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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Culvahouse, Arthur B.: Files\nFolder Title: Iran/Arms Transaction: Legal\nMemoranda - Nicaraguan Contra Aid [Boland\nAmendment] (1)\nBox: CFOA 1131\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nTHE WHITE HOUSE\nWASHINGTON\nnew file\nSeptember 17, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nRICHARD A. HAUSER RAS\nSUBJECT:\n\"Neutrality Act\"\nAttached, as requested, is a copy of 18 USC $960, the so-called\n\"Neutrality Act\", along with a copy of a recent New York Times\narticle on issues relating to this statute, and relevant sections\nof the Department of Justice's brief in Dellums V. Smith.\nAttachments\nA\n18 § 959\nCRIMES\nPt. 1\nNote 14\nCh\ncountry. and from the action of third\n16. Examination of witnesses\npersons with whom he perfects the en-\nThe persons alleged to have been hired\nGen\nlistment which he may have contracted in\nmay testify as to their intent without\nAct\nthe United States. U. S. v. Hertz. C.C.\ncriminating themselves. U. S. V. Kazin-\nPa.1855, 3 Pittsb.Leg.J.(Pa.) 194, 26 Fed.\nski, D.C.Mass.1855, 2 Sprague 7, 26 Fed.\nCas.No.15.357.\nCas.No.15,508.\n13. Weight and sufficiency of evidence\n17. Verdict\nIn a proceeding to remove a person to\nOn a trial for violation of former sec-\nanother state in which he was indicted\ntion 22 of this title [now this section]\nfor conspiring to retain a citizen to enlist\nthe court had no power (i) direct the\nin the Mexican revolutionary forces. evi-\njury to return a verdict of guilty, pursu-\ndence tended to show a violation of\nant to an agreed statement of facts be.\nformer section 22 of this title [now this\ntween the government and the defendant.\nsection] and to show probable cause for\nregardless of the jury's own view re-\nbelieving defendant guilty of conspiring\nspecting the proper conclusion to be\nto compass such violation. Gayon V.\ndrawn from the facts agreed upon. Blair\nMcCarthy, N.Y.1920. 40 S.Ct. 2H. 252 U.S.\nV. U. S.. Cal.1917. 241 F. 217. 134 C.C.A.\n171. 64 L.Ed. 513.\n137.\n§ 960.\nExpedition against friendly nation\nWhoever, within the United States. knowingly begins or sets on foot\nor provides or prepares a means for or furnishes the money for. or\ntakes part in, any military or naval expedition or enterprise to be\ncarried on from thence against the territory or dominion of any for-\neign prince or state. or of any colony. district. or people with whom\nthe United States is at peace, shall be fined not more than $3,000 or\nimprisoned not more than three years, or both.\nJune 25, 1948, c. 645, 62 Stat. 745.\nHistorical and Revision Notes\nReviser's Note. Based on Title 18. C.\nReference to territory or possessions of\nS.C.. 1940 ed., $ 25 (Mar. +. 1909. c. 321, $\nthe United States was smitted as covered\n13. 35 Stat. 1090: June 15. 1917. c. 30. Ti-\nby definitive section 5 of this title.\ntie V. 15. 40 Stat. 223).\nCanal Zone. Applicability of section\nWords \"within the United States\" were\nCanal Zone. see section 11 of this title.\nsubstituted for \"within the jurisdiction\"\netc., in view of the definition of United\nStates in section 5 of this title.\nCross References\nForeign translents, application of section to, see section 959 of this title\nJurisdiction of offenses. see section 3241 of this title.\nLetters. writings. etc.. in violation of this section as nonmailable. -08 section 1717\nof this ritle.\nLibrary References\nInternational Law $10.18.\nC.J.S. International Law $ 16.\nNotes of Decisions\nI. GENERALLY 1-30\nII. OFFENSES 31-60\nIII. PROSECUTION AND PUNISHMENT 61-71\n300\nB\nDATE:\n9-12-84\nThe New York Times\nPAGE:\nBIO\nNeutrality and Private Adventures\nBy STUART TAYLOR Jr.\nment's chief spokesman, explained\nto avoid the appearance of circum-\nMonday that the Administration de-\nventing Congressional restrictions.\nSpecial to The New Yort Times\ncided earlier this year not to discour-\nBut the more the Administration\nWASHINGTON, Sept. 11 - The\nneutrality laws, enacted almost two\nage \"legal\" private American sup-\nargues that private groups support-\ncenturies ago to bar the organizing in\nport of the rebels in Nicaragua sup-\ning military attacks are acting on\nported by the Central Intelligence\ntheir own, the more its critics de-\nthe United States of private military\nAgency.\nmand that it prosecute the private\nattacks against other nations, have\nAsked today what kind of support\ngroups under the neutrality laws.\nbecome something of a headache for\nAmerican policymakers in the era of\nwas legal, two other State Depart-\nWashington Supported It\nment officials, who refused to speak\ncovert intelligence operations.\nThe Neutrality Act of 1794, the\nIf read broadly today, as they were\nprovision most often cited by critics\nby some courts in the 19th and early\nof the legality of the Administration's\n20th centuries, these laws could make\nCore of issue is use\nsupport for attacks on Nicaragua,\nit a crime for people in the United\nwas enacted with President Washing-\nStates, perhaps including the Presi-\nton's support to prevent the weak new\ndent, to provide financial and other\nof third country\ncountry from being dragged into for-\neign conflicts by adventurers.\nsupport for Nicaraguan rebels.\nas launching point.\nThe law states: \"Whoever, within\nSome Congressional Democrats,\nthe United States, knowingly begins\nNicaragua's Sandinista Govern-\nor sets on foot or provides or prepares\nment, have taken precisely this posi-\na means for or furnishes the money\ntion in the controversy that has flared\nfor, or takes part in, any military or\nanew since two Americans were\nfor attribution, said that in the Ad-\nnaval expedition or enterprise to be\nkilled in Nicaragua Sept. 1. Their\nministration's view the neutrality\ncarried on from themce against the\nbelicopter was downed in a rebel raid\nlaws prohibited only the direct\nterritory or dominiom of any foreign\nfrom Honduras into Nicaragua.\nlaunching of private military expedi-\nprince or state, or of any colony, dis-\nBut administrations in the modern\ntions from the United States, not the\ntrict or people with whom the United\nera have not read the neutrality laws\nprovision of financial or other support\nStates is at peace, shall be fined not\nbroadly. \"Clearly they were not de-\nto insurgencies or military expedi-\nmore than $3,000 or imprisoned not\nsigned for the kind of situation which\ntions launched from third countries.\nmore than three years, or both.\"\nexists in the world today,\" an Attor-\nThis logic would immunize from\nThe law was applied quite broadly\nney General once said.\nprosecution those who raised money\nby several lower Federal courts in the\nNothing Criminal' Noted\nin the Unitd States to send to Nicara-\n19th and early 20th centuries. For ex-\n\"Nor is an individual prohibited\nguan rebels in third countries-sucifes\nample, in a 1921 decision, several peo-\nHonduras and those who traveled to\nfrom departing from the United\nple were convicted of conspiring in\nsuch countries to enlist in forces at-\nthe United States, in World War I, to\nStates, with others of like belief, to\njoin still others in a second country\ntacking Nicaragua.\nlaunch an invasion of India from\nfor an expedition against a third coun-\nAttorney General William French\nThailand and the Phillipines.\nSmith has also argued in a pending\nBut the law has been used in only a\ntry. There is nothing criminal in an\nlawsuit that the neutrality laws do not\nindividual leaving the United States\nhandful of prosecutions in recent dec-\napply to the President or other offi-\nades. And the archaic flavor of the\nwith the intent of joining an insurgent\ngroup There is nothing criminal in\ncials supporting private military\nlanguage suggests the difficulty of ap-\nhis urging others to do so.\"\noperations abroad that are part of the\nplying this law in a world very differ-\nPresident's \"official foreign policy.\"\nent from the one for which it was writ-\nThat Attorney General was Robert\nF. Kennedy. He was explaining after\nJudge Orders and Inquiry\nten. It contains ambiguities enough to\nthe failure of the Bay of Pigs invasion\nJudge Stanley A. Weigel of Federal\nprovide grist for both sides.\nin 1961 why there was DO problem\nDistrict Court in San Francisco dis-\nAnd Representative Don Edwards,\nunder the neutrality laws with organ-\nagreed last year, saying that the neu-\nDemocrat of California, accused the\nizing of Cuban exiles in the United\ntrality laws were intended in part to\nAdministration this week of \"selec-\nStates to make a military attack on\nkeep the President from entangling\ntive enforcement of the laws\" by con-\nCuba, with Central Intelligence\nthe nation in hostilities without a Con-\ndoning private support for the Nica-\nAgency support. After all, Mr. Ken-\ngressional declaration of war.\nragua rebels.\nnedy reasoned, the immediate base\nJudge Weigel ordered a special in-\nBut one of the two State Depart-\nfor the operation was Central Amer-\nvestigation to determine whether\nment officials said today that the Ad-\nica, not the United States.\nPresident Reagan and others had vio-\nministration's consistency in taking a\nJudy Pond, & Justice Department\nlated criminal neutrality laws by sup-\nnarrow approach to the neutrality\nspokesman, refused to comment to-\nporting rebel attacks against Nicara-\nlaws was illustrated by its not prose-\nday when asked whether it violated\ngua, even though Congress appropri-\ncuting groups raising money for left-\nthe neutrality laws for private Amer-\nated $24 million for covert operations\nist rebels in El Salvador, the Irish Ra\nican groups to help finance and join in\nfor the 1984 fiscal year. A Justice De-\npublican Army or other bostile for\nmilitary attacks on Nicaragua, as did\npartment appeal is pending.\neign rebels either.\ntwo Americans.\nMeanwhile, Congress seems un-\n\"These guys are fairly clever and\nBut while the Federal Bureau of In-\nlikely to appropriate funds for covert\nthey get lawyers to stay clear of any\nvestigation has reportedly investi-\noperations in Nicaragua for the 1985\nviolations of the laws,' this official\ngated such activities, the narrow\nfiscal year, which begins Oct. 1.\nsaid. \"Occasionally we catch some-\nKennedy interpretation of the neu-\nWhile the Administration says it has\nbody who was dumb enough to launch\ntrality laws seems to have some ap-\ndecided not to discourage private\nhis expedition from the United States\npeal to the Reagan Administration.\ngroups from stepping in to support\nrather than from some other country,\nJohn Hughes, the State Depart-\nthe Nicaraguan rebels, it has sought\nbut not very often.\"\nDOJ 1983-04\n8\nC\nNo. 84-1525\nIN THE UNITED STATES COURT OF APPEALS\nFOR THE NINTH CIRCUIT\nRONALD V. DELLUMS, et al.,\nPlaintiffs-Appellees,\nV.\nWILLIAM FRENCH SMITH,\nU.S. Attorney General, et al.\nDefendants-Appellants.\nON APPEAL FROM THE UNITED STATES DISTRICT COURT\nFOR THE NORTHERN DISTRICT OF CALIFORNIA\nBRIEF FOR THE APPELLANTS\nRICHARD K. WILLARD\nActing Assistant Attorney\nGeneral\nJOSEPH P. RUSSONIELLO\nUnited States Attorney\nLEONARD SCHAITMAN\nJOHN F. CORDES\nHAROLD J. KRENT\nAttorneys,\nCivil Division-Appellate\nStaff, Room 3127\nDepartment of Justice\nWashington, D.C. 20530\nTelephone: FTS 633-4214\nIN THE UNITED STATES COURT OF APPEALS\nFOR THE NINTH CIRCUIT\nNo. 84-1525\nRONALD V. DELLUMS, et al.,\nPlaintiffs-Appellees,\nV.