b'Enforcement by Federal Magistrates of Summonses Issued\nby the Federal Bureau of Investigation in Aid of Criminal\nInvestigations and Foreign Intelligence Activities\nCertain proposed legislation would have granted the Federal Bureau of Investigation pow er to\nissue sum m onses ordering the production of physical and documentary evidence in aid of\nfederal crim inal investigations and foreign intelligence activities. A provision of that legisla\xc2\xad\ntion allowing United States magistrates to enter orders enforcing such summonses would raise\nproblems under Article HI of the Constitution, because it could entail the exercise o f the\njudicial power by officials lacking life tenure and guaranteed non\'dim inution o f com pensa\xc2\xad\ntion.\nThe Article III problem s presented by the foregoing provision could be eliminated by providing\nthat the m agistrate\'s order would be treated as a report of findings and recom mendations,\nsubject to de novo review by a United States district judge with respect to findings and\nrecom mendations of the magistrate as to which objection is m ade by any party, whereby the\njudge could accept, reject, or modify the findings or recommendations of the magistrate.\nA provision in the proposed legislation would permit the ex parte issuance of an order prohibit\xc2\xad\ning disclosure o f such FBI summonses upon a showing that such disclosure might endanger\nlife or property; cause the flight of a suspect; result in the destruction of or tampering with\nevidence, or the intimidation of potential witnesses; or defeat federal remedies or penalties.\nUnder the standard articulated in M athews v. Eldridge, 424 U.S. 319 (1976), the absence o f a\npredeprivation hearing in this provision would not appear to violate the requirements of the\nDue Process Clause.\n\nDecember 11, 1986\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nO\n\nf f ic e o f\n\nA s s is t a n t A t t o r n e y G\n\neneral,\n\nL e g is l a t iv e A f f a ir s\n\nYou have requested the comments of this Office on a proposed bill to grant\nthe Federal Bureau of Investigation the power to issue a summons to acquire\nphysical and documentary evidence in aid of criminal investigations and for\xc2\xad\neign intelligence activities.\nThe authority will reside in the Director of the FBI, who may delegate it to\nsupervisory level Special Agents. The summons must be issued in writing,\nmust describe the materials sought with reasonable specificity, and must pro\xc2\xad\nvide sufficient time to assemble and make available the materials requested.\nThe Attorney General, in consultation with the Director of the FBI, is to\npromulgate regulations governing the issuance of a summons. Service of the\nsummons on a natural person must be by personal service. For a corporation,\npartnership, or other association, service may be by personal service or by\n145\n\n\x0cregistered or. certified mail. Service may be national. United States District\nCourts have jurisdiction to enforce or to modify or vacate a summons on\npetition of the government or of the person served, respectively.1 A magistrate\nor district judge may enter an order enforcing a summons or granting relief\nfrom a summons; disobedience of such an order is punishable by contempt. All\npetitions relating to foreign intelligence are to be heard in the Foreign Intelli\xc2\xad\ngence Surveillance Court.\nThe proposed bill contains certain limitations on summons authority, includ\xc2\xad\ning a provision proscribing the required production of materials that could not\nbe obtained under the standards governing a subpoena duces tecum issued in\naid of a grand jury investigation. Finally, the bill allows a court, per a district\njudge or magistrate, to issue an ex parte order prohibiting disclosure of the\nexistence of a summons where such disclosure would jeopardize life or physi\xc2\xad\ncal safety or would interfere with various law enforcement objectives. Such an\norder may be challenged in district court, and a district judge or magistrate may\nset it aside or modify it. Where the Director of the FBI, a Special Agent, or a\ndesignated Assistant Special Agent certifies that the summons is being issued\nfor foreign intelligence purposes, the statute prohibits disclosure of its exist\xc2\xad\nence. This prohibition against disclosure may be challenged in the Foreign\nIntelligence Surveillance Court.\nThis Office has comments with respect to three aspects of the bill. First, we\nbelieve that the provision allowing magistrates to enter final district court\norders enforcing the summons poses a constitutional problem, because Article\nIII requires that the judicial power of the United States be exercised by an\nofficial with life tenure and guaranteed non-diminution of compensation. Sec\xc2\xad\nond, the non-disclosure provisions impinge on the summoned party\xe2\x80\x99s liberty\ninterests and, therefore, raise questions about due process of law. Third, the\nprovision limiting the request for materials to those obtainable under a sub\xc2\xad\npoena duces tecum issued in aid of a grand jury investigation seems to be at\nodds with part of the rationale for proposing the legislation. We address each\nissue in turn.\n\nL TIhe Use off Magistrates to Enforce the Sunnimoinis\nThe proposed bill poses a potential constitutional problem with respect to the\nenforcement authority that it appears to confer upon United States magistrates.\nInsofar as \xc2\xa7 1(d)(3) gives the district court \xe2\x80\x9cjurisdiction to hear and determine\xe2\x80\x9d\na petition for enforcement of the administrative summons or for relief from the\nsummons, no issue of constitutionality arises. Section 1(d)(3) continues, how\xc2\xad\never, by stating: \xe2\x80\x9cThe petition may be heard and an order entered by a district\njudge or United States Magistrate for the district in which the petition was\nfiled. Any failure to obey the order of the court may be punished as a contempt\n1 V enue lies in the ju d ic ia l district in w hich the sum m ons is served, in w hich the investigation is pending, or\nin w hich the sum m oned person resides o r carries on business o r may be found.\n\n146\n\n\x0cthereof.\xe2\x80\x9d2 This provision appears on its face to empower United States magis\xc2\xad\ntrates to enter final orders of the district court, punishable by contempt of court.\nIf so, any such attempt to delegate this inherently judicial function to a United\nStates Magistrate, an office not endowed with the attributes of guaranteed non\xc2\xad\ndiminution of salary or life tenure,3 may run afoul of Article Ill\xe2\x80\x99s requirement\nthat \xe2\x80\x9cthe judicial Power of the United States\xe2\x80\x9d be exercised by judges with\nundiminishable compensation and tenure \xe2\x80\x9cduring good Behaviour.\xe2\x80\x9d U.S. Const,\nart. Ill, \xc2\xa7 1.\nThe starting point for analysis is ICC v. Brimson, 154 U.S. 447 (1894), in\nwhich the parties against whom the agency had issued a summons resisted\nenforcement in federal court on the ground that permitting or requiring courts\nof the United States to \xe2\x80\x9cuse their process in aid of inquiries before\xe2\x80\x9d a federal\nagency failed to meet the case or controversy requirement of Article III. Id. at\n468. In rejecting this argument, the Court noted that Congress has the power to\nregulate interstate commerce and that it would \xe2\x80\x9cgo far towards defeating the\nobject\xe2\x80\x9d of giving Congress the commerce power if the Court held that Congress\ncould not \xe2\x80\x9cestablish an administrative body with authority . . . to call witnesses\nbefore it, and to require the production of books, documents, and papers . . .\nrelating to the subject.\xe2\x80\x9d Id. at 474. The Brimson Court found that Congress\xe2\x80\x99 use\nof the courts of the United States was an appropriate means to effectuate this\npower because\n[t]he inquiry whether a witness before [an agency] is bound to\nanswer a particular question propounded to him, or to produce\nbooks, papers, etc., in his possession and called for by that body,\nis one that cannot be committed to a subordinate administrative\nor executive tribunal for final determination. Such a body could\nnot, under our system of government, and consistently with due\nprocess of law, be invested with authority to compel obedience\nto its orders by a judgment of fine or imprisonment.\nId. at 485. Analogizing the enforcement proceedings to the prosecution of a\n\nperson indicted under a statute requiring that person to appear or to produce\ncertain materials, the Court further stated that \xe2\x80\x9c[t]he performance of the duty\nwhich, according to the contention of the government, rests upon the defen\xc2\xad\ndants, cannot be directly enforced except by judicial process.\xe2\x80\x9d Id. at 487. In this\nvein, the Court added that summons enforcement involved \xe2\x80\x9cquestions judicial\n2 This provision seem s to apply equally lo petitions for enforcem ent by the governm ent and petitions for\nrelief by the parties. The analysis w ith respect to both kinds o f petition is the same, for the result o f either\npetition w ill be an o rd er enforcing the sum m ons if valid and enforceable or an order denying enforcem ent if\nnot.\n3 Under 28 U .S.C . \xc2\xa7 631(e), a full-tim e m agistrate has a term o f eight years and a part-tim e m agistrate\nserves for four years. A m agistrate may be rem oved before the end o f his term for \xe2\x80\x9cincom petency, m iscon\xc2\xad\nduct, neglect o f d u ty , o r physical o r mental d isability\xe2\x80\x9d and a \xe2\x80\x9cm agistrate\xe2\x80\x99s office may be term inated if the\njudicial conference determ ines that the services performed by his office are no longer needed.\xe2\x80\x9d Id. \xc2\xa7 631(i).\nA lthough 28 U .S.C . \xc2\xa7 634(b) provides that \xe2\x80\x9c the salary o f a full-tim e m agistrate shall not be reduced, during\nthe term in which he is serving, below the salary fixed for him at the beginning o f that term ,\xe2\x80\x9d this guarantee is\nnot o f constitutional dim ension, and Congress can revoke this provision sim ply by am ending Title 28.