Presidential Power to Expel Diplomatic Personnel from the United States ( 1980 )

Presidential Power to Expel Diplomatic Personnel
from the United States
T h e P resid en t has in h eren t co n stitu tio n al p o w e r to d e c la re fo reig n d ip lo m atic perso n n el
persona non grata an d to expel them fo rcib ly from th e U n ited S tates; th e ex ercise o f this
p o w e r is c o n sisten t w ith in tern atio n a l law , in clu d in g specifically th e V ien n a C o n v e n ­
tion o n D ip lo m atic R elations.
In h ere n t in th e P re sid e n t’s p o w e r to reco g n ize foreign co u n trie s an d th eir m inisters is
im plied p o w e r o v e r th e physical prem ises o f d ip lo m atic p ro p erties, in clu d in g p o w e r to
tak e actio n s n ecessary to p ro te c t em bassies from d am age, an d to d e n y possession to o r
to eje c t th o se n o t reco g n ized as d ip lo m atic p erso n n el o f th e sen d in g state.
A fo reig n d ip lo m at w h o has b een d e c la re d persona non grata and o rd e re d to leav e the
c o u n try d o es n o t lose his d ip lo m atic status, and th u s sh o u ld n ot be able to assert any
legal en titlem en t to rem ain in th e U nited S tates u n d e r th e Im m ig ratio n an d N atio n ality
A ct; n o r sh o u ld su ch an individual be able to fru s tra te o r d elay e x e c u tio n o f an
expulsion o rd e r b y re n o u n c in g his d ip lo m atic status. T h e S e c re ta ry o f S ta te m ay
rev o k e th e visas o f d ip lo m ats d e c la re d persona non grata to forestall th e ir in v o catio n o f
th e IN A as a basis fo r ch allen g in g th e P re sid e n t’s expulsion o rd e r.
F ed eral law en fo rc e m e n t officials, p a rtic u la rly th e S ecret S erv ice, h a v e a u th o rity to
p ro te c t Iran ian d ip lo m atic p ro p e rty against th ird p arties, in clu d in g any p erso n s not
c u rre n tly reco g n ized by the U n ited S tates as a c c re d ite d d ip lo m a tic p erso n n el. T h e
P resid en t is a u th o riz e d to call on th e full ran g e o f his re so u rc e s in th e E x e c u tiv e
B ran ch , in clu d in g th e m ilitary, an d also on th e reso u rces o f sta te o r local law e n fo rc e ­
m en t ag en cies, to c a rry o u t an expulsion o r d e r in this situation.
T h e D u e P ro c ess C lau se o f th e F ifth A m e n d m e n t at m ost req u ires o n ly a d e te rm in a tio n
th at a d ip lo m at ab o u t to be expelled from th e U n ited S tates p u rsu a n t to th e P re sid e n t’s
o rd e r is in fact th e p erso n o rd e re d to be expelled; an expulsion o r d e r is arg u ab ly
su b ject to ju d icial rev iew , on a w rit o f h abeas co rp u s, but o n ly o n th e lim ited g ro u n d s
o f m istaken id entity.
April 4, 1980
MEMORANDUM OPINION FOR TH E DEPUTY ATTORNEY
G EN ER A L AN D T H E ASSOCIATE ATTORNEY G E N E R A L
This responds to your joint request for our views regarding the
authority of the President to expel foreign diplomatic personnel from
the United States, to maintain control over the premises of Iranian
diplomatic property in connection with that expulsion, and the legal
constraints placed on that authority by international and domestic law
and by our Constitution. For the reasons stated hereafter, we believe
that the President has the authority to declare a nonresident alien who
is a member of the staff of a foreign diplomatic or consular post in the
United States to be persona non grata, forcibly to expel such diplomatic
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personnel from the United States within a reasonable period of time (as
set by the President) after being declared persona non grata, and to take
all steps reasonably designed to secure all Iranian diplomatic properties
and limit their use to diplomatic activities conducted by a third nation
acceptable to the President. We conclude that the exercise of this
power over diplomatic personnel is not constrained by the Immigration
and Nationality Act of 1952, and that the Constitution requires only
that a procedure reasonably calculated to insure that personnel actually
expelled are those previously declared persona non grata be utilized.
We also conclude that prior to their expulsion, diplomatic personnel
are not entitled as a' matter of law to assert any federal statutory right
to remain in this country as a means of avoiding their expulsion.1
Finally, we believe that judicial review of any actions taken by the
President related to expulsion would be limited to possible inquiry by
habeas corpus into the question whether a particular person to be
expelled was in fact previously declared persona non g rata.2
I. Presidential Authority Over Diplomatic Personnel and Property
The President’s authority over foreign diplomatic personnel derives
from his power, under Article II, § 3 of the Constitution, to “receive
Ambassadors and other Public Ministers.” This provision is the basis of
the President’s power to grant or withdraw recognition to foreign
governments and their ministers, a power regarded as textually commit­
ted to the Executive alone. See Jones v. United States, 137 U.S. 202, 212
(1890); B aker v. Carr, 369 U.S. 186, 212-13 (1962).3 The President’s
power to accept or reject a particular envoy has been beyond serious
question since President Washington demanded the recall of Citizen
Genet, the French Minister. In 1855, the Attorney General took the
position that this right of reception, and therefore rejection, extends to
“all possible diplomatic agents which any foreign power may accredit
1A separate international legal question w ould be raised in the event o f a claim o f political asylum
by one o f the individuals w hose d ep artu re is o rd ered . T h e U nited States is a party to the 1967
Protocol R elating to the Status o f R efugees, Jan. 31, 1967, 19 U .S.T. 6223, T.I.A .S. 6577. This
Protocol obliges us not to expel o r return a refugee to a territo ry w here his life o r freedom w ould be
threatened on account o f his race, religion, nationality, m em bership o f a p articular social g roup o r
political opinion. T h e P ro to co l defines "refugee" as a person w ho, ow ing to w ell-founded fear o f such
persecution, is outside the co u n try o f his nationality and is unable or, ow ing to such fear, is unw illing
to avail him self o f the protection o f that country.
