**United States Court of Appeals for the Federal Circuit**

03-5098

EL-SHIFA PHARMACEUTICAL INDUSTRIES COMPANY

and SALAH EL DIN AHMED MOHAMMED IDRIS,

Plaintiffs-Appellants,

v\.

UNITED STATES,

Defendant-Appellee.

[Stephen J. Brogan]{.underline}, Jones Day, of Washington, DC, argued
for plaintiffs-appellants. With him on the brief were [Timothy J.
Finn]{.underline}, [Jonathan C. Rose]{.underline}, [Daniel
H.]{.underline} [Bromberg]{.underline} and [Julia C.
Ambrose]{.underline}. Of counsel was [Christopher J.
Lovrien]{.underline}.

[Peter H. Oppenheimer]{.underline}, Attorney, Environment & Natural
Resources Division, Policy, Legislation & Special Litigation Section,
United States Department of Justice, of Washington, DC, argued for
defendant-appellee. With him on the brief were [Thomas L.
Sansonetti]{.underline}, Assistant Attorney General; and [Kathryn E.
Kovacs]{.underline}, Attorney.

Appealed from: United States Court of Federal Claims

Judge Lawrence M. Baskir

United States Court of Appeals for the Federal Circuit

03-5098

EL-SHIFA PHARMACEUTICAL INDUSTRIES COMPANY and

SALAH EL DIN AHMED MOHAMMED IDRIS,

Plaintiffs-Appellants,

v\.

UNITED STATES,

Defendant-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: August 11, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before LOURIE, CLEVENGER, and SCHALL, [Circuit Judges]{.underline}.

CLEVENGER, [Circuit Judge]{.underline}.

El-Shifa Pharmaceutical Industries Company (\"El-Shifa\") and Salah El
Din Ahmed Mohammed Idris (\"Idris\") (collectively \"appellants\")
brought this suit seeking just compensation for the destruction of a
manufacturing facility by the armed forces of the United States. The
complaint alleges that destruction of the appellants\' facility
constituted a taking of private property for public use within the
meaning of the Fifth Amendment to the United States Constitution. The
Court of Federal Claims concluded that the government\'s conduct did not
rise to the level of a taking under the Fifth Amendment and dismissed
the complaint accordingly. [El-Shifa Pharm. Indus. Co. v. United
States]{.underline}, 55 Fed. Cl. 751 (2003). For the reasons stated
below, we hold that the appellants failed to allege a valid takings
claim and therefore affirm the judgment of the Court of Federal Claims.

I

The complaint states that Idris is a highly successful Saudi banker who
was born and raised in Sudan. The chain of events leading up to the
instant lawsuit began in March 1998, when Idris purchased shares in
El-Shifa, a corporation organized under the laws of Sudan, for \$18
million. At the time, El-Shifa was the sole and exclusive owner of a
manufacturing facility located in Khartoum, Sudan (\"the Plant\"). The
appellants allege that El-Shifa was the largest pharmaceutical
manufacturing company in Sudan and that it used the Plant to supply
drugs sorely needed by the impoverished people living in that country.

On August 7, 1998, the United States Embassies in Nairobi, Kenya, and
Dar es Salaam, Tanzania, were bombed in nearly simultaneous attacks that
were linked to Osama bin Ladin and the terrorist organization al-Qaeda.
On August 20, 1998, President William Jefferson Clinton ordered the
armed forces of the United States to conduct strikes in Afghanistan and
Sudan intended to \"disrupt bin Ladin\'s terrorist network and destroy
elements of its infrastructure\" there. President\'s Radio Address, 2
[Pub. Papers]{.underline} (Aug. 22, 1998). In particular, the stated
purpose of the strikes was to \"destroy, in Sudan, \[a\] factory with
which bin Ladin\'s network is associated, which was producing an
ingredient essential for nerve gas.\" [Id.]{.underline}

The day after the strikes, the President sent a letter to Congress in
which he stated that the Plant was being used to produce chemical
weapons. [See]{.underline} Letter to Congressional Leaders Reporting on
Military Action Against Terrorist Sites in Afghanistan and Sudan, 2
[Pub. Papers]{.underline} (Aug. 21, 1998). The President stated the
United States had acted in self-defense, and that the

> strikes were a necessary and proportionate response to the imminent
> threat of further terrorist attacks against U.S. personnel and
> facilities. These strikes were intended to prevent and deter
> additional attacks by a clearly identified terrorist threat. The
> targets were selected because they served to facilitate directly the
> efforts of terrorists specifically identified with attacks on U.S.
> personnel and facilities and posed a continuing threat to U.S. lives.

[Id.]{.underline} The President added that he ordered the strikes
\"pursuant to \[his\] constitutional authority to conduct U.S. foreign
relations and as Commander and Chief Executive.\" [Id.]{.underline}
Although bin Laden and al-Qaeda survived the strikes, the Plant was
\"substantially, if not completely, destroyed.\" [El-Shifa]{.underline},
55 Fed. Cl. at 754. The appellants aver that the Plant was destroyed by
cruise missiles launched from American naval vessels operating on the
high seas.

The appellants filed a complaint in the Court of Federal Claims on July
27, 2000, seeking \$50 million in damages as compensation for the
destruction of the Plant by the United States. The complaint contained a
series of factual allegations denying assertions President Clinton and
members of his administration made regarding the Plant\'s involvement in
the production of chemical weapons as well as links between the
appellants and al-Qaeda.

The government responded with a motion to dismiss the complaint
challenging the appellants\' standing to sue as well as the jurisdiction
of the Court of Federal Claims to entertain their takings claim. The
government argued first, that the appellants\' complaint should be
dismissed because nonresident aliens do not have standing to sue the
government for an alleged taking absent a substantial voluntary
connection between the United States and the claimants or their
property. Second, the government characterized any injury the appellants
may have suffered during the strikes as a maritime tort over which the
Court of Federal Claims lacked subject matter jurisdiction. Third, the
government argued that the appellants failed to satisfy the specific
requirements of 28 U.S.C. § 2502, which limits the jurisdiction of the
Court of Federal Claims over suits brought by aliens to those in which
United States citizens enjoy a reciprocal right to sue the alien\'s home
nation in its home courts.

After oral argument on the government\'s motion, the court ordered the
parties to file additional briefing addressing the justiciability of the
appellants\' claim in light of the Supreme Court\'s political question
doctrine and the applicability of the Takings Clause of the Fifth
Amendment to the governmental conduct described in the complaint.
[El-Shifa]{.underline}, 55 Fed. Cl. at 755. Ultimately, the government
briefed fully its contention that the political question and military
necessity doctrines counseled in favor of dismissal. [Id.]{.underline}

The Court of Federal Claims rejected the three original grounds for
dismissal, but nevertheless ruled in the government\'s favor on the
ground that the Takings Clause did not apply to the facts alleged in the
complaint. [See]{.underline} [id.]{.underline} at 755-56 (stating that
\"the Takings Clause does not extend to claims arising out of military
operations against enemy war-making instrumentalities\"). The court
determined that the property in question in this case was transformed
into enemy property by the President, [see]{.underline}
[id.]{.underline} at 771, and it determined that the President\'s
designation was conclusive in light of his constitutional role as
Commander-in-Chief, [see]{.underline} [id.]{.underline} at 772. The
court concluded that it could \"not look behind the President\'s
discharge of his Constitutional duties as Commander in Chief, including
his declaration of what constitutes an enemy target and his
determination to use military force to destroy that target.\"
[Id.]{.underline} at 774.

The Court of Federal Claims entered judgment in the government\'s favor
on March 14, 2003 and denied the appellants\' motion for
reconsideration. The appellants timely appealed the court\'s decision to
this court. We have jurisdiction to entertain the appeal pursuant to 28
U.S.C. § 1295(a)(3).

II

The appellants\' assertion that the Court of Federal Claims erred when
it dismissed their complaint for failing to state a claim upon which
relief can be granted raises a question of law that we review
[de]{.underline} [novo]{.underline}. [See]{.underline} [Leider v. United
States]{.underline}, 301 F.3d 1290, 1295 (Fed. Cir. 2002); [Boyle v.
United States]{.underline}, 200 F.3d 1369, 1372 (Fed. Cir. 2000). In
reviewing a decision to dismiss for failure to state a claim we must
assume that all the well-pled factual allegations in the appellants\'
complaint are true, and we draw all reasonable inferences in their
favor. [See]{.underline} [Leider]{.underline}, 301 F.3d at 1295. The
government\'s contention that the Court of Federal Claims erred when it
rejected its motion to dismiss for lack of subject matter jurisdiction
also raises a question of law warranting [de]{.underline}
[novo]{.underline} review. [See]{.underline} [Boyle]{.underline}, 200
F.3d at 1372; [Moyer v. United States]{.underline}, 190 F.3d 1314,
1317-18 (Fed. Cir. 1999).

III

On appeal, the government raises anew its three original grounds for
dismissal of the appellants\' complaint. Like the Court of Federal
Claims, we think none of these grounds provides a firm basis supporting
entry of judgment in favor of the United States.

