Flor Saldana v. Occidental Petroleum Corp ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLOR MARINA CHAVARRO No. 12-55484
SALDANA; HECTOR JULIO MARTINEZ
CHAVARRO; FLOR AIDE MARTINEZ D.C. No.
CHAVARRO; ANA MILENA 2:11-cv-08957-
MARTINEZ CHAVARRO; LUCY PA-AJW
ESPERANZA GONZA SANTAFE;
PAOLA ANDREA GOYENECH
GONZALEZ; EUFROSINA DEL OPINION
CARMEN GOYE G.; ROSA MARIA
RAMIREZ GOMEZ; NELSON PRIETO
RAMIREZ; MIREYA PRIETO RAMIREZ;
YUDITH PRIETO RAMIREZ;
MAXIMINA CHAMUCERO DE PRIETO;
BELSY YASMIN SOLANO; JAZMIN
ALEJANDRA PRIETO SOLANO;
H.N.M.C.; T.K.G.G.; R.A.P.S.;
J.E.P.S.,
Plaintiffs-Appellants,
v.
OCCIDENTAL PETROLEUM
CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
2 SALDANA V. OCCIDENTAL PETROLEUM
Argued and Submitted
June 4, 2014—Pasadena, California
Filed December 15, 2014
Before: Alex Kozinski, Stephen S. Trott, and
Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Trott
SUMMARY*
Political Question Doctrine
The panel affirmed the district court’s dismissal of an
action brought under the Alien Tort Statute and California
tort law by family members of three union leaders killed in
Colombia in August 2004 by members of the Colombian
National Army’s 18th Brigade.
Plaintiffs contended that Occidental Petroleum Corp.
should be held liable for the 18th Brigade’s alleged war
crimes, crimes against humanity, and assorted torts arising
out of the 18th Brigade’s murder of the three union leaders.
Plaintiffs’ theory was that Occidental, via its Colombian
subsidiary, provided funding to the 18th Brigade, which gave
Occidental operational control over the 18th Brigade,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SALDANA V. OCCIDENTAL PETROLEUM 3
knowing full well that the 18th Brigade was committing
murders and other human rights abuses.
The panel affirmed the district court’s dismissal of the
complaint pursuant to Fed. R. Civ. P. 12(b)(1) on the ground
that it raised nonjusticiable political questions. The panel
concluded that plaintiffs’ claims were inextricably bound to
the inherently political question of the propriety of the United
States’ decision to provide $99 million worth of training to
the 18th Brigade at the same time and for the same purpose
as Occidental allegedly providing $6.3 million.
Concurring, Judge Trott wrote separately to augment the
background material that demonstrated that the complaint
raised nonjusticiable political questions, thus depriving the
courts of jurisdiction to entertain it.
COUNSEL
Terrence P. Collingsworth (argued), Conrad & Scherer, LLP,
Washington, D.C., for Plaintiffs-Appellants.
Matthew T. Kline (argued) and Dimitri D. Portnoi,
O’Melveny & Myers LLP, Los Angeles, California; Jonathan
Hacker and Anton Metlitsky, O’Melveny & Myers LLP,
Washington, D.C., for Defendant-Appellee.
4 SALDANA V. OCCIDENTAL PETROLEUM
OPINION
PER CURIAM:
Family members of three union leaders killed in
Colombia in August 2004 by members of the Colombian
National Army’s (“CNA”) 18th Brigade brought this lawsuit
in 2011 in Los Angeles, California, against Occidental
Petroleum Corporation (“Occidental”), a Delaware
corporation with headquarters in Los Angeles. Plaintiffs’
complaint contains ten causes of action, three under
28 U.S.C. § 1350, known as the Alien Tort Statute, and the
rest under California tort law. As correctly summarized by
the district court, Plaintiffs contend that “Occidental should
be liable for the 18th Brigade’s alleged war crimes, crimes
against humanity, and assorted torts arising out of the 18th
Brigade’s murder of the three union leaders.” Plaintiffs’
theory is that Occidental provided funding to the 18th
Brigade, which gave Occidental operational control over the
18th Brigade, knowing full well that the 18th Brigade was
committing murders and other human rights abuses. The
district court dismissed the complaint pursuant to Fed. R. Civ.
P. 12(b)(1) on the ground that it raised nonjusticiable political
questions. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
I
A
This case has its genesis in a complex internal armed
conflict that Colombia, often with the United States’
assistance, has struggled with for decades. Since the 1960s,
leftist guerrilla groups such as the Revolutionary Armed
SALDANA V. OCCIDENTAL PETROLEUM 5
Forces of Colombia (las Fuerzas Armadas Revolucionarias de
Colombia, or the “FARC”) and National Liberation Army (el
Ejército de Liberación Nacional, or the “ELN”) have fought
to overpower the Colombian government, often resorting to
drug trafficking and kidnaping to fund their efforts. The
violence in Colombia peaked in the late 1990s, and, in 1997,
the U.S. Department of State designated both the FARC and
ELN as foreign terrorist organizations. In 2002, Colombian
President Álvaro Uribe, with the United States’ backing,
militarized much of the country in an effort to eradicate the
guerrillas. Plaintiffs’ claims dissect one small fraction of this
conflict.
B
Occidental de Colombia, Inc. (“OxyCol”), a Colombian
subsidiary of Occidental, and Ecopetrol, Colombia’s state-
owned oil company, began oil exploration efforts in the
Arauca region of northeast Colombia in the 1980s. They
discovered one of the largest oil fields in the country, and
began extracting oil in 1986. Together, OxyCol and
Ecopetrol built the Caño Limón pipeline (the “Pipeline”) to
transport the oil to the coast. Ecopetrol, OxyCol, and a
Spanish company, Repsol, own the oilfield and Pipeline, and
OxyCol operates the Pipeline.
The Pipeline begins in the Arauca region near the border
with Venezuela and ends at the Carribean port of Coveñas.
The first 110 miles of the Pipeline cut through especially
volatile guerrilla territory. The guerrillas targeted the
Pipeline to sabotage the Colombian economy and protest the
exploitation of one of Colombia’s most lucrative resources.
Plaintiffs allege that OxyCol paid millions of dollars in “war
taxes” to the ELN and FARC, starting in the 1980s and
6 SALDANA V. OCCIDENTAL PETROLEUM
continuing through at least 2000, so that it could operate the
Pipeline without interference. After the United States
declared the ELN and FARC terrorist organizations in 1997,
these payments became illegal.
