Use of Federal Employees for Olympic Security

• Court: Department of Justice Office of Legal Counsel
• Decided: May 17, 1996
• Status: Published

Opinion

Use of Federal Employees for Olympic Security W here the team s and delegations visiting the United States for the Olympic Games in Atlanta have been designated “ official guests” o f the United States by the Secretary of State pursuant to §§112, 1116 and 1201 o f the Criminal Code, those provisions authorize federal agencies to provide their em ployees to assist in security operations at the Atlanta Olympics upon request of the Attorney General.

May 17, 1996

M e m o r a n d u m O p in io n fo r t h e D epu ty A tto rn ey G eneral

This responds to your request for our opinion whether the provisions of §§ 112(f), 1116(d), and 1201(f) of the Criminal Code, 18 U.S.C. §§ 112(f), 1116(d), and 1201(f), authorize federal agencies, upon request of the Attorney General, to provide their employees to assist in security operations at the Atlanta Olympics. Under the circumstances presented, we conclude that they do.

I.

The City of Atlanta, Georgia, will host the 1996 Summer Olympics. The orga­ nizing entity for the Atlanta Games is the Atlanta Committee for the Olympic Games (“ ACOG” ), which will be working in close concert with the City of At­ lanta in managing and facilitating the Summer Games. In light of the international attention focused on the games, the large number of athletes, spectators, and others who will be present at the games, and the tragic events of the Munich Olympics, federal and state authorities have focused on the importance and challenge of maintaining appropriate security. Among other significant measures, we understand that, at ACOG’s request, the Administration plans to provide approximately 1,000 federal employees to assist with security, principally the operation of metal and weapons detectors at various Olympic security checkpoints. To the extent permissible, eligible employees will be drawn from department and agency offices in the Atlanta area, including the Departments of Agriculture, Commerce, Education, Energy, Health and Human Services, Labor, Transportation, and Treasury; the General Services Administra­ tion; the Small Business Adminstration; the Social Security Administration; and the Office of Personnel Management. For purposes of this memorandum, we assume that the Secretary of State will, in keeping with past practice, designate the Olympic delegations from the partici­ pating nations as “ official guests” of the United States pursuant to §§112, 1116, and 1201 of the Criminal Code. See 18 U.S.C. §§112, 1116, and 1201; 22 C.F.R. §§2.2-2.5 (1996). Such designations would place these delegations under the cov­ erage of special federal laws protecting foreign officials and “ official guests” of the United States from murder, kidnapping, and assault. “ In the course of en­

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forcement” of these provisions, moreover, the Attorney General is authorized to “ request assistance from any Federal, State, or local agency.” E.g., 18 U.S.C. § 1116(d). We consider below whether, under these provisions, the Attorney General may seek, and whether federal agencies may provide, the 1,000 employees needed to assist with security at the Atlanta Olympics. For reasons discussed below, we conclude that they may do so. For purposes of this memorandum, we assume that federal agencies providing such requested assistance to the Attorney General would do so on a non-reimbursable basis. We suggest, however, that the Attorney General enter into a Memorandum of Understanding with each federal agency providing such assistance, recording the authority, scope, funding, and supervisory arrangements for the activities to be undertaken by such agency.

II.

In 1972, Congress enacted the Act for the Protection of Foreign Officials and Official Guests of the United States, Pub. L. No. 92-539, 86 Stat. 1070 (1972) (“ Official Guests Act” or “ OGA” ), which established three federal crimes of violence against official guests of the United States: 18 U.S.C. § 1116 covers mur­ der, manslaughter, and attempted murder; 18 U.S.C. §1201 covers kidnapping, abduction, and similar offenses; and 18 U.S.C. § 112 covers various forms of as­ sault and the offering of violence. An “ official guest” is defined as “ a citizen or national of a foreign country present in the United States as an official guest of the Government of the United States pursuant to designation as such by the Secretary of State.” Id. § 1116(b)(6). Four years later, Congress enacted the Act for the Prevention and Punishment of Crimes Against Internationally Protected Persons, Pub. L. No. 94—467, 90 Stat. 1997 (1976) (“ IPPA” or “ 1976 Act” ), which amended the above-described pro­ visions. The IPPA was enacted, in turn, to implement two international conven­ tions to which the United States was a signatory: the Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion That Are of International Significance, Feb. 2, 1971, 27 U.S.T. 3949, T.I.A.S. No. 8413 (“ OAS Convention” ); and the Convention on the Preven­ tion and Punishment of Crimes Against Internationally Protected Persons, Includ­ ing Diplomatic Agents, Dec. 28, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532 (“ UN Convention” ). In addition, the IPPA amended §§ 112, 1116, and 1201 to authorize the Attorney General to obtain the assistance of federal agencies and state and local governments in the enforcement of these criminal statutes. Section 2 of the IPPA, now codified at 18 U.S.C. §§ 112(f), 1116(d), and 1201(f), provides (emphasis added):

