United States v. Palestine Liberation Organization

ORDER AND OPINION

The Anti-terrorism Act of 1987 1 (the “ATA”), is the focal point of this lawsuit. At the center of controversy is the right of the Palestine Liberation Organization (the “PLO”) to maintain its office in conjunction with its work as a Permanent Observer to the United Nations. The case comes before the court on the government’s motion for an injunction closing this office and on the defendants’ motions to dismiss.

I

Background

The United Nations’ Headquarters in New York were established as an international enclave by the Agreement Between the United States and the United Nations Regarding the Headquarters of the United Nations 2 (the “Headquarters Agreement”). This agreement followed an invitation extended to the United Nations by the United States, one of its principal founders, to establish its seat within the United States. 3

As a meeting place and forum for all nations, the United Nations, according to its charter, was formed to:

maintain international peace and security ...; to develop friendly relations among nations, based on the principle of equal rights and self-determination of peoples ...; to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character ...; and be a centre for harmonizing the actions of nations in the attainment of these common ends.

U.N. Charter art. 1. Today, 159 of the United Nations’ members maintain missions to the U.N. in New York. U.N. Protocol and Liaison Service, Permanent Missions to the United Nations No. 262 3-4 (1988) (hereinafter “Permanent Missions No. 262 ”). In addition, the United Nations has, from its incipiency, welcomed various non-member observers to participate in its proceedings. See Permanent Missions to the United Nations: Report of the Secretary-General, 4 U.N. GAOR C.6 Annex (Agenda Item 50) 16, 17 1114, U.N. Doc. A/939/Rev.l (1949) (hereinafter Permanent Missions: Report of the Secretary-General). Of these, several non-member *1459 nations, 4 intergovernmental organizations, 5 and other organizations 6 currently maintain “Permanent Observer Missions” in New York.

The PLO falls into the last of these categories and is present at the United Nations as its invitee. See Headquarters Agreement, § 11, 61 Stat. at 761 (22 U.S.C. § 287 note). The PLO has none of the usual attributes of sovereignty. It is not accredited to the United States 7 and does not have the benefits of diplomatic immunity. 8 There is no recognized state it claims to govern. It purports to serve as the sole political representative of the Palestinian people. See generally Kassim, The Palestine Liberation Organization Claim to Status: A Juridical Analysis Under International Law, 9 DenJ.International L. & Policy 1 (1980). The PLO nevertheless considers itself to be the representative of a state, entitled to recognition in its relations with other governments, and is said to have diplomatic relations with approximately one hundred countries throughout the world. Id. at 19.

In 1974, the United Nations invited the PLO to become an observer at the U.N., 9 to “participate in the sessions and the work of the General Assembly in the capacity of observer.” 10 The right of its representatives to admission to the United States as well as access to the U.N. was immediately challenged under American law. Judge Costantino rejected that challenge in Anti-Defamation League of B’nai B’rith v. Kissinger, Civil Action No. 74 C 1545 (E.D.N.Y. November 1, 1974). The court upheld the presence of a PLO representative in New York with access to the United Nations, albeit under certain entrance visa restrictions which limited PLO personnel movements to a radius of 25 miles from Columbus Circle in Manhattan. It stated from the bench:

This problem must be viewed in the context of the special responsibility which the United Nations has to provide access to the United Nations under the Headquarters Agreement. It is important to note for the purposes of this case that a primary goal of the United Nations is to provide a forum where peaceful discussions may displace violence as a means of resolving disputed issues. At times our responsibility to the United Nations may require us to issue visas to persons who are objectionable to certain segments of our society.

Id., transcript at 37, partially excerpted in Department of State, 1974 Digest of United States Practice in International Law, 27, 28.

Since 1974, the PLO has continued to function without interruption as a permanent observer and has maintained its Mission to the United Nations without trammel, largely because of the Headquarters Agreement, which we discuss below.

