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Providing for a limitation on jurisdiction of the Courts of the United States in all cases involving governance of Formosa/Taiwan/Republic of China

111th Congress
First Session

CONCURRENT RESOLUTION

Providing for a limitation on jurisdiction of the Courts of the United States in all cases involving governance of Formosa/Taiwan/Republic of China

Whereas Formosa is an island in the Pacific that has been under the control of many nations over the past thousand years, and

Whereas the United States of America has never exercised governmental control over this island, and

Whereas free and democratic elections are held on the island on a recurring and predictable basis, and

Whereas the people living on this island have full rights to vote in such elections:

Resoved by the House of Representatives (the Senate concurring),

a. That Title 28, Chapter 85, Section 1330 of the U.S. Code is herewith amended as follows;

(d) The foregoing nothwithstanding, nothing in this section nor any other section of this Title shall be construed to grant jurisdiction to the Federal District Courts over any matter involving the rights, privileges, or other elements of citizenship, nor the structures, exercise, nor other aspects of national governance of the island of Formosa
(e) No matter related to the issues set forth in (d) above shall be considered to be within the jurisdiction of the Courts of Appeal nor the Supreme Court of the United States.

b. This law shall become effective immediately upon final approval of this bill by the President or by both houses acting to override a veto of this bill by the President.

c. Any cases pending in the Federal courts at the time of such passage shall be deemed to be outside the jurisdiction of the Courts and shall be dismissed with prejudice as soon as appropriate orders of dismissal can be issued by the trial judge if in District Court or by the Chief Justice if in an appellate court.

I have given the link several times previously. However, it appears that I have to give it again. Here it is -- http://www.taiwankey.net/dc/milgovex.htm#miljurcn

And, once again, it fails to be convincing. Interesting to read, but in light of the laws stated and the opinions put forth by our elite legal team it just aint gonna fly. It may flap its little wings and leap about. Its hopes may soar with eagles but, by all the indications, it will not achieve the boost it needs from the Courts of the United States.

The link does not cite any provision of the Constitution as a source for military jurisdiction. It makes references to the Constitution in general terms, then proceeds to link each of the three types of military jurisdiction to federal statute or common practice of the executive or legislative branch as the basis for each.

The word “military” appears once in the Constitution, a 14th Amendment limitation on public officials occupying multiple positions simultaneously.

The word “jurisdiction appears:
Article III, Section 2 grant of admiralty and maritime (both areas of law dealing with commercial, not military matters) jurisdiction, and grant of original jurisdiction to the Supreme Court for specific subject matter (not including military affairs) and appellate jurisdiction in other cases appropriately before the federal courts.

Article IV, Section 2, directing that specific criminal matters be assigned to the state having jurisdiction over that crime.

Article IV, Section 3, precluding creation of a new state from within the jurisdiction of an existing state.

13th Amendment, prohibiting slavery within the jurisdiction of the United States.

14th Amendment provisions for citizenship and equal protection for citizens.

18th Amendment, dealing with prohibition of sale of alcohol, long since repealed.

The Constitution conveys no powers of jurisdiction in military matters per se to any adjudicative body.

Just as a point of order, even following the citation provided by tc above does not deliver the result hoped for; specifically, in Milligan the court in addressing military government expressed these requirements:The elements missing in this instance are 1) supersession of local law, 2) exercise of authority by the military commander, 3) direction of the President and 4) sanction by the Congress. In other words, all four elements are missing.

Of course, once again, this comes back to a misreading of the SFPT - by asserting that the United States was the principle occupying power. As I have noted before, that occupation ended with the entry into the peace treaty, if not before. It takes a gross misreading of international law to assert that the occupation - by the United States - existed after that point in time - either de facto or de jure. But, again, we are circling back to the previous thread. Bottom line, the U.S. Constitution is inapplicable, and the court will not find jurisdiction in any event.

All four elements are very much present. You have totally failed to grasp the relationship of the United States and the Republic of China in regard to the military occupation of Taiwan. It is a principal - agent relationship.

