b'Authority of the Federal Bureau of Investigation\nTo Override International Law\nIn Extraterritorial Law Enforcement Activities\nAt the direction of the President or the Attorney General, the FBI may use its statutory\nauthority to investigate and arrest individuals for violating United States law, even if the\nFBI\xe2\x80\x99s actions contravene customary international law.\nThe President, acting through the Attorney General, has the inherent constitutional author\xc2\xad\nity to deploy the FBI to investigate and arrest individuals for violating United States law,\neven if those actions contravene customary international law.\nExtraterritorial law enforcement activities that are authorized by domestic law are not\nbarred even if they contravene unexecuted treaties or treaty provisions, such as Article\n2(4) of the United Nations Charter.\nAn arrest that is inconsistent with international or foreign law does not violate the Fourth\nAmendment.\n\nJune 21, 1989\nM e m o r a n d u m O p in io n\n\nfo r the\n\nAttorney G eneral\n\nThis memorandum responds to the request o f the Federal Bureau o f\nInvestigation ( \xe2\x80\x9cFBI\xe2\x80\x9d) that we reconsider our 1980 opinion that the FBI\nhas no authority under 28 U.S.C. \xc2\xa7 533(1) to apprehend and abduct a fugi\xc2\xad\ntive residing in a foreign state when those actions would be contrary to\ncustomary international law. Extraterritorial Apprehension by the\nFederal Bureau of Investigation, 4B Op. O.L.C. 543 (1980) (the \xe2\x80\x9c 1980\nOpinion\xe2\x80\x9d or \xe2\x80\x9cOpinion\xe2\x80\x9d). After undertaking a comprehensive review o f the\napplicable law, we conclude that the 1980 Opinion erred in ruling that the\nFBI does not have legal authority to carry out extraterritorial law\nenforcement activities that contravene customary international law.\nFirst, we conclude that, with appropriate direction, the FBI may use its\nbroad statutory authority under 28 U.S.C. \xc2\xa7 533(1) and 18 U.S.C. \xc2\xa7 3052 to\ninvestigate and arrest individuals for violations o f United States law even\nif those investigations and arrests are not consistent with international\nlaw. Second, we conclude that the President, acting through the Attorney\nGeneral, has inherent constitutional authority to order the FBI to investi\xc2\xad\ngate and arrest individuals in a manner that departs from international\nlaw. The international law that may be abridged in this manner includes\n163\n\n\x0cnot only customary international law but also Article 2(4) o f the U.N.\nCharter and other unexecuted treaties or treaty provisions that have not\nbecome part o f the domestic law o f the United States. Finally, we reaffirm\nthe conclusion o f the 1980 Opinion that an arrest departing from interna\xc2\xad\ntional law does not violate the Fourth Amendment, and we further con\xc2\xad\nclude that an arrest in violation o f foreign law does not abridge the\nFourth Amendment.1\nWe caution that this memorandum addresses only whether the FBI has\nthe legal authority to carry out law enforcement operations that contra\xc2\xad\nvene international law. It does not address the serious policy considera\xc2\xad\ntions that may weigh against carrying out such operations.\n\nI. The 1980 Opinion\nThe 1980 Opinion addressed the legal implications o f a proposed oper\xc2\xad\nation in which FBI agents would forcibly apprehend a fugitive in a foreign\ncountry that would not consent to the apprehension. That Opinion\nacknowledges that 28 U.S.C. \xc2\xa7 533(1), the statute authorizing FBI investi\xc2\xad\ngations, contains no explicit geographical restrictions. It also refers to a\nprevious opinion issued by this Office that concluded that the statute\xe2\x80\x99s\ngeneral authorization to detect and prosecute crimes against the United\nStates appears broad enough to include such law enforcement activity no\nmatter where it is undertaken.2 4B Op. O.L.C. at 551. The 1980 Opinion\nasserts, however, that customary and other international law limits the\nreach o f section 533(1). Under customary international law, as viewed by\nthe 1980 Opinion, it is considered an invasion o f sovereignty for one\ncountry to carry out law enforcement activities within another country\nwithout that country\xe2\x80\x99s consent. Thus, the Opinion concludes that section\n533(1) authorizes extraterritorial apprehension o f a fugitive only where\nthe apprehension is approved by the asylum state. Id.\n\n1The 1980 Opinion concluded that FBI agents who participate in overseas arrests in violation o f inter\xc2\xad\nnational law might be subject to civil liability Because w e now conclude that FBI agents do have author\xc2\xad\nity to engage in such actions, we do not believe they w ill be subject to civil liability. We do not discuss\nthat issue in this memorandum, however, because the FBI agreed that our opinion concerning the FBI\'s\nsubstantive authority should precede any analysis o f civil liability issues. See Memorandum fo r John O\nMcGinnis, Deputy Assistant Attorney General, O ffice o f Legal Counsel, from Margaret Love, Deputy\nAssociate Attorney General (Mar 15, 1989).\nTh e 1980 Opinion also addressed several other issues, including whether bringing a fugitive before the\ncourt b y forcible methods would impair the court\xe2\x80\x99s pow er to try the fugitive. We agree with the 1980\nO pinion\xe2\x80\x99s conclusion that, absent cruel o r outrageous treatment, the fact that the fugitive was brought\nwithin the court\xe2\x80\x99s jurisdiction by means o f forcible abduction would not impair the court\xe2\x80\x99s pow er to try\nthe fugitive. See Pnsbie v Colltns, 342 U.S. 519 (1952); K er v. Illinois, 119 U S. 436 (1886), United States\nv. Toscanino, 500 F.2d 267 (2d Cir 1974). We do not reconsider any issues addressed by the 1980 Opinion\nthat are not specifically discussed in this memorandum.\n2 The referenced opinion is a June 8, 1978 Memorandum for the Counselor to the Attorney General,\nfrom the Deputy Assistant Attorney General, Office o f Legal Counsel, on FBI investigative activities in a\nforeign country (the \xe2\x80\x9c 1978 Opinion\xe2\x80\x9d)\n\n164\n\n\x0cThe Opinion supports this conclusion with \xe2\x80\x9ctwo distinct but related\nlines o f analysis.\xe2\x80\x9d Id. at 552. First, citing The Schooner Exchange v.\nMcFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) (Marshall, C.J.), the\nOpinion concludes that the authority o f the United States outside its ter\xc2\xad\nritory is limited by the sovereignty o f other nations. The Opinion does not\nexplain the juridical source o f this limitation on the authority o f the\nUnited States. In The Schooner Exchange, however, Chief Justice\nMarshall relies on customary international law for many o f his conclu\xc2\xad\nsions, and this part o f the 1980 Opinion appears to suggest that custom\xc2\xad\nary international law imposes absolute jurisdictional limitations on the\nUnited States\xe2\x80\x99 lawmaking authority.\nSecond, the Opinion implicitly relies on the principle o f statutory con\xc2\xad\nstruction that statutes should be construed, when possible, so as to avoid\nconflict with international law. The Opinion notes that a statute imposing\na duty ordinarily is construed to authorize all reasonable and necessary\nmeans o f executing that duty. The Opinion concludes that although the\nlaw enforcement methods at issue may be necessary to carry out the FBI\nagents\xe2\x80\x99 duties under section 533(1), those methods are \xe2\x80\x9cunreasonable\xe2\x80\x9d\nand hence, unauthorized, if executed in violation o f international law.\nThus, the Opinion concludes that without asylum state consent, \xe2\x80\x9cthe FBI\nis acting outside the bounds o f its statutory authority when it makes an\napprehension o f the type proposed here \xe2\x80\x94 either because \xc2\xa7 533 could not\ncontemplate a violation o f international law or because the powers o f the\nFBI are delimited by those o f the enabling sovereign.\xe2\x80\x9d Id. at 553.\nThe 1980 Opinion\xe2\x80\x99s impact on the ability o f the United States to execute\nnecessary law enforcement operations may be significant. The reasoning\no f the 1980 Opinion would seem to apply to a broad range o f law enforce\xc2\xad\nment activities other than forcible apprehension. United States law\nenforcement agents frequently are required to travel to foreign countries\nto conduct investigative activities or to meet foreign informants. Formal\nconsent cannot always be obtained from the foreign government, and\nindeed, in many cases to seek such consent would endanger both the\nagents and their investigation. Although such activities are less intrusive\nthan forcible apprehension and removal o f the fugitive, under the 1980\nOpinion they nonetheless may be viewed as encroachments on the asy\xc2\xad\nlum state\xe2\x80\x99s sovereignty and hence, violations of international law, if not\nauthorized by that state. See Ian Brownlie, Principles o f Public\nInternational Law 307 (3d ed. 1979) ( \xe2\x80\x9cBrownlie\xe2\x80\x9d) ( \xe2\x80\x9cPolice or tax investi\xc2\xad\ngations may not be mounted ... on the territory o f another state, except\nunder the terms o f a treaty or other consent given.\xe2\x80\x9d); 6 Marjorie M.\nWhiteman, Digest of International Law 179-83 (1968) (describing inci\xc2\xad\ndents in which American authorities sought and received permission\nfrom host country to interview persons held in foreign custody and to\nexamine records). Thus, the 1980 Opinion has the potential to preclude\nthe United States not only from apprehending fugitives in foreign eoun165\n\n\x0ctries, but also from engaging in a variety o f more routine law enforcement\nactivities.\nThe United States is facing increasingly serious threats to its domestic\nsecurity from both international terrorist groups and narcotics traffick\xc2\xad\ners. While targeting the United States and United States citizens, these\ncriminal organizations frequently operate from foreign sanctuaries.