Presidential Power to Expel Diplomatic Personnel from the United States

Presidential Power to Expel Diplomatic Personnel

from the United States

T h e P resid en t has in h eren t co n stitu tio n al p o w e r to d e c la re fo reig n d ip lo m atic perso n n el

persona non grata an d to expel them fo rcib ly from th e U n ited S tates; th e ex ercise o f this

p o w e r is c o n sisten t w ith in tern atio n a l law , in clu d in g specifically th e V ien n a C o n v e n ­

tion o n D ip lo m atic R elations.

In h ere n t in th e P re sid e n t’s p o w e r to reco g n ize foreign co u n trie s an d th eir m inisters is

im plied p o w e r o v e r th e physical prem ises o f d ip lo m atic p ro p erties, in clu d in g p o w e r to

tak e actio n s n ecessary to p ro te c t em bassies from d am age, an d to d e n y possession to o r

to eje c t th o se n o t reco g n ized as d ip lo m atic p erso n n el o f th e sen d in g state.

A fo reig n d ip lo m at w h o has b een d e c la re d persona non grata and o rd e re d to leav e the

c o u n try d o es n o t lose his d ip lo m atic status, and th u s sh o u ld n ot be able to assert any

legal en titlem en t to rem ain in th e U nited S tates u n d e r th e Im m ig ratio n an d N atio n ality

A ct; n o r sh o u ld su ch an individual be able to fru s tra te o r d elay e x e c u tio n o f an

expulsion o rd e r b y re n o u n c in g his d ip lo m atic status. T h e S e c re ta ry o f S ta te m ay

rev o k e th e visas o f d ip lo m ats d e c la re d persona non grata to forestall th e ir in v o catio n o f

th e IN A as a basis fo r ch allen g in g th e P re sid e n t’s expulsion o rd e r.

F ed eral law en fo rc e m e n t officials, p a rtic u la rly th e S ecret S erv ice, h a v e a u th o rity to

p ro te c t Iran ian d ip lo m atic p ro p e rty against th ird p arties, in clu d in g any p erso n s not

c u rre n tly reco g n ized by the U n ited S tates as a c c re d ite d d ip lo m a tic p erso n n el. T h e

P resid en t is a u th o riz e d to call on th e full ran g e o f his re so u rc e s in th e E x e c u tiv e

B ran ch , in clu d in g th e m ilitary, an d also on th e reso u rces o f sta te o r local law e n fo rc e ­

m en t ag en cies, to c a rry o u t an expulsion o r d e r in this situation.

T h e D u e P ro c ess C lau se o f th e F ifth A m e n d m e n t at m ost req u ires o n ly a d e te rm in a tio n

th at a d ip lo m at ab o u t to be expelled from th e U n ited S tates p u rsu a n t to th e P re sid e n t’s

o rd e r is in fact th e p erso n o rd e re d to be expelled; an expulsion o r d e r is arg u ab ly

su b ject to ju d icial rev iew , on a w rit o f h abeas co rp u s, but o n ly o n th e lim ited g ro u n d s

o f m istaken id entity.

April 4, 1980

MEMORANDUM OPINION FOR TH E DEPUTY ATTORNEY

G EN ER A L AN D T H E ASSOCIATE ATTORNEY G E N E R A L

This responds to your joint request for our views regarding the

authority of the President to expel foreign diplomatic personnel from

the United States, to maintain control over the premises of Iranian

diplomatic property in connection with that expulsion, and the legal

constraints placed on that authority by international and domestic law

and by our Constitution. For the reasons stated hereafter, we believe

that the President has the authority to declare a nonresident alien who

is a member of the staff of a foreign diplomatic or consular post in the

United States to be persona non grata, forcibly to expel such diplomatic

207

personnel from the United States within a reasonable period of time (as

set by the President) after being declared persona non grata, and to take

all steps reasonably designed to secure all Iranian diplomatic properties

and limit their use to diplomatic activities conducted by a third nation

acceptable to the President. We conclude that the exercise of this

power over diplomatic personnel is not constrained by the Immigration

and Nationality Act of 1952, and that the Constitution requires only

that a procedure reasonably calculated to insure that personnel actually

expelled are those previously declared persona non grata be utilized.

We also conclude that prior to their expulsion, diplomatic personnel

are not entitled as a' matter of law to assert any federal statutory right

to remain in this country as a means of avoiding their expulsion.1

Finally, we believe that judicial review of any actions taken by the

President related to expulsion would be limited to possible inquiry by

habeas corpus into the question whether a particular person to be

expelled was in fact previously declared persona non g rata.2

I. Presidential Authority Over Diplomatic Personnel and Property

The President’s authority over foreign diplomatic personnel derives

from his power, under Article II, § 3 of the Constitution, to “receive

Ambassadors and other Public Ministers.” This provision is the basis of

the President’s power to grant or withdraw recognition to foreign

governments and their ministers, a power regarded as textually commit­

ted to the Executive alone. See Jones v. United States, 137 U.S. 202, 212

(1890); B aker v. Carr, 369 U.S. 186, 212-13 (1962).3 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. In 1855, the Attorney General took the

position that this right of reception, and therefore rejection, extends to

“all possible diplomatic agents which any foreign power may accredit

1A separate international legal question w ould be raised in the event o f a claim o f political asylum

by one o f the individuals w hose d ep artu re is o rd ered . T h e U nited States is a party to the 1967

Protocol R elating to the Status o f R efugees, Jan. 31, 1967, 19 U .S.T. 6223, T.I.A .S. 6577. This

Protocol obliges us not to expel o r return a refugee to a territo ry w here his life o r freedom w ould be

threatened on account o f his race, religion, nationality, m em bership o f a p articular social g roup o r

political opinion. T h e P ro to co l defines "refugee" as a person w ho, ow ing to w ell-founded fear o f such

persecution, is outside the co u n try o f his nationality and is unable or, ow ing to such fear, is unw illing

to avail him self o f the protection o f that country.

