Nonjusticiable political questions (court case)

United States District of Columbia Circuit Court of Appeals
Reports

BANCOULT v. McNAMARA, 445 F.3d 427 (D.C. Cir. 2006) Olivier
BANCOULT, et al., Appellants v. Robert S. McNAMARA, et al.,
Appellees. No. 05-5049. United States Court of Appeals,
District of Columbia Circuit. Argued February 16, 2006.
Decided April 21, 2006. Page 428

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 429

Appeal from the United States District Court for the
District of Columbia (No. 01cv02629).

Darrell Chichester, student counsel, argued the cause for
appellants. With him on the brief was Michael E. Tigar.
Aaron Lloyd, Ali A. Beydoun, Christine Parsadaian, Courtney
J. Nogar, Debra L. Spinelli-Hays, Emily Creighton, James B.
Cowden, Jennifer Dodenhoff, Karen Corrie, Laura Rotolo,
Melissa Mandor, and Timothy L. Foden, student counsel,
entered appearances.

Mark R. Freeman, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Daniel Meron, Acting Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Mark B. Stern, Attorney. Dana
J. Martin, Attorney, entered an appearance.

Before: TATEL, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge.

In this case, we confront serious allegations involving
events occurring forty years ago on the far side of the
world. Appellants claim the United States government
forcibly removed them from their homes on islands in the
Indian Ocean in order to construct a military base. The
district court dismissed all of Appellants’ claims against
the United States and the individual defendants. We affirm
the district court’s decision, finding that Appellants’
claims present nonjusticiable political questions.

I

In his historic speech at Westminster College on March 5,
1946 — the speech in which he first warned that an
“iron curtain” had descended over Europe — Sir
Winston Churchill described the “special relationship
between the British Commonwealth and Empire and the United
States.” Blood, Toil, Tears and Sweat: The Speeches of
Winston Churchill 301 (David Cannadine ed., 1989). Facing a
looming Communist threat, Churchill argued that a key
component of this special relationship needed to be
military cooperation between the two nations, cooperation
that included “joint use of . . . Naval and Air Force
bases.” Id. The dispute we address today arose from one of
many instances in which Churchill’s call to collaboration
was heeded: the construction of the United States Navy
Support Facility Diego Garcia in the British Indian Ocean
Territory (BIOT).

The Chagos Archipelago, including the island of Diego
Garcia, is located in BIOT; the British have controlled
these Page 430 islands since 1814. Appellants Olivier
Bancoult, Jeanette Therese Alexis, and Marie Isabelle
France-Charlot claim to be indigenous people of Chagos and
the direct descendants of indigenous Chagossians.
Appellants Chagos Refugee Group and Chagos Social Committee
are nonprofit associations that work to further the welfare
of the Chagossians. Appellants allege that, in 1964, the
British and American governments began secretly negotiating
the establishment of a U.S. military base in the Indian
Ocean; following the “Anglo-American survey,” the
governments decided upon Diego Garcia as the location for
this base. According to Appellants, the two countries
decided to depopulate the entire archipelago, obscuring the
true nature of their decision by portraying the islands’
inhabitants as seasonal contract workers from Mauritius and
Seychelles rather than permanent citizens of BIOT.

As described by Appellants, the depopulation of the islands
occurred in three stages. First, beginning in 1965,
Chagossians who traveled outside the archipelago were not
allowed to return. Next, the United States allegedly placed
an embargo on the islands to prevent the delivery of food
supplies in order to starve the inhabitants out of the
islands. According to Alexis, residents were threatened
with death if they did not leave, and all the cats and dogs
on Diego Garcia were slaughtered. In the third stage,
Appellants claim, the remaining inhabitants of Diego Garcia
were forced onto ships and sent to other islands in the
archipelago; the entire population of the archipelago was
removed two years later. Alexis claims the Chagossians were
not fed during the six-day sea voyage in harsh conditions;
she states that her mother was pregnant at the time of the
journey but miscarried the day after arriving in Seychelles.

