b'Litigating Authority of the\nRegional Fishery Management Councils\nT h e leg islativ e h isto ry and g en eral s ta tu to ry fra m e w o rk o f th e F ish e ry C o n serv atio n and\nM a n ag em en t A c t o f 1976 in d icate th a t C o n g re ss d id n ot in ten d the R egional F ish ery\nM an ag em en t C o u n c ils to h av e litig atin g a u th o rity in d ep en d en t o f th e D e p a rtm e n t o f\nJu stice, so as to en ab le them to c h a lle n g e in c o u rt a d ecision by th e S e c re ta ry o f\nC o m m e rc e taken u n d er the F C M A and relatin g to the establishm ent o f th e C o u n c ils\nand th e ir functions.\nT h e C o u n c ils h a v e n e ith e r express s ta tu to ry a u th o rity n o r th at freed o m from ex ecu tiv e\nc o n tro l th at w o u ld g iv e rise to som e in feren c e su p p o rtiv e o f th e ir h av in g in d ep en d en t\nlitig atin g a u th o rity .\nT h e g en eral ru le against in te r-a g e n c y and in tra -ag en c y law suits arises n ot o n ly from a\nd esire fo r ce n tra liz e d c o n tro l o f litigation, but also from the co n stitu tio n al p rin cip le th at\nd isp u tes b etw een en tities su b ject to th e c o n tro l o f th e P re sid en t sh o u ld be reso lv ed\nw ith in th e e x e c u tiv e b ran ch .\n\nSeptember 17, 1980\n\' M EM ORANDUM OPIN IO N FOR T H E G E N ER A L COUNSEL,\nN A TIO N A L O CEAN IC AND\nATM OSPHERIC AD M IN ISTRA TIO N\nYou have asked this Office whether Regional Fishery Management\nCouncils (Councils), established by the Fishery Conservation and Man\xc2\xad\nagement Act of 1976 (FCMA), 16 U.S.C. \xc2\xa7\xc2\xa7 1801-82, may, on their\nown behalf, challenge in court a decision by the Secretary of Com\xc2\xad\nmerce (the Secretary) taken under the FCMA and relating to the\nestablishment of the Councils and their functions.1 We have concluded\nthat the Councils do not have independent litigating authority, and\ncannot, therefore, challenge the Secretary\xe2\x80\x99s actions in court.\nThe FCMA \xe2\x80\x9cadopts a somewhat convoluted scheme to achieve its\npurposes of conservation and management of fishery resources.\xe2\x80\x9d Wash\xc2\xad\nington Trollers Ass\'n v. Kreps, 466 F. Supp. 309, 311 (W.D. Wash. 1979).\nThis is at least in part the result of Congress\xe2\x80\x99 desire to effect a compro\xc2\xad\nmise between the need for federal control of the nation\xe2\x80\x99s marine re\xc2\xad\nsources and the states\xe2\x80\x99 desire for authority over \xe2\x80\x9ctheir\xe2\x80\x9d fish. See 122\nCong. Rec. 115 (1976); H.R. Rep. No. 948, 94th Cong., 2d Sess. 50\n(1976); H.R. Rep. No. 445, 94th Cong., 1st Sess. 61-62 (1975);\n1\nIn your letter you raised tw o issues. T h e first, concerning boundaries betw een adjoining Councils,\nw as addressed in o u r m em orandum to you o f D ecem ber 14, 1979 [3 Op. O .L .C . 464 (1979)].\n\n778\n\n\x0c50 C.F.R. \xc2\xa7601.1 (1979). As originally drafted, this legislation provided\nthat the Secretary and the Councils were to be coordinate authorities:\nThe regional Councils are, in concept, intended to be\nsimilar to a legislative branch of government. . . . The\nSecretary of Commerce is given authority under the bill\nto act as the \xe2\x80\x9cexecutive,\xe2\x80\x9d with ultimate authority to make\ndecisions about management regulations for the entire\nnation. . . . Finally, section 204 establishes an appellate\nbody, theoretically comparable to the judicial branch, the\nFishery Management Review Board. . . . The concept of\nan administrative review board of this nature is not new\n(i.e., the National Labor Relations Board) and will hope\xc2\xad\nfully provide an independent review process with the ease\nof access and speed of decision that will give confidence\nto the decisionmaking process.\nS. Rep. No. 416, 94th Cong., 1st Sess. 29 (1975). The Board \xe2\x80\x9cwould\nhave [had] exclusive and original jurisdiction to hear appeals from\nactions of the Secretary relating to fishery management. The purpose of\nthe Board [was] to provide an independent review procedure for the\nsettlement of disputes arising from the administration of the A ct.\xe2\x80\x9d Id. at\n38-39.\nTwo groups could appeal to it:\n(1) Any person who is adversely affected or aggrieved by,\nor who suffers legal wrong through [a final rule, regula\xc2\xad\ntion or decision of the Secretary, and,] . . .\n(2) Any Council whose recommended management regu\xc2\xad\nlations were determined by the Secretary to be nonconsistent with the national standards . . . .\nId. at 58 (proposed \xc2\xa7 204(c)(1), (2)).\n\nThis provision was included because the Senate committee believed\nthat:\nIt is inevitable that disputes will arise with respect to\nfishery management decisions. To meet the need for dis\xc2\xad\npute settlement, the bill establishes a Fishery Management\nReview Board. The Board, an independent quasi-judicial\nadministrative body, would review disputes between the\nSecretary and the Regional Councils, as well as other\ndisputes relating to fishery management decisions.\nId. at 5. Appeals from the Board to the Court of Appeals could only be\n\nbrought by a person \xe2\x80\x9cwho is adversely affected or aggrieved by, or\nwho suffers legal wrong through, a decision of the Board . . . ,\xe2\x80\x9d not\nby a Council. Id. at 59 (proposed \xc2\xa7 204(g)).\n779\n\n\x0cThe Board, however, did not become a part of the final version of\nFCMA. The House and Senate, having passed different versions of\nFCMA, deleted it in conference, stating:\nThe implementation process provisions follow comparable\nprovisions in the House bill and the Senate amendment [S.\n961], except that . . . (2) the provisions in the Senate\namendment establishing a 5-member, President-appointed\n\xe2\x80\x9cFishery Management Review Board\xe2\x80\x9d to determine ap\xc2\xad\npeals from regulations promulgated by the Secretary is\nnot included in the conference substitute in favor of judi\xc2\xad\ncial review.\nH.R. Rep. No. 948, 94th Cong., 2d Sess. 55 (1976). Judicial review\nunder FCMA is in accordance with the Administrative Procedure Act\n(APA). 16 U.S.C. \xc2\xa7 1855(d). Review under the APA is available to \xe2\x80\x9c[a]\nperson suffering legal wrong because of agency action, or adversely\naffected or aggrieved by agency action. . . . \xe2\x80\x9d 5 U.S.C. \xc2\xa7 702. The\nlegislative history, therefore, indicates that Congress decided not to\npermit the Councils to challenge the Secretary\xe2\x80\x99s decision administra\xc2\xad\ntively.\nUnder the FCMA, the Councils\xe2\x80\x99 staff and administrative expenses are\nfunded by Congress, and the disbursement of funds is controlled by the\nSecretary. 16 U.S.C. \xc2\xa7 1852(0(7). The Secretary appoints a majority of\nthe voting members to their three-year terms. 16 U.S.C. \xc2\xa7 1852(b)(3).\nHe provides the guidelines for the fishery management plans, 50 C.F.R.\n\xc2\xa7602.1 et seq., and has final responsibility for their development, 16\nU.S.C. \xc2\xa7\xc2\xa7 1854, 1855, and enforcement, 16 U.S.C. \xc2\xa7\xc2\xa7 1856(b), 1858,\n1861, and for promulgation of regulations. The Councils, on the other\nhand, have a purely advisory function under the statute. 16 U.S.C.\n\xc2\xa7 1852(h). The Secretary can, if he wishes, develop a plan or implement\na set of regulations of which a Council disapproves. 16 U.S.C.\n\xc2\xa7\xc2\xa7 1854(c)(1)(B), (c)(2), 1855(c).\nGiven this framework, we believe that the Councils lack independent\nlitigating authority. The conduct of litigation involving the United\nStates or one of its agencies 2 is broadly reserved to the Department of\n2\nA gencies include "an y d epartm ent, independent establishm ent, commission, adm inistration, a u th o r\xc2\xad\nity, board o r bureau o f the U nited States. . .\n28 U.S.C. \xc2\xa7451. All o f the opinions discussing the\nC ouncils\' status under various statutes appear to place them in at least one o f these categories. See\nM em orandum O pinion for the G eneral C ounsel, U.S. D epartm ent o f Com m erce, N ational O ceanic and\nA tm ospheric A dm inistration (N O A A ) from Leon Ulman, D eputy Assistant A ttorney G eneral, O ffice\no f Legal Counsel, O cto b er 14, 1977 [I Op. O .L .C . 239] (independent establishm ent under the Federal\nT ort Claims A ct); m em orandum for the D eputy G eneral Counsel, D epartm ent o f C om m erce from the\nAssistant A tto rn ey G eneral, C ivil Division, Ju ly 12, 1977 (agencies under Federal T o rt Claims Act);\nm em orandum for the D eputy G eneral Counsel, N O A A , from a staff attorney, N ovem ber 30, 1976\n(agency under the A dm inistrative Procedure Act); m em orandum for the G eneral Counsel, D epartm ent\no f C om m erce from the G eneral C ounsel, N O A A (same); m em orandum for the A cting G eneral\nCounsel, D epartm ent o f C om m erce from the G eneral Counsel, O ffice o f M anagem ent and Budget,\nM arch 22, 1977 (statutory advisory com m ittee); m em orandum for the G eneral Counsel, N O A A from\nthe Assistant G eneral Counsel, G eneral Services A dm inistration, Septem ber 30, 1977 (independent\n\n780\n\n\x0cJustice. 28 U.S.C. \xc2\xa7516. Without express authorization, an agency or\ndepartment risks having the court dismiss its suit. Interstate Commerce\nCom m \xe2\x80\x99n v. Southern Railway Co., 43 F.2d 534, 536-38 (5th Cir. 1976);\nFederal Trade Commission v. Guignon, 390 F.2d 323, 324 (8th Cir.\n1968); Securities & Exchange Commission v. Robert Collier & Co., 76\nF.2d 939, 940 (2d Cir. 1935); Sutherland v. International Insurance Co.,\n43 F.2d 969, 970-71 (2d Cir.) (L. Hand, J.), cert, denied, 282 U.S. 890\n(1930).3 Under the FCMA itself, for example, the Secretary must refer\ncivil penalty and forfeiture proceedings to the Attorney General for\nenforcement. 16 U.S.C. \xc2\xa7\xc2\xa7 1858(c), 1860(b)(c). In enacting the FCMA,\nCongress considered\xe2\x80\x94and rejected\xe2\x80\x94a statutory scheme that would\nhave permitted the Councils to challenge before an administrative body\nthe Secretary\xe2\x80\x99s final decision. Congress knows how to draft a statute\nthat would allow an agency to challenge a final order of another\nagency.4 In the absence of any such express statutory authority, the\nCouncils may not litigate against anyone, including the Secretary.5 This\nwill certainly not prevent states or individual council members from\nchallenging the Secretary so long as they have standing to do so. See,\nState o f Maine v. Kreps, 563 F.2d 1043, 1045 n.l (1st Cir. 1977). This\nreading of the Councils\xe2\x80\x99 authority also is consistent with the general\nprinciple that statutes should be construed so as to avoid doubts regard\xc2\xad\ning their constitutionality, see generally, Kent v. Dulles, 357 U.S. 116\n(1958). As discussed below, construing the Councils to have such au\xc2\xad\nthority would raise a substantial constitutional question.\nThis general rule against inter- and intra-agency lawsuits arises not\nonly from a desire for centralized control of litigation but also from the\nestablishment); m em orandum for the G eneral Counsel, N O A A from the Solicitor o f Labor, O c to \xc2\xad\nber 19, 1979 (w holly ow ned instrum entality o f the U nited States under the Social S ecurity A ct and\nFederal Employees* C om pensation A ct); m em orandum for the D epartm ent o f C om m erce from the\nChief, W age, Excise and A dm inistrative Provisions Branch, Internal Revenue Service, N ovem ber 22,\n1977 (w holly ow ned instrum entality under Federal Insurance C ontributions A ct). But cf. m em orandum\nfor the Assistant Secretary for A dm inistration, D epartm ent o f C om m erce from the A cting G eneral\nC ounsel, United States Civil Service Commission, A ugust 3, 1976 (public m embers not federal\nemployees).\n3 See The Gray Jacket. 72 U.S. (5 W all.) 370, 371 (1866); 5 U.S.C. \xc2\xa73106; Exec. O rd e r No. 12,146,\n\xc2\xa7 1-4, reprinted in 28 U.S.C. \xc2\xa7 509 A pp. at 1162 (Supp. Ill 1979); Exec. O rder No. 6,166, \xc2\xa7 5 (1933),\nreprinted in 5 U.S.C. \xc2\xa7\xc2\xa7 124-32 A pp. at 159 (1964); P. Bator, P. M ishkin, D. S hapiro & H. W echsler,\nH art & W echsJer\xe2\x80\x99s T he Federal C ourts & the Federal System 1315-20 (2d ed. 1973 8t 1977 Supp ).\n4 U nder the Federal Coal M ine Safety A ct o f 1952 (the A ct), for exam ple, C ongress set up a Coal\nMine Safety Board o f R eview (the Board). 