C
Guerrilla attacks on the Pipeline continued to increase
into the early 2000s, with a high of 170 attacks in 2001. In
2002, because of Colombia’s inability to secure the Pipeline
on its own and the importance of the Pipeline to United States
energy security, the United States created a $99 million aid
program to help secure the Pipeline. There can be no doubt
that funding, training and equipping the 18th Brigade became
an important component of that program. On April 10, 2002,
the State Department’s Undersecretary for Public Affairs
testified before a Subcommittee of the Committee of
Appropriations of the House of Representatives in connection
with an appropriation of funds for fiscal year 2003. His oral
testimony and a written statement included the following:
Since July of 2000, the United States has
provided Colombia with $1.7 billion to
combat narcotics trafficking, terrorism,
strengthen democratic institutions and human
rights, foster socioeconomic development and
mitigate the impact of violence on Colombian
civilians.
....
We are also helping municipalities
increase their ability to manage their policies
and their funds. We are working closely with
SALDANA V. OCCIDENTAL PETROLEUM 7
the prosecutor general’s office to set up
human rights units throughout the country to
facilitate the investigation and prosecution of
human rights abuses.
....
Expanding the authorities for the use of
aircraft and other assets to cover terrorist and
other threats to Colombian democracy will, of
course, not ensure that this battle will be won,
because they are working against multiple
threats. However, we believe that if you
approve this proposition, they will give us the
flexibility we need to help the government of
Colombia more efficiently and more
effectively attack the problems that they face.
....
In the longer-term, we are asking for $439
million in . . . funds in our FY-03 budget
request to sustain our Plan Colombia
programs, as well as $98 million in . . . funds
to train and equip Colombian military units
protecting the Caño Limón oil pipeline. The
$439 million request includes $275 million
for the Colombian military and police, and
$164 million for democracy programs,
alternative development, assistance to
vulnerable groups, and promotion of the rule
of law. These funds, together with the
terrorism supplemental, will be crucial as the
next Colombian government works to
8 SALDANA V. OCCIDENTAL PETROLEUM
improve security, build effective democratic
institutions, and foster economic growth.
Foreign Operations, Export Financing, and Related
Programs Appropriations for 2003: Hearing Before the
Subcomm. on Foreign Operations, Export Financing, and
Related Programs of the Comm. on Appropriations, 107th
Cong. 276–78, 290 (2002).
An assistant secretary of defense for international security
affairs then provided the Subcommittee with the Defense
Department’s perspective on the United States’ involvement
in Colombia, noting:
The Administration has proposed to
Congress $6 million in FY02 supplemental
funding and $98 million in FY03 Foreign
Military Finance funding to train and equip
vetted Colombian units to protect that
country’s most threatened piece of critical
economic infrastructure – the first 170
kilometers of the Cano-Limon oil pipeline.
This segment is the most often attacked. U.S.
assistance and training will support two
Colombian Army Brigades, National Police
and Marines operating in the area. These
units through ground and air mobility will be
in a better position to prevent and disrupt
attacks on the pipeline and defend key
facilities and vulnerable points such as
pumping stations.
Id. at 303–04. In addition, the acting commander in chief of
the United States Southern Command provided the
SALDANA V. OCCIDENTAL PETROLEUM 9
Subcommittee with a written statement on the appropriations,
observing:
In addition to counterdrug assistance, the
Administration has proposed to Congress $98
million, for FY 2003, to help Colombia to
enhance the training and equipping of units to
protect the Caño Limón-Covenas oil pipeline,
one of the most vulnerable elements of their
economic infrastructure. The FARC and ELN
are active in carrying out attacks against
Colombia’s energy infrastructure. Attacks on
the Caño Limón-Covenas pipeline cost the
Government of Colombia more that $40
million per month in revenues when the
pipeline is not operational.
....
The Administration has included $6
million in the FY 2002 Supplemental to begin
training. The first unit to be trained for this
program will be the recently human rights
vetted, Arauca-based Colombian Army 18th
Brigade.
Id. at 344–45.
In 2003, the United States and Colombian governments
formalized a program and coordinated security strategy in a
signed memorandum of agreement. The government-to-
government program provided both lethal and non-lethal
support to the 18th Brigade, including helicopters, equipment,
logistical and infrastructure support, and training. The
10 SALDANA V. OCCIDENTAL PETROLEUM
Narcotics Affairs Section and Military Group of the U.S.
Embassy in Bogotá administered the aid program day-to-day.
To implement the policy of assisting Colombia, Congress
appropriated $71 million in 2002 and 2003 to buy helicopters
and related support for the 18th Brigade, and $28 million to
provide the 18th Brigade with equipment and training by U.S.
Special Forces. The training by the U.S. Special Forces
began in January 2003, though the helicopters were delayed
until 2005. A 2005 letter to Congress from the United States
Government Accountability Office (“GAO”) reported that:
U.S. Special Forces provided training and
equipment for about 1,600 Colombian Army
soldiers to improve their ability to act quickly
in minimizing terrorist attacks along the Caño
Limón pipeline. In November 2002, a team of
U.S. Special Forces traveled to Arauca to
assess the area and determine the training
needs of the Colombian Army. In January
2003, U.S. Special Forces started training in
Arauca and planned for training to continue
through December 2004. U.S. Special Forces
focused on helping the Colombian Army take
a more proactive and aggressive approach to
defend the pipeline; regain control of the area
around the pipeline; and prevent, interdict,
and disrupt the insurgents before they attack
the pipeline. Training included developing
quick reaction capabilities, small unit tactics,
planning and conducting operations,
reconnaissance, collecting and analyzing
timely intelligence, and medical support.
SALDANA V. OCCIDENTAL PETROLEUM 11
D
In May 2004, Ecopetrol and the Colombian Ministry of
National Defense entered into an Inter-Institutional
Cooperation Agreement (the “Agreement”). Neither
Occidental nor OxyCol were signatories to this agreement.
In it, Ecopetrol agreed to provide the Ministry with financial
support in exchange for the Ministry’s increased protection of
the Pipeline. Ecopetrol agreed to provide approximately $6.3
million worth of assistance from its joint account with
OxyCol. The support Ecopetrol pledged to the Colombian
National Army’s 18th Brigade explicitly included support in
kind for land transportation, air transportation, health
services, communications, canine maintenance, and other
general and operational expenses. In exchange, the
Colombian Ministry of Defense would “provide special
attention, based on its own judgment, to the activities aimed
at maintaining the conditions of protection and security of
Ecopetrol’s activities.” The Agreement specified that the
Ministry would not use any of Ecopetrol’s funds for lethal
purposes, would respect human rights and international
humanitarian laws, could divert its attention elsewhere as
needed, and could unilaterally terminate the Agreement for
any reason.
