Application of the Anti-Terrorism Act of 1987 to Diplomatic Visit of Palestinian Delegation ( 2022 )

(Slip Opinion)
Application of the Anti-Terrorism Act of 1987 to
Diplomatic Visit of Palestinian Delegation
Section 1003(2) of the Anti-Terrorism Act of 1987, which prohibits the expenditure of
funds from the Palestine Liberation Organization in the United States to further the
PLO’s interests, is unconstitutional to the extent it prevents the exercise of the Presi-
dent’s Article II authorities to receive public ministers and to determine the manner in
which the Executive engages in diplomacy with foreign representatives. The ATA
therefore does not prevent PLO representatives invited by the State Department to
Washington, D.C., from spending PLO funds to attend diplomatic meetings with Ex-
ecutive Branch officials, including for expenses that are necessary incidents to those
meetings.
October 28, 2022
MEMORANDUM OPINION FOR THE ACTING LEGAL ADVISER
DEPARTMENT OF STATE
As part of the United States’ efforts to secure a lasting peace in the
Middle East, President Biden met in Bethlehem with President Abbas of
the Palestinian Authority (“PA”) in July 2022. During that meeting, the
President reaffirmed the commitment of the United States to continuing
efforts to bring Israel and the Palestinians together. Officials of the PA
and of the Palestine Liberation Organization (“PLO”) thereafter renewed
requests to receive U.S. officials in Ramallah; to engage with our diplo-
mats based in Ramallah; and to meet with United States leaders in Wash-
ington, D.C. 1 The State Department determined that a visit to the U.S.
capital of a Palestinian delegation that includes PLO officials, for diplo-
matic meetings with Executive Branch officials on matters to include
counter-terrorism efforts and other objectives, would significantly facili-
1 Although PA President Abbas also serves as Chairman of the PLO, the PA and the
PLO are legally distinct entities. Since the Oslo Accords in the 1990s, the United States
has recognized the PLO as the international representative of the Palestinian people,
including for purposes of negotiations with Israel and others concerning establishment of
a Palestinian State. The PA was established as an interim self-government authority
through a series of agreements negotiated between Israel and the PLO pursuant to the first
of the Oslo Accords, the Declaration of Principles on Interim Self-Government Arrange-
ments, Sept. 13, 1993, 32 I.L.M. 1525, and culminating in the Interim Agreement on the
West Bank and the Gaza Strip, Sept. 28, 1995, 36 I.L.M. 551 (1997), better known as
“Oslo II” or the “Interim Agreement.”
1
46 Op. O.L.C. __ (Oct. 28, 2022)
tate diplomatic engagement between the United States and the PLO and
thereby help to advance the important objectives the President has identified.
Before the State Department extended an invitation to the PLO for such a
visit, your office contacted the Department of Justice concerning the possible
application of the Anti-Terrorism Act of 1987 (“ATA”), Pub. L. No. 100-204,tit. X, 101 Stat. 1331, 1406, codified at 22 U.S.C. §§ 5201–5203, to expendi-
tures that PLO representatives might make while they would be in the
United States for the planned diplomatic engagements.
We advised you that in light of the President’s exclusive Article II au-
thorities to receive foreign ministers and to determine the manner in
which the Executive Branch engages in diplomatic communications with
foreign representatives, expenditures of PLO funds by the PLO delegation
for meetings in Washington between that delegation and Executive Branch
officials would be legal, notwithstanding the ATA. We further advised
that a reasonable expenditure of PLO funds on activities that are neces-
sary incidents of such diplomatic engagements, such as lodging, food, and
transportation for the delegation during its visit would also be lawful.
Thereafter, the State Department, through the Assistant Secretary of
State for Near Eastern Affairs, and after consultation with the staff of the
National Security Council, invited a Palestinian delegation that included
PLO officials to Washington solely for the purpose of meeting with State
Department and other Executive Branch officials from October 2–5,
2022. 2 The State Department explained to the invitees that expenditures of
the sort described above would not be unlawful during their visit but
instructed the PLO representatives not to spend PLO funds to engage in
other activities to further the PLO’s interests that were not incidental to
the meeting with Executive Branch officials, such as attending other
2 The Immigration and Nationality Act makes PLO officials presumptively inadmissi-
ble for purposes of entry into the United States. 8 U.S.C. § 1182(a)(3)(B)(i)(I)–(II)
(declaring “inadmissible” “[a]ny alien who . . . has engaged in a terrorist activity [or who]
a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or
has reasonable ground to believe, is engaged in . . . any terrorist activity”); id.
