2010 International Law Update, Volume 16, Number 11 (November)

2010 International Law Update, Volume 16, Number 11 (November)

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

EVIDENCE RULES IN FOREIGN COURTS

In reviewing conviction of American wife for murdering her American husband while both resided in Hong Kong, its highest court’s main basis for reversing and remanding case for new trial was that trial court had failed to correct final argument of prosecution that jury could consider Victim’s hearsay statements that Defendant was trying to poison Victim as affirmative evidence that she did in fact make such attempts

In 1989, Nancy Kissel (D) married Robert Kissel (V). They lived together in the United States until 1998 when V accepted a position with Goldman Sachs in Hong Kong. Two years later, he joined the Hong Kong office of Merrill Lynch where he earned a seven figure income for about 3 years. Though the Kissels had three children, their marriage had been sliding down hill for some years with alcohol and/or drugs as important factors. On the one hand, V knew that D was taking part in an extramarital fling in Vermont while D became increasingly fed up with V’s too often forcing D [1] to let him have both vaginal and anal sex and [2] to pleasure him with oral sex.

After V’s awkward disappearance for several days, authorities discovered his body wrapped in a carpet and stashed in the family storage area of their apartment complex. The government charged D with killing V with several fatal blows with a heavy metal object in early November of 2003 during a violent exchange that D blames on V’s violent and unnatural sexual demands.

At the trial, the prosecution pictured V as a stable, caring husband who had recently told D that he was in the process of arranging a rational and civilized divorce. On the other hand, D claimed that V was often intoxicated with cocaine and alcohol and was physically and sexually abusive. At trial, the issue boiled down to whether V’s demise involved the premeditated murder of a drugged and defenseless V or was it a matter of self‑defense from an attack by a violent, sexually abusive husband who was holding a baseball bat seemingly bent on beating D with it.

In this appeal, one of D’s claims of error was that the Judge had erred by admitting hearsay evidence. One such witness, W1, was a private investigator whom V had hired to observe D’s extramarital activities in Vermont. V had told W1 that V suspected that D was trying to kill him by poisoning his whisky.

The trial judge considered this to be nothing more than circumstantial evidence of V’s state of mind, that is, of his belief in the precarious state of his marriage to D. It came in as inferentially probative: [1] as to D’s defenses of self‑defense and provocation; and [2] as context for the continual marital strife leading up to the killing of V.

During closing argument, however, the prosecution went much further: it suggested to the jury that they could treat W’s evidence of V’s out‑of‑court statements as substantive proof of the fact that D had in fact been trying to poison V.

In September 2005, after a lengthy and complex jury trial, the jury convicted D of having murdered V on November 2, 2003 and the court sentenced D to life imprisonment. The present appeal to Hong Kong’s highest court is the second appeal of D’s conviction, after one reversal and new trial. The highest court in Hong Kong again reverses D’s conviction.

90. “The next ground of appeal involves D’s complaint that the Judge wrongly permitted two witnesses to testify that V had told each of them that he suspected D of poisoning his whisky and of trying to kill him. Such evidence was hearsay and inadmissible as to the truth of V’s assertions. Moreover, D submits, the fact that V had made such assertions was not admissible for any other purpose, not being relevant to any matter in issue.”

“Even if the fact that V had made such assertions might be in any sense relevant, it was incumbent on the Judge, so it was argued, to have excluded the evidence on the basis that its prejudicial effect far outweighed any probative value it might possess.”

91. “The first witness concerned was Ms. Bryna O’Shea who became V’s confidante in respect of his marital relationship. The [excerpted] passage from her testimony which is the subject of complaint runs as follows: “Q. Did you hear anything about web sites from [V] A. Yes, I did. I heard probably in August, late August, early September [of 2003]. Q. So what about web sites? A. [V] called me one evening at 6 o’clock and I had just gotten home from work and he said, ‘Bryna, get this’, he said, ¼’I found a web site that Nancy went to’ and I was like, ‘Yes?’ And ¼he had told me that it was a web site about, something about drugs, or death, or something dark, that’s all I could remember. He said, ‘Do you think she is trying to kill me?’ ¼ And he said, ‘Seriously, Bryna, if anything happens to me, make sure my kids are taken care of. Make sure the right thing is done with my children.’ ¼ I told my husband the conversation we had and he just thought Rob was imagining things, he said, ‘You know, that has gone on a long time.’”

