Presidential Powers Relating to the Situation in Iran

• Court: Department of Justice Office of Legal Counsel
• Decided: November 7, 1979
• Status: Published

Opinion

Presidential Powers Relating to the Situation in Iran

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N ovem ber 7, 1979

M E M O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L

This m em orandum addresses, on an urgent basis, possible responses to the situation in Iran. O ur conclusions are as follows: 1) T he President may block Iranian assets upon the declaration o f a national em ergency under the International Em ergency E conom ic Pow ers A ct (IE E PA ). An oil boycott w ould be such an em ergency. This A ct also provides authority to halt transactions including im ports and exports. 2) W ithout declaration o f an em ergency, the President may prohibit or curtail the export o f goods in situations threatening Am erican na­ tional security or stated foreign policy goals under the E xport Adm inis­ tration A ct o f 1979. 3) T he President may restrict the m ovem ent o f Iranian diplom atic and consular personnel and m ay take non-forcible reprisals. 4) Except in time o f w ar the United States cannot intern Iranian nationals. 5) T he President has the constitutional pow er to send troops to aid Am erican citizens abroad. This pow er is subject to the consultation and reporting provisions o f the W ar Pow ers Resolution.

I. Authority to Impose Economic Controls

A. The International Emergency Economic Powers A ct

T he President has wide-ranging pow er to regulate direct foreign investment under the International E m ergency Econom ic Pow ers A ct, Pub. L. No. 95-223, title II, 50 U.S.C. §§ 1701-1706 (Supp. I 1977), enacted in 1977. T he A ct authorizes the President, after declaration o f a national em ergency, to block all assets in the United States o f Iran and Iranian

115 nationals and to prohibit or regulate all im portation o r exportation of property in w hich Iran o r Iranians have an interest. T he IE E P A provides in relevant part: Sec. 202. (a) A ny authority granted to the President by section 203 may be exercised to deal w ith any unusual and extraordinary threat, w hich has its source in whole or substantial part outside the U nited States, to the national security, foreign policy, o r econom y o f the United States, if the President declares a national em ergency with re­ spect to such threat. (b) T he authorities granted to the President by section 203 may only be exercised to deal w ith an unusual and extraordinary threat w ith respect to w hich a national em ergency has been declared for purposes o f this title and may not be exercised for any other purpose. A ny exercise o f such authorities to deal w ith any new threat shall be based on a new declaration o f national em ergency w hich must be w ith respect to such threat. Sec. 203. (a)(1) A t the times and to the extent specified in section 202, the President may, under such regulations as he may prescribe, by means o f instructions, licenses, or otherw ise— (A) investigate, regulate, o r prohibit — (i) any transactions in foreign exchange, (ii) transfers o f credit or paym ents between, by, through, or to any banking institution, to the extent that such transfers or paym ents involve any interest o f any foreign country or a national thereof, (iii) the importing or exporting o f currency or securities; and (B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exporta­ tion of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any prop­ erty in which any foreign country or a national thereof has any interest; by any person, o r w ith respect to any property, subject to the jurisdiction o f the United States. 50 U.S.C. §§ 1701, 1702(a)(1). (Em phasis added.) 1 It is clear that once the President declares a national em ergency under the IE E P A , he

’ T h e statute denies the President au th o rity to regulate com m unications and m ost hum anitarian activities. Id. § 1702(b).

116 assumes plenary control over all foreign assets subject to the jurisdic­ tion of the United States, and he may regulate or prohibit m ovem ents o f foreign or dom estic currency or credit in and out of the country. In the IE E P A , Congress (perhaps intentionally) left the definition of “national em ergency” ostentatiously vague.2 This may reflect either the difficulty of defining all possible situations which could constitute a national em ergency o r the recognition that w hat constitutes a national em ergency is essentially a political question depending upon the felt necessities o f a particular political context. H ow ever, the legislative history indicates that an oil em bargo could institute a national emergency. D uring the markup o f the bill in the Com m ittee on International Relations, the following exchange betw een Representatives Solarz and Bingham, the latter being Chairm an o f the Subcom m ittee that consid­ ered the legislation, took place: Mr. Solarz. F or argum ent sake, let us say there was an­ other oil embargo. W ould that constitute potentially the kind o f nonw ar national emergency? Mr. Bingham. I think quite clearly it would. Mr. Solarz. If it would, and the President declared a national em ergency pursuant to such an embargo, could you explain in lay language w hat precisely he would be able to do under his powers? W hen it talks about regulat­ ing the controlling [sic] foreign assets, does that mean he could freeze the assets o f the boycott [sic] o f the country that established the embargo? Mr. Bingham. C orrect, freeze but not seize. T here is a difference. Mr. Solarz. So if he had money he could tie it up and say in effect w hen you lift the embargo, we will lift the freeze? Mr. Bingham. T hat is correct. He can regulate exports in a m anner not regulated by the Export Adm inistration Act.

