The Wall Street Journal: War is No Place for Libel Law

Articles / June 24, 2010

Washington, D.C., partners David Rivkin and Bruce Brown co-authored an article, “War is No Place for Libel Law,” which was published in the June 24, 2010, edition of The Wall Street Journal.

In the article, they discuss the ramifications of a D.C. Circuit Court of Appeals ruling to throw out a libel claim brought by El-Shifa pharmaceutical plant, the Sudanese factory bombed by the U.S. in 1998 in response to al Qaeda attacks on the American embassies in Kenya and Tanzania. The U.S. government believed the plant was connected to Osama bin Laden and was involved in producing chemical weapons. The owners, however, insisted that the plant only manufactured medicine, so they initially sued the U.S. government for millions of dollars in property damage.

“With these claims rejected, they advanced a novel legal theory—alleging that U.S. military action, predicated upon the government’s portrayal of them as terrorist supporters, ruined their reputation,” Rivkin and Brown wrote. “Aware that money damages are not available against the federal government for defamation, the plaintiffs asked the courts to declare the statements about them false and force a retraction from the U.S. government.”

With this argument, the authors said, the plaintiffs “sought to pull the judiciary even more deeply into reviewing government decisions about the use of force that lie at the very core of the president’s constitutional authority.”

The court, however, “ruled that the case presented a non-justicable ‘political question.’ Under this venerable doctrine, the courts have no authority to review discretionary policy choices assigned by the Constitution to the government’s political branches,” Rivkin and Brown noted.

The authors then highlighted another significant aspect of the case. Recognizing that future libel suits against the government might not pose such strict political questions, a block of concurring judges developed another method to reject similar cases. Based on the fact that individuals cannot sue the government for damages based on libel—nor can government officials be sued personally for statements on the job—the concurring judges here “concluded that because Congress has not authorized defamation lawsuits against the government, El-Shifa owners could not obtain any kind of relief.”

Rivkin and Brown conclude, “The El-Shifa case posed a provocative question: Whether, when damages are off the table, a claim seeking only to correct the record should be permitted in the future. The answer is emphatically no. Turning the courts into mini ‘truth commissions’ would both force the judiciary into conflict with its co-equal branches and hurt free speech.”