Appellants contend the Chagossians were stranded in
Mauritius and Seychelles without housing, employment, or
other assistance, and have been denied the right to return
to Chagos ever since. Instead, Appellants state, they have
been forced to live in abject poverty in a foreign land,
separated from their family graves and native community.
Appellants claim that they have become ill by being exposed
to diseases unknown in Chagos and by living in impoverished
and squalid conditions. Bancoult states that his brother
committed suicide due to the frustration of not being able
to provide for his family in Mauritius. Appellants claim
their real and personal property on Diego Garcia was
destroyed during the construction of the military base.
Finally, Appellants claim that the United States has
discriminated against them in its hiring practices at the
Diego Garcia base, hiring laborers from Mauritius,
Seychelles, Sri Lanka, and the Philippines but refusing to
hire any Chagossians (other than a few who concealed their
ethnic heritage).

II

Appellants filed suit against the United States on December
20, 2001, on behalf of themselves and all similarly
situated Chagossians, seeking compensatory and punitive
damages as well as declaratory and injunctive relief.[fn1]
Several current and former Page 431 senior officials in
the Departments of Defense and State were also named as
defendants under the Alien Tort Statute, 28 U.S.C. §
1350; the Chagossians claimed that these officials knew or
should have known of the decisions regarding depopulation
and base construction and had direct authority over those
who carried out the actions that harmed the islanders.[fn2]
The Chagossians’ claims included forced relocation;
torture; racial discrimination; cruel, inhuman, or degrading
treatment; genocide; intentional infliction of emotional
distress; negligence; trespass; and destruction of real and
personal property.

The United States and the individual defendants filed
motions to dismiss, which the district court granted on
December 21, 2004. Bancoult v. McNamara, 370 F.Supp.2d 1
(2004). The court began by addressing the claims against
the individual defendants, granting those defendants
immunity under the Westfall Act, 28 U.S.C. § 2679.
Bancoult, 370 F.Supp.2d at 6-10. Under the Westfall Act, if
the Attorney General certifies that an employee of the
federal government was “acting within the scope of his
office or employment” at the time of an incident, any
claims arising out of that incident are converted into
claims against the United States under the Federal Tort
Claims Act (FTCA). Id. at 6 (quoting 28 U.S.C. §
2679(d)(1)). The Attorney General so certified, and the
district court found that the Chagossians did not rebut the
certification or show that an exception to Westfall
immunity should apply. Id. at 10. Hence, the claims against
the individual defendants were converted into FTCA claims
against the United States. Id. The district court then
dismissed these claims, finding that the Chagossians had
failed to exhaust their administrative remedies, as
required by 28 U.S.C. § 2675(a), and that the claims
would be barred because the injuries were suffered on
foreign soil, an exception established by 28 U.S.C. §
2680(k). Id. at 10-11 & n. 8.

Next, the district court turned to the political question
doctrine, dismissing the remaining claims against the
United States for lack of subject matter jurisdiction. Id.
at 12-17. Applying the factors enumerated in Baker v. Carr,
369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the
court found that (1) the “conduct of military operations
and foreign policy complained of in this case” was the
exclusive province of the political branches, Bancoult, 370
F.Supp.2d at 15; (2) the court lacked adequate standards by
which to judge the “foreign policy and national security
concerns” involved in the case, id.; (3) the court could
not appropriately “determine the national defense needs of
the U.S. military in the Indian Ocean,” id. at 16; (4)
entertaining the Chagossians’ claims would require the
court to condemn the actions of Congress and the executive,
showing a lack of respect for the political branches, id.;
(5) unquestioning adherence to the political branches’
decision to construct the military base was required, id. at
17; and (6) disturbing the government’s “single voice” on
this issue would subject all three branches to potential
embarrassment, id.[fn3] Page 432

III

We begin our discussion by clarifying the sequence in which
we must address the issues raised. The “first and
fundamental question” that we are “bound to ask and answer”
is whether the court has jurisdiction to decide the case.
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94,
118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Great S.
Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct.
690, 44 L.Ed. 842 (1900)). “The requirement that
jurisdiction be established as a threshold matter `springs
from the nature and limits of the judicial power of the
United States’ and is `inflexible and without exception.'”
Id. at 94-95, 118 S.Ct. 1003 (brackets omitted) (quoting
Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382, 4
S.Ct. 510, 28 L.Ed. 462 (1884)). Therefore, a court must
“address questions pertaining to its or a lower court’s
jurisdiction before proceeding to the merits.” Tenet v. Doe,
544 U.S. 1, 125 S.Ct. 1230, 1235 n. 4, 161 L.Ed.2d 82
(2005).

