b'Certification of Peace Corps Response Volunteers\nfor Noncompetitive Eligibility for Federal\nEmployment Under Executive Order 11103\nUnder Executive Order 11103, which describes a \xe2\x80\x9cfull term of service\xe2\x80\x9d as \xe2\x80\x9capproximately\ntwo years\xe2\x80\x9d for purposes of noncompetitive eligibility for federal employment, the Director of the Peace Corps may not issue certificates of satisfactory service to volunteers in the Peace Corps Response program (\xe2\x80\x9cPCRVs\xe2\x80\x9d) who serve between three and\ntwelve months.\nThe Director may not issue certificates of satisfactory service to PCRVs under the\nexception in Executive Order 11103 for those who do not complete a full term \xe2\x80\x9cdue to\ncircumstances beyond their control.\xe2\x80\x9d\nJanuary 9, 2013\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nPEACE CORPS\nIn Executive Order 11103, the President authorized the Director of the\nPeace Corps (\xe2\x80\x9cDirector\xe2\x80\x9d) to issue certificates of satisfactory service to\nreturning Peace Corps volunteers. These certificates provide volunteers\nwith one year of noncompetitive eligibility for civil service appointments\nin the Executive Branch. See Exec. Order No. 11103, 3 C.F.R. 173 (1963\nSupp.) (\xe2\x80\x9cOrder\xe2\x80\x9d); 5 U.S.C. \xc2\xa7 3301 (2006) (\xe2\x80\x9cThe President may . . . prescribe . . . regulations for the admission of individuals into the civil service[.]\xe2\x80\x9d); id. \xc2\xa7 3302 (\xe2\x80\x9cThe President may prescribe rules governing the\ncompetitive service.\xe2\x80\x9d). The Order provides that only those volunteers\n\xe2\x80\x9cwho have completed a full term of service (approximately two years)\xe2\x80\x9d\nare eligible for these certificates, but also allows the Director to issue\ncertificates to volunteers who complete \xe2\x80\x9ca lesser period of satisfactory\nservice if, in the judgment of the Director . . . their service was of sufficient duration to demonstrate their capability to complete satisfactorily a\nfull term, and . . . their failure to complete a full term was due to circumstances beyond their control.\xe2\x80\x9d Order \xc2\xa7 3.\nYou asked whether the Director may issue certificates of satisfactory\nservice not only to traditional Peace Corps volunteers, who serve terms of\napproximately 27 months, but also to volunteers in the Peace Corps Response program, a program in which volunteers complete shorter terms,\n1\n\n\x0c37 Op. O.L.C. 1 (2013)\n\ntypically between three and twelve months. 1 Specifically, you asked\nwhether Peace Corps Response Volunteers (\xe2\x80\x9cPCRVs\xe2\x80\x9d) complete the\nrequired \xe2\x80\x9cfull term of service\xe2\x80\x9d under the Order by fulfilling a three-totwelve-month service obligation, notwithstanding the parenthetical in the\nOrder describing a \xe2\x80\x9cfull term of service\xe2\x80\x9d as \xe2\x80\x9capproximately two years.\xe2\x80\x9d\nId. If not, you requested that we also consider whether the Director could\nissue certificates to PCRVs based on the Order\xe2\x80\x99s exception for those who\ndo not complete a full term \xe2\x80\x9cdue to circumstances beyond their control.\xe2\x80\x9d\nId. We conclude that, under the terms of the Executive Order, the Director\nmay not issue certificates to PCRVs under either the full term of service\nrequirement or the circumstances beyond their control exception.\nI.\nThe Peace Corps Response program began in 1996 as a short-term volunteer program for those who had previously served as traditional Peace\nCorps volunteers. Peace Corps Letter at 2. The Peace Corps has since\nopened the program to qualified individuals with no prior Peace Corps\nexperience, but the other features of the program have remained the same.\nId. PCRVs complete assignments that are more specialized than those\ngiven to traditional volunteers. Their assignments \xe2\x80\x9ccan be as short as three\nmonths and generally do not exceed 12 months.\xe2\x80\x9d Id. at 2. Aside from\nthe shorter length of service and specialized work assignments, however,\nboth the terms of PCRVs\xe2\x80\x99 service and the benefits they receive are comparable to those of traditional volunteers. The only benefit that traditional\nvolunteers currently receive that PCRVs do not is the certificate of satisfactory service for noncompetitive eligibility issued by the Director under\nExecutive Order 11103.\nExecutive Order 11103 states that \xe2\x80\x9cthe head of any agency in the Executive Branch may appoint in the competitive service\xe2\x80\x9d (and, if the agency\n\n1 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal\nCounsel, from Bill Rubin, General Counsel, Peace Corps (June 19, 2012) (\xe2\x80\x9cPeace Corps\nLetter\xe2\x80\x9d). We also received the views of the Office of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d)\nregarding the issues addressed in this opinion. See Memorandum for John E. Bies, Deputy\nAssistant Attorney General, Office of Legal Counsel, from Elaine Kaplan, General\nCounsel, Office of Personnel Management (Oct. 16, 2012) (\xe2\x80\x9cOPM Letter\xe2\x80\x9d).\n\n2\n\n\x0cCertification of Peace Corps Response Volunteers for Noncompetitive Eligibility\n\nhas \xe2\x80\x9can established merit system in the excepted service,\xe2\x80\x9d may appoint in\nthe excepted service) \xe2\x80\x9cany person who is certified by the Director of the\nPeace Corps as having served satisfactorily as a Volunteer or Volunteer\nLeader under the Peace Corps Act\xe2\x80\x9d and who passes whatever examination\nis prescribed. Order \xc2\xa7\xc2\xa7 1, 2. For \xe2\x80\x9ca period of one year after\xe2\x80\x9d certified\nvolunteers complete their service (subject to extension under certain\nconditions), id. \xc2\xa7 4, they are eligible to attain employment in the Executive Branch \xe2\x80\x9coutside of the competitive examining process,\xe2\x80\x9d OPM Letter\nat 3. This certification provides recipient volunteers a \xe2\x80\x9csignificant\xe2\x80\x9d advantage in the federal hiring process. Id.\nSection 3 of the Order defines persons whom the Director may certify\nfor a noncompetitive appointment:\nCertificates of satisfactory service for the purposes of this Order\nshall be issued only to persons who have completed a full term of\nservice (approximately two years) under the Peace Corps Act: Provided, That such certificates may be issued to persons who have\ncompleted a lesser period of satisfactory service if, in the judgment\nof the Director of the Peace Corps, (1) their service was of sufficient\nduration to demonstrate their capability to complete satisfactorily a\nfull term, and (2) their failure to complete a full term was due to circumstances beyond their control.\nOrder \xc2\xa7 3.\nII.\nThe first issue is whether PCRVs qualify for a certificate of satisfactory\nservice under the Order because they have completed \xe2\x80\x9cfull term[s] of\nservice under the Peace Corps Act\xe2\x80\x9d by virtue of completing their three-totwelve-month assignments as PCRVs, even though PCRVs\xe2\x80\x99 terms are\nconsiderably shorter than the approximately 27-month terms served by\ntraditional Peace Corps volunteers. 2 Based on both the text and the conOPM concluded that PCRVs cannot receive certificates of satisfactory service based\nin part on its view that PCRVs are not \xe2\x80\x9cvolunteers\xe2\x80\x9d as the term is used in the Order. OPM\nLetter at 2. You responded that the Peace Corps considers PCRVs \xe2\x80\x9cvolunteers\xe2\x80\x9d under the\nPeace Corps Act and noted that \xe2\x80\x9cthe Executive Order . . . [does not] distinguish[] between\n2\n\n3\n\n\x0c37 Op. O.L.C. 1 (2013)\n\ntext of Executive Order 11103, we conclude that the Peace Corps Response program\xe2\x80\x99s three-to-twelve-month term does not qualify as a \xe2\x80\x9cfull\nterm of service\xe2\x80\x9d as the Order uses that phrase.\nTo begin with, the text of the Order indicates that the President expected that volunteers receiving noncompetitive eligibility would have\ncompleted terms of service more substantial than the three-to-twelvemonth assignments PCRVs typically receive. The parenthetical immediately following the full term of service requirement states that a full term\nruns \xe2\x80\x9capproximately two years.