BLS Library Blog

This December marks the 60th anniversary of the Convention to Prevent and Punish the Crime of Genocide. On December 9, 1948, the General Assembly of the UN at New York approved a resolution adopting the treaty. It is one of the most important documents in the creation of an international criminal jurisdiction by the UN immediately after WWII. On December 11, 1948, President Harry Truman signed the document on behalf of the US and sent it with a letter to the US Senate for ratification. Although a sufficient number of UN member states ratified the treaty on January 12, 1951, it was nearly 40 years later when it went into effect for the US.

The 100th Congress passed the Genocide Convention Implementation Act of 1987 (also known as the Proxmire Act), Public Law No. 100-60, codified at 18 USC 1091. That section defines genocide:

(a) Basic Offense. – Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such –

1. kills members of that group;
2. causes serious bodily injury to members of that group;
3. causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
4. subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
5. imposes measures intended to prevent births within the group; or
6. transfers by force children of the group to another group; or attempts to do so, shall be punished as provided in subsection (b)

(c) Incitement offense. – Whoever… directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both.

The 108th Congress reaffirmed its support of the Convention in House Report 108-130 explaining why the 1987 law was known as the Proxmire Act.

The Convention was submitted to the Senate for advice and consent to ratification in 1949. For many years, no action was taken on ratification in part because of unfounded fears that adherence to the treaty would undermine U.S. sovereignty. Senator William Proxmire was the leading proponent of ratification of the Convention. In reaction to the lack of movement by the Senate to give its advice and consent, Senator Proxmire vowed to speak every day on the need to ratify the Convention until the Senate took action. He made over 3,000 statements on the Senate floor urging ratification of the Convention. His commitment was so crucial to the ratification effort that the law is known as the “Proxmire Act”.

Consult SARA, the BLS Library catalog for further reading on the Genocide Convention where you will find The Genocide Convention: An International Law Analysis by John Quigley (Call # K5302 .Q85 2006).

The 2d Circuit Court of Appeals, in a 69 page decision, vacated the 75 year prison sentence of a Yemeni cleric (Sheik Mohammed Ali Al-Moayad) and the 45 year prison sentence of his assistant (Mohammed Zayed) imposed in 2005 by the Federal District Court in Brooklyn. The defendants were convicted of violating 18 U.S.C. § 2339B (a) (1), providing material support (primarily financing) to designated terrorist organizations (in this case, Hamas and Al-Qaeda). The Circuit Court’s reversal, stating that the defendants were deprived of a fair trial, detailed inadmissible evidence that the government erroneously presented in its case against the defendants.

The government’s case was based in large part on an FBI sting operation which relied heavily on the assistance of a confidential informant named Mohammed Al-Anssi, a Yemeni national who, in difficult financial circumstance, approached the FBI seeking compensation in exchange for information. According to the opinion:

Al-Anssi initially asked the FBI for 5 million dollars in exchange for his assistance, “hoping that it will go up, no problem.” He also requested United States citizenship and that his family be brought to the United States from Yemen. In describing his motive for seeking compensation, Al-Anssi testified, “the issue was the truth, the whole issue, and after I chase the terrorists and to bring him here to America, I deserve even 10 million dollars.”

Al-Anssi stated that he was paid $100,000 by the FBI for his assistance. However, he believed that he deserved millions, “[a]nd I expect more than that.” Al-Anssi admitted that, because he was upset about his small payment from the FBI, he falsely told the Washington Post that the FBI promised to pay him 5 million dollars. He also testified that in November 2004, in an attempt to coerce the FBI into paying him more money, he set himself on fire in front of the White House. With regard to this incident, Al-Anssi testified that he did not intend to commit suicide, but that he “wanted to put the government and the world on notice,” and that “[i]t is my right to get as much as I can from the FBI.”

Choosing not to call the confidential informant as a witness in its case in chief, the US Attorney instead presented the informant’s written notes and a series of video tapes that he made of the defendant Al-Moayad to prove that he was funding terrorist organizations. One of the tapes was of a speech given by a guest at a wedding in Yemen hosted by Al-Moayad where a Hamas related guest made reference to another wedding ceremony in Tel Aviv on the same day where a terrorist attack occurred.

The government also relied on the testimony of a young Scottish law student named Gideon Black that a suicide bombing occurred on a bus in Tel Aviv that same day. Black was a passenger on the bus along with his cousin Yoni, who was killed in the attack. Over defense objections that it was unrelated to the charges and highly prejudicial, the trial judge permitted Black’s lengthy and detailed testimony about the bombing.

