b'Application of the Neutrality Act to\nOfficial Government Activities\nSection 5 o f the Neutrality Act, 18 U.S.C. \xc2\xa7 960, forbids preparation for, or participation in,\nm ilitary expeditions against a foreign state w ith which the United States is at peace. This\nprovision is intended solely to prohibit persons acting in a private capacity from taking\nactions that m ight interfere with the foreign policy and relations of the United States. It does\nnot proscribe activities conducted by Governm ent officials acting within the course and scope\no f their duties as officers of the United States.\n\nApril 25, 1984\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nAttorney G eneral\n\nThis memorandum is written in connection with recent allegations1 that\nseveral United States Government officials may have violated \xc2\xa7 5 of the\nNeutrality Act, 18 U.S.C. \xc2\xa7 960, which forbids the planning of, provision for,\nor participation in \xe2\x80\x9cany military or naval expedition or enterprise to be carried\non from [the United States] against the territory or dominion of any foreign\nprince or state . . . with whom the United States is at peace.\xe2\x80\x9d To assist you in the\ndischarge of your responsibility under Title VI of the Ethics in Government\nAct, 28 U.S.C. \xc2\xa7\xc2\xa7 591-598, to determine preliminarily whether such charges,\nif true, might constitute a crime, we have undertaken a thorough examination of\nthe Neutrality Act (Act), with particular attention toward \xc2\xa7 5, its legislative\nhistory, the historical circumstances surrounding its enactment, existing judi\xc2\xad\ncial precedent regarding the Act, and the history of Executive and Legislative\nrelations with respect to the Act\xe2\x80\x99s application. Based upon these consider\xc2\xad\nations, we have concluded that the Act does not proscribe activities conducted\nby Government officials acting within the course and scope of their duties as\nofficers of the United States but, rather, was intended solely to prohibit actions\nby individuals acting in a private capacity that might interfere with the foreign\npolicy and relations of the United States.\n1 T he m ost recent assertions in this re g a rd that have b een brought to o u r attention are those made in a letter\nto you, d ated A pril 9, 1984, from a m ajority o f the D em ocratic Party members o f the Com m ittee on the\nJudiciary o f the H ouse o f Representatives, taking the position that several G overnm ent officials may have\nviolated th e A ct by participating in a p lan \xe2\x80\x9cto covertly aid , fund and participate in a military expedition and\nenterprise utilizing N icaraguan exiles fo r the purpose o f attacking and overthrow ing the governm ent of\nN icaragua, a country w ith which the U n ited States is officially at peace."\n\n58\n\n\x0cI. Evolution of the Neutrality Act\nA. President W ashington\xe2\x80\x99s Proclamation o f 1793\n\nThe Neutrality Act was enacted in 1794 following President Washington\xe2\x80\x99s\nProclamation of April 22, 1793, regarding the war between France and Great\nBritain, requiring the citizens of the United States \xe2\x80\x9cwith sincerity and good\nfaith [to] adopt and pursue a conduct friendly and impartial toward the belliger\xc2\xad\nent powers,\xe2\x80\x9d warning citizens \xe2\x80\x9cto avoid all acts and proceedings whatsoever,\nwhich may in any manner tend to contravene such disposition,\xe2\x80\x9d and threatening\nto prosecute those \xe2\x80\x9cwho shall, within the cognizance of the courts of the United\nStates, violate the law of nations with respect to the powers at war, or any of\nthem.\xe2\x80\x9d2 The President viewed the Proclamation as a necessary measure toward\nrestraining the natural sympathy and enthusiastic support of the American\npeople for the French cause, bom of France\xe2\x80\x99s generous aid to the colonists\nduring the American Revolution and the Americans\xe2\x80\x99 strong identification with\nthe goals of the French Revolution. See generally C. Fenwick, The Neutrality\nLaws o f the United States 16-23 (1913) (Fenwick).3 Writing nearly one2 The Proclam ation provided:\nW hereas it appears that a state o f w ar exists betw een Austria, Prussia, Sardinia, G reat B ritain,\nand the U nited N etherlands, on the one part, and France on the other; and the duty and interest o f\nthe U nited States require, that they should with sincerity and good faith adopt and pursue a\nconduct friendly and impartial tow ards the belligerent powers:\nI have therefore thought fit by these presents, to declare the disposition o f the U nited States to\nobserve the conduct aforesaid tow ards those pow ers respectively; and to exhort and w arn the\ncitizens o f the U nited States carefully to avoid all acts and proceedings w hatsoever, which may in\nany m anner tend to contravene such disposition.\nAnd I do hereby also make known, that w hosoever o f the citizens o f the U nited States shall\nrender him self liable to punishm ent o r forfeiture under the law o f nations, by com m itting, aiding,\nor abetting hostilities against any o f the said pow ers, o r by carrying to any o f them, those articles\nwhich are deem ed contraband by the m odem usage o f nations, will not receive the protection of\nthe United States, against such punishm ent o r forfeiture; and further, that 1 have given instruc\xc2\xad\ntions to those officers, to whom it belongs, to cause prosecutions to be instituted against all\npersons, who shall, w ithin the cognizance o f the C ourts o f the U nited States, violate the law of\nnations, with respect to the powers at w ar, o r any o f them.\n32 Writings o f George Washington 430 (J. Fitzpatrick ed 1939). See also 1 Messages and Papers o f the\nPresidents 156 (J. Richardson ed. 1896).\n3 President W ashington wrote to Secretary o f State Jefferson on A pril 12, 1793:\nYour letter o f the 7 instant was brought to me by the last post. W ar having actually com m enced\nbetw een France and G reat Britain, it behoves the G overnm ent o f this C ountry to use every m eans\nin its pow er to prevent the citizens thereof from em broiling us w ith either o f those pow ers, by\nendeavouring to m aintain a strict neutrality. I therefore require that you w ill give the subject\nmature consideration, that such m easures as shall be deem ed m ost likely to effect this desirable\npurpose may be adopted w ithout delay; for 1 have understood that vessels are already designated\nprivateers, and are preparing accordingly.\nSuch other m easures as may be necessary for us to pursue against events which it may not be in\nour pow er to avoid or controul, you w ill also think of, and lay them before me at my arrival in\nPhiladelphia, fo r w hich place I shall set out Tom orrow ....\nOn the same date, W ashington wrote to Secretary o f the Treasury Hamilton:\nH ostilities having com m enced betw een France and England, it is incum bent on the G overn\xc2\xad\nment o f the U nited States to prevent, as far as in it lies, all interferences o f our C itizens in them ;\nC ontinued\n\n59\n\n\x0chundred years later, a committee of Congress described the historical circum\xc2\xad\nstances immediately preceding President Washington\xe2\x80\x99s Proclamation and the\npassage of the Act as follows:\nThe enthusiasm of republicans for France, and their hostility to\nEngland, was not much less marked in America than in France.\nIt brought public opinion to the verge of revolt against the\npeaceful policy of Washington. Accountable to the people for its\nresistance to popular clamor and the consequences of its timid\nsubmission to the demands of England, whose arrogant preten\xc2\xad\nsions intensified the popular friendship for France, the adminis\xc2\xad\ntration was threatened with formidable resistance, if not the\noverthrow of its policy.\nH.R. Rep. No. 100, 39th Cong., 1st Sess. 2 (1866).\nIn addition, the United States and France had entered into two \xe2\x80\x9ctreaties\xe2\x80\x9d in\n1778, both of which threatened the new nation\xe2\x80\x99s posture of neutrality regarding\nthe military affairs of the European countries.4 The more serious threat was\nposed by the Treaty of Amity and Commerce, 8 Stat. 12,5 which made it lawful\nfor French ships and privateers to enter United States ports with their prizes of\nwar and unlawful for ships of other foreign nations carrying subjects or\nproperty of France as their prizes of war to enter American ports. See generally\nFenwick, supra, at 16-32.\nIn the spring of 1793, Edmund Charles Genet, French Minister to the United\nStates, arrived in this country and, pursuant to the Treaty of Amity and\nCommerce, began issuing commissions to commanders of vessels willing to\nserve France and authorizing the outfitting of privateers from American ports.\nSecretary of State Jefferson protested to the French Minister that such conduct\nwas not \xe2\x80\x9cwarranted by the usage of nations, nor by the stipulations existing\nbetween the United States and France,\xe2\x80\x9d but met with continued resistance from\nGenet that \xe2\x80\x9cno article of [the Treaties] impose[d] . . . the painful injunction of\nabandoning us in the midst of the dangers which surround us.\xe2\x80\x9d Fenwick, supra,\nat 18-19. Finally, Jefferson informed Genet that \xe2\x80\x9cafter mature consideration,\xe2\x80\x9d\nPresident Washington had concluded:\n3 (. . . continued)\nand im m ediate precautionary m easures ought, I conceive, to be taken for that purpose, as 1 have\nreason to believe (from some th in g s I have heard) that m any Vessels in different parts of the\nU nion are designated for Privateers and are preparing accordingly. The m eans to prevent it, and\nfo r the U nited States to m aintain a strict neutrality betw een the powers at war, I wish to have\nseriously thought of, that I may a s soon as I arrive at the Seat o f the Governm ent, take such steps,\ntending to these ends, as shall b e deem ed proper and effectual. W ith great esteem etc.\n32 Writings o f George Washington, supra, at 415, 416.\n4 T hese \xe2\x80\x9ctreaties\xe2\x80\x9d w ere entered into b y the colonists during the A m erican Revolution in exchange for aid\nfrom France, see 8 Stat. 6, 12, and w ere not annulled by Acts o f C ongress until 1798.\n5 T he o th er treaty w as the Treaty o f A lliance, 8 Stat. 6, regarding which there existed a serious question\nw ithin W ashington\xe2\x80\x99s C abinet as to w h eth er the U nited States w as obligated to take up arm s in France\'s\ndefense. H ow ever, because France apparently never forced a resolution o f the issue, it rem ained unresolved.\nSee Lobel, The Rise and Decline o f the Neutrality Act: Sovereignty and Congressional War Powers in United\nStates Foreign Policy, 24 Harv. Int\xe2\x80\x99l L .J. 1, 12-13 (1983).