\nWILLIAM FRENCH SMITH,\nU.S. Attorney General, et al.\nDefendants-Appellants.\nON APPEAL FROM THE UNITED STATES DISTRICT COURT\nFOR THE NORTHERN DISTRICT OF CALIFORNIA\nBRIEF FOR THE APPELLANTS\nQUESTIONS PRESENTED\n1. Whether the Ethics in Government Act, which establishes a\nspecial procedure for investigating and prosecuting criminal\nallegations against high-level government officials, confers\nstanding to sue on private persons, or permits private judicial\nenforcement actions.\n2. Whether the Attorney General reasonably concluded that the\nNeutrality Act of 1794 does not criminalize acts of government\nofficials taken in pursuit of official foreign policy objectives.\n3. Whether the legality of the President's policy toward\nNicaragua poses a justiciable question.\nSTATEMENT OF THE CASE\n1. Jurisdiction\nA. The district court exercised jurisdiction under the\ngeneral federal question jurisdictional grant, 28 U.S.C. § 1331.\nB. This Court possesses jurisdiction under 28 U.S.C. § 1291,\nthe provision allowing appeals from district court final decisions.\nC. The district court order is properly appealable, as it\ncompletely disposes of the case.\nD. The appeal is timely. The district court entered judgment\non November 3, 1983. The government filed a timely motion to alter\nthe judgment under FED.R.CIV.P. 59 (e). The district court entered\nan order denying that motion on January 10, 1984. The government\nfiled a notice of appeal on that same day. The appeal, therefore,\nwas timely under FED.R.APP.P. 4(a)(4).\n,\n2. Nature of the Case\n=\nThe Ethics in Government Act requirës the Attorney General to\nconduct a preliminary criminal investigation of high-level\ngovernment officials upon receiving incriminating information that\nthe Attorney General determines is sufficiently specific and\ncredible. 28 U.S.C. §§ 591-592. The Attorney General then must\nnotify a special division of the District of Columbia Circuit\neither that no further investigation is warranted or that\nindependent counsel should be appointed to pursue the matter\nfurther. 28 U.S.C. § 592 (b) (1), (c) (1).\nIn this case, the district court ordered the Attorney General\nto conduct a \"preliminary investigation\" under the Ethics Act (ER\n- 2 -\n206-07)\n1 The court based its decision on plaintiffs' claim that\nthe President and various, Cabinet officers had violated the\nNeutrality Act of 1794 (18 U.S.C. § 960) in \"supporting\nparamilitary operations against Nicaragua\" (ER 171). The district\ncourt issued two opinions rejecting the government's arguments that\n(1) private persons lack standing to enforce the Ethics Act, (2)\nthe Attorney General's Ethics Act decisions are unreviewable, (3)\nthe Neutrality Act issue involves sensitive foreign policy concerns\nand therefore is non-justiciable, and (4) in any event, the\nAttorney General reasonably has construed the Neutrality Act not to\napply to official government activities.\nThe government took an immediate appeal (ER 327), and obtained\na stay pending appeal from this Court (ER 328).\n3. The Ethics In Government Act\nThe Ethics in Government Act was enacted in 1978, and amended\nin 1983. The portions of the Act applicable to this case establish\nan investigatory and prosecutorial procedure for handling criminal\nallegations against high-ranking government officials. 28 U.S.C.\n§§ 49, 591-598. The Ethics Act applies to criminal allegations\nagainst the President and Vice President, cabinet-level officers,\nand certain other high-ranking government officials or participants\nin presidential campaigns. 28 U.S.C. § 591(a), (b).\nThe Act states that, \"[u]pon receiving information that the\nAttorney General determines is sufficient grounds to investigate *\n* * the Attorney General shall conduct, for a period not to exceed\n1\n\"ER\" stands for the Excerpts of Record we have filed\npursuant to Local Rule 13(a).\n- 3 -\nninety days, such preliminary investigation of the matter as the\nAttorney General deems appropriate.\" 28 U.S.C. § 592 (a) (1). \"In\ndetermining whether grounds to investigate exist, the Attorney\nGeneral shall consider -- (A) the degree of specificity of the\ninformation received, and (B) the credibility of the source of the\ninformation.\" 28 U.S.C. § 592(a)(1). After completing the\npreliminary investigation, the Attorney General must notify a\nspecial division of the District of Columbia Circuit, established\nfor the purpose of appointing independent counsel. 28 U.S.C. §§\n49, 592 (b), (c).\nThe Attorney General's notification is to indicate either that\n\"no further investigation or prosecution is warranted,\" in which\ncase \"the court shall have no power to appoint an independent\ncounsel\" (28 U.S.C. § 592(b)(1)), or that \"further investigation or\nprosecution is warranted,\" in which case \"the Attorney General\nshall apply to the division of the court for the appointment-of an\nindependent counsel\" (28 U.S.C. § 592(c)(1)). Such applications\n\"shall not be reviewable in any court.\" 28 U.S.C. § 592(f). In\naddition, whether the Attorney General applies for appointment of\nindependent counsel or not, the Attorney General's report to the\nspecial court may not be revealed \"without leave of the ***\ncourt.\" 28 U.S.C. §§ 592 (b) (3), (d) (2).\nWhen the special court receives an application for appointment\nof independent counsel, it must \"appoint an appropriate independent\ncounsel and *** define that independent counsel's prosecutorial\njurisdiction.\" 28 U.S.C. § 593(b). The independent counsel \"shall\nhave *** full power and independent authority to exercise all\ninvestigative and prosecutorial functions and powers of the\n- 4 -\nDepartment of Justice ***.\" 28 U.S.C. § 594 (a). The\nindependent counsel must, \"except where not possible, comply with\nthe *** established policies of the Department of Justice\nrespecting enforcement of the criminal laws.\" 28 U.S.C. § 594(f).\nThe Ethics Act also establishes an alternate triggering\nmechanism. \"A majority of majority party members or a majority of\nall nonmajority party members of the Committee on the Judiciary of\neither House of the Congress may request in writing that the\nAttorney General apply for the appointment of an independent\ncounsel.\" 28 U.S.C. § 595(e). The Attorney General must make a\nwritten response to the Congressional committee inquiry within 30\ndays of its receipt, or within 15 days of the completion of a\npreliminary investigation, whichever deadline is later. Ibid. The\nAttorney General's written response is to remain confidential\nunless the Congressional committee chooses to make it public-upon a\nfinding of no prejudice to the rights of-any individual. Ibid.\n4. This Litigation\nOn January 27, 1983, the three individuals who now are\nplaintiffs in this lawsuit -- a Congressman from California (Ronald\nV. Dellums), a resident of Florida (Eleanor Ginsberg), and a\nresident of Nicaragua (Dr. Myrna Cunningham) -- submitted a letter\nto the Attorney General demanding appointment of a \"special\nprosecutor\" under the Ethics in Government Act (ER 18-23). The\nletter claimed that seven public officials covered by the Ethics\nAct had violated federal criminal law: President Ronald Reagan, ex-\nSecretary of State Alexander M. Haig, Jr., current Secretary of\nState George P. Shultz, Assistant Secretary of State Thomas O.\nEnders, Secretary of Defense Caspar Weinberger, Deputy Assistant\n- 5 -\nSecretary of Defense Nestor Sanchez, and Director of Central\nIntelligence William Casey (ER 18).\nThese officials' purported \"crimes\" arise out of the United\nStates' Central American policy, particularly its allegedly\nimproper backing of an insurgency in Nicaragua (ER 18-23).\nPlaintiffs' January 27, 1983, letter 2 detailed numerous military-\ntype activities allegedly taken by the United States government in\nfurtherance of its Nicaragua policy, and concluded that public\nofficials who participate in supporting non-wartime military\noperations against a foreign government are guilty of criminal\nmisconduct (ER 19-22). Plaintiffs cited Criminal Code provisions\nthat bar (1) military action against a foreign nation with whom the\nUnited States is at peace (the Neutrality Act, 18 U.S.C. § 960),\n(2) conspiracy to destroy foreign government property (18 U.S.C. §\n956), and (3) transportation of firearmstin foreign commerce- (18\nU.S.C. $ 922) (ER 22-23).\nOn March 18, 1983, the then-Assistant Attorney General for the\nCriminal Division, D. Lowell Jensen, sent a letter to plaintiffs\ndenying their request for appointment of a \"special prosecutor\" (ER\n67). Mr. Jensen explained that the \"material you provide does not.\nconstitute specific information of a federal offense 'sufficient to\nconstitute grounds to investigate' as required by the Ethics in\n2\nPlaintiffs attached to their letter a copy of the complaint\nthey and others had filed in Sanchez-Espinoza V. Reagan, No. 82-\n3395 (D.D.C.) (ER 24-66). The Sanchez-Espinoza complaint sought\ndamages and injunctive relief for the government's allegedly\nillegal Nicaragua policy. The district court, however,\ndismissed the complaint under the political question doctrine.\nSanchez-Espinoza V. Reagan, 568 F. Supp. 596 (D.D.C. 1983)\nappeal pending, No. 83-1997 (D.C. Cir.).\n- 6 -\nGovernment Act as amended on January 3, 1983\" (ER 67).\nSeveral months later, in July, 1983, plaintiffs filed this\nlawsuit against the Attorney General, William French Smith, and\n3\nagainst Assistant Attorney General Jensen (ER 1-17).\nThe\ncomplaint alleges that plaintiffs' January 27 submission to the\nAttorney General presented sufficient information of criminal\nviolations by the President and senior Administration officials to\nwarrant a \"preliminary investigation\" under the Ethics Act (ER 4-\n5). The complaint points to a variety of injuries resulting from\nthe alleged violations (ER 3). Plaintiff Dellums claims, as a\nmember of Congress, a deprivation \"of his constitutional right to\nparticipate in the decision to declare war, grant letters of marque\nand reprisal, and raise and support armies\" (Id.). Plaintiff\nGinsberg, who lives in Florida where plaintiffs say there are\nparamilitary training camps, claims a \"nuisance,\" and the loss \"of\nher right to the peaceful enjoyment of her property\" (Id.)\nPlaintiff Cunningham claims \"kidnapping and rape at the hands of\ninsurgent forces\" in Nicaragua that were \"trained, armed, and\nfunded at the direction of the President and other U.S. officials\n*\n**\" (Id.). Based on these allegations, plaintiffs' complaint\ndemanded a preliminary investigation under the Ethics Act, or\nalternatively, appointment of independent counsel (ER 16).\n5. District Court Decisions\nOn November 3, 1983, the district court entered summary\n3\nStephen S. Trott now has succeeded Mr. Jensen as Assistant\nAttorney General for the Criminal Division, and pursuant to\nFED.R.APP.P. 43 (c) he should be substituted for Mr. Jensen as a\ndefendant in this lawsuit.