b'Presidential Power to Use the Armed Forces Abroad Without\nStatutory Authorization\nT h e P re sid e n t\xe2\x80\x99s in h eren t, co n stitu tio n al a u th o rity as C o m m an d er-in -C h ie f, his b ro a d fo r\xc2\xad\neign p o licy p o w ers, and his d u ty to take c a re th a t th e law s be faithfully ex ecu ted\ng en erally e m p o w e r him to d e p lo y th e arm ed forces a b ro ad w ith o u t a d e c la ra tio n o f\nw a r by C o n g ress o r o th e r co n g ressio n al a u th o rizatio n . A histo rical p a tte rn o f p re sid e n \xc2\xad\ntial initiativ e an d co n g ressio n al acq u iescen ce in em e rg e n c y situ atio n s callin g fo r im m e\xc2\xad\nd iate actio n , in clu d in g situ atio n s in v o lv in g rescu e an d retaliatio n , co n firm this in h eren t\np o w er, and th e c o u rts h av e g e n e ra lly d ec lin e d to re v ie w its use.\nT h e W ar P o w e rs R eso lu tio n g e n e ra lly p re c lu d e s presidential relian ce on sta tu to ry a u th o r \xc2\xad\nity fo r m ilitary actio n s cle a rly in v o lv in g hostilities, unless a sta tu te expressly au th o rizes\nsu ch actions, an d reg u lates th e P re sid e n t\xe2\x80\x99s use o f his c o n stitu tio n a l p o w e rs in this\nreg ard . In p a rtic u la r, it in tro d u c e s c o n su lta tio n an d re p o rtin g req u irem en ts in c o n n e c \xc2\xad\ntion w ith any use o f th e arm e d forces, an d req u ires th e term in a tio n o f su ch use w ithin\n60 d ay s o r w h e n e v e r C o n g ress so d irects.\nT h e term "U n ite d S tates A rm e d F o rc e s \xe2\x80\x9d in th e W a r P o w e rs R e so lu tio n d o es n o t include\nm ilitary p erso n n el d etailed to an d u n d e r th e c o n tro l o f th e C e n tra l In tellig en c e\nA g en cy . [In an o p in io n issued on O c to b e r 26, 1983, pu b lish ed as an ap p en d ix to this\no p in io n , this c o n c lu sio n is reco n sid e re d an d rev e rse d ]\nT h e term "h o stilities" in th e W ar P o w e rs R e so lu tio n d o es n ot in clu d e sp o ra d ic m ilitary\no r p aram ilita ry atta c k s o n o u r arm ed fo rces sta tio n ed ab ro ad ; fu rth e rm o re , its a p p lic a \xc2\xad\nbility req u ires an a c tiv e d ecision to p la c e fo rces in a h o stile situ atio n ra th e r th a n th eir\nsim ply actin g in self-defense.\nT h e req u irem en t o f co n su lta tio n in the W a r P o w e rs R e so lu tio n is n ot on its face u n c o n sti\xc2\xad\ntu tio n al, th o u g h it m ay, if stric tly c o n stru e d , raise c o n stitu tio n al questions.\nT h e p ro v isio n in th e W a r P o w e rs R e so lu tio n p erm ittin g C o n g re ss to req u ire rem o v al o f\no u r arm ed fo rces in p a rtic u la r cases by passage o f a c o n c u rre n t re so lu tio n n ot p resen ted\nto th e P resid en t is a prima facie v io latio n o f A rtic le I, \xc2\xa7 7 o f th e C o n stitu tio n .\n\nFebruary 12, 1980\nMEMORANDUM OPINION FOR TH E ATTORNEY G E N ER A L\nThis responds to your request for our review of certain questions\nregarding the effect of the War Powers Resolution on the President\xe2\x80\x99s\npower to use military force without special congressional authorization\nand related issues. We have considered the President\xe2\x80\x99s existing power\nto employ the armed forces in any of three distinct kinds of operations:\n(1) deployment abroad at some risk of engagement\xe2\x80\x94for example, the\ncurrent presence of the fleet in the Persian G ulf region; (2) a military\nexpedition to rescue the hostages or to retaliate against Iran if the\nhostages are harmed; (3) an attempt to repel an assault that\n185\n\n\x0cthreatens our vital interests in that region. We believe that the President\nhas constitutional authority to order all of the foregoing operations.\nWe also conclude that the War Powers Resolution, 50 U.S.C.\n\xc2\xa7\xc2\xa7 1541-1548, has neither the purpose nor the effect of modifying the\nPresident\xe2\x80\x99s power in this regard. The Resolution does, however, impose\nprocedural requirements of consultation and reporting on certain presi\xc2\xad\ndential actions, which we summarize. The Resolution also provides for\nthe termination of the use of the armed forces in hostilities within 60\ndays or sooner if directed by a concurrent resolution of Congress. We\nbelieve that Congress may terminate presidentially initiated hostilities\nthrough the enactment of legislation, but that it cannot do so by means\nof a legislative veto device such as a concurrent resolution.\nI. The President\xe2\x80\x99s Constitutional Authority to Employ the Armed Forces\n\nThe centrally relevant constitutional provisions are Article II, \xc2\xa7 2,\nwhich declares that \xe2\x80\x9cthe President shall be Commander in Chief of the\nArmy and Navy of the United States,\xe2\x80\x9d and Article I, \xc2\xa7 8, which grants\nCongress the power \xe2\x80\x9cTo declare W ar.\xe2\x80\x9d Early in our constitutional\nhistory, it perhaps could have been successfully argued that the Fram\xc2\xad\ners intended to confine the President to directing the military forces in\nwars declared by Congress.1 Even then, however, it was clear that the\nFramers contemplated that the President might use force to repel\nsudden invasions or rebellions without first seeking congressional ap\xc2\xad\nproval. 2\nIn addition to the Commander-in-Chief Clause, the President\xe2\x80\x99s broad\nforeign policy powers support deployment of the armed forces abroad.3\nThe President also derives authority from his duty to \xe2\x80\x9ctake Care that\nthe Laws be faithfully executed,\xe2\x80\x9d 4 for both treaties and customary\ninternational law are part of our law and Presidents have repeatedly\nasserted authority to enforce our international obligations 5 even when\nCongress has not enacted implementing legislation.\n1H am ilton, in T h e Federalist No. 69, disparaged the P resident\xe2\x80\x99s pow er as that o f "first G eneral and\nA dm iral\xe2\x80\x99\' o f the N ation, co n trastin g it to that o f the British king, w ho could declare w ar and raise and\nregulate armies.\n2See M. Farrand, 2 T h e R ecords o f the F ed eral C onvention o f 1787, 318-19 (1911). O ther\npresidential actions, such as pro tectin g A m erican lives and pro p erty abroad and defending our allies,\nw ere not d irectly considered by the Fram ers. T his is understandable: the m ilitary needs o f the 18th\ncentu ry probably did not require constitutional au th o rity for im m ediate presidential action in case of\nan attack on an ally.\n3See generally United States v. Curtiss- Wright Export Corp., 299 U.S. 304 (1936).\n4See In re Neagle, 135 U.S. 1 (1890) (broad view o f inherent presidential pow er to enforce\nconstitutional as well as statu to ry provisions).\n5 It should be observed, how ever, that treaties may not modify the basic allocation o f pow ers in our\nconstitutional schem e. R eid v. Covert, 354 U.S. 1 (1957). M utual defense treaties are generally not self\xc2\xad\nexecuting regarding the internal processes o f the signatory pow ers. Similarly, custom ary international\nlaw, w hich includes au th o rity for reasonable reprisals in response to another c o u n try \xe2\x80\x99s breach of\ninternational obligation, probably does not confer au th o rity on the President beyond the w arrant of\nnecessity.\n\n186\n\n\x0cWe believe that the substantive constitutional limits on the exercise of\nthese inherent powers by the President are, at any particular time, a\nfunction of historical practice and the political relationship between the\nPresident and Congress. Our history is replete with instances of presi\xc2\xad\ndential uses of military force abroad in the absence of prior congres\xc2\xad\nsional approval. This pattern of presidential initiative and congressional\nacquiescence may be said to reflect the implicit advantage held by the\nexecutive over the legislature under our constitutional scheme in situa\xc2\xad\ntions calling for immediate action. Thus, constitutional practice over\ntwo centuries, supported by the nature of the functions exercised and\nby the few legal benchmarks that exist, evidences the existence of broad\nconstitutional pow er.6\nThe power to deploy troops abroad without the initiation of hostil\xc2\xad\nities is the most clearly established exercise of the President\xe2\x80\x99s general\npower as a matter of historical practice. Examples of such actions in\nthe past include the use of the Navy to \xe2\x80\x9copen up\xe2\x80\x9d Japan, and President\nJohnson\xe2\x80\x99s introduction of the armed forces into the Dominican Repub\xc2\xad\nlic in 1965 to forestall revolution.\nOperations of rescue and retaliation have also been ordered by the\nPresident without congressional authorization even when they involved\nhostilities. Presidents have repeatedly employed troops abroad in de\xc2\xad\nfense of American lives and property. A famous early example is\nPresident Jefferson\xe2\x80\x99s use of the Navy to suppress the Barbary pirates.\nOther instances abound, including protection of American citizens in\nChina during the Boxer Rebellion in 1900, and the use of troops in 1916\nto pursue Pancho Villa across the Mexican border. Recent examples\ninclude the Danang sealift during the collapse of Vietnam\xe2\x80\x99s defenses\n(1975); the evacuation of Phnom Penh (Cambodia, 1975); the evacu\xc2\xad\nation of Saigon (1975); the M ayaguez incident (1975); evacuation of\ncivilians during the civil war in Lebanon (1976); and the dispatch of\nforces to aid American victims in Guyana (1978).\nThis history reveals that purposes of protecting American lives and\nproperty and retaliating against those causing injury to them are often\nintertwined. In D urand v. Hollins, 8 F. Cas. 111 (No. 4186)\n(C.C.S.D.N.Y. 1860), the court upheld the legality of the bombardment\nof a Nicaraguan town which was ordered because the local authorities\nrefused to pay reparations for an attack by a mob on the United States\nConsul. Policies of deterrence seem to have eroded any clear distinc\xc2\xad\ntion between cases of rescue and retaliation.\nThus, there is much historical support for the power of the President\nto deploy troops without initiating hostilities and to direct rescue and\nretaliation operations even where hostilities are a certainty. There is\n6 In o th er contexts, the Suprem e C ourt has recognized the validity o f longstanding presidential\npractices never expressly authorized by Congress but arguably ratified by its silence. See United States\nv. Midwest O il Co., 236 U.S. 459 (1915) (w ithdraw al o f public lands from private acquisition).\n\n187\n\n\x0cprecedent as well for the commitment of United States armed forces,\nwithout prior congressional approval or declaration of war, to aid an\nally in repelling an armed invasion, in President Truman\xe2\x80\x99s response to\nthe North Korean invasion of South K orea.7 But clearly such a re\xc2\xad\nsponse cannot be sustained over time without the acquiescence, indeed\nthe approval, of Congress, for it is Congress that must appropriate the\nmoney to fight a war or a police action. While Presidents have exer\xc2\xad\ncised their authority to introduce troops into Korea and Vietnam 8\nwithout prior congressional authorization, those troops remained only\nwith the approval of Congress.\nII. Judicial Review of the President\xe2\x80\x99s Exercise of Constitutional Power\n\nIn the only major case dealing with the role of the courts with\nregard to this general subject, the Supreme Court upheld presidential\npower to act in an emergency without prior congressional authority. In\nthe Prize Cases, 67 U.S. 635 (1863), the Court upheld President\nLincoln\xe2\x80\x99s blockade of Southern ports following the attack on Fort\nSumter. The Court thought that particular uses of inherent executive\npower to repel invasion or rebellion were \xe2\x80\x9cpolitical questions\xe2\x80\x9d not\nsubject to judicial review: \xe2\x80\x9cThis Court must be governed by the deci\xc2\xad\nsions and acts of the political department of the Government to which\nthis power was entrusted.\xe2\x80\x9d (Id. at 670). The Court\xe2\x80\x99s unwillingness to\nreview the need for presidential action in a particular instance in the\nPrize Cases or since has left the field to the President and Congress;\nmuch has depended on presidential restraint in responding to provoca\xc2\xad\ntion, and on congressional willingness to support his initiatives by\nraising and funding armies.