US v. Palestine Liberation Organization

• Decision Date: 29 June 1988
• Docket Number: No. 88 Civ. 1962 (ELP).,88 Civ. 1962 (ELP).
• Citation: 695 F. Supp. 1456
• Parties: UNITED STATES of America, Plaintiff, v. The PALESTINE LIBERATION ORGANIZATION, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

695 F. Supp. 1456

UNITED STATES of America, Plaintiff, v. The PALESTINE LIBERATION ORGANIZATION, et al., Defendants.

No. 88 Civ. 1962 (ELP).

United States District Court, S.D. New York.

June 29, 1988.

Rudolph W. Giuliani, U.S. Atty., Richard W. Mark, Asst. U.S. Atty., S.D.N.Y., New York City, John R. Bolton, Asst. Atty. Gen., Mona Butler, David J. Anderson, Vincent M. Garvey, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for Attorney Gen.

Ramsey Clark, Lawrence W. Schilling, New York City, for defendants Palestine Liberation Organization, PLO Mission, Zuhdi Labib Terzi, Riyad H. Mansour, Nasser Al-Kidwa and Veronica Kanaan Pugh.

Leonard B. Boudin, Michael Krinsky, David Golove, Nicholas E. Poser, David B. Goldstein, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, New York City, for defendant Riyad H. Mansour.^*

Keith Highet, Joseph D. Pizzurro, Curtis, Mallet-Prevost, Colt & Mosle, New York City, for United Nations, amicus curiae.^**

Sheldon Oliensis, President, Saul L. Sherman, Stephen L. Kass, Association of the Bar of the City of New York, New York City, for the Association of the Bar of the City of New York, amicus curiae.^***

ORDER AND OPINION

PALMIERI, District Judge.

The Anti-terrorism Act of 1987¹ (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 Nations² (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 ¶ 14, U.N. Doc. A/939/Rev.1 (1949) (hereinafter Permanent Missions: Report of the Secretary-General). Of these, several non-member nations,⁴ intergovernmental organizations,⁵ and other organizations⁶ 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 States⁷ 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 Den.J.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 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 represented 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...