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Iran/Arms Transaction: Legal Memoranda - Nicaraguan Contra Aid [Boland Amendment]
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Iran/Arms Transaction: Legal Memoranda - Nicaraguan Contra Aid [Boland Amendment]
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Arthur Culvahouse's Office Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Culvahouse, Arthur B.: Files
Folder Title: Iran/Arms Transaction: Legal
Memoranda - Nicaraguan Contra Aid [Boland
Amendment] (1)
Box: CFOA 1131
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
new file
September 17, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
RICHARD A. HAUSER RAS
SUBJECT:
"Neutrality Act"
Attached, as requested, is a copy of 18 USC $960, the so-called
"Neutrality Act", along with a copy of a recent New York Times
article on issues relating to this statute, and relevant sections
of the Department of Justice's brief in Dellums V. Smith.
Attachments
A
18 § 959
CRIMES
Pt. 1
Note 14
Ch
country. and from the action of third
16. Examination of witnesses
persons with whom he perfects the en-
The persons alleged to have been hired
Gen
listment which he may have contracted in
may testify as to their intent without
Act
the United States. U. S. v. Hertz. C.C.
criminating themselves. U. S. V. Kazin-
Pa.1855, 3 Pittsb.Leg.J.(Pa.) 194, 26 Fed.
ski, D.C.Mass.1855, 2 Sprague 7, 26 Fed.
Cas.No.15.357.
Cas.No.15,508.
13. Weight and sufficiency of evidence
17. Verdict
In a proceeding to remove a person to
On a trial for violation of former sec-
another state in which he was indicted
tion 22 of this title [now this section]
for conspiring to retain a citizen to enlist
the court had no power (i) direct the
in the Mexican revolutionary forces. evi-
jury to return a verdict of guilty, pursu-
dence tended to show a violation of
ant to an agreed statement of facts be.
former section 22 of this title [now this
tween the government and the defendant.
section] and to show probable cause for
regardless of the jury's own view re-
believing defendant guilty of conspiring
specting the proper conclusion to be
to compass such violation. Gayon V.
drawn from the facts agreed upon. Blair
McCarthy, N.Y.1920. 40 S.Ct. 2H. 252 U.S.
V. U. S.. Cal.1917. 241 F. 217. 134 C.C.A.
171. 64 L.Ed. 513.
137.
§ 960.
Expedition against friendly nation
Whoever, within the United States. knowingly begins or sets on foot
or provides or prepares a means for or furnishes the money for. or
takes part in, any military or naval expedition or enterprise to be
carried on from thence against the territory or dominion of any for-
eign prince or state. or of any colony. district. or people with whom
the United States is at peace, shall be fined not more than $3,000 or
imprisoned not more than three years, or both.
June 25, 1948, c. 645, 62 Stat. 745.
Historical and Revision Notes
Reviser's Note. Based on Title 18. C.
Reference to territory or possessions of
S.C.. 1940 ed., $ 25 (Mar. +. 1909. c. 321, $
the United States was smitted as covered
13. 35 Stat. 1090: June 15. 1917. c. 30. Ti-
by definitive section 5 of this title.
tie V. 15. 40 Stat. 223).
Canal Zone. Applicability of section
Words "within the United States" were
Canal Zone. see section 11 of this title.
substituted for "within the jurisdiction"
etc., in view of the definition of United
States in section 5 of this title.
Cross References
Foreign translents, application of section to, see section 959 of this title
Jurisdiction of offenses. see section 3241 of this title.
Letters. writings. etc.. in violation of this section as nonmailable. -08 section 1717
of this ritle.
Library References
International Law $10.18.
C.J.S. International Law $ 16.
Notes of Decisions
I. GENERALLY 1-30
II. OFFENSES 31-60
III. PROSECUTION AND PUNISHMENT 61-71
300
B
DATE:
9-12-84
The New York Times
PAGE:
BIO
Neutrality and Private Adventures
By STUART TAYLOR Jr.
ment's chief spokesman, explained
to avoid the appearance of circum-
Monday that the Administration de-
venting Congressional restrictions.
Special to The New Yort Times
cided earlier this year not to discour-
But the more the Administration
WASHINGTON, Sept. 11 - The
neutrality laws, enacted almost two
age "legal" private American sup-
argues that private groups support-
centuries ago to bar the organizing in
port of the rebels in Nicaragua sup-
ing military attacks are acting on
ported by the Central Intelligence
their own, the more its critics de-
the United States of private military
Agency.
mand that it prosecute the private
attacks against other nations, have
Asked today what kind of support
groups under the neutrality laws.
become something of a headache for
American policymakers in the era of
was legal, two other State Depart-
Washington Supported It
ment officials, who refused to speak
covert intelligence operations.
The Neutrality Act of 1794, the
If read broadly today, as they were
provision most often cited by critics
by some courts in the 19th and early
of the legality of the Administration's
20th centuries, these laws could make
Core of issue is use
support for attacks on Nicaragua,
it a crime for people in the United
was enacted with President Washing-
States, perhaps including the Presi-
ton's support to prevent the weak new
dent, to provide financial and other
of third country
country from being dragged into for-
eign conflicts by adventurers.
support for Nicaraguan rebels.
as launching point.
The law states: "Whoever, within
Some Congressional Democrats,
the United States, knowingly begins
Nicaragua's Sandinista Govern-
or sets on foot or provides or prepares
ment, have taken precisely this posi-
a means for or furnishes the money
tion in the controversy that has flared
for, or takes part in, any military or
anew since two Americans were
for attribution, said that in the Ad-
naval expedition or enterprise to be
killed in Nicaragua Sept. 1. Their
ministration's view the neutrality
carried on from themce against the
belicopter was downed in a rebel raid
laws prohibited only the direct
territory or dominiom of any foreign
from Honduras into Nicaragua.
launching of private military expedi-
prince or state, or of any colony, dis-
But administrations in the modern
tions from the United States, not the
trict or people with whom the United
era have not read the neutrality laws
provision of financial or other support
States is at peace, shall be fined not
broadly. "Clearly they were not de-
to insurgencies or military expedi-
more than $3,000 or imprisoned not
signed for the kind of situation which
tions launched from third countries.
more than three years, or both."
exists in the world today," an Attor-
This logic would immunize from
The law was applied quite broadly
ney General once said.
prosecution those who raised money
by several lower Federal courts in the
Nothing Criminal' Noted
in the Unitd States to send to Nicara-
19th and early 20th centuries. For ex-
"Nor is an individual prohibited
guan rebels in third countries-sucifes
ample, in a 1921 decision, several peo-
Honduras and those who traveled to
from departing from the United
ple were convicted of conspiring in
such countries to enlist in forces at-
the United States, in World War I, to
States, with others of like belief, to
join still others in a second country
tacking Nicaragua.
launch an invasion of India from
for an expedition against a third coun-
Attorney General William French
Thailand and the Phillipines.
Smith has also argued in a pending
But the law has been used in only a
try. There is nothing criminal in an
lawsuit that the neutrality laws do not
individual leaving the United States
handful of prosecutions in recent dec-
apply to the President or other offi-
ades. And the archaic flavor of the
with the intent of joining an insurgent
group There is nothing criminal in
cials supporting private military
language suggests the difficulty of ap-
his urging others to do so."
operations abroad that are part of the
plying this law in a world very differ-
President's "official foreign policy."
ent from the one for which it was writ-
That Attorney General was Robert
F. Kennedy. He was explaining after
Judge Orders and Inquiry
ten. It contains ambiguities enough to
the failure of the Bay of Pigs invasion
Judge Stanley A. Weigel of Federal
provide grist for both sides.
in 1961 why there was DO problem
District Court in San Francisco dis-
And Representative Don Edwards,
under the neutrality laws with organ-
agreed last year, saying that the neu-
Democrat of California, accused the
izing of Cuban exiles in the United
trality laws were intended in part to
Administration this week of "selec-
States to make a military attack on
keep the President from entangling
tive enforcement of the laws" by con-
Cuba, with Central Intelligence
the nation in hostilities without a Con-
doning private support for the Nica-
Agency support. After all, Mr. Ken-
gressional declaration of war.
ragua rebels.
nedy reasoned, the immediate base
Judge Weigel ordered a special in-
But one of the two State Depart-
for the operation was Central Amer-
vestigation to determine whether
ment officials said today that the Ad-
ica, not the United States.
President Reagan and others had vio-
ministration's consistency in taking a
Judy Pond, & Justice Department
lated criminal neutrality laws by sup-
narrow approach to the neutrality
spokesman, refused to comment to-
porting rebel attacks against Nicara-
laws was illustrated by its not prose-
day when asked whether it violated
gua, even though Congress appropri-
cuting groups raising money for left-
the neutrality laws for private Amer-
ated $24 million for covert operations
ist rebels in El Salvador, the Irish Ra
ican groups to help finance and join in
for the 1984 fiscal year. A Justice De-
publican Army or other bostile for
military attacks on Nicaragua, as did
partment appeal is pending.
eign rebels either.
two Americans.
Meanwhile, Congress seems un-
"These guys are fairly clever and
But while the Federal Bureau of In-
likely to appropriate funds for covert
they get lawyers to stay clear of any
vestigation has reportedly investi-
operations in Nicaragua for the 1985
violations of the laws,' this official
gated such activities, the narrow
fiscal year, which begins Oct. 1.
said. "Occasionally we catch some-
Kennedy interpretation of the neu-
While the Administration says it has
body who was dumb enough to launch
trality laws seems to have some ap-
decided not to discourage private
his expedition from the United States
peal to the Reagan Administration.
groups from stepping in to support
rather than from some other country,
John Hughes, the State Depart-
the Nicaraguan rebels, it has sought
but not very often."
DOJ 1983-04
8
C
No. 84-1525
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD V. DELLUMS, et al.,
Plaintiffs-Appellees,
V.
