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Full-text: July 18 2003

United States Court of Appeals for the Federal Circuit

Filed, Jul 18 2003, U.S. Court of Appeals for the Federal Circuit, Jan Horbaly, Clerk

No. 03-5098

El-Shifa Pharmaceutical)
Industries Company and)
Salah El Din Ahmed)
Mohammed Idris)
United States,)

Appeal from the United States Court of Federal Claims in 00-CV-443 (50 kb), Judge Lawrence M. Baskir

Brief for Plaintiffs-Appellants


On August 20, 1998, the United States deliberately destroyed a pharmaceutical plant in the Republic of the Sudan with an attack of cruise missiles. The United States was not at war with Sudan. At the time of the attack, President Clinton and other administration officials made public statements, based upon erroneous intelligence, justifying the attack on the ground that the plant was a chemical weapons facility associated with the terrorist Osama bin Laden. In fact, the plant was not associated in any way with Osama bin Laden, and it did not produce chemical weapons or, indeed, any chemicals at all. Instead, the El-Shifa pharmaceutical plant was a privately-owned facility that packaged medicines urgently needed to combat malaria and other diseases in one of the poorest countries in the world. In this action, the owners of the El-Shifa plant seek just compensation for the destruction of their property under the Takings Clause of the Fifth Amendment.

In the face of widespread criticism of the attack on the El-Shifa plant, the Government publicly abandoned its initial justifications for the attack, and in this suit it has carefully avoided stating whether the plant was in fact involved in the production of chemical weapons or connected to international terrorism. Instead, without answering the complaint, the Government moved to dismiss on purely legal grounds. Although the lower court rejected those grounds, it nonetheless { p.2 } dismissed plaintiffs’ claim based upon arguments the court itself raised. Specifically, the lower court ruled that the Takings Clause does not apply to property destroyed by military conduct and, alternatively, that President Clinton’s designation of the El-Shifa plant as an enemy war-making facility in his initial public statements is conclusive and may not be challenged.

These rulings cannot be sustained. Although a variety of established doctrines assure that the Takings Clause has limited application to military operations, there is no justification in the text of the Clause, its historical background, or the case law for categorically exempting military conduct from the requirements of the Clause. Similarly, while the Clause’s just compensation requirement does not apply to “enemy property,” the absolute deference the lower court afforded to President Clinton’s mistaken designation of the El-Shifa plant as an enemy facility also conflicts with the case law, which uniformly subjects “enemy property” determinations to judicial review. Even if some deference to Executive Branch determinations relating to “enemy” status is appropriate, the court clearly erred in relying on factual assertions contained in President Clinton’s statements at the time of the attack, since those assertions were placed in doubt by subsequent Executive Branch statements and have not been affirmed by the Executive Branch in any pleadings filed in this case. { p.3 }

In its effort to protect President Clinton’s decision to attack the El-Shifa plant from any kind of judicial review, the lower court abandoned its proper role of assuring that the Government observe the strictures of the Constitution, even when conducting military operations. Particularly in these difficult times, it is important for this Court to affirm the Constitution’s requirements of fair process and its protections of private property, which distinguish our country from many others in the world.

Statement of Related Cases

No other appeal in this action has been before this or any other appellate court, and no other case is pending in this or any other court that will directly affect or be affected by the Court’s decision in the pending appeal. A related case based on the same transaction but raising claims outside the jurisdiction of the Court of Federal Claims, El-Shifa Pharmaceutical Industries v. United States, No. 01-CV-731 (RWR) (50 kb), is currently pending in the United States District Court for the District of Columbia Circuit.

Statement of Jurisdiction

The Court of Federal Claims had subject matter jurisdiction over this case under 28 U.S.C. § 1491(a). On March 14, 2003, the lower court entered a final judgment dismissing plaintiffs’ claims, JA 7, and on April 14, 2003, it denied plaintiffs’ motion for reconsideration. JA 39-40. On May 12, 2003, a timely { p.4 } notice of appeal was filed. JA 218-19. This Court has appellate jurisdiction under 28 U.S.C. § 1295(a)(3).

Statement of Issues

1.  Whether just compensation can ever be mandated under the Takings Clause for the destruction of private property by military conduct.

2.  Whether the lower court erred in holding that just compensation is not required for private property destroyed by the United States because the President stated publicly that it was enemy property at the time of its destruction, where the property was not in fact enemy property, and the Executive Branch has filed no pleadings contending that it was enemy property.

Statement of the Case

This suit arises out of the destruction of the El-Shifa pharmaceutical plant on August 20, 1998. The immediate owner of the plant, the El-Shifa Pharmaceutical Industries Company, and its ultimate owner, plaintiff Salah Idris, filed suit in July 2000 seeking just compensation under the Takings Clause for the destruction of their property. After the Government filed a motion to dismiss in January 2001, the lower court ordered two rounds of supplemental briefing on issues it raised by the court sua sponte and then dismissed the case on March 13 {sic: 14}, 2003 in an opinion reported at 55 Fed. Cl. 751. JA 8-38. A motion for reconsideration was denied on April 14, 2003. JA 39-40. { p.5 }

Statement of Facts

A.  The El-Shifa Plant

The El-Shifa pharmaceutical plant was located in Khartoum, the capitol of the Republic of the Sudan. JA 41. It was relatively small and unsophisticated by Western standards. JA 42, 48. It was incapable of manufacturing pharmaceuticals from their chemical components or fabricating chemicals of any kind. JA 44, 48. Instead, the plant mixed and packaged pharmaceuticals manufactured in Europe in bulk into tablets, syrups, ointments, and other consumer products. JA 43-44. Nonetheless, the El-Shifa plant was one of the largest and most modern pharmaceutical plants in Sudan, which is one of the poorest countries in the world, and it supplied a majority of the country’s human and veterinary pharmaceuticals, including drugs used to treat malaria, the leading cause of death in Sudan, ibuprofen, antibiotics, and anti-diarrhea drugs. JA 42, 44.

The El-Shifa plant was also a source of public pride in Sudan. JA 43. Foreign visitors, including Americans and other Westerners, were routinely invited to tour the plant and given the run of the facility, which had little security beyond a six-foot-tall fence. JA 43, 49. The plant’s activities were closely audited by the Eastern and Southern African Trade and Development Bank, which had loaned approximately $8 million toward the building of the plant. JA 45. Moreover, by August 1998, the plant had been registered by various regulatory authorities and { p.6 } organizations to market thirty-three commercial pharmaceutical products, and the United Nations had approved the sale of its veterinary medicines to Iraq under the U.N.’s “Oil for Food” program. JA 45.

B.  Salah Idris

Salah Idris is a well-respected banker and businessman engaged in a variety of business activities in the Middle East and Europe. JA 43, 57. Although Mr. Idris is now a citizen of Saudi Arabia and maintains a residence in Egypt, he was born and raised in Sudan, and he is an active and well-known supporter of the country’s main opposition party. JA 42, 43. Mr. Idris has made a number of investments in the country in the hope of providing jobs and commercial activities for his countrymen, including the El-Shifa plant, which he purchased for $18 million in March 1998. JA 43.

C.  The Destruction of the El-Shifa Plant

On August 20, 1998, several months after Mr. Idris’ purchase, the El-Shifa plant was destroyed by Tomahawk cruise missiles launched by the United States. JA 45. At the time of the attack, the United States was not at war with Sudan, and diplomatic relations between the two countries were then (as they are today) in place. Id. The attack was part of the United States’ response to the bombing two weeks earlier of the American embassies in Kenya and Tanzania by terrorists associated with Osama bin Laden. JA 205, 210. In that response, the United { p.7 } States launched cruise missiles against both the El-Shifa plant and an Al Qaeda training camp in Afghanistan. JA 210.

D.  The Justifications Offered for the Attack

The decision to destroy the El-Shifa plant was made during one of the most trying periods of the Clinton Administration. In addition to the embassy bombings, President Clinton was facing allegations concerning his relationship with Monica Lewinsky, which he was forced to admit publicly only three days before the attack. JA 46-47. Moreover, as later became apparent, the decision to target the El-Shifa plant was based upon scant intelligence that subsequent investigations would find to be wrong. JA 45-46, 61.