\nMore recently, the courts have applied the rationale of the Prize\nCases to avoid judicial review of the constitutionality of the President\xe2\x80\x99s\nactions with regard to the Vietnam conflict.9 Although the Supreme\nCourt did not hear argument in the case, we believe some significance\nmay be attached to the Court\xe2\x80\x99s summary affirmance of a three-judge\ncourt\xe2\x80\x99s decision that the constitutionality of the government\xe2\x80\x99s involve\xc2\xad\nment in that conflict was a political question and thus unsuitable for\njudicial resolution. Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa. 1972),\na ffd , 411 U.S. 911 (1973).\n\n1 A lth o u g h support for this intro d u ctio n o f o u r arm ed forces into a \xe2\x80\x9c h o t\xe2\x80\x9d w ar could be found in the\nU .N . C h arte r and a S ecurity C ouncil resolution, th e fact rem ains that this com m itm ent o f substantial\nforces occu rred w ith o u t congressional approval.\n8 T h e substantia] A m erican m ilitary presence in V ietnam before the T onkin G u lf R esolution was\nknow n to and supported by C ongress.\n9See, e.g., Mora v. M cN am ara, 387 F.2d 862 (D .C . C ir.), cert, denied 389 U.S. 934 (1967); M cArthur\nv. Clifford, 393 U.S. 1002 (1968); Massachusetts v. Laird, 400 U.S. 886 (1970).\n\n188\n\n\x0cIII. The President\xe2\x80\x99s Statutory Powers\nCongress has restricted the President\xe2\x80\x99s ability to rely on statutory\nauthority for the use of armed force abroad by its provision in the War\nPowers Resolution that authority to introduce the armed forces into\nhostilities or into situations \xe2\x80\x9cwherein involvement in hostilities is clearly\nindicated by the circumstances\xe2\x80\x9d is not to be inferred from any statutory\nprovision not specifically authorizing the use of troops and referring to\nthe War Powers Resolution. 50 U.S.C. \xc2\xa7 1547. Thus, the President may\nnot rely on statutory authority for military actions clearly involving\nhostilities unless the statute expressly authorizes such actions.\nNevertheless, it may be possible for the President to draw authority\nfor some actions not involving the use of the armed forces in actual or\nimminent hostilities from the provisions of an 1868 statute, now 22\nU.S.C. \xc2\xa7 1732:\nWhenever it is made known to the President that any\ncitizen of the United States has been unjustly deprived of\nhis liberty by or under the authority of any foreign gov\xc2\xad\nernment, it shall be the duty of the President forthwith to\ndemand of that government the reasons of such imprison\xc2\xad\nment; and if it appears to be wrongful and in violation of\nthe rights of American citizenship, the President shall\nforthwith demand the release of such citizen, and if the\nrelease so demanded is unreasonably delayed or refused,\nthe President shall use such means, not amounting to acts\nof war, as he may think necessary and proper to obtain or\neffectuate the release; and all the facts and proceedings\nrelative thereto shall as soon as practicable be communi\xc2\xad\ncated by the President to Congress.\nWe are unaware of any instances in which this provision has been\ninvoked. It was passed in response to a dispute with Great Britain after\nthe Civil War, in which that nation was trying its former subjects, who\nhad become naturalized Americans, for treason. The House version of\nthe bill, which would have authorized the President to suspend all\ncommerce with the offending nation and to round up its citizens found\nin this country as hostages, was replaced by the present language which\nwas in the Senate bill. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445-46\n(1868). It is not clear whether this change was meant to restrict the\nPresident to measures less drastic than those specified in the House bill.\nIt is also not clear what Congress meant by the phrase \xe2\x80\x9cnot amounting\nto acts of war.\xe2\x80\x9d At least Congress did not seem to be attempting to\nlimit the President\xe2\x80\x99s constitutional powers.\n\n189\n\n\x0cIV. The War Powers Resolution\n\nThe War Powers Resolution, 50 U.S.C. \xc2\xa7\xc2\xa7 1541-48, begins with a\nstatement of purpose and policy that seems designed to limit presiden\xc2\xad\ntial use of armed forces in hostilities to situations involving a declara\xc2\xad\ntion of war, specific statutory authorization, or an attack on the United\nStates, its possessions, or its armed forces. This policy statement, how\xc2\xad\never, is not to be viewed as limiting presidential action in any substan\xc2\xad\ntive manner. That much is clear from the conference report, which\nstates that subsequent portions of the Resolution are not dependent on\nthe policy statement,10 and from its construction by the President since\nits enactment.\nThe important provisions of the Resolution concern consultation and\nreporting requirements and termination of the involvement of the\narmed forces in hostilities. The Resolution requires that the President\nconsult with Congress \xe2\x80\x9cin every possible instance\xe2\x80\x9d before introducing\nthe armed forces into hostilities, and regularly thereafter. 50 U.S.C.\n\xc2\xa7 1542.\nThe reporting requirements apply not only when hostilities are taking\nplace or are imminent, but also when armed forces are sent to a foreign\ncountry equipped for combat. 50 U.S.C. \xc2\xa7 1543(a)(2), (3). The report\nmust be filed within 48 hours from the time that they are introduced\ninto the area triggering the requirement, and not from the time that the\ndecision to dispatch them is m ade.11 The report must include:\n(A) The circumstances necessitating the introduction of\nUnited States Armed Forces;\n(B) the constitutional and legislative authority under\nwhich such introduction took place; and\n(C) the estimated scope and duration of the hostilities or\ninvolvement.\n50 U.S.C. \xc2\xa7 1543(a)(3). Reports which have been filed in the past have\nbeen brief and to the point. The reference to legal authority has been\none sentence, referring to the President\xe2\x80\x99s constitutional power as\nCommander-in-Chief and Chief Executive.12\ni0See H .R . Rep. No. 547, 93d C ong., 1st Sess. 8 (1973). Section 1547(d)(1) states that the Resolution\nis not intended to alter the constitutional au th o rity o f the President. Fisher. A Political C ontext fo r\nLegislative Vetos, 93 Political Science Q uarterly 241, 246 (1978), explains that because the tw o H ouses\ncould not agree on the P resident\xe2\x80\x99s responsibilities under A rticle II, C ongress fell back on purely\nprocedural controls.\n11See generally Franck, A fter the Fall: The N ew Procedural Framework fo r Congressional Control over\nthe War Power. 71 Am. J. In l\xe2\x80\x99l L. 605, 615 (1977).\n12See War Powers: A Test o f Compliance Relative to the Danang Sealift, the Evacuation o f Phnom\nPenh, the Evacuation o f Saigon, and the Mayaguez Incident, Hearings before the Subcom mittee on Int\'l\nSecurity and Scientific Affairs o f the House Comm, on In t\'l Relations, 94th C ong., 1st Sess. 75 (M aya\xc2\xad\nguez) (1975) (hereafter War Powers: A Test o f Compliance): The War Powers Resolution. Relevant\nDocuments. Correspondence, Reports, Subcom m . on In t\xe2\x80\x99l Security and Scientific A ffairs, H ouse Comm,\non In t\xe2\x80\x99l Relations, 94th C ong., 1st Sess. 40 (D anang); 42 (Phnom Penh); 45 (Mayaguez) (Com m . Print\n1976).\n\n190\n\n\x0cThe Resolution requires the President to terminate any use of the\narmed forces in hostilities after 60 days unless Congress has authorized\nhis action.13 It also requires termination whenever Congress so directs\nby concurrent resolution.14\nAs enacted, the ambiguous language of the Resolution raises several\nissues of practical importance regarding the scope of its coverage as\nwell as questions of constitutional magnitude. We shall discuss first\nseveral issues related to the scope of its coverage and then discuss\nseveral constitutional issues it raises.\nA threshold question is whether the Resolution\xe2\x80\x99s use of the term\n\xe2\x80\x9cUnited States Armed Forces\xe2\x80\x9d was intended to reach deployment or\nuse by the President of personnel other than members of the Army, Air\nForce, Marine Corps, Navy, or Coast Guard functioning under the\ncontrol of the Secretary of Defense and the Joint Chiefs of Staff. For\nexample, does it extend to military personnel detailed to and under the\ncontrol of the Central Intelligence Agency (CIA), CIA agents them\xc2\xad\nselves, or other individuals contracting to perform services for the CIA\nor the Department of Defense? We believe that none of these personnel\nare covered by the Resolution.*\nThe provision most closely on point is \xc2\xa7 1547(c), which defines the\nterm \xe2\x80\x9cintroduction of United States Armed Forces\xe2\x80\x9d to include \xe2\x80\x9cthe\nassignment of members of such armed forces to command, coordinate,\nparticipate in the movement of, or accompany the regular or irregular\nmilitary forces of any foreign country\xe2\x80\x9d in actual or imminent hostilities.\nThis provision appears to be intended to identify activities subject to\nthe Resolution, and not the identity of persons constituting \xe2\x80\x9cmembers\nof such armed forces.\xe2\x80\x9d It could be argued that anyone officially a\nmember of the armed forces of this country, although on temporary\ndetail to a civilian agency, is within this provision and therefore cov\xc2\xad\nered by the Resolution. The legislative history of the Resolution, how \xc2\xad\never, persuades us to take a contrary view. In the Senate, where\n\xc2\xa7 1547(c) originated, Senator Eagleton introduced the following\namendment:\nAny person employed by, under contract to, or under the\ndirection of any department or agency of the United\nStates Government who is either (a) actively engaged in\nhostilities in any foreign country; or (b) advising any\nregular or irregular military forces engaged in hostilities\nin any foreign country shall be deemed to be a member of\n13 50 U.S.C. \xc2\xa7 1544(b). T h e re are exceptions to the 60-day period if C ongress extends the period or\nis unable to meet, o r if the President certifies th at m ore time is needed to extract the forces.\nM50 U .S .C \xc2\xa7 1544(c).\n\xe2\x80\xa2 N o t e : This conclusion respecting the applicability o f the W ar Pow ers R esolution to m ilitary\npersonnel detailed to the C entral Intelligence A gency w as reconsidered and reversed in an opinion\ndated O cto b er 26. 1983. w hich appears as an appendix to this opinion at p. 197 infra. Ed.\n\n191\n\n\x0cthe Armed Forces of the United States for the purposes\nof this Act.\nHe explained that it was intended to cover CIA paramilitary oper\xc2\xad\nations involving persons who might be military officers under contract\nto the CIA. 119 Cong. Rec. 25,079-83 (1973). He recognized that\nwithout this amendment the Resolution as drafted would not cover the\nactivities of such personnel, and argued that it should, citing CIA\nactivities in Laos as leading to America\xe2\x80\x99s Indo-China involvement.\nSenators Muskie and Javits opposed the amendment, principally for\nreasons of committee jurisdiction. They argued that if the Resolution\nwere extended to cover the CIA, its chances to escape presidential veto\nmight be jeopardized, and that the matter should be considered pursu\xc2\xad\nant to proposed legislation to govern the CIA. Senator Javits also\nargued that the amendment was overbroad, since it would include\nforeign nationals contracting with the CIA. He argued that CIA activi\xc2\xad\nties should not be within the Resolution, because the CIA lacks the\nappreciable armed force that can commit the Nation to war.\nSenator Fulbright came to Senator Eagleton\xe2\x80\x99s defense, arguing that the\namendment, applying to the CIA and D O D civilians alike, would avoid\ncircumvention of the Resolution. Id. at 25,083-84. No one suggested\nthat the Resolution would apply to anyone other than military person\xc2\xad\nnel under Department of Defense control unless the amendment passed.\nThe amendment was defeated.15\nIn the House of Representatives, Congressman Badillo asked Con\xc2\xad\ngressman Zablocki, the manager of the bill, whether he would support\nin the conference committee a Senate provision that would include the\nCIA within the bill when it carried out military functions. Congressman\nZablocki replied that he would support the Eagleton amendment if it\npassed the Senate. 