b"May 29, 1979\n\n79-39\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR, FEDERAL BUREAU OF\nINVESTIGATION\nForeign Intelligence Surveillance Act (50 U.S.C.\n\xc2\xa7 1801)\xe2\x80\x94Interception of Radio Communication\xe2\x80\x94\nConstitutional Law\xe2\x80\x94Fourth Amendment\xe2\x80\x94Privacy\n\nYou have asked this Office to consider whether, in specified cir\xc2\xad\ncumstances, the Federal Bureau of Investigation (FBI) interception of\nradio transmissions' would constitute \xe2\x80\x9c electronic surveillance\xe2\x80\x9d as that\nterm is defined by \xc2\xa7 101(0 of the Foreign Intelligence Surveillance Act of\n1978 (FISA), Pub. L. No. 95-511, 92 Stat. 1785, 50 U.S.C. \xc2\xa7 1801(0- We\nconclude, for reasons discussed below, that the interception of such trans\xc2\xad\nmissions is not \xe2\x80\x9c electronic surveillance\xe2\x80\x9d and does not require a warrant\nwhen conducted to gather foreign intelligence information.\nI. Statutory Interpretation\n\nAs analyzed below, whether the interception of radio transmissions is\n\xe2\x80\x9c electronic surveillance\xe2\x80\x9d under FISA turns, in general, on whether the\nspeaker has a constitutionally protected reasonable expectation of privacy\nwith respect to his communications.\nUnder FISA, the interception of radio communications could poten\xc2\xad\ntially be classed as \xe2\x80\x9c electronic surveillance\xe2\x80\x9d under either of two subsec\xc2\xad\ntions of \xc2\xa7 101(0- Section 101(0 provides:\n\xe2\x80\x9c Electronic surveillance\xe2\x80\x9d means\xe2\x80\x94\n(1)\nthe acquisition by an electronic, mechanical, or other\nsurveillance device o f the contents of any wire or radio\n\n1 References in this m em orandum to \xe2\x80\x9c radio com m unications\xe2\x80\x9d include only two-way com \xc2\xad\nmunications wholly between radio stations or one-way comm unications between a transm it\xc2\xad\nter and a receiver, and not microwave or other radio comm unications that rely, in part, on\nwire, cable, or similar transmissions.\n\n240\n\n\x0ccommunications sent by or intended to be received by a par\xc2\xad\nticular, known United States person who is in the United\nStates, if the contents are acquired by intentionally targeting\nthat United States person, under circumstances in which a per\xc2\xad\nson has a reasonable expectation of privacy and a warrant\nwould be required for law enforcement purposes;\n*******\n(3) the intentional acquisition by an electronic, mechanical,\nor other surveillance device of the contents of any radio com\xc2\xad\nmunication, under circumstances in which a person has a\nreasonable expectation of privacy and a warrant would be re\xc2\xad\nquired for law enforcement purposes, and if both the sender\nand all intended recipients are located within the United\nStates; * * *.\nThe interception of the communications involved would typically fall\nwithin one of these subsections unless the person targeted, or whose com\xc2\xad\nmunications were intercepted, had no \xe2\x80\x9c reasonable expectation of\nprivacy.\xe2\x80\x9d Congress meant to incorporate into FISA the standard for con\xc2\xad\nstitutionally protected privacy interests that is set forth in Katz v. United\nStates, 389 U.S. 347 (1967). Katz held that the warrantless electronic\nsurveillance of a telephone conversation initiated in a public telephone\nbooth was unconstitutional because it \xe2\x80\x9c violated the privacy on which [the\nspeaker] justifiably relied.\xe2\x80\x9d Id. at 353. The Court found that the speaker\n\xe2\x80\x9cjustifiably\xe2\x80\x9d relied on the privacy of his conversation because of both an\nobjectively reasonable social expectation that people\xe2\x80\x99s phone conversa\xc2\xad\ntions will be private and the speaker\xe2\x80\x99s own efforts to keep the world out\xc2\xad\nside the phone booth from hearing his conversation. Congress did not\nspecify in the language of FISA whether it meant to protect only such\nsocially accepted, actively sought conditions of privacy or whether it in\xc2\xad\ntended to adopt a broader privacy concept. Both the House and the\nSenate, however, in reporting the bills that became FISA, said:\nThe * * * definitions of \xe2\x80\x9c electronic surveillance\xe2\x80\x9d require that\nthe acquisition of information be under circumstances in which a\nperson has a constitutionally protected right of privacy. [H.\nRept. 1283, Pt. I, 95th Cong., 2d sess. 53 (1978); S. Rept. 701,\nid., at 37 (1978).]\nNothing in the Act or in the legislative history contradicts these statements\nthat the privacy standard in FISA is the same as the Fourth Amendment\nstandard.\nThe second factor determining whether an interception of radio com\xc2\xad\nmunications constitutes \xe2\x80\x9c electronic surveillance\xe2\x80\x9d under FISA is whether\n\xe2\x80\x9c a warrant would be required for law enforcement purposes.\xe2\x80\x9d Under the\nrelevant statute, Title III of the Omnibus Crime Control and Safe Streets\nAct of 1968, 18 U.S.C. \xc2\xa7 2510 et seq:, a warrant is required for the\n241\n\n\x0cinterception, for law enforcement purposes, of radio communications\nonly if the person speaking has a constitutionally protected reasonable ex\xc2\xad\npectation of privacy. This conclusion follows from the definitional sec\xc2\xad\ntions of title III. The communications covered by title III are divided into\ntwo categories, \xe2\x80\x9c wire\xe2\x80\x9d and \xe2\x80\x9c oral.\xe2\x80\x9d A \xe2\x80\x9c wire communication\xe2\x80\x9d is:\n* * * any communication made in whole or in part through the\nuse of facilities for the transmission of communications by the\naid of wire, cable, or other like connection between the point of\norigin and the point of reception furnished or operated by any\nperson engaged as a common carrier in providing or operating\nsuch facilities for the transmission of interstate or foreign com\xc2\xad\nmunications * * *. [18 U.S.C. \xc2\xa72510(1).]\nAn \xe2\x80\x9c oral communication\xe2\x80\x9d is:\n\xe2\x99\xa6 * * any oral communication uttered by a person exhibiting an\nexpectation that such communication is not subject to intercep\xc2\xad\ntion under circumstances justifying such expectation * * *. [18\nU.S.C. \xc2\xa72510(2).]\nIt is evident that, although radio transceivers use wires, a normal radio\ncommunication does not fall within the defmition of \xe2\x80\x9c wire communica\xc2\xad\ntions,\xe2\x80\x9d which includes only those communications that are transmitted, in\nwhole or in part, over the wire or cable facilities of a communications\ncommon carrier. An ordinary radio communication, on its face, is more\ndirectly analogous to an oral utterance, whose audible reach is extended\nthrough the open air mechanically through a device such as a megaphone.\nThe Ninth Circuit Court of Appeals has held that radio communications,\nif covered at all by title III, are covered as \xe2\x80\x9c oral communications\xe2\x80\x9d as\ndefined in that Act. United States v. Hall, 488 F. (2d) 193, 196-197 (9th\nCir. 1973).