Overview of the Neutrality Act ( 1984 )

Overview of the Neutrality Act
Overview o f the Neutrality Act, focusing on explanations of certain key provisions, and summa­
rizing various judicial and Attorney General opinions interpreting those provisions.
September 20, 1984
M em orandum O p in io n for the A ttorney G eneral
This memorandum is intended to provide you with a broad overview of the
Neutrality Act, 18 U.S.C. §§ 956 et seq., its scope and applicability, and
previous constructions of the various provisions of the Act by the courts,
Attorneys General, and this Office.
Earlier this year, we provided you with our views regarding the applicability
of the Act to official Government activities. “Application of the Neutrality Act
to Official Government Activities,” 8 Op. O.L.C. 58 (1984). That memoran­
dum contains an extensive analysis of the legislative history of the various
provisions of the Act, from 1794 when it was first enacted, through the several
amendments to the Act, particularly those enacted in the nineteenth century. It
also examines in significant detail several major judicial decisions construing
the Act, as well as the opinions of various Attorneys General regarding the Act.
In our earlier memorandum, we concluded that “the Act does not proscribe
activities conducted by Government officials acting within the course and
scope of their duties as officers of the United States but, rather, was intended
solely to prohibit actions by individuals acting in a private capacity that might
interfere with the foreign policy and relations of the United States.” 8 Op.
O.L.C. at 58.1
1 However, as you are aware, the United States District C ourt for the N orthern D istrict o f C alifornia
recently held that the C IA 's alleged covert “aid[ingj, fu n d in g ] and p a rtic ip a tio n ] in a m ilitary expedition
and enterprises utilizing N icaraguan exiles for the purpose o f attacking and overthrow ing the government o f
N icaragua" could constitute a violation o f 18 U.S C. §§ 956 and 960, for purposes o f triggering the
investigation provisions o f the Ethics in G overnm ent Act, 28 U.S.C. §§ 591, et seq. See Dellums v. Smith, 573
F. Supp. 1489, 1492 (N.D. Cal. 1983); see also 577 F. Supp. 1449 (N.D. Cal. 1984); 577 F. Supp. 1456 (N D.
Cal. 1984). The D epartm ent appealed the district c o u rt's decision earlier this year, and is presently aw aiting
a decision by the U nited States Court o f A ppeals for the Ninth Circuit.
The only other current litigation o f which we are aware in which the issue o f the applicability o f the
Neutrality Act to G overnm ent officials is raised is m Sanchez Espinoza v Reagan, 568 F Supp. 596 (D.D C.
1983), appeal pending, N o 83-1997 (D.C. Cir argued May 24,1 9 8 4 ). However, the District C ourt dism issed
the plaintiffs' claims that the President, through his officers and appointees, had violated, inter aha, the
Neutrality Act, the W ar Powers Resolution, 50 U.S.C. §§ 1541-1548, and the Boland Amendm ent to the
Department o f D efense A ppropriations Act, 1983, Pub L. No. 9 7 -3 7 7 , § 793, 96 Stat. 1830, 1865 (1982), by
waging an undeclared w ar against the Nicaraguan Government, on the ground that plaintiffs’ claims pre­
sented nonjusticiable political questions.
* NOTE: A fter this opinion was issued by the O ffice o f Legal Counsel, the U nited States C ourt of Appeals
for the Ninth C ircuit reversed the district court’s decision in Dellums v. Smith on the ground that the plaintiffs
lacked standing to bring the action. See Dellums v. Smith, 797 F.2d 817 (9th C ir 1986).
