ORAL ARGUMENT HELD ON APRIL 7, 2008

No. 07-5174

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

________________

EL-SHIFA PHARMACEUTICAL INDUSTRIES COMPANY ET AL.,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Columbia (D.D.C. No. 06cv0217 (JR))

PETITION FOR REHEARING AND REHEARING EN BANC STEPHEN J. BROGAN

TIMOTHY J. FINN CHRISTIAN G. VERGONIS KATHERINE E. STERN JONES DAY 51 Louisiana Avenue, N.W. Washington, DC 20001 (202) 879-3939 (202) 626-1700 (fax) Counsel for Plaintiffs-Appellants

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to Circuit Rules 26.1, 28(a)(1) and 35(c), Appellants certify as follows:

A. Parties and Amici

Parties appearing in the district court were El-Shifa Pharmaceutical Industries Company

(“El-Shifa”) and Salah El Din Ahmed Mohammed Idris, plaintiffs, and the United States of

America, defendant. Those same parties are appearing in this Court as, respectively, Plaintiffs-

Appellants and Defendant-Appellee. No amici have appeared before the district court or this

Court.

El-Shifa is a corporation organized under the laws of Sudan that owned and operated the

El-Shifa pharmaceutical plant prior to its destruction in 1998. El-Shifa has no corporate parent,

and no publicly held corporation has a 10% or greater ownership interest in El-Shifa.

B. Rulings Under Review

The rulings under review are the district court’s memorandum opinion and order dated

November 29, 2005, dismissing the complaint for lack of subject-matter jurisdiction, El-Shifa

Pharmaceutical Industries Co. v. United States, 402 F. Supp. 2d 267 (D.D.C. 2005) (Roberts, J.)

(A48-A66), and the district court’s unreported memorandum order dated March 28, 2007,

denying Appellants’ motion to alter judgment, El-Shifa Pharmaceuticals Industries Co. v. United

States, No. 01-731, 2007 WL 950082 (D.D.C. Mar. 28, 2007) (Roberts, J.) (A71-A75).* The

decision by a divided panel of this Court affirming the judgment below is dated March 27, 2009,

and reported at 559 F.3d 578.

* Citations to “A__” refer to pages of the Appendix filed with this Court on January 18,

2008.

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C. Related Cases

This case was not previously before this Court or any other court. A related case, in

which Plaintiffs-Appellants unsuccessfully pursued a claim for just compensation under the

Takings Clause, is El-Shifa Pharmaceutical Industries Co. v. United States, 378 F.3d 1346 (Fed.

Cir. 2004). Another related case, in which Mr. Idris sought to unfreeze bank accounts blocked

by the U.S. Department of the Treasury, was dismissed as moot after the Treasury Department

unblocked Mr. Idris’s accounts. See Idris v. Dep’t of Treasury Office of Foreign Asset Control,

No. 1:99-cv-00472 (D.D.C. filed Feb. 26, 1999).

TABLE OF CONTENTS

Page

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES.................................... i

TABLE OF AUTHORITIES ........................................................................................................ iv

RULE 35 STATEMENT ............................................................................................................... 1

BACKGROUND ........................................................................................................................... 1

ARGUMENT................................................................................................................................. 4

I. THE DEFAMATION CLAIM IS JUSTICIABLE............................................................ 6

II. THE PANEL MAJORITY’S RULING CONFLICTS WITH DECISIONS OF THIS COURT AND THE SUPREME COURT................................................................ 8

III. THE PANEL MAJORITY’S RULING HAS FAR-REACHING CONSEQUENCES THAT WARRANT EN BANC REHEARING................................ 13

CONCLUSION............................................................................................................................ 15

CERTIFICATE OF SERVICE .................................................................................................... 16

ADDENDUM (PANEL OPINION)

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TABLE OF AUTHORITIES

Page CASES

Baker v. Carr, 369 U.S. 186 (1962).....................................................................................6, 11, 14 Bond v. United States, 2 Ct. Cl. 529 (1866)...................................................................................10 *Boumediene v. Bush, 128 S. Ct. 2229 (2008) .............................................................................1, 9 *Chai v. U.S. Department of State, 466 F.3d 125 (D.C. Cir. 2006) .................................................8 DKT Memorial Fund, Ltd. v. Agency for International Development,

