Supplementary Discussion of the President's Powers Relating to the Seizure of the American Embassy in Iran ( 1979 )

Supplementary Discussion of the President’s Powers Relating
to the Seizure of the American Embassy in Iran
U n d er th e V ien n a C o n v e n tio n on D ip lo m atic R elations, d ip lo m ats are not su b je ct to any
form o f arre st o r d e te n tio n even in case o f arm ed co n flict, th o u g h th eir m o v em en ts
m ay be restricted . Ira n ’s c o n d u c t m ight be invoked in this case as a g ro u n d for
su sp en d in g th e C o n v e n tio n , in w h ic h case n o n -fo rcib le reprisals ag ain st its d ip lo m a ts in
this c o u n try m ay be used.
T h e P resid en t m ay use his c o n stitu tio n a l p o w e r to p ro te c t A m erican s ab ro ad , su b je ct to
th e c o n su lta tio n an d re p o rtin g req u irem en ts o f the W ar P o w e rs R esolution. W hile not
u n co n stitu tio n al o n th eir face, these req u irem en ts m ay h a v e a p p licatio n s w h ic h raise
co n stitu tio n al q u estio n s insofar as th ey lim it th e P re sid e n t’s p o w e r as C o m m an d er-in -
C hief.
T h e In tern atio n al E m e rg e n c y E co n o m ic P o w ers A c t and th e N atio n al E m e rg en cies A c t
to g e th e r a u th o riz e th e b lo ck in g o f Iranian assets and th e su b seq u en t licensing o f
p a rticu lar tran sactio n s. T h e se sta tu tes specify th e p ro c e d u re s to be follow ed in the
ev en t su ch a co u rse is fo llow ed.
Novem ber 11, 1979
M EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L
In response to your request we are providing additional details on
some of the m atters discussed in our memorandum o f N ovem ber 7,
1979.
I. Treatment of Iranian Diplomats in the United States
T he Vienna C onvention on Diplom atic Relations, Apr. 18, 1961, 23
U.S.T. 3227, T.I.A .S. No. 7502, ratified by Iran, the United States and
all m ajor countries o f the world, codifies the law in this area. It is
assumed to be self-executing and thus part o f dom estic law as w ell.1
A rticle 29 provides that a diplomat shall not be liable to any form of
arrest or detention. Im m unity continues even in case o f armed conflict
(Art. 39.2). T he United States vigorously opposed the latter provision
at the time o f drafting, stating that it was unrealistic and did not
represent universal practice. T he delegation pointed out that almost
'See, e.g., L etter from Assistant A tto rn ey G eneral Dixon to the A cting Legal A dviser, M ay 4, 1973,
in the 1973 Digest o f U nited States Practice in In t’l L. 143, 144. T h e enactm ent o f the D iplom atic
Relations A ct, P.L. 95-393, 22 U.S.C. §254a et seq. (Supp. II 1978), does not affect this conclusion.
T he A ct does not purport to apply to stituations covered by the C onvention but com plem ents the
C onvention by prescribing rules for non-parties and for m atters not covered explicity in the C onven­
tion, such as liability insurance.
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every governm ent involved in W orld W ar II placed restrictions of
some kind on the m ovem ent o f enemy diplomats and the w ithdraw al of
their property. T he United States proposed an am endm ent w hich might
well have applied here. It w ould have authorized the host state in time
o f national em ergency, civil strife, or armed conflict to institute appro­
priate measures o f control with respect to mission funds and persons
enjoying privileges and immunities and their property, including protec­
tive custody to insure their safety. It was defeated, how ever, by a vote
of 38 to 6 with 26 abstentions. 7 M. W hitem an, Digest o f I n t’l Law 441.
Despite this record there are a num ber o f approaches which can be
used to mitigate the prohibition mentioned.
