Map of Taiwan
A standing room only crowd filled the courtroom in the District of Columbia U.S. Court of Appeals where a three-judge panel heard arguments on interpretation of the 1952 San Francisco Peace Treaty that officially ended World War II with Japan.
The case, Roger C. S. Lin, et al v. United States seeks a declaration of rights under the peace treaty, which transferred the island of Formosa to United States military control. There is presently a three-way tug of war over the future of Taiwan, as the island is presently known.
Communist China wants "reunification" despite never controlling the prosperous island. Then there is the Republic of China, which the U.S. allowed to be a caretaker government-in-exile when the Communist revolution of 1949 swept mainland China, which wants to be independent. Finally, the plaintiffs in the lawsuit and others are seeking recognition of U.S. territorial control under the 1952 treaty.
Attorney Charles Camp argued for the plaintiffs and was questioned by the three judges. Camp reports that the substantive issues of the case were well understood by the court.
"When the Government lawyer was asked whether any document had ever changed that provision of the treaty [regarding U.S. military occupation], the Government said no. When asked by one of the judges whether the Executive branch could unilaterally change the provision in the treaty making the U.S. the principal occupier of Taiwan, the Government lawyer hesitated and the judge then answered the question himself. He said the Executive branch cannot unilaterally change the language of a treaty."
At one point in the hearing, the Justice Department asserted the 1952 treaty was "irrelevant" leaving the judges stunned at the lack of a substantive response. One of the judges wondered if the U.S. was trying to "walk away" from its treaty obligations.
The main thrust of the government case was that it was a political decision and not a legal one. However, the Justice Dept. attorneys did not cite a single case that would deprive the Court of Appeals from interpreting rights under treaties.
A win by plaintiffs would put them in a similar situation with the residents of American Samoa where the island inhabitants are considered U.S. nationals but not citizens. Plaintiffs are seeking use of U.S. passports and other legal protections that would come with territorial status.
A judicial declaration of rights under the treaty would end the arms build-up and ease tensions between Taiwan and China. Last week the United States allowed Raytheon Corporation to sell $154 million worth of Patriot missiles to Taiwan. President Obama's new National Intelligence director Dennis Blair is expected to urge more missile sales if the unresolved status quo is maintained.
No date for a decision by the Court of Appeals has been announced.
Comments
Michael, thank you so much for writing to let people know about Taiwan. Like you, I have a problem (in fact, a strongest distaste) with the term "reunification". A peoper term would be "annexation" or "cession". Finally, what the current "Republic of China" president Ma Yean-Jeou wants is to sell out Taiwan to China, not to be independent.
Thanks so much for writing about this topic!
I would like to add that the former US Trust Territory of the Pacific under Art 2 and 3 of SFPT got "civil rights protections" of American Samoa and other US territories in 1983 (Juda v. US & People of Saipan v. Interior Dept). At the time, the US did not "own" Saipan until 1986 and the Marshall Islands would later become independent in 1986. During an interim status under SFPT, these Pacific Islanders got the same civil rights being sought out by Taiwan today. How do you protect the island of Taiwan with the Taiwan Relations Act and then deny any civil rights protections under domestic law?
Dear Michael:
We 4 members of the working team flew to Washington DC and back to SF Bay area round trip in 24 hours. We were in the courtroom at 9:30am and also in the NPC Press Conference at 1:00pm.
I am back to home and read your reports regarding our activity in the court of appeals, and I strongly feel you are fighting for the justice it should be. Many of Formosan will appreciate your great works and we feel we met a backer in the darkness. I repeated too many times that Taiwan is the only political orphan who has no country in the world. It is not fair and 64 years is long enough!
Thank you for your muteness supports we feel from our deep heart.
Cheng-Kuang Chen, Global Forum
Feb. 5th, 2009
Thank you for your good comments. I will indeed continue to follow this important lawsuit. Check back regularly for updates.
Dear Michael,
Thanks for your first hand repoort of Taiwan Treaty Lawsuit. Mr. CK Chen and I were busy with the flodded crowd yesterday inside courtroom and without notice you were at scene and losing the chance to meet you in person. I will like to take this opportunity to thank you for your voice of justice for Taiwan.
Just like what Prof. Robert A. Scalapino said in the foreword of Fomosa Betrayed "Formosa is a living symbol of the great American dilemma."
The Exective department of US one hand keep saying that Taiwan is not a State, not an independent state and it does not enjoy the sovereignty as a nation, but the other hand take the SFPT as irrelevant.
I think it is time for American to reassure the true value and greatness of USA is to protect the life, liberty, property and security for all human beings. As what President Obama said in his inauguration speech, "The time has come to reaffirm our enduring spirit; to choose our better history; to carry foward that precious gift, that noble idea, passed on from generation to geneation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness."
I do appreciate and hope your continueous effort to voice for Taiwanese Nationality and Sovereignty.
What is it and Who owns it today?
Respectfully,
John Hsieh
"Then there is the Republic of China, ...which wants to be independent."
Hello Michael,
Thanks for writing about this subject. I have to point out that your characterization of what the Republic of China wants is one-dimensional. To brashly say that the ROC wants independence is as one-sided as saying that America wants to ban abortion, or that America fully supported the War in Iraq. In effect, you are presenting only one viewpoint of the most politically charged question of a nation. There are many people on Taiwan who are not opposed to eventual unification with China, just as there are people who fervently desire de jure independence. In the future, I encourage you to fully investigate, as a journalist, the relevant viewpoints in your articles. Thanks again.
Most of the so called "Taiwanese" today are Fujianese immigrants from mainland China (a mere two or three hundred years ago)! Your ancestors displaced the indigenous Taiwanese and now you are pretending as if you had been there since the stone age. You don't own Taiwan; if your ancestors can immigrate from Fujian, why can't present day Fujianese move to Taiwan as well?
You are not American citizens or an American protectorate. We don't want you, stop clinging onto America. Have some spine please. Be proud of who you are! This lawsuit is truly shameless.
Seeking justices in Taiwan,
is goal of all Taiwanese for more than 60 years!
your reports and articles would brought
all the attetions and concern for all Taiwanese.
Things is extremely unfairness and in-justices for Formosians (Taiwanese)for last 60 years!
It is time to bring this stone out of inside deep water ! and allow the facts come to public in the world!
With the true story being reported by
you,one day you may win Pulizer News Award!
Bless you
Bless Taiwan
Taiwanese-American
Jerry Tsai
2/05/09
Karen, aren't most Americans immigrants as well? What's your point? That Americans don't own America?
Anon. Precisely, I don't owe America. I am merely a citizen of this country. My duty is to contribute to my country to the best of my abilities. I have no right to prevent others from becoming citizens of this country or be super possessive about "owning" America. We welcome Taiwanese (and people from everywhere) to become Americans through legal means but not by this ridiculous lawsuit.
Similarly, if more Mainland Chinese would like to immigrate to Taiwan, there should not be discriminatory policies agaisnt Mainland Chinese. Democracies do not discriminate.