The Agreement also created a Supervisory Group and
Coordination Committee to implement the Agreement. The
Supervisory group, made up of three “superior officers”
designated by the Ministry, was charged with overseeing the
“correct allocation of the resources” and “implementation of
the foreseen security operations, maintenance, and protection
plans.” The Coordination Committee, consisting of three
Ecopetrol representatives (including a representative of
OxyCol) and six military representatives, was to “direct the
12 SALDANA V. OCCIDENTAL PETROLEUM
execution of the Agreement [to achieve] high levels of
efficacy and transparency.” Specifically, the Coordination
Committee would evaluate the Supervisory group, the
efficiency and impact of the Agreement on oil operations, and
the Agreement’s development and necessary corrective
measures; keep records related to the execution of the
Agreement; ensure that the Agreement would not negatively
affect the relationships between the parties and the
community; and address unforeseen circumstances that could
hinder the execution of the Agreement. Moreover, the
Agreement stated that, notwithstanding the powers vested in
the Coordination Committee, “the strategic and operational
control of the activities carried out by the” Ministry of
National Defense and the various branches of the Colombian
military “shall be the exclusive responsibility of th[ose]
institutions.”
II
A
In August 2004, after the United States and OxyCol had
both begun to provide funding to the CNA, four members of
the 18th Brigade assisted by one civilian murdered the three
union leaders in Caño Seco, roughly sixty kilometers from the
Pipeline. The soldiers, and later high-level officials from the
Colombian government, claimed that the leaders were
guerrilla members who had attacked the soldiers, and that the
soldiers merely returned fire. The union leaders’ family
members, on the other hand, said that the soldiers executed
the leaders after they left one of their homes with their hands
in the air.
SALDANA V. OCCIDENTAL PETROLEUM 13
The union leaders and the social and trade organizations
to which they belonged had protested the environmental
destruction caused by the Pipeline and OxyCol’s plan to drill
for oil on or near land belonging to the U’Wa indigenous
people. They also criticized the CNA for committing “acts of
barbarity” in an effort to protect the Pipeline. According to
the complaint, the CNA retaliated against the leaders because
of their social activism by conducting illegal searches and
detentions of the leaders, their family members, and members
of their social and trade organizations.
B
The killings spurred various criminal, disciplinary, and
administrative proceedings in Colombia. All of the actions
that have been formally resolved and are included in the
record found that the soldiers wrongly executed the union
leaders without any provocation, but did not do so at the
direction of the CNA. Plaintiffs imply nevertheless that the
soldiers killed the union leaders because the leaders opposed
OxyCol’s oil exploitation in the region.
C
We note that the Colombian proceedings’ conclusion that
the killings were not instigated by the government was
partially corroborated by Special Rapporteur Philip Alston of
the United Nations Office of the High Commissioner for
Human Rights. In 2010, Mr. Alston reported to the General
Assembly on extrajudicial killings of civilians in Columbia.
He dismissed the idea that such killings “were committed as
part of an official policy or that they were ordered by senior
government officials.”
14 SALDANA V. OCCIDENTAL PETROLEUM
D
In addition, since 2004, the State Department has issued
a series of official certifications to Congress stating “that the
Colombian Government and Armed Forces are meeting
statutory criteria related to human rights and severing ties to
paramalitary groups.” These certifications were required by
law in order to obligate funds appropriated by Congress to the
Colombian Armed Forces. Consolidated Appropriations Act
of 2004, Pub. L. No. 108–199, § 563(a)(1), (3), 118 Stat. 3,
193 (2004).
III
A
Seven years after the killings, Plaintiffs filed suit against
Occidental in the Central District of California under the
Alien Tort Statute, 28 U.S.C. § 1350, and California state
law. Plaintiffs claimed that Occidental, via its Colombian
subsidiary, OxyCol, provided purposeful and substantial
assistance to the 18th Brigade before and after the killings.
They allege that Occidental hired the 18th Brigade as its
personal security force, and exercised operational control
over the 18th Brigade, all the while knowing that the 18th
Brigade would likely commit human rights abuses. Their
complaint includes the following allegations:
88. Occidental knew or should have
known that for years preceding the decedents’
murders, there were widespread human rights
violations in Arauca committed by the CNA,
especially by the 18th Brigade.
SALDANA V. OCCIDENTAL PETROLEUM 15
89. The CNA, directly or indirectly (by
supporting right-wing paramilitary groups),
participated in numerous massacres of
civilians and the disappearances,
extra-judicial killings, arbitrary detentions,
and beatings of social protestors.
....
111. Given the long and well-publicized
history of the CNA’s human rights violations
(especially those of the 18th Brigade) and
Occidental’s close relationship with it,
Occidental must have known of the CNA’s
human rights abuses.
....
113. Despite this human rights
“problem,” Occidental continued to provide
the CNA with financial and other material
assistance in order to further Occidental’s
financial gains from the Colombian operation.
....
172. When Occidental entered into the
renewed . . . Agreement to support the CNA,
there was no question that Occidental was
providing funding to the CNA to continue its
brutal practices and that additional war crimes
would be committed by the CNA enabled by
Occidental’s funding.
16 SALDANA V. OCCIDENTAL PETROLEUM
173. Occidental intended that, with its
funds, the CNA would expand its war effort
against the FARC and ELN and would focus
its campaign in the areas of Arauca near the
Caño Limón oilfield and Caño Limón-
Coveñas pipeline where the FARC and the
ELN had attacked so many times before.
Given CNA’s well publicized record of past
war crimes committed in the name of
providing security to Occidental, the company
certainly had knowledge that the CNA would
continue to commit war crimes, including
extrajudicial killings of innocent civilians,
like Plaintiffs’ decedents, who lived in and
around the towns Occidental needed the CNA
to attack and pacify.
....
212. The primary war crime that
Occidental aided and abetted was the killings
of innocent civilians (i.e., Plaintiffs’
decedents). In aiding and abetting these war
crimes, Occidental also aided and abetted the
killings themselves, which as alleged above,
were extrajudicial killings because they were
committed by the CNA under color of the
authority of the Government of Colombia.
B
Relying on Baker v. Carr, 369 U.S. 186 (1962), and
Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007), the
district court granted Occidental’s 12(b)(1) motion to dismiss
SALDANA V. OCCIDENTAL PETROLEUM 17
on political question grounds, concluding that Plaintiffs
“advanced no theory of liability against Occidental that would
not apply with equal force to the foreign policy and national
security determinations made by the political branches.”
