Sunday, May 31, 2009

A plea letter to Congress members

The plaintiff of “Lin v USA ” - Roger Lin’s
Plea letter to Congress members

My name is Roger C.S. Lin, and I am the people of Taiwan . It is my belief that Taiwan belongs to the people of Taiwanese. However as a result of World War II in the Pacific, and the San Francisco Peace Treaty of 1952, the United States has administrative authority over my homeland. To the people of Taiwan , Taiwan is everything to us, including all of our wealth, and our means of sustaining our livelihood. If we lose Taiwan , we lose everything. I am here today in front of the members of Congress, and asking you to terminate Taiwan ’s status as an “international orphan.” From the Fall of 1945 to the present, the people of Taiwanese have been effectively “stateless,” and without an internationally recognized legal personality or proper identification documents. In late August and early September 2007 the US Executive Branch again confirmed that “Taiwan is not a country,” “the Republic of China is not a country,” “Taiwan is not part of the PRC,” “Taiwan cannot be independent,” and “Taiwan cannot join the United Nations.” And the Appeal Court of United States on April 7 2009 “the people of Taiwanese without a States” After hearing these announcements, most Taiwanese people were shocked, and felt that their dignity had been insulted. We Taiwanese have not been able to join the World Health Organization, or, in most instances, other international organizations, and to most people this is all very puzzling. So, I want to ask the distinguished members of Congress today, what should we do about this problem?

The Shanghai Communique of 1972 says:

The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China . The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves ……

Myriad scholars and researchers have pondered the true meaning of these convoluted phrases in the Shanghai Communique of 1972. In fact, the real intention of this phraseology is to put the non-sovereign entity of Taiwan on a "flight path" for a future unification with the PRC. The US Executive Branch chose this strange method in order to avoid its true legal obligations to the Taiwanese people. Those obligations arose out of World War II in the Pacific. As a result, the Taiwanese have suffered a long series of human rights abuses over the last sixty years.

Speaking of this pre-determined "flight path, Taiwan's March 2006 decision to eliminate its "Reunification Council" shows a strong desire to deviate from this arrangement, and hence was a matter of grave concern to the US Executive Branch, especially the Oval Office and the Dept. of State. Contrastingly, many members of Congress supported Taiwan 's decision to eliminate its Reunification Council and to proceed along a more democratic path for its future development. Remember, The people of Taiwanese are not Chinese in exile.

Although the US President and the Congress are frequently 180 degrees apart in their views on how to deal with Taiwan , at the present time the US President is using his plenary power over foreign affairs to deal with the " Taiwan question," and so he controls US policy on this issue. Although many members of Congress are supportive of the Republic of China ’s efforts to promote deeper democratic development in Taiwan , nevertheless continued support of the government in exile “Republic of China ” is not, in fact, helping the Taiwanese people.

The members of Congress have not yet comprehended that is Taiwan an overseas territory of the United States , and hence the US Executive Branch’s decision to put Taiwan on a "flight path" for unification with the PRC is a deprivation of the US Constitution' s Fifth Amendment "due process protections" to the Taiwanese people. That is something that the Congress should be sorely concerned about.

What are due process protections? A fundamental requirement of due process is "the opportunity to be heard." It is an opportunity which must be granted at a meaningful time and in a meaningful manner. Were the Taiwanese people consulted during the drafting of the Shanghai Communique? The answer is No.

US Constitutional Protections for the Taiwanese

Are the Taiwanese people entitled to US Constitutional protections? They certainly are. During the period of WWII in the Pacific, Taiwan was acquired by the United States based under the principle of conquest.

In the post-war Senate-ratified San Francisco Peace Treaty (SFPT), Japan renounced the territorial sovereignty of Taiwan , but no recipient nation was designated. Hence, Taiwan has remained under the jurisdiction of the United States (the "conqueror" and the "principal occupying power") up to the present day. The civil rights and political status of the inhabitants of Taiwan are a subject over which the US Congress has legislative authority, but so far no members of Congress have woken up to this fact.

This is further explained as follows. The 1901 US Supreme Court case of Downes v. Bidwell confirmed previous Supreme Court rulings on the subject to say that, "The power to make acquisitions of territory by conquest, by treaty, and by cession is an incident of national sovereignty. "

All military attacks against Taiwan during the WWII period were made by US military forces, so it is clear that as a result of the Pacific War the United States has acquired Taiwan under the principle of conquest. The disposition of Taiwan must be conducted according to the laws of war.

Up until the coming into effect of the SFPT on April 28, 1952, the Commander-in- Chief dealt with the Taiwan question based on his war powers over occupied territory. Military occupation is conducted under "military government," and as "the occupying power" as spoken of in the laws of war, the United States delegated the military occupation of Taiwan to the Chinese Nationalists.