T h e re is no exception provided in th e P ro to co l w ith respect to diplom atic and consular personnel

and, in practice, such personnel have been acco rd ed the benefits o f the C onvention.

It w ould seem unlikely that any Iranian diplom atic o r consular personnel w h o rem ain officials o f

the present g o vernm ent o f Iran, more than one year after its establishm ent, w ould have a reasonable

fear o f persecution by that governm ent. N evertheless, such claim s are possible, and the U nited States

should have a pro ced u re for assuring that expulsion will not v iolate our treaty obligations under the

R efugee Protocol. A possible approach to this problem is described in Part III o f this m em orandum .

2 W e note that th e analytical basis fo r th e conclusions set fo rth above and the reasoning set forth

below is d raw n to a great extent from a series o f m em oranda from this O ffice to the A ttorney G eneral

dating from N ovem ber o f 1979. W e w ould also note that w e use the term s diplom atic personnel and

diplom atic pro p erty herein to include b o th diplom atic and consular personnel and property; for our

purposes, legal distinctions am ong these classes are eith er irrelevant o r specifically noted.

3See generally 2 B. S ch w artz, T h e P ow ers o f th e President 104-09 (1963).

208

to the United States.” 7 Op. A tt’y Gen. 186, 209 (1855); 5 Moore,

International Law Digest 15—19 (1906). It is recognized that the power

to receive Ambassadors is a discretionary one which necessarily in­

cludes the right to refuse to receive them, to require their departure,

and to determine their eligibility under our laws. 4 Moore, International

Law Digest 473-548 (1906).

The President’s power to receive and expel foreign diplomatic per­

sonnel is a power recognized to inhere in all sovereign nations by the

1961 Vienna Convention on Diplomatic Relations, Apr. 18, 1961,

23 U.S.T. 3227, T.I.A.S. No. 7502. The President’s power over diplo­

matic property is a concomitant of his power over diplomatic personnel

to the extent that its exercise relates to his recognition power and his

power over the conduct of our foreign relations and is likewise recog­

nized by the Vienna Convention. Under Article 22 of the Vienna

Convention, this country has a duty to take “all appropriate steps to

protect the premises of the mission against any intrusion or damage and

to prevent any disturbance of the peace of the mission.” Article 45 of

the Convention requires the receiving state to “respect and protect the

premises of the mission, together with its property and archives,” and

authorizes the sending state to entrust custody of the premises to a third

state acceptable to the receiving state where the receiving state orders

the recall of diplomatic personnel.

Because diplomats and consuls who have been ordered to leave the

United States have always complied, the President’s authority to order

their departure and to enforce such orders has never been subject to

judicial challenge. However, individuals have from time to time

claimed diplomatic status and have asserted a resulting entitlement to

immunity from judicial process. In these cases the courts have consist­

ently acknowledged that determinations as to whether an individual

was recognized by the United States as a representative of a foreign

government were properly within the province of the Executive. A c­

cordingly, the courts have held that certifications by the Department of

State are conclusive as to the status, privileges, and immunities of

foreign diplomatic personnel. In re Baiz, 135 U.S. 403 (1890); Carrera v.

Carrera, 174 F.2d 496, 497 (D.C. Cir. 1949). As discussed below, we

believe an executive determination that an individual previously recog­

nized as a diplomatic or consular representative had been declared

persona non grata and was required to depart from the United States

would be entitled to the same judicial deference under the rationale of

these decisions. See A dam s v. Vance, 570 F.2d 950 (D.C. Cir. 1978).

II. Legal Constraints on the Exercise of the President’s Authority

We have identified three types of authority which inform and poten­

tially constrain the President’s exercise of his authority to declare per­

sona non grata and to expel foreign diplomatic personnel other than

209

personnel accredited to the United Nations and to regulate the use of

diplomatic property.4 The first and most directly relevant authority is

international law, specifically the Vienna Convention on Diplomatic

Relations. The second is federal statutory law, including the Immigra­

tion and Nationality Act of 1952, 8 U.S.C. §§ 1101 et seq. The third is

the Due Process Clause of the Fifth Amendment of the Constitution.

We will discuss each of these in turn.

