Rachel Corrie's Case for Justice By TOM WRIGHT and THERESE SALIBA

Five Years Later


The darkness is infinite
As I leave the curtain's edge
It is filled with watchers
Silent judges

--Rachel Corrie, about 11 years old

As their plane touches down in Tel Aviv this week, Cindy and Craig Corrie will mark five years since their daughter's death. On March 16, 2003, Rachel Corrie, 23, was crushed to death beneath an armored Israeli bulldozer. The Corries are a short distance from Gaza, where Rachel was killed, and where in the past few weeks, an Israeli military incursion killed over 100 Palestinians, including many women and children.

This week, the Corries come to Israel to attend the first Arabic-language performance of the acclaimed one-woman play, My Name is Rachel Corrie.

Compelling though her story was -- an American peace activist killed trying to block the demolition of her Palestinian host family's home, killed by the military of her own government's major regional ally -- Rachel's story might well have faded quickly, subsumed in the weekly news cycle just three days before the "Shock and Awe" of the attack on Iraq. But her family's instinct, even in the first hours of grief and bewilderment, felt imperative: "We must get her words out." Rachel's emails home during her month in the Gazan border town of Rafah, volunteering with the International Solidarity Movement, had stirred and shaken her family and friends. Having traveled from her comfortable life in her hometown of Olympia, Washington, she had sat smoking late into the night, passionately reporting the other-worldly scenes of violence and destruction from the military occupation around her.

From Rachel's habit since childhood of journal-keeping and poetry-writing, her parents knew her to be a writing talent of great originality and promise, and they sensed that her dispatches from Gaza could have a broader reach. Editors at theGuardian in London felt similarly, and told the Corries that Rachel's words "connected readers to the occupation more than anything they had read in a long while." The Corries granted the London newspaper permission to publish the e-mails nearly in total, yet to their knowledge, no U.S newspaper picked them up. [The first way many met Rachel was through CounterPunch which published many of her dispatches, before and after her death. AC / JSC ]

From there, Rachel's writing came to the attention of the British actor Alan Rickman (best known here as "Snape" of the Harry Potter films), whose collaboration with Katherine Viner of theGuardian would lead to the play My Name Is Rachel Corrie, produced by the Royal Court Theatre in London. That project, which germinated and was nurtured in London, would later reach audiences in the United States and around the world.

In the days following Rachel's death, the Corries' whole world was upended. With little connection to Mideast issues, they found themselves "catapulted into the midst of an international conflict and controversy." They moved back to Olympia, Washington, and immersed themselves in work, from local grassroots campaigns to national and international work on behalf of peace between Israel and Palestine. It was the beginning of an education.

The Search for Accountability

The family wanted the help of their own government in the painful task of securing the return of Rachel's body, as well as in determining responsibility and seeking redress. According to the U.S. Dept. of State, on the day after Rachel's death, Israeli Prime Minister Ariel Sharon promised President Bush a "thorough, credible, and transparent" investigation. State Department spokesman Richard Boucher assured: "When we have the death of an American citizen, we want to see it fully investigated. That is one of our key responsibilities overseasto find out what happened in situations like these." U.S. Representative Brian Baird, whose district includes Rachel's native Olympia, introduced House Concurrent Resolution 111 calling on the U.S. government to conduct a full investigation of her death.

When Israeli officials said that an autopsy had to be performed before Rachel's body could be returned, the Corrie family insisted that an official from the U.S. Embassy be present. They also requested that it not be performed by anyone associated with the Israeli military, since after all, these were the people who killed her. Even an Israeli court ordered that a U.S. official be a witness, and with this understanding the Corries acquiesced. Not until 2007 would the family learn that their requests, and the court order, weren't honored. Although the State Dept. knew for four years that no American had been attendant, the Corries discovered this only through a Freedom of Information Act request. Furthermore, the autopsy had been performed by someone the IDF used regularly.

