A former grand justice of the Judicial Yuan, the highest court in Taiwan, was sitting front row today in the U.S. Court of Appeals for the D.C. Circuit to hear argument in a politically sensitive case that drew dozens of observers.
D.C. solo Charles Camp, a specialist in international disputes, was arguing that the Taiwanese are entitled to U.S. constitutional rights because this country has exercised de jure sovereignty over Taiwan since the treaty ending World War II took effect. The San Francisco Peace Treaty says the U.S. is the principal occupying power, Camp argued, and no official act has terminated this position. Courts have power to interpret treaties, Camp said.
U.S. District Judge Rosemary Collyer dismissed the action last year, citing the political doctrine. "The plaintiffs would have the court address a quintessential political question and trespass into the extremely delicate relationship between and among the United States, Taiwan and China," Collyer wrote. "This it is without jurisdiction to do."
Camp’s hurdle on appeal is convincing the D.C. Circuit that while the particular question before the court raises political issues, it is not a political question itself.
He argued the plaintiffs, more than 1,000 Taiwanese citizens, are not asking the court to answer the ultimate political question of who owns Taiwan. Examine sovereignty, Camp told the judges, but do not decide it. Camp cited last year’s Supreme Court decision in Boumediene v. Bush in which the Court extended habeas corpus rights to detainees held in U.S. military confinement in Guantanamo Bay, Cuba.
Judge Thomas Griffith, sitting with Judges Karen LeCraft Henderson and Janice Rogers Brown, said from the bench that “we are reluctant followers of Boumediene ... but we are followers.” He actively questioned both Camp and counsel for the government, Melissa Patterson, an appellate lawyer in the Justice Department’s civil division. Patterson urged the court not to tangle with a political question that is best left to the political branches to decide.
Griffith explored the scope of the constitutional protection the plaintiffs are seeking. The breadth of constitutional rights would be decided in the trial court, Camp said.
Camp characterized the demands of the plaintiffs as fundamental personal rights—including the rights to due process and to travel. The plaintiffs are seeking U.S. passports, which would give them greater freedom to travel. Camp said that some countries do not recognize Taiwanese travel documents. “It’s like showing up with a passport issued by Maryland,” he said.
The appellate judges momentarily held up the start of an unrelated case to allow the large group of observers to leave court. Professor Chung-Mo Cheng, the former grand justice in Taiwan, left with supporters who side with the plaintiffs. The case is Roger Lin, et al v. United States of America.