\nUnfortunately, some foreign governments have failed to take effective\nsteps to protect the United States from these predations, and some for\xc2\xad\neign governments actually act in complicity with these groups.\nAccordingly, the extraterritorial enforcement o f United States laws is\nbecoming increasingly important to the nation\xe2\x80\x99s ability to protect its own\nvital national interests.\n\nII. Analysis\nA. The Scope o f the F B I\xe2\x80\x99s Statutory Authority\n\nThe general investigative authority o f the FBI derives from 28 U.S.C. \xc2\xa7\n533(1), which provides that \xe2\x80\x9c [t]he Attorney General may appoint officials\nto detect and prosecute crimes against the United States.\xe2\x80\x9d This provision\nwas first enacted in 1921 as part o f the Department o f Justice\nAppropriations Act, ch. 161, 41 Stat. 1367, 1411 (1921). As originally\nenacted, it also provided that the officials appointed by the Attorney\nGeneral \xe2\x80\x9cshall be vested with the authority necessary for the execution of\n[their] duties.\xe2\x80\x9d Id. This provision was carried forward in successive\nappropriations acts and received permanent codification in 1966. Pub. L.\nNo. 89-554, \xc2\xa7 4(c), 80 Stat. 378, 616 (1966). At that time, the reference to\n\xe2\x80\x9cnecessary\xe2\x80\x9d authority was dropped as surplusage because \xe2\x80\x9cthe appoint\xc2\xad\nment o f the officials for the purposes indicated carries with it the author\xc2\xad\nity necessary to perform their duties.\xe2\x80\x9d H.R. Rep. No. 901, 89th Cong., 1st\nSess. 190 (1965).\nThe FBI\xe2\x80\x99s arrest authority derives from 18 U.S.C. \xc2\xa7 3052,3 which pro\xc2\xad\nvides:\nThe Director, Associate Director, Assistant to the\nDirector, Assistant Directors, inspectors, and agents o f the\nFederal Bureau of Investigation o f the Department o f\nJustice may carry firearms, serve warrants and subpoenas\nissued under the authority o f the United States and make\narrests without warrant for any offense against the United\nStates committed in their presence, or for any felony cog\xc2\xad\nnizable under the laws o f the United States if they have rea\xc2\xad\n3\n\nThe 1980 Opinion did not discuss section 3052, apparently believing that section 533(1) also provided\n\nthe authonty fo r the FB I\xe2\x80\x99s pow er to make arrests\n\n166\n\n\x0csonable grounds to believe that the person to be arrested\nhas committed or is committing such felony.\nWe believe, consistent with earlier opinions o f this Office, that sections\n533(1) and 3052 authorize extraterritorial investigations and arrests.4\nSection 533(1) has been described as granting \xe2\x80\x9cbroad general investiga\xc2\xad\ntive power.\xe2\x80\x9d United States v. Marzani, 71 F. Supp. 615, 617 (D.D.C. 1947),\naff\xe2\x80\x99d, 168 F.2d 133 (D.C. Cir.), affd, 335 U.S. 895 (1948) (per curiam).\nSection 3052 confers an equally broad arrest power. Neither statute by its\nterms limits the FBI\xe2\x80\x99s authority to operations conducted within the\nUnited States.5 Moreover, reading these sections as applying extraterritorially accords with Congress\xe2\x80\x99 intent to give certain criminal statutes\nextraterritorial reach.6 In many statutes, Congress has extended the\nUnited States\xe2\x80\x99 substantive criminal jurisdiction extraterritorially. See,\ne.g., 18 U.S.C. \xc2\xa7 844(i) (enacting penalties for destruction o f property\nused in foreign commerce); 18 U.S.C. \xc2\xa7 1116(c) (implementing Con\xc2\xad\nvention on the Prevention and Punishment o f Crimes Against Inter\xc2\xad\nnationally Protected Persons); 18 U.S.C. \xc2\xa7 1203(b)(1) (implementing\nHostage Convention); 49 U.S.C. \xc2\xa7 1472(1) (enacting penalties for carrying\nweapons or explosives aboard aircraft). These statutes are enforced\nprincipally by the FBI. In order for the FBI to have the authority neces\xc2\xad\nsary to execute these statutes, its investigative and arrest authority must\nhave an equivalent extraterritorial scope.7\n\n4 Our 1978 Opinion concluded that section 533(1) authorized extraterritorial investigations, and our\n1980 Opinion did not disagree with that conclusion.\n6The Court repeatedly has held that Congress\xe2\x80\x99 intent to have its laws apply extraterritorially need not\nhe explicitly stated where the statute involves the sovereign\xe2\x80\x99s ability to defend itself against cnm cs\nagainst the sovereign See, e g , Blackmer v United States, 284 U S 421, 437 (1932), United States v.\nBowman, 260 U S. 94, 98 (1922).\n6Courts frequently have held that Congress has the pow er to criminalize extraterritorial conduct,\nwhether committed by American citizens or foreign citizens, if the conduct (i) threatens the country\xe2\x80\x99s\nsecurity or interferes with governmental operations or (ii) is intended to have an illegal effect in the\nUnited States. See e g , United States v Columba-Colella, 604 F.2d 356, 359 (5th Cir 1979) (collecting\ncases), United States v King, 552 F2d 833 (9th Cir. 1976), cert denied, 430 U.S. 966 (1977) As the Court\nheld in United States v Bowman, cnminal statutes that are enacted because o f the government\xe2\x80\x99s right\nto defend itself must apply abroad, otherwise, \xe2\x80\x9cto limit their locus to the stnctly territorial junsdiction\nwould ... greatly curtail the scope and usefulness o f the statute \xe2\x80\x9d 260 U.S at 98 Although Bowman\ninvolved Congress\xe2\x80\x99 prescnptive power, the Court also applied this pnnciple to an enforcem ent action in\n\nBlackmer v. United States Blackmer upheld a contempt citation against an American citizen residing in\nFrance who refused to appear as a witness in a criminal trial. The Court noted that the sovereign\xe2\x80\x99s pow er\nto protect itself would be meaningless if the court\xe2\x80\x99s enforcement powers were not coextensive with the\nlegislature\xe2\x80\x99s pow er to cnminalize the conduct See 284 U.S at 438-39\n7Other considerations support this conclusion. As discussed infra at p. 172, a general enabling statute\nthat confers broad authority on an agency to effectuate core executive functions should, absent explicit\nrestnction, be read as conferring on the agency authonty that is commensurate with the inherent ex ec\xc2\xad\nutive functions it is effectuating Since the President\xe2\x80\x99s law enforcement authonty has extraterritonal\nscope, the FBI\xe2\x80\x99s basic statutory authority should be read as having the same scope.\nIt has been suggested to us that because professional bail bondsmen lack power to arrest bail jumpers\noutside the tem to ry o f the United States, seeKearv. Hilton, 699 F2d 181, 182 (4th Cir 1983), FBI agents\nContinued\n\n167\n\n\x0cB. The Effect o f Customary International Law on the F B I\xe2\x80\x99s\nExtraterritorial Powers\n\nThe 1980 Opinion offers tw o bases for its conclusion that customary\ninternational law limits the FBI\xe2\x80\x99s extraterritorial powers. First, the\nOpinion asserts that the FBI\xe2\x80\x99s powers are delimited by those o f the\nenabling sovereign and that the United States itself lacks the legal author\xc2\xad\nity to take actions that contravene customary international law. The\nimplication is that both Congress and the Executive are powerless to\nauthorize actions that impinge on the sovereignty o f other countries.\nSecond, the Opinion concludes that the FBI\xe2\x80\x99s statutory authority must be\nread as constricted by the requirements o f customary international law.\nWe conclude that both bases fo r decision are erroneous.\n1. Effect on the Sovereign\xe2\x80\x99s Power\nThe 1980 Opinion was clearly wrong in asserting that the United States\nis legally powerless to carry out actions that violate international law by\nimpinging on the sovereignty o f other countries. It is well established that\nboth political branches \xe2\x80\x94 the Congress and the Executive \xe2\x80\x94 have, with\xc2\xad\nin their respective spheres, the authority to override customary interna\xc2\xad\ntional law. Indeed, this inherent sovereign power has been recognized\nsince the earliest days of the Republic.\nIn The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812),\nChief Justice Marshall explicitly stated that the United States has the\nauthority to override international law. At issue was whether a French\nwarship was immune from judicial process within the territory o f the\nUnited States. Relying on customary international law, Marshall conclud\xc2\xad\ned that it was immune, but stated that the Court had followed these cus\xc2\xad\ntomary international law principles only in default o f any declaration by\nthe United States government that they were not to be followed:\nIt seems then to the Court, to be a principle o f public law,\nthat national ships o f war, entering the port o f a friendly\npower open for their reception, are to be considered as\nexempted by the consent o f that power from its jurisdiction.\n\n7(.. continued)\nsimilarly lack extraterritorial arrest authority, regardless o f whether the arrest violates international law.\nHowever, the arrest authority o f professional bail bondsmen is denved from common law, see Taylor v.\n\nTaintor, 83 U.S (16 Wall ) 366, 371 (1872), and thus is amenable to judicial limitation; this does not sug\xc2\xad\ngest that the F B I\xe2\x80\x99s broad statutory authority under 28 U S C. \xc2\xa7 533 and 18 U S.C. \xc2\xa7 3052 may be similar\xc2\xad\nly limited Indeed, because responsibility fo r the conduct o f foreign relations is vested in the Executive,\nnot pn vate citizens, it is appropriate that the Executive\xe2\x80\x99s authonty should extend extraterritonally, while\nthe authority o f bail bondsmen should be deem ed restncted to the boundaries o f the United States.