Nerve Gas — Immediately after the attack, President Clinton informed the American public that the El-Shifa plant was “a chemical weapons-related facility” linked to Osama bin Laden. JA 47, 205. The next day, the President told Congress that the plant was “being used to produce materials for chemical weapons.” JA 210. Other administration officials told the press that the plant manufactured EMPTA, a substance used in producing nerve gas, but did not produce any commercial products. JA 47-48, 51-52. In the immediate aftermath of the attack, it became apparent that none of these claims were true, and they were quickly abandoned by Administration officials. JA 50-51, 52. { p.8 }

EMPTA Storage — The Administration did not, however, acknowledge that the attack was in error. Instead, officials told the press that they had physical evidence that EMPTA was stored at the plant and that EMPTA had no commercial application. JA 52-53. In fact, as international arms control experts observed, EMPTA has commercial uses and is chemically similar to pesticides commonly used in both Africa and the United States. JA 54. Moreover, the Administration’s physical evidence turned out to be a single soil sample, supposedly taken from an area near the plant by a foreign agent more than seven months before the attack, that had indicated the presence of EMPTA but had been destroyed in testing. JA 52-53, 60. The CIA did not believe that the evidence provided by this sample was conclusive and recommended collection of additional samples. JA 55. After the bombing, soil, sludge, and debris samples were collected from the plant by experts engaged by plaintiffs and tested in independent European laboratories. JA 53. These tests showed no evidence that EMPTA had been present at the plant. JA 53-54.

The Osama Bin Laden Connection — The U.S. Government also claimed that the plant was linked to Osama bin Laden. At first, it claimed that bin Laden had a financial interest in the El-Shifa plant. JA 55. Within less than a week, the Government conceded that bin Laden had no direct interest in the plant. JA 55. It then claimed that the Sudanese Government’s Military Industrial Complex { p.9 } Corporation had invested in the plant. JA 56. In fact, no agency of the government of Sudan had any financial interest in the facility. Id.

Later, unidentified Government officials claimed that Mr. Idris, the true and sole owner of the plant, was a front man for bin Laden and Islamic Jihad. JA 58. These allegations also have no basis. Mr. Idris has never met Osama bin Laden and does not support either him or Islamic Jihad. Indeed, he maintains a residence and does business in Egypt, which would not be possible if the Egyptian government believed that he had any ties to Islamic Jihad, the organization that assassinated Anwar Sadat. JA 59.

The Government also imposed a freeze on a bank account owned by Mr. Idris based on his alleged terrorist connections. JA 59. When Mr. Idris sued {Feb. 26 1999} to unfreeze his assets because he is not a supporter of terrorism, the Government released the assets rather than file an answer to his complaint {May 5 1999}. Id.

Subsequent Investigations — Subsequent investigations cast even more doubt upon the Clinton Administration’s justifications for attacking the El-Shifa plant. U.S. intelligence agencies were unable to find any information confirming the alleged association of the plant with chemical weapons, and the State Department’s Bureau of Intelligence and Research drafted a report, suppressed by high-ranking officials, that found the evidence upon which the Administration relied inadequate. JA 60. Independent analyses, inspections of the ruined plant, { p.10 } opinions of experts, Western engineers who built the El-Shifa plant, and even friends of President Clinton who toured the El-Shifa plant similarly contradicted the Administration’s position. JA 49-50, 53-54. Indeed, the press observed that a “growing chorus of critics around the world” were unconvinced by the evidence offered by the Administration, and one well-respected publication reported that “‘there was a growing consensus among diplomats and journalists in Khartoum that American intelligence had boobed.’” JA 58, 61 (quoting The Washington Post, July 25, 1999, at F1, and The Economist, Aug. 29, 1998, at 43). Looking back on November 22, 1999, The New Republic, a magazine generally supportive of the Clinton Administration, concluded 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’” and that it was “‘time to say so.’” JA 61 (quoting The New Republic, Nov. 22, 1999, at 9).

E.  The Proceedings Below

On July 27, 2000, Mr. Idris and the El-Shifa Pharmaceutical Industries Company sued the United States in the Court of Federal Claims, alleging that the destruction of the El-Shifa pharmaceutical plant constituted a taking for which appellants were entitled to just compensation under the Fifth Amendment to the United States Constitution. JA 41. { p.11 }

The Initial Motion to Dismiss — The Government did not file an answer to the complaint. Instead, it moved to dismiss, alleging lack of personal jurisdiction, lack of subject matter jurisdiction, and that the Takings Clause was inapplicable to the destruction of property located abroad and owned by foreign citizens. See Memorandum of Law in Support of Defendant’s Motion to Dismiss (Jan. 26, 2001) at 1-2 (JA 100-01). At a status conference prior to the filing of these claims, the Government represented that it had “considered a number of other defenses, but on further research determined that they were not colorable” and therefore did “not anticipate raising additional defenses in a forthcoming motion to dismiss.” JA 83-84; see also Defendant’s Memorandum in Support of Motion to Dismiss at 3 n.l (representing that the defenses of military and public necessity “likely would require some discovery regarding disputed factual matters and thus are not well-postured to be raised” on a motion to dismiss) (JA 102).

The Supplemental Briefing — The Court of Federal Claims heard argument on the Government’s motion on November 14, 2001. During that hearing, Judge Baskir expressed concern that appellants were “seek[ing] to bring the President into Court and question his targeting decision,” and he asked the parties to brief whether this decision was a proper subject of judicial inquiry. JA 165-66. The judge also asked the parties to address the military necessity doctrine and to discuss an 1868 Court of Claims decision, Perrin v. United States, 4 Ct. Cl. 543 { p.12 } (1868), aff’d, 79 U.S. (12 Wall.) 315 (1870)). JA 167-68; accord JA 202-03. When the Government’s memorandum went beyond the scope of this order to argue for dismissal based upon the military necessity doctrine alone, the court invited the Government to file an additional motion seeking dismissal based upon military necessity. JA 212.

The Opinion Below — Following a second oral argument, the Court of Federal Claims dismissed plaintiffs’ claim. JA 9. In its opinion, the court rejected the Government’s personal and subject matter jurisdiction arguments, see JA 13-17 and found the Government’s arguments concerning the extraterritorial application of the Takings Clause foreclosed by the Court of Claims’ decision in Turney v. United States, 115 F. Supp. 457 (Cl. Ct. 1953). See JA 17-21. The court also commented that Mr. Idris “has strenuously denied any connection with terrorism” and that “[o]n a personal level, we see no reason not to accept these protestations at face value.” JA 31. Nonetheless, the court granted the Government’s motion to dismiss because, in its opinion, the Takings Clause “does not extend to claims arising out of the destruction of a purported enemy war-making instrumentality through American military action.” JA 9; see JA 21-31.

The court reached this conclusion in part because, in its view, “the [Takings Clause] applies to the civil functions of Government and not to the military.” JA 21. The court did not attempt to derive this proposition from the text of the { p.13 } Takings Clause or the principles underlying it. Instead, the court relied upon Perrin, in which it asserted “[t]his principle was stated in so many words.” JA 21. The Court also relied upon cases refusing to grant compensation for property destroyed due to the “fortunes of war,” id., and cases applying the military necessity doctrine, which the Court characterized as “polic[ing] the boundary between the exercise of the military power and the civil, eminent domain power of the state.” JA 21-22.

Alternatively, the lower court ruled that the El-Shifa plant was not “private property” cognizable under the Takings Clause but rather uncognizable “enemy property” by virtue of President Clinton’s statements on August 20, 1998, so that it could be destroyed without compensation. JA 23-24. The court acknowledged that the allegations in the complaint, which normally must be accepted as true on a motion to dismiss, denied that the plant was a chemical weapons facility or associated with Osama bin Laden. JA 23. It also recognized that, “[w]ith their citation of what they describe as instances of official back-pedaling, Plaintiffs have gone a long way in demonstrating that the designation of El-Shifa as a chemical weapons plant associated with terrorism may have been tragically inaccurate.” JA 28. The court nevertheless found itself “bound by the President’s designation of the El-Shifa plant as a chemical weapons facility under the control of Osama bin Laden.” JA 29. Although it acknowledged that courts frequently review { p.14 } Government designations of property as “enemy property,” JA 27-28, the Court of Federal Claims found that this case was different because the El-Shifa plant had been designated by the President as “enemy war-making property.” JA 28 (emphasis added). In the Court’s view, because “the President as Commander in Chief can conclusively designate by his actions a state of war,” it follows that “he can also designate as Commander in Chief the identity of the enemy targets for the purposes of applying military force or engaging in combat activities.” JA 29. The lower court also relied on the Fourth Circuit’s decision in Hamdi v. Rumsfeld {208kb.pdf}, 316 F.3d 450 (4th Cir. 2003) {judgment vacated June 28 2004 (U.S., No. 03-6696) (823kb.pdf)}, which had required a district court to defer to the Executive Branch’s designation of an individual as an “enemy combatant.” JA 29-31.

