Department of Justice Authority to Provide \"Protective Custody\" for Defectors ( 1980 )

Department of Justice Authority to Provide
“Protective Custody” for Defectors
W hile any com ponent o f the D epartm ent o f Justice may contract w ith the D epartm ent of
state to perform the latter's security functions, the D epartm ent o f State is not a uthor­
ized to provide protective custody to defectors w ho are neither leading figures in, nor
direct representatives of, their governm ent.
T he A ttorney G eneral has authority under the Im m igration and Nationality A ct to
prevent departure o f an alien defector w ho is being repatriated under duress and might,
in a particular case, have discretionary authority to provide some sort o f protective
custody for that defector.
U nder § 235(b) o f the Im m igration and N ationality A ct, the Im m igration and N aturaliza­
tion Service has authority to detain a defector w ho is deportable or excludable, until
such time as he is granted political asylum.
If a defector is assaulted,-harassed, specifically threatened, or abducted, so as to bring into
play one of several potentially applicable federal crim inal statutes, federal law enforce­
ment agencies may be authorized to play a role in his protection.
T he Secretary o f State may designate any defector an official guest in order to make it a
federal offense to assault, harass, intim idate, coerce, imprison, threaten, kidnap, o r kill
the defector.
January 17, 1980
M EM ORANDUM OPIN IO N FOR TH E
ACTIN G ASSOCIA TE ATTORNEY G EN ER A L
This responds to your inquiry regarding the authority of Department
of Justice agencies to protect aliens who have defected to the United
States. You ask us to assume:
(1) That the defector is not an obvious source of intelligence
information;
(2) That the defector is within the United States and at or near
an office of the Federal Bureau of Investigations (FBI) or
the Immigration and Naturalization Service (INS);
(3) That the defector is seeking political asylum in the United
States;
(4) That neither the Department of State nor any other govern­
ment agency has “firm information” that the defector is
threatened with either forced repatriation or bodily harm;
and
348
(5) That “the circumstances of the defection are such that a
reasonable person might wish to take security precautions.”
You ask whether, in such a case, any component of the Department of
Justice would have authority to fulfill a request made by the Depart­
ment of State to provide “protective custody” for the defector.
You do not define “protective custody.” We shall assume that it does
not involve taking any action against the defector’s will, and that the
defector consents to any arrangement made for his protection. We shall
also assume that it involves at least protecting the defector against the
possibility of physical attack. For the reasons stated below, we believe
that no component of the Department of Justice has authority even to
protect defectors against the possibility of physical attack in all cases of
the sort you describe, although certain agencies may have authority to
provide protection against the danger of physical attack, and perhaps a
form of protective custody as well, in some cases.
1. U.S. Marshals Service Acting Under Agreement With
the Department of State
Under 31 U.S.C. § 686(a), “[a]ny executive department . . . or any
bureau or office thereof . . . may place orders with any other such
department, establishment, bureau, or office, for . . . work, or services,
of any kind that such requisitioned Federal agency may be in a position
to supply or equipped to render . . . .” This provision would authorize
any component of the Department of Justice to contract with the
Department of State to perform the latter’s security functions. Since the
Marshals Service administers the federal witness protection program, 18
U.S.C. prec. § 3481, 28 C.F.R. § 0.111(c), it is the agency most clearly
“in a position to” protect defectors. Thus, if the Department of State
can itself provide protective custody for defectors, the Marshals Serv­
ice can also do so under an agreement with it.1
In most cases of the sort you describe, however, the Department of
State lacks the authority even to protect defectors against the possibil­
ity of a physical attack. Under 22 U.S.C. § 2666, qualified Department
of State security officers “are authorized to carry firearms for the
purpose of protecting heads of foreign states, official representatives of
foreign governments, and other distinguished visitors to the United
States . . . and members of the immediate families of any such
1 The M arshals Service currently has an agreem ent w ith the D epartm ent o f State to “ provide
m anpow er and equipm ent as determ ined by the M arshals Service, in o rd e r to augm ent the State
D epartm ent's capacity to carry out its protective functions in the most secure m anner.” "subject to
m anpow er availability and norm al mission requirem ents.” This agreem ent provides that the D e p art­
ment o f State is to reim burse the M arshals Service for its w ork. W hether the requisitioning agency
must reimburse the agency providing the service depends on the term s o f the agencies* respective
authorization and appropriations statutes. Sec 13 Com p. G en. 234 (1934): 34 Com p. G en. 42 (1954).
