TERRORISM, EXTRADITION, AND ABDUCTION PROBLEM

Part IV: Alternatives to Extradition?

Table of Contents
Note: Parts I-III are found in the course booklet distributed in December 2014

A.

B.

C.

The Problem .......................................................................................................1

1.

Goals of the Negotiation Exercise ...............................................................1

2.

Summary of Facts ........................................................................................1

3.

Student Roles and Structure of the Exercise ................................................4

International Law in the U.S. Domestic Legal System ..................................5

1.

Treaties in U.S. Law ....................................................................................5

2.

Customary International Law in U.S. Law ..................................................7

The Law of Extraterritorial Abduction...........................................................9

1.

Customary International Law ......................................................................9

a. Basic Prohibition .....................................................................................9
b. Exceptions .............................................................................................12
i. Consent ............................................................................................12
ii. Self-Defense ...................................................................................14
c. Enforcement of the CIL Norm and Other Ramifications ......................15

2.

U.S. Domestic Law ....................................................................................20

Authority of the Federal Bureau of Investigation to Override
International Law in Extraterritorial Law Enforcement Activities ............21
Notes and Questions on OLC Opinions on Foreign Abductions ...............27

D.

Other Options? ................................................................................................28

E.

National Security Decision-making in the

United States Executive Branch .....................................................................29
1.

Student Roles in the U.S. Executive Branch..............................................29

2.

Views on the Proper Role of Government Attorneys on Questions

Relating to National Security and Executive Authority ............................33

ALTERNATIVES TO EXTRADITION?
A.

THE PROBLEM

1.
GOALS OF THE NEGOTIATION EXERCISE. In the remaining portion of Week One,
we shift the problem somewhat to take it (potentially) out of the realm of adjudication. We have
several objectives that we hope you will keep in mind as you continue the exercise:
First, these materials are designed to give you some sense of the ways in which
international lawboth treaties and customary international lawintersects with the domestic law
of a state (in particular, that of the United States), and the ways in which governmental actors in
the United States must contend with and reconcile international and domestic law obligations and
authorities, which sometimes might appear to point in quite different directions.
Second, these materials provide an example of something that is very important but often
underemphasizednamely, that much of international law is developed and interpreted not
through adjudication, or even though negotiation of formal international agreements, but instead
through the give and take of state practice, by various forms of so-called soft law,1 including
behind-the-scenes push and pull about how to implement existing treaties and customand not
only by what nations do, but also by what they say they do, i.e., what they admit to having done,
which might be very different than what goes on in fact.
Finally, these materials reflect the fact that often there is no occasion or opportunity for
judicial enforcement of international and domestic law. The Problem at issue during the remainder
of the week should encourage you to examine whether and how executive officials feel bound
to comply with their legal obligations where courts are not in the picture, and whether
unenforceable legal obligations should or can limit executive action, particularly when exigent
claims of national security are at stake. In particular, you should be asking yourselves how the
President should balance national security needs with his constitutional obligation to take Care
that the Laws be faithfully executed, and how legal advisors to such an official should interpret
the law and offer legal advice where theirs might be the last word on the question.
2.
SUMMARY OF FACTS. For this, the final portion of our Week One exercise, you
should assume that the ECtHR has heard oral argument on Hunters and Martins petitions and
that the courts decisions in the Hunter and Martin cases are pending. By all accounts, a
majority of the judges at argument appeared to express sympathy with the petitioners claims. And
most careful observers have concluded that there is a good chancebut hardly a certaintythat
the ECtHR will enjoin Russia and/or France from extraditing the petitioners to the United States
as long as the United States will not guarantee that the petitioners will not be subject to either the
death penalty or mandatory life without parole in a supermax facility.

On this phenomenon generally, see the Georgetown Law Ryan Lecture by Department of State Legal Adviser
Harold Koh (Oct. 18, 2012), http://www.law.georgetown.edu/news/web-stories/harold-koh-delivers-ryanlecture.cfm.

Moreover, you should recall, and keep in mind, that Russia and France would not have
jurisdiction to prosecute these individuals under their own domestic law.
In the meantime, U.S. intelligence services have obtained equivocal intelligence, both from
highly classified human sources and from covert electronic surveillance, suggesting that both
Hunter and Martin might have been engaged in discussions with high-level WLA leaders about
the prospect of future terrorist attacks. The surveillance evidence so far is a bit hazythe persons
in question, apparently apprehensive that their conversations might be overheard, appear to speak
in code; and the United States has not been able to definitively corroborate the planning activities
with multiple human sources. The static that the U.S. intelligence community is hearing
indicative of planning for attackshas accelerated in recent months, a pattern that in the past has
been a somewhat strong indicator that such plans are coming closer to fruition. Nevertheless,
although it appears to U.S. intelligence analysts that Martin, at least, might be a central figure in
the planning, and that Hunter might have some unknown operational role, the United States has
not yet been able to develop any firm evidence of when or where the attacks might occuror,
indeed, any airtight assurance that Martin and Hunter are indeed involved in such WLA planning.
The National Security Agency and others in the Intelligence Community fear that the attack may
happen any day now, but they still dont know when or where. They inform the National Security
Advisor that it would be extremely helpful to be able to interrogate Martin, and to a lesser extent
Hunter, to obtain further information about the possible attack.
The Administration of U.S. President Treanor is growing increasingly concerned that the
ECtHR will preclude Russia and France from extraditing Hunter and Martin to the United States.
Therefore it has begun internal discussions concerning whether the President and Attorney General
should direct the Federal Bureau of Investigation to attempt to arrest Hunter and Martin overseas
i.e., to abduct or kidnap themand to bring them to the United States for trial on the pending
criminal charges. (This practice is often referred to as rendition to justice. Although, as you
will see, it raises very serious legal and diplomatic concerns, it is distinct from the even more
controversial practice of rendering a detainee to another nation for incommunicado, often
abusive, interrogation.)
Lower-level CIA operatives have reached out to their opposite numbers in Russia and
France and received some (very ambiguous) indications that the Russian and French governments
might consider looking the other way if Hunter and Martin are forcibly removed from their
jurisdictionsbut the United States has not yet discussed such a possibility with any high-ranking
Russian or French officials.
The U.S. public has been clamoring for President Treanor to bring Hunter and Martin to
justice. The families of the victims of WLA terrorist attacks, especially the families of the two
guards killed in Chicago, have become very well-organized, and very vocal. Cable and radio
commentators are more incredulous every day about the notion that the United States needs
permission from Russia and Francelet alone from the ECtHRin order to detain and try these
alleged terrorists. The New York Times publishes a front-page story, based on a leak from unnamed
high-level Executive Branch officials, that the United States has obtained evidence that Hunter
and Martin are plotting future terrorist attacks against the United States. (The Times reports that
2

it afforded those officials anonymity because they had not been authorized to speak publicly about
such highly classified information.) Not surprisingly, the public outrage that Hunter and Martin
are walking freely around the streets of Moscow and Paris increases significantly as a result of
the Times story.
The Times story also includes leaks by anonymous Administration officials that abduction
is being considered as an option. The Administration refuses to either confirm or deny the report,
but the leak naturally causes an immediate international furor. Citizens of Russia and France have
begun to question whether it is in their best interests for armed U.S. operatives to enter their
countries to abduct Hunter and Martin, and feel that the United States anti-terrorism agenda ought
to be secondary to their own national sovereignty and safety. Moreover, a non-governmental
organization, Westphalian Citizens for Justice (WCJ), has mounted an aggressive publicity
campaign, proclaiming Hunters and Martins innocence and vowing to closely monitor all
government action concerning these cases; it has had considerable success in attracting publicity
in Europe. Additionally, two well-respected international human rights organizations, Human
Rights First and Amnesty International, have been closely examining Hunters and Martins case
before the ECtHR. They have begun to compile information about the possible human rights
concerns sketched out in both petitioners arguments before the ECtHR. The organizations are
increasingly worried about the human rights implications of the rumored abduction, especially if
it would mean pretermitting the ECtHR process. Additionally, Amnesty International has set aside
tens of thousands of dollars to initiate public relations campaigns in the United States, France
and/or Russia, to highlight the human rights issues raised by the rumored abduction plans of the
United States.
The Treanor Administration is not only eager to try Hunter and Martin, but also
understandably wishes to be able to convey to the public that the new President is tough on
terrorism, since that is certain to be a major issue in his upcoming re-election campaign. At the
same time, a central component of President Treanors 2016 campaign had been his promise to
preserve and strengthen the United States greatly improved relations with its European alliesa
development that President Treanor and others attributed, in no small measure, to his predecessors
renewed commitment to respect for, and adherence to, international law. During the campaign,
President Treanor often quoted with approval President Obamas remarks to the United Nations
that we are doing the hard work of forging a framework to combat extremism within the rule of
law. Every nation must know: America will live its values, and we will lead by example. The
world must stand together to demonstrate that international law is not an empty promise, and that
treaties will be enforced.2 In particular, the Treanor Administration, like the Obama
2

Remarks by the President to the United Nations General Assembly (Sept. 23, 2009),
http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-to-the-United-Nations-General-Assembly.
See also Harold Hongju Koh, Legal Adviser, U.S. Department of State, Speech to the Annual Meeting of the American
Society of International Law:
The Obama Administration and International Law (Mar. 25, 2010),
http://www.state.gov/s/l/releases/remarks/139119.htm (describing the most important difference between this
administration and the lastnamely, the Obama Administrations commitment to living our values by respecting
the rule of law). Mr. Koh stated that
. . . both the President and Secretary [of State] Clinton are outstanding lawyers, and they understand
that by imposing constraints on government action, law legitimates and gives credibility to
governmental action. As the President emphasized forcefully in his National Archives speech and
elsewhere, the American political system was founded on a vision of common humanity, universal

Administration before it, has publicly insisted that its authorities under statutory authorizations to
act against terrorist enemies overseas must be informed by the laws of war,3 and further has
urged the courts to construe such statutory authorizations if possible, as consistent with
international law.4 This Treanor/Obama perspective contrasts sharply with that of the preceding
George W. Bush Administration, which argued to the Supreme Court that the Charming Betsy
canoni.e., that an act of Congress should only be construed to violate the law of nations if no
other possible construction remainsdoes not apply to a statute, like [the law authorizing FBI
arrests overseas], that authorizes conduct by the branch of government most directly responsible
for the conduct of foreign affairs and involves a core power of the Executive Branch, 5 and with
the views of at least two judges who took sharp issue with the Obama Administrations view that
its military authorities were informed and limited by the laws of war.6
All of which is to say that the Treanor Administration is deeply sensitive to competing
values and objectives here, including: protecting the national security; obtaining vital intelligence
about possible impending attacks; securing justice for the Chicago shootings; strengthening the
United States foreign reputation and leadership role; and demonstrating respect for and adherence
to international law.
3.
STUDENT ROLES AND STRUCTURE OF THE EXERCISE. Students will leave behind
the roles they played from Monday through Wednesday of Week One and will represent a set of
U.S. Executive Branch officials and attorneys, including senior leadership. Students will be
assigned to particular roles within the Executive Branchsuch as the Attorney General, Secretary
of State, National Security Advisor, and Assistant Attorney General for the Office of Legal
Counsel. Students will receive their assigned roles on TWEN. A detailed description of
perspectives and functions of those particular officials are outlined below on page 29.
rights and rule of law. Fidelity to [these][] values makes us stronger and safer. This also means
following universal standards, not double standards. In his Nobel lecture at Oslo, President Obama
affirmed that [a]dhering to standards, international standards, strengthens those who do, and
isolates those who dont. And in her December speech on a 21st Century human rights agenda, and
again two weeks ago in introducing our annual human rights reports, Secretary Clinton reiterated
that a commitment to human rights starts with universal standards and with holding everyone
accountable to those standards, including ourselves.
See Respondents Memorandum Regarding the Governments Detention Authority Relative to Detainees Held at
Guantanamo Bay at 1-4, In re: Guantanamo Bay Detainee Litig., Misc. No. 08-442, Nos. 05-0763, 05-1646, 05-2378
(D.D.C. Mar. 13, 2009).
3

See Respondents Response to Petition for Rehearing and Rehearing En Banc at 7, al-Bihani v. Obama, No. 09-5051
(D.C. Cir. 2010) (citing Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804) (an act of Congress ought never to
be construed to violate the law of nations, if any other possible construction remains)).
4

Reply Brief for the United States at 3, United States v. Alvarez-Machain, No. 03-485 (U.S., 2004).

See al-Bihani v. Obama, 619 F.3d 1, 2-9 (D.C. Cir. 2010) (en banc) (Brown, J., concurring in the denial of rehearing
en banc); id. at 10-11, 23-44 (Kavanaugh, J., concurring in the denial of rehearing en banc) (Congress has provided
no indication that it wants courts to freelance and go beyond Congresss direction by imposing international-law limits
on the Executive. Moreover, the Charming Betsy canon of statutory construction does not authorize courts to read
international-law limitations into the authority granted to the President by the [Authorization for Use of Military Force
Congress enacted on September 18, 2001].).