II

The Anti-Terrorism Act

In October 1986, members of Congress requested the United States Department of *1460 State to close the PLO offices located in the United States. 11 That request proved unsuccessful, and proponents of the request introduced legislation with the explicit purpose of doing so. 12

The result was the ATA, 22 U.S.C. §§ 5201-5203. It is of a unique nature. We have been unable to find any comparable statute in the long history of Congressional enactments. The PLO is stated to be “a terrorist organization and a threat to the interests of the United States, its allies, and to international law and should not benefit from operating in the United States.” 22 U.S.C. § 5201(b). The ATA was added, without committee hearings, 13 as a rider to the Foreign Relations Authorization Act for Fiscal Years 1988-89, which provided funds for the operation of the State Department, including the operation of the United States Mission to the United Nations. Pub.L. 100-204 § 101, 101 Stat. 1331, 1335. The bill also authorized payments to the United Nations for maintenance and operation. Id. § 102(a)(1), 101 Stat. at 1336; see also id. § 143, 101 Stat. at 1386.

The ATA, which became effective on March 21, 1988, 14 forbids the establishment or maintenance of “an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by” the PLO, if the purpose is to further the PLO’s interests. 22 U.S. C. § 5202(3). The ATA also forbids spending the PLO’s funds or receiving anything of value except informational material from the PLO, with the same mens rea requirement. Id. §§ 5202(1) and (2).

Ten days before the effective date, the Attorney General wrote the Chief of the PLO Observer Mission to the United Nations that “maintaining a PLO Observer Mission to the United Nations will be unlawful,” and advised him that upon failure of compliance, the Department of Justice would take action in federal court. This letter is reproduced in the record as item 28 of the Compendium prepared at the outset of this litigation pursuant to the court’s April 21, 1988 request to counsel (attached as Appendix B). It is entitled “Compendium of the Legislative History of the Anti-Terrorism Act of 1987, Related Legislation, and Official Statements of the Department of Justice and the Department of State Regarding This Legislation.” The documents in the compendium are of great interest.

The United States commenced this lawsuit the day the ATA took effect, seeking injunctive relief to accomplish the closure of the Mission. The United States Attorney for this District has personally repre *1461 sented that no action would be taken to enforce the ATA pending resolution of the litigation in this court.

There are now four individual defendants in addition to the PLO itself. 15 Defendant Zuhdi Labib Terzi, who possesses an Algerian passport but whose citizenship is not divulged, has served as the Permanent Observer of the PLO to the United Nations since 1975. Defendant Riyad H. Mansour, a citizen of the United States, has been the Deputy Permanent Observer of the PLO to the United Nations since 1983. Defendant Nasser Al-Kidwa, a citizen of Iraq, is the Alternate Permanent Observer of the PLO to the United Nations. And defendant Veronica Kanaan Pugh, a citizen of Great Britain, is charged with administrative duties at the Observer Mission. These defendants contend that this court may not adjudicate the ATA’s applicability to the Mission because such an adjudication would violate the United States’ obligation under Section 21 of the Headquarters Agreement to arbitrate any dispute with the United Nations. Apart from that, they argue, application of the ATA to the PLO Mission would violate the United States’ commitments under the Headquarters Agreement. They assert that the court lacks subject matter and personal jurisdiction over them and that they lack the capacity to be sued. Fed.R.Civ.P. 12(b)(1) and (2); 17(b). Defendant Riyad H. Mansour additionally moves to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). 16 Plaintiff, the United States, moves for summary judgment. Fed.R.Civ.P. 56.

Ill

Personal Jurisdiction over the Defendants

The PLO maintains an office in New York. The PLO pays for the maintenance and expenses of that office. It maintains a telephone listing in New York. The individuals employed at the PLO’s Mission to the United Nations maintain a continuous presence in New York. There can be little question that it is within the bounds of fair play and substantial justice to hail them into court in New York. International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945). The limitations that the due process clause places on the exercise of personal jurisdiction are the only ones applicable to the statute in these circumstances. 22 U.S.C. § 5203(b). Cf. United States v. Aluminum Co. of America, 148 F.2d 416, 443-44 (2d Cir.1945) (L. Hand, J.). The PLO does not argue that it or its employees are the beneficiaries of any diplomatic immunity due to its presence as an invitee of the United Nations. We have no difficulty in concluding that the court has personal jurisdiction over the PLO and the individual defendants.

IV

The Duty to Arbitrate

Counsel for the PLO and for the United Nations and the Association of the Bar of the City of New York, as amici curiae, have suggested that the court defer to an advisory opinion of the International Court of Justice. Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, 1988 I.C.J. 12 (April 26, 1988) (U.N. v. U.S.). That decision holds that the United States is bound by Section 21 of the Headquarters Agreement to submit to binding arbitration of a dispute precipitated by the passage of the ATA. Indeed, it is the PLO’s position that this alleged duty to arbitrate deprives the court of subject matter jurisdiction over this litigation.