\n\n168\n\n\x0cWithout doubt, the sovereign of the place is capable of\ndestroying this implication. He may claim and exercise\njurisdiction, either by employing force, or by subjecting\nsuch vessels to the ordinary tribunals. But until such power\nbe exerted in a manner not to be misunderstood, the sover\xc2\xad\neign cannot be considered as having imparted to the ordi\xc2\xad\nnary tribunals a jurisdiction, which it would be a breach of\nfaith to exercise.\nId. at 145-46 (emphasis added).8\n\nChief Justice Marshall unequivocally reaffirmed the validity o f this\nprinciple in Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), in\nwhich he stated:\nThis usage [the rule o f customary international law] is a\nguide which the sovereign follows or abandons at his will.\nThe rule, like other precepts o f morality, o f humanity, and\neven o f wisdom, is addressed to the judgment o f the sover\xc2\xad\neign; and although it cannot be disregarded by him without\nobloquy, yet it may be disregarded.\nId. at 128 (emphasis added). The understanding that the political branch\xc2\xad\n\nes have the power under the Constitution to exercise the sovereign\xe2\x80\x99s right\nto override international law (including obligations created by treaty) has\nbeen repeatedly recognized by the courts. See The Paquete Habana, 175\nU.S. 677, 700 (1900) (courts must apply customary international law\nunless there is a treaty or a controlling executive or legislative act to the\ncontrary); The Chinese Exclusion Case, 130 U.S. 581, 602 (1889) (noting\nthat \xe2\x80\x9c[t]he question whether our government is justified in disregarding\nits engagements with another nation is not one for the determination o f\nthe courts\xe2\x80\x9d); Diggs v. Shultz, 470 F.2d 461, 466 (D.C. Cir. 1972) (stating\nthat \xe2\x80\x9c[u]nder our constitutional scheme, Congress can denounce treaties\nif it sees fit to do so\xe2\x80\x9d), cert, denied, 411 U.S. 931 (1973); Tag v. Rogers, 267\nF.2d 664, 668 (D.C. Cir. 1959) (concluding that \xe2\x80\x9c [w]hen, however, a con\xc2\xad\nstitutional agency adopts a policy contrary to a trend in international law\nor to a treaty or prior statute, the courts must accept the latest act o f that\n\n8\n\nIn concluding that the United States does not have the legal authonty to assert extraterritorial\n\nenforcement jurisdiction in violation o f international law, the 1980 Opinion relies exclusively on a state\xc2\xad\nment in The Schooner Exchange that the \xe2\x80\x9cpow er o f a nation within its own territories, must be traced up\nto the consent o f the nation itself. They can flo w from no other legitimate source.\xe2\x80\x9d 11 U S. (7 Cranch) at\n136. However, this statement was made in connection with explaining that any restriction on an\nAmerican court\xe2\x80\x99s jurisdiction over the foreign warship could not flow from an external source, but had\nto be based on domestic law. Id The statement thus provides no support fo r the 1980 Opinion\xe2\x80\x99s analysis.\nMoreover, the Opinion ignores the case\xe2\x80\x99s explicit recognition o f the principle that a sovereign has the\npow er to act inconsistently with customary international law.\n\n169\n\n\x0cagency\xe2\x80\x9d), cert, denied, 362 U.S. 904 (1960); The Over the Top, 5 F.2d 838,\n842 (D. Conn. 1925) (stating that \xe2\x80\x9c[international practice is law only in so\nfar as we adopt it, and like all common or statute law it bends to the will\no f the Congress\xe2\x80\x9d). Leading commentators also agree that the United\nStates, acting through its political branches, has the prerogative to take\naction in disregard o f international law.9\nIndeed, the sovereign\xe2\x80\x99s authority to override customary international\nlaw necessarily follows from the nature o f international law itself.\nCustomary international law is not static: it evolves through a dynamic\nprocess o f state custom and practice. States ultimately adhere to a norm\no f practice because they determine that upholding the norm best serves\ntheir long-run interests and because violation o f the norm may subject\nthe nation to public obloquy or expose it to retaliatory violations. See\nBrow n v. United States, 12 U.S. (8 Cranch) 110 (1814). States necessari\xc2\xad\nly must have the authority to contravene international norms, however,\nfor it is the process of changing state practice that allows customary\ninternational law to evolve.10 As Chief Justice Marshall stated in Brown,\n\xe2\x80\x9c [t]he rule is, in its nature, flexible. It is subject to infinite modification. It\nis not an immutable rule o f law, but depends on political considerations\nwhich may continually vary.\xe2\x80\x9d 12 U.S. (8 Cranch) at 128. If the United\nStates is to participate in the evolution o f international law, the Executive\nmust have the pow er to act inconsistently with international law where\nnecessary. \xe2\x80\x9cIt is principally the President, \xe2\x80\x98sole organ\xe2\x80\x99 o f the United States\nin its international relations, who is responsible for the behavior o f the\nUnited States in regard to international law, and who participates on her\n\n9A s P rofessor Henkin has noted, \xe2\x80\x9cthe Constitution does not forbid the President (o r the Congress) to\nviolate international law, and the courts w ill give effect to acts within the constitutional powers o f the\npolitical branches without regard to international la w \xe2\x80\x9d Louis Henkin, Foreign Affairs and the\n\nConstitution 221-22 (1972). The Restatement also expressly maintains that Congress by subsequent\nenactment may supersede a rule o f international law or international agreement. See Restatement\n(T h ird ) o f the Foreign Relations Law o f the United States \xc2\xa7 11 5 (l)(b ) (1987) ( \xe2\x80\x9cRestatement (Third)")- The\nreporters\xe2\x80\x99 notes also agree that \xe2\x80\x9c[t]here is authority for the view that the President has the power, when\nacting within his constitutional authonty, to disregard a rule o f international law or an agreement o f the\nUnited States/ Id \xc2\xa7 1 5 (l)(b ) note 3 W hile the Restatement (Third) does not explicitly address whether\nthe President or his delegate may violate international law when acting pursuant to statutory rather than\nconstitutional authonty, this proposition appears to be a direct corollary to the Restatement (Th ird )\xe2\x80\x99s\nconclusion with respect to legislative authority. I f Congress has the authonty to enact a statute contrary\nto international law, it may also enact a statute that delegates to the Executive authonty that can be exer\xc2\xad\ncised contrary to international law Thus, w e believe that the Restatement (Third) substantially agrees\nw ith our vie w that the political branches, under the authonty o f either constitutional or statutory domes\xc2\xad\ntic law, legally may act in a manner that is inconsistent with international law\n10A recent exam ple involves international territory and econom ic sovereignty over the seas In 1945,\nthe contiguous sea outside the tem tonal sea (from three to twelve m iles) was generally considered to\nbe international w aters See Brownlie, supra, at 218. Shortly thereafter, however, a number o f states\nbegan asserting 200-rrule fishery conservation zones Id. These claims were, at times, supported by mili\xc2\xad\ntary force. Sayre A. Swarztrauber, The Three-Mile L im it o f Territorial Seas 152-77 (1972). The interna\xc2\xad\ntional law norm that w aters beyond the tem ton al sea w ere not subject to the junsdiction o f the coastal\nstates collapsed. Restatement (Third), supra, \xc2\xa7 5 1 4 (l)(a ). By 1979, there was general acceptance o f an\nexclu sive econom ic zone o f 200 miles Brownlie, supra, at 219-20.\n\n170\n\n\x0cbehalf in the indefinable process by which customary international law is\nmade, unmade, remade.\xe2\x80\x9d Louis Henkin, Foreign Affairs and the\nConstitution 188 (1972). Thus, the power in the Executive to override\ninternational law is a necessary attribute o f sovereignty and an integral\npart of the President\xe2\x80\x99s foreign affairs power. Indeed, the absence o f such\nauthority in the Executive would profoundly and uniquely disable the\nUnited States \xe2\x80\x94 rendering the nation a passive bystander, bound to fol\xc2\xad\nlow practices dictated by other nations, yet powerless to play a role in\nshaping those practices.11\nThus, we think it clear that, contrary to the 1980 Opinion\xe2\x80\x99s assertions,\ncustomary international law does not impose absolute legal limits on the\npower of the United States to exercise its law enforcement jurisdiction in\nforeign countries. Both the Congress and the President, acting within\ntheir respective spheres, retain the authority to override any such limita\xc2\xad\ntions imposed by customary international law.\n2. Effect on the FBI\xe2\x80\x99s Statutory Authority\nWe also believe that the 1980 Opinion erred in concluding that the\nstatutes granting the FBI its investigative and arrest powers must be con\xc2\xad\nstrued as limited by customary international law. The 1980 Opinion notes\nthat a conventional rule o f statutory construction states that where a\nstatute prescribes a duty, by implication it authorizes all reasonable and\nnecessary means to effectuate that duty. 4B Op. O.L.C. at 552. The\nOpinion concludes, based principally on the disapproval expressed in\nseveral academic journals, that an extraterritorial apprehension is\n\xe2\x80\x9cunreasonable,\xe2\x80\x9d and hence, unauthorized, when it violates international\nlaw. Id. at 552. In substance, though not explicitly, the 1980 Opinion relies\non the canon o f statutory interpretation \xe2\x80\x94 enunciated in Murray v.\nSchooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) \xe2\x80\x94 that a\n\n11\n\nBecause customary international law consists o f evolving state customs and practice, it is an inher\xc2\xad\n\nently uncertain area o f law, from which clear rules rarely emerge Some extraterritorial law enforcement\nactions in which the FBI might engage without the foreign country\xe2\x80\x99s consent would not necessarily con\xc2\xad\ntravene international law. For instance, because sovereignty over territory derives not from the posses\xc2\xad\nsion o f legal title, but from the reality o f effective control, see Brownlie, supra, at 117-18, logic would sug\xc2\xad\ngest there would be no violation o f international law in exercising law enforcement activity in foreign\nterritory over which no state exercises effective control In addition, if the United States w ere the target\no f attacks that violated international law, it would be justified in making a proportional unilateral\nresponse, even though its actions might otherwise be contrary to international law See generally\nRestatement (Third), supra, \xc2\xa7 905(1); U.N. Charter art 51 (recognizing a nation\xe2\x80\x99s inherent right o f selfdefense). Other circumstances may exist, as well, under which extraterritorial law enforcem ent is appro\xc2\xad\npriate under international law. See generally D Cameron Findley, Abducting Tenvrists f o r Trial in the\n\nUnited States. Issues o f International and Domestic Law, 23 Tex Int\xe2\x80\x99l L J. 1,25 (1988) (discussing other\nsuch circumstances) In addition, some unilateral actions by the United States, though inconsistent with\npn or international practice, may constitute justifiable efforts by the United States to shape the content\no f international norms. Such unilateral actions may be legitimate means by which the United States sig\xc2\xad\nnals its rejection o f a putative norm or seeks to gain acceptance fo r an alternative norm.\n\n171\n\n\x0cstatute should be construed when possible so as not to conflict with\ninternational law.12 We believe this line o f analysis is wholly inapposite.\nFirst, this canon does not apply to the kind o f statutes at issue here.\nSections 533(1) and 3052 are broad authorizing statutes \xe2\x80\x9ccarrying into\nExecution\xe2\x80\x9d core Executive powers. See U.S. Const, art I, \xc2\xa7 8, cl. 18. In cre\xc2\xad\nating the FBI and conferring on it broad investigative and arrest authori\xc2\xad\nty, Congress has created an agency through which the President carries\nout his constitutionally assigned law enforcement functions. Such gener\xc2\xad\nal enabling statutes, in the absence o f an explicit restriction, must be read\nas conferring on the agency a scope o f authority commensurate with that\no f the Executive. Because, as part o f his law enforcement powers, the\nPresident has the inherent authority to override customary international\nlaw, it must be presumed that Congress intended to grant the President\xe2\x80\x99s\ninstrumentality the authority to act in contravention o f international law\nwhen directed to do so. Unless Congress places explicit limitations on\nthe FBI\xe2\x80\x99s investigative and arrest powers, it must be presumed that\nCongress did not intend to derogate from Presidential authority by limit\xc2\xad\ning those statutory powers.13\nThis presumption is all the more compelling where, as here, the\nPresident\xe2\x80\x99s foreign relations powers are implicated. Courts have long rec\xc2\xad\nognized that delegations o f discretion involving the President\xe2\x80\x99s constitu\xc2\xad\ntional powers must be construed broadly, especially in matters involving\nforeign affairs. See e.g., Dames & Moore v. Regan, 453 U.S. 654, 677\n(1981) (Hostage Act and International Emergency Economic Powers Act,\n\n12Actually, M urray v. Schooner Charming Betsy, 6 U S. (2 Cranch) 64 (1804), and Launtzen v Larsen,\n345 U S. 571, 578 (1953), are examples o f cases applying the general rule o f construction that prescrip\xc2\xad\ntive statutes not expressly purporting to apply extraterritorially ordinarily w ill not be presumed to have\nsuch an effe ct The presumption anses in those cases where it is apparent that extraterritorial applica\xc2\xad\ntion o f a legal prohibition would gratuitously interfere with the sovereignty o f foreign countries, while\nnot advancing the United States\xe2\x80\x99 interest in preserving its own sovereignty In Schooner Charming Betsy,\nfo r example, the Court held that a non-intercourse act prohibiting trade between the United States and\nFrance could not be applied to justify seizure o f a Danish ship 6 U.S (2 Cranch) at 118. To d o so would\nhave needlessly infringed on Danish sovereignty without protecting the interest o f the United States in\nprohibiting its own citizens from trading with an enemy. However, such cases certainly cannot be read\nas suggesting that Congress does not have the power to enact statutes with extraterritorial effect. Nor do\nsuch cases apply w here Congress actually intends a statute to have extraterritorial reach See Blackmer\n\nv. United States, 284 U S. at 437, United States v. King, 552 F.2d at 850-51.\n13The court in United States v Postal, 589 F.2d 862 (5th Cir.), cert denied, 444 U.S. 832 (1979), recog\xc2\xad\nnized the need to apply enforcement statutes broadly to effectuate Congress\xe2\x80\x99 intent to reach certain drug\ntrafficking. It held that the statute granting the power to search and seize vessels m all cases in \xe2\x80\x9c\xe2\x80\x98which\nthe United States has jurisdiction,\xe2\x80\x99" for purposes o f enforcing United States law, granted authonty to the\nCoast Guard to seize vessels in violation o f Article 22 o f the Convention on the High Seas Id. at 884 (quot\xc2\xad\ning 14 U S C. \xc2\xa7 89(a) (1976)). (The United States was a party to that Convention, but the Court held it was\nnon-self-executing) The Court based this conclusion on an earlier decision in which it had construed the\nstatute as granting \xe2\x80\x9cjunsdiction\xe2\x80\x9d in the typ e o f case at issue \xe2\x80\x94 a conspiracy to violate federal narcotics\nstatutes. Id. at 884. Indeed, since the cou rt viewed the statute as \xe2\x80\x98\xe2\x80\x9c intended to give the Coast Guard the\nbroadest authonty available under law,\xe2\x80\x99\xe2\x80\x9d it held that a Coast Guard regulation requiring boarding o f ves\xc2\xad\nsels only in conform ity with a treaty could not be applied to limit the Coast Guard\xe2\x80\x99s authonty under the\nstatute. Id at 885 (quoting United States v. Warren, 578 F2d 1058, 1068 (5th Cir. 1978) (en banc))\n\n172\n\n\x0calthough not providing specific authorization for the President\xe2\x80\x99s actions,\nare still relevant because they \xe2\x80\x9cindicate] congressional acceptance o f a\nbroad scope for executive action\xe2\x80\x9d in settling claims against Iran);\nSordino v. Federal Reserve Bank of New York, 361 F.2d 106, 111 (2d Cir.),\ncert, denied, 385 U.S. 898 (1961) (noting that especially with respect to\nforeign affairs, statutory delegations of power to the President must be\nread more broadly than other delegations). See Chicago & Southern A ir\nLines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 110-14 (1948)\n(denying availability o f judicial review over presidential decisions based\non statutory authority involving broad foreign policy matters); see also\nUnited States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936)\n(upholding broad statutory delegation that implicated President\xe2\x80\x99s foreign\naffairs responsibilities).14\nIn contrast, the 1980 Opinion reverses the presumptions o f our constitu\xc2\xad\ntional system. The Opinion imputes to Congress an intent to make the\nscope o f domestic legal authority for law enforcement operations depend\non the vague and fluctuating standards of international custom. In effect,\nthis would delegate to foreign nations the power to define, on a continuing\nbasis, the content o f United States law, according to standards that are out\xc2\xad\nside the direct control o f the political branches. Such an intent should not\nbe presumed. To the contrary, Congress must be presumed to entrust such\nvital law enforcement decisions directly to the democratically accountable\nPresident and his subordinates. See Chevron, U.S.A. v. Natural Resources\nDefense Council, 467 U.S. 837 (1984) (holding that it is for the executive\nbranch, not the judiciary, to make policy choices within the ambit o f dele\xc2\xad\ngated statutory authority when Congress has not spoken).\nIn enacting sections 533(1) and 3052, Congress was legislating against\nthe background o f the well-recognized principle that international law is\npart o f the law o f the United States only insofar as it has not been over\xc2\xad\nridden by actions o f the political branches. In The Paquete Habana,\nJustice Gray stated:\nInternational law is part o f our law, and must be ascer\xc2\xad\ntained and administered by the courts o f justice o f appro\xc2\xad\npriate jurisdiction, as often as questions of right depending\nupon it are duly presented for their determination. For this\npurpose, where there is no treaty, and no controlling exec\xc2\xad\n14 Two recent cases refusing to apply statutory enforcement jurisdiction abroad are inapposite. See\nCommodity Futures Tt\'ading Comm\xe2\x80\x99n v. Nalias, 738 F.2d 487, 493 (D.C. Cir. 1984) (C F T C could not\nenforce investigative subpoena on foreign citizen in a foreign nation), FTC v. Compagnie de SamlGobam-Pont-a-Mousson, 636 F.2d 1300, 1324-27 (D C Cir 1980) (F TC could not enforce document sub\xc2\xad\npoena on a foreign citizen residing abroad). In each case, the agency whose authority was at issue was\nan independent agency that exercised statutory authority thought to be shielded from direct presidential\ncontrol. Thus, the statutory authorities at issue in those cases, unlike those exercised by the FBI, may\nnot have been understood to effectuate directly the Presidents constitutional authority, and thus need\nnot be interpreted as commensurate with that authority.