Karen, you write "Democracies do not discriminate." They don't? Are you fully aware of the the United States' past history? Has the policies always been just for immigrants and foreigners? Do you recall Manzanar?
In the 3rd paragraph Michael writes "...the Republic of China...which wants to be independent."
Actually, the ROChina, which has exiled to Taiwan since 1949, never sought to be independent from the mainland China.The Chiang Kai-shek's KMT goverment wanted to retrieve mainland China by wiping out Mao Ze-tung's PRC one day,re-establishing ROC there. While now Ma Ying-jeou's KMT government seeks a friendly tie with the PRC.Ma will not provoke Beijing by declaring independence.
Today in Taiwan there are more people regard themselves Taiwanese,that Taiwan is their motherland.They do not want to be ruled by the PRC,which is still a communist government even though it is economically booming.
Darius, thank you for bringing up Manzanar. The US is hardly perfect. In the past, there have been discriminatory policies against African Americans, Chinese Americans, Japanese Americans, etc. It is the duty of all citizens to stand up to discriminatory policies. If only more Americans stood up to defend Japanese Americans, we would not have had such a shameful chapter in our history.
Similarly, I call for Taiwanese to stand up for the rights of later immigrants from Mainland China to Taiwan (and not treat them as second class citizens or impose discriminatory policies that would make it unduly burdensome for them to immigrate to Taiwan), so that Taiwan would become a more perfect democracy.
I would like to say that this was an interesting read, and that I am very glad the issue of Taiwan independence is not a domestic problem, but discussed worldwide.
I am a Taiwanese who has always been proud of being a Taiwanese. I believe a country is born, when it establishes a self-sustaining government, forms branches in it's executive and judicial level, sets up, and implements laws for itself, and the citizens, provides for its people, and plan for the future of itself as country. Regardless of how Chaing Kai-Shek came to Taiwan and established as a governing body (look up the Taiwan 228 incident), Taiwan has since then been not only a self sustaining government, an financially independent country, but also a major player in the world export market. Not looking at the the trading "agreements", or limitations China has injected in the pot of world trading market, can a so-called "state" of a country be able to do all that in the matter of less then 60 years?
I would like to respond to Karen's various comments on this post.
First, this lawsuit DOES NOT argue or fight for the rights of Taiwanese to BE Americans...lol. We are not trying to be Americans. regardless your thoughts on who or how others should be "Americans" is completely irrelevant to this issue. The treaty was simply implemented so to protect the people of Taiwan "BACK" in 1952 due to the threat of Communist China.
Secondly, most Taiwanese are NOT "Fujianese" (if that's even a word?). If you want to argue about the Japanese INVASION of Taiwan between 1895 and 1945; then it is perfectly safe to assume that most Americans are "British", "Irish", "German", Africans", "Spanish", etc.. and not "Americans" simply because they immigrated here, and have since then reproduced! You ask any Taiwanese, regardless of their political views, whether living in Taiwan or US if they claim themselves to be "Fujianese"; I can assure you to get an million negative responses!
I like to play fair, so I do agree with one thing you pointed out, that we DO need to grow some spine and fight for our own independence! This fight for independence is about how a country IS and has always BEEN an independent country, regardless what other countries thinks. It should not be up to what China claims Taiwan is; nor should it be up to the US to decide the fate of Taiwan. It shall only be Taiwan to steer it's own destiny in this world.
To tag on to some points Karen and Justin made:
The point that Karen made regarding ethnicity is that most people living in Taiwan today are descendants of people from China, making them ethnically Chinese. This is analogous to Americans today who consider themselves to be American, but continue to acknowledge their ancestry as being rooted in England, Germany, Ireland, Africa, etc. I am not making the point that it is wrong for those willing to refer to themselves as "Taiwanese", but they are imprecise on scientific grounds of what is defined as ethnicity. It would be more accurate to say that they are politically Taiwanese, while acknowledging their heritage as descendants of people from Fujian.
Ironically, the Taiwanese aborigines that are actually ethically "Taiwanese" side strongly with the political party favoring unification with China. They do not use the ethnicity to advocate independence for Taiwan, even though they would have a stronger claim under this basis.
Secondly, and this is with the caveat that I have not thoroughly researched the lawsuit, but the plaintiffs here seems precisely to be making the argument that America has sovereignty over the island of Taiwan per the Treaty of San Francisco, and in effect would make inhabitants of Taiwan US citizens. Karen's argument seems to be that independence-minded citizens of Taiwan should not appeal to a foreign country and a foreign people to resolve its domestic political issues. The implication, to be blunt, is that the tactic lacks fortitude. For instance, it would be embarrassing to think that the Democratic Party would appeal to a court in Germany to solve American issues with its proposed stimulus package, or any other domestic political issue. This would be a matter of pride for Americans as it should be for the people of Taiwan.
Finally, I like to take issue with Michael Richardson's following statement from the article,
"Then there is the Republic of China, which the U.S. ALLOWED to be a caretaker government-in-exile when the Communist revolution of 1949 swept mainland China... (Emphasis added)"
I did not want to address this in my earlier post yesterday until I read a few of Michael's other articles purporting the same argument. Frankly, this claim is highly dubious from a historical perspective. The US did not allow the Republic of China to be a caretaker government of the island in 1949. Following the surrender of Japan to the allies in WWII, the ROC held de facto control over China, which at the time includes the island of Taiwan. To imply that the US "allowed" the ROC to have a government in exile would require that the US occupied or administered political control over the island, which was simply not the case. The island was administered by the government of the ROC from 1945-1949 during the Chinese Civil War. The ROC military was stationed there, and a government, led by corrupt Chief Executive and Garrison Commander Chen Yi, was set up to administer the island. The US had no similar governmental or military structure established on Taiwan during that period, or at any other time. Furthermore, the 1943 Cairo Conference established the Allied post-war position that "all the territories Japan has conquered from China, including Manchuria, Taiwan, and the Pescadores, shall be restored to the Republic of China."
During 1945-1949, the US were attending to other issues that affected its own security, such as the looming Cold War. America did not have the political need to be involved in exercising de facto or de jure control over the island of Taiwan. Following the Communist victory in China, the ROC government then treated to Taiwan, which remains the last province they held power over since 1949. To suggest that America controlled the island, and then ceded its control to another political entity is factually incorrect. I strongly urge you to reconsider making the same assertion in your future articles.
First I would like to thank Mr. Michael Richardson for his's report on the Taiwan Treaty Lawsuit to let the world start to know something about Taiwan, which has been treated as an international orphan for more than sixty years since General Douglas MacArthur, then commander of the Allied Forces, issued his FIRST ORDER in 1945 to order or assign one of the Allied Forces generals, Chiang Kai-sek, to accept the Japanese surrender. We Taiwanese do hope that this legal case can help correct the injustice and dangerous conditions in Taiwan and bring in a safer and more peacful situation for the Far East Pacific area.
