Application of the Neutrality Act to Official Government Activities

Application of the Neutrality Act to
Official Government Activities
Section 5 o f the Neutrality Act, 18 U.S.C. § 960, forbids preparation for, or participation in,
m ilitary expeditions against a foreign state w ith which the United States is at peace. This
provision is intended solely to prohibit persons acting in a private capacity from taking
actions that m ight interfere with the foreign policy and relations of the United States. It does
not proscribe activities conducted by Governm ent officials acting within the course and scope
o f their duties as officers of the United States.
April 25, 1984
M em orandum O p in io n f o r t h e Attorney G eneral
This memorandum is written in connection with recent allegations1 that
several United States Government officials may have violated § 5 of the
Neutrality Act, 18 U.S.C. § 960, which forbids the planning of, provision for,
or participation in “any military or naval expedition or enterprise to be carried
on from [the United States] against the territory or dominion of any foreign
prince or state . . . with whom the United States is at peace.” To assist you in the
discharge of your responsibility under Title VI of the Ethics in Government
Act, 28 U.S.C. §§ 591-598, to determine preliminarily whether such charges,
if true, might constitute a crime, we have undertaken a thorough examination of
the Neutrality Act (Act), with particular attention toward § 5, its legislative
history, the historical circumstances surrounding its enactment, existing judi­
cial precedent regarding the Act, and the history of Executive and Legislative
relations with respect to the Act’s application. Based upon these consider­
ations, we have concluded that the Act does not proscribe activities conducted
by Government officials acting within the course and scope of their duties as
officers of the United States but, rather, was intended solely to prohibit actions
by individuals acting in a private capacity that might interfere with the foreign
policy and relations of the United States.
1 T he m ost recent assertions in this re g a rd that have b een brought to o u r attention are those made in a letter
to you, d ated A pril 9, 1984, from a m ajority o f the D em ocratic Party members o f the Com m ittee on the
Judiciary o f the H ouse o f Representatives, taking the position that several G overnm ent officials may have
violated th e A ct by participating in a p lan “to covertly aid , fund and participate in a military expedition and
enterprise utilizing N icaraguan exiles fo r the purpose o f attacking and overthrow ing the governm ent of
N icaragua, a country w ith which the U n ited States is officially at peace."
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I. Evolution of the Neutrality Act
A. President W ashington’s Proclamation o f 1793
The Neutrality Act was enacted in 1794 following President Washington’s
Proclamation of April 22, 1793, regarding the war between France and Great
Britain, requiring the citizens of the United States “with sincerity and good
faith [to] adopt and pursue a conduct friendly and impartial toward the belliger­
ent powers,” warning citizens “to avoid all acts and proceedings whatsoever,
which may in any manner tend to contravene such disposition,” and threatening
to prosecute those “who shall, within the cognizance of the courts of the United
States, violate the law of nations with respect to the powers at war, or any of
them.”2 The President viewed the Proclamation as a necessary measure toward
restraining the natural sympathy and enthusiastic support of the American
people for the French cause, bom of France’s generous aid to the colonists
during the American Revolution and the Americans’ strong identification with
the goals of the French Revolution. See generally C. Fenwick, The Neutrality
Laws o f the United States 16-23 (1913) (Fenwick).3 Writing nearly one-
2 The Proclam ation provided:
W hereas it appears that a state o f w ar exists betw een Austria, Prussia, Sardinia, G reat B ritain,
and the U nited N etherlands, on the one part, and France on the other; and the duty and interest o f
the U nited States require, that they should with sincerity and good faith adopt and pursue a
conduct friendly and impartial tow ards the belligerent powers:
I have therefore thought fit by these presents, to declare the disposition o f the U nited States to
observe the conduct aforesaid tow ards those pow ers respectively; and to exhort and w arn the
citizens o f the U nited States carefully to avoid all acts and proceedings w hatsoever, which may in
any m anner tend to contravene such disposition.
And I do hereby also make known, that w hosoever o f the citizens o f the U nited States shall
render him self liable to punishm ent o r forfeiture under the law o f nations, by com m itting, aiding,
or abetting hostilities against any o f the said pow ers, o r by carrying to any o f them, those articles
which are deem ed contraband by the m odem usage o f nations, will not receive the protection of
the United States, against such punishm ent o r forfeiture; and further, that 1 have given instruc­
tions to those officers, to whom it belongs, to cause prosecutions to be instituted against all
persons, who shall, w ithin the cognizance o f the C ourts o f the U nited States, violate the law of
nations, with respect to the powers at w ar, o r any o f them.
32 Writings o f George Washington 430 (J. Fitzpatrick ed 1939). See also 1 Messages and Papers o f the
Presidents 156 (J. Richardson ed. 1896).
3 President W ashington wrote to Secretary o f State Jefferson on A pril 12, 1793:
Your letter o f the 7 instant was brought to me by the last post. W ar having actually com m enced
betw een France and G reat Britain, it behoves the G overnm ent o f this C ountry to use every m eans
in its pow er to prevent the citizens thereof from em broiling us w ith either o f those pow ers, by
endeavouring to m aintain a strict neutrality. I therefore require that you w ill give the subject
mature consideration, that such m easures as shall be deem ed m ost likely to effect this desirable
purpose may be adopted w ithout delay; for 1 have understood that vessels are already designated
privateers, and are preparing accordingly.
Such other m easures as may be necessary for us to pursue against events which it may not be in
our pow er to avoid or controul, you w ill also think of, and lay them before me at my arrival in
Philadelphia, fo r w hich place I shall set out Tom orrow ....
On the same date, W ashington wrote to Secretary o f the Treasury Hamilton:
H ostilities having com m enced betw een France and England, it is incum bent on the G overn­
ment o f the U nited States to prevent, as far as in it lies, all interferences o f our C itizens in them ;
C ontinued
59
hundred years later, a committee of Congress described the historical circum­
stances immediately preceding President Washington’s Proclamation and the
passage of the Act as follows:
The enthusiasm of republicans for France, and their hostility to
England, was not much less marked in America than in France.
It brought public opinion to the verge of revolt against the
peaceful policy of Washington. Accountable to the people for its
resistance to popular clamor and the consequences of its timid
submission to the demands of England, whose arrogant preten­
sions intensified the popular friendship for France, the adminis­
tration was threatened with formidable resistance, if not the
overthrow of its policy.
H.R. Rep. No. 100, 39th Cong., 1st Sess. 2 (1866).
In addition, the United States and France had entered into two “treaties” in
1778, both of which threatened the new nation’s posture of neutrality regarding
the military affairs of the European countries.4 The more serious threat was
posed by the Treaty of Amity and Commerce, 8 Stat. 12,5 which made it lawful
for French ships and privateers to enter United States ports with their prizes of
war and unlawful for ships of other foreign nations carrying subjects or
property of France as their prizes of war to enter American ports. See generally
Fenwick, supra, at 16-32.
In the spring of 1793, Edmund Charles Genet, French Minister to the United
States, arrived in this country and, pursuant to the Treaty of Amity and
Commerce, began issuing commissions to commanders of vessels willing to
serve France and authorizing the outfitting of privateers from American ports.
Secretary of State Jefferson protested to the French Minister that such conduct
was not “warranted by the usage of nations, nor by the stipulations existing
between the United States and France,” but met with continued resistance from
Genet that “no article of [the Treaties] impose[d] . . . the painful injunction of
abandoning us in the midst of the dangers which surround us.” Fenwick, supra,
at 18-19. Finally, Jefferson informed Genet that “after mature consideration,”
President Washington had concluded:
3 (. . . continued)
and im m ediate precautionary m easures ought, I conceive, to be taken for that purpose, as 1 have
reason to believe (from some th in g s I have heard) that m any Vessels in different parts of the
U nion are designated for Privateers and are preparing accordingly. The m eans to prevent it, and
fo r the U nited States to m aintain a strict neutrality betw een the powers at war, I wish to have
seriously thought of, that I may a s soon as I arrive at the Seat o f the Governm ent, take such steps,
tending to these ends, as shall b e deem ed proper and effectual. W ith great esteem etc.
32 Writings o f George Washington, supra, at 415, 416.
4 T hese “treaties” w ere entered into b y the colonists during the A m erican Revolution in exchange for aid
from France, see 8 Stat. 6, 12, and w ere not annulled by Acts o f C ongress until 1798.
5 T he o th er treaty w as the Treaty o f A lliance, 8 Stat. 6, regarding which there existed a serious question
w ithin W ashington’s C abinet as to w h eth er the U nited States w as obligated to take up arm s in France's
defense. H ow ever, because France apparently never forced a resolution o f the issue, it rem ained unresolved.
See Lobel, The Rise and Decline o f the Neutrality Act: Sovereignty and Congressional War Powers in United
States Foreign Policy, 24 Harv. Int’l L .J. 1, 12-13 (1983).