A

The government\'s first ground raises the issue of whether the Takings
Clause reaches property owned by a nonresident alien located beyond the
shores of the United States. The government argues that it does not if
the nonresident alien or his property lacks a substantial voluntary
connection to the United States. The appellants oppose the government\'s
characterization of the Takings Clause in this respect and respond by
stating, in part, that the \"Takings Clause imposes an absolute and
unqualified restriction upon government conduct . . . \[that\] is
derived from a theory of \'natural law\' and based upon a natural right
to private property which is universal in nature, not dependent on
citizenship, and a fundamental principle of international law . . . .\"
Appellants\' Reply Br. at 20.

The Takings Clause tersely states: \"nor shall private property be taken
for public use, without just compensation.\" U.S. Const. amend. V. To be
sure, the text of the Takings Clause does not qualify what is meant by
\"private property\" or indicate that it must be located in this
country. Nor does the text say that only American citizens may receive
just compensation. Accordingly, the parties agree that a complaint does
not have to allege that the government has appropriated property
physically located in the United States in order to state a valid
takings claim. [See]{.underline} [Turney v. United States]{.underline},
115 F. Supp. 457, 464-65 (Ct. Cl. 1953) (rejecting argument that Takings
Clause did not apply to property located in a foreign country); [Seery
v. United States]{.underline}, 127 F. Supp 601, 602-03 (Ct. Cl. 1955)
(rejecting government\'s argument that takings claims should be
dismissed because private property at issue was located in Austria).
They also agree that a claimant does not necessarily have to aver that
he is a United States citizen or resident alien in order to make out a
valid takings claim if his property is located in the United States.
[See]{.underline} [Russian Volunteer Fleet v. United
States]{.underline}, 282 U.S. 481, 491-92 (1931) (holding Takings Clause
reached the claim of nonresident alien friend whose property the
government seized when it was located in the United States).

The parties disagree, however, over the legal implication of the
particular facts of the instant case, where the claimant is a
nonresident alien lacking substantial voluntary connection to this
country [and]{.underline} the allegedly taken property was situated on
foreign soil. In the government\'s view, this combination sounds the
death knell for the appellants\' claim. The government relies on the
Supreme Court\'s decision in [Verdugo-Urquidez v. United
States]{.underline}, 494 U.S. 259, 274-75 (1990), where the Court held
that the Fourth Amendment did not apply to the warrantless search of a
Mexican citizen\'s home in Mexico in connection with a criminal
investigation. The petitioner in [Verdugo-Urquidez]{.underline} argued
that the Fourth Amendment\'s prohibition on unreasonable searches
applied to and prohibited the search because the Court had in the past
held that nonresident aliens enjoy certain rights under the
Constitution. [Id.]{.underline} at 270-71. Among these rights was the
right to just compensation for property taken by the United States.
[Id.]{.underline} at 271 (citing [Russian Volunteer Fleet]{.underline},
282 U.S. 481). The Court rejected this argument and stated that:

> These cases, however, establish only that aliens receive
> constitutional protections when they have come within the territory of
> the United States and developed substantial connections with the
> country. . . . Respondent is an alien who has had no previous
> significant voluntary connection with the United States, so these
> cases avail him not.

[Id.]{.underline} (citations omitted).

The appellants respond with authority from our predecessor court,
[Turney v. United States]{.underline}, in which the court held that the
seizure by the United States of radar equipment located in the
Philippines, owned at the time by a Philippine corporation, constituted
a taking for which just compensation was owed. [Turney]{.underline}, 115
F. Supp. at 463-64. Although the [Turney]{.underline} court did not
specifically inquire into the substantial connections of the corporation
or its property to the United States, it did reject the government\'s
argument that the Takings Clause lacked extraterritorial
application.[^1] [Id.]{.underline} at 464. Nevertheless, in the
appellants\' view, [Turney]{.underline} binds us, and it stands for the
proposition that the Takings Clause protects the property interests of
nonresident aliens located abroad even where there is no demonstrable
connection between them or their property and the United States.

The parties present us, on the one hand, with [Turney]{.underline},
which counsels in favor of extending the protections of the Takings
Clause to the appellants without regard to the absence of allegations of
substantial voluntary connections to the United States in their
complaint. On the other hand, we are offered a reading of Supreme Court
precedent that purportedly overrules [Turney]{.underline} and instead
suggests that the appellants would have to establish stronger voluntary
connections to this country before they would be entitled to benefit
from the protections its Constitution provides. When presented with this
same choice, the Court of Federal Claims determined that the
[Verdugo-Urquidez]{.underline} Court extended the substantial
connections test to the Takings Clause of the Fifth Amendment, but that
it was nevertheless bound by the doctrine of [stare]{.underline}
[decisis]{.underline} to follow the rule of [Turney]{.underline}.
[See]{.underline} [El-Shifa]{.underline}, 55 Fed. Cl. at 764. Indeed,
the court invited us to overrule [Turney]{.underline} if we agreed with
its reading of [Verdugo-Urquidez]{.underline}.

We are hesitant to accept this invitation to the extent that it asks us
to expressly overrule [Turney]{.underline}. \"We cannot simply overrule
the \[[Turney]{.underline}\] decision, even if we were persuaded . . .
that it is appropriate; to overrule a precedent, the court must rule en
banc.\" [George E. Warren Corp. v. United States]{.underline}, 341 F.3d
1348, 1351 (Fed. Cir. 2003) (citing [Newell Cos. v. Kenney Mfg.
Co.]{.underline}, 864 F.2d 757, 765 (Fed. Cir. 1988)). Moreover, because
we think the appellants\' takings claim at bottom presents a
nonjusticiable political question, we are not required to explore
whether [Turney]{.underline} enjoys any continuing vitality after
[Verdugo-Urquidez]{.underline} in order to affirm the decision on
appeal. Accordingly we decline to hold, as the government asks, that the
Takings Clause does not protect the interests of nonresident aliens
whose property is located in a foreign country unless they can
demonstrate substantial voluntary connections to the United States.

B

We find the government\'s second original ground for dismissal to be
without merit. In their complaint, the appellants include a number of
allegations disputing the accuracy of the President\'s determination
that, [inter]{.underline} [alia]{.underline}, the appellants were using
the Plant to produce chemical weapons ingredients for al-Qaeda. The
government argues that the appellants\' claim is, at its core, that the
President acted negligently when he designated the Plant for
destruction, and that any theory of recovery based on this conduct
necessarily sounds in tort. Therefore, the government concludes, the
appellants\' claim cannot be within the jurisdiction of the Court of
Federal Claims. [See]{.underline} 28 U.S.C. § 1491(a)(1) (divesting
Court of Federal Claims of jurisdiction in cases sounding in tort). The
government asserts further that the alleged tortious behavior is
maritime in character because it involved the launch of cruise missiles
from vessels at sea, and therefore, jurisdiction over the appellants\'
claim lies properly with the federal district courts. [See]{.underline}
28 U.S.C. § 1333(1) (2000) (granting exclusive and original jurisdiction
to federal district courts over civil cases in admiralty and maritime
jurisdiction).

Although the complaint does recite a series of allegations contradicting
the purported links between Idris, the Plant, and international
terrorism, we read it to ask the Court of Federal Claims to remedy a
taking, not a tort. Granted, these allegations, if true, would impugn
the President\'s characterization of the Plant as a chemical weapons
factory. The United States may, or may not, have acted negligently in
targeting the Plant for destruction. However, this was not for the Court
of Federal Claims to decide, nor is it for us. That the complaint
suggests the United States may have acted tortiously towards the
appellants does not remove it from the jurisdiction of the Court of
Federal Claims. To the contrary:

> If the government appropriates property without paying just
> compensation, a plaintiff may sue in the Court of Federal Claims on a
> takings claim regardless of whether the government\'s conduct leading
> to the taking was wrongful, and regardless of whether the plaintiff
> could have challenged the government\'s conduct as wrongful in another
> forum.

[Del-Rio Drilling Programs, Inc. v. United States]{.underline}, 146 F.3d
1358, 1363 (Fed. Cir. 1998); [see also]{.underline} [Rith Energy, Inc.
v. United States]{.underline}, 247 F.3d 1355, 1365 (Fed. Cir. 2001)
(\"\[A\] takings claim lies, as long as the government\'s action was
authorized, even if the government\'s action was subject to legal
challenge on some other ground.\").

As we have explained, an allegation that the government has taken
property in a legally improper manner states \"two separate wrongs
\[that\] give rise to two separate causes of action.\" [Rith
Energy]{.underline}, 247 F.3d at 1365 (quoting [Del-Rio
Drilling]{.underline}, 146 F.3d at 1364) (alteration in original). Under
such circumstances, the plaintiff \"is free either to sue in district
court for asserted improprieties committed in the course of the
challenged action or to sue for an uncompensated taking in the Court of
Federal Claims.\" [Id.]{.underline} (citing [Del-Rio
Drilling]{.underline}, 146 F.3d at 1364). The appellants have indeed
filed an administrative claim and a lawsuit in federal district court
(filed on April 4, 2001) based on the same allegations found in the
instant complaint.[^2] [See]{.underline} [El-Shifa]{.underline}, 55 Fed.
Cl. at 754. With this in mind, it is understandable why the Court of
Federal Claims stated that the appellants had filed a \"multipurpose\"
complaint. [Id.]{.underline} The multipurpose nature of the complaint
did not deprive the Court of Federal Claims of jurisdiction to entertain
the takings claim alleged therein.[^3]

We also reject the government\'s argument concerning the implication
that the maritime nature of the government\'s conduct has for
jurisdiction in the Court of Federal Claims. Given that the appellants
state a claim for takings, the government\'s argument boils down to
nothing more than assertion that a takings claim with maritime overtones
must necessarily fall within the maritime jurisdiction of the federal
district courts. This argument lacks merit. A taking consummated at sea
is nevertheless a taking. As such, the Court of Federal Claims is the
proper forum in which such cases are to be adjudicated. The appellants\'
allegation that the United States used its Navy to launch projectiles
that destroyed their Plant does not divest the Court of Federal Claims
of jurisdiction to entertain their takings claim.

