    Authority of the Federal Bureau of Investigation
             To Override International Law
     In Extraterritorial Law Enforcement Activities

At the direction of the President or the Attorney General, the FBI may use its statutory
   authority to investigate and arrest individuals for violating United States law, even if the
   FBI’s actions contravene customary international law.

The President, acting through the Attorney General, has the inherent constitutional author­
  ity to deploy the FBI to investigate and arrest individuals for violating United States law,
  even if those actions contravene customary international law.

Extraterritorial law enforcement activities that are authorized by domestic law are not
  barred even if they contravene unexecuted treaties or treaty provisions, such as Article
  2(4) of the United Nations Charter.

An arrest that is inconsistent with international or foreign law does not violate the Fourth
  Amendment.

                                                                             June 21, 1989

               M e m o r a n d u m O p in io n   fo r the   Attorney G eneral


   This memorandum responds to the request o f the Federal Bureau o f
Investigation ( “FBI”) that we reconsider our 1980 opinion that the FBI
has no authority under 28 U.S.C. § 533(1) to apprehend and abduct a fugi­
tive residing in a foreign state when those actions would be contrary to
customary international law. Extraterritorial Apprehension by the
Federal Bureau of Investigation, 4B Op. O.L.C. 543 (1980) (the “ 1980
Opinion” or “Opinion”). After undertaking a comprehensive review o f the
applicable law, we conclude that the 1980 Opinion erred in ruling that the
FBI does not have legal authority to carry out extraterritorial law
enforcement activities that contravene customary international law.
   First, we conclude that, with appropriate direction, the FBI may use its
broad statutory authority under 28 U.S.C. § 533(1) and 18 U.S.C. § 3052 to
investigate and arrest individuals for violations o f United States law even
if those investigations and arrests are not consistent with international
law. Second, we conclude that the President, acting through the Attorney
General, has inherent constitutional authority to order the FBI to investi­
gate and arrest individuals in a manner that departs from international
law. The international law that may be abridged in this manner includes
                                                 163
not only customary international law but also Article 2(4) o f the U.N.
Charter and other unexecuted treaties or treaty provisions that have not
become part o f the domestic law o f the United States. Finally, we reaffirm
the conclusion o f the 1980 Opinion that an arrest departing from interna­
tional law does not violate the Fourth Amendment, and we further con­
clude that an arrest in violation o f foreign law does not abridge the
Fourth Amendment.1
   We caution that this memorandum addresses only whether the FBI has
the legal authority to carry out law enforcement operations that contra­
vene international law. It does not address the serious policy considera­
tions that may weigh against carrying out such operations.

                                      I. The 1980 Opinion

   The 1980 Opinion addressed the legal implications o f a proposed oper­
ation in which FBI agents would forcibly apprehend a fugitive in a foreign
country that would not consent to the apprehension. That Opinion
acknowledges that 28 U.S.C. § 533(1), the statute authorizing FBI investi­
gations, contains no explicit geographical restrictions. It also refers to a
previous opinion issued by this Office that concluded that the statute’s
general authorization to detect and prosecute crimes against the United
States appears broad enough to include such law enforcement activity no
matter where it is undertaken.2 4B Op. O.L.C. at 551. The 1980 Opinion
asserts, however, that customary and other international law limits the
reach o f section 533(1). Under customary international law, as viewed by
the 1980 Opinion, it is considered an invasion o f sovereignty for one
country to carry out law enforcement activities within another country
without that country’s consent. Thus, the Opinion concludes that section
533(1) authorizes extraterritorial apprehension o f a fugitive only where
the apprehension is approved by the asylum state. Id.



  1The 1980 Opinion concluded that FBI agents who participate in overseas arrests in violation o f inter­
national law might be subject to civil liability Because w e now conclude that FBI agents do have author­
ity to engage in such actions, we do not believe they w ill be subject to civil liability. We do not discuss
that issue in this memorandum, however, because the FBI agreed that our opinion concerning the FBI's
substantive authority should precede any analysis o f civil liability issues. See Memorandum fo r John O
McGinnis, Deputy Assistant Attorney General, O ffice o f Legal Counsel, from Margaret Love, Deputy
Associate Attorney General (Mar 15, 1989).
  Th e 1980 Opinion also addressed several other issues, including whether bringing a fugitive before the
court b y forcible methods would impair the court’s pow er to try the fugitive. We agree with the 1980
O pinion’s conclusion that, absent cruel o r outrageous treatment, the fact that the fugitive was brought
within the court’s jurisdiction by means o f forcible abduction would not impair the court’s pow er to try
the fugitive. See Pnsbie v Colltns, 342 U.S. 519 (1952); K er v. Illinois, 119 U S. 436 (1886), United States
v. Toscanino, 500 F.2d 267 (2d Cir 1974). We do not reconsider any issues addressed by the 1980 Opinion
that are not specifically discussed in this memorandum.
  2 The referenced opinion is a June 8, 1978 Memorandum for the Counselor to the Attorney General,
from the Deputy Assistant Attorney General, Office o f Legal Counsel, on FBI investigative activities in a
foreign country (the “ 1978 Opinion”)

                                                    164
    The Opinion supports this conclusion with “two distinct but related
lines o f analysis.” Id. at 552. First, citing The Schooner Exchange v.
McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) (Marshall, C.J.), the
Opinion concludes that the authority o f the United States outside its ter­
ritory is limited by the sovereignty o f other nations. The Opinion does not
explain the juridical source o f this limitation on the authority o f the
United States. In The Schooner Exchange, however, Chief Justice
Marshall relies on customary international law for many o f his conclu­
sions, and this part o f the 1980 Opinion appears to suggest that custom­
ary international law imposes absolute jurisdictional limitations on the
United States’ lawmaking authority.
    Second, the Opinion implicitly relies on the principle o f statutory con­
struction that statutes should be construed, when possible, so as to avoid
conflict with international law. The Opinion notes that a statute imposing
a duty ordinarily is construed to authorize all reasonable and necessary
means o f executing that duty. The Opinion concludes that although the
law enforcement methods at issue may be necessary to carry out the FBI
agents’ duties under section 533(1), those methods are “unreasonable”
and hence, unauthorized, if executed in violation o f international law.
Thus, the Opinion concludes that without asylum state consent, “the FBI
is acting outside the bounds o f its statutory authority when it makes an
apprehension o f the type proposed here — either because § 533 could not
contemplate a violation o f international law or because the powers o f the
FBI are delimited by those o f the enabling sovereign.” Id. at 553.
   The 1980 Opinion’s impact on the ability o f the United States to execute
necessary law enforcement operations may be significant. The reasoning
o f the 1980 Opinion would seem to apply to a broad range o f law enforce­
ment activities other than forcible apprehension. United States law
enforcement agents frequently are required to travel to foreign countries
to conduct investigative activities or to meet foreign informants. Formal
consent cannot always be obtained from the foreign government, and
indeed, in many cases to seek such consent would endanger both the
agents and their investigation. Although such activities are less intrusive
than forcible apprehension and removal o f the fugitive, under the 1980
Opinion they nonetheless may be viewed as encroachments on the asy­
lum state’s sovereignty and hence, violations of international law, if not
authorized by that state. See Ian Brownlie, Principles o f Public
International Law 307 (3d ed. 1979) ( “Brownlie”) ( “Police or tax investi­
gations may not be mounted ... on the territory o f another state, except
under the terms o f a treaty or other consent given.”); 6 Marjorie M.
Whiteman, Digest of International Law 179-83 (1968) (describing inci­
dents in which American authorities sought and received permission
from host country to interview persons held in foreign custody and to
examine records). Thus, the 1980 Opinion has the potential to preclude
the United States not only from apprehending fugitives in foreign eoun-

                                    165
tries, but also from engaging in a variety o f more routine law enforcement
activities.
   The United States is facing increasingly serious threats to its domestic
security from both international terrorist groups and narcotics traffick­
ers. While targeting the United States and United States citizens, these
criminal organizations frequently operate from foreign sanctuaries.
Unfortunately, some foreign governments have failed to take effective
steps to protect the United States from these predations, and some for­
eign governments actually act in complicity with these groups.
Accordingly, the extraterritorial enforcement o f United States laws is
becoming increasingly important to the nation’s ability to protect its own
vital national interests.