119 Cong. Rec. 24,697 (1973).\nAnother provision o f the Resolution that had its source in the House\nis consistent with the view that the Resolution was not intended to\napply to CIA paramilitary activities. The reporting requirements of\n\xc2\xa7 1543(a)(2) apply when the armed forces are introduced \xe2\x80\x9cinto the\nterritory, air space or waters of a foreign nation, while equipped for\ncombat . . . .\xe2\x80\x9d It is clear from H.R. Rep. No. 287, 93d Cong., 1st Sess.\n8 (1973), that this provision was using the term \xe2\x80\x9carmed forces\xe2\x80\x9d to mean\nsignificant bodies of military personnel:\nA report would be required any time combat military\nforces were sent to another nation to alter or preserve the\nexisting political status quo or to make the U.S. presence\nfelt. Thus, for example, the dispatch o f Marines to Thai\xc2\xad\n15 It is an accepted canon o f statu to ry con stru ctio n that the rejection o f an am endm ent indicates that\nthe bill is not m eant to include the provisions in the failed am endm ent. See, e.g., Norwegian Nitrogen\nProducts Co. v. United States, 288 U.S. 294, 306 (1933).\n\n192\n\n\x0cland in 1962 and the quarantine of Cuba in the same year\nwould have required Presidential reports.\nA companion provision reinforces the view that the Resolution applies\nonly to significant bodies of military personnel. The House report goes\non to discuss \xc2\xa7 1543(a)(3), which requires a report when the number of\narmed forces equipped for combat is substantially enlarged in a foreign\nnation. For examples of substantial increases in combat troops, the\nreport gives the dispatch of 25% more troops to an existing station, or\nPresident Kennedy\xe2\x80\x99s increase in U.S. military advisers in Vietnam from\n700 to 16,000 in 1962.\nThe second threshold question raised by the War Powers Resolution\nregards the meaning of the word \xe2\x80\x9chostilities\xe2\x80\x9d as used in \xc2\xa7 1543(a)(1). In\nthe 1975 hearings on executive compliance with the Resolution, Chair\xc2\xad\nman Zablocki of the Subcommittee on International Security and Scien\xc2\xad\ntific Affairs drew the Legal Adviser\xe2\x80\x99s attention to a discussion of\n\xe2\x80\x9chostilities\xe2\x80\x9d in the House report on the Resolution:\nThe word hostilities was substituted for the phrase\narm ed conflict during the subcommittee drafting process\nbecause it was considered to be somewhat broader in\nscope. In addition to a situation in which fighting actually\nhas begun, hostilities also encompasses a state of confron\xc2\xad\ntation in which no shots have been fired but where there\nis a clear and present danger of armed conflict. \xe2\x80\x9cIm m inent\nhostilities" denotes a situation in which there is a clear\npotential either for such a state of confrontation or for\nactual armed conflict.\nH.R. Rep. No. 287, 93d Cong., 1st Sess. 7 (1973) (emphasis added).\nChairman Zablocki then requested the views of the Departments of\nState and Defense regarding the Executive\xe2\x80\x99s interpretation of the term\n\xe2\x80\x9chostilities\xe2\x80\x9d in view of the language quoted above. Those Departments\nresponded in a letter to the Chairman dated June 5, 1975, reprinted in\nWar Powers: A Test o f Compliance at 38-40. After first noting that\n\xe2\x80\x9chostilities\xe2\x80\x9d is \xe2\x80\x9cdefinable in a meaningful way only in the context of an\nactual set of facts,\xe2\x80\x9d the letter went on to state that, as applied by the\nExecutive, the term included:\na situation in which units of the U.S. armed forces are\nactively engaged in exchanges of fire with opposing units\nof hostile forces, and \xe2\x80\x9cimminent hostilities\xe2\x80\x9d was consid\xc2\xad\nered to mean a situation in which there is a serious risk\nfrom hostile fire to the safety of United States forces. In\nour view, neither term necessarily encompasses irregular\nor infrequent violence which may occur in a particular\narea.\nId. at 39.\n\n193\n\n\x0cWe agree that the term \xe2\x80\x9chostilities\xe2\x80\x9d should not be read necessarily to\ninclude sporadic military or paramilitary attacks on our armed forces\nstationed abroad. Such situations do not generally involve the full\nmilitary engagements with which the Resolution is primarily con\xc2\xad\ncerned. For the same reason, we also believe that as a general matter\nthe presence of our armed forces in a foreign country whose govern\xc2\xad\nment comes under attack by \xe2\x80\x9cguerrilla\xe2\x80\x9d operations would not trigger\nthe reporting provisions of the War Powers Resolution unless our\narmed forces were assigned to \xe2\x80\x9ccommand, coordinate, participate in the\nmovement of, or accompany\xe2\x80\x9d the forces of the host government in\noperations against such guerrilla operations.16 50 U.S.C. \xc2\xa7 1547(c).\nFurthermore, if our armed forces otherwise lawfully stationed in a\nforeign country were fired upon and defended themselves, we doubt\nthat such engagement in hostilities would be covered by the consulta\xc2\xad\ntion and reporting provisions of the War Powers Resolution. The\nstructure and thrust of those provisions is the \xe2\x80\x9cintroduction\xe2\x80\x9d of our\narmed forces into such a situation and not the fact that those forces\nmay be engaged in hostilities. It seems fair to read \xe2\x80\x9cintroduction\xe2\x80\x9d to\nrequire an active decision to place forces in a hostile situation rather\nthan their simply acting in self-defense.17\nA final issue of statutory construction involves interpretation of the\nrequirement for consultation with \xe2\x80\x9cCongress.\xe2\x80\x9d 18 As a practical matter,\nconsultation with more than a select group of congressional leaders has\nnever been attempted. The Legal Adviser of the State Department has\nargued for this Administration, correctly in our view, that there are\npractical limits to the consultation requirement; he has said that mean\xc2\xad\ningful consultations with \xe2\x80\x9can appropriate group of congressional repre\xc2\xad\nsentatives should be possible.\xe2\x80\x9d 19 During the M ayaguez incident about\nten House and eleven Senate Members were contacted concerning the\nmeasures to be taken by the President.20\nIn requiring consultation in \xe2\x80\x9cevery possible instance,\xe2\x80\x9d Congress\nmeant to be firm yet flexible. H. R. Rep. No. 287, 93d Cong., 1st Sess.\n6 (1973). The House report continued:\nThe use of the word \xe2\x80\x9cevery\xe2\x80\x9d reflects the committee\xe2\x80\x99s\nbelief that such consultation prior to the commitment of\narmed forces should be inclusive. In other words, it\n,6W e believe that the definition o f "in troduction o f U nited States A rm ed Forces\'* in \xc2\xa7 1547(c)\nsupports the proposition that mem bers o f the arm ed forces stationed in a foreign country for purposes\no f training o r advising m ilitary forces o f the host governm ent are not generally to be view ed as\nsubject to the W ar Pow ers Resolution.\n17 In contrast, as passed by the Senate, the bill w ould have required a report w henever o u r arm ed\nforces are \xe2\x80\x9cengaged in hostilities." S. 440, 93d Cong., 1st Sess. \xc2\xa7 4 , 119 C ong. Rec. 25,119 (1973).\n18T his replaced an earlier version w hich m erely required consultation w ith the leadership and\nappropriate com m ittees o f C ongress. H. R. Conf. Rep. No. 547, 93d C ong., 1st Sess. 8 (1973); H. R.\nRep. No. 287, 93d Cong., 1st Sess. 6 (1973).\n19Statem ent o f State D epartm ent Legal A dviser H ansell before the Senate Foreign Relations\nC om m ittee, reprinted in State D epartm ent Bulletin, A ugust 29, 1977, at 291-92.\n20T estim ony o f State D epartm ent Legal A dviser Leigh in War Powers: A Test o f Compliance at 78.\n\n194\n\n\x0cshould apply to extraordinary and emergency circum\xc2\xad\nstances\xe2\x80\x94even when it is not possible to get formal con\xc2\xad\ngressional approval in the form of a declaration of war or\nother specific authorization.\nAt the same time, through use of the word \xe2\x80\x9cpossible\xe2\x80\x9d it\nrecognizes that a situation may be so dire, e.g., hostile\nmissile attack underway, and require such instantaneous\naction that no prior consultation will be possible.\nThe State Department Legal Adviser, again speaking for this Adminis\xc2\xad\ntration, has pointed out the problem that exists in emergencies, noting\nthat \xe2\x80\x9c[B]y their very nature some emergencies may preclude opportu\xc2\xad\nnity for legislative debate prior to involvement of the Armed Forces in\nhostile or potentially hostile situations.\xe2\x80\x9d He recognized, however, that\nconsultation may be had \xe2\x80\x9cin the great majority of cases.\xe2\x80\x9d 21\nThere may be constitutional considerations involved in the consulta\xc2\xad\ntion requirement. When President Nixon vetoed the Resolution, he did\nnot suggest that either the reporting or consultation requirements were\nunconstitutional. Department of State Bulletin, November 26, 1973, at\n662-64. No Administration has taken the position that these require\xc2\xad\nments are unconstitutional on their face. Nevertheless, there may be\napplications which raise constitutional questions. This view was stated\nsuccinctly by State Department Legal Adviser Leigh:\nSection 3 of the War Powers Resolution has, in my\nview, been drafted so as not to hamper the President\xe2\x80\x99s\nexercise of his constitutional authority. Thus, Section 3\nleaves it to the President to determine precisely how\nconsultation is to be carried out. In so doing the President\nmay, I am sure, take into account the effect various possi\xc2\xad\nble modes of consultation may have upon the risk of a\nbreach in security. Whether he could on security grounds\nalone dispense entirely with \xe2\x80\x9cconsultation\xe2\x80\x9d when exercis\xc2\xad\ning an independent constitutional power, presents a ques\xc2\xad\ntion of constitutional and legislative interpretation to\nwhich there is no easy answer. In my personal view, the\nresolution contemplates at least some consultation in\nevery case irrespective of security considerations unless\nthe President determines that such consultation is incon\xc2\xad\nsistent with his constitutional obligation. In the latter\nevent the President\xe2\x80\x99s decision could not as a practical\nmatter be challenged but he would have to be prepared to\naccept the political consequences of such action, which\nmight be heavy.\n21 Statem ent o f Legal A dviser Hansell, id.\n\n195\n\n\x0cWar Powers: A Test o f Compliance at 100. Other constitutional issues\n\nraised by the Resolution concern the provisions terminating the use of\nour armed forces either through the passage of time (60 days) or the\npassage of a concurrent resolution.\nWe believe that Congress may, as a general constitutional matter,\nplace a 60-day limit on the use of our armed forces as required by the\nprovisions of \xc2\xa7 1544(b) of the Resolution. The Resolution gives the\nPresident the flexibility to extend that deadline for up to 30 days in\ncases of \xe2\x80\x9cunavoidable military necessity.\xe2\x80\x9d This flexibility is, we believe,\nsufficient under any scenarios we can hypothesize to preserve his con\xc2\xad\nstitutional function as Commander-in-Chief. The practical effect of the\n60-day limit is to shift the burden to the President to convince the\nCongress of the continuing need for the use of our armed forces\nabroad. We cannot say that placing that burden on the President un\xc2\xad\nconstitutionally intrudes upon his executive powers.\nFinally, Congress may regulate the President\xe2\x80\x99s exercise of his inher\xc2\xad\nent powers by imposing limits by statute. We do not believe that\nCongress may, on a case-by-case basis, require the removal of our\narmed forces by passage of a concurrent resolution which is not submit\xc2\xad\nted to the President for his approval or disapproval pursuant to Article\nI, \xc2\xa7 7 of the Constitution.\nJo\n\nhn\n\nM.\n\nH\n\narm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n196\n\n\x0cA PPEND IX\n\nWar Powers Resolution: Detailing of\nMilitary Personnel to the CIA\nOctober 26, 1983\nMEM ORANDUM O PIN IO N FOR\nTH E DEPUTY ATTORNEY G E N ER A L\nThis responds to your inquiry whether a Central Intelligence Agency\n(CIA) operation utilizing military equipment and military personnel\ndetailed to the CIA would require compliance with the War Powers\nResolution. In responding to this inquiry, this Office has found it\nnecessary to re-examine and revise a broad conclusion expressed by this\nOffice in its February 12, 1980 memorandum, the \xe2\x80\x9cHarmon Memoran\xc2\xad\ndum,\xe2\x80\x9d 1 that \xe2\x80\x9cmilitary personnel detailed to and under the control of the\nCIA . . .