C

The government\'s third original ground for dismissal is its weakest.
Section 2502 of Title 28 states that:

> Citizens or subjects of any foreign government which accords to
> citizens of the United States the right to prosecute claims against
> their government in its courts may sue the United States in the United
> States Court of Federal Claims if the subject matter of the suit is
> otherwise within such court\'s jurisdiction.

28 U.S.C. § 2502 (2000). Section 2502, known as the Reciprocity Act,
burdens alien plaintiffs who invoke the process of the Court of Federal
Claims with showing that their home courts treat natives and American
citizens equally when they adjudicate claims brought against their home
countries. [See]{.underline} [Ferreiro v. United States.]{.underline},
350 F.3d 1318, 1322 (Fed. Cir. 2003) (\"Equal treatment is the paramount
requirement of the Reciprocity Act.\").

The appellants met this burden in the proceedings before the Court of
Federal Claims. They introduced evidence tending to show that in law,
and in practice, American citizens may sue the Sudanese government on
equal terms with Sudanese citizens. Based on this evidence, the Court of
Federal Claims concluded that the \"Constitution of the Republic of the
Sudan guarantees for all persons the right to prosecute claims against
the government.\" [El-Shifa]{.underline}, 55 Fed. Cl. at 756. The thrust
of the government\'s evidence in support of its motion to dismiss
suggested that the Sudanese courts have lost their independence and are
beholden to Islamic religious law. [Id.]{.underline} As such, the
government asserted, they are instruments of discrimination against
non-Muslims. [Id.]{.underline}

The Court of Federal Claims was correct to require a greater showing
from the government in order to defeat the appellants\'
[prima]{.underline} [facie]{.underline} showing of reciprocity.
[See]{.underline} [id.]{.underline} at 758. Although the government\'s
evidence suggested that pro-Muslim political elements probably wield
undue influence on the courts of Sudan, we have recently held that
\"political interference alone on the part of the foreign sovereign will
not serve to defeat a claim of reciprocity.\" [Ferreiro]{.underline},
350 F.3d at 1325. Moreover, there was no evidence in the record that the
non-Muslim Sudanese were any better off than non-Muslim Americans in
Sudanese courts. Such evidence was necessary if the government\'s
arguments regarding the influence of Muslim law on the Sudanese courts
were to have any probative value on the issue of reciprocity.

On appeal, the government argues that blanket provisions of the Sudanese
constitution guaranteeing to all people equal treatment before and equal
access to the Sudanese courts were suspended in 1999, and therefore, the
appearance of reciprocity in the appellants\' evidence is likely
illusory. Even if this disputed fact, which apparently was not before
the Court of Federal Claims, were true, we think it would bolster rather
than undermine a finding of reciprocity. As blanket provisions that
apply to \"all people,\" the legal consequences of their repeal would
apparently apply equally to Sudanese as well as American citizens. The
government does not contend that the provisions were repealed only
insofar as they had previously applied to American citizens. We think
such evidence would be critical if repeal of these provisions were to
evince disparate treatment adverse to American citizens tending to
undermine the appellants\' reciprocity allegation. [See]{.underline}
[id.]{.underline} at 1322 (\"\[T\]he Reciprocity Act \'contemplates only
that American citizens enjoy an equal standing with foreigners in
actions against the foreign State\' and does not require the existence
of an action against the foreign state of identical nature or scope.\"
(quoting [Nippon Hodo Co. v. United States]{.underline}, 285 F.2d 766,
767-68 (Ct. Cl. 1961))).

IV

Having disposed of the government\'s three original arguments in favor
of dismissal, we now consider its contention that the Takings Clause
does not reach the class of Executive conduct that led to the
destruction of the Plant.

A

The appellants do not contend, nor could they, that the Takings Clause
can be successfully invoked against all military conduct that results in
the appropriation or destruction of private property. Rather, they
concede at the very outset of their argument to this court that the
\"just compensation requirement does not apply to \'enemy property.\'\"
Appellants\' Opening Br. at 2. In its opinion, the Court of Federal
Claims noted that the appellants admitted the same in the proceedings
before it and that they stated further that \"no takings claim could
arise out of the destruction of property in any country that
[actually]{.underline} belongs to an enemy of the United States . . .
.\" [El-Shifa]{.underline}, 55 Fed. Cl. at 767. That the United States
does not have to answer under the Takings Clause for the destruction of
enemy property or, as the Court of Federal Claims termed it, \"enemy
war-making instrumentalities,\" is to us a concept so manifest that it
hardly requires further elaboration. A contrary rule that, by way of
example, would require the government to provide compensation for the
destruction of a vehicle (a tank, jet, etc.) used to engage United
States armed forces in battle, strikes us as absurd in the extreme.

However, it is equally true that the government does not avoid the
Takings Clause by simply using its military forces as cover for
activities that would otherwise be actionable if performed by one of its
civilian agencies. Military conduct that does not touch on the
destruction or appropriation of enemy property can sometimes give rise
to a valid takings claim. [See, e.g.]{.underline}, [Argent v. United
States]{.underline}, 124 F.3d 1277, 1281-85 (Fed. Cir. 1997) (holding
that a private property owner may state a valid taking claim arising
from military aircraft overflights). In such cases, the military merely
carries out the sovereign\'s eminent domain prerogative which, under our
Constitution, the United States may not exercise without providing just
compensation.

Thus, military takings cases often ask courts to ascertain the precise
point at which the military conduct complained of is no longer
coextensive with the state\'s civil power of eminent domain, but rather,
enters the zone of conduct, outside the reach of the Takings Clause,
where the United States appropriates the property of its enemies.
[Cf.]{.underline} [Nat\'l Bd. of YMCAs v. United States]{.underline},
396 F.2d 467, 470 (1968) (\"It is axiomatic that the fifth amendment is
not suspended in wartime, but it is equally well recognized that a
destruction of private property in battle or by enemy forces is not
compensable.\"). In order to decide whether the facts of any particular
military takings case paint a picture cognizable as a compensable taking
under the Fifth Amendment, courts have

> look\[ed\] to the general principles announced in the decisional law
> to find the narrow and sometimes indistinct line that separates losses
> that are necessary incidents of the ravages and burdens of war from
> those situations where the Government is obliged to pay compensation
> to the owner of private property that is taken for public use.

[Id.]{.underline} at 471.

The decision of the Court of Claims in [Perrin v. United
States]{.underline}, 4 Ct. Cl. 543 (1868), [aff\'d]{.underline} 79 U.S.
315, 316 (1870), is a seminal case in that decisional law. While the
phrase \"enemy property\" seems to have its origins as a term of art for
prize courts,[^4] [Perrin]{.underline} was the first case in which the
outlines of an enemy property doctrine applicable to takings
jurisprudence can be recognized. The facts of [Perrin]{.underline}
concerned the destruction of private property that resulted from the
razing of the city of Greytown, Nicaragua, on July 13, 1854, by a United
States naval vessel. [Id.]{.underline} at 546-47. With the discovery of
gold in California, safe passage from the Eastern States to that
territory through Central America became a matter of strategic
importance for the United States. [Id.]{.underline} at 546. The court\'s
opinion in [Perrin]{.underline} suggests that the trip through Greytown
was a hazardous one. The property of American citizens traveling to
California was frequently taken and destroyed by townspeople, often with
the support and at the behest of the local government. [Id.]{.underline}

The diplomatic efforts of the United States to put an end to these
disruptions were to no avail. An appeal to the national government of
Nicaragua and the dispatch of an emissary to Greytown failed to end the
attacks. [Id.]{.underline} Consequently, the President decided to send
the Cyane, a sloop of war commanded by one Hollins, to press the
nation\'s grievances. [Id.]{.underline} Commander Hollins delivered an
ultimatum demanding recompense for the taken property and an apology on
pain of attack. [Id.]{.underline} at 546-47. The ultimatum went
unheeded, and Commander Hollins ordered Greytown destroyed. The
operation was a complete success. [Id.]{.underline} at 547.

The Greytown affair resulted in the destruction of valuable merchandise
owned by the Perrins, neither of whom were personally hostile to the
United States. [Id.]{.underline} at 546. They sued the United States in
the Court of Claims for the value of the merchandise under a theory of
takings. The court observed initially that:

> No government, except as a special favor bestowed, has ever paid for
> the property of even its own citizens in its own country destroyed in
> attacking or defending against a common public enemy; much less is any
> government bound to pay for the property of neutrals domiciled in the
> country of its enemy, which its forces may chance to destroy in its
> operations against such enemy.

