2010 International Law Update, Volume 16, Number 5 (May)
Legal Analyses published by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
BANKRUPTCY
In matter of first impression, Fifth Circuit upholds
denial of recognition of foreign bankruptcy proceeding under Chapter 15 of the
U.S. Bankruptcy Code because debtor has lived in U.S. for more than 10 years
and has no more business activity in foreign country
Zuriel IBR is an Israeli bankruptcy receiver (IBR) in the
matter of Yuval Ran, the alleged debtor (AD). AD had been a prominent Israeli
businessman who was a director or shareholder in almost 100 Israeli companies.
His financial troubles, however, began in the late 1990s. The most significant
one relates to a public company, Credit Lines Supplementary Financial Services
Ltd. (Credit Lines). Credit Lines is the subject of an Israeli liquidation
proceeding, and the IBR has asserted substantial claims against AD. In 1997, an
involuntary bankruptcy proceeding began against AD in the District Court of Tel‑Aviv‑Jaffa.
AD, however, had left Israel and had moved to Houston, Texas, and has done no
business in Israel since his departure.
In 2006, IBR filed a petition under Chapter 15 of the U.S.
Bankruptcy Code (USBC) in the U.S. Bankruptcy Court in Texas. It sought
recognition of the Israeli bankruptcy proceeding as a foreign main or non‑main
proceeding, for the purpose of receiving certain protections under the USBC.
The district court denied the petition for recognition. IBR appealed. The U.S.
Court of Appeals for the Fifth Circuit, however, upholds the ruling below.
"The Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 ("BAPCPA") [Pub.L. 109‑8, 119 Stat. 23,
enacted April 20, 2005] enacted Chapter 15 of the [USC], ‘so as to provide
effective mechanisms for dealing with cases of cross‑border insolvency.' 11
U.S.C. § 1501(a). It replaced former § 304 of the [USBC] and ‘incorporate[s]
the Model Law on Cross‑Border Insolvency' (MLCBI) drafted by, the U.N.
Commission on International Trade Law (UNCITRAL), which in turn, is based upon
the European Union Convention on Insolvency Proceedings (the ‘EUCIP'). See 11
U.S.C. § 1501(a) et seq. ..."
"The statutory intent to conform American law with
international law is explicit in the text of [USBC] § 1501(a). It is also
expressed in § 1508, which states that ‘[i]n interpreting this chapter, the
court shall consider its international origin, and the need to promote an
application of this chapter that is consistent with the application of similar
statutes adopted by foreign jurisdictions,' see also House Report on the
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, H.R. Rep. No.
109‑31, pt. I, at 105 (2005). reprinted in 2005 U.S.C.C.A.N. 88, 169 (‘[Chapter
15] incorporates the Model Law on Cross‑Border Insolvency to encourage
cooperation between the United States and foreign countries with respect to
international national insolvency cases ..."
"A non‑exhaustive list of relief available to a foreign
proceeding's representative in a Chapter 15 case includes: (1) an automatic
stay of actions against the debtor under USBC §362; (2) the ability to operate
the debtor's business; (3) examination of witnesses; and (4) the entrusting of
the administration of the debtor's U.S. assets to the foreign representative.
See generally 11 U.S.C. § 1520(a)(1)‑(3); see also id. § 1519(a)(1)‑(3). In
order for a foreign proceeding to gain recognition within the framework of
Chapter 15, the following prerequisites must be met: (1) such foreign
proceeding for which recognition is sought is a foreign main proceeding or
foreign non‑main proceeding within the meaning of § 1502; (2) the foreign
representative applying for recognition is a person or body; and (3) the
petition meets the requirements of § 1515. 11 U.S.C. § 1517(a) ..."
"This statutory mandate is subject to a narrow ¼
exception which permits a court to refuse recognition ‘if the action would be
manifestly contrary to the public policy of the United States.' 11 U.S.C. §
1506. But, the exception is intended to be invoked only under exceptional
circumstances concerning matters of fundamental importance for the United
States. ... Nevertheless, recognition under § 1517 of the USBC is not a ‘rubber
stamp exercise.' ... Even in the absence of an objection, courts must undertake
their own jurisdictional analysis and grant or deny recognition under Chapter
15 as the facts of each case warrant." [Slip op. 4‑6]
An important issue before the Court is whether the Israeli
proceeding is a foreign main or non‑main proceeding. A foreign main proceeding
is "a foreign proceeding pending in the country where the debtor has the
center of its main interest [COMI]." 11 U.S.C. § 1502(4). Chapter 15
clarifies that, in general, the debtor's registered office or habitual
residence is presumed to be the COMI.
