Presidential Power Concerning Diplomatic Agents and Staff of the Iranian Mission ( 1980 )


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  •   Presidential Power Concerning Diplomatic Agents and Staff
    of the Iranian Mission
    W h ile th e re is a u th o rity fo r im posing som e tra v e l re stric tio n s on Iranian dip lo m atic
    p erso n n el u n d e r th e V ien n a C o n v e n tio n on D ip lo m atic R e la tio n s an d c u sto m a ry in te r­
    n atio n al law , as w ell as u n d e r d o m e stic law , th o se so u rc e s o f law g e n e ra lly sta te that
    d ip lo m ats m ay not be p laced in c irc u m sta n c e s ta n ta m o u n t to ho u se a rre st, o r barred
    from leav in g th e c o u n try , ev e n as an a c t o f reprisal for b re a c h e s o f d ip lo m atic im m u­
    n ity b y Iran .
    S u b jectin g Iran ian d ip lo m a tic p erso n n el to p ro secu tio n u n d e r the crim in al p ro v isio n s o f
    th e In te rn a tio n a l E m e rg e n c y E c o n o m ic P o w e rs A c t, e v e n if d o n e in reprisal for
    Iran ian b re a c h e s o f in tern atio n a l law an d acco m p a n ie d by all ap p licab le p ro te c tio n s
    affo rd ed by th e U n ited S tates C o n s titu tio n , w o u ld raise serio u s q u estio n s u n d er in te rn a ­
    tional law .
    January 8, 1980
    M EM ORANDUM O PIN IO N FOR T H E A TTORNEY G EN ER A L
    On November 14, 1979, you asked this Office to review certain
    questions relating to the situation in Iran, and during the last few weeks
    we have provided you our views on a number of these questions orally.
    In this memorandum we summarize the central legal issues involved in
    taking actions against Iranian diplomatic personnel in this country, and
    set forth our reasoning and conclusions. We address, principally, the
    following questions:
    1) May the President restrict the movement of Iranian diplomatic
    agents and staff personnel within the United States, including, if
    necessary, confinement to embassy grounds;
    2) May he prevent these persons from departing the country;
    3) May he subject these persons to prosecution for violations of the
    International Emergency Economic Powers Act, 
    50 U.S.C. § 1705
    ?
    We conclude that although the President may possess constitutional
    and statutory power to take any or all of these actions, each of them
    raises serious international law questions.
    I. Restricting the Movement of Members of the Iranian Mission
    A. International Law
    The rights of diplomatic personnel are governed by the Vienna
    Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227,
    174
    T.I.A.S. No. 7502, ratified by Iran, the United States, and all major
    countries of the world. Any doubts that may have existed concerning
    whether the Treaty automatically became part of our domestic law
    upon its ratification have been removed by the recent passage of the
    Diplomatic Relations Act, 22 U.S.C. §§ 254a-256, a major purpose of
    which was to codify the Convention’s immunity provisions as part of
    our law. See generally S. Rep. No. 958, 95th Cong., 2d Sess. (1978).
    As an introductory matter, the Convention and the Act establish
    categories of diplomatic personnel, and grant them varying degrees of
    immunity. Under Articles 1, 31, and 37 of the Convention and 22
    U.S.C. §§254a and 254d, diplomatic agents and their families enjoy
    complete criminal immunity and nearly complete civil immunity. Mem­
    bers of the administrative and technical staff and their families enjoy
    complete criminal immunity and civil immunity for acts in the course of
    their duties. Service staff of the mission enjoy immunity for acts per­
    formed in the course of their duties. The Act implements these immuni­
    ties by providing that actions brought against individuals who are
    entitled to immunity in respect to them under the Convention or the
    Act shall be dismissed (§ 254d).