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In the course of enforcement of [sections 112, 1116, and 1201 of the Criminal Code] and any other sections prohibiting a conspiracy or attempt to violate [those sections], the Attorney General m ay request assistance from a n y Federal, State or local agency, includ­ ing the Army, N avy, and A ir Force, any statute, rule, or regulation to the contrary notwithstanding.

In our view, this provision authorizes federal agencies to assist the Attorney Gen­ eral in responding to criminal offenses covered by the referenced statutes. Indeed, this Office has previously opined that the provision authorizes federal agencies (including the Armed Services) to respond to “ terrorist activity, including hostage- taking, directed at . . . visiting Olympic athletes while they are in the United States.” Memorandum for Paul R. Michel, Acting Deputy Attorney General, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, Re: P ossible Use o f A rm ed Forces in the Event o f Terrorist Activity a t the Lake P lacid O lym pics at 1 (Feb. 5,1980).1 The further question presented here is whether the IPPA authorizes the Attorney General to request assistance from federal agencies where no violation of the gov­ erning criminal statutes has yet occurred, but under circumstances in which there exists cause to believe that, without appropriate security, “ official guests” of the United States might be at risk. That question primarily turns on the meaning of the phrase, “ [i]n the course of enforcement” of §§112, 1116, and 1201 of the Criminal Code. The starting point in interpreting this provision is, of course, the plain language of the statute. See Ardestani v. INS, 502 U.S. 129, 135 (1991). As this Office has previously noted, “ [t]he concept of ‘enforcement’ is a broad one, and a given statute may be ‘enforced’ by means other than criminal prosecutions brought di­ rectly under it.” See Adm issibility o f Alien Amnesty Application Information in Prosecutions o f Third Parties, 17 Op. O.L.C. 172, 177 (1993). There, we further noted that, in the context of the statute at issue, the statutory authority to enforce a criminal provision included both “ the prevention and punishment” of the under­ lying criminal conduct.2 Id. We have also opined that a statute declaring it “ un­ lawful . . . for any alien to depart from the United States except under” rules prescribed by the President provides the Attorney General with authority to “ pre­ vent” such departures by, for example, keeping individuals under surveillance and screening their contacts with others who might seek to coerce them to depart 1 As noted in the 1980 opinion, the Secretary o f State had designated the visiting Olympic athletes as “ official guests o f the U nited States” pursuant to the O G A . This opinion is based upon an assumption that the 1996 Olympic delegations will also be so designated. 2This broad understanding o f the word “ en fo rce” is reflected in dictionary definitions o f the term as well. See, e.g.. The American Heritage Dictionary o f the English Language 433 (1st ed. 1976) (defining “ enforce” to mean “ 1. To compel observance o f o r obedience to: enforce a regulation.” ); Black's Law Dictionary 528 (6th ed. 1991) (defining “ enforcem ent” to mean “ The act o f putting something such as a law into effect; the execution o f a law; the carrying out o f a mandate o r command.” ).