Your continued insistence on this point clearly shows that you are only somewhat familiar with military occupations in areas which have not become territorial cessions in a peace treaty. However, the US experience in California, Puerto Rico, Guam, the Philippines, and Cuba (all of which were territorial cessions) clearly shows that the military occupation does not end with the coming into force of the peace treaty. Your analysis merely represents the common misconception of most civilian legal researchers. Indeed, your insistence on this point, at the most basic level, shows that you do not have a clear understanding of the concept of "military occupation" at all.

That the United States is the principal occupying power is clearly stated in the treaty, despite your many denials.

I regret that the analysis is too deep for you to comprehend. However, if you would like to offer some evidence to support your assertion(s), (which so far you have failed to do), it would be easier to offer more substantial replies.

This is the red herring in your fish shop that most easily demonstrates my frustration with your many arguments and contentions.

As has been documented fully elsewhere, the term "principal occupying power" appears in the treaty once and only once; to specify that the United States must ratify the treaty per its ratification terms in order for the treaty to enter into effect. There is no suggestion that the United States has any other special powers, duties, or obligations, nor is there any language to suggest that "principal occupying power" has any other meaning or significance.

Your insistence on using this language, that functions only to provide the United States with unique "voting" rights as to ratification, as the basis for all other elements of your argument is specious, whether intentionally so or not.

And your continued insistence on referring to the treaty by its colloquial name rather than its official name demonstrates to me a desire to have everything your own way, whether the facts and the law support them or not. As simple a matter as using the correct terminology in referring to the Treaty would be an excellent demonstration of good faith.

I've had it, TC, really I have. You want to keep making disparaging remarks about the "understanding" of other posters - put up. Not only is it a violation of the spirit of this site, it is insulting and arrogant. Give us an inkling of where you got your vaunted, unique knowledge of international law, military law, and the interpretation of treaties. When you do that, I will reciprocate. You have one reading of what you are asserting, and you insist that no one else's interpretation can possibly be right. Really? What makes you the expert, my friend? Give it to us straight.

Really? I'm from Missouri: show me. Give me a point by point refutation rather than a simple denial. That, my friend, is how discussions are engaged in. Show me where the local laws were superseded. Show me how the United States has exercised military law since 1952 - any instance will do. Show me how the Congress has given that authority to the military commander. In order for there to be a principle-agent relationship, there has to be direction from the principle. Show me any instance of that since 1952, and I will accede that you have a point. Insisting it is true without providing substance (and vague links to tangentially potentially relevant sites does not do). I want your analysis, my friend. I have asked for it several times.

Your frustration arises from your overly subjective analysis, which causes you to travel down many blind alleys.

Where? You attempt to call your subjective musings as "documentation" is most amusing. Have you put up some web pages with your comprehensive analysis?? I would like to see some. Please put all of your "documentation" on to a webpage so that we can debate it more comprehensively.
Incorrect. As has been fully documented elsewhere, the issue of handling the continuation of the military occupation after the peace treaty comes into effect must be dealt with.
This is only your personal viewpoint, based on a lack of knowledge of "Military jurisdiction under the US Constitution." Article 23(a) must be read in conjunction with another Article in the SFPT in order to understand its application. See below.

Not at all. Article 4(b) clearly shows the application of the Article 23(a) "principal occupying Power" designation. You need to read and study the treaty from the viewpoint of "the customary laws of warfare." A starting point for researching this topic is to study the "law of occupation" as delineated in the Hague Conventions, Geneva Conventions, and US Army Field Manuals.

Most importantly, based on the US experience in California, Puerto Rico, Guam, the Philippines, and especially Cuba, for a peace treaty after war which encompasses territorial cessions, there will be the designation of a (principal) occupying power. You are making the typical mistake of most civilian researchers in thinking that this designation in Article 23(a) is somehow only limited in application to Article 23. You need to read and study more peace treaties.

Yes, in the future please refer to the treaty as the SFPT. This is the consistent terminology which the plaintiffs/appellants have used since their original case was filed in the US District Court, Washington D.C. on Oct. 24, 2006, and will continue to be the terminology used in the future.

Taiwan is an abbreviation for "Formosa and the Pescadores." This is also part of the consistent terminology which the plaintiffs/appellants have used since their original case was filed in the US District Court, Washington D.C. on Oct. 24, 2006, and will continue to be the terminology used in the future.