§ 1182(a)(3)(B)(i) (“An alien who is an officer, official, representative, or spokesman of
the Palestine Liberation Organization is considered, for purposes of this chapter, to be
engaged in a terrorist activity.”). Your office informed us, however, that the State De-
partment would follow standard procedures, pursuant to 8 U.S.C. § 1182(d)(3)(A)(i), to
request a waiver of the inadmissibility restriction as may be necessary to grant temporary
nonimmigrant visas to members of the PLO delegation.
2
Application of the Anti-Terrorism Act to Diplomatic Visit of Palestinian Delegation
meetings and holding public events. This opinion memorializes the basis
for our earlier advice to you regarding the application of the ATA to the
PLO delegation’s diplomatic visit to Washington. Although our analysis
differs in certain respects from that contained in a 2018 opinion of this
Office concerning the application of the ATA to the maintenance of the
PLO’s Washington office, see Statutory Restrictions on the PLO’s Wash-
ington Office, 42 Op. O.L.C. __ (Sept. 11, 2018) (“PLO Office”), we never-
theless conclude that section 1003 of the ATA may not constitutionally be
applied to preclude the sorts of PLO expenditures you have described—a
conclusion that is consistent with the advice we provided to your office in
2018 concerning similar expenditures.
I.
Congress enacted the ATA in 1987 to implement its “determin[ation]
that the PLO and its affiliates are a terrorist organization and a threat to the
interests of the United States, its allies, and to international law and should
not benefit from operating in the United States.” 22 U.S.C. § 5201(b)
(emphasis added). Section 1003 of the ATA limits PLO activity within the
United States by making it “unlawful” to do one or more of three things,
“if the purpose be to further the interests of the Palestine Liberation
Organization or any of its constituent groups, any successor to any of
those, or any agents thereof ”:
(1) to receive anything of value except informational material from
the PLO or any of its constituent groups, any successor thereto, or
any agents thereof;
(2) to expend funds from the PLO or any of its constituent groups,
any successor thereto, or any agents thereof; or
(3) notwithstanding any provision of law to the contrary, to establish
or maintain an office, headquarters, premises, or other facilities or
establishments within the jurisdiction of the United States at the be-
hest or direction of, or with funds provided by the Palestine Libera-
tion Organization or any of its constituent groups, any successor to
any of those, or any agents thereof.
Id. § 5202. Congress has authorized the President to waive these prohibi-
tions upon certification that certain conditions are met, and Presidents
3
46 Op. O.L.C. __ (Oct. 28, 2022)
(and Secretaries of State, by delegation) routinely exercised such waiver
authority from 1994 until November 2017. See PLO Office at *4–6. In
November 2017, however, the Secretary of State declined to make the
required factual determinations that are necessary in order to exercise the
statutory waiver authority, one of which would be that the Palestinians
“had not taken any actions to prompt the International Criminal Court
(‘ICC’) to investigate alleged crimes committed by Israeli nationals
against Palestinians,” which was then (and continues to be) a statutory
condition for a waiver. Id. at *6. 3 The waiver authority has not been exer-
cised since that time. Accordingly, the prohibitions of section 1003 are
currently in effect insofar as they are constitutional.
The proposed visit of PLO representatives to Washington did not entail
the reopening of the Washington office of the PLO or the opening of
another facility within the United States. 4 Section 1003(3) of the ATA is
therefore inapposite. In order to engage in diplomatic activities with the
Executive Branch in Washington, however, PLO representatives presum-
ably would have to “expend funds from the PLO” for the “purpose” of
“further[ing] the interests of the Palestine Liberation Organization,” in
violation of section 1003(2). 5 Enforcing that prohibition thus would make
it practically impossible for Executive Branch representatives to meet
with PLO representatives in Washington. The question on which we
3 The most recent waiver authority is contained in the Department of State, Foreign
Operations, and Related Programs Appropriations Act, 2022, Pub. L. No. 117-103, div. K,
tit. VII, § 7041(l)(3)(B), 136 Stat. 49, 564, 641.