The Motion for Reconsideration — Plaintiffs moved for reconsideration on the ground that they had denied in their complaint that the El-Shifa plant was enemy war-making property, that the Government had carefully refrained from taking a contrary position, and that it was therefore possible that the parties were in agreement that the El-Shifa plant was not associated with terrorism, was not producing chemical weapons, and therefore did not qualify as enemy property. Under such circumstances, the plaintiffs argued, the Court should at least require the Government to answer the complaint and state its position. { p.15 }

On April 14, 2003, the lower court rejected the motion. JA 39-40. In so doing, the court denied that it had found “as a factual matter that El-Shifa was enemy property.” JA 40. Indeed, the court noted, it had gone to “great lengths to assure the Plaintiffs, particularly Mr. Idris, that the President’s association of El-Shifa with terrorist activity may well have been in error.” Id. Nonetheless, the court rejected plaintiffs’ takings claim on the ground that it was bound to “defer to the President’s characterization of El-Shifa as an imminent national security threat.” Id.

Summary of Argument

1.  Because plaintiffs allege that the United States destroyed their pharmaceutical plant in a deliberate attack authorized by the President without compensating them, they have stated a valid claim for just compensation under the Takings Clause. It makes no difference that the El-Shifa plant was owned by a foreign citizen and located abroad because, as this Court’s predecessor recognized, the Takings Clause protects private property without regard to the location of the property or citizenship of the owner.

2.  The lower court erred in dismissing plaintiffs’ takings claim.

a.  There is no military conduct exception to the Takings Clause. Far from suggesting any such categorical exception, the Takings Clause states in unqualified terms that “private property” shall not “be taken for public use, without { p.16 } just compensation,” U.S. Const., amend. V, and the principle of just compensation has long been recognized to apply to military conduct. Even more importantly, in United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952), and then in National Board of Young Men’s Christian Association v. United States, 395 U.S. 85 (1969), the Supreme Court entertained takings claims arising out of military conduct, and this Court’s predecessor has awarded compensation for takings based upon military conduct on at least three occasions.

The Court of Claims’ decision in Perrin v. United States, 4 Ct. Cl. 543 (1868), aff’d, 79 U.S. (12 Wall.) 315 (1870), does not suggest otherwise. Perrin applied two narrow doctrines that limit the application of the Takings Clause in the military context, but do not preclude its application to all military conduct. First, the decision applies the enemy property doctrine, which treats property located in territory controlled by an enemy of the country as enemy property and therefore subject to appropriation or destruction without compensation. Second, it applies the collateral damage doctrine, which recognizes that the Takings Clause applies only to deliberate government conduct and therefore does not apply to property accidentally or unintentionally damaged as a result of military operations. Other cases cited by the lower court invoked the military necessity doctrine, a narrow doctrine that applies only where a defendant can show an imminent and impending danger that created an extreme and imperative need to destroy property. These { p.17 } cases, which are inapplicable here, offer no support for the broad military conduct exception adopted below.

b.  Plaintiffs’ takings claim is not precluded by President Clinton’s August 1998 designation of the El-Shifa plant as a chemical weapons factory associated with Osama bin Laden. The political question doctrine does not apply to the fact issues which determine whether the plant was enemy property. The political question doctrine is a narrow rule, which does not excuse courts from addressing controversial issues or cases. Instead, the doctrine applies to particular issues or questions that must be decided in the course of a case, primarily where there is a textually demonstrable commitment of those questions to one of the political branches or where the questions are judicially unmanageable. That is not the case here. Indeed, courts have reviewed the bases for Executive designations of “enemies” and “enemy property” in a variety of different contexts. Moreover, the Fourth Circuit’s recent decision in Hamdi v. Rumsfeld {208kb.pdf}, 316 F.3d 450 (4th Cir. 2003) {judgment vacated June 28 2004 (U.S., No. 03-6696) (823kb.pdf)}, on which the lower court relied explicitly recognizes that deference to the Executive Branch on such issues is not absolute.

In addition, even if the political question doctrine or another rule of judicial deference is applicable, the Executive Branch should be required to respond to the complaint and state whether it still believes that the El-Shifa plant was in fact enemy property. The claims made in public statements of a former President { p.18 } cannot be presumed to represent the views of the current President and his representatives on the relevant facts — especially where, as here, the former President’s statement has been thoroughly discredited, the Executive Branch has publicly retreated from it, and the Government has declined to defend the statement in a prior proceeding.

3.  Permitting plaintiffs to bring a takings claim in this case will not interfere with the current war on terrorism or endanger national security. As this Court has recognized, takings claims do not prevent the President from taking military action because such claims do not question the Executive Branch’s authority to undertake action nor attribute reprehensible conduct to the United States. Moreover, courts are capable of protecting national security interests without adopting a sweeping military conduct exception or conferring upon the President unreviewable discretion to designate individuals as enemies of the state.

Primarily because of the enemy property doctrine and the state secrets privilege, plaintiffs will rarely be able to allege viable takings claims based upon military conduct, and in those few cases courts have ample tools for protecting any concerns about national security. Even more fundamentally, though courts should defer to the Executive Branch in military and national security affairs, courts cannot abdicate their responsibility to enforce the requirements of the Constitution upon the Executive Branch in the military context. { p.19 }

Standard of Review

The lower court’s dismissal of plaintiffs’ claim at the pleadings stage is reviewed de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in plaintiffs’ favor. Leider v. United States {56kb.html}, 301 F.3d 1290, 1295 (Fed. Cir. 2002); Ledford v. United States {34kb.html}, 297 F.3d 1378, 1380 (Fed. Cir. 2002).


Plaintiffs Have Alleged a Valid Takings Claim Based upon the Government’s Deliberate Destruction of the El-Shifa Plant

The final clause of the Fifth Amendment, known as either the Takings Clause or the Just Compensation Clause, contains an unequivocal command: ¶

“nor shall private property be taken for public use, without just compensation.” ¶

U.S. Const., amend. V. This command reflects a fundamental respect for private property, and its unqualified terms easily cover plaintiffs’ claim that the United States deliberately destroyed the El-Shifa plant without paying just compensation.

To allege a violation of the Takings Clause, a plaintiff need only claim “that the government took his property and ... failed to compensate him justly.” Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987). Where, as here, the government is alleged to have destroyed property, a taking may be shown by proving that ¶

(1)  the government action at issue was authorized, see, e.g., United States v. North American Transportation & Trading Co., 253 U.S. 330, 333, { p.20 } (1920); Del-Rio Drilling Programs, Inc. v. United States {78kb.html, 41kb.html}, 146 F.3d 1358, 1362 (Fed. Cir. 1998); ¶

(2)  the action was deliberate, not accidental or incidental, see, e.g., R.J. Widen Co. v. United States, 357 F.2d 988, 993 (Ct. Cl. 1966); and ¶

(3)  the destruction of the property was a natural, probable, or foreseeable consequence of that action, see, e.g., Berenholz v. United States, 1 Cl. Ct. 620, 627 (1982), aff’d, 723 F.2d 68 (Fed. Cir. 1983). See generally 2 Julius L. Sackman & Russell D. Brunt, Nichols on Eminent Domain § 6.07, at 6-44 (rev. 3d ed. 1990). ¶

Plaintiffs have clearly plead such a taking: their complaint alleges that the cruise missile attack on the El-Shifa plant on August 20, 1998 was authorized by the President (JA 62); that the attack was deliberate (JA 45); and that it was intended to destroy the plant to prevent its use by terrorists as a chemical weapons facility. (JA 47). As the complaint also alleges that the United States has refused to pay any compensation for this taking, JA 62, it states a valid claim for violation of the Takings Clause.