30 U.S.C. \xc2\xa7 475 (1964). T h e Board could o verrule decisions\nmade by the D irecto r o f the United States Bureau o f Mines. 30 U.S.C. \xc2\xa7 477(a) (1964). T h e A ct\nspecifically provided, how ever, that the D irecto r could then challenge any final o rd e r o f the Board in\nthe C ourt o f A ppeals. 30 U.S.C. \xc2\xa7 478(a) (1964) (\xe2\x80\x9c upon the filing in such court o f a notice o f appeal by\nthe D irecto r . . . .\xe2\x80\x9d ) See Director, United States Bureau o f Mines v. Princess Elkhorn Coal Co., 226 F.2d\n570 (6th Cir. 1955); Director. United States Bureau o f Mines v. Three Fork Coal Co.. 222 F.2d 425 (4th\nCir. 1955) (appeal dismissed as untimely). T h e Board was elim inated under the Federal C oal Mine\nHealth and Safety A ct o f 1969. S. Rep. No. 411, 91st Cong., 1st Sess. 38 (1969). Instead, C ongress\nsubstituted \xe2\x80\x9c traditional adm inistrative and judicial procedures.*\xe2\x80\x99 Id. at 37-38. See 30 U.S.C. \xc2\xa7 8l6 (aX l)\n(Supp. I ll 1979). See also Klaus, The Taft-Hartley Experiment in Separation o f N L R B Functions. 11\nIndus & Lab. Rel. Rev. 371 (1958).\n6 See Lee v. Civil Aeronautics Board. 225 F.2d 950, 951-52 (D .C . Cir. 1955); D avis, Standing o f a\nPublic Official To Challenge Agency Decisions: A Unique Problem o f State Administrative Law. 16 A d. L.\nRev. 163, 167, 168 (1964).\n\n781\n\n\x0cconstitutional structure of our government. Disputes between parts of\nthe executive branch, each of which is ultimately responsible to the\nPresident, should be resolved within the executive branch. See Execu\xc2\xad\ntive Order No. 12,146, \xc2\xa7 1-4, reprinted in 28 U.S.C. \xc2\xa7 509 App. at 1162\n(Supp. Ill 1979). Independence of an agency from the executive\xe2\x80\x99s\nsupervisory control may overcome this presumption.6 The Councils,\nhowever, have neither express statutory authority nor that freedom\nfrom executive control that would give rise to some inference support\xc2\xad\nive of their having independent litigating authority. However independ\xc2\xad\nent the Councils may be in their day-to-day operations, ultimate author\xc2\xad\nity over a majority of their membership,7 budgets,8 and their major\narea of concern\xe2\x80\x94the fishery management plans\xe2\x80\x94remains with the Sec\xc2\xad\nretary or other federal agencies. The Councils perform the basic re\xc2\xad\nsearch, hold hearings, draft the plan for their area, and propose regula\xc2\xad\ntions. 16 U.S.C. \xc2\xa7\xc2\xa7 1852(h), 1853(c). It is the Secretary, however, to\nwhom the drafts and proposals are submitted and it is the Secretary\nwho either approves the management plan or amends it to his satisfac\xc2\xad\ntion. 16 U.S.C. \xc2\xa7 1854. See State o f Maine v. Kreps, 563 F.2d 1052,\n1055-56 (1st Cir. 1977). It is also the Secretary who reviews the\nregulations to insure their legality and who implements them. 16 U.S.C.\n\xc2\xa7 1855(c). That the Department of Commerce has found it most effi\xc2\xad\ncient to allow the Councils maximum leeway, see 50 C.F.R \xc2\xa7601.1\n(1979), does not change an analysis based on the statutory framework.\nThe Councils are subordinate parts of the Department of Commerce.\nAny attempt on their part to sue the Secretary would therefore raise a\nsubstantial constitutional question. .\nWe believe that the Councils are a part of the Departm ent-of Com\xc2\xad\nmerce and subject to its overall control. In the absence of specific\ncontrary legislation, they must be represented in any court proceeding\nby the Secretary\xe2\x80\x99s lawyer, the Attorney General. Since the Councils\ncannot go into court without the Attorney General, the Councils have\n\n6 See United States v. Nixon, 418 U.S. 683, 694-95 (1974); Federal Maritime Board v. Isbrandtsen, 356\nU.S. 481 (1958); Secretary o f Agriculture v. United States, 347 U.S. 645 (1954); Chapman v. FPC,- 345\nU.S. 153 (1953); IC C v. Jersey City, 322 U.S. 503 (1944); United States v. ICC, 221 F. Supp. 584\n(D .D .C . 1963); Benson v. United States, 175 F. Supp. 265 (D .D .C . 1959); United States v. ICC, 142 F.\nSupp. 741 (D .D .C . 1956).\n7 T h e S ecretary appoints a m ajority o f th e voting m em bers from lists subm itted by each state\'s\ngovern o r. 16 U.S.C. \xc2\xa7 1852(b)(1)(B). T h e nonvoting m em bers represent various federal agencies. 16\nU .S.C. f 1852(c). W h eth er th e Secretary m ay freely rem ove th e voting m em bers w hom he appoints,\n16 U .S.C. \xc2\xa7 1852(bXlXC), need not be decided. It appears, how ever, that the C ouncils\xe2\x80\x99 functions are\nprim arily executive, not legislative o r judicial. Wiener v. United States, 357 U.S. 349, 351-53 (1958);\nLewis v. Carter, 436 F. Supp. 958, 961 (D .D .C . 1977).\n* T h e Secretary pays for th e C ouncils\xe2\x80\x99 necessary staff and adm inistration. 16 U .S.C. \xc2\xa7 1852(0(7).\n\n782\n\n\x0cno authority to bring suit on their own behalf to challenge a decision\nby the Secretary taken under FCMA and relating to the establishment\nof the Councils or their functions.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n783\n\n\x0c'


b'Authority to Grant Conservation Easements Under\n40 U.S.C. \xc2\xa7 319\n\nFederal agencies do not have authority to g ra n t conservation easem ents in federal property under\n4 0 U .S C. \xc2\xa7 319.\n\nJanuary 19, 1993\n\nM\n\nem orandum\n\nO p in io n\n\nfo r t h e\n\nD epartm ent\n\nof\n\nG en era l C o u nsel\n\nC om m erce\n\nYou have requested the opinion o f the D epartm ent o f Justice on whether the\nSecretary o f Com m erce has authority under 40 U.S.C. \xc2\xa7 319 to convey to the City\no f Boulder, Colorado, a \xe2\x80\x9cconservation easem ent\xe2\x80\x9d in federal property under the\ncontrol of the Departm ent of Com m erce.1 The grant of this property interest would\nguarantee \xe2\x80\x9cthe perpetual preservation of open space . . . and maximum aesthetic\nand environm ental lim itations on future construction\xe2\x80\x9d on the site.2 W e understand\nthat your O ffice has tentatively concluded that the Department of Commerce \xe2\x80\x9cmay\nnot possess such authority\xe2\x80\x9d and has notified the city attorney for Boulder o f that\nview.3\nC onsistent with the tentative opinion of your office, we conclude that \xc2\xa7 319\ndoes not provide authority to grant a conservation easement. W e believe that\n\xc2\xa7 3 1 9 authorizes only the conveyance o f property interests that were recognized by\ncourts as valid and customary easements under the common law existing when the\nstatute was enacted. Although the so-called scenic or conservation easement first\ndeveloped as a land use device prior to enactm ent o f \xc2\xa7 319, it was not then recog\xc2\xad\nnized as a valid or custom ary easement in the vast majority of jurisdictions. In the\nabsence of any indication that C ongress intended \xc2\xa7 319 to include conservation\neasem ents, we conclude that the Departm ent o f Commerce is not authorized under\n\xc2\xa7 319 to convey such an easement.\n\n1 Letter for Barry M. Hartman, Acting Assistant Attorney General, Environment and Natural Resources\nDivision, from Wendell L Willkie, II, General Counsel, Department of Commerce (Apr. 8, 1992). Mr.\nHartman referred your request to us. The Environment and Natural Resources Division has reviewed this\nmemorandum and concurs in its conclusions.\n2 See M emorandum for Wendell L. Willkie, II, General Counsel, Department of Commerce, from Barbara\nS. Fredericks, Assistant General Counsel for Administration, Department of Commerce at 1 (Apr. 6, 1992)\n(\xe2\x80\x9cFredericks M em orandum \xe2\x80\x9d).\n3 This issue arose out o f negotiations between officials o f the Department of Commerce and the City of\nBoulder concerning the future development o f 205 acres occupied by the Department\xe2\x80\x99s National Institute of\nStandards and Technology The Department was considering entering into a contractual agreement that\nwould limit future construction on the site and preserve some o f its open space See Fredericks Memoran\xc2\xad\ndum at I. The city, however, wished to becom e the grantee of a \'\xe2\x80\x98conservation easem ent\'\' under Colorado\nlaw. ld .\\se e 16A Colo. Rev. Stat. \xc2\xa7 38-30.5-102 (1982).\n\n16\n\n\x0cAuthority to G rant Conservation E asem ents under 40 U .S.C \xc2\xa7 319\n\nSection 319 provides in part:\nW henever a State or political subdivision or agency thereof or\nany person makes application for the grant of an easement in, over,\nor upon real property of the United States for a right-of-way or\nother purpose, the executive agency having control of such real\nproperty may grant to the applicant, on behalf of the United States,\nsuch easement as the head of such agency determines will not be\nadverse to the interests of the United States, subject to such reser\xc2\xad\nvations, exceptions, limitations, benefits, burdens, terms, or condi\xc2\xad\ntions . . . as the head of the agency deems necessary to protect the\ninterests o f the United States. Such grant may be made without\nconsideration, or with monetary or other consideration, including\nany interest in real property.\n40 U.S.C. \xc2\xa7 319. Section 319 speaks of \xe2\x80\x9ceasem ent[s]. . . for a right o f way or\nother purpose,\xe2\x80\x9d but is silent as to what \xe2\x80\x9cother purpose[s]\xe2\x80\x9d are permitted. The stat\xc2\xad\nute is thus arguably ambiguous as to the meaning to be given \xe2\x80\x9ceasem ent\xe2\x80\x9d : whether\nCongress intended that \xe2\x80\x9ceasem ent\xe2\x80\x9d should be given its traditional, common-law\nmeaning or be interpreted in light of continuing legal developments.\nW e believe, however, that Congress intended to incorporate the common-law\ndefinition of easement into the statute.4 W e reach this conclusion by employing the\n\xe2\x80\x9ctraditional tools of statutory construction,\xe2\x80\x9d IN S v. Cardoza-Fonseca, 480 U.S.\n421, 446 (1987), to determine the \xe2\x80\x9cmeaning which fits most logically and com\xc2\xad\nfortably into the body of both previously and subsequently enacted law.\xe2\x80\x9d West\nVirginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) (citing 2 J. Suther\xc2\xad\nland, Statutory Construction \xc2\xa7 5201 (3d Horack ed. 1943)); see also infra pp. 2223 and note 14.\nSection 319 was enacted in 1962. See Act o f Oct. 23, 1962, Pub. L. No. 87852, \xc2\xa7 1, 76 Stat. 1129, 1129. The legislative history of \xc2\xa7 319 dem onstrates that\nthe General Services Administration (\xe2\x80\x9cGSA\xe2\x80\x9d) proposed the section to Congress\nbecause GSA had determined that the \xe2\x80\x9c[e]ffective and efficient administration of\nthe real property of the United States require[d] that executive agencies have\nauthority to grant easem ents.\xe2\x80\x9d H.R. Rep. No. 87-1044, at 2 (1961); see also S.\nRep. No. 87-1364, at 2 (1962). GSA advised that the then-existing procedures for\ngranting easements \xe2\x80\x94 which for most agencies required a determination that the\nproperty rights in question were both in excess o f the needs of the agency having\ncontrol of the land and surplus to the needs o f the federal government \xe2\x80\x94 were\n\xe2\x80\x9cunsatisfactory and unnecessarily cum bersome\xe2\x80\x9d and needed to be \xe2\x80\x9csimplified.\xe2\x80\x9d\n4\nAccordingly, there is on this question no statutory ambiguity to be resolved by the administering\nagency, and any different interpretation of \xc2\xa7 319 would fail at \xe2\x80\x9cstep one\xe2\x80\x99\xe2\x80\x99 of the test established by Chevron\nU.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).\n\n17\n\n\x0cOpinions o f th e O ffice o f L eg a l C ounsel\n\nS. Rep. No. 87-1364, at 2; see 108 Cong. Rec. 1591 (1962) (remarks of Rep.\nM cFall); H.R. Rep. No. 87-1044, at 2 .5\nSection 319 was patterned after specific easem ent-granting authority that was\nalready vested in the Attorney General, the Secretaries o f the military departments,\nand the head of the V eterans\xe2\x80\x99 Administration. See S. Rep. No. 87-1364, at 2; H.R.\nRep. No. 87-1044, at 2. The earliest o f those provisions gave the Attorney General\npow er to convey \xe2\x80\x9ceasem ents in and rights-of-way over\xe2\x80\x9d federal lands under his\ncontrol, w henever \xe2\x80\x9cadvantageous to the G overnm ent.