Supplementary Discussion of the President's Powers Relating to the Seizure of the American Embassy in Iran

• Court: Department of Justice Office of Legal Counsel
• Decided: November 11, 1979
• Status: Published

Opinion

Supplementary Discussion of the President’s Powers Relating to the Seizure of the American Embassy in Iran

U n d er th e V ien n a C o n v e n tio n on D ip lo m atic R elations, d ip lo m ats are not su b je ct to any form o f arre st o r d e te n tio n even in case o f arm ed co n flict, th o u g h th eir m o v em en ts m ay be restricted . Ira n ’s c o n d u c t m ight be invoked in this case as a g ro u n d for su sp en d in g th e C o n v e n tio n , in w h ic h case n o n -fo rcib le reprisals ag ain st its d ip lo m a ts in this c o u n try m ay be used.

T h e P resid en t m ay use his c o n stitu tio n a l p o w e r to p ro te c t A m erican s ab ro ad , su b je ct to th e c o n su lta tio n an d re p o rtin g req u irem en ts o f the W ar P o w e rs R esolution. W hile not u n co n stitu tio n al o n th eir face, these req u irem en ts m ay h a v e a p p licatio n s w h ic h raise co n stitu tio n al q u estio n s insofar as th ey lim it th e P re sid e n t’s p o w e r as C o m m an d er-in - C hief.

T h e In tern atio n al E m e rg e n c y E co n o m ic P o w ers A c t and th e N atio n al E m e rg en cies A c t to g e th e r a u th o riz e th e b lo ck in g o f Iranian assets and th e su b seq u en t licensing o f p a rticu lar tran sactio n s. T h e se sta tu tes specify th e p ro c e d u re s to be follow ed in the ev en t su ch a co u rse is fo llow ed.

Novem ber 11, 1979

M EM 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

In response to your request we are providing additional details on some of the m atters discussed in our memorandum o f N ovem ber 7, 1979.

I. Treatment of Iranian Diplomats in the United States

T he Vienna C onvention on Diplom atic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A .S. No. 7502, ratified by Iran, the United States and all m ajor countries o f the world, codifies the law in this area. It is assumed to be self-executing and thus part o f dom estic law as w ell.1 A rticle 29 provides that a diplomat shall not be liable to any form of arrest or detention. Im m unity continues even in case o f armed conflict (Art. 39.2). T he United States vigorously opposed the latter provision at the time o f drafting, stating that it was unrealistic and did not represent universal practice. T he delegation pointed out that almost

'See, e.g., L etter from Assistant A tto rn ey G eneral Dixon to the A cting Legal A dviser, M ay 4, 1973, in the 1973 Digest o f U nited States Practice in In t’l L. 143, 144. T h e enactm ent o f the D iplom atic Relations A ct, P.L. 95-393, 22 U.S.C. §254a et seq. (Supp. II 1978), does not affect this conclusion. T he A ct does not purport to apply to stituations covered by the C onvention but com plem ents the C onvention by prescribing rules for non-parties and for m atters not covered explicity in the C onven­ tion, such as liability insurance.

123 every governm ent involved in W orld W ar II placed restrictions of some kind on the m ovem ent o f enemy diplomats and the w ithdraw al of their property. T he United States proposed an am endm ent w hich might well have applied here. It w ould have authorized the host state in time o f national em ergency, civil strife, or armed conflict to institute appro­ priate measures o f control with respect to mission funds and persons enjoying privileges and immunities and their property, including protec­ tive custody to insure their safety. It was defeated, how ever, by a vote of 38 to 6 with 26 abstentions. 7 M. W hitem an, Digest o f I n t’l Law 441. Despite this record there are a num ber o f approaches which can be used to mitigate the prohibition mentioned.

A. Protective Custody

A rticle 26 makes freedom o f travel subject to “ laws and regulations concerning zones entry into w hich is prohibited or regulated for rea­ sons o f national security.” T he dom estic legislative history o f the C on­ vention shows that “protective custody” could be justified under this provision. T he State D epartm ent Legal A dviser testified before the Senate Foreign Relations Com m ittee that this provision could be used in situations involving armed conflict to justify placing diplomats in protective custody. H e pointed out that while A rticle 29 prohibits arrest, it also provides that the host state shall take appropriate steps to prevent attacks on a diplom at’s person, freedom, and dignity. 7 M. W hiteman, supra at 442. A rticle 26 is not limited to times o f armed conflict. It is, in fact, used on an ongoing basis to restrict travel of foreign diplom ats particularly w here their countries impose restrictions on United States diplomats. Despite the reference to “ laws and regula­ tions” in A rticle 26, the State D epartm ent informs us that there is no special procedure for imposing such restrictions. T he appropriate em­ bassy is merely informed o f the restrictions. T he protective custody approach has one distinct advantage in that it may not technically constitute an arrest and authority can be gleaned from the text and dom estic legislative history o f the Convention. As we show below, it may be that we are no longer bound by the inhibition of A rticle 29 against arrest. This would, how ever, merely eliminate the prohibition; it w ould not, in itself, provide a valid ground under domes­ tic law for arrest w hich presumably could then be challenged for illegality as any other arrest may be. B. Reciprocity

