Battlefield

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
ROGER C.S. LIN, et al.,Appellants,
v.
UNITED STATES OF AMERICA, Appellee.

No. 08-5078
Thursday, February 5, 2009
Washington, D.C.
The above-entitled matter came on for oral
argument pursuant to notice.
BEFORE:
CIRCUIT JUDGES HENDERSON, BROWN AND GRIFFITH
APPEARANCES:
ON BEHALF OF THE APPELLANTS:
CHARLES H. CAMP, ESQ.
ON BEHALF OF THE APPELLEE:
MELISSA PATTERSON, ESQ. (DOJ)
C O N T E N T S
ORAL ARGUMENT OF:
CHARLES H. CAMP, Esq.
On Behalf of the Appellants
MELISSA PATTERSON, Esq. (DOJ)
On Behalf of the Appellee

PROCEEDINGS
THE CLERK: Case number 08-5078, Roger C.S. Lin, et al., Appellants v. United States of America. Mr. Camp for the Appellants, Ms. Patterson for the Appellee.
?lt;/span>THE COURT: Mr. Camp, Good morning.
MR. CAMP: Good morning. May it please the Court, I am Charles Camp on behalf of plaintiffs/appellants. This is a treaty interpretation case. We’re asking the District Court to interpret the San Francisco Peace Treaty and determine whether the plaintiffs have any rights under theU.S. Constitution.
THE COURT: That’s why the issue is before is, isn’t it, whether it’s a treaty interpretation case or some other case. Doesn’t your claim turn on whether the United States exercises some form of sovereignty over Taiwan, isn’t that the gravamen of your argument?
MR. CAMP: The Court would have to examine sovereignty, but not determine sovereignty. For example, in the Boumediene case, they looked at the fact, the Supreme Court looked at the fact that Cuba exercises -
THE COURT: You mean the Boumediene case, I’m sorry.
MR. CAMP: Yes -
THE COURT: Okay.
MR. CAMP: The Supreme Court looked at the fact that Cuba has ultimate sovereignty --that was their words --Guantanamo Bay, but the U.S. exercises complete control and so they examined sovereignty to determine what constitutional rights the people at Guantanamo Bay have.
THE COURT: Your claim is that the United States exercises sovereignty over Taiwan.
MR. CAMP: Under this San Francisco Peace Treaty, it says that the United States is the principal occupying force over Taiwan. And so the question then is what rights, if any, do my clients have under the Constitution.
THE COURT: And they have no rights unless the United States exercises sovereignty over Taiwan, right?
MR. CAMP: They have to look at sovereignty, but they don’t determine sovereignty.
THE COURT: Do your clients have any rights if the United States has no sovereignty over Taiwan?
MR. CAMP: If the U.S. is not the principal occupier -
THE COURT: I’m using the word sovereignty, that’s the word. Answer my question.