\xe2\x80\x9d would not be covered by the W ar Powers Resolution were\nthey to be deployed into hostilities or a situation otherwise triggering\nthat Resolution.\nThe heart of the argument in the Harmon Memorandum is the\nessentially negative inference drawn from the Senate\xe2\x80\x99s rejection of the\nso-called \xe2\x80\x9cEagleton amendment,\xe2\x80\x9d 2 which is reprinted on page 8 of that\nmemorandum. The Eagleton amendment would have supplemented\n\xc2\xa7 8(c) o f the War Powers Resolution regarding the definition of the\nterm \xe2\x80\x9cintroduction of United States Armed Forces.\xe2\x80\x9d As enacted, \xc2\xa7 8(c)\nnow provides:\nFor purposes of this chapter, the term \xe2\x80\x9cintroduction of\nUnited States Armed Forces\xe2\x80\x9d includes the assignment of\nmembers of such armed forces to command, coordinate,\n1M em orandum for the A ttorney G eneral entitled \xe2\x80\x9c Presidential P ow er to Use the A rm ed Forces\nA broad W ithout S tatu to ry A u th o rizatio n " from Jo h n M. H arm on, A ssistant A tto rn e y G eneral, O ffice\no f Legal C ounsel, Feb. 12, 1980. T h e occasion for this m em orandum w as planning relative to the\nholding by Iran o f A m erican hostages and a range o f potential A m erican responses to that situation\nincluding a possible rescue attem pt. T he m em orandum was general, how ever, and did not focus on a\nspecific factual situation. Particularly, the H arm on M em orandum \'s com m ents concerning a C IA\noperation involving detailed m ilitary personnel w as a part o f a general discussion and was not in\nresponse to a precise fact-specific question.\n2 S enator Eagleton introduced several am endm ents to the W ar Pow ers Resolution. Som e w ere\nadopted. This particular am endm ent w as enum erated as am endm ent No. 366, and is set out in 119\nC ong. R ec. 25,079 (1973).\n\n197\n\n\x0cparticipate in the movement of, or accompany the regular\nor irregular military forces of any foreign country or\ngovernment when such military forces are engaged, or\nthere exists an imminent threat that such forces will\nbecome engaged, in hostilities.\n50 U.S.C. \xc2\xa7 1547(c). Senator Eagleton urged adding the following sen\xc2\xad\ntence:\nAny person employed by, under contract to, or under the\ndirection of any department or agency of the United\nStates Government who is either (a) actively engaged in\nhostilities in any foreign country; or (b) advising any\nregular or irregular military forces engaged in hostilities\nin any foreign country shall be deemed to be a member of\nthe Armed Forces of the United States for the purposes\nof this Act.\n119 Cong. Rec. 25,079 (1973).\nWe observe at the outset that the Eagleton amendment on its face\ndoes not suggest that it deals with a situation in which uniformed\npersonnel would be detailed to the CIA; indeed, what it would have\ndone on its face was to provide that all government employees under\nthe direction of any department or agency either engaged in hostilities\nin any foreign country or advising any regular or irregular military\nforces engaged in hostilities would be deemed to be a member of the\narmed forces for purposes of the War Powers Resolution. In other\nwords, military or paramilitary activities by the CIA would have trig\xc2\xad\ngered the War Powers Resolution irrespective of whether the activities\nwere performed by military personnel, civilian employees, or persons\nunder contract to or under the control of the CIA.\nThe sentences in the Harmon memorandum that follow the quotation\nof the Eagleton amendment read as follows:\nHe [Senator Eagleton] explained that it [his amendment]\nwas intended to cover CIA paramilitary operations in\xc2\xad\nvolving persons who might be military officers under\ncontract to the CIA. 119 Cong. Rec. 25079-83 (1973). He\nrecognized that without this amendment the Resolution as\ndrafted would not cover the activities of such personnel,\nand argued that it should, citing CIA activities in Laos as\nleading to America\xe2\x80\x99s Indo-China involvement.\nWe have carefully reviewed not only the remarks of Senator\nEagleton contained in the cited pages of the Congressional Record, but\nalso the full Senate debate on the Eagleton amendment. We have been\nunable to find a single remark made by Senator Eagleton or any other\nSenator that reasonably could be read to support the assertion con\xc2\xad\n198\n\n\x0ctained in the sentences quoted above from the Harmon Memorandum.\nIn fact, Senator Eagleton and the other Senators who spoke at length\nfor or against the Eagleton amendment manifested an understanding\nthat the debate revolved around the CIA \xe2\x80\x99s potential use of civilian\npersonnel to conduct combat operations rather than situations in which\nthe conduct of the same operations by military forces might occur.\nSenator Eagleton and his principal ally in the floor debate, Senator\nFulbright, repeatedly expressed the view that failing to include activi\xc2\xad\nties which the CIA might conduct with civilian personnel was a major\n\xe2\x80\x9cloophole\xe2\x80\x9d which would allow Presidents to evade the War Powers\nResolution. The whole point of the Eagleton amendment, which\nemerges with considerable clarity once the legislative history is exam\xc2\xad\nined closely, is that Senator Eagleton intended that civilian forces were\nto be treated the same as military forces for purposes of application of\nthe War Powers Resolution:\nMy amendment would circumscribe the President\xe2\x80\x99s use of\nAmerican civilian combatants in the same manner uni\xc2\xad\nformed Armed Forces are circumscribed by S. 440 as\npresently drafted. It would, in other words, prevent a\nPresident from engaging American civilians, either directly\nor as advisers, in a hostile situation without the express\nconsent of Congress.\n119 Cong. Rec. 25,079 (1973) (emphasis added). Thus, Senator Eagleton\nspoke at considerable length about his concern that wars or lengthy and\ncostly military engagements could be caused by CIA covert civilian\noperations. The discussion did not relate to covering, by this amend\xc2\xad\nment, the detailing of military personnel to the CIA.\nFurthermore, the record implies, albeit less strongly on this point,\nthat CIA activities which actually used military personnel would be\ncovered by the War Powers Resolution irrespective of the Eagleton\namendment.\nThe closest that Senator Eagleton himself comes to saying something\nsimilar to what was attributed to him by the Harmon Memorandum is\nin a paragraph that reads as follows:\nSo military activities will be carried on by civilian em\xc2\xad\nployees of the Pentagon, because under the War Powers\nbill nothing prevents the Pentagon from hiring or con\xc2\xad\ntracting with civilian employees, ex-m ilitary people per\xc2\xad\nhaps, but people that are called civilians.\nId. at 25,083 (emphasis added).\n\nSenator Eagleton\xe2\x80\x99s statements do not support the argument that the\nEagleton amendment was an attempt to expand the War Powers Reso\xc2\xad\nlution to embrace CIA activities using military personnel. When exam\xc2\xad\n199\n\n\x0cined in their full context, it was concern over any American involve\xc2\xad\nment in a military context which the Eagleton amendment was intended\nto address. He also said:\nunless we treat all Americans in military situations alike,\nwhether they are wearing a green uniform, red-white-andblue or a seersucker suit with arms\xe2\x80\x94what payroll you are\non is really secondary; whether you get it from the Penta\xc2\xad\ngon or whether you become a member of the Armed\nForces, the end result is the same: Americans are exposed\nto the risk of war. And as they are exposed to the risk of\nwar, the country, then makes a commitment to war.\nId. at 25,080 (1973).\n\nIn this same debate, Senator Javits, speaking in opposition to the\nEagleton amendment, stated his understanding of the applicability of\nthe War Powers Resolution to paramilitary activities conducted by the\nCIA as follows:\nAnother important consideration is that there [is] outside\nthe Armed Forces . . . no agency of the United States\nwhich has any appreciable armed forces power, not even\nthe CIA. They [the CIA] might have some clandestine\nagents with rifles and pistols engaging in dirty tricks, but\nthere is no capability of appreciable military action that\nwould amount to war. Even in the Laotian war, the\nregular U.S. Armed Forces had to be called in to give air\nsupport. The minute com bat air support is required you have\nthe A rm ed Forces, an d the [W ar Powers Resolution ] becomes\noperative.\nId. at 25,082 (emphasis added).\n\nThis debate over the Eagleton amendment stands rather clearly for\nthe proposition that CIA civilian operations (at least most of them)\nwere not embraced by the War Powers Resolution as ultimately passed\nby the Congress unadorned with the Eagleton amendment. We do not\nbelieve the negative inference to be drawn from the defeat of the\nEagleton amendment can be stretched further than to confirm that CIA\ncivilian operations are not embraced by the W ar Powers Resolution.\nIn summary, we believe the legislative history relied on in the\nHarmon Memorandum supports the proposition that Congress assumed\nthat the C IA \xe2\x80\x99s use of civilian or ex-military personnel would not trigger\nthe War Powers Resolution. We do not believe that that legislative\nhistory may be relied upon for the conclusion that the involvement of\n\n200\n\n\x0cmilitary personnel, if temporarily detailed to the CIA and under civilian\ncontrol, would remain outside the War Powers Resolution.\nT\n\nheodore\n\nB.\n\nO\n\nlson\n\nAssistant Attorney General\nOffice o f L egal Counsel\n\n\x0c'


b"April 3, 1979\n\n79-20\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, IMMIGRATION AND\nNATURALIZATION SERVICE\nConstitutional Law\xe2\x80\x94First Amendment\xe2\x80\x94\nAmnesty International\xe2\x80\x94Haitian Detainees\n\nThis is in response to your m em orandum o f February 15, 1979, request\xc2\xad\ning our opinion on the question whether the Immigration and Naturaliza\xc2\xad\ntion Service (INS) is obligated by the First Amendment either to make\navailable to Amnesty International the names o f all Haitian nationals held\nin detention pending deportation proceedings, or to give that organization\nthe opportunity to interview detained Haitians for the purpose o f deter\xc2\xad\nmining whether they desire free legal representation in connection with\npotential claims for asylum. Based on the facts that you describe, it is our\nconclusion that INS is not obliged by the First Amendment to do either.\nAs we understand the situation, Amnesty International has indicated an\nintent to claim that, as an organization with purposes and functions\nsimilar in nature to those o f the National Association for the Advance\xc2\xad\nment o f Colored People (NAACP) and the American Civil Liberties\nUnion (ACLU), it has a First Am endm ent right to contact Haitian de\xc2\xad\ntainees and to offer them free legal assistance, even if its aid has not been\nrequested by the particular detainee. You anticipate that ancillary to this\nasserted primary First Am endm ent right, Amnesty International will\nmaintain that it has a right both to know the names o f all Haitians de\xc2\xad\ntained and to interview each in person to assure that he or she is fully cog\xc2\xad\nnizant o f the legal position and the assistance that that organization pro\xc2\xad\nposes to offer. The claim will be that in order for the INS not to infringe\nAmnesty International\xe2\x80\x99s First Amendment right to association, INS is\nobligated to provide the names and to permit face-to-face, one-on-one in\xc2\xad\nterviews. This claim will be made within the following factual context.