"Thus, to determine where AD's presumptive COMI lies,
we must determine the location of his habitual residence and then determine if
any evidence to the contrary was presented by IBR to rebut the presumption that
AD's habitual residence is his COMI. If so, our inquiry does not end and we
must consider all evidence to determine the location of AD's COMI."
"The USBC does not define ‘habitual residence,' but it
has been analyzed recently by foreign courts as virtually identical to the more
commonly used, at least in the United States, concept of domicile. Under our
law, domicile is established by physical presence in a location coupled with an
intent to remain there indefinitely. Texas v. Florida, 306 U.S. 398 (1939). One
acquires a ‘domicile of origin' at birth, and that domicile continues until a
new one (a ‘domicile of choice') is acquired. ... To defeat the presumption of
continuing domicile and establish a new domicile, an individual must
demonstrate residence in a new state and an intention to remain in that state
indefinitely. ..."
"Similarly, according to foreign courts, the existence
of a habitual residence largely depends on whether the debtor intends to stay
in the location permanently. See, e.g., Pinna v. Caisse d' Allocations
Familiales de la Savoie, [1986] E.C.R. 1 (ECJ 1986). Other factors pertinent to
a finding of an individual's habitual residence include: (1) the length of time
spent in the location; (2) the occupational or familial ties to the area; and
(3) the location of the individual's regular activities, jobs, assets,
investments, clubs, unions, and institutions of which he is a member. ..."
[Slip op. 7‑8]
In this case, AD's habitual residence has been in Houston,
Texas for nearly a decade. His immediately family are U.S. citizens, and AD
himself is a U.S. permanent resident. He is employed in Houston and maintains his
finances exclusively in the U.S. Thus, AD's presumptive COMI is in the U. S.
When there is a dispute as to the debtor's COMI, neither
USBC Chapter 15 nor the MLCBI include the factors for such a determination. In
SPhinX, Ltd., 351 B.R. 103, 120 n.22 (Bankr. S.D.N.Y. 2006), aff'd, 371 B.R. 10
(S.D.N.Y. 2007), however, the Court provided a list of non‑exhaustive factors,
including: (1) the location of the debtor's headquarters, (2) the location of
those who actually manage the debtor, (3) the location of the debtor's primary
assets, (4) the location of the majority of the debtor's creditors/affected
creditors, and (5) the jurisdiction whose law would apply. In the case of an
individual debtor, the factors may be somewhat different. They may also take
into account: (1) the location of the debtor's primary assets, (2) the location
of the majority of the debtor's creditors, and (3) the jurisdiction whose law
would apply to most disputes.
IBR put on evidence suggesting that AD's COMI is in Israel.
These linkages include [1] that AD's creditors are in Israel, [2] that the
principal assets involved in the bankruptcy proceeding are in Israel, and [3]
that AD's bankruptcy proceeding is pending in Israel. IBR's evidence, however,
is not enough to prove by a preponderance of the evidence that Israel is the
location of AD's COMI. IBR additionally argued that a U.S. court should
determine the COMI with reference to the debtor's "operational
history" since the debtor's COMI had been in Israel during the relevant
time.
"We disagree. [...] An analysis of the proper COMI time
frame starts with, as it must, the text of § 1502 of the USBC. ... In the
bankruptcy context, the analysis must end with the text if the language is
clear and does not lead to an absurd result. ... While §1502 does not expressly
discuss a temporal framework for determining COMI, the grammatical tense in
which it is written provides guidance to the court. Every operative verb is
written in the present or present progressive tense.
"More specifically, [USBC] § 1502(4) defines foreign
main proceeding as a ‘foreign proceeding pending in the country where the
debtor has the center of its main interests.' Congress's choice to use the
present tense requires courts to view the COMI determination in the present,
i.e. at the time the petition for recognition was filed. If Congress had, in
fact, intended bankruptcy courts to view the COMI determination through a
lookback period or on a specific past date, it could have easily said so.
..."