\xe2\x80\x9d Order \xc2\xa7 3. We recognize, as you suggest, that this language could be read as either prescriptive (requiring that\na full term of service be approximately two years) or descriptive (noting\nthat the average term of service for a volunteer at the time of the Order\nwas approximately two years). See Peace Corps Letter at 2. But we do\nnot think characterizing the parenthetical as descriptive changes the\nanalysis. Even if the parenthetical simply describes President Kennedy\xe2\x80\x99s\nunderstanding of the length of a full term of service when he signed the\nOrder, it nonetheless indicates that the President intended to confer\nnoncompetitive eligibility on those Peace Corps volunteers who serve\napproximately two years (or who otherwise qualify through the circumstances beyond their control exception). In light of this parenthetical, it is\nunclear that the President would have extended noncompetitive eligibility\nto PCRVs had that short-term program existed in 1963. We believe that a\n\xe2\x80\x9cfull term of service\xe2\x80\x9d under the Order is best read to mean approximately\ntwo years of service.\nThe context of the issuance of the Order provides considerable support\nfor this interpretation. When President Kennedy signed the Order, he\nwould have understood a full term of service to run approximately two\nyears. Before the Peace Corps was established, a report prepared for the\nPresident described the proposed volunteer program as having a \xe2\x80\x9cusual\nlength of service . . . [of ] at least one year, preferably two, and perhaps\nin some cases three or more years.\xe2\x80\x9d Sargent Shriver, Report to the Presicategories of Volunteers.\xe2\x80\x9d E-mail for John E. Bies, Deputy Assistant Attorney General,\nOffice of Legal Counsel, from Jan Miller, Peace Corps, Re: Response to OPM opinion\n(Nov. 26, 2012). Because our analysis does not turn on whether PCRVs are volunteers\nwithin the meaning of the Order, we need not resolve this definitional issue and assume\nfor purposes of this opinion that PCRVs are \xe2\x80\x9cvolunteers.\xe2\x80\x9d\n\n4\n\n\x0cCertification of Peace Corps Response Volunteers for Noncompetitive Eligibility\n\ndent on the Peace Corps at 10 (Feb. 22, 1961), http://www.jfklibrary.org\n(folder title \xe2\x80\x9cPeace Corps: Shriver report and recommendations, February\n1961\xe2\x80\x9d; digital identifier JFKPOF-085-014-p0037). By the time the Peace\nCorps issued its first annual report in July 1962, the idea that volunteers\nwould serve a two-year term had become reality. The report explains that\nwhen the Peace Corps was first established, \xe2\x80\x9cit was decided\xe2\x80\x9d that \xe2\x80\x9c[v]olunteers would serve for two years, without salary or draft exemption.\xe2\x80\x9d\nSee Peace Corps: 1st Annual Report to Congress for the Fiscal Year\nEnded June 30, 1962 at 8 (July 1962), http://www.jfklibrary.org (folder\ntitle \xe2\x80\x9cPeace Corps: First annual report, July 1962\xe2\x80\x9d; digital identifier\nJFKPOF-086-003-p0009). Thus, a two-year term was standard by the\ntime President Kennedy signed the Order in April 1963.\nBackground documentation about the Order itself also supports our\nconclusion that the President contemplated that a full term of service\nunder the Order would be approximately two years. When the Director of\nthe Bureau of the Budget 3 transmitted the proposed Order to the Attorney General for review in March 1963, he described the Order as \xe2\x80\x9cpermit[ting] the Peace Corps to issue certificates of satisfactory service only\nto persons who had completed a full term of 24 months of service,\xe2\x80\x9d unless\nthe exception for circumstances beyond the volunteer\xe2\x80\x99s control applied.\nLetter for Robert F. Kennedy, Attorney General, from Arthur B. Focke,\nGeneral Counsel, Bureau of the Budget at 2 (Mar. 12, 1963) (emphasis\nadded). This reflects an understanding within the Kennedy Administration\nthat noncompetitive eligibility depended on two years of service. We\nbelieve the Order is best interpreted in a manner consistent with its text\nand these indications of President Kennedy\xe2\x80\x99s understanding of the Order\nat the time he signed it, particularly in light of the President\xe2\x80\x99s authority to\nrevise this executive order at any time. See Memorandum for Kenneth A.\nLazarus, Associate Counsel to the President, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Applicability of\n3 C.F.R. Part 100 to the President and Vice President (Dec. 19, 1974)\n(interpreting an executive order in a manner consistent with public state-\n\n3 The Bureau of the Budget was the predecessor agency of the Office of Management and Budget. See Reorg. Plan No. 2 of 1970, 35 Fed. Reg. 7959, reprinted in\n5 U.S.C. app. 640 (2006).\n\n5\n\n\x0c37 Op. O.L.C. 1 (2013)\n\nments President Johnson made at the time of the Order); cf. John R. Sand\n& Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (\xe2\x80\x9cstare decisis in\nrespect to statutory interpretation has special force, for Congress remains\nfree to alter what we have done\xe2\x80\x9d (internal quotation marks omitted)).\nFinally, we note that this interpretation of the Order would make its\nservice commitment similar to that required in other Executive Branch\nprograms that confer noncompetitive eligibility (typically at least a year,\nif not more). See, e.g., 5 C.F.R. \xc2\xa7 315.607 (2012) (providing that Peace\nCorps personnel (not volunteers) may be eligible for a noncompetitive\nappointment if they complete \xe2\x80\x9cno less than 36 months of continuous\nservice\xe2\x80\x9d); id. \xc2\xa7 315.610 (2012) (providing that certain National Guard\ntechnicians may be eligible if they have served \xe2\x80\x9cat least 3 years as a\ntechnician\xe2\x80\x9d); Exec. Order No. 11219, \xc2\xa7 1(c), 3 C.F.R. 127, 127 (1965\nSupp.) (providing that present or former career officers or employees of\nthe Foreign Service may be eligible upon completing \xe2\x80\x9cat least one year of\ncontinuous service\xe2\x80\x9d); 5 C.F.R. \xc2\xa7 315.606 (2012) (same); id. \xc2\xa7 315.609(b)\n(2012) (providing that career employees of the Panama Canal Commission may be eligible if they \xe2\x80\x9cserved continuously for at least 1 year\xe2\x80\x9d); id.\n\xc2\xa7 315.608 (2012) (providing that certain family members of federal employees officially assigned to an overseas area may be eligible after their\nsponsoring federal employees complete \xe2\x80\x9c52 weeks of creditable overseas\nservice\xe2\x80\x9d (except in extraordinary circumstances)).\nTo be sure, the President has delegated to the Director broad authority\nto prescribe the \xe2\x80\x9cterms and conditions of the service of volunteers,\xe2\x80\x9d see\n22 U.S.C. \xc2\xa7 2504(a) (2006); see also Exec. Order No. 12137, 3 C.F.R.\n389 (1979 Comp.), and nothing in the Peace Corps Act or the Order\nwould prevent the Director from changing the length of service for both\ntraditional volunteers and PCRVs. Peace Corps Letter at 1. We do not\nthink, however, that the Director\xe2\x80\x99s general authority to change the length\nof volunteers\xe2\x80\x99 service also includes the authority to modify a presidential\nunderstanding, conveyed by the Order, of the length of service that is\nnecessary to earn noncompetitive eligibility.\nFor these reasons, we conclude that that the Order is best read to permit\nthe Director to confer noncompetitive eligibility only on those volunteers\nwho complete approximately two years of service or who satisfy the terms\nof the circumstances beyond their control exception.\n6\n\n\x0cCertification of Peace Corps Response Volunteers for Noncompetitive Eligibility\n\nIII.\nYou also asked us to consider whether the Director may certify PCRVs\nfor noncompetitive eligibility based on the exception for volunteers who\ncomplete \xe2\x80\x9ca lesser period of satisfactory service,\xe2\x80\x9d but who, \xe2\x80\x9cin the judgment of the Director of the Peace Corps,\xe2\x80\x9d (1) have provided \xe2\x80\x9cservice . . .\nof sufficient duration to demonstrate their capability to complete satisfactorily a full term,\xe2\x80\x9d and (2) have failed to complete a full term \xe2\x80\x9cdue to\ncircumstances beyond their control.\xe2\x80\x9d Order \xc2\xa7 3.