity when a private individual would be subject to liability “under like circumstances,” 28 U.S.C. § 2674 (emphasis added), not “under the same circumstances.” See Indian Towing Co. v. United States, 350 U.S. 61, 64-65 (1955). Accordingly, government officials engaged in uniquely governmental functions are subject to liability under the FTCA where, as here, private individuals engaging in analogous conduct would be subject to liability under the law of the relevant local jurisdiction. See id.; see generally Lester S. Jayson & Robert C. Longstreth, Handling Federal Tort Claims § 9.08, at 9-206 to 9-207 (2001). 6 

2.  Plaintiffs’ Claims Do Not Fall Within
Any of the Exceptions to the FTCA
.

In addition to arguing that plaintiffs’ damage claims fall outside the scope of the FTCA’s waiver of sovereign immunity, the government also contends that those claims fall within exceptions to that waiver dealing with claims arising in foreign countries, arising out of combatant activities, and based upon the exercise of discretionary functions. See Def. Mem. at 8-15. None of these exceptions are inapplicable here.

a. The Foreign Country Exception.

The foreign country exception provides that the FTCA and its waiver of sovereign immunity shall not apply to “[a]ny claim arising in a foreign country.” 28 U.S.C. § 2680(k). { p.12 } This exception does not apply to plaintiffs’ damage claims because those claims arise out of the government’s negligent handling of the soil sample and resulting targeting of the El-Shifa pharmaceutical plant, all of which occurred primarily, if not exclusively, in the United States.

As both this Court and the court of appeals have recognized, a claim arises for purposes of the foreign country exception where the wrongful or negligent conduct of the government occurred, not where the injury resulting from that conduct is felt. See Sami v. United States, 617 F.2d 755, 762 (D.C. Cir. 1979) (holding that United States may be sued for “acts or omissions occurring here which have their operative effect in another country”); Orkilow v. United States, 682 F. Supp. 77, 87 (D.D.C. 1988) (holding that the FTCA “focuses on the place of the government employee’s act or omission,” not the location of the resulting injuries); see also Wheeler Tarpeh-Doe v. United States, 28 F.3d 120 (D.C. Cir. 1994) (entertaining claim of negligent supervision by State Department officials in the United States of doctor in Liberian embassy). 7 

For example in Sami, 617 F.2d 755, the plaintiff was arrested in Germany by German officials based upon a request from an American Interpol representative allegedly containing negligent and inaccurate statements. See id. at 757-59. When the plaintiff sued for false arrest based upon the misstatements, the government contended that the foreign country exception { p.13 } applied because the arrest occurred in Germany. See id. at 761. The court of appeals disagreed. It held that a claim arises for purposes of the FTCA where the misconduct being challenged occurs. Noting that “the entire scheme of the FTCA focuses on the place where the negligent or wrongful act or omission of the government employee occurred,” the court of appeals reasoned that “the exception for claims arising in a foreign country should be read constantly with the statutory scheme.” Id. at 761-62 (internal citations omitted). Since the conduct challenged by the plaintiff there (conveying inaccurate information to the German authorities) occurred in the United States, the court of appeals held the foreign country exception inapplicable. See id.

The conduct challenged here also occurred in the United States. Plaintiffs have not challenged the authority or propriety of retaliating against the embassy bombings by launching cruise missile attacks on Osama bin Laden and his organization. They are challenging the determination that the soil sample taken from the El-Shifa pharmaceutical plant contained EMPTA and the resulting determination that the plant should be targeted as a chemical weapons facility. Since the negligent testing of the sample and the targeting decision occurred in the United States, under Sami, the claim arises in the United States even though the injury resulting from that misconduct was felt abroad.

In claiming that the foreign country exception applies here, the government does not discuss the conduct challenged in plaintiffs’ damage claims or otherwise address where the claims at issue here arose. Instead, it simply cites to several cases applying the foreign country exception. See Def. Mem. at 15. There is, however, no suggestion that the conduct challenged in those cases occurred in the United States. For example, the government relies heavily on the { p.14 } Saltany case because that case, like this one, involved missile strikes. See id. at 6-7, 15. The resemblance between the cases, however, ends there. There is no suggestion in any of the decisions cited by the government that the plaintiffs’ claims were based upon misconduct that occurred in the United States. Nor, for that matter, was there any analysis of the foreign country exception in those cases. Instead, the district court simply stated in a footnote that the FTCA “expressly preserves the sovereign immunity of the United States for acts of its officials that ... arise in a foreign country,” Saltany v. Reagan, 702 F. Supp. 319, 321 n.4 (D.D.C. 1988), and the court of appeals summarily affirmed “substantially for the reasons stated” in the district court’s order. Saltany v. United States, 886 F.2d 438, 441 (D.C. Cir. 1989). Thus, the government’s claim that the allegations in Saltany were “reasonably {sic: remarkably} similar to those presented here” (Def. Opp. {sic: Mem.} at 6) cannot withstand even the most basic scrutiny. 8 

b.  The Combatant Activities Exception.

The government’s attempt to invoke the combatant activities exception is equally flawed. Arguing that the attack on the El-Shifa plant was a combat mission, the government argues that the exception applies. See Def. Mem. at 13-15. This argument fails for the simple reason that the combatant activities exception applies only during times of war and the United States was not at war at the time the attack took place.

The combatant activities exception applies to “[a]ny claim arising out of combatant activities of the military or naval forces, or the Coast Guard, during time of war.” 28 U.S.C. § 2680(j) (emphasis added). The United States was not, however, at war with Sudan when it attacked the El-Shifa plant. See Complaint ¶ 24. Nor was the United States at war with Osama bin Laden and his terrorist organization. While war can mean “a condition of active antagonism { p.15 } or contention,” The American Heritage Dictionary 1938 (4th ed. 2000), the FTCA plainly did not use the term in this broad, informal sense: among other things, the reference to combatant activities itself indicates a condition of active antagonism. See, e.g., Walters v. Metro. Educ. Enter., Inc., 519 U.S. 202, 209 (1997) (“Statutes must be interpreted, if possible, to give each word some operative effect.”). Instead, the FTCA uses the term “war” in its more technical, legal sense of a “[h]ostile conflict by means of armed forces, carried on between nations, states, or rulers, or sometimes between parties within the same nation or state; a period of such conflict.” Black’s Law Dictionary 1576 (7th ed. 1999). 9  Plainly, however, there was no conflict between the armed forces of nations, states, or rulers at the time of the attack on the El-Shifa plant. To the contrary, the United States was retaliating against Osama bin Laden, a man whom the United States treats as an international criminal, not a belligerent in war time. See Complaint ¶ 22. Thus, by its plain terms, the combatant exception is inapplicable.

