Presidential Power Concerning Diplomatic Agents and Staff

of the Iranian Mission

W hile th ere is au th o rity for im posing som e travel restrictions on Iranian diplom atic 

personnel und er the V ienna C o n v en tio n on D iplom atic R elations and cu stom ary international law , as w ell as und er dom estic law, those sources o f law generally state that 

d iplom ats m ay not be placed in circum stances tantam ount to house arrest, o r barred 

from leaving the co u n try , even as an act o f reprisal for breaches o f diplom atic im m unity by Iran.

S ubjecting Iranian diplom atic personnel to prosecution u nder the crim inal provisions o f 

the In ternational E m erg en cy E conom ic P ow ers A ct, even if do n e in reprisal for 

Iranian b reaches o f international law and accom panied by all applicable p rotections 

afforded by the U nited States C onstitution, w ould raise serious questions under international law.

January 8, 1980

MEMORANDUM OPINION FOR TH E ATTORNEY GENERAL

On November 14, 1979, you asked this Office to review certain 

questions relating to the situation in Iran, and during the last few weeks 

we have provided you our views on a number of these questions orally. 

In this memorandum we summarize the central legal issues involved in 

taking actions against Iranian diplomatic personnel in this country, and 

set forth our reasoning and conclusions. We address, principally, the 

following questions:

1) May the President restrict the movement of Iranian diplomatic 

agents and staff personnel within the United States, including, if 

necessary, confinement to embassy grounds;

2) May he prevent these persons from departing the country;

3) May he subject these persons to prosecution for violations of the 

International Emergency Economic Powers Act, 50 U.S.C. 

§ 1705?

We conclude that although the President may possess constitutional 

and statutory power to take any or all of these actions, each of them 

raises serious international law questions.

I. Restricting the Movement of Members of the Iranian Mission

A. International Law

The rights of diplomatic personnel are governed by the Vienna 

Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227,

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T.I.A.S. No. 7502, ratified by Iran, the United States, and all major 

countries of the world. Any doubts that may have existed concerning 

whether the Treaty automatically became part of our domestic law 

upon its ratification have been removed by the recent passage of the 

Diplomatic Relations Act, 22 U.S.C. §§ 254a-256, a major purpose of 

which was to codify the Convention’s immunity provisions as part of 

our law. See generally S. Rep. No. 958, 95th Cong., 2d Sess. (1978).

As an introductory matter, the Convention and the Act establish 

categories of diplomatic personnel, and grant them varying degrees of 

immunity. Under Articles 1, 31, and 37 of the Convention and 22 

U.S.C. §§254a and 254d, diplomatic agents and their families enjoy 

complete criminal immunity and nearly complete civil immunity. Members of the administrative and technical staff and their families enjoy 

complete criminal immunity and civil immunity for acts in the course of 

their duties. Service staff of the mission enjoy immunity for acts performed in the course of their duties. The Act implements these immunities by providing that actions brought against individuals who are 

entitled to immunity in respect to them under the Convention or the 

Act shall be dismissed (§ 254d).

The Convention has a number of substantive provisions that are 

relevant here. First, Article 22 provides unconditionally that the premises of the mission shall be inviolable, and places a special duty on the 

receiving state to protect the premises against intrusion and to refrain 

from searching it. Iran is clearly in massive breach of this Article.1

Article 26 requires the receiving state to guarantee members of the 

mission 2 freedom of movement in the country, subject to regulations 

establishing national security zones. This Article was adopted against a 

background of longstanding travel restrictions imposed by nations on a 

reciprocal basis. (For example, after World War II the Soviet Union 

limited travel by members of diplomatic missions in Moscow to 50 

kilometers from the capital, absent special permission. The United 

States and others retaliated by imposing reciprocal restrictions on the 

Soviet Union and other offending nations.) An amendment to the Article that would have stated that prohibited zones must not be so extensive as to render freedom of movement illusory failed of passage. This 

does not constitute an affirmative endorsement of highly restrictive 

travel zones, however, since a statement to the same effect as the failed 

amendment was already in the commentary to the Article. At any rate, 

travel restrictions have continued on a more or less restrictive basis 

since adoption of the Convention. See generally E. Denza, Diplomatic

'T h e United Slates could confine members of the Iranian Mission to the premises without violating 

this Article, although such an action could violate Article 29’s prohibition o f arrest.

