Authority of the Federal Bureau of Investigation To Override International Law In Extraterritorial Law Enforcement Activities At the direction of the President or the Attorney General the FBI may use its statutory authority to investigate and arrest individuals for violating United States law even if the FBI’s actions contravene customary international law The President acting through the Attorney General has the inherent constitutional author­ ity to deploy the FBI to investigate and arrest individuals for violating United States law even if those actions contravene customary international law Extraterritorial law enforcement activities that are authorized by domestic law are not barred even if they contravene unexecuted treaties or treaty provisions such as Article 2 4 of the United Nations Charter An arrest that is inconsistent with international or foreign law does not violate the Fourth Amendment June 21 1989 M e m o r a n d u m O p in io n fo r the Attorney G eneral This memorandum responds to the request o f the Federal Bureau o f Investigation “FBI” that we reconsider our 1980 opinion that the FBI has no authority under 28 U S C § 533 1 to apprehend and abduct a fugi­ tive residing in a foreign state when those actions would be contrary to customary international law Extraterritorial Apprehension by the Federal Bureau of Investigation 4B Op O L C 543 1980 the “ 1980 Opinion” or “Opinion” After undertaking a comprehensive review o f the applicable law we conclude that the 1980 Opinion erred in ruling that the FBI does not have legal authority to carry out extraterritorial law enforcement activities that contravene customary international law First we conclude that with appropriate direction the FBI may use its broad statutory authority under 28 U S C § 533 1 and 18 U S C § 3052 to investigate and arrest individuals for violations o f United States law even if those investigations and arrests are not consistent with international law Second we conclude that the President acting through the Attorney General has inherent constitutional authority to order the FBI to investi­ gate and arrest individuals in a manner that departs from international law The international law that may be abridged in this manner includes 163 not only customary international law but also Article 2 4 o f the U N Charter and other unexecuted treaties or treaty provisions that have not become part o f the domestic law o f the United States Finally we reaffirm the conclusion o f the 1980 Opinion that an arrest departing from interna­ tional law does not violate the Fourth Amendment and we further con­ clude that an arrest in violation o f foreign law does not abridge the Fourth Amendment 1 We caution that this memorandum addresses only whether the FBI has the legal authority to carry out law enforcement operations that contra­ vene international law It does not address the serious policy considera­ tions that may weigh against carrying out such operations I The 1980 Opinion The 1980 Opinion addressed the legal implications o f a proposed oper­ ation in which FBI agents would forcibly apprehend a fugitive in a foreign country that would not consent to the apprehension That Opinion acknowledges that 28 U S C § 533 1 the statute authorizing FBI investi­ gations contains no explicit geographical restrictions It also refers to a previous opinion issued by this Office that concluded that the statute’s general authorization to detect and prosecute crimes against the United States appears broad enough to include such law enforcement activity no matter where it is undertaken 2 4B Op O L C at 551 The 1980 Opinion asserts however that customary and other international law limits the reach o f section 533 1 Under customary international law as viewed by the 1980 Opinion it is considered an invasion o f sovereignty for one country to carry out law enforcement activities within another country without that country’s consent Thus the Opinion concludes that section 533 1 authorizes extraterritorial apprehension o f a fugitive only where the apprehension is approved by the asylum state Id 1The 1980 Opinion concluded that FBI agents who participate in overseas arrests in violation o f inter­ national law might be subject to civil liability Because w e now conclude that FBI agents do have author­ ity to engage in such actions we do not believe they w ill be subject to civil liability We do not discuss that issue in this memorandum however because the FBI agreed that our opinion concerning the FBI's substantive authority should precede any analysis o f civil liability issues See Memorandum fo r John O McGinnis Deputy Assistant Attorney General O ffice o f Legal Counsel from Margaret Love Deputy Associate Attorney General Mar 15 1989 Th e 1980 Opinion also addressed several other issues including whether bringing a fugitive before the court b y forcible methods would impair the court’s pow er to try the fugitive We agree with the 1980 O pinion’s conclusion that absent cruel o r outrageous treatment the fact that the fugitive was brought within the court’s jurisdiction by means o f forcible abduction would not impair the court’s pow er to try the fugitive See Pnsbie v Colltns 342 U S 519 1952 K er v Illinois 119 U S 436 1886 United States v Toscanino 500 F 2d 267 2d Cir 1974 We do not reconsider any issues addressed by the 1980 Opinion that are not specifically discussed in this memorandum 2 The referenced opinion is a June 8 1978 Memorandum for the Counselor to the Attorney General from the Deputy Assistant Attorney General Office o f Legal Counsel on FBI investigative activities in a foreign country the “ 1978 Opinion” 164 The Opinion supports this conclusion with “two distinct but related lines o f analysis ” Id at 552 First citing The Schooner Exchange v McFaddon 11 U S 7 Cranch 116 136 1812 Marshall C J the Opinion concludes that the authority o f the United States outside its ter­ ritory is limited by the sovereignty o f other nations The Opinion does not explain the juridical source o f this limitation on the authority o f the United States In The Schooner Exchange however Chief Justice Marshall relies on customary international law for many o f his conclu­ sions and this part o f the 1980 Opinion appears to suggest that custom­ ary international law imposes absolute jurisdictional limitations on the United States’ lawmaking authority Second the Opinion implicitly relies on the principle o f statutory con­ struction that statutes should be construed when possible so as to avoid conflict with international law The Opinion notes that a statute imposing a duty ordinarily is construed to authorize all reasonable and necessary means o f executing that duty The Opinion concludes that although the law enforcement methods at issue may be necessary to carry out the FBI agents’ duties under section 533 1 those methods are “unreasonable” and hence unauthorized if executed in violation o f international law Thus the Opinion concludes that without asylum state consent “the FBI is acting outside the bounds o f its statutory authority when it makes an apprehension o f the type proposed here — either because § 533 could not contemplate a violation o f international law or because the powers o f the FBI are delimited by those o f the enabling sovereign ” Id at 553 The 1980 Opinion’s impact on the ability o f the United States to execute necessary law enforcement operations may be significant The reasoning o f the 1980 Opinion would seem to apply to a broad range o f law enforce­ ment activities other than forcible apprehension United States law enforcement agents frequently are required to travel to foreign countries to conduct investigative activities or to meet foreign informants Formal consent cannot always be obtained from the foreign government and indeed in many cases to seek such consent would endanger both the agents and their investigation Although such activities are less intrusive than forcible apprehension and removal o f the fugitive under the 1980 Opinion they nonetheless may be viewed as encroachments on the asy­ lum state’s sovereignty and hence violations of international law if not authorized by that state See Ian Brownlie Principles o f Public International Law 307 3d ed 1979 “Brownlie” “Police or tax investi­ gations may not be mounted on the territory o f another state except under the terms o f a treaty or other consent given ” 6 Marjorie M Whiteman Digest of International Law 179-83 1968 describing inci­ dents in which American authorities sought and received permission from host country to interview persons held in foreign custody and to examine records Thus the 1980 Opinion has the potential to preclude the United States not only from apprehending fugitives in foreign eoun165 tries but also from engaging in a variety o f more routine law enforcement activities The United States is facing increasingly serious threats to its domestic security from both international