\nHowever, as indicated in the definition quoted above, title III requires a\nwarrant to intercept oral communications only when uttered by persons\npossessing a justifiable expectation of privacy. 18 U.S.C. \xc2\xa7 2510(2). Title\nIII, like FISA, thus incorporates the constitutional privacy standard first\nset forth in Katz.1 If, in particular circumstances, no justifiable expecta\xc2\xad\ntion of privacy requiring a warrant for law enforcement purposes under\nthe Fourth Amendment exists, title III imposes no warrant requirement\nfor the interception of oral communications.\nBecause \xe2\x80\x9c electronic surveillance\xe2\x80\x9d of radio communications is defined\nunder FISA to include only circumstances in which a constitutionally pro\xc2\xad\ntected privacy interest exists, and because a warrant for law enforcement\npurposes would be required under title III or under the Constitution only\nwhere there is a constitutionally protected privacy interest, the\n\n1 \xe2\x80\x9c In the course o f the opinion [Berger v. New York, 388 U .S. 41 (1967)], the C ourt\ndelineated the C onstitutional criteria that electronic surveillance legislation should contain.\nTitle III was drafted to meet these standards and to conform with Katz v. United States, 389\nU .S. 347 (1967).\xe2\x80\x9d S. Rept. 1097, 90th C ong., 2d sess., 66 (1968). See also, id. at 28, 89-90.\n\n242\n\n\x0cexistence of such an interest controls both definitional characteristics of\n\xe2\x80\x9c electronic surveillance\xe2\x80\x9d under FISA.\nn . Expectations of Privacy and Radio Transmissions\nHaving concluded that the interpretation of \xe2\x80\x9c electronic surveillance\xe2\x80\x9d\nunder FISA turns, in this instance, on a determination whether persons us\xc2\xad\ning radio have a constitutionally protected expectation of privacy, it is\nnecessary to ascertain whether any such interest exists.\nIn Katz, the Supreme Court held that the Fourth Amendment protected\nnot particular places, but certain privacy interests of persons:\nWhat a person knowingly exposes to the public, even in his home\nor office, is not a subject of Fourth Amendment protec\xc2\xad\ntion * * *. But what he seeks to preserve as private, even in an\narea accessible to the public, may be constitutionally protected.\n[Id. at 351-2 (citations omitted).]\nFrom this foundational statement, courts have deduced that the reason\xc2\xad\nableness of an expectation of privacy is to be judged by those factors af\xc2\xad\nfecting the person\xe2\x80\x99s subjective expectations, and by \xe2\x80\x9c understandings that\nare recognized and permitted by society\xe2\x80\x9d concerning privacy. Rakas v. Il\xc2\xad\nlinois, 99 S. Ct. 421, 430-431, n. 12 (1978). As explained below, we con\xc2\xad\nclude from a review of such factors that no constitutionally protected ex\xc2\xad\npectation of privacy exists with respect to most radio communications.\nFirst, a person using an ordinary radio is knowingly exposing the\nmessage transmitted to any member of the public who happens to be\nlistening. The ease of interception, the widespread availability of the\ntechnology required for interception,-and the ease of access for the user to\nmore private means of communication all suggest that no subjective\nreliance on a privacy interest occurs in the case of a radio message.\nThe fact that a specific interception that actually takes place may not\nhave been anticipated does not mean there is a constitutionally protected\nprivacy interest. Case law clearly demonstrates that once a person exposes\nan otherwise private event to ready observation, the individual cannot\nlegitimately rely on an expectation of privacy created by the possibility\nthat the public will overlook what has been exposed. See, e.g., United\nStates v. Jackson, 448 F. (2d) 963, 971 (9th Cir. 1971), cert, denied, 405\nU.S. 924 (1972) (upholding the warrantless search of a trash can outside a\nhotel room); United States v. Fisch, 474 F. (2d) 1071 (9th Cir. 1973), cert,\ndenied, 412 U.S. 921 (1973), and United States v. Llanes, 398 F. (2d) 880\n(2d Cir. 1968), cert, denied, 393 U.S. 1032 (1969) (upholding warrantless\neavesdropping, with the naked ear, of a conversation in an adjoining\nmotel room or apartment); and United States v. Wright, 449 F. (2d) 1355\n(D.C. Cir. 1971), cert, denied, 405 U.S. 947 (1972) (upholding warrantless\nvisual search of a garage, using a flashlight, through partially open garage\ndoor).\nThe circumstances surrounding radio transmissions and analogies from\n243\n\n\x0cexisting case law support the conclusion that a person transmitting a\nmessage by radio cannot reasonably rely on an expectation of privacy in\nthe constitutional sense.3 Nor does it appear that there are, with respect to\nradio, any \xe2\x80\x9c understandings recognized and permitted by society,\xe2\x80\x9d Rakas\nv. Illinois, 99 S. Ct. 421, 430-31, n. 12 (1978), that create a constitu\xc2\xad\ntionally protected privacy interest.\nIt might be argued that \xc2\xa7 605 of the Federal Communications Act of\n1934, as amended, 47 U.S.C. \xc2\xa7 605, creates a right of privacy that gives\nrise to a constitutionally protected expectation of privacy. Section 605 pro\xc2\xad\nvides in part:\nNo person not being authorized by the sender shall intercept any\nradio communication and divulge or publish the existence, con\xc2\xad\ntents, substance, purport, effect, or meaning of such intercepted\ncommunication to any person.\nPrior to its amendment in 1968, this provision referred to \xe2\x80\x9c any\xe2\x80\x9d com\xc2\xad\nmunication \xe2\x80\x9c by wire or radio,\xe2\x80\x9d and was interpreted by the Supreme Court\nto preclude the introduction into evidence of intercepted wire communica\xc2\xad\ntions at a State or Federal trial. Nardone v. United States, 302 U.S. 379\n(1937); Lee v. Florida, 392 U.S. 378 (1968). Reasoning from Nardone, the\nNinth Circuit, in United States v. Sugden, 226 F. (2d) 281 (9th Cir. 1955),\naff\xe2\x80\x99d per curiam, 351 U.S. 916 (1956), held the exclusionary rule ap\xc2\xad\nplicable to radio communications as well.\nWe conclude, however, that the prohibitions enacted in \xc2\xa7 605 do not\ncodify or create a constitutionally protected privacy interest for radio\ncommunications. First, those lower courts that ruled on the question prior\nto FISA held that \xc2\xa7 605 does not bar warrantless electronic surveillance for\nthe purpose of gathering foreign intelligence information, even from wire\ncommunications. United States v. Butenko, 494 F. (2d) 593, 602 (3d Cir.\n1974), cert, denied, 419 U.S. 881 (1974); United States v. Clay, 430 F. (2d)\n165, 171 (5th Cir. 1970), rev\xe2\x80\x99d on other grounds, 403 U.S. 698 (1971);\nUnited States v. Hoffman, 334 F. Supp. 504 (D.D.C. 1971). In adopting\nFISA, Congress provided expressly that \xc2\xa7 605 is not a bar to \xe2\x80\x9c electronic\nsurveillance\xe2\x80\x9d conducted under the Act, or to the acquisition of foreign\nintelligence information by means other than electronic surveillance from\ninternational or foreign communications. FISA, \xc2\xa7 201(b), 18 U.S.C.