Wednesday, April 08, 2009

Hartzell and Lin lose on appeal

I was going to round up the economic news, with this excellent piece from Taiwan News on the ECFA framework and how poor the government's case is for it as the centerpiece of the blog post, but after reading all the ugly news, from real estate investment at 2 year lows, to the 37.5% drop in exports last month, I was a candidate for therapy.

Fortunately, a friend flipped me the decision of the appeals court in the case of Hartzell and Lin v. US over whether the US has some kind of sovereignty over Taiwan (previous blogpost with plenty o'links). Lin et al have lost their case, on the grounds I noted in the earlier post, that the question of sovereignty over Taiwan is a political question to be decided by the other branches of government. The Court makes its point (my emphasis):
Appellants argue this is a straightforward question of treaty and statutory interpretation and well within the Article III powers of the court. It is and it isn’t. The political question doctrine deprives federal courts of jurisdiction, based on prudential concerns, over cases which would normally fall within their purview. National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). We do not disagree with Appellants’ assertion that we could resolve this case through treaty analysis and statutory construction, see Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986) (“[T]he courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts.”); we merely decline to do so as this case presents a political question which strips us of jurisdiction to undertake that otherwise familiar task. See Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C. Cir. 2006) (“We need not quarrel with the plaintiffs’ assertion that certain claims for torture may be adjudicated in the federal courts as provided in the TVPA. We simply observe that such a claim, like any other, may not be heard if it presents a political question.”).
The Court's decision is not without a certain wry humor:
Identifying Taiwan’s sovereign is an antecedent question to Appellants’ claims. This leaves the Court with few options. We could jettison the United States’ long-standing foreign policy regarding Taiwan—that of strategic ambiguity—in favor of declaring a sovereign. But that seems imprudent. Since no war powers have been delegated to the judiciary, judicial modesty as well as doctrine cautions us to abjure so provocative a course.
...and the final paragraph:
Addressing Appellants’ claims would require identification of Taiwan’s sovereign. The Executive Branch has deliberately remained silent on this issue and we cannot intrude on its decision. Therefore, as the district court correctly concluded, consideration of Appellants’ claims is barred by the political question doctrine. Accordingly, we affirm.
Good job, judges.

UPDATE: PDF of decision is online.

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29 comments:

Anonymous said...

Hurray! Taiwanese people maintain their sovereignty over THEIR island. It is hard enough with China trying to annex Taiwan... the last thing we need is the USA getting in on the action.

Anonymous said...

Sovereignty is such a funny question. From the perspective of Taiwan, who cares about what US courts think about the sovereignty of Taiwan--we're sovereign after all.

Thomas said...

"Hurray! Taiwanese people maintain their sovereignty over THEIR island."

If only it were that simple. All the court said was that it didn't have the right to assign a sovereign, and with this, I too concur.

realtaiwan said...

U.S. has been in the "action" from the beginning already and will be so in the future.

Hartzell and Lin lost the case, but also proved a point: What they have been advocating is right. America is responsible for Taiwan's past and future.

I am confident that I will see what Taiwan will become in my life time.

Michael Turton said...

Sovereignty is such a funny question. From the perspective of Taiwan, who cares about what US courts think about the sovereignty of Taiwan--we're sovereign after all.

I care. Can you imagine the harm that could be done if the US thought it had sovereignty over Taiwan? We've already seen the harm resulting from an identical delusion of China's.

Michael

Anonymous said...

"Hartzell and Lin lost the case, but also proved a point: What they have been advocating is right. America is responsible for Taiwan's past and future."

They proved that, contrary to what they had been advocating for many years, the issue as it concerns the United States, is a political one and the US judicial system wants no part in assigning Taiwan's sovereignty to anyone IN THE OPINION OF THE USA. We have been saying that for a long time.

This movement has been a sham from the beginning and, while some from their group talked a good game, their grasp on the issue was weak or they only chose to see their own construction.

For people who have been following this group for many years, we have seen them shun any critical debate on the issues and we have seen them develop an archive of canonical material to which they devoutly and unquestionably adhere to and Quixotically defended.

This attitude and behavior isolated them from responsibly analyzing their case and, unfortunately, they sucked many people into the fantasy. Even worse, they solicited donations from people who were looking to support Taiwan. On many instances they acted to suppress information that, if viewed critically, might cause their supporters and observers to question their strategy and possibly interrupt the flow of donation money.