\nEach Haitian detainee has already been informed that he or she has the\nright to legal representation at no expense to the Government, see 8 CFR\n\xc2\xa7 242.2(a) (1978), and has been given the names o f organizations in the\n134\n\n\x0ccommunity qualified under 8 CFR \xc2\xa7 292.2 (1978),' that are willing to pro\xc2\xad\nvide legal services without charge or at a nominal cost.2 If a detainee has\nasked to be represented by an attorney or the accredited representative o f a\nqualified organization, his designated counsel is permitted to interview\nhim as provided in \xc2\xa7 21e-g o f the INS Administrative M anual.3 Further,\nINS is willing to deliver, via a blind mailing, a written com m unication4\nfrom Amnesty International to all Haitian detainees urging them to\nauthorize visits by representatives o f that organization. The INS will\nhonor the request o f an individual who authorizes such a visit.5\nWe assume for the purposes in this opinion that Amnesty International\nis, for First Amendment analysis purposes, identical in nature to the\nACLU and the N A A CP, and that the Government may not, consistent\nwith the First Am endm ent, broadly prohibit it from offering free legal\nrepresentation to a person with a potential case that, if litigated, might\nserve \xe2\x80\x9c as a vehicle for effective political expression and association, as\nwell as a means o f communicating useful inform ation to the public.\xe2\x80\x9d In\nRe Primus, 436 U.S. 412, 431 (1978). See also, N A A C P v. Button, 371\nU.S. 415 (1963). However, that Amnesty International may have a limited\nconstitutional right to solicit, or indeed to communicate with, detainees\nfor other purposes, does not imply that INS is obliged to provide it with a\nlist o f potential litigants or that the Service must permit unrequested, inperson interviews o f all detained Haitians.\nWith respect to a First Amendment duty o f INS to disclose to Amnesty\nInternational a list o f Haitian detainees, we believe that organization to be\nin a legal position analogous to that in which a reporter would find himself\nwere he to make such a claim. That is, although the Government may be\ncircumscribed by the First Amendment in regulating Amnesty Interna\xc2\xad\ntional\xe2\x80\x99s solicitation, as it is in regulating a reporter\xe2\x80\x99s newsgathering ac\xc2\xad\ntivities, that limitation\xe2\x80\x94whatever its nature and scope\xe2\x80\x94does not give\nbirth to a corollary affirmative duty to disclose or provide access to infor\xc2\xad\nmation that is not generally available to the public. Cf., Houehins v.\nKQED, Inc., 438 U.S. 1 (1978); Pell v. Procunier, 417 U.S. 817 (1974);\nSaxbe v. Washington Post Co., 417 U.S. 843 (1974).6 In short, any right\n\n1 Amnesty International, you state, has not applied for recognition under 8 CFR\n\xc2\xa7 292.2(b), and therefore has no accredited representative under 8 CFR \xc2\xa7 292.2(d) who may\nrepresent aliens as permitted by 8 CFR \xc2\xa7 292.1(a)(4).\n1 You note that the Miami District Office has refused to refer detainees to the Haitian\nRefugee Center.\n1 Detainees are also permitted to have visits from relatives and friends, Adm inistrative\nManual \xc2\xa7 21a, and Consuls. Id., \xc2\xa7 21e.\n4 Although you have not so stated, we assume that INS would be willing to com m unicate\nthe content o f the written comm unication orally to an illiterate detainee.\n\xe2\x80\x99 As we understand it, INS is willing to permit interviews by Am nesty International at the\nrequest o f a detainee even though th at organization is not presently a qualified organization\nin a position to provide accredited representation to aliens in administrative proceedings. See\nn. 1, supra.\n6 An argument can be m ade that this general rule must be a qualified one. T hus, were\n(Continued)\n\n135\n\n\x0cthat Amnesty International may have to a list o f names o f detained Hai\xc2\xad\ntians is co-extensive with and no greater than that o f the public.7\nIt is also clear that any First Am endm ent right that Amnesty Interna\xc2\xad\ntional has to solicit does not preclude INS from adopting a policy\nreasonably designed to protect the privacy o f detainees in its custody who\nwish to be free from in-person, face-to-face solicitation. The Supreme\nCourt strongly implied, in In Re Primus, supra, at p. 435, n. 28, that even\nwith respect to \xe2\x80\x9c free world\xe2\x80\x9d solicitation, the Government retains broad\npower to limit unrequested face-to-face solicitation. That power clearly\nexists when, as with detainees, the Government controls access to the\nphysical environment in which a person desiring and entitled to some\ndegree o f privacy finds himself.\nW hen the Government places a person in a situation in which he is\nunable to turn his back or walk away from third-party communications he\nhas no desire to see or hear, compare, Erznoznik v. City o f Jacksonville,\n422 U.S. 205 (1975), it does not offend the First Amendment rights o f the\nthird party by offering its captive the opportunity to choose whether he\nwishes to be communicated with before he is addressed in person. This is\nso because the right o f one wishing to communicate or associate with\nanother has never been viewed as including the right to compel the person\nto listen to or view unwanted communications. Rowan v. Post Office\nDepartment, 397 U.S. 728, 737 (1970). The procedure that INS has\nadopted, namely, that it will communicate Amnesty International\xe2\x80\x99s desire\nto solicit to all Haitian detainees and leave the decision whether to submit\nto a face-to-face interview to each individual, is reasonable and does not\nabridge any First Am endment right o f that organization. It is a procedure\n\n(Continued)\nthe situation that, w ithout INS providing their names, Am nesty International would be to \xc2\xad\ntally unable to m ake contact with the Haitian detainees, and were litigating the cases o f the\nHaitian detainees the only vehicle for exercising its First Am endment rights, Amnesty Inter\xc2\xad\nnational would have an appealing argum ent for a special right to disclosure. However, no\nsuch argum ent is available to Am nesty International here. First, it has not shown that with\ndiligence it could not identify at least some o f the Haitian detainees (through, for instance,\ntalking to friends, relatives, attorneys, or refugee organization); and second\xe2\x80\x94and more\nim portantly\xe2\x80\x94INS has offered to deliver its solicitation via a blind mailing.\n1 T he public\xe2\x80\x99s right to access to Governm ent records is defined by the Freedom o f Infor\xc2\xad\nm ation A ct, 5 U .S.C . \xc2\xa7 552 (1976). You have asked whether a list o f names o f Haitian de\xc2\xad\ntainees would be withholdable under exemption (b)(6) o f that Act. The Office o f Inform ation\nLaw and Policy is the com ponent o f the Departm ent o f Justice to which questions concerning\nthe applicability o f an exem ption to a given fact situation should be addressed.\n\n136\n\n\x0csanctioned by the rule enunciated in Rowan v. Post Office Department,\nsupra. 8\nJohn M . H armon\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n' Rowan holds, generally, that the Governm ent may permissibly adopt a regulation that\npermits a person to protect the privacy o f his hom e by requesting the Governm ent to order\nhis name removed from mailing lists for materials he finds offensive. We view a detainee\xe2\x80\x99s\ncell as his \xe2\x80\x9c hom e\xe2\x80\x9d and believe that he has a right to privacy from third-party intrusions. We\nread Rowan as authority for INS to protect that privacy by reasonable regulation and view as\nreasonable a regulation (or procedure) that allows the detainee to decide which intrusions he\nwill permit.\n\n137\n\n\x0c"


b"Possible Participation by the United States in\nIslamic Republic o f Iran v. Pahlavi\nA s lo n g as th e g o v e rn m e n t o f Iran is reco g n iz e d by th e U n ited S tates, it is e n titled to\nm ain tain a law su it in an y sta te o r fed eral c o u rt; h o w e v e r, th e re is a substantial a r g u \xc2\xad\nm en t th a t th e Iran ian g o v e rn m e n t\xe2\x80\x99s suit ag ain st th e S h ah to re c o v e r alleg ed ly m isap p ro \xc2\xad\np ria te d g o v e rn m e n ta l funds sh o u ld be sta y ed o r dism issed w ith o u t p re ju d ic e in light o f\nI ra n 's m assive b re a c h e s o f its tre a ty o b lig atio n s to th e U n ited S tates an d in tern atio n al\nlaw .\nT h e c o u r ts h av e reco g n iz e d th e a p p ro p ria te n e ss o f d e fe rrin g to th e E x e c u tiv e \xe2\x80\x99s foreign\np o lic y d e te rm in a tio n s in c o n n e c tio n w ith claim s o r defenses based on d o c trin e s o f\nfo reig n so v e re ig n im m u n ity o r a ct o f state.\nT h e G o v e rn m e n t\xe2\x80\x99s c o n c e rn s o v e r th e effe ct o f th e litigation on o u r fo reig n po licy\np ro v id e a su fficien t basis to su p p o rt its sta n d in g to in te rv e n e in Ira n \xe2\x80\x99s suit against th e\nS h ah , an d th e re is p re c e d e n t to su p p o rt its in te rv e n tio n a n d assertio n o f cross-claim s\nu n re la te d to th e c o n tro v e rs y in suit.\nA re sp e c ta b le a rg u m e n t can be m ade th at th e S h ah e n jo y s so v e reig n im m unity from suit,\nu n d e r th e 1976 F o re ig n . S o v e re ig n Im m u n ities A c t as w ell as c u sto m a ry in tern atio n al\nlaw , an d th e a c tio n s c o m p la in e d o f a p p e a r to be a c ts o f state. H o w e v e r, th e p resent\ng o v e rn m e n t o f Ira n m ay be ab le to w a iv e th e a p p lic a tio n o f e ith e r o f th ese d o c trin e s to\nd e fe a t its claim s ag ainst th e S h ah , sin c e b o th exist for th e b en efit o f th e sta te in q uestion\nan d n o t fo r th e in d iv id u als w h o lead it.\n\nJanuary 2, 1980\nM E M O R A N D U M O P IN IO N F O R T H E\nA C T IN G A S S O C IA T E A T T O R N E Y G E N E R A L\nT his m em orandum responds to your questions concerning the possi\xc2\xad\nble role o f the United States in the recently filed suit o f the Iranian\ngovernm ent against the Shah in the Suprem e C ourt o f the State o f New\nYork. (Islam ic Republic o f Iran v. Pahlavi, No. 79-22013, Nov. 28,\n1979.) T he suit advances several causes o f action concerning alleged\nm isappropriations o f Iranian governm ental funds by the Shah, and\nclaims $56 billion in dam ages against him and his wife. This m em oran\xc2\xad\ndum, w hich has been prepared in cooperation w ith the Civil Division\nand the U.S. A ttorney\xe2\x80\x99s Office in N ew York, analyzes tw o m ajor\noptions for the U nited States in participating in the case. First, we\nm ight ask for the suit\xe2\x80\x99s stay o r dismissal until the hostages are released,\ndisclaiming any intent to intim ate a position on the merits. T he differ\xc2\xad\nence betw een a stay and a dismissal in this situation would be that since\nthe Shah has departed the United States, a dismissal would term inate\nthe co u rt\xe2\x80\x99s personal jurisdiction over him, leaving Iran w ith only in rem\n160\n\n\x0cactions for his assets located h ere.1 Second, we could intervene and\ncross-claim for relief, conceivably even relief unrelated to Iran\xe2\x80\x99s claims\nagainst the Shah. This mem orandum also forecasts the ultim ate result\non the merits of Iran\xe2\x80\x99s claims against the Shah.\nO ur conclusions are these. First, as a governm ent currently recog\xc2\xad\nnized by the United States, Iran is entitled to maintain a lawsuit in any\nstate or federal court o f com petent jurisdiction. Second, the United\nStates has a sufficient interest to support its standing to participate in\nsome fashion. Third, we have a substantial argum ent that the New\nYork state court should defer to a request by the Executive Branch to\nw ithhold itself from the merits, at least tem porarily. Fourth, there is a\nrespectable argument that we may intervene and bring unrelated cross\xc2\xad\nclaims against Iran. Fifth, if the suit survives these initial procedural\nhurdles, there is a strong prospect that either sovereign immunity or act\nof state 2 doctrines will bar recovery against the Shah.\nI. Iran\xe2\x80\x99s Right to Sue\nAs a preliminary matter, it seems clear that if the United States w ere\nto w ithdraw diplomatic recognition from the governm ent o f Iran, the\nsuit would be dismissed. See Guaranty Trust Co. v. United States, 304\nU.S. 126 (1938). In Guaranty Trust, the C ourt observed that a foreign\ngovernm ent may not maintain a suit in our courts before its recognition\nby the President. It cited a num ber o f federal and state cases dismissing\nactions by the Soviet governm ent before its recognition, am ong them a\nN ew York state court case, Russian Socialist Federated Soviet Republic\nv. Cibrario, 235 N.Y. 255, 139 N.E. 259 (1923). A lthough w ithdraw al of\nrecognition would have the effect o f voiding the suit against the Shah,\nas we discuss below it does not seem a necessary expedient to that end.