terrorist groups and narcotics traffick­ ers While targeting the United States and United States citizens these criminal organizations frequently operate from foreign sanctuaries Unfortunately some foreign governments have failed to take effective steps to protect the United States from these predations and some for­ eign governments actually act in complicity with these groups Accordingly the extraterritorial enforcement o f United States laws is becoming increasingly important to the nation’s ability to protect its own vital national interests II Analysis A The Scope o f the F B I’s Statutory Authority The general investigative authority o f the FBI derives from 28 U S C § 533 1 which provides that “ t he Attorney General may appoint officials to detect and prosecute crimes against the United States ” This provision was first enacted in 1921 as part o f the Department o f Justice Appropriations Act ch 161 41 Stat 1367 1411 1921 As originally enacted it also provided that the officials appointed by the Attorney General “shall be vested with the authority necessary for the execution of their duties ” Id This provision was carried forward in successive appropriations acts and received permanent codification in 1966 Pub L No 89-554 § 4 c 80 Stat 378 616 1966 At that time the reference to “necessary” authority was dropped as surplusage because “the appoint­ ment o f the officials for the purposes indicated carries with it the author­ ity necessary to perform their duties ” H R Rep No 901 89th Cong 1st Sess 190 1965 The FBI’s arrest authority derives from 18 U S C § 3052 3 which pro­ vides The Director Associate Director Assistant to the Director Assistant Directors inspectors and agents o f the Federal Bureau of Investigation o f the Department o f Justice may carry firearms serve warrants and subpoenas issued under the authority o f the United States and make arrests without warrant for any offense against the United States committed in their presence or for any felony cog­ nizable under the laws o f the United States if they have rea­ 3 The 1980 Opinion did not discuss section 3052 apparently believing that section 533 1 also provided the authonty fo r the FB I’s pow er to make arrests 166 sonable grounds to believe that the person to be arrested has committed or is committing such felony We believe consistent with earlier opinions o f this Office that sections 533 1 and 3052 authorize extraterritorial investigations and arrests 4 Section 533 1 has been described as granting “broad general investiga­ tive power ” United States v Marzani 71 F Supp 615 617 D D C 1947 aff’d 168 F 2d 133 D C Cir affd 335 U S 895 1948 per curiam Section 3052 confers an equally broad arrest power Neither statute by its terms limits the FBI’s authority to operations conducted within the United States 5 Moreover reading these sections as applying extraterritorially accords with Congress’ intent to give certain criminal statutes extraterritorial reach 6 In many statutes Congress has extended the United States’ substantive criminal jurisdiction extraterritorially See e g 18 U S C § 844 i enacting penalties for destruction o f property used in foreign commerce 18 U S C § 1116 c implementing Con­ vention on the Prevention and Punishment o f Crimes Against Inter­ nationally Protected Persons 18 U S C § 1203 b 1 implementing Hostage Convention 49 U S C § 1472 1 enacting penalties for carrying weapons or explosives aboard aircraft These statutes are enforced principally by the FBI In order for the FBI to have the authority neces­ sary to execute these statutes its investigative and arrest authority must have an equivalent extraterritorial scope 7 4 Our 1978 Opinion concluded that section 533 1 authorized extraterritorial investigations and our 1980 Opinion did not disagree with that conclusion 6The Court repeatedly has held that Congress’ intent to have its laws apply extraterritorially need not he explicitly stated where the statute involves the sovereign’s ability to defend itself against cnm cs against the sovereign See e g Blackmer v United States 284 U S 421 437 1932 United States v Bowman 260 U S 94 98 1922 6Courts frequently have held that Congress has the pow er to criminalize extraterritorial conduct whether committed by American citizens or foreign citizens if the conduct i threatens the country’s security or interferes with governmental operations or ii is intended to have an illegal effect in the United States See e g United States v Columba-Colella 604 F 2d 356 359 5th Cir 1979 collecting cases United States v King 552 F2d 833 9th Cir 1976 cert denied 430 U S 966 1977 As the Court held in United States v Bowman cnminal statutes that are enacted because o f the government’s right to defend itself must apply abroad otherwise “to limit their locus to the stnctly territorial junsdiction would greatly curtail the scope and usefulness o f the statute ” 260 U S at 98 Although Bowman involved Congress’ prescnptive power the Court also applied this pnnciple to an enforcem ent action in Blackmer v United States Blackmer upheld a contempt citation against an American citizen residing in France who refused to appear as a witness in a criminal trial The Court noted that the sovereign’s pow er to protect itself would be meaningless if the court’s enforcement powers were not coextensive with the legislature’s pow er to cnminalize the conduct See 284 U S at 438-39 7Other considerations support this conclusion As discussed infra at p 172 a general enabling statute that confers broad authority on an agency to effectuate core executive functions should absent explicit restnction be read as conferring on the agency authonty that is commensurate with the inherent ex ec­ utive functions it is effectuating Since the President’s law enforcement authonty has extraterritonal scope the FBI’s basic statutory authority should be read as having the same scope It has been suggested to us that because professional bail bondsmen lack power to arrest bail jumpers outside the tem to ry o f the United States seeKearv Hilton 699 F2d 181 182 4th Cir 1983 FBI agents Continued 167 B The Effect o f Customary International Law on the F B I’s Extraterritorial Powers The 1980 Opinion offers tw o bases for its conclusion that customary international law limits the FBI’s extraterritorial powers First the Opinion asserts that the FBI’s powers are delimited by those o f the enabling sovereign and that the United States itself lacks the legal author­ ity to take actions that contravene customary international law The implication is that both Congress and the Executive are powerless to authorize actions that impinge on the sovereignty o f other countries Second the Opinion concludes that the FBI’s statutory authority must be read as constricted by the requirements o f customary international law We conclude that both bases fo r decision are erroneous 1 Effect on the Sovereign’s Power The 1980 Opinion was clearly wrong in asserting that the United States is legally powerless to carry out actions that violate international law by impinging on the sovereignty o f other countries It is well established that both political branches — the Congress and the Executive — have with­ in their respective spheres the authority to override customary interna­ tional law Indeed this inherent sovereign power has been recognized since the earliest days of the Republic In The Schooner Exchange v McFaddon 11 U S 7 Cranch 116 1812 Chief Justice Marshall explicitly stated that the United States has the authority to override international law At issue was whether a French warship was immune from judicial process within the territory o f the United States Relying on customary international law Marshall conclud­ ed that it was immune but stated that the Court had followed these cus­ tomary international law principles only in default o f any declaration by the United States government that they were not to be followed It seems then to the Court to be a principle o f public law that national ships o f war entering the port o f a friendly power open for their reception are to be considered as exempted by the consent o f that power from its jurisdiction 7 continued similarly lack extraterritorial arrest authority regardless o f whether the arrest violates international law However the arrest authority o f professional bail bondsmen is denved from common law see Taylor v Taintor 83 U S 16 Wall 366 371 1872 and thus is amenable to judicial limitation this does not sug­ gest that the F B I’s broad statutory authority under 28 U S C § 533 and 18 U S C § 3052 may be similar­ ly limited Indeed because responsibility fo r the conduct o f foreign relations is vested in the Executive not pn vate citizens it is appropriate that the Executive’s authonty should extend extraterritonally while the authority o f bail bondsmen should be deem ed restncted to the boundaries o f the United States 168 Without doubt the sovereign of the place is capable