The Ninth Circuit’s decision in Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), does not suggest otherwise. The government cites Koohi and other cases for the proposition that the combatant activities exception applies even in the absence of a formal declaration of war. See Def. Mem. at 13-14. While the proposition is correct, it hardly follows that there was a war in 1998 when the El-Shifa plant was attacked. Indeed, in finding that the USS Vincennes shot down an Iranian airbus {500kb.html} in “time of war,” Koohi concluded that the so-called tanker war between the United States and Iran constituted a war for purposes of the FTCA because American armed forces were “engage[d] in an organized series of hostile encounters on a significant scale with { p.16 } the military forces of another nation.” 976 F.2d at 1335; see also Clark v. United States, 974 F. Supp. 895 (E.D. Tex. 1996) (finding Desert Storm to be a war); Rotko v. Abrams, 338 F. Supp. 46 (D. Conn. 1971) (Vietnam), aff’d, 455 F.2d 992 (2d Cir. 1972). As there was no encounter of military forces between nations at the time of the El-Shifa attack, under the government’s own authority, the combatant activities exception is inapplicable.

c.  Discretionary Functions Exception.

The government also argues that plaintiffs’ damage claims are barred by the discretionary functions exception. See Def. Mem. at 8-13. Those claims, however, challenge the negligent and reckless analyses of the soil sample and other evidence that led the government to conclude that the El-Shifa plant was producing materials for chemical weapons and to target the plant for destruction. Since that determination was factual in nature and, in any event, did not involve the exercise of any policy judgment, it is not protected by the discretionary functions exception. Moreover, the government’s claim that even such objective laboratory analysis falls within the discretionary exception because it is “inextricably tied” to the discretionary decision to retaliate against the embassy bombings is both inconsistent with the Supreme Court’s analysis of this exception and based on unsupported factual premises which plaintiffs must be permitted to test through discovery.

The discretionary function exception excludes from the FTCA’s waiver of sovereign immunity any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). The purpose of this exception is to “prevent judicial { p.17 } second-guessing of legislative and administrative decisions grounded in social, economic, and public policy.” Berkovitz v. United States, 486 U.S. 531, 537 (1988). Accordingly, the exception has not been interpreted to immunize all conduct that involves discretion. Instead, in keeping with its purpose, the discretionary functions exception has been interpreted to cover only actions that involve the “permissible exercise of policy judgment.” Id.

In employing the exception, courts apply a two-part test to the specific actions challenged in the case. See, e.g., Berkovitz, 486 U.S. at 536-37. First, courts “consider whether the action is a matter of choice for the acting employee” because “conduct cannot be discretionary unless it involves an element of judgment or choice.” Id. at 536. Thus, for example, the exception will not apply where “a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow” because under those circumstances “the employee has no rightful option but to adhere to the directive.” Id. Second, courts looks at whether the judgment in question is “based on considerations of public policy.” Id. at 537; see also United States v. Gaubert, 499 U.S. 315, 323 (1991) (“[W]hen properly construed, the [discretionary function] exception protects only governmental actions and decisions based on considerations of public policy.”) (quotations omitted). Thus, for example, the discretionary function exception does not apply to a determination that “involves the application of objective scientific standards” even though that determination may involve some discretion because the discretion does not involve the weighing of social, economic, or other public policy judgment. Berkovitz, 486 U.S. at 545; see also Cope v. Scott, 45 F.3d 445, 452 (D.C. Cir. 1995) (noting that application of “objective scientific principles” does not involve public judgment for purposes of the discretionary functions exception). { p.18 }

Because both parts of this test are factual in nature, it is often impossible to determine whether the discretionary functions exception applies on a motion to dismiss. It may, for example, be unclear whether the official in question had any discretion to exercise because it is unclear whether the official was acting pursuant to agency rules and policies. Moreover, where an official does enjoy some discretion, it may be unclear whether that discretion involves any public policy considerations. Accordingly, application of the discretionary functions exception often must await development of the relevant facts through discovery. See, e.g., Berkovitz, 486 U.S. at 547-48; Ignatiev v. United States {14kb.html/txt, 12kb.txt}, 238 F.3d 464, 466-67 (D.C. Cir. 2001); Sami, 617 F.2d at 767 & n.20.

The government’s invocation of the discretionary function exception here is at best premature. In first place, ‘it is unclear whether the testing of the soil sample involved any exercise of discretion at all. Although the government asserts that the “sifting of evidence, the weighing of its significance, and the myriad other decisions inherent in gathering and interpreting intelligence plainly involve elements of judgment and choice,” Def. Mem. at 12 (quotation omitted), it does not offer any evidence supporting this assertion. Presumably, the soil sample was referred to a laboratory for standard testing according to some checklist or other well-established protocol. Cf. Appelton v. United States, 69 F. Supp. 2d 83, 92-94 (D.D.C. 1999). In addition, the determination that the El-Shifa plant was involved in the production of chemical weapons may have been made pursuant to some pre-existing guidelines or regulations that precluded any exercise of judgment in the analysis. See Berkovitz, 486 U.S. at 536.