\n\n173\n\n\x0cutive or legislative act or judicial decision, resort must be\n\nhad to the customs and usages o f civilized nations ....\n175 U.S. at 700 (emphasis added). Thus, the Court held that United States\nforces unlawfully had seized Cuban fishing vessels as prizes o f war where\nsuch vessels were \xe2\x80\x9cexempt by the general consent o f civilized nations\nfrom capture, and ... no act o f Congress or order o f the President ha[d]\nexpressly authorized [such an action] to be taken.\xe2\x80\x9d Id. at 711.\nIn 1986, the Eleventh Circuit applied The Paquete Habana to uphold\nexecutive branch action taken pursuant to a broad statutory delegation in\ncircumstances analogous to those here. In Garcia-Mir v. Meese, 788 F.2d\n1446 (11th Cir.), cert, denied, 479 U.S. 889 (1986), the issue was whether\nthe United States was authorized to detain indefinitely Cuban aliens who\nhad arrived as part o f the Mariel boatlift, notwithstanding that such a\ndetention violated customary international law.\nThe Attorney General ordered the detention pursuant to 8 U.S.C.\n\xc2\xa7 1227(a), which, like 28 U.S.C. \xc2\xa7 533(1) and 18 U.S.C. \xc2\xa7 3052, contained\na broad grant o f authority to the Attorney General, but did not specifical\xc2\xad\nly authorize indefinite detention.15 With respect to one group o f the\nMariel detainees, the court concluded that there was insufficient evi\xc2\xad\ndence o f an express congressional intention to override international law.\nId. at 1453-54.16 The court found, however, that the Attorney General\xe2\x80\x99s\ndecision to incarcerate them indefinitely constituted a \xe2\x80\x9ccontrolling exec\xc2\xad\nutive act\xe2\x80\x9d o f the kind required by The Paquete Habana, and the court thus\nfound that the detention was lawful. Id. at 1454. Garcia-Mir therefore\nmay be understood as holding that the Executive acting within broad\nstatutory discretion may depart from customary international law, even\nin the absence o f an affirmative decision by Gongress that international\nlaw may be violated.17Accordingly, we believe that Garcia-Mir provides\n\n15 The relevant portion o f 8 U S.C \xc2\xa7 1227(a) provides that u[a]ny alien\narriving in the United States\nw h o is excluded under this chapter, shall be immediately d ep orted ,. . unless the Attorney General, in an\nindividual case, in his discretion, concludes that immediate deportation is not practicable or proper.\xe2\x80\x9d\n1CAs to another group o f Manel Cubans \xe2\x80\x94 those who had been incarcerated continuously since their\narrival in the United States \xe2\x80\x94 the court concluded that Pub L No. 96-533, tit VII, \xc2\xa7 716, 94 Stat. 3131,\n3162 (1980), provided sufficient evidence o f congressional intention to override international law. See 788\nF.2d at 1453-54 n 9.\n17 There are tw o different ways to read the holding in Gaixda-Mir. One is that the Executive has broad\ndiscretionary authority, pursuant to general power delegated by statute, to determine whether to act incon\xc2\xad\nsistently with international law Certain language in the district court\xe2\x80\x99s decision suggests that it viewed the\n\xe2\x80\x9ccontrolling executive act\xe2\x80\x9d as having been taken pursuant to statutory authorization. See Femandez-Roque\nv. Smith, 622 F. Supp 887,903 (N D. Ga. 1985) ( \xe2\x80\x9c[T]his Court is reluctant to hold that the Attorney General\xe2\x80\x99s\ninvolvement in plaintiffs\' detention cannot be considered a \xe2\x80\x98controlling executive act,\xe2\x80\x99 especially since\nCongress has delegated to the Attorney General broad discretion over the detention o f unadmitted aliens.\xe2\x80\x9d)\nIn affirming, the Eleventh Circuit may have intended to adopt the statutory rationale\nAlternatively, G arcia -M ir may be understood as holding that the President has inherent constitutional\nauthonty, independent o f the statutory grant o f power, to determine whether to act inconsistently with\ninternational law. The Eleventh Circuit quoted a draft o f the Restatement referring to the President\nContinued\n\n174\n\n\x0cadditional support for the proposition that broad statutory grants o f\nExecutive authority must be interpreted in light o f the political branches\xe2\x80\x99\ninherent power to override international norms.18\nIn sum, then, we conclude that the FBI has authority under sections 533(1)\nand 3052 to cany out overseas investigations and arrests that contravene\ncustomary international law. Those statutes do not explicitly require the FBI\nto conform its activities to customary international law, and there is no basis\nfor gratuitously assuming that Congress intended to impose such limitations\non the FBI. On the contrary, in view of the President\xe2\x80\x99s authority to override\ncustomary international law, it must be presumed that Congress granted the\nFBI commensurate statutory authority.19\n\n17(...continued)\n\xe2\x80\x9cacting within his constitutional authonty\xe2\x80\x9d in support o f its holding, see 788 F.2d at 1454-55, and it may\ntherefore have been relying on the President\xe2\x80\x99s inherent constitutional authority This is the interpretation\no f G aivia-M ir adopted by the Restatement (Third), supra, \xc2\xa7 115, note 3, and particularly by the C hief\nReporter. See Louis Henkin, The Constitution and United States Sovereignty A Century o f Chinese\n\nExclusion and Its Progeny, 100 Harv. L. Rev. 853, 883-86 (1987) ( \xe2\x80\x9c Henkin\xe2\x80\x9d). We think that the decision\nin Garcia-M ir is correct under either interpretation\nProfessor Henkin disagrees with the result in Garcia-M ir because he does not believe that the\nPresident has an inherent constitutional authority to exclude aliens. See id at 884 n 131. We disagree on\nthis specific point with Professor Henkin. See United States ex rel Knaujfv. Shaughnessy, 338 U S. 537,\n543 (1950) ( \xe2\x80\x9c[T]h e pow er o f exclusion o f aliens is also inherent in the executive department o f the sov\xc2\xad\nereign ..\xe2\x80\x9d); see also Nishimura Ekiu v. United Stales, 142 U S. 651,659 (1892). In any event, this debate\npertains only to the particular issue in Garcia-Mir, it does not go to the basic question o f whether the\nPresident has inherent constitutional authonty to violate customary or other international law \xe2\x80\x94 a\nproposition with which both the Restatement (Third) and Professor Henkin agree. Restatement (Third),\nsupra, \xc2\xa7 115, note 3; Henkin, supra, at 882 ( \xe2\x80\x9cThus, a domestic court espousing this view would not, fo r\nexample, eryoin the President from directing United States officers to overfly another country\xe2\x80\x99s tem tory without that country\xe2\x80\x99s con sen t... or to kidnap a wanted cnminal from a foreign country . (but] would\nhave to accept such directives as an exercise by the President\no f the prerogative o f the United States\nto take such measures regardless o f its international obligations.\xe2\x80\x9d).\n18Recent legislation reflects Congress\xe2\x80\x99 intent that the United States be able to exercise its law enforce\xc2\xad\nment powers abroad when necessary to counter international terrorism. For instance, in introducing leg\xc2\xad\nislation (now codified at 18 U S C \xc2\xa7 2331) to criminalize murder and other acts against U S. nationals\ncommitted abroad, Senator Specter noted that\nIn many cases, the terronst murderer will be extradited or seized with the cooperation o f\nthe government in whose junsdiction he or she is found Yet, if the terrorist is hiding in a\ncountry like Lebanon, w here the government, such as it is, is powerless to aid in his removal,\nor in Libya, where the Government is unwilling, we must be willing to apprehend these cnminals ourselves and bnng them back fo r tnal\n131 Cong Rec. 18,870 (1985)\n19We do not here discuss limitations on the scope o f the FBI\xe2\x80\x99s authonty for such actions that may be\ndenved from other statutes We know o f no provisions by which Congress generally has prohibited the\nuse o f agents to enforce United States laws contrary to pnnciples o f customary international law. We\nbelieve, however, that such provisions would have to be quite explicit before they would be so construed,\nbecause the extratem tonal enforcement o f United States laws relates to tw o areas o f the President\xe2\x80\x99s con\xc2\xad\nstitutional authority \xe2\x80\x94 the conduct o f foreign relations and his duty to execute the laws See Youngstown\nSheet & Tube Co v Sawyer, 343 U S. 579, 645 (1952) (Jackson, J., concum ng) ( \xe2\x80\x9cI should indulge the\nwidest latitude o f interpretation to sustain [the President\xe2\x80\x99s] exclusive function to command the instru\xc2\xad\nments o f national force, at least when turned against the outside world for the secunty o f our society.\xe2\x80\x9d).\nFor example, w e do not believe that the Mansfield Amendment circumscnbes the FBI\xe2\x80\x99s authonty to make\narrests abroad fo r violations o f United States anti-drug laws, because its restrictions relate solely to\nUnited States participation in operations to enforce foreign anti-dmg laws See 22 U S C \xc2\xa7 2291(c).\n\n175\n\n\x0cC. The President\xe2\x80\x99s Constitutional Power to Authorize Actions\nInconsistent with Customary International Law\n\nWe believe that the 1980 Opinion also erred because it failed to con\xc2\xad\nsider the President\xe2\x80\x99s inherent constitutional power to authorize law\nenforcement activities. Pursuant to the constitutional command to \xe2\x80\x9ctake\nCare that the laws be faithfully executed,\xe2\x80\x9d20 the President has the power\nto authorize agents o f the executive branch to engage in law enforcement\nactivities in addition to those provided by statute.