                                            II. Analysis

A. The Scope o f the F B I’s Statutory Authority

   The general investigative authority o f the FBI derives from 28 U.S.C. §
533(1), which provides that “ [t]he Attorney General may appoint officials
to detect and prosecute crimes against the United States.” This provision
was first enacted in 1921 as part o f the Department o f Justice
Appropriations Act, ch. 161, 41 Stat. 1367, 1411 (1921). As originally
enacted, it also provided that the officials appointed by the Attorney
General “shall be vested with the authority necessary for the execution of
[their] duties.” Id. This provision was carried forward in successive
appropriations acts and received permanent codification in 1966. Pub. L.
No. 89-554, § 4(c), 80 Stat. 378, 616 (1966). At that time, the reference to
“necessary” authority was dropped as surplusage because “the appoint­
ment o f the officials for the purposes indicated carries with it the author­
ity necessary to perform their duties.” H.R. Rep. No. 901, 89th Cong., 1st
Sess. 190 (1965).
   The FBI’s arrest authority derives from 18 U.S.C. § 3052,3 which pro­
vides:

             The Director, Associate Director, Assistant to the
          Director, Assistant Directors, inspectors, and agents o f the
          Federal Bureau of Investigation o f the Department o f
          Justice may carry firearms, serve warrants and subpoenas
          issued under the authority o f the United States and make
          arrests without warrant for any offense against the United
          States committed in their presence, or for any felony cog­
          nizable under the laws o f the United States if they have rea­


  3   The 1980 Opinion did not discuss section 3052, apparently believing that section 533(1) also provided
the authonty fo r the FB I’s pow er to make arrests

                                                      166
          sonable grounds to believe that the person to be arrested
          has committed or is committing such felony.

   We believe, consistent with earlier opinions o f this Office, that sections
533(1) and 3052 authorize extraterritorial investigations and arrests.4
Section 533(1) has been described as granting “broad general investiga­
tive power.” United States v. Marzani, 71 F. Supp. 615, 617 (D.D.C. 1947),
aff’d, 168 F.2d 133 (D.C. Cir.), affd, 335 U.S. 895 (1948) (per curiam).
Section 3052 confers an equally broad arrest power. Neither statute by its
terms limits the FBI’s authority to operations conducted within the
United States.5 Moreover, reading these sections as applying extraterrito-
rially accords with Congress’ intent to give certain criminal statutes
extraterritorial reach.6 In many statutes, Congress has extended the
United States’ substantive criminal jurisdiction extraterritorially. See,
e.g., 18 U.S.C. § 844(i) (enacting penalties for destruction o f property
used in foreign commerce); 18 U.S.C. § 1116(c) (implementing Con­
vention on the Prevention and Punishment o f Crimes Against Inter­
nationally Protected Persons); 18 U.S.C. § 1203(b)(1) (implementing
Hostage Convention); 49 U.S.C. § 1472(1) (enacting penalties for carrying
weapons or explosives aboard aircraft). These statutes are enforced
principally by the FBI. In order for the FBI to have the authority neces­
sary to execute these statutes, its investigative and arrest authority must
have an equivalent extraterritorial scope.7


 4 Our 1978 Opinion concluded that section 533(1) authorized extraterritorial investigations, and our
1980 Opinion did not disagree with that conclusion.
  6The Court repeatedly has held that Congress’ intent to have its laws apply extraterritorially need not
he explicitly stated where the statute involves the sovereign’s ability to defend itself against cnm cs
against the sovereign See, e g , Blackmer v United States, 284 U S 421, 437 (1932), United States v.
Bowman, 260 U S. 94, 98 (1922).
  6Courts frequently have held that Congress has the pow er to criminalize extraterritorial conduct,
whether committed by American citizens or foreign citizens, if the conduct (i) threatens the country’s
security or interferes with governmental operations or (ii) is intended to have an illegal effect in the
United States. See e g , United States v Columba-Colella, 604 F.2d 356, 359 (5th Cir 1979) (collecting
cases), United States v King, 552 F2d 833 (9th Cir. 1976), cert denied, 430 U.S. 966 (1977) As the Court
held in United States v Bowman, cnminal statutes that are enacted because o f the government’s right
to defend itself must apply abroad, otherwise, “to limit their locus to the stnctly territorial junsdiction
would ... greatly curtail the scope and usefulness o f the statute ” 260 U.S at 98 Although Bowman
involved Congress’ prescnptive power, the Court also applied this pnnciple to an enforcem ent action in
Blackmer v. United States Blackmer upheld a contempt citation against an American citizen residing in
France who refused to appear as a witness in a criminal trial. The Court noted that the sovereign’s pow er
to protect itself would be meaningless if the court’s enforcement powers were not coextensive with the
legislature’s pow er to cnminalize the conduct See 284 U.S at 438-39
  7Other considerations support this conclusion. As discussed infra at p. 172, a general enabling statute
that confers broad authority on an agency to effectuate core executive functions should, absent explicit
restnction, be read as conferring on the agency authonty that is commensurate with the inherent ex ec­
utive functions it is effectuating Since the President’s law enforcement authonty has extraterritonal
scope, the FBI’s basic statutory authority should be read as having the same scope.
  It has been suggested to us that because professional bail bondsmen lack power to arrest bail jumpers
outside the tem to ry o f the United States, seeKearv. Hilton, 699 F2d 181, 182 (4th Cir 1983), FBI agents
                                                Continued


                                                   167
B. The Effect o f Customary International Law on the F B I’s
   Extraterritorial Powers

   The 1980 Opinion offers tw o bases for its conclusion that customary
international law limits the FBI’s extraterritorial powers. First, the
Opinion asserts that the FBI’s powers are delimited by those o f the
enabling sovereign and that the United States itself lacks the legal author­
ity to take actions that contravene customary international law. The
implication is that both Congress and the Executive are powerless to
authorize actions that impinge on the sovereignty o f other countries.
Second, the Opinion concludes that the FBI’s statutory authority must be
read as constricted by the requirements o f customary international law.
We conclude that both bases fo r decision are erroneous.

   1. Effect on the Sovereign’s Power

   The 1980 Opinion was clearly wrong in asserting that the United States
is legally powerless to carry out actions that violate international law by
impinging on the sovereignty o f other countries. It is well established that
both political branches — the Congress and the Executive — have, with­
in their respective spheres, the authority to override customary interna­
tional law. Indeed, this inherent sovereign power has been recognized
since the earliest days of the Republic.
   In The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812),
Chief Justice Marshall explicitly stated that the United States has the
authority to override international law. At issue was whether a French
warship was immune from judicial process within the territory o f the
United States. Relying on customary international law, Marshall conclud­
ed that it was immune, but stated that the Court had followed these cus­
tomary international law principles only in default o f any declaration by
the United States government that they were not to be followed:

          It seems then to the Court, to be a principle o f public law,
          that national ships o f war, entering the port o f a friendly
          power open for their reception, are to be considered as
          exempted by the consent o f that power from its jurisdiction.




  7(.. continued)
similarly lack extraterritorial arrest authority, regardless o f whether the arrest violates international law.
However, the arrest authority o f professional bail bondsmen is denved from common law, see Taylor v.
Taintor, 83 U.S (16 Wall ) 366, 371 (1872), and thus is amenable to judicial limitation; this does not sug­
gest that the F B I’s broad statutory authority under 28 U S C. § 533 and 18 U S.C. § 3052 may be similar­
ly limited Indeed, because responsibility fo r the conduct o f foreign relations is vested in the Executive,
not pn vate citizens, it is appropriate that the Executive’s authonty should extend extraterritonally, while
the authority o f bail bondsmen should be deem ed restncted to the boundaries o f the United States.