In the SFPT, Japan gave up all rights to the territorial sovereignty of Taiwan , but no recipient was named. Hence, the United States ' acquirement of Taiwan was confirmed, but Taiwan remains subject to the President's war powers under United States Military Government.

The constitutional basis for this methodology is easily verified by reading Blackstone's Commentaries on the Laws of England, which was an important reference used at the US Constitutional Convention in Philadelphia in 1787. All of the territories Blackstone lists as dominions are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on.

To apply Blackstone's reasoning to the United States , we need merely substitute "federal government" for "Crown," and the meaning becomes clear.

US Congressional Authority over Taiwan

Importantly, for acquired territory, "Congress shall have powers to dispose of and make all needful rules and regulations . . . . . " in accordance with the territorial clause of the US Constitution (Article 4, Section 3, Clause 2). In the history of territorial acquisitions by the United States, the civil rights and political status of native persons therein have always been deemed to be subject to determination by the US Congress.

Downes v. Bidwell also confirmed that "fundamental constitutional rights" apply in all US overseas territories. The Fifth Amendment protections to life, liberty, property, and due process of law are fundamental rights under the US Constitution.

The ROC and the One China Policy

Many people claim that the ROC in Taiwan is unfairly restricted from participating in international organizations because of the internationally accepted "One China Policy." Numerous highly-paid political commentators are quick to point out that the "One China Policy" is a fantasy, since Taiwan is a growing and developing democracy.

However, "One China " is not a fantasy. The only fantasy in the complex riddle of the " Taiwan question" is that the "Republic of China " (ROC) is holding Taiwan 's "territorial sovereignty. "

Again, this is easily analyzed from the viewpoint of military jurisdiction under the US Constitution. After liberating Taiwan in the Pacific War, the United States delegated the military occupation of Taiwan to the Chiang Kai-shek (the Chinese nationalists) . In the post-war San Francisco Peace Treaty, the territorial sovereignty was not awarded to the ROC. So in fact, Taiwan territory is still subject to the jurisdiction of the United States . The SFPT clearly specifies that the United States is the "principal occupying power." For a territorial cession, the military government of the principal occupying power does not end with the coming into effect of the peace treaty.

After considering these facts, it is clear that the One China Policy as espoused by the United States is correct, but China is China and Taiwan is Taiwan . The ROC on Taiwan is merely a subordinate occupying power (beginning October 25, 1945) and a government in exile (beginning December 1949).

In other words, the ROC is not the legitimate government of Taiwan . This is the real reason why the US government refuses President Chen's request for transit rights through mainland US cities on his trips to visit diplomatic allies in Central and South America . One such example was the refusal to grant transit rights through San Francisco and New York during his early May 2006 trip to Paraguay and Costa Rica . As more and more people in Taiwan have begun to complain to the Commander-in- Chief and the US Dept. of State in the last year, the officials of the Executive Branch are choosing to distance themselves from the rebel ROC regime in every way possible.

The USA-Taiwan-China Relationship

The People's Republic of China often boasts that it is the sole legitimate government of China , and as the successor government to the ROC, it has ownership of Taiwan territory. However, this argument quickly evaporates when we realize that the ROC does not own the "territorial sovereignty" of Taiwan . This was forcefully clarified by former Secretary Powell on October 25, 2004 in a press conference in Beijing , when he said, " Taiwan does not enjoy sovereignty as a nation."

Commentators in the international media have yet to begin to discuss all of these legal complexities surrounding the USA-Taiwan-China relationship. Meanwhile, the record shows that the US Executive Branch has trampled on the constitutional rights of the native Taiwanese people for over fifty-five years in the name of political expediency, and continues to do so here in 2009.

According to the Taiwan Relations Act, the terminology of "Republic of China " is not recognized under US law after January 1, 1979. Since Taiwan has never been officially incorporated into the territory of the Republic of China , strong arguments can be made that the mass naturalization of native Taiwanese persons as "Republic of China citizens" in January 1946 is without legal basis, in fact it is a war crime perpetrated by the Chiang Kai-shek regime.

Clearly, the best way for the Taiwanese people to insure that they can continue to develop along the democratic path is to get the handling of the " Taiwan question" out of the Executive Branch, and into the US Congress. Under the territorial clause of the Constitution, the members of Congress do indeed have jurisdiction over the civil rights and political status of native persons in Taiwan . That means that the members of the US Congress can give the Taiwanese people what they really want – authorization to call a Constitutional Convention and draft a new Taiwan Constitution under United States administrative authority.

Roger Lin
Plaintiff of “Lin v USA ” 05/29/2009

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