\n- 7 -\njudgment for plaintiffs (ER 206-07). The judgment required the\nAttorney General, by February 1, 1984, to conduct and complete a\n\"preliminary investigation *** relating to violations of the\nI\nNeutrality Act, 18 U.S.C. § 960\" (Id.). The court reasoned\nthat plaintiffs' claim of Neutrality Act violations was\n\"sufficiently specific\" and \"credible\" to warrant an Ethics Act\ninvestigation (ER 174). The court stressed that it was not\ndeclaring \"illegal any action by the President or his\nsubordinates,\" only \"that the Executive actions alleged by\nplaintiffs, if true, may violate federal law\" (ER 174, 204).\nThe district court rejected the government's argument that the\nEthics Act does not contemplate private enforcement suits (ER 177-\n90). The court acknowledged that plaintiffs' claims of harm from\n\"the underlying criminal acts\" were too \"speculative\" to confer\nstanding to sue (ER 200). The court found \"the requisite interest\nfor standing, \" however, in the Ethics Act itself -- which,\naccording to the district court, grants \"all members of the public\"\na \"procedural right\" that incriminating information they submit\n\"will be forwarded and considered by appropriate decisionmakers\"\n(ER 178-80). The court concluded from this, despite the Ethics\nAct's failure expressly to authorize private suits, that \"Congress\nconferred upon [plaintiffs] a right to a judicial determination\"\n(ER 180). The court also held that the Attorney General's refusal\nto conduct an Ethics Act investigation is reviewable because of the\nAdministrative Procedure Act's \"strong presumption of the right to\njudicial review\" (ER 184 et seq.). Absent private enforcement\nsuits, the district court believed, the Ethics Act would be\nrendered \"a nullity\" (ER 183).\n- 8 -\nFinally, the court rejected the government's \"political\nquestion\" argument that the judiciary ought not adjudicate\nsensitive foreign policy matters (ER 190-94). The court reasoned\nthat plaintiffs' suit does \"not directly challenge the legality of\nany action taken by the President,\" but \"seek[s] only to compel\ngood faith performance of a statutory duty\" (ER 192).\nThe government immediately filed a motion under FED.R.CIV.P.\n59 (e) to alter the district court's judgment (ER 208-44). The\ngovernment argued that the Attorney General reasonably had\nconcluded that the Neutrality Act does not apply to official\ngovernment activities, thus obviating any need for an Ethics Act\ninvestigation (Ibid.). The district court rejected the\ngovernment's position (ER 305-21). Relying on the \"history of the\nNeutrality Act and judicial precedent,\" the court found that\nplaintiffs' \"contention that the Neutrality Act reaches executive\nofficials is at least as persuasive as defendants' claim that it\ndoes not\" (ER 309, 314). The court also concluded that various\nindications that Congress had sanctioned the government's Nicaragua\npolicy through legislation \"do not justify the Attorney General's\nrefusal to conduct a preliminary investigation\" (ER 313-14).\nThe government promptly took an appeal (ER 327). After the\ndistrict court refused to stay its judgment pending the appeal (ER\n322-26), the government on January 25, 1984, obtained a stay from\nthis Court (Pregerson and Kennedy, JJ.) (ER 328).\nSTATUTORY PROVISIONS INVOLVED\nThe text of the Ethics in Government Act (28 U.S.C. §§ 591-98)\nand of the Neutrality Act (18 U.S.C. § 960) is reproduced in an\naddendum to this brief.\n- 9 -\nII. THE NEUTRALITY ACT DOES NOT REACH THE CONDUCT OF\nGOVERNMENT OFFICIALS ACTING PURSUANT TO OFFICIAL\nGOVERNMENT POLICY\nIntroduction\nThe district court held that plaintiffs' allegations \"could\n*\n&\n7. reasonably be construed as involving a federal crime\" under\nthe Neutrality Act, and therefore, that the Attorney General had\nno choice but to conduct a preliminary investigation (ER 309).\nBut the Attorney General, the nation's chief law enforcement\nofficer, must determine as a threshold matter under the Ethics\nAct whether the facts alleged amount to a criminal violation.\nThe statute makes clear that a preliminary investigation is only\nnecessary upon receipt of \"information that the Attorney General\ndetermines is sufficient to constitute grounds to investigate.\"\n28 U.S.C. 592 (a) (1) (emphasis added). Based upon reasoned legal\njudgment and the overwhelming evidence of Congressional intent,\nthe Attorney General has concluded that plaintiffs' allegations,\neven if true, simply do not constitute a federal crime -- namely,\nthat Section 5 of the Neutrality Act, 18 U.S.C. 960, does not\nproscribe acts taken in pursuit of official governmental\npolicy. 7\nAssuming standing and reviewability, the Attorney General's\nview of federal criminal statutes is at least entitled to\nconsiderable deference. Under the APA, the Attorney General's\n7 The district court inexplicably asserted that the Attorney\nGeneral has enunciated a policy not to prosecute federal\nofficials under the Act (ER 314). To the contrary, the\ndetermination made by the Attorney General in this case\nrepresents the official legal position of the Department of\nJustice and was set forth in a 1979 opinion of the Office of\nLegal Counsel (ER 304A). It warrants judicial deference.\n- 31 -\nconsidered construction of the Neutrality Act can only be\noverturned if it is deemed unreasonable. Committee for an\nIndependent P-I V. Hearst Corp., 704 F.2d 467, 472-473 (9th\nCir.), cert. denied, 104 S.Ct. 236 (1983). The responsibility to\nconstrue and enforce criminal statutes lies at the core of the\nexecutive's function, United States V. Dotterweich, 320 U.S.\n277, 285 (1943), see p. 20-22, supra, and the principle of\ndeference is particularly apt when the statutory construction\naffects the nation's foreign policy. See generally Dames &\nMoore V. Regan, 453 U.S. 654, 674-684 (1981); Haig V. Agee, 453\nU.S. 280, 301-303 (1981). The Attorney General's resolution of\nthe fundamental question in this case -- whether Congress\nintended to criminalize acts of Administration officials pursuing\nofficial foreign policy objectives -- ought not be questioned,\ntherefore, absent complete unreasonableness or bad faith. As we\nshow below, the Attorney General's position on the Neutrality Act\nis not only eminently reasonable, but compelled by considerations\nof the plain language of the statute, the circumstances\nsurrounding its enactment, and the post-enactment history of\nexecutive and legislative measures consistent with that position.\nBy its very terms, the statute proscribes individual\nconduct, not government activities. The statute today addresses\n\" [w] hoever, within the United States, knowingly begins or sets on\nfoot * * * any military or naval expedition or enterprise to be\ncarried on from thence against the territory or dominion of any\nforeign prince or state * * *.\" 18 U.S.C. 960. The use of the\nterm \"whoever,\" like its statutory predecessor \"any person, \" 1\nStat. 381, 384 (1794), is no mere catch-all expression. At\n- 32 -\ncommon law, a statutory reference to \"any person\" or \"whoever\"\ndid not include the sovereign if such an interpretation would\nimpinge upon the sovereign's prerogatives, an understanding of\nwhich the colonists presumably were aware. See Street, Effect of\nStatutes Upon the Rights and Liabilities of the Crown, 7 U.\nToronto L.J. 357 (1947). Congress presumptively does not intend\nto include official governmental action when including the open-\nended phrase \"any person. \"\nThat canon of statutory construction has continuing vitality\ntoday. In United States V. Cooper Corp., 312 U.S. 600 (1941),\nthe Supreme Court addressed the issue whether \"any person\" in\nSection 7 of the Sherman Act included the United States. The\nCourt declared that \"in common usage, the term 'person' does not\ninclude the sovereign, [and that] statutes employing the phrase\nare ordinarily construed to exclude it.\"=Id. at 604. See also\nWilson V. Omaha Indian Tribe, 442 U.S.E653, 667 (1979).\nMoreover, as the Court stated in FPC V. Tuscarora Indian Nation,\n362 U.S. 99, 120 (1960), a \"general statute imposing restrictions\ndoes not impose them upon the Government itself without a clear\nexpression or implication to that effect.\" (quoting United\nStates V. Wittek, 337 U.S. 346, 358-359 (1949)). The intent to\npreserve the gist of the common law rule seems clear. Cf. United\nStates V. United Mine Workers, 330 U.S. 258, 272 (1947)\n(reaffirming the \"old and well-known rule that statutes which in\ngeneral terms divest pre-existing rights or privileges will not\nbe applied to the sovereign without express words to that\neffect. \"). The statutory rule takes on that much more force when\ncombined with the familiar canon that criminal statutes are\n- 33 -\nstrictly construed. In a criminal statute, then, it is logical\nto conclude that \"person\" does not apply to Administration\nofficials carrying out governmental policy.\nThus, by reference to traditional guides of statutory\ninterpretation, the word \"whoever\" in the context of this\ncriminal provision cannot bear the construction proffered by\nplaintiffs. \"Whoever\" reaches private conduct, not that\nauthorized or initiated by official governmental policy. The\nAttorney General's interpretation on its face is thus\n8\nunquestionably reasonable.\nA. The Legislative History Clearly Demonstrates That The\nNeutrality Act Sought To Proscribe Private As Opposed To\nOfficial Governmental Involvement In The Affairs Of Foreign\n\"Neutral\" Nations.\nExamining the events leading up to enactment of the 1794\n8\nThe district court stated that British antecedents to the\nNeutrality Act illuminate Congress' intent to circumscribe the\nexecutive's authority (ER 309-310). The court contended that\nsince the earlier statutes provide exceptions for those acts\n\"with leave or license of the crown,\" Congress' failure to\nadopt a similar qualifier in the Neutrality Act proves that the\nAct applies to official government policy (Id.) The\ncourt's reasoning is ill-conceived. To begin with, the section\nof the Neutrality Act in dispute had no direct British\nprecursor. See C. Fenwick, The Neutrality Laws of the United\nStates 27 (1913); Lobel, The Rise and Decline of the Neutrality\nAct: Sovereignty and Congressional War Powers in United States\nForeign Policy, 24 Harv. Int'l L. J. 1, 32 n.164 (1983).\nRather, the British statutes -- 12 Anne c.ll (1713); 9 George 2,\nc.30 (1736); 29 George 2, c.17 (1756) -- all concerned\nprohibiting British subjects from enlisting in foreign wars.\nEven without the clause \"with leave or license of the crown,\"\nthe statutes would not have restrained official acts of the\nexecutive, and the statutes' only impact on government officials\nwas the de minimus restriction on their participation as\nindividuals in a foreign war. Since the statutes in question\nhave no relevance to the problem Congress attempted to remedy in\nSection 5 of the Neutrality Act, Congress could not have copied\nthe statutes verbatim even if it had SC desired.\n- 34 -\nNeutrality Act removes any possible doubt as to the statute's\npurpose. Congress sought not to restrict executive prerogatives\nunder Article II, but to support the executive by criminalizing\nacts of individuals that threatened to interfere with the\ngovernment's conduct of foreign policy. President Washington\nfeared that precipitous acts by individual citizens, primarily\ninstances of privateering or of aid to privateering, would\nembroil the country in the war between France and England.