                                                     168
          Without doubt, the sovereign of the place is capable of
          destroying this implication. He may claim and exercise
          jurisdiction, either by employing force, or by subjecting
          such vessels to the ordinary tribunals. But until such power
          be exerted in a manner not to be misunderstood, the sover­
          eign cannot be considered as having imparted to the ordi­
          nary tribunals a jurisdiction, which it would be a breach of
          faith to exercise.

Id. at 145-46 (emphasis added).8
  Chief Justice Marshall unequivocally reaffirmed the validity o f this
principle in Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), in
which he stated:

          This usage [the rule o f customary international law] is a
          guide which the sovereign follows or abandons at his will.
          The rule, like other precepts o f morality, o f humanity, and
          even o f wisdom, is addressed to the judgment o f the sover­
          eign; and although it cannot be disregarded by him without
          obloquy, yet it may be disregarded.

Id. at 128 (emphasis added). The understanding that the political branch­
es have the power under the Constitution to exercise the sovereign’s right
to override international law (including obligations created by treaty) has
been repeatedly recognized by the courts. See The Paquete Habana, 175
U.S. 677, 700 (1900) (courts must apply customary international law
unless there is a treaty or a controlling executive or legislative act to the
contrary); The Chinese Exclusion Case, 130 U.S. 581, 602 (1889) (noting
that “[t]he question whether our government is justified in disregarding
its engagements with another nation is not one for the determination o f
the courts”); Diggs v. Shultz, 470 F.2d 461, 466 (D.C. Cir. 1972) (stating
that “[u]nder our constitutional scheme, Congress can denounce treaties
if it sees fit to do so”), cert, denied, 411 U.S. 931 (1973); Tag v. Rogers, 267
F.2d 664, 668 (D.C. Cir. 1959) (concluding that “ [w]hen, however, a con­
stitutional agency adopts a policy contrary to a trend in international law
or to a treaty or prior statute, the courts must accept the latest act o f that



  8   In concluding that the United States does not have the legal authonty to assert extraterritorial
enforcement jurisdiction in violation o f international law, the 1980 Opinion relies exclusively on a state­
ment in The Schooner Exchange that the “pow er o f a nation within its own territories, must be traced up
to the consent o f the nation itself. They can flo w from no other legitimate source.” 11 U S. (7 Cranch) at
136. However, this statement was made in connection with explaining that any restriction on an
American court’s jurisdiction over the foreign warship could not flow from an external source, but had
to be based on domestic law. Id The statement thus provides no support fo r the 1980 Opinion’s analysis.
Moreover, the Opinion ignores the case’s explicit recognition o f the principle that a sovereign has the
pow er to act inconsistently with customary international law.


                                                   169
agency”), cert, denied, 362 U.S. 904 (1960); The Over the Top, 5 F.2d 838,
842 (D. Conn. 1925) (stating that “[international practice is law only in so
far as we adopt it, and like all common or statute law it bends to the will
o f the Congress”). Leading commentators also agree that the United
States, acting through its political branches, has the prerogative to take
action in disregard o f international law.9
    Indeed, the sovereign’s authority to override customary international
law necessarily follows from the nature o f international law itself.
Customary international law is not static: it evolves through a dynamic
process o f state custom and practice. States ultimately adhere to a norm
o f practice because they determine that upholding the norm best serves
their long-run interests and because violation o f the norm may subject
the nation to public obloquy or expose it to retaliatory violations. See
Brow n v. United States, 12 U.S. (8 Cranch) 110 (1814). States necessari­
ly must have the authority to contravene international norms, however,
for it is the process of changing state practice that allows customary
international law to evolve.10 As Chief Justice Marshall stated in Brown,
“ [t]he rule is, in its nature, flexible. It is subject to infinite modification. It
is not an immutable rule o f law, but depends on political considerations
which may continually vary.” 12 U.S. (8 Cranch) at 128. If the United
States is to participate in the evolution o f international law, the Executive
must have the pow er to act inconsistently with international law where
necessary. “It is principally the President, ‘sole organ’ o f the United States
in its international relations, who is responsible for the behavior o f the
United States in regard to international law, and who participates on her


  9A s P rofessor Henkin has noted, “the Constitution does not forbid the President (o r the Congress) to
violate international law, and the courts w ill give effect to acts within the constitutional powers o f the
political branches without regard to international la w ” Louis Henkin, Foreign Affairs and the
Constitution 221-22 (1972). The Restatement also expressly maintains that Congress by subsequent
enactment may supersede a rule o f international law or international agreement. See Restatement
(T h ird ) o f the Foreign Relations Law o f the United States § 11 5 (l)(b ) (1987) ( “Restatement (Third)")- The
reporters’ notes also agree that “[t]here is authority for the view that the President has the power, when
acting within his constitutional authonty, to disregard a rule o f international law or an agreement o f the
United States/ Id § 1 5 (l)(b ) note 3 W hile the Restatement (Third) does not explicitly address whether
the President or his delegate may violate international law when acting pursuant to statutory rather than
constitutional authonty, this proposition appears to be a direct corollary to the Restatement (Th ird )’s
conclusion with respect to legislative authority. I f Congress has the authonty to enact a statute contrary
to international law, it may also enact a statute that delegates to the Executive authonty that can be exer­
cised contrary to international law Thus, w e believe that the Restatement (Third) substantially agrees
w ith our vie w that the political branches, under the authonty o f either constitutional or statutory domes­
tic law, legally may act in a manner that is inconsistent with international law
   10A recent exam ple involves international territory and econom ic sovereignty over the seas In 1945,
the contiguous sea outside the tem tonal sea (from three to twelve m iles) was generally considered to
be international w aters See Brownlie, supra, at 218. Shortly thereafter, however, a number o f states
began asserting 200-rrule fishery conservation zones Id. These claims were, at times, supported by mili­
tary force. Sayre A. Swarztrauber, The Three-Mile L im it o f Territorial Seas 152-77 (1972). The interna­
tional law norm that w aters beyond the tem ton al sea w ere not subject to the junsdiction o f the coastal
states collapsed. Restatement (Third), supra, § 5 1 4 (l)(a ). By 1979, there was general acceptance o f an
exclu sive econom ic zone o f 200 miles Brownlie, supra, at 219-20.

                                                       170
behalf in the indefinable process by which customary international law is
made, unmade, remade.” Louis Henkin, Foreign Affairs and the
Constitution 188 (1972). Thus, the power in the Executive to override
international law is a necessary attribute o f sovereignty and an integral
part of the President’s foreign affairs power. Indeed, the absence o f such
authority in the Executive would profoundly and uniquely disable the
United States — rendering the nation a passive bystander, bound to fol­
low practices dictated by other nations, yet powerless to play a role in
shaping those practices.11
   Thus, we think it clear that, contrary to the 1980 Opinion’s assertions,
customary international law does not impose absolute legal limits on the
power of the United States to exercise its law enforcement jurisdiction in
foreign countries. Both the Congress and the President, acting within
their respective spheres, retain the authority to override any such limita­
tions imposed by customary international law.

   2. Effect on the FBI’s Statutory Authority

   We also believe that the 1980 Opinion erred in concluding that the
statutes granting the FBI its investigative and arrest powers must be con­
strued as limited by customary international law. The 1980 Opinion notes
that a conventional rule o f statutory construction states that where a
statute prescribes a duty, by implication it authorizes all reasonable and
necessary means to effectuate that duty. 4B Op. O.L.C. at 552. The
Opinion concludes, based principally on the disapproval expressed in
several academic journals, that an extraterritorial apprehension is
“unreasonable,” and hence, unauthorized, when it violates international
law. Id. at 552. In substance, though not explicitly, the 1980 Opinion relies
on the canon o f statutory interpretation — enunciated in Murray v.
Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) — that a



  11   Because customary international law consists o f evolving state customs and practice, it is an inher­
ently uncertain area o f law, from which clear rules rarely emerge Some extraterritorial law enforcement
actions in which the FBI might engage without the foreign country’s consent would not necessarily con­
travene international law. For instance, because sovereignty over territory derives not from the posses­
sion o f legal title, but from the reality o f effective control, see Brownlie, supra, at 117-18, logic would sug­
gest there would be no violation o f international law in exercising law enforcement activity in foreign
territory over which no state exercises effective control In addition, if the United States w ere the target
o f attacks that violated international law, it would be justified in making a proportional unilateral
response, even though its actions might otherwise be contrary to international law See generally
Restatement (Third), supra, § 905(1); U.N. Charter art 51 (recognizing a nation’s inherent right o f self-
defense). Other circumstances may exist, as well, under which extraterritorial law enforcem ent is appro­
priate under international law. See generally D Cameron Findley, Abducting Tenvrists f o r Trial in the
United States. Issues o f International and Domestic Law, 23 Tex Int’l L J. 1,25 (1988) (discussing other
such circumstances) In addition, some unilateral actions by the United States, though inconsistent with
pn or international practice, may constitute justifiable efforts by the United States to shape the content
o f international norms. Such unilateral actions may be legitimate means by which the United States sig­
nals its rejection o f a putative norm or seeks to gain acceptance fo r an alternative norm.