Secondly, the people living in Taiwan today are NOT Chinese ethnically based on both factual historical and scientific studies. The majority of Taiwan population are descendants of the indigenous people living in the plain areas, called PING-Pu Tsu, and those in living in the high mountain areas, called HIGH MOUNTAIN people. Most of the indigenous people became "Chinese" just by changing their names for some reasons. According to Dr. Sim Kiantek's staistical rearch published in 2003, "only 5.8% of Taiwan's population is from China" which is similar to the result of "an HLA medical rearch about blood by a doctor(actually, many medical school professors in Taiwan have been doing DNA checking and found similar results)" and this percentage of Chinese origin is decreasing due to both mortality and intermarriage with Taiwanese.
Thirdly, this case was resulted in from the fact that it was General MacArthur who did order Chiang Kai-sek to accept the surrender of Japanese forces before they retreated from Taiwan and the U. S. A. government let the Chiang Kai-sek's KMT government to make Taiwan a province of ROC without any international legality, and caused the Taiwanese to suffer unequal, unfair and miserable treatments from the KMT gvornment from one incident to another like the 228 massacre for the past sixty some years. It is the USA's responsibilty to correct and solve this critical and very important problem it helped to create.
I hope those people who are interested in helping to resolve this problem should try to obtain more direct real facts before making conclusive remarks or comments.
Thank you for all the informative comments. I continue to learn more about the 'Tawiwan question' each day. Clark Chu's comments suggest I need to spend some time with a history book. I'm going to withhold replying to his criticism until I study the matter more closely. Formosa's long history as a colony of some other nation has deprived the island of self-determination. Genetic studies now suggest that the island was the home base of early seafaring explorers that settled the far reaches of the Pacific. It is a shame that the motherland of the Pacific is now caught in an international conflict over the future of the island.
I just saw your new post, Michael. Again, I appreciate, along with virtually everyone else on this message board, your interest on this subject. I would welcome more discussion on this subject. If you would like to address this issue further in private, feel free to send me an email.
Mr. Lao, I would like to address a couple of your points:
First, you make an incorrect assertion that General MacArthur was the commander of all Allied Forces in 1945 and was in a position to issue orders to Chiang Kai-Shek. General MacArthur was the Supreme Allied Commander of only the Pacific theatre of WWII. There were many other Supreme Allied Commanders of other WWII theatres, such as General Eisenhower, who held the post for the Western Europe theatre, and Chiang Kai-Shek himself, who was the Supreme Allied Commander of the China theatre. It is fallacious to suggest that MacArthur had, by the organizational schema of the Allied forces, any authority to issue commands to Chiang. There are no international laws anywhere that gave political control of Taiwan to the US between 1945 - 1949. (See the agreement of the Cairo Conference, the Treaty of Taipei, which adopted the provisions of the Treaty of San Francisco) Furthermore, just as a matter of political fact, it would be ludicrous to think that a general of a foreign nation could issue commands to the political and military leader of another nation. It is laughable to think that, for instance, Eisenhower had any command power, by fact, law, or treaty, to issue commands to Stalin or Churchill.
Also, for the sake of argument, even if MacArthur could issue commands to Chiang under the terms of a hypothetical Allied treaty, the fact remains that neither the US, nor any other political entity other than the ROC, established a government and a controlling military presence on Taiwan from the period of 1945 - 1949. As I have already discussed, America was interested in the looming Cold War during that time by assisting with the reconstruction of Western Europe, rebuilding Japan, and even by supporting Chiang in the Chinese Civil War, all of which provides leverage against the Soviet Union. The US had no political incentive to establish political control over Taiwan during that period. And in fact, they did not.
Furthermore, as Karen would argue, the argument in attempting to establish US political sovereignty over Taiwan today is “spineless”. As I mentioned in an earlier post, it is embarrassing that Roger Lin, et al, are seeking to resolve a domestic dispute in the court of a foreign nation. Any American, for instance, would have the pride and honor to resolve a domestic dispute internally, instead of crying for help elsewhere.
Next, I am unfamiliar with the studies you cite regarding ethnicity. But they appear to be far out of the mainstream. For instance, Dr. Sim’s claim that “only 5.8% of Taiwan’s population is from China”, as you have presented them, is clear erroneous. Approximately 2 million people retreated to Taiwan with the KMT from China in 1949 (1). A simple division of that number, even without counting all their descendants, by Taiwan’s current population of approximately 23 million would yield more than 5.8%. Furthermore, according to the Republic of China Yearbook 2008 (2), a source published by the government of the Taiwan, “Han Chinese made up the vast majority of people—98 percent—and the remaining minority were composed of Austronesian indigenous groups. The Han majority are descendant from successive waves of immigrants belonging to different subgroups that started arriving in Taiwan in large numbers in the 17th century.” The circumstantial evidence also supports this. If, as you say, 94% of the people in Taiwan today are not descendants of ethnically Chinese people, why is it that their language, customs, culture, and as you pointed out, names are all largely Chinese? We do not see this trend repeated anywhere else on nearby islands in Southeast Asia, unless they are also populated primarily by descendants of Chinese people (Singapore, for instance.)
And quickly, “intermarriage”, as Mr. Lao has described it, between a Chinese and a Taiwanese Aborigines would not extinguish the Chinese person’s ethnicity. And their children would be of mixed ancestry, not just fully one or the other.
As a final note, I just want to thank you all for this discussion, as I have enjoyed fleshing out these arguments. I am sure very few people will ultimately read this, but for those few, I hope it has been interesting and enlightening.
(1) Cook, Chris. Stevenson, John. (2005). The Routledge Companion to World History Since 1914. Routledge. p 376.
(2) www(dot)gio(dot)gov(dot)tw/taiwan-website/5-gp/yearbook/ch2(dot)html
Mr. Clark Chu.
How come you could say thqat Taiwan was in so-called Chinese Theatre?
I have never seen, or heard a single?Chinese plane flew over Taiwan. Its was clearly part of the Pacific Theatre.
Further, kindly guide me where I can find authentic "Cairo" paper.
Mr. Kuge,
Here is the slightly abbreviated text of the Cairo Declaration, as found on the English-language online archives of the Japanese National Congress (1):
"The following communique is for automatic release at 7:30 P.M., E.W.T., on Wednesday, December 1, 1943.
STEPHEN EARLY
Secretary to the President
President Roosevelt, Generalissimo Chiang Kai-shek and Prime Minister Mr. Churchill, together with their respective military and diplomatic advisers, have completed a conference in North Africa.
The following general statement was issued:
"The several military missions have agreed upon future military operations against Japan. The Three Great Allies expressed their resolve to bring unrelenting pressure against their brutal enemies by sea, land, and air. This pressure is already rising.
"The Three Great Allies are fighting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed. The aforesaid three great powers, mindful of the enslavement of the people of Korea, are determined that in due course Korea shall become free and independent.
"With these objects in view the three Allies, in harmony with those of the United Nations at war with Japan, will continue to persevere in the serious and prolonged operations necessary to procure the unconditional surrender of Japan."