\n\n60\n\n\x0c[T]hat the arming and equipping [of] vessels in the ports of the\nUnited States, to cruise against nations with whom we are at\npeace, was incompatible with the territorial sovereignty of the\nUnited States; that it made them instrumental to the annoyance\nof those nations, and thereby tended to compromit their peace;\nand that he thought it necessary, as an evidence of good faith to\nthem, as well as a proper reparation to the sovereignty of the\ncountry, that the armed vessels of this description should depart\nfrom the ports of the United States.\n*\n\n*\n\n*\n\nAfter fully weighing again, however, all the principles and\ncircumstances of the case, the result appears still to be, that it is\nthe right of every nation to prohibit acts of sovereignty from\nbeing exercised by any other within its limits, and the duty of a\nneutral nation to prohibit such as would injure one of the war\xc2\xad\nring Powers; that the granting [of] military commissions, within\nthe United States, by any other authority than their own, is an\ninfringement on their sovereignty, and particularly so when\ngran ted to their own citizens, to lead them to commit acts\ncontrary to the duties they owe their own country[.]\n\nFenwick, supra, at 19 (quoting 1 American State Papers, Foreign Relations\n149 (emphasis added)).6\nNotwithstanding the President\xe2\x80\x99s Proclamation and the continued public rep\xc2\xad\nrimands of Minister Genet, privateers continued to be outfitted in American\nports for the service of France,7 with the individuals involved suffering few\nlegal reprisals by the United States Government. Although there were several\nprosecutions of individual citizens charged with attacking the property and\ncitizens of nations at peace with the United States, the prosecutions were\nunsuccessful, largely because there were no federal statutes defining such acts\nas crimes and legal opinion was divided on the question whether violations of\ninternational law could provide a basis for a common law federal offense. The\n6 In reporting this incident, Fenwick states that in this passage, \xe2\x80\x9cJefferson set forth in clear and simple term s\nthe pnnciples o f neutrality as understood by the President." Fenw ick, supra, at 19.\n7 H ow ever, the instructions \xe2\x80\x94 \xe2\x80\x9cdeductions from the laws o f neutrality, established and received am ong\nnations\xe2\x80\x9d \xe2\x80\x94 issued by Secretary H am ilton on August 7, 1793 to custom s collectors in m ajor ports appears to\nhave had some effect in decreasing the incidence o f privateering. Fenwick describes the instructions as follows:\nThe instructions called upon the collectors to be vigilant in detecting any acts in violation of\nthe law s o f neutrality, and to give im m ediate notice o f such attem pts to the proper authorities No\nasylum was to be given to vessels, nor to their prizes, o f either o f the pow ers at war w ith France,\nin accordance w ith the Treaty o f 1778 w ith France, nor to armed vessels which had been\noriginally fitted out in any port o f the U nited States by either o f the parties at war. The purchase\no f contraband articles, as m erchandise, was to be free to both parties. The names o f citizens o f the\nU nited States in the service o f either o f the parties w ere to be notified to the local state governor\nV essels contravening these regulations were to be refused clearance. V essels, except those in the\nim m ediate service o f foreign governm ents, w ere to be exam ined as to their military equipm ent\nupon entering and upon leaving port.\nFenwick, supra, at 2 2 -2 3 .\n\n61\n\n\x0cmost celebrated of these cases is H enfield\xe2\x80\x99s Case, 11 F. Cas. 1099 (C.C.D. Pa.\n1793) (No. 6360), in which Henfield was prosecuted at common law for\nenlisting on the French privateer, \xe2\x80\x9cCitizen Genet,\xe2\x80\x9d in violation of the treaties of\nthe United States and the law o f nations. Although, upon the urging of Attorney\nGeneral Randolph, the court recognized such actions as violations of the\nsovereignty of the United States in its charge to the jury, Henfield nevertheless\nwas acquitted. See generally Lobel, The R ise and Decline o f the Neutrality Act,\nsupra, at 13-14; Fenwick, supra, at 24. Regarding this case, Jefferson wrote in\na letter to James Monroe:\nThe Atty General gave an official opinion that the act was\nagainst law, & coincided with all our private opinions; & the\nlawyers of this State, New York & Maryland, who were applied\nto, were unanimously of the same opinion. Lately mr. Rawle,\nAtty of the U.S. in this district, on a conference with the District\njudge, Peters, supposes the law more doubtful. New acts, there\xc2\xad\nfore, of the same kind, are left unprosecuted till the question is\ndetermined by the proper court, which will be during the present\nw eek.. . . I confess I think myself that the case is punishable, &\nthat, if found otherwise, Congress ought to make it so, or we\nshall be made parties in every maritime war in which the pirati\xc2\xad\ncal spirit of the banditti in our ports can engage.\n6 W ritings o f Thomas Jefferson 347-48 (P. Ford ed. 1895) (emphasis added).\nIn addition, in the summer of 1793, United States officials became aware of\nMinister Genet\xe2\x80\x99s efforts to organize armies to invade New Orleans and the\nFloridas, then in the possession of Spain, an ally of Great Britain. As a result of\nthese and other similar events, and the apparent ineffectiveness of existing\nlegal mechanisms to restrain such activities, President Washington sought to\nenact into legislation the principles of neutrality set forth in his Proclamation.\nB. The N eutrality A ct of 1794\n\nIn his annual address to Congress in December 1793, President Washington\narticulated his views regarding the role of the principle of neutrality in sover\xc2\xad\neign states and called upon Congress to implement such principles through\nlegislation. President Washington proclaimed:\nIn this posture of affairs, both new and delicate, I resolved to\nadopt general rules, which should conform to the treaties and\nassert the privileges o f the United States. These were reduced\ninto a system, which will be communicated to you.\n*\n*\n*\nIt rests with the wisdom of Congress to correct, improve, or\nenforce this plan of procedure; and it will probably be found\nexpedient to extend the legal code and the jurisdiction of the\n62\n\n\x0cCourts of the United States to many cases which, though dependent\non principles already recognised, demand some further provisions.\nWhere individuals shall, within the United States, array them\xc2\xad\nselves in hostility against any of the Powers at war[;] or enter\nupon military expeditions or enterprises within the jurisdiction\nof the United States; or usurp and exercise Judicial authority\nwithin the United States; or where the penalties on violations of\nthe law of nations may have been indistinctly marked, or are\ninadequate \xe2\x80\x94 these offences cannot receive too early and close\nan attention, and require prompt and decisive remedies.\n4 Annals o f Congress 11 (1793).\nThe Neutrality Act was enacted on June 5, 1794. 1 Stat. 381. Although\noriginally enacted as a temporary measure,8 the Act was continued in force by\nthe Act of Mar. 2, 1797, 1 Stat. 497, and finally made permanent by the Act of\nApr. 24, 1800, 2 Stat. 54. Through several amendments9 and the re-enactment\nof its provisions in the revision and codification of Title 18 in 1909, 35 Stat.\n1088, 1089, and again in 1948, 62 Stat. 683, 744, the Act today remains\nsubstantially similar to that which was first enacted in 1794.\nSection 1 of the Act, 18 U.S.C. \xc2\xa7 958, provides:\nAny citizen of the United States who, within the jurisdiction\nthereof, accepts and exercises a commission to serve a foreign\nprince, state, colony, district, or people, in war, against any\nprince, state, colony, district, or people, with whom the United\nStates is at peace, shall be fined not more than $2,000 or impris\xc2\xad\noned not more than three years, or both.\nSection 2, 18 U.S.C. \xc2\xa7 959, provides in pertinent part:10\n(a) Whoever, within the United States, enlists or enters him\xc2\xad\nself, or hires or retains another to enlist or enter himself, or to go\nbeyond the jurisdiction of the United States with intent to be\nenlisted or entered in the service of any foreign prince, state,\ncolony, district, or people as a soldier or as a marine or seaman\non board any vessel of war, letter of marque, or privateer, shall\n8 That the A ct\'s operation was originally lim ited to a term o f tw o years testifies to \xe2\x80\x9cthe character o f the act,\nand the extent to which it cam e in conflict with the opinions o f the people, as well as the extraordinary\ninfluences under which it was enacted.\xe2\x80\x99\xe2\x80\x99 H.R. Rep. No. 100, supra, at 2.\n9 See, e.g.. Act o f Mar. 3, 1817, 3 Stat. 370; Act o f Apr. 20, 1818, 3 Stat. 447, Act o f Mar. 10, 1838, 5 Stat.\n212. Parts o f the Act were also am ended in 1917, in the \xe2\x80\x9cAct to punish acts o f interference w ith the foreign\nrelations, the neutrality, and the foreign com m erce o f the U nited States, to punish espionage, and better to\nenforce the crim inal laws o f the U nited States,\xe2\x80\x9d com m only referred to as the \xe2\x80\x9cEspionage A ct,\xe2\x80\x9d 40 Stat. 217.\n10 Subsection (b) o f \xc2\xa7 2 generally exem pts from subsection (a)\xe2\x80\x99s coverage \xe2\x80\x9ccitizens or subjects of any\ncountry engaged in w ar with a country with which the U nited States is at w ar;\xe2\x80\x9d subsection (c) generally\nexem pts from the A ct\xe2\x80\x99s coverage citizens o f the foreign nations who are \xe2\x80\x9ctransiently within the United States\n. . . [who] enlist on board any vessel o f war . . . which at the tim e o f its arrival within the U nited States was\nfitted and equipped as such.\xe2\x80\x9d\n\n63\n\n\x0cbe fined not more than $1,000 or imprisoned not more than three\nyears, or both.\nSection 3, 18 U.S.C. \xc2\xa7 962, provides in pertinent part:\nWhoever, within the United States, furnishes, fits out, arms,\nor attempts to furnish, fit out or arm, any vessel, with intent that\nsuch vessel shall be employed in the service of any foreign\nprince, or state, or of any colony, district, or people, to cruise, or\ncommit hostilities against the subjects, citizens, or property of\nany foreign prince or state, or of any colony, district, or people\nwith whom the United States is at peace; or\nWhoever issues or delivers a commission within the United\nStates for any vessel, to the intent that she may be so employed \xe2\x80\x94\nShall be fined not more than $10,000 or imprisoned not more\nthan three years, or both.