\xe2\x80\x9d Act of May 9, 1941, ch. 94,\n55 Stat. 183 (1941) (codified at 43 U .S.C. \xc2\xa7 931a).6 The Attorney General sought\nthis authority to address difficulties encountered in the development of sites for\nfederal prisons. The Bureau of Prisons needed to restrict public access to certain\nlocal roads running through sites acquired for prisons, but some local officials\nwould agree to such closures only if the federal government \xe2\x80\x9cgrant[ed] an easement\nalong the outside boundaries of the site[s] for the relocation of the roads.\xe2\x80\x9d H.R.\nRep. No. 77-393, at 1-2 (1941); see 87 Cong. Rec. 3257 (1941) (remarks o f Rep.\nSumners). The D irector o f the Bureau o f Prisons explained that it was necessary to\n\xe2\x80\x9cbe able to grant such easements prom ptly in order to take advantage of agree\xc2\xad\nments made with State authorities. T he delay which would ensue should each case\nhave to be subm itted to Congress for special authorization would jeopardize the\ninterests o f the G overnm ent.\xe2\x80\x9d H.R. Rep. No. 77-393, at 2.\nAlthough \xc2\xa7 319 gives agency heads broad discretion in certain areas, we do not\nbelieve that Congress intended it to be construed to allow an agency to expand or\nalter the legal concept o f \xe2\x80\x9ceasement\xe2\x80\x9d as it was understood by Congress at the time\nof enactm ent. W e have previously opined that \xc2\xa7 319 \xe2\x80\x9cmust be interpreted as\nauthorizing [agencies] to grant easem ents only for those purposes for which ease\xc2\xad\nments have been traditionally permitted at com m on law.\xe2\x80\x9d M emorandum for Allie\nB. Latim er, General Counsel, GSA, from Douglas W. Kmiec, Deputy Assistant\nAttorney General, Office o f Legal Counsel at 4 (June 19, 1986) (\xe2\x80\x9cKmiec M em o\xc2\xad\nrandum \xe2\x80\x9d). W e explained that:\nsection 319 was intended to em pow er all agencies to grant ease\xc2\xad\nm ents over their property for any purpose for which easements\n5 The Senate Committee on Public Works reported that \xc2\xa7 319 would \xe2\x80\x9cimprove the present Government\nprocedures for granting of easements." S Rep. No 87-1364, at 3. The committee stated:\nAt present these procedures are unrealistic and result in undue delay to both the Federal Gov\xc2\xad\nernm ent and those dealing with it Enactment of this bill will provide effective procedures in\ndealing with requests for easements, necessary to effective cooperation by the Federal Govern\xc2\xad\nment in a variety of local and Federal building programs.\nId\n6 See also Act o f Aug. 10, 1956, ch 1041, 70A Stat 1, 150-51 (1956) (codified as amended at 10 U.S.C.\n\xc2\xa7\xc2\xa7 2668-2669) (if not \xe2\x80\x9cagainst the public interest,\xe2\x80\x9d Secretary of a military department may grant \xe2\x80\x9ceasements\nfor rights-of-way over, in, and upon public lands permanently withdrawn or reserved for the use of that de\xc2\xad\npartment\xe2\x80\x9d for specifically enumerated purposes, including railroad tracks, pipelines, and roads), Act of Sept.\n2, 1958, Pub. L. No 85-857, \xc2\xa7 5014, 72 S tat. 1105, 1254 (codified as amended at 38 U S.C. \xc2\xa78124)\n(Secretary o f Veterans Affairs given authority sim ilar to Attorney General\xe2\x80\x99s)\n\n18\n\n\x0cA u thority to G rant C onservation E asem ents under 40 U .S.C \xc2\xa7 3 1 9\n\ncould be granted. W e do not believe, however, that either the stat\xc2\xad\nute or the legislative history can be read . . . as authorizing agencies\nto grant easements fo r any purpose whatsoever, even for purposes\nfor which easements have never been recognized. In particular,\nnothing suggests that Congress intended to preempt and expand the\ncommon law of easements with the enactment of section 319.\nId. at 3-4 (footnote omitted). By \xe2\x80\x9cthe common law of easements\xe2\x80\x9d we meant the\nAmerican law of easements prevailing at the time of enactment of \xc2\xa7 319. See id. at\n4 & n.6 (listing the traditional common-law easements) (citing Restatem ent of\nProperty \xc2\xa7 450 (1944) (\xe2\x80\x9cRestatem ent\xe2\x80\x9d) and 3 Herbert T. Tiffany, The Law o f Real\nProperty \xc2\xa7\xc2\xa7 763-775, 839 (3d ed. 1939) (cataloguing the traditional easements)).\nIn 1962, an easement had a particular common-law meaning that was well set\xc2\xad\ntled. Because \xc2\xa7 319 contains no alternative definition o f the term, firmly estab\xc2\xad\nlished canons of construction compel the conclusion that Congress adopted the\n\xe2\x80\x9cestablished common law m eaning\xe2\x80\x9d o f the term easement recognized by courts at\nthe time. Chapman v. United States, 500 U.S. 453, 462 (1991).7 Therefore, gov\xc2\xad\nernment agencies are not free to convey interests in federal property that go beyond\nthe easements commonly recognized at common law in 1962.\n\xe2\x80\x9cAn easement is an interest in land in the possession of another,\xe2\x80\x9d that, among\nother things, \xe2\x80\x9centitles the ow ner of such interest to a limited use or enjoym ent of\nthe land in which the interest exists.\xe2\x80\x9d Restatement \xc2\xa7 450. In this case, it is helpful\nto distinguish between different types o f traditional easements. First, an easement\nmay be \xe2\x80\x9caffirmative,\xe2\x80\x9d entitling the owner of the interest to enter upon and use the\nservient land (for example, a right-of-way), or \xe2\x80\x9cnegative,\xe2\x80\x9d enabling the easement\nowner to prevent the possessor o f the land from doing acts upon the land that he\nwould otherwise be privileged to do (such as obstructing the light available to the\neasement owner). Id. \xc2\xa7\xc2\xa7 451-452; see 4 Richard R. Powell, The Law o f Real\n\xe2\x96\xa0Property \xc2\xa7 34.02[2][c], at 34-16 to 34-17 (rev. ed. 1997). Second, a traditional\neasem ent is either \xe2\x80\x9cappurtenant,\xe2\x80\x9d benefiting the owner of an adjacent parcel o f land\n\n1\nSee also M olzof v United States, 502 U S . 301, 306-07 (1992) (construing term "punitive dam ages"\naccording to its \xe2\x80\x9cwidely accepted common-law meaning\nwhen the [statute] was drafted and enacted\xe2\x80\x9d\nbased on \xe2\x80\x9ccardinal rule of statutory construction\xe2\x80\x9d that when Congress uses a legal term of art, it\n\xe2\x80\x9c \xe2\x80\x98presumably knows and adopts . . the meaning its use will convey to the judicial mind unless otherwise\ninstructed\xe2\x80\x99\xe2\x80\x9d) (quoting Morissette v United States, 342 U.S 246, 263 (1952)); Bowen v. M assachusetts, 487\nU S . 879, 896-97 (1988) (applying \xe2\x80\x9cthe well-settled presumption that Congress understands the state of\nexisting law when it legislates" to give the statutory term \xe2\x80\x9cmoney damages\xe2\x80\x9d the meaning \xe2\x80\x9cused in the com \xc2\xad\nmon law for centuries\xe2\x80\x9d) (emphasis added), Edwards v. Aguillard, 482 U S. 578, 598 (1987) (\xe2\x80\x9c \xe2\x80\x98A fundam en\xc2\xad\ntal canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their\nordinary, contemporary\xe2\x80\x99, common m eaning.\xe2\x80\x9d \xe2\x80\x99) (Powell, J., concurring) (emphasis added) (quoting Perrin v.\nUnited States, 444 U S. 37, 42 (1979), which examined \xe2\x80\x9cthe ordinary meaning of the term \xe2\x80\x98bribery\xe2\x80\x99 at the\ntime Congress enacted the statute [in question] in 1961\xe2\x80\x9d); Lukhard v Reed, 4 8 i U.S. 368, 386 (1987) (also\nquoting Perrin regarding the \xe2\x80\x9cfundamental canon of statutory construction . that, unless otherwise defined,\nwords will be given their ordinary, contemporary, common meaning\xe2\x80\x9d in construing the word \xe2\x80\x9cincom e\xe2\x80\x9d in a\nstatute).\n\n19\n\n\x0cO pinions o f the O ffice o f L e g a l C ounsel\n\n(called the \xe2\x80\x9cdom inant tenem ent\xe2\x80\x9d), or \xe2\x80\x9cin gross,\xe2\x80\x9d benefiting another regardless of\nw hether he owns or possesses other land. Restatement \xc2\xa7\xc2\xa7 453-454; 4 Powell, su\xc2\xad\npra, \xc2\xa7 34.02[2][d], at 34-17 to 34-22.\nThe \xe2\x80\x9cconservation easem ent\xe2\x80\x9d at issue is negative and in gross. Conservation\neasem ents are negative in character because they prevent the owner of the bur\xc2\xad\ndened estate from developing the land, typically in any way that would alter its\nexisting natural, open, scenic, or ecological condition. See Gerald Korngold, Pri\xc2\xad\nvately H eld C onservation Servitudes: A Policy A nalysis in the Context o f in Gross\nReal C ovenants and Easements, 63 Texas L. Rev. 433, 435 (1984); Jeffrey A.\nBlackie, N ote, C onservation Easements and the Doctrine o f Changed Conditions,\n40 H astings L.J. 1187, 1193 (1989). Often, the benefit o f the conservation ease\xc2\xad\nment will be in gross. See Restatement (Third) o f Property (Servitudes) \xc2\xa7 2.6 re\xc2\xad\nporter\xe2\x80\x99s note, at 71 (Tentative D raft No. 1, 1989) (\xe2\x80\x9cDraft Restatement\xe2\x80\x9d). The\nproperty interest sought by the City o f Boulder is expressly defined under Colo\xc2\xad\nrado statute as a \xe2\x80\x9cConservation easem ent in gross.\xe2\x80\x9d 16A Colo. Rev. Stat. \xc2\xa7 3830.5-102 (1982).\nTraditionally, courts recognized very few types of negative easements. See\nUnif. Conservation Easem ent Act \xc2\xa7 4 cmt., 12 U.L.A. 70, 76 (Supp. 1992).8\nCom m on law allowed only four: light, air, support o f buildings, and flow o f artifi\xc2\xad\ncial stream s. D ukem inier & Krier, supra, at 964; John J. Costonis, The Chicago\nPlan: Incentive Zoning a nd the Preservation o f Urban Landmarks, 85 Harv. L.\nRev. 574, 613 (1972). Prior to the enactm ent of \xc2\xa7 319, American courts had added\nto this short list only expressly granted \xe2\x80\x9ceasem ents of view,\xe2\x80\x9d which prevent a ser\xc2\xad\nvient landow ner from obstructing th e view enjoyed by the owner of a dominant\ntenement. See, e.g., Petersen v. Friedman, 328 P.2d 264, 266 (Cal. Dist. Ct. App.\n1958); N orthio Theatres Corp. v. 2 2 6 M ain St. H otel Corp., 231 S.W.2d 65, 67\n(Ky. 1950); M cC arthy v. City o f M inneapolis, 281 N.W . 759, 761 (Minn. 1938);\nsee also D ukem inier & Krier, supra, at 1003.9 M oreover, the benefit of a tradi\xc2\xad\ntional negative easem ent could not be in gross. See 2 American Law o f Property\n\xc2\xa7 8.12 (A. Jam es Casner ed., 1952); see also Costonis, 85 Harv. L. Rev. at 61314.10\n8 Negative easements were traditionally disfavored because they restricted the free use and marketability\no f land. See Jesse Dukeminier & James E Krier, Property 962 (1981), Note, 40 Hastings L J at 1199\n9 A lthough we have not been asked to address whether the grant of an easement of view would be valid\nunder \xc2\xa7 319, we note that an easement of view is quite distinct from a conservation easement In those\njurisdictions where an easement of view is valid, the limits on development that it imposes are quite similar\nto those imposed by an easement of light or air. Surface development and development of the servient tene\xc2\xad\nm ent\'s natural resources are normally not restricted at all, because construction on the servient tenement is\nperm itted so long as it does not block the protected line of sight or view over the servient tenement from the\ndom inant tenem ent See, e g., Petersen, 328 P.2d at 265-66. The easement of view is commonly drafted as a\nbuilding height lim it Id. In contrast to an easem ent of view, the so-called conservation easement at issue\nhere would appear to prevent any development of the government land, including surface development,\nnatural resources development, and all types o f construction. Fredericks Memorandum at 1\n10 Rather than adding to the list of negative easements, American courts (following the lead of the Eng\xc2\xad\nlish com m on law) achieved some of the purposes that might have been served through use of negative ease\xc2\xad\n\n20\n\n\x0cA u th o rity to G rant C onservation E asem ents under 4 0 U.S.C \xc2\xa7 3 1 9\n\nFor these and other reasons, commentators have concluded that conservation\neasements do not fall within the sphere of traditional easements. As one com m en\xc2\xad\ntator has explained:\nTraditionally, the law of real covenants (enforced either as covenants-at-law or as equitable servitudes) has been seen as distinct\nfrom that o f easements. Courts have viewed easements as valuable\nand protected property rights, while treating real covenants with\nsuspicion and subjecting them to greater barriers against enforce\xc2\xad\nment. . . .