  Presidential Power Concerning Diplomatic Agents and Staff
                    of the Iranian Mission

W h ile th e re is a u th o rity fo r im posing som e tra v e l re stric tio n s on Iranian dip lo m atic
  p erso n n el u n d e r th e V ien n a C o n v e n tio n on D ip lo m atic R e la tio n s an d c u sto m a ry in te r­
  n atio n al law , as w ell as u n d e r d o m e stic law , th o se so u rc e s o f law g e n e ra lly sta te that
  d ip lo m ats m ay not be p laced in c irc u m sta n c e s ta n ta m o u n t to ho u se a rre st, o r barred
  from leav in g th e c o u n try , ev e n as an a c t o f reprisal for b re a c h e s o f d ip lo m atic im m u­
  n ity b y Iran .

S u b jectin g Iran ian d ip lo m a tic p erso n n el to p ro secu tio n u n d e r the crim in al p ro v isio n s o f
   th e In te rn a tio n a l E m e rg e n c y E c o n o m ic P o w e rs A c t, e v e n if d o n e in reprisal for
   Iran ian b re a c h e s o f in tern atio n a l law an d acco m p a n ie d by all ap p licab le p ro te c tio n s
   affo rd ed by th e U n ited S tates C o n s titu tio n , w o u ld raise serio u s q u estio n s u n d er in te rn a ­
   tional law .

                                                                                              January 8, 1980

 M EM ORANDUM O PIN IO N FOR T H E A TTORNEY G EN ER A L

   On November 14, 1979, you asked this Office to review certain
questions relating to the situation in Iran, and during the last few weeks
we have provided you our views on a number of these questions orally.
In this memorandum we summarize the central legal issues involved in
taking actions against Iranian diplomatic personnel in this country, and
set forth our reasoning and conclusions. We address, principally, the
following questions:
   1) May the President restrict the movement of Iranian diplomatic
       agents and staff personnel within the United States, including, if
       necessary, confinement to embassy grounds;
   2) May he prevent these persons from departing the country;
   3) May he subject these persons to prosecution for violations of the
       International Emergency Economic Powers Act, 50 U.S.C.
       § 1705?
   We conclude that although the President may possess constitutional
and statutory power to take any or all of these actions, each of them
raises serious international law questions.
       I. Restricting the Movement of Members of the Iranian Mission

A. International Law

  The rights of diplomatic personnel are governed by the Vienna
Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227,
                                                         174
 T.I.A.S. No. 7502, ratified by Iran, the United States, and all major
countries of the world. Any doubts that may have existed concerning
 whether the Treaty automatically became part of our domestic law
 upon its ratification have been removed by the recent passage of the
 Diplomatic Relations Act, 22 U.S.C. §§ 254a-256, a major purpose of
which was to codify the Convention’s immunity provisions as part of
our law. See generally S. Rep. No. 958, 95th Cong., 2d Sess. (1978).
   As an introductory matter, the Convention and the Act establish
categories of diplomatic personnel, and grant them varying degrees of
immunity. Under Articles 1, 31, and 37 of the Convention and 22
U.S.C. §§254a and 254d, diplomatic agents and their families enjoy
complete criminal immunity and nearly complete civil immunity. Mem­
bers of the administrative and technical staff and their families enjoy
complete criminal immunity and civil immunity for acts in the course of
their duties. Service staff of the mission enjoy immunity for acts per­
formed in the course of their duties. The Act implements these immuni­
ties by providing that actions brought against individuals who are
entitled to immunity in respect to them under the Convention or the
Act shall be dismissed (§ 254d).
   The Convention has a number of substantive provisions that are
relevant here. First, Article 22 provides unconditionally that the prem­
ises of the mission shall be inviolable, and places a special duty on the
receiving state to protect the premises against intrusion and to refrain
from searching it. Iran is clearly in massive breach of this A rticle.1
   Article 26 requires the receiving state to guarantee members of the
mission 2 freedom of movement in the country, subject to regulations
establishing national security zones. This Article was adopted against a
background of longstanding travel restrictions imposed by nations on a
reciprocal basis. (For example, after World War II the Soviet Union
limited travel by members of diplomatic missions in Moscow to 50
kilometers from the capital, absent special permission. The United
States and others retaliated by imposing reciprocal restrictions on the
Soviet Union and other offending nations.) An amendment to the A rti­
cle that would have stated that prohibited zones must not be so exten­
sive as to render freedom of movement illusory failed of passage. This
does not constitute an affirmative endorsement of highly restrictive
travel zones, however, since a statement to the same effect as the failed
amendment was already in the commentary to the Article. At any rate,
travel restrictions have continued on a more or less restrictive basis
since adoption of the Convention. See generally E. Denza, Diplomatic