Even more fundamentally, there is no reason to think that the testing or targeting procedure involved the exercise of any social, economic, or other public policy judgment. The process of testing ground soil is purely factual in nature, see Complaint ¶ 90, and it was { p.19 } presumably performed pursuant to “objective scientific standards” rather than public policy considerations. Berkovitz, 486 U.S. at 545. Similarly, the overall analysis that led the government to conclude that the plant was involved in chemical weapons production was presumably based upon empirical, not policy, factors. Nor does the government suggest otherwise. Instead, it simply states that the determinations in question were “undertaken for policy reasons,” not that they actually involved policy judgments. Def. Mem. at 12 (emphasis added). Moreover, even if the government had contended that these determinations involved policy judgments, this Court could not adopt those contentions at the pleadings stage in the face of an allegation in the complaint that the officials making the determination in question were “not exercising any policy discretion or policy judgment.” Complaint ¶ 90. At a minimum, plaintiffs must “be given an opportunity for discovery of facts necessary to establish jurisdiction prior to decision of a 12(b)(1) motion” for dismissal based upon the discretionary functions exception. Ignatiev, 238 F.3d at 467.

The court of appeals’ recent decision in Sloan v. United States Dep’t of Housing & Urban Dev. {37kb.html/txt, 31kb.txt}, 236 F.3d 756 (D.C. Cir. 2001), does not suggest otherwise. That case involved very different facts and circumstances. The plaintiff in that case was a contractor who had been hired to perform interior demolition in a housing project in Pennsylvania. After a HUD auditor found that the contractor was using demolition techniques that were unacceptable in a project involving lead-based paint and improperly dumping plaster debris, see id. at 758, HUD suspended the contractor. See id. An administrative judge found, however, that the auditor had erred in finding that the project involved lead-based paint and, because the improperly dumped debris did not pose an environmental hazard, terminated the suspension. See id. at 758-59. The contractor then sued under the FTCA for money damages, alleging, among other things, that the auditor had { p.20 } negligently informed HUD that the project involved lead-based paint and thereby caused its suspension. See id. at 759. Applying the discretionary functions exception, the court of appeals rejected the claim on the ground that it was “inextricably tied to the discretionary, quasi-prosecutorial decision to suspend plaintiffs from government contracting” and that, in any event, the auditor exercised policy judgment in determining that there was lead-based paint at the project. See id. at 762, 764-65.

In so doing, the court of appeals did not and could not hold that the discretionary functions exception covers all conduct that is causally related to a discretionary act (which almost all government conduct is in some way). As the Supreme Court has recognized, in applying the discretionary functions exception, courts normally concentrate on the particular conduct challenged even if it either implements or leads up to a discretionary function. See, e.g., Berkovitz, 486 U.S. at 540-48 (release of lot of polio vaccine analyzed independent of decision to permit use of such vaccines); United Cook Inlet Drift Ass’n v. Trinidad Corp. (In re the Glacier Bay), 71 F.3d 1447, 1451 (9th Cir. 1997) (performance of hydrographic study examined separately from making of nautical charts based upon the study); Appley Bros. v. United States, 1 F.3d 720, 722-27 (8th Cir. 1993) (failure to investigate compliance with citation reviewed independently from later decision to revoke license); Payton v. United States, 679 F.2d 475, 481-83 (5th Cir. 1982) (failure to supply psychiatric records and other information analyzed separately from decision to release psychotic prisoner).

For example, in Berkovitz, the plaintiffs sued for damages suffered as a result of a polio vaccine, alleging that the government (a) improperly licensed the vaccine that the injured plaintiff received by (i) failing to require the submission of safety data, (ii) failing to determine whether the vaccine complied with regulatory standards, (iii) approving it even though the { p.21 } vaccine did not comply with those standards, or (iv) incorrectly determining whether those standards were satisfied, and (b) improperly releasing the lot with the vaccine that the injured plaintiff received. See 486 U.S. at 540-48. Rather than treating these claims as part of a broader, discretionary decision to approve production of the vaccine, the Supreme Court analyzed each action (and sub-action) challenged by the plaintiffs individually, finding some protected, others not, and remanding for further fact finding on still others. See id.

Far from suggesting the sweeping conclusion that all conduct relating to a discretionary decision falls within the discretionary functions exception, Sloan simply recognized that not all conduct preceding a discretionary decision can be separated from the decision. Relying upon its prior decision in Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983), the court of appeals treated the suspension decision in Sloan as a decision to prosecute and found that there was “‘no meaningful way in which the allegedly negligent investigatory acts could be considered apart from the totality of the prosecution.’” Sloan, 236 F.3d at 761 (quoting Gray, 712 F.2d at 516). Prosecutorial and quasi-prosecutorial decisions such as those of the auditors in Sloan are, however, a special case deserving special protection. In the first place, suits against prosecutors and their administrative counterparts brought by the embittered subjects of their activities can “be expected with some frequency” and often “pose a substantial danger of liability even to honest prosecutors,” which is why prosecutors are at forded absolute immunity from suits against them personally. Imbler v. Pachtman, 424 U.S. 409, 425 (1976). Further, prosecutors and agency decision makers do not rely uncritically on conclusions reached in investigations performed for them; instead, they review the strength and weaknesses of the evidence supporting those conclusions before deciding whether to prosecute. See 1 ABA Standards for Criminal Justice § 3.3.1(a) (2d ed. 1980). Thus, it makes good sense to presume that factual investigations { p.22 } leading up to a prosecution are inextricably intertwined with the discretionary decision to initiate prosecution resulting from them.

Gray did not, however, suggest that this same presumption should be automatically applied outside the prosecutorial context. To the contrary, Gray relied upon the Fifth Circuit’s en banc decision in Payton v. United States, which rejects such a wooden rule. See Gray, 712 F.2d at 516. In the Payton case, the Fifth Circuit applied the discretionary functions exception to a series of challenges to the decision to release a prisoner who brutally raped and murdered three women while on parole. See Payton, 679 F.2d at 480-84. Although the court of appeals found that some of the alleged challenges, such as the failure of the Parole Board to gather the prisoner’s mental health records, could not be separated from the discretionary decision to release the prisoner, see id. at 481-82, it held that the failure of the Bureau of Prisons to supply those records to the Board and, even more pertinently here, the failure of the Bureau to ascertain for the Board the scope of the prisoner’s illness could be meaningfully separated from the ensuing decision to grant parole. See id. at 482-83. Thus, the question whether conduct preceding a decision is inextricably intertwined with that decision depends upon the nature of the function and the particular facts of each case. 10  { p.23 }

There is no basis for the government’s assumption here that the discretionary decision to bomb the El-Shifa plant is inextricably intertwined with the analysis of the soil sample or the determination that the plant was involved in chemical weapons production. First, it is possible that the President made the decision to retaliate against Osama bin Laden, identified criteria for selecting targets for retaliation, and then left the selection of targets to his subordinates to implement. If that were the case, then the conduct implementing or carrying out this instructions would be clearly separable and not protected by the discretionary nature of the prior policy judgment. See, e.g., Berkovitz, 486 U.S. at 546-47; Indian Towing Co., 350 U.S. at 64.