\nM oreover, derecognition could have the collateral disadvantage o f im\xc2\xad\nperiling our present treaties with Iran, upon whose force we rely to\nassert the illegality of the conduct o f its governm ent.3 T he Legal\nA dviser\xe2\x80\x99s Office at the State D epartm ent has advised us that there is\npresently no serious contem plation o f term inating recognition o f Iran.\nT here is, how ever, a range o f unfriendly actions that this governm ent\nmight take, including severing diplom atic relations. In other cases, such\n\xe2\x80\x98 T he U.S. A tto rn ey \xe2\x80\x99s O ffice in N ew York informs us that service o f process in the suit was\nprobably effective. New York law allow s any service appropriate to meet the constitutional minimum\no f notice and an opportunity to appear. A fter failing to serve the Shah personally, the plaintiffs\nobtained an o rder allow ing service on the hospital adm inistrator, during the Shah's stay there.\n2T h e \xe2\x80\x9cact o f state*' doctrine provides that a court may not . review the validity o f actions taken by a\nforeign sovereign w ithin the sovereign\xe2\x80\x99s territory. See generally, e.g., L. Henkin, Foreign A ffairs and\nthe C onstitution 59-64, 216-21 (1972).\n3 It should be noted, how ever, that o u r recent w ithdraw al o f recognition o f the Republic o f C hina\n(R O C ) was accom panied by a presidential assertion that it w ould not have the effect o f term inating\nexisting treaties w ith the ROC. See the President\xe2\x80\x99s M em orandum for All D epartm ents and A gencies o f\nD ecem ber 30, 1978.\n\n161\n\n\x0cas our longstanding dispute with Cuba, w e have eschewed dere\xc2\xad\ncognition in favor o f less drastic alternatives.\nW hile recognition continues the courts retain jurisdiction, even in a\nclim ate o f m arked hostility. This is made clear by Banco N acional de\nCuba v. Sabbatino, 376 U.S. 398 (1964), in w hich the C ourt held that\nthe act o f state doctrine required A m erican courts to recognize C astro\xe2\x80\x99s\ntitle to Am erican sugar w hich he had expropriated, even though the act\nwas in violation o f international law. In Sabbatino, the C ourt responded\nto an argum ent that the National Bank o f Cuba, an instrum entality of\nthe Cuban governm ent, should be denied access to the Am erican courts\nbecause \xe2\x80\x9cCuba is an unfriendly pow er and does not perm it nationals o f\nthis country to obtain relief in its courts.\xe2\x80\x9d T he C ourt thought that the\nissue was one o f national policy transcending the interests o f the parties\nto the action, and observed that under principles of com ity governing\nour relations with other nations, sovereign states are allowed to sue in\nour courts w henever they are recognized. T he C ourt was unresponsive\nto argum ents based on the severance o f diplom atic relations, com m er\xc2\xad\ncial embargo, and freezing o f Cuban assets in this country:\nThis C ourt w ould hardly be com petent to undertake as\xc2\xad\nsessments o f varying degrees o f friendliness o r its absence,\nand, lacking some definite touchstone for determ ination,\nwe are constrained to consider any relationship, short of\nwar, with a recognized sovereign pow er as em bracing the\nprivilege o f resorting to United States courts.\n376 U.S. at 410. T he C ourt then rem arked that its view was \xe2\x80\x9cbuttressed\nby the circum stance that none o f the acts o f our G overnm ent have\nbeen aimed at closing the courts o f this country to Cuba, and m ore\nparticularly by the fact that the governm ent has com e to the support of\nC uba\xe2\x80\x99s act o f state claim in this very litigation.\xe2\x80\x9d T he effect on a court\xe2\x80\x99s\njurisdiction if the G overnm ent takes the opposite position is considered\nbelow.\nII. Stay or Dismissal of the Proceedings\nT he essence o f our substantive argum ent for a stay or dismissal\nw ithout prejudice w ould be that Iran\xe2\x80\x99s massive breaches of both its\ntreaty obligations to us and international law require appropriate repris\xc2\xad\nals to force return o f the hostages and reparations. W e would urge the\ncourt that tem porarily w ithholding the aid of A m erican courts to the\nIranian governm ent in its affirm ative claims against the Shah and his\nassets w ould be a fair reprisal for the holding o f the hostages. In\nsupport o f our submission to the court, w e could cite analogous prece\xc2\xad\ndent for judicial deference to executive formulations o f foreign policy\nin sovereign immunity and act o f state cases.\n162\n\n\x0cT he substance o f our claim would resemble our recent presentation\nto the W orld Court. We could begin by referring to Iran\xe2\x80\x99s treaty\nobligations to us under the Vienna C onvention on Diplom atic and\nConsular Relations; the T reaty o f Am ity with Iran; and the C onvention\non the Prevention and Punishment of Crimes against Internationally\nProtected Persons. We could then summarize the facts, indicating\nbreaches o f a num ber o f the provisions of these treaties. W e could then\npoint out that these treaties and surrounding principles o f custom ary\ninternational law (which include doctrines o f reprisal) have been incor\xc2\xad\nporated as part o f our dom estic law. A rticle V I o f the C onstitution\nmakes treaties part o f the supreme law of the land, along with the\nConstitution and statutes. T he Vienna C onvention on Diplom atic R ela\xc2\xad\ntions includes an affirmation in its preamble that rules o f custom ary law\nshould govern questions not expressly regulated by the term s o f the\nConvention. And the Supreme C ourt has recognized custom ary interna\xc2\xad\ntional law as part o f our dom estic law .4\nCustom ary international law allows reprisals, which are breaches of a\ntreaty\xe2\x80\x99s term s or other unfriendly conduct in response to a breach by\nanother party. Reprisals must, how ever, respond in a proportionate\nm anner to the preceding illegal act by the party against whom they are\ntaken. See G. Schw arzenberger, A Manual of International Law 184\n(5th ed. 1967). T he proportionality o f a reprisal in a particular case is a\nm atter largely com m itted to judgm ent and precedent.\nT he Iranian breaches in this case are massive and largely unprece\xc2\xad\ndented; reprisals even m ore severe than asset freezing and a tem porary\nclosing of forum doors would probably be appropriate, for example\ntotal embargoes and blockades. Nevertheless, the Iranians could urge\nthat a denial of access to the courts is a particularly serious m atter\nunder the U.S. Constitution, and that the Suprem e C ourt has refused to\nallow the closing o f the courts even during the domestic insurrection of\nthe Civil War. (See E x Parte Milligan, 71 U.S. (4 W all.) 2 (1866)).\nNum erous rejoinders suggest themselves. First, we could emphasize\nthat we are urging only a tem porary denial o f access to our courts\nwhile the hostages are held, and that w e would not seek to interfere\nwith the prosecution o f a suit after their release. (Because the Shah has\nleft the country, how ever, dismissal w ould leave Iran with only in rem\nclaims against his assets. In that sense, even dismissal w ithout prejudice\nwould permanently close our forum to some of Iran\xe2\x80\x99s claims.) Second,\nwe could point out that Iran has refused to follow the W orld C o u rt\xe2\x80\x99s\n4In The Paquete Habana, 175 U.S. 677, 700 (1900), the Suprem e C ourt held that under international\nlaw, fishing vessels belonging to enem y nationals w ere exem pt from capture and condem nation by\nA m erican vessels:\nInternational law is part o f o ur law, and it must be ascertained and adm inistered by the\nc ourts o f justice o f appropriate jurisdiction, as often as questions o f right depending\nupon it are duly presented for their determ ination.\nT h e Cibrario case, cited supra, is one example o f the N ew York C ourt o f A ppeals\xe2\x80\x99 application of\nprinciples o f international law in conform ity w ith this principle.\n\n163\n\n\x0co rd er to release the hostages, or otherw ise to obey the dictates of\ninternational law that they be freed. T he \xe2\x80\x9c unclean hands\xe2\x80\x9d analogy is\nobvious. T hird, Sabbatino implies that a G overnm ent request to close\nthe courts could be an appropriate response to a foreign nation\xe2\x80\x99s denials\no f redress\xe2\x80\x94that an executive branch request could provide the \xe2\x80\x9cdefinite\ntouchstone for determ ination\xe2\x80\x9d that standing should be denied. And\nfourth, foreign nations do not have any claim to seek the aid o f our\ncourts w ithout the interference o f our executive branch.5 F or when\nthey are unrecognized they may not sue at all; when they are allowed\nto sue, the G overnm ent may affect the outcom e on the merits by\ninterposing or w ithdraw ing the defenses o f sovereign immunity and act\no f state, as we discuss in m ore detail below.\nIII. Judicial Deference to Executive Branch Formulations\nof Foreign Policy\nThis brings us to the question o f the respective roles o f the federal\nexecutive and a state court in deciding w hether Iran shall be allowed to\nmaintain this lawsuit. H ere there is a long history o f deference by\ncourts to executive foreign policy determ inations regarding foreign\nclaims or defenses that are affected by doctrines o f immunity or act o f\nstate. Since these tw o doctrines affect the outcom e o f a case on the\nmerits, it seems likely that a court w ould treat a request for a tem po\xc2\xad\nrary stay o r dismissal that is based on foreign policy according to the\nsame principles.\nIn E x Parte Republic o f Peru, 318 U.S. 578, 589 (1943), the State\nD epartm ent had \xe2\x80\x9crecognized and allow ed\xe2\x80\x9d the immunity o f a m erchant\nvessel ow ned and operated by the Peruvian governm ent. Accordingly,\nthe C ourt held that an in rem action against the vessel should be\ndismissed. T he C ourt said:\nT he [D epartm ent o f State] certification and the request\nthat the vessel be declared immune must be accepted by\nthe courts as a conclusive determ ination by the political\narm o f the G overnm ent that the continued retention of\nthe vessel interferes w ith the proper conduct o f our for\xc2\xad\neign relations.6\n5 C hief Judge K aufm an o f the Second C ircuit C o u rt o f A ppeals rem anded the case o f Electronic\nData Systems v. Iran on N ovem ber 29, 1979, in part for the follow ing determ ination:\nO n rem and the district c o u rt m ay ascertain the position o f the D epartm ent o f Slate\nconcerning the d efen d an t\xe2\x80\x99s right o f access to U nited States courts under the extraordi\xc2\xad\nnary circum stances now prevailing.\n610 F.2d 94, 95 (2d Cir. 1979).\n6T w o years later, in Republic o f M exico v. H offm an. 324 U.S. 30, 36, 38 (1945), the C ourt\nelaborated further:\nBut recognition by the courts o f an im m unity upon principles w hich the political\ndepartm ent o f g o v ernm ent has not sanctioned may be equally em barrassing to it in\nsecuring the protection o f o u r national interests and th eir recognition by o th e r nations.\n\n*\n\n*\n\n*\nC ontinued\n\n164\n\n*\n\n*\n\n\x0cT he Second Circuit C ourt o f Appeals then decided cases in much the\nsame vein. See Bernstein v. Van Heyghen Freres, 163 F.2d 246 (2d Cir.\n1947), cert, denied, 332 U.S. 772 (1947); Bernstein v. TV. V. Nederlandsche-Amerikaansche, 173 F.2d 71 (2d Cir. 1949). In the latter, after\nthe court had applied the act o f state doctrine to bar review o f Nazi\nexpropriations, the State D epartm ent w rote a letter to the court saying:\nT he policy o f the Executive, with respect to claims as\xc2\xad\nserted in the United States for the restitution o f identifia\xc2\xad\nble property . . . lost through . . . duress as a result of\nNazi prosecution in G erm any, is to relieve A m erican\ncourts from any restraint upon the exercise o f their ju ris\xc2\xad\ndiction to pass upon the validity o f the acts o f Nazi\nofficials.