T h e re is no exception provided in th e P ro to co l w ith respect to diplom atic and consular personnel
and, in practice, such personnel have been acco rd ed the benefits o f the C onvention.
It w ould seem unlikely that any Iranian diplom atic o r consular personnel w h o rem ain officials o f
the present g o vernm ent o f Iran, more than one year after its establishm ent, w ould have a reasonable
fear o f persecution by that governm ent. N evertheless, such claim s are possible, and the U nited States
should have a pro ced u re for assuring that expulsion will not v iolate our treaty obligations under the
R efugee Protocol. A possible approach to this problem is described in Part III o f this m em orandum .
2 W e note that th e analytical basis fo r th e conclusions set fo rth above and the reasoning set forth
below is d raw n to a great extent from a series o f m em oranda from this O ffice to the A ttorney G eneral
dating from N ovem ber o f 1979. W e w ould also note that w e use the term s diplom atic personnel and
diplom atic pro p erty herein to include b o th diplom atic and consular personnel and property; for our
purposes, legal distinctions am ong these classes are eith er irrelevant o r specifically noted.
3See generally 2 B. S ch w artz, T h e P ow ers o f th e President 104-09 (1963).
208
to the United States.” 7 Op. A tt’y Gen. 186, 209 (1855); 5 Moore,
International Law Digest 15—19 (1906). It is recognized that the power
to receive Ambassadors is a discretionary one which necessarily in­
cludes the right to refuse to receive them, to require their departure,
and to determine their eligibility under our laws. 4 Moore, International
Law Digest 473-548 (1906).
The President’s power to receive and expel foreign diplomatic per­
sonnel is a power recognized to inhere in all sovereign nations by the
1961 Vienna Convention on Diplomatic Relations, Apr. 18, 1961,
23 U.S.T. 3227, T.I.A.S. No. 7502. The President’s power over diplo­
matic property is a concomitant of his power over diplomatic personnel
to the extent that its exercise relates to his recognition power and his
power over the conduct of our foreign relations and is likewise recog­
nized by the Vienna Convention. Under Article 22 of the Vienna
Convention, this country has a duty to take “all appropriate steps to
protect the premises of the mission against any intrusion or damage and
to prevent any disturbance of the peace of the mission.” Article 45 of
the Convention requires the receiving state to “respect and protect the
premises of the mission, together with its property and archives,” and
authorizes the sending state to entrust custody of the premises to a third
state acceptable to the receiving state where the receiving state orders
the recall of diplomatic personnel.
Because diplomats and consuls who have been ordered to leave the
United States have always complied, the President’s authority to order
their departure and to enforce such orders has never been subject to
judicial challenge. However, individuals have from time to time
claimed diplomatic status and have asserted a resulting entitlement to
immunity from judicial process. In these cases the courts have consist­
ently acknowledged that determinations as to whether an individual
was recognized by the United States as a representative of a foreign
government were properly within the province of the Executive. A c­
cordingly, the courts have held that certifications by the Department of
State are conclusive as to the status, privileges, and immunities of
foreign diplomatic personnel. In re Baiz, 135 U.S. 403 (1890); Carrera v.
Carrera, 174 F.2d 496, 497 (D.C. Cir. 1949). As discussed below, we
believe an executive determination that an individual previously recog­
nized as a diplomatic or consular representative had been declared
persona non grata and was required to depart from the United States
would be entitled to the same judicial deference under the rationale of
these decisions. See A dam s v. Vance, 570 F.2d 950 (D.C. Cir. 1978).
II. Legal Constraints on the Exercise of the President’s Authority
We have identified three types of authority which inform and poten­
tially constrain the President’s exercise of his authority to declare per­
sona non grata and to expel foreign diplomatic personnel other than
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personnel accredited to the United Nations and to regulate the use of
diplomatic property.4 The first and most directly relevant authority is
international law, specifically the Vienna Convention on Diplomatic
Relations. The second is federal statutory law, including the Immigra­
tion and Nationality Act of 1952, 8 U.S.C. §§ 1101 et seq. The third is
the Due Process Clause of the Fifth Amendment of the Constitution.
We will discuss each of these in turn.