Second, even if the El-Shifa plant was selected as a target before the decision to retaliate, the selection would only have been “inextricably intertwined” with the decision under Sloan if the President, like a prosecutor, reevaluated the evidence supposedly establishing the plant’s involvement in chemical weapons production as part of the decision. Where a government decision maker simply relies upon a conclusion reached by another, that subsidiary conclusion is separable from the ultimate decision and must be analyzed independently for purposes of the discretionary function exception. See, e.g., Trinidad Corp., 71 F.3d at 1451. Particularly where, as is likely here, the decision maker lacks the scientific or other technical knowledge to evaluate erroneous fact determinations by another government agency, it makes no sense to shield culpable misconduct from review simply because it causes a mistaken discretionary judgment.

Thus, whether the negligent conclusion that the El-Shifa plant produced chemical weapons and was affiliated with terrorism is inextricably intertwined with the decision to retaliate against the embassy bombings depends upon specific facts that have not yet been developed. Accordingly, the government’s reliance upon Sloan is at best premature, and its { p.24 } claim that sovereign immunity bars negligence and trespass claims must at this stage at least be rejected.

B.  Plaintiffs’ Defamation and Law-of-Nations Claims Fall within the Scope of the Waiver of Sovereign Immunity in the APA.

In addition to the claims for negligence and trespass, plaintiffs also bring claims for defamation and violation of the law of nations. See Complaint ¶¶ 101-16. Because they seek declarations rather than damages, these claims are not covered by the waiver of sovereign immunity in the FTCA. There is, however, a waiver of sovereign immunity in the Administrative Procedure Act that covers all claims based upon agency action “seeking relief other than money damages.” 5 U.S.C. § 702. The defamation and law-of-nations claims fall within the scope of this waiver.

Section 702 of the Administrative Procedure Act provides:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.

5 U.S.C. § 702. As plaintiffs’ defamation and law-of-nations claims both seek a declaration, which is “relief other than money damages,” and both are based upon conduct of officers or employees acting within their official capacity, they both fall squarely within the scope of Section 702’s waiver of sovereign immunity.

The government contends that the waiver of sovereign immunity in Section 702 is inapplicable because plaintiffs do not have a claim for relief under the APA. See Def. Mem. at 20-28. Whether or not that is true, plaintiffs’ “nonstatutory” claims for declaratory relief still fall within the scope of the Section 702’s waiver. There is nothing in the language of the waiver suggesting that it applies only to claims under the APA. Moreover, the legislative history clearly { p.25 } indicates that Congress intended the waiver to extend to claims not brought under that statute: indeed, the Senate Report states that the time has “now come to eliminate the sovereign immunity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity” S. Rep. No. 94-996, at 7-8 (1976) (emphasis added).

Accordingly, it is well-settled that Section 702’s waiver “applies to any suit.” Alabama v. Bowsher, 734 F. Supp. 525, 533 (D.D.C. 1990), aff’d, 935 F.2d 332 (D.C. Cir. 1991). The court of appeals has applied Section 702 to nonstatutory claims against the government on several different occasions. See Nat’l Ass’n of Counties v. Baker, 842 F.2d 369, 373 (D.C. Cir. 1988); Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243, 244 (D.C. Cir. 1981); Schnapper v. Foley, 667 F.2d 102, 108 (D.C. Cir. 1981). Other courts of appeals have done so as well, 11  and any doubts about “whether section 702 acts as a waiver to actions other than those brought under the APA w[ere] definitely put to rest by the Supreme Court in Bowen v. Massachusetts, [487 U.S. 879 (1987)],” Bowsher, 734 F. Supp. at 533, which entertained a suit under the Medicaid Act, 42 U.S.C. § 1396b(a), based upon the waiver of sovereign immunity in Section 702 of the APA. See Bowen, 487 U.S. at 891-901; see also Fallon et al., Federal Courts 1037 (“Though codified in the APA, the waiver applies to any suits, whether under the APA, § 1331, § 1336, or { p.26 } any other statute.”). Thus, plaintiffs’ defamation and law-of-nature claims clearly are not barred by sovereign immunity.

II.
The Political Question Doctrine Does Not Bar Consideration
of Plaintiffs’ Claims
.

In addition to invoking sovereign immunity, the government also asserts that the political question doctrine bars consideration of plaintiffs’ claims. See Def. Mem. at 28-30. As the government’s own authority recognizes, however, “[i]n tort cases brought against the government” the concerns that underlie the political question doctrine are “addressed through recognition of a ‘discretionary function’ exception to government liability.” Tiffany v. United States, 931 F.2d 271, 276 (4th Cir. 1991). As a consequence, there is little reason to believe that where, as here, the discretionary functions exception is inapplicable, the political question doctrine will nonetheless apply, and the government does not even demonstrate otherwise.

