Supplementary Discussion of the President’s Powers Relating

to the Seizure of the American Embassy in Iran

U nder the V ienna C onvention on D iplom atic R elations, diplom ats are not subject to any 

form o f arrest o r detention even in case o f arm ed conflict, though their m ovem ents 

m ay be restricted. Iran ’s co n d u ct m ight be invoked in this case as a g ro u n d for 

suspending the C onvention, in w hich case non-forcible reprisals against its diplom ats in 

this country may be used.

T h e President m ay use his constitutional p o w er to p ro tect A m ericans abroad, subject to 

the consultation and reporting requirem ents o f the W ar P ow ers R esolution. W hile not 

unconstitutional on their face, these requirem ents m ay have applications w hich raise 

constitutional questions insofar as they limit the P resident’s p ow er as C om m ander-inChief.

T h e International E m ergency E conom ic P ow ers A ct and the N ational E m ergencies A ct 

to g eth er authorize the blocking o f Iranian assets and the subsequent licensing o f 

particular transactions. T hese statutes specify the p rocedures to be follow ed in the 

event such a course is follow ed.

November 11, 1979 

M EM ORAND UM O PIN IO N FO R T H E A TTO RN EY G E N E R A L

In response to your request we are providing additional details on 

some of the matters discussed in our memorandum of November 7, 

1979.

I. Treatment of Iranian Diplomats in the United States

The Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 

U.S.T. 3227, T.I.A.S. No. 7502, ratified by Iran, the United States and 

all major countries of the world, codifies the law in this area. It is 

assumed to be self-executing and thus part of domestic law as w ell.1 

Article 29 provides that a diplomat shall not be liable to any form of 

arrest or detention. Immunity continues even in case of armed conflict 

(Art. 39.2). The United States vigorously opposed the latter provision 

at the time of drafting, stating that it was unrealistic and did not 

represent universal practice. The delegation pointed out that almost

'See, e.g., Letter from Assistant A ttorney General Dixon to the Acting Legal Adviser, M ay 4, 1973, 

in the 1973 Digest of United States Practice in Int’l L. 143, 144. T he enactm ent o f the Diplomatic 

Relations Act, P.L. 95-393, 22 U.S.C. §254a et seq. (Supp. II 1978), does not affect this conclusion. 

The A ct does not purport to apply to stituations covered by the Convention but com plem ents the 

Convention by prescribing rules for non-parties and for matters not covered explicity in the C onvention, such as liability insurance.

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every government involved in W orld W ar II placed restrictions of 

some kind on the movement of enemy diplomats and the withdrawal of 

their property. The United States proposed an amendment which might 

well have applied here. It would have authorized the host state in time 

of national emergency, civil strife, or armed conflict to institute appropriate measures of control with respect to mission funds and persons 

enjoying privileges and immunities and their property, including protective custody to insure their safety. It was defeated, however, by a vote 

of 38 to 6 with 26 abstentions. 7 M. Whiteman, Digest o f In t’l Law 441.

Despite this record there are a number of approaches which can be 

used to mitigate the prohibition mentioned.

A. Protective Custody

Article 26 makes freedom of travel subject to “laws and regulations 

concerning zones entry into which is prohibited or regulated for reasons of national security.” The domestic legislative history of the Convention shows that “protective custody” could be justified under this 

provision. The State Departm ent Legal Adviser testified before the 

Senate Foreign Relations Committee that this provision 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 host state shall take appropriate steps to 

prevent attacks on a diplomat’s person, freedom, and dignity. 7 M. 

Whiteman, supra at 442. Article 26 is not limited to times of armed 

conflict. It is, in fact, used on an ongoing basis to restrict travel of 

foreign diplomats particularly where their countries impose restrictions 

on United States diplomats. Despite the reference to “laws and regulations” in Article 26, the State Departm ent informs us that there is no 

special procedure for imposing such restrictions. The appropriate embassy is merely informed of the restrictions.

The 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 domestic legislative history of the Convention. As we 

show below, it may be that we are no longer bound by the inhibition of 

Article 29 against arrest. This would, however, merely eliminate the 

prohibition; it would not, in itself, provide a valid ground under domestic law for arrest which presumably could then be challenged for 

illegality as any other arrest may be.

B. Reciprocity

Article 47.2(a) permits us to apply any of the provisions of the 

Convention restrictively because of a restrictive application of a provision to our embassy in Iran. It may, of course, be something of a 

misnomer to describe the conduct of the occupiers of the American 

embassy as a “restrictive” application. Since that government appears,

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however, to have adopted this conduct as its own, we would appear 

justified in similarly restricting the movement of Iranian diplomats.