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[T]hat the arming and equipping [of] vessels in the ports of the
United States, to cruise against nations with whom we are at
peace, was incompatible with the territorial sovereignty of the
United States; that it made them instrumental to the annoyance
of those nations, and thereby tended to compromit their peace;
and that he thought it necessary, as an evidence of good faith to
them, as well as a proper reparation to the sovereignty of the
country, that the armed vessels of this description should depart
from the ports of the United States.
* * *
After fully weighing again, however, all the principles and
circumstances of the case, the result appears still to be, that it is
the right of every nation to prohibit acts of sovereignty from
being exercised by any other within its limits, and the duty of a
neutral nation to prohibit such as would injure one of the war­
ring Powers; that the granting [of] military commissions, within
the United States, by any other authority than their own, is an
infringement on their sovereignty, and particularly so when
gran ted to their own citizens, to lead them to commit acts
contrary to the duties they owe their own country[.]
Fenwick, supra, at 19 (quoting 1 American State Papers, Foreign Relations
149 (emphasis added)).6
Notwithstanding the President’s Proclamation and the continued public rep­
rimands of Minister Genet, privateers continued to be outfitted in American
ports for the service of France,7 with the individuals involved suffering few
legal reprisals by the United States Government. Although there were several
prosecutions of individual citizens charged with attacking the property and
citizens of nations at peace with the United States, the prosecutions were
unsuccessful, largely because there were no federal statutes defining such acts
as crimes and legal opinion was divided on the question whether violations of
international law could provide a basis for a common law federal offense. The
6 In reporting this incident, Fenwick states that in this passage, “Jefferson set forth in clear and simple term s
the pnnciples o f neutrality as understood by the President." Fenw ick, supra, at 19.
7 H ow ever, the instructions — “deductions from the laws o f neutrality, established and received am ong
nations” — issued by Secretary H am ilton on August 7, 1793 to custom s collectors in m ajor ports appears to
have had some effect in decreasing the incidence o f privateering. Fenwick describes the instructions as follows:
The instructions called upon the collectors to be vigilant in detecting any acts in violation of
the law s o f neutrality, and to give im m ediate notice o f such attem pts to the proper authorities No
asylum was to be given to vessels, nor to their prizes, o f either o f the pow ers at war w ith France,
in accordance w ith the Treaty o f 1778 w ith France, nor to armed vessels which had been
originally fitted out in any port o f the U nited States by either o f the parties at war. The purchase
o f contraband articles, as m erchandise, was to be free to both parties. The names o f citizens o f the
U nited States in the service o f either o f the parties w ere to be notified to the local state governor
V essels contravening these regulations were to be refused clearance. V essels, except those in the
im m ediate service o f foreign governm ents, w ere to be exam ined as to their military equipm ent
upon entering and upon leaving port.
Fenwick, supra, at 2 2 -2 3 .
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most celebrated of these cases is H enfield’s Case, 11 F. Cas. 1099 (C.C.D. Pa.
1793) (No. 6360), in which Henfield was prosecuted at common law for
enlisting on the French privateer, “Citizen Genet,” in violation of the treaties of
the United States and the law o f nations. Although, upon the urging of Attorney
General Randolph, the court recognized such actions as violations of the
sovereignty of the United States in its charge to the jury, Henfield nevertheless
was acquitted. See generally Lobel, The R ise and Decline o f the Neutrality Act,
supra, at 13-14; Fenwick, supra, at 24. Regarding this case, Jefferson wrote in
a letter to James Monroe:
The Atty General gave an official opinion that the act was
against law, & coincided with all our private opinions; & the
lawyers of this State, New York & Maryland, who were applied
to, were unanimously of the same opinion. Lately mr. Rawle,
Atty of the U.S. in this district, on a conference with the District
judge, Peters, supposes the law more doubtful. New acts, there­
fore, of the same kind, are left unprosecuted till the question is
determined by the proper court, which will be during the present
w eek.. . . I confess I think myself that the case is punishable, &
that, if found otherwise, Congress ought to make it so, or we
shall be made parties in every maritime war in which the pirati­
cal spirit of the banditti in our ports can engage.
6 W ritings o f Thomas Jefferson 347-48 (P. Ford ed. 1895) (emphasis added).
In addition, in the summer of 1793, United States officials became aware of
Minister Genet’s efforts to organize armies to invade New Orleans and the
Floridas, then in the possession of Spain, an ally of Great Britain. As a result of
these and other similar events, and the apparent ineffectiveness of existing
legal mechanisms to restrain such activities, President Washington sought to
enact into legislation the principles of neutrality set forth in his Proclamation.
B. The N eutrality A ct of 1794
In his annual address to Congress in December 1793, President Washington
articulated his views regarding the role of the principle of neutrality in sover­
eign states and called upon Congress to implement such principles through
legislation. President Washington proclaimed:
In this posture of affairs, both new and delicate, I resolved to
adopt general rules, which should conform to the treaties and
assert the privileges o f the United States. These were reduced
into a system, which will be communicated to you.
* * *
It rests with the wisdom of Congress to correct, improve, or
enforce this plan of procedure; and it will probably be found
expedient to extend the legal code and the jurisdiction of the
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Courts of the United States to many cases which, though dependent
on principles already recognised, demand some further provisions.
Where individuals shall, within the United States, array them­
selves in hostility against any of the Powers at war[;] or enter
upon military expeditions or enterprises within the jurisdiction
of the United States; or usurp and exercise Judicial authority
within the United States; or where the penalties on violations of
the law of nations may have been indistinctly marked, or are
inadequate — these offences cannot receive too early and close
an attention, and require prompt and decisive remedies.
4 Annals o f Congress 11 (1793).
The Neutrality Act was enacted on June 5, 1794. 1 Stat. 381. Although
originally enacted as a temporary measure,8 the Act was continued in force by
the Act of Mar. 2, 1797, 1 Stat. 497, and finally made permanent by the Act of
Apr. 24, 1800, 2 Stat. 54. Through several amendments9 and the re-enactment
of its provisions in the revision and codification of Title 18 in 1909, 35 Stat.
1088, 1089, and again in 1948, 62 Stat. 683, 744, the Act today remains
substantially similar to that which was first enacted in 1794.
Section 1 of the Act, 18 U.S.C. § 958, provides:
Any citizen of the United States who, within the jurisdiction
thereof, accepts and exercises a commission to serve a foreign
prince, state, colony, district, or people, in war, against any
prince, state, colony, district, or people, with whom the United
States is at peace, shall be fined not more than $2,000 or impris­
oned not more than three years, or both.
Section 2, 18 U.S.C. § 959, provides in pertinent part:10
(a) Whoever, within the United States, enlists or enters him­
self, or hires or retains another to enlist or enter himself, or to go
beyond the jurisdiction of the United States with intent to be
enlisted or entered in the service of any foreign prince, state,
colony, district, or people as a soldier or as a marine or seaman
on board any vessel of war, letter of marque, or privateer, shall
8 That the A ct's operation was originally lim ited to a term o f tw o years testifies to “the character o f the act,
and the extent to which it cam e in conflict with the opinions o f the people, as well as the extraordinary
influences under which it was enacted.’’ H.R. Rep. No. 100, supra, at 2.
9 See, e.g.. Act o f Mar. 3, 1817, 3 Stat. 370; Act o f Apr. 20, 1818, 3 Stat. 447, Act o f Mar. 10, 1838, 5 Stat.
212. Parts o f the Act were also am ended in 1917, in the “Act to punish acts o f interference w ith the foreign
relations, the neutrality, and the foreign com m erce o f the U nited States, to punish espionage, and better to
enforce the crim inal laws o f the U nited States,” com m only referred to as the “Espionage A ct,” 40 Stat. 217.
10 Subsection (b) o f § 2 generally exem pts from subsection (a)’s coverage “citizens or subjects of any
country engaged in w ar with a country with which the U nited States is at w ar;” subsection (c) generally
exem pts from the A ct’s coverage citizens o f the foreign nations who are “transiently within the United States
. . . [who] enlist on board any vessel o f war . . . which at the tim e o f its arrival within the U nited States was
fitted and equipped as such.”
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be fined not more than $1,000 or imprisoned not more than three
years, or both.
Section 3, 18 U.S.C. § 962, provides in pertinent part:
Whoever, within the United States, furnishes, fits out, arms,
or attempts to furnish, fit out or arm, any vessel, with intent that
such vessel shall be employed in the service of any foreign
prince, or state, or of any colony, district, or people, to cruise, or
commit hostilities against the subjects, citizens, or property of
any foreign prince or state, or of any colony, district, or people
with whom the United States is at peace; or
Whoever issues or delivers a commission within the United
States for any vessel, to the intent that she may be so employed —
Shall be fined not more than $10,000 or imprisoned not more
than three years, or both.