\n\xc2\xa7 2511(2)(e) and (f). In view of the prior case law and because Congress\n\n\xe2\x80\x99 The fact that a transmission may be encoded would also not create a constitutionally pro\xc2\xad\ntected privacy interest. W ith respect to com m unications, the Fourth A m endm ent protects\npersons against interceptions that cannot be reasonably anticipated, given the steps taken to\nprotect the privacy o f the com m unication. In circumstances in which the Fourth Am endment\nwould not proscribe a particular recipient from receiving a com m unication, the recipient\xe2\x80\x99s\nuse o f the com m unication, e.g., decoding, divulgence to a third party, etc., is not a m atter o f\nconstitutional concern. H offa v. United States, 385 U .S. 293, 300-303 (1966); United States\nv. Crowell, 586 F. (2d) 1020 (4th Cir. 1978), cert, denied, 99 S.C t. 1500 (1979) (permitting\npolice to take and subject to chemical analysis defendant\xe2\x80\x99s trash \xe2\x80\x9c absent proof that [defend\xc2\xad\nant] has m ade some special arrangem ent for the disposition o f his trash inviolate\xe2\x80\x9d ).\n\n244\n\n\x0cstated expressly that \xc2\xa7 605 does not bar domestic \xe2\x80\x9c electronic\nsurveillance,\xe2\x80\x9d which, by definition, occurs only when a constitutional\nprivacy interest is at stake, it should follow that \xc2\xa7 605 does not bar the ac\xc2\xad\nquisition of foreign intelligence information in cases in which a constitu\xc2\xad\ntionally protected privacy interest is not at stake. Assuming that \xc2\xa7 605 is\nthus simply irrelevant to the gathering of foreign intelligence information,\na person transmitting an ordinary radio message cannot justifiably rely on\n\xc2\xa7 605 as protecting his privacy against investigators seeking such\ninformation.\nSecond, the Department of Justice has consistently interpreted \xc2\xa7 605 not\nto bar the mere acquisition of radio communications, but only to pro\xc2\xad\nscribe their interception and divulgence outside the Government, see H.\nRept. 1283, Pt. 1, 95th Cong., 2d sess. 15 (1978), and a person using radio\ncould thus not rely on \xc2\xa7 605 as guaranteeing privacy against mere\ninterception.4\nIII. Conclusion\n\nWe conclude that no constitutionally protected privacy interest exists\nwith respect to ordinary radio transmissions and, consequently, that no\nwarrant is required for the interception of most radio communications for\nlaw enforcement purposes. Because there is thus, with respect to such\ncommunications, neither a \xe2\x80\x9c reasonable expectation of privacy\xe2\x80\x9d nor a\nwarrant requirement for law enforcement purposes, the interception of\nradio communications does not constitute \xe2\x80\x9c electronic surveillance\xe2\x80\x9d\nwithin the definitional provisions of FISA.\nK e n n e t h C . B a s s , III\nCounsel fo r Intelligence Policy\nOffice o f Legal Counsel\n\n4 O ur interpretation is consistent with United States v. Hall, 488 F. (2d) 193 (9th Cir.\n1973), in which the court held that no constitutional right o f privacy attaches to radio com \xc2\xad\nmunications in a case in which the speaker recognizes the possibility o f interception. The\ncourt regarded the 1968 revision o f \xc2\xa7 60S as exempting law enforcement officers from its\ncoverage, and thus found \xc2\xa7 605\xe2\x80\x99s ban on divulgence irrelevant to the introduction into\nevidence at trial o f the contents o f intercepted radio comm unications. Judge Ferguson\ndissented on the ground that \xc2\xa7 60S did apply to law enforcement officers, and did proscribe\nthe use o f intercepted conversations at trial. He took no exception, however, to the\nm ajority\xe2\x80\x99s assum ption that \xc2\xa7 605 was irrelevant to the question whether a constitutional right\no f privacy attaches to radio-to-radio comm unications.\n\n245\n\n\x0c"


b'Constitutionality of Legislation to Establish\na Program to Prevent Aircraft Piracy\nCongress may establish jurisdiction in United States courts over individuals who commit the offense of\nhijacking outside the territorial jurisdiction of the United States.\nIn most cases, state and local law enforcement officers would be authorized to make arrests for\nviolations of the proposed aircraft piracy legislation, either because hijacking airplanes would also\nviolate state law, or because federal law permits federal enforcement officers to delegate arrest\nauthority to state and local law enforcement officers and state law permits state and local law\nenforcement officers to accept delegated arrest authority.\n\nMarch 23, 1973\n\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL\nCRIMINAL DIVISION\nThis is in response to your request for the views of the Office of Legal Counsel\non questions concerning the constitutionality and legality of certain provisions in\nproposed legislation (S. 39 and H.R. 3858, 93d Cong.) that would establish a\nprogram to prevent aircraft piracy. The questions, which were raised during the\ncourse of hearings before the Subcommittee on Transportation and Aeronautics of\nthe House Committee on Interstate and Foreign Commerce, are the following:\nI. Federal Jurisdiction\nWhether Congress has the power to establish federal jurisdiction over individuals who commit the offense of hijacking outside the territorial jurisdiction of the\nUnited States in the event that the government does not choose to extradite the\nindividual?\nII. Arrest Authority of Local Law Enforcement Officers and Private Security\nPersonnel\nA. Whether local law enforcement officers are authorized to arrest for violations of federal law?\nB. Whether the United States may delegate arrest authority to local law enforcement officers or private security personnel?\nC. Whether private security personnel are authorized to arrest for violations of\nfederal or local laws?\nD. Whether the United States can deputize private personnel as Deputy United\nStates Marshals?\nThe constitutional aspects and any relevant statutory authority on these questions will be discussed seriatim.\n\n356\n\n\x0cConstitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy\n\nI. Constitutionality of Establishing Jurisdiction Over\nIndividuals Who Commit the Offense of Hijacking Outside the\nTerritorial Jurisdiction of the United States\nAny determination of the constitutional dimensions of establishing \xe2\x80\x9cextraterritorial jurisdiction\xe2\x80\x9d\xe2\x80\x94that is, the assertion of jurisdiction over individuals who\nengage in conduct outside the territorial limits of the United States that violates\nfederal criminal law and therefore subjects the individual to prosecution in\ndomestic federal courts\xe2\x80\x94must begin with a discussion of the nature of criminal\njurisdiction under international law. In general, there are five basic principles of\ninternational jurisdiction:\nfirst, the territorial principle, determining jurisdiction by reference to\nthe place where the offense is committed; second, the nationality\nprinciple, determining jurisdiction by reference to the nationality or\nnational character of the person committing the offence; third, the\nprotective principle, determining jurisdiction by reference to the national interest injured by the offence; fourth, the universality principle, determining jurisdiction by reference to the custody of the person committing the offence; and fifth, the passive personality\nprinciple, determining jurisdiction by reference to the nationality or\nnational character of the person injured by the offence.