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in violation of the law. See Department o f Justice Authority to Provide ‘ ‘Protective Custody” fo r Defectors, 4B Op. O.L.C. 348, 353 (1980). In reaching this conclu­ sion, moreover, we stressed that “ law enforcement authorities customarily have great discretion to decide how to enforce the law.” 3 Id. A construction of the word ‘‘enforcement’’ that is broad enough to include pre­ ventive measures is also consistent with a variety of other federal statutes that define the phrase “ law enforcement officer” to include those engaged in not only the apprehension and prosecution of those who have violated the law, but also “ the prevention” of criminal violations.4 Similarly, another federal statute defines “ enforcement of the criminal laws” to include, among other things, “ efforts to prevent, control, or reduce crim e.” 5 U.S.C. §552a(j)(2) (emphasis added). When the phrase “ in the course of enforcement” is placed in its statutory con­ text, we are left with little doubt that it is properly read to include preventive, as well as responsive, crime control efforts. Significantly, the two acts at issue here are entitled the “ Act for the Protection of Foreign Officials and Official Guests of the United States,” 86 Stat. at 1070 (emphasis added), and the “ Act for the Prevention and Punishment of Crimes Against Internationally Protected Persons,” 90 Stat. at 1997, Preamble (emphasis added). In explicitly declaring their protective and preventive purposes, the titles of these statutes provide addi­ tional support for a broad interpretation of the term “ enforcement” as used in IPPA’s assistance provisions.5 The 1976 Act, moreover, was expressly enacted “ to implement the ‘Convention to Prevent and Punish the Acts of Terrorism Tak­ ing the Form of Crimes against Persons and Related Extortion That Are of Inter­ national Significance’ and the ‘Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents.’ ” Id. (emphasis added). See also CISPES v. FBI, 770 F.2d 468, 472 (5th Cir. 1985).

3 See also Memorandum for W ayne B. Colburn, Director, United States Marshals Service, from Leon Ulman, Deputy Assistant A ttorney General, Office o f Legal Counsel, Re: Law Enforcement Authority o f Special Deputies Assigned to DOT to Guard Against Air Piracy (Sept. 30, 1970). Relying on the Supreme C ourt’s opinions in In Re Neagle , 135 U.S. 1 (1890) and In Re Debs, 158 U.S. 564 (1895), we there concluded: “ It is our view that since the United States has jurisdiction to punish air piracy and related offenses, it likewise has inherent authority to take reasonable and necessary steps to prevent these offenses." Id. at 2. 4See, e.g. (emphasis added throughout), 18 U.S.C. § 115(c)(1) (‘“ Federal law enforcement officer* means any officer, agent, or employee o f the United States authorized by law or by a Government agency to engage in or supervise the prevention , detection, investigation, o r prosecution o f any violation o f Federal criminal law "); 18 U.S.C. §3592(c)(14) (“ For purposes o f this subparagraph, a Maw enforcement officer’ is a public servant authorized by law or by a G overnment agency o r Congress to conduct o r engage in the prevention , investigation, or prosecution or adjudication o f an offense” ); 18 U.S.C. §3673 ( “ the tenn ‘law enforcement officer’ means a public servant authorized by law or by a government agency to engage in or supervise the prevention, detection, investigation, or prosecution o f an offense” ); 42 U.S.C. §3796dd—8 ( ‘“ career law enforcement officer' means a person hired on a permanent basis who is authorized by law o r by a State o r local public agency to engage in or supervise the prevention, detection, or investigation o f violations o f the criminal law s” ). 3 It is well-recognized that the title o f a statute can provide useful evidence o f legislative intent in interpreting the statute. See INS v. National Ctr. for Immigration Rights, Inc., 502 U.S. 183, 189 (1991); 2A Norman J. Singer, Sutherland Statutory Construction §47.03 (5th ed. 1992) (“ Since the title o f an act is essentially a part o f the act and is itself a legislative expression o f the general scope o f the bill, it is proper to consider it in arriving at the intent o f the legislature.” ).

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Those international conventions, moreover, clearly impose an obligation on sig­ natory states not simply to punish those who commit acts of violence against protected persons, but also to prevent such violence from occurring in the first place. Article 4 of the UN Convention, for example, provides in relevant part:

States Parties shall co-operate in the prevention of the crimes set forth in article 2 [i.e., those crimes covered by the statutes in issue here], particularly by:

(a) taking a ll practicable measures to prevent preparations in their respective territories f o r the commission o f those crimes with­ in o r outside their territories',

(b) exchanging information and co-ordinating the taking of ad­ ministrative and other measures as appropriate to prevent the com­ mission of those crimes.

28 U.S.T. at 1979 (emphasis added). The OAS Convention makes similar provi­ sion.6 The language and statutory context of the IPPA thus provide persuasive support for the view that its provisions should be understood to authorize the Attorney General to take “ practicable measures” to prevent the commission of violent crimes against “ official guests” of the United States.7

III.