                                                      171
statute should be construed when possible so as not to conflict with
international law.12 We believe this line o f analysis is wholly inapposite.
   First, this canon does not apply to the kind o f statutes at issue here.
Sections 533(1) and 3052 are broad authorizing statutes “carrying into
Execution” core Executive powers. See U.S. Const, art I, § 8, cl. 18. In cre­
ating the FBI and conferring on it broad investigative and arrest authori­
ty, Congress has created an agency through which the President carries
out his constitutionally assigned law enforcement functions. Such gener­
al enabling statutes, in the absence o f an explicit restriction, must be read
as conferring on the agency a scope o f authority commensurate with that
o f the Executive. Because, as part o f his law enforcement powers, the
President has the inherent authority to override customary international
law, it must be presumed that Congress intended to grant the President’s
instrumentality the authority to act in contravention o f international law
when directed to do so. Unless Congress places explicit limitations on
the FBI’s investigative and arrest powers, it must be presumed that
Congress did not intend to derogate from Presidential authority by limit­
ing those statutory powers.13
   This presumption is all the more compelling where, as here, the
President’s foreign relations powers are implicated. Courts have long rec­
ognized that delegations o f discretion involving the President’s constitu­
tional powers must be construed broadly, especially in matters involving
foreign affairs. See e.g., Dames & Moore v. Regan, 453 U.S. 654, 677
(1981) (Hostage Act and International Emergency Economic Powers Act,



  12Actually, M urray v. Schooner Charming Betsy, 6 U S. (2 Cranch) 64 (1804), and Launtzen v Larsen,
345 U S. 571, 578 (1953), are examples o f cases applying the general rule o f construction that prescrip­
tive statutes not expressly purporting to apply extraterritorially ordinarily w ill not be presumed to have
such an effe ct The presumption anses in those cases where it is apparent that extraterritorial applica­
tion o f a legal prohibition would gratuitously interfere with the sovereignty o f foreign countries, while
not advancing the United States’ interest in preserving its own sovereignty In Schooner Charming Betsy,
fo r example, the Court held that a non-intercourse act prohibiting trade between the United States and
France could not be applied to justify seizure o f a Danish ship 6 U.S (2 Cranch) at 118. To d o so would
have needlessly infringed on Danish sovereignty without protecting the interest o f the United States in
prohibiting its own citizens from trading with an enemy. However, such cases certainly cannot be read
as suggesting that Congress does not have the power to enact statutes with extraterritorial effect. Nor do
such cases apply w here Congress actually intends a statute to have extraterritorial reach See Blackmer
v. United States, 284 U S. at 437, United States v. King, 552 F.2d at 850-51.
   13The court in United States v Postal, 589 F.2d 862 (5th Cir.), cert denied, 444 U.S. 832 (1979), recog­
nized the need to apply enforcement statutes broadly to effectuate Congress’ intent to reach certain drug
trafficking. It held that the statute granting the power to search and seize vessels m all cases in “‘which
the United States has jurisdiction,’" for purposes o f enforcing United States law, granted authonty to the
Coast Guard to seize vessels in violation o f Article 22 o f the Convention on the High Seas Id. at 884 (quot­
ing 14 U S C. § 89(a) (1976)). (The United States was a party to that Convention, but the Court held it was
non-self-executing) The Court based this conclusion on an earlier decision in which it had construed the
statute as granting “junsdiction” in the typ e o f case at issue — a conspiracy to violate federal narcotics
statutes. Id. at 884. Indeed, since the cou rt viewed the statute as ‘“ intended to give the Coast Guard the
broadest authonty available under law,’” it held that a Coast Guard regulation requiring boarding o f ves­
sels only in conform ity with a treaty could not be applied to limit the Coast Guard’s authonty under the
statute. Id at 885 (quoting United States v. Warren, 578 F2d 1058, 1068 (5th Cir. 1978) (en banc))


                                                    172
although not providing specific authorization for the President’s actions,
are still relevant because they “indicate] congressional acceptance o f a
broad scope for executive action” in settling claims against Iran);
Sordino v. Federal Reserve Bank of New York, 361 F.2d 106, 111 (2d Cir.),
cert, denied, 385 U.S. 898 (1961) (noting that especially with respect to
foreign affairs, statutory delegations of power to the President must be
read more broadly than other delegations). See Chicago & Southern A ir
Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 110-14 (1948)
(denying availability o f judicial review over presidential decisions based
on statutory authority involving broad foreign policy matters); see also
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936)
(upholding broad statutory delegation that implicated President’s foreign
affairs responsibilities).14
   In contrast, the 1980 Opinion reverses the presumptions o f our constitu­
tional system. The Opinion imputes to Congress an intent to make the
scope o f domestic legal authority for law enforcement operations depend
on the vague and fluctuating standards of international custom. In effect,
this would delegate to foreign nations the power to define, on a continuing
basis, the content o f United States law, according to standards that are out­
side the direct control o f the political branches. Such an intent should not
be presumed. To the contrary, Congress must be presumed to entrust such
vital law enforcement decisions directly to the democratically accountable
President and his subordinates. See Chevron, U.S.A. v. Natural Resources
Defense Council, 467 U.S. 837 (1984) (holding that it is for the executive
branch, not the judiciary, to make policy choices within the ambit o f dele­
gated statutory authority when Congress has not spoken).
   In enacting sections 533(1) and 3052, Congress was legislating against
the background o f the well-recognized principle that international law is
part o f the law o f the United States only insofar as it has not been over­
ridden by actions o f the political branches. In The Paquete Habana,
Justice Gray stated:

         International law is part o f our law, and must be ascer­
         tained and administered by the courts o f justice o f appro­
         priate jurisdiction, as often as questions of right depending
         upon it are duly presented for their determination. For this
         purpose, where there is no treaty, and no controlling exec­

  14 Two recent cases refusing to apply statutory enforcement jurisdiction abroad are inapposite. See
Commodity Futures Tt'ading Comm’n v. Nalias, 738 F.2d 487, 493 (D.C. Cir. 1984) (C F T C could not
enforce investigative subpoena on foreign citizen in a foreign nation), FTC v. Compagnie de Saml-
Gobam-Pont-a-Mousson, 636 F.2d 1300, 1324-27 (D C Cir 1980) (F TC could not enforce document sub­
poena on a foreign citizen residing abroad). In each case, the agency whose authority was at issue was
an independent agency that exercised statutory authority thought to be shielded from direct presidential
control. Thus, the statutory authorities at issue in those cases, unlike those exercised by the FBI, may
not have been understood to effectuate directly the Presidents constitutional authority, and thus need
not be interpreted as commensurate with that authority.


                                                 173
          utive or legislative act or judicial decision, resort must be
          had to the customs and usages o f civilized nations ....