Students will consider, both in their particular role and then collectively as the Presidents
most trusted legal and political advisors, whether the President legally can, and whether he should,
authorize the FBI to abduct Hunter from Russia and/or Martin from Franceand under what
circumstances. What are the likely consequences of abduction? Are there other legal alternatives
to consider?
On Thursday during the breakout session, students will meet in the same oral argument
groups (or pods) that convened for argument on Wednesday. Within each group, two to three
students will be assigned to one of the eight U.S. Executive Branch roles, outlined infra page 29,
and will first work together, as partners within the assigned role, to identify their actors priorities
and position on the issue. The entire group will then work together to formulate a recommendation
to make to the President, taking into account their roles interests, the various alternatives to
extradition that may be attractive, and the legal and political implications and strategy for how
various options might be effected. The President, played by your professor, will be visiting these
negotiation sessions and will ask for the groups recommendation (depending on the time the
President appears, this recommendation may be a preliminary one and/or it may be the groups
final recommendation). Each pod must make a final recommendation by the close of the
negotiation and report their decision to their Global Teaching Fellow(s) no later than the deadline
set by the President.

B.

INTERNATIONAL LAW IN THE U.S. DOMESTIC LEGAL SYSTEM

You might think at first that if the contemplated abduction of Hunter and Martin would
violate international law, that is the end of the legal question from the perspective of the United
Stateseither it decides to break the law, or not. But things are not so simple, because
international law is just one source of the law that might govern the situation at hand; and thus in
order to see the question in full, one must also consider the role of a nations domestic law (in our
exercise, U.S. domestic law, in particular), and its relationship to international law.
What role does international law play in domestic legal systems? That is to say: Wholly
apart from any international obligations and sanctions, does a states national, domestic law itself
require compliance with international law, or permit its violation? The answer will depend upon
the domestic legal system in question. Some states give international law pride of place in their
own legal systems, to the extent of subordinating their own law to international norms. Several
European states, either through their constitutions or the practice of their courts, apply international
law directly as if it were their own law, and in some nations international law may even have
priority over domestic statutes. Matters are somewhat more ambiguous in the United States,
however.
1.

Treaties in U.S. Law

The Supremacy Clause of Article VI of the U.S. Constitution provides that:

This Constitution, and the Laws of the United States which shall be made in
5

Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
Moreover, the President has the constitutional obligation to take Care that the Laws be
faithfully executed (Article II, section 3)a duty that extends to duly ratified treaties. Thus, the
Executive Branch is constitutionally compelled not to violate treaties to which it is a party, wholly
apart from the United States international law obligations, just as it must comply with
constitutionally valid statues.
What if a treaty and a statute are inconsistent with one another? Which is supreme over
the other? The Supreme Court has explained that [b]y the Constitution a treaty is placed on the
same footing, and made of like obligation, with an act of legislation. Both are declared by that
instrument to be the supreme law of the land, and no superior efficacy is given to either over the
other.7 Accordingly, if there is a conflict between a treaty provision and an act of Congress (and
courts cannot reconcile the two, as they will try hard to do), the last-in-time prevails. If the
treaty was ratified before the statute was enacted, the statute controls to the extent of any conflict
and vice versa. This means that if Congress wishes to do so, it can enact a statute that prevents the
United States from complying with its treaty obligations.
Moreover, even where Congress has not taken such an extraordinary step, some treaties
themselves are not effective as domestic law until Congress takes further, affirmative steps to enact
implementing legislation. For example, as Chief Justice Marshall explained in Foster v. Nielson,8
if a treaty requires states parties to criminalize certain conduct, the United States cannot satisfy
that treaty obligation through federal law unless and until Congress enacts a criminal statute
making such conduct illegal. Such treaty provisions that require further means of being
implemented are often characterized as non-self-executing.9
It is important to note that, even in the rare case where a rule of international law or a
provision of an international agreement is superseded by statute as a matter of domestic law, or
where a non-self-executing treaty provision requires further action by Congress in order to become
effective as a matter of domestic lawlegislation that Congress might be reluctant to enactthat
does not relieve the United States of its international law obligations, or excuse the United States
from possible consequences of a violation of those obligations.10 That is to say, there may be cases
in which U.S. actors are fully compliant with their domestic law obligations, but nevertheless act
7

Whitney v. Robertson, 124 U.S. 190, 194 (1888).

27 U.S. (2 Pet.) 253, 254 (1829).

The distinction between self-executing and non-self-executing treaty provisions, and the legal effect of a non-selfexecuting provision, are vexing and contentious issues under U.S. law; but you need not consider them further here.
See LUBAN ET AL., INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW 55-67 (2014).
10

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 115(1)(b). See also id., ch. 2,
Introductory Note; 111, cmt. (a); 115 cmt. (b).

in a way that causes the United States to breach its international legal obligations. In such a case,
the United States remains accountable to other nations for its breach of, or noncompliance with,
its international law obligations.

2.

Customary International Law in U.S. Law

The Supremacy Clause of the U.S. Constitution does not mention customary international
law (CIL); by its terms, only the Constitution, statutes, and treaties are the supreme Law of the
Land. Indeed, the only mention of CIL in the Constitution is a clause in Article I, section 8
empowering Congress to define and punish Piracies and Felonies committed on the high Seas,
and Offences against the Law of Nations. Nevertheless, U.S. courts have generally adhered to
the rule that prevailed in England before U.S. independence (and continues to prevail there
today)that CIL is part of the Law of the Land. As Chief Justice Jay wrote, [t]he United
States, by taking a place among the nations of the earth, [had] become amenable to the law of
nations.11 The canonical form of this proposition by the U.S. Supreme Court appears in The
Paquete Habana:
International law is part of our law, and must be ascertained and administered by
the courts of justice of appropriate 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 executive or legislative act or judicial
decision, resort must be had to the customs and usages of eivilized [sic] nations;
and, as evidence of these, to the works of jurists and commentators, who by years
of labor, research and experience, have made themselves peculiarly well acquainted
with the subjects of which they treat. Such works are resorted to by judicial
tribunals, not for the speculations of their authors concerning what the law ought to
be, but for trustworthy evidence of what the law really is.12
The Supreme Courts early embrace of CIL should not surprise us, given that in the
founding era there were several reasons it was important for the United States to be seen as being
bound by the law of nations. One of the major defects of the Articles of Confederation was the
inability of the original national government to conduct a coherent foreign policy in the first dozen
years of the Republic. As Hamilton had complained in The Federalist No. 15, under the Articles
of Confederation,
[w]e may indeed with propriety be said to have reached almost the last stage of
national humiliation. There is scarcely anything that can wound the pride or
degrade the character of an independent nation which we do not experience. Are
there engagements to the performance of which we are held by every tie respectable
among men? These are the subjects of constant and unblushing violation. Is
respectability in the eyes of foreign powers a safeguard against foreign
11

Chisholm v. Georgia, 2 U.S. 419, 474 (1793).

12

The Paquete Habana, 175 U.S. 677, 700 (1900).

encroachments? The imbecility of our government even forbids them to treat with
us.13
Thus, as two scholars have recently explained,
[A] core purpose of American constitution-making was to facilitate the admission
of the United States into the European-based system of sovereign states governed
by the law of nations. The fundamental purpose of the Federal Constitution was
to create a nation-state that the European powers would recognize, in the practical
and legal sense, as a civilized state worthy of equal respect in the international
community. The framers believed that the republic could not expect equal
membership unless it demonstrated its respectability as defined by contemporary
norms, which in turn depended on whether it could, or would, comply with its
international duties. The framers therefore embedded a set of interrelated and
innovative mechanisms into the text of the Constitution to ensure that the new
republic would comply with its obligations under treaties and the law of nations.14
The proposition that CIL is part of our law has received significant scholarly criticism of
late, especially as applied to the forms of modern CIL that regulate a states treatment of its own
citizens. The proposition has many scholarly defenders as well, however.
An important question left open by The Paquete Habana concerns the extent to which U.S.
courts may enforce CIL against officials of the federal Executive Branch. The Paquete Habana
instructed the courts to enforce CIL when there is nocontrolling executive or legislative act.15
When, if ever, is the act of an executive official that violates CIL, but that is otherwise authorized
under U.S. domestic law, a controlling executive act? At least one lower court has concluded
that courts may not compel the Executive to comply with CIL in the face of conflicting decisions
of the President and other high-level officials.16 (Note, however, that the Court in The Paquete
Habana itself enforced CIL against federal officials.)
Relatedly, and of particular importance to this final portion of our Week One problem, the
Supreme Court has recently reaffirmed in several different contexts that, at a minimum, domestic
statutes should, where possible, be interpreted consistently with CILthe so-called Charming
Betsy canon of statutory construction, which assumes that Congress does not intend to act in a way

13

THE FEDERALIST NO. 15 (Mentor ed., 1961).

14

David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of
Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. REV. 932, 935-36 (2010).
15

The Paquete Habana, 175 U.S. at 700.

16

Garcia-Mir v. Meese, 788 F2d 1446, 1454-55 (11th Cir. 1986).

that results in the United States breaching of its international obligations unless the legislature says
so expressly.17

C.

THE LAW OF EXTRATERRITORIAL ABDUCTION

Whether it would be lawful for the FBI to abduct Hunter or Martin and bring them to the
United States for criminal trial is a question that depends upon both U.S. domestic law and
customary international lawand upon the relationship between these two bodies of law. We will
begin our summary with the relevant international law.

1.

Customary International Law

Would the FBIs forced return to the United States of Hunter and Martin from France and
Russia, respectively, violate international law?
a.
Basic Prohibition. To ask the question is (at least to adherents of the classical
model of IL) to answer it: There is little dispute that, unless some exception applies (see below),
longstanding international law norms of sovereignty and territorial integrity prohibit law
enforcement officers of one state from exercising their functions in the territory of another state.
Section 432(2) (Measures in Aid of Enforcement of Criminal Law) of the Restatement (Third) of
the Foreign Relations Law of the United States (1987) sets forth the relevant customary rule:
432. Measures in Aid of Enforcement of Criminal Law
.
(2) A states law enforcement officers may exercise their functions in the territory of
another state only with the consent of the other state, given by duly authorized officials of
that state.
COMMENTS & ILLUSTRATIONS
Comment:

b. Territoriality and law enforcement. It is universally recognized, as a corollary

of state sovereignty, that officials of one state may not exercise their functions in the
territory of another state without the latters consent. Thus, while a state may take certain
measures of nonjudicial enforcement against a person in another state, its law enforcement

17

See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (citing Murray v. The Schooner
Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ([A]n act of congress ought never to be construed to violate the
law of nations if any other possible construction remains.)).

officers cannot arrest him in another state, and can engage in criminal investigation in that
state only with that states consent. . . .
c. Consequences of violation of territorial limits of law enforcement. If a states
law enforcement officials exercise their functions in the territory of another state without
the latters consent, that state is entitled to protest and, in appropriate cases, to receive
reparation from the offending state. If the unauthorized action includes abduction of a
person, the state from which the person was abducted may demand return of the person,
and international law requires that he be returned. If the state from which the person was
abducted does not demand his return, under the prevailing view the abducting state may
proceed to prosecute him under its laws.
REPORTERS NOTES
1. Exercise of enforcement functions in foreign state without consent. On
numerous occasions, police or other law enforcement officers have pursued the trail of a
suspect from their own to another state. The states in whose territory such activity occurred
have usually protested such action as violations of international law. In some instances the
offending officials were punished by the state whose territory was violated. In 1973, for
instance, an Italian inspector of finances was arrested in Switzerland for making inquiries
there about movement of contraband toward Italy. In another episode an Italian inspector
was working with French police in an effort to arrest in France an Italian national accused
of killing two Italian policemen. When the Italian policeman, believing his life to be in
danger, drew his gun and wounded the suspect, he was indicted in France on a number of
criminal charges. In a case that received wide attention, two French customs officials
traveled to Switzerland on several occasions in 1980 to interrogate a former official of a
Swiss bank, with a view to gaining information about French citizens believed to be hiding
funds from the French tax and exchange control authorities. The person interrogated
informed the Swiss federal prosecutors office, which caused the Swiss police to arrest the
French officials on their next visit. The officials were convicted of committing prohibited
acts in favor of a foreign state, as well as of violation of the Swiss banking and economic
intelligence laws. Even though the two French defendants were engaged in official
business on behalf of the government of a friendly foreign state, they were given substantial
sentences.
***
As the chief reporter for the Restatement later wrote: When done without consent of the
foreign government, abducting a person from a foreign country is a gross violation of international
law and gross disrespect for a norm high in the opinion of mankind. It is a blatant violation of the
territorial integrity of another state; it eviscerates the extradition system (established by a
comprehensive network of treaties involving virtually all states).18

18

Louis Henkin, A Decent Respect to the Opinions of Mankind, 25 J. MARSHALL L.REV. 215, 231 (1992).