Regarding your first question. My rhetorical questions to you, without conceding any of the facts, as the research is somewhat time-consuming, would be the following: Does it matter to our discussion if a ROC plane flew over Taiwan or not? Is the fact that a nation's plane flies over a territory determinative of which polity is sovereign over that territory? Did it matter during 1945 - 1949? Does the semantics of which theatre Taiwan belonged in matter for the political realities of the 1945 - 1949 period? Does that semantic matter from the 1949 period to today? The answer to all of those questions is no. Please see my earlier posts for a discussion of the rationale.
(1) www(dot)ndl(dot)go(dot)jp/
constitution/e/shiryo/01/002_46/
002_46tx(dot)html
Note: my apologies for the (dot) designations. This message board will not allow me to post website links.
Can someone provide a link to the letter from US National Archive issued last year that the so called "Cairo Declaration" is not recognized by US government to have any effect?
Mr. Chu wrote: There are no international laws anywhere that gave political control of Taiwan to the US between 1945 - 1949. (See the agreement of the Cairo Conference, the Treaty of Taipei, which adopted the provisions of the Treaty of San Francisco);
Are you telling the public that due to no international laws governs Taiwan during 1945 – 1949? Chinese started their Terrorism mass slaughter on Taiwanese on Feb. 28th, 1947 and then, the continued 38 years long martial law. They killed or jailed over 200,000 peoples and their families are over one millions. The victims and their families are both the political criminals in the eyes of Chinese. I do not believe Chinese can walk away from the punishment of their crimes of the War Crimes they committed. It does not have the statute of limitations, just like Jews are chasing after Nazi forever. Formosans are entitled to hound the responsibility of the KMT/ROC/USA related parties.
Here I am telling you Mr. Chu, the Law of the Ware is also one of the international laws that govern all terrorism acts done by Chinese in all aspects. What difference between the political control and the military occupation is not clear during 1945-1949 in Taiwan.
If allow me to say it more clearly, the military control is the everything.
Cheng Kuang Chen [The member of TCRLO] 02-08-2009
ChengKuang Chen:
Believe or not, Japanese did not aware the so-called Cairo Declaration (The normal peoples call it as the Press Release of no one signed) has no one signed and there is no original documents. In any case I like to copy the word of US Government representative attorney, ["irrelevant"] to describe [Cairo Declaration]. It is the common sense in the international law that the formally agreed treaty by most of the both parties revokes or reverses any one side declarations i.e. Cairo and it has no legal binding power, in the old days.
It is funny that only Chinese are always insiting [Caiaro]to fight against [San Fransico Peace Treaty of 1952]
@Clark Chu in regards to McArthur see order No. 1 or order No. 2
Probably was more of allowing it to happen than ordering it to happen
Mr. Chen,
Again, to quickly summarize and reiterate points I have made in previous posts: 1) Insofar as the legal arguments are concerned, the balance of the evidence seems to weigh favorably towards the ROC's de jure control over Taiwan. (Weighing the Treaty of SF and MacArthur's purported orders, against the Cairo Declaration, the Treaty of Taipei, international political realities from 1945 to the present.) 2) Without conceding the first point, even if the legal arguments somehow ends up favoring against the ROC's legitimate de jure sovereignty over Taiwan, it does not matter from a pragmatic standpoint. It does not change who has actually governed Taiwan since 1945, and would have minimal affect on who continues to govern Taiwan today.
As a side note, I do want to say that the events of the 228 massacre were appalling, to say the least. And some international law probably does address this issue. However, I completely agree with you that "...military control is... everything." We have seen many violation of war crime laws, as defined by the U.N., not prosecuted because those with military control are in effect shielded by their might. Off the top of my head, here are some historic examples where some groups may claim that military control trumped war crime prosecution for political leaders, or when it simply trumps justice and basic human decency:
- Stalin, for his massacre of 40 million Russians.
- Mao, for his Cultural Revolution.
- The Japanese government, various Japanese corporations, and Emperor Hirohito, for their brutal and devastating invasion and occupation of several Asian countries, including China, Korea, and the Philippines.
- Andrew Jackson, and others in the US government over time, for repeated violations of treaties with Native American tribes.
- The US government for perhaps illegal annexation of Hawaii.
- I have read about the descendants of the Confederate South in the US make the argument that Abraham Lincoln and Ulysses Grant should be tried for war crimes for instituting a policy of Total War against the American South during the Civil War.
- Former US Secretary of Defense Robert McNamara have mentioned in interviews that there is evidence that the bombings of Japanese civilians during WWII, and the bombings of Vietnamese civilians during the Vietnam War could constitute war crimes.
- Chile, Armenia, Tibet, the former Yugoslavia, Darfur, Spain, all of colonized Africa, this sad list just goes on.
The common thread here is that there was largely no justice from the perspective of any of these victims, and that military power often is the controlling variable. A better line of questions, I believe, is where do you start to seek justice against those with military power, who should you go after first, and more importantly, how do you effect and institute that justice?
To Karen of earlier posts, we US citizens should also feel shamed. In both 2004 and 2008, our goverment officials used every means possible to dissuade Taiwan residents from voting on their referenda relevant to Taiwan status. Along with Chinese influences in Taiwan, US told them not to hold the votes or at least absent from voting the referenda! We, the pillar of democracy was afraid of Taiwan residents to express thier free wills. So all referenda were invalidated because of lack of voters participation, i.e. less than 50% voting rate. By standing up, shall we US citizens encourage other countries to not use peaceful means !? That's a very, very shameful accusation!
The lawsuit could be a double edge sword. If
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
ROGER C.S. LIN, et al.,Appellants,
v.
UNITED STATES OF AMERICA, Appellee.
No. 08-5078
Thursday, February 5, 2009
Washington, D.C.
The above-entitled matter came on for oral
argument pursuant to notice.
BEFORE:
CIRCUIT JUDGES HENDERSON, BROWN AND GRIFFITH
APPEARANCES:
ON BEHALF OF THE APPELLANTS:
CHARLES H. CAMP, ESQ.
ON BEHALF OF THE APPELLEE:
MELISSA PATTERSON, ESQ. (DOJ)
C O N T E N T S
ORAL ARGUMENT OF:
CHARLES H. CAMP, Esq.
On Behalf of the Appellants
MELISSA PATTERSON, Esq. (DOJ)
On Behalf of the Appellee
PROCEEDINGS
THE CLERK: Case number 08-5078, Roger C.S. Lin, et al., Appellants v. United States of America. Mr. Camp for the Appellants, Ms. Patterson for the Appellee.
THE COURT: Mr. Camp, Good morning.
MR. CAMP: Good morning. May it please the Court, I am Charles Camp on behalf of plaintiffs/appellants.This is a treaty interpretation case. We’re asking the District Court to interpret the San Francisco Peace Treaty and determine whether the plaintiffs have any rights under theU.S. Constitution.
THE COURT: That’s why the issue is before is, isn’t it, whether it’s a treaty interpretation case or some other case. Doesn’t your claim turn on whether the United States exercises some form of sovereignty over Taiwan, isn’t that the gravamen of your argument?