[Id.]{.underline} at 547-48. As for non-hostile claimants such as the
Perrins, whose only offense was to have physically located their
property within the shores of enemy territory, the court held:

> \[O\]ne who takes up a residence in a foreign place and there suffers
> an injury to his property by reason of belligerent acts committed
> against that place by another foreign nation, must abide the chances
> of the country in which he chose to reside; and his only claim, if
> any, is a personal one against the government of that country in which
> his own sovereign will not interest himself.

[Id.]{.underline} at 548. Accordingly, the court dismissed the Perrins\'
complaint as their property was located in Greytown, a foreign place
hostile to the United States, and it was therefore rightly designated as
enemy property subject to destruction. [See]{.underline} [Juragua Iron
Co. v. United States]{.underline}, 212 U.S. 297, 305-06 (1909) (finding
no compensable taking where government destroyed suspected source of
infectious disease located on enemy soil); [Seery]{.underline}, 127 F.
Supp. at 605-06 (rejecting government\'s enemy property defense because
property belonging to military takings claimant was actually located in
friendly territory when it was taken).

The Supreme Court applied enemy property doctrine to a number of
military takings cases that followed [Perrin]{.underline}. [United
States v. Pacific Railroad Co.]{.underline}, 120 U.S. 227, 228-31
(1887), concerned the destruction of a number of bridges by Union forces
operating in Missouri during the Civil War. The claimant, Pacific
Railroad Company, provided certain transportation services to the
government during the war for a fee that had remained unpaid since the
cessation of hostilities. [Id.]{.underline} at 228. The railroad brought
a lawsuit against the United States to recover the fee.
[Id.]{.underline}

Also during the war, Union forces determined they could impede the
advance of the Confederate Army through the area if they destroyed
several of the railroad\'s bridges. [Id.]{.underline} at 229. The
military destroyed a number of bridges, and thereafter it repaired all
of them except four. [Id.]{.underline} The Court\'s opinion suggests
that what bridges the military repaired, it did so in order to
facilitate the advance of its own forces throughout the theater of
operations. [Id.]{.underline} at 231-32. In responding to the
railroad\'s demand, the government argued that the trial court should
have offset any monies it may have owed the railroad by an amount equal
to the cost of these repairs. [Id.]{.underline} at 229, 232.

The Court reversed the decision of the Court of Claims granting the
offset. [Id.]{.underline} at 240. In so doing, the Court addressed the
nature and scope of the parties\' obligations to each other that may
have arisen from their conduct during the war. The Court concluded that
the railroad had no obligation to offset the government\'s debt. In its
view:

> \[P\]rivate parties cannot be charged for works constructed on their
> lands by the government to further the operations of its armies.
> Military necessity will justify the destruction of property, but will
> not compel private parties to erect on their own lands works needed by
> the government, or to pay for such works when erected by the
> government.

[Id.]{.underline} at 239. The government was to bear alone the burden of
constructing the roads and bridges it needed to move troops and
supplies. [Id.]{.underline} Granting its request for an offset would be
tantamount to impermissibly placing on the railroad that portion of the
burden of moving troops through the battlefield represented by the
government\'s bridge reconstruction costs.

The Court also addressed, at length, the existence of any obligation of
the government to the railroad under the Takings Clause.
[Id.]{.underline} at 233-39. It relied on the enemy property doctrine to
conclude that the railroad could not hold the government liable in
takings for the destruction of any of its bridges. In the Court\'s view,
a state of war unquestionably existed in Missouri at the time Union
forces destroyed the railroad\'s bridges---a war in which:

> More than a million of men were in the armies on each side. The injury
> and destruction of private property caused by their operations, and by
> measures necessary for their safety and efficiency, were almost beyond
> calculation. For all injuries and destruction which followed
> necessarily from these causes no compensation could be claimed from
> the government. By the well-settled doctrines of public law it was not
> responsible for them. The destruction or injury of private property in
> battle, or in the bombardment of cities and towns, and in many other
> ways in the war, had to be borne by the sufferers alone, as one of its
> consequences. Whatever would embarrass or impede the advance of the
> enemy, as the breaking up of roads, or the burning of bridges, or
> would cripple and defeat him, as destroying his means of subsistence,
> were lawfully ordered by the commanding general. Indeed, it was his
> imperative duty to direct their destruction.

[Id.]{.underline} at 233-34. Although, as the Court observed,
individuals over the years had petitioned Congress for compensation for
the loss of property suffered at the hands of the military under similar
circumstances, that body had never granted any such claim.
[Id.]{.underline} at 235-39. Indeed, by the time [Pacific
Railroad]{.underline} was decided, \"\[t\]he principle that, for
injuries to or destruction of private property in necessary military
operations during the civil war, the government is not responsible\[,
was\] established.\" [Id.]{.underline} at 239.

However settled the doctrine may have been, it was not boundless.
Rather, the [Pacific Railroad]{.underline} Court explained instead that
the government could not use the enemy property doctrine to shield
itself from takings liability when:

> \[P\]roperty of loyal citizens is taken for the service of our armies,
> such as vessels, steamboats, and the like, for the transport of troops
> and munitions of war or buildings to be used as store-house \[sic\]
> and places of deposit of war material, or to house soldiers or take
> care of the sick, or claims for supplies seized and appropriated. In
> such cases, it has been the practice of the government to make
> compensation for the property taken.

[Id.]{.underline} at 239; [see also]{.underline} [United States v.
Russell]{.underline}, 80 U.S. (13 Wall.) 623, 629 (1871) (holding that
the United States owed private takings claimant just compensation for
requisitioning three steamboats to ferry Union soldiers during Civil
War). In such cases, the military acted pursuant to the state\'s power
of eminent domain, and the government could justifiably be charged with
paying just compensation as a result.[^5]

To be sure, the Court\'s exegesis, which distinguished between the
military\'s civil functions (requiring just compensation) and its
war-making functions (which the enemy property doctrine immunized from
takings liability) was not strictly necessary to answer the precise
question presented, [i.e.]{.underline}, whether the law obligated the
railroad to reimburse the government for reconstructing four of its
destroyed bridges. However, nearly seventy years later, the Court
confirmed that the [Pacific Railroad]{.underline} Court\'s discussion of
the enemy property doctrine was in fact the law of the land.
[See]{.underline} [United States v. Caltex (Phil.), Inc.]{.underline},
344 U.S. 149, 154 (1952) (\"\[W\]hether or not the principle laid down
by Mr. Justice Field \[in [Pacific Railroad]{.underline}\] was dictum
when he enunciated it, we hold that it is law today.\").

[Caltex]{.underline} presented the Court with a military takings claim
brought by three oil companies that owned oil terminal facilities in the
Philippines when Pearl Harbor was attacked on December 7, 1941.
[Id.]{.underline} at 150. After the attack, and in advance of the
Japanese invasion of Manila, United States forces determined that it was
necessary to destroy the companies\' facilities as well as the oil
stored therein so that they might not fall into enemy hands.
[Id.]{.underline} at 150-51. The Army carried out the destruction of the
property as the Japanese were entering the city, thereby depriving them
of a \"valuable logistic weapon.\" [Id.]{.underline} at 151.

The companies relied on two Civil War era cases to support their
argument that the government ought to pay them just compensation as a
consequence. The first, [Mitchell v. Harmony]{.underline}, 54 U.S. (13
How.) 115 (1852), presented a military takings claim arising from the
Mexican and American War. During that war, it was the government\'s
policy to permit merchants to follow the military into Mexican territory
to trade with the inhabitants residing there. [Id.]{.underline} at
132-33. It was thought this would \"conciliate\" the Mexican provinces
and thereby \"weaken the power of the hostile government of Mexico, with
which we were at war.\" [Id.]{.underline} at 133. Plaintiff Harmony was
a trader who followed the United States forces as they moved into New
Mexico. At one point, Harmony was forced to follow against his will, and
ultimately, the military used his wagons and mules in the battle of
Sacramento and in a subsequent march deeper into Mexican territory.
[Id.]{.underline} at 128-30. Indeed, the Court noted that the military
had taken Harmony\'s property for no other reason than to \"insure the
success of \[this\] distant and hazardous expedition.\"
[Id.]{.underline} at 135. Under such circumstances, the Court held that
the law did not permit the military to use Harmony\'s property without
paying just compensation. [Id.]{.underline} at 136. The Court determined
further that the same result would obtain even if the military had
appropriated Harmony\'s property in order to prevent it from falling
into the hands of the enemy. In that regard, the Court stated that,
\"\[t\]here are, without doubt, occasions in which private property may
lawfully be taken possession of or destroyed to prevent it from falling
into the hands of the public enemy . . . . Unquestionably, in such cases
the government is bound to make full compensation to the owner\[.\]\"
[Id.]{.underline} at 134.

The second case, [United States v. Russell]{.underline}, held that the
government was bound to compensate a takings claimant whose steamboats
the military impressed in order to ferry Union troops during the Civil
War. [Russell]{.underline}, 80 U.S. (13 Wall.) at 628-29, 632. In
language that was noted in [Caltex]{.underline}, [see]{.underline} 344
U.S. at 152-53 n.3, the [Russell]{.underline} Court suggested that in
all cases where the government is shown to have taken private property
\"in time of war or immediate and impending public danger,\" \"the
government is bound to make full compensation to the owner\[,\]\"
[see]{.underline} [Russell]{.underline}, 80 U.S. (13 Wall.) at 628 n.6
(relying on [Mitchell]{.underline}, 54 U.S. (13 How.) at 134).