810 F.2d 1236 (D.C. Cir. 1987) ...........................................................................................6 El-Shifa Pharmaceuticals Industries Co. v. United States,

559 F.3d 578 (D.C. Cir. 2009) ...............................................3, 4, 5, 8, 9, 10, 11, 12, 13, 14 Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006).....................................................6, 7 Halperin v. Kissinger, 807 F.2d 180 (D.C. Cir. 1986) ..................................................................15 ∗Hamdi v. Rumsfeld, 542 U.S. 507 (2004).................................................................................9, 10 Harrison v. United States, 6 Ct. Cl. 323 (1870) ............................................................................10 *Hutchinson v. Proxmire, 443 U.S. 111 (1979) .............................................................................13 Japan Whaling Association v. American Cetacean Society, 478 U.S. 221 (1986)..........................6 *Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) ...............................8, 14 Nixon v. United States, 506 U.S. 224 (1993) .................................................................................15 *Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007), rev’d sub nom.

on other grounds, Munaf v. Geren, 128 S. Ct. 2207 (2008) ..........................................9, 10 *Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) ........................................................................1, 9 *People’s Mojahedin Organization of Iran v. U.S. Department of State,

182 F.3d 17 (D.C. Cir. 1999) .........................................................................................7, 11

∗ Authorities upon which Appellants chiefly rely are marked with asterisks.

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TABLE OF AUTHORITIES (continued)

Page

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*Rasul v. Bush, 542 U.S. 466 (2004)................................................................................................9 Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005)...............................................................6, 7 *Von Zedtwitz v. Sutherland, 26 F.2d 525 (D.C. Cir. 1928) ....................................................10, 11 *Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008), petition for cert. filed on other

grounds, 77 U.S.L.W. 3506 (U.S. Feb. 17, 2009) (No. 08-1043) ...............1, 5, 7, 9, 12, 13

STATUTES 5 U.S.C. § 702..................................................................................................................................3

MISCELLANEOUS Abuse of Power: The New Nixon Tapes (Stanley I. Kutler ed. 2000)............................................14 Brief of U.S., Rasul v. Bush, No. 03-334, 2004 WL 425739 (U.S. Mar. 3, 2004) ..........................9 Adam Liptak, Atomic Scientist Settles Privacy Suit Against U.S.,

N.Y. Times, June 2, 2006 ..................................................................................................14 Reno Apologizes to Ex-Suspect in Bombing, N.Y. Times, Aug. 1, 1997, at A10..........................14 Scott Shane & Eric Lichtblau, Scientist Is Paid Millions by U.S. in Anthrax Suit, N.Y.

Times, June 28, 2008, at A1 ..............................................................................................14

RULE 35 STATEMENT

In this defamation case, the panel majority held that the political question doctrine

categorically bars judicial review of statements by government officials offered in purported

justification of a prior unreviewable battlefield decision. In dissent, Judge Ginsburg called this

proposition “novel and frightening” and noted that it “ignores Supreme Court precedent.” The

Court should grant rehearing en banc for the following reasons:

1. Consideration by the full court is necessary to secure and maintain uniformity of

the court’s decisions because the panel majority’s holding (a) conflicts with decisions of the

Supreme Court and this Court permitting judicial review of statements offered in justification of

prior unreviewable battlefield decisions, see, e.g., Boumediene v. Bush, 128 S. Ct. 2229 (2008);

Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), and (b) also conflicts with this Court’s recent

holding that the political question doctrine does not bar “challenge[s to] disclosures made by

high-level executive branch officials when speaking with the press” even though the disclosures

might “implicate[] national security,” Wilson v. Libby, 535 F.3d 697, 704 (D.C. Cir. 2008),

petition for cert. filed on other grounds, 77 U.S.L.W. 3506 (U.S. Feb. 17, 2009) (No. 08-1043).

2. This case involves questions of exceptional and far-reaching importance: whether

courts have any role in reviewing knowingly false accusations offered in purported justification

of prior unreviewable conduct, and whether official misconduct is nonjusticiable solely because

it was allegedly motivated by military, national-security or foreign-policy objectives.