In the latter part of this long saga this group took a very dark turn that began resembling the authoritarian thinking many of us have been fighting for a long time. We saw this group become increasingly defensive and paranoid. Many of their members took it upon themselves to attack other individuals and groups which did not support their cause. It became a shameful disgrace as adherents slapped pejorative labels upon everyone who questioned their "truth" and methodology.

In one particular case the most active members in this group openly expressed their wish to see American martial law enacted on Taiwan for 50 years to "re-educate" the "brainwashed Formosans" and chase out the "Chinese bandits". This is sickening behavior that should never be tolerated. We should not engage in defining who is and isn't an "authentic" Taiwanese or who is "tainted" by their colonial experience.

Most of all, we have never heard this group commit to an independent Taiwan or commit to the right of self determination. At every opportunity, this group and its members sought to counter and undermine any action that would increase Taiwan's international and political space. Every request to obtain a frank "yes" or "no" answer on support for Taiwan Independence was met with silence.

This shameful sideshow has been a distraction for too long and I hope we can now, at this juncture, move on with a more united voice in support of Taiwan.

realtaiwan said...

If U.S. would admit holding the sovereinty, it would be able to help wipe out the corruptive government-in-exile and the network in due time when Taiwanese are embracing the U.S. interference.

I see the root of all problems in Taiwan stemed from the government-in-exile which never owned the sovereignty.

Any way I look at it, the days of ROC are numbered.

Anonymous said...

"America is responsible for Taiwan's past and future."

I'm pretty sure most Americans would disagre with that sentiment.

Readin said...

Can you imagine the harm that could be done if the US thought it had sovereignty over Taiwan?

Given US apathy toward democracy and freedom in Taiwan combined with recent US servile attitude toward China, the best we could hope for is that the U.S. would immediately abandon sovereignty of Taiwan without saying who we're giving sovereignty to (just as the Japanese did when they formally relinquished sovereignty of Taiwan). Worst case the U.S. would negotiate a deal with China where we give China sovereignty of Taiwan to China in exchange for a few more billion in loans.

Either way the U.S. would be shooting itself in the foot and a friend in the back.

Anonymous said...

Michael is on a roll with the op-eds this week!

Anonymous said...

"Michael is on a roll with the op-eds this week!"

I'd love to answer that misguided jerk-off in the comment section, but I don't want to subscribe to the WSJ.

Anonymous said...

If U.S. would admit holding the sovereinty, it would be able to help wipe out the corruptive government-in-exile...

LOL! The US has always supported the KMT, and still does! Wipe it out? I don't think so.

Given US apathy toward democracy and freedom in Taiwan...

Perhaps it's our expat wont that we think fellow Americans show more care about it's Asian demo ally. I challenge you to prove that most Americans even know what or where Taiwan is.

Now if you tell them there's a place called "Ihla Formosa..."

Anonymous said...

"it would be able to help wipe out the corruptive government-in-exile"


If the Taiwanese didn't want this system they could do something about it. It is up to Taiwanese to decide if corruption is "tolerable", or if it constitutes corruption at all.

Does anyone remember how much the Iraqis begged for "democracy"? I am still not clear if that is what they want or if that is what they are stuck with. America wanted "democracy" for Iraq... not the Iraqis... and now look.

It is up to the people to decide the course of action needed to represent themselves in the manner they see fit. If Taiwanese want gangsters... fine! If they don't want democracy... fine! Letting the people freely decide is the solution, not American paternalism.

realtaiwan said...

America physically helped moved close to 2 million Chinese to Taiwan, started the sad history which is still developing under America's heavy influence.

The fact most Americans don't know this part of history doesn't mean things didn't happen.

A lot of times, things can't change without outside help. The analogy of Iraq and Taiwan doesn't compare apple with apple.

I guess North Koreans and Burmese really love their leaders, otherwise, they would have topple the dictators already, RIGHT?

Anonymous said...

"In the latter part of this long saga this group took a very dark turn that began resembling the authoritarian thinking many of us have been fighting for a long time. We saw this group become increasingly defensive and paranoid. Many of their members took it upon themselves to attack other individuals and groups which did not support their cause."

I have seen this too.

The leaders of this movement really never stepped forward to condemn the bad behavior of their followers. They just remained aloof, when, as leaders, they should have tried to rein in the hate. In silence they are tacitly lending support to these sick ideas.

Robert R. said...

"Now if you tell them there's a place called "Ihla Formosa...""

They'll probably tell you that they're big fans of Madonna.

Thomas said...

"Does anyone remember how much the Iraqis begged for "democracy"? I am still not clear if that is what they want or if that is what they are stuck with."