\nCodification of International Law, Part II: Jurisdiction with Respect to Crime, 29\nAm. J. Int\xe2\x80\x99l L. Supp. 435, 445 (1935) (Research in International Law, Harvard\nLaw School).\nOf these five principles, the territorial basis is the most common. It has often\nfound expression in our case law. One of the first statements of this principle was\nmade in The Appollon, in which the Supreme Court spoke in sweeping terms:\n\xe2\x80\x9cThe laws of no nation can justly extend beyond its own territories, except so far\nas it regards its own citizens.\xe2\x80\x9d 22 U.S. (9 Wheat.) 362, 370 (1824). The Court did\nnot associate this general rule with any provision in the Constitution. The context\nin which the Court spoke, however, demonstrated that it recognized that the\npurpose of the general rule was also the touchstone for its limitation: \xe2\x80\x9c[The laws of\na nation] can have no force to control the sovereignty or rights of any other nation,\nwithin its own jurisdiction.\xe2\x80\x9d Id. The underpinning of the territorial concept is that a\ngovernment, in order to maintain its sovereignty indivisible, must be the only\npower capable of enforcing peace and order within its own boundaries. Accordingly, \xe2\x80\x9cno other nation can enact extraterritorial legislation which would interfere\nwith the operation of such laws.\xe2\x80\x9d United States v. Rodriguez, 182 F. Supp. 479,\n488 (S.D. Cal. 1960), aff\xe2\x80\x99d in part, rev\xe2\x80\x99d in part on other grounds, Rocha v.\nUnited States, 288 F.2d 545 (9th Cir. 1961).\n\n357\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe assertion of extraterritorial jurisdiction over aircraft hijackers present\nwithin the territorial boundaries of the United States does not contravene this\nprinciple. Article 4.2 of the Multilateral Hijacking Convention\xe2\x80\x94approved by a 77nation diplomatic conference, including the United States, held at The Hague,\nDecember 1\xe2\x80\x9316, 1970, and signed by 48 other countries on December 16, 1970\xe2\x80\x94\nprovides that:\nEach Contracting State shall . . . take such measures as may be necessary to establish its jurisdiction over the offence in the case where\nthe alleged offender is present in its territory and it does not extradite\nhim pursuant to article 8 to any of the states mentioned in paragraph\n1 of this article.\nConvention for the Suppression of Unlawful Seizure of Aircraft, opened for\nsignature Dec. 16, 1970, 860 U.N.T.S. 105, 108 (entered into force Oct. 14,\n1971).1 Thus, by the express terms of the Convention the signatory countries\ncountenance the assertion of jurisdiction by one nation over aircraft hijackers who\ncommit in or against another nation the offense of hijacking and related offenses\nas defined in article 1 of the Convention. The enactment of legislation establishing\nextraterritorial jurisdiction over aircraft hijackers does not, therefore, offend the\ndignity or right of sovereignty of the contracting nations or interfere with their\nlaws or rights, the consequences with which the Supreme Court was concerned in\nThe Appollon and the principle which the World Court recognizes as \xe2\x80\x9cthe first and\nforemost restriction imposed by international law upon a State.\xe2\x80\x9d The S.S. Lotus\n(Fr./Turk.), Judgment No. 9, 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).2\n\n1\n\nParagraph 1 of Article 4 requires each Contracting State to establish jurisdiction in the following\ncases:\n(a) when the offense is committed on board an aircraft registered in that State;\n(b) when the aircraft on board which the offense is committed lands in its territory\nwith the alleged offender still on board;\n(c) when the offence is committed on board an aircraft leased without crew to a lessee\nwho has his principal place of business or, if the lessee has no such place of business,\nhis permanent residence, in that State.\n860 U.N.T.S. at 108.\n2\nIn The S.S. Lotus, the World Court drew a distinction between the assertion of jurisdiction over\nthose found within the boundaries of a nation but who committed the offense outside the territorial\nlimits of the nation and the enactment of laws seeking to control physically the actions of those in some\nsovereign state:\nNow the first and foremost restriction imposed by international law upon a State is\nthat\xe2\x80\x94failing the existence of a permissive rule to the contrary\xe2\x80\x94it may not exercise its\npower in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a\npermissive rule derived from international custom or from a convention.\n\n358\n\n\x0cConstitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy\n\nWhere the assertion of jurisdiction does not conflict with this principle, a sovereign nation may select a different jurisdictional basis from the jurisprudence of\ninternational law. Likewise, as the court stated in Rodriguez, possessing the power\nunder the Constitution, \xe2\x80\x9c[f]rom the body of international law, the Congress may\npick and choose whatever recognized principle of international jurisdiction is\nnecessary to accomplish the purpose sought by the legislation.\xe2\x80\x9d 182 F. Supp. at\n491. In this instance, the jurisdictional principle that is apposite and is in fact\nreflected in the Multilateral Hijacking Convention is the universality principle\nunder which a state establishes jurisdiction \xe2\x80\x9cby reference to the custody of the\nperson committing the offense.\xe2\x80\x9d Jurisdiction With Respect to Crime, 29 Am. J.\nInt\xe2\x80\x99l L. Supp. at 445. Accordingly, because universal jurisdiction exists as a\nrecognized doctrine of international law, it constitutes a jurisdictional basis that\nCongress can rightfully incorporate into its legislation. See Rodriguez, 182 F.\nSupp. at 491; see also Blackmer v. United States, 284 U.S. 421, 436\xe2\x80\x9338 (1932)\n(nationality principle, i.e., the assertion of jurisdiction on the basis of the nationality of the actor, chosen as the jurisdictional basis to prosecute the offense of\ncontempt against an American citizen who refused to return from France to testify\nwhen ordered to do so). As the Supreme Court declared in United States v.\nCurtiss-Wright Export Corp., 299 U.S. 304, 318 (1936), \xe2\x80\x9cas a member of the\nfamily of nations, the right and power of the United States are equal to the right\nand power of the other members of the international family.