    The Convention has a number of substantive provisions that are
    relevant here. First, Article 22 provides unconditionally that the prem­
    ises of the mission shall be inviolable, and places a special duty on the
    receiving state to protect the premises against intrusion and to refrain
    from searching it. Iran is clearly in massive breach of this A rticle.1
    Article 26 requires the receiving state to guarantee members of the
    mission 2 freedom of movement in the country, subject to regulations
    establishing national security zones. This Article was adopted against a
    background of longstanding travel restrictions imposed by nations on a
    reciprocal basis. (For example, after World War II the Soviet Union
    limited travel by members of diplomatic missions in Moscow to 50
    kilometers from the capital, absent special permission. The United
    States and others retaliated by imposing reciprocal restrictions on the
    Soviet Union and other offending nations.) An amendment to the A rti­
    cle that would have stated that prohibited zones must not be so exten­
    sive as to render freedom of movement illusory failed of passage. This
    does not constitute an affirmative endorsement of highly restrictive
    travel zones, however, since a statement to the same effect as the failed
    amendment was already in the commentary to the Article. At any rate,
    travel restrictions have continued on a more or less restrictive basis
    since adoption of the Convention. See generally E. Denza, Diplomatic
    'T h e U nited Slates could confine m em bers o f the Iranian Mission to the premises w ithout violating
    this A rticle, although such an action could violate A rticle 29’s prohibition o f arrest.
    2U nder 22 U.S.C. §254a, the term “ m em bers o f a mission" includes diplom atic agents, adm inistra­
    tive and technical staff, and service staff, as defined in A rticle 1 o f the C onvention.
    175
    Law, Commentary on the Vienna Convention on Diplomatic Relations,
    115-18 (1976).
    Our own legislative history of the Convention suggests that “protec­
    tive custody” of diplomatic personnel could be justified under Articles
    26 and 29. The State Department’s Legal Adviser testified before the
    Senate Foreign Relations Committee that these provisions could be
    used in situations involving armed conflict to justify placing diplomats
    in protective custody. He pointed out that while Article 29 prohibits
    arrest, it also provides that the receiving state shall take appropriate
    steps to prevent attacks on a diplomat’s person. 7 M. Whiteman, Digest
    of Int’l Law 442 (1970).
    This argument, however, is subject to two rejoinders. First, reconcil­
    ing Article 26, allowing travel restrictions, with Article 29, forbidding
    arrest, requires a legal and practical distinction at some point between
    travel restrictions and arrest. The practice of travel restrictions against
    which the Convention was drafted had never reached the level of
    house arrest. Second, in the Convention the United States opposed a
    provision now found in Article 39.2, stating that immunities such as
    those against arrest continue even in case of war. We argued that it was
    necessary to intern enemy diplomats at the outbreak of war, citing the
    World War II experience. We proposed an amendment that failed,
    which would have allowed the receiving state in time of national
    emergency, civil strife, or armed conflict to institute appropriate meas­
    ures of control of mission personnel and their property, including pro­
    tective custody to insure their safety. See 7 M. Whiteman, supra, at 441.
    The history of the failed American amendment is ambiguous enough
    that it does not necessarily preclude limited imposition of protective
    custody relying directly on the duty in Article 29 to “take all appropri­
    ate steps to prevent any attack on” a diplomat’s person, but a protective
    custody theory would be very hard to reconcile with an accompanying
    ban on departure from the country. Indeed, Article 44 provides that
    even in case of armed conflict, the receiving state must allow mission
    personnel an opportunity to leave the country at the earliest possible
    moment. In short, house arrest of mission personnel accompanied by a
    ban on their return to Iran cannot fairly be argued to be within the
    substantive terms of the Convention.
    Article 47 of the Convention provides that a state may discriminate
    against another state by applying any of the provisions of the Conven­
    tion restrictively “because of a restrictive application of that provision
    to its Mission in the sending state.” The background to this provision
    indicates that it authorizes reciprocally unfavorable treatment only to
    an extent that is not clearly contrary to the terms of the Convention.