A rticle 47.2(a) permits us to apply any o f the provisions o f the Convention restrictively because o f a restrictive application o f a provi­ sion to our embassy in Iran. It may, of course, be something o f a m isnomer to describe the conduct o f the occupiers o f the American embassy as a “ restrictive” application. Since that governm ent appears,

124 how ever, to have adopted this conduct as its own, w e w ould appear justified in similarly restricting the movem ent o f Iranian diplomats. T he D iplom atic Relations Act, supra note 1, reinforces the use of A rt. 47 by similarly providing for restriction of immunity: T he President may, on the basis o f reciprocity and under such term s and conditions as he may determine, specify privileges and immunities for members o f the mis­ sion, their families, and the diplomatic couriers o f any sending state w hich result in m ore favorable treatm ent or less favorable treatm ent than is provided under the Vienna Convention. 22 U.S.C. § 254c. T he legislative history shows that this was intended to be used as a tool to respond to arbitrary treatm ent o f Am erican diplomats: The conditions under w hich U.S. diplomatic personnel carry out their official functions and lead their lives in certain hardship areas dictate their enjoym ent of increased protection from harassment as a result o f arbitrary appli­ cation o f local law. This provision permits less favorable treatm ent than the Vienna C onvention and covers those cases w here certain nations restrict the privileges and immunities o f U.S. diplomatic personnel abroad. Any use of the discretion described in this section must be on a reciprocal basis with the nations involved. S. Rep. No. 958, 95th Cong. 2d Sess. 5 (1978).

C. Suspension o f Convention fo r Breach

T he discussion above has proceeded on the assumption that the Convention is still in force. T here has, how ever, been a material breach on the part o f the Iranians’ treaty obligation to protect our embassy and diplomats. In such a case, the United States may invoke the Iranian conduct as a ground for suspending the operation o f the Convention in whole or in part as far as the Iranians are concerned. Vienna C onven­ tion on the Law o f Treaties, A rt. 60, Senate Exec. L., 92d Cong., 1st Sess. (1971).2 In such a case we can consider ourselves not bound by the provisions pertinent to the situation at hand, such as immunity from detention or arrest, or from the whole Convention, should the President choose. As noted earlier, how ever, this would not by itself provide a valid legal basis for arrest but merely rem ove immunity from arrest. A lthough the C onvention provides for the right to leave the country,

2 T his treaty is not yet in force and has not been ratified by the U nited States. It is, how ever, generally cited as evidencing co n tem p o rary p ractice in this Held. Cf. Chariton v. Kelly, 229 U.S. 447. 473 (1913).

125 this could be suspended as well, particularly since Am ericans are being denied that right in Iran.

D. Reprisals fo r Breach

International law recognizes that, beyond suspending the effect of the treaty, “non-forcible” reprisals may be used in the case o f breach. Com m entary on Vienna Convention on L aw o f Treaties, [1966] 2 Y. B. Int’l L. C om m ’n 169, 253-54, U.N. Doc. A /C N .4 /S E R .A /1 9 6 6 /A d d .l.3 These reprisals may properly relate to the rights o f the Iranians under the C onvention. Ibid. In evaluating possible reprisals, it is useful in a m odern sense to think o f them as a m ethod o f com m unication: Reprisals are usually em ployed when w ords alone cannot influence the other p arty ’s decision and make it discon­ tinue w hat it is doing. T hey are subordinated to particular objectives and are used in limited selective, exemplified, and increm entary ways. Reprisals should be distinguished from m ere acts o f vengeance or o f destroying the oppo­ n ent’s capabilities. R ather, they are part of a political- diplom atic strategy for resolving and reconciling conflict­ ing interests. As such, com m unicative signals are built into them. T he success o f a reprisal may be judged by w hether it exerts the desired influence on the target, w hether it stands by itself o r is part o f a credible threat to expand the conflict further, if necessary. An effective reprisal, therefore, while seeking to narrow some o f the adver­ sary’s alternatives, should keep other alternatives open. This may be best achieved when retaliatory acts are un­ derstood to form part o f a com prehensive strategy that combines negative sanctions with positive inducements. D avid, T he Strategy o f T reaty Term ination: Lawful Breaches and Retaliations 234 (Yale Univ. Press, 1975). A t the present time w e are not aw are o f specific facts which, under United States law, w ould justify arrest o f individual Iranian diplomats even if there w ere no bar to their arrest under international law for the reasons specified. If they could be shown to be part o f a conspiracy (18 U.S.C. § 371) to dam age governm ent property (18 U.S.C. § 1361) there may be a basis. T he N eutrality A ct and other statutes involving crimes agajnst foreign governm ents or foreign property are generally directed to the protection o f foreign states. 18 U.S.C. § 951 et seq.