349
persons,” 2 No other statute gives the Department of State explicit au­
thority to protect anyone. It might be suggested that visiting athletes
and artists, for example, are “distinguished foreign visitors” and perhaps
“official representatives” of their governments; if they defect, § 2666
might authorize their protection. Tw o arguments militate against this
interpretation, however.
First, the original version of § 2666, in effect until 1975, authorized
security officers of the Department of State to protect “heads of for­
eign states, high officials of foreign governments and other distin­
guished visitors to the United States . . . and official representatives of
foreign governments and of the United States attending international
conferences, or performing special missions.” Pub. L. No. 84-104, 69
Stat. 188 (1955). There is no indication in the legislative history that the
1975 rewording was intended to alter the scope of the statute. See S.
Rep. No. 337, 94th Cong., 1st Sess. 22 (1975). Because the term “distin­
guished visitors” was linked with “high officials of foreign govern­
ments” in the original version of § 2666 and even more clearly in its
legislative history, see, e.g., H.R. Rep. No. 468, 84th Cong., 1st Sess. 1
(1955), “distinguished visitors” must, we believe, be limited to leading
political, diplomatic, and military figures. We doubt it can be extended
to include all prominent foreign visitors who might happen to defect
while in the United States. The original version of § 2666 also suggests
that the “official representatives” protected are those “attending inter­
national conferences, or performing special missions.” Again, Congress
seemed to have in mind official conferences concerned with political,
military, or diplomatic matters; one of the justifications for the bill was
the need “to guarantee the safety from compromise of the vast amount
of highly classified material needed at an international conference.” S.
Rep. No. 552, 84th Cong., 1st Sess. 2 (1955). Congress may have
intended to expand this category somewhat by omitting the reference
to international conferences and special missions, but there is no reason
to believe that “official representatives” includes persons other than
those acting directly on behalf of their respective governments.
The second argument reinforces this conclusion. In 1972 Congress
amended several statutes to make it a federal crime to assault, threaten,
harass, kidnap, or kill “official guests.” Pub. L. No. 92-539, §§ 101-301,
86 Stat. 1070 (1972), amending 18 U.S.C. §§ 112, 1116, 1201. Congress
created this category of “official guests” because it wanted federal
criminal laws to “operate to protect the rights of visiting artists, aca­
demic and scientific groups, and other groups and individuals who
ought not be beyond the pale of Federal concern.” S. Rep. No. 1105,
92d Cong., 2d Sess. 9 (1972). Congress thought that such visitors would
2 U nder 22 U.S.C. § 2666, D epartm ent o f State security officers are also authorized to protect “ the
Secretary o f State, the D eputy Secretary o f State, official representatives o f the U nited States
G ov ern m en t, and m em bers o f the im m ediate families o f any such persons.'*
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otherwise receive no federal protection against such offenses, see, e.g.,
id. at 7; yet at the time, the predecessor of § 2666 had been in effect for
17 years. When Congress amended §2666 in 1975, it did not include
“official guests” in the new version of the statute; it retained the term
“official representatives.” This again suggests that Congress did not
wish to authorize Department of State security officers to protect even
such prominent foreign visitors as athletes, artists, and academics.3
For these reasons, we seriously doubt that the Department of State
has authority to request the Marshals Service to protect defectors who
are neither leading figures in, nor direct representatives of, their gov­
ernments. Moreover, it is unlikely that an “official representative”
would retain his status if the country he purported to represent at­
tempted to strip him of it. The Marshals Service would, of course, be
able to protect “distinguished foreign visitors” who defect 4—presum­
ably a small proportion of the cases we are considering here.