92. “The other witness was ¼the private detective hired by the deceased to conduct surveillance on [D] regarding her extra‑marital affair in Vermont. The passages in his evidence objected to are as follows: ‘A. Shortly after V’s return to Hong Kong, he called and he expressed concern, he was quite upset, he expressed concern that D was trying to kill him. Q. In what way? ¼ A. V said that when he would return from work in the evening there was a decanter of scotch in his living room or den, and that he would come home and have a sip of scotch and he would feel very—the scotch tasted—did not taste normal to him, but he ... Well, he also said that the effects of the scotch were quite remarkable, it would make him feel very woozy, very disoriented.’”

[The trial judge intervened at this point]. “Before you get to that, Mr Chapman. Members of the jury, this is another area where I’m going to repeat the direction I’ve given you. The oral assertions made by the deceased to Mr. Shea as to this matter, that is to say, that he believed [D] was trying to poison him, perhaps to kill him, and that this was being done through the whiskey that he drank from his decanter, that is not evidence of the truth of those assertions. However, it is evidence that you can take into account in respect of his state of mind in respect of the state of the marriage; that is to say, what he believed the state of the marriage to be. Thank you”

“Q. So, Mr Shea, having heard this, what did you advise V, if anything? A. I was concerned at that point that [V’s] life was in danger and I advised him to go to the police, contact his attorney, have his blood tested and have his urine tested and to get the decanter of scotch and have that tested. ¼ I think from the first day that [V] indicated to me that he thought that his wife was attempting to kill him, that he just couldn’t believe it was going to happen.”

95. “It was not in dispute that reports of communications with [V] were hearsay and were not admissible as evidence of the facts asserted by [V]. Nor was it in dispute that evidence may be given of an out‑of‑court statement where such evidence is adduced to establish, not the truth of the facts stated, but the [relevant circumstantial] fact that the statement was made. It was on this [limited inferential] basis, and not testimonially, that the prosecution sought to adduce such evidence.”

96. “¼[W]hile evidence of an out‑of‑court statement may be admissible as original (and not hearsay) evidence of the state of mind of the maker, its admissibility depends on whether such state of mind is relevant either because it is itself a fact in issue or because it is relevant to establishing a fact in issue. Moreover, it is clear that the court should exercise its discretion to exclude such evidence if its prejudicial effect is out of proportion with its probative value.”

97. “The controversy, then as now, was as to whether the Judge should have treated the requirements of relevance and the discretionary balance as satisfied in relation to the evidence of suspected poisoning. ¼”

124. “[At trial] [t]he Judge repeatedly reminded the jury that evidence of what [V] had told various witnesses, including Ms. [Bryna] O’Shea and Mr. O’Shea, was not evidence of the truth of the deceased’s assertions. However, his directions as to the use that the jury could properly make of the evidence were very brief. ¼ [As one further example]: He gave them no instructions regarding [Bryna’s] evidence that [V] had asked whether she thought [D] was trying to kill him or, that after laughing off that suggestion, [V] had added: ‘Seriously, Bryna, if anything happens to me, make sure my kids are taken care of. Make sure the right thing is done with my children.’”

127. “The Judge’s direction to the jury as to the relevance of the impugned evidence was therefore confined to telling them that they could regard it as [circumstantially] relevant to [V’s] belief as to the state of the marriage and the steps he took in relation to the marriage in that belief. In other words, his direction attributed a probative value which we have described as being of marginal significance in the context of ample non‑prejudicial evidence available concerning the state of the marriage¼.”

128. “More damagingly, the material error was compounded at the trial by the prosecution’s closing [jury] speech. Counsel for the prosecution ¼stated: ‘Now, you’ll also recall that about this time an exchange occurred between Bryna O’Shea and [V] ¼ And in that conversation, Bryna, when she’d heard certain observations by [V] about his concerns said, half‑jokingly to him, ‘If she’s trying to kill you, put me in your will.’ ¼ And half‑jokingly, she said, but how prophetic it turned out to be . ¼ [V] would later enter a phase of denial and inaction over his concerns and that feeling of guilt over his suspicions of [D], would ultimately mean he took no steps [to have his drinks tested etc.] as recommended by Frank Shea. And those failures, that inaction, it appears, would contribute to, or ultimately cost him his life . (Emphasis added.)”

129. “In our view, those passages constituted a wholly impermissible invitation to the jury to treat [V’s] hearsay statements as evidence of the truth of the facts asserted by him. In inviting them to consider ‘how prophetic’ his stated suspicion that [D] was trying to kill him was, the prosecution was suggesting that his suspicion was well founded. More importantly, the prosecution expressly invited the jury to treat the evidence of Ms. O’Shea and Mr. Shea—which was plainly hearsay evidence of what [V] had told them—as demonstrating that by September, [D] had in fact been poisoning ]V]. Counsel went so far as to suggest to the jury that there was a causal link between such earlier poisoning and [V’s] ultimately losing his life because of his inaction based on feelings of guilt about having harboured suspicions concerning his wife’s intentions.”