\n. . . [A]ssuming there is validity to the traditional dichotomy be\xc2\xad\ntween real covenants and easements, conservation servitudes more\nclosely resemble real covenants than easements and hence should\nnot be labeled and treated as easements. Although conservation\nservitudes are negative restrictions, they do not resemble any of the\nfour traditional types of negative easements. Like real covenants,\nconservation servitudes are \xe2\x80\x9cpromises respecting the use of land.\xe2\x80\x9d\nKorngold, 63 Texas L. Rev. at 436-37 (footnotes omitted); see also Note, Open\nSpace Procurement Linder C olorado\xe2\x80\x99s Scenic Easement Law, 60 U. Colo. L. Rev.\n383, 395 (1989) (\xe2\x80\x9cConservation easements, often held in gross by remote charita\xc2\xad\nble organizations, might receive little judicial protection under a common law that\ntraditionally disfavors such restrictions on land use.\xe2\x80\x9d).\nAlthough the use of \xe2\x80\x9cscenic\xe2\x80\x9d or \xe2\x80\x9cconservation\xe2\x80\x9d servitudes to achieve open space\nor other land preservation goals first developed prior to the enactment of \xc2\xa7 319,"\nthose innovative forms of servitudes had not gained wide acceptance in the courts\nby 1962, and certainly such interests were not considered \xe2\x80\x9ceasem ents\xe2\x80\x9d in the tradi\xc2\xad\ntional sense. See, e.g., Jan Z. Krasnowiecki & James C.N. Paul, The Preservation\no f Open Space in M etropolitan Areas, 110 U. Pa. L. Rev. 179, 194 (1961) (\xe2\x80\x9c[T]he\ntype of interest needed to accomplish open-space preservation is so unlike any\neasement and so like most restrictive covenants that one can expect the courts to\ntreat them as covenants.\xe2\x80\x9d). Under the common law, these interests, if recognized\nas property interests at all, would most likely have been classified as servitudes or\nreal covenants rather than negative easements. See Costonis, 85 Harv. L. Rev. at\nments by expanding the recognition of a different property interest, the \xe2\x80\x9cequitable servitude,\xe2\x80\x9d which is a\npromise respecting the use of land (similar to a real covenant) that is equitably enforceable. See Dukeminier\n& Kner, supra, at 964, 966-67, 1003\n11\nSee William A. Whyte, Securing Open Space fo r Urban America: Conservation Easements 11-14\n(Urban Land Inst. Bull No 36, 1959) In the 1950s and before, governments, including the federal govern\xc2\xad\nment, occasionally used their powers of eminent domain to acquire scenic \xe2\x80\x9ceasements\xe2\x80\x99* in property adjoining\nparklands or highways. See id., see also 4 Powell, supra, \xc2\xa7 34.11(3], at 34-60 to 34-61. The first \xe2\x80\x9cScenic\nEasement Deed Act,\xe2\x80\x9d enabling local governments to accept grants of scenic easements, was passed in C ali\xc2\xad\nfornia in 1959 See Thomas S. Barrett & Putnam Livermore, The Conservation Easement m California 11\n(1983)\n\n21\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\n614-15 (\xe2\x80\x9cCharacterizing a preservation restriction as an equitable servitude offers a\nmore prom ising route [to recognition] than either [as a negative easement or real\ncovenant]. Equitable servitudes are not restricted to four specific types of negative\neasem ents. . . . No privity o f estate other than that provided by the agreement need\nexist.\xe2\x80\x9d ); see also 4 Pow ell, supra, \xc2\xa7 34.11 [3] at 34-158 (\xe2\x80\x9cTulk v. M oxhay, [2. Phil.\n774, 41 Eng. Rep. 1143 (Ch. 1848)] the case generally considered as establishing\nthe doctrine o f equitable servitudes, really involved [what is now being referred to\nas] a scenic easem ent.\xe2\x80\x9d).\nIndeed, it was because o f the reluctance o f courts to recognize this new form of\nproperty interest that many states in the 1970s and 1980s adopted conservation\neasem ent statutes, including the C olorado statute that would govern the convey\xc2\xad\nance sought by the City o f Boulder.12\nA lthough recent developments in the American law o f property tend to blur the\ndistinctions between negative easements and other forms of servitudes such as re\xc2\xad\nstrictive covenants and equitable servitudes, see Draft Restatement, at xxv-xxvi,\nand suggest that benefits in gross m ay som eday be freely permitted for all servi\xc2\xad\ntudes, see id. \xc2\xa7 2.6 & cm t. d, the traditional distinctions were still much in force in\n1962. A ccordingly, we conclude that by authorizing agencies in \xc2\xa7 319 to convey\nonly \xe2\x80\x9ceasem entfs],\xe2\x80\x9d Congress did not intend to permit an agency to encumber fed\xc2\xad\neral property with a nontraditional form o f restrictive equitable servitude like a\n\xe2\x80\x9cconservation easem ent.\xe2\x80\x9d 13\nAs we stated earlier, the Supreme Court has instructed that we construe argua\xc2\xad\nbly am biguous terms \xe2\x80\x9cto contain that permissible meaning which fits most logically\n\n12 See 1976 Colo Sess Laws 750, \xc2\xa7 1 (codified at 16A Colo. Rev. Stat \xc2\xa738-30.5-101 (1982)) ("The\ngeneral assembly finds and declares that it is in the public interest to define conservation easements in gross,\nsince such easem ents have not been defined by the judiciary.\xe2\x80\x9d), see also Umf. Conservation Easement Act\n\xc2\xa7 4(3), 12 U L.A. 70, 76 (Supp 1992) (providing that a conservation easem ent will be valid under the uni\xc2\xad\nform act even though \xe2\x80\x9cit is not of a character that has been recognized traditionally at common law\xe2\x80\x9d), supra,\nnote 8.\n13 Our conclusion would be the same even if we disregarded the \xe2\x80\x9c fundamental canon of statutory con\xc2\xad\nstruction . . . that, unless otherwise defined, w ords will be interpreted as taking their ordinary, contemporary,\ncommon meaning,\xe2\x80\x9d Perrin v. United States, 444 U S 37, 42 (1979), and assumed that Congress intended the\nmeaning of the term \xe2\x80\x9ceasem ent\xe2\x80\x9d in \xc2\xa7 319 to evolve with the common law The use of the word \xe2\x80\x9c easement\xe2\x80\x9d\nin the term \xe2\x80\x9cconservation easem ent,\xe2\x80\x9d a term that does not occur in \xc2\xa7 319, is of slight legal significance The\nrelevant question in our analysis is whether the eventual recognition and enforcement of conservation ease\xc2\xad\nments \xe2\x80\x94 in states where they are recognized and enforced \xe2\x80\x94 were an outgrowth of the traditional law of\neasements or whether conservation easements developed independently o f the common law doctrine\nW e have already explained that a conservation easement is closer to a restrictive equitable servitude than\nany type o f com m on law easement. Even more important, however, conservation easements have come to be\nrecognized in a body of statutory law that developed independently of the common law of easements. Thus,\neven if Congress intended for the meaning o f the term \xe2\x80\x9c easement\xe2\x80\x9d in \xc2\xa7 319 to evolve with the common law\n(and expressed such intent in the statute), there is still ample reason to conclude that a so-called\n\xe2\x80\x9cconservation easem ent\xe2\x80\x9d is not a development of the comm on law of easements This conclusion further\nsupports our view that a conservation easement cannot properly be interpreted as an easement within the\nmeaning o f \xc2\xa7 319\n\n22\n\n\x0cA uthority\xe2\x80\x99 to G rant Conservation E asem ents under 40 U.S C \xc2\xa7 319\n\nand comfortably into the body of both previously and subsequently enacted law.\xe2\x80\x9d 14\nAs the Court explained in United Sav. A s s \xe2\x80\x99n:\n[V]iewed in the isolated context of [a particular section o f a statute],\nthe phrase [at issue] could reasonably be given the meaning peti\xc2\xad\ntioner asserts. Statutory construction, however, is a holistic en\xc2\xad\ndeavor. A provision that may seem ambiguous in isolation is often\nclarified by the remainder o f the statutory scheme .. . because only\none of the permissible meanings produces a substantive effect that is\ncompatible with the rest of the law.\n484 U.S. at 371 (citations omitted). We therefore examine congressional intent as\nit is expressed in other statutes governing the management and disposal of excess\nfederal property, see 40 U.S.C. \xc2\xa7\xc2\xa7 483, 484, 488, 490, as well as in the other sub\xc2\xad\nsections of 40 U.S.C. \xc2\xa7 319. That examination provides further support for our\nconclusion that Congress did not intend \xc2\xa7 319 to apply to the type of conservation\neasements at issue here.\nWith few exceptions, the management and disposal of federal governm ent prop\xc2\xad\nerty remains a m atter entrusted to the Adm inistrator of GSA by the Federal Prop\xc2\xad\nerty and Administration Services Act of 1949, ch. 288, 63 Stat. 377 (1949)\n(codified as amended in scattered sections of Titles 40, 41, 44 & 50 o f the United\nStates Code). The purpose o f the statute is to provide for the efficient operation of\nfederal governm ent property, buildings and works. 40 U.S.C. \xc2\xa7\xc2\xa7 471, 483. With\nrespect to an agency\xe2\x80\x99s surplus property, the Adm inistrator must follow certain pro\xc2\xad\ncedures in the disposal or transfer o f such property to maximize the benefit to the\nfederal governm ent as a whole. 40 U.S.C. \xc2\xa7\xc2\xa7 483-490. Under these procedures,\nproperty must be reallocated within the federal government if possible prior to be\xc2\xad\ning transferred or conveyed to private parties. 40 U.S.C. \xc2\xa7 483(a)(1). The Ad\xc2\xad\nministrator also has nearly exclusive control over the leasing of federal government\nproperty. 40 U.S.C. \xc2\xa7 490(a)(l3). Absent independent authority, no agency may\nlease or otherwise encumber federal government property without GSA approval.15\n\n14 West Virginia Umv Hasps , h it. v Ca.\\ev, 499 U S 83, 100 (1991); see also Patterson v Shumate,\n504 U S 753, 758, 762-63 (1992) (explaining that an ambiguous statutory term should be considered\n\xe2\x80\x9ctogether with the rest\xe2\x80\x9d o f the statute); K Mart Corp v Cartier, Inc , 486 U S 281, 291 (1988) (in discern\xc2\xad\ning the meaning of a statute, \xe2\x80\x9cthe court must look to . . the language and design of the statute as a whole\xe2\x80\x9d ),\nUnited Sav A ss\xe2\x80\x99n v Timbers o f Inwood Forest Assocs., 484 U.S 365, 371 (1988) (instructing that ambigu\xc2\xad\nous phrases should be examined in the context of \xe2\x80\x9cthe remainder of the statutory scheme\xe2\x80\x9d ); cj. Chtsom v\nRoemer, 501 U.S 380, 417 (1991) (Scalia, J , dissenting) (\xe2\x80\x9cOur highest responsibility in the field of statutory\nconstruction is to read the laws \\n a consistent way . \xe2\x80\x9d )\n15 Id , see also Reorg. Plan No 18 of 1950, reprinted m 15 Fed. Reg 3177 (1950) ("All functions with\nrespect to acquiring space in buildings by lease, and all functions with respect to assigning and reassigning\nspace in buildings for use by agencies\n. are hereby transferred from the respective agencies in which such\nfunctions are now vested to the Administrator of General Services \xe2\x80\x9c).\n\n23\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nIn sum, the statutory schem e of 40 U.S.C. \xc2\xa7\xc2\xa7 483-490 entrusts to the Adminis\xc2\xad\ntrator o f G SA authority over the use and disposition of surplus federal property,\nand the transfer o f substantial control over such property to private parties is disfa\xc2\xad\nvored. A lthough \xc2\xa7 319, as proposed by GSA, is an exception to the scheme out\xc2\xad\nlined in 40 U.S.C. \xc2\xa7\xc2\xa7 483-490, there is no reason to believe that GSA proposed or\nthat Congress intended to undercut o r repeal by implication large portions o f the\nmore general schem e.16 Section 319 was intended only as a limited exception to\nthe existing law to expedite relatively limited types o f grants. See Kmiec M em o\xc2\xad\nrandum at 3-4.17 A ccording to its principal sponsor in the House of Representa\xc2\xad\ntives, \xc2\xa7 319 was proposed by GSA as \xe2\x80\x9ca simplified way\xe2\x80\x9d to grant easements over\nfederal land without going through the \xe2\x80\x9cunnecessarily cumbersome\xe2\x80\x9d requirement of\nhaving the land declared surplus to the needs of the United States. 108 Cong. Rec.\n1591 (statem ent of Rep. McFall). It was not intended to displace any other law.\nId.