2Under 22 U.S.C. §254a, the term “members o f a mission" includes diplom atic agents, adm inistrative and technical staff, and service staff, as defined in Article 1 o f the Convention.

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Law, Commentary on the Vienna Convention on Diplomatic Relations, 

115-18 (1976).

Our own legislative history of the Convention suggests that “protective custody” of diplomatic personnel could be justified under Articles 

26 and 29. The State Department’s Legal Adviser testified before the 

Senate Foreign Relations Committee that these provisions could be 

used in situations involving armed conflict to justify placing diplomats 

in protective custody. He pointed out that while Article 29 prohibits 

arrest, it also provides that the receiving state shall take appropriate 

steps to prevent attacks on a diplomat’s person. 7 M. Whiteman, Digest 

of Int’l Law 442 (1970).

This argument, however, is subject to two rejoinders. First, reconciling Article 26, allowing travel restrictions, with Article 29, forbidding 

arrest, requires a legal and practical distinction at some point between 

travel restrictions and arrest. The practice of travel restrictions against 

which the Convention was drafted had never reached the level of 

house arrest. Second, in the Convention the United States opposed a 

provision now found in Article 39.2, stating that immunities such as 

those against arrest continue even in case of war. We argued that it was 

necessary to intern enemy diplomats at the outbreak of war, citing the 

World War II experience. We proposed an amendment that failed, 

which would have allowed the receiving state in time of national 

emergency, civil strife, or armed conflict to institute appropriate measures of control of mission personnel and their property, including protective custody to insure their safety. See 7 M. Whiteman, supra, at 441. 

The history of the failed American amendment is ambiguous enough 

that it does not necessarily preclude limited imposition of protective 

custody relying directly on the duty in Article 29 to “take all appropriate steps to prevent any attack on” a diplomat’s person, but a protective 

custody theory would be very hard to reconcile with an accompanying 

ban on departure from the country. Indeed, Article 44 provides that 

even in case of armed conflict, the receiving state must allow mission 

personnel an opportunity to leave the country at the earliest possible 

moment. In short, house arrest of mission personnel accompanied by a 

ban on their return to Iran cannot fairly be argued to be within the 

substantive terms of the Convention.

Article 47 of the Convention provides that a state may discriminate 

against another state by applying any of the provisions of the Convention restrictively “because of a restrictive application of that provision 

to its Mission in the sending state.” The background to this provision 

indicates that it authorizes reciprocally unfavorable treatment only to 

an extent that is not clearly contrary to the terms of the Convention. 

Denza, supra, at 283-84. This means that relatively restrictive travel 

zones imposed by another country would allow us to impose restrictive

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travel zones on a reciprocal basis, but would not justify our breach of 

the Convention, for example by invading their mission.

The Convention’s preamble affirms “that the rules of customary 

international law should continue to govern questions not expressly 

regulated” by its provisions. Customary international law allows reprisals, which are breaches of a treaty’s terms in response to a breach by 

another party. To be legal, reprisals must respond in a proportionate 

manner to a preceding illegal act by the party against whom they are 

taken. See G. Schwarzenberger, A Manual of International Law 184 

(5th ed. 1967).3 Identical reprisals are the easiest to justify as proportionate, because subjective comparisons are not involved. Thus, in the 

current crisis, the taking of Iranian diplomats as “hostages” (or a lesser 

restriction on their freedom of movement that approaches imprisonment) would clearly be a proportionate response; reducing the immunity of Iranian diplomats from criminal prosecution would be more 

difficult to justify.

At this point a special difficulty arises. International law scholars 

have identified an exception to the law of reprisals: “diplomatic envoys 

may not be made the object of reprisals, although this has occasionally 

been done in practice.” H. Lauterpacht, 2 Oppenheim’s International 

Law 140 (7th ed. 1952), citing Grotius. Customary international law 

often has no firmer basis than the opinions of the scholars, bolstered by 

their own reputations and the precedent they can summon. This exception to the reprisals doctrine can claim the support of some highly 

reputable scholars.