MR. CAMP: Sovereignty.
THE COURT: If the United States exercises no sovereignty over Taiwan, do your clients have any claims, any rights?
MR. CAMP: If they control it. For example, in Cuba, in Guantanamo Bay, the U.S. controls Guantanamo Bay. I don’t know if that means they have sovereignty or not, but they control it and they have in essence, I would consider it to be de facto sovereignty because of their control. And the control---
THE COURT: So does the United States control Taiwan?
MR. CAMP: They don’t control it. Our position is they have sovereignty de jure (phonetic sp.) as a matter of law under the San Francisco Peace Treaty because they are the principal occupier.
THE COURT: Which branch of government does the Constitution give the power to determine who’s sovereign over a ---
MR. CAMP: There’s no determination of sovereignty that’s necessary. The fact -
THE COURT: You just said they have sovereignty de jure.
MR. CAMP: Yes, and that’s -
THE COURT: Which branch of government decides who has sovereignty de jure over land?
MR. CAMP: The U.S. has a relationship with Taiwan as set forth in the treaty. That’s been decided as a political matter years ago.
THE COURT: That’s not my question. I’m asking about more general principle, principles of law by which we have to decide this case. Which branch of government determines who has sovereignty de jure over a piece of land?
MR. CAMP: Well, it is for the political branches to determine who has sovereignty. But we’re not asking for a determination of sovereignty. There’s an examination of sovereignty.
THE COURT: I’m asking questions about principles. We’ll get to your case.
MR. CAMP: Okay.
THE COURT: But it is for the political branches to decide who has sovereignty de jure over a piece of land, right?
MR. CAMP: Well it’s already been determined and the treaty is our position.
THE COURT: Yes, I understand that’s your position, but it’s for the political branches to make the determination who has sovereignty de jure, right? And you say the treaty here -
MR. CAMP: It’s already been decided, yes, correct. And so therefore the question is it is for the courts to decide --well because the U.S. is the principal occupying force over Taiwan, it is therefore for the courts to determine what rights do people living there have under the Constitution. Courts decide what the laws are. Courts decide -
THE COURT: In the red brief in page 3, the Government says, “In 1954 the United States and the Republic of China signed a Mutual Defense Treaty wherein the United States recognized the Republic of China as the Government of China and recognized Taiwan to be one of its territories.” Is that accurate?
MR. CAMP: No, that’s not accurate.
THE COURT: It’s not? What’s wrong with it?
MR. CAMP: That was for a very limited purpose there. The legislative history for the Mutual Defense Treaty which is cited in my reply brief makes clear that the Mutual Defense Treaty made no change whatsoever in who has sovereignty over Taiwan. The Republic of China oversees Taiwan.
THE COURT: But the United States recognized the Republic of China to govern Taiwan.
MR. CAMP: Well the Republic of China oversees it administratively. That’s what the legislative history makes clear. It is that it is an administrative overseeing of Taiwan that the Republic of China does.
THE COURT: Does the Republic of China issue passports to its citizens?
MR. CAMP: It issues passports, but those are not recognized by a lot of places because there are a lot of places don’t -