A. International Law

1. Diplomatic personnel

Under international law it has long been recognized that every sover­

eign nation has the right to determine whether it will receive a diplo­

matic envoy from another nation and whether it will continue to

receive and conduct official business with an envoy who has been

accepted.5 This right is reflected in Article 9 of the 1961 Vienna

Convention on Diplomatic Relations, a codification in most material

respects of prevailing customary international law on this subject. Arti­

cle 9 provides that the receiving state may, at any time and without

having to explain its decision, notify the sending state that any diplo­

matic officer is persona non grata or that a nondiplomatic staff member

is no longer “acceptable.” Following this determination, the sending

state must either recall the person concerned or, “as appropriate,”

terminate that person’s functions at the mission.6

Once declared persona non grata, foreign diplomatic personnel do not

automatically lose their diplomatic status or the diplomatic immunities

to which they are entitled under international law. Under U2 of Article

9 of the Convention, if the sending state “refuses or fails within a

reasonable period to carry out its obligations” to recall or terminate the

services of a diplomat declared persona non grata, “the receiving State

m ay refuse to recognize the person concerned as a member of the

mission.” (Emphasis added.) You have asked us whether this remedy

spelled out in Article 9, permitting the United States to strip diplomatic

personnel of their diplomatic status if they have not left this country

*A s indicated below , the P resident’s p o w er to com pel the d eparture o f diplom ats accredited to the

United N ations has been, subsequent to the ratification by the Senate o f the C onvention on the

Privileges and Im m unities o f the U nited N ations in 1970, essentially the same as his pow er to expel

diplom atic personnel accred ited to this co u n try . This O ffice cu rren tly has under consideration at the

request o f the Legal A dviser o f the D epartm ent o f State the question w hether diplom ats accredited to

the U nited N ations enjoy the same im m unity from application o f paragraphs (27) and (29) o f 8 U.S.C.

§ 1182(a) to their entering this co u n try as diplom atic personnel accredited to the U nited States possess

by virtue o f 8 U .S .C §1102.

5E. D enza, D iplom atic L aw 40 (1976) [hereafter Denza].

*T he records o f the International L aw Com m ission reflect that the term ination o f functions option

is intended to apply prim arily to persons w h o are nationals o f o r perm anently resident in the receiving

state.

210

after a reasonable period of time7 subsequent to their being declared

persona non grata is, in effect, the exclusive remedy of the President to

enforce Article 9. Stated another way, the question is whether, consist­

ent with the Vienna Convention, the President through his agents may

forcibly expel foreign diplomatic personnel from the United States

subsequent to their being declared persona non grata. We believe that,

consistent with the Vienna Convention, the President may do so.

It has long been customary for the sending states to withdraw diplo­

mats voluntarily when those diplomats have been declared persona non

grata. Thus, as indicated above, in American practice it has apparently

never been necessary forcibly to expel such a diplomat. Although the

Vienna Convention is silent on the question of the right of the receiving

state forcibly to expel a diplomat after declaring him persona non grata,

there is support in both customary practice and in the negotiating

record of the Convention for the taking of this action by the receiving

state following that determination. One authority cites the fact that the

early cases reflecting this practice “are all described as cases of ‘expul­

sion.’ ” 8 This authority comments further that the practice of request­

ing recall replaced expulsions “in the more placid political climate of

the nineteenth century.” 9

We believe that this history suggests why the Vienna Convention

itself does not specifically spell out the right of a receiving state

forcibly to expel a diplomat. We would add that H2 o f Article 9, read

literally, does not purport either to require the receiving state to strip a

foreign diplomat of his diplomatic status in this situation or suggest that

remedy is the receiving state’s exclusive remedy to deal with a situation

in which the sending state has not fulfilled its clear obligation under

Article 9 to withdraw its diplomat or to itself terminate the person’s

diplomatic status. Nothing in logic supports the proposition that we

should assume the right to expel was abandoned as a matter of custom­

ary international law even though it was not specifically spelled out in

the Vienna Convention.10 In this connection, we note that the preamble

to the Convention affirms “that the rules of customary international law

should continue to govern questions not expressly regulated by the

provisions of the present Convention.” The Vienna Convention, by

remaining silent on the question of expulsion, in no way precludes a

receiving state from taking this action.

The position of the United States delegation to the United Nations

Conference which drafted the Convention reflects the understanding of

the U.S. government that a receiving state may require the departure of

7T he drafting history o f A rticle 9 o f the C onvention indicates that the “reasonableness” o f the

period follow ing a persona non grata action is largely dependent on the attendant circum stances. These

circum stances may be such as to w arrant the receiving state’s dem and for im m ediate action.

8 D enza, at 40.

9Id., at 41.

10Id., at 135-36.

211

a member of the diplomatic mission. In commenting on the question of

allowing a “reasonable period” in which the sending state must act

following a persona non grata determination, the delegation stated: “[I]n

aggravating circumstances, or where national security is involved,

the receiving State may demand his [the diplomat’s] immediate

departure. . . . ” (Emphasis added.)

Further evidence of the United States’ interpretation of customary

international law and the practice of the government with respect to

the expulsion of diplomats is found in the testimony of Department of

State Legal Adviser Leonard Meeker before the Senate Foreign Rela­

tions Committee which considered proposed ratification of the Vienna

Convention in 1965. Referring to the provision of the Convention

(Article 41) which requires persons enjoying diplomatic privileges and

immunities to respect the law of the receiving state, the Legal Adviser

stated: “[I]f the situation becomes serious enough, we would have to in

certain cases perhaps require the departure of members of the diplo­

matic missions as we have a right to require and will have that right under

the Convention, ju st as we do now. ” 11 (Emphasis added.)