\nIt is true that \xc2\xa7 319 is broader than the authority specifically given to the Secre\xc2\xad\ntaries o f the m ilitary departments, see 10 U.S.C. \xc2\xa7\xc2\xa7 2668-2669, because the latter\nis limited to the granting o f easements for specifically enumerated rights-of-way,\nsuch as pipelines and roadways, whereas \xc2\xa7 319 allows the conveyance of an ease\xc2\xad\nment for a right-of-w ay \xe2\x80\x9cor other purpose.\xe2\x80\x9d 40 U.S.C. \xc2\xa7 319. See H.R. Rep. No.\n87-1044, at 2; S. Rep. No. 87-1364, at 2 .18 However, this shows only that Con\xc2\xad\ngress intended \xc2\xa7 319 to authorize agencies to grant easements for purposes other\nthan rights-of-w ay; it does not suggest that Congress intended to confer granting\nauthority for interests other than easem ents (as the term was understood in 1962).19\nConsistent with this interpretation, the only example of an easement specified in\n\xc2\xa7 319 is a right-of-w ay over federal property. In fact, in a brief exchange between\nthe principal floor sponsor in the H ouse, Representative McFall, and Representa\xc2\xad\n\n16 Subsection 319c expressly provides that the authority to convey such easements created in \xc2\xa7 319 is\nnot conferred with respect to the vast majority o f federal land See 40 U S C. \xc2\xa7 319c (excluding the public\nlands, including the national forests, fish and w ildlife preserves, and certain other land under the control of\nthe Secretary of the Interior as well as certain Indian trust property from the definition of \xe2\x80\x9creal property of the\nUnited States\xe2\x80\x9d as used in \xc2\xa7 319)\n17 The Senate Committee on Public Works stated that \xe2\x80\x9ceasements might be desired for power transmis\xc2\xad\nsion lines, pipelines, water lines, roads, and o ther public utilities or public service facilities, which serve a\nhighly useful purpose, and that if the head o f the executive agency determines that such easement is not\nadverse to the interests o f the United Slates, it should be granted \xe2\x80\x99* S Rep No 87-1364, at 3\n18 See also Letter for Sam Rayburn, Speaker of the House of Representatives, from John L. Moore, Ad\xc2\xad\nm inistrator o f GSA (June 12, 1961), reprinted in H R. Rep. No 87-1044, at 4 and Sen Rep No 87-1364, at\n5 The letter explained the draft bill submitted by GSA\nRather than limit the grant o f such easements to enumerated purposes, as is done in 10 U.S C\n2668 and 2669, it is fell advisable to perm it the head of the executive agency having control of\nproperty to grant the easem ent for such purpose as he deems advisable so long as the interests of\nthe United States will not be adversely affected.\n19 In addition to nghts-of-way, other rights recognized as easements when \xc2\xa7 319 was enacted include1\nwatercourses, percolating waters, spring waters, grants of water power, artificial watercourses, surface waters\nand drains, support of land and buildings, party walls, partition fences, pews, light and air, and burial rights.\nSee 3 Tiffany, supra, at \xc2\xa7\xc2\xa7 763-775\n\n24\n\n\x0cA u thority to Grant Conservation E asem ents under 40 U S C \xc2\xa7 319\n\ntive Gross on whether the original bill should be placed on the unanimous consent\ncalender, Representative M cFall stated that he thought the bill was \xe2\x80\x9cconfined to the\ngranting of an easement fo r right-of-way purposes."\n108 Cong. Rec. 1591\n(emphasis added). W hen asked to provide examples o f the types of easem ents that\ncould be conferred pursuant to the bill, Representative McFall only offered the\nexample of a right-of-way over federal property and specifically rejected other\ninterpretations of the bill. Id. Satisfied by Representative M cFall\xe2\x80\x99s assurances that\n\xc2\xa7 3 1 9 would not change existing laws governing the use and disposal of federal\nproperty except to allow the grant of relatively limited types o f easements, Repre\xc2\xad\nsentative Gross withdrew his reservation to allow the bill to be placed on the\nunanimous consent calender. Id.20\nCompared to easements that confer rights-of-way, it is obvious that the scope of\nprivate control over federal property made possible by the grant of a conservation\n\xe2\x80\x9ceasem ent\xe2\x80\x9d would be much more extensive. We have previously opined that an\nagreement referred to as an \xe2\x80\x9ceasement\xe2\x80\x9d that amounts in substance to a lease of fed\xc2\xad\neral property is beyond the scope of \xc2\xa7 319. See Kmiec Memorandum at 5-9. We\nexplained that traditional easements are characterized by the \xe2\x80\x9c\'requirem ent that the\neasement involve only a limited use or enjoyment of the servient tenem ent.\xe2\x80\x99\xe2\x80\x9d Id. at\n5 (quoting 4 Powell, supra, \xc2\xa7 34.02[1], at 34-10 (rev. ed. 1997)); see also R e\xc2\xad\nstatement \xc2\xa7 471, cmts. d and e. For this reason, we concluded that the purported\neasement at issue in the Kmiec Memorandum was not valid. Kmiec M emorandum\nat 9.\nThe type of conservation easement discussed in your request and the types of\nconservation easements authorized under the Colorado statute do not appear to be\nlimited in scope or constrained by definition. The Colorado statute enforces the\nseemingly unlimited \xe2\x80\x9cright in the owner o f the easem ent to prohibit or require a\nlimitation upon or an obligation to perform acts on or with respect to a land or wa\xc2\xad\nter area or air space above the land or water . . . appropriate to the retaining or\nmaintaining of such land, water, or airspace . . . in a natural, scenic, or open condi\xc2\xad\ntion.\xe2\x80\x9d 16A Colo. Rev. Stat. \xc2\xa7 38-30.5-102 (1982).\nThus, the scope of restrictions that may be placed on the agency\xe2\x80\x99s use o f its land\nunder the Colorado conservation easement statute are limited only by the im agina\xc2\xad\ntion o f the drafters of the granting instrument, \xc2\xa7 38-30.5-103(4), and the require\xc2\xad\nment that such use restrictions be \xe2\x80\x9cappropriate\xe2\x80\x9d to the preservation of land in \xe2\x80\x9ca\nnatural, scenic, or open condition,\xe2\x80\x9d \xc2\xa7 38-30.5-102. Moreover, the Colorado statute\nexpressly provides that the remedies available for a breach of a conservation ease\xc2\xad\nment are not limited by traditional remedies at law or equity, but also include dam\xc2\xad\nages for \xe2\x80\x9cthe loss of scenic, aesthetic, and environmental values.\xe2\x80\x9d \xc2\xa7 38-30.5108(3). It is clear that many types of leases would involve fewer limitations on an\n20\nAlthough the text of \xc2\xa7 319 plainly authorizes the grant of an easement for a right-of-way or "other\npurpose," the exchange between Representatives Gross and McFall is evidence that at least some members\nof Congress thought such other purposes were rather limited.\n\n25\n\n\x0cO pinions o f the O ffice o f Legal C ounsel\n\nagency\xe2\x80\x99s use of its surplus land than som e types of conservation easements.21 In\nshort, we do not believe that the type o f conservation easem ent authorized by Colo\xc2\xad\nrado law is the type o f limited easement that is covered by \xc2\xa7 319.\nFinally, we have reconsidered the legislative history of \xc2\xa7 319, and conclude that\nthe purposes underlying the enactment o f \xc2\xa7 319 seem to have significantly less\nforce in the context o f open space preservation. As discussed above, the principal\npurpose behind \xc2\xa7 319 was to promote the \xe2\x80\x9ceffective administration\xe2\x80\x9d o f federal\nproperty by allow ing agencies to respond quickly to the demands of local interests\nthat may present a relatively minor im pedim ent to the completion of a federal land\ndevelopm ent project. W here, on the other hand, the local interest wishes to secure\nthe perpetual preservation o f federal land by preventing further development, and\nthe agency is willing to accommodate such a desire, there would ordinarily be little\nneed for a quick conveyance of a conservation easement by the agency. If the\nagency determ ines that such preservation is consistent with the interests o f the\nUnited States, the agency may follow existing procedures for the disposal of excess\nproperty, see 40 U.S.C. \xc2\xa7\xc2\xa7 483, 484, 488, 490, or may seek special legislative ap\xc2\xad\nproval from Congress for such a conveyance.\n\nDOUGLAS R. COX\nPrincipal Deputy\nAssistant Attorney General\nO ffice o f Legal Counsel\n\n21\nThere are obviously many differences between a lease and a conservation easement, particularly with\nregard to the possessory interests involved, but there might be little difference with respect to the nonow ner\xe2\x80\x99s degree of control over the federal agency\'s use of the land that is subject to the lease or conservation\neasement We adhere to the view that Congress did not intend in the passage of \xc2\xa7 319 to create a distinction\nbetween G S A \xe2\x80\x99s authority to direc\' and supervise leases on federal property and its authority to supervise\nconveyances referred to as easemeiiis that amount to a significant relinquishment of federal control over such\nproperty.\n\n26\n\n\x0c'


b'Department of Justice Authority to Provide\n\xe2\x80\x9cProtective Custody\xe2\x80\x9d for Defectors\nW hile any com ponent o f the D epartm ent o f Justice may contract w ith the D epartm ent of\nstate to perform the latter\'s security functions, the D epartm ent o f State is not a uthor\xc2\xad\nized to provide protective custody to defectors w ho are neither leading figures in, nor\ndirect representatives of, their governm ent.\nT he A ttorney G eneral has authority under the Im m igration and Nationality A ct to\nprevent departure o f an alien defector w ho is being repatriated under duress and might,\nin a particular case, have discretionary authority to provide some sort o f protective\ncustody for that defector.\nU nder \xc2\xa7 235(b) o f the Im m igration and N ationality A ct, the Im m igration and N aturaliza\xc2\xad\ntion Service has authority to detain a defector w ho is deportable or excludable, until\nsuch time as he is granted political asylum.\nIf a defector is assaulted,-harassed, specifically threatened, or abducted, so as to bring into\nplay one of several potentially applicable federal crim inal statutes, federal law enforce\xc2\xad\nment agencies may be authorized to play a role in his protection.\nT he Secretary o f State may designate any defector an official guest in order to make it a\nfederal offense to assault, harass, intim idate, coerce, imprison, threaten, kidnap, o r kill\nthe defector.\n\nJanuary 17, 1980\nM EM ORANDUM OPIN IO N FOR TH E\nACTIN G ASSOCIA TE ATTORNEY G EN ER A L\nThis responds to your inquiry regarding the authority of Department\nof Justice agencies to protect aliens who have defected to the United\nStates. You ask us to assume:\n(1)\n\nThat the defector is not an obvious source of intelligence\ninformation;\n(2) That the defector is within the United States and at or near\nan office of the Federal Bureau of Investigations (FBI) or\nthe Immigration and Naturalization Service (INS);\n(3) That the defector is seeking political asylum in the United\nStates;\n(4) That neither the Department of State nor any other govern\xc2\xad\nment agency has \xe2\x80\x9cfirm information\xe2\x80\x9d that the defector is\nthreatened with either forced repatriation or bodily harm;\nand\n348\n\n\x0c(5)\n\nThat \xe2\x80\x9cthe circumstances of the defection are such that a\nreasonable person might wish to take security precautions.\xe2\x80\x9d\n\nYou ask whether, in such a case, any component of the Department of\nJustice would have authority to fulfill a request made by the Depart\xc2\xad\nment of State to provide \xe2\x80\x9cprotective custody\xe2\x80\x9d for the defector.\nYou do not define \xe2\x80\x9cprotective custody.\xe2\x80\x9d We shall assume that it does\nnot involve taking any action against the defector\xe2\x80\x99s will, and that the\ndefector consents to any arrangement made for his protection. We shall\nalso assume that it involves at least protecting the defector against the\npossibility of physical attack. For the reasons stated below, we believe\nthat no component of the Department of Justice has authority even to\nprotect defectors against the possibility of physical attack in all cases of\nthe sort you describe, although certain agencies may have authority to\nprovide protection against the danger of physical attack, and perhaps a\nform of protective custody as well, in some cases.