A. Protective Custody
A rticle 26 makes freedom o f travel subject to “ laws and regulations
concerning zones entry into w hich is prohibited or regulated for rea­
sons o f national security.” T he dom estic legislative history o f the C on­
vention shows that “protective custody” could be justified under this
provision. T he State D epartm ent Legal A dviser testified before the
Senate Foreign Relations Com m ittee that this provision could be used
in situations involving armed conflict to justify placing diplomats in
protective custody. H e pointed out that while A rticle 29 prohibits
arrest, it also provides that the host state shall take appropriate steps to
prevent attacks on a diplom at’s person, freedom, and dignity. 7 M.
W hiteman, supra at 442. A rticle 26 is not limited to times o f armed
conflict. It is, in fact, used on an ongoing basis to restrict travel of
foreign diplom ats particularly w here their countries impose restrictions
on United States diplomats. Despite the reference to “ laws and regula­
tions” in A rticle 26, the State D epartm ent informs us that there is no
special procedure for imposing such restrictions. T he appropriate em­
bassy is merely informed o f the restrictions.
T he protective custody approach has one distinct advantage in that it
may not technically constitute an arrest and authority can be gleaned
from the text and dom estic legislative history o f the Convention. As we
show below, it may be that we are no longer bound by the inhibition of
A rticle 29 against arrest. This would, how ever, merely eliminate the
prohibition; it w ould not, in itself, provide a valid ground under domes­
tic law for arrest w hich presumably could then be challenged for
illegality as any other arrest may be.
B. Reciprocity
A rticle 47.2(a) permits us to apply any o f the provisions o f the
Convention restrictively because o f a restrictive application o f a provi­
sion to our embassy in Iran. It may, of course, be something o f a
m isnomer to describe the conduct o f the occupiers o f the American
embassy as a “ restrictive” application. Since that governm ent appears,
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how ever, to have adopted this conduct as its own, w e w ould appear
justified in similarly restricting the movem ent o f Iranian diplomats.
T he D iplom atic Relations Act, supra note 1, reinforces the use of
A rt. 47 by similarly providing for restriction of immunity:
T he President may, on the basis o f reciprocity and
under such term s and conditions as he may determine,
specify privileges and immunities for members o f the mis­
sion, their families, and the diplomatic couriers o f any
sending state w hich result in m ore favorable treatm ent or
less favorable treatm ent than is provided under the
Vienna Convention.
22 U.S.C. § 254c. T he legislative history shows that this was intended
to be used as a tool to respond to arbitrary treatm ent o f Am erican
diplomats:
The conditions under w hich U.S. diplomatic personnel
carry out their official functions and lead their lives in
certain hardship areas dictate their enjoym ent of increased
protection from harassment as a result o f arbitrary appli­
cation o f local law. This provision permits less favorable
treatm ent than the Vienna C onvention and covers those
cases w here certain nations restrict the privileges and
immunities o f U.S. diplomatic personnel abroad. Any use
of the discretion described in this section must be on a
reciprocal basis with the nations involved.
S. Rep. No. 958, 95th Cong. 2d Sess. 5 (1978).
C. Suspension o f Convention fo r Breach
T he discussion above has proceeded on the assumption that the
Convention is still in force. T here has, how ever, been a material breach
on the part o f the Iranians’ treaty obligation to protect our embassy and
diplomats. In such a case, the United States may invoke the Iranian
conduct as a ground for suspending the operation o f the Convention in
whole or in part as far as the Iranians are concerned. Vienna C onven­
tion on the Law o f Treaties, A rt. 60, Senate Exec. L., 92d Cong., 1st
Sess. (1971).2 In such a case we can consider ourselves not bound by
the provisions pertinent to the situation at hand, such as immunity from
detention or arrest, or from the whole Convention, should the President
choose. As noted earlier, how ever, this would not by itself provide a
valid legal basis for arrest but merely rem ove immunity from arrest.
A lthough the C onvention provides for the right to leave the country,
2 T his treaty is not yet in force and has not been ratified by the U nited States. It is, how ever,
generally cited as evidencing co n tem p o rary p ractice in this Held. Cf. Chariton v. Kelly, 229 U.S. 447.
