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 legislation. On the question of policy, let me simply add that laws which put enforcement into other laws constitute 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 2. 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. Indeed, 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. In 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 3. to argue about that breadth. However, there can be no argument that the most fundamental of international laws is the one which stipulates that international treaties and agreements are binding on states and that states are responsible for the conduct of their citizens that violates such solemn agreements. It should be noted that the International 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. - the 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 protect diplomats. In Missouri v. Holland (252 U.S. 416, 1920) the Supreme Court even went so far as to hold that congressional 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 relations 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 agreements. The Constitution, article 6, makes all treaties made under the authority of the United States equal to congressional laws as "the supreme law of the land." The contents 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. 5. 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. If 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. |