3T h e term “ non-forcible*' w ould appear to mean not involving the use o f arm ed force as prohibited by A rt. 2.4 o f the U.N. C h arte r rath er than m erely placing som eone under arrest. T he law o f reprisal o f an earlier period was not so restricted. 2 O ppenheim 's Int'l Law 114 (L auterpacht ed. 1935); 7 M oore. In t’l Law D igest 119 (1906). T his does not, o f course, limit the President s right to use force to directly free the hostages.

126 II. Use of Armed Forces Abroad

As we noted, the President may use his constitutional pow er to protect Americans abroad subject to the consultation and reporting provisions o f the W ar Pow ers Resolution. 50 U.S.C. § 1541 et seq.

A. Consultation Requirement

T he consultation requirem ent focuses on the use o f troops in hostile situations: T he President in every possible instance shall consult with Congress before introducing United States Arm ed Forces into hostilities or into situations w here imminent involvem ent in hostilities is clearly indicated by the cir­ cumstances, and after every such introduction shall con­ sult regularly with the Congress until United States Arm ed Forces are no longer engaged in hostilities or have been removed from such situations. 50 U.S.C. § 1542. (1) On its face consultation is required with “Congress.” This lan­ guage replaced an earlier version which merely required consultation with the leadership and appropriate com m ittees o f Congress. H. Conf. Rep. No. 547, 93d Cong. 1st Sess. 8 (1973); H. Rep. No. 287, 93d Cong. 1st Sess. 6 (1973). Nevertheless, as a practical m atter consultation with any more than a select group o f congressional leaders has never been attem pted. D uring the M ayaguez incident, about ten House- and eleven Senate members w ere contacted concerning the measures to be taken by the President. On the House side these included the Speaker, the m ajority and m inority leaders, and the chairm an and ranking minority members o f the House Com mittee on International Relations. Testi­ mony o f State D epartm ent Legal A dviser M onroe Leigh in War Powers: A Test o f Compliance Relative to the D anang Sealift, the Evacu­ ation o f Phnom Penh, the Evacuation o f Saigon, and the M ayaguez Inci­ dent, Hearings before the Subcom m ittee on I n t’l Security and Scientific Affairs o f the House Comm, on I n t’l Relations, 94th Cong. 1st Sess. 78 (1975) (hereafter War Powers : A Test o f Compliance). T he present Adm inistration has acknow ledged that there are practical limits to the consultation requirem ent and has said that meaningful consultations w ith “an appropriate group of congressional representatives should be possible.” Statem ent o f State D epartm ent Legal A dviser Hansell before the Senate Foreign Relations Com m ittee reprinted in State D epartm ent Bulletin, August 29, 1977 at 291, 292. (2) A determ ination must also be made as to when hostilities exist that require consultation. President F ord took the position, for example, that no consultation was legally required at the D anang or Lebanon evacuations because hostilities w ere not involved. Franck, A fter the