Because Plaintiffs (1) articulated no additional facts or
theories that would avoid the political question, and (2) did
not request additional time or the opportunity to conduct
discovery on this precise issue, the district court did not give
Plaintiffs leave to amend. Plaintiffs appealed and we stayed
Plaintiffs’ appeal pending the Supreme Court’s decision in
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
IV
We review a district court’s dismissal for lack of
jurisdiction de novo, and we may affirm on any basis fairly
supported by the record. Corrie, 503 F.3d at 979. When
determining whether a political question precludes
jurisdiction, we may look beyond the complaint to facts
properly in the record, id. at 982, and “need not presume the
truthfulness of the plaintiffs’ allegations,” White v. Lee,
227 F.3d 1214, 1242 (9th Cir. 2000). Furthermore, “we ‘need
not . . . accept as true allegations that contradict matters
properly subject to judicial notice or by exhibit.’” Gonzalez
v. Planned Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir.
2014) (quoting Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir. 2001)); see also Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e
are not required to accept as true conclusory allegations
which are contradicted by documents referred to in the
18 SALDANA V. OCCIDENTAL PETROLEUM
complaint.”).1 We also need not accept as true legal
conclusions contained in the complaint. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
V
A
“Questions, in their nature political, or which are, by the
constitution and laws, submitted to the executive, can never
be made in this court.” Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 170 (1803). This principle is “primarily a
function of the separation of powers.” Baker, 369 U.S. at
210. “‘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.’” Corrie, 503 F.3d at 982
(quoting Oetjen v. Cent. Leather Co., 246 U.S. 297, 302
(1918)). But not every case that “touches foreign relations
lies beyond judicial cognizance.” Baker, 369 U.S. at 211.
In this case, our task is to determine whether Plaintiffs’
claims implicate a nonjusticiable political question. To make
this decision, Baker requires us to consider whether each
claim presents:
[1] a textually demonstrable constitutional
commitment of the issue to a coordinate
1
Without objection, the district court took judicial notice of documents
referenced in Plaintiffs’ complaint. We granted Occidental’s motion to
take judicial notice of our government’s formal presentations to Congress
in support of its request to fund these programs.
SALDANA V. OCCIDENTAL PETROLEUM 19
political department; or [2] a lack of judicially
discoverable and manageable standards for
resolving it; or [3] the impossibility of
deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s
undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government; or [5] an unusual
need for unquestioning adherence to a
political decision already made; or [6] the
potentiality of embarrassment from
multifarious pronouncements by various
departments on one question.
Id. at 217. Using these six tests as a guide, “[w]e undertake
a discriminating case-by-case analysis,” Corrie, 503 F.3d at
982 (internal quotation marks omitted), to determine whether
a political question is so “inextricabl[y]” tied to the case as to
divest the court of jurisdiction. Baker, 369 U.S. at 217; see
also Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir.
2005) (“[T]hese tests are more discrete in theory than in
practice, with the analyses often collapsing into one
another.”).
We conclude that the district court’s analysis was correct.
Each of Plaintiffs’ claims rests on Occidental’s partial
funding of, and alleged control over, the 18th Brigade. Yet
Occidental’s “control,” when stripped of implausible
allegations in the complaint, is premised on nothing more
than partial funding. We can therefore see no principled way
to sever Occidental’s funding from that of the United States.
It follows that under the fourth, fifth, and sixth Baker tests,
Plaintiffs’ claims are inextricably bound to an inherently
20 SALDANA V. OCCIDENTAL PETROLEUM
political question – the propriety of the United States’
decision to provide $99 million worth of training and
equipment to the 18th Brigade at the same time and for the
same purpose as Occidental allegedly providing $6.3 million
– and thus are beyond the jurisdiction of our courts.
B
Our decision in Corrie, in which we dismissed all of the
plaintiffs’ claims against Caterpillar, Inc. on political question
grounds, informs our analysis. 503 F.3d at 977. The Corrie
plaintiffs sued Caterpillar after the United States paid for, and
Caterpillar supplied, bulldozers to the Israeli Defense Forces
(“IDF”), which the IDF used to injure and kill the plaintiffs’
family members. Id. We dismissed the plaintiffs’ claims as
nonjusticiable because “each claim unavoidably rest[ed] on
the singular premise that Caterpillar should not have sold its
bulldozers to the IDF.” Id. at 982. Because those “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,” the action “would
necessarily require the judicial branch . . . to question the
political branches’ decision to grant extensive military aid to
Israel.” Id.
The same reasoning applies here: each of Plaintiffs’
claims unavoidably rests on the premise that Occidental’s
indirect funding of the 18th Brigade was either knowing or
negligent-and-reckless support for a group of guerrillas
involved in human rights violations. However, the United
States provided much greater funding to the 18th Brigade at
the same time and for the same purpose as Occidental, and
thus this case necessarily requires the judicial branch to
SALDANA V. OCCIDENTAL PETROLEUM 21
question the political branches’ decision to provide extensive
military aid to Colombia and the CNA. See id. Insofar as
Occidental was providing funding to the 18th Brigade, it did
so “cheek to jowl” with the government of the United States
acting in the interests of its national security.
Plaintiffs contend that they need look no further than
Occidental itself in order to make their case. However, as we
noted in Corrie, “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.” 503 F.3d at 984. It is true that in
Corrie we noted the “decisive factor” was that the United
States paid for the bulldozers and thus was a “direct actor.”
Id. at 982, 983 n.8. However, as the district court explained,
the United States’ purchase of the bulldozers was decisive
because it evidenced the United States’ policy decision to
support the IDF’s use of the bulldozers. Here too, the United
States’ provision of $99 million to the CNA – more than 15
times what Occidental contributed (through Oxycol and
Ecopetrol) – evidences the United States’ support of the 18th
Brigade’s efforts to secure the Pipeline.
C
Plaintiffs cite to a handful of military contractor cases that
purport to argue in favor of finding no political question here.
But those cases at most required the courts to question the on-
the-ground execution of military-related operations, not
underlying foreign-policy choices such as the very decision
to engage in military activity. See Koohi v. United States,
976 F.2d 1328, 1331 (9th Cir. 1992) (finding a claim brought
by family members of those killed when a United States
warship accidentally shot down a civilian airliner justiciable
22 SALDANA V. OCCIDENTAL PETROLEUM
because “governmental operations are a traditional subject of
damages actions”); Lane v. Halliburton, 529 F.3d 548, 562
(5th Cir. 2008) (declining to dismiss the case at the motion to
dismiss stage because the plaintiffs “presented a plausible set
of facts as to the fraud and misrepresentation claims” that
could have been tried without implicating a political
question); Bixby v. KBR, Inc., 748 F. Supp. 2d 1224, 1239 (D.
