b"Legislation Providing for Court-Ordered Disclosure\nof Grand Jury Materials to Congressional Committees\nProposed legislation authorizing personnel of com m ittees of Congress to obtain court-ordered\nrelease o f m atters occurring before a grand jury would violate separation of powers principles\nby encroaching upon the Executive\xe2\x80\x99s control o f prosecutorial matters and would entail a\nm ajor departure from longstanding practices and traditions o f grand jury secrecy.\nBecause the Executive alone is entrusted with the power to enforce the laws, the Executive alone\nshould m ake the day-to-day decisions as to whether the release o f law enforcement materials\nto C ongress would interfere with its prosecutorial discretion.\nIndependent access by Congress to grand jury m aterials without the consent o f the Department of\nJustice would seriously endanger grand jury secrecy and thereby weaken the grand jury as an\ninstitution.\nAccess to grand jury m aterials by other Executive Branch agencies should be limited to cases\nw here access is needed for law enforcem ent purposes and should require the approval of the\nJustice D epartm ent.\n\nSeptember 24, 1985\nM\n\nem orandum\n\nO f f ic e\n\nO\nof\n\np in io n fo r t h e\n\nL e g is l a t iv e\n\nA c t in g A\n\nand\n\ns s is t a n t\n\nA ttorney G eneral,\n\nI n t e r g o v e r n m e n t a l A f f a ir s\n\nYou have requested the comments of this office on S. 1562, introduced by\nSenator Grassley, which would amend the False Claims Act. The portion of the\nbill of interest to this office is \xc2\xa7 5, which would amend Rule 6(e) of the Federal\nRules o f Criminal Procedure. First, the amendment would permit automatic\ndisclosure o f \xe2\x80\x9cmatters occurring before a grand jury\xe2\x80\x9d to Justice Department\nattorneys for civil purposes without a court order.1 Second, the amendment\nwould expand the types of proceedings for which other executive departments\nand agencies may gain access to Rule 6(e) material to include not only \xe2\x80\x9cjudicial\nproceedings,\xe2\x80\x9d but also other matters within their jurisdiction, such as adjudica\xc2\xad\ntive and administrative proceedings. Significantly, the bill would allow these\ndepartments and agencies to seek disclosure without the approval of the De\xc2\xad\npartment o f Justice. Finally, the bill would also allow personnel of any commit\xc2\xad\ntee of Congress directly to obtain court-authorized release of \xe2\x80\x9cmatters occur\xc2\xad\nring before the grand jury\xe2\x80\x9d upon a showing of \xe2\x80\x9csubstantial need.\xe2\x80\x9d2 At present,\nCongress has no independent ability to petition the judiciary for release of\n\xe2\x80\x9cmatters occurring before the grand jury.\xe2\x80\x9d\n1 The phrase \xe2\x80\x9c m atters occurring before a grand ju ry \xe2\x80\x9d has been broadly defined by the courts to include not\nonly m aterials presented to a grand jury b u t also large categories o f law enforcem ent files that may relate to a\ngrand ju ry . See infra Part III. In this m em orandum we w ill som etim es refer to \xe2\x80\x9cm atters occurring before a\ngrand ju ry \xe2\x80\x9d as \xe2\x80\x9c Rule 6(e) m aterial \xe2\x80\x9d\n2The A d m in istratio n \xe2\x80\x99s proposed am endm ents to Rule 6(e) would allow federal agencies with the consent o f\nthe D epartm ent o f Justice to obtain court-authonzed release o f \xe2\x80\x9c m atters occurring before the grand jury\xe2\x80\x9d\nupon a show ing o f \xe2\x80\x9csubstantial need.\xe2\x80\x9d T h e A dm inistration's am endm ent makes no mention of independent\ncongressional access to R ule 6(e) material.\n\n86\n\n\x0cThe Office of Legal Counsel strongly opposes any provision that would\npermit Congress independently to petition the courts for Rule 6(e) material. By\ngiving Congress an independent right of access to large portions of law en\xc2\xad\nforcement files through the judiciary, the amendment would codify legislative\nencroachment into the Executive\xe2\x80\x99s exclusive authority to enforce the law.\nBecause it is the fundamental premise of the separation of powers that the\nExecutive alone is entrusted with the enforcement of the laws, the Executive\nalone should make the day-to-day decisions as to whether the release of law\nenforcement materials to Congress, a branch of government constitutionally\nforbidden to prosecute individual cases, would interfere with the Executive\xe2\x80\x99s\nprosecutorial discretion.\nMoreover, this amendment would represent a radical departure from the long\ntradition of grand jury secrecy. This secrecy has evolved to protect the proper\nfunctioning of the grand jury and has aided the Executive Branch in the fair\nexecution of the laws. Independent access to grand jury materials by Congress\nwithout the consent of the Department of Justice would seriously endanger the\nsecrecy on which participants in the grand jury process have come to rely, and\ntherefore be extremely injurious to the grand jury as an institution.\nThe amendment would also have a serious impact on both the frequency and\nthe method of resolution of disputes over Executive privilege. By arguably\nproviding Congress with the standing to obtain a ready judicial forum for these\ndisputes, the proposed amendment undoubtedly would multiply the number of\nconfrontations over executive privilege and encourage judicial resolution of politi\xc2\xad\ncal disputes that have in the past been handled by compromise and negotiation. As a\nconsequence, the President would be handing over his privilege, the scope of which\nhe has largely determined for himself, to the judiciary for its review. The nature and\nscope of executive privilege might thereby be profoundly changed.\nFinally, with respect to access to grand jury materials by other executive\ndepartments and agencies, we believe that access should be limited to law\nenforcement purposes and that such access must be obtained with the approval\nand representation of this Department so that the integrity of the Department\xe2\x80\x99s\ncriminal investigations and prosecutions can be protected from untimely disclosure.\n\nI. The Proposed Amendment is Inconsistent\nwith the Separation of Powers\nIn our view, the Executive Branch must be able to control congressional\naccess to law enforcement documents to prevent legislative pressures from\nimpermissibly influencing its prosecutorial decisions. The Executive Branch\xe2\x80\x99s\nduty to protect its prosecutorial discretion from congressional interference\nderives ultimately from Article II, which places the power to enforce the laws\nsquarely in the Executive Branch o f the federal government. See Buckley v.\nValeo, 424 U.S. 1, 119-20 (1976) (per curiam). The Executive therefore has\nthe exclusive authority to enforce the laws adopted by Congress, and neither\nthe Judicial nor Legislative Branches may directly interfere with the prosecutorial\n87\n\n\x0cdiscretion o f the Executive by directing the Executive to prosecute particular\nindividuals. United States v. Nixon, 418 U.S. 683, 693 (1974); Confiscation\nCases, 74 U.S. (7 W all.) 454, 457 (1869).\nIndeed one o f the fundamental rationales for the \xe2\x80\x9cseparation of powers\xe2\x80\x9d is\nthat the power to enact laws and the power to execute laws must be separated to\nforestall tyranny. As James Madison stated in The Federalist No. 47:\nThe reasons on which M ontesquieu grounds his maxim [that the\nlegislative, executive and judicial departments should be sepa\xc2\xad\nrate and distinct] are a further demonstration of his meaning.\n\xe2\x80\x9cWhen the legislative and executive powers are united in the\nsame person or body,\xe2\x80\x9d says he, \xe2\x80\x9cthere can be no liberty, because\napprehensions may arise lest the same monarch or senate should\nenact tyrannical laws to execute them in a tyrannical manner.\xe2\x80\x9d\nThe F ederalist No. 47, at 303 (J. Madison) (C. Rossiter ed. 1961). For this\nreason, the Constitution specifically excludes Congress from the decision\nwhether to prosecute particular cases. U.S. Const, art. I, \xc2\xa7 9, cl. 3. A legislative\neffort to require prosecution of specific individuals would seem to be inconsis\xc2\xad\ntent with many o f the policies upon which the Constitution\xe2\x80\x99s prohibition\nagainst bills o f attainder was based. See Selective Serv. Sys. v. Minnesota\nP ublic Interest Research Group, 468 U.S. 841,854-55 (1984); United States v.\nBrown, 381 U.S. 437, 447 (1965); United States v. Lovett, 328 U.S. 303, 315\n(1946). The constitutional role o f Congress is to adopt general legislation that\nwill be applied and implemented by the Executive Branch: \xe2\x80\x9cIt is the peculiar\nprovince o f the legislature to prescribe general rules for the government of\nsociety; the application of those rules to individuals in society would seem to\nbe the duty o f other departments.\xe2\x80\x9d Fletcher v. Peck, 10 U.S. (6 Cranch) 87,136\n(1810). The Framers intended that Congress not be involved in such prosecutorial\ndecisions or in questions regarding the criminal liability of specific individuals.\nAs the Supreme Court stated in Lovett: \xe2\x80\x9cThose who wrote our Constitution well\nknew the danger inherent in special legislative acts which take away the life,\nliberty, or property o f particular named persons, because the legislature thinks\nthem guilty of conduct which deserves punishment.