The [Caltex]{.underline} Court rejected the oil companies\' arguments
based on [Mitchell]{.underline} and [Russell]{.underline} and held the
government was not liable to them for the value of the destroyed oil
storage facilities. [Caltex]{.underline}, 344 U.S. 154-56. The Court
determined that the language in those cases lending support to their
takings claim was in fact \"far broader than the\[ir\] holdings,\" and
that both cases had only required the Court to adjudicate takings claims
concerning \"equipment which had been impressed by the Army for
subsequent use by the Army.\" [Id.]{.underline} at 152-53. In neither
case did the military \"destroy\[\] property of strategic value to
prevent the enemy from using it to wage war the more successfully.\"
[Id.]{.underline} at 153. Rather, the property at issue in
[Caltex]{.underline} was enemy property subject to destruction by the
government under the doctrine set forth in [Pacific
Railroad]{.underline}. [Id.]{.underline} at 154, 156. As the Court
explained,

> The short of the matter is that this property, due to the fortunes of
> war, had become a potential weapon of great significance to the
> invader. It was destroyed, not appropriated for subsequent use. It was
> destroyed that the United States might better and sooner destroy the
> enemy. The terse language of the Fifth Amendment is no comprehensive
> promise that the United States will make whole all who suffer from
> every ravage and burden of war. This Court has long recognized that in
> wartime many losses must be attributed solely to the fortunes of war,
> and not to the sovereign.

[Id.]{.underline} at 155-56 (footnote and citations omitted).

The role of the judiciary in much of our precedent in the area of
military takings, including the cases we discussed above, has been to
draw a \"thin line . . . between sovereign immunity and governmental
liability.\" [Nat\'l Bd. of YMCAs]{.underline}, 396 F.2d at 472. The
instant case is unique however in military takings jurisprudence, in
that we are not asked to determine on which side of that line the
governmental conduct at issue falls. Indeed, under our precedent, if it
were actually true in 1998, as the government then maintained, that the
nation\'s terrorist enemies were using the Plant to manufacture chemical
weapons destined for use against American citizens and interests around
the globe, then the appellants\' property loss would be subsumed by the
enemy property doctrine, and that would be the end of it. Accordingly,
today, we need not further sharpen the line that separates private
property lost to the \"fortunes of war\" from that the military takes
pursuant to the state\'s power of eminent domain.

This case asks us to draw a line of a different sort. The complaint
filed by the appellants challenges the government\'s designation of the
Plant as enemy property by, [inter alia]{.underline}, suggesting that
the President relied on flawed intelligence in targeting it for
destruction. It is replete with allegations contradicting the
government\'s, indeed the President\'s, determination that the Plant was
part of Osama bin Laden\'s array of weapons deployed against Americans
at home and abroad. For the reasons set forth more fully below, we think
the power set forth in Article III, section 1 of the Constitution does
not encompass judicial supervision over the President\'s designation as
enemy property the private property belonging to aliens located outside
the territory of the United States.

B

Without question, \"it is emphatically the province and duty of the
judicial department to say what the law is.\" [Marbury v.
Madison]{.underline}, 5 U.S. (1 Cranch) 137, 177 (1803). \"Sometimes,
however, the law is that the judicial department has no business
entertaining \[a\] claim of unlawfulness---because the question is
entrusted to one of the political branches or involves no judicially
enforceable rights. Such questions are said to be \'nonjusticiable\' or
\'political questions.\'\" [Vieth v. Jubelirer]{.underline}, 124 S. Ct.
1769, 1776 (2004) (citations omitted).

In [Baker v. Carr]{.underline}, 369 U.S. 186, 217 (1962), the Supreme
Court set forth six tests for the presence of a nonjusticiable political
question:

> \[1\] 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 the 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.

[See also]{.underline} [Nixon v. United States]{.underline}, 506 U.S.
224, 228-36 (1993) (finding in the Constitution a textual commitment of
impeachment proceedings to the Senate and House of Representatives);
[United States v. Munoz-Flores]{.underline}, 495 U.S. 385, 389-96 (1990)
(holding adjudication of Origination Clause challenges by the federal
courts do not evince lack of respect due political branches of
government or lack any judicially manageable standards); [Davis v.
Bandemer]{.underline}, 478 U.S. 109 (1986) (concluding political
gerrymandering claims are susceptible to resolution with a judicially
discoverable and manageable standard), [questioned in]{.underline}
[Vieth]{.underline}, 124 S. Ct. at 1776-92 (discussing reasons for
plurality\'s desire to overrule [Davis]{.underline}). Recently, the
Court indicated that the [Baker]{.underline} Court \"probably listed
\[the six tests\] in descending order of both importance and
certainty.\" [Vieth]{.underline}, 124 S. Ct. at 1776.

The decision that a question is nonjusticiable is not one courts should
make lightly. Although each [Baker]{.underline} test is independent,
[id.]{.underline}, we must satisfy ourselves that at least one of the
six [Baker]{.underline} tests is inextricably present in the facts and
circumstances in this case before we may conclude that it presents a
nonjusticiable political question, [Baker]{.underline}, 396 U.S. at 217.
This is so because courts should not use the political question doctrine
to avoid deciding cases with political overtones or questions that they
might categorize simply as \"political.\" [See]{.underline}
[id.]{.underline} (calling for discriminating inquiry and admonishing
\"semantic cataloguing\" in political question cases). Over the
appellants\' arguments to the contrary, we conclude that the facts and
circumstances of this case satisfy the first [Baker]{.underline} test
for the presence of a nonjusticiable political question.

C

The \"issue\" presented here, for purposes of deciding whether there is
\"a textually demonstrable commitment of the issue to a coordinate
political department,\" is the inherent power [vel]{.underline}
[non]{.underline} of the President to designate as enemy property the
private property of an alien that is situated on foreign soil. Whatever
inherent power the President may have to make such designations must
emanate from the Constitution. [See]{.underline} [Ex parte
Quirin]{.underline}, 317 U.S. 1, 25-26 (1942) (\"Congress and the
President, like the courts possess no power not derived from the
Constitution.\"). The Constitution grants to the President the
\"executive Power,\" [see]{.underline} U.S. Const. art. II, § 1, cl. 1,
and requires that he \"take Care that the Laws be faithfully executed,\"
[id.]{.underline}, art. II, § 3. The President is \"Commander in Chief
of the Army and Navy of the United States, and of the Militia of the
several States, when called into actual Service of the United States.\"
[Id.]{.underline}, art. II, § 2, cl. 1.

The appellants take these passages of the Constitution at face value and
find lacking in them a \"textually demonstrable commitment in the
Constitution of the question of the enemy status of property under the
Takings Clause to the Executive Branch.\" Appellants\' Opening Br. at
36-39. The appellants read the Constitution to be silent on the power of
the President, and the military he commands, to designate, even in the
heat of battle, private property as being enemy property subject to
destruction outside the protections of the Takings Clause. This silence,
in their view, forecloses entirely adopting the government\'s position
that the political question doctrine requires us to abstain from
addressing on the merits their contention that the President erred when
he deemed the Plant enemy property. Apparently, the appellants\'
understanding of the Court\'s political question doctrine demands from
the Constitution an [in]{.underline} [haec]{.underline}
[verba]{.underline} commitment of the issue in order for a
nonjusticiable political question to be present.

The appellants\' understanding is flawed for several reasons. As an
initial matter, we reject the notion that the test of textual commitment
requires in this case an explicit statement in the Constitution
committing the issue to the President with the level of specificity the
appellants demand. As Justice White explained:

> Although Baker directs the Court to search for \'a textually
> demonstrable constitutional commitment\' . . . there are few, if any,
> explicit and uneq-uivocal instances in the Constitution of this sort
> of textual commitment. . . . The courts therefore are usually left to
> infer the presence of a political question from the text and structure
> of the Constitution. In drawing the inference that the Constitution
> has committed final interpretive authority to one of the political
> branches, courts are sometimes aided by textual evidence that the
> Judiciary was not meant to exercise judicial review---a coordinate
> inquiry expressed in [Baker\']{.underline}s \'lack of judicially
> discoverable and manageable standards\' criterion.

[Nixon]{.underline}, 506 U.S. at 240-41 (White, J. concurring in the
judgment) (citations omitted). Moreover, whatever the Constitution says
regarding the President\'s war powers, either explicitly in its text or
by its structure, it need not say anything about the Takings Clause
[per]{.underline} [se]{.underline} in order for us to conclude that it
commits exclusively to the President the power to make extraterritorial
enemy property designations. The Constitution either commits this power
to the President or it does not. Whether the putative commitment touches
on the Takings Clause in particular is of no moment to the analysis.
Indeed, the implications of this power for the purposes of claims made
under the Takings Clause are readily apparent from the cases discussed
above from which the courts have crafted the enemy property doctrine.
Once duly exercised, the power transforms private property into enemy
property and precludes recovery of just compensation from the government
as a result of its destruction. Finally, and more fundamentally, the
appellants\' argument on this point ignores what the Supreme Court and
our predecessor court, have had to say regarding the President\'s
inherent war powers and the ways in which separation of powers
principles require that he share it with the Congress and the federal
courts.