    Denza, supra, at 283-84. This means that relatively restrictive travel
    zones imposed by another country would allow us to impose restrictive
    176
    travel zones on a reciprocal basis, but would not justify our breach of
    the Convention, for example by invading their mission.
    The Convention’s preamble affirms “that the rules of customary
    international law should continue to govern questions not expressly
    regulated” by its provisions. Customary international law allows repris­
    als, which are breaches of a treaty’s terms in response to a breach by
    another party. To be legal, reprisals must respond in a proportionate
    manner to a preceding illegal act by the party against whom they are
    taken. See G. Schwarzenberger, A Manual of International Law 184
    (5th ed. 1967).3 Identical reprisals are the easiest to justify as propor­
    tionate, because subjective comparisons are not involved. Thus, in the
    current crisis, the taking of Iranian diplomats as “hostages” (or a lesser
    restriction on their freedom of movement that approaches imprison­
    ment) would clearly be a proportionate response; reducing the immu­
    nity of Iranian diplomats from criminal prosecution would be more
    difficult to justify.
    At this point a special difficulty arises. International law scholars
    have identified an exception to the law of reprisals: “diplomatic envoys
    may not be made the object of reprisals, although this has occasionally
    been done in practice.” H. Lauterpacht, 2 Oppenheim’s International
    Law 140 (7th ed. 1952), citing Grotius. Customary international law
    often has no firmer basis than the opinions of the scholars, bolstered by
    their own reputations and the precedent they can summon. This excep­
    tion to the reprisals doctrine can claim the support of some highly
    reputable scholars.
    It is unclear whether this exception is meant to refer only to the
    illegality of taking reprisals against diplomats in response to unrelated
    breaches by the sending state (e.g., a blockade), or whether it is meant
    to extend to a ban on reprisals against diplomats even when the sending
    state commits a breach of diplomatic immunity. The former interpreta­
    tion has the evident merit of preventing routine harassment of diplo­
    mats, and would leave a role for reprisals in such extreme circum­
    stances as the present Iranian actions.
    Nevertheless, the exception is stated in terms suggesting that reprisals
    against diplomats are never legal. As a result, if the United States were
    to take action amounting to a breach of the Vienna Convention, such as
    arresting Iranian diplomats or barring their departure from the country,
    a reputable argument could be made that our action was illegal, despite
    major previous breaches by the other side. Here it can be argued that
    Article 47 of the Vienna Convention means to forbid full-scale reprisals
    against diplomats, no matter the provocation. It would be pointed out
    3 This principle is also codified in the V ienna C onvention on the Law o f Treaties, A rticle 60, Senate
    Exec. L., 92d Cong., 1st Sess. (1971), w hich allow s suspending the operation o f a treaty in w hole o r in
    part upon the material breach o f an o th er party, but w hich is not yet in force and has not been ratified
    by the United Stales.
    177
    that economic reprisals (blocking assets, boycotts, or even blockade)
    stand as substitute remedies.
    There may be added support for the view that reprisals against
    diplomats are never legal in the World Court’s recent order granting an
    “indication of Provisional Measures” in United States o f America v.
    Iran. For the Court ordered release of the hostages, including diplo­
    matic personnel, despite Iran’s argument that the hostage-taking should
    be viewed as “secondary” to “25 years of continual interference by the
    United States in the internal affairs of Iran, . . . and numerous crimes
    perpetrated against the Iranian people, contrary to . . . all interna­
    tional and humanitarian norms.” The seriousness of these allegations did
    not convince the Court that imprisoning diplomats was a fit reprisal.
    Still, the Iranian action was not presented as a reprisal for breaches of
    diplomatic immunity, and the Court did not speak to that issue. It
    ordered release “in accordance with the treaties in force between the
    two States, and with general international law.”
    In any event, it is our judgment that international law casts consider­
    able doubt on the legality of any reprisal against diplomats.