130. “That submission was grossly prejudicial and quite improper. It went far beyond the prosecution’s avowed basis for adducing the evidence and overstepped the [trial] Judge’s ruling as to the limited purposes for which it would be allowed in. It contradicted the express directions repeatedly given by the Judge to the jury. Unfortunately, the Judge did not intervene to counteract that submission. He did not instruct the jury to reject the prosecution’s invitation to make such grossly impermissible use of the evidence.”

“He confined himself to repeating his general injunction against treating the hearsay evidence of those two witnesses as evidence of the truth of [V’s] assertions. In the context, such a direction was insufficient. [the prosecution] fairly accepted that [it’s] remarks set out above were inappropriate although he endeavoured to argue that the warnings against treating hearsay as evidence of the facts asserted were sufficient. We do not agree.” Whereupon, the Court remanded the case for a new trial.

Citation: Kissel v. Hong Kong Special Administrative Region (HKSAR); [2010] Hong Kong Law Reports & Digest 435; [2010] Hong Kong Exchanges & Clearing Ltd. 209 (February 11, 2010).

COMBAT DAMAGES AS COMPENSABLE TAKINGS

Where Iraqi Plaintiff seeks U.S. compensation for property damage during U.S. military occupation of home in Battle of Fallujah, U.S. Court of Federal Claims dismisses [1] for lack of subject matter jurisdiction because property damage occurred during hostile action; Court also rejects novel theories [2] that U.S. is liable based on its effective exercise of sovereignty over Iraq, and [3] that Plaintiff has pleaded facts showing contractual duty to repay

The unidentified Plaintiff in the following case claims to have lost property in the Battle of Fallujah, Iraq. In 2004, during Operation Iraqi Freedom, a multinational force launched an offensive to regain the city of Fallujah, Iraq, after insurgents had moved in. The case represents a novel takings issue: whether an Iraqi citizen can maintain a Fifth Amendment takings claim for the occupation of his home by the U.S. military during the Battle of Fallujah.

As the Court of Federal Claims explains, this issue requires [1] a determination as to whether the military necessity doctrine precludes applying the Fifth Amendment’s property provisions to a military occupation during wartime and, if not, [2] whether Plaintiff can establish the requisite substantial connections with the U.S. Such substantial connections with the U.S. are prerequisite for a non‑resident alien to have standing when extraterritorial property is taken; and, if that is done [3] whether Plaintiff can bring a claim in federal court for inverse condemnation.

Plaintiff first filed a claim for damages before the Foreign Claims Commission of the U.S. Marine Corps (USMC) Multi‑National Forces‑West for Iraq’s Al Anbar Province (the “Commission”). A Commission member told Plaintiff that there was no evidence that U.S. forces had destroyed his home, and offered $5,000 compensation for the razing of Plaintiff’s wall and $1,500 for the 3 days that U.S. military forces had occupied his home.

Plaintiff turned down the offer and sued in the U.S. Court of Federal Claims (CFC). He alleged that representatives of the U.S. armed forces had gotten in touch with him and asked to use his home and associated property during military operations in Fallujah. Plaintiff received a Memorandum from the U.S. Marine Corps stating that “the Coalition Forces are occupying your house and property without your consent. The Coalition Forces are in your home due to military necessity. We intend to fair and compensate you for any damages and inconvenience caused by our occupation.”

During the occupation, the wall surrounding Plaintiff’s home was razed. No sooner had the military forces left, unknown persons had looted and destroyed his home. Plaintiff claims that the military forces’ actions constituted a “taking of property without either due process or fair compensation and a breach of the express or implied‑in‑fact contract made by and between the United States and Plaintiff.” The U.S. moved to dismiss [1] for lack of subject matter jurisdiction and [2] for failure to state a claim for relief.

In its motion to dismiss, the U.S. argues [1] that the Court lacks jurisdiction because losses in combat zones during military conflicts are not justiciable; [2] that Plaintiff fails to show the requisite connections to the U.S. for a non‑resident alien to file an extraterritorial takings claim; [3] that the Complaint fails to state a viable claim for inverse condemnation because the insurgents in fact were the ones who caused the destruction of the property; and [4] that Plaintiff failed to allege the elements of an express or implied‑in‑fact contract with the U.S. regarding payment for damages to Plaintiff’s house.

The CFC grants the U.S.’ motion to dismiss for lack of subject matter jurisdiction. “‘In his amended complaint and response to Defendant’s renewed motion to dismiss, ¼ Plaintiff [creatively] asserts that ‘at the time of the alleged taking, the Government of Iraq had ceased to exist as a sovereign entity.’ ... Iraqi sovereignty instead was vested in the U.S. through the exercise of sovereign authority ‘within the territory of Iraq’ by the Coalition Provisional Authority (CPA), ‘a subsidiary entity of the U.S. Department of Defense.’ ...”