Since 1965, the government has publicly voiced its views concerning

the right to expel diplomats. For example, in its report issued regarding

the ratification of the Convention on the Privileges and Immunities of

the United Nations, the Senate Committee on Foreign Relations paid

special attention to several reservations to the proposed Convention,

one of which stated that:

Persons who are entitled to diplomatic privileges and

immunities under the Convention shall not be required to

leave the United States otherwise than in accordance with

the customary procedure applicable to members of diplo­

matic missions accredited or notified to the United States.

Ex. Rep. No. 17, 91st Cong., 2nd Sess. 5 (1970).

On its face, this reservation clearly assumes the existence of a

nonstatutory, presidentially controlled and supervised procedure for the

expulsion of foreign diplomatic personnel. More importantly for present

purposes, the Senate Committee went on to state in its report:

As a final recourse, under the proposed reservation and

present law, the United States can compel the departure

from its territory of anyone declared persona non grata

12

" Exec. H. 88th C ong., 1st Sess. 9 (1965).

12 W e note that in the report to the President from the Secretary o f State o f N ovem ber 6, 1969,

recom m ending transm ittal o f the C onvention to the Senate for advice and consent to ratification, the

term s “com pel” and ’‘d e p artu re ,” ' ‘expulsion” and “ expelled” are used interchangeably. F urtherm ore,

that rep o rt contains no reference w h atso ev er to the Im m igration and N ationality A ct, w hich was

apparently assumed not to apply to this issue at all.

212

Thus, it is unquestioned that the United States has traditionally main­

tained, and continues to maintain, the legal position consistent with

prevailing rules of international law and practice and the Vienna Con­

vention on Diplomatic Relations, that the receiving state has the right

to require the departure, following persona non grata action, of alien

nonresident members of the staff of a diplomatic mission.13

An argument that a diplomat may not be forcibly expelled by a

receiving state could be made based on the principle articulated in

Article 29 of the Vienna Convention that the “person of a diplomatic

agent shall be inviolable” and that such a person “shall not be liable to

any form of arrest or detention.” We are not persuaded by that argu­

ment for several reasons. First, these provisions of Article 29 cannot

and have not been read to mean that a diplomat’s movement is not

subject to any control, see Article 26 of the Vienna Convention, or that

he cannot be prevented from taking action which violates the domestic

law of the receiving state. [1957] 2 Y.B. Int’l L. Comm’n. 138.14 For

example, the Department of State has taken the position that foreign

diplomats may be escorted off the New Jersey Turnpike when found to

be speeding, even though they were clearly not subject to arrest for

that offense.15 We assume there would be no doubt that a foreign

diplomat could be physically restrained from committing an assault on

the streets of Washington, D.C., even though once again not subject to

arrest for that assault, and that action could be taken without raising

any substantial question under the Vienna Convention. In our view, an

order of the President declaring foreign diplomats persona non grata

with an accompanying order to depart the United States constitutes a

legal determination under United States law that may be enforced in

similar fashion so long as the foreign diplomat affected is treated “with

due respect” as provided in Article 29.16

Under the analysis above, we believe the President has the constitu­

tional power forcibly to eject diplomatic personnel declared by him to

13 International law w ith respect to the treatm ent o f consular officers and consular staff parallels

that w ith respect to diplom ats; A rticle 23 o f the V ienna C onvention on C onsular Relations contains

language nearly identical to that o f paragraphs 1 and 2 o f A rticle 9 o f the V ienna C onvention on

D iplom atic Relations. U nder this A rticle the receiving state may declare a consular officer persona non

grata o r a staff m em ber unacceptable and may w ithdraw recognition o r cease to consider the person as

a m em ber o f the consulate if the sending state refuses to recall the person o r term inate his functions

“ w ithin a reasonable tim e.” T h e official records o f the U N C onference w hich adopted this article

clearly reflect the intention to prescribe rules relating to the determ ination that a m em ber o f a

consulate is persona non grata o r no longer acceptable w hich are virtually the sam e as those relating to

members o f a diplom atic mission. T he conferees specifically rejected proposals w hich w ould place

consular personnel in a m ore advantaged position vis-a-vis diplom atic personnel. Thus, w e conclude

that consular personnel may similarly be required to depart the receiving state follow ing persona non

grata action. I Official R ecords UN C onference on C onsular R elations 209-217.

u I d . at 136.

15Hearings on Exec. H. Before a Subcom mittee o f the Senate C om mittee on Foreign Relations 20 (1965)

(drunk diplom at could be “haul[edj o ff by the scru ff o f his neck” ).

16W e believe the phrase “due respect” must be read to authorize the use o f the minimum level o f

force necessary to deal w ith any resistance by diplom atic personnel to their expulsion. Likew ise, that

phrase in no w ay precludes personnel enforcing a presidential o rd e r from using reasonable force to

defend them selves from violent acts against their persons.

213

be persona non grata from the United States and that the exercise of that

power would be consistent with international law.

2. Diplomatic property

The President has sole power to recognize foreign countries and to

determine the acceptability of their ministers; inherent in this authority

is the implied power to control physical access to embassy premises in

the United States. This includes the power to take necessary action to

protect embassies from damage, and the power to deny possession to or

eject those not recognized as diplomatic personnel of the sending state.

As with the expulsion of diplomatic personnel, an argument can be

made that the President’s power over the physical premises of diplo­

matic properties is limited by the principle set forth in Article 22 of the

Convention that the premises of an embassy are “inviolable.” This

principle of inviolability is generally taken to mean that agents of the

United States may not enter without consent of the head of the mission.

