Federal Courts - Political Question Doctrine - D.C. Circuit Holds Claims of Harms to Native Inhabitants of the British Indian Ocean Territory Caused by the Construction of a U.S. Military Base Nonjusticiable

Harvard Law Review, January 2007 | Go to article overview

Federal Courts - Political Question Doctrine - D.C. Circuit Holds Claims of Harms to Native Inhabitants of the British Indian Ocean Territory Caused by the Construction of a U.S. Military Base Nonjusticiable


FEDERAL COURTS -- POLITICAL QUESTION DOCTRINE -- D.C. CIRCUIT HOLDS CLAIMS OF HARMS TO NATIVE INHABITANTS OF THE BRITISH INDIAN OCEAN TERRITORY CAUSED BY THE CONSTRUCTION OF A U.S. MILITARY BASE NONJUSTICIABLE. -- Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006).

Courts and commentators, struggling to make sense of the "murky" political question doctrine, (1) have suggested that individual rights cases should be less amenable to dismissal under the doctrine than should cases dealing with structural concerns such as the separation of powers. (2) Whether this consideration is a broad one or is limited to "important" constitutional rights, however, has not been clearly answered. Recently, in Bancoult v. McNamara, (3) the D.C. Circuit discussed the individual rights consideration in dismissing on political question grounds claims arising out of alleged United States depopulation of certain islands in the Indian Ocean. The court's ultimate disposition is defensible as a relatively easy application of Baker v. Carr, (4) and its language affirming an individual rights limitation in foreign policy-related cases is largely welcome. However, the court complicated matters by suggesting a legally dubious distinction between constitutional and statutory rights which, if taken up by courts addressing the war on terrorism, may threaten congressional oversight and contravene the political question doctrine's purpose by aggrandizing judicial power in the foreign policy realm.

In the 1960s, the United States and United Kingdom agreed to displace the inhabitants of the Chagos Archipelago in the British Indian Ocean Territory in order to construct a military facility on the island of Diego Garcia. (5) The Chagossians were allegedly forced from the islands through starvation and death threats. (6) Deprived of their real and personal property, barred from returning, and provided with no relocation assistance, they subsequently lived in poverty in Mauritius and the Seychelles. (7) In 2001, Olivier Bancoult, other indigenous Chagossians, and nonprofit organizations concerned with Chagossian welfare sued the United States and senior officials of the Departments of Defense and State under the Alien Tort Statute (8) (ATS), alleging common law torts as well as violations of international law. (9)

The District Court for the District of Columbia found the named defendants immune, as their conduct was a "direct outgrowth" of their national security duties and thus within the scope of their employment. (10) Plaintiffs forfeited their remaining Federal Tort Claims Act (11) (FTCA) claims against the United States by failing to exhaust administrative remedies. (12) Additionally, the district court held that plaintiffs' claims raised a nonjusticiable political question. (13) Reviewing the well-known six factors elucidated in Baker, (14) the court found each factor to counsel dismissal. (15)

The D.C. Circuit affirmed. Judge Brown (16) held that the court lacked jurisdiction over the claims against both the United States and the individual defendants because they presented nonjusticiable political questions. (17) Relying heavily on its exposition of the Baker factors in its recent decision in Schneider v. Kissinger, (18) the court recalled "an extensive list of constitutional provisions that entrusted foreign affairs and national security powers to the political branches" and that was unrivaled by any constitutional commitment of such matters to the judiciary. (19) The court also restated Schneider's conclusion that, in general, it "could not 'recast[] foreign policy and national security questions in tort terms,'" and that doing so would require impermissibly reviewing whether drastic foreign policy measures were necessary, which could evince disrespect for the executive branch. (20)

The D.C. Circuit recognized the "murk[iness]" of the political question doctrine (21) and echoed Baker's admonition that not all cases implicating foreign relations require judicial abstention.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Federal Courts - Political Question Doctrine - D.C. Circuit Holds Claims of Harms to Native Inhabitants of the British Indian Ocean Territory Caused by the Construction of a U.S. Military Base Nonjusticiable
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.