You ignore the fact that, in democracies, many interests are in contention, and usually there must be compromise. So everyone in a country can want democracy, or at least say they do. And once the result is attained, the majority can still be unhappy with the result. You also ignore the issue of entrenched interests, which make it difficult to wipe the slate clean with every election: Witness the Obama phenomenon.

Karl said...

"For people who have been following this group for many years, we have seen them shun any critical debate on the issues and we have seen them develop an archive of canonical material to which they devoutly and unquestionably adhere to and Quixotically defended."

Mr. Anonymous, please sign me up for your newsletter. Or blog. Or whatever.

Anonymous said...

You might consider linking to and excerpting your published editorials for publicity.

The two comments on Wall Street Journal Asia were downright scary.

It's like Orwellian double speak: calling Ma and the KMT Chinese nationalistic policies pluralistic! Saying that Taiwan is self-governing but not a country! Justifying that Taiwan is not a state based on how the map should look like...

Anonymous said...

Letting the people freely decide is the solution,--

yeahh let the people decide about. for example people of Philippines where chinese maffia clans running their bussines from Taiwan and chinese mainland.

Readin said...

Given US apathy toward democracy and freedom in Taiwan...

Perhaps it's our expat wont that we think fellow Americans show more care about it's Asian demo ally. I challenge you to prove that most Americans even know what or where Taiwan is.

Now if you tell them there's a place called "Ihla Formosa..."


I should have said "official" US apathy. In regard to the American people, as with so many international issues, most Americans just aren't up to speed. Few live close to an international border. No single country dominates our trade the way the US dominates trade with so many other countries. The ants worry about the elephants steps while the elephant ignores the ants.

I'm not an expat now. I live in the U.S. in one of the more immigrant heavy areas. If anyone in the US should know and care about international issues, it should be the people here. Yet most have no clue about Taiwan. They get it confused with Thailand. Older people think of it in Cold War terms as part of China that escaped Communism, completely unaware that it was under Chinese rule for only 4 years before 1949. Younger people know even less.

Readin said...

Congratulations on the WSJ article Mr. Turton! I haven't read the whole thing yet, but just getting a non-Chinese point of view about Taiwan in a major newspaper is a welcome change. WAY TO GO!

vin said...

"I'd love to answer that misguided jerk-off in the comment section, but I don't want to subscribe to the WSJ."

Just what the Wall Street Journal is looking for, I'm sure: name-calling in lieu of argument.

Anonymous said...

Well vin.. I'd actually put an argument together, but I can call him a jerk-off here. It's not the same thing.

Like saying, "the president is a shit head" and writing
"Dear Mr. President, I find your current policy on XYZ lacking the foresight ... etc."

I can still think he is a shit head, but I don't have to say it is so few words. This is a blog comment section and I can still say I think he's a "jerk-off" without writing it in a formal opinion page. See?

vin said...

Umm... no, I don't see. What does calling someone a jerk-off or a shithead accomplish? Will it persuade anyone to see the other person's argument in a different light? I don't get the relevance of name-calling. And if we're going to be irrelevant, why not at least put up something interesting like the first paragraph of "Moby Dick"?

You say you have an argument. So why don't you make it? This blog may be low in readership compared to the Wall Street Journal, but you will still be reaching hundreds of people.

Robert R. said...

vin: My guess is that he doesn't want to preach to the choir. While not everyone is exactly on the same page, few have made point similar to the comments at WSJ, and none on this thread.

Anonymous said...

Comments for the WSJ Comment "jerk-offs".

For Michael Lowsen’s comment:

1) The “Huaqiao” groups around the world are the result of the Chinese nationalist movement. They are political organizations as extensions of the state apparatus. They are financed with state funding and even have political representatives in Taiwan. In essence, these groups work to promote Chinese nationalist goals abroad. 2) The United States does not “recognize” Beijing’s claims to Taiwan. The United States “acknowledges” Beijing’s claims; a vast difference in diplomatic language. Taiwan IS a sovereign state officially called the Republic of China. There were sovereign states before the United Nations was established and therefore it is not necessary to have the United nations blessing to be minted as a sovereign state. You just need their permission to enter their club. There are twenty plus nations that recognize Taiwan as a sovereign nation. In practice, the agreements between Taiwan and most other nations in regard to banking, commerce, trade, criminal justice …etc, recognize Taiwan’s defacto sovereignty. 3) It all depends on who is making the maps. Some maps use different colors and font sizes. There is no universal map.
For Christoper Martin:
1) Point made above. The United States “acknowledges” and that’s as far as that goes.