175 U.S. at 700 (emphasis added). Thus, the Court held that United States
forces unlawfully had seized Cuban fishing vessels as prizes o f war where
such vessels were “exempt by the general consent o f civilized nations
from capture, and ... no act o f Congress or order o f the President ha[d]
expressly authorized [such an action] to be taken.” Id. at 711.
   In 1986, the Eleventh Circuit applied The Paquete Habana to uphold
executive branch action taken pursuant to a broad statutory delegation in
circumstances analogous to those here. In Garcia-Mir v. Meese, 788 F.2d
1446 (11th Cir.), cert, denied, 479 U.S. 889 (1986), the issue was whether
the United States was authorized to detain indefinitely Cuban aliens who
had arrived as part o f the Mariel boatlift, notwithstanding that such a
detention violated customary international law.
   The Attorney General ordered the detention pursuant to 8 U.S.C.
§ 1227(a), which, like 28 U.S.C. § 533(1) and 18 U.S.C. § 3052, contained
a broad grant o f authority to the Attorney General, but did not specifical­
ly authorize indefinite detention.15 With respect to one group o f the
Mariel detainees, the court concluded that there was insufficient evi­
dence o f an express congressional intention to override international law.
Id. at 1453-54.16 The court found, however, that the Attorney General’s
decision to incarcerate them indefinitely constituted a “controlling exec­
utive act” o f the kind required by The Paquete Habana, and the court thus
found that the detention was lawful. Id. at 1454. Garcia-Mir therefore
may be understood as holding that the Executive acting within broad
statutory discretion may depart from customary international law, even
in the absence o f an affirmative decision by Gongress that international
law may be violated.17Accordingly, we believe that Garcia-Mir provides


  15 The relevant portion o f 8 U S.C § 1227(a) provides that u[a]ny alien         arriving in the United States
w h o is excluded under this chapter, shall be immediately d ep orted ,. . unless the Attorney General, in an
individual case, in his discretion, concludes that immediate deportation is not practicable or proper.”
  1CAs to another group o f Manel Cubans — those who had been incarcerated continuously since their
arrival in the United States — the court concluded that Pub L No. 96-533, tit VII, § 716, 94 Stat. 3131,
3162 (1980), provided sufficient evidence o f congressional intention to override international law. See 788
F.2d at 1453-54 n 9.
  17 There are tw o different ways to read the holding in Gaixda-Mir. One is that the Executive has broad
discretionary authority, pursuant to general power delegated by statute, to determine whether to act incon­
sistently with international law Certain language in the district court’s decision suggests that it viewed the
“controlling executive act” as having been taken pursuant to statutory authorization. See Femandez-Roque
v. Smith, 622 F. Supp 887,903 (N D. Ga. 1985) ( “[T]his Court is reluctant to hold that the Attorney General’s
involvement in plaintiffs' detention cannot be considered a ‘controlling executive act,’ especially since
Congress has delegated to the Attorney General broad discretion over the detention o f unadmitted aliens.”)
In affirming, the Eleventh Circuit may have intended to adopt the statutory rationale
  Alternatively, G arcia -M ir may be understood as holding that the President has inherent constitutional
authonty, independent o f the statutory grant o f power, to determine whether to act inconsistently with
international law. The Eleventh Circuit quoted a draft o f the Restatement referring to the President
                                                 Continued


                                                    174
additional support for the proposition that broad statutory grants o f
Executive authority must be interpreted in light o f the political branches’
inherent power to override international norms.18
   In sum, then, we conclude that the FBI has authority under sections 533(1)
and 3052 to cany out overseas investigations and arrests that contravene
customary international law. Those statutes do not explicitly require the FBI
to conform its activities to customary international law, and there is no basis
for gratuitously assuming that Congress intended to impose such limitations
on the FBI. On the contrary, in view of the President’s authority to override
customary international law, it must be presumed that Congress granted the
FBI commensurate statutory authority.19



  17(...continued)
“acting within his constitutional authonty” in support o f its holding, see 788 F.2d at 1454-55, and it may
therefore have been relying on the President’s inherent constitutional authority This is the interpretation
o f G aivia-M ir adopted by the Restatement (Third), supra, § 115, note 3, and particularly by the C hief
Reporter. See Louis Henkin, The Constitution and United States Sovereignty A Century o f Chinese
Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 883-86 (1987) ( “ Henkin”). We think that the decision
in Garcia-M ir is correct under either interpretation
  Professor Henkin disagrees with the result in Garcia-M ir because he does not believe that the
President has an inherent constitutional authority to exclude aliens. See id at 884 n 131. We disagree on
this specific point with Professor Henkin. See United States ex rel Knaujfv. Shaughnessy, 338 U S. 537,
543 (1950) ( “[T]h e pow er o f exclusion o f aliens is also inherent in the executive department o f the sov­
ereign ..”); see also Nishimura Ekiu v. United Stales, 142 U S. 651,659 (1892). In any event, this debate
pertains only to the particular issue in Garcia-Mir, it does not go to the basic question o f whether the
President has inherent constitutional authonty to violate customary or other international law — a
proposition with which both the Restatement (Third) and Professor Henkin agree. Restatement (Third),
supra, § 115, note 3; Henkin, supra, at 882 ( “Thus, a domestic court espousing this view would not, fo r
example, eryoin the President from directing United States officers to overfly another country’s tem to-
ry without that country’s con sen t... or to kidnap a wanted cnminal from a foreign country . (but] would
have to accept such directives as an exercise by the President      o f the prerogative o f the United States
to take such measures regardless o f its international obligations.”).
 18Recent legislation reflects Congress’ intent that the United States be able to exercise its law enforce­
ment powers abroad when necessary to counter international terrorism. For instance, in introducing leg­
islation (now codified at 18 U S C § 2331) to criminalize murder and other acts against U S. nationals
committed abroad, Senator Specter noted that
        In many cases, the terronst murderer will be extradited or seized with the cooperation o f
      the government in whose junsdiction he or she is found Yet, if the terrorist is hiding in a
      country like Lebanon, w here the government, such as it is, is powerless to aid in his removal,
     or in Libya, where the Government is unwilling, we must be willing to apprehend these cnm-
     inals ourselves and bnng them back fo r tnal
131 Cong Rec. 18,870 (1985)
  19We do not here discuss limitations on the scope o f the FBI’s authonty for such actions that may be
denved from other statutes We know o f no provisions by which Congress generally has prohibited the
use o f agents to enforce United States laws contrary to pnnciples o f customary international law. We
believe, however, that such provisions would have to be quite explicit before they would be so construed,
because the extratem tonal enforcement o f United States laws relates to tw o areas o f the President’s con­
stitutional authority — the conduct o f foreign relations and his duty to execute the laws See Youngstown
Sheet & Tube Co v Sawyer, 343 U S. 579, 645 (1952) (Jackson, J., concum ng) ( “I should indulge the
widest latitude o f interpretation to sustain [the President’s] exclusive function to command the instru­
ments o f national force, at least when turned against the outside world for the secunty o f our society.”).
For example, w e do not believe that the Mansfield Amendment circumscnbes the FBI’s authonty to make
arrests abroad fo r violations o f United States anti-drug laws, because its restrictions relate solely to
United States participation in operations to enforce foreign anti-dmg laws See 22 U S C § 2291(c).