It is unclear whether this exception is meant to refer only to the 

illegality of taking reprisals against diplomats in response to unrelated 

breaches by the sending state (e.g., a blockade), or whether it is meant 

to extend to a ban on reprisals against diplomats even when the sending 

state commits a breach of diplomatic immunity. The former interpretation has the evident merit of preventing routine harassment of diplomats, and would leave a role for reprisals in such extreme circumstances as the present Iranian actions.

Nevertheless, the exception is stated in terms suggesting that reprisals 

against diplomats are never legal. As a result, if the United States were 

to take action amounting to a breach of the Vienna Convention, such as 

arresting Iranian diplomats or barring their departure from the country, 

a reputable argument could be made that our action was illegal, despite 

major previous breaches by the other side. Here it can be argued that 

Article 47 of the Vienna Convention means to forbid full-scale reprisals 

against diplomats, no matter the provocation. It would be pointed out

3 This principle is also codified in the Vienna Convention on the Law o f Treaties, A rticle 60, Senate 

Exec. L., 92d Cong., 1st Sess. (1971), w hich allows suspending the operation o f a treaty in w hole or in 

part upon the material breach of another party, but w hich is not yet in force and has not been ratified 

by the United Stales.

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that economic reprisals (blocking assets, boycotts, or even blockade) 

stand as substitute remedies.

There may be added support for the view that reprisals against 

diplomats are never legal in the World Court’s recent order granting an 

“indication of Provisional Measures” in United States o f America v. 

Iran. For the Court ordered release of the hostages, including diplomatic personnel, despite Iran’s argument that the hostage-taking should 

be viewed as “secondary” to “25 years of continual interference by the 

United States in the internal affairs of Iran, . . . and numerous crimes 

perpetrated against the Iranian people, contrary to . . . all international and humanitarian norms.” The seriousness of these allegations did 

not convince the Court that imprisoning diplomats was a fit reprisal. 

Still, the Iranian action was not presented as a reprisal for breaches of 

diplomatic immunity, and the Court did not speak to that issue. It 

ordered release “in accordance with the treaties in force between the 

two States, and with general international law.”

In any event, it is our judgment that international law casts considerable doubt on the legality of any reprisal against diplomats.

B. Domestic Law Implementing International Law

It seems clear that the Vienna Convention and surrounding principles 

of customary international law have been incorporated as part of our 

domestic law. First, Article VI of the Constitution makes treaties part 

of the supreme law of the land, along with the Constitution and statutes. The Vienna Convention, ratified by the United States, includes an 

affirmation in its preamble that rules of customary law should govern 

questions not expressly regulated by the terms of the Convention.

Moreover, the Supreme Court has recognized customary international law as part of our domestic law. See L. Henkin, Foreign Affairs 

and the Constitution 221 (1972). In The Paquete Habana, 175 U.S. 677, 

700 (1900), the Supreme Court held that under international law, fishing 

vessels belonging to enemy nationals were exempt from capture and 

condemnation by American vessels:

International law is part of our law, and it must be 

ascertained and administered by the courts of justice of 

appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.

A principal purpose of the Diplomatic Relations Act of 1978, 22 

U.S.C. § 254a et seq., was to “codify the privileges and immunities 

provisions of the Vienna Convention as the sole United States law on 

the subject,” S. Rep. No. 958, supra, at 1, and to repeal inconsistent 

statutes. The Act also provides, in § 254c:

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The President may, on the basis of reciprocity and under 

such terms and conditions as he may determine, specify 

privileges and immunities for members of the mission, 

their families, and the diplomatic couriers of any sending 

state which result in more favorable treatment or less 

favorable treatment than is provided under the Vienna 

Convention.

The Report of the Senate Foreign Relations Committee, No. 958, supra,

at 5, explains that this provision “reflects article 47 of the Convention 

which allows such treatment.” The Report goes on:

The conditions under which U.S. diplomatic personnel 

carry out their official functions and lead their lives in 

certain hardship areas dictate their enjoyment of increased 

protection from harassment as a result of arbitrary application of local law. This provision permits less favorable 

treatment than the Vienna Convention and covers those 

cases where certain nations restrict the privileges and 

immunities of U.S. diplomatic personnel abroad. Any use 

of the discretion described in this section must be on a 

reciprocal basis with the nations involved.