A.  The Political Question Doctrine.

The political question doctrine is “a narrow one.” Ramirez v. Arellano v. Weinberger, 745 F.2d 1500, 1514 {500 kb} (D.C. Cir. 1984) (en banc), vacated on other grounds, 471 U.S. 113 (1985). As the Supreme Court has recognized, “not every matter touching on politics is a political question.” Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 229 (1986); see also Ukrainian-American Bar Ass’n, Inc. v. Baker, 893 F.2d 1374, 1380 (D.C. Cir. 1990) (“That a claim implicates important governmental policies ... does not necessarily mean that the political question doctrine precludes the judiciary from hearing it.”). To the contrary, courts routinely consider politically-charged cases, see, e.g., Bush v. Gore, 531 U.S. 98 (2000); New York Times v. United States, 403 U.S. 713 (1971); United States v. Barry, 961 F.2d 260 (D.C. Cir. 1992), as well as cases involving sensitive military and foreign policy matters, see, e.g., { p.27 } Dames & Moore v. Regan, 453 U.S. 654 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

The political question doctrine is focused upon whether the issues raised by a case require consideration of “policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling, 487 U.S. at 230. Accordingly, the doctrine does not prohibit courts from reviewing conduct that the Constitution commits to the Executive or Legislative branches; it prohibits courts from deciding issues for which “the Constitution has given one of the political branches final responsibility.” Nixon v. United States, 506 U.S. 224, 240 (1993) (White, J., concurring) (emphasis added). Thus, for instance, the political question doctrine bars courts from determining whether a foreign government should be recognized because the Constitution commits resolution of that issue to the Executive Branch, see, e.g., Guar. Trust Co. v. United States, 304 U.S. 126, 137 (1938), and whether a state government is legitimate because the Constitution assigns that determination to Congress, see, e.g., Luther v. Borden, 48 U.S. (7 How.) 1 (1848).

Although the “dominant consideration in any political question inquiry is whether there is a textually demonstrable constitutional commitment of the issue to a coordinate political department,” Lamont v. Woods, 948 F.2d 825, 831 (2d Cir. 1991), other factors are considered in determining whether to apply the doctrine as well. The most well-known list, quoted by the government on page 29 of its memorandum, is from Justice Brennan’s seminal decision in Baker v. Carr, 369 U.S. 186 (1962), which a court of appeals has distilled to three inquiries:

(i)  Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move { p.28 } beyond areas of judicial expertise? (iii) Do prudential considerations counsel against intervention?

Ramirez, 745 F.2d at 1511 (quotation omitted). 12 

Because the political question doctrine is a doctrine of “‘political questions,’ not one of political cases,” a court applying the doctrine must engage in a “discriminating analysis of the particular question posed.” Baker, 369 U.S. at 211. Such an analysis requires an examination of “the particular question posed in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in the specific case, and of the possible consequences of judicial action.” Id. at 211. Moreover, like the discretionary function exception, the political question doctrine cannot always be applied at the pleadings stage but must sometimes await discovery and development of the facts. See, e.g., Ramirez, 745 F.2d at 1513 (holding it “premature to conclude that essential evidence is undiscoverable merely on the basis of the complaint and related declarations”); see also Ukranian-American Bar Ass’n., 893 F.2d at 1380 (holding that political question doctrine does not bar suit even though it may “foreclose certain forms of relief”).

B.  The Government Has Not Shown that This Case
Raises Any Political Questions

Although the claims before this Court touch upon sensitive topics that the government would, for obvious reasons, prefer not to revisit, the government has not shown that this case raises any political questions. Plaintiffs are not asking this Court to review the appropriateness of any past or current Executive Branch policy concerning foreign relations or use of the military. Their claims do not challenge the constitutional power of the President to retaliate { p.29 } against the embassy bombings or to use armed forces to destroy chemical weapons facilities. Moreover, plaintiffs do not ask the Court to place any restrictions on the constitutional powers of the Executive Branch but simply to exercise its own constitutional role to determine whether they have been wrongly subjected to the government’s attack on terrorism by reckless or negligent acts of government employees or agents. The Court is asked by these claims only to determine whether a pharmaceutical plant was mistakenly identified as a chemical weapons facility as a result of negligent analysis of a soil sample and other factual evidence, whether Mr. Idris was recklessly defamed after the bombing, and whether the law of nations was violated by the failure to provide compensation for the mistaken targeting of the plant. This Court is clearly competent to consider and resolve such issues. Moreover, the remedies that plaintiffs seek in the form of compensatory damages, declaratory relief and a retraction of misstatements would not interfere with the Executive Branch functions. Thus, this case clearly falls within the competence of this Court to consider.

1.  Textually Demonstrable Commitment

Although the first and most important consideration under the political question doctrine is the presence or absence of a “textually demonstrable constitutional commitment of the issue to a coordinate political department,” Baker, 369 U.S. at 217, the government’s brief neither identifies the specific issues raised by plaintiffs’ claims nor engages in the “close textual analysis of specific provisions of the Constitution” necessary to establish that this issue is committed to the Executive Branch. Ramirez, 745 F.2d at 1511. Moreover, even if the government could show that plaintiffs have raised questions that require resolution of issues relating to foreign intelligence, it could not show a “textually demonstrable constitutional commitment” of those questions to the President. Although Article I expressly assigns certain foreign policy and military decisions to the President, it does not specifically commit foreign { p.30 } intelligence gathering and assessment to the exclusive discretion of the Executive Branch. To the contrary, the Constitution is silent on intelligence and national security matters. See, e.g., United States v. American Tel. & Tel. Co., 567 F.2d 121, 128 (D.C. Cir. 1977). Accordingly, far from being the exclusive province of the Executive Branch, foreign intelligence gathering is subject to congressional regulation, 50 U.S.C. §§ 1821-26, and is in fact supervised by the Foreign Intelligence Surveillance Court. See id. § 1822.

Nor does it make any difference that plaintiffs’ claims touch more generally upon foreign and military affairs. As the Supreme Court has repeatedly stressed, it is “‘error to suppose that every case which touches foreign relations lies beyond judicial cognizance.’” Japan Whaling, 478 U.S. at 229-30 (quoting Baker, 369 U.S. at 211). Moreover, the government’s own authority recognizes that a lawsuit is not “rendered judicially unmanageable because the challenged conduct took place as part of an authorized military operation.” Koohi, 976 F.2d at 1331; see also Rappenecker v. United States, 509 F. Supp. 1024, 1028 (N.D. Cal. 1980) (“Not every question involving the exercise of [the President’s powers as commander in chief] is necessarily non-justiciable as a political question.”).