Section 4, 18 U.S.C. § 961, provides in pertinent part:
Whoever, within the United States, increases or augments the
force of any ship o f war . . . which, at the time of her arrival
within the United States, was a ship of war . . . in the service of
any foreign prince or state, or of any coiony, district, or people,
or belonging to the subjects or citizens of any such prince or
state, colony, district, or people, the same being at war with any
foreign prince or state, or of any colony, district, or people, with
whom the United States is at peace, by adding to the number of
the guns of such v essel. . . or by adding thereto any equipment
solely applicable to war, shall be fined not more than $1,000 or
imprisoned not more than one year, or both.
Section 5, 18 U.S.C. § 960 provides:
Whoever, within the United States, knowingly begins or sets
on foot or provides or prepares a means for or furnishes the
money for, or takes part in, any military or naval expedition or
enterprise to be carried on from thence against the territory or
dominion of any foreign prince or state, or of any colony,
district, or people with whom the United States is at peace, shall
be fined not more than $3,000 or imprisoned not more than three
years, or both.
Although the debates in Congress regarding these provisions focused largely
on the immediate problems posed by the 1778 “treaties” with France and how
they would be affected by the anti-privateering and confiscation of goods
provisions of the Act,11 the Act’s legislative history nevertheless reveals other
11 Section 3 o f the Act provided fo r the confiscation o f goods on arm ed vessels, outfitted within the U nited
States, that com m itted hostile acts ag ain st territories w ith which the U nited States was at peace.
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key issues that were addressed by the Act’s passage. Several commentators
have suggested, and the speeches of President Washington, Secretary Jefferson,
and various Senators and Representatives support the view, that the United
States, in the early stages of its development as a republic, embraced the
general principle of neutrality as a means, in view of its military weakness and
geographic isolation, of advancing its commercial interests by avoiding in­
volvement in European wars and protecting its independence and sovereignty
from violation by foreign states, as well as of consolidating its federal powers
and strengthening the sovereignty of the federal government over its individual
citizens. See generally Fenwick, supra; Lobel, The Rise and Decline o f the
Neutrality Act, supra, and sources cited therein. See also United States v.
O'Sullivan, 27 F. Cas. 367,373-75 (S.D.N.Y. 1851) (No. 15974) (providing an
account of the Act’s passage).
In 1866, the House Committee on Foreign Affairs, which was engaged in an
extensive review of the Act’s history, described the state of the new nation after
1783 and the historical circumstances that compelled the Act’s passage:
The independence of the American colonies was acknowl­
edged by Great Britain in 1783. The participation of the colonies
in the Indian and French wars, and the severe and long-contin­
ued struggle of the Revolution made it necessary that the new
government under the Constitution should husband its resources,
and, if possible, avoid all complications with foreign nations.
The foreign policy of the administration of Washington — as
wise and necessary as it was successful — was based upon this
idea. It is now conceded that the safety of the republic imperi­
ously demanded this policy.
H.R. Rep. No. 100, supra, at 1. In his Farewell Address to the Nation on
September 19, 1796, President Washington reiterated these themes:
The Great rule of conduct for us, in regard to foreign Nations
is in extending our commercial relations to have with them as
little political connection as possible. So far as we have already
formed engagements let them be fulfilled, with perfect good
faith. Here let us stop.
Europe has a set of primary interests, which to us have none,
or a very remote relation. Hence she must be engaged in fre­
quent controversies, the causes of which are essentially foreign
to our concerns. Hence therefore it must be unwise in us to
implicate ourselves, by artificial ties, in the ordinary vicissi­
tudes of her politics, or the ordinary combinations and collisions
of her friendships, or enmities;
Our detached and distant situation invites and enables us to
pursue a different course. If we remain one People, under an
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efficient government, the period is not far off, when we may
defy material injury from external annoyance; when we may
take such an attitude as will cause the neutrality we may at any
time resolve upon to be scrupulously respected; when belligerent
nations, under the impossibility of making acquisitions upon us, will
not lighdy hazard giving us provocation; when we may choose
peace or war, as our interest guided by our justice shall Counsel.
35 W ritings o f G eorge Washington, supra, at 233-34.
Critical to the effort to remain detached from foreign entanglements was
establishing to foreign powers and to the citizens of the United States that only
the G overnm ent was authorized to articulate United States foreign policy.
Unauthorized acts by private individuals in this regard were not to be recog­
nized by foreign nations, and, indeed, were to be punished by the United States,
“because no citizen should be free to commit his country to war.” 6 Writings o f
Thomas Jefferson, supra, at 347. In reviewing the history and purposes of the
Act, the United States District Court for the Southern District of New York, in
a landmark decision in 1851, analogized the neutrality obligations that the
drafters sought to impose on individuals through the enactment of civil penal
laws to those imposed by the law of nations on sovereign governments:
As the representative of the people, — their agent, delegated
by the people of the United States, — the government adopted
an administrative and legislative policy embracing both its di­
rect relationship to foreign states, and the coordinate obligations
of the citizens individually to uphold and effectuate that rela­
tionship. What the government might not do in its public capac­
ity, without an infraction of the law of nations and subjecting
itself to reprisals and war, it claimed the people should be
prohibited doing individually___It is most manifest, that, at the
earliest day the subject was acted on, the United States govern­
m ent intended to make the person al duties o f citizens co-equal
with those o f the nation, in respect to acts of hostility against other
states . . . [and] to compel the citizens to conform in all respects to
the principles o f the law o f nations, recognized and observed on the
part of the government, in regard to friendly powers.
U nited States v. O ’Sullivan, 27 F. Cas. at 374, 375 (emphasis added). See also
Fenwick, supra, at 1-14.
During the debate on the Neutrality Act, Representative Ames spoke of the
weakness of the United States’ general authority and of the threat of “be[ing]
driven into a war by the licentious behavior of some individuals.” 4 Annals o f
Congress 743 (1794). Representative Wadsworth expressed a similar view:
If the Executive cannot hinder these people from going to sea in
this way, we must be forced into hostilities immediately. We
send an Ambassador to England to secure peace; and we follow
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up this application by sending out privateers. Will any nation, in
such a case, believe that our desire of peace is sincere? Is the
seizing of their ships a sign of it?
Id. at 744. Representative Murray reiterated the importance of securing govern­
mental control over the power of individuals to affect foreign policy:
[W]ere people only meeting to form the very first elements of a
civil compact, they would have a right to say to each member of
their society, that he should not enlist in any foreign service, to
invade a nation perhaps friendly to them, without their consent.
To countenance recruiting for foreign service, was admitting
into the heart of the country an engagement against the sover­
eignty of the country.
Id. at 746 (emphasis added). This view was reiterated again by the court in the
O ’Sullivan case as an underlying purpose of the Act:
[T]his government . . . possesses the unquestionable power to
prohibit.. . citizens, individually, or in association with others,
from entering into engagements or measures within the Ameri­
can territory, or upon American vessels, in hostility to other
nations, and which may compromit [sic] our peace with them. It
would be m ost deplorable if no such controlling p o w er existed
in this government, and if men might be allowed, under the
influence o f evil, o r even good, motives, to set on fo o t warlike
enterprises from our shores, against nations at peace with us,
and thus, fo r private objects, sordid or criminal in themselves — or
under the impulse of fanaticism or wild delusions — bring upon this
country, at their own discretion, the calamities o f war. The will of
the nation is expressed in this respect, by the statute of [1794],
United States v. O ’Sullivan, 27 F. Cas. at 383 (emphasis added). Thus, the
Neutrality Act, by outlawing private warfare, would ensure that the nation’s
foreign policy was made by the President, with appropriate participation by
Congress, working through the political process in fulfillment of their constitu­
tional roles, and not by the unilateral and unrestricted acts of private individuals.12
12 In arguing that the Act was intended to proscribe actions by the G overnm ent as w ell as those o f
individuals acting in their private capacities, some com m entators have pointed to the English predecessor to
§ 2 o f the Act, w hich excepted from the English a c t’s prohibitions those enlistm ents that w ere authorized by
the Queen, and the failure o f the U nited States Congress to make explicit sim ilar exceptions in its Act. See,
e.g., Lobel, The Rise and Decline o f the Neutrality Act, supra, at 31-33. H ow ever, it was clear to early
scholars that the d rafters’ use o f the term “any person” in § 2 was not intended to bar enlistm ents duly
authorized by the Governm ent.