It makes no difference that the El-Shifa plant was owned by foreign citizens and located abroad. Nothing in the language of the Takings Clause limits its application to property located in the United States or owned by United States citizens. Instead, the Clause simply prohibits the taking of “private property” without just compensation. Accordingly, it is well-settled that the Takings Clause applies to the taking of property owned by foreign citizens, see, e.g., Harisiades v. { p.21 } Shaughnessy, 342 U.S. 580, 586 & n.9 (1952); Russian Volunteer Fleet v. United States, 282 U.S. 481, 489 (1931), and to the taking of property located outside of the United States. See, e.g., Langenegger v. United States, 756 F.2d 1565, 1570 (Fed. Cir. 1985); Case of Wiggins, 3 Ct. Cl. 412 (1867). In addition, as the lower court acknowledged, the Court of Claims has held that the Takings Clause applies when the United States takes property that is both located outside the United States and owned by an alien friend. See Turney v. United States, 115 F. Supp. 457 (Ct. Cl. 1953); see also Bankers Trust New York Corp. v. United States {33kb.html}, 225 F.3d 1368, 1373 (Fed. Cir. 2000) (noting that Court of Claims decisions are binding on this Court unless overturned en banc). Thus, “just compensation must be paid to nonresident aliens for the taking of property located outside the United States.” 8A Sackman & Brunt Nichols’ Law on Eminent Domain § 19.08[2], at 19-23 (rev. 3d ed. 1991).

This conclusion reflects the fundamental nature of the just compensation principle underlying the Takings Clause. As Justice Story observed, the Takings Clause “is founded in natural equity” and reflects a “principle of universal law.” II Joseph Story, Commentaries on the Constitution of the United States § 1790 (5th ed. 1891) (Wm. S. Hein & Co. reprint 1994) {1833 edition}. Moreover, the United States has long recognized that this principle applies internationally. See, e.g., Note of Secretary of State Hull, Aug. 22, 1938, 19 Dep’t of State Press Releases No. 465, Aug. { p.22 } 27, 1938, at 140 {1938 vol.5 Foreign Relations of the United States 685 (U.S. G.P.O., 1956)}; see also Restatement (Third) of Foreign Relations Law of the United States § 712 (1986) {ISBN: 0314301380, LCCN: 86020665, WorldCat} (noting that, under international law, a state is responsible for injuries due to any “taking by the state of the property of a national of another state that ... is not accompanied by provision for just compensation”). Thus, the Takings Clause protects property from government appropriation without regard to where the taking occurs or whose property is taken.

The Lower Court Erred
in Dismissing Plaintiffs’ Takings Claim

In dismissing plaintiffs’ takings claim, the lower court purported to apply a narrow rule covering only the destruction of enemy war-making property in military operations. JA 9, 21. This rule was justified, however, by two sweeping propositions: (i) the Takings Clause applies to the civil, but not the military, functions of government, see JA 21-22, and (ii) a President’s designation of property as an enemy war-making facility is conclusive, whether or not it represents the current understanding of the Executive Branch, and immunizes the destruction of that property from any judicial review under the Takings Clause, see JA 24-31. These propositions are untenable. They have no basis in the unqualified text of the Takings Clause, conflict with its historical underpinnings, and directly contradict more than a century of decisions in the Supreme Court and in the predecessor of this Court. { p.23 }

A.  There Is No Blanket Exception
for Military Conduct in the Takings Clause

Relying in large part upon Perrin v. United States, 79 U.S. (12 Wall.) 315 (1870), a 140-year-old opinion affirming a decision of the old Court of Claims, the lower court concluded that the Takings Clause does not apply once it is “recognize[d] that the challenged Government action is an exercise of military power, not civil eminent domain.” JA 24. This categorical rule has no basis.

1. Neither the Text Nor the History of the Takings Clause
Supports a Military Conduct Exception

The lower court opinion does not — and cannot — derive its exception for military conduct from either the text or the history of the Takings Clause.

The text of the Takings Clause does not permit a categorical exemption for military conduct. Far from suggesting such an exception, the Clause states in absolute and unqualified terms: “private property” shall not “be taken for public use, without just compensation.” U.S. Const., amend. V. The Clause cannot be implicitly limited to exercises of the eminent domain power, as the opinion below suggests at several points. JA 24 (noting that the “challenged Government action is an exercise of military power, not civil eminent domain”); JA 25 (distinguishing between the “civil power of eminent domain comprehended by the Fifth Amendment, and the exercise of military power which falls outside it”). It is well-settled that the Takings Clause applies not only to the appropriation of property { p.24 } under the eminent domain power, but also to the destruction of property under-other governmental powers. See, e.g., United States v. General Motors Corp., 323 U.S. 373, 378 (1945) (“the deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking”); see also Richard A. Epstein, Taxation, Regulation, and Confiscation, 20 Osgoode Hall L.J. 433, 435 (1982) (noting that the Takings Clause places limits on governmental conduct that extend beyond the power of eminent domain to include, for example, the powers of taxation and regulation).

The history of the Takings Clause is also incompatible with the military conduct exception adopted by the lower court. The principle of just compensation developed by seventeenth and eighteenth century natural law theorists was one of the “direct antecedents of the just compensation provision of the fifth amendment.” Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36, 54 (1964); see also Richard A. Epstein, Takings, Private Property and the Power of Eminent Domain 10, 29 (1985) (noting the influence of John Locke, who viewed property as a natural right, on the Takings Clause). Far from suggesting that military conduct lies beyond the scope of the just compensation principle, these theorists specifically recognized that the principle applies to military conduct. For example, one theorist noted that compensation is due when “in sieges the dwellings and trees of private citizens are cleared away, that they may not work to the benefit of the { p.25 } besiegers.” VIII Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo book 8, ch. 5, § 7 (1688) (Wm. S. Hein & Co., reprint 1995); see also 2 J.J. Burlamaqui, The Principles of Natural and Politic Law 326 (Nugent trans., 4th ed. 1763) {5th edition} (using same example). Another natural law theorist observed that compensation should be paid for houses “burned or torn down to prevent the approach of the enemy.” 2 Cornelius Van Bynkershoek, Quaestionem Juris Publici Libri Duo 222 (1737) (Tenney Frank trans., Wm. S. Hein & Co. reprint 1995) {1088kb.html}. As such conduct is plainly military in nature, it is clear that the just compensation principle underlying the Takings Clause extends to military conduct.

In addition, there is evidence that the Founders had military conduct in mind when they adopted the Takings Clause. Although there was no debate over the adoption of the Takings Clause either in Congress or in the state conventions where many of the other provisions in the Bill of Rights were proposed, the continental army’s practice of impressing horses and seizing goods appears to have prompted the Clause. See Matthew P. Harrington, “Public Use” and the Original Understanding of the So-Called “Takings” Clause, 53 Hastings L.J. 1245, 1284-86, 1290 (2002). According to St. George Tucker, one of the most influential early commentators on the Constitution, the Takings Clause “was probably intended to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practi[c]ed during the { p.26 } revolutionary war.” 1 St. George Tucker, Blackstone’s Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia 305-06 {contents, quoted text: 28kb.html} (1803) (Lawbook Exchange, Ltd. reprint 1996); see also Lawrence M. Friedman, A History of American Law 219, 320, 326 (1985) (discussing Tucker’s influence and standing). This history is incompatible with the exception for military conduct adopted below.

2.  Courts Routinely
Apply the Takings Clause to Military Conduct

In keeping with the text and history of the Takings Clause, courts frequently apply the Clause to property destroyed by military conduct.

For example, in United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952), several oil companies claimed compensation under the Takings Clause for the destruction of oil terminal facilities in Manila by U.S. army engineers in December 1941 as Japanese troops were entering the city. Although the Supreme Court denied the companies’ claims, it did not simply dismiss them on the ground that the conduct being challenged was military in nature. Instead, the Court found that the terminal facilities were a “potential weapon of great significance to the invader” and that it was therefore necessary to destroy them “in the face of their impending seizure by the enemy.” Id. at 155-56. Moreover, in so doing, the Court rejected the notion that application of the Takings Clause can be reduced to a series of sweeping rules. “No rigid rules,” it observed, “can be laid down to distinguish { p.27 } compensable losses from noncompensable losses. Each case must be judged on its own facts.” Id. at 156. This opinion cannot be reconciled with a categorical exception for military conduct.