At the same time, Article 22 imposes a duty on the receiving state to

take “all appropriate steps to protect the premises of the mission against

any intrusion or damage and to prevent any disturbance of the peace of

the mission.”

Article 45 of the Convention, however, modifies these commands

somewhat in cases where, as here, the diplomatic personnel are tempo­

rarily recalled. It requires the receiving state to “respect and protect

the premises of the mission, together with its property and archives,”

and authorizes the sending state to trust custody of the premises to a

third state acceptable to the receiving state.

It is plain from the background of the Convention that the duty in

Article 45 to “respect and protect the premises” does not mean full

inviolability. Denza, supra, at 281. Although it is not clear when invio­

lability ends, analogy to our discussion above of Article 29 regarding

termination of personal immunity suggests that inviolability should con­

tinue for a reasonable time after the premises cease to be used for

diplomatic purposes. In turn, this suggests that if the premises are used

for purposes incompatible with a diplomatic mission, such as an armed

occupation, inviolability should cease at that point. In view of this, the

Convention’s provisions in Articles 22 and 45 protecting the integrity of

the embassy premises suggest ample authority to control access to

diplomatic property in these circumstances.

B. Federal Statutory L aw

1. Diplomatic personnel

The President’s exclusive power over foreign diplomatic personnel as

a matter of domestic law is explicitly and implicitly recognized in the

214

statute most directly relevant to the issues at hand, the Immigration and

Nationality Act of 1952. Under § 102 of that Act, 8 U.S.C. § 1102,

diplomatic personnel are generally exempt from the provisions of the

Act “relating to ineligibility to receive visas and the exclusion or

deportation of aliens.” The legislative history of § 102 indicates clearly

that the Congress, in leaving these matters to the President, was simply

recognizing the constitutional limitations on its ability to control or

regulate the President’s constitutional power to receive (and expel) the

foreign representatives of countries with whom we have diplomatic

relations. See H.R. Rep. No. 1365, 82nd Cong., 2nd Sess. 34 (1952).

We believe this congressional recognition of the President’s exclusive

power to deal with foreign diplomatic personnel is relevant to a deter­

mination of the extent to which foreign diplomatic personnel, between

the time they are declared persona non grata and the time they depart

the United States or are forcibly expelled from the United States, may

assert some legal entitlement to remain in the United States under the

Immigration and Nationality Act. We do not believe they have any

such entitlement during that period.

Both immigrant and nonimmigrant aliens, whether in this country

legally or illegally, are generally entitled to claim various rights to

remain in this country should it otherwise be determined that they are

deportable. Indeed, § 241(e) of the Immigration and Nationality Act, 8

U.S.C. § 1251(e), recognizes that diplomatic personnel who fail to main­

tain their status as diplomatic personnel may not, when they lose their

status, be required by the Attorney General to depart the United States

without the approval of the Secretary of State except under certain

limited circumstances. Thus, the Immigration and Nationality Act rec­

ognized that diplomatic personnel may lose their status and, in doing

so, become legally entitled to assert other rights to remain in the United

States. The question, however, is whether diplomatic personnel, so long

as they are deemed by the President to retain that status, may claim

statutory entitlements to remain in this country after they have been

declared persona non grata and ordered to depart the United States.

In addressing this issue, we would first note that a construction of the

Immigration and Nationality Act which would permit foreign diplo­

matic personnel having been declared persona non grata and ordered to

leave the country to assert other legal rights to remain in this country

and therefore, by virtue of the process to which they would be entitled,

at the very least substantially delay their departure, would directly

impinge on the President’s power under the Constitution to deal with

diplomats and to conduct our foreign relations. Particularly where the

order for foreign diplomatic personnel to depart is directly related to

the conduct of important foreign relations, which it clearly would be

with regard to Iranian diplomatic personnel, we believe there would be

a strong presumption against implying that Congress, by statute, gave

215

such diplomatic personnel the means to frustrate a decision by the

President. Cf. N arenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) cert,

denied, 446 U.S. 957 (1980). Generally, statutes should not be read to

conflict with the Constitution, Crowell v. Benson, 285 U.S. 22, 62 (1932),

treaties, United States v. Lee Yen Tai, 185 U.S. 213, 221-22 (1902), or

the law of nations, Lauritzen v. Larsen, 345 U.S. 571, 578 (1953).

As indicated above, § 102 of the Act, 8 U.S.C. § 1102, generally sets

foreign diplomatic personnel apart from other classes of nonimmigrants

for purposes of the Act. There would appear to be no judicial prece­

dent regarding what rights foreign diplomatic personnel might have to

interpose legal objections based on federal substantive law to their

being expelled from the country on order of the President. One line of

authority, however, dealing with persons paroled into this country

pursuant to § 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5), supports our

conclusion that foreign diplomatic personnel should be viewed as

having no such rights.

Under § 212(d)(5), the Attorney General is authorized to parole aliens

into the United States under certain circumstances. Notwithstanding the

fact that such parolees are physically within the United States, the

Supreme Court has held that they are not entitled to assert any legal

entitlement to remain in the country beyond the terms upon which they

were paroled into the country even though, as a factual matter, they

might otherwise qualify under the Immigration and Nationality Act to

remain in the United States or at least to receive the Attorney Gener­

al’s consideration of their claim to legal entitlement to remain in the

United States. See Leng M ay M a v. Barber, 357 U.S. 185 (1958).