The Circuit Court opinion lists other examples of how the Justice Department undermined its own case with questionable evidence, use of entrapment techniques and other sensational tactics. It implicitly criticized the trial judge, the Hon. Sterling Johnson Jr. saying:

The district court’s cumulated errors in admitting Al-Anssi’s notes and the testimony of Gideon Black and Yahya Goba “cast such a serious doubt on the fairness of the trial” as to warrant reversal of the defendants’ convictions. That doubt is especially grave when we also take into account the district court’s erroneous admission of the mujahidin form, the wedding video, and the Croatian last will and testament, as well as its questionable handling of the derivative entrapment issue.

In reversing the convictions, the appeals court in an unusual directive remanded the case “to the district court for further proceedings consistent with this opinion before a different district court judge”.

See the NY Times article on the ruling.

Yesterday, in a 67 page opinion, the U.S. Court of Appeals for the Second Circuit issued its ruling In re Terrorist Attacks on September 11, 2001 affirming the 2006 ruling by the late U.S. District Judge Richard Casey, In re Terrorist Attacks on September 11, 2001, 349 F.Supp.2d 765 (S.D.N.Y. 2005), which dismissed a lawsuit brought by survivors of the 9/11 attacks against the nation of Saudi Arabia and four of its princes. The Second Circuit ruled that the defendants were protected from prosecution under the Foreign Sovereign Immunities Act (FSIA). The plaintiffs accused the princes of donating money to anti-American charities, which then funneled the funds to al-Qaeda. Judge Jacobs summarized the holding, as follows:

We conclude that the FSIA protects the appellees – most obviously, the Kingdom iself. First, we hold that the FSIA applies to individual officials of foreign governments in their official capacities, and therefore to the Four Princes. Second, we affirm the district court’s conclusion that the [Saudi High Commission for Relief to Bosnia and Herzegovina] is an “agency or instrumentality” of the Kingdom, to which the FSIA likewise applies.

Further, we conclude that none of the FSIA’s exceptions applies. The plaintiffs’ claims do not come within the statutory exception for state-sponsored terrorist acts, 28 U.S.C. § 1605A (“Terrorism Exception”), because the Kingdom has not been designated a state sponsor of terrorism by the United States. As to the exception for personal injury or death caused by a foreign sovereign’s tortious act, id. § 1605 (a)(5) (“Torts Exception”), we decline to characterize plaintiffs’ claims – expressly predicated on a state-sponsored terrorist act – as sounding in tort. Nor do the plaintiffs’ claims come within the statutory exception for a foreign sovereign’s commercial activity, id. § 1605(a)(2) (“Commercial Activities Exception”), because the defendants’ specific alleged conduct – supporting Muslim charities that promote and underwrite terrorism – is not conduct in trade, traffic or commerce.

Accordingly, we agree with the district court that it lacked subject matter jurisdiction over the claims against the Kingdom, the Four Princes in their official capacities, and the SHC. We likewise affirm the district court’s dismissal of the claims against the Four Princes (in their personal capacities) and Mohamed for want of personal jurisdiction, and the denial of the plaintiffs’ motions for jurisdictional discovery.

For a legislative history of the Foreign Sovereign Immunities Act, see
Foreign Sovereign Immunities Act of 1976 with Amendments: a Legislative History of Pub. L. No. 94-583 compiled by William H. Manz, Call Number. KF1309.5 F67.

With the election campaign’s discussion of the contribution of veterans while in the military and patriotism, it’s of interest to note a Rules Change that the Department of Veterans Affairs (DVA) is proposing. The proposal (RIN 2900-AM74) seeks to amend 8 CFR Part 3 on the “Definition of Service in the Republic of Vietnam” in connection with claims from exposure to the herbicide Agent Orange. The DVA proposed the rule change last November after the US Court of Appeals for Veterans Claims (CAVC) decision in Haas v. Nicholson, 20 Vet. App. 257 (2006). That case involved a claim by a Vietnam Service Medal recipient for compensation under the Agent Orange Act of 1991. The CAVC overturned the DVA rule requiring Vietnam veterans to have set foot in the Republic of Vietnam to qualify for the legal presumption that they were entitled to compensation for exposure to Agent Orange.