4 The PLO closed its Washington, D.C. office in 2018. See PLO Office at *8. The PLO
has also maintained a mission as a United Nations observer in New York City since 1974.
In 1988, a district court held that ATA section 1003(3) did not require closing that
mission because the ATA should not be read to abrogate the United States’ treaty obliga-
tions under sections 11–13 of the Agreement Between the United Nations and the United
States Regarding the Headquarters of the United Nations, 11 U.N.T.S. 11, 20–24, 22 U.S.C.
§ 287 note (1982). United States v. Palestine Liberation Org., 695 F. Supp. 1456, 1464–71
(S.D.N.Y. 1988). The United States did not appeal that ruling. Accordingly, the PLO has
maintained its United Nations mission for several decades notwithstanding section 1003
of the ATA.
5 Receipt of such funds (or anything of value) in the United States by those persons or
others for the purpose of furthering the PLO’s interests might also implicate section
1003(1). To the extent section 1003(1) would apply in a manner that would effectively
prevent the PLO’s diplomatic visit, our analysis below with respect to section 1003(2)
would carry over to that other subsection, as well.
4
Application of the Anti-Terrorism Act to Diplomatic Visit of Palestinian Delegation
advised you orally is whether this statutory interference with the Execu-
tive’s diplomatic engagements would be constitutional and therefore
enforceable. 6
II.
As the Supreme Court has emphasized, “[t]he Executive is not free from
the ordinary controls and checks of Congress merely because foreign affairs
are at issue. It is not for the President alone to determine the whole content of
the Nation’s foreign policy.” Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015) (inter-
nal citations omitted). “In a world that is ever more compressed and inter-
dependent,” the Court explained, “it is essential the congressional role in
foreign affairs be understood and respected. For it is Congress that makes
laws, and in countless ways its laws will and should shape the Nation’s
course.” Id.
We have similarly acknowledged that “Congress quite clearly possesses
significant Article I powers in the area of foreign affairs, including with
respect to questions of war and neutrality, commerce and trade with other
nations, foreign aid, and immigration.” Legislation Prohibiting Spending
for Delegations to U.N. Agencies Chaired by Countries That Support
International Terrorism, 33 Op. O.L.C. 221, 225–26 (2009) (“Delegations
to U.N. Agencies”). In particular, and as we recognized in our 2018 opin-
ion about the ATA and PLO activities in the United States, PLO Office
at *9, Congress has authority to regulate commerce within the United
States, including commerce of foreign visitors. See U.S. Const. art. I, § 8,
cl. 3 (“The Congress shall have Power . . . [t]o regulate Commerce with
foreign Nations, and among the several States[.]”). As a result, “Congress
has the authority under Article I to regulate any nondiplomatic activities
conducted by the PLO,” at least as long as “those measures [do] not
invade the President’s exclusive authority over diplomacy.” PLO Office
6 Section 1004(a) of the ATA provides that the Attorney General “shall take the neces-
sary steps and institute the necessary legal action to effectuate the policies and provisions
of this chapter,” 22 U.S.C. § 5203(a), and section 1004(b), in turn, provides that “[a]ny
district court of the United States for a district in which a violation of this chapter occurs
shall have authority, upon petition of relief by the Attorney General, to grant injunctive
and such other equitable relief as it shall deem necessary to enforce the provisions of this
chapter,” id. § 5203(b).
5
46 Op. O.L.C. __ (Oct. 28, 2022)
at *24. Section 1003 of the ATA therefore is constitutional in many of its
applications.
As we explain below, however, section 1003(2) of the ATA would im-
permissibly infringe on exclusive presidential authorities to the extent it
precluded the expenditure of PLO funds necessary to facilitate meetings
between PLO representatives and Executive Branch officials in Washing-
ton. Therefore it would be unconstitutional to apply section 1003(2) to
prevent such expenditures.
Article II grants the President certain significant, exclusive authorities
relating to foreign affairs. In particular, the President has authority to
“receive Ambassadors and other public Ministers,” U.S. Const. art. II, § 3,
and to “make Treaties, provided two thirds of the Senators present concur,”
id. art. II, § 2, cl. 2. From these textual allocations of authority as well as
the structure of Article II, courts have recognized certain derivative Exec-
utive powers, including “the authority to acknowledge, in a formal sense,
the legitimacy of other states and governments, including their territorial
bounds.” Zivotofsky, 576 U.S. at 17. The President also “has the power to
open diplomatic channels simply by engaging in direct diplomacy with
foreign heads of state and their ministers.” Id. at 13–14.