\nIn our view, this exception should not be read as a general rule that\nPCRVs who complete their entire assignments receive noncompetitive\neligibility. The text of the language authorizes the Director to make exceptions in \xe2\x80\x9ccircumstances beyond [the] control\xe2\x80\x9d of the volunteer, indicating that this authority is to be used on an individualized basis when unanticipated events require volunteers to truncate service otherwise expected\nto last \xe2\x80\x9cfull terms\xe2\x80\x9d of approximately two years. That text does not fit the\ncircumstances presented here. By agency design, a PCRV\xe2\x80\x99s service lasts\nbetween three and twelve months; and a PCRV\xe2\x80\x99s service does not terminate prematurely based on circumstances beyond his or her control.\nMoreover, certifying the entire class of PCRVs for noncompetitive eligibility under this exception would be inconsistent with agency practice.\nYou have informed us that the Peace Corps has long implemented this\nexception on a case-by-case basis, for example, where a changed political\nclimate makes a volunteer\xe2\x80\x99s assigned country unsafe, where a volunteer\nhas been a victim of sexual assault, or where some similarly grave, unforeseen circumstance arises. This consistent practice comports with the\nbest reading of this exception. 4 For these reasons, we conclude that the\n4 Under the Peace Corps\xe2\x80\x99 established practice, PCRVs also would not satisfy the exception\xe2\x80\x99s first requirement\xe2\x80\x94that volunteers complete service of \xe2\x80\x9csufficient duration to\ndemonstrate their capability to complete . . . a full term\xe2\x80\x9d as the Order uses that phrase\n(i.e., approximately two years). Order \xc2\xa7 3. Although nothing in the Order limits the\nDirector\xe2\x80\x99s discretion to determine what constitutes service of \xe2\x80\x9csufficient duration,\xe2\x80\x9d you\nhave informed us that the Peace Corps has long used one year of service\xe2\x80\x94the upper limit\nof a Peace Corps Response term\xe2\x80\x94as a benchmark to qualify for the exception. We\nunderstand that, until two years ago, the Peace Corps required volunteers to serve at least\ntwelve months before they could be considered for a certificate under the exception. You\nexplained that the Peace Corps will now consider volunteers with less than a year of\n\n7\n\n\x0c37 Op. O.L.C. 1 (2013)\n\nexception does not provide a basis for the Director to confer noncompetitive eligibility on PCRVs.\nVIRGINIA A. SEITZ\nAssistant Attorney General\nOffice of Legal Counsel\n\nservice in certain extraordinary circumstances, but that, as your guidelines note, \xe2\x80\x9cnormally at least twelve consecutive months, including training,\xe2\x80\x9d will be required to qualify.\nSee MS 285 Volunteer Description of Service and Certificate of Group Health Coverage\n\xc2\xa7 5.3 (Aug. 26, 2011), http://files.peacecorps.gov/manuals/manual/200_Volunteers/280289_Volunteer_Transfers_Completions_of_Service_Termination/MS_285/Volunteer_\nDescription_of_Service_and_Certificate_of_Group_Health_Coverage.pdf (last visited\nSept. 11, 2014).\n\n8\n\n\x0c'


b"Supplementary Discussion of the President\xe2\x80\x99s Powers Relating\nto the Seizure of the American Embassy in Iran\nU n d er th e V ien n a C o n v e n tio n on D ip lo m atic R elations, d ip lo m ats are not su b je ct to any\nform o f arre st o r d e te n tio n even in case o f arm ed co n flict, th o u g h th eir m o v em en ts\nm ay be restricted . Ira n \xe2\x80\x99s c o n d u c t m ight be invoked in this case as a g ro u n d for\nsu sp en d in g th e C o n v e n tio n , in w h ic h case n o n -fo rcib le reprisals ag ain st its d ip lo m a ts in\nthis c o u n try m ay be used.\nT h e P resid en t m ay use his c o n stitu tio n a l p o w e r to p ro te c t A m erican s ab ro ad , su b je ct to\nth e c o n su lta tio n an d re p o rtin g req u irem en ts o f the W ar P o w e rs R esolution. W hile not\nu n co n stitu tio n al o n th eir face, these req u irem en ts m ay h a v e a p p licatio n s w h ic h raise\nco n stitu tio n al q u estio n s insofar as th ey lim it th e P re sid e n t\xe2\x80\x99s p o w e r as C o m m an d er-in C hief.\nT h e In tern atio n al E m e rg e n c y E co n o m ic P o w ers A c t and th e N atio n al E m e rg en cies A c t\nto g e th e r a u th o riz e th e b lo ck in g o f Iranian assets and th e su b seq u en t licensing o f\np a rticu lar tran sactio n s. T h e se sta tu tes specify th e p ro c e d u re s to be follow ed in the\nev en t su ch a co u rse is fo llow ed.\n\nNovem ber 11, 1979\nM EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L\nIn response to your request we are providing additional details on\nsome of the m atters discussed in our memorandum o f N ovem ber 7,\n1979.\nI. Treatment of Iranian Diplomats in the United States\nT he Vienna C onvention on Diplom atic Relations, Apr. 18, 1961, 23\nU.S.T. 3227, T.I.A .S. No. 7502, ratified by Iran, the United States and\nall m ajor countries o f the world, codifies the law in this area. It is\nassumed to be self-executing and thus part o f dom estic law as w ell.1\nA rticle 29 provides that a diplomat shall not be liable to any form of\narrest or detention. Im m unity continues even in case o f armed conflict\n(Art. 39.2). T he United States vigorously opposed the latter provision\nat the time o f drafting, stating that it was unrealistic and did not\nrepresent universal practice. T he delegation pointed out that almost\n'See, e.g., L etter from Assistant A tto rn ey G eneral Dixon to the A cting Legal A dviser, M ay 4, 1973,\nin the 1973 Digest o f U nited States Practice in In t\xe2\x80\x99l L. 143, 144. T h e enactm ent o f the D iplom atic\nRelations A ct, P.L. 95-393, 22 U.S.C. \xc2\xa7254a et seq. (Supp. II 1978), does not affect this conclusion.\nT he A ct does not purport to apply to stituations covered by the C onvention but com plem ents the\nC onvention by prescribing rules for non-parties and for m atters not covered explicity in the C onven\xc2\xad\ntion, such as liability insurance.\n\n123\n\n\x0cevery governm ent involved in W orld W ar II placed restrictions of\nsome kind on the m ovem ent o f enemy diplomats and the w ithdraw al of\ntheir property. T he United States proposed an am endm ent w hich might\nwell have applied here. It w ould have authorized the host state in time\no f national em ergency, civil strife, or armed conflict to institute appro\xc2\xad\npriate measures o f control with respect to mission funds and persons\nenjoying privileges and immunities and their property, including protec\xc2\xad\ntive custody to insure their safety. It was defeated, how ever, by a vote\nof 38 to 6 with 26 abstentions. 7 M. W hitem an, Digest o f I n t\xe2\x80\x99l Law 441.\nDespite this record there are a num ber o f approaches which can be\nused to mitigate the prohibition mentioned.\nA. Protective Custody\n\nA rticle 26 makes freedom o f travel subject to \xe2\x80\x9c laws and regulations\nconcerning zones entry into w hich is prohibited or regulated for rea\xc2\xad\nsons o f national security.\xe2\x80\x9d T he dom estic legislative history o f the C on\xc2\xad\nvention shows that \xe2\x80\x9cprotective custody\xe2\x80\x9d could be justified under this\nprovision. T he State D epartm ent Legal A dviser testified before the\nSenate Foreign Relations Com m ittee that this provision could be used\nin situations involving armed conflict to justify placing diplomats in\nprotective custody. H e pointed out that while A rticle 29 prohibits\narrest, it also provides that the host state shall take appropriate steps to\nprevent attacks on a diplom at\xe2\x80\x99s person, freedom, and dignity. 7 M.\nW hiteman, supra at 442. A rticle 26 is not limited to times o f armed\nconflict. It is, in fact, used on an ongoing basis to restrict travel of\nforeign diplom ats particularly w here their countries impose restrictions\non United States diplomats. Despite the reference to \xe2\x80\x9c laws and regula\xc2\xad\ntions\xe2\x80\x9d in A rticle 26, the State D epartm ent informs us that there is no\nspecial procedure for imposing such restrictions. T he appropriate em\xc2\xad\nbassy is merely informed o f the restrictions.\nT he protective custody approach has one distinct advantage in that it\nmay not technically constitute an arrest and authority can be gleaned\nfrom the text and dom estic legislative history o f the Convention. As we\nshow below, it may be that we are no longer bound by the inhibition of\nA rticle 29 against arrest. This would, how ever, merely eliminate the\nprohibition; it w ould not, in itself, provide a valid ground under domes\xc2\xad\ntic law for arrest w hich presumably could then be challenged for\nillegality as any other arrest may be.