Or. 2010) (finding the claims against a government contractor
who failed to advise the plaintiffs of hazardous chemicals at
their work site in Iraq justiciable because “the matter
fundamentally at issue [was the] defendants’ performance of
[their] contractual obligations . . . rather than the advisability
of any governmental policy-related decision”). Here, to the
contrary, Plaintiffs’ claims fundamentally question
Occidental’s, and thus the United States’, very decision to
fund the 18th Brigade, rather than Occidental’s supervision
of the Brigade’s on-the-ground operations.
Granted, Plaintiffs’ agency theories of liability and
negligent hiring claim, which require Plaintiffs to prove
Occidental had operational control over the 18th Brigade or
those soldiers who committed the killings, might sever the
political question from this case if plausibly pled. See
generally Lane, 529 F.3d at 562. But Plaintiffs have failed to
plausibly plead those claims, because they have not pleaded
“factual content that allows the court to draw the reasonable
inference that” Occidental had operational control of the 18th
Brigade. Iqbal, 556 U.S. at 678.
The May 2004 Inter-Institutional Cooperation Agreement
gives complete operational control over the 18th Brigade to
the Ministry of Defense. Although the Ministry agreed to
give special attention to the Pipeline, it could divert its
attention elsewhere as needed and could unilaterally
SALDANA V. OCCIDENTAL PETROLEUM 23
terminate the Agreement for any reason. Even the
Coordination Committee, to which OxyCol could appoint just
one of its ten members, was explicitly denied “strategic and
operational control” over the CNA.
Much of the information Plaintiffs have put forth to show
control despite the explicit terms of the Agreement consists
of reports from 1997 and 2001, which are of limited worth.
For example, Plaintiffs point to statements made by OxyCol’s
president regarding the CNA, including that the CNA had the
“obligation” to protect the Pipeline and that Occidental
“rel[ied] exclusively on the government to provide
protection.” They also rely on a footnote in the Government
Accountability Office report on the United States’ aid
program, which explained that Occidental’s pipeline
instrumentation would notify CNA of an attack on the
Pipeline, and the CNA would then respond to that attack. But
most private enterprises must report attacks or crimes before
the government can respond. Plaintiffs also cite the alleged
use of an Occidental-provided helicopter to transport the
union leaders’ bodies after the killings, but reliance and
interdependence do not equal control.
Plaintiffs, while recognizing that they will “likely have to
show that Occidental had a right to control the 18th Brigade,”
have failed to allege sufficient facts to suggest that Occidental
had any control over the day-to-day operations of the 18th
Brigade. Their agency theory of liability and negligent hiring
claim could survive only if we implausibly conclude that
Occidental somehow exercised more control over the 18th
Brigade than the United States did, even though the United
States provided much greater funding, provided actual
training, and oversaw the execution of the aid program,
vetting the 18th Brigade every step of the way. See Warren,
24 SALDANA V. OCCIDENTAL PETROLEUM
328 F.3d at 1139; cf. Iqbal, 556 U.S. at 678. On this record,
the notion that the CNA ceded control of the 18th Brigade to
a Delaware corporation with headquarters in the United States
is utterly fanciful. In other words, even accepting Plaintiffs’
factual allegations, they fail to support a “reasonable
inference” that Occidental through its funding had any control
over the operations of the 18th Brigade, or that Occidental’s
“control,” whatever it was, can be distinguished from the
United States’ “control” over the 18th Brigade.
D
Finally, Plaintiffs incorrectly assert that the State
Department’s failure to submit a statement of interest in this
case “indicates a lack of conflict.” To the contrary, our
circuit precedent clearly states that the State Department’s
silence on this issue is a neutral factor. Alperin, 410 F.3d at
556. Moreover, here, the United States’ funding, training,
and oversight of the 18th Brigade was so obvious as to make
a formal statement unnecessary. The facts of this case simply
cannot be framed in such a way that severs the tie between
the United States’ and Occidental’s funding of the CNA and
the 18th Brigade. Baker and Corrie require that we leave the
issue to the political branches.
VI
We normally will “not consider an issue not passed upon
below,” Dodd v. Hood River Cnty., 59 F.3d 852, 863 (9th
Cir. 1995) (internal quotation mark omitted), including legal
arguments, see USA Petroleum Co. v. Atl. Richfield Co.,
13 F.3d 1276, 1283–84 (9th Cir. 1994). Plaintiffs’ argument
on appeal that the district court should have denied
Occidental’s motion to dismiss so that they could conduct
SALDANA V. OCCIDENTAL PETROLEUM 25
discovery on the political question issue falls into that chasm.
Plaintiffs did not make that argument below and, thus, have
waived it. Neither did they request an opportunity to amend
their complaint, choosing instead to appeal.2
VII
Occidental’s funding of the 18th Brigade, at the same
time and for the same purpose as the United States, is
inextricably bound to foreign policy decisions which our
Constitution consigns to, and have already been made by, the
political branches. “Whether to grant military or other aid to
a foreign nation is a political decision inherently entangled
with the conduct of foreign relations.” Corrie, 503 F.3d at
983. Here, Congress and the President determined that
economic and military aid and training to Colombia and to
the 18th Brigade of the CNA was necessary and appropriate.
We cannot adjudicate Plaintiffs’ claims without inquiring into
or passing judgment on those political decisions. Any verdict
or judgment in favor of Plaintiffs would necessarily conflict
with and denounce our government’s official actions. As we
noted in Corrie, we “could not find in favor of the plaintiffs
without implicitly questioning, and even condemning, United
States foreign policy toward [Columbia].” 503 F.3d at 984.
Accordingly, Plaintiffs’ case directly implicates at least the
fourth, fifth, and sixth Baker factors: appropriate respect for
coordinate branches of government; an unusual need to
2
In their opposition to Occidental’s motion to dismiss, Plaintiffs
alternatively requested (1) leave to amend their complaint to include
additional facts showing that Occidental was the correct defendant, and
(2) an opportunity to conduct discovery on the comity issue. But they did
not request leave to amend or an opportunity to conduct discovery
regarding the political question issue specifically, nor regarding the
motion to dismiss generally.
26 SALDANA V. OCCIDENTAL PETROLEUM
adhere to political decisions made in the context of foreign
affairs; and the potential for embarrassment from multifarious
pronouncements by various departments on the same
question.