WILLIAM FRENCH SMITH,
U.S. Attorney General, et al.
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF FOR THE APPELLANTS
RICHARD K. WILLARD
Acting Assistant Attorney
General
JOSEPH P. RUSSONIELLO
United States Attorney
LEONARD SCHAITMAN
JOHN F. CORDES
HAROLD J. KRENT
Attorneys,
Civil Division-Appellate
Staff, Room 3127
Department of Justice
Washington, D.C. 20530
Telephone: FTS 633-4214
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 84-1525
RONALD V. DELLUMS, et al.,
Plaintiffs-Appellees,
V.
WILLIAM FRENCH SMITH,
U.S. Attorney General, et al.
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF FOR THE APPELLANTS
QUESTIONS PRESENTED
1. Whether the Ethics in Government Act, which establishes a
special procedure for investigating and prosecuting criminal
allegations against high-level government officials, confers
standing to sue on private persons, or permits private judicial
enforcement actions.
2. Whether the Attorney General reasonably concluded that the
Neutrality Act of 1794 does not criminalize acts of government
officials taken in pursuit of official foreign policy objectives.
3. Whether the legality of the President's policy toward
Nicaragua poses a justiciable question.
STATEMENT OF THE CASE
1. Jurisdiction
A. The district court exercised jurisdiction under the
general federal question jurisdictional grant, 28 U.S.C. § 1331.
B. This Court possesses jurisdiction under 28 U.S.C. § 1291,
the provision allowing appeals from district court final decisions.
C. The district court order is properly appealable, as it
completely disposes of the case.
D. The appeal is timely. The district court entered judgment
on November 3, 1983. The government filed a timely motion to alter
the judgment under FED.R.CIV.P. 59 (e). The district court entered
an order denying that motion on January 10, 1984. The government
filed a notice of appeal on that same day. The appeal, therefore,
was timely under FED.R.APP.P. 4(a)(4).
,
2. Nature of the Case
=
The Ethics in Government Act requirës the Attorney General to
conduct a preliminary criminal investigation of high-level
government officials upon receiving incriminating information that
the Attorney General determines is sufficiently specific and
credible. 28 U.S.C. §§ 591-592. The Attorney General then must
notify a special division of the District of Columbia Circuit
either that no further investigation is warranted or that
independent counsel should be appointed to pursue the matter
further. 28 U.S.C. § 592 (b) (1), (c) (1).
In this case, the district court ordered the Attorney General
to conduct a "preliminary investigation" under the Ethics Act (ER
- 2 -
206-07)
1 The court based its decision on plaintiffs' claim that
the President and various, Cabinet officers had violated the
Neutrality Act of 1794 (18 U.S.C. § 960) in "supporting
paramilitary operations against Nicaragua" (ER 171). The district
court issued two opinions rejecting the government's arguments that
(1) private persons lack standing to enforce the Ethics Act, (2)
the Attorney General's Ethics Act decisions are unreviewable, (3)
the Neutrality Act issue involves sensitive foreign policy concerns
and therefore is non-justiciable, and (4) in any event, the
Attorney General reasonably has construed the Neutrality Act not to
apply to official government activities.
The government took an immediate appeal (ER 327), and obtained
a stay pending appeal from this Court (ER 328).
3. The Ethics In Government Act
The Ethics in Government Act was enacted in 1978, and amended
in 1983. The portions of the Act applicable to this case establish
an investigatory and prosecutorial procedure for handling criminal
allegations against high-ranking government officials. 28 U.S.C.
§§ 49, 591-598. The Ethics Act applies to criminal allegations
against the President and Vice President, cabinet-level officers,
and certain other high-ranking government officials or participants
in presidential campaigns. 28 U.S.C. § 591(a), (b).
The Act states that, "[u]pon receiving information that the
Attorney General determines is sufficient grounds to investigate *
* * the Attorney General shall conduct, for a period not to exceed
1
"ER" stands for the Excerpts of Record we have filed
pursuant to Local Rule 13(a).
- 3 -
ninety days, such preliminary investigation of the matter as the
Attorney General deems appropriate." 28 U.S.C. § 592 (a) (1). "In
determining whether grounds to investigate exist, the Attorney
General shall consider -- (A) the degree of specificity of the
information received, and (B) the credibility of the source of the
information." 28 U.S.C. § 592(a)(1). After completing the
preliminary investigation, the Attorney General must notify a
special division of the District of Columbia Circuit, established
for the purpose of appointing independent counsel. 28 U.S.C. §§
49, 592 (b), (c).
The Attorney General's notification is to indicate either that
"no further investigation or prosecution is warranted," in which
case "the court shall have no power to appoint an independent
counsel" (28 U.S.C. § 592(b)(1)), or that "further investigation or
prosecution is warranted," in which case "the Attorney General
shall apply to the division of the court for the appointment-of an
independent counsel" (28 U.S.C. § 592(c)(1)). Such applications
"shall not be reviewable in any court." 28 U.S.C. § 592(f). In
addition, whether the Attorney General applies for appointment of
independent counsel or not, the Attorney General's report to the
special court may not be revealed "without leave of the ***
court." 28 U.S.C. §§ 592 (b) (3), (d) (2).
When the special court receives an application for appointment
of independent counsel, it must "appoint an appropriate independent
counsel and *** define that independent counsel's prosecutorial
jurisdiction." 28 U.S.C. § 593(b). The independent counsel "shall
have *** full power and independent authority to exercise all
investigative and prosecutorial functions and powers of the
- 4 -
Department of Justice ***." 28 U.S.C. § 594 (a). The
independent counsel must, "except where not possible, comply with
the *** established policies of the Department of Justice
respecting enforcement of the criminal laws." 28 U.S.C. § 594(f).
The Ethics Act also establishes an alternate triggering
mechanism. "A majority of majority party members or a majority of
all nonmajority party members of the Committee on the Judiciary of
either House of the Congress may request in writing that the
Attorney General apply for the appointment of an independent
counsel." 28 U.S.C. § 595(e). The Attorney General must make a
written response to the Congressional committee inquiry within 30
days of its receipt, or within 15 days of the completion of a
preliminary investigation, whichever deadline is later. Ibid. The
Attorney General's written response is to remain confidential
unless the Congressional committee chooses to make it public-upon a
finding of no prejudice to the rights of-any individual. Ibid.
4. This Litigation
On January 27, 1983, the three individuals who now are
plaintiffs in this lawsuit -- a Congressman from California (Ronald
V. Dellums), a resident of Florida (Eleanor Ginsberg), and a
resident of Nicaragua (Dr. Myrna Cunningham) -- submitted a letter
to the Attorney General demanding appointment of a "special
prosecutor" under the Ethics in Government Act (ER 18-23). The
letter claimed that seven public officials covered by the Ethics
Act had violated federal criminal law: President Ronald Reagan, ex-
Secretary of State Alexander M. Haig, Jr., current Secretary of
State George P. Shultz, Assistant Secretary of State Thomas O.
Enders, Secretary of Defense Caspar Weinberger, Deputy Assistant
- 5 -
Secretary of Defense Nestor Sanchez, and Director of Central
Intelligence William Casey (ER 18).
These officials' purported "crimes" arise out of the United
States' Central American policy, particularly its allegedly
improper backing of an insurgency in Nicaragua (ER 18-23).
Plaintiffs' January 27, 1983, letter 2 detailed numerous military-
type activities allegedly taken by the United States government in
furtherance of its Nicaragua policy, and concluded that public
officials who participate in supporting non-wartime military
operations against a foreign government are guilty of criminal
misconduct (ER 19-22). Plaintiffs cited Criminal Code provisions
that bar (1) military action against a foreign nation with whom the
United States is at peace (the Neutrality Act, 18 U.S.C. § 960),
(2) conspiracy to destroy foreign government property (18 U.S.C. §
956), and (3) transportation of firearmstin foreign commerce- (18
U.S.C. $ 922) (ER 22-23).
On March 18, 1983, the then-Assistant Attorney General for the
Criminal Division, D. Lowell Jensen, sent a letter to plaintiffs
denying their request for appointment of a "special prosecutor" (ER
67). Mr. Jensen explained that the "material you provide does not.
constitute specific information of a federal offense 'sufficient to
constitute grounds to investigate' as required by the Ethics in
2
Plaintiffs attached to their letter a copy of the complaint
they and others had filed in Sanchez-Espinoza V. Reagan, No. 82-
3395 (D.D.C.) (ER 24-66). The Sanchez-Espinoza complaint sought
damages and injunctive relief for the government's allegedly
illegal Nicaragua policy. The district court, however,
dismissed the complaint under the political question doctrine.
Sanchez-Espinoza V. Reagan, 568 F. Supp. 596 (D.D.C. 1983)
appeal pending, No. 83-1997 (D.C. Cir.).
- 6 -
Government Act as amended on January 3, 1983" (ER 67).
Several months later, in July, 1983, plaintiffs filed this
lawsuit against the Attorney General, William French Smith, and
3
against Assistant Attorney General Jensen (ER 1-17).
The
complaint alleges that plaintiffs' January 27 submission to the
Attorney General presented sufficient information of criminal
violations by the President and senior Administration officials to
warrant a "preliminary investigation" under the Ethics Act (ER 4-
5). The complaint points to a variety of injuries resulting from
the alleged violations (ER 3). Plaintiff Dellums claims, as a
member of Congress, a deprivation "of his constitutional right to
participate in the decision to declare war, grant letters of marque
and reprisal, and raise and support armies" (Id.). Plaintiff
Ginsberg, who lives in Florida where plaintiffs say there are
paramilitary training camps, claims a "nuisance," and the loss "of
her right to the peaceful enjoyment of her property" (Id.)
Plaintiff Cunningham claims "kidnapping and rape at the hands of
insurgent forces" in Nicaragua that were "trained, armed, and
funded at the direction of the President and other U.S. officials
*
**" (Id.). Based on these allegations, plaintiffs' complaint
demanded a preliminary investigation under the Ethics Act, or
alternatively, appointment of independent counsel (ER 16).