   'T h e U nited Slates could confine m em bers o f the Iranian Mission to the premises w ithout violating
this A rticle, although such an action could violate A rticle 29’s prohibition o f arrest.
   2U nder 22 U.S.C. §254a, the term “ m em bers o f a mission" includes diplom atic agents, adm inistra­
tive and technical staff, and service staff, as defined in A rticle 1 o f the C onvention.


                                                   175
 Law, Commentary on the Vienna Convention on Diplomatic Relations,
  115-18 (1976).
    Our own legislative history of the Convention suggests that “protec­
 tive custody” of diplomatic personnel could be justified under Articles
 26 and 29. The State Department’s Legal Adviser testified before the
 Senate Foreign Relations Committee that these provisions could be
 used in situations involving armed conflict to justify placing diplomats
 in protective custody. He pointed out that while Article 29 prohibits
 arrest, it also provides that the receiving state shall take appropriate
 steps to prevent attacks on a diplomat’s person. 7 M. Whiteman, Digest
 of Int’l Law 442 (1970).
    This argument, however, is subject to two rejoinders. First, reconcil­
 ing Article 26, allowing travel restrictions, with Article 29, forbidding
arrest, requires a legal and practical distinction at some point between
travel restrictions and arrest. The practice of travel restrictions against
 which the Convention was drafted had never reached the level of
house arrest. Second, in the Convention the United States opposed a
provision now found in Article 39.2, stating that immunities such as
those against arrest continue even in case of war. We argued that it was
necessary to intern enemy diplomats at the outbreak of war, citing the
World War II experience. We proposed an amendment that failed,
which would have allowed the receiving state in time of national
emergency, civil strife, or armed conflict to institute appropriate meas­
ures of control of mission personnel and their property, including pro­
tective custody to insure their safety. See 7 M. Whiteman, supra, at 441.
The history of the failed American amendment is ambiguous enough
that it does not necessarily preclude limited imposition of protective
custody relying directly on the duty in Article 29 to “take all appropri­
ate steps to prevent any attack on” a diplomat’s person, but a protective
custody theory would be very hard to reconcile with an accompanying
ban on departure from the country. Indeed, Article 44 provides that
even in case of armed conflict, the receiving state must allow mission
personnel an opportunity to leave the country at the earliest possible
moment. In short, house arrest of mission personnel accompanied by a
ban on their return to Iran cannot fairly be argued to be within the
substantive terms of the Convention.
   Article 47 of the Convention provides that a state may discriminate
against another state by applying any of the provisions of the Conven­
tion restrictively “because of a restrictive application of that provision
to its Mission in the sending state.” The background to this provision
indicates that it authorizes reciprocally unfavorable treatment only to
an extent that is not clearly contrary to the terms of the Convention.
Denza, supra, at 283-84. This means that relatively restrictive travel
zones imposed by another country would allow us to impose restrictive

                                   176
 travel zones on a reciprocal basis, but would not justify our breach of
 the Convention, for example by invading their mission.
    The Convention’s preamble affirms “that the rules of customary
 international law should continue to govern questions not expressly
 regulated” by its provisions. Customary international law allows repris­
als, which are breaches of a treaty’s terms in response to a breach by
another party. To be legal, reprisals must respond in a proportionate
manner to a preceding illegal act by the party against whom they are
taken. See G. Schwarzenberger, A Manual of International Law 184
(5th ed. 1967).3 Identical reprisals are the easiest to justify as propor­
tionate, because subjective comparisons are not involved. Thus, in the
current crisis, the taking of Iranian diplomats as “hostages” (or a lesser
restriction on their freedom of movement that approaches imprison­
ment) would clearly be a proportionate response; reducing the immu­
nity of Iranian diplomats from criminal prosecution would be more
difficult to justify.
    At this point a special difficulty arises. International law scholars
have identified an exception to the law of reprisals: “diplomatic envoys
may not be made the object of reprisals, although this has occasionally
been done in practice.” H. Lauterpacht, 2 Oppenheim’s International
Law 140 (7th ed. 1952), citing Grotius. Customary international law
often has no firmer basis than the opinions of the scholars, bolstered by
their own reputations and the precedent they can summon. This excep­
tion to the reprisals doctrine can claim the support of some highly
reputable scholars.
    It is unclear whether this exception is meant to refer only to the
illegality of taking reprisals against diplomats in response to unrelated
breaches by the sending state (e.g., a blockade), or whether it is meant
to extend to a ban on reprisals against diplomats even when the sending
state commits a breach of diplomatic immunity. The former interpreta­
tion has the evident merit of preventing routine harassment of diplo­
mats, and would leave a role for reprisals in such extreme circum­
stances as the present Iranian actions.
   Nevertheless, the exception is stated in terms suggesting that reprisals
against diplomats are never legal. As a result, if the United States were
to take action amounting to a breach of the Vienna Convention, such as
arresting Iranian diplomats or barring their departure from the country,
a reputable argument could be made that our action was illegal, despite
major previous breaches by the other side. Here it can be argued that
Article 47 of the Vienna Convention means to forbid full-scale reprisals
against diplomats, no matter the provocation. It would be pointed out