\nB. Reciprocity\n\nA rticle 47.2(a) permits us to apply any o f the provisions o f the\nConvention restrictively because o f a restrictive application o f a provi\xc2\xad\nsion to our embassy in Iran. It may, of course, be something o f a\nm isnomer to describe the conduct o f the occupiers o f the American\nembassy as a \xe2\x80\x9c restrictive\xe2\x80\x9d application. Since that governm ent appears,\n124\n\n\x0chow ever, to have adopted this conduct as its own, w e w ould appear\njustified in similarly restricting the movem ent o f Iranian diplomats.\nT he D iplom atic Relations Act, supra note 1, reinforces the use of\nA rt. 47 by similarly providing for restriction of immunity:\nT he President may, on the basis o f reciprocity and\nunder such term s and conditions as he may determine,\nspecify privileges and immunities for members o f the mis\xc2\xad\nsion, their families, and the diplomatic couriers o f any\nsending state w hich result in m ore favorable treatm ent or\nless favorable treatm ent than is provided under the\nVienna Convention.\n22 U.S.C. \xc2\xa7 254c. T he legislative history shows that this was intended\nto be used as a tool to respond to arbitrary treatm ent o f Am erican\ndiplomats:\nThe conditions under w hich U.S. diplomatic personnel\ncarry out their official functions and lead their lives in\ncertain hardship areas dictate their enjoym ent of increased\nprotection from harassment as a result o f arbitrary appli\xc2\xad\ncation o f local law. This provision permits less favorable\ntreatm ent than the Vienna C onvention and covers those\ncases w here certain nations restrict the privileges and\nimmunities o f U.S. diplomatic personnel abroad. Any use\nof the discretion described in this section must be on a\nreciprocal basis with the nations involved.\nS. Rep. No. 958, 95th Cong. 2d Sess. 5 (1978).\nC. Suspension o f Convention fo r Breach\n\nT he discussion above has proceeded on the assumption that the\nConvention is still in force. T here has, how ever, been a material breach\non the part o f the Iranians\xe2\x80\x99 treaty obligation to protect our embassy and\ndiplomats. In such a case, the United States may invoke the Iranian\nconduct as a ground for suspending the operation o f the Convention in\nwhole or in part as far as the Iranians are concerned. Vienna C onven\xc2\xad\ntion on the Law o f Treaties, A rt. 60, Senate Exec. L., 92d Cong., 1st\nSess. (1971).2 In such a case we can consider ourselves not bound by\nthe provisions pertinent to the situation at hand, such as immunity from\ndetention or arrest, or from the whole Convention, should the President\nchoose. As noted earlier, how ever, this would not by itself provide a\nvalid legal basis for arrest but merely rem ove immunity from arrest.\nA lthough the C onvention provides for the right to leave the country,\n2 T his treaty is not yet in force and has not been ratified by the U nited States. It is, how ever,\ngenerally cited as evidencing co n tem p o rary p ractice in this Held. Cf. Chariton v. Kelly, 229 U.S. 447.\n473 (1913).\n\n125\n\n\x0cthis could be suspended as well, particularly since Am ericans are being\ndenied that right in Iran.\nD. Reprisals fo r Breach\n\nInternational law recognizes that, beyond suspending the effect of the\ntreaty, \xe2\x80\x9cnon-forcible\xe2\x80\x9d reprisals may be used in the case o f breach.\nCom m entary on Vienna Convention on L aw o f Treaties, [1966] 2 Y. B.\nInt\xe2\x80\x99l L. C om m \xe2\x80\x99n 169, 253-54, U.N. Doc. A /C N .4 /S E R .A /1 9 6 6 /A d d .l.3\nThese reprisals may properly relate to the rights o f the Iranians under\nthe C onvention. Ibid.\nIn evaluating possible reprisals, it is useful in a m odern sense to think\no f them as a m ethod o f com m unication:\nReprisals are usually em ployed when w ords alone cannot\ninfluence the other p arty \xe2\x80\x99s decision and make it discon\xc2\xad\ntinue w hat it is doing. T hey are subordinated to particular\nobjectives and are used in limited selective, exemplified,\nand increm entary ways. Reprisals should be distinguished\nfrom m ere acts o f vengeance or o f destroying the oppo\xc2\xad\nn ent\xe2\x80\x99s capabilities. R ather, they are part of a politicaldiplom atic strategy for resolving and reconciling conflict\xc2\xad\ning interests. As such, com m unicative signals are built into\nthem. T he success o f a reprisal may be judged by w hether\nit exerts the desired influence on the target, w hether it\nstands by itself o r is part o f a credible threat to expand\nthe conflict further, if necessary. An effective reprisal,\ntherefore, while seeking to narrow some o f the adver\xc2\xad\nsary\xe2\x80\x99s alternatives, should keep other alternatives open.\nThis may be best achieved when retaliatory acts are un\xc2\xad\nderstood to form part o f a com prehensive strategy that\ncombines negative sanctions with positive inducements.\nD avid, T he Strategy o f T reaty Term ination: Lawful Breaches and\nRetaliations 234 (Yale Univ. Press, 1975).\nA t the present time w e are not aw are o f specific facts which, under\nUnited States law, w ould justify arrest o f individual Iranian diplomats\neven if there w ere no bar to their arrest under international law for the\nreasons specified. If they could be shown to be part o f a conspiracy (18\nU.S.C. \xc2\xa7 371) to dam age governm ent property (18 U.S.C. \xc2\xa7 1361) there\nmay be a basis. T he N eutrality A ct and other statutes involving crimes\nagajnst foreign governm ents or foreign property are generally directed\nto the protection o f foreign states. 18 U.S.C. \xc2\xa7 951 et seq.\n3T h e term \xe2\x80\x9c non-forcible*' w ould appear to mean not involving the use o f arm ed force as prohibited\nby A rt. 2.4 o f the U.N. C h arte r rath er than m erely placing som eone under arrest. T he law o f reprisal\no f an earlier period was not so restricted. 2 O ppenheim 's Int'l Law 114 (L auterpacht ed. 1935); 7\nM oore. In t\xe2\x80\x99l Law D igest 119 (1906). T his does not, o f course, limit the President s right to use force to\ndirectly free the hostages.\n\n126\n\n\x0cII. Use of Armed Forces Abroad\nAs we noted, the President may use his constitutional pow er to\nprotect Americans abroad subject to the consultation and reporting\nprovisions o f the W ar Pow ers Resolution. 50 U.S.C. \xc2\xa7 1541 et seq.\nA. Consultation Requirement\n\nT he consultation requirem ent focuses on the use o f troops in hostile\nsituations:\nT he President in every possible instance shall consult\nwith Congress before introducing United States Arm ed\nForces into hostilities or into situations w here imminent\ninvolvem ent in hostilities is clearly indicated by the cir\xc2\xad\ncumstances, and after every such introduction shall con\xc2\xad\nsult regularly with the Congress until United States\nArm ed Forces are no longer engaged in hostilities or have\nbeen removed from such situations.\n50 U.S.C. \xc2\xa7 1542.\n(1) On its face consultation is required with \xe2\x80\x9cCongress.\xe2\x80\x9d This lan\xc2\xad\nguage replaced an earlier version which merely required consultation\nwith the leadership and appropriate com m ittees o f Congress. H. Conf.\nRep. No. 547, 93d Cong. 1st Sess. 8 (1973); H. Rep. No. 287, 93d Cong.\n1st Sess. 6 (1973). Nevertheless, as a practical m atter consultation with\nany more than a select group o f congressional leaders has never been\nattem pted. D uring the M ayaguez incident, about ten House- and eleven\nSenate members w ere contacted concerning the measures to be taken\nby the President. On the House side these included the Speaker, the\nm ajority and m inority leaders, and the chairm an and ranking minority\nmembers o f the House Com mittee on International Relations. Testi\xc2\xad\nmony o f State D epartm ent Legal A dviser M onroe Leigh in War\nPowers: A Test o f Compliance Relative to the D anang Sealift, the Evacu\xc2\xad\nation o f Phnom Penh, the Evacuation o f Saigon, and the M ayaguez Inci\xc2\xad\ndent, Hearings before the Subcom m ittee on I n t\xe2\x80\x99l Security and Scientific\nAffairs o f the House Comm, on I n t\xe2\x80\x99l Relations, 94th Cong. 1st Sess. 78\n(1975) (hereafter War Powers : A Test o f Compliance). T he present\n\nAdm inistration has acknow ledged that there are practical limits to the\nconsultation requirem ent and has said that meaningful consultations\nw ith \xe2\x80\x9can appropriate group of congressional representatives should be\npossible.