of destroying this implication He may claim and exercise jurisdiction either by employing force or by subjecting such vessels to the ordinary tribunals But until such power be exerted in a manner not to be misunderstood the sover­ eign cannot be considered as having imparted to the ordi­ nary tribunals a jurisdiction which it would be a breach of faith to exercise Id at 145-46 emphasis added 8 Chief Justice Marshall unequivocally reaffirmed the validity o f this principle in Brown v United States 12 U S 8 Cranch 110 1814 in which he stated This usage the rule o f customary international law is a guide which the sovereign follows or abandons at his will The rule like other precepts o f morality o f humanity and even o f wisdom is addressed to the judgment o f the sover­ eign and although it cannot be disregarded by him without obloquy yet it may be disregarded Id at 128 emphasis added The understanding that the political branch­ es have the power under the Constitution to exercise the sovereign’s right to override international law including obligations created by treaty has been repeatedly recognized by the courts See The Paquete Habana 175 U S 677 700 1900 courts must apply customary international law unless there is a treaty or a controlling executive or legislative act to the contrary The Chinese Exclusion Case 130 U S 581 602 1889 noting that “ t he question whether our government is justified in disregarding its engagements with another nation is not one for the determination o f the courts” Diggs v Shultz 470 F 2d 461 466 D C Cir 1972 stating that “ u nder our constitutional scheme Congress can denounce treaties if it sees fit to do so” cert denied 411 U S 931 1973 Tag v Rogers 267 F 2d 664 668 D C Cir 1959 concluding that “ w hen however a con­ stitutional agency adopts a policy contrary to a trend in international law or to a treaty or prior statute the courts must accept the latest act o f that 8 In concluding that the United States does not have the legal authonty to assert extraterritorial enforcement jurisdiction in violation o f international law the 1980 Opinion relies exclusively on a state­ ment in The Schooner Exchange that the “pow er o f a nation within its own territories must be traced up to the consent o f the nation itself They can flo w from no other legitimate source ” 11 U S 7 Cranch at 136 However this statement was made in connection with explaining that any restriction on an American court’s jurisdiction over the foreign warship could not flow from an external source but had to be based on domestic law Id The statement thus provides no support fo r the 1980 Opinion’s analysis Moreover the Opinion ignores the case’s explicit recognition o f the principle that a sovereign has the pow er to act inconsistently with customary international law 169 agency” cert denied 362 U S 904 1960 The Over the Top 5 F 2d 838 842 D Conn 1925 stating that “ international practice is law only in so far as we adopt it and like all common or statute law it bends to the will o f the Congress” Leading commentators also agree that the United States acting through its political branches has the prerogative to take action in disregard o f international law 9 Indeed the sovereign’s authority to override customary international law necessarily follows from the nature o f international law itself Customary international law is not static it evolves through a dynamic process o f state custom and practice States ultimately adhere to a norm o f practice because they determine that upholding the norm best serves their long-run interests and because violation o f the norm may subject the nation to public obloquy or expose it to retaliatory violations See Brow n v United States 12 U S 8 Cranch 110 1814 States necessari­ ly must have the authority to contravene international norms however for it is the process of changing state practice that allows customary international law to evolve 10 As Chief Justice Marshall stated in Brown “ t he rule is in its nature flexible It is subject to infinite modification It is not an immutable rule o f law but depends on political considerations which may continually vary ” 12 U S 8 Cranch at 128 If the United States is to participate in the evolution o f international law the Executive must have the pow er to act inconsistently with international law where necessary “It is principally the President ‘sole organ’ o f the United States in its international relations who is responsible for the behavior o f the United States in regard to international law and who participates on her 9A s P rofessor Henkin has noted “the Constitution does not forbid the President o r the Congress to violate international law and the courts w ill give effect to acts within the constitutional powers o f the political branches without regard to international la w ” Louis Henkin Foreign Affairs and the Constitution 221-22 1972 The Restatement also expressly maintains that Congress by subsequent enactment may supersede a rule o f international law or international agreement See Restatement T h ird o f the Foreign Relations Law o f the United States § 11 5 l b 1987 “Restatement Third - The reporters’ notes also agree that “ t here is authority for the view that the President has the power when acting within his constitutional authonty to disregard a rule o f international law or an agreement o f the United States Id § 1 5 l b note 3 W hile the Restatement Third does not explicitly address whether the President or his delegate may violate international law when acting pursuant to statutory rather than constitutional authonty this proposition appears to be a direct corollary to the Restatement Th ird ’s conclusion with respect to legislative authority I f Congress has the authonty to enact a statute contrary to international law it may also enact a statute that delegates to the Executive authonty that can be exer­ cised contrary to international law Thus w e believe that the Restatement Third substantially agrees w ith our vie w that the political branches under the authonty o f either constitutional or statutory domes­ tic law legally may act in a manner that is inconsistent with international law 10A recent exam ple involves international territory and econom ic sovereignty over the seas In 1945 the contiguous sea outside the tem tonal sea from three to twelve m iles was generally considered to be international w aters See Brownlie supra at 218 Shortly thereafter however a number o f states began asserting 200-rrule fishery conservation zones Id These claims were at times supported by mili­ tary force Sayre A Swarztrauber The Three-Mile L im it o f Territorial Seas 152-77 1972 The interna­ tional law norm that w aters beyond the tem ton al sea w ere not subject to the junsdiction o f the coastal states collapsed Restatement Third supra § 5 1 4 l a By 1979 there was general acceptance o f an exclu sive econom ic zone o f 200 miles Brownlie supra at 219-20 170 behalf in the indefinable process by which customary international law is made unmade remade ” Louis Henkin Foreign Affairs and the Constitution 188 1972 Thus the power in the Executive to override international law is a necessary attribute o f sovereignty and an integral part of the President’s foreign affairs power Indeed the absence o f such authority in the Executive would profoundly and uniquely disable the United States — rendering the nation a passive bystander bound to fol­ low practices dictated by other nations yet powerless to play a role in shaping those practices 11 Thus we think it clear that contrary to the 1980 Opinion’s assertions customary international law does not impose absolute legal limits on the power of the United States to exercise its law enforcement jurisdiction in foreign countries Both the Congress and the President acting within their respective spheres retain the authority to override any such limita­ tions imposed by customary international law 2 Effect on the FBI’s Statutory Authority We also believe that the 1980 Opinion erred in concluding that the statutes granting the FBI its investigative and arrest powers must be con­ strued as limited by customary international law The 1980 Opinion notes that a conventional rule o f statutory construction states that where a statute prescribes a duty by implication it authorizes all reasonable and necessary means to effectuate that duty 4B Op O L C at 552 The Opinion concludes based principally on the disapproval expressed in several academic journals that an extraterritorial apprehension is “unreasonable ” and hence unauthorized when it violates international law Id at 552 In substance though not explicitly the 1980 Opinion relies on the canon o f statutory interpretation — enunciated in Murray v Schooner Charming Betsy 6 U S 2 Cranch 64 118 1804 — that a 11 Because customary international law consists o f evolving state customs and practice it is an inher­ ently uncertain area o f law from which clear rules