IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

BERTRAM SACKS, Plaintiff,

v.

OFFICE OF FOREIGN ASSETS CONTROL, UNITED STATES DEPARTMENT OF THE TREASURY, et al., Defendants

Case No. C04-108JLR

Seattle, Washington, October 21, 2004

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TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE JAMES L. ROBART, UNITED STATES DISTRICT JUDGE

For the Plaintiff: Donald B. Scaramastra, Gary Swearingen, Garvey Schubert Barer, Eighteenth Floor, Second & Seneca Building, 1191 Second Avenue, Seattle, Washington 98101-2939

For the Defendants: Joshua Z. Rabinovitz, U.S. Department of Justice, Civil Division, 20 Massachusetts Avenue, NW, P.O. Box 883, Washington, D.C. 20001

Joseph F. Roth, Official Court Reporter, 600 U.S. Courthouse, Seattle, Washington 98104, (206) 553-1899, Proceedings recorded by computer-aided stenography.

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THE COURT: The Court is not prepared to rule from the Bench. I'm going to do something that's a little bit unusual. Mr. Sacks, would you like to address the Court?

MR. SACKS: I would, Your Honor.

THE COURT: You need your lawyer's consent, because I don't want you to -- anything that you say arguably the government can use in some future proceeding. But if you would like to take a couple minutes and speak, we'd be welcome to hear you.

MR. SACKS: Thank you very much. Shall I stand up?

THE COURT: Wherever you're most comfortable, sir.

MR. SACKS: Well, fine. Your Honor, there are two things that have impressed me very much since I came in. The first one is my deep respect for the proceedings of this Court, for your thoughtful questions, both to my attorney and Mr. Rabinovitz, and this part of our tradition, it's part of our country, that we, in a Court of law, are committed to find the truth under pieces of evidence, under the laws of evidence, and I honor that very much.

The second thing that struck me is that I'm obviously not a person versed in all the intricacies of the legal structures that are being argued here. But of all of the arguments, the one that most impressed me is a question, and it's a question in my mind, is if we have honored, accepted in some form either the Geneva Convention, the convention against genocide and the customary international law that we, I trust, should respect, then what prompted me in my trips to go to Iraq was the knowledge from the New England Journal of Medicine from 10 years ago when I first discovered it that 46,900 children in Iraq had died within the first eight months.

Now, I've been struggling for many years to find something that I could do that would help to be a responsible citizen of this country to stop this process which is clearly killing thousands of children every month.

If it is in fact correct that the customary international law that applies in this case, the rights of the children, the Geneva Convention, the Genocide Convention, cannot be brought in front of a domestic Court because the President has standing to overrule those customary international law, then that issue puts me, and I think all the other citizens of the country, in a quandary.

What can we do if we feel that some gross, terrible human rights violation is occurring under our government? And that to me is the central issue. I appreciate and honor the specific arguments on the details of the law and what it permits and does not permit.

But you said when I came in that you might have thought that I wasn't happy to be here under these circumstances. Actually, the issue for me for 10 years has been to find some way to raise this issue either in the media or in a Court of law, to find a way to honor -- to recognize what we've done, because if we don't recognize and know what we've done, my great fear is we'll do it again.

And what's happening in Iraq, to my mind, is very connected with these issues, and my fear is we have to find some way to prevent this from happening again.

I thank you.

THE COURT: Thank you, sir. Counsel, this was well presented. Mr. Sacks, you're right in that the issues that are before the Court many times involve legal principles that seem very separated from the facts that are also before the Court.

We will be in recess. We will try and get our order out on this as promptly as we can. Thank you very much.

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