\n1. U.S. Marshals Service Acting Under Agreement With\nthe Department of State\n\nUnder 31 U.S.C. \xc2\xa7 686(a), \xe2\x80\x9c[a]ny executive department . . . or any\nbureau or office thereof . . . may place orders with any other such\ndepartment, establishment, bureau, or office, for . . . work, or services,\nof any kind that such requisitioned Federal agency may be in a position\nto supply or equipped to render . . . .\xe2\x80\x9d This provision would authorize\nany component of the Department of Justice to contract with the\nDepartment of State to perform the latter\xe2\x80\x99s security functions. Since the\nMarshals Service administers the federal witness protection program, 18\nU.S.C. prec. \xc2\xa7 3481, 28 C.F.R. \xc2\xa7 0.111(c), it is the agency most clearly\n\xe2\x80\x9cin a position to\xe2\x80\x9d protect defectors. Thus, if the Department of State\ncan itself provide protective custody for defectors, the Marshals Serv\xc2\xad\nice can also do so under an agreement with it.1\nIn most cases of the sort you describe, however, the Department of\nState lacks the authority even to protect defectors against the possibil\xc2\xad\nity of a physical attack. Under 22 U.S.C. \xc2\xa7 2666, qualified Department\nof State security officers \xe2\x80\x9care authorized to carry firearms for the\npurpose of protecting heads of foreign states, official representatives of\nforeign governments, and other distinguished visitors to the United\nStates . . . and members of the immediate families of any such\n1\nThe M arshals Service currently has an agreem ent w ith the D epartm ent o f State to \xe2\x80\x9c provide\nm anpow er and equipm ent as determ ined by the M arshals Service, in o rd e r to augm ent the State\nD epartm ent\'s capacity to carry out its protective functions in the most secure m anner.\xe2\x80\x9d "subject to\nm anpow er availability and norm al mission requirem ents.\xe2\x80\x9d This agreem ent provides that the D e p art\xc2\xad\nment o f State is to reim burse the M arshals Service for its w ork. W hether the requisitioning agency\nmust reimburse the agency providing the service depends on the term s o f the agencies* respective\nauthorization and appropriations statutes. Sec 13 Com p. G en. 234 (1934): 34 Com p. G en. 42 (1954).\n\n349\n\n\x0cpersons,\xe2\x80\x9d 2 No other statute gives the Department of State explicit au\xc2\xad\nthority to protect anyone. It might be suggested that visiting athletes\nand artists, for example, are \xe2\x80\x9cdistinguished foreign visitors\xe2\x80\x9d and perhaps\n\xe2\x80\x9cofficial representatives\xe2\x80\x9d of their governments; if they defect, \xc2\xa7 2666\nmight authorize their protection. Tw o arguments militate against this\ninterpretation, however.\nFirst, the original version of \xc2\xa7 2666, in effect until 1975, authorized\nsecurity officers of the Department of State to protect \xe2\x80\x9cheads of for\xc2\xad\neign states, high officials of foreign governments and other distin\xc2\xad\nguished visitors to the United States . . . and official representatives of\nforeign governments and of the United States attending international\nconferences, or performing special missions.\xe2\x80\x9d Pub. L. No. 84-104, 69\nStat. 188 (1955). There is no indication in the legislative history that the\n1975 rewording was intended to alter the scope of the statute. See S.\nRep. No. 337, 94th Cong., 1st Sess. 22 (1975). Because the term \xe2\x80\x9cdistin\xc2\xad\nguished visitors\xe2\x80\x9d was linked with \xe2\x80\x9chigh officials of foreign govern\xc2\xad\nments\xe2\x80\x9d in the original version of \xc2\xa7 2666 and even more clearly in its\nlegislative history, see, e.g., H.R. Rep. No. 468, 84th Cong., 1st Sess. 1\n(1955), \xe2\x80\x9cdistinguished visitors\xe2\x80\x9d must, we believe, be limited to leading\npolitical, diplomatic, and military figures. We doubt it can be extended\nto include all prominent foreign visitors who might happen to defect\nwhile in the United States. The original version of \xc2\xa7 2666 also suggests\nthat the \xe2\x80\x9cofficial representatives\xe2\x80\x9d protected are those \xe2\x80\x9cattending inter\xc2\xad\nnational conferences, or performing special missions.\xe2\x80\x9d Again, Congress\nseemed to have in mind official conferences concerned with political,\nmilitary, or diplomatic matters; one of the justifications for the bill was\nthe need \xe2\x80\x9cto guarantee the safety from compromise of the vast amount\nof highly classified material needed at an international conference.\xe2\x80\x9d S.\nRep. No. 552, 84th Cong., 1st Sess. 2 (1955). Congress may have\nintended to expand this category somewhat by omitting the reference\nto international conferences and special missions, but there is no reason\nto believe that \xe2\x80\x9cofficial representatives\xe2\x80\x9d includes persons other than\nthose acting directly on behalf of their respective governments.\nThe second argument reinforces this conclusion. In 1972 Congress\namended several statutes to make it a federal crime to assault, threaten,\nharass, kidnap, or kill \xe2\x80\x9cofficial guests.\xe2\x80\x9d Pub. L. No. 92-539, \xc2\xa7\xc2\xa7 101-301,\n86 Stat. 1070 (1972), amending 18 U.S.C. \xc2\xa7\xc2\xa7 112, 1116, 1201. Congress\ncreated this category of \xe2\x80\x9cofficial guests\xe2\x80\x9d because it wanted federal\ncriminal laws to \xe2\x80\x9coperate to protect the rights of visiting artists, aca\xc2\xad\ndemic and scientific groups, and other groups and individuals who\nought not be beyond the pale of Federal concern.\xe2\x80\x9d S. Rep. No. 1105,\n92d Cong., 2d Sess. 9 (1972). Congress thought that such visitors would\n2\nU nder 22 U.S.C. \xc2\xa7 2666, D epartm ent o f State security officers are also authorized to protect \xe2\x80\x9c the\nSecretary o f State, the D eputy Secretary o f State, official representatives o f the U nited States\nG ov ern m en t, and m em bers o f the im m ediate families o f any such persons.\'*\n\n350\n\n\x0cotherwise receive no federal protection against such offenses, see, e.g.,\nid. at 7; yet at the time, the predecessor of \xc2\xa7 2666 had been in effect for\n17 years. When Congress amended \xc2\xa72666 in 1975, it did not include\n\xe2\x80\x9cofficial guests\xe2\x80\x9d in the new version of the statute; it retained the term\n\xe2\x80\x9cofficial representatives.\xe2\x80\x9d This again suggests that Congress did not\nwish to authorize Department of State security officers to protect even\nsuch prominent foreign visitors as athletes, artists, and academics.3\nFor these reasons, we seriously doubt that the Department of State\nhas authority to request the Marshals Service to protect defectors who\nare neither leading figures in, nor direct representatives of, their gov\xc2\xad\nernments. Moreover, it is unlikely that an \xe2\x80\x9cofficial representative\xe2\x80\x9d\nwould retain his status if the country he purported to represent at\xc2\xad\ntempted to strip him of it. The Marshals Service would, of course, be\nable to protect \xe2\x80\x9cdistinguished foreign visitors\xe2\x80\x9d who defect 4\xe2\x80\x94presum\xc2\xad\nably a small proportion of the cases we are considering here.\n2. FBI Authority\n\nUnder 28 U.S.C. \xc2\xa7553 (1), (3), the FBI is empowered \xe2\x80\x9cto detect and\nprosecute crimes against the United States\xe2\x80\x9d and \xe2\x80\x9cto conduct such other\ninvestigations regarding official matters under the control of the D e\xc2\xad\npartment of Justice and the Department of State as may be directed by\nthe Attorney General.\xe2\x80\x9d W hatever authority these provisions may give\nto protect potential victims of federal crimes against whom a specific\nthreat has been made, we believe that they do not authorize the FBI to\nprotect defectors in the circumstances we are considering here. Com\xc2\xad\npare 28 U.S.C. \xc2\xa7553 with 18 U.S.C. \xc2\xa73481 note (specifically authorizing\nthe Attorney General to \xe2\x80\x9cprovide for the security o f \xe2\x80\x99 government\nwitnesses who testify against alleged participants in organized crim e.)5\n3 22 U.S.C. \xc2\xa7 2667 em pow ers D epartm ent o f State security officers "engaged in the perform ance o f\nthe duties prescribed in section 2666" to "arrest w ithout w arrant and deliver into custody any person\nviolating section . . . 112 o f title 18 in their presence o r if they have reasonable grounds to believe\nthat the person to be arrested has com m itted o r is com m itting such a violation.\xe2\x80\x9d See also 22 C .F .R .\n\xc2\xa72.1. U nder 18 U.S.C. \xc2\xa7 112, it is a crim e to assault, harass, intimidate, coerce, threaten, o r similarly\nharm foreign officials, internationally p rotected persons, o r official guests. F or reasons w e give in\nsection 5, infra, we believe that \xc2\xa72667 may enable D epartm ent o f State security officers to provide\nsome aid to defectors w ho have been specifically threatened o r harm ed. But for tw o reasons, \xc2\xa72667\ncannot be read to authorize D epartm ent o f State security officers to protect "official guests," o r others\nw ithin the scope o f \xc2\xa7 112, if they have not been specifically threatened. First, security officers w hose\nmission was to provide such protection w ould be "engaged in the perform ance o f . . . duties" not\nenum erated in \xc2\xa7 2666. Second, we doubt that the au th o rity to enforce a statute by arresting violators\nimplies the authority to protect persons w hen no specific threat has been made, especially w hen\nanother statute expressly authorizes the protection o f a smaller class o f persons.\n4 Indeed, the M arshals Service may already have this pow er under the existing agreem ent, sue\nnote I supra.\n5 T h e D irector o f C entral Intelligence, the A tto rn ey G eneral, and the C om m issioner o f Im m igration\nand N aturalization can authorize certain aliens to enter the U nited States, notw ithstanding o ther\nimmigration laws, if their entry "is in the interest o f national security o r essential to the furtherance of\nthe national intelligence mission." SO U.S.C. \xc2\xa7403h. Pursuant to this authority, the National Security\nCouncil and the D irecto r o f C entral Intelligence have established a program for dealing w ith defectors\nw ho are valuable to intelligence agencies. T he FBI plays a role in this program , but the program\nplainly omits authority for the FBI o r any o th er agency to house o r otherw ise maintain defectors o f\nthe sort you describe. This, too, suggests the FBI has no role in providing protective custody in the\ncircum stances w e are considering here.\n\n351\n\n\x0c3. The Attorney General\xe2\x80\x99s Authority To Enforce \xc2\xa7 215 of\nthe Immigration and Nationality Act\n\nUnder 8 U.S.C. \xc2\xa7 1103(a), the Attorney General is \xe2\x80\x9ccharged with the\nadministration and enforcement of [the Immigration and Nationality\nAct] and all other laws relating to the immigration and naturalization of\naliens.\xe2\x80\x9d Ordinarily, he carries out this responsibility through the Immi\xc2\xad\ngration and Naturalization Service. Section 215(a)(1) of the Act pro\xc2\xad\nvides:\nUnless otherwise ordered by the President, it shall be\nunlawful . . . for any alien to depart from . . . the\nUnited States except under such reasonable rules, regula\xc2\xad\ntions, and orders, and subject to such limitations and ex\xc2\xad\nceptions as the President may prescribe.\n8 U.S.C. \xc2\xa7 1185(a)(1). It appears to us that current regulations would\nnot, in general, authorize the Attorney General to prevent the depar\xc2\xad\nture of a defector in the circumstances you describe.6 But we believe\nthat \xc2\xa7 215(a)(1) would authorize regulations prohibiting the departure\nof, for example, an alien defector who was being repatriated either\nunder duress or in circumstances that cast doubt on the ability of the\nUnited States to protect defectors.7 If a regulation were issued that\nc T h e regulations, 22 C .F .R . \xc2\xa746.2, provide that \xe2\x80\x9c [n]o alien shall depart, or attem pt to depart, from\nthe U nited States if his d ep artu re w ould be prejudicial to the interests o f the United States under the\nprovisions o f [22 C .F .R .] \xc2\xa746.3.