The decision below is also incompatible with the Supreme Court’s decision in National Board of Young Men’s Christian Association v. United States, 395 U.S. 85 (1969). In that case, the plaintiffs claimed compensation under the Takings Clause for the destruction of buildings occupied by American army troops in attempting to quell rioting in the Panama Canal zone. Id. at 86-88. Although the Court rejected these claims as well — on the ground that the troops were attempting to defend the buildings and that their occupation of the buildings did not directly cause any damage to them (see id. at 92-93) — four members of the Court recognized that a takings claim can, in appropriate circumstances, be based upon military conduct during combat operations. See id. at 94 (noting that a compensable taking would occur if “United States military forces should use a building for their own purposes — as a defense bastion or command post, for example”) (Stewart, J., concurring); id. at 98-99 (stating a compensable taking would occur if “the military had reason to know that the buildings would have been exposed to a lesser risk of harm if they had been left entirely unprotected”) (Harlan, J., concurring in the result); id. at 99 (arguing that a compensable taking occurred in the case) (Black, J., joined by Douglas, J., dissenting). { p.28 }

Moreover, some takings claims arising out of military conduct have been successful. For example, in 1854, the United States sent a naval ship to a city in Nicaragua that stood on a route then widely used to pass from the Atlantic to the Pacific Ocean and then to California. Case of Wiggins, 3 Ct. Cl. 412, 421 (1867). A group of adventurers took control of the city, changed its name, to Greytown, and began to harass American citizens and damage their goods and property. Id. After the adventurers refused to comply with the ship’s demand for redress, the ship fired on the town and burned it to the ground. Id. The ship later destroyed gun powder warehoused nearby to prevent it from falling into the hands of the adventurers. Id. When the owner of the powder, who was apparently not associated with the adventurers, sued under the Takings Clause, the Court of Claims granted compensation even though the destruction of the powder was clearly due to military conduct. Id. at 422-23.

The Court of Claims also granted compensation to an owner of property destroyed by a Union commander during the Civil War. Grant v. United States, 1 Ct. Cl. 41, 49 (1863). The officer in question commanded troops stationed in Tucson in 1861. Because the population of the territory was hostile to the federal government, and rebel forces from Texas were attempting to cut his troops off, the commander decided to abandon Tucson. Before doing so, he ordered the destruction of various buildings and supplies there that “would give essential aid { p.29 } and support to the enemy.” Id. at 49. Although this conduct was plainly military in nature, the Court of Claims held that the owner of the destroyed buildings and supplies was entitled to compensation under the Takings Clause. Id. at 50; see also Baras Plantation Co. v. United States, 105 F. Supp. 1003, 1003 (Ct. Cl. 1952) (awarding compensation for trees “cut or removed by the armed forces for ... military purposes”). Thus, the military conduct exception adopted below contradicts decisions from both this Court’s predecessor and the Supreme Court.

3.  Perrin and the Other Cases Cited Below
Do Not Support a Military Conduct Exception

The opinion below purports to derive its military conduct exception from the early nineteenth century case of Perrin v. United States, 4 Ct. Cl. 543 (1868), aff’d, 79 U.S. (12 Wall.) 315 (1870), and several more recent decisions. JA 21-22. In fact, Perrin and the other cases apply several narrower doctrines that limit the application of the Takings Clause to military conduct but do not preclude its application to the unusual facts here.

1.  Like the Wiggins case, see supra p.28, Perrin arose out of the attack on Greytown in 1854. The plaintiff in Perrin, a French citizen named Marie Louise Perrin, sought compensation for property destroyed in the bombing of Greytown itself. Perrin, 4 Ct. Cl. at 546. She based her suit on two theories: first, that she was entitled to just compensation under the Takings Clause and, second, that the bombardment and burning of the city violated international law. See id. at { p.30 } 544-45. The Court of Claims rejected both theories. It held that Mrs. Perrin’s challenge to the legality of the bombardment under international law raised “international political questions” that it was not authorized to resolve. Id. at 547. The court also rejected Mrs. Perrin’s takings claim. It noted that the claim “bears no resemblance to that of Grant v. The United States or Wiggins v. The United States” because in those cases property “was destroyed to prevent it from falling into the hands of the public enemy,” while the property in Perrin was “destroyed in hostile operations against the public enemy.” Id. (citations omitted). In the court’s view, this distinction was crucial because the government is not required to compensate for property “destroyed in attacking or defending against a common public enemy,” and because the government is not “bound to pay for the property of neutrals domiciled in the country of its enemy, which its forces may chance to destroy in its operations against such enemies.” Id. at 548.

As the favorable citations to the Grant and Wiggins cases make clear, the Perrin opinion does not recognize a categorical exception to the Takings Clause for military conduct. Instead, it applies two narrower doctrines. ¶

First, in noting that the property of Mrs. Perrin was “domiciled in the country of [an] enemy,” the opinion applied the enemy property doctrine, under which all property in territory under enemy control is deemed to be enemy property and therefore subject to seizure or destruction without compensation under the Takings Clause. See, e.g., { p.31 } Juragua Iron Co. v. United States, 212 U.S. 297, 306 (1909) (holding that property of an American corporation located in Cuba during the Spanish-American war “could be regarded as enemy’s property, liable to be seized and confiscated by the United States in the progress of the war then being prosecuted”); Lamar v. Browne, 92 U.S. 187, 194 (1875) (“property found in enemy territory is enemy property, without regard to the status of the owner”) (emphasis in original). The enemy property doctrine is based in part upon the Government’s power under the Constitution to grant “letters of marque” and make rules concerning “captures,” U.S. Const., art I, § 8, cl. 11; see Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870), and in part upon the law of nations, which recognizes the right of a country at war “to cripple [its adversary’s] resources by the seizure or destruction of his property.” The Brig Amy Warwick (“The Prize Cases”), 67 U.S. (2 Black) 635, 671-74 (1862). Because an enemy country or group can potentially use any property within its territorial control, “either by actual appropriation or by exercise of control over its owner,” such property is subject to confiscation and destruction under the enemy property doctrine. Miller, 78 U.S. (11 Wall.) at 306. This rationale is based on the nature and location of the property in question, and it extends to congressional legislation as well as Executive action. See, e.g., Silesian Am. Corp. v. Clark, 332 U.S. 469, 474-75 (1947) (discussing the Trading with the Enemy Act); Miller, 78 U.S. (11 Wall.) at 303-14 (discussing Civil War { p.32 } confiscation acts). Accordingly, the enemy property doctrine offers no support for the military conduct exception adopted below.

Second, in noting that the Takings Clause does not apply to property “destroyed in attacking or defending against a common public enemy,” 4 Ct. Cl. at 546-47 {sic: 547-48}, the Perrin opinion applied what may be termed the collateral damage doctrine. See, e.g., United States v. Pac. R.R., 120 U.S. 227, 233-35 (1887) (noting that the Takings Clause does not apply to injuries accidentally caused by a sovereign). As a general rule, the government “takes” property by destroying it only when the destruction is deliberate, see, supra, p.20, and incidental destruction of property falls within the realm of tort. See, e.g., Columbia Basin Orchard v. United States, 132 Ct. Cl. 445, 450 (1955). See generally 8A Nichols on Eminent Domain § 1.44[7], at 1-855 (1988). In the collateral damage doctrine, this principle is applied rather broadly to the combat context: because injuries suffered due to war are so widespread, all collateral damage suffered as a result of military operations during war is deemed to be “mere[] accident[],” part of the “misfortunes” of war under which the population as a whole struggles. Pac. R.R., 120 U.S. at 234; see also Armstrong v. United States, 364 U.S. 40, 49 (1960) (noting that the Taking Clause is intended to prevent government from “forcing some people alone to bear public burdens which in all fairness and justice, should be borne by the public as a whole”). Because the collateral damage doctrine is { p.33 } ultimately based upon the objective, not the nature, of government conduct, it offers no support for the military conduct exception.

2.  The lower court opinion also cites a number of cases applying the military necessity doctrine to support its military conduct exception. See JA 21-22. But the military necessity doctrine is even narrower than the enemy property and collateral damage doctrines. It applies only where there is an “immediate, imminent, and impending” danger, and the necessity for destroying the property in question is “extreme and imperative.” Russell v. United States, 80 U.S. (13 Wall.) 623, 628 (1870). See generally 1 Nichols on Eminent Domain § 1.43, at 1-841 (1988) (noting that public necessity justifies destruction of property only “when immediate action is necessary to save human life or to avert an overwhelming destruction of property”). Moreover, the Supreme Court has consistently recognized its obligation to review claims of necessity. See, e.g., Sterling v. Constantin, 287 U.S. 378, 401 (1932) (“What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”). Accordingly, where the government has invoked the military necessity doctrine to excuse its failure to pay just compensation for appropriating or destroying property, courts have reviewed — and in some cases rejected — claims of necessity. See, e.g., Baras Plantation, 105 F. Supp. at 1004 (finding that the “record does not justify” the Government’s claim that private property was { p.34 } taken “under the pressure of military necessity”); see also Caltex, 344 U.S. at 151 (finding destruction of oil facilities located in Manila justified in light of enemy’s approach to the city after the attack on Pearl Harbor).