A. International Law
1. Diplomatic personnel
Under international law it has long been recognized that every sover­
eign nation has the right to determine whether it will receive a diplo­
matic envoy from another nation and whether it will continue to
receive and conduct official business with an envoy who has been
accepted.5 This right is reflected in Article 9 of the 1961 Vienna
Convention on Diplomatic Relations, a codification in most material
respects of prevailing customary international law on this subject. Arti­
cle 9 provides that the receiving state may, at any time and without
having to explain its decision, notify the sending state that any diplo­
matic officer is persona non grata or that a nondiplomatic staff member
is no longer “acceptable.” Following this determination, the sending
state must either recall the person concerned or, “as appropriate,”
terminate that person’s functions at the mission.6
Once declared persona non grata, foreign diplomatic personnel do not
automatically lose their diplomatic status or the diplomatic immunities
to which they are entitled under international law. Under U2 of Article
9 of the Convention, if the sending state “refuses or fails within a
reasonable period to carry out its obligations” to recall or terminate the
services of a diplomat declared persona non grata, “the receiving State
m ay refuse to recognize the person concerned as a member of the
mission.” (Emphasis added.) You have asked us whether this remedy
spelled out in Article 9, permitting the United States to strip diplomatic
personnel of their diplomatic status if they have not left this country
*A s indicated below , the P resident’s p o w er to com pel the d eparture o f diplom ats accredited to the
United N ations has been, subsequent to the ratification by the Senate o f the C onvention on the
Privileges and Im m unities o f the U nited N ations in 1970, essentially the same as his pow er to expel
diplom atic personnel accred ited to this co u n try . This O ffice cu rren tly has under consideration at the
request o f the Legal A dviser o f the D epartm ent o f State the question w hether diplom ats accredited to
the U nited N ations enjoy the same im m unity from application o f paragraphs (27) and (29) o f 8 U.S.C.
§ 1182(a) to their entering this co u n try as diplom atic personnel accredited to the U nited States possess
by virtue o f 8 U .S .C §1102.
5E. D enza, D iplom atic L aw 40 (1976) [hereafter Denza].
*T he records o f the International L aw Com m ission reflect that the term ination o f functions option
is intended to apply prim arily to persons w h o are nationals o f o r perm anently resident in the receiving
state.
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after a reasonable period of time7 subsequent to their being declared
persona non grata is, in effect, the exclusive remedy of the President to
enforce Article 9. Stated another way, the question is whether, consist­
ent with the Vienna Convention, the President through his agents may
forcibly expel foreign diplomatic personnel from the United States
subsequent to their being declared persona non grata. We believe that,
consistent with the Vienna Convention, the President may do so.
It has long been customary for the sending states to withdraw diplo­
mats voluntarily when those diplomats have been declared persona non
grata. Thus, as indicated above, in American practice it has apparently
never been necessary forcibly to expel such a diplomat. Although the
Vienna Convention is silent on the question of the right of the receiving
state forcibly to expel a diplomat after declaring him persona non grata,
there is support in both customary practice and in the negotiating
record of the Convention for the taking of this action by the receiving
state following that determination. One authority cites the fact that the
early cases reflecting this practice “are all described as cases of ‘expul­
sion.’ ” 8 This authority comments further that the practice of request­
ing recall replaced expulsions “in the more placid political climate of
the nineteenth century.” 9
We believe that this history suggests why the Vienna Convention
itself does not specifically spell out the right of a receiving state
forcibly to expel a diplomat. We would add that H2 o f Article 9, read
literally, does not purport either to require the receiving state to strip a
foreign diplomat of his diplomatic status in this situation or suggest that
remedy is the receiving state’s exclusive remedy to deal with a situation
in which the sending state has not fulfilled its clear obligation under
Article 9 to withdraw its diplomat or to itself terminate the person’s
diplomatic status. Nothing in logic supports the proposition that we
should assume the right to expel was abandoned as a matter of custom­
ary international law even though it was not specifically spelled out in
the Vienna Convention.10 In this connection, we note that the preamble
to the Convention affirms “that the rules of customary international law
should continue to govern questions not expressly regulated by the
provisions of the present Convention.” The Vienna Convention, by
remaining silent on the question of expulsion, in no way precludes a
receiving state from taking this action.
The position of the United States delegation to the United Nations
Conference which drafted the Convention reflects the understanding of
the U.S. government that a receiving state may require the departure of
7T he drafting history o f A rticle 9 o f the C onvention indicates that the “reasonableness” o f the
period follow ing a persona non grata action is largely dependent on the attendant circum stances. These
circum stances may be such as to w arrant the receiving state’s dem and for im m ediate action.
8 D enza, at 40.
9Id., at 41.
10Id., at 135-36.
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a member of the diplomatic mission. In commenting on the question of
allowing a “reasonable period” in which the sending state must act
following a persona non grata determination, the delegation stated: “[I]n
aggravating circumstances, or where national security is involved,
the receiving State may demand his [the diplomat’s] immediate
departure. . . . ” (Emphasis added.)
Further evidence of the United States’ interpretation of customary
international law and the practice of the government with respect to
the expulsion of diplomats is found in the testimony of Department of
State Legal Adviser Leonard Meeker before the Senate Foreign Rela­
tions Committee which considered proposed ratification of the Vienna
Convention in 1965. Referring to the provision of the Convention
(Article 41) which requires persons enjoying diplomatic privileges and
immunities to respect the law of the receiving state, the Legal Adviser
stated: “[I]f the situation becomes serious enough, we would have to in
certain cases perhaps require the departure of members of the diplo­
matic missions as we have a right to require and will have that right under
the Convention, ju st as we do now. ” 11 (Emphasis added.)