473 (1913).
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this could be suspended as well, particularly since Am ericans are being
denied that right in Iran.
D. Reprisals fo r Breach
International law recognizes that, beyond suspending the effect of the
treaty, “non-forcible” reprisals may be used in the case o f breach.
Com m entary on Vienna Convention on L aw o f Treaties, [1966] 2 Y. B.
Int’l L. C om m ’n 169, 253-54, U.N. Doc. A /C N .4 /S E R .A /1 9 6 6 /A d d .l.3
These reprisals may properly relate to the rights o f the Iranians under
the C onvention. Ibid.In evaluating possible reprisals, it is useful in a m odern sense to think
o f them as a m ethod o f com m unication:
Reprisals are usually em ployed when w ords alone cannot
influence the other p arty ’s decision and make it discon­
tinue w hat it is doing. T hey are subordinated to particular
objectives and are used in limited selective, exemplified,
and increm entary ways. Reprisals should be distinguished
from m ere acts o f vengeance or o f destroying the oppo­
n ent’s capabilities. R ather, they are part of a political-
diplom atic strategy for resolving and reconciling conflict­
ing interests. As such, com m unicative signals are built into
them. T he success o f a reprisal may be judged by w hether
it exerts the desired influence on the target, w hether it
stands by itself o r is part o f a credible threat to expand
the conflict further, if necessary. An effective reprisal,
therefore, while seeking to narrow some o f the adver­
sary’s alternatives, should keep other alternatives open.
This may be best achieved when retaliatory acts are un­
derstood to form part o f a com prehensive strategy that
combines negative sanctions with positive inducements.
D avid, T he Strategy o f T reaty Term ination: Lawful Breaches and
Retaliations 234 (Yale Univ. Press, 1975).
A t the present time w e are not aw are o f specific facts which, under
United States law, w ould justify arrest o f individual Iranian diplomats
even if there w ere no bar to their arrest under international law for the
reasons specified. If they could be shown to be part o f a conspiracy (18
U.S.C. § 371) to dam age governm ent property (18 U.S.C. § 1361) there
may be a basis. T he N eutrality A ct and other statutes involving crimes
agajnst foreign governm ents or foreign property are generally directed
to the protection o f foreign states. 18 U.S.C. § 951 et seq.
3T h e term “ non-forcible*' w ould appear to mean not involving the use o f arm ed force as prohibited
by A rt. 2.4 o f the U.N. C h arte r rath er than m erely placing som eone under arrest. T he law o f reprisal
o f an earlier period was not so restricted. 2 O ppenheim 's Int'l Law 114 (L auterpacht ed. 1935); 7
M oore. In t’l Law D igest 119 (1906). T his does not, o f course, limit the President s right to use force to
directly free the hostages.
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II. Use of Armed Forces Abroad
As we noted, the President may use his constitutional pow er to
protect Americans abroad subject to the consultation and reporting
provisions o f the W ar Pow ers Resolution. 50 U.S.C. § 1541 et seq.
A. Consultation Requirement
T he consultation requirem ent focuses on the use o f troops in hostile
situations:
T he President in every possible instance shall consult
with Congress before introducing United States Arm ed
Forces into hostilities or into situations w here imminent
involvem ent in hostilities is clearly indicated by the cir­
cumstances, and after every such introduction shall con­
sult regularly with the Congress until United States
Arm ed Forces are no longer engaged in hostilities or have
been removed from such situations.
50 U.S.C. § 1542.
(1) On its face consultation is required with “Congress.” This lan­
guage replaced an earlier version which merely required consultation
with the leadership and appropriate com m ittees o f Congress. H. Conf.
Rep. No. 547, 93d Cong. 1st Sess. 8 (1973); H. Rep. No. 287, 93d Cong.
