IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Dr. Roger C.S. Lin, et al., Petitioners
v.No. 08-5780
United States of America, Respondents
UNDER SEAL (Petitioner under treason investigation by the Taiwan High Court)
ORAL ARGUMENT HELD AND DECIDED
MOTION FOR RELIEF FROM OR TO SET ASIDE JUDGMENT PURSUANT TO FRCP RULE 60(a) and (b) and/or treating the underlying cause as a habeas petition and this motion as a PETITION FOR THE WRIT OF ERROR, CORAM NOBIS AND MOTION TO FILE SAID PETITION NONCONFORMING TO THE RULES OF THE COURT, AND WRIT OF PROHIBITION PURSUANT TO THE EIGHTH ARTICLE OF AMENDMENT TO THE US CONSTITUTION PURSUANT TO THE RATIO DECIDENDI OF Kazuo v. ROP, 1 ROP Intrm. 154 (1984), AS APPLYING TO FORMOSA, UNDER US MILITARY CONTROL, REGARDLESS OF SOVEREIGNTY OR TERRITORIAL STATUS ISSUES OR HOW SAID CONTROL IS DEPLOYED OR EXERCISED, FOR ORDERS DIRECTING THE US MILITARY GOVERNMENT FORMOSA TO ENSURE THAT NO TREASON INVESTIGATION CARRYING A MANDATORY STATUTORY PENALTY OF DEATH OR LIFE IMPRISONMENT PROCEED AGAINST FORMER US MILITARY GOVERNMENT CIVIL ADMINISTRATOR SHUIBIAN CHEN OR ROGER CS LIN OR ANYONE ASSOCIATED THEREWITH, AND TO ORDER THAT THE SENTENCE OF LIFE IMPRISONMENT FOR EMBEZZLEMENT AND RELATED PUBLIC CORRUPTION CHARGES AGAINST SHUIBIAN CHEN IN HIS CAPACITY AS FORMER PRESIDENT OF THE REPUBLIC OF CHINA CENTRAL GOVERNMENT IN EXILE ON FORMOSA IS TO BE DIRECTED WITHDRAWN BY THE US MILITARY GOVERNMENT FORMOSA AS CONTRARY TO THE EIGHTH AMENDMENT BAN ON CRUEL AND UNUSUAL PUNISHMENT
Comes Now the Petitioners to petition this Honorable Court to ameliorate the frauds perpetrated on the Court by the Respondent United States through their Attorneys, and aid the Court thereby in correcting the problems attendant to her consideration of the matter whereby Melissa Patterson, Esq. and the USA were “creating an information deficit for determining the status of the people” (Lin v US USCA DC Cir 08-5780). When the US conquered Japan in the Pacific and the Allies occupied Formosa, their relations were an inchoate joint tenancy (of the severalty or with rights of survivorship) in fact and the law of war (see the Sino(ROC)-Soviet Treaty and its subsidiary civil affairs agreement for the northeast Chinese provinces admitting the superior command authority of the Soviets in liberated areas/putative Chinese territories liberated by and occupied by their force,viz: frus.frus1945v07.i0025.pdf, frus.frus1944v06.i0022.pdf, (the civil affairs agreement between the Republic of China and the Principal Occupying Force of the liberated area, the Soviet Union), (recognizing that civil authorities and civil officers in jointly occupied areas are under control of the principal occupying forces, (recognizing secession by plebiscite of people of Outer Mongolia from China seeking independence)), thus upon the death of the Republic of China as a result of the Chinese civil war in China, and loss of the mainland area to the PRC or New China, the China of the Cairo Declaration no longer legally existed as a Chinese state or sovereign state, and the title of the liberated area under joint tenancy occupation was then escheated by operation of fact and law or transferred to the United States military government as the sole proprietor, but to maintain the appearance of continuity of operations, things as usual, and social face and goodwill prestige of the business, the operating names were not changed, and hence the Republic of China on Formosa, with respect to the Formosa liberated area, is but the means by which and name through which the US exercises her duties of administration as implicit trustee thereof as recognized in Article 4(b) of the SFPT reposing ultimate independent control and dispositive powers within the US over the Formosa liberated area.As a result of those proceedings the Taiwan authorities have ordered Dr. Roger CS Lin to an inquiry on accusations of treason levied against him and the former President, Shuibian Chen, (which carry mandatory penalty at conviction of death or life imprisonment, rendering the statute on its face unconstitutional for US military government anywhere, including on Formosa, pursuant to the 8th amendment as explained in Kazuo v. ROP, 1 ROP Intrm. 154 (1984), additionally the sentence of life imprisonment for public corruption charges against Shuibian Chen should be vacated as also violating the 8th amendment, and that ROC is merely alter ego name for the US, see Alig v. Trust Territory, 3 T.T.R. 603 The Trust Territory of the Pacific Islands appears to be quite definitely of a dual nature. It is certainly the means by which the United States carries out the major part of its responsibilities as administering authority under the Trusteeship Agreement and its activities were included in the annual reports of the United States' administration of the territory made by the United States to the Trusteeship Council.)