MR. CAMP: The Court would have to examine sovereignty, but not determine sovereignty. For example, in the Boumediene case, they looked at the fact, the Supreme Court looked at the fact that Cuba exercises -
THE COURT: You mean the Boumediene case, I’m sorry.
MR. CAMP: Yes -
THE COURT: Okay.
MR. CAMP: The Supreme Court looked at the fact that Cuba has ultimate sovereignty --that was their words --Guantanamo Bay, but the U.S. exercises complete control and so they examined sovereignty to determine what constitutional rights the people at Guantanamo Bay have.
THE COURT: Your claim is that the United States exercises sovereignty over Taiwan.
MR. CAMP: Under this San Francisco Peace Treaty, it says that the United States is the principal occupying force over Taiwan. And so the question then is what rights, if any, do my clients have under the Constitution.
THE COURT: And they have no rights unless the United States exercises sovereignty over Taiwan, right?
MR. CAMP: They have to look at sovereignty, but they don’t determine sovereignty.
THE COURT: Do your clients have any rights if the United States has no sovereignty over Taiwan?
MR. CAMP: If the U.S. is not the principal occupier -
THE COURT: I’m using the word sovereignty, that’s the word. Answer my question.
MR. CAMP: Sovereignty.
THE COURT: If the United States exercises no sovereignty over Taiwan, do your clients have any claims, any rights?
MR. CAMP: If they control it. For example, in Cuba, in Guantanamo Bay, the U.S. controls Guantanamo Bay. I don’t know if that means they have sovereignty or not, but they control it and they have in essence, I would consider it to be de facto sovereignty because of their control. And the control---
THE COURT: So does the United States control Taiwan?
MR. CAMP: They don’t control it. Our position is they have sovereignty de jure (phonetic sp.) as a matter of law under the San Francisco Peace Treaty because they are the principal occupier.
THE COURT: Which branch of government does the Constitution give the power to determine who’s sovereign over a ---
MR. CAMP: There’s no determination of sovereignty that’s necessary. The fact -
THE COURT: You just said they have sovereignty de jure.
MR. CAMP: Yes, and that’s -
THE COURT: Which branch of government decides who has sovereignty de jure over land?
MR. CAMP: The U.S. has a relationship with Taiwan as set forth in the treaty. That’s been decided as a political matter years ago.
THE COURT: That’s not my question. I’m asking about more general principle, principles of law by which we have to decide this case. Which branch of government determines who has sovereignty de jure over a piece of land?
MR. CAMP: Well, it is for the political branches to determine who has sovereignty. But we’re not asking for a determination of sovereignty. There’s an examination of sovereignty.
THE COURT: I’m asking questions about principles. We’ll get to your case.
MR. CAMP: Okay.
THE COURT: But it is for the political branches to decide who has sovereignty de jure over a piece of land, right?
MR. CAMP: Well it’s already been determined and the treaty is our position.
THE COURT: Yes, I understand that’s your position, but it’s for the political branches to make the determination who has sovereignty de jure, right? And you say the treaty here -
MR. CAMP: It’s already been decided, yes, correct. And so therefore the question is it is for the courts to decide --well because the U.S. is the principal occupying force over Taiwan, it is therefore for the courts to determine what rights do people living there have under the Constitution. Courts decide what the laws are. Courts decide -
THE COURT: In the red brief in page 3, the Government says, “In 1954 the United States and the Republic of China signed a Mutual Defense Treaty wherein the United States recognized the Republic of China as the Government of China and recognized Taiwan to be one of its territories.” Is that accurate?
MR. CAMP: No, that’s not accurate.
THE COURT: It’s not? What’s wrong with it?
MR. CAMP: That was for a very limited purpose there. The legislative history for the Mutual Defense Treaty which is cited in my reply brief makes clear that the Mutual Defense Treaty made no change whatsoever in who has sovereignty over Taiwan. The Republic of China oversees Taiwan.
THE COURT: But the United States recognized the Republic of China to govern Taiwan.
MR. CAMP: Well the Republic of China oversees it administratively. That’s what the legislative history makes clear. It is that it is an administrative overseeing of Taiwan that the Republic of China does.
THE COURT: Does the Republic of China issue passports to its citizens?
MR. CAMP: It issues passports, but those are not recognized by a lot of places because there are a lot of places don’t -
THE COURT: The Republic of China itself issues passports for its citizens.
MR. CAMP: That’s my understanding.
THE COURT: Is there any passport that’s issued by the Taiwanese Government? I know this case involves the plaintiffs seeking U.S. passports.
MR. CAMP: Yes, they were like non-U.S. citizen passports.
THE COURT: What type of identification or what do they travel on now?
MR. CAMP: They get a travel document, but it’s not recognized by countries that don’t recognize Taiwan. It’s a discretionary matter. That is the problem that the people from Taiwan have is they can’t go to countries that don’t recognize their travel documents. It’s like showing up with a passport issued by Maryland, you know, they just go well what’s this? This is not a country.
THE COURT: And does the Taiwanese Government issue these travel documents?
MR. CAMP: Yes.
THE COURT: Okay.
THE COURT: Assuming that you’re right, you agree that the political branches decide this question of sovereignty and you think that we did that in the Treaty of San Francisco.
MR. CAMP: Yes.
THE COURT: But there have been other actions by the political branches, namely the Executive, which have articulated this idea of strategic ambiguity. Can the Court simply ignore those later actions?
MR. CAMP: None of those later actions changed the treaty. And there have been no later treaties to amend. It was left, who owns Taiwan was left purposefully as an open question when they signed the San Francisco Peace Treaty included in the appendix or documents pertaining to the negotiation of the San Francisco Peace Treaty. And it’s very clear that it was left open because they wanted the option to decide what happened to Taiwan at a later time. There was no agreement that could be reached among the allied forces in Japan as to who gets Taiwan. And that question is still open and the Executive cannot issue something that modifies a treaty. Now the treaty is the supreme law of -
THE COURT: In your answer, haven’t you just acknowledged what the Government’s position here is, is that whoever has sovereignty over Taiwan, it isn’t the United States. It’s an open issue. That’s been the policy of the Executive for 50 years or so.
MR. CAMP: No, but as a matter of law, we are the principal occupying force, and that is the status as a matter of law today. And from that rights flow, and that is for the courts to decide what rights flow from that status. The status of the U.S. being the principal occupying force.
THE COURT: Can you cite me any examples in history where the United States has been the principal occupying force of a territory and the residents of that territory were entitled to passports from the United States or other rights.
MR. CAMP: Yes, the Philippines is one example. In fact, there was a point in time when we were the principal occupying force over the Philippines. After following World War II, the same situation, the people, I’m sorry, the people in the Philippines had rights to U.S. passports that had been recognized. So they had passports and then there was a time when we were turning over the sovereignty for the Philippines to its own people, to its own government. And there was a delay before the new government would issue passports. And so during that gap when we were there and the government became effective, you couldn’t get passports and somebody there went all the way to the Supreme Court and said it’s cruel and unusual punishment for people not to be able to get a passport and the Supreme Court agreed. The people in limbo had no rights to passports, and they said -
THE COURT: But that’s never been done for the people in Taiwan.