THE COURT: The Republic of China itself issues passports for its citizens.
MR. CAMP: That’s my understanding.
THE COURT: Is there any passport that’s issued by the Taiwanese Government? I know this case involves the plaintiffs seeking U.S. passports.
MR. CAMP: Yes, they were like non-U.S. citizen passports.
THE COURT: What type of identification or what do they travel on now?
MR. CAMP: They get a travel document, but it’s not recognized by countries that don’t recognize Taiwan. It’s a discretionary matter. That is the problem that the people from Taiwan have is they can’t go to countries that don’t recognize their travel documents. It’s like showing up with a passport issued by Maryland, you know, they just go well what’s this? This is not a country.
THE COURT: And does the Taiwanese Government issue these travel documents?
MR. CAMP: Yes.
THE COURT: Okay.
THE COURT: Assuming that you’re right, you agree that the political branches decide this question of sovereignty and you think that we did that in the Treaty of San Francisco.
MR. CAMP: Yes.
THE COURT: But there have been other actions by the political branches, namely the Executive, which have articulated this idea of strategic ambiguity. Can the Court simply ignore those later actions?
MR. CAMP: None of those later actions changed the treaty. And there have been no later treaties to amend. It was left, who owns Taiwan was left purposefully as an open question when they signed the San Francisco Peace Treaty included in the appendix or documents pertaining to the negotiation of the San Francisco Peace Treaty. And it’s very clear that it was left open because they wanted the option to decide what happened to Taiwan at a later time. There was no agreement that could be reached among the allied forces in Japan as to who gets Taiwan. And that question is still open and the Executive cannot issue something that modifies a treaty. Now the treaty is the supreme law of -
THE COURT: In your answer, haven’t you just acknowledged what the Government’s position here is, is that whoever has sovereignty over Taiwan, it isn’t the United States. It’s an open issue. That’s been the policy of the Executive for 50 years or so.
MR. CAMP: No, but as a matter of law, we are the principal occupying force, and that is the status as a matter of law today. And from that rights flow, and that is for the courts to decide what rights flow from that status. The status of the U.S. being the principal occupying force.
THE COURT: Can you cite me any examples in history where the United States has been the principal occupying force of a territory and the residents of that territory were entitled to passports from the United States or other rights.
MR. CAMP: Yes, the Philippines is one example. In fact, there was a point in time when we were the principal occupying force over the Philippines. After following World War II, the same situation, the people, I’m sorry, the people in the Philippines had rights to U.S. passports that had been recognized. So they had passports and then there was a time when we were turning over the sovereignty for the Philippines to its own people, to its own government. And there was a delay before the new government would issue passports. And so during that gap when we were there and the government became effective, you couldn’t get passports and somebody there went all the way to the Supreme Court and said it’s cruel and unusual punishment for people not to be able to get a passport and the Supreme Court agreed. The people in limbo had no rights to passports, and they said -
THE COURT: But that’s never been done for the people in Taiwan.
MR. CAMP: No, this issue has not come up on Taiwan before.
THE COURT: Has it ever been attempted by anyone in Taiwan before?
MR. CAMP: No, no.
THE COURT: Let me ask you about the claim that your clients are non-citizen nationals. Does that depend on this determination of sovereignty or is that a separate basis on which you are arguing?
MR. CAMP: Whether they are nationals, first of all, is a question for courts to decide. The immigration statute makes it clear that decisions on nationality are for the courts to decide. And the courts will decide on the basis of the relationship of the territory where the people live to the United States. You examine the relationship just like in the Guantanamo Bay case, they examined the relationship between the U.S. as control of Guantanamo Bay and here. And then they examined the relationship and then decided what the rights were. It’s the same thing. You examine the relationship that exists, that previously and has existed for years between the U.S. and Taiwan and then you decide from there what flows from that, what rights flow from that. And non-citizen nationality is one of the things that we are seeking.
THE COURT: I guess my specific question is are you focusing on this idea of permanent allegiance to the United States which courts have generally rejected or are you making a different argument?
MR. CAMP: Yes, it is for courts to decide, just one point. It is for courts to decide whether there’s this permanent allegiance. That’s a judicial decision and not an Executive or political decision. You have to look, yes, what is the legal relationship? What is the relationship between the U.S. and Taiwan and that is set forth in the San Francisco Peace Treaty and then from that you decide what rights they have. Are they nationals or not? But that’s a substantive issue that, you know, we basically want our day in court on. You know, we don’t believe this is a political question case and we want our day in court. That’s obviously why we’re appealing. We don’t think the political question doctrine applies. There’s not a single case that the Government cites that says that the political question doctrine has ever prohibited a court from interpreting a treaty or determining the existence of constitutional rights. In fact, the Government’s own brief says that all the cases we have cited in our briefs, in the appellants’ briefs are in opposite it says because all the cases involve judicial interpretation of statutes or treaties. Well that’s precisely correct. All of our cases do involve the interpretation of a statute or a treaty and the determination of the constitutional rights.
THE COURT: So you are not arguing that Boumediene actually does away with the political question doctrine. You are just arguing that it doesn’t apply in this circumstance.
MR. CAMP: I’m arguing that in that case the courts looked at the relationship between the U.S. and Guantanamo Bay. They examined the sovereignty basically, the control. What was the situation? In Downes v. Bidwell in 1901, the Supreme Court said that the determination of what particular provision of the constitution is applicable in all cases involves an inquiry into the situation of the territory and its relationship to the United States. And that was the case relied on in the Guantanamo Bay case and the Boumediene case. You know, you can examine the situation.
THE COURT: Now you realize that we are reluctant followers of Boumediene, so we don’t get a lot of warm fuzzies.
MR. CAMP: Okay, I -
THE COURT: But we are followers.
MR. CAMP: Yes, but, so I’m not asking --there’s no determination of sovereignty we’re asking for. We’re only asking that you examine the situation as was done in the Boumediene case and as was done in 1901, Downes v. -
THE COURT: If we were to find that later Executive action somehow altered the San Francisco Peace Treaty, your case really turns on San Francisco Peace Treaty being governed wrong today, right?
MR. CAMP: Correct, if the San Francisco Peace Treaty doesn’t exist in its current form, then we’re done. But the treaties are spring law of the land and can’t be changed except by another treaty, or we can withdraw.
THE COURT: Wouldn’t you acknowledge that the Executive has taken since the treaty positions that are contrary to yours?
MR. CAMP: No, no.
THE COURT: The Executive has taken the position that the United States does not have sovereignty or control over Taiwan.
MR. CAMP: It hasn’t actually done that. It has basically said we are not changing -