Sections 1 and 2 o f the A ct were designed to protect the nation’s sovereignty over its territory and its
independence in w orld affairs by prohibiting belligerents from recruiting troops w ithin its borders “w ithout
the consent o f the sovereign,’’ 7 Op. A tt'y Gen. 367, 368, 381 (18SS), and by prohibiting its citizens from
engaging in private acts o f warfare, i.e., accepting and exercising com m issions in the service of nations
against nations w ith which the U nited Slates was at peace, which could be interpreted erroneously by foreign
C ontinued
67
In calling for amendments to the Act in 1803 to strengthen its provisions to
respond more effectively to the involvement of American citizens in the South
American colonial wars,13 President Jefferson re-emphasized the Act’s pur­
pose to prevent individual citizens from embarking on private expeditions in
contravention of the Government’s foreign policy goals:
[L]et it be our endeavor, as it is our interest and desire, to
cultivate the friendship of the belligerent nations by every act of
justice and of innocent kindness; to receive their armed vessels
with hospitality from the distresses of the sea, but to administer
the means of annoyance to none;. . . to restrain our citizens from
em barking individually in a w ar in which their country takes no
p a rt; to punish severely those persons, citizen or alien, who shall
usurp the cover of our flag for vessels not entitled to it, infecting
thereby with suspicion those o f real Americans and committing us
into controversies for the redress o f wrongs not our own\_.\
12 (. . . continued)
pow ers as acts o f the U nited States G overnm ent. See generally W arren, A ssistant A ttorney G eneral, ‘‘Memo­
randum o f L aw on the C onstruction o f S ectio n 10 o f the Federal Code [currently 18 U.S.C. § 959]” (1915). In
his m em orandum . A ssistant Attorney G en eral W arren traced the developm ent o f § 95 9 ’s predecessors from
th eir origins in the B ritish Act of 13 A nne, ch. 10 (1713), which prohibited the “listing of Her M ajesties
subjects to serve as soldiers without H e r M ajesties license,” to 1915. In discussing the evolution o f this
prohibition in the U nited States, W arren noted that although the A m erican C ongress had extended the Act
beyond th e p rohibitions contained in the English act to p rohibit “ any person" w ithin the United States from
enlisting in foreign service, and thus m ade “unlaw ful the recruiting o r enlisting o f all foreign citizens within
this c o u n try ,” C ongress implicitly retained the A ct’s prohibition against acts to which the Governm ent had
not consented. Id. at 3 -1 1 . See also 4 Annals o f Congress 746 (1794); 7 Op. A tt’y Gen. at 381 (“The main
consid eratio n is the sovereign right o f th e U nited States to exercise com plete and exclusive jurisdiction
w ithin their ow n territory; to remain stric tly neutral, if they please, in the face o f the w arring nations of
E u ro p e . . . . A ll w hich it concerns a foreign governm ent to know is w hether we, as a government, permit such
enlistm en ts.” ) (em phasis added)
13 The follow ing account o f the im pact on the A m erican public o f the revolutions by Spanish colonists in
the W estern H em isphere d u n n g the first tw o decades o f the 19th century provides valuable insight into the
tensions betw een the collective individual wills o f the American people and the federal governm ent as a
sovereign entity, and the necessity for vigorous enforcem ent o f U nited States foreign policy o f neutrality
against those individuals w ho would v io late it.
The independence o f the Spanish republics w as hailed by the people of this country as the most
auspicious event o f the age. No governm ent in Europe except that of Spain had resisted the
freedom o f the Spanish provinces b y force. B ut all the nations o f Europe in alliance with Spain
m aintained h e r right to the governm ent o f the colonies. G reat B ritain had been invited by Spain,
in conjunction w ith the European alliance, to m ediate betw een her and the colonies, upon the
basis o f th eir continued submission to her authority, with certain am eliorations as to commerce
and the appointm ent o f officers. T h e United States, w hose co- operation was solicited by Great
B ritain, declined to en ter into any plan o f pacification, except upon the basis o f their indepen­
dence. The recognition o f their independence w as deferred fo r several years in deference to the
authority o f the H oly Alliance. S p a m declared that such recognition would be regarded by her as
an act o f h ostility. T heir independence was recognized in 1822, after a contest o f tw elve years.
The sym pathy o f th e American p eople for the Spanish patriots w as sincere and universal, and
th eir ho stility to the government a n d institutions o f Spain was equally strong. The proxim ity of
the Spanish provinces to our ow n country, and their inability on account o f their want o f vessels-
of-w ar, to cope w ith Spain upon th e sea, rendered it difficult to prevent our citizens from giving
them aid in their struggle for lib erty . It w as still m ore difficult to allay the suspicions o f the
European governm ents o f our com plication w ith the revolutionists.
H.R. R ep. No. 100, supra, at 3.
68
1 M essages and Papers o f the Presidents, supra, at 361 (emphasis added). In
reviewing the amendments proposed, and the proclamations issued, by Presi­
dents Jefferson and Madison during the colonial rebellions against Spain, the
House Committee on Foreign Affairs in 1866 reported:
It is impossible to suppose that provisions so repressive upon
American commerce, so hostile to the cause of liberty in the
colonies, and so strongly in favor of a government whose prin­
ciples were so repugnant to the people as those of Spain, were
voluntarily adopted. They had their origin in the interests of
European governments hostile to the cause of the colonies. But
it was not this consideration alone that led to their permanent
enactment. The established policy of the government was that of
peace with all nations. To maintain this policy it waived, both at
home and abroad, interests to which, under other circumstances,
it would have resolutely adhered. The declarations of Washing­
ton upon this subject are too familiar to require repetition. They
were accepted by a ll his successors.
H.R. Rep. No. 100, supra, at 4 (emphasis added). See generally Fenwick,
supra, at 31—41.
This theme has been sounded again and again by Presidents throughout the
history of our Nation. President Van Buren, in 1838, admonished American
citizens against arming themselves in support of the Canadian revolt against
Great Britain, and warned that “any persons who shall compromit [sic] the
neutrality of this Government by interfering in an unlawful manner with the
affairs of the neighboring British Provinces will render themselves liable to
arrest and punishment under the laws of the United States, which will be rigidly
enforced.” 3 M essages and Papers o f the President, supra, at 481.
Likewise, Presidents Tyler and Fillmore issued proclamations in 1849 and
1851, respectively, warning against hostile expeditions into Cuba and Mexico;
in 1854 and again in 1858 Presidents Pierce and Buchanan warned against
individual involvement in support of belligerent factions in Nicaragua; in 1870
President Grant warned against American participation in the Cuban revolution
against Spain; and in 1912 President Taft issued a proclamation warning Americans
against assisting Mexican insurgents. See generally Fenwick, supra, at 41-48.
The drafters of the Neutrality Act did not define the phrase “at peace” as it is
used in the Act. Indeed, it does not appear that the issue was the subject of
debate. However, given the underlying goals of the statute, it is reasonable to
conclude that the phrase “at peace” describes the state of affairs in which there
is an absence of a congressionally declared war. In a letter to Gouvemeur
Morris, the United States Minister to France, in 1793, Jefferson wrote:
If one citizen has a right to go to war of his own authority, every
citizen has the same. If every citizen has that right, then the
nation (which is composed of all it’s [sic] citizens) has a right to
69
go to war, by the authority of it’s individual citizens. But this is
not true either on the general principles of society, or by our
Constitution, which g iv e s that p o w er to Congress alone, & not
to the citizens individually.
6 W ritings o f Thomas Jefferson, supra, at 371, 381 (emphasis added). Yet,
during President Jefferson’s administration, as well as those of Presidents
following him during the early years of the 19th century, Presidents repeatedly
authorized military expeditions into territories against which Congress had not
declared war, as well as the arming of vessels to be used against nations against
which Congress had not declared war, with no indication that those Presidents,
or the Congresses that were sitting at the time, understood such missions to
violate the Neutrality Act.
For example, in 1801, President Jefferson dispatched naval forces to Tripoli,
after the Pasha of Tripoli increased his demands for tribute to the Barbary
pirates and declared war upon the United States. The United States naval action
in the Mediterranean extended over a five-year period, during which Lieuten­
ant Decatur destroyed the frigate “Philadelphia,” which had been captured and
converted by the Tripolitans. In 1806, after issuing a proclamation declaring
that information had been received of preparations for an expedition against the
dominion of Spain and warning all persons against taking any part in it,14
President Jefferson ordered Captain Zebulon Pike and his platoon to invade
Spanish Territory at the headwaters of the Rio Grande on a secret mission. In
1810, President Madison ordered the Governor of Louisiana to occupy dis­
puted territory in West Florida, east of the Mississippi, with troops;15 in 1813
14 See Fenw ick, supra, at 33.
15 A ccording to A braham D. Sofaer’s account o f the expeditions ordered by President M adison into the
F loridas and the northern coast of South A m erica in War, Foreign Affairs and Constitutional Power: The
Origins 296, 300, 303 (1976):
M adison w rote Jefferson that the crisis in W est Florida presented “senous questions, as to the
authority o f the Executive, and th e adequacy o f the existing law s o f the U.S. for territorial
adm inistration.*’ He expressed the fear that acting before C ongress had convened would subject
an executive o rd er “to the charge o f being prem ature and disrespectful, if not o f being illegal.”