This narrow doctrine offers no support for the categorical exception for military conduct adopted below. First, the military necessity doctrine is based upon the nature of the problem faced, not the conduct undertaken. Second, compensation is not always denied when destruction of property is required by military necessity. See, e.g., Russell, 80 U.S. (13 Wall.) at 628 (finding that the plaintiffs’ steamboats were seized out of “imperative military necessity,” but nonetheless holding that the government was “bound to make full compensation to the owner for the services rendered”). Finally, the military necessity doctrine does not define the scope of the Takings Clause; instead, as the cases cited by the lower court show, it is a defense on the merits that is applied based upon the particular facts adduced at trial. See, e.g., Caltex, 344 U.S. at 152; Juragua, 212 U.S. at 301; Russell, 80 U.S. (13 Wall.) at 632. Thus, far from supporting a categorical exception for military conduct, the military necessity doctrine recognizes that indisputably military conduct can be the subject of claims under the Takings Clause.

3.  Neither the enemy property doctrine, the collateral damage doctrine, nor the military necessity doctrine bars the claims here, at least at the pleading { p.35 } stage. First, the complaint specifically alleges that the El-Shifa plant was not enemy property. According to the complaint, the plant was located in territory controlled by a country at peace, not war, with the United States (JA 45-46, 62); it was not owned or in any way associated with Osama bin Laden or terrorism (JA 55, 56-57, 59); and it posed no danger to the United States or its allies (JA 62). Second, the El-Shifa plant did not suffer incidental or collateral damage; like the gunpowder in Wiggins, the plant was deliberately targeted for destruction to prevent its possible use by enemies of this country. JA 45-46, 62. Third, the military necessity doctrine is inapplicable because there was no “extreme or imperative danger” not “admit[ting] of delay or a resort to any other source of supply” necessitating the attack. Russell, 80 U.S. (13 Wall.) at 628. As a consequence, none of the cases cited by the lower court support its military conduct exception.

B.  President Clinton’s August 1998 Statements
that the El-Shifa Plant Was Enemy Property
Do Not Foreclose Plaintiffs’ Takings Claim

The lower court also held that President Clinton’s August 1998 statements describing the El-Shifa plant as an enemy chemical weapons facility in his statement on August 20, 1998 precluded plaintiffs from questioning whether the plant was such an instrumentality and therefore from opposing the application of the enemy property doctrine. See JA 22-31. This ruling appears to have been { p.36 } based on the political question doctrine. 1  See JA 30 (asserting that “matters relating to exercise of war-making powers are the most fundamental of ‘political questions’”). But see JA 25 (refusing to accept the Government’s political question argument). The political question doctrine does not, however, apply to the designation of enemy property. Moreover, even if the doctrine were applicable, the Executive Branch would still be required to state its position on the relevant factual question — i.e., whether it stands by President Clinton’s initial assertions that the El-Shifa plant was a chemical weapons facility associated with Osama bin Laden.

1.  The Political Question Doctrine Is Inapplicable Here

The political question doctrine — which is “at best, a narrow one,” 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) — is inapplicable here. { p.37 }

Although this case arises out of an incident that may be embarrassing to the Executive Branch, the sensitivity of the topic does not trigger application of the political question doctrine. As the Supreme Court recognized in its seminal decision in Nixon v. United States, 506 U.S. 224 (1993), the political question doctrine is “one of ‘political questions,’ not one of ‘political cases’.” Id. {sic: Baker v. Carr, 369 U.S. 186} at 217. As a consequence, the political question doctrine does not allow courts to avoid deciding cases simply because they “may have significant political overtones,” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986), touch upon foreign affairs, see, e.g., Langenegger, 756 F.2d at 1569 (“[T]he Constitution does not provide for a foreign affairs exception.”), or implicate national security, see, e.g., New York Times v. United States, 403 U.S. 713 (1971) (considering disclosure of the “Pentagon Papers,” classified documents concerning the conduct of the Vietnam War). Moreover, it is well-settled that no political question is raised by the mere fact that a court may embarrass another branch by finding its conduct unconstitutional. See, e.g., United States v. Munoz-Flores, 495 U.S. 385, 390-91 (1990); Powell v. McCormack, 395 U.S. 486, 549 (1969). To the contrary, the political question doctrine specifically recognizes that the courts are obligated to “act as the ultimate interpreter of the Constitution.” Powell, 395 U.S. at 486.

The political question doctrine is “primarily a function of the separation of powers.” Baker, 369 U.S. at 210. In applying the doctrine, courts look to three { p.38 } factors. First, they consider whether the Constitution contains a textually demonstrable commitment of the question at issue to one of the political branches. See, e.g., Nixon, 506 U.S. at 229-39. Second, they consider whether there are judicially discoverable or manageable standards for resolving the question in issue. See, e.g., Gilligan v. Morgan, 413 U.S. 1, 10-11 (1973). Third, they take into account a number of prudential factors such as the existence of an “unusual need for unquestioning adherence to a political decision already made” or the “impossibility of a court’s undertaking independent resolution [of a question] without expressing lack of the respect due coordinate branches of government.” Baker, 369 U.S. at 217; accord Langenegger, 756 F.2d at 1568. Of these three factors, the first two are the “dominant” ones. Baker, 369 U.S. at 210; see also Lamont v. Woods, 948 F.2d 825, 831 (2d Cir. 1991) (noting that the textual commitment factor is the “dominant consideration”). Indeed, in its most recent invocation of the political question doctrine, the Supreme Court neglected to mention the prudential factors at all. See Nixon, 506 U.S. at 228.

These three factors all weigh against application of the political question doctrine here. ¶

First, and foremost, there is no textually demonstrable commitment in the Constitution of the question of the enemy status of property under the Takings Clause to the Executive Branch. The Constitution is silent on this question, and the Takings Clause simply requires just compensation for the taking { p.39 } of private property without entrusting application of that principle to the political branches. Indeed, the Clause has been interpreted to create a judicially enforceable remedy. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315-16 & n.9 (1987). ¶

Second, the determination whether property qualifies as enemy property is judicially manageable. The question whether an individual is associated with a nation or group hostile to the United States is a question of historical fact which the adversarial system is well-suited to determine. Cf. Ramirez, 745 F.2d at 1513 (noting that takings claims involve “quintessential tasks of the federal Judiciary”).

Third, such determinations do not raise any prudential considerations that warrant application of the political question doctrine. Although it is true that plaintiffs claim that the El-Shifa plant was not a chemical weapons facility associated with Osama bin Laden, there is “no unusual need for unquestioning adherence” to President Clinton’s contrary designation, Baker, 369 U.S. at 217. Not only have his claims been widely discredited, but the Executive Branch has itself failed to show “unquestioning adherence” to President Clinton’s initial claims in its “official backpedaling,” its later failure to defend the freezing of Mr. Idris’ assets, and its guarded pleadings in this case. Moreover, even though this case involves both military and foreign affairs, this Court does not express any lack of respect for its coordinate branches warranting application of the political { p.40 } question doctrine simply by scrutinizing the constitutionality of the Government’s failure to pay just compensation. See Langenegger, 756 F.2d at 1570; Ramirez, 745 F.2d at 1513.

Accordingly, courts have long reviewed executive designations of property as “enemy property.” For example, in Juragua, the Supreme Court determined that the buildings destroyed by the United States were enemy property, and therefore not subject to compensation under the Takings Clause, based upon the “facts found” by the trial court and the Court’s own analysis of the “circumstances disclosed by the record,” not the determinations of Executive Branch officials. Juragua, 212 U.S. at 301, 309; see also Seery v. United States, 127 F. Supp. 601, 603-06 (Ct. Cl. 1955) (closely reviewing evidence concerning the “enemy status” of Austria at time of the alleged taking). Similarly, the Supreme Court has reviewed the seizure of cargo allegedly belonging to a country with which trade was prohibited and decided that the evidence supporting this allegation was not sufficient to justify the seizure. William Maley v. Jared Shattuck, 7 U.S. (3 Cranch) 458, 489-90 (1806); see also The Paquete Habana, 175 U.S. 677, 713-14 (1900) (rejecting naval officer’s determination that seized vessels were aiding the enemy); The Marianna Flora, 24 U.S. (11 Wheat.) 1, 40, 50 (1825) (reviewing the seizure of a ship that naval officers had determined to be a pirate ship and rejecting that determination). The Supreme Court has also approved summary seizure of { p.41 } alien property where “adequate provision [has been] made for a return in case of mistake.” Stoehr v. Wallace, 255 U.S. 239, 245 (1921). The designation of the El-Shifa plant as enemy property in this case should be subject to judicial review as well.