10

The United States has never taken issue with this ruleindeed, it has long insisted upon it,
as explicated in congressional testimony of State Legal Adviser Abraham Sofaer in 1989:
Territorial integrity is a cornerstone of international law; control over territory is
one of the most fundamental attributes of sovereignty. Green Hackworth, one of
my predecessors as Legal Adviser, explained in1937 that it is a fundamental
principle of the law of nations that a sovereign state is supreme within its own
territorial domain and that it and its nationals are entitled to use and enjoy their
territory and property without interference from an outside source. 5 Whiteman,
Digest of International Law 183 (1965). Forcible abductions from a foreign State
clearly violate this principle. In his important Survey of International Law in 1949,
Sir Hersh Lauterpacht wrote of the obligation of states to refrain from performing
jurisdictional acts within the territory of other states except by virtue of general or
special permission. Such acts include, for instance, the sending of agents for the
purpose of apprehending within foreign territory persons accused of having
committed a crime. Lauterpacht, E. (ed.), International Law, Vol. I, 487-488
(1970). See also Section 433, Restatement (Third) of the Foreign Relations Law of
the United States.
The United States has repeatedly associated itself with the view that unconsented
arrests violate the principle of territorial integrity. In 1876, for example, Canadian
authorities subdued a convict in Alaska in the course of transferring him between
two points in Canada. Secretary Fish protested the action, contending a violation
of the sovereignty of the United States has been committed. The abducted
individual was released following an official British inquiry. In another case, the
Canadian government abducted two persons from the United States and brought
them back to Canada for trial. After an official complaint by the United States, the
Canadian government apologized and offered to return the two. Satisfied with the
apology, the United States permitted Canada to try the two men for their felonies.
On the other side of the ledger, in 1871 British authorities protested the seizure by
a U.S. citizen of an individual from Canada. Although the United States denied
any official involvement in the abduction, the United States acceded to a British
request that charges be dropped against the abducted individual, and informed the
British, I trust that I need not assure you that the government of the United States
would lend no sanction to any act of its officers or citizens involving a violation of
the territorial independence or sovereignty of her Majestys dominions. More
recently, two American bail bondsmen seized an individual from Canada and
brought him to Florida for trial before the State courts. After vigorous Canadian
protest, and intervention by the federal government, the State of Florida released

11

the individual; the bail bondsmen were extradited to Canada and convicted.19
b.
Exceptions. There are two primary circumstances where international law
arguably does not prohibit such an extraterritorial arrest: (i) where the host nation consents; and
(ii) where the arrest is a proper means of self-defense against future attack against the arresting
country and the host nation is unable or unwilling to ameliorate that threat.
i.
Consent. As Restatement section 432(2) indicates, such an extraterritorial
arrest does not violate customary international law where it is done with the consent of the other
state, given by duly authorized officials of that state. As the Draft Articles on State Responsibility
(a document generally seen as reflecting customary international law) explain, [v]alid consent by
a State to the commission of a given act by another State precludes the wrongfulness of that act in
relation to the former State to the extent that the act remains within the limits of that consent.20
This is simply a corollary of the principle that consent or acquiescence by the offended state waives
any right it possessed, and heals any violation of international law.21
So, for example, many news reports and commentators have concluded that the United
States use of lethal force against al Qaeda members in Afghanistan, Iraq, Yemen, Somalia, and
Pakistan has often been done with the (undisclosed) consent of high-level officials of those
countries.22 And, as one commentator explains:
[T]he United States is hardly the only state that has received or relied on consent to
use force against armed non-state actors. For example, Bahrain recently invited
Saudi Arabian forces into Bahrain to help manage internal protests. The Saudi
Arabian military repeatedly used force in 2009 in Yemen against the Houthi rebels,
allegedly with Yemens consent.23
There is little, if any, established international law addressing the question of which
officials of the host state are duly authorized to provide the requisite consent. Presumably, that
is a question to be determined by the domestic law of the state in question.

19

FBI Authority to Seize Suspects Abroad: Hearing Before the House Subcomm. on Civil & Const. Rights of the
Comm. on the Judiciary, 101st Cong., 1st Sess. 31-33 (1989) (prepared statement of Abraham D. Sofaer, Legal
Adviser, U.S. Dept of State). See also U.S. Rejects Soviet Charges Concerning Refusal of Two Russian Teachers to
Return to Soviet Union, 19 DEPT OF STATE BULL. 251, 253 (1948) (when the Soviet Union attempted to kidnap a
Soviet citizen within the territory of the United States, the State Department declared that the Government of the
United States cannot permit the exercise within the United States of the police power of any foreign government).
20

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 20,
Annex to U.N. General Assembly Res. 56/83 (Dec. 12, 2001), available at http://www.un.org/law/ilc.
21

See 1 G. SCHWARZENBERGER, MANUAL OF INTERNATIONAL LAW 162 (4th ed. 1960).

22

See, e.g., Scott Shane, Yemen Sets Terms of a War on Al Qaeda, N.Y. TIMES, Dec. 4, 2010 (reporting that in a 2009
meeting between Yemeni President Saleh and President Obamas top counterterrorism adviser, Saleh gave the U.S.
an open door to engage in counterterrorism operations on Yemeni national territory).
23

Ashley S. Deeks, Consent to the Use of Force and International Law Supremacy, 54 HARV. INTL L.J. 1, 31 (2013).

12

Two other matters render the doctrine of consent even more uncertain in some cases.
First, assuming the consent is provided by duly authorized officials, it does not matter for
purposes of CIL compliance by the requesting state whether the consent violates the domestic law
of the host state, or the host states treaty obligations. This is obviously germane in our case, since
any consent by Russian or French officials for the United States to abduct Hunter and/or Martin
might violate Russia or Frances obligations under the European Convention. But from the
perspective of the United States, host-nation consent would preclude a violation of the CIL norm
by the United States even if the consenting Russian and/or French officials are transgressing their
own legal obligations.
Secondand often related to the question of whether consent violates the host states
domestic law or treaty obligationsconsent is often provided in secret. As one scholar has written:
Consent to the use of force generally anticipates military, intelligence, or law enforcement
activities that demand a level of secrecy. Because many of these activities are carried out in a
clandestine manner in locations inaccessible to journalists and non-governmental organizations,
reporting on those activities tends to involve speculation and surmise. Consent that fails to comply
with the host states domestic laws thus imposes relatively few costs, because there is little
transparency about what the host state consented to and what actions transpired pursuant to that
consent.24 This is especially the case when it comes to action against alleged terrorists,
particularly when they are not nationals of the host state: The host state may face significant
pressure to address the problems posed by these non-state actors, but be unable to do so. Therefore,
it has incentives to be sloppy about adhering to its own laws if doing so allows another state to
curb those problems.25 In addition to raising serious questions about the consenting officials
own obligations to comply with their domestic laws, this strategy naturally comes with significant
political and legal risk if the unlawful consent is ever revealed.26 But from the perspective of
international law, consent of the host nation is consent, whether or not it is ever publicly
acknowledged. (On the other hand, if it is not acknowledged, that presents a significant difficulty
in terms of the acting nations ability to explain internationally why its action comported with
international law.)
You should not simply assume that nations offer such consent cavalierly, or as a matter of
course. There can be huge costs, even if efforts are made to insist that the actors not acknowledge
the cooperative arrangement. (Imagine, for instance, the political fallout if it were to become
known that a U.S. official allowed foreign agents to abduct a U.S. citizen on U.S. soil.) A very
recent example demonstrates the point. In October of 2013, Navy SEALs went into Libya and
abducted Abu Anas al-Liby, who has been indicted in the United States as an alleged leader in the
al Qaeda conspiracy to bomb the U.S. embassies in Dar es Salaam and Nairobi in August 1998.
24

Id. at 24.

25

Id. at 25.

See id. at 38 n.156. So, for example, Polish prosecutors have endeavored to try two of Polands former leaders in
a special tribunal for their apparent decision to consent to the CIAs alleged operation of a secret detention facility in
Poland. See Marcin Sobczyk, The Slow Revelation of Polands CIA Detention Facilities, WALL ST. J., Aug. 4,
2010; Vanessa Gera & Monika Scislowska, Guantanamo Captive Gets Victim Status in Polish Secret Prison Probe,
MIAMI HERALD, Jan. 20, 2011.
26

13

Although Libyas interim government immediately issued a public demand for an apology from
the United States for what it called a kidnapping, anonymous officials promptly leaked that
after months of lobbying by American officials, the Libyans had consented to the United States
operations, at least as long as they could protest in public.27 This leak of alleged Libyan consent
resulted in riots and major security threatsindeed, militia promptly kidnapped the Libyan Prime
Minister (although he was released shortly thereafter).28
ii.
Self-Defense. A nation may use force, and thereby breach another states
sovereignty, in order to kill or (in this case) capture someone who poses a threat to engage in an
armed attack against the acting nation, so long as such use of force is necessary to suppress, and
proportionate to the need to suppress, the threatened armed attack. This right of self-defense is
not unlimitedit does not, for example, permit the breach of sovereignty in order merely to
apprehend, and bring to justice, those who have committed crimes in the past. Non-consensual
force can be used in another nations sovereign territory only prospectively, and, even then, the
standard view is that the requirement of necessity means that such force can only be used in order
to interdict future imminent harm.29 In recent years, some (including prominent U.S. officials)
have argued that the requirement of imminence of the threat should be adjusted with respect to
transnational terrorist groups such as al Qaeda, because although it is virtually certain that such
groups will strike against civilian populations, the nature of the groups makes it almost impossible
to ascertain in advance when and where such attacks will occur.30 Most nations, however, continue
to insist that the imminence criterion has real teethi.e., that force may be undertaken only as
27

Michael S. Schmidt & Eric Schmitt, U.S. Officials Say Libya Approved Commando Raids, N.Y. T IMES (Oct. 9,
2013), available at http://www.nytimes.com/2013/10/09/world/africa/us-officials-say-libya-approved-commandoraids.html?pagewanted=all&_r=0.
28

See Carlotta Gall, Show of Power by Libya Militia in Kidnapping, N.Y. TIMES (Oct. 10, 2013), available at
http://www.nytimes.com/2013/10/11/world/africa/libya.html?_r=0.
The requirement that the threat be of imminent harm derives from the classic formulation of a self-defense
justification offered by U.S. Secretary of State Daniel Webster in 1837a definition that became the template for the
evolving customary international law. Webster argued that the use of force to suppress a threat in another states
territory can be justified only if the necessity of that self-defence is instant, overwhelming, and leaving no choice of
means, and no moment for deliberation. Letter from Daniel Webster, U.S. Secy of State, to Lord Ashburton, British
Plenipotentiary (Aug. 6, 1842).
29

30

See, e.g., Remarks of John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, to
the Program on Law and Security, Harvard Law School, Cambridge, Mass. (Sept. 16, 2011):
We are finding increasing recognition in the international community that a more flexible
understanding of imminence may be appropriate when dealing with terrorist groups, in part
because threats posed by non-state actors do not present themselves in the ways that evidenced
imminence in more traditional conflicts. After all, al-Qaida does not follow a traditional command
structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it
attacks. Nonetheless, it possesses the demonstrated capability to strike with little notice and cause
significant civilian or military casualties. Over time, an increasing number of our international
counterterrorism partners have begun to recognize that the traditional conception of what constitutes
an imminent attack should be broadened in light of the modern-day capabilities, techniques, and
technological innovations of terrorist organizations.

14

a last resort, when no other mechanism will suffice to divert or prevent an immediate threat of
armed attack.
In all events, the requirement of proportionality mandates that the response be no more
than what is necessary to prevent the armed attack and remove the threat of reasonably foreseeable
attacks in the future.
Whether such use of force in self-defense is necessary and proportional depends in large
measure on whether the host state is capable of suppressing the threat. This has given rise to
what is colloquially known as the unwilling or unable test, which requires a victim state, before
using force in the territorial states territory without consent, to ascertain whether the territorial
state is willing and able to address the threat posed by the non-state group. If the territorial state
is willing and able, the victim state may not use force in the territorial state, and the territorial state
is expected to take the appropriate steps against the non-state group. If the territorial state is
unwilling or unable to take those steps, however, it is lawful for the victim state to use that level
of force that is necessary (and proportional) to suppress the threat that the non-state group poses.31
Beyond these general principles, however, international law does not provide much in the
way of detailed guidance about what, exactly, the unwilling or unable test requires. (Indeed,
there is not even an international consensus that the unwilling or unable test is an established
customary norm.) In the absence of such guidance, it is commonplacealthough not uniformly
the casethat when a state attempts to publicly justify its use of force in another states territory
in this context, it claims that it first asked the territorial state to take the requisite steps to suppress
the non-state actors activities, whether by arresting them, ejecting the actors from the country,
transferring them to the victim state, or using military force against them.32 And, almost as
frequently, if the host state complains about the breach of sovereignty, it publicly denies that its
efforts were inadequate to address the threat.
c.
Enforcement of the CIL Norm and Other Ramifications. If a state violates the
CIL norm against law enforcement arrests in the territory of another state, what are the possible
remedies for such a breach? Historically, the only party that has been able to enforce the rule in
any meaningful sense is the state whose sovereignty is breached. As Reporters Note 3 to
Restatement (Third) section 432 explains, [u]nder prevailing practice,, states ordinarily refrain
from trying persons illegally brought from another state only if that state demands the persons
return. In a number of cases, protest by the offended state resulted in the release or return of the
accused person.33 As that same Reporters Note illustrates, however, on occasion the offended
Ashley S. Deeks, Unwilling or Unable: Toward a Normative Framework for Extra-Territorial Self-Defense, 52
VA. J. INTL L. 483, 487-88 (2012).
31

32

Id. at 521.

