Taking the Lawsuit Against Jiang Zemin to the U.S. Supreme Court Is of Significant Importance in Exposing the Persecution (Photo)
(Clearwisdom.net) Minghui.org correspondents Li Zhi and Cheng Shu report --
Dr. Terri Marsh was born into a Jewish family. Both her parents lived through the Nazi Holocaust. Before becoming an attorney, Dr. Marsh was an accomplished university professor. The Tiananmen Square massacre on June 4, 1989, made a big impression on Dr. Marsh and she decided to switch her major to study law. She had made up her mind to help innocent people who suffer wrongful persecution. At present, Terri Marsh is an attorney in Washington, DC.
In 2002, Dr. Marsh agreed to represent American Falun Gong practitioners in filing a lawsuit against the former President of China, Jiang Zemin. In mid-February this year, Dr. Marsh submitted a brief about the case against Jiang to the U.S. Supreme Court. Since Jiang was first sued in the U.S., Falun Gong practitioners across the world have successively filed lawsuits against Jiang in Belgium, Spain, Australia, Korea, and Taiwan.
In an interview with Minghui correspondents, Dr. Marsh discussed the process and progress of the lawsuit in detail. She also revealed the influence of the pressure exerted by the Chinese government on the U.S. government and the U.S. Department of Justice. Dr. Marsh stressed that it would be in line with the very basic interests of the U.S. and fundamental to the building of the nation if the verdict is made in favor of the plaintiffs. The following are highlights from this special interview.
Reporter: Would you please introduce the process and progress of the lawsuit against Jiang Zemin?
Terri Marsh: We filed the lawsuit initially in October 2002, when Jiang Zemin, the former president of China, was visiting the US. We served his bodyguard five times. Then in December of the same year, we received a brief from the Department of Justice (DOJ) asking that the case be dismissed for diplomatic reasons, on the grounds that Jiang Zemin enjoyed Head of State Immunity. In April, we filed an opposition brief, 80 pages long, in response to the DOJ's filing, arguing that Jiang Zemin, as a former head of state, doesn't enjoy Head of State Immunity. That is the law of the U.S., that is the international law, and there was no question that Jiang left the office of head of state in March of 2003 and as a matter of law [he] should stand trial.
The District Court judge dismissed the case, ignoring the Second Circuit, Fourth Circuit, the Ninth Circuit, and the Fifth Circuit Courts' decisions indicating that former heads of state are not accorded the same immunity and protected status as sitting chief executives. While the District Court recognized that former heads of state couldn't be considered immune for their private acts, it did not take proper account of the fact that torture and genocide are outside the scope of lawful government authority and must be considered by their nature similar to private acts and [are therefore] not immune. We filed our appeal with the United States Court of Appeals for the Seventh Circuit based on these and other District Court's errors.
Oral argument was held before the Seventh Circuit in May of 2004. In spite of the legal arguments we presented in our briefs and at oral argument, the Court of Appeals treated the case as if it were a complaint against a sitting head of state. They did not take proper account of the factual circumstance of Jiang having left office, or of the substantial legal precedents indicating that former heads of state are not granted the same immunity status as sitting heads of state. The Seventh Circuit decision is at odds with a substantial body of case law, including decisions of the Ninth and Fifth Circuits, which hold that immunity does not attach to ultra vires acts that go beyond what an official is authorized to do, and that therefore must be characterized as unauthorized, individual, and "not official" acts by United States courts. This is true whether the illegality is based on the domestic laws of the affected foreign nation, or on international law, and most especially when fundamental and universally recognized just norms of international law have been violated.
We filed a petition to the Supreme Court on February 7, 2005 asking the Court to grant review of the Seventh Circuit decision. The Executive Branch has until March 11, 2005 to file a reply. Our opposition to their reply will be due ten days later, on the 21st of March.
The court will probably will take about 2-3 months to decide whether or not they want to review our case.
Since the filing of this case, cases have been filed all around the world against Jiang Zemin, in Belgium, Spain, Korea, Taiwan, many other places. This is the first time lawyers from so many different countries have filed lawsuits against the same person for his crimes. The global association of human rights lawyers have made their point well: Jiang Zemin is guilty as charged and neither he nor any other Chinese official can continue to commit these crimes with impunity.
Reporter: How were you able to Sue Jiang Zemin in the U.S. Court?
Terri Marsh: The U.S. Congress, both the House and Senate, have passed two statutes, the Alien Tort Claims Act, and the Torture Victims Protection Act, to permit attorneys in the United States to sue foreign nationals for crimes of genocide, torture and other crimes against humanity committed abroad.
Reporter: Why did you decide to file this lawsuit before the U.S. Supreme Court?
Terri Marsh: I decided to sue Jiang Zemin many years ago. When I made that decision I knew I'd do whatever is necessary to win. Jiang is guilty of crimes of torture and genocide. His former position as head of state of China does not exonerate him permanently for these crimes. In the United States, everyone is equal before the law. All criminals regardless of their rank or stature are held accountable for their crimes. So should he. I am taking this case to the Supreme Court in order to persuade them to ask the courts below to find Jiang liable for these crimes and to impose penalties on him commensurate with the gravity and weight of his crimes.
The Supreme Court has adjudicated many epoch-making cases, which helped establish the U.S. as an important country that plays a leading role in the world in the perspective of morality, conscience, justice and courage.
Reporter: What are the major points that you are arguing for this case?