\nT he court o f appeals responded by holding that the doctrine would not\napply in view o f this supervening expression o f executive policy, and\nrevised its mandate. Bernstein v. N.V. Nederlandsche-Amerikaansche, 210\nF.2d 375, 376 (2d Cir. 1954).\nBefore the Supreme C ourt suggested that courts should defer com \xc2\xad\npletely to executive discretion regarding the need to apply sovereign\nimmunity doctrine in a particular case, the N ew York C ourt o f Appeals\nhad taken a position that retained a m ore active judicial role. In\nAnderson v. N. V. Transandine Handelmaatschappij, 289 N.Y. 9, 43\nN.E.2d 502 (1942), a N ew York resident sued a N etherlands firm for\nconverting securities and monies owned by his assignor, on a cause of\naction arising in the Netherlands. T he defendants answ ered that a\ndecree o f the lawful governm ent o f the N etherlands had vested title to\nthe property in the governm ent. The question was therefore the effec\xc2\xad\ntiveness o f the decree. T he State D epartm ent, through the U.S. A tto r\xc2\xad\nney, applied to the court o f appeals for leave to appear and file \xe2\x80\x9cA\nSuggestion o f the Interest o f the United States in the M atter in Litiga\xc2\xad\ntion.\xe2\x80\x9d 7 T he Suggestion o f Interest began by identifying the interest o f\nthe United States in the subject m atter as the effect o f the co u rt\xe2\x80\x99s\ndecision on the foreign policy o f the United States. T he G overnm ent\noutlined the applicable policy and urged the court to affirm the deci\xc2\xad\nsion below, dismissing the suit.\nT o the court o f appeals, the question was w hether the action o f the\nNetherlands offended N ew York public policy.8 T he confiscation\nWe can only conclude that it is the national policy not to extend the immunity in the\nmanner now suggested, and that it is the duty of the courts, in a matter so intimately\nassociated with our foreign policy and which may profoundly affect it, not to enlarge an\nimmunity to an extent which the government, although often asked, has not seen fit to\nrecognize.\n7T h e U.S. A tto rn ey stated in his application that \xe2\x80\x9c in the interest o f orderly pro ced u re\xe2\x80\x9d the m atter\nwas being presented by motion for leave to file, though he questioned w h e th er leave o f the court was\nnecessary. 43 N .E .2d at 505.\n\n8The court summarized its view of the law: \xe2\x80\x9cBy comity of nations, rights based upon the law of a foreign\nState to intangible property which has a situs in this State, are recognized and enforced by the courts of this\nState, unless such enforcement would offend the public policy of this S tate/\xe2\x80\x99 43 N.E.2d at 506.\n\n165\n\n\x0cinvolved, having occurred during the emergency of World War II, did\nnot offend the sensibilities of the court. Having decided the issue, the\ncourt continued in dictum that it need not consider whether the State\nDepartm ent\xe2\x80\x99s formulation of policy could change judicial questions\ndetermined in the New York system into political questions which\nwould allow the Department of State to supersede the public policy of\nthe state. The court recognized there might be situations in which that\npower should exist, for example where the public policy of a State\nwould interfere with the performance of an executive agreement (such\nas the assignment of Russian claims to the United States that was\nupheld in United States v. Pink, 315 U.S. 203 (1942)). The court thought\nthat allowing State Department policy formulation to override the\npublic policy of a state might involve \xe2\x80\x9cvery serious consequences\xe2\x80\x9d in\nsome cases, but could have no untoward consequences where, as here,\nthe State Department and the state were in agreement.\nIn its reservation concerning the conclusive effect of the State De\xc2\xad\npartment\xe2\x80\x99s formulation of policy, the New York Court of Appeals\nforeshadowed developments to come in the formulation of the relevant\ndoctrines. In Banco N acional de Cuba v. Sabbatino, 376 U.S. 398 (1964),\nthe Supreme Court placed the act of state doctrine on a new footing\nsomewhat less deferential to Executive Branch formulations than the\nold immunity cases. In Sabbatino the Court\xe2\x80\x99s recognition of Castro\xe2\x80\x99s\ntitle to the American sugar accorded with the request of the Executive\nBranch. Nevertheless, the Court went out of its way to reformulate the\ndoctrine as law created by the federal courts on their own authority,\nnot as a direct reflection of national policy as promulgated by the\nExecutive. The Court said:\nThe doctrine as formulated in past decisions expresses the\nstrong sense of the Judicial Branch that its engagement in\nthe task of passing on the validity of foreign acts of state\nmay hinder rather than further this country\xe2\x80\x99s pursuit of\ngoals both for itself and for the community of nations as a\nwhole in the international sphere. . . . W hatever consid\xc2\xad\nerations are thought to predominate, it is plain that the\nproblems involved are uniquely federal in nature. If fed\xc2\xad\neral authority, in this instance this Court, orders the field\nof judicial competence in this area for the federal courts,\nand the state courts are left free to formulate their own\nrules, the purposes behind the doctrine could be as effec\xc2\xad\ntively undermined as if there had been no federal pro\xc2\xad\nnouncement on the subject. . . . [W]e are constrained to\nmake it clear that an issue concerned with a basic choice\nregarding the competence and function of the Judiciary\nand the National Executive in ordering our relationships\n\n166\n\n\x0cwith other members of the international community must\nbe treated exclusively as an aspect of federal law. . . .\n376 U.S. at 423-25. Thus, the decision made act of state a component of\nfederal common law, and expressly said that this was one of those\n\xe2\x80\x9cenclaves of federal judge-made law which bind the States.\xe2\x80\x9d At the\nsame time, the Court realized that New York law also accepted the\ndoctrine, and would have reached the same result. Id. at 426.\nIn First N ational C ity Bank v. Banco N acional de Cuba, 406 U.S. 759\n(1972), the Cuban government sued to recover assets held by the bank;\nthe bank counterclaimed for the value of its properties which Cuba had\nconfiscated. In the lower courts, the Department of State communi\xc2\xad\ncated a \xe2\x80\x9cdetermination by the Department of State that the act of state\ndoctrine should not be applied to bar the counterclaim.\xe2\x80\x9d The Court of\nAppeals disregarded the Department and applied the doctrine to dis\xc2\xad\nmiss the counterclaim. The Supreme Court reversed, but only a plural\xc2\xad\nity of three Justices thought that the Court should give conclusive\neffect to State Department policy; six Justices explicitly rejected the\ndoctrine that the courts are bound to follow the Executive in such\ncases.\nThus, the Supreme Court\xe2\x80\x99s two recent cases on act of state suggest\nthat the earlier immunity cases, which were not strictly in point and\nwere not mentioned, were somewhat overstated. Nevertheless, all of\nthe cases have recognized the appropriateness of Executive Branch\ncommunications to the courts expressing foreign policy concerns over\napplication of the defense doctrines in particular lawsuits.\nIf the Executive may urge the courts to reach a particular outcome\non the merits, surely it may urge a temporary stay or dismissal for the\nsame kinds of reasons. At the same time, it is now difficult to argue that\nexecutive determinations are conclusively binding on the courts, even\nin contexts related to but not subsumed within the act of state doctrine.\nThe courts will not promise to accede to State Department policy\nviews; by the same token, deference is likely to occur in true crisis\nsituations such as the present one, where the Department of State can\ngive good reasons, grounded in the complexity of foreign policy, for\nurging a particular disposition. Thus, Sabbatino 's discussion of closing\nthe forum to foreign governments suggests that a State Department\nrequest to deny standing might have received deference in that case,\nand should receive deference in this one.\nIn making its decision on a stay or dismissal motion in Iran\xe2\x80\x99s suit\nagainst the Shah, the New York court could draw on either of two\nsources of law. One would be the federal common law principles of the\ntwo recent Supreme Court cases, to the extent that they now govern\nbeyond the act of state context. Here an argument can be made that the\nfunctional considerations the Court advanced should make federal\ncommon law govern whenever foreign policy concerns have direct\n167\n\n\x0cimpact on domestic litigation, and that the Court\xe2\x80\x99s deference to Execu\xc2\xad\ntive Branch submissions should apply as well. Alternatively, we could\ninvoke the state law public policy doctrine of Anderson, supra, to the\nextent it survives Sabbatino. We have not researched the New York\npublic policy cases, but an argument to basic equity principles such as\n\xe2\x80\x9cunclean hands\xe2\x80\x9d seems one possibility.\nIV. Cross-claims\n\nInstead of seeking to delay or dismiss the suit, we could attempt to\nintervene in the lawsuit as a party, seeking affirmative relief. Interven\xc2\xad\ntion as a party might allow us to assert a cross-claim against the\nplaintiff \xe2\x80\x9cIslamic Republic\xe2\x80\x9d under the doctrine of Republic o f China v.\nFirst N ational C ity Bank, 348 U.S. 356 (1955). In allowing a party sued\nby an otherwise immune sovereign to assert any claim of its own\nagainst that sovereign, R epublic o f China emphasized considerations of\n\xe2\x80\x9cfair dealing.\xe2\x80\x9d Thus, Iran has waived its immunity from suit to at least\nsome extent by invoking the aid of our courts. Republic o f China held\nexplicitly that a counterclaim need not be related to the subject matter\nof the plaintiffs claim. The case does not provide direct precedent,\nhowever, for third party intervention to assert claims, some of which\nmight bear no relation to the controversy in suit. Nevertheless, the\nemphasis on \xe2\x80\x9cfair dealing\xe2\x80\x9d in Republic o f China suggests that the G ov\xc2\xad\nernment might have a special argument that Iran\xe2\x80\x99s use of our courts to\npursue its case against the Shah should subject Iran to all claims the\nUnited States may have against it. Such an argument would derive\nfrom the Government\xe2\x80\x99s power to deny Iran a forum entirely (by with\xc2\xad\ndrawing recognition) or partially (by urging the courts to allow the\ninterposition of defenses). Therefore, by bringing a lawsuit that depends\nfor its success on cooperation by our Government, Iran may open itself\nto our own claims against it. Perhaps, however, our rights in the matter\nwould be limited to any of the Shah\xe2\x80\x99s assets the court may decide to be\nthose of Iran.\nV. The Interest of the United States in this Litigation\n\nIn order to participate in Iran\xe2\x80\x99s suit against the Shah, the Govern\xc2\xad\nment must demonstrate a sufficient interest in the litigation to support\nits standing. The nature of the interest asserted would depend on the\nnature of the Government\xe2\x80\x99s position. If we decide to ask for stay or\ndismissal of the case, our concerns about the effect of the litigation on\nour foreign policy would provide a sufficient interest. That is implicit in\nthe numerous cases receiving government communications on the sov\xc2\xad\nereign immunity and act of state doctrines. Also, at least some support\ncould be drawn from cases recognizing the Government\xe2\x80\x99s standing to\nsue to enforce its treaties (e.g., Sanitary D istrict v. United States, 266\n\n168\n\n\x0cU.S. 405 (1925)). Here we would be seeking to enforce a treaty reprisal\nthrough the judicial process.\nOn the other hand, if we seek to intervene and cross-claim ordinary\nstandards for intervention in New York would probably apply. These\nare discussed below.\nVI. The Government\xe2\x80\x99s Strategy Choices\n\nThe Government might eventually take any of a number of policy\npositions with regard to this lawsuit. Therefore, it is important to avoid\na hasty submission to the court that might foreclose later options. There\nare at least the following possibilities:\n1) Request for a temporary stay.\n2) Request for dismissal without prejudice.\n3) A request that the court honor the Shah\xe2\x80\x99s sovereign immu\xc2\xad\nnity and act of state defenses.