5. District Court Decisions
On November 3, 1983, the district court entered summary
3
Stephen S. Trott now has succeeded Mr. Jensen as Assistant
Attorney General for the Criminal Division, and pursuant to
FED.R.APP.P. 43 (c) he should be substituted for Mr. Jensen as a
defendant in this lawsuit.
- 7 -
judgment for plaintiffs (ER 206-07). The judgment required the
Attorney General, by February 1, 1984, to conduct and complete a
"preliminary investigation *** relating to violations of the
I
Neutrality Act, 18 U.S.C. § 960" (Id.). The court reasoned
that plaintiffs' claim of Neutrality Act violations was
"sufficiently specific" and "credible" to warrant an Ethics Act
investigation (ER 174). The court stressed that it was not
declaring "illegal any action by the President or his
subordinates," only "that the Executive actions alleged by
plaintiffs, if true, may violate federal law" (ER 174, 204).
The district court rejected the government's argument that the
Ethics Act does not contemplate private enforcement suits (ER 177-
90). The court acknowledged that plaintiffs' claims of harm from
"the underlying criminal acts" were too "speculative" to confer
standing to sue (ER 200). The court found "the requisite interest
for standing, " however, in the Ethics Act itself -- which,
according to the district court, grants "all members of the public"
a "procedural right" that incriminating information they submit
"will be forwarded and considered by appropriate decisionmakers"
(ER 178-80). The court concluded from this, despite the Ethics
Act's failure expressly to authorize private suits, that "Congress
conferred upon [plaintiffs] a right to a judicial determination"
(ER 180). The court also held that the Attorney General's refusal
to conduct an Ethics Act investigation is reviewable because of the
Administrative Procedure Act's "strong presumption of the right to
judicial review" (ER 184 et seq.). Absent private enforcement
suits, the district court believed, the Ethics Act would be
rendered "a nullity" (ER 183).
- 8 -
Finally, the court rejected the government's "political
question" argument that the judiciary ought not adjudicate
sensitive foreign policy matters (ER 190-94). The court reasoned
that plaintiffs' suit does "not directly challenge the legality of
any action taken by the President," but "seek[s] only to compel
good faith performance of a statutory duty" (ER 192).
The government immediately filed a motion under FED.R.CIV.P.
59 (e) to alter the district court's judgment (ER 208-44). The
government argued that the Attorney General reasonably had
concluded that the Neutrality Act does not apply to official
government activities, thus obviating any need for an Ethics Act
investigation (Ibid.). The district court rejected the
government's position (ER 305-21). Relying on the "history of the
Neutrality Act and judicial precedent," the court found that
plaintiffs' "contention that the Neutrality Act reaches executive
officials is at least as persuasive as defendants' claim that it
does not" (ER 309, 314). The court also concluded that various
indications that Congress had sanctioned the government's Nicaragua
policy through legislation "do not justify the Attorney General's
refusal to conduct a preliminary investigation" (ER 313-14).
The government promptly took an appeal (ER 327). After the
district court refused to stay its judgment pending the appeal (ER
322-26), the government on January 25, 1984, obtained a stay from
this Court (Pregerson and Kennedy, JJ.) (ER 328).
STATUTORY PROVISIONS INVOLVED
The text of the Ethics in Government Act (28 U.S.C. §§ 591-98)
and of the Neutrality Act (18 U.S.C. § 960) is reproduced in an
addendum to this brief.
- 9 -
II. THE NEUTRALITY ACT DOES NOT REACH THE CONDUCT OF
GOVERNMENT OFFICIALS ACTING PURSUANT TO OFFICIAL
GOVERNMENT POLICY
Introduction
The district court held that plaintiffs' allegations "could
*
&
7. reasonably be construed as involving a federal crime" under
the Neutrality Act, and therefore, that the Attorney General had
no choice but to conduct a preliminary investigation (ER 309).
But the Attorney General, the nation's chief law enforcement
officer, must determine as a threshold matter under the Ethics
Act whether the facts alleged amount to a criminal violation.
The statute makes clear that a preliminary investigation is only
necessary upon receipt of "information that the Attorney General
determines is sufficient to constitute grounds to investigate."
28 U.S.C. 592 (a) (1) (emphasis added). Based upon reasoned legal
judgment and the overwhelming evidence of Congressional intent,
the Attorney General has concluded that plaintiffs' allegations,
even if true, simply do not constitute a federal crime -- namely,
that Section 5 of the Neutrality Act, 18 U.S.C. 960, does not
proscribe acts taken in pursuit of official governmental
policy. 7
Assuming standing and reviewability, the Attorney General's
view of federal criminal statutes is at least entitled to
considerable deference. Under the APA, the Attorney General's
7 The district court inexplicably asserted that the Attorney
General has enunciated a policy not to prosecute federal
officials under the Act (ER 314). To the contrary, the
determination made by the Attorney General in this case
represents the official legal position of the Department of
Justice and was set forth in a 1979 opinion of the Office of
Legal Counsel (ER 304A). It warrants judicial deference.
- 31 -
considered construction of the Neutrality Act can only be
overturned if it is deemed unreasonable. Committee for an
Independent P-I V. Hearst Corp., 704 F.2d 467, 472-473 (9th
Cir.), cert. denied, 104 S.Ct. 236 (1983). The responsibility to
construe and enforce criminal statutes lies at the core of the
executive's function, United States V. Dotterweich, 320 U.S.
277, 285 (1943), see p. 20-22, supra, and the principle of
deference is particularly apt when the statutory construction
affects the nation's foreign policy. See generally Dames &
Moore V. Regan, 453 U.S. 654, 674-684 (1981); Haig V. Agee, 453
U.S. 280, 301-303 (1981). The Attorney General's resolution of
the fundamental question in this case -- whether Congress
intended to criminalize acts of Administration officials pursuing
official foreign policy objectives -- ought not be questioned,
therefore, absent complete unreasonableness or bad faith. As we
show below, the Attorney General's position on the Neutrality Act
is not only eminently reasonable, but compelled by considerations
of the plain language of the statute, the circumstances
surrounding its enactment, and the post-enactment history of
executive and legislative measures consistent with that position.
By its very terms, the statute proscribes individual
conduct, not government activities. The statute today addresses
" [w] hoever, within the United States, knowingly begins or sets on
foot * * * any military or naval expedition or enterprise to be
carried on from thence against the territory or dominion of any
foreign prince or state * * *." 18 U.S.C. 960. The use of the
term "whoever," like its statutory predecessor "any person, " 1
Stat. 381, 384 (1794), is no mere catch-all expression. At
- 32 -
common law, a statutory reference to "any person" or "whoever"
did not include the sovereign if such an interpretation would
impinge upon the sovereign's prerogatives, an understanding of
which the colonists presumably were aware. See Street, Effect of
Statutes Upon the Rights and Liabilities of the Crown, 7 U.
Toronto L.J. 357 (1947). Congress presumptively does not intend
to include official governmental action when including the open-
ended phrase "any person. "
That canon of statutory construction has continuing vitality
today. In United States V. Cooper Corp., 312 U.S. 600 (1941),
the Supreme Court addressed the issue whether "any person" in
Section 7 of the Sherman Act included the United States. The
Court declared that "in common usage, the term 'person' does not
include the sovereign, [and that] statutes employing the phrase
are ordinarily construed to exclude it."=Id. at 604. See also
Wilson V. Omaha Indian Tribe, 442 U.S.E653, 667 (1979).
Moreover, as the Court stated in FPC V. Tuscarora Indian Nation,
362 U.S. 99, 120 (1960), a "general statute imposing restrictions
does not impose them upon the Government itself without a clear
expression or implication to that effect." (quoting United
States V. Wittek, 337 U.S. 346, 358-359 (1949)). The intent to
preserve the gist of the common law rule seems clear. Cf. United
States V. United Mine Workers, 330 U.S. 258, 272 (1947)
(reaffirming the "old and well-known rule that statutes which in
general terms divest pre-existing rights or privileges will not
be applied to the sovereign without express words to that
effect. "). The statutory rule takes on that much more force when
combined with the familiar canon that criminal statutes are
- 33 -
strictly construed. In a criminal statute, then, it is logical
to conclude that "person" does not apply to Administration
officials carrying out governmental policy.
Thus, by reference to traditional guides of statutory
interpretation, the word "whoever" in the context of this
criminal provision cannot bear the construction proffered by
plaintiffs. "Whoever" reaches private conduct, not that
authorized or initiated by official governmental policy. The
Attorney General's interpretation on its face is thus
8
unquestionably reasonable.
A. The Legislative History Clearly Demonstrates That The
Neutrality Act Sought To Proscribe Private As Opposed To
Official Governmental Involvement In The Affairs Of Foreign
"Neutral" Nations.
Examining the events leading up to enactment of the 1794
8
The district court stated that British antecedents to the
Neutrality Act illuminate Congress' intent to circumscribe the
executive's authority (ER 309-310). The court contended that
since the earlier statutes provide exceptions for those acts
"with leave or license of the crown," Congress' failure to
adopt a similar qualifier in the Neutrality Act proves that the
Act applies to official government policy (Id.) The
court's reasoning is ill-conceived. To begin with, the section
of the Neutrality Act in dispute had no direct British
precursor. See C. Fenwick, The Neutrality Laws of the United
States 27 (1913); Lobel, The Rise and Decline of the Neutrality
Act: Sovereignty and Congressional War Powers in United States
Foreign Policy, 24 Harv. Int'l L. J. 1, 32 n.164 (1983).
Rather, the British statutes -- 12 Anne c.ll (1713); 9 George 2,
c.30 (1736); 29 George 2, c.17 (1756) -- all concerned
prohibiting British subjects from enlisting in foreign wars.