We think consideration of the decisional law touching on the nature and
scope of the President\'s war powers sheds important light on our
present inquiry under [Baker]{.underline}\'s \"demonstrable textual
commitment\" test. The Supreme Court has characterized the nature of the
President\'s war powers thusly:

> The Constitution . . . invests the President as Commander in Chief
> with the [power to wage war]{.underline} which Congress has declared,
> and to carry into effect all laws passed by Congress for the conduct
> of war and for the government and regulation of the Armed Forces, and
> all laws defining and punishing offenses against the law of nations,
> including those which pertain to the conduct of war.

[Ex parte Quirin]{.underline}, 317 U.S. at 26 (emphasis added). And
where circumstances are such that war is made on the Nation rather than
declared by the Congress, the Court has long held that although he may
\"not initiate the war, \[the President\] is bound to accept the
challenge without waiting for any special legislative authority.\" [The
Prize Cases]{.underline}, 67 U.S. (2 Black) at 668.

In exercising the power to wage war, the President finds authorization
in the Constitution itself to \"direct the performance of those
functions which may constitutionally be performed by the military arm of
the nation in time of war.\" [Ex parte Quirin]{.underline}, 317 U.S. at
28. Within these functions are \"important incident\[s\] to the conduct
of war\" such as \"the adoption of measures by the military command . .
. to repel and defeat the enemy . . . .\" [Id.]{.underline} They also
include \"the power to seize and subject to disciplinary measures those
enemies who in their attempt to thwart or impede our military effort
have violated the law of war.\" [Id.]{.underline} at 28-29; [see
also]{.underline} [Hamdi v. Rumsfeld]{.underline}, 124 S. Ct. 2633, 2640
(2004) (\"The capture and detention of lawful combatants and the
capture, detention and trial of unlawful combatants, by \'universal
agreement and practice,\' are \'important incident\[s\] of war.\'\"
(citing [Ex parte Quirin]{.underline}, 317 U.S. at 28)).

In our view, the President\'s power to wage war must also necessarily
include the power to make extraterritorial enemy property designations
because such designations are also an important incident to the conduct
of war. As much is borne out of the history of this nation\'s many
declared and undeclared wars, part of which is documented in the cases
where courts have applied the enemy property doctrine. The cases teach
that the purpose of such designations is almost always to \"repel and
defeat the enemy\" by diminishing the sum of material resources it has
at its disposal to prosecute hostilities against the United States and
its citizens. Whether the private property destroyed as enemy property
is a tank firing rounds at American forces, a bridge the enemy finds
necessary to advance to the front, or a commodity, such as oil,
imperiled by advancing forces, the aim is the same---to \"wage war
successfully.\" [See]{.underline} [Hirabayashi v. United
States]{.underline}, 320 U.S. 81, 93 (1943) (stating \"\[t\]he war power
of the national government is the power to wage war successfully\"
(internal quotation marks and citation omitted)). We cannot envision how
a military commander, much less the Commander-in-Chief, could wage war
successfully if he did not have the inherent power to decide what
targets, [i.e.]{.underline}, property, belonged to the enemy and could
therefore be destroyed free from takings liability.

Moreover, in one case where the Court of Claims considered the interplay
between political question doctrine and the Takings Clause, the court
expressly declined to consider a takings claim that arose from military
conduct directly traceable to the President\'s conduct as
Commander-in-Chief. As the court recounted in its opinion in [Ingenio
Porvenir C. Por A. v. United States]{.underline}, 70 Ct. Cl. 735, 738
(1930), in 1916, the Navy occupied the Dominican Republic, including its
capital Santo Domingo, pursuant to a Presidential proclamation. During
the occupation, the provisional government issued a requisition order
for the plaintiffs\' sugar prohibiting them from selling it on the open
market. [Id.]{.underline} The price of sugar dropped while the
requisition order was in effect, and the plaintiffs filed a takings
claim against the government seeking just compensation for the loss.
[Id.]{.underline}

The court observed that there were several reasons why it thought the
plaintiffs could not recover, but one was certainly
dispositive---political question doctrine. [Id.]{.underline} at 739-40.
The court explained that:

> In a general way, the act of taking over the Government of Santo
> Domingo and all the proceedings thereunder were political matters as
> to which we have no jurisdiction. Under the Constitution the President
> is the Commander-in-Chief of the Army and Navy, and this court has no
> jurisdiction to review his acts in exercising the power so granted in
> a foreign country and base a judgment thereon. The acts which are
> claimed to fix a liability on the defendant were done under the orders
> of the President and occurred in a foreign country. The policy which
> he adopted and the acts done pursuant thereto were matters of state
> and wholly within his discretion.

[Id.]{.underline} at 739. It concluded that the case was controlled by
\"principles . . . settled by a long line of decisions, which hold that
such cases as . . . \[the one that was before the court\] . . . present
political questions exclusively within the jurisdiction of the Executive
Department of the Government.\" [Id.]{.underline} We think the
conclusion of the Court of Claims, whose precedent we are bound to
follow, [see]{.underline} [S. Corp. v. United States]{.underline}, 690
F.2d 1368, 1369 (Fed. Cir. 1982) ([en]{.underline} [banc]{.underline}),
applies with even greater force in this case.

Although we conclude, based on our reading of precedent, that those
passages of the Constitution that create and define the President\'s
inherent war powers include within their terms the authority to make
extraterritorial enemy property designations, our analysis under the
first [Baker]{.underline} test is not at an end. This is so because the
entirety of the war powers the Constitution creates are not the
President\'s to exercise alone. They are instead shared with the
Congress and the federal courts, especially where an individual\'s right
to own and enjoy property is concerned. [See]{.underline}
[Hamdi]{.underline}, 124 S. Ct. at 2650 (\"Whatever power the United
States Constitution envisions for the Executive in its exchanges with
other nations or with enemy organizations in times of conflict, it most
assuredly envisions a role for all three branches when individual
liberties are at stake.\"); [Youngstown Sheet & Tube Co. v.
Sawyer]{.underline}, 343 U.S 579, 644 (1952) (Jackson, J., concurring)
(The President \"has no monopoly of \'war powers\' whatever they
are.\"). As the Supreme Court recently reminded, the President does not
enjoy a \"blank check\" merely because a state of war exists.
[Hamdi]{.underline}, 124 S. Ct. at 2650 (citing [Youngstown Sheet & Tube
Co.]{.underline}, 343 U.S. at 587).

With these important separation of powers principles in mind, we
conclude nevertheless that the appellants may not seek judicial review
of the President\'s designation of the Plant as enemy property. The
appellants\' theory of takings liability centers on the alleged
inaccuracy of the President\'s designation of the Plant as enemy
property. This must be the case, because as we noted above, if the Plant
was in fact the property of al-Qaeda, the appellants would have no claim
in takings against the United States for its destruction. In essence
then, the appellants are contending that the President failed to assure
himself with a sufficient degree of certainty that the Plant was in fact
a chemical weapons factory, despite his declaration to the contrary that
the information he possessed in 1998 indicated al-Qaeda was using it to
manufacture chemical weapons ingredients. The appellants would have the
Court of Federal Claims in the first instance, and this court on appeal,
provide them with an opportunity to test that contention, and in the
process, require this court to elucidate the constitutional standards
that are to guide a President when he evaluates the veracity of military
intelligence.

We are of the opinion that the federal courts have no role in setting
even minimal standards by which the President, or his commanders, are to
measure the veracity of intelligence gathered with the aim of
determining which assets, located beyond the shores of the United
States, belong to the Nation\'s friends and which belong to its enemies.
In our view, the Constitution envisions that the political branches,
directly accountable to the People, will adopt and promulgate measures
designed to ensure that the President makes the right decision when,
pursuant to his role as Commander-in-Chief, he orders the military to
destroy private property in the course of exercising his power to wage
war. Today, we need not decide whether and to what extent the Executive
and Legislative branches share that responsibility. We conclude only
that the Constitution does not contemplate or support the type of
supervision over the President\'s extraterritorial enemy property
designations the appellants request in this case.

The circumstances here, under which the Plant was targeted and
destroyed, strengthen this conclusion. When the President ordered the
Plant destroyed, he exercised the \"authority . . . the Constitution
itself gives the Commander in Chief, to direct the performance of those
functions which may constitutionally be performed by the military arm of
the nation in time of war.\" [Ex parte Quirin]{.underline}, 317 U.S. at
28. In 1998, the President determined that the Plant\'s destruction was
a necessary and proper response to \"the imminent threat of further
terrorist attacks against U.S. personnel and facilities.\" (J.A. at
210.) In his radio address following the strike on the Plant, he
maintained that he had \"convincing\" evidence that the \"bin Laden
network of radical groups,\" was responsible for the then recent attacks
on United States embassies in Kenya and Tanzania as well as \"compelling
evidence that the bin Laden network was poised to strike at \[the United
States\] again.\" President\'s Radio Address, 2 [Pub.
Papers]{.underline} (Aug. 22, 1998).