The results of Israel's investigation were announced in May of 2003. Eyewitnesses had reported that Rachel was clearly visible, at eye level, to the two drivers of the Caterpillar D9 bulldozer, surely plausible given her Day-Glo flak jacket, and the highly charged context of the skirmishes with the ISM activists throughout the day. (One soldier entered into the log that day, referring to the International activists: "Those foreigners should be handled and their entrance into the Gaza Strip forbidden. Additionallythe firing orders must state (illegible) that every adult person should be shot to kill"). But the military report simply found that they did not see her.

The case was closed and no charges were brought. The report would not even be released to the U.S. government, whose billions in annual largesse ranked Israel as by far the largest recipient of American aid. Pressed by the Corries, Secretary of State Colin Powell's Chief of Staff Lawrence Wilkerson acknowledged that regarding the Israeli Defense Forces report, "Your ultimate question, however, is a valid one, i.e., whether or not we view that report to have reflected an investigation that was 'thorough, credible, and transparent.' I can answer your question without equivocation. No, we do not consider it so." But the U.S. government declined to conduct its own investigation, and claimed it could not force a "thorough, credible and transparent" inquiry from the Israelis. Congressman Baird's resolution calling for an investigation had gathered 77 cosponsors, yet died in committee that year without a hearing.

The Corries persisted. It took nearly two years before they had a contact in the Justice Department, and were able to meet with the U.S. Attorney in Seattle, John McKay. He explained that one of the elements to enable a prosecution was a certification by the U.S. Attorney General that the killing was intended "to coerce, intimidate or retaliate against a civilian population or government." This anti-terrorism statute was used against Indonesia, when the FBI went to investigate the killing of an American, Rick Spier. Cindy explained how McKay told them, "'I'll give you as much time as you need, but I'm here to tell you that no Attorney General-past, present or future-will ever certify against Israel.' Maybe that's what shocked me the most," she said. "I couldn't believe that Mr. McKay was being so forthright. I was dumbfounded."

On March 17, 2005, the family met with Barry Sabin, head of the Counterterrorism Section of the Criminal Division at the Justice Department. Sabin told them that the applicable criminal statutes could be applied to the military of a foreign country and that Rachel's killing could meet the criteria of "trying to coerce, intimidate, or retaliate," if there was proper evidence for it.

The Corries said that such evidence was abundant, citing the killing of Rachel and two other international human rights observers within a seven week period by the IDF in Rafah, all of whom were documenting civilian home demolitions on the border between Gaza and Egypt. They pointed to the intimidation of internationals and Palestinian municipal water workers trying to repair water wells destroyed by the IDF in Rafah; finally, the mass demolition of civilian homes in Rafah was itself evidence of precisely such intimidation and coercion.

But, echoing U.S. Attorney McKay, Sabin told them there would be no investigation without the ability to prosecute, which would required certification by the U.S. Attorney General.

The family would meet once more with Justice Dept. officials Sabin and Michael Mullaney, more than a year later, when they were duly informed that the only applicable statute was Title 18, 2332, which required that Rachel's killing come under the rubric of a "serious, violent attack on a U.S. citizen or U.S. interests." But Justice wasn't going to pursue an investigation under Title 18, because, as Mullaney explained, they had to go back to the original intent of Congress in that statute, which meant it only to apply to "terrorist" attacks on Americans.

Cindy says, " I really asked the question twice: 'Are you saying that no matter what amount of evidence we bring to you there will never be a U.S. investigation into Rachel's killing?' And Barry Sabin said, 'I never say never, but no.' And our daughter Sarah said, 'Even if we could show intent?' And he nodded."

Sabin counseled that the criminal justice system was not the means to solve all problems. He suggested to the family that perhaps the play, My Name is Rachel Corrie, was the best way to address the issue.