Even without the clause "with leave or license of the crown,"
the statutes would not have restrained official acts of the
executive, and the statutes' only impact on government officials
was the de minimus restriction on their participation as
individuals in a foreign war. Since the statutes in question
have no relevance to the problem Congress attempted to remedy in
Section 5 of the Neutrality Act, Congress could not have copied
the statutes verbatim even if it had SC desired.
- 34 -
Neutrality Act removes any possible doubt as to the statute's
purpose. Congress sought not to restrict executive prerogatives
under Article II, but to support the executive by criminalizing
acts of individuals that threatened to interfere with the
government's conduct of foreign policy. President Washington
feared that precipitous acts by individual citizens, primarily
instances of privateering or of aid to privateering, would
embroil the country in the war between France and England.
Believing that open hostilities would jeopardize our newly won
independence, President Washington opted for as strict a policy
of neutrality as possible. C. Fenwick, supra, at 16-26. To that
end, President Washington issued a proclamation of neutrality in
April of 1793 warning citizens to avoid all acts which threatened
to subvert the government's chosen neutral course. See 1 American
State Papers, Foreign Relations 140 (1883).
Despite the proclamation, French vessels continued to be
armed and commissioned in American ports, and the celebrated
French Minister, Edmond Charles Genet, asserted French
jurisdiction over prizes brought into those ports. C. Fenwick,
supra, at 18-20. President Washington consequently called upon
Congress, as soon as it had reconvened, to enact legislation to
ensure American neutrality: "Where individuals shall, within the
United States, array themselves in hostility against any of the
Powers at war * * * these offenses cannot receive too early and
close an attention, and require prompt and decisive remedies. " 4
Annals of Congress 11 (1793).
Congress responded by passing the Neutrality Act. Its
purpose, as discussed on the House floor, was to strengthen the
- 35 -
hand of the President: "We have been told from the first
authority- that of the PRESIDENT an authority which in no
Government but ours would be called in question- that such
additional powers were necessary. But if, after this notice, we
reject the bill, this must dampen the exertions of the Executive;
and what if we shall be driven into a war by the licentious
behaviour of some individuals?" 4 Annals of Congress 743 (remarks
of Rep. Ames). Far from circumscribing executive authority, the
Neutrality Act was proposed by the executive to strengthen the
9
executive.
The legislative history, therefore, contrary to the
conclusory remarks of the district court (ER 311), 10 makes it
9
Circumstances surrounding the almost contemporaneous
reenactment and revision of the Neutrality Act buttress the
above conclusion. The Act was first amended substantively at
President Adams' request in 1797, Act of March 2, 1797, ch. 5, 1
Stat. 497. The amendments tightened the proscription against
privateering, and thereby girded the government's course of
neutrality. C. Fenwick, supra, at 30-31. Twenty years later, in
the wake of continued protests from Spain and Portugal,
President Madison lobbied Congress for further amendments which
resulted in the Act of March 3, 1817, ch. 58, strengthening the
executive's hand against shipowners who lent their vessels. in
aid of Latin American revolutionaries. See C. Fenwick, supra, at
35-39. Supplementary legislation was again passed in 1838, Act
of March 10, 1838, 15 Stat. 212, this time to increase the
executive's power against citizens aiding Canadians to overthrow
British rule. See C. Fenwick, supra, at 42-43. The pattern has
been consistent: neutrality laws have been proposed by the
executive to bolster the central government's foreign policy.
10
The district court's glaring failure to address the
legislative purpose behind enactment of the Neutrality Act is
noteworthy. Instead of analyzing the circumstances giving rise
to the Neutrality Act, it baldly asserted that [o]ne of [the
Act's] major purposes was to protect the constitutional power of
Congress to declare war or authorize private reprisals against
foreign states" (ER 311), and cited only to the law review
article of plaintiffs' counsel, Professor Lobel, supra note 8,
for support. But ironically, even Professor Lobel elsewhere in
the article concluded that: "The fundamental purpose of the
(CONTINUED)
- 36 -
clear that Congress sought to fortify governmental control over
foreign policy through enactment of the Neutrality Act.
Nor does the one case relied upon by the district court,
United States V. Smith, 27 F. Cas. 1192 (C.C.S.D.N.Y. 1806),
undermine the above understanding of the Act. In Smith, the
court held that the President's alleged prior knowledge and
approbation of a private military expedition did not shield the
defendant mercenaries from prosecution under the Act. Even
presuming the correctness of the trial court's decision in Smith,
that case not only involved a prosecution of private individuals
as opposed to government officials, it also concerned an
expedition launched for private motives as opposed to the instant
one which is alleged to be part of official government policy.
The district court's opinion attempted to elide the
differences by claiming that the essence of Smith is the
1
proposition that the Neutrality Act reaches acts authorized by
the President (ER 313). But the court's characterization of
Smith is itself faulty. Smith involved only allegations that the
President knew of or "winked" at the private expedition, not that
he authorized it in any way. After all, it should be remembered
that it was the executive which initiated the prosecution in the
first place. Indeed, Judge Patterson specifically questioned
defendants' counsel about the nature of the critical allegation
10
(FOOTNOTE CONTINUED)
Neutrality Act, however, lay not in asserting state sovereignty
with respect to other states but in strengthening the authority
of the central government vis-a-vis its citizens * * *." Id. at
24.
- 37 -
in the case: "You state in the affidavit that it was done with
the knowledge and approbation of the president, but is it stated
in the affidavit that he authorized the fitting out of the
expedition?" The attorney responded, "I conceive that it was not
necessary, " and then he disavowed his intention to advance such a
claim. The Trials of William S. Smith, and Samuel Ogden 66
(Thomas Lloyd, stenographer 1807) (excerpt attached to this
brief). This case, however, unlike Smith, involves allegations
of direct governmental involvement in the expedition; in fact,
plaintiffs allege that the government was funding the insurgents,
and that the CIA was to play a key role in training the
insurgents, all as a part of official United States foreign
policy (ER 6-12). Smith simply does not address whether the
Neutrality Act reaches the conduct of public officials acting
11
pursuant to governmental objectives.
=
B. This Country's History Of Repeated Military Actions
Against "Neutral" Nations Supports The Attorney General's
Construction of the Neutrality Act.
As the district court recognized (ER 311), presidents
throughout this nation's history have exercised the broad
discretion invested to them under the Constitution to introduce
11
To our knowledge, no subsequent judicial decision has
addressed the issue implicated in this case. However, it should
be noted that the Supreme Court, in distilling the significance
of the Neutrality Act, has stated that "no nation can permit
unauthorized acts of war within its territory in infraction of
its sovereignty." United States V. The Three Friends, 166 U.S.
1, 52 (1897) (emphasis added). The Court recognized that the
neutrality laws were enacted "in order to provide a
comprehensive code in prevention of acts by individuals within
our jurisdiction inconsistent with our own authority, as well as
hostile to friendly powers. Id. at 53 (emphasis added).
- 38 -
troops into foreign nations without first obtaining a declaration
of war. Needless to say, this background of over one hundred
instances of engaging in or supporting hostilities in "neutral"
nations, see Emerson, War Powers Legislation, 74 West Va. L.
Rev. 53 (1971); Monaghan, Presidential War-Making, 50 B.U.L.
Rev. 22, 26-27 (1970), is difficult to square with plaintiffs'
construction of the Act. Presidents have acted both with and
without subsequent Congressional authorization. Vietnam and
Grenada are two recent examples of a phenomenon which has marked
the nation's history. Still, Congress as a whole has never
invoked the Neutrality Act to oppose executive action. To the
contrary, on many occasions it has adopted the executive's chosen
path and provided funding for further military actions. See
Emerson, supra, at 73.
The district court attempted to evader this inconsistencyir
its position by stating that Congress must not have intendedithe
Neutrality Act to apply to military operations conducted by
regular U.S. troops (ER 313). Yet the district court as well as
plaintiffs are at a loss to explain why the Congress which
purportedly sought to protect its war powers under Article I, §
8, by enacting the Neutrality Act would ever have exempted the
most expansive infringement of its powers conceivable -- the
President's right to introduce troops into foreign nations
without a Congressional declaration of war. Moreover, as a
historical matter, presidents not only have dispatched regular
United States troops without seeking prior Congressional
approval, but from the 1811-1813 secret war against Spanish
Florida, see A. Sofaer, War, Foreign Affairs and Constitutional
- 39 -
Power 291-317 (1976), to the Bay of Pigs invasion, they have lent
12
the government's support to paramilitary operations.
Practice thus corresponds with the intent of the enacting
Congress -- the Neutrality Act was meant to proscribe only the
acts of individuals interfering with the course of official
13
governmental foreign policy.
In dismissing the import of the continuing history of
military and paramilitary expeditions, the district court chose
to rely instead on post-enactment remarks of various presidents
to demonstrate that the Act encompasses official governmental
policy (ER 311). To be sure, former presidents have publicly
remarked that the warmaking powers, as a constitutional matter,
are vested solely in Congress. See, e.g., Statement of Pres. Van
Buren (Dec. 3, 1838), reprinted in 3 Messages and Papers of the
12
We note that according to the Senate Select Committee to
Study Governmental Operations with Respect to Intelligence
Activities, S. Rep. No. 755, 94th Cong., 2d Sess. Book I, 120
(1975), the government has supported paramilitary efforts. on
other occasions as well, most notably to the Committee, in Laos
in the early 1960's, and in Guatemala in the 1950's.