In treating the determination of the status of the El-Shifa plant as friendly or enemy property as a political question, the lower court did not review the factors governing application of the political question doctrine or discuss any of the decisions reviewing executive designations of enemy property. Instead, the lower court asserted that because the President “can conclusively designate by his actions a state of war, so he can also designate as Commander in Chief the identity of the enemy targets.” JA 29. But this is nothing more than word play. While it is true that the Constitution entrusts the political branches with deciding whether the Nation is at war, see, e.g., The Prize Cases, 67 U.S. (2 Black) at 670; Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30-31 (1827), it does not follow that President Clinton’s designation of the El-Shifa plant as enemy property raises an unreviewable political question. As the Supreme Court has warned, the political question doctrine is not susceptible to “any semantic cataloguing” of the sort that would permit the inference made by the lower court; instead, the doctrine requires a “discriminating inquiry into the precise facts and posture of the case.” Baker, 369 U.S. at 215, 217. While the determination whether the country is at war with { p.42 } another country or whether a particular group is an enemy of the United States involves sensitive policy, military, and diplomatic assessments that courts are ill-equipped to make, as just noted above, the determination whether an individual is a member of an enemy group, or property is used by an enemy group, is a largely factual question that courts are well-suited to make (though with appropriate deference to the Executive Branch). There is no justification for immunizing such determinations from all judicial review.

Nor does the Fourth Circuit’s decision in Hamdi v. Rumsfeld {208kb.pdf}, 316 F.3d 450 (4th Cir. 2003) {judgment vacated June 28 2004 (U.S., No. 03-6696) (823kb.pdf)}, on which the lower court relied, suggest otherwise. In Hamdi, an American citizen captured in Afghanistan was designated as an enemy combatant and detained indefinitely in a navy brig in Norfolk, Virginia. As the opinion below pointed out, the Fourth Circuit reviewed the affidavit submitted by the Government justifying the designation of Mr. Hamdi with great deference. JA 29-30. The Fourth Circuit did not, however, find that this designation precluded any judicial review of Mr. Hamdi’s status. To the contrary, it explicitly stated that “judicial deference to executive decisions made in the name of war is not unlimited” and that “[t]he duty of the judicial branch to protect our individual freedoms does not simply cease whenever our military forces are committed by the political branches to armed conflict.” Hamdi, 316 F.3d at 464 {judgment vacated June 28 2004 (U.S., No. 03-6696) (823kb.pdf)}; see also id. at 477 (“Judicial review does not disappear during wartime, but the review of battlefield captures in { p.43 } overseas conflicts is a highly deferential one.”). Thus, although the Fourth Circuit was highly deferential to the Executive Branch, it nonetheless “sanctioned a limited and deferential inquiry into Hamdi’s status” in which the Government was forced to respond to Hamdi’s petition and submit an affidavit describing the circumstances surrounding his capture and the justification for designating him as an enemy combatant. Id. at 461; see also Padilla v. Bush {231kb.pdf}, 233 F.Supp.2d 564, 572-73, 605 (S.D.N.Y. 2002) {reversed June 28 2004 (U.S., No. 03-1027) (517kb.pdf)} (refusing to accept President’s designation without affording the defendant the opportunity to respond). As a consequence, even the lower court’s primary authority contradicts its claim that the President’s designation of enemies and enemy properly is entitled to absolute deference.

2.  The Executive Branch Must Still State
Whether It Believes the El-Shifa Plant Was Enemy Property

Even if the Government’s determination whether the El-Shifa plant was “enemy property” deserves deference under the political question doctrine or some other rule, the Government must answer the complaint and clarify its current position on this issue.

It is highly doubtful that the Executive Branch still believes that the El-Shifa plant was a chemical weapons facility associated with Osama bin Laden. Although plaintiffs vigorously denied in the complaint that the El-Shifa plant was an enemy chemical weapons facility, see supra, p.35, throughout the proceedings below, the Government carefully avoided taking a position on the status of the El-Shifa plant. { p.44 }

In its initial motion and brief, the Government made no claim that El-Shifa was enemy property, a weapons facility, or associated with terrorism. See Memorandum in Support of Defendant’s Motion to Dismiss at 3-26 (JA 102-125). Similarly, in the supplemental briefing requested by the court, the Government carefully avoided stating whether President Clinton’s claims were in fact true; instead, it argued evasively that “Presidential statements and the factual findings they contain are immune from review and thus conclusive.” Reply Memorandum in Support of Defendant’s Motion to Dismiss Based on the Political Question Doctrine and the Doctrine of Necessity at 7 n.5 (JA 217).

President Clinton’s public statements in August 1998 are not a sufficient basis for invoking the political question doctrine or any other rule of deference. An out-of-court statement by a former President is not the equivalent of an answer or affidavit filed in court by the current President and his representatives — especially where, as here, the statements of the former President have been thoroughly discredited and the Executive Branch has publicly retreated so far from its initial position that these statements cannot be presumed to represent the position of the current Administration on the relevant facts. See supra pp.7-9. It is entirely possible that the parties are now in agreement that the El-Shifa plant was not involved in chemical weapon production and that it had no association with any enemy of the United States. Thus, even assuming that the political question { p.45 } doctrine or some other rule of deference applies to Executive determinations of enemy property, President Clinton’s August 1988 statements are not entitled to deference for the simple reason that they may not represent the Executive Branch’s current position on the facts. Indeed, to defer to determinations that may no longer represent the Executive Branch’s position turns the political question doctrine on its head by allowing the judiciary to decide how a question supposedly entrusted to the political branches will be determined.

“ (b) Representations to Court. By presenting to the court ... a pleading, written motion, or other paper, an attorney ... is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,– ...

(3) the allegations and other factual contentions have evidentiary support ...

(c) Sanctions. If ... the court determines that subdivision (b) has been violated, the court may ... impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

FRCP Rule 11 CJHjr

Requiring the Executive Branch to state its position on the facts relevant to this constitutional claim does not interfere with Executive prerogatives. While the political question doctrine recognizes that certain issues are entrusted to the political branches, it does not permit the Executive Branch to evade questions that it is, along with the courts, obligated by the Constitution to address. Even if judicial review of its decisions is limited, the Executive Branch has a constitutional obligation to determine whether it has taken innocent private property for which compensation should be paid. Laurence H. Tribe, American Constitutional Law § 16-20, at 1513, § 17-1, at 1674 n.3 (2d ed. 1988) (where the political question doctrine precludes judicial review, the Executive Branch should “redouble the attention given by the political branches to their constitutional oaths”). Whether or not the political question doctrine applies to its judgment, the Government must be { p.46 } required to answer the complaint and inform the Court whether it still believes in good faith that the plant was enemy property.

Plaintiffs’ Takings Claim Can Be Adjudicated
Without Infringing Upon Executive Power
or Endangering National Security

In adopting rules broad enough to bar plaintiffs’ claim, the lower court appears to have been concerned about interfering with national security, particularly in the current struggle against terrorism. Although these concerns are legitimate, they do not require the creation of any new military conduct exemption or rule of absolute deference to presidential designations of “enemies” and “enemy property.” As this Court has recognized, takings claims do not interfere with the President’s ability as Commander in Chief to direct military action; they simply determine whether compensation is due and therefore do not “question the executive’s authority to undertake any action” or require any “attribution to the United States of reprehensible conduct.” Langenegger, 756 F.2d at 1569, 1570. Moreover, courts are more than capable of protecting other national security concerns without the sweeping new rules adopted below.