For example, in Koohi, the plaintiffs sought to recover damages for the mistaken destruction of an Iranian passenger airline {500kb.html} by an American naval cruiser engaged in hostilities in the Persian Gulf. See 976 F.2d at 1330-31. Although the plaintiffs’ claims for negligent operation of the ship and design defects in the missile system used by the ship obviously touched upon sensitive foreign and military affairs, the court of appeals found that the case did not raise any legal questions textually committed to the Executive Branch and rejected the government’s invocation of the political question doctrine. See id. at 1331-32. The court of appeals has similarly refused to apply the political question doctrine merely because a question touches upon { p.31 } foreign military operations. See Ramirez, 745 F.2d at 1511-15. Similarly, the first — and most important — political question inquiry does not support the government’s invocation of the doctrine here. 13 

2.  Judicial Competence

The second and third factors identified in Baker are the “lack of judicially discoverable and manageable standards” and the “impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion.” Baker, 369 U.S. at 217. In invoking these factors, the government claims that there are “no judicially discoverable and manageable { p.32 } standards by which to judge President Clinton’s decision to destroy the El-Shifa plant or his explanation.” Def. Mem. at 30. Plaintiffs’ claims do not, however, require this Court to judge that decision. Instead, plaintiffs’ claims raise issues concerning whether the soil sample was analyzed and the plant determined to be involved in chemical weapons production negligently, whether Mr. Idris was defamed with conscious or reckless disregard for the truth, and whether the government’s actions violated the law of nations. This Court is more than equipped to handle such inquiries. See, e.g., Koohi, 976 F.2d at 1331 (noting that “government operations are a traditional subject of damage actions in the federal courts” and that “federal courts are capable of reviewing military decisions); see generally Laird v. Tatum, 408 U.S. 1, 16 (1972). Moreover, the remedies sought — damages and declaratory relief — are also well within the competence of the courts to administer. See, e.g., Koohi, 976 F.2d at 1332 (noting that “[d]amage actions are particularly judicially manageable”); see also Powell v. McCormack, 395 U.S. 486, 517-18 (1969) (noting that requests for declaratory relief avoid difficulties raised by injunctions and other coercive relief against the other branches).

It makes no difference that consideration of plaintiffs’ claims may touch upon conduct that the government deems confidential. See Def. Mem. at 31 (discussing Chicago & Southern Airlines v. Waterman S.S. Corp., 333 U.S. 103 (1948)). As the court of appeals observed in another case dealing with a challenge to foreign military operations, “[e]videntiary privileges turn on the facts, such as the harm that might flow from disclosure of particular communications, which are not yet part of the record in the instant case.” Ramirez, 745 F.2d at 1513. Consequently claims of executive privilege “cannot justify squelching plaintiffs’ complaint prior { p.33 } to any factfinding.” Id. Similarly, while the government’s intelligence assessments may be entitled to some level of deference, that fact does not render any issues in the case nonjusticiable; instead, the level of deference goes to the merits of those issues. See, e.g., Dep’t of Commerce v. Montana, 503 U.S. 442, 456-59, 464 (1992) (refusing to find method of apportioning congressional districts a political question, but noting that the Constitution entitles Congress to a “measure of discretion” in selecting that method); Ramirez, 745 F.2d at 1514-15 (discussing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)).

3.  Prudential Considerations

The final three Baker factors deal with prudential considerations such as the risk of expressing disrespect for a coordinate branch, the “unusual need for unquestioning adherence to a political decision already made,” and the “potentiality for embarrassment from multifarious pronouncements.” Baker, 369 F.2d at 217. The government asserts that granting plaintiffs any relief “would be a remarkable reversal in American foreign policy” and that review of matters relating to foreign affairs and military conduct create a potential for embarrassment and friction Def. Mem. at 31-34. The government does not, however cite any authority even remotely suggesting that the potential for such embarrassment is so extraordinary in this case that it would justify invocation of the political question doctrine in the absence of any of the separation-of-powers and functional considerations at the core of the doctrine. To the contrary, none of the cases cited by the government rely solely upon prudential considerations. See Aktepe v. United States, 105 F.3d 1400, 1403-04 (11th Cir. 1997) {16kb.html, 22kb.pdf} (finding textual commitment and lack of judicially manageable standards); Smith v. Reagan, 844 F.2d 195, 198-200 (4th Cir. 1988) { p.34 } (same); Chaser Shipping Corp. v. United States, 649 F. Supp. 736, 738-39 (S.D.N.Y. 1986) (judicially manageable standards), aff’d, 819 F.2d 1129 (2d Cir. 1987). 14 

This omission is not surprising. As the Supreme Court has recognized, if the political question doctrine applied any time there was a potential for embarrassing another branch “every judicial resolution of a constitutional challenge to a congressional enactment would be impermissible.” United States v. Munoz-Flores, 495 U.S. 385, 390 (1990). Nevertheless, courts are “routinely deciding cases that touch upon or even have a substantial impact on foreign and defense policy.” Dellums v. Bush {66kb.html, 44kb.pdf}, 752 F. Supp. 1141, 1146 (D.D.C. 1990); DKT Mem’l. Fund, Ltd. v. Agency for Int’l Dev., 810 F.2d 1236, 1238 (D.C. Cir. 1987) (noting that “claims alleging non-compliance with the law are justiciable, even though the limited review that the court undertakes may have an effect on foreign affairs”). Moreover, the government’s concerns about embarrassment are especially unpersuasive here in light of the withering criticism that those determinations have already received and the government’s vacillations concerning some determinations and public abandonment of others. See Complaint ¶¶ 29, 49-62. { p.35 }

Conclusion

For the reasons stated above, defendant’s motion to dismiss should be denied.