  3 This principle is also codified in the V ienna C onvention on the Law o f Treaties, A rticle 60, Senate
Exec. L., 92d Cong., 1st Sess. (1971), w hich allow s suspending the operation o f a treaty in w hole o r in
part upon the material breach o f an o th er party, but w hich is not yet in force and has not been ratified
by the United Stales.


                                                  177
that economic reprisals (blocking assets, boycotts, or even blockade)
stand as substitute remedies.
   There may be added support for the view that reprisals against
diplomats are never legal in the World Court’s recent order granting an
“indication of Provisional Measures” in United States o f America v.
Iran. For the Court ordered release of the hostages, including diplo­
matic personnel, despite Iran’s argument that the hostage-taking should
be viewed as “secondary” to “25 years of continual interference by the
United States in the internal affairs of Iran, . . . and numerous crimes
perpetrated against the Iranian people, contrary to . . . all interna­
tional and humanitarian norms.” The seriousness of these allegations did
not convince the Court that imprisoning diplomats was a fit reprisal.
Still, the Iranian action was not presented as a reprisal for breaches of
diplomatic immunity, and the Court did not speak to that issue. It
ordered release “in accordance with the treaties in force between the
two States, and with general international law.”
   In any event, it is our judgment that international law casts consider­
able doubt on the legality of any reprisal against diplomats.

B. Dom estic L aw Im plem enting International L aw

   It seems clear that the Vienna Convention and surrounding principles
of customary international law have been incorporated as part of our
domestic law. First, Article VI of the Constitution makes treaties part
of the supreme law of the land, along with the Constitution and stat­
utes. The Vienna Convention, ratified by the United States, includes an
affirmation in its preamble that rules of customary law should govern
questions not expressly regulated by the terms of the Convention.
   Moreover, the Supreme Court has recognized customary interna­
tional law as part of our domestic law. See L. Henkin, Foreign Affairs
and the Constitution 221 (1972). In The Paquete Habana, 175 U.S. 677,
700 (1900), the Supreme Court held that under international law, fishing
vessels belonging to enemy nationals were exempt from capture and
condemnation by American vessels:
      International law is part of our law, and it must be
      ascertained and administered by the courts of justice of
      appropriate jurisdiction, as often as questions of right de­
      pending upon it are duly presented for their determina­
      tion.
   A principal purpose of the Diplomatic Relations Act of 1978, 22
U.S.C. § 254a et seq., was to “codify the privileges and immunities
provisions of the Vienna Convention as the sole United States law on
the subject,” S. Rep. No. 958, supra, at 1, and to repeal inconsistent
statutes. The Act also provides, in § 254c:

                                    178
      The President may, on the basis of reciprocity and under
      such terms and conditions as he may determine, specify
      privileges and immunities for members of the mission,
      their families, and the diplomatic couriers of any sending
      state which result in more favorable treatment or less
      favorable treatment than is provided under the Vienna
      Convention.
The Report of the Senate Foreign Relations Committee, No. 958, supra,
at 5, explains that this provision “reflects article 47 of the Convention
which allows such treatment.” The Report goes on:
      The conditions under which U.S. diplomatic personnel
      carry out their official functions and lead their lives in
      certain hardship areas dictate their enjoyment of increased
      protection from harassment as a result of arbitrary appli­
      cation of local law. This provision permits less favorable
      treatment than the Vienna Convention and covers those
      cases where certain nations restrict the privileges and
      immunities of U.S. diplomatic personnel abroad. Any use
      of the discretion described in this section must be on a
      reciprocal basis with the nations involved.
   It is unclear whether this section means to go further than to codify
Article 47 of the Convention, which allows only restrictive applications
of the Convention’s terms. It can be read to provide domestic authority
to exercise the international law of reprisals, which would, however,
presumably include the exception for reprisals against diplomats. The
legislative history is barren of guidance except for the discussion quoted
above, which refers to Article 47 and which seems to contemplate
reciprocally restrictive travel provisions.
   There is explicit authority for travel regulations in the Foreign Rela­
tions Authorization Act of 1979; Pub. L. No. 95-426, 22 U.S.C. §2691
note:
      For the purpose of implementing general principles of the
      Final Act of the Conference on Security and Cooperation
      in Europe (signed at Helsinki on August 1, 1975) empha­
      sizing the lowering of international barriers to the free
      movement of people and ideas and in accordance with
      provisions of the Vienna Convention on Diplomatic Rela­
      tions establishing the legal principles of nondiscrimination
      and reciprocity, it shall be the general policy of the
      United States to impose restrictions on travel within the
      United States by citizens of another country only when
      the government of that country imposes restrictions on
      travel by United States citizens within that country.
                                   179
The legislative history of this provision refers to it as “self-
explanatory,” and is otherwise unilluminating. H.R. Rep. No. 1160, 95th
Cong., 2d Sess. (1978).
   Thus there is ample international and domestic authority for travel
restrictions on Iranian diplomatic personnel. But the line must be drawn
at that point—anything amounting in substance to holding them hostage
would entail a possible breach of international law. Instead, the tradi­
tional remedy against diplomats has been to declare them persona non
grata and to expel them, even in cases of espionage.4 There is even a
possibility that internment of Iranian diplomatic personnel would run
afoul of 18 U.S.C. § 112, which makes it a federal crime to assault or
imprison a foreign diplomat. This provision, passed in response to
terrorism at the Munich Olympics and elsewhere, focuses on ordinary
criminal activity, but it is not in terms inapplicable to governmental
abuse of diplomatic privileges and immunities.
C. Presidential Power Over D iplom atic Personnel
   The President’s authority over foreign diplomatic personnel derives
from his constitutional power in Article II to “receive Ambassadors
and other Public Ministers.” From this derives the President’s power to
grant or withdraw recognition to foreign governments and their minis­
ters, a power regarded as textually committed to the Executive alone.
See Jones v. United States, 137 U.S. 202, 212 (1890); Baker v. Carr, 369
U.S. 186, 212-13 (1962); see generally 2 B. Schwartz, The Powers of the
President 104-09 (1963). The President’s well-established power to rec­
ognize foreign governments without the participation of the other
branches is a greater power than that involved in receiving a particular
Ambassador of a recognized government, although it may flow logi­
cally enough from that power. As a consequence, the President’s power
to accept or reject a particular envoy has been beyond serious question
since President Washington demanded the recall of Citizen Genet, the
French Minister. As early as 1855, the Attorney General gave an
opinion that the right of reception extends to “all possible diplomatic
agents which any foreign power may accredit to the United States,” 7
Op. A tt’y Gen. 186, 209 (1855).
   The legal status of foreign diplomatic personnel in the United States
has its roots in these constitutional considerations and was well-defined
long before the Vienna Convention codified it. In effect, persons with
full diplomatic status bear the same relation to the United States as the
government they serve; they are not subject to domestic law, and our
rights and remedies with respect to them are diplomatic only. See

   4T his is not the case for individuals w ith only a qualified im m unity from crim inal jurisdiction. T he
U nited States does not recognize violation o f the espionage laws as part o f a foreign em ployee's
official function, and the lim ited im m unity is no bar to prosecution for such violations. See United
States v. Egorov, 222 F. Supp. 106, 107-08 (E .D .N .Y . 1963); Untied States v. Melekh, 190 F. Supp. 67,
87-89 (S.D . N.Y. 1960).