Under these conditions, where the President\'s own assessment of the
offensive posture of the Nation\'s enemies overseas leads him to
conclude that the Nation is at risk of imminent attack, we cannot find
in the Constitution any support for judicial supervision over the
process by which the President assures himself that he has in fact
targeted that part of the enemy\'s wealth of property that he thinks, if
it were destroyed, would most effectively neutralize the possibility of
attack. In the [Prize Cases]{.underline}, the Supreme Court was asked to
review the correctness of President Lincoln\'s determination that a
state of war existed between the Union and the secessionist States, and
pursuant to that decision, to exercise the right of prize and capture on
behalf of the United States over the plaintiffs\' ships which had been
seized pursuant to an embargo. [The Prize Cases]{.underline}, 67 U.S. (2
Black) at 666-70. On that question, the Court concluded:

> Whether the President in fulfilling his duties, as Commander-in-chief,
> in suppressing an insurrection, has met with such armed hostile
> resistance, and a civil war of such alarming proportions as will
> compel him to accord to them the character of belligerents, is a
> question to be decided [by him]{.underline}, and this Court must be
> governed by the decisions and acts of the political department of the
> Government to which this power was entrusted. \"He must determine what
> degree of force the crisis demands.\" The proclamation of blockade is
> itself official and conclusive evidence to the Court that a state of
> war existed which demanded and authorized a recourse to such a
> measure, under the circumstances peculiar to the case.

[Id.]{.underline} at 670. Likewise, as we indicated above, we think that
it is up to the President to determine when he has received
\"convincing\" or \"compelling\" information sufficient to justify the
use of force to destroy private property located outside the territory
of the United States belonging to a nonresident alien. Such a
determination is, in our view, \"a core strategic matter\[\] of
warmaking belong\[ing\] in the hands of those who are best positioned
and most politically accountable for making them.\" [See]{.underline}
[Hamdi]{.underline}, 124 S. Ct. at 2647 (citing [Dep\'t of Navy v.
Egan]{.underline}, 484 U.S. 518, 530 (1988), and [Youngstown Sheet &
Tube Co.]{.underline}, 343 U.S. at 587).

Moreover, we wonder how a federal court might go about testing the
veracity of the intelligence relied upon by the President in deciding to
attack the Plant. On this point, the appellants argue that \"the
question whether an individual \[or his property\] is associated with a
nation or group hostile to the United States is a question of historical
fact which the adversarial system is well-suited to determine.\"
Appellants\' Opening Br. at 39. We suspect this characterization belies
the complicated and sensitive nature of determining whether private
property has in fact been pressed into use by terrorists. More than
\"questions of historical fact,\" enemy property designations made
pursuant to the President\'s duty to prevent future terrorist attacks
from the country\'s enemies abroad are often \"delicate\[\] and
complex\" and can \"involve large elements of prophecy\" at the time at
which they are made. [See]{.underline} [Chi. & S. Air Lines, Inc. v.
Waterman S.S. Corp.]{.underline}, 333 U.S. 103, 111 (1948). The
appellants\' desire for judicial review of the President\'s decision to
target the Plant would most surely give way to the specter of field
commanders vetting before the civil courts the intelligence on which
they rely in selecting targets for destruction while simultaneously
dealing with the exigencies of waging war on the battlefield. The
Supreme Court has considered what such a state of affairs would mean for
the military\'s ability to wage war and has stated that:

> It would be difficult to devise more effective fettering of a field
> commander than to allow the very enemies he is ordered to reduce to
> submission to call him to account in his own civil courts and divert
> his efforts and attention from the military offensive abroad to the
> legal defensive at home.

[Johnson v. Eisentrager]{.underline}, 339 U.S. 763, 779 (1950). These
concerns apply with equal force here, given the appellants\' desire to
test the veracity of the information upon which the President claims to
have relied in ordering the destruction of their property.[^6]

For all of these reasons, we think the Constitution, in its text and by
its structure, commits to the President the power to make
extraterritorial enemy property designations such as the one made
regarding the appellants\' Plant.

D

The appellants argue further that in the past, courts have looked beyond
the President\'s designation of a takings claimant\'s property as enemy
property, and therefore, the dismissal of their complaint by the Court
of Federal Claims on political question grounds is in conflict with
precedent. In our view, none of these cases can be read, as the
appellants argue they should, to authorize the type of searching inquiry
into the accuracy of the President\'s designation of the Plant as enemy
property.

The appellants rely on [Juragua Iron Company]{.underline}, where the
Supreme Court was confronted with a takings claim for the destruction of
mining facilities and equipment United States armed forces ascertained
were housing \"fever germs\" that threatened the health of soldiers
operating in Cuba during the Spanish-American War. [Juragua Iron
Co.]{.underline}, 212 U.S. at 301-03. The appellants apparently rely on
isolated language in the Court\'s opinion where it stated that the case
depended \"upon the facts found\" by the trial court and in which it
concluded that the \"circumstances disclosed by the record\"
demonstrated there was no implied promise by the government to
compensate the claimant for its losses. [Id.]{.underline} at 301, 309.

Aside from being directed to a theory of recovery resting on implied
contract rather than takings, this language is a slim reed on which we
might find what seems to us to be the sweeping authority of the federal
courts to review the President\'s designation of the Plant as the
property of al-Qaeda. The [Juragua]{.underline} court stated that it
could be \"assumed that the health, efficiency and safety of the troops
required that to be done which was done.\" [Id.]{.underline} at 302.
There is no indication from the Supreme Court\'s opinion that the
claimant disputed the accuracy of the military\'s determination that its
facility did in fact house infectious agents that posed an imminent and
immediate threat to the health of its soldiers---a determination
analogous to the one President Clinton made here regarding the uses to
which the Plant was being put. Consequently, [Juragua]{.underline} is
inapposite because the level of deference owed that determination was
never at issue.

[Seery v. United States]{.underline} is similarly unavailing to the
appellants\' case. In [Seery]{.underline}, the Court of Claims was
confronted with a takings claim made by a United States citizen
concerning the appropriation by the Army of the claimants\' estate in
Austria as an officer\'s club during World War II. [Seery]{.underline},
127 F. Supp. at 602-03. The court considered in some detail the status
of Austria as an enemy of the United States during the war in order to
resolve what it believed was a dispositive issue in the case---whether
the estate was located within enemy territory and could, as the
government contended, be appropriated by the army with immunity.
[Id.]{.underline} at 603-06. Although the government insisted that
Austria had been enemy territory during the war, this assertion
contradicted the official position of the State Department. The court
explained that:

> If we take at anywhere near face value the numerous expressions of the
> Executive Department, which is responsible for the conduct of our
> foreign relations, Austria was, after the surrender of Germany, a
> nation liberated from a German occupation which had never been
> recognized as lawful by our Government. The property in question,
> then, was no more subject to uncompensated confiscation than it would
> have been had it been located in Holland or France or the Philippines.

[Id.]{.underline} at 606. The appellant\'s characterization of
[Seery]{.underline} notwithstanding, the court, in our view, deferred to
the government\'s own official pre-litigation determination that Austria
was not an enemy of the United States during World War II. Unlike the
instant case, the status of the taken property in [Seery]{.underline} as
enemy property was at odds with the official government policy on the
matter. This suggests the government\'s contradictory assertion during
litigation was nothing more than a proffer of counsel, and as a result,
it was not worthy of judicial deference. The facts of
[Seery]{.underline} contrast sharply with those of the instant case
where explicit statements by the Commander-in-Chief made immediately
after the 1998 strikes set forth the official position of the Executive
Branch on the question of the enemy status of the Plant.

Finally, we think the appellants\' reliance on the [Prize
Cases]{.underline} is at once puzzling and misplaced. The Court\'s
decision in the [Prize Cases]{.underline} is often cited as authority
for judicial deference to the President in the area of war-making. This
comes as no surprise since, as we recounted above, the only view the
Court expressed on a matter of judicial deference concerned the power of
the President to blockade merchant ships engaged in commerce with
southern States. On that score, the Court concluded that the declaration
of the blockade was itself \"official and conclusive evidence\" that a
state of war existed. [The Prize Cases]{.underline}, 67 U.S. (2 Black)
at 670. The remainder of the Court\'s exegesis of applicable legal
principles concerned the proper definition of the term \"enemies\'
property\" in view of the plaintiffs\' contention that the property of a
citizen or an ally of the United States could not be considered enemy
property as a matter of law. [Id.]{.underline} at 671-74. Nothing in
that portion of the Court\'s opinion states, much less suggests, that
the federal courts have any role in supervising extraterritorial enemy
property designations made in the face of imminent attack. Like
[Juragua]{.underline} and [Seery]{.underline}, the [Prize
Cases]{.underline} do not provide the appellants any basis for
disturbing the judgment of the Court of Federal Claims dismissing the
complaint.

E

We also do not read the recent decisions in [Hamdi]{.underline} and
[Rasul v. Bush]{.underline}, 124 S. Ct. 2686 (2004), to counsel a
different outcome than the one we reach today. Those cases concerned the
detention, away from the front, of citizen and alien enemy combatants
captured on the battlefield. Among the issues considered by the Court in
both cases was the legality of the President\'s decision to hold the
detainees indefinitely on soil over which the United States exercises,
at the very least, plenary and exclusive jurisdiction, without
permitting them access to counsel, giving them an opportunity to contest
the factual predicates of their detention before a neutral decision
maker, or providing them with other forms of procedural due process.

