A federal court slaps down a novel claim from a Sudanese business bombed by the U.S. in 1998.

By: David B. Rivkin Jr. and Bruce D. Brown |  Published in The Wall Street Journal  | June 24, 2010

America's war on terror is being fought on some unlikely fronts. This month, the D.C. Circuit Court of Appeals, in a first-of-its-kind ruling, threw out a libel claim brought by El-Shifa pharmaceutical plant, the Sudanese factory bombed by the Clinton administration in 1998 in response to al Qaeda attacks on the American Embassies in Kenya and Tanzania. The U.S. claimed that the plant was connected to Osama bin Laden and involved in chemical weapons production.

Insisting they are medicine makers and not terrorists, the plant owners initially sued the U.S. government for millions of dollars in damages for destroyed property. With these claims rejected, they advanced a novel legal theory—alleging that U.S. military action, predicated upon the government's portrayal of them as terrorist supporters, ruined their reputation. Aware that money damages are not available against the federal government for defamation, the plaintiffs asked the courts to declare the statements about them false and force a retraction from the U.S. government.

In the post-9/11 era—where lawfare has become an integral part of warfare—El-Shifa's defamation suit ought to be taken seriously. The plaintiffs sought to pull the judiciary even more deeply into reviewing government decisions about the use of force that lie at the very core of the president's constitutional authority.

Sitting as a full court, the D.C. Circuit properly ruled that the case presented a non-justiciable "political question." Under this venerable doctrine, the courts have no authority to review discretionary policy choices assigned by the Constitution to the government's political branches. Determining whether the Clinton administration's statements about the Sudanese factory were true is such an issue, the court ruled, because it would require judges to assess the wisdom of military action, a responsibility vested exclusively with the president. Though the plaintiffs argued that a libel judgment could not impair the president's national security-related powers, the judges understood that, were they to rule in El-Shifa's favor, they would violate the separation of powers by contradicting the president's justification for the attack.

The court could have stopped here. However, recognizing that future libel suits against the federal government might not present "political questions," a block of concurring judges suggested another compelling way to reject El-Shifa's suit and other cases like it. The federal government is immune from most tort liability, including defamation, ensuring that individuals cannot sue the government for damages based on alleged libel. Nor can government officials be sued personally for statements made on the job, preventing fear of large judgments from deterring officials from speaking freely about controversial subjects. The concurring judges concluded that because Congress has not authorized defamation lawsuits against the government, El-Shifa owners could not obtain any kind of relief.

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

American libel law, which operates in the context of constitutional protection for free speech that is unique even among the world's democracies, is built around the sound premise that only those plaintiffs who can prove all the elements of a defamation claim should be compensated. Falsity is but one of those required elements. We have never had a tradition of skipping the other necessary elements of the claim—with the extent of "actual malice" of defendants being the key—even if plaintiffs are only chasing a retraction.

The rules of evidence are designed to produce fairness in court, not "truth" in any abstract sense. In libel cases, particularly where national security is at issue, significant amounts of testimony will not be available because of privileges and claims of state secrets. The El-Shifa suit should be the first and last of its kind. War is no place for libel law.

Messrs. Rivkin and Brown are partners in the Washington, D.C., office of Baker Hostetler. Mr. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush

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By David B. Rivkin, Jr. and Lee A. Casey [Posted from The Wall Street Journal May 26, 2010]

Sixty-eight senators have sent a letter to President Obama urging U.S. ratification of the Ottawa Convention. The 10-year-old treaty, banning the production and use of land mines, has been accepted by over 150 countries, including most of our allies.

The U.S., however, should not join this august club. Land mines remain a critical part of America's 21st century security architecture.

The demilitarized zone (DMZ) between North and South Korea contains massive minefields. They guard against surprise attacks by numerically superior North Korean infantry who are poised 20 miles from the outskirts of Seoul.

Deterring nuclear-armed and consistently erratic North Korea (its most recent provocation was sinking a South Korean warship) is a challenge requiring all the tools in the U.S. military arsenal. Ratifying the Ottawa Convention means dismantling the DMZ minefields. That means an American president might face the unpalatable choice of watching South Korea (and the U.S. forces stationed there) overrun—or using nuclear weapons.

Although the U.S. has chosen not to deploy land mines in post 9/11 wars, they can save the lives of American soldiers. Our bases in Iraq and Afghanistan have regularly come under insurgent attacks, including on the morning of Oct. 3, 2009, when hundreds of Taliban penetrated the defense perimeter of Combat Outpost Keating, an isolated U.S. camp in northeastern Afghanistan. Outnumbered six to one, the G.I.s fought a desperate action with small arms. U.S. aircraft arrived, but only after eight Americans (of 53) were killed. Had the camp been surrounded with a minefield, the results would have been very different.