Although parolees, unlike foreign diplomatic personnel, do not tech­

nically have “nonimmigrant” status, both classes of persons are phys­

ically present in this country. In the case of parolees, the courts have

determined that they have no entitlement to assert any legal right to

remain in the country because they have not “entered” the country

even though, as indicated above, they may be physically present not

only at the border but indeed within the interior of the United States. A

district court has summed up this concept of entry by stating that entry

“means freedom from governmental restraint . . . Klapholz v.

Esperdy, 201 F. Supp. 294, 297 (S.D. N.Y. 1961). These cases clearly

establish the proposition that the Constitution does not itself affect the

power of the Congress or the President to effect the removal of some

classes of persons within our physical borders summarily.

In short, we do not believe that foreign diplomatic personnel have

any statutory right to assert any legal entitlement to remain in the

United States once they have been declared persona non grata and have

been ordered to leave the country. This reading of the Immigration and

Nationality A ct is consistent with and supported by the doctrine, dis­

cussed supra, that statutes should be construed to avoid raising doubts

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as to their constitutionality, Crowell v. Benson, supra; Broadrick v.

Oklahoma, 413 U.S. 601 (1973). It is also consistent with the most

recent expression by the Senate touching on this issue.

In its report regarding the ratification of the Convention on the

Privileges and Immunities of the United Nations, the Senate Committee

on Foreign Relations paid special attention to several reservations to

the proposed Convention, one of which stated:

Persons who are entitled to diplomatic privileges and

immunities under the Convention shall not be required to

leave the United States otherwise than in accordance with

the customary procedure applicable to members of diplo­

matic missions accredited or notified to the United States.

Ex. Rep. No. 17, 91st Cong., 2nd Sess. 5 (1970). On its face, this

reservation clearly assumes the existence of a nonstatutory, presiden-

tially controlled and supervised procedure for the expulsion of foreign

diplomatic personnel. More importantly, for present purposes, the

Senate Committee went on to state in its report (id.):

As a final recourse, under the proposed reservation and

present law, the United States can compel the departure

from its territory of anyone declared persona non

grata. . . .

A separate question arises whether a foreign diplomat having been

declared persona non grata and ordered to leave the United States could

frustrate or delay the execution of that order either by himself renounc­

ing his status as a foreign diplomat or having his diplomatic credentials

revoked by his government. Although the issue is not free from doubt,

we believe that neither the individual act of a foreign diplomat nor an

act of the sending state which would substantially undermine the for­

eign policy objective of the President should be permitted to do so.

Thus, were the President to determine that the quick and sure expulsion

of an identified group of foreign diplomats would significantly advance

the foreign policy interests of the United States, we would not read

either international law, i.e., the Vienna Convention, or domestic law,

i.e., the Immigration and Nationality Act of 1952, as permitting the

frustration of that foreign policy objective and the President’s constitu­

tional authority to carry it out. Under Article 9 of the Convention,

failure of the sending state to withdraw its diplomatic personnel in such

situations specifically entitles the receiving state to strip the foreign

diplomatic personnel involved of their status as diplomats. We see no

logical reason to suggest that Article 9 does not implicitly recognize

the power of receiving states to take action short of totally withdraw­

ing that status and the immunities that accompany that status. As

indicated in Part I of this memorandum, we believe the President

constitutionally may do so. In this situation, the status of the diplomatic

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personnel does not necessarily revert to one of being merely “illegal

aliens” in the United States.

This analysis also would apply, we believe, to a situation in which a

foreign diplomat, rather than complying with a directive to depart the

United States, went into hiding and was later found after the scheduled

date for his departure had passed. In such a situation, we see no reason

to recognize that act as bringing him within the protection of the

Immigration and Nationality Act any more than a similar act commit­

ted by a parolee. W hether Congress could constitutionally provide such

protections for “ex-diplomats” is a question we need not address; we

simply conclude that Congress has expressed no intent in the Immigra­

tion and Nationality Act for such foreign diplomats to receive the

benefits of the United States domestic law as a result of their defiance

of an order issued by the President. Rather, Congress by its silence has

left to the President the determination of when, for domestic law

purposes, a foreign diplomat may lose that status and secure the benefits

of our domestic law.

Notwithstanding the clear constitutional power of the President to

receive ambassadors and public ministers, their status as nonimmigrant

aliens under the Immigration and Nationality Act may make it prudent

for the Executive to take certain actions that might make it more

difficult for a recalcitrant Iranian diplomat to challenge successfully the

President’s decision in a federal court. Certain sections of the Act,

particularly §§245 and 248, U.S.C. §§ 1255 and 1258 might be invoked

as allowing a nonimmigrant to apply, as any other nonimmigrant may

apply, to adjust his status or to change his classification. Since those

sections entitle an alien “who is continuing to maintain” his nonimmi­

grant status to make such applications, it would seem prudent for the

Executive to use powers conferred by the Immigration and Nationality

Act which might forestall this eventuality. Section 22 l(i) of the Immi­

gration and Nationality Act, 8 U.S.C. § 1201(i), provides that after the

issuance of a visa “the Secretary of State may at any time, in his

discretion, revoke such visa or other documentation. Notice of such

revocation shall be communicated to the Attorney General and such

revocation shall invalidate the visa or other documentation from the

date of issuance.” Thus, if the Secretary revoked the visas of diplomats

who were declared persona non grata, the effect would be to cancel the

diplomat’s nonimmigrant status, with the result that his arguable entitle­

ment to adjustment would disappear.

