2003 International Law Update, Volume 9, Number 4 (April)

2003 International Law Update, Volume 9, Number 4 (April)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

CUSTOMS

In suit by U.S. company and others challenging seizure and retention of aircraft by Canadian customs officer, Ontario Court of Appeal concludes that tort claims are time-barred but that allegations of intentional failure to protect seized planes from damage may go to trial

In October of 1995, with permission from the customs authorities, 144096 Canada Ltd. (corporate plaintiff) flew five Cessna aircraft from the United States to the airport in Ottawa, Canada, not as “imports” but for temporary winter storage until January 1996. In January, Ron Williams, the personal plaintiff and president of corporate plaintiffs 144096 Canada Ltd. and 144096 Canada Ltd. (USA) (a Delaware corporation), tried to have four of the planes flown back to the United States. Bad weather, however, forced four of them to turn back to Smith Falls, Ontario, and mechanical problems prevented the fifth plane from leaving Ottawa.

Nelson Plamondon (defendant), a customs officer, seized the five planes and one helicopter owned by one of corporate plaintiffs on April 13, 1996, on behalf of Canadian Customs for breaching the Customs Act. The plaintiffs filed a proceeding against the Minister of National Revenue under the Customs Act to challenge the seizure. In August, 2000, the Federal Court of Canada, held that plaintiffs had not violated the Customs Act.

Defendant had also taken possession of a Cessna 185 owned by 144096 Canada Ltd. on May 1, 1996, and returned it on or about June 25, 1996. Defendant did not send the helicopter back to Mr. Williams until June 26, 2001, and the other planes did not arrive until August of 2001. According to plaintiffs, the returned aircraft were damaged and not air-worthy and were “almost worthless” because of improper storage during the long period of government retention.

Plaintiffs filed this action in the Ontario courts against the Crown, Plamondon and the Attorney General of Canada on May 22, 1998. The first complaint alleged negligent and/or willful damage to the aircraft, and negligent and/or willfully wrongful storage. It also claimed that defendants falsely inflated the value of the aircraft to increase the penalties for breaching the Customs Act. In April 2001, plaintiffs amended the complaint to allege that all of the relief claimed rested on contravention of plaintiffs’ rights at common law and under Sections 7 and 8 of the Canadian Charter of Rights and Freedoms.

The trial court gave summary judgment to defendants. It also dismissed the action for wrongful seizure and wrongful storage of the aircraft on the ground that Section 106(1) of the Customs Act, R.S.C. 1985, c.1 (2nd Supp.) barred the action. Plaintiffs filed this appeal, contending, inter alia, either that Section 106(1) does not apply at all on the facts of this case, or that it does not apply in the same way to each of the defendants.

According to the Court, the key issue in this case is whether the motions judge correctly dismissed the case based upon plaintiffs’ failure to file the action within the three-month limitation period set out in Section 106(1) of the Customs Act. The Court of Appeal for Ontario allows the appeal in part.

The Court first rules on the timeliness of the tort claims. “With respect to the tort claims, there is no dispute that the seizures took place in 1996, and that this action was commenced in 1998. The defendant Plamondon is an officer as defined in Section 2(1) of the Customs Act. Section 106(1) of the Act requires that any proceeding be commenced against an officer within 3 months of when the cause of action arose. That was 1996. This action, brought 2 years later, is out of time as it relates to Plamondon.”

“The Crown’s liability can only be vicarious by reason of the operation of Section 3(a) and Section 10 of the Crown Liability and Proceedings Act (CLPA). Further, Section 24(a) of the CLPA gives the Crown the right to raise the limitation defence. For both of these reasons the tort claims are statute‑barred.” [¶ 11]

First, with respect to the case against the Crown, plaintiffs urged that the liability is direct, not vicarious, under Section 3(b) of the CLPA. Accordingly, even if the vicarious liability of the Crown for the acts of Mr. Plamondon and other Crown employees would make Section 106(1) applicable, Section 106(1) does not apply because the Crown’s liability is direct.

As a result, plaintiffs maintain, the applicable limitation period would be the six years set forth in the concluding clause of Section 32 of the CLPA or, possibly, the six years period under Ontario law, i.e., in Section 45(1)(g) of the Limitations Act, R.S.O. 1990, c. L.15. Significantly, plaintiffs also allege that Mr. Plamondon’s acts respecting the plaintiffs were motivated by malice and intent to inflict damage.

The Court then addresses plaintiffs’ position on the issue of the Crown’s liability. “It is difficult to see how, by [the] terms [of Section 3(b)], it could have application to the claim based on wrongful seizure. ... [T]here is no necessary connection, in general or on the facts of this case, between a wrongful seizure of property and a subsequent wrongful treatment of the property. Separate acts are involved in each case.”

“With this distinction in mind, it appears, according to the wording of Section 3(b), which includes ‘possession’, that the Crown could be liable under this provision for damage to the aircraft while the aircraft were in the Crown’s possession, assuming that the possession was that of the Crown and not of particular employees.” [¶ 17]

“However, I am inclined to think that the better view is that Section 3(b) is not applicable to this case. It is a provision that recognizes cases at common law where the duty of the defendant to the plaintiff is direct and not vicarious as in occupier’s liability cases.” [¶ 18]

As to the negligent storage count, the Court next decides when the limitation periods involved began to run. “It cannot be April 13, 1996, the day of the seizure of the five aircraft and the helicopter because the storage only began on that date. The storage ended in June 2001 with respect to the helicopter and in August 2001 with respect to the aircraft. The allegation is that the damage occurred when the aircraft were in the respondents’ possession. There is no evidence relating to when the damage ended. The action was commenced in May 1998. In these circumstances I do not think that a summary judgment can be granted based on the running of the limitation period in Section 106(1) of the Customs Act, assuming it to be applicable.” [¶ 22]