BACKGROUND

On August 20, 1998, President Clinton ordered, and U.S. forces executed, a cruise-

missile strike on the El-Shifa pharmaceutical plant in Sudan. A9. As the President and other

officials explained to the public that day, the United States launched the attack because it

believed that El-Shifa was a “Sudanese Government-controlled facility” financed by Osama bin

Laden and “involved in the production of chemical weapons agents including precursor

chemicals for [nerve gas].” A11, A17.

The decision to destroy the plant was met by a firestorm of criticism, as journalists

quickly uncovered substantial, readily available evidence that El-Shifa was a legitimate,

privately owned pharmaceutical plant that provided critical medicines, lacked any ties to bin

Laden and could not have been involved in the production of chemical weapons. A18–A21.

One publication noted the “growing consensus” that American intelligence had tragically erred.

A20. Because the attack occurred just days after President Clinton’s grand jury testimony on the

Monica Lewinsky matter, there was also widespread speculation that the President launched the

attack to divert attention from his embarrassing personal and political problems. A21, A70.

In the face of this mounting criticism and to stave off further embarrassment to the

administration, government officials reformulated the justification for the attack, telling reporters

that Appellant Salah Idris, whom the government had since learned was the plant’s actual owner,

was “a partner with” and a “front man or agent for” Osama bin Laden and “a financial supporter”

of the terrorist groups Islamic Jihad and the National Islamic Front. A23–A24. According to the

officials, these allegations about Mr. Idris, an otherwise reputable Middle Eastern businessman

(A6, A8, A18, A25), were based on “[n]ew evidence obtained since the attack.” A23.

Consistent with these allegations, the U.S. Treasury Department froze Mr. Idris’s assets. A25.

In fact, these allegations were false (A24) and made with knowledge of their falsity or

with reckless disregard for their truthfulness (A32). As Richard Clarke, then the United States’

chief counter-terrorism official, subsequently admitted, the intelligence “never implicated Mr.

Idris . . . in any involvement with Osama bin Laden nor any terrorist activities.” A46–A47; see

also A70. Indeed, when Mr. Idris sued to unfreeze his assets, the Treasury Department

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responded by unblocking the accounts, thereby conceding and mooting the litigation. A25.

Because the government’s accusations damaged his reputation in the international

business community, Mr. Idris filed a defamation claim against the United States seeking

equitable relief, including a declaration that the accusations were false. A32–A33.1 The district

court dismissed the defamation claim as barred by sovereign immunity. A56. But see 5 U.S.C.

§ 702 (waiving sovereign immunity for claims “seeking relief other than money damages”).

This Court affirmed on the alternative ground that the defamation claim is nonjusticiable

under the political question doctrine. See El-Shifa Pharm. Indus. Co. v. United States, 559 F.3d

578, 582 (D.C. Cir. 2009). The panel majority reasoned that the doctrine bars judicial review of

“the President’s battlefield decisions,” and that the defamation claim presents questions

“‘inextricably intertwined’ with the underlying decision to attack the [plant].” Id. at 583.

Specifically, the majority asserted, the district court would need to determine the truth or falsity

of the government’s statements about Mr. Idris, “meaning a judicial decision for the plaintiffs

would directly contradict the Clinton Administration’s ultimate stated justification for launching

the missile strike.” Id. at 584–85. It is purportedly of no moment that the defamatory

justification “came after” the attack, id. at 585, and was based on “[n]ew evidence obtained since

the attack” (A23–A24), because “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.” 559 F.3d at 585 (emphasis added). Indeed, “[t]he making of such

justifications is itself a policy decision that cannot be separated from the conduct of foreign

1 Appellants also sought damages under the Federal Tort Claims Act (“FTCA”) for the

destruction of the plant under theories of negligence and trespass, as well as a declaration that the government violated international law by failing to compensate them after learning the plant had been targeted in error. A29–A31, A33. Because of an intervening change in applicable law, see Br. of Appellants at 11 n.4, Appellants did not pursue their FTCA claims on appeal.

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relations” and is therefore insulated from judicial review by the political question doctrine. Id.