For the lawsuit and affidavits of Chen claiming to have been in fact the US de facto civil administrator for the US military government Formosa, by the KMT ‘s Secretary General and legislative caucus and implicitly by the Justice Minister as well. Clearly such extraordinary circumstances warrant the Court’s waiver of the rules to accept this petition without conformity thereto, especially since the rights, privileges and immunities of ten million putative native Formosan Americans (residing in political purgatory under the rule of an American Manchukuo puppet regime alter ego administration on Formosa, subject to the threat of charges of treason and a mandatory life imprisonment or death penalty sentence) under our Constitution and laws remain at stake. Just as Judge Patel in Korematsu provided coram nobis relief thirty years after the wrongs our nation did to one of our own solely on the pernicious and condemnable grounds of race (and rightly condemned by Mr. Justice Jackson in his scathing SCUS dissent therein), so too this Court should undo the harms caused by the US constitutional torts against the native Formosans to secure to them the blessings of life, liberty and property free from the genocide and crimes against humanity and war crimes committed under color of US authority over Formosa as acknowledged by Randy Schriver, former Deputy Assistant US Secretary of State, stating: “Consider the counter-factual: a scenario where senior US policymakers in the departments of state and defense, the National Security Council and its staff and the offices of the vice president and president are steeped in the history of 228. In such a case, there would be wide recognition among US officials that as many as 30,000 innocent people lost their lives in the crackdown by Chiang Kai-shek's (蔣介石) regime simply because of their ethnicity or political views.
Further, senior US officials would know that Taiwanese lived the next 40 years after 228 not being allowed to speak their own language, study their own history and honor those who were sacrificed as a result of 228. In such a counter-factual world, would senior US officials have a different view of the Taiwanese desire to replace a Constitution that had been promulgated by the regime responsible for 228 and the oppression that followed?
======the following issues of “compensation” ares perhaps outside the realm of topics which Dr. Lin wants to address at this time ====
Would there be a different view of the desire to rename streets and remove statues that honor a regime responsible for such suffering? Petitioners pray the Court forward this statement of Randy Schriver with a request that the Attorney General initiate a civil rights crimes investigation, and to the Secretary of Defense and President for their action regarding the military law liabilities and responsibilities involved, and to the Congress with a view towards their conduct of hearings in these regards to determine how the US will process the claims of the victims and the descendants to justice and full and fair compensation of all their losses under color of US superior command authority from 1945-1949-1952, and thereafter pursuant to the status quo of Formosa ceded in trust to the US under the Peace Treaty with Japan and solely under our independent dispositive control.
======
ORAL ARGUMENTS Feb. 5, 2009 US Court of Appeals
In reply to the Court’s question, “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?”, in oral argument, Counsel for the US falsely stated: “ 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.”
Hartzell’s note: the entire history of the United States military occupation of Calif., Guam, Cuba, Philippines, and Puerto Rico (all of which were “territorial cessions”) clearly shows that the military government jurisdiction of the (principal) occupying power continues past the point in time when the peace treaty comes into force. In fact, the end of military government is always made by an announcement of the US Commander in Chief. See --
This sort of legal reality was totally ignored by Ms. Patterson. Couldn’t this be regarded as misrepresentation of the historical and legal facts?
THE COURT: Are there any other examples, or is that sufficient?