“In summary ... I have concluded that the claim for the seizure of the aircraft does not come within Section 3(b) and, with respect to the damage caused by the storage, it cannot be concluded at this stage of the litigation when the limitation period, whatever it be, began to run. If Section 3(b) is applicable to the claim based on storage, ... the applicable limitation period would be six months as provided in Section 7(1) of the Public Authorities Protection Act (PAPA), and not six years as submitted by the [plaintiffs].” [¶ 23]

The Court of Appeal concludes that Section 7(1) of the PAPA applies to the Crown in this case. “The respondents submit, and the motions judge held, that by virtue of Section 24(a) of the CLPA, the applicable limitation period respecting the claim against the Crown is also the period provided for in Section 106(1) of the Customs Act.”

“The reasoning is as follows. Section 24(a) provides that ‘in any proceedings against the Crown, the Crown may raise any defence that would be available if the proceedings were a suit or an action in a competent court between subject and subject.’ Because the ‘subject’, Plamondon, has available to him the ‘defence’ of Section 106(1), the Crown may also rely on Section 106(1).” [¶ 24]

“While as a matter of principle and policy ... the limitation period governing claims against an employee should also be applicable to the claim against the employer based on the employer’s vicarious liability for the employee’s tort, I am not sure that this is brought about by Section 24(a) of the CLPA. I say this because the subject of limitation periods governing proceedings against the Crown (as well as proceedings by the Crown) is comprehensively dealt with in Section 32 of the Act, and while the pleading of a limitation period is often, in common parlance, referred to as pleading a defence, the word ‘defence’ is capable of an interpretation that is confined to a substantive defence, such as a justification that defeats a claim. [Cites]” [¶ 25]

“In my view, by reason of Section 32 of the CLPA, Section 7(1) of the PAPA applies to this case... I acknowledge that before us the Crown did not rely on Section 7(1) of the PAPA. It relied exclusively on Section 106(1) of the Customs Act. It did, however, plead Section 7(1) of the PAPA in its statement of defence and I do not see how we can ignore it. It takes precedence over any six-year limitation period provided for in Ontario law and the six-year limitation provision provided for in the concluding part of Section 32 can have no application because the causes of action in this case arose entirely in Ontario.” [¶ 30]

Plaintiffs further claimed that Section 106(1) is not germane because Plamondon’s seizure and storage of the aircraft in question was motivated by malice rather than “done in the performance of his duties under [the Customs Act] or any other Act of Parliament.” [¶31]

The Court deems the evidence of Plamondon’s malice laid out in the affidavit of Mr. Williams to be enough to defeat summary judgment. “The [defendants] did not deliver an affidavit of Mr. Plamondon in response to the allegations of malice that are set out in Mr. Williams’ affidavit. This could be regarded as adding strength to the allegations and, at the very least, it is hardly an example of parties to a summary judgment motion putting their best foot forward.”

“In their factum in this court the [plaintiffs] stated as part of the facts that ‘none of the allegations of fact that Mr. Plamondon committed malicious or negligent conduct nor that the Crown failed to store the aircraft properly are disputed in the material before the Court.’ There is no denial of this in the [defendants’] factum.” [¶ 39] “... [B]y reason of the allegation and evidence of malice and intention to injure on the part of Mr. Plamondon, the application of the relevant limitation periods must await a trial.” [¶ 40]

Finally, the Court briefly addresses plaintiffs’ arguments based on the Canadian Bill of Rights, the Canadian Charter of Rights and Freedoms, Sections 7 and 8, and Section 109 of the Courts of Justice Act (CJA). “The amended claim in para. 1(f) appears to raise a claim for damages for breach of Sections 7 and 8 of the Charter. No facts are pleaded to support the claim.”

“Assuming the challenge is to the validity of Section 106 of the Customs Act, there has been no compliance with the mandatory provisions of Section 109 of the CJA. Regardless, Section 7 of the Charter does not apply to the owners of the goods seized ‑‑ the corporate plaintiffs. Section 8 is not engaged unless a privacy right is infringed. Nothing in the material raises a privacy expectation. In this situation, there can be no expectation of privacy in planes imported for leasing‑out. [Cite] Section 8 has no application to a forfeiture order [Cite] and in my opinion, to a seizure. Accordingly there is nothing in the material to suggest a valid Charter damage claim.” [Id.]

Citation: 144096 Canada Ltd. (U.S.A.) v. Attorney General of Canada, 2003 Ont. C. A. Lexis 28 (Ont. Ct. App. Jan. 24, 2003).

EUROPEAN UNION

EU Court of First Instance dismisses action by U.S. and Japanese tobacco companies that had brought “action for annulment” to challenge Commission’s U.S. court action against them; Court notes that an “action for annulment” may only be brought to challenge acts that produce binding legal effects for the parties by bringing about a change in their legal position

In July 2001, the U.S. District Court for the Eastern District of New York dismissed an action brought by the European Community against RJR Nabisco, Inc., and other tobacco-related companies, seeking recovery for lost revenue and Value-Added Tax (VAT) as a result of cigarette smuggling. It was consolidated with an action brought by the government institutions of the Republic of Colombia (the “Amazonas Case”) against major tobacco product manufacturers for conspiracy to smuggle cigarettes in circumvention of revenue laws. Both actions were premised on the Federal Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. Section 1961).

The District Court then granted the defendants’ motion to dismiss the European Community’s case based Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. On March 25, 2002, the European Community filed an appeal before the U.S. Court of Appeals for the Second Circuit.