\n\n147\n\n\x0cin their nature, and presented in the customary forms of judicial proceedings.\xe2\x80\x9d\nId. at 487.\nB rim son\' s statement that the power to enforce an administrative summons\ncannot be committed to an administrative or executive \xe2\x80\x9ctribunal,\xe2\x80\x9d created\npursuant to Congress\xe2\x80\x99 Article I powers, necessarily suggests that such enforce\xc2\xad\nment constitutes a part of the \xe2\x80\x9cjudicial Power of the United States\xe2\x80\x9d and that\nonly an official endowed with Article Ill\xe2\x80\x99s guarantees of undiminished com\xc2\xad\npensation and tenure during \xe2\x80\x9cgood Behavior\xe2\x80\x9d could constitutionally compel\ncompliance with a summons. Given Congress\xe2\x80\x99 power to create Article I tribu\xc2\xad\nnals with significant judicial attributes short of these Article III characteristics,\nno other rationale for the Court\xe2\x80\x99s conclusion suggests itself. Indeed, the Brimson\nCourt\xe2\x80\x99s explicit reliance on \xe2\x80\x9cour system of government\xe2\x80\x9d shows that the Court\nwas employing a separation o f powers analysis, which, insofar as it addressed\nthe proper forum for \xe2\x80\x9cquestions judicial in their nature,\xe2\x80\x9d necessarily implicated\nArticle III.4 Thus, the Brimson Court\xe2\x80\x99s conclusion that the duty to obey a\nsummons \xe2\x80\x9ccannot be enforced except by judicial process\xe2\x80\x9d must be taken as a\nconstitutional pronouncement that commits such enforcement to Article IE courts.5\nSome lower courts have questioned the continuing vitality of this aspect of\nBrimson. For example, in Federal Maritime Comm \xe2\x80\x99n v. New York Terminal\nConference, 373 F.2d 424, 426 n.2 (2d Cir. 1967), Judge Friendly suggested\nthat \xe2\x80\x9cCongress might well consider whether the long record of frustration and\nless restrictive modem notions of the separation of powers might not make it\nwise to empower at least some administrative agencies to enforce subpoenas\nwithout having to resort to the courts in every case.\xe2\x80\x9d Presumably, Judge\nFriendly\xe2\x80\x99s conception of \xe2\x80\x9cless restrictive modem notions of the separation of\npowers\xe2\x80\x9d is a reference to the rise of the modem administrative state and the fact\nthat it has now become a commonplace for Article I agencies to adjudicate socalled \xe2\x80\x9cpublic rights.\xe2\x80\x9d Cf. Atlantic Richfield Co. v. D ep\xe2\x80\x99t o f Energy, 769 F.2d\n771, 793-94 (D.C. Cir. 1984) (relying on the advent of the modem administra\xc2\xad\ntive state and on the public rights doctrine to uphold the application of discov\xc2\xad\nery sanctions by an agency in response to a party\xe2\x80\x99s disobeying a subpoena).\nThe concept of \xe2\x80\x9cpublic rights\xe2\x80\x9d is, at best, elusive and, at worst, unfathom\xc2\xad\nable. The essence of the \xe2\x80\x9cpublic rights\xe2\x80\x9d doctrine is that Congress itself has the\npower to decide, or may delegate to an executive agency the authority to\ndecide, \xe2\x80\x9ccases . . . which arise between the Government and private persons in\nconnection with the performance of the constitutional functions of the execu\xc2\xad\n4 Cf. In Re Croban, 352 U .S. 330 (1957), in which the Suprem e Court im plied by way o f dictum that a state\nexecu tiv e o fficer co u ld issue a subpoena a n d punish non-com pliance by contem pt. T here is nothing to suggest\nth a t this dictum has any application to the federal level o r otherw ise lim its Brimson.\n5 S om e ju d g es have suggested doubt as to w hether Brimson\' s pronouncem ents on sum m ons enforcem ent\nw ere o f con stitu tio n al m agnitude. See, e.g., Penfield Company o f California v. Securities & Exchange\nCommission , 330 U .S. 5 8 5 ,6 0 3 -0 4 (1 9 4 7 ) (Frankfurter, J., jo in e d by Jackson, J., dissenting); United States v.\nZuskar. 237 F.2d 5 2 8 k533 (7th Cir. 1956) (\xe2\x80\x9c Since Brimson C ongress has customarily provided foi [the] resort\nto the courts by [adm inistrative] agencies fo r orders com pelling obedience to subpoenas.") (emphasis added).\nIn light o f Brimson* s reference to \xe2\x80\x9cour sy stem o f governm ent\xe2\x80\x9d and to \xe2\x80\x9cdue process o f law \xe2\x80\x9d in announcing the\nprinciple that sum m ons enforcem ent cannot be com m itted to an Article I tribunal, it is difficult to understand\nthe basis fo r any such conclusion.\n\n148\n\n\x0ctive and legislative departments.\xe2\x80\x9d Crowell v. Benson, 285 U.S. 22, 50 (1932).\nBecause Congress has plenary power to determine these \xe2\x80\x9cpublic rights\xe2\x80\x9d issues\nor to delegate their determination to executive officers, it may, therefore, also\ntake the expedient of committing such determinations to Article I tribunals not\nmeeting the dictates of Article III.6 Id.\nThe theory that this doctrine undercuts Brimson presumably depends on the\nnotion that, insofar as an agency summons relates to \xe2\x80\x9cpublic rights,\xe2\x80\x9d Congress\ncan commit its enforcement to a non-Article III tribunal. But because the\n\xe2\x80\x9cpublic rights\xe2\x80\x9d doctrine antedates Brimson, see, e.g., Murray\xe2\x80\x99s Lessee v. Hoboken\nLand and Improvement Co., 59 U.S. (18 How.) 272 (1856), and because the\nCourt in Brimson recognized that the Interstate Commerce Commission\xe2\x80\x99s\nsummons power related to matters of public rights, see 154 U.S. at 475-77, and\nnonetheless proclaimed that the enforcement of the Commission\xe2\x80\x99s summons\ncould not be committed to a subordinate executive or legislative tribunal, id. at\n485, any such theory must be dismissed. The Brimson Court, in fact, explicitly\nremarked that the legislative purpose for which the summons was sought did\nnot affect the conclusion that summons enforcement was an inherently judicial\nfunction. See id. at 487 (\xe2\x80\x9c[The enforcement of a summons] is none the less the\njudgment of a judicial tribunal dealing with questions judicial in . .. nature,\nand presented in the customary forms of judicial proceedings, because its effect\nmay be to aid . .. the performance of duties legally imposed . . . by Congress in\nexecution o f . .. power granted by the Constitution.\xe2\x80\x9d).\nThus, we conclude now, as we have concluded previously, see, e.g., \xe2\x80\x9cPro\xc2\xad\nposed Legislation to Grant Additional Power to the President\xe2\x80\x99s Commission on\nOrganized Crime,\xe2\x80\x9d 7 Op. O.L.C. 128 (1983), that Brimson remains good law,\nsee 1 K. Davis, Administrative Law Treatise \xc2\xa7 4:6, at 240 (2d ed. 1978), at least\nas to the enforcement of a summons through criminal penalties. There are\napparent exceptions related to Congress,7 the application of civil penalties,8\n6 Although the concept o f w hat constitutes a \xe2\x80\x9cpublic right" has undergone some recent expansion, see\nThomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 5 8 8 -8 9 (1985) (holding that a dispute\nbetween private individuals may constitute a \xe2\x80\x9cpublic rights" case insofar as \xe2\x80\x9cC ongress has the power, under\nArticle I, to authorize an agency adm inistering a com plex statutory schem e to allocate costs and benefits\namong voluntary participants in the program "), the m ere fact o f its broader application cannot supply a\nprincipled basis for concluding that Brimson is no longer good law.\n7 E ither House o f C ongress may compel docum entary o r oral testimony under pain of crim inal contempt.\nSee Jumey v. MacCracken, 294 U.S. 125, 148 (1935). The basis for this exception to the Brimson rule is\nrooted in the historical pow ers o f the H ouse o f Commons, the colonial assem blies, the C ontinental C ongress,\nand the state legislatures to m ete out crim inal punishm ent for contempt, see id. at 148-49, a practice that the\nSupreme Court upheld as constitutional as early as 1821. See Anderson v. Dunn , 19 U.S. (6 W heat.) 204\n(1821). This power is narrow and lim ited to punishing acts that \xe2\x80\x9cobstruct the performance o f the duties o f the\nlegislature." Jum ey , 294 U.S. at 148. In effect, therefore, Brimson m ust be read as establishing a general rule\nthat the use of crim inal contem pt to compel testimony fo r the implem entation and enforcem ent of law s is\ninherently judicial and m ust be com m itted to an A rticle III court, but that C ongress may, according to\nhistorical practice, itself use the pow ers o f crim inal contem pt to safeguard the integrity o f the legislative\nprocess as such. This lim ited exception, how ever, does not suggest that C ongress may delegate to an A rticle\nI tribunal the pow er to enforce com pelled production o f testim ony by citing persons for c nm inal contempt.\n8 W ith respect to civil penalties, the Suprem e Court has sustained schem es in which \xe2\x80\x9cC ongress has . . .\ncreated new statutory obligations, provided for civil penalties for their violation, and com m itted exclusively\nC ontinued\n\n149\n\n\x0cand various monetary claims enforceable in certain Article I courts of limited\njurisdiction where the party presumably consents to a waiver of his right to an\nArticle III forum.9\nThe ability of a magistrate under the proposed legislation to enter a final\njudgment enforcing a summons poses a potential constitutional objection pre\xc2\xad\ncisely because it exposes the summoned party to possible criminal contempt\nbefore any Article III determination of his or her right not to have the summons\nenforced.10 Under the proposed legislation, a non-Article III magistrate may\ninitially determine the validity of the summons in light of whatever constitu\xc2\xad\ntional or other objections the party may assert.11At that point, if the magistrate\nenters a final order of the district court directing the party to comply with the\nsummons and to produce the \xe2\x80\x9cbooks, records, papers, documents, or other\ntangible things\xe2\x80\x9d that may be reached by \xc2\xa7 1(a) of the proposed bill, two choices\nexist. The party can seek appellate review of this final order of the court,\nperhaps asking for a stay of the order, or the party can disobey the order and\nrisk a citation for contempt in district court. Neither option preserves the\nparty\xe2\x80\x99s right to resist enforcement of a summons in an Article III court without\nincurring criminal liability.