Outside Korea, land mines on a grand scale may no longer be an essential part of the U.S. arsenal. But ratifying the Ottawa Convention transforms a policy choice into a legal obligation that, notably, neither Russia nor China (or Iran, North Korea and several other rogue states) have accepted. Unilateral disarmament here is neither smart arms control nor good foreign policy.

Land mines do present important humanitarian concerns. Once deployed, they can remain active for decades, and civilians are regularly injured or killed by these weapons long after a conflict has ended. This is a particularly acute problem in the developing world, where many belligerents never bothered to mark or clear the affected areas.

But the newest generation of American "smart" mines can be remotely armed and disarmed, or programmed to blow themselves up after a given time. These weapons are no more or less inhumane than other types of military hardware.

While some smart mines can be expected to malfunction and remain armed, the same is true of all unexploded ordinance, including aircraft-delivered bombs and artillery rounds. Properly used, land mines are not only an effective weapons system, but their limited range can produce far less unintended damage to civilians than, for example, a heavy artillery barrage or aerial bombing.

The treaty, however, would ban all land mines, stupid or smart. In truth, most of its proponents are more interested in reworking the entire legal regime governing warfare than they are in making any particular type of weapon more humane.

Traditionally, the laws of war accommodated military imperatives, imposing only the most basic of restraints. This was in recognition that a more restrictive code would not likely check nations engaged in a life or death struggle. As the realities of war have receded for most developed countries, progressives have worked to transform the norms applicable to armed conflict into something akin to a code governing domestic police functions.

The Ottawa Convention is part and parcel of this process, and the only real justification for U.S. accession to this treaty is a bow to international political correctness. That is what the Senate letter meant by urging the president to reconsider the U.S. position as consistent with his "commitment to reaffirm U.S. leadership in solving global problems."

That type of symbolism is just not a good enough reason to give up a weapon that can protect American forces and assist them in accomplishing their missions.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

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From Fox & Friends, original airdate: 2/6/10

Was it proper for them to be mirandizing this guy in the first place?

David Rivkin: Utterly improper and Clayton forget about the critics. The justice dept senior official, U.S. attorney for the Southern District of New York [Preet Bharara] on Dec. 18 argues in a filing that its essential to treat a person like Ghailani or Abdumuttalab as intelligence assets, with protracted interrogations, psychological dominance, to illicit ever bit of intelligence information back and forth—not 15 minutes.
Remember he’s at his most vulnerable right after his capture. This was a huge mistake.

We seem to have gotten a lot of information from this guy.

Of course. But we didn’t get this information in a timely fashion. So intelligence got stale. And just because we’re getting some intelligence stream out of this guy doesn’t mean we couldn’t have gotten more.
My point is, don’t listen to me, listen to Mr. Bharara, U.S. Attorney for the Southern District of New York, who wrote this filing up to consult the intelligence community that espouses the virtue of treating somebody as an intelligence asset. Forget about where he’s going to be tried eventually, that’s a different debate. We could’ve treated him as an enemy combatant, interrogated him humanely for several months, got everything out of him and then made a decision whether we want to put him in a criminal justice system.…. We got some information out of him, we could’ve gotten more. There’s no doubt about that.





From THE ED SHOW on MSNBC original airdate: 2/8/10

Video opening of footage of top counter terrorism chief John Brennan explaining the night of Detroit bombing.

Ed: Why the Republican criticism so late when they knew the day it took place what was going on?

Rivkin: First of all, they didn’t. It’s interesting that Mr. Brennan says that being in FBI custody is synonymous with being Mirandized. What’s interesting is at the beginning of this administration they announced the creation of something called HIG, high interrogation group that was centered in the FBI. They specifically said it did not mean people would be invariably Mirandized. So Brennan is just factually wrong. Let me just point out isn’t it kind of silly to be talking about, gee, why didn’t the other side complain instead of looking at the underlying substance of this.
We’re talking about somebody who is interrogated for 50 minutes, that interrogation was interrupted and he is Mirandized. I don’t know of any serious interrogator who does not believe that we should have a go at him for several weeks.

Well, what you’re saying may be true. But no Republican at the time had any objection for weeks on end on this issue?

Ed, I just explained that they did not know when he was going to be Mirandized.

Well you’re assuming that. You’re putting your credibility against Mr. Brennan who says they were told.

No, Mr. Brennan said that Abdulmutallab was in FBI custody and that invariably meant he would be Mirandized …. I’m telling you when the administration eye-level announcement, when they created HIG, specifically said it did not mean that people would get Mirandized. So unless they could read Mr. Brennan’s mind … The notion they [Republicans] could conceive the administration would be so foolish as to Mirandize him in 50 minutes is quite simply ludicrous. Of course they didn’t conceive of it. It would’ve been crazy!