2 See H.R. Rep. No. 459, 95th Cong., 1st Sess. 10 (1977): [G]iven the breadth o f the authorities and their availability at the President's discretion upon a declaration o f national em ergency, th eir exercise should be subject to various substantive restrictions. T h e main one stem s from a recognition that em ergencies are by their nature rare and brief, and are not to be equated w ith norm al, ongoing problems. A national em ergency should be declared and em ergency authorities em ­ ployed only w ith respect to a specific set o f circum stances w hich constitute a real em ergency, and for no o th e r purpose. T h e em ergency should be term inated in a timely m anner w hen the factual state o f em ergency is o v e r and not continued in effect for use in o th e r circum stances. A state o f national em ergency should not be a norm al state of affairs.

117 Mr. Solarz. W hich means he could in effect establish an em bargo on exports to that country? Mr. Bingham. C orrect. Revision o f Trading With the Enem y Act, M arkup Before the House Comm, on International Relations, 95th Cong., 1st Sess. 4 (1977). D eclaration o f a national em ergency under the IE E P A implicates provisions o f the National Em ergencies A ct, Pub. L. No. 94-412, 50 U.S.C. §§ 1601-51. See H.R. Rept. No. 459 at 14 (1977). Section 204(d), 50 U.S.C. § 1703(d), provides that the consulting and reporting obliga­ tions placed on the President “are supplem ental to those contained in title IV o f the National Em ergencies A ct.” And the National Em ergen­ cies A ct states in no uncertain term s that “ [n]o law enacted after the date o f enactm ent o f this A ct shall supersede this title [concerning declaration o f a national em ergency and congressional pow er to term i­ nate] unless it does so in specific terms, referring to this title, and declaring that the new law supersedes the provisions of this title.” 50 U.S.C. § 1641. Thus, should the President declare a national em ergency under the IE E P A arising out o f an energy crisis, he must (a) transmit the declaration and a report justifying it to C on­ gress and publish the declaration in the Federal Register (50 U.S.C. § 1703); (b) keep and transm it to C ongress records o f all executive orders, proclam ations, rules, and regulations (id., § 1641); (c) transm it to C ongress every six m onths a report on expendi­ tures directly attributable to the exercise o f em ergency authori­ ties (id.); (d) report to C ongress every six m onths actions taken in the exercise o f the em ergency authorities (id., § 1703(c)). F urtherm ore, the legislative veto provision o f the National E m ergen­ cies A ct, § 202(a)(1), applies to the President’s declaration o f a national em ergency under the IE E P A ; and § 207(b) o f the IE E P A provides further that Congress may term inate the President’s exercise o f author­ ity saved by IE E P A ’s grandfather clause, § 207(a)(1). President C arter noted his “serious concern” over the unconstitutionality o f § 207(b) at the time he signed the IE E P A . Pub. Papers o f Jim m y C arter 2187 (Dec. 28, 1977). W e believe C ongress may not constitutionally term i­ nate the exercise o f these authorities by passage o f a concurrent resolu­ tion not submitted to the President pursuant to A rticle I, § 7 o f the Constitution. W hile the A ct has not been used, the constitutionality o f its predeces­ sors has been upheld. E.g., Nielsen v. Secretary o f Treasury, 424 F.2d 833 (D .C . Cir. 1970); Pike v. United States, 340 F.2d 487 (9th Cir. 1965); Sordino v. Fed. Res. Bank, 361 F.2d 106 (2d Cir.), cert, denied 385 U.S. 898 (1966).