                                                    175
C. The President’s Constitutional Power to Authorize Actions
   Inconsistent with Customary International Law

   We believe that the 1980 Opinion also erred because it failed to con­
sider the President’s inherent constitutional power to authorize law
enforcement activities. Pursuant to the constitutional command to “take
Care that the laws be faithfully executed,”20 the President has the power
to authorize agents o f the executive branch to engage in law enforcement
activities in addition to those provided by statute.
   The Court so held in In re Neagle, 135 U.S. 1 (1890). There, the life o f
Justice Field had been threatened, and as a result, the Attorney General
assigned a Deputy United States Marshal to accompany the Justice. Id. at
42-52. While performing the duties assigned to him by the Attorney
General, Neagle shot and killed a man whom he believed was about to
attack Justice Field. Id. at 52-53. Neagle was arrested and charged with
murder by California authorities.
   The Court assumed that the authorizing statute did not empower the
U.S. Marshals or their deputies to accompany and guard Supreme Court
Justices as they traveled through their circuits. Id. at 58. Nevertheless,
the Court held that the constitutional command that the President “shall
take Care that the laws be faithfully executed” gave him the power to
authorize agents o f the executive branch to take enforcement actions in
addition to those provided by statute. Id. at 63-64. The Court concluded
that the President’s constitutional duty is not limited to the enforcement
o f acts o f Congress or treaties according to their terms, but that it
extends also to the “rights, duties and obligations growing out o f the
Constitution itself, our international relations, and all the protection
implied by the nature of the government under the Constitution.” Id. at
64-67. The Court thus concluded that the President had the legal author­
ity, acting through the Attorney General, to direct the Deputy Marshal’s
actions, and that the authority overrode any contrary California law. Id.
at 67-68.21


  20 U.S. Const, art. n, § 3.
  21 See also United Stales ex ret Martinez-Angosto v. Mason, 344 F.2d 673, 688 (2d Cir. 1965) (Friendly,
J., concurring) (noting that congressional silence did not preclude the inference that the President has
the p o w e r to decide w hether to follow provisions o f a non-self-executing treaty)
  Durand v. Hollins, 8 F. Cas. I l l (C C.S D N Y. 1860) (N o . 4,186) is also apposite. In 1854, Lieutenant
Hollins o f the U.S.S. Cyane ordered the bombardment o f Greytown, Nicaragua in retaliation for the fail­
ure o f local authorities to make reparation fo r a mob attack on the United States Consul. Hollins was
then sued for the value o f property alleged to have been destroyed in the bombardment Justice Nelson,
on circuit, held Hollins not liable on the grounds that he was acting pursuant to orders o f the President
and the Secretary o f the Navy He ruled that
      A s the Executive head o f the nation, the President is made the only legitimate organ o f the
      general government, to open and carry on correspondence o r negotiations with foreign
      nations, in matters concerning the interests o f the country or o f its citizens It is to him, also,
      that citizens abroad must look fo r protection o f person and o f property, and fo r the faithful
                                                  Continued


                                                     176
   The Neagle Court pointed particularly to the President’s power in the
area o f foreign affairs as an area in which there exists considerable inher­
ent presidential power to authorize action independent o f any statutory
provision. See id. at 64. The Court’s decision reflects the fundamental
principle stated by John Jay that “ [a]ll constitutional acts o f power,
whether in the executive or in the judicial department, have as much
legal validity and obligation as if they proceeded from the legislature.”
The Federalist No. 64, at 394 (John Jay) (Clinton Rossiter ed., 1961).
   This Office also has previously opined that the President, pursuant to
his inherent constitutional authority, can authorize enforcement actions
independent o f any statutory grant o f power. See Memorandum for
Wayne B. Colbom, Director, United States Marshals Services, from
Leon Ulman, Deputy Assistant Attorney General, Office o f Legal
Counsel, Re: Law Enforcement Authority o f Special Deputies
Assigned to D O T to Guard Against A ir Privacy (Sept. 30, 1970) (the
“ 1970 Opinion”). In that opinion, this Office ruled that the President’s
inherent constitutional authority permitted Department o f Trans­
portation personnel to be deputized as Deputy U.S. Marshals and autho­
rized to carry firearms, to take necessary action to prevent air piracy
while an American carrier is in flight anywhere in the world, and to
make arrests for violations o f United States laws regarding air piracy
and related offenses. Id. at 1. The opinion recognized that there was no
statute expressly authorizing this protection and enforcement action.
Id. at 2.22 Relying on In re Neagle and In re Debs, 158 U.S. 564, 581
(1895), however, it concluded that “since the United States has jurisdic­
tion to punish air piracy and related offenses, it likewise has inherent
authority to take reasonable and necessary steps to prevent these
offenses.” 1970 Opinion at 2-3. In its analysis, the 1970 Opinion noted
that “the exercise o f their authority ... could give rise to conflicts with
the countries involved o f an international nature. But this would not, in


  21 (    continued)
         execution o f the laws existing and intended for their protection. For this purpose, the whole
         executive pow er o f the country is placed in his hands, under the constitution, and the laws
         passed in pursuance thereof; and different departments o f government have been organized,
         through which this power may be most conveniently executed, whether by negotiation or by
         force — a department o f state and a department o f the navy.
           Now, as respects the interposition o f the executive abroad, for the protection o f the lives
         or property o f the citizen, the duty must, o f necessity, rest in the discretion o f the president
         Acts o f lawless violence, or o f threatened violence to the citizen or his property, cannot be
         anticipated and provided for, and the protection, to be effectual or o f any avail, may, not
         unfrequently, require the most prompt and decided action. Under our system o f Government,
         the citizen abroad is as much entitled to protection as the citizen at home The great object
         and duty o f government is the protection o f the lives, liberty, and property o f the people com ­
         posing it, whether abroad or at home, and any government failing in the accomplishment o f
         the object, or the performance o f the duty, is not worth preserving
 Id at 112
 22The authonzing statute o f the U S. Marshals, 18 U S.C. § 3053, like 28 U S C § 33(1) and 18 U S.C
3052, contains no express extraterritorial arrest or enforcement authonty

                                                        177
our view, affect the legality o f their actions under U.S. domestic law.”
Id. at 6.23
   Accordingly, we believe that even if sections 533(1) and 3052 are con­
strued as authorizing enforcement action only within the limits imposed
by international law, the President retains the constitutional authority to
order enforcement actions in addition to those permitted by statute. As
discussed supra pp. 168-71, this constitutional authority carries with it
the pow er to override customary international law. Thus, Executive
agents, when appropriately directed pursuant to the President’s constitu­
tional law enforcement authority, may lawfully carry on investigations
and make arrests that contravene customary international law.

D. The Status o f Article 2 (4 ) o f the U.N. Charter and Other
   Unexecuted Treaties or Treaty Provisions

   To this point, we have discussed the Executive’s power to override cus­
tomary international law. Another issue is whether Article 2(4) o f the
U.N. Charter would prohibit the Executive as a matter o f domestic law
from authorizing forcible abductions absent acquiescence by the foreign
government.24 We do not believe that it does.
   The text o f Article 2(4) does not prohibit extraterritorial law enforce­
ment activities, and we question whether Article 2(4) should be con­
strued as generally addressing these activities. Nevertheless, even if
Article 2(4) were construed as prohibiting certain forcible abductions, we
believe that the President has the authority to order such actions in con­
travention o f the Charter.
   Treaties that are self-executing can provide rules o f decision for a
United States court,25 see Cook v. United States, 288 U.S. 102, 112 (1933),
but when a treaty is non-self-executing, it “addresses itself to the politi­
cal, not the judicial department; and the legislature must execute the
[treaty] before it can become a rule for the Court.” Foster v. Neilson, 27
U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.). Accordingly, the decision
whether to act consistently with an unexecuted treaty is a political issue



 23 We understand that as a matter o f international law the United States may exercise jurisdiction on
United States carriers flying over foreign territories Convention on Offenses and Certain Other Acts
Com m itted On Board Aircraft, Sept 14, 1963, art. 3, 20 U S.T. 2941, 2944 The 1970 Opinion, however, did
not rely on the Convention and, to the contrary, appeared to assume that exercise o f such junsdiction
would be view ed as infringing on the sovereignty o f other nations,
  24A rticle 2 (4 ) provides:
       A ll M em bers shall refrain in their international relations from the threat or use o f force
      against the tem toria l integnty or political independence o f any state, or in any other manner
      inconsistent with the Purposes o f the United Nations.
U.N. Charter, art 2, U 4.
  25See Restatem ent (Th ird ), supra, § 111, introductory note (declaring that “ [ujnder the Supremacy
Clause, self-executed treaties concluded by the United States becom e law o f the United States”), id, §
111, com m ent h (noting that unexecuted treaty does not furnish a rule o f decision in the United States).