209
I. The N eutrality Act
The provisions of the Neutrality Act, presently codified at 18 U.S.C. §§ 956et seq., remain substantially similar to the provisions originally enacted in
1794. See 1 Stat. 381.2
Section 958 makes it unlawful for any United States citizen to accept, within
the jurisdiction of the United States, a commission to serve a foreign nation in
a war against a country with which the United States is at peace.3
Section 959 prohibits anyone within the United States from enlisting or
paying someone else to enlist him in the military service of a foreign state.4
Section 960 prohibits the knowing participation in, preparation for, or fi­
nancing of a hostile expedition from within the United States against a nation
with which the United States is at peace.5
Section 961 prohibits the outfitting of military vessels within the United
States which are in the naval service of a foreign country engaged in war with a
country with which the United States is at peace.6 Finally, § 962 prohibits the
2 T here are several additional provisions o f the neutrality laws w hich were not enacted until 1917. One
provision, presently codified at 18 U .S.C . § 956, prohibits conspiring to injure the property o f a foreign
governm ent w ith w hich the United S ta te s is at peace S ection 956 provides in pertinent part:
If tw o o r m ore persons within th e jurisdiction o f the United States conspire to injure or destroy
specific property situated w ithin a foreign country and belonging to a foreign governm ent or to
any political subdivision thereof w ith which the U nited States is at peace, or any railroad, canal,
bridge, o r o ther public utility so situated, and if one o r more such persons com m its an act within
the ju risd ic tio n o f the United S ta te s to effect the o bject o f the conspiracy, each o f the parties to
the conspiracy shall be fined not m ore than $5,000 o r imprisoned not more than three years, or both.
The other provisions, enacted in 1917, codified at 18 U .S.C . §§ 9 6 3 -9 6 7 , deal with the detention in United
S tates ports o f arm ed vessels or vessels bound for belligerent nations until the ow ners certify to U nited States
custom s o fficials that the vessels will n o t be used in the m ilitary service o f belligerent nations after departure
from the U nited States.
3 Section 958 provides:
A ny citizen o f the United States who, within the jurisdiction thereof, accepts and exercises a
com m ission to serve a foreign p rin ce, state, colony, district, or people, in war, against any prince,
state, colony, district, or people, w ith whom the U nited States is at peace, shall be fined not more
than $2,000 o r imprisoned not m o re than three years, o r both.
4 S ection 959 provides in pertinent part:
W hoever, w ithin the United S tates, enlists o r enters himself, or hires or retains another to enlist
o r en ter him self, o r to go beyond th e jurisdiction o f the United S tates with intent to be enlisted o r
entered in the service o f any fo reig n prince, state, colony, district, or people as a soldier o r as a
m arine o r seam an on board any vessel o f war, letter o f marque, o r privateer, shall be fined not
m ore th an $1,000 o r imprisoned n o t more than three years, or both.
5 Section 960 provides:
W hoever, w ithin the United S tates, know ingly begins or sets on foot or provides or prepares a
m eans fo r o r furnishes the m oney for, o r takes part in, any m ilitary or naval expedition or
e n terp rise to b e c arried on from th en ce against the territory or dom inion of any foreign prince or
state, o r o f any colony, district, o r people with w hom the United States is at peace, shall be fined
not m ore than $3,000 or im prisoned not more than three years, o r both.
6 Section 961 provides in pertinent part:
W hoever, w ithin the United S tates, increases o r augm ents the force o f any ship o f war . . .
w hich, a t the tim e o f her arrival w ith in the U nited States, was a ship o f war . . . in the service o f
any foreign prince o r state, or o f any colony, d is tn c t, o r people, o r belonging to the subjects or
c itizen s o f any such prince or sta te , colony, district, o r people, the same being at war w ith any
foreign prince o r state, or of any colony, district, o r people, with whom the United States is at peace, by
adding to the number of the guns o f such vessel . . . o r by adding thereto any equipment solely
applicable to war, shall be fined not more than $1,000 o r imprisoned not more than one year, o r both.
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outfitting or furnishing of any vessel within the United States with the intent
that such vessel be used in the service of a foreign nation against a country with
which the United States is at peace.7
II. Judicial Decisions
The earliest judicial decisions construing the Neutrality Act involved the
predecessors to §§ 961 and 962, which generally prohibit the arming of vessels
in United States ports to be used in the service of foreign nations against
nations with which the United States is at peace. The earliest cases generally
were brought against private individuals who “outfitted” French ships engaged
in hostilities with the British Navy. See, e.g., United States v. Peters, 3 U.S. (3
Dali.) 121 (1795); United States v. Guinet, 2 U.S. (2 Dali.) 321 (1795). See also
United States v. Skinner, 27 F. Cas. 1123 (C.C.D.N.Y. 1818) (No. 16309); The
Betty Carthcart, 17 F. Cas. 651 (D.S.C. 1795) (No. 9742); The Nancy, 4 F. Cas.