2. FBI Authority
Under 28 U.S.C. §553 (1), (3), the FBI is empowered “to detect and
prosecute crimes against the United States” and “to conduct such other
investigations regarding official matters under the control of the D e­
partment of Justice and the Department of State as may be directed by
the Attorney General.” W hatever authority these provisions may give
to protect potential victims of federal crimes against whom a specific
threat has been made, we believe that they do not authorize the FBI to
protect defectors in the circumstances we are considering here. Com­
pare 28 U.S.C. §553 with 18 U.S.C. §3481 note (specifically authorizing
the Attorney General to “provide for the security o f ’ government
witnesses who testify against alleged participants in organized crim e.)5
3 22 U.S.C. § 2667 em pow ers D epartm ent o f State security officers "engaged in the perform ance o f
the duties prescribed in section 2666" to "arrest w ithout w arrant and deliver into custody any person
violating section . . . 112 o f title 18 in their presence o r if they have reasonable grounds to believe
that the person to be arrested has com m itted o r is com m itting such a violation.” See also 22 C .F .R .
§2.1. U nder 18 U.S.C. § 112, it is a crim e to assault, harass, intimidate, coerce, threaten, o r similarly
harm foreign officials, internationally p rotected persons, o r official guests. F or reasons w e give in
section 5, infra, we believe that §2667 may enable D epartm ent o f State security officers to provide
some aid to defectors w ho have been specifically threatened o r harm ed. But for tw o reasons, §2667
cannot be read to authorize D epartm ent o f State security officers to protect "official guests," o r others
w ithin the scope o f § 112, if they have not been specifically threatened. First, security officers w hose
mission was to provide such protection w ould be "engaged in the perform ance o f . . . duties" not
enum erated in § 2666. Second, we doubt that the au th o rity to enforce a statute by arresting violators
implies the authority to protect persons w hen no specific threat has been made, especially w hen
another statute expressly authorizes the protection o f a smaller class o f persons.
4 Indeed, the M arshals Service may already have this pow er under the existing agreem ent, sue
note I supra.
5 T h e D irector o f C entral Intelligence, the A tto rn ey G eneral, and the C om m issioner o f Im m igration
and N aturalization can authorize certain aliens to enter the U nited States, notw ithstanding o ther
immigration laws, if their entry "is in the interest o f national security o r essential to the furtherance of
the national intelligence mission." SO U.S.C. §403h. Pursuant to this authority, the National Security
Council and the D irecto r o f C entral Intelligence have established a program for dealing w ith defectors
w ho are valuable to intelligence agencies. T he FBI plays a role in this program , but the program
plainly omits authority for the FBI o r any o th er agency to house o r otherw ise maintain defectors o f
the sort you describe. This, too, suggests the FBI has no role in providing protective custody in the
circum stances w e are considering here.
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3. The Attorney General’s Authority To Enforce § 215 of
the Immigration and Nationality Act
Under 8 U.S.C. § 1103(a), the Attorney General is “charged with the
administration and enforcement of [the Immigration and Nationality
Act] and all other laws relating to the immigration and naturalization of
aliens.” Ordinarily, he carries out this responsibility through the Immi­
gration and Naturalization Service. Section 215(a)(1) of the Act pro­
vides:
Unless otherwise ordered by the President, it shall be
unlawful . . . for any alien to depart from . . . the
United States except under such reasonable rules, regula­
tions, and orders, and subject to such limitations and ex­
ceptions as the President may prescribe.
