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noting that although there may be a "diversity of definitions" of
the crime, "all writers concur, in holding, that robbery, or
forcible depredations upon the sea,
We must not forget that our government believed that certain
basic principles incorporated in international agreements were sufficiently 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.
A second possible objection to criminalizing Executive covert
activity in violation of international agreements is that such a
bill would prohibit many such covert actions. Indeed, most major Post World War II covert activities violated our treaty
obligations, The 1954 CIA sponsored overthrow of the Arbenz
12 United States v. Smith, 18 U.S. (5 Wheat) 153, 161 (1820).
Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, International Org. & Conf. ser. II, European & British Commonwealth 1, Dept. of State Pub. No. 3080 at 330 (London 1945).
to abide by international law; the time has come for Congress to
enforce that policy.
Finally, the Administration argument in the Dellums case, rejected by the District Court, was that the flexibility and discretion required by foreign policy decisionmaking dictated against the application of criminal statutes to that realm. In
this whole covert action are
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 repeated crisis, scandals and policy failures, as the Executive searches for loopholes or skewed interpretations of statutes to undertake policies not supported by the American people, nor openly and democratically debated.
The Iran-Contra Report concluded that "paramilitary covert actions are in a twilight area, where the Executive and Congress have concurrent authority, and in which its distribution is uncertain. 14
I would argue that such is not the case. The
framers of the Constitution believed that not only declared wars,
but the initiation of lesser uses of force was for Congress and not the President to decide. 15
Thus Article I, § 8, gives to Congress the power not only to declare war, but to issue letters
14 Report of the Congressional Comms. Investigating the Iran-Contra Affair, S. Rep. No. 216, H. Rep. No. 433, 100th Cong. 1st Sess. 376 (1987).
"Lobel, Covert war & Congressional Authority: Hidden War & Forgotten Power, 134 U. Pa. L. Rev. 1035 (1986).
of marque and reprisal which traditionally were perceived as uses
of force short of war.
The constitutional decision to allocate power over the initiation of warfare to Congress, even warfare involving private parties, 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 forty years has undermined that constitutional framework. Yet that substantive judgment is equally compelling in today's world, in which war is far more destructive and calamitous than it was in 1787. This
statute is a welcome effort to restore the constitutional balance.
Mr. CoNYERS. Thank you very much, Professor Lobel. We appreciate your contribution and also the work you have done in the courts.
As I recall the Dellums case, he was found not to have the requisite standing because he was not a member of the Judiciary Committee and that they were the only ones who could bring the action under the statute. Is that correct?
Mr. LOBEL. That is correct, and subsequently the Judiciary Committee then requested a special prosecutor itself. In the process of that request, the Iran Contragate exposures were then-
Mr. ČONYERS. Yes, that was my circulation of a request to the members of the Judiciary Committee to gain that. We took that lesson. It does also suggest that perhaps the law should be specifically modified to allow any member to bring that action.
What would you think of us initiating such an amendment?
Mr. LOBEL. I think, assuming that the Ethics in Government Act is held constitutional, which as you know is now before the Supreme Court, I think a very good suggestion would be to allow private citizens to initiate actions, or Members of Congress, to initiate actions when the Government is stalling or refusing to undertake an investigation. I think this goes to the point that Harold Koh was making, that in general Congress in this area must look for ways of telegraphing to the judiciary that it wants the judiciary to play its role as a coordinate branch. Unfortunately, the problem we ran into in the Dellums case was just that, a judicial abstention.
Mr. CONYERS. Do you anticipate that we would find a Member of Congress without the requisite standing?
Mr. LOBEL. Well, when you ask did we anticipate it, we certainly wrote about it in our briefs and we realized this would be an argument. We thought we would win on that issue and, in fact, in the District court, we did win.
Mr. CONYERS. Exactly.
Mr. LOBEL. I think, unfortunately, the Court of Appeals has now found to the contrary, which I think the Court of Appeals, in their opinion in the Ninth Circuit, implicitly said to Congress, "Why don't you give us clearer guidance on this issue, and why don't you make crystal clear that Members of Congress should have standing." To me, I think that would be a very helpful suggestion, if that were undertaken.
Mr. CONYERS. I certainly am going to give that consideration. I think that is an improvement that we can bring to an act that we fervently hope passes constitutional muster in the Supreme Court.
Professor Franck, have you the feeling that these matters, as arcane as they may seem to some, are gaining in public attention, or do you see Vietnam and Watergate and Iran-Contra arise as the sort of things that rise to the surface and then go back down and we collectively ignore them for a while until the next episode occurs? Or is there some hope that an alert citizenry can move a Congress and its government to really go back and reexamine these matters?
Frequently they are interpreted as major embarrassments to the extent that to revisit them is only to scratch sore wounds. I'm just wondering if you have any impression in your contributions that we may be moving into a different period?
Mr. FRANCK. I can only speak as one citizen, but it has certainly been an argument that I have long made, most recently to Governor Dukakis' campaign, that the old adage that foreign relations never win an election and occasionally loses one, but not very often, is probably wrong. I think the boundaries between foreign relations and domestic relations are now so fuzzy, because the principal issues of foreign relations sharply impact on aspects of domestic relations, that most citizens no longer think in those categorical terms.
When we talk about the economy, we obviously are talking significantly about foreign trade. When we talk about civil rights, we obviously, as Professor Lobel has pointed out, are speaking significantly about human rights and about minimal standards of national comportment towards one another. I think most citizens feel directly impacted by those aspects of foreign affairs, perhaps without ever realizing that they really are foreign affairs questions, because citizens are probably ahead of the rest of us in not drawing those categories so sharply any more.
Mr. CONYERS. In universities, is there more attention being given to the kind of subjects that we have been touching upon today?
Mr. FRANCK. Of course, in universities the great variable may be who is teaching the course and what hour it's given, and so scientific testing is rather difficult. But we have approximately 320 students in each of our 3 years of law school, and over 150, approximately half of them, now take international law, even though it's not a required course, which is an indication of pretty widespread interest. Those are very lively classes.
Yes, I think that most students believe that it is a part of the cultural conditioning, if not of the substantive portfolio of knowledge with which they enter into their professional careers, that they know something about the interaction between law and the conduct of the United States in the foreign relations field.
Mr. CoNYERS. Well, I want to thank you. This concludes our first hearing on H.R. 3665. We're going to go back to the drawing board. There have been many suggestions made here today.
We think that part of the important dialogue in Congress is that this keeps coming forward, that the legislation becomes more refined, that we invite your scrutiny to continue. There are a number of members not on the Judiciary Committee who have a great interest in this subject matter, as you know. So I want to thank you for all of them and for the subcommittee in giving us so much of your time and attention. Thank you very much.
The subcommittee stands adjourned.
[Whereupon, at 1 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.)