\xe2\x80\x9d\nHaving concluded that universal jurisdiction constitutes a basis for jurisdiction\nunder international law, the question remains whether Congress possesses the\npower under constitutional law to enact legislation establishing jurisdiction over\naircraft hijackers who commit an offense outside the territorial limits of the United\nStates. We perceive two sources of power authorizing the assertion of this\n\nIt does not, however, follow that international law prohibits a State from exercising\njurisdiction in its own territory, in respect of any case which relates to acts which have\ntaken place abroad, and in which it cannot rely on some permissive rule of international law. . . . Far from laying down a general prohibition to the effect that States may\nnot extend the application of their laws and the jurisdiction of their courts to persons,\nproperty and acts outside their territory, [international law] leaves them in this respect\na wide measure of discretion which is only limited in certain cases by prohibitive rule;\nas regards other cases, every state remains free to adopt the principles which it regards\nas best and most suitable.\n....\nIn these circumstances, all that can be required of a state is that it should not overstep the limits which international law places upon its jurisdiction; within these limits,\nits title to exercise jurisdiction rests in its sovereignty.\n....\n. . . The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty.\nId. at 18\xe2\x80\x9320.\n\n359\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nextraterritorial jurisdiction: the power to define and punish piracies and offenses\nagainst the law of nations (U.S. Const. art. I, \xc2\xa7 8, cl. 10), and the power to make all\nlaws necessary and proper to implement the power to make treaties (id. art. I, \xc2\xa7 8,\ncl. 18; id. art. II, \xc2\xa7 2, cl. 2).\nArticle I, Section 8, Clause 10 of the Constitution provides that \xe2\x80\x9c[t]he Congress\nshall have Power . . . [t]o define and punish Piracies and Felonies committed on\nthe high Seas, and Offenses against the Law of Nations.\xe2\x80\x9d Piracies and offenses\nagainst the law of nations are international crimes which every nation has a duty to\nprevent. 1 L. Oppenheim, International Law: A Treatise \xc2\xa7 151, at 246 (Ronald F.\nRoxburgh ed., 3d ed. 1920) (\xe2\x80\x9cOppenheim\xe2\x80\x9d). In United States v. Arjona, the\nSupreme Court, in upholding under the Define and Punish Clause the constitutionality of a federal statute preventing and punishing counterfeiting within the United\nStates the money of foreign governments, described the nature of the international\nobligation to enforce laws that define offenses against the law of nations:\nA right secured by the law of nations to a nation, or its people, is one\nthe United States, as the representatives of this nation, are bound to\nprotect. Consequently, a law which is necessary and proper to afford\nthis protection is one that Congress may enact, because it is one that\nis needed to carry into execution a power by the Constitution on the\nGovernment of the United States exclusively . . . . Therefore, the\nUnited States must have the power to pass it and enforce it themselves, or be unable to perform a duty which they may owe to another nation, and which the law of nations has imposed on them as part\nof their international obligations.\n120 U.S. 479, 487 (1887). And in Ex Parte Quirin, the Supreme Court found that\nthe power to define and punish offenses against the law of nations granted to\nCongress the authority to establish the jurisdiction of military tribunals to try\noffenders or offenses against the law of war:\nCongress, in addition to making rules for the government of our\nArmed Forces, has thus exercised its authority to define and punish\noffenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the\nlaw of nations, and more particularly the law of war, are cognizable\nby such tribunals.\n317 U.S. 1, 28 (1942).\nPiracy is the best known example of a crime against the law of nations. The\njurisdiction to arrest and punish has been regarded as universal, that is, even\nthough the offense of piracy may be committed outside the territorial jurisdiction\n\n360\n\n\x0cConstitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy\n\nof any nation, the offender may be subjected to the municipal jurisdiction of any\nnation. 1 Oppenheim \xc2\xa7 151, at 246.\nWhat constitutes piracy has been a matter of uncertainty in international jurisprudence and consequently in United States municipal law, which explicitly relies\non the \xe2\x80\x9claw of nations.\xe2\x80\x9d See Codification of International Law, Part IV: Piracy, 26\nAm. J. Int\xe2\x80\x99l L. Supp. 739, 749, 768\xe2\x80\x93822 (1932) (Research in International Law,\nHarvard Law School). The United States Senate, on May 26, 1990, ratified the\nConvention on the High Seas adopted by the United Nations Conference on the\nLaw of the Sea, which provides that acts of piracy can be committed against ships\nor \xe2\x80\x9caircraft\xe2\x80\x9d if the offense takes place on the high seas or outside the jurisdiction\nof any state. 106 Cong. Rec. 11,178, 11,192; Convention on the High Seas art. 15,\nopened for signature Apr. 29, 1958, 13 U.S.T. 2312, 2317, T.I.A.S. No. 5200\n(entered into force Sept. 30, 1962). To the extent that the word \xe2\x80\x9cpiracy\xe2\x80\x9d in Article I, Section 8, Clause 10 of the Constitution refers only to the traditional\nconcept of piracy\xe2\x80\x94i.e., the overtaking of ships on the high seas and outside the\njurisdiction of any nation\xe2\x80\x94the Define and Punish Clause would not afford a basis\nfor legislation establishing universal jurisdiction over the offense of aircraft\nhijacking. However, this offense now constitutes \xe2\x80\x9can offense against the law of\nnations.\xe2\x80\x9d The Supreme Court in Arjona described \xe2\x80\x9can offense against the law of\nnations as one which the United States are required by their international obligations to use due diligence to prevent.\xe2\x80\x9d 120 U.S. at 488. By the Multilateral\nHijacking Convention, the United States in article 2 undertook the obligation to\npunish aircraft hijacking and related offenses as defined in article 1. Thus, these\noffenses now constitute crimes under international law and, accordingly, fall\nwithin the power of Congress to define and punish as offenses against the law of\nnations.\nCongress is also empowered to enact a provision establishing jurisdiction to\nimplement article 4.2 of the Multilateral Hijacking Convention as legislation\nwhich is necessary and proper for carrying into execution the treaty making power\nof the United States. In Neely v. Henkel, the Supreme Court, in upholding the\nconstitutionality of legislation securing the return to Cuba, to be tried by its\nconstituted authorities, of those who committed crimes within Cuba but escaped to\nthe United States, stated this constitutional principle:\nThe power of Congress to make all laws necessary and proper for\ncarrying into execution as well the powers enumerated in Section 8\nof article I of the Constitution as all others vested in the government\nof the United States, or in any department or the officers thereof, includes the power to enact such legislation as is appropriate to give\nefficacy to any stipulations which it is competent for the President by\nand with the advice and consent of the Senate to insert in a treaty\nwith a foreign power.