As we recently stated, “the courts lack jurisdiction over
political decisions that are by their nature `committed to
the political branches to the exclusion of the judiciary.'”
Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005)
(quoting Antolok v. United States, 873 F.2d 369, 379 (D.C.
Cir. 1989) (opinion of Sentelle, J.)). The political
question doctrine is one aspect of “the concept of
justiciability, which expresses the jurisdictional
limitations imposed on the federal courts by the `case or
controversy’ requirement” of Article III of the
Constitution. Schlesinger v. Reservists Comm. to Stop the
War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706
(1974); see also Hwang Geum Joo v. Japan, 413 F.3d 45,
47-48 (D.C. Cir. 2005). As we find this issue to be
dispositive, we do not reach any other jurisdictional
issues, such as sovereign immunity, nor the merits of
Appellants’ claims.

IV

“The nonjusticiability of a political question is primarily
a function of the separation of powers.” Baker, 369 U.S. at
210, 82 S.Ct. 691. The doctrine “excludes from judicial
review those controversies which revolve around policy
choices and value determinations constitutionally committed
for resolution to the halls of Congress or the confines of
the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean
Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166
(1986). The framework laid out by the Supreme Court in
Baker has become the authoritative taxonomy of the
characteristics of political questions:

Prominent on the surface of any case held to involve a
political question is found [1] a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or [2] a lack of judicially
discoverable and manageable standards for resolving it; or
[3] the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s
undertaking independent resolution without expressing lack
of the respect due coordinate branches of government; or
[5] an unusual need for unquestioning adherence to a
political decision already made; or [6] the potentiality
of embarrassment from multifarious pronouncements by
various departments on one question.

Baker, 369 U.S. at 217, 82 S.Ct. 691. “To find a political
question, we need only conclude that one factor is present,
not all,” Schneider, 412 F.3d at 194, but “[u]nless one of
these formulations is inextricable from the case at bar,”
we may not dismiss the claims as nonjusticiable under the
political Page 433 question doctrine, Baker, 369 U.S. at
217, 82 S.Ct. 691.

The instant case involves topics that serve as the
quintessential sources of political questions: national
security and foreign relations. “Matters intimately related
to foreign policy and national security are rarely proper
subjects for judicial intervention.” Haig v. Agee, 453 U.S.
280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981). “The
conduct of the foreign relations of our government is
committed by the Constitution to the executive and
legislative — `the political’ — departments of
the government, and the propriety of what may be done in
the exercise of this political power is not subject to
judicial inquiry or decision.” Oetjen v. Cent. Leather Co.,
246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918).
Foreign policy decisions

are wholly confided by our Constitution to the political
departments of the government, Executive and Legislative.
They are delicate, complex, and involve large elements of
prophecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for
which the Judiciary has neither aptitude, facilities nor
responsibility and have long been held to belong in the
domain of political power not subject to judicial
intrusion or inquiry.

Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.
103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948). “In framing
policies relating to the great issues of national defense
and security, the people are and must be, in a sense, at
the mercy of their elected representatives.” Pauling v.
McNamara, 331 F.2d 796, 799 (D.C. Cir. 1963).[fn4] Thus,
“[t]he fundamental division of authority and power
established by the Constitution precludes judges from
overseeing the conduct of foreign policy or the use and
disposition of military power; these matters are plainly
the exclusive province of Congress and the Executive.”
Luftig v. McNamara, 373 F.2d 664, 665-66 (D.C. Cir. 1967)
(per curiam).

