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:
Julian,
Your reference here to the ‘ever murky’ and ‘always controversial’ ‘political question’ doctrine is exemplary and very important. The acknowledgement of same in the opinion itself is on the order of a Freudian slip. And the court is candid and correct in arguing that its reasoning is identical to that of Schneider. If you’re aware (or any readers out there) of recent systematic reflections on this topic I would be most grateful for the citations.
I find it interesting that, right from the start, we have a characterization of the facts in this case that signal what’s to come, to wit, ‘forty years ago on the far side of the world.’ ‘Far side’ from whose perspective? Certainly not for the people who lived on these islands. This gives one some sense of the significance accorded by the court to the claim, despite the ritualistic reference to ‘serious allegations.’ There appears here a compelling instance of systematic violation of human rights that the court can ignore out of servile deference to (what it terms ‘respect for’) the political branches, making mincemeat of meaningful judicial review (under the cover of the ‘separation of powers’ and a self-serving characterization [i.e., needlessly broad, indeterminate and vague] of a ‘political question’). Because ‘policy choices and value determinations’ are ‘constitutionally committed’ to Congress and the Executive Branch hardly guarantees such choices and determinations are always and everywhere constitutionally sound and sanctioned (the court grants this, but the exceptions are rather predictable and innocuous). The ‘Mobius strip’ metaphor is worthy of unpacking and a demystification of the sort Lakoff and Johnson have made so compelling. I can’t help but think this attempt to immunize foreign policy and national security practices from judicial scrutiny is of a piece with ‘American exceptionalism’ and what Sands calls this nation’s ‘presumption against interntional rules.’ Finally, the ethical assumptions and implications of the court’s conclusion are indeed troubling: ‘All the acts alleged to have harmed the Chagossians directly furthered, or were at least incidental to, this authorized goal [i.e. depopulation].’
Is my interpretation idiosyncratic or legally implausible?
typo above, please read ‘international rules’
As to the ethics of what was done to the Chagos Islanders, it may be interesting to read what a British court (the Court of Appeal for England and Wales, the seond highest court in the country) has seen fit to remark:
‘it would be wrong of us to move on to the legal issues without acknowledging, as Ouseley J [the judge at first instance] went out of his way to do in a judgment to the comprehensiveness of which we pay tribute, the shameful treatment to which the islanders were apparently subjected. The deliberate misrepresentation of the Ilois’ history and status, designed to deflect any investigation by the United Nations; the use of legal powers designed for the governance of the islands for the illicit purpose of depopulating them; the uprooting of scores of families from the only way of life and means of subsistence that they knew; the want of anything like adequate provision for their resettlement: all of this and more is now part of the historical record. It is difficult to ignore the parallel with the Highland clearances of the second quarter of the nineteenth century. Defence may have replaced agricultural improvement as the reason, but the pauperisation and expulsion of the weak in the interests of the powerful still gives little to be proud of.’
Chagos Islanders v. HM Attorney General [2004] EWCA Civ 997, at para. 6 (Lord Justice [Sir Stephen] Sedley, reading the judgment of the Court); available here.
All this was, of course, not related to any actions by the United States. The Chagos Islanders claimed in the English court that the British government had done all these things.
The Court of Appeal proceeded to examine the claims, disregarding entirely any thought as to political questions or any other considerations on justiciability (see on these concepts in English law R (Abbasi) v. Secretary of State for the Home Department [2002] EWCA Civ 1316, available here (that case was an application by detainees at Guantanamo Bay for consular assistance by the British government; the Court found the claim justiciable, but held that the government enjoyed a wide discretion; the Court said some very much less than polite things about US policies in relation to Guantanamo).
However, the claims were decided to be hopeless, for reasons exclusively relating to English tort law (the Crown is not a potential tortfeasor).
Incidentally, if the Chagossians were expelled by a joint effort of the US and the UK, why did the US court not refuse to entertain the case on those grounds? It would seem to be a less far-reaching holding to say that the court would not, even implicitly, interfere with a foreign state’s policies and actions.
Could it be, then, that there is not only a ‘presumption against international rules’ in the US today, but even a presumption against international (or foreign) facts? What a curious form of exceptionalism that would be…
Tobias,
I hope I’m speaking for other readers as well in saying I’m most grateful for the information and analysis above. One can better justify the time spent on sites like Opinio Juris when encountering such thoughtful and useful comments.
Best wishes,
Patrick