8 U.S.C. § 1185(a)(1). It appears to us that current regulations would
not, in general, authorize the Attorney General to prevent the depar­
ture of a defector in the circumstances you describe.6 But we believe
that § 215(a)(1) would authorize regulations prohibiting the departure
of, for example, an alien defector who was being repatriated either
under duress or in circumstances that cast doubt on the ability of the
United States to protect defectors.7 If a regulation were issued that
c T h e regulations, 22 C .F .R . §46.2, provide that “ [n]o alien shall depart, or attem pt to depart, from
the U nited States if his d ep artu re w ould be prejudicial to the interests o f the United States under the
provisions o f [22 C .F .R .] §46.3.*' Section 46.3 then specifies the categories o f aliens w hose departure
“ shall be deem ed prejudicial to the interest o f the U nited States." N one o f these categories will apply
to all defectors o f the kind you describe, and few o f the categories are likely to apply to any. Section
46.3(g), for exam ple, prohibits the d ep artu re o f “ (a]ny alien w ho is needed in the United States as a
w itness in . . . any criminal case under investigation o r pending in a court in the United States." An
investigation o f a possible violation o f som e state o r federal crim inal statute, see section 5 infra, might
be w arran ted in some cases o f the kind you describe and the d efector might be needed as a witness at
that investigation. But if. as you specified, there is no “ firm inform ation” that the defector is likely to
be abducted o r physically harm ed, a crim inal investigation will generally not be w arranted. Section
46.3(h) prohibits the dep artu re o f “ (a]ny alien w h o is needed in the United States in connection w ith
any investigation o r proceeding being, o r soon to be. conducted by any official executive, legislative,
o r judicial agency in the U nited States o r by any governm ental com m ittee, board, bureau, commission,
o r body in the U nited Stales, w h eth er national, state, o r local.*' 22 C .F .R . § 46.3(h). This provision
might appear to allow a defector to be kept in the U nited States, if. for exam ple, a governm ent body
planned to ask him form ally about his reception by A m erican officials or about relatives or assets
rem aining in the nation from w hich from he defected and possible diplom atic action concerning them.
But w e doubt that this provision w ould be construed to reach cases in w hich the formal inquiry is a
pretext and the true “ prejudice to the interests o f the U nited States’* stems not from the alien's failure
to appear at the inquiry but from the m anner o r circum stances in w hich he departed. Invoking 22
C .F .R . §46.3(k) w ould present the same problem. It effectively prohibits the departure o f an alien
w hose case “ involves circum stances o f a [character] sim ilar” to the o ther categories under §46.3.
W hile not all o f these categories involve, for exam ple, national security or national defense, see, e.g.,
22 C .F .R . §46.3 (0. (g). (h). they all do involve, at the least, aliens w hose personal characteristics—
their know ledge, intentions, o r legal liabilities—make their d eparture prejudicial to the U nited States.
N one involves an alien w ho does not wish to depart; none involves an alien w hose personal
ch aracteristics are unim portant but w ho w ould depart in a m anner or under circum stances w hich
reflect unfavorably on the United States. F o r these reasons, we believe that new regulations should be
issued if the A ttorney G eneral is to exercise his p o w er under § 215(a)(1) to prevent the departure of
defectors in the circum stances you mention.
7 By its terms, § 2 1 5(a) grants the President full pow er to regulate the departure o f aliens, requiring
only that the regulations be reasonable. T h e legislative history o f § 215(a) show s that C ongress
C o ntinue d
352
effectively prohibited the departure of a defector in the circumstances
you describe, we believe the § 215(a)(1) might, in a particular case,
authorize the Attorney General to provide some form of protective
custody for that defector.
Nothing in § 215(a)(1) suggests that the Attorney General must me­
chanically refrain from acting until a defector whose departure he is
authorized to prevent is boarding an airplane. Implicit in the Attorney
General’s duty to enforce the Immigration and Nationality Act is the
authority to use all reasonable and necessary means to see that it is
enforced. See, e.g., United States v. Krapf 285 F.2d 647, 650 (3rd Cir.
1961); United States v. Jones, 204 F.2d 745, 754 (7th Cir. 1953); United
States v. Kelly, 55 F.2d 67 (2d Cir. 1932). In addition, law enforcement
authorities customarily have great discretion to decide how to enforce
the law. Thus, the Attorney General may determine in a particular case
that in order to prevent a defector from departing he must, for exam­
ple, keep the defector under surveillance so that he can act quickly to
prevent a departure or abduction. For similar reasons, the Attorney
General would, we believe, be entitled to screen a defector’s contacts
with other people or to guard the defector in order to prevent attempts
to coerce the defector to leave.8 These steps would appear to be the
kind of protective custody you have in, mind. They would, we believe,
be authorized if they were part of a good faith effort to enforce
§ 215(a)(1) in light of its underlying policies.