N o response from Jefferson has b een found; but, w hatever Jefferson’s view, M adison decided to
proceed unilaterally and vigorously . . . [without congressional approval].
A fter P resident M adison presented C ongress w ith the fa it accompli, in the ensuing debate, Sofaer w rites that
Senator C lay persuaded his colleagues w ith the following rem arks:
The p resident has not, therefore, vio lated the C onstitution, and usurped the w ar-m aking power,
but he w ould have violated that provision which requires him to see that the law s are faithfully
executed, if he had longer forborne to act . . . . H ad the President failed to exercise the
discretionary pow er placed in him , . . . he would have been crim inally inattentive to the dearest
interests o f this country.
Sofaer then concludes:
O ne can fairly state th at Madison acted w ith far m ore independence and vigor in W est Florida
than h is e arlier conception of p residential pow er w ould have allow ed. He plotted in secret, used
agents and troops, threatened force, and eventually proclaim ed and effectuated the occupation o f
an area ruled by Spain. He did these things w ithout calling back C ongress, and kept his
proclam ation secret until it was safely im plem ented. [However,] his actions . . . were largely
consistent with the view of presidential power advocated by Hamilton and most Federalists . . . .
Congress had . . . provided troops, and most early Federalists would have agreed that the
President had discretion to use the troops in executing any o f his constitutional responsibilities.
(E m phasis added.)
70
President Madison ordered United States Marines into Spanish Territory, and
in 1816-17, on two occasions, he ordered United States forces into Spanish
Florida, during the “Seminole Wars.” In 1817, President Monroe sent United
States forces to Amelia Island, in the Spanish Territory, to expel smugglers and
privateers.
Notwithstanding the many Presidential Proclamations against American
involvement in the colonial rebellions against Spain during the early 19th
century, there are documented no less than seven invasions by the United
States Armed Forces, ordered by Presidents Madison and Monroe, without a
declaration of war or other prior congressional authorization, into Spanish
Territory. In President Jackson’s administration there are seven such docu­
mented expeditions into Haiti, the Falkland Islands, Argentina, Sumatra, and
Peru, all nations with which the United States was at peace. Likewise, in 1837
President Van Buren ordered the Marines to capture a Mexican brig of war, and
in 1839, to land in Sumatra in retaliation for attacks on American ships. In
addition, President Pierce, after warning American citizens against involving
themselves in civil infractions in Nicaragua, sent United States naval forces to
Grey town, Nicaragua in 1853 and again in 1854 to quell civil disturbances
there and to protect the lives of American citizens stationed there. Between
1840 and 1900 there were nearly one-hundred documented, and, undoubtedly,
many more undocumented, instances of invasions by American forces, at the
behest of the President, of nations with which the United States was at peace.
See generally Emerson, War Pow ers Legislation, 74 W. Va. L. Rev. 53 app.
(1971).
This legislative history, when considered together with the historical circum­
stances surrounding the passage of the Act, provides overwhelming support for
the view that the Act was not intended to apply to military activities pursued, or
otherwise sponsored, by the Government.16 This conclusion is strengthened
even more by the fact that Jefferson was a member of the President’s Cabinet
and Madison was a member of the Congress during the period in which the
16 Although the question may be raised whether the drafters in fact distinguished betw een Presidentially
authorized and congressionaliy approved actions in excepting from the A ct’s prohibitions “governm ent-
authorized” acts, the m any historical exam ples noted in this mem orandum , as well as a recognition o f the
necessity o f ensuring the President’s ability to respond rapidly to changing world events, compel us to
conclude that, short o f acts constituting a declaration o f w ar, Presidential authorization is sufficient under the
Act. See also S ofaer, supra, at 359. Sofaer notes that many M em bers o f C ongress cam e to President M onroe’s
defense during congressional debate regarding his actions in the Floridas, arguing that the President was not
lim ited to fighting only wars formally declared war by C ongress, but could authorize m ilitary actions short o f
war. R epresentative A lexander Smyth o f V irginia rem arked on the floor of the House:
It by no m eans follow s, as some seem to suppose, that because the President cannot declare
war, that he can do nothing for the protection o f the nation, and the assertion o f its rights The
pow er to declare w ar is a power to announce regular war, or w ar in form, against another Power.
But it never was intended, by reserving this pow er to Congress, to take from the President the
pow er to do any act necessary to preserve the nation’s rights, and which does not put the nation
into a state o f war w ith another Power. If C ongress, in addition to the pow er o f d eclanng war,
assum e to them selves the power o f directing every movem ent o f the public force that m ay touch
a neutral; o r that may be made for preserving the national rights; or executing the law s and
treaties; they will assum e powers given to the President by the C onstitution.
33 Annals o f Congress 678 (1819).
71
Proclamation of 1793, which gave rise to the Neutrality Act, was issued and the
Neutrality Act was debated and passed. Both construed the Act to apply only to
unauthorized acts of private individuals and not to acts properly carried out
pursuant to Presidential authority, as evidenced by their numerous military
ventures, some of which are noted above, into nations with which the United
States was officially at peace. Such contemporaneous interpretations of laws
by “the founders of our Government and framers of our Constitution when
actively participating in public affairs” has been held by the Supreme Court to
be near conclusive proof of the proper construction to be accorded provisions,
particularly when such interpretations are long acquiesced in. See, e.g., J.W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394, 411-12 (1926). See also
U nited States v. Curtiss-Wright Export Corp., 299 U.S. 304, 322-29 (1936);
The P ocket Veto Cases, 279 U.S. 655, 688-90 (1929); M yers v. United States,
272 U.S. 52, 175 (1926); M artin v. H unter’s Lessee, 14 U.S. (1 Wheat.) 304,
351-52 (1816); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803).17
Moreover, given the Act’s purpose to enhance the President’s ability to
implement the foreign policy goals that have been developed by him, with
appropriate participation by Congress, it would indeed be anomalous to inter­
pret the Act to prohibit Government officials, acting properly within the course
and scope of their authority, from carrying out the orders of the President, “the
sole organ of the nation in its external relations and its sole representative with
foreign nations” in pursuit of those goals. See United States v. Curtiss-Wright
E xport Corp., 299 U.S. at 319. Although the fact that the Act was not intended
to apply to government-sponsored activity was not made explicit in the Act’s
text, our view is supported by the general rule of statutory construction, which
holds that unless affirmative reasons indicate otherwise, “statutes which in
general terms divest pre-existing rights or privileges will not be applied to the
sovereign without express words to that effect.” U nited States v. United Mine
Workers, 330 U.S. 258, 272 (1947). See also Hancock v. Train, 426 U.S. 167(1961). For these reasons, we believe that the purposes of the Act, as expressed
by President Washington, his Cabinet, and the Members of Congress, together
with the undeniable history of government-sponsored military expeditions into
countries with which the United States has been at peace, and subsequent
legislation, compels the conclusion that the Act was not intended to proscribe
such official activity.
II. Post-Enactment History: Applications of the Act
The first prosecutions for violating the various provisions of the Neutrality
Act were all brought against private individuals, for knowingly committing
acts of hostility, unauthorized by the Government, against nations with which
the United States was at peace. See, e.g., United States v. Peters, 3 U.S. (3
17 A lthough these cases refer to the construction o f constitutional provisions, the analytical principle
announced by the C ourt may also be used to gain insight into the proper construction of statutes.
72
Dali.) 121 (1795); The Betty Carthcart, 17 F. Cas. 651 (D.S.C. 1795) (No.
9742); The Nancy, 4 F. Cas. 171 (D.S.C. 1795) (No. 1898). The legal issue in
these early cases focused on what constituted the “arming” of a vessel, the
distinction between “commercial” and “hostile” intent, and the authority of the
United States Government to define the political bodies in whose service, and
against which, the prohibited acts had been committed, and not on whether the
Act prohibited the Government from engaging in such activity. See, e.g.,
Wiborg v. United States, 163 U.S. 632 (1896); United States v. Quincy, 31 U.S.
(6 Pet.) 445 (1832); United States v. Guinet, 2 U.S. (2 Dali.) 321 (1795); United
States v. Skinner, 27 F. Cas. 1123 (C.C.D.N.Y. 1818) (No. 16309). See also 21 Op.