118 B. Export Controls

T he new Export Adm inistration A ct o f 1979 (Pub. L. No. 96-72, to be codified at 50 U.S.C. App. § 2401 et seq.) contains tw o separate grants of pow er to the President to prohibit or curtail the export of goods and technology that are subject to the jurisdiction o f the United States. Both o f these provisions state that the authority is to be exer­ cised by the Secretary o f Com m erce by means of export licenses. T he first provision, § 5(a), is meant to implement the A c t’s policy to restrict exports that “ would make a significant contribution to the military potential o f any other country . . . which would prove detrim ental to the national security o f the United States.” (§ 3(2)(A)). T he second provision is meant to implement the A c t’s policies to restrict exports “to the extent necessary to further significantly the foreign policy o f the United States or to fulfill its declared international obligations,” (§ 6(a)) a phrase that is apparently limited by an accom panying cross- reference to the A c t’s policies o f securing removal of foreign restric­ tions on our supplies in certain circum stances, and of discouraging the provision o f aid or sanctuary to international terrorists. E ither or both o f these grants o f pow er may prove responsive to the Iranian situation. T he A ct sets some substantive restrictions on presi­ dential discretion that are not outlined above (e.g., he may not limit exports o f medicines). It also includes com plicated provisions for the Secretary to follow in issuing or denying licenses.

II. Diplomatic and Consular Persons and Property

A. Rights o f Iranian Diplom ats

T he rights o f diplomats are codified in the Vienna C onvention on Diplom atic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A .S. No. 7502. The United States and Iran are both parties to the Convention. A rticle 39 o f the Vienna C onvention on D iplom atic Relations, 23 U.S.T. 3227, provides that privileges and immunities continue even in case o f armed conflict. T he United States opposed this provision be­ cause it would preclude custody in wartime, 7 M. W hiteman, Digest of Int’l Law 441, but did not enter a reservation to it. T he State D epart­ ment Legal A dviser expressed the view during hearings on the conven­ tion that A rticle 26, which permits regulation o f the travel o f diplomats for reasons o f national security, w ould permit custody. Id. at 442. Thus, it might be possible to place their diplomats in a situation akin to house arrest under A rticle 26. H ow ever, they w ould be free to leave the country. A rticle 44. This conclusion is reinforced by the fact that it appears that Iran has been guilty o f massive breach o f its obligation under the C onvention to protect United States diplomats and diplomatic property. A material breach of a multilateral treaty by one o f the parties entitles a party

119 specially affected by the breach to invoke it as a ground for suspending the operation o f the treaty in w hole or in part in the relations between itself and the defaulting state. Vienna C onvention on the Law o f T rea­ ties, A rt. 60, Senate Exec. L., 92d Cong., 1st Sess. (1971).

B. D iplom atic Property

T he Diplom atic C onvention further provides that the host state must respect and protect the premises of the mission together with its prop­ erty and archives even if diplom atic relations are broken off. On the other hand a violation o f a treaty obligation, as o f any other obligation, may give rise to a right “ to take non-forcible reprisals.” Com m entary on Vienna Convention on L aw o f Treaties, [1966]. 2 Y.B. Int’l L. Com m ’n 169, 253-54. W e make no recom m endation as to w hat an appropriate reprisal may be.

C. Consular Offices

T he T reaty o f Am ity, Econom ic Relations, and C onsular Rights, Aug. 15, 1955, United States-Iran, 8 U.S.T. 899, T.I.A .S. No. 3853, provides for protection o f consular officers (Art. X III) and for the normal privileges and immunities. In addition, both the United States and Iran are parties to the subsequent Vienna C onvention on Consular Relations, A pr. 24, 1963, 21 U.S.T. 77, T.I.A .S. No. 6820. T he Consular C onvention includes provisions for protection o f consular posts com pa­ rable to those in the D iplom atic C onvention (Arts. 26, 27, 34 and our observations w ould similarly apply.)

III. Iranian Nationals

T he President has statutory authority to intern or expel enemy aliens. H ow ever, this pow er is available only in time o f w ar or invasion, 50 U.S.C. § 21, and thus cannot be invoked at present. T he Suprem e C ourt has held this provision constitutional. Ludecke v. Watkins, 335 U.S. 160 (1948). T he Suprem e C ourt has also upheld the constitutionality o f curfews and exclusion orders directed solely at persons o f Japanese ancestry (including A m erican citizens) during W orld W ar II, Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943). T he court invalidated detention orders as beyond the statutory authority o f the W ar Relocation A uthority w ithout reaching the constitutional issues. E x Parte Endo, 323 U.S. 283 (1944). T hese orders w ere authorized by a statute w hich was repealed in 1976. Section 501(e) o f P.L. No. 94-412, the National Em ergencies Act. N o com parable statute exists today.