Subsequently, several of the cigarette companies, including Philipp Morris, Reynolds and Japan Tobacco, brought an action against the Commission of the European Communities before the Court of First Instance of the European Court of Justice. They challenged the Commission’s decisions to bring action in the U.S. against the cigarette companies.

The Commission, in turn, argued that the effect of the contested decisions is not open to challenge as contemplated in the fourth paragraph of Article 230 EC, which provides “[a]ny natural or legal person may ... institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.”

The Court of First Instance held that a decision by the Commission to bring legal proceedings is not an act which may be challenged by an “action for annulment.” Only measures that have binding effects or are capable of affecting the interests of a party can be the subject of such a proceeding. Thus, an “action for annulment” may only be brought to challenge acts that produce binding legal effects for the parties by bringing about a change in their legal position.

Here, the Commission decisions to bring legal action in the U.S. does not by itself alter the legal position at issue. The parties’ obligations can be conclusively established by means of a U.S. court judgment in the action brought by the Commission. Thus, the Commission’s decisions to bring action before U.S. courts are not decisions that can be challenged with an action for annulment. If a U.S. court were to decide the case brought by the European Community, the decision would have a binding effect for the parties to the case. These effects result from the independent exercise of the U.S. courts. Thus, the Commission’s decisions to initiate legal action in the U.S. per se have not produced any binding legal effect.

The Court also notes that this dismissal does not undermine the judicial protections afforded by the European Union (EU) because the cigarette companies are not denied access to European courts. Actions of the European Union that cannot be challenged with an “action for annulment” can nevertheless entail non-contractual liability. Thus, the cigarette companies may be able to bring court action seeking damages in EU courts.

Therefore, the Court of First Instances dismisses the cigarette companies’ action as inadmissible.

Citation: Judgment of the Court of First Instance in Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 (15 January 2003). The judgment is available on the website of the European Court of Justice at “europa.eu.int/cj/”; European Court of Justice, Press and Information Division, Press Release No. 02/03 (15 January 2003); The European Community v. RJR Nabisco, Inc., 150 F.Supp. 2d 456 (E.D.N.Y. 2001).

FOREIGN LAW, PROOF OF

Reviewing convictions for importing lobster tails from Honduras in violation of Lacey Act which bans imports to U.S. in violation of “foreign laws,” Eleventh Circuit rules, as matter of first impression, that where foreign government had affirmed validity of its laws during U.S. prosecutions under Act, its later change of position became immaterial

In early February 1999, the National Marine Fisheries Services (NMFS) received an anonymous facsimile stating that the cargo vessel “M/V Caribbean Clipper” would arrive in Bayou la Batre, Alabama, on February 5, 1999, with “undersized ... lobster tails ... a violation of Honduran law.” The facsimile stated that Honduras bans the bulk export of lobsters, and requires the use of boxes. The Lacy Act bars U.S. imports of “fish or wildlife [that has been] taken, possessed, transported or sold in violation of ... any foreign law.” 16 U.S.C. Section 3372(a)(2)(A).

NMFS’s agents got in touch with the Direccion de Pesca y Acuicultura (DIGEPESCA) (the Honduran Department of Fisheries), asking whether the shipment violated Honduran law. In three separate letters, the fisheries department described Honduran fishing laws and confirmed that the shipment in question breached the Fishing Law, the Industrial and Hygienic Sanitary Inspection Regulation for Fish Products and Resolution No.030-95. The latter provision bars the harvesting and destroying of egg-bearing lobsters.

The department also sent along copies of the laws and offered to aid in any prosecutions under the Lacey Act. Shortly thereafter, NMFS seized the lobster shipment. During later meetings between NMFS special agents and Honduran government officials, the latter often declared that the harvesting and shipment of these lobster tails breaks Honduran law.

In September 2000, a grand jury indicted David Henson McNab, Abner Schoenwetter, Robert Blandford, and Diane Huang (defendants) for conspiracy, smuggling, money laundering, Lacey Act violations, and other offenses having to do with the illegal imports of Caribbean spiny lobsters from Honduras.

To determine the validity of the relevant Honduran laws, the district court conducted a pre-trial hearing on foreign law. There, Liliana Patricia Paz, the highest-ranking legal official in the office of the Secretary-General of the Honduran Ministry, testified about the Honduran laws. Based on her testimony, the district court held that the Honduran provisions were valid predicates for the Lacey Act charges.

The court convicted defendants and they appealed. The defendants argued on appeal, inter alia, that the Honduran wildlife protections at issue took the form of a “regulation” and a “resolution” and thus did not constitute “law” within the meaning of the Act. They also maintained that the applicable Honduran provisions were invalid. In a 2-to-1 vote, however, the U.S. Court of Appeals for the Eleventh Circuit affirms the convictions.

The Court first examines the phrase “any foreign law” in the Lacey Act. The Act declares that it applies to “laws ... which regulate the taking, possession, importation, exportation, transportation, or sale of fish or wildlife or plants.” 16 U.S.C. Section 3371(d). This definition, however, does not specifically refer to regulations and other similar acts. On the other hand, limiting this definition to pure “laws” (meaning statutes) would thwart the purpose of the Act since measures to safeguard fish and wildlife take various legal forms in different legal systems. The Court decides that the disputed term does include foreign regulations and other legally binding provisions designed to protect wildlife.

The Court then turns to the defendants’ argument that the Honduran protective measures were invalid. Oddly enough, the Embassy of Honduras filed an amicus brief in support of one of the defendants. “Our determination of foreign law is complicated by the posttrial shift in the Honduran government’s position regarding the validity of the laws at issue in this case. The Honduran government now maintains that the laws were invalid at the time of the lobster shipments or have been repealed retroactively. Thus, we must decide whether we are free to follow the Honduran government’s original position.”