Indeed, the structure of § 215 suggests that the Attorney General has
unusually broad discretion to decide which measures are necessary to
prevent violations of that section. Section 215(a)(1) declares that it is
“unlawful” for certain aliens to leave the United States but prescribes
no penalties for violations. Those penalties, which applied both to aliens
who illegally entered or departed the United States and to American
citizens who attempted to enter or depart without passports, see Immi­
gration and Nationality Act, Pub. L. No. 82-414, ch. 477, § 215(a)(1),
66 Stat. 190 (1952) (prior to 1978 amendment), were repealed by Con­
gress in 1978. Pub. L. No. 95-426, § 707(d), 92 Stat. 993. The legislative
history of the repeal suggests that while Congress did not wish to
“obstruct” or penalize the travel of American citizens, it intended to
leave intact the President’s authority to regulate the entry or departure
iniended the President 10 have “ broad and com prehensive power.*' “ w ide discretion and w ide a u th o r­
ity o f action.*' H.R. Rep. No. 485, 65th Cong., 2d Sess. 2-3 (1918) (accom panying Act of M ay 22,
1918. Pub. L. No. 65-154. ch. 81, § 1(a), 40 Slat. 559. w hich § 2 1 5(a) essentially reenacted. See H.R.
Rep. No. 1365. 82d Cong.. 2d Sess. (1952)). T here is no reason to believe that C ongress did not intend
the President to use this pow er to pursue the im portant humanitarian and foreign policy aims that
w ould be served by preventing the departure o f aliens w ho do not wish to leave. Indeed. C ongress
envisioned the President using his authority as a “ counterstroke*' against the “ propaganda” efforts of
"hostile nations." H.R. Rep. No. 485. 65lh Cong.. 2d Sess. 3 (1918).
MIn this connection we em phasize o u r assum ption that the defector consents to the steps the
A ttorney G eneral is taking to protect him. Ii is not at all clear that the A ttorney G eneral can legally
isolate a defector in this w ay w ithout his consent. Also, we assume that the A ttorney G eneral will
com ply w ith any international obligations the U nited States has to permit contacts w ith defectors.
353
of aliens under § 215(a)(1). See 124 Cong. Rec. 15770 (May 31, 1978)
(remarks of Rep. Eilberg). Moreover, nothing in the language of
§ 215(a)(1) suggests that it is intended to be merely admonitory. Com­
pare 8 U.S.C. § 1185(a) with 36 U.S.C. § 175 (flag code); see Holmes v.
Wallace, 407 F. Supp. 493, 494-97 (M.D. Ala. 1976). The primary
purpose of § 215(a)(1), then, must be to authorize preventive action,
either administrative or judicial, against aliens who are about to depart
illegally. Several other sections of the Immigration and Nationality Act
give great discretion to the administrators charged with their enforce­
ment, thus suggesting that Congress envisioned administrative not judi­
cial action to enforce § 215(a)(1); in addition, as we have said, the
Attorney General is specifically charged with enforcing the Act, 8
U.S.C. § 1103(a). Since prevention is the only means of enforcing
§ 215(a)(1), and the Attorney General is primarily responsible for en­
forcing it, one may reasonably infer that the Attorney General can act
more vigorously to prevent violations of § 215(a)(1) than he might act
in preventing violations of statutes with more diverse enforcement
mechanisms. This further supports the conclusion that in some cases
§ 215(a)(1), by implication, authorizes the Attorney General to provide
defectors whose departure he can prevent with a form of protective
custody.
Since Congress has not explicitly authorized such protective custody
of defectors, however, compare 8 U.S.C. § 1185(a)(1) with 18 U.S.C.
prec. § 3481, we would advise that the Department take steps to inform
the appropriations committees of the Senate and House that we regard
§ 215(a)(1) as authority to do so in isolated instances and on a tempo­
rary basis in connection with the enforcement of § 215(a)(1).