1st Sess. 6 (1973). Nevertheless, as a practical m atter consultation with
any more than a select group o f congressional leaders has never been
attem pted. D uring the M ayaguez incident, about ten House- and eleven
Senate members w ere contacted concerning the measures to be taken
by the President. On the House side these included the Speaker, the
m ajority and m inority leaders, and the chairm an and ranking minority
members o f the House Com mittee on International Relations. Testi­
mony o f State D epartm ent Legal A dviser M onroe Leigh in War
Powers: A Test o f Compliance Relative to the D anang Sealift, the Evacu­
ation o f Phnom Penh, the Evacuation o f Saigon, and the M ayaguez Inci­
dent, Hearings before the Subcom m ittee on I n t’l Security and Scientific
Affairs o f the House Comm, on I n t’l Relations, 94th Cong. 1st Sess. 78
(1975) (hereafter War Powers : A Test o f Compliance). T he present
Adm inistration has acknow ledged that there are practical limits to the
consultation requirem ent and has said that meaningful consultations
w ith “an appropriate group of congressional representatives should be
possible.” Statem ent o f State D epartm ent Legal A dviser Hansell before
the Senate Foreign Relations Com m ittee reprinted in State D epartm ent
Bulletin, August 29, 1977 at 291, 292.
(2) A determ ination must also be made as to when hostilities exist
that require consultation. President F ord took the position, for example,
that no consultation was legally required at the D anang or Lebanon
evacuations because hostilities w ere not involved. Franck, A fter the
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Fall: The N ew Procedural Framework fo r Congressional Control Over the
War Power, 71 Am. J. In t’l L. 605, 615 (1977) (hereafter Franck). The
State and Defense D epartm ents have said that “hostilities” means a
situation in w hich A m erican forces are actively exchanging fire with
opposing units and “im minent hostilities” means a situation w here there
is a serious risk from hostile fire to the safety o f U.S. forces. Neither
term was thought to encompass irregular or infrequent violence which
may occur in a particular area. War Powers: A Test o f Compliance at
38-39.
(3) In requiring consultation in “every possible instance,” Congress
m eant to be firm yet flexible. H. Rep. No. 287, supra, at 6.
T he use o f the w ord “ev ery ” reflects the com m ittee’s
belief that such consultation prior to the comm itm ent of
armed forces should be inclusive. In other words, it
should apply in extraordinary and em ergency circum ­
stances—even w hen it is not possible to get formal con­
gressional approval in the form o f a declaration o f w ar or
other specific authorization.
A t the same time, through use o f the w ord “possible” it
recognizes that a situation may be so dire, e.g., hostile
missile attack underw ay, and require such instantaneous
action that no prior consultation will be possible.
Id. (Emphasis in original.)
This A dm inistration has pointed out the problem that exists in em er­
gencies, noting that “ [B]y their very nature some emergencies may
preclude opportunity for legislative debate prior to involvem ent o f the
arm ed forces in hostile or potentially hostile situations.” It has recog­
nized, how ever, that consultation may be had “in the great m ajority of
cases.” Statem ent o f Legal A dviser Hansell, supra.
(4) T here may be constitutional considerations involved in the con­
sultation requirem ent. W hen President Nixon vetoed the Resolution he
did not suggest that either the reporting or consultation requirem ents
w ere unconstitutional. D epartm ent o f State Bulletin, N ovem ber 26,
1973, at 662-64; N either the F ord nor C arter adm inistrations have taken
the position that these requirem ents are unconstitutional on their face.4
N evertheless, there may be applications w hich raise constitutional ques­
tions. This view was stated succinctly by State D epartm ent Legal
A dviser Leigh:
Section 3 o f the W ar Pow ers Resolution has, in my
view, been drafted so as not to ham per the President’s
exercise o f his constitutional authority. Thus, Section 3
leaves it to the President to determ ine precisely how
4 T h e only provision that this A dm inistration has suggested presents constitutional problem s related
to the right o f C ongress to act by co n cu rren t resolution. See 123 C ong. Rec. 21,897 (1977).