\xe2\x80\x9d 328 U.S. at 317.3\nM oreover, the Department o f Justice has an obligation flowing from the Due\nProcess Clause to ensure that the fairness of the decisionmaking with respect to\nits prosecutorial function is not compromised by excessive congressional pres\xc2\xad\nsures, and that the due process rights of those under investigation are not\nviolated. See P illsbury v. FTC , 354 F.2d 952 (5th Cir. 1966). Just as an\nagency\xe2\x80\x99s ability to fulfill its statutory obligation may be impermissibly strained\nby pressure from the Legislative Branch during the administrative decision\xc2\xad\nmaking process, D.C. F ed\xe2\x80\x99n o f C ivic A s s \xe2\x80\x99ns v. Volpe, 459 F.2d 1231, 1246\xe2\x80\x9447\n(D.C. Cir.), cert, denied, 405 U.S. 1030 (1972), excessive interference with the\n3 A rticle II's specific grant o f exclusive authority to the Executive to enforce the laws and Article I's\nspecific p rohibition against legislative prosecution provide a principled basis for allow ing administrative\nagencies, w hich are part o f the Executive B ranch, to obtain court-authorized release o f Rule 6(e) material for\nlaw enforcem ent purposes, w hile prohibiting Congress from doing so.\n\n\x0cexercise of prosecutorial discretion can substantially prejudice the rights of persons\nunder investigation. Persons who ultimately are not prosecuted may be subjected to\nprejudicial publicity without being given an opportunity to cleanse themselves of\nthe stain of unfounded allegations. Moreover, the injection of impermissible factors,\nsuch as political pressures, into the decision whether to initiate prosecution not only\nendangers the rights of the accused, but also impairs the professional obligation of\ngovernment attorneys to the integrity of the judicial process and, ultimately, the\nobligation of the Executive faithfully to execute the laws.\nIn addition, potential targets of enforcement actions are entitled to protection\nfrom widespread premature disclosure of investigative information. Because\nCongress and the Department of Justice are both part of the United States\nGovernment that prosecutes a criminal defendant, there is \xe2\x80\x9cno difference\nbetween prejudicial publicity instigated by the United States through its execu\xc2\xad\ntive arm and prejudicial publicity instigated by the United States through its\nlegislative arm.\xe2\x80\x9d Delaney v. United States, 199 F.2d 107, 114 (1st Cir. 1952).\nTherefore, pretrial publicity originating in Congress can be attributed to the\ngovernment as a whole and can result in postponement, modification, or even\ntermination of the prosecution on due process grounds. Id. The discretion of\nprosecutive officials to conduct their investigations and trials in the manner\nthey deem to be the most efficient and constructive can be infringed by\nprecipitous disclosures which prompt a court to impose remedial procedural\nobligations upon the Government. To be sure, these separation o f powers and\ndue process concerns are present to a greater degree when Congress is seeking\nfiles of an open investigation than when Congress is seeking information about\nan investigation that is closed. It has been the traditional position of this\nDepartment that intolerable practical restraints on discretion may result and the\neffectiveness and fairness of investigations may be impaired if Congress be\xc2\xad\ncomes, in a sense, a partner in an ongoing investigation. If a congressional\ncommittee is fully apprised of all details o f an investigation as it proceeds,\nthere is a substantial chance that congressional pressures will influence the\ncourse of the investigation.\nSeparation of powers and due process concerns are also present, however,\nwhen Congress is seeking investigative files of closed investigations. Indeed,\nbecause one of the reasons Congress sometimes seeks files of closed investiga\xc2\xad\ntions is to put pressure on the Executive to reopen an investigation, the same\nconcerns outlined above may often attend requests for closed files. Moreover,\nthe possibility that persons who ultimately are not prosecuted may be subjected\nto prejudicial publicity is as great from congressional inquiry into closed as\ninto open investigations. For these reasons, the Office of Legal Counsel op\xc2\xad\nposes any compromise with Congress on an amendment to Rule 6(e) whereby\nCongress would be given access to Rule 6(e) material from closed investiga\xc2\xad\ntions, especially if that access is independent of executive control. Because the\nExecutive is uniquely charged with enforcing the law, it should retain the\npower in the first instance to decide what law enforcement materials to release\nto Congress after its independent evaluation of the separation of powers and\n89\n\n\x0cdue process concerns described above. In our view, it would be a great mistake\nto codify the rather artificial distinction between closed and open investiga\xc2\xad\ntions, when both kinds of investigations implicate concerns of constitutional\nm agnitude that are best evaluated on a case-by-case basis.\n\nII. Tib\xc2\xae Ammeiidnneimtt Breaches Grand JJery Secrecy\nand Thus Impairs Proper Enforcement\nof the ILaw by the Executive\nDue process concerns were at the heart o f the historical origin of the grand\njury. Indeed, the concept of grand jury secrecy originated as a means of\npreventing the government from bringing undue pressure on the grand ju ry \xe2\x80\x99s\ndecision. In the celebrated trial of the Earl of Shaftesbury in 1681, the grand\njurors insisted on hearing the witnesses to the charge of treason in secret\ndespite the demands o f the Crown that they be heard in public.\nG rand ju ry secrecy is still ju stifie d by the need to protect the w it\xc2\xad\nn esses and grand ju ro rs from undue pressures. T oday, how ever, it is not\nd isclo su re to the prosecution but disclosure to the public that is seen as\nd e stru c tiv e o f the effective functio n in g o f the grand ju ry . Indeed, se\xc2\xad\ncrecy is now th o u g h t to be o f im portance to the E xecutive in obtaining\nin d ictm en ts, b ecau se jurors m ay be apprehensive that th eir votes to\nin d ict m ay be disclosed. D o u g la s O il C o. v. P e tr o l S to p s N o rth w est,\n441 U .S. 211, 219 (1979). S ecrecy is also im portant to the E xecutive for\np re p ara tio n o f its case, because it fa cilitates free and open discussion by\nw itn esses and com plainants. Id. M oreover, secrecy facilitates the cap\xc2\xad\ntu re o f an accu sed w ho is in fa c t indicted and prevents the accused from\nobtaining collusive testimony in the hope of blocking the indictment. Id.\nFinally, secrecy protects the accused who is charged by the complaint before\nthe grand jury but is exonerated by the grand jury\xe2\x80\x99s refusal to indict. Id.\nIndependent access by Congress, or even by other agencies, to grand jury\nmaterial without the concurrence of the prosecution would obviously endanger\nthe cloak o f secrecy that has historically been seen as essential to the function\xc2\xad\ning o f the grand jury and therefore to the effective enforcement of the criminal\nlaw. Because the Department o f Justice is charged with preparing federal\ncriminal cases, it is in a far better position than Congress, other executive\nagencies, or even the judiciary to determine how essential secrecy is to the\npreparation o f a particular case. Moreover, the Department of Justice has the\npreeminent institutional interest in preserving secrecy because the confidence\no f future participants in the grand jury process in the secrecy of the proceedings\nis necessary for continued proper execution o f the laws. Therefore, this Office\nopposes the proposed amendment\xe2\x80\x99s grant o f independent access, not only to\nCongress but also to other agencies, which cannot be presumed to have the\nperspective or the institutional interest to give proper weight to the need for\ngrand jury secrecy. Even other Executive agencies should gain access to Rule\n6(e) material only with the consent of the Department of Justice.\n90\n\n\x0cIII. The Amendment Will Lead to More Disputes Over Executive\nPrivilege and Will Change the Method of Resolving These Disputes\nThe policy of the Executive Branch throughout this Nation\xe2\x80\x99s history has\nbeen generally to decline to provide committees of Congress with access to, or\ncopies of, law enforcement files except in extraordinary circumstances.4 Attor\xc2\xad\nney General Robert Jackson articulated this position over forty years ago:\nIt is the position of this Department, restated now with the\napproval of and at the direction of the President, that all investi\xc2\xad\ngative reports are confidential documents of the executive de\xc2\xad\npartment of the Government, to aid in the duty laid upon the\nPresident by the Constitution to \xe2\x80\x9ctake care that the laws be\nfaithfully executed,\xe2\x80\x9d and that congressional or public access to\nthem would not be in the public interest.\nDisclosure of the reports could not do otherwise than seri\xc2\xad\nously prejudice law enforcement. Counsel for a defendant or\nprospective defendant, could have no greater help than to know\nhow much or how little information the Government has, and\nwhat witnesses or sources of information it can rely upon. This\nis exactly what these reports are intended to contain.