While termination of the status of a diplomat is rare in our practice,

this is precisely what was done in 1961 in the case of Miroslav

Nacvalac, a member of the Permanent Mission of the Czechoslovak

Socialist Republic to the United States. The record indicates that prior

to the revocation of Mr. Nacvalac’s status under § 101(a)(15)(G) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(G), he had

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indicated an interest in discussing the possibility of remaining in the

United States. In Press Release 421 dated June 21, the Department of

State indicated that the effect of the revocation of Mr. Nacvalac’s

status “is to place [him] in the category of an alien illegally in the

United States of America.” The press release continued: “Under the

laws and regulations of the United States of America, Nacvalac may

elect to depart voluntarily or in lieu of such voluntary departure, be

removed.” A footnote to the press release, which was reprinted in the

Department of State Bulletin Vol. XLV, page 67, indicated that Mr.

Nacvalac left the United States the next day.

There have been only two decided cases in which a judge has

confronted the question of visa revocation by the Secretary of State. In

the first case there was no opinion. The second case, which was

decided last year, is Knoetze v. United States, A ll. F. Supp. 201 (S.D.

Fla. 1979), a f f d 634 F.2d 207 (5th Cir.), cert, denied 454 U.S. 823

(1981). In that case Judge Rottger of the United States District Court

for the Southern District of Florida sustained the Secretary’s power to

revoke visas. However, in his opinion he expressed concern that, when

an alien whose visa was being revoked was in the United States, he did

not have an administrative mechanism to insure that a revocation had

not been erroneous. To meet this point, we believe that if it is decided

for reasons of prudence to revoke visas of certain Iranian diplomats, the

Department of State should establish an informal board of review to

consider claims that revocation had been based on a mistake of fact.

In summary, we believe that the President has the authority to

require the removal from the United States of diplomats declared per­

sona non grata. However, we believe that prudence dictates that in

certain cases we should revoke the visas of such diplomats in order to

forestall invocation of sections of the Immigration and Nationality Act

as a basis for challenging the President’s decision. We believe that by

using the revocation power, the government could demonstrate to a

court that an objecting diplomat or consul had no colorable claim for

relief under the terms of the Act.

2. Diplomatic property

Protection of embassy premises and diplomatic personnel is generally

performed by the Secret Service’s Uniformed Division under 3 U.S.C.

§ 202, which provides that, subject to the supervision of the Secretary

of the Treasury, the Division shall perform “such duties as the Direc­

tor, United States Secret Service, may prescribe in connection with the

protection of the following . . . (4) foreign diplomatic missions located

in the metropolitan area of the District of Columbia; . . . and (8)

foreign diplomatic missions located in such areas in the United States,

its territories and possessions, as the President, on a case-by-case basis,

219

may direct. The members of such force shall possess privileges and

powers similar to those of the members of the Metropolitan Police of

the District of Columbia.”

This statute first extended protection to diplomatic missions in 1970,

in response to concern that the Metropolitan Police were providing

inadequate protection against ordinary crime. Pub. L. No. 91-217, 84

Stat. 74. See generally S. Rep. No. 659, 91st Cong., 2d Sess. (1970). The

extent of the “protection” that may be afforded is otherwise undefined

in the legislative history. The ordinary meaning of the term suggests

safeguarding the premises against damage or theft, and the personnel

against assaults. The duty imposed on the United States by the Vienna

Convention to protect mission premises even after the recall of the

personnel strongly suggests that the Secret Service’s duties do not end

with the sealing of a mission. Where recall is temporary, as here, there

presumably must be a mission to which the personnel may return when

relations improve. Thus, the Service has present duties to protect Ira­

nian diplomatic property against third parties. These duties will extend

to the consulates, however, only if the President so directs the Service.

More difficult questions surround the power of the Service regarding

nondiplomatic persons who assert the permission of the sending state to

enter. Here, because the President has sole power to determine what

governments and ministers are to be recognized, we believe there is

implied power for the President to direct the Service to forbid access

to* those not currently recognized as accredited diplomatic personnel to

ensure that only those having diplomatic business with the embassy

have access to it.

Under 18 U.S.C. §970, damage or unauthorized occupancy of a

diplomatic mission is a crim e.17 This provision, passed in response to

terrorism at the Munich Olympics and elsewhere, is part of the “Act

for the Prevention and Punishment of Crimes Against Internationally

Protected Persons,” Pub. L. No. 94—467, 90 Stat. 1997. This statute

17 (a) W hoever willfully injures, dam ages, o r destroys, o r attem pts to injure, dam age, or

destroy, any property, real o r personal, located w ithin th e U nited States and belonging to

o r utilized o r occupied by any foreign governm ent o r international organization, by a

foreign official o r official guest, shall be fined not m ore th an $10,000, o r im prisoned not

m ore than five years, o r bo th .