\nBelieving that open hostilities would jeopardize our newly won\nindependence, President Washington opted for as strict a policy\nof neutrality as possible. C. Fenwick, supra, at 16-26. To that\nend, President Washington issued a proclamation of neutrality in\nApril of 1793 warning citizens to avoid all acts which threatened\nto subvert the government's chosen neutral course. See 1 American\nState Papers, Foreign Relations 140 (1883).\nDespite the proclamation, French vessels continued to be\narmed and commissioned in American ports, and the celebrated\nFrench Minister, Edmond Charles Genet, asserted French\njurisdiction over prizes brought into those ports. C. Fenwick,\nsupra, at 18-20. President Washington consequently called upon\nCongress, as soon as it had reconvened, to enact legislation to\nensure American neutrality: \"Where individuals shall, within the\nUnited States, array themselves in hostility against any of the\nPowers at war * * * these offenses cannot receive too early and\nclose an attention, and require prompt and decisive remedies. \" 4\nAnnals of Congress 11 (1793).\nCongress responded by passing the Neutrality Act. Its\npurpose, as discussed on the House floor, was to strengthen the\n- 35 -\nhand of the President: \"We have been told from the first\nauthority- that of the PRESIDENT an authority which in no\nGovernment but ours would be called in question- that such\nadditional powers were necessary. But if, after this notice, we\nreject the bill, this must dampen the exertions of the Executive;\nand what if we shall be driven into a war by the licentious\nbehaviour of some individuals?\" 4 Annals of Congress 743 (remarks\nof Rep. Ames). Far from circumscribing executive authority, the\nNeutrality Act was proposed by the executive to strengthen the\n9\nexecutive.\nThe legislative history, therefore, contrary to the\nconclusory remarks of the district court (ER 311), 10 makes it\n9\nCircumstances surrounding the almost contemporaneous\nreenactment and revision of the Neutrality Act buttress the\nabove conclusion. The Act was first amended substantively at\nPresident Adams' request in 1797, Act of March 2, 1797, ch. 5, 1\nStat. 497. The amendments tightened the proscription against\nprivateering, and thereby girded the government's course of\nneutrality. C. Fenwick, supra, at 30-31. Twenty years later, in\nthe wake of continued protests from Spain and Portugal,\nPresident Madison lobbied Congress for further amendments which\nresulted in the Act of March 3, 1817, ch. 58, strengthening the\nexecutive's hand against shipowners who lent their vessels. in\naid of Latin American revolutionaries. See C. Fenwick, supra, at\n35-39. Supplementary legislation was again passed in 1838, Act\nof March 10, 1838, 15 Stat. 212, this time to increase the\nexecutive's power against citizens aiding Canadians to overthrow\nBritish rule. See C. Fenwick, supra, at 42-43. The pattern has\nbeen consistent: neutrality laws have been proposed by the\nexecutive to bolster the central government's foreign policy.\n10\nThe district court's glaring failure to address the\nlegislative purpose behind enactment of the Neutrality Act is\nnoteworthy. Instead of analyzing the circumstances giving rise\nto the Neutrality Act, it baldly asserted that [o]ne of [the\nAct's] major purposes was to protect the constitutional power of\nCongress to declare war or authorize private reprisals against\nforeign states\" (ER 311), and cited only to the law review\narticle of plaintiffs' counsel, Professor Lobel, supra note 8,\nfor support. But ironically, even Professor Lobel elsewhere in\nthe article concluded that: \"The fundamental purpose of the\n(CONTINUED)\n- 36 -\nclear that Congress sought to fortify governmental control over\nforeign policy through enactment of the Neutrality Act.\nNor does the one case relied upon by the district court,\nUnited States V. Smith, 27 F. Cas. 1192 (C.C.S.D.N.Y. 1806),\nundermine the above understanding of the Act. In Smith, the\ncourt held that the President's alleged prior knowledge and\napprobation of a private military expedition did not shield the\ndefendant mercenaries from prosecution under the Act. Even\npresuming the correctness of the trial court's decision in Smith,\nthat case not only involved a prosecution of private individuals\nas opposed to government officials, it also concerned an\nexpedition launched for private motives as opposed to the instant\none which is alleged to be part of official government policy.\nThe district court's opinion attempted to elide the\ndifferences by claiming that the essence of Smith is the\n1\nproposition that the Neutrality Act reaches acts authorized by\nthe President (ER 313). But the court's characterization of\nSmith is itself faulty. Smith involved only allegations that the\nPresident knew of or \"winked\" at the private expedition, not that\nhe authorized it in any way. After all, it should be remembered\nthat it was the executive which initiated the prosecution in the\nfirst place. Indeed, Judge Patterson specifically questioned\ndefendants' counsel about the nature of the critical allegation\n10\n(FOOTNOTE CONTINUED)\nNeutrality Act, however, lay not in asserting state sovereignty\nwith respect to other states but in strengthening the authority\nof the central government vis-a-vis its citizens * * *.\" Id. at\n24.\n- 37 -\nin the case: \"You state in the affidavit that it was done with\nthe knowledge and approbation of the president, but is it stated\nin the affidavit that he authorized the fitting out of the\nexpedition?\" The attorney responded, \"I conceive that it was not\nnecessary, \" and then he disavowed his intention to advance such a\nclaim. The Trials of William S. Smith, and Samuel Ogden 66\n(Thomas Lloyd, stenographer 1807) (excerpt attached to this\nbrief). This case, however, unlike Smith, involves allegations\nof direct governmental involvement in the expedition; in fact,\nplaintiffs allege that the government was funding the insurgents,\nand that the CIA was to play a key role in training the\ninsurgents, all as a part of official United States foreign\npolicy (ER 6-12). Smith simply does not address whether the\nNeutrality Act reaches the conduct of public officials acting\n11\npursuant to governmental objectives.\n=\nB. This Country's History Of Repeated Military Actions\nAgainst \"Neutral\" Nations Supports The Attorney General's\nConstruction of the Neutrality Act.\nAs the district court recognized (ER 311), presidents\nthroughout this nation's history have exercised the broad\ndiscretion invested to them under the Constitution to introduce\n11\nTo our knowledge, no subsequent judicial decision has\naddressed the issue implicated in this case. However, it should\nbe noted that the Supreme Court, in distilling the significance\nof the Neutrality Act, has stated that \"no nation can permit\nunauthorized acts of war within its territory in infraction of\nits sovereignty.\" United States V. The Three Friends, 166 U.S.\n1, 52 (1897) (emphasis added). The Court recognized that the\nneutrality laws were enacted \"in order to provide a\ncomprehensive code in prevention of acts by individuals within\nour jurisdiction inconsistent with our own authority, as well as\nhostile to friendly powers. Id. at 53 (emphasis added).\n- 38 -\ntroops into foreign nations without first obtaining a declaration\nof war. Needless to say, this background of over one hundred\ninstances of engaging in or supporting hostilities in \"neutral\"\nnations, see Emerson, War Powers Legislation, 74 West Va. L.\nRev. 53 (1971); Monaghan, Presidential War-Making, 50 B.U.L.\nRev. 22, 26-27 (1970), is difficult to square with plaintiffs'\nconstruction of the Act. Presidents have acted both with and\nwithout subsequent Congressional authorization. Vietnam and\nGrenada are two recent examples of a phenomenon which has marked\nthe nation's history. Still, Congress as a whole has never\ninvoked the Neutrality Act to oppose executive action. To the\ncontrary, on many occasions it has adopted the executive's chosen\npath and provided funding for further military actions. See\nEmerson, supra, at 73.\nThe district court attempted to evader this inconsistencyir\nits position by stating that Congress must not have intendedithe\nNeutrality Act to apply to military operations conducted by\nregular U.S. troops (ER 313). Yet the district court as well as\nplaintiffs are at a loss to explain why the Congress which\npurportedly sought to protect its war powers under Article I, §\n8, by enacting the Neutrality Act would ever have exempted the\nmost expansive infringement of its powers conceivable -- the\nPresident's right to introduce troops into foreign nations\nwithout a Congressional declaration of war. Moreover, as a\nhistorical matter, presidents not only have dispatched regular\nUnited States troops without seeking prior Congressional\napproval, but from the 1811-1813 secret war against Spanish\nFlorida, see A. Sofaer, War, Foreign Affairs and Constitutional\n- 39 -\nPower 291-317 (1976), to the Bay of Pigs invasion, they have lent\n12\nthe government's support to paramilitary operations.\nPractice thus corresponds with the intent of the enacting\nCongress -- the Neutrality Act was meant to proscribe only the\nacts of individuals interfering with the course of official\n13\ngovernmental foreign policy.\nIn dismissing the import of the continuing history of\nmilitary and paramilitary expeditions, the district court chose\nto rely instead on post-enactment remarks of various presidents\nto demonstrate that the Act encompasses official governmental\npolicy (ER 311). To be sure, former presidents have publicly\nremarked that the warmaking powers, as a constitutional matter,\nare vested solely in Congress. See, e.g., Statement of Pres. Van\nBuren (Dec. 3, 1838), reprinted in 3 Messages and Papers of the\n12\nWe note that according to the Senate Select Committee to\nStudy Governmental Operations with Respect to Intelligence\nActivities, S. Rep. No. 755, 94th Cong., 2d Sess. Book I, 120\n(1975), the government has supported paramilitary efforts. on\nother occasions as well, most notably to the Committee, in Laos\nin the early 1960's, and in Guatemala in the 1950's.\n13 Attorney General Jackson's 1940 opinion, 39 Op. Atty. Gen.\n484, 494-96, is not to the contrary. Jackson construed not the\nNeutrality Act of 1794, but an amendment inserted in the midst\nof World War I which had no antecedent in the original Act. Act\nof June 15, 1917, § 503, 40 Stat. 217, 222. In pertinent part\nthe section reads: \"During a war in which the United States is a\nneutral nation, it shall be unlawful to send out of the\njurisdiction of the United States any vessel built, armed, or\nequipped as a vessel of war * * *.\" Moreover, the legislative\nhistory suggests that Congress enacted the provision to conform\nthe conduct of the government in this respect to accepted\ninternational principles of neutrality. See H.R. Rep. No. 30,\n65th Cong., 1st Sess. 9 (1917). Unlike in 1794, the fear was\nnot just that the acts of individuals could propel the nation\ninto war, but that foreign powers would interpret official\ngovernment conduct in such a way as to lead to war.