\n40 Op. Att\xe2\x80\x99y Gen. 4 5 ,4 6 (1941). This policy with respect to Executive Branch\ninvestigations was first expressed by President Washington and has been\nreaffirmed by or on behalf of most of our Presidents, including Presidents\nJefferson, Jackson, Lincoln, Theodore Roosevelt, Franklin Roosevelt, and\nEisenhower. No President to our knowledge has departed from this position\naffirming the confidentiality of law enforcement files.5\nThe proposed amendment is likely to multiply the number of disputes over\nexecutive privilege with respect to law enforcement files and radically change\ntheir method of resolution. Although it has been argued that the issues of\nexecutive privilege may be separated from the issue of congressional access to\nRule 6(e) material, the proposed amendment, as presently drafted, is unlikely to\npermit such separation. The term \xe2\x80\x9cmatters occurring before a grand jury\xe2\x80\x9d has\nbeen interpreted broadly to include any documents that reveal any matter\noccurring before a grand jury. Therefore, it is generally recognized that the\n4 The justifications for invoking executive privilege with respect to investigative files are rooted in the\nprinciples o f separation o f pow ers and due process outlined in Part 1 above. An additional reason for\nw ithholding investigative files is that effective and candid deliberations am ong the num erous advisers w ho\nparticipate in a case in various roles and at various stages o f a prosecution w ould be rendered im possible i f the\nconfidential deliberative com m unications were held open to public scrutiny. Cf. United States v. N ixon, 418\nU.S. 683, 708 (1974). The deliberative m em oranda that constitute a significant portion o f investigative files\nare an intnnsic part o f the prosecutorial process. Em ployees o f the Department would be reluctant to express\ntheir personal, unofficial views if those views could be obtained by congressional request. This justification\nfor w ithholding may apply to files o f both open and closed investigations\n5 Some w ithholding o f Executive Branch files has been accom plished through the President\xe2\x80\x99s form al\ninvocation o f executive privilege. More often negotiations have been undertaken by executive officers to\nprotect the integrity o f their files through com m unication o f their concerns to C ongress before resorting to a\nformal Presidential assertion o f the privilege.\n\n91\n\n\x0cphrase includes any material that would reveal the strategy or direction of the\ngrand jury investigation, the nature of the evidence produced before the grand\njury, or the views o f the grand ju ry \xe2\x80\x99s deliberations expressed by its members.\nSee, e.g., Fund f o r Constitutional G ov't v. N ational Archives, 656 F.2d 856,\n870 (D.C. Cir. 1981); United S tates v. H ughes, 429 F.2d 1243, 1294 (10th Cir.\n1970). The broad definition means that Rule 6(e) material will substantially\noverlap with the kind o f law enforcement files that the Executive has tradition\xc2\xad\nally attempted to withhold.\nAs the amendment is currently drafted, Congress may obtain a court order\ndirecting the release of all Rule 6(e) material. There is no provision that excepts\nmaterial over which the Executive has a claim of privilege from the potential\nscope of the order. Nor is there any provision that even requires that the\nExecutive be provided with notice that Congress is seeking such release.\nAssuming that a notice provision were added to the amendment, the Executive\nwould no doubt have the opportunity to assert executive privilege in court in\norder to prevent Congress from obtaining sensitive documents. Although the\npossibility of asserting executive privilege would be thereby preserved, the\nm ethod o f resolving disputes over its assertion would be transformed. Instead\no f arguing and negotiating with Congress on a case-by-case basis on the scope\no f the privilege, the President and his officers would in effect be handing over\nhis privilege to the courts for their frequent adjudication.\nThe effects of this change should not be underestimated. As a practical\nmatter, the provision o f a ready judicial forum for resolution of disputes over\nexecutive privilege would undoubtedly multiply the number of potential con\xc2\xad\nfrontations. In the past, Congress has had to engage in long and hard negotia\xc2\xad\ntions for access to documents over which there was a potential claim of\nexecutive privilege. Such negotiations have entailed both the expenditure of\ntime and political capital. Because access to the judicial forum provided for in\nthe amendment would furnish a relatively painless and rapid means of resolv\xc2\xad\ning these disputes, it would likely lead to more congressional challenges to the\nwithholding of investigative documents on executive privilege grounds.\nM oreover, the nature of executive privilege itself may be transformed by\nchanging the forum in which disputes over executive privilege are resolved.\nThe President would in effect be sharing his privilege with the judiciary.6 The\njudicial forum would give the judiciary the opportunity to frame principles to\ngovern the President\xe2\x80\x99s assertion o f executive privilege against a congressional\ndem and for information.7 In o u r view, constant judicial oversight is certain\n6 B ecause disputes o v er executive privilege between C ongress and the Executive have been resolved in an\nad hoc fashion in the past, courts have left th e perm issible scope o f such assertions alm ost totally undefined.\nIn only one case has a court clearly adjudicated the legitim acy o f the assertion of executive privilege against\na co n g ressio n al dem and fo r information. S e e Senate S elect Comm, on Presidential Campaign A ctivities v.\nN ix o n , 498 F.2d 725 (D .C. C ir. 1974) (en banc).\n7 A ssum ing th at a dispute o v er executive privilege betw een the Executive and C ongress were properly\nbefore a court, it seem s unlikely that th e court would decline to hear it on the grounds that it was a\nnonjusticiable political question. In Senate Select C om m ittee, the court declined to rule that the dispute\nbetw een the W atergate C om m ittee and P resident Nixon w as a nonjusticiable political question. M oreover, it\nContinued\n\n92\n\n\x0ceventually to erode the President\xe2\x80\x99s control over his privilege. Nor does such an\nexpanded judicial role comport well with the functioning of democratic gov\xc2\xad\nernment as a whole. The assertion of executive privilege has always been a\npractical undertaking that is not governed by fixed rules but by considerations\nof prudence that take into account political factors such as public reaction. In\nthis, as in other areas of dispute between the Legislature and the Executive,\nmore can be constructively accomplished by accommodation between the\nelected branches of government than by declarations of principle from a\njudiciary that is necessarily remote from the political exigencies of the situation.\nBecause the President holds his power of executive privilege as a trustee for\nhis successors, we believe that it would be a violation of that trust to approve a\nprovision that would have the effect of making the judiciary a frequent partner\nin determination of the scope of the privilege, even if under present political\ncircumstances such a partnership would seem advantageous. For this reason,\nthe Office of Legal Counsel is constrained to oppose any provision that\npurports to provide Congress with standing to obtain Rule 6(e) material and\nthereby enjoy the opportunity to gain ready judicial resolution of executive\nprivilege questions. We would therefore oppose a compromise that would\npermit committees of Congress directly to obtain court-authorized release of\n\xe2\x80\x9cmatters occurring before the grand jury\xe2\x80\x9d upon a showing of \xe2\x80\x9cparticularized\nneed.\xe2\x80\x9d The higher showing does not in our view rectify the proposed\namendment\xe2\x80\x99s inconsistency with the separation of powers or its potential to\nexpand the power of the judiciary over the exercise of executive privilege.\n\nConclusion\nFor the foregoing reasons, the Office of Legal Counsel urges the Department\nto oppose strongly the provisions of S. 1562 that afford Congress a mechanism\nfor obtaining access to grand jury materials. We believe that support for these\nprovisions, even if revised to limit access to closed cases, would adversely\naffect fundamental notions of the separation of powers.\nC harles\n\nJ. C o o p e r\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n7 (. . . continued)\nis also unlikely that a court w ould at present conclude that C ongress lacked standing to bring an action based\non a dispute w ith the Executive over its request for law enforcem ent docum ents. The issue o f w hether\nC ongress has standing to bring suit to protect its governm ental powers is sharply disputed at present.\nCom pare Barnes v. Kline, 759 F.2d 21, 26 (D.C. Cir. 1985) (holding that both houses o f C ongress and\nindividual m embers o f Congress had standing to challenge a pocket veto on the grounds that the veto\nim properly nullified their votes) with id. at 41 (Bork, J., dissenting) (stating that neither the H ouses of\nC ongress nor individual m em bers o f C ongress have standing to challenge the pocket veto). N evertheless, a\ncourt m ight well hold that the case for congressional standing is strengthened by the enactm ent o f this\nam endm ent. See Sierra Club v. M orton, 405 U.S. 727, 732 n.3 (1972) (\xe2\x80\x9cThe question w hether the litigant is a\nproper party to request adjudication . . . is w ithin the pow er o f C ongress to determine/*).\n\n93\n\n\x0c"