*1462 In June 1947, the United States subscribed to the Headquarters Agreement, defining the privileges and immunities of the United Nations’ Headquarters in New York City, thereby becoming the “Host Country” — a descriptive title that has followed it through many United Nations proceedings. The Headquarters Agreement was brought into effect under United States law, with an annex, by a Joint Resolution of Congress approved by the President on August 4, 1947. 17 The PLO rests its argument, as do the amici, on Section 21(a) of the Headquarters Agreement, which provides for arbitration in the case of any dispute between the United Nations and the United States concerning the interpretation or application of the Headquarters Agreement. Because interpretation of the ATA requires an interpretation of the Headquarters Agreement, they argue, this court must await the decision of an arbitral tribunal yet to be appointed before making its decision.

Section 21(a) of the Headquarters Agreement provides, in part:

“Any dispute between the United Nations and the United States concerning the interpretation or application of this agreement or of any supplemental agreement, which is not settled by negotiation or other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators____”

61 Stat. at 764 (22 U.S.C. § 287 note) (emphasis supplied). Because these proceedings are not in any way directed to settling any dispute, ripe or not, between the United Nations and the United States, Section 21, is, by its terms, inapplicable. 18 The fact that the Headquarters Agreement was adopted by a majority of both Houses of Congress and approved by the President, see 61 Stat. at 768, might lead to the conclusion that it provides a rule of decision requiring arbitration any time the interpretation of the Headquarters Agreement is at issue in the United States Courts. That conclusion would be wrong for two reasons.

First, this court cannot direct the United States to submit to arbitration without exceeding the scope of its Article III powers. What sets this case apart from the usual situation in which two parties have agreed to binding arbitration for the settlement of any future disputes, requiring the court to stay its proceedings, cf. 9 U.S.C. § 3 (1982), 19 is that we are here involved with matters of international policy. This is an area in which the courts are generally unable to participate. These questions do not lend themselves to resolution by adjudication under our jurisprudence. See generally Baker v. Carr, 369 U.S. 186, 211-13, 82 S.Ct. 691, 707-08, 7 L.Ed.2d 663 (1962). The restrictions imposed upon the courts forbidding them to resolve such questions (often termed “political questions”) derive not only from the limitations which inhere in the judicial process but also from those imposed by Article III of the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803) (Marshall, C.J.) (“The province of the court is, solely, to decide on the right of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this Court.”). The decision in Marbury has never been disturbed.

*1463 The conduct of the foreign relations of our Government is committed by the Constitution to the executive and legislative— the “political” — -departments of the government. As the Supreme Court noted in Baker v. Carr, supra, 369 U.S. at 211, 82 S.Ct. at 707, not all questions touching upon international relations are automatically political questions. Nonetheless, were the court to order the United States to submit to arbitration, it would violate several of the tenets to which the Supreme Court gave voice in Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. at 710. 20 Resolution of the question whether the United States will arbitrate requires “an initial policy determination of a kind clearly for nonjudicial discretion;” deciding whether the United States will or ought to submit to arbitration, in the face of a determination not to do so by the executive, 21 would be impossible without the court “expressing lack of the respect due coordinate branches of government;” and such a decision would raise not only the “potentiality” but the reality of “embarrassment from multifarious pronouncements by various departments on one question.” It is for these reasons that the ultimate decision as to how the United States should honor its treaty obligations with the international community is one which has, for at least one hundred years, been left to the executive to decide. Goldwater v. Carter, 444 U.S. 996, 996-97, 100 S.Ct. 533, 533, 62 L.Ed.2d 428 (1979) (vacating, with instructions to dismiss, an attack on the President’s action in terminating a treaty with Taiwan); Clark v. Allen, 331 U.S. 503, 509, 67 S.Ct. 1431, 1435, 91 L.Ed. 1633 (1947) (“President and Senate may denounce a treaty and thus terminate its life”) (quoting Techt v. Hughes, 229 N.Y. 222, 243, 128 N.E. 185 (Cardozo, J.), cert. denied, 254 U.S. 643, 41 S.Ct. 14, 65 L.Ed. 454 (1920)); Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726 (1918) (redress for violation of international accord must be sought via executive); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 602, 9 S.Ct. 623, 628, 32 L.Ed. 1068 (“the question whether our government is justified in disregarding its engagements with another nation is not one for the determination of the courts”) (1889); accord Whitney v. Robertson, 124 U.S. 190, 194-95, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888). Consequently the question whether the United States should submit to the jurisdiction of an international tribunal is a question of policy not for the courts but for the political branches to decide. 22