We recently discussed the Baker framework at length in
Schneider, which involved claims brought against the United
States and former National Security Advisor Henry Kissinger
for the alleged kidnapping, torture, and death of a Chilean
general. 412 F.3d at 191. The plaintiffs in that case
alleged that the United States had encouraged a military
coup in Chile and that General Schneider was “neutralized”
in order to allow the coup to succeed. Id. at 192. We found
that “most” of the Baker factors were present in the case,
indicating that the political question doctrine rendered
the claims nonjusticiable. Id. at 194, 82 S.Ct. 691.

Regarding the first Baker factor, we compiled an extensive
list of constitutional provisions that entrusted foreign
affairs and national security powers to the political
branches:

Article I, Section 8 of the Constitution provides an
enumeration of powers of the legislature. That article is
richly laden with delegation of foreign policy and
national security powers. Direct allocation of such power
is found in Section 8, Clause 1, “the Congress shall have
the Power To . . . provide for the Common Defence . . .”;
Clause 3, “To regulate commerce with foreign nations”;
Clause 10, “To define and punish Piracies and Felonies
committed on the High Seas and Offenses against the Law
Page 434 of Nations”; Clause 11, “To declare War, grant
Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water”; Clause 12, “To raise and
support Armies . . .”; Clause 13, “To provide and maintain
a Navy”; Clause 14, “to make Rules for the Government and
Regulation of the land and naval Forces”; Clause 15, “To
provide for calling forth the Militia to . . . repel
Invasions”; Clause 16, “To provide for organizing, arming,
and disciplining, the Militia, and for governing such
Part of them as may be employed in the Service of the
United States.”

In addition to these direct allocations to the Congress
of these foreign relations and national security powers,
other sections and clauses of Article I bear on the
subject. . . . For example, Section 9 of Article I
provides for the suspension of the writ of habeas corpus
“when in cases of . . . invasion the public safety may
require it.” Section 10 allocates to the Congress the
authority to provide consent to individual states, without
which they may not “enter into any Agreement or Compact
with . . . a foreign Power, or engage in War. . . .” This
is not to mention the perhaps less direct but undeniably
real connection between national security and other powers
of Congress, such as that under Article I, Section 8,
Clause 1, to “lay and collect Taxes,” and Clause 2, to
“borrow money on the credit of the United States.”

Just as Article I of the Constitution evinces a clear
textual allocation to the legislative branch, Article II
likewise provides allocation of foreign relations and
national security powers to the President, the unitary
chief executive. Article II, Section 2 provides, inter
alia, that “the President shall be Commander in Chief of
the Army and Navy of the United States, and of the Militia
of the several States, when called into the actual Service
of the United States. . . .” That same section further
provides that the President “shall have Power, by and with
the Advice and Consent of the Senate, to make Treaties, .
. . [and to] appoint Ambassadors, other public Ministers
and Consuls.” Section 3 of Article II provides that “he
shall receive Ambassadors and other public Ministers . . .
and shall Commission all the Officers of the United
States,” including obviously the officers of the military.

Id. at 194-95, 82 S.Ct. 691. We noted that the only
analogous provision regarding the judiciary is Article III,
Section 1, which extends our jurisdiction to “Cases
affecting Ambassadors, other public Ministers and Consuls.”
Id. at 195, 82 S.Ct. 691. After establishing this
constitutional commitment of foreign policy to the
political branches, we found that the plaintiffs’
allegations fell squarely within this realm of exclusivity:
“[A]t the height of the Cold War, officials of the executive
branch . . . determined that it was in the best interest of
the United States to take such steps as they deemed
necessary” to combat the spread of communism in the Western
Hemisphere. Id.

Regarding the second Baker factor, we found “a lack of
judicially discoverable and manageable standards” for
resolving the claims. Id. at 196, 82 S.Ct. 691. We could
not “recast[] foreign policy and national security
questions in tort terms,” as that would require the court
“to define the standard for the government’s use of covert
operations in conjunction with political turmoil in another
country.” Id. at 197, 82 S.Ct. 691. The third Baker factor
implicated a similar yet antecedent problem: the court
would be unable as an initial matter “[t]o determine
whether drastic measures should be taken in matters of
foreign policy and national security,” id. Page 435
(emphasis added), let alone define standards for evaluating
those measures. Finally, we briefly noted the presence of
the fourth Baker factor, finding that we would express a
lack of respect to a coordinate branch of government if we
passed judgment on the executive’s decision to participate
in the alleged covert operations. Id. at 198, 82 S.Ct. 691.