Att’y Gen. 267 (1895); 13 Op. Att’y Gen. 177 (1869); 3 Op. Att’y Gen. 739 (1841),
In none of these early cases or opinions was there any discussion of the
applicability of these provisions to expeditions led or authorized by govern­
ment officials, yet, as noted above, there has been documented during this
period numerous instances of military ventures by United States forces into
countries with which the United States was “at peace,” and, no doubt, many
more instances of providing assistance to nations engaged in belligerent acts
against nations with whom the United States is “at peace.” See generally
Emerson, War Pow ers Legislation, supra. Although some commentators have
argued that for purposes of the Neutrality Act, a distinction should be made
between the use of regular United States Armed Forces, which would not be
covered, and the use of other government-sponsored “paramilitary” groups,
which would be covered, see Lobel, The Rise and Decline o f the Neutrality Act,
supra, no historical evidence has been cited in support of this distinction.
The fact that during the years immediately following the passage of the Act,
expeditions into the Central and South American territories were launched by
private parties, groups of individuals acting pursuant to Presidential authority,
and United States troops, and that only the individuals involved in the first
category of expeditions were prosecuted, supports the view that the Act was
intended to apply no more to “paramilitary” troops then to the regular “armed
forces” troops, when acting under orders of the President.
To be sure, courts construing the Act during the 19th century understood its
provisions to prohibit “individuals [from] being at war whilst their government
is at peace”:
The rule is founded on the im propriety and danger o f allowing
individuals to make w ar on their own authority, or, by mingling
themselves in the belligerent operations of other nations, to run
the hazard of counteracting the policy or embroiling the rela­
tions of their own government___By these laws it is prescribed
to the citizens of the United States, what is understood to be
their duty as neutrals by the law of nations, and their duty also
which they owed to the interest and honor of their own country.
United States v. O ’Sullivan, 27 F. Cas. at 376 (emphasis added). See also
United States v. Three Friends, 166 U.S. 1, 52, 53 (1897) (“[N]o nation can
73
permit unauthorized acts of war within its territory in infraction of its sover­
eignty . . . . [T]he act [was passed]. . . in order to provide a comprehensive code
in prevention of acts by individuals within our jurisdiction inconsistent with
our own authority.”) (emphasis added).
Moreover, courts in the nineteenth century clearly recognized the President’s
constitutional preeminence in the area of foreign policy, and the discretion
vested in him and his authorized agents by the Constitution regarding such
affairs. Although we are aware of no court decisions from the nineteenth
century ruling on challenges, brought under the Neutrality Act, to military
actions taken by the President or his agents,18 in 1860, the circuit court for the
Southern District of New York, ruled that it was entirely lawful for the
President to order the shelling of a town in Nicaragua in 1854 that had refused
to redress damages incurred by American officials during a riot there.19 In
rejecting a claim for damages against the naval commander who had carried
out the President’s orders, the court held:
As the executive head of the nation, the president is made the
only legitimate organ of the general government, to open and
carry on correspondence or negotiations with foreign nations, in
matters concerning the interests of the country or of its citizens.
It is to him, also, that the citizens abroad must look for protec­
tion of person and of property, and for the faithful execution of
the laws existing and intended for their protection. For this
purpose, the whole executive power of the country is placed in
his hands, under the constitution, and the laws passed in pursuance
thereof; and different departments of government have been
organized, through which this power may be most conveniently
executed, whether by negotiation or by force a department of
state and a department of the navy.
* * *
I have said, that the interposition of the president abroad, for
the protection of the citizen, must necessarily rest in his discre­
tion; and it is quite clear that, in all cases where a public act or
order rests in executive discretion, neither he nor his authorized
agent is personally civilly responsible for the consequences. As
was observed by Chief Justice Marshall, in M arbury v. M adi­
son, 1 Cranch [5 U.S. 137], 165 [(1803)]: “By the constitution of
18 But see Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal, 1984), discussed below.
19 The facts, as alleged, were:
th at the com m unity at Greytown [N icaragua] had forcibly usurped the possession o f the place,
and erected an independent governm ent, not recognized by the U nited States, and had perpetrated
acts o f violence against the citizens o f the U nited States and their property, and had, on demand
fo r redress refused it, and that th e defendant, under public orders from the president and
secretary, as a com m ander in the nav y , and then in com m and o f the C yane, did cause the place to
be bom barded and set on fire, as he law fully might fo r the cause aforesaid.
Durand v. Hollins, 8 F. C as. I l l , 111 (1860).
74
the United States, the president is invested with certain impor­
tant political powers, in the exercise of which he is to use his
own discretion, and is accountable only to his country in his
political character, and to his own conscience. To aid him in the
performance of these duties, he is authorized to appoint certain
officers, who act by his authority, and in conformity with his
orders. In such cases, their acts are his acts, and whatever
opinion may be entertained of the manner in which executive
discretion may be used, still there exists, and can exist, no power
to control that discretion.”
Durand, 8 F. Cas. at 112. This incident, involving the use of American military
power in Nicaragua, is one of seven documented instances of the use of
military force by the United States in Nicaragua between 1853 and 1912, none
of which was formally authorized by Congress. See Emerson, War Pow ers
Legislation, supra. We are not aware of any instance in which there were
demands or suggestions that the President’s authorizing of such activities be
prosecuted under the Neutrality Act.
Throughout the nineteenth and early twentieth centuries, Presidents sent
American forces on innumerable military expeditions without prior congres­
sional approval. For example, in 1853, Commodore Perry, pursuant to orders
of President Pierce, led an expedition consisting of four men-of-war to Japan to
negotiate a commercial treaty; and in 1854 he returned to Japan with ten armed
ships to conclude the negotiations. In 1900, during the Boxer Rebellion,
President McKinley ordered 5,000 troops to China to join the international
military force protecting foreign legations; and in 1918, President Wilson
committed 8,000 American troops to the Allied effort in Russia to counter the
Bolshevik Revolution. See generally Emerson, War Powers Legislation, supra.
In none of these instances were allegations of violations of the Neutrality Act
raised by either Congress or the American public.
Prior to the court’s recent ruling in Dellum s v. Smith, 577 F. Supp. 1449(N.D. Cal. 1984), discussed in Part III below, the only instance in the Act’s
history of nearly two centuries in which a court had considered the question of
its applicability — in particular, the applicability of § 5 (18 U.S.C. § 960) — to
expeditions “authorized” by the Government involved a claim by private
individuals, strenuously denied by the Government, of Government complicity
in their mission. See United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806)
(No. 16342). In that case, Smith defended against the charge that he had set out
on an expedition “against the dominions of Spain in South America,” in
violation of § 5, id. at 1233, by arguing that the expedition “was begun,
prepared, and set on foot with the knowledge and approbation of the President
of the United States, and . . . of the Secretary of State of the United States.” Id.
at 1196. Although Administration officials disavowed any knowledge of Smith’s
expedition, the court charged the jury to determine Smith’s guilt or innocence
without regard to the President’s alleged approval or disapproval of the ven­
75
ture, because the President “cannot control the statute, nor dispense with its
execution, and still less can he authorize a person to do what the law forbids.”
Id. at 1230. The Court stated:
If, then, the president knew and approved of the military expedi­
tion set forth in the indictment against a prince with whom we
are at peace, it would not justify the defendant in a court of law,
nor discharge him from the binding force of the act of congress;
because the president does not possess a dispensing power.
Does he possess the power of making war? That power is
exclusively vested in congress.
Id.
As Smith was on a private mission, completely unrelated to the conduct of
the official foreign policy of the United States, the court’s language is dicta.
Nevertheless, the Smith decision constitutes a single piece of data, in a volumi­
nous body, concerning the Neutrality Act which appears to be inconsistent with
our construction of the Act and our reading of the Act’s legislative history. We
believe that to the extent the court’s language implies that the Act was intended
to criminalize military endeavors directed by the President which are consis­
tent with the Government’s overall foreign policy agenda as developed by the
President with appropriate participation by Congress, this decision is incor­
rectly decided. Moreover, its precedential value is completely undermined by
contrary logic, legislative history, statutory construction principles, and his­
torical practice. As discussed at considerable length above, it seems clear that
the Act was intended to punish only unauthorized expeditions, undertaken by
individuals acting in a private capacity, which would contravene or undermine
the official foreign policy of the United States.20
The foregoing constitutes a survey of contemporaneous and other21 histori­
cal constructions of the language of the Act’s provisions. Although this history,
20 T his conclusion is particularly reinforced in the Smith case by reference to the fact that the prosecution
w as b rought by P resident Jefferson, “w ith the concurrence o f Mr. M adison, secretary o f state,” for com m it­
ting private acts, inconsistent with United States foreign policy, in violation o f the sovereignty o f the federal
governm ent. See United States v. O'Sullivan, 27 F. Cas. at 375 (discussing Smith). Clearly, as evidenced by
the foregoing history o f numerous m ilitary ventures launched by both Jefferson and M adison (after the latter
becam e P resident in 1809), the prosecution was brought precisely because Sm ith’s acts were unauthorized
R egarding P resident Jefferso n ’s having in stituted the Smith prosecution, the O ’Sullivan court concluded, “so
it seem s the policy and intent of this law has alw ays been understood by the executive under every
adm in istratio n .” Id. at 376.