"Moreover, examining a debtor's COMI at the time the
petition for recognition is filed fulfills Congress's purpose for implementing
Chapter 15. As noted above, Chapter 15 was implemented by Congress in an
attempt to harmonize transnational insolvency proceedings. If we were to assess
COMI by focusing upon AD's operational history, there would be an increased
likelihood of conflicting COMI determinations, as courts may tend to attach
greater importance to activities in their own countries, or may simply weigh
the evidence differently which may lead to the possibility of competing main
proceedings, thus defeating the purpose of using the COMI construct."
[Slip op. 12‑13]
The Court thus affirms the denial of the recognition of the
Israeli proceeding as a foreign main proceeding. The next question is whether
it qualifies as a foreign non‑main proceeding. While such recognition may
provide the same relief, it is not automatic but determined in the bankruptcy
court's discretion. No U.S. court has yet decided whether an individual's
bankruptcy proceeding pending in another country and related debts alone are
sufficient to constitute an establishment under Chapter 15, § 1502. "A
foreign non‑main proceeding is ‘a foreign proceeding, other than a foreign main
proceeding, pending in a country where the debtor has an establishment.' 11
U.S.C. § 1502(5) (emphasis added). Section 1502(2) defines an establishment as
‘any place of operations where the debtor carries out a nontransitory economic
activity.' Id. § 1502(2) ... In contrast to COMI, ‘[t]he existence of an
establishment is essentially a factual question, with no presumption in its
favor.' ... As one court noted, ‘the bar is rather high' to prove that a debtor
has an establishment in a particular location. ..."
"Similar to a determination of AD's COMI, the relevant
time period to determine whether AD has an establishment in Israel is at the
time IBR filed his petition for recognition. Our conclusion is again supported
by a plain language reading of Chapter 15, which notes that a foreign nonmain
proceeding can exist where a debtor ‘has an establishment.' 11 U.S.C. § 1502(5)
... Likewise, § 1502(2) refers to an establishment as ‘any place of operations
where the debtor carries out a nontransitory activity.' Id. § 1502(2) (emphasis
added). The use of the present tense implies that the court's establishment
analysis should focus on whether the debtor has an establishment in the foreign
country where the bankruptcy is pending at the time the foreign representative
files the petition for recognition under Chapter 15. ..."
"So in order for AD to have an establishment in Israel,
AD must have (1) had a place of operations in Israel and (2) been carrying on
nontransitory economic activity in Israel at the time that IBR brought the
petition for recognition in the United States. Neither Chapter 15 nor its
legislative history explain what it means for a debtor to have ‘any place of
operations' or to have ‘been carrying on nontransitory economic activity' in a
location. See H.R. Rep. No. 109‑31(I), at 107, reprinted in 2005 U.S.C.C.A.N.
at 170 (mentioning only that the definition was taken from Model Law for Cross‑Border
Insolvency Article 2).
The Model Law for Cross‑Border Insolvency (MLCBI), however,
and the sources from which it emanates provide guidance concerning what it
means for a debtor to have an establishment in a location. The drafters of the
MLCBI relied on the EU Convention to define an establishment. See Guide to
Enactment of the UNCITRAL Model Law on Cross‑Border Insolvency § 75 (1997). Per
the EU Convention's legislative history, in order to have a ‘place of
operations' in Israel, AD must have had ‘a place from which economic activities
are exercised on the market (i.e. externally), whether the said activities are
commercial, industrial or professional' at the time that IBR filed the U.S.
petition for recognition. COUNCIL REPORT ON THE CONVENTION ON INSOLVENCY
PROCEEDINGS, at 49, No. 6500/96. The mere presence of assets in a given
location does not, by itself, constitute a place of operation. Id. at 48."
"In the context of corporate debtors, there must be a
place of business for there to be an establishment. ... Equating a
corporation's principal place of business to an individual debtor's primary or
habitual residence, a place of business could conceivably align with the debtor
having a secondary residence or possibly a place of employment in the country
where the receiver claims that he has an establishment. See 11 U.S.C. § 1516(c)
(equating a corporate debtor's registered office with the habitual residence in
the case of an individual). At the time IBR filed his petition for recognition,
AD possessed neither a secondary residence nor place of employment in
Israel." [Slip op. 15‑16].
Citation: In the Matter of: Yuval Ran; Levie v. Ran,
No. 09‑20288 (5th Cir. May 27, 2010).