THE COURT: It’s a surprise to the State Department to hear they haven’t done that.
MR. CAMP: No, they have never said we are no longer the principal occupying force of Taiwan. I mean they have never been, if they had specifically intended to say we are no longer the principal occupying force of Taiwan, they have never used those words. There’s never any document that the Executive or the legislative branch has ever said we are no longer the principal occupying force of Taiwan and there have been no decisions by the Executive Branch or Congress that people in Taiwan are not nationals. This is just an area that hasn’t been decided.
THE COURT: Let me ask you about the Treaty of Taipei which was between the Republic of China and Japan and at least in that treaty, the Republic of China said in Article 10 that the inhabitants and former inhabitants of Taiwan and the Pescadors (phonetics sp.) are nationals of the Republic of China. Now what do we do about that treaty if we say well, they are U.S. nationals as well? I mean what weight do we give that treaty where the Republic of China has and probably in other places too, I don’t know, but declared the people of Taiwan to be nationals of the Republic of China?
MR. CAMP: Well, I’ll admit I have not ever read those words in that treaty that indicate that the people of Taiwan are nationals. That it’s agreed that they are nationals of the Republic of China.
THE COURT: Well what it says in Article 10 is nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan, Formosa and Penhu, the Pescadors and their descendants.
MR. CAMP: That doesn’t change our treaty that says that we are the principal occupying force of Taiwan.
THE COURT: Well it may not change the treaty but what do we -
MR. CAMP: I think that would be, frankly, I think that would be a political decision to decide what effect does that treaty have on our Government. But, I guess courts are only charged with interpreting treaties so you can argue that either way. But I am unaware -
THE COURT: Let me ask you, if I understand your arguments, you’re relying on a phrase in the treaty, principal occupying power, right, United States is principal occupying power.
MR. CAMP: Correct.
THE COURT: You’re saying that from that language flows rights to citizens of Taiwan. What are the limits of those rights? So they receive all the constitutional rights of a citizen of the United States?
MR. CAMP: Well there are, the Insular Cases back from the turn of the century, 1900 dealt with the issue of what rights apply. In fact, in that case --I’ve got it right here --the question was in Downes v. Bidwell again, it says the determination of what particular provision of the Constitution is applicable involves an inquiry, okay. The real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Puerto Rico --you had asked for other examples, the Philippines --when we went there but which of its provisions were applicable.
THE COURT: Well right now you’re asking for passport rights, right? But on the force of your reasoning, habeas corpus extend that? I mean you’ve been talking about the Boumediene case.
MR. CAMP: Well, I would, I mean the cases say fundamental personal rights declared in the Constitution. That’s what the cases support. That’s Torres v. Puerto Rico and the -
THE COURT: That’s what the case supports -
MR. CAMP: Fundamental -
THE COURT: So what’s some of the fundamental rights, American constitutional rights that citizens of Taiwan are entitled to under your reasoning? You’re saying get a passport, that’s one of them.
MR. CAMP: Sure, well it’s in the declarations that I sought which are in the complaint. The first two declarations have to do with requiring that they are noncitizen nationals. The ones that they are the Fifth Amendment Right against life, liberty and property without due process of law. The Fourteenth Amendment, same thing. The Fifth Amendment, right to travel without due process of law which requires notice and hearing, in other words, right to a passport. The Supreme Court held that it’s, you know, it’s cruel and unusual punishment to not allow somebody to have a passport.
THE COURT: And your argument is ever since the San Francisco Peace Treaty, the citizens of Taiwan have been entitled to these -
MR. CAMP: Fundamental personal rights under the Constitution, correct, as well as the Eighth, Fourteenth and the First Amendment right to petition the Government for redress. So, but those are substantive questions.
THE COURT: So citizens of Taiwan who complain under the First Amendment, who do they bring that against? Do they bring that against the Republic of China or they bring that against -
MR. CAMP: No -
THE COURT: --the United States -
MR. CAMP: The United States, the United States. If they have fundamental rights -
THE COURT: So all the government actors in Taiwan right now are agents of the United States?
MR. CAMP: The Republic of China is holding Taiwan basically in trust.
THE COURT: Miranda rights, so I’m a citizen of Taiwan and I’m arrested and the arresting authority doesn’t read me my Miranda rights, I now come to federal district court -
MR. CAMP: We haven’t asked for that. We haven’t asked for that. It’s just fundamental rights and what that means is -
THE COURT: Jury trial?
MR. CAMP: We’re not asking for that. We’re not asking for that. I mean it’s -