*\' Section 46.3 then specifies the categories o f aliens w hose departure\n\xe2\x80\x9c shall be deem ed prejudicial to the interest o f the U nited States." N one o f these categories will apply\nto all defectors o f the kind you describe, and few o f the categories are likely to apply to any. Section\n46.3(g), for exam ple, prohibits the d ep artu re o f \xe2\x80\x9c (a]ny alien w ho is needed in the United States as a\nw itness in . . . any criminal case under investigation o r pending in a court in the United States." An\ninvestigation o f a possible violation o f som e state o r federal crim inal statute, see section 5 infra, might\nbe w arran ted in some cases o f the kind you describe and the d efector might be needed as a witness at\nthat investigation. But if. as you specified, there is no \xe2\x80\x9c firm inform ation\xe2\x80\x9d that the defector is likely to\nbe abducted o r physically harm ed, a crim inal investigation will generally not be w arranted. Section\n46.3(h) prohibits the dep artu re o f \xe2\x80\x9c (a]ny alien w h o is needed in the United States in connection w ith\nany investigation o r proceeding being, o r soon to be. conducted by any official executive, legislative,\no r judicial agency in the U nited States o r by any governm ental com m ittee, board, bureau, commission,\no r body in the U nited Stales, w h eth er national, state, o r local.*\' 22 C .F .R . \xc2\xa7 46.3(h). This provision\nmight appear to allow a defector to be kept in the U nited States, if. for exam ple, a governm ent body\nplanned to ask him form ally about his reception by A m erican officials or about relatives or assets\nrem aining in the nation from w hich from he defected and possible diplom atic action concerning them.\nBut w e doubt that this provision w ould be construed to reach cases in w hich the formal inquiry is a\npretext and the true \xe2\x80\x9c prejudice to the interests o f the U nited States\xe2\x80\x99* stems not from the alien\'s failure\nto appear at the inquiry but from the m anner o r circum stances in w hich he departed. Invoking 22\nC .F .R . \xc2\xa746.3(k) w ould present the same problem. It effectively prohibits the departure o f an alien\nw hose case \xe2\x80\x9c involves circum stances o f a [character] sim ilar\xe2\x80\x9d to the o ther categories under \xc2\xa746.3.\nW hile not all o f these categories involve, for exam ple, national security or national defense, see, e.g.,\n22 C .F .R . \xc2\xa746.3 (0. (g). (h). they all do involve, at the least, aliens w hose personal characteristics\xe2\x80\x94\ntheir know ledge, intentions, o r legal liabilities\xe2\x80\x94make their d eparture prejudicial to the U nited States.\nN one involves an alien w ho does not wish to depart; none involves an alien w hose personal\nch aracteristics are unim portant but w ho w ould depart in a m anner or under circum stances w hich\nreflect unfavorably on the United States. F o r these reasons, we believe that new regulations should be\nissued if the A ttorney G eneral is to exercise his p o w er under \xc2\xa7 215(a)(1) to prevent the departure of\ndefectors in the circum stances you mention.\n7\nBy its terms, \xc2\xa7 2 1 5(a) grants the President full pow er to regulate the departure o f aliens, requiring\nonly that the regulations be reasonable. T h e legislative history o f \xc2\xa7 215(a) show s that C ongress\nC o ntinue d\n\n352\n\n\x0ceffectively prohibited the departure of a defector in the circumstances\nyou describe, we believe the \xc2\xa7 215(a)(1) might, in a particular case,\nauthorize the Attorney General to provide some form of protective\ncustody for that defector.\nNothing in \xc2\xa7 215(a)(1) suggests that the Attorney General must me\xc2\xad\nchanically refrain from acting until a defector whose departure he is\nauthorized to prevent is boarding an airplane. Implicit in the Attorney\nGeneral\xe2\x80\x99s duty to enforce the Immigration and Nationality Act is the\nauthority to use all reasonable and necessary means to see that it is\nenforced. See, e.g., United States v. Krapf 285 F.2d 647, 650 (3rd Cir.\n1961); United States v. Jones, 204 F.2d 745, 754 (7th Cir. 1953); United\nStates v. Kelly, 55 F.2d 67 (2d Cir. 1932). In addition, law enforcement\nauthorities customarily have great discretion to decide how to enforce\nthe law. Thus, the Attorney General may determine in a particular case\nthat in order to prevent a defector from departing he must, for exam\xc2\xad\nple, keep the defector under surveillance so that he can act quickly to\nprevent a departure or abduction. For similar reasons, the Attorney\nGeneral would, we believe, be entitled to screen a defector\xe2\x80\x99s contacts\nwith other people or to guard the defector in order to prevent attempts\nto coerce the defector to leave.8 These steps would appear to be the\nkind of protective custody you have in, mind. They would, we believe,\nbe authorized if they were part of a good faith effort to enforce\n\xc2\xa7 215(a)(1) in light of its underlying policies.\nIndeed, the structure of \xc2\xa7 215 suggests that the Attorney General has\nunusually broad discretion to decide which measures are necessary to\nprevent violations of that section. Section 215(a)(1) declares that it is\n\xe2\x80\x9cunlawful\xe2\x80\x9d for certain aliens to leave the United States but prescribes\nno penalties for violations. Those penalties, which applied both to aliens\nwho illegally entered or departed the United States and to American\ncitizens who attempted to enter or depart without passports, see Immi\xc2\xad\ngration and Nationality Act, Pub. L. No. 82-414, ch. 477, \xc2\xa7 215(a)(1),\n66 Stat. 190 (1952) (prior to 1978 amendment), were repealed by Con\xc2\xad\ngress in 1978. Pub. L. No. 95-426, \xc2\xa7 707(d), 92 Stat. 993. The legislative\nhistory of the repeal suggests that while Congress did not wish to\n\xe2\x80\x9cobstruct\xe2\x80\x9d or penalize the travel of American citizens, it intended to\nleave intact the President\xe2\x80\x99s authority to regulate the entry or departure\niniended the President 10 have \xe2\x80\x9c broad and com prehensive power.*\' \xe2\x80\x9c w ide discretion and w ide a u th o r\xc2\xad\nity o f action.*\' H.R. Rep. No. 485, 65th Cong., 2d Sess. 2-3 (1918) (accom panying Act of M ay 22,\n1918. Pub. L. No. 65-154. ch. 81, \xc2\xa7 1(a), 40 Slat. 559. w hich \xc2\xa7 2 1 5(a) essentially reenacted. See H.R.\nRep. No. 1365. 82d Cong.. 2d Sess. (1952)). T here is no reason to believe that C ongress did not intend\nthe President to use this pow er to pursue the im portant humanitarian and foreign policy aims that\nw ould be served by preventing the departure o f aliens w ho do not wish to leave. Indeed. C ongress\nenvisioned the President using his authority as a \xe2\x80\x9c counterstroke*\' against the \xe2\x80\x9c propaganda\xe2\x80\x9d efforts of\n"hostile nations." H.R. Rep. No. 485. 65lh Cong.. 2d Sess. 3 (1918).\nMIn this connection we em phasize o u r assum ption that the defector consents to the steps the\nA ttorney G eneral is taking to protect him. Ii is not at all clear that the A ttorney G eneral can legally\nisolate a defector in this w ay w ithout his consent. Also, we assume that the A ttorney G eneral will\ncom ply w ith any international obligations the U nited States has to permit contacts w ith defectors.\n\n353\n\n\x0cof aliens under \xc2\xa7 215(a)(1). See 124 Cong. Rec. 15770 (May 31, 1978)\n(remarks of Rep. Eilberg). Moreover, nothing in the language of\n\xc2\xa7 215(a)(1) suggests that it is intended to be merely admonitory. Com\xc2\xad\npare 8 U.S.C. \xc2\xa7 1185(a) with 36 U.S.C. \xc2\xa7 175 (flag code); see Holmes v.\nWallace, 407 F. Supp. 493, 494-97 (M.D. Ala. 1976). The primary\npurpose of \xc2\xa7 215(a)(1), then, must be to authorize preventive action,\neither administrative or judicial, against aliens who are about to depart\nillegally. Several other sections of the Immigration and Nationality Act\ngive great discretion to the administrators charged with their enforce\xc2\xad\nment, thus suggesting that Congress envisioned administrative not judi\xc2\xad\ncial action to enforce \xc2\xa7 215(a)(1); in addition, as we have said, the\nAttorney General is specifically charged with enforcing the Act, 8\nU.S.C. \xc2\xa7 1103(a). Since prevention is the only means of enforcing\n\xc2\xa7 215(a)(1), and the Attorney General is primarily responsible for en\xc2\xad\nforcing it, one may reasonably infer that the Attorney General can act\nmore vigorously to prevent violations of \xc2\xa7 215(a)(1) than he might act\nin preventing violations of statutes with more diverse enforcement\nmechanisms. This further supports the conclusion that in some cases\n\xc2\xa7 215(a)(1), by implication, authorizes the Attorney General to provide\ndefectors whose departure he can prevent with a form of protective\ncustody.\nSince Congress has not explicitly authorized such protective custody\nof defectors, however, compare 8 U.S.C. \xc2\xa7 1185(a)(1) with 18 U.S.C.\nprec. \xc2\xa7 3481, we would advise that the Department take steps to inform\nthe appropriations committees of the Senate and House that we regard\n\xc2\xa7 215(a)(1) as authority to do so in isolated instances and on a tempo\xc2\xad\nrary basis in connection with the enforcement of \xc2\xa7 215(a)(1).\n4. Delaying the Grant of Political Asylum\n\nUntil an alien is granted political asylum, the Immigration and Natu\xc2\xad\nralization Service has authority to detain him if he fits either of two\ncategories. We believe it is reasonable to assume that a defector who is\ndetained can be adequately protected. Under \xc2\xa7 235(b) of the Immigra\xc2\xad\ntion and Nationality Act, 8 U.S.C. \xc2\xa7 1225(b):\nEvery alien [with exceptions not relevant here] who may\nnot appear . . . at the port of arrival to be clearly and\nbeyond a doubt entitled to land shall be detained for\nfurther inquiry to be conducted by a special inquiry\nofficer.\nSee generally 8 C.F.R. \xc2\xa7 235.3(b). If an alien has legally entered the\ncountry, \xc2\xa7 235(b) cannot authorize his detention. But while attempting\nto defect, an alien may render himself technically deportable\xe2\x80\x94perhaps\nby violating a condition of his visa\xe2\x80\x94or may be about to render himself\n354\n\n\x0cdeportable. Section 242(a), 8 U.S.C. \xc2\xa7 1252(a), would then apply:\nPending a determination of deportability in the case of\nany alien . . . such alien may, upon warrant of the A ttor\xc2\xad\nney General, be arrested and taken into custody. Any\nsuch alien taken into custody may, in the discretion of the\nAttorney General and pending such final determination of\ndeportability, (1) be continued in custody, or (2) be re\xc2\xad\nleased under bond . . . or (3) be released on conditional\nparole. But such bond or parole . . . may be revoked at\nany time by the Attorney General, in his discretion, and\nthe alien may be returned to custody under the warrant\nwhich initiated the proceedings against him and detained\nuntil final determination of his deportability.[9]\nThe Supreme Court has rejected the view that \xc2\xa7 242(a) authorizes the\nAttorney General to detain an alien only if the alien\xe2\x80\x99s detention is\nnecessary to secure his appearance at a deportation hearing. See Carlson\nv. London, 342 U.S. 524, 534, 541 n.35 (1952). The Court has suggested\nthat an alien may be detained pending deportation proceedings when^\never the Attorney General has a \xe2\x80\x9creasonable apprehension\xe2\x80\x9d that releas\xc2\xad\ning the alien will injure the national interest, see id. at 538, 542, and has\nnot required that the \xe2\x80\x9creasonable apprehension\xe2\x80\x9d be supported with\nspecific threats or facts; broad generalizations suffice. See id. at 541,\n544. Moreover, as the Court has acknowledged, the legislative history\nof \xc2\xa7 242(a) makes plain Congress\xe2\x80\x99 intention to vest the Attorney G en\xc2\xad\neral with considerable discretion in deciding which aliens to detain. See\nid. at 540-41.10 Since the Attorney General can reasonably conclude\nthat the national interest would be injured if a defector were severely\nharassed or forcibly repatriated, we believe that in the cases we are\nconsidering here \xc2\xa7 242(a) would authorize the detention of a deportable\ndefector who consented11 to be detained.\nSince most aliens who have been granted political asylum will not be\ndeportable or excludable, it appears that the Immigration and Natural\xc2\xad\nization Service has authority to detain a defector only until he is\ngranted asylum. A defector who is entering the country is likely to\nsubmit his application for asylum to an immigration judge, \xe2\x80\x9cwho shall\nconsider that application in connection with an exclusion hearing. . .