TAKINGS MEETS THE WAR POWER

Remember that pharmaceutical company in the Sudan that Clinton blew up in August, 1998? (See also the article in FAIR) The one where the evidence of a connection to chemical weapons production was really, really shaky, at best?

If you'd like to refresh your memory, read the opinion from the Court of Federal Claims, issued on March 14th, in El-Shifa Pharmaceutical Industries v. U.S. You can also just read the summary at GELPI's Takings Snapshots if you want a quick read; the latest Snapshot isn't on line yet, but you can get on their e-mail list and probably get a back issue as well.

Judge Baskir's opinion is a good read. Here's the court gearing up to dismiss the government's claim that that the case should be dismissed on jurisdictional grounds:

The Defendant’s motion raises the question: Just what does determine whether one should be in a court of Admiralty jurisdiction? In one of Patrick O’Brian’s famous tales of the sea in the early 19th Century, the question was put to an attorney, and the following discourse ensued:

‘Why, sir,’ said the lawyer, ‘if the persecution were tortious, and if it happened at sea, or even on fresh water or reasonably damp land, the Admiralty court would no doubt have cognizance.’

‘Pray, sir,’ said Stephen, ‘just how damp would the land have to be?’

‘Oh, pretty damp, pretty damp, I believe. The judge’s patent gives him power to deal with matters in, upon, or by the sea, or public streams, or freshwater ports, rivers, nooks and places between the ebb and flow of the tide, and upon the shores and banks adjacent – all tolerably humid.’

PATRICK O’BRIAN, THE FAR SIDE OF THE WORLD 51 (1984). Reluctant as we are to take this definition from English strangers at sea, the Government’s claims for admiralty jurisdiction are equally expansive.

Aside from proving that reading cases can be fun, this case is important because it shows another way in which courts are deferential during wartime. The court states unambiguously that "the Takings Clause does not apply to the destruction of property during combat operations" (21). In addition, the court states that it must be deferential regarding presidential determinations of what "constitutes an enemy target" for purposes of the exercise of military power.

The owners of the plant are thus subject to the whims of the political process if they want compensation. The court's opinion notes that there was a bill introduced in Congress that would have expressly asked the courts to determine if there should be compensation here, but the bill failed; absent congressional action on this front, the court views its role as very limited in these circumstances.

Courts are not likely to see themselves as great places to resolve these sorts of issues. This makes sense in terms of the court's desire to preserve its own authority. But the owners are still out $50 million, so it's cold comfort to them to hear that the case essentially turns on what U.S. courts believe that they can prudently accomplish. If there were a public outcry that put heavy political pressure on congress or the president to provide some kind of compensation, maybe the owners could have a shot at recovering some of their losses. That's not particularly likely in the current environment, to say the least. Who's going to take up this particular cause right now?

The broader lesson seems to be: don't invest in companies in countries that are on the State Department's watch list.

As a side note: In terms of case names, this opinion references a pretty cool one: Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191 (1815). I'm definintely putting that case on my reading list!