It is unclear whether this section means to go further than to codify 

Article 47 of the Convention, which allows only restrictive applications 

of the Convention’s terms. It can be read to provide domestic authority 

to exercise the international law of reprisals, which would, however, 

presumably include the exception for reprisals against diplomats. The 

legislative history is barren of guidance except for the discussion quoted 

above, which refers to Article 47 and which seems to contemplate 

reciprocally restrictive travel provisions.

There is explicit authority for travel regulations in the Foreign Relations Authorization Act of 1979; Pub. L. No. 95-426, 22 U.S.C. §2691 

note:

For the purpose of implementing general principles of the 

Final Act of the Conference on Security and Cooperation 

in Europe (signed at Helsinki on August 1, 1975) emphasizing the lowering of international barriers to the free 

movement of people and ideas and in accordance with 

provisions of the Vienna Convention on Diplomatic Relations establishing the legal principles of nondiscrimination 

and reciprocity, it shall be the general policy of the 

United States to impose restrictions on travel within the 

United States by citizens of another country only when 

the government of that country imposes restrictions on 

travel by United States citizens within that country.

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The legislative history of this provision refers to it as “selfexplanatory,” and is otherwise unilluminating. H.R. Rep. No. 1160, 95th 

Cong., 2d Sess. (1978).

Thus there is ample international and domestic authority for travel 

restrictions on Iranian diplomatic personnel. But the line must be drawn 

at that point—anything amounting in substance to holding them hostage 

would entail a possible breach of international law. Instead, the traditional remedy against diplomats has been to declare them persona non

grata and to expel them, even in cases of espionage.4 There is even a 

possibility that internment of Iranian diplomatic personnel would run 

afoul of 18 U.S.C. § 112, which makes it a federal crime to assault or 

imprison a foreign diplomat. This provision, passed in response to 

terrorism at the Munich Olympics and elsewhere, focuses on ordinary 

criminal activity, but it is not in terms inapplicable to governmental 

abuse of diplomatic privileges and immunities.

C. Presidential Power Over Diplomatic Personnel

The President’s authority over foreign diplomatic personnel derives 

from his constitutional power in Article II to “receive Ambassadors 

and other Public Ministers.” From this derives the President’s power to 

grant or withdraw recognition to foreign governments and their ministers, a power regarded as textually committed to the Executive alone. 

See Jones v. United States, 137 U.S. 202, 212 (1890); Baker v. Carr, 369 

U.S. 186, 212-13 (1962); see generally 2 B. Schwartz, The Powers of the 

President 104-09 (1963). The President’s well-established power to recognize foreign governments without the participation of the other 

branches is a greater power than that involved in receiving a particular 

Ambassador of a recognized government, although it may flow logically enough from that power. As a consequence, the President’s power 

to accept or reject a particular envoy has been beyond serious question 

since President Washington demanded the recall of Citizen Genet, the 

French Minister. As early as 1855, the Attorney General gave an 

opinion that the right of reception extends to “all possible diplomatic 

agents which any foreign power may accredit to the United States,” 7 

Op. A tt’y Gen. 186, 209 (1855).

The legal status of foreign diplomatic personnel in the United States 

has its roots in these constitutional considerations and was well-defined 

long before the Vienna Convention codified it. In effect, persons with 

full diplomatic status bear the same relation to the United States as the 

government they serve; they are not subject to domestic law, and our 

rights and remedies with respect to them are diplomatic only. See

4This is not the case for individuals with only a qualified immunity from criminal jurisdiction. The 

United States does not recognize violation of the espionage laws as part o f a foreign employee's 

official function, and the limited immunity is no bar to prosecution for such violations. See United

States v. Egorov, 222 F. Supp. 106, 107-08 (E.D .N.Y . 1963); Untied States v. Melekh, 190 F. Supp. 67, 

87-89 (S.D. N.Y. 1960).