\n4) A request that the court disregard the Shah\xe2\x80\x99s defenses.\n5) Intervention with a cross-claim against Iran.\n6) Our substitution as plaintiff for Iran pursuant to an assign\xc2\xad\nment of its claims against the Shah. (This presently seems\nremote, but it has occurred in the past. E.g., United States v.\nPink, 315 U.S. 203 (1942).)\n7) Expansion of the current freeze to include the assets of the\nShah or all Iranian nationals. This could be accomplished\nwithout communicating with the court, but with indirect\neffect on the litigation.\nFirst, a temporary stay could be sought without foreclosing our other\noptions. Since the court is likely to be expecting a communication from\nus on the applicability of the defense doctrines, we could and should be\nexplicit that our stay request intimates no position on the merits. A\nrequest for dismissal without prejudice, however, could lead to the\nforeclosure of our opportunity to counterclaim, if the request is granted\nand Iran does not file an in rem action.\nSubmissions to the court regarding the defense doctrines are not fully\nconsistent with a cross-claim. For if the Government were to intervene,\nclaiming the assets insofar as they .are adjudged to belong to Iran, we\nwould be in no position to file suggestions that immunities or act of\nstate should be waived to our pecuniary benefit. Perhaps, however, the\nsituation would be different were we asking for a general judgment\nagainst Iran, without regard to the ownership of these assets.\nAn early submission suggesting that the defense doctrines be applied\nin the Shah\xe2\x80\x99s favor might prevent the Government from taking a later\nassignment of Iran\xe2\x80\x99s claim. It therefore seems best to avoid taking any\nposition on the applicability of the defenses for the time being.\n\n169\n\n\x0cAn expansion of the freeze to include these assets does not seem\ninconsistent with any of the possible actions to be taken in the litiga\xc2\xad\ntion. It should not be necessary to take a position on the ultimate\nownership of the Shah\xe2\x80\x99s assets in order to freeze them as property in\nwhich Iran or an Iranian national has an interest.\nVII. Modes of Participating in the Lawsuit\n\nThe precedents cited above indicate a number of alternative means\nby which the Government\xe2\x80\x99s position can be communicated to the court:\nA. L etter\n\nA letter can be written to the Administrative Judge, First Judicial\nDistrict, Supreme Court of the State of New York. (Under New York\nprocedure, this case will not be assigned to an individual Justice until it\nrequires some form of judicial action, as when a party files a motion\nrequiring adjudication.)\nB. Suggestion o f Interest\n\nA \xe2\x80\x9cSuggestion of Interest of the United States\xe2\x80\x9d can be filed, as was\ndone in Anderson, supra. See also Federal Republic o f G erm any v.\nElicofon, 358 F. Supp. 747 (E.D.N.Y. 1972), affirm ed on opinions below,\n478 F.2d 231 (2d Cir. 1973) (expressing the Government\xe2\x80\x99s non\xc2\xad\nrecognition of East Germany and recognition of West Germany).\nC. Am icus Curiae\nNew York law neither forbids nor generally defines amicus curiae\nsubmissions, except for the Court of Appeals, which specifically permits\nthem under general criteria which this case would satisfy. New York\nCourt Rules \xc2\xa7 500.9(e) (1978). The amicus vehicle is, however, fre\xc2\xad\nquently employed in both the Supreme Court and the Appellate Divi\xc2\xad\nsion by means of a motion on notice for permission to file. It is\nrecognized indirectly, e.g. N.Y. Civ. Prac. Law \xc2\xa7 1012(c) (McKinney\n1980), and in all likelihood would not be rejected. Of course, our\nappearance amicus would not accord the Government the right to\nappeal.\nD. Intervention\n\nThe Government could intervene as of right, N!Y. Civ. Prac. Law\n\xc2\xa7 1012, or by permission, \xc2\xa7 1013. Intervention must be \xe2\x80\x9ctimely.\xe2\x80\x9d We\nhave found no cases of intervention by the United States in New York\ncourts under the modern rules, and no discussions Of.early intervention.\nUnderstandably, the cases have focused on tardy intervention, and have\nallowed it as late as the eve of trial or even post-judgment, unless\nintervention would delay the case unnecessarily or confuse the issues.\n170\n\n\x0cSee Stanford Associates v. Board o f Assessors, 39 A.D.2d 800, 332\nN.Y.S.2d 286 (3d Dep\xe2\x80\x99t 1972); Auerbach v. Bennett, 64 A.D.2d 98, 408\n\nN.Y.S.2d (2d Dep\xe2\x80\x99t 1978).\nThe standards for intervention as of right are as follows:\nUpon timely motion, any person shall be permitted to intervene\nin any action:\n1) when a statute of the state confers an absolute right to\nintervene; or\n2) when the representation of the person\xe2\x80\x99s interest by the par\xc2\xad\nties is or may be inadequate and the person is or may be\nbound by the judgment; or\n3) when the action involves the disposition or distribution of,\nor the title or a claim for damages for injury to, property\nand the person may be affected adversely by the judgment.\nN.Y. Civ. Prac. Law \xc2\xa7 1012(a).\nTo intervene as of right the Government can argue that it may be\n\xe2\x80\x9cbound\xe2\x80\x9d by the judgment due to its effects on foreign policy; we can\nnotify the court that we may make a submission later concerning\nwhether immunity or act of state doctrines should bar the claim. Alter\xc2\xad\nnatively, we could argue that this action involves the disposition of\nproperty, i.e. the Pahlavi Foundation building in New York and any\nother such assets, and that the United States would be affected by a\njudgment in that we might claim the assets ourselves, if held to belong\nto Iran. There appears to be no precedent in New York law for\narguments not based on our own claims to these assets (indeed, the\nNew York courts have interpreted this provision largely in terms of\ncommercial interests, see Cavages, Inc. v. Ketter, 56 A.D.2d 730, 392\nN.Y.S.2d 755 (4th Dep\xe2\x80\x99t 1977)). Still, it is difficult to imagine that\nintervention in some form will not be allowed in view of the circum\xc2\xad\nstances. Moreover, New York\xe2\x80\x99s rules were adapted from the federal\nrules, and were meant to broaden their scope and to liberalize them. See\n12 N.Y. Jud. Council Rep., 163, 218-32 (1946); see also 2 Weinstein,\nKorn & Miller, New York Civil Practice 1012.04 (1978). Thus, in view\nof New York\xe2\x80\x99s general inclination to take guidance from the Federal\nRules of Civil Procedure, and the liberal interpretation given Rule 24,\nFed. R. Civ. P. and its predecessors, intervention as of right might have\na good chance of success. See, e.g., S E C v. U.S. Realty, 310 U.S. 434\n(1940) (permitting the SEC to intervene to protect the integrity of its\nregulatory framework).\nIf at this point in the litigation the Government decides to make\narguments for stay or dismissal that are essentially unrelated to the\nproperty involved in the lawsuit, it may be more politic to invoke the\n171\n\n\x0cliberal standard for permissive intervention,9 although New York ap\xc2\xad\npears to make little distinction between the two standards. We could\nidentify common questions of law or fact as those bearing on any\nsubmission to be made in the litigation concerning immunities or act of\nstate doctrine.\nVIII. Iran\xe2\x80\x99s Prospects on the Merits\n\nThe complaint alleges that the Shah was the de facto ruler and head\nof state of Iran from 1941 until January 1979. The acts complained of\nare alleged to have taken place in Iran during the period that the Shah\nwas the ruling monarch. The complaint is devoid of allegations that the\nShah engaged in any of the acts complained of in the territory of the\nUnited States or at a time subsequent to January 1979 when he presum\xc2\xad\nably ceased to be the head of state of Iran.10 Based on these allegations,\nthe acts alleged appear to constitute acts of state.\nA respectable argument can also be made that the Shah enjoys\nsovereign immunity from suit.11 Restatement (Second) of the Foreign\nRelations Law of the United States, \xc2\xa766 (1965), states in pertinent part:\n\xc2\xa766. Applicability of Immunity of Foreign State\nThe immunity of a foreign state under the rule stated in\n\xc2\xa7 65 extends to\n(a) the state itself;\n(b) its head of state and any person designated by him\nas a member of his official party;\n(c) its government or any governmental agency; . . .\nThe 1976 Foreign Sovereign Immunities Act, 28 U.S.C. \xc2\xa7 1602 et seq.,\ndoes not expressly address the privileges and immunities of reigning\nmonarchs, but talks only in terms of \xe2\x80\x9cforeign states.\xe2\x80\x9d Nevertheless,\nunder the Restatement formulation, supra, it is arguable that a reigning\nmonarch enjoys the immunities of a \xe2\x80\x9cforeign state\xe2\x80\x9d as codified in the\nAct.\n9T o intervene by permission:\nUpon timely motion, any person may be perm itted to intervene in any action w hen a\nstatute o f the state confers a right to intervene in the discretion o f the court, or when\nthe person's claim o r defense and th e main action h ave a com m on question o f law or\nfact. In exercising its discretion, the court shall consider w hether the intervention will\nunduly delay the determ ination o f the action o r prejudice the substantial rights o f any\nparty.\nN.Y. Civ. Prac. Law \xc2\xa7 1013.\n10 It is not clear w h eth er the Shah did, in fact, cease to be head o f state o f Iran after he left Iran in\nJanuary 1979. T h e Shah him self has never abdicated; the U nited States governm ent has never\npronounced that it no longer recognizes the Shah as the reigning m onarch o f Iran.\nA lth o u g h it is manifest that the Shah no longer exercises de facto governm ental pow ers, it is not\nunusual in international law to treat fictions as realities. Thus, the U nited States recognized as the de\njure governm ent o f Russia from 1917 until 1933 the K erensky governm ent, even though Mr. K erensky\nhad fled the Soviet Union in 1921.\n11 In Hatch v. Baez. 14 N.Y. (7 H un) 596 (1876), the c o u rt held that the acts w hile in office o f a\nform er head o f state w ere immune from judicial scrutiny. T h e c o u rt\xe2\x80\x99s decision is phrased in terms\nsuggestive o f both act o f state and sovereign im m unity doctrines.\n\n172\n\n\x0cSection 1605(a)(5) preserves the immunity of foreign states from suit\nwith respect to\xe2\x80\x94\n(A) any claim based upon the exercise or performance\nor the failure to exercise or perform a discretionary func\xc2\xad\ntion regardless of whether the discretion be abused, or\n(B) any claim arising out of malicious prosecution,\nabuse of process, libel, slander, misrepresentation, deceit,\nor interference with contract rights.\nThe tortious and wrongful acts alleged in the complaint would prob\xc2\xad\nably fall within the above exceptions of the Act.\nAlternatively, if the Act were construed not to apply to personal\nmonarchs, the Shah would be entitled to immunity under generally\nrecognized doctrines of customary international law. See 1 Oppenheim\xe2\x80\x99s\nInternational Law 676 ff. (Lauterpacht ed., 7th ed. 1953).\nSince either act of state or sovereign immunity may defeat Iran\xe2\x80\x99s\nclaims against the Shah if applied in this case, it is important to con\xc2\xad\nsider whether the present Iranian government may waive the applica\xc2\xad\ntion of these doctrines to the acts of its predecessor. There appears to\nbe a paucity of authority on point. As an a priori matter, it seems that\nIran might be able to waive the doctrines, at least if our submission to\nthe court urges allowing them to do so.12 Both doctrines exist for the\nbenefit of the state in question, not for the individuals who lead it.\nTherefore it seems incongruous to apply the doctrines to defeat a claim\nby a state for its own assets converted by a former monarch.\nL\n\narry\n\nA. H\n\nam m ond\n\nD eputy Assistant Attorney General\nOffice o f L egal Counsel\n\n12 A nalogy may be taken to the pattern o f diplom atic immunities and then w aiver. U nder the\nVienna C onvention on D iplom atic Relations, the sending state may w aive a diplom at's im m unity (art.\n32). A bsent w aiver, how ever, im m unity for the exercise o f official functions subsists after the d iplo\xc2\xad\nm at's appointm ent has term inated (art. 39.2).\n\n173\n\n\x0c"