\n\n361\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n180 U.S. 109, 121 (1901).\nIn Stutz v. Bureau of Narcotics, the court found the Opium Control Act of 1942\nconstitutional because the Act was necessary and proper to carry into execution\nthe treaty resulting from the International Opium Convention of 1912:\nThe power of Congress to enact such legislation as is necessary or\nproper to carry into execution powers vested by the Constitution in\nthe United States, of which the treaty making power is one, includes\nthe right to employ any legislative measures appropriately adapted to\nthe effective exercise of those powers. Julliard v. Greenman, 110\nU.S. 421 (1884). So long as a rationally sound basis exists for the\ncongressional determination that particular legislation is appropriately related to the discharge of constitutional powers, the validity of\nsuch legislation is unassailable.\n56 F. Supp. 810, 813 (N.D. Cal. 1944).\nThus, if the United States is empowered to enter into treaty stipulations with\nforeign powers designed to protect aircraft from unlawful seizure and if the\nestablishment of extraterritorial jurisdiction is a legislative measure appropriately\nadapted to implement the ends sought in the Multilateral Hijacking Convention,\nthe legislation is constitutional. In our view, both of these predicates are established. We believe that it is clear that the federal government had the authority\nunder the treaty-making power (U.S. Const. art. II, \xc2\xa7 2, cl. 2) to enter into the\ntreaty stipulations found in the Convention. While the Supreme Court has never\ndeclared a treaty or any provision in it unconstitutional, the Court has stated that\nthe treaty power is not unlimited, DeGeofrey v. Riggs, 133 U.S. 258 (1890),\nalthough it has not attempted to fix any hard or fast limits to that power. The Court\nhas stated, however, that the test of the treaty power of the government is different\nfrom that of the power of Congress to enact domestic legislation: \xe2\x80\x9cIt is obvious\nthat there may be matters of the sharpest exigency for the national well being that\nan act of Congress could not deal with but that a treaty followed by such an act\ncould . . . .\xe2\x80\x9d Missouri v. Holland, 252 U.S. 416, 433 (1920).\nHere the subject of the Multilateral Hijacking Convention\xe2\x80\x94the regulation and\nprotection of foreign commerce\xe2\x80\x94is clearly a matter within the scope of the treatymaking power. As the Supreme Court said in Arjona, sovereigns are obliged to\nprotect commerce. 120 U.S. at 484. In this instance, an interest of international\nmagnitude and ramifications is involved\xe2\x80\x94the security of aircraft, passengers and\ncargo. It can be protected only by the action of one sovereign conducted in concert\nwith that of another. Cf. Missouri v. Holland, 252 U.S. 416 (1920). And the means\nchosen in article 4.2\xe2\x80\x94the assertion of universal jurisdiction over an offender\nwhom the contracting nation does not choose to extradite\xe2\x80\x94does not, in our view,\ncontravene any prohibitory words to be found in the Constitution. Likewise, we\nbelieve that it is evident that the legislation implementing article 4.2 is a legitimate\n\n362\n\n\x0cConstitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy\n\nmeans to accomplish this end and therefore is \xe2\x80\x9cappropriately related to the\ndischarge of constitutional powers.\xe2\x80\x9d Stutz, 56 F. Supp. at 813.\nII. Arrest Authority of Local Law Enforcement Officers and\nPrivate Security Personnel\nA. Authority of Local Law Enforcement Officers to Arrest\nfor Violations of Federal Law\nAt the threshold it is necessary to point out that the question whether a state law\nenforcement officer has the authority to arrest does not arise where the offender\ncommits an offense that violates state law as well as federal law. For example, the\nsingle act of robbery of a state bank whose funds are insured by the Federal\nDeposit Insurance Corporation constitutes an offense under both state law and the\nFederal Bank Robbery Statute, 18 U.S.C. \xc2\xa7 2113. Because the act violates state\nlaw, the state officer is clearly authorized to arrest the offender and subsequently\nturn him over to federal officials for prosecution under federal law. It is our\nunderstanding that in situations involving the offense of hijacking and related\noffenses, the hijacker often commits offenses which are proscribed under both\nfederal and state law. Thus, there is no question as to the state officer\xe2\x80\x99s power to\narrest in such situations. The question arises then only in relatively rare instances\nwhere the offense is one proscribed under federal law but not under state law.\n1. Arrest With a Warrant\nSection 3041 of title 18, U.S. Code, provides that:\nFor any offense against the United States, the offender may, by any\njustice or judge of the United States, or by any United States magistrate, or by any chancellor, judge of a supreme or superior court,\nchief or first judge of common pleas, major of a city, justice of the\npeace, or other magistrate, of any state where the offender may be\nfound, and at the expense of the United States, be arrested . . . .\n. . . Any state judge or magistrate acting hereunder may proceed according to the usual mode of procedure of his state but his acts and\norders shall have no effect beyond determining to hold the prisoner\nfor trial or to discharge him from arrest.\nThe source of this provision is a statute enacted by the first Congress in 1789 (Act\nof Sept. 24, 1789, ch. 20, \xc2\xa7 33, 1 Stat. 91), and it has consistently been interpreted\nas conferring on state law enforcement officers the authority to arrest when acting\npursuant to an arrest warrant. Harris v. Super. Ct. of Sacramento Cnty., 196 P. 895\n\n363\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n(Cal. App. 1921); Goulis v. Stone, 140 N.E. 294 (Mass. 1923); Lensku v. O\xe2\x80\x99Brien,\n232 S.W. 235 (Mo. App. 1921).\n2. Arrest Without a Warrant\nNo act of Congress authorizes state officers to arrest for federal offenses when\nthey act without an arrest warrant. However, a number of federal courts have\nrecognized the authority of state officers to arrest those who violate federal laws\nwhen state law confers such authority on state law enforcement officers. In Marsh\nv. United States, the Second Circuit held that a New York State trooper had the\nauthority to arrest the defendant without a warrant for a federal offense committed\nin his presence by virtue of the New York arrest statute which empowered state\npeace officers to arrest without a warrant a person committing a crime in their\npresence. 