Contrary to the lower court’s suggestion, permitting this highly unusual claim to be heard presents no risk that the military would then be subject to numerous claims that “divert ... efforts and attention from the military offensive abroad to the legal defensive at home.” JA 31 (quoting Johnson v. Eisentrager, { p.47 } 339 U.S. 763, 779 (1950)). Takings claims are seldom possible where property is destroyed by the military, primarily because of the enemy property doctrine. As explained above, under that doctrine, “enemy property” is subject to confiscation and destruction without compensation, and when the United States is at war with a country, the doctrine bars claims by citizens of the enemy country, regardless of their physical location. See supra pp.30-31. Moreover, all persons residing in territory controlled by an enemy of the United States are “deemed enemies of the United States,” without regard to their individual views or nationality. Juragua, 212 U.S. at 306; see also Ribas y Hijo v. United States, 194 U.S. 315, 322 (1904) (noting that all subjects of an enemy country are deemed an enemy whatever their individual views may be). As a consequence, a valid takings claim could not be brought by citizens or residents of either Afghanistan or Iraq based upon military conduct during the United States’ recent wars. In addition, as Perrin suggests, see supra pp.29-31, the enemy property doctrine also bars claims by residents of sub-national areas controlled by non-state enemies (such as a terrorist base or training camp). Thus, claims subject to the enemy property defense ordinarily can be dismissed on the pleadings or with minimal fact-finding.

Even where the enemy property doctrine does not, on its face, bar a takings claim arising out of a military attack, the claim may nonetheless be dismissed at the pleadings stage if the attack was secret. Under the state secrets privilege, { p.48 } “military matters which, in the interest of national security, should not be divulged” are absolutely privileged. United States v. Reynolds, 345 U.S. 1, 10-11 (1953). See generally 2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 221 (2d ed. 1994). In addition, where the “very subject matter of [an] action” is a state secret, the privilege may require that the action be “dismissed on the pleadings.” Reynolds, 345 U.S. at 11 n.26 (discussing Totten v. United States, 92 U.S. 105 (1875)). See, generally, Kelly D. Wheaton, “Spycraft and Government Contracts: A Defense of Totten v. United States” (The Army Lawyer, August 1997, pages 9-17) {87kb.pdf, 816kb.pdf, LoC}. CJHjr As a consequence, a takings claim based upon a secret, covert operation that is a state secret would be subject to dismissal under the state secrets privilege. See, e.g., Guong v. United States, 860 F.2d 1063, 1066-67 (Fed. Cir. 1988) (dismissing claim based upon employment in a covert sabotage group during the Vietnam War). Thus, as a result of the enemy property doctrine and the state secrets privilege, a takings claim based upon a military attack is only likely to survive the pleadings stage in the presumably unusual situation where there was an open and acknowledged assault on property located in, and owned by citizens of, countries at peace with the United States.

In those unusual cases that are able to make it past the pleadings stage, courts have a number of tools at their disposal to protect national security. First, the state secrets doctrine can be applied to bar disclosure and use of any information that threatens to disclose state secrets. Reynolds, 345 U.S. at 10-11. But see id. at 11 (noting that the state secrets privilege is “not to be lightly { p.49 } invoked.” Second, courts can facilitate the “prompt disposition of insubstantial claims” through “firm application of the Federal Rules of Civil Procedure” by requiring replies and more definite answers to clarify the pleadings; directing the sequence of any discovery; and requiring initial resolution of defenses based upon the enemy property doctrine, military necessity, and other doctrines. Crawford-El v. Britton, 523 U.S. 574, 597 (1998). Third, when courts find facts and apply the law, they must afford a “healthy deference to legislative and executive judgments in the area of military affairs.” Rostker v. Goldberg, 453 U.S. 57, 66 (1981). But cf. Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (“An agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is entitled to considerably less deference than a consistently held agency view.”) (quotation omitted).

Unwilling to rely on these tools in dealing with this case, the lower court was forced to dismiss plaintiffs’ claim by adopting broad new limitations on the Takings Clause that create potential unfairness and invite Executive abuse. For example, there is obviously a great risk of mistake in “enemy” designations, particularly in our global war on secretive terrorist organizations. Even under the best of circumstances, intelligence-gathering is far from an exact science, and, as the recent report from the Department of Justice’s Inspector General demonstrates, the Government often errs in identifying terrorists. See U.S. Dep’t of Justice, { p.50 } Office of the Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks {press release 14kb.pdf, contents 15kb.html, full text 13561kb.pdf} (June 2003). In holding that a President’s designation of “enemy property” and of “enemies” is conclusive because of the President’s war-making powers, the lower court has deprived individuals injured by these errors of any redress under the Takings Clause and possibly other constitutional guarantees as well. So doing, the lower court has also opened the door to conscious misuse of such designations. The annals of American history are not free from instances in which claims of military necessity have been cynically made for political advantage, see Sterling, 287 U.S. at 387, 400-02 (seizing oil wells based upon declaration that surrounding territories were in a state of insurrection), or colored by irrational prejudice, see, e.g., Korematsu v. United States, 323 U.S. 214 (1944). Thus, the sweeping propositions adopted below to dispose of this case come at a cost.

Accordingly, the proper solution in this unusual case is not to adopt unwise rules to avoid even considering plaintiffs’ claim on its merits, but instead to let the judicial process run its course. If the Government believes, contrary to plaintiffs’ allegations, that the El-Shifa plant was enemy property or is subject to some other defense such as military necessity, it should be required to respond to the complaint, state its current belief, and, where appropriate, submit evidence in { p.51 } accordance with the rules and procedures of the Court of Federal Claims. The kind of evidentiary showing required may, of course, be influenced by the nature of the defense, any privileges claimed by the Government, and any deference due its positions — issues best considered in the first instance by the lower court. Such issues may not arise, however, if the Government does not dispute plaintiffs’ contention that the El-Shifa plant was not in fact enemy property but innocent private property. As previously noted, plaintiffs believe this is a significant possibility in light of the Government’s prior statements, its failure to defend the freezing of Mr. Idris’ assets, and the careful way in which the Government avoided stating its current views below.

Although a degree of judicial deference is warranted in areas involving terrorism and national security, courts need not, and cannot, abdicate their responsibility to enforce the requirements of the Constitution upon the Executive Branch. As the Supreme Court recognized shortly after an even greater threat to the nation than we now face, even in war, the Executive Branch cannot be permitted to “substitute military force for and to the exclusion of the law” without destroying the very liberty that is the ultimate goal of the Constitution and our government. Ex parte Mulligan, 71 U.S. (4 Wall.) 2, 124 (1866). “In peace or in war it is essential that the Constitution be scrupulously obeyed....” Lichter v. United States, 334 U.S. 742, 779 (1948). { p.52 }


For the reasons stated above, the judgment entered below should be vacated, plaintiffs’ claim reinstated, and this case remanded for further proceedings.

Respectfully submitted,

Dated: July 18, 2003

Signature: Stephen J. Brogan, by Daniel H. Bromberg


Stephen J. Brogan/DHB
{by Daniel H. Bromberg}
Timothy J. Finn
Jonathan C. Rose
Daniel H. Bromberg
Julia C. Ambrose

Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
Telephone: (202) 879-3939

Attorneys for Plaintiffs-Appellants El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris { p.53 }


Certificate of Service

I hereby certify that, on this 18th day of July, 2003, I caused two (2) copies of the foregoing Brief for Plaintiffs-Appellants to be served via U.S. mail, first class, postage prepaid, upon:

Peter H. Oppenheimer, Esq.
Environment and Natural Resources Division
United States Department of Justice
P.O. Box 4390
Ben Franklin Station
Washington, D.C. 20044-4390

I also hereby certify that on this 18th day of July, 2003, I caused an original and eleven (11) copies of the foregoing Brief for Plaintiffs-Appellants to be filed, via hand delivery, in the Office of the Clerk, United States Court of Appeals for the Federal Circuit.

Signature: Daniel H. Bromberg



{ Daniel H. Bromberg }
Attorney for Plaintiffs-Appellants


This footnote appears entirely on the same page with its text reference.  CJHjr

 1  The lower court also asserted that plaintiffs could not challenge President Clinton’s designation of the El-Shifa plant as a chemical weapons facility without “strip[ping] the Complaint of the threshold requirements for a valid takings cause of action” because “the legitimacy or authority of the Government’s actions must be conceded in takings proceedings.” JA 23, 25 {sic: JA 25, 23} (emphasis added). This is incorrect. As this Court has held, only the authority of the action need be acknowledged to state a takings claim, and a claim may therefore be brought based upon conduct that is “legally erroneous” and even unlawful so long as the government officials engaged in the conduct were acting within the scope of their authority. Del-Rio Drilling Programs {78kb.html, 41kb.html}, 146 F.3d at 1362.


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

By CJHjr: Converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting, boxes p.45, p.48, added paragraphing (for ease of reading) marked with this trailing paragraph symbol:  ¶.

On appeal, from the U.S. Court of Federal Claims.

This 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: 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: 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.


Posted Oct. 17 2003. Updated April 10 2008.


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