\nIf the party seeks appellate review, the Article III appellate court does not\nconduct a de novo review of the magistrate\xe2\x80\x99s order, but applies a less searching\nstandard of review. See, e.g., FTC v. Brown & Williamson Tobacco Corp., 778\nF.2d 35, 41 (D.C. Cir. 1985) (upholding a district court\xe2\x80\x99s findings in a civil\naction because they were not \xe2\x80\x9cclearly erroneous\xe2\x80\x9d). In these circumstances,\nthere will be no determination by an Article III tribunal of the enforceability of\nthe summons, but merely a determination of the adequacy of the non-Article III\nmagistrate\xe2\x80\x99s conclusions in that regard.\nBy the same token, if the party chooses to disobey the magistrate\xe2\x80\x99s order, the\nmagistrate can secure a contempt citation against the recalcitrant party by\n8 ( . . . continued)\nto an adm inistrative agency the function o f deciding w hether a violation has . . . occurred.\xe2\x80\x9d Atlas Roofing Co.\nv. Occupational Safety and Health Review Comm\xe2\x80\x99n, 430 U .S. 442, 450 (1977). Thus, in asserting the\ncontinuing vitality o f the \xe2\x80\x9cw ell-established p rinciple\xe2\x80\x9d that A rticle I tribunals do not have the pow er to enforce\na sum m ons \xe2\x80\x98\xe2\x80\x9c by a ju d g m en t o f fine o r im prisonm ent,\xe2\x80\x9d \xe2\x80\x99 see Atlantic Richfield Co. v. Dep\'t o f Energy , 769\nF.2d 771, 793 (D.C. C ir. 1984), it appears necessary to append the caveat that this principle is limited to\nm atters involving enforcem ent through crim inal contem pt. But see NLRB v. International Medication\nSystems Ltd., 640 F.2d 1110, 1115-16 (9 th Cir. 1981) (holding that, because Brimson requires that \xe2\x80\x9cchal\xc2\xad\nlenges to agency subpoenas . . . be resolved by the judiciary before com pliance can be com pelled,\xe2\x80\x9d an agency\nc a n n o t a p p ly d is c o v e ry sanctions in re sp o n se to a p a rty \'s re fu sa l to com ply w ith a subpoena).\n9 See, e.g., 26 U.S.C. \xc2\xa7 7456(e) (Tax C ourt).\n10 T he follow ing analysis assumes th at \xc2\xa7 1(d)(3) o f the bill does not actually perm it the magistrate to cite\nthe party fo r contem pt. B ecause the language provides that \xe2\x80\x9c [a]ny failure to obey [an] order o f the court may\nbe punished as a contem pt thereof,\xe2\x80\x9d an d does not specify w hich authority or authorities may apply such a\nm easure, w e assum e that, w ith respect to contem pt o f m ag istrate\'s orders, the substantive grant o f contem pt\npow er m ay b e exercised only pursuant to 28 U.S.C. \xc2\xa7 636(e), which governs \xe2\x80\x9cacts or conduct\xe2\x80\x9d before a\nm agistrate th at \xe2\x80\x9cshall co n stitu te a contem pt o f the district co u rt.\xe2\x80\x9d\n11A party m ay oppose the enforcem ent o f a sum m ons on a num ber o f distinct bases, including First, Fourth,\nand F ifth A m endm ent objections, attom ey-client privilege, reasonableness, and a variety o f other substantive\nand procedural grounds. See 3 B. M ezines, J. Stein, & J. G ru ff, Administrative Law \xc2\xa7 21.01 [2], at 21-5 to 2 1 16 (1 9 8 5 ).\n\n150\n\n\x0ccertifying facts to the district court that show \xe2\x80\x9cdisobedience or resistance to any\nlawful order\xe2\x80\x9d of the magistrate or \xe2\x80\x9cfailure to produce, after having been\nordered to do so, any pertinent document.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 636(e)(1), (3). Even if\nthe district judge at this point undertook a de novo review of the validity of the\nunderlying order, the party would nonetheless have been deprived of his or her\nright to an Article III tribunal. Because the magistrate\xe2\x80\x99s decision about the\nvalidity of the summons would be entered as a judgment of the court, any de\nnovo determination by an Article III judge would be available only after the\npoint at which the party had already disobeyed an order of the court. In other\nwords, under the proposed legislation, criminal liability for contempt could\nbecome fixed before an Article III tribunal became available, even though the\ncitation for contempt could be entered only by the district judge. The party\nwould, therefore, have to risk criminal penalties in order to obtain a de novo\ndetermination of his or her rights by the Article III judge. Subjecting a party to\nthe Hobson\xe2\x80\x99s choice of incurring potential criminal contempt penalties or\nforegoing the right to an Article III tribunal arguably places an impermissible\nburden on the Brimson right to be free of liability for criminal contempt short of\nan Article III court\xe2\x80\x99s determination that the summons sought to be enforced is\nvalid and enforceable.\nBy contrast, treating the order of the magistrate as a mere recommendation\nthat could not become final until the district court judge undertook a de novo\nreview of the magistrate\xe2\x80\x99s conclusions would pose no constitutional problem.\nSee 28 U.S.C. \xc2\xa7 636(b). Under these circumstances, with no final order of the\ncourt to disobey at the point of the magistrate\xe2\x80\x99s decision, criminal liability for\ncontempt could not become fixed until after the district judge undertook de\nnovo review of the magistrate\xe2\x80\x99s determinations. Because such criminal liability\ncould attach, therefore, only for resistance to an order as to which the district\njudge had been the \xe2\x80\x9cultimate decisionmaker,\xe2\x80\x9d such a scheme would not offend\nthe Brimson rule. See United States v. Raddatz, 447 U.S. 667, 682 (1980)\n(approving the use of magistrates as adjuncts to Article III judges, provided\nthat the judges exercise supervisory control over the magistrates and remain the\n\xe2\x80\x9cultimate decisionmaker[s]\xe2\x80\x9d).\nIn this respect, the Internal Revenue Service\xe2\x80\x99s statutory summons power is\ninstructive. Under the Internal Revenue Code, the district courts have \xe2\x80\x9cjurisdic\xc2\xad\ntion\xe2\x80\x9d to compel compliance with a summons, see 26 U.S.C. \xc2\xa7 7602(a), yet\nmagistrates,12 as well as district judges, have the authority to enter \xe2\x80\x9csuch\norder[s] as [the judges or magistrates] shall deem proper, not inconsistent with\nthe law . . . of contempts, to enforce obedience to the requirements of the\nsummons and to punish such person for his default or disobedience.\xe2\x80\x9d 26 U.S.C.\n\xc2\xa7 7604(b). The courts have construed this power narrowly, holding that the\nCode does not empower a magistrate to enter an enforcement order as a final\njudgment of the court, see, e.g.. United States v. Cline, 566 F.2d 1220, 1221\n12 The Internal Revenue Code refers to U nited States com m issioners, instead o f magistrates. 26 U.S.C.\n\xc2\xa7 7604(b). U nited States com m issioners w ere the predecessors to United States m agistrates, and the Federal\nM agistrate\xe2\x80\x99s Act transferred the totality o f powers and duties o f the form er to the latter. 28 U.S.C. \xc2\xa7 636(a)(1).\n\n151\n\n\x0c(5th Cir. 1978); United States v. Haley, 541 F. 2d 678 (8th Cir. 1974), and\ntreating any magistrate\xe2\x80\x99s order as a mere recommendation subject to review by\nthe district court according to the strictures of the Federal Magistrate\xe2\x80\x99s Act,\nsee, e.g., United States v. First N a t\xe2\x80\x99l Bank o f Atlanta, 628 F.2d 871, 873 (5th\nCir. 1980); United States v. Wisnowski, 580 F.2d 149, 150 (5th Cir. 1978);\nUnited States v. First N at\xe2\x80\x99l Bank o f Rush Springs, 576 F.2d 852, 853 (10th Cir.\n1978); United States v. Zuskar, 237 F.2d 528, 533 (7th Cir. 1956).\nAs a Departmental proposal, however, it is prudent to avoid the constitu\xc2\xad\ntional defect posed if the bill were to be construed as permitting the entry of a\nfinal order by a magistrate. Accordingly, this Office strongly recommends that\nthe following language be added to \xc2\xa7 (l)(d)(3) of the proposed bill:\nAny order entered by a United States magistrate pursuant to\nauthority conferred by this Act shall be treated as a report\ncontaining proposed findings of fact and a recommendation for\nthe district judge. Within ten days after being served with a\ncopy, any party may serve and file written objections to such\nproposed findings and recommendations as provided by rules of\nthe court. A judge of the court shall make a de novo determina\xc2\xad\ntion of those portions of the report or specified proposed find\xc2\xad\nings or recommendations to which objection is made. A judge of\nthe court may accept, reject, or modify, in whole or in part, the\nfindings or recommendations made by the magistrate. The judge\nmay also receive further evidence or recommit the matter to the\nmagistrate with instructions.\nThis language would, under the test set out in United States v. Raddatz, 447\nU.S. 667,681-84 (1980), ensure the constitutionality of the magistrate\xe2\x80\x99s role in\nthe enforcement of the FBI summons by retaining the district judge as the\n\xe2\x80\x9cultimate decision-maker.\xe2\x80\x9d13\nIt bears noting that the language proposed forecloses magistrates\xe2\x80\x99 authority\nto enter final orders only insofar as that authority derives from the proposed\nbill. Thus, a magistrate could still enter a final order enforcing an FBI summons\npursuant to the independent authority granted in the Federal Magistrates Act.