                                                    178
rather than a legal one,26 and unexecuted treaties, like customary inter­
national law, are not legally binding on the political branches. The
President, acting within the scope o f his constitutional or statutory
authority, thus retains full authority to determine whether to pursue
action abridging the provisions o f unexecuted treaties.27
   We agree with the 1980 Opinion that Article 2(4) is not self-executing.28
4B Op. O.L.C. at 548. See also Sei F u jii v. State, 242 P.2d 617, 620 (C a l
1952) (human rights provisions o f U.N. Charter not self-executing);
Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C. 1958), affd, 278 F.2d
252 (D.C. Cir.), cert, denied, 364 U.S. 835 (1960) (finding other sections of
Charter not self-executing). Article 2(4) relates to one o f the most funda­
mentally political questions that faces a nation — when to use force in its
international relations. For these reasons, we conclude that as a matter
o f domestic law, the Executive has the power to authorize actions incon­
sistent with Article 2(4) o f the U.N. Charter.29

E. The President’s Ability to Delegate to the Attorney General the
   Power to Authorize Enforcement Actions Inconsistent with
   International Law

  Even though the Constitution vests the “executive power” in the
President, see U.S. Const, art. II, § 1, we do not believe that the President’s
statutory or constitutionally based Executive power to override custom­
ary or other international law can be exercised only by him. Rather, we
believe that this Executive power can be exercised by the Attorney
General as well, and that this conclusion obtains regardless o f whether


  26O f course, there may be significant political reasons for not abridging an unexecuted treaty, ju st as
the President may decide it is politically unwise to act inconsistently with customary international law.
Such political decisions necessarily depend on the facts o f each case, and w e do not address their rami­
fications here.
   27As discussed above, law enforcement activities outside the United States implicate the President’s
constitutional authority to conduct the international relations o f the United States and to execute our
laws Pursuant to these constitutional authorities, the President has the pow er to decide whether o r not
to operate within the terms o f an unexecuted treaty If the President acts inconsistently with the terms
o f a treaty, the treaty is not automatically terminated. It may simply mean that the treaty is rendered inop­
erative to the extent it is inconsistent with the President’s actions. In any event, the determination o f
whether a treaty has been rendered inoperative is largely a decision made by the Executive as part o f the
conduct o f the foreign relations o f the United States. C f Charlton v Kelly, 229 U S 447 (1913) (holding
that the President must decide whether the actions o f a foreign government have voided a treaty)
  28The 1980 Opinion speaks somewhat loosely o f the U N Charter not being “a self-executing treaty.”
4B Op. O L C at 548. More properly, the question should be whether individual provisions o f the treaty
are self-executing See, e g , United States v Postal, 589 F.2d at 884 n 35.
  29We do not address the effect on the FBI’s authority o f treaties that have become part o f United States
law, either because they are self-executing or because they have been implemented by legislation. As
noted above, such treaties do have domestic legal effect, although they can be denounced by the
Executive. C f The Chinese Exclusion Case, 130 U S. 581 (1889). See also Louis Henkin, Foreign Affairs
and the Constitution, supra, at 171 We are unaware, however, o f any treaties o f general application that
would limit the law enforcement authority o f the United States. Applicable treaties should, o f course, be
examined in the context o f any particular operation.


                                                    179
the authority is viewed as derived from statute or from the President’s
 inherent constitutional authority.
   Section 533(1) designates the Attorney General as the responsible
executive branch official. Thus, all enforcement action authorized pur­
suant to this statute, including enforcement action that departs from cus­
tomary or other international law, may be undertaken by the Attorney
General.30 The Garcia-Mir decision, confirmed this conclusion by hold­
ing that the Attorney General performed the “controlling executive act”
that sufficed to override customary international law in that case. 788
F.2d at 1454-55.
   The Attorney General also may exercise the President’s constitutional
pow er to override customary international law because “ [t]he President
speaks and acts through the heads o f the several departments in relation
to subjects which appertain to their respective duties.” Wilcox v.
Jackson, 38 U.S. (13 Pet.) 498, 513 (1839). See also Wolsey v. Chapman,
101 U.S. 755, 769 (1879). Specific direction from the President, or even
explicit invocation o f his authority, cannot reasonably be expected and is
not generally required. 7 Op. A tt’y Gen. 453, 480-82 (1855).31
   Thus, we believe that the Attorney General has the power to authorize
departures from customary o r other international law in the course o f
law enforcement activities and that the President need not personally
approve such actions. We would not recommend, however, that the
Attorney General delegate the authority to more subordinate officials.
Even if he is viewed as exercising statutory authority pursuant to section
533(1) or section 3052, we think that as a prudential matter the Attorney
General should, in this case, exercise it personally. Decisions such as
G a rcia-M ir rely on the theory that the Executive has the constitutional
authority to make political decisions affecting our international relations.
To the extent that such decisions are made by officials below cabinet
rank, however, the factual basis for this theory may be weaker.
   Specifically, we recommend that any overseas law enforcement activi­
ty that presents a significant possibility o f departing from customary or
other international law be approved directly by the President or the
Attorney General. As an administrative matter, the Attorney General may

  30The sam e is true with respect to section 3052.
  31In re Neagle, provides an example o f a case in which the Court upheld the exercise by the Attorney
General o f the President’s inherent constitutional authority 135 U.S at 67-68. More recent examples are
the cases upholding the President’s constitutional authonty to order warrantless wiretaps relatmg to for­
eign intelligence activities. United States v. Butenko, 494 F.2d 593 (3d Cir.) (en banc), cert denied, 419
U.S. 881 (1974), United States v. Brown, 484 F2d 418 (5th Cir. 1973), cert denied, 415 U.S. 960 (1974);
United States v. Truong, 629 F.2d 908 (4th Cir. 1980), cert denied, 454 U S 1144 (1982); United States v
Buck, 548 F.2d 871 (9th Cir.), cert denied, 434 U.S. 890 (1977). In all o f these cases, the warrantless w ire­
taps w ere ordered by the Attorney General, and the courts accepted his authority to act on behalf o f the
President. See also United States v. Ehrlichman, 546 F2d 910, 925-26 (D C Cir. 1976), cert denied, 429
U S . 1120 (1977) (holding that, if a national security exception for warrantless foreign intelligence
searches exists, such searches must be authorized by the President or by “his alter ego for these matters,
the A ttorney General”).


                                                     180
wish to promulgate guidelines specifying what actions could be taken by
the FBI overseas, when consent should be obtained from foreign govern­
ments, and when such consent need not be obtained. Such guidelines
also could provide general authorization for certain types of non-intrusive
law enforcement activities (such as interviews with informants) in for­
eign countries that nonetheless might depart from customary interna­
tional law if not authorized by the foreign government. Nevertheless, it
would be prudent for such guidelines to require individual approval by
the Attorney General for any operation, such as an apprehension and
abduction, that would involve the use o f force in the territory o f another
country without that country’s consent.

F. International and Foreign Law and the Fourth Amendment

   The 1980 Opinion concluded that an arrest in violation o f customary
international law did not violate the Fourth Amendment.32 4B Op. O.L.C.
at 554 n.34. We agree. The Opinion did not address whether the violation
o f foreign statutes or other law would create a Fourth Amendment viola­
tion.33 We conclude that it would not.
   The central question is whether an arrest that violates international law
or foreign statutory law is “unreasonable” within the meaning of the
Fourth Amendment’s proscription o f unreasonable searches and
seizures. The Fourth Amendment is an autonomous rule o f federal law
that represents a judgment by the United States as to the appropriate bal­
ance between individual rights and the authority o f the government to
enforce the law. The Court recently held that state standards for reason­
able searches and seizures are irrelevant to determining whether the