“Because fundamental constitutional rights, including the U.S. Constitution’s Fifth Amendment’s just compensation clause, are ‘guaranteed to inhabitants of those territories that are not destined for statehood but in which the U.S. exercises sovereign power,’ i.e., unincorporated territories of the U.S., Plaintiff has standing to bring a takings claim. ... Further, Plaintiff alleges a substantial connection with the U.S. because of the ‘unique relationship’ created between the U. S and Iraq when the ‘U.S. (acting pursuant to a U. N. mandate) voluntarily created a relationship with the people of Iraq that exceeded in both nature and degree the relationship normally taken with a ‘foreign’ country.’” [Slip op. 6]

“In its motion to dismiss, the U.S. argues [1] that the CFC lacks jurisdiction because losses in combat zones during military conflicts are not justiciable; (2) that Plaintiff fails to show the requisite connections to the U.S. for a non‑resident alien to present an extraterritorial takings claim; (3) that the Complaint fails to state a viable claim for inverse condemnation because the insurgents in fact caused the destruction of the property; and (4) that Plaintiff failed to allege the elements of an express or implied‑in‑fact contract with the U.S. regarding the house.”

The Court then turns to the issue of jurisdiction. “Not all takings claims are cognizable under the Fifth Amendment. In the case of enemy property destroyed by the military, the enemy property doctrine provides that the ‘U.S. does not have to answer under the Takings Clause for the destruction of enemy property or...‘enemy war‑making instrumentalities.’...”

“More broadly, the U.S. Supreme Court counsels that, for losses that occur in wartime or during periods of armed conflict, ‘many [of them] must be attributed solely to the fortunes of war, not to the sovereign.’ U.S. v. Caltex (Phil.), Inc., 344 U.S. 149, 155‑56 (1952) (takings claim not cognizable for oil facilities destroyed by U.S. forces in face of Japanese advance upon Manila) ...”

“This is [so] because the ‘terse language of the Fifth Amendment is no comprehensive promise that the U.S. will make whole all who suffer from every ravage and burden of war.’ Caltex supra at 155. Thus, under the military necessity doctrine, ‘civilian property destroyed or expropriated because of the exigencies of military action, falls outside the Fifth Amendment.’ El‑Shifa Pharm. Indus. Co. v. U.S., 55 Fed. Cl. 751, 765 (2003) (holding that takings clause ‘does not apply to the destruction of property during combat operations’), aff’d, 378 F.3d 1346 (Fed. Cir. 2004) ...”

“However, not all military conduct is shielded from the takings clause’s reach. Indeed, the ¼ the Federal Circuit cautions that the Government may not avoid liability under the takings clause ‘by simply using its military forces as cover for activities that would otherwise be actionable if performed by one of its civilian agencies. Military conduct that does not touch on the destruction or appropriation of enemy property can sometimes give rise to a valid takings claim.’ [El‑Shifa Pharm. supra at 1356] ... (domestic military aircraft overflights constitute compensable takings claim)). Thus, military conduct can give rise to a compensable takings claim when the military has exercised the Government’s civil eminent domain authority. ...”

“In determining whether a military takings claim is compensable under the Fifth Amendment, ‘[n]o rigid rules can be laid down to distinguish compensable losses from noncompensable losses. Each case must be judged on its own facts.’ Caltex (Phil.), supra at 156. The enemy property doctrine tasks the court with ‘ascertain[ing] the precise point at which the military conduct complained of is no longer coextensive with the state’s civil power of eminent domain, but rather, enters the zone of conduct, outside the reach of the Takings Clause, where the U.S. appropriates the property of its enemies.’ El‑Shifa, supra at 156.”

“Similarly, when considering the claim through the lens of the military necessity doctrine, the court is guided by precedent that has drawn ‘a thin line... between sovereign immunity and governmental liability.’ ... While the line shielding the Government from liability is thin, precedent from the CFC holds that, under the military necessity doctrine, ‘the sovereign is immune from liability for confiscation of private property taken by [the military], through destruction or otherwise, to prevent it from falling into enemy hands, or to protect the health of troops, or as an incidental element of defense against hostile attack and is not compensable under the Fifth Amendment.’ ...” [Slip op. 10‑11]

“The Court rejects Plaintiff’s argument that the fact that the Commission considered Plaintiff’s claim constitutes an admission that the destruction of the property was caused by U.S. forces. The Foreign Claims Act, 10 U.S.C. 2734 (2006) (FCA) is a grant of discretionary authority to the Executive. The Commission’s investigation does not amount to adversarial litigation that implicates the doctrine of collateral estoppel.”