13 Attorney General Jackson's 1940 opinion, 39 Op. Atty. Gen.
484, 494-96, is not to the contrary. Jackson construed not the
Neutrality Act of 1794, but an amendment inserted in the midst
of World War I which had no antecedent in the original Act. Act
of June 15, 1917, § 503, 40 Stat. 217, 222. In pertinent part
the section reads: "During a war in which the United States is a
neutral nation, it shall be unlawful to send out of the
jurisdiction of the United States any vessel built, armed, or
equipped as a vessel of war * * *." Moreover, the legislative
history suggests that Congress enacted the provision to conform
the conduct of the government in this respect to accepted
international principles of neutrality. See H.R. Rep. No. 30,
65th Cong., 1st Sess. 9 (1917). Unlike in 1794, the fear was
not just that the acts of individuals could propel the nation
into war, but that foreign powers would interpret official
government conduct in such a way as to lead to war.
- 40 -
Presidents 487 (J. Richardson ed. 1896); statement of Pres.
Buchanan, Cong. Globe, 35th Cong., 1st Sess. 217 (Jan. 7,
1858). By citing these speeches, the district court apparently
wished to graft a constitutional perspective on Congress'
hegemony over the warmaking powers, a jurisprudential view which
is by no means universally shared, onto a criminal statute
drafted by the Executive Branch which incontrovertibly sought to
augment the central government's control over foreign policy.
The speeches shed no light on the proper construction of the
Neutrality Act. They do not refer to the Neutrality Act at all,
and any possible significance is belied by the accompanying
history of repeated military incursions into nations without a
declaration of war.
Similarly, the district court's reliance on Senator
Slidell's attempt to amend the Neutrality Act in the 1850's is
misplaced (ER 311-312). Slidell sought to amend the Neutrality
Act to allow the President to suspend its operation whenever
required "in the public interest." Cong. Globe, 33d Cong., 1st
Sess. 1021-1024 (May 1, 1854). The purpose of his amendment was
to enable southerners to invade Cuba in order to prevent the
impending abolition of slavery by the Spanish Government. Id. at.
1021. We do not understand plaintiffs to suggest that Slidell's
scheme could conceivably have enjoyed the official sanction of
the government. Slidell's amendment was addressed not to official
government initiatives, but to private ventures. By rebuffing
Slidell's attempt, Congress merely reaffirmed that the President
should not "wink" at private expeditions launched for private
purposes. The efforts of Senator Slidell, like the remarks of
- 41 -
the former presidents, simply do not support plaintiffs' position
that the Neutrality Act was ever thought to circumscribe the acts
of federal officials implementing official government policy.
C. Recent Congressional Enactments Are Inconsistent With
Plaintiffs' Thesis That The Executive's Conduct Of Official
Foreign Policy Could Conceivably Violate the Neutrality
Act.
In recent years, Congress and the executive have engaged in
a continual dialogue over the executive's right to conduct so-
termed covert activities as part of its foreign policy. Although
the two branches have not always agreed, the debates themselves
demonstrate that Congress has long been aware of the executive's
conduct of such activities, and the disagreements which have
arisen concern not whether the conduct is criminal, but whether
the activities should be carried out with greater Congressional
participation. In light of repeated Congressional measures-
recognizing and authorizing appropriations for such actions the
district court's conclusion that the official conduct of foreign
policy may reasonably constitute a criminal violation is simply
specious.
In the aftermath of the Vietnam War, Congress as a whole
asserted a greater role in foreign policy matters. In 1973,
Congress enacted the War Powers Resolution, Pub. L. No. 93-148,
87 Stat. 555, which requires the President to consult with
Congress and provide reports concerning the introduction of
government troops abroad, 50 U.S.C. $ 1543. The only sanction
provided, however, is that "[w]ithin sixty calendar days after a
report is submitted * * * the President shall terminate any use
of United States Armed Forces * * * unless [several specified
- 42 -
conditions are met] 50 U.S.C. $ 1544(b). Enactment of the
Hughes-Ryan amendment one year later, Pub. L. No. 93-559, 88
Stat. 1804 (codified at 22 U.S.C. § 2422), manifests a similar
response to executive conduct of foreign affairs, this time
directly relating to covert operations. In placing procedural
limitations on CIA covert activities, Congress unquestionably
recognized the underlying exercise of executive power:
"Notwithstanding this limitation, the President may authorize and
direct that any operation in a foreign country be resumed, or
that any other operation in a foreign country be initiated, and
funds may be expended therefor, if but not before, he (1) finds
that such operation is important to the national security * * * "
S. Rep. No. 1299, 93d Cong., 2d Sess. 43 (1974) (emphasis
added). Any questions concerning the legitimacy of the
executive's exercise of that power were not resolved by
criminalizing the executive's conduct. Bather, Congress treated
the subject of the covert actions as falling within the domain of
both the executive and Congress -- each had its assigned role.
The Hughes-Ryan legislation would for the most part be
superfluous if the Neutrality Act reached covert actions pursued
as a part of official government policy.
Congress has continued to help shape the executive's conduct
14
of covert activities.
Indeed, Congress recently has
authorized appropriations for the very activities which
14
Congress amended the Hughes-Ryan legislation in 1980,
Pub. L. No. 96-450, 94 Stat. 1981 (codified at 50 U.S.C. § 413),
providing for more extensive Congressional oversight of
intelligence activities.
- 43 -
plaintiffs claim violate the neutrality laws. In passing the
1984 Intelligence Authorization Act on November 18, 1983,
Congress affirmatively authorized funding should the executive
choose to aid the insurgents in Nicaragua. The Act set a twenty-
four million dollar cap on expenditures "for the purpose or which
would have the effect of supporting, directly or indirectly,
military or paramilitary operations in Nicaragua by any nation,
group, organization, movement, or individual." Intelligence
Authorization Act for Fiscal Year 1984, Pub. L. No. 98-215, §
108, 97 Stat. 1473. Contrary to the district court's statement
that the funding is irrelevant (ER 320), the Congressional
authorization is clearly inconsistent with plaintiffs' thesis
that the activities charged constitute criminal violations.
Thus, while Congress has chosen to place some limitations
upon the executive's conduct of covert activities, including-
providing aid for paramilitary groups, it has also recognized the
legitimacy of the underlying exercise of executive authority.
Congressional participation in that exercise undermines
plaintiffs' argument that the Neutrality Act was designed to
circumscribe the executive's foreign affairs prerogatives. The
Attorney General has reasonably concluded that the President and
senior Administration officials cannot conceivably have violated
a federal criminal law by allegedly pursuing policies explicitly
funded by Congress.
III. THE NEUTRALITY ACT'S APPLICABILITY TO OFFICIAL ACTIONS OF
THE EXECUTIVE BRANCH THAT HAVE BEEN SUPPORTED BY CONGRESS
PRESENTS A NONJUSTICIABLE POLITICAL QUESTION
Given Congress' , legislation funding the government's
Nicaragua policy, this case presents a political question
- 44 -
inappropriate for judicial resolution. It is important to
reemphasize the extraordinary relief that plaintiffs seek--a
declaration that the government's official conduct of foreign
policy may violate a criminal provision housed in the Neutrality
Act. What they are seeking, then, is for this Court to intrude
upon an area constitutionally entrusted to the other two
branches. But, as the Supreme Court has stated: "the very nature
of executive decisions as to foreign policy is political not
judicial. Such decisions are wholly confided by our Constitution
to the political departments of the government, Executive and
Legislative. " Chicago & Southern Air Lines, Inc. V. Waterman
Steamship Corp., 333 U.S. 103, 111 (1948).
Measured against the standards articulated in Baker v. Carr,
369 U.S. 186, 217 (1962), the issue implicated in this case is
nonjusticiable:
Prominent on the surface of any case=held to involve a
-
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department * * * or the impossibility of a court's
undertaking independent resolution without expressing lack
of the respect due coordinate branches of government; or an
unusual need for unquestioning adherance to a political
decision already made; or the potentiality of embarassment
from multifarious pronouncements by various departments on
one question. "
First, there can be no question but that there is clearly a
"textually demonstrable constitutional commitment of the issue
to a coordinate political department." The conduct of foreign
affairs in general, and the decision to provide covert aid in
particular, lie within the prerogatives of Congress and the
President. Recent legislation, see pages 42-44, supra,
amply demonstrates that the two branches have joined in
- 45 -
continuing discourse to delineate their respective roles in so-
termed covert aid decisions. As the Court of Appeals for the
First Circuit held in dismissing a challenge to the conduct of
the Vietnam War, [a]s to the power to conduct undeclared
hostilities beyond emergency defense, then, we are inclined to
believe that the Constitution in giving some essential powers to
Congress and others to the executive, committed the matter to
both branches, whose joint concord precludes the judiciary from
measuring a specific executive action against any specific
clause in isolation." Massachusetts V. Laird, 451 F.2d 26, 33
(lst Cir. 1971); see Sarnoff V. Connally, 457 F.2d 809 (9th
Cir.) (dismissing challenge to Vietnam War on political question
ground because "[t]he conduct of foreign affairs is within the
exclusive province of Congress and the Executive. "), cert.
denied, 409 U.S. 929 (1972). The district court's order
disrupts the ongoing interplay between Congress and the
1"
Executive on the extent of covert activities, distorting the
balance envisioned in the Constitution. In face of the
commitment to the other branches, plaintiffs should not be
permitted to bypass those branches -- any redress should be
obtained through the political process.
Second, judicial intrusion into the President's realm of
foreign policymaking can only end in denigrating the "respect
due coordinate branches of government." The district court's
order casts a pall upon the government's conduct of foreign
policy, and it brings into question the legitimacy of past
presidencies as well, since the majority of presidents have
aided hostilities in "neutral" nations.