In addition, the Executive Branch has long maintained that the Presi-
dent possesses exclusive authority to determine “the form and manner in
which the Executive engages in diplomacy” with foreign actors. Delega-
tions to U.N. Agencies, 33 Op. O.L.C. at 227 (emphasis added). And we
have further opined that this exclusive authority includes the power to
determine the location of diplomatic relations, at least where the Execu-
tive concludes that a particular “venue at which diplomatic relations occur
is itself . . . diplomatically significant.” Bill to Relocate United States
Embassy from Tel Aviv to Jerusalem, 19 Op. O.L.C. 123, 125 (1995). 7
We acknowledge that in Zivotofsky the Court declined to endorse the
Government’s suggestion that “the President has ‘exclusive authority to
7 In our 1995 opinion, we wrote that “Congress may not impose on the President its
own foreign policy judgments as to the particular sites at which the United States’ diplo-
matic relations are to take place.” Bill to Relocate United States Embassy from Tel Aviv to
Jerusalem, 19 Op. O.L.C at 125. We have no occasion to revisit that categorical proposi-
tion here because, as we explain below, it is sufficient for present purposes to conclude
that Congress may not effectively preclude such engagements in the Nation’s capital
where the Executive has determined that that location would be diplomatically significant.
6
Application of the Anti-Terrorism Act to Diplomatic Visit of Palestinian Delegation
conduct diplomatic relations.’” 576 U.S. at 19 (quoting Brief for the Re-
spondent at 18). 8 Moreover, Congress has enacted many statutes purport-
ing to direct the conduct of Executive Branch diplomatic engagements,
often without Executive Branch objection. See Jean Galbraith, The Runa-
way Presidential Power Over Diplomacy, 108 Va. L. Rev. 81, 100–02,
104–05 (2022). Nevertheless, the Executive Branch’s consistent view for
several decades has been that the President’s authority to determine the
form and manner of diplomacy is indefeasible by statute, see Delegations
to U.N. Agencies, 33 Op. O.L.C. at 231–33, and that position finds some
support in the Nation’s early history and in Executive Branch practice
early in the 20th century, id. at 227–31; see also Zivotofsky, 576 U.S.
at 21 (explaining that although “it is . . . the Legislative Branch, not the
Executive Branch, that makes the law,” “[t]he President does have a
unique role in communicating with foreign governments”). Whatever the
possible limits of that principle might be, it surely has its greatest force
with respect to the President’s decision to engage in diplomacy with
foreign representatives in our Nation’s capital, which is part and parcel of
the President’s authority to “receive Ambassadors and other public Minis-
ters.” U.S. Const. art. II, § 3.
As we discussed in our 2018 opinion concerning the application of the
ATA to the maintenance of the PLO’s Washington office, the President’s
8 In his dissenting opinion in Zivotofsky, Chief Justice Roberts wrote that the majority
“purport[ed] to reject” the proposition that the President has the “exclusive authority to
conduct diplomatic relations.” 576 U.S. at 65 (Roberts, C.J., dissenting). We read the
majority opinion differently. It is true that the Court did not accept the Government’s
suggestion of an exclusive Executive power to determine the substance of diplomatic
engagements. And the Court unequivocally rejected the notion that the Constitution
affords the President “‘the bulk of foreign-affairs powers.’” Id. at 19 (quoting Brief for
the Respondent at 16); see id. at 21 (“The Executive is not free from the ordinary controls
and checks of Congress merely because foreign affairs are at issue. . . . It is not for the
President alone to determine the whole content of the Nation’s foreign policy.”); id.
at 20–21 (explaining that the decision in United States v. Curtiss-Wright Export Corp.,
299 U.S. 304 (1936), is not to the contrary). The Court did not resolve, however, whether
and under what circumstances, apart from questions of recognition, Congress may by
statute regulate the manner in which the Executive engages in diplomatic interactions
with foreign representatives. See id. at 20 (“A formulation broader than the rule that the
President alone determines what nations to formally recognize as legitimate—and that he
consequently controls his statements on matters of recognition—presents different issues
and is unnecessary to the resolution of this case.”).