\nSection 4, 18 U.S.C. \xc2\xa7 961, provides in pertinent part:\nWhoever, within the United States, increases or augments the\nforce of any ship o f war . . . which, at the time of her arrival\nwithin the United States, was a ship of war . . . in the service of\nany foreign prince or state, or of any coiony, district, or people,\nor belonging to the subjects or citizens of any such prince or\nstate, colony, district, or people, the same being at war with any\nforeign prince or state, or of any colony, district, or people, with\nwhom the United States is at peace, by adding to the number of\nthe guns of such v essel. . . or by adding thereto any equipment\nsolely applicable to war, shall be fined not more than $1,000 or\nimprisoned not more than one year, or both.\nSection 5, 18 U.S.C. \xc2\xa7 960 provides:\nWhoever, within the United States, knowingly begins or sets\non foot or provides or prepares a means for or furnishes the\nmoney for, or takes part in, any military or naval expedition or\nenterprise to be carried on from thence against the territory or\ndominion of any foreign prince or state, or of any colony,\ndistrict, or people with whom the United States is at peace, shall\nbe fined not more than $3,000 or imprisoned not more than three\nyears, or both.\nAlthough the debates in Congress regarding these provisions focused largely\non the immediate problems posed by the 1778 \xe2\x80\x9ctreaties\xe2\x80\x9d with France and how\nthey would be affected by the anti-privateering and confiscation of goods\nprovisions of the Act,11 the Act\xe2\x80\x99s legislative history nevertheless reveals other\n11 Section 3 o f the Act provided fo r the confiscation o f goods on arm ed vessels, outfitted within the U nited\nStates, that com m itted hostile acts ag ain st territories w ith which the U nited States was at peace.\n\n64\n\n\x0ckey issues that were addressed by the Act\xe2\x80\x99s passage. Several commentators\nhave suggested, and the speeches of President Washington, Secretary Jefferson,\nand various Senators and Representatives support the view, that the United\nStates, in the early stages of its development as a republic, embraced the\ngeneral principle of neutrality as a means, in view of its military weakness and\ngeographic isolation, of advancing its commercial interests by avoiding in\xc2\xad\nvolvement in European wars and protecting its independence and sovereignty\nfrom violation by foreign states, as well as of consolidating its federal powers\nand strengthening the sovereignty of the federal government over its individual\ncitizens. See generally Fenwick, supra; Lobel, The Rise and Decline o f the\nNeutrality Act, supra, and sources cited therein. See also United States v.\nO\'Sullivan, 27 F. Cas. 367,373-75 (S.D.N.Y. 1851) (No. 15974) (providing an\naccount of the Act\xe2\x80\x99s passage).\nIn 1866, the House Committee on Foreign Affairs, which was engaged in an\nextensive review of the Act\xe2\x80\x99s history, described the state of the new nation after\n1783 and the historical circumstances that compelled the Act\xe2\x80\x99s passage:\nThe independence of the American colonies was acknowl\xc2\xad\nedged by Great Britain in 1783. The participation of the colonies\nin the Indian and French wars, and the severe and long-contin\xc2\xad\nued struggle of the Revolution made it necessary that the new\ngovernment under the Constitution should husband its resources,\nand, if possible, avoid all complications with foreign nations.\nThe foreign policy of the administration of Washington \xe2\x80\x94 as\nwise and necessary as it was successful \xe2\x80\x94 was based upon this\nidea. It is now conceded that the safety of the republic imperi\xc2\xad\nously demanded this policy.\nH.R. Rep. No. 100, supra, at 1. In his Farewell Address to the Nation on\nSeptember 19, 1796, President Washington reiterated these themes:\nThe Great rule of conduct for us, in regard to foreign Nations\nis in extending our commercial relations to have with them as\nlittle political connection as possible. So far as we have already\nformed engagements let them be fulfilled, with perfect good\nfaith. Here let us stop.\nEurope has a set of primary interests, which to us have none,\nor a very remote relation. Hence she must be engaged in fre\xc2\xad\nquent controversies, the causes of which are essentially foreign\nto our concerns. Hence therefore it must be unwise in us to\nimplicate ourselves, by artificial ties, in the ordinary vicissi\xc2\xad\ntudes of her politics, or the ordinary combinations and collisions\nof her friendships, or enmities;\nOur detached and distant situation invites and enables us to\npursue a different course. If we remain one People, under an\n65\n\n\x0cefficient government, the period is not far off, when we may\ndefy material injury from external annoyance; when we may\ntake such an attitude as will cause the neutrality we may at any\ntime resolve upon to be scrupulously respected; when belligerent\nnations, under the impossibility of making acquisitions upon us, will\nnot lighdy hazard giving us provocation; when we may choose\npeace or war, as our interest guided by our justice shall Counsel.\n35 W ritings o f G eorge Washington, supra, at 233-34.\nCritical to the effort to remain detached from foreign entanglements was\nestablishing to foreign powers and to the citizens of the United States that only\nthe G overnm ent was authorized to articulate United States foreign policy.\nUnauthorized acts by private individuals in this regard were not to be recog\xc2\xad\nnized by foreign nations, and, indeed, were to be punished by the United States,\n\xe2\x80\x9cbecause no citizen should be free to commit his country to war.\xe2\x80\x9d 6 Writings o f\nThomas Jefferson, supra, at 347. In reviewing the history and purposes of the\nAct, the United States District Court for the Southern District of New York, in\na landmark decision in 1851, analogized the neutrality obligations that the\ndrafters sought to impose on individuals through the enactment of civil penal\nlaws to those imposed by the law of nations on sovereign governments:\nAs the representative of the people, \xe2\x80\x94 their agent, delegated\nby the people of the United States, \xe2\x80\x94 the government adopted\nan administrative and legislative policy embracing both its di\xc2\xad\nrect relationship to foreign states, and the coordinate obligations\nof the citizens individually to uphold and effectuate that rela\xc2\xad\ntionship. What the government might not do in its public capac\xc2\xad\nity, without an infraction of the law of nations and subjecting\nitself to reprisals and war, it claimed the people should be\nprohibited doing individually___It is most manifest, that, at the\nearliest day the subject was acted on, the United States govern\xc2\xad\nm ent intended to make the person al duties o f citizens co-equal\nwith those o f the nation, in respect to acts of hostility against other\nstates . . . [and] to compel the citizens to conform in all respects to\nthe principles o f the law o f nations, recognized and observed on the\n\npart of the government, in regard to friendly powers.\nU nited States v. O \xe2\x80\x99Sullivan, 27 F. Cas. at 374, 375 (emphasis added). See also\nFenwick, supra, at 1-14.\nDuring the debate on the Neutrality Act, Representative Ames spoke of the\nweakness of the United States\xe2\x80\x99 general authority and of the threat of \xe2\x80\x9cbe[ing]\ndriven into a war by the licentious behavior of some individuals.\xe2\x80\x9d 4 Annals o f\nCongress 743 (1794). Representative Wadsworth expressed a similar view:\n\nIf the Executive cannot hinder these people from going to sea in\nthis way, we must be forced into hostilities immediately. We\nsend an Ambassador to England to secure peace; and we follow\n66\n\n\x0cup this application by sending out privateers. Will any nation, in\nsuch a case, believe that our desire of peace is sincere? Is the\nseizing of their ships a sign of it?\nId. at 744. Representative Murray reiterated the importance of securing govern\xc2\xad\nmental control over the power of individuals to affect foreign policy:\n\n[W]ere people only meeting to form the very first elements of a\ncivil compact, they would have a right to say to each member of\ntheir society, that he should not enlist in any foreign service, to\ninvade a nation perhaps friendly to them, without their consent.\nTo countenance recruiting for foreign service, was admitting\ninto the heart of the country an engagement against the sover\xc2\xad\neignty of the country.\nId. at 746 (emphasis added). This view was reiterated again by the court in the\nO \xe2\x80\x99Sullivan case as an underlying purpose of the Act:\n\n[T]his government . . . possesses the unquestionable power to\nprohibit.. . citizens, individually, or in association with others,\nfrom entering into engagements or measures within the Ameri\xc2\xad\ncan territory, or upon American vessels, in hostility to other\nnations, and which may compromit [sic] our peace with them. It\nwould be m ost deplorable if no such controlling p o w er existed\nin this government, and if men might be allowed, under the\ninfluence o f evil, o r even good, motives, to set on fo o t warlike\nenterprises from our shores, against nations at peace with us,\nand thus, fo r private objects, sordid or criminal in themselves \xe2\x80\x94 or\nunder the impulse of fanaticism or wild delusions \xe2\x80\x94 bring upon this\ncountry, at their own discretion, the calamities o f war. The will of\n\nthe nation is expressed in this respect, by the statute of [1794],\nUnited States v. O \xe2\x80\x99Sullivan, 27 F. Cas. at 383 (emphasis added). Thus, the\nNeutrality Act, by outlawing private warfare, would ensure that the nation\xe2\x80\x99s\nforeign policy was made by the President, with appropriate participation by\nCongress, working through the political process in fulfillment of their constitu\xc2\xad\ntional roles, and not by the unilateral and unrestricted acts of private individuals.12\n12 In arguing that the Act was intended to proscribe actions by the G overnm ent as w ell as those o f\nindividuals acting in their private capacities, some com m entators have pointed to the English predecessor to\n\xc2\xa7 2 o f the Act, w hich excepted from the English a c t\xe2\x80\x99s prohibitions those enlistm ents that w ere authorized by\nthe Queen, and the failure o f the U nited States Congress to make explicit sim ilar exceptions in its Act. See,\ne.g., Lobel, The Rise and Decline o f the Neutrality Act, supra, at 31-33. H ow ever, it was clear to early\nscholars that the d rafters\xe2\x80\x99 use o f the term \xe2\x80\x9cany person\xe2\x80\x9d in \xc2\xa7 2 was not intended to bar enlistm ents duly\nauthorized by the Governm ent.