    B. Dom estic L aw Im plem enting International L aw
    It seems clear that the Vienna Convention and surrounding principles
    of customary international law have been incorporated as part of our
    domestic law. First, Article VI of the Constitution makes treaties part
    of the supreme law of the land, along with the Constitution and stat­
    utes. The Vienna Convention, ratified by the United States, includes an
    affirmation in its preamble that rules of customary law should govern
    questions not expressly regulated by the terms of the Convention.
    Moreover, the Supreme Court has recognized customary interna­
    tional law as part of our domestic law. See L. Henkin, Foreign Affairs
    and the Constitution 221 (1972). In The Paquete Habana, 
    175 U.S. 677
    ,
    700 (1900), the Supreme Court held that under international law, fishing
    vessels belonging to enemy nationals were exempt from capture and
    condemnation by American vessels:
    International law is part of our law, and it must be
    ascertained and administered by the courts of justice of
    appropriate jurisdiction, as often as questions of right de­
    pending upon it are duly presented for their determina­
    tion.
    A principal purpose of the Diplomatic Relations Act of 1978, 22
    U.S.C. § 254a et seq., was to “codify the privileges and immunities
    provisions of the Vienna Convention as the sole United States law on
    the subject,” S. Rep. No. 958, supra, at 1, and to repeal inconsistent
    statutes. The Act also provides, in § 254c:
    178
    The President may, on the basis of reciprocity and under
    such terms and conditions as he may determine, specify
    privileges and immunities for members of the mission,
    their families, and the diplomatic couriers of any sending
    state which result in more favorable treatment or less
    favorable treatment than is provided under the Vienna
    Convention.
    The Report of the Senate Foreign Relations Committee, No. 958, supra,
    at 5, explains that this provision “reflects article 47 of the Convention
    which allows such treatment.” The Report goes on:
    The conditions under which U.S. diplomatic personnel
    carry out their official functions and lead their lives in
    certain hardship areas dictate their enjoyment of increased
    protection from harassment as a result of arbitrary appli­
    cation of local law. This provision permits less favorable
    treatment than the Vienna Convention and covers those
    cases where certain nations restrict the privileges and
    immunities of U.S. diplomatic personnel abroad. Any use
    of the discretion described in this section must be on a
    reciprocal basis with the nations involved.
    It is unclear whether this section means to go further than to codify
    Article 47 of the Convention, which allows only restrictive applications
    of the Convention’s terms. It can be read to provide domestic authority
    to exercise the international law of reprisals, which would, however,
    presumably include the exception for reprisals against diplomats. The
    legislative history is barren of guidance except for the discussion quoted
    above, which refers to Article 47 and which seems to contemplate
    reciprocally restrictive travel provisions.
    There is explicit authority for travel regulations in the Foreign Rela­
    tions Authorization Act of 1979; Pub. L. No. 95-426, 
    22 U.S.C. §2691
    note:
    For the purpose of implementing general principles of the
    Final Act of the Conference on Security and Cooperation
    in Europe (signed at Helsinki on August 1, 1975) empha­
    sizing the lowering of international barriers to the free
    movement of people and ideas and in accordance with
    provisions of the Vienna Convention on Diplomatic Rela­
    tions establishing the legal principles of nondiscrimination
    and reciprocity, it shall be the general policy of the
    United States to impose restrictions on travel within the
    United States by citizens of another country only when
    the government of that country imposes restrictions on
    travel by United States citizens within that country.
    179
    The legislative history of this provision refers to it as “self-
    explanatory,” and is otherwise unilluminating. H.R. Rep. No. 1160, 95th
    Cong., 2d Sess. (1978).