29 F.2d 172 (1928). The court noted that peace officers in New York\ncustomarily arrested for federal offenses and considered this practice as evidence\nof the meaning of the state arrest law:\nSection 2 of article 6 of the Constitution makes all laws of the United\nStates the supreme law of the land, and the National Prohibition Law\nis as valid a command within the borders of New York as one of its\nown statutes. True, the state may not have, and has not, passed any\nlegislation in aid of the Eighteenth Amendment, but from that we do\nnot infer that general words used in her statutes must be interpreted\nas excepting crimes which are equally crimes, though not forbidden\nby her express will. We are to assume that she is concerned with the\napprehension of offenders against laws of the United States, valid\nwithin her borders, though they cannot be prosecuted in her own\ncourts.\nId. at 174. In United States v. Di Re, the Supreme Court assumed that a state\nofficer may arrest without a warrant for a federal offense when so authorized by\nstate law in ruling that when a state law enforcement officer makes such an arrest,\nthe law of the state \xe2\x80\x9cprovides the standard by which [the] arrest must stand or fall\xe2\x80\x9d\nwhere Congress has not enacted a federal rule governing the arrest. 332 U.S. 581,\n591 (1948). See also Miller v. United States, 357 U.S. 301, 305 (1958). Thus, state\nlaw determines whether the law enforcement officers of that state may arrest\nfederal offenders without an arrest warrant.\nA survey of United States Attorneys by the General Crimes Section of the\nCriminal Division indicates that only eleven states have no laws conferring on\ntheir law enforcement officers the authority to arrest for federal offenses without a\n\n364\n\n\x0cConstitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy\n\nwarrant.3 In these eleven states, however, the United States Attorneys indicate that\nin most situations state offenses are committed which thereby empower the officer\nto arrest the offender.\nB. Authority of the Federal Government Under Existing Federal\nLaw to Delegate Arrest Authority to Local Law Enforcement\nOfficers or Private Security Personnel\n1. Delegation to Local Law Enforcement Officers\nThe federal government has \xe2\x80\x9cfrom the time of its establishment . . . been in the\nhabit of using, with the consent of the States, their officers, tribunals, and institutions as its agents\xe2\x80\x9d to accomplish national goals. United States v. Jones, 109 U.S.\n513, 519 (1883). The contention that the United States as a government sui generis\ncannot delegate authority to state officials because they operate under a different\ngovernment has always been rejected on the ground that our system is one of\nfederalism and not an alliance of foreign states. Id.; Ex parte Laswell, 36 P.2d 678,\n687 (Cal. App. 1934). In Arver v. United States, the Supreme Court, in upholding\nthe placement of administrative authority in the hands of state officials under the\nSelective Service draft statutes of World War I, overruled the objection that this\nconstituted an invalid delegation of federal legislative power to state officials\nsaying that it was \xe2\x80\x9ctoo wanting in merit to require further notice.\xe2\x80\x9d 245 U.S. 366,\n389 (1918). See also Dallemagne v. Moisan, 197 U. S. 169 (1905) (local police\nofficer empowered to arrest crew-member of foreign vessel, under federal treaty\nauthorization); Robertson v. Baldwin, 165 U.S. 275 (1897) (arrests of deserting\nseaman by local justices of the peace).\nHaving the power to enact a federal law proscribing certain conduct, Congress\ncan under the Supremacy Clause impose upon state law enforcement officials the\nauthority and duty to enforce the federal law. In Testa v. Katt, the Supreme Court\nheld that, by virtue of the Supremacy Clause, a state court was not free to refuse to\nhear a federal cause of action. 330 U.S. 386 (1947). There a suit under the\nEmergency Price Control Act, which established concurrent jurisdiction in the\nstate and federal courts, was brought in state court but was dismissed by the state\nsupreme court on the ground that a state need not enforce the penal laws of a\ngovernment which is foreign to it. The Supreme Court reversed and declared that a\nstate does not have a right to deny enforcement to claims arising out of a valid\nfederal statute. In effect, a state official, a judge, was compelled to enforce federal\nlaw.\n\n3\nThose states are Connecticut, Hawaii, Illinois, Indiana, Maine, Massachusetts, Missouri, Montana,\nNevada, North Carolina, and Vermont. Of the 39 states conferring such authority on their law\nenforcement officers, eight do not empower the officers to arrest for misdemeanors not committed\nwithin the officers\xe2\x80\x99 presence.\n\n365\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIn Henderson v. United States, the Court of Appeals for the Fifth Circuit applied the Testa rationale to the question of delegation of arrest authority by the\nfederal government to state officials:\nIt was at an early date questioned whether Congress could constitutionally impose upon state officers the power and duty to enforce\nfederal criminal law . . . ; but that issue has now been settled in the\naffirmative upon the basis of the supremacy clause and of \xe2\x80\x9cthe fact\nthat the States of the Union constitute a nation.\xe2\x80\x9d\n237 F.2d 169, 175\xe2\x80\x9376 (5th Cir. 1956) (quoting Testa, 330 U.S. at 389). \xe2\x80\x9cThere [in\nTesta] the Court definitely \xe2\x80\x98repudiated the assumption that federal laws can be\nconsidered by the states as though they were laws emanating from a foreign\nsovereign.\xe2\x80\x99\xe2\x80\x9d Id. at 176 (quoting Testa, 330 U.S. at 390\xe2\x80\x9391). Accordingly, Congress can authorize state law enforcement officers to arrest for federal offenses in\norder to assist the federal government in accomplishing the goals of an anti-hijack\nprogram. Likewise, where authorized by Congress, an executive department can\ndelegate the authority to arrest to state or local law enforcement officers. For\nexample, a United States Marshal is authorized to appoint state officials as Deputy\nUnited States Marshals thereby conferring on them the authority to arrest for\nfederal crimes. See infra Part II.D.\n2. Delegation to Private Security Personnel\nIn 1934, it was said that \xe2\x80\x9c[t]here is considerable confusion and uncertainty as to\nwhat powers may be delegated by the legislature to private individuals, corporations, and associations, and how far the operation of a statute may be made to\ndepend upon the action of such private person.\xe2\x80\x9d Annotation, Possible Limits of\nDelegation of Legislative Power, 79 L. Ed. 474, 495 (1934). The confusion and\nuncertainty remains as to this day. See Louis L. Jaffe & Nathaniel L. Nathanson,\nAdministrative Law: Cases and Materials 78\xe2\x80\x9381 (3d ed. 1968).