\n- 40 -\nPresidents 487 (J. Richardson ed. 1896); statement of Pres.\nBuchanan, Cong. Globe, 35th Cong., 1st Sess. 217 (Jan. 7,\n1858). By citing these speeches, the district court apparently\nwished to graft a constitutional perspective on Congress'\nhegemony over the warmaking powers, a jurisprudential view which\nis by no means universally shared, onto a criminal statute\ndrafted by the Executive Branch which incontrovertibly sought to\naugment the central government's control over foreign policy.\nThe speeches shed no light on the proper construction of the\nNeutrality Act. They do not refer to the Neutrality Act at all,\nand any possible significance is belied by the accompanying\nhistory of repeated military incursions into nations without a\ndeclaration of war.\nSimilarly, the district court's reliance on Senator\nSlidell's attempt to amend the Neutrality Act in the 1850's is\nmisplaced (ER 311-312). Slidell sought to amend the Neutrality\nAct to allow the President to suspend its operation whenever\nrequired \"in the public interest.\" Cong. Globe, 33d Cong., 1st\nSess. 1021-1024 (May 1, 1854). The purpose of his amendment was\nto enable southerners to invade Cuba in order to prevent the\nimpending abolition of slavery by the Spanish Government. Id. at.\n1021. We do not understand plaintiffs to suggest that Slidell's\nscheme could conceivably have enjoyed the official sanction of\nthe government. Slidell's amendment was addressed not to official\ngovernment initiatives, but to private ventures. By rebuffing\nSlidell's attempt, Congress merely reaffirmed that the President\nshould not \"wink\" at private expeditions launched for private\npurposes. The efforts of Senator Slidell, like the remarks of\n- 41 -\nthe former presidents, simply do not support plaintiffs' position\nthat the Neutrality Act was ever thought to circumscribe the acts\nof federal officials implementing official government policy.\nC. Recent Congressional Enactments Are Inconsistent With\nPlaintiffs' Thesis That The Executive's Conduct Of Official\nForeign Policy Could Conceivably Violate the Neutrality\nAct.\nIn recent years, Congress and the executive have engaged in\na continual dialogue over the executive's right to conduct so-\ntermed covert activities as part of its foreign policy. Although\nthe two branches have not always agreed, the debates themselves\ndemonstrate that Congress has long been aware of the executive's\nconduct of such activities, and the disagreements which have\narisen concern not whether the conduct is criminal, but whether\nthe activities should be carried out with greater Congressional\nparticipation. In light of repeated Congressional measures-\nrecognizing and authorizing appropriations for such actions the\ndistrict court's conclusion that the official conduct of foreign\npolicy may reasonably constitute a criminal violation is simply\nspecious.\nIn the aftermath of the Vietnam War, Congress as a whole\nasserted a greater role in foreign policy matters. In 1973,\nCongress enacted the War Powers Resolution, Pub. L. No. 93-148,\n87 Stat. 555, which requires the President to consult with\nCongress and provide reports concerning the introduction of\ngovernment troops abroad, 50 U.S.C. $ 1543. The only sanction\nprovided, however, is that \"[w]ithin sixty calendar days after a\nreport is submitted * * * the President shall terminate any use\nof United States Armed Forces * * * unless [several specified\n- 42 -\nconditions are met] 50 U.S.C. $ 1544(b). Enactment of the\nHughes-Ryan amendment one year later, Pub. L. No. 93-559, 88\nStat. 1804 (codified at 22 U.S.C. § 2422), manifests a similar\nresponse to executive conduct of foreign affairs, this time\ndirectly relating to covert operations. In placing procedural\nlimitations on CIA covert activities, Congress unquestionably\nrecognized the underlying exercise of executive power:\n\"Notwithstanding this limitation, the President may authorize and\ndirect that any operation in a foreign country be resumed, or\nthat any other operation in a foreign country be initiated, and\nfunds may be expended therefor, if but not before, he (1) finds\nthat such operation is important to the national security * * * \"\nS. Rep. No. 1299, 93d Cong., 2d Sess. 43 (1974) (emphasis\nadded). Any questions concerning the legitimacy of the\nexecutive's exercise of that power were not resolved by\ncriminalizing the executive's conduct. Bather, Congress treated\nthe subject of the covert actions as falling within the domain of\nboth the executive and Congress -- each had its assigned role.\nThe Hughes-Ryan legislation would for the most part be\nsuperfluous if the Neutrality Act reached covert actions pursued\nas a part of official government policy.\nCongress has continued to help shape the executive's conduct\n14\nof covert activities.\nIndeed, Congress recently has\nauthorized appropriations for the very activities which\n14\nCongress amended the Hughes-Ryan legislation in 1980,\nPub. L. No. 96-450, 94 Stat. 1981 (codified at 50 U.S.C. § 413),\nproviding for more extensive Congressional oversight of\nintelligence activities.\n- 43 -\nplaintiffs claim violate the neutrality laws. In passing the\n1984 Intelligence Authorization Act on November 18, 1983,\nCongress affirmatively authorized funding should the executive\nchoose to aid the insurgents in Nicaragua. The Act set a twenty-\nfour million dollar cap on expenditures \"for the purpose or which\nwould have the effect of supporting, directly or indirectly,\nmilitary or paramilitary operations in Nicaragua by any nation,\ngroup, organization, movement, or individual.\" Intelligence\nAuthorization Act for Fiscal Year 1984, Pub. L. No. 98-215, §\n108, 97 Stat. 1473. Contrary to the district court's statement\nthat the funding is irrelevant (ER 320), the Congressional\nauthorization is clearly inconsistent with plaintiffs' thesis\nthat the activities charged constitute criminal violations.\nThus, while Congress has chosen to place some limitations\nupon the executive's conduct of covert activities, including-\nproviding aid for paramilitary groups, it has also recognized the\nlegitimacy of the underlying exercise of executive authority.\nCongressional participation in that exercise undermines\nplaintiffs' argument that the Neutrality Act was designed to\ncircumscribe the executive's foreign affairs prerogatives. The\nAttorney General has reasonably concluded that the President and\nsenior Administration officials cannot conceivably have violated\na federal criminal law by allegedly pursuing policies explicitly\nfunded by Congress.\nIII. THE NEUTRALITY ACT'S APPLICABILITY TO OFFICIAL ACTIONS OF\nTHE EXECUTIVE BRANCH THAT HAVE BEEN SUPPORTED BY CONGRESS\nPRESENTS A NONJUSTICIABLE POLITICAL QUESTION\nGiven Congress' , legislation funding the government's\nNicaragua policy, this case presents a political question\n- 44 -\ninappropriate for judicial resolution. It is important to\nreemphasize the extraordinary relief that plaintiffs seek--a\ndeclaration that the government's official conduct of foreign\npolicy may violate a criminal provision housed in the Neutrality\nAct. What they are seeking, then, is for this Court to intrude\nupon an area constitutionally entrusted to the other two\nbranches. But, as the Supreme Court has stated: \"the very nature\nof executive decisions as to foreign policy is political not\njudicial. Such decisions are wholly confided by our Constitution\nto the political departments of the government, Executive and\nLegislative. \" Chicago & Southern Air Lines, Inc. V. Waterman\nSteamship Corp., 333 U.S. 103, 111 (1948).\nMeasured against the standards articulated in Baker v. Carr,\n369 U.S. 186, 217 (1962), the issue implicated in this case is\nnonjusticiable:\nProminent on the surface of any case=held to involve a\n-\npolitical question is found a textually demonstrable\nconstitutional commitment of the issue to a coordinate\npolitical department * * * or the impossibility of a court's\nundertaking independent resolution without expressing lack\nof the respect due coordinate branches of government; or an\nunusual need for unquestioning adherance to a political\ndecision already made; or the potentiality of embarassment\nfrom multifarious pronouncements by various departments on\none question. \"\nFirst, there can be no question but that there is clearly a\n\"textually demonstrable constitutional commitment of the issue\nto a coordinate political department.\" The conduct of foreign\naffairs in general, and the decision to provide covert aid in\nparticular, lie within the prerogatives of Congress and the\nPresident. Recent legislation, see pages 42-44, supra,\namply demonstrates that the two branches have joined in\n- 45 -\ncontinuing discourse to delineate their respective roles in so-\ntermed covert aid decisions. As the Court of Appeals for the\nFirst Circuit held in dismissing a challenge to the conduct of\nthe Vietnam War, [a]s to the power to conduct undeclared\nhostilities beyond emergency defense, then, we are inclined to\nbelieve that the Constitution in giving some essential powers to\nCongress and others to the executive, committed the matter to\nboth branches, whose joint concord precludes the judiciary from\nmeasuring a specific executive action against any specific\nclause in isolation.\" Massachusetts V. Laird, 451 F.2d 26, 33\n(lst Cir. 1971); see Sarnoff V. Connally, 457 F.2d 809 (9th\nCir.) (dismissing challenge to Vietnam War on political question\nground because \"[t]he conduct of foreign affairs is within the\nexclusive province of Congress and the Executive. \"), cert.\ndenied, 409 U.S. 929 (1972). The district court's order\ndisrupts the ongoing interplay between Congress and the\n1\"\nExecutive on the extent of covert activities, distorting the\nbalance envisioned in the Constitution. In face of the\ncommitment to the other branches, plaintiffs should not be\npermitted to bypass those branches -- any redress should be\nobtained through the political process.\nSecond, judicial intrusion into the President's realm of\nforeign policymaking can only end in denigrating the \"respect\ndue coordinate branches of government.\" The district court's\norder casts a pall upon the government's conduct of foreign\npolicy, and it brings into question the legitimacy of past\npresidencies as well, since the majority of presidents have\naided hostilities in \"neutral\" nations.\n- 46 -\nFinally, not only does the district court's order threaten\nto erode the respect due coordinate branches of government, but\nit exposes the government to the \"real danger of embarassment\nfrom multifarious pronouncements by various departments on one\nquestion. \" The Executive Branch has allegedly articulated its\nview as to the legitimacy of aid to the Nicaraguan insurgents,\nand Congress through appropriations has acquiesced in that\ndetermination. The judiciary simply has no role to\nplay. Recognizing the propriety of that consideration, the\nCourt of Appeals for the Fifth Circuit in Dickson V. Ford, 521\nF.2d 234 (5th Cir. 1975), cert. denied, 424 U.S. 954 (1976),\ndismissed a challenge to the President's decision backed by\nCongress to provide foreign aid to Israel. The Court applied\nthe political question doctrine because a determination that\nforeign aid was necessary was \"a 'question uniquely demand[ing]\nsingle-voiced statement of the Government's views. Id. at\n236. Since the Executive and Legislative Branches have already\nmanifested their view that the Neutrality Act does not apply to\nthe alleged governmental aid for Nicaraguan insurgents, the need\nfor a \"single voice\" is just as pressing. The district court's\npronouncement therefore may \"rattle the delicate diplomatic\nbalance that is required in the foreign affairs arena. \" Sanchez-\nEspinoza V. Reagan, supra (dismissing challenge to alleged U.S.