\nSpecifically, 28 U.S.C. \xc2\xa7 636(c) provides that\n[u]pon the consent of the parties, a full-time United States\nmagistrate or a part-time United States magistrate who serves as\n13 T he proposed language would also apply to any petition under \xc2\xa7 1(d)(3) for \xe2\x80\x9can order m odifying or\nsetting aside . . . a prohibition o f disclosure\xe2\x80\x9d o f the summons. A lthough Brimson does not address the issue o f\nprohibiting disclo su re o f the existence o f a sum m ons, it seems as if the rule set out in Brimson should apply\nw ith equal force to this m atter. First, the prohibition o f d isclosure o f a sum m ons is itself an integral part of\nsum m ons enforcem ent, for non-disclosure o f a third-party sum m ons m ay be essential to prevent the thwarting\no f the investigatory purposes o f the sum m ons or may be necessary to preclude otherwise unacceptable costs\nrelated to the issuance o f a summons (i.e., endangering life o r physical safety). Second, many sim ilar issues,\nsuch as First A m endm ent and reasonableness objections, govern the validity o f a non-disclosure order. Thus,\nwe believe th at the decision whether to o rd e r non-disclosure o f a sum m ons is an inherently judicial function\nthat m ust be com m itted to an Article III tribunal.\n\n152\n\n\x0ca full-time judicial officer may conduct any or all proceedings in\na jury or nonjury civil matter and order the entry of judgment in\nthe case, when specially designated to exercise such jurisdiction\nby the district court or courts he serves. Upon the consent of the\nparties, pursuant to their specific written request, any other parttime magistrate may exercise such jurisdiction, if such magis\xc2\xad\ntrate meets the bar membership requirements set forth in\n\xc2\xa7 631(b)(1) and the chief judge of the district court certifies that\na full-time magistrate is not reasonably available in accordance\nwith [the] guidelines established by the judicial council of the\ncircuit.\nAlthough the Supreme Court has never spoken to the constitutionality of this\nprovision, the Courts of Appeals have overwhelmingly endorsed it as constitu\xc2\xad\ntional insofar as it is dependent on the consent of the parties. See, e.g.. Fields v.\nWashington Metropolitan Area Transit Authority, 743 F.2d 890 (D.C. Cir.\n1984); Collins v. Foreman, 729 F.2d 108 (2d Cir.), cert, denied, 469 U.S. 870\n(1984); Goldstein v. Kelleher, 728 F.2d 32 (1st Cir.), cert, denied, 469 U.S. 852\n(1984); Pacemaker Diagnostic Clinic o f America, Inc. v. Instromedix, Inc., 725\nF.2d 537 (9th Cir.) (en banc), cert, denied, 469 U.S. 824 (1984). The Depart\xc2\xad\nment, therefore, would appear to have little cause to consider including lan\xc2\xad\nguage that would explicitly negate \xc2\xa7 636(c)\xe2\x80\x99s power of consensual reference to\nmagistrates as applied to petitions for enforcement of or relief from an FBI\nsummons.\n,\nA word of caution on this point is in order, however. All of the circuit court\ncases upholding 28 U.S.C. \xc2\xa7 636(c) antedate the Supreme Court\xe2\x80\x99s recent opin\xc2\xad\nion in CFTC v. Schor, 478 U.S. 833 (1986). Although Schor upheld a scheme\nin which, with the consent of the parties, the Commodity Futures Trading\nCommission (CFTC) could exercise pendent or ancillary jurisdiction over\ncommon law counterclaims arising out of the transaction or occurrence that\nformed the basis for the underlying statutory claim, portions of Schor\' s ratio\xc2\xad\nnale raises doubts as to the continuing validity of \xc2\xa7 636(c). To the extent that\nSchor held that the parties could waive the \xe2\x80\x9cpersonal right\xe2\x80\x9d to an Article III\ntribunal, the decision is highly favorable to the consensual reference provisions\ncontained in the Federal Magistrate\xe2\x80\x99s Act. But as to structural concerns involv\xc2\xad\ning the separation of powers, the Court found it significant that (1) the scheme\ninvolved the exercise of non-Article III power only in the \xe2\x80\x98\xe2\x80\x9c particularized\narea\xe2\x80\x99\xe2\x80\x9d of commodities exchange law; (2) CFTC orders were not self-executing\nand could only be enforced by district courts; (3) orders were reviewed under\nthe \xe2\x80\x9cweight of the evidence\xe2\x80\x9d standard rather than the \xe2\x80\x9cclearly erroneous\xe2\x80\x9d\nstandard; (4) the district court had de novo review of questions of law; and\n(5) the CFTC could not exercise all the \xe2\x80\x9cordinary\xe2\x80\x9d functions of a district court,\nsuch as presiding over a jury trial or issuing writs of habeas corpus. Id. at 854-56.\nThe consensual reference scheme under 28 U.S.C. \xc2\xa7 636(c) does not share\nmany of the characteristics that the Schor Court found comforting from a\n153\n\n\x0cseparation of powers standpoint. First, the exercise of a magistrate\xe2\x80\x99s authority\nunder the consensual reference provision extends to any \xe2\x80\x9ccivil matter.\xe2\x80\x9d 28\nU.S.C. \xc2\xa7 636(c)(1). Second, although only the district judge can issue a con\xc2\xad\ntempt citation to enforce the magistrate\xe2\x80\x99s order, see 28 U.S.C. \xc2\xa7 636(e), that\norder is nonetheless a final judgment of the district court and, as such, is self\xc2\xad\nexecuting. Third, because the judgment entered by the magistrate is appealable\n\xe2\x80\x9cin the same manner as an appeal from any other judgment of [the] district\ncourt,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 636(c)(3),(4), the standard of review of factual findings is\nthe \xe2\x80\x9cclearly erroneous\xe2\x80\x9d standard. See Fed. R. Civ. P. 52(a).\nIndeed, the consensual reference scheme enjoys only two of the characteris\xc2\xad\ntics found significant by the Schor Court. First, the Article III court that\nreviews the magistrate\xe2\x80\x99s decision has de novo review of all questions of law.\nSecond, while the magistrate can exercise many of the \xe2\x80\x9cordinary functions\xe2\x80\x9d of\nthe district court, including the conduct of a jury trial and, presumably, the\npower to issue a writ of habeas corpus, there remain significant functions, such\nas the ability to cite a party for contempt, that the magistrate does not possess\neven under the consensual reference scheme.\nYet, despite the dissimilarities between the CFTC\xe2\x80\x99s counterclaim mecha\xc2\xad\nnism in Schor sad the consensual reference provision of the Federal Magistrate\xe2\x80\x99s\nAct, there is reason to believe that the latter still passes constitutional muster.\nThe Schor Court found the five factors listed above to be relevant in determin\xc2\xad\ning whether the \xe2\x80\x9ccongressional scheme. . . impermissibly intruded on the\nprovince of the judiciary,\xe2\x80\x9d 478 U.S. at 851-52, but in no way purported to\nmake such factors an exhaustive and exclusive list of the safeguards that could\njustify the consensual resort to a non-Article III tribunal for matters that would\notherwise require adjudication in an Article III court. Indeed, Schor may\nactually buttress the conclusion reached by the Courts of Appeals insofar as it\nendorses the mode of analysis widely employed in the lower court cases\nregarding consensual reference.\nUnder this analytical framework, the parties\xe2\x80\x99 consent serves as a waiver of\nany personal right to an Article III tribunal, and the acceptability of the\nconsensual reference depends on the extent to which the statutory scheme\nprotects the judiciary from \xe2\x80\x9cimpermissibl[e] intrusion]\xe2\x80\x9d by the executive and\nlegislative branches.\nThe question of what constitutes an \xe2\x80\x9cimpermissibl[e] intrusion] on the\nprovince of the judiciary\xe2\x80\x9d involves matters of degree, making it difficult to\npredict with any confidence how the Supreme Court will react to the consen\xc2\xad\nsual reference scheme found in 28 U.S.C. \xc2\xa7 636(c). The Courts of Appeals,\nhowever, have identified several features of the Federal Magistrate\xe2\x80\x99s Act as\nsignificant protections against the encroachment of the executive and legisla\xc2\xad\ntive branches on the independence of the judiciary,14 and, given the widespread\n14 F irst, the m agistrates are appointed by district judges and are subject to removal only by the district\nju d g e s or, in som e circum stances, by th e circuit judicial council. See, e.g., Geras v. Lafayette Display\nFixtures Inc., 742 F.2d 1037, 1043 (7 th Cir. 1984); Pacemaker Diagnostic Clinic o f America , Inc v.\nContinued\n\n154\n\n\x0cconcurrence of the Courts of Appeals,15 it may reasonably be predicted that\nthese features may suffice to sustain the scheme in the Supreme Court under\nthe kind of analysis set out Schor.\nII. Ex Parte Prohibition Against Disclosure\nSection 1(f)(1) of the proposed legislation permits the ex parte issuance of an\norder prohibiting disclosure of an FBI summons upon a showing that \xe2\x80\x9cthe\nmaterials being sought may be relevant to a legitimate law enforcement inquiry\nand that there is reason to believe that such disclosure may result in: (A)\nendangering the life or physical property of any person; (B) flight from pros\xc2\xad\necution; (C) destruction or tampering with evidence; (D) intimidation of poten\xc2\xad\ntial witnesses; or (E) defeating any remedy or penalty provided for violation of\nthe laws of the United States.\xe2\x80\x9d The order may be issued by a magistrate or\ndistrict judge, and the person against whom the prohibition is directed may\nobtain relief by filing a petition in the district court pursuant to \xc2\xa7 1(d)(2) of the\nproposed bill.16 Because the prohibition against disclosure of the summons\nconstitutes a clear deprivation of liberty, the issuance of the ex parte order must\ncomport with the requirements of the due process clause of the Fifth Amend\xc2\xad\nment. With respect to \xc2\xa7 1(f)(2), the issue is thus whether a prompt postdeprivation\nhearing is sufficient to meet the dictates of due process.\nUnder Mathews v. Eldridge, 424 U.S. 319, 335 (1976):\n[Identification of the specific dictates of due process generally\nrequires consideration of three distinct factors: First, the private\ninterest that will be affected by the official action; second, the\nrisk of an erroneous deprivation of such interest through the\nprocedures used, and the probable value, if any, of additional or\nsubstitute procedural safeguards; and finally, the Government\xe2\x80\x99s\ninterest, including the function involved and the fiscal and ad\xc2\xad\nministrative burdens that the additional or substitute procedural\nrequirement would entail.