The President's Authority to Take Certain Actions Relating to Communications from Iran

• Court: Department of Justice Office of Legal Counsel
• Decided: December 27, 1979
• Status: Published

Opinion

The President’s Authority to Take Certain Actions Relating to Communications from Iran

T h e P resid en t has s ta tu to ry and co n stitu tio n al a u th o rity , su b ject to F irst A m e n d m e n t lim itations, to lim it o r e m b a rg o a lto g e th e r v id e o o r a u d io c o m m u n ic a tio n s fro m Iran w h ic h a g g ra v a te th e p resen t crisis, e ith e r unilaterally o r in c o m p lia n c e w ith U nited N atio n s S ecu rity C o u n c il sanctions.

T h e F irst A m en d m en t req u ires th at an y actio n taken to lim it c o m m u n ic a tio n s from Iran b e n a rro w ly tailo re d and sw eep no m o re b ro a d ly than th e u n d erly in g ju stificatio n requires. A restrictio n th at se v ers all c o m m u n icatio n s links w ith Iran w o u ld be subject to less ex actin g F irst A m en d m en t sc ru tin y th an a m o re lim ited re stric tio n based in w h o le o r in p a rt on th e c o n te n ts o f th e com m u n icatio n .

Decem ber 27, 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

You have asked us to provide an overview o f the legal issues raised by executive action, either unilaterally or in com pliance w ith United Nations Security Council sanctions, that w ould have the effect o f pro­ hibiting im portation o f certain types o f television messages or transm is­ sions from Iran. Specifically, the action would address video messages that aggravate the hostage situation by creating in the minds o f the captors the impression that they have a vehicle for manipulating public opinion in this country. These video messages might include statem ents by the A yatollah Khomeini, messages from the student captors, or tapes o f mob dem onstrations in front o f the Am erican Embassy in Tehran. We consider first the President’s statutory and constitutional authority to proceed with and w ithout a Security Council resolution. W e then outline the First Am endm ent limits on that authority.

I. Authority

A rticle 41 o f the United Nations C harter gives the Security Council authority to “decide w hat measures not involving the use o f armed force are to be em ployed to give effect to its decisions.” T he range of measures appears to be quite broad, and may “ include com plete or partial interruption o f econom ic relations and o f rail, sea, air, postal, telegraphic, radio, and other means o f com m unication, and the sever­ ance o f diplom atic relations.” Therefore, A rticle 41 can be construed to include an international news embargo: a com plete o r selective restric­ tion o f news transm itted—either directly o r indirectly—from a particu-

153 lar country. It w ould at the very least include severance o f the means o f transmission that link the em bargoed country with the outside world, e.g., m icrow ave transmission links. U nder 22 U.S.C. §287c, the President by executive order may imple­ ment a Security Council resolution and, to that end, . . . investigate, regulate or prohibit, in w hole or in part, econom ic relations o r rail, sea, air, postal, telegraphic, radio, and other means o f com m unication between any foreign country or any national thereof or any person therein and the United States or any person subject to the jurisdiction thereof, or involving any property subject to the jurisdiction o f the United States. W e think that this provision does constitute a broad grant o f authority by C ongress to the President. Subject to First Am endm ent limitations, it would appear to em pow er him to prevent im portation o f video or audio messages from Iran, certain leaders o f that nation, or particular citizens within that nation, and thereby prevent their display to the Am erican people via radio and television. Section 287c(b) states that anyone convicted o f violating such an executive order w ould be subject to a fine o f not m ore than $10,000 and im prisonment o f not m ore than 10 years. In the event o f violation by a corporation, §287c provides for the fining and im prisonment o f officers, directors, and agents o f the corporation and the seizure o f corporate property involved in the violation. (T here is no injunctive provision in the statute.) Should the President wish to impose a message em bargo unilaterally, i.e„ w ithout the benefit o f a Security Council resolution, other sources o f statutory and constitutional authority are arguably available to him.