For Fangyan Lin:
1) Fangyan Lin has a very inadequate understanding of the nature of Chinese nationalism and the foundations of the Republic of China. Sun Yat-sen ideology is in part, a synthesis of 19th century Euro-American racialism, selected folk beliefs of certain Han groups, and anti-Manchism. At the heart of Sun’s writing we can see a belief in “advanced” peoples vs. “degraded” peoples. Sun positioned the Han in the category among whites as superior. He then delved into biological determinism and decreed that the “browns and the blacks” were degraded peoples who were lacking the biological tools necessary to become anything but a “lower order “ of man. The myth of “Chinese” racial homogeny was deployed by the early nationalists to erect an artificial barrier between the Republicans and the Qing Manchu dynasty denying the Qing their mandate to rule. The early nationalists also hoped to use this language to woo members of the anti-Manchu secret societies for support. The promise of a Han Chinese nations appealed to these groups. The next part is that the Chinese nationalist movement had originally been a modernist movement and positioned the Han Chinese as the modern, while everyone else was lacking the same “quality” of “development”. We are seeing this play out in Tibet right now as China defends its colonial project in Tibet by listing the many ways it has “developed” the area and freed the Tibetans from a “backward” way of life. The PRC routinely implies a shared ancestry between Han and non Han, but the concepts of non-Han inferiority, focused mainly on the belief in a superior Han intelligence. The racially based meta histories promoted by the two Chinese nationalist states compound this problem.
In Taiwan we have seen this play out with a strong, centralized definition of “Chineseness”, defined by the state. The KMT regime defined “Chinese” and sought to eliminate the elements that it viewed as “backward”. The dichotomy between “forwardness” and “backwardness” is a scale constructed and enforced by the civilizer to validate his civilizing/colonial project. This project is especially prevalent in the education system as it seeks to acculturate the “citizens” to conform to state culture.
Ma is very much a product of the Sunist/Han Chauvinist tradition. A very revealing episode occurred a few months ago, when Ma was speaking to a group of indigenous Taiwanese, he lectured them on their behavior in the cities, saying, "I see you as humans and as citizens of this city. I'm going to educate you well and do a good job of providing you with opportunities. That's the place from which the attitude of aborigines needs to be adjusted...now that you've come here, you need to play by the rules here..." During one of Ma’s apologies, he went on to refer to his relationship with indigenous peoples in terms of “xian zhu min” and “hou zhu min”.

Ma’s remarks succeeded in locating indigenous peoples in areas outside the city (high mountain areas), which have been traditionally viewed as wild, untamed, and barbaric in juxtaposition to the “modernity” and refinement found in Taipei, Taiwan’s metropole. Furthermore, Ma inserted himself into the relationship as an example of modernity, capable of civilizing/taming the savage to bring him through time to the present. In other words, if we understand the terms of colonialism established by Edward Said in his seminal work Orientalism, we discover the civilizer must define the object of his desire as inferior and thus in need of civilization, he must also determine that they can be improved and refined through his civilizing project. Ma has, in fact, placed Taiwan’s indigenous peoples firmly within Said’s model as a colonized people with Ma as the civilizer.

For Ruojiao Cao:
1) See above. 2) The attempt to locate “Chinese culture” as a local, regional difference between “Florida” and “New York” a) discounts the fact that both the “PRC” and “KMT /ROC” each constructed different “Chinese cultures” to represent a unified concept of “Chinese” that had not existed proior to the Chinese nationalist movement. B) discounts the significant social impact of “structure”. Both the PRC and ROC have experienced vastly different governing structures with vastly differing motivations and programs for well over 100 years. These structures have a major influence on opportunity, ethnic identification, distribution of wealth and resources and the meaning and symbols citizens assign to their world and share…i.e. culture.

Michael, don’t keep your head down and raise hell!!

vin said...

Fine stuff, Anon. Thanks for taking the time. I learned a few things. I hope someone with a WSJ subscription reads what you wrote and copies it into the comments. (And yes, Robert R., I misconstrued Anon's reason for/target of name-calling.)

A question for you, Anon: Is it really true that no unified concept of "Chinese" existed prior to the nationalist movement? I agree that such encompassing racialist concepts are ridiculous today, but what were all those dynasties ruling but people, the great majority of whom used Han characters in writing and who, with varying degrees of willingness, accepted rule that dictated and enforced unity and "commonality" (when it served imperial ends)?