“... [W]e must make clear that the crux of this case is the validity of the Honduran laws during the time period covered by the indictment. Much of the defendants’ arguments focus upon the fact that none of the laws are currently valid; however, their reliance upon the current invalidity of the laws is misplaced. ‘Although Lacey Act offenses are predicated upon violations of [foreign] law, the statute nowhere states that a viable or prosecutable [foreign law] violation is necessary to support federal charges. Instead, the Act simply requires that the fish or wildlife have been obtained in violation of any [foreign] law ...’ ...”

“The reference to foreign law in the Lacey Act is there to define what constitutes illegal conduct. Thus, the subsequent invalidation of the underlying foreign laws does not does not make the defendants any less culpable for their actions. If the laws were valid in Honduras during the time period covered by the indictment, the defendants violated the Lacey Act by importing the lobsters in violation of those laws. Whatever changes in the laws occurred after the lobsters were imported into the United States illegally have no effect on the defendants’ convictions.” [Slip op. 27-29]

The Court then addresses the effect of the puzzling turnabout by Honduras. “When ... a foreign government changes its original position regarding the validity of its laws after a defendant has been convicted, our courts are not required to revise their prior determinations of foreign law solely upon the basis of the foreign government’s new position. There must be some finality with representations of foreign law by foreign governments. Given the inevitable political changes that take place in foreign governments, if courts were required to maintain compliance with a foreign government’s position, we would be caught up in the endless tasks of redetermining foreign law.” [Slip op. 31]

Here, the Government had asked for, and gotten, the help of the Honduran Ministry during its investigation of the lobster imports. The Honduran government’s later switch does not change the fact that during the prosecution of the Lacey Act violations, it treated the relevant provisions as valid.

Citation: United States v. McNab, 2003 WL 1419848 (11th Cir. March 21, 2003).

HABEAS CORPUS

In upholding jurisdictional dismissals of habeas corpus petitions brought by several groups of alien detainees at Guantanamo Bay Naval Base, District of Columbia Circuit holds that U.S. courts are not open to aliens arrested and confined abroad by U.S. military forces under Supreme Court ruling in Johnson v. Eisentrager

A number of aliens taken into custody abroad during armed conflict in Afghanistan are being held abroad in United States military custody at Camp X-Ray on the Guantanamo Bay Naval Base (GBNB) in Cuba. Through their “next friends,” some of them brought three actions to challenge the legality and conditions of their confinement. The ultimate question presented in each case is whether the district court had jurisdiction to adjudicate their actions on the merits.

In the Al-Odah case, the fathers and brothers of twelve Kuwaiti nationals detained at the GBNB sued the following seven defendants: the United States, the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the Commander of Joint Task Force 160, and the Commandant of Camp X‑Ray/Camp Delta. They alleged that their detainees had been in Afghanistan and Pakistan as humanitarian volunteers and that local villagers turned bounty-hunters laid hands on them and turned them over to U. S. forces. The military sent them to GBNB sometime between January and March 2002.

These plaintiffs called upon the Great Writ, 28 U.S.C. Sections 2241‑2242; the Alien Tort Claims Act, 28 U.S.C. Section 1350; and the Administrative Procedure Act. They claimed denials of due process under the Fifth Amendment, tortious conduct in violation of the law of nations and a treaty of the United States, and arbitrary and unlawful governmental conduct. The court was asked to issue a declaratory judgment and an injunction requiring the authorities to notify them of any charges against them, to allow them to consult with counsel and to have visits from their families.

There are three Rasul plaintiffs who are suing most of the same defendants as above. One is an Australian who was living in Afghanistan when the Northern Alliance captured him in December 2001. Another claims to be a British citizen who had gone to Pakistan for an arranged marriage some time after September 11, 2001. The third detainee was also British and alleged that he had gone to Pakistan after 9/11 to visit relatives and to continue his computer education.

The Rasul petitioners claim to being victimized by violations of due process under the Fifth and Fourteenth Amendments, of international law, and of military regulations; a breach of the War Powers Clause, and a contravention of Article I of the Constitution because of the President’s alleged suspension of the Great Writ. They seek habeas corpus release, an end to unlawful custody, access to counsel, an end to interrogations, and other relief.

In the third case, the wife of a Mr. Habib, an Australian citizen, sought relief similar to what is asked for in the first two cases. Defendants included the President, the Defense Secretary and two senior military officers. The complaint alleged that plaintiff went to Pakistan to find a job for himself and school for his children. After Pakistani authorities arrested him in October 2001, they transferred him to Egyptian authorities who handed him over to the U.S. military who had him brought to GBNB in May 2002. Invoking the provisions listed in the other two cases, he petitioned for release from detention, access to counsel, an end to interrogations and other relief.

The district court held that it lacked jurisdiction. Convinced that no court would have jurisdiction, it dismissed the complaint and the two habeas corpus petitions with prejudice. From the court’s analysis, all of the detainees’ claims went to the lawfulness of their custody and thus were cognizable only in habeas corpus. Relying upon Johnson v. Eisentrager, 339 U.S. 763 (1950), the court held that it did not have jurisdiction to issue writs of habeas corpus for aliens detained outside the sovereign territory of the United States. On plaintiffs’ appeal, the U.S. Court of Appeals for the District of Columbia Circuit affirms.

The Court first sketches the background of recent events. “In response to the attacks of September 11, 2001, and in the exercise of its constitutional powers, Congress authorized the President ‘to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided’ the attacks and recognized the President’s ‘authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.’ Authorization for Use of Military Force, Pub.L. No. 107‑40, 115 Stat. 224, 224 (2001).”