127 Fall: The N ew Procedural Framework fo r Congressional Control Over the War Power, 71 Am. J. In t’l L. 605, 615 (1977) (hereafter Franck). The State and Defense D epartm ents have said that “hostilities” means a situation in w hich A m erican forces are actively exchanging fire with opposing units and “im minent hostilities” means a situation w here there is a serious risk from hostile fire to the safety o f U.S. forces. Neither term was thought to encompass irregular or infrequent violence which may occur in a particular area. War Powers: A Test o f Compliance at 38-39. (3) In requiring consultation in “every possible instance,” Congress m eant to be firm yet flexible. H. Rep. No. 287, supra, at 6. T he use o f the w ord “ev ery ” reflects the com m ittee’s belief that such consultation prior to the comm itm ent of armed forces should be inclusive. In other words, it should apply in extraordinary and em ergency circum ­ stances—even w hen it is not possible to get formal con­ gressional approval in the form o f a declaration o f w ar or other specific authorization. A t the same time, through use o f the w ord “possible” it recognizes that a situation may be so dire, e.g., hostile missile attack underw ay, and require such instantaneous action that no prior consultation will be possible. Id. (Emphasis in original.) This A dm inistration has pointed out the problem that exists in em er­ gencies, noting that “ [B]y their very nature some emergencies may preclude opportunity for legislative debate prior to involvem ent o f the arm ed forces in hostile or potentially hostile situations.” It has recog­ nized, how ever, that consultation may be had “in the great m ajority of cases.” Statem ent o f Legal A dviser Hansell, supra. (4) T here may be constitutional considerations involved in the con­ sultation requirem ent. W hen President Nixon vetoed the Resolution he did not suggest that either the reporting or consultation requirem ents w ere unconstitutional. D epartm ent o f State Bulletin, N ovem ber 26, 1973, at 662-64; N either the F ord nor C arter adm inistrations have taken the position that these requirem ents are unconstitutional on their face.4 N evertheless, there may be applications w hich raise constitutional ques­ tions. This view was stated succinctly by State D epartm ent Legal A dviser Leigh: Section 3 o f the W ar Pow ers Resolution has, in my view, been drafted so as not to ham per the President’s exercise o f his constitutional authority. Thus, Section 3 leaves it to the President to determ ine precisely how

4 T h e only provision that this A dm inistration has suggested presents constitutional problem s related to the right o f C ongress to act by co n cu rren t resolution. See 123 C ong. Rec. 21,897 (1977).

128 consultation is to be carried out. In so doing the President may, I am sure, take into account the effect various possi­ ble modes o f consultation may have upon the risk of a breach in security. W hether he could on security grounds alone dispense entirely with “consultation” w hen exercis­ ing an independent constitutional pow er, presents a ques­ tion o f constitutional and legislative interpretation to which there is no easy answer. In my personal view, the resolution contem plates at least some consultation in every case irrespective of security considerations unless the President determines that such consultation is incon­ sistent w ith his constitutional obligation. In the latter event the President’s decision could not as a practical m atter be challenged but he would have to be prepared to accept the political consequences o f such action, which might be heavy. War Powers: A Test o f Compliance at 100.

B. Reporting Requirements

The reporting requirements apply to situations not only w here hostil­ ities are taking place or imminent (w hich requires consultation), but w here armed forces are sent to a foreign country equipped for combat. 50 U.S.C. § 1543. T he report must be filed within 48 hours. This has been interpreted as meaning 48 hours from the time that they are “ introduced” into the situation triggering the requirem ent and not from the time that the decision to dispatch them is made. E.g., Franck at 615. T he report must include: (A) the circum stances necessitating the introduction o f United States Arm ed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration o f the hostilities or involvement. R eports which have been filed in -the past have been brief and to the point; they have not run more than one or tw o pages. T he reference to legal authority has been one sentence, referring to the constitutional pow er as Com mander-in-Chief and C hief Executive. See War Powers: A Test o f Compliance at 75 (Mayaguez); The War Powers Resolution, R ele­ vant Documents, Correspondence, Reports, Subcomm. on Int’l Security and Scientific Affairs, House Comm, on In t’l Relations, 94th Cong., 1st Sess. 40 (Danang); 42 (Phnom Penh) (Comm. Print 1975).