From Fox and Friends, original airdate:  2/11/10

Host: Supreme Court said California is different; they do have, under the Constitution there, a right to free speech in parts of the mall subject to reasonable regulation. So wasn’t the pastor’s first amendment right violated?

David Rivkin: I think it’s an excellent case as you correctly point out under the California Constitution; it’s broader in scope than the federal Constitution. And the gist of it would be this: the regulations the mall put in place were overly broad and they were enforced in an arbitrary fashion. Remember he did not carry placards, he did not try to organize a demonstration which is the kind of activity for which you would need a permit, he just had a conversation with free shoppers. And the notion that you need to get advance approval for that kind of interaction is quite frankly, silly.

The mall instituted two “reasonable” restrictions—a specific place in the mall, and the speaker has to submit an application four days in advance. Doesn’t that strike you, as a lawyer, as maybe potential censorship and unreasonable?

It is. And again it would be quite different if we were talking about a large city where you were going to organize a demonstration of many thousands. A number of cities don’t require that long of an advance period. So they manage it. 

But another thing to emphasize: these regulations only apply to conversations involving political and religious and other noncommercial speech. So it’s not just a question of reasonable regulations such as place. But it’s the content because it seems to single out religious and political content.

That may be what bothers people. It’s ok to strike up conversations about baseball but not God. There’s something that may be offensive to a great many people about that.

That is absolutely true. Let’s be clear: content regulation, or regulations that treat one type of speech different from another are almost always unconstitutional … For example in the context of getting a permit, let’s say: It was reasonable to get a permit for a large demonstration, but regulations said you don’t need to get one when talking about art, but if you’re talking about God you need a permit. That would be struck down without a doubt.

If I’m a business owner and someone is proselytizing in my store, I guess I have a legit business interest in preventing that from happening and thus the reasonableness of the designated area?

No, what you want to do is tailor restrictions as narrowly as possible. Concerning behavior in a store: If someone is driving customers away there would be nuisance and loitering approaches that would enable you to ask the person to leave, or cause them to be arrested. You don’t need to have regulations of this kind here. But nothing like that happened here.

Yes or no: Is the preacher going to win?

Well, it's in California State courts but I think he has an excellent change of winning. He obviously lost so far at the trial level, but things tend to get better results at the appeal level. I’m optimistic he would win.

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David Rivkin responds with call for serious evaluation of FBI interrogation policy

Published on February 09, 2010 by Brent Baldwin (OfficialWire) WASHINGTON, D.C.

On the hot seat of MSNBC’s The Ed Show, former Justice Department official David Rivkin called Deputy National Security Advisor John Brennan “factually wrong” when insisting that senior members of Congress were aware that Miranda rights would be given so soon to terrorist suspect, Umar Farouk Abdulmutallab.

“It’s interesting that Mr. Brennan says that being in FBI custody is synonymous with being Mirandized,” said Rivkin, Senior Fellow at the Foundation for The Defense of Democracies and co-chair for the Center for Law & Counterterrorism.  Rivkin pointed to an organization within the FBI known as HIG (high-level interrogation group), formed early in the administration, that had previously announced it did not require Mirandizing a suspect.

“The notion [Republicans] could conceive the administration would be so foolish as to Mirandize him in 50 minutes is quite simply ludicrous. Of course they didn’t conceive of it. It would’ve been crazy!” Rivkin said.

The show segment from Feb. 8th began with a Meet The Press clip of Deputy National Security Advisor John Brennan explaining that he had briefed several senior members of Congress on the night of the Christmas attack who never expressed reservations about standard FBI procedure. Among those was Senate Minority Leader Mitch McConnell, now one of the loudest critics of the Obama administration’s handling of the brief interrogation.

Liberal host Ed Schultz tried to paint the entire Republican argument as “political posturing” and challenged Rivkin, saying he was pitting his credibility against the word of Brennan. But Rivkin remained adamant that officials would not have simply assumed Miranda rights were being given automatically. Rivkin also pointed out that there should be less blame cast by both sides and more attention to the underlying failures in common sense procedure.

“We’re talking about somebody who is interrogated for 50 minutes, that interrogation was interrupted and he is Mirandized. I don’t know of any serious interrogator who does not believe that we should have a go at him for several weeks,” Rivkin said.


About David Rivkin
David Rivkin is an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., who has had a lengthy career distinguished by service in the White House during two presidents’ terms, in the U.S. Department of Justice and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a visiting fellow at the Nixon Center, contributing editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He also represents foreign governments and corporate entities on legal, political, defense, economy and public relations matters.
For more information, visit www.davidrivkin.com or contact:

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