CHILD ABDUCTION (INTERNATIONAL)
In divided opinion, U.S. Supreme Court holds that ne
exeat right of parent granted by Chilean court conferred "right of
custody" of minor child under Hague Convention on the Civil Aspects of
International Child Abduction to which both U.S. and Chile are parties
Timothy Abbott is a British citizen (father or F) married to
Jacquelyn Abbott (mother or M) who is a U.S. citizen. They separated while
living in Chile in 2003. A Chilean court granted M daily care and control of
their minor son (MS). F received visitation rights to MS based on the Chile
Minors Law 16,618, art. 49. M became concerned that F might take MS to Britain,
and requested a ne exeat order from a Chilean family court. The order barred
anybody from taking the child out of Chile without the court's permission. M,
however, then proceeded to take MS to Texas without F's consent.
In 2006, M filed for divorce from F in Texas. F then filed
this action in a Texas federal court under the Hague Convention on the Civil
Aspects of International Child Abduction (Convention) (October 24, 1980,
T.I.A.S. No. 11670, S. Treaty Doc. No. 99‑11), and the implementing statute,
the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601. The
district court denied relief to F ruling that his ne exeat right does not
constitute a "right of custody." Despite F's appeal, the U.S. Court
of Appeals for the Fifth Circuit affirmed.
The U.S. Supreme Court granted certiorari, and now reverses
and remands, holding 6 to 3 that a parent has a right of custody under the Convention
by reason of that parent's ne exeat right. All parties agree that the
Convention is applicable here. MS is under age 16, and both the U.S. and Chile
are parties to the Convention. The controlling issue, however, is whether M had
wrongfully removed MS from Chile. This turned on whether M ‘s action violated
F's right of custody.
"The Convention recognizes that custody rights can be
decreed jointly or alone, see Art. 3(a), Treaty Doc., at 7; and [F's] joint
right to determine his son's country of residence is best classified as a joint
right of custody, as the Convention defines that term. The Convention defines
‘rights of custody' to ‘include rights relating to the care of the person of
the child and, in particular, the right to determine the child's place of
residence.' Art. 5(a), ibid. [F's] ne exeat right gives him both the joint
‘right to determine the child's place of residence' and joint ‘rights relating
to the care of the person of the child.'"
"[F's] joint right to decide [MS's] country of
residence allows him to ‘determine the child's place of residence.' The phrase
‘place of residence' encompasses the child's country of residence, especially
in light of the Convention's explicit purpose to prevent wrongful removal
across international borders. See Convention Preamble, Treaty Doc., at 7. And
even if ‘place of residence' refers only to the child's street address within a
country, a ne exeat right still entitles [F] to ‘determine' that place.
‘[D]etermine' can mean ‘[t]o fix conclusively or authoritatively,' Webster's
New International Dictionary 711 (2d ed. 1954) (2d definition), but it can also
mean ‘[t]o set bounds or limits to,' ibid. (1st definition), which is what
[F's] ne exeat right allows by ensuring that [MS] cannot live at any street
addresses outside of Chile. It follows that the Convention's protection of a
parent's custodial ‘right to determine the child's place of residence' includes
a ne exeat right."
"[F's] joint right to determine [MS's] country of
residence also gives him ‘rights relating to the care of the person of the
child.' Art. 5(a), Treaty Doc., at 7. ... The Court of Appeals described [F's]
right to take part in making this decision as a mere ‘veto,' ... but even by
that truncated description, the father has an essential role in deciding the
boy's country of residence. ..."
"That a ne exeat right does not fit within traditional
notions of physical custody is beside the point. The Convention defines ‘rights
of custody,' and it is that definition that a court must consult. This uniform,
text‑based approach ensures international consistency in interpreting the
Convention. ..." [Slip op. 11‑12]
"This view is supported by the U.S. Department of
State, whose Amicus Curiae brief notes that ‘the Department of State, whose
Office of Children's Issues serves as the Central Authority for the United
States under the Convention , has long understood the Convention as including
ne exeat rights among the protected ‘rights of custody.'" Furthermore,
courts in various of the contracting states have taken the same view.