171 (D.S.C. 1795) (No. 1898). These early cases focused on what constituted
the “arming” of a vessel, the distinction between “commercial” and “hostile”
intent, and upheld the authority of the United States Government to define, as a
matter of national policy, the political bodies in whose service, and against
which, the prohibited acts had been committed. See generally United States v.
The Three Friends, 166 U.S. 1 (1897). Moreover, these cases established that
§§ 961 and 962 of the Act do not prohibit armed vessels belonging to citizens
of the United States from sailing out of United States ports; rather the provi­
sions require only that the owners of such vessels certify that the vessels will
not be used to commit hostilities against foreign nations at peace with the
United States. See United States v. Quincy, 31 U.S. (6 Pet.) 445 (1832). Finally,
these cases recognized, with regard to §§ 961 and 962, the principle generally
applicable to all of the neutrality provisions, that the preparations prohibited by
the Act must have been made within the United States, and that the intention
with respect to the hostile deployment of the vessel must have been formed
before leaving the United States. Id.
The early decisions construing the Act, as well as subsequent judicial deci­
sions, make clear that, in view of its purpose to prevent private citizens from
interfering with the conduct of foreign policy by duly authorized Government
officials, the Neutrality Act, particularly § 960, prohibits only “the use of the
soil or waters of the United States as a base from which unauthorized military
expeditions or military enterprises shall be carried on against foreign powers
7 Section 962 provides in pertinent part:
W hoever, w ithin the U nited States, furnishes, fits out, arm s, or attem pts to furnish, fit out or
arm, any vessel, w ith intent that such vessel shall be employed in the service o f any foreign
prince, o r state, o r o f any colony, district, o r people, to cruise, or com m it hostilities against the
subjects, citizens, o r property o f any foreign prince or state, o r o f any colony, district, or people
w ith whom the U nited States is at peace; or
W hoever issues o r delivers a com m ission within the U nited States for any vessel, to the intent
that she m ay be so em ployed shall be fined not more than $10,000 or im prisoned not more than
three years, o r both.
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with which the United States is at peace.” United States v. Murphy, 84 F. 609,
612 (D. Del. 1898). See also Wiborg v. United States, 163 U.S. 632 (1896);
United States v. O ’Sullivan, 27 F. Cas. 367 (S.D.N.Y. 1851) (No. 15974);
United States v. Smith, 27F. Cas. 1192 (C.C.S.D.N.Y. 1806) (No. 16342). The
jury instructions in the Murphy case, which provide an extensive discussion of
the elements of the “military expedition” offense under § 960, are illustrative
of this point:
Providing the means of transportation for a military enterprise
to be carried on from the United States against Spanish rule in
Cuba is, within the meaning of [§ 9 6 0 ],. . . preparing the means
for such military enterprise to be so carried on, and, if done with
knowledge, on the part of the person so providing the means of
transportation, of the character and purpose of such enterprise,
is denounced by the statute.. . . The broad purpose of [§ 960] is
to prevent complications between this government and foreign
powers. . . . What it prohibits is a military expedition or a
military enterprise from this country against any foreign power
at peace with the United States.
* * *
Where a number of men, whether few or many, combine and
band themselves together, and thereby organize themselves into
a body, within the limits of the United States, with a common
intent or purpose on their part at the time to proceed in a body to
foreign territory, there to engage in carrying on armed hostili­
ties, either by themselves or in co operation with other forces,
against the territory or dominions of any foreign power with
which the United States is at peace, and with such intent or
purpose proceed from the limits of the United States on their
way to such territory, either provided with arms or implements
of war, or intending and expecting . . . to secure them during
transit, . . . in such case all the essential elements of a military
enterprise exist. . . . It is sufficient that the military enterprise
shall be begun or set on foot within the United States; and it is
not necessary that the organization of the body as a military
enterprise shall be completed or perfected within the United
States. Nor is it necessary that all the persons composing the
military enterprise should be brought in personal contact with
each other within the limits of the United States; nor that they
should all leave those limits at the same point. It is sufficient that
by previous arrangement or agreement, whether by conversa­
tion, correspondence or otherwise, they become combined and
organized for the purposes mentioned, and that by concerted
action, though proceeding from different portions of this coun­
try, they meet at a designated point either on the high seas or
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within the limits of the United States. Under such circumstances
a military enterprise to be carried on from the United States
exists within the meaning of the law.