The Court then considers Plaintiff’s interpretation of the “military necessity” doctrine—that military conduct that is not incident to combat activities by U.S. forces or that is not related to destruction or appropriate of enemy property can give rise to a takings claim. It is unclear whether precedents have clearly addressed this issue. After the Court has reviewed various precedents, it concludes that Plaintiff’s claim does not constitute a compensable taking under the Fifth Amendment.

“... Indeed, the record discloses ample evidence for the court to find that U.S. military forces occupied Plaintiff’s house, if not during actual combat, at least during an overall period of violent hostilities against Coalition Forces, and therefore cannot be the basis of a cognizable taking under the Fifth Amendment. When deciding a 12(b)(1) motion, the court may consider evidentiary matters outside the pleadings, and the Gillette Declaration and Forkin Declaration are relevant, competent evidence characterizing the military situation.”

“Specifically, the declarations show that, beginning in March 2004, ‘hardcore groups of insurgents’ began to overrun Fallujah, and they engaged in violent attacks against Coalition Forces ‘throughout the entire city and surrounding area.’ ... During the ensuing battle to regain control of the city, USMC forces were engaged in urban combat, including ‘house to house fighting,’ described as ‘some of the heaviest city fighting in U.S. Marine Corps history.’ ... Due to military necessity, Coalition Forces temporarily would occupy buildings in and around the city. ...”

“ ... [T]he Marines in Fallujah were confronted ‘with a large and hostile force under conditions presenting immediate danger to them.’ ... The existence of a military necessity is not a matter of exigent circumstances, contrary to Plaintiff’s assertions. ... [C]rowds need not be banging‑down the castle door for the necessity to present itself. ... In the urban combat situation confronting USMC forces at Fallujah, insurgents were not located in one isolated area, but were dispersed into groups throughout the city.”

“Insurgents used public buildings and private homes to store improvised explosive devises (IEDs) and set booby traps. ... The Marines who occupied Plaintiff’s home were not required to be engaged in an actual fire‑fight for the court to find that their occupation was done ‘as an incidental element of defense against hostile attack.’ ... Moreover, the evident necessity justifying the razing of Plaintiff’s wall was pleaded to (sic) in Plaintiff’s amended complaint: ‘The reason given for such destruction was military necessity (i.e., to diminish the probability of insurgents using the wall as cover to fire on Coalition Forces).’ ...”

“Were the court to adopt plaintiff’s theory, it must conclude that, at the time Coalition Forces occupied Plaintiff’s property, they were exercising the Government’s civil eminent domain authority. As explained by the Federal Circuit in El‑Shifa, compensable military takings under the Fifth Amendment occur when ‘the military merely carries out the sovereign’s eminent domain prerogative,’ ... whereas when a military taking occurs pursuant to the exercise of the sovereign’s ‘war‑making functions,’ the sovereign is immune from liability and the claim is not cognizable under the Fifth Amendment, .... The conclusion that Coalition Forces were exercising the Government’s civil eminent domain authority by occupying [and damaging] plaintiff’s property ¼ strikes this court as absurd in the extreme. There comes a point in law when creativity and persistence in legal advocacy must give way to common sense.”

“... Consequently, Plaintiff’s takings claim is not cognizable under the Fifth Amendment. Plaintiff’s claim for compensation due to the destruction of his home subsequent to its abandonment by Coalition Forces also is not cognizable. ... The unfortunate loss of plaintiff’s house is yet another addition to the long, sad catalog of wartime property losses that ‘must be attributed solely to the fortunes of war, and not to the sovereign.’ Caltex (Phil.), supra at 155‑56.” [Slip op. 25‑26]

“The Court also addresses the U.S.’s alternative challenge to Plaintiff’s standing in this case: a foreign national cannot bring a takings claim for property located abroad unless he demonstrates a substantial connection to the U.S. ¼ Plaintiff, however, fails to cite a single case where the U.S. acquires sovereignty over a country simply by having military forces occupy it. Furthermore, sovereignty over a territory of the U.S. is [sic] function given exclusively to Congress [Cite].”

The Court then considers Plaintiff’s contract claims. Plaintiff allegedly had meetings with U.S. government agents seeking his assistance. The U.S. agents allegedly promised compensation if Plaintiff supported them through clandestine activities akin to espionage. Such claims are barred under Totten v. United States, 92 U.S. 105 (1875).