4. Delaying the Grant of Political Asylum
Until an alien is granted political asylum, the Immigration and Natu­
ralization Service has authority to detain him if he fits either of two
categories. We believe it is reasonable to assume that a defector who is
detained can be adequately protected. Under § 235(b) of the Immigra­
tion and Nationality Act, 8 U.S.C. § 1225(b):
Every alien [with exceptions not relevant here] who may
not appear . . . at the port of arrival to be clearly and
beyond a doubt entitled to land shall be detained for
further inquiry to be conducted by a special inquiry
officer.
See generally 8 C.F.R. § 235.3(b). If an alien has legally entered the
country, § 235(b) cannot authorize his detention. But while attempting
to defect, an alien may render himself technically deportable—perhaps
by violating a condition of his visa—or may be about to render himself
354
deportable. Section 242(a), 8 U.S.C. § 1252(a), would then apply:
Pending a determination of deportability in the case of
any alien . . . such alien may, upon warrant of the A ttor­
ney General, be arrested and taken into custody. Any
such alien taken into custody may, in the discretion of the
Attorney General and pending such final determination of
deportability, (1) be continued in custody, or (2) be re­
leased under bond . . . or (3) be released on conditional
parole. But such bond or parole . . . may be revoked at
any time by the Attorney General, in his discretion, and
the alien may be returned to custody under the warrant
which initiated the proceedings against him and detained
until final determination of his deportability.[9]
The Supreme Court has rejected the view that § 242(a) authorizes the
Attorney General to detain an alien only if the alien’s detention is
necessary to secure his appearance at a deportation hearing. See Carlson
v. London, 342 U.S. 524, 534, 541 n.35 (1952). The Court has suggested
that an alien may be detained pending deportation proceedings when^
ever the Attorney General has a “reasonable apprehension” that releas­
ing the alien will injure the national interest, see id. at 538, 542, and has
not required that the “reasonable apprehension” be supported with
specific threats or facts; broad generalizations suffice. See id. at 541,
544. Moreover, as the Court has acknowledged, the legislative history
of § 242(a) makes plain Congress’ intention to vest the Attorney G en­
eral with considerable discretion in deciding which aliens to detain. See
id. at 540-41.10 Since the Attorney General can reasonably conclude
that the national interest would be injured if a defector were severely
harassed or forcibly repatriated, we believe that in the cases we are
considering here § 242(a) would authorize the detention of a deportable
defector who consented11 to be detained.
Since most aliens who have been granted political asylum will not be
deportable or excludable, it appears that the Immigration and Natural­
ization Service has authority to detain a defector only until he is
granted asylum. A defector who is entering the country is likely to
submit his application for asylum to an immigration judge, “who shall
consider that application in connection with an exclusion hearing. . .
44 Fed. Reg. 21253, 21258 (1979). A defector who is already in the
United States will probably submit his application to the district direc­
tor. Id. In that case, regulations provide that:
The applicant shall appear in person before an immigra­
tion officer prior to adjudication of the application. . . .
9 C urrent regulations require that dep o rtatio n proceedings be form ally initiated before an alien is
detained under § 242(a). 8 C .F .R . § 242.2(a).
10 T he G eneral C ounsel's office o f the Im m igration and N aturalization Service informs us that
adm inistrative interpretations o f § 242(a) essentially follow the Suprem e C ourt's.
** See note 12 infra.
355
The district director shall request the views of the De­
partment of State before making his decision unless in his
opinion the application is clearly meritorious or clearly
lacking in substance. The district director may approve or
deny the application in the exercise of discretion.
8 C.F.R. § 108.2. An exclusion hearing is potentially an elaborate affair,
see 8 C.F.R. § 236.2, and creates opportunity for delay. The district
director, and the Department of State where it plays a role, might in
the normal course also contribute to delay. Nothing in the Immigration
and Nationality Act prohibits an immigration judge or district director,
in managing his docket, from giving priority to other cases over one
which both parties are willing to delay. If the defector consents,12
then, and if he is otherwise lawfully in custody, the Immigration and
Naturalization Service might delay action on his application for asylum
and keep him in custody until any danger to him subsides and until, in
due course, his request for asylum is granted. This approach appears to
authorize protective custody for some of the defectors your memoran­
dum describes.
