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Mr. CONYERS. Thank you very much, Professor Franck. You have taken us through some of the earlier cases on the subject that we weren't sure even existed up until now. We're in your debt.
I would like now to invite the Professor of the University of Pittsburgh Law School, Jules Lobel, who now appears on behalf of the Center for Constitutional Rights, to make any comments and statements that he would like in connection with our subject matter. It's very good to see you again, Professor Lobel. TESTIMONY OF JULES LOBEL, PROFESSOR OF LAW, UNIVERSITY
OF PITTSBURGH, PITTSBURGH, PA, ON BEHALF OF THE CENTER FOR CONSTITUTIONAL RIGHTS
Mr. LOBEL. Thank you, Mr. Chairman, and thank you for this opportunity to present testimony before this committee on behalf of the Center for Constitutional Rights.
The Center for Constitutional Rights has long sought to ensure that executive officials comply with the rule of law in conducting United States foreign policy. Therefore, we support this effort.
The Iran-Contra investigation and the report issued focused on violations of statutes enacted by Congress. Yet, international agreements binding on the United States have also been violated by executive officials in carrying out covert operations in Nicaragua. In 1983, CIA agents authorized and distributed a manual to the Contra forces encouraging the assassination of civilians who supported the Nicaraguan Government, in clear violation of both an Executive order and the United Nations charter and Geneva Conventions. In 1984, the CIA was responsible for mining Nicaraguan harbors, in violation of our treaty obligations under the United Nations
charter, the Charter of the Organization of American States and Treaty of Friendship Commerce and Navigation with Nicaragua. The International Court of Justice virtually unanimously held that both actions violated international law. Yet, in neither of these cases involving serious violations of our international obligations were the wrongdoers appropriately punished, certainly not criminally punished.
Similarly, the diversion of funds to the Contras from July through October, 1986 not only violated the Boland amendment but it also violated the judgment of the International Court of Justice in Nicaragua v. United States case which the chairman already alluded to. We are bound to abide by that judgment pursuant to Article 94 of the U.N. Charter to which we continue to be a party. During the time period involved, Congress had not authorized activities in violation of the ICJ judgment. Yet that violation, as with the other violations that I mentioned, received virtually no attention from the investigating committee.
Unfortunately, the executive branch has consistently disregarded applicable treaty obligations in conducting covert operations. A special Presidential committee in 1954 argued that in combating communism “There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply.” President Ford, when asked if the CIA's covert action against the Allende government in Chile violated international law, replied "I'm not going to pass judgment on whether it is permitted or authorized under interna
tional law. It is a recognized fact that historically, as well as presently, such actions are taken in the best interests of the countries involved."
This cavalier executive attitude toward our international obligations is contrary to our basic constitutional principles. Article VI of the Constitution establishes treaties as the supreme law of the land. Because the Supreme Court decisions have accorded treaties a status equal to that of acts of Congress, the President is required to adhere to that law and enforce that law just as he is obliged to obey statutory law. Thus, for example, the Supreme Court held in Cook v. United States that the executive power is limited by treaty, a position which was supported by the statements of early congressional leaders, as well as modern commentators.
In fact, decisions to breach treaty obligations or customary law have the potential to create international strains and repercussions far more serious than routine foreign policy decisions.
In the face of continued executive resistance to the notion that it is bound to comply with the terms of a treaty as ratified by the Senate-a resistance recently witnessed in the dispute over the interpretation of the ABM treaty-it is vital that Congress clearly establish sanctions for violations of treaties. This bill is a welcome attempt to do just that. Criminalizing such violations of treaties would hopefully give members of the NSC and other executive agencies pause when considering particular courses of action, because they would know they would be personally held accountable for their actions.
I would like to just briefly address three potential objections to this statute or to similar statutes. The first, as already mentioned by several other panelists, is that criminalizing violations of treaties is unconstitutional because such agreements are very general and subject to differing interpretations. While many treaties might be general, so are statutes. In fact, while treaties are often general and subject to differing interpretations, nations in the world generally agree as to a treaty's core meaning. For example, while there is dispute as to the expansiveness of the U.N. Charter Article 2, section 4's prohibition use of force, all nations clearly agree that to invade another country is prohibited. Such United States actions as the Bay of Pigs invasion, the Grenada invasion, or mining of the Nicaraguan harbors, clearly violate those core principles contained in the charter.
The narrowing of somewhat imprecise and broad principles of international law to a universally agreed upon core for the purpose of criminal jurisdiction is not new in American jurisprudence. In 1819, for instance, Congress enacted a statute prohibiting piracy and defined piracy as defined by the law of nations. Serious questions arose in subsequent prosecutions as to whether this definition was sufficiently precise to permit prosecutions. Justice Story, writing for the Supreme Court, held that although there may be a diversity of definitions, and although the outer boundaries of piracy might not be known, all writers concur in holding that robbery or forcible depredations upon the sea is piracy.