Justices Stevens, Thomas and Breyer dissent. The dissenters
note that F cannot chose medical procedures for his son or allow him to play a
videogame. Only M can do so because she has sole custody. Nevertheless, the
majority in essence is returning the MS to F in Chile, who has no legal
authority over the child, simply based on the veto power of ne exeat. Such
return may also be contrary to the child's best interests. The use of the
Convention's return remedy under these circumstances is contrary to the
Convention's text and purpose.
Citation: Abbott v. Abbott, No. 08‑645 (U.S. May 17,
2010).
DIPLOMATIC IMMUNITY
In case of claim of derivative diplomatic immunity,
Maryland Court of Appeals reviews evidence presented by state criminal
defendant as to his father's diplomatic status and finds it insufficient for
immunity under Vienna Convention on Diplomatic Relations; Court notes that
analysis of immunity for U.N. officials requires confirmation through U.S.
Mission to United Nations not through Department of State
Maryland authorities arrested Abdel Khader Diallo
(Defendant), a citizen of the West African country of Burkina Faso, after a
dispute with another man turned into a gunfight. Both men suffered nonfatal
gunshot wounds. Defendant maintained that he enjoyed derivative diplomatic
immunity based on his father's status as a United Nations diplomat. Defendant's
father is apparently the Executive Secretary of the U.N. Convention to Combat
Desertification (UNCCD), based in Bonn, Germany.
Defendant relied on (1) the Vienna Convention on Diplomatic
Relations, 18 Apr. 1961, 23 U.S.T. 3227 (the VCDR); (2) the Convention on
Privileges and Immunities of the United Nations ,13 Feb. 1946, 21 U.S.T. 1418
(the PIUN); and (3) the International Organizations Immunities Act, 22 U.S.C.
§§ 288‑288f (2006); as well as (4) a letter from the UNCCD Chief of
Administration and Finance, explaining that Defendant's father was the Head of
the UNCCD and enjoyed diplomatic immunity during his international travels. The
State of Maryland, however, presented a certification from Holly Coffey, Deputy
Assistant Chief of Protocol of the U.S. Department of State, certifying that
Defendant's father had served as a diplomat until June 1993, and no longer had
diplomatic status.
The Circuit Court of Baltimore County, Maryland, disagreed
with Defendant's claim and he was convicted of first degree assault. In his
motion to reconsider the denial of the motion to dismiss, Defendant argued that
his father was a non‑resident U.N. official, and that this question did not
require resort to the U.S. Department of State. The trial court denied the
motion because it considered the evidence insufficient for derivative
diplomatic immunity through his father.
Defendant appealed to the Court of Special Appeals, which
affirmed the conviction. Defendant then petitioned the Maryland Court of
Appeals (MCA) for a writ of certiorari, which the Court granted. The MCA holds
that Defendant failed to establish that, at the time of the offense and arrest,
he enjoyed derivative diplomatic immunity.
The Court first outlines the applicable legal framework.
"... [D]iplomats enjoy immunity under various international treaties,
including the PIUN and the VCDR. ... According to the U.S. State Department,
‘[t]he purpose of these privileges and immunities is not to benefit individuals
but to ensure the efficient and effective performance of their official
missions on behalf of their governments.' U.S. Department of State, Diplomatic
and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities 2
(1998 rev. ed.) (DCI) See also PIUN, art. V, § 20 ... Generally, the spouse and
other members of the household and the diplomat's staff also enjoy the same
diplomatic immunities and privileges as the diplomat. VCDR art. 37(1); and the
PIUN art. V, § 19."
"The Diplomatic Relations Act of 1978, 22 U.S.C. § 254d
(2006) (DRA) provides in relevant part: ‘Any action or proceeding brought
against an individual who is entitled to immunity with respect to such action
or proceeding under the Vienna Convention on Diplomatic Relations . . ., or
under any other laws extending diplomatic privileges and immunities, shall be
dismissed. Thus, if an individual is entitled to immunity, a court must dismiss
the matter because it lacks subject matter jurisdiction over the defendant. ...
The individual claiming immunity from prosecution bears the burden of showing
that he or she is entitled to immunity. See Burns v. Reed, 500 U.S. 478, 486
... (1991) ..."
"Whether a diplomat is entitled to immunity is
typically a mixed question of law and fact. ... As such, courts ‘review such
questions `under a hybrid standard, applying to the factual portion of each
inquiry the same standard applied to questions of pure fact and examining de
novo the legal conclusions derived from those facts.' ..."