If, as Plaintiffs allege in paragraph 88 of their complaint,
“Occidental knew or should have known that for years
preceding the decedents’ murders, there were widespread
human rights violations in Arauca committed by the CNA,
especially by the 18th Brigade,” on this record the same
would have to be said of the State Department. Indeed,
Plaintiffs’ allegations are manifestly irreconcilable with the
State Department’s human rights certifications to Congress.
We remain bound by the Supreme Court’s holding in Oetjen,
246 U.S. at 302, which we reiterated in Corrie, 503 F.3d at
982, that 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.” As the political question
doctrine bars us from considering the merits of Plaintiffs’
claims, the district court’s dismissal of their action is
AFFIRMED.3
3
Because of our resolution of this appeal on the basis of political
question nonjusticiability, we need not address Occidental’s contention
that Plaintiffs’ case also fails under the Supreme Court’s decision in
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
SALDANA V. OCCIDENTAL PETROLEUM 27
TROTT, Circuit Judge, concurring:
I agree with my colleagues’ resolution of this case and our
per curiam opinion. I write separately only to augment the
background material that demonstrates that the Plaintiffs’
complaint raises nonjusticiable political questions, thus
depriving us of jurisdiction to entertain it.
To illustrate the direct foreign policy interests of the
United States that envelop every aspect of Plaintiffs’ case, I
turn to relevant excerpts from the testimony and presentation
on April 10, 2002, of Marc Grossman, our State Department’s
Undersecretary for Public Affairs. He delivered this
testimony to a Subcommittee of the Committee of
Appropriations of the House of Representatives in connection
with an appropriation of funds for fiscal year 2003, requested
by President George W. Bush. In Subcommittee Chairman
Kolbe’s opening statement, he set the stage for the
undersecretary’s testimony:
One could have predicted a heated debate
last year about our policy in Colombia, but no
one could have imagined the developments
that have led us to where we are here today.
After nearly four years of fruitless and one-
sided negotiations, President Pastrana called
off the peace process a few weeks ago. I
sympathize with the frustration that President
Pastrana expressed at that time and the
frustration of the Colombian people for this
failed attempt to negotiate a settlement to a
40-plus year conflict given the FARC’s
mockery of the peace negotiations by their
continued kidnapping and bombing.”
28 SALDANA V. OCCIDENTAL PETROLEUM
Foreign Operations, Export Financing, and Related
Programs Appropriations for 2003: Hearing Before the
Subcomm. on Foreign Operations, Export Financing, and
Related Programs of the Comm. on Appropriations, 107th
Cong. 271–272 (2002).
Undersecretary Grossman then explained, in oral
testimony and a written statement, our purpose and policy in
seeking this appropriation from Congress.
For me, this comes down to one thing,
which is that Colombia matters to the United
States. Congress has been a key partner in our
efforts to help Colombia defeat the demons
that it now confronts in narco-trafficking,
underdevelopment, human rights abuses and
terrorism. . . .
....
As Chairman Kolbe said, on March the
21st, we came here and proposed, through a
supplemental, some changes in law and
regulation. We did that because we have
come to believe, as Chairman Kolbe said, that
the problems of narcotics and terrorism in
Colombia are connected. And exactly as the
Chairman said, we seek these new authorities
because we believe that we can do a better
job.
....
SALDANA V. OCCIDENTAL PETROLEUM 29
Mr. Chairman, I think it is very important
to take an overview here on what we are
trying to accomplish in Colombia, which is a
hemispheric vision of democracy, prosperity
and security. I will not go into it in great
detail, but you all know that in Quebec last
year 34 heads of state and governments of this
hemisphere got together and did two very
important things.
First of all, they passed a democracy
clause which said that all countries in this
region to be part of the conversation in the
Western Hemisphere ought to be democracies.
Second, they discussed an improved
action plan to promote economic prosperity,
protect human rights, fight drug trafficking
and organized crime. Additionally, they also
set 2005 as a deadline for the Free Trade Area
of the Americas.
Democracy, security and prosperity. It
seems to me that the question we have to ask
ourselves is, what good are all these
principles if they get trampled in Colombia.
....
. . . The FARC has killed six Colombian
legislators and kidnapped presidential
candidate Ingrid Betancourt. Groups
assassinated 12 mayors in 2001, and the
30 SALDANA V. OCCIDENTAL PETROLEUM
FARC efforts to disrupt the March 10
legislative elections are also well documented.
I also believe that there is an assault on
Colombia’s prosperity as well. The ELN and
FARC bombings of the key Caño Limón oil
pipeline cost the government of Colombia
almost $500 million in lost revenue last year.
....
. . . I just wanted to say that, we think we have
got a hemisphere consensus on security,
prosperity and democracy and that these
principles really are under attack in Colombia.
They are under attack in terms of Colombia’s
democracy, on security and I would say also
– on the Caño Limón pipeline – that there is
an assault by the FARC, the ELN and the
[United Self-Defense Forces of Colombia
(“AUC”)] on Colombia’s prosperity.
As I was saying, Mr. Chairman, the ELN
and FARC bombings of this oil pipeline cost
the government of Colombia about $500
million a year, which is equal to about one-
third of Bogota’s spending on health for its
citizens. FARC strikes against the country’s
power grid in February left 45 towns,
including two departmental capitals, without
electricity for days. The FARC also
attempted twice to blow up dams near Bogota,
and had these efforts not been stopped, we
SALDANA V. OCCIDENTAL PETROLEUM 31
believe they would have killed thousands and
thousands of Colombians.
Finally, we have the question of this
assault on Colombia’s security. The terrorist
attacks in Colombia have resulted in over
3,000 Colombians killed in the year 2001.
Another 2,856 were kidnapped with ELN,
FARC, and AUC responsible for almost 2,000
victims. Again, I show you a chart, over the
years, on kidnapping in Colombia.
....
Since July of 2000, the United States has
provided Colombia with $1.7 billion to
combat narcotics trafficking, terrorism,
strengthen democratic institutions and human
rights, foster socioeconomic development and
mitigate the impact of violence on Colombian
civilians.
....
[T]he government of Colombia has extradited
23 Colombian nationals to the United States
in 2001; an unprecedented level of
cooperation, and I draw your attention to that
chart on extraditions. And I believe that the
reason we have had this increase in
extraditions is the increased engagement we
have had with Colombia.
....