\nsupport of covert activity in Nicaragua on political question\ngrounds). When the executive branch has pursued a foreign\npolicy objective and received Congress' imprimatur, judicial\nintrusion is wholly inappropriate.\n- 47 -\nCONCLUSION\nFor the foregoing reasons, this Court should reverse the\ndistrict court's judgment.\nRespectfully submitted,\nRICHARD K. WILLARD\nActing Assistant Attorney\nGeneral\nJOSEPH P. RUSSONIELLO\nUnited States Attorney\nLEONARD SCHAITMAN\nJOHN F. CORDES\nHAROLD J. KRENT\nAttorneys,\nCivil Division-Appellate\nStaff, Room 3127\nDepartment of Justice\nWashington, D.C. 20530\nTelephone: FTS 633-4214\nMARCH 1984\n- 48 -\nSTATEMENT OF RELATED CASES\nThere are no related cases within the meaning of Local Rule\n13(b)(4). .\n=\n11\n111\n÷\n-\n- 49 -\nCERTIFICATE OF SERVICE\nI hereby certify that on this 20th day of March, 1984, I\nserved the foregoing Brief for the Appellants by causing copies\nto be Express Mailed, postage prepaid, to:\nEllen Yaroshefsky\nMichael D. Ratner\nSarah Wunsch\nPeter Weiss\nCenter for Constitutional Rights\n853 Broadway\nNew York, N.Y. 10003\nJules Lobel\nUniversity of Pittsburgh Law School\n3900 Forbes Ave.\nLaw Building, Room 505\nPittsburgh, Pa. 15260\nMarc Van der Hout\nNational Lawyers Guild\n3689 18th Street\nSan Francisco, California 94110\n30 F. CORDES = Cowe\nJOHN\nAttorney\nCivil Division, Room 3617\nDepartment of Justice\nWashington, D.C. 20530\n- 50 -\nADDENDUM\nA -- Transcript Excerpt from Smith case\nB\n-- Ethics in Government Act, 28 U.S.C. §§ 591-598\nC -- Neutrality Act, 18 U.S.C. § 960\nTHE\nADDENDUM A\nTRIALS\nOF\nWILLIAM S. SMITH,\nAND\nSAMUEL G. OGDEN,\nFOR\nMISDEMEANOURS,\nHAD III THE CIRCUIT COURT OF THE UNITED STATES =\nTHE NEW-YORK DISTRICT, IN=JULY, 1806.\n-\nWITH 4 PEELIMINARY ACCOUNT or THE PROCEEDINGS or THE-\nSAME COURT AGAINST MESSRS. SMITH & OGDEX,\nIN THE PRECEDING APRIL TERM.\nBY\nTHOMAS LLOYD, STEN\nAPHER.\nNEW-YCRK:\nPRINTED BY AND FOR I. RILEY AND CO.\nTHE\n1807.\ntries. But if the foreign power. shall itself have broken that\napprobat\namity, and shall have given just grounds of war. no government\nmust su\nouglit to omit $ providing and preparing the means\" for military\nWC dono\nenterprises nor could any Law have intended to prevent the pre-\nmeasure\nparatory efforts of individuals for subduing the public enemy-\ndefendan\nThe memorable congress that commenced your revolution did\nWe a\nnot hesitate to provide and prepare the means of meeting the\nmitigatio\nEnglish before actual war was declared nor did it censure or\nit is only\ndiscountenance those patriots. who unauthorised by any orders\nishment,\nand before the formal declaration of war, possessed themselves\nputting C\nof Ticonderoga and Crown Point.\ntrary to\nThe circumstances of the times, we have shown, justified the\ncommon\npresident in giving his approbation. and my client, under that ap-\nmatters\nprobation, in providing and preparing the means of a military the\nof the iss\nterprise against Spain. And surely no enterprise could be more\nthe fact C\nuseful or effectual for drawing the enemy from our southern and\njudge, aft\nwestern frontiers: none more worthy of the exalted and philoso\nthe cas\nphic mind of our chief magistrate; none more consonant to the\nprisonme\nenlightened and philosophic views of society and politics, which\nI verily b\nhe has exhibited to the world. than an expedition to liberan\ncase, tho\nSouth America: to destroy at once Spanish tyranny and power\nto be wo\non our own continent to enfranchise. by one effort, millions of\nprinted can\nour fellow creatures from the most frightful Londage ; and to br.\nbecause t\nthe foundations. in SO large a portion of the globe, for the free-\ncant circi\ndom and the happiness of man\n! allude 1\nPATERSON, J. You state in the affidavit that it was done with\nP. 335.\nthe knowledge and approbation of the president, but is it stated =\nsch the C\nthe affidavit that he authorized the fitting out of the expedition?\naggravati\nEinmet. I conceive it was not necessary : for though I have\ndictment\nargued upon the effects of an authorisation, it was only to show\ning so:as\nthat the argument of the adverse counsel went much too far.\nthat the f\nwhen they contended that the president could not authorise any\nnecessari\nsuch measure. For our defence, it will be only necessary tr\nse! to res\nshow that the president was under the circumstances of the\nwill find\ntimes. warranted to provide and prepare the means for a military\naggravat\nexpecition; and that in what he might do. me acted with is\ndistinctic\nknowledge and approbation. Qui prohibere potent \" NON pr.\ngraration\nhibet, juiet. The knowledge and approbation of the ci.ief г.ш-\nin mitig.\ngistrate and heads of partments. if We shall prove them to have\nthis disti\nbeen sufficiently express and positive, will amount to a justifies-\nhave a ri\ntion; but even if Hi should f.il in establishing them to that 11.\ntrary to\ntent, they. will still abord very powerful indus ements for nities\nEvidence\ning the punishment.\ncharacte\nThis is denied on the oder side: but I would ask, if it crain\nwhent ,\nbe proved that this caterja 7. was carried on against the prev.\nBut ti\ndent's express ender. would 1.01 that be matter a. gravation'\nmust ha\nII it world. su.civ the reverse must be matter of midgries-\nvery unl\nmistak.. inco WHAT :1 defendent may have been icd by the\nsuch a\n03\nSPECIAL PROSECUTOR\n28 § 591\n587. Salaries\n(2) any individual serving in a position listed in\nThe Attorney General shall fix the annual sala-\nsection 5312 of title 5;\nes of United States trustees and assistant United\n(3) any individual working in the Executive\nLates trustees at rates of compensation not to\nOffice of the President who is compensated at or\naceed the lowest annual rate of basic pay in effect\nabove a rate equivalent to level II of the Execu-\nor grade GS-16 of the General Schedule pre-\ntive Schedule under section 5313 of title 5;\ncribed under section 5332 of title 5.\n(4) any Assistant Attorney General and any\nMided Pub.L. 95-598, Title II, § 224(a), Nov. 1978, 92\nindividual working in the Department of Justice\nLat. 2664\ncompensated at a rate at or above level III of the\nExecutive Schedule under section 5314 of title 5;\n588. Expenses\n(5) the Director of Central Intelligence, the\nNecessary office expenses of the United States\nDeputy Director of Central Intelligence, and the\nrustee shall be allowed when authorized by the\nCommissioner of Internal Revenue;\nAttorney General.\n(6) any individual who held any office or posi-\nidded Pub.L. 95-598, Title II. $ 224(a), Nov. & 1978, 92\ntion described in any of paragraphs (1) through\n2664.)\n(5) of this subsection during the period consisting\nof the incumbency of the President such individu-\n589. Staff and other employees\nal serves plus one year after such incumbency,\nThe United States trustee may employ staff and\nbut in no event longer than two years after the\nther employees on approval of the Attorney Gen-\nindividual leaves office;\nral.\n(7) any individual described in paragraph (6)\n-dded Pub.L. 95-598, Title II, 224(a), Nov. 6, 1978, 92\nwho continues to hold office for not more than 90\ntat. 2664.)\ndays into the term of the next President during\nthe period such individual serves plus one year\nafter such individual leaves office;\nCHAPTER 39 -INDEPENDENT COUNSEL\n(8) the chairman and treasurer of the principal\nnational campaign committee seeking the elec-\n-C.\n91. Applicability of provisions of this chapter.\ntion or reelection of the President, and any offi-\n2. Application for appointment of independent\ncer of the campaign exercising authority at the\ncounsel.\nnational level, such as the campaign manager or\n3. Duties of the division of the court.\ndirector, during the incumbency of the President.\n+ Authority and duties of independent counsel.\n5. Reporting and congressional oversight.\n(c) Whenever the Attorney General receives in-\n6. Removal of independent counsel: termination of\nformation sufficient to constitute grounds to inves-\noffice.\ntigate that any person not described in subsection\n7. Relationship with Department of Justice.\n(b) of this section has committed a violation of any\n38. Termination of effect of chapter.\nFederal criminal law other than a violation constitu-\nAnother chapter 39. set out preceding this chapter. comprises\nting a petty offense, the Attorney General may\ntions 581 to 589 of this title.\nconduct an investigation and apply for an indepen-\nSo in original\ndent counsel pursuant to the provisions of this\nEffective Date of Chapter. Section 604 of Pub.L.\nchapter if the Attorney General determines that\n-621 provided in part that this chapter shall take effect\nOct. 26, 1978.\ninvestigation of such person by the Attorney Gen-\neral or other officer of the Department of Justice\n591. Applicability of provisions of this chap-\nmay result in a personal. financial, or political\nconflict of interest.\nter\n(a) The Attorney General shall conduct an inves-\n(Added Pub.L. 95-521, Title VI, 601(a), Oct. 26, 1978, 92\nStat. 1867, and amended Pub.L. 97-409, §§ 3, 4(a). Jan. 3.\ngation pursuant to the provisions of this chapter\n1983, 96 Stat. 2039, 2040.)\nhenever the Attorney General receives informa-\non sufficient to constitute grounds to investigate\nApplicability to Specific Information Relating to\nthat any of the persons described in subsection (b)\nPending Proceedings\nthis section has committed a violation of any\nSection 604 of Pub.L. 95-521 provided in part that the\nFederal criminal law other than a violation constitu-\nprovisions of this chapter shall not apply to specific\nting a petty offense.\ninformation received by the Attorney General pursuant to\n(b) The persons referred to in subsection (a) of\nsection 591, if the Attorney General determines that-\nthis section are-\n(1) such specific information is directly related to a\nprosecution pending at the time such specific informa-\n(1) the President and Vice President;\ntion is received by the Attorney General:\nComplete Annotation Materials, See Title 28 U.S.C.A.\n407\n28 § 591\nDEPARTMENT OF JUSTICE\nPart\n(2) such specific information is related to a matter\ndetermining whether reasonable grounds exist\nwhich has been presented to a grand jury and is re-\nwarrant further investigation or prosecution, t\nceived by the Attorney General within 180 days of\nAttorney General shall comply with the written\nOctober 26, 1978; or\nother established policies of the Department\n(3) such specific information is related to an investi-\ngation that is pending at the time such specific informa-\nJustice with respect to the enforcement of crimin\nlaws.