Recall several historical examples provided in Legal Adviser Sofaers 1989 congressional testimony, quoted supra
note 19 and accompanying text. The Comment to Restatement (Third) section 432 asserts, without citation of any
authority, that this practice is compelled by customary international law: If the unauthorized action includes
abduction of a person, the state from which the person was abducted may demand return of the person, and
international law requires that he be returned.
33

15

state makes no such demand, and in those cases the violation of sovereignty may be addressed
through other diplomatic arrangements:
In 1960, the Nazi war criminal Adolf Eichmann was abducted from Argentina by
agents of the State of Israel, and taken to Israel for trial on charges stemming from
Eichmanns role in the Holocaust. The United Nations Security Council adopted a
resolution declaring that such acts, which affect the sovereignty of a Member State
and therefore cause international friction, may, if repeated, endanger international
peace and security. S.C. Res. 138, 15 U.N. SCOR, Resolutions and Decisions, at
4. Thereafter, Argentina and Israel reached a settlement that did not call for
Eichmanns return. When the defense of forcible abduction was raised during the
trial of Eichmann, the Israeli district court ruled, In view of the settlement of the
incident between the two countries before trial brought, judgment may without
hesitation be based on the continuous line of British, Palestinian and American case
law, beginning with Ex parte Scott and going on to Frisbie v. Collins and after.
Attorney General v. Eichmann, 36 Intl L. Rep. 18, 70-71 (Dist. Ct. Israel, 1961),
affirmed, 36 Intl L. Rep. 277 (Sup. Ct. Israel 1962).
Students may wonder: Does the captured individual have any recourse if (s)he was
abducted in violation of the sovereignty of another state? Can (s)he, for example, avoid criminal
prosecution and insist upon return to the state from which (s)he was taken? Probably not. In 1935,
the Draft Convention on Jurisdiction with Respect to Crime proposed by the Harvard Research in
International Law would have provided that no State shall prosecute or punish any person who
has been brought within its territory ... by recourse to measures in violation of international law or
international convention without first obtaining the consent of the State or States whose rights have
been violated by such measures.34 And there are rare cases in which states have appeared to adopt
such a practice.35 But customary international law itself does not categorically prohibit the
criminal trial of the wrongfully captured person.36
34

Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J. INTL L. 435, 442, 623-32 (Supp. 1935).

35

See, for example, this account offered by the International Criminal Tribunal for the Former Yugoslavia in
Prosecutor v. Nikolic, Case No. IT-94-2-AR73, 22 (June 5, 2003):
[I]n State v. Ebrahim [1991], the Supreme Court of South Africa had no hesitation in setting aside
jurisdiction over an accused kidnapped from Swaziland by the security services. Similarly, in the
Bennet case [1993], the House of Lords granted the appeal of a New Zealand citizen, who was
arrested in South Africa by the police and forcibly returned to the United Kingdom under the pretext
of deporting him to New Zealand. It found that if the methods through which an accused is brought
before the court were in disregard of extradition procedure, the court may stay the prosecution and
order the release of the accused.
36

A comment in the Restatement states that if the offended state demands the return of the abducted person,
international law requires that he be returned. Restatement 432, Comment c. Even if this were a customary
international law requirement (a proposition for which the Restatement does cite any authority), the Restatement does
not suggest that a criminal court must decline jurisdiction over the abducted person in order to ensure the abducting
nations compliance with that purported obligation to return. See also United States v. Alvarez-Machain, 504 U.S.
655, 669 (1992) (reasoning that even if the defendants abduction by agents acting at the direction of the U.S.
government had been in violation of general international law principles and Mexico had protested the abduction,
the decision of whether respondent should be returned to Mexicois a matter for the Executive Branch).

16

The domestic law of most countries likewise offers no such recourse.

Reporters Note (No. 2) to Restatement (Third) section 432 explains,

As another

Nearly all states have followed the rule that, absent protest from other states, they
will try persons brought before their courts through irregular means, whether or not
abduction from another state was in violation of international law. English cases
going back to the early nineteenth century have followed that rule. See, e.g., Ex
parte Scott, 9 B. & C. 446, 109 Eng. Rep. 166 (K.B. 1829); Ex parte Elliott, [1949]
1 All E.R. 373 (K.B.). The United States Supreme Court so held in the leading case
of Ker v. Illinois, 119 U.S. 436 (1886). More recently the Supreme Court of France
so held in In Re Argoud, [1964] Bull.Crim. 420, [1965] Annuaire Francais 935, 45
Intl L. Rep. 90 (Cass.Crim. 4 June, 1964).
This principle, often referred to as male captus, bene detentus (wrongly captured,
properly detained), has long been followed in the United States, where the general rule is that a
criminal defendant cannot defeat personal jurisdiction by asserting the illegality of the
procurement of his presence.37
It is important to emphasize, however, that even if breach of the CIL rule cannot be
judicially enforced, it is hardly costless, or something a nation can do without regard to any
possible ramifications. In fact it is very rare for a state, in lieu of extradition, to seize a suspect
from the territory of a nonconsenting state for purposes of putting the defendant on trial in the
abducting state. Such cases are very much the exception, not the ruleand for good reason. In
his 1989 congressional testimony, Legal Adviser Sofaer stressed that even extraterritorial arrests
that may be lawful under CIL because of a valid claim of self-defense nevertheless entail grave

37

United States v. Darby, 744 F.2d 1508, 1530 (11th Cir. 1984). See, e.g., Frisbie v. Collins, 342 U.S. 519, 522 (1952)
(due process did not require Michigan criminal court to reject jurisdiction where defendant had allegedly been
abducted by Michigan officials from Illinois in violation of Illinois and federal law); United States v. Crews, 445 U.S.
463, 474 (1980) (An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a
defense to a valid conviction. Respondent himself is not a suppressible fruit and the illegality of his detention
cannot deprive the Government of the opportunity to prove his guilt.); Gerstein v. Pugh, 420 U.S. 103, 119 (1975)
(adhering to the established rule that illegal arrest or detention does not void a subsequent conviction).
The Supreme Court has stated in dicta that we may some day be presented with a situation in which the
conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government
from invoking judicial processes to obtain a conviction. United States v. Russell, 411 U.S. 423, 431-32 (1973). And
in one case, a court of appeals held that the trial court might have to divest itself of personal jurisdiction over a criminal
defendant who had been kidnapped abroad, on the ground that due processprotects the accused against pretrial
illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on
its part. United States v. Toscanino, 500 F.2d 267, 275 (2d Cir. 1974). (On remand, however, the trial court
determined that the evidence did not show participation by United States officials in abduction or torture of defendant
so as to require dismissal of drug charges on jurisdictional grounds. United States v. Toscanino, 398 F.Supp. 916
(E.D.N.Y. 1975).) Courts of appeals have subsequently agreed that the precedential effect of Toscaninos holding
should be, at most, limited to cases in which the governments conduct was as outrageous as in Toscanino itself, where
the defendant was kidnapped, beaten and tortured by his captors. See, e.g., United States ex rel. Lujan v. Gengler, 510
F.2d 62, 65 (2d Cir. 1975).

17

potential implications for US personnel, for the United States, and for our relations with other
States. Here is Sofaers account of some of these grave potential implications:
The actual implications of a nonconsensual arrest in foreign territory may vary with
such factors as the seriousness of the offense for which the apprehended person is
arrested; the citizenship of the offender; whether the foreign government itself had
tried to bring the offenders to justice or would have consented to the apprehension
had it been asked; and the general tenor of bilateral relations with the United States.
However, any proposal for unilateral action would need to be reviewed from the
standpoint of a variety of potential policy implications.
First, such operations create substantial risks to the U.S. agents involved. Actions
involving arrests by U.S. officials on foreign territory require plans to get those
officials into the foreign State, to protect those officials while in the foreign State,
to remove the officials with the person arrested from that State, and finally to bring
them safely back to United States territory. While the officials involved might
include FBI agents seeking to make an arrest, such operations may also require the
use of a wide range of U.S. assets and personnel.
Apart from being killed in action, U.S. agents involved in such operations risk
apprehension and punishment for their actions. Our agents would not normally
enjoy immunity from prosecution or civil suit in the foreign country involved for
any violations of local law which occur.* (In 1952, the Soviets abducted Dr. Walter
Linse from the U.S. sector of Berlin to the Soviet sector, where he was tried and
convicted by a Soviet Tribunal. Two of Linses abductors were subsequently
apprehended in West Berlin and sentenced for kidnapping.)
Moreover, many States will not accord POW status to military personnel
apprehended in support of an unconsented law enforcement action. The United
States could also face requests from the foreign country for extradition of the
agents. Obviously the United States would not extradite its agents for carrying out
[Editors Note: Sofaer here was referring to the fact that, regardless of whether it violates CIL, such an extraterritorial
arrest will almost invariably violate the domestic criminal law (e.g., the kidnapping statute) of the state in which it
occurs. So, for example, Italian authorities have charged that at least 23 Americans were complicit in the February
2003 abduction of Assan Osama Nasr (aka Abu Omar) from a Milan street and the rendering of Abu Omar to his
native Egypt, where he was tortured. Italian authorities secured arrest warrants for seven Italians and 26 Americans,
most of whom were CIA employees and one of whom was an Air Force commander. See Tracy Wilkinson, Warrants
for 3 CIA Officers Issued in Imams Abduction, L.A. TIMES, July 6, 2006, at A4. None of the Americans returned to
Italy to face the charges, and they are considered fugitives in Italy. When efforts by Italian prosecutors to extradite
them were unsuccessful, the Italian court commenced a trial in absentia against the U.S. defendants. On November
4, 2009, an Italian judge convicted all 23 of kidnapping. The judge sentenced Robert Seldon Lady, the former CIA
base chief in Milan, to eight years and sentenced the 22 other Americans, including an Air Force colonel and 21 CIA
operatives, to five years imprisonment. See Rachel Donadio, Italy Convicts 23 Americans for C.I.A. Renditions, N.Y.
TIMES, Nov. 5, 2009, at A1.
*

This threat of criminal prosecution of the abductors may even be present where government officials provided
some form of consent for the abduction, especially where, as in Italy, the prosecutors act independently of the chief
executive and the intelligence services.]

18

an authorized mission, but our failure to do so could lead the foreign country to
cease extradition cooperation with us. Moreover, our agents would be vulnerable
to extradition from third countries they visit.
Beyond the risks to our agents, the possibility also exists of suits against the United
States in the foreign countrys courts for the illegal actions taken in that country.
...
An unconsented, extraterritorial arrest would inevitably have an adverse impact on
our bilateral relations with the country in which we act. Less obviously, such
arrests could also greatly reduce law enforcement cooperation with that or other
countries. The United States has attached substantial importance over the past
decade to improving bilateral and multilateral law enforcement cooperation. For
many countries, these agreements reflect the commitment of the United States to
confine itself to cooperative measures, rather than unilateral action, in the pursuit
of U.S. law enforcement objectives.
If the United States disregards these agreed law enforcement norms and
mechanisms, and acts unilaterally, we must be prepared for States to decline to
cooperate under these arrangements or to denounce them. Foreign States have
reacted adversely to extraterritorial US laws, even when those laws involve
enforcement action taken only in the United States. The breadth of our discovery
practices and antitrust laws have led some States to pass blocking and secrecy
statutes that preclude cooperation with the United States. Their reaction to
unconsented extraterritorial arrests could be more extreme.
Finally, we need to consider the fact that our legal position may be seized upon by
other nations to engage in irresponsible conduct against our interests. Reciprocity
is at the heart of international law; all nations need to take into account the reactions
of other nations to conduct which departs from accepted norms.38
Earlier testimony by Sofaer was even more pointed with respect to the final concern he
raised in that 1989 statementnamely, the establishment of a precedent that others might follow
to the detriment of the United States: Can you imagine us going into Paris and seizing some
person we regard as a terrorist? [H]ow would we feel if some foreign nationlet us take the
United Kingdomcame over here and seized some terrorist suspect in New York City, or Boston,
or Philadelphia,because we [had] refused through the normal channels of international, legal
communications, to extradite that individual?39
Similarly, in a major speech in May 2013, President Obama stressed that the United States
will engage in [c]apture operations only against suspects who may lawfully be captured or
38

Sofaer Prepared Statement, in FBI Authority to Seize Suspects Abroad, supra note 19, at 38-41.

39

Bill To Authorize Prosecution of Terrorists and Others Who Attack U.S. Government Employees and Citizens
Abroad: Hearing before the Subcomm. on Security and Terrorism of the Senate Comm. on the Judiciary, 99th
Cong., 1st Sess. 63 (1985) (testimony of Legal Adviser Sofaer).