"‘Generally an individual must be accredited by the
State Department as a diplomatic official in order to be entitled to full
diplomatic immunity.' ... Typically, in the more common situation of a diplomat
to a mission of a traditional foreign State (as opposed to an international
organization such as the UN), when a person asserts diplomatic immunity from
prosecution or suit, the law enforcement officer should verify the party's
diplomatic status with the State Department. ..."
"In the situation of a representative of a traditional
foreign State, courts generally give the State Department's certification
substantial deference in its consideration of diplomatic status. ... We,
however, do not review the State Department's conclusions of law with regard to
the interpretation of a statute on a deferential standard. Ascertaining the
diplomatic status, vel non, of an individual claiming diplomatic immunity based
on his or her involvement with the UN, rather than a traditional foreign State,
requires a different and more complex analysis. ..."
"In the case of a UN official, the United Nations is
essentially the receiving State and, as such, the ‘United States has no say or
veto power with respect to such representative of any member state.' United
States v. Fitzpatrick, 214 F. Supp. 425, 433 (S.D.N.Y. 1963). Thus, when a law
enforcement officer encounters a suspect who claims that he or she is a UN
official or claims immunity through such a person, the officer should verify
the diplomatic status of the UN official with the U.S. Mission to the UN.
Diplomatic and Consular Immunity ... Thus, the Coffey certification provided by
the State of Maryland is insufficient in this case." [Slip op. 12‑15]
The Court then reviews the diplomatic status of Defendant's
father. "As a then UN Assistant Secretary‑General, the principal source of
the elder Diallo's immunity was the PIUN. The PIUN grants to the Secretary‑General
and all Assistant Secretaries‑General (and their spouses and minor children)
‘the privileges and immunities, exemptions and facilities accorded to
diplomatic envoys, in accordance with international law.' PIUN art. V, § 19.
The scope of that immunity under ‘international law' is the immunity described
in the VCDR. ..."
"Here, Petitioner argued ... that, pursuant to Article
IV, § 11 of the PIUN, he was entitled to full diplomatic immunity and
privileges. ... That section provides, in pertinent part: ‘Representatives of
Members to the principal and subsidiary organs of the United Nations and to
conferences convened by the United Nations, shall, while exercising their
functions and during their journey to and from the place of meeting, enjoy the
following privileges and immunities:
(a) immunity from personal arrest or detention and from
seizure of their personal baggage, and, in respect of words spoken or written
and all acts done by them in their capacity as representatives, immunity from
legal process of every kind.' PIUN art. IV, § 11. That section [therefore]
limits the official's immunity to ‘functional immunity,' i.e., immunity for
acts exercised in the performance of his or her official duties."
"Under the VCDR, ‘[a] diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State.' Art. 31(1).
Article 39(1) states that ‘[e]very person entitled to privileges and immunities
shall enjoy them from the moment he enters the territory of the receiving State
on proceeding to take up his post. . . .' When that person's diplomatic
functions come to an end in the Receiving State, ‘such privileges and
immunities shall normally cease at the moment when he leaves the country. ...
However, with respect to acts performed by such person in the exercise of his
functions as a member of the mission, immunity shall continue to subsist.'
VCDR, art. 39(2). Article 37(1) of the VCDR provides that ‘[t]he members of the
family of a diplomatic agent forming part of his household shall, if they are
not nationals of the receiving State, enjoy the privileges and immunities
specified in Articles 29‑36.'"
"Accordingly, if the Defendant's father had been
present in the United States at the time the offense occurred or perhaps when
Petitioner was arrested, Defendant may have been entitled to absolute immunity.
If the Defendant's father was (sic) absent, however, he would be entitled at
most only to functional immunity. VCDR , art. 39(2) ..."
"[...] Under the plain language of the DRA, § 254d, if
Petitioner was entitled to diplomatic immunity under the PIUN and the VCDR at
the time the offense occurred or when he was arrested, the trial court should
have dismissed the charges against him. The parties do not dispute that the
elder Diallo must have been present in the United States on the date in
question in order for Petitioner to enjoy derivative immunity from criminal
prosecution. The State argues, however, that Petitioner did not present
sufficient evidence to compel the trial court to conclude that the elder Diallo
was present in the United States on either potentially relevant date. ...