Terri Mash: The major points that we are arguing in this case are: 1) that former heads of state do not have the same immunity protections as sitting heads of state; unlike sitting heads of state, former heads of state may not invoke immunity protections; 2) there is one exception to this general rule -- former heads of state are immune for their "official" acts. However, torture and genocide are not "official" acts under the U.S. law, under the law of China or under standards of international law.
Reporter: Why in your view, did the Department of Justice file oppositions to this case?
Terri Marsh: In my view, the department of justice filed oppositions to this case under the pressure from Jiang's regime and the Communist Party. The Communist Party and Jiang's regime have been putting pressure on the United States government through emails, through fax and through phones calls addressed to many high-ranking officials in the Executive Branch, demanding that this case be dismissed through diplomatic channels. In my view, the Executive Branch of the United States was motivated by fear, which is never rational and not ever in the best interests of others or us.
China doesn't have an independent judicial branch. Many of the trials in China are decided beforehand by the Communist Party. In fact, all of the trials in China against the practitioners of Falun Gong are decided behind closed doors by the Chinese Communist Party before the trials begin.
For the [United States] Executive Branch to give in to China's demands is to relinquish the very foundation of our system of separation of powers -- the heart and soul of our constitution. It's too bad because it's in the vital interests of the U.S. to litigate this case and rule in favor of the plaintiffs.
Initially, it was exactly because of religious persecution that the English puritans fled to the U.S. The founding fathers of the U.S., including Hamilton, Madison, Jefferson and John Jay, wrote a great number of articles expounding that people should enjoy freedom of religious belief and other rights that they cannot be deprived of. The Declaration of Independence stated that all men are created equal, that they are endowed by their Creator with certain inalienable rights. These rights include freedoms of religion, expression and assembly. As time passed, rights of being free of enslavement were also added. Therefore, based on the protection of freedoms of religion and belief, it would be in accordance with American fundamental interests for the U.S. to help stop the persecution of Falun Gong.
The Torture Victim Protection Act was unanimously passed in 1992 in both the U.S. Congress and Senate. When former President Bush signed the act to make it a law, he acknowledged that this might bring revenge lawsuit against U.S. leaders. He said that risks to have the U.S. courts involved in diplomatic conflict exist, but these potential risks should have nothing to do with the fundamental purpose of this legislation. He said that we must commit ourselves to ensuring that human rights are respected everywhere.
The crimes of Jiang Zemin are no different from those of Saddam Hussein. Jiang Zemin was no more the legitimate head of China than Saddam Hussein was the legitimate head of Iraq. So we should treat both men, both criminals, in the same way. Why the difference? As for the U.S. Justice Department, it is not too late for the Executive Branch to do the right thing and ask the court to send the case back to the District Court and to hold those who have committed these crimes responsible.
Reporter: Some Chinese people have been concerned that if the former head of state of China is sued, it will embarrass Chinese people and damage China's dignity, what do you think?
Terri Marsh: No, I don't think so. China proper is not the Chinese Communist Party. Many people in China have simply been beguiled by the Chinese Communist Party's rhetoric, brainwashing, and propaganda. They have forgotten that there was a China that has spiritual roots, strong spiritual roots, and strong moral roots. But much of China's strength and integrity was destroyed and uprooted by the Communist Party. This lawsuit is based on the moral principles of the true China; it reflects well the soul of China proper, which is strong, spiritual, and very moral.
Reporter: Why has this case been named a landmark case?
Terri Mash: This lawsuit is unlike many other lawsuits that I have filed. By bringing this case to the U.S. District Court, and then bringing it up one level to the Court of Appeals of the Seventh Circuit, and then bringing it finally up to the highest court, the Supreme Court, we exposed the truth about the persecution and let the evil perpetrators know that anyone who comes to the United States who has contributed in any way to the persecution of Falun Gong will be sued. It is also important for the legal precedent it has set. But my hope is that this case will help stop the persecution, sooner rather than later.
The lawsuit has also exposed the evil to a great extent, directly in the U.S., through the work of a lot of Falun Gong practitioners who have discussed the case with Congress, with the press and with the public.
This lawsuit has set off a worldwide chain-reaction of lawsuits. There are now more than 30 lawyers working together to sue Jiang. This is the first time so many lawyers have coordinated to sue the same person. There is no precedent in history and there was no such situation even in Nuremberg.
I think this lawsuit has landmark significance. At present, the voice of justice has spread to every corner in the world: Jiang Zemin is guilty of persecuting Falun Gong and he should be brought to justice.
Reporter: Is this the only lawsuit that you have represented against Chinese officials who have been involved in the persecution of Falun Gong?
Terri Marsh: This is not the only one. In 2001, when Zhao Zhifei, Head of the Public Security Office of Hubei Province (Chief of Police) and Second Command of the 610 Office of Hubei Province, visited New York, I filed a complaint in the New York District Court. I also took part in the lawsuits against Liu Qi, Mayor of Beijing, Wang Xudong, former Secretary of the Communist Party in Hebei Province and Zhao Zhizhen, former Director of Wuhan TV station. American human rights attorneys filed a number of lawsuits against Chinese Communist leaders who actively participated in the persecution of Falun Gong.
Reporter: How many lawsuits aiming at this persecution have you won?
Terri Marsh: Up to the present, we won the lawsuits against Zhao Zhifei and Liu Qi. I expect that we will also win the case against Zhao Zhizhen. I hope he will be tried in Connecticut. At present, the lawsuit against Wang Xudong is waiting for the verdict.
Reporter: Thank you so much for taking time from your busy schedule to answer our questions.