19

otherwise taken into custody by the United States and only when the operation can be conducted
in accordance with all applicable law and consistent with our obligations to other sovereign
states.40 The Obama Administration subsequently did engage in some capture operations
overseas in order to bring suspects to criminal trial. Although such operations might have
complied with international law, they sometimes involved circumstances in which the international
law justification was not immediately apparent or articulated--such as in the al-Liby abduction
discussed supra at __.

2.

U.S. Domestic Law

The answer to the international law question does not, in and of itself, determine what the
President can lawfully do in this situation. U.S. domestic law is relevant, as well. For example,
even if an extraterritorial arrest of Martin or Hunter by the FBI would not violate international law,
the Bureau can only make the arrest if it has some authority to do so under U.S. law, such as
pursuant to a statute. Conversely, if such an arrest would violate CIL, that does not necessarily
mean the President is powerless to order the arrest: It is well-established, for example, that
Congress has the constitutional authority to authorize the United States to violate international law.
Such a violation does not make the conduct lawful for international purposesto the contrary, as
explained above, in such a case the United States would risk whatever the possible sanctions and
costs might be under international law and in the nations diplomatic relations with other states.
But if the political branches choose to accept those consequences in the international sphere, the
Constitution generally does not disable them from undertaking the action in question.
Two formal, published opinions of the Department of Justice Office of Legal Counsel
(OLC) speak directly to the question of the domestic law basis for such an FBI extraterritorial
arrest. As part of your Thursday discussions, you will have to decide whether the President
should follow the more restrictive advice of the earlier, 1980 OLC opinion or the more
permissive advice contained in the 1989 OLC opinion (or some combination).
First, in 1980 OLC issued an opinion that the FBI had no domestic law authority to abduct
a fugitive residing in a foreign state when those actions were contrary to customary international
law.41 Implicitly relying upon the Charming Betsy canon that statutes are to be construed where
possible to be consistent with international law, OLC concluded that the general statute authorizing
the FBI to investigate and arrest individuals for violations of U.S. law does not confer authority to
arrest individuals in contravention of CIL:
We have on prior occasions counseled that the FBI has lawful authority under
United States law to conduct investigations in a foreign country provided those
investigations relate to a matter within the statutory jurisdiction of the FBI. While
no statute explicitly authorizes the FBI to conduct investigations outside of the
United States, 28 U.S.C. 533(1) contains no geographical restrictions and its
general authorizationto detect and prosecute crimes against the United States
40

Remarks by the President at the National Defense University (Washington, D.C., May 23, 2013),
http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university.
41
Extraterritorial Apprehension by the Federal Bureau of Investigation, 4B OP. OFF. LEGAL COUNSEL 543 (1980).

20

would appear to be broad enough to sanction activity toward this end no matter
where it was undertaken.
We think any argument that 533 gives the FBI authority to make forcible arrests
anywhere in the world is at best tenuous; the sounder interpretation is that its
authority is limited, like that of the United States generally, by the sovereignty of
foreign nations.
A conventional statutory construction rule regarding the scope of an officials
authority states that where a statute imposes a duty, it authorizes by implication all
reasonable and necessary means to effectuate such duty. Given the targets fugitive
status and the inadequacy of extradition, it can be forcefully argued that [a
hypothetical proposed] operation [against such a fugitive target] is necessary if the
FBI is to carry out its law enforcement mission under 533. However, the
reasonableness of the operation is questionable if it violates international law or
United States law. All methods of rendition outside the traditional extradition
mechanism have received substantial criticism from international law specialists
and in academic journals. The tenor of these remarks is that such extraordinary
means of apprehension undermine international order and breed disrespect for the
traditional means of fostering cooperation and arbitrating disputes among nations.
Judges in abduction cases have expressed concern that such extraordinary
apprehensions denigrate the rule of law in the name of upholding it. We think that
concern, when coupled with a U.S. or international law violation, may well lead
courts to conclude that the activity lies beyond the jurisdiction of the FBI.
[This] line[] of analysis suggest[s] that in the absence of asylum state consent, the
FBI is acting outside the bounds of its statutory authority when it makes an
apprehension of the type proposed herebecause 533 could not contemplate a
violation of international law.
In 1989, however, OLC issued another opinion, excerpted below, that overruled the
conclusions in its 1980 opinion. The 1989 OLC opinion reasoned that the Charming Betsy canon
should not apply, and that Congress therefore should be understood to have authorized the Bureau
to make arrests in violation of CIL. Moreover, the opinion concluded that even in the absence of
such statutory authority, the President would possess constitutional authority to order an arrest,
notwithstanding that it would violate CIL:
Authority of the Federal Bureau of Investigation to Override International Law in
Extraterritorial Law Enforcement Activities
13 OP. OFF. LEGAL COUNSEL 163 (1989)
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 of United States law even if those investigations and arrests are
not consistent with international law.
21

The 1980 Opinion addressed the legal implications of a proposed operation 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 investigations, contains no explicit geographical restrictions. It also refers
to a previous opinion issued by this Office that concluded that the statutes 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. The
1980 Opinion asserts, however, that customary and other international law limits the reach
of section 533(1). Under customary international law, as viewed by the 1980 Opinion, it
is considered an invasion of sovereignty for one country to carry out law enforcement
activities within another country without that countrys consent. Thus, the Opinion
concludes that section 533(1) authorizes extraterritorial apprehension of a fugitive only
where the apprehension is approved by the asylum state.
[T]he [1980] Opinion implicitly relies on the principle of statutory construction 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 of 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 of international law. Thus, the Opinion concludes
that without asylum state consent, the FBI is acting outside the bounds of its statutory
authority when it makes an apprehension of the type proposed hereeither because 533
could not contemplate a violation of international law or because the powers of the FBI are
delimited by those of the enabling sovereign.
A. The Scope of the FBIs Statutory Authority
The general investigative authority of 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 of the
Department of 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 appointment
of the officials for the purposes indicated carries with it the authority necessary to perform
their duties. H.R. Rep. No. 901, 89th Cong., 1st Sess. 190 (1965).
The FBIs arrest authority derives from 18 U.S.C. 3052, which provides:
The Director, Associate Director, Assistant to the Director, Assistant Directors,
inspectors, and agents of the Federal Bureau of Investigation of the Department of
Justice may carry firearms, serve warrants and subpoenas issued under the authority
of the United States and make arrests without warrant for any offense against the
22

United States committed in their presence, or for any felony cognizable under the
laws of the United States if they have reasonable grounds to believe that the person
to be arrested has committed or is committing such felony.
We believe, consistent with earlier opinions of this Office, that sections 533(1) and 3052
authorize extraterritorial investigations and arrests. Neither statute by its terms limits the
FBIs authority to operations conducted within the United States.
B. The Effect of Customary International Law on the FBIs Extraterritorial Powers
It is well established that both political branchesthe Congress and the Executivehave,
within their respective spheres, the authority to override customary international law.
Indeed, this inherent sovereign power has been recognized since the earliest days of the
Republic.
The understanding that the political branches have the power under the Constitution to
exercise the sovereigns 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 of 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 constitutional 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 of that
agency), cert. denied, 362 U.S. 904 (1960); The Over the Top, 5 F.2d 838, 842 (D. Conn.
1925) (stating that [i]nternational practice is law only in so far as we adopt it, and like all
common or statute law it bends to the will of the Congress). Leading commentators also
agree that the United States, acting through its political branches, has the prerogative to
take action in disregard of international law.* Indeed, the sovereigns authority to override
customary international law necessarily follows from the nature of international law itself.
As Professor Henkin has noted, the Constitution does not forbid the President (or the Congress) to violate
international law, and the courts will give effect to acts within the constitutional powers of the political branches
without regard to international law. LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 221-22 (1972). The
Restatement also expressly maintains that Congress by subsequent enactment may supersede a rule of international
law or international agreement. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
115(1)(b) (1987). The reporters notes also agree that [t]here is authority for the view that the President has the
power, when acting within his constitutional authority, to disregard a rule of international law or an agreement of the
United States. Id. 15(1)(b) note 3. While the Restatement does not explicitly address whether the President or his
delegate may violate international law when acting pursuant to statutory rather than constitutional authority, this
proposition appears to be a direct corollary to the Restatements conclusion with respect to legislative authority. If
Congress has the authority to enact a statute contrary to international law, it may also enact a statute that delegates to
the Executive authority that can be exercised contrary to international law. Thus, we believe that the Restatement
substantially agrees with our view that the political branches, under the authority of either constitutional or statutory
domestic law, legally may act in a manner that is inconsistent with international law.
*

23

Customary international law is not static: it evolves through a dynamic process of state
custom and practice. States ultimately adhere to a norm of practice because they determine
that upholding the norm best serves their long-run interests and because violation of the
norm may subject the nation to public obloquy or expose it to retaliatory violations.
States necessarily 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.
If the United States is to participate in the evolution of international law, the Executive
must have the power to act inconsistently with international law where necessary. It is
principally the President, sole organ of the United States in its international relations, who
is responsible for the behavior of the United States in regard to international law, and who
participates on her 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 of sovereignty and an integral part of the Presidents foreign affairs power.
Indeed, the absence of such authority in the Executive would profoundly and uniquely
disable the United Statesrendering the nation a passive bystander, bound to follow
practices dictated by other nations, yet powerless to play a role in shaping those practices.**
Thus, we think it clear that, contrary to the 1980 Opinions assertions, [b]oth the
Congress and the President, acting within their respective spheres, retain the authority to
override any such limitations imposed by customary international law.
2. Effect on the FBIs 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 construed as limited by customary
international law. The 1980 Opinion notes that a conventional rule of statutory
construction states that where a statute prescribes a duty, by implication it authorizes all
reasonable and necessary means to effectuate that duty. 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. In substance, though not explicitly, the 1980 Opinion relies on the canon
of statutory interpretationenunciated in Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64, 118 (1804)that a statute should be construed when possible so as not to
conflict with international law. We believe this line of analysis is wholly inapposite.
First, this canon does not apply to the kind of 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 creating the FBI and conferring on it broad investigative
**

[S]ome unilateral actions by the United States, though inconsistent with prior international practice, may constitute
justifiable efforts by the United States to shape the content of international norms. Such unilateral actions may be
legitimate means by which the United States signals its rejection of a putative norm or seeks to gain acceptance for an
alternative norm.

24

and arrest authority, Congress has created an agency through which the President carries
out his constitutionally assigned law enforcement functions. Such general enabling
statutes, in the absence of an explicit restriction, must be read as conferring on the agency
a scope of authority commensurate with that of the Executive. Because, as part of 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 Presidents
instrumentality the authority to act in contravention of international law when directed to
do so. Unless Congress places explicit limitations on the FBIs investigative and arrest
powers, it must be presumed that Congress did not intend to derogate from Presidential
authority by limiting those statutory powers.
In contrast, the 1980 Opinion reverses the presumptions of our constitutional system. The
Opinion imputes to Congress an intent to make the scope of 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 of United States law, according to standards that are outside
the direct control of 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 of
delegated statutory authority when Congress has not spoken).
In enacting sections 533(1) and 3052, Congress was legislating against the background of
the well-recognized principle that international law is part of the law of the United States
only insofar as it has not been overridden by actions of the political branches. In The
Paquete Habana, Justice Gray stated:
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate 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
executive or legislative act or judicial decision, resort must be had to the
customs and usages of 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 of war where such vessels were
exempt by the general consent of civilized nations from capture, andno act of Congress
or order of 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

25

who had arrived as part of 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 of authority to the Attorney
General, but did not specifically authorize indefinite detention. With respect to one group
of the Mariel detainees, the court concluded that there was insufficient evidence of an
express congressional intention to override international law. Id. at 1453-54. The court
found, however, that the Attorney Generals decision to incarcerate them indefinitely
constituted a controlling executive act of 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 of an affirmative decision by
Congress that international law may be violated.
In sum, then, we conclude that the FBI has authority under sections 533(1) and 3052 to
carry 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 Presidents authority
to override customary international law, it must be presumed that Congress granted the FBI
commensurate statutory authority.
C. The Presidents Constitutional Power to Authorize Actions Inconsistent with Customary
International Law
We believe that the 1980 Opinion also erred because it failed to consider the Presidents
inherent constitutional power to authorize law enforcement activities. Pursuant to the
constitutional command to take Care that the laws be faithfully executed, the President
has the power to authorize agents of the executive branch to engage in law enforcement
activities in addition to those provided by statute.
Accordingly, we believe that even if sections 533(1) and 3052 are construed 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, this constitutional authority carries with it the
power to override customary international law. Thus, Executive agents, when
appropriately directed pursuant to the Presidents constitutional law enforcement authority,
may lawfully carry on investigations and make arrests that contravene customary
international law.
E. The Presidents 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 Presidents statutory or constitutionally based
26

Executive power to override customary 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 of whether the authority is
viewed as derived from statute or from the Presidents inherent constitutional authority.
Section 533(1) designates the Attorney General as the responsible executive branch
official. Thus, all enforcement action authorized pursuant to this statute, including
enforcement action that departs from customary or other international law, may be
undertaken by the Attorney General. The Garcia-Mir decision confirmed this conclusion
by holding 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.
Thus, we believe that the Attorney General has the power to authorize departures from
customary or other international law in the course of 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 Garcia-Mir 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 activity that presents a
significant possibility of departing from customary or other international law be approved
directly by the President or the Attorney General.