“The President declared a national emergency, Proclamation No. 7453, Declaration of a National Emergency by Reason of Certain Terrorist Attacks, 66 Fed.Reg. 48,199 (Sept. 14, 2001), and, as Commander in Chief, dispatched armed forces to Afghanistan to seek out and subdue the al Qaeda terrorist network and the Taliban regime that had supported and protected it. During the course of the Afghanistan campaign, the United States and its allies captured the aliens whose next friends bring these actions.” [1136]

The Court then quotes a typical denial of being enemy combatants or enemy aliens from the Rasul petition. “The detained petitioners are not, and have never been, members of Al Qaida or any other terrorist group. Prior to their detention, they did not commit any violent act against any American person, nor espouse any violent act against any American person or property. On information and belief, they had no involvement, direct or indirect, in either the terrorist attacks on the United States September 11, 2001, or any act of international terrorism attributed by the United States to al Qaida or any terrorist group.”

The Court then formulates the first issue as whether the Supreme Court’s decision in Johnson v. Eisentrager, which the district court found dispositive, is distinguishable from the present cases on the ground that the prisoners there were “enemy aliens.”

The Eisentrager case arose from the following circumstances. After Germany’s surrender on May 8, 1945, but before Japan had given up, twenty‑one German civilians in China aided Japanese forces fighting against the United States by reporting on American troop movements. The Germans were captured, tried and convicted for breaching the laws of war by an American military commission in Nanking, and confined in the Landsberg prison in Germany, which was then controlled by the U.S. Army.

On behalf of himself and the twenty others, Eisentrager petitioned for writs of habeas corpus in the U.S. District Court for the District of Columbia. He claimed violations of the Constitution, other laws of the United States, and the 1929 Geneva Convention. The district court dismissed for lack of jurisdiction, but the court of appeals reversed.

The instant Court summarizes the Supreme Court’s rationale for agreeing with the district court. “[It] held that ‘the privilege of litigation’ had not been extended to the German prisoners. ... The prisoners therefore had no right to petition for a writ of habeas corpus: ‘these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.’”

“Moreover, ‘trials would hamper the war effort and bring aid and comfort to the enemy.’ Witnesses, including military officials, might have to travel to the United States from overseas. Judicial proceedings would engender a ‘conflict between judicial and military opinion’ and ‘would diminish the prestige of’ any field commander as he was called ‘to account in his own civil courts’ and would ‘divert his efforts and attention from the military offensive abroad to the legal defensive at home.’” [1139]

Apparently, the government had contended that petitioners here were “enemy aliens.” The Court rejects this notion. “[I]t follows that none of the Guantanamo detainees are within the category of ‘enemy aliens,’ at least as Eisentrager used the term. They are nationals of Kuwait, Australia, or the United Kingdom. Our war in response to the attacks of September 11, 2001, obviously is not against these countries. It is against a network of terrorists operating in secret throughout the world and often hiding among civilian populations. An ‘alien friend’ may become an ‘alien enemy’ by taking up arms against the United States, but the cases before us were decided on the pleadings, each of which denied that the detainees had engaged in hostilities against America.” [1140]

“Nonetheless the Guantanamo detainees have much in common with the German prisoners in Eisentrager. They too are aliens, they too were captured during military operations, they were in a foreign country when captured, they are now abroad, they are in the custody of the American military, and they have never had any presence in the United States.” [Id.]

Responding to arguments that many American constitutional guarantees apply globally, the Supreme Court rejected the proposition that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses. “The Court continued: ‘If the Fifth Amendment confers its rights on all the world ... [it] would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could require the American Judiciary to assure them freedoms of speech, press, and assembly as in our First Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.’ The passage of the opinion just quoted may be read to mean that the constitutional rights mentioned are not held by aliens outside the sovereign territory of the United States, regardless of whether they are enemy aliens. That is how later Supreme Court cases have viewed Eisentrager.” [1140-41]

“The consequence is that no court in this country has jurisdiction to grant habeas relief, under 28 U.S.C. Section 2241, to the Guantanamo detainees, even if they have not been adjudicated enemies of the United States. We cannot see why, or how, the writ may be made available to aliens abroad when basic constitutional protections are not. This much is at the heart of Eisentrager. If the Constitution does not entitle the detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty.”

“Eisentrager itself directly tied jurisdiction to the extension of constitutional provisions: ‘in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.’ [Cite] Thus, the ‘privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection.’” [1141]

The detainees next dispute the assumption that they are not confined within any territory over which the U.S. is sovereign. They contend that the U.S., through the military, treats the naval base as a territory and exercises sovereignty over it.

The Court points out, however, that the U.S. has been in possession of the GBNB under an indefinite lease with Cuba originating in 1903 and modified in 1934. Article III of the original Lease declared that: “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba” over the naval base.

The Court rejects detainees’ reading of Eisentrager as using “territorial jurisdiction” and “sovereignty” interchangeably. “When the [Supreme] Court referred to ‘territorial jurisdiction,’ it meant the territorial jurisdiction of the United States courts, as for example in these passages quoted earlier: ‘in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act.’”

“Sovereignty, on the other hand, meant then ‑ and means now ‑ supreme dominion exercised by a nation. The United States has sovereignty over the geographic area of the States and, as the Eisentrager Court recognized, over insular possessions. Guantanamo Bay fits within neither category.” [1143-44]

The Court then dismisses the fact that detainees also sought declaratory judgments and injunctions under the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350. It provides that: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

“The holding in Eisentrager ‑ that ‘the privilege of litigation’ does not extend to aliens in military custody who have no presence in ‘any territory over which the United States is sovereign’ ... - dooms these additional causes of action, even if they deal only with conditions of confinement and do not sound in habeas.” [1144]

“But as we have decided, the detainees are in all relevant respects in the same position as the prisoners in Eisentrager. They cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them. Whatever other relief the detainees seek, their claims necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute, and are therefore beyond the jurisdiction of the federal courts.”

