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Thomas M. Franck

Professor of Law
New York University

JUNE 15, 1988

The purpose being pursued by H.R. 3665, A Bill to amend

title 18, United States Code, to provide for criminal

penalties for Government officials who commit national

security offenses, is both congruent with the policy of legality which underpins our political system and congruent with the distribution of powers established by the Constitution of the United States.

As a constitutional lawyer, I will confine my comments

to the issue of constitutionality presented by the proposed


On the question of policy, let me simply add

that laws which put enforcement into other laws con

stitute the sinews of our legal system. Laws (and I include executive orders in this category) which are unenforced

weaken the entire corpus juris by undermining citizens'

respect for law and legality.

This law will close a large

gap of unenforceability in our legal system by putting

government officials and private contractors with government

on notice that laws mean what they say and will be enforced

against all those who play fast and loose with them, or who

prefer not to know what the law requires in order to benefit

from that ignorance.

The proposed law is undoubtedly constitutional.

Article 1

of the Constitution vests all legislative power granted by the Constitution in the Congress of the United States. This means


that congress has the power to legislate in respect of all

matters not expressly reserved to the people, the states,

or to the sole discretion of the President, or which are not

expressly prohibited to the Congress (as, for example, bills

of attainder or ex post facto laws).

It is equally clear that Congress has the power to make

laws "necessary and proper" to the enforcement of its laws.

It may therefore criminalize conduct in violation of its

laws, as demonstrated most recently by the decision of the

United States Court of Appeals for the fourth Circuit in

upholding the conviction of Samuel Loring Morison for violation

of executive orders made pursuant to the Espionage Act.


U.S. V. Morison rests in large part on the deference

the courts give to statutes of Congress which support executive

orders by criminalizing violations when Congress and the

Executive speak with one voice in matters pertaining to

national security and foreign relations.

Even more specifically, the Constitution gives Congress the explicit right to "define. .offenses against the law


of nations" (article:1, section 8, the Constitution).


Filartiga v. Pena-Irala (U.S.C.A.2d, 630 F.2d 876, 1980) the

Court of Appeals specifically sustained a federal statute, the Alien Tort claims Act of 1789, which authorizes private

tort enforcement of violations of the law of nations, which,

in the 1980 case, was given quite broad scope.

It is possible

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national Court of Justice, only a week ago, unanimously held

that international agreements are binding on states, are

superior to national law, and are also binding on states when the violator happens to be as in the 1987 Anti-Terrorism

Act, which the international court was considering


Congress of the United States.

Indeed, there is a long history of congressional enactments specifically intended to criminalize activities of

citizens that violate international agreements ranging from

agreements to protect migratory birds to agreements to pro

tect diplomats.

In Missouri v. Holland (252 U.S. 416, 1920)

the Supreme Court even went so far as to hold that congres

sional jurisdiction to legislate expands beyond its ordinary

constitutional limits when the purpose of the legislation is

to ensure citizens' compliance with international obligations

assumed by this nation.

Finally, it is clear from the jurisprudence of our highest

courts that the foreign relations power of the United States is

shared by the Congress and by the Executive Branch, but that,


when the Congress impacts upon the conduct of foreign rela

tions by the exercise of its solemn legislative power, the

President and all executive officers are bound to carry out

that law.

Little v. Barreme, 6 U.S. (2 Cranch) 170, 1804.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 1952.

In Little v. Barreme the court gave effect to the congressional

enactment despite the President's having issued an order which

contravened that law.

The effect of the Court's decision was

to make an inferior officer of the U.S. government liable to damages for having obeyed the President's order, rather than

the congressional statute.

The superior force of legislation, also in the conduct of

foreign relations, is equally characteristic of international


The Constitution, article 6, makes all treaties

made under the authority of the United States equal to con

gressional laws as "the supreme law of the land."

The con

tents of treaties and international agreements are no more

vague or unascertainable than are the statutes of the United

States and it is perfectly appropriate to require those who

work for the government of the United States and are engaged

in the protection of national security and the conduct of

foreign relations to familiarize themselves with all relevant

parts of the law of the land and so to conduct themselves

as to demonstrate that we have a government under, not above,

or in ignorance of, the law.


I note that the one solid institutional achievement to

date of the recent investigations of illegal conduct by

executive officers, has been the appointment of a legal

counsel at the National Security Council.

I trust that

your Bill will help sensitize that agency and others to the

need for frequent consultation with the Legal Counsel.


it achieves that, your proposed law will already have brought about a minor, but highly desirable, revolution in the way

these agencies formulate policy and conduct operations.

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