\nSections 1 and 2 o f the A ct were designed to protect the nation\xe2\x80\x99s sovereignty over its territory and its\nindependence in w orld affairs by prohibiting belligerents from recruiting troops w ithin its borders \xe2\x80\x9cw ithout\nthe consent o f the sovereign,\xe2\x80\x99\xe2\x80\x99 7 Op. A tt\'y Gen. 367, 368, 381 (18SS), and by prohibiting its citizens from\nengaging in private acts o f warfare, i.e., accepting and exercising com m issions in the service of nations\nagainst nations w ith which the U nited Slates was at peace, which could be interpreted erroneously by foreign\nC ontinued\n\n67\n\n\x0cIn calling for amendments to the Act in 1803 to strengthen its provisions to\nrespond more effectively to the involvement of American citizens in the South\nAmerican colonial wars,13 President Jefferson re-emphasized the Act\xe2\x80\x99s pur\xc2\xad\npose to prevent individual citizens from embarking on private expeditions in\ncontravention of the Government\xe2\x80\x99s foreign policy goals:\n[L]et it be our endeavor, as it is our interest and desire, to\ncultivate the friendship of the belligerent nations by every act of\njustice and of innocent kindness; to receive their armed vessels\nwith hospitality from the distresses of the sea, but to administer\nthe means of annoyance to none;. . . to restrain our citizens from\nem barking individually in a w ar in which their country takes no\np a rt; to punish severely those persons, citizen or alien, who shall\nusurp the cover of our flag for vessels not entitled to it, infecting\nthereby with suspicion those o f real Americans and committing us\ninto controversies for the redress o f wrongs not our own\\_.\\\n12 (. . . continued)\npow ers as acts o f the U nited States G overnm ent. See generally W arren, A ssistant A ttorney G eneral, \xe2\x80\x98\xe2\x80\x98Memo\xc2\xad\nrandum o f L aw on the C onstruction o f S ectio n 10 o f the Federal Code [currently 18 U.S.C. \xc2\xa7 959]\xe2\x80\x9d (1915). In\nhis m em orandum . A ssistant Attorney G en eral W arren traced the developm ent o f \xc2\xa7 95 9 \xe2\x80\x99s predecessors from\nth eir origins in the B ritish Act of 13 A nne, ch. 10 (1713), which prohibited the \xe2\x80\x9clisting of Her M ajesties\nsubjects to serve as soldiers without H e r M ajesties license,\xe2\x80\x9d to 1915. In discussing the evolution o f this\nprohibition in the U nited States, W arren noted that although the A m erican C ongress had extended the Act\nbeyond th e p rohibitions contained in the English act to p rohibit \xe2\x80\x9c any person" w ithin the United States from\nenlisting in foreign service, and thus m ade \xe2\x80\x9cunlaw ful the recruiting o r enlisting o f all foreign citizens within\nthis c o u n try ,\xe2\x80\x9d C ongress implicitly retained the A ct\xe2\x80\x99s prohibition against acts to which the Governm ent had\nnot consented. Id. at 3 -1 1 . See also 4 Annals o f Congress 746 (1794); 7 Op. A tt\xe2\x80\x99y Gen. at 381 (\xe2\x80\x9cThe main\nconsid eratio n is the sovereign right o f th e U nited States to exercise com plete and exclusive jurisdiction\nw ithin their ow n territory; to remain stric tly neutral, if they please, in the face o f the w arring nations of\nE u ro p e . . . . A ll w hich it concerns a foreign governm ent to know is w hether we, as a government, permit such\nenlistm en ts.\xe2\x80\x9d ) (em phasis added)\n13 The follow ing account o f the im pact on the A m erican public o f the revolutions by Spanish colonists in\nthe W estern H em isphere d u n n g the first tw o decades o f the 19th century provides valuable insight into the\ntensions betw een the collective individual wills o f the American people and the federal governm ent as a\nsovereign entity, and the necessity for vigorous enforcem ent o f U nited States foreign policy o f neutrality\nagainst those individuals w ho would v io late it.\nThe independence o f the Spanish republics w as hailed by the people of this country as the most\nauspicious event o f the age. No governm ent in Europe except that of Spain had resisted the\nfreedom o f the Spanish provinces b y force. B ut all the nations o f Europe in alliance with Spain\nm aintained h e r right to the governm ent o f the colonies. G reat B ritain had been invited by Spain,\nin conjunction w ith the European alliance, to m ediate betw een her and the colonies, upon the\nbasis o f th eir continued submission to her authority, with certain am eliorations as to commerce\nand the appointm ent o f officers. T h e United States, w hose co- operation was solicited by Great\nB ritain, declined to en ter into any plan o f pacification, except upon the basis o f their indepen\xc2\xad\ndence. The recognition o f their independence w as deferred fo r several years in deference to the\nauthority o f the H oly Alliance. S p a m declared that such recognition would be regarded by her as\nan act o f h ostility. T heir independence was recognized in 1822, after a contest o f tw elve years.\nThe sym pathy o f th e American p eople for the Spanish patriots w as sincere and universal, and\nth eir ho stility to the government a n d institutions o f Spain was equally strong. The proxim ity of\nthe Spanish provinces to our ow n country, and their inability on account o f their want o f vesselsof-w ar, to cope w ith Spain upon th e sea, rendered it difficult to prevent our citizens from giving\nthem aid in their struggle for lib erty . It w as still m ore difficult to allay the suspicions o f the\nEuropean governm ents o f our com plication w ith the revolutionists.\nH.R. R ep. No. 100, supra, at 3.\n\n68\n\n\x0c1 M essages and Papers o f the Presidents, supra, at 361 (emphasis added). In\nreviewing the amendments proposed, and the proclamations issued, by Presi\xc2\xad\ndents Jefferson and Madison during the colonial rebellions against Spain, the\nHouse Committee on Foreign Affairs in 1866 reported:\nIt is impossible to suppose that provisions so repressive upon\nAmerican commerce, so hostile to the cause of liberty in the\ncolonies, and so strongly in favor of a government whose prin\xc2\xad\nciples were so repugnant to the people as those of Spain, were\nvoluntarily adopted. They had their origin in the interests of\nEuropean governments hostile to the cause of the colonies. But\nit was not this consideration alone that led to their permanent\nenactment. The established policy of the government was that of\npeace with all nations. To maintain this policy it waived, both at\nhome and abroad, interests to which, under other circumstances,\nit would have resolutely adhered. The declarations of Washing\xc2\xad\nton upon this subject are too familiar to require repetition. They\nwere accepted by a ll his successors.\n\nH.R. Rep. No. 100, supra, at 4 (emphasis added). See generally Fenwick,\nsupra, at 31\xe2\x80\x9441.\n\nThis theme has been sounded again and again by Presidents throughout the\nhistory of our Nation. President Van Buren, in 1838, admonished American\ncitizens against arming themselves in support of the Canadian revolt against\nGreat Britain, and warned that \xe2\x80\x9cany persons who shall compromit [sic] the\nneutrality of this Government by interfering in an unlawful manner with the\naffairs of the neighboring British Provinces will render themselves liable to\narrest and punishment under the laws of the United States, which will be rigidly\nenforced.\xe2\x80\x9d 3 M essages and Papers o f the President, supra, at 481.\nLikewise, Presidents Tyler and Fillmore issued proclamations in 1849 and\n1851, respectively, warning against hostile expeditions into Cuba and Mexico;\nin 1854 and again in 1858 Presidents Pierce and Buchanan warned against\nindividual involvement in support of belligerent factions in Nicaragua; in 1870\nPresident Grant warned against American participation in the Cuban revolution\nagainst Spain; and in 1912 President Taft issued a proclamation warning Americans\nagainst assisting Mexican insurgents. See generally Fenwick, supra, at 41-48.\nThe drafters of the Neutrality Act did not define the phrase \xe2\x80\x9cat peace\xe2\x80\x9d as it is\nused in the Act. Indeed, it does not appear that the issue was the subject of\ndebate. However, given the underlying goals of the statute, it is reasonable to\nconclude that the phrase \xe2\x80\x9cat peace\xe2\x80\x9d describes the state of affairs in which there\nis an absence of a congressionally declared war. In a letter to Gouvemeur\nMorris, the United States Minister to France, in 1793, Jefferson wrote:\nIf one citizen has a right to go to war of his own authority, every\ncitizen has the same. If every citizen has that right, then the\nnation (which is composed of all it\xe2\x80\x99s [sic] citizens) has a right to\n69\n\n\x0cgo to war, by the authority of it\xe2\x80\x99s individual citizens. But this is\nnot true either on the general principles of society, or by our\nConstitution, which g iv e s that p o w er to Congress alone, & not\nto the citizens individually.\n\n6 W ritings o f Thomas Jefferson, supra, at 371, 381 (emphasis added). Yet,\nduring President Jefferson\xe2\x80\x99s administration, as well as those of Presidents\nfollowing him during the early years of the 19th century, Presidents repeatedly\nauthorized military expeditions into territories against which Congress had not\ndeclared war, as well as the arming of vessels to be used against nations against\nwhich Congress had not declared war, with no indication that those Presidents,\nor the Congresses that were sitting at the time, understood such missions to\nviolate the Neutrality Act.\nFor example, in 1801, President Jefferson dispatched naval forces to Tripoli,\nafter the Pasha of Tripoli increased his demands for tribute to the Barbary\npirates and declared war upon the United States. The United States naval action\nin the Mediterranean extended over a five-year period, during which Lieuten\xc2\xad\nant Decatur destroyed the frigate \xe2\x80\x9cPhiladelphia,\xe2\x80\x9d which had been captured and\nconverted by the Tripolitans. In 1806, after issuing a proclamation declaring\nthat information had been received of preparations for an expedition against the\ndominion of Spain and warning all persons against taking any part in it,14\nPresident Jefferson ordered Captain Zebulon Pike and his platoon to invade\nSpanish Territory at the headwaters of the Rio Grande on a secret mission. In\n1810, President Madison ordered the Governor of Louisiana to occupy dis\xc2\xad\nputed territory in West Florida, east of the Mississippi, with troops;15 in 1813\n14 See Fenw ick, supra, at 33.\n15 A ccording to A braham D. Sofaer\xe2\x80\x99s account o f the expeditions ordered by President M adison into the\nF loridas and the northern coast of South A m erica in War, Foreign Affairs and Constitutional Power: The\nOrigins 296, 300, 303 (1976):\nM adison w rote Jefferson that the crisis in W est Florida presented \xe2\x80\x9csenous questions, as to the\nauthority o f the Executive, and th e adequacy o f the existing law s o f the U.S. for territorial\nadm inistration.*\xe2\x80\x99 He expressed the fear that acting before C ongress had convened would subject\nan executive o rd er \xe2\x80\x9cto the charge o f being prem ature and disrespectful, if not o f being illegal.