The Diplomatic Relations Act, supra note 1, reinforces the use of 

A rt. 47 by similarly providing for restriction of immunity:

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.

22 U.S.C. § 254c. The legislative history shows that this was intended 

to be used as a tool to respond to arbitrary treatment of American 

diplomats:

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.

S. Rep. No. 958, 95th Cong. 2d Sess. 5 (1978).

C. Suspension o f Convention fo r Breach

The discussion above has proceeded on the assumption that the 

Convention is still in force. There has, however, been a material breach 

on the part of 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 of the Convention in 

whole or in part as far as the Iranians are concerned. Vienna Convention on the Law of Treaties, Art. 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, however, this would not by itself provide a 

valid legal basis for arrest but merely remove immunity from arrest. 

Although the Convention provides for the right to leave the country,

2 This treaty is not yet in force and has not been ratified by the United States. It is, however, 

generally cited as evidencing contem porary practice in this Held. Cf. Chariton v. Kelly, 229 U.S. 447. 

473 (1913).

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this could be suspended as well, particularly since Americans 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 of breach. 

Commentary on Vienna Convention on Law o f Treaties, [1966] 2 Y. B. 

Int’l L. Comm’n 169, 253-54, U.N. Doc. A /C N .4/S E R .A /1966/A dd.l.3 

These reprisals may properly relate to the rights of the Iranians under 

the Convention. Ibid.

In evaluating possible reprisals, it is useful in a modern sense to think 

of them as a method of communication:

Reprisals are usually employed when words alone cannot 

influence the other party’s decision and make it discontinue what it is doing. They are subordinated to particular 

objectives and are used in limited selective, exemplified, 

and incrementary ways. Reprisals should be distinguished 

from mere acts of vengeance or of destroying the opponent’s capabilities. Rather, they are part of a politicaldiplomatic strategy for resolving and reconciling conflicting interests. As such, communicative signals are built into 

them. The success of a reprisal may be judged by whether 

it exerts the desired influence on the target, w hether it 

stands by itself or is part of a credible threat to expand 

the conflict further, if necessary. An effective reprisal, 

therefore, while seeking to narrow some of the adversary’s alternatives, should keep other alternatives open.

This may be best achieved when retaliatory acts are understood to form part of a comprehensive strategy that 

combines negative sanctions with positive inducements.

David, The Strategy of Treaty Termination: Lawful Breaches and 

Retaliations 234 (Yale Univ. Press, 1975).

At the present time we are not aw are of specific facts which, under 

United States law, would justify arrest of individual Iranian diplomats 

even if there were no bar to their arrest under international law for the 

reasons specified. If they could be shown to be part of a conspiracy (18 

U.S.C. § 371) to damage government property (18 U.S.C. § 1361) there 

may be a basis. The Neutrality A ct and other statutes involving crimes 

agajnst foreign governments or foreign property are generally directed 

to the protection of foreign states. 18 U.S.C. § 951 et seq.

3T he term “non-forcible*' would appear to mean not involving the use o f armed force as prohibited 

by A rt. 2.4 o f the U.N. C harter rather than merely placing someone under arrest. The law of reprisal 

o f an earlier period was not so restricted. 2 O ppenheim 's Int'l Law 114 (Lauterpacht ed. 1935); 7 

M oore. Int’l Law Digest 119 (1906). This does not, o f course, limit the President s right to use force to 

directly free the hostages.

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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 of the W ar Powers Resolution. 50 U.S.C. § 1541 et seq.

A. Consultation Requirement

The consultation requirement focuses on the use of troops in hostile 

situations:

The President in every possible instance shall consult 

with Congress before introducing United States Armed 

Forces into hostilities or into situations where imminent 

involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States 

Armed 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 language replaced an earlier version which merely required consultation 

with the leadership and appropriate committees of 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 matter consultation with 

any more than a select group of congressional leaders has never been 

attempted. During the Mayaguez incident, about ten House- and eleven 

Senate members were contacted concerning the measures to be taken 

by the President. On the House side these included the Speaker, the 

majority and minority leaders, and the chairman and ranking minority 

members of the House Committee on International Relations. Testimony of State Department Legal Adviser Monroe Leigh in War

Powers: A Test o f Compliance Relative to the Danang Sealift, the Evacuation o f Phnom Penh, the Evacuation o f Saigon, and the Mayaguez Incident, Hearings before the Subcommittee on In t’l Security and Scientific

Affairs o f the House Comm, on In t’l Relations, 94th Cong. 1st Sess. 78 

(1975) (hereafter War Powers: A Test o f Compliance). The present 

Administration has acknowledged that there are practical limits to the 

consultation requirement and has said that meaningful consultations 

with “an appropriate group of congressional representatives should be 

possible.” Statement of State Department Legal Adviser Hansell before 

the Senate Foreign Relations Committee reprinted in State Department 

Bulletin, August 29, 1977 at 291, 292.

