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Thomas M. Franck
Professor of Law
TESTIMONY BEFORE THE HOUSE JUDICIARY SUBCOMMITTEE ON
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.
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
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
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
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."
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.