32 SALDANA V. OCCIDENTAL PETROLEUM
We are also helping municipalities
increase their ability to manage their policies
and their funds. We are working closely with
the prosecutor general’s office to set up
human rights units throughout the country to
facilitate the investigation and prosecution of
human rights abuses. Furthermore, the
prosecutor general, as many of you know, was
here a couple of weeks ago, and we had a
chance to talk to him about the progress we
are making in that area as well.
....
As I was reporting to Mrs. Lowey, last
week the chief of the Army staff, General
Shinseki, and General Speer, went to the
highest levels of the military and said that,
“Human rights must, must, must be among the
most important of your calculations as you
move forward.” And I believe, Mr.
Chairman, it is right to say that our human
rights message is making a real difference.
The Colombian military captured 590
paramilitary members last year and killed 92
members in combat. Eight military personnel,
including two colonels and a lieutenant
colonel, were charged in civilian courts with
collaborating with paramilitaries or
committing gross human rights violations in
2001, and that list goes on.
SALDANA V. OCCIDENTAL PETROLEUM 33
Still, too many Colombians continue to
suffer abuses by state security forces or by
terrorist groups acting in collusion with state
security units, and those responsible must be
punished.
....
Expanding the authorities for the use of
aircraft and other assets to cover terrorist and
other threats to Colombian democracy will, of
course, not ensure that this battle will be won,
because they are working against multiple
threats. However, we believe that if you
approve ths proposition, they will give us the
flexibility we need to help the government of
Colombia more efficiently and more
effectively attack the problems that they face.
....
The FARC and ELN also represent a
danger to the $4.3 billion in direct U.S.
investments in Colombia. They regularly
attack U.S. interests, including the railway
used by the Drummond Coal Mining facility
and Occidental Petroleum’s stake in the Caño
Limón Pipeline. Terrorist attacks on the Caño
Limón pipeline also pose a threat to U.S.
energy security. Colombia supplied 3% of
U.S. oil imports in 2001, and possesses
substantial potential oil and natural gas
reserves.
34 SALDANA V. OCCIDENTAL PETROLEUM
....
Our request for new authorities does not
signify a retreat from our concern about
human rights nor signal an ill-guided U.S.
commitment in Colombia. Our proposal
expressly states that we will continue to do
human rights vetting of all Colombian
military units receiving U.S. training or
equipment and will maintain the 800 person
cap on U.S. military personnel and
contractors providing training and other
services in Colombia.
....
In the longer-term, we are asking for $439
million in [International Narcotics Control
and Law Enforcement (“INCLE”)] funds in
our FY-03 budget request to sustain our Plan
Colombia programs, as well as $98 million in
[Foreign Military Financing (“FMF”)] funds
to train and equip Colombian military units
protecting the Caño Limón oil pipeline. The
$439 million request includes $275 million
for the Colombian military and police, and
$164 million for democracy programs,
alternative development, assistance to
vulnerable groups, and promotion of the rule
of law. These funds, together with the
terrorism supplemental, will be crucial as the
next Colombian government works to
improve security, build effective democratic
institutions, and foster economic growth.
SALDANA V. OCCIDENTAL PETROLEUM 35
107th Cong. 273–278 (Grossman Testimony), 284–290
(Grossman Statement) (emphasis supplied).
Peter Rodman, assistant secretary of defense for
international security affairs, then provided the Subcommittee
with the Defense Department’s perspective on the United
States’ involvement in Colombia:
Continuing to link U.S. Aid to Colombia
to a narrow counternarcotics focus means that,
by law, we must refrain from providing
Colombia certain kinds of military assistance
and intelligence support that could
immediately strengthen the government’s
position throughout the country. Hundreds of
attacks by the ELN and FARC have been
directed at electrical, natural gas and oil
infrastructure. As Ambassador Grossman has
noted, the guerrillas’ sabotage of oil pipelines
alone has cost the Government of Colombia
lost revenue on the order of $500 million per
year. The pipeline was bombed 170 times in
2001, spilling 2.9 million barrels of oil –
eleven times the amount of the Exxon Valdez.
The Administration has proposed to
Congress $6 million in FY02 supplemental
funding and $98 million in FY03 Foreign
Military Finance funding to train and equip
vetted Colombian units to protect that
country’s most threatened piece of critical
economic infrastructure – the first 170
kilometers of the Cano-Limon oil pipeline.
This segment is the most often attacked. U.S.
36 SALDANA V. OCCIDENTAL PETROLEUM
assistance and training will support two
Colombian Army Brigades, National Police
and Marines operating in the area. These
units through ground and air mobility will be
in a better position to prevent and disrupt
attacks on the pipeline and defend key
facilities and vulnerable points such as
pumping stations. These units will also send
a message that the Colombian State is
committed to defending its economic
infrastructure – resources that provide sorely
needed employment and revenue – from
terrorist attacks.
Basic security throughout Colombia’s
national territory is the essential but missing
ingredient. The Pastrana administration’s
Plan Colombia was an admirable start toward
resolving Colombia’s interrelated problems,
of which the security component is only one
part. But there can be no rule of law,
economic development and new job creation,
strengthening of human rights or any other
noble goals, where there is no basic security.
Therefore, our policy in Colombia should
augment traditional counterdrug programs
with programs to help Colombia enhance
basic security. A friendly democratic
government in our hemisphere is struggling to
preserve its sovereign authority under assault
from extremists of both left and right. U.S.
policy towards Colombia requires a
bipartisan consensus at home for a long-term
SALDANA V. OCCIDENTAL PETROLEUM 37
strategy aimed at strengthening Colombia’s
ability to enforce effective sovereignty and
preserve democracy. The new and more
explicitly legal authorities that the
Administration is proposing are intended to
serve these goals.
107th Cong. 303–04 (emphasis supplied).
Major General Gary Speer, acting commander in chief of
the United States Southern Command, provided the
Subcommittee with a written statement on the appropriations,
which included the following:
In addition to counterdrug assistance, the
Administration has proposed to Congress $98
million, for FY 2003, to help Colombia to
enhance the training and equipping of units to
protect the Caño Limón-Covenas oil pipeline,
one of the most vulnerable elements of their
economic infrastructure. The FARC and ELN
are active in carrying out attacks against
Colombia’s energy infrastructure. Attacks on
the Caño Limón-Covenas pipeline cost the
Government of Colombia more that $40
million per month in revenues when the
pipeline is not operational. During the past
year, the pipeline was offline for more than
266 days. In addition, the amount of oil
spilled during these attacks is eleven times
greater than the Exxon Valdez spill, creating
significant environmental damages.