b'Department of Justice Authority Regarding\nRelocations, Reorganizations, and Consolidations\nThe provisions o f 1989 supplemental appropriations legislation for the Department o f\nJustice did not prohibit the Department from considering o r planning fo r relocations,\nreorganizations, and consolidations that had n ot been previously reported to Congress.\nUnder the sam e legislation, the Department was a lso permitted to com plete relocations,\nreorganizations, and consolidations that were begun prior to June 30, 1989.\n\nAugust 28, 1989\nM e m o r a n d u m O pin io n\nfor\n\nfo r th e\n\nA s s is t a n t A t t o r n e y G e n e r a l\n\nA d m in is t r a t io n , J u s t ic e M a n a g m e n t D iv is io n\n\nThis responds to your request o f July 11, 1989, for our opinion on the\neffect o f section 105 of the new law providing supplemental appropria\xc2\xad\ntions for the Department of Justice.1Specifically, you have asked whether\nthe Department may engage in the consideration o f and planning for relo\xc2\xad\ncations, reorganizations and consolidations that have not previously been\nreported to Congress. You have also asked whether the Department may\nobligate and expend funds to implement reorganizations which were\nreported to Congress prior to June 30, 1988, the effective date of section\n105. This latter question is asked in the context o f the reorganization of\nthe Office o f Policy Development (\xe2\x80\x9cOPD\xe2\x80\x9d) which was reported to\nCongress on June 5, 1989.\nFor the reasons set forth below, we believe that the Department may\nplan relocations, reorganizations and consolidations. We also believe that\nthe Department may complete the effectuation o f relocations, reorganiza\xc2\xad\ntions and consolidations that were begun prior to June 30, 1989. Because\nthe reorganization of OPD was begun before June 30 and indeed largely\ncompleted by that date, section 105 does not affect that reorganization.\n\nI. Background\nPrior to the enactment o f section 105, the Department\xe2\x80\x99s reorganiza\xc2\xad\ntions were governed by two provisions. The first, enacted as section 8 of\nthe Department\xe2\x80\x99s 1980 Authorization Act, requires the Department to\n1 Dire Emergency Supplemental Appropriations and TVansfers, Urgent Supplementals, and Correcting\nEnrollment Errors Act o f 1989, Pub L No 101-45,103 Stat. 97 ( \xe2\x80\x9cSupplemental Appropriations Act\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d).\n\n280\n\n\x0cnotify the House and Senate Judiciary Committees \xe2\x80\x9ca minimum o f 15\ndays before\xe2\x80\x9d undertaking significant reprogramming, reorganizations and\nrelocations.2 The second, contained in the Department\xe2\x80\x99s most recent\nappropriations bill, requires fifteen days notice for the Appropriations\nCommittee as well.3\nThe Department has consistently complied with the fifteen-day notice\nrequirement. Recently, however, certain congressmen indicated that the\nnotice provisions were part of an \xe2\x80\x9cunwritten agreement\xe2\x80\x9d that reorganiza\xc2\xad\ntions would not be implemented unless the Appropriations Committees had\nactually approved the proposal. H.R. Rep. No. 89, 101st Cong., 1st Sess. 44\n(1989). Because of the Department\xe2\x80\x99s failure to comply \xe2\x80\x9cwith the under\xc2\xad\nstanding that any proposals are subject to the approval o f the\nAppropriations Committees,\xe2\x80\x9d id. at 45, a new provision was added to the\nDepartment\xe2\x80\x99s 1989 Supplemental Appropriation Act, see supra note 1, to bar\nall reorganizations within the Department until the end of the fiscal year:\nNone o f the funds provided in this or any prior Act shall be\navailable for obligation or expenditure to relocate, reorga\xc2\xad\nnize or consolidate any office, agency, function, facility, sta\xc2\xad\ntion, activity, or other entity falling under the jurisdiction of\nthe Department o f Justice.\nSupplemental Appropriations Act, \xc2\xa7 105, 103 Stat. at 122.\n2 Pub. L. No. 96-132, \xc2\xa7 8, 93 Stat 1040, 1046 (1979). The section directs \xe2\x80\x9ceach organization o f the\nDepartment o f Justice\xe2\x80\x9d to provide notice in writing before\n(1) reprogramming o f funds in excess o f $250,000 or 10 percent, whichever is less, between\nthe programs within the offices, divisions, and boards as defined in the Department o f\nJustice\xe2\x80\x99s program structure submitted to the Committees on the Judiciary o f the Senate\nand House o f Representatives,\n(2) reprogramming o f funds in excess o f $500,000 or 10 percent, whichever is less, between the\nprograms within the Bureaus as defined in the Department o f Justice\xe2\x80\x99s program structure\nsubmitted to the Committees on the Judiciary o f the Senate and House of Representatives,\n(3) any reprogramming action which involves less than the amounts specified m paragraphs\n(1) and (2) if such action would have the effect o f significant program changes and com\xc2\xad\nmitting substantive program funding requirements in future years;\n(4) increasing personnel or funds by any means for any project or program for which funds\nor other resources have been restricted;\n(5) creation o f new programs or significant augmentation o f existing programs,\n(6) reorganization o f offices or programs, and\n(7) significant relocation o f offices or employees.\nId at 1046-47 The provision has been incorporated into subsequent appropriation bills. See, e g , Pub\nL No. 100-459, \xc2\xa7 204(a), 102 Stat. 2186, 2199 (1988) (FY 1989)\n3 Section 606(a) o f Pub L No 100^459 states*\nNone o f the funds provided under this Act shall be available for obligation or expenditure\nthrough a reprogramming o f funds which: (1) creates new programs, (2) eliminates a program,\nproject or activity, (3) increases funds or personnel by any means for any project or activity for\nwhich funds have been denied or restricted; (4) relocates an office or employees; (5) reorga\xc2\xad\nnizes offices, programs, or activities; or (6) contracts out or privatizes any functions or activi\xc2\xad\nties presently performed by Federal employees; unless the Appropriations Committees o f both\nHouses o f Congress are notified fifteen days in advance o f such reprogramming o f funds.\n102 Stat. at 2227\n\n281\n\n\x0cII. Analysis\nA. Planning\n\nYour first question is whether section 105 prevents the Department\nfrom \xe2\x80\x9cengaging in consideration of and planning for relocations, reorga\xc2\xad\nnizations and consolidations that have not yet been reported to\nCongress.\xe2\x80\x9d4 We do not believe that it does. The statute forbids the\nDepartment to \xe2\x80\x9crelocate, reorganize or consolidate\xe2\x80\x9d \xe2\x80\x94 all verbs that con\xc2\xad\nnote action and implementation. Section 105 does not mention planning\nor preparation for proposals.\nNor does the sparse legislative history, see H.R. Rep. No. 89, 101st\nCong., 1st Sess. (1989), suggest that Congress intended to prevent the\nDepartment from even thinking about future options. The prohibition\nwas aimed at the Department\xe2\x80\x99s refusal to abide by the\nunwritten agreement that they will not go forward with reor\xc2\xad\nganizations if the Appropriations Committees disapprove\ntheir proposals. In the past several months, the Justice\nDepartment and the SBA have proposed reorganizations\nwhich have not been approved by the Committees. The con\xc2\xad\nferees have learned that both the Justice Department and the\nSBA plan to go ahead with their proposals contrary to the\nwishes o f the Committees. The conferees agree that the only\nalternative left in this situation is to prohibit all reorganiza\xc2\xad\ntions for the remainder o f fiscal year 1989.\nId. at 44 (emphasis added). Read in context, this language confirms our\n\nconclusion that the statute was aimed at actual reorganizations, not the\nproposal o f a reorganization.5 We therefore believe that the Department\nmay continue to take all the steps that precede a reorganization, reloca\xc2\xad\ntion or consolidation, up to and including notice to Congress that it has a\nproposal under consideration.\nB. Reorganization o f the Office of Legal Policy\n\nAs noted above, prior to the passage o f section 105, the Department\nwas authorized to implement its proposed reorganizations fifteen days\nafter notifying Congress. The Department notified Congress about the\nproposed reorganization of the Office o f Legal Policy (\xe2\x80\x9cOLP\xe2\x80\x9d) as OPD on\n4Memorandum for William P. Barr, Assistant Attorney General, Office o f Legal Counsel, from Harry H.\nFlickinger, Assistant Attorney General for Administration (July 11, 1989).\n5 Indeed, unless the Department continues to plan and propose reorganizations, relocations, and con\xc2\xad\nsolidations, it is difficult to see how it will be able to demonstrate to Congress that it is willing to consult\nover these matters\n\n282\n\n\x0cJune 5, 1989. The Department was therefore authorized to implement the\nreorganization fifteen days later, June 20. Section 105 was signed into law\non June 30. Because OPD had largely completed its reorganization by\nJune 30, we do not believe that section 105 affects its reorganization.\nBy its terms section 105 applies only to reorganizations undertaken\nafter June 30, 1989, not to reorganizations that were completed by June\n30, 1989. Moreover, the legislative history confirms that Congress\xe2\x80\x99 pur\xc2\xad\npose in enacting section 105 was to protect what it perceived to be its\noversight prerogatives by precluding future reorganizations without full\ncongressional approval. Accordingly, section 105 was not intended to\nundo past Department actions. We conclude therefore that section 105\naffects only reorganizations which the Department had not substantially\ncompleted by June 30.