\xe2\x80\x9d Statem ent o f State D epartm ent Legal A dviser Hansell before\nthe Senate Foreign Relations Com m ittee reprinted in State D epartm ent\nBulletin, August 29, 1977 at 291, 292.\n(2) A determ ination must also be made as to when hostilities exist\nthat require consultation. President F ord took the position, for example,\nthat no consultation was legally required at the D anang or Lebanon\nevacuations because hostilities w ere not involved. Franck, A fter the\n127\n\n\x0cFall: The N ew Procedural Framework fo r Congressional Control Over the\nWar Power, 71 Am. J. In t\xe2\x80\x99l L. 605, 615 (1977) (hereafter Franck). The\n\nState and Defense D epartm ents have said that \xe2\x80\x9chostilities\xe2\x80\x9d means a\nsituation in w hich A m erican forces are actively exchanging fire with\nopposing units and \xe2\x80\x9cim minent hostilities\xe2\x80\x9d means a situation w here there\nis a serious risk from hostile fire to the safety o f U.S. forces. Neither\nterm was thought to encompass irregular or infrequent violence which\nmay occur in a particular area. War Powers: A Test o f Compliance at\n38-39.\n(3) In requiring consultation in \xe2\x80\x9cevery possible instance,\xe2\x80\x9d Congress\nm eant to be firm yet flexible. H. Rep. No. 287, supra, at 6.\nT he use o f the w ord \xe2\x80\x9cev ery \xe2\x80\x9d reflects the com m ittee\xe2\x80\x99s\nbelief that such consultation prior to the comm itm ent of\narmed forces should be inclusive. In other words, it\nshould apply in extraordinary and em ergency circum \xc2\xad\nstances\xe2\x80\x94even w hen it is not possible to get formal con\xc2\xad\ngressional approval in the form o f a declaration o f w ar or\nother specific authorization.\nA t the same time, through use o f the w ord \xe2\x80\x9cpossible\xe2\x80\x9d it\nrecognizes that a situation may be so dire, e.g., hostile\nmissile attack underw ay, and require such instantaneous\naction that no prior consultation will be possible.\nId. (Emphasis in original.)\n\nThis A dm inistration has pointed out the problem that exists in em er\xc2\xad\ngencies, noting that \xe2\x80\x9c [B]y their very nature some emergencies may\npreclude opportunity for legislative debate prior to involvem ent o f the\narm ed forces in hostile or potentially hostile situations.\xe2\x80\x9d It has recog\xc2\xad\nnized, how ever, that consultation may be had \xe2\x80\x9cin the great m ajority of\ncases.\xe2\x80\x9d Statem ent o f Legal A dviser Hansell, supra.\n(4) T here may be constitutional considerations involved in the con\xc2\xad\nsultation requirem ent. W hen President Nixon vetoed the Resolution he\ndid not suggest that either the reporting or consultation requirem ents\nw ere unconstitutional. D epartm ent o f State Bulletin, N ovem ber 26,\n1973, at 662-64; N either the F ord nor C arter adm inistrations have taken\nthe position that these requirem ents are unconstitutional on their face.4\nN evertheless, there may be applications w hich raise constitutional ques\xc2\xad\ntions. This view was stated succinctly by State D epartm ent Legal\nA dviser Leigh:\nSection 3 o f the W ar Pow ers Resolution has, in my\nview, been drafted so as not to ham per the President\xe2\x80\x99s\nexercise o f his constitutional authority. Thus, Section 3\nleaves it to the President to determ ine precisely how\n4 T h e only provision that this A dm inistration has suggested presents constitutional problem s related\nto the right o f C ongress to act by co n cu rren t resolution. See 123 C ong. Rec. 21,897 (1977).\n\n128\n\n\x0cconsultation is to be carried out. In so doing the President\nmay, I am sure, take into account the effect various possi\xc2\xad\nble modes o f consultation may have upon the risk of a\nbreach in security. W hether he could on security grounds\nalone dispense entirely with \xe2\x80\x9cconsultation\xe2\x80\x9d w hen exercis\xc2\xad\ning an independent constitutional pow er, presents a ques\xc2\xad\ntion o f constitutional and legislative interpretation to\nwhich there is no easy answer. In my personal view, the\nresolution contem plates at least some consultation in\nevery case irrespective of security considerations unless\nthe President determines that such consultation is incon\xc2\xad\nsistent w ith his constitutional obligation. In the latter\nevent the President\xe2\x80\x99s decision could not as a practical\nm atter be challenged but he would have to be prepared to\naccept the political consequences o f such action, which\nmight be heavy.\nWar Powers: A Test o f Compliance at 100.\nB. Reporting Requirements\n\nThe reporting requirements apply to situations not only w here hostil\xc2\xad\nities are taking place or imminent (w hich requires consultation), but\nw here armed forces are sent to a foreign country equipped for combat.\n50 U.S.C. \xc2\xa7 1543. T he report must be filed within 48 hours. This has\nbeen interpreted as meaning 48 hours from the time that they are\n\xe2\x80\x9c introduced\xe2\x80\x9d into the situation triggering the requirem ent and not from\nthe time that the decision to dispatch them is made. E.g., Franck at 615.\nT he report must include:\n(A) the circum stances necessitating the introduction o f United\nStates Arm ed Forces;\n(B) the constitutional and legislative authority under which\nsuch introduction took place; and\n(C) the estimated scope and duration o f the hostilities or\ninvolvement.\nR eports which have been filed in -the past have been brief and to the\npoint; they have not run more than one or tw o pages. T he reference to\nlegal authority has been one sentence, referring to the constitutional\npow er as Com mander-in-Chief and C hief Executive. See War Powers: A\nTest o f Compliance at 75 (Mayaguez); The War Powers Resolution, R ele\xc2\xad\nvant Documents, Correspondence, Reports, Subcomm. on Int\xe2\x80\x99l Security\nand Scientific Affairs, House Comm, on In t\xe2\x80\x99l Relations, 94th Cong., 1st\nSess. 40 (Danang); 42 (Phnom Penh) (Comm. Print 1975).\n\n129\n\n\x0cIII. Blocking Assets of Iranians\nT he President may direct the T reasury D epartm ent to block assets of\nIranians and to subsequently license particular transactions as desired.\nThis pow er is provided by the International Em ergency Econom ic\nPow ers Act (the A ct), P.L. 95-223, 91 Stat. 1626, 50 U.S.C. \xc2\xa7 1701 et\nseq. (Supp. I 1977), in tandem with the National Em ergencies A ct, 50\nU.S.C. \xc2\xa7 1601. N either A ct has been invoked before, although there are\nwell-established precedents for employing such controls under similar\nprior authority. E.g., Sardino v. F ederal Reserve Bank, 361 F.2d 106 (2d\nCir.), cert, denied, 385 U.S. 898 (1966) (blocking Cuban assets). See\ngenerally 42 Op. A tt\xe2\x80\x99y Gen. 363 (1968).\nIf this course is to be followed, the following steps must be taken\nimmediately:\n(1) Consultation with Congress: T he consultation requirement tracks\nthat found in the W ar Pow ers Resolution (discussed in Part II, supra)\nand presumably can be interpreted in much the same way. 50 U.S.C.\n\xc2\xa7 1703. Security is, o f course, necessary since advance warning will\nassist persons potentially affected in evading controls by w ithdraw ing\nassets from banks or rem oving currency from the country. Unlike the\nsituation involving the W ar Pow ers Resolution, the President cannot\nargue here that he is exercising a constitutional pow er and thus avoid\nstatutory restrictions.\n(2) Declaration o f a N ational Emergency: A proclam ation o f national\nem ergency is necessary to use the powers available under the Act. 50\nU.S.C. \xc2\xa7 1701. T he President is authorized to declare one pursuant to\nthe National Em ergencies Act. 50 U.S.C. \xc2\xa7 1621. F or purposes o f the\nA ct such an em ergency may be declared with respect to any unusual\nand extraordinary threat to the national security, foreign policy, or\neconom y o f the United States w hich has its source outside this country.\n50 U.S.C. \xc2\xa7 1701. This language was left broad to provide necessary\ndiscretion. H. Rep. No. 459, 95th Cong., 1st Sess. 10 (1977). We believe\nthat the present em ergency meets the language o f the statute.