1. T he International Em ergency Econom ic Pow ers A ct (IE E PA ), 50 U.S.C. § 1701-06 (Supp. I 1977), affords the President the authority in a national em ergency to . . . investigate, regulate, direct and compel, nullify, void, prevent o r prohibit, any acquisition, holding, withholding, use, transfer, w ithdraw al, transportation, im portation or exportation of, o r dealing in, or exercising any right, pow er, o r privilege w ith respect to, or transactions in­ volving, any property in w hich any foreign country o r a national thereof has any interest; by any person, or with respect to any property, subject to the jurisdiction o f the United States. 50 U.S.C. § 1702(a)(1)(B). T hat authority is subject to the significant proviso that it does not include “the authority to regulate or prohibit directly o r indirectly any postal, telegraphic, telephonic, or other per­

154 sonal communication, which does not involve a transfer o f anything of value.” 50 U.S.C. § 1702(b). Because o f this proviso we think there are some restrictions directed tow ard com m unications that are not within the term s o f the IE E P A . W e think that the A ct could properly be invoked to limit the use of Iranian facilities by Am erican netw orks including the use o f broadcast­ ing studios, transmission lines, and local film crews. In short, the eco­ nomic dimension o f news broadcasting could be directly regulated. But it probably does not afford authority to regulate the com m unications dimension p er se. On this distinction between econom ic and noneco­ nomic considerations, tw o statem ents in the pertinent House com m ittee report are w orth review: As a further substantive constraint, the scope o f the au­ thorities should be clearly limited to the regulation o f international economic transactions. T herefore the bill does not include authorities m ore appropriately lodged in other legislation, such as authority to regulate purely d o ­ mestic transactions or to respond to purely dom estic cir­ cumstances, or authority to control noneconomic aspects o f international intercourse such as personal com m unica­ tions or humanitarian contributions. H. Rep. No. 459, 95th Cong., 1st Sess. 10-11 (1977). T he report goes on to state: [W]hile it should be the purpose o f the legislation to authorize tight controls in time o f national em ergency, these controls should not extend to the total isolation of the people o f the United States from the people o f any o th er country. Such isolation is not only unwise from a foreign policy standpoint, but enforcem ent o f such isola­ tion can also entail violation o f First Am endm ent rights o f freedom o f expression if it includes, for example, prohibi­ tions on exchange o f printed matter, or on hum anitarian contributions as an expression o f religious convictions. Id. at 11.

2. A second, and probably the best, source o f statutory authority is 22 U.S.C. § 1732. It provides: W henever it is made known to the President that any citizen o f the United States has been unjustly deprived o f his liberty by o r under the authority o f any foreign gov­ ernment, it shall be the duty o f the President forthw ith to demand o f that governm ent the reasons o f such im prison­ ment; and if it appears to be -wrongful and in violation o f the rights o f Am erican citizenship, the President shall

155 forthw ith dem and the release o f such citizen, and if the release so dem anded is unreasonably delayed or refused, the President shall use such means, not am ounting to acts o f war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be com m uni­ cated by the President to Congress. T his provision was passed by C ongress in 1868 and has never been utilized. It is striking both in the breadth o f the authority it confers and in its apparent textual appropriateness for the present situation. We think that this section can plausibly be read to authorize the President to take all actions—short o f acts o f w ar and consistent with specific constitutional prohibitions—necessary to obtain the release o f the hos­ tages.

3. T he President arguably has statutory authority to prevent the use o f C O M SA T satellites for the broadcast o f inflam m atory newsreels from Iran. Section 721 o f Title 47 o f the United States Code gives the President authority to (4) exercise such supervision over relationships of [COM SAT] w ith foreign governm ents or entities or with international bodies as may be appropriate to assure that such relationships shall be consistent w ith the national interest and foreign policy o f the United States. T he problem with relying on this section in the proposed fashion is that the President is not attem pting to regulate the relationship o f C O M SA T with a foreign nation, but w ith Am erican corporations that are attem pt­ ing to transm it inform ation about that nation. W hile w e have not had time as yet to study the application o f this statute, w e are unaware of any occasion on w hich this pow er has been utilized.