Plaintiff’s other contract claims also fail. “The court concludes that the amended complaint fails to state a claim for an express or implied‑in‑fact contract on the alternative ground that the complaint fails to allege facts tending to show sufficiently definite terms or the existence of consideration. ... Vague promises of future compensation of an amount to be determined unilaterally by the U.S. do not constitute bargained‑for consideration ...”

“In addition, Plaintiff’s allegation that the contract specified only that plaintiff would be ‘compensated’ does not meet the pleading requirement of definite terms. ¼As pled, the terms of the alleged contract are insufficiently definite as to whether the Government breached its promise or, in the event the court found a breach, to fashion an adequate remedy. In short, Plaintiff has not pled [the existence of a valid] contract.” [Slip op. 53‑54].

Citation: Doe v. United States, 95 Fed. Cl. 546 (U.S. Ct. Fed. Claims, 2010).

INTERNATIONAL TERRORISM

In case where evidence that Guantanamo Bay detainee was active part of al‑Qaida at time of arrest was thin, District of Columbia Circuit vacates grant of habeas corpus for district court to conduct additional fact finding in light of intervening District of Columbia circuit precedents on sufficiency of evidence that petitioner was active agent of al‑Qaida

The U.S. has detained Mohammedou Ould Salahi at Guantanamo Bay since 2002. He was born in Mauritania and in 1990 went to Afghanistan to join the mujahedeen in their efforts to overthrow the Soviet‑supported Communist government. He attended a training camp run by al‑Qaida, swore allegiance (bayat), but alleged (sic) severed all ties with al‑Qaida in 1992. In 2004, Salahi appeared before a Combatant Status Review Tribunal (CSRT), which considered him lawfully detained. Salahi filed the present habeas petition n the federal District Court for the District of Columbia.

The U.S. put on evidence that Salahi allegedly encouraged three of the September 11, 2001, attackers to travel to Afghanistan to link up with al‑Qaida. Also, one of Salahi’s cousins was a spiritual adviser to Usama bin Laden and a high‑ranking leader of al‑Qaida. The District Court granted Salahi’s habeas petition because it concluded that Salahi was an al‑Qaida sympathizer but not an active part of al‑Qaida.

The U.S. Court of Appeals for the District of Columbia Circuit vacates the district court judgment and remands for the district court to resolve key factual questions so that the courts can decide whether—as a matter of law—Salahi was part of al‑Qaida at the time of his capture. The particular issue in this case is that the U.S. is seeking Salahi’s detention because he associated with al‑Qaida. There is no evidence, however, that Salahi was an active member of al‑Qaida at the time of his capture.

“... Salahi’s March 1991 oath of bayat is insufficiently probative of his relationship with al‑Qaida at the time of his capture in November 2001 to justify shifting the burden to him to prove that he disassociated from the organization. In so concluding, we have no doubt about the relevance of Salahi’s oath to the ultimate question of whether he was ‘part of’ al‑Qaida at the time of his capture. We conclude only that given the facts of this particular case, Salahi’s oath does not [alone] warrant shifting the burden of proof.”

“The government next challenges the district court’s use of the ‘command structure’ test ‑ a standard that district judges in this circuit, operating without any meaningful guidance from Congress, developed to determine whether a Guantanamo habeas petitioner was ‘part of’ al‑Qaida. See Hamlily v. Obama, 616 F.Supp.2d 63, 75 (D.D.C. 2009) ... As applied by the district court in this case, the command‑structure test required the government to prove that Salahi ‘receive[d] and execute[d] orders or directions’ from al‑Qaida operatives after 1992 when, according to Salahi, he severed ties with the organization. ... Having found no such evidence, the court concluded that Salahi was not ‘part of’ al‑Qaida at the time of his capture. ...”

“As the government points out, the district court’s approach is inconsistent with our recent decisions in [Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010)] and [Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010)], which were issued after the district court granted Salahi’s habeas petition. These decisions make clear that the determination of whether an individual is ‘part of’ al‑Qaida ‘must be made on a case‑by‑case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization.’ Bensayah, supra at 725.”

“Evidence that an individual operated within al‑Qaida’s command structure is ‘sufficient but is not necessary to show he is ‘part of’ the organization.’ Id. ... For example, since petitioner in Awad joined and was accepted by al‑Qaida fighters who were engaged in hostilities against Afghan and allied forces, he could properly be considered ‘part of’ al‑Qaida even if he never formally received or executed any orders. ...”

“As we explained in Bensayah, supra, at 725 however, ‘the purely independent conduct of a freelancer is not enough’ to establish that an individual is ‘part of’ al‑Qaida. Thus, as government counsel conceded at oral argument, the government’s failure to prove that an individual was acting under orders from al‑Qaida may be relevant to the question of whether the individual was ‘part of’ the organization when captured. ... Consider this very case. Unlike petitioner in Awad, who affiliated with al‑Qaida fighters engaged in active hostilities against U.S. allies in Afghanistan, Salahi is not accused of participating in military action against the United States. Instead, the government claims that Salahi was ‘part of’ al‑Qaida because he swore bayat and thereafter provided various services to the organization, including recruiting, hosting leaders, transferring money, etc.’

