By Haggai Carmon

In 1998, the United States under the Clinton Administration bombed the Sudanese pharmaceutical plant El-Shifa, after which they announced that the plant’s owner was collaborating with Osama bin Laden and working with terrorists to produce chemical weapons onsite and finance terrorist activity. The bombing met fierce criticism in the media, as many believed that the plant was a legitimate one, manufacturing critical medicines.

Salah El Din Ahmed Mohammed Idris, the plant owner, and the El-Shifa Pharmaceutical Industries Company sued the United States for defamation, claiming that the U.S. mislabeled them as terrorists because they needed justification for the bombing.

Originally dismissed by a federal district court on the basis of sovereign immunity, the same decision was arrived at on appeal by a D.C. Circuit court this March, but for different reasons. The Court said it lacked jurisdiction over the case because of the political questions involved. Under the political question doctrine, it could not review the claim because it was “inextricably intertwined” with a military decision made by the executive branch. “We have no trouble concluding that the President’s public justifications for discrete military action are always offered, in part at least, with strategic military, national security, or foreign policy objectives in mind. The making of such justifications is itself a policy decision that cannot be separated from the conduct of foreign relations and the exercise of the war power that it explains.”

Jones Day, the firm representing the plaintiffs, has been trying to revive the case, arguing that in this case (as in precedent), the political question doctrine should not be applicable because the Court is not being asked to review the executive military decision itself but rather the justification publicly offered following the act. (It was in fact, the second justification offered, as the Clinton Administration originally announced on the day of the bombing that the plant was state-run and financed by bin Laden to manufacture chemical weapons).

The act may be nonjusticiable, but the alleged defamation following the act can and should be reviewed by the Court, argues Jones Day. The political question doctrine, “has never prevented the courts from considering the legality of subsequent executive misconduct–such as the imprisonment, harassment, or slandering of unpopular groups, whistle-blowers or political opponents–simply because that conduct implicates justifications for the original military action.”

“Mr. Idris’s defamation claim does not require the courts to pass judgment on the Executive Branch’s foreign policies (i.e., the President’s decision to target al Qaeda-affiliated chemical weapons plants), its methods to implement those policies (i.e., the decision to shut down those plants through the use of unilateral military force rather than international diplomacy), or even the standard of care used in implementing those policies (i.e., the diligence of the information-gathering that led to the targeting of El-Shifa). Rather, the claim, which alleges knowing falsehoods or reckless disregard for the truth, simply requires a court to determine whether the officers who accused Mr. Idris of partnering with Osama bin Laden and providing financial support to Islamic Jihad and the National Islamic Front had enough information before [them] to come to th[at] conclusion.”

The Plaintiff further argues that not hearing the case based on the political question doctrine would set a dangerous precedent, as it would mean that any justification for a prior military, national-security or foreign-policy decision, whether making accusations against U.S. or foreign individuals or bodies, would not be justiciable.

The U.S. Court of Appeals for the D.C. Circuit has agreed to an en banc rehearing.

The only time a political question was raised in an Israeli court in connection with sovereign acts was in Aronov v. U.S. The plaintiffs sought damages as a result of alleged acts of the U.S. Embassy in Israel. They conceded that the acts themselves are protected by sovereign immunity, and therefore sought only consequential damages. I represented the United States and argued that since the act was political and protected by the political question doctrine, then there could be no remedy, because the Court cannot question the act of the Embassy. The Court adopted the U.S. arguments and dismissed the complaint on that and other grounds. No appeal was filed.