84 F. Cas. at 612-14.
III. Attorney General Opinions
As is the case with judicial decisions on the subject, the earliest opinions of
Attorneys General construing the Neutrality Act distinguished between “com­
mercial” and “hostile” intent for purposes of the prohibition, by the predeces­
sors to §§ 961 and 962, on “outfitting vessels of war.” See, e.g., 2 Op. Att’y
Gen. 86 (1828); 1 Op. Att’y Gen. 231 (1818); 1 Op. Att’y Gen. 190 (1816).
Attorneys General have opined that the Act forbids furnishing ships of war in
American ports with guns and other military equipment to be used by nations
against nations with which the United States is at peace. See, e.g., 5 Op. Att’y
Gen. 92 (1849); 4 Op. Att’y Gen. 336 (1844); 3 Op. Att’y Gen. 739 (1841).
The predecessor to § 959 was construed by early Attorneys General to
prohibit the recruitment or enlistment of persons for service on foreign vessels
of war in American ports. See 4 Op. Att’y Gen. 336 (1844). This latter
prohibition on enlistment was construed by Attorney General Cushing to
prohibit the undertaking by belligerent nations to enlist troops in the United
States, on the ground that such action constitutes a “gross national aggression
on the United States and insults our national sovereignty,” for which all, except
those protected by diplomatic immunity, are punishable. 7 Op. Att’y Gen. 367,
382 (1855). Attorney General Cushing’s lengthy opinion on foreign enlistment
premises the statutory prohibition in § 959 on the notion that while a neutral
state may permit a belligerent nation to raise troops on its soil, it should not
grant such a concession to one belligerent and not to all. Id.
As early as 1795, Attorney General Bradford opined that the Neutrality Act
did not preclude the commission of hostile acts by American citizens against
Nations with which the United States is at peace as long as the potential
defendants did not set foot from American soil. Regarding American citizens
who, while trading on the coast of Africa, “voluntarily joined, conducted,
aided, and abetted a French fleet in attacking” a British settlement on that coast,
the Attorney General stated:
[AJcts of hostility committed by American citizens against such
as are in amity with us, being in violation of a treaty, and against
the public peace, are offences against the United States, so far as
they were committed within the territory or jurisdiction thereof;
and, as such, are punishable by indictment in the district or
circuit courts.
* * *
So f ar . . . as the transactions complained of originated or took
place in a foreign country, they are not within the cognizance of
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our courts; nor can the actors be legally prosecuted or punished
for them by the United States.
1 Op. Att’y Gen. 57,58 (1794). Pointing out that the Government’s inability to
prosecute under the Act resulted solely from § 960’s requirement that the
defendant have “set foot” from “within the United States,” Attorney General
Bradford noted that those “who have been injured by these acts of hostility
have a remedy by a civil suit in the courts of the United States.” Id. at 59.
In 1856, Attorney General Cushing distinguished between the mere “organi­
zation, in one country or state, of combinations to aid or abet rebellion in
another, or in any other way to act on its political institutions,” which is not
prohibited by the Act, from overt “attempts to interfere in the affairs of foreign
countries by force,” which is unlawful. 8 Op. Att’y Gen. 216 (1856). See also 8
Op. Att’y Gen. 472 (1855). The activities of the former, which the Attorney
General referred to as “Revolutionary Aid Societies,” while “a violation of
national amity and comity,” are limited to “inflammatory agitation” and dis­
cussion, falling short of the unlawful enlistment and military expeditions
prohibited by the Act. Id.
In 1869, Attorney General Hoar opined that the Neutrality Act was properly
applicable only with respect to political entities recognized by the United
States as an “independent government, entitled to admission into the family of
nations”;
The statute of 1818 is sometimes spoken of as the Neutrality
Acf, and undoubtedly its principal object is to secure the perfor­
mance of the duty of the United States, under the law of nations,
as a neutral nation in respect to foreign powers . . . . The United
States have not recognized the independent national existence of
the island of Cuba, or any part thereof, and no sufficient reason
has yet been shown to justify such a recognition. In the view of
the Government of the United States, as a matter of fact, which
must govern our conduct as a nation, the island of Cuba is
territory under the government of Spain, and belonging to that
nation.