\nThus, whether section 105 applies to OLP depends on whether the\nDepartment had substantially completed the reorganization o f OLP into\nOPD by June 30. We have been advised that the Department had taken\nall the significant steps necessary to reorganize OLP by that date. The\nAttorney General had signed a new organization chart reflecting the\nexistence of OPD within the Department. Mr. Boyd had moved from his\nprevious job in the Department to become the Director of OPD. A for\xc2\xad\nmer Deputy Assistant Attorney General in OLP had been named Deputy\nDirector o f OPD. New stationery using the OPD letterhead had been\nordered and put into use, and the new title \xe2\x80\x9cOPD\xe2\x80\x9d rather than \xe2\x80\x9cOLP\xe2\x80\x9d had\nbeen used in official documents. We believe that these steps, which\nwere completed by June 30, constituted the reorganization o f OLP into\nOPD.GTherefore, we believe that OLP\xe2\x80\x99s reorganization into OPD was\ncomplete when section 105 became law. Because section 105 is pro\xc2\xad\nspective in application, wc do not believe that section 105 applies to the\nOLP reorganization.\nWe recognize that Representative Smith sent a letter, dated June 27,\n1989, stating that the Appropriations Committee o f the House of\nRepresentatives did not approve o f the reorganization. This letter, how\xc2\xad\never, had no legal effect on the Department\xe2\x80\x99s authority to effectuate the\nreorganization. Even if it had been sent within fifteen days o f the notice\ngiven by the Department on June 5, the letter could not affect the\nDepartment\xe2\x80\x99s authority to execute the law. That can only be affected by\npassage of a new law, not by the disapproval of a congressional commit\xc2\xad\ntee. INS v. Chadha, 462 U.S. 919 (1983).\n\nIII. Conclusion\nFor the reasons stated above, we believe that Department officials may\ncontinue to study and plan for any future reorganizations, including all\n0Indeed, we are not aware o f any other steps that are necessary in order to create OPD.\n\n283\n\n\x0cpreparations that would previously have preceded congressional notifi\xc2\xad\ncation. We also believe that section 105 was not intended to undo essen\xc2\xad\ntially completed reorganizations. Because OLP\xe2\x80\x99s reorganization into OPD\nwas complete by June 30, 1989, the reorganization is unaffected by the\npassage o f section 105.\nWITJ JAM P. BARR\nAssistant Attorney General\nOffice of Legal Counsel\n\n284\n\n\x0c'


b'Overview of the Neutrality Act\nOverview o f the Neutrality Act, focusing on explanations of certain key provisions, and summa\xc2\xad\nrizing various judicial and Attorney General opinions interpreting those provisions.\n\nSeptember 20, 1984\nM\n\nem orandum\n\nO p in io n\n\nfor the\n\nA ttorney G\n\neneral\n\nThis memorandum is intended to provide you with a broad overview of the\nNeutrality Act, 18 U.S.C. \xc2\xa7\xc2\xa7 956 et seq., its scope and applicability, and\nprevious constructions of the various provisions of the Act by the courts,\nAttorneys General, and this Office.\nEarlier this year, we provided you with our views regarding the applicability\nof the Act to official Government activities. \xe2\x80\x9cApplication of the Neutrality Act\nto Official Government Activities,\xe2\x80\x9d 8 Op. O.L.C. 58 (1984). That memoran\xc2\xad\ndum contains an extensive analysis of the legislative history of the various\nprovisions of the Act, from 1794 when it was first enacted, through the several\namendments to the Act, particularly those enacted in the nineteenth century. It\nalso examines in significant detail several major judicial decisions construing\nthe Act, as well as the opinions of various Attorneys General regarding the Act.\nIn our earlier memorandum, we concluded that \xe2\x80\x9cthe Act does not proscribe\nactivities conducted by Government officials acting within the course and\nscope of their duties as officers of the United States but, rather, was intended\nsolely to prohibit actions by individuals acting in a private capacity that might\ninterfere with the foreign policy and relations of the United States.\xe2\x80\x9d 8 Op.\nO.L.C. at 58.1\n1 However, as you are aware, the United States District C ourt for the N orthern D istrict o f C alifornia\nrecently held that the C IA \'s alleged covert \xe2\x80\x9caid[ingj, fu n d in g ] and p a rtic ip a tio n ] in a m ilitary expedition\nand enterprises utilizing N icaraguan exiles for the purpose o f attacking and overthrow ing the government o f\nN icaragua" could constitute a violation o f 18 U.S C. \xc2\xa7\xc2\xa7 956 and 960, for purposes o f triggering the\ninvestigation provisions o f the Ethics in G overnm ent Act, 28 U.S.C. \xc2\xa7\xc2\xa7 591, et seq. See Dellums v. Smith, 573\nF. Supp. 1489, 1492 (N.D. Cal. 1983); see also 577 F. Supp. 1449 (N.D. Cal. 1984); 577 F. Supp. 1456 (N D.\nCal. 1984). The D epartm ent appealed the district c o u rt\'s decision earlier this year, and is presently aw aiting\na decision by the U nited States Court o f A ppeals for the Ninth Circuit.\nThe only other current litigation o f which we are aware in which the issue o f the applicability o f the\nNeutrality Act to G overnm ent officials is raised is m Sanchez Espinoza v Reagan, 568 F Supp. 596 (D.D C.\n1983), appeal pending, N o 83-1997 (D.C. Cir argued May 24,1 9 8 4 ). However, the District C ourt dism issed\nthe plaintiffs\' claims that the President, through his officers and appointees, had violated, inter aha, the\nNeutrality Act, the W ar Powers Resolution, 50 U.S.C. \xc2\xa7\xc2\xa7 1541-1548, and the Boland Amendm ent to the\nDepartment o f D efense A ppropriations Act, 1983, Pub L. No. 9 7 -3 7 7 , \xc2\xa7 793, 96 Stat. 1830, 1865 (1982), by\nwaging an undeclared w ar against the Nicaraguan Government, on the ground that plaintiffs\xe2\x80\x99 claims pre\xc2\xad\nsented nonjusticiable political questions.\n* NOTE: A fter this opinion was issued by the O ffice o f Legal Counsel, the U nited States C ourt of Appeals\nfor the Ninth C ircuit reversed the district court\xe2\x80\x99s decision in Dellums v. Smith on the ground that the plaintiffs\nlacked standing to bring the action. See Dellums v. Smith, 797 F.2d 817 (9th C ir 1986).\n\n209\n\n\x0cI. The N eutrality Act\n\nThe provisions of the Neutrality Act, presently codified at 18 U.S.C. \xc2\xa7\xc2\xa7 956\net seq., remain substantially similar to the provisions originally enacted in\n1794. See 1 Stat. 381.2\n\nSection 958 makes it unlawful for any United States citizen to accept, within\nthe jurisdiction of the United States, a commission to serve a foreign nation in\na war against a country with which the United States is at peace.3\nSection 959 prohibits anyone within the United States from enlisting or\npaying someone else to enlist him in the military service of a foreign state.4\nSection 960 prohibits the knowing participation in, preparation for, or fi\xc2\xad\nnancing of a hostile expedition from within the United States against a nation\nwith which the United States is at peace.5\nSection 961 prohibits the outfitting of military vessels within the United\nStates which are in the naval service of a foreign country engaged in war with a\ncountry with which the United States is at peace.6 Finally, \xc2\xa7 962 prohibits the\n2 T here are several additional provisions o f the neutrality laws w hich were not enacted until 1917. One\nprovision, presently codified at 18 U .S.C . \xc2\xa7 956, prohibits conspiring to injure the property o f a foreign\ngovernm ent w ith w hich the United S ta te s is at peace S ection 956 provides in pertinent part:\nIf tw o o r m ore persons within th e jurisdiction o f the United States conspire to injure or destroy\nspecific property situated w ithin a foreign country and belonging to a foreign governm ent or to\nany political subdivision thereof w ith which the U nited States is at peace, or any railroad, canal,\nbridge, o r o ther public utility so situated, and if one o r more such persons com m its an act within\nthe ju risd ic tio n o f the United S ta te s to effect the o bject o f the conspiracy, each o f the parties to\nthe conspiracy shall be fined not m ore than $5,000 o r imprisoned not more than three years, or both.\nThe other provisions, enacted in 1917, codified at 18 U .S.C . \xc2\xa7\xc2\xa7 9 6 3 -9 6 7 , deal with the detention in United\nS tates ports o f arm ed vessels or vessels bound for belligerent nations until the ow ners certify to U nited States\ncustom s o fficials that the vessels will n o t be used in the m ilitary service o f belligerent nations after departure\nfrom the U nited States.\n3 Section 958 provides:\nA ny citizen o f the United States who, within the jurisdiction thereof, accepts and exercises a\ncom m ission to serve a foreign p rin ce, state, colony, district, or people, in war, against any prince,\nstate, colony, district, or people, w ith whom the U nited States is at peace, shall be fined not more\nthan $2,000 o r imprisoned not m o re than three years, o r both.\n4 S ection 959 provides in pertinent part:\nW hoever, w ithin the United S tates, enlists o r enters himself, or hires or retains another to enlist\no r en ter him self, o r to go beyond th e jurisdiction o f the United S tates with intent to be enlisted o r\nentered in the service o f any fo reig n prince, state, colony, district, or people as a soldier o r as a\nm arine o r seam an on board any vessel o f war, letter o f marque, o r privateer, shall be fined not\nm ore th an $1,000 o r imprisoned n o t more than three years, or both.