(2) A determination must also be made as to when hostilities exist 

that require consultation. President Ford took the position, for example, 

that no consultation was legally required at the Danang or Lebanon 

evacuations because hostilities were not involved. Franck, After the

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Fall: The New Procedural Framework fo r Congressional Control Over the

War Power, 71 Am. J. Int’l L. 605, 615 (1977) (hereafter Franck). The 

State and Defense Departm ents have said that “hostilities” means a 

situation in which American forces are actively exchanging fire with 

opposing units and “imminent hostilities” means a situation where there 

is a serious risk from hostile fire to the safety of 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 

meant to be firm yet flexible. H. Rep. No. 287, supra, at 6.

The use of the word “every” reflects the committee’s 

belief that such consultation prior to the commitment of 

armed forces should be inclusive. In other words, it 

should apply in extraordinary and emergency circum ­

stances—even when it is not possible to get formal congressional approval in the form of a declaration of w ar or 

other specific authorization.

At the same time, through use of the word “possible” it 

recognizes that a situation may be so dire, e.g., hostile 

missile attack underway, and require such instantaneous 

action that no prior consultation will be possible.

Id. (Emphasis in original.)

This Administration has pointed out the problem that exists in emergencies, noting that “[B]y their very nature some emergencies may 

preclude opportunity for legislative debate prior to involvement of the 

armed forces in hostile or potentially hostile situations.” It has recognized, however, that consultation may be had “in the great majority of 

cases.” Statement of Legal Adviser Hansell, supra.

(4) There may be constitutional considerations involved in the consultation requirement. W hen President Nixon vetoed the Resolution he 

did not suggest that either the reporting or consultation requirements 

were unconstitutional. Departm ent of State Bulletin, November 26, 

1973, at 662-64; Neither the Ford nor C arter administrations have taken 

the position that these requirements are unconstitutional on their face.4 

Nevertheless, there may be applications which raise constitutional questions. This view was stated succinctly by State Departm ent Legal 

Adviser Leigh:

Section 3 of the W ar Powers Resolution has, in my 

view, been drafted so as not to hamper the President’s 

exercise of his constitutional authority. Thus, Section 3 

leaves it to the President to determine precisely how

4 T he only provision that this Administration has suggested presents constitutional problems related 

to the right o f C ongress to act by concurrent resolution. See 123 Cong. Rec. 21,897 (1977).

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consultation is to be carried out. In so doing the President 

may, I am sure, take into account the effect various possible modes of consultation may have upon the risk of a 

breach in security. W hether he could on security grounds 

alone dispense entirely with “consultation” when exercising an independent constitutional power, presents a question of constitutional and legislative interpretation to 

which there is no easy answer. In my personal view, the 

resolution contemplates at least some consultation in 

every case irrespective of security considerations unless 

the President determines that such consultation is inconsistent with his constitutional obligation. In the latter 

event the President’s decision could not as a practical 

matter be challenged but he would have to be prepared to 

accept the political consequences of 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 where hostilities are taking place or imminent (which requires consultation), but 

where armed forces are sent to a foreign country equipped for combat. 

50 U.S.C. § 1543. The 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 requirement and not from 

the time that the decision to dispatch them is made. E.g., Franck at 615. 

The report must include:

(A) the circumstances necessitating the introduction of United 

States Armed Forces;

(B) the constitutional and legislative authority under which 

such introduction took place; and

(C) the estimated scope and duration of the hostilities or 

involvement.

Reports which have been filed in-the past have been brief and to the 

point; they have not run more than one or two pages. The reference to 

legal authority has been one sentence, referring to the constitutional 

power as Commander-in-Chief and Chief Executive. See War Powers: A

Test o f Compliance at 75 (Mayaguez); The War Powers Resolution, Relevant Documents, Correspondence, Reports, Subcomm. on Int’l Security 

and Scientific Affairs, House Comm, on Int’l Relations, 94th Cong., 1st 

Sess. 40 (Danang); 42 (Phnom Penh) (Comm. Print 1975).

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III. Blocking Assets of Iranians

The President may direct the Treasury Departm ent to block assets of 

Iranians and to subsequently license particular transactions as desired. 