rarely emerge Some extraterritorial law enforcement actions in which the FBI might engage without the foreign country’s consent would not necessarily con­ travene international law For instance because sovereignty over territory derives not from the posses­ sion o f legal title but from the reality o f effective control see Brownlie supra at 117-18 logic would sug­ gest there would be no violation o f international law in exercising law enforcement activity in foreign territory over which no state exercises effective control In addition if the United States w ere the target o f attacks that violated international law it would be justified in making a proportional unilateral response even though its actions might otherwise be contrary to international law See generally Restatement Third supra § 905 1 U N Charter art 51 recognizing a nation’s inherent right o f selfdefense Other circumstances may exist as well under which extraterritorial law enforcem ent is appro­ priate under international law See generally D Cameron Findley Abducting Tenvrists f o r Trial in the United States Issues o f International and Domestic Law 23 Tex Int’l L J 1 25 1988 discussing other such circumstances In addition some unilateral actions by the United States though inconsistent with pn or international practice may constitute justifiable efforts by the United States to shape the content o f international norms Such unilateral actions may be legitimate means by which the United States sig­ nals its rejection o f a putative norm or seeks to gain acceptance fo r an alternative norm 171 statute should be construed when possible so as not to conflict with international law 12 We believe this line o f analysis is wholly inapposite First this canon does not apply to the kind o f statutes at issue here Sections 533 1 and 3052 are broad authorizing statutes “carrying into Execution” core Executive powers See U S Const art I § 8 cl 18 In cre­ ating the FBI and conferring on it broad investigative and arrest authori­ ty Congress has created an agency through which the President carries out his constitutionally assigned law enforcement functions Such gener­ al enabling statutes in the absence o f an explicit restriction must be read as conferring on the agency a scope o f authority commensurate with that o f the Executive Because as part o f his law enforcement powers the President has the inherent authority to override customary international law it must be presumed that Congress intended to grant the President’s instrumentality the authority to act in contravention o f international law when directed to do so Unless Congress places explicit limitations on the FBI’s investigative and arrest powers it must be presumed that Congress did not intend to derogate from Presidential authority by limit­ ing those statutory powers 13 This presumption is all the more compelling where as here the President’s foreign relations powers are implicated Courts have long rec­ ognized that delegations o f discretion involving the President’s constitu­ tional powers must be construed broadly especially in matters involving foreign affairs See e g Dames Moore v Regan 453 U S 654 677 1981 Hostage Act and International Emergency Economic Powers Act 12Actually M urray v Schooner Charming Betsy 6 U S 2 Cranch 64 1804 and Launtzen v Larsen 345 U S 571 578 1953 are examples o f cases applying the general rule o f construction that prescrip­ tive statutes not expressly purporting to apply extraterritorially ordinarily w ill not be presumed to have such an effe ct The presumption anses in those cases where it is apparent that extraterritorial applica­ tion o f a legal prohibition would gratuitously interfere with the sovereignty o f foreign countries while not advancing the United States’ interest in preserving its own sovereignty In Schooner Charming Betsy fo r example the Court held that a non-intercourse act prohibiting trade between the United States and France could not be applied to justify seizure o f a Danish ship 6 U S 2 Cranch at 118 To d o so would have needlessly infringed on Danish sovereignty without protecting the interest o f the United States in prohibiting its own citizens from trading with an enemy However such cases certainly cannot be read as suggesting that Congress does not have the power to enact statutes with extraterritorial effect Nor do such cases apply w here Congress actually intends a statute to have extraterritorial reach See Blackmer v United States 284 U S at 437 United States v King 552 F 2d at 850-51 13The court in United States v Postal 589 F 2d 862 5th Cir cert denied 444 U S 832 1979 recog­ nized the need to apply enforcement statutes broadly to effectuate Congress’ intent to reach certain drug trafficking It held that the statute granting the power to search and seize vessels m all cases in “‘which the United States has jurisdiction ’ for purposes o f enforcing United States law granted authonty to the Coast Guard to seize vessels in violation o f Article 22 o f the Convention on the High Seas Id at 884 quot­ ing 14 U S C § 89 a 1976 The United States was a party to that Convention but the Court held it was non-self-executing The Court based this conclusion on an earlier decision in which it had construed the statute as granting “junsdiction” in the typ e o f case at issue — a conspiracy to violate federal narcotics statutes Id at 884 Indeed since the cou rt viewed the statute as ‘“ intended to give the Coast Guard the broadest authonty available under law ’” it held that a Coast Guard regulation requiring boarding o f ves­ sels only in conform ity with a treaty could not be applied to limit the Coast Guard’s authonty under the statute Id at 885 quoting United States v Warren 578 F2d 1058 1068 5th Cir 1978 en banc 172 although not providing specific authorization for the President’s actions are still relevant because they “indicate congressional acceptance o f a broad scope for executive action” in settling claims against Iran Sordino v Federal Reserve Bank of New York 361 F 2d 106 111 2d Cir cert denied 385 U S 898 1961 noting that especially with respect to foreign affairs statutory delegations of power to the President must be read more broadly than other delegations See Chicago Southern A ir Lines Inc v Waterman Steamship Corp 333 U S 103 110-14 1948 denying availability o f judicial review over presidential decisions based on statutory authority involving broad foreign policy matters see also United States v Curtiss-Wright Export Corp 299 U S 304 319 1936 upholding broad statutory delegation that implicated President’s foreign affairs responsibilities 14 In contrast the 1980 Opinion reverses the presumptions o f our constitu­ tional system The Opinion imputes to Congress an intent to make the scope o f domestic legal authority for law enforcement operations depend on the vague and fluctuating standards of international custom In effect this would delegate to foreign nations the power to define on a continuing basis the content o f United States law according to standards that are out­ side the direct control o f the political branches Such an intent should not be presumed To the contrary Congress must be presumed to entrust such vital law enforcement decisions directly to the democratically accountable President and his subordinates See Chevron U S A v Natural Resources Defense Council 467 U S 837 1984 holding that it is for the executive branch not the judiciary to make policy choices within the ambit o f dele­ gated statutory authority when Congress has not spoken In enacting sections 533 1 and 3052 Congress was legislating against the background o f the well-recognized principle that international law is part o f the law o f the United States only insofar as it has not been over­ ridden by actions o f the political branches In The Paquete Habana Justice Gray stated International law is part o f our law and must be ascer­ tained and administered by the courts o f justice o f appro­ priate jurisdiction as often as questions of right depending upon it are duly presented for their determination For this purpose where there is no treaty and no controlling exec­ 14 Two recent cases refusing to apply statutory enforcement jurisdiction abroad are inapposite See Commodity Futures Tt'ading Comm’n v Nalias 738 F 2d 487 493 D C Cir 1984 C F T C could not enforce investigative subpoena on foreign citizen in a foreign nation FTC v Compagnie de SamlGobam-Pont-a-Mousson 636 F 2d 1300 1324-27 D C Cir 1980 F TC could not enforce document sub­ poena on a foreign citizen residing abroad In each case the agency whose authority was at issue was an independent agency that exercised statutory authority thought to be shielded from direct presidential control Thus the statutory authorities at issue in those cases unlike those exercised by the FBI may not have been understood to effectuate directly the Presidents constitutional authority and thus need not be interpreted as