Defendant had merely alleged in his brief that his father was in New York at
the critical time(s) ... Yet, Defendant did not offer to the trial court any
documentary or testimonial proffer of evidence to support the latter assertion
..." [Slip op. 17‑24]
Citation: Khader v. State of Maryland, No. 91,
September Term, 2009 (Court of Appeals of Maryland, May 10, 2010).
TERRORISM
Detainees at U.S. military prison in Afghanistan
challenge their imprisonment by filing habeas corpus petitions in federal
court; U.S. Court of Appeals for D.C. Circuit dismisses the petitions because
habeas does not apply to enemy combatants at Bagram Air Force Base under the
Boumediene factors
Three of the "unlawful enemy combatant" detainees
at the Bagram Air Force Base in Afghanistan filed habeas corpus petitions in
the District of Columbia federal court. Fadi Al‑Maqaleh is a Yemeni citizen who
claims to have been captured outside of Afghanistan. Redha Al‑Najar is Tunisian
citizen allegedly captured in Pakistan, and Amin Al‑Bakri is a Yemeni citizen
allegedly captured in Thailand (Petitioners).
The respondents include the U.S. Secretary of Defense, the
U.S. Department of Defense, and others (jointly "the government").
The court denied the government's motion to dismiss based on Section 7(a) of
the Military Commissions Act of 2006, Pub.L. No. 109‑366, 120 Stat. 2600 (2006)
(MCA), but certified the habeas cases for interlocutory appeal. The U.S. Court
of Appeals for the District of Columbia Circuit holds that the district court
lacked jurisdiction to consider the habeas corpus petitions and orders the
lower court to dismiss the petitions.
The U.S. Supreme Court held in Hamdan v. Rumsfeld, 548 U.S.
557 (2006), that the Detainee Treatment Act of 2005, Pub.L. No. 109‑148, 119
Stat. 2739 (2005) (DTA), did not deprive federal courts of jurisdiction over
the habeas cases from Guantanamo detainees that were pending when the DTA was
enacted. In response to Hamdan, Congress passed the MCA which deprives courts
of jurisdiction over habeas cases brought by "enemy combatants." In
Boumediene v. Bush, 476 F.3d 981 (D.C. Cir 2007), the Court upheld the
constitutionality of the statute. The Supreme Court, however, reversed.
Boumediene v. Bush, 553 U.S. 723 ¼ (2008).
The Supreme Court in Boumediene pointed out that there are
at least three relevant factors in such cases: "The first of the
enumerated factors is ‘the citizenship and status of the detainee and the
adequacy of the process through which that status determination was made.'
Citizenship is, of course, an important factor in determining the
constitutional rights of persons before the court. It is well established that
there are ‘constitutional decisions of [the Supreme] Court expressly according
differing protection to aliens than to citizens.'' ... However, clearly the
alien citizenship of the petitioners in this case does not weigh against their
claim to protection of the right of habeas corpus under the Suspension Clause
[i.e. habeas shall not be suspended unless there is rebellion or invasion]. So
far as citizenship is concerned, they differ in no material respect from the
petitioners at Guantanamo who prevailed in Boumediene. As to status, the
petitioners before us are held as enemy aliens. ... This question is governed
by Boumediene and the status of the petitioners before us again is the same as
the Guantanamo detainees, so this factor supports their argument for the
extension of the availability of the writ."
The second relevant factor is the adequacy of the process
through which that status determination was made. These Petitioners are in a
stronger position for the availability of the writ than were either the
Eisentrager [Johnson v. Eisentrager, 339 U.S. 763 ¼ (1950)] or Boumediene
petitioners. ... Unlike the Boumediene petitioners or those before us, ‘[t]he
Eisentrager petitioners were charged by a bill of particulars that made
detailed factual allegations against them.' ... The Eisentrager detainees were
‘entitled to representation by counsel, allowed to introduce evidence on their
own behalf, and permitted to cross‑examine the prosecution's witnesses' in an
adversarial proceeding. ... The status of the Boumediene petitioners was
determined by Combatant Status Review Tribunals (CSRTs) affording far less
protection. ..."