If ever the time shall come when it shall seem fitting to the
political department of the Government of the United States to
recognize Cuba as an independent government, entitled to ad­
mission into the family of nations, or, without recognizing its
independence, to find that an organized government capable of
carrying on war, and to be held responsible to other nations for
the manner in which it carries it on, exists in that island, it will
be the duty of that department to declare and act upon those facts.
* * *
But, on the other hand, when a nation with which we are at
peace, or the recognized government thereof, undertakes to
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procure armed vessels for the purpose of enforcing its own
recognized authority within its own dominions, although there
may be evidence satisfactory to show that they will aid the
government in the suppression of insurrection or rebellion, in a
legal view this does not involve a design to commit hostilities
against anybody.
* * *
The concession of belligerent rights to a “colony, district, or
people” in a state of insurrection or revolution, necessarily
involves serious restrictions upon the ordinary rights of the
people of this country to carry on branches of manufacture and
trade which are unrestricted in time of peace. To prevent our
mechanics and merchants from building ships of war and selling
them in the markets of the world, is an interference with their
private rights which can only be justified on the ground of a
paramount duty in our international relations; and however much
we may sympathize with the efforts of any portion of the people
of another country to resist what they consider oppression or to
achieve independence, our duties are necessarily dependent upon
the actual progress which they have made in reaching these
objects.
13 Op. Att’y Gen. 177, 178, 180 (1869). Thus, he concluded, the Act did not
prohibit the building of gunboats in New York to be sold to the Spanish
government for possible use by that Government against the Cuban insurrec­
tionists. Nor would § 962 of the Act prohibit the supplying of Cuban insurgents
with men, arms and munitions of war. 13 Op. Att’y Gen. 541 (1841).8 In 1895,
Attorney General Harmon, having declared that “neither Spain nor any other
country had recognized the Cuban insurgents as belligerents,” 21 Op. Att’y
Gen. 267, 269, opined:
The mere sale or shipment of arms and munitions of war by
persons in the United States to persons in Cuba is not a violation
of international law [nor of the neutrality laws], however strong
a suspicion there may be that they are to be used in an insurrec­
tion against the Spanish government. The right of individuals in
the United States to sell such articles and ship them to whoever
may choose to buy has always been maintained.
8 In a very succinct opinion. A ttorney General Akerman em phasized that his opinion addressed only the
predecessor to § 962, adding that the allegations “might be material in connection with other p ro o f/' 13 Op.
A tt'y Gen. 541. D epending upon the allegations, and w hether the United States Governm ent recognized the
Cuban insurrectionists as a sufficiently distinct political body to constitute more than a dom estic irritant to
Spain's internal affairs, a colorable claim under § 960 could be made. See, e g., 21 Op. A tt’y G en. 267, 269
(1896) (“ International law takes no account o f a m ere insurrection, confined w ithin the lim its o f a country,
which has not been protracted o r successful enough to secure for those engaged in it recognition as
belligerents by their ow n governm ent or by foreign governm ents.”).
215
*
If, however, the persons supplying or carrying arms and mu­
nitions from a place in the United States are in any wise parties
to a design that force shall be employed against the Spanish
authorities, or that, either in the United Sates or elsewhere,
before final delivery of such arms and munitions, men with
hostile purposes toward the Spanish Government shall also be
taken on board and transported in furtherance of such purposes,
the enterprise is not commercial, but military, and is in violation
of international law and of our own statutes.
Id. at 270, 271 (emphasis added).
Further attempts to distinguish between “commercial” and “hostile” intent in
trading with belligerents were made by Attorney General Knox in 1902.
Responding to the Secretary of State’s inquiry regarding the legality of ship­
ping horses from New Orleans to South Africa, a belligerent, Attorney General
Knox opined that although a neutral nation is prohibited by the general prin­
ciples of international law from giving aid to one of the belligerents during a
war, “carrying on commerce with the belligerent nation in the manner usual
before the war is . . . agreed not to be in itself giving such aid.” 24 Op. Att’y
Gen. 15, 18 (1902). He added, however, that “the fact that neutral individuals
instead of their government give aid to the belligerent does not relieve the
neutral government from guilt,” unless the acts are, by their nature, “impracti­
cable or excessively burdensome for the government to watch or prevent.” Id.