\n5 Section 960 provides:\nW hoever, w ithin the United S tates, know ingly begins or sets on foot or provides or prepares a\nm eans fo r o r furnishes the m oney for, o r takes part in, any m ilitary or naval expedition or\ne n terp rise to b e c arried on from th en ce against the territory or dom inion of any foreign prince or\nstate, o r o f any colony, district, o r people with w hom the United States is at peace, shall be fined\nnot m ore than $3,000 or im prisoned not more than three years, o r both.\n6 Section 961 provides in pertinent part:\nW hoever, w ithin the United S tates, increases o r augm ents the force o f any ship o f war . . .\nw hich, a t the tim e o f her arrival w ith in the U nited States, was a ship o f war . . . in the service o f\nany foreign prince o r state, or o f any colony, d is tn c t, o r people, o r belonging to the subjects or\nc itizen s o f any such prince or sta te , colony, district, o r people, the same being at war w ith any\nforeign prince o r state, or of any colony, district, o r people, with whom the United States is at peace, by\nadding to the number of the guns o f such vessel . . . o r by adding thereto any equipment solely\napplicable to war, shall be fined not more than $1,000 o r imprisoned not more than one year, o r both.\n\n210\n\n\x0coutfitting or furnishing of any vessel within the United States with the intent\nthat such vessel be used in the service of a foreign nation against a country with\nwhich the United States is at peace.7\nII. Judicial Decisions\nThe earliest judicial decisions construing the Neutrality Act involved the\npredecessors to \xc2\xa7\xc2\xa7 961 and 962, which generally prohibit the arming of vessels\nin United States ports to be used in the service of foreign nations against\nnations with which the United States is at peace. The earliest cases generally\nwere brought against private individuals who \xe2\x80\x9coutfitted\xe2\x80\x9d French ships engaged\nin hostilities with the British Navy. See, e.g., United States v. Peters, 3 U.S. (3\nDali.) 121 (1795); United States v. Guinet, 2 U.S. (2 Dali.) 321 (1795). See also\nUnited States v. Skinner, 27 F. Cas. 1123 (C.C.D.N.Y. 1818) (No. 16309); The\nBetty Carthcart, 17 F. Cas. 651 (D.S.C. 1795) (No. 9742); The Nancy, 4 F. Cas.\n171 (D.S.C. 1795) (No. 1898). These early cases focused on what constituted\nthe \xe2\x80\x9carming\xe2\x80\x9d of a vessel, the distinction between \xe2\x80\x9ccommercial\xe2\x80\x9d and \xe2\x80\x9chostile\xe2\x80\x9d\nintent, and upheld the authority of the United States Government to define, as a\nmatter of national policy, the political bodies in whose service, and against\nwhich, the prohibited acts had been committed. See generally United States v.\nThe Three Friends, 166 U.S. 1 (1897). Moreover, these cases established that\n\xc2\xa7\xc2\xa7 961 and 962 of the Act do not prohibit armed vessels belonging to citizens\nof the United States from sailing out of United States ports; rather the provi\xc2\xad\nsions require only that the owners of such vessels certify that the vessels will\nnot be used to commit hostilities against foreign nations at peace with the\nUnited States. See United States v. Quincy, 31 U.S. (6 Pet.) 445 (1832). Finally,\nthese cases recognized, with regard to \xc2\xa7\xc2\xa7 961 and 962, the principle generally\napplicable to all of the neutrality provisions, that the preparations prohibited by\nthe Act must have been made within the United States, and that the intention\nwith respect to the hostile deployment of the vessel must have been formed\nbefore leaving the United States. Id.\nThe early decisions construing the Act, as well as subsequent judicial deci\xc2\xad\nsions, make clear that, in view of its purpose to prevent private citizens from\ninterfering with the conduct of foreign policy by duly authorized Government\nofficials, the Neutrality Act, particularly \xc2\xa7 960, prohibits only \xe2\x80\x9cthe use of the\nsoil or waters of the United States as a base from which unauthorized military\nexpeditions or military enterprises shall be carried on against foreign powers\n7 Section 962 provides in pertinent part:\nW hoever, w ithin the U nited States, furnishes, fits out, arm s, or attem pts to furnish, fit out or\narm, any vessel, w ith intent that such vessel shall be employed in the service o f any foreign\nprince, o r state, o r o f any colony, district, o r people, to cruise, or com m it hostilities against the\nsubjects, citizens, o r property o f any foreign prince or state, o r o f any colony, district, or people\nw ith whom the U nited States is at peace; or\nW hoever issues o r delivers a com m ission within the U nited States for any vessel, to the intent\nthat she m ay be so em ployed shall be fined not more than $10,000 or im prisoned not more than\nthree years, o r both.\n\n211\n\n\x0cwith which the United States is at peace.\xe2\x80\x9d United States v. Murphy, 84 F. 609,\n612 (D. Del. 1898). See also Wiborg v. United States, 163 U.S. 632 (1896);\nUnited States v. O \xe2\x80\x99Sullivan, 27 F. Cas. 367 (S.D.N.Y. 1851) (No. 15974);\nUnited States v. Smith, 27F. Cas. 1192 (C.C.S.D.N.Y. 1806) (No. 16342). The\njury instructions in the Murphy case, which provide an extensive discussion of\nthe elements of the \xe2\x80\x9cmilitary expedition\xe2\x80\x9d offense under \xc2\xa7 960, are illustrative\nof this point:\nProviding the means of transportation for a military enterprise\nto be carried on from the United States against Spanish rule in\nCuba is, within the meaning of [\xc2\xa7 9 6 0 ],. . . preparing the means\nfor such military enterprise to be so carried on, and, if done with\nknowledge, on the part of the person so providing the means of\ntransportation, of the character and purpose of such enterprise,\nis denounced by the statute.. . . The broad purpose of [\xc2\xa7 960] is\nto prevent complications between this government and foreign\npowers. . . . What it prohibits is a military expedition or a\nmilitary enterprise from this country against any foreign power\nat peace with the United States.\n*\n\n*\n\n*\n\nWhere a number of men, whether few or many, combine and\nband themselves together, and thereby organize themselves into\na body, within the limits of the United States, with a common\nintent or purpose on their part at the time to proceed in a body to\nforeign territory, there to engage in carrying on armed hostili\xc2\xad\nties, either by themselves or in co operation with other forces,\nagainst the territory or dominions of any foreign power with\nwhich the United States is at peace, and with such intent or\npurpose proceed from the limits of the United States on their\nway to such territory, either provided with arms or implements\nof war, or intending and expecting . . . to secure them during\ntransit, . . . in such case all the essential elements of a military\nenterprise exist. . . . It is sufficient that the military enterprise\nshall be begun or set on foot within the United States; and it is\nnot necessary that the organization of the body as a military\nenterprise shall be completed or perfected within the United\nStates. Nor is it necessary that all the persons composing the\nmilitary enterprise should be brought in personal contact with\neach other within the limits of the United States; nor that they\nshould all leave those limits at the same point. It is sufficient that\nby previous arrangement or agreement, whether by conversa\xc2\xad\ntion, correspondence or otherwise, they become combined and\norganized for the purposes mentioned, and that by concerted\naction, though proceeding from different portions of this coun\xc2\xad\ntry, they meet at a designated point either on the high seas or\n212\n\n\x0cwithin the limits of the United States. Under such circumstances\na military enterprise to be carried on from the United States\nexists within the meaning of the law.\n84 F. Cas. at 612-14.\nIII. Attorney General Opinions\nAs is the case with judicial decisions on the subject, the earliest opinions of\nAttorneys General construing the Neutrality Act distinguished between \xe2\x80\x9ccom\xc2\xad\nmercial\xe2\x80\x9d and \xe2\x80\x9chostile\xe2\x80\x9d intent for purposes of the prohibition, by the predeces\xc2\xad\nsors to \xc2\xa7\xc2\xa7 961 and 962, on \xe2\x80\x9coutfitting vessels of war.\xe2\x80\x9d See, e.g., 2 Op. Att\xe2\x80\x99y\nGen. 86 (1828); 1 Op. Att\xe2\x80\x99y Gen. 231 (1818); 1 Op. Att\xe2\x80\x99y Gen. 190 (1816).\nAttorneys General have opined that the Act forbids furnishing ships of war in\nAmerican ports with guns and other military equipment to be used by nations\nagainst nations with which the United States is at peace. See, e.g., 5 Op. Att\xe2\x80\x99y\nGen. 92 (1849); 4 Op. Att\xe2\x80\x99y Gen. 336 (1844); 3 Op. Att\xe2\x80\x99y Gen. 739 (1841).\nThe predecessor to \xc2\xa7 959 was construed by early Attorneys General to\nprohibit the recruitment or enlistment of persons for service on foreign vessels\nof war in American ports. See 4 Op. Att\xe2\x80\x99y Gen. 336 (1844). This latter\nprohibition on enlistment was construed by Attorney General Cushing to\nprohibit the undertaking by belligerent nations to enlist troops in the United\nStates, on the ground that such action constitutes a \xe2\x80\x9cgross national aggression\non the United States and insults our national sovereignty,\xe2\x80\x9d for which all, except\nthose protected by diplomatic immunity, are punishable. 7 Op. Att\xe2\x80\x99y Gen. 367,\n382 (1855). Attorney General Cushing\xe2\x80\x99s lengthy opinion on foreign enlistment\npremises the statutory prohibition in \xc2\xa7 959 on the notion that while a neutral\nstate may permit a belligerent nation to raise troops on its soil, it should not\ngrant such a concession to one belligerent and not to all. Id.