Caterpillar-the Question of Liability

Weighing more than 60 tons with its armored plating, the Caterpillar D9 bulldozer that killed Rachel Corrie is built to destroy a reinforced concrete house in a matter of minutes. More than 70,000 Palestinians have seen their homes destroyed by the IDF since the occupation began, and some 1,600 of these homes were demolished in Rafah alone, between 2000 and 2004. The wholesale destruction of neighborhoods on pretexts that were at best flimsy has long attracted the condemnation of the major human rights organizations, and executives at the Caterpillar Corporation can hardly claim innocence of the controversy. Rights groups have spent the last twenty years filling Caterpillar's In-box with appeals about grave breaches of the Fourth Geneva Convention, to no effect.

In April 2002, the home of Mahmoud Omar Al Sho'bi was bulldozed to rubble in the middle of the night, without warning, in the West Bank town of Nablus. Perishing inside were his father Umar, his sisters Fatima and Abir, his brother Samir and pregnant sister-in-law Nabila, and their three children, Anas, Azzam and Abdallah, ages 4, 7, and 9.

In 2005, the Corries joined Mahmoud and four other Palestinian familes as plaintiffs in a major lawsuit against Caterpillar.

The suit charged not only wrongful death, public nuisance and negligence, but that Caterpillar violated international and federal law by selling the bulldozers to the IDF despite its knowledge of their intended, unlawful use. In doing so, claimed the lawsuit, Caterpillar aided and abetted war crimes such as collective punishment and destruction of civilian property.

Judge Franklin D. Burgess in the U.S. District Court for the Western District of Washington dismissed the case without permitting discovery or hearing oral argument. His reasoning included the disturbing interpretation that a company cannot be held liable for selling its products-merely knowing they will assist war crimes-- unless it actually intended that the war crimes be committed. It is hard to imagine the corporate tort case that could surmount this kind of impediment.

Corrie et.al. v. Caterpillar then proceeded to the appellate level, before the Ninth Circuit. Just before the Court was set to issue its ruling, the Government weighed in on the matter with a late amicus brief -- standing with Caterpillar, and against the Corrie plantiffs. In the brief, the U.S. first stooped to argue that there should be no liability for aiding and abetting human rights violations under the statutes germane to this suit, namely the Alien Torts Statute of 1789, and the Torture Victims Protection Act of 1992. (These Acts are part of the foundation of individuals' access to U.S. courts in cases of human rights violations.)

Then, in the same brief, the government declared (without submitting evidence) that it had reimbursed Israel for the cost of the bulldozers. Therefore, went its argument, to hold the company liable would be to implicate U.S. foreign policy itself in criminal violations. Foreign policy being the prerogative largely of the Executive branch, the Court lacked jurisdiction. To hear the case would be a breach of the separation of powers.

Incredibly, the Ninth Circuit embraced this "foreign policy" argument, and in September, 2007 affirmed the dismissal of the suit.

"Foreign policy" challenges of this kind, based on the so-called "political question" doctrine, do come before the courts, but are usually rejected, explains Maria LaHood, Senior Attorney with the Center for Constitutional Rights, and who led the legal team. It's just not the kind of dispute that has been found to involve a genuine "separation of powers" conflict, she argues. "Here we have private partiessuing Caterpillar for war crimes and other violations, and way off to the side we have the possibility that the U.S. is paying for the bulldozers. It's so far attenuated that it is a stretch to call this a political question. We allege violations of international law. That's what the court's role is-to adjudicate. Take this to its logical extension: you sue corporations, foreign officials, foreign governments, and anytime it may be a party that receives aid from the US government, it somehow interferes with U.S. foreign policy? That just can't be."

The plaintiffs are now awaiting a reply on their petition for a re-hearing of the appeal.


The Reach of Rachel's story

In Rachel's case, all three branches of the US government have now taken a stand -- against her, and in favor of Israeli and corporate impunity. The Corries aren't deterred. "The kind of impotence in government around this whole issue, after five years with Rachel's case," says Cindy, "points to the need for people at the grassroots level to find other channels, other ways of keeping the communications open, of building those relationships that ultimately are going to lead to some change in the world."