NOTES AND QUESTIONS ON OLC OPINIONS ON FOREIGN ABDUCTIONS

1.
Students will have to decide whether to follow the advice of the 1980 OLC opinion
or that in the 1989 OLC opinion. Which do you find more persuasive? How should you choose
between them? To what extent should you take into account the Presidents national security
objectives when interpreting what the law allowsespecially where, as here, the courts are
unlikely to resolve the question?
2.
The 1989 OLC Opinion asserts that even if the FBI had no statutory authority to
make extraterritorial arrests in violation of CIL, the President has the constitutional authority to
direct the Bureau to act in violation of customary law. This conclusion is predicated on the
opinions assertion that [i]t is well established that both political branchesthe Congress and the
Executivehave, within their respective spheres, the authority to override customary international
law.42 That is undoubtedly the modern understanding of Congress power. But do you think that
42

Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law
Enforcement Activities, 13 OP. OFF. LEGAL COUNSEL 163 (1989).

27

the OLC opinion offers persuasive authority to demonstrate that it is also well established that
the President has such a constitutional power to act in violation of international law, without any
statutory authority to do so?
3.
The 1989 OLC opinion does not attempt to explain whether its conclusion about
the Presidents power is consistent with the constitutional command that the President shall take
Care that the Laws be faithfully executed. Does the Take Care Clauses reference to the Laws
encompass CILin which case the President would appear to be constitutionally obliged to honor
CIL, at least in the absence of statutory authority to the contrary? The courts have never
definitively answered this question, and there is a substantial modern literature debating whether
the President is constitutionally bound to comply with customary international law generally.43
Notably, however, in the Washington Administration, Hamilton and Madison appeared to agree
that the Presidents constitutional duty extended to the law of nations.44

D.

OTHER OPTIONS?

If the ECtHR bars extradition, and the President cannot or does not direct the FBI
to abduct Hunter and/or Martin, are there other means that might be employed to secure the return
of wanted fugitives? For example, what if U.S. law enforcement officials were to use some ruse
or trickery to lure Hunter and Martin to leave Russia and France, respectively, so they could be
captured in some neutral location and returned for prosecution in the United States? This practice
is called luring and was used, for example, when the FBI lured the leader of the plot to hijack a
Royal Jordanian Airlines flight in 1985, Fawaz Yunis, from Cyprus to a yacht. When that yacht
reached international waters, Yunis was arrested and eventually returned to the United States to
stand trial for conspiracy, hostage taking, aircraft damage, and aircraft piracy. 45

43

See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A
Critique of the Modern Position, 110 HARV. L. REV. 815, 844-46 (1997); Michael J. Glennon, Raising The Paquete
Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 NW. U. L. REV. 321
(1985); Louis Henkin, The President and International Law, 80 AM. J. INTL L. 930 (1986); Jordan J. Paust, The
President Is Bound by International Law, 81 AM. J. INTL L. 377 (1987); Michael D. Ramsey, Torturing Executive
Power, 93 GEO. L.J. 1213, 1245-51 (2005).
44

See Alexander Hamilton, Pacificus No. 1, in 15 The Papers of Alexander Hamilton 40 (Harold C. Syrett & Jacob
E. Cooke eds., Columbia Univ. Press 1969) (1793) (The Executive is charged with the execution of all laws, the laws
of Nations as well as the municipal law.); id. at 34 (referring to the laws of the land (of which the Law of Nations
is a part)); James Madison, Helvidius No. 2 (1793), in 15 The Papers of James Madison 80, 86 (Thomas A. Mason,
Robert A. Rutland & Jeanne K. Sisson eds., 1985) ([T]he executive is bound faithfully to execute the laws of
neutrality... as of all other laws internal and external, by the nature of its trust and the sanction of its oath.). See also
1 OP. ATTY GEN. 26, 27 (1792) (Attorney General Edmund Randolph) (explaining that the law of nations, although
not specially adopted by the Constitution or any municipal act, is essentially a part of the law of the land).
45

See United States v. Yunis, 859 F.2d 953 (D.C. Cir. 1988).

28

Could one rely upon international law in objecting to luring? Although some nations
may, in some circumstances at least, feel that their sovereignty is as invaded by fraud as by force,
it appears that luring does not violate international law.46
Can you think of other possible alternatives to recommend to the President?

E.

NATIONAL SECURITY DECISION-MAKING

EXECUTIVE BRANCH
1.

IN

THE

UNITED STATES

Student Roles in the U.S. Executive Branch

As discussed above, you will be working in teams of two to three students, each playing a role
within the U.S. Executive Branch. In an actual national security setting, many more Executive
Branch actors would ordinarily be involved in decision-making. But these eight actors are often
among the principal players when the President is faced with a difficult question at the intersection
of law, policy, and security, and they represent most of the interests and perspectives found in the
larger group (along with the military). The eight roles are:
The Presidents National Security Advisor
The Legal Adviser to the National Security Council/Deputy Counsel to the President
The Secretary of State
The Department of State Legal Adviser
The Director of National Intelligence
The Attorney General
The Director of the Federal Bureau of Investigation, Department of Justice (also
representing the U.S. Attorney for the Northern District of Illinois)
8. The Assistant Attorney General for the Office of Legal Counsel, Department of Justice
1.
2.
3.
4.
5.
6.
7.

The PresidentPlayed by the Professor

Article II of the Constitution assigns the President the duty to take care that the laws be faithfully
executed. Article VI also requires him or her to solemnly swear or affirm that he or she will
faithfully execute the Office of the President of the United States, and will to the best of [his]
Ability, preserve, protect and defend the Constitution of the United States. (It is often said that
the Presidents primary duty is to protect the Nation and its people. And that may be so. But the
Constitution does not say it.)
The President does not personally make all national security decisions for the United States, let
alone all decisions about law enforcement and prosecution. But he or she typically would have
46

See, e.g., Prosecutor v. Mrksic, Radic, Sljivancanin & Dokmanovic, IT-95-13a-PT, Decision on the Motion for
Release by the Accused Slavko Dokmanovic, 57-78 (Oct. 22, 1997) (ICTY rejecting the argument that luring
for purposes of apprehension and prosecution violates principles of international law or the sovereignty of the country
from which the individual was enticed to leave); Matthias Hartwig, The German Federal Constitutional Court and
the Extradition of Alleged Terrorists to the United States, 5 GERMAN L.J. 185 (2004).

29

the final say on a matter of such importance and sensitivity as the abduction question you are
currently considering. Accordingly, for purposes of our Week One exercise, you should work
on the assumption that President Treanor will make the final decisions on behalf of the
United States. Your professor(s) will be playing the role of President Treanor. You should
assume, however, that the President will be inclined to follow the advice that you collectively
offer, particularly if you can reach a consensus view.
You should also assume that all of you were appointed by the President, and are generally loyal
and sympathetic to him and to his policies. This does not mean you will always agree with the
President about a particular decision. Moreover, each actor will be strongly influenced by the
interests and objectives of your respective agencies, and presumably will reflect those perspectives
in the interagency debate. But you should assume that all of you would be forthright and candid
with the President, and that you are sincerely endeavoring to help him exercise all of his duties
and obligations, consistent with your own oaths to support the Constitution.
See the beginning of this packet for further information about what President Treanor and his
predecessors have said about the rule of law, international law obligations, and national security.
1. The National Security Advisor
A national security decision such as the one you are confronted with in our exercise is typically
coordinated by the National Security Council, which brings together the relevant actors from all
affected agencies, and components of the White House, to provide advice to the President with
respect to the integration of domestic, foreign, and military policies relating to the national
security. The NSC does not merely coordinate the views of the agencies, however. Importantly,
it also brings to bear the Presidents own strategies and policies for the conduct of foreign and
military affairs. The President has a breadth of responsibilities and perspectives that are not likely
to be shared by any one single agency.
The NSC is superintended by the Presidents National Security Advisor, who is appointed by the
President (but not confirmed by the Senate). The National Security Advisor has no constitutional
or statutory authorities of her own; but because she ordinarily speaks for the President, she has
considerable influence within the Administration on national security matters.
The Security Council consists of the President, the Vice President, the Secretary of State, the
Secretary of Defense, the Secretary of Energy, the Secretary of the Treasury, the Attorney General,
the Secretary of Homeland Security, the Representative of the United States to the United Nations,
the Chief of Staff to the President, and the National Security Advisor. The Director of National
Intelligence and the Chairman of the Joint Chiefs of Staff also attend NSC meetings as statutory
advisors. Not all of these actors can be represented in our exercise, of course. For the purposes
of the exercise, students representing all eight roles may attend NSC meetings, and the National
Security Advisor may represent the concerns of any principal not represented in the student group,
if you decide they are relevant.
2. The Legal Adviser to the National Security Council/Deputy Counsel to the President

30

The position of Legal Adviser to the NSC was created during the Reagan Administration as a
response to the Iran/Contra Affair. The Legal Adviser reports directly to the National Security
Advisor and is responsible for advising the President and the National Security Advisor on legal
issues relevant to national security. In recent years the NSC Legal Adviser has also been a Deputy
Counsel to the President.
The NSC Legal Adviser chairs the interagency lawyers group, which is regularly convened to
discuss and evaluate the legal parameters of various policy options that have been proposed (or
that the attorneys might formulate themselves, as alternatives, if they determine that the proposed
options are unlawful). The NSC Legal Adviser thus coordinates foreign legal policy among the
State, Justice and Defense Departments, and the intelligence agencies. She controls the
interagency process with regard to questions of international law and, where necessary, referees
turf wars when agencies are at odds on legal questions involving national security. The Legal
Adviser endeavors to develop consensus legal advice for the President that represents the view of
the various Departments and Agencies in the lawyers group. For some issues, other attorneys will
have the final word, short of the Presidentusually the Attorney General and head of OLC (and
sometimes the State Department Legal Adviser, on certain questions of treaty interpretation and
international law).

3. and 4. The Secretary of State and the Department of State Legal Adviser
The Secretary of State is the Nations chief diplomat. She is responsible for the entire, complex
course of U.S. foreign relations. The State Department therefore traditionally has a strong interest
in the development of, and international compliance with, treaty obligations and international law.
It is also the Secretary of States responsibility to ensure the safety of U.S. employees and nationals
abroad.
The Legal Adviser is the Secretarys chief lawyer, and is also part of the NSC lawyers group
on many issues. The Legal Advisers Office, colloquially known as L, advises on all legal issues,
domestic and international, arising in the course of the Departments work. L also typically
plays a broader role in the interagency process, particularly on matters involving interpretation of
treaties and international law, in which L has extensive expertise (typically more than its
counterpart at DOJ, the Office of Legal Counsel). The first Legal Adviser for President Obama,
Harold Koh, has spoken repeatedly of L acting not only in an advisory role, offering opinions
on the wisdom, legality and morality of proposed international actions, but also as the conscience
for the U.S. Government with regard to international law. Since international law itself can be
fluid, and sometimes develops though actual practice of states (custom), the Legal Adviser must
inculcate a sophisticated, nuanced view of the law. One former Legal Adviser has explained that
L has developed over the years a pragmatic or functional approach to international lawa
tendency to view that law less as a body of fixed and unchangeable rules than as a flexible tool for
use in forging real solutions to practical problems of international order. L also takes part on
behalf of the United States in international negotiations and conferences relating to legal issues.
5. The Director of National Intelligence