Since 1965, the government has publicly voiced its views concerning
the right to expel diplomats. For example, in its report issued regarding
the ratification of the Convention on the Privileges and Immunities of
the United Nations, the Senate Committee on Foreign Relations paid
special attention to several reservations to the proposed Convention,
one of which stated that:
Persons who are entitled to diplomatic privileges and
immunities under the Convention shall not be required to
leave the United States otherwise than in accordance with
the customary procedure applicable to members of diplo­
matic missions accredited or notified to the United States.
Ex. Rep. No. 17, 91st Cong., 2nd Sess. 5 (1970).
On its face, this reservation clearly assumes the existence of a
nonstatutory, presidentially controlled and supervised procedure for the
expulsion of foreign diplomatic personnel. More importantly for present
purposes, the Senate Committee went on to state in its report:
As a final recourse, under the proposed reservation and
present law, the United States can compel the departure
from its territory of anyone declared persona non grata
12
" Exec. H. 88th C ong., 1st Sess. 9 (1965).
12 W e note that in the report to the President from the Secretary o f State o f N ovem ber 6, 1969,
recom m ending transm ittal o f the C onvention to the Senate for advice and consent to ratification, the
term s “com pel” and ’‘d e p artu re ,” ' ‘expulsion” and “ expelled” are used interchangeably. F urtherm ore,
that rep o rt contains no reference w h atso ev er to the Im m igration and N ationality A ct, w hich was
apparently assumed not to apply to this issue at all.
212
Thus, it is unquestioned that the United States has traditionally main­
tained, and continues to maintain, the legal position consistent with
prevailing rules of international law and practice and the Vienna Con­
vention on Diplomatic Relations, that the receiving state has the right
to require the departure, following persona non grata action, of alien
nonresident members of the staff of a diplomatic mission.13
An argument that a diplomat may not be forcibly expelled by a
receiving state could be made based on the principle articulated in
Article 29 of the Vienna Convention that the “person of a diplomatic
agent shall be inviolable” and that such a person “shall not be liable to
any form of arrest or detention.” We are not persuaded by that argu­
ment for several reasons. First, these provisions of Article 29 cannot
and have not been read to mean that a diplomat’s movement is not
subject to any control, see Article 26 of the Vienna Convention, or that
he cannot be prevented from taking action which violates the domestic
law of the receiving state. [1957] 2 Y.B. Int’l L. Comm’n. 138.14 For
example, the Department of State has taken the position that foreign
diplomats may be escorted off the New Jersey Turnpike when found to
be speeding, even though they were clearly not subject to arrest for
that offense.15 We assume there would be no doubt that a foreign
diplomat could be physically restrained from committing an assault on
the streets of Washington, D.C., even though once again not subject to
arrest for that assault, and that action could be taken without raising
any substantial question under the Vienna Convention. In our view, an
order of the President declaring foreign diplomats persona non grata
with an accompanying order to depart the United States constitutes a
legal determination under United States law that may be enforced in
similar fashion so long as the foreign diplomat affected is treated “with
due respect” as provided in Article 29.16
Under the analysis above, we believe the President has the constitu­
tional power forcibly to eject diplomatic personnel declared by him to
13 International law w ith respect to the treatm ent o f consular officers and consular staff parallels
that w ith respect to diplom ats; A rticle 23 o f the V ienna C onvention on C onsular Relations contains
language nearly identical to that o f paragraphs 1 and 2 o f A rticle 9 o f the V ienna C onvention on
D iplom atic Relations. U nder this A rticle the receiving state may declare a consular officer persona non
grata o r a staff m em ber unacceptable and may w ithdraw recognition o r cease to consider the person as
a m em ber o f the consulate if the sending state refuses to recall the person o r term inate his functions
“ w ithin a reasonable tim e.” T h e official records o f the U N C onference w hich adopted this article
clearly reflect the intention to prescribe rules relating to the determ ination that a m em ber o f a
consulate is persona non grata o r no longer acceptable w hich are virtually the sam e as those relating to
members o f a diplom atic mission. T he conferees specifically rejected proposals w hich w ould place
consular personnel in a m ore advantaged position vis-a-vis diplom atic personnel. Thus, w e conclude
that consular personnel may similarly be required to depart the receiving state follow ing persona non
grata action. I Official R ecords UN C onference on C onsular R elations 209-217.
u I d . at 136.
15Hearings on Exec. H. Before a Subcom mittee o f the Senate C om mittee on Foreign Relations 20 (1965)
(drunk diplom at could be “haul[edj o ff by the scru ff o f his neck” ).
16W e believe the phrase “due respect” must be read to authorize the use o f the minimum level o f
force necessary to deal w ith any resistance by diplom atic personnel to their expulsion. Likew ise, that
phrase in no w ay precludes personnel enforcing a presidential o rd e r from using reasonable force to
defend them selves from violent acts against their persons.
213
be persona non grata from the United States and that the exercise of that
power would be consistent with international law.
2. Diplomatic property
The President has sole power to recognize foreign countries and to
determine the acceptability of their ministers; inherent in this authority
is the implied power to control physical access to embassy premises in
the United States. This includes the power to take necessary action to
protect embassies from damage, and the power to deny possession to or
eject those not recognized as diplomatic personnel of the sending state.