4. Finally, there is an argum ent that the President has the inherent constitutional authority to take the proposed action on the basis o f his plenary role in foreign affairs. United States v. Curtiss-W right Export Corp., 299 U.S. 304, 320 (1936). T hat is, in the absence o f an express limitation on his authority by Congress, the President can take all action necessary to protect A m erican nationals overseas, unless again these actions violate specific constitutional restrictions. Analysis would proceed along the lines o f Mr. Justice Jackson’s concurrence in Youngs­ town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952). An argum ent similar to the one w e have presented to the D.C. Circuit in the Iranian student deportation case could be made. T he President’s pow er, w e could contend, is at its greatest in this arena because he has considerable and well recognized constitutional pow ers in the foreign affairs area, and those pow ers have been augm ented by C ongress’

156 delegation to the President o f all the pow er the legislature possesses to respond to acts by foreign powers that deprive Am ericans o f their liberty (i.e., the 1868 untested statute). Even w ithout relying on that particular statutory delegation, we could argue that the President is moving into Mr. Justice Jackson’s “zone o f tw ilight” w here exigency demands that the constitutional scheme perm it prom pt executive action, although a similar restriction w ould be within the legislative pow er o f Congress. It should be noted that a potential response to this argum ent is that by passing the IE E P A , Congress has defined the express m anner by which the President is to impose nonm ilitary sanctions on a foreign government. In considering w hich “authority” base to assert, it will be im portant to weigh the fact that under both the U.N. sanction alternative and under IE E P A a criminal sanction is readily available. Absent reliance on ill-fitting espionage laws, there are no criminal sanctions for failures to com ply with actions based on the President’s constitutional pow ers or on the 1868 statute.

II. First Amendment

Regardless w hether the President relies on a Security Council resolu­ tion or some other basis for the proposed action, he still is bound by First Am endm ent limitations. It is clear that U.S. treaty obligations are subject to constitutional scrutiny and, specifically, First A m endm ent scrutiny. R eid v. Covert, 354 U.S. 1 (1957). T he First A m endm ent protects the rights o f Am ericans to receive inform ation and ideas, including those from abroad. Kleindienst v. Mandel, 408 U.S. 753, 762- 63 (1972). T he nature o f First A m endm ent scrutiny will depend upon the type o f restriction imposed by Security Council or independent executive action. T he proposed action might simply consist o f a ban on certain specified types o f television broadcasts. Transmission o f the broadcast despite the ban could subject the netw ork to criminal sanctions, but there would be no prior restraint. Alternatively, the President might institute a licensing scheme w hereby all broadcasts o f a particular class must be cleared by federal authorities before they can be broadcast domestically. This is a classic prior restraint and subject to m ore exact­ ing scrutiny. W hether seen as a prior restraint o r as a less severe form o f action, the governm ent—as a minimum—must put forw ard a “com pelling in­ terest” in order to justify the restriction. M oreover, there must be a close nexus betw een the proposed restriction and the purported interest, e.g., Police Departm ent o f the C ity o f Chicago v. Mosely, 408 U.S. 92, 95- 96 (1972), and the action taken must be narrow ly tailored and may sweep no m ore broadly than the underlying justification requires. T he justification in this case m ight be that the Iranian governm ent’s and the