“Nothing in Eisentrager turned on the particular jurisdictional language of any statute; everything turned on the circumstances of those seeking relief, on the authority under which they were held, and on the consequences of opening the courts to them. With respect to the detainees, those circumstances, that authority, and those consequences differ in no material respect from Eisentrager.” [1145]

Citation: Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003).

JUDICIAL ASSISTANCE (CRIMINAL)

As matter of first impression, Eleventh Circuit holds that U.S.-Canadian MLAT permits United States to honor Canadian subpoenas to compel U.S. testimony for use in Canadian criminal investigations prior to filing formal charges although internal Canadian law does not allow compelled testimony at this stage

There is a Treaty Between the United States and Canada on Mutual Legal Assistance in Criminal Matters (March 18, 1985, U.S.-Can., entered into force, January 4, 1990, 24 I.L.M. 1092; see 135 Cong. Rec. 25,644 (October 24, 1989)) (“MLAT”). In Article II, ¶ 1 of the MLAT, the two governments agreed to render mutual legal assistance “in all matters relating to the investigation, prosecution and suppression of offences.”

As the Court describes it: “Under this Treaty, Canada makes a request for assistance by contacting the United States’ ‘Central Authority’ under the Treaty, which is the ‘the Attorney General or officials designed [sic] by him.’ ... If the particular type of assistance requested requires action of a federal district court, the Attorney General and his officials utilize existing statutory authority including 28 U.S.C. Section 1782 to bring an action seeking the requested evidence or information.”

“Because the Attorney General simply utilizes the preexisting statutory authority provided under 28 U.S.C. Section 1782 when satisfying treaty obligations under the MLAT, the Treaty itself is self-executing -- obviating the need for implementing legislation. ... Upon its entry into force in January 4, 1990, the MLAT became a law of this land on par with a federal statute.” [Slip op. 5-6]

In 2000, Canadian authorities tried to subpoena seven individuals living in the Southern District of Florida as part of an ongoing criminal investigation into a smuggling operation. Canada claims that, beginning in 1989, certain individuals have been legally exporting goods to the U.S. and then smuggling them back into Canada without paying Canadian import duties.

Based on the MLAT and 28 U.S.C. Section 1782, the U.S. petitioned the district court in February 2001 for an order appointing an Assistant U.S. Attorney (AUSA) as a “commissioner” to help the Canadian government to obtain evidence located in Florida. The following month, the district court issued the order and the appropriate subpoenas. Upon motion, however, a magistrate judge quashed the subpoenas in the belief that Section 1782 contains an implicit “foreign discoverability” requirement. In the magistrate’s view, Section 1782 does not authorize federal courts to compel such testimony in the U.S. since Canadian authorities cannot domestically compel witnesses to testify at the pre-charge stage.

The U.S., on behalf of the Canadian authorities, appealed. The U.S. Court of Appeals for the Eleventh Circuit vacates and remands with instructions.

As with statutory construction, if the language of a treaty is clear and unambiguous, the Court will apply the words of the treaty as written. If, however, the text of the treaty is ambiguous when read contextually in light of its object and purpose, then it may look to extrinsic sources to clarify the parties’ intent. The Court construes this MLAT to obligate both countries to execute requests to compel testimony in criminal investigations even before the actual initiation of formal charges.

Here, the Court finds that the magistrate judge erred in construing the MLAT to express a clear and unambiguous intent to make assistance requests subject to the limitations of all other substantive law of the U.S., including 28 U.S.C. Section 1782.

“Given the fact ... that Canada lacks the power to compel the taking of testimony in a pre-charge setting, the application of a pre-discoverability requirement to MLAT requests by Canada would deny the court the power to grant Canada the type of assistance sought in this case. But when the entire Treaty is read in context, we conclude that other language in its text, apparently overlooked in the lower court, suggests an alternate, reasonable, construction of the ‘law of the Requested State’ phrases contained in Articles VII and XII of the MLAT.”

“Starting with the Preamble, the MLAT expresses an intent to obligate both countries to provide assistance to each other in criminal matters during both the pre-charge ‘investigation’ and post-charge ‘prosecution’ stages. The Preamble states that the United States and Canada desire ‘to improve the effectiveness of both countries in the investigation, prosecution and suppression of crime through cooperation and mutual assistance in law enforcement matters.’”

“Then, Article II, ¶ 1 states that ‘[t]he Parties shall provide’ such assistance, using language that illustrates the obligatory nature of the assistance even at the investigative stage. Article II, ¶ 2 specifically includes the ‘taking the evidence of persons’ in a list of types of assistance the parties shall provide under the Treaty. Certainly, this language indicates that Canada expects to be able to obtain witness subpoenas and compel the testimony of witnesses during an ongoing criminal investigation. Nothing in Article II limits this exercise or expresses a contrary intent with respect to Canada as opposed to American requests of this type.” [Slip op. 18-20]

Furthermore, as for the foreign-discoverability issue, the Court interprets the phrase “Law of the Requested State”in the MLAT as procedural rather than substantive. “We conclude that ... the Treaty partners intended to utilize the established procedures set forth in the existing laws to execute the treaty requests, rather than to subject each and every treaty request to any and all limitations of existing law of the Requested State.”