V

We recognize that “the contours of the [political question]
doctrine are murky and unsettled.” Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 803 n. 8 (D.C. Cir. 1984) (opinion
of Bork, J.). Although the judiciary properly defers to the
political branches in most such cases, “it is error to
suppose that every case or controversy which touches foreign
relations lies beyond judicial cognizance.” Baker, 369 U.S.
at 211, 82 S.Ct. 691. Not every political case presents a
political question. The Baker Court provided several
examples of ways in which judicial action might “touch[]”
foreign relations yet not encroach on the powers of the
political branches, such as by construing treaties or prior
executive statements in order to resolve disputes between
private parties. Id. at 212-13, 82 S.Ct. 691. In Population
Institute v. McPherson, 797 F.2d 1062 (D.C. Cir. 1986), and
DKT Memorial Fund, Ltd. v. Agency for International
Development, 810 F.2d 1236 (D.C. Cir. 1987), we noted that
an indirect effect on foreign affairs would not
automatically render a case nonjusticiable. Population
Institute involved a challenge to an administrative
interpretation of an appropriations act that provided
funding for international family planning organizations.
797 F.2d at 1066-67. We found the executive’s interpretation
of the act to be reviewable despite the possibility of a
“vague impact” on foreign affairs; although foreign policy
judgments were implicit in the process of disbursing the
appropriated funds, the interpretation of the act itself
was not a political question. Id. at 1070. Similarly, in
DKT Memorial, we found that a challenge to an agency’s
implementation of a policy statement was justiciable, as
the plaintiffs did “not seek to litigate the political and
social wisdom” of the policy. 810 F.2d at 1238. Thus, in
both of those cases, we undertook “a discriminating analysis
of the particular question posed”; based on the specific
facts and claims at issue, we found the cases to be
justiciable, even though they “touche[d]” upon foreign
relations issues. Baker, 369 U.S. at 211, 82 S.Ct. 691. In
the same way, claims based on “the most fundamental liberty
and property rights of this country’s citizenry,” such as
the Takings and Due Process Clauses of the Fifth Amendment,
are “justiciable, even if they implicate foreign policy
decisions.” Comm. of U.S. Citizens Living in Nicar. v.
Reagan, 859 F.2d 929, 935 (D.C. Cir. 1988) (quoting Ramirez
de Arellano v. Weinberger, 745 F.2d 1500, 1515 (D.C. Cir.
1984) (en banc), vacated on other grounds, 471 U.S. 1113,
105 S.Ct. 2353, 86 L.Ed.2d 255 (1985), and citing Regan v.
Wald, 468 U.S. 222, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984)
and Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69
L.Ed.2d 918 (1981)). Accordingly, “a challenge to the
constitutionality of the manner in which an agency sought
to implement an earlier policy pronouncement by the
President” could be justiciable, even if other challenges to
the policy or its implementation might be barred.
Schneider, 412 F.3d at 198 (citing DKT Mem’l, 810 F.2d at
1238). Yet even though attenuated connections to foreign
affairs do not prevent judicial review, and constitutional
mandates may require it, generally “attacks on foreign
policymaking are nonjusticiable.” DKT Mem’l, 810 F.2d at
1238 (citing Population Inst., 797 F.2d at 1068-70). Page
436

VI

Appellants concede, and we agree, that the decision to
establish a military base on Diego Garcia is not
reviewable. Appellants’ Br. at 15. That decision was an
exercise of the foreign policy and national security powers
entrusted by the Constitution to the political branches of
our government, and we could not reexamine the choice
without making a “policy determination of a kind clearly
for nonjudicial discretion.” Baker, 369 U.S. at 217, 82
S.Ct. 691. Executive branch officials “determined that it
was in the best interest of the United States,” Schneider,
412 F.3d at 195, to gain a military presence in the Indian
Ocean; they achieved this goal through negotiations with the
British, a process into which the courts may not interject
their judgment. See United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 319-20, 57 S.Ct. 216, 81 L.Ed. 255
(1936). As the district court stated, we have no “standards
by which [we] can measure and balance the foreign policy
considerations at play in this case, such as the
containment of the Soviet Union in the Indian Ocean thirty
years ago and . . . the support of military operations in
the Middle East” today. Bancoult, 370 F.Supp.2d at 15. If
that decision is to be reconsidered, “the people are and
must be, in a sense, at the mercy of their elected
representatives.” Pauling, 331 F.2d at 799.