\nThe Court so held in In re Neagle, 135 U.S. 1 (1890). There, the life o f\nJustice Field had been threatened, and as a result, the Attorney General\nassigned a Deputy United States Marshal to accompany the Justice. Id. at\n42-52. While performing the duties assigned to him by the Attorney\nGeneral, Neagle shot and killed a man whom he believed was about to\nattack Justice Field. Id. at 52-53. Neagle was arrested and charged with\nmurder by California authorities.\nThe Court assumed that the authorizing statute did not empower the\nU.S. Marshals or their deputies to accompany and guard Supreme Court\nJustices as they traveled through their circuits. Id. at 58. Nevertheless,\nthe Court held that the constitutional command that the President \xe2\x80\x9cshall\ntake Care that the laws be faithfully executed\xe2\x80\x9d gave him the power to\nauthorize agents o f the executive branch to take enforcement actions in\naddition to those provided by statute. Id. at 63-64. The Court concluded\nthat the President\xe2\x80\x99s constitutional duty is not limited to the enforcement\no f acts o f Congress or treaties according to their terms, but that it\nextends also to the \xe2\x80\x9crights, duties and obligations growing out o f the\nConstitution itself, our international relations, and all the protection\nimplied by the nature of the government under the Constitution.\xe2\x80\x9d Id. at\n64-67. The Court thus concluded that the President had the legal author\xc2\xad\nity, acting through the Attorney General, to direct the Deputy Marshal\xe2\x80\x99s\nactions, and that the authority overrode any contrary California law. Id.\nat 67-68.21\n20 U.S. Const, art. n, \xc2\xa7 3.\n21 See also United Stales ex ret Martinez-Angosto v. Mason, 344 F.2d 673, 688 (2d Cir. 1965) (Friendly,\nJ., concurring) (noting that congressional silence did not preclude the inference that the President has\nthe p o w e r to decide w hether to follow provisions o f a non-self-executing treaty)\nDurand v. Hollins, 8 F. Cas. I l l (C C.S D N Y. 1860) (N o . 4,186) is also apposite. In 1854, Lieutenant\nHollins o f the U.S.S. Cyane ordered the bombardment o f Greytown, Nicaragua in retaliation for the fail\xc2\xad\nure o f local authorities to make reparation fo r a mob attack on the United States Consul. Hollins was\nthen sued for the value o f property alleged to have been destroyed in the bombardment Justice Nelson,\non circuit, held Hollins not liable on the grounds that he was acting pursuant to orders o f the President\nand the Secretary o f the Navy He ruled that\nA s the Executive head o f the nation, the President is made the only legitimate organ o f the\ngeneral government, to open and carry on correspondence o r negotiations with foreign\nnations, in matters concerning the interests o f the country or o f its citizens It is to him, also,\nthat citizens abroad must look fo r protection o f person and o f property, and fo r the faithful\nContinued\n\n176\n\n\x0cThe Neagle Court pointed particularly to the President\xe2\x80\x99s power in the\narea o f foreign affairs as an area in which there exists considerable inher\xc2\xad\nent presidential power to authorize action independent o f any statutory\nprovision. See id. at 64. The Court\xe2\x80\x99s decision reflects the fundamental\nprinciple stated by John Jay that \xe2\x80\x9c [a]ll constitutional acts o f power,\nwhether in the executive or in the judicial department, have as much\nlegal validity and obligation as if they proceeded from the legislature.\xe2\x80\x9d\nThe Federalist No. 64, at 394 (John Jay) (Clinton Rossiter ed., 1961).\nThis Office also has previously opined that the President, pursuant to\nhis inherent constitutional authority, can authorize enforcement actions\nindependent o f any statutory grant o f power. See Memorandum for\nWayne B. Colbom, Director, United States Marshals Services, from\nLeon Ulman, Deputy Assistant Attorney General, Office o f Legal\nCounsel, Re: Law Enforcement Authority o f Special Deputies\nAssigned to D O T to Guard Against A ir Privacy (Sept. 30, 1970) (the\n\xe2\x80\x9c 1970 Opinion\xe2\x80\x9d). In that opinion, this Office ruled that the President\xe2\x80\x99s\ninherent constitutional authority permitted Department o f Trans\xc2\xad\nportation personnel to be deputized as Deputy U.S. Marshals and autho\xc2\xad\nrized to carry firearms, to take necessary action to prevent air piracy\nwhile an American carrier is in flight anywhere in the world, and to\nmake arrests for violations o f United States laws regarding air piracy\nand related offenses. Id. at 1. The opinion recognized that there was no\nstatute expressly authorizing this protection and enforcement action.\nId. at 2.22 Relying on In re Neagle and In re Debs, 158 U.S. 564, 581\n(1895), however, it concluded that \xe2\x80\x9csince the United States has jurisdic\xc2\xad\ntion to punish air piracy and related offenses, it likewise has inherent\nauthority to take reasonable and necessary steps to prevent these\noffenses.\xe2\x80\x9d 1970 Opinion at 2-3. In its analysis, the 1970 Opinion noted\nthat \xe2\x80\x9cthe exercise o f their authority ... could give rise to conflicts with\nthe countries involved o f an international nature. But this would not, in\n21 (\n\ncontinued)\nexecution o f the laws existing and intended for their protection. For this purpose, the whole\nexecutive pow er o f the country is placed in his hands, under the constitution, and the laws\npassed in pursuance thereof; and different departments o f government have been organized,\nthrough which this power may be most conveniently executed, whether by negotiation or by\nforce \xe2\x80\x94 a department o f state and a department o f the navy.\nNow, as respects the interposition o f the executive abroad, for the protection o f the lives\nor property o f the citizen, the duty must, o f necessity, rest in the discretion o f the president\nActs o f lawless violence, or o f threatened violence to the citizen or his property, cannot be\nanticipated and provided for, and the protection, to be effectual or o f any avail, may, not\nunfrequently, require the most prompt and decided action. Under our system o f Government,\nthe citizen abroad is as much entitled to protection as the citizen at home The great object\nand duty o f government is the protection o f the lives, liberty, and property o f the people com \xc2\xad\nposing it, whether abroad or at home, and any government failing in the accomplishment o f\nthe object, or the performance o f the duty, is not worth preserving\n\nId at 112\n22The authonzing statute o f the U S. Marshals, 18 U S.C. \xc2\xa7 3053, like 28 U S C \xc2\xa7 33(1) and 18 U S.C\n3052, contains no express extraterritorial arrest or enforcement authonty\n\n177\n\n\x0cour view, affect the legality o f their actions under U.S. domestic law.\xe2\x80\x9d\nId. at 6.23\n\nAccordingly, we believe that even if sections 533(1) and 3052 are con\xc2\xad\nstrued as authorizing enforcement action only within the limits imposed\nby international law, the President retains the constitutional authority to\norder enforcement actions in addition to those permitted by statute. As\ndiscussed supra pp. 168-71, this constitutional authority carries with it\nthe pow er to override customary international law. Thus, Executive\nagents, when appropriately directed pursuant to the President\xe2\x80\x99s constitu\xc2\xad\ntional law enforcement authority, may lawfully carry on investigations\nand make arrests that contravene customary international law.\nD. The Status o f Article 2 (4 ) o f the U.N. Charter and Other\nUnexecuted Treaties or Treaty Provisions\n\nTo this point, we have discussed the Executive\xe2\x80\x99s power to override cus\xc2\xad\ntomary international law. Another issue is whether Article 2(4) o f the\nU.N. Charter would prohibit the Executive as a matter o f domestic law\nfrom authorizing forcible abductions absent acquiescence by the foreign\ngovernment.24 We do not believe that it does.\nThe text o f Article 2(4) does not prohibit extraterritorial law enforce\xc2\xad\nment activities, and we question whether Article 2(4) should be con\xc2\xad\nstrued as generally addressing these activities. Nevertheless, even if\nArticle 2(4) were construed as prohibiting certain forcible abductions, we\nbelieve that the President has the authority to order such actions in con\xc2\xad\ntravention o f the Charter.\nTreaties that are self-executing can provide rules o f decision for a\nUnited States court,25 see Cook v. United States, 288 U.S. 102, 112 (1933),\nbut when a treaty is non-self-executing, it \xe2\x80\x9caddresses itself to the politi\xc2\xad\ncal, not the judicial department; and the legislature must execute the\n[treaty] before it can become a rule for the Court.\xe2\x80\x9d Foster v. Neilson, 27\nU.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.). Accordingly, the decision\nwhether to act consistently with an unexecuted treaty is a political issue\n\n23 We understand that as a matter o f international law the United States may exercise jurisdiction on\nUnited States carriers flying over foreign territories Convention on Offenses and Certain Other Acts\nCom m itted On Board Aircraft, Sept 14, 1963, art. 3, 20 U S.T. 2941, 2944 The 1970 Opinion, however, did\nnot rely on the Convention and, to the contrary, appeared to assume that exercise o f such junsdiction\nwould be view ed as infringing on the sovereignty o f other nations,\n24A rticle 2 (4 ) provides:\nA ll M em bers shall refrain in their international relations from the threat or use o f force\nagainst the tem toria l integnty or political independence o f any state, or in any other manner\ninconsistent with the Purposes o f the United Nations.\nU.N. Charter, art 2, U 4.