* Doe v. United States (Ct. Fed. Claims Nov. 10, 2010) (rejecting 5th Am takings claim by Iraqi citizen in re Fallujah)
A very interesting opinion from the Court of Federal Claims three weeks ago. In brief, the plaintiff is an Iraqi resident of Fallujah whose home was occupied by Marines in the summer of 2004. It seems the Marines razed a wall surrounding the property, and that after the Marines departed unknown persons ransacked the house itself. Coalition forces offered a settlement payment as compensation for the fence and for displacing the plaintiff, but the plaintiff elected instead to sue, invoking the 5th Amendment Takings Clause.
In this opinion, the Court of Federal Claims relies on Eisentrager (and distinguishes Boumediene) en route to determining that a non-citizen with no substantial connections to the United States lacks standing to invoke 5th Amendment protections, and also concludes that the Takings Clause in any event does not require the government to pay compensation where, as here, its property-related actions stem from military necessity (rejecting the plaintiff’s argument that necessity should be construed in this context as requiring temporal imminence). The 55-page opinion explores these and other matters in considerable detail, and is well worth a read.
By Robert M. Chesney
Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.
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