129 III. Blocking Assets of Iranians

T he President may direct the T reasury D epartm ent to block assets of Iranians and to subsequently license particular transactions as desired. This pow er is provided by the International Em ergency Econom ic Pow ers Act (the A ct), P.L. 95-223, 91 Stat. 1626, 50 U.S.C. § 1701 et seq. (Supp. I 1977), in tandem with the National Em ergencies A ct, 50 U.S.C. § 1601. N either A ct has been invoked before, although there are well-established precedents for employing such controls under similar prior authority. E.g., Sardino v. F ederal Reserve Bank, 361 F.2d 106 (2d Cir.), cert, denied, 385 U.S. 898 (1966) (blocking Cuban assets). See generally 42 Op. A tt’y Gen. 363 (1968). If this course is to be followed, the following steps must be taken immediately: (1) Consultation with Congress: T he consultation requirement tracks that found in the W ar Pow ers Resolution (discussed in Part II, supra) and presumably can be interpreted in much the same way. 50 U.S.C. § 1703. Security is, o f course, necessary since advance warning will assist persons potentially affected in evading controls by w ithdraw ing assets from banks or rem oving currency from the country. Unlike the situation involving the W ar Pow ers Resolution, the President cannot argue here that he is exercising a constitutional pow er and thus avoid statutory restrictions. (2) Declaration o f a N ational Emergency: A proclam ation o f national em ergency is necessary to use the powers available under the Act. 50 U.S.C. § 1701. T he President is authorized to declare one pursuant to the National Em ergencies Act. 50 U.S.C. § 1621. F or purposes o f the A ct such an em ergency may be declared with respect to any unusual and extraordinary threat to the national security, foreign policy, or econom y o f the United States w hich has its source outside this country. 50 U.S.C. § 1701. This language was left broad to provide necessary discretion. H. Rep. No. 459, 95th Cong., 1st Sess. 10 (1977). We believe that the present em ergency meets the language o f the statute. A declaration can be short and to the point. T he President in this case could state: “I find that the situation in Iran constitutes an unusual and extraordinary threat to the national security, foreign policy and econom y o f the United States and hereby declare a national em er­ gency.” 5 T he courts will not review a determ ination so peculiarly within the province o f the President. See 42 Op. A tt’y Gen. at 370. (3) Designation o f Act: In the same proclam ation or by contem porane­ ous or subsequent executive orders, the President must designate the particular em ergency statute he wishes to invoke—T he International

5See Proc. 4074, 7 W eekly Com p. Pres. Doc. 1174 (A ugust 15, 1971) (“ I hereby declare a national em ergency d uring w hich I call upon the public and private sector to make the efforts necessary to strengthen the international econom ic position o f the U nited States*').

130 Em ergency Econom ic Pow ers Act. This is a requirem ent o f the N a­ tional Em ergencies Act. 50 U.S.C. § 1631. W e see no reason why this should not be done in the same docum ent that declares a national emergency. (4) Delegation: Since the statute vests pow ers directly in the Presi­ dent, any order should delegate pow er to an appropriate official. 3 U.S.C. §301. Presumably this would be the Secretary o f the Treasury who already administers similar programs. T he President could in the order (a) declare an immediate freeze by prohibiting the transactions listed in the A ct including transactions in foreign exchange, transfers of credit and paym ents between banking institutions, and im porting and exporting of currency in which any Iranian has an interest and (b) delegate to an appropriate official the powers to make exceptions and to administer the freeze and enforce the A ct. Compare Exec. O rder No. 11387, “G overning Certain Capital Transfers A broad,” 33 Fed. Reg. 47 (1968). This would avoid any enforcem ent gap between the issuance of the Proclam ation and implementation of the regulations by T reasury.6 (5) Publication and Transmittal to Congress: T he National E m ergen­ cies A ct requires that the em ergency proclam ation be immediately transmitted to Congress and published in the Federal Register. 50 U.S.C. § 1621. (6) Report to Congress: Following the issuance o f the order, the President shall “im mediately” transm it a report to the Congress specifying: (a) the circum stances which necessitate such exercise of authority; (b) w hy the President believes those circum stances con­ stitute an unusual and extraordinary threat, w hich has its source in whole or substantial part outside the United States, to the national security, foreign policy, or econ­ omy o f the United States; (c) the authorities to be exercised and the actions to be taken in the exercise o f those authorities to deal with those circumstances; (d) why the President believes such actions are neces­ sary to deal with those circumstances; and (e) any foreign countries with respect to w hich such actions are to be taken and why such actions are to be taker, with respect to those countries.

6W e have been show n a proposal w hich is limited to freezing funds o f Iranian students, w hich contem plates an effective date one week from issuance o f the executive order. This w ould not seem to accom plish its purpose since it w ould enable students to draw funds from banking institutions in anticipation o f the ban. M oreover, it is not clear w h eth er the banks could effectively adm inister an initial freeze limited to students since they may not have records to show just w hich Iranian accounts belong to students. It should be noted, how ever, that if the students w ere to w ithdraw funds from the banks following the effective date, they w ould be com m itting a federal crim e in doing so. 50 U.S.C. § 1705.

131 50 U.S.C. § 1703(b). T he legislative history indicates that this requirem ent was not to impede use o f em ergency power. T he House report notes: N othing in this section should be construed as requiring submission o f a report as a precondition o f taking action w here circum stances require prom pt action prior to or simultaneously with submission o f a report. H. Rep. No. 459, supra at 16. This provision is modeled on the W ar Pow ers Resolution. As indicated in Part II above, the practice under that resolution is to file very brief reports.

Jo hn M. H arm on

Assistant Attorney General Office o f L egal Counsel