Judge Ginsburg dissented. He noted that, because the complaint alleges that the

defamatory statements were post hoc justifications having nothing to do with the decision to

attack the plant, the majority opinion must mean that all public justifications for military action

are themselves strategic military and foreign-policy decisions categorically insulated from

judicial review. Id. at 588-89 (dissenting op.) This proposition, Judge Ginsburg observed, “is

not only novel and frightening, but ignores Supreme Court precedent.” Id. at 590. In particular,

the pan opinion conflicts with a “clear line of cases in which [the Supreme Court and the D.C.

Circuit] have heard, without constitutional qualms, an individual’s statutory challenge to his

designation as an enemy combatant, thereby supposedly ‘becoming arbiter of the President’s

battlefield actions.’” Id. at 591.

ARGUMENT

As Judge Ginsburg recognized, the panel majority’s holding that the Executive Branch’s

public justifications for prior military actions and battlefield decisions are always unreviewable

political questions is “novel and frightening” and “ignores” precedent. It is impossible to

reconcile this holding with the many cases permitting judicial review of what the panel majority

calls the “ultimate stated justification” for an unreviewable military action. Principal among

those are this Court’s and the Supreme Court’s post-9/11 detainee cases affirming the propriety

of judicial review of the accuracy of the “ultimate stated justification” for the battlefield decision

to capture and detain a particular suspect. The issue is judicially cognizable in those cases—as it

is in this one—because it raises a straightforward question of fact that can be resolved without

intruding or passing judgment upon national-security policy or the reasonableness of the

President’s initial military decision. The panel majority’s ruling also conflicts with this Court’s

recent holding that the political question doctrine does not bar challenges to “disclosures made

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by high-level executive branch officials when speaking with the press,” even where those

disclosures relate to the President’s decision to initiate military action and may “implicate[]

national security.” Wilson v. Libby, 535 F.3d 697, 704 (D.C. Cir. 2008).

Even apart from these conflicts, the far-reaching consequences of the panel majority’s

decision makes this an exceptional case warranting en banc review. By holding nonjusticiable

an after-the-fact maligning of an individual that is related to but discrete from prior discretionary

military action, the decision dramatically expands the political question doctrine and fences off

from judicial review a wide swath of potentially abusive government conduct. While the

political question doctrine has long barred judicial interference with military action conducted by

the Executive Branch, it has never prevented the courts from considering the legality of

subsequent executive misconduct—such as the imprisonment, harassment or slandering of

unpopular groups, whistleblowers or political opponents—simply because that conduct

implicates justifications for the original military action.

Perhaps even more troubling than the holding is the panel majority’s reasoning, which

asserts that courts may not review any executive action taken “in part at least, with strategic

military, national security, or foreign policy objectives in mind.” 559 F.3d at 585. This focus on

the purpose of the challenged action, rather than on the nature and posture of the particular

question posed, signals a breathtaking expansion of the political question doctrine, as all sorts of

traditionally reviewable government misconduct may now be insulated from review if said to be

undertaken for reasons of “national security.” Moreover, the panel majority found such

objectives present here based on no more than its own speculation and the government’s ipse

dixit assertions—i.e., the court precluded adjudication of the fact-bound question of the officials’

intent in maligning Mr. Idris by assuming the answer to that very question. Presumably, in

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future cases, the government similarly will be able to obtain dismissal simply by asserting such

policy objectives in a motion to dismiss. Of course, the ease with which the government can

articulate a national security rationale in time of war goes without saying. This drastic expansion

of the political question doctrine should not be undertaken absent review by the full court.

I. THE DEFAMATION CLAIM IS JUSTICIABLE

As “a function of the separation of powers,” Baker v. Carr, 369 U.S. 186, 210 (1962), the

political question doctrine prohibits courts from making “policy choices and value

determinations constitutionally committed for resolution to the halls of Congress or the confines

of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230

(1986); see also Baker, 369 U.S. at 217. Because the doctrine is one of “political questions” not

“political cases,” its application requires a “discriminating analysis of the particular question

posed, in terms of the history of its management by the political branches, of its susceptibility to

judicial handling in the light of its nature and posture in the specific case, and of the possible

consequences of judicial action.” Baker, 369 U.S. at 211–12.