\nIn St. Louis, I.M. & S.R. Co. v. Taylor, the Supreme Court held that a provision\nof the Federal Safety Appliance Act authorizing the American Railway Association to designate to the Interstate Commerce Commission the standard height of\ndrawbars for railroad cars did not involve an unconstitutional delegation of power\nto the Railway Association. 210 U.S. 281 (1908). On the other hand, in Carter v.\nCarter Coal Co., the Court held unconstitutional a delegation to private parties.\nThere the Court invalidated the Bituminous Coal Conservation Act of 1935 which\nrequired all Code members to observe maximum hours agreed to in contracts\nnegotiated between producers of two-thirds of the annual national tonnage and\nrepresentatives of more than one-half of the employed mine workers. 298 U.S. 238\n(1936). The Court found that this delegation violated the Due Process Clause of\nthe Fifth Amendment:\n\n366\n\n\x0cConstitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy\n\nThe power conferred on the majority is in effect the power to regulate the affairs of an unwilling minority. This is legislative delegation\nin it most obnoxious form; for it is not even delegation to an official\nor an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of\nothers on the same business.\nId. at 311. In a subsequent case, Old Dearborn Co. v. Seagram Corp., Mr. Justice\nSutherland, the author of the opinion in Carter Coal, speaking for the Court, said:\nWe find nothing in [the application of the so-called non-signer provisions of the Fair Trade Acts making it unlawful for any person to sell\na commodity at a lower price than that stipulated in a contract between third parties] to justify the contention that there is an unlawful\ndelegation of power to private persons to control the disposition of\nthe property of others . . . .\n299 U.S. 183, 194 (1934). The Court distinguished Carter Coal on the ground that\nthere the property affected had been acquired without any preexisting restriction\nwhereas, in Old Dearborn, \xe2\x80\x9cthe restriction, already imposed with the knowledge\nof appellants, ran with the acquisition and conditioned it.\xe2\x80\x9d Id.\nAll of the above cases dealt with the delegation of legislative power. Here\nhowever we are concerned with the authorization of certain private individuals to\nexercise an executive power\xe2\x80\x94the arrest power\xe2\x80\x94over other individuals. Private\nindividuals have long been used as instrumentalities of the government. See\nWilson v. Black-Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829) (a measure\nbenefitting the public held valid although it was to be made effective through the\ninstrumentality of a private company). Section 507 of title 19, U.S. Code, authorizes a customs officer \xe2\x80\x9cto demand of any person . . . to assist him in making any\narrests, search or seizure authorized by [title 19, Customs Duties].\xe2\x80\x9d Private\nindividuals also have been authorized to arrest and carry firearms when specifically deputized as Deputy United States Marshals. 18 U.S.C. \xc2\xa7 3053. See infra Part\nII.D.\nIt is arguable that, so long as adequate standards are established to govern the\nconduct of the private individuals, Congress can constitutionally authorize private\nindividuals to exercise the arrest power. However, such a step will inexorably\npresent problems in defining the category of private individuals who are or should\nbe accorded the arrest authority, delineating the territorial limits of the authority\naccorded and determining which, if any, of the immunities, rights, and duties of\nfederal law enforcement officers are applicable to the private individuals. The\nstandards for the arrest and the law enforcement powers, such as the power to\nsearch and seize, that are concomitant to the power to arrest also present problems\nof definition. Concerns such as these and more generally the concern over the\n\n367\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nexercise of power left in the hands of unofficial persons who owe no allegiance to\nthe government other than as citizens, may well have led to the enactment in 1893\nof the Act of March 3, 1893, ch. 208, 27 Stat. 572, 591 (now codified as amended\nat 5 U.S.C. \xc2\xa7 3108), which prohibits the employment by the federal government of\nany individual employed by the Pinkerton Detective Agency or similar organization.\nTo our knowledge there are presently no federal statutes, other than 19 U.S.C.\n\xc2\xa7 507 and 18 U.S.C. \xc2\xa7 3053 referred to above, authorizing private individuals to\narrest or to assist in the arrest for federal crimes. Thus, the power of private\nsecurity personnel to arrest for federal offenses depends on whether state law\naccords them this power, see infra Part II.C, or on whether they have been\n\xe2\x80\x9cdelegated\xe2\x80\x9d the arrest power from a body that possesses that power, e.g., the\nUnited States Marshals Service, which \xe2\x80\x9cdelegates\xe2\x80\x9d the arrest power by deputization, see infra Part II.D.\nC. Existing Authority of Private Security Personnel to Arrest for\nViolation of Federal or Local Laws\nThe answer to this question, like the answer to the question concerning the\nauthority of local law enforcement officers to arrest for federal offenses without a\nwarrant, see supra Part II.A.2, must be found in state law. We have not attempted\na comprehensive survey of state law in this respect. It is our understanding,\nhowever, that there is no general rule. While some states limit the authority to\ncarry firearms and/or to arrest to law enforcement officers, others authorize private\ndetectives or security guards to arrest and carry arms.\nD. Authority of the Federal Government to Deputize Private Security\nPersonnel as Deputy United States Marshals\nSection 562 of title 28, U.S. Code, provides that the Attorney General may\nauthorize a United States Marshal to appoint deputies. Pursuant to 28 U.S.C.\n\xc2\xa7 510, the Attorney General has delegated this function to the Director, United\nStates Marshals Service, 28 C.F.R. \xc2\xa7 0.17, who in turn has authorized United\nStates marshals, upon the approval of the Office of the Director or in acute\nemergency situations, independently, to deputize federal employees and other\npersons as Deputy United States Marshals. United States Marshals Manual\n\xc2\xa7 130.01.\nA marshal may deputize a private citizen to assist him in the performance of his\nofficial duties. Jewett v. Garrett, 47 F. 625 (C.C. N.J. 1891); cf. Murray v. Pfeiffer,\n59 A. 147 (N.J. Err. & App. 1904). In specific instances, 5 U.S.C. \xc2\xa7 3108 may\nprohibit the deputization of an individual employed by the Pinkerton Detective\nAgency or similar organization. Moreover, although the authority to deputize\n\n368\n\n\x0cConstitutionality of Legislation to Establish a Program to Prevent Aircraft Piracy\n\nprivate individuals on an emergency basis is clear, long-term deputizations may be\nquestionable. See United States Marshals Manual \xc2\xa7 130.01.\nROBERT G. DIXON, JR.\nAssistant Attorney General\nOffice of Legal Counsel\n\n369\n\n\x0c'