Respectfully submitted,

Signature: Timothy J. Finn




{Signature}

Stephen J. Brogan (No. 939082)
Timothy J. Finn (No. 963751)
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

Dated: June 12, 2001 { p.36 }

______________________

Certificate of Service

I hereby certify that on this 12th day of June, 2001, I caused a copy of the foregoing Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Dismiss, as well as a proposed order denying that motion, to be served via first-class U.S. mail, postage prepaid, on the following individuals:

Wilma Lewis, Esq.
U.S. Attorney for the District of Columbia
555 4th Street, N.W.
Washington, D.C. 20001

Paul Figley, Esq.
United States Department of Justice
P.O. Box 888
Ben Franklin Station
Washington, D.C. 20044

Signature: Daniel H. Bromberg

 

{Signature}

{ Daniel H. Bromberg }

WA-1251028V5

Footnotes

Each footnote appears entirely on the same page with its text reference, except where an embedded page reference marks a carry-over, to the foot of the next page (n.3, n.7, n.9, n.13).  CJHjr

 1  The government’s description of the facts consists primarily of a quotation from letters sent by President Clinton on the day of the attack, followed by conclusory references to approximately a dozen of the 116 paragraphs in the detailed complaint filed by plaintiffs. See Def. Mem. at 3-5.

 2  In opposing plaintiffs’ request for leave to conduct limited foreign discovery, the government advanced a decidedly different view. Denying that the bin Laden embassy bombing trial in New York had any connection with this case — even though this trial exhaustively reviewed the bin Laden organization — the government claimed it had no head start as a result of that trial in discovering facts relating to this case. See Def. Opp. to Pl. Mot. for Leave to Commence Foreign Discovery at 2 n.3.

 3  Though the government relied primarily on the soil sample, government officials also claimed that the plant did not produce any commercial products, that it was protected by unusual security measures, and that it was associated with Osama bin Laden. See id. ¶¶ 35, 39, 43. These conclusions were also negligent and erroneous, see id. ¶ 37 (noting that the conclusion concerning the plant’s commercial products was based upon the fact that an El-Shifa website did not list any commercial products); id. ¶¶ 42, 79 (noting that satellite imagery of the plant did not { p.7 } reveal any unusual security measures), and the government has already effectively admitted that two of these conclusions were incorrect. See id. ¶¶ 38, 45-46, 57, 60-62.

 4  The government begins its discussion of the FTCA by claiming that limitations on waivers of sovereign immunity must be “strictly observed.” Def. Mem. at 5 (quotation omitted). Citing one of the very authorities upon which the government relies, the Supreme Court more than seven years ago specifically rejected a strict construction approach to the FTCA in construing one of the same exceptions invoked by the government here. See Smith v. United States, 407 U.S. 197, 203 (1993).

 5  For purposes of the complaint and this motion, plaintiffs have assumed that the testing of the soil sample and determination that the plant was involved in chemical weapons production occurred in D.C. (where the defamation of Mr. Idris occurred) because plaintiffs have no reason to believe it occurred elsewhere. This assumption may be altered as plaintiffs learn more of the conduct at issue here, which may in turn require application of the law of a different jurisdiction. See 28 U.S.C. § 1346(b). In any event, this Court can exercise pendent venue over the negligence and trespass claims based upon the defamation claim.

 6  The court of appeals’ decision in Jayvee Brand, Inc. v. United States, 721 F.2d 385 (D.C. Cir. 1983), does not suggest otherwise. Although the government asserts that Jayvee held that the FTCA’s waiver inapplicable to all “matters pertinent only to the national government,” Def. Mem. at 17, the case in fact held only that the waiver is inapplicable to claims based upon “quasi-legislative or quasi-adjudicative action.” Jayvee, 721 F.2d at 390.

 7  Other courts have reached the same conclusion. See, e.g., Couzado v. United States {30kb.txt, 36kb.pdf}, 105 F.3d 1389 (11th Cir. 1997) (holding that the foreign country exception did not bar the FTCA claim of plaintiffs wrongfully arrested by Honduran authorities because plaintiffs had alleged that the arrest resulted from negligent acts by DEA agents in the United States); Leaf v. United States, 588 F.2d 733, 735 (9th Cir. 1978) (“[A] tort claim against the United States under Section 2680(k) ‘arises’ where the negligent acts occur, if those acts proximately cause damage. The place of the accident, loss, or injury, therefore is not necessarily controlling.”); Glickman v. United States, 626 F. Supp. 171 (S.D.N.Y. 1985) (holding plaintiff drugged in Paris as part of CIA program originating in the United States was not precluded from pursuing FTCA claim); see generally Kurtis A. Kemper, What Constitutes “Claim Arising in a Foreign Country” under 28 { p.13 } U.S.C.A. § 2680(k), Excluding Such Claims from Federal Torts Claim Act, 158 A.L.R. Fed. 137 § 2 (1999).

 8  The government’s reliance on Saltany’s application of the combatant activities and discretionary functions exceptions (see Def. Mem. at 8, 13, 15) is similarly cavalier.

 9  See also 19 Oxford English Dictionary 887 (2d ed. 1989) (defining war as “[h]ostile contention by means of armed forces, carried on between nations, states, or rulers, or between parties in the same nation or state; the employment of armed forces against a foreign power, or against an opposing party in the state.”); Webster’s Third New International Dictionary 2575 { p.16 } (1979) (defining war as “a state of usu[ally] open and declared armed hostile conflict between political units (as states or nations)”).

 10  Besides Sloan and Gray, the government cites three other cases in support of its separability argument. See Def. Mem. at 20-21. One of these cases discusses the FTCA only by analogy. See Boyle v. United Technologies Corp., 487 U.S. 500, 504-11 (1988) (finding state law claim against military contractor preempted). Another case, which like Gray arose out of a out of a criminal prosecution, expressly recognizes the fact-specific nature of the separability issue. See General Dynamics, Inc. v. United States {54kb.html, txt}, 139 F.3d 1280, 1284-85 {9th Cir. 1998} (discussing United Cook Inlet Drift Ass’n v. Trinidad Corp.). And the remaining case was decided by a sharply divided Third Circuit sitting en banc, with the six dissenting judges getting the better of the argument. See Fisher Bros. Sales, Inc. v. United States {49kb.txt, 49kb.txt, 52 kb doc}, 46 F.3d 279, 290-91 (3d Cir. 1995) (en banc) (Roth, J., dissenting). Thus, there is little support for the sweeping argument advanced by the government.