\nA declaration can be short and to the point. T he President in this\ncase could state: \xe2\x80\x9cI find that the situation in Iran constitutes an unusual\nand extraordinary threat to the national security, foreign policy and\neconom y o f the United States and hereby declare a national em er\xc2\xad\ngency.\xe2\x80\x9d 5 T he courts will not review a determ ination so peculiarly\nwithin the province o f the President. See 42 Op. A tt\xe2\x80\x99y Gen. at 370.\n(3) Designation o f Act: In the same proclam ation or by contem porane\xc2\xad\nous or subsequent executive orders, the President must designate the\nparticular em ergency statute he wishes to invoke\xe2\x80\x94T he International\n5See Proc. 4074, 7 W eekly Com p. Pres. Doc. 1174 (A ugust 15, 1971) (\xe2\x80\x9c I hereby declare a national\nem ergency d uring w hich I call upon the public and private sector to make the efforts necessary to\nstrengthen the international econom ic position o f the U nited States*').\n\n130\n\n\x0cEm ergency Econom ic Pow ers Act. This is a requirem ent o f the N a\xc2\xad\ntional Em ergencies Act. 50 U.S.C. \xc2\xa7 1631. W e see no reason why this\nshould not be done in the same docum ent that declares a national\nemergency.\n(4) Delegation: Since the statute vests pow ers directly in the Presi\xc2\xad\ndent, any order should delegate pow er to an appropriate official. 3\nU.S.C. \xc2\xa7301. Presumably this would be the Secretary o f the Treasury\nwho already administers similar programs. T he President could in the\norder (a) declare an immediate freeze by prohibiting the transactions\nlisted in the A ct including transactions in foreign exchange, transfers of\ncredit and paym ents between banking institutions, and im porting and\nexporting of currency in which any Iranian has an interest and (b)\ndelegate to an appropriate official the powers to make exceptions and\nto administer the freeze and enforce the A ct. Compare Exec. O rder No.\n11387, \xe2\x80\x9cG overning Certain Capital Transfers A broad,\xe2\x80\x9d 33 Fed. Reg. 47\n(1968). This would avoid any enforcem ent gap between the issuance of\nthe Proclam ation and implementation of the regulations by T reasury.6\n(5) Publication and Transmittal to Congress: T he National E m ergen\xc2\xad\ncies A ct requires that the em ergency proclam ation be immediately\ntransmitted to Congress and published in the Federal Register. 50\nU.S.C. \xc2\xa7 1621.\n(6) Report to Congress: Following the issuance o f the order, the\nPresident shall \xe2\x80\x9cim mediately\xe2\x80\x9d transm it a report to the Congress\nspecifying:\n(a) the circum stances which necessitate such exercise of\nauthority;\n(b) w hy the President believes those circum stances con\xc2\xad\nstitute an unusual and extraordinary threat, w hich has its\nsource in whole or substantial part outside the United\nStates, to the national security, foreign policy, or econ\xc2\xad\nomy o f the United States;\n(c) the authorities to be exercised and the actions to be\ntaken in the exercise o f those authorities to deal with\nthose circumstances;\n(d) why the President believes such actions are neces\xc2\xad\nsary to deal with those circumstances; and\n(e) any foreign countries with respect to w hich such\nactions are to be taken and why such actions are to be\ntaker, with respect to those countries.\n6W e have been show n a proposal w hich is limited to freezing funds o f Iranian students, w hich\ncontem plates an effective date one week from issuance o f the executive order. This w ould not seem to\naccom plish its purpose since it w ould enable students to draw funds from banking institutions in\nanticipation o f the ban. M oreover, it is not clear w h eth er the banks could effectively adm inister an\ninitial freeze limited to students since they may not have records to show just w hich Iranian accounts\nbelong to students. It should be noted, how ever, that if the students w ere to w ithdraw funds from the\nbanks following the effective date, they w ould be com m itting a federal crim e in doing so. 50 U.S.C.\n\xc2\xa7 1705.\n\n131\n\n\x0c50 U.S.C. \xc2\xa7 1703(b).\nT he legislative history indicates that this requirem ent was not to\nimpede use o f em ergency power. T he House report notes:\nN othing in this section should be construed as requiring\nsubmission o f a report as a precondition o f taking action\nw here circum stances require prom pt action prior to or\nsimultaneously with submission o f a report.\nH. Rep. No. 459, supra at 16. This provision is modeled on the W ar\nPow ers Resolution. As indicated in Part II above, the practice under\nthat resolution is to file very brief reports.\nJo\n\nhn\n\nM.\n\nH\n\narm on\n\nAssistant Attorney General\nOffice o f L egal Counsel\n\n132\n\n\x0c"


b'Eligibility of a Dual United States Citizen for a Paid Position\nwith the Department of Justice\nSection 606 of the Treasury and General Government Appropriations Act of 1999 does not bar the\nDepartment of Justice from employing, in a paid position, a United States citizen who is also\na citizen of another country\n\nAugust 26, 1999\nM e m o r a n d u m O p in io n f o r t h e D ir e c t o r\nO f f ic e o f A t t o r n e y P e r s o n n e l M a n a g e m e n t\nD e p a r t m e n t o f J u s t ic e\n\nYou have asked whether, under section 606 of the Treasury and General\nGovernment Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat. 2681480, 2681-513 to -514 (1998)1 (\xe2\x80\x9c \xc2\xa7606\xe2\x80\x9d ), the Department of Justice may employ,\nin a paid position, a U.S. citizen who is also a citizen of another country (\xe2\x80\x9c dual\nU.S. citizen\xe2\x80\x9d ). Section 606 prohibits the Department of Justice from using appro\xc2\xad\npriated funds to employ persons whose post of duty is in the continental United\nStates unless they are \xe2\x80\x9c citizen[s] of the United States\xe2\x80\x9d or otherwise excepted.2\nId. 112 Stat. at 2681-513. We conclude that \xc2\xa7606 does not bar the Department\nof Justice from employing a dual U.S. citizen.\nI\nSection 606 provides as follows:\nUnless otherwise specified during the current fiscal year, no part\nof any appropriation contained in this [Act] or any other Act shall\nbe used to pay the compensation of any officer or employee of\nthe Government of the United States . . . whose post of duty is\nin the continental United States unless such person: (1) is a citizen\nof the United States; (2) is a person in the service of the United\nStates on the date of enactment of this Act . . . who, being eligible\nfor citizenship, has fded a declaration of intention to become a cit\xc2\xad\nizen . . . (3) is a person who owes allegiance to the United States;\n(4) is an alien from Cuba, Poland, South Vietnam, the countries\nof the former Soviet Union, or the Baltic countries lawfully\nadmitted . . . for permanent residence; (5) is a South Vietnamese,\nCambodian, or Laotian refugee paroled in the United States after\n\xe2\x80\x98 This provision is set forth as a note to 5 U S.C. \xc2\xa73101 (Supp IV 1998)\n2 This memorandum addresses only dual U S. citizens whose second citizenship does not place them within one\nof the excepted categories\n\n181\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nJanuary 1, 1975; or (6) is a national of the People\xe2\x80\x99s Republic of\nChina who qualifies for adjustment of status pursuant to the Chi\xc2\xad\nnese Student Protection Act of 1992. . . . This section shall not\napply to citizens of Ireland, Israel, or the Republic of the Phil\xc2\xad\nippines, or to nationals of those countries allied with the United\nStates in a current defense ef fort . . . .\n5 U.S.C. \xc2\xa7 3101 note (Supp. IV 1998).\nIn a 1996 memorandum to your office, we addressed the closely related issue\nof the eligibility for employment of dual nationals who are not citizens of the\nUnited States, but who enjoy, as an incident of one of their nationalities, status\nin an excepted category ( \xe2\x80\x9c noncitizen dual nationals\xe2\x80\x9d ). See Eligibility o f a Noncit\xc2\xad\nizen D ual N ational f o r a Paid Position Within the Department o f Justice, 20 Op.\nO.L.C. 366 (1996) ( \xe2\x80\x9c 1996 Memorandum\xe2\x80\x9d ). In examining the application of \xc2\xa7606\nto that situation,3 we noted that although noncitizen dual national applicants\n\xe2\x80\x9c would seem eligible for hire\xe2\x80\x9d by virtue of their membership in one of the\nexcepted categories, these applicants simultaneously would seem to be ineligible,\nbecause of their membership in the residual category of nonexcepted persons. Id.