\xe2\x80\x9d\nN o response from Jefferson has b een found; but, w hatever Jefferson\xe2\x80\x99s view, M adison decided to\nproceed unilaterally and vigorously . . . [without congressional approval].\nA fter P resident M adison presented C ongress w ith the fa it accompli, in the ensuing debate, Sofaer w rites that\nSenator C lay persuaded his colleagues w ith the following rem arks:\nThe p resident has not, therefore, vio lated the C onstitution, and usurped the w ar-m aking power,\nbut he w ould have violated that provision which requires him to see that the law s are faithfully\nexecuted, if he had longer forborne to act . . . . H ad the President failed to exercise the\ndiscretionary pow er placed in him , . . . he would have been crim inally inattentive to the dearest\ninterests o f this country.\nSofaer then concludes:\nO ne can fairly state th at Madison acted w ith far m ore independence and vigor in W est Florida\nthan h is e arlier conception of p residential pow er w ould have allow ed. He plotted in secret, used\nagents and troops, threatened force, and eventually proclaim ed and effectuated the occupation o f\nan area ruled by Spain. He did these things w ithout calling back C ongress, and kept his\nproclam ation secret until it was safely im plem ented. [However,] his actions . . . were largely\nconsistent with the view of presidential power advocated by Hamilton and most Federalists . . . .\nCongress had . . . provided troops, and most early Federalists would have agreed that the\n\nPresident had discretion to use the troops in executing any o f his constitutional responsibilities.\n(E m phasis added.)\n\n70\n\n\x0cPresident Madison ordered United States Marines into Spanish Territory, and\nin 1816-17, on two occasions, he ordered United States forces into Spanish\nFlorida, during the \xe2\x80\x9cSeminole Wars.\xe2\x80\x9d In 1817, President Monroe sent United\nStates forces to Amelia Island, in the Spanish Territory, to expel smugglers and\nprivateers.\nNotwithstanding the many Presidential Proclamations against American\ninvolvement in the colonial rebellions against Spain during the early 19th\ncentury, there are documented no less than seven invasions by the United\nStates Armed Forces, ordered by Presidents Madison and Monroe, without a\ndeclaration of war or other prior congressional authorization, into Spanish\nTerritory. In President Jackson\xe2\x80\x99s administration there are seven such docu\xc2\xad\nmented expeditions into Haiti, the Falkland Islands, Argentina, Sumatra, and\nPeru, all nations with which the United States was at peace. Likewise, in 1837\nPresident Van Buren ordered the Marines to capture a Mexican brig of war, and\nin 1839, to land in Sumatra in retaliation for attacks on American ships. In\naddition, President Pierce, after warning American citizens against involving\nthemselves in civil infractions in Nicaragua, sent United States naval forces to\nGrey town, Nicaragua in 1853 and again in 1854 to quell civil disturbances\nthere and to protect the lives of American citizens stationed there. Between\n1840 and 1900 there were nearly one-hundred documented, and, undoubtedly,\nmany more undocumented, instances of invasions by American forces, at the\nbehest of the President, of nations with which the United States was at peace.\nSee generally Emerson, War Pow ers Legislation, 74 W. Va. L. Rev. 53 app.\n(1971).\nThis legislative history, when considered together with the historical circum\xc2\xad\nstances surrounding the passage of the Act, provides overwhelming support for\nthe view that the Act was not intended to apply to military activities pursued, or\notherwise sponsored, by the Government.16 This conclusion is strengthened\neven more by the fact that Jefferson was a member of the President\xe2\x80\x99s Cabinet\nand Madison was a member of the Congress during the period in which the\n16 Although the question may be raised whether the drafters in fact distinguished betw een Presidentially\nauthorized and congressionaliy approved actions in excepting from the A ct\xe2\x80\x99s prohibitions \xe2\x80\x9cgovernm entauthorized\xe2\x80\x9d acts, the m any historical exam ples noted in this mem orandum , as well as a recognition o f the\nnecessity o f ensuring the President\xe2\x80\x99s ability to respond rapidly to changing world events, compel us to\nconclude that, short o f acts constituting a declaration o f w ar, Presidential authorization is sufficient under the\nAct. See also S ofaer, supra, at 359. Sofaer notes that many M em bers o f C ongress cam e to President M onroe\xe2\x80\x99s\ndefense during congressional debate regarding his actions in the Floridas, arguing that the President was not\nlim ited to fighting only wars formally declared war by C ongress, but could authorize m ilitary actions short o f\nwar. R epresentative A lexander Smyth o f V irginia rem arked on the floor of the House:\nIt by no m eans follow s, as some seem to suppose, that because the President cannot declare\nwar, that he can do nothing for the protection o f the nation, and the assertion o f its rights The\npow er to declare w ar is a power to announce regular war, or w ar in form, against another Power.\nBut it never was intended, by reserving this pow er to Congress, to take from the President the\npow er to do any act necessary to preserve the nation\xe2\x80\x99s rights, and which does not put the nation\ninto a state o f war w ith another Power. If C ongress, in addition to the pow er o f d eclanng war,\nassum e to them selves the power o f directing every movem ent o f the public force that m ay touch\na neutral; o r that may be made for preserving the national rights; or executing the law s and\ntreaties; they will assum e powers given to the President by the C onstitution.\n33 Annals o f Congress 678 (1819).\n\n71\n\n\x0cProclamation of 1793, which gave rise to the Neutrality Act, was issued and the\nNeutrality Act was debated and passed. Both construed the Act to apply only to\nunauthorized acts of private individuals and not to acts properly carried out\npursuant to Presidential authority, as evidenced by their numerous military\nventures, some of which are noted above, into nations with which the United\nStates was officially at peace. Such contemporaneous interpretations of laws\nby \xe2\x80\x9cthe founders of our Government and framers of our Constitution when\nactively participating in public affairs\xe2\x80\x9d has been held by the Supreme Court to\nbe near conclusive proof of the proper construction to be accorded provisions,\nparticularly when such interpretations are long acquiesced in. See, e.g., J.W.\nHampton, Jr., & Co. v. United States, 276 U.S. 394, 411-12 (1926). See also\nU nited States v. Curtiss-Wright Export Corp., 299 U.S. 304, 322-29 (1936);\nThe P ocket Veto Cases, 279 U.S. 655, 688-90 (1929); M yers v. United States,\n272 U.S. 52, 175 (1926); M artin v. H unter\xe2\x80\x99s Lessee, 14 U.S. (1 Wheat.) 304,\n351-52 (1816); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803).17\nMoreover, given the Act\xe2\x80\x99s purpose to enhance the President\xe2\x80\x99s ability to\nimplement the foreign policy goals that have been developed by him, with\nappropriate participation by Congress, it would indeed be anomalous to inter\xc2\xad\npret the Act to prohibit Government officials, acting properly within the course\nand scope of their authority, from carrying out the orders of the President, \xe2\x80\x9cthe\nsole organ of the nation in its external relations and its sole representative with\nforeign nations\xe2\x80\x9d in pursuit of those goals. See United States v. Curtiss-Wright\nE xport Corp., 299 U.S. at 319. Although the fact that the Act was not intended\nto apply to government-sponsored activity was not made explicit in the Act\xe2\x80\x99s\ntext, our view is supported by the general rule of statutory construction, which\nholds that unless affirmative reasons indicate otherwise, \xe2\x80\x9cstatutes which in\ngeneral terms divest pre-existing rights or privileges will not be applied to the\nsovereign without express words to that effect.\xe2\x80\x9d U nited States v. United Mine\nWorkers, 330 U.S. 258, 272 (1947). See also Hancock v. Train, 426 U.S. 167\n(1961). For these reasons, we believe that the purposes of the Act, as expressed\nby President Washington, his Cabinet, and the Members of Congress, together\nwith the undeniable history of government-sponsored military expeditions into\ncountries with which the United States has been at peace, and subsequent\nlegislation, compels the conclusion that the Act was not intended to proscribe\nsuch official activity.\nII. Post-Enactment History: Applications of the Act\nThe first prosecutions for violating the various provisions of the Neutrality\nAct were all brought against private individuals, for knowingly committing\nacts of hostility, unauthorized by the Government, against nations with which\nthe United States was at peace. See, e.g., United States v. Peters, 3 U.S. (3\n17 A lthough these cases refer to the construction o f constitutional provisions, the analytical principle\nannounced by the C ourt may also be used to gain insight into the proper construction of statutes.\n\n72\n\n\x0cDali.) 121 (1795); The Betty Carthcart, 17 F. Cas. 651 (D.S.C. 1795) (No.\n9742); The Nancy, 4 F. Cas. 171 (D.S.C. 1795) (No. 1898). The legal issue in\nthese early cases focused on what constituted the \xe2\x80\x9carming\xe2\x80\x9d of a vessel, the\ndistinction between \xe2\x80\x9ccommercial\xe2\x80\x9d and \xe2\x80\x9chostile\xe2\x80\x9d intent, and the authority of the\nUnited States Government to define the political bodies in whose service, and\nagainst which, the prohibited acts had been committed, and not on whether the\nAct prohibited the Government from engaging in such activity. See, e.g.,\nWiborg v. United States, 163 U.S. 632 (1896); United States v. Quincy, 31 U.S.\n(6 Pet.) 445 (1832); United States v. Guinet, 2 U.S. (2 Dali.) 321 (1795); United\nStates v. Skinner, 27 F. Cas. 1123 (C.C.D.N.Y. 1818) (No. 16309). See also 21 Op.\nAtt\xe2\x80\x99y Gen. 267 (1895); 13 Op. Att\xe2\x80\x99y Gen. 177 (1869); 3 Op. Att\xe2\x80\x99y Gen. 739 (1841),\nIn none of these early cases or opinions was there any discussion of the\napplicability of these provisions to expeditions led or authorized by govern\xc2\xad\nment officials, yet, as noted above, there has been documented during this\nperiod numerous instances of military ventures by United States forces into\ncountries with which the United States was \xe2\x80\x9cat peace,\xe2\x80\x9d and, no doubt, many\nmore instances of providing assistance to nations engaged in belligerent acts\nagainst nations with whom the United States is \xe2\x80\x9cat peace.