7
46 Op. O.L.C. __ (Oct. 28, 2022)
constitutional prerogatives with respect to “receiving” ministers and
engaging in diplomacy extend beyond Executive Branch interactions with
recognized nation-states to engagements with “foreign political organiza-
tions, such as the PLO.” PLO Office at *16. To determine whether to
recognize a prospective governmental entity as the legitimate sovereign
authority of a state, the President must be able to engage in negotiations
with that entity, including to reach agreements with it as a precondition of
recognition. See United States v. Belmont, 301 U.S. 324, 330 (1937)
(declaring it “within the competence of the President” to have negotiated
with the Soviet Union, precedent to U.S. recognition of that State, an
assignment of Russian claims against U.S. nationals to the United States,
and giving legal effect to that assignment); see generally PLO Office
at *16–20 (discussing past examples of diplomatic interactions with
entities other than recognized governments). Accordingly, the Executive’s
recognition power “necessarily subsumes within itself the power to with-
hold or deny recognition, to determine the conditions on which recogni-
tion will be accorded, and to define the nature and extent of diplomatic
contacts with an as-yet unrecognized government.” Section 609 of the
FY 1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189, 194 (1996).
We recognize that section 1003 does not directly prohibit the Executive
from receiving PLO “Ministers” 9 or from engaging in diplomatic discus-
sions with PLO representatives. It leaves open alternative channels of
communication—for example, it has not prevented Executive Branch
officials from meeting with Palestinian representatives on the West Bank.
Section 1003 does, however, have an indirect effect upon such exclusive
Executive functions in that it would effectively preclude diplomatic
meetings in the Nation’s capital (and elsewhere in the United States). The
question is whether that indirect effect impermissibly limits the Presi-
dent’s Article II authorities.
The Supreme Court indicated in Zivotofsky that the pertinent inquiry
with respect to such indirect effects is whether the application of the
statute in question “‘prevents the Executive Branch from accomplishing
its constitutionally assigned functions.’” 576 U.S. at 28–29 (quoting
9 As we noted in 2018, on the rare occasions when Congress sought to bar the entry of
foreign representatives into the United States, Presidents have regularly objected. PLO
Office at *14.
8
Application of the Anti-Terrorism Act to Diplomatic Visit of Palestinian Delegation
Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977)). In Zivotofsky,
Congress had enacted a law providing that upon the request of a U.S.
citizen born in Jerusalem, the Secretary of State had to designate that
person’s place of birth as “Jerusalem, Israel” on his or her U.S. passport,
even though the President had declined to recognize that Israel had sover-
eignty over Jerusalem. The Court acknowledged “that Congress has
substantial authority over passports.” Id. at 31. Yet the Court held that the
passport requirement at issue there violated the President’s exclusive
authority to recognize the territorial bounds of foreign states because it
had the practical effect of mandating “that the Executive contradict his
prior recognition determination in an official document issued by the
Secretary of State,” id. at 30, and thereby prevented the Executive from
“speaking with one voice . . . in conducting foreign relations,” id.
Because the PLO officials invited to the United States for the diplomat-
ic engagements at issue here would almost certainly have to expend PLO
funds “to further the [PLO’s] interests,” strict application of section 1003
would effectively have precluded PLO representatives from meeting with
Executive Branch officials in Washington. It therefore would have ob-
structed the President in exercising the exclusive authorities described
above, including the authority to determine which foreign “Ministers” to
“receive” in our Nation’s capital and the authority to determine the man-
ner—in particular, the location—of the Executive’s diplomatic engage-
ments with international representatives.
The interference would be clearest with respect to the President’s au-
thority to “receive” foreign ministers, because the President for all practi-
cal purposes could not “receive” a PLO delegation anywhere in the United
States if section 1003(2) were applied according to its terms.