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Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 138-39 (1812) 

(Marshall, Ch. J.), for a classic statement of this. The first American 

statutes granting immunity from our domestic law to diplomatic personnel date from 1790, and since the Citizen Genet affair, Presidents have 

declared foreign diplomatic personnel persona non grata, expelling them 

without explanation or process. Neither expulsion without procedural 

protections nor travel restrictions of the sort familiar both before and 

after ratification of the Vienna Convention would be tolerable for 

American citizens or nondiplomatic aliens. Professor Henkin concludes 

that “foreign governments, however, and probably foreign diplomats in 

their official capacity, have no constitutional rights, and there are no 

constitutional obstacles, say, to tapping wires of foreign embassies.” 

Henkin, supra, at 254. (Professor Henkin’s example regarding wiretapping presages a position taken by the Office of Legal Counsel in 

response to a request of the Permanent Select Committee on Intelligence in April, 1978.)

At the same time, aliens within our international jurisdiction are 

subject to our laws and are entitled to claim constitutional protections 

when the government has not granted them immunity. See Mathews v. 

Diaz, 426 U.S. 67, 77 (1976); Wong Wing v. United States, 163 U.S. 228, 

237-38 (1896).

A consistent pattern emerges from these authorities. Diplomatic personnel, standing as surrogates for the nation they represent, are without 

the constraints of our domestic law and its protections as well. For 

example, no one would suggest that a diplomat has a First Amendment 

right to disparage the President without suffering expulsion as a consequence. But to the extent that immunity does not hold, with the exposure to our domestic law comes equally an opportunity to take advantage of its protections. Thus, no one would suggest that an alien may be 

tried for espionage without the observance of due process guarantees. 

See Abel v. United States, 362 U.S. 217 (1960).

In addition to these constitutional sources, the President can draw 

authority over diplomats from the provisions of the Diplomatic Relations Act and the Foreign Relations Authorization Act that are summarized above. Finally, there is a little-known 1868 statute, now 22 U.S.C. 

§ 1732:

Whenever it is made known to the President that any 

citizen of the United States has been unjustly deprived of 

his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to 

demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of 

the rights of American citizenship . . . , the President 

shall use such means, not amounting to acts of war, as he 

may think necessary and proper to obtain or effectuate

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the release; and all the facts and proceedings relative 

thereto shall as soon as practicable be communicated by 

the President to Congress.

This provision appears never to have been invoked; at least it has 

never been relied on in litigation to support presidential action. It was 

passed in response to a dispute with Great Britain after the Civil War, 

in which that nation was trying its former subjects, who had become 

naturalized Americans, for treason. A rejected amendment to the bill 

would have authorized the President to suspend all commerce with the 

offending nation, and to round up foreign citizens found in this country 

as hostages; even this harsh provision, however, excepted diplomatic 

personnel. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445 (1868). Therefore, if this provision is to be relied on, it should be invoked for actions 

not involving diplomats.

In conclusion, the President has plenary powers to control the presence and movement in this country of foreign diplomatic personnel, 

short of violations of international law.

II. Departure Controls

The Immigration and Nationality Act, 8 U.S.C. § 1185(a), provides

Unless otherwise ordered by the President, it shall be 

unlawful—

(1) for any alien to depart from . . . the United States 

except under such reasonable rules, regulations, and 

orders, and subject to such limitations and exceptions as 

the President may prescribe. . . .

It is clear from the structure of the statute that the term “alien” as used 

in §1185 includes diplomatic personnel. The definitions section of the 

Act, § 1101(a), defines alien as any person not a citizen of the United 

States (3), and includes diplomatic personnel among nonimmigrant 

aliens (15). Section 1102 of the Act makes the provisions on exclusion 

or deportation inapplicable to diplomatic personnel, except as otherwise 

provided. There is no parallel section exempting diplomatic personnel 

from departure controls.

Regulations implementing § 1185 have been issued by the Department 

of State, but are implemented by the departure control officers of the 

Immigration and Naturalization Service (INS). 22 C.F.R. §46. The 

regulations provide in §46.2 that no alien (defined in the statute’s terms) 

shall depart, or attempt to depart, from the United States if his departure would be prejudicial to the interests of the United States under the 

provisions of §46.3. Departure control officers, having reason to believe that §46.3 applies, are instructed to serve the alien with a written 

temporary order directing him not to depart. In turn, §46.3 defines 

categories of aliens whose departure shall be deemed prejudicial to the

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interests of the United States, and includes: fugitives from justice; aliens 

needed as witnesses or parties to criminal cases under investigation or 

pending in our courts; aliens needed in connection with investigations 

or proceedings being conducted by any official executive, legislative, or 

judicial agency in the United States; and aliens who may disclose 

defense information, engage in activities impeding our national defense, 

wage war against the United States, or help to deprive the United 

States of sources of supplies or materials vital to our national defense. 