\xe2\x80\x9d See generally\nEmerson, War Pow ers Legislation, supra. Although some commentators have\nargued that for purposes of the Neutrality Act, a distinction should be made\nbetween the use of regular United States Armed Forces, which would not be\ncovered, and the use of other government-sponsored \xe2\x80\x9cparamilitary\xe2\x80\x9d groups,\nwhich would be covered, see Lobel, The Rise and Decline o f the Neutrality Act,\nsupra, no historical evidence has been cited in support of this distinction.\nThe fact that during the years immediately following the passage of the Act,\nexpeditions into the Central and South American territories were launched by\nprivate parties, groups of individuals acting pursuant to Presidential authority,\nand United States troops, and that only the individuals involved in the first\ncategory of expeditions were prosecuted, supports the view that the Act was\nintended to apply no more to \xe2\x80\x9cparamilitary\xe2\x80\x9d troops then to the regular \xe2\x80\x9carmed\nforces\xe2\x80\x9d troops, when acting under orders of the President.\nTo be sure, courts construing the Act during the 19th century understood its\nprovisions to prohibit \xe2\x80\x9cindividuals [from] being at war whilst their government\nis at peace\xe2\x80\x9d:\nThe rule is founded on the im propriety and danger o f allowing\nindividuals to make w ar on their own authority, or, by mingling\n\nthemselves in the belligerent operations of other nations, to run\nthe hazard of counteracting the policy or embroiling the rela\xc2\xad\ntions of their own government___By these laws it is prescribed\nto the citizens of the United States, what is understood to be\ntheir duty as neutrals by the law of nations, and their duty also\nwhich they owed to the interest and honor of their own country.\nUnited States v. O \xe2\x80\x99Sullivan, 27 F. Cas. at 376 (emphasis added). See also\nUnited States v. Three Friends, 166 U.S. 1, 52, 53 (1897) (\xe2\x80\x9c[N]o nation can\n\n73\n\n\x0cpermit unauthorized acts of war within its territory in infraction of its sover\xc2\xad\neignty . . . . [T]he act [was passed]. . . in order to provide a comprehensive code\nin prevention of acts by individuals within our jurisdiction inconsistent with\nour own authority.\xe2\x80\x9d) (emphasis added).\nMoreover, courts in the nineteenth century clearly recognized the President\xe2\x80\x99s\nconstitutional preeminence in the area of foreign policy, and the discretion\nvested in him and his authorized agents by the Constitution regarding such\naffairs. Although we are aware of no court decisions from the nineteenth\ncentury ruling on challenges, brought under the Neutrality Act, to military\nactions taken by the President or his agents,18 in 1860, the circuit court for the\nSouthern District of New York, ruled that it was entirely lawful for the\nPresident to order the shelling of a town in Nicaragua in 1854 that had refused\nto redress damages incurred by American officials during a riot there.19 In\nrejecting a claim for damages against the naval commander who had carried\nout the President\xe2\x80\x99s orders, the court held:\nAs the executive head of the nation, the president is made the\nonly legitimate organ of the general government, to open and\ncarry on correspondence or negotiations with foreign nations, in\nmatters concerning the interests of the country or of its citizens.\nIt is to him, also, that the citizens abroad must look for protec\xc2\xad\ntion of person and of property, and for the faithful execution of\nthe laws existing and intended for their protection. For this\npurpose, the whole executive power of the country is placed in\nhis hands, under the constitution, and the laws passed in pursuance\nthereof; and different departments of government have been\norganized, through which this power may be most conveniently\nexecuted, whether by negotiation or by force a department of\nstate and a department of the navy.\n*\n*\n*\nI have said, that the interposition of the president abroad, for\nthe protection of the citizen, must necessarily rest in his discre\xc2\xad\ntion; and it is quite clear that, in all cases where a public act or\norder rests in executive discretion, neither he nor his authorized\nagent is personally civilly responsible for the consequences. As\nwas observed by Chief Justice Marshall, in M arbury v. M adi\xc2\xad\nson, 1 Cranch [5 U.S. 137], 165 [(1803)]: \xe2\x80\x9cBy the constitution of\n18 But see Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal, 1984), discussed below.\n19 The facts, as alleged, were:\nth at the com m unity at Greytown [N icaragua] had forcibly usurped the possession o f the place,\nand erected an independent governm ent, not recognized by the U nited States, and had perpetrated\nacts o f violence against the citizens o f the U nited States and their property, and had, on demand\nfo r redress refused it, and that th e defendant, under public orders from the president and\nsecretary, as a com m ander in the nav y , and then in com m and o f the C yane, did cause the place to\nbe bom barded and set on fire, as he law fully might fo r the cause aforesaid.\nDurand v. Hollins, 8 F. C as. I l l , 111 (1860).\n\n74\n\n\x0cthe United States, the president is invested with certain impor\xc2\xad\ntant political powers, in the exercise of which he is to use his\nown discretion, and is accountable only to his country in his\npolitical character, and to his own conscience. To aid him in the\nperformance of these duties, he is authorized to appoint certain\nofficers, who act by his authority, and in conformity with his\norders. In such cases, their acts are his acts, and whatever\nopinion may be entertained of the manner in which executive\ndiscretion may be used, still there exists, and can exist, no power\nto control that discretion.\xe2\x80\x9d\nDurand, 8 F. Cas. at 112. This incident, involving the use of American military\n\npower in Nicaragua, is one of seven documented instances of the use of\nmilitary force by the United States in Nicaragua between 1853 and 1912, none\nof which was formally authorized by Congress. See Emerson, War Pow ers\nLegislation, supra. We are not aware of any instance in which there were\ndemands or suggestions that the President\xe2\x80\x99s authorizing of such activities be\nprosecuted under the Neutrality Act.\nThroughout the nineteenth and early twentieth centuries, Presidents sent\nAmerican forces on innumerable military expeditions without prior congres\xc2\xad\nsional approval. For example, in 1853, Commodore Perry, pursuant to orders\nof President Pierce, led an expedition consisting of four men-of-war to Japan to\nnegotiate a commercial treaty; and in 1854 he returned to Japan with ten armed\nships to conclude the negotiations. In 1900, during the Boxer Rebellion,\nPresident McKinley ordered 5,000 troops to China to join the international\nmilitary force protecting foreign legations; and in 1918, President Wilson\ncommitted 8,000 American troops to the Allied effort in Russia to counter the\nBolshevik Revolution. See generally Emerson, War Powers Legislation, supra.\nIn none of these instances were allegations of violations of the Neutrality Act\nraised by either Congress or the American public.\nPrior to the court\xe2\x80\x99s recent ruling in Dellum s v. Smith, 577 F. Supp. 1449\n(N.D. Cal. 1984), discussed in Part III below, the only instance in the Act\xe2\x80\x99s\nhistory of nearly two centuries in which a court had considered the question of\nits applicability \xe2\x80\x94 in particular, the applicability of \xc2\xa7 5 (18 U.S.C. \xc2\xa7 960) \xe2\x80\x94 to\nexpeditions \xe2\x80\x9cauthorized\xe2\x80\x9d by the Government involved a claim by private\nindividuals, strenuously denied by the Government, of Government complicity\nin their mission. See United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806)\n(No. 16342). In that case, Smith defended against the charge that he had set out\non an expedition \xe2\x80\x9cagainst the dominions of Spain in South America,\xe2\x80\x9d in\nviolation of \xc2\xa7 5, id. at 1233, by arguing that the expedition \xe2\x80\x9cwas begun,\nprepared, and set on foot with the knowledge and approbation of the President\nof the United States, and . . . of the Secretary of State of the United States.\xe2\x80\x9d Id.\nat 1196. Although Administration officials disavowed any knowledge of Smith\xe2\x80\x99s\nexpedition, the court charged the jury to determine Smith\xe2\x80\x99s guilt or innocence\nwithout regard to the President\xe2\x80\x99s alleged approval or disapproval of the ven\xc2\xad\n75\n\n\x0cture, because the President \xe2\x80\x9ccannot control the statute, nor dispense with its\nexecution, and still less can he authorize a person to do what the law forbids.\xe2\x80\x9d\nId. at 1230. The Court stated:\nIf, then, the president knew and approved of the military expedi\xc2\xad\ntion set forth in the indictment against a prince with whom we\nare at peace, it would not justify the defendant in a court of law,\nnor discharge him from the binding force of the act of congress;\nbecause the president does not possess a dispensing power.\nDoes he possess the power of making war? That power is\nexclusively vested in congress.\nId.\n\nAs Smith was on a private mission, completely unrelated to the conduct of\nthe official foreign policy of the United States, the court\xe2\x80\x99s language is dicta.\nNevertheless, the Smith decision constitutes a single piece of data, in a volumi\xc2\xad\nnous body, concerning the Neutrality Act which appears to be inconsistent with\nour construction of the Act and our reading of the Act\xe2\x80\x99s legislative history. We\nbelieve that to the extent the court\xe2\x80\x99s language implies that the Act was intended\nto criminalize military endeavors directed by the President which are consis\xc2\xad\ntent with the Government\xe2\x80\x99s overall foreign policy agenda as developed by the\nPresident with appropriate participation by Congress, this decision is incor\xc2\xad\nrectly decided. Moreover, its precedential value is completely undermined by\ncontrary logic, legislative history, statutory construction principles, and his\xc2\xad\ntorical practice. As discussed at considerable length above, it seems clear that\nthe Act was intended to punish only unauthorized expeditions, undertaken by\nindividuals acting in a private capacity, which would contravene or undermine\nthe official foreign policy of the United States.20\nThe foregoing constitutes a survey of contemporaneous and other21 histori\xc2\xad\ncal constructions of the language of the Act\xe2\x80\x99s provisions. Although this history,\n20 T his conclusion is particularly reinforced in the Smith case by reference to the fact that the prosecution\nw as b rought by P resident Jefferson, \xe2\x80\x9cw ith the concurrence o f Mr. M adison, secretary o f state,\xe2\x80\x9d for com m it\xc2\xad\nting private acts, inconsistent with United States foreign policy, in violation o f the sovereignty o f the federal\ngovernm ent. See United States v. O\'Sullivan, 27 F. Cas. at 375 (discussing Smith). Clearly, as evidenced by\nthe foregoing history o f numerous m ilitary ventures launched by both Jefferson and M adison (after the latter\nbecam e P resident in 1809), the prosecution was brought precisely because Sm ith\xe2\x80\x99s acts were unauthorized\nR egarding P resident Jefferso n \xe2\x80\x99s having in stituted the Smith prosecution, the O \xe2\x80\x99Sullivan court concluded, \xe2\x80\x9cso\nit seem s the policy and intent of this law has alw ays been understood by the executive under every\nadm in istratio n .