Section 21 of the Headquarters Agreement cannot provide a rule of decision regarding the interpretation of that agreement for another reason: treating it as doing so would require the courts to refrain from undertaking their constitutionally mandated function. The task of the court in this case is to interpret the ATA in resolving this dispute between numerous parties and the United States. Interpretation of the ATA, as a matter of domestic law, falls to the United States courts. In *1464 interpreting the ATA, the effect of the United States’ international obligations— the United Nations Charter and the Headquarters Agreement in particular — must be considered. As a matter of domestic law, the interpretation of these international obligations and their reconciliation, if possible, with the ATA is for the courts. It is, as Chief Justice Marshall said, “emphatically the province and duty of the judicial department to say what the law is.” Marburg v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). That duty will not be resolved without independent adjudication of the effect of the ATA on the Headquarters Agreement. Awaiting the decision of an arbitral tribunal would be a repudiation of that duty.

Interpreting Section 21 as a rule of decision would, at a minimum, raise serious constitutional questions. We do not interpret it in that manner. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-01, 99 S.Ct. 1313, 1319, 59 L.Ed.2d 533 (1979). It would not be consonant with the court’s duties for it to await the interpretation of the Headquarters Agreement by an arbitral tribunal, not yet constituted, before undertaking the limited task of interpreting the ATA with a view to resolving the actual dispute before it.

In view of the foregoing, the court finds that it is not deprived of subject matter jurisdiction by Section 21 of the Headquarters Agreement and that any interpretation of the Headquarters Agreement incident to an interpretation of the ATA must be done by the court.

V

The Anti-Terrorism Act and the Headquarters Agreement

If the ATA were construed as the government suggests, it would be tantamount to a direction to the PLO Observer Mission at the United Nations that it close its doors and cease its operations instanter. Such an interpretation would fly in the face of the Headquarters Agreement, a prior treaty between the United Nations and the United States, and would abruptly terminate the functions the Mission has performed for many years. This conflict requires the court to seek out a reconciliation between the two.

Under our constitutional system, statutes and treaties are both the supreme law of the land, and the Constitution sets forth no order of precedence to differentiate between them. U.S. Const. art. VI, cl. 2. Wherever possible, both are to be given effect. E.g. Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252, 104 S.Ct. 1776, 1783, 80 L.Ed.2d 273 (1984); Weinberger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 1516, 71 L.Ed.2d 715 (1982); Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 690, 99 S.Ct. 3055, 3077, 61 L.Ed.2d 823, modified, 444 U.S. 816, 100 S.Ct. 34, 62 L.Ed.2d 24 (1979); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 677-78, 9 L.Ed.2d 547 (1963); Clark v. Allen, supra, 331 U.S. at 510-11, 67 S.Ct. at 1435-36; Chew Heong v. United States, 112 U.S. 536, 550, 5 S.Ct. 255, 260, 28 L.Ed. 770 (1884). Only where a treaty is irreconcilable with a later enacted statute and Congress has clearly evinced an intent to supersede a treaty by enacting a statute does the later enacted statute take precedence. E.g. The Chinese Exclusion Case, supra, 130 U.S. at 599-602, 9 S.Ct. at 627-28 (finding clear intent to supersede); Edge v. Robertson (The Head Money Cases), 112 U.S. 580, 597-99, 5 S.Ct. 247, 253-54, 28 L.Ed. 798 (1884) (same, decided on the same day as Chew Heong, supra, which found no such intent); South African Airways v. Dole, 817 F.2d 119, 121, 125-26 (D.C.Cir.) (Anti-Apartheid Act of 1986, directing the Secretary of State to “terminate the Agreement Between the United States of America and the Government of the Union of South Africa” irreconcilable with that treaty), cert. denied, — U.S. -, 108 S.Ct. 229, 98 L.Ed.2d 188 (October 13, 1987); Diggs v. Shultz, 470 F.2d 461, 466 (D.C.Cir.1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973). Compare Menominee Tribe of Indians v. United States, 391 U.S. 404, 413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968) *1465 (finding no clear intent to abrogate treaty); McCulloch v. Sociedad de Marineros, supra, 372 U.S. at 21-22, 83 S.Ct. at 677-78 (same); Cook v. United States, 288 U.S. 102, 119-20, 53 S.Ct. 305, 311, 77 L.Ed. 641 (1933) (same).