31

The DNI is the coordinator and head of the U.S. intelligence community (IC), supervising a farflung array of intelligence agencies, including the Central Intelligence Agency and the National
Security Agency. (The NSA is principally responsible for foreign electronic surveillance.) For
purposes of our exercise, you can assume that students playing the role of DNI represent the
interests of the entire IC, including the CIA, NSA, etc. The principal objective of these agencies,
of course, is to be able to gather the intelligence that the President and the Administration need to
effectively advance the Nations foreign policy and national security objectives. That is to say,
the IC is forward-looking, less concerned with law enforcement efforts to deal with past crimes
than with the ability to predict, influence and (where necessary) prevent future actions deleterious
to the United States. The DNI has a General Counsel and the various intelligence agencies each
have a general counsel of their own. The DNI and CIA counsels typically sit on the NSCs
lawyers group. For purposes of our exercise, students acting as DNI can assume they articulate
the legal views of the counsel within the ICthat is to say, those students can speak for the IC on
matters of both law and policy.
6., 7., and 8. The Attorney General, the Director of the FBI, and the AAG for OLC
The other three roles are officers within the Department of Justice.
The Attorney General is the head of the Department. The AG has many duties, two of which are
most important for our exercise in Week Onenamely, the duty to represent the interests of the
United States in litigation, including in prosecutions for violations of federal law; and the duty,
prescribed in the first Judiciary Act of 1789, to give his advice and opinion upon questions of law
when required by the President of the United States. Roughly speaking, the other two DOJ
student roles in our exerciseof FBI Director and head of OLCreflect these two functions of
the AG, respectively. Both of those officers report to, and are supervised by, the Attorney General.
The AG must weigh both considerationslaw enforcement and the executives own interpretation
of and compliance with the lawas well as, e.g., national security and the Presidents preferred
policy objectives, in making decisions and in offering advice to the President. The Attorney
General typically gives great deference to the decisions of the FBI Director and AAG for OLC
indeed, the AG almost never overrules an OLC opinion of lawbut ultimately the decisions in
question are for the AG, subject to the direction and superintendence of the President himself.
You should also be aware that the President has traditionally been very wary of attempting to
influence the Department of Justices decisions on criminal prosecution, to ensure that such
decisions are made strictly on the law and the evidence, and are not influenced by political or other
extraneous considerations. For a prosecution of this importance, however, it would not be unusual
for the White House to be involved in the preliminary decision-making, at least at this early, preprosecution stage, where numerous other national security and diplomatic considerations are at
play. It would, however, be virtually unthinkable that the White House would urge the Department
of Justice to prosecute a case that the Department thinks is unwarranted, or not supported by the
evidence.
The FBI Director is principally responsible for federal law enforcement. In particular, the FBI
not only works to stop crimes from occurring, but also gathers the evidence that federal prosecutors
can then use to prosecute those alleged to have violated federal law. With respect to the FBIs
32

possible legal authorities to engage in the abductions in question, in particular, see supra page 20
et seq. The prosecutions of Martin and Hunter in this case would be conducted under the
supervision of the U.S. Attorney for the Northern District of Illinois, who would work closely with
the FBI in developing the case. The students representing the FBI Director should assume
that they represent federal law enforcement interests more broadly, including the interests
of the prosecutors. Please note that one important function of prosecutors is to make decisions,
usually of a highly discretionary nature, about what charges to bring, and what sentences to
recommend to the sentencing judge. This often gives prosecutors a great deal of leverage in plea
bargaining with defendants. Students should be aware that in the real world, prosecutors and
agents may have divergent interests and perspectives; but the students representing the FBI
Director can take into account the interests of the U.S. Attorney, tooas, of course, can the
students acting as Attorney General.
The Office of Legal Counsel (OLC), headed by the Assistant Attorney General for OLC, is a
small office of fewer than two dozen attorneys in the Department of Justice, whose basic mission
is to provide opinions of law to the President, the Attorney General and other officers in the
Executive Branch. Since about 1950, the AG has by regulation delegated his opinion-giving
authority to OLC. Students in this role should review David J. Barrons memorandum describing
its best practices, described infra page 35.
Before providing legal advice on a difficult legal question, OLC virtually always solicits the views
of agencies and others that have subject-matter expertise or a special interest in the question
presented, so that OLC, like a court, can have the benefit of the full array of legal arguments.
Obviously, our Week One exercise does not allow time for a thorough exchange of written views.
For purposes of our exercise, however, if the students representing OLC can consult with the other
students in the role group to obtain their views on the question, to the extent time permits.
OLC opinions are generally treated as controlling within the Executive Branch on questions of law
and therefore typically bind the actions of executive officials. For this reason, the White House
and agencies consider carefully a decision to seek advice from OLC. The Attorney General and,
ultimately, the President, have the authority to overrule OLC on legal questions, but this happens
very rarely. On questions of international law, OLC has traditionally worked very closely with
the Department of State Legal Adviser. It is rare that those two offices cannot reach consensus on
a legal question; but when they do, the final legal decision may have to be made by the President,
who has the ultimate constitutional responsibility to interpret the law for the Executive Branch and
take care to see that it is faithfully executed.

2.
Views on the Proper Role of Government Attorneys on Questions
Relating to National Security and Executive Authority
What is the proper role of attorneys in the Executive Branch, including those in OLC, when
asked to provide legal advice to the President and other Executive Branch officials on difficult
national security questions? This is a rich topic that has engendered an extensive literature in
recent years. Here are a few examples of the differing perspectives:

33

Eric Posner & Adrian Vermeule, A Torture Memo and Its Critics
WALL ST. J., July 6, 2004, at A22, available at
http://www.wsj.com/articles/SB108906730725255526
Recent weeks have seen a public furor over [an August 1, 2002] Justice Department memorandum
that attempted to define the legal term torture, as used in federal statutes and treaties, and that
pointed to constitutional questions that would arise if statutory prohibitions on torture conflict with
the presidents powers as commander in chief. An article in the New York Times quoted legal
academics who criticized the memorandums authors for professional incompetence, and for
violating longstanding norms of professional practice and integrity in the Justice Department's
Office of Legal Counsel (OLC). Neither charge is justified.
The academic critics have puffed up an intramural methodological disagreement among
constitutional lawyers into a test of professional competence. Although we disagree with some of
the memos conclusions, its arguments fall squarely within the OLCs longstanding jurisprudence,
stretching across many administrations of different parties, which emphasizes an expansive
reading of presidential power.
The academic critics say that the memorandum counsels an unduly narrow interpretation of
torture in federal law, and that it urges an overly sweeping conception of the commander-inchief power; the critics even complain of the memorandums failure to cite or emphasize specific
precedentsnotably the Youngstown decision of 1953, in which the Supreme Court rejected
Trumans attempt to seize domestic steel mills for the Korean war effort.
But the memorandums arguments are standard lawyerly fare, routine stuff.
***
The Justice Department memorandum came out of the OLC, whose jurisprudence has traditionally
been highly pro-executive. The office has, for example, a notoriously expansive view of the
presidents right to unilaterally send military forces to other countries in order to protect American
citizens and property, without a declaration of war by Congress. OLC opinions that justify Bill
Clintons intervention in Kosovo and George H.W. Bushs intervention in Somalia are no less onesided than the recent memo on interrogation. A Clinton-era opinion argued that a bill limiting the
presidents ability to place military forces under U.N. control would violate the presidents
commander-in- chief power.
Not everyone likes OLCs traditional jurisprudence, or its awkward role as both defender and
adviser of the executive branch; but former officials who claim that the OLCs function is solely
to supply disinterested advice, or that it serves as a conscience for the government, are
providing a sentimental, distorted and self-serving picture of a complex reality.
***
[W]hatever ones views on the use of torture on the battlefield, the memorandum is not
incompetent or abominable or any more one-sided than anything else that the Justice
Department has produced for its political masters.
34

Memorandum from David J. Barron, Acting Attorney General, Office of Legal Counsel, for
the Attorneys of the Office, Re: Best Practices for OLC Legal Advice and Written Opinions
July 16, 2010, available at http://www.justice.gov/olc/pdf/olc-legal-advice-opinions.pdf
By delegation, the Office of Legal Counsel (OLC) exercises the Attorney Generals authority
under the Judiciary Act of 1789 to provide the President and executive agencies with advice on
questions of law. OLCs core function, pursuant to the Attorney Generals delegation, is to provide
controlling advice to Executive Branch officials on questions of law that are centrally important
to the functioning of the Federal Government. In performing this function, OLC helps the
President fulfill his or her constitutional duties to preserve, protect, and defend the Constitution,
and to take Care that the Laws be faithfully executed. It is thus imperative that the Offices
advice be clear, accurate, thoroughly researched, and soundly reasoned. The value of OLC advice
depends upon the strength of its analysis. OLC must always give candid, independent, and
principled adviceeven when that advice is inconsistent with the aims of policymakers.
Certain fundamental principles guide all aspects of the Offices work. As noted above, OLCs
central function is to provide, pursuant to the Attorney Generals delegation, controlling legal
advice to Executive Branch officials in furtherance of the Presidents constitutional duties to
preserve, protect, and defend the Constitution, and to take Care that the Laws be faithfully
executed. To fulfill this function, OLC must provide advice based on its best understanding of
what the law requiresnot simply an advocates defense of the contemplated action or position
proposed by an agency or the Administration. Thus, in rendering legal advice, OLC seeks to
provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain the
Administrations or an agencys pursuit of desired practices or policy objectives. This practice is
critically important to the Offices effective performance of its assigned role, particularly because
it is frequently asked to opine on issues of first impression that are unlikely to be resolved by the
courtsa circumstance in which OLCs advice may effectively be the final word on the
controlling law.
OLCs analyses may appropriately reflect the fact that its responsibilities also include facilitating
the work of the Executive Branch and the objectives of the President, consistent with the law. As
a result, unlike a court, OLC will, where possible and appropriate, seek to recommend lawful
alternatives to Executive Branch proposals that it decides would be unlawful. Notwithstanding
this aspect of OLCs mission, however, its legal analyses should always be principled, forthright,
as thorough as time permits, and not designed merely to advance the policy preferences of the
President or other officials.
Jack M. Balkin, Our Legal and Political Culture
Balkinization, Dec. 30, 2005, available at http://balkin.blogspot.com/2005/12/our-legal-andpolitical-culture.html
The other day Marty [Lederman] was musing that it now seemed as if there was no legal
proposition, no matter how outlandish, that you couldn't get some prominent lawyer these days
to defend, whether it be that (1) waterboarding isnt torture, or (2) that Congress has given the
President carte blanche to engage in unregulated domestic spying or (3) that no statute can limit
35

the Presidents power if he asserts that he is acting as Commander-in-Chief. No legal argument,

it seems, is now beyond the pale. And the worry is that given that you can find a lawyer to
defend almost anything the Administration has done, the public throws up its hands. Lawyers
tell us that the latest outrages coming from the Administration are actually close legal questions,
on which well-trained legal minds can differ. So even if the Administration turns out to be
wrong, it was only doing what Executive lawyers should dopushing the envelope on behalf of
their clientthe Presidentin the war against terror.
***
Lawyers have always, to my knowledge, been willing to come up with clever and ingenious
arguments for the interests they represent, even (and especially) when the other side believes those
arguments to be spurious or to twist the law in ways contrary to its underlying spirit or purposes.
And lawyers have always been willing to assert that, far from twisting the law, it is they, and not
their opponents, who are being most true and faithful to the law. Put another way, we have all
known for many years that lawyers are rhetorical whores; their job is to confuse, obfuscate, and
make unjust and illegal things seem perfectly just and legal, or, if they cannot quite manage that
feat, to muddy up our convictions sufficiently that we conclude that it's a close case. There is
nothing new about this; lawyers have been implicated in the worst injustices in human history,
arguing heatedly for them all the way. They have used their considerable talents to defendor to
protect from legal sanctionhuman slavery, sweatshops, lynchings, and every possible evil that
human beings can inflict on each other; they have repeatedly done so in the name of justice and
the rule of law. In this sense, there is nothing unusual or distinctive about our present moment
from the perspective of legal culture.
Given that lawyers are whoresand I apologize in advance for the offense I may have given to
prostitutes by comparing them to lawyersthe question becomes, what restrains lawyers from
being the most shameless tools of interest, or power, or both? There are two answers. First,
lawyers craft is always hemmed in by larger social forces and by popular opinions about ethics
and morality, opinions which are not always articulated or articulable in precisely legal ways. One
important task that lawyers perform is to translate or channel these moral opinions into struggles
about the law. But this moral constraint has its own limits: If the moral opinions of a time are
deeply corrupt, the law is unlikely to be far better.
Second, lawyers have developed a professional ethos that is devoted to formalities and procedures,
and that professional ethos sometimes gets in the way of the most outrageous things that powerful
people want to do. But my experience has been that professional ethos often does not constraint
lawyers from serving unjust ends very much; at most, it forces them to articulate their defenses of
unjust things through legal formalities. And by exercising sufficient cleverness, they are almost
always able to do so. Indeed, the cleverer they are, the more the professional ethos of lawyers may
fail to constrain them.
Of the two constraints, I believe that the first is more important than the second. I dont think its
at all surprising that we can find lawyers today who will defend the legality of torture or the
Presidents plenary power to spy on American citizensor, to take Martys point, who will argue
that all things considered its a close legal case. I don't think its surprising because there are
36

