## Facts

- After the August 7, 1998 bombings of U.S. embassies in Kenya and Tanzania, the President ordered missile strikes on August 20, 1998 against a terrorist camp in Afghanistan and a pharmaceutical plant in Sudan owned by El-Shifa Pharmaceutical Industries Co.
- The United States publicly justified the Sudan strike as directed at a facility believed to be associated with al Qaeda and involved in producing materials for chemical weapons.
- El-Shifa and its owner, Salah El Din Ahmed Mohammed Idris, alleged the plant had no connection to terrorism or chemical weapons and that the strike was a mistake.
- Plaintiffs claimed U.S. officials’ public statements tying them to terrorism were false and damaged their reputation and business interests.
- Plaintiffs sought compensation and retractions through administrative channels, but the requests were denied.
- Plaintiffs filed suit asserting tort and international-law-based claims for destruction of property and defamation claims based on official statements.

## Issues

1. Whether federal courts may adjudicate claims for property and reputational harm that require evaluating the factual and legal basis for the President’s decision to use military force abroad and to publicly justify that action.
2. Whether labeling the suit as defamation, negligence, or customary international law avoids dismissal under the political question doctrine.

## Decision

- The en banc D.C. Circuit affirmed dismissal for lack of subject-matter jurisdiction.
- The court held the claims were barred by the political question doctrine because resolving them would require courts to assess the merits of military and foreign-policy judgments underlying the missile strike and its public explanation.
- The bar applied to both the property-destruction theories and the defamation theories because each depended on deciding whether the strike and the government’s stated reasons were correct.
- Although the court unanimously affirmed the dismissal, some judges would have resolved the case on alternative grounds (including jurisdictional and cause-of-action limits) rather than on the political question doctrine.

## Legal Principles

- Under the political question doctrine, claims are nonjusticiable when they require judicial review of matters constitutionally committed to the political branches, particularly decisions concerning the use of military force and foreign affairs.
- Courts lack judicially manageable standards to evaluate strategic, intelligence-based military judgments and the government’s public justification for such actions.
- A plaintiff cannot obtain judicial review of the merits of a foreign military decision by framing the challenge as a private-law cause of action (such as defamation or negligence) if adjudication would still require second-guessing military and foreign-policy determinations.
- There is no judicial “mistake” exception permitting courts to revisit the merits of a presidential decision to conduct a foreign strike on the theory that the factual basis was later disputed.

## Conclusion

The court held that suits seeking damages for the destruction of a foreign facility and reputational harm from official statements were nonjusticiable where liability would turn on evaluating the wisdom and factual predicate of a presidential decision to use military force abroad and to explain that decision to the public.


El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en banc)