“That is, the Treaty utilizes Section 1782 as a procedure for executing requests, but not as a means for deciding whether or not to grant or deny a request so made. This construction is more plausible primarily because of Article V, which delineates only narrowly confined circumstances in which the Requested State ‘may deny assistance.’” [Slip op. 25-26]

The Court also rejects the notion that the Treaty imposes a “dual criminality” requirement, i.e., that the domestic law of both parties must criminalize the activity in question. Article II, ¶ 3, provides that “[a]ssistance shall be provided without regard to whether conduct under investigation or prosecution in the Requesting State constitutes an offence or may be prosecuted by the Requested State.” Thus, the Treaty, for example, enables the U.S. to give and get assistance even for crimes such as money laundering although Canada has not yet enacted legislation similar to the U.S.

Citation: In Re: Commissioner’s Subpoenas, 2003 WL 1645236 (11th Cir. March 31, 2003).

TERRORISM

Second Circuit upholds convictions of alleged mastermind of 1993 World Trade Center bombing over arguments that the U.S. court lacked extraterritorial jurisdiction over his alleged offenses committed outside United States

In 1992, Ramzi Yousef and Ahmad Mohammad Ajaj met at a terrorist training camp on the border between Afghanistan and Pakistan. They entered the U.S. in September of that year. Officers of the Immigration and Naturalization Service (INS) arrested Ajaj at John F. Kennedy Airport when they came across a “terrorist kit” in his luggage. Yousef entered the U.S. with an Iraqi passport and claimed political asylum.

Yousef then assembled a group of co-conspirators and started to make explosives. On February 26, 1993, they drove an explosives-laden van into the World Trade Center garage. At about 12:18 p.m., they detonated it there, killing six people and injuring more than 1,000 others.

Afterwards, Yousef went to the Philippines to keep up his terrorist activities. There he devised a plan to blow up U.S. airliners as they flew across the Pacific. For a “test case,” they placed a bomb on a Philippine airliner, which exploded and killed a Japanese passenger. Philippine fire fighters later uncovered the plot when the bomb-making chemicals in Yousef’s Manila apartment caught fire.

Authorities later caught up with Yousef in Pakistan, and arrested Eyad Ismoil in Jordan. In the separate trials for the conspiracy to blow up U.S. airliners and the bombing of the World Trade Center, the jury found the defendants guilty on all counts. Yousef, Ismoil, and Abdul Hakim Murad appealed. The U.S. Court of Appeals for the Second Circuit, in a lengthy and scholarly opinion, affirms.

Inter alia, defendants contended on appeal that the Government had exceeded its authority by prosecuting him in the U.S. for conspiring to bomb U.S. airplanes in Southeast Asia. The Court disagrees, citing 18 U.S.C. Section 32(a)(1). It prohibits damaging “any aircraft in the special aircraft jurisdiction of the United States,” or “any civil aircraft used, operated or employed in the interstate, overseas, or foreign air commerce.” Thus, the text of the statute shows that Congress intended it to apply extraterritorially. Consequently, the district court made no mistake in exercising jurisdiction here.

As for the charge of placing bombs on U.S. aircraft, Yousef also urged that 18 U.S.C. Section 32(b) provides for jurisdiction over extraterritorial crimes only when “an offender is afterwards found in the United States.” Here, authorities brought Yousef to the U.S. involuntarily and thus he had not been “found in the United States” for purposes of Section 32(b). The Court, however, is not convinced.

“Upon examining the persuasive interpretation by other courts and an identical jurisdictional provision in a related statute, ... as well as the purpose and plain language of 8 U.S.C. Section 32(b), we hold that Yousef was ‘found in the United States’ within the meaning of Section 32(b). In [United States v. Yunis, 288 U.S.App. D.C. 129, 924 F.2d 1086, 1092 (1991)], the United States Court of Appeals for the District of Columbia Circuit had held that jurisdiction existed in a situation similar to Yousef’s. Yunis, who claimed to be a member of Lebanon’s Amal Militia, was indicted for hijacking a Royal Jordanian Airlines flight from Beirut, Lebanon, and destroying it on the ground in Beirut. ...”

“After Yunis was indicted, FBI agents lured Yunis to international waters off the coast of Cyprus, where they arrested him ... Yunis then was brought to the United States, where, in a superseding indictment, he was charged with the additional crime of air piracy ... The Court held that jurisdiction was properly established under the ‘afterwards found in the United States’ language of [the Anti-hijacking Act, 49 U.S.C. App. Section 1472(n)] because by the time Yunis was charged with air piracy, he was already present in the United States and under arrest on other charges. ...” [Slip op. 39-40]

The circumstances of this case are at least as compelling as those in Yunis. Yousef was already under indictment for taking part in the World Trade Center bombing before authorities captured him in Pakistan and returned him to the U.S. While he was awaiting trial in the U.S., a grand jury indicted him on separate charges arising out of the conspiracy to bomb U.S. airliners in the Pacific area. Since Yousef was already in lawful U.S. custody at the time, he was “found in the United States,” making jurisdiction proper under 18 U.S.C. Section 32(b).

The Court finds further support for this view in the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation [Sept. 23, 1971, 24 U.S.T. 565, T.I.A.S. No. 7570, see also S. Rep. No. 98-619 at 3682 (1984), reprinted in 1984 U.S.C.C.A.N. 3682]. “The purpose of the Montreal Convention is to ensure that individuals who attack airlines cannot take refuge in a country because its courts lack jurisdiction over someone who committed such an act against a foreign-flag airline in another nation. ... Accordingly, the Convention requires States parties to adopt legislation to assert jurisdiction over such an offender whenever an offender is ‘present in’ the State and the State does not extradite the offender to another State party. ...”