This power is provided by the International Emergency Economic 

Powers Act (the Act), P.L. 95-223, 91 Stat. 1626, 50 U.S.C. § 1701 et

seq. (Supp. I 1977), in tandem with the National Emergencies Act, 50 

U.S.C. § 1601. Neither Act has been invoked before, although there are 

well-established precedents for employing such controls under similar 

prior authority. E.g., Sardino v. Federal 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: The consultation requirement tracks 

that found in the War Powers Resolution (discussed in Part II, supra)

and presumably can be interpreted in much the same way. 50 U.S.C. 

§ 1703. Security is, of course, necessary since advance warning will 

assist persons potentially affected in evading controls by withdrawing 

assets from banks or removing currency from the country. Unlike the 

situation involving the W ar Powers 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 proclamation of national 

emergency is necessary to use the powers available under the Act. 50 

U.S.C. § 1701. The President is authorized to declare one pursuant to 

the National Emergencies Act. 50 U.S.C. § 1621. For purposes of the 

A ct such an emergency may be declared with respect to any unusual 

and extraordinary threat to the national security, foreign policy, or 

economy of the United States which 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 emergency meets the language of the statute.

A declaration can be short and to the point. The 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 

economy of the United States and hereby declare a national em ergency.” 5 The courts will not review a determination so peculiarly 

within the province of the President. See 42 Op. A tt’y Gen. at 370.

(3) Designation o f Act: In the same proclamation or by contemporaneous or subsequent executive orders, the President must designate the 

particular emergency statute he wishes to invoke—The International

5See Proc. 4074, 7 W eekly Comp. Pres. Doc. 1174 (August 15, 1971) (“ I hereby declare a national 

em ergency during w hich I call upon the public and private sector to make the efforts necessary to 

strengthen the international econom ic position of the United States*').

130
Emergency Economic Powers Act. This is a requirement of the N ational Emergencies Act. 50 U.S.C. § 1631. We see no reason why this 

should not be done in the same document that declares a national 

emergency.

(4) Delegation: Since the statute vests powers directly in the President, any order should delegate power to an appropriate official. 3 

U.S.C. §301. Presumably this would be the Secretary of the Treasury 

who already administers similar programs. The President could in the 

order (a) declare an immediate freeze by prohibiting the transactions 

listed in the Act including transactions in foreign exchange, transfers of 

credit and payments between banking institutions, and importing 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 Act. Compare Exec. O rder No. 

11387, “Governing Certain Capital Transfers A broad,” 33 Fed. Reg. 47 

(1968). This would avoid any enforcement gap between the issuance of 

the Proclamation and implementation of the regulations by Treasury.6

(5) Publication and Transmittal to Congress: The National Em ergencies Act requires that the emergency proclamation be immediately 

transmitted to Congress and published in the Federal Register. 50 

U.S.C. § 1621.

(6) Report to Congress: Following the issuance of the order, the 

President shall “immediately” transmit a report to the Congress 

specifying:

(a) the circumstances which necessitate such exercise of 

authority;

(b) why the President believes those circumstances constitute an unusual and extraordinary threat, which has its 

source in whole or substantial part outside the United 

States, to the national security, foreign policy, or economy of the United States;

(c) the authorities to be exercised and the actions to be 

taken in the exercise of those authorities to deal with 

those circumstances;

(d) why the President believes such actions are necessary to deal with those circumstances; and

(e) any foreign countries with respect to which such 

actions are to be taken and why such actions are to be 

taker, with respect to those countries.

6We have been shown a proposal which is limited to freezing funds of Iranian students, which 

contemplates an effective date one week from issuance o f the executive order. This would not seem to 

accomplish its purpose since it would enable students to draw funds from banking institutions in 

anticipation o f the ban. M oreover, it is not clear w hether the banks could effectively adm inister an 

initial freeze limited to students since they may not have records to show just which Iranian accounts 

belong to students. It should be noted, however, that if the students w ere to w ithdraw funds from the 

banks following the effective date, they would be committing a federal crim e in doing so. 50 U.S.C. 

§ 1705.

131
50 U.S.C. § 1703(b).

The legislative history indicates that this requirement was not to 

impede use of emergency power. The House report notes:

Nothing in this section should be construed as requiring 

submission of a report as a precondition of taking action 

where circumstances require prompt action prior to or 

simultaneously with submission of a report.

H. Rep. No. 459, supra at 16. This provision is modeled on the War 

Powers Resolution. As indicated in Part II above, the practice under 

that resolution is to file very brief reports.

J o h n M. H a r m o n

Assistant Attorney General

Office o f Legal Counsel

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