As with the expulsion of diplomatic personnel, an argument can be
made that the President’s power over the physical premises of diplo­
matic properties is limited by the principle set forth in Article 22 of the
Convention that the premises of an embassy are “inviolable.” This
principle of inviolability is generally taken to mean that agents of the
United States may not enter without consent of the head of the mission.
At the same time, Article 22 imposes a duty on the receiving state to
take “all appropriate steps to protect the premises of the mission against
any intrusion or damage and to prevent any disturbance of the peace of
the mission.”
Article 45 of the Convention, however, modifies these commands
somewhat in cases where, as here, the diplomatic personnel are tempo­
rarily recalled. It requires the receiving state to “respect and protect
the premises of the mission, together with its property and archives,”
and authorizes the sending state to trust custody of the premises to a
third state acceptable to the receiving state.
It is plain from the background of the Convention that the duty in
Article 45 to “respect and protect the premises” does not mean full
inviolability. Denza, supra, at 281. Although it is not clear when invio­
lability ends, analogy to our discussion above of Article 29 regarding
termination of personal immunity suggests that inviolability should con­
tinue for a reasonable time after the premises cease to be used for
diplomatic purposes. In turn, this suggests that if the premises are used
for purposes incompatible with a diplomatic mission, such as an armed
occupation, inviolability should cease at that point. In view of this, the
Convention’s provisions in Articles 22 and 45 protecting the integrity of
the embassy premises suggest ample authority to control access to
diplomatic property in these circumstances.
B. Federal Statutory L aw
1. Diplomatic personnel
The President’s exclusive power over foreign diplomatic personnel as
a matter of domestic law is explicitly and implicitly recognized in the
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statute most directly relevant to the issues at hand, the Immigration and
Nationality Act of 1952. Under § 102 of that Act, 8 U.S.C. § 1102,
diplomatic personnel are generally exempt from the provisions of the
Act “relating to ineligibility to receive visas and the exclusion or
deportation of aliens.” The legislative history of § 102 indicates clearly
that the Congress, in leaving these matters to the President, was simply
recognizing the constitutional limitations on its ability to control or
regulate the President’s constitutional power to receive (and expel) the
foreign representatives of countries with whom we have diplomatic
relations. See H.R. Rep. No. 1365, 82nd Cong., 2nd Sess. 34 (1952).
We believe this congressional recognition of the President’s exclusive
power to deal with foreign diplomatic personnel is relevant to a deter­
mination of the extent to which foreign diplomatic personnel, between
the time they are declared persona non grata and the time they depart
the United States or are forcibly expelled from the United States, may
assert some legal entitlement to remain in the United States under the
Immigration and Nationality Act. We do not believe they have any
such entitlement during that period.
Both immigrant and nonimmigrant aliens, whether in this country
legally or illegally, are generally entitled to claim various rights to
remain in this country should it otherwise be determined that they are
deportable. Indeed, § 241(e) of the Immigration and Nationality Act, 8
U.S.C. § 1251(e), recognizes that diplomatic personnel who fail to main­
tain their status as diplomatic personnel may not, when they lose their
status, be required by the Attorney General to depart the United States
without the approval of the Secretary of State except under certain
limited circumstances. Thus, the Immigration and Nationality Act rec­
ognized that diplomatic personnel may lose their status and, in doing
so, become legally entitled to assert other rights to remain in the United
States. The question, however, is whether diplomatic personnel, so long
as they are deemed by the President to retain that status, may claim
statutory entitlements to remain in this country after they have been
declared persona non grata and ordered to depart the United States.
In addressing this issue, we would first note that a construction of the
Immigration and Nationality Act which would permit foreign diplo­
matic personnel having been declared persona non grata and ordered to
leave the country to assert other legal rights to remain in this country
and therefore, by virtue of the process to which they would be entitled,
at the very least substantially delay their departure, would directly
impinge on the President’s power under the Constitution to deal with
diplomats and to conduct our foreign relations. Particularly where the
order for foreign diplomatic personnel to depart is directly related to
the conduct of important foreign relations, which it clearly would be
with regard to Iranian diplomatic personnel, we believe there would be
a strong presumption against implying that Congress, by statute, gave
215
such diplomatic personnel the means to frustrate a decision by the
President. Cf. N arenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) cert,
denied, 446 U.S. 957 (1980). Generally, statutes should not be read to
conflict with the Constitution, Crowell v. Benson, 285 U.S. 22, 62 (1932),
treaties, United States v. Lee Yen Tai, 185 U.S. 213, 221-22 (1902), or
the law of nations, Lauritzen v. Larsen, 345 U.S. 571, 578 (1953).
As indicated above, § 102 of the Act, 8 U.S.C. § 1102, generally sets
foreign diplomatic personnel apart from other classes of nonimmigrants
for purposes of the Act. There would appear to be no judicial prece­
dent regarding what rights foreign diplomatic personnel might have to
interpose legal objections based on federal substantive law to their
being expelled from the country on order of the President. One line of
authority, however, dealing with persons paroled into this country
pursuant to § 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5), supports our
conclusion that foreign diplomatic personnel should be viewed as
having no such rights.
Under § 212(d)(5), the Attorney General is authorized to parole aliens
into the United States under certain circumstances. Notwithstanding the
fact that such parolees are physically within the United States, the
Supreme Court has held that they are not entitled to assert any legal
entitlement to remain in the country beyond the terms upon which they
were paroled into the country even though, as a factual matter, they
might otherwise qualify under the Immigration and Nationality Act to
remain in the United States or at least to receive the Attorney Gener­
al’s consideration of their claim to legal entitlement to remain in the
United States. See Leng M ay M a v. Barber, 357 U.S. 185 (1958).