Moreover, with respect to the President’s authority to determine the
manner of diplomatic communications, application of the ATA to pre-
clude the expenditures in question would, in practical effect, preclude the
Executive from being able to engage in diplomatic discussions in our
Nation’s capital, which is not only the natural situs of the President’s
“recei[pt]” of foreign “Ministers” but also a location that the State De-
partment has determined is most conducive for such conversations and is
therefore “diplomatically significant.” Bill to Relocate United States
Embassy from Tel Aviv to Jerusalem, 19 Op. O.L.C. at 125. Your office
has explained to us that states often invite foreign delegations to their
9
46 Op. O.L.C. __ (Oct. 28, 2022)
capitals in order to facilitate open dialogue and to provide a visible sym-
bol of the importance that is placed on a bilateral relationship. Meetings
with PLO representatives in Washington are particularly important both
symbolically and substantively, your office has explained, because the
United States has not recognized a Palestinian State, has closed the Wash-
ington office of the PLO that otherwise served as the locus for engage-
ment, and is striving to reestablish relationships to advance our foreign
policy and security goals. Your office informed us that the State Depart-
ment has assessed that such meetings would be necessary to discourage
unilateral Palestinian actions in international fora to advance their claims
for statehood, and to reinforce the message that the United States’ will-
ingness and ability to work with Palestinian representatives depends upon
their continued commitment to non-violence and countering terrorism; to
the cessation of the practice of making payments to individuals impris-
oned for acts of terrorism and to the families of individuals who died
committing acts of terrorism; and to facilitating settlement of the claims
of U.S. victims of terrorism.
It thus does not matter that President Biden was previously able to meet
with President Abbas in Bethlehem, or that U.S. officials could make
further diplomatic trips to the West Bank to discuss these same subjects
without implicating the ATA. The Executive may reasonably assess that
being prevented from hosting the PLO delegation in Washington would
seriously impair the President’s diplomatic efforts. Accordingly, section
1003 may not constitutionally be applied in a manner that effectively
prevents such a visit by prohibiting the invited PLO representatives from
making a reasonable expenditure of PLO funds on activities that are
necessary incidents of such diplomatic engagements with representatives
from the Executive Branch, such as lodging, food, and transportation for
the delegation during its visit. “Just as the President could not conduct
diplomacy abroad without the ability to make ‘expenditures [necessary]
for preparation, support, and facilitation of diplomatic discussion,’ depriv-
ing foreign representatives of the ability to perform these basic functions
would prevent them from operating in our country” during a diplomatic
visit. PLO Office at *23 (internal citation omitted).
10
Application of the Anti-Terrorism Act to Diplomatic Visit of Palestinian Delegation
III.
Our conclusion regarding the lawfulness of such expenditures is con-
sistent with the advice we provided to your office in 2018 concerning
similar expenditures. The analysis we set forth above, however, differs in
certain respects from that in our 2018 opinion. The 2018 opinion declared
broadly that “[t]he President’s foreign-affairs authorities . . . give him
exclusive control over the activities of foreign representatives in the
United States,” including “the sole authority to decide” not only which
foreign representatives to receive, but also “what activities they may
undertake” while they are in the United States. PLO Office at *14–15; see
also id. at *2 (asserting that “the President has the exclusive authority to
receive foreign diplomatic agents in the United States and to determine
the conditions under which they may operate” (emphasis added)). If these
unconditional statements were correct, then presumably the President
could permit the PLO representatives to expend PLO funds to do virtually
anything they wish to advance PLO interests while they are in the United
States, unencumbered by section 1003.
Upon further reflection, we conclude that such broad statements in our
2018 opinion are inconsistent with the Supreme Court’s rationale in
Zivotofsky. The Court in that case indicated that Congress could enact a
law that has an incidental effect on the President’s exercise of exclusive
Article II functions so long as the law does not “‘prevent[] the Executive
Branch from accomplishing its constitutionally assigned functions.’” 576
U.S. at 28–29 (quoting Nixon, 433 U.S. at 443). To underscore the point,
the Court noted that Congress could, for instance, enact an embargo
against a nation that the President has recognized, or even declare war
against it, id. at 30, despite the obvious impact that such actions would
have on the objectives underlying the President’s recognition decision. As
a general matter, then, Congress can enact laws that might make it more
difficult to achieve the substantive objectives of the President’s diplomat-
ic efforts, even if it cannot pass laws that effectively preclude the diplo-
matic engagements themselves.