While the doctrine often arises in the context of foreign policy, “it is error to suppose that

every case or controversy which touches foreign relations lies beyond judicial cognizance.” Id.

at 211. Rather, the doctrine only precludes “attacks on foreign policymaking”—i.e., challenges

to “the political and social wisdom of [a particular] foreign policy.” DKT Mem. Fund, Ltd. v.

Agency for Int’l Dev., 810 F.2d 1236, 1238 (D.C. Cir. 1987) (emphasis added). By contrast,

“claims alleging non-compliance with the law are justiciable, even though the limited review that

the court undertakes may have an effect on foreign affairs.” Id.

Prior cases in which this Court has applied the political question doctrine demonstrate its

limits. In Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005), and Gonzalez-Vera v.

Kissinger, 449 F.3d 1260 (D.C. Cir. 2006), for instance, the plaintiffs sought to impose liability

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on U.S. officials for their involvement in installing and maintaining Augusto Pinochet as the

dictator of Chile. These claims were nonjusticiable because their adjudication would require

courts to “define the standard for the government’s use of covert operations in conjunction with

political turmoil in another country” and “pass judgment on the policy-based decision of the

executive to use covert action to prevent [the opposition] government from taking power”—in

other words, to bless or condemn the policy of supporting Pinochet and the methods by which it

was carried out. Schneider, 412 F.3d at 197; see also Gonzales-Vera, 449 F.3d at 1264.

By contrast, a lawsuit like this one “challeng[ing] disclosures made by high-level

executive branch officials when speaking with the press” “is not about national security in a

manner requiring application of the political question doctrine.” Wilson, 535 F.3d at 704. 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 (A32), 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 (A23–A24) “had enough information

before [them] to come to th[at] conclusion.” People’s Mojahedin Org. of Iran v. U.S. Dep’t of

State, 182 F.3d 17, 25 (D.C. Cir. 1999). This traditional judicial function can be—and routinely

is—performed in the national-security context without second-guessing any policy choices

committed to the Executive Branch. See id. (reviewing designation of group as foreign terrorist

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organization); Chai v. U.S. Dep’t of State, 466 F.3d 125, 129 (D.C. Cir. 2006) (same); Joint Anti-

Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 139–40 (1951) (plurality op.) (organizations

designated as “subversive” and “Communist” may sue government for defamation).

Application of the political question doctrine is particularly inappropriate in this case

because the defamatory accusations formed no part of the decision to attack the plant: they were

based on “[n]ew evidence obtained since the attack” (A23) and asserted only after the initial

justifications were challenged in the press. See supra p. 2. Indeed, at the time of the attack, the

United States mistakenly believed that the plant was owned by the Sudanese government and

only later learned that it was owned by Mr. Idris. See supra pp. 1–2. Thus, even if the political

question doctrine were somehow broad enough to preclude review of the accuracy of the

government’s actual justifications for military action, it certainly cannot be invoked here (at the

pleadings stage, no less) to preclude review of the veracity of statements alleged to have had

nothing to do with the decision to bomb the plant. See 559 F.3d at 588–89 (dissenting op.) (“the

Court does not really—indeed, it could not reasonably—believe [that] adjudicating the

defamation claim[] would necessarily call into question the President’s decision”).

II. THE PANEL MAJORITY’S RULING CONFLICTS WITH DECISIONS OF THIS COURT AND THE SUPREME COURT

The panel majority held that the defamation claim nevertheless presented a nonjusticiable

political question because the designation of Mr. Idris as a supporter of bin Laden and a financier

of terrorism necessarily related back to the President’s earlier nonjusticiable decision to attack

the El-Shifa plant. This method for ascertaining the justiciability of an issue not only finds no

support in any precedent (see supra Part I), but also directly and irreconcilably conflicts with

numerous decisions of this Court and the Supreme Court expressly rejecting the applicability of

the political question doctrine to lawsuits challenging the factual basis for the government’s

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designation of persons (or property) as enemies of the state (or enemy property), even where

those designations arise out of, relate back to and serve as the “ultimate stated justification for”

(559 F.3d at 585) prior nonjusticiable military and foreign-policy decisions. The panel opinion

also directly conflicts with this Court’s decision in Wilson v. Libby, which held justiciable a

lawsuit “challeng[ing] [national-security-related] disclosures made [to the press] by high-level

executive branch officials” seeking to justify the war in Iraq. 535 F.3d at 704.

