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Bauer v. Marmara

United States District Court, District of Columbia

April 18, 2013

ALAN J. BAUER, Plaintiff,
v.
MAVI MARMARA et al., Defendants

Page 32

For ALAN J. BAUER, Dr., Plaintiff: Asher Perlin, LEAD ATTORNEY, PRO HAC VICE, Law Offices of Asher Perlin, Miami, FL; Robert Joseph Tolchin, LEAD ATTORNEY, THE BERKMAN LAW OFFICE, LLC, Brooklyn, NY.

For UNITED STATES OF AMERICA, Interested Party: Vijay Shanker, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Appellate Section, Washington, DC.

OPINION

Page 33

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge.

I. INTRODUCTION

This lawsuit arises from the Israeli naval blockade of the Gaza Strip in 2006. The plaintiff claims to have identified several ships that violated the blockade in order to provide assistance to terrorist groups in the Palestinian territories. The plaintiff thus brought suit under the Neutrality Act, a law that was enacted in 1794 and has rarely been invoked since. Because the Neutrality Act lacks a private cause of action, the court dismisses the case.

II. LEGAL AND FACTUAL BACKGROUND

A. The Neutrality Act of 1794

The Neutrality Act bears an impeccable historical pedigree: " The act of 1794, which has been generally recognized as the first instance of municipal legislation in support of the obligations of neutrality, and a remarkable advance in the development of international law, was recommended to congress by President Washington in his annual address on December 3, 1793, was drawn by Hamilton, and passed the senate by the casting vote of Vice President Adams." The Three Friends, 166 U.S. 1, 52-53, 17 S.Ct. 495, 41 L.Ed. 897 (1897). The Neutrality Act was designed to keep the United States from getting dragged into the conflict between England and France. Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830, 847 (2006)(describing the " young Republic's neutrality crisis" as the Founders precariously navigated " between the Scylla of Britain and the Charybdis of France." ). Thus, the Act appears to be a legislative enactment of President Washington's warning--made famous in his farewell address--that the young nation should remain free from entangling alliances. George Washington, Farewell Address (Sept. 19, 1796), reprinted in S. Doc. No. 106-21 (2000) (" Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? . . . After deliberate examination, with the aid of the best lights I could obtain, I was well satisfied that our country, under all the circumstances of the case, had a right to take, and was bound in duty and interest to take, a neutral position." ).

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The Neutrality Act is one of many " bounty" or " informer" statutes that were passed in the early days of the Republic. These provisions promised a financial reward to citizens who came forward with information of wrongdoing. See generally Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 774-79,120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (providing a lengthy history of informant statutes). The bounty mechanism was born of necessity, as the then-nascent federal government often lacked sufficient means to investigate or prosecute illegal activity. U.S. ex rel. Marcus v. Hess, 317 U.S. 537, 560, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (Jackson, J., dissenting) (describing " law-enforcement in a nation which had not yet established a Federal Department of Justice, which did not then have a Federal Bureau of Investigation, or a Treasury investigating force, and in which the activities of the Federal Government were so circumscribed that they had not been found necessary." ); Pamela H. Bucy, Information as a Commodity in the Regulatory World, 39 Hous. L. Rev. 905, 910 (2002) (explaining that " in colonial America, informer actions were needed because there was no police force or prosecuting authority" ); Evan Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L.J. 341, 341 n.1 (1989) (noting that " prior to the growth of the modern executive, the responsibility for enforcing legal obligations necessarily fell to private citizens [through qui tam actions] rather than public officers" ).

Congress's reliance on the " bounty" or " informer" mechanism waned somewhat in the early to mid-nineteenth century, in response to the steady expansion of the federal government's prosecutorial machinery. Thus, few of these statutes remain on the books; even fewer are invoked in today's courts. See Evan Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L.J. 341, 341 n.1 (1989) (" Most early qui tam statutes have long been repealed; of those remaining, most lie essentially dormant." ). Of course, this would not be the first time that an enterprising plaintiff has resuscitated a long-dormant statute. In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the plaintiffs rescued the Alien Tort Statute--passed by the first Congress in 1789--from nearly two hundred years of disuse. This case presents a similar question: namely, whether the Neutrality Act of 1794 may be invoked by a plaintiff today without the government's involvement.

B. Factual Background

Dr. Bauer is an American citizen who was injured in a 2002 terrorist attack that was committed in Jerusalem. According to the complaint, the terrorist organization Hamas seized power in the Gaza Strip in 2007 and began carrying out attacks against civilian targets in Israel soon thereafter. Israel responded by imposing a naval blockade on the Gaza Strip. The plaintiff alleges that " anti-Israel organizations" in the United States and other countries retaliated by organizing efforts to breach the blockade and to provide support to Hamas. Compl. ¶ ¶ 9-11.

The plaintiff alleges that several organizations and individuals in the U.S. (such as the " Free Gaza Movement" and the " U.S. Boat to Gaza Project" ) raised funds that were ultimately used to equip the defendant vessels with the means to commit hostilities against the state of Israel. Id. ¶ ¶ 11-16. [1] Dr. Bauer relayed this allegation

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to the Attorney General. Id. ¶ ¶ 4, 5; see id., Ex. A. The plaintiff then filed suit under a forfeiture provision of the Neutrality Act, 18 U.S.C. § 962, which provides as follows:

Whoever, within the United States, furnishes, fits out, arms, or attempts to furnish, fit out or arm, any vessel, with intent that such vessel shall be employed in the service of any foreign prince, or state, or of any colony, district, or people, to cruise, or commit hostilities against the subjects, citizens, or property of any foreign prince or ...

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