\xe2\x80\x9d Id. at 376.\n21 In 1917, the A ct w as supplemented b y the addition o f several related neutrality provisions passed in an\nA ct com m only referred to as the \xe2\x80\x9cEspionage A ct,\xe2\x80\x9d 40 Stat. 217.\nO ne o f the neutrality provisions enacted as a part o f the Espionage Act is presently codified at 18 U.S.C.\n\xc2\xa7 956, w hich prohibits \xe2\x80\x9ctw o o r more persons w ithin the ju risd ictio n o f the U nited States [froml conspir[ing]\nto injure o r destroy specific property situ ated w ithin a foreign country and belonging to a foreign governm ent\nw ith w hich the U nited States is at p e a c e .\xe2\x80\x9d O nly one prosecution appears to have been brought under this\nprovision. United States v. Elliott, 266 F. Supp. 318 (S.D .N .Y . 1967), and in that case, the defendant raised\nselective prosecution and equal protection claim s. In dism issing those claim s, the court stated:\nHe has not offered evidence even touching upon an exam ple of any other person who conspired\nto destroy property in any nation w ith which the U nited States w as clearly at peace and w ho was\nContinued\n\n76\n\n\x0cwith few exceptions, supports the view that the Act was not intended to\nproscribe military expeditions undertaken by the Government, the strongest\nsupport for this position may be in the more recent history of extensive covert\n\xe2\x80\x9cparamilitary\xe2\x80\x9d activity, authorized by the President and carried out by his\nagents, with varying degrees of disclosure to Congress, in nations against\nwhich Congress has not declared war. We turn now to that history.\nIII. Contemporary History of the Act\nNo recent President has refused to commit United States regular armed\nforces or \xe2\x80\x9cparamilitary\xe2\x80\x9d operatives, depending upon the need, to actual hostili\xc2\xad\nties because of a lack of congressional declarations or approval when, in the\nexercise of his \xe2\x80\x9cinherent\xe2\x80\x9d powers over the conduct of foreign affairs,22 and in\nthe fulfillment of his constitutional duty to \xe2\x80\x9ctake Care that the Laws be\nfaithfully executed,\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 3, and of his role as \xe2\x80\x9cCommander-inChief of the Army and Navy of the United States,\xe2\x80\x9d id. \xc2\xa7 2, it is his judgment\nthat such action is necessary to preserve the national security of the United\nStates. Among the more well-known examples of such actions are those of\nPresident Truman in Korea, President Eisenhower in Lebanon, President\nKennedy in Cuba and Southeast Asia, Presidents Johnson and Nixon in South\xc2\xad\n21 ( . . . continued)\nnot prosecuted. Instead, he has raised situations such as North Vietnam or the Bay o f Pigs where\n\ngovernment complicity would effectively bar any prosecution.\nId. at 324 (em phasis added).\nThe other set o f provisions enacted w ith the espionage laws authorized the President, \xe2\x80\x9c [d]unng a w ar in\nwhich the U nited States is a neutral nation\xe2\x80\x9d to enforce the United States* posture o f neutrality by requiring\n\xe2\x80\x9cowner[s], m aster!s], or person[s] in com m and\xe2\x80\x9d o f any vessels within the jurisdiction o f U nited States ports\nto \xe2\x80\x9cfurnish p ro o f satisfactory to the President, or to the person duly authorized by him, that the vessel w ill not\nbe em ployed . . . to com m it hostilities upon the subjects . o f any foreign prince or state . . . with which the\nU nited States is at peace . . . and that the said vessel will not be sold o r delivered to any belligerent nation,\n. . . within the jurisdiction o f the United States, or, having left that jurisdiction, upon the high seas.\xe2\x80\x9d 40 Stat.\nat 221-22; 18 U.S.C. \xc2\xa7 963. See also 18 U.S.C. \xc2\xa7\xc2\xa7 964-967. Section 964 provides in part that\n[d]uring a w ar in which the United States is a neutral nation, it shall be unlawful to send out o f the\nU nited States any vessel b u ilt,. . . as a vessel o f war . . . with any intent or under any agreem ent\nor contract that such vessel will be delivered to a belligerent n a tio n ,. . . or w ith reasonable cause\nto believe that the said vessel will be employed in the service o f any such belligerent nation after\nits departure from the jurisdiction o f the United States.\nSection 964 codifies the substantive rule o f international law forbidding the delivery of arm ed vessels to\nbelligerent pow ers by neutral nations that \xc2\xa7 963 authorized the President to enforce. See H.R. Rep. No. 30,\n65th C o n g , 1st Sess. 9 (1917).\nIn 1940, A ttorney General Jackson construed this provision to preclude the President from dispatching to\nthe B ntish G overnm ent, in exchange for certain services pursuant to an Executive A greem ent, \xe2\x80\x9cm osquito\nboats\xe2\x80\x9d which were at the tim e under construction for the U nited States Navy, because they w ould have been\n\xe2\x80\x9cbuilt, arm ed, o r equipped w ith the intent, o r with reasonable cause to believe, that they would enter the\nservice of a belligerent after being sent out o f the jurisdiction o f the U nited States.\xe2\x80\x9d 39 Op. A tt\xe2\x80\x99y Gen. 484,\n496 (1940). A lthough som e com m entators have suggested that Attorney General Jackson\xe2\x80\x99s opinion supports\nthe view that all o f the N eutrality Act provisions were intended to apply to G overnm ent activities, we believe\nthat \xc2\xa7 964 by its term s is lim ited to circum stances involving a declared war, unlike the other neutrality laws,\nand was proposed to C ongress by Attorney General G regory in 1917 for the purpose of providing \xe2\x80\x9cfor the\nobservance o f obligations im peratively im posed by international law upon the U nited States.\xe2\x80\x9d H.R. Rep. No.\n30, supra, at 9.\n12 See United States v Curtiss-Wright Export Corp., 299 U.S. 304 (1936)\n\n77\n\n\x0ceast Asia and Chile, President Ford in Angola, and President Carter in Iran. See\ngen erally Senate Select Comm, to Study Governmental Operations with re\xc2\xad\nspect to Intelligence Activities, Final Report on \xe2\x80\x9cForeign And Military Intelli\xc2\xad\ngence,\xe2\x80\x9d S. Rep. No. 755, 95th Cong., 2d Sess. (Book I) (1976) (Church\nCommittee Report); Emerson, War Pow ers Legislation, supra; Monaghan,\nP residen tial War-Making, 50 B.U. L. Rev. 19 (1970).23\nAlthough all of these actions generated some controversy\xe2\x80\x94 in fact, one may\nfairly say that virtually all of them generated heated debate and remain contro\xc2\xad\nversial today \xe2\x80\x94 no significant doubt was ever cast on the legality of the\nPresident\xe2\x80\x99s conduct under the Neutrality Act.\nIn addition to the numerous documented uses of troops by Presidents without\ncongressional authorization, the Eisenhower, Kennedy and Johnson adminis\xc2\xad\ntrations alone conducted over 400 covert military operations in countries with\nwhich the United States was \xe2\x80\x9cat peace,\xe2\x80\x9d including Laos, Angola and Cuba.\nChurch Committee Report, supra, at 46.24 In none of the many instances of\nsuch action has there been raised a credible allegation or serious debate in\nCongress regarding possible violations of the Neutrality Act.\nMoreover, there is strong contemporary evidence that the Neutrality Act is\nnot regarded by Congress as applying to military deployments by the President\nor covert activities of the Central Intelligence Agency or the Department of\nDefense. This evidence takes the form of the recent enactment by Congress of\nprovisions to \xe2\x80\x9cregulate\xe2\x80\x9d the President\xe2\x80\x99s use of the regular armed forces and of\ncovert operations conducted by the CIA and the Department of Defense. The\nWar Powers Resolution,25 the Hughes-Ryan Amendment to the 1974 Foreign\nAssistance Act,26 the Intelligence Authorization Act,27 the \xe2\x80\x9cBoland Amend\xc2\xad\n23 L ess w ell-rem em bered examples include President E isenhow er\'s evacuation o f United States nationals\nfrom Egypt d uring the Suez crisis in 1956; the 5,000 troops that President Eisenhow er sent to Beirut to\n\xe2\x80\x9c protect A m erican lives\xe2\x80\x9d and \xe2\x80\x9cassist\xe2\x80\x9d L ebanon in preserving its political independence during Lebanon\'s\ncivil \xe2\x80\x9c strife\xe2\x80\x9d in 1958; and President Jo h n so n \xe2\x80\x99s \xe2\x80\x9cairlift\xe2\x80\x9d actions in the C ongo in 1964 during the civil rebellion\nin that country as well as his deployment o f troops in the D om inican R epublic in 1965. See Em erson, War\n\nPowers Legislation, supra.\n24 \xe2\x80\x9cC overt action\xe2\x80\x9d w as defined by the Senate Select Com m ittee on Intelligence A ctivities as \xe2\x80\x9cclandestine\nactivity d esig n ed to influence foreign governm ents, events, organizations or persons in support of U.S.\nforeign policy conducted in such a way th a t the involvem ent o f the U.S. G overnm ent is not apparent.\xe2\x80\x9d Church\nC om m ittee R eport, supra, at 131.\n25 In brief, the W ar P ow ers Resolution, 50 U.S.C. \xc2\xa7\xc2\xa7 1541-1548, purports to require the President to report\nto C ongress w ithin 48 hours o f introducing U.S. A rm ed Forces, inter alia, \xe2\x80\x9c into hostilities or into situations\nw here im m inent involvem ent in hostilities is clearly indicated by the circum stances,\xe2\x80\x9d and to term inate such\nuse w ithin 60 days, unless Congress has declared w ar o r enacted a specific authorization for such use.\n26 T he H ughes-R yan Amendment, 22 U .S.C . \xc2\xa7 2422, provides:\nN o funds appropriated under the authority o f this o r any other Act may be expended by or on\nb e h alf o f the C entral Intelligence A gency fo r operations in foreign countries, o ther than activities\nintended solely fo r obtaining n ecessary intelligence, unless and until the President finds that each\nsuch op eratio n is im portant to the national security o f the U nited States and reports, in a timely\nfashion, a d escription and scope o f such operation to the appropriate com m ittees o f the Congress,\nincluding the C om m ittee on Foreign R elations o f the U nited States Senate and the Com m ittee on\nForeign A ffairs o f the United S ta te s H ouse o f Representatives.