Several days later, Attorney General Knox referred to this opinion and that of
his predecessor, Attorney General Harmon, 21 Op. Att’y Gen. 267 (1895), in
advising the Secretary of State that the shipping of arms to China, notwith­
standing the presence of insurrectionary movements, would constitute a com­
mercial venture and therefore not a violation of the Neutrality Act. 24 Op. Att’y
Gen. 25 (1902).
Prior to the United State’s engagement in World War II, Attorney General
Murphy construed the Act to prohibit the transporting of any articles or
materials from a United States port to a port of a belligerent nation, until all
goods of United States citizens on board had been transferred to foreign
ownership. See 39 Op. Att’y Gen. 391 (1939). Later that year, Attorney
General Murphy opined that American trawlers and tugs which had been sold
to French concerns could lawfully depart United States ports after assurances
by the French government that the vessels were not intended to be employed to
commit hostilities against another belligerent. 39 Op. Att’y Gen. 403 (1939).
Finally, Attorney General Jackson opined in 1940 that, while the United
States Government could sell certain outdated American destroyers to the
British Government during World War II, it was precluded by the predecessor
to § 964 from selling to the British Government “mosquito boats” which were
under construction by the United States Navy, “since . . . [the latter] would
have been built, armed or equipped with the intent, or with reasonable cause to
216
believe, that they would enter the service of a belligerent after being sent out of
the jurisdiction of the United States.” 39 Op. Att’y Gen. 484, 496 (1940).9 In
distinguishing between the over age destroyers and the “mosquito boats” which
were, at that time, under construction, Attorney General Jackson referred to the
“traditional” rules of international law,” which distinguish between the selling
of previously armed and outfitted vessels to a belligerent, and the building of
armed vessels ‘“to the order o f a belligerent.”' Id. at 495 (quoting 2 Oppenheim,
International Law 574-76).
This distinction, regarding which Jackson cites Oppenheim’s characterization as
‘“hair splitting,”’ although “‘logically correct,’” is premised upon the view that by
“carrying out the order of a belligerent, [a neutral nation permits its] territory [to be]
made the base of naval operations,” in violation of a neutral ’s “duty of impartiality.”
Id. Because of the potential importance of this distinction and its subtleties, we set
out below the text of Attorney General Jackson’s lengthy quote from Oppenheim’s
treatise which explains the rationale of this view in greater detail.10
9 W e noted in our earlier m emorandum that §§ 963 and 964, first enacted as part o f the Espionage A ct of
1917, 40 Stat. 221 22, codified the substantive rules o f international law forbidding the delivery o f armed
vessels to belligerent pow ers by neutral nations. Regarding these provisions and Attorney General Jackson’s
opinion, we concluded that:
Although some com m entators have suggested that A ttorney General Jackson’s opinion supports
the view that all o f the Neutrality A ct provisions were intended to apply to Government
activities, we believe that § 964 by its term s is limited to circum stances involving a declared war,
unlike the other neutrality laws, and was proposed to Congress by Attorney General G regory in
1917 for the purpose o f providing “for the observance o f obligations imperatively imposed by
international law upon the U nited States.” H R Rep. No. 3 0 ,65th Cong., 1st Sess. 9 (1917).
8 Op. O.L.C. at 77 n.21. In 1941, how ever, C ongress enacted the Lend Lease Act, 55 Stat. 31, which
authorized the President to supply, with certain lim itations, military equipm ent to the governm ent o f any
nation the defense o f which he deem s vita) to the defense o f the United States. This Act, which granted
tem porary em ergency pow ers to the President, effectively suspended the operation o f the predecessor to
§ 964 until June 30, 1943 See S. Rep. No. 45, 77th Cong., 1st Sess. (1941); H.R. Rep. No 18, 77th Cong., 1st
Sess. (1941). See generally 40 Op. A tt’y Gen. 58 (1941).