1. After September 11, 2001, the government argued that “the ‘enemy’ status of

aliens captured and detained during war is a quintessential political question on which the courts

respect the actions of the political branches.” Br. of U.S. at 35, Rasul v. Bush, No. 03-334, 2004

WL 425739 (U.S. Mar. 3, 2004); see also id. at 37 (because “active fighting is still ongoing in

Afghanistan and elsewhere . . . this litigation implicates political questions that the Constitution

leaves to the President”). In a series of cases, this Court and the Supreme Court unequivocally

rejected these arguments and endorsed judicial review of enemy-status determinations relating to

persons seized by U.S. military forces on active battlefields. See Boumediene v. Bush, 128 S. Ct.

2229 (2008); Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004);

Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008); Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007),

rev’d sub nom. on other grounds, Munaf v. Geren, 128 S. Ct. 2207 (2008).

The petitioner in Hamdi, for instance, had been detained by government officials in the

course of the United States’ military operations in Afghanistan, and the “sole evidentiary

support” for his ongoing detention was the affidavit of an official “familiar with the facts and

circumstances related to [Hamdi’s] capture . . . and his detention by military forces.” 542 U.S. at

510, 512. While the legality of the battlefield capture was obviously nonjusticiable, the Supreme

Court nevertheless rejected the government’s contention that “separation of powers principles”

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barred judicial review of the accuracy of the government’s subsequent classification of Hamdi as

an “enemy combatant” to justify his continued imprisonment. Id. at 535–36. Separation of

powers, the Court noted, would be “turn[ed] . . . on its head” were the judiciary to be precluded

from assessing “the factual basis for” the enemy-combatant designation. Id. at 536–37. As this

Court subsequently held, Hamdi unequivocally rejects the contention that the political question

doctrine “preclude[s] courts from inquiring into the factual basis of an enemy combatant

designation,” even where the designation is connected to and serves as justification for a capture

and detention on a foreign battlefield. Omar, 479 F.3d at 10.

These rulings are hardly novel. Courts routinely reviewed challenges to enemy and

enemy-property designations offered to justify unreviewable battlefield decisions during the

Civil War. See, e.g., Bond v. United States, 2 Ct. Cl. 529, 535 (1866); Harrison v. United States,

6 Ct. Cl. 323 (1870). And this Court similarly exercised jurisdiction over challenges to enemy-

property designations made by the President during World War I. See Von Zedtwitz v.

Sutherland, 26 F.2d 525, 527 (D.C. Cir. 1928).

The common principle upheld by these cases is that judicial review of facts offered after

a battlefield seizure of persons or property to justify continued imprisonment or failure to

compensate in no way interferes with executive policy-making or its implementation, even

though “a judicial decision for the plaintiffs would directly contradict the . . . . ultimate stated

justification for” (559 F.3d at 584–85) the original seizure. There is, moreover, no basis for

distinguishing these precedents from the instant case, and the panel majority did not even attempt

to offer one. It simply asserted that these cases (unlike this one) did not involve decisions

textually committed to the Executive Branch, id. at 585–86, which, as Judge Ginsburg noted,

“merely restates” in circular fashion the Court’s conclusion, id. at 591 (dissenting op.). In fact,

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those cases involve the exact same judicial inquiry as this one does: in each one of them, the

“particular question posed” (Baker, 369 U.S. at 211) is the accuracy of the government’s

allegation that a particular individual is an enemy of the United States engaged in terrorism-

related activities. The panel opinion does not—and cannot—explain why that question is

justiciable in some cases but not in others.2

Indeed, the defamatory allegations at issue here were the basis for Treasury Department’s

decision to freeze Mr. Idris’s assets. See supra p. 2. What if the government had not unfrozen

those assets in response to Mr. Idris’s lawsuit? See supra p. 3. Would Mr. Idris’s challenge to

the asset freeze have been justiciable under Von Zedtwitz, or would it have been nonjusticiable

because, like the defamation claim, it requires judicial inquiry into the “ultimate stated

justification” for the decision to attack the plant—the claim that Mr. Idris was a supporter of bin

Laden? Or what if, instead of publicly slandering him, the government had imprisoned Mr. Idris

on the basis of an affidavit parroting the allegations made against him through the press? Would

a legal challenge to this detention have been justiciable under Hamdi and the other enemy-

combatant cases, or would it have been nonjusticiable because, as with the defamation claim, a

court “could not avoid the question whether Idris was in fact associated with bin Laden, meaning

a judicial decision for [him] would directly contradict the Clinton Administration’s ultimate

stated justification for launching the missile strike” (559 F.3d at 584–85)? The panel majority’s

opinion and the key precedents provide contradictory answers. En banc review is required to

restore doctrinal coherence to this area of the law.