A.

The legislative history of the OGA and IPPA further confirms our view that the Attorney General may request assistance from any federal agency in both pre­ venting and punishing acts of violence against Olympic delegations visiting the United States. As originally drafted, the OGA covered only “ foreign officials.” 6 A rticle 1 o f the OAS Convention provides: The contracting states undertake to cooperate among themselves by taking all measures that they may consider effective, under their own laws, and especially those established in this convention, to prevent and punish acts o f terrorism, especially kidnapping, murder, and other assaults against the life or physical integrity o f those persons to whom the state has the duty according to international law to give special protection, as well as extortion in connection with those crimes. 27 U .S.T. at 3958 (emphasis added). 7 It m ight be argued that the broad preventive obligations o f the two conventions do not necessarily apply to the “ official guests” covered by the implementing criminal statutes because official guests are protected under those statutes but not under the conventions themselves. Such an argum ent fails because Congress explicitly intended for designated “ official guests” to receive the same protections extended to persons protected under the conventions. See S. Rep. No. 92 -1 1 0 5 , at 7, 9, 15 (1972), reprinted in 1972 U.S.C.C.A.N. 4316, 4318, 4324-25 ( “ 1972 Senate R eport” ); H.R. Rep. No. 94-1614, at 5 -6 (1976), reprinted in 1976 U.S.C.C.A.N 4480, 4483-84 (“ 1976 House R eport” ).

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A series of amendments introduced in the Senate Judiciary Committee, however, expanded the Act to encompass crimes against “ official guests” of the United States. The legislative history of these amendments makes clear that they were intended to help “ protect” members of an “ Olympic contingent” visiting the United States.8 The Senate Report on the 1972 legislation, for example, contained the following description of the Judiciary Committee amendments that extended the Act’s protection to “ official guests” :

The first series of committee amendments extend this umbrella of Federal protection to other “ official guests” of the United States as designated by the Secretary of State so as to authorize expanded protective, investigative and other law enforcement services for the benefit of private citizens visiting our country pursuant to official recognition by the United States.

1972 Senate Report at 7, reprinted in 1972 U.S.C.C.A.N. at 4316 (emphasis added). The Report went on to detail the remarks of Senator McClellan in introducing the amendment that extended the Act’s coverage of official guests. Id. at 9, re­ printed in 1972 U.S.C.C.A.N. at 4318-19. As Senator McClellan explained:

The bill under consideration recognizes that the United States as a host country has particular responsibility to protect the person and p roperty o f “foreign officials” , including ambassadors, agents, employees and their fam ilies while such persons are present within our territorial confines. However, the measure would not offer any expanded protection for foreign citizens, who might visit our shores as official guests of our country as members of an Olympic contin­ gent.

The amendment I propose will extend the umbrella o f Federal p ro ­ tection to cover “ official guests” o f the United States as designated by the Secretary o f State so as to include visiting athletes in inter­ national competition.

Id. (emphasis added).

8 The Act was amended to include “ official guests” in response to the kidnapping and murder o f Israeli athletes at the Munich Olympic games. 1972 Senate Report at 9, reprinted in 1972 U.S.C.C.A.N. at 4318-19. In light o f the protective purpose repeatedly stressed in the legislative history, it is unlikely that Congress intended only to provide federal law enforcement with authority to respond to such an attack after the fact, but not to take steps, such as screening for weapons, to prevent an attack in the first place.

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B.

