Interesting New Decision About the Neutrality Act of 1794 and the Mavi Marmara Gaza Blockade Runner

From Bauer v. Marmara (D.D.C. Apr. 18, 2013):

This lawsuit arises from the Israeli naval blockade of the Gaza Strip …. 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….

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 Neutrality Act was designed to keep the United States from getting dragged into the conflict between England and France….

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. 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. Dr. Bauer relayed this allegation to the Attorney General. 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 state, or of any colony, district, or people with whom the United States is at peace; or

Whoever issues or delivers a commission within the United States for any vessel, to the intent that she may be so employed

Shall be fined under this title or imprisoned not more than three years, or both.

Every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores which may have been procured for the building and equipment thereof, shall be forfeited, one half to the use of the informer and the other half to the use of the United States.

The plaintiff alleges that the defendant vessels are subject to forfeiture under this provision, and that as an “informer” he is entitled to one half of the proceeds should the ships be seized….

[Extensive legal analysis omitted. -EV]

In sum, 18 U.S.C. § 962 lacks an express private cause of action, and the court declines the plaintiff’s invitation to imply one.

The court’s conclusion, then, is that while the government can institute forfeiture provisions — and, if it succeeds, the proceeds will be split with the person who informed the government of the violation — individual citizens can’t initiate the proceedings themselves.