\nAs early as 1795, Attorney General Bradford opined that the Neutrality Act\ndid not preclude the commission of hostile acts by American citizens against\nNations with which the United States is at peace as long as the potential\ndefendants did not set foot from American soil. Regarding American citizens\nwho, while trading on the coast of Africa, \xe2\x80\x9cvoluntarily joined, conducted,\naided, and abetted a French fleet in attacking\xe2\x80\x9d a British settlement on that coast,\nthe Attorney General stated:\n[AJcts of hostility committed by American citizens against such\nas are in amity with us, being in violation of a treaty, and against\nthe public peace, are offences against the United States, so far as\nthey were committed within the territory or jurisdiction thereof;\nand, as such, are punishable by indictment in the district or\ncircuit courts.\n*\n\n*\n\n*\n\nSo f ar . . . as the transactions complained of originated or took\nplace in a foreign country, they are not within the cognizance of\n213\n\n\x0cour courts; nor can the actors be legally prosecuted or punished\nfor them by the United States.\n1 Op. Att\xe2\x80\x99y Gen. 57,58 (1794). Pointing out that the Government\xe2\x80\x99s inability to\nprosecute under the Act resulted solely from \xc2\xa7 960\xe2\x80\x99s requirement that the\ndefendant have \xe2\x80\x9cset foot\xe2\x80\x9d from \xe2\x80\x9cwithin the United States,\xe2\x80\x9d Attorney General\nBradford noted that those \xe2\x80\x9cwho have been injured by these acts of hostility\nhave a remedy by a civil suit in the courts of the United States.\xe2\x80\x9d Id. at 59.\nIn 1856, Attorney General Cushing distinguished between the mere \xe2\x80\x9corgani\xc2\xad\nzation, in one country or state, of combinations to aid or abet rebellion in\nanother, or in any other way to act on its political institutions,\xe2\x80\x9d which is not\nprohibited by the Act, from overt \xe2\x80\x9cattempts to interfere in the affairs of foreign\ncountries by force,\xe2\x80\x9d which is unlawful. 8 Op. Att\xe2\x80\x99y Gen. 216 (1856). See also 8\nOp. Att\xe2\x80\x99y Gen. 472 (1855). The activities of the former, which the Attorney\nGeneral referred to as \xe2\x80\x9cRevolutionary Aid Societies,\xe2\x80\x9d while \xe2\x80\x9ca violation of\nnational amity and comity,\xe2\x80\x9d are limited to \xe2\x80\x9cinflammatory agitation\xe2\x80\x9d and dis\xc2\xad\ncussion, falling short of the unlawful enlistment and military expeditions\nprohibited by the Act. Id.\nIn 1869, Attorney General Hoar opined that the Neutrality Act was properly\napplicable only with respect to political entities recognized by the United\nStates as an \xe2\x80\x9cindependent government, entitled to admission into the family of\nnations\xe2\x80\x9d;\nThe statute of 1818 is sometimes spoken of as the Neutrality\nAcf, and undoubtedly its principal object is to secure the perfor\xc2\xad\nmance of the duty of the United States, under the law of nations,\nas a neutral nation in respect to foreign powers . . . . The United\nStates have not recognized the independent national existence of\nthe island of Cuba, or any part thereof, and no sufficient reason\nhas yet been shown to justify such a recognition. In the view of\nthe Government of the United States, as a matter of fact, which\nmust govern our conduct as a nation, the island of Cuba is\nterritory under the government of Spain, and belonging to that\nnation.\nIf ever the time shall come when it shall seem fitting to the\npolitical department of the Government of the United States to\nrecognize Cuba as an independent government, entitled to ad\xc2\xad\nmission into the family of nations, or, without recognizing its\nindependence, to find that an organized government capable of\ncarrying on war, and to be held responsible to other nations for\nthe manner in which it carries it on, exists in that island, it will\nbe the duty of that department to declare and act upon those facts.\n*\n*\n*\nBut, on the other hand, when a nation with which we are at\npeace, or the recognized government thereof, undertakes to\n214\n\n\x0cprocure armed vessels for the purpose of enforcing its own\nrecognized authority within its own dominions, although there\nmay be evidence satisfactory to show that they will aid the\ngovernment in the suppression of insurrection or rebellion, in a\nlegal view this does not involve a design to commit hostilities\nagainst anybody.\n*\n*\n*\nThe concession of belligerent rights to a \xe2\x80\x9ccolony, district, or\npeople\xe2\x80\x9d in a state of insurrection or revolution, necessarily\ninvolves serious restrictions upon the ordinary rights of the\npeople of this country to carry on branches of manufacture and\ntrade which are unrestricted in time of peace. To prevent our\nmechanics and merchants from building ships of war and selling\nthem in the markets of the world, is an interference with their\nprivate rights which can only be justified on the ground of a\nparamount duty in our international relations; and however much\nwe may sympathize with the efforts of any portion of the people\nof another country to resist what they consider oppression or to\nachieve independence, our duties are necessarily dependent upon\nthe actual progress which they have made in reaching these\nobjects.\n13 Op. Att\xe2\x80\x99y Gen. 177, 178, 180 (1869). Thus, he concluded, the Act did not\nprohibit the building of gunboats in New York to be sold to the Spanish\ngovernment for possible use by that Government against the Cuban insurrec\xc2\xad\ntionists. Nor would \xc2\xa7 962 of the Act prohibit the supplying of Cuban insurgents\nwith men, arms and munitions of war. 13 Op. Att\xe2\x80\x99y Gen. 541 (1841).8 In 1895,\nAttorney General Harmon, having declared that \xe2\x80\x9cneither Spain nor any other\ncountry had recognized the Cuban insurgents as belligerents,\xe2\x80\x9d 21 Op. Att\xe2\x80\x99y\nGen. 267, 269, opined:\nThe mere sale or shipment of arms and munitions of war by\npersons in the United States to persons in Cuba is not a violation\nof international law [nor of the neutrality laws], however strong\na suspicion there may be that they are to be used in an insurrec\xc2\xad\ntion against the Spanish government. The right of individuals in\nthe United States to sell such articles and ship them to whoever\nmay choose to buy has always been maintained.\n8 In a very succinct opinion. A ttorney General Akerman em phasized that his opinion addressed only the\npredecessor to \xc2\xa7 962, adding that the allegations \xe2\x80\x9cmight be material in connection with other p ro o f/\' 13 Op.\nA tt\'y Gen. 541. D epending upon the allegations, and w hether the United States Governm ent recognized the\nCuban insurrectionists as a sufficiently distinct political body to constitute more than a dom estic irritant to\nSpain\'s internal affairs, a colorable claim under \xc2\xa7 960 could be made. See, e g., 21 Op. A tt\xe2\x80\x99y G en. 267, 269\n(1896) (\xe2\x80\x9c International law takes no account o f a m ere insurrection, confined w ithin the lim its o f a country,\nwhich has not been protracted o r successful enough to secure for those engaged in it recognition as\nbelligerents by their ow n governm ent or by foreign governm ents.\xe2\x80\x9d).\n\n215\n\n\x0c*\n\nIf, however, the persons supplying or carrying arms and mu\xc2\xad\nnitions from a place in the United States are in any wise parties\nto a design that force shall be employed against the Spanish\nauthorities, or that, either in the United Sates or elsewhere,\nbefore final delivery of such arms and munitions, men with\nhostile purposes toward the Spanish Government shall also be\ntaken on board and transported in furtherance of such purposes,\nthe enterprise is not commercial, but military, and is in violation\nof international law and of our own statutes.\nId. at 270, 271 (emphasis added).\n\nFurther attempts to distinguish between \xe2\x80\x9ccommercial\xe2\x80\x9d and \xe2\x80\x9chostile\xe2\x80\x9d intent in\ntrading with belligerents were made by Attorney General Knox in 1902.\nResponding to the Secretary of State\xe2\x80\x99s inquiry regarding the legality of ship\xc2\xad\nping horses from New Orleans to South Africa, a belligerent, Attorney General\nKnox opined that although a neutral nation is prohibited by the general prin\xc2\xad\nciples of international law from giving aid to one of the belligerents during a\nwar, \xe2\x80\x9ccarrying on commerce with the belligerent nation in the manner usual\nbefore the war is . . . agreed not to be in itself giving such aid.\xe2\x80\x9d 24 Op. Att\xe2\x80\x99y\nGen. 15, 18 (1902). He added, however, that \xe2\x80\x9cthe fact that neutral individuals\ninstead of their government give aid to the belligerent does not relieve the\nneutral government from guilt,\xe2\x80\x9d unless the acts are, by their nature, \xe2\x80\x9cimpracti\xc2\xad\ncable or excessively burdensome for the government to watch or prevent.\xe2\x80\x9d Id.\nSeveral days later, Attorney General Knox referred to this opinion and that of\nhis predecessor, Attorney General Harmon, 21 Op. Att\xe2\x80\x99y Gen. 267 (1895), in\nadvising the Secretary of State that the shipping of arms to China, notwith\xc2\xad\nstanding the presence of insurrectionary movements, would constitute a com\xc2\xad\nmercial venture and therefore not a violation of the Neutrality Act. 24 Op. Att\xe2\x80\x99y\nGen. 25 (1902).