- 46 -
Finally, not only does the district court's order threaten
to erode the respect due coordinate branches of government, but
it exposes the government to the "real danger of embarassment
from multifarious pronouncements by various departments on one
question. " The Executive Branch has allegedly articulated its
view as to the legitimacy of aid to the Nicaraguan insurgents,
and Congress through appropriations has acquiesced in that
determination. The judiciary simply has no role to
play. Recognizing the propriety of that consideration, the
Court of Appeals for the Fifth Circuit in Dickson V. Ford, 521
F.2d 234 (5th Cir. 1975), cert. denied, 424 U.S. 954 (1976),
dismissed a challenge to the President's decision backed by
Congress to provide foreign aid to Israel. The Court applied
the political question doctrine because a determination that
foreign aid was necessary was "a 'question uniquely demand[ing]
single-voiced statement of the Government's views. Id. at
236. Since the Executive and Legislative Branches have already
manifested their view that the Neutrality Act does not apply to
the alleged governmental aid for Nicaraguan insurgents, the need
for a "single voice" is just as pressing. The district court's
pronouncement therefore may "rattle the delicate diplomatic
balance that is required in the foreign affairs arena. " Sanchez-
Espinoza V. Reagan, supra (dismissing challenge to alleged U.S.
support of covert activity in Nicaragua on political question
grounds). When the executive branch has pursued a foreign
policy objective and received Congress' imprimatur, judicial
intrusion is wholly inappropriate.
- 47 -
CONCLUSION
For the foregoing reasons, this Court should reverse the
district court's judgment.
Respectfully submitted,
RICHARD K. WILLARD
Acting Assistant Attorney
General
JOSEPH P. RUSSONIELLO
United States Attorney
LEONARD SCHAITMAN
JOHN F. CORDES
HAROLD J. KRENT
Attorneys,
Civil Division-Appellate
Staff, Room 3127
Department of Justice
Washington, D.C. 20530
Telephone: FTS 633-4214
MARCH 1984
- 48 -
STATEMENT OF RELATED CASES
There are no related cases within the meaning of Local Rule
13(b)(4). .
=
11
111
÷
-
- 49 -
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of March, 1984, I
served the foregoing Brief for the Appellants by causing copies
to be Express Mailed, postage prepaid, to:
Ellen Yaroshefsky
Michael D. Ratner
Sarah Wunsch
Peter Weiss
Center for Constitutional Rights
853 Broadway
New York, N.Y. 10003
Jules Lobel
University of Pittsburgh Law School
3900 Forbes Ave.
Law Building, Room 505
Pittsburgh, Pa. 15260
Marc Van der Hout
National Lawyers Guild
3689 18th Street
San Francisco, California 94110
30 F. CORDES = Cowe
JOHN
Attorney
Civil Division, Room 3617
Department of Justice
Washington, D.C. 20530
- 50 -
ADDENDUM
A -- Transcript Excerpt from Smith case
B
-- Ethics in Government Act, 28 U.S.C. §§ 591-598
C -- Neutrality Act, 18 U.S.C. § 960
THE
ADDENDUM A
TRIALS
OF
WILLIAM S. SMITH,
AND
SAMUEL G. OGDEN,
FOR
MISDEMEANOURS,
HAD III THE CIRCUIT COURT OF THE UNITED STATES =
THE NEW-YORK DISTRICT, IN=JULY, 1806.
-
WITH 4 PEELIMINARY ACCOUNT or THE PROCEEDINGS or THE-
SAME COURT AGAINST MESSRS. SMITH & OGDEX,
IN THE PRECEDING APRIL TERM.
BY
THOMAS LLOYD, STEN
APHER.
NEW-YCRK:
PRINTED BY AND FOR I. RILEY AND CO.
THE
1807.
tries. But if the foreign power. shall itself have broken that
approbat
amity, and shall have given just grounds of war. no government
must su
ouglit to omit $ providing and preparing the means" for military
WC dono
enterprises nor could any Law have intended to prevent the pre-
measure
paratory efforts of individuals for subduing the public enemy-
defendan
The memorable congress that commenced your revolution did
We a
not hesitate to provide and prepare the means of meeting the
mitigatio
English before actual war was declared nor did it censure or
it is only
discountenance those patriots. who unauthorised by any orders
ishment,
and before the formal declaration of war, possessed themselves
putting C
of Ticonderoga and Crown Point.
trary to
The circumstances of the times, we have shown, justified the
common
president in giving his approbation. and my client, under that ap-
matters
probation, in providing and preparing the means of a military the
of the iss
terprise against Spain. And surely no enterprise could be more
the fact C
useful or effectual for drawing the enemy from our southern and
judge, aft
western frontiers: none more worthy of the exalted and philoso
the cas
phic mind of our chief magistrate; none more consonant to the
prisonme
enlightened and philosophic views of society and politics, which
I verily b
he has exhibited to the world. than an expedition to liberan
case, tho
South America: to destroy at once Spanish tyranny and power
to be wo
on our own continent to enfranchise. by one effort, millions of
printed can
our fellow creatures from the most frightful Londage ; and to br.
because t
the foundations. in SO large a portion of the globe, for the free-
cant circi
dom and the happiness of man
! allude 1
PATERSON, J. You state in the affidavit that it was done with
P. 335.
the knowledge and approbation of the president, but is it stated =
sch the C
the affidavit that he authorized the fitting out of the expedition?
aggravati
Einmet. I conceive it was not necessary : for though I have
dictment
argued upon the effects of an authorisation, it was only to show
ing so:as
that the argument of the adverse counsel went much too far.
that the f
when they contended that the president could not authorise any
necessari
such measure. For our defence, it will be only necessary tr
se! to res
show that the president was under the circumstances of the
will find
times. warranted to provide and prepare the means for a military
aggravat
expecition; and that in what he might do. me acted with is
distinctic
knowledge and approbation. Qui prohibere potent " NON pr.
graration
hibet, juiet. The knowledge and approbation of the ci.ief г.ш-
in mitig.
gistrate and heads of partments. if We shall prove them to have
this disti
been sufficiently express and positive, will amount to a justifies-
have a ri
tion; but even if Hi should f.il in establishing them to that 11.
trary to
tent, they. will still abord very powerful indus ements for nities
Evidence
ing the punishment.
characte
This is denied on the oder side: but I would ask, if it crain
whent ,
be proved that this caterja 7. was carried on against the prev.
But ti
dent's express ender. would 1.01 that be matter a. gravation'
must ha
II it world. su.civ the reverse must be matter of midgries-
very unl
mistak.. inco WHAT :1 defendent may have been icd by the
such a
03
SPECIAL PROSECUTOR
28 § 591
587. Salaries
(2) any individual serving in a position listed in
The Attorney General shall fix the annual sala-
section 5312 of title 5;
es of United States trustees and assistant United
(3) any individual working in the Executive
Lates trustees at rates of compensation not to
Office of the President who is compensated at or
aceed the lowest annual rate of basic pay in effect
above a rate equivalent to level II of the Execu-
or grade GS-16 of the General Schedule pre-
tive Schedule under section 5313 of title 5;
cribed under section 5332 of title 5.
(4) any Assistant Attorney General and any
Mided Pub.L. 95-598, Title II, § 224(a), Nov. 1978, 92
individual working in the Department of Justice
Lat. 2664
compensated at a rate at or above level III of the
Executive Schedule under section 5314 of title 5;
588. Expenses
(5) the Director of Central Intelligence, the
Necessary office expenses of the United States
Deputy Director of Central Intelligence, and the
rustee shall be allowed when authorized by the
Commissioner of Internal Revenue;
Attorney General.
(6) any individual who held any office or posi-
idded Pub.L. 95-598, Title II. $ 224(a), Nov. & 1978, 92
tion described in any of paragraphs (1) through
2664.)
(5) of this subsection during the period consisting
of the incumbency of the President such individu-
589. Staff and other employees
al serves plus one year after such incumbency,
The United States trustee may employ staff and
but in no event longer than two years after the
ther employees on approval of the Attorney Gen-
individual leaves office;
ral.
(7) any individual described in paragraph (6)
-dded Pub.L. 95-598, Title II, 224(a), Nov. 6, 1978, 92
who continues to hold office for not more than 90
tat. 2664.)
days into the term of the next President during
the period such individual serves plus one year
after such individual leaves office;
CHAPTER 39 -INDEPENDENT COUNSEL
(8) the chairman and treasurer of the principal
national campaign committee seeking the elec-
-C.
91. Applicability of provisions of this chapter.
tion or reelection of the President, and any offi-
2. Application for appointment of independent
cer of the campaign exercising authority at the
counsel.
national level, such as the campaign manager or
3. Duties of the division of the court.
director, during the incumbency of the President.
+ Authority and duties of independent counsel.
5. Reporting and congressional oversight.
(c) Whenever the Attorney General receives in-
6. Removal of independent counsel: termination of
formation sufficient to constitute grounds to inves-
office.
tigate that any person not described in subsection
7. Relationship with Department of Justice.
(b) of this section has committed a violation of any
38. Termination of effect of chapter.
Federal criminal law other than a violation constitu-
Another chapter 39. set out preceding this chapter. comprises
ting a petty offense, the Attorney General may
tions 581 to 589 of this title.
conduct an investigation and apply for an indepen-
So in original
dent counsel pursuant to the provisions of this
Effective Date of Chapter. Section 604 of Pub.L.
chapter if the Attorney General determines that
-621 provided in part that this chapter shall take effect
Oct. 26, 1978.
investigation of such person by the Attorney Gen-
eral or other officer of the Department of Justice
591. Applicability of provisions of this chap-
may result in a personal. financial, or political
conflict of interest.
ter
(a) The Attorney General shall conduct an inves-
(Added Pub.L. 95-521, Title VI, 601(a), Oct. 26, 1978, 92
Stat. 1867, and amended Pub.L. 97-409, §§ 3, 4(a). Jan. 3.
gation pursuant to the provisions of this chapter
1983, 96 Stat. 2039, 2040.)
henever the Attorney General receives informa-
on sufficient to constitute grounds to investigate
Applicability to Specific Information Relating to
that any of the persons described in subsection (b)
Pending Proceedings
this section has committed a violation of any
Section 604 of Pub.L. 95-521 provided in part that the
Federal criminal law other than a violation constitu-
provisions of this chapter shall not apply to specific
ting a petty offense.
information received by the Attorney General pursuant to
(b) The persons referred to in subsection (a) of
section 591, if the Attorney General determines that-
this section are-
(1) such specific information is directly related to a
prosecution pending at the time such specific informa-
(1) the President and Vice President;
tion is received by the Attorney General:
Complete Annotation Materials, See Title 28 U.S.C.A.