And didn't even the Manchus use Han characters in writing?

Isn't all of this a sticking point in dealing with Han chauvinists? Isn't it an a posteriori take on these facts as somehow elevating Han asecendancy to the category of "sacred" that causes all the trouble?

Therefore, isn't the best approach not to argue against the HC's on this point but rather to argue that so long as they hew to this point, they are far from "modern" and therefore are hardly in any position to "civilize" anyone?

No other quibbles, Anon. Again, thanks. Many interesting points.

Anonymous said...

vin,

Different dynasties and even different emperors of those dynasties constructed their own cosmologies to fit their particular political situation. An example might be that in the Ming dynasty the Emperor ruled an area of land bounded by the ocean and the Great Wall. The people within that realm were considered "civilized" based on their geographic location in relation to the emperor. It was believed that the emperor lived on sustenance from the most blessed or divine locations grown in the purest yellow soil. The belief continues that the further from the emperor one roamed the more degraded the being became. I would use the term human, but they believed that not all people we now consider as human were actually of the same order of being. Humans had to have "華" to become "人". This was a reaction to the Yuan dynasty of outsiders.

The pre-Manchus were a rag-tag ensemble of unified border tribes, Nikans and pre-Koreans who became united under the imagined community called Manchu by Nurhaci. As outsiders, the succeeding emperors eventually adopted many pre-existing Confucian culturalist systems and engaged in an active campaign to transform the border peoples into "Han" through assimilationist programs. With the rapid expansion of the borders beyond the traditional boundaries under Kang xi, the center and periphery were in more contact than ever before and the Qing sought new and dynamic ways to stabilize these borders by transforming the savage. This is about where Taiwan comes into play and we can see many examples of Qing"transformationalism" at work on the Taiwan plain.

Under the dynastic system what we think of as "China/Chinese" was actually conceptualized as "central" and by no means national or unified. This pattern continued through the Republican era as the Sunists hoped to create a Han-centric state as described above, while maintaining the borders of the Qing. Having their cake and eating it too. The pre WWII attempts to consolidate the "Chinese Nation" were met with extreme resistance from local strong men who wished to maintain their autonomy. There was much discussion in the provinces following the fall of the Qing of independence for Tibet, Sichuan and many of the outer provinces. The KMT's two decade struggle to enforce a strict, centralized ethnocultural nationalism in China also framed Taiwan's early experience with the Nationalists. The nationalists viewed Taiwanese cultural as "backward" and opposed to their state centralism and thus enacted their failed civilizing project in Taiwan.

The definitions and structure of each regime shifted the parameters of inclusion and exclusion to suit their purpose. At one time Adam Schall, the Jesuit in Beijing could have been considered an "insider" based on his level of acculturation. Now, if we look at both Chinese nationalisms in the PRC and Taiwan, we find the rigid racialism described above. Although the KMT did make an exception of Chian Ching guo's wife. In China, ethnic minorities are "validated" by the government based on their location, language, customs, genealogy, psychological make up, and their application to the government. The PRC will often force people who had assimilated into Han to become "minorities" again. In Taiwan one must prove genealogy, language, defined customs and material culture all harkening back to how indigenous peoples are believed to have been at first contact with Han. To identify as Han in either country one needs to prove nothing as Han equates modern. It has been the topic of sever studies that when the leaders of China and Taiwan view "ethnic" performance, the Han dress in "western style" suits. Anyway... the definitions are always changing and the authentic is always being renegotiated through regime change.

The Chinese nationalists have regularly oscillated between modernism and state traditionalism. When the KMT became concerned their metropole was becoming too cosmopolitan, they would turn on the traditional to keep it in check. The "Chinese Cultural Renaissance Movement" of the late 60's and early 70's is a fine example. It was at this time that many of the "Chinese" traditions we see advertised were codified by the KMT. The song Descendants of the Dragon was pushed on the airwaves and this state Han Chinese culture became "our" culture. Not very multi-ethnic and very contrived. Most of it was never practiced by people's ancestors in Taiwan or China: The traditions of the Mandarins.

Language has been in flux too and the use of characters is debatable as to who exactly had access to them. It may be the only unifying characteristic of "Chinese", but it is a weak point to assert a common cultural center to build a nationalism on. The Churchillian "A people separated by a common language" comes to mind.
The wide-spread ethnic feuding exemplifies how "other" was defined in dynastic times.


I am running long again.

Anyway... if anyone wants to post my comments to the WSJ go ahead. I just don't want a subscription to do it.