                                                    180
Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 138-39 (1812)
 (Marshall, Ch. J.), for a classic statement of this. The first American
 statutes granting immunity from our domestic law to diplomatic person­
 nel date from 1790, and since the Citizen Genet affair, Presidents have
declared foreign diplomatic personnel persona non grata, expelling them
 without explanation or process. Neither expulsion without procedural
protections nor travel restrictions of the sort familiar both before and
after ratification of the Vienna Convention would be tolerable for
American citizens or nondiplomatic aliens. Professor Henkin concludes
that “foreign governments, however, and probably foreign diplomats in
their official capacity, have no constitutional rights, and there are no
constitutional obstacles, say, to tapping wires of foreign embassies.”
Henkin, supra, at 254. (Professor Henkin’s example regarding wiretap­
ping presages a position taken by the Office of Legal Counsel in
response to a request of the Permanent Select Committee on Intelli­
gence in April, 1978.)
   At the same time, aliens within our international jurisdiction are
subject to our laws and are entitled to claim constitutional protections
when the government has not granted them immunity. See M athews v.
Diaz, 426 U.S. 67, 77 (1976); Wong Wing v. United States, 163 U.S. 228,
237-38 (1896).
   A consistent pattern emerges from these authorities. Diplomatic per­
sonnel, standing as surrogates for the nation they represent, are without
the constraints of our domestic law and its protections as well. For
example, no one would suggest that a diplomat has a First Amendment
right to disparage the President without suffering expulsion as a conse­
quence. But to the extent that immunity does not hold, with the expo­
sure to our domestic law comes equally an opportunity to take advan­
tage of its protections. Thus, no one would suggest that an alien may be
tried for espionage without the observance of due process guarantees.
See A bel v. United States, 362 U.S. 217 (1960).
   In addition to these constitutional sources, the President can draw
authority over diplomats from the provisions of the Diplomatic Rela­
tions Act and the Foreign Relations Authorization Act that are summa­
rized above. Finally, there is a little-known 1868 statute, now 22 U.S.C.
§ 1732:
      Whenever it is made known to the President that any
      citizen of the United States has been unjustly deprived of
      his liberty by or under the authority of any foreign gov­
      ernment, it shall be the duty of the President forthwith to
      demand of that government the reasons of such imprison­
      ment; and if it appears to be wrongful and in violation of
      the rights of American citizenship . . . , the President
      shall use such means, not amounting to acts of war, as he
      may think necessary and proper to obtain or effectuate

                                  181
       the release; and all the facts and proceedings relative
       thereto shall as soon as practicable be communicated by
       the President to Congress.
  This provision appears never to have been invoked; at least it has
never been relied on in litigation to support presidential action. It was
passed in response to a dispute with Great Britain after the Civil War,
in which that nation was trying its former subjects, who had become
naturalized Americans, for treason. A rejected amendment to the bill
would have authorized the President to suspend all commerce with the
offending nation, and to round up foreign citizens found in this country
as hostages; even this harsh provision, however, excepted diplomatic
personnel. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445 (1868). There­
fore, if this provision is to be relied on, it should be invoked for actions
not involving diplomats.
  In conclusion, the President has plenary powers to control the pres­
ence and movement in this country of foreign diplomatic personnel,
short of violations of international law.