\n14 (Continued)\n\nInstromedix, Inc., 725 F.2d 537, 545 (9th C ir.) (en banc), cert, denied, 469 U.S. 824 (1984). Second, the\ndistrict judge m ust specially designate the m agistrate to exercise jurisdiction. See, e.g., Collins v. Foreman,\n729 F.2d 108, 115 (2d C ir.), cert, denied, 469 U.S. 870 (1984). Third, the district court retains the pow er to\nwithdraw the reference o f the case from the magistrate. See, e.g., Collins, 729 F.2d at 115; Pacemaker, 725 F.2d at\n545. Fourth, the magistrate lacks any power to cite the parties for contempt. See, e.g., Geras, 742 F.2d at 1043.\n15 See Note, The Boundaries o f Article III: Delegation o f Final Decisionmaking Authority to Magistrates,\n52 U. Chi. L. Rev. 1032, 1034 n.16 (1985).\n16 Section 1(0(1) em pow ers a m agistrate to enter an ex parte order im posing the prohibition. Because this\norder is presum ably punishable by crim inal contem pt pursuant to 28 U.S.C. \xc2\xa7 636(e), this O ffice believes that\nthe same principles that govern summons enforcem ent under Brimson should apply to the entry o f a\nprohibition order, and that language should be added to indicate that an order entered by a m agistrate under\n\xc2\xa7 1(0(1) has no binding effect o f its own. B ecause the proceedings m ust proceed ex parte to serve the\ninterests o f prohibiting disclosure, and because review by the district judge prior to entry o f judgm ent cannot\nproceed, therefore, upon the objections o f the party to be bound, language should be added treating every\nm agistrate\'s order under \xc2\xa7 1 ( 0 ( 0 as a m ere recom m endation to be given de novo review ex parte by the\ndistrict judge before it can becom e an order o f the court.\n\n155\n\n\x0cUnder this test, it appears that the absence of a pre-deprivation hearing under\n\xc2\xa7 1(f)(1) would pass constitutional muster.\nIn this case, the First factor appears to favor the constitutionality of \xc2\xa7 1(f)(1),\nfor a \xe2\x80\x9cclaim to a predeprivation hearing as a matter of constitutional right rests\non the proposition that full relief cannot be obtained at a postdeprivation\nhearing.\xe2\x80\x9d Id. at 331. Because the party against whom the summons and prohibi\xc2\xad\ntion order are directed can immediately go into court and seek relief from the\norder, that party\xe2\x80\x99s liberty interest in speech is only minimally impaired. No\nirreparable harm will occur if a party must simply wait to disclose the existence\nof a summons until after a court has heard the party\xe2\x80\x99s petition for relief; if the\nparty has a protectible First Amendment or statutory right to disclose the\nexistence of the summons, the use of the ex parte procedures set out in the\nproposed legislation will only delay, and not defeat, that right. This temporary\ninterference with a protected interest will not threaten the very subsistence or\nwell-being of the party, as in Goldberg v. Kelly, 397 U.S. 254 (1970), a case\ninvolving eligibility for welfare benefits, or in Memphis Light, Gas & Water\nDivision v. Craft, 436 U.S. 1 (1978), a case involving the termination of utility\nservices. Although a permanent or extended deprivation without any hearing\nmight pose serious constitutional problems, the availability of prompt\npostdeprivation review reduces the harm to the protected interest of the party.\nSee M itchell v. W.T. Grant Co., 416 U.S. 600 (1974).\nThe possibility of wrongful deprivation also seems slight. Section 1(0(1) of\nthe proposed bill has set out very narrow and specific bases upon which a non\xc2\xad\ndisclosure order may be issued, and the government must presumably supply\nconcrete evidence showing why it has reason to believe that disclosure would\nlead to endangerment of life, flight from prosecution, and the like. And the fact\nthat a judge or judicial adjunct makes the initial determination and the judge is\nthe ultimate decisionmaker minimizes the possibility that the deprivation will\nbe in error.17 See Mitchell, 416U.S. at 616-17 (\xe2\x80\x9cThe . . . law [at issue] provides\nfor judicial control of the [property sequestration] process from beginning to\nend. This control is one of the measures adopted . . . to minimize the risk that\nthe ex parte procedure will lead to a wrongful taking.\xe2\x80\x9d).\nFinally, the government has a strong interest in the procedure being em\xc2\xad\nployed. Disclosure of a summons is an all or nothing proposition. Once it\noccurs, it cannot be undone. Thus, it is imperative that the government be able\nto present the summoned party with a prohibition against disclosure under pain\nof contempt at the time the party becomes aware of the summons. If no legal\ncompulsion existed to preclude disclosure ab initio, and the government could\nnot secure the non-disclosure order until notice and hearing were provided, no\nsuch prohibition could ever occur, for the party could make any desired\ndisclosures pending the hearing on the prohibition.\nThus, given the important governmental interest in preventing endangerment\nof health, see, e.g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594\n17 T his presum es that the bill will be changed to reflect o u r recom m endation to make the m agistrate\'s non\xc2\xad\ndisclo su re o rder m erely advisory.\n\n156\n\n\x0c(1950) (allowing seizure without a predeprivation hearing where necessary to\nprotect the public from misbranded drugs), in apprehending and convicting\ncriminals, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 93-94 n.30 (1972), and in\npreserving and discovering the evidence of crimes, see, e.g., id., the government\xe2\x80\x99s\nability to prohibit disclosure of a summons ex parte under the circumstances\nprovided for in the proposed bill seems well grounded.\nThe bill contains another non-disclosure provision that merits brief attention\nas well. Section 1(f)(2) prohibits disclosure of a summons whenever the FBI\nDirector, a Special Agent, or designated Assistant Special Agents-In-Charge\ncertify that the summons was issued for the purpose of collecting positive\nforeign intelligence or counterintelligence. This Office believes that this sec\xc2\xad\ntion also satisfies the due process requirements of the Constitution. The liberty\ninterest of the summoned party is the same as in \xc2\xa7 1(f)(1). And although the\napplication of the prohibition against disclosure is not subject to judicial\nsupervision under this subsection, the factual predicate for prohibition is very\nnarrow and specific and the possibility of wrongful deprivation seems very\nslim. Moreover, the government\xe2\x80\x99s interest in excluding judicial participation at\nthe point of the initial determination of prohibition in this case seems very\nstrong, insofar as the foreign intelligence interests of the United States require\nthat as few people as possible be aware of ongoing intelligence operations.\nFinally, it is clear that national security is an important governmental interest\nthat can justify the delay of an available hearing until after the deprivation of a\nprotectible interest. See , e.g., Stoehr v. Wallace, 255 U.S. 239, 245 (1921);\nCentral Union Trust v. Garvan, 254 U.S. 554, 566 (1921).\nSection 1(f)(2), moreover, presents no Brimson problem, for none of the\nexecutive officers designated to act has the power to enter any kind of enforce\xc2\xad\nable order, and, therefore, no non-Article III official is empowered to perform\nany such inherently judicial function.18 The officials certify a summons as\nbeing for the purpose of collecting foreign intelligence and then a self-operative statutory prohibition takes effect. Violation of this prohibition presumably\ncan be punished only by virtue of judicial process.\nOne problem with the proposed bill, however, is that it specifies no penalties\nfor violating the statutory prohibition contained in \xc2\xa7 1(f)(2). This deficiency\nshould be rectified before submitting the bill to Congress.\nIII. Subpoena Duces Tecum\nSection 1(e)(2) states that \xe2\x80\x9c[n]o summons shall require the production of any\nmaterials, if such materials would be protected from production under the\nstandards applicable to a subpoena duces tecum entered in aid of a grand jury\ninvestigation.\xe2\x80\x9d The inclusion of this provision is somewhat curious insofar as\n18There is a distinction betw een certifying a fact that triggers a statutory prohibition that is enforceable by\njudicial process and entering a ju d icial order enforceable by criminal contem pt after determ ining a case or\ncontroversy The latter is inherently a judicial function and must, according to Brimson , be undertaken only\nby an Article 111 tribunal.\n\n157\n\n\x0cone of the avowed purposes of proposing the legislation is to allow the FBI\ngreater scope in locating fugitives for the purposes of turning them over to state\nand local authorities and in gathering data for foreign intelligence purposes,\nrather than for purposes of federal investigation and indictment. Since it would\nnormally be considered improper to use a grand jury subpoena for such pur\xc2\xad\nposes, \xc2\xa7 1(e)(2) may be subject to judicial interpretation that could thwart part\nof the legislative purpose. Accordingly, \xc2\xa7 1(e)(2) should be made clearer to\nensure that it will not be used to preclude the gathering of information for\nlocating fugitive felons and conducting foreign intelligence functions.\nConclusion\nFor the above reasons, we conclude that the provisions of \xc2\xa7\xc2\xa7 1(d)(3) and\n1(f)(1) require modification to ensure the statute\xe2\x80\x99s constitutionality. The inser\xc2\xad\ntion we propose which treats a magistrate\xe2\x80\x99s order as a recommendation for the\ndistrict judge for the purposes of the Act should, we believe, satisfy this\nobjection. In addition, \xc2\xa7 1(0(2), providing for nondisclosure in the context of a\nsummons for positive foreign intelligence or counterintelligence information,\nshould specify a legal method of enforcement. Finally, the reference to the\ngrand jury standard in \xc2\xa7 1(c)(2) seems contrary to the avowed purpose of the\nbill without further explanation.\nD o u g la s W. K m iec\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n158\n\n\x0c'