The long standing and well-established position of the Mission at the United Nations, sustained by international agreement, when considered along with the text of the ATA and its legislative history, fails to disclose any clear legislative intent that Congress was directing the Attorney General, the State Department or this Court to act in contravention of the Headquarters Agreement. This court acknowledges the validity of the government’s position that Congress has the power to enact statutes abrogating prior treaties or international obligations entered into by the United States. Whitney v. Robertson, supra, 124 U.S. at 193-95, 8 S.Ct. at 457-58; The Head Money Cases, supra, 112 U.S. at 597-99, 5 S.Ct. at 253-54. However, unless this power is clearly and unequivocally exercised, this court is under a duty to interpret statutes in a manner consonant with existing treaty obligations. This is a rule of statutory construction sustained by an unbroken line of authority for over a century and a half. Recently, the Supreme Court articulated it in Weinberger v. Rossi, supra, 456 U.S. at 32, 102 S.Ct. at 1516:

It has been maxim of statutory construction since the decision in Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 [2 L.Ed. 208] (1804), that “an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains____”

Accord Trans World Airlines, supra, 466 U.S. at 252, 104 S.Ct. at 1783; Washington v. Fishing Vessel Association, supra, 443 U.S. at 690, 99 S.Ct. at 3077; Menominee Tribe of Indians, supra, 391 U.S. at 412-13, 88 S.Ct. at 1711; McCulloch v. Sociedad de Marineros, supra, 372 U.S. at 21-22, 83 S.Ct. at 677-78; Lauritzen v. Larsen, 345 U.S. 571, 578, 73 S.Ct. 921, 926, 97 L.Ed. 1254 (1953); Clark v. Allen, supra, 341 U.S. at 510, 67 S.Ct. at 1435; Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160, 54 S.Ct. 361, 367, 78 L.Ed. 695 (1934); Cunard S.S. Co. v. Mellon, 262 U.S. 100, 132, 132, 43 S.Ct. 504, 510, 510, 67 L.Ed. 894 (1923) (Sutherland, J., dissenting); Chew Heong, supra, 112 U.S. at 549, 5 S.Ct. at 260 (1884).

The American Law Institute’s recently revised Restatement (Third) Foreign Relations Law of the United States (1988) reflects this unbroken line of authority:

§ 115. Inconsistency Between International Law or Agreement and Domestic Law: Law of the United States.

(l)(a) An Act of Congress supersedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supersede the earlier rule or provision is clear and if the act and the earlier rule or provision cannot be fairly reconciled,

(emphasis supplied).

We believe the ATA and the Headquarters Agreement cannot be reconciled except by finding the ATA inapplicable to the PLO Observer Mission.

A. The Obligations of the United States under the Headquarters Agreement.

The obligation of the United States to allow transit, entry and access stems not only from the language of the Headquarters Agreement but also from forty years of practice under it. Section 11 of the Headquarters Agreement reads, in part,

The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of: (1) representatives of Members ..., (5) other persons invited to the headquarters district by the United Nations ... on official business.

61 Stat. at 761 (22 U.S.C. § 287 note). 23 These rights could not be effectively exer *1466 cised without the use of offices. The ability to effectively organize and carry out one’s work, especially as a liaison to an international organization, would not be possible otherwise. It is particularly significant that Section 13 limits the application of United States law not only with respect to the entry of aliens, but also their residence. The Headquarters Agreement thus contemplates a continuity limited to official United Nations functions and is entirely consistent with the maintenance of missions to the United Nations. The exemptions of Section 13 are not limited to members, but extend to invitees as well.

In addition, there can be no dispute that over the forty years since the United States entered into the Headquarters Agreement it has taken a number of actions consistent with its recognition of a duty to refrain from impeding the functions of observer missions to the United Nations. It has, since the early days of the U.N.’s presence in New York, acquiesced in the presence of observer missions to the U.N. in New York. See Permanent Missions: Report of the Secretary-General, supra, at 17, ¶ 14 (1949).

After the United Nations invited the PLO to participate as a permanent ob