In contrast, here we are faced with what seems to us to be a
fundamentally different set of facts giving rise to the appellants\'
takings claim. Unlike the enemy combatant designations at issue in
[Hamdi]{.underline} and [Rasul]{.underline}, whose purpose was to invoke
the President\'s power to detain indefinitely captured enemy combatants,
the enemy property designation here was made in view of the President\'s
\"go/no go\" decision regarding the use of force in what is deemed to be
a foreign theater of war and in the face of what he perceived to be an
imminent terrorist attack on the United States. To be sure, had
President Clinton considered the potential takings liability of the
United States before making the instant enemy property designation, he
may have experienced a moment of pause before ordering the Navy to
destroy the Plant. Nevertheless, for the reasons we discuss above, we
are loath to add to the President\'s calculus concerns regarding takings
liability when he exercises his power as Commander-in-Chief to wage war
on behalf of the country under the circumstances that obtained in this
case.

The appellants credit the President with having formed a good faith
belief that the Plant was a chemical weapons factory disguised as a
pharmaceutical works, yet they nevertheless question the basis for that
belief in an effort to obtain just compensation. We may surmise without
deciding that the outcome in this case very well may have been different
had there never been any evidence in the record, compelling, convincing,
or otherwise, that the President had determined that the property at
issue belonged to an enemy of the United States. Faced with a contrary
set of facts here, our reading of the Constitution and the Supreme
Court\'s political question doctrine counsels deference to the
President\'s extraterritorial enemy property designation.

In coming to this conclusion, we must emphasize that we express no
opinion regarding the President\'s power, inherent or otherwise, to make
enemy property designations over property that is located within the
territory of the United States. Here too we might also surmise, without
deciding, that the outcome in this case might have been different if the
appellants\' property were located within the borders of a State rather
than in Sudan. In [Youngstown]{.underline}, Justice Jackson indicated
that the constitutional calculus might be different if a domestic,
rather than extraterritorial, enemy property designation were at issue:

> That military powers of the Commander in Chief were not to supersede
> representative government of internal affairs seems obvious from the
> Constitution and from elementary American history. Time out of mind,
> and even now in many parts of the world, a military commander can
> seize private housing to shelter his troops. Not so, however, in the
> United States, for the Third Amendment says, \'No Soldier shall, in
> time of peace be quartered in any house, without the consent of the
> Owner, nor in time of war, but in a manner to be prescribed by law.\'
> Thus, even in war time, his seizure of needed military housing must be
> authorized by Congress. It also was expressly left to Congress to
> \'provide for calling forth the Militia to execute the Laws of the
> Union, suppress Insurrections and repel Invasions . . . .\' Such a
> limitation on the command power, written at a time when the militia
> rather than a standing army was contemplated as the military weapon of
> the Republic, underscores the Constitution\'s policy that Congress,
> not the Executive, should control utilization of the war power as an
> instrument of domestic policy.

[Youngstown Sheet & Tube Co.]{.underline}, 343 U.S. at 644 (footnote
omitted). Today, we need not reach the complex question of the
judiciary\'s role in balancing the interests of the Congress and the
President in exercising that aspect of the war powers that includes the
power to make domestic enemy property designations. We raise the issue
only to emphasize the limited reach of our holding solely to those
extraterritorial enemy property designations the President makes in
anticipation of imminent attack on American citizens or military forces.

Finally, although it was not raised by the appellants in the proceedings
before us, we might consider, [sua]{.underline} [sponte]{.underline},
whether or not the test articulated in [Mathews v.
Eldridge]{.underline}, 424 U.S 319 (1976), requires a different outcome
in this case. The [Mathews]{.underline} test is \"\[t\]he ordinary
mechanism that \[the Supreme Court\] use\[s\] for balancing \[the\]
serious competing interests \[of the government and the individual\],
and for determining the procedures that are necessary to ensure that a
citizen is not \'deprived of life, liberty, or property, without due
process of law,\' U.S. Const., Amdt. 5\[.\]\" [Hamdi]{.underline}, 124
S. Ct. at 2646. \"[Mathews]{.underline} dictates that the process due in
any given instance is determined by weighing \'the private interest that
will be affected by the official action\' against the Government\'s
asserted interest, \'including the function involved\' and the burdens
the Government would face in providing greater process.\"
[Id.]{.underline} (citing [Mathews]{.underline}, 424 U.S. at 335). Here,
application of the [Mathews]{.underline} test would require us to
balance the appellants\' strong interest in not being deprived of their
property interest in the Plant without due process against the
President\'s interest and capacity to wage war overseas. In other words,
we would have to consider whether providing the appellants additional
process to contest the single enemy property designation at bar is worth
risking the possibility that the panoply of such decisions the President
makes in \"waging war successfully\" overseas will likewise be subjected
to review in the federal courts. In short, we think the question answers
itself. The balance, in this case, must necessarily tip in the
President\'s favor.

V

For the foregoing reasons, the decision of the Court of Federal Claims
to dismiss the complaint because it raises a nonjusticiable political
question is affirmed.

[AFFIRMED]{.underline}

[^1]: We note, only in passing, that the court\'s opinion indicates that
    the allegedly taken radar equipment once belonged to the United
    States and that the Philippine corporation was closely held by a
    small group of shareholders that included two former members of the
    United States Air Force. [See]{.underline} [Turney]{.underline}, 115
    F. Supp. at 458-59.

[^2]: ^?^ Ever mindful of this court\'s duty to attend to its own
    jurisdiction, [see]{.underline} [Morgan v. Principi]{.underline},
    327 F.3d 1357, 1363 (Fed. Cir. 2003), we consider whether the
    appellants\' later filing in federal district court ousted the Court
    of Federal Claims of jurisdiction over their takings claim under 28
    U.S.C. § 1500 (\"section 1500\").  Section 1500 states, in pertinent
    part, that:  \"The United States Court of Federal Claims shall not
    have jurisdiction of any claim for or in respect to which the
    plaintiff or his assignee has pending in any other court any suit or
    process against the United States . . . .\"  We determine \"whether
    another claim is \'pending\' for purposes of § 1500 . . . at the
    time at which the suit in the Court of Federal Claims is
    filed\[.\]\"  [Loveladies Harbor, Inc. v. United
    States]{.underline}, 27 F.3d 1545, 1548 (Fed. Cir. 1994)
    ([en]{.underline} [banc]{.underline}).  Accordingly, the appellants
    did not vitiate the jurisdiction of the Court of Federal Claims over
    their first complaint by later filing the same claim in federal
    district court.  [See]{.underline} [Tecon Eng\'rs, Inc. v. United
    States]{.underline}, 343 F.2d 943, 946 (Ct. Cl. 1965) (rejecting
    argument that plaintiff ousted Court of Claims of jurisdiction by
    later filing the same suit in federal district court); [see
    also]{.underline} [Hardwick Bros. Co. v. United States]{.underline},
    72 F.3d 883, 886 (Fed. Cir. 1995) (confirming that the [Tecon
    Engineers]{.underline} exception to section 1500 is still good law);
    [Dico, Inc. v. United States]{.underline}, 48 F.3d 1199, 1203 (Fed.
    Cir. 1995) (same); [Loveladies Harbor]{.underline}, 27 F.3d at 1549
    (same).

[^3]: Because we conclude that the appellants\' complaint states a
    takings claim falling within the jurisdiction of the Court of
    Federal Claims, we need not address the government\'s argument that
    the Supreme Court\'s tests for finding federal district court
    jurisdiction over maritime torts have been satisfied in this case.
    [See]{.underline} Br. of Appellee at 45-53.

[^4]: [See]{.underline} [The Prize Cases]{.underline}, 67 U.S. (2 Black)
    635, 674 (1862) (stating \"enemies\' property\" is \"a technical
    phrase peculiar to prize courts . . .\").

[^5]: The Court has in the past relied alternatively on a theory of
    implied contract to find compensable takings, especially in those
    cases where \"property of loyal citizens is taken for the service of
    our armies.\" [See]{.underline} [Pac. R.R.]{.underline}, 120 U.S. at
    239 (stating that the obligation to pay just compensation in such
    cases is \"supposed to rest upon the general principle of justice
    that compensation should be made where private property is taken for
    public use,\" but nevertheless, the military\'s seizure and
    appropriation of property in these instances \"may not be within the
    terms of the constitutional clause\"); [Russell]{.underline}, 80
    U.S. (13 Wall.) at 630 (explaining that government\'s obligation to
    pay for use of steamboats to ferry troops was founded upon implied
    promise to compensate their owner for the services he rendered);
    [see also]{.underline} [Nat\'l Bd. of YMCAs]{.underline}, 396 F.2d
    at 471 (discussing [Russell]{.underline} and other cases where
    courts have found compensable military takings and suggesting that
    \"the property in those cases was requisitioned in a manner much
    akin to the procurement of goods and services under contract---in
    the absence of immediate danger, after deliberation, and for a
    somewhat later and less temporary use\").

[^6]: We are aware that these concerns also touch on the coordinate
    inquiry under [Baker]{.underline} of a \"lack of judicially
    discoverable and manageable standards\" for resolving the dispute
    between the appellants and the government. Although we need not
    reach this [Baker]{.underline} criterion, we suspect that even if
    the concerns expressed in [Eisentrager]{.underline} did not obtain
    here, it would be difficult, if not extraordinary, for the federal
    courts to discover and announce the threshold standard by which the
    United States government evaluates intelligence in making a decision
    to commit military force in an effort to thwart an imminent
    terrorist attack on Americans.