b'Assertion of Executive Privilege for Memorandum to the\nPresident Concerning Efforts to Combat Drug Trafficking\nExecutive privilege may properly be asserted with respect to a memorandum to the President from\nthe Director o f the Federal Bureau of Investigation and the Administrator o f the Drug Enforcement\nAdm inistration containing confidential advice and recommendations regarding efforts to combat\ndrug trafficking. The memorandum was subpoenaed by the Subcommittee on National Security,\nInternational Affairs and Criminal Justice of the Committee on Government Reform and Oversight\no f the House o f Representatives.\n\nSeptember 30, 1996\n\nTHE PRESIDENT\nTH E W HITE HOUSE\nMy Dear M r. President: You have requested my legal advice as to whether\nexecutive privilege may properly be asserted with respect to a document that was\nsubpoenaed on September 27, 1996 by the Subcommittee on National Security,\nInternational Affairs and Criminal Justice of the Committee on Government Re\xc2\xad\nform and Oversight of the House of Representatives.\nThe subpoenaed document is a memorandum to you from the Director of the\nFederal Bureau of Investigation (\xe2\x80\x9c FBI\xe2\x80\x9d ) and the Administrator of the Drug En\xc2\xad\nforcement Administration (\xe2\x80\x9c DEA\xe2\x80\x9d ), containing confidential advice and rec\xc2\xad\nommendations regarding efforts to combat drug trafficking. The Subcommittee\nfirst requested this document on September 17, 1996. By letter dated September\n27, 1996, the Deputy Counsel to the President informed the Subcommittee of the\nWhite House\xe2\x80\x99s concerns regarding the need to preserve the confidentiality of de\xc2\xad\nliberative communications to the President and indicated that the Department of\nJustice is prepared to accommodate the Subcommittee\xe2\x80\x99s request by providing a\nbriefing on the subject addressed by the memorandum.\nThe memorandum to you from the FBI Director and the DEA Administrator\nclearly falls within the scope of executive privilege. It is well established that\nexecutive privilege applies to confidential communications to the President. See\ngenerally U nited States v. Nixon, 418 U.S. 683, 705-13 (1974); Nixon v. Adminis\xc2\xad\ntrator o f G eneral Servs., 433 U.S. 425, 446-55 (1977). The Supreme Court has\nrecognized\nthe necessity for protection of the public interest in candid, objec\xc2\xad\ntive, and even blunt or harsh opinions in Presidential decision\xc2\xad\nmaking. A President and those who assist him must be free to ex\xc2\xad\nplore alternatives in the process of shaping policies and making\ndecisions and to do so in a way many would be unwilling to express\nexcept privately. These are the considerations justifying a presump\xc2\xad\ntive privilege for Presidential communications. The privilege is fun8\n\n\x0cA ssertion o f E xecutive P rivilege fo r M em orandum to the P resident C oncerning E ffo rts to C om bat\nD rug Trafficking\n\ndamental to the operation of Government and inextricably rooted\nin the separation of powers under the Constitution.\nUnited States v. Nixon, 418 U.S. at 708.\n\nUnder controlling case law, in order to justify a demand for material protected\nby executive privilege, a congressional committee is required to demonstrate that\nthe information sought is \xe2\x80\x9c demonstrably critical to the responsible fulfillment of\nthe Committee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Committee on Presidential Campaign\nActivities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). The only jus\xc2\xad\ntification the Subcommittee has provided for access to this document is its over\xc2\xad\nsight interest regarding countemarcotics policy. See Letter for the President, from\nWilliam H. Zeliff, Jr., Chairman, Subcommittee on National Security, International\nAffairs and Criminal Justice (Sept. 17, 1996). It is clear that such a generalized\ninterest weighs substantially less in the constitutional balancing than a specific\nneed in connection with the consideration of legislation. See Letter for the Presi\xc2\xad\ndent, from William French Smith, Attorney General, Re: Assertion o f Executive\nPrivilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 30 (1981)\n(\xe2\x80\x9c [T]he interest of Congress in obtaining information for oversight purposes is,\nI believe, considerably weaker than its interest when specific legislative proposals\nare in question.\xe2\x80\x9d ). Accordingly, conducting the balancing required by the case\nlaw, see Senate Select Committee, 498 F.2d at 729-30; United States v. Nixon,\n418 U.S. at 706-07,1 do not believe that access to this Presidential communication\nwould be held by the courts to be \xe2\x80\x9c demonstrably critical to the responsible fulfill\xc2\xad\nment of the [Subcommittee\xe2\x80\x99s] functions.\xe2\x80\x9d Senate Select Committee, 498 F.2d at\n731.\nIn conclusion, it is my legal judgment that executive privilege may properly\nbe asserted in response to the Subcommittee\xe2\x80\x99s subpoena.\nSincerely,\nJANET RENO\nAttorney General\n\n9\n\n\x0c\x0cOPINIONS\nOF THE\n\nOFFICE OF LEGAL COUNSEL\n\n11\n\n\x0c'


b'Proposed Interdiction of Haitian Flag Vessels\nProposed executive agreement between the government of Haiti and the United States,\nby w hich the U.S. Coast G uard is to stop and board Haitian flag vessels on the high\nseas in order to prevent Haitians from entering the United States illegally, is authorized\nboth by the U.S. immigration laws, and by the President\xe2\x80\x99s inherent constitutional\npow er to protect the Nation and to conduct foreign relations.\nA uthority for provision in proposed agreement with Haiti, by which the Coast G uard\nwill detain Haitians emigrating in violation of Haitian law and return them to Haiti,\nderives from the President\xe2\x80\x99s statutory pow er to guard the borders against illegal entry\nof aliens, and from his inherent constitutional power in the field o f foreign relations.\n\nAugust 11, 1981\nMEMORANDUM OPINION FOR TH E ATTORNEY GENERAL\nThis responds to your inquiry concerning the implementation of the\nproposed interdiction of Haitian flag vessels. As presently formulated,\nthe government of Haiti and the United States will enter into an\nagreement (the Agreement) permitting the United States Coast Guard\nto stop Haitian flag vessels, board them and ascertain whether any of\nthe Haitians aboard have left Haiti in violation of its travel laws and\nwhether they intend to travel to the United States in violation of U.S.\nimmigration laws. Individuals who are determined to have left Haiti\nillegally will be returned to Haiti pursuant to the President\xe2\x80\x99s authority\nin the field of foreign relations in order to assist Haiti in the enforce\xc2\xad\nment of its emigration laws. Those who have left Haiti, whether legally\nor illegally, in an attempt to enter the United States illegally will be\nreturned to Haiti pursuant to the President\xe2\x80\x99s authority under 8 U.S.C.\n\xc2\xa7\xc2\xa7 1182(0 and 1185(a)(1) to enforce U.S. immigration laws, to protect\nour sovereignty, and as an exercise of his power in the field of foreign\nrelations. *\nThe Coast Guard plans to intercept the Haitian vessels in the Wind\xc2\xad\nward Passage, on the high seas but relatively close to Haiti.2 At that\n1We note that the Agreement does not cover United States vessels either while they are in Haitian\nw aters o r while they are on the high seas. Therefore, the Agreement does not contemplate the return\no f the Haitians on board such vessels to Haiti.\n2 Placing the Coast Guard vessels closer to the United States is apparently not possible because of\nthe increased difficulties and costs of detecting and interdicting vessels from Haiti once they have\ntraveled far from Haiti and the practical problems o f caring for the Haitians during the 4-day voyage\nback to Haiti.\n\n242\n\n\x0cpoint, Haitians will be headed toward either the United States or the\nBahamas. Although experience suggests that two-thirds of the vessels\nare headed toward the United States, it is probable that, as the interdic\xc2\xad\ntion continues, an ever-increasing number will claim they are going to\nthe Bahamas. Unless the Haitians admit they are coming to the United\nStates, establishing their intended destination may become more diffi\xc2\xad\ncult.\n1. Effect o f the Immigration and Nationality Act (INA). The interdic\xc2\xad\ntion will not be affected by the provisions of the INA. Aliens are\nentitled to exclusion proceedings only when they arrive \xe2\x80\x9cby water or\nby air at any port within the United States.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1221(a). They\nare entitled to deportation proceedings only if they are \xe2\x80\x9cwithin the\nUnited States.\xe2\x80\x9d 8 U.S.C- \xc2\xa7 1251. Asylum claims may only be filed by\nthose \xe2\x80\x9cphysically present in the United States or at a land border or\nport of entry.\xe2\x80\x9d The Refugee Act of 1980, Pub. L. No. 96-212, \xc2\xa7 201(b),\n94 Stat. 105 (to be codified at 8 U.S.C. \xc2\xa7 1158(a)). Since the interdiction\nwill be taking place on the high seas, which is not part of the United\nStates, 8 U.S.C. \xc2\xa7 1101 (a)(38), none of these provisions will apply.