\nat 367. Because we did not believe that the plain language of \xc2\xa7 606 decided the\nquestion, we turned to the purposes of the statutory provision. The 1996 Memo\xc2\xad\nrandum concluded that a blanket rule of either ineligibility or eligibility for\nemployment of such noncitizen dual nationals would be in tension with one of\n\xe2\x80\x9c the various, and sometimes conflicting, goals of section 606.\xe2\x80\x9d 4 Id. at 369. As\na result, noncitizen dual nationals\xe2\x80\x99 eligibility for employment under \xc2\xa7606 had\nto be evaluated on a case by case basis, by applying the concept of \xe2\x80\x9c effective,\ndominant nationality.\xe2\x80\x9d Id.5 If the applicant\xe2\x80\x99s \xe2\x80\x9c effective, dominant nationality\xe2\x80\x9d\n^The analogous statutory provision m 1996 was section 606 o f the Treasury, Postal Service, and General Govern\xc2\xad\nment A ppropriations Act, 1997, Pub L No. 104-208, 110 Stat. 3009-314, 3009-354 (1996). Section 606, as part\no f an appropriations bill, has been reenacted every year, largely in its current form, since 1938\n4 As the 1996 M emorandum observed\'\nThe general exclusion o f noncitizens from federal employment in the United States seems to be aimed\nchiefly at protecting national security by ensunng the loyalty o f Federal employees, encouraging noncitizens\nwho seek Federal em ploym ent to become naturalized, and shielding United States nationals from competi\xc2\xad\ntion in a substantial sector o f the labor m arket\n. The exception for nationals of \xe2\x80\x9c allied\xe2\x80\x9d foreign States,\non the other hand, serves distinct, indeed often contrary, interests: it allows Federal employers greater\nflexibility in m eeting their personnel needs, it expresses [the] Nation\xe2\x80\x99s solidarity with its allies; and it\nsignifies confidence that the nationals o f such allies are unlikely to betray the trust that the United States\nGovernment has reposed in them. Any simple, \xe2\x80\x9c bright line\xe2\x80\x9d rule that treated dual nationals in the\napplicant\xe2\x80\x99s position as eligible\xe2\x80\x94 or as ineligible\xe2\x80\x94 would promote some of these policies only at the\nexpense o f others.\n20 Op O.L.C. at 367, see also Hampton v M ow Sun Wong, 426 U.S 88, 108, 109 (1976) ("T h e stated purpose\nof the [1938 provision] was to give preference to American citizens during a penod of widespread unemployment,\xe2\x80\x9d\nand its repeated enactment signifies \xe2\x80\x9c continuing interest in giving preference, for reasons unrelated to the efficiency\nof the federal service, to citizens over aliens.\xe2\x80\x9d ).\n5 See supra note 3 (citing Nottebohm Case (Liechtenstein v. Guatemala), 1955 I C.J. 4, 22 (Apr 6)); Note, Claims\no f Dual Nationals in the M odem Era The Iran-United States Claims Tribunal, 83 Mich. L Rev. 597, 613 (1984).\n\n182\n\n\x0cEligibility o f a Dual United States Citizen fo r a Paid Position with the Department o f Justice\n\nwould place him or her in an excepted category, he or she would be eligible;\notherwise the applicant would be deemed ineligible.\nII\n0\n\nAt the very least, in light of the 1996 Memorandum, the Department of Justice\ncan hire dual U.S. citizens where their effective, dominant nationality is with the\nUnited States. To conclude otherwise \xe2\x80\x94 that \xc2\xa7606 bars the hiring of all dual U.S.\ncitizens \xe2\x80\x94 would produce the anomalous result of placing U.S. citizens in a worse\nposition than noncitizens. That result would be particularly untenable here where\nneither the language nor the purposes of the statute support such a reading. The\nonly question, then, is whether dual U.S. citizens are in a better position for pur\xc2\xad\nposes of this statute than the noncitizen dual nationals who were the focus of\nthe 1996 Memorandum \xe2\x80\x94 in other words, whether the inquiry into \xe2\x80\x9c effective,\ndominant nationality\xe2\x80\x9d is also necessary for purposes of considering the eligibility\nof dual U.S. citizens for employment.\nThe 1996 Memorandum read into the statute the concept of effective, dominant\nnationality. It is not entirely clear that we could not have concluded, from the\nlanguage and structure of \xc2\xa7606, that the second nationality of the applicant is\nirrelevant if the applicant possesses one nationality that places him or her in an\nexcepted category. The statute does not define ineligibility for employment, except\nby providing that an eligible person must possess any of six separate characteris\xc2\xad\ntics, and the noncitizen dual national in question did possess one of those six\ncharacteristics. Nevertheless, we interpreted the statute to incorporate the inquiry\ninto effective, dominant nationality, and we do not need to revisit that opinion\nat this time.\nThere are strong arguments that the potential employees here, being citizens\nof the United States, are not subject to the test of effective, dominant nationality.\nGenerally, U.S. law evidences hostility towards the notion of inferior classes of\nAmerican citizenship. Cf. Schneider v. Rusk, 377 U.S. 163, 168\xe2\x80\x9469 (1964)\n(striking down statute providing for denaturalization of naturalized citizens who\nreturned to their original nation to reside for three or more years, noting that\nit \xe2\x80\x9c creates indeed a second-class citizenship\xe2\x80\x9d ).6 Furthermore, although U.S.\npolicy disfavors dual citizenship,7 it recognizes that in many cases the status of\n6 U S. law\xe2\x80\x99s intolerance for second-class citizenship leads, for example, to assertions that naturalized citizens gen\xc2\xad\nerally enjoy the same rights as natural bom citizens See Knauer v. United States, 328 U.S. 654, 658 (1946) (\xe2\x80\x9c C itizen\xc2\xad\nship obtained through naturalization is not a second-class citizenship It has been said that citizenship carries with\nit all of the nghts and prerogatives of citizenship obtained by birth in this country \xe2\x80\x98save that o f eligibility to the\nPresidency.\xe2\x80\x99 \xe2\x80\x9d ); United States v. Klimavicius, 847 F 2d 28, 32 (1st Cir 1988) (\xe2\x80\x9c Once naturalized, a person enjoys\nthe same nghts and opportunities as a nauve bom citizen.\xe2\x80\x9d ).\n1 See, e g .. Von Dunser v. Aronoff, 915 F 2 d 1071, 1073 (6th Cir 1990) ( \xe2\x80\x9c In general, Amencan law abhors the\nstatus of dual citizenship.\xe2\x80\x9d ), Sadat v. Mertes, 615 F 2 d 1176, 1184 (7th C ir 1980) ( \xe2\x80\x9c The official policy of this\ngovernment has been to discourage the incidence of dual nationality.\xe2\x80\x9d and noting \xe2\x80\x9c ambivalent policy\xe2\x80\x9d o f U.S.\ngovernment toward dual nauonality).\n\n183\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 23\n\ndual U.S. citizenship may be a function of the laws of another country and is\nnot necessarily a status that an individual may control.8 See, e.g., Von Dunser,\n915 F.2d at 1073 (footnote omitted) (\xe2\x80\x9c [D]ual citizenship exists, largely as a result\nof conflicts in nations\xe2\x80\x99 ideas of citizenship. Following the rule that each nation\nis permitted to determine who its citizens are, American law reluctantly recognizes\nthe existence of dual citizenship in certain cases, even where the party has\nrenounced allegiance to foreign powers.\xe2\x80\x9d ) In fact, courts have repeatedly empha\xc2\xad\nsized that:\nThe United States recognizes that a person may properly be\nsimultaneously a citizen o f this country and of another. Neither\nstatus in itself or in its necessary implications is deemed incon\xc2\xad\nsistent with the other. \xe2\x80\x9c . . . The concept of dual citizenship recog\xc2\xad\nnizes that a person may have and exercise rights of nationality in\ntwo countries and be subject to the responsibilities of both. The\nmere fact that he asserts the rights of one citizenship does not with\xc2\xad\nout more mean that he renounces the other. . . . [D]ual citizenship\n. . . could not exist if the assertion of rights or the assumption\no f liabilities of one were deemed inconsistent with the maintenance\no f the other.