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Salah El Din Ahmed Mohammed Idris wants the United States of America to pay for its mistakes. Idris is the owner of the Sudanese manufacturing plant that U.S. forces bombed to rubble in 1998. Then-President Bill Clinton claimed the facility was cooking chemical weapons and was tied to Osama bin Laden. Idris has strenuously denied these claims. Several investigations and observers suggest Idris is right. U.S. intelligence erred, and the government should pay up for the damage, Idris says in separate suits before two federal courts in Washington, D.C. Both suits were filed months before the terrorist attacks of Sept. 11. But in the wake of these attacks, Idris’ legal battle has taken on a broader significance. In the midst of anthrax scares and Operation Enduring Freedom, the prerogatives of the commander in chief have gained a thick political armor. Now Idris’ cases are forcing the judiciary to take up awkward questions about the scope of those prerogatives. Can the government be made liable for hitting the wrong targets in its hunt for terrorists? And do the courts have the constitutional authority to second-guess the president’s decisions in this arena? The judges in Idris’ cases — one in U.S. District Court and the other in the U.S. Court of Federal Claims — must decide over the next several months whether his claims are viable enough to proceed, or must be dismissed before trial, as the Department of Justice has argued. HIT FROM 400 MILES According to court documents and his lawyers, Salah Idris was born in Shendi, Sudan, now spends much of his time in Jeddah, Saudi Arabia, and is a citizen of both countries. A former senior officer of Saudi Arabia’s largest commercial bank, Idris has been an active investor in Africa, the Middle East and the United States. He has an office in London and a home in Cairo. One of Idris’ investments proved extremely ill-timed. In March 1998, Idris paid about $18 million for shares of the El-Shifa Pharmaceutical Industries Co. in Sudan. El-Shifa’s assets consisted of a plant in Khartoum that, according to Idris’ court pleadings, manufactured human and veterinary pharmaceuticals in the form of “tablets, syrups, ointments and other consumer products.” President Clinton saw it differently. On Aug. 20, 1998, two weeks after the embassy bombings in Kenya and Tanzania, he ordered the El-Shifa plant razed. In a feat of military technology, U.S. naval forces were able to pinpoint the plant with cruise missiles fired from at least 400 miles away. In a series of statements following the bombing, Clinton explained that “our goal was to destroy, in Sudan, the factory with which bin Laden’s network is associated.” The factory “was being used to produce materials for chemical weapons,” he asserted. His decision to strike was an “exercise of our inherent right of self-defense … to prevent and deter additional attacks by a clearly identified terrorist threat.” The strike in Sudan was subjected to withering scrutiny. Reports in The New York Times, The Wall Street Journal, The Washington Post and The New Yorker discredited the claim that the plant was involved in chemical weapons. Statements by administration officials defending the attack — and asserting Idris’ link to bin Laden — became increasingly hedged and oblique. Now, four years later, Idris hopes to persuade either Judge Lawrence Baskir of the U.S. Court of Federal Claims or U.S. District Judge Richard Roberts to give him a chance to clear his name and put the government to its proof in court. Stephen Brogan leads Idris’ legal team at the D.C. office of Jones, Day, Reavis & Pogue. Brogan’s relationship with Idris stretches back several years, but he assumed the head role on the El-Shifa matter in spring 2000, after several other lawyers had been involved. Shortly after the plant was bombed, Idris retained constitutional expert Laurence Tribe of Harvard Law School, Tribe confirms. Idris also turned to Akin, Gump, Strauss, Hauer & Feld. Led by partners George Salem, an advocate for Arab-American causes, and litigator Mark MacDougall, Akin Gump in 1999 won the release of $24 million in Idris’ funds that the Department of Treasury had frozen in U.S. bank accounts. Tribe and MacDougall say they no longer represent Idris. Tribe declines to discuss the nature of his work on the matter, which he says concluded when Brogan took over to pursue the current litigation. At the same time, Jones Day partner Jonathan Rose lobbied Congress for some kind of legislative remedy, but that effort has been fruitless so far. Tribe and Brogan came to know Idris during litigation that followed the 1991 collapse of the Bank of Credit and Commerce International. Saudi Sheik Khalid bin Mahfouz, then Idris’ boss, was implicated in the BCCI money-laundering scandal and eventually paid more than $200 million to escape possible U.S. charges stemming from the bank’s implosion. Tribe represented bin Mahfouz in the BCCI debacle, while Brogan represented another bank. BREAKING THE LINK Brogan now faces a formidable challenge in Idris’ two parallel cases. The suits allege the same set of facts, and seek essentially the same relief: at least $50 million to cover damage to the plant and a retraction of the government’s claims about Idris’ link to terrorists. But Brogan asserts a different legal theory in each case, which explains why they’re filed in two courts. Brogan argues, on the one hand, that the government’s destruction of the El-Shifa plant was a “taking” under the Fifth Amendment to the Constitution. Such claims must be brought in the federal claims court. But Brogan also contends that Idris is entitled to sue under the Federal Tort Claims Act, which under certain circumstances permits plaintiffs to overcome the sovereign immunity that generally shields the government from tort liability. Suits under that statute must be filed in federal district court. Either way, Idris is out of luck, according to the Department of Justice. Justice lawyers have asked Judges Baskir and Roberts to dismiss both cases. There’s no way a non-U.S. citizen with non-U.S. property can bring a suit under the takings clause, they say. And there’s no way a court can hear a tort claim that turns on the president’s exercise of his discretion as commander in chief. The government has not addressed the merits of Idris’ claims, arguing only that they should be knocked out on jurisdictional grounds. Brogan offers spirited challenges to those arguments, and says he’s got legal precedent on his side. But Judge Baskir at an oral argument Nov. 14 observed that the fundamental question in the dispute is whether the president can in effect be called in to court to justify his military decisions. Legal scholars say that judges would want to steer clear of challenges to the president’s military prerogatives under any circumstances — and are probably even more reluctant to tackle them in the midst of President George W. Bush’s war on terrorism. “My sense is that most judges would look hard for an out for the government on this one,” says one takings expert. Even some critics of sovereign immunity say that the courts should probably stay out of Idris’ case. “There is something to be said for the government acting with fearlessness in these circumstances,” says George Washington University law professor Jonathan Siegel, who has written about sovereign immunity issues. “The president should not have to worry about tort liability” when making tough military calls. As for the takings claim, Siegel says, “the question of why the president ordered military action is too sensitive for judicial consideration.” Brogan bridles at such arguments. “I view this as a police action gone wrong,” not a wartime mistake, says the son of a New York City cop. “This is something the law needs to think through, and it’s become even more important for the courts to do that as a result of current events.”

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