"The status of the Bagram detainees is determined not
by a CSRT but by an ‘Unlawful Enemy Combatant Review Board' (UECRB). As the
district court correctly noted, proceedings before the UECRB afford even less
protection to the rights of detainees in the determination of status than was
the case with the CSRT. ... Therefore, as the district court noted, ‘while the
important adequacy of process factor strongly supported the extension of the
Suspension Clause and habeas rights in Boumediene, it even more strongly favors
petitioners here.' ... Therefore, examining only the first of the Supreme
Court's three enumerated factors, Petitioners have made a strong argument that
the right to habeas relief and the Suspension Clause apply in Bagram as in
Guantanamo.
"However, we do not stop with the first factor. The
second factor, ‘the nature of the sites where apprehension and then detention
took place,' weighs heavily in favor of the United States. Like all petitioners
in both Eisentrager and Boumediene, the Petitioners here were apprehended
abroad. While this in itself would appear to weigh against the extension of the
writ, it obviously would not be sufficient, otherwise Boumediene would not have
been decided as it was. However, the nature of the place where the detention
takes place weighs more strongly in favor of the position argued by the United
States and against the extension of habeas jurisdiction than was the case in
either Boumediene or Eisentrager."
"In the first place, while de facto sovereignty is not
determinative, for the reasons discussed above, the very fact that it was the
subject of much discussion in Boumediene makes it obvious that it is not
without relevance. ... In Bagram, while the United States has options as to
duration of the lease agreement, there is no indication of any intent to occupy
the base with permanence, nor is there hostility on the part of the ‘host' country.
... While it is certainly realistic to assert that the United States has de
facto sovereignty over Guantanamo, the same simply is not true with respect to
Bagram. Though the site of detention analysis weighs in favor of the United
States and against the Petitioners, it is not determinative."
"But we hold that the third factor, that is ‘the
practical obstacles inherent in resolving the prisoner's entitlement to the
writ,' particularly when considered along with the second factor, weighs
overwhelmingly in favor of the position of the United States. It is undisputed
that Bagram, indeed the entire nation of Afghanistan, remains a theater of war.
... As the Supreme Court recognized in Boumediene, even though the active
hostilities in the European theater had ‘c[o]me to an end,' at the time of the
Eisentrager decision, many of the problems of a theater of war remained
..."
"In ruling for the extension of the writ to Guantanamo,
the Supreme Court expressly noted that ‘[s]imilar threats are not apparent
here.' ... In the case before us, similar, if not greater, threats are indeed
apparent. The United States asserts, and Petitioners cannot credibly dispute,
that all of the attributes of a facility exposed to the vagaries of war are
present in Bagram. The Supreme Court expressly stated in Boumediene that at
Guantanamo, ‘[w]hile obligated to abide by the terms of the lease [from Cuba],
the United States is, for all practical purposes, answerable to no other
sovereign for its acts on the base. Were that not the case, or if the detention
facility were located in an active theater of war, arguments that issuing the
writ would be ‘impractical or anomalous' would have more weight.' ... We
therefore conclude that under both Eisentrager and Boumediene, the writ does
not extend to the Bagram confinement in an active theater of war in a territory
under neither the de facto nor de jure sovereignty of the United States and
within the territory of another de jure sovereign."
"We are supported in this conclusion by the rationale
of Eisentrager, which was not only not overruled, but reinforced by the
language and reasoning just referenced from Boumediene. ¼[W]e set forth more fully
now concerns expressed by the Supreme Court in reaching its decision in
Eisentrager: ‘Such trials would hamper the war effort and bring aid and comfort
to the enemy. They would diminish the prestige of our commanders, not only with
enemies but with wavering neutrals. It would be difficult to devise more
effective fettering of a field commander than to allow the very enemies he is
ordered to reduce to submission to call him to account in his own civil courts
and divert his efforts and attention from the military offensive abroad to the
legal defensive at home. Nor is it unlikely that the result of such enemy
litigiousness would be a conflict between judicial and military opinion highly
comforting to enemies of the United States.' Eisentrager, supra at 779. Those
factors are more relevant to the situation at Bagram ... We cannot, consistent
with Eisentrager as elucidated by Boumediene, hold that the right to the writ
of habeas corpus and the constitutional protections of the Suspension Clause
extend to Bagram detention facility in Afghanistan, and we therefore must reverse
the decision of the district court denying the motion of the United States to
dismiss the petitions." [Slip op. 19‑25].
Citation: Maqaleh v. Gates, No. 09‑5265 (D.C. Cir.
May 21, 2010); The Washington Post, January 8, 2010, page A13.