“Under these circumstances, whether Salahi performed such services pursuant to al‑Qaida orders may well be relevant to determining if he was ‘part of’ al‑Qaida or was instead engaged in the ‘purely independent conduct of a freelancer.’ Bensayah, supra at 725. The problem with the district court’s decision is that it treats the absence of evidence that Salahi received and executed orders as dispositive. ... The decision therefore cannot survive Awad and Bensayah.”

“The government urges us to reverse and direct the district court to deny Salahi’s habeas petition. Although we agree that Awad and Bensayah require that we vacate the district court’s judgment, we think the better course is to remand for further proceedings consistent with those opinions. Because the district court, lacking the guidance of these later decisions, looked primarily for evidence that Salahi participated in al‑Qaida’s command structure, it did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in fact ‘part of’ al‑Qaida when captured. ...”

“[Important issues remain]. For example, does the government’s evidence support the inference that—even if Salahi was not acting under express orders—he nonetheless had a tacit understanding with al‑Qaida operatives that he would refer prospective jihadists to the organization?’ ... Has the government presented sufficient evidence for the court to make findings regarding what Salahi said to bin al‑Shibh during their ‘discussion of jihad and Afghanistan?’ ... Did al‑Qaida operatives ask Salahi to assist the organization with telecommunications projects in Sudan, Afghanistan, or Pakistan?’ ... Did Salahi provide any assistance to al‑Qaida in planning denial‑of‑service computer attacks, even if those attacks never came to fruition?’ ... May the court infer from Salahi’s numerous ties to known al‑Qaida operatives that he remained a trusted member of the organization?’ ... With answers to questions like these, which may require additional testimony, the district court will be able to determine in the first instance whether Salahi was or was not ‘sufficiently involved with [al‑Qaida] to be deemed part of it.’ ...”

“... A final note: since we are remanding for further factual findings, we think it appropriate to reiterate this Court’s admonition in [Al‑Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010)], also decided—after the district court issued its decision in this case—that a court considering a Guantanamo detainee’s habeas petition must view the evidence collectively rather than in isolation. Id at 1105‑06. Merely because a particular piece of evidence is insufficient, standing alone, to prove a particular point does not mean that the evidence ‘may be tossed aside and the next [piece of evidence] may be evaluated as if the first did not exist.’ Id. at 1105. The evidence must be considered in its entirety in determining whether the government has satisfied its burden of proof.” [751‑3]

Citation: Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010).

WORLD TRADE ORGANIZATION (WTO)

WTO Dispute Settlement Panel issues mixed report in United States‑China dispute over United States anti‑dumping and countervailing duties on Chinese steel pipes, off‑road tires, rectangular pipes and tubes and laminated woven sacks

A Dispute Settlement Panel [DSP] of the World Trade Organization (WTO) issued its Report in the dispute United States of America—Definitive Anti‑Dumping and Countervailing Duties on Certain Products from China (DS379). The dispute began in September 2008 when China requested consultations with the U.S. regarding U.S. anti‑dumping (AD) duties and countervailing (CWD) duties on the following Chinese products: (1) circular welded carbon steel pipe (CWP); (2) pneumatic off‑the‑road tires (OTR); (3) light‑walled rectangular pipe and tube (LWR); and (4) laminated woven sacks (LWS).

The consultations failed in November 2008, and China requested the WTO to establish a Panel to resolve the dispute. In particular, China claimed that the investigations and determinations of the U.S. Department of Commerce (DOC) were inconsistent with trading rules.

As for CWP, the DOC had determined that the Chinese government provided hot‑rolled steel to producers through state‑owned enterprises (SOEs) which resulted in subsidies. Also, the DOC found that private trading companies bought hot‑rolled steel from state‑owned companies, which resulted in countervailable subsidies. According to the investigation, China also provided subsidies in the form of preferential loans through state‑owned commercial banks (SOCBs). The DOC investigations of the other products at issue led to similar results.

