(E-mail to OCTA Member from Jeff Geer)   

Dear Stan:                                                                                              July 13, 2002

Thanks for your interest and I can appreciate how difficult it is to comprehend these issues of Taiwan status and the obscure nature of these laws of war and insular status of "undetermined" cession in SFPT.  I can only start by saying that we're in the same general sphere of shared court cases for West Berlin and the legal terrain is very closely shared by the US military commissions for "terrorist" military detainees.  The difference is that they are enemy aliens and Taiwanese nationals are not, so their protections are more substantial than someone whom is not a loyal friend of the USA. Depending on just how close those "connections" are to the USA, there is an ascending scale of civil rights eventually becoming equal to US citizens.  It is a trickle down theory of the 5th and 14th Amendments with the judiciary potentially opening the entire Bill of Rigts to Taiwanese. Even enemy aliens whom were captured by the US Army and then discovered to be US citizens have received very different US constitutional protections on the basis of their political status as US citizens.  Taiwanese nationals of the Taiwan cession fall into a gray area as "friendly aliens" under the supreme authority of the USA in SFPT.  Until the finalization of the Taiwan Question, they are to be regarded as the constituting the "American interest" in Taiwan or they should be treated as though they are "US Nationals" because of the Laws of Occupation.  This does not grant them US citizenship under customary laws of SFPT status, but they are still constitutionally protected because of the territorial jurisdiction of the SFPT cession continuing under the Laws of Occupation.  For purposes of their insular status, the ROC are legally acting as the territorial governors of the US Commander-in-Chief under the military powers of SFPT.  It is really almost tantamount to being the legal equivalent of the trust territories of SFPT but solely under the military powers of the US Constitution and international laws of occupation becoming applicable because of SFPT.  

Under the Laws of War (eg. Geneva Conventions, Hague Regulations summarized in FM 27-10), there is a doctrine of "immunity" to the local courts. This means the paramount occupational authority of SFPT can exert their own jurisdiction for the American interests (US citizens in Taiwan, KMT-stolen property, national security, etc) with their own US Court of Taiwan.  It means the ROC Laws on Taiwan are used but subject to the judicial procedures of the US Constitution.  The best example of dormant occupational authority was in West Berlin in 1979, when the US Court of Berlin was reconvened after 26 years of being legally dormant but the authority was still on the books like SFPT is dormant for Taiwan.  This case in Berlin was US v. Tiede. http://www.law.uchicago.edu/tribunals/usvtiede.html.   The precedents of a German national having a "right to jury trial" is based upon federal court orders for such rights under SFPT authority in the Okinawa cession prior to 1972 and in Saipan prior to 1976.  Both were "undetermined" cessions under the administrative authority of SFPT, very much just like Taiwan in Art. 2.  

(B). Can a Taiwanese firm with a branch in US sue PROC embassy or PROC public firms (most under PRA control) in US courts for damages due to missile incidences several years ago and how?

Yes, Falun Gong has been doing similiar activities against the PRC with great psychological success.  They used the Alien Tort Claims Act (ATCA) for human rights violations under the Foriegn Sovereign Immunities Act and the Torture Convention.  For Taiwanese, the TRA is their equivalent of ATCA with a "human rights" clause.  As the status of Taiwan is undetermined, these human rights are really "undefined" civil rights just like those found in the "undetermined" status of Cuba, Puerto Rico, and the Philippines in the 1898 Treaty of Paris. These civil rights were left "undetermined" by Congress and the Supreme Court step in to define them with the doctrine of incorporation for any "undetermined" political status of a peace treaty cession in Downes v. Bidwell in 1901.  The US v. Tiede case discusses this at length. 

The imposition of massive psychological harm is an defined crime of genocide which is deemed as a crime of war. Because of the SFPT cession, this occurred within a territorial jurisdiction of the USA, and they are the paramount or principle occupational authority of SFPT (see Art 4 and 25).  The ROC does not even exercise supreme authority as the military governors of Taiwan in SFPT.

 (C). How many of your colleagues share the same thoughts with you.

Richard Hartzell and I feel strongly on this and we're working closely together on it.  He has a backlog of other potential cases (like yours) which will move forward once we get a first case to "bridge" the US and Taiwan for the rights of US citizens in Taiwan (Reid v. Covert).  With this precedent, Taiwan nationals are able to make their own legal claims to the Bill of Rights under the SFPT undetermined status and the Laws of Occupation like in US v. Tiede and other cases.

Thanks again, and I will try to do more to help clarify this issue.  Richard struggled for a long time and then it clicked.  This is huge forest and one might see only a few trees in the beginning.   

Regards,

Jeff Gear

E-mail from Jeff to our member Dr. Stan Yang on July 13, 2002