(b) W noever, willfully w ith intent to intim idate, coerce, threaten, o r harass—

(1) forcibly thrusts any p art o f him self o r any o bject w ithin or uport that portion o f any

building o r premises located w ithin the U nited States, w hich portion is used or

occupied fo r official business o r for diplom atic, consular, o r residential purposes by—

(A ) a foreign governm ent, including such use as a mission to an international

organization . . . ;

(2) refuses to d ep art from such portion o f such building o r premises after a request—

(A ) by an em ployee o f a foreign g o vernm ent o r o f an international organization, if

such em ployee is authorized to m ake such request by the senior official o f the unit

o f such g o vernm ent o r organization w hich occupies such portion o f such building or

premises; . . .

(D ) by anv person present having law enforcem ent pow ers;

shall b e fined not m ore th an $500 o r im prisoned not m ore than six m onths, o r both.

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surely provides authority for measures designed to protect the embassy

against entry by anyone who has no permission from the government of

Iran. Whether this ban can include those purportedly authorized access

by the Iranian government but not recognized as accredited personnel

by the United States may be less clear. Section 970 refers to 18 U.S.C.

§ 1116(b) for its definition of the foreign government whose premises

are protected, and includes countries “irrespective of recognition by the

United States.” The foreign officials entitled to demand that unauthor­

ized persons depart the premises are defined, however, as those “duly

notified to the United States as an officer or employee of a foreign

government.” 18 U.S.C. § 1116(b)(3)(B). Thus, the statute appears not

to authorize unaccredited foreign persons to demand the exit of others

from diplomatic premises. When the accredited personnel have been

expelled, this definition implies added scope to the authority under

§ 970(b)(2)(D) of “any person present having law enforcement powers”

to order departure from the mission as necessary.

This federal statute was not meant to “relieve any person of any

obligation imposed by any law of any state, . . . or the District of

Columbia.” H.R. Rep. No. 1614, 94th Cong., 2d Sess. 8 (1976). Because

this statute was explicit in its refusal to preempt local criminal law, the

Secret Service and the Metropolitan Police should have powers so

conferred available to them. See Fatemi v. United States, 192 A.2d 525

(D.C. Ct. App. 1963) (holding that Iranian students occupying the

embassy against the wishes of the Minister could be convicted of

“unlawful entry” under the D.C. Code).

Finally, we believe that the Federal Bureau of Investigation (FBI)

may participate in controlling access to diplomatic property under its

general enabling authority, 28 U.S.C. § 533:

The Attorney General may appoint officials—

(1) to detect and prosecute crimes against the United

States;

(2) to assist in the protection of the person of the

President; and

(3) to conduct such other investigations regarding

official matters under the control of the Depart­

ment of Justice and the Department of State as

may be directed by the Attorney General. . . .

The presence of 18 U.S.C. §970, making unauthorized entries into

diplomatic property a federal crime, is sufficient to invoke FBI jurisdic­

tion under § 533(1).

We would add that because actions taken to carry out the President’s

order for diplomats to leave this country are incident to an exercise of

his constitutional power, they neither rely on statutory authority for

direct support nor are subject to the restrictions of the Posse Comitatus

221

Act, 18 U.S.C. § 1385, which generally restricts the use of Army or Air

Force personnel to enforce civilian criminal law. In addition, 18 U.S.C.

§ 1116(d) specifically permits the use of military personnel from all the

Armed Forces to enforce 18 U.S.C. §970. Thus, we believe that the

President is entitled to call on the full range of his resources in the

Executive Branch to achieve the objectives discussed herein. In addi­

tion, § 1116(d) permits the President to draw on the resources of state

or local law enforcement agencies in this situation.

III. The Due Process Clause of the Fifth Amendment

The final question presented by the expulsion of foreign diplomatic

personnel from the country is whether the Due Process Clause of the

Fifth Amendment requires that any kind of process be observed prior

to their expulsion. This Office has previously taken the position that

foreign diplomatic personnel derive their legal rights from their status

as diplomats under international law. We believe the Due Process

Clause is implicated, if at all, only with regard to the determination

whether a person about to be forcibly expelled from the United States

pursuant to an order of the President is in fact the person the President

ordered to be expelled. Pursuant to our meeting of March 28, 1980,

with representatives of the Department of State, we understand that a

procedure reasonably calculated to ensure expulsion only of those per­

sons previously ordered to be expelled by the President will be utilized.

In these circumstances, we believe that the Due Process Clause, if

applicable at all, would be fully satisfied and therefore we pretermit

further discussion of that issue.18

John M . H arm on

Assistant Attorney General

Office o f Legal Counsel

18 An issue related to the question of the applicability o f the Constitution to the forcible ejection of

a foreign diplom at from the United States is the extent to w hich the order of the President w ould be

subject to judicial review. Because a foreign diplom at being forcibly ejected w ould arguably be in the

“custody” o f the President’s agents w ho w ere carrying out the President’s order to depart, there might

be a colorable claim that a w rit o f habeas corpus pursuant to 28 U.S.C. § 2241(c)(4) w ould be

available. U nder o ur analysis above, w e believe that the only claim upon w hich a w rit o f habeas

corpus could even arguably be granted in this situation w ould be a claim that the person bringing the

action is not in fact the same person as the foreign diplom at ordered to leave the country by the

President. As indicated above, a procedure designed reasonably to ensure that such a mistake is not

made should reduce litigation risks to the minimum.

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