MR. CAMP: No, this issue has not come up on Taiwan before.
THE COURT: Has it ever been attempted by anyone in Taiwan before?
MR. CAMP: No, no.
THE COURT: Let me ask you about the claim that your clients are non-citizen nationals. Does that depend on this determination of sovereignty or is that a separate basis on which you are arguing?
MR. CAMP: Whether they are nationals, first of all, is a question for courts to decide. The immigration statute makes it clear that decisions on nationality are for the courts to decide. And the courts will decide on the basis of the relationship of the territory where the people live to the United States. You examine the relationship just like in the Guantanamo Bay case, they examined the relationship between the U.S. as control of Guantanamo Bay and here. And then they examined the relationship and then decided what the rights were. It’s the same thing. You examine the relationship that exists, that previously and has existed for years between the U.S. and Taiwan and then you decide from there what flows from that, what rights flow from that. And non-citizen nationality is one of the things that we are seeking.
THE COURT: I guess my specific question is are you focusing on this idea of permanent allegiance to the United States which courts have generally rejected or are you making a different argument?
MR. CAMP: Yes, it is for courts to decide, just one point. It is for courts to decide whether there’s this permanent allegiance. That’s a judicial decision and not an Executive or political decision. You have to look, yes, what is the legal relationship? What is the relationship between the U.S. and Taiwan and that is set forth in the San Francisco Peace Treaty and then from that you decide what rights they have. Are they nationals or not ? But that’s a substantive issue that, you know, we basically want our day in court on. You know, we don’t believe this is a political question case and we want our day in court. That’s obviously why we’re appealing. We don’t think the political question doctrine applies. There’s not a single case that the Government cites that says that the political question doctrine has ever prohibited a court from interpreting a treaty or determining the existence of constitutional rights. In fact, the Government’s own brief says that all the cases we have cited in our briefs, in the appellants’ briefs are in opposite it says because all the cases involve judicial interpretation of statutes or treaties. Well that’s precisely correct. All of our cases do involve the interpretation of a statute or a treaty and the determination of the constitutional rights.
THE COURT: So you are not arguing that Boumediene actually does away with the political question doctrine. You are just arguing that it doesn’t apply in this circumstance.
MR. CAMP: I’m arguing that in that case the courts looked at the relationship between the U.S. and Guantanamo Bay. They examined the sovereignty basically, the control. What was the situation? In Downes v. Bidwell in 1901, the Supreme Court said that the determination of what particular provision of the constitution is applicable in all cases involves an inquiry into the situation of the territory and its relationship to the United States. And that was the case relied on in the Guantanamo Bay case and the Boumediene case. You know, you can examine the situation.
THE COURT: Now you realize that we are reluctant followers of Boumediene, so we don’t get a lot of warm fuzzies.
MR. CAMP: Okay, I -
THE COURT: But we are followers.
MR. CAMP: Yes, but, so I’m not asking --there’s no determination of sovereignty we’re asking for. We’re only asking that you examine the situation as was done in the Boumediene case and as was done in 1901, Downes v. -
THE COURT: If we were to find that later Executive action somehow altered the San Francisco Peace Treaty, your case really turns on San Francisco Peace Treaty being governed wrong today, right?
MR. CAMP: Correct, if the San Francisco Peace Treaty doesn’t exist in its current form, then we’re done. But the treaties are spring law of the land and can’t be changed except by another treaty, or we can withdraw.
THE COURT: Wouldn’t you acknowledge that the Executive has taken since the treaty positions that are contrary to yours?
MR. CAMP: No, no.
THE COURT: The Executive has taken the position that the United States does not have sovereignty or control over Taiwan.
MR. CAMP: It hasn’t actually done that. It has basically said we are not changing -
THE COURT: It’s a surprise to the State Department to hear they haven’t done that.
MR. CAMP: No, they have never said we are no longer the principal occupying force of Taiwan. I mean they have never been, if they had specifically intended to say we are no longer the principal occupying force of Taiwan, they have never used those words. There’s never any document that the Executive or the legislative branch has ever said we are no longer the principal occupying force of Taiwan and there have been no decisions by the Executive Branch or Congress that people in Taiwan are not nationals. This is just an area that hasn’t been decided.
THE COURT: Let me ask you about the Treaty of Taipei which was between the Republic of China and Japan and at least in that treaty, the Republic of China said in Article 10 that the inhabitants and former inhabitants of Taiwan and the Pescadors (phonetics sp.) are nationals of the Republic of China. Now what do we do about that treaty if we say well, they are U.S. nationals as well? I mean what weight do we give that treaty where the Republic of China has and probably in other places too, I don’t know, but declared the people of Taiwan to be nationals of the Republic of China?
MR. CAMP: Well, I’ll admit I have not ever read those words in that treaty that indicate that the people of Taiwan are nationals. That it’s agreed that they are nationals of the Republic of China.THE COURT: Well what it says in Article 10 is nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan, Formosa and Penhu, the Pescadors and their descendants.
MR. CAMP: That doesn’t change our treaty that says that we are the principal occupying force of Taiwan.
THE COURT: Well it may not change the treaty but what do we -
MR. CAMP: I think that would be, frankly, I think that would be a political decision to decide what effect does that treaty have on our Government. But, I guess courts are only charged with interpreting treaties so you can argue that either way. But I am unaware -
THE COURT: Let me ask you, if I understand your arguments, you’re relying on a phrase in the treaty, principal occupying power, right, United States is principal occupying power.
MR. CAMP: Correct.
THE COURT: You’re saying that from that language flows rights to citizens of Taiwan. What are the limits of those rights? So they receive all the constitutional rights of a citizen of the United States?
MR. CAMP: Well there are, the Insular Cases back from the turn of the century, 1900 dealt with the issue of what rights apply. In fact, in that case --I’ve got it right here --the question was in Downes v. Bidwell again, it says the determination of what particular provision of the Constitution is applicable involves an inquiry, okay. The real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Puerto Rico --you had asked for other examples, the Philippines --when we went there but which of its provisions were applicable.
THE COURT: Well right now you’re asking for passport rights, right? But on the force of your reasoning, habeas corpus extend that? I mean you’ve been talking about the Boumediene case.
MR. CAMP: Well, I would, I mean the cases say fundamental personal rights declared in the Constitution. That’s what the cases support. That’s Torres v. Puerto Rico and the -
THE COURT: That’s what the case supports -
MR. CAMP: Fundamental -
THE COURT: So what’s some of the fundamental rights, American constitutional rights that citizens of Taiwan are entitled to under your reasoning? You’re saying get a passport, that’s one of them.
MR. CAMP: Sure, well it’s in the declarations that I sought which are in the complaint. The first two declarations have to do with requiring that they are noncitizen nationals. The ones that they are the Fifth Amendment Right against life, liberty and property without due process of law. The Fourteenth Amendment, same thing. The Fifth Amendment, right to travel without due process of law which requires notice and hearing, in other words, right to a passport. The Supreme Court held that it’s, you know, it’s cruel and unusual punishment to not allow somebody to have a passport.