The Panel concludes that: (a) in respect of China’s claims concerning the DOC’s determinations of financial contributions in the countervailing duty investigations at issue, that:

(I) the DOC acted consistently with trading rules in determining—in the relevant investigations—that SOEs and SOCBs constituted “public bodies”;

(ii) the DOC acted consistently with trading rules by failing to determine, in the LWR, CWP, and OTR investigations, that trading companies were “entrusted” or “directed” by the government to make financial contributions to producers of the investigated products, in the form of the provision of goods;

(b) in respect of China’s claims concerning the DOC’s specificity determinations in the countervailing duty investigations at issue, that:

(I) the DOC acted consistently with trading rules by determining in the OTR investigation that lending by SOCBs to the OTR tire industry was de jure specific;

(ii) the DOC acted inconsistently by determining that the government provision of land‑use rights, in the LWS investigation, was regionally specific;

(c) in respect of China’s claims concerning the DOC’s benefit determinations in the countervailing duty investigations at issue, that:

(I) the DOC acted consistently with trading rules by failing to conduct a pass‑through analysis in the OTR investigation to determine whether any subsidy benefits received by trading companies selling rubber inputs were passed through to the OTR producers purchasing those inputs;

(ii) the DOC acted inconsistently by failing to ensure in the OTR investigation that the methodology it used to establish the existence and amount of benefit to tire producers from their purchases of SOE‑produced inputs from trading companies did not calculate a benefit amount in excess of that conferred by the government provision of those inputs; [...]

(iv) China failed to show that the DOC had acted inconsistently with the obligations of the U.S. by not “offsetting” positive benefit amounts with “negative” benefit amounts, either across different kinds of rubber or across different months of the period of investigation, in the OTR investigation; [...]

(vi) China did not prove that the DOC acted inconsistently with the obligations of the United States by rejecting in‑country private prices in China as benchmarks for HRS in the CWP and LWR investigations and for certain polypropylene in the LWS investigation;

(vii) China did not establish that the DOC acted inconsistently with the obligations of the U.S. by rejecting interest rates in China as benchmarks for calculating the benefit from Chinese currency loans from SOCBs, in the CWP, LWS and OTR investigations, or that the benchmarks actually used in respect of the loans were inconsistent with those obligations;

(viii) the DOC acted inconsistently with the obligations of the U.S. by using average annual interest rates as benchmarks for one of the Chinese producer’s U.S. dollar‑denominated loans from SOCBs in the OTR investigation;

(ix) China did not establish that the DOC acted inconsistently with the obligations of the U.S. by rejecting land‑use prices in China as benchmarks for government‑provided land‑use rights in the LWS and OTR investigations, or that the benchmarks actually used were inconsistent with those obligations; [...]

To the extent that the U.S. has acted inconsistently with certain provisions of the SCM Agreement and of the GATT 1994, it has nullified or impaired benefits accruing to China under these agreements. The U.S. shall bring its measures into conformity with its obligations under those Agreements.

NOTE: The U.S. Trade Representative (USTR) issued a press release that interpreted the Report as a win for the U.S., as the Panel upheld the U.S. right to impose anti‑dumping duties (response to unfair prices) and countervailing duties (response to government subsidies). The USTR emphasizes that the Panel found in favor of the U.S. in some respects, such as (a) the USDOC’s use of its non‑market economy AD methodology to calculate and impose AD duties concurrently with CW duties on the same Chinese products, and (b) the USDOC’s finding that SOEs and SOCBs are public bodies that provide subsidies.

Citation: United States of America—Definitive Anti‑Dumping and Countervailing Duties on Certain Products from China (DS379) (22 October 2010). See full Report on WTO website at www.wto.org; U.S. Trade Representative Press Release of August 24, 2010, available at www.ustr.gov.

European Court of Human Rights (ECHR) decides case challenging Ireland’s abortion legislation. Three Irish women (A1, A2 and A3) had traveled to England to obtain abortions. A1 and A2 did so because of health and wellness issues. A3, a cancer survivor, did so because pregnancy and birth would be a substantial risk to her life. The ECHR concluded that the current abortion regime in Ireland with respect to A1 and A2 did not violate the Convention. According to the ECHR, states enjoy a Margin of Appreciation under Article 8 of the Convention in assessing how to deal with abortion issues. Thus, a state must strike a balance between the health and well‑being of the woman and the rights of the unborn and between the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland. The Court did not consider that Ireland’s ban of abortion based mainly on maternal health and well‑being reasons, exceeded the state’s Margin of Appreciation. It arises from the profound moral views of the Irish people as to the sacredness of all human life including the unborn. The Court finds that Ireland has struck a fair balance between the right of A1 and A2 to respect for their private lives and the rights of the unborn. The Court ruled, however, that Ireland did violate A3’s Article 8 Rights. Irish legislation does not fulfill its Article 8 duties by failing to enable her to establish her qualification for a lawful abortion in Ireland. Citation: European Court of Human Rights. A, B, and C v. Ireland (Dec. 16,2010), see: http://www.echr.coe.int/ECHR/homepage.en the ECHR homepage.