In El-Shifa Pharmaceutical Industries Co. v. US, the owners of a pharmaceutical factory in Sudan sued the United States after the factory was destroyed an the President announced publicly that the facility had ties to Al-Queda. So it’s een kicking around the courts for a while, with the trial court dismissing the lawsuit on “political question” grounds – basically, that deciding to level a foreign factory, pharmaceutical or otherwise, because it supposedly has ties to Al-Q is a political decision for the President to make, and there’s no way to sue anyone for damages as a result. Now the U.S. Court of Appeals for the D.C. Circuit has affirmed on the same grounds:
The El-Shifa people deny their factory was being used for nefarious Al-Q purposes.
And if that’s true, it’s a terrible shame…but their redress, if they are to have one, can’t be through the courts.
But in this case the decision is that it doesn’t matter if the company was in the right or not; the decision is that the company has no legal recourse. What would your reaction be if someone burned down your home and killed your parents and the courts said that the laws against arson and murder didn’t apply because the government did it?
But this ruling isn’t so much a decision against as saying that people in the position of the owners of the factory have no recourse to the courts. It’s a “political question” so you can’t ask (or at least, if you ask, you won’t get) any settlement from US courts regardless of the rightness or wrongness of your claim.
Is the US’s position still that the factory was up to no good? I saw (Bill) Clinton talk about it a few years ago as an example of a decision that was made incorrectly due to poor intellegence. You’d figure if the at-the-time President is saying it was really an asprin factory, the US gov’t would be on the same page and pay the owners for the damages even without a court saying they have to.
And what specifically did the courts decide was a political judgment? Whether the gov’t should pay damages for bombing an innocuous factory, or whether the factory was innocuous in the first place?
Whether the destruction of the factory violated any US law.
Congress may have some fear that to pay this claim would open a bigger can of worms. There have been allegations that the loss of pharmaceuticals due to the destruction of this factory caused a large number of civilian deaths. I don’t know that anyone’s ever substantiated this, but then again I don’t know if anyone has even investigated it.
No, it’s a recognition that there’s a difference between international conduct under the rubric of war, and normal internal interactions between government and people.
The President made a decision that he had evidence that the factory was producing weapons of mass destruction. He acted in accord with that information, the best he had at the time, and the courts cannot second-guess that call now. If indeed it was wrong, I wouldn’t be opposed to a relief bill through Congress to supply compensation, but we can’t settle this through the courts. Should a jury get to hear which intelligence agents made which estimates, what data they based it on, and decide how reasonable their analyses were?
That’s essentially saying, if the President says it’s in pursuit of a war aim, the courts cannot question that decision. So, if he decided tomorrow that a car factory in Detroit was making cars that might be used by terrorist groups like Al Qaeda, he could order the factory destroyed, without compensation for property damage, loss of life, or personal injury.
Is there a difference? Suppose that a Canadian militia, intent on destroying the U.S., had crossed the Detroit River, taken over the car factory, and were using it to produce armoured cars in pursuit of their war aims. If the US military destroyed the factory, would compensation be due? And if compensation is due, why isn’t it owed to the innocent owners of a factory outside the U.S.?
Not so. The government of the United States is sovereign over Detroit, and the United States District Court there is open for business. There’s a classic Supreme Court decision from shortly after the civil war - I’ll dig up the name and citation later - in which the Supremes made it very clear that the exigencies of war cannot justify the government’s decision to eschew the process of law when the courthouse door are open.
That’s not this case. One cannot sue to shutter the doors of an (alleged) weapons plant in a rogue state. One’s options are limited to persuasion (through negotiation or sanctions), or the use of high explosives.
No, compensation probably wouldn’t be mandated by the courts in this case - because in this case, the normal process of law has ceased to function, and the President would be exercising his constitutionally-mandated war powers to repel invasion. “The Maple-Leaf Scourge has invaded!” is one of those scenarios in which the President’s authority is about as high as it can constitutionally get.
And that’s exactly the right distinction. In Detroit, the factory can be served with a court order, inspected by state and federal officials, and dealth with by process of law. The Sudanese factory was beyond the reach of our courts.
Of course, just to play devil’s advocate, the Sudanese factory was entirely within the reach of Sudanese courts. Which are jokes. But what if they weren’t? That is, what if Sudan had enjoyed, in the 1990s, a functioning judicial system? Or what if the factory had been in, say, Germany, instead of Sudan? Would our own courts insist that we have a legal obligation in that case to seek redress through the other nation’s courts?
My own inclination is that our courts would still insist that this is a political question - that the assessment of judicial independence, competence and honesty lies far outside the expertise of American jurists, and must properly be reserved to the political branches. And I think that’s the right approach - in the real world, the interests of the political branches are closely enough aligned with common sense that this would be unlikely to produce perverse results. If the pharmaceutical factory had been located in Germany, or Sudanese courts were fair and effective, we would have used litigation - military force is risky and dangerous business, after all. And the use of force when the local legal system provides a legitimate, lawful alternative would do bad things to our international standing.
American courts are institutions fundamentally divorced from the Hobbessian state of nature - “red in tooth and claw” - while the international system closely approximates it. I’d submit that, for this reason if nothing else, it’s appropriate for our courts to take a limited (though not nonexistent) role in reviewing foreign policy decisions. (Of course, there comes a point where foreign policy becomes domestic - i.e., when we take prisoners).
So if the Sudanese Government had intelligence that the US Government was planning to bomb a local aspirin factory, it could legally fly a plane into the Capitol?
Yes, it would be a perfectly legal act of war. If the pilot and crew were captured while making the attempt, or after parachuting out of the plane before impact, they could not be tried as criminals. They could, however, be held as prisoners of war for the duration of hostilities between the Sudan and the U.S.
I don’t think the US paid any compensation for bombing the Yugo factory in Serbia during the 1999 Kosovo campaign. Maybe because it wasn’t worth anything and it deserved bombing anyway?