10 Attorney G eneral Jackson quoted the follow ing from 2 Oppenheim , International Law 574-76:
W hereas a neutral is in no wise obliged by his duty o f im partiality to prevent his subjects from
selling arm ed vessels to the belligerents, such arm ed vessels being merely contraband o f w ar, a
neutral is bound to em ploy the m eans at his disposal to prevent his subjects from building, fitting
out, or arm ing, to the order o f either belligerent, vessels intended to be used as men o f war, and to
prevent the departure from his jurisdiction o f any vessel which, by order o f either belligerent, has
been adopted to w arlike use. The difference betw een selling arm ed vessels to belligerents and
building them to order is usually defined in the follow ing way.
An armed ship, being contraband o f war, is in no w ise different from other kinds o f contraband,
provided that she is not manned in a neutral port, so that she can com m it hostilities at once after
having reached the open sea. A subject o f a neutral who builds an armed ship, or arm s a
merchantm en, not to the order o f a belligerent, but intending to sell her to a belligerent, does not
differ from a m anufacturer o f arms who intends to sell them to a belligerent. There is nothing to
prevent a neutral from allow ing his subjects to sell armed vessels, and to deliver them to
belligerents, either in a neutral port o r in a belligerent port.
* * *
On the other hand, if a subject o f a neutral builds arm ed ships to the order o f a belligerent, he
prepares the m eans o f naval operations, since the ships, on sailing outside the neutral territorial
waters and taking in a crew and am m unition, can at once com m it hostilities. Thus, through the
carrying out o f the order o f the belligerent, the neutral territory has been made the base o f naval
operations; and as the duty o f im partiality includes an obligation to prevent either belligerent
Continued
217
A more recent statement by an Attorney General construing the Neutrality
Act is found in a press conference held on April 20,1961, by Attorney General
Kennedy, following the Bay of Pigs invasion. Although Attorney General
Kennedy did not formally opine on this matter, the views presented in this press
conference have been widely quoted as the views of the Kennedy Administra­
tion on the Act:
F irst. . . the neutrality laws are among the oldest laws in our
statute books. Most of the provisions date from the first years of
our independence and, with only minor revisions, have contin­
ued in force since the 18th Century. Clearly they were not
designed for the kind of situation which exists in the world
today.
Second, the neutrality laws were never designed to prevent
individuals from leaving the United States to fight for a cause in
which they believed. There is nothing in the neutrality laws
which prevents refugees from Cuba from returning to that coun­
try to engage in the fight for freedom. Nor is an individual
prohibited from departing from the United States, with others of
like belief, to join still others in a second country for an expedi­
tion against a third country.
There is nothing criminal in an individual leaving the United
States with the intent of joining an insurgent group. There is
nothing criminal in his urging others to do so. There is nothing
criminal in several persons departing at the same time. What the
law does prohibit is a group organized as a military expedition
from departing from the United States to take action as a mili­
tary force against a nation with whom the United States is at
peace.
There are also provisions of early origin forbidding foreign
states to recruit mercenaries in this country. It is doubtful whether
any of the activities presently engaged in by Cuban patriots
would fall within the provisions of this law.
11 M. Whiteman, Digest o f International Law 231 (1968). See also Lobel, The
Rise and Decline o f the Neutrality Act: Sovereignty and Congressional War
Powers in United States Foreign Policy, 24 Harv. Int. L.J. 1,4 & n.16 (1983);
N.Y. Times, Apr. 21,1961, § 1 at 6.
10 ( . . . continued)
from m aking neutral territory th e base o f m ilitary o r naval operations, a neutral violates his
neutrality by not preventing h is subjects from carrying out an order of a belligerent for the
building and fitting out of m en o f war. This distinction, although o f course logically correct, is
hair splitting. B ut as, according to the present law, neutral States need not prevent their subjects
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Conclusion
We have attempted to provide a broad overview of the Neutrality Act, its
various provisions, their scope, and their application, by courts and Attorneys
General throughout their history since their original enactment in 1794. To­
gether with our recent memorandum to you, this memorandum should provide
you with a survey of the most prominent authorities relative to these provisions
of criminal law. However, herein we have not attempted to provide a definitive
analysis of the applicability of these provisions to any specific set of facts, and
this memorandum should not be construed as such.
Theodore B. O lso n
Assistant Attorney General
Office o f Legal Counsel
219