    Thus there is ample international and domestic authority for travel
    restrictions on Iranian diplomatic personnel. But the line must be drawn
    at that point—anything amounting in substance to holding them hostage
    would entail a possible breach of international law. Instead, the tradi­
    tional remedy against diplomats has been to declare them persona non
    grata and to expel them, even in cases of espionage.4 There is even a
    possibility that internment of Iranian diplomatic personnel would run
    afoul of 
    18 U.S.C. § 112
    , which makes it a federal crime to assault or
    imprison a foreign diplomat. This provision, passed in response to
    terrorism at the Munich Olympics and elsewhere, focuses on ordinary
    criminal activity, but it is not in terms inapplicable to governmental
    abuse of diplomatic privileges and immunities.
    C. Presidential Power Over D iplom atic Personnel
    The President’s authority over foreign diplomatic personnel derives
    from his constitutional power in Article II to “receive Ambassadors
    and other Public Ministers.” From this derives the President’s power to
    grant or withdraw recognition to foreign governments and their minis­
    ters, a power regarded as textually committed to the Executive alone.
    See Jones v. United States, 
    137 U.S. 202
    , 212 (1890); Baker v. Carr, 
    369 U.S. 186
    , 212-13 (1962); see generally 2 B. Schwartz, The Powers of the
    President 104-09 (1963). The President’s well-established power to rec­
    ognize foreign governments without the participation of the other
    branches is a greater power than that involved in receiving a particular
    Ambassador of a recognized government, although it may flow logi­
    cally enough from that power. As a consequence, the President’s power
    to accept or reject a particular envoy has been beyond serious question
    since President Washington demanded the recall of Citizen Genet, the
    French Minister. As early as 1855, the Attorney General gave an
    opinion that the right of reception extends to “all possible diplomatic
    agents which any foreign power may accredit to the United States,” 7
    Op. A tt’y Gen. 186, 209 (1855).
    The legal status of foreign diplomatic personnel in the United States
    has its roots in these constitutional considerations and was well-defined
    long before the Vienna Convention codified it. In effect, persons with
    full diplomatic status bear the same relation to the United States as the
    government they serve; they are not subject to domestic law, and our
    rights and remedies with respect to them are diplomatic only. See
    4T his is not the case for individuals w ith only a qualified im m unity from crim inal jurisdiction. T he
    U nited States does not recognize violation o f the espionage laws as part o f a foreign em ployee's
    official function, and the lim ited im m unity is no bar to prosecution for such violations. See United
    States v. Egorov, 
    222 F. Supp. 106
    , 107-08 (E .D .N .Y . 1963); Untied States v. Melekh, 
    190 F. Supp. 67
    ,
    87-89 (S.D . N.Y. 1960).
    180
    Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 138-39 (1812)
    (Marshall, Ch. J.), for a classic statement of this. The first American
    statutes granting immunity from our domestic law to diplomatic person­
    nel date from 1790, and since the Citizen Genet affair, Presidents have
    declared foreign diplomatic personnel persona non grata, expelling them
    without explanation or process. Neither expulsion without procedural
    protections nor travel restrictions of the sort familiar both before and
    after ratification of the Vienna Convention would be tolerable for
    American citizens or nondiplomatic aliens. Professor Henkin concludes
    that “foreign governments, however, and probably foreign diplomats in
    their official capacity, have no constitutional rights, and there are no
    constitutional obstacles, say, to tapping wires of foreign embassies.”
    Henkin, supra, at 254. (Professor Henkin’s example regarding wiretap­
    ping presages a position taken by the Office of Legal Counsel in
    response to a request of the Permanent Select Committee on Intelli­
    gence in April, 1978.)
    At the same time, aliens within our international jurisdiction are
    subject to our laws and are entitled to claim constitutional protections
    when the government has not granted them immunity. See M athews v.
    Diaz, 
    426 U.S. 67
    , 77 (1976); Wong Wing v. United States, 
    163 U.S. 228
    ,
    237-38 (1896).