\xe2\x80\x9d\nJalbuena v. Dulles, 254 F.2d 379, 381 (3d Cir. 1958) (exercise of routine privilege\n\no f Philippine citizenship, applying for Philippine passport and subscribing oath\nto support Philippine Constitution, cannot deprive dual U.S./Philippine citizen of\nU.S. citizenship) (quoting Kawakita v. United States, 343 U.S. 717, 723-25\n(1952)).9\n8There are a num ber of w ays in which an individual w ho holds U S. citizenship can also hold the citizenship\no f another country, many o f which will depend on the laws o f the foreign country, as well as the laws of the\nUmted States For example, a child bom in the United States to alien parents acquires U.S. citizenship at birth\nand may also acquire the citizenship of his o r her parents. A child bom abroad to U S. citizen parents may acquire\nthe U.S. citizenship o f his o r her parents, a s well as the citizenship of the country of birth A U.S. citizen who\nmarries an alien may thereby acquire the nationality o f his or her spouse, under his or country\xe2\x80\x99s laws A U.S\ncitizen minor w hose parents become naturalized in a foreign state may thereby acquire the new nationality of the\nparents. Also, some states continue to claim persons as their nationals even after they have renounced ciuzenship\non becoming naturalized in the United States. See 7 Charles Gordon et a l , Immigration Law and Procedure\n\xc2\xa7 91.01 [3][d] (1999); Sadat, 615 F.2d at 1184 n 10 (enumerating non-exclusive list of categones of dual U.S citizens);\nsee also Restatem ent (Third) o f Foreign Relations Law o f the United States \xc2\xa7212 and Reporters\xe2\x80\x99 Notes (1987).\n9 See Kawakita, 343 U.S at 725 (\xe2\x80\x9c [D]ual citizenship presupposes nghts of citizenship in each country \xe2\x80\x9d ); see\nalso Lehmann v Acheson, 206 F2d 592, 5 97-98 (3d Cir. 1953) (same); Terada v. Dulles, 121 F Supp. 6, 11\n(D. Hawaii 1954) (same), R u e ff v. Brownell, 116 F. Supp 298, 306 (D.N.J 1953) (same), Okimura v Acheson,\n111 F. Supp. 303, 305 (D Hawaii 1952) (same), cf. Coury v. Prot, 85 F 3d 244, 2 4 7 ^ 8 , 250 (5th Cir. 1996)\n(rejecting dual U.S. citizen\xe2\x80\x99s argument that diversity jurisdiction should be available based on non-U.S nationality,\nnoting that \xe2\x80\x9c there is an emerging consensus among courts that, for a dual national citizen, only the A mencan citizen\xc2\xad\nship is relevant foT purposes o f diversity under 28 U S.C \xc2\xa7 1332 \xe2\x80\x9d ) (citing cases); but see Rogers v Bellei, 401\nU.S 815, 8 22-45 (1971) (upholding statute providing that dual citizens bom abroad would lose their U.S. citizenship\nunless they fulfilled a residency requirement m the United States, but concluding that result does not create impermis\xc2\xad\nsible inferior classes o f U S citizenship because individuals affected by statute are not \xe2\x80\x9c Fourteenth-Amendmentfirst-sentence citizen[s],\xe2\x80\x9d \xe2\x80\x9c bom or naturalized in the United States\xe2\x80\x9d ) Even Bellei does not support the creation\no f a broad rule o f second-class citizenship based on dual citizenship status. The Bellei Court indicated that according\n\n184\n\n\x0cEligibility o f a Dual United States Citizen fo r a Paid Position with the Department o f Justice\n\nWithout deciding whether Congress could place restrictions on the employment\nopportunities of dual U.S. citizens by virtue of their dual citizenship status, we\nwould look for a much clearer statement before inferring that Congress had\nintended to create such \xe2\x80\x9c second class\xe2\x80\x9d citizenship based solely on dual citizenship\nstatus. We do not read the language in this appropriations provision to reach that\nresult. We conclude that \xc2\xa7606 does not create any burdens on the employability\nof dual U.S. citizens by the Department of Justice that do not exist for sole U.S.\ncitizens. No inquiry regarding their \xe2\x80\x9c effective, dominant nationality\xe2\x80\x9d is necessary\nfor purposes of establishing the dual U.S. citizen\xe2\x80\x99s eligibility for employment\nunder that provision. Section 606, in a fairly straightforward manner, carves out\nan exception for U.S. citizens to the general bar on employment. Because dual\nU.S. citizens are U.S. citizens, they fall into the excepted category.\nAt the same time, in particular cases, the nature of individual applicants\xe2\x80\x99 ties\nto the U.S. or the strength of their links to their U.S. citizenship may be relevant\nwhen considering them for employment with the Department of Justice, particu\xc2\xad\nlarly when questions of security or loyalty may arise. The manner in which an\nindividual applicant has held or exercised his or her dual citizenship status \xe2\x80\x94 or\na variation on the \xe2\x80\x9c effective, dominant nationality\xe2\x80\x9d test \xe2\x80\x94 may be most appro\xc2\xad\npriately incorporated into the hiring process, for example, as one of the many\nfactors to be considered in decisions to grant or withhold security clearances for\nemployment.10\nIII\nWe conclude that \xc2\xa7 606 does not bar the hiring of dual U.S. citizens by the\nDepartment of Justice. Although U.S. policy generally disfavors the holding of\ndifferent levels of favor to different types o f U S . citizenship would be unacceptable \xe2\x80\x94 at least for those whose\ncitizenship claim is \xe2\x80\x9c bottomed upon Fourteenth Amendment citizenship,\xe2\x80\x9d 401 U S at 835, that is, who obtained\nU S. citizenship by birth or naturalization in the United States. According to the Bellei Court, for those who do\nnot qualify as Fourteenth Amendment citizens\xe2\x80\x94 and whose citizenship claim is thus \xe2\x80\x9c wholly statutory,\xe2\x80\x9d such as\nMr. Bellei, id. at 833\xe2\x80\x94 Congress may place a statutory condition subsequent for the purpose o f maintaining that\ncitizenship Id. The Bellei Court thus rejected the dissent\'s criticism that its holding presented the danger of creating\na class of \xe2\x80\x9c second class ciuzen[s] \xe2\x80\x9d Bellei, 401 U S at 835-36, but see id at 837-39 (Black, J. dissenting) (criticizing\nmajority opinion for suggesting the existence o f a \xe2\x80\x9c hierarchy of citizenship\xe2\x80\x9d ). To the extent that a dual U S. citizen\nmay also be a Fourteenth Amendment citizen, under Bellei he or she would be entitled to be considered of the\nsame class of citizens as sole U S citizens See also Afroyim v. Rusk, 387 U.S 253, 262 (1967) ( \xe2\x80\x9c Once acquired,\n. . Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Govern\xc2\xad\nment, the States, or any other governmental unit.\xe2\x80\x9d ) Accepting the general proposition that dual U.S. citizens who\nare Fourteenth Amendment citizens are constitutionally protected from badges of second-class citizenship, we see\nno reason to read any further distinctions among different types o f dual citizens into \xc2\xa7 606.\n10Such an approach would not be unprecedented. See, e g., 32 C.F.R. \xc2\xa7\xc2\xa7 147 5, 154 1, 154.2, 154 6, 154 7, 154 16;\n32 C.F.R Pt. 154, App. H (1998) (Department o f Defense regulations governing grant of security clearances to\nemployees, limiting grant o f security clearances to U.S. citizens in the absence of specified compelling circumstances,\nand taking \xe2\x80\x9c exercise o f dual citizenship,\xe2\x80\x9d \xc2\xa7 147 5(b)(1), into account as one of many factors in determining whether\nor not to grant clearance); c f 10 C.F.R. \xc2\xa7 \xc2\xa7 7 1 0 2 , 71 0 4 , 7 1 0 8 (1998) (Department of Energy regulations governing\ngrant of secunty clearances to employees, not listing dual citizenship as a formal criterion to be considered, but\nusing \xe2\x80\x9c exercis[e of] rights o f citizenship conferred by a country other than the United States,\xe2\x80\x9d \xc2\xa7 7104(e), as an\nexample of a circumstance raising a question concerning \xe2\x80\x9c an individual\xe2\x80\x99s national allegiance,\xe2\x80\x9d i d , and requiring\nsuspension o f processing o f application for clearance until questions o f security risk are resolved)\n\n185\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ndual citizenship, such a policy has not served as authority for affording dual citi\xc2\xad\nzens as a class fewer benefits or privileges than are given to those who are sole\nU.S. citizens. Indeed, as U.S. citizens, dual U.S. citizens should be presumed\neligible for employment under \xc2\xa7 606. How the individual applicant has held or\nexercised his or her dual citizenship status may be incorporated as one of many\nfactors to be considered, for example, in decisions to grant or withhold security\nclearances for employment.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n186\n\n\x0c'