THE COURT: And your argument is ever since the San Francisco Peace Treaty, the citizens of Taiwan have been entitled to these -
MR. CAMP: Fundamental personal rights under the Constitution, correct, as well as the Eighth, Fourteenth and the First Amendment right to petition the Government for redress. So, but those are substantive questions.
THE COURT: So citizens of Taiwan who complain under the First Amendment, who do they bring that against? Do they bring that against the Republic of China or they bring that against -
MR. CAMP: No -
THE COURT: --the United States -
MR. CAMP: The United States, the United States. If they have fundamental rights -
THE COURT: So all the government actors in Taiwan right now are agents of the United States?
MR. CAMP: The Republic of China is holding Taiwan basically in trust.
THE COURT: Miranda rights, so I’m a citizen of Taiwan and I’m arrested and the arresting authority doesn’t read me my Miranda rights, I now come to federal district court -
MR. CAMP: We haven’t asked for that. We haven’t asked for that. It’s just fundamental rights and what that means is -
THE COURT: Jury trial?
MR. CAMP: We’re not asking for that. We’re not asking for that. I mean it’s -
THE COURT: I’m trying to understand the force to get to your -
MR. CAMP: Sure, I mean that’s a substantive question in terms of precisely what rights -
THE COURT: It’s breathtaking what you’re asking for is quite breathtaking.
MR. CAMP: Well, it might be, but that’s what the law supports and that’s what the facts support. And courts are the ones charged with determining what constitutional rights exist and we’d like our day in court to have the court determine what constitutional rights exist.
THE COURT: All right, thank you.
MR. CAMP: Thank you very much.
THE COURT: Thank you.
THE COURT: Ms. Patterson.
MS. PATTERSON: May it please the Court, Melissa Patterson on behalf of the United States.Your Honors, we ask this Court to affirm the District Court’s dismissal of the action here either on the grounds that in order to resolve the United States de jure sovereignty over Taiwan would involve a political question or if this Court construes the complaint here to only assert that plaintiffs are nationals under the United States under the Immigration and Nationality Act. I think that can be exposed just simply on the merits on the statutory grounds to be a national is defined within that act as persons born in the outlying possessions of the United States which are limited to America, Samoa and Swains Island.
THE COURT: What is the Government’s position about status of the San Francisco Peace Treaty, particularly the language that United States is the principal occupying power? Is that good law?
MS. PATTERSON: I believe the treaty is in effect. We have not taken a position on whether or not the United States is, in fact, the principal occupying, I’m sorry, the United States has not --let me be clear. The United States is not the principal occupying power over Taiwan.
THE COURT: What has changed, because that’s the language of the treaty, right?
MS. PATTERSON: Yes, but I think there have been several pertinent changes if this Court is looking at de jure sovereignty. First of all, there was the 1954 Mutual Defense Treaty in which the United States recognized Taiwan to be among the Republic of China’s territories. In 1972 we began talks with the People’s Republic of China. In 1978, President Carter announced that as of January 1, 1979 we would be discontinuing diplomatic relations with the Republic of China and opening up relations with the People’s Republic of China.
THE COURT: But how is that inconsistent with the language of the principal occupying power? That perhaps the 1954 Mutual Defense Treaty is recognizing a government, the Republic of China.
MS. PATTERSON: Certainly, Your Honor.
THE COURT: Are there any other examples, or is that sufficient?
MS. PATTERSON: I think that’s sufficient, Your Honor. Again we haven’t offered up an interpretation of the San Francisco Peace Treaty because we don’t think it’s relevant here. What plaintiffs are arguing is that the San Francisco Peace Treaty makes the United States the principal occupying power and then they take in inferential leap to say that means that the United States is the de jure sovereign and then there’s another leap to de jure sovereignty means that they are nationalists.
THE COURT: What does that language mean though? I mean it means something.
MS. PATTERSON: The principal occupying power?
THE COURT: Yes, right.
MS. PATTERSON: I believe that refers to the fact that at the time the United States signed that treaty, it was the principal occupying power of Japan. I’m a little hesitant to offer a definitive, the United States definitive construction of that treaty because again, we just don’t think it’s relevant here. Plaintiffs are claiming that they have rights that stem not simply under that treaty, but from the fact that that treaty makes the United States the de jure sovereign over Taiwan. And the United States has made it very, very clear that whoever the de jure sovereign of Taiwan is, it is not the United States. Moreover, all of plaintiffs’ claims are based -
THE COURT: If, in fact, the treaty, that language of treaty creates the United States as the de jure sovereign, can the United States walk away from that treaty? I don’t think they can.
MS. PATTERSON: Certainly, Your Honor, I think that any questions about who the de jure sovereign is over a territory are entirely within the province of the political branches.
THE COURT: If a treaty is established that the United States is the de jure sovereign -
MS. PATTERSON: I believe that -
THE COURT: --would the Executive unilaterally change that?
MS. PATTERSON: I’m a little shaky. In my reflection of Goldwater v. Carter, but I believe that the president can -
THE COURT: Let me help you, the answer is no.
MS. PATTERSON: Okay, but so I don’t believe there’s anything in that treaty that would establish the United States as the de jure sovereign, and I think that the extent to which you need to look at that treaty here is somewhat informed by this Court’s statements about how you go about examining a political question. And this Court in the Vanquil (phonetic sp.) decision clearly and quoting Baker said you need to -
THE COURT: What’s different here is if the language of the treaty supports what counsel said. If, in fact, the language principal occupying power means that the United States is the de jure sovereign, you’re in trouble.
MS. PATTERSON: Well -
THE COURT: You’re in trouble.
MS. PATTERSON: Let me offer up the United States’ position that that is not what that treaty means. Whatever else it may mean, it does not mean that the United States is the de jure sovereign over Taiwan and I think in resolving this question, this Court should look to perform that discriminating analysis of the particular question posed here. And the particular question posed here is not whether or not the United States is the principal occupying power, but whether or not plaintiffs are nationals of the United States and further whether or not the United States is the de jure sovereign over Taiwan, and on both of those questions, plaintiffs’ claims fail.
THE COURT: If the United States is the de jure sovereign over Taiwan, would they be nationals?
MS. PATTERSON: Not necessarily, Your Honor.
THE COURT: Okay, so it’s possible that those questions are actually separate.
MS. PATTERSON: Yes, Your Honor. And as we -
THE COURT: Why is that? I don’t -
MS. PATTERSON: Because national is a statutory term defined in Immigration Nationality Act.
THE COURT: America, Samoa and Swain Islands -
MS. PATTERSON: Exactly, Your Honor. And I suppose that plaintiffs are alleging that there is some non-statutory route to national status and I think that there’s a pretty solid wall of precedent all eight circuit courts to have examined whether or not you can become a national within the meaning of the Immigration Act by any non-statutory routes. They clearly said you cannot.
THE COURT: But what right -
THE COURT: Was that still true after Boumediene?