21 In 1917, the A ct w as supplemented b y the addition o f several related neutrality provisions passed in an
A ct com m only referred to as the “Espionage A ct,” 40 Stat. 217.
O ne o f the neutrality provisions enacted as a part o f the Espionage Act is presently codified at 18 U.S.C.
§ 956, w hich prohibits “tw o o r more persons w ithin the ju risd ictio n o f the U nited States [froml conspir[ing]
to injure o r destroy specific property situ ated w ithin a foreign country and belonging to a foreign governm ent
w ith w hich the U nited States is at p e a c e .” O nly one prosecution appears to have been brought under this
provision. United States v. Elliott, 266 F. Supp. 318 (S.D .N .Y . 1967), and in that case, the defendant raised
selective prosecution and equal protection claim s. In dism issing those claim s, the court stated:
He has not offered evidence even touching upon an exam ple of any other person who conspired
to destroy property in any nation w ith which the U nited States w as clearly at peace and w ho was
Continued
76
with few exceptions, supports the view that the Act was not intended to
proscribe military expeditions undertaken by the Government, the strongest
support for this position may be in the more recent history of extensive covert
“paramilitary” activity, authorized by the President and carried out by his
agents, with varying degrees of disclosure to Congress, in nations against
which Congress has not declared war. We turn now to that history.
III. Contemporary History of the Act
No recent President has refused to commit United States regular armed
forces or “paramilitary” operatives, depending upon the need, to actual hostili­
ties because of a lack of congressional declarations or approval when, in the
exercise of his “inherent” powers over the conduct of foreign affairs,22 and in
the fulfillment of his constitutional duty to “take Care that the Laws be
faithfully executed,” U.S. Const, art. II, § 3, and of his role as “Commander-in-
Chief of the Army and Navy of the United States,” id. § 2, it is his judgment
that such action is necessary to preserve the national security of the United
States. Among the more well-known examples of such actions are those of
President Truman in Korea, President Eisenhower in Lebanon, President
Kennedy in Cuba and Southeast Asia, Presidents Johnson and Nixon in South­
21 ( . . . continued)
not prosecuted. Instead, he has raised situations such as North Vietnam or the Bay o f Pigs where
government complicity would effectively bar any prosecution.
Id. at 324 (em phasis added).
The other set o f provisions enacted w ith the espionage laws authorized the President, “ [d]unng a w ar in
which the U nited States is a neutral nation” to enforce the United States* posture o f neutrality by requiring
“owner[s], m aster!s], or person[s] in com m and” o f any vessels within the jurisdiction o f U nited States ports
to “furnish p ro o f satisfactory to the President, or to the person duly authorized by him, that the vessel w ill not
be em ployed . . . to com m it hostilities upon the subjects . o f any foreign prince or state . . . with which the
U nited States is at peace . . . and that the said vessel will not be sold o r delivered to any belligerent nation,
. . . within the jurisdiction o f the United States, or, having left that jurisdiction, upon the high seas.” 40 Stat.
at 221-22; 18 U.S.C. § 963. See also 18 U.S.C. §§ 964-967. Section 964 provides in part that
[d]uring a w ar in which the United States is a neutral nation, it shall be unlawful to send out o f the
U nited States any vessel b u ilt,. . . as a vessel o f war . . . with any intent or under any agreem ent
or contract that such vessel will be delivered to a belligerent n a tio n ,. . . or w ith reasonable cause
to believe that the said vessel will be employed in the service o f any such belligerent nation after
its departure from the jurisdiction o f the United States.
Section 964 codifies the substantive rule o f international law forbidding the delivery of arm ed vessels to
belligerent pow ers by neutral nations that § 963 authorized the President to enforce. See H.R. Rep. No. 30,
65th C o n g , 1st Sess. 9 (1917).
In 1940, A ttorney General Jackson construed this provision to preclude the President from dispatching to
the B ntish G overnm ent, in exchange for certain services pursuant to an Executive A greem ent, “m osquito
boats” which were at the tim e under construction for the U nited States Navy, because they w ould have been
“built, arm ed, o r equipped w ith the intent, o r with reasonable cause to believe, that they would enter the
service of a belligerent after being sent out o f the jurisdiction o f the U nited States.” 39 Op. A tt’y Gen. 484,
496 (1940). A lthough som e com m entators have suggested that Attorney General Jackson’s opinion supports
the view that all o f the N eutrality Act provisions were intended to apply to G overnm ent activities, we believe
that § 964 by its term s is lim ited to circum stances involving a declared war, unlike the other neutrality laws,
and was proposed to C ongress by Attorney General G regory in 1917 for the purpose of providing “for the
observance o f obligations im peratively im posed by international law upon the U nited States.” H.R. Rep. No.
30, supra, at 9.
12 See United States v Curtiss-Wright Export Corp., 299 U.S. 304 (1936)
77
east Asia and Chile, President Ford in Angola, and President Carter in Iran. See
gen erally Senate Select Comm, to Study Governmental Operations with re­
spect to Intelligence Activities, Final Report on “Foreign And Military Intelli­
gence,” S. Rep. No. 755, 95th Cong., 2d Sess. (Book I) (1976) (Church
Committee Report); Emerson, War Pow ers Legislation, supra; Monaghan,
P residen tial War-Making, 50 B.U. L. Rev. 19 (1970).23
Although all of these actions generated some controversy— in fact, one may
fairly say that virtually all of them generated heated debate and remain contro­
versial today — no significant doubt was ever cast on the legality of the
President’s conduct under the Neutrality Act.
In addition to the numerous documented uses of troops by Presidents without
congressional authorization, the Eisenhower, Kennedy and Johnson adminis­
trations alone conducted over 400 covert military operations in countries with
which the United States was “at peace,” including Laos, Angola and Cuba.
Church Committee Report, supra, at 46.24 In none of the many instances of
such action has there been raised a credible allegation or serious debate in
Congress regarding possible violations of the Neutrality Act.
Moreover, there is strong contemporary evidence that the Neutrality Act is
not regarded by Congress as applying to military deployments by the President
or covert activities of the Central Intelligence Agency or the Department of
Defense. This evidence takes the form of the recent enactment by Congress of
provisions to “regulate” the President’s use of the regular armed forces and of
covert operations conducted by the CIA and the Department of Defense. The
War Powers Resolution,25 the Hughes-Ryan Amendment to the 1974 Foreign
Assistance Act,26 the Intelligence Authorization Act,27 the “Boland Amend­
23 L ess w ell-rem em bered examples include President E isenhow er's evacuation o f United States nationals
from Egypt d uring the Suez crisis in 1956; the 5,000 troops that President Eisenhow er sent to Beirut to
“ protect A m erican lives” and “assist” L ebanon in preserving its political independence during Lebanon's
civil “ strife” in 1958; and President Jo h n so n ’s “airlift” actions in the C ongo in 1964 during the civil rebellion
in that country as well as his deployment o f troops in the D om inican R epublic in 1965. See Em erson, War
Powers Legislation, supra.
24 “C overt action” w as defined by the Senate Select Com m ittee on Intelligence A ctivities as “clandestine
activity d esig n ed to influence foreign governm ents, events, organizations or persons in support of U.S.
foreign policy conducted in such a way th a t the involvem ent o f the U.S. G overnm ent is not apparent.” Church
C om m ittee R eport, supra, at 131.
25 In brief, the W ar P ow ers Resolution, 50 U.S.C. §§ 1541-1548, purports to require the President to report
to C ongress w ithin 48 hours o f introducing U.S. A rm ed Forces, inter alia, “ into hostilities or into situations
w here im m inent involvem ent in hostilities is clearly indicated by the circum stances,” and to term inate such
use w ithin 60 days, unless Congress has declared w ar o r enacted a specific authorization for such use.
26 T he H ughes-R yan Amendment, 22 U .S.C . § 2422, provides:
N o funds appropriated under the authority o f this o r any other Act may be expended by or on
b e h alf o f the C entral Intelligence A gency fo r operations in foreign countries, o ther than activities
intended solely fo r obtaining n ecessary intelligence, unless and until the President finds that each
such op eratio n is im portant to the national security o f the U nited States and reports, in a timely
fashion, a d escription and scope o f such operation to the appropriate com m ittees o f the Congress,
including the C om m ittee on Foreign R elations o f the U nited States Senate and the Com m ittee on
Foreign A ffairs o f the United S ta te s H ouse o f Representatives.