128
consultation is to be carried out. In so doing the President
may, I am sure, take into account the effect various possi­
ble modes o f consultation may have upon the risk of a
breach in security. W hether he could on security grounds
alone dispense entirely with “consultation” w hen exercis­
ing an independent constitutional pow er, presents a ques­
tion o f constitutional and legislative interpretation to
which there is no easy answer. In my personal view, the
resolution contem plates at least some consultation in
every case irrespective of security considerations unless
the President determines that such consultation is incon­
sistent w ith his constitutional obligation. In the latter
event the President’s decision could not as a practical
m atter be challenged but he would have to be prepared to
accept the political consequences o f such action, which
might be heavy.
War Powers: A Test o f Compliance at 100.
B. Reporting Requirements
The reporting requirements apply to situations not only w here hostil­
ities are taking place or imminent (w hich requires consultation), but
w here armed forces are sent to a foreign country equipped for combat.
50 U.S.C. § 1543. T he report must be filed within 48 hours. This has
been interpreted as meaning 48 hours from the time that they are
“ introduced” into the situation triggering the requirem ent and not from
the time that the decision to dispatch them is made. E.g., Franck at 615.
T he report must include:
(A) the circum stances necessitating the introduction o f United
States Arm ed Forces;
(B) the constitutional and legislative authority under which
such introduction took place; and
(C) the estimated scope and duration o f the hostilities or
involvement.
R eports which have been filed in -the past have been brief and to the
point; they have not run more than one or tw o pages. T he reference to
legal authority has been one sentence, referring to the constitutional
pow er as Com mander-in-Chief and C hief Executive. See War Powers: A
Test o f Compliance at 75 (Mayaguez); The War Powers Resolution, R ele­
vant Documents, Correspondence, Reports, Subcomm. on Int’l Security
and Scientific Affairs, House Comm, on In t’l Relations, 94th Cong., 1st
Sess. 40 (Danang); 42 (Phnom Penh) (Comm. Print 1975).
129
III. Blocking Assets of Iranians
T he President may direct the T reasury D epartm ent to block assets of
Iranians and to subsequently license particular transactions as desired.
This pow er is provided by the International Em ergency Econom ic
Pow ers Act (the A ct), P.L. 95-223, 91 Stat. 1626, 50 U.S.C. § 1701 et
seq. (Supp. I 1977), in tandem with the National Em ergencies A ct, 50
U.S.C. § 1601. N either A ct has been invoked before, although there are
well-established precedents for employing such controls under similar
prior authority. E.g., Sardino v. F ederal Reserve Bank, 361 F.2d 106 (2d
Cir.), cert, denied, 385 U.S. 898 (1966) (blocking Cuban assets). See
generally 42 Op. A tt’y Gen. 363 (1968).
If this course is to be followed, the following steps must be taken
immediately:
(1) Consultation with Congress: T he consultation requirement tracks
that found in the W ar Pow ers Resolution (discussed in Part II, supra)
and presumably can be interpreted in much the same way. 50 U.S.C.
§ 1703. Security is, o f course, necessary since advance warning will
assist persons potentially affected in evading controls by w ithdraw ing
assets from banks or rem oving currency from the country. Unlike the
situation involving the W ar Pow ers Resolution, the President cannot
argue here that he is exercising a constitutional pow er and thus avoid
statutory restrictions.
(2) Declaration o f a N ational Emergency: A proclam ation o f national
em ergency is necessary to use the powers available under the Act. 50
U.S.C. § 1701. T he President is authorized to declare one pursuant to
the National Em ergencies Act. 50 U.S.C. § 1621. F or purposes o f the
A ct such an em ergency may be declared with respect to any unusual
and extraordinary threat to the national security, foreign policy, or
econom y o f the United States w hich has its source outside this country.
50 U.S.C. § 1701. This language was left broad to provide necessary
discretion. H. Rep. No. 459, 95th Cong., 1st Sess. 10 (1977). We believe
that the present em ergency meets the language o f the statute.