\n27 T he A ct, 50 U .S.C . \xc2\xa7 413(a)(1), continued the H ughes-R yan A m endm ent\xe2\x80\x99s executive reporting require\xc2\xad\nm ent, but lim ited the reporting to the S enate and H ouse Select C om m ittees on Intelligence. It also provided\nthat the D irector o f C entral Intelligence had to give prior, instead o f tim ely, notice o f \xe2\x80\x9cany significant\nC ontinued\n\n78\n\n\x0cment\xe2\x80\x9d to the Further Continuing Appropriation Act of 1983,28 and the similar\nrestrictions adopted by Congress in the Intelligence Authorization Act for\nFiscal Year 1984,29 all purport to impose various reporting requirements and\nexpenditure limits on the President regarding the conduct of military activities,\nwhich necessarily embrace activities that would otherwise be prohibited by the\nNeutrality Act if carried out by individuals acting without Government authori\xc2\xad\nzation.\nThese provisions constitute an explicit recognition by Congress of the\nPresident\xe2\x80\x99s authority to conduct such activities against countries with whom\nthe United States is \xe2\x80\x9cat peace\xe2\x80\x9d within the meaning of the Act. The Church\nCommittee, after extensive hearings and exhaustive study of the matter over a\nperiod of fifteen months, concluded:\nThe argument that through the provision of funds to the CIA\nCongress has effectively ratified the authority of the CIA to\nconduct covert action rests on the assumption that. . . Congress\nhas known that the CIA was engaged in covert action and has\nprovided funds to the CIA with the knowledge and intent that\nsome of the funds would be used for covert action.\n*\n\n*\n\n*\n\nOne of the reasons offered for the 1974 Amendment to the\nForeign Assistance Act was that it would ensure that Congress\nwould have sufficient information about covert action to deter\xc2\xad\nmine if such activities should continue.\n* * *\n\n[Although the actual state of congressional knowledge about\ncovert action prior to the 1970s is unclear[,] Congress . . . now\nknows that the CIA conducts covert action. Congress also knows\nthat the Executive claims Congress has authorized the Agency\n27 (. . . continued)\nanticipated intelligence activity.\xe2\x80\x9d O nly under extraordinary circum stances is the President authorized not to\nprovide a full report to these com m ittees, and even then he m ust (a) report to the chairm an and ranking\nm inority member o f each com m ittee and other leaders o f Congress, (b) provide notice in a timely fashion\nsubsequent to the covert operation taking place, and (c) provide a statem ent o f the reasons fo r not giving prior\nnotice. 50 U.S.C \xc2\xa7 413(a), (b).\n28 The Boland A m endm ent to the Act, Pub. L. No. 97-377, 96 Stat. 1830, 1865, provided:\nN one o f the funds provided in this Act may be used by the Central Intelligence A gency or the\nDepartment o f D efense to fum ish m ilitary equipm ent, military training or advice, or other\nsupport for m ilitary activities, to any group o r individual, not part o f a country\xe2\x80\x99s arm ed forces,\nfor the purpose o f overthrow ing the G overnm ent o f N icaragua or provoking a m ilitary exchange\nbetw een N icaragua and H onduras.\n29 T he 1984 restriction provides:\nD uring fiscal year 1984, not more than $24,000,000 o f the funds available to the Central\nIntelligence A gency, the D epartm ent o f D efense, o r any other agency or entity o f the United\nStates involved in intelligence activities m ay be obligated o r expended for the purpose or which\nw ould have the effect of supporting, directly or indirectly, m ilitary or param ilitary operations in\nN icaragua by any nation, group, organization, m ovement, o r individual.\nPub. L. No. 98 -2 1 5 , 97 Stat. 1475.\n\n79\n\n\x0cto do so. Finally, Congress knows that the CIA receives its funds\nthrough secret transfers of funds appropriated to the Department\nof Defense and that some of the transferred funds are used to\nfinance cover the action. In the future the failure by Congress to\nprohibit funds from being used for covert action by the CIA\nwould clearly constitute congressional ratification of the CIA\xe2\x80\x99s\nauthority, eliminating any ambiguity.\nChurch Committee Report, supra, at 498, 499, 501 (footnotes omitted).\nMoreover, these provisions were enacted with virtually no discussion of the\nNeutrality Act, which suggests that Congress did not view the Act as being\nrelevant to Presidentially authorized expeditions, whether they be covert ac\xc2\xad\ntivities of the Central Intelligence Agency or the Department of Defense, or\novert activities of the United States Armed Forces. In addition, such legislation\nconstitutes a recognition by Congress of the historic practice of Chief Execu\xc2\xad\ntives, as well as of the changing nature of military operations and the increasing\ncomplexity in foreign alliances, which require the President to be able to\nrespond immediately to world crises and threats to national security, short of\nusurping Congress\xe2\x80\x99 constitutional prerogative to declare war.30\nNotwithstanding the overwhelming support for the view that the Act was not\nintended to apply to Government officials acting pursuant to Presidential\norders, and particularly in view of the recent explicit congressional authoriza\xc2\xad\ntions of CIA activity in foreign countries noted above, the United States\nDistrict Court in Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal. 1984),31\nrecently ordered the Attorney General to conduct a preliminary investigation,\npursuant to Title VI of the Ethics in Government Act, 28 U.S.C. \xc2\xa7\xc2\xa7 591-598, to\ndetermine whether allegations that Government officials had violated the Neu\xc2\xad\ntrality Act by their recent actions in Nicaragua warranted application for the\nappointment of an independent counsel under the Ethics in Government Act.\nAlthough not directly deciding that issue, the court noted that \xe2\x80\x9cthe history of\nthe Neutrality Act and judicial precedent demonstrate the reasonableness of the\nview that the Act applies to all persons, including the President.\xe2\x80\x9d 577 F. Supp.\nat 1454 (emphasis added). The action was brought as a mandamus action by a\nMember of Congress, in his capacity as a private citizen, and two other citizens,\nalleging that they had sustained various injuries from the Government\xe2\x80\x99s activi\xc2\xad\nties concerning Nicaragua, to compel the Attorney General to conduct a pre\xc2\xad\n30 W hen asked about the applicability o f the N eutrality A ct to covert activities carried out during the\nK ennedy A dm inistration, A ttorney General R obert K ennedy replied:\nT here have been a num ber of inquiries from the press about our p resent neutrality laws and the\np o ssib ility o f th eir application in connection with the struggle for freedom in Cuba.\nFirst, m ay I say that the neutrality law s are among the oldest law s in our statute books. M ost of\nthe provisions date from the first years o f our independence and, w ith only minor revisions, have\ncontinued in force since the 18th century. Clearly they were not designed for the kind o f situation\n\nwhich exists in the world today.\nStatem ent o f A ttorney G eneral Kennedy to th e Press (Apr. 20, 1961) (cited in Lobel, The Rise and Decline of\nthe Neutrality Act, supra, 24 Harv. Int\xe2\x80\x99l L. J. a t 44 n.243.)\n31 See also Dellums v. Smith, 577 F. Supp. 1456 (N.D. C al. 1984) (denial o f stay); Dellums v. Smith, 573 F.\nSupp. 1489 (N .D . Cal. 1983).\n\n80\n\n\x0climinary investigation, pursuant to the Ethics in Government Act, into whether\nthe President and other Executive Branch officials had violated the Act. In\nconcluding that the Neutrality Act could reasonably be construed to proscribe\nofficial Government activity, for purposes of invoking the Ethics in Govern\xc2\xad\nment Act,32 the court relied primarily on United States v. Smith, the deficien\xc2\xad\ncies of which we have noted above.33 Although Dellums, unlike the Smith case,\ncannot be dismissed as not involving truly \xe2\x80\x9cofficial\xe2\x80\x9d Government conduct, we\nnevertheless believe that the case was erroneously decided. The United States\nCourt of Appeals for the Ninth Circuit has stayed the district court\xe2\x80\x99s order\npending resolution of the issue on appeal.34\nConclusion\nAs we have demonstrated, the Neutrality Act was enacted primarily to\nprotect the territorial sovereignty and independence of the United States from\nforeign entanglements during the early years of its history, as well as to\nenhance its ability to conduct a unified and consistent foreign policy, unim\xc2\xad\npeded by the acts of individual citizens. That purpose has remained constant\nthrough its several amendments and codifications over the last two centuries.\nWith the two possible exceptions noted in this memorandum of district court\ndecisions, the Act has been consistently construed by Presidents, Congresses,\nand judges to apply to unauthorized acts of individuals. All prosecutions\nbrought under the Act have been brought against individuals on unauthorized\nmissions pursuing private \xe2\x80\x9cforeign policy\xe2\x80\x9d goals. Although the fact that the Act\nwas not intended to apply to Government officials acting within the course and\nscope of their official duties was not made explicit in the text of the Act, we\nbelieve that the historical circumstances surrounding its enactment, together\nwith the historical practice of Presidents from times contemporaneous with the\nAct\xe2\x80\x99s passage to the present day, compel the conclusion that neither \xc2\xa7 960 of\nthe Act, nor any of its other provisions, impose criminal sanctions on the\nactivities carried on by the Central Intelligence Agency and its agents, under\nthe President\xe2\x80\x99s direction, in Nicaragua.\nT h eo d o r e B . O lson\n\nAssistant Attorney General\nOffice o f Legal Counsel\n32 The court stated\'\nThe present question is thus lim ited to w hether the view is reasonable that the N eutrality Act\nproscribes the activities alleged by plaintiffs. For reasons set forth below, the question m ust be\nansw ered in the affirm ative.\n577 F. Supp. at 1452.\n33 The other evidence cited by the court in support o f its conclusion appeared to be lifted, w holesale, out o f\np la in tiffs b rief without any further consideration. Even given this, the court intim ated an am bivalent view of\nthe evidence, when it noted that \xe2\x80\x9c [t]he contention that the N eutrality Act reaches executive officials is at least\nas persuasive as d efen d an t\'s claim that it does not " 577 F Supp. at 1452.\n34 NOTE: A fter this opinion was issued by the O ffice o f Legal Counsel, the court o f appeals reversed the\nd istnct c o u rt\'s decision in Dellums on the ground that the plaintiffs lacked standing to bring the action. See\nDellums v. Smith, 797 F.2d 817 (9th Cir. 1986)\n\n81\n\n\x0c'