MS. PATTERSON: I -
THE COURT: I mean I think what Mr. Camp is arguing is that if de facto sovereignty is enough, then if they have a claim of de jure sovereignty, they’re actually in a stronger position.
MS. PATTERSON: I think that’s simply not true, Your Honor. All of the cases, Boumediene and the Insular Cases, the Supreme Court made it clear that what they were examining there was the United States objected to degree of controller perhaps de facto sovereignty. And the Boumediene decision explicitly noted the same language that the District Court here noted from Vamiliar Brown (phonetic sp.) they declined to question the Government’s assertion that the United States was not the de jure sovereign over Guantanamo Bay, just as this Court should decline to question the Executive’s assertion that United States is not the de jure sovereign over Taiwan. So in all of the plaintiffs’ claims here rest on an assertion of de jure sovereignty. They are not asserting nor could they assert that the United States exercises any actual control over Taiwan.
THE COURT: But doesn’t that lead us to a sort of odd result that de facto sovereignty is more powerful than de jure sovereignty if that’s what exists here?
MS. PATTERSON: That may be odd, but that’s what the Supreme Court said and actually I think there’s a good reason for that, Your Honor. In the Insular Cases, or at least in the Boumediene decision discussing the Insular Cases, the court said the issue there wasn’t necessarily about the you know, de jure reach of the Constitution over a particular territory. It was what limitations in here and the United States’ actual exercise of power over people so that the constitutional limitations follow an actual exercise of power as opposed to a paper trail.
THE COURT: What rights would come to someone who couldn’t meet the statutory requirement for being a national but lived in a territory over which the United States exercises de jure sovereignty?
MS. PATTERSON: I don’t know that that question’s ever been presented because I don’t think it’s ever been explored if the United States holds simply de jure sovereignty but doesn’t exercise any actual control. I don’t know what rights we have there.
THE COURT: --but what about in de facto sovereignty, I’m just wondering other than the statutory right regarding national which you say precludes, are there any other rights that someone would have?
MS. PATTERSON: If the United States were exercising, I think your question is de facto?
THE COURT: Yes.
MS. PATTERSON: Yes, I think the Insular Cases did discuss what various rights would attend the United States exercise of actual power of their objective degree or control. And the court noted that it’s a highly case specific type of analysis that depends on the United States’ particular relationship. And I think in some of those Insular Cases, the court indicated that the stronger the ties, the more the control the United States had over the area. That could change the shape of the onstitutional limitations that went with the exercise of that power. So I can’t offer you up a general laundry list of rights that might go along with an exercise of de facto power.
THE COURT: So they don’t include the right to a passport.
MS. PATTERSON: I don’t think they would include the right to the passport, certainly, Your Honor. If there are no further questions from the Court, the Government will rest.
THE COURT: Actually I do have a question.
MS. PATTERSON: Yes.
THE COURT: It’s a minor point. In your red brief at 18, you quote our decision in Boumediene that quote, “The determination of sovereignty over an area is for the legislative and Executive requirements.” Do you agree with that, is that a legislative function, determination of sovereignty over an area? I would have thought that the Government’s position would be that that’s exclusively for the Executive. And the Constitution gives to the Executive the right to recognize ambassadors (indiscernible).
MS. PATTERSON: Well certainly, Article 2 is rich with delegations to the Executive Branch. To the extent that the legislative powers hold a role here, I think that they’ve clearly spoken in this case. I don’t know if every case would involve a legislative weighing in on the particular sovereignty.
THE COURT: All right. Why don’t you take two minutes.
MR. CAMP: Thank you.
THE COURT: To respond to anything the Government has said.
MR. CAMP: Yes, just very, very, briefly. I just wanted to point out that in the Boumediene case it says it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation while the plenary control or practical sovereignty of another. This condition can occur when the territory is seized during war as Guantanamo was during the Spanish American War. And so, you know, we conquered Japan. Japan gave up all right, title and claim and territories including Taiwan. We are the principal occupying force, therefore and so the Boumediene case does deal with importance of de jure sovereignty and points out, of course, that the Insular Cases are still effective today. Obviously it says the century old doctrine informs our analysis in the present matter. That being that when we have sovereignty over a territory, there are guarantees to certain fundamental personal rights declared in the Constitution.And, yes, counsel for the Government pointed out that there’s this discriminating analysis of the six Baker factors that has to be done and the District Court didn’t do that. She just sort of, you know, she didn’t-
THE COURT: --She identified two Baker factors.
MR. CAMP: But she -
THE COURT: You only need one.
MR. CAMP: Well, but I don’t think she understood and I don’t think the --I don’t think she, she clearly didn’t understand that we were not seeking a declaration of
sovereignty. We were seeking a declaration of rights under the Constitution following an interpretation of the treaty by the court. So the court just sort of stepped off on the wrong foot and then if you assume that we were seeking to have a court decide who owns Taiwan, then the political act question cases would apply and she would be right. The Government would be right, but that’s not what we’re seeking. We’re not asking the Court to decide who owns Taiwan. We’re asking the Court to determine based on the language of the treaty, what are the rights, the fundamental constitutional rights -
THE COURT: Because your argument is that the treaty makes clear that the United States is the -
MR. CAMP: Principal occupying force.
THE COURT: With that comes the power, the right to have a passport.
MR. CAMP: Correct, correct, correct. And just one -
THE COURT: And other indicia of citizenship, protection under the U.S. Constitution.
MR. CAMP: Yes, certain fundamental rights to be determined. And I just wanted to point out, if I may, just one -
THE COURT: All right.
MR. CAMP: --more minute, nevertheless, whether my clients owe permanent allegiance to the U.S. for purposes of determining whether or not they qualify as nationals is a question to be decided by federal courts. Congress in the Immigration Act does not provide any explicit guidance as to the circumstances under which a person owes permanent allegiance to the U.S. This is from a Fourth Circuit case (2006) Draggient v. Gonzalez (phonetic sp.). And there are other similar cases. It is for the courts to decide nationality and for the courts to determine permanent allegiance. And there’s nothing there that says that you have to go to the statute. I think it’s an open question.
THE COURT: All right.
MR. CAMP: Thank you very much.
THE COURT: Thank you. Call the next case.
DIGITALLY SIGNED CERTIFICATE
I certify that the foregoing is a correct
transcription of the electronic sound recording of the
proceedings in the above-entitled matter.
Caroline G Gibson February 8, 2009
DEPOSITION SERVICES, INC.
Deposition Services, Inc.
6245 Executive Boulevard
Rockville, MD 20852
Tel: (301) 881-3344 Fax: (301) 881-3338
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Either way the lawsuit goes, US wins. But it is a double edge sword for Taiwan residents. If Roger Lin, et.al., successfully making US goverment to take over the control of Taiwan, US could use it as a pawn to deal with PRC, or, allow all Taiwan residents to vote on free wills under UN supervision so US looks good. Unfortunately, given the current economical and political currents, the former is more likely. Because we US citizens are more afraid of the inconvenient truths given no 100% clear cut demerts right here and now.
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