There is also a final catchall category (k) for any alien whose case does 

not fall within any of the specified categories, “but which involves 

circumstances of a similar character rendering the alien’s departure 

prejudicial to the interests of the United States.” Any of a number of 

these provisions would seem adaptable to the present situation.

Section 46.7 of the regulations provides that in the absence of appropriate instructions from the State Department’s Bureau of Security and 

Consular Affairs, departure control officers shall not exercise their 

authority to bar exit in the case of aliens seeking to depart in the status 

of diplomatic personnel (within a definition in § 1101(a)(15) that closely 

resembles those in the Diplomatic Relations Act). It goes on to provide, 

however, that in “cases of extreme urgency, where the national security 

so requires,” a departure control officer may preliminarily exercise 

authority to bar exit pending the outcome of consultation with the 

Administrator, “which shall be undertaken immediately. In all cases 

arising under this section, the decision of the Administrator shall be 

controlling: Provided, That any decision to prevent the departure of an 

alien shall be based upon a hearing and record as prescribed in this 

part.” The regulations provide that an alien served with a notice of 

temporary prevention of departure may within 15 days request a hearing before a Special Inquiry Officer of the INS. If a hearing is requested, the alien is entitled to appear, to be represented by counsel of 

his choice, and to have a trial-type hearing. The Special Inquiry Officer 

recommends disposition, and the record and any written appeals are 

transmitted to the Regional Commissioner, whose decision is administratively final.

III. Restricting Criminal Immunity of Diplomatic Personnel

Under the Vienna Convention, diplomatic agents and administrative 

and technical staff are entitled to complete immunity from the criminal 

jurisdiction of the host state. However, the exercise of criminal jurisdiction over foreign diplomatic personnel might, as a matter of international law, be justified as a reprisal for Iranian breaches of the Convention. As noted above, there is a substantial argument that all reprisals 

against diplomatic personnel are illegal.5 Moreover, reprisals become

5Support for such an argum ent in this application might be found in the W orld C ourt's order to 

Iran to afford our diplomats “immunity from any form o f criminal jurisdiction."

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more difficult to justify as they become less clearly reciprocal in terms 

of nature or severity to the breach that has occurred. See

Schwarzenberger, supra, at 184. Thus, house arrest of Iranian diplomats, because of its similarity to the imprisonment of our personnel, is 

easier to justify than criminal prosecution of a sort not yet imposed 

upon our hostages. There is also a serious danger that a reprisal of this 

sort might be thought to justify the exercise of Iranian criminal jurisdiction, in particular regarding espionage, over our personnel. Therefore, 

if any criminal jurisdiction is asserted over Iranian diplomatic personnel, it is particularly important to specify the aspects of the criminal 

law to which they are being subjected. This could be done by notification that violations of Executive Order No. 12,170 and the criminal 

provisions of the IEEPA, 50 U.S.C. § 1705, will result in criminal 

prosecution.

Moreover, as a matter of American constitutional law, it is clear from 

the preceding analysis that Iranian personnel subjected to criminal 

prosecution would be entitled to due process protections. Before 

encountering criminal liability, they would need to be placed on notice 

that we regard their conduct as subject to our domestic criminal law, in 

particular the provisions of the IEEPA.

Although there is some basis in law for subjecting Iranian diplomatic 

personnel to our criminal statute enforcing the freeze order, assertion of 

our criminal jurisdiction over these persons is fraught with danger. 

Moreover, since the existence of the freeze should prevent those dealing with the affected governmental instrumentalities from distributing 

property to them, it is not apparent that serious violations are likely to 

occur. We urge strongly against any formal assertion that Iranian diplomatic personnel are subject to this aspect of our criminal law.

L a r r y A . H a m m o n d

D eputy Assistant Attorney General

Office o f Legal Counsel

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