38 SALDANA V. OCCIDENTAL PETROLEUM
The Administration has included $6
million in the FY 2002 Supplemental to begin
training. The first unit to be trained for this
program with be the recently human rights
vetted, Arauca-based Colombian Army 18th
Brigade. Subsequent units to be trained for
infrastructure security include the 5th Mobile
Brigade, designated Colombian National
Police units, and Colombian Marines. The
Colombian units will also be equipped with
weapons and ammunition, vehicles, night
vision devices, and communications
equipment, as well as a helicopter tactical lift
capability for a company-sized quick reaction
force.
If approved, this training will assist the
Colombians to exert effective sovereignty in
the Arauca Department, where those attacks
primarily occur. Through a comprehensive
strategy of reconnaissance and surveillance,
offensive and quick reaction operations, the
Colombian military will be better able to
mitigate the debilitating economic and
financial effects of constant attacks on critical
infrastructure.
107th Cong. 345 (emphasis supplied).
After this hearing, the Subcommittee submitted a written
question to Undersecretary Grossman: “Why would the
Administration choose to fund the training of the Colombian
military to protect an oil pipeline that is owned in part by
SALDANA V. OCCIDENTAL PETROLEUM 39
Occidental Petroleum?” 107th Cong 390. This was
Undersecretary Grossman’s response:
The most significant factor in developing
the Caño Limón pipeline initiative was the
revenues and royalties it generates for
Colombia, not its part-ownership by
Occidental Petroleum. It is in the U.S.
national interest to help Colombia’s
democratic government generate resources to
meet pressing social, developmental, and
security needs. In 2001, the pipeline was
attacked 170 times, causing it to be shut down
for over 200 days and costing Colombia
nearly $500 million in foregone revenues and
royalties.
The proposed training and equipment of
Colombian army, police and marine units will
also serve as a model for Colombia as it
develops additional programs to protect key
infrastructure. Moreover, while Colombia
does export some oil to the United States, its
potential has not been fully developed, in
large part because the security situation
discourages investment. Finally, reducing
attacks against the pipeline will lessen the
serious environmental damage they cause.
107th Cong. 390–91 (emphasis supplied).
In the United States Senate, before the Committee on
Foreign Relations on February 6, 2003, the State
Department’s witness on our foreign affairs budget for 2004
40 SALDANA V. OCCIDENTAL PETROLEUM
was Secretary of State Colin L. Powell. Pertaining to the
issues in this case, he stated as follows:
Mr. Chairman, the 2004 budget proposes
several initiatives to advance U.S. national
security interests and preserve American
leadership. The 2004 foreign operations
budget that funds programs for the
Department of State, USAID, and other
agencies is $18.8 billion. Today, our No. 1
priority is to fight and win the global war on
terrorism. The budget furthers this goal by
providing economic, military, and democracy
assistance to key foreign partners and allies,
including $4.7 billion to countries that have
joined us in the war on terrorism.
....
This budget also includes almost half a
billion dollars for Colombia. The funding will
support Colombian President Uribe’s unified
campaign against terrorists and the drug trade
that fuels their activities. The aim is to secure
democracy, extend security, and restore
economic prosperity to Colombia, and prevent
the narcoterrorists from spreading instability
through the broader Andean region.
....
The President’s request for $731 million
for the Andean Counterdrug Initiative
includes $463 million for Colombia. An
SALDANA V. OCCIDENTAL PETROLEUM 41
additional $110 million in military assistance
to Colombia will support Colombian
President Uribe’s unified campaign against
terrorists and the drug trade that fuels their
activities. The aim is to secure democracy,
extend security, and restore economic
prosperity to Colombia, and prevent the
narcoterrorists from spreading instability
through the broader Andean region. Critical
components of this effort include resumption
of the Airbridge Denial program to stop
internal and cross-border aerial trafficking in
illicit drugs, stepped up eradication and
alternative development efforts, and technical
assistance to strengthen Colombia’s police
and judicial institutions.
Foreign Affairs Budget: Hearing Before the Comm. on
Foreign Relations, U.S. Senate, 108th Cong. 12–13 (Powell
Testimony), 19 (Powell Statement) (2003) (emphasis
supplied).
To implement our policy of assisting Colombia, Congress
appropriated $71 million in 2002 and 2003 to buy helicopters
and related support for the 18th Brigade, and $28 million
dollars to provide the 18th Brigade with equipment and
training by U.S. Special Forces. The training by the U.S.
Special Forces began in January 2003, though the helicopters
were delayed until 2005. In a report requested by both the
House of Representatives and the Senate, the United States
Government Accountability Office (“GAO”) reported that:
U.S. Special Forces provided training and
equipment for about 1,600 Colombian Army
42 SALDANA V. OCCIDENTAL PETROLEUM
soldiers to improve their ability to act quickly
in minimizing terrorist attacks along the Caño
Limón pipeline. In November 2002, a team of
U.S. Special Forces traveled to Arauca to
assess the area and determine the training
needs of the Colombian Army. In January
2003, U.S. Special Forces started training in
Arauca and planned for training to continue
through December 2004. U.S. Special Forces
focused on helping the Colombian Army take
a more proactive and aggressive approach to
defend the pipeline; regain control of the area
around the pipeline; and prevent, interdict,
and disrupt the insurgents before they attack
the pipeline. Training included developing
quick reaction capabilities, small unit tactics,
planning and conducting operations,
reconnaissance, collecting and analyzing
timely intelligence, and medical support.
Of considerable significance in this case is the series of
official certifications to Congress by the State Department
that it had determined “that the Colombian Government and
Armed Forces are meeting statutory criteria related to human
rights and severing ties to paramilitary groups.” These
certifications were required by law in order to obligate funds
appropriated by Congress to the Colombian Armed Forces.
Consolidated Appropriations Act of 2004, Pub. L. No.
108–199, § 563(a)(1), (3), 118 Stat. 3 (2004).
Secretary of State Powell issued the first of these positive
certifications to Congress on September 24, 2004. Secretary
of State Condoleezza Rice issued similar positive
certifications to Congress in 2005, 2006, and 2007; and the
SALDANA V. OCCIDENTAL PETROLEUM 43
State Department followed suit from 2008 through 2011,
when this case began. These State Department human rights
certifications stand in stark contrast to Plaintiffs’ complaint
and theory of liability.
As illustrated by this background material, the Supreme
Court’s authoritative statement in Oetjen v. Cent. Leather
Co., 246 U.S. 297, 302 (1918), controls the resolution of this
case:
The conduct of foreign relations of our
government is committed by the Constitution
to the legislative 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.
As my colleagues demonstrate, the Plaintiffs’ complaint
falls squarely within this prohibition.