03 Oct Corporate Conduct Protected by Political Question Doctrine
The Ninth Circuit has rendered another fascinating case on the use of the political question doctrine by corporations that allegedly aid and abet international law violations. In Corrie v. Caterpillar, plaintiffs alleged numerous violations of international law against Caterpillar arising from the bulldozing by Israeli Defense Forces (IDF) of Palestinian homes.
According to plaintiffs’ complaint, Caterpillar sold the bulldozers to the IDF despite its actual and constructive notice that the IDF would use them to further its home destruction policy in the Palestinian Territories; a policy plaintiffs contend violates international law….
Caterpillar raised numerous defenses, including the political question doctrine. Noting that the bulldozers were financed by the United States as part of U.S. military aid to Israel, the Court concluded that a finding of liability against Caterpillar would necessarily require the Court to cast judgment on the foreign policy decisions of the United States.
The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative [branches] … and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision….
The decisive factor here is that Caterpillar’s sales to Israel were paid for by the United States. Though mindful that we must analyze each of the plaintiffs’ “individual claims,” id. at 547, each claim unavoidably rests on the singular premise that Caterpillar should not have sold its bulldozers to the IDF. Yet these sales were financed by the executive branch pursuant to a congressionally enacted program calling for executive discretion as to what lies in the foreign policy and national security interests of 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. 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. “Any such policy condemning the [Israeli government] must first emanate from the political branches.” 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.
This makes perfect sense to me. As more and more claims are brought against corporations for aiding and abetting alleged illegal government conduct in the international arena, we can expect those corporations to invoke defenses that governments have frequently used. In this case the political question doctrine shielded a corporation from liability based on express U.S. support (through financing and military aid) of the Israeli Defense Forces.
An open question is whether the political question doctrine could be invoked for corporate conduct aiding and abetting international law violations by foreign governments where the nexus to the United States government is not so obvious.
Having said that, I think one could reasonably question the consistency of this case with the Ninth Circuit’s Alperin v. Vatican Bank case. That case involved Holocaust bank claims against the Vatican Bank and the Ninth Circuit distinguished between war-related claims and property claims, holding that the former fell within the political question doctrine but the latter did not. Given that both Alperin and Corrie deal with the destruction/confiscation of property, why the distinction? I would be curious what others think about the consistency of this case with Alperin v. Vatican Bank.
As always, opinions differ on the issue of political questions doctrine under the Alien Tort Claims Act in the United States. In this regard, you may want to consider another earlier decision by 9th Circuit, in Sarei v. Rio Tinto (2006), where the court held that none of the plaintiffs claims present nonjusticiable political questions. See pp. 8959-8560: “We do not understand Vatican Bank as foreclosing the plaintiffs’ claims that relate to the PNG regime’s alleged war crimes, but instead read its holding to apply only to the narrowercategory of war crimes committed by enemies of the United States. Considering such claims would necessarily require us to review the acts of an enemy of the United States, which would risk creating a conflict with the steps the United States actually chose to take in prosecuting that war. See id.at 560 (expressing unwillingness to “intrude unduly on certain policy choices and value judgments that are constitutionally committed to the political branches . . . for we do not and cannot know why the Allies made the policy choice not to prosecute the Ustasha and the Vatican Bank.”) (internal citations and quotation marks omitted). Reading Vatican Bank to preclude any ATCA war… Read more »
I would really like to see the Supreme Court address this issue is more depth, if not this particular (politically charged) case. It seems like something in the individual circuits are very likely to have disparate opinions on.
Also, I’d remind Congress that they can spare all of us the trouble and simply repeal the ATCA statute, which saw little use for several centuries.