\n2. Coast Guard Authority to Enforce United States Laws. The Coast\nGuard is authorized to stop ships upon the high seas in order to detect\nviolations of American laws. 14 U.S.C. \xc2\xa7 89(a).3 The interdiction at seas\nof a foreign flag vessel requires the permission of the flag state, which\nthe contemplated Agreement expressly grants.4 The authority for re\xc2\xad\nturning the Haitians who are attempting to enter the United States\nillegally may be found in both statutory authority and implied constitu\xc2\xad\ntional authority under Article II. The two statutes are 8 U.S.C.\n\xc2\xa7\xc2\xa7 1182(f) and 1185(a)(1). The first, 8 U.S.C. \xc2\xa7 1182(0, states:\nWhenever the President finds that the entry of any aliens\nor of any class of aliens into the United States would be\ndetrimental to the interests of the United States, he may\n3This section states.\nThe Coast Guard may make inquiries, examinations, inspections, searches, seizures,\nand arrests upon the high seas . . . for the prevention, detection, and suppression of\nviolations o f laws of the United States. For such purposes, commissioned, warrant,\nand petty officers may at any time go on board of any vessel subject to the\njurisdiction, or to the operation of any law, of the United States, address inquiries to\nthose on board, examine the ship\'s documents and papers, and examine, inspect, and\nsearch the vessel and use all necessary force to compel compliance When from such\ninquiries, examination, inspection, or search it appears that a breach of the laws of\nthe United States rendering a person liable to arrest is being, or has been committed,\nby any person, such person shall be arrested or, if escaping to shore, shall be\nimmediately pursued and arrested on shore, or other lawful and appropriate action\nshall be taken; or, if it shall appear that a breach of the laws of the United States has\nbeen committed so as to render such vessel, or the merchandise, or any part thereof,\non board of, or brought into the United States by, such vessel, liable to forfeiture, or\nso as to render such vessel liable to a fine or penalty and if necessary to secure such\nfine or penalty, such vessel or such merchandise, or both, shall be seized.\n4The continuing jurisdiction of a country over vessels flying its flag on the high seas is a basic\nprinciple of international law. 1 L Oppenheim, International Law \xc2\xa7 264 (8th ed. 1955) This principle\nhas been codified in the Convention on the High Seas, Apr. 29, 1958, art. 6, 13 U.S.T. 2313, T.I.A.S\nNo. 5200. Ships flying no flag may also be stopped to determine if they are stateless\n\n243\n\n\x0cby proclamation, and for such period as he shall deem\nnecessary, suspend the entry of all aliens or any class of\naliens as immigrants or nonimmigrants, or impose on the\nentry of aliens any restrictions he may deem to be appro\xc2\xad\npriate. 5\nThe second, 8 U.S.C. \xc2\xa7 1185(a)(1), provides:\n(a) Until otherwise ordered by the President or Congress, it shall\nbe unlawful\xe2\x80\x94\n(1) for any alien to . . . attempt to . . . enter the United States\nexcept under such reasonable rules, regulations, and orders,\nand subject to such limitations and exceptions as the President\nmay prescribe . . .\nUnder \xc2\xa7 1182(f), the President would make a finding that the entry of\nall Haitians without proper documentation is detrimental to the interests\nof the United States and issue a proclamation suspending their entry. It\ncould be argued that the entry of illegal aliens, Haitians or otherwise, is\nalready \xe2\x80\x9csuspended\xe2\x80\x9d since it is already illegal for them to come, and\nthat the section is directed against those who are otherwise eligible.\nThe section, however, is not limited by its terms to documented aliens,\nand the legislative history is silent on this point. Since the section\ndelegates to the President the authority to exclude entirely certain\nclasses of aliens, we believe that a return of the Haitians can be based\non the Coast Guard\xe2\x80\x99s power to enforce federal laws. 14 U.S.C. \xc2\xa7 89(a).\nLikewise, \xc2\xa7 1185(a)(1) makes it unlawful for any alien to enter the\ncountry unless in compliance with the rules and limitations set by the\nPresident. All of the undocumented Haitians who are attempting to\nenter the country are therefore doing so in violation of this section. See\nalso 8 U.S.C. \xc2\xa7 1103 (Attorney General\xe2\x80\x99s duty to control and guard the\nborders); E x parte Siebold, 100 U.S. 371, 396 (1879).\xc2\xae\nImplied constitutional power is less clear. Where Congress has acted,\nthe regulation of immigration is an area in which Congress exercises\nplenary power. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (power\nto exclude aliens prevails over First Amendment interests of citizens).\nThere has been recognition, however, that the sovereignty of the\nNation, which is the basis of our ability to exclude all aliens, is lodged\nin both political branches of the government. See Ekiu v. United States,\n142 U.S. 651, 659 (1892). An explicit discussion is found in United States\nex rel. K n a u ff v. Shaughnessy, 338 U.S. 537 (1950). Rejecting a claim\nthat it should review regulations which excluded a German war bride,\nthe Court stated:\n5Neither this Office nor the Immigration and Naturalization Service (INS) is aware of any time\nw hen the pow er granted by this section, added in 19S2, has been used\n6 G iven the desperate physical condition of many o f the Haitians found on the high seas, the Coast\nG uard may, in particular situations, also be acting pursuant to its duty to render aid to distressed\npersons and vessels. 14 U.S C. \xc2\xa7\xc2\xa7 2, 88.\n\n244\n\n\x0cPetitioner contends that the 1941 Act and the regula\xc2\xad\ntions thereunder are void to the extent that they contain\nunconstitutional delegations of legislative power. But\nthere is no question of inappropriate delegation of legisla\xc2\xad\ntive power involved here. The exclusion of aliens is a\nfundamental act of sovereignty. The right to do so stems\nnot alone from legislative power but is inherent in the\nexecutive power to control the foreign affairs of the nation.\nUnited States v. Curtiss- Wright Export Corp., 299 U.S. 304;\nFong Yue Ting v. United States, 149 U.S. 698, 713. When\nCongress prescribes a procedure concerning the admissi\xc2\xad\nbility of aliens, it is not dealing alone with a legislative\npower. It is implementing an inherent executive power.\nId. at 542 (citations omitted, emphasis added). See also Savelis v.\nVlachos, 137 F. Supp. 389, 395 (E.D. Va. 1955) affd, 248 F.2d 729 (4th\n\nCir. 1957) (dictum).\nThe President, in the exercise of this inherent authority, would be\nacting to protect the United States from massive illegal immigration.\nHis power to protect the Nation or American citizens or property that\nare threatened, even where there is no express statute for him to\nexecute, was recognized in In re Neagle, 135 U.S. 1, 63-67 (1890). See\nalso In re Debs, 158 U.S. 564, 581 (1895); United States ex rel. MartinezAngosto v. Mason, 344 F.2d 673, 688 (2d Cir. 1965) (Friendly, J. concur\xc2\xad\nring); 50 U.S.C. \xc2\xa7 1541 (War Powers Resolution).7 A recent Supreme\nCourt decision points out that, in the absence of legislation, it was a\ncommon perception that the President could control the issuance of\npassports to citizens, citing the foreign relations power. Haig v. Agee,\n453 U.S. 281, 292-94 (1981).\nThe President may also act to return the boats with the flag state\xe2\x80\x99s\npermission as an exercise of his power in the field of foreign relations, a\nfield in which \xe2\x80\x9cwith its important, complicated, delicate and manifold\nproblems, the President alone has the power to speak or listen as a\nrepresentative of the nation.\xe2\x80\x9d United States v. Curtiss-Wright Export\nCorp., 299 U.S. 304, 319 (1936). See also Narenji v. Civiletti, 617 F.2d\n745, 747-48 (D.C. Cir. 1979), cert denied, 446 U.S. 957 (1980) (regula\xc2\xad\ntion of Iranian students); Chicago & Southern A ir Lines, Inc. v. Water\xc2\xad\nman S.S. Corp., 333 U.S. 103 (1948) (regulation of foreign airlines). The\nPresident\xe2\x80\x99s power is strongest where he has well recognized constitu\xc2\xad\ntional powers (foreign affairs) to which Congress has added statutory\ndelegation (8 U.S.C. \xc2\xa7\xc2\xa7 1182 (0, 1185).\n7 This Office has relied upon such inherent authority in an opinion, stating that the President could\nact to prevent airplane hijackings by placing marshals on board, even in the absence o f express\nauthority to take such preventive measures Memorandum for the Director, United States Marshals\nService, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, 2-3 (Sept\n30, 1970).\n\n245\n\n\x0c3.\nCoast Guard Authority to Enforce Haitian Law Pursuant to an\nAgreement Entered into by the Executive. The Coast Guard has submit\xc2\xad\nted a draft Agreement that would permit the Coast Guard to board\nHaitian vessels in order to determine whether any alien is committing\nan offense against Haitian emigration laws. The issue which arises is\nwhether the Executive can enter into an agreement under which the\nUnited States agrees to detain Haitians who are emigrating in violation\nof Haitian law in order to return them to Haiti. The President\xe2\x80\x99s author\xc2\xad\nity to enter into executive agreements with foreign nations may be\nexercised either under congressional authorization or the President\xe2\x80\x99s\ninherent authority.8 The President\xe2\x80\x99s power to enter into such agree\xc2\xad\nments on his own authority can arise from \xe2\x80\x9cthat control of foreign\nrelations which the Constitution vests in the President as a part of the\nExecutive function,\xe2\x80\x9d 39 Op. Att\xe2\x80\x99y Gen. 484, 486 (1940).9 The limits on\npresidential power to enter into these agreements are not settled and\nhave aroused controversy from the earliest days of our Republic.10\nWe believe that authority to enter into the Agreement is provided by\ntwo sources\xe2\x80\x94the power delegated by Congress to the President,\nthrough the Attorney General, to guard the borders, 8 U.S.C. \xc2\xa7 1103(a),\nand the President\xe2\x80\x99s authority in the field of foreign relations. The arrest\nof Haitian citizens as an aid to Haiti\xe2\x80\x99s enforcement of its emigration\nlaws will enable the President to curtail the flow of Haitians in the\nfurtherance of his \xe2\x80\x9cpower and duty to control and guard the boundaries\nand the borders of the United States against the illegal entry of aliens.