Former President Bill Clinton's idea of targeting terrorists in August 1998 was to blow up a Sudanese pharmaceutical factory.
Now, the full Circuit Court of Appeals for the D.C. Circuit may shed light on the Clinton administration's disputed claims about the El-Shifa Pharmaceutical Company. In an interesting declaration discovered Tuesday made public Monday, the appellate court agreed to consider en banc a three-member panel's earlier decision rejecting the pharmaceutical company's claims.
The facts: In the midst of his impeachment travails, Clinton flexed his presidential muscles by ordering a cruise missile strike on the important pharmaceutical plant near Khartoum. The timing and the evidence -- a single soil sample suggesting the facility was linked to production of VX nerve agent -- prompted much second-guessing.
The case: The original suit sought $50 million. Company officials, represented by Chris Vargonis and others at Jones Day, also argued that the statements linking them to Osama bin Ladin and the production of chemical weapons were false. In March, a three-member circuit court panel issued a 26-page decision that had upheld a trial judge's reasoning in dismissing the lawsuit. Stated the circuit court majority:
"We have consistently held that courts are not a forum for second-guessing the merits of foreign policy and national security decisions textually committed to the political branches."
But it may not be that simple, which is why the en banc consideration could prove lively. Dissenting in part, Judge Douglas Ginsburg noted that the question of defamation -- the inaccurate labeling of the company as terrorist-linked -- may be severed from any second-guessing of a president's national security decision-making. Reasoned Ginsburg:
"There is an equally clear line of cases in which we have heard, without constitutional qualms, an individual’s statutory challenge to his designation as an enemy combatant."