5. The Federal Law Enforcement Role if a
Defector Is Assaulted or Threatened
The Department of Justice has authority to protect defectors of the
kind you describe only in the circumstances we have discussed. You
should be aware, however, that once a defector is assaulted, harassed,
specifically threatened, or abducted, federal law enforcement agencies
may be authorized to play a role. Specifically, we believe, for reasons
stated below, that the Secretary of State may designate a defector an
“official guest” and in that way give federal law enforcement agencies
clear jurisdiction over any assaults, harassment, threats, and similar
offenses against the defector, without regard to the interstate character
of the offense or to any of the other usual bases for federal law
enforcement jurisdiction. This conclusion may be important to you in
dealing with defections in the future.
As we noted earlier, several federal statutes make it a crime to injure
12 If a d efecto r does not consent, he will be able to invoke portion o f § 242(a) itself to gain relief:
A ny c o u rt o f com petent jurisdiction shall have authority to review or revise any
d eterm ination o f the A tto rn ey G eneral concerning detention, release on bond, or
parole pending final decision o f d eportabilily upon a conclusive show ing in habeas'
c orpus proceedings that the A tto rn ey G eneral is not proceeding w ith such reasonable
dispatch as may be w arran ted by the particular facts and circum stances in the case of
any alien to determ ine deportability.
8 U.S.C. § 1252(a). He may also be able to raise serious constitutional questions about his continued
detention. See Stack v. Boyle. 342 U.S. I (1952); compare Carlson v. London. 342 U.S. 524 (1951). with
Barcnhlalt v. United Stales. 360 U.S. 109. 128 (1959). 1
356
“official guests” of the United States in these ways. For example,
18 U.S.C § 112 provides:
(a) Whoever assaults, strikes, wounds, imprisons, or
offers violence to a foreign official, official guest,
or internationally protected person or makes any
other violent attack upon the person or liberty of
such person, or . . . makes a violent attack upon
his official premises, private accommodation, or
means of transport or attempts to commit any of
the foregoing shall be fined not more than $5,000
or imprisoned not more than three years, or both.
(b) Whoever willfully—
(1) intimidates, coerces, threatens, or harasses a
foreign official or an official guest or . . .
(2) attempts to intimidate, coerce, threaten, or
harass a foreign official or an official guest . . .
* * * * *
shall be fined not more than $500 or imprisoned not more
than six months, or both.
Other statutes make it a federal offense unlawfully to kill or attempt to
kill an official guest, id. § 1116(a), to kidnap an official guest, id.
§ 1201(a)(4), or to threaten to assault, kidnap, or kill an official guest,
whether or not in connection with an extortionate demand, id. § 878 (a),
(b). For purposes of applying these statutes, an official guest is defined
as “a citizen or national of a foreign country present in the United
States as an official guest of the Government of the United States
pursuant to designation as such by the Secretary of State.” 18 U.S.C.
§ 1116(b)(6).13 We believe that the Secretary of State can designate a
defector as an official guest solely in order to bring him within the
coverage of these criminal statutes, thus enabling federal law enforce­
ment agencies14 to act against anyone who assaults, threatens, harasses,
coerces, kidnaps, or otherwise similarly injures a defector.
As we have noted, Congress created the category of official guests
because it wanted federal criminal law to “operate to protect the rights
of visiting artists, academic and scientific groups,” and similar groups
and individuals. S. Rep. No. 1105, 92d Cong., 2d Sess. 9 (1972). Certain
aspects of the legislative history suggest that Congress did not intend to
permit foreign visitors to be classified as official guests simply because
they were threatened. For example, in suggesting to Congress the
13 T he Secretary o f State has delegated his authority to designate official guests to the D eputy
U nder Secretary o f State for M anagement. 22 C .F .R . §2.4.