commensurate with that authority 173 utive or legislative act or judicial decision resort must be had to the customs and usages o f civilized nations 175 U S at 700 emphasis added Thus the Court held that United States forces unlawfully had seized Cuban fishing vessels as prizes o f war where such vessels were “exempt by the general consent o f civilized nations from capture and no act o f Congress or order o f the President ha d expressly authorized such an action to be taken ” Id at 711 In 1986 the Eleventh Circuit applied The Paquete Habana to uphold executive branch action taken pursuant to a broad statutory delegation in circumstances analogous to those here In Garcia-Mir v Meese 788 F 2d 1446 11th Cir cert denied 479 U S 889 1986 the issue was whether the United States was authorized to detain indefinitely Cuban aliens who had arrived as part o f the Mariel boatlift notwithstanding that such a detention violated customary international law The Attorney General ordered the detention pursuant to 8 U S C § 1227 a which like 28 U S C § 533 1 and 18 U S C § 3052 contained a broad grant o f authority to the Attorney General but did not specifical­ ly authorize indefinite detention 15 With respect to one group o f the Mariel detainees the court concluded that there was insufficient evi­ dence o f an express congressional intention to override international law Id at 1453-54 16 The court found however that the Attorney General’s decision to incarcerate them indefinitely constituted a “controlling exec­ utive act” o f the kind required by The Paquete Habana and the court thus found that the detention was lawful Id at 1454 Garcia-Mir therefore may be understood as holding that the Executive acting within broad statutory discretion may depart from customary international law even in the absence o f an affirmative decision by Gongress that international law may be violated 17Accordingly we believe that Garcia-Mir provides 15 The relevant portion o f 8 U S C § 1227 a provides that u a ny alien arriving in the United States w h o is excluded under this chapter shall be immediately d ep orted unless the Attorney General in an individual case in his discretion concludes that immediate deportation is not practicable or proper ” 1CAs to another group o f Manel Cubans — those who had been incarcerated continuously since their arrival in the United States — the court concluded that Pub L No 96-533 tit VII § 716 94 Stat 3131 3162 1980 provided sufficient evidence o f congressional intention to override international law See 788 F 2d at 1453-54 n 9 17 There are tw o different ways to read the holding in Gaixda-Mir One is that the Executive has broad discretionary authority pursuant to general power delegated by statute to determine whether to act incon­ sistently with international law Certain language in the district court’s decision suggests that it viewed the “controlling executive act” as having been taken pursuant to statutory authorization See Femandez-Roque v Smith 622 F Supp 887 903 N D Ga 1985 “ T his Court is reluctant to hold that the Attorney General’s involvement in plaintiffs' detention cannot be considered a ‘controlling executive act ’ especially since Congress has delegated to the Attorney General broad discretion over the detention o f unadmitted aliens ” In affirming the Eleventh Circuit may have intended to adopt the statutory rationale Alternatively G arcia -M ir may be understood as holding that the President has inherent constitutional authonty independent o f the statutory grant o f power to determine whether to act inconsistently with international law The Eleventh Circuit quoted a draft o f the Restatement referring to the President Continued 174 additional support for the proposition that broad statutory grants o f Executive authority must be interpreted in light o f the political branches’ inherent power to override international norms 18 In sum then we conclude that the FBI has authority under sections 533 1 and 3052 to cany out overseas investigations and arrests that contravene customary international law Those statutes do not explicitly require the FBI to conform its activities to customary international law and there is no basis for gratuitously assuming that Congress intended to impose such limitations on the FBI On the contrary in view of the President’s authority to override customary international law it must be presumed that Congress granted the FBI commensurate statutory authority 19 17 continued “acting within his constitutional authonty” in support o f its holding see 788 F 2d at 1454-55 and it may therefore have been relying on the President’s inherent constitutional authority This is the interpretation o f G aivia-M ir adopted by the Restatement Third supra § 115 note 3 and particularly by the C hief Reporter See Louis Henkin The Constitution and United States Sovereignty A Century o f Chinese Exclusion and Its Progeny 100 Harv L Rev 853 883-86 1987 “ Henkin” We think that the decision in Garcia-M ir is correct under either interpretation Professor Henkin disagrees with the result in Garcia-M ir because he does not believe that the President has an inherent constitutional authority to exclude aliens See id at 884 n 131 We disagree on this specific point with Professor Henkin See United States ex rel Knaujfv Shaughnessy 338 U S 537 543 1950 “ T h e pow er o f exclusion o f aliens is also inherent in the executive department o f the sov­ ereign ” see also Nishimura Ekiu v United Stales 142 U S 651 659 1892 In any event this debate pertains only to the particular issue in Garcia-Mir it does not go to the basic question o f whether the President has inherent constitutional authonty to violate customary or other international law — a proposition with which both the Restatement Third and Professor Henkin agree Restatement Third supra § 115 note 3 Henkin supra at 882 “Thus a domestic court espousing this view would not fo r example eryoin the President from directing United States officers to overfly another country’s tem tory without that country’s con sen t or to kidnap a wanted cnminal from a foreign country but would have to accept such directives as an exercise by the President o f the prerogative o f the United States to take such measures regardless o f its international obligations ” 18Recent legislation reflects Congress’ intent that the United States be able to exercise its law enforce­ ment powers abroad when necessary to counter international terrorism For instance in introducing leg­ islation now codified at 18 U S C § 2331 to criminalize murder and other acts against U S nationals committed abroad Senator Specter noted that In many cases the terronst murderer will be extradited or seized with the cooperation o f the government in whose junsdiction he or she is found Yet if the terrorist is hiding in a country like Lebanon w here the government such as it is is powerless to aid in his removal or in Libya where the Government is unwilling we must be willing to apprehend these cnminals ourselves and bnng them back fo r tnal 131 Cong Rec 18 870 1985 19We do not here discuss limitations on the scope o f the FBI’s authonty for such actions that may be denved from other statutes We know o f no provisions by which Congress generally has prohibited the use o f agents to enforce United States laws contrary to pnnciples o f customary international law We believe however that such provisions would have to be quite explicit before they would be so construed because the extratem tonal enforcement o f United States laws relates to tw o areas o f the President’s con­ stitutional authority — the conduct o f foreign relations and his duty to execute the laws See Youngstown Sheet Tube Co v Sawyer 343 U S 579 645 1952 Jackson J concum ng “I should indulge the widest latitude o f interpretation to sustain the President’s exclusive function to command the instru­ ments o f national force at least when turned against the outside world for the secunty o f our society ” For example w e do not believe that the Mansfield Amendment circumscnbes the FBI’s authonty to make arrests abroad fo r violations o f United States anti-drug laws because its restrictions relate solely to United States participation in operations to enforce foreign anti-dmg laws See 22 U S C § 2291 c 175 C The President’s Constitutional Power to Authorize Actions Inconsistent with Customary International Law We believe that the 1980 Opinion also erred because it failed to con­ sider the President’s inherent constitutional power to authorize law enforcement activities Pursuant to the constitutional command to “take Care that the laws be faithfully executed ”20 the President has the power to authorize agents o f the executive branch to engage in law enforcement activities in addition to those provided by statute The Court so held in In re Neagle 135 U S 1 1890 There the life o f Justice Field had been threatened and as a result the Attorney General assigned a Deputy