Although parolees, unlike foreign diplomatic personnel, do not tech­
nically have “nonimmigrant” status, both classes of persons are phys­
ically present in this country. In the case of parolees, the courts have
determined that they have no entitlement to assert any legal right to
remain in the country because they have not “entered” the country
even though, as indicated above, they may be physically present not
only at the border but indeed within the interior of the United States. A
district court has summed up this concept of entry by stating that entry
“means freedom from governmental restraint . . . Klapholz v.
Esperdy, 201 F. Supp. 294, 297 (S.D. N.Y. 1961). These cases clearly
establish the proposition that the Constitution does not itself affect the
power of the Congress or the President to effect the removal of some
classes of persons within our physical borders summarily.
In short, we do not believe that foreign diplomatic personnel have
any statutory right to assert any legal entitlement to remain in the
United States once they have been declared persona non grata and have
been ordered to leave the country. This reading of the Immigration and
Nationality A ct is consistent with and supported by the doctrine, dis­
cussed supra, that statutes should be construed to avoid raising doubts
216
as to their constitutionality, Crowell v. Benson, supra; Broadrick v.
Oklahoma, 413 U.S. 601 (1973). It is also consistent with the most
recent expression by the Senate touching on this issue.
In its report regarding the ratification of the Convention on the
Privileges and Immunities of the United Nations, the Senate Committee
on Foreign Relations paid special attention to several reservations to
the proposed Convention, one of which stated:
Persons who are entitled to diplomatic privileges and
immunities under the Convention shall not be required to
leave the United States otherwise than in accordance with
the customary procedure applicable to members of diplo­
matic missions accredited or notified to the United States.
Ex. Rep. No. 17, 91st Cong., 2nd Sess. 5 (1970). On its face, this
reservation clearly assumes the existence of a nonstatutory, presiden-
tially controlled and supervised procedure for the expulsion of foreign
diplomatic personnel. More importantly, for present purposes, the
Senate Committee went on to state in its report (id.):
As a final recourse, under the proposed reservation and
present law, the United States can compel the departure
from its territory of anyone declared persona non
grata. . . .
A separate question arises whether a foreign diplomat having been
declared persona non grata and ordered to leave the United States could
frustrate or delay the execution of that order either by himself renounc­
ing his status as a foreign diplomat or having his diplomatic credentials
revoked by his government. Although the issue is not free from doubt,
we believe that neither the individual act of a foreign diplomat nor an
act of the sending state which would substantially undermine the for­
eign policy objective of the President should be permitted to do so.
Thus, were the President to determine that the quick and sure expulsion
of an identified group of foreign diplomats would significantly advance
the foreign policy interests of the United States, we would not read
either international law, i.e., the Vienna Convention, or domestic law,
i.e., the Immigration and Nationality Act of 1952, as permitting the
frustration of that foreign policy objective and the President’s constitu­
tional authority to carry it out. Under Article 9 of the Convention,
failure of the sending state to withdraw its diplomatic personnel in such
situations specifically entitles the receiving state to strip the foreign
diplomatic personnel involved of their status as diplomats. We see no
logical reason to suggest that Article 9 does not implicitly recognize
the power of receiving states to take action short of totally withdraw­
ing that status and the immunities that accompany that status. As
indicated in Part I of this memorandum, we believe the President
constitutionally may do so. In this situation, the status of the diplomatic
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personnel does not necessarily revert to one of being merely “illegal
aliens” in the United States.
This analysis also would apply, we believe, to a situation in which a
foreign diplomat, rather than complying with a directive to depart the
United States, went into hiding and was later found after the scheduled
date for his departure had passed. In such a situation, we see no reason
to recognize that act as bringing him within the protection of the
Immigration and Nationality Act any more than a similar act commit­
ted by a parolee. W hether Congress could constitutionally provide such
protections for “ex-diplomats” is a question we need not address; we
simply conclude that Congress has expressed no intent in the Immigra­
tion and Nationality Act for such foreign diplomats to receive the
benefits of the United States domestic law as a result of their defiance
of an order issued by the President. Rather, Congress by its silence has
left to the President the determination of when, for domestic law
purposes, a foreign diplomat may lose that status and secure the benefits
of our domestic law.
Notwithstanding the clear constitutional power of the President to
receive ambassadors and public ministers, their status as nonimmigrant
aliens under the Immigration and Nationality Act may make it prudent
for the Executive to take certain actions that might make it more
difficult for a recalcitrant Iranian diplomat to challenge successfully the
President’s decision in a federal court. Certain sections of the Act,
particularly §§245 and 248, U.S.C. §§ 1255 and 1258 might be invoked
as allowing a nonimmigrant to apply, as any other nonimmigrant may
apply, to adjust his status or to change his classification. Since those
sections entitle an alien “who is continuing to maintain” his nonimmi­
grant status to make such applications, it would seem prudent for the
Executive to use powers conferred by the Immigration and Nationality
Act which might forestall this eventuality. Section 22 l(i) of the Immi­
gration and Nationality Act, 8 U.S.C. § 1201(i), provides that after the
issuance of a visa “the Secretary of State may at any time, in his
discretion, revoke such visa or other documentation. Notice of such
revocation shall be communicated to the Attorney General and such
revocation shall invalidate the visa or other documentation from the
date of issuance.” Thus, if the Secretary revoked the visas of diplomats
who were declared persona non grata, the effect would be to cancel the
diplomat’s nonimmigrant status, with the result that his arguable entitle­
ment to adjustment would disappear.