2 It cannot be because some of the cases involved specific congressional authorizations

for judicial review. The political question doctrine derives from “separation of powers,” Baker, 369 U.S. at 210, and Congress therefore cannot authorize judicial review of otherwise nonjusticiable Executive Branch conduct. See, e.g., People’s Mojahedin, 182 F.3d at 23–24 (determining justiciability despite express statutory authorization for judicial review).

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2. The panel majority’s decision also conflicts with precedent holding that

statements to the press seeking to justify prior unreviewable acts are justiciable.

Like this case, Wilson v. Libby arose out of a media firestorm questioning a President’s

decision to initiate military action. In Wilson, journalists, reporting on information provided by

Joseph Wilson, questioned the accuracy of President Bush’s contention that the war in Iraq was

justified by evidence that Saddam Hussein had sought to obtain uranium from Africa. 535 F.3d

at 701–02. Executive Branch officials sought to discredit Wilson and thereby bolster the case for

the war by telling the press about Wilson’s marriage to covert CIA operative Valerie Plame. Id.

at 702. When Wilson and Plame sued for injuries resulting from the disclosure of her identity,

the government contended that the lawsuit was barred by the political question doctrine because

it “implicate[d] foreign-policy and national-security decisions that are reserved to the Executive

Branch.” Id. at 703–04. This Court disagreed, holding that a lawsuit challenging “disclosures

made by high-level executive branch officials when speaking with the press” does not challenge

“foreign policy or national security decisions entrusted to the Executive Branch.” Id. at 704.

Although “[t]he disclosures may have implicated national security,” “the lawsuit itself is not

about national security in a manner requiring application of the political question doctrine.” Id.

Wilson and this case are indistinguishable. In both, the government sought to bolster its

justification for unreviewable military action through anonymous and allegedly wrongful

“disclosures made by high-level executive branch officials when speaking with the press.” Id.

And in both, the government claimed that the disclosures were made “with strategic military,

national security, or foreign policy objectives in mind.” 559 F.3d at 585. Indeed, national-

security objectives were far more apparent and compelling in Wilson, where officials were

seeking to justify an ongoing war and not (as here) a discrete one-time military strike that had

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concluded by the time the press statements were made. Especially because the parties did not

have the opportunity to address Wilson—it was decided four months after oral argument in this

case—en banc review is needed to reconcile the two cases’ disparate holdings.

The panel majority’s treatment of after-the-fact statements is similarly at odds with

Hutchinson v. Proxmire, 443 U.S. 111 (1979). Hutchinson involved the Speech and Debate

Clause, which like the political question doctrine, prevents courts from passing judgment on acts

constitutionally committed to the Legislative Branch. The Supreme Court held that although a

senator could not be sued for defamatory statements in a speech given on the floor of the Senate,

he nevertheless “may be held liable for republishing [those] defamatory statements” in press

releases and newsletters. Id. at 127–28. Like Wilson, but contrary to the panel majority’s

opinion in this case, Hutchinson recognizes and deems constitutionally significant the

fundamental difference between the underlying nonjusticiable action and “relat[ed]” conduct and

statements (id. at 131) that “tell the public about [the nonjusticiable] activities” (id. at 133).

III. THE PANEL MAJORITY’S RULING HAS FAR-REACHING CONSEQUENCES THAT WARRANT EN BANC REHEARING

Even on its narrowest possible reading, the panel majority’s opinion categorically

precludes courts from assessing the validity of accusations made by the government against its

own citizens and other individuals whenever the accusations are claimed to be a justification for

a prior military, national-security or foreign-policy decision. This is a “frightening” proposition,

559 F.3d at 590 (dissenting op.), because the government’s incentives to dissemble and lie—and

to falsely malign whistleblowers, political opponents, unpopular groups and innocent

bystanders—are at their zenith where (as in this case) officials seek to protect themselves from

political fallout by covering up embarrassing errors and missteps in politically sensitive areas.

