The Ninth Circuit Rejects Foreign Policy By Civil Lawsuit

The Ninth Circuit today affirmed the dismissal of a complaint by the family of Rachel Corrie, who was crushed to death by a bulldozer operated by the Israel Defense Forces while protesting the destruction of Palestinian homes, against Caterpillar, the manufacturer of the bulldozers. The plaintiffs also included the families of various Palestinians. The court did not wade into the facts far enough to grasp the extent to which Ms. Corrie was actively abetting the smuggling of weapons used in terrorism against Israel, nor to discuss who was really at fault in the specific incident that led to Ms. Corrie’s death. Instead, it dismissed under the political question doctrine, finding that, because the bulldozers were financed and permitted to be sold by U.S. aid to Israel, it was not the place of the courts to allow a civil lawsuit to decide such explosive foreign policy questions and possibly resolve them differently than would the Executive and Legislative Branches:

The decisive factor here is that Caterpillar’s sales to Israel were paid for by the United States. . . .

+++

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.

+++

We cannot intrude into our government’s decision to grant military assistance to Israel, even indirectly by deciding this challenge to a defense contractor’s sales.

+++

In this regard, we are mindful of the potential for causing international embarrassment were a federal court to undermine foreign policy decisions in the sensitive context of the Israeli-Palestinian conflict. Plaintiffs argue that the United States government has already criticized Israel’s home demolitions in the Palestinian Territories. They point, for example, to former Secretary of State Powell’s statement that “[w]e oppose the destruction of [Palestinian] homes – we don’t think that is productive.” But that language is different in kind from a declaration that the IDF has systematically committed grave violations of international law, none of which the United States has ever accused Israel of, so far as the record reveals. Diplomats choose their words carefully, and we cannot subvert United States foreign policy by latching onto such mildly critical language by the Secretary of State. Cf. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386 (2000) (“[T]he nuances of the foreign policy of the United States . . . are much more the province of the Executive Branch and Congress than of this Court.”) (internal quotations omitted).
It is not the role of the courts to indirectly indict Israel for violating international law with military equipment the United States government provided and continues to provide. . . . Plaintiffs may purport to look no further than Caterpillar itself, but resolving their suit will necessarily require us to look beyond the lone defendant in this case and toward the foreign policy interests and judgments of the United States government itself.

Three cheers for the Ninth Circuit panel (consisting, by the way, of two Clinton appointees and a Carter appointee) for getting this one right.