THE COURT: I’m trying to understand the force to get to your -

MR. CAMP: Sure, I mean that’s a substantive question in terms of precisely what rights -
THE COURT: It’s breathtaking what you’re asking for is quite breathtaking.
MR. CAMP: Well, it might be, but that’s what the law supports and that’s what the facts support. And courts are the ones charged with determining what constitutional rights exist and we’d like our day in court to have the court determine what constitutional rights exist.
THE COURT: All right, thank you.
MR. CAMP: Thank you very much.
THE COURT: Thank you.

THE COURT: Ms. Patterson.
MS. PATTERSON: May it please the Court, Melissa Patterson on behalf of the United States.Your Honors, we ask this Court to affirm the District Court’s dismissal of the action here either on the grounds that in order to resolve the United States de jure sovereignty over Taiwan would involve a political question or if this Court construes the complaint here to only assert that plaintiffs are nationals under the United States under the Immigration and Nationality Act. I think that can be exposed just simply on the merits on the statutory grounds to be a national is defined within that act as persons born in the outlying possessions of the United States which are limited to America, Samoa and Swains Island.
THE COURT: What is the Government’s position about status of the San Francisco Peace Treaty, particularly the language that United States is the principal occupying power? Is that good law?
MS. PATTERSON: I believe the treaty is in effect. We have not taken a position on whether or not the United States is, in fact, the principal occupying, I’m sorry, the United States has not --let me be clear. The United States is not the principal occupying power over Taiwan.
THE COURT: What has changed, because that’s the language of the treaty, right?
MS. PATTERSON: Yes, but I think there have been several pertinent changes if this Court is looking at de jure sovereignty. First of all, there was the 1954 Mutual Defense Treaty in which the United States recognized Taiwan to be among the Republic of China’s territories. In 1972 we began talks with the People’s Republic of China. In 1978, President Carter announced that as of January 1, 1979 we would be discontinuing diplomatic relations with the Republic of China and opening up relations with the People’s Republic of China.
THE COURT: But how is that inconsistent with the language of the principal occupying power? That perhaps the 1954 Mutual Defense Treaty is recognizing a government, the Republic of China.
MS. PATTERSON: Certainly, Your Honor.
THE COURT: Are there any other examples, or is that sufficient?
MS. PATTERSON: I think that’s sufficient, Your Honor. Again we haven’t offered up an interpretation of the San Francisco Peace Treaty because we don’t think it’s relevant here. What plaintiffs are arguing is that the San Francisco Peace Treaty makes the United States the principal occupying power and then they take in inferential leap to say that means that the United States is the de jure sovereign and then there’s another leap to de jure sovereignty means that they are nationalists.
THE COURT: What does that language mean though? I mean it means something.
MS. PATTERSON: The principal occupying power?
THE COURT: Yes, right.
MS. PATTERSON: I believe that refers to the fact that at the time the United States signed that treaty, it was the principal occupying power of Japan. I’m a little hesitant to offer a definitive, the United States definitive construction of that treaty because again, we just don’t think it’s relevant here. Plaintiffs are claiming that they have rights that stem not simply under that treaty, but from the fact that that treaty makes the United States the de jure sovereign over Taiwan. And the United States has made it very, very clear that whoever the de jure sovereign of Taiwan is, it is not the United States. Moreover, all of plaintiffs’ claims are based -
THE COURT: If, in fact, the treaty, that language of treaty creates the United States as the de jure sovereign, can the United States walk away from that treaty? I don’t think they can.
MS. PATTERSON: Certainly, Your Honor, I think that any questions about who the de jure sovereign is over a territory are entirely within the province of the political branches.
THE COURT: If a treaty is established that the United States is the de jure sovereign -
MS. PATTERSON: I believe that -
THE COURT: --would the Executive unilaterally change that?
MS. PATTERSON: I’m a little shaky. In my reflection of Goldwater v. Carter, but I believe that the president can -
THE COURT: Let me help you, the answer is no.
MS. PATTERSON: Okay, but so I don’t believe there’s anything in that treaty that would establish the United States as the de jure sovereign, and I think that the extent to which you need to look at that treaty here is somewhat informed by this Court’s statements about how you go about examining a political question. And this Court in the Vanquil (phonetic sp.) decision clearly and quoting Baker said you need to -
THE COURT: What’s different here is if the language of the treaty supports what counsel said. If, in fact, the language principal occupying power means that the United States is the de jure sovereign, you’re in trouble.
MS. PATTERSON: Well -
THE COURT: You’re in trouble.
MS. PATTERSON: Let me offer up the United States’ position that that is not what that treaty means. Whatever else it may mean, it does not mean that the United States is the de jure sovereign over Taiwan and I think in resolving this question, this Court should look to perform that discriminating analysis of the particular question posed here. And the particular question posed here is not whether or not the United States is the principal occupying power, but whether or not plaintiffs are nationals of the United States and further whether or not the United States is the de jure sovereign over Taiwan, and on both of those questions, plaintiffs’ claims fail.
THE COURT: If the United States is the de jure sovereign over Taiwan, would they be nationals?
MS. PATTERSON: Not necessarily, Your Honor.
THE COURT: Okay, so it’s possible that those questions are actually separate.