A declaration can be short and to the point. T he President in this
case could state: “I find that the situation in Iran constitutes an unusual
and extraordinary threat to the national security, foreign policy and
econom y o f the United States and hereby declare a national em er­
gency.” 5 T he courts will not review a determ ination so peculiarly
within the province o f the President. See 42 Op. A tt’y Gen. at 370.
(3) Designation o f Act: In the same proclam ation or by contem porane­
ous or subsequent executive orders, the President must designate the
particular em ergency statute he wishes to invoke—T he International
5See Proc. 4074, 7 W eekly Com p. Pres. Doc. 1174 (A ugust 15, 1971) (“ I hereby declare a national
em ergency d uring w hich I call upon the public and private sector to make the efforts necessary to
strengthen the international econom ic position o f the U nited States*').
130
Em ergency Econom ic Pow ers Act. This is a requirem ent o f the N a­
tional Em ergencies Act. 50 U.S.C. § 1631. W e see no reason why this
should not be done in the same docum ent that declares a national
emergency.
(4) Delegation: Since the statute vests pow ers directly in the Presi­
dent, any order should delegate pow er to an appropriate official. 3
U.S.C. §301. Presumably this would be the Secretary o f the Treasury
who already administers similar programs. T he President could in the
order (a) declare an immediate freeze by prohibiting the transactions
listed in the A ct including transactions in foreign exchange, transfers of
credit and paym ents between banking institutions, and im porting and
exporting of currency in which any Iranian has an interest and (b)
delegate to an appropriate official the powers to make exceptions and
to administer the freeze and enforce the A ct. Compare Exec. O rder No.
11387, “G overning Certain Capital Transfers A broad,” 33 Fed. Reg. 47(1968). This would avoid any enforcem ent gap between the issuance of
the Proclam ation and implementation of the regulations by T reasury.6
(5) Publication and Transmittal to Congress: T he National E m ergen­
cies A ct requires that the em ergency proclam ation be immediately
transmitted to Congress and published in the Federal Register. 50
U.S.C. § 1621.
(6) Report to Congress: Following the issuance o f the order, the
President shall “im mediately” transm it a report to the Congress
specifying:
(a) the circum stances which necessitate such exercise of
authority;
(b) w hy the President believes those circum stances con­
stitute an unusual and extraordinary threat, w hich has its
source in whole or substantial part outside the United
States, to the national security, foreign policy, or econ­
omy o f the United States;
(c) the authorities to be exercised and the actions to be
taken in the exercise o f those authorities to deal with
those circumstances;
(d) why the President believes such actions are neces­
sary to deal with those circumstances; and
(e) any foreign countries with respect to w hich such
actions are to be taken and why such actions are to be
taker, with respect to those countries.
6W e have been show n a proposal w hich is limited to freezing funds o f Iranian students, w hich
contem plates an effective date one week from issuance o f the executive order. This w ould not seem to
accom plish its purpose since it w ould enable students to draw funds from banking institutions in
anticipation o f the ban. M oreover, it is not clear w h eth er the banks could effectively adm inister an
initial freeze limited to students since they may not have records to show just w hich Iranian accounts
belong to students. It should be noted, how ever, that if the students w ere to w ithdraw funds from the
banks following the effective date, they w ould be com m itting a federal crim e in doing so. 50 U.S.C.
§ 1705.
131
50 U.S.C. § 1703(b).
T he legislative history indicates that this requirem ent was not to
impede use o f em ergency power. T he House report notes:
N othing in this section should be construed as requiring
submission o f a report as a precondition o f taking action
w here circum stances require prom pt action prior to or
simultaneously with submission o f a report.
H. Rep. No. 459, supra at 16. This provision is modeled on the W ar
Pow ers Resolution. As indicated in Part II above, the practice under
that resolution is to file very brief reports.
Jo hn M. H arm on
Assistant Attorney General
Office o f L egal Counsel
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