While termination of the status of a diplomat is rare in our practice,
this is precisely what was done in 1961 in the case of Miroslav
Nacvalac, a member of the Permanent Mission of the Czechoslovak
Socialist Republic to the United States. The record indicates that prior
to the revocation of Mr. Nacvalac’s status under § 101(a)(15)(G) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(G), he had
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indicated an interest in discussing the possibility of remaining in the
United States. In Press Release 421 dated June 21, the Department of
State indicated that the effect of the revocation of Mr. Nacvalac’s
status “is to place [him] in the category of an alien illegally in the
United States of America.” The press release continued: “Under the
laws and regulations of the United States of America, Nacvalac may
elect to depart voluntarily or in lieu of such voluntary departure, be
removed.” A footnote to the press release, which was reprinted in the
Department of State Bulletin Vol. XLV, page 67, indicated that Mr.
Nacvalac left the United States the next day.
There have been only two decided cases in which a judge has
confronted the question of visa revocation by the Secretary of State. In
the first case there was no opinion. The second case, which was
decided last year, is Knoetze v. United States, A ll. F. Supp. 201 (S.D.
Fla. 1979), a f f d 634 F.2d 207 (5th Cir.), cert, denied 454 U.S. 823(1981). In that case Judge Rottger of the United States District Court
for the Southern District of Florida sustained the Secretary’s power to
revoke visas. However, in his opinion he expressed concern that, when
an alien whose visa was being revoked was in the United States, he did
not have an administrative mechanism to insure that a revocation had
not been erroneous. To meet this point, we believe that if it is decided
for reasons of prudence to revoke visas of certain Iranian diplomats, the
Department of State should establish an informal board of review to
consider claims that revocation had been based on a mistake of fact.
In summary, we believe that the President has the authority to
require the removal from the United States of diplomats declared per­
sona non grata. However, we believe that prudence dictates that in
certain cases we should revoke the visas of such diplomats in order to
forestall invocation of sections of the Immigration and Nationality Act
as a basis for challenging the President’s decision. We believe that by
using the revocation power, the government could demonstrate to a
court that an objecting diplomat or consul had no colorable claim for
relief under the terms of the Act.
2. Diplomatic property
Protection of embassy premises and diplomatic personnel is generally
performed by the Secret Service’s Uniformed Division under 3 U.S.C.
§ 202, which provides that, subject to the supervision of the Secretary
of the Treasury, the Division shall perform “such duties as the Direc­
tor, United States Secret Service, may prescribe in connection with the
protection of the following . . . (4) foreign diplomatic missions located
in the metropolitan area of the District of Columbia; . . . and (8)
foreign diplomatic missions located in such areas in the United States,
its territories and possessions, as the President, on a case-by-case basis,
219
may direct. The members of such force shall possess privileges and
powers similar to those of the members of the Metropolitan Police of
the District of Columbia.”
This statute first extended protection to diplomatic missions in 1970,
in response to concern that the Metropolitan Police were providing
inadequate protection against ordinary crime. Pub. L. No. 91-217, 84
Stat. 74. See generally S. Rep. No. 659, 91st Cong., 2d Sess. (1970). The
extent of the “protection” that may be afforded is otherwise undefined
in the legislative history. The ordinary meaning of the term suggests
safeguarding the premises against damage or theft, and the personnel
against assaults. The duty imposed on the United States by the Vienna
Convention to protect mission premises even after the recall of the
personnel strongly suggests that the Secret Service’s duties do not end
with the sealing of a mission. Where recall is temporary, as here, there
presumably must be a mission to which the personnel may return when
relations improve. Thus, the Service has present duties to protect Ira­
nian diplomatic property against third parties. These duties will extend
to the consulates, however, only if the President so directs the Service.
More difficult questions surround the power of the Service regarding
nondiplomatic persons who assert the permission of the sending state to
enter. Here, because the President has sole power to determine what
governments and ministers are to be recognized, we believe there is
implied power for the President to direct the Service to forbid access
to* those not currently recognized as accredited diplomatic personnel to
ensure that only those having diplomatic business with the embassy
have access to it.
Under 18 U.S.C. §970, damage or unauthorized occupancy of a
diplomatic mission is a crim e.17 This provision, passed in response to
terrorism at the Munich Olympics and elsewhere, is part of the “Act
for the Prevention and Punishment of Crimes Against Internationally
Protected Persons,” Pub. L. No. 94—467, 90 Stat. 1997. This statute
17 (a) W hoever willfully injures, dam ages, o r destroys, o r attem pts to injure, dam age, or
destroy, any property, real o r personal, located w ithin th e U nited States and belonging to
o r utilized o r occupied by any foreign governm ent o r international organization, by a
foreign official o r official guest, shall be fined not m ore th an $10,000, o r im prisoned not
m ore than five years, o r bo th .