MS. PATTERSON: Yes, Your Honor. And as we -
THE COURT: Why is that? I don’t -
MS. PATTERSON: Because national is a statutory term defined in Immigration Nationality Act.
THE COURT: America, Samoa and Swain Islands -
MS. PATTERSON: Exactly, Your Honor. And I suppose that plaintiffs are alleging that there is some non-statutory route to national status and I think that there’s a pretty solid wall of precedent all eight circuit courts to have examined whether or not you can become a national within the meaning of the Immigration Act by any non-statutory routes. They clearly said you cannot.
THE COURT: But what right -
THE COURT: Was that still true after Boumediene?
MS. PATTERSON: I -
THE COURT: I mean I think what Mr. Camp is arguing is that if de facto sovereignty is enough, then if they have a claim of de jure sovereignty, they’re actually in a stronger position.
MS. PATTERSON: I think that’s simply not true, Your Honor. All of the cases, Boumediene and the Insular Cases, the Supreme Court made it clear that what they were examining there was the United States objected to degree of controller perhaps de facto sovereignty. And the Boumediene decision explicitly noted the same language that the District Court here noted from Vamiliar Brown (phonetic sp.) they declined to question the Government’s assertion that the United States was not the de jure sovereign over Guantanamo Bay, just as this Court should decline to question the Executive’s assertion that United States is not the de jure sovereign over Taiwan. So in all of the plaintiffs’ claims here rest on an assertion of de jure sovereignty. They are not asserting nor could they assert that the United States exercises any actual control over Taiwan.
THE COURT: But doesn’t that lead us to a sort of odd result that de facto sovereignty is more powerful than de jure sovereignty if that’s what exists here?
MS. PATTERSON: That may be odd, but that’s what the Supreme Court said and actually I think there’s a good reason for that, Your Honor. In the Insular Cases, or at least in the Boumediene decision discussing the Insular Cases, the court said the issue there wasn’t necessarily about the you know, de jure reach of the Constitution over a particular territory. It was what limitations in here and the United States’ actual exercise of power over people so that the constitutional limitations follow an actual exercise of power as opposed to a paper trail.
THE COURT: What rights would come to someone who couldn’t meet the statutory requirement for being a national but lived in a territory over which the United States exercises de jure sovereignty?
MS. PATTERSON: I don’t know that that question’s ever been presented because I don’t think it’s ever been explored if the United States holds simply de jure sovereignty but doesn’t exercise any actual control. I don’t know what rights we have there.