 11  See, e.g., Jaffee v. United States, 592 F.2d 712, 718 (3d Cir. 1979) (“[S]ection 702, when it applies, waives sovereign immunity in ‘nonstatutory’ review of agency action under 1331.”); Sheehan v. Army and Air Force Exch. Serv., 619 F.2d 1132, 1139 (5th Cir. 1980) (holding “that Congress did intend to waive the defense of sovereign immunity for nonstatutory review under section 1331”); Warin v. Dep’t of Treasury, 672 F.2d 590, 591 (6th Cir. 1982) (“We find that the amended 5 U.S.C. § 702 waives the sovereign immunity defense in actions for nonmonetary relief under Section 1331.”); Red Lake Band of Chippewa Indians v. Barlow, 846 F.2d 474, 476 (8th Cir. 1988) (“[T]he waiver of sovereign immunity contained in section 702 is not dependent on application of the procedures and review standards under the APA.”); The Presbyterian Church v. United States, 870 F.2d 518, 525 (9th Cir. 1989) (“Nothing in the language of the amendment [and the legislative history] suggests that the waiver of sovereign immunity is limited to claims challenging conduct falling in the narrow definition of ‘agency action.’”).

 12  Because “political questions are not justiciable primarily because of the separation of powers within the Federal Government,” Powell v. McCormack, 395 U.S. 486, 518 (1969), the validity of the other justifications for applying the political question doctrine are uncertain and have been “the subject of scathing scholarly attack.” Ramirez, 745 F.2d at 1514 & n.50; see, e.g., Herbert Wechsler, Prinicples, Politics and Fundamental Law, 11-14 (1961).

 13  The authorities cited by the government do not indicate otherwise. One of the government’s primary authorities is an old per curiam opinion from the court of appeals, Eminente v. Johnson, 361 F.2d 73 (D.C. Cir 1966), cert. denied, 385 U.S. 929 (1966). The government claims that this case involved “facts similar to those alleged by plaintiffs.” Def. Mem. at 34. In fact, however, there is no way of knowing whether the facts of that case are similar to those here because the opinion is just two paragraphs long, and it states only that “damage to property in a foreign country said to have been caused by the armed forces under authority of the Government of the United States” is a “non-justiciable issue.” Id. at 73. Thus, there is no way of knowing from the opinion exactly what question the court of appeals found to fall within the political question doctrine — if, in fact, that was the justiciability doctrine applied in that case. Cf. Ashkir v. United States {33kb.html, 34kb.pdf}, 46 Fed. Cl. 438 , 443 (2000) (treating Eminente as a standing decision). Moreover, to the extent the court of appeals held that all claims for damages to property in foreign countries caused by the armed forces are nonjusticiable, the decision has been overruled. See Ramirez, 745 F.2d at 1507-15 (finding claim of occupation and destruction of property in Honduras by United States army personnel justiciable).

Although the government cites a 1918 decision from the Supreme Court suggesting that the conduct of foreign relations is generally not subject to judicial review, see Def. Mem. at 29, it fails to inform the Court that the Supreme Court rejected this “sweeping statement[].” Baker v. Carr, 369 U.S. at 707 & n.31. Similarly, while the government cites to Judge Sentelle’s opinion in Antolok v. United States, 873 F.2d 369 (D.C. Cir. 1989), see Def. Mem. at 28-29, it fails to recognize that the portion of the opinion on which they rely was not joined by any other judge in that case, see Antolok, 837 F.2d at 370 (noting that then-Judge Starr did not join that portion of opinion), and was rejected by the dissent, see id. at 390-92 (Wald, J., concurring in the judgment). Finally, while the government quotes at some lengthy from a fourth circuit opinion, Tiffany v. United States, 931 F.2d 27, and a district court opinion from California, Rappenecker v. United States, 509 F. Supp. 1024, it does not even attempt to explain how the claims in those cases — which challenged the manner in which an Air Force jet intercepted an unidentified civilian plane in poor weather (see Tiffany, 931 F.2d at 272-75) and the undertaking and { p.32 } executing of a military rescue operation in the Gulf of Thailand (see 509 F. Supp. at 1025-26) — raised issues similar to the ones here.

 14  Moreover, one of the cases from which the government quotes (see Def. Mem. at 33-34) does not even rely upon the political question doctrine. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (D.C. Cir. 1985).

 

Source: Photocopy of a duplicate original (the Court’s file copy). Omitted: Table of Contents, Table of Authorities (pp. i-vi).

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting.

This case: El-Shifa Pharmaceutical Industries Company v. United States (U.S. missile-strike on Sudan, August 20 1998) (Article III, U.S. District Court), refused to adjudicate (D.D.C., No. 01-CV-731, November 29 2005, complaint filed, April 4 2001, motion to alter judgment denied, March 28 2007), appeal docketed, May 31 2007 (D.C. Cir., No. 07-5174), briefs filed, Jan. 18, Feb. 21, March 4, 2008, oral argument, April 7 2008.

Related case: El-Shifa Pharmaceutical Industries Company v. United States (U.S. missile-strike on Sudan, August 20 1998) (Article I, U.S. Court of Federal Claims), refused to adjudicate, 55 Fed. Cl. 751 (C.F.C., No. 00-CV-00443, March 14 2003, complaint filed, July 27 2000, reconsideration denied, April 14 2003), affirmed refusal to adjudicate, 378 F.3d 1346 (Fed. Cir., No. 03-5098, August 11 2004, appeal docketed, May 19 2003, rehearing and rehearing en banc denied, December 28 2004), refused to review refusal to adjudicate, certiorari denied, 545 U.S. 1139 {10.44mb.pdf} (U.S., No. 04-1291, June 27 2005, petition docketed, March 25 2005).
Related case: Idris v. U.S. Treasury Department (the owner of El-Shifa), filed, Feb. 26 1999 (D.D.C., No. 99-CV-472), dismissed as moot, May 5 1999) (blocked bank accounts, unblocked by the U.S. government, to avoid answering this complaint).

This document is not copyrighted and may be freely quoted.

Charles Judson Harwood Jr.

CJHjr

Posted Oct. 30 2003. Updated Nov. 11 2003

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