\ntion is received by the Attorney General, and such\nspecific information is received by the Attorney General\n(2) If-\nwithin 90 days of October 26, 1978.\n(A) after the filing of a memorandum und\n§ 592. Application for appointment of a 1 inde-\nsubsection (b) of this section, the Attorney Ge\npendent counsel\neral receives additional information sufficient 1\n(a)(1) Upon receiving information that the Attor-\nconstitute grounds to investigate about the ma\nney General determines is sufficient to constitute\nter to which such memorandum related, and\ngrounds to investigate that any person covered by\n(B) the Attorney General determines, afte\nthe Act has engaged in conduct described in sub-\nsuch additional investigation as the Attorne\nsection (a) or (c) of section 591 of this title, the\nGeneral deems appropriate, that reasonabl\nAttorney General shall conduct, for a period not to\ngrounds exist to warrant further investigation o\nexceed ninety days, such preliminary investigation\nprosecution,\nof the matter as the Attorney General deems ap-\nthen the Attorney General shall, no later that\npropriate. In determining whether grounds to in-\nninety days after receiving such additional informa\nvestigate exist, the Attorney General shall con-\ntion, apply to the division of the court for the\nsider-\nappointment of I independent counsel.\n(A) the degree of specificity of the information\nreceived, and\n(d)(1) Any application under this chapter shal\ncontain sufficient information to assist the divisior\n(B) the credibility of the source of the informa--\ntion.\nof the court to select independent counsel and\nto define that independent counsel's prosecutorial\n(2) In conducting preliminary investigations pur-\njurisdiction.\nsuant to this section, the Attorney General shall\nhave no authority to convene grand juries, plea\n(2) No application or any other documents, mate\nbargain, grant immunity, or issue subpenas.\nrials, or memorandums supplied to the division of\n(b)(1) If the Attorney General, upon completion\nthe court under this chapter shall be revealed to\nof the preliminary investigation, finds there are no\nany individual outside the division of the court or\nreasonable grounds to believe that further investi-\nthe Department of Justice without leave of the\ndivision of the court.\ngation or prosecution is warranted, the Attorney\nGeneral shall so notify the division of the court\n(e) The Attorney General may ask a I indepen-\nspecified in section 593(a) of this title, and the\ndent counsel to accept referral of a matter that\ndivision of the court shall have no power to appoint\nrelates to a matter within that independent coun-\na 1 independent counsel.\nsel's prosecutorial jurisdiction.\n(2) Such notification shall be by memorandum\n(f) The Attorney General's determination under\ncontaining a summary of the information received\nsubsection (c) of this section to apply to the division\nand a summary of the results of any preliminary\nof the court for the appointment of a 1 independent\ninvestigation.\ncounsel shall not be reviewable in any court.\n(3) Such memorandum shall not be revealed to\n(Added Pub.L. 95-521, Title VI, § 601(a), Oct. 26, 1978, 92\nany individual outside the division of the court or\nStat 1868, and amended Pub.L. 97-409, §§ 2(a)(1),\nthe Department of Justice without leave of the\n4(b)-(e), Jan. 3, 1983, 96 Stat. 2039-2041.)\ndivision of the court.\nSo in original.\n(c)(1) If the Attorney General, upon completion\nReferences in Text. The Act, referred to in subsec.\nof the preliminary investigation, finds reasonable\n(a)(1), probably means the Ethics in Government Act of\ngrounds to believe that further investigation or\n1978 which enacted this chapter. For complete classifica-\nprosecution is warranted, or if ninety days elapse\ntion of that Act to the Code, see Short Title note under\nfrom the receipt of the information without 2 deter-\nsection 701 of Title 2, The Congress and Tables volume.\nmination by the Attorney General that there are no\nreasonable grounds to believe that further investi-\n§ 593. Duties of the division of the court\ngation or prosecution is warranted, then the Attor-\n(a) The division of the court to which this chapter\nney General shall apply to the division of the court\nrefers is the division established under section 49\nfor the appointment of a independent counsel. In\nof this title.\nComplete Annotation Materials, See Title 28 U.S.C.A.\n408\n39\nSPECIAL PROSECUTOR\n28 § 594\n(b) Upon receipt of an application under section\n§ 594. Authority and duties of a independent\n92(c) of this title, the division of the court shall\ncounsel\nppoint an appropriate independent counsel and\nhall define that independent counsel's prosecutori-\n(a) Notwithstanding any other provision of law,\njurisdiction. A 1 independent counsel's identity\na 1 independent counsel appointed under this chap-\nnd prosecutorial jurisdiction shall be made public\nter shall have, with respect to all matters in such\nrequest of the Attorney General or upon a\nindependent counsel prosecutorial jurisdiction es-\netermination of the division of the court that\ntablished under this chapter. full power and inde-\nisclosure of the identity and prosecutorial jurisdic-\npendent authority to exercise all investigative and\nof such independent counsel would be in the\nprosecutorial functions and powers of the Depart-\ninterests of justice. In any event the identity\nment of Justice, the Attorney General, and any\nnd prosecutorial jurisdiction of such prosecutor\nhall be made public when any indictment is re-\nother officer or employee of the Department of\nurned or any criminal information is filed.\nJustice, except that the Attorney General shall\nexercise direction or control as to those matters\n(c) The division of the court, upon request of the\nAttorney General which may be incorporated in an\nthat specifically require the Attorney General's\npplication under this chapter, may expand the\npersonal action under section 2516 of title 18.\nrosecutorial jurisdiction of an existing indepen-\nSuch investigative and prosecutorial functions and\ncounsel. and such expansion may be in lieu of\npowers shall include-\nhe appointment of an additional independent coun-\n(1) conducting proceedings before grand juries\nand other investigations;\n(d) The division of the court may not appoint as\n(2) participating in court proceedings and en-\n! independent counsel any person who holds or\ngaging in any litigation, including civil and crimi-\necently held any office of profit or trust under the\nInited States.\nnal matters, that such independent counsel\ndeems necessary;\n(e) If a vacancy in office arises by reason of the\nesignation or death of a 1 independent counsel, the\n(3) appealing any decision of a court in any\nlivision of the court may appoint a independent\ncase or proceeding in which such independent\nounsel to complete the work of the independent\ncounsel participates in an official capacity:\nounsel whose resignation or death caused the va-\n(4) reviewing all documentary evidence availa-\nancy. If a vacancy in office arises by reason of\nble from any source;\nhe removal of a independent counsel, the division\n(5) determining whether to contest the asser-\nthe court may appoint an acting independent\nounsel to serve until any judicial review of such\ntion of any testimonial privilege:\nemoval is completed. Upon the completion of\n(6) receiving appropriate national security\nuch judicial review. the division of the court shall\nclearances and, if necessary, contesting in court\nake appropriate action.\n(including, where appropriate, participating in in\n(f) Upon a showing of good cause by the Attor-\ncamera proceedings) any claim of privilege or\nGeneral, the division of the court may grant a\nattempt to withhold evidence on grounds of na-\ningle extension of the preliminary investigation\ntional security;\nonducted pursuant to section 592(a) of this title\n(7) making applications to any Federal court\n2 period not to exceed sixty days.\nfor a grant of immunity to any witness, consist-\n(g) Upon request by the subject of an investiga-\nent with applicable statutory requirements, or\non conducted by an independent counsel pursuant\nfor -warrants, subpenas, or other court orders,\nthis chapter, the division of the court may, in its\nand. for purposes of sections 6003, 6004, and\nscretion, award reimbursement for all or part of\nattorney's fees incurred by such subject during\n6005 of title 18. exercising the authority vested\nuch investigation if-\nin a United States attorney or the Attorney Gen-\n(1) no indictment is brought against such sub-\neral;\nject: and\n(8) inspecting, obtaining, or using the original\n(2) the attorney's fees would not have been\nor a copy of any tax return. in accordance with\nincurred but for the requirements of this chap-\nthe applicable statutes and regulations, and, for\nter.\npurposes of section 6103 of the Internal Revenue\n.dded Pub.L. 95-521, Title VI, § 601(a), Oct. 26, 1978, 92\nCode of 1954, and the regulations issued thereun-\nat 1869, and amended Pub.L. 97-409, §§ 2(a)(1), 5, Jan.\nder, exercising the powers vested in a United\n1983, 96 Stat. 2039, 2041.)\n: So in original.\nStates attorney or the Attorney General;\nSo in original. Substitution of \"counsel\" for \"prosecutor\" was\n(9) initiating and conducting prosecutions in\n: made by Pub.L. 97-409.\nany court of competent jurisdiction, framing\nComplete Annotation Materials, See Title 28 U.S.C.A.\n409\n28 § 594\nDEPARTMENT OF JUSTICE\nPart\nand signing indictments. filing informations. and\nReferences in Text Section 6103 of the Internal Rev\nhandling all aspects of any case in the name of\nnue Code of 1954. referred to in subsec. (aM8), is classific\nthe United States; and\nto Title 26. U.S.C.A., $ 6103.\n(10) consulting with the United States Attor-\n§ 595. Reporting and congressional oversigl\nney for the district in which the violation was\nalleged to have occurred.\n(a) A 1 independent counsel appointed under th\nchapter may make public from time to time, ar\n(b) A independent counsel appointed under this\nshall send to the Congress statements or reports C\nchapter shall receive compensation at a per diem\nthe activities of such independent counsel. Thes\nrate equal to the annual rate of basic pay for level\nstatements and reports shall contain such inform\nIV of the Executive Schedule under section 5315 of\ntion as such independent counsel deems appropi\ntitle 5.\nate.\n(c) For the purposes of carrying out the duties of\n(b)(1) In addition to any reports made under sul\nthe office of independent counsel, a independent\nsection (2) of this section, and before the termin:\ncounsel shall have power to appoint, fix the com-\ntion of a 1 independent counsel's office under se\npensation, and assign the duties, of such employees\ntion 596(b) of this title, such independent couns\nas such independent counsel deems necessary (in-\nshall submit to the division of the court a repor\ncluding investigators, attorneys, and part-time con-\nunder this subsection.