Sep
18
Ninth Circuit Bulldozes the Arms Export Control Act
Posted by Clif Burns at 2:20 pm on September 18, 2007
Category: Arms Export
Yesterday the U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of a lawsuit filed against Caterpillar by relatives who had been injured when Caterpillar D9 bulldozers were used to demolish homes in the Palestinian Territories. The court ruled that, because of the foreign policy issues implicated by the case, the complaint was subject to the political question doctrine and therefore not justiciable, i.e. not within any court’s jurisdiction.
This ruling was premised on the court’s finding that all the bulldozers had been sold to Israel under the Foreign Military Financing (FMF) program. According to the court:
[T]hese 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. See 22 U.S.C. § 2751 (stating that the purpose of the Arms Export Control Act, which authorizes the FMF program, is to support “effective and mutually beneficial defense relationships in order to maintain and foster the environment of international peace and security essential to social, economic, and political progressâ€).
Now this might make sense if Caterpillar manufactured an armored or military spec version of the D9 bulldozer. But it doesn’t. The Israeli Army customizes the civilian D9 to its own military specifications and then ironically renames these armored behemoths “Doobi” (Hebrew: דובי‎; lit. teddy bear). In fact, the U.S. Army has purchased armor kits from the IDF to convert D9s for use in Iraq.
The point of this is that Section 23 of the Arms Export Control Act, which authorizes the FMF program, only covers procurement of defense articles and services. If the D9 bulldozer is not a defense article, then the Ninth Circuit’s reliance on the AECA as a justification for finding that the law suit presents non-justiciable questions of foreign policy is misplaced. And if an unmodified D9 is now considered a defense article, it can’t be exported without a license under section 38 of the AECA, a conclusion that the folks at Caterpillar might find somewhat inconvenient. The Ninth Circuit, however, never looked behind the U.S. Government’s suspect decision to sell these items under the FMF program and, therefore, never saw this possible dilemma.
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Copyright © 2007 Clif Burns. All Rights Reserved.
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6 Comments:
Point of clarification: So if I understand your point since the Cat equipment isn’t a defense article by definition and the bulldozer itself is not a “construction service” as provided for in the act, the original sale was flawed?
In other words, would the inclusion of the bulldozer in the original sale have to have been a point in the lawsuit and if not properly included then they could have sued?
Linda — The possibility remains, I think, that the Court could have found other reasons to justify invoking the political question doctrine rather than relying so directly on the FMF statute.
Clif: I get your point and agree. I don’t think I asked my question well. Setting aside the judges decision. If the Israeli group challenged the original transaction as not allowed under FMF (ie. outside the scope of the AECA) would that have given them recourse against the U.S. government?
Not a lawyer and just curious.
Linda
Linda: If I understand your question correctly, I think the answer is no. The question is could the plaintiffs sue the U.S. Government for failing to adhere to the FMF requirement that only defense articles or services (or design and construction services) are eligible. The problem with that law suit is its not clear that the plaintiffs, or anyone else, has suffered a direct injury because of that decision and has standing to challenge it. Only the taxpayers were directly injured, and there are a fair number of cases saying that such injury doesn’t even support taxpayer standing.
You might recall one of Bill Reinch’s anecdotes about the export of the hulk of the ex-USS Bennington as scrap. Schnietzer Steel, recently collared for FCZPA violations, filed suit against the Dept. of the Navy in 1995 alleging that the export of the hulk violated the AECA and the APA. The district court dismissed on the basis of mootness because the hulk was already in India being torn down, but gave as a secondary reason that the plaintiff lacked standing to request relief on the basis of the AECA. I don’t think it was a published opinion but some idle law clerk ought to be able to find it in the DC District’s records.
I agree that at the time the Caterpillar D9 Bulldozer was exported from the United States it could have been considered a commercial item: defined by the U.S. Department of Commerce. However, at the time the D9 Bulldozer was used it had been “specifically designed, developed, configured, adapted, or modified for military application.†(22 CFR 120.3) In other words, at the time of use it would fit the criteria of a Defense Article; as defined by the U.S. Department of State.
It appears from this example; commercial items that can be used for military purposes were approved for FMF. Section 23 of the Arms Export Control Act, which authorizes the FMF program, only covers procurement of defense articles and services and design and construction services by friendly foreign countries and international organizations.
The Arms Export Control Act section IV defines “Defense Article†as:
(3) “defense articleâ€, except as provided in paragraph (7) of this section, includes—
(A) any weapon, weapons system, munition, aircraft, vessel, boat, or other implement of war,
(B) any property, installation, commodity, material, equipment, supply, or goods used for the purposes of making military sales,
(C) any machinery, facility, tool, material, supply, or other item necessary for the manufacture, production, processing, repair, servicing, storage, construction, transportation, operation, or use of any article listed in this paragraph, and
(D) any component or part of any article listed in this paragraph,
but does not include merchant vessels or (as defined by the Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.]) source material (except uranium depleted in the isotope 235 which is incorporated in defense articles solely to take advantage of high density or pyrophoric characteristics unrelated to radioactivity), byproduct material, special nuclear material, production facilities, utilization facilities, or atomic weapons or articles involving Restricted Data;
It seems that under the AECA definition a Caterpillar D9 would qualify as an AECA “Defense Article.†If Defense Article as defined by the U.S. Department of State is implemented into qualifying for FMF: it would require that you take all U.S. Department of Commerce controlled items out of qualifying for FMF. If all of the commercial parts were taken out of an F-16: the remainder would be giant pile of U.S Department of State Defense Articles. Most every military end item incorporates a significant number of commercial parts and components.
I think the Ninth Circuit Court’s ruling is correct. I don’t think it changes the export requirements at all. A Caterpillar D9 Bulldozer still has the Export Control Classification Number 2B999.h.2. and the “Doobi,†as well as, the Israeli military modification kit for the Caterpillar D9 are listed on the United States Munitions list
