Plaintiffs seek to avoid this conclusion by alleging that
"soldiers using the `comfort women' were normally charged a
fixed price" and that "a portion of the revenue was taken by the
military." Id. ¶ 55. This argument, too, must be rejected. The
mere fact that soldiers allegedly paid money in order to access
"comfort stations," is insufficient to justify characterizing
the challenged conduct as commercial in nature. As the D.C.
Circuit noted in Cicippio, the fact that ransom "was allegedly
sought from relatives of the hostages could not make an ordinary
kidnapping a commercial act any more than murder by itself would
be treated as a commercial activity merely because the killer is
paid." Cicippio, 30 F.3d at 168. Here, as in Nelson, the
challenged conduct "boils down" to an abuse — albeit an
extremely outrageous and inhumane one — of Japan's military
power, an activity that is "peculiarly sovereign in nature."
Nelson, 507 U.S. at 362, 113 S.Ct. 1471; see also Doe v.
Unocal Corp., 963 F. Supp. 880, 887-88 (C.D.Cal. 1997) (relying
on Nelson to dismiss claims against the Burmese government
where the plaintiffs alleged that the Government used violence,
intimidation, and slavery in connection with a commercial
pipeline project). Therefore, because the court concludes that
Japan's operation of "comfort stations" was not a commercial
activity within the meaning of the FSIA, the commercial activity
exception does not apply in this case.*fn8
Accordingly, as the court is persuaded that none of the
exceptions to the FSIA relied upon by plaintiffs are applicable,
Japan's motion to dismiss for lack of subject matter
jurisdiction must be granted.
C. Political Question Doctrine
Even if Japan did not enjoy sovereign immunity, this case must
also be dismissed because it is nonjusticiable. Japan argues
that plaintiffs' claims present a nonjusticiable political
question. In its statement of interest the United States also
argues that the political question doctrine requires
dismissal.*fn9 The roots of the political question doctrine
can be traced back to early federal jurisprudence. In Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 169, 2 L.Ed. 60 (1803),
Chief Justice Marshall wrote for the Supreme Court that
"[q]uestions, in their nature political . . . can never be made
in this court." Of course, this statement is not entirely
accurate, as federal courts routinely adjudicate cases of a
political nature. See, e.g., Japan Whaling Ass'n v. American
Cetacean Soc., 478 U.S. 221, 229, 106 S.Ct. 2860, 92 L.Ed.2d
166 (1986) (noting that "not every matter touching on politics
is a political question").
The Supreme Court has articulated two primary justifications
for the political question doctrine: "the appropriateness under
our system of government of attributing finality to the action
of the political
departments and also the lack of satisfactory criteria for a
judicial determination." Baker v. Carr, 369 U.S. 186, 210, 82
S.Ct. 691, 7 L.Ed.2d 663 (1962) (quoting Coleman v. Miller,
307 U.S. 433, 454-55, 59 S.Ct. 972, 83 L.Ed. 1385 (1939))
(internal quotations omitted). The first of these considerations
"is primarily a function of the separation of powers," Baker,
369 U.S. at 210, 82 S.Ct. 691, while the second is grounded in
the inherent "limitation[s] of the judiciary as a decisional
body." Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of
Petroleum, 577 F.2d 1196, 1203 (5th Cir. 1978).
Certain types of cases often have been found to present
political questions. See Baker, 369 U.S. at 211-22, 82 S.Ct.
691. One such category is cases involving questions of foreign
relations. It is well-established that "[t]he conduct of the
foreign relations of our government is committed by the
Constitution to the executive and legislative — `the political'
— departments of the government, and the propriety of what may
be done in the exercise of this political power is not subject
to judicial inquiry or decision." Oetjen v. Central Leather
Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918).
Accordingly, "many [foreign relations] questions uniquely demand
single-voiced statement of the Government's views." Baker, 369
U.S. at 211, 82 S.Ct. 691 (citing Doe v. Braden, 57 U.S. (16
How.) 635, 657, 14 L.Ed. 1090 (1853)). The Supreme Court further
has cautioned that decisions relating to foreign policy "are
delicate, complex, and involve large elements of prophecy. They
are and should be undertaken only by those directly responsible
to the people whose welfare they advance or imperil. They are
decisions of a kind for which the Judiciary has neither
aptitude, facilities nor responsibility." Chicago & S. Air
Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct.
431, 92 L.Ed. 568 (1948).
However, it is equally clear that not all cases implicating
foreign relations present political questions. See Baker, 369
U.S. at 211, 82 S.Ct. 691 (noting that it is "error to suppose
that every case or controversy which touches foreign relations
lies beyond judicial cognizance"). For example, courts certainly
possess "the authority to construe treaties and executive
agreements." Japan Whaling Ass'n, 478 U.S. at 230, 106 S.Ct.
2860. Further guidance in determining what constitutes a
political question comes from Baker v. Carr, in which the
Supreme Court announced six factors that must be considered when
deciding if a case presents a political question. In Baker the
Court held that:
Prominent on the surface of any case held to involve
a political question is found a textually
demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack of
judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding
without an initial policy determination of a kind
clearly for nonjudicial discretion; or the
impossibility of a court's undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment
from multifarious pronouncements by various
departments on one question.
Baker, 369 U.S. at 217, 82 S.Ct. 691 (emphasis added). If any
of these six factors "is inextricable from the case at bar,"
then "dismissal for non-justiciability on the ground of a
political question's presence" is appropriate. Id. In
Goldwater v. Carter. Justice Powell summed up the Baker
criteria as follows: "(i) Does the issue involve resolution of
questions committed by the