\n44 Fed. Reg. 21253, 21258 (1979). A defector who is already in the\nUnited States will probably submit his application to the district direc\xc2\xad\ntor. Id. In that case, regulations provide that:\nThe applicant shall appear in person before an immigra\xc2\xad\ntion officer prior to adjudication of the application. . . .\n9 C urrent regulations require that dep o rtatio n proceedings be form ally initiated before an alien is\ndetained under \xc2\xa7 242(a). 8 C .F .R . \xc2\xa7 242.2(a).\n10 T he G eneral C ounsel\'s office o f the Im m igration and N aturalization Service informs us that\nadm inistrative interpretations o f \xc2\xa7 242(a) essentially follow the Suprem e C ourt\'s.\n** See note 12 infra.\n\n355\n\n\x0cThe district director shall request the views of the De\xc2\xad\npartment of State before making his decision unless in his\nopinion the application is clearly meritorious or clearly\nlacking in substance. The district director may approve or\ndeny the application in the exercise of discretion.\n8 C.F.R. \xc2\xa7 108.2. An exclusion hearing is potentially an elaborate affair,\nsee 8 C.F.R. \xc2\xa7 236.2, and creates opportunity for delay. The district\ndirector, and the Department of State where it plays a role, might in\nthe normal course also contribute to delay. Nothing in the Immigration\nand Nationality Act prohibits an immigration judge or district director,\nin managing his docket, from giving priority to other cases over one\nwhich both parties are willing to delay. If the defector consents,12\nthen, and if he is otherwise lawfully in custody, the Immigration and\nNaturalization Service might delay action on his application for asylum\nand keep him in custody until any danger to him subsides and until, in\ndue course, his request for asylum is granted. This approach appears to\nauthorize protective custody for some of the defectors your memoran\xc2\xad\ndum describes.\n5. The Federal Law Enforcement Role if a\nDefector Is Assaulted or Threatened\n\nThe Department of Justice has authority to protect defectors of the\nkind you describe only in the circumstances we have discussed. You\nshould be aware, however, that once a defector is assaulted, harassed,\nspecifically threatened, or abducted, federal law enforcement agencies\nmay be authorized to play a role. Specifically, we believe, for reasons\nstated below, that the Secretary of State may designate a defector an\n\xe2\x80\x9cofficial guest\xe2\x80\x9d and in that way give federal law enforcement agencies\nclear jurisdiction over any assaults, harassment, threats, and similar\noffenses against the defector, without regard to the interstate character\nof the offense or to any of the other usual bases for federal law\nenforcement jurisdiction. This conclusion may be important to you in\ndealing with defections in the future.\nAs we noted earlier, several federal statutes make it a crime to injure\n\n12 If a d efecto r does not consent, he will be able to invoke portion o f \xc2\xa7 242(a) itself to gain relief:\nA ny c o u rt o f com petent jurisdiction shall have authority to review or revise any\nd eterm ination o f the A tto rn ey G eneral concerning detention, release on bond, or\nparole pending final decision o f d eportabilily upon a conclusive show ing in habeas\'\nc orpus proceedings that the A tto rn ey G eneral is not proceeding w ith such reasonable\ndispatch as may be w arran ted by the particular facts and circum stances in the case of\nany alien to determ ine deportability.\n8 U.S.C. \xc2\xa7 1252(a). He may also be able to raise serious constitutional questions about his continued\ndetention. See Stack v. Boyle. 342 U.S. I (1952); compare Carlson v. London. 342 U.S. 524 (1951). with\nBarcnhlalt v. United Stales. 360 U.S. 109. 128 (1959).\n1\n\n356\n\n\x0c\xe2\x80\x9cofficial guests\xe2\x80\x9d of the United States in these ways. For example,\n18 U.S.C \xc2\xa7 112 provides:\n(a) Whoever assaults, strikes, wounds, imprisons, or\noffers violence to a foreign official, official guest,\nor internationally protected person or makes any\nother violent attack upon the person or liberty of\nsuch person, or . . . makes a violent attack upon\nhis official premises, private accommodation, or\nmeans of transport or attempts to commit any of\nthe foregoing shall be fined not more than $5,000\nor imprisoned not more than three years, or both.\n(b) Whoever willfully\xe2\x80\x94\n(1) intimidates, coerces, threatens, or harasses a\nforeign official or an official guest or . . .\n(2) attempts to intimidate, coerce, threaten, or\nharass a foreign official or an official guest . . .\n*\n\n*\n\n*\n\n*\n\n*\n\nshall be fined not more than $500 or imprisoned not more\nthan six months, or both.\nOther statutes make it a federal offense unlawfully to kill or attempt to\nkill an official guest, id. \xc2\xa7 1116(a), to kidnap an official guest, id.\n\xc2\xa7 1201(a)(4), or to threaten to assault, kidnap, or kill an official guest,\nwhether or not in connection with an extortionate demand, id. \xc2\xa7 878 (a),\n(b). For purposes of applying these statutes, an official guest is defined\nas \xe2\x80\x9ca citizen or national of a foreign country present in the United\nStates as an official guest of the Government of the United States\npursuant to designation as such by the Secretary of State.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 1116(b)(6).13 We believe that the Secretary of State can designate a\ndefector as an official guest solely in order to bring him within the\ncoverage of these criminal statutes, thus enabling federal law enforce\xc2\xad\nment agencies14 to act against anyone who assaults, threatens, harasses,\ncoerces, kidnaps, or otherwise similarly injures a defector.\nAs we have noted, Congress created the category of official guests\nbecause it wanted federal criminal law to \xe2\x80\x9coperate to protect the rights\nof visiting artists, academic and scientific groups,\xe2\x80\x9d and similar groups\nand individuals. S. Rep. No. 1105, 92d Cong., 2d Sess. 9 (1972). Certain\naspects of the legislative history suggest that Congress did not intend to\npermit foreign visitors to be classified as official guests simply because\nthey were threatened. For example, in suggesting to Congress the\n13 T he Secretary o f State has delegated his authority to designate official guests to the D eputy\nU nder Secretary o f State for M anagement. 22 C .F .R . \xc2\xa72.4.\n14 As we have said the FBI has general authority \xe2\x80\x9c to detect and prosecute crim es against the\nUnited States" and to conduct certain o th er investigations. 28 U.S.C. \xc2\xa7 553 (1), (3). D epartm ent of\nState security officers are specifically authorized, \xe2\x80\x9c w hile engaged in the perform ance o f the duties\nprescribed" by statute, see pp. 2-4 supra, \xe2\x80\x9c to arrest w ithout w arrant and deliver into custody any\nperson violating section . . . 112 o f title 18 in their presence o r if they have reasonable grounds to\nbelieve that the person to be arrested has com m itted o r is com m itting such a violation.\'* O ther law\nenforcem ent agencies have some authority to arrest persons they reasonably believe t<S have com m it\xc2\xad\nted felonies. See. e.g.. 18 U.S.C. \xc2\xa7 3056(a) (Secret Service).\n\n357\n\n\x0clanguage that became the definition of \xe2\x80\x9cofficial guest,\xe2\x80\x9d the then Secre\xc2\xad\ntary of State said, \xe2\x80\x9cThis will allow me to designate individuals or\ngroups of individuals who are here for important international sports or\nother events. . . . This would accord protection to foreign nationals\nwho visit the United States for such special reasons as to compete in\ninternational sports events.\xe2\x80\x9d Id. at 15-16. In general, Congress focused\non threats to visitors which were, at least in part, the result of the\nvisitors\xe2\x80\x99 special role in activities of interest to both their country and\nours. Congress was also concerned with the implicit obligation we have\nto their respective countries to protect such visitors. If these were the\nbases of Congress\xe2\x80\x99 decision to make it a crime to assault or threaten\n\xe2\x80\x9cofficial guests,\xe2\x80\x9d that category cannot be extended to reach ordinary\nvisitors who are threatened only because they have defected.15\nThe legislative history, however, contains no clear references to\nreciprocity, or to the fear that Americans will be inadequately pro\xc2\xad\ntected abroad; this suggests that Congress may have been concerned\nless with international obligations than with our international reputa\xc2\xad\ntion. That reputation would be injured if a defector were attacked or\nthreatened by the nation from which he defected. Moreover, while the\nlegislative history does not refer to the danger that defectors might be\nforcibly repatriated, Congress clearly had in mind politically motivated\nthreats and acts against foreign visitors; the killing of Israeli athletes at\nMunich in 1972 was repeatedly cited as an example of the sort of crime\nwhich would have to be left entirely to the states if federal criminal\nlaws were not extended to official guests. See, e.g., id. at 9, 15. And\nnothing in the statutes or their legislative history makes an exception\nfor politically motivated violence or coercion by the nation of which\nthe guest is a citizen.\nFinally, Congress carefully considered the issues of federalism in\xc2\xad\nvolved in creating a category of \xe2\x80\x9cofficial guests\xe2\x80\x9d and allowing the\nfederal government, in addition to the states, to punish certain crimes\nagainst them. For example, the sponsor of the provision including\n\xe2\x80\x9cofficial guests\xe2\x80\x9d in the several federal criminal statutes gave, as his\nprincipal reason, \xe2\x80\x9cState governments simply cannot cope alone with\ncrimes involving international politics and diplomacy.\xe2\x80\x9d Id. at 9. In\nlanguage we have already quoted, the Senate Committee noted that the\nprotection would extend generally to \xe2\x80\x9cgroups and individuals who\n16 We do not believe that the Secretary of State must designate a visitor an official guest before he\nenters the country. The statutory definition arguably requires that an official guest be \xe2\x80\x9cpresent in the\nUnited States . . . pursuant to designation,\xe2\x80\x9d suggesting that a person who is present in the United\nStates on his own initiative cannot qualify as an official guest. This language is not, however,\nunequivocal; it does not specify that an official guest must have entered the country pursuant to a\ndesignation. The phrase \xe2\x80\x9cpursuant to designation as such by the Secretary of State\xe2\x80\x9d may, we believe,\nbe read simply to modify \xe2\x80\x9cofficial guest,\xe2\x80\x9d describing how one attains that status. Moreover, the\nlegislative history indicates that the category of "official guest\xe2\x80\x9d was created precisely in order to\nprovide a federal role in enforcing laws making it illegal to assault, harass, or kidnap foreign nationals\nvisiting the United States. There seems to be little reason to insist that the Secretary must foresee,\nbefore the visitors enter the country, that they will be threatened.\n\n358\n\n\x0cought not be beyond the pale of Federal concern.\xe2\x80\x9d Id. This emphasis\non federalism suggests that the defining characteristic of official guests\nis their importance to foreign policy and related concerns of the federal\ngovernment; &ie treatment of defectors is at least as important to\nforeign policy as the treatment of visiting artists and athletes. In addi\xc2\xad\ntion, if there is a possibility that a defector will be harassed or coerced\nby the nation from which he has defected, the federal government is\nlikely to be involved in negotiations and diplomatic maneuvers which\nmust be coordinated with law enforcement efforts undertaken on the\ndefector\xe2\x80\x99s behalf. For these reasons, we believe that the Secretary of\nState can designate any defector an official guest in order to make it a\nfederal offense to assault, harass, intimidate, coerce, imprison, threaten,\nkidnap, or kill the defector.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n359\n\n\x0c'