Similarly, with respect to our present international obligations, while the outer boundaries may not be known, certain core ele
ments are known and many covert actions violate those core elements.
We also must not forget that our Government believed that certain basic principles incorporated in international agreements were sufficient precise to impose criminal liability on the Nazis at Nuremberg. Justice Jackson, the United States prosecutor at Nuremberg, stated “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” This statute goes at least part of the way in effectuating Justice Jackson's statements at Nuremberg and his whole position at Nuremberg.
A second possible objection to criminalizing executive covert actions in violation of international agreements is that such a bill would prohibit many covert actions. Indeed, many of our postWorld War II covert actions did violate treaty obligations. The 1954 overthrow of the government in Guatemala, the Bay of Pigs invasion, the destabilization of the Chilean Government, the Phoenix program in Vietnam, and the secret war conducted by the CIA in Laos, all involved breaching U.S. treaty obligations. Yet, it seems to me that this argument is an argument for the passage of this statute, as Richard Falk has already outlined, and not against it. The stated policy of the United States, and the stated policy of this Congress, is to abide by international law and to abide by our treaty obligations. The time has come for Congress to enforce that policy.
The argument that to resort to such unlawful means internationally is necessary to protect our national security assumes that domestic liberty can be insulated from international lawlessness. However, we have seen time and time again that such is not the case. Once unlawful means are considered justified to combat the enemy abroad, it is but a short psychological and political step to argue that the Government should take any steps necessary, even unlawful ones, to fight against perceived enemies within. The recent exposures of the FBI CISPES investigation, the ongoing controversy about the executive's denial of many visa applications, just illustrates once again that Watergate and Vietnam came out of the same problem and that today's unlawful domestic activities undertaken by the executive branch are connected to the attitude that is taken towards international lawlessness.
Finally, in conclusion, a third argument made against these kind of statutes-and I talk not just about this statute but against a whole variety of statutes designed to limit executive discretion-is that flexibility and discretion is required by foreign policy decisionmaking. In fact, in a case that I argued on behalf of the Center for Constitutional Rights, Dellums v. Smith, where I represented Congressman Dellums in an attempt to get an investigation under the Neutrality Act, the administration argued that one couldn't apply criminal statutes in the area of foreign policy because foreign policy required discretion. In this whole covert action area, executive officials constantly caution against applying clear legal mandates because of the need for flexibility. Yet, it is precisely the allowance of executive discretion and flexibility that has wrought re
peated crises, scandals, and policy failures, as the executive constantly searches for loopholes or skewed interpretations of statutes to undertake policies not supported by the American people, nor openly and democratically debated.
Unfortunately, the notion that flexibility is needed in this area, as opposed to clear legal mandates, is furthered by the acceptance by many of those in Congress that covert action falls between the cracks of executive and congressional authority. For example, the Iran-Contra Report concluded that "para-military covert actions are in a twilight area,” where the Executive and Congress have concurrent authority, and in which its distribution is uncertain.
I would argue that such is not the case. The framers of our Constitution believed that not only declared wars but the initiation of lesser uses of force was for Congress and not the President to decide. Thus, Article I, section 8 of the Constitution gives Congress the power not only to declare war but to issue letters of marque and reprisal which traditionally were perceived as uses of force short of war.
That constitutional decision to allocate power over the initiation of warfare to Congress reflected a substantive judgment on the part of the framers that the use of force against another nation should be made difficult and undertaken only after measured deliberation. The history of covert operations over the past 40 years has undermined this constitutional framework. Yet, that substantive judgment is equally compelling in today's world, a world in which war is far more destructive and calamitous than it was in 1787. This statute is a welcome effort to restore that constitutional balance.
[The statement of Mr. Lobel follows:]
Professor Jules Lobel, University of
The House Committee on the Judiciary
June 15, 1988
Mr. Chairman and members of the Committee, thank you for the
opportunity to present this testimony before the Committee on
behalf of the Center for Constitutional Rights.
The Center for
Constitutional Rights (CCR) has long sought to ensure that
United States foreign policy. Five years ago, the CCR represented
Congressman Dellums in his attempt, pursuant to the Ethics in Government Act, to initiate a special investigation into alleged executive violations of the Neutrality Act in connection with U.S. aid to the Nicaraguan contras. While the Federal District Court ordered such an investigation, holding that reasonable grounds existed to believe that a criminal violation had occurred, its order was reversed on other grounds by the Court of Appeals.1 Because of its commitment to the principle that Executive officials must not be above the law the Center for Constitutional
Rights supports H.R. 3665.
IDellums v. Smith, 573 F. Supp. 1499, 577 F. Supp. 1449 (N.D. Cal. 1984), overruled on other grounds, 797 F.2d 817 (9th Cir. 1986).