\nPrior to the United State\xe2\x80\x99s engagement in World War II, Attorney General\nMurphy construed the Act to prohibit the transporting of any articles or\nmaterials from a United States port to a port of a belligerent nation, until all\ngoods of United States citizens on board had been transferred to foreign\nownership. See 39 Op. Att\xe2\x80\x99y Gen. 391 (1939). Later that year, Attorney\nGeneral Murphy opined that American trawlers and tugs which had been sold\nto French concerns could lawfully depart United States ports after assurances\nby the French government that the vessels were not intended to be employed to\ncommit hostilities against another belligerent. 39 Op. Att\xe2\x80\x99y Gen. 403 (1939).\nFinally, Attorney General Jackson opined in 1940 that, while the United\nStates Government could sell certain outdated American destroyers to the\nBritish Government during World War II, it was precluded by the predecessor\nto \xc2\xa7 964 from selling to the British Government \xe2\x80\x9cmosquito boats\xe2\x80\x9d which were\nunder construction by the United States Navy, \xe2\x80\x9csince . . . [the latter] would\nhave been built, armed or equipped with the intent, or with reasonable cause to\n\n216\n\n\x0cbelieve, that they would enter the service of a belligerent after being sent out of\nthe jurisdiction of the United States.\xe2\x80\x9d 39 Op. Att\xe2\x80\x99y Gen. 484, 496 (1940).9 In\ndistinguishing between the over age destroyers and the \xe2\x80\x9cmosquito boats\xe2\x80\x9d which\nwere, at that time, under construction, Attorney General Jackson referred to the\n\xe2\x80\x9ctraditional\xe2\x80\x9d rules of international law,\xe2\x80\x9d which distinguish between the selling\nof previously armed and outfitted vessels to a belligerent, and the building of\narmed vessels \xe2\x80\x98\xe2\x80\x9cto the order o f a belligerent.\xe2\x80\x9d\' Id. at 495 (quoting 2 Oppenheim,\nInternational Law 574-76).\nThis distinction, regarding which Jackson cites Oppenheim\xe2\x80\x99s characterization as\n\xe2\x80\x98\xe2\x80\x9chair splitting,\xe2\x80\x9d\xe2\x80\x99 although \xe2\x80\x9c\xe2\x80\x98logically correct,\xe2\x80\x99\xe2\x80\x9d is premised upon the view that by\n\xe2\x80\x9ccarrying out the order of a belligerent, [a neutral nation permits its] territory [to be]\nmade the base of naval operations,\xe2\x80\x9d in violation of a neutral \xe2\x80\x99s \xe2\x80\x9cduty of impartiality.\xe2\x80\x9d\nId. Because of the potential importance of this distinction and its subtleties, we set\nout below the text of Attorney General Jackson\xe2\x80\x99s lengthy quote from Oppenheim\xe2\x80\x99s\ntreatise which explains the rationale of this view in greater detail.10\n9 W e noted in our earlier m emorandum that \xc2\xa7\xc2\xa7 963 and 964, first enacted as part o f the Espionage A ct of\n1917, 40 Stat. 221 22, codified the substantive rules o f international law forbidding the delivery o f armed\nvessels to belligerent pow ers by neutral nations. Regarding these provisions and Attorney General Jackson\xe2\x80\x99s\nopinion, we concluded that:\nAlthough some com m entators have suggested that A ttorney General Jackson\xe2\x80\x99s opinion supports\nthe view that all o f the Neutrality A ct provisions were intended to apply to Government\nactivities, we believe that \xc2\xa7 964 by its term s is limited to circum stances involving a declared war,\nunlike the other neutrality laws, and was proposed to Congress by Attorney General G regory in\n1917 for the purpose o f providing \xe2\x80\x9cfor the observance o f obligations imperatively imposed by\ninternational law upon the U nited States.\xe2\x80\x9d H R Rep. No. 3 0 ,65th Cong., 1st Sess. 9 (1917).\n8 Op. O.L.C. at 77 n.21. In 1941, how ever, C ongress enacted the Lend Lease Act, 55 Stat. 31, which\nauthorized the President to supply, with certain lim itations, military equipm ent to the governm ent o f any\nnation the defense o f which he deem s vita) to the defense o f the United States. This Act, which granted\ntem porary em ergency pow ers to the President, effectively suspended the operation o f the predecessor to\n\xc2\xa7 964 until June 30, 1943 See S. Rep. No. 45, 77th Cong., 1st Sess. (1941); H.R. Rep. No 18, 77th Cong., 1st\nSess. (1941). See generally 40 Op. A tt\xe2\x80\x99y Gen. 58 (1941).\n10 Attorney G eneral Jackson quoted the follow ing from 2 Oppenheim , International Law 574-76:\nW hereas a neutral is in no wise obliged by his duty o f im partiality to prevent his subjects from\nselling arm ed vessels to the belligerents, such arm ed vessels being merely contraband o f w ar, a\nneutral is bound to em ploy the m eans at his disposal to prevent his subjects from building, fitting\nout, or arm ing, to the order o f either belligerent, vessels intended to be used as men o f war, and to\nprevent the departure from his jurisdiction o f any vessel which, by order o f either belligerent, has\nbeen adopted to w arlike use. The difference betw een selling arm ed vessels to belligerents and\nbuilding them to order is usually defined in the follow ing way.\nAn armed ship, being contraband o f war, is in no w ise different from other kinds o f contraband,\nprovided that she is not manned in a neutral port, so that she can com m it hostilities at once after\nhaving reached the open sea. A subject o f a neutral who builds an armed ship, or arm s a\nmerchantm en, not to the order o f a belligerent, but intending to sell her to a belligerent, does not\ndiffer from a m anufacturer o f arms who intends to sell them to a belligerent. There is nothing to\nprevent a neutral from allow ing his subjects to sell armed vessels, and to deliver them to\nbelligerents, either in a neutral port o r in a belligerent port.\n\n*\n\n*\n\n*\n\nOn the other hand, if a subject o f a neutral builds arm ed ships to the order o f a belligerent, he\nprepares the m eans o f naval operations, since the ships, on sailing outside the neutral territorial\nwaters and taking in a crew and am m unition, can at once com m it hostilities. Thus, through the\ncarrying out o f the order o f the belligerent, the neutral territory has been made the base o f naval\noperations; and as the duty o f im partiality includes an obligation to prevent either belligerent\nContinued\n\n217\n\n\x0cA more recent statement by an Attorney General construing the Neutrality\nAct is found in a press conference held on April 20,1961, by Attorney General\nKennedy, following the Bay of Pigs invasion. Although Attorney General\nKennedy did not formally opine on this matter, the views presented in this press\nconference have been widely quoted as the views of the Kennedy Administra\xc2\xad\ntion on the Act:\nF irst. . . the neutrality laws are among the oldest laws in our\nstatute books. Most of the provisions date from the first years of\nour independence and, with only minor revisions, have contin\xc2\xad\nued in force since the 18th Century. Clearly they were not\ndesigned for the kind of situation which exists in the world\ntoday.\nSecond, the neutrality laws were never designed to prevent\nindividuals from leaving the United States to fight for a cause in\nwhich they believed. There is nothing in the neutrality laws\nwhich prevents refugees from Cuba from returning to that coun\xc2\xad\ntry to engage in the fight for freedom. Nor is an individual\nprohibited from departing from the United States, with others of\nlike belief, to join still others in a second country for an expedi\xc2\xad\ntion against a third country.\nThere is nothing criminal in an individual leaving the United\nStates with the intent of joining an insurgent group. There is\nnothing criminal in his urging others to do so. There is nothing\ncriminal in several persons departing at the same time. What the\nlaw does prohibit is a group organized as a military expedition\nfrom departing from the United States to take action as a mili\xc2\xad\ntary force against a nation with whom the United States is at\npeace.\nThere are also provisions of early origin forbidding foreign\nstates to recruit mercenaries in this country. It is doubtful whether\nany of the activities presently engaged in by Cuban patriots\nwould fall within the provisions of this law.\n11 M. Whiteman, Digest o f International Law 231 (1968). See also Lobel, The\nRise and Decline o f the Neutrality Act: Sovereignty and Congressional War\nPowers in United States Foreign Policy, 24 Harv. Int. L.J. 1,4 & n.16 (1983);\nN.Y. Times, Apr. 21,1961, \xc2\xa7 1 at 6.\n\n10 ( . . . continued)\nfrom m aking neutral territory th e base o f m ilitary o r naval operations, a neutral violates his\nneutrality by not preventing h is subjects from carrying out an order of a belligerent for the\nbuilding and fitting out of m en o f war. This distinction, although o f course logically correct, is\nhair splitting. B ut as, according to the present law, neutral States need not prevent their subjects\n\n218\n\n\x0cConclusion\nWe have attempted to provide a broad overview of the Neutrality Act, its\nvarious provisions, their scope, and their application, by courts and Attorneys\nGeneral throughout their history since their original enactment in 1794. To\xc2\xad\ngether with our recent memorandum to you, this memorandum should provide\nyou with a survey of the most prominent authorities relative to these provisions\nof criminal law. However, herein we have not attempted to provide a definitive\nanalysis of the applicability of these provisions to any specific set of facts, and\nthis memorandum should not be construed as such.\nTheodore\n\nB.\n\nO lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n219\n\n\x0c'