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

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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. …