In action seeking compensation for destruction of factory in Sudan allegedly associated with Osama bin Laden terrorist network, Federal Circuit confirms that Constitution grants President considerable power to designate enemy property abroad outside limits of Takings Clause
Sabah El Din Ahmed Mohammed Idris (Idris) is a Saudi banker living in Sudan. In 1998, Idris acquired shares in a Sudanese pharmaceutical company, El-Shifa Pharmaceutical Industries Company (hereinafter El-Shifa), located in Khartoum, Sudan. After the August 7, 1998, attacks on U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, by terrorists, U.S. President Clinton ordered U.S. forces to conduct military strikes in Afghanistan and Sudan to disrupt the terrorist network of Osama bin Ladin. The targets included El-Shifa that was allegedly producing an ingredient for nerve gas.
El-Shifa and Idris sought $50 million in damages in the U.S. Court of Federal Claims, arguing that the destruction of the factory constituted a taking of private property for public use within the meaning of the Fifth Amendment to the U.S. Constitution. The Court of Federal Claims entered judgment in favor of the United States, and this appeal resulted. The U.S. Court of Appeals for the Federal Circuit affirms.
The Court first reviews the Government's three original arguments for dismissal of the complaint. First, the Government argued that the Takings Clause does not apply to property owned by non-resident aliens outside the U.S. This claim, however, presents a non-justiciable "political question." The Court disagrees.
Second, the Court sees no merit in the Government's argument that the Court of Federal Claims lacked jurisdiction because this is a tort action alleging that the U.S. President acted negligently in ordering the destruction of the factory. Instead, the Court reads the complaint as alleging a taking. The claim of possible tortious acts by the U.S. does not deprive the Court of jurisdiction.
Third, the Government contended that 28 U.S.C. Section 2502 (the Reciprocity Act) requires plaintiffs in the Court of Federal Claims to show that their home country treats their own nationals and U.S. citizens equally when they bring claims against that government. According to the Government, that is not the case in Sudan. The Court of Federal Claims had heard evidence that U.S. citizens are on equal terms with Sudanese citizens in actions against the Sudanese Government. The fact that, in 1999, the Sudanese government had suspended a clause of the Sudanese Constitution guaranteeing "all people" equal access to the courts does not change this fact.
The Court then turns to the Government's new argument that the Takings Clause does not reach the type of Executive conduct that led to the destruction of the El-Shifa factory. "... [I]t is... true that the government does not avoid the Takings Clause by simply using its military forces as cover for activities that would otherwise be actionable if performed by one of its civilian agencies."
"Military conduct that does not touch on the destruction or appropriation of enemy property can sometimes give rise to a valid takings claim. ... In such cases, the military merely carries out the sovereign's eminent domain prerogative which, under our Constitution, the United States may not exercise without providing just compensation."
"Thus, military takings cases often ask courts to ascertain the precise point at which the military conduct complained of is no longer coextensive with the state's civil power of eminent domain, but rather, enters the zone of conduct, outside the reach of the Takings Clause, where the United States appropriates the property of its enemies. ..." [Slip op. 23-24]
More directly, the issue here is whether the President has the inherent power to designate the private property of an alien abroad as enemy property. Whatever power the President may have in this regard must emanate from the U.S. Constitution. The Executive Powers in the Constitution include the faithful execution of the laws, the power to wage war, and the command of military forces.
"In our view, the President's power to wage war must also necessarily include the power to make extraterritorial enemy property designations because such designations are also an important incident to the conduct of war. As much is borne out of the history of this nation's many declared and undeclared wars, part of which is documented in the cases where courts have applied the enemy property doctrine. The cases teach that the purpose of such designations is almost always to "repel and defeat the enemy' by diminishing the sum of material resources that it has at its disposal to prosecute hostilities against the United States and its citizens."
"Whether the private property destroyed as enemy property is a tank firing rounds at American forces, a bridge the enemy finds necessary to advance to the front, or a commodity, such as oil, imperiled by advancing forces, the aim is the same " to "wage war successfully.' ... We cannot envision how a military commander, much less the Commander-in-Chief, could wage war successfully if he did not have the inherent power to decide what targets, i.e., property, belonged to the enemy and could therefore be destroyed free from takings liability." [Slip op. 48-49]
After reviewing separation of powers principles, the Court concludes "that the appellants may not seek judicial review of the President's designation of the [Sudanese] Plant as enemy property. The appellants' theory of takings liability centers on the alleged inaccuracy of the President's designation of the Plant as enemy property. This must be the case, because as we noted above, if the Plant was in fact the property of al-Qaeda, the appellants would have no claim in takings against the United States for its destruction."
"In essence then, the appellants are contending that the President failed to assure himself with a sufficient degree of certainty that the Plant was in fact a chemical weapons factory, despite his declaration to the contrary that the information he possessed in 1998 indicated al-Qaeda was using it to manufacture chemical weapons ingredients. The appellants would have the Court of Federal Claims in the first instance, and this court on appeal, provide them with an opportunity to test that contention, and in the process, require this court to elucidate the constitutional standards that are to guide a President when he evaluates the veracity of military intelligence."
"We are of the opinion that the federal courts have no role in setting even minimal standards by which the President, or his commanders, are to measure the veracity of intelligence gathered with the aim of determining which assets, located beyond the shores of the United States, belong to the Nation's friends and which belong to its enemies. In our view, the Constitution envisions that the political branches, directly accountable to the People, will adopt and promulgate measures designed to ensure that the President makes the right decision when, pursuant to his role as Commander-in-Chief, he orders the military to destroy private property in the course of exercising his power to wage war."
"Today, we need not decide whether and to what extent the Executive and Legislative branches share that responsibility. We conclude only that the Constitution does not contemplate or support the type of supervision over the President's extraterritorial enemy property designations the appellants request in this case."
"The circumstances here, under which the Plant was targeted and destroyed, strengthen this conclusion. When the President ordered the Plant destroyed, he exercised the "authority ... the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.' Ex parte Quirin, 317 U.S. at 28."
"In 1998, the President determined that the Plant's destruction was a necessary and proper response to "the imminent threat of further terrorist attacks against U.S. personnel and facilities.' ... In his radio address following the strike on the Plant, he maintained that he had "convincing' evidence that the "bin Laden network of radical groups,' was responsible for the then recent attacks on United States embassies in Kenya and Tanzania as well as "compelling evidence that the bin Laden network was poised to strike at [the United States] again.' President's Radio Address, 2 Pub. Papers (Aug. 22, 1998)."
"Under these conditions, where the President's own assessment of the offensive posture of the Nation's enemies overseas leads him to conclude that the Nation is at risk of imminent attack, we cannot find in the Constitution any support for judicial supervision over the process by which the President assures himself that he has in fact targeted that part of the enemy's wealth of property that he thinks, if it were destroyed, would most effectively neutralize the possibility of attack." [Slip op. 53-55]
Citation: El-Shifa Pharm. Inds. Co. v. United States, 2004 WL 1780921 (Fed. Cir. Aug. 11).
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