    A consistent pattern emerges from these authorities. Diplomatic per­
    sonnel, standing as surrogates for the nation they represent, are without
    the constraints of our domestic law and its protections as well. For
    example, no one would suggest that a diplomat has a First Amendment
    right to disparage the President without suffering expulsion as a conse­
    quence. But to the extent that immunity does not hold, with the expo­
    sure to our domestic law comes equally an opportunity to take advan­
    tage of its protections. Thus, no one would suggest that an alien may be
    tried for espionage without the observance of due process guarantees.
    See A bel v. United States, 
    362 U.S. 217
     (1960).
    In addition to these constitutional sources, the President can draw
    authority over diplomats from the provisions of the Diplomatic Rela­
    tions Act and the Foreign Relations Authorization Act that are summa­
    rized above. Finally, there is a little-known 1868 statute, now 
    22 U.S.C. § 1732
    :
    Whenever it is made known to the President that any
    citizen of the United States has been unjustly deprived of
    his liberty by or under the authority of any foreign gov­
    ernment, it shall be the duty of the President forthwith to
    demand of that government the reasons of such imprison­
    ment; and if it appears to be wrongful and in violation of
    the rights of American citizenship . . . , the President
    shall use such means, not amounting to acts of war, as he
    may think necessary and proper to obtain or effectuate
    181
    the release; and all the facts and proceedings relative
    thereto shall as soon as practicable be communicated by
    the President to Congress.
    This provision appears never to have been invoked; at least it has
    never been relied on in litigation to support presidential action. It was
    passed in response to a dispute with Great Britain after the Civil War,
    in which that nation was trying its former subjects, who had become
    naturalized Americans, for treason. A rejected amendment to the bill
    would have authorized the President to suspend all commerce with the
    offending nation, and to round up foreign citizens found in this country
    as hostages; even this harsh provision, however, excepted diplomatic
    personnel. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445 (1868). There­
    fore, if this provision is to be relied on, it should be invoked for actions
    not involving diplomats.
    In conclusion, the President has plenary powers to control the pres­
    ence and movement in this country of foreign diplomatic personnel,
    short of violations of international law.
    II. Departure Controls
    The Immigration and Nationality Act, 
    8 U.S.C. § 1185
    (a), provides
    Unless otherwise ordered by the President, it shall be
    unlawful—
    (1) for any alien to depart from . . . the United States
    except under such reasonable rules, regulations, and
    orders, and subject to such limitations and exceptions as
    the President may prescribe. . . .
    It is clear from the structure of the statute that the term “alien” as used
    in §1185 includes diplomatic personnel. The definitions section of the
    Act, § 1101(a), defines alien as any person not a citizen of the United
    States (3), and includes diplomatic personnel among nonimmigrant
    aliens (15). Section 1102 of the Act makes the provisions on exclusion
    or deportation inapplicable to diplomatic personnel, except as otherwise
    provided. There is no parallel section exempting diplomatic personnel
    from departure controls.
    Regulations implementing § 1185 have been issued by the Department
    of State, but are implemented by the departure control officers of the
    Immigration and Naturalization Service (INS). 
    22 C.F.R. §46
    . The
    regulations provide in §46.2 that no alien (defined in the statute’s terms)
    shall depart, or attempt to depart, from the United States if his depar­
    ture would be prejudicial to the interests of the United States under the
    provisions of §46.3. Departure control officers, having reason to be­
    lieve that §46.3 applies, are instructed to serve the alien with a written
    temporary order directing him not to depart. In turn, §46.3 defines
    categories of aliens whose departure shall be deemed prejudicial to the
    182
    interests of the United States, and includes: fugitives from justice; aliens
    needed as witnesses or parties to criminal cases under investigation or
    pending in our courts; aliens needed in connection with investigations
    or proceedings being conducted by any official executive, legislative, or
    judicial agency in the United States; and aliens who may disclose
    defense information, engage in activities impeding our national defense,
    wage war against the United States, or help to deprive the United
    States of sources of supplies or materials vital to our national defense.