  32The Bill o f Rights applies to actions o f American officials directed at American nationals overseas
Reid v Covert, 354 U S 1, 5-6 (1957). There remains some dispute as to the extent to which the Bill o f
Rights, particularly the Fourth Amendment, applies to actions o f American officials directed at non­
resident aliens overseas Compare Steven A. Saltzburg, The Reach o f the B ill o f Rights Beyond the Terra
F iim a o f the United States, 20 Va J. Int’ l L. 741 (1980) ( “Saltzburg") with Paul B. Stephan III,
Constitutional L im its on International Rendition o f Crim inal Suspects, 20 Va J Int’ l L. 777 (1980)
( “Stephan”) and Paul B Stephan III, Constitutional Lim its on the Struggle Against International
Terrorism: Revisiting the Rights o f Overseas Aliens, 19 Conn L. Rev 831 (1987) The Supreme Court
recently granted certiorari in a case holding the Fourth Amendment applicable to warrantless searches
by DEA officials o f foreign nationals in their ow n country. United States v. Verdugo-Urquidez, 856 F2d
1214 (9th Cir 1988), [rev’d, 494 U S. 259 (1990)]. We are addressing here, however, only the general ques­
tion o f whether a violation o f foreign or international law results in a violation o f the Fourth Amendment,
regardless o f whether the individual arrested is a citizen or alien
  33Presumably this omission was based on the Opinion’s conclusion that the FBI had “the authonty to
violate the local law o f another country as long as that country does not object." 4B Op O.L.C at 552
n.29 This conclusion was principally based on the notion that it is for the sovereign, not an individual,
to determine whether objection should be made to an infnngement on sovereignty Id. While we think
this analysis correctly resolves any question o f violation o f international law, it does not necessarily
answer the Fourth Amendment question, fo r it is at least theoretically possible that the Fourth
Amendment itself contains a requirement that arrests comply with applicable foreign laws I f such a nght
were contained m the Fourth Amendment, it is difficult to see how a foreign government could extin­
guish the individual’s nght by failing to object. We address this issue in the text infra

                                                    181
Fourth Amendment has been violated. California v. Greenwood, 486 U.S.
35 (1988). The Court stated:

          We reject respondent’s] ... alternative argument for affir­
          mance: that his expectation of privacy ... should be deemed
          reasonable as a matter o f federal constitutional law because
          the warrantless search and seizure ... was impermissible as
          a matter o f California law .... We have never intimated ... that
          whether or not a search is reasonable within the meaning of
          the Fourth Amendment depends on the law o f the particular
          State in which the search occurs.... Respondent’s argument
          is no less than a suggestion that concepts o f privacy under
          the laws o f each State are to determine the reach o f the
          Fourth Amendment. We do not accept this submission.

Id. at 43-44. See also Oliver v. United States, 466 U.S. 170, 183-84 (1984)
(police officers who trespassed upon posted and fenced land did not vio­
late the Fourth Amendment, even though their action was subject to
criminal sanctions); Olmstead v. United States, 277 U.S. 438, 466-69
(1928) (illegality o f a wiretap under state law irrelevant in considering
whether evidence was inadmissible under the Fourth Amendment);
Hester v. United States, 265 U.S. 57, 59 (1924) (trespass in “open fields”
does not violate the Fourth Amendment). By analogy, the standards
imposed by the Fourth Amendment, insofar as it applies abroad, see Reid
v. Covert, 354 U.S. 1, 5-6 (1957), must be determined by United States law.
   It would be contrary to the Fourth Amendment’s purpose to incorpo­
rate into it rules o f international law or analogous foreign statutes autho­
rizing only local law enforcement officers to investigate and arrest. Such
laws would have as their purpose the protection o f another country’s sov­
ereignty. In contrast, the Fourth Amendment is concerned with the pro­
tection o f individual rights. As the Fifth Circuit has stated:

          Whether the search and seizure were Fourth-Amendment-
          unreasonable must be established by showing that the
          interests to be served by the Fourth Amendment were vio­
          lated, and not merely by establishing the violation o f gener­
          al principles o f international law.

United States v. Cadena, 585 F.2d 1252, 1264 (5th Cir. 1978).34


  34 In United States v. Peterson, 812 F.2d 486 (9th Cir. 1987), the court reviewed whether evidence
derived from wiretaps illegal under Philippine law was subject to the exclusionary rule Without analy­
sis, the court stated that the “local law o f the Philippines governs whether the search was reasonable ”
Id. at 491 We do not accept this automatic incorporation o f local law into the Fourth Amendment,
because it is inconsistent with California v. Greenwood, 486 U.S. 35 (1988). Moreover, the statement in
Peterson was o f no consequence to the decision because the court proceeded to admit the evidence
under the good faith exception to the exclusionary rule. 812 F2d at 491-92.


                                                  182
      We believe that the requirements o f the Fourth Amendment are met
    when officers with authority under United States law arrest with probable
    cause.35See United Slates v. Reed, 639 F.2d 896, 902 & n.2 (2d Cir. 1981).
    Section 3052 of title 18 authorizes agents of the FBI to arrest without war­
    rant if probable cause exists, which is all the Constitution requires, at least
    for an arrest in a public place. United States v. Watson, 423 U.S. 411, 414-
    17 (1976); Henry v. United States, 361 U.S. 98, 100 (1959).36
      Accordingly, we conclude that an arrest in violation o f foreign law does
    not violate the Fourth Amendment.37 In addition, based on the analysis in
    the 1980 Opinion, we reaffirm that an arrest departing from international
    law does not violate the Fourth Amendment.

                                                IV. Conclusion

       This Office concludes that at the direction o f the President or the
    Attorney General the FBI may use its statutory authority under 28 U.S.C.
    § 533(1) and 18 U.S.C. § 3052 to investigate and arrest individuals for vio­
    lations o f applicable United States law, even if those actions depart from
    customary international law or unexecuted treaties. Moreover, we con­
    clude that the President, acting through the Attorney General, has inher­
    ent constitutional authority to deploy the FBI to investigate and arrest
    individuals for violations o f United States law, even if those actions con­
    travene international law. Finally, we conclude that an arrest that is



      35   There is som e doubt whether the Fourth Amendment standard includes a requirement o f domestic
    law authority to arrest. The 1980 Opinion concluded that it does 4B Op O L C at 553-54. That Opinion
    relied principally on United States v. D i Re, 332 U S 581, 589-92 (1948), a case involving exclusion o f ev i­
    dence obtained incident to an unauthorized arrest by federal officials. But it is not clear that Di Re was
    a Fourth Amendment decision, and it is also unclear that the-Constitution requires statutory or other
    authonty to arrest. See 1 Wayne R. LaFave, Search- and Seizure § 1 5(b) at 107 (2d ed. 1987) (concluding
    that D i Re is not a Fourth Amendment case but “simply an instance o f the court utilizing its supervisory
    pow er to exclude from a federal prosecution evidence obtained pursuant to an illegal but constitutional
    federal arrest”). C f George E Dix, Fourth Amendment Federalism: The Potential Requirement o f State
    Law Authorization fo r Law Enforcement Activity, 14 Am J. Crim L. 1, 10 (1987) ( “There is consider­
    able d o u b t.   as to whether the Court has . . committed itself to the position that the fourth amendment
    reasonableness o f an arrest depends upon the existence o f state Jaw and the arrest’s validity under that
    law.”). In any event, as w e have previously stated, w e believe that authority exists for the Executive to
    authorize the FBI to make arrests in foreign countnes
      3r’ As to an arrest in a non-public place, there are circumstances in which an arrest warrant is required.
    Payton v New York., 445 U S 573, 576 (1980). While presumably an arrest warrant often could be
    obtained, there are limitations to the extraterritonal junsdiction o f the magistrate’s writ See 18 U.S C §§
    3041-3042 Commentators have questioned, however, whether the warrant requirements o f Payton and
    other cases should apply overseas. See Saltzburg, supra, 20 Va J Int’l L. at 762; Stephan, supra, 20 Va. J
    Int’l L at 792 n.44
      37 We note that fear that our agents w ill be extradited for violations o f foreign law during an en force­
    ment operation authonzed by the President or the Attorney General is not a warranted concern The
    Secretary o f State always has discretion to refuse to extradite, even if the offense is covered by an extra­
    dition treaty entered into with another country See 18 U S C. § 3186 (Secretary o f State “may” extradite
    the person committed under section 3184); Stndona v Grant, 619 F.2d 167 (2d Cir 1980), Wacker v.
    Bisson, 348 F.2d 602, 606 (5th Cir 1965).

                                                         183




i
inconsistent with international or foreign law does not violate the Fourth
Amendment.

                                             WIT J JAM P. BARR
                                         Assistant Attorney General
                                           Office o f Legal Counsel




                                   184
