24 Apr The Ever Murky Political Question Doctrine – A Useful Shield for U.S. Foreign Policy
Last week, the D.C. Circuit issued an important opinion applying the always controversial “political question” doctrine to dismiss a case challenging U.S. foreign policy actions as a violation of international law. The D.C. Circuit’s development (and revival even) of the political question doctrine signals serious obstacles to attempts by litigants to challenge foreign policy actions of the U.S. government in U.S. courts.
On Friday, the D.C. Circuit invoked the political question doctrine to dismiss a claim against various U.S. government officials for removing an ethnic minority, the Chagossians, from Diego Garcia (in the Indian Ocean) in order to establish a U.S. airbase there in the 1950s. The opinion can be found here. As Roger noted, the Supreme Court recently refused to review a similar D.C. Circuit decision dismissing claims against Henry Kissenger for allegedly directing the overthrow of the Chilean government on (mostly) political question grounds (see Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005)).
The Court interpreted the political question doctrine to bar judicial review, not only of foreign policy decisions, but also of the manner in which such decisions were implemented. Hence, the Court held that courts could not review claims by the plaintiffs that the manner of their removal from Diego Garcia violated customary international law. The Court explains:
If we were to hold that the executive owed a duty of care toward the Chagossians, or that the executive’s actions in depopulating the islands and constructing the base had to comport with some minimum level of protections, we would be meddling in foreign affairs beyond our institutional competence. The courts may not bind the executive’s hands on matters such as these, whether directly—by restricting what may be done—or indirectly—by restricting how the executive may do it.
As the D.C. Circuit itself admits, the political question doctrine is notoriously murky. But it is worth noting that the Court has interpreted the doctrine so broadly that even when a U.S. foreign policy decision arguably violates customary international law, that decision is completely insulated from U.s. judicial review. If followed, this approach would seem to prevent any U.S. court from reviewing the legality or propriety of U.S. foreign policy decisions that do not implicate violations of constitutional rights. This isa attractive to me from a normative view, but I’m not sure this is quite right as a doctrinal legal matter.
One final note, the decision was authored by Judge Janice Rogers Brown, a new addition to the D.C. Circuit, well-known libertarian conservative, and likely future nominee to the U.S. Supreme Court. So her views on this and other matters bear watching.