However, Appellants contend that “[w]hile the Executive
made a political decision to secure the Chagos Islands, the
Chagossians were subjected to egregious and illegal conduct
during the depopulation process.” Appellants’ Br. at 13.
Appellants claim that the manner in which the policy
decision was implemented is distinct from the policy
itself, and is thus reviewable. Id. (citing Schneider, 412
F.3d at 197; DKT Memorial, 810 F.2d at 1237; Population
Institute, 797 F.2d 1062; and Ramirez de Arellano, 745 F.2d
at 1515). Similarly, at oral argument, Appellants
maintained that whereas the claims in Schneider may have
been “inextricable from the broader policy” of encouraging
a coup in Chile, the Chagossians’ claims can be separated
from the decision to establish the Diego Garcia base.
Recording of Oral Arg. at 3:40-5:41.

We are unconvinced that the claims presented here merely
“touch[]” on foreign policymaking. The specific tactical
measures allegedly taken to depopulate the Chagos
Archipelago and construct the Diego Garcia base are as
inextricably intertwined with the underlying strategy of
establishing a regional military presence as the alleged
“neutralization” of General Schneider was with the policy
of undermining Allende’s government. See Schneider, 412
F.3d at 197. We are unconvinced by Appellants’ efforts to
distinguish this case from Schneider; the same logic that
compelled our application of the political question
doctrine in that case applies just as forcefully here.

In each case, the policy and its implementation constitute
a sort of M?¶bius strip that we cannot sever without
impermissibly impugning past policy and promising future
remedies that will remain beyond our ken. Thus, just as we
cannot review the decision to establish a base in the
Indian Ocean (as Appellants concede), the same reasoning we
applied in Schneider dictates that we cannot review the
manner in which that decision was carried out. The
political branches must “determine whether drastic measures
should be taken in matters of foreign policy and national
security,” id., and the President “must determine what
degree of force [a] crisis demands,” The Prize Cases, 67
U.S. (2 Page 437 Black) 635, 670, 17 L.Ed. 459
(1863).[fn5] We cannot second-guess the degree to which the
executive was willing to burden itself by protecting the
Chagossians’ well-being while pursuing the foreign policy
goals of the United States; we may not dictate to the
executive what its priorities should have been. In this
respect, the specific steps taken to establish the base did
not merely touch on foreign policy, but rather constituted
foreign policy decisions themselves. If we were to hold
that the executive owed a duty of care toward the
Chagossians, or that the executive’s actions in
depopulating the islands and constructing the base had to
comport with some minimum level of protections, we would be
meddling in foreign affairs beyond our institutional
competence. The courts may not bind the executive’s hands
on matters such as these, whether directly — by
restricting what may be done — or indirectly —
by restricting how the executive may do it. Finally, while
the presence of constitutionally-protected liberties could
require us to address limits on the foreign policy and
national security powers assigned to the political
branches, no such constitutional claims are at issue in
this case. Cf. People’s Mojahedin Org. of Iran v. U.S.
Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999); Harbury
v. Deutch, 233 F.3d 596, 603-04 (D.C. Cir. 2000), rev’d in
part, Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179,
153 L.Ed.2d 413 (2002).