(b) W noever, willfully w ith intent to intim idate, coerce, threaten, o r harass—
(1) forcibly thrusts any p art o f him self o r any o bject w ithin or uport that portion o f any
building o r premises located w ithin the U nited States, w hich portion is used or
occupied fo r official business o r for diplom atic, consular, o r residential purposes by—
(A ) a foreign governm ent, including such use as a mission to an international
organization . . . ;
(2) refuses to d ep art from such portion o f such building o r premises after a request—
(A ) by an em ployee o f a foreign g o vernm ent o r o f an international organization, if
such em ployee is authorized to m ake such request by the senior official o f the unit
o f such g o vernm ent o r organization w hich occupies such portion o f such building or
premises; . . .
(D ) by anv person present having law enforcem ent pow ers;
shall b e fined not m ore th an $500 o r im prisoned not m ore than six m onths, o r both.
220
surely provides authority for measures designed to protect the embassy
against entry by anyone who has no permission from the government of
Iran. Whether this ban can include those purportedly authorized access
by the Iranian government but not recognized as accredited personnel
by the United States may be less clear. Section 970 refers to 18 U.S.C.
§ 1116(b) for its definition of the foreign government whose premises
are protected, and includes countries “irrespective of recognition by the
United States.” The foreign officials entitled to demand that unauthor­
ized persons depart the premises are defined, however, as those “duly
notified to the United States as an officer or employee of a foreign
government.” 18 U.S.C. § 1116(b)(3)(B). Thus, the statute appears not
to authorize unaccredited foreign persons to demand the exit of others
from diplomatic premises. When the accredited personnel have been
expelled, this definition implies added scope to the authority under
§ 970(b)(2)(D) of “any person present having law enforcement powers”
to order departure from the mission as necessary.
This federal statute was not meant to “relieve any person of any
obligation imposed by any law of any state, . . . or the District of
Columbia.” H.R. Rep. No. 1614, 94th Cong., 2d Sess. 8 (1976). Because
this statute was explicit in its refusal to preempt local criminal law, the
Secret Service and the Metropolitan Police should have powers so
conferred available to them. See Fatemi v. United States, 192 A.2d 525(D.C. Ct. App. 1963) (holding that Iranian students occupying the
embassy against the wishes of the Minister could be convicted of
“unlawful entry” under the D.C. Code).
Finally, we believe that the Federal Bureau of Investigation (FBI)
may participate in controlling access to diplomatic property under its
general enabling authority, 28 U.S.C. § 533:
The Attorney General may appoint officials—
(1) to detect and prosecute crimes against the United
States;
(2) to assist in the protection of the person of the
President; and
(3) to conduct such other investigations regarding
official matters under the control of the Depart­
ment of Justice and the Department of State as
may be directed by the Attorney General. . . .
The presence of 18 U.S.C. §970, making unauthorized entries into
diplomatic property a federal crime, is sufficient to invoke FBI jurisdic­
tion under § 533(1).
We would add that because actions taken to carry out the President’s
order for diplomats to leave this country are incident to an exercise of
his constitutional power, they neither rely on statutory authority for
direct support nor are subject to the restrictions of the Posse Comitatus
221
Act, 18 U.S.C. § 1385, which generally restricts the use of Army or Air
Force personnel to enforce civilian criminal law. In addition, 18 U.S.C.
§ 1116(d) specifically permits the use of military personnel from all the
Armed Forces to enforce 18 U.S.C. §970. Thus, we believe that the
President is entitled to call on the full range of his resources in the
Executive Branch to achieve the objectives discussed herein. In addi­
tion, § 1116(d) permits the President to draw on the resources of state
or local law enforcement agencies in this situation.
III. The Due Process Clause of the Fifth Amendment
The final question presented by the expulsion of foreign diplomatic
personnel from the country is whether the Due Process Clause of the
Fifth Amendment requires that any kind of process be observed prior
to their expulsion. This Office has previously taken the position that
foreign diplomatic personnel derive their legal rights from their status
as diplomats under international law. We believe the Due Process
Clause is implicated, if at all, only with regard to the determination
whether a person about to be forcibly expelled from the United States
pursuant to an order of the President is in fact the person the President
ordered to be expelled. Pursuant to our meeting of March 28, 1980,
with representatives of the Department of State, we understand that a
procedure reasonably calculated to ensure expulsion only of those per­
sons previously ordered to be expelled by the President will be utilized.
In these circumstances, we believe that the Due Process Clause, if
applicable at all, would be fully satisfied and therefore we pretermit
further discussion of that issue.18
John M . H arm on
Assistant Attorney General
Office o f Legal Counsel
18 An issue related to the question of the applicability o f the Constitution to the forcible ejection of
a foreign diplom at from the United States is the extent to w hich the order of the President w ould be
subject to judicial review. Because a foreign diplom at being forcibly ejected w ould arguably be in the
“custody” o f the President’s agents w ho w ere carrying out the President’s order to depart, there might
be a colorable claim that a w rit o f habeas corpus pursuant to 28 U.S.C. § 2241(c)(4) w ould be
available. U nder o ur analysis above, w e believe that the only claim upon w hich a w rit o f habeas
corpus could even arguably be granted in this situation w ould be a claim that the person bringing the
action is not in fact the same person as the foreign diplom at ordered to leave the country by the
President. As indicated above, a procedure designed reasonably to ensure that such a mistake is not
made should reduce litigation risks to the minimum.
222