\xe2\x80\x9d\nId. The breadth of the President\xe2\x80\x99s authority in the field of foreign\nrelations is extremely broad, as illustrated by the numerous executive\nagreements that have been negotiated and upheld by the courts.11 See\nUnited States v. Pink, 315 U.S. 203 (1942) (Litvinov Agreement); United\nStates v. Belmont, 301 U.S. 324 (1937) (same); Tucker v. Alexandroff,\n183 U.S. 424, 435 (1902) (Mexican/United States agreement to permit\nboth countries to cross the border in pursuit of marauding Indians);12\nDole v. Carter, 444 F. Supp. 1065, 1068-69 (D. Kansas), motion denied,\n569 F.2d 1109 (10th Cir. 1977) (return of the Crown of St. Stephen).\nAn agreement to aid the enforcement of the laws of another country\nis not without precedent. In 1891, the United States and Great Britain\nentered into an executive agreement prohibiting for one year the killing\nof seals in the Bering Sea. Modus Vivendi Respecting the Fur-Seal Fish\xc2\xad\neries in Behring Sea, 1 W. Malloy, Treaties, Conventions, International\n8 E. Corwin, T he President\xe2\x80\x99s C ontrol of Foreign Relations 116-17 (1917) (Corwin).\n9 Agreements executed by various Presidents for the settlement of claims of United States citizens\nagainst foreign governments are examples. See Dames & Moore v. Regan, 453 U.S. 654 (1981).\n10 E. Corwin, T he President, 216-233 (3d ed. 1948) (debate between Hamilton and Madison over\nthe constitutionality o f Washington\xe2\x80\x99s Proclamation of Neutrality); L. Henkin, Foreign Affairs and the\nConstitution 177 (1972) (Henkin).\n11 Henkin, supra, at 179.\n12 1 W. Malloy, Treaties, Conventions, International Acts, Protocols, and Agreements 1144 (1910)\n(Malloy).\n\n246\n\n\x0cActs, Protocols, and Agreements, 743 (1910) (Malloy). This agreement\npermitted the seizure of offending vessels and persons if \xe2\x80\x9coutside the\nordinary territorial limits of the United States,\xe2\x80\x9d by the naval authorities\nof either country. Id., Art. III. \xe2\x80\x9cThey shall be handed over as soon as\npracticable to the authorities of the nation to which they respectively\nbelong. . . . \xe2\x80\x9d Id. As there was no statutory authority for this agree\xc2\xad\nment, the President acted pursuant to his inherent authority in the field\nof foreign affairs.\nBetween 1905 and 1911, Presidents Roosevelt and Taft entered into a\nseries of executive agreements that permitted the United States to\noperate the customs administration of both Santo Domingo (now the\nDominican Republic) and Liberia.13\n[This first agreement] provided, in brief, for (1) a receiver of \xe2\x80\x98the\nrevenues of all the customs houses,\xe2\x80\x99 to be designated by the\nPresident of the United States and satisfactory to the Dominican\nPresident; (2) the deposit in a New York bank for the benefit of\ncreditors of all receipts above 45 percent, which was to be\nturned over to the Dominican Republic for the expenses of\ngovernment administration and the necessary expenses of collec\xc2\xad\ntion; and (3) the eventual distribution of the funds in the pay\xc2\xad\nment of Dominican debts.\nW. McClure, International Executive Agreements 94 (1941). A customs\nadministration in Haiti was established by treaty in 1915 but an elabo\xc2\xad\nrate series of executive agreements were signed \xe2\x80\x9cboth extending and\nterminating various phases of American intervention and assistance in\nthe financial, medical and military affairs of Haiti.\xe2\x80\x9d 14\nMany authorities have noted that a President\xe2\x80\x99s exercise of his author\xc2\xad\nity in this area is \xe2\x80\x9ca problem of practical statemanship rather than of\nConstitutional Law.\xe2\x80\x9d E. Corwin, The President\xe2\x80\x99s Control of Foreign\nRelations 120-21 (1917).15 The Supreme Court has upheld a variety of\nexecutive agreements based upon a number of theories and it is difficult\nto delineate with certainty the limits of the President\xe2\x80\x99s authority when\nhe enters into such agreements based solely on his inherent executive\nauthority. But see R eid v. Covert, 354 U.S. 1, 16-19 (1957) (agreement\ncannot deny civilian his right to a trial by jury). Because this Agree\xc2\xad\n13 1 W. Malloy, supra, at 418. See also McDougal & Lans, Treaties and Congressional-Executive or\nPresidential Agreements, 54 Yale L.J. 181, 279 (1945); N. Small, Some Presidential Interpretations of\nthe Presidency, 78-79 (1970) The arrangement was based on a fear that these countries\' debts would ^\nbe used by European countries as a grounds for military intervention.\n14 McDougal, supra, 54 Yale L.J. at 279. The final one was signed in 1934\n15Commitment o f financial resources overseas "depend[s] directly and immediately on appropria\xc2\xad\ntions from Congress. . . . While the issue of Presidentiaf power to make executive agreements or\ncommitments has no legal solution, political forces have mitigated its theoretical rigors. T he President\nhas to get along with Congress and with the Senate in particular, and he will not lightly risk\nantagonizing it by disregarding what it believes are its constitutional prerogatives." Henkin, supra, at\n183-84. See also K. Holloway, Modem Trends in Treaty Law 216-17 (1967), McClure, supra, at 330;\nRestatement (Second) of the Foreign Relations Law o f the United States \xc2\xa7 121 (1965)\n\n247\n\n\x0cment will be based both on delegated and inherent authority, we be\xc2\xad\nlieve that it is constitutional.\n4. Obligations Under the United Nations Protocol Relating to the Status\no f Refugees, Jan. 31, 1967, United Nations, Protocol, 19 U.S.T. 6223,\n\nT.I.A.S. No. 6577. Article 33 (19 U.S.T. 6276) of the Protocol, to\nwhich the United States is a party, provides that \xe2\x80\x9cNo Contracting State\nshall . . . return (\xe2\x80\x9c refouler\xe2\x80\x9d) a refugee in any manner whatsoever to the\nfrontiers of territories where his life or freedom would be threatened on\naccount of his race, religion, nationality, membership of a particular\nsocial group or political opinion.\xe2\x80\x9d Individuals who claim that they will\nbe persecuted for one of these reasons must be given an opportunity to\nsubstantiate their claims. The Protocol does not, however, mandate any\nparticular kind of procedure. We have reviewed the plan outlined in\nthe draft prepared by INS and believe that it comports with the\nProtocol.\n5. Effect o f the Foreign Assistance A ct o f 1961, 22 U.S.C. \xc2\xa7 2151-2151d\n(Supp. I l l 1979). We know of no provision of the Act that would\nprohibit the interdiction, since no foreign aid funds are being used.\n6. Formal Implementation o f the Interdiction. There are three formal\nsteps still to be taken before the interdiction can begin. The first is\nclearance of the Agreement by the Department of State. The second is\nthe signing of the Agreement by the United States and the government\nof Haiti.16 The third is the issuance of a proclamation by the President\npursuant to 8 U.S.C \xc2\xa7 1182(f)- The proclamation would contain a find\xc2\xad\ning that the entry of Haitian nationals who do not possess proper\ndocumentation for entry into the United States is detrimental to the\ninterests of the United States. The proclamation would then suspend\nthe entry of all such Haitian nationals. If a decision is made not to rely\nupon 8 U.S.C. \xc2\xa7 1182(0, no proclamation is necessary. However, the\nvalidity of the President\xe2\x80\x99s action will certainly be strengthened by\nrelying on both statutory provisions which provide support for the\ncontemplated action.\nThe Coast Guard is presently under the authority of the Department\nof Transportation. 14 U.S.C. \xc2\xa7 1. The Attorney General is in charge of\nenforcing the immigration laws. 8 U.S.C. \xc2\xa7 1103. The Coast Guard will\nbe enforcing both the immigration laws and the laws of Haiti pursuant\nto the Agreement. While a memorandum of understanding signed by\nthe Coast Guard, INS, and the Department of State would facilitate\noperations, 14 U.S.C. \xc2\xa7 141, a presidential order to the Secretary of\nTransportation to have the Coast Guard act to enforce both parts of\nthe Agreement will avoid any question about the Coast Guard\xe2\x80\x99s author\xc2\xad\nity to act.\n18 T he Agreement should be transmitted to Congress within 60 days. 1 U S.C. \xc2\xa7 112b(a) (Supp. Ill\n1979).\n\n248\n\n\x0c7.\nCoast G uard\xe2\x80\x99s Authority to Operate in Haitian Waters: Under the\nAgreement Haiti will grant the Coast Guard permission to enter its\nwaters to return Haitian nationals. The Coast Guard\xe2\x80\x99s authority to enter\nthe waters will be pursuant to the Agreement.17 By permitting the\nCoast Guard to enter its waters, Haiti is granting free passage to our\nships and crews. Sovereign nations often grant permission for the pas\xc2\xad\nsage of foreign forces. Tucker v. Alexandroff, 183 U.S. 424, 435 (1902);\nSchooner Exchange v. McFaddon, 11 U.S. 116, 139-40 (1812); 2 J.\nMoore, A Digest of International Law \xc2\xa7213 (1906). We suggest a\nmodification to the Agreement to make it clear that Haiti will not\nexercise jurisdiction over the Coast Guard ships or her crews while\nthey are in Haitian waters. Schooner Exchange, 11 U.S. at 140, 143.\nT heodore\n\nB. O l so n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n17\nIt will not be pursuant to 14 U.S.C. \xc2\xa7 89(a) because the waters of Haiti are not within the\njurisdiction of the United States. United States v. Conroy, 589 F.2d 1258, 1265 (5th Cir. 1979) Section\n89(a), however, does not limit the authonty of the Coast Guard to act pursuant to another provision\nof law\xe2\x80\x94in this case, the Agreement. 14 U.S.C. \xc2\xa7 89(c).\n\n249\n\n\x0c'