people in the larger political culture who will happily argue for these practices on the merits. What
I am counting on is that, at the end of the day, the American public will recoil from both practices,
and that is why, at the end of the day, the legal arguments made by opponents of torture and
unauthorized domestic surveillance will prevail. Lest I be misunderstood, I do not mean to say
that law and legal doctrine counts for nothing, and that lawyers have no independent role to play
other than as political cheerleaders for one side or the other. Rather, I mean to say that the law
always needs help from other sources in political culture if it is to do its job appropriately. The
rule of law, I would insist, is not a purely legal or professional idealit is a political ideal that
demands that power be checked, circumscribed and made accountable in fair and publicly
knowable ways.
Marty Lederman, Chalk on the Spikes: What is the Proper Role of Executive Branch Lawyers,
Anyway?
Balkinization, July 4, 2006, available at http://balkin.blogspot.com/2006/07/chalk-on-spikeswhat-is-proper-role-of.html
Jack [Balkin]s post on lawyering raises some very interesting questions. Surely hes right that
lawyersreally good, respected lawyershave always been available to defend the indefensible.
(By indefensible here, I am not referring, as Jack principally is, only to that which is morally
indefensible, such as waterboarding; Im also referring to conduct that might be perfectly
acceptable from a policy perspective but that doesnt have a legal leg to stand on, such as the NSA
wiretapping program.)
***
But Id like to focus here on a more fundamental question that Jacks post raises but doesn't discuss
in detail: whether lawyersespecially government lawyersshould be so creative, at least in
cases (unlike torture or slavery) where the legal judgments are not in the service of moral evil.
Is doesnt equal ought, of course, and so the question arises: Is it acceptable for government
lawyers to (in Jacks words) push the envelope on behalf of their client, where they believe that
the policy being supported is morally defensible? And, if so, to what degree?
The question is much, much harder than most people thinkand its very different from the same
question as applied to lawyers in private practice. If a private client asks a lawyer to push the legal
envelope, client and lawyer both understand that theres a risk that the advice will turn out to be
wrong in the eyes of the authorities, with possible legal consequences for the client. If the lawyer
is any good, the advice will reflect such risks. In other words, the lawyers job is to tell the client
both what the best view of the law is, and what is at the outer bounds of legal arguments that
might (but probably wont) carry the day.
The Executive, however, is the prosecuting entity. Thus, when an OLC lawyer or the AG advises
that a course of conduct is lawful, she is not simply giving the President advice about possible
legal exposure; she is, instead, effectively determining what the law will be as a practical matter
she is sanctioning the conduct, and immunizing it against future prosecution by the Executive, at
least insofar as the advice is within the bounds of what the legal culture deems reasonable. (If
37

the advice is widely viewed as wrong, the Executive may pay a cost in its relations with Congress,
or the court of public opinion, or even in international courts or civil cases, where relevant. But
its inconceivable that the Executive would ever prosecute someone who reasonably relied on OLC
or AG advicein part because of serious due process concerns.)
Given this lawmaking function of DOJ advice, is the DOJ lawyer obliged to provide the best view
of the law, or is pushing the envelope, within the outer bounds of the reasonable, acceptable? I
start from the proposition that I hope all will share that it is the role of Executive lawyersthe AG
and OLC lawyers, in particularto assist the President in his constitutional obligation to faithfully
execute the law. OK, but how broad is the range of faithfulness, or fidelity? And faithful to . .
. what, exactly?
As a general matter, OLC attempts to give the President the best view of what the law allows,
where best is generally understood to mean the answer to which the governing legal doctrines
would most likely point (more or less akin to what a lower court does when it's trying to follow
the rules laid down by the Supreme Court). If that view means that the President cannot
undertake his preferred course of action, then in that case OLC has performed its proper roleits
really the only entity within the Executive branch that is in place to impose such legal limitsand
OLC ought then to work with the White House to see if there is some other, lawful way to
accomplish the Presidents ends, at least in part.
But lets be honestsuch a neutral expositor model does not invariably describe the advice that
OLC and DOJ give the President, especially in matters related to war and national security.
Historically there have been clear cases in which what the AG or OLC has done is to try to come
up with a justification for Executive conduct that lies at one extreme of the range of possible
reasonable legal answers, but that is fairly clearly not the best view of the law.
Perhaps the most notorious example was Attorney General Robert Jacksons opinion (prior to the
Lend-Lease Act) that existing statutes gave the President the authority to acquire from the British
Government rights for the establishment of naval and air bases in exchange for over-age destroyers
and obsolescent military material. See 39 Op. A.G. 484 (1940). This opinion was roundly (but
not uniformly) criticized as being an extremely tendentious, that is to say, mistaken, reading of the
relevant statutesbut obviously, Jackson was comfortable that it was within the bounds of what
the legal culture would allow, even if he did not think that it represented the best legal answer
to the important question that was posed to him.
Another, more modern example occurred in 1986, when Samuel Alito was one of the Deputy
Assistant Attorneys General at OLC. A statute required the Executive to give prior notice of covert
intelligence activities to eight members of Congress, and post-conduct notice to the intelligence
committees in a timely fashion. President Reagan did not give prior notice of the Iran-Contra
affair to anyone in Congress, and delayed the post-conduct disclosure on a completely
discretionary basis. OLC wrote an opinion concluding that this failure to provide notice satisfied
the statutory mandate, see 10 Op. O.L.C. 159what Professor Jeff Powell described as the
bizarre outcome . . . that a statute meant to limit the Presidents discretion places no practical limits
on that discretion. The President's Authority Over Foreign Affairs at 13 (2002). As Powell
rightly explains, the OLC opinion is an exercise in statutory construction only in the Pickwickian
38

sense that it assigns meanings to the words Congress enacted. If, as is generally assumed, the
purpose of statutory construction has something to do with identifying and applying what
presumable was the will of the legislating bodyhowever difficult that may be in practice and
even in theorythe opinion is a simple and indeed unembarrassed failure as a reading of section
501. (This is basically my view of DOJs current reading of FISA and the AUMFbut obviously
others disagree.)
The key word here is unembarrassed. OLC was more than willing to offer what was very plainly
not the best reading of the statute, but a reading that OLC thought was at the far edge of the
plausible and that least impinged on what OLC viewed as the Presidents constitutional
prerogatives. . . .
From everything I know, this is the model of legal advice that President Bush has expected of his
lawyers, including OLC lawyers, with respect to the war against Al Qaeda. In Dana Priests
remarkable story the other day about the aggressive legal interpretations in this Administration in
support of CIA covert action, theres this wonderful quotation from Deputy Director of National
Intelligence Michael Hayden about their approach to the law: Were going to live on the edge. .
. . My spikes will have chalk on them. . . . Were pretty aggressive within the law. As a
professional, I'm troubled if Im not using the full authority allowed by law.
This confirms what Ive read in several places and what Ive heard from numerous lawyers in the
Executive branch: What the White House has asked of them is not to provide the best, or most
objective, view of the law, but instead to read the law as aggressively as humanly possible so as to
give the President the broadest possible discretion in preventing another domestic attack: Dont
worry so much about exactly where the line isits ok to get chalk on your spikes. Lives are at
stake. This confirmation from a recent Newsweek story: The message to White House lawyers
from their commander in chief, recalls one who was deeply involved at the time, was clear enough:
find a way to exercise the full panoply of powers granted the president by Congress and the
Constitution. If that meant pushing the boundaries of the law, so be it.
They are completely unapologetic about this. And I dont think it is obviously the wrong
perspective to be using (even if it is very troubling if all the lawyers in the Executive Branch are
using this standard, and no one is advising the President of what the best view of the law is). Of
course, some of their legal advicethe August 2002 Torture Memo, in particularhas been far,
far outside even the most extreme bounds of whats reasonable: The chalk is but a distant memory
there. And Im not defending that. But I think it is a very hard question whether Executive branch
lawyers ought to push the envelope, within the bounds of what the legal culture views as
reasonable, in order to enhance presidential authority in matters of national security.
This much, however, should be clear: If the Executive Branch is going to adopt such extreme legal
views, it must do so publicly, in a way that allows for critique and democratic accountability. If it
is acting on idiosyncratic, and extreme, readings of the law, it is wrong to hide that fact from the
publicto pretend as if its business as usual. Justice Jacksons view of the legality of the
destroyers deal might have been wrong, but he and the President announced the sale to the
Congress and had the courage to provide the legal analysis supporting itthus giving Congress
and the public the opportunity to apply checks and balances.
39

The practice in this Administration has been the polar opposite. It is not acceptable to announce
repeatedly to the world that we dont torture, that we abide by all our treaty obligations, and that
we treat detainees humanelyonly to engage in secret waterboarding and hypothermia, based
on equally secret legal determinations that construe the words torture and humane in an
Orwellian fashion, that diminish treaty obligations down to nothing, and that assert a right of the
President to ignore all statutory limits.
Its not ok to give the world the impression that we are staying true to our 50-year-old tradition of
compliance with the minimum protections of Common Article 3 of the Geneva Conventions,
whilst secretly trampling all over those protections.
Its not proper to give the public and the Congress and the FISA Court the impression that the
Administration is in perfect compliance with FISA, all the while secretly approving a massive
surveillance program that flatly violates FISAand that is based on a secret conclusion that
Congress unknowingly approved such a program when it authorized the use of force against Al
Qaeda.
We can argue about the virtues, the propriety, of unorthodox readings of the law by the
Executiveof going right up to the line and getting chalk all over ones spikes. But even if
unorthodox, and pro-Executive, and aggressive, readings of the law are in some cases permissible,
what should be beyond the pale is acting in accord with a body of secret law.
David Luban, Testimony from What Went Wrong: Torture and the Office of Legal Counsel in
the Bush Administration: Hearing before the Subcomm. on Admin. Oversight and the Courts,
Senate Judiciary Comm., 111th Cong., 1st Sess.
May 13, 2009, available at
http://www.judiciary.senate.gov/imo/media/doc/luban_testimony_05_13_09.pdf
When a lawyer advises a client about what the law requires, there is one basic ethical obligation:
to tell it straight, without slanting or skewing. That can be a hard thing to do, if the legal answer
isnt the one the client wants. Very few lawyers ever enjoy saying no to a client who was hoping
for yes. But the professions ethical standard is clear: a legal adviser must use independent
judgment and give candid, unvarnished advice. In the words of the American Bar Association, a
lawyer should not be deterred from giving candid advice by the prospect that the advice will be
unpalatable to the client.47
That is the governing standard for all lawyers, in public practice or private. But it is doubly
important for lawyers in the Office of Legal Counsel. The mission of OLC is to give the President
advice to guide him in fulfilling an awesome constitutional obligation: to take care that the laws
are faithfully executed. Faithful execution means interpreting the law without stretching it and
without looking for loopholes. OLCs job is not to rubber-stamp administration policies, and it is
ABA Model Rules of Professional Conduct, Rule 2.1, cmt. 1. The rule itself states: In representing a client, a
lawyer shall exercise independent professional judgment and render candid advice. Model Rule 2.1.
47

40

not to provide legal cover for illegal actions.

No lawyers advice should do that. The rules of professional ethics forbid lawyers from counseling
or assisting clients in illegal conduct;48 they require competence;49 and they demand that lawyers
explain enough that the client can make an informed decision, which surely means explaining the
law as it is.50 Lawyers must not misrepresent the law, because lawyers are prohibited from all
conduct involving dishonesty, fraud, deceit or misrepresentation.51 These are standards that the
entire legal profession recognizes.
There is a common misperception that lawyers are always supposed to spin the law in favor of
their clients. That is simply not true. It is true that in a courtroom, lawyers are supposed to argue
for the interpretation of law that most favors their client. The lawyer on the other side argues the
opposite, and the judge who hears the strongest case from both sides can reach a better decision.
But matters are completely different when a lawyer is giving a client advice about what the law
means. Now there is nobody arguing the other side, and no judge to sort it out. Typically, the
lawyer-client communication is confidential, and thus the lawyer is the clients only channel of
advice about what the law requires. Not only is it important for the client to receive unvarnished
advice; it is important for society at large that clients know their legal obligations. The ABA
explains the value of lawyer-client confidentiality by pointing out its contribution to law
compliance: Almost without exception, clients come to lawyers in order to determine their rights
and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon
experience, lawyers know that almost all clients follow the advice given, and the law is upheld.52
The ABAs Model Code of Professional Responsibility explains the essential difference between
advocates and advisors:
Where the bounds of the law are uncertain, the action of a lawyer may depend upon whether he is
serving as advocate or advisor. A lawyer may serve simultaneously as both advocate and adviser,
but the two roles are essentially different. ... While serving as advocate, a lawyer should resolve in
favor of his client doubts as to the bounds of the law. In serving a client as adviser, a lawyer in
appropriate circumstances should give his professional opinion as to what the ultimate decisions
of the courts would likely be as to the applicable law.53
48

ABA Model Rule 1.2(d) (A lawyer shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent.).
49

ABA Model Rule 1.1 (A lawyer shall provide competent representation to a client.).

ABA Model Rule 1.4(b) (A lawyer shall explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.).
50

51

ABA Model Rule 8.4(c).

52

ABA Model Rule 1.6, cmt. [2].

53

ABA Model Code of Professional Responsibility (1969), EC 7-3. The Code of Professional Responsibility
preceded the current Model Rules of Professional Conduct, which absorbed the distinction between advocate and
advisor into Rule 2.1s requirement that advisors offer candid, independent advice.

41

***
[T]he requirement of independent judgment in Rule 2.1 does not permit lawyers to shape their
opinions to the clients wishes. This is common sense. Otherwise, clients might go to their lawyers
to say, Give me an opinion that says I can do what I wantand then duck responsibility by
saying, My lawyer told me it was legal. Then we would have a perfect Teflon circle: the lawyer
says I was just doing what my client instructed and the client says I was just doing what my
lawyer approved. The damage to law and compliance with law would be enormous.
Does that mean a client cannot come to a lawyer with the request, Give me the best argument you
can find that I can do X? As a general proposition, nothing forbids a lawyer from doing so, but
it would be deceptive to package one-sided advice as an authentic legal opinion. Emphatically
this is not OLCs mission, which is to tender objective advice about matters of law, binding on the
executive branch.

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