United States Marshal to accompany the Justice Id at 42-52 While performing the duties assigned to him by the Attorney General Neagle shot and killed a man whom he believed was about to attack Justice Field Id at 52-53 Neagle was arrested and charged with murder by California authorities The Court assumed that the authorizing statute did not empower the U S Marshals or their deputies to accompany and guard Supreme Court Justices as they traveled through their circuits Id at 58 Nevertheless the Court held that the constitutional command that the President “shall take Care that the laws be faithfully executed” gave him the power to authorize agents o f the executive branch to take enforcement actions in addition to those provided by statute Id at 63-64 The Court concluded that the President’s constitutional duty is not limited to the enforcement o f acts o f Congress or treaties according to their terms but that it extends also to the “rights duties and obligations growing out o f the Constitution itself our international relations and all the protection implied by the nature of the government under the Constitution ” Id at 64-67 The Court thus concluded that the President had the legal author­ ity acting through the Attorney General to direct the Deputy Marshal’s actions and that the authority overrode any contrary California law Id at 67-68 21 20 U S Const art n § 3 21 See also United Stales ex ret Martinez-Angosto v Mason 344 F 2d 673 688 2d Cir 1965 Friendly J concurring noting that congressional silence did not preclude the inference that the President has the p o w e r to decide w hether to follow provisions o f a non-self-executing treaty Durand v Hollins 8 F Cas I l l C C S D N Y 1860 N o 4 186 is also apposite In 1854 Lieutenant Hollins o f the U S S Cyane ordered the bombardment o f Greytown Nicaragua in retaliation for the fail­ ure o f local authorities to make reparation fo r a mob attack on the United States Consul Hollins was then sued for the value o f property alleged to have been destroyed in the bombardment Justice Nelson on circuit held Hollins not liable on the grounds that he was acting pursuant to orders o f the President and the Secretary o f the Navy He ruled that A s the Executive head o f the nation the President is made the only legitimate organ o f the general government to open and carry on correspondence o r negotiations with foreign nations in matters concerning the interests o f the country or o f its citizens It is to him also that citizens abroad must look fo r protection o f person and o f property and fo r the faithful Continued 176 The Neagle Court pointed particularly to the President’s power in the area o f foreign affairs as an area in which there exists considerable inher­ ent presidential power to authorize action independent o f any statutory provision See id at 64 The Court’s decision reflects the fundamental principle stated by John Jay that “ a ll constitutional acts o f power whether in the executive or in the judicial department have as much legal validity and obligation as if they proceeded from the legislature ” The Federalist No 64 at 394 John Jay Clinton Rossiter ed 1961 This Office also has previously opined that the President pursuant to his inherent constitutional authority can authorize enforcement actions independent o f any statutory grant o f power See Memorandum for Wayne B Colbom Director United States Marshals Services from Leon Ulman Deputy Assistant Attorney General Office o f Legal Counsel Re Law Enforcement Authority o f Special Deputies Assigned to D O T to Guard Against A ir Privacy Sept 30 1970 the “ 1970 Opinion” In that opinion this Office ruled that the President’s inherent constitutional authority permitted Department o f Trans­ portation personnel to be deputized as Deputy U S Marshals and autho­ rized to carry firearms to take necessary action to prevent air piracy while an American carrier is in flight anywhere in the world and to make arrests for violations o f United States laws regarding air piracy and related offenses Id at 1 The opinion recognized that there was no statute expressly authorizing this protection and enforcement action Id at 2 22 Relying on In re Neagle and In re Debs 158 U S 564 581 1895 however it concluded that “since the United States has jurisdic­ tion to punish air piracy and related offenses it likewise has inherent authority to take reasonable and necessary steps to prevent these offenses ” 1970 Opinion at 2-3 In its analysis the 1970 Opinion noted that “the exercise o f their authority could give rise to conflicts with the countries involved o f an international nature But this would not in 21 continued execution o f the laws existing and intended for their protection For this purpose the whole executive pow er o f the country is placed in his hands under the constitution and the laws passed in pursuance thereof and different departments o f government have been organized through which this power may be most conveniently executed whether by negotiation or by force — a department o f state and a department o f the navy Now as respects the interposition o f the executive abroad for the protection o f the lives or property o f the citizen the duty must o f necessity rest in the discretion o f the president Acts o f lawless violence or o f threatened violence to the citizen or his property cannot be anticipated and provided for and the protection to be effectual or o f any avail may not unfrequently require the most prompt and decided action Under our system o f Government the citizen abroad is as much entitled to protection as the citizen at home The great object and duty o f government is the protection o f the lives liberty and property o f the people com ­ posing it whether abroad or at home and any government failing in the accomplishment o f the object or the performance o f the duty is not worth preserving Id at 112 22The authonzing statute o f the U S Marshals 18 U S C § 3053 like 28 U S C § 33 1 and 18 U S C 3052 contains no express extraterritorial arrest or enforcement authonty 177 our view affect the legality o f their actions under U S domestic law ” Id at 6 23 Accordingly we believe that even if sections 533 1 and 3052 are con­ strued as authorizing enforcement action only within the limits imposed by international law the President retains the constitutional authority to order enforcement actions in addition to those permitted by statute As discussed supra pp 168-71 this constitutional authority carries with it the pow er to override customary international law Thus Executive agents when appropriately directed pursuant to the President’s constitu­ tional law enforcement authority may lawfully carry on investigations and make arrests that contravene customary international law D The Status o f Article 2 4 o f the U N Charter and Other Unexecuted Treaties or Treaty Provisions To this point we have discussed the Executive’s power to override cus­ tomary international law Another issue is whether Article 2 4 o f the U N Charter would prohibit the Executive as a matter o f domestic law from authorizing forcible abductions absent acquiescence by the foreign government 24 We do not believe that it does The text o f Article 2 4 does not prohibit extraterritorial law enforce­ ment activities and we question whether Article 2 4 should be con­ strued as generally addressing these activities Nevertheless even if Article 2 4 were construed as prohibiting certain forcible abductions we believe that the President has the authority to order such actions in con­ travention o f the Charter Treaties that are self-executing can provide rules o f decision for a United States court 25 see Cook v United States 288 U S 102 112 1933 but when a treaty is non-self-executing it “addresses itself to the politi­ cal not the judicial department and the legislature must execute the treaty before it can become a rule for the Court ” Foster v Neilson 27 U S 2 Pet 253 314 1829 Marshall C J Accordingly the decision whether to act consistently with an unexecuted treaty is a political issue 23 We understand that as a matter o f international law the United States may exercise jurisdiction on United States carriers flying over foreign territories Convention on Offenses and Certain Other Acts Com m itted On Board Aircraft Sept 14 1963 art 3 20 U S T 2941 2944 The 1970 Opinion however did not rely on the Convention and to the contrary appeared to assume that exercise o f such junsdiction would be view ed as infringing on the sovereignty o f other nations 24A rticle 2 4 provides A ll M em bers shall refrain in their international relations from the threat or use o f force against the tem toria l integnty or political independence o f any state or in any other manner inconsistent with the Purposes o f the United Nations U N Charter art 2 U 4 25See Restatem ent Th ird supra § 111 introductory note declaring that “ ujnder the Supremacy Clause self-executed treaties