27 T he A ct, 50 U .S.C . § 413(a)(1), continued the H ughes-R yan A m endm ent’s executive reporting require­
m ent, but lim ited the reporting to the S enate and H ouse Select C om m ittees on Intelligence. It also provided
that the D irector o f C entral Intelligence had to give prior, instead o f tim ely, notice o f “any significant
C ontinued
78
ment” to the Further Continuing Appropriation Act of 1983,28 and the similar
restrictions adopted by Congress in the Intelligence Authorization Act for
Fiscal Year 1984,29 all purport to impose various reporting requirements and
expenditure limits on the President regarding the conduct of military activities,
which necessarily embrace activities that would otherwise be prohibited by the
Neutrality Act if carried out by individuals acting without Government authori­
zation.
These provisions constitute an explicit recognition by Congress of the
President’s authority to conduct such activities against countries with whom
the United States is “at peace” within the meaning of the Act. The Church
Committee, after extensive hearings and exhaustive study of the matter over a
period of fifteen months, concluded:
The argument that through the provision of funds to the CIA
Congress has effectively ratified the authority of the CIA to
conduct covert action rests on the assumption that. . . Congress
has known that the CIA was engaged in covert action and has
provided funds to the CIA with the knowledge and intent that
some of the funds would be used for covert action.
* * *
One of the reasons offered for the 1974 Amendment to the
Foreign Assistance Act was that it would ensure that Congress
would have sufficient information about covert action to deter­
mine if such activities should continue.
* * *
[Although the actual state of congressional knowledge about
covert action prior to the 1970s is unclear[,] Congress . . . now
knows that the CIA conducts covert action. Congress also knows
that the Executive claims Congress has authorized the Agency
27 (. . . continued)
anticipated intelligence activity.” O nly under extraordinary circum stances is the President authorized not to
provide a full report to these com m ittees, and even then he m ust (a) report to the chairm an and ranking
m inority member o f each com m ittee and other leaders o f Congress, (b) provide notice in a timely fashion
subsequent to the covert operation taking place, and (c) provide a statem ent o f the reasons fo r not giving prior
notice. 50 U.S.C § 413(a), (b).
28 The Boland A m endm ent to the Act, Pub. L. No. 97-377, 96 Stat. 1830, 1865, provided:
N one o f the funds provided in this Act may be used by the Central Intelligence A gency or the
Department o f D efense to fum ish m ilitary equipm ent, military training or advice, or other
support for m ilitary activities, to any group o r individual, not part o f a country’s arm ed forces,
for the purpose o f overthrow ing the G overnm ent o f N icaragua or provoking a m ilitary exchange
betw een N icaragua and H onduras.
29 T he 1984 restriction provides:
D uring fiscal year 1984, not more than $24,000,000 o f the funds available to the Central
Intelligence A gency, the D epartm ent o f D efense, o r any other agency or entity o f the United
States involved in intelligence activities m ay be obligated o r expended for the purpose or which
w ould have the effect of supporting, directly or indirectly, m ilitary or param ilitary operations in
N icaragua by any nation, group, organization, m ovement, o r individual.
Pub. L. No. 98 -2 1 5 , 97 Stat. 1475.
79
to do so. Finally, Congress knows that the CIA receives its funds
through secret transfers of funds appropriated to the Department
of Defense and that some of the transferred funds are used to
finance cover the action. In the future the failure by Congress to
prohibit funds from being used for covert action by the CIA
would clearly constitute congressional ratification of the CIA’s
authority, eliminating any ambiguity.
Church Committee Report, supra, at 498, 499, 501 (footnotes omitted).
Moreover, these provisions were enacted with virtually no discussion of the
Neutrality Act, which suggests that Congress did not view the Act as being
relevant to Presidentially authorized expeditions, whether they be covert ac­
tivities of the Central Intelligence Agency or the Department of Defense, or
overt activities of the United States Armed Forces. In addition, such legislation
constitutes a recognition by Congress of the historic practice of Chief Execu­
tives, as well as of the changing nature of military operations and the increasing
complexity in foreign alliances, which require the President to be able to
respond immediately to world crises and threats to national security, short of
usurping Congress’ constitutional prerogative to declare war.30
Notwithstanding the overwhelming support for the view that the Act was not
intended to apply to Government officials acting pursuant to Presidential
orders, and particularly in view of the recent explicit congressional authoriza­
tions of CIA activity in foreign countries noted above, the United States
District Court in Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal. 1984),31
recently ordered the Attorney General to conduct a preliminary investigation,
pursuant to Title VI of the Ethics in Government Act, 28 U.S.C. §§ 591-598, to
determine whether allegations that Government officials had violated the Neu­
trality Act by their recent actions in Nicaragua warranted application for the
appointment of an independent counsel under the Ethics in Government Act.
Although not directly deciding that issue, the court noted that “the history of
the Neutrality Act and judicial precedent demonstrate the reasonableness of the
view that the Act applies to all persons, including the President.” 577 F. Supp.
at 1454 (emphasis added). The action was brought as a mandamus action by a
Member of Congress, in his capacity as a private citizen, and two other citizens,
alleging that they had sustained various injuries from the Government’s activi­
ties concerning Nicaragua, to compel the Attorney General to conduct a pre­
30 W hen asked about the applicability o f the N eutrality A ct to covert activities carried out during the
K ennedy A dm inistration, A ttorney General R obert K ennedy replied:
T here have been a num ber of inquiries from the press about our p resent neutrality laws and the
p o ssib ility o f th eir application in connection with the struggle for freedom in Cuba.
First, m ay I say that the neutrality law s are among the oldest law s in our statute books. M ost of
the provisions date from the first years o f our independence and, w ith only minor revisions, have
continued in force since the 18th century. Clearly they were not designed for the kind o f situation
which exists in the world today.
Statem ent o f A ttorney G eneral Kennedy to th e Press (Apr. 20, 1961) (cited in Lobel, The Rise and Decline of
the Neutrality Act, supra, 24 Harv. Int’l L. J. a t 44 n.243.)
31 See also Dellums v. Smith, 577 F. Supp. 1456 (N.D. C al. 1984) (denial o f stay); Dellums v. Smith, 573 F.
Supp. 1489 (N .D . Cal. 1983).
80
liminary investigation, pursuant to the Ethics in Government Act, into whether
the President and other Executive Branch officials had violated the Act. In
concluding that the Neutrality Act could reasonably be construed to proscribe
official Government activity, for purposes of invoking the Ethics in Govern­
ment Act,32 the court relied primarily on United States v. Smith, the deficien­
cies of which we have noted above.33 Although Dellums, unlike the Smith case,
cannot be dismissed as not involving truly “official” Government conduct, we
nevertheless believe that the case was erroneously decided. The United States
Court of Appeals for the Ninth Circuit has stayed the district court’s order
pending resolution of the issue on appeal.34
Conclusion
As we have demonstrated, the Neutrality Act was enacted primarily to
protect the territorial sovereignty and independence of the United States from
foreign entanglements during the early years of its history, as well as to
enhance its ability to conduct a unified and consistent foreign policy, unim­
peded by the acts of individual citizens. That purpose has remained constant
through its several amendments and codifications over the last two centuries.
With the two possible exceptions noted in this memorandum of district court
decisions, the Act has been consistently construed by Presidents, Congresses,
and judges to apply to unauthorized acts of individuals. All prosecutions
brought under the Act have been brought against individuals on unauthorized
missions pursuing private “foreign policy” goals. Although the fact that the Act
was not intended to apply to Government officials acting within the course and
scope of their official duties was not made explicit in the text of the Act, we
believe that the historical circumstances surrounding its enactment, together
with the historical practice of Presidents from times contemporaneous with the
Act’s passage to the present day, compel the conclusion that neither § 960 of
the Act, nor any of its other provisions, impose criminal sanctions on the
activities carried on by the Central Intelligence Agency and its agents, under
the President’s direction, in Nicaragua.
T h eo d o r e B . O lson
Assistant Attorney General
Office o f Legal Counsel
32 The court stated'
The present question is thus lim ited to w hether the view is reasonable that the N eutrality Act
proscribes the activities alleged by plaintiffs. For reasons set forth below, the question m ust be
answ ered in the affirm ative.
577 F. Supp. at 1452.
33 The other evidence cited by the court in support o f its conclusion appeared to be lifted, w holesale, out o f
p la in tiffs b rief without any further consideration. Even given this, the court intim ated an am bivalent view of
the evidence, when it noted that “ [t]he contention that the N eutrality Act reaches executive officials is at least
as persuasive as d efen d an t's claim that it does not " 577 F Supp. at 1452.
34 NOTE: A fter this opinion was issued by the O ffice o f Legal Counsel, the court o f appeals reversed the
d istnct c o u rt's decision in Dellums on the ground that the plaintiffs lacked standing to bring the action. See
Dellums v. Smith, 797 F.2d 817 (9th Cir. 1986)
81