120 IV. Use of Troops

A. Constitutional Power

It is well established that the President has the constitutional pow er as C hief Executive and Com m ander-in-Chief to protect the lives and property o f Am ericans abroad. This understanding is reflected in judi­ cial decisions, e.g., D urand v. Hollins, 8 Fed. Cas. I l l (No. 4186) (C.C.S.D.N.Y. 1860) quoted in T he C onstitution o f the United States: Analysis and Interpretation 562-63 (1973), and recurring historic prac­ tice which goes back to the time o f Jefferson. E.g., B orchard, The Diplom atic Protection o f Citizens A broad 448-53 (1915). This pow er has been used conspicuously in recent years in a variety o f situations. These include: landing troops in the Dom inican Republic to protect the lives of citizens believed to be threatened by rebels (1965), the D anang sealift during the collapse o f Vietnam defense (1975), the evacuation of Phnom Penh (Cambodia, 1975), the evacuation o f Saigon (1975), the Mayaguez incident (1975), evacuation o f civilians during the civil w ar in Lebanon (1976), and the dispatch o f forces to aid Am erican victims in Guyana (1978).

B. The War Powers Resolution

T he W ar Pow ers Resolution, 50 U.S.C. § 1541 et seq., does not limit the President’s pow er to act in this instance. Its consultation and report­ ing requirem ents are, how ever, both triggered by situations w hich in­ volve the introduction o f armed forces into hostilities, o r into situations w here imminent involvem ent in hostilities is clearly indicated. See 50 U.S.C. §§ 1542, 1543.3 In addition, reporting to Congress is also re­ quired by the Resolution when armed forces are sent to a foreign country equipped for combat, or when they are sent in numbers w hich substantially enlarge the forces equipped for com bat already in a for­ eign nation. See 50 U.S.C. § 1543. T he Resolution includes in its statem ent o f purposes and policy a list o f situations in which the President is authorized to introduce the armed forces into hostilities or situations o f imminent hostility. See 50 U.S.C. § 1541(c). Protection o f Am erican citizens abroad is not there mentioned. H ow ever, we do not consider that the purpose and policy statement should be construed to constrain the exercise o f the Presi­ d ent’s constitutional pow er in this instance. First, the Resolution’s policy statem ent is not a com prehensive or binding formulation o f the President’s powers as Commander-in-Chief.

3 T here have been, since the enactm ent o f (he Resolution, four instances o f protection and evacu­ ation w here its provisons applied. See War Powers: A Test o f Compliance Relative to the Danang Sealift, the Evacuation o f Phnom Penh, the Evacuation o f Saigon, arid the Mayaguez Incident, Hearings Before the Subcommittee on International Security and Scientific Affairs o f the House Comm, on International Relations, 94th C ong., 1st Sess. (1975).

121 See H. Conf. Rep. 547 93d Cong., 1st Sess. 8 (1973) (stating that subsequent sections o f the Resolution are not dependent on the policy statem ent). M oreover, Senator Javits, Senate M anager o f the C onfer­ ence Bill, when asked w hether the President has “authority to act unilaterally to rescue Am erican nationals in danger abroad who might be found in the midst o f rebellion or the threat o f w ar,” replied: I think the normal practice w hich has grow n up on that is that it does not involve such a utilization o f the forces of the United States as to represent a use o f forces, apprecia­ bly, in hostilities so as to constitute an exercise o f the w ar pow er or to constitute a com m itm ent o f the Nation to war. 119 Cong. Rec. 33,558 (1973). In view o f this “normal practice,” it would seem that the failure in the R esolution’s statem ent o f purpose and policy to list the recognized Presidential pow er o f protecting Am erican citizens abroad is itself an indication that the list therein was not meant to be exhaustive.4 Finally, the Resolution itself disclaims any intent to alter the constitu­ tional pow er o f the President, such as has been discussed in this memo­ randum, see 50 U.S.C. § 1547(d)(1), and it probably could not.

Jo hn M. H arm on

Assistant Attorney General Office o f L egal Counsel

ASee F ran ck , A fter the Fall: The N ew Procedural Framework fo r Congressional Control Over the War Power, 71 A m . J. Int'l L. 605, 613, 626 (1977).