\nsultants). The positions of all such employees are\n(2) A report under this subsection shall set fort\nexempted from the competitive service. No such\nfully and completely a description of the work C\nemployee may be compensated at a rate exceeding\nthe maximum rate provided for GS-18 of the Gen-\nthe independent counsel, including the dispositio\neral Schedule under section 5332 of title 5.\nof all cases brought, and the reasons for not pros\ncuting any matter within the prosecutorial jurisdi\n(d) A independent counsel may request assist-\ntion of such independent counsel which was no\nance from the Department of Justice, and the De-\nprosecuted.\npartment of Justice shall provide that assistance.-\n(3) The division of the court may release to th\nwhich may include access to any records, files. or\nCongress. the public. or to any appropriate person\nother materials relevant to matters within such\nsuch portions of a report made under this subset\nindependent counsel's prosecutorial jurisdiction,\ntion as the division deems appropriate. The div\nand the use of the resources and personnel neces-\nsion of the court shall make such orders as ar\nsary to perform such independent counsel's duties.\nappropriate to protect the rights of any individua\n(e) A ! independent counsel may ask the Attor-\nnamed in such report and to prevent undue inter\nney General or the division of the court to refer\nference with any pending prosecution. The div\nmatters related to the independent counsel's prose-\nsion of the court may make any portion of a repor\ncutorial jurisdiction. A independent counsel's\nunder this section available to any individual name\nmay accept referral of a matter by the Attorney\nin such report for the purposes of receiving withi\nGeneral. if the matter relates to a matter within\na time limit set by the division of the court an\nsuch independent counsel's prosecutorial jurisdic-\ncomments or factual information that such individ\ntion as established by the division of the court. If\nual may submit. Such comments and factual infor\nsuch a referral is accepted, the independent counsel\nmation. in whole or in part, may in the discretion 0\nshall notify the division of the court.\nsuch division be included as an appendix to suc\n(f) A ] independent counsel shall. except where\nreport.\nnot possible, comply with the written or other es-\n(c) A 1 independent counsel shall advise th\ntablished policies of the Department of Justice re-\nHouse of Representatives of any substantial an\nspecting enforcement of the criminal laws.\ncredible information which such independent cour\n(g) The independent counsel shall have full au-\nsel receives that may constitute grounds for a\nthority to dismiss matters within his prosecutorial\nimpeachment. Nothing in this chapter or sectio\njurisdiction without conducting an investigation or\n49 of this title shall prevent the Congress or eithe\nat any subsequent time prior to prosecution if to do\nHouse thereof from obtaining information in th\nso would be consistent with the written or other\ncourse of an impeachment proceeding.\nestablished policies of the Department of Justice\n(d) The appropriate committees of the Congres\nwith respect to the enforcement of criminal laws.\nshall have oversight jurisdiction with respect to th\n(Added Pub.L. 95-521, Title VI, § 601(a), Oct. 26, 1978, 92\nofficial conduct of any independent counsel appoin\nStat 1869, and amended Pub.L. 97-409, §§ 2(a)(1),\ned under this chapter, and such independent cour\n6(a)-(c), Jan. 3, 1983, 96 Stat. 2039, 2041.)\nsel shall have the duty to cooperate with the exe\n1 So in original.\ncise of such oversight jurisdiction.\nComplete Annotation Materials, See Title 28 U.S.C.A.\n410\nCh. 39\nSPECIAL PROSECUTOR\n28 § 597\n(e) A majority of majority party members or a\ncommenced before the division of the court and, if\nmajority of all nonmajority party members of the\nsuch removal was based on error of law or fact,\nCommittee on the Judiciary of either House of the\nmay obtain reinstatement or other appropriate re-\nCongress may request in writing that the Attorney\nlief. The division of the court shall cause such an\nGeneral apply for the appointment of a indepen-\naction to be in every way expedited.\ndent counsel. Not later than thirty days after the\n(b)(1) An office of independent counsel shall ter-\nreceipt of such a request, or not later than fifteen\nminate when (A) the independent counsel notifies\ndays after the completion of a preliminary investi-\nthe Attorney General that the investigation of all\ngation of the matter with respect to which the\nrequest is made, whichever is later, the Attorney\nmatters within the prosecutorial jurisdiction of\nGeneral shall provide written notification of any\nsuch independent counsel or accepted by such inde-\naction the Attorney General has taken in response\npendent counsel under section 594(e) of this title,\nto such request and, if no application has been\nand any resulting prosecutions, have been complet-\nmade to the division of the court, why such applica-\ned or so substantially completed that it would be\ntion was not made. Such written notification shall\nappropriate for the Department of Justice to com-\nbe provided to the committee on which the persons\nplete such investigations and prosecutions and (B)\nmaking the request serve. and shall not be revealed\nthe independent counsel files a report in full com-\nto any third party, except that the committee may,\npliance with section 595(b) of this title.\neither on its own initiative or upon the request of\n(2) The division of the court, either on its own\nthe Attorney General, make public such portion or\nmotion or upon suggestion of the Attorney Gener-\nportions of such notification as will not in the\nal, may terminate an office of independent counsel\ncommittee's judgment prejudice the rights of any\nat any time, on the ground that the investigation of\nindividual.\nall matters within the prosecutorial jurisdiction of\n(Added Pub.L. 95-521. Title VI. § 601(a), Oct. 26, 1978. 92\nthe independent counseLor accepted by such inde-\nStat. 1871. and amended Pub.L. 97-409 § 2(a)(1), Jan. 3.\npendent counsel under section 594(e) of this title,\n1983. 97 Stat. 2039.)\nand any resulting prosecutions, have been complet-\n: So in original\ned or SO substantially completed that it would be\n§ 596. Removal of a independent counsel;\nappropriate for the Department of Justice to com-\nplete such investigations and prosecutions. At the\ntermination of office\ntime of termination, the independent counsel shall\n(a)(1) A 1 independent counsel appointed under\nfile the report required by section 595(b) of this\nthis chapter may be removed from office, other\ntitle.\nthan by impeachment and conviction, only by the\npersonal action of the Attorney General and only\n(Added Pub.L. 95-521, Title VI, § 601(a), Oct. 26, 1978. 92\nStat. 1872, and amended Pub.L. 97-409, §§ 2(a)(1), 6(d),\nfor good cause, physical disability, mental incapaci-\nJan. 3, 1983, 96 Stat. 2039, 2042.)\nty, or any other condition that substantially impairs\nSo in original.\nthe performance of such independent counsel's\nduties.\n§ 597. Relationship with Department of Jus-\n(2) If a 1 independent counsel is removed from\ntice\noffice, the Attorney General shall promptly submit\nto the division of the court and the Committees on\n(a) Whenever a matter is in the prosecutorial\nthe Judiciary of the Senate and the House of Rep-\njurisdiction of a independent counsel or has been\nresentatives a report specifying the facts found\naccepted by a I independent counsel under section\nand the ultimate grounds for such removal. The\n594(e) of this title, the Department of Justice, the\ncommittees shall make available to the public such\nAttorney General, and all other officers and em-\nreport, except that each committee may, if neces-\nployees of the Department of Justice shall suspend\nsary to protect the rights of any individual named\nall investigations and proceedings regarding such\nin the report or to prevent undue interference with\nmatter, except to the extent required by section\nany pending prosecution, delete or postpone pub-\n594(d) of this title, and except insofar as such\nlishing any or all of the report. The division of the\nindependent counsel agrees in writing that such\ncourt may release any or all of such report in the\ninvestigation or proceedings may be continued by\nsame manner as a report released under section\nthe Department of Justice.\n595(b)(3) of this title and under the same limitations\n(b) Nothing in this chapter shall prevent the At-\nas apply to the release of a report under that\ntorney General or the Solicitor General from mak-\nsection.\ning a presentation as amicus curiae to any court as\n(3) A 1 independent counsel so removed may ob-\nto issues of law raised by any case or proceeding in\ntain judicial review of the removal in a civil action\nwhich a independent counsel participates in an\nComplete Annotation Materials, See Title 28 U.S.C.A.\n411\n28 § 597\nDEPARTMENT OF JUSTICE\nPart 2\nofficial capacity or any appeal of such a case or\nthen pending matters before a : independent coun-\nproceeding.\nsel that in the judgment of such special counsel\n(Added PubL 95-521. Title VI. § 601(a). Oct. 26. 1978. 92\nrequire such continuation until that independent\nStat. 1872. and amended Pub.L. 97-409. § 2(a)(1)(A), Jan.\ncounsel determines such matters have been com-\n3. 1983. 96 Stat. 2039.)\npleted.\n: So in original.\n(Added Pub.L. 95-521, Title VI. § 601(a). Oct. 26, 1978. 92\nStat. 1873. and amended Pub.L. 97-409. §§ 7.\n§ 598. Termination of effect of chapter\nJan. 3. 1983. 96 Stat. 2039. 2042.)\n: So in original\nThis chapter shall cease to have effect five years\nReferences in Text. The date of enactment of the\nafter the date of the enactment of the Ethics in\nEthics in Government Act Amendments of 1982. referred\nGovernment Act Amendments of 1982, except that\nto in text. is the date of enactment of Pub.L. 97-409.\nthis chapter shall continue in effect with respect to\nwhich was approved on Jan. 3. 1983.\nComplete Annotation Materials, See Title 28 U.S.C.A.\n412\nADDENDUM C\n§ 960.\nExpedition against friendly nation\nWhoever, within the United States, knowingly begins or sets on foot\nor provides or prepares a means for or furnishes the money for, or\ntakes part in, any military or naval expedition or enterprise to be\ncarried on from thence against the territory or dominion of any for-\neign prince or state, or of any colony, district, or people with whom\nthe United States is at peace. shall be fined not more than $3,000 or\nimprisoned not more than three years, or both.\nJune 25, 1948, c. 645, 62 Stat. 745.\nHistorical and Revision Notes\nReviser's Note. Based on Title 18. U.\nReference to territory or possessions of\nS.C.. 1940 ed., I 25 (Mar. 4, 1909 C. 321, $ the United States was omitted as covered\n13. 35 Stat. 1090: June 15. 1917. C. 30, Ti- by definitive section 5 of this title.\ntie V. $8. 40 Stat. 223).\nCanal Zone. Applicability of section to\nWords \"within the United States\" were\nCanal Zone. see section 14 of this title.\nsubstituted for \"within the jurisdiction\"\netc.. in view of the definition of United\nStates in section 5 of this title."
}