                          II. Departure Controls

  The Immigration and Nationality Act, 8 U.S.C. § 1185(a), provides
       Unless otherwise ordered by the President, it shall be
       unlawful—
         (1) for any alien to depart from . . . the United States
       except under such reasonable rules, regulations, and
       orders, and subject to such limitations and exceptions as
       the President may prescribe. . . .
It is clear from the structure of the statute that the term “alien” as used
in §1185 includes diplomatic personnel. The definitions section of the
Act, § 1101(a), defines alien as any person not a citizen of the United
States (3), and includes diplomatic personnel among nonimmigrant
aliens (15). Section 1102 of the Act makes the provisions on exclusion
or deportation inapplicable to diplomatic personnel, except as otherwise
provided. There is no parallel section exempting diplomatic personnel
from departure controls.
   Regulations implementing § 1185 have been issued by the Department
of State, but are implemented by the departure control officers of the
Immigration and Naturalization Service (INS). 22 C.F.R. §46. The
regulations provide in §46.2 that no alien (defined in the statute’s terms)
shall depart, or attempt to depart, from the United States if his depar­
ture would be prejudicial to the interests of the United States under the
provisions of §46.3. Departure control officers, having reason to be­
lieve that §46.3 applies, are instructed to serve the alien with a written
temporary order directing him not to depart. In turn, §46.3 defines
categories of aliens whose departure shall be deemed prejudicial to the
                                    182
 interests of the United States, and includes: fugitives from justice; aliens
 needed as witnesses or parties to criminal cases under investigation or
 pending in our courts; aliens needed in connection with investigations
or proceedings being conducted by any official executive, legislative, or
judicial agency in the United States; and aliens who may disclose
defense information, engage in activities impeding our national defense,
wage war against the United States, or help to deprive the United
States of sources of supplies or materials vital to our national defense.
There is also a final catchall category (k) for any alien whose case does
not fall within any of the specified categories, “but which involves
circumstances of a similar character rendering the alien’s departure
prejudicial to the interests of the United States.” Any of a number of
these provisions would seem adaptable to the present situation.
   Section 46.7 of the regulations provides that in the absence of appro­
priate instructions from the State Department’s Bureau of Security and
Consular Affairs, departure control officers shall not exercise their
authority to bar exit in the case of aliens seeking to depart in the status
of diplomatic personnel (within a definition in § 1101(a)(15) that closely
resembles those in the Diplomatic Relations Act). It goes on to provide,
however, that in “cases of extreme urgency, where the national security
so requires,” a departure control officer may preliminarily exercise
authority to bar exit pending the outcome of consultation with the
Administrator, “which shall be undertaken immediately. In all cases
arising under this section, the decision of the Administrator shall be
controlling: Provided, That any decision to prevent the departure of an
alien shall be based upon a hearing and record as prescribed in this
part.” The regulations provide that an alien served with a notice of
temporary prevention of departure may within 15 days request a hear­
ing before a Special Inquiry Officer of the INS. If a hearing is re­
quested, the alien is entitled to appear, to be represented by counsel of
his choice, and to have a trial-type hearing. The Special Inquiry Officer
recommends disposition, and the record and any written appeals are
transmitted to the Regional Commissioner, whose decision is adminis­
tratively final.
          III. Restricting Criminal Immunity of Diplomatic Personnel

   Under the Vienna Convention, diplomatic agents and administrative
and technical staff are entitled to complete immunity from the criminal
jurisdiction of the host state. However, the exercise of criminal jurisdic­
tion over foreign diplomatic personnel might, as a matter of interna­
tional law, be justified as a reprisal for Iranian breaches of the Conven­
tion. As noted above, there is a substantial argument that all reprisals
against diplomatic personnel are illegal.5 Moreover, reprisals become

   5Support for such an argum ent in this application m ight be found in the W orld C o u rt's o rd e r to
Iran to afford o u r diplom ats “ im m unity from any form o f crim inal jurisdiction."


                                                  183
more difficult to justify as they become less clearly reciprocal in terms
of nature or severity to the breach that has occurred. See
Schwarzenberger, supra, at 184. Thus, house arrest of Iranian diplo­
mats, because of its similarity to the imprisonment of our personnel, is
easier to justify than criminal prosecution of a sort not yet imposed
upon our hostages. There is also a serious danger that a reprisal of this
sort might be thought to justify the exercise of Iranian criminal jurisdic­
tion, in particular regarding espionage, over our personnel. Therefore,
if any criminal jurisdiction is asserted over Iranian diplomatic person­
nel, it is particularly important to specify the aspects of the criminal
law to which they are being subjected. This could be done by notifica­
tion that violations of Executive Order No. 12,170 and the criminal
provisions of the IEEPA , 50 U.S.C. § 1705, will result in criminal
prosecution.
   Moreover, as a matter of American constitutional law, it is clear from
the preceding analysis that Iranian personnel subjected to criminal
prosecution would be entitled to due process protections. Before
encountering criminal liability, they would need to be placed on notice
that we regard their conduct as subject to our domestic criminal law, in
particular the provisions of the IEEPA.
   Although there is some basis in law for subjecting Iranian diplomatic
personnel to our criminal statute enforcing the freeze order, assertion of
our criminal jurisdiction over these persons is fraught with danger.
Moreover, since the existence of the freeze should prevent those deal­
ing with the affected governmental instrumentalities from distributing
property to them, it is not apparent that serious violations are likely to
occur. We urge strongly against any formal assertion that Iranian diplo­
matic personnel are subject to this aspect of our criminal law.

                                          L   arry   A. H   am m ond

                                  D eputy Assistant A ttorney General
                                       Office o f L egal Counsel




                                    184