History is filled with such abuses, from the McCarthy-era Attorney General’s List of Subversive

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Organizations, see Joint Anti-Fascist Refugee Comm., 341 U.S. at 126–29, to President Nixon’s

efforts to “destroy” political enemies like Daniel Ellsberg “in the press,” which the President

“rationalized . . . as a justifiable ‘national security’ operation” related to the Vietnam War, Abuse

of Power: The New Nixon Tapes xviii (Stanley I. Kutler ed. 2000), to more recent examples like

the leaked false charges in national-security incidents involving Steven Hatfill, see Scott Shane

& Eric Lichtblau, Scientist Is Paid Millions by U.S. in Anthrax Suit, N.Y. Times, June 28, 2008,

at A1, Richard Jewell, see Reno Apologizes to Ex-Suspect in Bombing, N.Y. Times, Aug. 1,

1997, at A10, and Wen Ho Lee, see Adam Liptak, Atomic Scientist Settles Privacy Suit Against

U.S., N.Y. Times, June 2, 2006.

Perhaps even more troubling than the holding is the panel majority’s reasoning that the

government’s generalized assertion that challenged conduct was motivated by “military, national

security or foreign policy objectives” is sufficient to trigger application of the political question

doctrine. 559 F.3d at 585. Heretofore, the political question doctrine required a “discriminating

analysis of the particular question posed” in order to ensure that jurisdiction was ousted only

where courts would be required to make a “policy determination of a kind clearly for nonjudicial

discretion” (like the decision to go to war or to overthrow a foreign government). Baker,

369 U.S. at 211, 217. Shifting the focus from this inquiry into the nature of the question to an

inquiry into the purposes and objectives of the challenged governmental action portends an

exponentially greater and less predictable application of the political question doctrine, and

opens a new avenue for the government to use “military or war objectives” to shroud abusive

conduct from judicial review. Under the panel opinion, even conduct that is traditionally

reviewable, such as run-of-the-mill torts and non-discretionary acts like the violation of an

unambiguous statutory directive, will now be nonjusticiable if the government can muster (to the

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court’s satisfaction) an argument that the challenged conduct was motivated by national-security

“objectives.” As a result, all sorts of abusive governmental conduct previously understood to be

reviewable in court—such as the unlawful use of wiretaps for alleged national-security purposes,

see, e.g., Halperin v. Kissinger, 807 F.2d 180, 182 (D.C. Cir. 1986) (describing Nixon

Administration’s use of illegal wiretaps “to stem what they perceived to be an alarming deluge of

classified-information leaks”)—is potentially shielded from review by the decision in this case.

In sum, while certain policy decisions are rightly committed to the Executive Branch, it is

something else entirely to shield from judicial review all misconduct supposedly motivated by

national-security or foreign-policy concerns. Moreover, because the political question doctrine

is not limited to foreign affairs, or to the Executive Branch, see, e.g., Nixon v. United States,

506 U.S. 224 (1993), the panel opinion could have broad and unforeseeable consequences in

other areas as well. Whether the political question doctrine should loom this large in abuse-of-

power cases is an exceptionally important question warranting review by the full Court.

CONCLUSION

For the foregoing reasons, this Court should grant rehearing en banc.

Dated: May 8, 2009 Respectfully submitted,

/s/ Stephen J. Brogan

Timothy J. Finn Christian G. Vergonis Katherine E. Stern JONES DAY 51 Louisiana Avenue, N.W. Washington, DC 20001 (202) 879-3939 (202) 626-1700 (fax) Counsel for Plaintiffs-Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of May, 2009, two copies of the foregoing PETITION

FOR REHEARING AND REHEARING EN BANC were served upon the following counsel by

dispatch to a commercial carrier for next-business-day delivery:

Dana J. Martin, Esq. C. Frederick Beckner III Mark B. Stern, Esq. United States Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

Counsel for Defendant-Appellee

/s/ Christian G. Vergonis