THE COURT: --but what about in de facto sovereignty, I’m just wondering other than the statutory right regarding national which you say precludes, are there any other rights that someone would have?
MS. PATTERSON: If the United States were exercising, I think your question is de facto?
THE COURT: Yes.
MS. PATTERSON: Yes, I think the Insular Cases did discuss what various rights would attend the United States exercise of actual power of their objective degree or control. And the court noted that it’s a highly case specific type of analysis that depends on the United States’ particular relationship. And I think in some of those Insular Cases, the court indicated that the stronger the ties, the more the control the United States had over the area. That could change the shape of the constitutional limitations that went with the exercise of that power. So I can’t offer you up a general laundry list of rights that might go along with an exercise of de facto power.

THE COURT: So they don’t include the right to a passport.
MS. PATTERSON: I don’t think they would include the right to the passport, certainly, Your Honor. If there are no further questions from the Court, the Government will rest.
THE COURT: Actually I do have a question.
MS. PATTERSON: Yes.
THE COURT: It’s a minor point. In your red brief at 18, you quote our decision in Boumediene that quote, “The determination of sovereignty over an area is for the legislative and Executive requirements.” Do you agree with that, is that a legislative function, determination of sovereignty over an area? I would have thought that the Government’s position would be that that’s exclusively for the Executive. And the Constitution gives to the Executive the right to recognize ambassadors (indiscernible).
MS. PATTERSON: Well certainly, Article 2 is rich with delegations to the Executive Branch. To the extent that the legislative powers hold a role here, I think that they’ve clearly spoken in this case. I don’t know if every case would involve a legislative weighing in on the particular sovereignty.
THE COURT: All right. Why don’t you take two minutes.
MR. CAMP: Thank you.
THE COURT: To respond to anything the Government has said.
MR. CAMP: Yes, just very, very, briefly. I just wanted to point out that in the Boumediene case it says it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation while the plenary control or practical sovereignty of another. This condition can occur when the territory is seized during war as Guantanamo was during the Spanish American War. And so, you know, we conquered Japan. Japan gave up all right, title and claim and territories including Taiwan. We are the principal occupying force, therefore and so the Boumediene case does deal with importance of de jure sovereignty and points out, of course, that the Insular Cases are still effective today. Obviously it says the century old doctrine informs our analysis in the present matter. That being that when we have sovereignty over a territory, there are guarantees to certain fundamental personal rights declared in the Constitution. And, yes, counsel for the Government pointed out that there’s this discriminating analysis of the six Baker factors that has to be done and the District Court didn’t do that. She just sort of, you know, she didn’t-
THE COURT: --She identified two Baker factors.
MR. CAMP: But she -
THE COURT: You only need one.
MR. CAMP: Well, but I don’t think she understood and I don’t think the --I don’t think she, she clearly didn’t understand that we were not seeking a declaration of
sovereignty. We were seeking a declaration of rights under the Constitution following an interpretation of the treaty by the court. So the court just sort of stepped off on the wrong foot and then if you assume that we were seeking to have a court decide who owns Taiwan, then the political act question cases would apply and she would be right. The Government would be right, but that’s not what we’re seeking. We’re not asking the Court to decide who owns Taiwan. We’re asking the Court to determine based on the language of the treaty, what are the rights, the fundamental constitutional rights -
THE COURT: Because your argument is that the treaty makes clear that the United States is the -
MR. CAMP: Principal occupying force.
THE COURT: With that comes the power, the right to have a passport.
MR. CAMP: Correct, correct, correct. And just one -
THE COURT: And other indicia of citizenship, protection under the U.S. Constitution.
MR. CAMP: Yes, certain fundamental rights to be determined. And I just wanted to point out, if I may, just one -

THE COURT: All right.
MR. CAMP: --more minute, nevertheless, whether my clients owe permanent allegiance to the U.S. for purposes of determining whether or not they qualify as nationals is a question to be decided by federal courts. Congress in the Immigration Act does not provide any explicit guidance as to the circumstances under which a person owes permanent allegiance to the U.S. This is from a Fourth Circuit case (2006) Draggient v. Gonzalez (phonetic sp.). And there are other similar cases. It is for the courts to decide nationality and for the courts to determine permanent allegiance. And there’s nothing there that says that you have to go to the statute. I think it’s an open question.
THE COURT: All right.
MR. CAMP: Thank you very much.
THE COURT: Thank you. Call the next case..

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This case is so interesting.........