MS. PATTERSON: I think that's sufficient, YourHonor. 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 – [Petitioners are claiming the treaty recognizes their rights under US Insular Case and Constitutional law and the UN Charter as peoples ceded in trust to the US and under her protection as wards pending self-determination, owing their permanent allegiance to the US]
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 should find that the US has conceded the status of Principal Occupying Force over Formosa, or that Ms. Patterson has misled the Court, warranting the writ of error relief here, or note her obfuscation of the Treaty and Court’s Principal Occupying Force with the lower case administering authorities in situ as a principal occupying force (alter ego of the US)]
08-5780
Once the Executive determines Taiwan's sovereign, we can decideAppellants' resulting status and concomitant rights expeditiously.Baker, 369 U.S. at 212 ("[T]he judiciary ordinarily follows theexecutive as to which nation has sovereignty over disputed territory,once sovereignty over an area is politically determined and declared,courts may examine the resulting status and decide independentlywhether a statute applies to that area."). [POTUS and SOS have said that the SFPT and MDT clearly establishes that the US is the sovereign over Formosa, the MDT remains alive in spite of Goldwater v Carter because Palau has not determined to terminate the MDT obligations of the US which Palau acceded to on independence and which remained inchoate pending her self-determination, now Palau has ceded her international defense obligations, including to defend Formosa under the MDT, to the US which remains bound to discharge for Palau her duties to Formosa under the MDT]
True enough. However, under the interpretation of thepolitical departments to whom we must defer in such matters, Pearcy v.Stranahan, 205 U.S. 257, 265 (1907) (deferring to "the interpretationwhich the political departments have put upon [a] treaty" whenresolving a question of sovereignty), it remains unknown whether, byfailing to designate a sovereign but listing the United States as the"principal occupying power," the SFPT created any kind of sovereigntyin the first place. [But see the FRUS extensive documentation wherein the POTUS and SOS assert actual present independent control in the US over the matter of the disposition of Formosa, the sine qua non of sovereignty, and explicitly stated in Article 4(b) of the SFPT. This remained “unknown” because the US failed to apprise the Court of this extensive and important evidence affecting the US nationality claims under the 14th amendment and Insular Cases and UN Charter for ten million wards of the US]
We do not dictateto the Executive what governments serve as the supreme politicalauthorities of foreign lands, Jones, 137 U.S. at 212; this ruleapplies a fortiori to determinations of U.S. sovereignty. [ BUTsee Matter of Cantu, Val Monte v INS, Rabang v INS, Rabang v Boyd, Dred Scott v Sandford, Worcester v Georgia, Arikawa v Acheson, Wong Kim Ark, Sabang v Powell, Kozminski v US, all involve courts determining the extent of the 14th amendment meaning of within the United States or the 13th amendment meaning of subject to the jurisdiction of the United States, also Article III reposes original jurisdiction in the Court over boundary disputes among the states. Additionally, numerous US Supreme Court rulings have held that that “military government is an exercise of sovereignty,” and/or have quoted from authoritative sources to that effect. ]
As counsel forthe Government aptly put it at oral argument, the gravamen of theCourt's decision centered not on the de jure reach of theConstitution, but on the limitations that adhere to the United States'actual exercise of power over non-citizens detained in a foreignterritory. Appellants do not assert, nor could they, that the UnitedStates exercises actual control over the people onTaiwan. [Now appellants can show actual persistent pervasive de facto and de jure control of the US over Formosa]
Congress, not a court, declared the Filipino population was "entitledto the protection of the United States" based on the United States'sovereignty over the Philippines. See Rabang v. Boyd, 353 U.S. 427,429 (1957).
[But too Congress passed the Defense of Formosa Act and ratified the MDT in 1955 to replace the EO and passed the TRA in 1979 ... all evincing US de jure authority to do so]
US courts which considered permanent allegiance claims have done so only for aliens admitted for lawful permanent residence to the US... and have held they are not statutory noncitizen nationals... these cases are inapposite authority to the 14th amendment claims to US noncitizen nationality of the petitioners who the government cannot show to be aliens (Petitioners are not subjects of any foreign sovereign, and the US cannot show that Petitioners are indeed subjects of any foreign sovereign, see Haruko v Acheson, Arikawa v Acheson which state that Formosa (included within de jure Japan) prior to the Japanese Peace Treaty was not foreign to the US).
THE COURT: Can you cite me any examples in history where the United States has been the principal occupyingforce of a territory and the residents of that territory were entitled to passports from the United States or otherrights. (native Americans like Hampa at Odessa were issued letter of protection in lieu of a passport because the US occupied their territories even though they were not citizens of the US under the 14th amendment, so too in matter of passport application of Nespar Humper or Bended Moccasis, and conquered territories before incorporation into the US such as California, New Mexico, Georgia all issued passports through their secretaries of state or by the US for residents therein,American Samoa, Puerto Rico, the US Virgin Islands, Guam, the TTPI before the UN trusteeship agreement was signed and the mandated areas of Japan were US liberated areas under military government for the US (same as the Formosa liberated area prior to the SFPT cession in trust to the US which Article 4b recognized had the ultimate powers of disposition thereover, and which Japan is stated as recognizing, meaning Japan knows they are transferring the power of disposition of Formosa to the US by Article 4b of the SFPT and which the administering authorities on Formosa are subject to under Article 4a and by virtue of the US as Principal Occupying Power) )