In response, the DVA moved on three separate fronts to limit claims for Agent Orange exposure to only those Vietnam veterans who had “boots on the ground” in the Republic of Vietnam. In addition to the Rules Change, the DVA requested Sen. Akaka (D-HI) to introduce the Agent Orange Equitable Compensation Act (S. 2026) to “amend title 38, U.S. Code, chapter 11, to …clarify that the presumption of herbicide exposure provided by 38 U.S.C. 1116(f) applies only to veterans who served in Vietnam on land or on Vietnam’s inland waterways and not to those who served only in waters offshore or in airspace above.” That bill is pending in Committee on Veterans’ Affairs.

The DVA also filed an appeal of the decision by the CAVC. In May 2008, the Federal Circuit reversed the decision of the CAVC in Haas v. Peake, 525 F.3d 1168 (Fed.Cir. 2008) (Westlaw password):

We reverse the Veterans Court’s ruling rejecting the DVA’s interpretation of section 3.307(a)(6)(iii) of the agency’s regulations as requiring the service member’s presence at some point on the landmass or the inland waters of Vietnam. We remand to the Veterans Court for further proceedings consistent with this opinion. Before the Veterans Court on remand, Mr. Haas is free to pursue his claim that he was actually exposed to herbicides while on board his ship as it traveled near the Vietnamese coast. However, he is not entitled to the benefit of the presumptions set forth in 38 U.S.C. § 1116 and the corresponding DVA regulations, which are limited to those who “served in the Republic of Vietnam.”

The National Veterans Legal Services Program has filed a brief with the US Court of Appeals for the Federal Circuit requesting an en banc review, or a re-hearing of the Haas case. Interestingly, under the proposed DVA “Definition of Service in the Republic of Vietnam”, a pilot who became a POW and was held in captivity in the Hanoi Hilton would not be entitled to a presumption for receiving benefits for Agent Orange exposure.

A press release issued by Rutgers University announced the filing today (May 13) of a law suit, New Jersey Peace Action v. George W. Bush, in the Federal District Court in Newark, NJ challenging the legality of the war in Iraq. The plaintiffs include a group called New Jersey Peace Action and two leaders of the New Jersey chapter of Military Families Speak Out (MFSO), an anti-war organization of people with relatives or loved ones currently serving in the military in Iraq. The Rutgers Law School/Newark Constitutional Litigation Clinic filed the suit seeking a Declaratory Judgment that the preemptive war against Iraq by President Bush in 2003 violated Article I, Section 8 of the US Constitution, which assigns to Congress the power to Declare War. Half a dozen Rutgers Law School students have been working with Prof. Frank Askin and his colleagues in the past academic year studying the issues and preparing the law suit.

According to Askin, the Complaint relies on the annals of the 1787 Constitutional Convention, where the Founders deliberately denied to the president the power to wage war except in response to a sudden attack when Congress did not have time to act. The complaint cites a 19th Century Supreme Court ruling in Bas v. Tingy, 4 U.S. 37, (1800) holding that an all-out, or “perfect,” war could only be declared by Congress, but Congress could authorize the president to wage a quasi, or “imperfect,” war under strict limits as to scope and duration without a full-scale Declaration, as they did during the quasi-war with France from 1798 to 1800. Bas v. Tingy was the first major US Supreme Court test of the meaning of the power to wage war. It arose during President John Adams’ administration when the nation found itself in an undeclared sea war with France in the course of which one of our merchant ships had been captured by the French and then retaken by an American public armed ship. The case involved a suit by the owner of the merchant ship who challenged a 1799 law authorizing an award of half the value of his ship and cargo to a public armed ship that had retaken it from an enemy. The plaintiff argued that there was no declaration of war between the United States and France and that France could not be an enemy. The owner of the public armed ship of course took the opposite view.
The Supreme Court agreed with the owner of the public armed ship dismissing the contention that America and France were not at war because of the absence of a declaration. In Bas v. Tingy, the Supreme Court expanded the concept of constitutionally permissible war to include imperfect war. The next major test of the war powers cam in The Prize Cases, 67 U.S. 635 (1862) where the court shrank the concept of war to include blockades that occurred before the Civil War. The effect of this case was to restrict even further Congress’ exclusive franchise to declare or authorize it (as in Bas v. Tingy).

The Complaint acknowledges that earlier law suits challenging U.S. military actions without a Congressional Declaration since the end of World War II have failed in the lower federal courts. The Supreme Court has never held that the president may wage an all-out war against a sovereign nation in the absence of such a Declaration. The plaintiffs in this case face an uphill battle given the history concerning constitutional war powers. The federal courts will likely choose not to intervene, claiming that the disagreement between the president and Congress is a political question. Nonetheless, this will be litigation worth following.