concluded by the United States becom e law o f the United States” id § 111 com m ent h noting that unexecuted treaty does not furnish a rule o f decision in the United States 178 rather than a legal one 26 and unexecuted treaties like customary inter­ national law are not legally binding on the political branches The President acting within the scope o f his constitutional or statutory authority thus retains full authority to determine whether to pursue action abridging the provisions o f unexecuted treaties 27 We agree with the 1980 Opinion that Article 2 4 is not self-executing 28 4B Op O L C at 548 See also Sei F u jii v State 242 P 2d 617 620 C a l 1952 human rights provisions o f U N Charter not self-executing Pauling v McElroy 164 F Supp 390 393 D D C 1958 affd 278 F 2d 252 D C Cir cert denied 364 U S 835 1960 finding other sections of Charter not self-executing Article 2 4 relates to one o f the most funda­ mentally political questions that faces a nation — when to use force in its international relations For these reasons we conclude that as a matter o f domestic law the Executive has the power to authorize actions incon­ sistent with Article 2 4 o f the U N Charter 29 E The President’s Ability to Delegate to the Attorney General the Power to Authorize Enforcement Actions Inconsistent with International Law Even though the Constitution vests the “executive power” in the President see U S Const art II § 1 we do not believe that the President’s statutory or constitutionally based Executive power to override custom­ ary or other international law can be exercised only by him Rather we believe that this Executive power can be exercised by the Attorney General as well and that this conclusion obtains regardless o f whether 26O f course there may be significant political reasons for not abridging an unexecuted treaty ju st as the President may decide it is politically unwise to act inconsistently with customary international law Such political decisions necessarily depend on the facts o f each case and w e do not address their rami­ fications here 27As discussed above law enforcement activities outside the United States implicate the President’s constitutional authority to conduct the international relations o f the United States and to execute our laws Pursuant to these constitutional authorities the President has the pow er to decide whether o r not to operate within the terms o f an unexecuted treaty If the President acts inconsistently with the terms o f a treaty the treaty is not automatically terminated It may simply mean that the treaty is rendered inop­ erative to the extent it is inconsistent with the President’s actions In any event the determination o f whether a treaty has been rendered inoperative is largely a decision made by the Executive as part o f the conduct o f the foreign relations o f the United States C f Charlton v Kelly 229 U S 447 1913 holding that the President must decide whether the actions o f a foreign government have voided a treaty 28The 1980 Opinion speaks somewhat loosely o f the U N Charter not being “a self-executing treaty ” 4B Op O L C at 548 More properly the question should be whether individual provisions o f the treaty are self-executing See e g United States v Postal 589 F 2d at 884 n 35 29We do not address the effect on the FBI’s authority o f treaties that have become part o f United States law either because they are self-executing or because they have been implemented by legislation As noted above such treaties do have domestic legal effect although they can be denounced by the Executive C f The Chinese Exclusion Case 130 U S 581 1889 See also Louis Henkin Foreign Affairs and the Constitution supra at 171 We are unaware however o f any treaties o f general application that would limit the law enforcement authority o f the United States Applicable treaties should o f course be examined in the context o f any particular operation 179 the authority is viewed as derived from statute or from the President’s inherent constitutional authority Section 533 1 designates the Attorney General as the responsible executive branch official Thus all enforcement action authorized pur­ suant to this statute including enforcement action that departs from cus­ tomary or other international law may be undertaken by the Attorney General 30 The Garcia-Mir decision confirmed this conclusion by hold­ ing that the Attorney General performed the “controlling executive act” that sufficed to override customary international law in that case 788 F 2d at 1454-55 The Attorney General also may exercise the President’s constitutional pow er to override customary international law because “ t he President speaks and acts through the heads o f the several departments in relation to subjects which appertain to their respective duties ” Wilcox v Jackson 38 U S 13 Pet 498 513 1839 See also Wolsey v Chapman 101 U S 755 769 1879 Specific direction from the President or even explicit invocation o f his authority cannot reasonably be expected and is not generally required 7 Op A tt’y Gen 453 480-82 1855 31 Thus we believe that the Attorney General has the power to authorize departures from customary o r other international law in the course o f law enforcement activities and that the President need not personally approve such actions We would not recommend however that the Attorney General delegate the authority to more subordinate officials Even if he is viewed as exercising statutory authority pursuant to section 533 1 or section 3052 we think that as a prudential matter the Attorney General should in this case exercise it personally Decisions such as G a rcia-M ir rely on the theory that the Executive has the constitutional authority to make political decisions affecting our international relations To the extent that such decisions are made by officials below cabinet rank however the factual basis for this theory may be weaker Specifically we recommend that any overseas law enforcement activi­ ty that presents a significant possibility o f departing from customary or other international law be approved directly by the President or the Attorney General As an administrative matter the Attorney General may 30The sam e is true with respect to section 3052 31In re Neagle provides an example o f a case in which the Court upheld the exercise by the Attorney General o f the President’s inherent constitutional authority 135 U S at 67-68 More recent examples are the cases upholding the President’s constitutional authonty to order warrantless wiretaps relatmg to for­ eign intelligence activities United States v Butenko 494 F 2d 593 3d Cir en banc cert denied 419 U S 881 1974 United States v Brown 484 F2d 418 5th Cir 1973 cert denied 415 U S 960 1974 United States v Truong 629 F 2d 908 4th Cir 1980 cert denied 454 U S 1144 1982 United States v Buck 548 F 2d 871 9th Cir cert denied 434 U S 890 1977 In all o f these cases the warrantless w ire­ taps w ere ordered by the Attorney General and the courts accepted his authority to act on behalf o f the President See also United States v Ehrlichman 546 F2d 910 925-26 D C Cir 1976 cert denied 429 U S 1120 1977 holding that if a national security exception for warrantless foreign intelligence searches exists such searches must be authorized by the President or by “his alter ego for these matters the A ttorney General” 180 wish to promulgate guidelines specifying what actions could be taken by the FBI overseas when consent should be obtained from foreign govern­ ments and when such consent need not be obtained Such guidelines also could provide general authorization for certain types of non-intrusive law enforcement activities such as interviews with informants in for­ eign countries that nonetheless might depart from customary interna­ tional law if not authorized by the foreign government Nevertheless it would be prudent for such guidelines to require individual approval by the Attorney General for any operation such as an apprehension and abduction that would involve the use o f force in the territory o f another country without that country’s consent F International and Foreign Law and the Fourth Amendment The 1980 Opinion concluded that an arrest in violation o f customary international law did not violate the Fourth Amendment 32 4B Op O L C at 554 n 34 We agree The Opinion did not address whether the violation o f foreign statutes or other law would create a Fourth Amendment viola­ tion 33 We conclude that it would not The central question is whether an arrest that violates international law or foreign statutory law is “unreasonable” within the meaning of the Fourth Amendment’s proscription o f unreasonable searches and seizures The Fourth Amendment is an autonomous rule o f federal law that represents a judgment by the United States as to the appropriate bal­ ance between individual rights and the authority o f the government to enforce the law The Court recently held that state standards for