Rachel's parents, along with many community activists, have established the Rachel Corrie Foundation for Peace & Justice (rachelcorriefoundation.org) and the Olympia-Rafah Sister City Project (orscp.org), local initiatives fostering exchanges and projects with Palestinians. With Gaza under siege, and Hamas declared a "terrorist organization", ORSCP faces financial obstacles, and delegates from both the US and Rafah face difficulties getting in and out of Gaza. Cindy states that the extreme difficulties "make it all the more important to keep trying to do the work. It's because it's that bad that it's so crucial for us to not just back away and say it's too hard."

Yet even on the local level, the government is a hurdle to be overcome. The Olympia City Council rejected official sister-city status in April 2007 after a concerted campaign by local activists. Despite broad community support, as well as the backing of Sister Cities International, the City Council thwarted the initiative, deferring to some in the community who viewed the Palestinians as "terrorists" and the project as "divisive." As one organizer wrote from Portland, "If Rachel Corrie's city cannot gain official recognition, then who can?" Still, the Olympia-Rafah Sister City Project, initiated by Rachel, won't go away. In the past month, two local delegates got in to Rafah to witness conditions under siege and the temporary breeching of the border wall, and to offer some slight economic relief through fair trade exchange of Palestinian embroidery, even as people imprisoned in Rafah are running out of basic supplies, such as thread, baby formula and medicines, not to mention food, water, and electricity.

If all official avenues have been closed to Rachel's case and vision of justice, the power of her words has proven indomitable despite efforts to silence them. And if, as Justice Dept. official Barry Sabin claimed, the stage play was indeed the best means of addressing Rachel's killing, then the play indicts the Israeli military in the deliberate killing of Rachel, as well as in the systematic onslaught on the Palestinians' ability to survive. My Name is Rachel Corrie, which opens this week in Haifa, in Arabic, is reaching audiences worldwide. From the cities of Lima, Montreal, Athens, New York, Des Moines, Seattle, and scores more, and with showings performed or scheduled throughout Europe, and in South Africa, Australia, even Iceland, Rachel's story continues to have what Cindy describes as an "unexpected impact." In several US cities, theaters have backed out due to political pressure. "If people aren't familiar with the political landscape," states Craig, "they can be blindsided and easily scared by the pressure." Yet artists and activists offended by the censorship and silencing, usually find creative ways to stage the play, bringing even more attention to Rachel's story.

Moreover, this month has seen the release of Let Me Stand Alone: The Journals of Rachel Corrie, a major publication by Norton. Here, as in the play, Rachel becomes more than a political symbol. As Cindy explains, "Sometimes she is demonized; sometimes she is lionized, but it makes it more possible for her to have more impact if people see her as human." The sustained beauty of Rachel's writings and sketches, and her incisive observations into personal and global relationships, from 10 years old into young adulthood, expose a young woman who is deeply caring, creative, quirky, wise beyond her years, anything but naïve.

"People accuse Rachel of being naïve, which of course she wasn't," says Craig. "Though she may have been naïve about US pressure on Israel." Up to the day of her death, Rachel worked tirelessly, building relationships with Palestinians and Israeli activists, engaging in direct action, and strategizing on the grassroots level to stop the "massive destruction of civilian homes" in Rafah. In a press release from March 2003, she writes, "We can only imagine what it is like for Palestinians living here, most of them already once-or-twice refugees, for whom this is not a nightmare, but a continuous reality from which international privilege cannot protect them, and from which they have no economic means to escape."

Today, the Corries share Rachel's sense of urgency, even as they point to the hypocrisy of the US government, the world's superpower, claiming impotence and abdicating responsibility in Rachel's case, and in the case for Palestinian justice. As Craig says, "We have the luxury to sit around and discuss all of this, yet we feel the growing impatience. We want to drive home Rachel's message that we have a responsibility to act."

Tom Wright directed the documentary, Checkpoint: The Palestinians After Oslo, and was a founding member of the Olympia-Rafah Sister City Project.

Therese Saliba is faculty of International Feminism and Middle East Studies at The Evergreen State College, Olympia, and is a board member of The Rachel Corrie Foundation for Peace & Justice. Mail can be sent to tomwright59@comcast.net.