    There is also a final catchall category (k) for any alien whose case does
    not fall within any of the specified categories, “but which involves
    circumstances of a similar character rendering the alien’s departure
    prejudicial to the interests of the United States.” Any of a number of
    these provisions would seem adaptable to the present situation.
    Section 46.7 of the regulations provides that in the absence of appro­
    priate instructions from the State Department’s Bureau of Security and
    Consular Affairs, departure control officers shall not exercise their
    authority to bar exit in the case of aliens seeking to depart in the status
    of diplomatic personnel (within a definition in § 1101(a)(15) that closely
    resembles those in the Diplomatic Relations Act). It goes on to provide,
    however, that in “cases of extreme urgency, where the national security
    so requires,” a departure control officer may preliminarily exercise
    authority to bar exit pending the outcome of consultation with the
    Administrator, “which shall be undertaken immediately. In all cases
    arising under this section, the decision of the Administrator shall be
    controlling: Provided, That any decision to prevent the departure of an
    alien shall be based upon a hearing and record as prescribed in this
    part.” The regulations provide that an alien served with a notice of
    temporary prevention of departure may within 15 days request a hear­
    ing before a Special Inquiry Officer of the INS. If a hearing is re­
    quested, the alien is entitled to appear, to be represented by counsel of
    his choice, and to have a trial-type hearing. The Special Inquiry Officer
    recommends disposition, and the record and any written appeals are
    transmitted to the Regional Commissioner, whose decision is adminis­
    tratively final.
    III. Restricting Criminal Immunity of Diplomatic Personnel
    Under the Vienna Convention, diplomatic agents and administrative
    and technical staff are entitled to complete immunity from the criminal
    jurisdiction of the host state. However, the exercise of criminal jurisdic­
    tion over foreign diplomatic personnel might, as a matter of interna­
    tional law, be justified as a reprisal for Iranian breaches of the Conven­
    tion. As noted above, there is a substantial argument that all reprisals
    against diplomatic personnel are illegal.5 Moreover, reprisals become
    5Support for such an argum ent in this application m ight be found in the W orld C o u rt's o rd e r to
    Iran to afford o u r diplom ats “ im m unity from any form o f crim inal jurisdiction."
    183
    more difficult to justify as they become less clearly reciprocal in terms
    of nature or severity to the breach that has occurred. See
    Schwarzenberger, supra, at 184. Thus, house arrest of Iranian diplo­
    mats, because of its similarity to the imprisonment of our personnel, is
    easier to justify than criminal prosecution of a sort not yet imposed
    upon our hostages. There is also a serious danger that a reprisal of this
    sort might be thought to justify the exercise of Iranian criminal jurisdic­
    tion, in particular regarding espionage, over our personnel. Therefore,
    if any criminal jurisdiction is asserted over Iranian diplomatic person­
    nel, it is particularly important to specify the aspects of the criminal
    law to which they are being subjected. This could be done by notifica­
    tion that violations of Executive Order No. 12,170 and the criminal
    provisions of the IEEPA , 
    50 U.S.C. § 1705
    , will result in criminal
    prosecution.
    Moreover, as a matter of American constitutional law, it is clear from
    the preceding analysis that Iranian personnel subjected to criminal
    prosecution would be entitled to due process protections. Before
    encountering criminal liability, they would need to be placed on notice
    that we regard their conduct as subject to our domestic criminal law, in
    particular the provisions of the IEEPA.
    Although there is some basis in law for subjecting Iranian diplomatic
    personnel to our criminal statute enforcing the freeze order, assertion of
    our criminal jurisdiction over these persons is fraught with danger.
    Moreover, since the existence of the freeze should prevent those deal­
    ing with the affected governmental instrumentalities from distributing
    property to them, it is not apparent that serious violations are likely to
    occur. We urge strongly against any formal assertion that Iranian diplo­
    matic personnel are subject to this aspect of our criminal law.
    L   arry   A. H   am m ond
    D eputy Assistant A ttorney General
    Office o f L egal Counsel
    184