Tuesday, September 18, 2007
Ninth Circuit Rejects Suit Over Israel’s Use of Bulldozers in Territories
Employment of Equipment Purchased by U.S. to Aid Ally Is Political Question, Court Says
By STEVEN M. ELLIS, Staff Writer
Objections to an American company’s sale of bulldozers to the government for use by the Israeli military, which used the equipment to demolish homes in the Palestinian territories, must be raised in the political process and not by litigation, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed a ruling by U.S. District Judge Franklin D. Burgess of the Western District of Washington that the courts have no jurisdiction over a suit by the family of an American citizen killed in the territories during a home demolition carried out by the Israeli Defense Forces using a bulldozer manufactured by the defendant, Caterpillar, Inc., and purchased by the U.S. government.
Writing for the panel, Judge Kim McLane Wardlaw said the matter presented a political question and that it is beyond the function of the courts to question the executive and legislative branches’ decision to provide military aid to Israel.
Death of Student
Cynthia and Craig Corrie filed suit against Caterpillar over the March 16, 2003 death of their daughter, Rachel Corrie, a 23-year old student at the Evergreen State College in Olympia, Washington and member of the International Solidarity Movement. Rachel Corrie had traveled to Rafah, a town on the Gaza Strip near the Egyptian border, to protest and act as a human shield against the demolition of homes in the territories by the IDF.
The Corries claim that Rachel Corrie was trying to prevent a demolition when she was run over by a bulldozer manned by two Israeli soldiers. The Israeli government says that her death was accidental, and that she was crushed by debris falling from the demolished home.
The Corries’ complaint alleged that the Israeli Defense Forces’ home demolitions violated international and state law, and that Caterpillar, in providing the Israelis with specifically designed D9 bulldozers knowing they would be used for such a purpose, aided and abetted the violations. The families of 16 Palestinians who were killed or wounded in similar demolitions joined the Corries in the complaint.
Contending that the court had jurisdiction over the Palestinian families’ claims under the Alien Tort Statute, and over the Corries’ claims under the general federal question jurisdiction statute, the plaintiffs sought damages, declaratory relief, and an injunction directing Caterpillar to cease providing equipment to the Israeli Defense Forces so long as the demolitions continued.
However, the complaint failed to address the fact that the bulldozers, including the one involved in Rachel Corrie’s death, were actually financed by the U.S. government, Wardlaw said.
Since occupying and taking control of the West Bank and Gaza Strip following the Six Day War in 1967, Israel has contracted with Caterpillar, the world’s leading manufacturer of heavy construction and mining equipment, to purchase bulldozers to demolish homes in the territories.
According to Caterpillar, the United States government has approved and financed all contracts between Israel and Caterpillar dating back to at least 1990, and Caterpillar does not sell products to the government of Israel without United States government approval.
In Sept. of 2001, the Department of Defense granted funding approval for the Israeli government’s purchase of 50 Caterpillar D9 bulldozers as part of the Foreign Military Financing program under the federal Arms Export Control Act. The program allows foreign governments to enter into contracts directly with American defense contractors, and then apply to the agency for approval of funding on a case-by-case basis.
Arguing that the plaintiffs had failed to state a claim under Federal Rule of Civil Procedure 12(b)(6), and that the government’s action deprived the district court of subject matter jurisdiction under the political question doctrine, Caterpillar moved to dismiss.
The district judge granted the motion, holding that he was precluded from reaching the merits of the claims and, alternatively, that all of the plaintiffs’ claims failed on the merits.
The appellate panel ruled that Caterpillar’s motion, which attacked the substance of the complaint’s jurisdictional allegations, was more appropriately construed as arising under Rule 12(b)(1). As such, the court could look beyond the face of the complaint to determine whether the case involved a political question.
Doing so, Wardlaw concluded that the government’s action put the matter beyond the court’s reach.
“The decisive factor here is that Caterpillar’s sales to Israel were paid for by the United States,” she said.
Noting that the government’s decision to support a foreign government with military aid was constitutionally committed to a coordinate political department, inherently entangled with the conduct of foreign relations, and committed to the political branches, Wardlaw concluded that the case presented a political question. As a result, the court was without jurisdiction to consider the matter further under Article III of the Constitution, she said.
Elaborating, she wrote:
“Allowing this action to proceed would necessarily require the judicial branch of our government to question the political branches’ decision to grant extensive military aid to Israel. It is difficult to see how we could impose liability on Caterpillar without at least implicitly deciding the propriety of the United States’ decision to pay for the bulldozers which allegedly killed the plaintiffs’ family members.”
Wardlaw was joined in her opinion by Judges Arthur L. Alarcón and Michael Daly Hawkins.
The case is Corrie v. Caterpillar, Inc., 05-36210.
Copyright 2007, Metropolitan News Company