\n25See Restatem ent (Th ird ), supra, \xc2\xa7 111, introductory note (declaring that \xe2\x80\x9c [ujnder the Supremacy\nClause, self-executed treaties concluded by the United States becom e law o f the United States\xe2\x80\x9d), id, \xc2\xa7\n111, com m ent h (noting that unexecuted treaty does not furnish a rule o f decision in the United States).\n\n178\n\n\x0crather than a legal one,26 and unexecuted treaties, like customary inter\xc2\xad\nnational law, are not legally binding on the political branches. The\nPresident, acting within the scope o f his constitutional or statutory\nauthority, thus retains full authority to determine whether to pursue\naction abridging the provisions o f unexecuted treaties.27\nWe agree with the 1980 Opinion that Article 2(4) is not self-executing.28\n4B Op. O.L.C. at 548. See also Sei F u jii v. State, 242 P.2d 617, 620 (C a l\n1952) (human rights provisions o f U.N. Charter not self-executing);\nPauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C. 1958), affd, 278 F.2d\n252 (D.C. Cir.), cert, denied, 364 U.S. 835 (1960) (finding other sections of\nCharter not self-executing). Article 2(4) relates to one o f the most funda\xc2\xad\nmentally political questions that faces a nation \xe2\x80\x94 when to use force in its\ninternational relations. For these reasons, we conclude that as a matter\no f domestic law, the Executive has the power to authorize actions incon\xc2\xad\nsistent with Article 2(4) o f the U.N. Charter.29\nE. The President\xe2\x80\x99s Ability to Delegate to the Attorney General the\nPower to Authorize Enforcement Actions Inconsistent with\nInternational Law\n\nEven though the Constitution vests the \xe2\x80\x9cexecutive power\xe2\x80\x9d in the\nPresident, see U.S. Const, art. II, \xc2\xa7 1, we do not believe that the President\xe2\x80\x99s\nstatutory or constitutionally based Executive power to override custom\xc2\xad\nary or other international law can be exercised only by him. Rather, we\nbelieve that this Executive power can be exercised by the Attorney\nGeneral as well, and that this conclusion obtains regardless o f whether\n\n26O f course, there may be significant political reasons for not abridging an unexecuted treaty, ju st as\nthe President may decide it is politically unwise to act inconsistently with customary international law.\nSuch political decisions necessarily depend on the facts o f each case, and w e do not address their rami\xc2\xad\nfications here.\n27As discussed above, law enforcement activities outside the United States implicate the President\xe2\x80\x99s\nconstitutional authority to conduct the international relations o f the United States and to execute our\nlaws Pursuant to these constitutional authorities, the President has the pow er to decide whether o r not\nto operate within the terms o f an unexecuted treaty If the President acts inconsistently with the terms\no f a treaty, the treaty is not automatically terminated. It may simply mean that the treaty is rendered inop\xc2\xad\nerative to the extent it is inconsistent with the President\xe2\x80\x99s actions. In any event, the determination o f\nwhether a treaty has been rendered inoperative is largely a decision made by the Executive as part o f the\nconduct o f the foreign relations o f the United States. C f Charlton v Kelly, 229 U S 447 (1913) (holding\nthat the President must decide whether the actions o f a foreign government have voided a treaty)\n28The 1980 Opinion speaks somewhat loosely o f the U N Charter not being \xe2\x80\x9ca self-executing treaty.\xe2\x80\x9d\n4B Op. O L C at 548. More properly, the question should be whether individual provisions o f the treaty\nare self-executing See, e g , United States v Postal, 589 F.2d at 884 n 35.\n29We do not address the effect on the FBI\xe2\x80\x99s authority o f treaties that have become part o f United States\nlaw, either because they are self-executing or because they have been implemented by legislation. As\nnoted above, such treaties do have domestic legal effect, although they can be denounced by the\nExecutive. C f The Chinese Exclusion Case, 130 U S. 581 (1889). See also Louis Henkin, Foreign Affairs\n\nand the Constitution, supra, at 171 We are unaware, however, o f any treaties o f general application that\nwould limit the law enforcement authority o f the United States. Applicable treaties should, o f course, be\nexamined in the context o f any particular operation.\n\n179\n\n\x0cthe authority is viewed as derived from statute or from the President\xe2\x80\x99s\ninherent constitutional authority.\nSection 533(1) designates the Attorney General as the responsible\nexecutive branch official. Thus, all enforcement action authorized pur\xc2\xad\nsuant to this statute, including enforcement action that departs from cus\xc2\xad\ntomary or other international law, may be undertaken by the Attorney\nGeneral.30 The Garcia-Mir decision, confirmed this conclusion by hold\xc2\xad\ning that the Attorney General performed the \xe2\x80\x9ccontrolling executive act\xe2\x80\x9d\nthat sufficed to override customary international law in that case. 788\nF.2d at 1454-55.\nThe Attorney General also may exercise the President\xe2\x80\x99s constitutional\npow er to override customary international law because \xe2\x80\x9c [t]he President\nspeaks and acts through the heads o f the several departments in relation\nto subjects which appertain to their respective duties.\xe2\x80\x9d Wilcox v.\nJackson, 38 U.S. (13 Pet.) 498, 513 (1839). See also Wolsey v. Chapman,\n101 U.S. 755, 769 (1879). Specific direction from the President, or even\nexplicit invocation o f his authority, cannot reasonably be expected and is\nnot generally required. 7 Op. A tt\xe2\x80\x99y Gen. 453, 480-82 (1855).31\nThus, we believe that the Attorney General has the power to authorize\ndepartures from customary o r other international law in the course o f\nlaw enforcement activities and that the President need not personally\napprove such actions. We would not recommend, however, that the\nAttorney General delegate the authority to more subordinate officials.\nEven if he is viewed as exercising statutory authority pursuant to section\n533(1) or section 3052, we think that as a prudential matter the Attorney\nGeneral should, in this case, exercise it personally. Decisions such as\nG a rcia-M ir rely on the theory that the Executive has the constitutional\nauthority to make political decisions affecting our international relations.\nTo the extent that such decisions are made by officials below cabinet\nrank, however, the factual basis for this theory may be weaker.\nSpecifically, we recommend that any overseas law enforcement activi\xc2\xad\nty that presents a significant possibility o f departing from customary or\nother international law be approved directly by the President or the\nAttorney General. As an administrative matter, the Attorney General may\n30The sam e is true with respect to section 3052.\n31In re Neagle, provides an example o f a case in which the Court upheld the exercise by the Attorney\nGeneral o f the President\xe2\x80\x99s inherent constitutional authority 135 U.S at 67-68. More recent examples are\nthe cases upholding the President\xe2\x80\x99s constitutional authonty to order warrantless wiretaps relatmg to for\xc2\xad\neign intelligence activities. United States v. Butenko, 494 F.2d 593 (3d Cir.) (en banc), cert denied, 419\nU.S. 881 (1974), United States v. Brown, 484 F2d 418 (5th Cir. 1973), cert denied, 415 U.S. 960 (1974);\n\nUnited States v. Truong, 629 F.2d 908 (4th Cir. 1980), cert denied, 454 U S 1144 (1982); United States v\nBuck, 548 F.2d 871 (9th Cir.), cert denied, 434 U.S. 890 (1977). In all o f these cases, the warrantless w ire\xc2\xad\ntaps w ere ordered by the Attorney General, and the courts accepted his authority to act on behalf o f the\nPresident. See also United States v. Ehrlichman, 546 F2d 910, 925-26 (D C Cir. 1976), cert denied, 429\nU S . 1120 (1977) (holding that, if a national security exception for warrantless foreign intelligence\nsearches exists, such searches must be authorized by the President or by \xe2\x80\x9chis alter ego for these matters,\nthe A ttorney General\xe2\x80\x9d).\n\n180\n\n\x0cwish to promulgate guidelines specifying what actions could be taken by\nthe FBI overseas, when consent should be obtained from foreign govern\xc2\xad\nments, and when such consent need not be obtained. Such guidelines\nalso could provide general authorization for certain types of non-intrusive\nlaw enforcement activities (such as interviews with informants) in for\xc2\xad\neign countries that nonetheless might depart from customary interna\xc2\xad\ntional law if not authorized by the foreign government. Nevertheless, it\nwould be prudent for such guidelines to require individual approval by\nthe Attorney General for any operation, such as an apprehension and\nabduction, that would involve the use o f force in the territory o f another\ncountry without that country\xe2\x80\x99s consent.\nF. International and Foreign Law and the Fourth Amendment\n\nThe 1980 Opinion concluded that an arrest in violation o f customary\ninternational law did not violate the Fourth Amendment.32 4B Op. O.L.C.\nat 554 n.34. We agree. The Opinion did not address whether the violation\no f foreign statutes or other law would create a Fourth Amendment viola\xc2\xad\ntion.33 We conclude that it would not.