reason­ able searches and seizures are irrelevant to determining whether the 32The Bill o f Rights applies to actions o f American officials directed at American nationals overseas Reid v Covert 354 U S 1 5-6 1957 There remains some dispute as to the extent to which the Bill o f Rights particularly the Fourth Amendment applies to actions o f American officials directed at non­ resident aliens overseas Compare Steven A Saltzburg The Reach o f the B ill o f Rights Beyond the Terra F iim a o f the United States 20 Va J Int’ l L 741 1980 “Saltzburg with Paul B Stephan III Constitutional L im its on International Rendition o f Crim inal Suspects 20 Va J Int’ l L 777 1980 “Stephan” and Paul B Stephan III Constitutional Lim its on the Struggle Against International Terrorism Revisiting the Rights o f Overseas Aliens 19 Conn L Rev 831 1987 The Supreme Court recently granted certiorari in a case holding the Fourth Amendment applicable to warrantless searches by DEA officials o f foreign nationals in their ow n country United States v Verdugo-Urquidez 856 F2d 1214 9th Cir 1988 rev’d 494 U S 259 1990 We are addressing here however only the general ques­ tion o f whether a violation o f foreign or international law results in a violation o f the Fourth Amendment regardless o f whether the individual arrested is a citizen or alien 33Presumably this omission was based on the Opinion’s conclusion that the FBI had “the authonty to violate the local law o f another country as long as that country does not object 4B Op O L C at 552 n 29 This conclusion was principally based on the notion that it is for the sovereign not an individual to determine whether objection should be made to an infnngement on sovereignty Id While we think this analysis correctly resolves any question o f violation o f international law it does not necessarily answer the Fourth Amendment question fo r it is at least theoretically possible that the Fourth Amendment itself contains a requirement that arrests comply with applicable foreign laws I f such a nght were contained m the Fourth Amendment it is difficult to see how a foreign government could extin­ guish the individual’s nght by failing to object We address this issue in the text infra 181 Fourth Amendment has been violated California v Greenwood 486 U S 35 1988 The Court stated We reject respondent’s alternative argument for affir­ mance that his expectation of privacy should be deemed reasonable as a matter o f federal constitutional law because the warrantless search and seizure was impermissible as a matter o f California law We have never intimated that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law o f the particular State in which the search occurs Respondent’s argument is no less than a suggestion that concepts o f privacy under the laws o f each State are to determine the reach o f the Fourth Amendment We do not accept this submission Id at 43-44 See also Oliver v United States 466 U S 170 183-84 1984 police officers who trespassed upon posted and fenced land did not vio­ late the Fourth Amendment even though their action was subject to criminal sanctions Olmstead v United States 277 U S 438 466-69 1928 illegality o f a wiretap under state law irrelevant in considering whether evidence was inadmissible under the Fourth Amendment Hester v United States 265 U S 57 59 1924 trespass in “open fields” does not violate the Fourth Amendment By analogy the standards imposed by the Fourth Amendment insofar as it applies abroad see Reid v Covert 354 U S 1 5-6 1957 must be determined by United States law It would be contrary to the Fourth Amendment’s purpose to incorpo­ rate into it rules o f international law or analogous foreign statutes autho­ rizing only local law enforcement officers to investigate and arrest Such laws would have as their purpose the protection o f another country’s sov­ ereignty In contrast the Fourth Amendment is concerned with the pro­ tection o f individual rights As the Fifth Circuit has stated Whether the search and seizure were Fourth-Amendmentunreasonable must be established by showing that the interests to be served by the Fourth Amendment were vio­ lated and not merely by establishing the violation o f gener­ al principles o f international law United States v Cadena 585 F 2d 1252 1264 5th Cir 1978 34 34 In United States v Peterson 812 F 2d 486 9th Cir 1987 the court reviewed whether evidence derived from wiretaps illegal under Philippine law was subject to the exclusionary rule Without analy­ sis the court stated that the “local law o f the Philippines governs whether the search was reasonable ” Id at 491 We do not accept this automatic incorporation o f local law into the Fourth Amendment because it is inconsistent with California v Greenwood 486 U S 35 1988 Moreover the statement in Peterson was o f no consequence to the decision because the court proceeded to admit the evidence under the good faith exception to the exclusionary rule 812 F2d at 491-92 182 We believe that the requirements o f the Fourth Amendment are met when officers with authority under United States law arrest with probable cause 35See United Slates v Reed 639 F 2d 896 902 n 2 2d Cir 1981 Section 3052 of title 18 authorizes agents of the FBI to arrest without war­ rant if probable cause exists which is all the Constitution requires at least for an arrest in a public place United States v Watson 423 U S 411 41417 1976 Henry v United States 361 U S 98 100 1959 36 Accordingly we conclude that an arrest in violation o f foreign law does not violate the Fourth Amendment 37 In addition based on the analysis in the 1980 Opinion we reaffirm that an arrest departing from international law does not violate the Fourth Amendment IV Conclusion This Office concludes that at the direction o f the President or the Attorney General the FBI may use its statutory authority under 28 U S C § 533 1 and 18 U S C § 3052 to investigate and arrest individuals for vio­ lations o f applicable United States law even if those actions depart from customary international law or unexecuted treaties Moreover we con­ clude that the President acting through the Attorney General has inher­ ent constitutional authority to deploy the FBI to investigate and arrest individuals for violations o f United States law even if those actions con­ travene international law Finally we conclude that an arrest that is 35 There is som e doubt whether the Fourth Amendment standard includes a requirement o f domestic law authority to arrest The 1980 Opinion concluded that it does 4B Op O L C at 553-54 That Opinion relied principally on United States v D i Re 332 U S 581 589-92 1948 a case involving exclusion o f ev i­ dence obtained incident to an unauthorized arrest by federal officials But it is not clear that Di Re was a Fourth Amendment decision and it is also unclear that the-Constitution requires statutory or other authonty to arrest See 1 Wayne R LaFave Search- and Seizure § 1 5 b at 107 2d ed 1987 concluding that D i Re is not a Fourth Amendment case but “simply an instance o f the court utilizing its supervisory pow er to exclude from a federal prosecution evidence obtained pursuant to an illegal but constitutional federal arrest” C f George E Dix Fourth Amendment Federalism The Potential Requirement o f State Law Authorization fo r Law Enforcement Activity 14 Am J Crim L 1 10 1987 “There is consider­ able d o u b t as to whether the Court has committed itself to the position that the fourth amendment reasonableness o f an arrest depends upon the existence o f state Jaw and the arrest’s validity under that law ” In any event as w e have previously stated w e believe that authority exists for the Executive to authorize the FBI to make arrests in foreign countnes 3r’ As to an arrest in a non-public place there are circumstances in which an arrest warrant is required Payton v New York 445 U S 573 576 1980 While presumably an arrest warrant often could be obtained there are limitations to the extraterritonal junsdiction o f the magistrate’s writ See 18 U S C §§ 3041-3042 Commentators have questioned however whether the warrant requirements o f Payton and other cases should apply overseas See Saltzburg supra 20 Va J Int’l L at 762 Stephan supra 20 Va J Int’l L at 792 n 44 37 We note that fear that our agents w ill be extradited for violations o f foreign law during an en force­ ment operation authonzed by the President or the Attorney General is not a warranted concern The Secretary o f State always has discretion to refuse to extradite even if the offense is covered by an extra­ dition treaty entered into with another country See 18 U S C § 3186 Secretary o f State “may” extradite the person committed under section 3184 Stndona v Grant 619 F 2d 167 2d Cir 1980 Wacker v Bisson 348 F 2d 602 606 5th Cir 1965 183 i inconsistent with international or foreign law does not violate the Fourth Amendment WIT J JAM P BARR Assistant Attorney General Office o f Legal Counsel 184