“Although Section 32 uses the words ‘found in’ instead of ‘present in,’ we agree with the reasoning of the Yunis court that, in enacting the statute to meet its obligations under the Montreal Convention, ‘Congress intended the statutory term ‘found in the United States’ to parallel the [Montreal] Convention’s ‘present in [a contracting state’s] territory,’ a phrase [that] does not indicate the voluntariness limitation urged’ by Yousef. ...”

“Moreover, were we to conclude that the term ‘found in the United States’ did not permit a United States court to assert jurisdiction over someone present in the country involuntarily, Yousef’s extradition to the United States to be prosecuted for the bombing of the World Trade Center – and his resulting detention here – would prevent his prosecution for the later-charged aircraft attacks. Congress could not have intended such an absurd result when it enacted Section 32 (b). Indeed, any other interpretation would contravene the purpose and strain the plain language of Section 32(b), which was adopted pursuant to the United States’ obligations under the Convention.” [Slip Op. 43-44]

Yousef further contests the district court’s finding that it had jurisdiction to try him for the bombing of the Philippine airliner under customary international law based on the “universality” principle. The Court disagrees. “First, irrespective of whether customary international law provides a basis for jurisdiction over Yousef for [these counts], United States law provides a separate and complete basis for jurisdiction over each of these counts and, contrary to Yousef’s assertions, United States law is not subordinate to customary international law or necessarily subordinate to treaty-based international law and, in fact, may conflict with both.”

“Further contrary to Yousef’s claims, customary international law does provide a substantial basis for jurisdiction by the United States over each of these counts, although not (as the District Court held) under the universality principle. We conclude, instead, that jurisdiction [over the Philippine airliner bombing]... was proper, first, under domestic law, 18 U.S.C. Section 32; second, under the aut dedere aut punire (‘extradite or prosecute’) jurisdiction created by the Montreal Convention, as implemented in 18 U.S.C. Section 32 (destruction of aircraft) and 49 U.S.C. Section 46502 (aircraft piracy); and third, under the protective principle of the customary international law of criminal jurisdiction.” [Slip op. 47-48]

Citation: United States v. Yousef, 2003 WL 1786882 (2d Cir. April 4, 2003); see also Washington Post, April 5, 2003, page A8.

U.S. and France sign agreement regarding the sunken vessel “La Belle.” On March 31, 2003, the U.S. and France signed an agreement regarding the wreck of the “La Belle” off the coast of Texas. The “La Belle” was one of the ships of the French explorer Rene-Robert Cavelier, Sieur de La Salle (1643-1687). It sank during Cavelier’s ill-fated attempt to start a colony in the Mississippi River Valley. The expedition had mistakenly landed in Matagorda Bay, near what is now Houston, TX. The “La Belle” is considered one of the most important ship wrecks ever discovered in North America, with one million artifacts representing a kit for building a 17th century European colony in the New World. The excavation is currently being conducted in a cofferdam in Matagorda Bay. - The Agreement was signed by Under-Secretary for Global Affairs Paula J. Dobriansky and French Ambassador Jean-David Levitte. The Agreement reflects the principle of international law that the title to identifiable sunken State vessels remains with the Sovereign unless expressly abandoned. Representatives of the Texas Historical Commission and the French National Marine Museum signed a related Administrative Arrangement. Citation: U.S. Department of State Media Note, April 1, 2003. An article about the explorer Cavelier is available in The Handbook of Texas Online at “www.tsha.utexas.edu”. More information on the “La Belle”-Project is available on the website of the Texas Historical Commission at “www.thc.state.tx.us”.

Because of U.S. Container Security Initiative, EC Commission receives authority to negotiate with U.S. on transport security cooperation. The EU Council of Ministers has given the EC Commission authority to negotiate with the U.S. mutually acceptable customs controls of goods, especially goods transported in containers. After September 11, 2001, the U.S. has started up a program to control the hundreds of thousands of containers that arrive in U.S. ports. Features include international cooperation, voluntary controls by shippers that permit faster processing in U.S. ports, as well as security checks before goods leave a foreign country for shipment to the U.S. This Container Security Initiative (CSI) of the U.S. Customs Service seeks to prevent the use of containers to secretly carry items for terrorist attacks. So far, the U.S. has chosen only a few major European ports to take part in the initiative. The U.S. Bureau of Customs and Border Protection has signed declarations of principle with eight EU Member States (Belgium, France, Germany, Italy, Spain, The Netherlands, the United Kingdom, and Sweden). These will allow the stationing of U.S. Customs officers in the ports of those countries. – The purpose of the Commission’s negotiations will be twofold: [1] to forestall any adverse effects of the U.S. security measures on transatlantic trade, and [2] to standardize security requirements for U.S. and EU shippers. The Commission’s negotiating authority is based on the EC/US customs cooperation agreement of 1997. Citation: European Union in the US News Release No. 20/03 of March 18, 2003. [More information is available on Europa website at “europa.eu.int” on webpage of Customs Union.]

U.S. Trade Representative publishes 2003 Inventory of Foreign Trade Barriers. On April 1, 2003, the U.S. Trade Representative (USTR) released its 2003 inventory of trade barriers, based on the Omnibus Trade and Competitiveness Act of 1988. This annual report documents trade barriers to U.S. exports that exist worldwide. The National Trade Estimate (NTE) Report on Foreign Trade Barriers (FTB’s) chronicles foreign unfair trade practices as well as instances where U.S. trading partners have cut back on, or have gotten rid of, such trade barriers. The NTE covers 56 major trading partners and profiles their trade-restrictive policies. For example, the NTE describes the EU moratorium on the imports of agricultural biotech products in 1998, which has reduced U.S. corn exports to the EU by 55 percent. Citation: Office of United States Trade Representative, press release 2003-21 (April 1, 2003). [The complete NTE is available on website “www.ustr.gov”].