407
28 § 591
DEPARTMENT OF JUSTICE
Part
(2) such specific information is related to a matter
determining whether reasonable grounds exist
which has been presented to a grand jury and is re-
warrant further investigation or prosecution, t
ceived by the Attorney General within 180 days of
Attorney General shall comply with the written
October 26, 1978; or
other established policies of the Department
(3) such specific information is related to an investi-
gation that is pending at the time such specific informa-
Justice with respect to the enforcement of crimin
laws.
tion is received by the Attorney General, and such
specific information is received by the Attorney General
(2) If-
within 90 days of October 26, 1978.
(A) after the filing of a memorandum und
§ 592. Application for appointment of a 1 inde-
subsection (b) of this section, the Attorney Ge
pendent counsel
eral receives additional information sufficient 1
(a)(1) Upon receiving information that the Attor-
constitute grounds to investigate about the ma
ney General determines is sufficient to constitute
ter to which such memorandum related, and
grounds to investigate that any person covered by
(B) the Attorney General determines, afte
the Act has engaged in conduct described in sub-
such additional investigation as the Attorne
section (a) or (c) of section 591 of this title, the
General deems appropriate, that reasonabl
Attorney General shall conduct, for a period not to
grounds exist to warrant further investigation o
exceed ninety days, such preliminary investigation
prosecution,
of the matter as the Attorney General deems ap-
then the Attorney General shall, no later that
propriate. In determining whether grounds to in-
ninety days after receiving such additional informa
vestigate exist, the Attorney General shall con-
tion, apply to the division of the court for the
sider-
appointment of I independent counsel.
(A) the degree of specificity of the information
received, and
(d)(1) Any application under this chapter shal
contain sufficient information to assist the divisior
(B) the credibility of the source of the informa--
tion.
of the court to select independent counsel and
to define that independent counsel's prosecutorial
(2) In conducting preliminary investigations pur-
jurisdiction.
suant to this section, the Attorney General shall
have no authority to convene grand juries, plea
(2) No application or any other documents, mate
bargain, grant immunity, or issue subpenas.
rials, or memorandums supplied to the division of
(b)(1) If the Attorney General, upon completion
the court under this chapter shall be revealed to
of the preliminary investigation, finds there are no
any individual outside the division of the court or
reasonable grounds to believe that further investi-
the Department of Justice without leave of the
division of the court.
gation or prosecution is warranted, the Attorney
General shall so notify the division of the court
(e) The Attorney General may ask a I indepen-
specified in section 593(a) of this title, and the
dent counsel to accept referral of a matter that
division of the court shall have no power to appoint
relates to a matter within that independent coun-
a 1 independent counsel.
sel's prosecutorial jurisdiction.
(2) Such notification shall be by memorandum
(f) The Attorney General's determination under
containing a summary of the information received
subsection (c) of this section to apply to the division
and a summary of the results of any preliminary
of the court for the appointment of a 1 independent
investigation.
counsel shall not be reviewable in any court.
(3) Such memorandum shall not be revealed to
(Added Pub.L. 95-521, Title VI, § 601(a), Oct. 26, 1978, 92
any individual outside the division of the court or
Stat 1868, and amended Pub.L. 97-409, §§ 2(a)(1),
the Department of Justice without leave of the
4(b)-(e), Jan. 3, 1983, 96 Stat. 2039-2041.)
division of the court.
So in original.
(c)(1) If the Attorney General, upon completion
References in Text. The Act, referred to in subsec.
of the preliminary investigation, finds reasonable
(a)(1), probably means the Ethics in Government Act of
grounds to believe that further investigation or
1978 which enacted this chapter. For complete classifica-
prosecution is warranted, or if ninety days elapse
tion of that Act to the Code, see Short Title note under
from the receipt of the information without 2 deter-
section 701 of Title 2, The Congress and Tables volume.
mination by the Attorney General that there are no
reasonable grounds to believe that further investi-
§ 593. Duties of the division of the court
gation or prosecution is warranted, then the Attor-
(a) The division of the court to which this chapter
ney General shall apply to the division of the court
refers is the division established under section 49
for the appointment of a independent counsel. In
of this title.
Complete Annotation Materials, See Title 28 U.S.C.A.
408
39
SPECIAL PROSECUTOR
28 § 594
(b) Upon receipt of an application under section
§ 594. Authority and duties of a independent
92(c) of this title, the division of the court shall
counsel
ppoint an appropriate independent counsel and
hall define that independent counsel's prosecutori-
(a) Notwithstanding any other provision of law,
jurisdiction. A 1 independent counsel's identity
a 1 independent counsel appointed under this chap-
nd prosecutorial jurisdiction shall be made public
ter shall have, with respect to all matters in such
request of the Attorney General or upon a
independent counsel prosecutorial jurisdiction es-
etermination of the division of the court that
tablished under this chapter. full power and inde-
isclosure of the identity and prosecutorial jurisdic-
pendent authority to exercise all investigative and
of such independent counsel would be in the
prosecutorial functions and powers of the Depart-
interests of justice. In any event the identity
ment of Justice, the Attorney General, and any
nd prosecutorial jurisdiction of such prosecutor
hall be made public when any indictment is re-
other officer or employee of the Department of
urned or any criminal information is filed.
Justice, except that the Attorney General shall
exercise direction or control as to those matters
(c) The division of the court, upon request of the
Attorney General which may be incorporated in an
that specifically require the Attorney General's
pplication under this chapter, may expand the
personal action under section 2516 of title 18.
rosecutorial jurisdiction of an existing indepen-
Such investigative and prosecutorial functions and
counsel. and such expansion may be in lieu of
powers shall include-
he appointment of an additional independent coun-
(1) conducting proceedings before grand juries
and other investigations;
(d) The division of the court may not appoint as
(2) participating in court proceedings and en-
! independent counsel any person who holds or
gaging in any litigation, including civil and crimi-
ecently held any office of profit or trust under the
Inited States.
nal matters, that such independent counsel
deems necessary;
(e) If a vacancy in office arises by reason of the
esignation or death of a 1 independent counsel, the
(3) appealing any decision of a court in any
livision of the court may appoint a independent
case or proceeding in which such independent
ounsel to complete the work of the independent
counsel participates in an official capacity:
ounsel whose resignation or death caused the va-
(4) reviewing all documentary evidence availa-
ancy. If a vacancy in office arises by reason of
ble from any source;
he removal of a independent counsel, the division
(5) determining whether to contest the asser-
the court may appoint an acting independent
ounsel to serve until any judicial review of such
tion of any testimonial privilege:
emoval is completed. Upon the completion of
(6) receiving appropriate national security
uch judicial review. the division of the court shall
clearances and, if necessary, contesting in court
ake appropriate action.
(including, where appropriate, participating in in
(f) Upon a showing of good cause by the Attor-
camera proceedings) any claim of privilege or
General, the division of the court may grant a
attempt to withhold evidence on grounds of na-
ingle extension of the preliminary investigation
tional security;
onducted pursuant to section 592(a) of this title
(7) making applications to any Federal court
2 period not to exceed sixty days.
for a grant of immunity to any witness, consist-
(g) Upon request by the subject of an investiga-
ent with applicable statutory requirements, or
on conducted by an independent counsel pursuant
for -warrants, subpenas, or other court orders,
this chapter, the division of the court may, in its
and. for purposes of sections 6003, 6004, and
scretion, award reimbursement for all or part of
attorney's fees incurred by such subject during
6005 of title 18. exercising the authority vested
uch investigation if-
in a United States attorney or the Attorney Gen-
(1) no indictment is brought against such sub-
eral;
ject: and
(8) inspecting, obtaining, or using the original
(2) the attorney's fees would not have been
or a copy of any tax return. in accordance with
incurred but for the requirements of this chap-
the applicable statutes and regulations, and, for
ter.
purposes of section 6103 of the Internal Revenue
.dded Pub.L. 95-521, Title VI, § 601(a), Oct. 26, 1978, 92
Code of 1954, and the regulations issued thereun-
at 1869, and amended Pub.L. 97-409, §§ 2(a)(1), 5, Jan.
der, exercising the powers vested in a United
1983, 96 Stat. 2039, 2041.)
: So in original.
States attorney or the Attorney General;
So in original. Substitution of "counsel" for "prosecutor" was
(9) initiating and conducting prosecutions in
: made by Pub.L. 97-409.
any court of competent jurisdiction, framing
Complete Annotation Materials, See Title 28 U.S.C.A.
409
28 § 594
DEPARTMENT OF JUSTICE
Part
and signing indictments. filing informations. and
References in Text Section 6103 of the Internal Rev
handling all aspects of any case in the name of
nue Code of 1954. referred to in subsec. (aM8), is classific
the United States; and
to Title 26. U.S.C.A., $ 6103.
(10) consulting with the United States Attor-
§ 595. Reporting and congressional oversigl
ney for the district in which the violation was
alleged to have occurred.
(a) A 1 independent counsel appointed under th
chapter may make public from time to time, ar
(b) A independent counsel appointed under this
shall send to the Congress statements or reports C
chapter shall receive compensation at a per diem
the activities of such independent counsel. Thes
rate equal to the annual rate of basic pay for level
statements and reports shall contain such inform
IV of the Executive Schedule under section 5315 of
tion as such independent counsel deems appropi
title 5.
ate.