157 cap to rs’ ability to gain access to Am erican television prolongs the captivity o f the hostages by affording the abductors a stage that they are unwilling to yield, and that if they are denied the organs of publicity, the rationale for holding the hostages will dissipate, resulting in their release. This characterization o f the United States’ interest necessarily prom pts a subsidiary question. Precisely w hat com munications prolong the crisis? If the proposed restrictions are too narrow , thus permitting effective publication o f Iranian grievances in some form, it can be argued that the United States does not have a com pelling interest in the restriction actually imposed because it does not materially advance the stated governm ent interest. If, on the other hand, the restriction is stated broadly, such as a ban on all display o f film generated in Iran, the restriction will be subject to the argum ent that it is overbroad, particularly if the print media could continue to use pictures from Iran. A ny restriction must have a clearly defined purpose and an intelligible scope in light o f that purpose if there is to be any chance o f passing judicial scrutiny. O f course, an even m ore dem anding standard w ould apply if the action includes a licensing system w hereby the Executive w ould pass on telecasts before they are transm itted to the Am erican public. As the Suprem e C ourt has repeatedly stated, any “system o f prior restraints of expression com es to this C ourt bearing a heavy presumption against its constitutional validity.” N ew York Times Co. v. United States, 403 U.S. 713, 714 (1971). W hatever the justification here, we would have a difficult time dem onstrating the sort o f direct, immediate and irrepara­ ble harm required to w ithstand this most exacting form o f scrutiny. The cases, as confirm ed by our experience w ith the Iranian student dem on­ strations, do how ever suggest tw o guiding considerations: (1) a court is likely to accord substantial deference to the factual assertions and educated, albeit speculative, judgm ents o f the President’s foreign affairs experts; and (2) our chances o f success may turn significantly on the extent to w hich we can dem onstrate to a court that the action taken is finely tuned and narrow . Indeed, the few cases that are close to being on point suggest that w e w ould im prove the likelihood o f success if we can claim that the regulation here affects only time, place, o r manner and is not designed to stifle the flow o f ideas o f information. W e note that the com m unications em bargo could take a third form that m ight raise less troublesom e First A m endm ent problem s but which w ould probably have limited practical effect. T hat w ould be a restric­ tion that simply severs all telegraphic, telephonic, postal, com m unica­ tions satellite, and m icrow ave links w ith Iran. This w ould not be a content-based m easure and w ould be subject to less exacting First A m endm ent scrutiny as a result. It could be justified as another step in the effort to isolate Iran politically and econom ically from the rest of

158 the world. As a practical measure, we do not think, how ever, such a restriction would prove useful. Am erican networks could continue to gather film in T ehran and transmit it to the United States from facilities outside Iran. It would probably have only a tem porary disruptive effect on the ability o f the abductors to comm and international and Am erican forums. It was this type o f incidental restriction on First Am endm ent com m u­ nication that this Office addressed in 1977, when at issue was a p ro ­ posed executive order prohibiting the use o r transfer o f any funds within the United States for the purpose o f maintaining in this country an office or agent o f the governm ent o f Rhodesia. This order was intended to implement U.N. Resolution 409. Since one effect o f the order would be the closing o f the Rhodesian Inform ation Office in the United States, it was argued by opponents of the order that the neces­ sary consequence would be to reduce unconstitutionally the flow of ideas in this country. We advised that since the impact on the Inform a­ tion Office was merely incidental to this G overnm ent’s legitim ate inter­ est in joining the U.N. effort to effect the diplom atic and econom ic isolation o f Rhodesia, the order w ithstood First Am endm ent scrutiny. It was not an attem pt to restrict com m unication per se. See, e.g., Veter­ ans and Reservists fo r Peace in Vietnam v. Regional Commissioner, 459 F.2d 676 (3d Cir.), cert, denied, 409 U.S. 933 (1972) (Trading with the Enem y A ct restriction on unauthorized dealings in m erchandise consti­ tutional although literature within definition of merchandise).

III. Conclusion

O ur thoughts here are necessarily preliminary, and we will continue to consider these issues as well as the m ore long-range question o f the possible effects of any action touching these types o f communications. O ur assessment at this stage, how ever, is, first, that an acceptable authority base for action either through the United Nations o r unilater­ ally can be found and that, second, any action we can hypothesize carries with it significant First Am endm ent problems.

L arry A. H am m ond

Acting Assistant Attorney General Office o f Legal Counsel