Section 2 of the IPPA added the provision authorizing the Attorney General to request the assistance of federal agencies and state governments “ in the course of enforcement” of the substantive provisions of the act. The House and Senate Reports provide only terse explanation of this provision, stating that “ [t]he legisla­ tion amends section 1116 [the murder and manslaughter provision] of title 18, United States Code, to authorize the Attorney General to request assistance from any federal, state or local agency in the course of enforcing the provisions of section 1116.” 1976 House Report at 5, reprinted in 1976 U.S.C.C.A.N. at 4483 (footnote omitted). A footnote appended to the foregoing sentence, however, ex­ plains: “ There may be circumstances — such as the takeover of an embassy— when the Justice Department will need assistance from other federal, State or local agencies.” Id. at n.7, reprinted in 1976 U.S.C.C.A.N. at 4483. This sentence provides further evidence that Congress intended the Attorney General to obtain assistance for preventive, as well as prosecutorial, enforcement of the covered statutes. Significantly, it cites the takeover of an embassy as a situation in which assistance may be provided in the enforcement of § 1116— which prohibits mur­ d e r and m anslaughter of the protected persons. The takeover of an embassy, how­ ever, does not necessarily involve the commission of murder or manslaugter of a protected person; rather, it presents a situation where enhanced resources are necessary to p reven t the commission of such crimes. In addition to the foregoing, President Ford’s statement on signing the IPPA stressed that “ [preven tin g or punishing” acts of international terrorism “ is a prime concern of this Government.” 3 Pub. Papers of Gerald Ford 2479 (1976). The President further stated:

The Act for the Prevention and Punishment of Crimes Against Internationally Protected Persons (H.R. 15552) will serve as a sig­ nificant law enforcement tool for us to deal more effectively with the menace of terrorism, and it will assist us in discharging our important responsibilities under the two international conventions which I am today authorizing for ratification.

Id. at 2480. As shown above, the prevention of crimes against protected persons is among the United States’ “ responsibilities” under the conventions, and there­ fore under the Act as well.

IV.

In a 1980 Opinion, this Office concluded that the IPPA does not authorize the Attorney General to obtain the assistance of the Armed Forces “ to protect foreign

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dignitaries . . . present in New York for [an] opening session of the United Na­ tions.” See Memorandum for Paul R. Michel, Associate Deputy Attorney General, from Larry L. Simms, Deputy Assistant Attorney General, Re: Request fo r A ssist­ ance to Protect Foreign D ignitaries (Sept. 11, 1980). The 1980 opinion expressed the view that the Act was adopted to discharge our obligation under the two inter­ national conventions discussed above, but read those conventions to require only that signatories either extradite or prosecute those found within their territory who have committed an offense against an internationally protected person. The opin­ ion, accordingly, concluded that the IPPA does not authorize the Attorney General to request assistance from the Armed Forces or any other agency “ to provide protective custody or other routine assistance to foreign officials in the absence of an imminent or actual criminal offense.” Id. at 2. Finally, the opinion conceded that “ enforcement and protection responsibilities” will at times overlap, but con­ cluded that, absent an “ actual threat or imminent harm,” these responsibilities are distinguishable and that it is not appropriate to use the Act to provide purely “ protective service.” Id. at 3. For the reasons discussed above, we do not read the IPPA or the international conventions that it implemented as narrowly as did the 1980 opinion. To the con­ trary, it appears that the conventions and the IPPA were intended not simply to provide the Attorney General with the power to prosecute crimes of violence com­ mitted against “ official guests” of the United States, but also to take “ practicable measures to prevent preparation! ]” for such violent acts. See, e.g., Article 4, Con­ vention on the Prevention and Punishment of Crimes Against Internationally Pro­ tected Persons, 28 U.S.T. at 1979. In our view, the operation of metal and weapons detectors at the Olympic games constitutes a good example of the type of reason­ able steps that might be taken to prevent the ultimate preparation for the commis­ sion of a violation of §§ 112, 1116, and 1201 of the Criminal Code. To the extent the 1980 opinion is inconsistent with this view, that opinion is hereby superseded. Finally, we note that even the 1980 opinion seems to recognize that the Attorney General may request the assistance of federal agencies under the IPPA in respond­ ing to an actual threat. We understand that some generalized threats of violence have been directed at the Atlanta Olympics. The Attorney General has “ great discretion to decide how to enforce the law,” 4B Op. O.L.C. at 353, and is, in our view, best suited to determine the appropriate response to these threats. Indeed, even without an express and tangible threat, the Attorney General might reason­ ably conclude that history (e.g., the tragic precedent of Olympic terrorism created at the Munich Olympic Games of 1972), world events, and other pertinent back­ ground information give rise to a “ threat” of violence at the Olympic Games. Thus, even under the more restrictive view of the IPPA articulated in the 1980

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opinion, we believe that the Attorney General has authority to request the assist­ ance of other federal agencies under the circumstances described above.

WALTER DELLINGER A ssistant Attorney General Office o f Legal Counsel