\nThe central question is whether an arrest that violates international law\nor foreign statutory law is \xe2\x80\x9cunreasonable\xe2\x80\x9d within the meaning of the\nFourth Amendment\xe2\x80\x99s proscription o f unreasonable searches and\nseizures. The Fourth Amendment is an autonomous rule o f federal law\nthat represents a judgment by the United States as to the appropriate bal\xc2\xad\nance between individual rights and the authority o f the government to\nenforce the law. The Court recently held that state standards for reason\xc2\xad\nable searches and seizures are irrelevant to determining whether the\n32The Bill o f Rights applies to actions o f American officials directed at American nationals overseas\n\nReid v Covert, 354 U S 1, 5-6 (1957). There remains some dispute as to the extent to which the Bill o f\nRights, particularly the Fourth Amendment, applies to actions o f American officials directed at non\xc2\xad\nresident aliens overseas Compare Steven A. Saltzburg, The Reach o f the B ill o f Rights Beyond the Terra\nF iim a o f the United States, 20 Va J. Int\xe2\x80\x99 l L. 741 (1980) ( \xe2\x80\x9cSaltzburg") with Paul B. Stephan III,\n\nConstitutional L im its on International Rendition o f Crim inal Suspects, 20 Va J Int\xe2\x80\x99 l L. 777 (1980)\n( \xe2\x80\x9cStephan\xe2\x80\x9d) and Paul B Stephan III, Constitutional Lim its on the Struggle Against International\nTerrorism: Revisiting the Rights o f Overseas Aliens, 19 Conn L. Rev 831 (1987) The Supreme Court\nrecently granted certiorari in a case holding the Fourth Amendment applicable to warrantless searches\nby DEA officials o f foreign nationals in their ow n country. United States v. Verdugo-Urquidez, 856 F2d\n1214 (9th Cir 1988), [rev\xe2\x80\x99d, 494 U S. 259 (1990)]. We are addressing here, however, only the general ques\xc2\xad\ntion o f whether a violation o f foreign or international law results in a violation o f the Fourth Amendment,\nregardless o f whether the individual arrested is a citizen or alien\n33Presumably this omission was based on the Opinion\xe2\x80\x99s conclusion that the FBI had \xe2\x80\x9cthe authonty to\nviolate the local law o f another country as long as that country does not object." 4B Op O.L.C at 552\nn.29 This conclusion was principally based on the notion that it is for the sovereign, not an individual,\nto determine whether objection should be made to an infnngement on sovereignty Id. While we think\nthis analysis correctly resolves any question o f violation o f international law, it does not necessarily\nanswer the Fourth Amendment question, fo r it is at least theoretically possible that the Fourth\nAmendment itself contains a requirement that arrests comply with applicable foreign laws I f such a nght\nwere contained m the Fourth Amendment, it is difficult to see how a foreign government could extin\xc2\xad\nguish the individual\xe2\x80\x99s nght by failing to object. We address this issue in the text infra\n\n181\n\n\x0cFourth Amendment has been violated. California v. Greenwood, 486 U.S.\n35 (1988). The Court stated:\nWe reject respondent\xe2\x80\x99s] ... alternative argument for affir\xc2\xad\nmance: that his expectation of privacy ... should be deemed\nreasonable as a matter o f federal constitutional law because\nthe warrantless search and seizure ... was impermissible as\na matter o f California law .... We have never intimated ... that\nwhether or not a search is reasonable within the meaning of\nthe Fourth Amendment depends on the law o f the particular\nState in which the search occurs.... Respondent\xe2\x80\x99s argument\nis no less than a suggestion that concepts o f privacy under\nthe laws o f each State are to determine the reach o f the\nFourth Amendment. We do not accept this submission.\nId. at 43-44. See also Oliver v. United States, 466 U.S. 170, 183-84 (1984)\n\n(police officers who trespassed upon posted and fenced land did not vio\xc2\xad\nlate the Fourth Amendment, even though their action was subject to\ncriminal sanctions); Olmstead v. United States, 277 U.S. 438, 466-69\n(1928) (illegality o f a wiretap under state law irrelevant in considering\nwhether evidence was inadmissible under the Fourth Amendment);\nHester v. United States, 265 U.S. 57, 59 (1924) (trespass in \xe2\x80\x9copen fields\xe2\x80\x9d\ndoes not violate the Fourth Amendment). By analogy, the standards\nimposed by the Fourth Amendment, insofar as it applies abroad, see Reid\nv. Covert, 354 U.S. 1, 5-6 (1957), must be determined by United States law.\nIt would be contrary to the Fourth Amendment\xe2\x80\x99s purpose to incorpo\xc2\xad\nrate into it rules o f international law or analogous foreign statutes autho\xc2\xad\nrizing only local law enforcement officers to investigate and arrest. Such\nlaws would have as their purpose the protection o f another country\xe2\x80\x99s sov\xc2\xad\nereignty. In contrast, the Fourth Amendment is concerned with the pro\xc2\xad\ntection o f individual rights. As the Fifth Circuit has stated:\nWhether the search and seizure were Fourth-Amendmentunreasonable must be established by showing that the\ninterests to be served by the Fourth Amendment were vio\xc2\xad\nlated, and not merely by establishing the violation o f gener\xc2\xad\nal principles o f international law.\nUnited States v. Cadena, 585 F.2d 1252, 1264 (5th Cir. 1978).34\n34 In United States v. Peterson, 812 F.2d 486 (9th Cir. 1987), the court reviewed whether evidence\nderived from wiretaps illegal under Philippine law was subject to the exclusionary rule Without analy\xc2\xad\nsis, the court stated that the \xe2\x80\x9clocal law o f the Philippines governs whether the search was reasonable \xe2\x80\x9d\n\nId. at 491 We do not accept this automatic incorporation o f local law into the Fourth Amendment,\nbecause it is inconsistent with California v. Greenwood, 486 U.S. 35 (1988). Moreover, the statement in\nPeterson was o f no consequence to the decision because the court proceeded to admit the evidence\nunder the good faith exception to the exclusionary rule. 812 F2d at 491-92.\n\n182\n\n\x0cWe believe that the requirements o f the Fourth Amendment are met\nwhen officers with authority under United States law arrest with probable\ncause.35See United Slates v. Reed, 639 F.2d 896, 902 & n.2 (2d Cir. 1981).\nSection 3052 of title 18 authorizes agents of the FBI to arrest without war\xc2\xad\nrant if probable cause exists, which is all the Constitution requires, at least\nfor an arrest in a public place. United States v. Watson, 423 U.S. 411, 41417 (1976); Henry v. United States, 361 U.S. 98, 100 (1959).36\nAccordingly, we conclude that an arrest in violation o f foreign law does\nnot violate the Fourth Amendment.37 In addition, based on the analysis in\nthe 1980 Opinion, we reaffirm that an arrest departing from international\nlaw does not violate the Fourth Amendment.\n\nIV. Conclusion\nThis Office concludes that at the direction o f the President or the\nAttorney General the FBI may use its statutory authority under 28 U.S.C.\n\xc2\xa7 533(1) and 18 U.S.C. \xc2\xa7 3052 to investigate and arrest individuals for vio\xc2\xad\nlations o f applicable United States law, even if those actions depart from\ncustomary international law or unexecuted treaties. Moreover, we con\xc2\xad\nclude that the President, acting through the Attorney General, has inher\xc2\xad\nent constitutional authority to deploy the FBI to investigate and arrest\nindividuals for violations o f United States law, even if those actions con\xc2\xad\ntravene international law. Finally, we conclude that an arrest that is\n\n35\n\nThere is som e doubt whether the Fourth Amendment standard includes a requirement o f domestic\n\nlaw authority to arrest. The 1980 Opinion concluded that it does 4B Op O L C at 553-54. That Opinion\nrelied principally on United States v. D i Re, 332 U S 581, 589-92 (1948), a case involving exclusion o f ev i\xc2\xad\ndence obtained incident to an unauthorized arrest by federal officials. But it is not clear that Di Re was\na Fourth Amendment decision, and it is also unclear that the-Constitution requires statutory or other\nauthonty to arrest. See 1 Wayne R. LaFave, Search- and Seizure \xc2\xa7 1 5(b) at 107 (2d ed. 1987) (concluding\nthat D i Re is not a Fourth Amendment case but \xe2\x80\x9csimply an instance o f the court utilizing its supervisory\npow er to exclude from a federal prosecution evidence obtained pursuant to an illegal but constitutional\nfederal arrest\xe2\x80\x9d). C f George E Dix, Fourth Amendment Federalism: The Potential Requirement o f State\nLaw Authorization fo r Law Enforcement Activity, 14 Am J. Crim L. 1, 10 (1987) ( \xe2\x80\x9cThere is consider\xc2\xad\nable d o u b t.\n\nas to whether the Court has . . committed itself to the position that the fourth amendment\n\nreasonableness o f an arrest depends upon the existence o f state Jaw and the arrest\xe2\x80\x99s validity under that\nlaw.\xe2\x80\x9d). In any event, as w e have previously stated, w e believe that authority exists for the Executive to\nauthorize the FBI to make arrests in foreign countnes\n3r\xe2\x80\x99 As to an arrest in a non-public place, there are circumstances in which an arrest warrant is required.\n\nPayton v New York., 445 U S 573, 576 (1980). While presumably an arrest warrant often could be\nobtained, there are limitations to the extraterritonal junsdiction o f the magistrate\xe2\x80\x99s writ See 18 U.S C \xc2\xa7\xc2\xa7\n3041-3042 Commentators have questioned, however, whether the warrant requirements o f Payton and\nother cases should apply overseas. See Saltzburg, supra, 20 Va J Int\xe2\x80\x99l L. at 762; Stephan, supra, 20 Va. J\nInt\xe2\x80\x99l L at 792 n.44\n37 We note that fear that our agents w ill be extradited for violations o f foreign law during an en force\xc2\xad\nment operation authonzed by the President or the Attorney General is not a warranted concern The\nSecretary o f State always has discretion to refuse to extradite, even if the offense is covered by an extra\xc2\xad\ndition treaty entered into with another country See 18 U S C. \xc2\xa7 3186 (Secretary o f State \xe2\x80\x9cmay\xe2\x80\x9d extradite\nthe person committed under section 3184); Stndona v Grant, 619 F.2d 167 (2d Cir 1980), Wacker v.\n\nBisson, 348 F.2d 602, 606 (5th Cir 1965).\n\n183\n\ni\n\n\x0cinconsistent with international or foreign law does not violate the Fourth\nAmendment.\nWIT J JAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n184\n\n\x0c'