(c) For the purposes of carrying out the duties of
(b)(1) In addition to any reports made under sul
the office of independent counsel, a independent
section (2) of this section, and before the termin:
counsel shall have power to appoint, fix the com-
tion of a 1 independent counsel's office under se
pensation, and assign the duties, of such employees
tion 596(b) of this title, such independent couns
as such independent counsel deems necessary (in-
shall submit to the division of the court a repor
cluding investigators, attorneys, and part-time con-
under this subsection.
sultants). The positions of all such employees are
(2) A report under this subsection shall set fort
exempted from the competitive service. No such
fully and completely a description of the work C
employee may be compensated at a rate exceeding
the maximum rate provided for GS-18 of the Gen-
the independent counsel, including the dispositio
eral Schedule under section 5332 of title 5.
of all cases brought, and the reasons for not pros
cuting any matter within the prosecutorial jurisdi
(d) A independent counsel may request assist-
tion of such independent counsel which was no
ance from the Department of Justice, and the De-
prosecuted.
partment of Justice shall provide that assistance.-
(3) The division of the court may release to th
which may include access to any records, files. or
Congress. the public. or to any appropriate person
other materials relevant to matters within such
such portions of a report made under this subset
independent counsel's prosecutorial jurisdiction,
tion as the division deems appropriate. The div
and the use of the resources and personnel neces-
sion of the court shall make such orders as ar
sary to perform such independent counsel's duties.
appropriate to protect the rights of any individua
(e) A ! independent counsel may ask the Attor-
named in such report and to prevent undue inter
ney General or the division of the court to refer
ference with any pending prosecution. The div
matters related to the independent counsel's prose-
sion of the court may make any portion of a repor
cutorial jurisdiction. A independent counsel's
under this section available to any individual name
may accept referral of a matter by the Attorney
in such report for the purposes of receiving withi
General. if the matter relates to a matter within
a time limit set by the division of the court an
such independent counsel's prosecutorial jurisdic-
comments or factual information that such individ
tion as established by the division of the court. If
ual may submit. Such comments and factual infor
such a referral is accepted, the independent counsel
mation. in whole or in part, may in the discretion 0
shall notify the division of the court.
such division be included as an appendix to suc
(f) A ] independent counsel shall. except where
report.
not possible, comply with the written or other es-
(c) A 1 independent counsel shall advise th
tablished policies of the Department of Justice re-
House of Representatives of any substantial an
specting enforcement of the criminal laws.
credible information which such independent cour
(g) The independent counsel shall have full au-
sel receives that may constitute grounds for a
thority to dismiss matters within his prosecutorial
impeachment. Nothing in this chapter or sectio
jurisdiction without conducting an investigation or
49 of this title shall prevent the Congress or eithe
at any subsequent time prior to prosecution if to do
House thereof from obtaining information in th
so would be consistent with the written or other
course of an impeachment proceeding.
established policies of the Department of Justice
(d) The appropriate committees of the Congres
with respect to the enforcement of criminal laws.
shall have oversight jurisdiction with respect to th
(Added Pub.L. 95-521, Title VI, § 601(a), Oct. 26, 1978, 92
official conduct of any independent counsel appoin
Stat 1869, and amended Pub.L. 97-409, §§ 2(a)(1),
ed under this chapter, and such independent cour
6(a)-(c), Jan. 3, 1983, 96 Stat. 2039, 2041.)
sel shall have the duty to cooperate with the exe
1 So in original.
cise of such oversight jurisdiction.
Complete Annotation Materials, See Title 28 U.S.C.A.
410
Ch. 39
SPECIAL PROSECUTOR
28 § 597
(e) A majority of majority party members or a
commenced before the division of the court and, if
majority of all nonmajority party members of the
such removal was based on error of law or fact,
Committee on the Judiciary of either House of the
may obtain reinstatement or other appropriate re-
Congress may request in writing that the Attorney
lief. The division of the court shall cause such an
General apply for the appointment of a indepen-
action to be in every way expedited.
dent counsel. Not later than thirty days after the
(b)(1) An office of independent counsel shall ter-
receipt of such a request, or not later than fifteen
minate when (A) the independent counsel notifies
days after the completion of a preliminary investi-
the Attorney General that the investigation of all
gation of the matter with respect to which the
request is made, whichever is later, the Attorney
matters within the prosecutorial jurisdiction of
General shall provide written notification of any
such independent counsel or accepted by such inde-
action the Attorney General has taken in response
pendent counsel under section 594(e) of this title,
to such request and, if no application has been
and any resulting prosecutions, have been complet-
made to the division of the court, why such applica-
ed or so substantially completed that it would be
tion was not made. Such written notification shall
appropriate for the Department of Justice to com-
be provided to the committee on which the persons
plete such investigations and prosecutions and (B)
making the request serve. and shall not be revealed
the independent counsel files a report in full com-
to any third party, except that the committee may,
pliance with section 595(b) of this title.
either on its own initiative or upon the request of
(2) The division of the court, either on its own
the Attorney General, make public such portion or
motion or upon suggestion of the Attorney Gener-
portions of such notification as will not in the
al, may terminate an office of independent counsel
committee's judgment prejudice the rights of any
at any time, on the ground that the investigation of
individual.
all matters within the prosecutorial jurisdiction of
(Added Pub.L. 95-521. Title VI. § 601(a), Oct. 26, 1978. 92
the independent counseLor accepted by such inde-
Stat. 1871. and amended Pub.L. 97-409 § 2(a)(1), Jan. 3.
pendent counsel under section 594(e) of this title,
1983. 97 Stat. 2039.)
and any resulting prosecutions, have been complet-
: So in original
ed or SO substantially completed that it would be
§ 596. Removal of a independent counsel;
appropriate for the Department of Justice to com-
plete such investigations and prosecutions. At the
termination of office
time of termination, the independent counsel shall
(a)(1) A 1 independent counsel appointed under
file the report required by section 595(b) of this
this chapter may be removed from office, other
title.
than by impeachment and conviction, only by the
personal action of the Attorney General and only
(Added Pub.L. 95-521, Title VI, § 601(a), Oct. 26, 1978. 92
Stat. 1872, and amended Pub.L. 97-409, §§ 2(a)(1), 6(d),
for good cause, physical disability, mental incapaci-
Jan. 3, 1983, 96 Stat. 2039, 2042.)
ty, or any other condition that substantially impairs
So in original.
the performance of such independent counsel's
duties.
§ 597. Relationship with Department of Jus-
(2) If a 1 independent counsel is removed from
tice
office, the Attorney General shall promptly submit
to the division of the court and the Committees on
(a) Whenever a matter is in the prosecutorial
the Judiciary of the Senate and the House of Rep-
jurisdiction of a independent counsel or has been
resentatives a report specifying the facts found
accepted by a I independent counsel under section
and the ultimate grounds for such removal. The
594(e) of this title, the Department of Justice, the
committees shall make available to the public such
Attorney General, and all other officers and em-
report, except that each committee may, if neces-
ployees of the Department of Justice shall suspend
sary to protect the rights of any individual named
all investigations and proceedings regarding such
in the report or to prevent undue interference with
matter, except to the extent required by section
any pending prosecution, delete or postpone pub-
594(d) of this title, and except insofar as such
lishing any or all of the report. The division of the
independent counsel agrees in writing that such
court may release any or all of such report in the
investigation or proceedings may be continued by
same manner as a report released under section
the Department of Justice.
595(b)(3) of this title and under the same limitations
(b) Nothing in this chapter shall prevent the At-
as apply to the release of a report under that
torney General or the Solicitor General from mak-
section.
ing a presentation as amicus curiae to any court as
(3) A 1 independent counsel so removed may ob-
to issues of law raised by any case or proceeding in
tain judicial review of the removal in a civil action
which a independent counsel participates in an
Complete Annotation Materials, See Title 28 U.S.C.A.
411
28 § 597
DEPARTMENT OF JUSTICE
Part 2
official capacity or any appeal of such a case or
then pending matters before a : independent coun-
proceeding.
sel that in the judgment of such special counsel
(Added PubL 95-521. Title VI. § 601(a). Oct. 26. 1978. 92
require such continuation until that independent
Stat. 1872. and amended Pub.L. 97-409. § 2(a)(1)(A), Jan.
counsel determines such matters have been com-
3. 1983. 96 Stat. 2039.)
pleted.
: So in original.
(Added Pub.L. 95-521, Title VI. § 601(a). Oct. 26, 1978. 92
Stat. 1873. and amended Pub.L. 97-409. §§ 7.
§ 598. Termination of effect of chapter
Jan. 3. 1983. 96 Stat. 2039. 2042.)
: So in original
This chapter shall cease to have effect five years
References in Text. The date of enactment of the
after the date of the enactment of the Ethics in
Ethics in Government Act Amendments of 1982. referred
Government Act Amendments of 1982, except that
to in text. is the date of enactment of Pub.L. 97-409.
this chapter shall continue in effect with respect to
which was approved on Jan. 3. 1983.
Complete Annotation Materials, See Title 28 U.S.C.A.
412
ADDENDUM C
§ 960.
Expedition against friendly nation
Whoever, within the United States, knowingly begins or sets on foot
or provides or prepares a means for or furnishes the money for, or
takes part in, any military or naval expedition or enterprise to be
carried on from thence against the territory or dominion of any for-
eign prince or state, or of any colony, district, or people with whom
the United States is at peace. shall be fined not more than $3,000 or
imprisoned not more than three years, or both.
June 25, 1948, c. 645, 62 Stat. 745.
Historical and Revision Notes
Reviser's Note. Based on Title 18. U.
Reference to territory or possessions of
S.C.. 1940 ed., I 25 (Mar. 4, 1909 C. 321, $ the United States was omitted as covered
13. 35 Stat. 1090: June 15. 1917. C. 30, Ti- by definitive section 5 of this title.
tie V. $8. 40 Stat. 223).
Canal Zone. Applicability of section to
Words "within the United States" were
Canal Zone. see section 14 of this title.
substituted for "within the jurisdiction"
etc.. in view of the definition of United
States in section 5 of this title.