At one point, our 2018 opinion appeared to acknowledge as much: It
stated that Congress may generally “regulate any nondiplomatic activities
conducted by the PLO” in the United States, PLO Office at *24, even
though such regulation might mean that PLO diplomats would be preclud-
11
46 Op. O.L.C. __ (Oct. 28, 2022)
ed from doing what most other diplomats have been free to do while on
missions to the United States. We agree with that statement. We believe,
however, that some of the broader statements in the 2018 opinion, which
appear to be in tension with the principle set forth in Zivotofsky that
Congress may exercise its textual authorities in ways that have impact on
the President’s conduct of diplomacy—namely, that the President has
“exclusive control over the activities of foreign representatives in the
United States,” including “the sole authority to decide . . . what activities
they may undertake” while they are in the United States, id. at *14–15—
are overstated.
Nevertheless, we continue to agree with the conclusion in our 2018
opinion that Congress could not by statute effectively preclude “specific
activities that the State Department identifie[s] [as] necessary incidents of
engaging the PLO in diplomatic contact with the United States.” Id.
at *21. For example, PLO representatives in the United States may com-
municate with PLO leadership abroad, even using PLO funds, because
“[t]here would be few surer ways of thwarting the President’s diplomatic
efforts than to bar foreign representatives from reporting on developments
within the United States.” Id. at *21–22. Likewise, the ATA may not
constitutionally be implemented to preclude the visiting PLO representa-
tives from using PLO funds in a reasonable manner to subsidize other
nondiplomatic activities that are necessary incidents of such diplomatic
engagements with representatives from the Executive Branch. For exam-
ple, we believe it was reasonable for the State Department to conclude
that the PLO delegation had to be able to expend PLO funds to pay for
such lodging, food, and transportation in the Washington area—even on
the assumption that such expenditures would be made for the purpose of
“further[ing] the interests of the Palestine Liberation Organization,”
22 U.S.C. § 5202 10—if such expenditures were reasonably necessary to
enable those representatives to attend diplomatic meetings with Executive
officials in Washington. Accord PLO Office at *22–23 (reasoning that
“[l]ogistical and financial services provided to support PLO representa-
tives’ official trips to meet with high-level U.S. officials are also neces-
sary incidents of diplomacy” because “[w]ithout such support, those
diplomatic trips might not happen,” and that, “[f]or similar reasons, finan-
10 The ATA does not prohibit expenditures that are not made for that purpose.
12
Application of the Anti-Terrorism Act to Diplomatic Visit of Palestinian Delegation
cial and administrative activities related to diplomatic efforts, such as
maintaining bank accounts and paying bills, are necessary incidents of
diplomacy” that Congress could not prohibit). Accordingly, we advised
you that the application of the ATA to prohibit these expenditures would
be unconstitutional. 11
CHRISTOPHER H. SCHROEDER
Assistant Attorney General
Office of Legal Counsel
11 In our 2018 opinion, we concluded that PLO representatives could expend PLO
funds in the United States to engage in “various forms of public diplomacy—namely,
‘outreach to Palestinian-Americans, Palestinians in the United States, or interested
Americans on matters relevant to the Palestinian community,’” PLO Office at *22, on the
ground that such activities have historically been “typical and accepted incident[s] of
diplomacy,” id. However, even if host states sometimes (albeit presumably not always)
permit foreign diplomats to engage in such activities while they are visiting on a diplo-
matic mission, that “typical and accepted” practice has occurred in the absence of statuto-
ry restrictions such as those found in ATA section 1003—a statute designed to deviate
from the baseline norm precisely in order to prevent the PLO from “benefit[ting] from
operating in the United States.” 22 U.S.C. § 5201(b).
That said, we have no occasion here to consider whether and under what circumstances
the ATA’s restrictions on the use of PLO funds for such forms of PLO “public diploma-
cy” would effectively prevent the Executive from “‘accomplishing [the President’s]
constitutionally assigned functions,’” Zivotofsky, 576 U.S. at 28–29 (quoting Nixon, 433
U.S. at 443), of receiving ministers and determining the manner of U.S. diplomacy with
the PLO. Nor do we revisit here the question of the extent to which the expenditure
restriction of section 1003(2) may constitutionally be applied to expenditures by PLO
representatives who are residing in the United States in order to work in a PLO office or
mission. The only question we had occasion to answer here was whether section 1003(2)
could constitutionally be enforced to prohibit the expenditure of PLO funds necessary to
facilitate the diplomatic engagements of the visiting PLO delegation with Executive Branch
officials.
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