VII

The same considerations that render nonjusticiable the
claims against the United States also bar the claims
against the individual Appellees. Even were Appellants to
demonstrate that the individual Appellees’ actions were not
in conformance with presidential orders, the actions
alleged were still closely enough connected to Appellees’
employment to bring them within the ambit of the political
question doctrine. Cf. Schneider, 412 F.3d at 199 (“Each of
the claims for relief alleges acts by the Defendants which
in the amended complaint consist only of the National
Security Advisor and the United States. Their joint actions
together can hardly be called anything other than foreign
policy.”). Although we need not resolve whether traditional
agency principles guide the application of the political
question doctrine, we have little trouble rejecting the
claim that Appellees’ acts fell outside the scope of their
employment and therefore receive no shelter from the
political question doctrine. The Restatement (Second) of
Agency (1958) states:

Conduct of a servant is within the scope of employment
if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time
and space limits;

(c) it is actuated, at least in part, by a purpose to
serve the master, and

(d) if force is intentionally used by the servant against
another, the use of force is not unexpectable by the
master.

Restatement § 228(1).[fn6] “To be within the scope of
the employment, conduct must be Page 438 of the same
general nature as that authorized, or incidental to the
conduct authorized.” Restatement § 229(1).

Assuming the allegations are correct, the individual
Appellees were authorized to depopulate the Chagos
Archipelago and establish a military base on Diego Garcia.
All the acts alleged to have harmed the Chagossians
directly furthered, or at least were incidental to, this
authorized goal. The individual Appellees were all
high-level executive officers who inherently possessed a
large measure of discretion in carrying out the tasks
assigned to them by the President. When authorized acts
allegedly included removing an entire community from their
home islands, transferring them elsewhere, and replacing
their community with a military base, the use of harsh
measures in the course of completing the tasks cannot be
unexpected. Thus, the actions alleged to have caused harm
to Appellants would not have been outside the scope of
Appellees’ employment.

For this reason, the claims against the individual
Appellees are barred by the same separation of powers
concerns that prevent the court from examining the claims
against the United States. Examining these claims would
require the court to judge the validity and wisdom of the
executive’s foreign policy decisions, as Appellees’ acts
were inextricably part of those policy decisions. This
rationale does not entail some new form of immunity for
executive officers who take actions in pursuit of foreign
policy or national security goals; we merely hold that when
the political question doctrine bars suit against the
United States, this constitutional constraint cannot be
circumvented merely by bringing claims against the
individuals who committed the acts in question within the
scope of their employment.

VIII

Hence, we conclude that all the claims in this case
present nonjusticiable political questions. The judgment of
the district court is therefore

Affirmed.

[fn1] See also R. v. Sec’y of State for Foreign &
Commonwealth Affairs (Ex parte Bancoult), [2001] Q.B. 1067
(2000) (striking down British immigration ordinance
preventing the Chagossians from returning to BIOT). In
2004, the Queen issued two Orders in Council overruling the
High Court’s decision and “restor[ing] full immigration
control over all the islands” of BIOT. See Written
Ministerial Statement of Parliamentary Under-Secretary of
State for Foreign and Commonwealth Affairs, 422 Parl. Deb.
(Hansard), H.C. (2004) 32-34WS, available at
http://www.publications.parliament.uk/pa/cm200
304/cmhansrd/vo040615/wmstext/40615m03.htm.

[fn2] Three other defendants — Halliburton
Corporation, Brown & Root, Inc., and De Chazal Du Mee
— were dismissed from the case and are not involved
in this appeal.

[fn3] The court also denied the Chagossians’ request for a
preliminary injunction, finding the request moot in light
of the dismissal of all claims against the United States
and the individual defendants. Id.

[fn4] See also id. (recognizing that judges cannot “regard
[themselves] as some kind of Guardian Elders ordained to
review the political judgments of elected representatives
of the people”).

[fn5] See also Fleming v. Page, 50 U.S. (9 How.) 603, 615,
13 L.Ed. 276 (1850) (stating that as Commander in Chief of
the nation’s military forces, the President may “employ
them in the manner he may deem most effectual”). While the
current case does not involve battlefield decisions, the
tactical and logistical details of establishing an overseas
base are as much a matter of executive discretion as are
strategic decisions.

[fn6] As we are not reaching the issue of Westfall
certification, our discussion of the “scope of employment”
is confined to the context of the political question
doctrine; thus, we rely on general common law principles
rather than the law of a specific state, as we would
consult under Westfall. Cf. Kimbro v. Velten, 30 F.3d 1501,
1506 (D.C. Cir. 1994).