14 As we have said the FBI has general authority “ to detect and prosecute crim es against the
United States" and to conduct certain o th er investigations. 28 U.S.C. § 553 (1), (3). D epartm ent of
State security officers are specifically authorized, “ w hile engaged in the perform ance o f the duties
prescribed" by statute, see pp. 2-4 supra, “ to arrest w ithout w arrant and deliver into custody any
person violating section . . . 112 o f title 18 in their presence o r if they have reasonable grounds to
believe that the person to be arrested has com m itted o r is com m itting such a violation.'* O ther law
enforcem ent agencies have some authority to arrest persons they reasonably believe t18 U.S.C. § 3056(a) (Secret Service).
357
language that became the definition of “official guest,” the then Secre­
tary of State said, “This will allow me to designate individuals or
groups of individuals who are here for important international sports or
other events. . . . This would accord protection to foreign nationals
who visit the United States for such special reasons as to compete in
international sports events.” Id. at 15-16. In general, Congress focused
on threats to visitors which were, at least in part, the result of the
visitors’ special role in activities of interest to both their country and
ours. Congress was also concerned with the implicit obligation we have
to their respective countries to protect such visitors. If these were the
bases of Congress’ decision to make it a crime to assault or threaten
“official guests,” that category cannot be extended to reach ordinary
visitors who are threatened only because they have defected.15
The legislative history, however, contains no clear references to
reciprocity, or to the fear that Americans will be inadequately pro­
tected abroad; this suggests that Congress may have been concerned
less with international obligations than with our international reputa­
tion. That reputation would be injured if a defector were attacked or
threatened by the nation from which he defected. Moreover, while the
legislative history does not refer to the danger that defectors might be
forcibly repatriated, Congress clearly had in mind politically motivated
threats and acts against foreign visitors; the killing of Israeli athletes at
Munich in 1972 was repeatedly cited as an example of the sort of crime
which would have to be left entirely to the states if federal criminal
laws were not extended to official guests. See, e.g., id. at 9, 15. And
nothing in the statutes or their legislative history makes an exception
for politically motivated violence or coercion by the nation of which
the guest is a citizen.
Finally, Congress carefully considered the issues of federalism in­
volved in creating a category of “official guests” and allowing the
federal government, in addition to the states, to punish certain crimes
against them. For example, the sponsor of the provision including
“official guests” in the several federal criminal statutes gave, as his
principal reason, “State governments simply cannot cope alone with
crimes involving international politics and diplomacy.” Id. at 9. In
language we have already quoted, the Senate Committee noted that the
protection would extend generally to “groups and individuals who
16 We do not believe that the Secretary of State must designate a visitor an official guest before he
enters the country. The statutory definition arguably requires that an official guest be “present in the
United States . . . pursuant to designation,” suggesting that a person who is present in the United
States on his own initiative cannot qualify as an official guest. This language is not, however,
unequivocal; it does not specify that an official guest must have entered the country pursuant to a
designation. The phrase “pursuant to designation as such by the Secretary of State” may, we believe,
be read simply to modify “official guest,” describing how one attains that status. Moreover, the
legislative history indicates that the category of "official guest” was created precisely in order to
provide a federal role in enforcing laws making it illegal to assault, harass, or kidnap foreign nationals
visiting the United States. There seems to be little reason to insist that the Secretary must foresee,
before the visitors enter the country, that they will be threatened.
358
ought not be beyond the pale of Federal concern.” Id. This emphasis
on federalism suggests that the defining characteristic of official guests
is their importance to foreign policy and related concerns of the federal
government; &ie treatment of defectors is at least as important to
foreign policy as the treatment of visiting artists and athletes. In addi­
tion, if there is a possibility that a defector will be harassed or coerced
by the nation from which he has defected, the federal government is
likely to be involved in negotiations and diplomatic maneuvers which
must be coordinated with law enforcement efforts undertaken on the
defector’s behalf. For these reasons, we believe that the Secretary of
State can designate any defector an official guest in order to make it a
federal offense to assault, harass, intimidate, coerce, imprison, threaten,
kidnap, or kill the defector.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
359